>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: AURELIUS INVESTMENT, LLC, Et Al., Appellants, v. Commonwealth of PUERTO RICO, Et Al., Appellees. Assured Guaranty Corporation, Et Al., Appellants, v. Financial Oversight and Management Board, Et Al., Appellees. Unión De Trabajadores De La Industria Eléctrica Y Riego (Utier), Appellant, v. Puerto Rico Electric Power Authority, Et Al., Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 18-1671, 18-1746, 18-1787\\n\\n AURELIUS INVESTMENT, LLC, ET AL.,\\n Appellants,\\n\\n v.\\n\\n COMMONWEALTH OF PUERTO RICO, ET AL.,\\n Appellees.\\n ____________________\\n\\n ASSURED GUARANTY CORPORATION, ET AL.,\\n Appellants,\\n\\n v.\\n\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD, ET AL.,\\n Appellees.\\n ____________________\\n\\n UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO (UTIER),\\n Appellant,\\n\\n v.\\n\\n PUERTO RICO ELECTRIC POWER AUTHORITY, ET AL.,\\n Appellees.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Laura Taylor Swain,* U.S. District Judge]\\n\\n\\t\\n\\n\\n\\n\\n* Of the Southern District of New York, sitting by designation.\\n\\f Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n Theodore B. Olson, with whom Matthew D. McGill, Helgi C.\\nWalker, Lucas C. Townsend, Lochlan F. Shelfer, Jeremy M.\\nChristiansen, and Gibson, Dunn & Crutcher LLP were on brief, for\\nappellants Aurelius Investment, LLC and Assured Guaranty\\nCorporation.\\n Rolando Emmanuelli-Jiménez, with whom Jessica E. Méndez-\\nColberg, Yasmín Colón-Colón, and Bufete Emmanuelli, C.S.P. were on\\nbrief, for appellant UTIER.\\n Donald B. Verrilli, Jr., with whom Ginger D. Anders, Chad I.\\nGolder, Sarah G. Boyce, Rachel G. Miller-Ziegler, Munger, Tolles\\n& Olson LLP, Martin J. Bienenstock, Stephen L. Ratner, Timothy W.\\nMungovan, Mark D. Harris, Chantel L. Febus, Proskauer Rose LLP,\\nHermann D. Bauer, Ubaldo M. Fernández, and O'Neill & Borges LLC\\nwere on brief, for appellee The Financial Oversight and Management\\nBoard for Puerto Rico.\\nWalter Dellinger, Peter Friedman, John J. Rapisardi, William J.\\nSushon, and O'Melveny & Myers LLP on brief, for The Puerto Rico\\nFiscal Agency and Financial Advisory Authority.\\n Jeffrey B. Wall, with whom Laura E. Myron, Attorney, Appellate\\nStaff, Civil Division, U.S. Department of Justice, Joseph H. Hunt,\\nAssistant Attorney General, Thomas G. Ward, Deputy Assistant\\nAttorney General, Mark R. Freeman, Michael S. Raab, and Michael\\nShih, Attorneys, Appellate Staff, Civil Division, were on brief,\\nfor appellee the United States.\\n José A. Hernández-Mayoral, with whom Rafael Hernández-Colón,\\nand Héctor Ferrer-Ríos, were on brief, as amicus curiae, for the\\nPopular Democratic Party of Puerto Rico and its President.\\n Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero,\\nM.L. & R.E. Law Firm, Aníbal Acevedo-Vilá and Law Office Aníbal\\nAcevedo-Vilá were on brief, as amici curiae.\\n Luc A. Despins and Paul Hastings LLP on brief, for The\\nOfficial Committee of Unsecured Creditors of All Puerto Rico Title\\nIII Debtors.\\n Ian Heath Gershengorn, Lindsay C. Harrison, William K.\\nDreher, Catherine Steege, Melissa Root, Robert Gordon, Richard\\nLevin, A.J. Bennazar-Zequeira, and Bennazar, García, & Milián,\\nC.S.P. on brief, for The Official Committee of Retired Employees\\nof the Commonwealth of Puerto Rico.\\n\\n\\n -2-\\t\\n\\f Charles J. Cooper, Michael W. Kirk, Howard C. Nielson, Jr.,\\nJohn D. Ohlendorf, Haley N. Proctor, Cooper & Kirk, PLLC, Rafael\\nEscalera, Carlos R. Rivera-Ortiz, Sylvia M. Arizmendi-López de\\nVictoria, and Reichard & Escalera on brief, for Creditors-\\nAppellees the Cofina Senior Bondholders' Coalition.\\n Manuel A. Rodríguez-Banchs, and Matthew S. Blumin, on brief,\\nfor appellee American Federal of State, County & Municipal\\nEmployees.\\n\\n\\n\\n\\n February 15, 2019\\n\\n\\n\\n\\n -3-\\n\\f TORRUELLA, Circuit Judge. The matter before us arises\\n\\nfrom the restructuring of Puerto Rico's public debt under the 2016\\n\\nPuerto Rico Oversight, Management, and Economic Stability Act\\n\\n(\\\"PROMESA\\\"). This time, however, we are not tasked with delving\\n\\ninto the intricacies of bankruptcy proceedings. Instead, we are\\n\\nrequired to square off with a single question of constitutional\\n\\nmagnitude: whether members of the Financial Oversight and\\n\\nManagement Board created by PROMESA (\\\"Board Members\\\") are\\n\\n\\\"Officers of the United States\\\" subject to the U.S. Constitution's\\n\\nAppointments Clause. Title III of PROMESA authorizes the Board\\n\\nto initiate debt adjustment proceedings on behalf of the Puerto\\n\\nRico government, and the Board exercised this authority in May\\n\\n2017. Appellants seek to dismiss the Title III proceedings,\\n\\nclaiming the Board lacked authority to initiate them given that\\n\\nthe Board Members were allegedly appointed in contravention of the\\n\\nAppointments Clause.\\n\\n Before we can determine whether the Board Members are\\n\\nsubject to the Appointments Clause, we must first consider two\\n\\nantecedent questions that need be answered in sequence, with the\\n\\nanswer to each deciding whether we proceed to the next item of\\n\\ninquiry. The first question is whether, as decided by the district\\n\\ncourt and claimed by appellees, the Territorial Clause displaces\\n\\nthe Appointments Clause in an unincorporated territory such as\\n\\n\\n -4-\\n\\fPuerto Rico. If the answer to this first question is \\\"no,\\\" our\\n\\nsecond area of discussion turns to determining whether the Board\\n\\nMembers are \\\"Officers of the United States,\\\" as only officers of\\n\\nthe federal government fall under the purview of the Appointments\\n\\nClause. If the answer to this second question is \\\"yes,\\\" we must\\n\\nthen determine whether the Board Members are \\\"principal\\\" or\\n\\n\\\"inferior\\\" United States officers, as that classification will\\n\\ndictate how they must be appointed pursuant to the Appointments\\n\\nClause. But before we enter fully into these matters, it is\\n\\nappropriate that we take notice of the developments that led to\\n\\nthe present appeal.\\n\\n BACKGROUND\\n\\n The centerpieces of the present appeals are two\\n\\nprovisions of the Constitution of the United States. The first\\n\\nis Article II, Section 2, Clause 2, commonly referred to as the\\n\\n\\\"Appointments Clause,\\\" which establishes that:\\n\\n [The President] . . . shall nominate, and by and with\\n the Advice and Consent of the Senate, shall appoint\\n . . . all other Officers of the United States, whose\\n Appointments are not herein otherwise provided for,\\n and which shall be established by Law: but the\\n Congress may by Law vest the Appointment of such\\n inferior Officers, as they think proper, in the\\n President alone, in the Courts of Law, or in the Heads\\n of Departments.\\n\\nU.S. Const. art. II, § 2, cl. 2.\\n\\t\\n\\n\\n\\n -5-\\n\\f The second is Article IV, Section 3, Clause 2, or the\\n\\n\\\"Territorial Clause,\\\" providing Congress with the \\\"power to\\n\\ndispose of and make all needful Rules and Regulations respecting\\n\\nthe Territory . . . belonging to the United States.\\\" U.S. Const.\\n\\nart. IV, § 3, cl. 2.\\n\\n A. Puerto Rico's Financial Crisis\\n\\n The interaction between these two clauses comes into\\n\\nfocus because of events resulting from the serious economic\\n\\ndownfall that has ailed the Commonwealth of Puerto Rico since the\\n\\nturn of the 21st Century, see Center for Puerto Rican Studies,\\n\\nPuerto Rico in Crisis Timeline, Hunter College (2017),\\n\\nhttps://centropr.hunter.cuny.edu/sites/default/files/PDF_Publica\\n\\ntions/Puerto-Rico-Crisis-Timeline-2017.pdf; see generally Juan R.\\n\\nTorruella, Why Puerto Rico Does Not Need Further Experimentation\\n\\nwith Its Future: A Reply to the Notion of \\\"Territorial Federalism\\\",\\n\\n131 Harv. L. Rev. F. 65 (2018), and its Governor's declaration in\\n\\nthe summer of 2015 that the Commonwealth was unable to meet its\\n\\nestimated $72 billion public debt obligation, see Michael Corkery\\n\\n& Mary Williams Walsh, Puerto Rico's Governor Says Island's Debts\\n\\nAre \\\"Not Payable\\\", N.Y. Times (June 28, 2015), https://www.nytimes\\n\\n.com/2015/06/29/business/dealbook/puerto-ricos-governor-says-\\n\\nislands-debts-are-not-payable.html. This obligation developed,\\n\\nin substantial part, from the triple tax-exempt bonds issued and\\n\\n\\n -6-\\n\\fsold to a large variety of individual and institutional investors,\\n\\nnot only in Puerto Rico but also throughout the United States.1\\n\\nGiven the unprecedented expansiveness of the default in terms of\\n\\ntotal debt, the number of creditors affected, and the creditors'\\n\\ngeographic diversity, it became self-evident that the\\n\\nCommonwealth's insolvency necessitated a national response from\\n\\nCongress. Puerto Rico's default was of particular detriment to\\n\\nthe municipal bond market where Commonwealth bonds are traded and\\n\\nupon which state and local governments across the United States\\n\\nrely to finance many of their capital projects. See Nat'l Assoc.\\n\\nof Bond Lawyers, Tax-Exempt Bonds: Their Importance to the National\\n\\nEconomy and to State and Local Governments 5 (Sept. 2012),\\n\\nhttps://www.nabl.org/portals/0/documents/NABL_White_Paper.pdf.\\n\\n From 1938 until 1984, Puerto Rico was able, like all\\n\\nother U.S. jurisdictions, to seek the protection of Chapter 9 of\\n\\nthe U.S. Bankruptcy Code when its municipal instrumentalities ran\\n\\ninto financial difficulties. See Franklin Cal. Tax-Free Trust v.\\n\\nPuerto Rico, 805 F.3d 322, 345-50 (1st Cir. 2015) (Torruella, J.,\\n\\nconcurring). But without any known or documented explanation, in\\n\\n1984, Congress extirpated from the Bankruptcy Code the\\n\\n\\n1 Since 1917 Congress has authorized exemption of Puerto Rico\\nbonds from taxation by the federal, state, and municipal\\ngovernments. See An Act to provide a civil government for Porto\\nRico, and for other purposes, ch. 145, § 3, 39 Stat. 953 (1917).\\n\\n\\n -7-\\n\\favailability of this relief for the Island. Id. at 350. In an\\n\\nattempt to seek self-help, and amidst the Commonwealth's deepening\\n\\nfinancial crisis, the Puerto Rico Legislature passed its own\\n\\nmunicipal bankruptcy legislation in 2014. See Puerto Rico Public\\n\\nCorporation Debt Enforcement and Recovery Act of 2014, 2014 P.R.\\n\\nLaws Act No. 71; see generally Lorraine S. McGowen, Puerto Rico\\n\\nAdopts a Debt Recovery Act for Its Public Corporations, 10 Pratt's\\n\\nJ. Bankr. L. 453 (2014). The Commonwealth's self-help journey,\\n\\nhowever, was cut short by the Supreme Court in Puerto Rico v.\\n\\nFranklin Cal. Tax-Free Tr., 136 S. Ct. 1938 (2016), which\\n\\ninvalidated the Puerto Rico bankruptcy statute. Coincidentally,\\n\\nthe Supreme Court decided Franklin Cal. on June 13, 2016 -- seven\\n\\ndays before the following congressional intervention into this\\n\\nsequence of luckless events.\\n\\n B. Congress Enacts PROMESA\\n\\n On June 30, 2016, Congress's next incursion into Puerto\\n\\nRico's economic fortunes took place in the form of Public Law 114-\\n\\n187, the Puerto Rico Oversight, Management, and Economic Stability\\n\\nAct (PROMESA),2 48 U.S.C. § 2101 et seq., which Congress found\\n\\nnecessary to deal with Puerto Rico's \\\"fiscal emergency\\\" and to\\n\\n\\n\\n2 Since its proposed enactment this legislation has been labeled\\nby the acronym \\\"PROMESA,\\\" which in the Spanish language stands for\\n\\\"promise.\\\"\\n\\n\\n -8-\\n\\fhelp mitigate the Island's \\\"severe economic decline.\\\" See id.\\n\\n§ 2194(m)(1). Congress identified the Territorial Clause as the\\n\\nsource of its authority to enact this law. See id. § 2121(b)(2).\\n\\n To implement PROMESA, Congress created the Financial\\n\\nOversight and Management Board of Puerto Rico (the \\\"Board\\\").\\n\\nCongress charged the Board with providing independent supervision\\n\\nand control over Puerto Rico's financial affairs and helping the\\n\\nIsland \\\"achieve fiscal responsibility and access to the capital\\n\\nmarkets.\\\" Id. § 2121(a). In so proceeding, Congress stipulated\\n\\nthat the Board was \\\"an entity [created] within the territorial\\n\\ngovernment\\\" of Puerto Rico, id. § 2121(c)(1), which \\\"shall not be\\n\\nconsidered to be a department, agency, establishment, or\\n\\ninstrumentality of the Federal Government,\\\" id. § 2121(c)(2), and\\n\\nthat it was to be funded entirely from Commonwealth resources, id.\\n\\n§ 2127.3\\n\\n Although PROMESA places the Board \\\"within\\\" the Puerto\\n\\nRico territorial government, Section 108 of PROMESA, which is\\n\\nlabeled \\\"Autonomy of Oversight Board,\\\" id. § 2128, precludes the\\n\\nPuerto Rico Governor and Legislature from exercising any power or\\n\\nauthority over the so-called \\\"territorial entity\\\" that PROMESA\\n\\n\\n\\n3 A new account -- under the Board's exclusive control -- was\\nrequired to be established by the Puerto Rico government within\\nits Treasury Department to fund Board operations.\\n\\n\\n -9-\\n\\fcreates. Instead, it subordinates the Puerto Rico territorial\\n\\ngovernment to the Board, as it unambiguously pronounces that:\\n\\n (a) . . . Neither the Governor nor the\\n Legislature may --\\n\\n (1) exercise any control, supervision,\\n oversight, or review over the . . . Board or\\n its activities; or\\n\\n (2) enact, implement, or enforce any statute,\\n resolution, policy, or rule that would impair\\n or defeat the purposes of this chapter, as\\n determined by the . . . Board.\\n\\nId. § 2128(a).\\n\\n PROMESA also provides additional authority and powers to\\n\\nthe Board with similarly unfettered discretion. For example,\\n\\nSection 101(d)(1)(A) grants the Board, \\\"in its sole discretion at\\n\\nsuch time as the . . . Board determines to be appropriate,\\\" the\\n\\ndesignation of \\\"any territorial instrumentality as a covered\\n\\nterritorial instrumentality that is subject to the requirements of\\n\\n[PROMESA].\\\" Id. § 2121(d)(1)(A). Under Section 101(d)(1)(B),\\n\\nthe Board, \\\"in its sole discretion,\\\" may require the Governor of\\n\\nPuerto Rico to submit \\\"such budgets and monthly or quarterly\\n\\nreports regarding a covered territorial instrumentality as the\\n\\n. . . Board determines to be necessary . . .\\\" Id. § 2121(d)(1)(B).\\n\\nPursuant to Section 101(d)(1)(C), the Board is allowed, \\\"in its\\n\\nsole discretion,\\\" to require separate budgets and reports for\\n\\ncovered territorial instrumentalities apart from the\\n\\n\\n -10-\\n\\fCommonwealth's budget, and to require the Governor to develop said\\n\\nseparate documents. Id. § 2121(d)(1)(C). Per Section 101(d)(1)(D),\\n\\nthe \\\"Board may require, in its sole discretion,\\\" that the Governor\\n\\n\\\"include a covered territorial instrumentality in the applicable\\n\\nTerritory Fiscal Plan.\\\" Id. § 2121(d)(1)(D). Further, as\\n\\nprovided in Section 101(d)(1)(E), the Board may, \\\"in its sole\\n\\ndiscretion,\\\" designate \\\"a covered territorial instrumentality to\\n\\nbe the subject of [a separate] Instrumentality Fiscal Plan.\\\" Id.\\n\\n§ 2121(d)(1)(E). Finally, Section 101(d)(2)(A) bestows upon the\\n\\nBoard, again \\\"in its sole discretion, at such time as the . . .\\n\\nBoard determines to be appropriate,\\\" the authority to \\\"exclude any\\n\\nterritorial instrumentality from the requirements of [PROMESA].\\\"\\n\\nId. § 2121(d)(2)(A).\\n\\n PROMESA also requires the Board to have an office in\\n\\nPuerto Rico and elsewhere as it deems necessary, and that at any\\n\\ntime the United States may provide the Board with use of federal\\n\\nfacilities and equipment on a reimbursable or non-reimbursable\\n\\nbasis. Id. § 2122. Additionally, Section 103(c) waives the\\n\\napplication of Puerto Rico procurement laws to the Board, id.\\n\\n§ 2123(c), while Section 104(c) authorizes the Board to acquire\\n\\ninformation directly from both the federal and Puerto Rico\\n\\ngovernments without the usual bureaucratic hurdles, id. § 2124(c).\\n\\nMoreover, the Board's power to issue and enforce compliance with\\n\\n\\n -11-\\n\\fsubpoenas is to be carried out in accordance with Puerto Rico law.\\n\\nId. § 2124(f).4 Finally, PROMESA directs the Board to ensure that\\n\\nany laws prohibiting public employees from striking or engaging in\\n\\nlockouts be strictly enforced. Id. § 2124(h).\\n\\n We thus come to PROMESA's Title III, the central\\n\\nprovision of this statute, which creates a special bankruptcy\\n\\nregime allowing the territories and their instrumentalities to\\n\\nadjust their debt. Id. §§ 2161-77. This new bankruptcy safe\\n\\nhaven applies to territories more broadly than Chapter 9 applies\\n\\nto states because it covers not just the subordinate\\n\\ninstrumentalities of the territory, but also the territory itself.\\n\\nId. § 2162.\\n\\n An important provision of PROMESA's bankruptcy regime is\\n\\nthat the Board serves as the sole representative of Puerto Rico's\\n\\ngovernment in Title III debtor-related proceedings, id. § 2175(b),\\n\\nand that the Board is empowered to \\\"take any action necessary on\\n\\nbehalf of the debtor\\\" -- whether the Commonwealth government or\\n\\nany of its instrumentalities -- \\\"to prosecute the case of the\\n\\ndebtor,\\\" id. § 2175(a).\\n\\n\\t\\n\\n\\n4 We note that 48 U.S.C. § 2124(f)(1) makes reference to the\\nPuerto Rico Rules of Civil Procedure of 1979, 32 L.P.R.A. App. III,\\neven though those rules were repealed and replaced by the Puerto\\nRico Rules of Civil Procedure of 2009, 32 L.P.R.A. App. V.\\n\\n\\n -12-\\n\\f C. Appointment of Members to PROMESA's Board\\n\\n PROMESA establishes that the \\\"Board shall consist of\\n\\nseven members appointed by the President,\\\" who must comply with\\n\\nfederal conflict of interest statutes. Id. § 2121(e)(1)(A).5 The\\n\\nBoard's membership is divided into six categories, labelled A\\n\\nthrough F, with one member for Categories A, B, D, E, and F, and\\n\\ntwo members for Category C. Id. § 2121(e)(1)(B).6 The Governor\\n\\nof Puerto Rico, or his designee, also serves on the Board, but in\\n\\nan ex officio, non-voting capacity. Id. § 2121(e)(3). The\\n\\nBoard's duration is for an indefinite period, at a minimum four\\n\\nyears and likely more, given the certifications that Section 209\\n\\nof PROMESA requires.7\\n\\n\\n5 Section 2121(e)(1)(A) of PROMESA cross-references section\\n2129(a), which, for its part, incorporates 18 U.S.C. § 208's\\ndispositions governing conflicts of interest.\\n6 As will be discussed in detail below, the assigned category\\naffects a prospective Board member's eligibility requirements and\\nappointment procedure.\\n7 Section 209 of PROMESA states that the Board shall terminate\\nwhen it certifies that:\\n\\n (1) the applicable territorial government has adequate\\n access to short-term and long-term credit markets at\\n reasonable interest rates to meet the borrowing needs of\\n the territorial government; and\\n\\n (2) for at least 4 consecutive fiscal years --\\n\\n (A) the territorial government has developed its\\n Budgets in accordance with modified accrual\\n accounting standards; and\\n\\n\\n -13-\\n\\f Pursuant to Section 101(f) of PROMESA, individuals are\\n\\neligible for appointment to the Board only if they:\\n\\n (1) ha[ve] knowledge and expertise in finance,\\n municipal bond markets, management, law, or the\\n organization or operation of business or government;\\n and\\n\\n (2) prior to appointment, [they are] not an officer,\\n elected official, or employee of the territorial\\n government, a candidate for elected office of the\\n territorial government, or a former elected official\\n of the territorial government.\\n\\nId. § 2121(f). In addition, there are certain primary residency\\n\\nor primary business place requirements that must be met by some of\\n\\nthe Board Members. Id. § 2121(e)(2)(B)(i), (D) (requiring that\\n\\nthe Category A Board Member \\\"maintain a primary residence in the\\n\\nterritory or have a primary place of business in the territory\\\").\\n\\n Of particular importance to our task at hand is\\n\\nSection 101(e)(2)(A), which outlines the procedure for the\\n\\nappointment of the Board Members:\\n\\n (A) The President shall appoint the individual members\\n of the . . . Board of which --\\n\\n (i) the Category A member should be selected from a\\n list of individuals submitted by the Speaker of the\\n House of Representatives;\\n\\n (B) the expenditures made by the territorial\\n government during each fiscal year did not exceed the\\n revenues of the territorial government during that\\n year, as determined in accordance with modified\\n accrual accounting standards.\\n\\n48 U.S.C. § 2149.\\n\\n\\n -14-\\n\\f (ii) the Category B member should be selected from a\\n separate, non-overlapping list of individuals\\n submitted by the Speaker of the House of\\n Representatives;\\n\\n (iii) the Category C member should be selected from a\\n list submitted by the Majority Leader of the Senate;\\n\\n (iv) the Category D member should be selected from a\\n list submitted by the Minority Leader of the House of\\n Representatives;\\n\\n (v) the Category E member should be selected from a\\n list submitted by the Minority leader of the Senate;\\n and\\n\\n (vi) the category F member may be selected in the\\n President's sole discretion.\\n\\nId. § 2121(e)(2)(A).\\n\\n In synthesis, pursuant to this scheme, six of the seven\\n\\nBoard Members shall be selected by the President from the lists\\n\\nprovided by House and Senate leadership, with PROMESA allowing the\\n\\nPresident to select the seventh member at his or her sole\\n\\ndiscretion. Senatorial advice and consent is not required if the\\n\\nPresident makes the appointment from one of the aforementioned\\n\\nlists. Id. § 2121(e)(2)(E). In theory, the statute allows the\\n\\nPresident to appoint a member to the Board who is not on the lists,\\n\\nin which case, \\\"such an appointment shall be by and with the advice\\n\\nand consent of the Senate.\\\" Id. Consent by the Senate had to be\\n\\nobtained by September 1, 2016 so as to allow an off-list\\n\\nappointment, else the President was required to appoint directly\\n\\n\\n -15-\\n\\ffrom the lists. And because the Senate was in recess for all but\\n\\neight business days between enactment of the statute and\\n\\nSeptember 1, one might conclude that, in practical effect, the\\n\\nstatute forced the selection of persons on the list.\\n\\n As was arguably inevitable, on August 31, 2016, the\\n\\nPresident chose all Category A through E members from the lists\\n\\nsubmitted by congressional leadership and appointed the Category F\\n\\nmember at his sole discretion.8\\n\\n\\n8 President Obama Announces the Appointment of Seven Individuals\\nto the Financial Oversight and Management Board for Puerto Rico,\\nThe White House Off. of the Press Sec'y (Aug. 31, 2016),\\nhttps://obamawhitehouse.archives.gov/the-press-office/2016/08/\\n31/president-obama-announces-appointment-seven-individuals-\\nfinancial. The appointees included Andrew G. Biggs, a resident\\nscholar at the American Enterprise Institute, and former holder of\\nmultiple high ranking positions in the Social Security\\nAdministration; José B. Carrión III, an experienced insurance\\nindustry executive from Puerto Rico and the President and Principal\\nPartner of HUB International CLC, LLC, which operates therein;\\nCarlos M. García, a resident of Puerto Rico, the Chief Executive\\nOfficer of BayBoston Managers LLC, Managing Partner of BayBoston\\nCapital LP, who formerly served as Senior Executive Vice President\\nand board member at Santander Holdings USA, Inc. (2011-2013), among\\nother executive posts at Santander entities (1997-2008), and as\\nChairman of the Board, President, and CEO of the Government\\nDevelopment Bank for Puerto Rico (2009-2011); Arthur J. González,\\na Senior Fellow at the New York University School of Law and former\\nU.S. Bankruptcy Judge in the Southern District of New York (1995-\\n2002); José R. González, CEO and President of the Federal Home\\nLoan Bank of New York, which he joined in 2013, former Chief\\nExecutive Officer and President of Santander Bancorp (2002-2008),\\nand President of Santander Securities Corporation (1996-2001) and\\nthe Government Development Bank of Puerto Rico (1986-1989); Ana J.\\nMatosantos, President of Matosantos Consulting, former Director of\\nthe State of California's Department of Finance (2009-2013) and\\nChief Deputy Director for Budgets (2008-2009); and, David A. Skeel\\nJr., professor of Corporate Law at the University of Pennsylvania\\n\\n -16-\\n\\f It is undisputed that the President did not submit any\\n\\nof the Board member appointments to the Senate for its advice and\\n\\nconsent prior to the Board Members assuming the duties of their\\n\\noffice, or, for that matter, at any other time.\\n\\n D. Litigation Before the District Court\\n\\n In May 2017, the Board initiated Title III debt\\n\\nadjustment proceedings on behalf of the Commonwealth in the U.S.\\n\\nDistrict Court for the District of Puerto Rico. See Title III\\n\\nPetition, In re Commonwealth of P.R., Bankruptcy Case No. 17-BK-\\n\\n3283 (LTS) (D.P.R. May 3, 2017). This was followed by the filing\\n\\nof several other Title III proceedings on behalf of various\\n\\nCommonwealth government instrumentalities. See Title III\\n\\nPetitions in: In re P.R. Sales Tax Fin. Corp. (COFINA), Bankruptcy\\n\\nCase No. 17-BK-3284 (LTS) (D.P.R. May 5, 2017); In re Emps. Ret.\\n\\nSys. of the Gov't of the Commonwealth of P.R. (ERS), 17-BK-3566\\n\\n(LTS) (D.P.R. May 21, 2017); In re P.R. Highways and Transp. Aut.\\n\\n(HTA); Bankruptcy Case No. 17-BK-3567 (LTS) (D.P.R. May 21, 2017);\\n\\nIn re P.R. Elec. Power Auth. (PREPA) [hereinafter In re PREPA],\\n\\nBankruptcy Case No. 17-BK-4780 (LTS) (D.P.R. Jul. 7, 2017).\\n\\nThereafter, some entities -- now the appellants before us -- arose\\n\\n\\n\\n\\nLaw School, which he joined in 1999.\\n\\n\\n -17-\\n\\fin opposition to the Board's initiation of debt adjustment\\n\\nproceedings on behalf of the Commonwealth.\\n\\n Among the challengers are Aurelius Investment, LLC, et\\n\\nal. and Assured Guaranty Corporation, et al. (\\\"Aurelius\\\"). Before\\n\\nthe district court, Aurelius argued that the Board lacked authority\\n\\nto initiate the Title III proceeding because its members were\\n\\nappointed in violation of the Appointments Clause and the principle\\n\\nof separation of powers. The Board rejected this argument,\\n\\npositing that its members were not \\\"Officers of the United States\\\"\\n\\nwithin the meaning of the Appointments Clause, and that the Board's\\n\\npowers were purely local in nature, not federal as would be needed\\n\\nto qualify for Appointments Clause coverage. The Board further\\n\\nargued that, in any event, the Appointments Clause did not apply\\n\\neven if the individual members were federal officers, because they\\n\\nexercised authority in Puerto Rico, an unincorporated territory\\n\\nwhere the Territorial Clause endows Congress with plenary powers.\\n\\nThis, according to the Board, exempted Congress from complying\\n\\nwith the Appointments Clause when legislating in relation to Puerto\\n\\nRico. In the alternative, the Board argued that the Board Members'\\n\\nappointment did not require Senate advice and consent because they\\n\\nwere \\\"inferior officers.\\\" The United States intervened on behalf\\n\\nof the Board, pursuant to 28 U.S.C. § 2403(a), to defend the\\n\\n\\n\\n\\n -18-\\n\\fconstitutionality of PROMESA and the validity of the appointments\\n\\nand was generally in agreement with the Board's contentions.\\n\\n The other challenger to the Board's appointments\\n\\nprocess, and an appellant here, is the Unión de Trabajadores de la\\n\\nIndustria Eléctrica y Riego (\\\"UTIER\\\"), a Puerto Rican labor\\n\\norganization that represents employees of the government-owned\\n\\nelectric power company, the Puerto Rico Electric Power Authority\\n\\n(\\\"PREPA\\\"). The Board had also filed a Title III petition on behalf\\n\\nof PREPA, see In re PREPA, supra, which led the UTIER to file an\\n\\nadversary proceeding as a party of interest before the District\\n\\nCourt in which it raised substantially the same arguments as\\n\\nAurelius regarding the Board Members' defective appointment, see\\n\\nUnión de Trabajadores de la Industria Eléctrica y Riego v. P.R.\\n\\nElec. Power Auth., No. 17-228 (LTS) (D.P.R. Aug. 15, 2018); see\\n\\nalso Adversary Complaint, Unión de Trabajadores de la Industria\\n\\nEléctrica y Riego v. P.R. Elec. Power Auth., No. 17-229 (LTS)\\n\\n(D.P.R. Aug. 7, 2017) (describing the terms of the UTIER-PREPA\\n\\ncollective bargaining agreement).\\n\\n E. The District Court's Opinion\\n\\n The district court, in separate decisions, ruled against\\n\\nAurelius and UTIER and rejected their motions to dismiss the\\n\\nBoard's Title III petitions. In re Commonwealth of P.R.,\\n\\nBankruptcy Case No. 17-BK-3283 (LTS) (D.P.R. July 3, 2018);\\n\\n\\n -19-\\n\\fAssured Guar. Mun. Corp. v. Fin. Oversight and Mgmt. Bd. for P.R.,\\n\\nNo. 18-87 (LTS) (D.P.R. Aug. 3, 2018); UTIER v. PREPA, No. 17-228\\n\\n(LTS). In brief, the district court determined that the Board is\\n\\nan instrumentality of the Commonwealth government established\\n\\npursuant to Congress's plenary powers under the Territorial\\n\\nClause, that Board Members are not \\\"Officers of the United States,\\\"\\n\\nand that therefore there was no constitutional defect in the method\\n\\nof their appointment. The court arrived at this conclusion after\\n\\nconsidering the jurisprudence and practice surrounding the\\n\\nrelationship between Congress and the territories, including\\n\\nPuerto Rico, along with Congress's intent with regards to PROMESA.\\n\\n The district court based its ruling on the premise that\\n\\n\\\"the Supreme Court has long held that Congress's power under [the\\n\\nTerritorial Clause] is both 'general and plenary.'\\\" Such a\\n\\nplenary authority is what, according to the district court, allows\\n\\nCongress to \\\"establish governmental institutions for territories\\n\\nthat are not only distinct from federal government entities but\\n\\ninclude features that would not comport with the requirements of\\n\\nthe Constitution if they pertained to the governance of the United\\n\\nStates.\\\" The district court further pronounced that Congress \\\"has\\n\\nexercised [its plenary] power with respect to Puerto Rico over the\\n\\ncourse of nearly 120 years, including the delegation to the people\\n\\n\\n\\n\\n -20-\\n\\fof Puerto Rico elements of its . . . Article IV authority by\\n\\nauthorizing a significant degree of local self-governance.\\\"\\n\\n The district court also relied on judicial precedents\\n\\nholding that Congress may create territorial courts that do not\\n\\n\\\"incorporate the structural assurances of judicial independence\\\"\\n\\nprovided for in Article III of the Constitution -- namely, life\\n\\ntenure and protection against reduction in pay -- as decisive\\n\\nauthority. From the perdurance of these non-Article III courts\\n\\nacross the territories (excepting, of course, Puerto Rico which\\n\\nalthough still an unincorporated territory has had, since 1966, an\\n\\nArticle III court),9 the district court reasoned that \\\"Congress\\n\\ncan thus create territorial entities that are distinct in\\n\\nstructure, jurisdiction, and powers from the federal government.\\\"\\n\\n\\n\\n9 Act of Sept. 12, 1966, Public Law 89-571, 80 Stat. 764 (granting\\njudges appointed to the District of Puerto Rico the same life\\ntenure and retirement rights granted to judges of all other United\\nStates district courts); see also Examining Bd. of Engineers,\\nArchitects & Surveyors v. Flores de Otero, 426 U.S. 572, 594 n.26\\n(1976) (\\\"The reason given [by Congress] for [Public Law 89-571]\\nwas that the Federal District Court in Puerto Rico 'is in its\\njurisdiction, powers, and responsibilities the same as the U. S.\\ndistrict courts in the (several) States.'\\\" (quoting S. Rep. No.\\n89-1504 at 2 (1966))); Igartúa-De La Rosa v. United States, 417\\nF.3d 145, 169 (1st Cir. 2005) (en banc) (Torruella, J., dissenting)\\n(\\\"An Article III District Court sits [in Puerto Rico], providing\\nnearly one-third of the appeals filed before [the Court of Appeals\\nfor the First Circuit], which sits in Puerto Rico at least twice\\na year, also in the exercise of Article III power.\\\"); United States\\nv. Santiago, 23 F. Supp. 3d 68, 69 (D.P.R. Feb. 12, 2014)\\n(collecting cases and scholarly articles).\\n\\n\\n -21-\\n\\f Turning to the relationship between Congress and Puerto\\n\\nRico, the district court noted that \\\"Congress has long exercised\\n\\nits Article IV plenary power to structure and define governmental\\n\\nentities for the island,\\\" in reference to the litany of\\n\\ncongressional acts that have shaped Puerto Rico's local government\\n\\nsince 1898, including the Treaty of Paris of 1898, the Foraker Act\\n\\nof 1900, the Jones-Shafroth Act of 1917, and Public Law 600 of\\n\\n1950.\\n\\n Furthermore, with regards to PROMESA and its Board, the\\n\\ndistrict court afforded \\\"substantial deference\\\" to \\\"Congress's\\n\\ndetermination that it was acting pursuant to its Article IV\\n\\nterritorial powers in creating the . . . Board as an entity of the\\n\\ngovernment of Puerto Rico.\\\" The district court then proceeded to\\n\\nconsider whether Congress can create an entity that is not\\n\\ninherently federal. It concluded in the affirmative, because\\n\\nfinding otherwise would \\\"ignore[] both the plenary nature of\\n\\ncongressional power under Article IV and the well-rooted\\n\\njurisprudence . . . establish[ing] that any powers of self-\\n\\ngovernance exercised by territorial governments are exercised by\\n\\nvirtue of congressional delegation rather than inherent local\\n\\nsovereignty.\\\" Accordingly, the district court found that the\\n\\n\\\"creation of an entity such as the . . . Board through popular\\n\\nelection would not change the . . . Board's ultimate source of\\n\\n\\n -22-\\n\\fauthority from a constitutional perspective.\\\" The court deemed\\n\\nthis so because \\\"neither the case law nor the historical practice\\n\\n. . . compels a finding that federal appointment necessarily\\n\\nrenders an appointee a federal officer.\\\" The district court\\n\\ntherefore concluded that the Board is a territorial entity\\n\\nnotwithstanding\\n\\n [t]he fact that the . . . Board's members hold office\\n by virtue of a federally enacted statutory regime and\\n are appointed by the President[,] [because this] does\\n not vitiate Congress's express provisions for\\n creation of the . . . Board as a territorial\\n government entity that \\\"shall not be considered to be\\n a department, agency, establishment, or\\n instrumentality of the Federal Government.\\\"\\n\\n After ruling that the Board is a \\\"territorial entity and\\n\\nits members are territorial officers,\\\" the district court finally\\n\\ndetermined that \\\"Congress had broad discretion to determine the\\n\\nmanner of selection for members of the . . . Board,\\\" which Congress\\n\\n\\\"exercised . . . in empowering the President with the ability to\\n\\nboth appoint and remove members from the . . . Board.\\\" On this\\n\\nfinal point, the district court observed that \\\"[a]lthough\\n\\nhistorical practice . . . indicates that Congress has required\\n\\nSenate confirmation for certain territorial offices, nothing in\\n\\nthe Constitution precludes the use of that mechanism for positions\\n\\ncreated under Article IV, and its use does not establish that\\n\\nCongress was obligated to invoke it.\\\"\\n\\n\\n\\n -23-\\n\\f The district court was certainly correct that Article IV\\n\\nconveys to Congress greater power to rule and regulate within a\\n\\nterritory than it can bring to bear within the fifty states. In\\n\\nbrief, within a territory, Congress has not only its customary\\n\\npower, but also the power to make rules and regulations such as a\\n\\nstate government may make within its state. See U.S. Const.\\n\\nart. IV, § 3, cl. 2; D.C. v. John R. Thompson Co., 346 U.S. 100,\\n\\n106 (1953); Simms v. Simms, 175 U.S. 162, 168 (1899). As we will\\n\\nexplain, however, we do not view these expanded Article IV powers\\n\\nas enabling Congress to ignore the structural limitations on the\\n\\nmanner in which the federal government chooses federal officers,\\n\\nand we deem the Board Members -- save its ex officio member10 --\\n\\nto be federal officers.\\n\\n DISCUSSION\\n\\n A. The Territorial Clause Does Not Trump the Appointments\\n Clause\\n\\n However much Article IV may broaden the reach of\\n\\nCongress's powers over a territory as compared to its power within\\n\\na state, this case presents no claim that the substance of\\n\\nPROMESA's numerous rules and regulations exceed that reach.\\n\\n\\n10 No Appointments Clause challenge has been brought concerning\\nthe Governor of Puerto Rico, or the Governor's designee, who serves\\nas an ex officio Board member without voting rights. See 48 U.S.C.\\n§ 2121(e)(3). Our holding is therefore limited to the seven Board\\nMembers appointed pursuant to 48 U.S.C. § 2121(e)(1)-(2).\\n\\n\\n -24-\\n\\fInstead, appellants challenge the way the federal government has\\n\\nchosen the individuals who will implement those rules and\\n\\nregulations. This challenge trains our focus on the power of\\n\\nCongress vis-à-vis the other branches of the federal government.\\n\\nSpecifically, the Board claims that Article IV effectively allows\\n\\nCongress to assume what is otherwise a power of the President, and\\n\\nto share within the two bodies of Congress a power only assigned\\n\\nto the Senate.\\n\\n We reject this notion that Article IV enhances\\n\\nCongress's capabilities in the intramural competitions established\\n\\nby our divided system of government. First, the Board seems to\\n\\nforget -- and the district court failed to recognize and honor --\\n\\nthe ancient canon of interpretation that we believe is a helpful\\n\\nguide to disentangle the interface between the Appointments Clause\\n\\nand the Territorial Clause: generalia specialibus non derogant\\n\\n(the \\\"specific governs the general\\\"). See, e.g., Turner v.\\n\\nRogers, 564 U.S. 431, 452-53 (2011) (Thomas, J., dissenting)\\n\\n(applying this canon in the context of constitutional\\n\\ninterpretation in a conflict between the Due Process Clause and\\n\\nthe Sixth Amendment); Albright v. Oliver, 510 U.S. 266, 273-74\\n\\n(1994) (plurality opinion).\\n\\n The Territorial Clause is one of general application\\n\\nauthorizing Congress to engage in rulemaking for the temporary\\n\\n\\n -25-\\n\\fgovernance of territories. See Reid v. Covert, 354 U.S. 1, 14\\n\\n(1957) (plurality opinion). But such a general empowerment does\\n\\nnot extend to areas where the Constitution explicitly contemplates\\n\\na particular subject, such as the appointment of federal officers.\\n\\nNowhere does the Territorial Clause reference the subject matter\\n\\nof federal appointments or the process to effectuate them. On the\\n\\nother hand, federal officer appointment is, of course, the raison\\n\\nd'etre of the Appointments Clause. It cannot be clearer or more\\n\\nunequivocal that the Appointments Clause mandates that it be\\n\\napplied to \\\"all . . . Officers of the United States.\\\" U.S. Const.\\n\\nart II, § 2, cl. 2 (emphasis added). Thus, we find in answering\\n\\nthe first question before us a prime candidate for application of\\n\\nthe specialibus canon and for the strict enforcement of the\\n\\nconstitutional mandate contained in the Appointments Clause.\\n\\n Consider next the Presentment Clause of Article I,\\n\\nSection 7. Under that clause, a bill passed by both chambers of\\n\\nCongress cannot become law until it is presented to, and signed\\n\\nby, the President (or the President's veto is overridden). U.S.\\n\\nConst. art. I, § 7, cl. 2. Surely no one argues that Article IV\\n\\nshould be construed so as to have allowed Congress to enact PROMESA\\n\\nwithout presentment, or to have overridden a veto without the\\n\\nrequisite super-majority vote in both houses. Nor does anyone\\n\\nseriously argue that Congress could have relied on its plenary\\n\\n\\n -26-\\n\\fpowers under Article IV to alter the constitutional roles of its\\n\\ntwo respective houses in enacting PROMESA.\\n\\n Like the Presentment Clause, the Appointments Clause\\n\\nconstitutionally regulates how Congress brings its power to bear,\\n\\nwhatever the reach of that power might be. The Appointments Clause\\n\\nserves as one of the Constitution's important structural pillars,\\n\\none that was intended to prevent the \\\"manipulation of official\\n\\nappointments\\\" -- an \\\"insidious . . . weapon of eighteenth century\\n\\ndespotism.\\\" Freytag v. Comm'r, 501 U.S. 868, 883 (1991)\\n\\n(citations omitted); see also Edmond v. United States, 520 U.S.\\n\\n651, 659 (1997). The Appointments Clause was designed \\\"to\\n\\nprevent[] congressional encroachment\\\" on the President's\\n\\nappointment power, while \\\"curb[ing] Executive abuses\\\" by requiring\\n\\nSenate confirmation of all principal officers. Edmond, 520 U.S.\\n\\nat 659. It is thus universally considered \\\"among the significant\\n\\nstructural safeguards of the constitutional scheme.\\\" Id.\\n\\n It is true that another restriction that is arguably a\\n\\nstructural limitation on Congress's exercise of its powers -- the\\n\\nnondelegation doctrine -- does bend to the peculiar demands of\\n\\nproviding for governance within the territories. In normal\\n\\napplication, the doctrine requires that \\\"when Congress confers\\n\\ndecisionmaking authority upon agencies,\\\" it must \\\"lay down by\\n\\nlegislative act an intelligible principle to which the person or\\n\\n\\n -27-\\n\\fbody authorized to [act] is directed to conform.\\\" Whitman v. Am.\\n\\nTrucking Ass'ns, 531 U.S. 457, 472 (2001) (quoting J.W. Hampton,\\n\\nJr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Otherwise,\\n\\nCongress has violated Article I, Section 1 of the Constitution,\\n\\nwhich vests \\\"[a]ll legislative Powers herein granted . . . in a\\n\\nCongress of the United States.\\\" Id.; see also U.S. Const. art.\\n\\nI, § 1. In connection with the territories, though, Congress can\\n\\ndelegate to territorial governments the power to enact rules and\\n\\nregulations governing territorial affairs. See John R. Thompson\\n\\nCo., 346 U.S. at 106 (\\\"The power of Congress to delegate\\n\\nlegislative power to a territory is well settled.\\\"); Cincinnati\\n\\nSoap Co. v. United States, 301 U.S. 308, 321-23 (1937); see also\\n\\nSimms, 175 U.S. at 168 (\\\"In the territories of the United States,\\n\\nCongress has the entire dominion and sovereignty, national and\\n\\nlocal, Federal and state, and has full legislative power over all\\n\\nsubjects upon which the legislature of a state might legislate\\n\\nwithin the state; and may, at its discretion, intrust that power\\n\\nto the legislative assembly of a territory.\\\"). The Supreme Court\\n\\nhas analogized the powers of Congress over the District of Columbia\\n\\nand the territories to that of states over their municipalities.\\n\\nSee John R. Thompson Co., 346 U.S. at 109. In the state-\\n\\nmunicipality context, \\\"[a] municipal corporation . . . is but a\\n\\ndepartment of the State. The legislature may give it all the\\n\\n\\n -28-\\n\\fpowers such a being is capable of receiving, making it a miniature\\n\\nState within its locality.\\\" Barnes v. D.C., 91 U.S. 540, 544\\n\\n(1875); see also John R. Thompson Co., 346 U.S. at 109 (\\\"It would\\n\\nseem then that on the analogy of the delegation of powers of self-\\n\\ngovernment and home rule both to municipalities and to territories\\n\\nthere is no constitutional barrier to the delegation by Congress\\n\\nto the District of Columbia of full legislative power subject of\\n\\ncourse to constitutional limitations to which all lawmaking is\\n\\nsubservient and subject also to the power of Congress at any time\\n\\nto revise, alter, or revoke the authority granted.\\\"). The Supreme\\n\\nCourt has also made clear that, in delegating power to the\\n\\nterritories, Congress can only act insofar as \\\"other provisions of\\n\\nthe Constitution are not infringed.\\\" Atl. Cleaners & Dyers v.\\n\\nUnited States, 286 U.S. 427, 435 (1932).\\n\\n The territorial variations on the traditional\\n\\nrestrictions of the nondelegation doctrine pose no challenge by\\n\\nCongress to the power of the other branches. Any delegation must\\n\\ntake the form of a duly enacted statute subject to the President's\\n\\nveto. Furthermore, the territorial exception to the nondelegation\\n\\ndoctrine strikes us as strongly implicit in the notion of a\\n\\nterritory as envisioned by the drafters of the Constitution. The\\n\\nexpectation was that territories would become states. See Downes\\n\\nv. Bidwell, 182 U.S. 244, 380 (1901) (Harlan, J., dissenting).\\n\\n\\n -29-\\n\\fHence, Congress had a duty -- at least a moral duty -- to manage\\n\\na transition from federal to home rule. While the final delegation\\n\\ntakes place in the act of formally creating a state, it makes\\n\\nevident sense that partial delegations of home-rule powers would\\n\\nincrementally precede full statehood. Accordingly, from the very\\n\\nbeginning, Congress created territorial legislatures to which it\\n\\ndelegated rule-making authority. See, e.g., An Ordinance for the\\n\\nGovernment of the Territory of the United States north-west of the\\n\\nriver Ohio (1787), ch. 8, 1 Stat. 50, 51 n.(a) (1789).\\n\\n None of these justifications for limiting the\\n\\nnondelegation doctrine to accommodate one of Congress's most\\n\\nsalient purposes in exercising its powers under Article IV applies\\n\\nto the Appointments Clause. Nor does the teaching of founding era\\n\\nhistory. To the contrary, the evidence suggests strongly that\\n\\nCongress in 1789 viewed the process of presidential appointment\\n\\nand Senate confirmation as applicable to the appointment by the\\n\\nfederal government of federal officers within the territories.\\n\\nThat first Congress passed several amendments to the Northwest\\n\\nOrdinance of 1787 \\\"so as to adopt the same to the present\\n\\nConstitution of the United States.\\\" Id. at 51. One such\\n\\nconforming amendment eliminated the pre-constitutional procedure\\n\\nfor congressional appointment of officers within the territory and\\n\\n\\n\\n\\n -30-\\n\\freplaced it with presidential nomination and appointment \\\"by and\\n\\nwith the advice and consent of the Senate.\\\" Id. at 53.\\n\\n More difficult to explain is United States v. Heinszen,\\n\\n206 U.S. 370, 384-85 (1907). The actual holding in Heinszen\\n\\nsustained tariffs on goods to the Philippines where the tariffs\\n\\nwere imposed first by the President and then thereafter expressly\\n\\nratified by Congress. In sustaining those tariffs, the Court\\n\\nstated that Congress could have delegated the power to impose the\\n\\ntariffs to the President beforehand, citing United States v. Dorr,\\n\\n195 U.S. 138 (1904), a case that simply held that Congress could\\n\\nprovide for criminal tribunals in the territories without also\\n\\nproviding for trial by jury. Id. at 149. Heinszen cannot be\\n\\nexplained as an instance of Congress enabling home rule in a\\n\\nterritory. Rather, it seems to allow Congress to delegate\\n\\nlegislative power to the President, citing the territorial context\\n\\nas a justification. Heinszen, though, has no progeny that might\\n\\nshed light on how reliable it might serve as an apt analogy in the\\n\\ncase before us. Moreover, Heinszen concerned a grant of power by\\n\\nCongress, not a grab for power at the expense of the executive.\\n\\n For the foregoing reasons, we find in the nondelegation\\n\\ndoctrine no apt example to justify an exception to the application\\n\\nof the Appointments Clause within the territories. An exception\\n\\nfrom the Appointments Clause would alter the balance of power\\n\\n\\n -31-\\n\\fwithin the federal government itself and would serve no necessary\\n\\npurpose in the transitioning of territories to states.\\n\\n Further, the Board points us to Palmore v. United States,\\n\\n411 U.S. 389 (1973). That case arose out of Congress's exercise\\n\\nof its plenary powers over the District of Columbia under Article\\n\\nI, Section 8, Clause 17, powers which are fairly analogous to those\\n\\nunder Article IV. See John R. Thompson Co., 346 U.S. at 105-09.\\n\\nThe Court held that Congress could create local courts -- like\\n\\nstate courts -- that did not satisfy the requirements of\\n\\nArticle III. Palmore, 411 U.S. at 410. The Board would have us\\n\\nread Palmore as an instance of Congress's plenary powers over a\\n\\nterritory trumping the requirements of another structural pillar\\n\\nof the Constitution. We disagree. The Court explained at length\\n\\nhow Article III itself did not require that all courts created by\\n\\nCongress satisfy the selection and tenure requirements of\\n\\nArticle III. Id. at 407 (\\\"It is apparent that neither this Court\\n\\nnor Congress has read the Constitution as requiring every federal\\n\\nquestion arising under the federal law, or even every criminal\\n\\nprosecution for violating an Act of Congress, to be tried in an\\n\\nArt. III court before a judge enjoying lifetime tenure and\\n\\nprotection against salary reduction.\\\"). Rather, the requirements\\n\\nof Article III are applicable to courts \\\"devoted to matters of\\n\\nnational concern,\\\" id. at 408, and that local courts \\\"primarily\\n\\n\\n -32-\\n\\f. . . concern[ed] . . . with local law and to serve as a local\\n\\ncourt system\\\" created by Congress pursuant to its plenary powers\\n\\nare simply another example of those courts that did not fit the\\n\\nArticle III template (like state courts empowered to hear federal\\n\\ncases, military tribunals, the Court of Private Land Claims, and\\n\\nconsular courts), id. at 404, 407, 408. In short, Article III was\\n\\nnot trumped by Congress's creation of local courts pursuant to its\\n\\nArticle I power. Rather, Article III itself accommodates\\n\\nexceptions, and the local D.C. court system fits within the range\\n\\nof those exceptions. That there are courts in other territories\\n\\nof the same ilk does not alter this analysis. Palmore therefore\\n\\noffers no firm ground upon which to erect a general Article IV\\n\\nexception to separation-of-powers stalwarts such as the\\n\\nAppointments Clause.\\n\\n Finally, nothing about the \\\"Insular Cases\\\"11 casts doubt\\n\\nover our foregoing analysis. This discredited12 lineage of cases,\\n\\n\\n11 De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States,\\n182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901);\\nArmstrong v. United States, 182 U.S. 243 (1901); Downes, 182 U.S.\\n244; Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392\\n(1901).\\n12 See, e.g., Christina Duffy Burnett, A Convenient Constitution?:\\nExtraterritoriality After Boumediene, 109 Colum. L. Rev. 973, 982\\n(2009) (noting the Insular Cases have \\\"long been reviled\\\" for\\nconcluding that \\\"the Constitution does not 'follow the flag'\\noutside the United States\\\"); Jamal Greene, The Anticanon, 125 Harv.\\nL. Rev. 379, 437 (2011) (criticizing that \\\"the Insular Cases relied\\non Dred Scott as authority for the constitutional relationship\\n\\n -33-\\n\\fwhich ushered the unincorporated territories doctrine, hovers like\\n\\na dark cloud over this case. To our knowledge there is no case\\n\\neven intimating that if Congress acts pursuant to its authority\\n\\nunder the Territorial Clause it is excused from conforming with\\n\\nthe Appointments Clause, whether this be by virtue of the \\\"Insular\\n\\nCases\\\" or otherwise. Nor could there be, for it would amount to\\n\\nthe emasculation from the Constitution of one of its most important\\n\\nstructural pillars. We thus have no trouble in concluding that\\n\\nthe Constitution's structural provisions are not limited by\\n\\ngeography and follow the United States into its unincorporated\\n\\n\\n\\nbetween Congress and acquired territories\\\"); Andrew Kent,\\nBoumediene, Munaf, and the Supreme Court's Misreading of the\\nInsular Cases, 97 Iowa L. Rev. 101 (2011); Charles E.\\nLittlefield, The Insular Cases, 15 Harv. L. Rev. 169, 170 (1901)\\n(\\\"The Insular Cases, in the manner in which the results were\\nreached, the incongruity of the results, and the variety of\\ninconsistent views expressed by the different members of the court,\\nare, I believe, without a parallel in our judicial history.\\\");\\nGerald L. Neuman, Anomalous Zones, 48 Stan. L. Rev. 1197, 1221\\n(1996) (observing that \\\"the colonialism authorized in\\nthe Insular Cases . . . was not justified by either peculiar\\nnecessity or consent\\\"); Efrén Rivera Ramos, The Legal Construction\\nof American Colonialism: The Insular Cases (1901-1922), 65 Rev.\\nJur. U.P.R. 225 (1996); Juan R. Torruella, The Insular Cases: The\\nEstablishment of a Regime of Political Apartheid, 29 U. Pa. J.\\nInt'l L. 283 (2007); Adriel I. Cepeda Derieux, Note, A Most Insular\\nMinority: Reconsidering Judicial Deference to Unequal Treatment in\\nLight of Puerto Rico's Political Process Failure, 110 Colum. L.\\nRev. 797 (2010); Lisa María Pérez, Note, Citizenship Denied: The\\nInsular Cases and the Fourteenth Amendment, 94 Va. L. Rev. 1029\\n(2008); see also José A. Cabranes, Puerto Rico: Colonialism as\\nConstitutional Doctrine, 100 Harv. L. Rev. 450 (1986) (reviewing\\nJuan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine\\nof Separate and Unequal (1985)).\\n\\n -34-\\n\\fterritories. See Downes, 182 U.S. at 277 (Brown, J.) (noting that\\n\\n\\\"prohibitions [going] to the very root of the power of Congress to\\n\\nact at all, irrespective of time or place\\\" are operative in the\\n\\nunincorporated territories).\\n\\n Notwithstanding this doctrine, appellant UTIER asks us\\n\\nto go one step further and reverse the \\\"Insular Cases.\\\" Although\\n\\nthere is a lack of enthusiasm for the perdurance of these cases,13\\n\\nwhich have been regarded as a \\\"relic from a different era,\\\" Reid,\\n\\n354 U.S. at 12, and which Justice Frankfurter described as\\n\\n\\\"historically and juridically, an episode of the dead past about\\n\\nas unrelated to the world of today as the one-hoss shay is to the\\n\\nlatest jet airplane,\\\" Reid v. Covert 351 U.S. 487, 492\\n\\n(1956)(Frankfurter, J., reserving judgment), we cannot be induced\\n\\nto engage in an ultra vires act merely by siren songs. Not only\\n\\ndo we lack the authority to meet UTIER's request, but even if we\\n\\nwere writing on a clean slate, we would be required to stay our\\n\\nhand when dealing with constitutional litigation if other avenues\\n\\nof decision were available, and we believe there are in this case.\\n\\n In this respect, we are aided again by the Supreme\\n\\nCourt's decision in Reid, which although refusing to reverse the\\n\\n\\\"Insular Cases\\\" outright, provides in its plurality opinion\\n\\n\\n\\n13 See supra note 12.\\n\\n\\n -35-\\n\\finstructive language that outlines the appropriate course we ought\\n\\nto pursue in the instant appeal:\\n\\n The \\\"Insular Cases\\\" can be distinguished from the\\n present cases in that they involved the power of\\n Congress to provide rules and regulations to govern\\n temporarily territories with wholly dissimilar\\n traditions and institutions whereas here the basis\\n for governmental power is American citizenship. . . .\\n [I]t is our judgment that neither the cases nor their\\n reasoning should be given any further expansion.\\n\\nReid, 354 U.S. at 14 (plurality opinion) (emphasis added); see\\n\\nalso Boumediene v. Bush, 553 U.S. 723, 765 (2008) (\\\"Our basic\\n\\ncharter cannot be contracted away . . . . The Constitution grants\\n\\nCongress and the President the power to acquire, dispose of, and\\n\\ngovern territory, not the power to decide when and where its terms\\n\\napply.\\\").\\n\\n The only course, therefore, which we are allowed in light\\n\\nof Reid is to not further expand the reach of the \\\"Insular Cases.\\\"\\n\\nAccordingly, we conclude that the Territorial Clause and the\\n\\n\\\"Insular Cases\\\" do not impede the application of the Appointments\\n\\nClause in an unincorporated territory, assuming all other\\n\\nrequirements of that provision are duly met.\\n\\n B. Board Members Are \\\"Officers of the United States\\\"\\n Subject to the Appointments Clause\\n\\n We must now determine whether the Board Members qualify\\n\\nwithin the rubric of \\\"Officers of the United States,\\\" the\\n\\nAppointments Clause's job description that marks the entry point\\n\\n\\n -36-\\n\\ffor its coverage. The district court determined that the Board\\n\\nMembers do not fall under such a rubric. We disagree.\\n\\n We begin our analysis by turning to a triad of Supreme\\n\\nCourt decisions: Lucia v. SEC, 138 S. Ct. 2044 (2018); Freytag,\\n\\n501 U.S. 868; and Buckley v. Valeo, 424 U.S. 1 (1976). From these\\n\\ncases, we gather that the following \\\"test\\\" must be met for an\\n\\nappointee to qualify as an \\\"Officer of the United States\\\" subject\\n\\nto the Appointments Clause: (1) the appointee occupies a\\n\\n\\\"continuing\\\" position established by federal law; (2) the\\n\\nappointee \\\"exercis[es] significant authority\\\"; and (3) the\\n\\nsignificant authority is exercised \\\"pursuant to the laws of the\\n\\nUnited States.\\\" See Lucia, 138 S. Ct. at 2050-51; Freytag, 501\\n\\nU.S. at 881; Buckley, 424 U.S. at 126. In our view, the Board\\n\\nMembers readily meet these requirements.\\n\\n First, Board Members occupy \\\"continuing positions\\\" under\\n\\na federal law since PROMESA provides for their appointment to an\\n\\ninitial term of three years and they can thereafter be reappointed\\n\\nand serve until a successor takes office. 48 U.S.C. § 2121(e)(5)\\n\\n(A), (C)-(D). The continuity of the Board Members' position is\\n\\nfortified by the provision that only the President can remove them\\n\\nfrom office and then only for cause. Id. § 2121(e)(5)(B). In\\n\\nfact, the Board Members' term in office could well extend beyond\\n\\nthree years, as PROMESA stipulates that the Board will continue in\\n\\n\\n -37-\\n\\foperation until it certifies that the Commonwealth government has\\n\\nmet various fiscal objectives \\\"for at least 4 consecutive fiscal\\n\\nyears.\\\" Id. § 2149(2).\\n\\n Second, the Board Members plainly exercise \\\"significant\\n\\nauthority.\\\" For example, PROMESA empowers the Board Members to\\n\\ninitiate and prosecute the largest bankruptcy in the history of\\n\\nthe United States municipal bond market, see Yasmeen Serhan, Puerto\\n\\nRico Files for Bankruptcy, The Atlantic (May 3, 2017),\\n\\nhttps://www.theatlantic.com/news/archive/2017/05/puerto-rico-\\n\\nfiles-for-bankruptcy/525258/, with the bankruptcy power being a\\n\\nquintessential federal subject matter, see U.S. Const. art. I,\\n\\n§ 8, cl. 4 (\\\"The Congress shall have Power . . . [t]o establish\\n\\nuniform Laws on the subject of Bankruptcies throughout the United\\n\\nStates.\\\"). The Supreme Court recently reminded the Commonwealth\\n\\ngovernment of the bankruptcy power's exclusive federal nature in\\n\\nFranklin Cal. Tax-Free Trust, 136 S. Ct. at 1938.\\n\\n The Board Members' federal authority includes the power\\n\\nto veto, rescind, or revise Commonwealth laws and regulations that\\n\\nit deems inconsistent with the provisions of PROMESA or the fiscal\\n\\nplans developed pursuant to it. See 48 U.S.C. § 2144 (\\\"Review of\\n\\nactivities to ensure compliance with fiscal plan.\\\"). Likewise,\\n\\nthe Board showcases what can be construed as nothing but its\\n\\nsignificant authority when it rejects the budget of the\\n\\n\\n -38-\\n\\fCommonwealth or one of its instrumentalities, see id. § 2143\\n\\n(\\\"Effect of finding of noncompliance with budget\\\"); when it rules\\n\\non the validity of a fiscal plan proposed by the Commonwealth, id.\\n\\n§ 2141(c)(3); when it issues its own fiscal plan if it rejects the\\n\\nCommonwealth's proposed plan, id. § 2141(d)(2) (authorizing the\\n\\nBoard to develop a \\\"Revised Fiscal Plan\\\"); and when it exercises\\n\\nits sole discretion to file a plan of adjustment for Commonwealth\\n\\ndebt, id. § 2172(a) (\\\"Only the Oversight Board . . . may file a\\n\\nplan of adjustment of the debts of the debtor.\\\"). The Board can\\n\\nonly employ these significant powers because a federal law so\\n\\nprovides.\\n\\n Moreover, Board Members' investigatory and enforcement\\n\\npowers, as carried out collectively by way of the Board, exceed or\\n\\nare at least equal to those of the judicial officers the Supreme\\n\\nCourt found to be \\\"Officers of the United States\\\" in Lucia. See\\n\\n138 S. Ct. at 2053. There, the Supreme Court held that\\n\\nadministrative law judges are \\\"Officers of the United States,\\\" in\\n\\npart, because they can receive evidence at hearings and administer\\n\\noaths. Id. PROMESA grants the Board Members the same right and\\n\\nmore. See 48 U.S.C. § 2124(a); id. § 2124(b) (\\\"Any member . . .\\n\\nof the Oversight Board may, if authorized by the Oversight Board,\\n\\ntake any action that the Oversight Board is authorized to take by\\n\\nthis section.\\\"); id. § 2124(c) (\\\"Obtaining official data\\\"); id.\\n\\n\\n -39-\\n\\f§ 2124(f) (\\\"Subpoena power\\\"). In short, the Board Members enjoy\\n\\n\\\"significant discretion\\\" as they carry out \\\"important functions,\\\"\\n\\nFreytag, 501 U.S. at 881, under a federal law -- qualities that\\n\\nthe Supreme Court has considered for decades as the birthmark of\\n\\nfederal officers who are subject to the Appointments Clause.\\n\\n Third, the Board Members' authority is exercised\\n\\n\\\"pursuant to the laws of the United States.\\\" The Board Members\\n\\ntrace their authority directly and exclusively to a federal law,\\n\\nPROMESA. That federal law provides both their authority and their\\n\\nduties. Essentially everything they do is pursuant to federal law\\n\\nunder which the adequacy of their performance is judged by their\\n\\nfederal master. And this federal master serves in the seat of\\n\\nfederal power, not San Juan. The Board Members are, in short,\\n\\nmore like Roman proconsuls picked in Rome to enforce Roman law and\\n\\noversee territorial leaders than they are like the locally selected\\n\\nleaders that Rome allowed to continue exercising some authority.\\n\\nSee, e.g., Louis J. Sirico, Jr., The Federalist and the Lessons of\\n\\nRome, 75 Miss. L.J. 431, 484 (2006); Dávila Asks House for Reily\\n\\nInquiry, N.Y. Times (Apr. 5, 1922), https://timesmachine.nytimes.\\n\\ncom/timesmachine/1922/04/05/112681107.pdf. (comparing the then-\\n\\nappointed Governor of Puerto Rico to a Roman proconsul)\\n\\n The United States makes two arguments in support of the\\n\\ndistrict court's opinion and PROMESA's current appointments\\n\\n\\n -40-\\n\\fprotocol that warrant our direct response at this point. First,\\n\\nthe United States argues that historical precedent suggests the\\n\\ninapplicability of the Appointments Clause to the territories.\\n\\nSecond, the United States contends that if we find for appellants,\\n\\nsuch a ruling will invalidate the present-day democratically\\n\\nelected local governments of Puerto Rico and the other\\n\\nunincorporated territories because the officers of such\\n\\ngovernments took office without the Senate's advice and consent.\\n\\nWe reject each argument in turn.\\n\\n The relevant historical precedents of which we are aware\\n\\nlead us to a different conclusion than that claimed by the United\\n\\nStates. Excepting the short period during which Puerto Rico was\\n\\nunder military administration following the Spanish-American War,\\n\\nthe major federal appointments to Puerto Rico's civil government\\n\\nthroughout the first half of the 20th century all complied with\\n\\nthe Appointments Clause.\\n\\n Beginning in 1900 with the Foraker Act, the Governor of\\n\\nPuerto Rico was to be nominated by the President and confirmed by\\n\\nthe Senate to a term of four years \\\"unless sooner removed by the\\n\\nPresident.\\\" An Act temporarily to provide revenues and a civil\\n\\ngovernment for Porto Rico, ch. 191, 31 Stat. 77, 81 (1900). The\\n\\nForaker Act also mandated presidential nomination and Senate\\n\\nconfirmation of the members of Puerto Rico's \\\"Executive Council\\\"\\n\\n\\n -41-\\n\\f(which assumed the dual role of executive cabinet and upper chamber\\n\\nof the territorial legislature). Id. The Executive Council\\n\\nconsisted of a secretary, an attorney general, a treasurer, an\\n\\nauditor, a commissioner of the interior, a commissioner of\\n\\neducation, and five other persons \\\"of good repute.\\\" Id. In\\n\\naddition, the Foraker Act also subjected the justices of the Puerto\\n\\nRico Supreme Court, along with the marshal and judge of the\\n\\nterritorial U.S. District Court for the District of \\\"Porto\\\" Rico,\\n\\nto the strictures of the Appointments Clause. Id. Even the three\\n\\nmembers of a commission established to compile and revise the laws\\n\\nof \\\"Porto\\\" Rico were made subject to the Appointments Clause. Id.\\n\\n The Foraker Act regime lasted until 1917, when Congress\\n\\npassed the Jones-Shafroth Act. See An Act to provide a civil\\n\\ngovernment for Porto Rico, ch. 145, 39 Stat. 951 (1917). Here\\n\\nagain, Congress provided for all key appointments by Washington to\\n\\nPuerto Rico's territorial government to meet the Appointments\\n\\nClause: the governor, attorney general, commissioner of education,\\n\\nsupreme court justices, district attorney, U.S. marshal, and U.S.\\n\\nterritorial district judge were to be appointed by the President\\n\\nwith the advice and consent of the Senate. Id. In sum, between\\n\\n1900 and 1947 -- the last time the Island had a federally-selected\\n\\nGovernor -- each of the presidentially appointed Governors of\\n\\n\\n\\n\\n -42-\\n\\fPuerto Rico acquired their office after receiving the Senate's\\n\\nblessing.14\\n\\n As the United States would have it, Congress's\\n\\nrequirement of Senate confirmation for presidential nominees in\\n\\nall of the aforementioned contexts was mere voluntary legislative\\n\\nsurplusage. This position, however, directly contravenes the\\n\\npublished opinions of the United States' own Office of Legal\\n\\nCounsel issued as recently as 2007. See \\\"Officers of the United\\n\\nStates Within the Meaning of the Appointments Clause,\\\" 31 Op.\\n\\nO.L.C. 73, 122 (2007) (\\\"[A]n individual who will occupy a position\\n\\nto which has been delegated by legal authority a portion of the\\n\\nsovereign powers of the federal government, which is 'continuing,'\\n\\nmust be appointed pursuant to the Appointments Clause.\\\"); see also\\n\\nJennifer L. Mascott, Who Are \\\"Officers of the United States\\\", 70\\n\\nStan. L. Rev. 443, 564 (2018) (\\\"Extensive evidence suggests that\\n\\n\\n\\n14 The early appointments to high-level office in the territorial\\ngovernments of the Philippines, Guam, and the Virgin Islands also\\nconformed with the Appointments Clause. See Organic Act of Guam\\nof 1950, § 6, 64 Stat. 512 (1950) (providing that the Governor of\\nGuam \\\"shall be appointed by the President, by and with the advice\\nand consent of the Senate of the United States\\\"); Organic Act of\\nVirgin Islands, § 20, 49 Stat. 1807 (1936) (providing for the\\npresidential nomination and Senate confirmation of the Governor,\\nwho will then be under supervision of the Secretary of the\\nInterior). Even the Panama Canal Zone, during its period under\\nUnited States control, had a Governor appointed by the President\\n\\\"by and with the advice of the Senate.\\\" See Panama Canal Act, 37\\nStat. 560 (1912).\\n\\n\\n -43-\\n\\fthe original public meaning of 'officer' in Article II includes\\n\\nall federal officials with responsibility for an ongoing statutory\\n\\nduty.\\\"). At a minimum, the United States' posture runs head\\n\\nagainst the sound principle of legislative interpretation\\n\\nbordering on dogma that \\\"'[l]ong settled and established practice\\n\\nis a consideration of great weight in proper interpretation of\\n\\nconstitutional provisions' regulating the relationship between\\n\\nCongress and the President.\\\" NLRB v. Noel Canning, 134 S. Ct.\\n\\n2550, 2559 (2014) (citing The Pocket Veto Case, 279 U.S. 655, 689\\n\\n(1929)). Furthermore, the United States fails to support its\\n\\nassertion with legislative history or other evidence establishing\\n\\nthat Congress's largely consistent adherence to Appointments\\n\\nClause procedures in appointing territorial officials was\\n\\ngratuitous. Lacking such an explanation, we believe it is more\\n\\nprobable that Congress was simply complying with what the\\n\\nConstitution requires. Furthermore, that largely consistent\\n\\ncompliance with Appointment Clause procedures in hundreds if not\\n\\nthousands of instances over two centuries belies any claim that\\n\\nadherence to those procedures impedes Congress's exercise of its\\n\\nplenary powers within the territories.\\n\\n The United States, as well as the Board, also point to\\n\\nthe manner in which Congress has for centuries allowed territories\\n\\nto elect territorial officials, including for example the governor\\n\\n\\n -44-\\n\\fof Puerto Rico since 1947. See An Act to amend the Organic Act\\n\\nof Puerto Rico, ch. 490, 61 Stat. 770 (1947). Congress created\\n\\nmany of these territorial positions and they were filled not\\n\\nthrough presidential nomination and Senate confirmation, but\\n\\nrather by elections within the territory. The Board's basic point\\n\\n(and the United States' basic point as well) is this: If we find\\n\\nthat the Board Members must be selected by presidential nomination\\n\\nand Senate confirmation, then that would mean that, for example,\\n\\nall elected territorial governors and legislators have been\\n\\nselected in an unconstitutional manner.\\n\\n We disagree. The elected officials to which the Board\\n\\nand the United States point -- even at the highest levels -- are\\n\\nnot federal officers. They do not \\\"exercise significant authority\\n\\npursuant to the laws of the United States.\\\" See Lucia, 138 S. Ct.\\n\\nat 2051; Freytag, 501 U.S. at 881; Buckley, 424 U.S. at 126; see\\n\\nalso United States v. Germaine, 99 U.S. 508, 511-12 (1878).\\n\\nRather, they exercise authority pursuant to the laws of the\\n\\nterritory. Thus, in Puerto Rico for example, the Governor is\\n\\nelected by the citizens of Puerto Rico, his position and power are\\n\\nproducts of the Commonwealth's Constitution, see Puerto Rico\\n\\nConst. art. IV, and he takes an oath similar to that taken by the\\n\\ngovernor of a state, id. § 16; see also, e.g., N.Y. Const.\\n\\n\\n\\n\\n -45-\\n\\fart. XIII, § 1; Ala. Const. art. XVI, § 279; N.H. Const. pt. II,\\n\\nart. 84.\\n\\n It is true that the Commonwealth laws are themselves the\\n\\nproduct of authority Congress has delegated by statute. See\\n\\nPuerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1875 (2016). So\\n\\nthe elected Governor's power ultimately depends on the\\n\\ncontinuation of a federal grant. But that fact alone does not\\n\\nmake the laws of Puerto Rico the laws of the United States, else\\n\\nevery claim brought under Puerto Rico's laws would pose a federal\\n\\nquestion. See Viqueira v. First Bank, 140 F.3d 12, 19 (1st Cir.\\n\\n1998) (\\\"[T]he plaintiffs' complaint alleges manifold claims under\\n\\nPuerto Rico law, but it fails to assert any claim arising under\\n\\nfederal law. Accordingly, no jurisdiction lies under 28 U.S.C.\\n\\n§ 1331.\\\"); Everlasting Dev. Corp. v. Sol Luis Descartes, 192 F.2d\\n\\n1, 6 (1st Cir. 1951) (\\\"Of course, in so far as the controversy\\n\\nrelates to the construction of an insular [Puerto Rico] tax\\n\\nexemption statute, that is not a federal question.\\\").\\n\\n C. The Board Members are Principal Officers of the United\\n States\\n\\n Having concluded that the Board Members are indeed\\n\\nUnited States officers, we now turn to the specific means by which\\n\\nthey must be appointed pursuant to the Appointments Clause. If\\n\\nthe officer is a \\\"principal\\\" officer, the only constitutional\\n\\nmethod of appointment is by the President, by and with the advice\\n\\n -46-\\n\\fand consent of the Senate. U.S. Const. Art. II, § 2, cl. 2;\\n\\nEdmond, 520 U.S. at 659. But when an officer is \\\"inferior,\\\"\\n\\nCongress may choose to vest the appointment in the President alone,\\n\\nthe courts, or a department head. Edmond, 520 U.S. at 660; U.S.\\n\\nConst. Art. II, § 2, cl. 2. And the Board argues (but we do not\\n\\ndecide) that the President appointed the Board Members\\n\\nnotwithstanding the restricted choice from congressional lists.\\n\\n In Morrison v. Olson, the Supreme Court held that an\\n\\nindependent counsel was an \\\"inferior\\\" officer because she was\\n\\nsubject to removal by the attorney general and because she had\\n\\nlimited duties, jurisdiction, and tenure, among other factors.\\n\\n487 U.S. 654, 671-672 (1988). More than a decade later, the Court\\n\\nheld that an \\\"inferior\\\" officer was one \\\"whose work is directed\\n\\nand supervised at some level by others who were appointed by\\n\\nPresidential nomination with the advice and consent of the Senate.\\\"\\n\\nEdmond, 520 U.S. at 663. Our circuit later squared the two cases\\n\\nby holding that Edmond's supervision test was sufficient, but not\\n\\nnecessary.15 See United States v. Hilario, 218 F.3d 19, 25 (1st\\n\\n\\n15 There has been long-lasting confusion as to whether Morrison\\nis still good law. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947\\n(2017) (Thomas, J., concurring) (\\\"Although we did not explicitly\\noverrule Morrison in Edmond, it is difficult to see how Morrison's\\nnebulous approach survived our opinion in Edmond.\\\"); Akhil Reed\\nAmar, Intratextualism, 112 Harv. L. Rev. 747, 810, 811 (1999)\\n(arguing that Morrison provided \\\"a doctrinal test good for one day\\nonly\\\" and that in Edmond the Supreme Court \\\"apparently abandoned\\nMorrison's ad hoc test\\\"); but see In re Grand Jury Investigation,\\n\\n -47-\\n\\fCir. 2000). Therefore, inferior officers are those who are\\n\\ndirected and supervised by a presidential appointee; otherwise,\\n\\nthey \\\"might still be considered inferior officers if the nature of\\n\\ntheir work suggests sufficient limitations of responsibility and\\n\\nauthority.\\\" Id.\\n\\n The Board Members clearly satisfy the Edmond test. They\\n\\nare answerable to and removable only by the President and are not\\n\\ndirected or supervised by others who were appointed by the\\n\\nPresident with Senate confirmation. 48 U.S.C. § 2121(e)(5)(B);\\n\\nEdmond, 520 U.S. at 663. Considering the additional Morrison\\n\\nfactors does not change the calculus. Though the Board Members'\\n\\ntenure \\\"is 'temporary' in the sense that [they are] appointed\\n\\nessentially to accomplish a single task, and when that task is\\n\\nover the [Board] is terminated,\\\" Morrison, 487 U.S. at 672, the\\n\\nBoard's vast duties and jurisdiction are insufficiently limited.\\n\\nSignificantly, while the independent counsel in Morrison was\\n\\n\\n315 F. Supp. 3d 602, 640 (D.D.C. 2018) (considering the Morrison\\nfactors in determining that special counsel is an inferior officer\\nof the United States). More recently, in Free Enter. Fund v.\\nPublic Co. Accounting Oversight Bd., the Supreme Court held that\\nmembers of the Public Company Accounting Oversight Board, who were\\nsupervised by the SEC, were inferior officers. 561 U.S. 477, 510\\n(2010). In so doing, the Court cited Edmond for the proposition\\nthat \\\"[w]hether one is an 'inferior' officer depends on whether he\\nhas a superior.\\\" Id. However, the Edmond language has already\\nbeen analyzed by this court and reconciled with Morrison. Because\\nFree Enterprise does not explicitly overrule Morrison, it does not\\naffect our precedent.\\n\\n\\n -48-\\n\\funable to \\\"formulate policy for the Government or the Executive\\n\\nBranch,\\\" PROMESA explicitly grants such authority. See 48 U.S.C.\\n\\n§ 2144(b)(2). And whereas the jurisdiction of the independent\\n\\ncounsel was limited, Morrison, 487 U.S. at 672, the Board's\\n\\nauthority spans across the economy of Puerto Rico -- a territory\\n\\nwith a population of nearly 3.5 million -- overpowering that of\\n\\nthe Commonwealth's own elected officials. Under Edmond and\\n\\nMorrison, the Board Members are \\\"principal\\\" United States\\n\\nofficers. See Hilario, 218 F.3d at 25. They therefore should\\n\\nhave been appointed by the President, by and with the advice and\\n\\nconsent of the Senate. Art. II, § 2, cl.2.\\n\\n THE REMEDY\\n\\n Having concluded that the process PROMESA provides for\\n\\nthe appointment of Board Members is unconstitutional, we are left\\n\\nto determine the relief to which appellants are entitled. Both\\n\\nAurelius and the UTIER ask that we order dismissal of the Title\\n\\nIII petitions that the Board filed to commence the restructuring\\n\\nof Commonwealth debt. In doing so, appellants suggest that we\\n\\nought to deem invalid all of the Board's actions until today and\\n\\nthat this case does not warrant application of the de facto officer\\n\\ndoctrine. It would then be on a constitutionally reconstituted\\n\\nBoard, they say, to ratify or not ratify the unconstitutional\\n\\nBoard's actions. Appellants also request that we sever from 48\\n\\n\\n -49-\\n\\fU.S.C. § 2121(e) the language that authorizes the Board Members'\\n\\nappointment without Senate confirmation.\\n\\n There is no question but that in fashioning a remedy to\\n\\ncorrect the constitutional violation we have found it is unlikely\\n\\nthat a perfect solution is available. In choosing among potential\\n\\noptions, we ought to reduce the disruption that our decision may\\n\\ncause. But we are readily aided by several factors in this\\n\\nrespect.\\n\\n First, PROMESA itself contains an express severability\\n\\nclause, stating as follows:\\n\\n Except as provided in subsection (b) [regarding\\n uniformity of similarly situated territories], if any\\n provision of this chapter or the application thereof\\n to any person or circumstance is held invalid, the\\n remainder of this chapter, or the application of that\\n provision to persons or circumstances other than those\\n as to which it is held invalid, is not affected\\n thereby, provided that subchapter III is not severable\\n from subchapters I and II, and subchapters I and II\\n are not severable from subchapter III.\\n\\n48 U.S.C. § 2102.\\n\\n Such a clause \\\"creates a presumption that Congress did\\n\\nnot intend the validity of the statute in question to depend on\\n\\nthe validity of [a] constitutionally offensive provision.\\\" Alaska\\n\\nAirlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).\\n\\n Severability in this instance is especially appropriate\\n\\nbecause Congress, within PROMESA, has already provided an\\n\\nalternative appointments mechanism, at least as to six of the Board\\n\\n -50-\\n\\fMembers. PROMESA directs that if the mechanism we found\\n\\nunconstitutional is not employed, \\\"[w]ith respect to the\\n\\nappointment of a Board member . . . such an appointment shall be\\n\\nby and with the advice and consent of the Senate, unless the\\n\\nPresident appoints an individual from a list, . . . in which case\\n\\nno Senate confirmation is required.\\\" 48 U.S.C. § 2121(e)(2)(E)\\n\\n(emphasis added).\\n\\n Accordingly, we hold that the present provisions\\n\\nallowing the appointment of Board Members in a manner other than\\n\\nby presidential nomination followed by the Senate's confirmation\\n\\nare invalid and severable. We do not hold invalid the remainder\\n\\nof the Board membership provisions, including those providing the\\n\\nqualifications for office and for appointment by the President\\n\\nwith the advice and consent of the Senate.\\n\\n Second, we reject appellants' invitation to dismiss the\\n\\nTitle III petitions and cast a specter of invalidity over all of\\n\\nthe Board's actions until the present day. To the contrary, we\\n\\nfind that application of the de facto officer doctrine is\\n\\nespecially appropriate in this case.\\n\\n An ancient tool of equity, the de facto officer doctrine\\n\\n\\\"confers validity upon acts performed by a person acting under the\\n\\ncolor of official title even though it is later discovered that\\n\\nthe legality of that person's appointment . . . to office is\\n\\n\\n -51-\\n\\fdeficient.\\\" Ryder v. United States, 515 U.S. 179, 180 (1995)\\n\\n(citing Norton v. Shelby Cnty., 118 U.S. 425, 440 (1886)); see\\n\\nalso Note, The De Facto Officer Doctrine, 63 Colum. L. Rev. 909,\\n\\n909 n.1 (1963) (\\\"The first reported case to discuss the concept of\\n\\nde facto authority was The Abbe of Fountaine, 9 Hen. VI, at 32(3)\\n\\n(1431).\\\"). A de facto officer is \\\"one whose title is not good in\\n\\nlaw, but who is in fact in the unobstructed possession of an office\\n\\nand discharging its duties in full view of the public, in such\\n\\nmanner and under such circumstances as not to present the\\n\\nappearance of being an intruder or usurper.\\\" Waite v. Santa Cruz,\\n\\n184 U.S. 302, 323 (1902). Our sister court for the D.C. Circuit\\n\\nhas described the doctrine as \\\"protect[ing] citizens' reliance on\\n\\npast government actions and the government's ability to take\\n\\neffective and final action.\\\" Andrade v. Lauer, 729 F.2d 1475,\\n\\n1499 (D.C. Cir. 1984).\\n\\n Here, the Board Members were acting with the color of\\n\\nauthority -- namely, PROMESA -- when, as an entity, they decided\\n\\nto file the Title III petitions on the Commonwealth's behalf, a\\n\\npower squarely within their lawful toolkit. And there is no\\n\\nindication but that the Board Members acted in good faith in moving\\n\\nto initiate such proceedings. See Leary v. United States, 268\\n\\nF.2d 623, 627 (9th Cir. 1959). Moreover, the Board Members' titles\\n\\nto office were never in question until our resolution of this\\n\\n\\n -52-\\n\\fappeal.\\n\\n Other considerations further counsel for our application\\n\\nof the de facto officer doctrine. We fear that awarding to\\n\\nappellants the full extent of their requested relief will have\\n\\nnegative consequences for the many, if not thousands, of innocent\\n\\nthird parties who have relied on the Board's actions until now.\\n\\nIn addition, a summary invalidation of everything the Board has\\n\\ndone since 2016 will likely introduce further delay into a historic\\n\\ndebt restructuring process that was already turned upside down\\n\\nonce before by the ravage of the hurricanes that affected Puerto\\n\\nRico in September 2017. See Stephanie Gleason, Puerto Rico's\\n\\nBankruptcy Delayed, Moved to New York Following Hurricane María,\\n\\nThe Street (Sept. 26, 2017), https://www.thestreet.com/story/\\n\\n14320965/1/puerto-rico-s-bankruptcy-delayed-moved-to-new-york-\\n\\nfollowing-hurricane-maria.html. At a minimum, dismissing the\\n\\nTitle III petitions and nullifying the Board's years of work will\\n\\ncancel out any progress made towards PROMESA's aim of helping\\n\\nPuerto Rico \\\"achieve fiscal responsibility and access to the\\n\\ncapital markets.\\\" 48 U.S.C. § 2121(a).\\n\\n We therefore decline to order dismissal of the Board's\\n\\nTitle III petitions. Our ruling, as such, does not eliminate any\\n\\notherwise valid actions of the Board prior to the issuance of our\\n\\nmandate in this case. In so doing, we follow the Supreme Court's\\n\\n\\n -53-\\n\\fexact approach in Buckley, 424 U.S. at 1, which involved an\\n\\nAppointments Clause challenge to the then recently formed Federal\\n\\nElection Commission. Although the Court held that the Commission\\n\\nwas in fact constituted in violation of the Appointments Clause,\\n\\nid. at 140, it nonetheless found that such a constitutional\\n\\ninfirmity did \\\"not affect the validity of the Commission's . . .\\n\\npast acts,\\\" id. at 142. We conclude the same here and find that\\n\\nseverance is the appropriate relief to which appellants are\\n\\nentitled after they successfully and \\\"timely challenge[d] . . .\\n\\nthe constitutional validity of\\\" the Board Members' appointment.\\n\\nRyder, 515 U.S. at 182-83.\\n\\n Finally, our mandate in these appeals shall not issue\\n\\nfor 90 days, so as to allow the President and the Senate to validate\\n\\nthe currently defective appointments or reconstitute the Board in\\n\\naccordance with the Appointments Clause. Cf. Weinberger v.\\n\\nRomero-Barceló, 456 U.S. 305, 312-313 (1982). During the 90-day\\n\\nstay period, the Board may continue to operate as until now.\\n\\n CONCLUSION\\n\\n In sum, we hold that the Board Members (other than the\\n\\nex officio Member) must be, and were not, appointed in compliance\\n\\nwith the Appointments Clause. Accordingly, the district court's\\n\\nconclusion to the contrary is reversed. We direct the district\\n\\ncourt to enter a declaratory judgment to the effect that PROMESA's\\n\\n\\n -54-\\n\\fprotocol for the appointment of Board Members is unconstitutional\\n\\nand must be severed. We affirm, however, the district court's\\n\\ndenial of appellants' motions to dismiss the Title III\\n\\nproceedings. Each party shall bear its own costs.\\n\\n So ordered.\\n\\n Reversed in part and Affirmed in part.\\n\\n\\n\\n\\n -55-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":472,"cells":{"id":{"kind":"number","value":4591386,"string":"4,591,386"},"name":{"kind":"string","value":"MS. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. REGIONAL SCHOOL UNIT 72, Defendant, Appellant, Maine Department of Education, Defendant. Ms. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. Maine Department of Education, Defendant, Appellant, Regional School Unit 72, Defendant."},"name_abbreviation":{"kind":"string","value":"Ms. S. v. Regional School Unit 72"},"decision_date":{"kind":"string","value":"2019-02-15"},"docket_number":{"kind":"string","value":"17-2214P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Selya, Lipez\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888028/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888029/\", \"author_raw\": \"\"}, {\"author\": \"LYNCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-2214\\n\\n MS. S., individually and\\n as parent and legal guardian of B.S., a minor,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n REGIONAL SCHOOL UNIT 72,\\n\\n Defendant, Appellant,\\n\\n MAINE DEPARTMENT OF EDUCATION,\\n\\n Defendant.\\n\\nNo. 18-1004\\n\\n MS. S., individually and\\n as parent and legal guardian of B.S., a minor,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n MAINE DEPARTMENT OF EDUCATION,\\n\\n Defendant, Appellant,\\n\\n REGIONAL SCHOOL UNIT 72,\\n\\n Defendant.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Jon D. Levy, U.S. District Judge]\\n\\n Before\\n\\n Lynch, Selya, and Lipez,\\n Circuit Judges.\\n\\n\\n Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on\\nbrief, for appellant, Regional School Unit 72.\\n Sarah A. Forster, Assistant Attorney General, with whom\\nThomas A. Knowlton, Assistant Attorney General, Of Counsel, and\\nPhyllis Gardiner, Assistant Attorney General, were on brief, for\\nappellant, Maine Department of Education.\\n Richard L. O'Meara, with whom Murray, Plumb & Murray was on\\nbrief, for appellee.\\n\\n\\n February 15, 2019\\n\\n LYNCH, Circuit Judge. These appeals stem from a\\n\\ncomplaint filed by Ms. S. with the Maine Department of Education\\n\\n(\\\"MDOE\\\") in May 2013 alleging violations of the Individuals with\\n\\nDisabilities Education Act (\\\"IDEA\\\"). The state due process hearing\\n\\nofficer dismissed as untimely Ms. S.'s claims about her son B.S.'s\\n\\neducation in school years 2009-2010 and 2010-2011 and found no\\n\\nviolations as to school years 2011-2012 and 2012-2013.\\n\\n In this second decision from this court, we hold that\\n\\nMaine has established a two-year statute of limitations for due\\n\\nprocess complaints and that it has done so to align its statute of\\n\\nlimitations with the IDEA's. Ms. S.'s claims about 2009-2010 and\\n\\n2010-2011 are thus time barred. More specifically, we reverse the\\n\\ndistrict court's ruling that our earlier decision in Ms. S. v.\\n\\nRegional School Unit 72 (Ms. S. I), 829 F.3d 95 (1st Cir. 2016),\\n\\nforeclosed this interpretation of Maine's Unified Special\\n\\nEducation Regulation (\\\"MUSER\\\"), as well as the district court's\\n\\njudgment that Ms. S.'s claims were timely. See MS. S. v. Reg'l\\n\\nSch. Unit 72, No. 2:13-CV-453-JDL, 2017 WL 5565206, at *7-11 (D.\\n\\nMe. Nov. 20, 2017). And we reject Ms. S's proposed construction\\n\\nof MUSER, her waiver argument, and her contention that Regional\\n\\nSchool Unit 72 (\\\"RSU 72\\\") misled her. We remand with instructions\\n\\nto dismiss her action with prejudice.\\n\\n\\n\\n\\n - 3 -\\n\\n I.\\n\\nA. Legal Background\\n\\n 1. The IDEA\\n\\n The IDEA requires states receiving federal special\\n\\neducation funds to provide eligible children with a free\\n\\nappropriate public education, or FAPE. 20 U.S.C. § 1412(a)(1).\\n\\nParents concerned that their child is not receiving a FAPE can\\n\\nrequest a due process hearing before a \\\"State educational agency\\\"\\n\\nin accordance with procedures \\\"determined by State law or by the\\n\\nState educational agency.\\\" Id. § 1415(f)(1)(A). State procedures\\n\\nmust be consistent with the IDEA's guidelines, which are laid out\\n\\nat 20 U.S.C. § 1415. See Burlington v. Dep't of Educ. for the\\n\\nComm. of Mass., 736 F.2d 773, 783-85 (1st Cir. 1984).\\n\\n Section 1415 did not initially include a statute of\\n\\nlimitations, but when Congress reauthorized the IDEA in 2004, it\\n\\naddressed the timeline for due process hearings in three\\n\\nprovisions. First, at § 1415(b)(6)(B), in a subsection covering\\n\\nvarious \\\"[t]ypes of procedures,\\\" the IDEA states that a party may\\n\\nfile a complaint that:\\n\\n sets forth an alleged violation that occurred not more\\n than 2 years before the date the parent or public agency\\n knew or should have known about the alleged action that\\n forms the basis of the complaint, or, if the State has\\n an explicit time limitation for presenting such a\\n complaint under this subchapter, in such time as the\\n State law allows, except that the exceptions to the\\n timeline described in subsection (f)(3)(D) shall apply\\n to the timeline described in this subparagraph.\\n\\n\\n\\n - 4 -\\n\\n20 U.S.C. § 1415(b)(6)(B) (emphasis added).\\n\\n Second, § 1415 describes due process hearings with\\n\\nparticularity, at § 1415 (f). Section 1415(f)(3)(C) provides:\\n\\n A parent or agency shall request an impartial due process\\n hearing within 2 years of the date the parent or agency\\n knew or should have known about the alleged action that\\n forms the basis of the complaint, or, if the State has\\n an explicit time limitation for requesting such a\\n hearing under this subchapter, in such time as the State\\n law allows.\\n\\nId. § 1415(f)(3)(C) (emphasis added).\\n\\n Third, the statute outlines the \\\"[e]xceptions to the\\n\\ntimeline\\\" referenced at § 1415(b)(6)(B). One exception applies\\n\\nwhere \\\"the parent was prevented from requesting the hearing due\\n\\nto . . . specific misrepresentations by the local educational\\n\\nagency that it had resolved the problem forming the basis of the\\n\\ncomplaint.\\\" Id. § 1415(f)(3)(D).\\n\\n In 2015, the Third Circuit held in G.L. v. Ligonier\\n\\nValley School District Authority, 802 F.3d 601, 604-05 (3d Cir.\\n\\n2015), that \\\"§ 1415(b)(6)(B) is simply an inartful attempt to\\n\\nmirror § 1415(f)(3)(C)'s two-year statute of limitations.\\\" In\\n\\n2017, the Ninth Circuit concluded the same. See Avila v. Spokane\\n\\nSch. Dist. 81, 852 F.3d 936, 937 (9th Cir. 2017).\\n\\n 2. MUSER\\n\\n In 2007, Maine enacted a state-specific time limitation,\\n\\nwhich is provided in MUSER. MUSER mirrors the language of the\\n\\n\\n\\n\\n - 5 -\\n\\nIDEA. First, MUSER § XVI.5.A(2) tracks the language of 20 U.S.C.\\n\\n§ 1415(b)(6)(B) and states:\\n\\n The due process hearing request must allege a\\n violation that occurred not more than two\\n years before the date the parent . . . knew or\\n should have known about the alleged action\\n that forms the basis of the due process\\n hearing request.\\n\\nMe. Code R. 05-071, Ch. 101 (\\\"MUSER\\\") § XVI.5.A(2) (emphasis\\n\\nadded). Second, MUSER § XVI.13.E tracks the language of 20 U.S.C.\\n\\n§ 1415(f)(3)(C) and reads:\\n\\n A parent . . . must request an impartial\\n hearing on their due process hearing request\\n within two years of the date the parent or\\n agency knew or should have known about the\\n alleged action that forms the basis of the due\\n process hearing request.\\n\\nId. § XVI.13.E (emphasis added). Third, at § XVI.13.F, MUSER\\n\\ndescribes the \\\"[e]xceptions to the timeline\\\" provided at\\n\\n§ 1415(f)(3)(D) of the IDEA. Id. § XVI.13.F.\\n\\nB. Procedural Background\\n\\n Our decision in Ms. S. I offers background on B.S.'s\\n\\neducation. See 829 F.3d at 100–02. Here, we give the relevant\\n\\nprocedural facts.\\n\\n Ms. S. filed a due process hearing request in May 2013\\n\\nalleging that B.S. had not received a FAPE in his four years of\\n\\nhigh school, from 2009 through 2013. The Maine hearing officer\\n\\ndismissed as untimely the claims about B.S.'s ninth and tenth grade\\n\\nyears because they had been filed more than two years after Ms. S.\\n\\n\\n\\n - 6 -\\n\\nknew or should have known of any IDEA violations. On B.S.'s\\n\\neleventh and twelfth grade years, the hearing officer determined\\n\\nthat B.S. had received a FAPE, except during a short period when\\n\\nhe was between schools.\\n\\n Ms. S. sought judicial review in federal district court.\\n\\nShe did not contest that the ninth and tenth grade claims had been\\n\\nfiled more than two years after the reasonable discovery date.\\n\\nInstead, she challenged MUSER's two-year statute of limitations as\\n\\ninvalid under the Maine Administrative Procedure Act (\\\"MAPA\\\").\\n\\nThe time periods at MUSER §§ XVI.5.A(2) and XVI.13.E had been\\n\\nchanged from four to two years in a 2010 rulemaking. Ms. S.\\n\\nalleged that procedural errors during that rulemaking invalidated\\n\\nthe change in the time period at § XVI.13.E. About § XVI.5.A(2),\\n\\nshe argued not that the change was invalid but that it was\\n\\nirrelevant: § XVI.5.A(2), she said, established not a statute of\\n\\nlimitations but a separate \\\"look-back term\\\" restricting relief to\\n\\nviolations that occurred up to two years before the reasonable\\n\\ndiscovery date.\\n\\n The district court ruled that the revision of the statute\\n\\nof limitations to two years was valid and that Ms. S. could not\\n\\nbring her claims about B.S.'s ninth and tenth grade years under\\n\\nthe specific misrepresentation exception. The district court also\\n\\nagreed with the hearing officer's FAPE determination. Ms. S.\\n\\n\\n\\n\\n - 7 -\\n\\nappealed. The school district, as appellee, defended against her\\n\\nclaims of error.\\n\\n Our first decision in Ms. S. I affirmed the district\\n\\ncourt's FAPE judgment. 829 F.3d at 113-15. The decision vacated\\n\\nand remanded on the timing issue after finding errors in the\\n\\ndistrict court's application of MAPA. Id. at 100. Ms. S. I did\\n\\nnot rule on the statute of limitations issue. Holding that the\\n\\nrecord was \\\"insufficient,\\\" we remanded to the district court for\\n\\nfurther factfinding and reevaluation. Id.\\n\\n On remand, the district court immediately granted MDOE\\n\\nleave to intervene, limited to the issue of whether MUSER had a\\n\\nvalid two-year statute of limitations.1 MDOE was ordered to\\n\\n\\\"compile a record of relevant administrative and legislative\\n\\nproceedings,\\\" and it later submitted over 500 pages of materials.\\n\\nIn her briefing, Ms. S. maintained that the change at § XVI.13.E\\n\\nwas void under MAPA. MDOE and RSU 72 offered a reworking of their\\n\\nview of the legal framework: the two MUSER provisions, they argued,\\n\\nmirror the IDEA and, like that statute, establish a single statute\\n\\nof limitations, not a statute of limitations and a \\\"look-back\\n\\nterm.\\\" Rejecting MDOE and RSU 72's reading as foreclosed by Ms.\\n\\nS. I, the district court agreed with Ms. S.'s MAPA arguments and\\n\\n\\n\\n 1 The district court rejected MDOE's request to intervene\\non a second question: whether B.S. had received a FAPE in ninth\\nand tenth grades.\\n\\n\\n - 8 -\\n\\nheld that her claims were timely. RSU 72 and MDOE both appealed\\n\\nto this court.\\n\\n II.\\n\\n We address two threshold arguments before turning to the\\n\\ntiming limitations question.\\n\\nA. Law of the Case\\n\\n \\\"The law of the case doctrine 'posits that when a court\\n\\ndecides upon a rule of law, that decision should continue to govern\\n\\nthe same issues in subsequent stages in the same case.'\\\" United\\n\\nStates v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v.\\n\\nCalifornia, 460 U.S. 605, 618 (1983), supplemented by 466 U.S. 144\\n\\n(1984)). One form of the doctrine, known as the mandate rule,\\n\\nprohibits a trial court from reopening issues decided by an earlier\\n\\nappellate ruling in the same case. Id. According to the district\\n\\ncourt, Ms. S. I \\\"viewed the MUSER Look-Back Term and Filing\\n\\nLimitation rules as separate, 'unambiguous' provisions.\\\" Ms. S.,\\n\\n2017 WL 5565206, at *6. That \\\"construction of the MUSER rules in\\n\\nthis case, as the law of the case, is controlling,\\\" the district\\n\\ncourt held. Id. at *7. The application of the law of the case\\n\\ndoctrine is a question of law, which we review de novo. Buntin v.\\n\\nCity of Boston, 857 F.3d 69, 72 (1st Cir. 2017).\\n\\n Another form of the doctrine binds successor appellate\\n\\npanels to holdings of earlier appellate panels. Id. This branch\\n\\nof the doctrine is \\\"flexible,\\\" and has its exceptions. Ellis v.\\n\\n\\n\\n - 9 -\\n\\nUnited States, 313 F.3d 636, 646 (1st Cir. 2002); see also Bryan\\n\\nGarner et al., The Law of Judicial Precedent § 59 (2016) (detailing\\n\\nexceptions). The parties spar over whether Ms. S. I bars us from\\n\\nconsidering the theory that the two provisions of MUSER,\\n\\n§§ XVI.5.A(2) and XVI.13.E, contain a single statute of\\n\\nlimitations.\\n\\n For the law of the case doctrine to be a bar in either\\n\\nform, the issue must have been \\\"'actually considered and decided\\n\\nby the appellate court,' or a decision on the issue must be\\n\\n'necessarily inferred from the disposition on appeal.'\\\" Field v.\\n\\nMans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Commercial Union\\n\\nIns. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.\\n\\n1994)). In short, \\\"[p]rior holdings, as opposed to dicta, measure\\n\\nthe rule's reach.\\\" Garner et al., supra, § 54.\\n\\n Ms. S. I did not reach the issues involved here. The\\n\\ndistrict court concluded that our prior opinion had held that MUSER\\n\\ncontained both a look-back term and a filing limitation. The\\n\\nopinion did no such thing. The parties did not dispute and did\\n\\nnot brief the MUSER interpretive issue now before us. Instead,\\n\\nMs. S. I simply used the terminology the parties had used in the\\n\\nbriefs, which described § XVI.5.A(2) as the \\\"look-back term\\\" and\\n\\n§ XVI.13.E as the \\\"filing limitation.\\\" This reading was not, as\\n\\nM. S. calls it, a \\\"basic legal conclusion . . . central to [Ms. S.\\n\\nI's] analysis.\\\" It was presented only as \\\"[b]ackground.\\\" Ms. S.\\n\\n\\n - 10 -\\n\\nI, 829 F.3d at 100-02. And MUSER played no essential role,\\n\\nexplicit or implicit, in any of Ms. S. I's remand instructions to\\n\\nthe district court. The prior panel's first two remand\\n\\ninstructions both dealt only with state administrative law. See\\n\\nid. at 105-09. And the third ordered the district court to\\n\\n\\\"reevaluate the[] content\\\" of certain legislative materials.2 Id.\\n\\nat 112.\\n\\n Independently, even if a holding from Ms. S. I did\\n\\noverlap (and none do) with an issue we are now asked to consider,\\n\\nthe law of the case doctrine would not be a hurdle. An exception\\n\\nto the doctrine would justify our addressing the issues here:\\n\\nEverything the panel majority said in Ms. S. I was provisioned on\\n\\nthe \\\"insufficient\\\" record in that first appeal. Id. at 100.\\n\\nDecisions made on an \\\"inadequate record or . . . designed to be\\n\\npreliminary or tentative\\\" are excepted from the law of the case\\n\\n\\n\\n\\n 2 In guiding the district court's use of legislative\\nevidence, Ms. S. I did remark on MUSER. Ms. S. had argued that\\ncourts can never look at legislative intent in evaluating MAPA\\ncompliance, so we noted that \\\"[o]rdinarily, the Law Court does not\\nlook beyond language approved by the Legislature to determine the\\nLegislature's intent where, as here, the language is unambiguous.\\\"\\nMs. S. I, 829 F.3d at 110. This was not a holding that MUSER\\nunambiguously contains two separate timing requirements. Our\\ndirective to the district court was evidence-specific and\\nemphatically was not that legislative intent is irrelevant because\\nof MUSER's clarity. See id at 110-12. Further, what we found\\nclear was circumscribed: that the proposed version of § XVI.13.E\\nsaid \\\"four,\\\" not \\\"two.\\\" Id. at 110.\\n\\n\\n - 11 -\\n\\ndoctrine. Ellis, 313 F.3d at 647.3 In sum, the law of the case\\n\\ndoctrine does not bar consideration of the theory that MUSER has\\n\\none statute of limitations mirroring the IDEA's. The district\\n\\ncourt erred.\\n\\nB. Waiver\\n\\n We must deal with one more objection. Ms. S. contends\\n\\nthat the doctrine of waiver prohibits RSU 72 from arguing that\\n\\nMUSER has a single statute of limitations because RSU 72 did not\\n\\ndo so in its briefing in Ms. S. I.4 RSU 72 was the appellee, not\\n\\nthe appellant, in Ms. S. I. While \\\"an appellee might in some\\n\\nsituations be required to raise\\\" an alternative argument\\n\\nsupporting affirmance \\\"in its appellate briefs\\\" to preserve that\\n\\nargument for later appeals, this court found no waiver of such an\\n\\nargument in Field v. Mans. See 157 F.3d at 41-42; see also Field\\n\\n\\n\\n 3 Relevant changes in the law –- notably, other circuits'\\ndeterminations that the IDEA contains a single statute of\\nlimitations -- and in the facts -- including new administrative\\nand legislative evidence -- reinforce our conclusion that\\nreconsideration is proper. Cf. Nkihtaqmikon v. Impson, 585 F.3d\\n495, 498 (1st Cir. 2009) (\\\"We could revisit our own earlier\\ndecision if [the appellant] could show that controlling legal\\nauthority has changed dramatically; [or could] proffer significant\\nnew evidence, not earlier obtainable in the exercise of due\\ndiligence\\\" (internal quotation marks omitted)); Garner et al.,\\nsupra, § 59 (\\\"[I]n exceptional circumstances involving a dramatic\\nchange in controlling legal authority, a court may deviate from\\nthe law of the case.\\\").\\n 4 RSU 72 developed the argument that MUSER has a single\\nstatute of limitations mirroring the IDEA's on remand in the\\ndistrict court.\\n\\n\\n - 12 -\\n\\nv. Mans, 516 U.S. 59, 78-79 (1995) (Ginsburg, J., concurring)\\n\\n(suggesting that the argument was not waived and should be\\n\\nconsidered in future proceedings). In United States v. Moran, we\\n\\nalso found no waiver of claims of error which were not raised by\\n\\ndefendants as appellees in prior appeal of a\\n\\n\\\"judgment . . . entirely favorable to the appellee.\\\"5 393 F.3d at\\n\\n12.\\n\\n These cases reflect the general rule that \\\"the failure\\n\\nof an appellee to have raised all possible alternative grounds for\\n\\naffirming the district court's original decision, unlike an\\n\\nappellant's failure to raise all possible grounds for reversal,\\n\\nshould not operate as a waiver.\\\" Schering Corp. v. Ill.\\n\\nAntibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996);6 see also, e.g.,\\n\\n\\n\\n 5 Ms. S. leans heavily on Moran, but that case does not\\nsupport her position. Moran ultimately found no waiver by former\\nappellees, reasoning that they had not been required to raise in\\nthe first appeal \\\"irrelevant\\\" or \\\"redundant\\\" arguments. 393 F.3d\\nat 12 (quoting Field, 157 F.3d at 41-42).\\n 6 Ms. S. embraces Schering Corp., 89 F.3d at 358-59, but\\nit hurts rather than helps her. The Seventh Circuit found waiver\\nby a former appellee in circumstances entirely unlike these. The\\ncourt found waiver of a challenge, omitted in the first appeal, to\\na trial court's ruling excluding evidence supporting affirmance.\\nSee id. In the second appeal, the former appellee sought to reopen\\nthe previous ruling based on \\\"newly discovered evidence\\\" -- i.e.,\\nthe evidence excluded by the district court and not raised in the\\nfirst appeal. Id. at 359. Schering explicitly distinguished that\\nsituation from the one we face, in which \\\"an alternative ground\\nfor affirmance [was omitted] in the previous round\\\" by appellee\\nand no waiver of that argument would be found on subsequent appeal.\\nId. at 358.\\n\\n\\n - 13 -\\n\\nEichorn v. AT&T Corp., 484 F.3d 644, 657–58 (3d Cir. 2007) (\\\"As\\n\\n[appellees in the previous appeal], [defendants] were not required\\n\\nto raise all possible alternative grounds for affirmance to avoid\\n\\nwaiving those grounds.\\\"); Indep. Park Apartments v. United States,\\n\\n449 F.3d 1235, 1240 (Fed. Cir.), decision clarified on reh'g, 465\\n\\nF.3d 1308 (Fed. Cir. 2006) (\\\"As appellee, the government was not\\n\\nrequired to raise all possible alternative grounds for affirmance\\n\\nin order to avoid waiving any of those grounds.\\\"); Crocker v.\\n\\nPiedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (finding\\n\\nno waiver of issue omitted in prior appeal by then-appellee).\\n\\n The differing roles of appellees and appellants in\\n\\nframing the issues and in presenting arguments justifies differing\\n\\nwaiver rules on subsequent appeal. See Crocker, 49 F.3d at 741\\n\\n(weighing appellees' \\\"procedural disadvantage\\\"). This\\n\\ndifferentiation also makes practical sense: application of the\\n\\nwaiver rule to former appellees' omitted arguments would create\\n\\n\\\"judicial diseconomies.\\\" Id. at 741 (emphasis omitted); see also\\n\\nField, 157 F.3d at 41-42. It would fuel a multiplication of\\n\\narguments by appellees, even if \\\"entirely redundant.\\\" Field, 157\\n\\nF.3d at 42; see also Crocker, 49 F.3d at 740 (\\\"[F]orcing appellees\\n\\nto put forth every conceivable ground for affirmance might increase\\n\\nthe complexity and scope of appeals.\\\"). And it would incentivize\\n\\n\\\"dubious cross-appeal[s]\\\" by appellees to fully air their\\n\\n\\n\\n\\n - 14 -\\n\\nalternative grounds. Field, 157 F.3d at 41-42; see also Crocker,\\n\\n49 F.3d at 741.\\n\\n Whether application of this general rule is justified\\n\\n\\\"depends on the particular facts\\\" of the case. Field, 157 F.3d at\\n\\n41. And the facts do not support a finding of waiver in RSU 72's\\n\\nappeal. Ms. S., as appellant, not RSU 72, as appellee, \\\"defined\\n\\nthe battleground on the first appeal.\\\" Crocker, 49 F.3d at 740.\\n\\nHer briefing adopted the look-back term and filing limitation\\n\\nframework. To be sure, RSU 72 had an opportunity to advance a\\n\\none-statute-of-limitations reading in its response brief in Ms. S.\\n\\nI, as the basis for an alternative ground on which it should\\n\\nprevail. But it would have been difficult, if not impossible, for\\n\\nRSU 72's response brief to both defend the district court's\\n\\ndecision and to present, as the basis for an alternative ground,\\n\\na reworking of the interpretative framework assumed by the district\\n\\ncourt. And, had RSU 72 done this, it would not have had a chance\\n\\nto answer Ms. S.'s reply brief.\\n\\n Further, as Ms. S. has conceded, the argument does not\\n\\napply to MDOE because MDOE was not a party to the first appeal.\\n\\nMDOE, like RSU 72, reads MUSER to contain a single statute of\\n\\nlimitations, and has strongly urged us to so hold. As MDOE and\\n\\nRSU 72 argue, the issue at hand is one of \\\"public concern\\\" --\\n\\ntimelines for IDEA due process hearings affect children, parents,\\n\\nschool districts, states, and taxpayers. Nat'l Ass'n of Soc.\\n\\n\\n - 15 -\\n\\nWorkers v. Harwood, 69 F.3d 622, 629 (1st Cir. 1995). There is a\\n\\nstrong public interest in a clear and correct ruling on the purely\\n\\nlegal question of how to read Maine's statute of limitations for\\n\\nIDEA due process hearings. See id. at 627-29 (finding no waiver\\n\\nof publicly important and compelling legal argument); Sindi v. El-\\n\\nMoslimany, 896 F.3d 1, 28 (1st Cir. 2018) (same).\\n\\nC. MUSER's Statute of Limitations\\n\\n 1. Interpreting the Regulation\\n\\n We hold that Maine intended to adopt a two-year\\n\\nlimitations period that mirrors the IDEA's timing provisions. This\\n\\nintent is evident from the language of the provisions: as noted,\\n\\nMUSER § XVI.5.A(2) mirrors 20 U.S.C. § 1415(b)(6)(B) and MUSER\\n\\n§ XVI.13.E mirrors 20 U.S.C. § 1414(f)(C)(3). Further, at § I,\\n\\nMUSER states, \\\"[t]hroughout this regulation the Department has\\n\\nreflected the federal statute and regulatory requirements in non-\\n\\nitalicized text,\\\" while, \\\"State requirements are in italicized\\n\\ntext.\\\" MUSER § I. The provisions that concern us contain no\\n\\nrelevant italics; they vary little from the \\\"federal statute and\\n\\nregulatory requirements.\\\"7\\n\\n So, we turn to the IDEA to determine how to read MUSER.\\n\\nThe federal Department of Education stated in 2016 that \\\"[t]he\\n\\n\\n\\n 7 Only a state-specific acronym -- \\\"SAU,\\\" or school\\nadministrative unit -- is italicized in the provisions. See MUSER\\n§§ XVI.5.A(2), XVI.13.E.\\n\\n\\n - 16 -\\n\\nstatute of limitations in section [1415(b)(6)(B)] is the same as\\n\\nthe statute of limitations in section [1415(f)(3)(C)].\\\"\\n\\nAssistance to States for the Education of Children with\\n\\nDisabilities and Preschool Grants for Children With Disabilities,\\n\\n71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006). We hold that the\\n\\nIDEA has a single two-year statute of limitations regulating the\\n\\namount of time to file a complaint after the reasonable discovery\\n\\ndate. In holding this, we join the Third and Ninth Circuits. See\\n\\nG.L., 802 F.3d at 604-05; Avila, 852 F.3d at 937.\\n\\n When Congress writes a statute of limitations, it\\n\\nchooses a rule from among several types. See, e.g., TRW Inc. v.\\n\\nAndrews, 534 U.S. 19, 32 (2001) (discussing various types). One\\n\\noption is the occurrence rule -- that is, counting from the date\\n\\nof the violation. See G.L., 802 F.3d at 613. Another option is\\n\\nthe discovery rule, which counts from the date of discovery. See\\n\\nid. Section 1415(b)(6)(B) defies categorization: in counting from\\n\\nthe injury date to the reasonable discovery date, it appears to be\\n\\na hybrid of these two rules. Like our sister circuits, we doubt\\n\\nthat Congress intended to invent a new type of timing limit or to\\n\\nsneak a \\\"remedy cap\\\" into § 1415(b)(6)(B). See G.L., 802 F.3d at\\n\\n613-15; Avila, 852 F.3d at 941-42. Indeed, the Third Circuit\\n\\ntraced the hints of the occurrence rule in § 1415(b)(6)(B) to a\\n\\ndrafting error during the reconciliation of the House and Senate\\n\\nversions of the 2004 IDEA reauthorization. G.L., 802 F.3d at 622-\\n\\n\\n - 17 -\\n\\n23 (explaining that the House version had used the occurrence rule\\n\\nand identifying errors in conforming that version to the Senate's).\\n\\nSection 1415(f)(3)(C), on the other hand, is clear: it establishes\\n\\na discovery rule. As a result, in the IDEA, a single \\\"discovery\\n\\nrule controls.\\\" G.L., 802 F.3d at 613.\\n\\n Ms. S. disputes that MUSER can also be read to establish\\n\\na two-year statute of limitations but not a look-back term. She\\n\\npoints primarily to MUSER's language. But the reference to the\\n\\ndate of the \\\"alleged action\\\" in the text of § XVI.5.A(2) is a\\n\\nreplication of the IDEA's drafting mistake, not evidence that Maine\\n\\nintended to set up two separate state standards. Unconvinced by\\n\\nMs. S.'s textual arguments, we conclude that MUSER follows the\\n\\nIDEA in establishing a single statute of limitations that runs\\n\\nfrom the reasonable discovery date to the filing date.\\n\\n In addition to being contrary to the state's intent in\\n\\ndesigning MUSER, Ms. S.'s reading could put MUSER in active\\n\\nconflict with federal law. Because \\\"§ 1415(b)(6)(B) is simply an\\n\\ninartful attempt to mirror § 1415(f)(3)(C)'s two-year statute of\\n\\nlimitations,\\\" G.L., 802 F.3d at 604-05; see also Avila, 852 F.3d\\n\\nat 942, the IDEA likely authorizes states to enact a single state-\\n\\nspecific statute of limitations, not a look-back term and a filing\\n\\nlimitation. In fact, most states that have chosen to enact a\\n\\nstate-specific \\\"explicit time limitation,\\\" see G.L., 802 F.3d at\\n\\n617, including Massachusetts, see Michelle K. v. Pentucket Reg'l\\n\\n\\n - 18 -\\n\\nSch. Dist., 79 F. Supp. 3d 361, 372-73 (D. Mass. 2015) (discussing\\n\\nBSEA Hearing Rule I(C)), and New Hampshire, see N.H. Rev. Stat.\\n\\nAnn. § 186–C:16–b, I; see also Pass v. Rollinsford Sch. Dist., 928\\n\\nF. Supp. 2d 349, 364 (D.N.H. 2013), have done just that: enacted\\n\\na single statute of limitations. Ms. S. points to no states that\\n\\nhave adopted a look-back term and a filing limitation.\\n\\n 2. Application to Ms. S.'s Claims\\n\\n It follows that Ms. S.'s claims about the 2009-2010 and\\n\\n2010-2011 school years were untimely when filed in May 2013. As\\n\\nMs. S. concedes, these claims alleged violations that Ms. S. knew\\n\\nor should have known about during school years 2009-2010 and 2010-\\n\\n2011. The claims were more than two years old when filed, and the\\n\\nversion of MUSER in force in May 2013 stated that the statute of\\n\\nlimitations was two years. MUSER §§ XVI.5.A(2), XVI.13.E. The\\n\\ndistrict court erred in ruling that Ms. S.'s claims were timely.\\n\\n We have no reason to reach the state law issue of whether\\n\\nthe MDOE complied with MAPA in promulgating the 2010 amendments to\\n\\nMUSER. It does not affect the outcome of the case. If there were\\n\\nno state law procedural errors during the rulemaking or if the\\n\\nerrors were insubstantial or harmless, then MUSER's statute of\\n\\nlimitations was validly set at two years as a matter of state\\n\\nprocedural law. See 5 Me. Rev. Stat. Ann. § 8058(1). Likewise,\\n\\nif procedural errors were to render the change from four to two at\\n\\n§ XVI.13.E void under MAPA, then we would conclude that Maine\\n\\n\\n - 19 -\\n\\nlacked a valid \\\"explicit time limitation\\\" and so the federal\\n\\ndefault, also set at two years, would apply. See 20 U.S.C.\\n\\n§§ 1415(b)(6)(B); 1415(f)(3)(C) (emphasis added).\\n\\n The dissent concedes that the IDEA sets a single time\\n\\nlimitations period for due process hearings; that MUSER \\\"is\\n\\nintended to track the federal law\\\"; and (as does Ms. S.) that the\\n\\ntime limit at § XVI.5.A(2) was validly changed to two years during\\n\\nthe 2010 rulemaking. Nonetheless, the dissent rejects our\\n\\nconclusion that, if there were invalidating procedural errors, the\\n\\nfederal default would step in. It protests that we should not\\n\\napply the federal default because the IDEA does not require states\\n\\nto adopt the federal limitations period. That is true, but it is\\n\\nbeside the point here. MDOE has consistently taken the position\\n\\nthat MUSER's timing provisions parallel the IDEA's in structure.\\n\\nSignificantly, during the 2010 rulemaking, MDOE's concise summary\\n\\nin the rulemaking Notice explained that \\\"the statute of limitations\\n\\nfor due process hearings will be changed to the federal standard\\n\\nof two years.\\\" That is, MDOE has always viewed MUSER's statute of\\n\\nlimitations as tracking the federal law's.8 The IDEA only provides\\n\\n\\n 8 Although the dissent agrees that MUSER tracks the\\nfederal law, it suggests that MDOE has not always held this view.\\nIt embraces Ms. S.'s unsupported assertion that a 2011 decision by\\nan MDOE hearing officer, which, in dicta, described § XVI.5.A(2)\\nand § XVI.13.E as distinct, represented the accepted understanding\\namong MDOE hearing officers. But MDOE emphasizes that Ms. S. has\\npointed to no other, similar statements by hearing officers. And\\neven if she had, MDOE, whose hearing officers are independent, cf.\\n\\n\\n - 20 -\\n\\nfor one statute of limitations,9 so it follows that if the 2010\\n\\nrulemaking somehow left Maine with two different limitations\\n\\nperiods, the state lacked its intended \\\"explicit time limitation,\\\"\\n\\nand the federal default should govern.\\n\\n In short, a two-year statute of limitations was in force\\n\\nin 2013 when MS. S. filed her due process hearing request and that\\n\\nrequest was therefore untimely.\\n\\nD. Specific Misrepresentation Exception\\n\\n Ms. S. finally argues that, even if a two-year statute\\n\\nof limitations applies, her claims should be allowed under the\\n\\nspecific misrepresentation exception. Ms. S. claims that she\\n\\nfailed to file earlier because of statements by the district that\\n\\nB.S.'s academic performance made him ineligible for IDEA services.\\n\\nAs Maine has implemented the IDEA, academic as well as \\\"functional\\\"\\n\\nperformance determine eligibility. MUSER § II.10-II.11; see also\\n\\nMr. I v. MSAD No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (describing\\n\\n\\n\\n\\nMUSER § XVI.4.A(4)(c) (requiring the state to enforce due process\\nhearing decisions), says that it has never adopted the view\\nexpressed in the hearing officer's 2011 dicta. MDOE is best\\npositioned to state its views.\\n 9 Contrary to the dissent's suggestion, it is immaterial\\nto this case that the Third Circuit's decision in G.L. holding\\nthat the IDEA contains a single time limitation for due process\\nhearings post-dated the 2010 rulemaking. G.L. held, as we do\\ntoday, that the IDEA has contained a single statute of limitations\\nsince the relevant provisions' enactment in 2004.\\n\\n\\n - 21 -\\n\\nhow federal and state regulations interact to define IDEA-eligible\\n\\ndisabilities).\\n\\n The district court, in its first decision, determined\\n\\nthat Ms. S. did not qualify for the exception because no\\n\\nmisrepresentations had occurred. We declined to consider the issue\\n\\nthen. Ms. S. I, 829 F.3d at 113. Ms. S. does not cross appeal it\\n\\nhere but raises it as an alternative ground for relief.\\n\\n The record reveals no misrepresentations –- intentional\\n\\nor otherwise. The school district never told Ms. S. that academic\\n\\nperformance alone determined eligibility. Rather, district\\n\\nemployees, as the record and the district court's first decision\\n\\nshow, discussed B.S.'s academic performance alongside other\\n\\nfactors, like his social, behavioral, and emotional development.\\n\\nWe hold that Ms. S.'s claims regarding B.S.'s ninth and tenth grade\\n\\nyears are not allowed under the specific misrepresentation\\n\\nexception to MUSER's statute of limitations.\\n\\n III.\\n\\n We reverse and remand to the district court with\\n\\ninstructions to dismiss with prejudice.\\n\\n\\n\\n -Dissenting Opinion Follows-\\n\\n\\n\\n\\n - 22 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368639/\", \"author_raw\": \"LYNCH, Circuit Judge\"}, {\"author\": \"LIPEZ, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"LIPEZ, Circuit Judge, dissenting. From the vantage\\n\\npoint of hindsight, my colleagues conclude that a clarifying\\n\\ninterpretation of federal law rendered for the first time in 2015\\n\\ncleanses an improper state administrative process that occurred\\n\\nfive years earlier. I cannot agree that we should ignore the flaws\\n\\nin the rulemaking process and disregard the purpose of the bypassed\\n\\nprocedures: to ensure that the public and Legislature understand,\\n\\nand have an opportunity to comment on, important changes in the\\n\\nlaw. In my view, the procedural irregularity requires us to affirm\\n\\nthe district court's conclusion that a four-year filing deadline\\n\\napplies to Ms. S.'s claims. Accordingly, I respectfully dissent.\\n\\n I.\\n\\n The statute-of-limitations question at the heart of this\\n\\nappeal has perplexed both the parties and the courts from the\\n\\noutset of the case. In the prior round of decisions, the district\\n\\ncourt and our panel were challenged by an inadequate record\\n\\nand -- as it turns out -- the parties' incorrect assumptions about\\n\\nthe substance of the two provisions of the federal Individuals\\n\\nwith Disabilities Education Act (\\\"IDEA\\\") that govern the timeline\\n\\nfor requesting a hearing on the claimed denial of a \\\"free\\n\\nappropriate public education\\\" (\\\"FAPE\\\"). See Ms. S. v. Reg'l Sch.\\n\\nUnit 72, 829 F.3d 95 (1st Cir. 2016) (\\\"Ms. S. I\\\"); 20 U.S.C.\\n\\n§§ 1415(b)(6)(B), 1415(f)(3)(C). To some extent, those problems\\n\\nhave now been addressed. With respect to the IDEA, the thoughtful\\n\\n\\n - 23 -\\n\\nanalysis by the Third Circuit in G.L. v. Ligonier Valley School\\n\\nDistrict Authority, 802 F.3d 601, 611-26 (3d Cir. 2015),\\n\\npersuasively demonstrates that the IDEA has a single two-year\\n\\nstatute of limitations. Accord Avila v. Spokane Sch. Dist. 81,\\n\\n852 F.3d 936, 940-44 (9th Cir. 2017). As for the Maine\\n\\nadministrative process, the parties on remand \\\"compiled and\\n\\nsubmitted a more complete record of the rulemaking proceedings\\\"\\n\\nthat underlie the state law question. Ms. S. v. Reg'l Sch. Unit\\n\\n72, No. 2:13-cv-453-JDL, 2017 WL 5565206, at *5 (D. Me. Nov. 20,\\n\\n2017) (\\\"Ms. S. II\\\").\\n\\n The new light shed by the recent IDEA interpretation and\\n\\nthe expanded state administrative record does not, however,\\n\\njustify the outcome reached by my colleagues. Indeed, as I shall\\n\\nexplain, it is now even more apparent that the limitations\\n\\nprovisions were unclear for a substantial time. The lack of\\n\\nclarity contributed to the improper method by which the Maine\\n\\nDepartment of Education (\\\"MDOE\\\" or \\\"the Department\\\") attempted to\\n\\nchange the filing deadline under Maine's Unified Special Education\\n\\nRegulation (\\\"MUSER\\\") for claims asserting denial of a FAPE. That\\n\\nflawed attempt should prevent us from finding Ms. S.'s claims time-\\n\\nbarred.10\\n\\n\\n 10\\n Because I conclude that, notwithstanding the new arguments\\noffered by the MDOE, Ms. S.'s claims are not barred by a regulatory\\nfiling deadline, I do not address the issues of waiver or law of\\nthe case.\\n\\n\\n - 24 -\\n\\nA. The Timeline for FAPE Challenges\\n\\n Like the majority, I agree with the fully elaborated\\n\\nconclusion of the Third Circuit that the two IDEA provisions\\n\\npertinent to this case set a single limitations period for\\n\\nrequesting a FAPE due process hearing. See 20 U.S.C.\\n\\n§ 1415(b)(6)(B), (f)(3)(C). I also agree that the equivalent\\n\\nprovisions in Maine's analogue to the IDEA -- MUSER -- are intended\\n\\nto track the federal law. See Me. Code R. 05-071, Ch. 101 (\\\"MUSER\\\")\\n\\n§§ XVI.5.A(2), XVI.13.E.11 In other words, contrary to the\\n\\nposition accepted by both parties in the prior appeal, neither the\\n\\nIDEA nor MUSER has a separate \\\"lookback\\\" provision that limits the\\n\\nremedy for a violation of the FAPE requirement to the two years\\n\\npreceding the reasonable discovery date for the violation. See\\n\\nG.L., 802 F.3d at 604-05 (observing that \\\"§ 1415(b)(6)(B) is simply\\n\\nan inartful attempt to mirror § 1415(f)(3)(C)'s two-year statute\\n\\nof limitations\\\"). Rather, the remedial period has no fixed limit,\\n\\n\\n\\n 11\\n Section XVI.5.A(2) largely incorporates the language of 20\\nU.S.C. § 1415(b)(6)(B) and currently provides that a \\\"due process\\nhearing request must allege a violation that occurred not more\\nthan two years before the date the parent or public agency knew or\\nshould have known about the alleged action that forms the basis of\\nthe due process hearing request.\\\"\\n Section XVI.13.E closely tracks the language of 20 U.S.C.\\n§ 1415(f)(3)(C) and currently provides that \\\"[a] parent or\\nagency must request an impartial hearing on their due process\\nhearing request within two years of the date the parent or agency\\nknew or should have known about the alleged action that forms the\\nbasis of the due process hearing request.\\\"\\n\\n\\n - 25 -\\n\\nbut the plaintiff must file a FAPE challenge within two years of\\n\\nthe date the alleged violation was, or reasonably should have been,\\n\\ndiscovered. See id. at 616, 620-21.\\n\\n Under the IDEA, the filing deadline has been two years\\n\\nsince Congress first adopted a limitations period in 2004. Id. at\\n\\n608-09. Although the text of the equivalent MUSER provisions\\n\\nlargely mirrors the federal law, their stated timelines have not\\n\\nalways aligned.12 When the Maine Legislature first enacted\\n\\nlimitations provisions in MUSER in 2007, it departed from federal\\n\\nlaw by providing for four-year time periods.13 In 2009, however,\\n\\nthe MDOE initiated the process for amending several MUSER\\n\\nprovisions, including changing the \\\"statute of limitations for due\\n\\nprocess hearings\\\" to conform to \\\"the federal standard of two\\n\\nyears.\\\" Notice of Agency Rule-making Proposal, Nov. 24, 2009.\\n\\n In the notices of the proposed amendments submitted by\\n\\nthe MDOE to the Secretary of State, as required by the Maine\\n\\nAdministrative Procedure Act (\\\"MAPA\\\"), see Me. Rev. Stat. Ann.\\n\\ntit. 5, § 8053, the Department stated that the change in timing\\n\\n\\n 12Although the IDEA and its associated regulations provide\\nthe default provisions governing due process hearings, states are\\npermitted to vary some requirements -- including, specifically,\\nthe time limitations at issue in this case. See 20 U.S.C.\\n§ 1415(b)(6)(B), (f)(3)(C).\\n 13Technically, MUSER initially provided for a four-year\\nperiod in one of the two provisions at issue and a two-year period\\nfor the other, but the latter was \\\"corrected\\\" to four years in\\n2008. That change will be discussed below as part of my analysis.\\n\\n\\n - 26 -\\n\\nwas being proposed \\\"pursuant to [its] intent to not exceed minimum\\n\\nfederal requirements and to address cost containment.\\\"14 The\\n\\nmaterials submitted with the notices are particularly significant\\n\\nto this case. I reproduce below the district court's clear and\\n\\nconcise summary of the documents, noting that the district court\\n\\nused the descriptive terminology for the two limitations\\n\\nprovisions (\\\"look-back term, for § XVI.5.A(2), and \\\"filing\\n\\nlimitation\\\" or \\\"filing deadline,\\\" for § XVI.13.E, that the courts\\n\\nand parties previously used to distinguish them:\\n\\n Each notice was accompanied by a version of\\n MUSER with strikeouts and underlines\\n indicating the proposed changes. In the\\n proposed changes, the Look-Back Term's\\n strikeouts and underlines indicated a change\\n from four years to two, while the filing\\n deadline provision was untouched.\\n Additionally, MUSER contains an Appendix with\\n a document entitled \\\"Notice of Procedural\\n Safeguards,\\\" which is used to instruct the\\n public about the rights guaranteed under\\n MUSER, and it was also revised to reflect the\\n proposed changes. The Notice of Procedural\\n Safeguards contained strikeouts and\\n underlines that corresponded to the proposed\\n change to the Look-Back Term from four years\\n to two years:\\n\\n The due process hearing request must\\n allege a violation whether a State or\\n federal cause of action under the IDEA\\n\\n 14\\n Two notices were submitted because the MDOE was proposing\\nboth an emergency rule change through an accelerated process and\\na permanent rule change. The proposals were identical in substance\\nbut subject to different procedures. See Ms. S. I, 829 F.3d at\\n105-06. The Secretary of State is charged with publishing notice\\nof the date of the public hearing on a proposed rule. See Me.\\nRev. Stat. Ann. tit. 5, § 8053.\\n\\n\\n - 27 -\\n\\n that happened not more than four two\\n years before you or the SAU [school\\n administrative unit] knew or should\\n have known about the alleged action\\n that forms the basis of the due process\\n hearing request.\\n\\n The Filing Limitation was addressed in the\\n \\\"Due Process Hearing Procedure\\\" section of\\n the Notice of Procedural Safeguards. It\\n indicated two non-substantive corrections\\n and did not show any change to the four-\\n year Filing Limitation:\\n\\n You or the SAU must request an\\n impartial hearing on a due process\\n hearing request within—four years of\\n the date you or the SAU knew or should\\n have known about the issue addressed in\\n the hearing request.\\n\\n Thus, both the MUSER Filing Limitation and the\\n explanation of that rule in the Notice of\\n Procedural Safeguards did not indicate any\\n changes to the substance of the four-year\\n Filing Limitation.\\n\\nMs. S. II, 2017 WL 5565206, at *3 (footnote omitted) (citations\\n\\nomitted); see also Ms. S. I, 829 F.3d at 103.\\n\\n The inconsistent treatment of the two provisions also\\n\\nappeared on the form used to obtain comments from members of the\\n\\npublic. The comments sheet characterized the proposed change in\\n\\ntiming as follows: \\\"§XVI(5)(A)(2) The statute of limitations for\\n\\ndue process hearings will be changed to the federal standard of\\n\\ntwo years, Page 161.\\\" Ms. S. II, No. 2:13-cv-00453-JDL (D. Me.),\\n\\nDkt. No. 71-1, at 12 (emphasis in comments document); see also Ms.\\n\\nS. II, 2017 WL 5565206, at *3. Page 161 of the provisional adoption\\n\\n\\n\\n - 28 -\\n\\nproposal displayed the change to two years for § XVI(5)(A)(2),\\n\\ni.e., the provision that came to be known as the \\\"lookback term.\\\"\\n\\nSee id.; see also Joint App'x at 175. Meanwhile, § XVI.13.E --\\n\\nthe filing deadline -- appeared in the same document on page 171,\\n\\nand it remained unchanged at four years. See 2017 WL 5565206, at\\n\\n*3; Joint App'x at 177.\\n\\n The Maine Legislature approved the MUSER rule changes in\\n\\n2010, having reviewed only versions of the proposed revisions that\\n\\nretained the four-year filing limitation in § XVI.13.E. See Ms.\\n\\nS. I, 829 F.3d at 104. Then, without any process to alert either\\n\\nthe public or the Legislature that it was departing from the text\\n\\nshown in the provisional adoption document, the MDOE adopted a\\n\\nfinal amended version of MUSER in which the timing in § XVI.13.E\\n\\nwas reduced to two years. See id. Appellants describe this action\\n\\nas a \\\"correction\\\" that was made to remedy \\\"a clerical oversight.\\\"\\n\\nDOE Br. at 5, 11. A proposal to increase the timeframe for due\\n\\nprocess hearings was rejected the following year, see Ms. S. II,\\n\\nNo. 2:13-cv-00453-JDL (D. Me.), Dkt. 71-13, at 33-36, and both\\n\\n§ XVI(5)(A)(2) and § XVI.13.E thus currently contain two-year\\n\\nperiods.\\n\\nB. MUSER's Timing Provisions in Practice\\n\\n The question at the core of this appeal is whether the\\n\\nMDOE's adoption of a two-year filing deadline in § XVI.13.E was a\\n\\npermissible correction of an oversight or a substantive change\\n\\n\\n - 29 -\\n\\nthat required adherence to formal administrative procedures. Put\\n\\nanother way, is the two-year limitations period currently stated\\n\\nin § XVI.13.E invalid because it was enacted unlawfully?\\n\\n Although my colleagues purport not to reach the \\\"issue\\n\\nof whether the MDOE complied with MAPA in promulgating the 2010\\n\\namendments to MUSER,\\\" they implicitly accept the oversight\\n\\nrationale. They conclude that the MDOE intended from the outset\\n\\nof the 2009-2010 amendment process to revise both MUSER provisions\\n\\nto reflect a single two-year deadline for due process hearing\\n\\nrequests. Consistency was necessarily the objective, they\\n\\nsuggest, because MUSER -- like the IDEA -- contains one limitations\\n\\nperiod that applies to both provisions. Their position is that,\\n\\nbecause the two provisions operate in tandem, approval of the two-\\n\\nyear period in § XVI.5.A(2) (the \\\"lookback term\\\") also constituted\\n\\napproval of the same timeframe for § XVI.13.E (the \\\"filing\\n\\ndeadline\\\"). Accordingly, the MDOE's final version of MUSER in\\n\\n2010 effected the Legislature's intent and corrected a minor\\n\\ndrafting error.\\n\\n The primary problem with the majority's conclusion is\\n\\nthe failure to account for the uncertainty that long surrounded\\n\\nthe two distinctly worded provisions in both the IDEA and MUSER.\\n\\nEven if my colleagues are correct that the MDOE intended in 2009-\\n\\n2010 to change both timing provisions -- despite all documentary\\n\\nevidence to the contrary -- that intention would not cure the\\n\\n\\n - 30 -\\n\\nproblems with the rule-making process. Inexplicably, the majority\\n\\ngives no consideration at all to what the public and Legislature\\n\\nwould have reasonably understood in 2009 about the meaning of each\\n\\nprovision. Yet, as the Third Circuit highlighted in unraveling\\n\\nthe history of the two IDEA sections, the provisions' differing\\n\\nlanguage had long posed interpretive difficulties. See G.L., 802\\n\\nF.3d 610-12.\\n\\n The sequentially first provision -- i.e., the so-called\\n\\nlookback provision -- allows a remedy based on actions that\\n\\noccurred \\\"not more than two years before the date the parent . . .\\n\\nknew or should have known about\\\" the challenged action. MUSER\\n\\n§ XVI.5.A(2) (emphasis added); see also 20 U.S.C. § 1415(b)(6)(B).\\n\\nMeanwhile, the second provision sets the filing deadline (for\\n\\nrequesting a hearing) at two years after the discovery date, see\\n\\nMUSER § XVI.13.E; 20 U.S.C. § 1415(f)(3)(C). As the Third Circuit\\n\\nnoted, \\\"[t]he differences in the language of these provisions and\\n\\nthe fact that they appear to move in opposite directions from the\\n\\nreasonable discovery date, has given rise to confusion.\\\" G.L.,\\n\\n802 F.3d at 610. Indeed, in determining that the two IDEA\\n\\nprovisions \\\"reflect the same statute of limitations,\\\" id. at 612\\n\\n(internal quotation marks omitted), the Third Circuit acknowledged\\n\\nthat \\\"applying the plain language of the text would force us to\\n\\ngive § 1415(b)(6)(B) a meaning that 'turns out to be untenable in\\n\\nlight of the statute as a whole.'\\\" Id. at 612 (quoting King v.\\n\\n\\n - 31 -\\n\\nBurwell, 135 S. Ct. 2480, 2495 (2015)). In other words, on their\\n\\nface, the two provisions do not align, and only the court's close\\n\\nexamination of context and legislative history revealed their\\n\\nconformity. See id. at 611-12.\\n\\n In Maine, the same discrepancy in MUSER's language led\\n\\nto the notion of two independent timeframes: the \\\"lookback period\\\"\\n\\nof § XVI.5.A(2) and the \\\"filing deadline\\\" of § XVI.13.E. The wide\\n\\nacceptance of that nomenclature -- and the substantive distinction\\n\\nit denotes -- informed the first round of proceedings in this case.\\n\\nAs the MDOE observes, the two experienced special education\\n\\nattorneys who represented the opposing parties treated those terms\\n\\nas \\\"commonly used and ha[ving] distinctly different meanings.\\\"\\n\\nMDOE Br. at 24. In addition, there is no challenge in the record\\n\\nto Ms. S.'s representation that attorneys in the field in Maine\\n\\nhad consistently treated the two provisions as distinct at least\\n\\nsince an MDOE hearing officer adopted that construction in 2011.\\n\\nSee Ms. S. II, No. 2:13-cv-00453-JDL (D. Me.), Dkt. 22-5, at 9\\n\\n(Hearing Officer's Order on Application of Statute of Limitations,\\n\\nSept. 1, 2011); id. at 17 (referring to \\\"the IDEA's two year look-\\n\\nback provision\\\"). Nor have appellants rebutted Ms. S.'s assertion\\n\\nthat the 2011 interpretation was consistently followed thereafter\\n\\nby other Maine hearing officers. To the contrary, the school\\n\\ndistrict acknowledges that \\\"the dichotomy offered by the hearing\\n\\n\\n\\n\\n - 32 -\\n\\nofficer in 2011 [was] a reading that seemed relatively consistent\\n\\nwith some components of the language in question.\\\"\\n\\n The MDOE attempts both to discredit the hearing\\n\\nofficer's interpretation and to disclaim any responsibility for\\n\\nthe subsequent reliance on it by parties and other hearing\\n\\nofficers. The Department emphatically denies that it necessarily\\n\\nwas aware of the decision or had an obligation to correct the\\n\\nmistaken view of the law. These protestations defy common sense.\\n\\nThe possibility that the Department remained unaware for years of\\n\\nan \\\"incorrect\\\" interpretation of an important component of the\\n\\nstatutory scheme for which it was responsible strikes me as absurd.\\n\\nMoreover, even if the Department technically had no affirmative\\n\\nobligation to clarify the law, its failure to do so is inexplicable\\n\\nif, in fact, the MDOE always believed the MUSER timing provisions\\n\\nestablished a single limitations period.\\n\\n In any event, regardless of the MDOE's unspoken\\n\\nintention with respect to the MUSER amendments proposed in 2009,\\n\\nthe history makes plain that it was far from evident to\\n\\npractitioners and decisionmakers in the field -- i.e., the\\n\\n\\\"experts\\\" charged with day-to-day advocacy or dispute resolution\\n\\ninvolving the IDEA and MUSER -- that the two provisions stated the\\n\\nsame limitations period. Indeed, at least by 2011, they had the\\n\\nopposite understanding.\\n\\n\\n\\n\\n - 33 -\\n\\nC. The Need to Fulfill MAPA Requirements\\n\\n The interpretive confusion documented above has great\\n\\nsignificance. It means that the MDOE was not free to change the\\n\\ntiming in § XVI.13.E (the \\\"filing deadline\\\") from four years to\\n\\ntwo years without engaging in the formal administrative process\\n\\napplicable to major substantive rule changes.15 That is so because,\\n\\ngiven the retention of \\\"four years\\\" in the proposed text of\\n\\n§ XVI.13.E disseminated throughout the 2009-2010 rulemaking\\n\\nproceedings, the public and Maine Legislature lacked the required\\n\\nclear notice that the MDOE was proposing a single two-year\\n\\nlimitations period. Indeed, the repeated presentation of four\\n\\nyears as the filing time limit would have bolstered the view that\\n\\nthe provisions contained independent timelines. Put another way,\\n\\nthe MDOE owed the public and the Legislature a clear statement of\\n\\nits intention to reduce by one-half the time allowed for seeking\\n\\na FAPE due process hearing.16 Instead, the Department effectively\\n\\n\\n\\n 15The process for adopting a \\\"major substantive rule\\\" -- such\\nas the changed filing limitation at issue here -- is described in\\ndetail in Ms. S. I. See 829 F.3d at 105-06.\\n 16 The MDOE acknowledges the importance of providing notice\\nto the public of changes in the limitations period. It points out\\nthat the Department could have adopted the emergency version of\\nthe rule without a comment period, but \\\"because the Department\\nrecognized that the parents of children with disabilities and their\\nadvocates would react strongly to what they viewed as a reduction\\nin their rights, the Department elected to provide a public hearing\\nand comment period on the emergency rule as well as the permanent\\nrule.\\\" MDOE Br. at 3 n.2.\\n\\n\\n - 34 -\\n\\ntold the public that the four-year deadline was to remain\\n\\nunchanged.\\n\\n The MDOE asserts that the comments submitted during the\\n\\n2009 administrative proceedings indicated that all concerned\\n\\nunderstood that the proposal to limit the \\\"statute of limitations\\\"\\n\\ncovered both provisions. The Department emphasizes that none of\\n\\nthe individuals who commented on the proposed amendments at public\\n\\nhearings held by the MDOE and the Legislature's Education Committee\\n\\nsuggested that there was more than one statute of limitations.\\n\\nHence, the Department posits, no one was misled by the flawed\\n\\nnotices and supplemental materials, and the errors in the\\n\\nadministrative process were therefore harmless.\\n\\n This effort to minimize the errors is both unpersuasive\\n\\nand unacceptable. The shorthand label \\\"statute of limitations\\\"\\n\\nmay reasonably be applied to a \\\"limitation\\\" on the remedial\\n\\nperiod.17 Moreover, the fact remains that every relevant document\\n\\n\\n\\n 17 As we observed in Ms. S. I:\\n\\n [T]he phrase \\\"statute of limitations\\\" is used\\n without definition by the MDOE in its public\\n notice statement, by the MDOE Commissioner in\\n her testimony to the Maine Legislature, by\\n many additional witnesses and advocates, and\\n by the Legislature itself. Both the filing\\n limitation and look-back term involve time\\n restrictions, and both periods were originally\\n four years while the parallel federal periods\\n are both two years. Hence, the \\\"statute of\\n limitations\\\" label could be used to describe\\n\\n\\n - 35 -\\n\\ndepicted a revision only to the provision that was treated\\n\\nthereafter as a limitation on the remedial period. Hence, there\\n\\nwas no reason to expect comments from the public on a different\\n\\nlimitations provision that ostensibly was not being changed. See\\n\\nMs. S. II, 2017 WL 5565206, at *9 (\\\"The absence of comments\\n\\nexplicitly addressing the Filing Limitation change from four years\\n\\nto two years is not surprising given that the proposed MUSER rules\\n\\ndid not describe such a change in the notice or in the Filing\\n\\nLimitation rule, nor did the proposal direct commenters to the\\n\\npage the Filing Limitation appeared on as it did with respect to\\n\\nthe Look-Back Term.\\\"). The MDOE's casual, unilateral change to\\n\\nsuch a significant element of the MUSER scheme was thus patently\\n\\nimproper.\\n\\n As well, the MDOE's contention that the inconsistency\\n\\nwas merely an oversight pushes against the bounds of plausibility.\\n\\nThe Notice of Procedural Safeguards prepared by the Department and\\n\\ndisseminated during the 2009-2010 proceedings specified two non-\\n\\nsubstantive corrections for § XVI.13.E (the \\\"filing deadline\\\"),\\n\\nbut it failed to show a change in the number of years. It is\\n\\ndifficult to see how a \\\"mistaken\\\" retention of the four-year\\n\\nlanguage could have escaped MDOE attention when the Department\\n\\n\\n the filing limitation, the look-back term, or\\n both.\\n\\n 829 F.3d at 109.\\n\\n\\n - 36 -\\n\\nmust have focused directly on the provision to make the non-\\n\\nsubstantive revisions. See Ms. S. II, 2017 WL 5565206, at *10 (\\\"A\\n\\nreader could logically conclude from the Notice of Procedural\\n\\nSafeguards that the drafters had looked at the provision,\\n\\nconsidered what changes were necessary, and decided to make only\\n\\nminor, non-substantive adjustments.\\\"). Hence, even if some\\n\\nindividuals within the Department viewed the two provisions to\\n\\nstate the same deadline, the drafting inconsistency is compelling\\n\\nevidence that there was no uniform understanding even within the\\n\\nMDOE. It is therefore unsurprising that practitioners in the field\\n\\nsubsequently accepted the hearing officer's assumption of two\\n\\nindependent timelines.\\n\\n To bolster its oversight claim, and in rejecting the\\n\\nneed for formal MAPA procedures, the MDOE points out that the same\\n\\ntype of \\\"clerical\\\" error accounts for the different time periods\\n\\ncontained in the original, 2007 versions of the limitations\\n\\nprovisions. The Department reports that, after final adoption of\\n\\nthe MUSER rules in 2007, \\\"the Department discovered several\\n\\ninconsistencies that had slipped through in the rewriting\\n\\nprocess.\\\" MDOE Reply Br. at 6. One such inconsistency, the MDOE\\n\\nexplains, was retention of the originally proposed two-year\\n\\nlimitations period in § XVI.13.E (the \\\"filing deadline\\\") instead\\n\\nof the four-year period that the Legislature had expressly directed\\n\\nfor § XVI.5A(2) (the \\\"lookback term\\\"). The MDOE rectified the\\n\\n\\n - 37 -\\n\\ninconsistency through a new rulemaking in 2008, explaining in\\n\\npublic materials that \\\"[t]he purpose and scope of this rulemaking\\n\\nwas to make several corrections not addressed in the [2007\\n\\nproceedings] to make consistent . . . the statute of limitations\\n\\nat four years in appropriate sections.\\\" MDOE Reply Br., Supp.\\n\\nApp'x at 21 (quoting Comments and Responses to Proposed Amendments\\n\\nChapter 101 Public Hearing, Nov. 13, 2007). The change to\\n\\n§ XVI.13.E, replacing \\\"two years\\\" with \\\"four years\\\" for the filing\\n\\ndeadline, was adopted in April 2008 -- i.e., about a year and a\\n\\nhalf before the MDOE initiated the MUSER rulemaking proceedings\\n\\nunderlying this case.\\n\\n The MDOE cites the 2007-2008 history as proof that it\\n\\nalways construed the timeframes in the two provisions to refer to\\n\\nthe same deadline for filing a request for a due process hearing,\\n\\nand it implies that the earlier corrective process validates the\\n\\n\\\"technical, conforming correction\\\" it made in 2010. But regardless\\n\\nof what the MDOE's actions in 2007 and 2008 reveal about the\\n\\nDepartment's intentions at that time with respect to the two\\n\\nprovisions,18 its handling of the earlier inconsistency cannot\\n\\nlegitimize the subsequent flawed process. Among other factors,\\n\\nthe earlier change extended the deadline specified in the\\n\\n\\n 18The \\\"correction\\\" does not necessarily show that the MDOE\\nviewed the two provisions to state the same limitations period;\\nthe objective just as easily could have been to adopt a four-year\\nperiod for each of two independent provisions.\\n\\n\\n - 38 -\\n\\nregulation for requesting a due process hearing; now, the MDOE\\n\\nseeks to cut off remedies for students with disabilities.\\n\\nMoreover, the MDOE in 2007-2008 did not unilaterally amend the\\n\\nprovision approved by the Legislature. It gave notice to the\\n\\npublic of the proposed revision to § XVI.13.E and sought comments.\\n\\nGiven the handling of the 2007-2008 \\\"oversight\\\" in the recent past,\\n\\nthe Legislature and knowledgeable members of the public in 2009\\n\\ncould fairly presume that the lack of uniformity in the proposed\\n\\ntext was intentional, even if it was not.\\n\\n It bears repeating that confusion abounded concerning\\n\\nthe two MUSER provisions and their federal counterparts. The MDOE\\n\\nnonetheless made a significant behind-the-scenes change to a major\\n\\nsubstantive rule without adhering to the MAPA procedures that are\\n\\nmeant to ensure that the public and Legislature are informed of\\n\\nsuch revisions and have the opportunity to raise concerns. See\\n\\nMs. S. II, 2017 WL 5565206, at *8-11. That improper process cannot\\n\\nbe cured by relying on the Third Circuit's clarifying\\n\\ninterpretation of the IDEA more than five years later. See Ms. S.\\n\\nI, 829 F.3d at 108 (noting the Maine Law Court's conclusion that\\n\\nthe \\\"circumstances in which invalidation [of a rule] is automatic\\n\\nprincipally involve a denial of public participation\\\" (quoting\\n\\nFulkerson v. Comm'r, Me. Dep't of Human Servs., 628 A.2d 661, 664\\n\\n(Me. 1993)) (alteration in original)); id. at 109 (noting that\\n\\n\\n\\n\\n - 39 -\\n\\n\\\"the Legislature at least must have had the opportunity to review\\n\\nthe substance of a finally adopted rule\\\").\\n\\n My colleagues alternatively state that, even if\\n\\nprocedural errors rendered the revision of § XVI.13.E void under\\n\\nMAPA, they would conclude that MUSER lacked \\\"a valid 'explicit\\n\\ntime limitation'\\\" and would therefore impose the federal default\\n\\nof two years for the filing limitation. See Maj. Op. § II.C.2\\n\\n(quoting 20 U.S.C. § 1415(b)(6)(B), (f)(3)(C) (emphasis added by\\n\\nmajority)). But there is no justification for such a presumptuous\\n\\nstep -- that is, overriding a state's prevailing, properly\\n\\nimplemented limitations period to the detriment of the individuals\\n\\nthe statute is meant to protect. The IDEA does not require\\n\\nlockstep between a state's filing limitations period and the\\n\\nfederal timeline, and, if the change made to § XVI.13.E by the\\n\\nMDOE in 2010 is invalid, the four-year deadline remains in place.\\n\\n Moreover, fairness requires our adherence to the longer\\n\\nfiling limitations period. Section XVI.13.E, the provision\\n\\nunilaterally amended by the MDOE, has always been understood to\\n\\nestablish the deadline for requesting a due process hearing. Even\\n\\nif we now understand that § XVI.5.A(2) is another statement of\\n\\nthat same deadline, rather than an independent \\\"lookback term,\\\" we\\n\\ncannot simply disregard MAPA's notice and comment requirements for\\n\\namending the \\\"filing deadline\\\" in § XVI.13.E. Put differently,\\n\\nthis panel's clarifying ruling in this case that federal and state\\n\\n\\n - 40 -\\n\\nlaw each set a single limitations period cannot undo the flaws in\\n\\n2009-2010 that -- as the district court properly\\n\\nfound -- invalidate the MDOE's attempt to reduce the limitations\\n\\nperiod for requesting a due process hearing. We cannot undo with\\n\\na few strokes of the pen the confusion or improper administrative\\n\\nproceedings of the past.\\n\\n The majority skims over the departure from MAPA's\\n\\nrequirements, concluding that the unauthorized change to\\n\\n§ XVI.13.E must be given effect in this case simply because the\\n\\nMDOE has now explained why a two-year timeframe is appropriate.\\n\\nThat conclusion fails to respect the objective of public\\n\\nparticipation reflected in Maine's detailed administrative scheme.\\n\\nIf the MDOE wants to change the governing four-year statute of\\n\\nlimitations, it must do so the right way. Unlike my colleagues,\\n\\nI cannot condone the MDOE's improper adoption of the reduced filing\\n\\ndeadline, contrary to the public disclosures required by law, or\\n\\nthe resulting unfair refusal to consider Ms. S.'s claims concerning\\n\\nher son's ninth and tenth grade years. I therefore respectfully\\n\\ndissent.\\n\\n\\n\\n\\n - 41 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368639/\", \"author_raw\": \"LIPEZ, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"SELYA"},"judge3":{"kind":"string","value":"LIPEZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591386/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: MS. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. REGIONAL SCHOOL UNIT 72, Defendant, Appellant, Maine Department of Education, Defendant. Ms. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. Maine Department of Education, Defendant, Appellant, Regional School Unit 72, Defendant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2214\n\n MS. S., individually and\n as parent and legal guardian of B.S., a minor,\n\n Plaintiff, Appellee,\n\n v.\n\n REGIONAL SCHOOL UNIT 72,\n\n Defendant, Appellant,\n\n MAINE DEPARTMENT OF EDUCATION,\n\n Defendant.\n\nNo. 18-1004\n\n MS. S., individually and\n as parent and legal guardian of B.S., a minor,\n\n Plaintiff, Appellee,\n\n v.\n\n MAINE DEPARTMENT OF EDUCATION,\n\n Defendant, Appellant,\n\n REGIONAL SCHOOL UNIT 72,\n\n Defendant.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Jon D. Levy, U.S. District Judge]\n\n Before\n\n Lynch, Selya, and Lipez,\n Circuit Judges.\n\n\n Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on\nbrief, for appellant, Regional School Unit 72.\n Sarah A. Forster, Assistant Attorney General, with whom\nThomas A. Knowlton, Assistant Attorney General, Of Counsel, and\nPhyllis Gardiner, Assistant Attorney General, were on brief, for\nappellant, Maine Department of Education.\n Richard L. O'Meara, with whom Murray, Plumb & Murray was on\nbrief, for appellee.\n\n\n February 15, 2019\n\n LYNCH, Circuit Judge. These appeals stem from a\n\ncomplaint filed by Ms. S. with the Maine Department of Education\n\n(\"MDOE\") in May 2013 alleging violations of the Individuals with\n\nDisabilities Education Act (\"IDEA\"). The state due process hearing\n\nofficer dismissed as untimely Ms. S.'s claims about her son B.S.'s\n\neducation in school years 2009-2010 and 2010-2011 and found no\n\nviolations as to school years 2011-2012 and 2012-2013.\n\n In this second decision from this court, we hold that\n\nMaine has established a two-year statute of limitations for due\n\nprocess complaints and that it has done so to align its statute of\n\nlimitations with the IDEA's. Ms. S.'s claims about 2009-2010 and\n\n2010-2011 are thus time barred. More specifically, we reverse the\n\ndistrict court's ruling that our earlier decision in Ms. S. v.\n\nRegional School Unit 72 (Ms. S. I), 829 F.3d 95 (1st Cir. 2016),\n\nforeclosed this interpretation of Maine's Unified Special\n\nEducation Regulation (\"MUSER\"), as well as the district court's\n\njudgment that Ms. S.'s claims were timely. See MS. S. v. Reg'l\n\nSch. Unit 72, No. 2:13-CV-453-JDL, 2017 WL 5565206, at *7-11 (D.\n\nMe. Nov. 20, 2017). And we reject Ms. S's proposed construction\n\nof MUSER, her waiver argument, and her contention that Regional\n\nSchool Unit 72 (\"RSU 72\") misled her. We remand with instructions\n\nto dismiss her action with prejudice.\n\n\n\n\n - 3 -\n\n I.\n\nA. Legal Background\n\n 1. The IDEA\n\n The IDEA requires states receiving federal special\n\neducation funds to provide eligible children with a free\n\nappropriate public education, or FAPE. 20 U.S.C. § 1412(a)(1).\n\nParents concerned that their child is not receiving a FAPE can\n\nrequest a due process hearing before a \"State educational agency\"\n\nin accordance with procedures \"determined by State law or by the\n\nState educational agency.\" Id. § 1415(f)(1)(A). State procedures\n\nmust be consistent with the IDEA's guidelines, which are laid out\n\nat 20 U.S.C. § 1415. See Burlington v. Dep't of Educ. for the\n\nComm. of Mass., 736 F.2d 773, 783-85 (1st Cir. 1984).\n\n Section 1415 did not initially include a statute of\n\nlimitations, but when Congress reauthorized the IDEA in 2004, it\n\naddressed the timeline for due process hearings in three\n\nprovisions. First, at § 1415(b)(6)(B), in a subsection covering\n\nvarious \"[t]ypes of procedures,\" the IDEA states that a party may\n\nfile a complaint that:\n\n sets forth an alleged violation that occurred not more\n than 2 years before the date the parent or public agency\n knew or should have known about the alleged action that\n forms the basis of the complaint, or, if the State has\n an explicit time limitation for presenting such a\n complaint under this subchapter, in such time as the\n State law allows, except that the exceptions to the\n timeline described in subsection (f)(3)(D) shall apply\n to the timeline described in this subparagraph.\n\n\n\n - 4 -\n\n20 U.S.C. § 1415(b)(6)(B) (emphasis added).\n\n Second, § 1415 describes due process hearings with\n\nparticularity, at § 1415 (f). Section 1415(f)(3)(C) provides:\n\n A parent or agency shall request an impartial due process\n hearing within 2 years of the date the parent or agency\n knew or should have known about the alleged action that\n forms the basis of the complaint, or, if the State has\n an explicit time limitation for requesting such a\n hearing under this subchapter, in such time as the State\n law allows.\n\nId. § 1415(f)(3)(C) (emphasis added).\n\n Third, the statute outlines the \"[e]xceptions to the\n\ntimeline\" referenced at § 1415(b)(6)(B). One exception applies\n\nwhere \"the parent was prevented from requesting the hearing due\n\nto . . . specific misrepresentations by the local educational\n\nagency that it had resolved the problem forming the basis of the\n\ncomplaint.\" Id. § 1415(f)(3)(D).\n\n In 2015, the Third Circuit held in G.L. v. Ligonier\n\nValley School District Authority, 802 F.3d 601, 604-05 (3d Cir.\n\n2015), that \"§ 1415(b)(6)(B) is simply an inartful attempt to\n\nmirror § 1415(f)(3)(C)'s two-year statute of limitations.\" In\n\n2017, the Ninth Circuit concluded the same. See Avila v. Spokane\n\nSch. Dist. 81, 852 F.3d 936, 937 (9th Cir. 2017).\n\n 2. MUSER\n\n In 2007, Maine enacted a state-specific time limitation,\n\nwhich is provided in MUSER. MUSER mirrors the language of the\n\n\n\n\n - 5 -\n\nIDEA. First, MUSER § XVI.5.A(2) tracks the language of 20 U.S.C.\n\n§ 1415(b)(6)(B) and states:\n\n The due process hearing request must allege a\n violation that occurred not more than two\n years before the date the parent . . . knew or\n should have known about the alleged action\n that forms the basis of the due process\n hearing request.\n\nMe. Code R. 05-071, Ch. 101 (\"MUSER\") § XVI.5.A(2) (emphasis\n\nadded). Second, MUSER § XVI.13.E tracks the language of 20 U.S.C.\n\n§ 1415(f)(3)(C) and reads:\n\n A parent . . . must request an impartial\n hearing on their due process hearing request\n within two years of the date the parent or\n agency knew or should have known about the\n alleged action that forms the basis of the due\n process hearing request.\n\nId. § XVI.13.E (emphasis added). Third, at § XVI.13.F, MUSER\n\ndescribes the \"[e]xceptions to the timeline\" provided at\n\n§ 1415(f)(3)(D) of the IDEA. Id. § XVI.13.F.\n\nB. Procedural Background\n\n Our decision in Ms. S. I offers background on B.S.'s\n\neducation. See 829 F.3d at 100–02. Here, we give the relevant\n\nprocedural facts.\n\n Ms. S. filed a due process hearing request in May 2013\n\nalleging that B.S. had not received a FAPE in his four years of\n\nhigh school, from 2009 through 2013. The Maine hearing officer\n\ndismissed as untimely the claims about B.S.'s ninth and tenth grade\n\nyears because they had been filed more than two years after Ms. S.\n\n\n\n - 6 -\n\nknew or should have known of any IDEA violations. On B.S.'s\n\neleventh and twelfth grade years, the hearing officer determined\n\nthat B.S. had received a FAPE, except during a short period when\n\nhe was between schools.\n\n Ms. S. sought judicial review in federal district court.\n\nShe did not contest that the ninth and tenth grade claims had been\n\nfiled more than two years after the reasonable discovery date.\n\nInstead, she challenged MUSER's two-year statute of limitations as\n\ninvalid under the Maine Administrative Procedure Act (\"MAPA\").\n\nThe time periods at MUSER §§ XVI.5.A(2) and XVI.13.E had been\n\nchanged from four to two years in a 2010 rulemaking. Ms. S.\n\nalleged that procedural errors during that rulemaking invalidated\n\nthe change in the time period at § XVI.13.E. About § XVI.5.A(2),\n\nshe argued not that the change was invalid but that it was\n\nirrelevant: § XVI.5.A(2), she said, established not a statute of\n\nlimitations but a separate \"look-back term\" restricting relief to\n\nviolations that occurred up to two years before the reasonable\n\ndiscovery date.\n\n The district court ruled that the revision of the statute\n\nof limitations to two years was valid and that Ms. S. could not\n\nbring her claims about B.S.'s ninth and tenth grade years under\n\nthe specific misrepresentation exception. The district court also\n\nagreed with the hearing officer's FAPE determination. Ms. S.\n\n\n\n\n - 7 -\n\nappealed. The school district, as appellee, defended against her\n\nclaims of error.\n\n Our first decision in Ms. S. I affirmed the district\n\ncourt's FAPE judgment. 829 F.3d at 113-15. The decision vacated\n\nand remanded on the timing issue after finding errors in the\n\ndistrict court's application of MAPA. Id. at 100. Ms. S. I did\n\nnot rule on the statute of limitations issue. Holding that the\n\nrecord was \"insufficient,\" we remanded to the district court for\n\nfurther factfinding and reevaluation. Id.\n\n On remand, the district court immediately granted MDOE\n\nleave to intervene, limited to the issue of whether MUSER had a\n\nvalid two-year statute of limitations.1 MDOE was ordered to\n\n\"compile a record of relevant administrative and legislative\n\nproceedings,\" and it later submitted over 500 pages of materials.\n\nIn her briefing, Ms. S. maintained that the change at § XVI.13.E\n\nwas void under MAPA. MDOE and RSU 72 offered a reworking of their\n\nview of the legal framework: the two MUSER provisions, they argued,\n\nmirror the IDEA and, like that statute, establish a single statute\n\nof limitations, not a statute of limitations and a \"look-back\n\nterm.\" Rejecting MDOE and RSU 72's reading as foreclosed by Ms.\n\nS. I, the district court agreed with Ms. S.'s MAPA arguments and\n\n\n\n 1 The district court rejected MDOE's request to intervene\non a second question: whether B.S. had received a FAPE in ninth\nand tenth grades.\n\n\n - 8 -\n\nheld that her claims were timely. RSU 72 and MDOE both appealed\n\nto this court.\n\n II.\n\n We address two threshold arguments before turning to the\n\ntiming limitations question.\n\nA. Law of the Case\n\n \"The law of the case doctrine 'posits that when a court\n\ndecides upon a rule of law, that decision should continue to govern\n\nthe same issues in subsequent stages in the same case.'\" United\n\nStates v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v.\n\nCalifornia, 460 U.S. 605, 618 (1983), supplemented by 466 U.S. 144\n\n(1984)). One form of the doctrine, known as the mandate rule,\n\nprohibits a trial court from reopening issues decided by an earlier\n\nappellate ruling in the same case. Id. According to the district\n\ncourt, Ms. S. I \"viewed the MUSER Look-Back Term and Filing\n\nLimitation rules as separate, 'unambiguous' provisions.\" Ms. S.,\n\n2017 WL 5565206, at *6. That \"construction of the MUSER rules in\n\nthis case, as the law of the case, is controlling,\" the district\n\ncourt held. Id. at *7. The application of the law of the case\n\ndoctrine is a question of law, which we review de novo. Buntin v.\n\nCity of Boston, 857 F.3d 69, 72 (1st Cir. 2017).\n\n Another form of the doctrine binds successor appellate\n\npanels to holdings of earlier appellate panels. Id. This branch\n\nof the doctrine is \"flexible,\" and has its exceptions. Ellis v.\n\n\n\n - 9 -\n\nUnited States, 313 F.3d 636, 646 (1st Cir. 2002); see also Bryan\n\nGarner et al., The Law of Judicial Precedent § 59 (2016) (detailing\n\nexceptions). The parties spar over whether Ms. S. I bars us from\n\nconsidering the theory that the two provisions of MUSER,\n\n§§ XVI.5.A(2) and XVI.13.E, contain a single statute of\n\nlimitations.\n\n For the law of the case doctrine to be a bar in either\n\nform, the issue must have been \"'actually considered and decided\n\nby the appellate court,' or a decision on the issue must be\n\n'necessarily inferred from the disposition on appeal.'\" Field v.\n\nMans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Commercial Union\n\nIns. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.\n\n1994)). In short, \"[p]rior holdings, as opposed to dicta, measure\n\nthe rule's reach.\" Garner et al., supra, § 54.\n\n Ms. S. I did not reach the issues involved here. The\n\ndistrict court concluded that our prior opinion had held that MUSER\n\ncontained both a look-back term and a filing limitation. The\n\nopinion did no such thing. The parties did not dispute and did\n\nnot brief the MUSER interpretive issue now before us. Instead,\n\nMs. S. I simply used the terminology the parties had used in the\n\nbriefs, which described § XVI.5.A(2) as the \"look-back term\" and\n\n§ XVI.13.E as the \"filing limitation.\" This reading was not, as\n\nM. S. calls it, a \"basic legal conclusion . . . central to [Ms. S.\n\nI's] analysis.\" It was presented only as \"[b]ackground.\" Ms. S.\n\n\n - 10 -\n\nI, 829 F.3d at 100-02. And MUSER played no essential role,\n\nexplicit or implicit, in any of Ms. S. I's remand instructions to\n\nthe district court. The prior panel's first two remand\n\ninstructions both dealt only with state administrative law. See\n\nid. at 105-09. And the third ordered the district court to\n\n\"reevaluate the[] content\" of certain legislative materials.2 Id.\n\nat 112.\n\n Independently, even if a holding from Ms. S. I did\n\noverlap (and none do) with an issue we are now asked to consider,\n\nthe law of the case doctrine would not be a hurdle. An exception\n\nto the doctrine would justify our addressing the issues here:\n\nEverything the panel majority said in Ms. S. I was provisioned on\n\nthe \"insufficient\" record in that first appeal. Id. at 100.\n\nDecisions made on an \"inadequate record or . . . designed to be\n\npreliminary or tentative\" are excepted from the law of the case\n\n\n\n\n 2 In guiding the district court's use of legislative\nevidence, Ms. S. I did remark on MUSER. Ms. S. had argued that\ncourts can never look at legislative intent in evaluating MAPA\ncompliance, so we noted that \"[o]rdinarily, the Law Court does not\nlook beyond language approved by the Legislature to determine the\nLegislature's intent where, as here, the language is unambiguous.\"\nMs. S. I, 829 F.3d at 110. This was not a holding that MUSER\nunambiguously contains two separate timing requirements. Our\ndirective to the district court was evidence-specific and\nemphatically was not that legislative intent is irrelevant because\nof MUSER's clarity. See id at 110-12. Further, what we found\nclear was circumscribed: that the proposed version of § XVI.13.E\nsaid \"four,\" not \"two.\" Id. at 110.\n\n\n - 11 -\n\ndoctrine. Ellis, 313 F.3d at 647.3 In sum, the law of the case\n\ndoctrine does not bar consideration of the theory that MUSER has\n\none statute of limitations mirroring the IDEA's. The district\n\ncourt erred.\n\nB. Waiver\n\n We must deal with one more objection. Ms. S. contends\n\nthat the doctrine of waiver prohibits RSU 72 from arguing that\n\nMUSER has a single statute of limitations because RSU 72 did not\n\ndo so in its briefing in Ms. S. I.4 RSU 72 was the appellee, not\n\nthe appellant, in Ms. S. I. While \"an appellee might in some\n\nsituations be required to raise\" an alternative argument\n\nsupporting affirmance \"in its appellate briefs\" to preserve that\n\nargument for later appeals, this court found no waiver of such an\n\nargument in Field v. Mans. See 157 F.3d at 41-42; see also Field\n\n\n\n 3 Relevant changes in the law –- notably, other circuits'\ndeterminations that the IDEA contains a single statute of\nlimitations -- and in the facts -- including new administrative\nand legislative evidence -- reinforce our conclusion that\nreconsideration is proper. Cf. Nkihtaqmikon v. Impson, 585 F.3d\n495, 498 (1st Cir. 2009) (\"We could revisit our own earlier\ndecision if [the appellant] could show that controlling legal\nauthority has changed dramatically; [or could] proffer significant\nnew evidence, not earlier obtainable in the exercise of due\ndiligence\" (internal quotation marks omitted)); Garner et al.,\nsupra, § 59 (\"[I]n exceptional circumstances involving a dramatic\nchange in controlling legal authority, a court may deviate from\nthe law of the case.\").\n 4 RSU 72 developed the argument that MUSER has a single\nstatute of limitations mirroring the IDEA's on remand in the\ndistrict court.\n\n\n - 12 -\n\nv. Mans, 516 U.S. 59, 78-79 (1995) (Ginsburg, J., concurring)\n\n(suggesting that the argument was not waived and should be\n\nconsidered in future proceedings). In United States v. Moran, we\n\nalso found no waiver of claims of error which were not raised by\n\ndefendants as appellees in prior appeal of a\n\n\"judgment . . . entirely favorable to the appellee.\"5 393 F.3d at\n\n12.\n\n These cases reflect the general rule that \"the failure\n\nof an appellee to have raised all possible alternative grounds for\n\naffirming the district court's original decision, unlike an\n\nappellant's failure to raise all possible grounds for reversal,\n\nshould not operate as a waiver.\" Schering Corp. v. Ill.\n\nAntibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996);6 see also, e.g.,\n\n\n\n 5 Ms. S. leans heavily on Moran, but that case does not\nsupport her position. Moran ultimately found no waiver by former\nappellees, reasoning that they had not been required to raise in\nthe first appeal \"irrelevant\" or \"redundant\" arguments. 393 F.3d\nat 12 (quoting Field, 157 F.3d at 41-42).\n 6 Ms. S. embraces Schering Corp., 89 F.3d at 358-59, but\nit hurts rather than helps her. The Seventh Circuit found waiver\nby a former appellee in circumstances entirely unlike these. The\ncourt found waiver of a challenge, omitted in the first appeal, to\na trial court's ruling excluding evidence supporting affirmance.\nSee id. In the second appeal, the former appellee sought to reopen\nthe previous ruling based on \"newly discovered evidence\" -- i.e.,\nthe evidence excluded by the district court and not raised in the\nfirst appeal. Id. at 359. Schering explicitly distinguished that\nsituation from the one we face, in which \"an alternative ground\nfor affirmance [was omitted] in the previous round\" by appellee\nand no waiver of that argument would be found on subsequent appeal.\nId. at 358.\n\n\n - 13 -\n\nEichorn v. AT&T Corp., 484 F.3d 644, 657–58 (3d Cir. 2007) (\"As\n\n[appellees in the previous appeal], [defendants] were not required\n\nto raise all possible alternative grounds for affirmance to avoid\n\nwaiving those grounds.\"); Indep. Park Apartments v. United States,\n\n449 F.3d 1235, 1240 (Fed. Cir.), decision clarified on reh'g, 465\n\nF.3d 1308 (Fed. Cir. 2006) (\"As appellee, the government was not\n\nrequired to raise all possible alternative grounds for affirmance\n\nin order to avoid waiving any of those grounds.\"); Crocker v.\n\nPiedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (finding\n\nno waiver of issue omitted in prior appeal by then-appellee).\n\n The differing roles of appellees and appellants in\n\nframing the issues and in presenting arguments justifies differing\n\nwaiver rules on subsequent appeal. See Crocker, 49 F.3d at 741\n\n(weighing appellees' \"procedural disadvantage\"). This\n\ndifferentiation also makes practical sense: application of the\n\nwaiver rule to former appellees' omitted arguments would create\n\n\"judicial diseconomies.\" Id. at 741 (emphasis omitted); see also\n\nField, 157 F.3d at 41-42. It would fuel a multiplication of\n\narguments by appellees, even if \"entirely redundant.\" Field, 157\n\nF.3d at 42; see also Crocker, 49 F.3d at 740 (\"[F]orcing appellees\n\nto put forth every conceivable ground for affirmance might increase\n\nthe complexity and scope of appeals.\"). And it would incentivize\n\n\"dubious cross-appeal[s]\" by appellees to fully air their\n\n\n\n\n - 14 -\n\nalternative grounds. Field, 157 F.3d at 41-42; see also Crocker,\n\n49 F.3d at 741.\n\n Whether application of this general rule is justified\n\n\"depends on the particular facts\" of the case. Field, 157 F.3d at\n\n41. And the facts do not support a finding of waiver in RSU 72's\n\nappeal. Ms. S., as appellant, not RSU 72, as appellee, \"defined\n\nthe battleground on the first appeal.\" Crocker, 49 F.3d at 740.\n\nHer briefing adopted the look-back term and filing limitation\n\nframework. To be sure, RSU 72 had an opportunity to advance a\n\none-statute-of-limitations reading in its response brief in Ms. S.\n\nI, as the basis for an alternative ground on which it should\n\nprevail. But it would have been difficult, if not impossible, for\n\nRSU 72's response brief to both defend the district court's\n\ndecision and to present, as the basis for an alternative ground,\n\na reworking of the interpretative framework assumed by the district\n\ncourt. And, had RSU 72 done this, it would not have had a chance\n\nto answer Ms. S.'s reply brief.\n\n Further, as Ms. S. has conceded, the argument does not\n\napply to MDOE because MDOE was not a party to the first appeal.\n\nMDOE, like RSU 72, reads MUSER to contain a single statute of\n\nlimitations, and has strongly urged us to so hold. As MDOE and\n\nRSU 72 argue, the issue at hand is one of \"public concern\" --\n\ntimelines for IDEA due process hearings affect children, parents,\n\nschool districts, states, and taxpayers. Nat'l Ass'n of Soc.\n\n\n - 15 -\n\nWorkers v. Harwood, 69 F.3d 622, 629 (1st Cir. 1995). There is a\n\nstrong public interest in a clear and correct ruling on the purely\n\nlegal question of how to read Maine's statute of limitations for\n\nIDEA due process hearings. See id. at 627-29 (finding no waiver\n\nof publicly important and compelling legal argument); Sindi v. El-\n\nMoslimany, 896 F.3d 1, 28 (1st Cir. 2018) (same).\n\nC. MUSER's Statute of Limitations\n\n 1. Interpreting the Regulation\n\n We hold that Maine intended to adopt a two-year\n\nlimitations period that mirrors the IDEA's timing provisions. This\n\nintent is evident from the language of the provisions: as noted,\n\nMUSER § XVI.5.A(2) mirrors 20 U.S.C. § 1415(b)(6)(B) and MUSER\n\n§ XVI.13.E mirrors 20 U.S.C. § 1414(f)(C)(3). Further, at § I,\n\nMUSER states, \"[t]hroughout this regulation the Department has\n\nreflected the federal statute and regulatory requirements in non-\n\nitalicized text,\" while, \"State requirements are in italicized\n\ntext.\" MUSER § I. The provisions that concern us contain no\n\nrelevant italics; they vary little from the \"federal statute and\n\nregulatory requirements.\"7\n\n So, we turn to the IDEA to determine how to read MUSER.\n\nThe federal Department of Education stated in 2016 that \"[t]he\n\n\n\n 7 Only a state-specific acronym -- \"SAU,\" or school\nadministrative unit -- is italicized in the provisions. See MUSER\n§§ XVI.5.A(2), XVI.13.E.\n\n\n - 16 -\n\nstatute of limitations in section [1415(b)(6)(B)] is the same as\n\nthe statute of limitations in section [1415(f)(3)(C)].\"\n\nAssistance to States for the Education of Children with\n\nDisabilities and Preschool Grants for Children With Disabilities,\n\n71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006). We hold that the\n\nIDEA has a single two-year statute of limitations regulating the\n\namount of time to file a complaint after the reasonable discovery\n\ndate. In holding this, we join the Third and Ninth Circuits. See\n\nG.L., 802 F.3d at 604-05; Avila, 852 F.3d at 937.\n\n When Congress writes a statute of limitations, it\n\nchooses a rule from among several types. See, e.g., TRW Inc. v.\n\nAndrews, 534 U.S. 19, 32 (2001) (discussing various types). One\n\noption is the occurrence rule -- that is, counting from the date\n\nof the violation. See G.L., 802 F.3d at 613. Another option is\n\nthe discovery rule, which counts from the date of discovery. See\n\nid. Section 1415(b)(6)(B) defies categorization: in counting from\n\nthe injury date to the reasonable discovery date, it appears to be\n\na hybrid of these two rules. Like our sister circuits, we doubt\n\nthat Congress intended to invent a new type of timing limit or to\n\nsneak a \"remedy cap\" into § 1415(b)(6)(B). See G.L., 802 F.3d at\n\n613-15; Avila, 852 F.3d at 941-42. Indeed, the Third Circuit\n\ntraced the hints of the occurrence rule in § 1415(b)(6)(B) to a\n\ndrafting error during the reconciliation of the House and Senate\n\nversions of the 2004 IDEA reauthorization. G.L., 802 F.3d at 622-\n\n\n - 17 -\n\n23 (explaining that the House version had used the occurrence rule\n\nand identifying errors in conforming that version to the Senate's).\n\nSection 1415(f)(3)(C), on the other hand, is clear: it establishes\n\na discovery rule. As a result, in the IDEA, a single \"discovery\n\nrule controls.\" G.L., 802 F.3d at 613.\n\n Ms. S. disputes that MUSER can also be read to establish\n\na two-year statute of limitations but not a look-back term. She\n\npoints primarily to MUSER's language. But the reference to the\n\ndate of the \"alleged action\" in the text of § XVI.5.A(2) is a\n\nreplication of the IDEA's drafting mistake, not evidence that Maine\n\nintended to set up two separate state standards. Unconvinced by\n\nMs. S.'s textual arguments, we conclude that MUSER follows the\n\nIDEA in establishing a single statute of limitations that runs\n\nfrom the reasonable discovery date to the filing date.\n\n In addition to being contrary to the state's intent in\n\ndesigning MUSER, Ms. S.'s reading could put MUSER in active\n\nconflict with federal law. Because \"§ 1415(b)(6)(B) is simply an\n\ninartful attempt to mirror § 1415(f)(3)(C)'s two-year statute of\n\nlimitations,\" G.L., 802 F.3d at 604-05; see also Avila, 852 F.3d\n\nat 942, the IDEA likely authorizes states to enact a single state-\n\nspecific statute of limitations, not a look-back term and a filing\n\nlimitation. In fact, most states that have chosen to enact a\n\nstate-specific \"explicit time limitation,\" see G.L., 802 F.3d at\n\n617, including Massachusetts, see Michelle K. v. Pentucket Reg'l\n\n\n - 18 -\n\nSch. Dist., 79 F. Supp. 3d 361, 372-73 (D. Mass. 2015) (discussing\n\nBSEA Hearing Rule I(C)), and New Hampshire, see N.H. Rev. Stat.\n\nAnn. § 186–C:16–b, I; see also Pass v. Rollinsford Sch. Dist., 928\n\nF. Supp. 2d 349, 364 (D.N.H. 2013), have done just that: enacted\n\na single statute of limitations. Ms. S. points to no states that\n\nhave adopted a look-back term and a filing limitation.\n\n 2. Application to Ms. S.'s Claims\n\n It follows that Ms. S.'s claims about the 2009-2010 and\n\n2010-2011 school years were untimely when filed in May 2013. As\n\nMs. S. concedes, these claims alleged violations that Ms. S. knew\n\nor should have known about during school years 2009-2010 and 2010-\n\n2011. The claims were more than two years old when filed, and the\n\nversion of MUSER in force in May 2013 stated that the statute of\n\nlimitations was two years. MUSER §§ XVI.5.A(2), XVI.13.E. The\n\ndistrict court erred in ruling that Ms. S.'s claims were timely.\n\n We have no reason to reach the state law issue of whether\n\nthe MDOE complied with MAPA in promulgating the 2010 amendments to\n\nMUSER. It does not affect the outcome of the case. If there were\n\nno state law procedural errors during the rulemaking or if the\n\nerrors were insubstantial or harmless, then MUSER's statute of\n\nlimitations was validly set at two years as a matter of state\n\nprocedural law. See 5 Me. Rev. Stat. Ann. § 8058(1). Likewise,\n\nif procedural errors were to render the change from four to two at\n\n§ XVI.13.E void under MAPA, then we would conclude that Maine\n\n\n - 19 -\n\nlacked a valid \"explicit time limitation\" and so the federal\n\ndefault, also set at two years, would apply. See 20 U.S.C.\n\n§§ 1415(b)(6)(B); 1415(f)(3)(C) (emphasis added).\n\n The dissent concedes that the IDEA sets a single time\n\nlimitations period for due process hearings; that MUSER \"is\n\nintended to track the federal law\"; and (as does Ms. S.) that the\n\ntime limit at § XVI.5.A(2) was validly changed to two years during\n\nthe 2010 rulemaking. Nonetheless, the dissent rejects our\n\nconclusion that, if there were invalidating procedural errors, the\n\nfederal default would step in. It protests that we should not\n\napply the federal default because the IDEA does not require states\n\nto adopt the federal limitations period. That is true, but it is\n\nbeside the point here. MDOE has consistently taken the position\n\nthat MUSER's timing provisions parallel the IDEA's in structure.\n\nSignificantly, during the 2010 rulemaking, MDOE's concise summary\n\nin the rulemaking Notice explained that \"the statute of limitations\n\nfor due process hearings will be changed to the federal standard\n\nof two years.\" That is, MDOE has always viewed MUSER's statute of\n\nlimitations as tracking the federal law's.8 The IDEA only provides\n\n\n 8 Although the dissent agrees that MUSER tracks the\nfederal law, it suggests that MDOE has not always held this view.\nIt embraces Ms. S.'s unsupported assertion that a 2011 decision by\nan MDOE hearing officer, which, in dicta, described § XVI.5.A(2)\nand § XVI.13.E as distinct, represented the accepted understanding\namong MDOE hearing officers. But MDOE emphasizes that Ms. S. has\npointed to no other, similar statements by hearing officers. And\neven if she had, MDOE, whose hearing officers are independent, cf.\n\n\n - 20 -\n\nfor one statute of limitations,9 so it follows that if the 2010\n\nrulemaking somehow left Maine with two different limitations\n\nperiods, the state lacked its intended \"explicit time limitation,\"\n\nand the federal default should govern.\n\n In short, a two-year statute of limitations was in force\n\nin 2013 when MS. S. filed her due process hearing request and that\n\nrequest was therefore untimely.\n\nD. Specific Misrepresentation Exception\n\n Ms. S. finally argues that, even if a two-year statute\n\nof limitations applies, her claims should be allowed under the\n\nspecific misrepresentation exception. Ms. S. claims that she\n\nfailed to file earlier because of statements by the district that\n\nB.S.'s academic performance made him ineligible for IDEA services.\n\nAs Maine has implemented the IDEA, academic as well as \"functional\"\n\nperformance determine eligibility. MUSER § II.10-II.11; see also\n\nMr. I v. MSAD No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (describing\n\n\n\n\nMUSER § XVI.4.A(4)(c) (requiring the state to enforce due process\nhearing decisions), says that it has never adopted the view\nexpressed in the hearing officer's 2011 dicta. MDOE is best\npositioned to state its views.\n 9 Contrary to the dissent's suggestion, it is immaterial\nto this case that the Third Circuit's decision in G.L. holding\nthat the IDEA contains a single time limitation for due process\nhearings post-dated the 2010 rulemaking. G.L. held, as we do\ntoday, that the IDEA has contained a single statute of limitations\nsince the relevant provisions' enactment in 2004.\n\n\n - 21 -\n\nhow federal and state regulations interact to define IDEA-eligible\n\ndisabilities).\n\n The district court, in its first decision, determined\n\nthat Ms. S. did not qualify for the exception because no\n\nmisrepresentations had occurred. We declined to consider the issue\n\nthen. Ms. S. I, 829 F.3d at 113. Ms. S. does not cross appeal it\n\nhere but raises it as an alternative ground for relief.\n\n The record reveals no misrepresentations –- intentional\n\nor otherwise. The school district never told Ms. S. that academic\n\nperformance alone determined eligibility. Rather, district\n\nemployees, as the record and the district court's first decision\n\nshow, discussed B.S.'s academic performance alongside other\n\nfactors, like his social, behavioral, and emotional development.\n\nWe hold that Ms. S.'s claims regarding B.S.'s ninth and tenth grade\n\nyears are not allowed under the specific misrepresentation\n\nexception to MUSER's statute of limitations.\n\n III.\n\n We reverse and remand to the district court with\n\ninstructions to dismiss with prejudice.\n\n\n\n -Dissenting Opinion Follows-\n\n\n\n\n - 22 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: MS. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. REGIONAL SCHOOL UNIT 72, Defendant, Appellant, Maine Department of Education, Defendant. Ms. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. Maine Department of Education, Defendant, Appellant, Regional School Unit 72, Defendant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-15\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-2214\\n\\n MS. S., individually and\\n as parent and legal guardian of B.S., a minor,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n REGIONAL SCHOOL UNIT 72,\\n\\n Defendant, Appellant,\\n\\n MAINE DEPARTMENT OF EDUCATION,\\n\\n Defendant.\\n\\nNo. 18-1004\\n\\n MS. S., individually and\\n as parent and legal guardian of B.S., a minor,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n MAINE DEPARTMENT OF EDUCATION,\\n\\n Defendant, Appellant,\\n\\n REGIONAL SCHOOL UNIT 72,\\n\\n Defendant.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Jon D. Levy, U.S. District Judge]\\n\\n Before\\n\\n Lynch, Selya, and Lipez,\\n Circuit Judges.\\n\\n\\n Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on\\nbrief, for appellant, Regional School Unit 72.\\n Sarah A. Forster, Assistant Attorney General, with whom\\nThomas A. Knowlton, Assistant Attorney General, Of Counsel, and\\nPhyllis Gardiner, Assistant Attorney General, were on brief, for\\nappellant, Maine Department of Education.\\n Richard L. O'Meara, with whom Murray, Plumb & Murray was on\\nbrief, for appellee.\\n\\n\\n February 15, 2019\\n\\n LYNCH, Circuit Judge. These appeals stem from a\\n\\ncomplaint filed by Ms. S. with the Maine Department of Education\\n\\n(\\\"MDOE\\\") in May 2013 alleging violations of the Individuals with\\n\\nDisabilities Education Act (\\\"IDEA\\\"). The state due process hearing\\n\\nofficer dismissed as untimely Ms. S.'s claims about her son B.S.'s\\n\\neducation in school years 2009-2010 and 2010-2011 and found no\\n\\nviolations as to school years 2011-2012 and 2012-2013.\\n\\n In this second decision from this court, we hold that\\n\\nMaine has established a two-year statute of limitations for due\\n\\nprocess complaints and that it has done so to align its statute of\\n\\nlimitations with the IDEA's. Ms. S.'s claims about 2009-2010 and\\n\\n2010-2011 are thus time barred. More specifically, we reverse the\\n\\ndistrict court's ruling that our earlier decision in Ms. S. v.\\n\\nRegional School Unit 72 (Ms. S. I), 829 F.3d 95 (1st Cir. 2016),\\n\\nforeclosed this interpretation of Maine's Unified Special\\n\\nEducation Regulation (\\\"MUSER\\\"), as well as the district court's\\n\\njudgment that Ms. S.'s claims were timely. See MS. S. v. Reg'l\\n\\nSch. Unit 72, No. 2:13-CV-453-JDL, 2017 WL 5565206, at *7-11 (D.\\n\\nMe. Nov. 20, 2017). And we reject Ms. S's proposed construction\\n\\nof MUSER, her waiver argument, and her contention that Regional\\n\\nSchool Unit 72 (\\\"RSU 72\\\") misled her. We remand with instructions\\n\\nto dismiss her action with prejudice.\\n\\n\\n\\n\\n - 3 -\\n\\n I.\\n\\nA. Legal Background\\n\\n 1. The IDEA\\n\\n The IDEA requires states receiving federal special\\n\\neducation funds to provide eligible children with a free\\n\\nappropriate public education, or FAPE. 20 U.S.C. § 1412(a)(1).\\n\\nParents concerned that their child is not receiving a FAPE can\\n\\nrequest a due process hearing before a \\\"State educational agency\\\"\\n\\nin accordance with procedures \\\"determined by State law or by the\\n\\nState educational agency.\\\" Id. § 1415(f)(1)(A). State procedures\\n\\nmust be consistent with the IDEA's guidelines, which are laid out\\n\\nat 20 U.S.C. § 1415. See Burlington v. Dep't of Educ. for the\\n\\nComm. of Mass., 736 F.2d 773, 783-85 (1st Cir. 1984).\\n\\n Section 1415 did not initially include a statute of\\n\\nlimitations, but when Congress reauthorized the IDEA in 2004, it\\n\\naddressed the timeline for due process hearings in three\\n\\nprovisions. First, at § 1415(b)(6)(B), in a subsection covering\\n\\nvarious \\\"[t]ypes of procedures,\\\" the IDEA states that a party may\\n\\nfile a complaint that:\\n\\n sets forth an alleged violation that occurred not more\\n than 2 years before the date the parent or public agency\\n knew or should have known about the alleged action that\\n forms the basis of the complaint, or, if the State has\\n an explicit time limitation for presenting such a\\n complaint under this subchapter, in such time as the\\n State law allows, except that the exceptions to the\\n timeline described in subsection (f)(3)(D) shall apply\\n to the timeline described in this subparagraph.\\n\\n\\n\\n - 4 -\\n\\n20 U.S.C. § 1415(b)(6)(B) (emphasis added).\\n\\n Second, § 1415 describes due process hearings with\\n\\nparticularity, at § 1415 (f). Section 1415(f)(3)(C) provides:\\n\\n A parent or agency shall request an impartial due process\\n hearing within 2 years of the date the parent or agency\\n knew or should have known about the alleged action that\\n forms the basis of the complaint, or, if the State has\\n an explicit time limitation for requesting such a\\n hearing under this subchapter, in such time as the State\\n law allows.\\n\\nId. § 1415(f)(3)(C) (emphasis added).\\n\\n Third, the statute outlines the \\\"[e]xceptions to the\\n\\ntimeline\\\" referenced at § 1415(b)(6)(B). One exception applies\\n\\nwhere \\\"the parent was prevented from requesting the hearing due\\n\\nto . . . specific misrepresentations by the local educational\\n\\nagency that it had resolved the problem forming the basis of the\\n\\ncomplaint.\\\" Id. § 1415(f)(3)(D).\\n\\n In 2015, the Third Circuit held in G.L. v. Ligonier\\n\\nValley School District Authority, 802 F.3d 601, 604-05 (3d Cir.\\n\\n2015), that \\\"§ 1415(b)(6)(B) is simply an inartful attempt to\\n\\nmirror § 1415(f)(3)(C)'s two-year statute of limitations.\\\" In\\n\\n2017, the Ninth Circuit concluded the same. See Avila v. Spokane\\n\\nSch. Dist. 81, 852 F.3d 936, 937 (9th Cir. 2017).\\n\\n 2. MUSER\\n\\n In 2007, Maine enacted a state-specific time limitation,\\n\\nwhich is provided in MUSER. MUSER mirrors the language of the\\n\\n\\n\\n\\n - 5 -\\n\\nIDEA. First, MUSER § XVI.5.A(2) tracks the language of 20 U.S.C.\\n\\n§ 1415(b)(6)(B) and states:\\n\\n The due process hearing request must allege a\\n violation that occurred not more than two\\n years before the date the parent . . . knew or\\n should have known about the alleged action\\n that forms the basis of the due process\\n hearing request.\\n\\nMe. Code R. 05-071, Ch. 101 (\\\"MUSER\\\") § XVI.5.A(2) (emphasis\\n\\nadded). Second, MUSER § XVI.13.E tracks the language of 20 U.S.C.\\n\\n§ 1415(f)(3)(C) and reads:\\n\\n A parent . . . must request an impartial\\n hearing on their due process hearing request\\n within two years of the date the parent or\\n agency knew or should have known about the\\n alleged action that forms the basis of the due\\n process hearing request.\\n\\nId. § XVI.13.E (emphasis added). Third, at § XVI.13.F, MUSER\\n\\ndescribes the \\\"[e]xceptions to the timeline\\\" provided at\\n\\n§ 1415(f)(3)(D) of the IDEA. Id. § XVI.13.F.\\n\\nB. Procedural Background\\n\\n Our decision in Ms. S. I offers background on B.S.'s\\n\\neducation. See 829 F.3d at 100–02. Here, we give the relevant\\n\\nprocedural facts.\\n\\n Ms. S. filed a due process hearing request in May 2013\\n\\nalleging that B.S. had not received a FAPE in his four years of\\n\\nhigh school, from 2009 through 2013. The Maine hearing officer\\n\\ndismissed as untimely the claims about B.S.'s ninth and tenth grade\\n\\nyears because they had been filed more than two years after Ms. S.\\n\\n\\n\\n - 6 -\\n\\nknew or should have known of any IDEA violations. On B.S.'s\\n\\neleventh and twelfth grade years, the hearing officer determined\\n\\nthat B.S. had received a FAPE, except during a short period when\\n\\nhe was between schools.\\n\\n Ms. S. sought judicial review in federal district court.\\n\\nShe did not contest that the ninth and tenth grade claims had been\\n\\nfiled more than two years after the reasonable discovery date.\\n\\nInstead, she challenged MUSER's two-year statute of limitations as\\n\\ninvalid under the Maine Administrative Procedure Act (\\\"MAPA\\\").\\n\\nThe time periods at MUSER §§ XVI.5.A(2) and XVI.13.E had been\\n\\nchanged from four to two years in a 2010 rulemaking. Ms. S.\\n\\nalleged that procedural errors during that rulemaking invalidated\\n\\nthe change in the time period at § XVI.13.E. About § XVI.5.A(2),\\n\\nshe argued not that the change was invalid but that it was\\n\\nirrelevant: § XVI.5.A(2), she said, established not a statute of\\n\\nlimitations but a separate \\\"look-back term\\\" restricting relief to\\n\\nviolations that occurred up to two years before the reasonable\\n\\ndiscovery date.\\n\\n The district court ruled that the revision of the statute\\n\\nof limitations to two years was valid and that Ms. S. could not\\n\\nbring her claims about B.S.'s ninth and tenth grade years under\\n\\nthe specific misrepresentation exception. The district court also\\n\\nagreed with the hearing officer's FAPE determination. Ms. S.\\n\\n\\n\\n\\n - 7 -\\n\\nappealed. The school district, as appellee, defended against her\\n\\nclaims of error.\\n\\n Our first decision in Ms. S. I affirmed the district\\n\\ncourt's FAPE judgment. 829 F.3d at 113-15. The decision vacated\\n\\nand remanded on the timing issue after finding errors in the\\n\\ndistrict court's application of MAPA. Id. at 100. Ms. S. I did\\n\\nnot rule on the statute of limitations issue. Holding that the\\n\\nrecord was \\\"insufficient,\\\" we remanded to the district court for\\n\\nfurther factfinding and reevaluation. Id.\\n\\n On remand, the district court immediately granted MDOE\\n\\nleave to intervene, limited to the issue of whether MUSER had a\\n\\nvalid two-year statute of limitations.1 MDOE was ordered to\\n\\n\\\"compile a record of relevant administrative and legislative\\n\\nproceedings,\\\" and it later submitted over 500 pages of materials.\\n\\nIn her briefing, Ms. S. maintained that the change at § XVI.13.E\\n\\nwas void under MAPA. MDOE and RSU 72 offered a reworking of their\\n\\nview of the legal framework: the two MUSER provisions, they argued,\\n\\nmirror the IDEA and, like that statute, establish a single statute\\n\\nof limitations, not a statute of limitations and a \\\"look-back\\n\\nterm.\\\" Rejecting MDOE and RSU 72's reading as foreclosed by Ms.\\n\\nS. I, the district court agreed with Ms. S.'s MAPA arguments and\\n\\n\\n\\n 1 The district court rejected MDOE's request to intervene\\non a second question: whether B.S. had received a FAPE in ninth\\nand tenth grades.\\n\\n\\n - 8 -\\n\\nheld that her claims were timely. RSU 72 and MDOE both appealed\\n\\nto this court.\\n\\n II.\\n\\n We address two threshold arguments before turning to the\\n\\ntiming limitations question.\\n\\nA. Law of the Case\\n\\n \\\"The law of the case doctrine 'posits that when a court\\n\\ndecides upon a rule of law, that decision should continue to govern\\n\\nthe same issues in subsequent stages in the same case.'\\\" United\\n\\nStates v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v.\\n\\nCalifornia, 460 U.S. 605, 618 (1983), supplemented by 466 U.S. 144\\n\\n(1984)). One form of the doctrine, known as the mandate rule,\\n\\nprohibits a trial court from reopening issues decided by an earlier\\n\\nappellate ruling in the same case. Id. According to the district\\n\\ncourt, Ms. S. I \\\"viewed the MUSER Look-Back Term and Filing\\n\\nLimitation rules as separate, 'unambiguous' provisions.\\\" Ms. S.,\\n\\n2017 WL 5565206, at *6. That \\\"construction of the MUSER rules in\\n\\nthis case, as the law of the case, is controlling,\\\" the district\\n\\ncourt held. Id. at *7. The application of the law of the case\\n\\ndoctrine is a question of law, which we review de novo. Buntin v.\\n\\nCity of Boston, 857 F.3d 69, 72 (1st Cir. 2017).\\n\\n Another form of the doctrine binds successor appellate\\n\\npanels to holdings of earlier appellate panels. Id. This branch\\n\\nof the doctrine is \\\"flexible,\\\" and has its exceptions. Ellis v.\\n\\n\\n\\n - 9 -\\n\\nUnited States, 313 F.3d 636, 646 (1st Cir. 2002); see also Bryan\\n\\nGarner et al., The Law of Judicial Precedent § 59 (2016) (detailing\\n\\nexceptions). The parties spar over whether Ms. S. I bars us from\\n\\nconsidering the theory that the two provisions of MUSER,\\n\\n§§ XVI.5.A(2) and XVI.13.E, contain a single statute of\\n\\nlimitations.\\n\\n For the law of the case doctrine to be a bar in either\\n\\nform, the issue must have been \\\"'actually considered and decided\\n\\nby the appellate court,' or a decision on the issue must be\\n\\n'necessarily inferred from the disposition on appeal.'\\\" Field v.\\n\\nMans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Commercial Union\\n\\nIns. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.\\n\\n1994)). In short, \\\"[p]rior holdings, as opposed to dicta, measure\\n\\nthe rule's reach.\\\" Garner et al., supra, § 54.\\n\\n Ms. S. I did not reach the issues involved here. The\\n\\ndistrict court concluded that our prior opinion had held that MUSER\\n\\ncontained both a look-back term and a filing limitation. The\\n\\nopinion did no such thing. The parties did not dispute and did\\n\\nnot brief the MUSER interpretive issue now before us. Instead,\\n\\nMs. S. I simply used the terminology the parties had used in the\\n\\nbriefs, which described § XVI.5.A(2) as the \\\"look-back term\\\" and\\n\\n§ XVI.13.E as the \\\"filing limitation.\\\" This reading was not, as\\n\\nM. S. calls it, a \\\"basic legal conclusion . . . central to [Ms. S.\\n\\nI's] analysis.\\\" It was presented only as \\\"[b]ackground.\\\" Ms. S.\\n\\n\\n - 10 -\\n\\nI, 829 F.3d at 100-02. And MUSER played no essential role,\\n\\nexplicit or implicit, in any of Ms. S. I's remand instructions to\\n\\nthe district court. The prior panel's first two remand\\n\\ninstructions both dealt only with state administrative law. See\\n\\nid. at 105-09. And the third ordered the district court to\\n\\n\\\"reevaluate the[] content\\\" of certain legislative materials.2 Id.\\n\\nat 112.\\n\\n Independently, even if a holding from Ms. S. I did\\n\\noverlap (and none do) with an issue we are now asked to consider,\\n\\nthe law of the case doctrine would not be a hurdle. An exception\\n\\nto the doctrine would justify our addressing the issues here:\\n\\nEverything the panel majority said in Ms. S. I was provisioned on\\n\\nthe \\\"insufficient\\\" record in that first appeal. Id. at 100.\\n\\nDecisions made on an \\\"inadequate record or . . . designed to be\\n\\npreliminary or tentative\\\" are excepted from the law of the case\\n\\n\\n\\n\\n 2 In guiding the district court's use of legislative\\nevidence, Ms. S. I did remark on MUSER. Ms. S. had argued that\\ncourts can never look at legislative intent in evaluating MAPA\\ncompliance, so we noted that \\\"[o]rdinarily, the Law Court does not\\nlook beyond language approved by the Legislature to determine the\\nLegislature's intent where, as here, the language is unambiguous.\\\"\\nMs. S. I, 829 F.3d at 110. This was not a holding that MUSER\\nunambiguously contains two separate timing requirements. Our\\ndirective to the district court was evidence-specific and\\nemphatically was not that legislative intent is irrelevant because\\nof MUSER's clarity. See id at 110-12. Further, what we found\\nclear was circumscribed: that the proposed version of § XVI.13.E\\nsaid \\\"four,\\\" not \\\"two.\\\" Id. at 110.\\n\\n\\n - 11 -\\n\\ndoctrine. Ellis, 313 F.3d at 647.3 In sum, the law of the case\\n\\ndoctrine does not bar consideration of the theory that MUSER has\\n\\none statute of limitations mirroring the IDEA's. The district\\n\\ncourt erred.\\n\\nB. Waiver\\n\\n We must deal with one more objection. Ms. S. contends\\n\\nthat the doctrine of waiver prohibits RSU 72 from arguing that\\n\\nMUSER has a single statute of limitations because RSU 72 did not\\n\\ndo so in its briefing in Ms. S. I.4 RSU 72 was the appellee, not\\n\\nthe appellant, in Ms. S. I. While \\\"an appellee might in some\\n\\nsituations be required to raise\\\" an alternative argument\\n\\nsupporting affirmance \\\"in its appellate briefs\\\" to preserve that\\n\\nargument for later appeals, this court found no waiver of such an\\n\\nargument in Field v. Mans. See 157 F.3d at 41-42; see also Field\\n\\n\\n\\n 3 Relevant changes in the law –- notably, other circuits'\\ndeterminations that the IDEA contains a single statute of\\nlimitations -- and in the facts -- including new administrative\\nand legislative evidence -- reinforce our conclusion that\\nreconsideration is proper. Cf. Nkihtaqmikon v. Impson, 585 F.3d\\n495, 498 (1st Cir. 2009) (\\\"We could revisit our own earlier\\ndecision if [the appellant] could show that controlling legal\\nauthority has changed dramatically; [or could] proffer significant\\nnew evidence, not earlier obtainable in the exercise of due\\ndiligence\\\" (internal quotation marks omitted)); Garner et al.,\\nsupra, § 59 (\\\"[I]n exceptional circumstances involving a dramatic\\nchange in controlling legal authority, a court may deviate from\\nthe law of the case.\\\").\\n 4 RSU 72 developed the argument that MUSER has a single\\nstatute of limitations mirroring the IDEA's on remand in the\\ndistrict court.\\n\\n\\n - 12 -\\n\\nv. Mans, 516 U.S. 59, 78-79 (1995) (Ginsburg, J., concurring)\\n\\n(suggesting that the argument was not waived and should be\\n\\nconsidered in future proceedings). In United States v. Moran, we\\n\\nalso found no waiver of claims of error which were not raised by\\n\\ndefendants as appellees in prior appeal of a\\n\\n\\\"judgment . . . entirely favorable to the appellee.\\\"5 393 F.3d at\\n\\n12.\\n\\n These cases reflect the general rule that \\\"the failure\\n\\nof an appellee to have raised all possible alternative grounds for\\n\\naffirming the district court's original decision, unlike an\\n\\nappellant's failure to raise all possible grounds for reversal,\\n\\nshould not operate as a waiver.\\\" Schering Corp. v. Ill.\\n\\nAntibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996);6 see also, e.g.,\\n\\n\\n\\n 5 Ms. S. leans heavily on Moran, but that case does not\\nsupport her position. Moran ultimately found no waiver by former\\nappellees, reasoning that they had not been required to raise in\\nthe first appeal \\\"irrelevant\\\" or \\\"redundant\\\" arguments. 393 F.3d\\nat 12 (quoting Field, 157 F.3d at 41-42).\\n 6 Ms. S. embraces Schering Corp., 89 F.3d at 358-59, but\\nit hurts rather than helps her. The Seventh Circuit found waiver\\nby a former appellee in circumstances entirely unlike these. The\\ncourt found waiver of a challenge, omitted in the first appeal, to\\na trial court's ruling excluding evidence supporting affirmance.\\nSee id. In the second appeal, the former appellee sought to reopen\\nthe previous ruling based on \\\"newly discovered evidence\\\" -- i.e.,\\nthe evidence excluded by the district court and not raised in the\\nfirst appeal. Id. at 359. Schering explicitly distinguished that\\nsituation from the one we face, in which \\\"an alternative ground\\nfor affirmance [was omitted] in the previous round\\\" by appellee\\nand no waiver of that argument would be found on subsequent appeal.\\nId. at 358.\\n\\n\\n - 13 -\\n\\nEichorn v. AT&T Corp., 484 F.3d 644, 657–58 (3d Cir. 2007) (\\\"As\\n\\n[appellees in the previous appeal], [defendants] were not required\\n\\nto raise all possible alternative grounds for affirmance to avoid\\n\\nwaiving those grounds.\\\"); Indep. Park Apartments v. United States,\\n\\n449 F.3d 1235, 1240 (Fed. Cir.), decision clarified on reh'g, 465\\n\\nF.3d 1308 (Fed. Cir. 2006) (\\\"As appellee, the government was not\\n\\nrequired to raise all possible alternative grounds for affirmance\\n\\nin order to avoid waiving any of those grounds.\\\"); Crocker v.\\n\\nPiedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (finding\\n\\nno waiver of issue omitted in prior appeal by then-appellee).\\n\\n The differing roles of appellees and appellants in\\n\\nframing the issues and in presenting arguments justifies differing\\n\\nwaiver rules on subsequent appeal. See Crocker, 49 F.3d at 741\\n\\n(weighing appellees' \\\"procedural disadvantage\\\"). This\\n\\ndifferentiation also makes practical sense: application of the\\n\\nwaiver rule to former appellees' omitted arguments would create\\n\\n\\\"judicial diseconomies.\\\" Id. at 741 (emphasis omitted); see also\\n\\nField, 157 F.3d at 41-42. It would fuel a multiplication of\\n\\narguments by appellees, even if \\\"entirely redundant.\\\" Field, 157\\n\\nF.3d at 42; see also Crocker, 49 F.3d at 740 (\\\"[F]orcing appellees\\n\\nto put forth every conceivable ground for affirmance might increase\\n\\nthe complexity and scope of appeals.\\\"). And it would incentivize\\n\\n\\\"dubious cross-appeal[s]\\\" by appellees to fully air their\\n\\n\\n\\n\\n - 14 -\\n\\nalternative grounds. Field, 157 F.3d at 41-42; see also Crocker,\\n\\n49 F.3d at 741.\\n\\n Whether application of this general rule is justified\\n\\n\\\"depends on the particular facts\\\" of the case. Field, 157 F.3d at\\n\\n41. And the facts do not support a finding of waiver in RSU 72's\\n\\nappeal. Ms. S., as appellant, not RSU 72, as appellee, \\\"defined\\n\\nthe battleground on the first appeal.\\\" Crocker, 49 F.3d at 740.\\n\\nHer briefing adopted the look-back term and filing limitation\\n\\nframework. To be sure, RSU 72 had an opportunity to advance a\\n\\none-statute-of-limitations reading in its response brief in Ms. S.\\n\\nI, as the basis for an alternative ground on which it should\\n\\nprevail. But it would have been difficult, if not impossible, for\\n\\nRSU 72's response brief to both defend the district court's\\n\\ndecision and to present, as the basis for an alternative ground,\\n\\na reworking of the interpretative framework assumed by the district\\n\\ncourt. And, had RSU 72 done this, it would not have had a chance\\n\\nto answer Ms. S.'s reply brief.\\n\\n Further, as Ms. S. has conceded, the argument does not\\n\\napply to MDOE because MDOE was not a party to the first appeal.\\n\\nMDOE, like RSU 72, reads MUSER to contain a single statute of\\n\\nlimitations, and has strongly urged us to so hold. As MDOE and\\n\\nRSU 72 argue, the issue at hand is one of \\\"public concern\\\" --\\n\\ntimelines for IDEA due process hearings affect children, parents,\\n\\nschool districts, states, and taxpayers. Nat'l Ass'n of Soc.\\n\\n\\n - 15 -\\n\\nWorkers v. Harwood, 69 F.3d 622, 629 (1st Cir. 1995). There is a\\n\\nstrong public interest in a clear and correct ruling on the purely\\n\\nlegal question of how to read Maine's statute of limitations for\\n\\nIDEA due process hearings. See id. at 627-29 (finding no waiver\\n\\nof publicly important and compelling legal argument); Sindi v. El-\\n\\nMoslimany, 896 F.3d 1, 28 (1st Cir. 2018) (same).\\n\\nC. MUSER's Statute of Limitations\\n\\n 1. Interpreting the Regulation\\n\\n We hold that Maine intended to adopt a two-year\\n\\nlimitations period that mirrors the IDEA's timing provisions. This\\n\\nintent is evident from the language of the provisions: as noted,\\n\\nMUSER § XVI.5.A(2) mirrors 20 U.S.C. § 1415(b)(6)(B) and MUSER\\n\\n§ XVI.13.E mirrors 20 U.S.C. § 1414(f)(C)(3). Further, at § I,\\n\\nMUSER states, \\\"[t]hroughout this regulation the Department has\\n\\nreflected the federal statute and regulatory requirements in non-\\n\\nitalicized text,\\\" while, \\\"State requirements are in italicized\\n\\ntext.\\\" MUSER § I. The provisions that concern us contain no\\n\\nrelevant italics; they vary little from the \\\"federal statute and\\n\\nregulatory requirements.\\\"7\\n\\n So, we turn to the IDEA to determine how to read MUSER.\\n\\nThe federal Department of Education stated in 2016 that \\\"[t]he\\n\\n\\n\\n 7 Only a state-specific acronym -- \\\"SAU,\\\" or school\\nadministrative unit -- is italicized in the provisions. See MUSER\\n§§ XVI.5.A(2), XVI.13.E.\\n\\n\\n - 16 -\\n\\nstatute of limitations in section [1415(b)(6)(B)] is the same as\\n\\nthe statute of limitations in section [1415(f)(3)(C)].\\\"\\n\\nAssistance to States for the Education of Children with\\n\\nDisabilities and Preschool Grants for Children With Disabilities,\\n\\n71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006). We hold that the\\n\\nIDEA has a single two-year statute of limitations regulating the\\n\\namount of time to file a complaint after the reasonable discovery\\n\\ndate. In holding this, we join the Third and Ninth Circuits. See\\n\\nG.L., 802 F.3d at 604-05; Avila, 852 F.3d at 937.\\n\\n When Congress writes a statute of limitations, it\\n\\nchooses a rule from among several types. See, e.g., TRW Inc. v.\\n\\nAndrews, 534 U.S. 19, 32 (2001) (discussing various types). One\\n\\noption is the occurrence rule -- that is, counting from the date\\n\\nof the violation. See G.L., 802 F.3d at 613. Another option is\\n\\nthe discovery rule, which counts from the date of discovery. See\\n\\nid. Section 1415(b)(6)(B) defies categorization: in counting from\\n\\nthe injury date to the reasonable discovery date, it appears to be\\n\\na hybrid of these two rules. Like our sister circuits, we doubt\\n\\nthat Congress intended to invent a new type of timing limit or to\\n\\nsneak a \\\"remedy cap\\\" into § 1415(b)(6)(B). See G.L., 802 F.3d at\\n\\n613-15; Avila, 852 F.3d at 941-42. Indeed, the Third Circuit\\n\\ntraced the hints of the occurrence rule in § 1415(b)(6)(B) to a\\n\\ndrafting error during the reconciliation of the House and Senate\\n\\nversions of the 2004 IDEA reauthorization. G.L., 802 F.3d at 622-\\n\\n\\n - 17 -\\n\\n23 (explaining that the House version had used the occurrence rule\\n\\nand identifying errors in conforming that version to the Senate's).\\n\\nSection 1415(f)(3)(C), on the other hand, is clear: it establishes\\n\\na discovery rule. As a result, in the IDEA, a single \\\"discovery\\n\\nrule controls.\\\" G.L., 802 F.3d at 613.\\n\\n Ms. S. disputes that MUSER can also be read to establish\\n\\na two-year statute of limitations but not a look-back term. She\\n\\npoints primarily to MUSER's language. But the reference to the\\n\\ndate of the \\\"alleged action\\\" in the text of § XVI.5.A(2) is a\\n\\nreplication of the IDEA's drafting mistake, not evidence that Maine\\n\\nintended to set up two separate state standards. Unconvinced by\\n\\nMs. S.'s textual arguments, we conclude that MUSER follows the\\n\\nIDEA in establishing a single statute of limitations that runs\\n\\nfrom the reasonable discovery date to the filing date.\\n\\n In addition to being contrary to the state's intent in\\n\\ndesigning MUSER, Ms. S.'s reading could put MUSER in active\\n\\nconflict with federal law. Because \\\"§ 1415(b)(6)(B) is simply an\\n\\ninartful attempt to mirror § 1415(f)(3)(C)'s two-year statute of\\n\\nlimitations,\\\" G.L., 802 F.3d at 604-05; see also Avila, 852 F.3d\\n\\nat 942, the IDEA likely authorizes states to enact a single state-\\n\\nspecific statute of limitations, not a look-back term and a filing\\n\\nlimitation. In fact, most states that have chosen to enact a\\n\\nstate-specific \\\"explicit time limitation,\\\" see G.L., 802 F.3d at\\n\\n617, including Massachusetts, see Michelle K. v. Pentucket Reg'l\\n\\n\\n - 18 -\\n\\nSch. Dist., 79 F. Supp. 3d 361, 372-73 (D. Mass. 2015) (discussing\\n\\nBSEA Hearing Rule I(C)), and New Hampshire, see N.H. Rev. Stat.\\n\\nAnn. § 186–C:16–b, I; see also Pass v. Rollinsford Sch. Dist., 928\\n\\nF. Supp. 2d 349, 364 (D.N.H. 2013), have done just that: enacted\\n\\na single statute of limitations. Ms. S. points to no states that\\n\\nhave adopted a look-back term and a filing limitation.\\n\\n 2. Application to Ms. S.'s Claims\\n\\n It follows that Ms. S.'s claims about the 2009-2010 and\\n\\n2010-2011 school years were untimely when filed in May 2013. As\\n\\nMs. S. concedes, these claims alleged violations that Ms. S. knew\\n\\nor should have known about during school years 2009-2010 and 2010-\\n\\n2011. The claims were more than two years old when filed, and the\\n\\nversion of MUSER in force in May 2013 stated that the statute of\\n\\nlimitations was two years. MUSER §§ XVI.5.A(2), XVI.13.E. The\\n\\ndistrict court erred in ruling that Ms. S.'s claims were timely.\\n\\n We have no reason to reach the state law issue of whether\\n\\nthe MDOE complied with MAPA in promulgating the 2010 amendments to\\n\\nMUSER. It does not affect the outcome of the case. If there were\\n\\nno state law procedural errors during the rulemaking or if the\\n\\nerrors were insubstantial or harmless, then MUSER's statute of\\n\\nlimitations was validly set at two years as a matter of state\\n\\nprocedural law. See 5 Me. Rev. Stat. Ann. § 8058(1). Likewise,\\n\\nif procedural errors were to render the change from four to two at\\n\\n§ XVI.13.E void under MAPA, then we would conclude that Maine\\n\\n\\n - 19 -\\n\\nlacked a valid \\\"explicit time limitation\\\" and so the federal\\n\\ndefault, also set at two years, would apply. See 20 U.S.C.\\n\\n§§ 1415(b)(6)(B); 1415(f)(3)(C) (emphasis added).\\n\\n The dissent concedes that the IDEA sets a single time\\n\\nlimitations period for due process hearings; that MUSER \\\"is\\n\\nintended to track the federal law\\\"; and (as does Ms. S.) that the\\n\\ntime limit at § XVI.5.A(2) was validly changed to two years during\\n\\nthe 2010 rulemaking. Nonetheless, the dissent rejects our\\n\\nconclusion that, if there were invalidating procedural errors, the\\n\\nfederal default would step in. It protests that we should not\\n\\napply the federal default because the IDEA does not require states\\n\\nto adopt the federal limitations period. That is true, but it is\\n\\nbeside the point here. MDOE has consistently taken the position\\n\\nthat MUSER's timing provisions parallel the IDEA's in structure.\\n\\nSignificantly, during the 2010 rulemaking, MDOE's concise summary\\n\\nin the rulemaking Notice explained that \\\"the statute of limitations\\n\\nfor due process hearings will be changed to the federal standard\\n\\nof two years.\\\" That is, MDOE has always viewed MUSER's statute of\\n\\nlimitations as tracking the federal law's.8 The IDEA only provides\\n\\n\\n 8 Although the dissent agrees that MUSER tracks the\\nfederal law, it suggests that MDOE has not always held this view.\\nIt embraces Ms. S.'s unsupported assertion that a 2011 decision by\\nan MDOE hearing officer, which, in dicta, described § XVI.5.A(2)\\nand § XVI.13.E as distinct, represented the accepted understanding\\namong MDOE hearing officers. But MDOE emphasizes that Ms. S. has\\npointed to no other, similar statements by hearing officers. And\\neven if she had, MDOE, whose hearing officers are independent, cf.\\n\\n\\n - 20 -\\n\\nfor one statute of limitations,9 so it follows that if the 2010\\n\\nrulemaking somehow left Maine with two different limitations\\n\\nperiods, the state lacked its intended \\\"explicit time limitation,\\\"\\n\\nand the federal default should govern.\\n\\n In short, a two-year statute of limitations was in force\\n\\nin 2013 when MS. S. filed her due process hearing request and that\\n\\nrequest was therefore untimely.\\n\\nD. Specific Misrepresentation Exception\\n\\n Ms. S. finally argues that, even if a two-year statute\\n\\nof limitations applies, her claims should be allowed under the\\n\\nspecific misrepresentation exception. Ms. S. claims that she\\n\\nfailed to file earlier because of statements by the district that\\n\\nB.S.'s academic performance made him ineligible for IDEA services.\\n\\nAs Maine has implemented the IDEA, academic as well as \\\"functional\\\"\\n\\nperformance determine eligibility. MUSER § II.10-II.11; see also\\n\\nMr. I v. MSAD No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (describing\\n\\n\\n\\n\\nMUSER § XVI.4.A(4)(c) (requiring the state to enforce due process\\nhearing decisions), says that it has never adopted the view\\nexpressed in the hearing officer's 2011 dicta. MDOE is best\\npositioned to state its views.\\n 9 Contrary to the dissent's suggestion, it is immaterial\\nto this case that the Third Circuit's decision in G.L. holding\\nthat the IDEA contains a single time limitation for due process\\nhearings post-dated the 2010 rulemaking. G.L. held, as we do\\ntoday, that the IDEA has contained a single statute of limitations\\nsince the relevant provisions' enactment in 2004.\\n\\n\\n - 21 -\\n\\nhow federal and state regulations interact to define IDEA-eligible\\n\\ndisabilities).\\n\\n The district court, in its first decision, determined\\n\\nthat Ms. S. did not qualify for the exception because no\\n\\nmisrepresentations had occurred. We declined to consider the issue\\n\\nthen. Ms. S. I, 829 F.3d at 113. Ms. S. does not cross appeal it\\n\\nhere but raises it as an alternative ground for relief.\\n\\n The record reveals no misrepresentations –- intentional\\n\\nor otherwise. The school district never told Ms. S. that academic\\n\\nperformance alone determined eligibility. Rather, district\\n\\nemployees, as the record and the district court's first decision\\n\\nshow, discussed B.S.'s academic performance alongside other\\n\\nfactors, like his social, behavioral, and emotional development.\\n\\nWe hold that Ms. S.'s claims regarding B.S.'s ninth and tenth grade\\n\\nyears are not allowed under the specific misrepresentation\\n\\nexception to MUSER's statute of limitations.\\n\\n III.\\n\\n We reverse and remand to the district court with\\n\\ninstructions to dismiss with prejudice.\\n\\n\\n\\n -Dissenting Opinion Follows-\\n\\n\\n\\n\\n - 22 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":473,"cells":{"id":{"kind":"number","value":4591741,"string":"4,591,741"},"name":{"kind":"string","value":"DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR FFMLT TRUST 2005-FF2, Mortgage Pass-Through Certificates, Series 2005-FF2, Plaintiff, Appellant/Cross-Appellee, v. Jennifer L. PIKE, Defendant, Appellee/Cross-Appellant."},"name_abbreviation":{"kind":"string","value":"Deutsche Bank Nat'l Trust Co. v. Pike"},"decision_date":{"kind":"string","value":"2019-02-19"},"docket_number":{"kind":"string","value":"17-1815"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Lipez, Thompson\", \"parties\": \"\", \"opinions\": [{\"author\": \"LIPEZ, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 17-1815, 17-1936\\n\\n\\n DEUTSCHE BANK NATIONAL TRUST COMPANY,\\n Trustee for FFMLT Trust 2005-FF2,\\n Mortgage Pass-Through Certificates, Series 2005-FF2,\\n\\n Plaintiff, Appellant/Cross-Appellee,\\n\\n v.\\n\\n JENNIFER L. PIKE,\\n\\n Defendant, Appellee/Cross-Appellant.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Lipez, and Thompson,\\n Circuit Judges.\\n\\n\\n Kevin P. Polansky, with whom Christine M. Kingston and Nelson\\nMullins Riley Scarborough LLP were on brief, for appellant.\\n Stephen T. Martin, with whom The Law Offices of Martin &\\nHipple, PLLC was on brief, for appellee.\\n\\n\\n February 19, 2019\\n\\f LIPEZ, Circuit Judge. In this diversity case, Deutsche\\n\\nBank National Trust Company contends that the district court erred\\n\\nin concluding that its mortgage interest in a property in New\\n\\nLondon, New Hampshire, is subject to a homestead right of the\\n\\nproperty's resident, Jennifer Pike. In a cross-appeal, Pike\\n\\ncontends that the district court erred in denying her post-judgment\\n\\nmotion for attorney's fees. After careful review, we affirm both\\n\\nthe rejection of Deutsche Bank's claims and the denial of Pike's\\n\\nrequest for attorney's fees.\\n\\n I.\\n\\nA. Factual Background\\n\\n William and Jennifer Pike were married in 2000.1 In\\n\\n2001, William bought the property at 34 Dogwood Lane in New London\\n\\n(\\\"the Property\\\"). Only William was listed on the deed, but\\n\\nJennifer continuously resided at the address from the time of\\n\\npurchase through the filing of the present suit. In 2003, William\\n\\nobtained a loan from New Century Mortgage Corporation secured by\\n\\na mortgage on the Property. Both William's and Jennifer's\\n\\nsignatures were on this mortgage, which included a provision\\n\\nstating that \\\"[b]orrower[] and [b]orrower's spouse . . . release\\n\\nall rights of homestead in the Property.\\\" Jennifer disputes that\\n\\n\\n\\n\\n 1For ease of reference, we will refer to William Pike as\\n\\\"William\\\" and Jennifer Pike as \\\"Jennifer.\\\"\\n\\n\\n - 2 -\\n\\fshe signed the New Century mortgage and asserts that she only later\\n\\nbecame aware of its existence.\\n\\n In late 2004, William obtained another loan, secured by\\n\\nthe Property, from First Franklin Financial Corporation, pursuant\\n\\nto which he again waived his homestead right. The parties agree\\n\\nthat William did not obtain the First Franklin loan through fraud\\n\\nor other egregious misconduct. Jennifer did not sign the note or\\n\\nmortgage.2 A few months later, the New Century loan balance was\\n\\npaid off and that mortgage was discharged.\\n\\n The Pikes subsequently executed several transfers of the\\n\\nProperty between William, Jennifer, and a family trust. The\\n\\nProperty was deeded back to William in 2007.3 The First Franklin\\n\\nmortgage was assigned to Deutsche Bank in 2009.4\\n\\n The Pikes were divorced by decree on July 3, 2013. The\\n\\ndecree included the following provision regarding the Property\\n\\n\\n\\n\\n 2 Although the First Franklin mortgage document stipulates\\nthat the borrower and the \\\"borrower's spouse\\\" release their\\nhomestead rights, the parties appear to assume that this provision\\nwould not be effective against a non-signatory spouse, and we\\nproceed on that assumption.\\n\\n 3 William filed for bankruptcy subsequent to these transfers,\\nbut the parties do not contend that his bankruptcy is relevant to\\nthe issues on appeal.\\n\\n 4 The appellant's full name is Deutsche Bank National Trust\\nCompany, Trustee for FFMLT Trust 2005 FF2, Mortgage Pass-Through\\nCertificates, Series 2005-FF2.\\n\\n\\n - 3 -\\n\\f(strikethroughs in original; initialed, handwritten addition in\\n\\nitalics):\\n\\n 14. Marital Homestead:\\n\\n A. Jennifer Pike is awarded the exclusive use and\\n\\n possession of the marital homestead located at 34\\n\\n Dogwood Lane, New London, New Hampshire free and clear\\n\\n of any interest of William Pike.\\n\\n B. Jennifer may remain in the home until it goes\\n\\n into foreclosure, or [their son] graduates high school.\\n\\n C. If the house does not go [into] foreclosure and\\n\\n the parties can sell the home, the parties shall list\\n\\n the house for sale once [their son] graduates high\\n\\n school. The Parties will share equally any equity in\\n\\n the home.\\n\\n D. The Parties will share equally the cost of any\\n\\n necessary home repairs over $500. If a repair is\\n\\n necessary, Jennifer will inform William of the repair\\n\\n via email and provide him an explanation of the repair\\n\\n needed and include a quote for the work, if possible.\\n\\n William will forward his share of the repair cost to the\\n\\n contractor directly if possible. If that is not\\n\\n possible, he will give his share of the repair cost to\\n\\n Jennifer within 30 days of the repair. [With respect to\\n\\n repairs necessary to preserve the habitability of the\\n\\n\\n - 4 -\\n\\f house, Jennifer will give notice to Bill of the need,\\n\\n and upon Bill's review, and inspection, and agreement\\n\\n that the repair is necessary, Bill shall share up to 50%\\n\\n of the cost of the Repair.]\\n\\nThe decree also provides, \\\"[e]xcept as otherwise provide[d]\\n\\nherein, each party shall sign and deliver to the other party any\\n\\ndocument that is needed to fulfill or accomplish the terms of this\\n\\nDecree within thirty (30) days of the request to do so.\\\"\\n\\n Deutsche Bank began foreclosure proceedings on the\\n\\nProperty on July 11, 2013. About two weeks later -- on July 26 -\\n\\n- William deeded the Property to Jennifer, and the deed was\\n\\nrecorded shortly thereafter. The deed states, \\\"[t]his conveyance\\n\\nis in conformance with [the] divorce decree in the Matter of\\n\\nJennifer Pike and William T. Pike, Jr.\\\"\\n\\n Jennifer subsequently filed a complaint in state court\\n\\nasserting a homestead right in the Property and seeking to enjoin\\n\\nDeutsche Bank from foreclosing. The state court entered summary\\n\\njudgment in Deutsche Bank's favor after determining that the Bank\\n\\nhad standing to foreclose, and that Jennifer's assertion of a\\n\\nhomestead right was premature. The New Hampshire Supreme Court\\n\\naffirmed. See Pike v. Deutsche Bank Nat'l Tr. Co., 121 A.3d 279\\n\\n(N.H. 2015).\\n\\n\\n\\n\\n - 5 -\\n\\fB. Procedural Background\\n\\n Shortly after the conclusion of the litigation in state\\n\\ncourt, Deutsche Bank filed this suit in federal court seeking a\\n\\ndeclaratory judgment either that its interest in the Property is\\n\\nnot subject to Jennifer's homestead right (Count I), or that it is\\n\\nentitled to equitable subrogation \\\"as to the amount it paid to\\n\\ndischarge the prior mortgage\\\" (Count II). In support of its\\n\\nequitable subrogation claim, Deutsche Bank contends that, as\\n\\nsuccessor to First Franklin, it is entitled to step into the shoes\\n\\nof New Century -- the 2003 lender -- and benefit from Jennifer's\\n\\nwaiver of her homestead right in the New Century mortgage because\\n\\nfunds from the First Franklin loan -- obtained in 2004 -- were\\n\\nused to pay off the New Century loan. Jennifer pleaded\\n\\ncounterclaims asserting the priority of her homestead right over\\n\\nDeutsche Bank's interest.5 The parties eventually cross-moved for\\n\\nsummary judgment.\\n\\n Jennifer argued that she had a homestead right in the\\n\\nProperty from the date of its purchase by virtue of her marriage\\n\\nto William and that the divorce decree did not automatically\\n\\nterminate her right. She also argued that Deutsche Bank could not\\n\\ndemonstrate the presence of every element required for equitable\\n\\nsubrogation under New Hampshire law. In particular, Jennifer\\n\\n\\n 5\\n Jennifer later voluntarily dismissed counterclaims for\\nintentional and negligent infliction of emotional distress.\\n\\n\\n - 6 -\\n\\fasserted that there was a material factual dispute concerning\\n\\nwhether the First Franklin loan funds were used to pay off the New\\n\\nCentury loan. She further argued that it would be unjust for\\n\\nDeutsche Bank to rely on the homestead waiver in the New Century\\n\\nmortgage given her contention that she had not in fact signed that\\n\\nmortgage.\\n\\n For its part, Deutsche Bank argued that Jennifer's\\n\\nhomestead right in the Property was extinguished or waived by the\\n\\ntransfers after its purchase -- that is, the transfers of the\\n\\nProperty between William, Jennifer, and a family trust before it\\n\\nwas deeded back to William in 2007 -- or by the divorce decree.\\n\\nAs to equitable subrogation, Deutsche Bank contended that all\\n\\nnecessary elements were satisfied, and that Jennifer could not\\n\\ncontest her signature on the New Century mortgage because she had\\n\\nnot done so in the prior state litigation.\\n\\n The district court concluded that factual disputes\\n\\nremained concerning the effect of the divorce decree, and it\\n\\ntherefore denied the parties' cross-motions for summary judgment\\n\\nand scheduled a bench trial. In her pretrial briefing, Jennifer\\n\\nargued for the first time that Deutsche Bank could not invoke\\n\\nequitable subrogation because it had not shown that William\\n\\nobtained the First Franklin loan by fraud or other egregious\\n\\nmisconduct. In response, Deutsche Bank argued that fraud is not\\n\\na precondition to equitable subrogation under New Hampshire law.\\n\\n\\n - 7 -\\n\\f In a pretrial order issued without prior notice to the\\n\\nparties, the district court explained that it viewed the\\n\\napplicability of equitable subrogation as \\\"an issue of law that\\n\\ncan be resolved without further factual development.\\\"\\n\\nAccordingly, the court ruled that, \\\"as a matter of [New Hampshire]\\n\\nlaw, the circumstances in this case do not meet the threshold\\n\\nrequirement of fraud or misconduct that would support the use of\\n\\nequitable subrogation to overcome the protections provided by\\\" the\\n\\nhomestead right.\\n\\n The district court also cancelled the bench trial on the\\n\\nremaining issue concerning the effect of the divorce decree on\\n\\nJennifer's homestead right. However, it granted Deutsche Bank's\\n\\nrequest to further brief the equitable subrogation issue and agreed\\n\\nto reconsider the viability of the claim. The court further stated\\n\\nthat the bench trial would be rescheduled \\\"[i]f the equitable\\n\\nsubrogation claim is found to be viable.\\\"\\n\\n Deutsche Bank then moved for reconsideration of the\\n\\nequitable subrogation decision, arguing that fraud is not an\\n\\nelement of equitable subrogation and that, in any event, Jennifer\\n\\nhad forfeited the fraud argument by not raising it earlier. The\\n\\ndistrict court denied the motion. Notably, the court directly\\n\\nengaged with Deutsche Bank's arguments instead of taking the\\n\\nstandard approach to a motion for reconsideration and considering\\n\\n\\n\\n\\n - 8 -\\n\\fonly whether the Bank had identified flaws in the original\\n\\ndecision.\\n\\n After the parties submitted briefs on whether the\\n\\ndivorce extinguished Jennifer's homestead right, the district\\n\\ncourt issued a final order holding that (1) Jennifer's homestead\\n\\nright was not extinguished by the divorce, (2) her homestead right\\n\\ntakes priority over Deutsche Bank's mortgage, and, hence, (3)\\n\\n\\\"Jennifer may assert her homestead interest in the [P]roperty\\n\\n. . . if and when Deutsche Bank forecloses.\\\" The court, however,\\n\\ndismissed Jennifer's quiet title counterclaim because she had not\\n\\ndemonstrated that \\\"title to the [P]roperty can be settled in her\\n\\nexclusive of Deutsche Bank's mortgage interest.\\\" Deutsche Bank\\n\\ntimely appealed, contending that the district court erred in (1)\\n\\n\\\"sua sponte\\\" dismissing the Bank's equitable subrogation claim on\\n\\nthe basis that it had not demonstrated the First Franklin mortgage\\n\\nwas acquired by fraud, and (2) ruling that Jennifer has a homestead\\n\\nright superior to the Bank's mortgage.\\n\\n Jennifer subsequently moved for attorney's fees and\\n\\ncosts pursuant to Federal Rule of Civil Procedure 54(d). The court\\n\\ngranted her uncontested request for costs but denied her request\\n\\nfor attorney's fees. We consolidated Jennifer's timely appeal\\n\\nwith Deutsche Bank's appeal.\\n\\n\\n\\n\\n - 9 -\\n\\f II.\\n\\nA. The District Court's \\\"Sua Sponte\\\" Rulings\\n\\n Deutsche Bank contends that the district court erred in\\n\\n\\\"sua sponte\\\" (1) dismissing its claim for a declaratory judgment\\n\\nthat it is entitled to equitable subrogation, and (2) cancelling\\n\\nthe bench trial. In other words, Deutsche Bank faults the court\\n\\nfor taking these actions on its own initiative and without prior\\n\\nnotice to the parties.\\n\\n The district court arguably caught Deutsche Bank\\n\\nunawares when it dismissed the equitable subrogation claim based\\n\\non the pretrial briefing. However, even assuming error, we discern\\n\\nno prejudice to the Bank. See Watchtower Bible & Tract Soc'y of\\n\\nN.Y., Inc. v. Municipality of San Juan, 773 F.3d 1, 13 (1st Cir.\\n\\n2014) (\\\"[A] sua sponte dismissal will not be set aside where the\\n\\naggrieved party cannot show any prejudice.\\\"). Deutsche Bank\\n\\naddressed Jennifer's argument that fraud was required to apply\\n\\nequitable subrogation in its pretrial briefs and was given the\\n\\nopportunity to provide additional briefing after the court\\n\\ndismissed the equitable subrogation claim. Although Deutsche\\n\\nBank's post-dismissal brief was styled as a motion for\\n\\nreconsideration, the district court did not hold Deutsche Bank to\\n\\nthe stringent standard for this type of motion. See Palmer v.\\n\\nChampion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (noting that a\\n\\nparty seeking reconsideration of a legal ruling must demonstrate\\n\\n\\n - 10 -\\n\\fthat \\\"the rendering court committed a manifest error of law\\\").\\n\\nRather, the district court addressed the merits of Deutsche Bank's\\n\\narguments and again concluded that equitable subrogation did not\\n\\napply as a matter of law. Thus, even assuming the arguable\\n\\nproposition that the court erred by initially dismissing the\\n\\nequitable subrogation claim sua sponte, the court adequately\\n\\ncorrected any error.6\\n\\n Regarding the district court's decision to cancel the\\n\\nbench trial, the simple fact is that the district court did so\\n\\nafter a pretrial conference at which, according to the district\\n\\ncourt, \\\"counsel and the court agreed that there are no factual\\n\\nissues remaining in the case for the bench trial.\\\" To the extent\\n\\nDeutsche Bank now contends that the court misunderstood or\\n\\nmisrepresented the Bank's position, it has waived that argument by\\n\\nfailing to raise it before the district court and by failing to\\n\\nproperly develop the record on appeal. See Barilaro v. Consol.\\n\\nRail Corp., 876 F.2d 260, 263 (1st Cir. 1989) (stating that we\\n\\n\\\"cannot use counsel's allegations regarding what occurred at the\\n\\npretrial conference as grounds for appeal\\\").\\n\\n\\n\\n\\n 6 We are unconvinced by Deutsche Bank's analogy of the\\ndistrict court's actions to those of the court in Berkovitz v.\\nHBO, Inc., 89 F.3d 24 (1st Cir. 1996). Unlike in Berkovitz, the\\ndistrict court did not substantially change the rationale for its\\nruling from the initial dismissal to the denial of Deutsche Bank's\\nmotion for reconsideration. See id. at 30-31.\\n\\n\\n - 11 -\\n\\fB. Jennifer's Homestead Right\\n\\n Deutsche Bank argues that the district court erred in\\n\\ndetermining that its mortgage interest is subject to Jennifer's\\n\\nhomestead right in the Property. Before this court, the parties\\n\\ndo not appear to dispute, putting aside the equitable subrogation\\n\\nissue, that Jennifer had a homestead right in the Property, by\\n\\nvirtue of her marriage to William and continuous occupancy, at\\n\\nleast until the date of the divorce decree.7 Deutsche Bank contends\\n\\nthat she lost her homestead right either because it was terminated\\n\\nby the divorce decree or because she waived the right through her\\n\\nacceptance of certain language in the decree. The district court\\n\\nin effect concluded that Jennifer retained her homestead right\\n\\nbecause the decree transferred ownership of the Property to her,\\n\\nwithout the need for any subsequent conveyance. We review the\\n\\ndistrict court's conclusion, based on its interpretation of the\\n\\ndivorce decree and New Hampshire law, de novo.8\\n\\n\\n\\n 7 The district court determined that none of the transfers\\nprior to the divorce extinguished Jennifer's homestead right.\\nDeutsche Bank does not press the issue on appeal.\\n 8 Under New Hampshire law, \\\"[q]uestions of intent [in a\\ndivorce decree] are to be resolved by the trier of fact, whose\\nfindings will be upheld if supported by the evidence, while the\\nmeaning of the language in the agreement is a matter of law.\\\"\\nMiller v. Miller, 578 A.2d 872, 873 (N.H. 1990) (citation omitted)\\n(internal quotation marks omitted). We take this to mean that\\nwhere, as here, the trial court's interpretation of the parties'\\nintent is based on the face of the agreement, the appellate court\\nreviews this interpretation de novo as a conclusion of law.\\n\\n\\n\\n - 12 -\\n\\f 1. New Hampshire's Homestead Law\\n\\n The New Hampshire homestead right, or homestead\\n\\nexemption, protects $120,000 of the value of a person's homestead\\n\\nfrom creditors, N.H. Rev. Stat. Ann. § 480:1, with certain\\n\\nstatutorily defined exceptions, see id. § 480:4, which the parties\\n\\ndo not contend are relevant to this appeal.9 A homestead is the\\n\\nplace a person occupies as his or her home; \\\"actual residency or\\n\\noccupancy,\\\" excluding temporary absences, is essential to the\\n\\ncreation of a homestead because \\\"[t]he purpose of the homestead\\n\\nexemption is 'to secure to debtors and their families, the shelter\\n\\nof the homestead roof[,] not to exempt mere investments in real\\n\\nestate, or the rents and profits derived therefrom.'\\\" Stewart v.\\n\\nBader, 907 A.2d 931, 943 (N.H. 2006)(quoting Austin v. Stanley, 46\\n\\nN.H. 51, 52 (1865)). The \\\"shelter of the homestead roof\\\" does not\\n\\nmean a person is entitled to keep his or her home in all\\n\\ncircumstances. Rather, in the event of a forced sale, a person\\n\\n\\n\\n\\n 9\\n Before the district court, the parties appeared to dispute\\nwhether Jennifer could claim $120,000 or only the lesser amount --\\n$30,000 -- that applied at the time she first acquired a homestead\\nright in the Property. See In re Bartlett, 168 B.R. 488, 494-98\\n(Bankr. D.N.H. 1994) (discussing whether an increase in the\\nstatutory homestead amount can be \\\"retroactively\\\" applied). We\\nleave that issue for the appropriate court to decide if and when\\nJennifer seeks a set-off in the amount of her homestead right.\\n\\n\\n - 13 -\\n\\fwith a homestead right is entitled to a set-off in the statutorily\\n\\ndefined amount.10 See N.H. Rev. Stat. Ann. § 480:7.\\n\\n When a married couple resides together in a home, the\\n\\nhomestead right \\\"extends to . . . both spouses, even when only one\\n\\nspouse legally owns the homestead.\\\" Maroun v. Deutsche Bank Nat'l\\n\\nTr. Co., 109 A.3d 203, 208 (N.H. 2014) (citing N.H. Rev. Stat.\\n\\nAnn. § 480:3-a); see also N.H. Rev. Stat. Ann. § 529:20-a. The\\n\\nhomestead right of a property owner's spouse is established once\\n\\nhe or she physically occupies the subject property. Walbridge v.\\n\\nEstate of Beaudoin, 48 A.3d 964, 966 (N.H. 2012). The spouse's\\n\\nhomestead right is then ordinarily exempt from any subsequent\\n\\nattachment or encumbrance; however, the right is not exempt from\\n\\nany attachment or encumbrance that predates its establishment.\\n\\nId.; see also Mason v. Wells Fargo Bank, N.A., No. 14-cv-77-JL,\\n\\n2014 WL 2737601, at *3 (D.N.H. June 17, 2014) (concluding that a\\n\\nperson who established a homestead right after the execution of a\\n\\nmortgage on a property \\\"took the property subject to\\\" the mortgage\\n\\nand \\\"cannot invoke her homestead right as a defense to enforcement\\n\\nof the mortgage\\\").\\n\\n\\n\\n\\n 10 Alternatively, a person with a homestead right can seek an\\ninjunction to prevent a forced sale if the equity in the home is\\nnot sufficient to cover both the creditor's claim and the homestead\\nright. See, e.g., Deyeso v. Cavadi, 66 A.3d 1236, 1238 (N.H.\\n2013).\\n\\n\\n - 14 -\\n\\f The homestead right also can be waived, that is,\\n\\nvoluntarily or intentionally relinquished. Maroun, 109 A.3d at\\n\\n228. Although evidence of waiver must be \\\"unequivocal,\\\" \\\"if a\\n\\nmortgage document is signed by both spouses, 'with the formalities\\n\\nrequired for the conveyance of land,' no further evidence of waiver\\n\\nis required.\\\" Id. (quoting N.H. Rev. Stat. Ann. § 480:5-a).\\n\\n 2. Property Distribution by Divorce Decree\\n\\n In New Hampshire, \\\"[t]he question of whether and to what\\n\\nextent property rights have been transferred from one person to\\n\\nanother generally is resolved upon a determination of the\\n\\ntransferor's intent.\\\" Mamalis v. Bornovas, 297 A.2d 660, 662 (N.H.\\n\\n1972). When property rights are transferred in a stipulated\\n\\nagreement, such as in the form of a stipulated divorce decree,\\n\\n\\\"absent fraud, duress, mutual mistake, or ambiguity, the parties'\\n\\nintentions will be gleaned from the face of the agreement.\\\" Miller\\n\\nv. Miller, 578 A.2d 872, 873 (N.H. 1990). Courts consider \\\"the\\n\\nplain meaning of the language viewed in the context of the entire\\n\\ndecree[,]\\\" Matter of Oligny, 153 A.3d 194, 196 (N.H. 2016), and\\n\\nconstrue \\\"[s]ubsidiary clauses . . . so as not to conflict with\\n\\nthe primary purpose of the decree,\\\" id. (quoting Bonneville v.\\n\\nBonneville, 702 A.2d 823, 825 (N.H. 1997)). See also Sommers v.\\n\\nSommers, 742 A.2d 94, 99 (N.H. 1999) (\\\"We consider the intent of\\n\\nthe parties as expressed in the language of the stipulation.\\\").\\n\\n\\n\\n\\n - 15 -\\n\\f Broadly speaking, a major purpose of a divorce decree\\n\\n\\\"is to establish a final and equitable distribution of the marital\\n\\nproperty.\\\" Bonneville, 702 A.2d at 825; see also McSherry v.\\n\\nMcSherry, 606 A.2d 311, 313 (N.H. 1992) (\\\"[A] property settlement\\n\\nin a divorce decree is 'a final distribution of a sum of money or\\n\\na specific portion of the spouses' property . . . [and] is not\\n\\nsubject to judicial modification on account of changed\\n\\ncircumstances.\\\" (alteration in original) (quoting Stebbins v.\\n\\nStebbins, 438 A.2d 295, 297 (N.H. 1981))); see also N.H. Rev. Stat.\\n\\nAnn. § 458:16-a (providing that \\\"[w]hen a dissolution of a marriage\\n\\nis decreed, the court may order an equitable division of property\\n\\nbetween the parties\\\" and specifying that \\\"[p]roperty shall include\\n\\nall tangible and intangible property and assets, real or personal,\\n\\nbelonging to either or both parties, whether title to the property\\n\\nis held in the name of either or both parties\\\"). Given that\\n\\ndivorce decrees establish a final division of property, it is\\n\\nunsurprising that such decrees can effectuate a conveyance of\\n\\npersonal or real property. See Swett v. Swett, 49 N.H. 264, 264\\n\\n(1870) (holding that an interest in real estate \\\"vested in the\\n\\nwife, 'by the mere force of the [divorce] decree,' 'as effectually\\n\\nas the same could be done by any conveyance of the husband\\n\\nhimself'\\\" (quoting Whittier v. Whittier, 31 N.H. 452, 458 (1855)));\\n\\nsee also Johnson v. Coe, 697 A.2d 939, 943 (N.H. 1997) (\\\"The award\\n\\nof the . . . house to the plaintiff in the divorce decree was a\\n\\n\\n - 16 -\\n\\fproperty settlement and, as such, not modifiable.\\\"); Bonneville,\\n\\n702 A.2d at 826 (holding that a stock transfer in a divorce decree\\n\\noccurred \\\"by operation of law\\\"); Sommers, 742 A.2d at 99 (holding\\n\\nthat language in a divorce decree \\\"creat[ed] an immediate property\\n\\ninterest\\\" in a vehicle).\\n\\n Not all conveyances in a divorce decree are\\n\\nself-executing. That is, a stipulated conveyance in a divorce\\n\\ndecree may require a future occurrence or further action by the\\n\\nparties (a condition precedent) to take effect. See Spellman v.\\n\\nSpellman, 614 A.2d 1054, 1055 (N.H. 1992). However, \\\"[b]ecause\\n\\nconditions precedent are disfavored, [courts] infer that the\\n\\nparties intended a condition precedent only where the plain\\n\\nlanguage of the decree or stipulation requires such a\\n\\nconstruction.\\\" Sommers, 742 A.2d at 99 (emphasis added); see also\\n\\nUnited States v. Baker, No. 13-cv-213-PB, 2014 WL 4199120, at *3\\n\\n(D.N.H. Aug. 22, 2014)(\\\"The husband and wife's subsequent failure\\n\\nto comply with a provision of the divorce judgment -- in this case,\\n\\nthe execution and recording of a deed to the . . . properties --\\n\\nwill not invalidate or delay the conveyance unless the parties\\n\\nclearly intended for the provision to serve as a condition\\n\\nprecedent.\\\"). Therefore, under New Hampshire law, a divorce decree\\n\\nmay effectuate an immediate property transfer where its language\\n\\nplainly demonstrates an intention to do so. See Baker,\\n\\n2014 WL 4199120, at *3 (\\\"When a 'stipulation between the parties\\n\\n\\n - 17 -\\n\\f. . . incorporated and merged into the divorce decree' 'clearly\\n\\nand affirmatively expresse[s] their intention' to convey a real\\n\\nproperty interest, that interest vests in the grantee 'on the\\n\\neffective date of the divorce decree.'\\\" (alteration and omission\\n\\nin original) (quoting Mamalis, 297 A.2d at 663)).\\n\\n 3. Application of the Law\\n\\n The district court correctly determined that Jennifer\\n\\nretained her homestead right under the plain language of the\\n\\ndivorce decree, which clearly indicates the parties' intention\\n\\nthat ownership of the Property immediately transfer to Jennifer:\\n\\n\\\"Jennifer Pike is awarded the marital homestead located at 34\\n\\nDogwood Lane, New London, New Hampshire[,] free and clear of any\\n\\ninterest of William Pike.\\\" This declarative statement, with no\\n\\nmention of any contingency or condition precedent, is the type of\\n\\nlanguage that the New Hampshire Supreme Court has read to\\n\\neffectuate an immediate property transfer. See Bonneville, 702\\n\\nA.2d at 826; Sommers, 742 A.2d at 99; cf. Spellman, 614 A.2d at\\n\\n236-37 (concluding that a stipulated award of the marital home was\\n\\nnot \\\"self-executing\\\" because the language of the stipulation\\n\\nspecifically made the transfer contingent on, among other things,\\n\\nan appraisal of the home).\\n\\n The other provisions regarding the \\\"marital homestead\\\"\\n\\ndo not negate the parties' clear intent to transfer ownership to\\n\\nJennifer. See Matter of Oligny, 153 A.3d at 196 (stating that\\n\\n\\n - 18 -\\n\\f\\\"[s]ubsidiary clauses\\\" must be read \\\"so as not to conflict with\\n\\nthe primary purpose of the decree\\\") (quoting Bonneville, 702 A.2d\\n\\nat 825). Agreeing to share the proceeds from a potential sale of\\n\\nthe home once their son graduates high school, for example, is not\\n\\nincompatible with Jennifer's ownership. Nor does the decree's\\n\\ngeneral provision that the parties \\\"shall sign and deliver to the\\n\\nother party any document that is needed to fulfill or accomplish\\n\\nthe terms of this Decree\\\" evince an intention to make a deed\\n\\ntransfer a condition precedent to Jennifer's ownership of the\\n\\nProperty.11\\n\\n There also is no unequivocal evidence that Jennifer\\n\\nwaived her homestead right by agreeing to certain language in the\\n\\ndecree. See Maroun, 109 A.3d at 228-29. Deutsche Bank makes much\\n\\nof the fact that the divorce decree mentions the possibility of a\\n\\nforeclosure on the Property. As discussed above, however, a\\n\\npotential foreclosure does not necessarily negate a property\\n\\nowner's homestead right. Rather, a homestead right superior to a\\n\\nmortgage may simply require the mortgagee to pay the holder of the\\n\\n\\n\\n\\n 11 The district court noted that William later deeded the\\nProperty to Jennifer in support of its conclusion that the parties\\nintended to transfer ownership of the Property to her. However,\\ncontrary to Deutsche Bank's contention, the district court did not\\nsuggest that the deed transfer was a condition precedent. It\\nexpressly held that \\\"Jennifer's right to the [P]roperty became\\neffective immediately when the divorce decree issued on July 3,\\n2013.\\\"\\n\\n\\n\\n - 19 -\\n\\fright from the proceeds of a foreclosure sale. See supra section\\n\\nII.B.1. Therefore, the decree's mention of a possible foreclosure\\n\\ndoes not indicate that Jennifer relinquished her homestead right.\\n\\nFor these reasons, the district court did not err in concluding\\n\\nthat Jennifer enjoys a homestead right in the Property with\\n\\npriority over Deutsche Bank's mortgage.\\n\\nC. Equitable Subrogation\\n\\n Deutsche Bank's equitable subrogation argument\\n\\nessentially goes as follows: First Franklin discharged the debt\\n\\nowed to New Century and thus stood to benefit from Jennifer's\\n\\nwaiver of her homestead right in the New Century mortgage. As\\n\\nsuccessor to First Franklin, Deutsche Bank can stand in First\\n\\nFranklin's shoes, and thus benefit from Jennifer's waiver. In\\n\\nother words, Deutsche Bank does not have to recognize Jennifer's\\n\\nclaimed homestead right.12\\n\\n Deutsche Bank further contends that the district court\\n\\nerred in dismissing the Bank's equitable subrogation claim because\\n\\n(1) Jennifer waived the argument that equitable subrogation cannot\\n\\nbe applied to defeat a homestead right in the absence of fraud,\\n\\nand (2) New Hampshire law does not, in fact, require fraud. As to\\n\\n\\n\\n 12 To be precise, Deutsche Bank argues that it is entitled\\nto equitable subrogation \\\"as to the amount that [First Franklin]\\npaid to discharge the [New Century] [m]ortgage.\\\" In practical\\nterms, this would mean that Deutsche Bank does not have to pay\\nJennifer anything in the event of a foreclosure.\\n\\n\\n - 20 -\\n\\f\\\"waiver,\\\" we are unconvinced that Jennifer \\\"waived\\\" or \\\"forfeited\\\"\\n\\nher legal argument given that she raised it at a time when Deutsche\\n\\nBank still had an opportunity to meaningfully respond and before\\n\\nthe district court had rendered judgment.13 As to the merits of\\n\\nher claim, we must first outline the relevant law in New Hampshire.\\n\\n 1. Background Law\\n\\n Under New Hampshire law, equitable subrogation \\\"is a\\n\\nbroad doctrine [that] 'applies where one who has discharged the\\n\\ndebt of another may, under certain circumstances, succeed to the\\n\\nrights and position of the satisfied creditor.'\\\" Chase v.\\n\\nAmeriquest Mortg. Co., 921 A.2d 369, 376 (N.H. 2007) (quoting 73\\n\\nAm. Jur. 2d Subrogation § 5 (2001)). For equitable subrogation to\\n\\napply, certain conditions \\\"must be met: (1) the subrogee [the\\n\\nentity who discharged the debt] cannot have acted as a volunteer;\\n\\n(2) the subrogee must have paid a debt upon which it was not\\n\\nprimarily liable; (3) the subrogee must have paid the entire debt;\\n\\nand (4) subrogation may not work any injustice to the rights of\\n\\nothers.\\\" Id.\\n\\n\\n\\n\\n 13 Deutsche Bank specifically argues that Jennifer forfeited\\nthe fraud contention by failing to plead it as an affirmative\\ndefense, but the Bank forfeited this argument by failing to raise\\nit in its opening brief. See Sparkle Hill, Inc. v. Interstate Mat\\nCorp., 788 F.3d 25, 29 (1st Cir. 2015) (noting that arguments first\\nasserted in a reply brief ordinarily are deemed waived or\\nforfeited).\\n\\n\\n\\n - 21 -\\n\\f The subrogee has the burden of demonstrating an\\n\\nentitlement to equitable subrogation, \\\"which generally includes\\n\\npro[ving] . . . [t]he existence and applicability of equitable\\n\\nprinciples or contractual provisions as to subrogation and\\n\\nreimbursement.\\\" Wolters v. Am. Republic Ins. Co., 827 A.2d 197,\\n\\n200 (N.H. 2003) (second alteration in original) (quoting 16 L.\\n\\nRuss & T. Segalla, Couch on Insurance 3d § 222:7 (2000)).\\n\\nCrucially, the New Hampshire Supreme Court has held that equitable\\n\\nprinciples, such as equitable subrogation, \\\"may be applied to reach\\n\\nbeyond the literal language of the exceptions\\\" to the homestead\\n\\nright -- that is, to create a new exception to application of the\\n\\nhomestead right -- \\\"only when there has been fraud, deception, or\\n\\nother misconduct in the procurement of funds spent on a homestead.\\\"\\n\\nDeyeso v. Cavadi, 66 A.3d 1236, 1241 (N.H. 2013)(emphasis added).\\n\\n 2. Application of the Law\\n\\n On de novo review, we conclude that the district court\\n\\ncorrectly applied New Hampshire law and declined to apply equitable\\n\\nsubrogation to defeat Jennifer's homestead right because there was\\n\\nno \\\"fraud, deception, or other misconduct in the procurement of\\n\\nfunds spent on [the] homestead.\\\" Deyeso, 66 A.3d at 1241.14\\n\\n\\n 14\\n Although Deutsche Bank faults the district court for\\noffering a shifting rationale for its ruling, we disagree with\\nthis characterization. In both of its orders, the district court\\nread Deyeso to hold that equitable principles cannot be invoked to\\n\\\"reach beyond the literal language of the homestead exceptions\\\" in\\nthe absence of fraud. Contrary to Deutsche Bank's suggestion, the\\n\\n\\n - 22 -\\n\\fDeutsche Bank's fallback argument is that even if the district\\n\\ncourt correctly interpreted New Hampshire law, it could have --\\n\\nand should have -- exercised its equitable powers to apply\\n\\nequitable subrogation in the Bank's favor. We need not address\\n\\nthe complex question of whether and in what circumstances a federal\\n\\ncourt sitting in diversity may order equitable relief that is not\\n\\nauthorized under state law. See Guar. Tr. Co. of N.Y. v. York,\\n\\n326 U.S. 99, 106 (1945) (\\\"[A] federal court may afford an equitable\\n\\nremedy for a substantive right recognized by a State even though\\n\\na State court cannot give it.\\\"); Bogosian v. Woloohojian Realty\\n\\nCorp., 923 F.2d 898, 904 (1st Cir. 1991) (noting conflicting\\n\\ncircuit authority regarding the source of law for determining the\\n\\nequitable powers of a federal court sitting in diversity). Even\\n\\nassuming the district court had the ability to apply equitable\\n\\nsubrogation outside the parameters of New Hampshire law, it was\\n\\nnot compelled to do so, and it certainly did not abuse its\\n\\ndiscretion by declining to use its equitable powers in a manner at\\n\\nodds with state law. See Morgan v. Kerrigan, 523 F.2d 917, 921\\n\\n(1st Cir. 1975) (per curiam) (\\\"This court's review of orders issued\\n\\nin the exercise of the district court's equitable powers is limited\\n\\n\\n\\n\\ndistrict court never held that fraud is an element of equitable\\nsubrogation or a precondition to applying equitable subrogation in\\nall situations.\\n\\n\\n - 23 -\\n\\fto a determination whether there has been an abuse of\\n\\ndiscretion.\\\").15\\n\\n III.\\n\\n In her cross-appeal, Jennifer contends that she is\\n\\nentitled to attorney's fees based on a state statute and a\\n\\nprovision in the Deutsche Bank mortgage. The statute provides, in\\n\\nrelevant part, as follows:\\n\\n If a retail installment contract or evidence of\\n indebtedness provides for attorney's fees to be awarded\\n to the retail seller, lender or creditor in any action,\\n suit or proceeding against the retail buyer, borrower or\\n debtor involving the sale, loan or extension of credit,\\n such contract or evidence of indebtedness shall also\\n provide that:\\n\\n I. Reasonable attorney's fees shall be awarded to the\\n buyer, borrower or debtor if he prevails in\\n\\n (a) Any action, suit or proceeding brought by the retail\\n seller, lender or creditor; or\\n\\n (b) An action brought by the buyer, borrower or debtor[.]\\n\\nN.H. Rev. Stat. Ann. § 361-C:2 (emphases added). The Deutsche\\n\\nBank mortgage provides:\\n\\n\\n\\n\\n 15 We recognize that the district court, at various places in\\nits two orders related to equitable subrogation, seems to suggest\\nthat its hands were tied by state law. However, we understand the\\ndistrict court's rulings ultimately to rest on its determination\\nthat equity would not be served by applying equitable subrogation\\nin a situation where it would not be applied by state courts. See,\\ne.g., Deutsche Bank Nat'l Tr. Co. v. Pike, No. 15-cv-304-JD, 2017\\nWL 2608727, at *3 (D.N.H. Feb. 12, 2017) (\\\"Contrary to Deutsche\\nBank's theory, [Jennifer] would not receive a windfall through her\\nhomestead interest but instead would receive the protection\\nintended and provided by [the homestead statute].\\\").\\n\\n\\n - 24 -\\n\\f 25. Attorneys' Fees. Pursuant to . . . § 361-C:2, in\\n the event that Borrower shall prevail in (a) any action,\\n suit or proceeding, brought by Lender, or (b) an action\\n brought by Borrower, reasonable attorneys' fees shall be\\n awarded to Borrower.\\n\\n(Emphases added.) Jennifer did not sign the First Franklin, now\\n\\nDeutsche Bank, mortgage, and William is listed as the sole\\n\\n\\\"borrower.\\\" The term is not defined in the mortgage or in section\\n\\n361-C, but Jennifer concedes that she is not the \\\"borrower\\\" for\\n\\npurposes of the mortgage.\\n\\n The district court concluded that Jennifer is not\\n\\nentitled to attorney's fees under the statutory provision and the\\n\\nmortgage precisely because she \\\"is not the borrower.\\\" The court\\n\\nfurther held that even if Jennifer could be considered a \\\"debtor,\\\"\\n\\nthe statute and the mortgage provision do not apply because\\n\\nDeutsche Bank did not sue her for breach of the note or mortgage.\\n\\nNevertheless, on appeal, Jennifer presses the argument that she is\\n\\na \\\"debtor\\\" for purposes of the mortgage and, as such, is entitled\\n\\nto attorney's fees pursuant to the mortgage provision and section\\n\\n361-C:2. We generally review the district court's denial of\\n\\nattorney's fees for abuse of discretion but review any underlying\\n\\nconclusions of law de novo. In re Volkswagen & Audi Warranty\\n\\nExtension Litig., 692 F.3d 4, 13 (1st Cir. 2012).\\n\\n Deutsche Bank raises a plethora of reasons why Jennifer\\n\\nis not entitled to attorney's fees under section 361-C:2 and the\\n\\nmortgage. It suffices to say, however, that we essentially agree\\n\\n\\n - 25 -\\n\\fwith the district court's straightforward analysis.16 The court\\n\\ncorrectly determined that Jennifer is not entitled to the benefit\\n\\nof the mortgage's attorney's fees provision, which is expressly\\n\\nlimited to the \\\"borrower.\\\" Section 361-C:2 requires reciprocal\\n\\ntreatment of both sides of a debt contract -- here, the mortgagee\\n\\nand William -- but does not rewrite the mortgage's terms to render\\n\\nthe Bank responsible for the attorney's fees of a third party.\\n\\nThe district court did not commit legal error or otherwise abuse\\n\\nits discretion in denying her fee request.17\\n\\n\\n\\n\\n 16Among its other arguments, Deutsche Bank contends that the\\ndistrict court did not have jurisdiction to consider Jennifer's\\nfee request. Because Jennifer's entitlement to attorney's fees is\\neasily resolved on the merits, we do not address the jurisdictional\\nissue. See Cozza v. Network Assocs., Inc., 362 F.3d 12, 15 (1st\\nCir. 2004) (\\\"The rule is well established in this Circuit that\\nresolution of a complex jurisdictional issue may be avoided when\\nthe merits can easily be resolved in favor of the party challenging\\njurisdiction.\\\").\\n\\n 17 We note that it is somewhat disingenuous for Jennifer to\\ncontend she has rights arising under the mortgage given that she\\nhas repeatedly disavowed any connection to the mortgage, both in\\nstate court and before the district court. Courts generally do\\nnot approve of such attempts to have it both ways. See RFF Family\\nP'ship, LP v. Ross, 814 F.3d 520, 527 (1st Cir. 2016) (discussing\\nthe doctrine of judicial estoppel, which \\\"prevent[s] a litigant\\nfrom taking a litigation position that is inconsistent with a\\nlitigation position successfully asserted by him in an earlier\\nphase of the same case or in an earlier court proceeding\\\"\\n(alteration in original) (quoting Perry v. Blum, 629 F.3d 1, 8\\n(1st Cir. 2010))).\\n\\n\\n - 26 -\\n\\f ***\\n\\n For the foregoing reasons, we affirm as to both appeals.\\n\\nEach side shall bear its own costs.\\n\\n So ordered.\\n\\n\\n\\n\\n - 27 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368994/\", \"author_raw\": \"LIPEZ, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"LIPEZ"},"judge3":{"kind":"string","value":"THOMPSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591741/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR FFMLT TRUST 2005-FF2, Mortgage Pass-Through Certificates, Series 2005-FF2, Plaintiff, Appellant/Cross-Appellee, v. Jennifer L. PIKE, Defendant, Appellee/Cross-Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNos. 17-1815, 17-1936\n\n\n DEUTSCHE BANK NATIONAL TRUST COMPANY,\n Trustee for FFMLT Trust 2005-FF2,\n Mortgage Pass-Through Certificates, Series 2005-FF2,\n\n Plaintiff, Appellant/Cross-Appellee,\n\n v.\n\n JENNIFER L. PIKE,\n\n Defendant, Appellee/Cross-Appellant.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\n\n\n Before\n\n Torruella, Lipez, and Thompson,\n Circuit Judges.\n\n\n Kevin P. Polansky, with whom Christine M. Kingston and Nelson\nMullins Riley Scarborough LLP were on brief, for appellant.\n Stephen T. Martin, with whom The Law Offices of Martin &\nHipple, PLLC was on brief, for appellee.\n\n\n February 19, 2019\n\f LIPEZ, Circuit Judge. In this diversity case, Deutsche\n\nBank National Trust Company contends that the district court erred\n\nin concluding that its mortgage interest in a property in New\n\nLondon, New Hampshire, is subject to a homestead right of the\n\nproperty's resident, Jennifer Pike. In a cross-appeal, Pike\n\ncontends that the district court erred in denying her post-judgment\n\nmotion for attorney's fees. After careful review, we affirm both\n\nthe rejection of Deutsche Bank's claims and the denial of Pike's\n\nrequest for attorney's fees.\n\n I.\n\nA. Factual Background\n\n William and Jennifer Pike were married in 2000.1 In\n\n2001, William bought the property at 34 Dogwood Lane in New London\n\n(\"the Property\"). Only William was listed on the deed, but\n\nJennifer continuously resided at the address from the time of\n\npurchase through the filing of the present suit. In 2003, William\n\nobtained a loan from New Century Mortgage Corporation secured by\n\na mortgage on the Property. Both William's and Jennifer's\n\nsignatures were on this mortgage, which included a provision\n\nstating that \"[b]orrower[] and [b]orrower's spouse . . . release\n\nall rights of homestead in the Property.\" Jennifer disputes that\n\n\n\n\n 1For ease of reference, we will refer to William Pike as\n\"William\" and Jennifer Pike as \"Jennifer.\"\n\n\n - 2 -\n\fshe signed the New Century mortgage and asserts that she only later\n\nbecame aware of its existence.\n\n In late 2004, William obtained another loan, secured by\n\nthe Property, from First Franklin Financial Corporation, pursuant\n\nto which he again waived his homestead right. The parties agree\n\nthat William did not obtain the First Franklin loan through fraud\n\nor other egregious misconduct. Jennifer did not sign the note or\n\nmortgage.2 A few months later, the New Century loan balance was\n\npaid off and that mortgage was discharged.\n\n The Pikes subsequently executed several transfers of the\n\nProperty between William, Jennifer, and a family trust. The\n\nProperty was deeded back to William in 2007.3 The First Franklin\n\nmortgage was assigned to Deutsche Bank in 2009.4\n\n The Pikes were divorced by decree on July 3, 2013. The\n\ndecree included the following provision regarding the Property\n\n\n\n\n 2 Although the First Franklin mortgage document stipulates\nthat the borrower and the \"borrower's spouse\" release their\nhomestead rights, the parties appear to assume that this provision\nwould not be effective against a non-signatory spouse, and we\nproceed on that assumption.\n\n 3 William filed for bankruptcy subsequent to these transfers,\nbut the parties do not contend that his bankruptcy is relevant to\nthe issues on appeal.\n\n 4 The appellant's full name is Deutsche Bank National Trust\nCompany, Trustee for FFMLT Trust 2005 FF2, Mortgage Pass-Through\nCertificates, Series 2005-FF2.\n\n\n - 3 -\n\f(strikethroughs in original; initialed, handwritten addition in\n\nitalics):\n\n 14. Marital Homestead:\n\n A. Jennifer Pike is awarded the exclusive use and\n\n possession of the marital homestead located at 34\n\n Dogwood Lane, New London, New Hampshire free and clear\n\n of any interest of William Pike.\n\n B. Jennifer may remain in the home until it goes\n\n into foreclosure, or [their son] graduates high school.\n\n C. If the house does not go [into] foreclosure and\n\n the parties can sell the home, the parties shall list\n\n the house for sale once [their son] graduates high\n\n school. The Parties will share equally any equity in\n\n the home.\n\n D. The Parties will share equally the cost of any\n\n necessary home repairs over $500. If a repair is\n\n necessary, Jennifer will inform William of the repair\n\n via email and provide him an explanation of the repair\n\n needed and include a quote for the work, if possible.\n\n William will forward his share of the repair cost to the\n\n contractor directly if possible. If that is not\n\n possible, he will give his share of the repair cost to\n\n Jennifer within 30 days of the repair. [With respect to\n\n repairs necessary to preserve the habitability of the\n\n\n - 4 -\n\f house, Jennifer will give notice to Bill of the need,\n\n and upon Bill's review, and inspection, and agreement\n\n that the repair is necessary, Bill shall share up to 50%\n\n of the cost of the Repair.]\n\nThe decree also provides, \"[e]xcept as otherwise provide[d]\n\nherein, each party shall sign and deliver to the other party any\n\ndocument that is needed to fulfill or accomplish the terms of this\n\nDecree within thirty (30) days of the request to do so.\"\n\n Deutsche Bank began foreclosure proceedings on the\n\nProperty on July 11, 2013. About two weeks later -- on July 26 -\n\n- William deeded the Property to Jennifer, and the deed was\n\nrecorded shortly thereafter. The deed states, \"[t]his conveyance\n\nis in conformance with [the] divorce decree in the Matter of\n\nJennifer Pike and William T. Pike, Jr.\"\n\n Jennifer subsequently filed a complaint in state court\n\nasserting a homestead right in the Property and seeking to enjoin\n\nDeutsche Bank from foreclosing. The state court entered summary\n\njudgment in Deutsche Bank's favor after determining that the Bank\n\nhad standing to foreclose, and that Jennifer's assertion of a\n\nhomestead right was premature. The New Hampshire Supreme Court\n\naffirmed. See Pike v. Deutsche Bank Nat'l Tr. Co., 121 A.3d 279\n\n(N.H. 2015).\n\n\n\n\n - 5 -\n\fB. Procedural Background\n\n Shortly after the conclusion of the litigation in state\n\ncourt, Deutsche Bank filed this suit in federal court seeking a\n\ndeclaratory judgment either that its interest in the Property is\n\nnot subject to Jennifer's homestead right (Count I), or that it is\n\nentitled to equitable subrogation \"as to the amount it paid to\n\ndischarge the prior mortgage\" (Count II). In support of its\n\nequitable subrogation claim, Deutsche Bank contends that, as\n\nsuccessor to First Franklin, it is entitled to step into the shoes\n\nof New Century -- the 2003 lender -- and benefit from Jennifer's\n\nwaiver of her homestead right in the New Century mortgage because\n\nfunds from the First Franklin loan -- obtained in 2004 -- were\n\nused to pay off the New Century loan. Jennifer pleaded\n\ncounterclaims asserting the priority of her homestead right over\n\nDeutsche Bank's interest.5 The parties eventually cross-moved for\n\nsummary judgment.\n\n Jennifer argued that she had a homestead right in the\n\nProperty from the date of its purchase by virtue of her marriage\n\nto William and that the divorce decree did not automatically\n\nterminate her right. She also argued that Deutsche Bank could not\n\ndemonstrate the presence of every element required for equitable\n\nsubrogation under New Hampshire law. In particular, Jennifer\n\n\n 5\n Jennifer later voluntarily dismissed counterclaims for\nintentional and negligent infliction of emotional distress.\n\n\n - 6 -\n\fasserted that there was a material factual dispute concerning\n\nwhether the First Franklin loan funds were used to pay off the New\n\nCentury loan. She further argued that it would be unjust for\n\nDeutsche Bank to rely on the homestead waiver in the New Century\n\nmortgage given her contention that she had not in fact signed that\n\nmortgage.\n\n For its part, Deutsche Bank argued that Jennifer's\n\nhomestead right in the Property was extinguished or waived by the\n\ntransfers after its purchase -- that is, the transfers of the\n\nProperty between William, Jennifer, and a family trust before it\n\nwas deeded back to William in 2007 -- or by the divorce decree.\n\nAs to equitable subrogation, Deutsche Bank contended that all\n\nnecessary elements were satisfied, and that Jennifer could not\n\ncontest her signature on the New Century mortgage because she had\n\nnot done so in the prior state litigation.\n\n The district court concluded that factual disputes\n\nremained concerning the effect of the divorce decree, and it\n\ntherefore denied the parties' cross-motions for summary judgment\n\nand scheduled a bench trial. In her pretrial briefing, Jennifer\n\nargued for the first time that Deutsche Bank could not invoke\n\nequitable subrogation because it had not shown that William\n\nobtained the First Franklin loan by fraud or other egregious\n\nmisconduct. In response, Deutsche Bank argued that fraud is not\n\na precondition to equitable subrogation under New Hampshire law.\n\n\n - 7 -\n\f In a pretrial order issued without prior notice to the\n\nparties, the district court explained that it viewed the\n\napplicability of equitable subrogation as \"an issue of law that\n\ncan be resolved without further factual development.\"\n\nAccordingly, the court ruled that, \"as a matter of [New Hampshire]\n\nlaw, the circumstances in this case do not meet the threshold\n\nrequirement of fraud or misconduct that would support the use of\n\nequitable subrogation to overcome the protections provided by\" the\n\nhomestead right.\n\n The district court also cancelled the bench trial on the\n\nremaining issue concerning the effect of the divorce decree on\n\nJennifer's homestead right. However, it granted Deutsche Bank's\n\nrequest to further brief the equitable subrogation issue and agreed\n\nto reconsider the viability of the claim. The court further stated\n\nthat the bench trial would be rescheduled \"[i]f the equitable\n\nsubrogation claim is found to be viable.\"\n\n Deutsche Bank then moved for reconsideration of the\n\nequitable subrogation decision, arguing that fraud is not an\n\nelement of equitable subrogation and that, in any event, Jennifer\n\nhad forfeited the fraud argument by not raising it earlier. The\n\ndistrict court denied the motion. Notably, the court directly\n\nengaged with Deutsche Bank's arguments instead of taking the\n\nstandard approach to a motion for reconsideration and considering\n\n\n\n\n - 8 -\n\fonly whether the Bank had identified flaws in the original\n\ndecision.\n\n After the parties submitted briefs on whether the\n\ndivorce extinguished Jennifer's homestead right, the district\n\ncourt issued a final order holding that (1) Jennifer's homestead\n\nright was not extinguished by the divorce, (2) her homestead right\n\ntakes priority over Deutsche Bank's mortgage, and, hence, (3)\n\n\"Jennifer may assert her homestead interest in the [P]roperty\n\n. . . if and when Deutsche Bank forecloses.\" The court, however,\n\ndismissed Jennifer's quiet title counterclaim because she had not\n\ndemonstrated that \"title to the [P]roperty can be settled in her\n\nexclusive of Deutsche Bank's mortgage interest.\" Deutsche Bank\n\ntimely appealed, contending that the district court erred in (1)\n\n\"sua sponte\" dismissing the Bank's equitable subrogation claim on\n\nthe basis that it had not demonstrated the First Franklin mortgage\n\nwas acquired by fraud, and (2) ruling that Jennifer has a homestead\n\nright superior to the Bank's mortgage.\n\n Jennifer subsequently moved for attorney's fees and\n\ncosts pursuant to Federal Rule of Civil Procedure 54(d). The court\n\ngranted her uncontested request for costs but denied her request\n\nfor attorney's fees. We consolidated Jennifer's timely appeal\n\nwith Deutsche Bank's appeal.\n\n\n\n\n - 9 -\n\f II.\n\nA. The District Court's \"Sua Sponte\" Rulings\n\n Deutsche Bank contends that the district court erred in\n\n\"sua sponte\" (1) dismissing its claim for a declaratory judgment\n\nthat it is entitled to equitable subrogation, and (2) cancelling\n\nthe bench trial. In other words, Deutsche Bank faults the court\n\nfor taking these actions on its own initiative and without prior\n\nnotice to the parties.\n\n The district court arguably caught Deutsche Bank\n\nunawares when it dismissed the equitable subrogation claim based\n\non the pretrial briefing. However, even assuming error, we discern\n\nno prejudice to the Bank. See Watchtower Bible & Tract Soc'y of\n\nN.Y., Inc. v. Municipality of San Juan, 773 F.3d 1, 13 (1st Cir.\n\n2014) (\"[A] sua sponte dismissal will not be set aside where the\n\naggrieved party cannot show any prejudice.\"). Deutsche Bank\n\naddressed Jennifer's argument that fraud was required to apply\n\nequitable subrogation in its pretrial briefs and was given the\n\nopportunity to provide additional briefing after the court\n\ndismissed the equitable subrogation claim. Although Deutsche\n\nBank's post-dismissal brief was styled as a motion for\n\nreconsideration, the district court did not hold Deutsche Bank to\n\nthe stringent standard for this type of motion. See Palmer v.\n\nChampion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (noting that a\n\nparty seeking reconsideration of a legal ruling must demonstrate\n\n\n - 10 -\n\fthat \"the rendering court committed a manifest error of law\").\n\nRather, the district court addressed the merits of Deutsche Bank's\n\narguments and again concluded that equitable subrogation did not\n\napply as a matter of law. Thus, even assuming the arguable\n\nproposition that the court erred by initially dismissing the\n\nequitable subrogation claim sua sponte, the court adequately\n\ncorrected any error.6\n\n Regarding the district court's decision to cancel the\n\nbench trial, the simple fact is that the district court did so\n\nafter a pretrial conference at which, according to the district\n\ncourt, \"counsel and the court agreed that there are no factual\n\nissues remaining in the case for the bench trial.\" To the extent\n\nDeutsche Bank now contends that the court misunderstood or\n\nmisrepresented the Bank's position, it has waived that argument by\n\nfailing to raise it before the district court and by failing to\n\nproperly develop the record on appeal. See Barilaro v. Consol.\n\nRail Corp., 876 F.2d 260, 263 (1st Cir. 1989) (stating that we\n\n\"cannot use counsel's allegations regarding what occurred at the\n\npretrial conference as grounds for appeal\").\n\n\n\n\n 6 We are unconvinced by Deutsche Bank's analogy of the\ndistrict court's actions to those of the court in Berkovitz v.\nHBO, Inc., 89 F.3d 24 (1st Cir. 1996). Unlike in Berkovitz, the\ndistrict court did not substantially change the rationale for its\nruling from the initial dismissal to the denial of Deutsche Bank's\nmotion for reconsideration. See id. at 30-31.\n\n\n - 11 -\n\fB. Jennifer's Homestead Right\n\n Deutsche Bank argues that the district court erred in\n\ndetermining that its mortgage interest is subject to Jennifer's\n\nhomestead right in the Property. Before this court, the parties\n\ndo not appear to dispute, putting aside the equitable subrogation\n\nissue, that Jennifer had a homestead right in the Property, by\n\nvirtue of her marriage to William and continuous occupancy, at\n\nleast until the date of the divorce decree.7 Deutsche Bank contends\n\nthat she lost her homestead right either because it was terminated\n\nby the divorce decree or because she waived the right through her\n\nacceptance of certain language in the decree. The district court\n\nin effect concluded that Jennifer retained her homestead right\n\nbecause the decree transferred ownership of the Property to her,\n\nwithout the need for any subsequent conveyance. We review the\n\ndistrict court's conclusion, based on its interpretation of the\n\ndivorce decree and New Hampshire law, de novo.8\n\n\n\n 7 The district court determined that none of the transfers\nprior to the divorce extinguished Jennifer's homestead right.\nDeutsche Bank does not press the issue on appeal.\n 8 Under New Hampshire law, \"[q]uestions of intent [in a\ndivorce decree] are to be resolved by the trier of fact, whose\nfindings will be upheld if supported by the evidence, while the\nmeaning of the language in the agreement is a matter of law.\"\nMiller v. Miller, 578 A.2d 872, 873 (N.H. 1990) (citation omitted)\n(internal quotation marks omitted). We take this to mean that\nwhere, as here, the trial court's interpretation of the parties'\nintent is based on the face of the agreement, the appellate court\nreviews this interpretation de novo as a conclusion of law.\n\n\n\n - 12 -\n\f 1. New Hampshire's Homestead Law\n\n The New Hampshire homestead right, or homestead\n\nexemption, protects $120,000 of the value of a person's homestead\n\nfrom creditors, N.H. Rev. Stat. Ann. § 480:1, with certain\n\nstatutorily defined exceptions, see id. § 480:4, which the parties\n\ndo not contend are relevant to this appeal.9 A homestead is the\n\nplace a person occupies as his or her home; \"actual residency or\n\noccupancy,\" excluding temporary absences, is essential to the\n\ncreation of a homestead because \"[t]he purpose of the homestead\n\nexemption is 'to secure to debtors and their families, the shelter\n\nof the homestead roof[,] not to exempt mere investments in real\n\nestate, or the rents and profits derived therefrom.'\" Stewart v.\n\nBader, 907 A.2d 931, 943 (N.H. 2006)(quoting Austin v. Stanley, 46\n\nN.H. 51, 52 (1865)). The \"shelter of the homestead roof\" does not\n\nmean a person is entitled to keep his or her home in all\n\ncircumstances. Rather, in the event of a forced sale, a person\n\n\n\n\n 9\n Before the district court, the parties appeared to dispute\nwhether Jennifer could claim $120,000 or only the lesser amount --\n$30,000 -- that applied at the time she first acquired a homestead\nright in the Property. See In re Bartlett, 168 B.R. 488, 494-98\n(Bankr. D.N.H. 1994) (discussing whether an increase in the\nstatutory homestead amount can be \"retroactively\" applied). We\nleave that issue for the appropriate court to decide if and when\nJennifer seeks a set-off in the amount of her homestead right.\n\n\n - 13 -\n\fwith a homestead right is entitled to a set-off in the statutorily\n\ndefined amount.10 See N.H. Rev. Stat. Ann. § 480:7.\n\n When a married couple resides together in a home, the\n\nhomestead right \"extends to . . . both spouses, even when only one\n\nspouse legally owns the homestead.\" Maroun v. Deutsche Bank Nat'l\n\nTr. Co., 109 A.3d 203, 208 (N.H. 2014) (citing N.H. Rev. Stat.\n\nAnn. § 480:3-a); see also N.H. Rev. Stat. Ann. § 529:20-a. The\n\nhomestead right of a property owner's spouse is established once\n\nhe or she physically occupies the subject property. Walbridge v.\n\nEstate of Beaudoin, 48 A.3d 964, 966 (N.H. 2012). The spouse's\n\nhomestead right is then ordinarily exempt from any subsequent\n\nattachment or encumbrance; however, the right is not exempt from\n\nany attachment or encumbrance that predates its establishment.\n\nId.; see also Mason v. Wells Fargo Bank, N.A., No. 14-cv-77-JL,\n\n2014 WL 2737601, at *3 (D.N.H. June 17, 2014) (concluding that a\n\nperson who established a homestead right after the execution of a\n\nmortgage on a property \"took the property subject to\" the mortgage\n\nand \"cannot invoke her homestead right as a defense to enforcement\n\nof the mortgage\").\n\n\n\n\n 10 Alternatively, a person with a homestead right can seek an\ninjunction to prevent a forced sale if the equity in the home is\nnot sufficient to cover both the creditor's claim and the homestead\nright. See, e.g., Deyeso v. Cavadi, 66 A.3d 1236, 1238 (N.H.\n2013).\n\n\n - 14 -\n\f The homestead right also can be waived, that is,\n\nvoluntarily or intentionally relinquished. Maroun, 109 A.3d at\n\n228. Although evidence of waiver must be \"unequivocal,\" \"if a\n\nmortgage document is signed by both spouses, 'with the formalities\n\nrequired for the conveyance of land,' no further evidence of waiver\n\nis required.\" Id. (quoting N.H. Rev. Stat. Ann. § 480:5-a).\n\n 2. Property Distribution by Divorce Decree\n\n In New Hampshire, \"[t]he question of whether and to what\n\nextent property rights have been transferred from one person to\n\nanother generally is resolved upon a determination of the\n\ntransferor's intent.\" Mamalis v. Bornovas, 297 A.2d 660, 662 (N.H.\n\n1972). When property rights are transferred in a stipulated\n\nagreement, such as in the form of a stipulated divorce decree,\n\n\"absent fraud, duress, mutual mistake, or ambiguity, the parties'\n\nintentions will be gleaned from the face of the agreement.\" Miller\n\nv. Miller, 578 A.2d 872, 873 (N.H. 1990). Courts consider \"the\n\nplain meaning of the language viewed in the context of the entire\n\ndecree[,]\" Matter of Oligny, 153 A.3d 194, 196 (N.H. 2016), and\n\nconstrue \"[s]ubsidiary clauses . . . so as not to conflict with\n\nthe primary purpose of the decree,\" id. (quoting Bonneville v.\n\nBonneville, 702 A.2d 823, 825 (N.H. 1997)). See also Sommers v.\n\nSommers, 742 A.2d 94, 99 (N.H. 1999) (\"We consider the intent of\n\nthe parties as expressed in the language of the stipulation.\").\n\n\n\n\n - 15 -\n\f Broadly speaking, a major purpose of a divorce decree\n\n\"is to establish a final and equitable distribution of the marital\n\nproperty.\" Bonneville, 702 A.2d at 825; see also McSherry v.\n\nMcSherry, 606 A.2d 311, 313 (N.H. 1992) (\"[A] property settlement\n\nin a divorce decree is 'a final distribution of a sum of money or\n\na specific portion of the spouses' property . . . [and] is not\n\nsubject to judicial modification on account of changed\n\ncircumstances.\" (alteration in original) (quoting Stebbins v.\n\nStebbins, 438 A.2d 295, 297 (N.H. 1981))); see also N.H. Rev. Stat.\n\nAnn. § 458:16-a (providing that \"[w]hen a dissolution of a marriage\n\nis decreed, the court may order an equitable division of property\n\nbetween the parties\" and specifying that \"[p]roperty shall include\n\nall tangible and intangible property and assets, real or personal,\n\nbelonging to either or both parties, whether title to the property\n\nis held in the name of either or both parties\"). Given that\n\ndivorce decrees establish a final division of property, it is\n\nunsurprising that such decrees can effectuate a conveyance of\n\npersonal or real property. See Swett v. Swett, 49 N.H. 264, 264\n\n(1870) (holding that an interest in real estate \"vested in the\n\nwife, 'by the mere force of the [divorce] decree,' 'as effectually\n\nas the same could be done by any conveyance of the husband\n\nhimself'\" (quoting Whittier v. Whittier, 31 N.H. 452, 458 (1855)));\n\nsee also Johnson v. Coe, 697 A.2d 939, 943 (N.H. 1997) (\"The award\n\nof the . . . house to the plaintiff in the divorce decree was a\n\n\n - 16 -\n\fproperty settlement and, as such, not modifiable.\"); Bonneville,\n\n702 A.2d at 826 (holding that a stock transfer in a divorce decree\n\noccurred \"by operation of law\"); Sommers, 742 A.2d at 99 (holding\n\nthat language in a divorce decree \"creat[ed] an immediate property\n\ninterest\" in a vehicle).\n\n Not all conveyances in a divorce decree are\n\nself-executing. That is, a stipulated conveyance in a divorce\n\ndecree may require a future occurrence or further action by the\n\nparties (a condition precedent) to take effect. See Spellman v.\n\nSpellman, 614 A.2d 1054, 1055 (N.H. 1992). However, \"[b]ecause\n\nconditions precedent are disfavored, [courts] infer that the\n\nparties intended a condition precedent only where the plain\n\nlanguage of the decree or stipulation requires such a\n\nconstruction.\" Sommers, 742 A.2d at 99 (emphasis added); see also\n\nUnited States v. Baker, No. 13-cv-213-PB, 2014 WL 4199120, at *3\n\n(D.N.H. Aug. 22, 2014)(\"The husband and wife's subsequent failure\n\nto comply with a provision of the divorce judgment -- in this case,\n\nthe execution and recording of a deed to the . . . properties --\n\nwill not invalidate or delay the conveyance unless the parties\n\nclearly intended for the provision to serve as a condition\n\nprecedent.\"). Therefore, under New Hampshire law, a divorce decree\n\nmay effectuate an immediate property transfer where its language\n\nplainly demonstrates an intention to do so. See Baker,\n\n2014 WL 4199120, at *3 (\"When a 'stipulation between the parties\n\n\n - 17 -\n\f. . . incorporated and merged into the divorce decree' 'clearly\n\nand affirmatively expresse[s] their intention' to convey a real\n\nproperty interest, that interest vests in the grantee 'on the\n\neffective date of the divorce decree.'\" (alteration and omission\n\nin original) (quoting Mamalis, 297 A.2d at 663)).\n\n 3. Application of the Law\n\n The district court correctly determined that Jennifer\n\nretained her homestead right under the plain language of the\n\ndivorce decree, which clearly indicates the parties' intention\n\nthat ownership of the Property immediately transfer to Jennifer:\n\n\"Jennifer Pike is awarded the marital homestead located at 34\n\nDogwood Lane, New London, New Hampshire[,] free and clear of any\n\ninterest of William Pike.\" This declarative statement, with no\n\nmention of any contingency or condition precedent, is the type of\n\nlanguage that the New Hampshire Supreme Court has read to\n\neffectuate an immediate property transfer. See Bonneville, 702\n\nA.2d at 826; Sommers, 742 A.2d at 99; cf. Spellman, 614 A.2d at\n\n236-37 (concluding that a stipulated award of the marital home was\n\nnot \"self-executing\" because the language of the stipulation\n\nspecifically made the transfer contingent on, among other things,\n\nan appraisal of the home).\n\n The other provisions regarding the \"marital homestead\"\n\ndo not negate the parties' clear intent to transfer ownership to\n\nJennifer. See Matter of Oligny, 153 A.3d at 196 (stating that\n\n\n - 18 -\n\f\"[s]ubsidiary clauses\" must be read \"so as not to conflict with\n\nthe primary purpose of the decree\") (quoting Bonneville, 702 A.2d\n\nat 825). Agreeing to share the proceeds from a potential sale of\n\nthe home once their son graduates high school, for example, is not\n\nincompatible with Jennifer's ownership. Nor does the decree's\n\ngeneral provision that the parties \"shall sign and deliver to the\n\nother party any document that is needed to fulfill or accomplish\n\nthe terms of this Decree\" evince an intention to make a deed\n\ntransfer a condition precedent to Jennifer's ownership of the\n\nProperty.11\n\n There also is no unequivocal evidence that Jennifer\n\nwaived her homestead right by agreeing to certain language in the\n\ndecree. See Maroun, 109 A.3d at 228-29. Deutsche Bank makes much\n\nof the fact that the divorce decree mentions the possibility of a\n\nforeclosure on the Property. As discussed above, however, a\n\npotential foreclosure does not necessarily negate a property\n\nowner's homestead right. Rather, a homestead right superior to a\n\nmortgage may simply require the mortgagee to pay the holder of the\n\n\n\n\n 11 The district court noted that William later deeded the\nProperty to Jennifer in support of its conclusion that the parties\nintended to transfer ownership of the Property to her. However,\ncontrary to Deutsche Bank's contention, the district court did not\nsuggest that the deed transfer was a condition precedent. It\nexpressly held that \"Jennifer's right to the [P]roperty became\neffective immediately when the divorce decree issued on July 3,\n2013.\"\n\n\n\n - 19 -\n\fright from the proceeds of a foreclosure sale. See supra section\n\nII.B.1. Therefore, the decree's mention of a possible foreclosure\n\ndoes not indicate that Jennifer relinquished her homestead right.\n\nFor these reasons, the district court did not err in concluding\n\nthat Jennifer enjoys a homestead right in the Property with\n\npriority over Deutsche Bank's mortgage.\n\nC. Equitable Subrogation\n\n Deutsche Bank's equitable subrogation argument\n\nessentially goes as follows: First Franklin discharged the debt\n\nowed to New Century and thus stood to benefit from Jennifer's\n\nwaiver of her homestead right in the New Century mortgage. As\n\nsuccessor to First Franklin, Deutsche Bank can stand in First\n\nFranklin's shoes, and thus benefit from Jennifer's waiver. In\n\nother words, Deutsche Bank does not have to recognize Jennifer's\n\nclaimed homestead right.12\n\n Deutsche Bank further contends that the district court\n\nerred in dismissing the Bank's equitable subrogation claim because\n\n(1) Jennifer waived the argument that equitable subrogation cannot\n\nbe applied to defeat a homestead right in the absence of fraud,\n\nand (2) New Hampshire law does not, in fact, require fraud. As to\n\n\n\n 12 To be precise, Deutsche Bank argues that it is entitled\nto equitable subrogation \"as to the amount that [First Franklin]\npaid to discharge the [New Century] [m]ortgage.\" In practical\nterms, this would mean that Deutsche Bank does not have to pay\nJennifer anything in the event of a foreclosure.\n\n\n - 20 -\n\f\"waiver,\" we are unconvinced that Jennifer \"waived\" or \"forfeited\"\n\nher legal argument given that she raised it at a time when Deutsche\n\nBank still had an opportunity to meaningfully respond and before\n\nthe district court had rendered judgment.13 As to the merits of\n\nher claim, we must first outline the relevant law in New Hampshire.\n\n 1. Background Law\n\n Under New Hampshire law, equitable subrogation \"is a\n\nbroad doctrine [that] 'applies where one who has discharged the\n\ndebt of another may, under certain circumstances, succeed to the\n\nrights and position of the satisfied creditor.'\" Chase v.\n\nAmeriquest Mortg. Co., 921 A.2d 369, 376 (N.H. 2007) (quoting 73\n\nAm. Jur. 2d Subrogation § 5 (2001)). For equitable subrogation to\n\napply, certain conditions \"must be met: (1) the subrogee [the\n\nentity who discharged the debt] cannot have acted as a volunteer;\n\n(2) the subrogee must have paid a debt upon which it was not\n\nprimarily liable; (3) the subrogee must have paid the entire debt;\n\nand (4) subrogation may not work any injustice to the rights of\n\nothers.\" Id.\n\n\n\n\n 13 Deutsche Bank specifically argues that Jennifer forfeited\nthe fraud contention by failing to plead it as an affirmative\ndefense, but the Bank forfeited this argument by failing to raise\nit in its opening brief. See Sparkle Hill, Inc. v. Interstate Mat\nCorp., 788 F.3d 25, 29 (1st Cir. 2015) (noting that arguments first\nasserted in a reply brief ordinarily are deemed waived or\nforfeited).\n\n\n\n - 21 -\n\f The subrogee has the burden of demonstrating an\n\nentitlement to equitable subrogation, \"which generally includes\n\npro[ving] . . . [t]he existence and applicability of equitable\n\nprinciples or contractual provisions as to subrogation and\n\nreimbursement.\" Wolters v. Am. Republic Ins. Co., 827 A.2d 197,\n\n200 (N.H. 2003) (second alteration in original) (quoting 16 L.\n\nRuss & T. Segalla, Couch on Insurance 3d § 222:7 (2000)).\n\nCrucially, the New Hampshire Supreme Court has held that equitable\n\nprinciples, such as equitable subrogation, \"may be applied to reach\n\nbeyond the literal language of the exceptions\" to the homestead\n\nright -- that is, to create a new exception to application of the\n\nhomestead right -- \"only when there has been fraud, deception, or\n\nother misconduct in the procurement of funds spent on a homestead.\"\n\nDeyeso v. Cavadi, 66 A.3d 1236, 1241 (N.H. 2013)(emphasis added).\n\n 2. Application of the Law\n\n On de novo review, we conclude that the district court\n\ncorrectly applied New Hampshire law and declined to apply equitable\n\nsubrogation to defeat Jennifer's homestead right because there was\n\nno \"fraud, deception, or other misconduct in the procurement of\n\nfunds spent on [the] homestead.\" Deyeso, 66 A.3d at 1241.14\n\n\n 14\n Although Deutsche Bank faults the district court for\noffering a shifting rationale for its ruling, we disagree with\nthis characterization. In both of its orders, the district court\nread Deyeso to hold that equitable principles cannot be invoked to\n\"reach beyond the literal language of the homestead exceptions\" in\nthe absence of fraud. Contrary to Deutsche Bank's suggestion, the\n\n\n - 22 -\n\fDeutsche Bank's fallback argument is that even if the district\n\ncourt correctly interpreted New Hampshire law, it could have --\n\nand should have -- exercised its equitable powers to apply\n\nequitable subrogation in the Bank's favor. We need not address\n\nthe complex question of whether and in what circumstances a federal\n\ncourt sitting in diversity may order equitable relief that is not\n\nauthorized under state law. See Guar. Tr. Co. of N.Y. v. York,\n\n326 U.S. 99, 106 (1945) (\"[A] federal court may afford an equitable\n\nremedy for a substantive right recognized by a State even though\n\na State court cannot give it.\"); Bogosian v. Woloohojian Realty\n\nCorp., 923 F.2d 898, 904 (1st Cir. 1991) (noting conflicting\n\ncircuit authority regarding the source of law for determining the\n\nequitable powers of a federal court sitting in diversity). Even\n\nassuming the district court had the ability to apply equitable\n\nsubrogation outside the parameters of New Hampshire law, it was\n\nnot compelled to do so, and it certainly did not abuse its\n\ndiscretion by declining to use its equitable powers in a manner at\n\nodds with state law. See Morgan v. Kerrigan, 523 F.2d 917, 921\n\n(1st Cir. 1975) (per curiam) (\"This court's review of orders issued\n\nin the exercise of the district court's equitable powers is limited\n\n\n\n\ndistrict court never held that fraud is an element of equitable\nsubrogation or a precondition to applying equitable subrogation in\nall situations.\n\n\n - 23 -\n\fto a determination whether there has been an abuse of\n\ndiscretion.\").15\n\n III.\n\n In her cross-appeal, Jennifer contends that she is\n\nentitled to attorney's fees based on a state statute and a\n\nprovision in the Deutsche Bank mortgage. The statute provides, in\n\nrelevant part, as follows:\n\n If a retail installment contract or evidence of\n indebtedness provides for attorney's fees to be awarded\n to the retail seller, lender or creditor in any action,\n suit or proceeding against the retail buyer, borrower or\n debtor involving the sale, loan or extension of credit,\n such contract or evidence of indebtedness shall also\n provide that:\n\n I. Reasonable attorney's fees shall be awarded to the\n buyer, borrower or debtor if he prevails in\n\n (a) Any action, suit or proceeding brought by the retail\n seller, lender or creditor; or\n\n (b) An action brought by the buyer, borrower or debtor[.]\n\nN.H. Rev. Stat. Ann. § 361-C:2 (emphases added). The Deutsche\n\nBank mortgage provides:\n\n\n\n\n 15 We recognize that the district court, at various places in\nits two orders related to equitable subrogation, seems to suggest\nthat its hands were tied by state law. However, we understand the\ndistrict court's rulings ultimately to rest on its determination\nthat equity would not be served by applying equitable subrogation\nin a situation where it would not be applied by state courts. See,\ne.g., Deutsche Bank Nat'l Tr. Co. v. Pike, No. 15-cv-304-JD, 2017\nWL 2608727, at *3 (D.N.H. Feb. 12, 2017) (\"Contrary to Deutsche\nBank's theory, [Jennifer] would not receive a windfall through her\nhomestead interest but instead would receive the protection\nintended and provided by [the homestead statute].\").\n\n\n - 24 -\n\f 25. Attorneys' Fees. Pursuant to . . . § 361-C:2, in\n the event that Borrower shall prevail in (a) any action,\n suit or proceeding, brought by Lender, or (b) an action\n brought by Borrower, reasonable attorneys' fees shall be\n awarded to Borrower.\n\n(Emphases added.) Jennifer did not sign the First Franklin, now\n\nDeutsche Bank, mortgage, and William is listed as the sole\n\n\"borrower.\" The term is not defined in the mortgage or in section\n\n361-C, but Jennifer concedes that she is not the \"borrower\" for\n\npurposes of the mortgage.\n\n The district court concluded that Jennifer is not\n\nentitled to attorney's fees under the statutory provision and the\n\nmortgage precisely because she \"is not the borrower.\" The court\n\nfurther held that even if Jennifer could be considered a \"debtor,\"\n\nthe statute and the mortgage provision do not apply because\n\nDeutsche Bank did not sue her for breach of the note or mortgage.\n\nNevertheless, on appeal, Jennifer presses the argument that she is\n\na \"debtor\" for purposes of the mortgage and, as such, is entitled\n\nto attorney's fees pursuant to the mortgage provision and section\n\n361-C:2. We generally review the district court's denial of\n\nattorney's fees for abuse of discretion but review any underlying\n\nconclusions of law de novo. In re Volkswagen & Audi Warranty\n\nExtension Litig., 692 F.3d 4, 13 (1st Cir. 2012).\n\n Deutsche Bank raises a plethora of reasons why Jennifer\n\nis not entitled to attorney's fees under section 361-C:2 and the\n\nmortgage. It suffices to say, however, that we essentially agree\n\n\n - 25 -\n\fwith the district court's straightforward analysis.16 The court\n\ncorrectly determined that Jennifer is not entitled to the benefit\n\nof the mortgage's attorney's fees provision, which is expressly\n\nlimited to the \"borrower.\" Section 361-C:2 requires reciprocal\n\ntreatment of both sides of a debt contract -- here, the mortgagee\n\nand William -- but does not rewrite the mortgage's terms to render\n\nthe Bank responsible for the attorney's fees of a third party.\n\nThe district court did not commit legal error or otherwise abuse\n\nits discretion in denying her fee request.17\n\n\n\n\n 16Among its other arguments, Deutsche Bank contends that the\ndistrict court did not have jurisdiction to consider Jennifer's\nfee request. Because Jennifer's entitlement to attorney's fees is\neasily resolved on the merits, we do not address the jurisdictional\nissue. See Cozza v. Network Assocs., Inc., 362 F.3d 12, 15 (1st\nCir. 2004) (\"The rule is well established in this Circuit that\nresolution of a complex jurisdictional issue may be avoided when\nthe merits can easily be resolved in favor of the party challenging\njurisdiction.\").\n\n 17 We note that it is somewhat disingenuous for Jennifer to\ncontend she has rights arising under the mortgage given that she\nhas repeatedly disavowed any connection to the mortgage, both in\nstate court and before the district court. Courts generally do\nnot approve of such attempts to have it both ways. See RFF Family\nP'ship, LP v. Ross, 814 F.3d 520, 527 (1st Cir. 2016) (discussing\nthe doctrine of judicial estoppel, which \"prevent[s] a litigant\nfrom taking a litigation position that is inconsistent with a\nlitigation position successfully asserted by him in an earlier\nphase of the same case or in an earlier court proceeding\"\n(alteration in original) (quoting Perry v. Blum, 629 F.3d 1, 8\n(1st Cir. 2010))).\n\n\n - 26 -\n\f ***\n\n For the foregoing reasons, we affirm as to both appeals.\n\nEach side shall bear its own costs.\n\n So ordered.\n\n\n\n\n - 27 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR FFMLT TRUST 2005-FF2, Mortgage Pass-Through Certificates, Series 2005-FF2, Plaintiff, Appellant/Cross-Appellee, v. Jennifer L. PIKE, Defendant, Appellee/Cross-Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNos. 17-1815, 17-1936\\n\\n\\n DEUTSCHE BANK NATIONAL TRUST COMPANY,\\n Trustee for FFMLT Trust 2005-FF2,\\n Mortgage Pass-Through Certificates, Series 2005-FF2,\\n\\n Plaintiff, Appellant/Cross-Appellee,\\n\\n v.\\n\\n JENNIFER L. PIKE,\\n\\n Defendant, Appellee/Cross-Appellant.\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Lipez, and Thompson,\\n Circuit Judges.\\n\\n\\n Kevin P. Polansky, with whom Christine M. Kingston and Nelson\\nMullins Riley Scarborough LLP were on brief, for appellant.\\n Stephen T. Martin, with whom The Law Offices of Martin &\\nHipple, PLLC was on brief, for appellee.\\n\\n\\n February 19, 2019\\n\\f LIPEZ, Circuit Judge. In this diversity case, Deutsche\\n\\nBank National Trust Company contends that the district court erred\\n\\nin concluding that its mortgage interest in a property in New\\n\\nLondon, New Hampshire, is subject to a homestead right of the\\n\\nproperty's resident, Jennifer Pike. In a cross-appeal, Pike\\n\\ncontends that the district court erred in denying her post-judgment\\n\\nmotion for attorney's fees. After careful review, we affirm both\\n\\nthe rejection of Deutsche Bank's claims and the denial of Pike's\\n\\nrequest for attorney's fees.\\n\\n I.\\n\\nA. Factual Background\\n\\n William and Jennifer Pike were married in 2000.1 In\\n\\n2001, William bought the property at 34 Dogwood Lane in New London\\n\\n(\\\"the Property\\\"). Only William was listed on the deed, but\\n\\nJennifer continuously resided at the address from the time of\\n\\npurchase through the filing of the present suit. In 2003, William\\n\\nobtained a loan from New Century Mortgage Corporation secured by\\n\\na mortgage on the Property. Both William's and Jennifer's\\n\\nsignatures were on this mortgage, which included a provision\\n\\nstating that \\\"[b]orrower[] and [b]orrower's spouse . . . release\\n\\nall rights of homestead in the Property.\\\" Jennifer disputes that\\n\\n\\n\\n\\n 1For ease of reference, we will refer to William Pike as\\n\\\"William\\\" and Jennifer Pike as \\\"Jennifer.\\\"\\n\\n\\n - 2 -\\n\\fshe signed the New Century mortgage and asserts that she only later\\n\\nbecame aware of its existence.\\n\\n In late 2004, William obtained another loan, secured by\\n\\nthe Property, from First Franklin Financial Corporation, pursuant\\n\\nto which he again waived his homestead right. The parties agree\\n\\nthat William did not obtain the First Franklin loan through fraud\\n\\nor other egregious misconduct. Jennifer did not sign the note or\\n\\nmortgage.2 A few months later, the New Century loan balance was\\n\\npaid off and that mortgage was discharged.\\n\\n The Pikes subsequently executed several transfers of the\\n\\nProperty between William, Jennifer, and a family trust. The\\n\\nProperty was deeded back to William in 2007.3 The First Franklin\\n\\nmortgage was assigned to Deutsche Bank in 2009.4\\n\\n The Pikes were divorced by decree on July 3, 2013. The\\n\\ndecree included the following provision regarding the Property\\n\\n\\n\\n\\n 2 Although the First Franklin mortgage document stipulates\\nthat the borrower and the \\\"borrower's spouse\\\" release their\\nhomestead rights, the parties appear to assume that this provision\\nwould not be effective against a non-signatory spouse, and we\\nproceed on that assumption.\\n\\n 3 William filed for bankruptcy subsequent to these transfers,\\nbut the parties do not contend that his bankruptcy is relevant to\\nthe issues on appeal.\\n\\n 4 The appellant's full name is Deutsche Bank National Trust\\nCompany, Trustee for FFMLT Trust 2005 FF2, Mortgage Pass-Through\\nCertificates, Series 2005-FF2.\\n\\n\\n - 3 -\\n\\f(strikethroughs in original; initialed, handwritten addition in\\n\\nitalics):\\n\\n 14. Marital Homestead:\\n\\n A. Jennifer Pike is awarded the exclusive use and\\n\\n possession of the marital homestead located at 34\\n\\n Dogwood Lane, New London, New Hampshire free and clear\\n\\n of any interest of William Pike.\\n\\n B. Jennifer may remain in the home until it goes\\n\\n into foreclosure, or [their son] graduates high school.\\n\\n C. If the house does not go [into] foreclosure and\\n\\n the parties can sell the home, the parties shall list\\n\\n the house for sale once [their son] graduates high\\n\\n school. The Parties will share equally any equity in\\n\\n the home.\\n\\n D. The Parties will share equally the cost of any\\n\\n necessary home repairs over $500. If a repair is\\n\\n necessary, Jennifer will inform William of the repair\\n\\n via email and provide him an explanation of the repair\\n\\n needed and include a quote for the work, if possible.\\n\\n William will forward his share of the repair cost to the\\n\\n contractor directly if possible. If that is not\\n\\n possible, he will give his share of the repair cost to\\n\\n Jennifer within 30 days of the repair. [With respect to\\n\\n repairs necessary to preserve the habitability of the\\n\\n\\n - 4 -\\n\\f house, Jennifer will give notice to Bill of the need,\\n\\n and upon Bill's review, and inspection, and agreement\\n\\n that the repair is necessary, Bill shall share up to 50%\\n\\n of the cost of the Repair.]\\n\\nThe decree also provides, \\\"[e]xcept as otherwise provide[d]\\n\\nherein, each party shall sign and deliver to the other party any\\n\\ndocument that is needed to fulfill or accomplish the terms of this\\n\\nDecree within thirty (30) days of the request to do so.\\\"\\n\\n Deutsche Bank began foreclosure proceedings on the\\n\\nProperty on July 11, 2013. About two weeks later -- on July 26 -\\n\\n- William deeded the Property to Jennifer, and the deed was\\n\\nrecorded shortly thereafter. The deed states, \\\"[t]his conveyance\\n\\nis in conformance with [the] divorce decree in the Matter of\\n\\nJennifer Pike and William T. Pike, Jr.\\\"\\n\\n Jennifer subsequently filed a complaint in state court\\n\\nasserting a homestead right in the Property and seeking to enjoin\\n\\nDeutsche Bank from foreclosing. The state court entered summary\\n\\njudgment in Deutsche Bank's favor after determining that the Bank\\n\\nhad standing to foreclose, and that Jennifer's assertion of a\\n\\nhomestead right was premature. The New Hampshire Supreme Court\\n\\naffirmed. See Pike v. Deutsche Bank Nat'l Tr. Co., 121 A.3d 279\\n\\n(N.H. 2015).\\n\\n\\n\\n\\n - 5 -\\n\\fB. Procedural Background\\n\\n Shortly after the conclusion of the litigation in state\\n\\ncourt, Deutsche Bank filed this suit in federal court seeking a\\n\\ndeclaratory judgment either that its interest in the Property is\\n\\nnot subject to Jennifer's homestead right (Count I), or that it is\\n\\nentitled to equitable subrogation \\\"as to the amount it paid to\\n\\ndischarge the prior mortgage\\\" (Count II). In support of its\\n\\nequitable subrogation claim, Deutsche Bank contends that, as\\n\\nsuccessor to First Franklin, it is entitled to step into the shoes\\n\\nof New Century -- the 2003 lender -- and benefit from Jennifer's\\n\\nwaiver of her homestead right in the New Century mortgage because\\n\\nfunds from the First Franklin loan -- obtained in 2004 -- were\\n\\nused to pay off the New Century loan. Jennifer pleaded\\n\\ncounterclaims asserting the priority of her homestead right over\\n\\nDeutsche Bank's interest.5 The parties eventually cross-moved for\\n\\nsummary judgment.\\n\\n Jennifer argued that she had a homestead right in the\\n\\nProperty from the date of its purchase by virtue of her marriage\\n\\nto William and that the divorce decree did not automatically\\n\\nterminate her right. She also argued that Deutsche Bank could not\\n\\ndemonstrate the presence of every element required for equitable\\n\\nsubrogation under New Hampshire law. In particular, Jennifer\\n\\n\\n 5\\n Jennifer later voluntarily dismissed counterclaims for\\nintentional and negligent infliction of emotional distress.\\n\\n\\n - 6 -\\n\\fasserted that there was a material factual dispute concerning\\n\\nwhether the First Franklin loan funds were used to pay off the New\\n\\nCentury loan. She further argued that it would be unjust for\\n\\nDeutsche Bank to rely on the homestead waiver in the New Century\\n\\nmortgage given her contention that she had not in fact signed that\\n\\nmortgage.\\n\\n For its part, Deutsche Bank argued that Jennifer's\\n\\nhomestead right in the Property was extinguished or waived by the\\n\\ntransfers after its purchase -- that is, the transfers of the\\n\\nProperty between William, Jennifer, and a family trust before it\\n\\nwas deeded back to William in 2007 -- or by the divorce decree.\\n\\nAs to equitable subrogation, Deutsche Bank contended that all\\n\\nnecessary elements were satisfied, and that Jennifer could not\\n\\ncontest her signature on the New Century mortgage because she had\\n\\nnot done so in the prior state litigation.\\n\\n The district court concluded that factual disputes\\n\\nremained concerning the effect of the divorce decree, and it\\n\\ntherefore denied the parties' cross-motions for summary judgment\\n\\nand scheduled a bench trial. In her pretrial briefing, Jennifer\\n\\nargued for the first time that Deutsche Bank could not invoke\\n\\nequitable subrogation because it had not shown that William\\n\\nobtained the First Franklin loan by fraud or other egregious\\n\\nmisconduct. In response, Deutsche Bank argued that fraud is not\\n\\na precondition to equitable subrogation under New Hampshire law.\\n\\n\\n - 7 -\\n\\f In a pretrial order issued without prior notice to the\\n\\nparties, the district court explained that it viewed the\\n\\napplicability of equitable subrogation as \\\"an issue of law that\\n\\ncan be resolved without further factual development.\\\"\\n\\nAccordingly, the court ruled that, \\\"as a matter of [New Hampshire]\\n\\nlaw, the circumstances in this case do not meet the threshold\\n\\nrequirement of fraud or misconduct that would support the use of\\n\\nequitable subrogation to overcome the protections provided by\\\" the\\n\\nhomestead right.\\n\\n The district court also cancelled the bench trial on the\\n\\nremaining issue concerning the effect of the divorce decree on\\n\\nJennifer's homestead right. However, it granted Deutsche Bank's\\n\\nrequest to further brief the equitable subrogation issue and agreed\\n\\nto reconsider the viability of the claim. The court further stated\\n\\nthat the bench trial would be rescheduled \\\"[i]f the equitable\\n\\nsubrogation claim is found to be viable.\\\"\\n\\n Deutsche Bank then moved for reconsideration of the\\n\\nequitable subrogation decision, arguing that fraud is not an\\n\\nelement of equitable subrogation and that, in any event, Jennifer\\n\\nhad forfeited the fraud argument by not raising it earlier. The\\n\\ndistrict court denied the motion. Notably, the court directly\\n\\nengaged with Deutsche Bank's arguments instead of taking the\\n\\nstandard approach to a motion for reconsideration and considering\\n\\n\\n\\n\\n - 8 -\\n\\fonly whether the Bank had identified flaws in the original\\n\\ndecision.\\n\\n After the parties submitted briefs on whether the\\n\\ndivorce extinguished Jennifer's homestead right, the district\\n\\ncourt issued a final order holding that (1) Jennifer's homestead\\n\\nright was not extinguished by the divorce, (2) her homestead right\\n\\ntakes priority over Deutsche Bank's mortgage, and, hence, (3)\\n\\n\\\"Jennifer may assert her homestead interest in the [P]roperty\\n\\n. . . if and when Deutsche Bank forecloses.\\\" The court, however,\\n\\ndismissed Jennifer's quiet title counterclaim because she had not\\n\\ndemonstrated that \\\"title to the [P]roperty can be settled in her\\n\\nexclusive of Deutsche Bank's mortgage interest.\\\" Deutsche Bank\\n\\ntimely appealed, contending that the district court erred in (1)\\n\\n\\\"sua sponte\\\" dismissing the Bank's equitable subrogation claim on\\n\\nthe basis that it had not demonstrated the First Franklin mortgage\\n\\nwas acquired by fraud, and (2) ruling that Jennifer has a homestead\\n\\nright superior to the Bank's mortgage.\\n\\n Jennifer subsequently moved for attorney's fees and\\n\\ncosts pursuant to Federal Rule of Civil Procedure 54(d). The court\\n\\ngranted her uncontested request for costs but denied her request\\n\\nfor attorney's fees. We consolidated Jennifer's timely appeal\\n\\nwith Deutsche Bank's appeal.\\n\\n\\n\\n\\n - 9 -\\n\\f II.\\n\\nA. The District Court's \\\"Sua Sponte\\\" Rulings\\n\\n Deutsche Bank contends that the district court erred in\\n\\n\\\"sua sponte\\\" (1) dismissing its claim for a declaratory judgment\\n\\nthat it is entitled to equitable subrogation, and (2) cancelling\\n\\nthe bench trial. In other words, Deutsche Bank faults the court\\n\\nfor taking these actions on its own initiative and without prior\\n\\nnotice to the parties.\\n\\n The district court arguably caught Deutsche Bank\\n\\nunawares when it dismissed the equitable subrogation claim based\\n\\non the pretrial briefing. However, even assuming error, we discern\\n\\nno prejudice to the Bank. See Watchtower Bible & Tract Soc'y of\\n\\nN.Y., Inc. v. Municipality of San Juan, 773 F.3d 1, 13 (1st Cir.\\n\\n2014) (\\\"[A] sua sponte dismissal will not be set aside where the\\n\\naggrieved party cannot show any prejudice.\\\"). Deutsche Bank\\n\\naddressed Jennifer's argument that fraud was required to apply\\n\\nequitable subrogation in its pretrial briefs and was given the\\n\\nopportunity to provide additional briefing after the court\\n\\ndismissed the equitable subrogation claim. Although Deutsche\\n\\nBank's post-dismissal brief was styled as a motion for\\n\\nreconsideration, the district court did not hold Deutsche Bank to\\n\\nthe stringent standard for this type of motion. See Palmer v.\\n\\nChampion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (noting that a\\n\\nparty seeking reconsideration of a legal ruling must demonstrate\\n\\n\\n - 10 -\\n\\fthat \\\"the rendering court committed a manifest error of law\\\").\\n\\nRather, the district court addressed the merits of Deutsche Bank's\\n\\narguments and again concluded that equitable subrogation did not\\n\\napply as a matter of law. Thus, even assuming the arguable\\n\\nproposition that the court erred by initially dismissing the\\n\\nequitable subrogation claim sua sponte, the court adequately\\n\\ncorrected any error.6\\n\\n Regarding the district court's decision to cancel the\\n\\nbench trial, the simple fact is that the district court did so\\n\\nafter a pretrial conference at which, according to the district\\n\\ncourt, \\\"counsel and the court agreed that there are no factual\\n\\nissues remaining in the case for the bench trial.\\\" To the extent\\n\\nDeutsche Bank now contends that the court misunderstood or\\n\\nmisrepresented the Bank's position, it has waived that argument by\\n\\nfailing to raise it before the district court and by failing to\\n\\nproperly develop the record on appeal. See Barilaro v. Consol.\\n\\nRail Corp., 876 F.2d 260, 263 (1st Cir. 1989) (stating that we\\n\\n\\\"cannot use counsel's allegations regarding what occurred at the\\n\\npretrial conference as grounds for appeal\\\").\\n\\n\\n\\n\\n 6 We are unconvinced by Deutsche Bank's analogy of the\\ndistrict court's actions to those of the court in Berkovitz v.\\nHBO, Inc., 89 F.3d 24 (1st Cir. 1996). Unlike in Berkovitz, the\\ndistrict court did not substantially change the rationale for its\\nruling from the initial dismissal to the denial of Deutsche Bank's\\nmotion for reconsideration. See id. at 30-31.\\n\\n\\n - 11 -\\n\\fB. Jennifer's Homestead Right\\n\\n Deutsche Bank argues that the district court erred in\\n\\ndetermining that its mortgage interest is subject to Jennifer's\\n\\nhomestead right in the Property. Before this court, the parties\\n\\ndo not appear to dispute, putting aside the equitable subrogation\\n\\nissue, that Jennifer had a homestead right in the Property, by\\n\\nvirtue of her marriage to William and continuous occupancy, at\\n\\nleast until the date of the divorce decree.7 Deutsche Bank contends\\n\\nthat she lost her homestead right either because it was terminated\\n\\nby the divorce decree or because she waived the right through her\\n\\nacceptance of certain language in the decree. The district court\\n\\nin effect concluded that Jennifer retained her homestead right\\n\\nbecause the decree transferred ownership of the Property to her,\\n\\nwithout the need for any subsequent conveyance. We review the\\n\\ndistrict court's conclusion, based on its interpretation of the\\n\\ndivorce decree and New Hampshire law, de novo.8\\n\\n\\n\\n 7 The district court determined that none of the transfers\\nprior to the divorce extinguished Jennifer's homestead right.\\nDeutsche Bank does not press the issue on appeal.\\n 8 Under New Hampshire law, \\\"[q]uestions of intent [in a\\ndivorce decree] are to be resolved by the trier of fact, whose\\nfindings will be upheld if supported by the evidence, while the\\nmeaning of the language in the agreement is a matter of law.\\\"\\nMiller v. Miller, 578 A.2d 872, 873 (N.H. 1990) (citation omitted)\\n(internal quotation marks omitted). We take this to mean that\\nwhere, as here, the trial court's interpretation of the parties'\\nintent is based on the face of the agreement, the appellate court\\nreviews this interpretation de novo as a conclusion of law.\\n\\n\\n\\n - 12 -\\n\\f 1. New Hampshire's Homestead Law\\n\\n The New Hampshire homestead right, or homestead\\n\\nexemption, protects $120,000 of the value of a person's homestead\\n\\nfrom creditors, N.H. Rev. Stat. Ann. § 480:1, with certain\\n\\nstatutorily defined exceptions, see id. § 480:4, which the parties\\n\\ndo not contend are relevant to this appeal.9 A homestead is the\\n\\nplace a person occupies as his or her home; \\\"actual residency or\\n\\noccupancy,\\\" excluding temporary absences, is essential to the\\n\\ncreation of a homestead because \\\"[t]he purpose of the homestead\\n\\nexemption is 'to secure to debtors and their families, the shelter\\n\\nof the homestead roof[,] not to exempt mere investments in real\\n\\nestate, or the rents and profits derived therefrom.'\\\" Stewart v.\\n\\nBader, 907 A.2d 931, 943 (N.H. 2006)(quoting Austin v. Stanley, 46\\n\\nN.H. 51, 52 (1865)). The \\\"shelter of the homestead roof\\\" does not\\n\\nmean a person is entitled to keep his or her home in all\\n\\ncircumstances. Rather, in the event of a forced sale, a person\\n\\n\\n\\n\\n 9\\n Before the district court, the parties appeared to dispute\\nwhether Jennifer could claim $120,000 or only the lesser amount --\\n$30,000 -- that applied at the time she first acquired a homestead\\nright in the Property. See In re Bartlett, 168 B.R. 488, 494-98\\n(Bankr. D.N.H. 1994) (discussing whether an increase in the\\nstatutory homestead amount can be \\\"retroactively\\\" applied). We\\nleave that issue for the appropriate court to decide if and when\\nJennifer seeks a set-off in the amount of her homestead right.\\n\\n\\n - 13 -\\n\\fwith a homestead right is entitled to a set-off in the statutorily\\n\\ndefined amount.10 See N.H. Rev. Stat. Ann. § 480:7.\\n\\n When a married couple resides together in a home, the\\n\\nhomestead right \\\"extends to . . . both spouses, even when only one\\n\\nspouse legally owns the homestead.\\\" Maroun v. Deutsche Bank Nat'l\\n\\nTr. Co., 109 A.3d 203, 208 (N.H. 2014) (citing N.H. Rev. Stat.\\n\\nAnn. § 480:3-a); see also N.H. Rev. Stat. Ann. § 529:20-a. The\\n\\nhomestead right of a property owner's spouse is established once\\n\\nhe or she physically occupies the subject property. Walbridge v.\\n\\nEstate of Beaudoin, 48 A.3d 964, 966 (N.H. 2012). The spouse's\\n\\nhomestead right is then ordinarily exempt from any subsequent\\n\\nattachment or encumbrance; however, the right is not exempt from\\n\\nany attachment or encumbrance that predates its establishment.\\n\\nId.; see also Mason v. Wells Fargo Bank, N.A., No. 14-cv-77-JL,\\n\\n2014 WL 2737601, at *3 (D.N.H. June 17, 2014) (concluding that a\\n\\nperson who established a homestead right after the execution of a\\n\\nmortgage on a property \\\"took the property subject to\\\" the mortgage\\n\\nand \\\"cannot invoke her homestead right as a defense to enforcement\\n\\nof the mortgage\\\").\\n\\n\\n\\n\\n 10 Alternatively, a person with a homestead right can seek an\\ninjunction to prevent a forced sale if the equity in the home is\\nnot sufficient to cover both the creditor's claim and the homestead\\nright. See, e.g., Deyeso v. Cavadi, 66 A.3d 1236, 1238 (N.H.\\n2013).\\n\\n\\n - 14 -\\n\\f The homestead right also can be waived, that is,\\n\\nvoluntarily or intentionally relinquished. Maroun, 109 A.3d at\\n\\n228. Although evidence of waiver must be \\\"unequivocal,\\\" \\\"if a\\n\\nmortgage document is signed by both spouses, 'with the formalities\\n\\nrequired for the conveyance of land,' no further evidence of waiver\\n\\nis required.\\\" Id. (quoting N.H. Rev. Stat. Ann. § 480:5-a).\\n\\n 2. Property Distribution by Divorce Decree\\n\\n In New Hampshire, \\\"[t]he question of whether and to what\\n\\nextent property rights have been transferred from one person to\\n\\nanother generally is resolved upon a determination of the\\n\\ntransferor's intent.\\\" Mamalis v. Bornovas, 297 A.2d 660, 662 (N.H.\\n\\n1972). When property rights are transferred in a stipulated\\n\\nagreement, such as in the form of a stipulated divorce decree,\\n\\n\\\"absent fraud, duress, mutual mistake, or ambiguity, the parties'\\n\\nintentions will be gleaned from the face of the agreement.\\\" Miller\\n\\nv. Miller, 578 A.2d 872, 873 (N.H. 1990). Courts consider \\\"the\\n\\nplain meaning of the language viewed in the context of the entire\\n\\ndecree[,]\\\" Matter of Oligny, 153 A.3d 194, 196 (N.H. 2016), and\\n\\nconstrue \\\"[s]ubsidiary clauses . . . so as not to conflict with\\n\\nthe primary purpose of the decree,\\\" id. (quoting Bonneville v.\\n\\nBonneville, 702 A.2d 823, 825 (N.H. 1997)). See also Sommers v.\\n\\nSommers, 742 A.2d 94, 99 (N.H. 1999) (\\\"We consider the intent of\\n\\nthe parties as expressed in the language of the stipulation.\\\").\\n\\n\\n\\n\\n - 15 -\\n\\f Broadly speaking, a major purpose of a divorce decree\\n\\n\\\"is to establish a final and equitable distribution of the marital\\n\\nproperty.\\\" Bonneville, 702 A.2d at 825; see also McSherry v.\\n\\nMcSherry, 606 A.2d 311, 313 (N.H. 1992) (\\\"[A] property settlement\\n\\nin a divorce decree is 'a final distribution of a sum of money or\\n\\na specific portion of the spouses' property . . . [and] is not\\n\\nsubject to judicial modification on account of changed\\n\\ncircumstances.\\\" (alteration in original) (quoting Stebbins v.\\n\\nStebbins, 438 A.2d 295, 297 (N.H. 1981))); see also N.H. Rev. Stat.\\n\\nAnn. § 458:16-a (providing that \\\"[w]hen a dissolution of a marriage\\n\\nis decreed, the court may order an equitable division of property\\n\\nbetween the parties\\\" and specifying that \\\"[p]roperty shall include\\n\\nall tangible and intangible property and assets, real or personal,\\n\\nbelonging to either or both parties, whether title to the property\\n\\nis held in the name of either or both parties\\\"). Given that\\n\\ndivorce decrees establish a final division of property, it is\\n\\nunsurprising that such decrees can effectuate a conveyance of\\n\\npersonal or real property. See Swett v. Swett, 49 N.H. 264, 264\\n\\n(1870) (holding that an interest in real estate \\\"vested in the\\n\\nwife, 'by the mere force of the [divorce] decree,' 'as effectually\\n\\nas the same could be done by any conveyance of the husband\\n\\nhimself'\\\" (quoting Whittier v. Whittier, 31 N.H. 452, 458 (1855)));\\n\\nsee also Johnson v. Coe, 697 A.2d 939, 943 (N.H. 1997) (\\\"The award\\n\\nof the . . . house to the plaintiff in the divorce decree was a\\n\\n\\n - 16 -\\n\\fproperty settlement and, as such, not modifiable.\\\"); Bonneville,\\n\\n702 A.2d at 826 (holding that a stock transfer in a divorce decree\\n\\noccurred \\\"by operation of law\\\"); Sommers, 742 A.2d at 99 (holding\\n\\nthat language in a divorce decree \\\"creat[ed] an immediate property\\n\\ninterest\\\" in a vehicle).\\n\\n Not all conveyances in a divorce decree are\\n\\nself-executing. That is, a stipulated conveyance in a divorce\\n\\ndecree may require a future occurrence or further action by the\\n\\nparties (a condition precedent) to take effect. See Spellman v.\\n\\nSpellman, 614 A.2d 1054, 1055 (N.H. 1992). However, \\\"[b]ecause\\n\\nconditions precedent are disfavored, [courts] infer that the\\n\\nparties intended a condition precedent only where the plain\\n\\nlanguage of the decree or stipulation requires such a\\n\\nconstruction.\\\" Sommers, 742 A.2d at 99 (emphasis added); see also\\n\\nUnited States v. Baker, No. 13-cv-213-PB, 2014 WL 4199120, at *3\\n\\n(D.N.H. Aug. 22, 2014)(\\\"The husband and wife's subsequent failure\\n\\nto comply with a provision of the divorce judgment -- in this case,\\n\\nthe execution and recording of a deed to the . . . properties --\\n\\nwill not invalidate or delay the conveyance unless the parties\\n\\nclearly intended for the provision to serve as a condition\\n\\nprecedent.\\\"). Therefore, under New Hampshire law, a divorce decree\\n\\nmay effectuate an immediate property transfer where its language\\n\\nplainly demonstrates an intention to do so. See Baker,\\n\\n2014 WL 4199120, at *3 (\\\"When a 'stipulation between the parties\\n\\n\\n - 17 -\\n\\f. . . incorporated and merged into the divorce decree' 'clearly\\n\\nand affirmatively expresse[s] their intention' to convey a real\\n\\nproperty interest, that interest vests in the grantee 'on the\\n\\neffective date of the divorce decree.'\\\" (alteration and omission\\n\\nin original) (quoting Mamalis, 297 A.2d at 663)).\\n\\n 3. Application of the Law\\n\\n The district court correctly determined that Jennifer\\n\\nretained her homestead right under the plain language of the\\n\\ndivorce decree, which clearly indicates the parties' intention\\n\\nthat ownership of the Property immediately transfer to Jennifer:\\n\\n\\\"Jennifer Pike is awarded the marital homestead located at 34\\n\\nDogwood Lane, New London, New Hampshire[,] free and clear of any\\n\\ninterest of William Pike.\\\" This declarative statement, with no\\n\\nmention of any contingency or condition precedent, is the type of\\n\\nlanguage that the New Hampshire Supreme Court has read to\\n\\neffectuate an immediate property transfer. See Bonneville, 702\\n\\nA.2d at 826; Sommers, 742 A.2d at 99; cf. Spellman, 614 A.2d at\\n\\n236-37 (concluding that a stipulated award of the marital home was\\n\\nnot \\\"self-executing\\\" because the language of the stipulation\\n\\nspecifically made the transfer contingent on, among other things,\\n\\nan appraisal of the home).\\n\\n The other provisions regarding the \\\"marital homestead\\\"\\n\\ndo not negate the parties' clear intent to transfer ownership to\\n\\nJennifer. See Matter of Oligny, 153 A.3d at 196 (stating that\\n\\n\\n - 18 -\\n\\f\\\"[s]ubsidiary clauses\\\" must be read \\\"so as not to conflict with\\n\\nthe primary purpose of the decree\\\") (quoting Bonneville, 702 A.2d\\n\\nat 825). Agreeing to share the proceeds from a potential sale of\\n\\nthe home once their son graduates high school, for example, is not\\n\\nincompatible with Jennifer's ownership. Nor does the decree's\\n\\ngeneral provision that the parties \\\"shall sign and deliver to the\\n\\nother party any document that is needed to fulfill or accomplish\\n\\nthe terms of this Decree\\\" evince an intention to make a deed\\n\\ntransfer a condition precedent to Jennifer's ownership of the\\n\\nProperty.11\\n\\n There also is no unequivocal evidence that Jennifer\\n\\nwaived her homestead right by agreeing to certain language in the\\n\\ndecree. See Maroun, 109 A.3d at 228-29. Deutsche Bank makes much\\n\\nof the fact that the divorce decree mentions the possibility of a\\n\\nforeclosure on the Property. As discussed above, however, a\\n\\npotential foreclosure does not necessarily negate a property\\n\\nowner's homestead right. Rather, a homestead right superior to a\\n\\nmortgage may simply require the mortgagee to pay the holder of the\\n\\n\\n\\n\\n 11 The district court noted that William later deeded the\\nProperty to Jennifer in support of its conclusion that the parties\\nintended to transfer ownership of the Property to her. However,\\ncontrary to Deutsche Bank's contention, the district court did not\\nsuggest that the deed transfer was a condition precedent. It\\nexpressly held that \\\"Jennifer's right to the [P]roperty became\\neffective immediately when the divorce decree issued on July 3,\\n2013.\\\"\\n\\n\\n\\n - 19 -\\n\\fright from the proceeds of a foreclosure sale. See supra section\\n\\nII.B.1. Therefore, the decree's mention of a possible foreclosure\\n\\ndoes not indicate that Jennifer relinquished her homestead right.\\n\\nFor these reasons, the district court did not err in concluding\\n\\nthat Jennifer enjoys a homestead right in the Property with\\n\\npriority over Deutsche Bank's mortgage.\\n\\nC. Equitable Subrogation\\n\\n Deutsche Bank's equitable subrogation argument\\n\\nessentially goes as follows: First Franklin discharged the debt\\n\\nowed to New Century and thus stood to benefit from Jennifer's\\n\\nwaiver of her homestead right in the New Century mortgage. As\\n\\nsuccessor to First Franklin, Deutsche Bank can stand in First\\n\\nFranklin's shoes, and thus benefit from Jennifer's waiver. In\\n\\nother words, Deutsche Bank does not have to recognize Jennifer's\\n\\nclaimed homestead right.12\\n\\n Deutsche Bank further contends that the district court\\n\\nerred in dismissing the Bank's equitable subrogation claim because\\n\\n(1) Jennifer waived the argument that equitable subrogation cannot\\n\\nbe applied to defeat a homestead right in the absence of fraud,\\n\\nand (2) New Hampshire law does not, in fact, require fraud. As to\\n\\n\\n\\n 12 To be precise, Deutsche Bank argues that it is entitled\\nto equitable subrogation \\\"as to the amount that [First Franklin]\\npaid to discharge the [New Century] [m]ortgage.\\\" In practical\\nterms, this would mean that Deutsche Bank does not have to pay\\nJennifer anything in the event of a foreclosure.\\n\\n\\n - 20 -\\n\\f\\\"waiver,\\\" we are unconvinced that Jennifer \\\"waived\\\" or \\\"forfeited\\\"\\n\\nher legal argument given that she raised it at a time when Deutsche\\n\\nBank still had an opportunity to meaningfully respond and before\\n\\nthe district court had rendered judgment.13 As to the merits of\\n\\nher claim, we must first outline the relevant law in New Hampshire.\\n\\n 1. Background Law\\n\\n Under New Hampshire law, equitable subrogation \\\"is a\\n\\nbroad doctrine [that] 'applies where one who has discharged the\\n\\ndebt of another may, under certain circumstances, succeed to the\\n\\nrights and position of the satisfied creditor.'\\\" Chase v.\\n\\nAmeriquest Mortg. Co., 921 A.2d 369, 376 (N.H. 2007) (quoting 73\\n\\nAm. Jur. 2d Subrogation § 5 (2001)). For equitable subrogation to\\n\\napply, certain conditions \\\"must be met: (1) the subrogee [the\\n\\nentity who discharged the debt] cannot have acted as a volunteer;\\n\\n(2) the subrogee must have paid a debt upon which it was not\\n\\nprimarily liable; (3) the subrogee must have paid the entire debt;\\n\\nand (4) subrogation may not work any injustice to the rights of\\n\\nothers.\\\" Id.\\n\\n\\n\\n\\n 13 Deutsche Bank specifically argues that Jennifer forfeited\\nthe fraud contention by failing to plead it as an affirmative\\ndefense, but the Bank forfeited this argument by failing to raise\\nit in its opening brief. See Sparkle Hill, Inc. v. Interstate Mat\\nCorp., 788 F.3d 25, 29 (1st Cir. 2015) (noting that arguments first\\nasserted in a reply brief ordinarily are deemed waived or\\nforfeited).\\n\\n\\n\\n - 21 -\\n\\f The subrogee has the burden of demonstrating an\\n\\nentitlement to equitable subrogation, \\\"which generally includes\\n\\npro[ving] . . . [t]he existence and applicability of equitable\\n\\nprinciples or contractual provisions as to subrogation and\\n\\nreimbursement.\\\" Wolters v. Am. Republic Ins. Co., 827 A.2d 197,\\n\\n200 (N.H. 2003) (second alteration in original) (quoting 16 L.\\n\\nRuss & T. Segalla, Couch on Insurance 3d § 222:7 (2000)).\\n\\nCrucially, the New Hampshire Supreme Court has held that equitable\\n\\nprinciples, such as equitable subrogation, \\\"may be applied to reach\\n\\nbeyond the literal language of the exceptions\\\" to the homestead\\n\\nright -- that is, to create a new exception to application of the\\n\\nhomestead right -- \\\"only when there has been fraud, deception, or\\n\\nother misconduct in the procurement of funds spent on a homestead.\\\"\\n\\nDeyeso v. Cavadi, 66 A.3d 1236, 1241 (N.H. 2013)(emphasis added).\\n\\n 2. Application of the Law\\n\\n On de novo review, we conclude that the district court\\n\\ncorrectly applied New Hampshire law and declined to apply equitable\\n\\nsubrogation to defeat Jennifer's homestead right because there was\\n\\nno \\\"fraud, deception, or other misconduct in the procurement of\\n\\nfunds spent on [the] homestead.\\\" Deyeso, 66 A.3d at 1241.14\\n\\n\\n 14\\n Although Deutsche Bank faults the district court for\\noffering a shifting rationale for its ruling, we disagree with\\nthis characterization. In both of its orders, the district court\\nread Deyeso to hold that equitable principles cannot be invoked to\\n\\\"reach beyond the literal language of the homestead exceptions\\\" in\\nthe absence of fraud. Contrary to Deutsche Bank's suggestion, the\\n\\n\\n - 22 -\\n\\fDeutsche Bank's fallback argument is that even if the district\\n\\ncourt correctly interpreted New Hampshire law, it could have --\\n\\nand should have -- exercised its equitable powers to apply\\n\\nequitable subrogation in the Bank's favor. We need not address\\n\\nthe complex question of whether and in what circumstances a federal\\n\\ncourt sitting in diversity may order equitable relief that is not\\n\\nauthorized under state law. See Guar. Tr. Co. of N.Y. v. York,\\n\\n326 U.S. 99, 106 (1945) (\\\"[A] federal court may afford an equitable\\n\\nremedy for a substantive right recognized by a State even though\\n\\na State court cannot give it.\\\"); Bogosian v. Woloohojian Realty\\n\\nCorp., 923 F.2d 898, 904 (1st Cir. 1991) (noting conflicting\\n\\ncircuit authority regarding the source of law for determining the\\n\\nequitable powers of a federal court sitting in diversity). Even\\n\\nassuming the district court had the ability to apply equitable\\n\\nsubrogation outside the parameters of New Hampshire law, it was\\n\\nnot compelled to do so, and it certainly did not abuse its\\n\\ndiscretion by declining to use its equitable powers in a manner at\\n\\nodds with state law. See Morgan v. Kerrigan, 523 F.2d 917, 921\\n\\n(1st Cir. 1975) (per curiam) (\\\"This court's review of orders issued\\n\\nin the exercise of the district court's equitable powers is limited\\n\\n\\n\\n\\ndistrict court never held that fraud is an element of equitable\\nsubrogation or a precondition to applying equitable subrogation in\\nall situations.\\n\\n\\n - 23 -\\n\\fto a determination whether there has been an abuse of\\n\\ndiscretion.\\\").15\\n\\n III.\\n\\n In her cross-appeal, Jennifer contends that she is\\n\\nentitled to attorney's fees based on a state statute and a\\n\\nprovision in the Deutsche Bank mortgage. The statute provides, in\\n\\nrelevant part, as follows:\\n\\n If a retail installment contract or evidence of\\n indebtedness provides for attorney's fees to be awarded\\n to the retail seller, lender or creditor in any action,\\n suit or proceeding against the retail buyer, borrower or\\n debtor involving the sale, loan or extension of credit,\\n such contract or evidence of indebtedness shall also\\n provide that:\\n\\n I. Reasonable attorney's fees shall be awarded to the\\n buyer, borrower or debtor if he prevails in\\n\\n (a) Any action, suit or proceeding brought by the retail\\n seller, lender or creditor; or\\n\\n (b) An action brought by the buyer, borrower or debtor[.]\\n\\nN.H. Rev. Stat. Ann. § 361-C:2 (emphases added). The Deutsche\\n\\nBank mortgage provides:\\n\\n\\n\\n\\n 15 We recognize that the district court, at various places in\\nits two orders related to equitable subrogation, seems to suggest\\nthat its hands were tied by state law. However, we understand the\\ndistrict court's rulings ultimately to rest on its determination\\nthat equity would not be served by applying equitable subrogation\\nin a situation where it would not be applied by state courts. See,\\ne.g., Deutsche Bank Nat'l Tr. Co. v. Pike, No. 15-cv-304-JD, 2017\\nWL 2608727, at *3 (D.N.H. Feb. 12, 2017) (\\\"Contrary to Deutsche\\nBank's theory, [Jennifer] would not receive a windfall through her\\nhomestead interest but instead would receive the protection\\nintended and provided by [the homestead statute].\\\").\\n\\n\\n - 24 -\\n\\f 25. Attorneys' Fees. Pursuant to . . . § 361-C:2, in\\n the event that Borrower shall prevail in (a) any action,\\n suit or proceeding, brought by Lender, or (b) an action\\n brought by Borrower, reasonable attorneys' fees shall be\\n awarded to Borrower.\\n\\n(Emphases added.) Jennifer did not sign the First Franklin, now\\n\\nDeutsche Bank, mortgage, and William is listed as the sole\\n\\n\\\"borrower.\\\" The term is not defined in the mortgage or in section\\n\\n361-C, but Jennifer concedes that she is not the \\\"borrower\\\" for\\n\\npurposes of the mortgage.\\n\\n The district court concluded that Jennifer is not\\n\\nentitled to attorney's fees under the statutory provision and the\\n\\nmortgage precisely because she \\\"is not the borrower.\\\" The court\\n\\nfurther held that even if Jennifer could be considered a \\\"debtor,\\\"\\n\\nthe statute and the mortgage provision do not apply because\\n\\nDeutsche Bank did not sue her for breach of the note or mortgage.\\n\\nNevertheless, on appeal, Jennifer presses the argument that she is\\n\\na \\\"debtor\\\" for purposes of the mortgage and, as such, is entitled\\n\\nto attorney's fees pursuant to the mortgage provision and section\\n\\n361-C:2. We generally review the district court's denial of\\n\\nattorney's fees for abuse of discretion but review any underlying\\n\\nconclusions of law de novo. In re Volkswagen & Audi Warranty\\n\\nExtension Litig., 692 F.3d 4, 13 (1st Cir. 2012).\\n\\n Deutsche Bank raises a plethora of reasons why Jennifer\\n\\nis not entitled to attorney's fees under section 361-C:2 and the\\n\\nmortgage. It suffices to say, however, that we essentially agree\\n\\n\\n - 25 -\\n\\fwith the district court's straightforward analysis.16 The court\\n\\ncorrectly determined that Jennifer is not entitled to the benefit\\n\\nof the mortgage's attorney's fees provision, which is expressly\\n\\nlimited to the \\\"borrower.\\\" Section 361-C:2 requires reciprocal\\n\\ntreatment of both sides of a debt contract -- here, the mortgagee\\n\\nand William -- but does not rewrite the mortgage's terms to render\\n\\nthe Bank responsible for the attorney's fees of a third party.\\n\\nThe district court did not commit legal error or otherwise abuse\\n\\nits discretion in denying her fee request.17\\n\\n\\n\\n\\n 16Among its other arguments, Deutsche Bank contends that the\\ndistrict court did not have jurisdiction to consider Jennifer's\\nfee request. Because Jennifer's entitlement to attorney's fees is\\neasily resolved on the merits, we do not address the jurisdictional\\nissue. See Cozza v. Network Assocs., Inc., 362 F.3d 12, 15 (1st\\nCir. 2004) (\\\"The rule is well established in this Circuit that\\nresolution of a complex jurisdictional issue may be avoided when\\nthe merits can easily be resolved in favor of the party challenging\\njurisdiction.\\\").\\n\\n 17 We note that it is somewhat disingenuous for Jennifer to\\ncontend she has rights arising under the mortgage given that she\\nhas repeatedly disavowed any connection to the mortgage, both in\\nstate court and before the district court. Courts generally do\\nnot approve of such attempts to have it both ways. See RFF Family\\nP'ship, LP v. Ross, 814 F.3d 520, 527 (1st Cir. 2016) (discussing\\nthe doctrine of judicial estoppel, which \\\"prevent[s] a litigant\\nfrom taking a litigation position that is inconsistent with a\\nlitigation position successfully asserted by him in an earlier\\nphase of the same case or in an earlier court proceeding\\\"\\n(alteration in original) (quoting Perry v. Blum, 629 F.3d 1, 8\\n(1st Cir. 2010))).\\n\\n\\n - 26 -\\n\\f ***\\n\\n For the foregoing reasons, we affirm as to both appeals.\\n\\nEach side shall bear its own costs.\\n\\n So ordered.\\n\\n\\n\\n\\n - 27 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":474,"cells":{"id":{"kind":"number","value":4592238,"string":"4,592,238"},"name":{"kind":"string","value":"Theresa FORTIER, Plaintiff, Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; Dartmouth Hitchcock Clinic Company Long Term Disability Plan, Defendants, Appellees."},"name_abbreviation":{"kind":"string","value":"Fortier v. Hartford Life & Accident Ins. Co."},"decision_date":{"kind":"string","value":"2019-02-20"},"docket_number":{"kind":"string","value":"18-1752P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Thompson, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"LYNCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1752\\n\\n THERESA FORTIER,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; DARTMOUTH\\n HITCHCOCK CLINIC COMPANY LONG TERM DISABILITY PLAN,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Landya B. McCafferty, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Thompson, and Barron,\\n Circuit Judges.\\n\\n\\n Jonathan M. Feigenbaum for Theresa Fortier.\\n Byrne J. Decker, with whom Scott K. Pomeroy and Ogletree,\\nDeakins, Nash, Smoak & Stewart, P.C. were on brief, for Hartford\\nLife and Accident Insurance Company and Dartmouth Hitchcock Clinic\\nCompany Long Term Disability Plan.\\n\\n\\n February 20, 2019\\n\\f LYNCH, Circuit Judge. A disability insurer, Hartford\\n\\nLife and Accident Insurance Company (\\\"Hartford\\\"), gave notice to\\n\\nTheresa Fortier that the long-term disability (\\\"LTD\\\") benefits it\\n\\nhad provided her under the Dartmouth Hitchcock Clinic Company Long\\n\\nTerm Disability Plan (the \\\"Plan\\\") would expire because she had not\\n\\nshown she was eligible for a continuation of those benefits. The\\n\\nnotice informed her she must file any appeal within 180 days of\\n\\nreceipt of the notice. She did not do so, filing her appeal about\\n\\ntwo months after this deadline.\\n\\n In this Employee Retirement Income Security Act of 1974\\n\\n(\\\"ERISA\\\") suit, Fortier first argues that her appeal was timely\\n\\nunder the Plan. She then argues that even if untimely, that\\n\\nuntimeliness should be excused under either of two doctrines: the\\n\\nERISA substantial compliance doctrine or a state law notice-\\n\\nprejudice rule. The district court rejected these arguments and\\n\\ngranted a motion for judgment on the administrative record for\\n\\nHartford and the Plan. Fortier v. Hartford Life & Accident Ins.\\n\\nCo., No. 16-CV-322-LM, 2018 WL 3542863, at *12 (D.N.H. July 23,\\n\\n2018). We also reject all these arguments and affirm. In\\n\\nrejecting the equitable arguments, our result is similar to that\\n\\nreached by the Seventh Circuit in Edwards v. Briggs & Stratton\\n\\nRet. Plan, 639 F.3d 355 (7th Cir. 2011).\\n\\n\\n\\n\\n - 2 -\\n\\f I.\\n\\n We describe the material undisputed facts. Because this\\n\\ncourt is not reviewing the merits of Hartford's 2013 \\\"adverse\\n\\nbenefit determination\\\"1 on Fortier's claim, facts concerning\\n\\nFortier's medical condition(s) and medical treatment are described\\n\\nonly where relevant.\\n\\nA. Illness and Initial LTD Claim\\n\\n In January 2008, Fortier was employed as a doctor by the\\n\\nDartmouth-Hitchcock Clinic, and so became a beneficiary and\\n\\nparticipant in an LTD benefits plan (the Plan), offered through\\n\\nHartford. The Plan provided for LTD benefits if a participant\\n\\nbecame disabled. There is no dispute that Fortier became disabled\\n\\nin May 2009.\\n\\n The Plan had limitations on the duration of LTD benefits,\\n\\nas relevant here, depending on the cause of the disability. One\\n\\nsuch duration limit was a twenty-four month limitation for\\n\\n\\n\\n\\n 1 Under ERISA regulations, an \\\"adverse benefit\\ndetermination\\\" is defined, in part, as:\\n\\n Any of the following: A denial, reduction, or\\n termination of, or a failure to provide or\\n make payment (in whole or in part) for, a\\n benefit, including any such denial, reduction,\\n termination, or failure to provide or make\\n payment that is based on a determination of a\\n participant's or beneficiary's eligibility to\\n participate in a plan . . . .\\n\\n29 C.F.R. § 2560.503–1(m)(4)(i).\\n\\n - 3 -\\n\\fdisability caused by \\\"Mental Illness and Substance Abuse Benefits\\\"\\n\\n(the \\\"Mental Illness Limitation\\\"). The Mental Illness Limitation\\n\\nstated, in part:\\n\\n If You are Disabled because of:\\n 1) Mental Illness that results from any\\n cause;\\n 2) any condition that may result from\\n Mental Illness . . .\\n [b]enefits will be payable:\\n 1) for as long as you are confined in\\n a hospital or other place licensed\\n to provide medical care for the\\n disabling condition; or\\n 2) if not confined, or after you are\\n discharged and still Disabled, for\\n a total of 24 month(s) for all such\\n disabilities during your lifetime.\\n\\nThe Plan defined \\\"Mental Illness\\\" as \\\"a mental disorder as listed\\n\\nin the current version of the Diagnostic and Statistical Manual of\\n\\nMental Disorders, published by the American Psychiatric\\n\\nAssociation. A Mental Illness may be caused by biological factors\\n\\nor result in physical symptoms or manifestations.\\\"\\n\\n Under the Plan, \\\"Mental Illness does not include the\\n\\nfollowing mental disorders outlined in the Diagnostic and\\n\\nStatistical Manual of Mental Disorders: . . . Delirium, Dementia,\\n\\nand Amnesic and Other Cognitive Disorders\\\" (emphasis added). It\\n\\nhas been Fortier's position that she suffers from a \\\"Cognitive\\n\\nDisorder\\\" such that the limitation period does not apply. To be\\n\\nclear, Fortier was eligible for and received benefits for at least\\n\\n\\n\\n\\n - 4 -\\n\\ftwenty-four months regardless of whether the cause of her\\n\\ndisability was a \\\"Mental Illness\\\" or a \\\"Cognitive Disorder.\\\"\\n\\n In November 2009, Fortier filed a disability claim with\\n\\nHartford under the Plan, stating that she could not work because\\n\\nof a disability as of May 6, 2009.2 In a \\\"Claimant Interview\\\" with\\n\\nHartford, Fortier, according to Hartford's contemporaneous notes,\\n\\nexplained that she had \\\"got[ten] sick with some form of infection\\\"\\n\\nand subsequently had \\\"significant problems with memory.\\\" Fortier\\n\\nmaintained this was corroborated by \\\"neurophysch[ological]\\n\\neval[uation].\\\"\\n\\n As part of Hartford's review of Fortier's claim,\\n\\nHartford obtained medical records from several doctors who had\\n\\ntreated Fortier. Her psychiatrist, Dr. Paul Belliveau, stated in\\n\\nJune 2009 that Fortier's primary diagnoses were \\\"Major Depressive\\n\\nDisorder\\\" and \\\"Cognitive Disorder NOS [(Not Otherwise\\n\\nSpecified)],\\\" from \\\"resolving encephalopathy.\\\"3 Her neurologist\\n\\n\\n\\n\\n 2 Fortier contracted a viral infection in April 2009 and\\nreported subsequent symptoms including issues with memory and\\ngeneral \\\"difficulty with various aspects of . . . cognitive\\nfunction.\\\" On May 6, 2009, Fortier stopped working due to her\\nmedical condition(s).\\n 3 Fortier has referred to this condition as one caused by\\n\\\"encephalitis,\\\" meaning inflammation of the brain generally caused\\nby an infection (often viral). Merriam Webster Medical Dictionary,\\nhttp://www.merriam-webster.com/medical (definition of\\n\\\"encephalitis\\\"). Dr. Belliveau, however, stated that the cause\\nwas \\\"encephalopathy,\\\" which is a broader term meaning a \\\"disease\\n\\n\\n - 5 -\\n\\fat the time, Dr. Evan Murray, found that the results of\\n\\nelectroencephalogram (EEG) and brain magnetic resonance imaging\\n\\n(MRI) tests were normal and stated that \\\"[i]t is probable that the\\n\\nmajority of Dr. Fortier's current cognitive difficulties are due\\n\\nto a mood disorder.\\\" In Dr. Murray's view, then, \\\"both the EEG\\n\\nand brain MRI did not reveal evidence to support such an etiology\\n\\n[of encephalopathy].\\\"\\n\\n After reviewing medical records and having the \\\"Claimant\\n\\nInterview\\\" with Fortier, Hartford notified Fortier in a letter\\n\\ndated December 18, 2009, that it had approved her disability claim\\n\\nand would start paying the appropriate benefits effective November\\n\\n2, 2009. This letter stated that \\\"[o]n a periodic basis we will\\n\\nbe providing you with supplemental claim forms for the purpose of\\n\\nfurnishing us with continued proof of disability.\\\" When Fortier's\\n\\nclaim was granted, a Manager at Hartford stated in Hartford's\\n\\ninternal notes that \\\"further clarification should be requested to\\n\\ndetermine whether Dr. Fortier's primary disabling diagnosis is due\\n\\nto a physical or [a] mental/nervous condition.\\\" Hartford had\\n\\npreviously \\\"coded\\\" Fortier's disability claim as a physical\\n\\ndiagnosis.\\n\\n\\n\\n\\nof the brain[,] especially: one involving alterations of brain\\nstructure.\\\" Id. (definition of \\\"encephalopathy\\\").\\n\\n\\n\\n - 6 -\\n\\fB. 2011 Adverse Benefit Determination and 2012 Appeal\\n\\n In 2010 and 2011, Hartford periodically requested\\n\\nupdated medical information from Fortier. In response, Dr.\\n\\nBelliveau stated in January 2011, on an \\\"Attending Physician's\\n\\nStatement\\\" form, that Fortier's \\\"[c]ognitive dysfunction appears\\n\\nto be grad[ually] improving\\\" and the \\\"[p]rimary concern now is\\n\\nincreasing depression.\\\" In February 2010, an Examiner at Hartford\\n\\nspoke with Fortier on the phone and, according to Hartford's notes,\\n\\nFortier declined to undergo further testing, saying that further\\n\\nneuropsychological tests would not make sense. Later, Hartford\\n\\nrequested updated medical records from Dr. Belliveau on April 8,\\n\\n2011, which he provided promptly. Dr. Belliveau's notes indicated\\n\\nthat Fortier was \\\"reluctant to retake the neuropsychology testing\\\"\\n\\nin July 2010. After further requests for information and\\n\\ncommunication with Fortier, an Examiner at Hartford referred the\\n\\ncase for a medical review \\\"for clarification of [Fortier's]\\n\\ndisabling condition\\\" in June 2011. In July 2011, a nurse employed\\n\\nby Hartford determined that Fortier's disabling condition was a\\n\\nmental illness rather than a cognitive disorder or other physical\\n\\nailment. In August 2011, Hartford continued to write to Fortier's\\n\\ntreating physicians for further information. On September 13,\\n\\n2011, Hartford determined, in its view, that an \\\"in-depth . . .\\n\\nreview\\\" had \\\"found no support for a physical [disabling\\n\\ncondition].\\\"\\n\\n\\n - 7 -\\n\\f In a letter dated September 13, 2011, Hartford notified\\n\\nFortier that her benefits would terminate on November 1, 2011,\\n\\nbecause the Plan's Mental Illness Limitation applied to her\\n\\ndisability. Hartford's letter stated that \\\"[i]f you do not agree\\n\\nwith our denial, in whole or in part, and you wish to appeal our\\n\\ndecision, you or your authorized representative must write to us\\n\\nwithin one hundred eighty (180) days from your receipt of this\\n\\nletter.\\\" About 174 days after receipt of this letter, Fortier's\\n\\nattorney requested a sixty-day extension to appeal the adverse\\n\\nbenefit determination. Hartford granted this request, and the\\n\\ntime to file an appeal was extended to May 11, 2012. Fortier,\\n\\nthrough her attorney, appealed. That appeal resulted in an\\n\\nextension of LTD benefits.\\n\\n In a letter to Fortier's attorney dated May 22, 2012,\\n\\nHartford stated that \\\"we have determined that Dr. Fortier is\\n\\nentitled to continued LTD benefits beyond November 1, 2011, subject\\n\\nto all policy provisions and guidelines,\\\" but did not specify the\\n\\nreason. This deficiency was cured within two weeks. In a June 4,\\n\\n2012, follow-up letter to Fortier's attorney, Hartford provided a\\n\\nreason for not cutting off and for continuing her LTD benefits:\\n\\n\\\"As Dr. Fortier was not notified until the letter dated 09/13/2011\\n\\nof the limitation for Mental Illness Benefits she is subject to\\n\\nthe limitation beginning 09/13/2011.\\\" That is, Hartford restarted\\n\\nthe twenty-four month period (for benefits paid due to a disability\\n\\n\\n - 8 -\\n\\ffalling under the Mental Illness Limitation) anew from September\\n\\n13, 2011, because of the lack of prior notice to Fortier regarding\\n\\nthe Mental Illness Limitation. The letter explicitly stated that\\n\\n\\\"no benefits will be payable beyond 09/12/2013,\\\" except that\\n\\nbenefits would be payable if, and for as long as, \\\"[Fortier is]\\n\\nconfined in a hospital or other place licensed to provided medical\\n\\ncare for the disabling condition.\\\" This letter also sought further\\n\\ninformation from Fortier and Fortier's treating physicians.\\n\\n After the June 4, 2012, letter, Hartford repeatedly\\n\\nrequested more information about Fortier's disabling condition\\n\\nfrom Fortier, Fortier's attorney, and Fortier's healthcare\\n\\nproviders4 throughout the rest of 2012 and the first seven months\\n\\nof 2013. A June 6, 2012, letter to Fortier's attorney requested\\n\\n\\\"more information to evaluate [Fortier's] claim,\\\" including an\\n\\n\\\"Attending Physician's Statement of Continued Disability\\\" from\\n\\neach of Fortier's treating physicians. This letter requested this\\n\\ninformation by July 9, 2012, but the record does not show that\\n\\nHartford received any such information by this date. A July 13,\\n\\n2012, letter referred to the June 6 letter and made the same\\n\\nrequest for \\\"more information to evaluate [Fortier's] claim,\\\" this\\n\\ntime by August 5, 2012. Hartford received an updated Attending\\n\\n\\n\\n 4 All of the letters sent directly to healthcare providers\\nattached a proper authorization form, signed by Fortier, for the\\nrelease of medical records and personal information.\\n\\n\\n\\n - 9 -\\n\\fPhysician's Statement from Dr. Belliveau, dated August 16, 2012,\\n\\nbut the record does not show the receipt of an Attending\\n\\nPhysician's Statement from any other treating physician. An August\\n\\n7, 2012, letter from Hartford requested assistance from Fortier's\\n\\nattorney in obtaining records from two particular hospitals where\\n\\nFortier had received medical care. Nothing in the record suggests\\n\\nthat Hartford received the requested information from the two\\n\\nhospitals from Fortier's attorney.\\n\\n A February 15, 2013, Hartford letter to Fortier's\\n\\nattorney similarly requested assistance in obtaining information\\n\\nfrom a medical provider, including updated Attending Physician's\\n\\nStatements. Dr. Belliveau returned an Attending Physician's\\n\\nStatement form that stated \\\"See attached\\\" and was otherwise nearly\\n\\nblank. The attached documents were Dr. Belliveau's office notes\\n\\nregarding Fortier for May 2011 through November 2012. There were\\n\\nno records pertaining to January and February 2013. A February\\n\\n18, 2013, letter to Dr. Belliveau requested a completed Attending\\n\\nPhysician's Statement as well as \\\"any other information you feel\\n\\nis pertinent to the processing of [Fortier's] claim.\\\" A March 29,\\n\\n2013, letter to Fortier's attorney sought assistance in obtaining\\n\\na completed form from Dr. Belliveau, rather than office notes and\\n\\nthe \\\"incomplete\\\" form. There is no evidence that this information\\n\\nwas then provided.\\n\\n\\n\\n\\n - 10 -\\n\\f Hartford sent a May 10, 2013, letter to Fortier's\\n\\nattorney, which stated that the letter was a \\\"final request for\\n\\nthe information [an Attending Physician's Statement] we need to\\n\\nfully evaluate Dr. Fortier's claim for LTD benefits\\\" (emphasis\\n\\nadded). It referred to several prior letters requesting\\n\\ninformation. According to Hartford's internal records, on July 8,\\n\\n2013, Dr. Belliveau sent a copy of the same incomplete form that\\n\\nhe had previously sent in February 2013.\\n\\n Even after this \\\"final request,\\\" Hartford sent several\\n\\nletters in July 2013 -- one directly to Fortier, two to Fortier's\\n\\nhealthcare providers -- seeking additional records or other\\n\\npertinent information.\\n\\nC. 2013 Adverse Benefit Determination\\n\\n In a letter to Fortier's attorney dated July 17, 2013,\\n\\nand apparently sent on July 23, 2013, (the \\\"July 17/23 letter\\\")\\n\\nHartford stated that it had \\\"completed [its] review of [Fortier's]\\n\\nclaim for benefits\\\" and it would stop paying LTD benefits to\\n\\nFortier on September 13, 2013, because it had determined on the\\n\\nrecord that the Mental Illness Limitation applied to Fortier. The\\n\\nletter stated: \\\"If you do not agree with our denial, in whole or\\n\\nin part, and you wish to appeal our decision, you or your\\n\\nauthorized representative must write to us within one hundred\\n\\neighty (180) days from the receipt of this letter\\\" and briefly\\n\\n\\n\\n\\n - 11 -\\n\\fexplained the appeals procedure (such as the address to which\\n\\ndocumentation should be sent).\\n\\n A few weeks after this letter, on August 10, 2013,\\n\\nFortier's attorney wrote to Hartford. He acknowledged notice of\\n\\nan adverse benefit determination and stated he had reviewed the\\n\\n\\\"adverse-benefit-decision-letter\\\"; he requested Fortier's claim\\n\\nfile, among other things. Hartford complied with this request on\\n\\nAugust 19, 2013. Between August 2013 and March 2014, nothing in\\n\\nthe record indicates that Fortier's attorney retracted his\\n\\nstatement that Hartford had made an adverse benefit determination.\\n\\nD. March 2014 Appeal Letter\\n\\n Fortier did not appeal within 180 days of receipt of the\\n\\nnotice (the July 17/23 letter). Fortier, through her attorney,\\n\\nsent a letter dated March 7, 2014, purporting to appeal. This was\\n\\nabout two months later than 180 days from the receipt of the July\\n\\n17/23 letter. Hartford responded in a letter dated March 26, 2014,\\n\\nstating that it would not consider Fortier's appeal because it was\\n\\nuntimely.5\\n\\n\\n\\n\\n 5 That same day, the Harford Appeal Specialist who signed\\nthe March 26 letter spoke with Fortier's attorney on the phone.\\nHartford's call notes from this call state that Fortier's attorney\\n\\\"disagree[d] with the decision because the claimant's last payment\\nwas in September,\\\" but do not show that he offered any other excuse\\nfor filing later than 180 days after receiving the July 17/23\\nletter.\\n\\n\\n - 12 -\\n\\fE. Federal Lawsuit\\n\\n About two years after Fortier's attempted administrative\\n\\nappeal in March 2014, she filed a two-count complaint in federal\\n\\ndistrict court under ERISA Section 502(a), 29 U.S.C. § 1132(a) on\\n\\nJuly 15, 2016. Count One sought reinstatement of LTD benefits,\\n\\nwhich had been terminated in accordance with the July 17/23 letter.\\n\\nCount Two sought attorneys' fees and costs under 29 U.S.C.\\n\\n§ 1132(g)(1). On December 14, 2016, Fortier filed an amended\\n\\ncomplaint, adding a count challenging the legality of the Mental\\n\\nIllness Limitation under the Americans with Disabilities Act\\n\\n(\\\"ADA\\\").\\n\\n On January 27, 2017, Hartford moved to dismiss (styled\\n\\nas a partial motion to dismiss), arguing that Fortier had not\\n\\nexhausted her administrative remedies and had not set forth a claim\\n\\nunder the ADA; Fortier opposed this motion. On September 11, 2017,\\n\\nthe District Court dismissed the ADA claim but not Count One\\n\\nregarding the denial of LTD benefits. The parties each then filed\\n\\nmotions for judgment on the administrative record.\\n\\n The district court issued a Memorandum and Opinion and\\n\\nentered judgment in Hartford's favor. Fortier, 2018 WL 3542863.\\n\\nThe district court held that Fortier had not timely appealed, and\\n\\nso had not exhausted her administrative remedies. Id. at *11.\\n\\nThe district court rejected Fortier's equitable arguments that her\\n\\nappeal was timely under either the substantial compliance doctrine\\n\\n\\n - 13 -\\n\\for New Hampshire's notice-prejudice rule. Id. at *8-*11. Fortier\\n\\nappealed from the judgment. Her appeal does not contest the\\n\\ndismissal of the ADA claim.\\n\\n II.\\n\\n We review the district court's grant of judgment on the\\n\\nadministrative record de novo. Glista v. Unum Life Ins. Co. of\\n\\nAm., 378 F.3d 113, 125 (1st Cir. 2004). We need not consider the\\n\\nappropriate standard of review for \\\"reviewing determinations made\\n\\nregarding benefits claims,\\\" Rodríguez–López v. Triple-S Vida,\\n\\nInc., 850 F.3d 14, 20 (1st Cir. 2017), because our review examines\\n\\nwhether Fortier exhausted her administrative remedies and not the\\n\\nmerits of Hartford's adverse benefit determination.\\n\\n In order to bring suit under a benefits plan subject to\\n\\nERISA, a beneficiary must exhaust the plan's administrative\\n\\nremedies. Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d\\n\\n49, 51-52 (1st Cir. 2014); see Heimeshoff v. Hartford Life &\\n\\nAccident Ins. Co., 571 U.S. 99, 105 (2013) (noting that \\\"courts of\\n\\nappeals have uniformly required that participants exhaust internal\\n\\nreview before bringing a claim [under ERISA] for judicial review\\\").\\n\\n We first address Fortier's arguments about the proper\\n\\nstarting date for the 180-day time limit for appeals and about\\n\\nHartford's compliance with the Plan, before considering Fortier's\\n\\nequitable arguments concerning the substantial compliance doctrine\\n\\nand New Hampshire's common law notice-prejudice rule.\\n\\n\\n - 14 -\\n\\fA. ERISA's Requirements and the 180-Day Time Limit\\n\\n Fortier argues that an ERISA regulation defining an\\n\\n\\\"adverse benefit determination\\\" requires that the 180-day time\\n\\nlimit start at the date of termination of benefits and not from\\n\\nthe date of notice. This argument fails.\\n\\n Fortier's reading of ERISA regulations is plainly wrong.\\n\\nThe relevant ERISA regulation does not define an \\\"adverse benefit\\n\\ndetermination\\\" as a \\\"contemporary cessation of benefits,\\\" as\\n\\nFortier contends.6 The ERISA regulation concerning notice of an\\n\\nadverse benefit determination states in part that a complying group\\n\\nhealth plan7 must \\\"[p]rovide claimants at least 180 days following\\n\\nreceipt of a notification of an adverse benefit determination\\n\\nwithin which to appeal the determination.\\\" 29 C.F.R. § 2560.503-\\n\\n1(h)(3)(i) (emphasis added). Notice is the key event. The ERISA\\n\\n\\n\\n\\n 6 In relevant part, the regulation states that \\\"[t]he term\\n'adverse benefit determination' means: (i) Any of the following:\\na denial, reduction, or termination of, or a failure to provide or\\nmake payment (in whole or in part) for, a benefit.\\\" 29 C.F.R.\\n§ 2560.503–1(m)(4)(i). Denial of benefits, termination of\\nbenefits, and reduction of benefits are listed separately by this\\ndefinition, and so it would not make sense for the term \\\"denial\\\"\\nto mean only the \\\"termination\\\" of benefits.\\n 7 The parties agree that the Plan was a group health plan.\\nUnder ERISA, \\\"[t]he term 'group health plan' means an employee\\nwelfare benefit plan providing medical care . . . to participants\\nor beneficiaries directly or through insurance, reimbursement, or\\notherwise.\\\" 29 U.S.C. § 1167(1).\\n\\n\\n\\n - 15 -\\n\\fregulations do not require that the time limit for an\\n\\nadministrative appeal run from the date of termination of benefits.\\n\\nB. Hartford's Conduct\\n\\n Fortier also argues that: Hartford's letters from June\\n\\n4, 2012, and July 17/23, 2013, were inconsistent; and a portion of\\n\\nHartford's \\\"Product Manual\\\" (in essence, internal guidelines)\\n\\nshows that Hartford breached its own internal guidelines.8 We\\n\\nassume for the sake of argument that Hartford's conduct is relevant\\n\\nhere.\\n\\n These arguments fail, as Hartford's conduct was\\n\\nconsistent with ERISA and relevant regulations. The Plan (which\\n\\nis the governing document) plainly laid out the 180-day notice\\n\\nrule. Specifically, the Plan's Certificate of Insurance, which\\n\\nwas expressly incorporated as part of the Plan terms, included --\\n\\nunder the heading \\\"Claim Denial: What recourse do I have if my\\n\\nclaim is denied?\\\" -- a clear statement that a claimant \\\"must\\n\\nrequest a review upon written application within . . . 180 days of\\n\\nreceipt of claim denial.\\\" The Certificate of Insurance also\\n\\n\\n 8 Fortier makes a passing reference in the \\\"Statement of\\nthe Relevant Facts\\\" section of her brief to language in the\\nCertificate of Insurance requiring that, \\\"On any wholly or\\npartially denied claim, you or your representative must appeal\\nonce to [Hartford] for a full and fair review.\\\" However, Fortier's\\npoint is not clear; if the implicit argument is that the latter\\nappeal filed in March 2014 was unnecessary to exhaust Fortier's\\nadministrative remedies because she had already appealed in 2012\\non the same claim, it is waived for lack of development. See\\nUnited States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n\\n - 16 -\\n\\fstated, under the heading \\\"Appealing Denials of Claims for\\n\\nBenefits,\\\" that:\\n\\n On any wholly or partially denied claim, you\\n or your representative must appeal once to\\n [Hartford] for a full and fair review. You\\n must complete this claim appeal process before\\n you file an action in court. Your appeal\\n request must be in writing and be received by\\n [Hartford] no later than the expiration of 180\\n days from the date you received your claim\\n denial.\\n\\nThis document refutes Fortier's argument. Further, the 180-day\\n\\ntime limit complies with the relevant ERISA regulation. See 29\\n\\nC.F.R. § 2560.503-1(h)(3)(i).\\n\\n The July 17/23 letter from Hartford to Fortier's\\n\\nattorney clearly stated, \\\"If you do not agree with our denial, in\\n\\nwhole or in part, and you wish to appeal our decision, you or your\\n\\nauthorized representative must write to us within one hundred\\n\\neighty (180) days from the receipt of this letter.\\\" Fortier\\n\\nacknowledges that this letter gave notice of her appeal rights.\\n\\n Fortier contrasts the June 4, 2012, and the July 17/23,\\n\\n2013, letters from Hartford, arguing that \\\"[o]ne cannot be an\\n\\n'adverse benefit determination' and not the other.\\\" This argument\\n\\nis simply wrong and mischaracterizes the letters. The June 4,\\n\\n2012, letter gave reasons for the extension of benefits discussed\\n\\nin the May 22, 2012, letter, but also warned of the new termination\\n\\ndate of those benefits. The July 17/23 letter, sent more than a\\n\\nyear later, announced the final adverse benefit determination and\\n\\n\\n - 17 -\\n\\fgave notice of the right to appeal within 180 days of receipt of\\n\\nthe letter.\\n\\n Fortier also argues that a page from Hartford's Product\\n\\nManual demonstrates that \\\"Hartford believes a letter should be\\n\\nsent advising of presuit appeals rights when the claim is paid and\\n\\nclosed, not two months before.\\\" The language Fortier focuses on\\n\\nis a portion of an instruction to Hartford employees that \\\"appeal\\n\\nlanguage should again be utilized once the limited benefit duration\\n\\nhas been paid and the claim terminated.\\\" This page is not relevant\\n\\nhere, and likely not admissible.9\\n\\n\\n\\n\\n 9 This page from the Product Manual is not part of the\\nadministrative record in this case and was obtained by Fortier's\\nattorney through discovery in a different and unrelated case in\\n2009 (which he acknowledges). \\\"[S]ome very good reason is needed\\nto overcome the presumption that the record on review is limited\\nto the record before the administrator.\\\" Morales-Alejandro v.\\nMed. Card Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007) (quoting\\nListon v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st\\nCir. 2003)).\\n In Glista, this court allowed the consideration of two\\ninternal insurance company documents; such internal documents \\\"are\\nmost likely to be relevant where they have been authenticated,\\nhave been generated or adopted by the plan administrator, concern\\nthe policy in question, are timely to the issue in the case, are\\nconsistently used, and were known or should have been known by\\nthose who made the decision.\\\" 378 F.3d at 123.\\n Here, we do not know whether the Product Manual reflects\\nHartford's understanding of the Plan or its appeals procedures.\\nFurther, there is no evidence in the record showing that Hartford\\nused this Product Manual, or that it was or should have been known\\nto the relevant Hartford employees. Taken together, these facts\\nmake the Product Manual irrelevant here.\\n\\n\\n\\n - 18 -\\n\\f In summary, Hartford properly followed the terms of the\\n\\nPlan, which met the ERISA requirements. Hartford's July 17/23\\n\\nletter was an adverse benefit determination and provided notice of\\n\\nthe right to appeal. The 180-day time limit began at the receipt\\n\\nof this letter, and so Fortier's attempted appeal in March 2014\\n\\nwas untimely. In the ERISA context, \\\"[h]aphazard waiver of time\\n\\nlimits would increase the probability of inconsistent results.\\\"\\n\\nTerry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998).\\n\\nC. Inapplicability of the Doctrine of Substantial Compliance\\n\\n The judicially-created doctrine of \\\"substantial\\n\\ncompliance,\\\" an ERISA doctrine, has been applied to excuse an\\n\\ninsurer's failure to comply precisely with ERISA's notice\\n\\nrequirements, so long as the insured person was \\\"supplied with a\\n\\nstatement of reasons that, under the circumstances of the case,\\n\\npermitted a sufficiently clear understanding of the\\n\\nadministrator's position to permit effective review.\\\" Niebauer v.\\n\\nCrane & Co., 783 F.3d 914, 927 (1st Cir. 2015) (quoting Terry, 145\\n\\nF.3d at 39); see Santana-Díaz v. Metro. Life Ins. Co., 816 F.3d\\n\\n172, 178 (1st Cir. 2016).10 In fact, the doctrine assists with the\\n\\n\\n 10 Some other circuits have applied a broader version of\\nthe doctrine to other situations under ERISA, such as an insurer's\\nsubstantial compliance with a change of beneficiary. See, e.g.,\\nDavis v. Combes, 294 F.3d 931, 941-42 (7th Cir. 2002) (change of\\nbeneficiary); but see Hall v. Metro. Life Ins. Co., 750 F.3d 995,\\n1000-01 (8th Cir. 2014) (in a different context, rejecting the\\ndoctrine in a change of beneficiary situation). But no circuit\\nhas applied the doctrine to excuse a late administrative appeal by\\n\\n\\n - 19 -\\n\\fprompt review of denial of benefits, and Fortier is arguing for\\n\\ndelay, not prompt review.\\n\\n Fortier makes a fairness argument: since Hartford has at\\n\\nleast once had the doctrine applied in its favor, Fortier should\\n\\nreceive the benefit of the doctrine. See, e.g., Topalian v.\\n\\nHartford Life Ins. Co., 945 F. Supp. 2d 294, 339 (E.D.N.Y. 2013)\\n\\n(finding that \\\"Hartford was in substantial compliance with the\\n\\n[Department of Labor]'s regulatory deadlines\\\" despite Hartford\\n\\nmaking a late benefit determination). Neither the caselaw nor 29\\n\\nC.F.R. § 2560.503-1(b)(5)11 supports Fortier's argument.12\\n\\n We agree generally with Edwards, where the Seventh\\n\\nCircuit held that the substantial compliance doctrine did not apply\\n\\n\\n\\n\\na claimant, which is what Fortier asks that we do, and some have\\nrejected the argument. See, e.g., Edwards, 639 F.3d at 362-63.\\n 11 This regulation addresses the \\\"[o]bligation to establish\\nand maintain reasonable claims procedures.\\\"\\n 12 We do not specifically address all of Fortier's broad\\nstatements concerning duties of loyalty, good faith, and fair\\ndealing. These assertions rest on the assumption that a \\\"desire\\nto save money had to be the overriding force in Hartford's biased\\nclaim adjudication\\\" and the related assumption that \\\"Hartford's\\nimproper motive caused it to ultimately refuse to review Dr.\\nFortier's . . . appeal.\\\"\\n These assumptions are not adequately supported in\\nFortier's briefs, nor in the record. Fortier does not point to\\nanything in the record that clearly suggests, let alone proves,\\nsuch an improper motive. Her primary support for such a motive is\\nthe relative speed (about two weeks) in which Hartford granted\\nFortier's May 2012 appeal, but this does not itself demonstrate a\\n\\\"biased claim adjudication.\\\"\\n\\n\\n - 20 -\\n\\fto a claimant's late appeal from a denial of benefits. The Seventh\\n\\nCircuit reasoned that:\\n\\n [I]t seems consistent neither with the\\n policies underlying the requirement of\\n exhaustion of administrative remedies in ERISA\\n cases nor with judicial economy to import into\\n the exhaustion requirement the substantial\\n compliance doctrine. To so hold would render\\n it effectively impossible for plan\\n administrators to fix and enforce\\n administrative deadlines while involving\\n courts incessantly in detailed, case-by-case\\n determinations as to whether a given\\n claimant's failure to bring a timely appeal\\n from a denial of benefits should be excused or\\n not.\\n\\nEdwards, 639 F.3d at 362.13 As in Edwards, see id. at 359, the\\n\\nPlan here contained a clear deadline for appeals of adverse benefit\\n\\ndeterminations. In coming to its conclusion, the Seventh Circuit\\n\\ndetermined that, though the plan administrator had discretion to\\n\\nconsider an untimely appeal, the claimant \\\"ha[d] never offered an\\n\\nexplanation for the untimeliness of her appeal that would warrant\\n\\nsuch an exercise of discretion in her favor [by the plan\\n\\nadministrator].\\\" Id. at 362. The same is true here. We find\\n\\nconvincing the concerns about the harms that would result from\\n\\napplying the substantial compliance doctrine to excuse a\\n\\nclaimant's failure to meet the exhaustion requirement.14\\n\\n\\n\\n\\n 13 We acknowledge that there may well be ERISA cases where\\ncertain exceptions and doctrines can dictate a different outcome.\\n\\n 14 Fortier has not made an equitable tolling argument.\\n\\n\\n - 21 -\\n\\f Further, the Supreme Court has discussed ERISA's\\n\\n\\\"'careful balancing' between ensuring fair and prompt enforcement\\n\\nof rights under a plan and the encouragement of the creation of\\n\\nsuch plans.\\\" Aetna Health Inc. v. Davila, 542 U.S. 200, 215 (2004)\\n\\n(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987));\\n\\nsee also Heimeshoff, 571 U.S. at 108 (noting that a \\\"focus on the\\n\\nwritten terms of the plan is the linchpin of\\\" the ERISA system).\\n\\nAdoption of Fortier's argument would risk upsetting this balance\\n\\nand reducing the incentive for employers to set up benefit plans.\\n\\n Next, Fortier's reliance on 29 C.F.R. § 2560.503-1(b)(5)\\n\\nis fundamentally misconceived. Nothing in the regulation would be\\n\\n\\\"undermined by Hartford when it applies deadlines strictly against\\n\\nplan participants.\\\" In fact, \\\"ERISA's exhaustion requirement\\n\\nserves different purposes than the denial of claims process,\\\"\\n\\nFortier, 2018 WL 3542863, at *10, and so all aspects of such\\n\\nprocesses need not be the same.\\n\\n The substantial compliance doctrine does not excuse\\n\\nFortier's untimely ERISA administrative appeal.15\\n\\n\\n\\n\\n 15 Fortier makes no argument that we should excuse her\\nfailure to exhaust the available administrative remedies. See,\\ne.g., Medina v. Metro. Life Ins. Co., 588 F.3d 41, 47 (1st Cir.\\n2009); Madera v. Marsh USA, Inc., 426 F.3d 56, 62-63 (1st Cir.\\n2005); Turner v. Fallono Cmty. Health Plan, Inc., 127 F.3d 196,\\n200 (1st Cir. 1997); Drinkwater v. Metro. Life Ins. Co., 846 F.2d\\n821, 826 (1st Cir. 1988).\\n\\n\\n - 22 -\\n\\fD. Inapplicability of New Hampshire's Notice-Prejudice Rule\\n\\n Fortier argues next that New Hampshire's common law\\n\\nnotice-prejudice rule (where an insurer must show prejudice in\\n\\norder to deny certain limited types of untimely insurance claims)\\n\\nshould apply to her situation. Our own case law leads us to reject\\n\\nthe argument, as do decisions of our sister circuits. See Edwards,\\n\\n639 F.3d at 363; Chang v. Liberty Life Assurance Co., 247 F. App'x\\n\\n875, 878 (9th Cir. 2007).\\n\\n This court, discussing ERISA appeals procedures and the\\n\\nexhaustion requirement, has stated that:\\n\\n Congress' apparent intent in mandating these\\n internal claims procedures was to minimize the\\n number of frivolous ERISA lawsuits; promote\\n the consistent treatment of benefit claims;\\n provide a nonadversarial dispute resolution\\n process; and decrease the cost and time of\\n claims settlement. It would be anomalous if\\n the same reasons which led Congress to require\\n plans to provide remedies for ERISA claimants\\n did not lead courts to see that those remedies\\n are regularly utilized.\\n\\nTerry, 145 F.3d at 40 (quoting Makar v. Health Care Corp. of the\\n\\nMid-Atlantic (CareFirst), 872 F.2d 80, 83 (4th Cir. 1989)); accord\\n\\nSchorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734, 739\\n\\n(7th Cir. 2012); Kennedy v. Empire Blue Cross & Blue Shield, 989\\n\\nF.2d 588, 594 (2d Cir. 1993). This court stated further in Terry\\n\\nthat \\\"[i]t would hardly make sense to permit the filing of [a late]\\n\\nappeal . . . in light of the internal claims procedures' aims of\\n\\nconsistency and economy.\\\" Terry, 145 F.3d at 40. Adopting\\n\\n\\n - 23 -\\n\\fFortier's argument would reduce consistency in determinations and\\n\\nnational consistency. Further, \\\"permitting appeals well after the\\n\\ntime for them has passed can only increase the cost and time of\\n\\nthe settlement process.\\\" Id. The exhaustion requirement -- and\\n\\nseveral of its underlying policy goals -- would be undercut by an\\n\\nextension of a state law notice-prejudice rule to ERISA appeals.\\n\\nSee Stacy v. Appalachian Regional Healthcare, Inc., 259 F. Supp.\\n\\n3d 644, 654 (E.D. Ky. 2017).\\n\\n The Seventh and Ninth Circuits have agreed that state\\n\\ncommon law notice-prejudice rules do not apply to ERISA appeals.\\n\\nSee Edwards, 639 F.3d at 363; Chang, 247 F. App'x at 878. Indeed,\\n\\nno federal court has applied any state's common law notice-\\n\\nprejudice rule to excuse a late administrative ERISA appeal.16\\n\\n\\n\\n\\n 16 The District Court for the Eastern District of\\nPennsylvania suggested in dictum that an untimely ERISA appeal\\nwould have been subject to the notice-prejudice rule. Foley v.\\nInt'l Bhd. of Elec. Workers Local Union 98 Pension Fund, 91 F.\\nSupp. 2d 797, 803 n.6 (E.D. Pa. 2000) (\\\"Even if [the plaintiff's]\\nappeal were untimely, defendants would not prevail, because they\\nhave not shown that they were prejudiced by the untimely\\nsubmission, as they are required to do under the Supreme Court's\\nrecent decision in UNUM.\\\")\\n This footnote appears to rest on a misunderstanding of\\nUNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999), though, and is\\nnot a holding. UNUM focused on California's relatively broad\\nnotice-prejudice rule and on California's specific policy\\ninterests underlying this rule; it still did not extend\\nCalifornia's notice-prejudice rule to an ERISA appeal. See id. at\\n372-73. Further, it made no express holding about other states'\\nnotice-prejudice rules, see generally id., and simply noted that\\n\\\"[d]ecisions of courts in [some] other States . . . indicate that\\nthe notice-prejudice rule addresses policy concerns specific to\\n\\n\\n - 24 -\\n\\fSee, e.g., Chang, 247 F. App'x at 878 (\\\"[T]o extend the notice-\\n\\nprejudice rule to ERISA appeals would extend the rule substantially\\n\\nbeyond its previous uses.\\\").\\n\\n We add that New Hampshire has never suggested that its\\n\\nnotice-prejudice rule applies to ERISA appeals, and note that the\\n\\nstate has only applied the doctrine where the facts involve an\\n\\ninitial claim made in an occurrence-based insurance policy.17 See,\\n\\ne.g., Bianco Prof'l Ass'n v. Home Ins. Co., 740 A.2d 1051, 1057\\n\\n(N.H. 1999). There is no reason to think that the New Hampshire\\n\\ncourts would countenance Fortier's attempted use of the notice-\\n\\nprejudice rule.\\n\\n III.\\n\\n For the stated reasons, the decision of the district\\n\\ncourt is affirmed. Costs are awarded to Hartford.\\n\\n\\n\\n\\ninsurance,\\\" id. at 372. Indeed, the court acknowledged \\\"States'\\nvarying insurance regulations.\\\" Id. at 376 n.6.\\n 17 Fortier also cites a New Hampshire law in support of her\\nargument that an initial claim should be treated the same as an\\nappeal under New Hampshire's notice-prejudice rule. This law,\\ntitled \\\"Unfair Methods, Acts, and Practices Defined,\\\" bars\\ninsurers from \\\"[n]ot attempting in good faith to effectuate prompt,\\nfair and equitable settlements or compromises of claims in which\\nliability has become reasonably clear.\\\" N.H. Rev. Stat. Ann.\\n§ 417:4(XV)(a)(4). This provision is inapposite: Liability was\\nnot reasonably clear, and the record does not demonstrate bad faith\\non the part of Hartford.\\n\\n\\n - 25 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4369491/\", \"author_raw\": \"LYNCH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"BARRON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4592238/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Theresa FORTIER, Plaintiff, Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; Dartmouth Hitchcock Clinic Company Long Term Disability Plan, Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1752\n\n THERESA FORTIER,\n\n Plaintiff, Appellant,\n\n v.\n\n HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; DARTMOUTH\n HITCHCOCK CLINIC COMPANY LONG TERM DISABILITY PLAN,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Landya B. McCafferty, U.S. District Judge]\n\n\n Before\n\n Lynch, Thompson, and Barron,\n Circuit Judges.\n\n\n Jonathan M. Feigenbaum for Theresa Fortier.\n Byrne J. Decker, with whom Scott K. Pomeroy and Ogletree,\nDeakins, Nash, Smoak & Stewart, P.C. were on brief, for Hartford\nLife and Accident Insurance Company and Dartmouth Hitchcock Clinic\nCompany Long Term Disability Plan.\n\n\n February 20, 2019\n\f LYNCH, Circuit Judge. A disability insurer, Hartford\n\nLife and Accident Insurance Company (\"Hartford\"), gave notice to\n\nTheresa Fortier that the long-term disability (\"LTD\") benefits it\n\nhad provided her under the Dartmouth Hitchcock Clinic Company Long\n\nTerm Disability Plan (the \"Plan\") would expire because she had not\n\nshown she was eligible for a continuation of those benefits. The\n\nnotice informed her she must file any appeal within 180 days of\n\nreceipt of the notice. She did not do so, filing her appeal about\n\ntwo months after this deadline.\n\n In this Employee Retirement Income Security Act of 1974\n\n(\"ERISA\") suit, Fortier first argues that her appeal was timely\n\nunder the Plan. She then argues that even if untimely, that\n\nuntimeliness should be excused under either of two doctrines: the\n\nERISA substantial compliance doctrine or a state law notice-\n\nprejudice rule. The district court rejected these arguments and\n\ngranted a motion for judgment on the administrative record for\n\nHartford and the Plan. Fortier v. Hartford Life & Accident Ins.\n\nCo., No. 16-CV-322-LM, 2018 WL 3542863, at *12 (D.N.H. July 23,\n\n2018). We also reject all these arguments and affirm. In\n\nrejecting the equitable arguments, our result is similar to that\n\nreached by the Seventh Circuit in Edwards v. Briggs & Stratton\n\nRet. Plan, 639 F.3d 355 (7th Cir. 2011).\n\n\n\n\n - 2 -\n\f I.\n\n We describe the material undisputed facts. Because this\n\ncourt is not reviewing the merits of Hartford's 2013 \"adverse\n\nbenefit determination\"1 on Fortier's claim, facts concerning\n\nFortier's medical condition(s) and medical treatment are described\n\nonly where relevant.\n\nA. Illness and Initial LTD Claim\n\n In January 2008, Fortier was employed as a doctor by the\n\nDartmouth-Hitchcock Clinic, and so became a beneficiary and\n\nparticipant in an LTD benefits plan (the Plan), offered through\n\nHartford. The Plan provided for LTD benefits if a participant\n\nbecame disabled. There is no dispute that Fortier became disabled\n\nin May 2009.\n\n The Plan had limitations on the duration of LTD benefits,\n\nas relevant here, depending on the cause of the disability. One\n\nsuch duration limit was a twenty-four month limitation for\n\n\n\n\n 1 Under ERISA regulations, an \"adverse benefit\ndetermination\" is defined, in part, as:\n\n Any of the following: A denial, reduction, or\n termination of, or a failure to provide or\n make payment (in whole or in part) for, a\n benefit, including any such denial, reduction,\n termination, or failure to provide or make\n payment that is based on a determination of a\n participant's or beneficiary's eligibility to\n participate in a plan . . . .\n\n29 C.F.R. § 2560.503–1(m)(4)(i).\n\n - 3 -\n\fdisability caused by \"Mental Illness and Substance Abuse Benefits\"\n\n(the \"Mental Illness Limitation\"). The Mental Illness Limitation\n\nstated, in part:\n\n If You are Disabled because of:\n 1) Mental Illness that results from any\n cause;\n 2) any condition that may result from\n Mental Illness . . .\n [b]enefits will be payable:\n 1) for as long as you are confined in\n a hospital or other place licensed\n to provide medical care for the\n disabling condition; or\n 2) if not confined, or after you are\n discharged and still Disabled, for\n a total of 24 month(s) for all such\n disabilities during your lifetime.\n\nThe Plan defined \"Mental Illness\" as \"a mental disorder as listed\n\nin the current version of the Diagnostic and Statistical Manual of\n\nMental Disorders, published by the American Psychiatric\n\nAssociation. A Mental Illness may be caused by biological factors\n\nor result in physical symptoms or manifestations.\"\n\n Under the Plan, \"Mental Illness does not include the\n\nfollowing mental disorders outlined in the Diagnostic and\n\nStatistical Manual of Mental Disorders: . . . Delirium, Dementia,\n\nand Amnesic and Other Cognitive Disorders\" (emphasis added). It\n\nhas been Fortier's position that she suffers from a \"Cognitive\n\nDisorder\" such that the limitation period does not apply. To be\n\nclear, Fortier was eligible for and received benefits for at least\n\n\n\n\n - 4 -\n\ftwenty-four months regardless of whether the cause of her\n\ndisability was a \"Mental Illness\" or a \"Cognitive Disorder.\"\n\n In November 2009, Fortier filed a disability claim with\n\nHartford under the Plan, stating that she could not work because\n\nof a disability as of May 6, 2009.2 In a \"Claimant Interview\" with\n\nHartford, Fortier, according to Hartford's contemporaneous notes,\n\nexplained that she had \"got[ten] sick with some form of infection\"\n\nand subsequently had \"significant problems with memory.\" Fortier\n\nmaintained this was corroborated by \"neurophysch[ological]\n\neval[uation].\"\n\n As part of Hartford's review of Fortier's claim,\n\nHartford obtained medical records from several doctors who had\n\ntreated Fortier. Her psychiatrist, Dr. Paul Belliveau, stated in\n\nJune 2009 that Fortier's primary diagnoses were \"Major Depressive\n\nDisorder\" and \"Cognitive Disorder NOS [(Not Otherwise\n\nSpecified)],\" from \"resolving encephalopathy.\"3 Her neurologist\n\n\n\n\n 2 Fortier contracted a viral infection in April 2009 and\nreported subsequent symptoms including issues with memory and\ngeneral \"difficulty with various aspects of . . . cognitive\nfunction.\" On May 6, 2009, Fortier stopped working due to her\nmedical condition(s).\n 3 Fortier has referred to this condition as one caused by\n\"encephalitis,\" meaning inflammation of the brain generally caused\nby an infection (often viral). Merriam Webster Medical Dictionary,\nhttp://www.merriam-webster.com/medical (definition of\n\"encephalitis\"). Dr. Belliveau, however, stated that the cause\nwas \"encephalopathy,\" which is a broader term meaning a \"disease\n\n\n - 5 -\n\fat the time, Dr. Evan Murray, found that the results of\n\nelectroencephalogram (EEG) and brain magnetic resonance imaging\n\n(MRI) tests were normal and stated that \"[i]t is probable that the\n\nmajority of Dr. Fortier's current cognitive difficulties are due\n\nto a mood disorder.\" In Dr. Murray's view, then, \"both the EEG\n\nand brain MRI did not reveal evidence to support such an etiology\n\n[of encephalopathy].\"\n\n After reviewing medical records and having the \"Claimant\n\nInterview\" with Fortier, Hartford notified Fortier in a letter\n\ndated December 18, 2009, that it had approved her disability claim\n\nand would start paying the appropriate benefits effective November\n\n2, 2009. This letter stated that \"[o]n a periodic basis we will\n\nbe providing you with supplemental claim forms for the purpose of\n\nfurnishing us with continued proof of disability.\" When Fortier's\n\nclaim was granted, a Manager at Hartford stated in Hartford's\n\ninternal notes that \"further clarification should be requested to\n\ndetermine whether Dr. Fortier's primary disabling diagnosis is due\n\nto a physical or [a] mental/nervous condition.\" Hartford had\n\npreviously \"coded\" Fortier's disability claim as a physical\n\ndiagnosis.\n\n\n\n\nof the brain[,] especially: one involving alterations of brain\nstructure.\" Id. (definition of \"encephalopathy\").\n\n\n\n - 6 -\n\fB. 2011 Adverse Benefit Determination and 2012 Appeal\n\n In 2010 and 2011, Hartford periodically requested\n\nupdated medical information from Fortier. In response, Dr.\n\nBelliveau stated in January 2011, on an \"Attending Physician's\n\nStatement\" form, that Fortier's \"[c]ognitive dysfunction appears\n\nto be grad[ually] improving\" and the \"[p]rimary concern now is\n\nincreasing depression.\" In February 2010, an Examiner at Hartford\n\nspoke with Fortier on the phone and, according to Hartford's notes,\n\nFortier declined to undergo further testing, saying that further\n\nneuropsychological tests would not make sense. Later, Hartford\n\nrequested updated medical records from Dr. Belliveau on April 8,\n\n2011, which he provided promptly. Dr. Belliveau's notes indicated\n\nthat Fortier was \"reluctant to retake the neuropsychology testing\"\n\nin July 2010. After further requests for information and\n\ncommunication with Fortier, an Examiner at Hartford referred the\n\ncase for a medical review \"for clarification of [Fortier's]\n\ndisabling condition\" in June 2011. In July 2011, a nurse employed\n\nby Hartford determined that Fortier's disabling condition was a\n\nmental illness rather than a cognitive disorder or other physical\n\nailment. In August 2011, Hartford continued to write to Fortier's\n\ntreating physicians for further information. On September 13,\n\n2011, Hartford determined, in its view, that an \"in-depth . . .\n\nreview\" had \"found no support for a physical [disabling\n\ncondition].\"\n\n\n - 7 -\n\f In a letter dated September 13, 2011, Hartford notified\n\nFortier that her benefits would terminate on November 1, 2011,\n\nbecause the Plan's Mental Illness Limitation applied to her\n\ndisability. Hartford's letter stated that \"[i]f you do not agree\n\nwith our denial, in whole or in part, and you wish to appeal our\n\ndecision, you or your authorized representative must write to us\n\nwithin one hundred eighty (180) days from your receipt of this\n\nletter.\" About 174 days after receipt of this letter, Fortier's\n\nattorney requested a sixty-day extension to appeal the adverse\n\nbenefit determination. Hartford granted this request, and the\n\ntime to file an appeal was extended to May 11, 2012. Fortier,\n\nthrough her attorney, appealed. That appeal resulted in an\n\nextension of LTD benefits.\n\n In a letter to Fortier's attorney dated May 22, 2012,\n\nHartford stated that \"we have determined that Dr. Fortier is\n\nentitled to continued LTD benefits beyond November 1, 2011, subject\n\nto all policy provisions and guidelines,\" but did not specify the\n\nreason. This deficiency was cured within two weeks. In a June 4,\n\n2012, follow-up letter to Fortier's attorney, Hartford provided a\n\nreason for not cutting off and for continuing her LTD benefits:\n\n\"As Dr. Fortier was not notified until the letter dated 09/13/2011\n\nof the limitation for Mental Illness Benefits she is subject to\n\nthe limitation beginning 09/13/2011.\" That is, Hartford restarted\n\nthe twenty-four month period (for benefits paid due to a disability\n\n\n - 8 -\n\ffalling under the Mental Illness Limitation) anew from September\n\n13, 2011, because of the lack of prior notice to Fortier regarding\n\nthe Mental Illness Limitation. The letter explicitly stated that\n\n\"no benefits will be payable beyond 09/12/2013,\" except that\n\nbenefits would be payable if, and for as long as, \"[Fortier is]\n\nconfined in a hospital or other place licensed to provided medical\n\ncare for the disabling condition.\" This letter also sought further\n\ninformation from Fortier and Fortier's treating physicians.\n\n After the June 4, 2012, letter, Hartford repeatedly\n\nrequested more information about Fortier's disabling condition\n\nfrom Fortier, Fortier's attorney, and Fortier's healthcare\n\nproviders4 throughout the rest of 2012 and the first seven months\n\nof 2013. A June 6, 2012, letter to Fortier's attorney requested\n\n\"more information to evaluate [Fortier's] claim,\" including an\n\n\"Attending Physician's Statement of Continued Disability\" from\n\neach of Fortier's treating physicians. This letter requested this\n\ninformation by July 9, 2012, but the record does not show that\n\nHartford received any such information by this date. A July 13,\n\n2012, letter referred to the June 6 letter and made the same\n\nrequest for \"more information to evaluate [Fortier's] claim,\" this\n\ntime by August 5, 2012. Hartford received an updated Attending\n\n\n\n 4 All of the letters sent directly to healthcare providers\nattached a proper authorization form, signed by Fortier, for the\nrelease of medical records and personal information.\n\n\n\n - 9 -\n\fPhysician's Statement from Dr. Belliveau, dated August 16, 2012,\n\nbut the record does not show the receipt of an Attending\n\nPhysician's Statement from any other treating physician. An August\n\n7, 2012, letter from Hartford requested assistance from Fortier's\n\nattorney in obtaining records from two particular hospitals where\n\nFortier had received medical care. Nothing in the record suggests\n\nthat Hartford received the requested information from the two\n\nhospitals from Fortier's attorney.\n\n A February 15, 2013, Hartford letter to Fortier's\n\nattorney similarly requested assistance in obtaining information\n\nfrom a medical provider, including updated Attending Physician's\n\nStatements. Dr. Belliveau returned an Attending Physician's\n\nStatement form that stated \"See attached\" and was otherwise nearly\n\nblank. The attached documents were Dr. Belliveau's office notes\n\nregarding Fortier for May 2011 through November 2012. There were\n\nno records pertaining to January and February 2013. A February\n\n18, 2013, letter to Dr. Belliveau requested a completed Attending\n\nPhysician's Statement as well as \"any other information you feel\n\nis pertinent to the processing of [Fortier's] claim.\" A March 29,\n\n2013, letter to Fortier's attorney sought assistance in obtaining\n\na completed form from Dr. Belliveau, rather than office notes and\n\nthe \"incomplete\" form. There is no evidence that this information\n\nwas then provided.\n\n\n\n\n - 10 -\n\f Hartford sent a May 10, 2013, letter to Fortier's\n\nattorney, which stated that the letter was a \"final request for\n\nthe information [an Attending Physician's Statement] we need to\n\nfully evaluate Dr. Fortier's claim for LTD benefits\" (emphasis\n\nadded). It referred to several prior letters requesting\n\ninformation. According to Hartford's internal records, on July 8,\n\n2013, Dr. Belliveau sent a copy of the same incomplete form that\n\nhe had previously sent in February 2013.\n\n Even after this \"final request,\" Hartford sent several\n\nletters in July 2013 -- one directly to Fortier, two to Fortier's\n\nhealthcare providers -- seeking additional records or other\n\npertinent information.\n\nC. 2013 Adverse Benefit Determination\n\n In a letter to Fortier's attorney dated July 17, 2013,\n\nand apparently sent on July 23, 2013, (the \"July 17/23 letter\")\n\nHartford stated that it had \"completed [its] review of [Fortier's]\n\nclaim for benefits\" and it would stop paying LTD benefits to\n\nFortier on September 13, 2013, because it had determined on the\n\nrecord that the Mental Illness Limitation applied to Fortier. The\n\nletter stated: \"If you do not agree with our denial, in whole or\n\nin part, and you wish to appeal our decision, you or your\n\nauthorized representative must write to us within one hundred\n\neighty (180) days from the receipt of this letter\" and briefly\n\n\n\n\n - 11 -\n\fexplained the appeals procedure (such as the address to which\n\ndocumentation should be sent).\n\n A few weeks after this letter, on August 10, 2013,\n\nFortier's attorney wrote to Hartford. He acknowledged notice of\n\nan adverse benefit determination and stated he had reviewed the\n\n\"adverse-benefit-decision-letter\"; he requested Fortier's claim\n\nfile, among other things. Hartford complied with this request on\n\nAugust 19, 2013. Between August 2013 and March 2014, nothing in\n\nthe record indicates that Fortier's attorney retracted his\n\nstatement that Hartford had made an adverse benefit determination.\n\nD. March 2014 Appeal Letter\n\n Fortier did not appeal within 180 days of receipt of the\n\nnotice (the July 17/23 letter). Fortier, through her attorney,\n\nsent a letter dated March 7, 2014, purporting to appeal. This was\n\nabout two months later than 180 days from the receipt of the July\n\n17/23 letter. Hartford responded in a letter dated March 26, 2014,\n\nstating that it would not consider Fortier's appeal because it was\n\nuntimely.5\n\n\n\n\n 5 That same day, the Harford Appeal Specialist who signed\nthe March 26 letter spoke with Fortier's attorney on the phone.\nHartford's call notes from this call state that Fortier's attorney\n\"disagree[d] with the decision because the claimant's last payment\nwas in September,\" but do not show that he offered any other excuse\nfor filing later than 180 days after receiving the July 17/23\nletter.\n\n\n - 12 -\n\fE. Federal Lawsuit\n\n About two years after Fortier's attempted administrative\n\nappeal in March 2014, she filed a two-count complaint in federal\n\ndistrict court under ERISA Section 502(a), 29 U.S.C. § 1132(a) on\n\nJuly 15, 2016. Count One sought reinstatement of LTD benefits,\n\nwhich had been terminated in accordance with the July 17/23 letter.\n\nCount Two sought attorneys' fees and costs under 29 U.S.C.\n\n§ 1132(g)(1). On December 14, 2016, Fortier filed an amended\n\ncomplaint, adding a count challenging the legality of the Mental\n\nIllness Limitation under the Americans with Disabilities Act\n\n(\"ADA\").\n\n On January 27, 2017, Hartford moved to dismiss (styled\n\nas a partial motion to dismiss), arguing that Fortier had not\n\nexhausted her administrative remedies and had not set forth a claim\n\nunder the ADA; Fortier opposed this motion. On September 11, 2017,\n\nthe District Court dismissed the ADA claim but not Count One\n\nregarding the denial of LTD benefits. The parties each then filed\n\nmotions for judgment on the administrative record.\n\n The district court issued a Memorandum and Opinion and\n\nentered judgment in Hartford's favor. Fortier, 2018 WL 3542863.\n\nThe district court held that Fortier had not timely appealed, and\n\nso had not exhausted her administrative remedies. Id. at *11.\n\nThe district court rejected Fortier's equitable arguments that her\n\nappeal was timely under either the substantial compliance doctrine\n\n\n - 13 -\n\for New Hampshire's notice-prejudice rule. Id. at *8-*11. Fortier\n\nappealed from the judgment. Her appeal does not contest the\n\ndismissal of the ADA claim.\n\n II.\n\n We review the district court's grant of judgment on the\n\nadministrative record de novo. Glista v. Unum Life Ins. Co. of\n\nAm., 378 F.3d 113, 125 (1st Cir. 2004). We need not consider the\n\nappropriate standard of review for \"reviewing determinations made\n\nregarding benefits claims,\" Rodríguez–López v. Triple-S Vida,\n\nInc., 850 F.3d 14, 20 (1st Cir. 2017), because our review examines\n\nwhether Fortier exhausted her administrative remedies and not the\n\nmerits of Hartford's adverse benefit determination.\n\n In order to bring suit under a benefits plan subject to\n\nERISA, a beneficiary must exhaust the plan's administrative\n\nremedies. Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d\n\n49, 51-52 (1st Cir. 2014); see Heimeshoff v. Hartford Life &\n\nAccident Ins. Co., 571 U.S. 99, 105 (2013) (noting that \"courts of\n\nappeals have uniformly required that participants exhaust internal\n\nreview before bringing a claim [under ERISA] for judicial review\").\n\n We first address Fortier's arguments about the proper\n\nstarting date for the 180-day time limit for appeals and about\n\nHartford's compliance with the Plan, before considering Fortier's\n\nequitable arguments concerning the substantial compliance doctrine\n\nand New Hampshire's common law notice-prejudice rule.\n\n\n - 14 -\n\fA. ERISA's Requirements and the 180-Day Time Limit\n\n Fortier argues that an ERISA regulation defining an\n\n\"adverse benefit determination\" requires that the 180-day time\n\nlimit start at the date of termination of benefits and not from\n\nthe date of notice. This argument fails.\n\n Fortier's reading of ERISA regulations is plainly wrong.\n\nThe relevant ERISA regulation does not define an \"adverse benefit\n\ndetermination\" as a \"contemporary cessation of benefits,\" as\n\nFortier contends.6 The ERISA regulation concerning notice of an\n\nadverse benefit determination states in part that a complying group\n\nhealth plan7 must \"[p]rovide claimants at least 180 days following\n\nreceipt of a notification of an adverse benefit determination\n\nwithin which to appeal the determination.\" 29 C.F.R. § 2560.503-\n\n1(h)(3)(i) (emphasis added). Notice is the key event. The ERISA\n\n\n\n\n 6 In relevant part, the regulation states that \"[t]he term\n'adverse benefit determination' means: (i) Any of the following:\na denial, reduction, or termination of, or a failure to provide or\nmake payment (in whole or in part) for, a benefit.\" 29 C.F.R.\n§ 2560.503–1(m)(4)(i). Denial of benefits, termination of\nbenefits, and reduction of benefits are listed separately by this\ndefinition, and so it would not make sense for the term \"denial\"\nto mean only the \"termination\" of benefits.\n 7 The parties agree that the Plan was a group health plan.\nUnder ERISA, \"[t]he term 'group health plan' means an employee\nwelfare benefit plan providing medical care . . . to participants\nor beneficiaries directly or through insurance, reimbursement, or\notherwise.\" 29 U.S.C. § 1167(1).\n\n\n\n - 15 -\n\fregulations do not require that the time limit for an\n\nadministrative appeal run from the date of termination of benefits.\n\nB. Hartford's Conduct\n\n Fortier also argues that: Hartford's letters from June\n\n4, 2012, and July 17/23, 2013, were inconsistent; and a portion of\n\nHartford's \"Product Manual\" (in essence, internal guidelines)\n\nshows that Hartford breached its own internal guidelines.8 We\n\nassume for the sake of argument that Hartford's conduct is relevant\n\nhere.\n\n These arguments fail, as Hartford's conduct was\n\nconsistent with ERISA and relevant regulations. The Plan (which\n\nis the governing document) plainly laid out the 180-day notice\n\nrule. Specifically, the Plan's Certificate of Insurance, which\n\nwas expressly incorporated as part of the Plan terms, included --\n\nunder the heading \"Claim Denial: What recourse do I have if my\n\nclaim is denied?\" -- a clear statement that a claimant \"must\n\nrequest a review upon written application within . . . 180 days of\n\nreceipt of claim denial.\" The Certificate of Insurance also\n\n\n 8 Fortier makes a passing reference in the \"Statement of\nthe Relevant Facts\" section of her brief to language in the\nCertificate of Insurance requiring that, \"On any wholly or\npartially denied claim, you or your representative must appeal\nonce to [Hartford] for a full and fair review.\" However, Fortier's\npoint is not clear; if the implicit argument is that the latter\nappeal filed in March 2014 was unnecessary to exhaust Fortier's\nadministrative remedies because she had already appealed in 2012\non the same claim, it is waived for lack of development. See\nUnited States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\n\n\n - 16 -\n\fstated, under the heading \"Appealing Denials of Claims for\n\nBenefits,\" that:\n\n On any wholly or partially denied claim, you\n or your representative must appeal once to\n [Hartford] for a full and fair review. You\n must complete this claim appeal process before\n you file an action in court. Your appeal\n request must be in writing and be received by\n [Hartford] no later than the expiration of 180\n days from the date you received your claim\n denial.\n\nThis document refutes Fortier's argument. Further, the 180-day\n\ntime limit complies with the relevant ERISA regulation. See 29\n\nC.F.R. § 2560.503-1(h)(3)(i).\n\n The July 17/23 letter from Hartford to Fortier's\n\nattorney clearly stated, \"If you do not agree with our denial, in\n\nwhole or in part, and you wish to appeal our decision, you or your\n\nauthorized representative must write to us within one hundred\n\neighty (180) days from the receipt of this letter.\" Fortier\n\nacknowledges that this letter gave notice of her appeal rights.\n\n Fortier contrasts the June 4, 2012, and the July 17/23,\n\n2013, letters from Hartford, arguing that \"[o]ne cannot be an\n\n'adverse benefit determination' and not the other.\" This argument\n\nis simply wrong and mischaracterizes the letters. The June 4,\n\n2012, letter gave reasons for the extension of benefits discussed\n\nin the May 22, 2012, letter, but also warned of the new termination\n\ndate of those benefits. The July 17/23 letter, sent more than a\n\nyear later, announced the final adverse benefit determination and\n\n\n - 17 -\n\fgave notice of the right to appeal within 180 days of receipt of\n\nthe letter.\n\n Fortier also argues that a page from Hartford's Product\n\nManual demonstrates that \"Hartford believes a letter should be\n\nsent advising of presuit appeals rights when the claim is paid and\n\nclosed, not two months before.\" The language Fortier focuses on\n\nis a portion of an instruction to Hartford employees that \"appeal\n\nlanguage should again be utilized once the limited benefit duration\n\nhas been paid and the claim terminated.\" This page is not relevant\n\nhere, and likely not admissible.9\n\n\n\n\n 9 This page from the Product Manual is not part of the\nadministrative record in this case and was obtained by Fortier's\nattorney through discovery in a different and unrelated case in\n2009 (which he acknowledges). \"[S]ome very good reason is needed\nto overcome the presumption that the record on review is limited\nto the record before the administrator.\" Morales-Alejandro v.\nMed. Card Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007) (quoting\nListon v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st\nCir. 2003)).\n In Glista, this court allowed the consideration of two\ninternal insurance company documents; such internal documents \"are\nmost likely to be relevant where they have been authenticated,\nhave been generated or adopted by the plan administrator, concern\nthe policy in question, are timely to the issue in the case, are\nconsistently used, and were known or should have been known by\nthose who made the decision.\" 378 F.3d at 123.\n Here, we do not know whether the Product Manual reflects\nHartford's understanding of the Plan or its appeals procedures.\nFurther, there is no evidence in the record showing that Hartford\nused this Product Manual, or that it was or should have been known\nto the relevant Hartford employees. Taken together, these facts\nmake the Product Manual irrelevant here.\n\n\n\n - 18 -\n\f In summary, Hartford properly followed the terms of the\n\nPlan, which met the ERISA requirements. Hartford's July 17/23\n\nletter was an adverse benefit determination and provided notice of\n\nthe right to appeal. The 180-day time limit began at the receipt\n\nof this letter, and so Fortier's attempted appeal in March 2014\n\nwas untimely. In the ERISA context, \"[h]aphazard waiver of time\n\nlimits would increase the probability of inconsistent results.\"\n\nTerry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998).\n\nC. Inapplicability of the Doctrine of Substantial Compliance\n\n The judicially-created doctrine of \"substantial\n\ncompliance,\" an ERISA doctrine, has been applied to excuse an\n\ninsurer's failure to comply precisely with ERISA's notice\n\nrequirements, so long as the insured person was \"supplied with a\n\nstatement of reasons that, under the circumstances of the case,\n\npermitted a sufficiently clear understanding of the\n\nadministrator's position to permit effective review.\" Niebauer v.\n\nCrane & Co., 783 F.3d 914, 927 (1st Cir. 2015) (quoting Terry, 145\n\nF.3d at 39); see Santana-Díaz v. Metro. Life Ins. Co., 816 F.3d\n\n172, 178 (1st Cir. 2016).10 In fact, the doctrine assists with the\n\n\n 10 Some other circuits have applied a broader version of\nthe doctrine to other situations under ERISA, such as an insurer's\nsubstantial compliance with a change of beneficiary. See, e.g.,\nDavis v. Combes, 294 F.3d 931, 941-42 (7th Cir. 2002) (change of\nbeneficiary); but see Hall v. Metro. Life Ins. Co., 750 F.3d 995,\n1000-01 (8th Cir. 2014) (in a different context, rejecting the\ndoctrine in a change of beneficiary situation). But no circuit\nhas applied the doctrine to excuse a late administrative appeal by\n\n\n - 19 -\n\fprompt review of denial of benefits, and Fortier is arguing for\n\ndelay, not prompt review.\n\n Fortier makes a fairness argument: since Hartford has at\n\nleast once had the doctrine applied in its favor, Fortier should\n\nreceive the benefit of the doctrine. See, e.g., Topalian v.\n\nHartford Life Ins. Co., 945 F. Supp. 2d 294, 339 (E.D.N.Y. 2013)\n\n(finding that \"Hartford was in substantial compliance with the\n\n[Department of Labor]'s regulatory deadlines\" despite Hartford\n\nmaking a late benefit determination). Neither the caselaw nor 29\n\nC.F.R. § 2560.503-1(b)(5)11 supports Fortier's argument.12\n\n We agree generally with Edwards, where the Seventh\n\nCircuit held that the substantial compliance doctrine did not apply\n\n\n\n\na claimant, which is what Fortier asks that we do, and some have\nrejected the argument. See, e.g., Edwards, 639 F.3d at 362-63.\n 11 This regulation addresses the \"[o]bligation to establish\nand maintain reasonable claims procedures.\"\n 12 We do not specifically address all of Fortier's broad\nstatements concerning duties of loyalty, good faith, and fair\ndealing. These assertions rest on the assumption that a \"desire\nto save money had to be the overriding force in Hartford's biased\nclaim adjudication\" and the related assumption that \"Hartford's\nimproper motive caused it to ultimately refuse to review Dr.\nFortier's . . . appeal.\"\n These assumptions are not adequately supported in\nFortier's briefs, nor in the record. Fortier does not point to\nanything in the record that clearly suggests, let alone proves,\nsuch an improper motive. Her primary support for such a motive is\nthe relative speed (about two weeks) in which Hartford granted\nFortier's May 2012 appeal, but this does not itself demonstrate a\n\"biased claim adjudication.\"\n\n\n - 20 -\n\fto a claimant's late appeal from a denial of benefits. The Seventh\n\nCircuit reasoned that:\n\n [I]t seems consistent neither with the\n policies underlying the requirement of\n exhaustion of administrative remedies in ERISA\n cases nor with judicial economy to import into\n the exhaustion requirement the substantial\n compliance doctrine. To so hold would render\n it effectively impossible for plan\n administrators to fix and enforce\n administrative deadlines while involving\n courts incessantly in detailed, case-by-case\n determinations as to whether a given\n claimant's failure to bring a timely appeal\n from a denial of benefits should be excused or\n not.\n\nEdwards, 639 F.3d at 362.13 As in Edwards, see id. at 359, the\n\nPlan here contained a clear deadline for appeals of adverse benefit\n\ndeterminations. In coming to its conclusion, the Seventh Circuit\n\ndetermined that, though the plan administrator had discretion to\n\nconsider an untimely appeal, the claimant \"ha[d] never offered an\n\nexplanation for the untimeliness of her appeal that would warrant\n\nsuch an exercise of discretion in her favor [by the plan\n\nadministrator].\" Id. at 362. The same is true here. We find\n\nconvincing the concerns about the harms that would result from\n\napplying the substantial compliance doctrine to excuse a\n\nclaimant's failure to meet the exhaustion requirement.14\n\n\n\n\n 13 We acknowledge that there may well be ERISA cases where\ncertain exceptions and doctrines can dictate a different outcome.\n\n 14 Fortier has not made an equitable tolling argument.\n\n\n - 21 -\n\f Further, the Supreme Court has discussed ERISA's\n\n\"'careful balancing' between ensuring fair and prompt enforcement\n\nof rights under a plan and the encouragement of the creation of\n\nsuch plans.\" Aetna Health Inc. v. Davila, 542 U.S. 200, 215 (2004)\n\n(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987));\n\nsee also Heimeshoff, 571 U.S. at 108 (noting that a \"focus on the\n\nwritten terms of the plan is the linchpin of\" the ERISA system).\n\nAdoption of Fortier's argument would risk upsetting this balance\n\nand reducing the incentive for employers to set up benefit plans.\n\n Next, Fortier's reliance on 29 C.F.R. § 2560.503-1(b)(5)\n\nis fundamentally misconceived. Nothing in the regulation would be\n\n\"undermined by Hartford when it applies deadlines strictly against\n\nplan participants.\" In fact, \"ERISA's exhaustion requirement\n\nserves different purposes than the denial of claims process,\"\n\nFortier, 2018 WL 3542863, at *10, and so all aspects of such\n\nprocesses need not be the same.\n\n The substantial compliance doctrine does not excuse\n\nFortier's untimely ERISA administrative appeal.15\n\n\n\n\n 15 Fortier makes no argument that we should excuse her\nfailure to exhaust the available administrative remedies. See,\ne.g., Medina v. Metro. Life Ins. Co., 588 F.3d 41, 47 (1st Cir.\n2009); Madera v. Marsh USA, Inc., 426 F.3d 56, 62-63 (1st Cir.\n2005); Turner v. Fallono Cmty. Health Plan, Inc., 127 F.3d 196,\n200 (1st Cir. 1997); Drinkwater v. Metro. Life Ins. Co., 846 F.2d\n821, 826 (1st Cir. 1988).\n\n\n - 22 -\n\fD. Inapplicability of New Hampshire's Notice-Prejudice Rule\n\n Fortier argues next that New Hampshire's common law\n\nnotice-prejudice rule (where an insurer must show prejudice in\n\norder to deny certain limited types of untimely insurance claims)\n\nshould apply to her situation. Our own case law leads us to reject\n\nthe argument, as do decisions of our sister circuits. See Edwards,\n\n639 F.3d at 363; Chang v. Liberty Life Assurance Co., 247 F. App'x\n\n875, 878 (9th Cir. 2007).\n\n This court, discussing ERISA appeals procedures and the\n\nexhaustion requirement, has stated that:\n\n Congress' apparent intent in mandating these\n internal claims procedures was to minimize the\n number of frivolous ERISA lawsuits; promote\n the consistent treatment of benefit claims;\n provide a nonadversarial dispute resolution\n process; and decrease the cost and time of\n claims settlement. It would be anomalous if\n the same reasons which led Congress to require\n plans to provide remedies for ERISA claimants\n did not lead courts to see that those remedies\n are regularly utilized.\n\nTerry, 145 F.3d at 40 (quoting Makar v. Health Care Corp. of the\n\nMid-Atlantic (CareFirst), 872 F.2d 80, 83 (4th Cir. 1989)); accord\n\nSchorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734, 739\n\n(7th Cir. 2012); Kennedy v. Empire Blue Cross & Blue Shield, 989\n\nF.2d 588, 594 (2d Cir. 1993). This court stated further in Terry\n\nthat \"[i]t would hardly make sense to permit the filing of [a late]\n\nappeal . . . in light of the internal claims procedures' aims of\n\nconsistency and economy.\" Terry, 145 F.3d at 40. Adopting\n\n\n - 23 -\n\fFortier's argument would reduce consistency in determinations and\n\nnational consistency. Further, \"permitting appeals well after the\n\ntime for them has passed can only increase the cost and time of\n\nthe settlement process.\" Id. The exhaustion requirement -- and\n\nseveral of its underlying policy goals -- would be undercut by an\n\nextension of a state law notice-prejudice rule to ERISA appeals.\n\nSee Stacy v. Appalachian Regional Healthcare, Inc., 259 F. Supp.\n\n3d 644, 654 (E.D. Ky. 2017).\n\n The Seventh and Ninth Circuits have agreed that state\n\ncommon law notice-prejudice rules do not apply to ERISA appeals.\n\nSee Edwards, 639 F.3d at 363; Chang, 247 F. App'x at 878. Indeed,\n\nno federal court has applied any state's common law notice-\n\nprejudice rule to excuse a late administrative ERISA appeal.16\n\n\n\n\n 16 The District Court for the Eastern District of\nPennsylvania suggested in dictum that an untimely ERISA appeal\nwould have been subject to the notice-prejudice rule. Foley v.\nInt'l Bhd. of Elec. Workers Local Union 98 Pension Fund, 91 F.\nSupp. 2d 797, 803 n.6 (E.D. Pa. 2000) (\"Even if [the plaintiff's]\nappeal were untimely, defendants would not prevail, because they\nhave not shown that they were prejudiced by the untimely\nsubmission, as they are required to do under the Supreme Court's\nrecent decision in UNUM.\")\n This footnote appears to rest on a misunderstanding of\nUNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999), though, and is\nnot a holding. UNUM focused on California's relatively broad\nnotice-prejudice rule and on California's specific policy\ninterests underlying this rule; it still did not extend\nCalifornia's notice-prejudice rule to an ERISA appeal. See id. at\n372-73. Further, it made no express holding about other states'\nnotice-prejudice rules, see generally id., and simply noted that\n\"[d]ecisions of courts in [some] other States . . . indicate that\nthe notice-prejudice rule addresses policy concerns specific to\n\n\n - 24 -\n\fSee, e.g., Chang, 247 F. App'x at 878 (\"[T]o extend the notice-\n\nprejudice rule to ERISA appeals would extend the rule substantially\n\nbeyond its previous uses.\").\n\n We add that New Hampshire has never suggested that its\n\nnotice-prejudice rule applies to ERISA appeals, and note that the\n\nstate has only applied the doctrine where the facts involve an\n\ninitial claim made in an occurrence-based insurance policy.17 See,\n\ne.g., Bianco Prof'l Ass'n v. Home Ins. Co., 740 A.2d 1051, 1057\n\n(N.H. 1999). There is no reason to think that the New Hampshire\n\ncourts would countenance Fortier's attempted use of the notice-\n\nprejudice rule.\n\n III.\n\n For the stated reasons, the decision of the district\n\ncourt is affirmed. Costs are awarded to Hartford.\n\n\n\n\ninsurance,\" id. at 372. Indeed, the court acknowledged \"States'\nvarying insurance regulations.\" Id. at 376 n.6.\n 17 Fortier also cites a New Hampshire law in support of her\nargument that an initial claim should be treated the same as an\nappeal under New Hampshire's notice-prejudice rule. This law,\ntitled \"Unfair Methods, Acts, and Practices Defined,\" bars\ninsurers from \"[n]ot attempting in good faith to effectuate prompt,\nfair and equitable settlements or compromises of claims in which\nliability has become reasonably clear.\" N.H. Rev. Stat. Ann.\n§ 417:4(XV)(a)(4). This provision is inapposite: Liability was\nnot reasonably clear, and the record does not demonstrate bad faith\non the part of Hartford.\n\n\n - 25 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Theresa FORTIER, Plaintiff, Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; Dartmouth Hitchcock Clinic Company Long Term Disability Plan, Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1752\\n\\n THERESA FORTIER,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; DARTMOUTH\\n HITCHCOCK CLINIC COMPANY LONG TERM DISABILITY PLAN,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Landya B. McCafferty, U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Thompson, and Barron,\\n Circuit Judges.\\n\\n\\n Jonathan M. Feigenbaum for Theresa Fortier.\\n Byrne J. Decker, with whom Scott K. Pomeroy and Ogletree,\\nDeakins, Nash, Smoak & Stewart, P.C. were on brief, for Hartford\\nLife and Accident Insurance Company and Dartmouth Hitchcock Clinic\\nCompany Long Term Disability Plan.\\n\\n\\n February 20, 2019\\n\\f LYNCH, Circuit Judge. A disability insurer, Hartford\\n\\nLife and Accident Insurance Company (\\\"Hartford\\\"), gave notice to\\n\\nTheresa Fortier that the long-term disability (\\\"LTD\\\") benefits it\\n\\nhad provided her under the Dartmouth Hitchcock Clinic Company Long\\n\\nTerm Disability Plan (the \\\"Plan\\\") would expire because she had not\\n\\nshown she was eligible for a continuation of those benefits. The\\n\\nnotice informed her she must file any appeal within 180 days of\\n\\nreceipt of the notice. She did not do so, filing her appeal about\\n\\ntwo months after this deadline.\\n\\n In this Employee Retirement Income Security Act of 1974\\n\\n(\\\"ERISA\\\") suit, Fortier first argues that her appeal was timely\\n\\nunder the Plan. She then argues that even if untimely, that\\n\\nuntimeliness should be excused under either of two doctrines: the\\n\\nERISA substantial compliance doctrine or a state law notice-\\n\\nprejudice rule. The district court rejected these arguments and\\n\\ngranted a motion for judgment on the administrative record for\\n\\nHartford and the Plan. Fortier v. Hartford Life & Accident Ins.\\n\\nCo., No. 16-CV-322-LM, 2018 WL 3542863, at *12 (D.N.H. July 23,\\n\\n2018). We also reject all these arguments and affirm. In\\n\\nrejecting the equitable arguments, our result is similar to that\\n\\nreached by the Seventh Circuit in Edwards v. Briggs & Stratton\\n\\nRet. Plan, 639 F.3d 355 (7th Cir. 2011).\\n\\n\\n\\n\\n - 2 -\\n\\f I.\\n\\n We describe the material undisputed facts. Because this\\n\\ncourt is not reviewing the merits of Hartford's 2013 \\\"adverse\\n\\nbenefit determination\\\"1 on Fortier's claim, facts concerning\\n\\nFortier's medical condition(s) and medical treatment are described\\n\\nonly where relevant.\\n\\nA. Illness and Initial LTD Claim\\n\\n In January 2008, Fortier was employed as a doctor by the\\n\\nDartmouth-Hitchcock Clinic, and so became a beneficiary and\\n\\nparticipant in an LTD benefits plan (the Plan), offered through\\n\\nHartford. The Plan provided for LTD benefits if a participant\\n\\nbecame disabled. There is no dispute that Fortier became disabled\\n\\nin May 2009.\\n\\n The Plan had limitations on the duration of LTD benefits,\\n\\nas relevant here, depending on the cause of the disability. One\\n\\nsuch duration limit was a twenty-four month limitation for\\n\\n\\n\\n\\n 1 Under ERISA regulations, an \\\"adverse benefit\\ndetermination\\\" is defined, in part, as:\\n\\n Any of the following: A denial, reduction, or\\n termination of, or a failure to provide or\\n make payment (in whole or in part) for, a\\n benefit, including any such denial, reduction,\\n termination, or failure to provide or make\\n payment that is based on a determination of a\\n participant's or beneficiary's eligibility to\\n participate in a plan . . . .\\n\\n29 C.F.R. § 2560.503–1(m)(4)(i).\\n\\n - 3 -\\n\\fdisability caused by \\\"Mental Illness and Substance Abuse Benefits\\\"\\n\\n(the \\\"Mental Illness Limitation\\\"). The Mental Illness Limitation\\n\\nstated, in part:\\n\\n If You are Disabled because of:\\n 1) Mental Illness that results from any\\n cause;\\n 2) any condition that may result from\\n Mental Illness . . .\\n [b]enefits will be payable:\\n 1) for as long as you are confined in\\n a hospital or other place licensed\\n to provide medical care for the\\n disabling condition; or\\n 2) if not confined, or after you are\\n discharged and still Disabled, for\\n a total of 24 month(s) for all such\\n disabilities during your lifetime.\\n\\nThe Plan defined \\\"Mental Illness\\\" as \\\"a mental disorder as listed\\n\\nin the current version of the Diagnostic and Statistical Manual of\\n\\nMental Disorders, published by the American Psychiatric\\n\\nAssociation. A Mental Illness may be caused by biological factors\\n\\nor result in physical symptoms or manifestations.\\\"\\n\\n Under the Plan, \\\"Mental Illness does not include the\\n\\nfollowing mental disorders outlined in the Diagnostic and\\n\\nStatistical Manual of Mental Disorders: . . . Delirium, Dementia,\\n\\nand Amnesic and Other Cognitive Disorders\\\" (emphasis added). It\\n\\nhas been Fortier's position that she suffers from a \\\"Cognitive\\n\\nDisorder\\\" such that the limitation period does not apply. To be\\n\\nclear, Fortier was eligible for and received benefits for at least\\n\\n\\n\\n\\n - 4 -\\n\\ftwenty-four months regardless of whether the cause of her\\n\\ndisability was a \\\"Mental Illness\\\" or a \\\"Cognitive Disorder.\\\"\\n\\n In November 2009, Fortier filed a disability claim with\\n\\nHartford under the Plan, stating that she could not work because\\n\\nof a disability as of May 6, 2009.2 In a \\\"Claimant Interview\\\" with\\n\\nHartford, Fortier, according to Hartford's contemporaneous notes,\\n\\nexplained that she had \\\"got[ten] sick with some form of infection\\\"\\n\\nand subsequently had \\\"significant problems with memory.\\\" Fortier\\n\\nmaintained this was corroborated by \\\"neurophysch[ological]\\n\\neval[uation].\\\"\\n\\n As part of Hartford's review of Fortier's claim,\\n\\nHartford obtained medical records from several doctors who had\\n\\ntreated Fortier. Her psychiatrist, Dr. Paul Belliveau, stated in\\n\\nJune 2009 that Fortier's primary diagnoses were \\\"Major Depressive\\n\\nDisorder\\\" and \\\"Cognitive Disorder NOS [(Not Otherwise\\n\\nSpecified)],\\\" from \\\"resolving encephalopathy.\\\"3 Her neurologist\\n\\n\\n\\n\\n 2 Fortier contracted a viral infection in April 2009 and\\nreported subsequent symptoms including issues with memory and\\ngeneral \\\"difficulty with various aspects of . . . cognitive\\nfunction.\\\" On May 6, 2009, Fortier stopped working due to her\\nmedical condition(s).\\n 3 Fortier has referred to this condition as one caused by\\n\\\"encephalitis,\\\" meaning inflammation of the brain generally caused\\nby an infection (often viral). Merriam Webster Medical Dictionary,\\nhttp://www.merriam-webster.com/medical (definition of\\n\\\"encephalitis\\\"). Dr. Belliveau, however, stated that the cause\\nwas \\\"encephalopathy,\\\" which is a broader term meaning a \\\"disease\\n\\n\\n - 5 -\\n\\fat the time, Dr. Evan Murray, found that the results of\\n\\nelectroencephalogram (EEG) and brain magnetic resonance imaging\\n\\n(MRI) tests were normal and stated that \\\"[i]t is probable that the\\n\\nmajority of Dr. Fortier's current cognitive difficulties are due\\n\\nto a mood disorder.\\\" In Dr. Murray's view, then, \\\"both the EEG\\n\\nand brain MRI did not reveal evidence to support such an etiology\\n\\n[of encephalopathy].\\\"\\n\\n After reviewing medical records and having the \\\"Claimant\\n\\nInterview\\\" with Fortier, Hartford notified Fortier in a letter\\n\\ndated December 18, 2009, that it had approved her disability claim\\n\\nand would start paying the appropriate benefits effective November\\n\\n2, 2009. This letter stated that \\\"[o]n a periodic basis we will\\n\\nbe providing you with supplemental claim forms for the purpose of\\n\\nfurnishing us with continued proof of disability.\\\" When Fortier's\\n\\nclaim was granted, a Manager at Hartford stated in Hartford's\\n\\ninternal notes that \\\"further clarification should be requested to\\n\\ndetermine whether Dr. Fortier's primary disabling diagnosis is due\\n\\nto a physical or [a] mental/nervous condition.\\\" Hartford had\\n\\npreviously \\\"coded\\\" Fortier's disability claim as a physical\\n\\ndiagnosis.\\n\\n\\n\\n\\nof the brain[,] especially: one involving alterations of brain\\nstructure.\\\" Id. (definition of \\\"encephalopathy\\\").\\n\\n\\n\\n - 6 -\\n\\fB. 2011 Adverse Benefit Determination and 2012 Appeal\\n\\n In 2010 and 2011, Hartford periodically requested\\n\\nupdated medical information from Fortier. In response, Dr.\\n\\nBelliveau stated in January 2011, on an \\\"Attending Physician's\\n\\nStatement\\\" form, that Fortier's \\\"[c]ognitive dysfunction appears\\n\\nto be grad[ually] improving\\\" and the \\\"[p]rimary concern now is\\n\\nincreasing depression.\\\" In February 2010, an Examiner at Hartford\\n\\nspoke with Fortier on the phone and, according to Hartford's notes,\\n\\nFortier declined to undergo further testing, saying that further\\n\\nneuropsychological tests would not make sense. Later, Hartford\\n\\nrequested updated medical records from Dr. Belliveau on April 8,\\n\\n2011, which he provided promptly. Dr. Belliveau's notes indicated\\n\\nthat Fortier was \\\"reluctant to retake the neuropsychology testing\\\"\\n\\nin July 2010. After further requests for information and\\n\\ncommunication with Fortier, an Examiner at Hartford referred the\\n\\ncase for a medical review \\\"for clarification of [Fortier's]\\n\\ndisabling condition\\\" in June 2011. In July 2011, a nurse employed\\n\\nby Hartford determined that Fortier's disabling condition was a\\n\\nmental illness rather than a cognitive disorder or other physical\\n\\nailment. In August 2011, Hartford continued to write to Fortier's\\n\\ntreating physicians for further information. On September 13,\\n\\n2011, Hartford determined, in its view, that an \\\"in-depth . . .\\n\\nreview\\\" had \\\"found no support for a physical [disabling\\n\\ncondition].\\\"\\n\\n\\n - 7 -\\n\\f In a letter dated September 13, 2011, Hartford notified\\n\\nFortier that her benefits would terminate on November 1, 2011,\\n\\nbecause the Plan's Mental Illness Limitation applied to her\\n\\ndisability. Hartford's letter stated that \\\"[i]f you do not agree\\n\\nwith our denial, in whole or in part, and you wish to appeal our\\n\\ndecision, you or your authorized representative must write to us\\n\\nwithin one hundred eighty (180) days from your receipt of this\\n\\nletter.\\\" About 174 days after receipt of this letter, Fortier's\\n\\nattorney requested a sixty-day extension to appeal the adverse\\n\\nbenefit determination. Hartford granted this request, and the\\n\\ntime to file an appeal was extended to May 11, 2012. Fortier,\\n\\nthrough her attorney, appealed. That appeal resulted in an\\n\\nextension of LTD benefits.\\n\\n In a letter to Fortier's attorney dated May 22, 2012,\\n\\nHartford stated that \\\"we have determined that Dr. Fortier is\\n\\nentitled to continued LTD benefits beyond November 1, 2011, subject\\n\\nto all policy provisions and guidelines,\\\" but did not specify the\\n\\nreason. This deficiency was cured within two weeks. In a June 4,\\n\\n2012, follow-up letter to Fortier's attorney, Hartford provided a\\n\\nreason for not cutting off and for continuing her LTD benefits:\\n\\n\\\"As Dr. Fortier was not notified until the letter dated 09/13/2011\\n\\nof the limitation for Mental Illness Benefits she is subject to\\n\\nthe limitation beginning 09/13/2011.\\\" That is, Hartford restarted\\n\\nthe twenty-four month period (for benefits paid due to a disability\\n\\n\\n - 8 -\\n\\ffalling under the Mental Illness Limitation) anew from September\\n\\n13, 2011, because of the lack of prior notice to Fortier regarding\\n\\nthe Mental Illness Limitation. The letter explicitly stated that\\n\\n\\\"no benefits will be payable beyond 09/12/2013,\\\" except that\\n\\nbenefits would be payable if, and for as long as, \\\"[Fortier is]\\n\\nconfined in a hospital or other place licensed to provided medical\\n\\ncare for the disabling condition.\\\" This letter also sought further\\n\\ninformation from Fortier and Fortier's treating physicians.\\n\\n After the June 4, 2012, letter, Hartford repeatedly\\n\\nrequested more information about Fortier's disabling condition\\n\\nfrom Fortier, Fortier's attorney, and Fortier's healthcare\\n\\nproviders4 throughout the rest of 2012 and the first seven months\\n\\nof 2013. A June 6, 2012, letter to Fortier's attorney requested\\n\\n\\\"more information to evaluate [Fortier's] claim,\\\" including an\\n\\n\\\"Attending Physician's Statement of Continued Disability\\\" from\\n\\neach of Fortier's treating physicians. This letter requested this\\n\\ninformation by July 9, 2012, but the record does not show that\\n\\nHartford received any such information by this date. A July 13,\\n\\n2012, letter referred to the June 6 letter and made the same\\n\\nrequest for \\\"more information to evaluate [Fortier's] claim,\\\" this\\n\\ntime by August 5, 2012. Hartford received an updated Attending\\n\\n\\n\\n 4 All of the letters sent directly to healthcare providers\\nattached a proper authorization form, signed by Fortier, for the\\nrelease of medical records and personal information.\\n\\n\\n\\n - 9 -\\n\\fPhysician's Statement from Dr. Belliveau, dated August 16, 2012,\\n\\nbut the record does not show the receipt of an Attending\\n\\nPhysician's Statement from any other treating physician. An August\\n\\n7, 2012, letter from Hartford requested assistance from Fortier's\\n\\nattorney in obtaining records from two particular hospitals where\\n\\nFortier had received medical care. Nothing in the record suggests\\n\\nthat Hartford received the requested information from the two\\n\\nhospitals from Fortier's attorney.\\n\\n A February 15, 2013, Hartford letter to Fortier's\\n\\nattorney similarly requested assistance in obtaining information\\n\\nfrom a medical provider, including updated Attending Physician's\\n\\nStatements. Dr. Belliveau returned an Attending Physician's\\n\\nStatement form that stated \\\"See attached\\\" and was otherwise nearly\\n\\nblank. The attached documents were Dr. Belliveau's office notes\\n\\nregarding Fortier for May 2011 through November 2012. There were\\n\\nno records pertaining to January and February 2013. A February\\n\\n18, 2013, letter to Dr. Belliveau requested a completed Attending\\n\\nPhysician's Statement as well as \\\"any other information you feel\\n\\nis pertinent to the processing of [Fortier's] claim.\\\" A March 29,\\n\\n2013, letter to Fortier's attorney sought assistance in obtaining\\n\\na completed form from Dr. Belliveau, rather than office notes and\\n\\nthe \\\"incomplete\\\" form. There is no evidence that this information\\n\\nwas then provided.\\n\\n\\n\\n\\n - 10 -\\n\\f Hartford sent a May 10, 2013, letter to Fortier's\\n\\nattorney, which stated that the letter was a \\\"final request for\\n\\nthe information [an Attending Physician's Statement] we need to\\n\\nfully evaluate Dr. Fortier's claim for LTD benefits\\\" (emphasis\\n\\nadded). It referred to several prior letters requesting\\n\\ninformation. According to Hartford's internal records, on July 8,\\n\\n2013, Dr. Belliveau sent a copy of the same incomplete form that\\n\\nhe had previously sent in February 2013.\\n\\n Even after this \\\"final request,\\\" Hartford sent several\\n\\nletters in July 2013 -- one directly to Fortier, two to Fortier's\\n\\nhealthcare providers -- seeking additional records or other\\n\\npertinent information.\\n\\nC. 2013 Adverse Benefit Determination\\n\\n In a letter to Fortier's attorney dated July 17, 2013,\\n\\nand apparently sent on July 23, 2013, (the \\\"July 17/23 letter\\\")\\n\\nHartford stated that it had \\\"completed [its] review of [Fortier's]\\n\\nclaim for benefits\\\" and it would stop paying LTD benefits to\\n\\nFortier on September 13, 2013, because it had determined on the\\n\\nrecord that the Mental Illness Limitation applied to Fortier. The\\n\\nletter stated: \\\"If you do not agree with our denial, in whole or\\n\\nin part, and you wish to appeal our decision, you or your\\n\\nauthorized representative must write to us within one hundred\\n\\neighty (180) days from the receipt of this letter\\\" and briefly\\n\\n\\n\\n\\n - 11 -\\n\\fexplained the appeals procedure (such as the address to which\\n\\ndocumentation should be sent).\\n\\n A few weeks after this letter, on August 10, 2013,\\n\\nFortier's attorney wrote to Hartford. He acknowledged notice of\\n\\nan adverse benefit determination and stated he had reviewed the\\n\\n\\\"adverse-benefit-decision-letter\\\"; he requested Fortier's claim\\n\\nfile, among other things. Hartford complied with this request on\\n\\nAugust 19, 2013. Between August 2013 and March 2014, nothing in\\n\\nthe record indicates that Fortier's attorney retracted his\\n\\nstatement that Hartford had made an adverse benefit determination.\\n\\nD. March 2014 Appeal Letter\\n\\n Fortier did not appeal within 180 days of receipt of the\\n\\nnotice (the July 17/23 letter). Fortier, through her attorney,\\n\\nsent a letter dated March 7, 2014, purporting to appeal. This was\\n\\nabout two months later than 180 days from the receipt of the July\\n\\n17/23 letter. Hartford responded in a letter dated March 26, 2014,\\n\\nstating that it would not consider Fortier's appeal because it was\\n\\nuntimely.5\\n\\n\\n\\n\\n 5 That same day, the Harford Appeal Specialist who signed\\nthe March 26 letter spoke with Fortier's attorney on the phone.\\nHartford's call notes from this call state that Fortier's attorney\\n\\\"disagree[d] with the decision because the claimant's last payment\\nwas in September,\\\" but do not show that he offered any other excuse\\nfor filing later than 180 days after receiving the July 17/23\\nletter.\\n\\n\\n - 12 -\\n\\fE. Federal Lawsuit\\n\\n About two years after Fortier's attempted administrative\\n\\nappeal in March 2014, she filed a two-count complaint in federal\\n\\ndistrict court under ERISA Section 502(a), 29 U.S.C. § 1132(a) on\\n\\nJuly 15, 2016. Count One sought reinstatement of LTD benefits,\\n\\nwhich had been terminated in accordance with the July 17/23 letter.\\n\\nCount Two sought attorneys' fees and costs under 29 U.S.C.\\n\\n§ 1132(g)(1). On December 14, 2016, Fortier filed an amended\\n\\ncomplaint, adding a count challenging the legality of the Mental\\n\\nIllness Limitation under the Americans with Disabilities Act\\n\\n(\\\"ADA\\\").\\n\\n On January 27, 2017, Hartford moved to dismiss (styled\\n\\nas a partial motion to dismiss), arguing that Fortier had not\\n\\nexhausted her administrative remedies and had not set forth a claim\\n\\nunder the ADA; Fortier opposed this motion. On September 11, 2017,\\n\\nthe District Court dismissed the ADA claim but not Count One\\n\\nregarding the denial of LTD benefits. The parties each then filed\\n\\nmotions for judgment on the administrative record.\\n\\n The district court issued a Memorandum and Opinion and\\n\\nentered judgment in Hartford's favor. Fortier, 2018 WL 3542863.\\n\\nThe district court held that Fortier had not timely appealed, and\\n\\nso had not exhausted her administrative remedies. Id. at *11.\\n\\nThe district court rejected Fortier's equitable arguments that her\\n\\nappeal was timely under either the substantial compliance doctrine\\n\\n\\n - 13 -\\n\\for New Hampshire's notice-prejudice rule. Id. at *8-*11. Fortier\\n\\nappealed from the judgment. Her appeal does not contest the\\n\\ndismissal of the ADA claim.\\n\\n II.\\n\\n We review the district court's grant of judgment on the\\n\\nadministrative record de novo. Glista v. Unum Life Ins. Co. of\\n\\nAm., 378 F.3d 113, 125 (1st Cir. 2004). We need not consider the\\n\\nappropriate standard of review for \\\"reviewing determinations made\\n\\nregarding benefits claims,\\\" Rodríguez–López v. Triple-S Vida,\\n\\nInc., 850 F.3d 14, 20 (1st Cir. 2017), because our review examines\\n\\nwhether Fortier exhausted her administrative remedies and not the\\n\\nmerits of Hartford's adverse benefit determination.\\n\\n In order to bring suit under a benefits plan subject to\\n\\nERISA, a beneficiary must exhaust the plan's administrative\\n\\nremedies. Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d\\n\\n49, 51-52 (1st Cir. 2014); see Heimeshoff v. Hartford Life &\\n\\nAccident Ins. Co., 571 U.S. 99, 105 (2013) (noting that \\\"courts of\\n\\nappeals have uniformly required that participants exhaust internal\\n\\nreview before bringing a claim [under ERISA] for judicial review\\\").\\n\\n We first address Fortier's arguments about the proper\\n\\nstarting date for the 180-day time limit for appeals and about\\n\\nHartford's compliance with the Plan, before considering Fortier's\\n\\nequitable arguments concerning the substantial compliance doctrine\\n\\nand New Hampshire's common law notice-prejudice rule.\\n\\n\\n - 14 -\\n\\fA. ERISA's Requirements and the 180-Day Time Limit\\n\\n Fortier argues that an ERISA regulation defining an\\n\\n\\\"adverse benefit determination\\\" requires that the 180-day time\\n\\nlimit start at the date of termination of benefits and not from\\n\\nthe date of notice. This argument fails.\\n\\n Fortier's reading of ERISA regulations is plainly wrong.\\n\\nThe relevant ERISA regulation does not define an \\\"adverse benefit\\n\\ndetermination\\\" as a \\\"contemporary cessation of benefits,\\\" as\\n\\nFortier contends.6 The ERISA regulation concerning notice of an\\n\\nadverse benefit determination states in part that a complying group\\n\\nhealth plan7 must \\\"[p]rovide claimants at least 180 days following\\n\\nreceipt of a notification of an adverse benefit determination\\n\\nwithin which to appeal the determination.\\\" 29 C.F.R. § 2560.503-\\n\\n1(h)(3)(i) (emphasis added). Notice is the key event. The ERISA\\n\\n\\n\\n\\n 6 In relevant part, the regulation states that \\\"[t]he term\\n'adverse benefit determination' means: (i) Any of the following:\\na denial, reduction, or termination of, or a failure to provide or\\nmake payment (in whole or in part) for, a benefit.\\\" 29 C.F.R.\\n§ 2560.503–1(m)(4)(i). Denial of benefits, termination of\\nbenefits, and reduction of benefits are listed separately by this\\ndefinition, and so it would not make sense for the term \\\"denial\\\"\\nto mean only the \\\"termination\\\" of benefits.\\n 7 The parties agree that the Plan was a group health plan.\\nUnder ERISA, \\\"[t]he term 'group health plan' means an employee\\nwelfare benefit plan providing medical care . . . to participants\\nor beneficiaries directly or through insurance, reimbursement, or\\notherwise.\\\" 29 U.S.C. § 1167(1).\\n\\n\\n\\n - 15 -\\n\\fregulations do not require that the time limit for an\\n\\nadministrative appeal run from the date of termination of benefits.\\n\\nB. Hartford's Conduct\\n\\n Fortier also argues that: Hartford's letters from June\\n\\n4, 2012, and July 17/23, 2013, were inconsistent; and a portion of\\n\\nHartford's \\\"Product Manual\\\" (in essence, internal guidelines)\\n\\nshows that Hartford breached its own internal guidelines.8 We\\n\\nassume for the sake of argument that Hartford's conduct is relevant\\n\\nhere.\\n\\n These arguments fail, as Hartford's conduct was\\n\\nconsistent with ERISA and relevant regulations. The Plan (which\\n\\nis the governing document) plainly laid out the 180-day notice\\n\\nrule. Specifically, the Plan's Certificate of Insurance, which\\n\\nwas expressly incorporated as part of the Plan terms, included --\\n\\nunder the heading \\\"Claim Denial: What recourse do I have if my\\n\\nclaim is denied?\\\" -- a clear statement that a claimant \\\"must\\n\\nrequest a review upon written application within . . . 180 days of\\n\\nreceipt of claim denial.\\\" The Certificate of Insurance also\\n\\n\\n 8 Fortier makes a passing reference in the \\\"Statement of\\nthe Relevant Facts\\\" section of her brief to language in the\\nCertificate of Insurance requiring that, \\\"On any wholly or\\npartially denied claim, you or your representative must appeal\\nonce to [Hartford] for a full and fair review.\\\" However, Fortier's\\npoint is not clear; if the implicit argument is that the latter\\nappeal filed in March 2014 was unnecessary to exhaust Fortier's\\nadministrative remedies because she had already appealed in 2012\\non the same claim, it is waived for lack of development. See\\nUnited States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\\n\\n\\n - 16 -\\n\\fstated, under the heading \\\"Appealing Denials of Claims for\\n\\nBenefits,\\\" that:\\n\\n On any wholly or partially denied claim, you\\n or your representative must appeal once to\\n [Hartford] for a full and fair review. You\\n must complete this claim appeal process before\\n you file an action in court. Your appeal\\n request must be in writing and be received by\\n [Hartford] no later than the expiration of 180\\n days from the date you received your claim\\n denial.\\n\\nThis document refutes Fortier's argument. Further, the 180-day\\n\\ntime limit complies with the relevant ERISA regulation. See 29\\n\\nC.F.R. § 2560.503-1(h)(3)(i).\\n\\n The July 17/23 letter from Hartford to Fortier's\\n\\nattorney clearly stated, \\\"If you do not agree with our denial, in\\n\\nwhole or in part, and you wish to appeal our decision, you or your\\n\\nauthorized representative must write to us within one hundred\\n\\neighty (180) days from the receipt of this letter.\\\" Fortier\\n\\nacknowledges that this letter gave notice of her appeal rights.\\n\\n Fortier contrasts the June 4, 2012, and the July 17/23,\\n\\n2013, letters from Hartford, arguing that \\\"[o]ne cannot be an\\n\\n'adverse benefit determination' and not the other.\\\" This argument\\n\\nis simply wrong and mischaracterizes the letters. The June 4,\\n\\n2012, letter gave reasons for the extension of benefits discussed\\n\\nin the May 22, 2012, letter, but also warned of the new termination\\n\\ndate of those benefits. The July 17/23 letter, sent more than a\\n\\nyear later, announced the final adverse benefit determination and\\n\\n\\n - 17 -\\n\\fgave notice of the right to appeal within 180 days of receipt of\\n\\nthe letter.\\n\\n Fortier also argues that a page from Hartford's Product\\n\\nManual demonstrates that \\\"Hartford believes a letter should be\\n\\nsent advising of presuit appeals rights when the claim is paid and\\n\\nclosed, not two months before.\\\" The language Fortier focuses on\\n\\nis a portion of an instruction to Hartford employees that \\\"appeal\\n\\nlanguage should again be utilized once the limited benefit duration\\n\\nhas been paid and the claim terminated.\\\" This page is not relevant\\n\\nhere, and likely not admissible.9\\n\\n\\n\\n\\n 9 This page from the Product Manual is not part of the\\nadministrative record in this case and was obtained by Fortier's\\nattorney through discovery in a different and unrelated case in\\n2009 (which he acknowledges). \\\"[S]ome very good reason is needed\\nto overcome the presumption that the record on review is limited\\nto the record before the administrator.\\\" Morales-Alejandro v.\\nMed. Card Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007) (quoting\\nListon v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st\\nCir. 2003)).\\n In Glista, this court allowed the consideration of two\\ninternal insurance company documents; such internal documents \\\"are\\nmost likely to be relevant where they have been authenticated,\\nhave been generated or adopted by the plan administrator, concern\\nthe policy in question, are timely to the issue in the case, are\\nconsistently used, and were known or should have been known by\\nthose who made the decision.\\\" 378 F.3d at 123.\\n Here, we do not know whether the Product Manual reflects\\nHartford's understanding of the Plan or its appeals procedures.\\nFurther, there is no evidence in the record showing that Hartford\\nused this Product Manual, or that it was or should have been known\\nto the relevant Hartford employees. Taken together, these facts\\nmake the Product Manual irrelevant here.\\n\\n\\n\\n - 18 -\\n\\f In summary, Hartford properly followed the terms of the\\n\\nPlan, which met the ERISA requirements. Hartford's July 17/23\\n\\nletter was an adverse benefit determination and provided notice of\\n\\nthe right to appeal. The 180-day time limit began at the receipt\\n\\nof this letter, and so Fortier's attempted appeal in March 2014\\n\\nwas untimely. In the ERISA context, \\\"[h]aphazard waiver of time\\n\\nlimits would increase the probability of inconsistent results.\\\"\\n\\nTerry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998).\\n\\nC. Inapplicability of the Doctrine of Substantial Compliance\\n\\n The judicially-created doctrine of \\\"substantial\\n\\ncompliance,\\\" an ERISA doctrine, has been applied to excuse an\\n\\ninsurer's failure to comply precisely with ERISA's notice\\n\\nrequirements, so long as the insured person was \\\"supplied with a\\n\\nstatement of reasons that, under the circumstances of the case,\\n\\npermitted a sufficiently clear understanding of the\\n\\nadministrator's position to permit effective review.\\\" Niebauer v.\\n\\nCrane & Co., 783 F.3d 914, 927 (1st Cir. 2015) (quoting Terry, 145\\n\\nF.3d at 39); see Santana-Díaz v. Metro. Life Ins. Co., 816 F.3d\\n\\n172, 178 (1st Cir. 2016).10 In fact, the doctrine assists with the\\n\\n\\n 10 Some other circuits have applied a broader version of\\nthe doctrine to other situations under ERISA, such as an insurer's\\nsubstantial compliance with a change of beneficiary. See, e.g.,\\nDavis v. Combes, 294 F.3d 931, 941-42 (7th Cir. 2002) (change of\\nbeneficiary); but see Hall v. Metro. Life Ins. Co., 750 F.3d 995,\\n1000-01 (8th Cir. 2014) (in a different context, rejecting the\\ndoctrine in a change of beneficiary situation). But no circuit\\nhas applied the doctrine to excuse a late administrative appeal by\\n\\n\\n - 19 -\\n\\fprompt review of denial of benefits, and Fortier is arguing for\\n\\ndelay, not prompt review.\\n\\n Fortier makes a fairness argument: since Hartford has at\\n\\nleast once had the doctrine applied in its favor, Fortier should\\n\\nreceive the benefit of the doctrine. See, e.g., Topalian v.\\n\\nHartford Life Ins. Co., 945 F. Supp. 2d 294, 339 (E.D.N.Y. 2013)\\n\\n(finding that \\\"Hartford was in substantial compliance with the\\n\\n[Department of Labor]'s regulatory deadlines\\\" despite Hartford\\n\\nmaking a late benefit determination). Neither the caselaw nor 29\\n\\nC.F.R. § 2560.503-1(b)(5)11 supports Fortier's argument.12\\n\\n We agree generally with Edwards, where the Seventh\\n\\nCircuit held that the substantial compliance doctrine did not apply\\n\\n\\n\\n\\na claimant, which is what Fortier asks that we do, and some have\\nrejected the argument. See, e.g., Edwards, 639 F.3d at 362-63.\\n 11 This regulation addresses the \\\"[o]bligation to establish\\nand maintain reasonable claims procedures.\\\"\\n 12 We do not specifically address all of Fortier's broad\\nstatements concerning duties of loyalty, good faith, and fair\\ndealing. These assertions rest on the assumption that a \\\"desire\\nto save money had to be the overriding force in Hartford's biased\\nclaim adjudication\\\" and the related assumption that \\\"Hartford's\\nimproper motive caused it to ultimately refuse to review Dr.\\nFortier's . . . appeal.\\\"\\n These assumptions are not adequately supported in\\nFortier's briefs, nor in the record. Fortier does not point to\\nanything in the record that clearly suggests, let alone proves,\\nsuch an improper motive. Her primary support for such a motive is\\nthe relative speed (about two weeks) in which Hartford granted\\nFortier's May 2012 appeal, but this does not itself demonstrate a\\n\\\"biased claim adjudication.\\\"\\n\\n\\n - 20 -\\n\\fto a claimant's late appeal from a denial of benefits. The Seventh\\n\\nCircuit reasoned that:\\n\\n [I]t seems consistent neither with the\\n policies underlying the requirement of\\n exhaustion of administrative remedies in ERISA\\n cases nor with judicial economy to import into\\n the exhaustion requirement the substantial\\n compliance doctrine. To so hold would render\\n it effectively impossible for plan\\n administrators to fix and enforce\\n administrative deadlines while involving\\n courts incessantly in detailed, case-by-case\\n determinations as to whether a given\\n claimant's failure to bring a timely appeal\\n from a denial of benefits should be excused or\\n not.\\n\\nEdwards, 639 F.3d at 362.13 As in Edwards, see id. at 359, the\\n\\nPlan here contained a clear deadline for appeals of adverse benefit\\n\\ndeterminations. In coming to its conclusion, the Seventh Circuit\\n\\ndetermined that, though the plan administrator had discretion to\\n\\nconsider an untimely appeal, the claimant \\\"ha[d] never offered an\\n\\nexplanation for the untimeliness of her appeal that would warrant\\n\\nsuch an exercise of discretion in her favor [by the plan\\n\\nadministrator].\\\" Id. at 362. The same is true here. We find\\n\\nconvincing the concerns about the harms that would result from\\n\\napplying the substantial compliance doctrine to excuse a\\n\\nclaimant's failure to meet the exhaustion requirement.14\\n\\n\\n\\n\\n 13 We acknowledge that there may well be ERISA cases where\\ncertain exceptions and doctrines can dictate a different outcome.\\n\\n 14 Fortier has not made an equitable tolling argument.\\n\\n\\n - 21 -\\n\\f Further, the Supreme Court has discussed ERISA's\\n\\n\\\"'careful balancing' between ensuring fair and prompt enforcement\\n\\nof rights under a plan and the encouragement of the creation of\\n\\nsuch plans.\\\" Aetna Health Inc. v. Davila, 542 U.S. 200, 215 (2004)\\n\\n(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987));\\n\\nsee also Heimeshoff, 571 U.S. at 108 (noting that a \\\"focus on the\\n\\nwritten terms of the plan is the linchpin of\\\" the ERISA system).\\n\\nAdoption of Fortier's argument would risk upsetting this balance\\n\\nand reducing the incentive for employers to set up benefit plans.\\n\\n Next, Fortier's reliance on 29 C.F.R. § 2560.503-1(b)(5)\\n\\nis fundamentally misconceived. Nothing in the regulation would be\\n\\n\\\"undermined by Hartford when it applies deadlines strictly against\\n\\nplan participants.\\\" In fact, \\\"ERISA's exhaustion requirement\\n\\nserves different purposes than the denial of claims process,\\\"\\n\\nFortier, 2018 WL 3542863, at *10, and so all aspects of such\\n\\nprocesses need not be the same.\\n\\n The substantial compliance doctrine does not excuse\\n\\nFortier's untimely ERISA administrative appeal.15\\n\\n\\n\\n\\n 15 Fortier makes no argument that we should excuse her\\nfailure to exhaust the available administrative remedies. See,\\ne.g., Medina v. Metro. Life Ins. Co., 588 F.3d 41, 47 (1st Cir.\\n2009); Madera v. Marsh USA, Inc., 426 F.3d 56, 62-63 (1st Cir.\\n2005); Turner v. Fallono Cmty. Health Plan, Inc., 127 F.3d 196,\\n200 (1st Cir. 1997); Drinkwater v. Metro. Life Ins. Co., 846 F.2d\\n821, 826 (1st Cir. 1988).\\n\\n\\n - 22 -\\n\\fD. Inapplicability of New Hampshire's Notice-Prejudice Rule\\n\\n Fortier argues next that New Hampshire's common law\\n\\nnotice-prejudice rule (where an insurer must show prejudice in\\n\\norder to deny certain limited types of untimely insurance claims)\\n\\nshould apply to her situation. Our own case law leads us to reject\\n\\nthe argument, as do decisions of our sister circuits. See Edwards,\\n\\n639 F.3d at 363; Chang v. Liberty Life Assurance Co., 247 F. App'x\\n\\n875, 878 (9th Cir. 2007).\\n\\n This court, discussing ERISA appeals procedures and the\\n\\nexhaustion requirement, has stated that:\\n\\n Congress' apparent intent in mandating these\\n internal claims procedures was to minimize the\\n number of frivolous ERISA lawsuits; promote\\n the consistent treatment of benefit claims;\\n provide a nonadversarial dispute resolution\\n process; and decrease the cost and time of\\n claims settlement. It would be anomalous if\\n the same reasons which led Congress to require\\n plans to provide remedies for ERISA claimants\\n did not lead courts to see that those remedies\\n are regularly utilized.\\n\\nTerry, 145 F.3d at 40 (quoting Makar v. Health Care Corp. of the\\n\\nMid-Atlantic (CareFirst), 872 F.2d 80, 83 (4th Cir. 1989)); accord\\n\\nSchorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734, 739\\n\\n(7th Cir. 2012); Kennedy v. Empire Blue Cross & Blue Shield, 989\\n\\nF.2d 588, 594 (2d Cir. 1993). This court stated further in Terry\\n\\nthat \\\"[i]t would hardly make sense to permit the filing of [a late]\\n\\nappeal . . . in light of the internal claims procedures' aims of\\n\\nconsistency and economy.\\\" Terry, 145 F.3d at 40. Adopting\\n\\n\\n - 23 -\\n\\fFortier's argument would reduce consistency in determinations and\\n\\nnational consistency. Further, \\\"permitting appeals well after the\\n\\ntime for them has passed can only increase the cost and time of\\n\\nthe settlement process.\\\" Id. The exhaustion requirement -- and\\n\\nseveral of its underlying policy goals -- would be undercut by an\\n\\nextension of a state law notice-prejudice rule to ERISA appeals.\\n\\nSee Stacy v. Appalachian Regional Healthcare, Inc., 259 F. Supp.\\n\\n3d 644, 654 (E.D. Ky. 2017).\\n\\n The Seventh and Ninth Circuits have agreed that state\\n\\ncommon law notice-prejudice rules do not apply to ERISA appeals.\\n\\nSee Edwards, 639 F.3d at 363; Chang, 247 F. App'x at 878. Indeed,\\n\\nno federal court has applied any state's common law notice-\\n\\nprejudice rule to excuse a late administrative ERISA appeal.16\\n\\n\\n\\n\\n 16 The District Court for the Eastern District of\\nPennsylvania suggested in dictum that an untimely ERISA appeal\\nwould have been subject to the notice-prejudice rule. Foley v.\\nInt'l Bhd. of Elec. Workers Local Union 98 Pension Fund, 91 F.\\nSupp. 2d 797, 803 n.6 (E.D. Pa. 2000) (\\\"Even if [the plaintiff's]\\nappeal were untimely, defendants would not prevail, because they\\nhave not shown that they were prejudiced by the untimely\\nsubmission, as they are required to do under the Supreme Court's\\nrecent decision in UNUM.\\\")\\n This footnote appears to rest on a misunderstanding of\\nUNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999), though, and is\\nnot a holding. UNUM focused on California's relatively broad\\nnotice-prejudice rule and on California's specific policy\\ninterests underlying this rule; it still did not extend\\nCalifornia's notice-prejudice rule to an ERISA appeal. See id. at\\n372-73. Further, it made no express holding about other states'\\nnotice-prejudice rules, see generally id., and simply noted that\\n\\\"[d]ecisions of courts in [some] other States . . . indicate that\\nthe notice-prejudice rule addresses policy concerns specific to\\n\\n\\n - 24 -\\n\\fSee, e.g., Chang, 247 F. App'x at 878 (\\\"[T]o extend the notice-\\n\\nprejudice rule to ERISA appeals would extend the rule substantially\\n\\nbeyond its previous uses.\\\").\\n\\n We add that New Hampshire has never suggested that its\\n\\nnotice-prejudice rule applies to ERISA appeals, and note that the\\n\\nstate has only applied the doctrine where the facts involve an\\n\\ninitial claim made in an occurrence-based insurance policy.17 See,\\n\\ne.g., Bianco Prof'l Ass'n v. Home Ins. Co., 740 A.2d 1051, 1057\\n\\n(N.H. 1999). There is no reason to think that the New Hampshire\\n\\ncourts would countenance Fortier's attempted use of the notice-\\n\\nprejudice rule.\\n\\n III.\\n\\n For the stated reasons, the decision of the district\\n\\ncourt is affirmed. Costs are awarded to Hartford.\\n\\n\\n\\n\\ninsurance,\\\" id. at 372. Indeed, the court acknowledged \\\"States'\\nvarying insurance regulations.\\\" Id. at 376 n.6.\\n 17 Fortier also cites a New Hampshire law in support of her\\nargument that an initial claim should be treated the same as an\\nappeal under New Hampshire's notice-prejudice rule. This law,\\ntitled \\\"Unfair Methods, Acts, and Practices Defined,\\\" bars\\ninsurers from \\\"[n]ot attempting in good faith to effectuate prompt,\\nfair and equitable settlements or compromises of claims in which\\nliability has become reasonably clear.\\\" N.H. Rev. Stat. Ann.\\n§ 417:4(XV)(a)(4). This provision is inapposite: Liability was\\nnot reasonably clear, and the record does not demonstrate bad faith\\non the part of Hartford.\\n\\n\\n - 25 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":475,"cells":{"id":{"kind":"number","value":4593288,"string":"4,593,288"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Shawn SAYER, Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Sayer"},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"17-2065P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Torruella, Thompson\", \"parties\": \"\", \"opinions\": [{\"author\": \"TORRUELLA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-2065\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n SHAWN SAYER,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Jon D. Levy, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Thompson, Circuit Judges.\\n\\n\\n William S. Maddox, on brief for appellant.\\n Renée M. Bunker, Assistant United States Attorney, Appellate\\nChief, and Halsey B. Frank, United States Attorney, on brief for\\nappellee.\\n\\n\\n\\n February 22, 2018\\n\\f TORRUELLA, Circuit Judge. In 2012, appellant Shawn\\n\\nSayer (\\\"Sayer\\\") pled guilty to one count of cyberstalking in\\n\\nviolation of 18 U.S.C. §§ 2261A(2) and 2261(b)(5). He commenced\\n\\nhis supervised release term in 2016, but it was revoked in 2017\\n\\nbecause he violated some of his conditions. On appeal, Sayer\\n\\ncontends that the district court's upwardly-variant sentence\\n\\nfollowing revocation is procedurally and substantively\\n\\nunreasonable. Moreover, he challenges the district court's\\n\\nimposition of a supervised release term in addition to the\\n\\nstatutory maximum term of imprisonment upon revocation.1 After\\n\\ncareful review, we affirm.\\n\\n I. Background\\n\\n We briefly summarize the relevant facts and procedural\\n\\ncourse of this case.2\\n\\n After Jane Doe3 ended her relationship with Sayer in\\n\\nJanuary 2006, Sayer stalked and harassed her for various years,\\n\\n\\n1 The maximum prison term that may be imposed following revocation\\nis set forth at 18 U.S.C. § 3583(e)(3) and is based on the class\\nof the original offense.\\n2 We draw the uncontested facts underpinning Sayer's original\\nsentence from this court's opinion affirming that sentence. See\\nUnited States v. Sayer, 748 F.3d 425 (1st Cir. 2014). The facts\\nregarding Sayer's conduct while on supervised release derive from\\nthe Probation Office's Revocation Report, which the district court\\nadopted in its entirety with no objection from Sayer to the\\ninformation therein.\\n3 As before, we refer to Sayer's victim as \\\"Jane Doe\\\" to preserve\\n\\n -2-\\n\\fcausing her to seek a protective order against him in state court.\\n\\nUnited States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014). In the\\n\\nfall of 2008, Sayer started using the internet to induce random\\n\\nthird parties to harass Jane Doe. Id. After several unknown,\\n\\n\\\"'dangerous'-looking men\\\" arrived at Doe's house in Maine in\\n\\nOctober 2008 \\\"seeking 'sexual entertainment,'\\\" she discovered an\\n\\nad in the \\\"casual encounters\\\" section of Craigslist that showed\\n\\npictures of her in lingerie, which Sayer had taken while they were\\n\\ndating. Id. The ad described a list of sexual acts she was\\n\\nsupposedly willing to perform and provided her address. Id. Jane\\n\\nDoe had not posted the ad, nor authorized Sayer to do so. Id.\\n\\n The unwanted visits from unknown men persisted until\\n\\nJane Doe moved to her aunt's house in Louisiana and changed her\\n\\nname, seeking to avoid Sayer's harassment. The visits stopped\\n\\nuntil August 2009, when, once again, an unknown man showed up at\\n\\nher aunt's home in Louisiana, referring to Doe by her new name,\\n\\nclaiming that he had met her over the internet, and seeking a\\n\\nsexual encounter. Id. Jane Doe later found: 1) videos of herself\\n\\nand Sayer engaged in sexual acts on various pornography websites\\n\\ndetailing her name and current Louisiana address; (2) a fraudulent\\n\\nFacebook account including sexually explicit pictures of her; and\\n\\n\\nher privacy. Sayer, 748 F.3d at 428 n.1. For the same reason,\\nwe will refer to Sayer's second victim as \\\"M.G.\\\"\\n\\n\\n -3-\\n\\f(3) a fake account on another social network, Myspace, which\\n\\nprovided both her old and new names, her Louisiana address, and\\n\\nlinks to pornography sites hosting sex videos of her. Id. at 428-\\n\\n429. After police searched Sayer's home in June 2010, a forensic\\n\\nanalysis of his computer showed that between June and November\\n\\n2009, Sayer had created \\\"numerous fake profiles\\\" on Yahoo!\\n\\nMessenger using a variation of Jane Doe's name. Id. at 429. In\\n\\nmany cases, \\\"Sayer, posing as Jane Doe, chatted with men online\\n\\nand encouraged them to visit [her] at her home in Louisiana.\\\"4\\n\\nId.\\n\\n In 2012, Sayer pled guilty to cyberstalking. 5 The\\n\\ndistrict court imposed a prison term of sixty months, the statutory\\n\\nmaximum, to be followed by three years of supervised release.\\n\\n\\n\\n\\n4 Jane Doe was forced to return to Maine in November 2009, as the\\nmen that Sayer sent to the Louisiana residence scared her aunt and\\ncousin, with whom she was staying. Id.\\n5 The indictment encompassed conduct from \\\"about July 2009, the\\nexact date being unknown, until about November 2009,\\\" and alleged\\nthat the defendant:\\n\\n with the intent to injure, harass, and cause substantial\\n emotional distress to a person in another state, namely,\\n Louisiana, used facilities of interstate or foreign\\n commerce, including electronic mail and internet\\n websites, to engage in a course of conduct that caused\\n substantial emotional distress to the victim and placed\\n her in reasonable fear of death or serious bodily injury.\\n\\n\\n -4-\\n\\f Sayer commenced his supervised release in February 2016.\\n\\nDuring the initial supervised release orientation, Sayer\\n\\nidentified several goals, including finding full-time employment,\\n\\nsaving money, and purchasing a truck. He worked in the school\\n\\nlunch program for the City of Portland while searching for\\n\\ncarpentry-related employment. 6 In May 2016, Sayer secured\\n\\nemployment with a construction company in the carpentry industry.\\n\\n In June 2016, the Probation Office filed a petition to\\n\\nmodify Sayer's supervised release conditions to add a requirement\\n\\nthat he participate in a Computer and Internet Monitoring Program\\n\\n(\\\"CIMP\\\"), which involved partial or full restriction of his use of\\n\\ncomputers and the internet and required him to submit to\\n\\nunannounced searches of his computer, storage media, and\\n\\nelectronic or internet-capable devices. Despite Sayer's\\n\\nopposition, the district court imposed the CIMP condition,\\n\\nexplaining that it had inadvertently omitted it at the time of\\n\\nSayer's original sentencing but that it was warranted considering\\n\\nthe \\\"nature and seriousness\\\" of Sayer's underlying offense.\\n\\n During his supervised release term, Sayer began a\\n\\nrelationship with M.G. On October 25, 2016, Sayer called the\\n\\n\\n\\n6 He secured this employment while serving the final part of his\\ncustodial sentence (pre-release) in the Pharos House Residential\\nReentry Center.\\n\\n\\n -5-\\n\\fProbation Officer to inform that \\\"things [had gone] sour\\\" with\\n\\nM.G. While Sayer insisted that M.G. \\\"never explicitly asked him\\n\\nto not contact her,\\\" he acknowledged that she had blocked\\n\\ncommunications with him on Facebook and ignored multiple text\\n\\nmessages. The Probation Officer encouraged him to stop contacting\\n\\nM.G. During a meeting with Sayer days later, the Probation Officer\\n\\nbrought up Sayer's communications with M.G., emphasizing that\\n\\nSayer was \\\"exhibiting at risk communication that reached an\\n\\nobsessive level.\\\" The Probation Officer informed Sayer that his\\n\\ninternet access would be restricted for a while to allow the\\n\\nProbation Office to investigate the extent of his communication\\n\\nwith M.G.\\n\\n On November 18, 2016, M.G. denied any issues of\\n\\nharassment and said she and Sayer were \\\"working things out.\\\"\\n\\nHence, on November 29, 2016, the Probation Officer informed Sayer\\n\\nthat he would restore his internet access, based on the results of\\n\\nthe investigation. The Probation Officer later discovered that\\n\\nSayer continued to use the internet during his period of\\n\\nrestriction as the software installed by the Probation Office had\\n\\nfailed to block his access. When confronted, Sayer said that\\n\\nalthough he had felt \\\"shocked\\\" when he was able to access the\\n\\ninternet after being told he would not be able to, he just \\\"went\\n\\nalong with it.\\\"\\n\\n\\n -6-\\n\\f In a meeting on January 4, 2017, Sayer and the Probation\\n\\nOfficer once again discussed Sayer's communications with M.G., as\\n\\nshe had recently requested he \\\"leave her alone.\\\" Sayer insisted\\n\\nthat his multiple messages were \\\"his way of 'helping' her through\\n\\nperiods of depression.\\\" He seemed \\\"very bothered\\\" by the breakdown\\n\\nof his relationship and expressed concern for an iPhone and iPad\\n\\nthat he had let M.G. borrow and she had not returned. The\\n\\nProbation Officer suggested a mental health assessment, but Sayer\\n\\nsaid he was \\\"not really that upset.\\\" During this meeting, the\\n\\nProbation Officer also discussed nude photos of M.G. in Sayer's\\n\\ncellphone, some in which M.G. was \\\"not looking at the camera and\\n\\nit [was] unclear how aware she [was].\\\" The Probation Officer\\n\\ninstructed Sayer to inform M.G. that his cellphone was monitored\\n\\nand other people had access to her photos.\\n\\n In mid-January 2017, the Probation Office discovered a\\n\\nGPS tracker application in Sayer's cellphone, which Sayer admitted\\n\\nto connecting to the iPad he had lent M.G.7 The following month,\\n\\nSayer scheduled a mental health assessment as instructed by the\\n\\nProbation Office, which he referred to as \\\"ridiculous.\\\"\\n\\n\\n7 Sayer alleged that he installed the tracker because he wanted\\nto know whether M.G. had mailed his iPad back. He provided\\nevidence that it had been disabled. From the Revocation Report,\\nit is unclear whether Sayer had previously disabled the tracker of\\nhis own volition, or whether he had only done so after prodding by\\nthe Probation Office.\\n\\n\\n -7-\\n\\f In late February 2017, M.G. sought a no contact order\\n\\nregarding Sayer from the Ellsworth, Maine Police Department, and\\n\\nas a result Sayer was verbally instructed to cease all\\n\\ncommunications with her. On May 8, 2017, M.G. contacted the\\n\\nProbation Office to inform that Sayer had been obsessively\\n\\ncontacting her via phone and email. She reported that he called\\n\\nfrom different numbers and was able to mask his phone number to\\n\\nappear as though another contact was calling. She also reported\\n\\nhe emailed her from multiple accounts.\\n\\n On May 23, 2017, the Probation Office filed a petition\\n\\nto revoke Sayer's supervised release, alleging that Sayer had\\n\\nviolated the CIMP condition by opening and using a series of online\\n\\naccounts without prior permission from Probation. Sayer waived\\n\\nthe preliminary revocation hearing, and the district court\\n\\nscheduled the final revocation hearing for October 24, 2017. On\\n\\nthat day, Sayer waived the right to a hearing and admitted to\\n\\ncommitting the violations. Specifically, Sayer admitted to: (1)\\n\\ninstalling twenty-two \\\"spoofing\\\" applications on his phone, which\\n\\nenabled him to place outgoing phone calls under the guise of a\\n\\ndifferent phone number, to call M.G.; (2) downloading twenty\\n\\nunapproved messenger applications; (3) opening 4 different email\\n\\naccounts, 3 of which were never reported to, nor approved by, the\\n\\nProbation Office, and were used to send multiple messages to M.G.;\\n\\n\\n -8-\\n\\fand (4) creating two dating profiles appearing to resemble M.G.,\\n\\nseeking to pose as a representation of her to find out if she was\\n\\ndating other men.\\n\\n Sayer also accepted the Probation Officer's Revocation\\n\\nReport without any objection to its content, except for a complaint\\n\\nthat it omitted some \\\"mutual\\\" communications between M.G. and him.\\n\\nWithout any further objection from Sayer, the district court\\n\\nadopted the Revocation Report in its entirety as findings in\\n\\nsupport of the revocation sentence. While the Guidelines\\n\\nSentencing Range was five to eleven months, the court ultimately\\n\\nvaried upwards to impose a sentence of a twenty-four-month prison\\n\\nterm and twelve months of supervised release.\\n\\n II. Discussion\\n\\n \\\"Appellate review of federal criminal sentences is\\n\\ncharacterized by a frank recognition of the substantial discretion\\n\\nvested in a sentencing court.\\\" United States v. Flores-Machicote,\\n\\n706 F.3d 16, 20 (1st Cir 2013). We review sentencing decisions\\n\\nunder the United States Sentencing Guidelines (\\\"U.S.S.G.\\\") for\\n\\n\\\"reasonableness, regardless of whether they fall inside or outside\\n\\nthe applicable [Guidelines Sentencing Range].\\\" United States v.\\n\\nTurbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our \\\"review\\n\\nprocess is bifurcated: we first determine whether the sentence\\n\\nimposed is procedurally reasonable and then determine whether it\\n\\n\\n -9-\\n\\fis substantively reasonable.\\\" United States v. Clogston, 662 F.3d\\n\\n588, 590 (1st Cir. 2011).\\n\\nA. Procedural Reasonableness of Sayer's Sentence\\n\\n We must ensure that the district court did not commit\\n\\nany \\\"significant procedural error\\\" to arrive at a sentence. Gall\\n\\nv. United States, 552 U.S. 38, 51 (2007). Examples of this include\\n\\n\\\"failing to calculate (or improperly calculating) the [GSR],\\n\\ntreating the Guidelines as mandatory, failing to consider the [18\\n\\nU.S.C.] § 3553(a) factors, selecting a sentence based on clearly\\n\\nerroneous facts, or failing to adequately explain the chosen\\n\\nsentence-including an explanation for any deviation from the\\n\\nGuidelines range.\\\" Flores-Machicote, 706 F.3d at 20 (alterations\\n\\nin original) (quoting Gall, 552 U.S. at 51).\\n\\n Preserved claims of sentencing error are generally\\n\\nreviewed for abuse of discretion. United States v. Márquez-\\n\\nGarcía, 862 F.3d 143, 145 (1st Cir. 2017). However, when a\\n\\ndefendant fails to contemporaneously object to the procedural\\n\\nreasonableness of a court's sentencing determination, we review\\n\\nfor plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,\\n\\n226 (1st Cir. 2015). Under the plain error standard, \\\"an appellant\\n\\nmust show: '(1) that an error occurred (2) which was clear or\\n\\nobvious and which not only (3) affected the [appellant's]\\n\\nsubstantial rights, but also (4) seriously impaired the fairness,\\n\\n\\n -10-\\n\\fintegrity, or public reputation of judicial proceedings.'\\\"\\n\\nMárquez-García, 862 F.3d at 145 (alterations in original)(quoting\\n\\nUnited States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Sayer\\n\\ndid not raise his procedural reasonableness argument before the\\n\\nsentencing court, so we review for plain error.8 See United States\\n\\nv. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).\\n\\n Sayer claims that the district court procedurally erred\\n\\nby failing to adequately explain the rationale for its chosen\\n\\nsentence. The revocation hearing transcript, however, refutes\\n\\nSayer's argument. The district court's remarks at sentencing made\\n\\nclear that it considered the factors required by 18 U.S.C.\\n\\n§ 3583(e), weighed them, and used its discretion to arrive at a\\n\\nreasoned, defensible decision. The court primarily stressed three\\n\\nfactors in support of its variant sentence: (1) Sayer's criminal\\n\\n\\n\\n8 Sayer argues that he properly preserved all of his arguments on\\nappeal. As the transcript of the revocation hearing reflects,\\nSayer's attorney stated: \\\"I would like to object to the upward\\nvariance. I think that is necessary to preserve all of Mr. Sayer's\\nappeal rights.\\\" This is insufficient. \\\"A general objection to\\nthe procedural reasonableness of a sentence is not sufficient to\\npreserve a specific challenge to any of the sentencing court's\\nparticularized findings. . . . [A]n objection must be sufficiently\\nspecific to call the district court's attention to the asserted\\nerror.\\\" United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st\\nCir. 2017); see also United States v. Sosa-González, 900 F.3d 1,\\n4 (1st Cir. 2018) (finding \\\"we object as to the sentence because\\nwe believe it is unreasonable\\\" to be insufficient to preserve a\\nprocedural objection). In any event, even reviewed under the\\nabuse of discretion standard, Sayer cannot meet his burden.\\n\\n\\n -11-\\n\\fhistory and the similarity of Sayer's conduct on supervised release\\n\\nto the conduct for which he had been convicted; (2) Sayer's\\n\\nunwillingness to accept responsibility; and (3) the need to protect\\n\\nthe public from further crimes.\\n\\n First, the court expressed that Sayer's behavior while\\n\\non supervised release \\\"demonstrates that he has continued with the\\n\\nsame sort of resistance to authority and compulsive thinking that\\n\\nresulted in his underlying cyberstalking conviction.\\\" It\\n\\nexplained that although Sayer's conduct while on supervision did\\n\\nnot \\\"rise to the level\\\" of the conduct for which he was originally\\n\\nconvicted, \\\"it certainly hearken[ed] toward it.\\\" Moreover, the\\n\\ncourt noted that Sayer had a Criminal History Category of III and\\n\\nemphasized that \\\"more important than that number is the nature of\\n\\nhis history,\\\" which is a:\\n\\n chronic pattern of stalking . . . and behavior involving\\n violations of protective orders and bail orders which\\n . . . [all] paint[] a picture . . . of a defendant who\\n is absolutely resistant to court order, court\\n supervision and respecting the rule of law as it pertains\\n to . . . employing cell phones and the Internet to\\n interfere with others.\\n\\n As to Sayer's unwillingness to accept responsibility,\\n\\nthe court emphasized that Sayer had described the Probation\\n\\nOfficer's order that he receive a mental health assessment as\\n\\n\\\"ridiculous\\\" and that \\\"today even I hear him blaming his\\n\\nrelationship with M.G. for his problems . . . as opposed to\\n\\n\\n -12-\\n\\faccepting full responsibility.\\\" Moreover, the court stressed the\\n\\neffect of Sayer's conduct on others and explained: \\\"[t]o some\\n\\ndegree the analogy to a drug addict is not appropriate. This is\\n\\nnot a situation where he is using illegal substances to his own\\n\\ndetriment only. This is a situation in which his behavior harms\\n\\nothers.\\\" Thus, the court ultimately concluded that: \\\"an upward\\n\\nvariant sentence is essential, because I have before me a defendant\\n\\nwho cannot control his behavior after all this history and for\\n\\nthat reason poses what I regard to be a substantial risk of harm\\n\\nto the public.\\\"\\n\\n This explanation was adequate, more than enough to\\n\\ndefeat Sayer's procedural challenge under both the plain error and\\n\\nabuse of discretion standards. Sentencing courts need not recount\\n\\nevery detail of their decisional processes; identification of the\\n\\n\\\"main factors behind [the] decision\\\" is enough. United States v.\\n\\nVargas-García, 794 F.3d 162, 166 (1st Cir. 2015). And although\\n\\nSayer contends that the court did not sufficiently explain why it\\n\\nrejected his arguments for a lower prison term, courts are not\\n\\nrequired to specifically explain why they rejected a particular\\n\\ndefense argument in favor of a lower sentence. See id. at 167\\n\\n(holding that while a \\\"sentencing court may have a duty to explain\\n\\nwhy it chose a particular sentence, it has 'no corollary duty to\\n\\n\\n\\n\\n -13-\\n\\fexplain why it eschewed other suggested sentences'\\\" (quoting\\n\\nUnited States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014))).\\n\\n In any case, the court did explain that although it had\\n\\nconsidered Sayer's progress while on supervised release, it\\n\\n\\\"pale[d] next to the continued absence of insight on his part as\\n\\nto the type of thinking and the type of behavior which is unlawful\\n\\nand is harmful, and it's harmful to other people, not just to him.\\\"\\n\\nHence, the district court's explanation of its variant sentence\\n\\nwas sufficient, and we discern no error, much less plain error.\\n\\nB. Substantive Reasonableness of Sayer's Sentence9\\n\\n \\\"[I]f the sentence is procedurally sound, we then ask\\n\\nwhether the sentence is substantively reasonable.\\\" United States\\n\\nv. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). A sentence is\\n\\nsubstantively reasonable so long as the sentencing court has\\n\\nprovided a \\\"plausible sentencing rationale\\\" and reached a\\n\\n\\\"defensible result.\\\" United States v. Martin, 520 F.3d 87, 96\\n\\n(1st Cir. 2008). In assessing the substantive reasonableness of\\n\\na sentence, this court should \\\"take into account the totality of\\n\\nthe circumstances, including the extent of any variance from the\\n\\nGuidelines [Sentencing] [R]ange.\\\" United States v. Contreras-\\n\\nDelgado, 913 F.3d 232, 243 (1st Cir. 2019) (quoting Gall, 552 U.S.\\n\\n\\n9 Sayer claims this issue should be reviewed for abuse of\\ndiscretion, and the government does not contest it.\\n\\n\\n -14-\\n\\fat 51). \\\"[T]he greater the variance, the more compelling the\\n\\nsentencing court's justification must be.\\\" United States v.\\n\\nVázquez-Vázquez, 852 F.3d 62, 67 (1st Cir. 2017) (quoting United\\n\\nStates v. Guzmán-Fernández, 824 F.3d 173, 178 (1st Cir. 2016)).\\n\\n Sayer's violation while on supervised release was a\\n\\nGrade C violation.10 Because Sayer had a Criminal History Category\\n\\nof III, the Guidelines Sentencing Range of imprisonment was five\\n\\nto eleven months. By imposing an imprisonment term of twenty-four\\n\\nmonths on revocation, the district court varied upwards by thirteen\\n\\nmonths. Sayer argues that his sentence is longer than necessary,\\n\\nand therefore substantially unreasonable because the court: (1)\\n\\n\\\"failed to calibrate the decisional scales\\\" by not accounting for\\n\\n\\\"obvious mitigating factors\\\"; and (2) left no room for harsher\\n\\nsentences for those with higher Criminal History Categories and\\n\\nmore serious violations.\\n\\n Sayer's arguments are without merit. To begin with, the\\n\\ndistrict court clearly stated that it considered the sentencing\\n\\nfactors set forth in 18 U.S.C. § 3553(a), including \\\"Sayer's\\n\\n\\n\\n10 The Sentencing Commission's policy statement divides conduct\\nthat violates conditions of supervision into three categories:\\nGrade A, B, and C violations. U.S.S.G. § 7B1.1(a). There are two\\ntypes of Grade C violations: \\\"(A) a federal, state, or local\\noffense punishable by a term of imprisonment of one year or less;\\nor (B) a violation of any other condition of supervision.\\\"\\nU.S.S.G. § 7B1.1(a)(3)(emphasis added).\\n\\n\\n -15-\\n\\fpersonal history and characteristics\\\" and \\\"the need for the\\n\\nsentence imposed to . . . avoid unwanted sentencing disparities.\\\"\\n\\nSee United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir.\\n\\n2014) (noting that a judge's statement that he has considered all\\n\\nof the § 3553(a) factors is entitled to significant weight).\\n\\nMoreover, the court adopted the Revocation Report, which mentioned\\n\\nthe mitigating factors that Sayer refers to, as findings of fact\\n\\nin support of the sentence that it would impose. Finally, the\\n\\ndistrict court even expressly mentioned the \\\"progress\\\" that Sayer\\n\\nachieved while on supervised release, but ultimately concluded\\n\\nthat it \\\"pale[d]\\\" compared to his harmful thinking and behavior.\\n\\nHence, it is evident that the district court considered all the\\n\\nfactors it was required to.\\n\\n In essence, then, Sayer's challenge is directed at the\\n\\nsentencing judge's weighing of the factors that affect sentencing.\\n\\nHe understands that the district judge should have given certain\\n\\nmitigating factors greater significance. However, although the\\n\\ndistrict court must consider a \\\"myriad of relevant factors,\\\" the\\n\\nweighing of those factors is \\\"within the court's informed\\n\\ndiscretion.\\\" Clogston, 662 F.3d at 593. Moreover, the reasons\\n\\ncited by the district court and described above, including Sayer's\\n\\nextensive criminal history and the seriousness of his offenses,\\n\\nhis proclivity upon release towards the type of conduct for which\\n\\n\\n -16-\\n\\fhe had been convicted, his unwillingness to accept responsibility,\\n\\nand the need to protect the public from further crimes, constitute\\n\\na \\\"plausible rationale\\\" for a \\\"defensible\\\" sentence. See Martin,\\n\\n520 F.3d at 91, 98. And while Sayer argues that the sentence\\n\\nimposed did not leave room for harsher sentences for those with\\n\\nhigher Criminal History Categories and more serious violations, it\\n\\nis evident from the hearing transcript that the sentencing judge\\n\\nconsidered Sayer's criminal history and the nature of his\\n\\nviolations to be serious enough to warrant the sentence imposed.\\n\\nSee Clogston, 662 F.3d at 592 (\\\"There is no one reasonable sentence\\n\\nin any given case but, rather, a universe of reasonable sentencing\\n\\noutcomes.\\\"). Thus, considering the totality of the circumstances,\\n\\nwe find the district court's sentence to be substantively\\n\\nreasonable and not an abuse of discretion. 11\\n\\n\\nC. Sayer's Additional Term of Supervised Release upon Revocation\\n\\n Finally, Sayer argues for the first time on appeal that\\n\\nthe district court erred by imposing a term of supervised release\\n\\nin addition to the statutory maximum term of imprisonment upon\\n\\nrevocation. He contends that because the court sentenced him to\\n\\n\\n11 We have reviewed the cases Sayer cited in his briefs and in a\\npost-argument letter submitted pursuant to Federal Rule of\\nAppellate Procedure 28(j), but they fail to persuade us to the\\ncontrary. They are either distinguishable, lacking a record from\\nwhich the appellate court could have deciphered a sentencing\\nrationale, or inapposite.\\n\\n\\n -17-\\n\\fthe statutory maximum imprisonment term on revocation, it could\\n\\nnot also impose an additional term of supervised release. He\\n\\nbases this argument on the Probation Officer's erroneous\\n\\nparaphrasing of U.S.S.G. § 7B1.3(g)(2) in the Revocation Report12\\n\\nand several cited cases that imposed a statutory maximum sentence\\n\\non revocation but no additional term of supervised release.\\n\\n The plain text of 18 U.S.C. § 3583(h) and U.S.S.G.\\n\\n§ 7B1.3(g)(2) negates Sayer's position. Section 3583(h)\\n\\nestablishes that:\\n\\n When a term of supervised release is revoked and the\\n defendant is required to serve a term of imprisonment,\\n the court may include a requirement that the defendant\\n be placed on a term of supervised release after\\n imprisonment. The length of such a term of supervised\\n release shall not exceed the term of supervised release\\n authorized by statute for the offense that resulted in\\n the original term of supervised release, less any term\\n of imprisonment that was imposed upon revocation of\\n supervised release.\\n\\n(Emphasis added). U.S.S.G. § 7B1.3(g)(2) basically mirrors the\\n\\nstatute. Here, Sayer does not dispute that the maximum supervised\\n\\nrelease term authorized for his original cyberstalking offense is\\n\\n\\n12 On page 5 of the Revocation Report, the Probation Officer\\nerroneously appears to suggest that supervised release can be\\nimposed upon revocation only if the term of imprisonment imposed\\nis \\\"less\\\" than the maximum term of imprisonment imposable upon\\nrevocation. Nevertheless, the Probation Officer correctly stated\\nthe calculation on the Revocation Report's page 4 when he explained\\nthat \\\"the term of supervised release that can be imposed upon\\nrevocation is 36 months, less any imprisonment imposed for this\\nrevocation.\\\"\\n\\n\\n -18-\\n\\fthirty-six months. According to Section 3583(h), the district\\n\\ncourt could impose a second supervised release term as long as it\\n\\ndid not exceed the term of supervised release authorized for the\\n\\nunderlying conviction (i.e., thirty-six months), less the term of\\n\\nimprisonment that was imposed upon revocation (i.e., twenty-four\\n\\nmonths). As thirty-six minus twenty-four equals twelve, simple\\n\\narithmetic reveals that the new twelve-month supervised release\\n\\nterm does not exceed the maximum allowed upon revocation.\\n\\n Finally, the fact that some district courts exercise\\n\\ntheir discretion to impose only the maximum statutory imprisonment\\n\\nterm upon revocation, without a new supervised release term,13 does\\n\\nnot affect the district court's authority here to impose the\\n\\ntwelve-month supervised release term upon revocation. Thus, Sayer\\n\\nhas not been able to show any error in the district court's\\n\\nimposition of his supervised release term on revocation.\\n\\n III. Conclusion\\n\\n For the reasons expounded above, Sayer's revocation\\n\\nsentence is affirmed.\\n\\n Affirmed.\\n\\n\\n\\n\\n13 See United States v. Márquez-García, 862 F.3d 143, 145 (1st\\nCir. 2017), United States v. Alejandro-Rosado, 878 F.3d 435, 438\\n(1st Cir. 2017), United States v. Soto-Soto, 855 F.3d 445, 448\\n(1st Cir. 2017).\\n\\n\\n -19-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370541/\", \"author_raw\": \"TORRUELLA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"TORRUELLA"},"judge3":{"kind":"string","value":"THOMPSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593288/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Shawn SAYER, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2065\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n SHAWN SAYER,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Jon D. Levy, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n William S. Maddox, on brief for appellant.\n Renée M. Bunker, Assistant United States Attorney, Appellate\nChief, and Halsey B. Frank, United States Attorney, on brief for\nappellee.\n\n\n\n February 22, 2018\n\f TORRUELLA, Circuit Judge. In 2012, appellant Shawn\n\nSayer (\"Sayer\") pled guilty to one count of cyberstalking in\n\nviolation of 18 U.S.C. §§ 2261A(2) and 2261(b)(5). He commenced\n\nhis supervised release term in 2016, but it was revoked in 2017\n\nbecause he violated some of his conditions. On appeal, Sayer\n\ncontends that the district court's upwardly-variant sentence\n\nfollowing revocation is procedurally and substantively\n\nunreasonable. Moreover, he challenges the district court's\n\nimposition of a supervised release term in addition to the\n\nstatutory maximum term of imprisonment upon revocation.1 After\n\ncareful review, we affirm.\n\n I. Background\n\n We briefly summarize the relevant facts and procedural\n\ncourse of this case.2\n\n After Jane Doe3 ended her relationship with Sayer in\n\nJanuary 2006, Sayer stalked and harassed her for various years,\n\n\n1 The maximum prison term that may be imposed following revocation\nis set forth at 18 U.S.C. § 3583(e)(3) and is based on the class\nof the original offense.\n2 We draw the uncontested facts underpinning Sayer's original\nsentence from this court's opinion affirming that sentence. See\nUnited States v. Sayer, 748 F.3d 425 (1st Cir. 2014). The facts\nregarding Sayer's conduct while on supervised release derive from\nthe Probation Office's Revocation Report, which the district court\nadopted in its entirety with no objection from Sayer to the\ninformation therein.\n3 As before, we refer to Sayer's victim as \"Jane Doe\" to preserve\n\n -2-\n\fcausing her to seek a protective order against him in state court.\n\nUnited States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014). In the\n\nfall of 2008, Sayer started using the internet to induce random\n\nthird parties to harass Jane Doe. Id. After several unknown,\n\n\"'dangerous'-looking men\" arrived at Doe's house in Maine in\n\nOctober 2008 \"seeking 'sexual entertainment,'\" she discovered an\n\nad in the \"casual encounters\" section of Craigslist that showed\n\npictures of her in lingerie, which Sayer had taken while they were\n\ndating. Id. The ad described a list of sexual acts she was\n\nsupposedly willing to perform and provided her address. Id. Jane\n\nDoe had not posted the ad, nor authorized Sayer to do so. Id.\n\n The unwanted visits from unknown men persisted until\n\nJane Doe moved to her aunt's house in Louisiana and changed her\n\nname, seeking to avoid Sayer's harassment. The visits stopped\n\nuntil August 2009, when, once again, an unknown man showed up at\n\nher aunt's home in Louisiana, referring to Doe by her new name,\n\nclaiming that he had met her over the internet, and seeking a\n\nsexual encounter. Id. Jane Doe later found: 1) videos of herself\n\nand Sayer engaged in sexual acts on various pornography websites\n\ndetailing her name and current Louisiana address; (2) a fraudulent\n\nFacebook account including sexually explicit pictures of her; and\n\n\nher privacy. Sayer, 748 F.3d at 428 n.1. For the same reason,\nwe will refer to Sayer's second victim as \"M.G.\"\n\n\n -3-\n\f(3) a fake account on another social network, Myspace, which\n\nprovided both her old and new names, her Louisiana address, and\n\nlinks to pornography sites hosting sex videos of her. Id. at 428-\n\n429. After police searched Sayer's home in June 2010, a forensic\n\nanalysis of his computer showed that between June and November\n\n2009, Sayer had created \"numerous fake profiles\" on Yahoo!\n\nMessenger using a variation of Jane Doe's name. Id. at 429. In\n\nmany cases, \"Sayer, posing as Jane Doe, chatted with men online\n\nand encouraged them to visit [her] at her home in Louisiana.\"4\n\nId.\n\n In 2012, Sayer pled guilty to cyberstalking. 5 The\n\ndistrict court imposed a prison term of sixty months, the statutory\n\nmaximum, to be followed by three years of supervised release.\n\n\n\n\n4 Jane Doe was forced to return to Maine in November 2009, as the\nmen that Sayer sent to the Louisiana residence scared her aunt and\ncousin, with whom she was staying. Id.\n5 The indictment encompassed conduct from \"about July 2009, the\nexact date being unknown, until about November 2009,\" and alleged\nthat the defendant:\n\n with the intent to injure, harass, and cause substantial\n emotional distress to a person in another state, namely,\n Louisiana, used facilities of interstate or foreign\n commerce, including electronic mail and internet\n websites, to engage in a course of conduct that caused\n substantial emotional distress to the victim and placed\n her in reasonable fear of death or serious bodily injury.\n\n\n -4-\n\f Sayer commenced his supervised release in February 2016.\n\nDuring the initial supervised release orientation, Sayer\n\nidentified several goals, including finding full-time employment,\n\nsaving money, and purchasing a truck. He worked in the school\n\nlunch program for the City of Portland while searching for\n\ncarpentry-related employment. 6 In May 2016, Sayer secured\n\nemployment with a construction company in the carpentry industry.\n\n In June 2016, the Probation Office filed a petition to\n\nmodify Sayer's supervised release conditions to add a requirement\n\nthat he participate in a Computer and Internet Monitoring Program\n\n(\"CIMP\"), which involved partial or full restriction of his use of\n\ncomputers and the internet and required him to submit to\n\nunannounced searches of his computer, storage media, and\n\nelectronic or internet-capable devices. Despite Sayer's\n\nopposition, the district court imposed the CIMP condition,\n\nexplaining that it had inadvertently omitted it at the time of\n\nSayer's original sentencing but that it was warranted considering\n\nthe \"nature and seriousness\" of Sayer's underlying offense.\n\n During his supervised release term, Sayer began a\n\nrelationship with M.G. On October 25, 2016, Sayer called the\n\n\n\n6 He secured this employment while serving the final part of his\ncustodial sentence (pre-release) in the Pharos House Residential\nReentry Center.\n\n\n -5-\n\fProbation Officer to inform that \"things [had gone] sour\" with\n\nM.G. While Sayer insisted that M.G. \"never explicitly asked him\n\nto not contact her,\" he acknowledged that she had blocked\n\ncommunications with him on Facebook and ignored multiple text\n\nmessages. The Probation Officer encouraged him to stop contacting\n\nM.G. During a meeting with Sayer days later, the Probation Officer\n\nbrought up Sayer's communications with M.G., emphasizing that\n\nSayer was \"exhibiting at risk communication that reached an\n\nobsessive level.\" The Probation Officer informed Sayer that his\n\ninternet access would be restricted for a while to allow the\n\nProbation Office to investigate the extent of his communication\n\nwith M.G.\n\n On November 18, 2016, M.G. denied any issues of\n\nharassment and said she and Sayer were \"working things out.\"\n\nHence, on November 29, 2016, the Probation Officer informed Sayer\n\nthat he would restore his internet access, based on the results of\n\nthe investigation. The Probation Officer later discovered that\n\nSayer continued to use the internet during his period of\n\nrestriction as the software installed by the Probation Office had\n\nfailed to block his access. When confronted, Sayer said that\n\nalthough he had felt \"shocked\" when he was able to access the\n\ninternet after being told he would not be able to, he just \"went\n\nalong with it.\"\n\n\n -6-\n\f In a meeting on January 4, 2017, Sayer and the Probation\n\nOfficer once again discussed Sayer's communications with M.G., as\n\nshe had recently requested he \"leave her alone.\" Sayer insisted\n\nthat his multiple messages were \"his way of 'helping' her through\n\nperiods of depression.\" He seemed \"very bothered\" by the breakdown\n\nof his relationship and expressed concern for an iPhone and iPad\n\nthat he had let M.G. borrow and she had not returned. The\n\nProbation Officer suggested a mental health assessment, but Sayer\n\nsaid he was \"not really that upset.\" During this meeting, the\n\nProbation Officer also discussed nude photos of M.G. in Sayer's\n\ncellphone, some in which M.G. was \"not looking at the camera and\n\nit [was] unclear how aware she [was].\" The Probation Officer\n\ninstructed Sayer to inform M.G. that his cellphone was monitored\n\nand other people had access to her photos.\n\n In mid-January 2017, the Probation Office discovered a\n\nGPS tracker application in Sayer's cellphone, which Sayer admitted\n\nto connecting to the iPad he had lent M.G.7 The following month,\n\nSayer scheduled a mental health assessment as instructed by the\n\nProbation Office, which he referred to as \"ridiculous.\"\n\n\n7 Sayer alleged that he installed the tracker because he wanted\nto know whether M.G. had mailed his iPad back. He provided\nevidence that it had been disabled. From the Revocation Report,\nit is unclear whether Sayer had previously disabled the tracker of\nhis own volition, or whether he had only done so after prodding by\nthe Probation Office.\n\n\n -7-\n\f In late February 2017, M.G. sought a no contact order\n\nregarding Sayer from the Ellsworth, Maine Police Department, and\n\nas a result Sayer was verbally instructed to cease all\n\ncommunications with her. On May 8, 2017, M.G. contacted the\n\nProbation Office to inform that Sayer had been obsessively\n\ncontacting her via phone and email. She reported that he called\n\nfrom different numbers and was able to mask his phone number to\n\nappear as though another contact was calling. She also reported\n\nhe emailed her from multiple accounts.\n\n On May 23, 2017, the Probation Office filed a petition\n\nto revoke Sayer's supervised release, alleging that Sayer had\n\nviolated the CIMP condition by opening and using a series of online\n\naccounts without prior permission from Probation. Sayer waived\n\nthe preliminary revocation hearing, and the district court\n\nscheduled the final revocation hearing for October 24, 2017. On\n\nthat day, Sayer waived the right to a hearing and admitted to\n\ncommitting the violations. Specifically, Sayer admitted to: (1)\n\ninstalling twenty-two \"spoofing\" applications on his phone, which\n\nenabled him to place outgoing phone calls under the guise of a\n\ndifferent phone number, to call M.G.; (2) downloading twenty\n\nunapproved messenger applications; (3) opening 4 different email\n\naccounts, 3 of which were never reported to, nor approved by, the\n\nProbation Office, and were used to send multiple messages to M.G.;\n\n\n -8-\n\fand (4) creating two dating profiles appearing to resemble M.G.,\n\nseeking to pose as a representation of her to find out if she was\n\ndating other men.\n\n Sayer also accepted the Probation Officer's Revocation\n\nReport without any objection to its content, except for a complaint\n\nthat it omitted some \"mutual\" communications between M.G. and him.\n\nWithout any further objection from Sayer, the district court\n\nadopted the Revocation Report in its entirety as findings in\n\nsupport of the revocation sentence. While the Guidelines\n\nSentencing Range was five to eleven months, the court ultimately\n\nvaried upwards to impose a sentence of a twenty-four-month prison\n\nterm and twelve months of supervised release.\n\n II. Discussion\n\n \"Appellate review of federal criminal sentences is\n\ncharacterized by a frank recognition of the substantial discretion\n\nvested in a sentencing court.\" United States v. Flores-Machicote,\n\n706 F.3d 16, 20 (1st Cir 2013). We review sentencing decisions\n\nunder the United States Sentencing Guidelines (\"U.S.S.G.\") for\n\n\"reasonableness, regardless of whether they fall inside or outside\n\nthe applicable [Guidelines Sentencing Range].\" United States v.\n\nTurbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our \"review\n\nprocess is bifurcated: we first determine whether the sentence\n\nimposed is procedurally reasonable and then determine whether it\n\n\n -9-\n\fis substantively reasonable.\" United States v. Clogston, 662 F.3d\n\n588, 590 (1st Cir. 2011).\n\nA. Procedural Reasonableness of Sayer's Sentence\n\n We must ensure that the district court did not commit\n\nany \"significant procedural error\" to arrive at a sentence. Gall\n\nv. United States, 552 U.S. 38, 51 (2007). Examples of this include\n\n\"failing to calculate (or improperly calculating) the [GSR],\n\ntreating the Guidelines as mandatory, failing to consider the [18\n\nU.S.C.] § 3553(a) factors, selecting a sentence based on clearly\n\nerroneous facts, or failing to adequately explain the chosen\n\nsentence-including an explanation for any deviation from the\n\nGuidelines range.\" Flores-Machicote, 706 F.3d at 20 (alterations\n\nin original) (quoting Gall, 552 U.S. at 51).\n\n Preserved claims of sentencing error are generally\n\nreviewed for abuse of discretion. United States v. Márquez-\n\nGarcía, 862 F.3d 143, 145 (1st Cir. 2017). However, when a\n\ndefendant fails to contemporaneously object to the procedural\n\nreasonableness of a court's sentencing determination, we review\n\nfor plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,\n\n226 (1st Cir. 2015). Under the plain error standard, \"an appellant\n\nmust show: '(1) that an error occurred (2) which was clear or\n\nobvious and which not only (3) affected the [appellant's]\n\nsubstantial rights, but also (4) seriously impaired the fairness,\n\n\n -10-\n\fintegrity, or public reputation of judicial proceedings.'\"\n\nMárquez-García, 862 F.3d at 145 (alterations in original)(quoting\n\nUnited States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Sayer\n\ndid not raise his procedural reasonableness argument before the\n\nsentencing court, so we review for plain error.8 See United States\n\nv. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).\n\n Sayer claims that the district court procedurally erred\n\nby failing to adequately explain the rationale for its chosen\n\nsentence. The revocation hearing transcript, however, refutes\n\nSayer's argument. The district court's remarks at sentencing made\n\nclear that it considered the factors required by 18 U.S.C.\n\n§ 3583(e), weighed them, and used its discretion to arrive at a\n\nreasoned, defensible decision. The court primarily stressed three\n\nfactors in support of its variant sentence: (1) Sayer's criminal\n\n\n\n8 Sayer argues that he properly preserved all of his arguments on\nappeal. As the transcript of the revocation hearing reflects,\nSayer's attorney stated: \"I would like to object to the upward\nvariance. I think that is necessary to preserve all of Mr. Sayer's\nappeal rights.\" This is insufficient. \"A general objection to\nthe procedural reasonableness of a sentence is not sufficient to\npreserve a specific challenge to any of the sentencing court's\nparticularized findings. . . . [A]n objection must be sufficiently\nspecific to call the district court's attention to the asserted\nerror.\" United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st\nCir. 2017); see also United States v. Sosa-González, 900 F.3d 1,\n4 (1st Cir. 2018) (finding \"we object as to the sentence because\nwe believe it is unreasonable\" to be insufficient to preserve a\nprocedural objection). In any event, even reviewed under the\nabuse of discretion standard, Sayer cannot meet his burden.\n\n\n -11-\n\fhistory and the similarity of Sayer's conduct on supervised release\n\nto the conduct for which he had been convicted; (2) Sayer's\n\nunwillingness to accept responsibility; and (3) the need to protect\n\nthe public from further crimes.\n\n First, the court expressed that Sayer's behavior while\n\non supervised release \"demonstrates that he has continued with the\n\nsame sort of resistance to authority and compulsive thinking that\n\nresulted in his underlying cyberstalking conviction.\" It\n\nexplained that although Sayer's conduct while on supervision did\n\nnot \"rise to the level\" of the conduct for which he was originally\n\nconvicted, \"it certainly hearken[ed] toward it.\" Moreover, the\n\ncourt noted that Sayer had a Criminal History Category of III and\n\nemphasized that \"more important than that number is the nature of\n\nhis history,\" which is a:\n\n chronic pattern of stalking . . . and behavior involving\n violations of protective orders and bail orders which\n . . . [all] paint[] a picture . . . of a defendant who\n is absolutely resistant to court order, court\n supervision and respecting the rule of law as it pertains\n to . . . employing cell phones and the Internet to\n interfere with others.\n\n As to Sayer's unwillingness to accept responsibility,\n\nthe court emphasized that Sayer had described the Probation\n\nOfficer's order that he receive a mental health assessment as\n\n\"ridiculous\" and that \"today even I hear him blaming his\n\nrelationship with M.G. for his problems . . . as opposed to\n\n\n -12-\n\faccepting full responsibility.\" Moreover, the court stressed the\n\neffect of Sayer's conduct on others and explained: \"[t]o some\n\ndegree the analogy to a drug addict is not appropriate. This is\n\nnot a situation where he is using illegal substances to his own\n\ndetriment only. This is a situation in which his behavior harms\n\nothers.\" Thus, the court ultimately concluded that: \"an upward\n\nvariant sentence is essential, because I have before me a defendant\n\nwho cannot control his behavior after all this history and for\n\nthat reason poses what I regard to be a substantial risk of harm\n\nto the public.\"\n\n This explanation was adequate, more than enough to\n\ndefeat Sayer's procedural challenge under both the plain error and\n\nabuse of discretion standards. Sentencing courts need not recount\n\nevery detail of their decisional processes; identification of the\n\n\"main factors behind [the] decision\" is enough. United States v.\n\nVargas-García, 794 F.3d 162, 166 (1st Cir. 2015). And although\n\nSayer contends that the court did not sufficiently explain why it\n\nrejected his arguments for a lower prison term, courts are not\n\nrequired to specifically explain why they rejected a particular\n\ndefense argument in favor of a lower sentence. See id. at 167\n\n(holding that while a \"sentencing court may have a duty to explain\n\nwhy it chose a particular sentence, it has 'no corollary duty to\n\n\n\n\n -13-\n\fexplain why it eschewed other suggested sentences'\" (quoting\n\nUnited States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014))).\n\n In any case, the court did explain that although it had\n\nconsidered Sayer's progress while on supervised release, it\n\n\"pale[d] next to the continued absence of insight on his part as\n\nto the type of thinking and the type of behavior which is unlawful\n\nand is harmful, and it's harmful to other people, not just to him.\"\n\nHence, the district court's explanation of its variant sentence\n\nwas sufficient, and we discern no error, much less plain error.\n\nB. Substantive Reasonableness of Sayer's Sentence9\n\n \"[I]f the sentence is procedurally sound, we then ask\n\nwhether the sentence is substantively reasonable.\" United States\n\nv. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). A sentence is\n\nsubstantively reasonable so long as the sentencing court has\n\nprovided a \"plausible sentencing rationale\" and reached a\n\n\"defensible result.\" United States v. Martin, 520 F.3d 87, 96\n\n(1st Cir. 2008). In assessing the substantive reasonableness of\n\na sentence, this court should \"take into account the totality of\n\nthe circumstances, including the extent of any variance from the\n\nGuidelines [Sentencing] [R]ange.\" United States v. Contreras-\n\nDelgado, 913 F.3d 232, 243 (1st Cir. 2019) (quoting Gall, 552 U.S.\n\n\n9 Sayer claims this issue should be reviewed for abuse of\ndiscretion, and the government does not contest it.\n\n\n -14-\n\fat 51). \"[T]he greater the variance, the more compelling the\n\nsentencing court's justification must be.\" United States v.\n\nVázquez-Vázquez, 852 F.3d 62, 67 (1st Cir. 2017) (quoting United\n\nStates v. Guzmán-Fernández, 824 F.3d 173, 178 (1st Cir. 2016)).\n\n Sayer's violation while on supervised release was a\n\nGrade C violation.10 Because Sayer had a Criminal History Category\n\nof III, the Guidelines Sentencing Range of imprisonment was five\n\nto eleven months. By imposing an imprisonment term of twenty-four\n\nmonths on revocation, the district court varied upwards by thirteen\n\nmonths. Sayer argues that his sentence is longer than necessary,\n\nand therefore substantially unreasonable because the court: (1)\n\n\"failed to calibrate the decisional scales\" by not accounting for\n\n\"obvious mitigating factors\"; and (2) left no room for harsher\n\nsentences for those with higher Criminal History Categories and\n\nmore serious violations.\n\n Sayer's arguments are without merit. To begin with, the\n\ndistrict court clearly stated that it considered the sentencing\n\nfactors set forth in 18 U.S.C. § 3553(a), including \"Sayer's\n\n\n\n10 The Sentencing Commission's policy statement divides conduct\nthat violates conditions of supervision into three categories:\nGrade A, B, and C violations. U.S.S.G. § 7B1.1(a). There are two\ntypes of Grade C violations: \"(A) a federal, state, or local\noffense punishable by a term of imprisonment of one year or less;\nor (B) a violation of any other condition of supervision.\"\nU.S.S.G. § 7B1.1(a)(3)(emphasis added).\n\n\n -15-\n\fpersonal history and characteristics\" and \"the need for the\n\nsentence imposed to . . . avoid unwanted sentencing disparities.\"\n\nSee United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir.\n\n2014) (noting that a judge's statement that he has considered all\n\nof the § 3553(a) factors is entitled to significant weight).\n\nMoreover, the court adopted the Revocation Report, which mentioned\n\nthe mitigating factors that Sayer refers to, as findings of fact\n\nin support of the sentence that it would impose. Finally, the\n\ndistrict court even expressly mentioned the \"progress\" that Sayer\n\nachieved while on supervised release, but ultimately concluded\n\nthat it \"pale[d]\" compared to his harmful thinking and behavior.\n\nHence, it is evident that the district court considered all the\n\nfactors it was required to.\n\n In essence, then, Sayer's challenge is directed at the\n\nsentencing judge's weighing of the factors that affect sentencing.\n\nHe understands that the district judge should have given certain\n\nmitigating factors greater significance. However, although the\n\ndistrict court must consider a \"myriad of relevant factors,\" the\n\nweighing of those factors is \"within the court's informed\n\ndiscretion.\" Clogston, 662 F.3d at 593. Moreover, the reasons\n\ncited by the district court and described above, including Sayer's\n\nextensive criminal history and the seriousness of his offenses,\n\nhis proclivity upon release towards the type of conduct for which\n\n\n -16-\n\fhe had been convicted, his unwillingness to accept responsibility,\n\nand the need to protect the public from further crimes, constitute\n\na \"plausible rationale\" for a \"defensible\" sentence. See Martin,\n\n520 F.3d at 91, 98. And while Sayer argues that the sentence\n\nimposed did not leave room for harsher sentences for those with\n\nhigher Criminal History Categories and more serious violations, it\n\nis evident from the hearing transcript that the sentencing judge\n\nconsidered Sayer's criminal history and the nature of his\n\nviolations to be serious enough to warrant the sentence imposed.\n\nSee Clogston, 662 F.3d at 592 (\"There is no one reasonable sentence\n\nin any given case but, rather, a universe of reasonable sentencing\n\noutcomes.\"). Thus, considering the totality of the circumstances,\n\nwe find the district court's sentence to be substantively\n\nreasonable and not an abuse of discretion. 11\n\n\nC. Sayer's Additional Term of Supervised Release upon Revocation\n\n Finally, Sayer argues for the first time on appeal that\n\nthe district court erred by imposing a term of supervised release\n\nin addition to the statutory maximum term of imprisonment upon\n\nrevocation. He contends that because the court sentenced him to\n\n\n11 We have reviewed the cases Sayer cited in his briefs and in a\npost-argument letter submitted pursuant to Federal Rule of\nAppellate Procedure 28(j), but they fail to persuade us to the\ncontrary. They are either distinguishable, lacking a record from\nwhich the appellate court could have deciphered a sentencing\nrationale, or inapposite.\n\n\n -17-\n\fthe statutory maximum imprisonment term on revocation, it could\n\nnot also impose an additional term of supervised release. He\n\nbases this argument on the Probation Officer's erroneous\n\nparaphrasing of U.S.S.G. § 7B1.3(g)(2) in the Revocation Report12\n\nand several cited cases that imposed a statutory maximum sentence\n\non revocation but no additional term of supervised release.\n\n The plain text of 18 U.S.C. § 3583(h) and U.S.S.G.\n\n§ 7B1.3(g)(2) negates Sayer's position. Section 3583(h)\n\nestablishes that:\n\n When a term of supervised release is revoked and the\n defendant is required to serve a term of imprisonment,\n the court may include a requirement that the defendant\n be placed on a term of supervised release after\n imprisonment. The length of such a term of supervised\n release shall not exceed the term of supervised release\n authorized by statute for the offense that resulted in\n the original term of supervised release, less any term\n of imprisonment that was imposed upon revocation of\n supervised release.\n\n(Emphasis added). U.S.S.G. § 7B1.3(g)(2) basically mirrors the\n\nstatute. Here, Sayer does not dispute that the maximum supervised\n\nrelease term authorized for his original cyberstalking offense is\n\n\n12 On page 5 of the Revocation Report, the Probation Officer\nerroneously appears to suggest that supervised release can be\nimposed upon revocation only if the term of imprisonment imposed\nis \"less\" than the maximum term of imprisonment imposable upon\nrevocation. Nevertheless, the Probation Officer correctly stated\nthe calculation on the Revocation Report's page 4 when he explained\nthat \"the term of supervised release that can be imposed upon\nrevocation is 36 months, less any imprisonment imposed for this\nrevocation.\"\n\n\n -18-\n\fthirty-six months. According to Section 3583(h), the district\n\ncourt could impose a second supervised release term as long as it\n\ndid not exceed the term of supervised release authorized for the\n\nunderlying conviction (i.e., thirty-six months), less the term of\n\nimprisonment that was imposed upon revocation (i.e., twenty-four\n\nmonths). As thirty-six minus twenty-four equals twelve, simple\n\narithmetic reveals that the new twelve-month supervised release\n\nterm does not exceed the maximum allowed upon revocation.\n\n Finally, the fact that some district courts exercise\n\ntheir discretion to impose only the maximum statutory imprisonment\n\nterm upon revocation, without a new supervised release term,13 does\n\nnot affect the district court's authority here to impose the\n\ntwelve-month supervised release term upon revocation. Thus, Sayer\n\nhas not been able to show any error in the district court's\n\nimposition of his supervised release term on revocation.\n\n III. Conclusion\n\n For the reasons expounded above, Sayer's revocation\n\nsentence is affirmed.\n\n Affirmed.\n\n\n\n\n13 See United States v. Márquez-García, 862 F.3d 143, 145 (1st\nCir. 2017), United States v. Alejandro-Rosado, 878 F.3d 435, 438\n(1st Cir. 2017), United States v. Soto-Soto, 855 F.3d 445, 448\n(1st Cir. 2017).\n\n\n -19-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Shawn SAYER, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 17-2065\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n SHAWN SAYER,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n\\n [Hon. Jon D. Levy, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Thompson, Circuit Judges.\\n\\n\\n William S. Maddox, on brief for appellant.\\n Renée M. Bunker, Assistant United States Attorney, Appellate\\nChief, and Halsey B. Frank, United States Attorney, on brief for\\nappellee.\\n\\n\\n\\n February 22, 2018\\n\\f TORRUELLA, Circuit Judge. In 2012, appellant Shawn\\n\\nSayer (\\\"Sayer\\\") pled guilty to one count of cyberstalking in\\n\\nviolation of 18 U.S.C. §§ 2261A(2) and 2261(b)(5). He commenced\\n\\nhis supervised release term in 2016, but it was revoked in 2017\\n\\nbecause he violated some of his conditions. On appeal, Sayer\\n\\ncontends that the district court's upwardly-variant sentence\\n\\nfollowing revocation is procedurally and substantively\\n\\nunreasonable. Moreover, he challenges the district court's\\n\\nimposition of a supervised release term in addition to the\\n\\nstatutory maximum term of imprisonment upon revocation.1 After\\n\\ncareful review, we affirm.\\n\\n I. Background\\n\\n We briefly summarize the relevant facts and procedural\\n\\ncourse of this case.2\\n\\n After Jane Doe3 ended her relationship with Sayer in\\n\\nJanuary 2006, Sayer stalked and harassed her for various years,\\n\\n\\n1 The maximum prison term that may be imposed following revocation\\nis set forth at 18 U.S.C. § 3583(e)(3) and is based on the class\\nof the original offense.\\n2 We draw the uncontested facts underpinning Sayer's original\\nsentence from this court's opinion affirming that sentence. See\\nUnited States v. Sayer, 748 F.3d 425 (1st Cir. 2014). The facts\\nregarding Sayer's conduct while on supervised release derive from\\nthe Probation Office's Revocation Report, which the district court\\nadopted in its entirety with no objection from Sayer to the\\ninformation therein.\\n3 As before, we refer to Sayer's victim as \\\"Jane Doe\\\" to preserve\\n\\n -2-\\n\\fcausing her to seek a protective order against him in state court.\\n\\nUnited States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014). In the\\n\\nfall of 2008, Sayer started using the internet to induce random\\n\\nthird parties to harass Jane Doe. Id. After several unknown,\\n\\n\\\"'dangerous'-looking men\\\" arrived at Doe's house in Maine in\\n\\nOctober 2008 \\\"seeking 'sexual entertainment,'\\\" she discovered an\\n\\nad in the \\\"casual encounters\\\" section of Craigslist that showed\\n\\npictures of her in lingerie, which Sayer had taken while they were\\n\\ndating. Id. The ad described a list of sexual acts she was\\n\\nsupposedly willing to perform and provided her address. Id. Jane\\n\\nDoe had not posted the ad, nor authorized Sayer to do so. Id.\\n\\n The unwanted visits from unknown men persisted until\\n\\nJane Doe moved to her aunt's house in Louisiana and changed her\\n\\nname, seeking to avoid Sayer's harassment. The visits stopped\\n\\nuntil August 2009, when, once again, an unknown man showed up at\\n\\nher aunt's home in Louisiana, referring to Doe by her new name,\\n\\nclaiming that he had met her over the internet, and seeking a\\n\\nsexual encounter. Id. Jane Doe later found: 1) videos of herself\\n\\nand Sayer engaged in sexual acts on various pornography websites\\n\\ndetailing her name and current Louisiana address; (2) a fraudulent\\n\\nFacebook account including sexually explicit pictures of her; and\\n\\n\\nher privacy. Sayer, 748 F.3d at 428 n.1. For the same reason,\\nwe will refer to Sayer's second victim as \\\"M.G.\\\"\\n\\n\\n -3-\\n\\f(3) a fake account on another social network, Myspace, which\\n\\nprovided both her old and new names, her Louisiana address, and\\n\\nlinks to pornography sites hosting sex videos of her. Id. at 428-\\n\\n429. After police searched Sayer's home in June 2010, a forensic\\n\\nanalysis of his computer showed that between June and November\\n\\n2009, Sayer had created \\\"numerous fake profiles\\\" on Yahoo!\\n\\nMessenger using a variation of Jane Doe's name. Id. at 429. In\\n\\nmany cases, \\\"Sayer, posing as Jane Doe, chatted with men online\\n\\nand encouraged them to visit [her] at her home in Louisiana.\\\"4\\n\\nId.\\n\\n In 2012, Sayer pled guilty to cyberstalking. 5 The\\n\\ndistrict court imposed a prison term of sixty months, the statutory\\n\\nmaximum, to be followed by three years of supervised release.\\n\\n\\n\\n\\n4 Jane Doe was forced to return to Maine in November 2009, as the\\nmen that Sayer sent to the Louisiana residence scared her aunt and\\ncousin, with whom she was staying. Id.\\n5 The indictment encompassed conduct from \\\"about July 2009, the\\nexact date being unknown, until about November 2009,\\\" and alleged\\nthat the defendant:\\n\\n with the intent to injure, harass, and cause substantial\\n emotional distress to a person in another state, namely,\\n Louisiana, used facilities of interstate or foreign\\n commerce, including electronic mail and internet\\n websites, to engage in a course of conduct that caused\\n substantial emotional distress to the victim and placed\\n her in reasonable fear of death or serious bodily injury.\\n\\n\\n -4-\\n\\f Sayer commenced his supervised release in February 2016.\\n\\nDuring the initial supervised release orientation, Sayer\\n\\nidentified several goals, including finding full-time employment,\\n\\nsaving money, and purchasing a truck. He worked in the school\\n\\nlunch program for the City of Portland while searching for\\n\\ncarpentry-related employment. 6 In May 2016, Sayer secured\\n\\nemployment with a construction company in the carpentry industry.\\n\\n In June 2016, the Probation Office filed a petition to\\n\\nmodify Sayer's supervised release conditions to add a requirement\\n\\nthat he participate in a Computer and Internet Monitoring Program\\n\\n(\\\"CIMP\\\"), which involved partial or full restriction of his use of\\n\\ncomputers and the internet and required him to submit to\\n\\nunannounced searches of his computer, storage media, and\\n\\nelectronic or internet-capable devices. Despite Sayer's\\n\\nopposition, the district court imposed the CIMP condition,\\n\\nexplaining that it had inadvertently omitted it at the time of\\n\\nSayer's original sentencing but that it was warranted considering\\n\\nthe \\\"nature and seriousness\\\" of Sayer's underlying offense.\\n\\n During his supervised release term, Sayer began a\\n\\nrelationship with M.G. On October 25, 2016, Sayer called the\\n\\n\\n\\n6 He secured this employment while serving the final part of his\\ncustodial sentence (pre-release) in the Pharos House Residential\\nReentry Center.\\n\\n\\n -5-\\n\\fProbation Officer to inform that \\\"things [had gone] sour\\\" with\\n\\nM.G. While Sayer insisted that M.G. \\\"never explicitly asked him\\n\\nto not contact her,\\\" he acknowledged that she had blocked\\n\\ncommunications with him on Facebook and ignored multiple text\\n\\nmessages. The Probation Officer encouraged him to stop contacting\\n\\nM.G. During a meeting with Sayer days later, the Probation Officer\\n\\nbrought up Sayer's communications with M.G., emphasizing that\\n\\nSayer was \\\"exhibiting at risk communication that reached an\\n\\nobsessive level.\\\" The Probation Officer informed Sayer that his\\n\\ninternet access would be restricted for a while to allow the\\n\\nProbation Office to investigate the extent of his communication\\n\\nwith M.G.\\n\\n On November 18, 2016, M.G. denied any issues of\\n\\nharassment and said she and Sayer were \\\"working things out.\\\"\\n\\nHence, on November 29, 2016, the Probation Officer informed Sayer\\n\\nthat he would restore his internet access, based on the results of\\n\\nthe investigation. The Probation Officer later discovered that\\n\\nSayer continued to use the internet during his period of\\n\\nrestriction as the software installed by the Probation Office had\\n\\nfailed to block his access. When confronted, Sayer said that\\n\\nalthough he had felt \\\"shocked\\\" when he was able to access the\\n\\ninternet after being told he would not be able to, he just \\\"went\\n\\nalong with it.\\\"\\n\\n\\n -6-\\n\\f In a meeting on January 4, 2017, Sayer and the Probation\\n\\nOfficer once again discussed Sayer's communications with M.G., as\\n\\nshe had recently requested he \\\"leave her alone.\\\" Sayer insisted\\n\\nthat his multiple messages were \\\"his way of 'helping' her through\\n\\nperiods of depression.\\\" He seemed \\\"very bothered\\\" by the breakdown\\n\\nof his relationship and expressed concern for an iPhone and iPad\\n\\nthat he had let M.G. borrow and she had not returned. The\\n\\nProbation Officer suggested a mental health assessment, but Sayer\\n\\nsaid he was \\\"not really that upset.\\\" During this meeting, the\\n\\nProbation Officer also discussed nude photos of M.G. in Sayer's\\n\\ncellphone, some in which M.G. was \\\"not looking at the camera and\\n\\nit [was] unclear how aware she [was].\\\" The Probation Officer\\n\\ninstructed Sayer to inform M.G. that his cellphone was monitored\\n\\nand other people had access to her photos.\\n\\n In mid-January 2017, the Probation Office discovered a\\n\\nGPS tracker application in Sayer's cellphone, which Sayer admitted\\n\\nto connecting to the iPad he had lent M.G.7 The following month,\\n\\nSayer scheduled a mental health assessment as instructed by the\\n\\nProbation Office, which he referred to as \\\"ridiculous.\\\"\\n\\n\\n7 Sayer alleged that he installed the tracker because he wanted\\nto know whether M.G. had mailed his iPad back. He provided\\nevidence that it had been disabled. From the Revocation Report,\\nit is unclear whether Sayer had previously disabled the tracker of\\nhis own volition, or whether he had only done so after prodding by\\nthe Probation Office.\\n\\n\\n -7-\\n\\f In late February 2017, M.G. sought a no contact order\\n\\nregarding Sayer from the Ellsworth, Maine Police Department, and\\n\\nas a result Sayer was verbally instructed to cease all\\n\\ncommunications with her. On May 8, 2017, M.G. contacted the\\n\\nProbation Office to inform that Sayer had been obsessively\\n\\ncontacting her via phone and email. She reported that he called\\n\\nfrom different numbers and was able to mask his phone number to\\n\\nappear as though another contact was calling. She also reported\\n\\nhe emailed her from multiple accounts.\\n\\n On May 23, 2017, the Probation Office filed a petition\\n\\nto revoke Sayer's supervised release, alleging that Sayer had\\n\\nviolated the CIMP condition by opening and using a series of online\\n\\naccounts without prior permission from Probation. Sayer waived\\n\\nthe preliminary revocation hearing, and the district court\\n\\nscheduled the final revocation hearing for October 24, 2017. On\\n\\nthat day, Sayer waived the right to a hearing and admitted to\\n\\ncommitting the violations. Specifically, Sayer admitted to: (1)\\n\\ninstalling twenty-two \\\"spoofing\\\" applications on his phone, which\\n\\nenabled him to place outgoing phone calls under the guise of a\\n\\ndifferent phone number, to call M.G.; (2) downloading twenty\\n\\nunapproved messenger applications; (3) opening 4 different email\\n\\naccounts, 3 of which were never reported to, nor approved by, the\\n\\nProbation Office, and were used to send multiple messages to M.G.;\\n\\n\\n -8-\\n\\fand (4) creating two dating profiles appearing to resemble M.G.,\\n\\nseeking to pose as a representation of her to find out if she was\\n\\ndating other men.\\n\\n Sayer also accepted the Probation Officer's Revocation\\n\\nReport without any objection to its content, except for a complaint\\n\\nthat it omitted some \\\"mutual\\\" communications between M.G. and him.\\n\\nWithout any further objection from Sayer, the district court\\n\\nadopted the Revocation Report in its entirety as findings in\\n\\nsupport of the revocation sentence. While the Guidelines\\n\\nSentencing Range was five to eleven months, the court ultimately\\n\\nvaried upwards to impose a sentence of a twenty-four-month prison\\n\\nterm and twelve months of supervised release.\\n\\n II. Discussion\\n\\n \\\"Appellate review of federal criminal sentences is\\n\\ncharacterized by a frank recognition of the substantial discretion\\n\\nvested in a sentencing court.\\\" United States v. Flores-Machicote,\\n\\n706 F.3d 16, 20 (1st Cir 2013). We review sentencing decisions\\n\\nunder the United States Sentencing Guidelines (\\\"U.S.S.G.\\\") for\\n\\n\\\"reasonableness, regardless of whether they fall inside or outside\\n\\nthe applicable [Guidelines Sentencing Range].\\\" United States v.\\n\\nTurbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our \\\"review\\n\\nprocess is bifurcated: we first determine whether the sentence\\n\\nimposed is procedurally reasonable and then determine whether it\\n\\n\\n -9-\\n\\fis substantively reasonable.\\\" United States v. Clogston, 662 F.3d\\n\\n588, 590 (1st Cir. 2011).\\n\\nA. Procedural Reasonableness of Sayer's Sentence\\n\\n We must ensure that the district court did not commit\\n\\nany \\\"significant procedural error\\\" to arrive at a sentence. Gall\\n\\nv. United States, 552 U.S. 38, 51 (2007). Examples of this include\\n\\n\\\"failing to calculate (or improperly calculating) the [GSR],\\n\\ntreating the Guidelines as mandatory, failing to consider the [18\\n\\nU.S.C.] § 3553(a) factors, selecting a sentence based on clearly\\n\\nerroneous facts, or failing to adequately explain the chosen\\n\\nsentence-including an explanation for any deviation from the\\n\\nGuidelines range.\\\" Flores-Machicote, 706 F.3d at 20 (alterations\\n\\nin original) (quoting Gall, 552 U.S. at 51).\\n\\n Preserved claims of sentencing error are generally\\n\\nreviewed for abuse of discretion. United States v. Márquez-\\n\\nGarcía, 862 F.3d 143, 145 (1st Cir. 2017). However, when a\\n\\ndefendant fails to contemporaneously object to the procedural\\n\\nreasonableness of a court's sentencing determination, we review\\n\\nfor plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,\\n\\n226 (1st Cir. 2015). Under the plain error standard, \\\"an appellant\\n\\nmust show: '(1) that an error occurred (2) which was clear or\\n\\nobvious and which not only (3) affected the [appellant's]\\n\\nsubstantial rights, but also (4) seriously impaired the fairness,\\n\\n\\n -10-\\n\\fintegrity, or public reputation of judicial proceedings.'\\\"\\n\\nMárquez-García, 862 F.3d at 145 (alterations in original)(quoting\\n\\nUnited States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Sayer\\n\\ndid not raise his procedural reasonableness argument before the\\n\\nsentencing court, so we review for plain error.8 See United States\\n\\nv. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).\\n\\n Sayer claims that the district court procedurally erred\\n\\nby failing to adequately explain the rationale for its chosen\\n\\nsentence. The revocation hearing transcript, however, refutes\\n\\nSayer's argument. The district court's remarks at sentencing made\\n\\nclear that it considered the factors required by 18 U.S.C.\\n\\n§ 3583(e), weighed them, and used its discretion to arrive at a\\n\\nreasoned, defensible decision. The court primarily stressed three\\n\\nfactors in support of its variant sentence: (1) Sayer's criminal\\n\\n\\n\\n8 Sayer argues that he properly preserved all of his arguments on\\nappeal. As the transcript of the revocation hearing reflects,\\nSayer's attorney stated: \\\"I would like to object to the upward\\nvariance. I think that is necessary to preserve all of Mr. Sayer's\\nappeal rights.\\\" This is insufficient. \\\"A general objection to\\nthe procedural reasonableness of a sentence is not sufficient to\\npreserve a specific challenge to any of the sentencing court's\\nparticularized findings. . . . [A]n objection must be sufficiently\\nspecific to call the district court's attention to the asserted\\nerror.\\\" United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st\\nCir. 2017); see also United States v. Sosa-González, 900 F.3d 1,\\n4 (1st Cir. 2018) (finding \\\"we object as to the sentence because\\nwe believe it is unreasonable\\\" to be insufficient to preserve a\\nprocedural objection). In any event, even reviewed under the\\nabuse of discretion standard, Sayer cannot meet his burden.\\n\\n\\n -11-\\n\\fhistory and the similarity of Sayer's conduct on supervised release\\n\\nto the conduct for which he had been convicted; (2) Sayer's\\n\\nunwillingness to accept responsibility; and (3) the need to protect\\n\\nthe public from further crimes.\\n\\n First, the court expressed that Sayer's behavior while\\n\\non supervised release \\\"demonstrates that he has continued with the\\n\\nsame sort of resistance to authority and compulsive thinking that\\n\\nresulted in his underlying cyberstalking conviction.\\\" It\\n\\nexplained that although Sayer's conduct while on supervision did\\n\\nnot \\\"rise to the level\\\" of the conduct for which he was originally\\n\\nconvicted, \\\"it certainly hearken[ed] toward it.\\\" Moreover, the\\n\\ncourt noted that Sayer had a Criminal History Category of III and\\n\\nemphasized that \\\"more important than that number is the nature of\\n\\nhis history,\\\" which is a:\\n\\n chronic pattern of stalking . . . and behavior involving\\n violations of protective orders and bail orders which\\n . . . [all] paint[] a picture . . . of a defendant who\\n is absolutely resistant to court order, court\\n supervision and respecting the rule of law as it pertains\\n to . . . employing cell phones and the Internet to\\n interfere with others.\\n\\n As to Sayer's unwillingness to accept responsibility,\\n\\nthe court emphasized that Sayer had described the Probation\\n\\nOfficer's order that he receive a mental health assessment as\\n\\n\\\"ridiculous\\\" and that \\\"today even I hear him blaming his\\n\\nrelationship with M.G. for his problems . . . as opposed to\\n\\n\\n -12-\\n\\faccepting full responsibility.\\\" Moreover, the court stressed the\\n\\neffect of Sayer's conduct on others and explained: \\\"[t]o some\\n\\ndegree the analogy to a drug addict is not appropriate. This is\\n\\nnot a situation where he is using illegal substances to his own\\n\\ndetriment only. This is a situation in which his behavior harms\\n\\nothers.\\\" Thus, the court ultimately concluded that: \\\"an upward\\n\\nvariant sentence is essential, because I have before me a defendant\\n\\nwho cannot control his behavior after all this history and for\\n\\nthat reason poses what I regard to be a substantial risk of harm\\n\\nto the public.\\\"\\n\\n This explanation was adequate, more than enough to\\n\\ndefeat Sayer's procedural challenge under both the plain error and\\n\\nabuse of discretion standards. Sentencing courts need not recount\\n\\nevery detail of their decisional processes; identification of the\\n\\n\\\"main factors behind [the] decision\\\" is enough. United States v.\\n\\nVargas-García, 794 F.3d 162, 166 (1st Cir. 2015). And although\\n\\nSayer contends that the court did not sufficiently explain why it\\n\\nrejected his arguments for a lower prison term, courts are not\\n\\nrequired to specifically explain why they rejected a particular\\n\\ndefense argument in favor of a lower sentence. See id. at 167\\n\\n(holding that while a \\\"sentencing court may have a duty to explain\\n\\nwhy it chose a particular sentence, it has 'no corollary duty to\\n\\n\\n\\n\\n -13-\\n\\fexplain why it eschewed other suggested sentences'\\\" (quoting\\n\\nUnited States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014))).\\n\\n In any case, the court did explain that although it had\\n\\nconsidered Sayer's progress while on supervised release, it\\n\\n\\\"pale[d] next to the continued absence of insight on his part as\\n\\nto the type of thinking and the type of behavior which is unlawful\\n\\nand is harmful, and it's harmful to other people, not just to him.\\\"\\n\\nHence, the district court's explanation of its variant sentence\\n\\nwas sufficient, and we discern no error, much less plain error.\\n\\nB. Substantive Reasonableness of Sayer's Sentence9\\n\\n \\\"[I]f the sentence is procedurally sound, we then ask\\n\\nwhether the sentence is substantively reasonable.\\\" United States\\n\\nv. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). A sentence is\\n\\nsubstantively reasonable so long as the sentencing court has\\n\\nprovided a \\\"plausible sentencing rationale\\\" and reached a\\n\\n\\\"defensible result.\\\" United States v. Martin, 520 F.3d 87, 96\\n\\n(1st Cir. 2008). In assessing the substantive reasonableness of\\n\\na sentence, this court should \\\"take into account the totality of\\n\\nthe circumstances, including the extent of any variance from the\\n\\nGuidelines [Sentencing] [R]ange.\\\" United States v. Contreras-\\n\\nDelgado, 913 F.3d 232, 243 (1st Cir. 2019) (quoting Gall, 552 U.S.\\n\\n\\n9 Sayer claims this issue should be reviewed for abuse of\\ndiscretion, and the government does not contest it.\\n\\n\\n -14-\\n\\fat 51). \\\"[T]he greater the variance, the more compelling the\\n\\nsentencing court's justification must be.\\\" United States v.\\n\\nVázquez-Vázquez, 852 F.3d 62, 67 (1st Cir. 2017) (quoting United\\n\\nStates v. Guzmán-Fernández, 824 F.3d 173, 178 (1st Cir. 2016)).\\n\\n Sayer's violation while on supervised release was a\\n\\nGrade C violation.10 Because Sayer had a Criminal History Category\\n\\nof III, the Guidelines Sentencing Range of imprisonment was five\\n\\nto eleven months. By imposing an imprisonment term of twenty-four\\n\\nmonths on revocation, the district court varied upwards by thirteen\\n\\nmonths. Sayer argues that his sentence is longer than necessary,\\n\\nand therefore substantially unreasonable because the court: (1)\\n\\n\\\"failed to calibrate the decisional scales\\\" by not accounting for\\n\\n\\\"obvious mitigating factors\\\"; and (2) left no room for harsher\\n\\nsentences for those with higher Criminal History Categories and\\n\\nmore serious violations.\\n\\n Sayer's arguments are without merit. To begin with, the\\n\\ndistrict court clearly stated that it considered the sentencing\\n\\nfactors set forth in 18 U.S.C. § 3553(a), including \\\"Sayer's\\n\\n\\n\\n10 The Sentencing Commission's policy statement divides conduct\\nthat violates conditions of supervision into three categories:\\nGrade A, B, and C violations. U.S.S.G. § 7B1.1(a). There are two\\ntypes of Grade C violations: \\\"(A) a federal, state, or local\\noffense punishable by a term of imprisonment of one year or less;\\nor (B) a violation of any other condition of supervision.\\\"\\nU.S.S.G. § 7B1.1(a)(3)(emphasis added).\\n\\n\\n -15-\\n\\fpersonal history and characteristics\\\" and \\\"the need for the\\n\\nsentence imposed to . . . avoid unwanted sentencing disparities.\\\"\\n\\nSee United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir.\\n\\n2014) (noting that a judge's statement that he has considered all\\n\\nof the § 3553(a) factors is entitled to significant weight).\\n\\nMoreover, the court adopted the Revocation Report, which mentioned\\n\\nthe mitigating factors that Sayer refers to, as findings of fact\\n\\nin support of the sentence that it would impose. Finally, the\\n\\ndistrict court even expressly mentioned the \\\"progress\\\" that Sayer\\n\\nachieved while on supervised release, but ultimately concluded\\n\\nthat it \\\"pale[d]\\\" compared to his harmful thinking and behavior.\\n\\nHence, it is evident that the district court considered all the\\n\\nfactors it was required to.\\n\\n In essence, then, Sayer's challenge is directed at the\\n\\nsentencing judge's weighing of the factors that affect sentencing.\\n\\nHe understands that the district judge should have given certain\\n\\nmitigating factors greater significance. However, although the\\n\\ndistrict court must consider a \\\"myriad of relevant factors,\\\" the\\n\\nweighing of those factors is \\\"within the court's informed\\n\\ndiscretion.\\\" Clogston, 662 F.3d at 593. Moreover, the reasons\\n\\ncited by the district court and described above, including Sayer's\\n\\nextensive criminal history and the seriousness of his offenses,\\n\\nhis proclivity upon release towards the type of conduct for which\\n\\n\\n -16-\\n\\fhe had been convicted, his unwillingness to accept responsibility,\\n\\nand the need to protect the public from further crimes, constitute\\n\\na \\\"plausible rationale\\\" for a \\\"defensible\\\" sentence. See Martin,\\n\\n520 F.3d at 91, 98. And while Sayer argues that the sentence\\n\\nimposed did not leave room for harsher sentences for those with\\n\\nhigher Criminal History Categories and more serious violations, it\\n\\nis evident from the hearing transcript that the sentencing judge\\n\\nconsidered Sayer's criminal history and the nature of his\\n\\nviolations to be serious enough to warrant the sentence imposed.\\n\\nSee Clogston, 662 F.3d at 592 (\\\"There is no one reasonable sentence\\n\\nin any given case but, rather, a universe of reasonable sentencing\\n\\noutcomes.\\\"). Thus, considering the totality of the circumstances,\\n\\nwe find the district court's sentence to be substantively\\n\\nreasonable and not an abuse of discretion. 11\\n\\n\\nC. Sayer's Additional Term of Supervised Release upon Revocation\\n\\n Finally, Sayer argues for the first time on appeal that\\n\\nthe district court erred by imposing a term of supervised release\\n\\nin addition to the statutory maximum term of imprisonment upon\\n\\nrevocation. He contends that because the court sentenced him to\\n\\n\\n11 We have reviewed the cases Sayer cited in his briefs and in a\\npost-argument letter submitted pursuant to Federal Rule of\\nAppellate Procedure 28(j), but they fail to persuade us to the\\ncontrary. They are either distinguishable, lacking a record from\\nwhich the appellate court could have deciphered a sentencing\\nrationale, or inapposite.\\n\\n\\n -17-\\n\\fthe statutory maximum imprisonment term on revocation, it could\\n\\nnot also impose an additional term of supervised release. He\\n\\nbases this argument on the Probation Officer's erroneous\\n\\nparaphrasing of U.S.S.G. § 7B1.3(g)(2) in the Revocation Report12\\n\\nand several cited cases that imposed a statutory maximum sentence\\n\\non revocation but no additional term of supervised release.\\n\\n The plain text of 18 U.S.C. § 3583(h) and U.S.S.G.\\n\\n§ 7B1.3(g)(2) negates Sayer's position. Section 3583(h)\\n\\nestablishes that:\\n\\n When a term of supervised release is revoked and the\\n defendant is required to serve a term of imprisonment,\\n the court may include a requirement that the defendant\\n be placed on a term of supervised release after\\n imprisonment. The length of such a term of supervised\\n release shall not exceed the term of supervised release\\n authorized by statute for the offense that resulted in\\n the original term of supervised release, less any term\\n of imprisonment that was imposed upon revocation of\\n supervised release.\\n\\n(Emphasis added). U.S.S.G. § 7B1.3(g)(2) basically mirrors the\\n\\nstatute. Here, Sayer does not dispute that the maximum supervised\\n\\nrelease term authorized for his original cyberstalking offense is\\n\\n\\n12 On page 5 of the Revocation Report, the Probation Officer\\nerroneously appears to suggest that supervised release can be\\nimposed upon revocation only if the term of imprisonment imposed\\nis \\\"less\\\" than the maximum term of imprisonment imposable upon\\nrevocation. Nevertheless, the Probation Officer correctly stated\\nthe calculation on the Revocation Report's page 4 when he explained\\nthat \\\"the term of supervised release that can be imposed upon\\nrevocation is 36 months, less any imprisonment imposed for this\\nrevocation.\\\"\\n\\n\\n -18-\\n\\fthirty-six months. According to Section 3583(h), the district\\n\\ncourt could impose a second supervised release term as long as it\\n\\ndid not exceed the term of supervised release authorized for the\\n\\nunderlying conviction (i.e., thirty-six months), less the term of\\n\\nimprisonment that was imposed upon revocation (i.e., twenty-four\\n\\nmonths). As thirty-six minus twenty-four equals twelve, simple\\n\\narithmetic reveals that the new twelve-month supervised release\\n\\nterm does not exceed the maximum allowed upon revocation.\\n\\n Finally, the fact that some district courts exercise\\n\\ntheir discretion to impose only the maximum statutory imprisonment\\n\\nterm upon revocation, without a new supervised release term,13 does\\n\\nnot affect the district court's authority here to impose the\\n\\ntwelve-month supervised release term upon revocation. Thus, Sayer\\n\\nhas not been able to show any error in the district court's\\n\\nimposition of his supervised release term on revocation.\\n\\n III. Conclusion\\n\\n For the reasons expounded above, Sayer's revocation\\n\\nsentence is affirmed.\\n\\n Affirmed.\\n\\n\\n\\n\\n13 See United States v. Márquez-García, 862 F.3d 143, 145 (1st\\nCir. 2017), United States v. Alejandro-Rosado, 878 F.3d 435, 438\\n(1st Cir. 2017), United States v. Soto-Soto, 855 F.3d 445, 448\\n(1st Cir. 2017).\\n\\n\\n -19-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":476,"cells":{"id":{"kind":"number","value":4593289,"string":"4,593,289"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Rivera-Schatz v. FOMB"},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"18-1773P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before Lynch, Circuit Judge, Souter,** Associate Justice, and Stahl, Circuit Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LYNCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1773\\n\\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\\n\\n Debtors.\\n\\n\\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\\n the House of Representatives of Puerto Rico,\\n\\n Plaintiff, Appellant,\\n\\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\\n the Senate of Puerto Rico,\\n\\n Plaintiff,\\n\\n v.\\n\\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\\n SKEEL, JR.; NATALIE A. JARESKO,\\n\\n Defendants, Appellees,\\n\\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\\n\\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\\n ELECTRIC POWER AUTHORITY (PREPA),\\n\\n Debtors, Appellees.\\n\\n\\nNo. 18-1777\\n\\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\\n\\n Debtors.\\n\\n\\n\\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\\n the Senate of Puerto Rico,\\n\\n Plaintiff, Appellant,\\n\\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\\n the House of Representatives of Puerto Rico,\\n\\n Plaintiff,\\n\\n v.\\n\\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\\n SKEEL, JR.; NATALIE A. JARESKO,\\n\\n Defendants, Appellees,\\n\\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\\n\\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\\n ELECTRIC POWER AUTHORITY (PREPA),\\n\\n Debtors, Appellees.\\n\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Laura Taylor Swain,* U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter,** Associate Justice,\\n and Stahl, Circuit Judge.\\n\\n\\n\\n Israel Roldán-González for Carlos Méndez-Núñez.\\n Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,\\nSheila Torres-Delgado, David Rodríguez-Burns, and Aldarondo &\\nLópez Bras ALB, were on brief for Thomas Rivera-Schatz.\\n Timothy W. Mungovan, with whom John E. Roberts, Guy Brenner,\\nMartin J. Bienenstock, Steven L. Ratner, Mark D. Harris, Kevin J.\\nPerra, and Proskauer Rose LLP, were on brief, for the Financial\\nOversight and Management Board for Puerto Rico; Jose B. Carrion,\\nIII; Andrew G. Biggs; Carlos M. Garcia; Arthur J. Gonzalez; Jose\\nR. Gonzalez; Ana J. Matosantos; David A. Skeel, Jr.; Natalie A.\\nJaresko.\\n\\n\\n February 22, 2019\\n\\n\\n\\n\\n * Of the Southern District of New York, sitting by\\ndesignation.\\n ** Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f LYNCH, Circuit Judge. These appeals raise several\\n\\nquestions about the authority, under the Puerto Rico Oversight,\\n\\nManagement and Economic Stability Act (PROMESA), of the Financial\\n\\nOversight and Management Board for Puerto Rico to develop and\\n\\ncertify Fiscal Plans and Territory Budgets for the Commonwealth.\\n\\n48 U.S.C. §§ 2141-2142. In particular, this case is about the\\n\\n2019 Fiscal Plan and Territory Budget.\\n\\n The plaintiffs, the Speaker of Puerto Rico's House of\\n\\nRepresentatives, Carlos Méndez-Núñez, and the President of its\\n\\nSenate, Thomas Rivera-Schatz, in their official capacities and on\\n\\nbehalf of the Legislative Assembly, sued the Board, its members,\\n\\nand its executive director after the Board developed and certified\\n\\na Fiscal Plan and a Territory Budget for Fiscal Year 2019. The\\n\\ncomplaint alleged that the Board had made several erroneous\\n\\ncertification decisions and had exceeded its power under PROMESA\\n\\nduring the Fiscal Plan and Territory Budget development and\\n\\ncertification processes. It sought declaratory and injunctive\\n\\nrelief. The district court dismissed the complaint, in part for\\n\\nlack of subject matter jurisdiction and in part for failure to\\n\\nstate a claim. See Rivera-Schatz v. Fin. Oversight & Mgmt. Bd.\\n\\nfor P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 327 F. Supp.\\n\\n3d 364 (D.P.R. 2018). We affirm the dismissal on the same grounds.\\n\\n\\n\\n\\n - 4 -\\n\\f I.\\n\\n We describe the statutory context and the relevant\\n\\nevents surrounding the 2019 Fiscal Plan and Territory Budget.1\\n\\nA. PROMESA's Basic Structure\\n\\n Finding Puerto Rico to be amid a \\\"fiscal emergency,\\\"\\n\\nCongress enacted PROMESA in 2016. See Pub. L. No. 114-187\\n\\n§ 405(m)(1), 130 Stat. 549, 591 (2016); see also Aurelius Inv.,\\n\\nLLC v. Commonwealth of P.R., Nos. 18-1671, 18-1746, 18-1787, 2019\\n\\nWL 642328, at *1-2 (1st Cir. Feb. 15, 2019) (recounting the origins\\n\\nof the emergency and the responses before PROMESA). PROMESA\\n\\ncreated mechanisms for restructuring the debts of U.S. territories\\n\\nand for overseeing reforms of their fiscal and economic policies.\\n\\nSee 48 U.S.C. § 2121(a) (stating this purpose). The Board,\\n\\nestablished \\\"as an entity within the territorial government\\\" of\\n\\nPuerto Rico, id. § 2121(c)(1), was empowered by PROMESA to, among\\n\\nother things, develop, approve, and certify Fiscal Plans and\\n\\nTerritory Budgets, id. §§ 2141-2142, negotiate with the\\n\\nCommonwealth's creditors, id. § 2146, and, under Title III, to\\n\\ncommence a bankruptcy-type proceeding on behalf of the\\n\\nCommonwealth, id. § 2175; see generally Aurelius Inv., 2019 WL\\n\\n\\n\\n 1 Because the complaint was disposed of at the motion to\\ndismiss stage, we take the facts from the complaint, its\\nattachments, and the motion to dismiss and its attachments. See,\\ne.g., In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 14-15 (1st\\nCir. 2003). There are no material disputes about this record.\\n\\n\\n - 5 -\\n\\f642328, at *2-3, *11-12 (outlining key powers granted to the\\n\\nBoard).\\n\\n Congress enacted PROMESA under its Article IV \\\"Power to\\n\\ndispose of and make all needful Rules and Regulations respecting\\n\\nthe Territory . . . belonging to the United States.\\\" U.S. Const.\\n\\nart. IV § 3, cl. 2; see 48 U.S.C. § 2121(b)(2). Puerto Rico became\\n\\na U.S. territory in 1898, see Treaty of Paris, art. 9, Dec. 10,\\n\\n1898, 30 Stat. 1759, and is governed by a popularly elected\\n\\nGovernor and Legislative Assembly under a constitution adopted by\\n\\nPuerto Rico and approved by Congress under the Territorial Clause,\\n\\nsee Act of July 3, 1952, Pub. L. No. 447, ch. 567, 66 Stat. 327;\\n\\nsee also Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1875 (2016)\\n\\n(recognizing the congressional role in authorizing Puerto Rico's\\n\\n\\\"constitution-making process\\\" and in approving the resulting\\n\\nConstitution).\\n\\n PROMESA explicitly reserves \\\"the power of [Puerto Rico]\\n\\nto control, by legislation or otherwise, the territory,\\\" except as\\n\\nthat power is limited by Titles I and II of PROMESA. 48 U.S.C.\\n\\n§ 2163. In addition to that exception, PROMESA's provisions\\n\\npreempt any inconsistent \\\"general or specific provisions of\\n\\nterritory law,\\\" including provisions of Puerto Rico's\\n\\nConstitution. See id. § 2103; see also United States v. Maldonado-\\n\\nBurgos, 844 F.3d 339, 346 (1st Cir. 2016) (citing United States v.\\n\\nQuinones, 758 F.2d 40 (1st Cir. 1985) and then citing United States\\n\\n\\n - 6 -\\n\\fv. Acosta-Martinez, 252 F.3d 13, 18 (1st Cir. 2001)) (\\\"[A]\\n\\nprovision of the Puerto Rico Constitution cannot prevail where it\\n\\nconflicts with applicable federal law.\\\").\\n\\n We have previously had occasion to interpret aspects of\\n\\nPROMESA's Title III. See Fin. Oversight & Mgmt. Bd. for P.R. v.\\n\\nAd Hoc Grp. of PREPA Bondholders (In re Fin. Oversight & Mgmt. Bd.\\n\\nfor P.R.), 899 F.3d 13, 18 (1st Cir. 2018); Peaje Invs. LLC v.\\n\\nGarcía-Padilla, 845 F.3d 505, 511 (1st Cir. 2017); Lex Claims, LLC\\n\\nv. Fin. Oversight & Mgmt. Bd., 853 F.3d 548, 552 (1st Cir. 2017);\\n\\nsee also Altair Glob. Credit Opportunities Fund, LLC v. The Emps.\\n\\nRet. Sys. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 914 F.3d\\n\\n694, 707 (1st Cir. 2019) (noting PROMESA's enactment). Recently,\\n\\nin Aurelius Investment, LLC v. Commonwealth of Puerto Rico, 2019\\n\\nWL 642328, at *1, this court considered the constitutionality of\\n\\nPROMESA's procedure for appointing Board members, see 48 U.S.C.\\n\\n§ 2121(e). Aurelius' holding that this procedure violates the\\n\\nAppointments Clause, U.S. Const. art. II, § 2, cl. 2, has no effect\\n\\non the \\\"otherwise valid actions of the Board prior to the issuance\\n\\nof [Aurelius'] mandate,\\\" and so does not impact the outcome of\\n\\nthese appeals, Aurelius Inv., 2019 WL 642328, at *17.\\n\\n At issue here are events that occurred in 2018 and\\n\\nquestions of first impression about Title II's provisions related\\n\\nto Fiscal Plans and Territory Budgets. 48 U.S.C. §§ 2141-2142.\\n\\nWe explain those provisions in greater detail below.\\n\\n\\n - 7 -\\n\\fB. 2019 Fiscal Plan\\n\\n Congress intended for Fiscal Plans to provide roadmaps\\n\\nfor Puerto Rico \\\"to achieve fiscal responsibility and access to\\n\\nthe capital markets.\\\" Id. § 2141(b)(1). PROMESA § 201 grants the\\n\\nBoard exclusive authority to review, approve, and certify these\\n\\nPlans.2 See id. § 2141(c)-(e); cf. Aurelius Inv., 2019 WL 642328,\\n\\nat *12 (describing these and related powers and characterizing\\n\\nthem as \\\"significant\\\"). That section also outlines a yearly\\n\\nprocess, involving only the Governor and the Board, for development\\n\\nof Fiscal Plans. See generally 48 U.S.C. § 2141. The Legislative\\n\\nAssembly has a formal role in economic planning and budgeting under\\n\\nPROMESA, but that role is limited to the Territory Budget\\n\\ndevelopment process. See id. § 2142(d).\\n\\n\\n\\n 2 PROMESA does provide one path for the Governor and the\\nBoard to jointly develop and certify Fiscal Plans \\\"that meet[] the\\nrequirements under [§ 201].\\\" 48 U.S.C. § 2141(f). The full\\nprovision reads:\\n (f) Joint development of Fiscal Plan\\n Notwithstanding any other provision of this\\n section, if the Governor and the Oversight\\n Board jointly develop a Fiscal Plan for the\\n fiscal year that meets the requirements under\\n this section, and that the Governor and the\\n Oversight Board certify that the fiscal plan\\n reflects a consensus between the Governor and\\n the Oversight Board, then such Fiscal Plan\\n shall serve as the Fiscal Plan for the\\n territory or territorial instrumentality for\\n that fiscal year.\\n\\nId.\\n\\n\\n - 8 -\\n\\f 1. Initial Development\\n\\n PROMESA's prescribed process for \\\"[d]evelopment, review,\\n\\napproval, and certification of Fiscal Plans\\\" occurs on a schedule\\n\\nset by the Board, id. § 2141(c); see id. § 2141(a), and begins\\n\\nwith the submission of a proposed Fiscal Plan by the Governor, see\\n\\nid. § 2141(c) (\\\"The Governor shall submit to the Oversight Board\\n\\nany proposed Fiscal Plan . . . .\\\"). For 2019, the Governor sent\\n\\nseveral versions of his proposed Fiscal Plan to the Board between\\n\\nJanuary and April 2018.\\n\\n The Board reviewed each of these proposals, as required\\n\\nby § 201(c)(3), which states that \\\"[t]he Oversight Board shall\\n\\nreview any proposed Fiscal Plan to determine whether it satisfies\\n\\nthe requirements set forth in subsection (b).\\\" Id. § 2141(c)(3).\\n\\nContained in subsection (b) are over a dozen specific requirements.\\n\\nThose include \\\"provid[ing] for the elimination of structural\\n\\ndeficits\\\" and \\\"for the investments necessary to promote economic\\n\\ngrowth.\\\" Id. § 2141(b)(1)(A)–(N).3\\n\\n\\n 3 The requirements \\\"set forth in\\\" § 201(b) are:\\n (A) provide for estimates of revenues and\\n expenditures in conformance with agreed\\n accounting standards and be based on --\\n (i) applicable laws; or\\n (ii) specific bills that require\\n enactment in order to reasonably achieve\\n the projections of the Fiscal Plan;\\n (B) ensure the funding of essential public\\n services;\\n (C) provide adequate funding for public\\n pension systems;\\n\\n - 9 -\\n\\f Here, the Board rejected each of the Governor's proposed\\n\\n2019 Fiscal Plans as not satisfying § 201(b)'s requirements.4 The\\n\\n\\n\\n\\n (D) provide for the elimination of structural\\n deficits;\\n (E) for fiscal years covered by a Fiscal Plan\\n in which a stay under subchapters III or IV is\\n not effective, provide for a debt burden that\\n is sustainable;\\n (F) improve fiscal governance,\\n accountability, and internal controls;\\n (G) enable the achievement of fiscal targets;\\n (H) create independent forecasts of revenue\\n for the period covered by the Fiscal Plan;\\n (I) include a debt sustainability analysis;\\n (J) provide for capital expenditures and\\n investments necessary to promote economic\\n growth;\\n (K) adopt appropriate recommendations\\n submitted by the Oversight Board under section\\n 2145(a) of this title;\\n (L) include such additional information as the\\n Oversight Board deems necessary;\\n (M) ensure that assets, funds, or resources of\\n a territorial instrumentality are not loaned\\n to, transferred to, or otherwise used for the\\n benefit of a covered territory or another\\n covered territorial instrumentality of a\\n covered territory, unless permitted by the\\n constitution of the territory, an approved\\n plan of adjustment under subchapter III, or a\\n Qualifying Modification approved under\\n subchapter VI; and\\n (N) respect the relative lawful priorities or\\n lawful liens, as may be applicable, in the\\n constitution, other laws, or agreements of a\\n covered territory or covered territorial\\n instrumentality in effect prior to June 30,\\n 2016.\\n\\n48 U.S.C. § 2141(b)(1).\\n 4 If the Board had determined that one of the Fiscal Plans\\nproposed by the Governor did \\\"satisf[y] such requirements, the\\n\\n\\n - 10 -\\n\\fBoard returned two of the Governor's proposals to him, as required\\n\\nby § 201(c)(3)(B), with \\\"a notice of violation that includes\\n\\nrecommendations for revisions to the applicable Fiscal Plan;\\n\\nand . . . an opportunity to correct the violation.\\\" Id.\\n\\n§ 2141(c)(3)(B). At the time the Board rejected the Governor's\\n\\nfinal, April 2018, proposal, the deadline for certifying a 2019\\n\\nFiscal Plan had passed. Under such circumstances (that is, when\\n\\n\\\"the Governor fails to submit to the Oversight Board a Fiscal Plan\\n\\nthat the Oversight Board determines in its sole discretion\\n\\nsatisfies the requirements . . . by the time specified\\\"), PROMESA\\n\\n§ 201(d)(2) provides that \\\"the Oversight Board shall develop and\\n\\nsubmit to the Governor and the Legislature a Fiscal Plan that\\n\\nsatisfies the requirements.\\\" Id. § 2141(d)(2).\\n\\n 2. April 19, 2018 Fiscal Plan\\n\\n On April 19, 2018, the Board accordingly certified a\\n\\n2019 Fiscal Plan that it had developed. That Fiscal Plan was\\n\\nautomatically \\\"deemed approved by the Governor\\\" under § 201(e)(2).\\n\\nSee id. § 2141(e)(2) (\\\"If the Oversight Board develops a Fiscal\\n\\nPlan under subsection (d)(2), such Fiscal Plan shall be deemed\\n\\napproved by the Governor . . . .\\\").\\n\\n The April Fiscal Plan incorporated many aspects of the\\n\\nGovernor's proposed Fiscal Plan. It also included a labor reform\\n\\n\\nOversight Board\\\" would have been required to \\\"approve\\\" and certify\\nthat proposed Fiscal Plan. Id. § 2141(c)(3)(A), (e)(1).\\n\\n\\n - 11 -\\n\\fpackage not proposed by the Governor. This was one among a set of\\n\\n\\\"comprehensive structural reforms to the economy of Puerto Rico\\\"\\n\\nset forth in the Plan. These comprehensive reforms, to Puerto\\n\\nRico's labor laws, business regulations, and infrastructure (among\\n\\nother areas), were designed by the Board to \\\"revers[e] the negative\\n\\ntrend [of economic] growth over the last 10 years and enabl[e] the\\n\\nIsland to become a vibrant and productive economy going forward.\\\"\\n\\n \\\"[I]ncreasing labor force participation may be the\\n\\nsingle most important reform for long-term economic well-being in\\n\\nPuerto Rico,\\\" the April Plan stated. It identified three \\\"labor\\n\\nmarket reforms\\\" intended \\\"[t]o reduce the cost to hire and\\n\\nencourage job creation, including movement of informal jobs to the\\n\\nformal economy.\\\" The three \\\"initiatives to change labor\\n\\nconditions\\\" were: a shift to at-will employment; a \\\"[r]eduction of\\n\\nmandated paid leave, including sick leave and vacation pay;\\\" and\\n\\nan end to \\\"mandated Christmas bonuses.\\\" The called-for adoption\\n\\nof at-will employment required the repeal of Puerto Rico's Law No.\\n\\n80 of May 30, 1976, P.R. Laws Ann. tit 29 §§ 185a-185m, which bars\\n\\ntermination of many private-sector employees without cause.\\n\\n As to this first reform, the Plan noted that \\\"49 out of\\n\\n50 U.S. states are employment at-will jurisdictions, giving\\n\\nemployers the flexibility to dismiss an employee without having to\\n\\nfirst prove just cause.\\\" It acknowledged that \\\"some employees\\n\\nbenefit from Puerto Rico's lack of at-will employment\\\" but credited\\n\\n\\n - 12 -\\n\\fevidence that for-cause employment \\\"makes it more costly and risky\\n\\nnot only to dismiss, but also to hire, an employee.\\\" \\\"For\\n\\nexample,\\\" the Plan summarized, \\\"studies have found that laws\\n\\npreventing unfair dismissal caused reductions in employment,\\n\\nparticularly in labor-intensive industries.\\\" It concluded that\\n\\nswitching to at-will employment \\\"will lower the cost and risk of\\n\\nhiring in Puerto Rico.\\\"\\n\\n The Plan quantified the impact of the labor reform\\n\\npackage on the Commonwealth's annual budget surplus over thirty\\n\\nyears. It projected that, with the adoption of at-will employment,\\n\\nPuerto Rico would have a $39 billion cumulative surplus over that\\n\\nperiod, compared with a $2 billion cumulative surplus without the\\n\\nenactment of at-will employment.\\n\\n The April Fiscal Plan also cut the operating budget of\\n\\nthe Puerto Rican Legislative Assembly. These \\\"reductions for the\\n\\nLegislative Assembly\\\" were \\\"informed by benchmarking against other\\n\\nfull-time legislatures\\\" in the United States, the Plan explained.\\n\\nThe Puerto Rican Legislative Assembly's expenditure in Fiscal Year\\n\\n2018 was about 300% greater than the (population-weighted)\\n\\nnational average of full-time U.S. legislatures, according to an\\n\\nanalysis by the Board of publicly available data.5 The Plan stated\\n\\n\\n\\n\\n 5 This analysis appeared in the Board's motion to dismiss.\\n\\n\\n - 13 -\\n\\fthat these reductions would achieve \\\"reinvestment savings\\\" of\\n\\nbetween $23.6 and $25 million per year for the next five years.\\n\\n 3. May 30, 2018 Fiscal Plan\\n\\n The Governor and the Board continued negotiating about\\n\\nthe labor reform package and other matters after the April Fiscal\\n\\nPlan had been certified. Eventually, the Board agreed to certify\\n\\na revised Fiscal Plan that it had developed. It did so on May 30,\\n\\n2018. Two aspects of the Board's May Fiscal Plan are relevant to\\n\\nthese appeals.\\n\\n First, the May Fiscal Plan provided for a shift to\\n\\nat-will employment. Specifically:\\n\\n The Legislature shall introduce and the\\n Governor shall sign a bill that repeals Act\\n No. 80 . . . on or before June 27, 2018, which\\n shall become effective on or before January 1,\\n 2019. . . . The Bill shall state that, for\\n the avoidance of doubt, an employee hired for\\n an indefinite period of time does not have a\\n cause of action against their employer merely\\n for the employer's termination of the\\n employment relation.\\n\\nThat is, the government of Puerto Rico would repeal Law 80 and\\n\\nclarify that employment is at will.\\n\\n Second, the cut to the Legislative Assembly's budget was\\n\\nremoved from the May version of the Fiscal Plan. In addition,\\n\\ncuts to the budget of the judiciary included in the April Fiscal\\n\\nPlan were \\\"reduced by half each year\\\" in the May version, a change\\n\\nthat increased the court system's budget by up to $23 million per\\n\\n\\n\\n\\n - 14 -\\n\\fyear over what had been budgeted in the April version. According\\n\\nto a statement of understanding between the Governor and the Board,\\n\\nthese operating budgets were to \\\"be revisited annually,\\\" and these\\n\\nfunding levels were made contingent on Puerto Rico's \\\"compliance\\n\\nwith the then-applicable fiscal plan.\\\" That is, the May Fiscal\\n\\nPlan stated that the allocations for the Legislative Assembly and\\n\\nthe judiciary\\n\\n are pursuant to Puerto Rico becoming an\\n employment at-will jurisdiction by repealing\\n Law 80 of May 30, 1976 on or before June 27,\\n 2018 . . . . If the repeal does not occur,\\n none of these changes and alterations [to the\\n Legislative Assembly's and the judiciary's\\n budgets] shall be implemented.\\n\\n The Legislative Assembly did not repeal Law 80. Instead,\\n\\nthe day the Board certified the May Fiscal Plan, May 30, Puerto\\n\\nRico's Senate passed Senate Bill 1011, which made at-will\\n\\nemployment the rule for employees hired after the date of the\\n\\nbill's enactment, while retaining Law 80's for-cause rule for those\\n\\nalready employed.6\\n\\n The House of Representatives immediately began\\n\\nconsidering Senate Bill 1011. Recognizing that the bill did not\\n\\n\\n\\n\\n 6 The Senate also studied a labor reform bill that the\\nBoard had drafted based on the April Fiscal Plan. Based on\\ntestimony from experts and a review of studies, a Senate committee\\npenned a report in July 2018 rejecting the proposed bill and\\nstating that the bill's reforms, including at-will employment,\\n\\\"have not had a positive or significant impact in [other] economies\\nwhere similar . . . reforms have been implemented.\\\"\\n\\n\\n - 15 -\\n\\ffully repeal Law 80, the President of the House Government Affairs\\n\\nCommittee sent a letter to the Board asking about the \\\"effect on\\n\\nthe Fiscal Plan and the budget to be certified by the Financial\\n\\nOversight Board\\\" were the House to pass Senate Bill 1011. The\\n\\nBoard responded that same day, June 4, that, if the Legislative\\n\\nAssembly \\\"fails to comply exactly with the understanding reached\\n\\nwith the Oversight Board concerning the repeal of Law 80, the\\n\\nOversight Board will amend the Fiscal Plan and Budget to,\\\" among\\n\\nother things, \\\"[m]aintain the cuts to the budgets of the\\n\\nLegislature and Judiciary as outlined in the April 19 Fiscal Plan.\\\"\\n\\nTen days later, on June 14, the House passed Senate Bill 1011.\\n\\nThe parties agree that Senate Bill 1011 never became law; the\\n\\nrecord does not explain why.\\n\\n 4. June 29, 2018 Fiscal Plan\\n\\n On June 29, 2018, the Board informed the Governor and\\n\\nthe Legislative Assembly by letter that it was certifying a new\\n\\nFiscal Plan. As had been promised in the May Fiscal Plan and in\\n\\nthe Board's June 4 letter, the Board's June Fiscal Plan funded the\\n\\njudiciary and the Legislative Assembly at the levels stated in the\\n\\nApril Plan. The letter explained, \\\"Unfortunately, we now know\\n\\nthat the Government of Puerto Rico will not implement the [May]\\n\\nFiscal Plan in full because the Legislature . . . failed to pass\\n\\nthe most important component of the Labor Reform Package -- the\\n\\n\\n\\n\\n - 16 -\\n\\frepeal of Law 80 and turning Puerto Rico into an at-will employment\\n\\njurisdiction.\\\"\\n\\n The labor reform package was absent from the Board's\\n\\nJune Fiscal Plan, certified June 29, 2018. On that subject, the\\n\\nJune Plan stated the following:\\n\\n [W]hile successful human capital and welfare\\n reforms would have been projected to generate\\n approximately $39 billion in additional\\n revenues by FY2048 and over ~$320 million from\\n FY2018-FY2023, the Legislature's demonstrated\\n noncompliance with the comprehensive labor\\n reform requirements of previous fiscal plans\\n has forced the removal of these projected\\n revenues from the New Fiscal Plan.\\n\\nC. 2019 Territory Budget\\n\\n PROMESA § 202 grants the Board exclusive authority to\\n\\nreview, approve, and certify Territory Budgets. See 48 U.S.C.\\n\\n§ 2142; see also Aurelius Inv., 2019 WL 642328, at *12 (recognizing\\n\\nthe Board's \\\"significant\\\" power to approve and reject Commonwealth\\n\\nbudgets). The Legislative Assembly's only responsibility under\\n\\n§ 202 is to \\\"submit to the Oversight Board the Territory Budget\\n\\nadopted by the Legislature.\\\" 48 U.S.C. § 2142(d)(1).\\n\\n For 2019, the Legislative Assembly did this on June 30,\\n\\n2018, the day before the start of the Fiscal Year. Earlier that\\n\\nday, the Legislature had approved an $8,708,623,000 Commonwealth\\n\\nbudget (which the Governor later signed).\\n\\n Also on June 30, the Board determined that the\\n\\nLegislative Assembly's Budget was non-compliant with the\\n\\n\\n\\n - 17 -\\n\\fBoard-certified June Fiscal Plan.7 The Legislative Assembly's\\n\\n$84,275,000 combined allocation for Puerto Rico's House of\\n\\nRepresentatives ($45,470,000) and Senate ($38,805,000) matched the\\n\\nbudget for the Legislative Assembly under the Board's May Fiscal\\n\\nPlan but exceeded the reduced allocation in the June Plan.\\n\\n The Board then immediately certified a Territory Budget\\n\\nit had developed totaling $8,757,524,000. Of this, and consistent\\n\\nwith the June Fiscal Plan, $65,292,000 was allocated to the\\n\\nLegislative Assembly ($35,228,000 to the House and $30,064,000 to\\n\\nthe Senate). In developing and certifying this Budget, the Board\\n\\nrelied on its authority under § 202(e)(3). That provision\\n\\nprovides:\\n\\n If the Governor and the Legislature fail to\\n develop and approve a Territory Budget that is\\n a compliant budget by the day before the first\\n day of the fiscal year for which the Territory\\n Budget is being developed, the Oversight Board\\n shall submit a Budget to the Governor and the\\n Legislature . . . and such Budget shall be --\\n (A) deemed to be approved by the Governor\\n and the Legislature; . . .\\n (C) in full force and effect beginning on\\n the first day of the applicable fiscal\\n year.\\n\\n\\n\\n\\n 7 If the Board had deemed this \\\"adopted Territory Budget\\\"\\nto be compliant with the Fiscal Plan, then the Oversight Board\\nwould have been required to \\\"issue a compliance certification for\\nsuch compliant budget.\\\" 48 U.S.C. § 2142(d)(1)(A).\\n\\n\\n - 18 -\\n\\fId. § 2142(e)(3).8 By operation of law, then, the Board's 2019\\n\\nTerritory Budget went into effect.\\n\\nD. Procedural History\\n\\n On July 9, plaintiffs filed their complaint against the\\n\\nBoard seeking the following relief:9 (1) a declaration \\\"that the\\n\\nrejected policy recommendations in the Fiscal Plan are non-binding\\n\\nrecommendations, and that the Legislative Assembly cannot be\\n\\ncompelled to implement any of those policies, and the [Board] may\\n\\nnot take any actions to force compliance with such\\n\\nrecommendations;\\\" (2) a declaration that the Territory Budget\\n\\ncertified by the Board \\\"is null and void;\\\" and (3) an injunction\\n\\n\\\"prohibiting the defendants from implementing and enforcing\\\" the\\n\\nBoard-developed and certified Budget and \\\"reinstat[ing]\\\" the\\n\\nBudget adopted by the Legislative Assembly. We describe the pled\\n\\ntheories for relief in the analysis.\\n\\n Defendants moved to dismiss the complaint for lack of\\n\\nsubject matter jurisdiction and for failure to state a claim to\\n\\nrelief, and the district court granted the motion. Rivera-Schatz,\\n\\n\\n 8 Had these events occurred before \\\"the day before the\\nfirst day of the fiscal year\\\" and had the Board determined that\\nthe submitted Budget was not compliant, then PROMESA says that\\n\\\"the Oversight Board shall provide to the Legislature -- (i) a\\nnotice of violation that includes a description of any necessary\\ncorrective action; and (ii) an opportunity to correct the\\nviolation.\\\" 48 U.S.C. § 2142(d)(1)(B).\\n 9 The complaint was filed in the District of Puerto Rico\\nin the Commonwealth's ongoing case under Title III of PROMESA.\\n\\n\\n - 19 -\\n\\f327 F. Supp. 3d at 369-71. The court first held that the request\\n\\nfor a declaration about Fiscal Plan recommendations did not rest\\n\\non a proper Article III case or controversy, and it dismissed that\\n\\nrequest, which appeared in Paragraph 79 of the complaint, for lack\\n\\nof subject matter jurisdiction. Id. at 370-71. Next, in\\n\\ndismissing the remaining declaratory- and injunctive-relief\\n\\nclaims, the district court gave two reasons. To the extent those\\n\\nclaims directly challenged the Board's budget certification\\n\\ndecisions, the district court dismissed them for lack of subject\\n\\nmatter jurisdiction, relying on PROMESA § 106(e). Id. at 371.\\n\\nThat provision states that \\\"[t]here shall be no jurisdiction in\\n\\nany United States district court to review challenges to the\\n\\nOversight Board's certification determinations under [PROMESA].\\\"\\n\\n48 U.S.C. § 2126(e); see Rivera-Schatz, 327 F. Supp. 3d at 371.\\n\\nTo the extent that the remaining claims challenged the Board's\\n\\nactions as exceeding its authority under PROMESA or as encroaching\\n\\non the Legislative Assembly's power under Puerto Rico's\\n\\nConstitution, the district court dismissed them for failure to\\n\\nstate a claim. Rivera-Schatz, 327 F. Supp. 3d at 372-73.\\n\\n II.\\n\\n We review the district court's grant of the motion to\\n\\ndismiss de novo. See, e.g., Flores v. OneWest Bank, F.S.B., 886\\n\\nF.3d 160, 162 (1st Cir. 2018). In doing so, we analyze the issues\\n\\nwithin the basic three-part framework outlined by the district\\n\\n\\n - 20 -\\n\\fcourt, considering first the request for a declaration about Fiscal\\n\\nPlan recommendations, and then the declaratory- and injunctive-\\n\\nrelief claims about the 2019 Budget.\\n\\n We affirm the district court's grounds for dismissal.\\n\\nFirst, the federal courts lack Article III jurisdiction over the\\n\\ncomplaint's request for a declaration about Fiscal Plan\\n\\nrecommendations. Second, the district court correctly concluded\\n\\nthat, under § 106(e), it lacked jurisdiction to review alleged\\n\\nerrors in the Board's certification determinations. Third, the\\n\\ncomplaint fails to state a claim to relief on the theory that the\\n\\nBoard exceeded its authority under PROMESA during the 2019 Fiscal\\n\\nPlan and Territorial Budget processes.\\n\\n The Board defends these grounds. It does not challenge\\n\\nthe district court's reading of § 106(e), and we do not engage\\n\\nthat topic.\\n\\nA. Article III Jurisdiction\\n\\n Count I of the complaint alleges that \\\"PROMESA does not\\n\\nallow the [Board] to bypass or usurp the Legislative Assembly's\\n\\nlegislative power\\\" by \\\"set[ting] forth the Commonwealth's public\\n\\npolicy\\\" as to \\\"the rights of employees in Puerto Rico.\\\" The Board\\n\\ndid just that, the complaint asserts, \\\"when it tried to force the\\n\\nLegislative Assembly to pass a bill retroactively repealing Law 80\\n\\nas a condition to approve the Commonwealth's budget.\\\" And when\\n\\nthe Legislative Assembly declined to repeal Law 80, the complaint\\n\\n\\n - 21 -\\n\\fsays, the Board \\\"punished it by imposing severe cuts in its\\n\\noperational budget.\\\" Based on those allegations, Paragraph 79 of\\n\\nthe complaint says:\\n\\n Plaintiffs are therefore entitled to a\\n judicial declaration under [the Declaratory\\n Judgment Act] . . . that the rejected policy\\n recommendations in the Fiscal Plan are\\n non-binding recommendations, and that the\\n Legislative Assembly cannot be compelled to\\n implement any of those policies, and the\\n [Board] may not take any actions to force\\n compliance with such recommendations.\\n\\nThe federal courts lack Article III jurisdiction over Paragraph\\n\\n79's request.\\n\\n The Declaratory Judgment Act allows \\\"any court of the\\n\\nUnited States\\\" to \\\"declare the rights and other legal relations of\\n\\nany interested party seeking such declaration, whether or not\\n\\nfurther relief is or could be sought,\\\" but only \\\"[i]n a case of\\n\\nactual controversy within [that court's] jurisdiction.\\\" 28 U.S.C.\\n\\n§ 2201(a). As the Supreme Court has explained, \\\"the phrase 'case\\n\\nof actual controversy' in the Act refers to the type of 'Cases'\\n\\nand 'Controversies' that are justiciable under Article III.\\\"\\n\\nMedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)\\n\\n(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)).\\n\\nAlthough there is not \\\"the brightest of lines between those\\n\\ndeclaratory-judgment actions that satisfy the case-or-controversy\\n\\nrequirement and those that do not,\\\" id., \\\"[b]asically, the question\\n\\nin each case is whether the facts alleged, under all the\\n\\n\\n - 22 -\\n\\fcircumstances, show that there is a substantial controversy,\\n\\nbetween parties having adverse legal interests, of sufficient\\n\\nimmediacy and reality to warrant the issuance of a declaratory\\n\\njudgment,\\\" Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,\\n\\n273 (1941).\\n\\n This standard cannot be satisfied if Paragraph 79 is\\n\\nread to request a declaration about the rights of the Board and\\n\\nthe Legislative Assembly whenever there is disagreement about\\n\\nwhether to implement a Fiscal Plan policy included by the Board.10\\n\\nThat would be a request for an advisory opinion about the import\\n\\nof Fiscal Plans under PROMESA.\\n\\n Appellants' attempts to read into Paragraph 79 a\\n\\njusticiable dispute with definite legal and factual dimensions\\n\\nfare no better under Article III's standard. The request cannot\\n\\nbe made justiciable by defining the \\\"rejected policy\\n\\nrecommendations\\\" as the labor reform package introduced in the\\n\\n\\n\\n 10 The district court observed that \\\"recommendations\\\" could\\nrefer to \\\"the concept of 'recommendations' under Section 205 of\\nPROMESA.\\\" Rivera-Schatz, 327 F. Supp. 3d at 370. Section 205\\nallows the Board to make policy recommendations to the Governor or\\nthe Legislative Assembly \\\"at any time\\\" and provides a procedure\\nfor \\\"the territorial government\\\" to adopt or reject the\\nrecommendations. 48 U.S.C. § 2145. In his brief, Méndez-Núñez,\\nthe House Speaker, alludes to this reading. We agree with the\\ndistrict court that, if Paragraph 79 refers to § 205\\nrecommendations in the abstract, that paragraph requests an\\nadvisory opinion about the \\\"meaning and effect of a section of the\\nstatute,\\\" and we lack Article III jurisdiction. Rivera-Schatz,\\n327 F. Supp. 3d at 371.\\n\\n\\n - 23 -\\n\\fApril Fiscal Plan, as Rivera-Schatz, the Senate President, does in\\n\\nhis brief. Under this reading of Paragraph 79, the dispute lacks\\n\\nthe requisite reality: The currently certified Fiscal Plan does\\n\\nnot include the objected-to labor reforms, which were removed\\n\\nbefore the June version. To provide the declarations, then, would\\n\\nrequire a court to imagine a set of labor reforms into the Fiscal\\n\\nPlan and to predict the Board and the Legislative Assembly's\\n\\nreactive moves and counter-moves. The resulting declaration would\\n\\nbe an impermissible \\\"opinion advising what the law would be upon\\n\\na hypothetical state of facts.\\\" Aetna, 300 U.S. at 241.\\n\\n Appellants cannot get around this by reading Paragraph\\n\\n79 to request a declaration about the April or May Fiscal Plans\\n\\nand the ensuing actions of the Legislative Assembly and the Board.\\n\\nSuch a request would still be one for an advisory opinion, as past\\n\\ndifferences are not amenable to the type of relief that Article\\n\\nIII allows courts to give -- \\\"decree[s] of a conclusive character\\\"\\n\\nadjudicating adverse parties' actual rights and interests. Aetna,\\n\\n300 U.S. at 241; cf. Hall v. Beals, 396 U.S. 45, 48 (1969) (holding\\n\\nthat an amendment to the challenged statute eliminated any\\n\\n\\\"controversy of the kind that must exist if we are to avoid\\n\\nadvisory opinions\\\").\\n\\n Nor can the request be made justiciable by reading\\n\\nParagraph 79 to request a declaration on disputes that the\\n\\nappellants say are likely to arise under future Fiscal Plans. In\\n\\n\\n - 24 -\\n\\fDeclaratory Judgment Act cases where jurisdiction is exercised\\n\\nbased on a threat of future injury, the potential injury is\\n\\ntypically legal liability on a set of already defined facts,11 so\\n\\nthat the Act merely \\\"defin[es] procedure\\\" to enable judicial\\n\\nresolution of a case or controversy that might otherwise be\\n\\nadjudicated at a different time or in a slightly different form.\\n\\nSee Aetna, 300 U.S. at 240. That is not this request. Whatever\\n\\nfuture disputes may arise have not yet been and may never be\\n\\nadequately framed by their factual dimensions. See Texas v. United\\n\\nStates, 523 U.S. 296, 300 (1998) (stating that a dispute is not\\n\\njusticiable \\\"if it rests upon 'contingent future events that may\\n\\nnot occur as anticipated, or indeed may not occur at all'\\\" (quoting\\n\\nThomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81\\n\\n(1985))). Declaratory claims based on abstractions are not\\n\\njusticiable under Article III. See Int'l Longshoremen's &\\n\\nWarehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 224 (1954)\\n\\n(\\\"Determination of the scope . . . of legislation\\\" on fictional\\n\\nfacts \\\"involves too remote and abstract an inquiry for the proper\\n\\nexercise of the judicial function.\\\").\\n\\n\\n\\n\\n 11 See, e.g., Steffel v. Thompson, 415 U.S. 452, 475 (1974)\\n(exercising jurisdiction over pre-prosecution challenge to\\ncriminal statute); MedImmune, 549 U.S. at 137 (recognizing Article\\nIII jurisdiction over declaratory claims based on threatened\\nprivate enforcement action).\\n\\n\\n - 25 -\\n\\fB. Statutory Subject Matter Jurisdiction\\n\\n The complaint also seeks a declaration that the June\\n\\nBudget certified by the Board \\\"is null and void\\\" and an injunction\\n\\n\\\"prohibiting the defendants from implementing and enforcing\\\" the\\n\\nBoard-developed and certified Budget and \\\"reinstat[ing]\\\" the\\n\\nLegislative Assembly's Budget. In support of this, Count II of\\n\\nthe complaint outlines a theory that the Board erred in determining\\n\\nthat Senate Bill 1011 did not conform with the May Fiscal Plan.\\n\\nThis error, Count II asserts, led the Board to a second erroneous\\n\\ndetermination that the June Fiscal Plan should be certified, then\\n\\nto a third erroneous determination that the Legislative Assembly's\\n\\nBudget should not be certified because it did not comply with the\\n\\nJune Fiscal Plan, and finally to a fourth erroneous determination\\n\\nthat the Board-developed Budget should be certified. The district\\n\\ncourt held that it lacked jurisdiction under § 106(e) over the\\n\\nclaims that rested on Count II's allegations. See Rivera-Schatz,\\n\\n327 F. Supp. 3d at 371.\\n\\n We agree. PROMESA grants the Board exclusive authority\\n\\nto certify Fiscal Plans and Territory Budgets for Puerto Rico. It\\n\\nthen insulates those certification decisions from judicial review\\n\\nin § 106(e): \\\"There shall be no jurisdiction in any United States\\n\\ndistrict court to review challenges to the Oversight Board's\\n\\ncertification determinations under this chapter.\\\" 48 U.S.C.\\n\\n§ 2126(e). Section 106(e) is an exception to PROMESA's general\\n\\n\\n - 26 -\\n\\fgrant of jurisdiction at § 106(a), which provides that \\\"any action\\n\\nagainst the Oversight Board, and any action otherwise arising out\\n\\nof this chapter, in whole or in part, shall be brought in a United\\n\\nStates district court for the covered territory.\\\" Id. § 2126(a).\\n\\n Count II of the complaint alleges four unreviewable\\n\\nBoard errors in \\\"certification determinations under this chapter.\\\"\\n\\nId. § 2126(e). The district court was correct that it lacked\\n\\njurisdiction to review the Board's determination that the passage\\n\\nof Senate Bill 1011 was inconsistent with the May Fiscal Plan's\\n\\nrequirement to repeal Law 80. That determination was the basis\\n\\nfor the Board's decision to certify, under § 201(e)(2), the June\\n\\nFiscal Plan. And § 106(e) bars district courts from reviewing the\\n\\nreasons for certification determinations as much as the\\n\\ncertification determinations themselves. Nor did the district\\n\\ncourt have jurisdiction to review whether the Board erred in\\n\\ndeeming the Legislative Assembly's Budget non-compliant with the\\n\\napplicable Fiscal Plan and in certifying instead a Board-developed\\n\\nTerritory Budget. These decisions, which § 202 expressly empowers\\n\\nthe Board to make, see id. § 2142(d)-(e), are prototypical\\n\\n\\\"certification determinations under this chapter,\\\" id. § 2126(e).\\n\\n Rivera-Schatz's argument that the Board's determinations\\n\\nabout Territory Budgets adopted by the Legislative Assembly are\\n\\nreviewable runs headlong into the text of § 106(e). His argument\\n\\nrests on the following attempted contrast of §§ 201 and 202: § 201\\n\\n\\n - 27 -\\n\\fstates that the Board has \\\"sole discretion\\\" to determine whether\\n\\nto certify a Fiscal Plan or a Budget proposed by the Governor, see\\n\\nid. § 2141(c)(3), (c)(1), while § 202 does not use the phrase \\\"sole\\n\\ndiscretion\\\" in granting the Board authority to \\\"determine whether\\n\\nthe [Legislature-]adopted Territory Budget is a compliant budget,\\\"\\n\\nid. § 2142(d)(1). From this, Rivera-Schatz asks us to infer first\\n\\nthat the Board's authority to make determinations about\\n\\nLegislature-adopted Budgets is non-exclusive. Rivera-Schatz urges\\n\\nthat a second inference -- that such determinations are subject to\\n\\njudicial review -- follows. Section 106(e)'s text forecloses\\n\\nthese inferences. It plainly bars judicial review of \\\"challenges\\n\\nto the Oversight Board's certification determinations.\\\" Id.\\n\\n§ 2126(e). It does not distinguish among the various certification\\n\\ndeterminations that PROMESA commits to the Board.\\n\\n Appellants next argue, by analogy to a doctrine of\\n\\nadministrative law, that the challenged certification\\n\\ndeterminations are reviewable, despite § 106(e)'s jurisdictional\\n\\nprohibition, because the Board's actions violated clear statutory\\n\\ndirectives in §§ 201 and 202. This court has never recognized\\n\\nsuch an exception to any statutory provision explicitly precluding\\n\\njudicial review. Cf. Paluca v. Sec'y of Labor, 813 F.2d 524, 528\\n\\n(1st Cir. 1987) (declining the invitation). Nor do we here. That\\n\\nis because (among other reasons) PROMESA's instructions to the\\n\\nBoard about certification are not comparable to the types of\\n\\n\\n - 28 -\\n\\fcongressional commands that can prompt \\\"judicial review\\n\\nindependent of [statutory] review provisions.\\\" Kirby Corp. v.\\n\\nPeña, 109 F.3d 258, 269 (5th Cir. 1997) (defining the \\\"clear\\n\\nstatutory mandate\\\" exception as limited to administrative agency\\n\\nactions \\\"so contrary to the terms of the relevant statute that\\n\\n[they] necessitate[] judicial review independent of [statutory]\\n\\nreview provisions\\\"). To see this, compare the statutory rule\\n\\nviolated in Leedom v. Kyne, 358 U.S. 184 (1958), with the standards\\n\\nlaid out in PROMESA §§ 201 and 202. Kyne reviewed (without a\\n\\nstatute authorizing judicial review) a National Labor Relations\\n\\nBoard order certifying a collective bargaining unit mixing two\\n\\ntypes of employees, despite an unambiguous statutory bar on units\\n\\nmixing those employees. Id. at 185. In contrast, under § 201,\\n\\nthe Board has \\\"sole discretion\\\" to determine whether Fiscal Plans\\n\\ncomply with statutory requirements such as \\\"provide for the\\n\\nelimination of structural deficits.\\\" 48 U.S.C. § 2141(b)(1)(D);\\n\\nsee id. § 2141(b)-(c). Similarly, § 202 gives the Board\\n\\n\\\"discretion\\\" to decide whether a Territory Budget comports with a\\n\\nmultifaceted Fiscal Plan. See id. § 2142.\\n\\n Nor, finally, are appellants helped by their citations\\n\\nto McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).\\n\\nThat case allowed jurisdiction, despite a statutory bar on judicial\\n\\nreview, over a challenge to an agency's procedures under the Due\\n\\n\\n\\n\\n - 29 -\\n\\fProcess Clause. Id. at 481-84. But no federal constitutional\\n\\nclaims have been brought here.\\n\\n The district court properly dismissed the challenges to\\n\\nthe Board's certification decisions in Count II for lack of\\n\\nstatutory subject matter jurisdiction.\\n\\nC. Failure to State a Claim\\n\\n The complaint could arguably be read to allege three\\n\\nremaining theories for relief.12 First, we read it to assert that\\n\\nthe Board exceeded its authority under PROMESA §§ 204 and 205,\\n\\nwhich grant the Board powers related to legislation. See 48 U.S.C.\\n\\n§§ 2144-2145; see also Aurelius Inv., 2019 WL 642328, at *12\\n\\n(noting the Board's legislation-related powers). Second, we read\\n\\nthe complaint as alleging that the Board's decision to certify a\\n\\n\\n 12 Also remaining are two arguments made by appellants on\\nappeal but not to the district court: (1) The Board exceeded its\\nauthority under § 201 when it certified its June Fiscal Plan\\nwithout allowing the Governor another opportunity to submit a\\ncompliant Fiscal Plan. (2) The Board deliberately delayed\\ncertifying its June Fiscal Plan so that the Legislative Assembly\\nwould not have time before the start of Fiscal Year 2019 to approve\\nand submit to the Board under § 202(d)(1) a Territory Budget\\ncompliant with the Board's June Fiscal Plan. Neither argument was\\ndeveloped in the pleadings, see Rivera-Schatz, 327 F. Supp. 3d at\\n371 (cataloging other theories pled), and so we consider both\\nwaived, see, e.g., French v. Bank of N.Y. Mellon, 729 F.3d 17, 19\\nn.1 (1st Cir. 2013) (\\\"[B]elated allegations\\\" are waived.). In any\\nevent, both arguments are also inconsistent with the events of the\\nwinter, spring, and summer of 2018. The arguments overlook the\\nlineage of the Board's June Fiscal Plan: That Fiscal Plan was the\\nculmination of the formal development process and the informal\\nnegotiation process between the Governor and the Board between\\nJanuary and May. And the June Fiscal Plan was also identical, in\\nall respects relevant to this case, to the April Fiscal Plan.\\n\\n\\n - 30 -\\n\\fBoard-developed Budget that cut the Legislative Assembly's funds\\n\\nwas punitive and therefore \\\"contraven[ed] . . . the limited powers\\n\\ndelegated by Congress to the [Board].\\\" Third, we read the\\n\\ncomplaint to allege that the Board's decision to certify its Budget\\n\\nover the Legislative Assembly's impinged on the Legislative\\n\\nAssembly's power under Puerto Rico's Constitution.\\n\\n The district court chose to exercise jurisdiction over\\n\\nthese claims that the Board exceeded its authority under PROMESA,\\n\\na choice we do not evaluate,13 and to dismiss them for failure to\\n\\nstate a claim to relief. We affirm the dismissal, taking the three\\n\\nremaining arguments in turn.\\n\\n First, the complaint's assertions that the Board\\n\\nviolated §§ 204 and 205 rest on an inaccurate factual premise:\\n\\nthat the Board forced the Legislative Assembly to repeal or that\\n\\nthe Board otherwise nullified Law 80. The Board did nothing of\\n\\nthe sort; Law 80 remains on the books and the applicable Fiscal\\n\\nPlan does not call for its repeal.\\n\\n\\n\\n\\n 13 The issue of whether § 106(e) also precludes\\njurisdiction over these claims is not free from doubt, but we\\nbypass it here and assume statutory subject matter jurisdiction\\nbecause the merits of the remaining claims are quite easily\\nresolved against the party invoking our jurisdiction. See, e.g.,\\nMoriarty v. Colvin, 806 F.3d 664, 668 (1st Cir. 2015) (using\\nhypothetical jurisdiction where the sidestepped jurisdictional\\nquestion is statutory); Umstead v. Umstead, 446 F.3d 17, 20 n.2\\n(1st Cir. 2006) (citing Restoration Pres. Masonry, Inc. v. Grove\\nEur. Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003)) (same).\\n\\n\\n - 31 -\\n\\f As to § 204, the complaint alleges that the Board\\n\\n\\\"invalidate[d]\\\" Law 80 and, in doing so, exceeded its authority\\n\\nunder § 204(a) to review laws that were enacted \\\"after, rather\\n\\nthan before the [Board] became operational.\\\"14 That provision\\n\\nauthorizes the Board to review, for consistency with the governing\\n\\nFiscal Plan, legislation that \\\"a territorial government duly\\n\\nenacts . . . during any fiscal year in which the Oversight Board\\n\\nis in operation.\\\" 48 U.S.C. § 2144(a)(1). It also empowers the\\n\\nBoard to \\\"direct the territorial government to . . . correct the\\n\\nlaw to eliminate\\\" any \\\"significant[] inconsisten[cy]\\\" with the\\n\\nFiscal Plan. Id. § 2144(a)(4)(B). And if \\\"the territorial\\n\\ngovernment fails to comply with\\\" such a directive, the Board may\\n\\n\\\"take such actions as it considers necessary . . . to ensure that\\n\\nthe enactment or enforcement of the law will not adversely affect\\n\\nthe territorial government's compliance with the Fiscal Plan,\\n\\nincluding preventing enforcement or application of the law.\\\" Id.\\n\\n§ 2144(a)(5). But the Board did not \\\"prevent[] enforcement or\\n\\napplication\\\" of Law 80. Id. The complaint fails to state a claim\\n\\nto relief based on § 204.\\n\\n\\n\\n\\n 14 In his brief on appeal, Rivera-Schatz argues instead\\nthat the Board unlawfully bypassed the § 204 process in deeming\\nSenate Bill 1011 to be inconsistent with the Fiscal Plan. This\\ntheory was not raised in the complaint or otherwise before the\\ndistrict court and is therefore waived. See, e.g., French, 729\\nF.3d at 19 n.1.\\n\\n\\n - 32 -\\n\\f The complaint also fails to state a claim to relief based\\n\\non § 205. That provision allows the Board to \\\"at any time submit\\n\\nrecommendations to the Governor or the Legislature on actions the\\n\\nterritorial government may take to ensure compliance with the\\n\\nFiscal Plan.\\\" Id. § 2145(a). The Governor and the Legislative\\n\\nAssembly may then decide \\\"whether the territorial government will\\n\\nadopt the recommendations.\\\" Id. § 2145(b)(1). The complaint\\n\\nalleges that the labor reform package was a § 205 recommendation\\n\\nand that, because § 205 empowers the Legislative Assembly to reject\\n\\nsuch recommendations, the Board violated that provision in making\\n\\nthe reforms mandatory. But the Board did not impose any reforms.\\n\\nInstead, it removed the labor package from the Fiscal Plan after\\n\\nthe Legislative Assembly chose not to repeal Law 80.\\n\\n Next, the sequence of events leading to the\\n\\ncertification of the 2019 Budget refutes the second alleged theory.\\n\\nOn that theory, the complaint specifically says that, although the\\n\\nBoard lacks \\\"the power to impose penalties on Commonwealth officers\\n\\nor employees,\\\"15 the Board certified a 2019 Budget with a cut to\\n\\nthe Legislative Assembly's budget, a cut which the complaint\\n\\nalleges was a punitive response to the Legislative Assembly's\\n\\n\\n\\n 15 The complaint cites § 104(l), which subjects\\nCommonwealth officials to discipline by the Governor, not by the\\nBoard, for violation of \\\"any valid order of the Oversight Board.\\\"\\n48 U.S.C. § 2124(l). We take no position on the meaning or effect\\nof this provision.\\n\\n\\n - 33 -\\n\\fdecision not to repeal Law 80. Yet, the recommendation that the\\n\\nLegislative Assembly's budget should be reduced, along with the\\n\\nbudgets of other government entities, originated in the April\\n\\nFiscal Plan, and preceded by months the Legislative Assembly's\\n\\nactions on Law 80. Further, after the Legislative Assembly\\n\\ndeclined to repeal Law 80, the Board acted within its authority\\n\\nwhen it certified a June Fiscal Plan and 2019 Territory Budget\\n\\nthat included the previously proposed cuts to the Legislative\\n\\nAssembly's operating budget. PROMESA authorizes the Board to adopt\\n\\nFiscal Plans and Budgets incentivizing the Legislative Assembly to\\n\\nenact the Board's recommended policies and accounting for the\\n\\nLegislative Assembly's responses to those recommended policies.\\n\\nSee id. §§ 2141-2151. Indeed, it is difficult to see how, without\\n\\nsuch powers, the Board could be effective in achieving Congress's\\n\\n\\\"purpose\\\" of \\\"provid[ing] a method for [Puerto Rico] to achieve\\n\\nfiscal responsibility and access to the capital markets.\\\" Id.\\n\\n§ 2121(a) (stating Board's purpose).\\n\\n Finally, the complaint alleges that the Board's decision\\n\\nto certify its Budget over the Legislative Assembly's was an\\n\\n\\\"unlawful[] encroach[ment] upon the Legislative Assembly's\\n\\nexclusive legislative power under the Puerto Rico Constitution.\\\"\\n\\nBut PROMESA accounts for the Legislative Assembly's power under\\n\\nthe Constitution: Under PROMESA's preemption provision, the grants\\n\\nof authority to the Board at §§ 201 and 202 to approve Fiscal Plans\\n\\n\\n - 34 -\\n\\fand Budgets \\\"prevail over any general or specific provisions of\\n\\nterritory law,\\\" including provisions of Puerto Rico's Constitution\\n\\nthat are \\\"inconsistent with [PROMESA].\\\" Id. § 2103; see also\\n\\nMaldonado-Burgos, 844 F.3d at 346. PROMESA does generally reserve\\n\\n\\\"the power of [Puerto Rico] to control, by legislation or\\n\\notherwise, the territory.\\\" 48 U.S.C. § 2163. But this reservation\\n\\nof power is expressly \\\"[s]ubject to the limitations set forth in\\n\\n[Titles] I and II of [PROMESA],\\\" where §§ 201 and 202 appear. Id.\\n\\nWhen the Board certified the 2019 Fiscal Plan and Budget, then, it\\n\\nexercised authority granted to it under PROMESA.\\n\\n III.\\n\\n The judgment of the district court is affirmed. No costs\\n\\nare awarded.\\n\\n\\n\\n\\n - 35 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370542/\", \"author_raw\": \"LYNCH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"STAHL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593289/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rivera-Schatz v. FOMB\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1773\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\n\n Debtors.\n\n\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\n the House of Representatives of Puerto Rico,\n\n Plaintiff, Appellant,\n\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\n the Senate of Puerto Rico,\n\n Plaintiff,\n\n v.\n\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\n SKEEL, JR.; NATALIE A. JARESKO,\n\n Defendants, Appellees,\n\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\n\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\n ELECTRIC POWER AUTHORITY (PREPA),\n\n Debtors, Appellees.\n\n\nNo. 18-1777\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\n\n Debtors.\n\n\n\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\n the Senate of Puerto Rico,\n\n Plaintiff, Appellant,\n\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\n the House of Representatives of Puerto Rico,\n\n Plaintiff,\n\n v.\n\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\n SKEEL, JR.; NATALIE A. JARESKO,\n\n Defendants, Appellees,\n\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\n\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\n ELECTRIC POWER AUTHORITY (PREPA),\n\n Debtors, Appellees.\n\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Laura Taylor Swain,* U.S. District Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter,** Associate Justice,\n and Stahl, Circuit Judge.\n\n\n\n Israel Roldán-González for Carlos Méndez-Núñez.\n Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,\nSheila Torres-Delgado, David Rodríguez-Burns, and Aldarondo &\nLópez Bras ALB, were on brief for Thomas Rivera-Schatz.\n Timothy W. Mungovan, with whom John E. Roberts, Guy Brenner,\nMartin J. Bienenstock, Steven L. Ratner, Mark D. Harris, Kevin J.\nPerra, and Proskauer Rose LLP, were on brief, for the Financial\nOversight and Management Board for Puerto Rico; Jose B. Carrion,\nIII; Andrew G. Biggs; Carlos M. Garcia; Arthur J. Gonzalez; Jose\nR. Gonzalez; Ana J. Matosantos; David A. Skeel, Jr.; Natalie A.\nJaresko.\n\n\n February 22, 2019\n\n\n\n\n * Of the Southern District of New York, sitting by\ndesignation.\n ** Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f LYNCH, Circuit Judge. These appeals raise several\n\nquestions about the authority, under the Puerto Rico Oversight,\n\nManagement and Economic Stability Act (PROMESA), of the Financial\n\nOversight and Management Board for Puerto Rico to develop and\n\ncertify Fiscal Plans and Territory Budgets for the Commonwealth.\n\n48 U.S.C. §§ 2141-2142. In particular, this case is about the\n\n2019 Fiscal Plan and Territory Budget.\n\n The plaintiffs, the Speaker of Puerto Rico's House of\n\nRepresentatives, Carlos Méndez-Núñez, and the President of its\n\nSenate, Thomas Rivera-Schatz, in their official capacities and on\n\nbehalf of the Legislative Assembly, sued the Board, its members,\n\nand its executive director after the Board developed and certified\n\na Fiscal Plan and a Territory Budget for Fiscal Year 2019. The\n\ncomplaint alleged that the Board had made several erroneous\n\ncertification decisions and had exceeded its power under PROMESA\n\nduring the Fiscal Plan and Territory Budget development and\n\ncertification processes. It sought declaratory and injunctive\n\nrelief. The district court dismissed the complaint, in part for\n\nlack of subject matter jurisdiction and in part for failure to\n\nstate a claim. See Rivera-Schatz v. Fin. Oversight & Mgmt. Bd.\n\nfor P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 327 F. Supp.\n\n3d 364 (D.P.R. 2018). We affirm the dismissal on the same grounds.\n\n\n\n\n - 4 -\n\f I.\n\n We describe the statutory context and the relevant\n\nevents surrounding the 2019 Fiscal Plan and Territory Budget.1\n\nA. PROMESA's Basic Structure\n\n Finding Puerto Rico to be amid a \"fiscal emergency,\"\n\nCongress enacted PROMESA in 2016. See Pub. L. No. 114-187\n\n§ 405(m)(1), 130 Stat. 549, 591 (2016); see also Aurelius Inv.,\n\nLLC v. Commonwealth of P.R., Nos. 18-1671, 18-1746, 18-1787, 2019\n\nWL 642328, at *1-2 (1st Cir. Feb. 15, 2019) (recounting the origins\n\nof the emergency and the responses before PROMESA). PROMESA\n\ncreated mechanisms for restructuring the debts of U.S. territories\n\nand for overseeing reforms of their fiscal and economic policies.\n\nSee 48 U.S.C. § 2121(a) (stating this purpose). The Board,\n\nestablished \"as an entity within the territorial government\" of\n\nPuerto Rico, id. § 2121(c)(1), was empowered by PROMESA to, among\n\nother things, develop, approve, and certify Fiscal Plans and\n\nTerritory Budgets, id. §§ 2141-2142, negotiate with the\n\nCommonwealth's creditors, id. § 2146, and, under Title III, to\n\ncommence a bankruptcy-type proceeding on behalf of the\n\nCommonwealth, id. § 2175; see generally Aurelius Inv., 2019 WL\n\n\n\n 1 Because the complaint was disposed of at the motion to\ndismiss stage, we take the facts from the complaint, its\nattachments, and the motion to dismiss and its attachments. See,\ne.g., In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 14-15 (1st\nCir. 2003). There are no material disputes about this record.\n\n\n - 5 -\n\f642328, at *2-3, *11-12 (outlining key powers granted to the\n\nBoard).\n\n Congress enacted PROMESA under its Article IV \"Power to\n\ndispose of and make all needful Rules and Regulations respecting\n\nthe Territory . . . belonging to the United States.\" U.S. Const.\n\nart. IV § 3, cl. 2; see 48 U.S.C. § 2121(b)(2). Puerto Rico became\n\na U.S. territory in 1898, see Treaty of Paris, art. 9, Dec. 10,\n\n1898, 30 Stat. 1759, and is governed by a popularly elected\n\nGovernor and Legislative Assembly under a constitution adopted by\n\nPuerto Rico and approved by Congress under the Territorial Clause,\n\nsee Act of July 3, 1952, Pub. L. No. 447, ch. 567, 66 Stat. 327;\n\nsee also Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1875 (2016)\n\n(recognizing the congressional role in authorizing Puerto Rico's\n\n\"constitution-making process\" and in approving the resulting\n\nConstitution).\n\n PROMESA explicitly reserves \"the power of [Puerto Rico]\n\nto control, by legislation or otherwise, the territory,\" except as\n\nthat power is limited by Titles I and II of PROMESA. 48 U.S.C.\n\n§ 2163. In addition to that exception, PROMESA's provisions\n\npreempt any inconsistent \"general or specific provisions of\n\nterritory law,\" including provisions of Puerto Rico's\n\nConstitution. See id. § 2103; see also United States v. Maldonado-\n\nBurgos, 844 F.3d 339, 346 (1st Cir. 2016) (citing United States v.\n\nQuinones, 758 F.2d 40 (1st Cir. 1985) and then citing United States\n\n\n - 6 -\n\fv. Acosta-Martinez, 252 F.3d 13, 18 (1st Cir. 2001)) (\"[A]\n\nprovision of the Puerto Rico Constitution cannot prevail where it\n\nconflicts with applicable federal law.\").\n\n We have previously had occasion to interpret aspects of\n\nPROMESA's Title III. See Fin. Oversight & Mgmt. Bd. for P.R. v.\n\nAd Hoc Grp. of PREPA Bondholders (In re Fin. Oversight & Mgmt. Bd.\n\nfor P.R.), 899 F.3d 13, 18 (1st Cir. 2018); Peaje Invs. LLC v.\n\nGarcía-Padilla, 845 F.3d 505, 511 (1st Cir. 2017); Lex Claims, LLC\n\nv. Fin. Oversight & Mgmt. Bd., 853 F.3d 548, 552 (1st Cir. 2017);\n\nsee also Altair Glob. Credit Opportunities Fund, LLC v. The Emps.\n\nRet. Sys. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 914 F.3d\n\n694, 707 (1st Cir. 2019) (noting PROMESA's enactment). Recently,\n\nin Aurelius Investment, LLC v. Commonwealth of Puerto Rico, 2019\n\nWL 642328, at *1, this court considered the constitutionality of\n\nPROMESA's procedure for appointing Board members, see 48 U.S.C.\n\n§ 2121(e). Aurelius' holding that this procedure violates the\n\nAppointments Clause, U.S. Const. art. II, § 2, cl. 2, has no effect\n\non the \"otherwise valid actions of the Board prior to the issuance\n\nof [Aurelius'] mandate,\" and so does not impact the outcome of\n\nthese appeals, Aurelius Inv., 2019 WL 642328, at *17.\n\n At issue here are events that occurred in 2018 and\n\nquestions of first impression about Title II's provisions related\n\nto Fiscal Plans and Territory Budgets. 48 U.S.C. §§ 2141-2142.\n\nWe explain those provisions in greater detail below.\n\n\n - 7 -\n\fB. 2019 Fiscal Plan\n\n Congress intended for Fiscal Plans to provide roadmaps\n\nfor Puerto Rico \"to achieve fiscal responsibility and access to\n\nthe capital markets.\" Id. § 2141(b)(1). PROMESA § 201 grants the\n\nBoard exclusive authority to review, approve, and certify these\n\nPlans.2 See id. § 2141(c)-(e); cf. Aurelius Inv., 2019 WL 642328,\n\nat *12 (describing these and related powers and characterizing\n\nthem as \"significant\"). That section also outlines a yearly\n\nprocess, involving only the Governor and the Board, for development\n\nof Fiscal Plans. See generally 48 U.S.C. § 2141. The Legislative\n\nAssembly has a formal role in economic planning and budgeting under\n\nPROMESA, but that role is limited to the Territory Budget\n\ndevelopment process. See id. § 2142(d).\n\n\n\n 2 PROMESA does provide one path for the Governor and the\nBoard to jointly develop and certify Fiscal Plans \"that meet[] the\nrequirements under [§ 201].\" 48 U.S.C. § 2141(f). The full\nprovision reads:\n (f) Joint development of Fiscal Plan\n Notwithstanding any other provision of this\n section, if the Governor and the Oversight\n Board jointly develop a Fiscal Plan for the\n fiscal year that meets the requirements under\n this section, and that the Governor and the\n Oversight Board certify that the fiscal plan\n reflects a consensus between the Governor and\n the Oversight Board, then such Fiscal Plan\n shall serve as the Fiscal Plan for the\n territory or territorial instrumentality for\n that fiscal year.\n\nId.\n\n\n - 8 -\n\f 1. Initial Development\n\n PROMESA's prescribed process for \"[d]evelopment, review,\n\napproval, and certification of Fiscal Plans\" occurs on a schedule\n\nset by the Board, id. § 2141(c); see id. § 2141(a), and begins\n\nwith the submission of a proposed Fiscal Plan by the Governor, see\n\nid. § 2141(c) (\"The Governor shall submit to the Oversight Board\n\nany proposed Fiscal Plan . . . .\"). For 2019, the Governor sent\n\nseveral versions of his proposed Fiscal Plan to the Board between\n\nJanuary and April 2018.\n\n The Board reviewed each of these proposals, as required\n\nby § 201(c)(3), which states that \"[t]he Oversight Board shall\n\nreview any proposed Fiscal Plan to determine whether it satisfies\n\nthe requirements set forth in subsection (b).\" Id. § 2141(c)(3).\n\nContained in subsection (b) are over a dozen specific requirements.\n\nThose include \"provid[ing] for the elimination of structural\n\ndeficits\" and \"for the investments necessary to promote economic\n\ngrowth.\" Id. § 2141(b)(1)(A)–(N).3\n\n\n 3 The requirements \"set forth in\" § 201(b) are:\n (A) provide for estimates of revenues and\n expenditures in conformance with agreed\n accounting standards and be based on --\n (i) applicable laws; or\n (ii) specific bills that require\n enactment in order to reasonably achieve\n the projections of the Fiscal Plan;\n (B) ensure the funding of essential public\n services;\n (C) provide adequate funding for public\n pension systems;\n\n - 9 -\n\f Here, the Board rejected each of the Governor's proposed\n\n2019 Fiscal Plans as not satisfying § 201(b)'s requirements.4 The\n\n\n\n\n (D) provide for the elimination of structural\n deficits;\n (E) for fiscal years covered by a Fiscal Plan\n in which a stay under subchapters III or IV is\n not effective, provide for a debt burden that\n is sustainable;\n (F) improve fiscal governance,\n accountability, and internal controls;\n (G) enable the achievement of fiscal targets;\n (H) create independent forecasts of revenue\n for the period covered by the Fiscal Plan;\n (I) include a debt sustainability analysis;\n (J) provide for capital expenditures and\n investments necessary to promote economic\n growth;\n (K) adopt appropriate recommendations\n submitted by the Oversight Board under section\n 2145(a) of this title;\n (L) include such additional information as the\n Oversight Board deems necessary;\n (M) ensure that assets, funds, or resources of\n a territorial instrumentality are not loaned\n to, transferred to, or otherwise used for the\n benefit of a covered territory or another\n covered territorial instrumentality of a\n covered territory, unless permitted by the\n constitution of the territory, an approved\n plan of adjustment under subchapter III, or a\n Qualifying Modification approved under\n subchapter VI; and\n (N) respect the relative lawful priorities or\n lawful liens, as may be applicable, in the\n constitution, other laws, or agreements of a\n covered territory or covered territorial\n instrumentality in effect prior to June 30,\n 2016.\n\n48 U.S.C. § 2141(b)(1).\n 4 If the Board had determined that one of the Fiscal Plans\nproposed by the Governor did \"satisf[y] such requirements, the\n\n\n - 10 -\n\fBoard returned two of the Governor's proposals to him, as required\n\nby § 201(c)(3)(B), with \"a notice of violation that includes\n\nrecommendations for revisions to the applicable Fiscal Plan;\n\nand . . . an opportunity to correct the violation.\" Id.\n\n§ 2141(c)(3)(B). At the time the Board rejected the Governor's\n\nfinal, April 2018, proposal, the deadline for certifying a 2019\n\nFiscal Plan had passed. Under such circumstances (that is, when\n\n\"the Governor fails to submit to the Oversight Board a Fiscal Plan\n\nthat the Oversight Board determines in its sole discretion\n\nsatisfies the requirements . . . by the time specified\"), PROMESA\n\n§ 201(d)(2) provides that \"the Oversight Board shall develop and\n\nsubmit to the Governor and the Legislature a Fiscal Plan that\n\nsatisfies the requirements.\" Id. § 2141(d)(2).\n\n 2. April 19, 2018 Fiscal Plan\n\n On April 19, 2018, the Board accordingly certified a\n\n2019 Fiscal Plan that it had developed. That Fiscal Plan was\n\nautomatically \"deemed approved by the Governor\" under § 201(e)(2).\n\nSee id. § 2141(e)(2) (\"If the Oversight Board develops a Fiscal\n\nPlan under subsection (d)(2), such Fiscal Plan shall be deemed\n\napproved by the Governor . . . .\").\n\n The April Fiscal Plan incorporated many aspects of the\n\nGovernor's proposed Fiscal Plan. It also included a labor reform\n\n\nOversight Board\" would have been required to \"approve\" and certify\nthat proposed Fiscal Plan. Id. § 2141(c)(3)(A), (e)(1).\n\n\n - 11 -\n\fpackage not proposed by the Governor. This was one among a set of\n\n\"comprehensive structural reforms to the economy of Puerto Rico\"\n\nset forth in the Plan. These comprehensive reforms, to Puerto\n\nRico's labor laws, business regulations, and infrastructure (among\n\nother areas), were designed by the Board to \"revers[e] the negative\n\ntrend [of economic] growth over the last 10 years and enabl[e] the\n\nIsland to become a vibrant and productive economy going forward.\"\n\n \"[I]ncreasing labor force participation may be the\n\nsingle most important reform for long-term economic well-being in\n\nPuerto Rico,\" the April Plan stated. It identified three \"labor\n\nmarket reforms\" intended \"[t]o reduce the cost to hire and\n\nencourage job creation, including movement of informal jobs to the\n\nformal economy.\" The three \"initiatives to change labor\n\nconditions\" were: a shift to at-will employment; a \"[r]eduction of\n\nmandated paid leave, including sick leave and vacation pay;\" and\n\nan end to \"mandated Christmas bonuses.\" The called-for adoption\n\nof at-will employment required the repeal of Puerto Rico's Law No.\n\n80 of May 30, 1976, P.R. Laws Ann. tit 29 §§ 185a-185m, which bars\n\ntermination of many private-sector employees without cause.\n\n As to this first reform, the Plan noted that \"49 out of\n\n50 U.S. states are employment at-will jurisdictions, giving\n\nemployers the flexibility to dismiss an employee without having to\n\nfirst prove just cause.\" It acknowledged that \"some employees\n\nbenefit from Puerto Rico's lack of at-will employment\" but credited\n\n\n - 12 -\n\fevidence that for-cause employment \"makes it more costly and risky\n\nnot only to dismiss, but also to hire, an employee.\" \"For\n\nexample,\" the Plan summarized, \"studies have found that laws\n\npreventing unfair dismissal caused reductions in employment,\n\nparticularly in labor-intensive industries.\" It concluded that\n\nswitching to at-will employment \"will lower the cost and risk of\n\nhiring in Puerto Rico.\"\n\n The Plan quantified the impact of the labor reform\n\npackage on the Commonwealth's annual budget surplus over thirty\n\nyears. It projected that, with the adoption of at-will employment,\n\nPuerto Rico would have a $39 billion cumulative surplus over that\n\nperiod, compared with a $2 billion cumulative surplus without the\n\nenactment of at-will employment.\n\n The April Fiscal Plan also cut the operating budget of\n\nthe Puerto Rican Legislative Assembly. These \"reductions for the\n\nLegislative Assembly\" were \"informed by benchmarking against other\n\nfull-time legislatures\" in the United States, the Plan explained.\n\nThe Puerto Rican Legislative Assembly's expenditure in Fiscal Year\n\n2018 was about 300% greater than the (population-weighted)\n\nnational average of full-time U.S. legislatures, according to an\n\nanalysis by the Board of publicly available data.5 The Plan stated\n\n\n\n\n 5 This analysis appeared in the Board's motion to dismiss.\n\n\n - 13 -\n\fthat these reductions would achieve \"reinvestment savings\" of\n\nbetween $23.6 and $25 million per year for the next five years.\n\n 3. May 30, 2018 Fiscal Plan\n\n The Governor and the Board continued negotiating about\n\nthe labor reform package and other matters after the April Fiscal\n\nPlan had been certified. Eventually, the Board agreed to certify\n\na revised Fiscal Plan that it had developed. It did so on May 30,\n\n2018. Two aspects of the Board's May Fiscal Plan are relevant to\n\nthese appeals.\n\n First, the May Fiscal Plan provided for a shift to\n\nat-will employment. Specifically:\n\n The Legislature shall introduce and the\n Governor shall sign a bill that repeals Act\n No. 80 . . . on or before June 27, 2018, which\n shall become effective on or before January 1,\n 2019. . . . The Bill shall state that, for\n the avoidance of doubt, an employee hired for\n an indefinite period of time does not have a\n cause of action against their employer merely\n for the employer's termination of the\n employment relation.\n\nThat is, the government of Puerto Rico would repeal Law 80 and\n\nclarify that employment is at will.\n\n Second, the cut to the Legislative Assembly's budget was\n\nremoved from the May version of the Fiscal Plan. In addition,\n\ncuts to the budget of the judiciary included in the April Fiscal\n\nPlan were \"reduced by half each year\" in the May version, a change\n\nthat increased the court system's budget by up to $23 million per\n\n\n\n\n - 14 -\n\fyear over what had been budgeted in the April version. According\n\nto a statement of understanding between the Governor and the Board,\n\nthese operating budgets were to \"be revisited annually,\" and these\n\nfunding levels were made contingent on Puerto Rico's \"compliance\n\nwith the then-applicable fiscal plan.\" That is, the May Fiscal\n\nPlan stated that the allocations for the Legislative Assembly and\n\nthe judiciary\n\n are pursuant to Puerto Rico becoming an\n employment at-will jurisdiction by repealing\n Law 80 of May 30, 1976 on or before June 27,\n 2018 . . . . If the repeal does not occur,\n none of these changes and alterations [to the\n Legislative Assembly's and the judiciary's\n budgets] shall be implemented.\n\n The Legislative Assembly did not repeal Law 80. Instead,\n\nthe day the Board certified the May Fiscal Plan, May 30, Puerto\n\nRico's Senate passed Senate Bill 1011, which made at-will\n\nemployment the rule for employees hired after the date of the\n\nbill's enactment, while retaining Law 80's for-cause rule for those\n\nalready employed.6\n\n The House of Representatives immediately began\n\nconsidering Senate Bill 1011. Recognizing that the bill did not\n\n\n\n\n 6 The Senate also studied a labor reform bill that the\nBoard had drafted based on the April Fiscal Plan. Based on\ntestimony from experts and a review of studies, a Senate committee\npenned a report in July 2018 rejecting the proposed bill and\nstating that the bill's reforms, including at-will employment,\n\"have not had a positive or significant impact in [other] economies\nwhere similar . . . reforms have been implemented.\"\n\n\n - 15 -\n\ffully repeal Law 80, the President of the House Government Affairs\n\nCommittee sent a letter to the Board asking about the \"effect on\n\nthe Fiscal Plan and the budget to be certified by the Financial\n\nOversight Board\" were the House to pass Senate Bill 1011. The\n\nBoard responded that same day, June 4, that, if the Legislative\n\nAssembly \"fails to comply exactly with the understanding reached\n\nwith the Oversight Board concerning the repeal of Law 80, the\n\nOversight Board will amend the Fiscal Plan and Budget to,\" among\n\nother things, \"[m]aintain the cuts to the budgets of the\n\nLegislature and Judiciary as outlined in the April 19 Fiscal Plan.\"\n\nTen days later, on June 14, the House passed Senate Bill 1011.\n\nThe parties agree that Senate Bill 1011 never became law; the\n\nrecord does not explain why.\n\n 4. June 29, 2018 Fiscal Plan\n\n On June 29, 2018, the Board informed the Governor and\n\nthe Legislative Assembly by letter that it was certifying a new\n\nFiscal Plan. As had been promised in the May Fiscal Plan and in\n\nthe Board's June 4 letter, the Board's June Fiscal Plan funded the\n\njudiciary and the Legislative Assembly at the levels stated in the\n\nApril Plan. The letter explained, \"Unfortunately, we now know\n\nthat the Government of Puerto Rico will not implement the [May]\n\nFiscal Plan in full because the Legislature . . . failed to pass\n\nthe most important component of the Labor Reform Package -- the\n\n\n\n\n - 16 -\n\frepeal of Law 80 and turning Puerto Rico into an at-will employment\n\njurisdiction.\"\n\n The labor reform package was absent from the Board's\n\nJune Fiscal Plan, certified June 29, 2018. On that subject, the\n\nJune Plan stated the following:\n\n [W]hile successful human capital and welfare\n reforms would have been projected to generate\n approximately $39 billion in additional\n revenues by FY2048 and over ~$320 million from\n FY2018-FY2023, the Legislature's demonstrated\n noncompliance with the comprehensive labor\n reform requirements of previous fiscal plans\n has forced the removal of these projected\n revenues from the New Fiscal Plan.\n\nC. 2019 Territory Budget\n\n PROMESA § 202 grants the Board exclusive authority to\n\nreview, approve, and certify Territory Budgets. See 48 U.S.C.\n\n§ 2142; see also Aurelius Inv., 2019 WL 642328, at *12 (recognizing\n\nthe Board's \"significant\" power to approve and reject Commonwealth\n\nbudgets). The Legislative Assembly's only responsibility under\n\n§ 202 is to \"submit to the Oversight Board the Territory Budget\n\nadopted by the Legislature.\" 48 U.S.C. § 2142(d)(1).\n\n For 2019, the Legislative Assembly did this on June 30,\n\n2018, the day before the start of the Fiscal Year. Earlier that\n\nday, the Legislature had approved an $8,708,623,000 Commonwealth\n\nbudget (which the Governor later signed).\n\n Also on June 30, the Board determined that the\n\nLegislative Assembly's Budget was non-compliant with the\n\n\n\n - 17 -\n\fBoard-certified June Fiscal Plan.7 The Legislative Assembly's\n\n$84,275,000 combined allocation for Puerto Rico's House of\n\nRepresentatives ($45,470,000) and Senate ($38,805,000) matched the\n\nbudget for the Legislative Assembly under the Board's May Fiscal\n\nPlan but exceeded the reduced allocation in the June Plan.\n\n The Board then immediately certified a Territory Budget\n\nit had developed totaling $8,757,524,000. Of this, and consistent\n\nwith the June Fiscal Plan, $65,292,000 was allocated to the\n\nLegislative Assembly ($35,228,000 to the House and $30,064,000 to\n\nthe Senate). In developing and certifying this Budget, the Board\n\nrelied on its authority under § 202(e)(3). That provision\n\nprovides:\n\n If the Governor and the Legislature fail to\n develop and approve a Territory Budget that is\n a compliant budget by the day before the first\n day of the fiscal year for which the Territory\n Budget is being developed, the Oversight Board\n shall submit a Budget to the Governor and the\n Legislature . . . and such Budget shall be --\n (A) deemed to be approved by the Governor\n and the Legislature; . . .\n (C) in full force and effect beginning on\n the first day of the applicable fiscal\n year.\n\n\n\n\n 7 If the Board had deemed this \"adopted Territory Budget\"\nto be compliant with the Fiscal Plan, then the Oversight Board\nwould have been required to \"issue a compliance certification for\nsuch compliant budget.\" 48 U.S.C. § 2142(d)(1)(A).\n\n\n - 18 -\n\fId. § 2142(e)(3).8 By operation of law, then, the Board's 2019\n\nTerritory Budget went into effect.\n\nD. Procedural History\n\n On July 9, plaintiffs filed their complaint against the\n\nBoard seeking the following relief:9 (1) a declaration \"that the\n\nrejected policy recommendations in the Fiscal Plan are non-binding\n\nrecommendations, and that the Legislative Assembly cannot be\n\ncompelled to implement any of those policies, and the [Board] may\n\nnot take any actions to force compliance with such\n\nrecommendations;\" (2) a declaration that the Territory Budget\n\ncertified by the Board \"is null and void;\" and (3) an injunction\n\n\"prohibiting the defendants from implementing and enforcing\" the\n\nBoard-developed and certified Budget and \"reinstat[ing]\" the\n\nBudget adopted by the Legislative Assembly. We describe the pled\n\ntheories for relief in the analysis.\n\n Defendants moved to dismiss the complaint for lack of\n\nsubject matter jurisdiction and for failure to state a claim to\n\nrelief, and the district court granted the motion. Rivera-Schatz,\n\n\n 8 Had these events occurred before \"the day before the\nfirst day of the fiscal year\" and had the Board determined that\nthe submitted Budget was not compliant, then PROMESA says that\n\"the Oversight Board shall provide to the Legislature -- (i) a\nnotice of violation that includes a description of any necessary\ncorrective action; and (ii) an opportunity to correct the\nviolation.\" 48 U.S.C. § 2142(d)(1)(B).\n 9 The complaint was filed in the District of Puerto Rico\nin the Commonwealth's ongoing case under Title III of PROMESA.\n\n\n - 19 -\n\f327 F. Supp. 3d at 369-71. The court first held that the request\n\nfor a declaration about Fiscal Plan recommendations did not rest\n\non a proper Article III case or controversy, and it dismissed that\n\nrequest, which appeared in Paragraph 79 of the complaint, for lack\n\nof subject matter jurisdiction. Id. at 370-71. Next, in\n\ndismissing the remaining declaratory- and injunctive-relief\n\nclaims, the district court gave two reasons. To the extent those\n\nclaims directly challenged the Board's budget certification\n\ndecisions, the district court dismissed them for lack of subject\n\nmatter jurisdiction, relying on PROMESA § 106(e). Id. at 371.\n\nThat provision states that \"[t]here shall be no jurisdiction in\n\nany United States district court to review challenges to the\n\nOversight Board's certification determinations under [PROMESA].\"\n\n48 U.S.C. § 2126(e); see Rivera-Schatz, 327 F. Supp. 3d at 371.\n\nTo the extent that the remaining claims challenged the Board's\n\nactions as exceeding its authority under PROMESA or as encroaching\n\non the Legislative Assembly's power under Puerto Rico's\n\nConstitution, the district court dismissed them for failure to\n\nstate a claim. Rivera-Schatz, 327 F. Supp. 3d at 372-73.\n\n II.\n\n We review the district court's grant of the motion to\n\ndismiss de novo. See, e.g., Flores v. OneWest Bank, F.S.B., 886\n\nF.3d 160, 162 (1st Cir. 2018). In doing so, we analyze the issues\n\nwithin the basic three-part framework outlined by the district\n\n\n - 20 -\n\fcourt, considering first the request for a declaration about Fiscal\n\nPlan recommendations, and then the declaratory- and injunctive-\n\nrelief claims about the 2019 Budget.\n\n We affirm the district court's grounds for dismissal.\n\nFirst, the federal courts lack Article III jurisdiction over the\n\ncomplaint's request for a declaration about Fiscal Plan\n\nrecommendations. Second, the district court correctly concluded\n\nthat, under § 106(e), it lacked jurisdiction to review alleged\n\nerrors in the Board's certification determinations. Third, the\n\ncomplaint fails to state a claim to relief on the theory that the\n\nBoard exceeded its authority under PROMESA during the 2019 Fiscal\n\nPlan and Territorial Budget processes.\n\n The Board defends these grounds. It does not challenge\n\nthe district court's reading of § 106(e), and we do not engage\n\nthat topic.\n\nA. Article III Jurisdiction\n\n Count I of the complaint alleges that \"PROMESA does not\n\nallow the [Board] to bypass or usurp the Legislative Assembly's\n\nlegislative power\" by \"set[ting] forth the Commonwealth's public\n\npolicy\" as to \"the rights of employees in Puerto Rico.\" The Board\n\ndid just that, the complaint asserts, \"when it tried to force the\n\nLegislative Assembly to pass a bill retroactively repealing Law 80\n\nas a condition to approve the Commonwealth's budget.\" And when\n\nthe Legislative Assembly declined to repeal Law 80, the complaint\n\n\n - 21 -\n\fsays, the Board \"punished it by imposing severe cuts in its\n\noperational budget.\" Based on those allegations, Paragraph 79 of\n\nthe complaint says:\n\n Plaintiffs are therefore entitled to a\n judicial declaration under [the Declaratory\n Judgment Act] . . . that the rejected policy\n recommendations in the Fiscal Plan are\n non-binding recommendations, and that the\n Legislative Assembly cannot be compelled to\n implement any of those policies, and the\n [Board] may not take any actions to force\n compliance with such recommendations.\n\nThe federal courts lack Article III jurisdiction over Paragraph\n\n79's request.\n\n The Declaratory Judgment Act allows \"any court of the\n\nUnited States\" to \"declare the rights and other legal relations of\n\nany interested party seeking such declaration, whether or not\n\nfurther relief is or could be sought,\" but only \"[i]n a case of\n\nactual controversy within [that court's] jurisdiction.\" 28 U.S.C.\n\n§ 2201(a). As the Supreme Court has explained, \"the phrase 'case\n\nof actual controversy' in the Act refers to the type of 'Cases'\n\nand 'Controversies' that are justiciable under Article III.\"\n\nMedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)\n\n(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)).\n\nAlthough there is not \"the brightest of lines between those\n\ndeclaratory-judgment actions that satisfy the case-or-controversy\n\nrequirement and those that do not,\" id., \"[b]asically, the question\n\nin each case is whether the facts alleged, under all the\n\n\n - 22 -\n\fcircumstances, show that there is a substantial controversy,\n\nbetween parties having adverse legal interests, of sufficient\n\nimmediacy and reality to warrant the issuance of a declaratory\n\njudgment,\" Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,\n\n273 (1941).\n\n This standard cannot be satisfied if Paragraph 79 is\n\nread to request a declaration about the rights of the Board and\n\nthe Legislative Assembly whenever there is disagreement about\n\nwhether to implement a Fiscal Plan policy included by the Board.10\n\nThat would be a request for an advisory opinion about the import\n\nof Fiscal Plans under PROMESA.\n\n Appellants' attempts to read into Paragraph 79 a\n\njusticiable dispute with definite legal and factual dimensions\n\nfare no better under Article III's standard. The request cannot\n\nbe made justiciable by defining the \"rejected policy\n\nrecommendations\" as the labor reform package introduced in the\n\n\n\n 10 The district court observed that \"recommendations\" could\nrefer to \"the concept of 'recommendations' under Section 205 of\nPROMESA.\" Rivera-Schatz, 327 F. Supp. 3d at 370. Section 205\nallows the Board to make policy recommendations to the Governor or\nthe Legislative Assembly \"at any time\" and provides a procedure\nfor \"the territorial government\" to adopt or reject the\nrecommendations. 48 U.S.C. § 2145. In his brief, Méndez-Núñez,\nthe House Speaker, alludes to this reading. We agree with the\ndistrict court that, if Paragraph 79 refers to § 205\nrecommendations in the abstract, that paragraph requests an\nadvisory opinion about the \"meaning and effect of a section of the\nstatute,\" and we lack Article III jurisdiction. Rivera-Schatz,\n327 F. Supp. 3d at 371.\n\n\n - 23 -\n\fApril Fiscal Plan, as Rivera-Schatz, the Senate President, does in\n\nhis brief. Under this reading of Paragraph 79, the dispute lacks\n\nthe requisite reality: The currently certified Fiscal Plan does\n\nnot include the objected-to labor reforms, which were removed\n\nbefore the June version. To provide the declarations, then, would\n\nrequire a court to imagine a set of labor reforms into the Fiscal\n\nPlan and to predict the Board and the Legislative Assembly's\n\nreactive moves and counter-moves. The resulting declaration would\n\nbe an impermissible \"opinion advising what the law would be upon\n\na hypothetical state of facts.\" Aetna, 300 U.S. at 241.\n\n Appellants cannot get around this by reading Paragraph\n\n79 to request a declaration about the April or May Fiscal Plans\n\nand the ensuing actions of the Legislative Assembly and the Board.\n\nSuch a request would still be one for an advisory opinion, as past\n\ndifferences are not amenable to the type of relief that Article\n\nIII allows courts to give -- \"decree[s] of a conclusive character\"\n\nadjudicating adverse parties' actual rights and interests. Aetna,\n\n300 U.S. at 241; cf. Hall v. Beals, 396 U.S. 45, 48 (1969) (holding\n\nthat an amendment to the challenged statute eliminated any\n\n\"controversy of the kind that must exist if we are to avoid\n\nadvisory opinions\").\n\n Nor can the request be made justiciable by reading\n\nParagraph 79 to request a declaration on disputes that the\n\nappellants say are likely to arise under future Fiscal Plans. In\n\n\n - 24 -\n\fDeclaratory Judgment Act cases where jurisdiction is exercised\n\nbased on a threat of future injury, the potential injury is\n\ntypically legal liability on a set of already defined facts,11 so\n\nthat the Act merely \"defin[es] procedure\" to enable judicial\n\nresolution of a case or controversy that might otherwise be\n\nadjudicated at a different time or in a slightly different form.\n\nSee Aetna, 300 U.S. at 240. That is not this request. Whatever\n\nfuture disputes may arise have not yet been and may never be\n\nadequately framed by their factual dimensions. See Texas v. United\n\nStates, 523 U.S. 296, 300 (1998) (stating that a dispute is not\n\njusticiable \"if it rests upon 'contingent future events that may\n\nnot occur as anticipated, or indeed may not occur at all'\" (quoting\n\nThomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81\n\n(1985))). Declaratory claims based on abstractions are not\n\njusticiable under Article III. See Int'l Longshoremen's &\n\nWarehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 224 (1954)\n\n(\"Determination of the scope . . . of legislation\" on fictional\n\nfacts \"involves too remote and abstract an inquiry for the proper\n\nexercise of the judicial function.\").\n\n\n\n\n 11 See, e.g., Steffel v. Thompson, 415 U.S. 452, 475 (1974)\n(exercising jurisdiction over pre-prosecution challenge to\ncriminal statute); MedImmune, 549 U.S. at 137 (recognizing Article\nIII jurisdiction over declaratory claims based on threatened\nprivate enforcement action).\n\n\n - 25 -\n\fB. Statutory Subject Matter Jurisdiction\n\n The complaint also seeks a declaration that the June\n\nBudget certified by the Board \"is null and void\" and an injunction\n\n\"prohibiting the defendants from implementing and enforcing\" the\n\nBoard-developed and certified Budget and \"reinstat[ing]\" the\n\nLegislative Assembly's Budget. In support of this, Count II of\n\nthe complaint outlines a theory that the Board erred in determining\n\nthat Senate Bill 1011 did not conform with the May Fiscal Plan.\n\nThis error, Count II asserts, led the Board to a second erroneous\n\ndetermination that the June Fiscal Plan should be certified, then\n\nto a third erroneous determination that the Legislative Assembly's\n\nBudget should not be certified because it did not comply with the\n\nJune Fiscal Plan, and finally to a fourth erroneous determination\n\nthat the Board-developed Budget should be certified. The district\n\ncourt held that it lacked jurisdiction under § 106(e) over the\n\nclaims that rested on Count II's allegations. See Rivera-Schatz,\n\n327 F. Supp. 3d at 371.\n\n We agree. PROMESA grants the Board exclusive authority\n\nto certify Fiscal Plans and Territory Budgets for Puerto Rico. It\n\nthen insulates those certification decisions from judicial review\n\nin § 106(e): \"There shall be no jurisdiction in any United States\n\ndistrict court to review challenges to the Oversight Board's\n\ncertification determinations under this chapter.\" 48 U.S.C.\n\n§ 2126(e). Section 106(e) is an exception to PROMESA's general\n\n\n - 26 -\n\fgrant of jurisdiction at § 106(a), which provides that \"any action\n\nagainst the Oversight Board, and any action otherwise arising out\n\nof this chapter, in whole or in part, shall be brought in a United\n\nStates district court for the covered territory.\" Id. § 2126(a).\n\n Count II of the complaint alleges four unreviewable\n\nBoard errors in \"certification determinations under this chapter.\"\n\nId. § 2126(e). The district court was correct that it lacked\n\njurisdiction to review the Board's determination that the passage\n\nof Senate Bill 1011 was inconsistent with the May Fiscal Plan's\n\nrequirement to repeal Law 80. That determination was the basis\n\nfor the Board's decision to certify, under § 201(e)(2), the June\n\nFiscal Plan. And § 106(e) bars district courts from reviewing the\n\nreasons for certification determinations as much as the\n\ncertification determinations themselves. Nor did the district\n\ncourt have jurisdiction to review whether the Board erred in\n\ndeeming the Legislative Assembly's Budget non-compliant with the\n\napplicable Fiscal Plan and in certifying instead a Board-developed\n\nTerritory Budget. These decisions, which § 202 expressly empowers\n\nthe Board to make, see id. § 2142(d)-(e), are prototypical\n\n\"certification determinations under this chapter,\" id. § 2126(e).\n\n Rivera-Schatz's argument that the Board's determinations\n\nabout Territory Budgets adopted by the Legislative Assembly are\n\nreviewable runs headlong into the text of § 106(e). His argument\n\nrests on the following attempted contrast of §§ 201 and 202: § 201\n\n\n - 27 -\n\fstates that the Board has \"sole discretion\" to determine whether\n\nto certify a Fiscal Plan or a Budget proposed by the Governor, see\n\nid. § 2141(c)(3), (c)(1), while § 202 does not use the phrase \"sole\n\ndiscretion\" in granting the Board authority to \"determine whether\n\nthe [Legislature-]adopted Territory Budget is a compliant budget,\"\n\nid. § 2142(d)(1). From this, Rivera-Schatz asks us to infer first\n\nthat the Board's authority to make determinations about\n\nLegislature-adopted Budgets is non-exclusive. Rivera-Schatz urges\n\nthat a second inference -- that such determinations are subject to\n\njudicial review -- follows. Section 106(e)'s text forecloses\n\nthese inferences. It plainly bars judicial review of \"challenges\n\nto the Oversight Board's certification determinations.\" Id.\n\n§ 2126(e). It does not distinguish among the various certification\n\ndeterminations that PROMESA commits to the Board.\n\n Appellants next argue, by analogy to a doctrine of\n\nadministrative law, that the challenged certification\n\ndeterminations are reviewable, despite § 106(e)'s jurisdictional\n\nprohibition, because the Board's actions violated clear statutory\n\ndirectives in §§ 201 and 202. This court has never recognized\n\nsuch an exception to any statutory provision explicitly precluding\n\njudicial review. Cf. Paluca v. Sec'y of Labor, 813 F.2d 524, 528\n\n(1st Cir. 1987) (declining the invitation). Nor do we here. That\n\nis because (among other reasons) PROMESA's instructions to the\n\nBoard about certification are not comparable to the types of\n\n\n - 28 -\n\fcongressional commands that can prompt \"judicial review\n\nindependent of [statutory] review provisions.\" Kirby Corp. v.\n\nPeña, 109 F.3d 258, 269 (5th Cir. 1997) (defining the \"clear\n\nstatutory mandate\" exception as limited to administrative agency\n\nactions \"so contrary to the terms of the relevant statute that\n\n[they] necessitate[] judicial review independent of [statutory]\n\nreview provisions\"). To see this, compare the statutory rule\n\nviolated in Leedom v. Kyne, 358 U.S. 184 (1958), with the standards\n\nlaid out in PROMESA §§ 201 and 202. Kyne reviewed (without a\n\nstatute authorizing judicial review) a National Labor Relations\n\nBoard order certifying a collective bargaining unit mixing two\n\ntypes of employees, despite an unambiguous statutory bar on units\n\nmixing those employees. Id. at 185. In contrast, under § 201,\n\nthe Board has \"sole discretion\" to determine whether Fiscal Plans\n\ncomply with statutory requirements such as \"provide for the\n\nelimination of structural deficits.\" 48 U.S.C. § 2141(b)(1)(D);\n\nsee id. § 2141(b)-(c). Similarly, § 202 gives the Board\n\n\"discretion\" to decide whether a Territory Budget comports with a\n\nmultifaceted Fiscal Plan. See id. § 2142.\n\n Nor, finally, are appellants helped by their citations\n\nto McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).\n\nThat case allowed jurisdiction, despite a statutory bar on judicial\n\nreview, over a challenge to an agency's procedures under the Due\n\n\n\n\n - 29 -\n\fProcess Clause. Id. at 481-84. But no federal constitutional\n\nclaims have been brought here.\n\n The district court properly dismissed the challenges to\n\nthe Board's certification decisions in Count II for lack of\n\nstatutory subject matter jurisdiction.\n\nC. Failure to State a Claim\n\n The complaint could arguably be read to allege three\n\nremaining theories for relief.12 First, we read it to assert that\n\nthe Board exceeded its authority under PROMESA §§ 204 and 205,\n\nwhich grant the Board powers related to legislation. See 48 U.S.C.\n\n§§ 2144-2145; see also Aurelius Inv., 2019 WL 642328, at *12\n\n(noting the Board's legislation-related powers). Second, we read\n\nthe complaint as alleging that the Board's decision to certify a\n\n\n 12 Also remaining are two arguments made by appellants on\nappeal but not to the district court: (1) The Board exceeded its\nauthority under § 201 when it certified its June Fiscal Plan\nwithout allowing the Governor another opportunity to submit a\ncompliant Fiscal Plan. (2) The Board deliberately delayed\ncertifying its June Fiscal Plan so that the Legislative Assembly\nwould not have time before the start of Fiscal Year 2019 to approve\nand submit to the Board under § 202(d)(1) a Territory Budget\ncompliant with the Board's June Fiscal Plan. Neither argument was\ndeveloped in the pleadings, see Rivera-Schatz, 327 F. Supp. 3d at\n371 (cataloging other theories pled), and so we consider both\nwaived, see, e.g., French v. Bank of N.Y. Mellon, 729 F.3d 17, 19\nn.1 (1st Cir. 2013) (\"[B]elated allegations\" are waived.). In any\nevent, both arguments are also inconsistent with the events of the\nwinter, spring, and summer of 2018. The arguments overlook the\nlineage of the Board's June Fiscal Plan: That Fiscal Plan was the\nculmination of the formal development process and the informal\nnegotiation process between the Governor and the Board between\nJanuary and May. And the June Fiscal Plan was also identical, in\nall respects relevant to this case, to the April Fiscal Plan.\n\n\n - 30 -\n\fBoard-developed Budget that cut the Legislative Assembly's funds\n\nwas punitive and therefore \"contraven[ed] . . . the limited powers\n\ndelegated by Congress to the [Board].\" Third, we read the\n\ncomplaint to allege that the Board's decision to certify its Budget\n\nover the Legislative Assembly's impinged on the Legislative\n\nAssembly's power under Puerto Rico's Constitution.\n\n The district court chose to exercise jurisdiction over\n\nthese claims that the Board exceeded its authority under PROMESA,\n\na choice we do not evaluate,13 and to dismiss them for failure to\n\nstate a claim to relief. We affirm the dismissal, taking the three\n\nremaining arguments in turn.\n\n First, the complaint's assertions that the Board\n\nviolated §§ 204 and 205 rest on an inaccurate factual premise:\n\nthat the Board forced the Legislative Assembly to repeal or that\n\nthe Board otherwise nullified Law 80. The Board did nothing of\n\nthe sort; Law 80 remains on the books and the applicable Fiscal\n\nPlan does not call for its repeal.\n\n\n\n\n 13 The issue of whether § 106(e) also precludes\njurisdiction over these claims is not free from doubt, but we\nbypass it here and assume statutory subject matter jurisdiction\nbecause the merits of the remaining claims are quite easily\nresolved against the party invoking our jurisdiction. See, e.g.,\nMoriarty v. Colvin, 806 F.3d 664, 668 (1st Cir. 2015) (using\nhypothetical jurisdiction where the sidestepped jurisdictional\nquestion is statutory); Umstead v. Umstead, 446 F.3d 17, 20 n.2\n(1st Cir. 2006) (citing Restoration Pres. Masonry, Inc. v. Grove\nEur. Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003)) (same).\n\n\n - 31 -\n\f As to § 204, the complaint alleges that the Board\n\n\"invalidate[d]\" Law 80 and, in doing so, exceeded its authority\n\nunder § 204(a) to review laws that were enacted \"after, rather\n\nthan before the [Board] became operational.\"14 That provision\n\nauthorizes the Board to review, for consistency with the governing\n\nFiscal Plan, legislation that \"a territorial government duly\n\nenacts . . . during any fiscal year in which the Oversight Board\n\nis in operation.\" 48 U.S.C. § 2144(a)(1). It also empowers the\n\nBoard to \"direct the territorial government to . . . correct the\n\nlaw to eliminate\" any \"significant[] inconsisten[cy]\" with the\n\nFiscal Plan. Id. § 2144(a)(4)(B). And if \"the territorial\n\ngovernment fails to comply with\" such a directive, the Board may\n\n\"take such actions as it considers necessary . . . to ensure that\n\nthe enactment or enforcement of the law will not adversely affect\n\nthe territorial government's compliance with the Fiscal Plan,\n\nincluding preventing enforcement or application of the law.\" Id.\n\n§ 2144(a)(5). But the Board did not \"prevent[] enforcement or\n\napplication\" of Law 80. Id. The complaint fails to state a claim\n\nto relief based on § 204.\n\n\n\n\n 14 In his brief on appeal, Rivera-Schatz argues instead\nthat the Board unlawfully bypassed the § 204 process in deeming\nSenate Bill 1011 to be inconsistent with the Fiscal Plan. This\ntheory was not raised in the complaint or otherwise before the\ndistrict court and is therefore waived. See, e.g., French, 729\nF.3d at 19 n.1.\n\n\n - 32 -\n\f The complaint also fails to state a claim to relief based\n\non § 205. That provision allows the Board to \"at any time submit\n\nrecommendations to the Governor or the Legislature on actions the\n\nterritorial government may take to ensure compliance with the\n\nFiscal Plan.\" Id. § 2145(a). The Governor and the Legislative\n\nAssembly may then decide \"whether the territorial government will\n\nadopt the recommendations.\" Id. § 2145(b)(1). The complaint\n\nalleges that the labor reform package was a § 205 recommendation\n\nand that, because § 205 empowers the Legislative Assembly to reject\n\nsuch recommendations, the Board violated that provision in making\n\nthe reforms mandatory. But the Board did not impose any reforms.\n\nInstead, it removed the labor package from the Fiscal Plan after\n\nthe Legislative Assembly chose not to repeal Law 80.\n\n Next, the sequence of events leading to the\n\ncertification of the 2019 Budget refutes the second alleged theory.\n\nOn that theory, the complaint specifically says that, although the\n\nBoard lacks \"the power to impose penalties on Commonwealth officers\n\nor employees,\"15 the Board certified a 2019 Budget with a cut to\n\nthe Legislative Assembly's budget, a cut which the complaint\n\nalleges was a punitive response to the Legislative Assembly's\n\n\n\n 15 The complaint cites § 104(l), which subjects\nCommonwealth officials to discipline by the Governor, not by the\nBoard, for violation of \"any valid order of the Oversight Board.\"\n48 U.S.C. § 2124(l). We take no position on the meaning or effect\nof this provision.\n\n\n - 33 -\n\fdecision not to repeal Law 80. Yet, the recommendation that the\n\nLegislative Assembly's budget should be reduced, along with the\n\nbudgets of other government entities, originated in the April\n\nFiscal Plan, and preceded by months the Legislative Assembly's\n\nactions on Law 80. Further, after the Legislative Assembly\n\ndeclined to repeal Law 80, the Board acted within its authority\n\nwhen it certified a June Fiscal Plan and 2019 Territory Budget\n\nthat included the previously proposed cuts to the Legislative\n\nAssembly's operating budget. PROMESA authorizes the Board to adopt\n\nFiscal Plans and Budgets incentivizing the Legislative Assembly to\n\nenact the Board's recommended policies and accounting for the\n\nLegislative Assembly's responses to those recommended policies.\n\nSee id. §§ 2141-2151. Indeed, it is difficult to see how, without\n\nsuch powers, the Board could be effective in achieving Congress's\n\n\"purpose\" of \"provid[ing] a method for [Puerto Rico] to achieve\n\nfiscal responsibility and access to the capital markets.\" Id.\n\n§ 2121(a) (stating Board's purpose).\n\n Finally, the complaint alleges that the Board's decision\n\nto certify its Budget over the Legislative Assembly's was an\n\n\"unlawful[] encroach[ment] upon the Legislative Assembly's\n\nexclusive legislative power under the Puerto Rico Constitution.\"\n\nBut PROMESA accounts for the Legislative Assembly's power under\n\nthe Constitution: Under PROMESA's preemption provision, the grants\n\nof authority to the Board at §§ 201 and 202 to approve Fiscal Plans\n\n\n - 34 -\n\fand Budgets \"prevail over any general or specific provisions of\n\nterritory law,\" including provisions of Puerto Rico's Constitution\n\nthat are \"inconsistent with [PROMESA].\" Id. § 2103; see also\n\nMaldonado-Burgos, 844 F.3d at 346. PROMESA does generally reserve\n\n\"the power of [Puerto Rico] to control, by legislation or\n\notherwise, the territory.\" 48 U.S.C. § 2163. But this reservation\n\nof power is expressly \"[s]ubject to the limitations set forth in\n\n[Titles] I and II of [PROMESA],\" where §§ 201 and 202 appear. Id.\n\nWhen the Board certified the 2019 Fiscal Plan and Budget, then, it\n\nexercised authority granted to it under PROMESA.\n\n III.\n\n The judgment of the district court is affirmed. No costs\n\nare awarded.\n\n\n\n\n - 35 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rivera-Schatz v. FOMB\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1773\\n\\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\\n\\n Debtors.\\n\\n\\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\\n the House of Representatives of Puerto Rico,\\n\\n Plaintiff, Appellant,\\n\\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\\n the Senate of Puerto Rico,\\n\\n Plaintiff,\\n\\n v.\\n\\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\\n SKEEL, JR.; NATALIE A. JARESKO,\\n\\n Defendants, Appellees,\\n\\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\\n\\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\\n ELECTRIC POWER AUTHORITY (PREPA),\\n\\n Debtors, Appellees.\\n\\n\\nNo. 18-1777\\n\\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\\n\\n Debtors.\\n\\n\\n\\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\\n the Senate of Puerto Rico,\\n\\n Plaintiff, Appellant,\\n\\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\\n the House of Representatives of Puerto Rico,\\n\\n Plaintiff,\\n\\n v.\\n\\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\\n SKEEL, JR.; NATALIE A. JARESKO,\\n\\n Defendants, Appellees,\\n\\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\\n\\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\\n ELECTRIC POWER AUTHORITY (PREPA),\\n\\n Debtors, Appellees.\\n\\n\\n\\n APPEALS FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n\\n [Hon. Laura Taylor Swain,* U.S. District Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter,** Associate Justice,\\n and Stahl, Circuit Judge.\\n\\n\\n\\n Israel Roldán-González for Carlos Méndez-Núñez.\\n Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,\\nSheila Torres-Delgado, David Rodríguez-Burns, and Aldarondo &\\nLópez Bras ALB, were on brief for Thomas Rivera-Schatz.\\n Timothy W. Mungovan, with whom John E. Roberts, Guy Brenner,\\nMartin J. Bienenstock, Steven L. Ratner, Mark D. Harris, Kevin J.\\nPerra, and Proskauer Rose LLP, were on brief, for the Financial\\nOversight and Management Board for Puerto Rico; Jose B. Carrion,\\nIII; Andrew G. Biggs; Carlos M. Garcia; Arthur J. Gonzalez; Jose\\nR. Gonzalez; Ana J. Matosantos; David A. Skeel, Jr.; Natalie A.\\nJaresko.\\n\\n\\n February 22, 2019\\n\\n\\n\\n\\n * Of the Southern District of New York, sitting by\\ndesignation.\\n ** Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f LYNCH, Circuit Judge. These appeals raise several\\n\\nquestions about the authority, under the Puerto Rico Oversight,\\n\\nManagement and Economic Stability Act (PROMESA), of the Financial\\n\\nOversight and Management Board for Puerto Rico to develop and\\n\\ncertify Fiscal Plans and Territory Budgets for the Commonwealth.\\n\\n48 U.S.C. §§ 2141-2142. In particular, this case is about the\\n\\n2019 Fiscal Plan and Territory Budget.\\n\\n The plaintiffs, the Speaker of Puerto Rico's House of\\n\\nRepresentatives, Carlos Méndez-Núñez, and the President of its\\n\\nSenate, Thomas Rivera-Schatz, in their official capacities and on\\n\\nbehalf of the Legislative Assembly, sued the Board, its members,\\n\\nand its executive director after the Board developed and certified\\n\\na Fiscal Plan and a Territory Budget for Fiscal Year 2019. The\\n\\ncomplaint alleged that the Board had made several erroneous\\n\\ncertification decisions and had exceeded its power under PROMESA\\n\\nduring the Fiscal Plan and Territory Budget development and\\n\\ncertification processes. It sought declaratory and injunctive\\n\\nrelief. The district court dismissed the complaint, in part for\\n\\nlack of subject matter jurisdiction and in part for failure to\\n\\nstate a claim. See Rivera-Schatz v. Fin. Oversight & Mgmt. Bd.\\n\\nfor P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 327 F. Supp.\\n\\n3d 364 (D.P.R. 2018). We affirm the dismissal on the same grounds.\\n\\n\\n\\n\\n - 4 -\\n\\f I.\\n\\n We describe the statutory context and the relevant\\n\\nevents surrounding the 2019 Fiscal Plan and Territory Budget.1\\n\\nA. PROMESA's Basic Structure\\n\\n Finding Puerto Rico to be amid a \\\"fiscal emergency,\\\"\\n\\nCongress enacted PROMESA in 2016. See Pub. L. No. 114-187\\n\\n§ 405(m)(1), 130 Stat. 549, 591 (2016); see also Aurelius Inv.,\\n\\nLLC v. Commonwealth of P.R., Nos. 18-1671, 18-1746, 18-1787, 2019\\n\\nWL 642328, at *1-2 (1st Cir. Feb. 15, 2019) (recounting the origins\\n\\nof the emergency and the responses before PROMESA). PROMESA\\n\\ncreated mechanisms for restructuring the debts of U.S. territories\\n\\nand for overseeing reforms of their fiscal and economic policies.\\n\\nSee 48 U.S.C. § 2121(a) (stating this purpose). The Board,\\n\\nestablished \\\"as an entity within the territorial government\\\" of\\n\\nPuerto Rico, id. § 2121(c)(1), was empowered by PROMESA to, among\\n\\nother things, develop, approve, and certify Fiscal Plans and\\n\\nTerritory Budgets, id. §§ 2141-2142, negotiate with the\\n\\nCommonwealth's creditors, id. § 2146, and, under Title III, to\\n\\ncommence a bankruptcy-type proceeding on behalf of the\\n\\nCommonwealth, id. § 2175; see generally Aurelius Inv., 2019 WL\\n\\n\\n\\n 1 Because the complaint was disposed of at the motion to\\ndismiss stage, we take the facts from the complaint, its\\nattachments, and the motion to dismiss and its attachments. See,\\ne.g., In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 14-15 (1st\\nCir. 2003). There are no material disputes about this record.\\n\\n\\n - 5 -\\n\\f642328, at *2-3, *11-12 (outlining key powers granted to the\\n\\nBoard).\\n\\n Congress enacted PROMESA under its Article IV \\\"Power to\\n\\ndispose of and make all needful Rules and Regulations respecting\\n\\nthe Territory . . . belonging to the United States.\\\" U.S. Const.\\n\\nart. IV § 3, cl. 2; see 48 U.S.C. § 2121(b)(2). Puerto Rico became\\n\\na U.S. territory in 1898, see Treaty of Paris, art. 9, Dec. 10,\\n\\n1898, 30 Stat. 1759, and is governed by a popularly elected\\n\\nGovernor and Legislative Assembly under a constitution adopted by\\n\\nPuerto Rico and approved by Congress under the Territorial Clause,\\n\\nsee Act of July 3, 1952, Pub. L. No. 447, ch. 567, 66 Stat. 327;\\n\\nsee also Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1875 (2016)\\n\\n(recognizing the congressional role in authorizing Puerto Rico's\\n\\n\\\"constitution-making process\\\" and in approving the resulting\\n\\nConstitution).\\n\\n PROMESA explicitly reserves \\\"the power of [Puerto Rico]\\n\\nto control, by legislation or otherwise, the territory,\\\" except as\\n\\nthat power is limited by Titles I and II of PROMESA. 48 U.S.C.\\n\\n§ 2163. In addition to that exception, PROMESA's provisions\\n\\npreempt any inconsistent \\\"general or specific provisions of\\n\\nterritory law,\\\" including provisions of Puerto Rico's\\n\\nConstitution. See id. § 2103; see also United States v. Maldonado-\\n\\nBurgos, 844 F.3d 339, 346 (1st Cir. 2016) (citing United States v.\\n\\nQuinones, 758 F.2d 40 (1st Cir. 1985) and then citing United States\\n\\n\\n - 6 -\\n\\fv. Acosta-Martinez, 252 F.3d 13, 18 (1st Cir. 2001)) (\\\"[A]\\n\\nprovision of the Puerto Rico Constitution cannot prevail where it\\n\\nconflicts with applicable federal law.\\\").\\n\\n We have previously had occasion to interpret aspects of\\n\\nPROMESA's Title III. See Fin. Oversight & Mgmt. Bd. for P.R. v.\\n\\nAd Hoc Grp. of PREPA Bondholders (In re Fin. Oversight & Mgmt. Bd.\\n\\nfor P.R.), 899 F.3d 13, 18 (1st Cir. 2018); Peaje Invs. LLC v.\\n\\nGarcía-Padilla, 845 F.3d 505, 511 (1st Cir. 2017); Lex Claims, LLC\\n\\nv. Fin. Oversight & Mgmt. Bd., 853 F.3d 548, 552 (1st Cir. 2017);\\n\\nsee also Altair Glob. Credit Opportunities Fund, LLC v. The Emps.\\n\\nRet. Sys. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 914 F.3d\\n\\n694, 707 (1st Cir. 2019) (noting PROMESA's enactment). Recently,\\n\\nin Aurelius Investment, LLC v. Commonwealth of Puerto Rico, 2019\\n\\nWL 642328, at *1, this court considered the constitutionality of\\n\\nPROMESA's procedure for appointing Board members, see 48 U.S.C.\\n\\n§ 2121(e). Aurelius' holding that this procedure violates the\\n\\nAppointments Clause, U.S. Const. art. II, § 2, cl. 2, has no effect\\n\\non the \\\"otherwise valid actions of the Board prior to the issuance\\n\\nof [Aurelius'] mandate,\\\" and so does not impact the outcome of\\n\\nthese appeals, Aurelius Inv., 2019 WL 642328, at *17.\\n\\n At issue here are events that occurred in 2018 and\\n\\nquestions of first impression about Title II's provisions related\\n\\nto Fiscal Plans and Territory Budgets. 48 U.S.C. §§ 2141-2142.\\n\\nWe explain those provisions in greater detail below.\\n\\n\\n - 7 -\\n\\fB. 2019 Fiscal Plan\\n\\n Congress intended for Fiscal Plans to provide roadmaps\\n\\nfor Puerto Rico \\\"to achieve fiscal responsibility and access to\\n\\nthe capital markets.\\\" Id. § 2141(b)(1). PROMESA § 201 grants the\\n\\nBoard exclusive authority to review, approve, and certify these\\n\\nPlans.2 See id. § 2141(c)-(e); cf. Aurelius Inv., 2019 WL 642328,\\n\\nat *12 (describing these and related powers and characterizing\\n\\nthem as \\\"significant\\\"). That section also outlines a yearly\\n\\nprocess, involving only the Governor and the Board, for development\\n\\nof Fiscal Plans. See generally 48 U.S.C. § 2141. The Legislative\\n\\nAssembly has a formal role in economic planning and budgeting under\\n\\nPROMESA, but that role is limited to the Territory Budget\\n\\ndevelopment process. See id. § 2142(d).\\n\\n\\n\\n 2 PROMESA does provide one path for the Governor and the\\nBoard to jointly develop and certify Fiscal Plans \\\"that meet[] the\\nrequirements under [§ 201].\\\" 48 U.S.C. § 2141(f). The full\\nprovision reads:\\n (f) Joint development of Fiscal Plan\\n Notwithstanding any other provision of this\\n section, if the Governor and the Oversight\\n Board jointly develop a Fiscal Plan for the\\n fiscal year that meets the requirements under\\n this section, and that the Governor and the\\n Oversight Board certify that the fiscal plan\\n reflects a consensus between the Governor and\\n the Oversight Board, then such Fiscal Plan\\n shall serve as the Fiscal Plan for the\\n territory or territorial instrumentality for\\n that fiscal year.\\n\\nId.\\n\\n\\n - 8 -\\n\\f 1. Initial Development\\n\\n PROMESA's prescribed process for \\\"[d]evelopment, review,\\n\\napproval, and certification of Fiscal Plans\\\" occurs on a schedule\\n\\nset by the Board, id. § 2141(c); see id. § 2141(a), and begins\\n\\nwith the submission of a proposed Fiscal Plan by the Governor, see\\n\\nid. § 2141(c) (\\\"The Governor shall submit to the Oversight Board\\n\\nany proposed Fiscal Plan . . . .\\\"). For 2019, the Governor sent\\n\\nseveral versions of his proposed Fiscal Plan to the Board between\\n\\nJanuary and April 2018.\\n\\n The Board reviewed each of these proposals, as required\\n\\nby § 201(c)(3), which states that \\\"[t]he Oversight Board shall\\n\\nreview any proposed Fiscal Plan to determine whether it satisfies\\n\\nthe requirements set forth in subsection (b).\\\" Id. § 2141(c)(3).\\n\\nContained in subsection (b) are over a dozen specific requirements.\\n\\nThose include \\\"provid[ing] for the elimination of structural\\n\\ndeficits\\\" and \\\"for the investments necessary to promote economic\\n\\ngrowth.\\\" Id. § 2141(b)(1)(A)–(N).3\\n\\n\\n 3 The requirements \\\"set forth in\\\" § 201(b) are:\\n (A) provide for estimates of revenues and\\n expenditures in conformance with agreed\\n accounting standards and be based on --\\n (i) applicable laws; or\\n (ii) specific bills that require\\n enactment in order to reasonably achieve\\n the projections of the Fiscal Plan;\\n (B) ensure the funding of essential public\\n services;\\n (C) provide adequate funding for public\\n pension systems;\\n\\n - 9 -\\n\\f Here, the Board rejected each of the Governor's proposed\\n\\n2019 Fiscal Plans as not satisfying § 201(b)'s requirements.4 The\\n\\n\\n\\n\\n (D) provide for the elimination of structural\\n deficits;\\n (E) for fiscal years covered by a Fiscal Plan\\n in which a stay under subchapters III or IV is\\n not effective, provide for a debt burden that\\n is sustainable;\\n (F) improve fiscal governance,\\n accountability, and internal controls;\\n (G) enable the achievement of fiscal targets;\\n (H) create independent forecasts of revenue\\n for the period covered by the Fiscal Plan;\\n (I) include a debt sustainability analysis;\\n (J) provide for capital expenditures and\\n investments necessary to promote economic\\n growth;\\n (K) adopt appropriate recommendations\\n submitted by the Oversight Board under section\\n 2145(a) of this title;\\n (L) include such additional information as the\\n Oversight Board deems necessary;\\n (M) ensure that assets, funds, or resources of\\n a territorial instrumentality are not loaned\\n to, transferred to, or otherwise used for the\\n benefit of a covered territory or another\\n covered territorial instrumentality of a\\n covered territory, unless permitted by the\\n constitution of the territory, an approved\\n plan of adjustment under subchapter III, or a\\n Qualifying Modification approved under\\n subchapter VI; and\\n (N) respect the relative lawful priorities or\\n lawful liens, as may be applicable, in the\\n constitution, other laws, or agreements of a\\n covered territory or covered territorial\\n instrumentality in effect prior to June 30,\\n 2016.\\n\\n48 U.S.C. § 2141(b)(1).\\n 4 If the Board had determined that one of the Fiscal Plans\\nproposed by the Governor did \\\"satisf[y] such requirements, the\\n\\n\\n - 10 -\\n\\fBoard returned two of the Governor's proposals to him, as required\\n\\nby § 201(c)(3)(B), with \\\"a notice of violation that includes\\n\\nrecommendations for revisions to the applicable Fiscal Plan;\\n\\nand . . . an opportunity to correct the violation.\\\" Id.\\n\\n§ 2141(c)(3)(B). At the time the Board rejected the Governor's\\n\\nfinal, April 2018, proposal, the deadline for certifying a 2019\\n\\nFiscal Plan had passed. Under such circumstances (that is, when\\n\\n\\\"the Governor fails to submit to the Oversight Board a Fiscal Plan\\n\\nthat the Oversight Board determines in its sole discretion\\n\\nsatisfies the requirements . . . by the time specified\\\"), PROMESA\\n\\n§ 201(d)(2) provides that \\\"the Oversight Board shall develop and\\n\\nsubmit to the Governor and the Legislature a Fiscal Plan that\\n\\nsatisfies the requirements.\\\" Id. § 2141(d)(2).\\n\\n 2. April 19, 2018 Fiscal Plan\\n\\n On April 19, 2018, the Board accordingly certified a\\n\\n2019 Fiscal Plan that it had developed. That Fiscal Plan was\\n\\nautomatically \\\"deemed approved by the Governor\\\" under § 201(e)(2).\\n\\nSee id. § 2141(e)(2) (\\\"If the Oversight Board develops a Fiscal\\n\\nPlan under subsection (d)(2), such Fiscal Plan shall be deemed\\n\\napproved by the Governor . . . .\\\").\\n\\n The April Fiscal Plan incorporated many aspects of the\\n\\nGovernor's proposed Fiscal Plan. It also included a labor reform\\n\\n\\nOversight Board\\\" would have been required to \\\"approve\\\" and certify\\nthat proposed Fiscal Plan. Id. § 2141(c)(3)(A), (e)(1).\\n\\n\\n - 11 -\\n\\fpackage not proposed by the Governor. This was one among a set of\\n\\n\\\"comprehensive structural reforms to the economy of Puerto Rico\\\"\\n\\nset forth in the Plan. These comprehensive reforms, to Puerto\\n\\nRico's labor laws, business regulations, and infrastructure (among\\n\\nother areas), were designed by the Board to \\\"revers[e] the negative\\n\\ntrend [of economic] growth over the last 10 years and enabl[e] the\\n\\nIsland to become a vibrant and productive economy going forward.\\\"\\n\\n \\\"[I]ncreasing labor force participation may be the\\n\\nsingle most important reform for long-term economic well-being in\\n\\nPuerto Rico,\\\" the April Plan stated. It identified three \\\"labor\\n\\nmarket reforms\\\" intended \\\"[t]o reduce the cost to hire and\\n\\nencourage job creation, including movement of informal jobs to the\\n\\nformal economy.\\\" The three \\\"initiatives to change labor\\n\\nconditions\\\" were: a shift to at-will employment; a \\\"[r]eduction of\\n\\nmandated paid leave, including sick leave and vacation pay;\\\" and\\n\\nan end to \\\"mandated Christmas bonuses.\\\" The called-for adoption\\n\\nof at-will employment required the repeal of Puerto Rico's Law No.\\n\\n80 of May 30, 1976, P.R. Laws Ann. tit 29 §§ 185a-185m, which bars\\n\\ntermination of many private-sector employees without cause.\\n\\n As to this first reform, the Plan noted that \\\"49 out of\\n\\n50 U.S. states are employment at-will jurisdictions, giving\\n\\nemployers the flexibility to dismiss an employee without having to\\n\\nfirst prove just cause.\\\" It acknowledged that \\\"some employees\\n\\nbenefit from Puerto Rico's lack of at-will employment\\\" but credited\\n\\n\\n - 12 -\\n\\fevidence that for-cause employment \\\"makes it more costly and risky\\n\\nnot only to dismiss, but also to hire, an employee.\\\" \\\"For\\n\\nexample,\\\" the Plan summarized, \\\"studies have found that laws\\n\\npreventing unfair dismissal caused reductions in employment,\\n\\nparticularly in labor-intensive industries.\\\" It concluded that\\n\\nswitching to at-will employment \\\"will lower the cost and risk of\\n\\nhiring in Puerto Rico.\\\"\\n\\n The Plan quantified the impact of the labor reform\\n\\npackage on the Commonwealth's annual budget surplus over thirty\\n\\nyears. It projected that, with the adoption of at-will employment,\\n\\nPuerto Rico would have a $39 billion cumulative surplus over that\\n\\nperiod, compared with a $2 billion cumulative surplus without the\\n\\nenactment of at-will employment.\\n\\n The April Fiscal Plan also cut the operating budget of\\n\\nthe Puerto Rican Legislative Assembly. These \\\"reductions for the\\n\\nLegislative Assembly\\\" were \\\"informed by benchmarking against other\\n\\nfull-time legislatures\\\" in the United States, the Plan explained.\\n\\nThe Puerto Rican Legislative Assembly's expenditure in Fiscal Year\\n\\n2018 was about 300% greater than the (population-weighted)\\n\\nnational average of full-time U.S. legislatures, according to an\\n\\nanalysis by the Board of publicly available data.5 The Plan stated\\n\\n\\n\\n\\n 5 This analysis appeared in the Board's motion to dismiss.\\n\\n\\n - 13 -\\n\\fthat these reductions would achieve \\\"reinvestment savings\\\" of\\n\\nbetween $23.6 and $25 million per year for the next five years.\\n\\n 3. May 30, 2018 Fiscal Plan\\n\\n The Governor and the Board continued negotiating about\\n\\nthe labor reform package and other matters after the April Fiscal\\n\\nPlan had been certified. Eventually, the Board agreed to certify\\n\\na revised Fiscal Plan that it had developed. It did so on May 30,\\n\\n2018. Two aspects of the Board's May Fiscal Plan are relevant to\\n\\nthese appeals.\\n\\n First, the May Fiscal Plan provided for a shift to\\n\\nat-will employment. Specifically:\\n\\n The Legislature shall introduce and the\\n Governor shall sign a bill that repeals Act\\n No. 80 . . . on or before June 27, 2018, which\\n shall become effective on or before January 1,\\n 2019. . . . The Bill shall state that, for\\n the avoidance of doubt, an employee hired for\\n an indefinite period of time does not have a\\n cause of action against their employer merely\\n for the employer's termination of the\\n employment relation.\\n\\nThat is, the government of Puerto Rico would repeal Law 80 and\\n\\nclarify that employment is at will.\\n\\n Second, the cut to the Legislative Assembly's budget was\\n\\nremoved from the May version of the Fiscal Plan. In addition,\\n\\ncuts to the budget of the judiciary included in the April Fiscal\\n\\nPlan were \\\"reduced by half each year\\\" in the May version, a change\\n\\nthat increased the court system's budget by up to $23 million per\\n\\n\\n\\n\\n - 14 -\\n\\fyear over what had been budgeted in the April version. According\\n\\nto a statement of understanding between the Governor and the Board,\\n\\nthese operating budgets were to \\\"be revisited annually,\\\" and these\\n\\nfunding levels were made contingent on Puerto Rico's \\\"compliance\\n\\nwith the then-applicable fiscal plan.\\\" That is, the May Fiscal\\n\\nPlan stated that the allocations for the Legislative Assembly and\\n\\nthe judiciary\\n\\n are pursuant to Puerto Rico becoming an\\n employment at-will jurisdiction by repealing\\n Law 80 of May 30, 1976 on or before June 27,\\n 2018 . . . . If the repeal does not occur,\\n none of these changes and alterations [to the\\n Legislative Assembly's and the judiciary's\\n budgets] shall be implemented.\\n\\n The Legislative Assembly did not repeal Law 80. Instead,\\n\\nthe day the Board certified the May Fiscal Plan, May 30, Puerto\\n\\nRico's Senate passed Senate Bill 1011, which made at-will\\n\\nemployment the rule for employees hired after the date of the\\n\\nbill's enactment, while retaining Law 80's for-cause rule for those\\n\\nalready employed.6\\n\\n The House of Representatives immediately began\\n\\nconsidering Senate Bill 1011. Recognizing that the bill did not\\n\\n\\n\\n\\n 6 The Senate also studied a labor reform bill that the\\nBoard had drafted based on the April Fiscal Plan. Based on\\ntestimony from experts and a review of studies, a Senate committee\\npenned a report in July 2018 rejecting the proposed bill and\\nstating that the bill's reforms, including at-will employment,\\n\\\"have not had a positive or significant impact in [other] economies\\nwhere similar . . . reforms have been implemented.\\\"\\n\\n\\n - 15 -\\n\\ffully repeal Law 80, the President of the House Government Affairs\\n\\nCommittee sent a letter to the Board asking about the \\\"effect on\\n\\nthe Fiscal Plan and the budget to be certified by the Financial\\n\\nOversight Board\\\" were the House to pass Senate Bill 1011. The\\n\\nBoard responded that same day, June 4, that, if the Legislative\\n\\nAssembly \\\"fails to comply exactly with the understanding reached\\n\\nwith the Oversight Board concerning the repeal of Law 80, the\\n\\nOversight Board will amend the Fiscal Plan and Budget to,\\\" among\\n\\nother things, \\\"[m]aintain the cuts to the budgets of the\\n\\nLegislature and Judiciary as outlined in the April 19 Fiscal Plan.\\\"\\n\\nTen days later, on June 14, the House passed Senate Bill 1011.\\n\\nThe parties agree that Senate Bill 1011 never became law; the\\n\\nrecord does not explain why.\\n\\n 4. June 29, 2018 Fiscal Plan\\n\\n On June 29, 2018, the Board informed the Governor and\\n\\nthe Legislative Assembly by letter that it was certifying a new\\n\\nFiscal Plan. As had been promised in the May Fiscal Plan and in\\n\\nthe Board's June 4 letter, the Board's June Fiscal Plan funded the\\n\\njudiciary and the Legislative Assembly at the levels stated in the\\n\\nApril Plan. The letter explained, \\\"Unfortunately, we now know\\n\\nthat the Government of Puerto Rico will not implement the [May]\\n\\nFiscal Plan in full because the Legislature . . . failed to pass\\n\\nthe most important component of the Labor Reform Package -- the\\n\\n\\n\\n\\n - 16 -\\n\\frepeal of Law 80 and turning Puerto Rico into an at-will employment\\n\\njurisdiction.\\\"\\n\\n The labor reform package was absent from the Board's\\n\\nJune Fiscal Plan, certified June 29, 2018. On that subject, the\\n\\nJune Plan stated the following:\\n\\n [W]hile successful human capital and welfare\\n reforms would have been projected to generate\\n approximately $39 billion in additional\\n revenues by FY2048 and over ~$320 million from\\n FY2018-FY2023, the Legislature's demonstrated\\n noncompliance with the comprehensive labor\\n reform requirements of previous fiscal plans\\n has forced the removal of these projected\\n revenues from the New Fiscal Plan.\\n\\nC. 2019 Territory Budget\\n\\n PROMESA § 202 grants the Board exclusive authority to\\n\\nreview, approve, and certify Territory Budgets. See 48 U.S.C.\\n\\n§ 2142; see also Aurelius Inv., 2019 WL 642328, at *12 (recognizing\\n\\nthe Board's \\\"significant\\\" power to approve and reject Commonwealth\\n\\nbudgets). The Legislative Assembly's only responsibility under\\n\\n§ 202 is to \\\"submit to the Oversight Board the Territory Budget\\n\\nadopted by the Legislature.\\\" 48 U.S.C. § 2142(d)(1).\\n\\n For 2019, the Legislative Assembly did this on June 30,\\n\\n2018, the day before the start of the Fiscal Year. Earlier that\\n\\nday, the Legislature had approved an $8,708,623,000 Commonwealth\\n\\nbudget (which the Governor later signed).\\n\\n Also on June 30, the Board determined that the\\n\\nLegislative Assembly's Budget was non-compliant with the\\n\\n\\n\\n - 17 -\\n\\fBoard-certified June Fiscal Plan.7 The Legislative Assembly's\\n\\n$84,275,000 combined allocation for Puerto Rico's House of\\n\\nRepresentatives ($45,470,000) and Senate ($38,805,000) matched the\\n\\nbudget for the Legislative Assembly under the Board's May Fiscal\\n\\nPlan but exceeded the reduced allocation in the June Plan.\\n\\n The Board then immediately certified a Territory Budget\\n\\nit had developed totaling $8,757,524,000. Of this, and consistent\\n\\nwith the June Fiscal Plan, $65,292,000 was allocated to the\\n\\nLegislative Assembly ($35,228,000 to the House and $30,064,000 to\\n\\nthe Senate). In developing and certifying this Budget, the Board\\n\\nrelied on its authority under § 202(e)(3). That provision\\n\\nprovides:\\n\\n If the Governor and the Legislature fail to\\n develop and approve a Territory Budget that is\\n a compliant budget by the day before the first\\n day of the fiscal year for which the Territory\\n Budget is being developed, the Oversight Board\\n shall submit a Budget to the Governor and the\\n Legislature . . . and such Budget shall be --\\n (A) deemed to be approved by the Governor\\n and the Legislature; . . .\\n (C) in full force and effect beginning on\\n the first day of the applicable fiscal\\n year.\\n\\n\\n\\n\\n 7 If the Board had deemed this \\\"adopted Territory Budget\\\"\\nto be compliant with the Fiscal Plan, then the Oversight Board\\nwould have been required to \\\"issue a compliance certification for\\nsuch compliant budget.\\\" 48 U.S.C. § 2142(d)(1)(A).\\n\\n\\n - 18 -\\n\\fId. § 2142(e)(3).8 By operation of law, then, the Board's 2019\\n\\nTerritory Budget went into effect.\\n\\nD. Procedural History\\n\\n On July 9, plaintiffs filed their complaint against the\\n\\nBoard seeking the following relief:9 (1) a declaration \\\"that the\\n\\nrejected policy recommendations in the Fiscal Plan are non-binding\\n\\nrecommendations, and that the Legislative Assembly cannot be\\n\\ncompelled to implement any of those policies, and the [Board] may\\n\\nnot take any actions to force compliance with such\\n\\nrecommendations;\\\" (2) a declaration that the Territory Budget\\n\\ncertified by the Board \\\"is null and void;\\\" and (3) an injunction\\n\\n\\\"prohibiting the defendants from implementing and enforcing\\\" the\\n\\nBoard-developed and certified Budget and \\\"reinstat[ing]\\\" the\\n\\nBudget adopted by the Legislative Assembly. We describe the pled\\n\\ntheories for relief in the analysis.\\n\\n Defendants moved to dismiss the complaint for lack of\\n\\nsubject matter jurisdiction and for failure to state a claim to\\n\\nrelief, and the district court granted the motion. Rivera-Schatz,\\n\\n\\n 8 Had these events occurred before \\\"the day before the\\nfirst day of the fiscal year\\\" and had the Board determined that\\nthe submitted Budget was not compliant, then PROMESA says that\\n\\\"the Oversight Board shall provide to the Legislature -- (i) a\\nnotice of violation that includes a description of any necessary\\ncorrective action; and (ii) an opportunity to correct the\\nviolation.\\\" 48 U.S.C. § 2142(d)(1)(B).\\n 9 The complaint was filed in the District of Puerto Rico\\nin the Commonwealth's ongoing case under Title III of PROMESA.\\n\\n\\n - 19 -\\n\\f327 F. Supp. 3d at 369-71. The court first held that the request\\n\\nfor a declaration about Fiscal Plan recommendations did not rest\\n\\non a proper Article III case or controversy, and it dismissed that\\n\\nrequest, which appeared in Paragraph 79 of the complaint, for lack\\n\\nof subject matter jurisdiction. Id. at 370-71. Next, in\\n\\ndismissing the remaining declaratory- and injunctive-relief\\n\\nclaims, the district court gave two reasons. To the extent those\\n\\nclaims directly challenged the Board's budget certification\\n\\ndecisions, the district court dismissed them for lack of subject\\n\\nmatter jurisdiction, relying on PROMESA § 106(e). Id. at 371.\\n\\nThat provision states that \\\"[t]here shall be no jurisdiction in\\n\\nany United States district court to review challenges to the\\n\\nOversight Board's certification determinations under [PROMESA].\\\"\\n\\n48 U.S.C. § 2126(e); see Rivera-Schatz, 327 F. Supp. 3d at 371.\\n\\nTo the extent that the remaining claims challenged the Board's\\n\\nactions as exceeding its authority under PROMESA or as encroaching\\n\\non the Legislative Assembly's power under Puerto Rico's\\n\\nConstitution, the district court dismissed them for failure to\\n\\nstate a claim. Rivera-Schatz, 327 F. Supp. 3d at 372-73.\\n\\n II.\\n\\n We review the district court's grant of the motion to\\n\\ndismiss de novo. See, e.g., Flores v. OneWest Bank, F.S.B., 886\\n\\nF.3d 160, 162 (1st Cir. 2018). In doing so, we analyze the issues\\n\\nwithin the basic three-part framework outlined by the district\\n\\n\\n - 20 -\\n\\fcourt, considering first the request for a declaration about Fiscal\\n\\nPlan recommendations, and then the declaratory- and injunctive-\\n\\nrelief claims about the 2019 Budget.\\n\\n We affirm the district court's grounds for dismissal.\\n\\nFirst, the federal courts lack Article III jurisdiction over the\\n\\ncomplaint's request for a declaration about Fiscal Plan\\n\\nrecommendations. Second, the district court correctly concluded\\n\\nthat, under § 106(e), it lacked jurisdiction to review alleged\\n\\nerrors in the Board's certification determinations. Third, the\\n\\ncomplaint fails to state a claim to relief on the theory that the\\n\\nBoard exceeded its authority under PROMESA during the 2019 Fiscal\\n\\nPlan and Territorial Budget processes.\\n\\n The Board defends these grounds. It does not challenge\\n\\nthe district court's reading of § 106(e), and we do not engage\\n\\nthat topic.\\n\\nA. Article III Jurisdiction\\n\\n Count I of the complaint alleges that \\\"PROMESA does not\\n\\nallow the [Board] to bypass or usurp the Legislative Assembly's\\n\\nlegislative power\\\" by \\\"set[ting] forth the Commonwealth's public\\n\\npolicy\\\" as to \\\"the rights of employees in Puerto Rico.\\\" The Board\\n\\ndid just that, the complaint asserts, \\\"when it tried to force the\\n\\nLegislative Assembly to pass a bill retroactively repealing Law 80\\n\\nas a condition to approve the Commonwealth's budget.\\\" And when\\n\\nthe Legislative Assembly declined to repeal Law 80, the complaint\\n\\n\\n - 21 -\\n\\fsays, the Board \\\"punished it by imposing severe cuts in its\\n\\noperational budget.\\\" Based on those allegations, Paragraph 79 of\\n\\nthe complaint says:\\n\\n Plaintiffs are therefore entitled to a\\n judicial declaration under [the Declaratory\\n Judgment Act] . . . that the rejected policy\\n recommendations in the Fiscal Plan are\\n non-binding recommendations, and that the\\n Legislative Assembly cannot be compelled to\\n implement any of those policies, and the\\n [Board] may not take any actions to force\\n compliance with such recommendations.\\n\\nThe federal courts lack Article III jurisdiction over Paragraph\\n\\n79's request.\\n\\n The Declaratory Judgment Act allows \\\"any court of the\\n\\nUnited States\\\" to \\\"declare the rights and other legal relations of\\n\\nany interested party seeking such declaration, whether or not\\n\\nfurther relief is or could be sought,\\\" but only \\\"[i]n a case of\\n\\nactual controversy within [that court's] jurisdiction.\\\" 28 U.S.C.\\n\\n§ 2201(a). As the Supreme Court has explained, \\\"the phrase 'case\\n\\nof actual controversy' in the Act refers to the type of 'Cases'\\n\\nand 'Controversies' that are justiciable under Article III.\\\"\\n\\nMedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)\\n\\n(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)).\\n\\nAlthough there is not \\\"the brightest of lines between those\\n\\ndeclaratory-judgment actions that satisfy the case-or-controversy\\n\\nrequirement and those that do not,\\\" id., \\\"[b]asically, the question\\n\\nin each case is whether the facts alleged, under all the\\n\\n\\n - 22 -\\n\\fcircumstances, show that there is a substantial controversy,\\n\\nbetween parties having adverse legal interests, of sufficient\\n\\nimmediacy and reality to warrant the issuance of a declaratory\\n\\njudgment,\\\" Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,\\n\\n273 (1941).\\n\\n This standard cannot be satisfied if Paragraph 79 is\\n\\nread to request a declaration about the rights of the Board and\\n\\nthe Legislative Assembly whenever there is disagreement about\\n\\nwhether to implement a Fiscal Plan policy included by the Board.10\\n\\nThat would be a request for an advisory opinion about the import\\n\\nof Fiscal Plans under PROMESA.\\n\\n Appellants' attempts to read into Paragraph 79 a\\n\\njusticiable dispute with definite legal and factual dimensions\\n\\nfare no better under Article III's standard. The request cannot\\n\\nbe made justiciable by defining the \\\"rejected policy\\n\\nrecommendations\\\" as the labor reform package introduced in the\\n\\n\\n\\n 10 The district court observed that \\\"recommendations\\\" could\\nrefer to \\\"the concept of 'recommendations' under Section 205 of\\nPROMESA.\\\" Rivera-Schatz, 327 F. Supp. 3d at 370. Section 205\\nallows the Board to make policy recommendations to the Governor or\\nthe Legislative Assembly \\\"at any time\\\" and provides a procedure\\nfor \\\"the territorial government\\\" to adopt or reject the\\nrecommendations. 48 U.S.C. § 2145. In his brief, Méndez-Núñez,\\nthe House Speaker, alludes to this reading. We agree with the\\ndistrict court that, if Paragraph 79 refers to § 205\\nrecommendations in the abstract, that paragraph requests an\\nadvisory opinion about the \\\"meaning and effect of a section of the\\nstatute,\\\" and we lack Article III jurisdiction. Rivera-Schatz,\\n327 F. Supp. 3d at 371.\\n\\n\\n - 23 -\\n\\fApril Fiscal Plan, as Rivera-Schatz, the Senate President, does in\\n\\nhis brief. Under this reading of Paragraph 79, the dispute lacks\\n\\nthe requisite reality: The currently certified Fiscal Plan does\\n\\nnot include the objected-to labor reforms, which were removed\\n\\nbefore the June version. To provide the declarations, then, would\\n\\nrequire a court to imagine a set of labor reforms into the Fiscal\\n\\nPlan and to predict the Board and the Legislative Assembly's\\n\\nreactive moves and counter-moves. The resulting declaration would\\n\\nbe an impermissible \\\"opinion advising what the law would be upon\\n\\na hypothetical state of facts.\\\" Aetna, 300 U.S. at 241.\\n\\n Appellants cannot get around this by reading Paragraph\\n\\n79 to request a declaration about the April or May Fiscal Plans\\n\\nand the ensuing actions of the Legislative Assembly and the Board.\\n\\nSuch a request would still be one for an advisory opinion, as past\\n\\ndifferences are not amenable to the type of relief that Article\\n\\nIII allows courts to give -- \\\"decree[s] of a conclusive character\\\"\\n\\nadjudicating adverse parties' actual rights and interests. Aetna,\\n\\n300 U.S. at 241; cf. Hall v. Beals, 396 U.S. 45, 48 (1969) (holding\\n\\nthat an amendment to the challenged statute eliminated any\\n\\n\\\"controversy of the kind that must exist if we are to avoid\\n\\nadvisory opinions\\\").\\n\\n Nor can the request be made justiciable by reading\\n\\nParagraph 79 to request a declaration on disputes that the\\n\\nappellants say are likely to arise under future Fiscal Plans. In\\n\\n\\n - 24 -\\n\\fDeclaratory Judgment Act cases where jurisdiction is exercised\\n\\nbased on a threat of future injury, the potential injury is\\n\\ntypically legal liability on a set of already defined facts,11 so\\n\\nthat the Act merely \\\"defin[es] procedure\\\" to enable judicial\\n\\nresolution of a case or controversy that might otherwise be\\n\\nadjudicated at a different time or in a slightly different form.\\n\\nSee Aetna, 300 U.S. at 240. That is not this request. Whatever\\n\\nfuture disputes may arise have not yet been and may never be\\n\\nadequately framed by their factual dimensions. See Texas v. United\\n\\nStates, 523 U.S. 296, 300 (1998) (stating that a dispute is not\\n\\njusticiable \\\"if it rests upon 'contingent future events that may\\n\\nnot occur as anticipated, or indeed may not occur at all'\\\" (quoting\\n\\nThomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81\\n\\n(1985))). Declaratory claims based on abstractions are not\\n\\njusticiable under Article III. See Int'l Longshoremen's &\\n\\nWarehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 224 (1954)\\n\\n(\\\"Determination of the scope . . . of legislation\\\" on fictional\\n\\nfacts \\\"involves too remote and abstract an inquiry for the proper\\n\\nexercise of the judicial function.\\\").\\n\\n\\n\\n\\n 11 See, e.g., Steffel v. Thompson, 415 U.S. 452, 475 (1974)\\n(exercising jurisdiction over pre-prosecution challenge to\\ncriminal statute); MedImmune, 549 U.S. at 137 (recognizing Article\\nIII jurisdiction over declaratory claims based on threatened\\nprivate enforcement action).\\n\\n\\n - 25 -\\n\\fB. Statutory Subject Matter Jurisdiction\\n\\n The complaint also seeks a declaration that the June\\n\\nBudget certified by the Board \\\"is null and void\\\" and an injunction\\n\\n\\\"prohibiting the defendants from implementing and enforcing\\\" the\\n\\nBoard-developed and certified Budget and \\\"reinstat[ing]\\\" the\\n\\nLegislative Assembly's Budget. In support of this, Count II of\\n\\nthe complaint outlines a theory that the Board erred in determining\\n\\nthat Senate Bill 1011 did not conform with the May Fiscal Plan.\\n\\nThis error, Count II asserts, led the Board to a second erroneous\\n\\ndetermination that the June Fiscal Plan should be certified, then\\n\\nto a third erroneous determination that the Legislative Assembly's\\n\\nBudget should not be certified because it did not comply with the\\n\\nJune Fiscal Plan, and finally to a fourth erroneous determination\\n\\nthat the Board-developed Budget should be certified. The district\\n\\ncourt held that it lacked jurisdiction under § 106(e) over the\\n\\nclaims that rested on Count II's allegations. See Rivera-Schatz,\\n\\n327 F. Supp. 3d at 371.\\n\\n We agree. PROMESA grants the Board exclusive authority\\n\\nto certify Fiscal Plans and Territory Budgets for Puerto Rico. It\\n\\nthen insulates those certification decisions from judicial review\\n\\nin § 106(e): \\\"There shall be no jurisdiction in any United States\\n\\ndistrict court to review challenges to the Oversight Board's\\n\\ncertification determinations under this chapter.\\\" 48 U.S.C.\\n\\n§ 2126(e). Section 106(e) is an exception to PROMESA's general\\n\\n\\n - 26 -\\n\\fgrant of jurisdiction at § 106(a), which provides that \\\"any action\\n\\nagainst the Oversight Board, and any action otherwise arising out\\n\\nof this chapter, in whole or in part, shall be brought in a United\\n\\nStates district court for the covered territory.\\\" Id. § 2126(a).\\n\\n Count II of the complaint alleges four unreviewable\\n\\nBoard errors in \\\"certification determinations under this chapter.\\\"\\n\\nId. § 2126(e). The district court was correct that it lacked\\n\\njurisdiction to review the Board's determination that the passage\\n\\nof Senate Bill 1011 was inconsistent with the May Fiscal Plan's\\n\\nrequirement to repeal Law 80. That determination was the basis\\n\\nfor the Board's decision to certify, under § 201(e)(2), the June\\n\\nFiscal Plan. And § 106(e) bars district courts from reviewing the\\n\\nreasons for certification determinations as much as the\\n\\ncertification determinations themselves. Nor did the district\\n\\ncourt have jurisdiction to review whether the Board erred in\\n\\ndeeming the Legislative Assembly's Budget non-compliant with the\\n\\napplicable Fiscal Plan and in certifying instead a Board-developed\\n\\nTerritory Budget. These decisions, which § 202 expressly empowers\\n\\nthe Board to make, see id. § 2142(d)-(e), are prototypical\\n\\n\\\"certification determinations under this chapter,\\\" id. § 2126(e).\\n\\n Rivera-Schatz's argument that the Board's determinations\\n\\nabout Territory Budgets adopted by the Legislative Assembly are\\n\\nreviewable runs headlong into the text of § 106(e). His argument\\n\\nrests on the following attempted contrast of §§ 201 and 202: § 201\\n\\n\\n - 27 -\\n\\fstates that the Board has \\\"sole discretion\\\" to determine whether\\n\\nto certify a Fiscal Plan or a Budget proposed by the Governor, see\\n\\nid. § 2141(c)(3), (c)(1), while § 202 does not use the phrase \\\"sole\\n\\ndiscretion\\\" in granting the Board authority to \\\"determine whether\\n\\nthe [Legislature-]adopted Territory Budget is a compliant budget,\\\"\\n\\nid. § 2142(d)(1). From this, Rivera-Schatz asks us to infer first\\n\\nthat the Board's authority to make determinations about\\n\\nLegislature-adopted Budgets is non-exclusive. Rivera-Schatz urges\\n\\nthat a second inference -- that such determinations are subject to\\n\\njudicial review -- follows. Section 106(e)'s text forecloses\\n\\nthese inferences. It plainly bars judicial review of \\\"challenges\\n\\nto the Oversight Board's certification determinations.\\\" Id.\\n\\n§ 2126(e). It does not distinguish among the various certification\\n\\ndeterminations that PROMESA commits to the Board.\\n\\n Appellants next argue, by analogy to a doctrine of\\n\\nadministrative law, that the challenged certification\\n\\ndeterminations are reviewable, despite § 106(e)'s jurisdictional\\n\\nprohibition, because the Board's actions violated clear statutory\\n\\ndirectives in §§ 201 and 202. This court has never recognized\\n\\nsuch an exception to any statutory provision explicitly precluding\\n\\njudicial review. Cf. Paluca v. Sec'y of Labor, 813 F.2d 524, 528\\n\\n(1st Cir. 1987) (declining the invitation). Nor do we here. That\\n\\nis because (among other reasons) PROMESA's instructions to the\\n\\nBoard about certification are not comparable to the types of\\n\\n\\n - 28 -\\n\\fcongressional commands that can prompt \\\"judicial review\\n\\nindependent of [statutory] review provisions.\\\" Kirby Corp. v.\\n\\nPeña, 109 F.3d 258, 269 (5th Cir. 1997) (defining the \\\"clear\\n\\nstatutory mandate\\\" exception as limited to administrative agency\\n\\nactions \\\"so contrary to the terms of the relevant statute that\\n\\n[they] necessitate[] judicial review independent of [statutory]\\n\\nreview provisions\\\"). To see this, compare the statutory rule\\n\\nviolated in Leedom v. Kyne, 358 U.S. 184 (1958), with the standards\\n\\nlaid out in PROMESA §§ 201 and 202. Kyne reviewed (without a\\n\\nstatute authorizing judicial review) a National Labor Relations\\n\\nBoard order certifying a collective bargaining unit mixing two\\n\\ntypes of employees, despite an unambiguous statutory bar on units\\n\\nmixing those employees. Id. at 185. In contrast, under § 201,\\n\\nthe Board has \\\"sole discretion\\\" to determine whether Fiscal Plans\\n\\ncomply with statutory requirements such as \\\"provide for the\\n\\nelimination of structural deficits.\\\" 48 U.S.C. § 2141(b)(1)(D);\\n\\nsee id. § 2141(b)-(c). Similarly, § 202 gives the Board\\n\\n\\\"discretion\\\" to decide whether a Territory Budget comports with a\\n\\nmultifaceted Fiscal Plan. See id. § 2142.\\n\\n Nor, finally, are appellants helped by their citations\\n\\nto McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).\\n\\nThat case allowed jurisdiction, despite a statutory bar on judicial\\n\\nreview, over a challenge to an agency's procedures under the Due\\n\\n\\n\\n\\n - 29 -\\n\\fProcess Clause. Id. at 481-84. But no federal constitutional\\n\\nclaims have been brought here.\\n\\n The district court properly dismissed the challenges to\\n\\nthe Board's certification decisions in Count II for lack of\\n\\nstatutory subject matter jurisdiction.\\n\\nC. Failure to State a Claim\\n\\n The complaint could arguably be read to allege three\\n\\nremaining theories for relief.12 First, we read it to assert that\\n\\nthe Board exceeded its authority under PROMESA §§ 204 and 205,\\n\\nwhich grant the Board powers related to legislation. See 48 U.S.C.\\n\\n§§ 2144-2145; see also Aurelius Inv., 2019 WL 642328, at *12\\n\\n(noting the Board's legislation-related powers). Second, we read\\n\\nthe complaint as alleging that the Board's decision to certify a\\n\\n\\n 12 Also remaining are two arguments made by appellants on\\nappeal but not to the district court: (1) The Board exceeded its\\nauthority under § 201 when it certified its June Fiscal Plan\\nwithout allowing the Governor another opportunity to submit a\\ncompliant Fiscal Plan. (2) The Board deliberately delayed\\ncertifying its June Fiscal Plan so that the Legislative Assembly\\nwould not have time before the start of Fiscal Year 2019 to approve\\nand submit to the Board under § 202(d)(1) a Territory Budget\\ncompliant with the Board's June Fiscal Plan. Neither argument was\\ndeveloped in the pleadings, see Rivera-Schatz, 327 F. Supp. 3d at\\n371 (cataloging other theories pled), and so we consider both\\nwaived, see, e.g., French v. Bank of N.Y. Mellon, 729 F.3d 17, 19\\nn.1 (1st Cir. 2013) (\\\"[B]elated allegations\\\" are waived.). In any\\nevent, both arguments are also inconsistent with the events of the\\nwinter, spring, and summer of 2018. The arguments overlook the\\nlineage of the Board's June Fiscal Plan: That Fiscal Plan was the\\nculmination of the formal development process and the informal\\nnegotiation process between the Governor and the Board between\\nJanuary and May. And the June Fiscal Plan was also identical, in\\nall respects relevant to this case, to the April Fiscal Plan.\\n\\n\\n - 30 -\\n\\fBoard-developed Budget that cut the Legislative Assembly's funds\\n\\nwas punitive and therefore \\\"contraven[ed] . . . the limited powers\\n\\ndelegated by Congress to the [Board].\\\" Third, we read the\\n\\ncomplaint to allege that the Board's decision to certify its Budget\\n\\nover the Legislative Assembly's impinged on the Legislative\\n\\nAssembly's power under Puerto Rico's Constitution.\\n\\n The district court chose to exercise jurisdiction over\\n\\nthese claims that the Board exceeded its authority under PROMESA,\\n\\na choice we do not evaluate,13 and to dismiss them for failure to\\n\\nstate a claim to relief. We affirm the dismissal, taking the three\\n\\nremaining arguments in turn.\\n\\n First, the complaint's assertions that the Board\\n\\nviolated §§ 204 and 205 rest on an inaccurate factual premise:\\n\\nthat the Board forced the Legislative Assembly to repeal or that\\n\\nthe Board otherwise nullified Law 80. The Board did nothing of\\n\\nthe sort; Law 80 remains on the books and the applicable Fiscal\\n\\nPlan does not call for its repeal.\\n\\n\\n\\n\\n 13 The issue of whether § 106(e) also precludes\\njurisdiction over these claims is not free from doubt, but we\\nbypass it here and assume statutory subject matter jurisdiction\\nbecause the merits of the remaining claims are quite easily\\nresolved against the party invoking our jurisdiction. See, e.g.,\\nMoriarty v. Colvin, 806 F.3d 664, 668 (1st Cir. 2015) (using\\nhypothetical jurisdiction where the sidestepped jurisdictional\\nquestion is statutory); Umstead v. Umstead, 446 F.3d 17, 20 n.2\\n(1st Cir. 2006) (citing Restoration Pres. Masonry, Inc. v. Grove\\nEur. Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003)) (same).\\n\\n\\n - 31 -\\n\\f As to § 204, the complaint alleges that the Board\\n\\n\\\"invalidate[d]\\\" Law 80 and, in doing so, exceeded its authority\\n\\nunder § 204(a) to review laws that were enacted \\\"after, rather\\n\\nthan before the [Board] became operational.\\\"14 That provision\\n\\nauthorizes the Board to review, for consistency with the governing\\n\\nFiscal Plan, legislation that \\\"a territorial government duly\\n\\nenacts . . . during any fiscal year in which the Oversight Board\\n\\nis in operation.\\\" 48 U.S.C. § 2144(a)(1). It also empowers the\\n\\nBoard to \\\"direct the territorial government to . . . correct the\\n\\nlaw to eliminate\\\" any \\\"significant[] inconsisten[cy]\\\" with the\\n\\nFiscal Plan. Id. § 2144(a)(4)(B). And if \\\"the territorial\\n\\ngovernment fails to comply with\\\" such a directive, the Board may\\n\\n\\\"take such actions as it considers necessary . . . to ensure that\\n\\nthe enactment or enforcement of the law will not adversely affect\\n\\nthe territorial government's compliance with the Fiscal Plan,\\n\\nincluding preventing enforcement or application of the law.\\\" Id.\\n\\n§ 2144(a)(5). But the Board did not \\\"prevent[] enforcement or\\n\\napplication\\\" of Law 80. Id. The complaint fails to state a claim\\n\\nto relief based on § 204.\\n\\n\\n\\n\\n 14 In his brief on appeal, Rivera-Schatz argues instead\\nthat the Board unlawfully bypassed the § 204 process in deeming\\nSenate Bill 1011 to be inconsistent with the Fiscal Plan. This\\ntheory was not raised in the complaint or otherwise before the\\ndistrict court and is therefore waived. See, e.g., French, 729\\nF.3d at 19 n.1.\\n\\n\\n - 32 -\\n\\f The complaint also fails to state a claim to relief based\\n\\non § 205. That provision allows the Board to \\\"at any time submit\\n\\nrecommendations to the Governor or the Legislature on actions the\\n\\nterritorial government may take to ensure compliance with the\\n\\nFiscal Plan.\\\" Id. § 2145(a). The Governor and the Legislative\\n\\nAssembly may then decide \\\"whether the territorial government will\\n\\nadopt the recommendations.\\\" Id. § 2145(b)(1). The complaint\\n\\nalleges that the labor reform package was a § 205 recommendation\\n\\nand that, because § 205 empowers the Legislative Assembly to reject\\n\\nsuch recommendations, the Board violated that provision in making\\n\\nthe reforms mandatory. But the Board did not impose any reforms.\\n\\nInstead, it removed the labor package from the Fiscal Plan after\\n\\nthe Legislative Assembly chose not to repeal Law 80.\\n\\n Next, the sequence of events leading to the\\n\\ncertification of the 2019 Budget refutes the second alleged theory.\\n\\nOn that theory, the complaint specifically says that, although the\\n\\nBoard lacks \\\"the power to impose penalties on Commonwealth officers\\n\\nor employees,\\\"15 the Board certified a 2019 Budget with a cut to\\n\\nthe Legislative Assembly's budget, a cut which the complaint\\n\\nalleges was a punitive response to the Legislative Assembly's\\n\\n\\n\\n 15 The complaint cites § 104(l), which subjects\\nCommonwealth officials to discipline by the Governor, not by the\\nBoard, for violation of \\\"any valid order of the Oversight Board.\\\"\\n48 U.S.C. § 2124(l). We take no position on the meaning or effect\\nof this provision.\\n\\n\\n - 33 -\\n\\fdecision not to repeal Law 80. Yet, the recommendation that the\\n\\nLegislative Assembly's budget should be reduced, along with the\\n\\nbudgets of other government entities, originated in the April\\n\\nFiscal Plan, and preceded by months the Legislative Assembly's\\n\\nactions on Law 80. Further, after the Legislative Assembly\\n\\ndeclined to repeal Law 80, the Board acted within its authority\\n\\nwhen it certified a June Fiscal Plan and 2019 Territory Budget\\n\\nthat included the previously proposed cuts to the Legislative\\n\\nAssembly's operating budget. PROMESA authorizes the Board to adopt\\n\\nFiscal Plans and Budgets incentivizing the Legislative Assembly to\\n\\nenact the Board's recommended policies and accounting for the\\n\\nLegislative Assembly's responses to those recommended policies.\\n\\nSee id. §§ 2141-2151. Indeed, it is difficult to see how, without\\n\\nsuch powers, the Board could be effective in achieving Congress's\\n\\n\\\"purpose\\\" of \\\"provid[ing] a method for [Puerto Rico] to achieve\\n\\nfiscal responsibility and access to the capital markets.\\\" Id.\\n\\n§ 2121(a) (stating Board's purpose).\\n\\n Finally, the complaint alleges that the Board's decision\\n\\nto certify its Budget over the Legislative Assembly's was an\\n\\n\\\"unlawful[] encroach[ment] upon the Legislative Assembly's\\n\\nexclusive legislative power under the Puerto Rico Constitution.\\\"\\n\\nBut PROMESA accounts for the Legislative Assembly's power under\\n\\nthe Constitution: Under PROMESA's preemption provision, the grants\\n\\nof authority to the Board at §§ 201 and 202 to approve Fiscal Plans\\n\\n\\n - 34 -\\n\\fand Budgets \\\"prevail over any general or specific provisions of\\n\\nterritory law,\\\" including provisions of Puerto Rico's Constitution\\n\\nthat are \\\"inconsistent with [PROMESA].\\\" Id. § 2103; see also\\n\\nMaldonado-Burgos, 844 F.3d at 346. PROMESA does generally reserve\\n\\n\\\"the power of [Puerto Rico] to control, by legislation or\\n\\notherwise, the territory.\\\" 48 U.S.C. § 2163. But this reservation\\n\\nof power is expressly \\\"[s]ubject to the limitations set forth in\\n\\n[Titles] I and II of [PROMESA],\\\" where §§ 201 and 202 appear. Id.\\n\\nWhen the Board certified the 2019 Fiscal Plan and Budget, then, it\\n\\nexercised authority granted to it under PROMESA.\\n\\n III.\\n\\n The judgment of the district court is affirmed. No costs\\n\\nare awarded.\\n\\n\\n\\n\\n - 35 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":477,"cells":{"id":{"kind":"number","value":4593290,"string":"4,593,290"},"name":{"kind":"string","value":"Brendan KELLY, Plaintiff, Appellant, v. LIBERTY INSURANCE CORPORATION, D/B/A Liberty Mutual, Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"Kelly v. Liberty Insurance Corp."},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"18-1614P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Kayatta, Souter, Selya\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-1614\\n\\n BRENDAN KELLY,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n LIBERTY INSURANCE CORPORATION,\\n\\n D/B/A LIBERTY MUTUAL,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Joseph N. Laplante, U.S. District Judge]\\n\\n\\n Before\\n\\n Kayatta, Circuit Judge,\\n Souter, Associate Justice,*\\n and Selya, Circuit Judge.\\n\\n\\n Robert A. Stein, with whom Diane L. Perin and The Stein Law\\nFirm, PLLC, were on briefs, for appellant.\\n Nancy D. Adams, with whom Lavinia M. Weizel and Mintz, Levin,\\nCohn, Ferris, Glovsky and Popeo, P.C., were on brief, for appellee.\\n\\n\\n February 22, 2019\\n\\n\\n\\n\\n * Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f SOUTER, Associate Justice. In this diversity case,\\n\\nBrendan Kelly sought a declaratory judgment against Liberty Mutual\\n\\nInsurance Corporation, on his claim that Liberty was bound to\\n\\nprovide uninsured (or underinsured) motorist coverage for his\\n\\nbenefit. See N.H. RSA 259:117. The insurance contract in question\\n\\nwas an umbrella policy issued to Plum Creek Timber Company, Kelly's\\n\\nemployer and the named insured. The District Court granted summary\\n\\njudgment for Liberty Mutual. We affirm.\\n\\n The policy was issued in New Hampshire, whose law\\n\\ncontrols. Thus the insurer bears the burden of proof, N.H. RSA\\n\\n491:22-a, and policy language is to be construed as a reasonable\\n\\nperson would understand it upon more than a casual reading of the\\n\\npolicy as a whole, Russell v. NGM Ins. Co., 176 A.3d 196, 200 (N.H.\\n\\n2017).\\n\\n Liberty's policy was one of two issued to Plum Creek\\n\\nthat provided benefits to its employees as additional insureds\\n\\nwhen acting within the scope of employment, as Liberty recognizes\\n\\nthat Kelly was doing when injured in a two-party highway collision\\n\\nwhile driving a Plum Creek truck. Terms of the umbrella policy,\\n\\nlike those of the underlying basic policy, were regulated by RSA\\n\\n264:15, which included the following mandate relevant here:\\n\\n \\\"[U]mbrella or excess policies . . . shall\\n also provide uninsured motorist coverage equal\\n to the limits of liability purchased, unless\\n the named insured rejects such coverage in\\n writing. Rejection of such coverage by a\\n\\n\\n - 2 -\\n\\f named insured shall constitute a rejection of\\n coverage by all insureds . . . .\\\"\\n\\n There is no dispute that Plum Creek, the named insured,\\n\\ndid reject uninsured motorist coverage and did so in writing. The\\n\\nwriting itself, however, was not incorporated into the policy. It\\n\\nwas not attached to the other policy papers, nor was it mentioned\\n\\nin the text of the policy or in any incorporated attachment. It\\n\\nis this absence from the policy materials of an express mention of\\n\\nthe rejection that is the point on which Kelly's coverage claim\\n\\nturns: Kelly claims that the want of an explicit reference to\\n\\nPlum Creek's written rejection renders the rejection inoperative\\n\\nagainst an additional insured like Kelly, with the consequence\\n\\nthat RSA 264:15 requires provision of uninsured motorist coverage\\n\\nunder the statute's general rule.\\n\\n The apparently fatal flaw undermining this position is\\n\\nthe absence from RSA 264:15 of any requirement that the policy\\n\\nmaterials explicitly speak of the rejection of uninsured motorist\\n\\ncoverage. Rather, it is the requirement that the rejection be \\\"in\\n\\nwriting\\\" that ostensibly regulates the contractual relationship\\n\\nbetween the insurer and the named insured and, derivatively, an\\n\\nadditional insured. Thus, the apparent statutory objective is\\n\\nprotection against an act of rejection that is not well considered\\n\\nand a failure of the insurer to provide the coverage that the named\\n\\ninsured has reason to expect. See Angela Spradling, Hearing on SB\\n\\n\\n\\n - 3 -\\n\\f38 Before the S. Comm. on Commerce, Labor, and Consumer Protection\\n\\n(Comm. Print 2007) (statement of Sen. Lou D'Allesandro).\\n\\n Because the statute does not contain an explicit\\n\\nreference requirement, Kelly is left to argue that his position is\\n\\nimplicit in the statute, on the ground that its object is also to\\n\\nprotect additional insureds who need to know whether they should\\n\\nprocure insurance independently in order to obtain adequate\\n\\nprotection against uninsured motorists. But even assuming that\\n\\nthe statute implicitly protects additional insureds, the statute\\n\\ndoes not support Kelly's argument because the additional insureds\\n\\nare not left in the dark under this umbrella policy as it is. This\\n\\nis clear from three policy provisions that a reasonable and\\n\\nattentive reader would find:\\n\\n 1. \\\"This policy contains all the agreements\\n between you and us concerning the insurance\\n afforded. This policy's terms can be amended\\n or waived only by endorsement issued by us and\\n made a part of this policy.\\\" Umbrella Policy\\n § IV.15.\\n\\n 2. \\\"We will pay those sums . . . that the\\n insured becomes legally obligated to pay as\\n damages because of: (1) 'Bodily injury'; (2)\\n 'Property damage'; or (3) 'Personal and\\n advertising injury'; to which this insurance\\n applies.\\\" Id. § I.1.a.1\\n\\n\\n 1 Though not on point here, this provision is elsewhere\\nlimited. A different provision of the policy states: \\\"This\\ninsurance does not apply to: . . . '[b]odily injury' or 'property\\ndamage' arising out of the ownership, maintenance, use or\\nentrustment to others . . . of any 'auto.'\\\" Umbrella Policy\\n§§ I.2, I.2.f.1.\\n\\n\\n - 4 -\\n\\f 3. \\\"This insurance does not apply to: . . .\\n [a]ny loss, cost or expense payable under or\\n resulting from a[n] . . . uninsured or\\n underinsured motorist law, except to the\\n extent coverage is specifically provided by\\n endorsement to this policy.\\\" Id. §§ I.2,\\n I.2.f.2.\\n\\n These provisions amount to a belt-and-suspenders\\n\\napproach to omission of uninsured motorist coverage in the Plum\\n\\nCreek policy. The integration clause (1) says clearly that there\\n\\nare no relevant agreements outside the policy. The statement of\\n\\nbasic coverage (2) describes the policy's scope as covering sums\\n\\nthat \\\"the insured becomes legally obligated to pay.\\\" Id. § I.1.a.\\n\\nThat is, it describes what insureds are liable to pay to someone\\n\\nelse for damage insureds caused or are responsible for, not what\\n\\ninsureds could claim as recompense for harm inflicted on them by\\n\\nsomeone else, which uninsured motorist coverage provides. We have\\n\\nbeen directed to no policy language that could be construed to\\n\\nprovide the latter. And finally, lest there be any doubt about it\\n\\nin the mind of the reasonable reader, the statement of exclusions\\n\\n(3) expressly indicates that the policy does not cover any \\\"loss,\\n\\ncost or expense payable under or resulting from a[n] . . .\\n\\nuninsured or underinsured motorist law, except to the extent\\n\\ncoverage is specifically provided by endorsement to this policy.\\\"\\n\\nId. § I.2.f.2.\\n\\n It is the certain impact of these policy terms in\\n\\nproviding no uninsured motorist coverage and, for good measure,\\n\\n\\n - 5 -\\n\\fexpressly excluding it, that answers Kelly's arguments for looking\\n\\nbeyond the fact that the statute does not require a coverage\\n\\nrejection to be incorporated into the policy. If Plum Creek\\n\\nemployees, who are additional insureds, wish to assess the extent\\n\\nof their protection against an uninsured or underinsured driver\\n\\nunder the umbrella policy, all they have to do is read it. If\\n\\nthey have any reason to suspect some failure to satisfy the\\n\\nstatutory written rejection requirement, they can ask the named\\n\\ninsured or the insurer for a copy of the written instrument. While\\n\\nit is true that a state whose law does require the rejection to be\\n\\nmade part of the policy as such would save him the trouble, see\\n\\nRomero v. Dairyland Ins. Co., 803 P.2d 243, 244 (N.M. 1990), that\\n\\npossible convenience is a far cry from any statutory ambiguity or\\n\\na clear implication requiring judicial expansion of the plain\\n\\nstatutory text.\\n\\n In particular we see no such implication in the\\n\\nintegration clause, quoted above, providing that the policy states\\n\\nthe complete agreement of the insurer and named insured.\\n\\n\\\"Agreement\\\" is readily understood as referring to the substance or\\n\\ncontent of the parties' contract, and on the point at issue in\\n\\nthis case we have already seen that the policy incorporates the\\n\\nagreement that the policy provides no uninsured motorist coverage.\\n\\nIndeed, on a straightforward reading of the integration clause,\\n\\nthe \\\"policy's terms\\\" can be modified only by an \\\"endorsement issued\\n\\n\\n - 6 -\\n\\fby [the insurer] and made a part of this policy.\\\" Umbrella Policy\\n\\n§ IV.15.\\n\\n Thus, Kelly's position must be seen as a request for\\n\\njudicial action to add to the statute an optional provision that\\n\\nthe legislature was satisfied to omit. New Hampshire law forbids\\n\\nthis. See Carlisle v. Frisbie Memorial Hosp., 888 A.2d 405, 416\\n\\n(N.H. 2005). The judgment is accordingly affirmed.\\n\\n\\n\\n\\n - 7 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370543/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"KAYATTA"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"SELYA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593290/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Brendan KELLY, Plaintiff, Appellant, v. LIBERTY INSURANCE CORPORATION, D/B/A Liberty Mutual, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 18-1614\n\n BRENDAN KELLY,\n\n Plaintiff, Appellant,\n\n v.\n\n LIBERTY INSURANCE CORPORATION,\n\n D/B/A LIBERTY MUTUAL,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Joseph N. Laplante, U.S. District Judge]\n\n\n Before\n\n Kayatta, Circuit Judge,\n Souter, Associate Justice,*\n and Selya, Circuit Judge.\n\n\n Robert A. Stein, with whom Diane L. Perin and The Stein Law\nFirm, PLLC, were on briefs, for appellant.\n Nancy D. Adams, with whom Lavinia M. Weizel and Mintz, Levin,\nCohn, Ferris, Glovsky and Popeo, P.C., were on brief, for appellee.\n\n\n February 22, 2019\n\n\n\n\n * Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f SOUTER, Associate Justice. In this diversity case,\n\nBrendan Kelly sought a declaratory judgment against Liberty Mutual\n\nInsurance Corporation, on his claim that Liberty was bound to\n\nprovide uninsured (or underinsured) motorist coverage for his\n\nbenefit. See N.H. RSA 259:117. The insurance contract in question\n\nwas an umbrella policy issued to Plum Creek Timber Company, Kelly's\n\nemployer and the named insured. The District Court granted summary\n\njudgment for Liberty Mutual. We affirm.\n\n The policy was issued in New Hampshire, whose law\n\ncontrols. Thus the insurer bears the burden of proof, N.H. RSA\n\n491:22-a, and policy language is to be construed as a reasonable\n\nperson would understand it upon more than a casual reading of the\n\npolicy as a whole, Russell v. NGM Ins. Co., 176 A.3d 196, 200 (N.H.\n\n2017).\n\n Liberty's policy was one of two issued to Plum Creek\n\nthat provided benefits to its employees as additional insureds\n\nwhen acting within the scope of employment, as Liberty recognizes\n\nthat Kelly was doing when injured in a two-party highway collision\n\nwhile driving a Plum Creek truck. Terms of the umbrella policy,\n\nlike those of the underlying basic policy, were regulated by RSA\n\n264:15, which included the following mandate relevant here:\n\n \"[U]mbrella or excess policies . . . shall\n also provide uninsured motorist coverage equal\n to the limits of liability purchased, unless\n the named insured rejects such coverage in\n writing. Rejection of such coverage by a\n\n\n - 2 -\n\f named insured shall constitute a rejection of\n coverage by all insureds . . . .\"\n\n There is no dispute that Plum Creek, the named insured,\n\ndid reject uninsured motorist coverage and did so in writing. The\n\nwriting itself, however, was not incorporated into the policy. It\n\nwas not attached to the other policy papers, nor was it mentioned\n\nin the text of the policy or in any incorporated attachment. It\n\nis this absence from the policy materials of an express mention of\n\nthe rejection that is the point on which Kelly's coverage claim\n\nturns: Kelly claims that the want of an explicit reference to\n\nPlum Creek's written rejection renders the rejection inoperative\n\nagainst an additional insured like Kelly, with the consequence\n\nthat RSA 264:15 requires provision of uninsured motorist coverage\n\nunder the statute's general rule.\n\n The apparently fatal flaw undermining this position is\n\nthe absence from RSA 264:15 of any requirement that the policy\n\nmaterials explicitly speak of the rejection of uninsured motorist\n\ncoverage. Rather, it is the requirement that the rejection be \"in\n\nwriting\" that ostensibly regulates the contractual relationship\n\nbetween the insurer and the named insured and, derivatively, an\n\nadditional insured. Thus, the apparent statutory objective is\n\nprotection against an act of rejection that is not well considered\n\nand a failure of the insurer to provide the coverage that the named\n\ninsured has reason to expect. See Angela Spradling, Hearing on SB\n\n\n\n - 3 -\n\f38 Before the S. Comm. on Commerce, Labor, and Consumer Protection\n\n(Comm. Print 2007) (statement of Sen. Lou D'Allesandro).\n\n Because the statute does not contain an explicit\n\nreference requirement, Kelly is left to argue that his position is\n\nimplicit in the statute, on the ground that its object is also to\n\nprotect additional insureds who need to know whether they should\n\nprocure insurance independently in order to obtain adequate\n\nprotection against uninsured motorists. But even assuming that\n\nthe statute implicitly protects additional insureds, the statute\n\ndoes not support Kelly's argument because the additional insureds\n\nare not left in the dark under this umbrella policy as it is. This\n\nis clear from three policy provisions that a reasonable and\n\nattentive reader would find:\n\n 1. \"This policy contains all the agreements\n between you and us concerning the insurance\n afforded. This policy's terms can be amended\n or waived only by endorsement issued by us and\n made a part of this policy.\" Umbrella Policy\n § IV.15.\n\n 2. \"We will pay those sums . . . that the\n insured becomes legally obligated to pay as\n damages because of: (1) 'Bodily injury'; (2)\n 'Property damage'; or (3) 'Personal and\n advertising injury'; to which this insurance\n applies.\" Id. § I.1.a.1\n\n\n 1 Though not on point here, this provision is elsewhere\nlimited. A different provision of the policy states: \"This\ninsurance does not apply to: . . . '[b]odily injury' or 'property\ndamage' arising out of the ownership, maintenance, use or\nentrustment to others . . . of any 'auto.'\" Umbrella Policy\n§§ I.2, I.2.f.1.\n\n\n - 4 -\n\f 3. \"This insurance does not apply to: . . .\n [a]ny loss, cost or expense payable under or\n resulting from a[n] . . . uninsured or\n underinsured motorist law, except to the\n extent coverage is specifically provided by\n endorsement to this policy.\" Id. §§ I.2,\n I.2.f.2.\n\n These provisions amount to a belt-and-suspenders\n\napproach to omission of uninsured motorist coverage in the Plum\n\nCreek policy. The integration clause (1) says clearly that there\n\nare no relevant agreements outside the policy. The statement of\n\nbasic coverage (2) describes the policy's scope as covering sums\n\nthat \"the insured becomes legally obligated to pay.\" Id. § I.1.a.\n\nThat is, it describes what insureds are liable to pay to someone\n\nelse for damage insureds caused or are responsible for, not what\n\ninsureds could claim as recompense for harm inflicted on them by\n\nsomeone else, which uninsured motorist coverage provides. We have\n\nbeen directed to no policy language that could be construed to\n\nprovide the latter. And finally, lest there be any doubt about it\n\nin the mind of the reasonable reader, the statement of exclusions\n\n(3) expressly indicates that the policy does not cover any \"loss,\n\ncost or expense payable under or resulting from a[n] . . .\n\nuninsured or underinsured motorist law, except to the extent\n\ncoverage is specifically provided by endorsement to this policy.\"\n\nId. § I.2.f.2.\n\n It is the certain impact of these policy terms in\n\nproviding no uninsured motorist coverage and, for good measure,\n\n\n - 5 -\n\fexpressly excluding it, that answers Kelly's arguments for looking\n\nbeyond the fact that the statute does not require a coverage\n\nrejection to be incorporated into the policy. If Plum Creek\n\nemployees, who are additional insureds, wish to assess the extent\n\nof their protection against an uninsured or underinsured driver\n\nunder the umbrella policy, all they have to do is read it. If\n\nthey have any reason to suspect some failure to satisfy the\n\nstatutory written rejection requirement, they can ask the named\n\ninsured or the insurer for a copy of the written instrument. While\n\nit is true that a state whose law does require the rejection to be\n\nmade part of the policy as such would save him the trouble, see\n\nRomero v. Dairyland Ins. Co., 803 P.2d 243, 244 (N.M. 1990), that\n\npossible convenience is a far cry from any statutory ambiguity or\n\na clear implication requiring judicial expansion of the plain\n\nstatutory text.\n\n In particular we see no such implication in the\n\nintegration clause, quoted above, providing that the policy states\n\nthe complete agreement of the insurer and named insured.\n\n\"Agreement\" is readily understood as referring to the substance or\n\ncontent of the parties' contract, and on the point at issue in\n\nthis case we have already seen that the policy incorporates the\n\nagreement that the policy provides no uninsured motorist coverage.\n\nIndeed, on a straightforward reading of the integration clause,\n\nthe \"policy's terms\" can be modified only by an \"endorsement issued\n\n\n - 6 -\n\fby [the insurer] and made a part of this policy.\" Umbrella Policy\n\n§ IV.15.\n\n Thus, Kelly's position must be seen as a request for\n\njudicial action to add to the statute an optional provision that\n\nthe legislature was satisfied to omit. New Hampshire law forbids\n\nthis. See Carlisle v. Frisbie Memorial Hosp., 888 A.2d 405, 416\n\n(N.H. 2005). The judgment is accordingly affirmed.\n\n\n\n\n - 7 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Brendan KELLY, Plaintiff, Appellant, v. LIBERTY INSURANCE CORPORATION, D/B/A Liberty Mutual, Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-1614\\n\\n BRENDAN KELLY,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n LIBERTY INSURANCE CORPORATION,\\n\\n D/B/A LIBERTY MUTUAL,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF NEW HAMPSHIRE\\n\\n [Hon. Joseph N. Laplante, U.S. District Judge]\\n\\n\\n Before\\n\\n Kayatta, Circuit Judge,\\n Souter, Associate Justice,*\\n and Selya, Circuit Judge.\\n\\n\\n Robert A. Stein, with whom Diane L. Perin and The Stein Law\\nFirm, PLLC, were on briefs, for appellant.\\n Nancy D. Adams, with whom Lavinia M. Weizel and Mintz, Levin,\\nCohn, Ferris, Glovsky and Popeo, P.C., were on brief, for appellee.\\n\\n\\n February 22, 2019\\n\\n\\n\\n\\n * Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f SOUTER, Associate Justice. In this diversity case,\\n\\nBrendan Kelly sought a declaratory judgment against Liberty Mutual\\n\\nInsurance Corporation, on his claim that Liberty was bound to\\n\\nprovide uninsured (or underinsured) motorist coverage for his\\n\\nbenefit. See N.H. RSA 259:117. The insurance contract in question\\n\\nwas an umbrella policy issued to Plum Creek Timber Company, Kelly's\\n\\nemployer and the named insured. The District Court granted summary\\n\\njudgment for Liberty Mutual. We affirm.\\n\\n The policy was issued in New Hampshire, whose law\\n\\ncontrols. Thus the insurer bears the burden of proof, N.H. RSA\\n\\n491:22-a, and policy language is to be construed as a reasonable\\n\\nperson would understand it upon more than a casual reading of the\\n\\npolicy as a whole, Russell v. NGM Ins. Co., 176 A.3d 196, 200 (N.H.\\n\\n2017).\\n\\n Liberty's policy was one of two issued to Plum Creek\\n\\nthat provided benefits to its employees as additional insureds\\n\\nwhen acting within the scope of employment, as Liberty recognizes\\n\\nthat Kelly was doing when injured in a two-party highway collision\\n\\nwhile driving a Plum Creek truck. Terms of the umbrella policy,\\n\\nlike those of the underlying basic policy, were regulated by RSA\\n\\n264:15, which included the following mandate relevant here:\\n\\n \\\"[U]mbrella or excess policies . . . shall\\n also provide uninsured motorist coverage equal\\n to the limits of liability purchased, unless\\n the named insured rejects such coverage in\\n writing. Rejection of such coverage by a\\n\\n\\n - 2 -\\n\\f named insured shall constitute a rejection of\\n coverage by all insureds . . . .\\\"\\n\\n There is no dispute that Plum Creek, the named insured,\\n\\ndid reject uninsured motorist coverage and did so in writing. The\\n\\nwriting itself, however, was not incorporated into the policy. It\\n\\nwas not attached to the other policy papers, nor was it mentioned\\n\\nin the text of the policy or in any incorporated attachment. It\\n\\nis this absence from the policy materials of an express mention of\\n\\nthe rejection that is the point on which Kelly's coverage claim\\n\\nturns: Kelly claims that the want of an explicit reference to\\n\\nPlum Creek's written rejection renders the rejection inoperative\\n\\nagainst an additional insured like Kelly, with the consequence\\n\\nthat RSA 264:15 requires provision of uninsured motorist coverage\\n\\nunder the statute's general rule.\\n\\n The apparently fatal flaw undermining this position is\\n\\nthe absence from RSA 264:15 of any requirement that the policy\\n\\nmaterials explicitly speak of the rejection of uninsured motorist\\n\\ncoverage. Rather, it is the requirement that the rejection be \\\"in\\n\\nwriting\\\" that ostensibly regulates the contractual relationship\\n\\nbetween the insurer and the named insured and, derivatively, an\\n\\nadditional insured. Thus, the apparent statutory objective is\\n\\nprotection against an act of rejection that is not well considered\\n\\nand a failure of the insurer to provide the coverage that the named\\n\\ninsured has reason to expect. See Angela Spradling, Hearing on SB\\n\\n\\n\\n - 3 -\\n\\f38 Before the S. Comm. on Commerce, Labor, and Consumer Protection\\n\\n(Comm. Print 2007) (statement of Sen. Lou D'Allesandro).\\n\\n Because the statute does not contain an explicit\\n\\nreference requirement, Kelly is left to argue that his position is\\n\\nimplicit in the statute, on the ground that its object is also to\\n\\nprotect additional insureds who need to know whether they should\\n\\nprocure insurance independently in order to obtain adequate\\n\\nprotection against uninsured motorists. But even assuming that\\n\\nthe statute implicitly protects additional insureds, the statute\\n\\ndoes not support Kelly's argument because the additional insureds\\n\\nare not left in the dark under this umbrella policy as it is. This\\n\\nis clear from three policy provisions that a reasonable and\\n\\nattentive reader would find:\\n\\n 1. \\\"This policy contains all the agreements\\n between you and us concerning the insurance\\n afforded. This policy's terms can be amended\\n or waived only by endorsement issued by us and\\n made a part of this policy.\\\" Umbrella Policy\\n § IV.15.\\n\\n 2. \\\"We will pay those sums . . . that the\\n insured becomes legally obligated to pay as\\n damages because of: (1) 'Bodily injury'; (2)\\n 'Property damage'; or (3) 'Personal and\\n advertising injury'; to which this insurance\\n applies.\\\" Id. § I.1.a.1\\n\\n\\n 1 Though not on point here, this provision is elsewhere\\nlimited. A different provision of the policy states: \\\"This\\ninsurance does not apply to: . . . '[b]odily injury' or 'property\\ndamage' arising out of the ownership, maintenance, use or\\nentrustment to others . . . of any 'auto.'\\\" Umbrella Policy\\n§§ I.2, I.2.f.1.\\n\\n\\n - 4 -\\n\\f 3. \\\"This insurance does not apply to: . . .\\n [a]ny loss, cost or expense payable under or\\n resulting from a[n] . . . uninsured or\\n underinsured motorist law, except to the\\n extent coverage is specifically provided by\\n endorsement to this policy.\\\" Id. §§ I.2,\\n I.2.f.2.\\n\\n These provisions amount to a belt-and-suspenders\\n\\napproach to omission of uninsured motorist coverage in the Plum\\n\\nCreek policy. The integration clause (1) says clearly that there\\n\\nare no relevant agreements outside the policy. The statement of\\n\\nbasic coverage (2) describes the policy's scope as covering sums\\n\\nthat \\\"the insured becomes legally obligated to pay.\\\" Id. § I.1.a.\\n\\nThat is, it describes what insureds are liable to pay to someone\\n\\nelse for damage insureds caused or are responsible for, not what\\n\\ninsureds could claim as recompense for harm inflicted on them by\\n\\nsomeone else, which uninsured motorist coverage provides. We have\\n\\nbeen directed to no policy language that could be construed to\\n\\nprovide the latter. And finally, lest there be any doubt about it\\n\\nin the mind of the reasonable reader, the statement of exclusions\\n\\n(3) expressly indicates that the policy does not cover any \\\"loss,\\n\\ncost or expense payable under or resulting from a[n] . . .\\n\\nuninsured or underinsured motorist law, except to the extent\\n\\ncoverage is specifically provided by endorsement to this policy.\\\"\\n\\nId. § I.2.f.2.\\n\\n It is the certain impact of these policy terms in\\n\\nproviding no uninsured motorist coverage and, for good measure,\\n\\n\\n - 5 -\\n\\fexpressly excluding it, that answers Kelly's arguments for looking\\n\\nbeyond the fact that the statute does not require a coverage\\n\\nrejection to be incorporated into the policy. If Plum Creek\\n\\nemployees, who are additional insureds, wish to assess the extent\\n\\nof their protection against an uninsured or underinsured driver\\n\\nunder the umbrella policy, all they have to do is read it. If\\n\\nthey have any reason to suspect some failure to satisfy the\\n\\nstatutory written rejection requirement, they can ask the named\\n\\ninsured or the insurer for a copy of the written instrument. While\\n\\nit is true that a state whose law does require the rejection to be\\n\\nmade part of the policy as such would save him the trouble, see\\n\\nRomero v. Dairyland Ins. Co., 803 P.2d 243, 244 (N.M. 1990), that\\n\\npossible convenience is a far cry from any statutory ambiguity or\\n\\na clear implication requiring judicial expansion of the plain\\n\\nstatutory text.\\n\\n In particular we see no such implication in the\\n\\nintegration clause, quoted above, providing that the policy states\\n\\nthe complete agreement of the insurer and named insured.\\n\\n\\\"Agreement\\\" is readily understood as referring to the substance or\\n\\ncontent of the parties' contract, and on the point at issue in\\n\\nthis case we have already seen that the policy incorporates the\\n\\nagreement that the policy provides no uninsured motorist coverage.\\n\\nIndeed, on a straightforward reading of the integration clause,\\n\\nthe \\\"policy's terms\\\" can be modified only by an \\\"endorsement issued\\n\\n\\n - 6 -\\n\\fby [the insurer] and made a part of this policy.\\\" Umbrella Policy\\n\\n§ IV.15.\\n\\n Thus, Kelly's position must be seen as a request for\\n\\njudicial action to add to the statute an optional provision that\\n\\nthe legislature was satisfied to omit. New Hampshire law forbids\\n\\nthis. See Carlisle v. Frisbie Memorial Hosp., 888 A.2d 405, 416\\n\\n(N.H. 2005). The judgment is accordingly affirmed.\\n\\n\\n\\n\\n - 7 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":478,"cells":{"id":{"kind":"number","value":4593291,"string":"4,593,291"},"name":{"kind":"string","value":"Judith GRAY, Plaintiff, Appellant, v. Thomas A. CUMMINGS ; Town of Athol, Massachusetts, Defendants, Appellees."},"name_abbreviation":{"kind":"string","value":"Gray v. Cummings"},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"18-1303P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Kayatta, Souter, Selya\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge David L. Bazelon Center for Mental Health Law, amici curiae\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1303\\n\\n JUDITH GRAY,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n THOMAS A. CUMMINGS;\\n TOWN OF ATHOL, MASSACHUSETTS,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Timothy S. Hillman, U.S. District Judge]\\n [Hon. David H. Hennessy, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Kayatta, Circuit Judge,\\n Souter, Associate Justice,\\n and Selya, Circuit Judge.\\n\\n\\n Matthew R. Segal, with whom Ruth A. Bourquin, American Civil\\nLiberties Union Foundation of Massachusetts, Inc., Claudia Center,\\nAmerican Civil Liberties Union Foundation, Richard L. Neumeier,\\nand Morrison Mahoney LLP, were on brief, for appellant.\\n David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer\\nCutler Pickering Hale and Dorr LLP, Aaron M. Panner, Kellogg,\\nHansen, Todd, Figel & Frederick, P.L.L.C., Nathalie F. P. Gilfoyle,\\nDeanne M. Ottaviano, and Jennifer Mathis on brief for American\\nPsychiatric Association, American Psychological Association, and\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the Supreme\\nCourt of the United States, sitting by designation.\\n\\fJudge David L. Bazelon Center for Mental Health Law, amici curiae\\n(in support of neither party).\\n Thomas R. Donohue, with whom Deidre Brennan Regan, Leonard H.\\nKesten, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief,\\nfor appellees.\\n Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello,\\nand Petrini & Associates, P.C. on brief for International Municipal\\nLawyers Association and Massachusetts Chiefs of Police\\nAssociation, Inc., amici curiae (in support of affirmance).\\n Pamela B. Petersen on brief for Axon Enterprise, Inc., amicus\\ncuriae (in support of affirmance).\\n\\n\\n February 22, 2019\\n\\f SELYA, Circuit Judge. This appeal arises at the\\n\\nintersection of constitutional law and disability-rights law. It\\n\\ntouches upon a plethora of important issues. Some of these issues\\n\\nrelate to the appropriateness of a police officer's use of a Taser\\n\\nin attempting to regain custody of a mentally ill person who, after\\n\\nbeing involuntarily committed, absconded from a hospital. Others\\n\\nrelate to the applicability vel non of Title II of the Americans\\n\\nwith Disabilities Act (ADA), 42 U.S.C. §§ 12131-65, to ad hoc\\n\\npolice encounters. In the end, we decide the case on the narrowest\\n\\navailable grounds and affirm the entry of summary judgment for the\\n\\ndefendants.\\n\\nI. BACKGROUND\\n\\n This case has its genesis in an on-the-street encounter\\n\\nbetween plaintiff-appellant Judith Gray (who suffers from bipolar\\n\\ndisorder) and Thomas Cummings, a police officer in Athol,\\n\\nMassachusetts (the Town). Because the case was decided below at\\n\\nthe summary judgment stage, we must take the facts in the light\\n\\nmost hospitable to the non-moving party (here, Gray), consistent\\n\\nwith record support. See Houlton Citizens' Coal. v. Town of\\n\\nHoulton, 175 F.3d 178, 184 (1st Cir. 1999). We caution, though,\\n\\nthat we are not obliged to credit \\\"conclusory allegations,\\n\\nimprobable inferences, acrimonious invective, or rank\\n\\nspeculation.\\\" Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).\\n\\n\\n\\n\\n - 3 -\\n\\f Here, the raw facts are largely undisputed. In her\\n\\ndeposition, Gray testified that she \\\"really [didn't] know what\\n\\nhappened\\\" during the incident because she \\\"was in a full-blown\\n\\nmanic phase.\\\" She added that she \\\"wouldn't know Officer Cummings\\n\\nif [she] fell over him\\\" and that she had reviewed the police report\\n\\nprepared by Cummings and did not know whether or not it accurately\\n\\ndescribed the events that had transpired. Nor did she present any\\n\\nother evidence contradicting Cummings's version of the relevant\\n\\nevents. Although we recognize that juries have some leeway to\\n\\n\\\"reject uncontradicted, unimpeached testimony when it is\\n\\nimprobable, inherently contradictory, riddled with omissions, or\\n\\ndelivered in a manner giving rise to doubts,\\\" Quintana-Ruiz v.\\n\\nHyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002), that\\n\\nprinciple has no application here. Accordingly, we elicit many of\\n\\nthe facts from Cummings's account. See Harriman v. Hancock County,\\n\\n627 F.3d 22, 34 (1st Cir. 2010) (finding no material factual\\n\\ndispute when plaintiff \\\"had no memory of being beaten by anyone at\\n\\nanytime relevant to this case\\\"); see also Wertish v. Krueger, 433\\n\\nF.3d 1062, 1065 (8th Cir. 2006) (deeming police officer's version\\n\\nof events \\\"unrefuted\\\" when plaintiff testified that he had very\\n\\nlittle memory of relevant events). Even so, we draw all reasonable\\n\\ninferences from those facts in Gray's favor.\\n\\n On May 2, 2013, Gray — who was then fifty-seven years\\n\\nold — experienced a manic episode and called 911. Athol police\\n\\n\\n - 4 -\\n\\fofficers arrived at Gray's home and transported her to Athol\\n\\nMemorial Hospital. She was admitted to the hospital at around\\n\\n4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, § 12 (authorizing\\n\\ninvoluntary \\\"[e]mergency restraint and hospitalization of persons\\n\\nposing risk of serious harm by reason of mental illness\\\").\\n\\nApproximately six hours later, Gray absconded from the hospital on\\n\\nfoot. Hospital staff called the Athol Police Department, asking\\n\\nthat Gray — \\\"a section 12 patient\\\" — be \\\"picked up and brought\\n\\nback.\\\"\\n\\n Cummings responded to the call and quickly located Gray,\\n\\nwalking barefoot along the sidewalk less than a quarter-mile from\\n\\nthe hospital. Cummings got out of his police cruiser. Gray swore\\n\\nat him, and Cummings told her that she \\\"ha[d] to go back to the\\n\\nhospital.\\\" Gray again used profanity, declared that she was not\\n\\ngoing back, and continued to walk away. In response, Cummings\\n\\nradioed for backup and followed Gray on foot. He repeatedly\\n\\nimplored Gray to return to the hospital, but his importunings were\\n\\ngreeted only by more profanity.\\n\\n Initially, Cummings followed Gray at a distance of\\n\\nroughly one hundred feet. Within twenty-five to thirty seconds,\\n\\nhe closed to within five feet. At that point, Gray stopped, turned\\n\\naround, \\\"clenched her fists, clenched her teeth, flexed her body\\n\\nand stared at [Cummings] as if she was looking right through\\n\\n[him].\\\" She again swore at Cummings and started walking toward\\n\\n\\n - 5 -\\n\\fhim. Cummings grabbed Gray's shirt but he could feel Gray moving\\n\\nher body forward, so he \\\"took her to the ground.\\\" It is undisputed\\n\\nthat Cummings had a distinct height and weight advantage: he was\\n\\nsix feet, three inches tall and weighed 215 pounds, whereas Gray\\n\\nwas five feet, ten inches tall and weighed 140 pounds.\\n\\n Cummings testified that once on the ground, he\\n\\nrepeatedly instructed Gray to place her hands behind her back.\\n\\nShe did not comply. Instead, she \\\"tucked her arms underneath her\\n\\nchest and flex[ed] tightly,\\\" swearing all the while. Cummings\\n\\nwarned Gray that she was \\\"going to get ta[s]ed\\\" if she did not\\n\\nplace her hands behind her back.1 Gray did not heed this warning\\n\\nbut, rather, swore at Cummings again and told him to \\\"do it.\\\"\\n\\nCummings made \\\"one last final demand [for Gray] to stop resisting\\\"\\n\\nand when \\\"Gray refused to listen,\\\" he removed the cartridge from\\n\\nhis Taser, placed it in drive-stun mode,2 and tased Gray's back\\n\\nfor four to six seconds. Gray then allowed him to handcuff her.\\n\\n\\n\\n\\n 1\\n Gray testified she was told that she would be tased if she\\nstood up. She also testified that at some point she was ordered\\nto get to her knees, but that, due to prior injuries, she was\\nunable to obey this order. Given Gray's repeated statements that\\nshe could not recall the details of the encounter and that she\\ncould not identify any factual inaccuracies in Cummings's police\\nreport, we find these assertions insufficient to refute Cummings's\\naccount. See Wertish, 433 F.3d at 1065.\\n 2 Drive-stun mode is the least intrusive setting for a Taser:\\n\\nit delivers only a localized impact to the target. This contrasts\\nwith probe-deployment mode, which disrupts the target's entire\\nnervous system.\\n\\n\\n - 6 -\\n\\f Cummings helped Gray to her feet and called an ambulance,\\n\\nwhich transported Gray to the hospital. According to Gray, she\\n\\nfelt \\\"pain all over\\\" at the moment she was tased, but she \\\"must\\n\\nhave passed out because [she] woke up in Emergency.\\\" Charges were\\n\\nsubsequently filed against Gray for assault on a police officer,\\n\\nresisting arrest, disturbing the peace, and disorderly conduct,\\n\\nbut were eventually dropped.\\n\\n In due season, Gray sued Cummings and the Town in the\\n\\nfederal district court. She invoked federal question\\n\\njurisdiction, see 28 U.S.C. § 1331, and asserted causes of action\\n\\nunder 42 U.S.C. § 1983 and Title II of the ADA, along with\\n\\nsupplemental state-law claims for assault and battery, malicious\\n\\nprosecution, and violations of the Massachusetts Civil Rights Act\\n\\n(MCRA), Mass. Gen. Laws ch. 12, §§ 11H-11I. After the completion\\n\\nof pretrial discovery, the defendants moved for summary judgment.\\n\\nSee Fed. R. Civ. P. 56(a). The district court referred the opposed\\n\\nmotion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.\\n\\nR. Civ. P. 72(b). Following a hearing, the magistrate judge issued\\n\\na report and recommendation, suggesting that the motion be granted.\\n\\nSpecifically, the magistrate judge found no violation of the Fourth\\n\\nAmendment under section 1983 on the part of either Cummings or the\\n\\nTown and no viable state-law claims. As to Cummings, the\\n\\nmagistrate judge added that, in any event, he was entitled to\\n\\nqualified immunity. The magistrate judge further concluded that\\n\\n\\n - 7 -\\n\\fthere had been no abridgement of the ADA because, regardless of\\n\\nGray's disability, Cummings was entitled to employ an \\\"appropriate\\n\\nlevel of force in response to an ongoing threat.\\\"\\n\\n Gray objected to the magistrate judge's report and\\n\\nrecommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.\\n\\n72(b). On de novo review, see Mercy Hosp., Inc. v. Mass. Nurses\\n\\nAss'n, 429 F.3d 338, 343 (1st Cir. 2005), the district court\\n\\nentered a two-sentence text order adopting the magistrate judge's\\n\\nreport and recommendation in substantial part. Because the court\\n\\nagreed that Cummings was entitled to qualified immunity, it\\n\\ndeclined to express any opinion on the magistrate judge's\\n\\ndetermination that \\\"Cummings employed reasonable force under all\\n\\nof the circumstances.\\\"\\n\\n This timely appeal followed. In addition to the parties'\\n\\nbriefs and oral argument, we have had the benefit of able briefing\\n\\nby several amici.\\n\\nII. ANALYSIS\\n\\n We review an order granting summary judgment de novo.\\n\\nSee Houlten Citizens' Coal., 175 F.3d at 184. \\\"We will affirm\\n\\nonly if the record reveals 'that there is no genuine dispute as to\\n\\nany material fact and the movant is entitled to judgment as a\\n\\nmatter of law.'\\\" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.\\n\\n2011) (quoting Fed. R. Civ. P. 56(a)). Against this backdrop, we\\n\\nproceed to Gray's claims.\\n\\n\\n - 8 -\\n\\f A. The Section 1983 Claims.\\n\\n Section 1983 supplies a private right of action against\\n\\na person who, under color of state law, deprives another of \\\"any\\n\\nrights, privileges, or immunities secured by the Constitution and\\n\\n[federal] laws.\\\" 42 U.S.C. § 1983. To maintain a cause of action\\n\\nunder section 1983, \\\"the plaintiff must show a deprivation of a\\n\\nfederally secured right.\\\" Harrington v. City of Nashua, 610 F.3d\\n\\n24, 28 (1st Cir. 2010). Gray has advanced separate section 1983\\n\\nclaims against Cummings and the Town. We address these claims\\n\\nsequentially.\\n\\n 1. Cummings. Gray's section 1983 claim against Cummings\\n\\nis premised on the notion that Cummings used excessive force in\\n\\neffecting her arrest and, thus, violated her Fourth Amendment\\n\\nrights. To prevail on such a claim, \\\"a plaintiff must show that\\n\\nthe defendant employed force that was unreasonable under all the\\n\\ncircumstances.\\\" Morelli v. Webster, 552 F.3d 12, 23 (1st Cir.\\n\\n2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The\\n\\ndegree of force to be used in any given situation is most often a\\n\\njudgment call, which sometimes must be made in a split second by\\n\\na police officer confronted with rapidly evolving circumstances.\\n\\nDetermining whether a particular use of force is reasonable\\n\\nrequires consideration of the totality of the circumstances. See\\n\\nGraham, 490 U.S. at 396. This consideration entails the weighing\\n\\nof a myriad of factors such as \\\"the severity of the crime at issue,\\n\\n\\n - 9 -\\n\\fwhether the suspect pose[d] an immediate threat to the safety of\\n\\nthe officers or others, and whether [the suspect was] actively\\n\\nresisting arrest or attempting to evade arrest by flight.\\\" Id.\\n\\n Our starting point is the question of whether a\\n\\nreasonable jury could find that Cummings violated Gray's Fourth\\n\\nAmendment rights through the use of excessive force. The\\n\\nmagistrate judge answered this question in the negative,\\n\\nconcluding that, as a matter of law, \\\"the single deployment of a\\n\\ntaser in drive stun mode\\\" in these particular circumstances was\\n\\nreasonable. Viewing the record most hospitably to Gray and drawing\\n\\nall reasonable inferences to her behoof, we think that a reasonable\\n\\njury could find that the force employed by Cummings violated the\\n\\nFourth Amendment. We explain briefly.\\n\\n The Town's policies describe a Taser in drive-stun mode\\n\\nas a \\\"pain compliance tool.\\\"3 Thus, the question reduces to whether\\n\\nthe circumstances surrounding the confrontation between Gray and\\n\\nCummings, interpreted in the light most favorable to Gray,\\n\\njustified Cummings's use of such a tool.\\n\\n The magistrate judge analyzed this question in\\n\\naccordance with the Graham factors. In his view, the first factor\\n\\n— \\\"the severity of the crime at issue,\\\" id. — favored Cummings\\n\\n\\n 3 This description is consistent with the descriptions found\\nin the case law. See, e.g., Crowell v. Kirkpatrick, 400 F. App'x\\n592, 595 (2d Cir. 2010) (explaining that drive-stun mode \\\"typically\\ncauses temporary, if significant, pain and no permanent injury\\\").\\n\\n\\n - 10 -\\n\\fbecause \\\"Ms. Gray assaulted [him].\\\" At summary judgment, though,\\n\\nthis assessment is insupportable: it fails to view the facts in\\n\\nthe light most favorable to Gray.\\n\\n In this regard, we think it important that Cummings was\\n\\nnot called to the scene to investigate a crime; he was there to\\n\\nreturn a person suffering from mental illness to the hospital.\\n\\nWhen the subject of a seizure has not committed any crime, the\\n\\nfirst Graham factor ordinarily cuts in the subject's favor. See\\n\\nEstate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810\\n\\nF.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not submit to\\n\\nCummings's orders. Withal, this failure to obey was at most a\\n\\nminor crime, not one that would tip the first Graham factor in\\n\\nCummings's favor. See id. at 899-900.\\n\\n Nor does the alleged assault tilt the scales. In\\n\\nCummings's view, the assault occurred when, after Gray walked\\n\\ntoward him, he grabbed her shirt and she \\\"continued pushing against\\n\\n[his] arm.\\\" In the circumstances of this case, we think that a\\n\\nreasonable jury could find that the facts did not support the\\n\\ncharacterization of Gray's actions as an \\\"assault.\\\"\\n\\n The same kind of defect mars the magistrate judge's\\n\\ndetermination that the second Graham factor — \\\"whether the suspect\\n\\nposes an immediate threat to the safety of the officers or others,\\\"\\n\\n490 U.S. at 396 — favored Cummings. It is true that Gray was a\\n\\nsection 12 patient, that is, an individual who has been\\n\\n\\n - 11 -\\n\\finvoluntarily committed to a hospital pursuant to Mass. Gen. Laws\\n\\nch. 123, § 12, based on a determination by a qualified medical\\n\\nprofessional (or, in emergency situations, a police officer) that\\n\\n\\\"failure to hospitalize [her] would create a likelihood of serious\\n\\nharm by reason of mental illness.\\\" Id. § 12(a). It is also true\\n\\nthat Cummings knew as much. Although a jury could supportably\\n\\nfind on these facts that Cummings reasonably believed that Gray\\n\\nposed a danger to him, it could supportably find instead that Gray\\n\\n— who was shuffling down the sidewalk barefoot and unarmed — only\\n\\nposed a danger to herself (especially given Cummings's distinct\\n\\nheight and weight advantage). So, too, a jury could supportably\\n\\nfind that, at the time of the tasing, Gray had been subdued to a\\n\\npoint at which she no longer posed a threat.\\n\\n The magistrate judge concluded that the final Graham\\n\\nfactor — whether Gray was \\\"actively resisting arrest,\\\" 490 U.S. at\\n\\n396 — favored Cummings. This conclusion seems unimpugnable given\\n\\nCummings's testimony that he asked Gray several times to put her\\n\\nhands behind her back, but that she would not do so.\\n\\n The short of it is that the Graham factors point in\\n\\nconflicting directions. Seen through the prism of the totality of\\n\\nthe circumstances, the evidence is subject to interpretation and\\n\\ncan support plausible though inconsistent inferences. Drawing\\n\\nthose inferences beneficially to Gray and aware that Cummings not\\n\\nonly had her down on the ground but also outweighed her by some\\n\\n\\n - 12 -\\n\\fseventy-five pounds, a reasonable jury could find that Gray had\\n\\ncommitted no crime and that she posed no threat to Cummings when\\n\\nhe tased her. When all is said and done, we think that Gray has\\n\\npresented sufficient evidence to make out a jury question as to\\n\\nwhether Cummings used excessive force. See, e.g., Morelli, 552\\n\\nF.3d at 23 (finding triable excessive force claim when officer\\n\\nslammed plaintiff, who \\\"at worst, was suspected of being a petty\\n\\nthief,\\\" against wall); Alexis v. McDonald's Rests. of Mass., Inc.,\\n\\n67 F.3d 341, 353 (1st Cir. 1995) (concluding that jury could find\\n\\nexcessive force when officer seized and dragged plaintiff to\\n\\neffectuate arrest for crime of trespassing in public restaurant);\\n\\nsee also Estate of Armstrong, 810 F.3d at 906 (finding excessive\\n\\nforce when officer tased \\\"mentally ill man being seized for his\\n\\nown protection, [who] was seated on the ground, was hugging a post\\n\\nto ensure his immobility, . . . and had failed to submit to a\\n\\nlawful seizure for only 30 seconds\\\").\\n\\n This conclusion does not end our inquiry. Cummings has\\n\\ninvoked the defense of qualified immunity. Qualified immunity is\\n\\na doctrine aimed at providing government officials (including\\n\\npolice officers) a modicum of protection from civil damages\\n\\nliability for actions taken under color of state law. See Harlow\\n\\nv. Fitzgerald, 457 U.S. 800, 818 (1982); McKenney v. Mangino, 873\\n\\nF.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018).\\n\\nThis protection attaches \\\"to all but the plainly incompetent or\\n\\n\\n - 13 -\\n\\fthose who knowingly violate the law.\\\" Malley v. Briggs, 475 U.S.\\n\\n335, 341 (1986). Thus, a government official may invoke the\\n\\ndefense of qualified immunity when his actions, though causing\\n\\ninjury, did \\\"not violate clearly established statutory or\\n\\nconstitutional rights of which a reasonable person would have\\n\\nknown.\\\" Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)\\n\\n(quoting Harlow, 457 U.S. at 818).\\n\\n The qualified immunity analysis has two facets: \\\"[t]he\\n\\ncourt must determine whether the defendant violated the\\n\\nplaintiff's constitutional rights\\\" and then must determine\\n\\n\\\"whether the allegedly abridged right was 'clearly established' at\\n\\nthe time of the defendant's claimed misconduct.\\\" Id. at 155\\n\\n(quoting McKenney, 873 F.3d at 81). In this instance, we already\\n\\nhave decided that a jury could find that Cummings violated Gray's\\n\\nFourth Amendment rights. We must now determine whether the alleged\\n\\nright was clearly established at the time of Cummings's violation.\\n\\nSee id. Specifically, we must ask whether, given the circumstances\\n\\nat hand, Gray's right to be free from the degree of force that\\n\\nCummings used — particularly, the Taser — was clearly established.\\n\\n This question, too, has two facets. First, the plaintiff\\n\\nmust \\\"identify either 'controlling authority' or a 'consensus of\\n\\ncases of persuasive authority' sufficient to send a clear signal\\n\\nto a reasonable official that certain conduct falls short of the\\n\\nconstitutional norm.\\\" Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir.\\n\\n\\n - 14 -\\n\\f2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Second,\\n\\nthe plaintiff must demonstrate that \\\"an objectively reasonable\\n\\nofficial in the defendant's position would have known that his\\n\\nconduct violated that rule of law.\\\" Id. This latter step is\\n\\ndesigned to achieve a prophylactic purpose: it affords \\\"some\\n\\nbreathing room for a police officer even if he has made a mistake\\n\\n(albeit a reasonable one) about the lawfulness of his conduct.\\\"\\n\\nConlogue, 906 F.3d at 155. Taken together, these steps normally\\n\\nrequire that, to defeat a police officer's qualified immunity\\n\\ndefense, a plaintiff must \\\"identify a case where an officer acting\\n\\nunder similar circumstances was held to have violated the Fourth\\n\\nAmendment.\\\" City of Escondido v. Emmons, 139 S. Ct. 500, 504\\n\\n(2019) (per curiam) (quoting District of Columbia v. Wesby, 138 S.\\n\\nCt. 577, 590 (2018)); see Anderson v. Creighton, 483 U.S. 635,\\n\\n639-40 (1987). Although such a case need not arise on identical\\n\\nfacts, it must be sufficiently analogous to make pellucid to an\\n\\nobjectively reasonable officer the unlawfulness of his actions.4\\n\\nSee City of Escondido, 139 S. Ct. at 504; Ashcroft v. al-Kidd, 563\\n\\nU.S. 731, 741 (2011).\\n\\n\\n\\n\\n 4 Sometimes, however, this requirement is relaxed. In\\ncircumstances in which a violation of rights is apparent, a\\nplaintiff may thwart a qualified immunity defense simply by\\ndemonstrating that \\\"the unlawfulness of the officer's conduct is\\nsufficiently clear even though existing precedent does not address\\nsimilar circumstances.\\\" City of Escondido, 139 S. Ct. at 504\\n(quoting Wesby, 138 S. Ct. at 590). This is not such a case.\\n\\n\\n - 15 -\\n\\f The district court determined that \\\"the right not to be\\n\\ntased while offering non-violent stationary, resistance to a\\n\\nlawful seizure was not clearly established at the time of the\\n\\nconfrontation between Ms. Gray and Officer Cummings\\\" and,\\n\\ntherefore, ruled that Cummings was entitled to qualified immunity.\\n\\nWe examine the foundation on which this ruling rests.\\n\\n We begin with Estate of Armstrong, in which the Fourth\\n\\nCircuit conducted a similar qualified immunity analysis.\\n\\nSpecifically, the court considered whether the \\\"right not to be\\n\\nsubjected to tasing while offering stationary and non-violent\\n\\nresistance to a lawful seizure\\\" was clearly established. 810 F.3d\\n\\nat 907. Armstrong, who suffered from bipolar disorder and paranoid\\n\\nschizophrenia, had absconded from the hospital to which he had\\n\\nbeen committed. See id. at 896. The police were called and\\n\\nlocated Armstrong near the hospital's main entrance. See id.\\n\\nThree police officers approached Armstrong, who responded by\\n\\n\\\"wrapping himself around a four-by-four post that was supporting\\n\\na nearby stop sign.\\\" Id. The officers attempted to pry\\n\\nArmstrong's arms and legs loose but were unsuccessful. See id.\\n\\nOne of the officers then warned Armstrong that he would be tased\\n\\nif he did not let go of the post. See id. at 897. Armstrong did\\n\\nnot comply, and the officer proceeded to tase him five times in\\n\\ndrive-stun mode, over a span of approximately two minutes. See\\n\\nid. Even though Armstrong continued resisting, he was pried loose\\n\\n\\n - 16 -\\n\\ffrom the post. See id. A struggle ensued, resulting in\\n\\nArmstrong's demise. See id. at 897-98.\\n\\n Although the court found that a jury could find the\\n\\nofficers had used excessive force, see id. at 906, it nonetheless\\n\\naffirmed summary judgment in favor of the defendants. The court\\n\\nreasoned that even though its finding that the officers had\\n\\nviolated Armstrong's Fourth Amendment rights was supported by\\n\\nprecedent, the law \\\"was not so settled [as of April 2011] such\\n\\nthat 'every reasonable official would have understood that' tasing\\n\\nArmstrong was unconstitutional\\\" under the circumstances. Id. at\\n\\n908 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per\\n\\ncuriam)).5\\n\\n The Fourth Circuit's conclusion in Estate of Armstrong\\n\\n— that the use of a Taser in drive-stun mode against a noncompliant\\n\\nand resisting individual was not clearly unconstitutional as of\\n\\n2011 — is not an outlier. Prior to Cummings's encounter with Gray,\\n\\nseveral other courts of appeals had found the use of a Taser\\n\\nreasonable in situations involving subjects who acted with a level\\n\\nof resistance analogous to that displayed by Gray. See, e.g.,\\n\\nHagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 507 (6th\\n\\nCir. 2012) (granting qualified immunity for use of Taser in drive-\\n\\n\\n\\n\\n 5\\n We note that Estate of Armstrong was decided in 2016 and,\\nthus, Cummings did not have the benefit of the Fourth Circuit's\\ndecision at the time of the incident sub judice.\\n\\n\\n - 17 -\\n\\fstun mode in 2007 when plaintiff \\\"refused to be handcuffed,\\\" \\\"lay\\n\\ndown on the pavement and locked his arms tightly under his body,\\n\\nkicking his feet and continuing to scream\\\"); Draper v. Reynolds,\\n\\n369 F.3d 1270, 1278 (11th Cir. 2004) (finding single use of Taser\\n\\nin 2001 reasonable when plaintiff \\\"used profanity, moved around\\n\\nand paced in agitation,\\\" and \\\"repeatedly refused to comply with\\n\\n[the officer]'s verbal commands\\\" during traffic stop). Thus, an\\n\\nobjectively reasonable officer in Cummings's place and stead could\\n\\nreasonably have believed, in 2013, that the use of a Taser was\\n\\ngenerally permissible when a subject refuses to be handcuffed.\\n\\n Even so, the level of force that is constitutionally\\n\\npermissible in dealing with a mentally ill person \\\"differs both in\\n\\ndegree and in kind from the use of force that would be justified\\n\\nagainst a person who has committed a crime or who poses a threat\\n\\nto the community.\\\" Bryan v. MacPherson, 630 F.3d 805, 829 (9th\\n\\nCir. 2010). Consequently, a subject's mental illness is a factor\\n\\nthat a police officer must take into account in determining what\\n\\ndegree of force, if any, is appropriate. See Estate of Armstrong,\\n\\n810 F.3d at 900; Champion v. Outlook Nashville, Inc., 380 F.3d\\n\\n893, 904 (6th Cir. 2004). Here, however, the only thing that\\n\\nCummings knew about Gray's mental health was that she had been\\n\\ninvoluntarily committed under section 12; he did not know whether\\n\\nGray had been deemed a danger to others or only to herself. Given\\n\\nthe skimpiness of this information, we think that an objectively\\n\\n\\n - 18 -\\n\\freasonable police officer, standing in Cummings's shoes, would\\n\\nhave had to be prepared for the worst.\\n\\n Based on the body of available case law, we hold that an\\n\\nobjectively reasonable police officer in May of 2013 could have\\n\\nconcluded that a single use of the Taser in drive-stun mode to\\n\\nquell a nonviolent, mentally ill individual who was resisting\\n\\narrest, did not violate the Fourth Amendment. Even if such a\\n\\nconclusion was constitutionally mistaken — as a jury could find on\\n\\nthe facts of this case — Cummings is shielded by qualified\\n\\nimmunity.\\n\\n Gray demurs. She identifies two of our precedents and\\n\\nposits that — whether viewed singly or in combination — they evince\\n\\nthe clearly established nature of her right to be free from tasing.\\n\\nBoth precedents are inapposite.\\n\\n The case on which Gray relies most heavily is Parker v.\\n\\nGerrish, 547 F.3d 1 (1st Cir. 2008). There, the plaintiff had\\n\\nbeen stopped on suspicion of driving while intoxicated. After the\\n\\nplaintiff failed several sobriety tests, the officer tried to\\n\\narrest him. See id. at 3-4. When the plaintiff resisted, the\\n\\nofficer drew his Taser and ordered the plaintiff to turn around\\n\\nand place his hands behind his back. See id. at 4. The plaintiff\\n\\ncomplied but clasped his right wrist with his left hand. See id.\\n\\nAnother officer approached and cuffed the plaintiff's left wrist.\\n\\nSee id. There was substantial dispute about what happened next,\\n\\n\\n - 19 -\\n\\fbut according to the plaintiff's account (to which the court was\\n\\nrequired to defer in the posture of the case), he released his\\n\\nright wrist, yet was tased anyway. See id. at 4-5. On these\\n\\nfacts, we held that the police officer could be found to have\\n\\nviolated the Fourth Amendment by tasing an unarmed suspect who, in\\n\\nthe course of an arrest, \\\"present[ed] no significant 'active\\n\\nresistance' or threat\\\"6 at the time of the tasing. Id. at 10-11.\\n\\n The case at hand is a horse of a quite different hue.\\n\\nThere is no indication here that Gray, despite ample opportunity\\n\\nto do so, ever complied with Cummings's command to put her hands\\n\\nbehind her back. Even when Cummings warned her that she would be\\n\\ntased, she did not comply but, rather, continued cursing and told\\n\\nhim to \\\"do it.\\\"\\n\\n The second case upon which Gray relies is Ciolino v.\\n\\nGikas, 861 F.3d 296 (1st Cir. 2017), which involved events\\n\\noccurring in 2013. There, a police officer grabbed the plaintiff\\n\\nin a crowded street and forced him to the ground without giving\\n\\nhim any warning. See id. at 299-300. We held that the jury could\\n\\nfind that although the plaintiff had \\\"disobeyed a police order,\\\"\\n\\nhe \\\"was not given a chance to submit peacefully to arrest before\\n\\nsignificant force was used to subdue him\\\" and, therefore, \\\"an\\n\\n\\n\\n\\n 6 We had no occasion in Parker to mull the implications of a\\nqualified immunity defense. There, the officer waived any such\\ndefense. See 547 F.3d at 13.\\n\\n\\n - 20 -\\n\\f'objectively reasonable police officer' would have taken a more\\n\\nmeasured approach.\\\" Id. at 304 (quoting Raiche v. Pietroski, 623\\n\\nF.3d 30, 39 (1st Cir. 2010)).\\n\\n Once again, the case at hand is readily distinguishable.\\n\\nCummings repeatedly told Gray that she needed to return to the\\n\\nhospital, and she adamantly refused to obey. What is more, he\\n\\nwarned her that he would use his Taser if she remained\\n\\nintransigent, yet she defied the warning. Thus — unlike the\\n\\nplaintiff in Ciolino — Gray was afforded an adequate opportunity\\n\\nto submit to Cummings's authority before she was tased.\\n\\n Gray cites a number of other cases in support of her\\n\\nargument that her resistance was \\\"passive\\\" rather than \\\"active\\\"\\n\\nand, thus, did not justify the use of the Taser. This argument is\\n\\ndeeply flawed. Labels such as \\\"passive\\\" and \\\"active\\\" are\\n\\ngeneralizations and cannot serve as substitutes for a careful\\n\\nanalysis of the facts of a particular case. In point of fact, the\\n\\nSupreme Court — in an excessive force case — recently cautioned\\n\\nagainst \\\"defin[ing] the clearly established right at a high level\\n\\nof generality.\\\" City of Escondido, 139 S. Ct. at 503. There, the\\n\\nCourt reversed a denial of qualified immunity sought by an officer\\n\\nwho had tackled a man after he had closed the door to a dwelling\\n\\ndespite being instructed not to do so and \\\"tried to brush past\\\"\\n\\nthe officer. Id. at 502. The Court criticized the Ninth Circuit\\n\\nfor relying on \\\"case law [that] involved police force against\\n\\n\\n - 21 -\\n\\findividuals engaged in passive resistance\\\" without making any\\n\\n\\\"effort to explain how that case law prohibited [the officer]'s\\n\\nactions in this case.\\\" Id. at 503-04 (emphasis in original). And\\n\\nin all events, respectable authority suggests that refusing to be\\n\\nhandcuffed constitutes active resistance and may justify the use\\n\\nof a Taser. See Hagans, 695 F.3d at 509 (collecting cases).\\n\\n We add, moreover, that several of the cases cited by\\n\\nGray involve deployment of a Taser subsequent to an initial Taser\\n\\nshock. See, e.g., Meyers v. Baltimore County, 713 F.3d 723, 733-\\n\\n34 (4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 F.3d 856, 859-\\n\\n63 (7th Cir. 2010). Nothing of that sort happened here.7\\n\\n In the last analysis, Gray does not cite any case,\\n\\ndecided before her encounter with Cummings, that arose out of the\\n\\nuse of a Taser on facts fairly comparable to the facts at hand.\\n\\nIn the absence of either controlling authority or a consensus of\\n\\n\\n\\n\\n 7 In furtherance of her argument that an objectively\\nreasonable officer standing in Cummings's shoes would have known\\nthat the degree of force used was unreasonable, Gray argues in her\\nreply brief that the Town has a policy against tasing someone\\n\\\"known to be suffering from severe mental illness.\\\" This argument\\nis doubly waived: first, it was not advanced in the district\\ncourt, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st\\nCir. 1991) (\\\"It is hornbook law that theories not raised squarely\\nin the district court cannot be surfaced for the first time on\\nappeal.\\\"); and second, it was not advanced in Gray's opening brief\\nin this court, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86\\n(1st Cir. 1990) (\\\"[B]ecause the argument . . . surfac[ed] only in\\n[appellant's] reply brief, it has been waived.\\\").\\n\\n\\n - 22 -\\n\\fpersuasive authority to the contrary, we conclude that Cummings\\n\\nwas entitled to qualified immunity.\\n\\n As a fallback, Gray argues that the doctrine of qualified\\n\\nimmunity, as expounded by the Supreme Court, should be modified or\\n\\noverruled. Gray did not raise this argument in the district court\\n\\nand, thus, cannot advance it here. See Teamsters Union, Local No.\\n\\n59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (\\\"If\\n\\nany principle is settled in this circuit, it is that, absent the\\n\\nmost extraordinary circumstances, legal theories not raised\\n\\nsquarely in the lower court cannot be broached for the first time\\n\\non appeal.\\\").\\n\\n 2. Town of Athol. In addition to her section 1983 claim\\n\\nagainst Cummings, Gray makes a section 1983 failure-to-train claim\\n\\nagainst the Town. She alleges that her Fourth Amendment rights\\n\\nwere violated by the Town's deficient training of its police\\n\\nofficers (including Cummings) with respect to proper protocols for\\n\\ninteracting with persons suffering from mental illness. Gray's\\n\\nevidence, though, falls well short of making out a failure-to-\\n\\ntrain claim against the Town.\\n\\n We cut directly to the chase. \\\"Triggering municipal\\n\\nliability on a claim of failure to train requires a showing that\\n\\nmunicipal decisionmakers either knew or should have known that\\n\\ntraining was inadequate but nonetheless exhibited deliberate\\n\\nindifference to the unconstitutional effects of those\\n\\n\\n - 23 -\\n\\finadequacies.\\\" Haley v. City of Boston, 657 F.3d 39, 52 (1st Cir.\\n\\n2011). A plaintiff typically must show a \\\"pattern of similar\\n\\nconstitutional violations by untrained employees . . . to\\n\\ndemonstrate deliberate indifference for purposes of failure to\\n\\ntrain.\\\" Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bd.\\n\\nof Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).\\n\\nHere, however, Gray has made no such showing.\\n\\n In an effort to close this gap, Gray offers expert\\n\\ntestimony about appropriate police practices for interacting with\\n\\npersons with disabilities. Building on this foundation, she\\n\\ninsists that \\\"coupled with the facts of the encounter,\\\" such\\n\\nevidence \\\"create[s] questions of material fact as to whether the\\n\\nTown failed to properly train Cummings.\\\" In our view, these\\n\\nassertions are insufficient to support a failure-to-train claim.\\n\\nIt is not enough to show that the Town's training regimen was\\n\\nfaulty; Gray must also show that the Town knew or had reason to\\n\\nbelieve that such a regimen had unconstitutional effects. Gray\\n\\nhas tendered no evidence of past violations sufficient to put the\\n\\nTown on notice of such effects. Given this yawning gap in her\\n\\nproof, Gray has not made out a genuine issue of material fact as\\n\\nto whether the Town was deliberately indifferent to the risk of\\n\\nthe alleged constitutional violation. Consequently, her failure-\\n\\nto-train claim founders. See id. at 72; Hill v. Walsh, 884 F.3d\\n\\n16, 24 (1st Cir. 2018).\\n\\n\\n - 24 -\\n\\f B. The State-Law Claims.\\n\\n Gray's supplemental state-law claims need not detain us.\\n\\nGray concedes that the assault and battery and MCRA claims \\\"rise\\n\\nand fall with . . . [her] § 1983 claim.\\\" This concession, coupled\\n\\nwith Gray's failure to offer any developed argumentation with\\n\\nrespect to these claims, ends our inquiry. See Torres-Arroyo v.\\n\\nRullán, 436 F.3d 1, 7 (1st Cir. 2006) (\\\"Gauzy generalizations are\\n\\nmanifestly insufficient to preserve an issue for appellate\\n\\nreview.\\\"). We deem waived any claim of error related to the\\n\\ndisposition of Gray's assault and battery and MCRA claims.\\n\\n The magistrate judge also granted summary judgment on\\n\\nGray's malicious prosecution claim. On appeal, Gray does not\\n\\nchallenge this ruling. Consequently, we deem the malicious\\n\\nprosecution claim abandoned. See United States v. Zannino, 895\\n\\nF.2d 1, 17 (1st Cir. 1990) (explaining that \\\"issues adverted to in\\n\\na perfunctory manner, unaccompanied by some effort at developed\\n\\nargumentation, are deemed waived\\\").\\n\\n C. The ADA Claim.\\n\\n There is one last hill to climb: Gray's claim against\\n\\nthe Town under the ADA. Some background is helpful.\\n\\n Congress enacted the ADA \\\"to provide a clear and\\n\\ncomprehensive national mandate for the elimination of\\n\\ndiscrimination against individuals with disabilities.\\\" 42 U.S.C.\\n\\n§ 12101(b)(1). Title I proscribes disability-related\\n\\n\\n - 25 -\\n\\fdiscrimination in employment, see id. § 12112, and Title III\\n\\nproscribes disability-related discrimination in the provision of\\n\\npublic accommodations (such as hotels, restaurants, and theaters),\\n\\nsee id. §§ 12182, 12184. Neither of these titles is implicated\\n\\nhere.\\n\\n Title II broadly provides that \\\"no qualified individual\\n\\nwith a disability shall, by reason of such disability, be excluded\\n\\nfrom participation in or be denied the benefits of the services,\\n\\nprograms, or activities of a public entity, or be subjected to\\n\\ndiscrimination by any such entity.\\\" Id. § 12132. Gray's ADA claim\\n\\nagainst the Town is rooted in this Title.\\n\\n To establish a violation of Title II, a plaintiff must\\n\\nshow:\\n\\n (1) that [s]he is a qualified individual with\\n a disability; (2) that [s]he was either\\n excluded from participation in or denied the\\n benefits of some public entity's services,\\n programs, or activities or was otherwise\\n discriminated against; and (3) that such\\n exclusion, denial of benefits, or\\n discrimination was by reason of the\\n plaintiff's disability.\\n\\nBuchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting\\n\\nParker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.\\n\\n2000)). A \\\"qualified individual with a disability\\\" is\\n\\n an individual with a disability who, with or\\n without reasonable modifications to rules,\\n policies, or practices, the removal of\\n architectural, communication, or\\n transportation barriers, or the provision of\\n\\n\\n - 26 -\\n\\f auxiliary aids and services, meets the\\n essential eligibility requirements for the\\n receipt of services or the participation in\\n programs or activities provided by a public\\n entity.\\n\\n42 U.S.C. § 12131(2). In turn, the term \\\"public entity\\\" includes\\n\\n\\\"any State or local government\\\" as well as \\\"any department, agency,\\n\\nspecial purpose district, or other instrumentality of a State or\\n\\nStates or local government.\\\" Id. § 12131(1).\\n\\n The Town does not gainsay either that Gray is a qualified\\n\\nperson with a disability or that the Town is a public entity.\\n\\nThus, the focal point of our inquiry is whether, during Gray's\\n\\nencounter with Cummings, she was \\\"denied the benefits of [the\\n\\nTown's] services, programs, or activities or was otherwise\\n\\ndiscriminated against . . . by reason of [her] disability.\\\"\\n\\nBuchanan, 469 F.3d at 170-71.\\n\\n Courts have identified two general theories describing\\n\\nways in which a police officer may violate the ADA in executing an\\n\\narrest. The first such theory (which we shall call the \\\"effects\\\"\\n\\ntheory) holds that a violation may be found when \\\"police wrongly\\n\\narrested someone with a disability because they misperceived the\\n\\neffects of that disability as criminal activity.\\\" Gohier v.\\n\\nEnright, 186 F.3d 1216, 1220 (10th Cir. 1999). The second such\\n\\ntheory (which we shall call the \\\"accommodation\\\" theory) holds that\\n\\na violation may be found when police officers \\\"properly\\n\\ninvestigated and arrested a person with a disability for a crime\\n\\n\\n - 27 -\\n\\funrelated to that disability, [but] they failed to reasonably\\n\\naccommodate the person's disability in the course of investigation\\n\\nor arrest, causing the person to suffer greater injury or indignity\\n\\nin that process than other arrestees.\\\" Id. at 1220-21. Before\\n\\nus, Gray advances arguments under both theories.8 With respect to\\n\\nthe \\\"effects\\\" theory, Gray argues that the criminal charges filed\\n\\nagainst her are an indication that Cummings misperceived her\\n\\nfailure to follow his commands as a crime rather than a symptom of\\n\\nher disability. With respect to the \\\"accommodation\\\" theory, Gray\\n\\nargues that Cummings should have accommodated her disability by\\n\\n\\\"employ[ing] . . . time, patience, nonthreatening communication,\\n\\nmonitoring from a distance, and contacting and waiting for\\n\\nassistance such as an ambulance or a mental health care\\n\\nprofessional.\\\"\\n\\n In mounting our inquiry, we start with the\\n\\nuncontroversial premise that the services, programs, and\\n\\nactivities of a municipal police department are generally subject\\n\\nto the provisions of Title II of the ADA. See, e.g., Haberle v.\\n\\n\\n\\n\\n 8 The magistrate judge concluded that \\\"Gray's complaint very\\nclearly proceeds solely on the basis of the second theory of\\nliability — that is, an alleged failure to reasonably accommodate.\\\"\\nThis conclusion seems to overlook the allegation in Gray's amended\\ncomplaint that the Town \\\"brought criminal charges against [Gray]\\nwithout taking her mental illness into account.\\\" Even so, any\\nerror was harmless: the magistrate judge prudently considered the\\nmerits of Gray's arguments under both the \\\"effects\\\" theory and the\\n\\\"accommodation\\\" theory.\\n\\n\\n - 28 -\\n\\fTroxel, 885 F.3d 170, 179-80 (3d Cir. 2018); Gorman v. Bartch, 152\\n\\nF.3d 907, 912 (8th Cir. 1998). Yet, three questions loom that are\\n\\nmatters of first impression in this circuit:\\n\\n Does Title II apply to ad hoc police encounters\\n\\n with members of the public during investigations\\n\\n and arrests, and if so, to what extent?\\n\\n Assuming that Title II applies to the encounter\\n\\n that occurred here, may a public entity be held\\n\\n liable under Title II for a line employee's actions9\\n\\n on a theory of respondeat superior?\\n\\n Is proof of a defendant's deliberate indifference\\n\\n (as opposed to discriminatory animus) sufficient to\\n\\n support a plaintiff's claim for damages under Title\\n\\n II?\\n\\nWe are reluctant to plunge headlong into these murky waters. As\\n\\nwe explain below, the answers to these questions are less than\\n\\ncertain, and adjudicating Gray's ADA claim against the Town does\\n\\nnot require us to run this gauntlet.\\n\\n The first question asks whether and to what extent Title\\n\\nII of the ADA applies to ad hoc police encounters. The Fifth\\n\\nCircuit has held that \\\"Title II does not apply to an officer's on-\\n\\nthe-street responses to reported disturbances or other similar\\n\\n\\n 9 We use the term \\\"line employee\\\" to describe an employee who\\nis not involved in policymaking.\\n\\n\\n - 29 -\\n\\fincidents, whether or not those calls involve subjects with mental\\n\\ndisabilities, prior to the officer's securing the scene and\\n\\nensuring that there is no threat to human life.\\\" Hainze v.\\n\\nRichards, 207 F.3d 795, 801 (5th Cir. 2000). Other circuits,\\n\\nthough, have charted a different course, holding that Title II\\n\\napplies without exception to ad hoc police encounters. See, e.g.,\\n\\nHaberle, 885 F.3d at 180 (concluding that \\\"police officers may\\n\\nviolate the ADA when making an arrest by failing to provide\\n\\nreasonable accommodations for a qualified arrestee's disability\\\");\\n\\nBircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)\\n\\n(explaining that \\\"Title II prohibits discrimination by a public\\n\\nentity by reason of [plaintiff]'s disability\\\" during\\n\\ninvestigations and arrests); see also Gohier, 186 F.3d at 1221\\n\\n(stating that \\\"a broad rule categorically excluding arrests from\\n\\nthe scope of Title II . . . is not the law\\\"). Under this approach,\\n\\nexigent circumstances attendant to a police officer's decisions\\n\\nduring an ad hoc encounter simply weigh in the balance when\\n\\nevaluating the reasonableness of a prospective ADA accommodation.\\n\\nSee Haberle, 885 F.3d at 181 n.11; Bircoll, 480 F.3d at 1085-86.10\\n\\n\\n 10 The Ninth Circuit reached the same conclusion in Sheehan\\nv. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir.\\n2014). The Supreme Court granted certiorari in Sheehan in order\\nto resolve whether Title II of the ADA \\\"requires law enforcement\\nofficers to provide accommodations to an armed, violent, and\\nmentally ill suspect in the course of bringing the suspect into\\ncustody.\\\" City & County of San Francisco v. Sheehan, 135 S. Ct.\\n1765, 1772 (2015). The Court later concluded that certiorari on\\n\\n\\n - 30 -\\n\\fWhile no circuit has found Title II of the ADA wholly inapplicable\\n\\nto ad hoc police encounters, the differences in approach indicate\\n\\nto us that we should tread cautiously. For present purposes, it\\n\\nis sufficient for us to assume, favorably to Gray, that Title II\\n\\nof the ADA applies to ad hoc police encounters (such as the\\n\\nencounter here) and that exigent circumstances may shed light on\\n\\nthe reasonableness of an officer's actions.\\n\\n The second question asks whether a public entity can be\\n\\nvicariously liable for money damages under Title II of the ADA\\n\\nbased on the conduct of a line employee. This question arises\\n\\nbecause, in Gebser v. Lago Vista Independent School District, 524\\n\\nU.S. 274 (1998), the Supreme Court held that a school district\\n\\ncould not be held liable under Title IX of the Education Amendments\\n\\nof 1972 \\\"unless an official who at a minimum has authority to\\n\\naddress the alleged discrimination and to institute corrective\\n\\nmeasures on the [district]'s behalf has actual knowledge of\\n\\ndiscrimination.\\\" Id. at 290. Whether the rationale of Gebser\\n\\nshould be extended to insulate public entities from liability under\\n\\nTitle II of the ADA on a theory of respondeat superior is an open\\n\\nquestion. Compare, e.g., Duvall v. County of Kitsap, 260 F.3d\\n\\n1124, 1141 (9th Cir. 2001) (stating that \\\"public entity is liable\\n\\n\\n\\n\\nthis question had been improvidently granted. See id. at 1774.\\nThe Court took pains to note, though, that whether Title II\\n\\\"applies to arrests is an important question.\\\" Id. at 1773.\\n\\n\\n - 31 -\\n\\ffor the vicarious acts of its employees\\\" under Title II), with,\\n\\ne.g., Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348-\\n\\n49 (11th Cir. 2012) (finding no respondeat superior liability under\\n\\nsection 504 of Rehabilitation Act in light of Gebser).11 For\\n\\npresent purposes, it is sufficient for us to assume, favorably to\\n\\nGray, that the Town could be held vicariously liable under Title\\n\\nII for Cummings's actions.\\n\\n The third question asks whether a showing of deliberate\\n\\nindifference is enough to support recovery of money damages under\\n\\nTitle II. Since a plaintiff must show \\\"intentional discrimination\\\"\\n\\non the part of the public entity to be eligible for damages on a\\n\\nTitle II claim, Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126\\n\\n(1st Cir. 2003), some uncertainty exists as to whether \\\"deliberate\\n\\nindifference\\\" is the functional equivalent of \\\"intentional\\n\\ndiscrimination.\\\" Several of our sister circuits have held that a\\n\\nshowing of deliberate indifference may suffice to prove this\\n\\nelement. See, e.g., Haberle, 885 F.3d at 181; Duvall, 260 F.3d at\\n\\n1138. But the question is open in this circuit, and we have stated\\n\\nthat, \\\"under Title II, non-economic damages are only available\\n\\nwhen there is evidence 'of economic harm or animus toward the\\n\\n\\n\\n\\n 11 As a general matter, Title II of the ADA \\\"is to be\\ninterpreted consistently with\\\" section 504 of the Rehabilitation\\nAct, which prohibits disability discrimination by entities\\nreceiving federal financial assistance. Theriault v. Flynn, 162\\nF.3d 46, 48 n.3 (1st Cir. 1998).\\n\\n\\n - 32 -\\n\\fdisabled.'\\\" Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st\\n\\nCir. 2006) (quoting Nieves-Márquez, 353 F.3d at 126-27). This\\n\\ncase does not require us to parse whether our use of the word\\n\\n\\\"animus\\\" demands more than a showing of deliberate indifference,\\n\\ncf. S.H. ex. rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d\\n\\n248, 263 (3d Cir. 2013) (interpreting Nieves-Márquez as requiring\\n\\n\\\"a higher showing of intentional discrimination than deliberate\\n\\nindifference\\\"), particularly since the Town has not advanced such\\n\\nan argument. For present purposes, it is sufficient for us to\\n\\nassume, favorably to Gray, that deliberate indifference is the\\n\\nappropriate standard.\\n\\n Adjudicating Grays's ADA claim against the Town does not\\n\\nrequire us to run the gauntlet of these questions. After all, we\\n\\nhave admonished before — and today reaffirm — that \\\"courts should\\n\\nnot rush to decide unsettled legal issues that can easily be\\n\\navoided.\\\" United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir.\\n\\n2013). Consistent with this prudential principle, we decline to\\n\\nanswer any of the three questions identified above. No matter how\\n\\nthe loaf is sliced, Gray was obliged at a bare minimum to make out\\n\\na genuine issue of material fact as to Cummings's deliberate\\n\\nindifference to the risk of an ADA violation.\\n\\n In this context, such a showing requires proof that the\\n\\ndefendant knew that an ADA-protected right was likely to be\\n\\nabridged, yet neglected to take available preventative action\\n\\n\\n - 33 -\\n\\fnotwithstanding such knowledge. See Haberle, 885 F.3d at 181;\\n\\nDuvall, 260 F.3d at 1139-40. In other words, to hold the Town\\n\\nvicariously liable under Title II based on Cummings's deliberate\\n\\nindifference, Gray would have to show that Cummings knew that Gray\\n\\nhad a disability that required him to act differently than he would\\n\\notherwise have acted, yet failed to adjust his behavior\\n\\naccordingly. See, e.g., Crane v. Lifemark Hosps., Inc., 898 F.3d\\n\\n1130, 1136 (11th Cir. 2018); Duvall, 260 F.3d at 1140. Thus, to\\n\\nprevail on her version of the \\\"effects\\\" theory, Gray would at least\\n\\nhave to show that Cummings knew that her failure to follow his\\n\\norders was a symptom of her mental illness rather than deliberate\\n\\ndisobedience (warranting criminal charges). Similarly, to prevail\\n\\non her version of the \\\"accommodation\\\" theory, Gray would at least\\n\\nhave to show that Cummings knew that there was a reasonable\\n\\naccommodation, which he was required to provide. Gray has not\\n\\nmade either such showing.\\n\\n To be sure, it is undisputed that Cummings knew that\\n\\nGray was a section 12 patient and, thus, had a disability\\n\\n(specifically, that she suffered from an unspecified mental\\n\\nillness). See Mass. Gen. Laws ch. 123, § 12. But Gray has not\\n\\nshown that Cummings had any particularized knowledge about the\\n\\nnature or degree of Gray's disability. As we have explained, see\\n\\nsupra Part II.A, the fact that Gray was a section 12 patient served\\n\\nonly to put Cummings on notice that she had been deemed a danger\\n\\n\\n - 34 -\\n\\fto herself or to others. There is insufficient evidence to suggest\\n\\nthat Cummings knew either that Gray suffered from bipolar disorder\\n\\nor that she was experiencing a manic episode. Without such\\n\\nparticularized knowledge, Cummings had no way of gauging whether\\n\\nthe conduct that appeared unlawful to him was likely to be a\\n\\nmanifestation of the symptoms of Gray's mental illness. So, too,\\n\\nwithout such particularized knowledge, Cummings had no way of\\n\\ngauging what specific accommodation, if any, might have been\\n\\nreasonable under the circumstances.\\n\\n Of course, Gray has adduced evidence that national\\n\\npolice standards provide protocols for dealing with individuals\\n\\nsuffering from any type of mental illness. Critically, though,\\n\\nGray has not adduced any evidence showing that Cummings knew of\\n\\nthe existence of such standards.12 Consequently, Cummings had no\\n\\nway of knowing that an ADA-protected right was likely to be\\n\\njeopardized by his actions.\\n\\n\\n\\n\\n 12For the sake of completeness, we again note that the Town\\nhas a policy, which states that Tasers should not be used against\\n\\\"[t]hose known to be suffering from severe mental illness.\\\" Based\\non this policy, it might be argued that refraining from using a\\nTaser against Gray would have been a reasonable accommodation for\\nher disability. It might also be argued that, in tasing Gray in\\ncontravention of the policy, Cummings exhibited deliberate\\nindifference. The rub, though, is that Gray has not advanced any\\nsuch argument either below or in her appellate briefing. \\\"In the\\nabsence of extraordinary circumstances, none of which are apparent\\nhere, we have regularly declined to consider points which were not\\nseasonably advanced below.\\\" Clauson v. Smith, 823 F.2d 660, 666\\n(1st Cir. 1987).\\n\\n\\n - 35 -\\n\\f Nor were Cummings's actions so plainly antithetic to the\\n\\nADA as to obviate the knowledge requirement. See Haberle, 885\\n\\nF.3d at 182. The record makes manifest that Cummings tried to\\n\\ntalk to Gray before physically engaging with her, telling her\\n\\nrepeatedly that she needed to return to the hospital. He followed\\n\\nher from a distance and did not make physical contact with her\\n\\nuntil she reversed direction and moved toward him. And in the\\n\\nensuing encounter, he warned her that she would be tased if she\\n\\ndid not put her hands behind her back and gave her several chances\\n\\nto comply before using the Taser (in the least intrusive mode\\n\\navailable).\\n\\n Gray has also offered evidence that in failing to wait\\n\\nfor backup or to call an ambulance prior to approaching her,\\n\\nCummings fell short of nationally recognized police standards.\\n\\nBut as we have said, she has not shown that Cummings knew of such\\n\\nstandards; and in all events, \\\"falling below national standards\\n\\ndoes not, in and of itself, make the risk of an ADA violation\\\" so\\n\\nobvious as to eliminate the knowledge requirement. Id.\\n\\n By the same token, Gray has not offered evidence\\n\\nsufficient to sustain a claim of direct liability against the Town.\\n\\nTo make out such a claim, Gray could show that the Town's \\\"existing\\n\\npolicies caused a failure to 'adequately respond to a pattern of\\n\\npast occurrences of injuries like [hers].'\\\" Id. at 181 (quoting\\n\\nBeers-Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001)). Or\\n\\n\\n - 36 -\\n\\fshe could show \\\"that the risk of . . . cognizable harm was 'so\\n\\ngreat and so obvious'\\\" as to override the requirement of\\n\\ndemonstrating a pattern. Id. (quoting Beers-Capitol, 256 F.3d at\\n\\n136-37). Gray has not made either showing: she has proffered no\\n\\nevidence of a pattern, nor has she shown an obvious risk of harm.\\n\\nAt most, she has put forth evidence that the Town's policies failed\\n\\nto comply with national standards. But such a failure — without\\n\\nmore — does not render the risk of harm so great and obvious as to\\n\\nexcuse a failure to satisfy the pattern requirement. See id. at\\n\\n182.\\n\\n To this point, we have explained why Gray's claim for\\n\\nmoney damages is impuissant. But Gray's amended complaint also\\n\\nprays for injunctive relief. This form of redress, too, is beyond\\n\\nGray's reach. Past injury, in and of itself, \\\"is an insufficient\\n\\npredicate for equitable relief.\\\" Am. Postal Workers Union v.\\n\\nFrank, 968 F.2d 1373, 1376 (1st Cir. 1992). To have standing to\\n\\npursue injunctive relief, a plaintiff must \\\"establish a real and\\n\\nimmediate threat\\\" resulting in \\\"a sufficient likelihood that [s]he\\n\\nwill again be wronged in a similar way.\\\" Id. (quoting Los Angeles\\n\\nv. Lyons, 461 U.S. 95, 109, 111 (1983)); see Updike v. Multnomah\\n\\nCounty, 870 F.3d 939, 948 (9th Cir. 2017), cert. denied sub nom.\\n\\nMultnomah County v. Updike, 139 S. Ct. 55 (2018) (finding that ADA\\n\\nplaintiff \\\"lack[ed] standing to pursue his claims for injunctive\\n\\nrelief\\\"); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st\\n\\n\\n - 37 -\\n\\fCir. 2003) (requiring \\\"real and immediate threat of ongoing harm\\\"\\n\\nfor injunctive relief in ADA case). Gray cannot clear this hurdle.\\n\\nWhen all is said and done, it is not enough for Gray to show that\\n\\nbecause she has bipolar disorder, she is likely to encounter the\\n\\npolice again. She must show that she is likely to be tased once\\n\\nmore, see Lyons, 461 U.S. at 105-06, and she has not managed any\\n\\nsuch showing.\\n\\n Because there is no remedy available to Gray under Title\\n\\nII of the ADA, it follows that the district court did not err in\\n\\nentering summary judgment for the Town on Gray's ADA claim. See\\n\\nCarmona-Rivera, 464 F.3d at 18 (affirming summary judgment for\\n\\ndefendants where no remedy was available to plaintiff on ADA\\n\\nclaim).\\n\\nIII. CONCLUSION\\n\\n We need go no further. We add only that this is a hard\\n\\ncase — a case that is made all the more difficult because of two\\n\\ncompeting concerns: our concern for the rights of the disabled\\n\\nand our concern that the police not be unduly hampered in the\\n\\nperformance of their important duties. In the end, though, we\\n\\nthink that the protections provided by Title II of the ADA can be\\n\\nharmonized with the doctrines of excessive force and qualified\\n\\nimmunity, as explicated by the Supreme Court, to achieve a result\\n\\nthat gives each of these competing concerns their due. We think\\n\\nthat our ruling today — which establishes in this circuit that a\\n\\n\\n - 38 -\\n\\fjury could supportably find the use of a Taser to quell a\\n\\nnonviolent, mentally ill person who is resisting arrest to be\\n\\nexcessive force — satisfies this exacting standard.\\n\\n\\n\\nAffirmed.\\n\\n\\n\\n\\n - 39 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370544/\", \"author_raw\": \"Judge David L. Bazelon Center for Mental Health Law, amici curiae\"}]}"},"judge1":{"kind":"string","value":"KAYATTA"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"SELYA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593291/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Judith GRAY, Plaintiff, Appellant, v. Thomas A. CUMMINGS ; Town of Athol, Massachusetts, Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1303\n\n JUDITH GRAY,\n\n Plaintiff, Appellant,\n\n v.\n\n THOMAS A. CUMMINGS;\n TOWN OF ATHOL, MASSACHUSETTS,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Timothy S. Hillman, U.S. District Judge]\n [Hon. David H. Hennessy, U.S. Magistrate Judge]\n\n\n Before\n\n Kayatta, Circuit Judge,\n Souter, Associate Justice,\n and Selya, Circuit Judge.\n\n\n Matthew R. Segal, with whom Ruth A. Bourquin, American Civil\nLiberties Union Foundation of Massachusetts, Inc., Claudia Center,\nAmerican Civil Liberties Union Foundation, Richard L. Neumeier,\nand Morrison Mahoney LLP, were on brief, for appellant.\n David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer\nCutler Pickering Hale and Dorr LLP, Aaron M. Panner, Kellogg,\nHansen, Todd, Figel & Frederick, P.L.L.C., Nathalie F. P. Gilfoyle,\nDeanne M. Ottaviano, and Jennifer Mathis on brief for American\nPsychiatric Association, American Psychological Association, and\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the Supreme\nCourt of the United States, sitting by designation.\n\fJudge David L. Bazelon Center for Mental Health Law, amici curiae\n(in support of neither party).\n Thomas R. Donohue, with whom Deidre Brennan Regan, Leonard H.\nKesten, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief,\nfor appellees.\n Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello,\nand Petrini & Associates, P.C. on brief for International Municipal\nLawyers Association and Massachusetts Chiefs of Police\nAssociation, Inc., amici curiae (in support of affirmance).\n Pamela B. Petersen on brief for Axon Enterprise, Inc., amicus\ncuriae (in support of affirmance).\n\n\n February 22, 2019\n\f SELYA, Circuit Judge. This appeal arises at the\n\nintersection of constitutional law and disability-rights law. It\n\ntouches upon a plethora of important issues. Some of these issues\n\nrelate to the appropriateness of a police officer's use of a Taser\n\nin attempting to regain custody of a mentally ill person who, after\n\nbeing involuntarily committed, absconded from a hospital. Others\n\nrelate to the applicability vel non of Title II of the Americans\n\nwith Disabilities Act (ADA), 42 U.S.C. §§ 12131-65, to ad hoc\n\npolice encounters. In the end, we decide the case on the narrowest\n\navailable grounds and affirm the entry of summary judgment for the\n\ndefendants.\n\nI. BACKGROUND\n\n This case has its genesis in an on-the-street encounter\n\nbetween plaintiff-appellant Judith Gray (who suffers from bipolar\n\ndisorder) and Thomas Cummings, a police officer in Athol,\n\nMassachusetts (the Town). Because the case was decided below at\n\nthe summary judgment stage, we must take the facts in the light\n\nmost hospitable to the non-moving party (here, Gray), consistent\n\nwith record support. See Houlton Citizens' Coal. v. Town of\n\nHoulton, 175 F.3d 178, 184 (1st Cir. 1999). We caution, though,\n\nthat we are not obliged to credit \"conclusory allegations,\n\nimprobable inferences, acrimonious invective, or rank\n\nspeculation.\" Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).\n\n\n\n\n - 3 -\n\f Here, the raw facts are largely undisputed. In her\n\ndeposition, Gray testified that she \"really [didn't] know what\n\nhappened\" during the incident because she \"was in a full-blown\n\nmanic phase.\" She added that she \"wouldn't know Officer Cummings\n\nif [she] fell over him\" and that she had reviewed the police report\n\nprepared by Cummings and did not know whether or not it accurately\n\ndescribed the events that had transpired. Nor did she present any\n\nother evidence contradicting Cummings's version of the relevant\n\nevents. Although we recognize that juries have some leeway to\n\n\"reject uncontradicted, unimpeached testimony when it is\n\nimprobable, inherently contradictory, riddled with omissions, or\n\ndelivered in a manner giving rise to doubts,\" Quintana-Ruiz v.\n\nHyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002), that\n\nprinciple has no application here. Accordingly, we elicit many of\n\nthe facts from Cummings's account. See Harriman v. Hancock County,\n\n627 F.3d 22, 34 (1st Cir. 2010) (finding no material factual\n\ndispute when plaintiff \"had no memory of being beaten by anyone at\n\nanytime relevant to this case\"); see also Wertish v. Krueger, 433\n\nF.3d 1062, 1065 (8th Cir. 2006) (deeming police officer's version\n\nof events \"unrefuted\" when plaintiff testified that he had very\n\nlittle memory of relevant events). Even so, we draw all reasonable\n\ninferences from those facts in Gray's favor.\n\n On May 2, 2013, Gray — who was then fifty-seven years\n\nold — experienced a manic episode and called 911. Athol police\n\n\n - 4 -\n\fofficers arrived at Gray's home and transported her to Athol\n\nMemorial Hospital. She was admitted to the hospital at around\n\n4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, § 12 (authorizing\n\ninvoluntary \"[e]mergency restraint and hospitalization of persons\n\nposing risk of serious harm by reason of mental illness\").\n\nApproximately six hours later, Gray absconded from the hospital on\n\nfoot. Hospital staff called the Athol Police Department, asking\n\nthat Gray — \"a section 12 patient\" — be \"picked up and brought\n\nback.\"\n\n Cummings responded to the call and quickly located Gray,\n\nwalking barefoot along the sidewalk less than a quarter-mile from\n\nthe hospital. Cummings got out of his police cruiser. Gray swore\n\nat him, and Cummings told her that she \"ha[d] to go back to the\n\nhospital.\" Gray again used profanity, declared that she was not\n\ngoing back, and continued to walk away. In response, Cummings\n\nradioed for backup and followed Gray on foot. He repeatedly\n\nimplored Gray to return to the hospital, but his importunings were\n\ngreeted only by more profanity.\n\n Initially, Cummings followed Gray at a distance of\n\nroughly one hundred feet. Within twenty-five to thirty seconds,\n\nhe closed to within five feet. At that point, Gray stopped, turned\n\naround, \"clenched her fists, clenched her teeth, flexed her body\n\nand stared at [Cummings] as if she was looking right through\n\n[him].\" She again swore at Cummings and started walking toward\n\n\n - 5 -\n\fhim. Cummings grabbed Gray's shirt but he could feel Gray moving\n\nher body forward, so he \"took her to the ground.\" It is undisputed\n\nthat Cummings had a distinct height and weight advantage: he was\n\nsix feet, three inches tall and weighed 215 pounds, whereas Gray\n\nwas five feet, ten inches tall and weighed 140 pounds.\n\n Cummings testified that once on the ground, he\n\nrepeatedly instructed Gray to place her hands behind her back.\n\nShe did not comply. Instead, she \"tucked her arms underneath her\n\nchest and flex[ed] tightly,\" swearing all the while. Cummings\n\nwarned Gray that she was \"going to get ta[s]ed\" if she did not\n\nplace her hands behind her back.1 Gray did not heed this warning\n\nbut, rather, swore at Cummings again and told him to \"do it.\"\n\nCummings made \"one last final demand [for Gray] to stop resisting\"\n\nand when \"Gray refused to listen,\" he removed the cartridge from\n\nhis Taser, placed it in drive-stun mode,2 and tased Gray's back\n\nfor four to six seconds. Gray then allowed him to handcuff her.\n\n\n\n\n 1\n Gray testified she was told that she would be tased if she\nstood up. She also testified that at some point she was ordered\nto get to her knees, but that, due to prior injuries, she was\nunable to obey this order. Given Gray's repeated statements that\nshe could not recall the details of the encounter and that she\ncould not identify any factual inaccuracies in Cummings's police\nreport, we find these assertions insufficient to refute Cummings's\naccount. See Wertish, 433 F.3d at 1065.\n 2 Drive-stun mode is the least intrusive setting for a Taser:\n\nit delivers only a localized impact to the target. This contrasts\nwith probe-deployment mode, which disrupts the target's entire\nnervous system.\n\n\n - 6 -\n\f Cummings helped Gray to her feet and called an ambulance,\n\nwhich transported Gray to the hospital. According to Gray, she\n\nfelt \"pain all over\" at the moment she was tased, but she \"must\n\nhave passed out because [she] woke up in Emergency.\" Charges were\n\nsubsequently filed against Gray for assault on a police officer,\n\nresisting arrest, disturbing the peace, and disorderly conduct,\n\nbut were eventually dropped.\n\n In due season, Gray sued Cummings and the Town in the\n\nfederal district court. She invoked federal question\n\njurisdiction, see 28 U.S.C. § 1331, and asserted causes of action\n\nunder 42 U.S.C. § 1983 and Title II of the ADA, along with\n\nsupplemental state-law claims for assault and battery, malicious\n\nprosecution, and violations of the Massachusetts Civil Rights Act\n\n(MCRA), Mass. Gen. Laws ch. 12, §§ 11H-11I. After the completion\n\nof pretrial discovery, the defendants moved for summary judgment.\n\nSee Fed. R. Civ. P. 56(a). The district court referred the opposed\n\nmotion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.\n\nR. Civ. P. 72(b). Following a hearing, the magistrate judge issued\n\na report and recommendation, suggesting that the motion be granted.\n\nSpecifically, the magistrate judge found no violation of the Fourth\n\nAmendment under section 1983 on the part of either Cummings or the\n\nTown and no viable state-law claims. As to Cummings, the\n\nmagistrate judge added that, in any event, he was entitled to\n\nqualified immunity. The magistrate judge further concluded that\n\n\n - 7 -\n\fthere had been no abridgement of the ADA because, regardless of\n\nGray's disability, Cummings was entitled to employ an \"appropriate\n\nlevel of force in response to an ongoing threat.\"\n\n Gray objected to the magistrate judge's report and\n\nrecommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.\n\n72(b). On de novo review, see Mercy Hosp., Inc. v. Mass. Nurses\n\nAss'n, 429 F.3d 338, 343 (1st Cir. 2005), the district court\n\nentered a two-sentence text order adopting the magistrate judge's\n\nreport and recommendation in substantial part. Because the court\n\nagreed that Cummings was entitled to qualified immunity, it\n\ndeclined to express any opinion on the magistrate judge's\n\ndetermination that \"Cummings employed reasonable force under all\n\nof the circumstances.\"\n\n This timely appeal followed. In addition to the parties'\n\nbriefs and oral argument, we have had the benefit of able briefing\n\nby several amici.\n\nII. ANALYSIS\n\n We review an order granting summary judgment de novo.\n\nSee Houlten Citizens' Coal., 175 F.3d at 184. \"We will affirm\n\nonly if the record reveals 'that there is no genuine dispute as to\n\nany material fact and the movant is entitled to judgment as a\n\nmatter of law.'\" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.\n\n2011) (quoting Fed. R. Civ. P. 56(a)). Against this backdrop, we\n\nproceed to Gray's claims.\n\n\n - 8 -\n\f A. The Section 1983 Claims.\n\n Section 1983 supplies a private right of action against\n\na person who, under color of state law, deprives another of \"any\n\nrights, privileges, or immunities secured by the Constitution and\n\n[federal] laws.\" 42 U.S.C. § 1983. To maintain a cause of action\n\nunder section 1983, \"the plaintiff must show a deprivation of a\n\nfederally secured right.\" Harrington v. City of Nashua, 610 F.3d\n\n24, 28 (1st Cir. 2010). Gray has advanced separate section 1983\n\nclaims against Cummings and the Town. We address these claims\n\nsequentially.\n\n 1. Cummings. Gray's section 1983 claim against Cummings\n\nis premised on the notion that Cummings used excessive force in\n\neffecting her arrest and, thus, violated her Fourth Amendment\n\nrights. To prevail on such a claim, \"a plaintiff must show that\n\nthe defendant employed force that was unreasonable under all the\n\ncircumstances.\" Morelli v. Webster, 552 F.3d 12, 23 (1st Cir.\n\n2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The\n\ndegree of force to be used in any given situation is most often a\n\njudgment call, which sometimes must be made in a split second by\n\na police officer confronted with rapidly evolving circumstances.\n\nDetermining whether a particular use of force is reasonable\n\nrequires consideration of the totality of the circumstances. See\n\nGraham, 490 U.S. at 396. This consideration entails the weighing\n\nof a myriad of factors such as \"the severity of the crime at issue,\n\n\n - 9 -\n\fwhether the suspect pose[d] an immediate threat to the safety of\n\nthe officers or others, and whether [the suspect was] actively\n\nresisting arrest or attempting to evade arrest by flight.\" Id.\n\n Our starting point is the question of whether a\n\nreasonable jury could find that Cummings violated Gray's Fourth\n\nAmendment rights through the use of excessive force. The\n\nmagistrate judge answered this question in the negative,\n\nconcluding that, as a matter of law, \"the single deployment of a\n\ntaser in drive stun mode\" in these particular circumstances was\n\nreasonable. Viewing the record most hospitably to Gray and drawing\n\nall reasonable inferences to her behoof, we think that a reasonable\n\njury could find that the force employed by Cummings violated the\n\nFourth Amendment. We explain briefly.\n\n The Town's policies describe a Taser in drive-stun mode\n\nas a \"pain compliance tool.\"3 Thus, the question reduces to whether\n\nthe circumstances surrounding the confrontation between Gray and\n\nCummings, interpreted in the light most favorable to Gray,\n\njustified Cummings's use of such a tool.\n\n The magistrate judge analyzed this question in\n\naccordance with the Graham factors. In his view, the first factor\n\n— \"the severity of the crime at issue,\" id. — favored Cummings\n\n\n 3 This description is consistent with the descriptions found\nin the case law. See, e.g., Crowell v. Kirkpatrick, 400 F. App'x\n592, 595 (2d Cir. 2010) (explaining that drive-stun mode \"typically\ncauses temporary, if significant, pain and no permanent injury\").\n\n\n - 10 -\n\fbecause \"Ms. Gray assaulted [him].\" At summary judgment, though,\n\nthis assessment is insupportable: it fails to view the facts in\n\nthe light most favorable to Gray.\n\n In this regard, we think it important that Cummings was\n\nnot called to the scene to investigate a crime; he was there to\n\nreturn a person suffering from mental illness to the hospital.\n\nWhen the subject of a seizure has not committed any crime, the\n\nfirst Graham factor ordinarily cuts in the subject's favor. See\n\nEstate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810\n\nF.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not submit to\n\nCummings's orders. Withal, this failure to obey was at most a\n\nminor crime, not one that would tip the first Graham factor in\n\nCummings's favor. See id. at 899-900.\n\n Nor does the alleged assault tilt the scales. In\n\nCummings's view, the assault occurred when, after Gray walked\n\ntoward him, he grabbed her shirt and she \"continued pushing against\n\n[his] arm.\" In the circumstances of this case, we think that a\n\nreasonable jury could find that the facts did not support the\n\ncharacterization of Gray's actions as an \"assault.\"\n\n The same kind of defect mars the magistrate judge's\n\ndetermination that the second Graham factor — \"whether the suspect\n\nposes an immediate threat to the safety of the officers or others,\"\n\n490 U.S. at 396 — favored Cummings. It is true that Gray was a\n\nsection 12 patient, that is, an individual who has been\n\n\n - 11 -\n\finvoluntarily committed to a hospital pursuant to Mass. Gen. Laws\n\nch. 123, § 12, based on a determination by a qualified medical\n\nprofessional (or, in emergency situations, a police officer) that\n\n\"failure to hospitalize [her] would create a likelihood of serious\n\nharm by reason of mental illness.\" Id. § 12(a). It is also true\n\nthat Cummings knew as much. Although a jury could supportably\n\nfind on these facts that Cummings reasonably believed that Gray\n\nposed a danger to him, it could supportably find instead that Gray\n\n— who was shuffling down the sidewalk barefoot and unarmed — only\n\nposed a danger to herself (especially given Cummings's distinct\n\nheight and weight advantage). So, too, a jury could supportably\n\nfind that, at the time of the tasing, Gray had been subdued to a\n\npoint at which she no longer posed a threat.\n\n The magistrate judge concluded that the final Graham\n\nfactor — whether Gray was \"actively resisting arrest,\" 490 U.S. at\n\n396 — favored Cummings. This conclusion seems unimpugnable given\n\nCummings's testimony that he asked Gray several times to put her\n\nhands behind her back, but that she would not do so.\n\n The short of it is that the Graham factors point in\n\nconflicting directions. Seen through the prism of the totality of\n\nthe circumstances, the evidence is subject to interpretation and\n\ncan support plausible though inconsistent inferences. Drawing\n\nthose inferences beneficially to Gray and aware that Cummings not\n\nonly had her down on the ground but also outweighed her by some\n\n\n - 12 -\n\fseventy-five pounds, a reasonable jury could find that Gray had\n\ncommitted no crime and that she posed no threat to Cummings when\n\nhe tased her. When all is said and done, we think that Gray has\n\npresented sufficient evidence to make out a jury question as to\n\nwhether Cummings used excessive force. See, e.g., Morelli, 552\n\nF.3d at 23 (finding triable excessive force claim when officer\n\nslammed plaintiff, who \"at worst, was suspected of being a petty\n\nthief,\" against wall); Alexis v. McDonald's Rests. of Mass., Inc.,\n\n67 F.3d 341, 353 (1st Cir. 1995) (concluding that jury could find\n\nexcessive force when officer seized and dragged plaintiff to\n\neffectuate arrest for crime of trespassing in public restaurant);\n\nsee also Estate of Armstrong, 810 F.3d at 906 (finding excessive\n\nforce when officer tased \"mentally ill man being seized for his\n\nown protection, [who] was seated on the ground, was hugging a post\n\nto ensure his immobility, . . . and had failed to submit to a\n\nlawful seizure for only 30 seconds\").\n\n This conclusion does not end our inquiry. Cummings has\n\ninvoked the defense of qualified immunity. Qualified immunity is\n\na doctrine aimed at providing government officials (including\n\npolice officers) a modicum of protection from civil damages\n\nliability for actions taken under color of state law. See Harlow\n\nv. Fitzgerald, 457 U.S. 800, 818 (1982); McKenney v. Mangino, 873\n\nF.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018).\n\nThis protection attaches \"to all but the plainly incompetent or\n\n\n - 13 -\n\fthose who knowingly violate the law.\" Malley v. Briggs, 475 U.S.\n\n335, 341 (1986). Thus, a government official may invoke the\n\ndefense of qualified immunity when his actions, though causing\n\ninjury, did \"not violate clearly established statutory or\n\nconstitutional rights of which a reasonable person would have\n\nknown.\" Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)\n\n(quoting Harlow, 457 U.S. at 818).\n\n The qualified immunity analysis has two facets: \"[t]he\n\ncourt must determine whether the defendant violated the\n\nplaintiff's constitutional rights\" and then must determine\n\n\"whether the allegedly abridged right was 'clearly established' at\n\nthe time of the defendant's claimed misconduct.\" Id. at 155\n\n(quoting McKenney, 873 F.3d at 81). In this instance, we already\n\nhave decided that a jury could find that Cummings violated Gray's\n\nFourth Amendment rights. We must now determine whether the alleged\n\nright was clearly established at the time of Cummings's violation.\n\nSee id. Specifically, we must ask whether, given the circumstances\n\nat hand, Gray's right to be free from the degree of force that\n\nCummings used — particularly, the Taser — was clearly established.\n\n This question, too, has two facets. First, the plaintiff\n\nmust \"identify either 'controlling authority' or a 'consensus of\n\ncases of persuasive authority' sufficient to send a clear signal\n\nto a reasonable official that certain conduct falls short of the\n\nconstitutional norm.\" Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir.\n\n\n - 14 -\n\f2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Second,\n\nthe plaintiff must demonstrate that \"an objectively reasonable\n\nofficial in the defendant's position would have known that his\n\nconduct violated that rule of law.\" Id. This latter step is\n\ndesigned to achieve a prophylactic purpose: it affords \"some\n\nbreathing room for a police officer even if he has made a mistake\n\n(albeit a reasonable one) about the lawfulness of his conduct.\"\n\nConlogue, 906 F.3d at 155. Taken together, these steps normally\n\nrequire that, to defeat a police officer's qualified immunity\n\ndefense, a plaintiff must \"identify a case where an officer acting\n\nunder similar circumstances was held to have violated the Fourth\n\nAmendment.\" City of Escondido v. Emmons, 139 S. Ct. 500, 504\n\n(2019) (per curiam) (quoting District of Columbia v. Wesby, 138 S.\n\nCt. 577, 590 (2018)); see Anderson v. Creighton, 483 U.S. 635,\n\n639-40 (1987). Although such a case need not arise on identical\n\nfacts, it must be sufficiently analogous to make pellucid to an\n\nobjectively reasonable officer the unlawfulness of his actions.4\n\nSee City of Escondido, 139 S. Ct. at 504; Ashcroft v. al-Kidd, 563\n\nU.S. 731, 741 (2011).\n\n\n\n\n 4 Sometimes, however, this requirement is relaxed. In\ncircumstances in which a violation of rights is apparent, a\nplaintiff may thwart a qualified immunity defense simply by\ndemonstrating that \"the unlawfulness of the officer's conduct is\nsufficiently clear even though existing precedent does not address\nsimilar circumstances.\" City of Escondido, 139 S. Ct. at 504\n(quoting Wesby, 138 S. Ct. at 590). This is not such a case.\n\n\n - 15 -\n\f The district court determined that \"the right not to be\n\ntased while offering non-violent stationary, resistance to a\n\nlawful seizure was not clearly established at the time of the\n\nconfrontation between Ms. Gray and Officer Cummings\" and,\n\ntherefore, ruled that Cummings was entitled to qualified immunity.\n\nWe examine the foundation on which this ruling rests.\n\n We begin with Estate of Armstrong, in which the Fourth\n\nCircuit conducted a similar qualified immunity analysis.\n\nSpecifically, the court considered whether the \"right not to be\n\nsubjected to tasing while offering stationary and non-violent\n\nresistance to a lawful seizure\" was clearly established. 810 F.3d\n\nat 907. Armstrong, who suffered from bipolar disorder and paranoid\n\nschizophrenia, had absconded from the hospital to which he had\n\nbeen committed. See id. at 896. The police were called and\n\nlocated Armstrong near the hospital's main entrance. See id.\n\nThree police officers approached Armstrong, who responded by\n\n\"wrapping himself around a four-by-four post that was supporting\n\na nearby stop sign.\" Id. The officers attempted to pry\n\nArmstrong's arms and legs loose but were unsuccessful. See id.\n\nOne of the officers then warned Armstrong that he would be tased\n\nif he did not let go of the post. See id. at 897. Armstrong did\n\nnot comply, and the officer proceeded to tase him five times in\n\ndrive-stun mode, over a span of approximately two minutes. See\n\nid. Even though Armstrong continued resisting, he was pried loose\n\n\n - 16 -\n\ffrom the post. See id. A struggle ensued, resulting in\n\nArmstrong's demise. See id. at 897-98.\n\n Although the court found that a jury could find the\n\nofficers had used excessive force, see id. at 906, it nonetheless\n\naffirmed summary judgment in favor of the defendants. The court\n\nreasoned that even though its finding that the officers had\n\nviolated Armstrong's Fourth Amendment rights was supported by\n\nprecedent, the law \"was not so settled [as of April 2011] such\n\nthat 'every reasonable official would have understood that' tasing\n\nArmstrong was unconstitutional\" under the circumstances. Id. at\n\n908 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per\n\ncuriam)).5\n\n The Fourth Circuit's conclusion in Estate of Armstrong\n\n— that the use of a Taser in drive-stun mode against a noncompliant\n\nand resisting individual was not clearly unconstitutional as of\n\n2011 — is not an outlier. Prior to Cummings's encounter with Gray,\n\nseveral other courts of appeals had found the use of a Taser\n\nreasonable in situations involving subjects who acted with a level\n\nof resistance analogous to that displayed by Gray. See, e.g.,\n\nHagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 507 (6th\n\nCir. 2012) (granting qualified immunity for use of Taser in drive-\n\n\n\n\n 5\n We note that Estate of Armstrong was decided in 2016 and,\nthus, Cummings did not have the benefit of the Fourth Circuit's\ndecision at the time of the incident sub judice.\n\n\n - 17 -\n\fstun mode in 2007 when plaintiff \"refused to be handcuffed,\" \"lay\n\ndown on the pavement and locked his arms tightly under his body,\n\nkicking his feet and continuing to scream\"); Draper v. Reynolds,\n\n369 F.3d 1270, 1278 (11th Cir. 2004) (finding single use of Taser\n\nin 2001 reasonable when plaintiff \"used profanity, moved around\n\nand paced in agitation,\" and \"repeatedly refused to comply with\n\n[the officer]'s verbal commands\" during traffic stop). Thus, an\n\nobjectively reasonable officer in Cummings's place and stead could\n\nreasonably have believed, in 2013, that the use of a Taser was\n\ngenerally permissible when a subject refuses to be handcuffed.\n\n Even so, the level of force that is constitutionally\n\npermissible in dealing with a mentally ill person \"differs both in\n\ndegree and in kind from the use of force that would be justified\n\nagainst a person who has committed a crime or who poses a threat\n\nto the community.\" Bryan v. MacPherson, 630 F.3d 805, 829 (9th\n\nCir. 2010). Consequently, a subject's mental illness is a factor\n\nthat a police officer must take into account in determining what\n\ndegree of force, if any, is appropriate. See Estate of Armstrong,\n\n810 F.3d at 900; Champion v. Outlook Nashville, Inc., 380 F.3d\n\n893, 904 (6th Cir. 2004). Here, however, the only thing that\n\nCummings knew about Gray's mental health was that she had been\n\ninvoluntarily committed under section 12; he did not know whether\n\nGray had been deemed a danger to others or only to herself. Given\n\nthe skimpiness of this information, we think that an objectively\n\n\n - 18 -\n\freasonable police officer, standing in Cummings's shoes, would\n\nhave had to be prepared for the worst.\n\n Based on the body of available case law, we hold that an\n\nobjectively reasonable police officer in May of 2013 could have\n\nconcluded that a single use of the Taser in drive-stun mode to\n\nquell a nonviolent, mentally ill individual who was resisting\n\narrest, did not violate the Fourth Amendment. Even if such a\n\nconclusion was constitutionally mistaken — as a jury could find on\n\nthe facts of this case — Cummings is shielded by qualified\n\nimmunity.\n\n Gray demurs. She identifies two of our precedents and\n\nposits that — whether viewed singly or in combination — they evince\n\nthe clearly established nature of her right to be free from tasing.\n\nBoth precedents are inapposite.\n\n The case on which Gray relies most heavily is Parker v.\n\nGerrish, 547 F.3d 1 (1st Cir. 2008). There, the plaintiff had\n\nbeen stopped on suspicion of driving while intoxicated. After the\n\nplaintiff failed several sobriety tests, the officer tried to\n\narrest him. See id. at 3-4. When the plaintiff resisted, the\n\nofficer drew his Taser and ordered the plaintiff to turn around\n\nand place his hands behind his back. See id. at 4. The plaintiff\n\ncomplied but clasped his right wrist with his left hand. See id.\n\nAnother officer approached and cuffed the plaintiff's left wrist.\n\nSee id. There was substantial dispute about what happened next,\n\n\n - 19 -\n\fbut according to the plaintiff's account (to which the court was\n\nrequired to defer in the posture of the case), he released his\n\nright wrist, yet was tased anyway. See id. at 4-5. On these\n\nfacts, we held that the police officer could be found to have\n\nviolated the Fourth Amendment by tasing an unarmed suspect who, in\n\nthe course of an arrest, \"present[ed] no significant 'active\n\nresistance' or threat\"6 at the time of the tasing. Id. at 10-11.\n\n The case at hand is a horse of a quite different hue.\n\nThere is no indication here that Gray, despite ample opportunity\n\nto do so, ever complied with Cummings's command to put her hands\n\nbehind her back. Even when Cummings warned her that she would be\n\ntased, she did not comply but, rather, continued cursing and told\n\nhim to \"do it.\"\n\n The second case upon which Gray relies is Ciolino v.\n\nGikas, 861 F.3d 296 (1st Cir. 2017), which involved events\n\noccurring in 2013. There, a police officer grabbed the plaintiff\n\nin a crowded street and forced him to the ground without giving\n\nhim any warning. See id. at 299-300. We held that the jury could\n\nfind that although the plaintiff had \"disobeyed a police order,\"\n\nhe \"was not given a chance to submit peacefully to arrest before\n\nsignificant force was used to subdue him\" and, therefore, \"an\n\n\n\n\n 6 We had no occasion in Parker to mull the implications of a\nqualified immunity defense. There, the officer waived any such\ndefense. See 547 F.3d at 13.\n\n\n - 20 -\n\f'objectively reasonable police officer' would have taken a more\n\nmeasured approach.\" Id. at 304 (quoting Raiche v. Pietroski, 623\n\nF.3d 30, 39 (1st Cir. 2010)).\n\n Once again, the case at hand is readily distinguishable.\n\nCummings repeatedly told Gray that she needed to return to the\n\nhospital, and she adamantly refused to obey. What is more, he\n\nwarned her that he would use his Taser if she remained\n\nintransigent, yet she defied the warning. Thus — unlike the\n\nplaintiff in Ciolino — Gray was afforded an adequate opportunity\n\nto submit to Cummings's authority before she was tased.\n\n Gray cites a number of other cases in support of her\n\nargument that her resistance was \"passive\" rather than \"active\"\n\nand, thus, did not justify the use of the Taser. This argument is\n\ndeeply flawed. Labels such as \"passive\" and \"active\" are\n\ngeneralizations and cannot serve as substitutes for a careful\n\nanalysis of the facts of a particular case. In point of fact, the\n\nSupreme Court — in an excessive force case — recently cautioned\n\nagainst \"defin[ing] the clearly established right at a high level\n\nof generality.\" City of Escondido, 139 S. Ct. at 503. There, the\n\nCourt reversed a denial of qualified immunity sought by an officer\n\nwho had tackled a man after he had closed the door to a dwelling\n\ndespite being instructed not to do so and \"tried to brush past\"\n\nthe officer. Id. at 502. The Court criticized the Ninth Circuit\n\nfor relying on \"case law [that] involved police force against\n\n\n - 21 -\n\findividuals engaged in passive resistance\" without making any\n\n\"effort to explain how that case law prohibited [the officer]'s\n\nactions in this case.\" Id. at 503-04 (emphasis in original). And\n\nin all events, respectable authority suggests that refusing to be\n\nhandcuffed constitutes active resistance and may justify the use\n\nof a Taser. See Hagans, 695 F.3d at 509 (collecting cases).\n\n We add, moreover, that several of the cases cited by\n\nGray involve deployment of a Taser subsequent to an initial Taser\n\nshock. See, e.g., Meyers v. Baltimore County, 713 F.3d 723, 733-\n\n34 (4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 F.3d 856, 859-\n\n63 (7th Cir. 2010). Nothing of that sort happened here.7\n\n In the last analysis, Gray does not cite any case,\n\ndecided before her encounter with Cummings, that arose out of the\n\nuse of a Taser on facts fairly comparable to the facts at hand.\n\nIn the absence of either controlling authority or a consensus of\n\n\n\n\n 7 In furtherance of her argument that an objectively\nreasonable officer standing in Cummings's shoes would have known\nthat the degree of force used was unreasonable, Gray argues in her\nreply brief that the Town has a policy against tasing someone\n\"known to be suffering from severe mental illness.\" This argument\nis doubly waived: first, it was not advanced in the district\ncourt, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st\nCir. 1991) (\"It is hornbook law that theories not raised squarely\nin the district court cannot be surfaced for the first time on\nappeal.\"); and second, it was not advanced in Gray's opening brief\nin this court, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86\n(1st Cir. 1990) (\"[B]ecause the argument . . . surfac[ed] only in\n[appellant's] reply brief, it has been waived.\").\n\n\n - 22 -\n\fpersuasive authority to the contrary, we conclude that Cummings\n\nwas entitled to qualified immunity.\n\n As a fallback, Gray argues that the doctrine of qualified\n\nimmunity, as expounded by the Supreme Court, should be modified or\n\noverruled. Gray did not raise this argument in the district court\n\nand, thus, cannot advance it here. See Teamsters Union, Local No.\n\n59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (\"If\n\nany principle is settled in this circuit, it is that, absent the\n\nmost extraordinary circumstances, legal theories not raised\n\nsquarely in the lower court cannot be broached for the first time\n\non appeal.\").\n\n 2. Town of Athol. In addition to her section 1983 claim\n\nagainst Cummings, Gray makes a section 1983 failure-to-train claim\n\nagainst the Town. She alleges that her Fourth Amendment rights\n\nwere violated by the Town's deficient training of its police\n\nofficers (including Cummings) with respect to proper protocols for\n\ninteracting with persons suffering from mental illness. Gray's\n\nevidence, though, falls well short of making out a failure-to-\n\ntrain claim against the Town.\n\n We cut directly to the chase. \"Triggering municipal\n\nliability on a claim of failure to train requires a showing that\n\nmunicipal decisionmakers either knew or should have known that\n\ntraining was inadequate but nonetheless exhibited deliberate\n\nindifference to the unconstitutional effects of those\n\n\n - 23 -\n\finadequacies.\" Haley v. City of Boston, 657 F.3d 39, 52 (1st Cir.\n\n2011). A plaintiff typically must show a \"pattern of similar\n\nconstitutional violations by untrained employees . . . to\n\ndemonstrate deliberate indifference for purposes of failure to\n\ntrain.\" Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bd.\n\nof Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).\n\nHere, however, Gray has made no such showing.\n\n In an effort to close this gap, Gray offers expert\n\ntestimony about appropriate police practices for interacting with\n\npersons with disabilities. Building on this foundation, she\n\ninsists that \"coupled with the facts of the encounter,\" such\n\nevidence \"create[s] questions of material fact as to whether the\n\nTown failed to properly train Cummings.\" In our view, these\n\nassertions are insufficient to support a failure-to-train claim.\n\nIt is not enough to show that the Town's training regimen was\n\nfaulty; Gray must also show that the Town knew or had reason to\n\nbelieve that such a regimen had unconstitutional effects. Gray\n\nhas tendered no evidence of past violations sufficient to put the\n\nTown on notice of such effects. Given this yawning gap in her\n\nproof, Gray has not made out a genuine issue of material fact as\n\nto whether the Town was deliberately indifferent to the risk of\n\nthe alleged constitutional violation. Consequently, her failure-\n\nto-train claim founders. See id. at 72; Hill v. Walsh, 884 F.3d\n\n16, 24 (1st Cir. 2018).\n\n\n - 24 -\n\f B. The State-Law Claims.\n\n Gray's supplemental state-law claims need not detain us.\n\nGray concedes that the assault and battery and MCRA claims \"rise\n\nand fall with . . . [her] § 1983 claim.\" This concession, coupled\n\nwith Gray's failure to offer any developed argumentation with\n\nrespect to these claims, ends our inquiry. See Torres-Arroyo v.\n\nRullán, 436 F.3d 1, 7 (1st Cir. 2006) (\"Gauzy generalizations are\n\nmanifestly insufficient to preserve an issue for appellate\n\nreview.\"). We deem waived any claim of error related to the\n\ndisposition of Gray's assault and battery and MCRA claims.\n\n The magistrate judge also granted summary judgment on\n\nGray's malicious prosecution claim. On appeal, Gray does not\n\nchallenge this ruling. Consequently, we deem the malicious\n\nprosecution claim abandoned. See United States v. Zannino, 895\n\nF.2d 1, 17 (1st Cir. 1990) (explaining that \"issues adverted to in\n\na perfunctory manner, unaccompanied by some effort at developed\n\nargumentation, are deemed waived\").\n\n C. The ADA Claim.\n\n There is one last hill to climb: Gray's claim against\n\nthe Town under the ADA. Some background is helpful.\n\n Congress enacted the ADA \"to provide a clear and\n\ncomprehensive national mandate for the elimination of\n\ndiscrimination against individuals with disabilities.\" 42 U.S.C.\n\n§ 12101(b)(1). Title I proscribes disability-related\n\n\n - 25 -\n\fdiscrimination in employment, see id. § 12112, and Title III\n\nproscribes disability-related discrimination in the provision of\n\npublic accommodations (such as hotels, restaurants, and theaters),\n\nsee id. §§ 12182, 12184. Neither of these titles is implicated\n\nhere.\n\n Title II broadly provides that \"no qualified individual\n\nwith a disability shall, by reason of such disability, be excluded\n\nfrom participation in or be denied the benefits of the services,\n\nprograms, or activities of a public entity, or be subjected to\n\ndiscrimination by any such entity.\" Id. § 12132. Gray's ADA claim\n\nagainst the Town is rooted in this Title.\n\n To establish a violation of Title II, a plaintiff must\n\nshow:\n\n (1) that [s]he is a qualified individual with\n a disability; (2) that [s]he was either\n excluded from participation in or denied the\n benefits of some public entity's services,\n programs, or activities or was otherwise\n discriminated against; and (3) that such\n exclusion, denial of benefits, or\n discrimination was by reason of the\n plaintiff's disability.\n\nBuchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting\n\nParker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.\n\n2000)). A \"qualified individual with a disability\" is\n\n an individual with a disability who, with or\n without reasonable modifications to rules,\n policies, or practices, the removal of\n architectural, communication, or\n transportation barriers, or the provision of\n\n\n - 26 -\n\f auxiliary aids and services, meets the\n essential eligibility requirements for the\n receipt of services or the participation in\n programs or activities provided by a public\n entity.\n\n42 U.S.C. § 12131(2). In turn, the term \"public entity\" includes\n\n\"any State or local government\" as well as \"any department, agency,\n\nspecial purpose district, or other instrumentality of a State or\n\nStates or local government.\" Id. § 12131(1).\n\n The Town does not gainsay either that Gray is a qualified\n\nperson with a disability or that the Town is a public entity.\n\nThus, the focal point of our inquiry is whether, during Gray's\n\nencounter with Cummings, she was \"denied the benefits of [the\n\nTown's] services, programs, or activities or was otherwise\n\ndiscriminated against . . . by reason of [her] disability.\"\n\nBuchanan, 469 F.3d at 170-71.\n\n Courts have identified two general theories describing\n\nways in which a police officer may violate the ADA in executing an\n\narrest. The first such theory (which we shall call the \"effects\"\n\ntheory) holds that a violation may be found when \"police wrongly\n\narrested someone with a disability because they misperceived the\n\neffects of that disability as criminal activity.\" Gohier v.\n\nEnright, 186 F.3d 1216, 1220 (10th Cir. 1999). The second such\n\ntheory (which we shall call the \"accommodation\" theory) holds that\n\na violation may be found when police officers \"properly\n\ninvestigated and arrested a person with a disability for a crime\n\n\n - 27 -\n\funrelated to that disability, [but] they failed to reasonably\n\naccommodate the person's disability in the course of investigation\n\nor arrest, causing the person to suffer greater injury or indignity\n\nin that process than other arrestees.\" Id. at 1220-21. Before\n\nus, Gray advances arguments under both theories.8 With respect to\n\nthe \"effects\" theory, Gray argues that the criminal charges filed\n\nagainst her are an indication that Cummings misperceived her\n\nfailure to follow his commands as a crime rather than a symptom of\n\nher disability. With respect to the \"accommodation\" theory, Gray\n\nargues that Cummings should have accommodated her disability by\n\n\"employ[ing] . . . time, patience, nonthreatening communication,\n\nmonitoring from a distance, and contacting and waiting for\n\nassistance such as an ambulance or a mental health care\n\nprofessional.\"\n\n In mounting our inquiry, we start with the\n\nuncontroversial premise that the services, programs, and\n\nactivities of a municipal police department are generally subject\n\nto the provisions of Title II of the ADA. See, e.g., Haberle v.\n\n\n\n\n 8 The magistrate judge concluded that \"Gray's complaint very\nclearly proceeds solely on the basis of the second theory of\nliability — that is, an alleged failure to reasonably accommodate.\"\nThis conclusion seems to overlook the allegation in Gray's amended\ncomplaint that the Town \"brought criminal charges against [Gray]\nwithout taking her mental illness into account.\" Even so, any\nerror was harmless: the magistrate judge prudently considered the\nmerits of Gray's arguments under both the \"effects\" theory and the\n\"accommodation\" theory.\n\n\n - 28 -\n\fTroxel, 885 F.3d 170, 179-80 (3d Cir. 2018); Gorman v. Bartch, 152\n\nF.3d 907, 912 (8th Cir. 1998). Yet, three questions loom that are\n\nmatters of first impression in this circuit:\n\n Does Title II apply to ad hoc police encounters\n\n with members of the public during investigations\n\n and arrests, and if so, to what extent?\n\n Assuming that Title II applies to the encounter\n\n that occurred here, may a public entity be held\n\n liable under Title II for a line employee's actions9\n\n on a theory of respondeat superior?\n\n Is proof of a defendant's deliberate indifference\n\n (as opposed to discriminatory animus) sufficient to\n\n support a plaintiff's claim for damages under Title\n\n II?\n\nWe are reluctant to plunge headlong into these murky waters. As\n\nwe explain below, the answers to these questions are less than\n\ncertain, and adjudicating Gray's ADA claim against the Town does\n\nnot require us to run this gauntlet.\n\n The first question asks whether and to what extent Title\n\nII of the ADA applies to ad hoc police encounters. The Fifth\n\nCircuit has held that \"Title II does not apply to an officer's on-\n\nthe-street responses to reported disturbances or other similar\n\n\n 9 We use the term \"line employee\" to describe an employee who\nis not involved in policymaking.\n\n\n - 29 -\n\fincidents, whether or not those calls involve subjects with mental\n\ndisabilities, prior to the officer's securing the scene and\n\nensuring that there is no threat to human life.\" Hainze v.\n\nRichards, 207 F.3d 795, 801 (5th Cir. 2000). Other circuits,\n\nthough, have charted a different course, holding that Title II\n\napplies without exception to ad hoc police encounters. See, e.g.,\n\nHaberle, 885 F.3d at 180 (concluding that \"police officers may\n\nviolate the ADA when making an arrest by failing to provide\n\nreasonable accommodations for a qualified arrestee's disability\");\n\nBircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)\n\n(explaining that \"Title II prohibits discrimination by a public\n\nentity by reason of [plaintiff]'s disability\" during\n\ninvestigations and arrests); see also Gohier, 186 F.3d at 1221\n\n(stating that \"a broad rule categorically excluding arrests from\n\nthe scope of Title II . . . is not the law\"). Under this approach,\n\nexigent circumstances attendant to a police officer's decisions\n\nduring an ad hoc encounter simply weigh in the balance when\n\nevaluating the reasonableness of a prospective ADA accommodation.\n\nSee Haberle, 885 F.3d at 181 n.11; Bircoll, 480 F.3d at 1085-86.10\n\n\n 10 The Ninth Circuit reached the same conclusion in Sheehan\nv. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir.\n2014). The Supreme Court granted certiorari in Sheehan in order\nto resolve whether Title II of the ADA \"requires law enforcement\nofficers to provide accommodations to an armed, violent, and\nmentally ill suspect in the course of bringing the suspect into\ncustody.\" City & County of San Francisco v. Sheehan, 135 S. Ct.\n1765, 1772 (2015). The Court later concluded that certiorari on\n\n\n - 30 -\n\fWhile no circuit has found Title II of the ADA wholly inapplicable\n\nto ad hoc police encounters, the differences in approach indicate\n\nto us that we should tread cautiously. For present purposes, it\n\nis sufficient for us to assume, favorably to Gray, that Title II\n\nof the ADA applies to ad hoc police encounters (such as the\n\nencounter here) and that exigent circumstances may shed light on\n\nthe reasonableness of an officer's actions.\n\n The second question asks whether a public entity can be\n\nvicariously liable for money damages under Title II of the ADA\n\nbased on the conduct of a line employee. This question arises\n\nbecause, in Gebser v. Lago Vista Independent School District, 524\n\nU.S. 274 (1998), the Supreme Court held that a school district\n\ncould not be held liable under Title IX of the Education Amendments\n\nof 1972 \"unless an official who at a minimum has authority to\n\naddress the alleged discrimination and to institute corrective\n\nmeasures on the [district]'s behalf has actual knowledge of\n\ndiscrimination.\" Id. at 290. Whether the rationale of Gebser\n\nshould be extended to insulate public entities from liability under\n\nTitle II of the ADA on a theory of respondeat superior is an open\n\nquestion. Compare, e.g., Duvall v. County of Kitsap, 260 F.3d\n\n1124, 1141 (9th Cir. 2001) (stating that \"public entity is liable\n\n\n\n\nthis question had been improvidently granted. See id. at 1774.\nThe Court took pains to note, though, that whether Title II\n\"applies to arrests is an important question.\" Id. at 1773.\n\n\n - 31 -\n\ffor the vicarious acts of its employees\" under Title II), with,\n\ne.g., Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348-\n\n49 (11th Cir. 2012) (finding no respondeat superior liability under\n\nsection 504 of Rehabilitation Act in light of Gebser).11 For\n\npresent purposes, it is sufficient for us to assume, favorably to\n\nGray, that the Town could be held vicariously liable under Title\n\nII for Cummings's actions.\n\n The third question asks whether a showing of deliberate\n\nindifference is enough to support recovery of money damages under\n\nTitle II. Since a plaintiff must show \"intentional discrimination\"\n\non the part of the public entity to be eligible for damages on a\n\nTitle II claim, Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126\n\n(1st Cir. 2003), some uncertainty exists as to whether \"deliberate\n\nindifference\" is the functional equivalent of \"intentional\n\ndiscrimination.\" Several of our sister circuits have held that a\n\nshowing of deliberate indifference may suffice to prove this\n\nelement. See, e.g., Haberle, 885 F.3d at 181; Duvall, 260 F.3d at\n\n1138. But the question is open in this circuit, and we have stated\n\nthat, \"under Title II, non-economic damages are only available\n\nwhen there is evidence 'of economic harm or animus toward the\n\n\n\n\n 11 As a general matter, Title II of the ADA \"is to be\ninterpreted consistently with\" section 504 of the Rehabilitation\nAct, which prohibits disability discrimination by entities\nreceiving federal financial assistance. Theriault v. Flynn, 162\nF.3d 46, 48 n.3 (1st Cir. 1998).\n\n\n - 32 -\n\fdisabled.'\" Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st\n\nCir. 2006) (quoting Nieves-Márquez, 353 F.3d at 126-27). This\n\ncase does not require us to parse whether our use of the word\n\n\"animus\" demands more than a showing of deliberate indifference,\n\ncf. S.H. ex. rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d\n\n248, 263 (3d Cir. 2013) (interpreting Nieves-Márquez as requiring\n\n\"a higher showing of intentional discrimination than deliberate\n\nindifference\"), particularly since the Town has not advanced such\n\nan argument. For present purposes, it is sufficient for us to\n\nassume, favorably to Gray, that deliberate indifference is the\n\nappropriate standard.\n\n Adjudicating Grays's ADA claim against the Town does not\n\nrequire us to run the gauntlet of these questions. After all, we\n\nhave admonished before — and today reaffirm — that \"courts should\n\nnot rush to decide unsettled legal issues that can easily be\n\navoided.\" United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir.\n\n2013). Consistent with this prudential principle, we decline to\n\nanswer any of the three questions identified above. No matter how\n\nthe loaf is sliced, Gray was obliged at a bare minimum to make out\n\na genuine issue of material fact as to Cummings's deliberate\n\nindifference to the risk of an ADA violation.\n\n In this context, such a showing requires proof that the\n\ndefendant knew that an ADA-protected right was likely to be\n\nabridged, yet neglected to take available preventative action\n\n\n - 33 -\n\fnotwithstanding such knowledge. See Haberle, 885 F.3d at 181;\n\nDuvall, 260 F.3d at 1139-40. In other words, to hold the Town\n\nvicariously liable under Title II based on Cummings's deliberate\n\nindifference, Gray would have to show that Cummings knew that Gray\n\nhad a disability that required him to act differently than he would\n\notherwise have acted, yet failed to adjust his behavior\n\naccordingly. See, e.g., Crane v. Lifemark Hosps., Inc., 898 F.3d\n\n1130, 1136 (11th Cir. 2018); Duvall, 260 F.3d at 1140. Thus, to\n\nprevail on her version of the \"effects\" theory, Gray would at least\n\nhave to show that Cummings knew that her failure to follow his\n\norders was a symptom of her mental illness rather than deliberate\n\ndisobedience (warranting criminal charges). Similarly, to prevail\n\non her version of the \"accommodation\" theory, Gray would at least\n\nhave to show that Cummings knew that there was a reasonable\n\naccommodation, which he was required to provide. Gray has not\n\nmade either such showing.\n\n To be sure, it is undisputed that Cummings knew that\n\nGray was a section 12 patient and, thus, had a disability\n\n(specifically, that she suffered from an unspecified mental\n\nillness). See Mass. Gen. Laws ch. 123, § 12. But Gray has not\n\nshown that Cummings had any particularized knowledge about the\n\nnature or degree of Gray's disability. As we have explained, see\n\nsupra Part II.A, the fact that Gray was a section 12 patient served\n\nonly to put Cummings on notice that she had been deemed a danger\n\n\n - 34 -\n\fto herself or to others. There is insufficient evidence to suggest\n\nthat Cummings knew either that Gray suffered from bipolar disorder\n\nor that she was experiencing a manic episode. Without such\n\nparticularized knowledge, Cummings had no way of gauging whether\n\nthe conduct that appeared unlawful to him was likely to be a\n\nmanifestation of the symptoms of Gray's mental illness. So, too,\n\nwithout such particularized knowledge, Cummings had no way of\n\ngauging what specific accommodation, if any, might have been\n\nreasonable under the circumstances.\n\n Of course, Gray has adduced evidence that national\n\npolice standards provide protocols for dealing with individuals\n\nsuffering from any type of mental illness. Critically, though,\n\nGray has not adduced any evidence showing that Cummings knew of\n\nthe existence of such standards.12 Consequently, Cummings had no\n\nway of knowing that an ADA-protected right was likely to be\n\njeopardized by his actions.\n\n\n\n\n 12For the sake of completeness, we again note that the Town\nhas a policy, which states that Tasers should not be used against\n\"[t]hose known to be suffering from severe mental illness.\" Based\non this policy, it might be argued that refraining from using a\nTaser against Gray would have been a reasonable accommodation for\nher disability. It might also be argued that, in tasing Gray in\ncontravention of the policy, Cummings exhibited deliberate\nindifference. The rub, though, is that Gray has not advanced any\nsuch argument either below or in her appellate briefing. \"In the\nabsence of extraordinary circumstances, none of which are apparent\nhere, we have regularly declined to consider points which were not\nseasonably advanced below.\" Clauson v. Smith, 823 F.2d 660, 666\n(1st Cir. 1987).\n\n\n - 35 -\n\f Nor were Cummings's actions so plainly antithetic to the\n\nADA as to obviate the knowledge requirement. See Haberle, 885\n\nF.3d at 182. The record makes manifest that Cummings tried to\n\ntalk to Gray before physically engaging with her, telling her\n\nrepeatedly that she needed to return to the hospital. He followed\n\nher from a distance and did not make physical contact with her\n\nuntil she reversed direction and moved toward him. And in the\n\nensuing encounter, he warned her that she would be tased if she\n\ndid not put her hands behind her back and gave her several chances\n\nto comply before using the Taser (in the least intrusive mode\n\navailable).\n\n Gray has also offered evidence that in failing to wait\n\nfor backup or to call an ambulance prior to approaching her,\n\nCummings fell short of nationally recognized police standards.\n\nBut as we have said, she has not shown that Cummings knew of such\n\nstandards; and in all events, \"falling below national standards\n\ndoes not, in and of itself, make the risk of an ADA violation\" so\n\nobvious as to eliminate the knowledge requirement. Id.\n\n By the same token, Gray has not offered evidence\n\nsufficient to sustain a claim of direct liability against the Town.\n\nTo make out such a claim, Gray could show that the Town's \"existing\n\npolicies caused a failure to 'adequately respond to a pattern of\n\npast occurrences of injuries like [hers].'\" Id. at 181 (quoting\n\nBeers-Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001)). Or\n\n\n - 36 -\n\fshe could show \"that the risk of . . . cognizable harm was 'so\n\ngreat and so obvious'\" as to override the requirement of\n\ndemonstrating a pattern. Id. (quoting Beers-Capitol, 256 F.3d at\n\n136-37). Gray has not made either showing: she has proffered no\n\nevidence of a pattern, nor has she shown an obvious risk of harm.\n\nAt most, she has put forth evidence that the Town's policies failed\n\nto comply with national standards. But such a failure — without\n\nmore — does not render the risk of harm so great and obvious as to\n\nexcuse a failure to satisfy the pattern requirement. See id. at\n\n182.\n\n To this point, we have explained why Gray's claim for\n\nmoney damages is impuissant. But Gray's amended complaint also\n\nprays for injunctive relief. This form of redress, too, is beyond\n\nGray's reach. Past injury, in and of itself, \"is an insufficient\n\npredicate for equitable relief.\" Am. Postal Workers Union v.\n\nFrank, 968 F.2d 1373, 1376 (1st Cir. 1992). To have standing to\n\npursue injunctive relief, a plaintiff must \"establish a real and\n\nimmediate threat\" resulting in \"a sufficient likelihood that [s]he\n\nwill again be wronged in a similar way.\" Id. (quoting Los Angeles\n\nv. Lyons, 461 U.S. 95, 109, 111 (1983)); see Updike v. Multnomah\n\nCounty, 870 F.3d 939, 948 (9th Cir. 2017), cert. denied sub nom.\n\nMultnomah County v. Updike, 139 S. Ct. 55 (2018) (finding that ADA\n\nplaintiff \"lack[ed] standing to pursue his claims for injunctive\n\nrelief\"); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st\n\n\n - 37 -\n\fCir. 2003) (requiring \"real and immediate threat of ongoing harm\"\n\nfor injunctive relief in ADA case). Gray cannot clear this hurdle.\n\nWhen all is said and done, it is not enough for Gray to show that\n\nbecause she has bipolar disorder, she is likely to encounter the\n\npolice again. She must show that she is likely to be tased once\n\nmore, see Lyons, 461 U.S. at 105-06, and she has not managed any\n\nsuch showing.\n\n Because there is no remedy available to Gray under Title\n\nII of the ADA, it follows that the district court did not err in\n\nentering summary judgment for the Town on Gray's ADA claim. See\n\nCarmona-Rivera, 464 F.3d at 18 (affirming summary judgment for\n\ndefendants where no remedy was available to plaintiff on ADA\n\nclaim).\n\nIII. CONCLUSION\n\n We need go no further. We add only that this is a hard\n\ncase — a case that is made all the more difficult because of two\n\ncompeting concerns: our concern for the rights of the disabled\n\nand our concern that the police not be unduly hampered in the\n\nperformance of their important duties. In the end, though, we\n\nthink that the protections provided by Title II of the ADA can be\n\nharmonized with the doctrines of excessive force and qualified\n\nimmunity, as explicated by the Supreme Court, to achieve a result\n\nthat gives each of these competing concerns their due. We think\n\nthat our ruling today — which establishes in this circuit that a\n\n\n - 38 -\n\fjury could supportably find the use of a Taser to quell a\n\nnonviolent, mentally ill person who is resisting arrest to be\n\nexcessive force — satisfies this exacting standard.\n\n\n\nAffirmed.\n\n\n\n\n - 39 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Judith GRAY, Plaintiff, Appellant, v. Thomas A. CUMMINGS ; Town of Athol, Massachusetts, Defendants, Appellees.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1303\\n\\n JUDITH GRAY,\\n\\n Plaintiff, Appellant,\\n\\n v.\\n\\n THOMAS A. CUMMINGS;\\n TOWN OF ATHOL, MASSACHUSETTS,\\n\\n Defendants, Appellees.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Timothy S. Hillman, U.S. District Judge]\\n [Hon. David H. Hennessy, U.S. Magistrate Judge]\\n\\n\\n Before\\n\\n Kayatta, Circuit Judge,\\n Souter, Associate Justice,\\n and Selya, Circuit Judge.\\n\\n\\n Matthew R. Segal, with whom Ruth A. Bourquin, American Civil\\nLiberties Union Foundation of Massachusetts, Inc., Claudia Center,\\nAmerican Civil Liberties Union Foundation, Richard L. Neumeier,\\nand Morrison Mahoney LLP, were on brief, for appellant.\\n David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer\\nCutler Pickering Hale and Dorr LLP, Aaron M. Panner, Kellogg,\\nHansen, Todd, Figel & Frederick, P.L.L.C., Nathalie F. P. Gilfoyle,\\nDeanne M. Ottaviano, and Jennifer Mathis on brief for American\\nPsychiatric Association, American Psychological Association, and\\n\\n \\n Hon. David H. Souter, Associate Justice (Ret.) of the Supreme\\nCourt of the United States, sitting by designation.\\n\\fJudge David L. Bazelon Center for Mental Health Law, amici curiae\\n(in support of neither party).\\n Thomas R. Donohue, with whom Deidre Brennan Regan, Leonard H.\\nKesten, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief,\\nfor appellees.\\n Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello,\\nand Petrini & Associates, P.C. on brief for International Municipal\\nLawyers Association and Massachusetts Chiefs of Police\\nAssociation, Inc., amici curiae (in support of affirmance).\\n Pamela B. Petersen on brief for Axon Enterprise, Inc., amicus\\ncuriae (in support of affirmance).\\n\\n\\n February 22, 2019\\n\\f SELYA, Circuit Judge. This appeal arises at the\\n\\nintersection of constitutional law and disability-rights law. It\\n\\ntouches upon a plethora of important issues. Some of these issues\\n\\nrelate to the appropriateness of a police officer's use of a Taser\\n\\nin attempting to regain custody of a mentally ill person who, after\\n\\nbeing involuntarily committed, absconded from a hospital. Others\\n\\nrelate to the applicability vel non of Title II of the Americans\\n\\nwith Disabilities Act (ADA), 42 U.S.C. §§ 12131-65, to ad hoc\\n\\npolice encounters. In the end, we decide the case on the narrowest\\n\\navailable grounds and affirm the entry of summary judgment for the\\n\\ndefendants.\\n\\nI. BACKGROUND\\n\\n This case has its genesis in an on-the-street encounter\\n\\nbetween plaintiff-appellant Judith Gray (who suffers from bipolar\\n\\ndisorder) and Thomas Cummings, a police officer in Athol,\\n\\nMassachusetts (the Town). Because the case was decided below at\\n\\nthe summary judgment stage, we must take the facts in the light\\n\\nmost hospitable to the non-moving party (here, Gray), consistent\\n\\nwith record support. See Houlton Citizens' Coal. v. Town of\\n\\nHoulton, 175 F.3d 178, 184 (1st Cir. 1999). We caution, though,\\n\\nthat we are not obliged to credit \\\"conclusory allegations,\\n\\nimprobable inferences, acrimonious invective, or rank\\n\\nspeculation.\\\" Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).\\n\\n\\n\\n\\n - 3 -\\n\\f Here, the raw facts are largely undisputed. In her\\n\\ndeposition, Gray testified that she \\\"really [didn't] know what\\n\\nhappened\\\" during the incident because she \\\"was in a full-blown\\n\\nmanic phase.\\\" She added that she \\\"wouldn't know Officer Cummings\\n\\nif [she] fell over him\\\" and that she had reviewed the police report\\n\\nprepared by Cummings and did not know whether or not it accurately\\n\\ndescribed the events that had transpired. Nor did she present any\\n\\nother evidence contradicting Cummings's version of the relevant\\n\\nevents. Although we recognize that juries have some leeway to\\n\\n\\\"reject uncontradicted, unimpeached testimony when it is\\n\\nimprobable, inherently contradictory, riddled with omissions, or\\n\\ndelivered in a manner giving rise to doubts,\\\" Quintana-Ruiz v.\\n\\nHyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002), that\\n\\nprinciple has no application here. Accordingly, we elicit many of\\n\\nthe facts from Cummings's account. See Harriman v. Hancock County,\\n\\n627 F.3d 22, 34 (1st Cir. 2010) (finding no material factual\\n\\ndispute when plaintiff \\\"had no memory of being beaten by anyone at\\n\\nanytime relevant to this case\\\"); see also Wertish v. Krueger, 433\\n\\nF.3d 1062, 1065 (8th Cir. 2006) (deeming police officer's version\\n\\nof events \\\"unrefuted\\\" when plaintiff testified that he had very\\n\\nlittle memory of relevant events). Even so, we draw all reasonable\\n\\ninferences from those facts in Gray's favor.\\n\\n On May 2, 2013, Gray — who was then fifty-seven years\\n\\nold — experienced a manic episode and called 911. Athol police\\n\\n\\n - 4 -\\n\\fofficers arrived at Gray's home and transported her to Athol\\n\\nMemorial Hospital. She was admitted to the hospital at around\\n\\n4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, § 12 (authorizing\\n\\ninvoluntary \\\"[e]mergency restraint and hospitalization of persons\\n\\nposing risk of serious harm by reason of mental illness\\\").\\n\\nApproximately six hours later, Gray absconded from the hospital on\\n\\nfoot. Hospital staff called the Athol Police Department, asking\\n\\nthat Gray — \\\"a section 12 patient\\\" — be \\\"picked up and brought\\n\\nback.\\\"\\n\\n Cummings responded to the call and quickly located Gray,\\n\\nwalking barefoot along the sidewalk less than a quarter-mile from\\n\\nthe hospital. Cummings got out of his police cruiser. Gray swore\\n\\nat him, and Cummings told her that she \\\"ha[d] to go back to the\\n\\nhospital.\\\" Gray again used profanity, declared that she was not\\n\\ngoing back, and continued to walk away. In response, Cummings\\n\\nradioed for backup and followed Gray on foot. He repeatedly\\n\\nimplored Gray to return to the hospital, but his importunings were\\n\\ngreeted only by more profanity.\\n\\n Initially, Cummings followed Gray at a distance of\\n\\nroughly one hundred feet. Within twenty-five to thirty seconds,\\n\\nhe closed to within five feet. At that point, Gray stopped, turned\\n\\naround, \\\"clenched her fists, clenched her teeth, flexed her body\\n\\nand stared at [Cummings] as if she was looking right through\\n\\n[him].\\\" She again swore at Cummings and started walking toward\\n\\n\\n - 5 -\\n\\fhim. Cummings grabbed Gray's shirt but he could feel Gray moving\\n\\nher body forward, so he \\\"took her to the ground.\\\" It is undisputed\\n\\nthat Cummings had a distinct height and weight advantage: he was\\n\\nsix feet, three inches tall and weighed 215 pounds, whereas Gray\\n\\nwas five feet, ten inches tall and weighed 140 pounds.\\n\\n Cummings testified that once on the ground, he\\n\\nrepeatedly instructed Gray to place her hands behind her back.\\n\\nShe did not comply. Instead, she \\\"tucked her arms underneath her\\n\\nchest and flex[ed] tightly,\\\" swearing all the while. Cummings\\n\\nwarned Gray that she was \\\"going to get ta[s]ed\\\" if she did not\\n\\nplace her hands behind her back.1 Gray did not heed this warning\\n\\nbut, rather, swore at Cummings again and told him to \\\"do it.\\\"\\n\\nCummings made \\\"one last final demand [for Gray] to stop resisting\\\"\\n\\nand when \\\"Gray refused to listen,\\\" he removed the cartridge from\\n\\nhis Taser, placed it in drive-stun mode,2 and tased Gray's back\\n\\nfor four to six seconds. Gray then allowed him to handcuff her.\\n\\n\\n\\n\\n 1\\n Gray testified she was told that she would be tased if she\\nstood up. She also testified that at some point she was ordered\\nto get to her knees, but that, due to prior injuries, she was\\nunable to obey this order. Given Gray's repeated statements that\\nshe could not recall the details of the encounter and that she\\ncould not identify any factual inaccuracies in Cummings's police\\nreport, we find these assertions insufficient to refute Cummings's\\naccount. See Wertish, 433 F.3d at 1065.\\n 2 Drive-stun mode is the least intrusive setting for a Taser:\\n\\nit delivers only a localized impact to the target. This contrasts\\nwith probe-deployment mode, which disrupts the target's entire\\nnervous system.\\n\\n\\n - 6 -\\n\\f Cummings helped Gray to her feet and called an ambulance,\\n\\nwhich transported Gray to the hospital. According to Gray, she\\n\\nfelt \\\"pain all over\\\" at the moment she was tased, but she \\\"must\\n\\nhave passed out because [she] woke up in Emergency.\\\" Charges were\\n\\nsubsequently filed against Gray for assault on a police officer,\\n\\nresisting arrest, disturbing the peace, and disorderly conduct,\\n\\nbut were eventually dropped.\\n\\n In due season, Gray sued Cummings and the Town in the\\n\\nfederal district court. She invoked federal question\\n\\njurisdiction, see 28 U.S.C. § 1331, and asserted causes of action\\n\\nunder 42 U.S.C. § 1983 and Title II of the ADA, along with\\n\\nsupplemental state-law claims for assault and battery, malicious\\n\\nprosecution, and violations of the Massachusetts Civil Rights Act\\n\\n(MCRA), Mass. Gen. Laws ch. 12, §§ 11H-11I. After the completion\\n\\nof pretrial discovery, the defendants moved for summary judgment.\\n\\nSee Fed. R. Civ. P. 56(a). The district court referred the opposed\\n\\nmotion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.\\n\\nR. Civ. P. 72(b). Following a hearing, the magistrate judge issued\\n\\na report and recommendation, suggesting that the motion be granted.\\n\\nSpecifically, the magistrate judge found no violation of the Fourth\\n\\nAmendment under section 1983 on the part of either Cummings or the\\n\\nTown and no viable state-law claims. As to Cummings, the\\n\\nmagistrate judge added that, in any event, he was entitled to\\n\\nqualified immunity. The magistrate judge further concluded that\\n\\n\\n - 7 -\\n\\fthere had been no abridgement of the ADA because, regardless of\\n\\nGray's disability, Cummings was entitled to employ an \\\"appropriate\\n\\nlevel of force in response to an ongoing threat.\\\"\\n\\n Gray objected to the magistrate judge's report and\\n\\nrecommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.\\n\\n72(b). On de novo review, see Mercy Hosp., Inc. v. Mass. Nurses\\n\\nAss'n, 429 F.3d 338, 343 (1st Cir. 2005), the district court\\n\\nentered a two-sentence text order adopting the magistrate judge's\\n\\nreport and recommendation in substantial part. Because the court\\n\\nagreed that Cummings was entitled to qualified immunity, it\\n\\ndeclined to express any opinion on the magistrate judge's\\n\\ndetermination that \\\"Cummings employed reasonable force under all\\n\\nof the circumstances.\\\"\\n\\n This timely appeal followed. In addition to the parties'\\n\\nbriefs and oral argument, we have had the benefit of able briefing\\n\\nby several amici.\\n\\nII. ANALYSIS\\n\\n We review an order granting summary judgment de novo.\\n\\nSee Houlten Citizens' Coal., 175 F.3d at 184. \\\"We will affirm\\n\\nonly if the record reveals 'that there is no genuine dispute as to\\n\\nany material fact and the movant is entitled to judgment as a\\n\\nmatter of law.'\\\" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.\\n\\n2011) (quoting Fed. R. Civ. P. 56(a)). Against this backdrop, we\\n\\nproceed to Gray's claims.\\n\\n\\n - 8 -\\n\\f A. The Section 1983 Claims.\\n\\n Section 1983 supplies a private right of action against\\n\\na person who, under color of state law, deprives another of \\\"any\\n\\nrights, privileges, or immunities secured by the Constitution and\\n\\n[federal] laws.\\\" 42 U.S.C. § 1983. To maintain a cause of action\\n\\nunder section 1983, \\\"the plaintiff must show a deprivation of a\\n\\nfederally secured right.\\\" Harrington v. City of Nashua, 610 F.3d\\n\\n24, 28 (1st Cir. 2010). Gray has advanced separate section 1983\\n\\nclaims against Cummings and the Town. We address these claims\\n\\nsequentially.\\n\\n 1. Cummings. Gray's section 1983 claim against Cummings\\n\\nis premised on the notion that Cummings used excessive force in\\n\\neffecting her arrest and, thus, violated her Fourth Amendment\\n\\nrights. To prevail on such a claim, \\\"a plaintiff must show that\\n\\nthe defendant employed force that was unreasonable under all the\\n\\ncircumstances.\\\" Morelli v. Webster, 552 F.3d 12, 23 (1st Cir.\\n\\n2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The\\n\\ndegree of force to be used in any given situation is most often a\\n\\njudgment call, which sometimes must be made in a split second by\\n\\na police officer confronted with rapidly evolving circumstances.\\n\\nDetermining whether a particular use of force is reasonable\\n\\nrequires consideration of the totality of the circumstances. See\\n\\nGraham, 490 U.S. at 396. This consideration entails the weighing\\n\\nof a myriad of factors such as \\\"the severity of the crime at issue,\\n\\n\\n - 9 -\\n\\fwhether the suspect pose[d] an immediate threat to the safety of\\n\\nthe officers or others, and whether [the suspect was] actively\\n\\nresisting arrest or attempting to evade arrest by flight.\\\" Id.\\n\\n Our starting point is the question of whether a\\n\\nreasonable jury could find that Cummings violated Gray's Fourth\\n\\nAmendment rights through the use of excessive force. The\\n\\nmagistrate judge answered this question in the negative,\\n\\nconcluding that, as a matter of law, \\\"the single deployment of a\\n\\ntaser in drive stun mode\\\" in these particular circumstances was\\n\\nreasonable. Viewing the record most hospitably to Gray and drawing\\n\\nall reasonable inferences to her behoof, we think that a reasonable\\n\\njury could find that the force employed by Cummings violated the\\n\\nFourth Amendment. We explain briefly.\\n\\n The Town's policies describe a Taser in drive-stun mode\\n\\nas a \\\"pain compliance tool.\\\"3 Thus, the question reduces to whether\\n\\nthe circumstances surrounding the confrontation between Gray and\\n\\nCummings, interpreted in the light most favorable to Gray,\\n\\njustified Cummings's use of such a tool.\\n\\n The magistrate judge analyzed this question in\\n\\naccordance with the Graham factors. In his view, the first factor\\n\\n— \\\"the severity of the crime at issue,\\\" id. — favored Cummings\\n\\n\\n 3 This description is consistent with the descriptions found\\nin the case law. See, e.g., Crowell v. Kirkpatrick, 400 F. App'x\\n592, 595 (2d Cir. 2010) (explaining that drive-stun mode \\\"typically\\ncauses temporary, if significant, pain and no permanent injury\\\").\\n\\n\\n - 10 -\\n\\fbecause \\\"Ms. Gray assaulted [him].\\\" At summary judgment, though,\\n\\nthis assessment is insupportable: it fails to view the facts in\\n\\nthe light most favorable to Gray.\\n\\n In this regard, we think it important that Cummings was\\n\\nnot called to the scene to investigate a crime; he was there to\\n\\nreturn a person suffering from mental illness to the hospital.\\n\\nWhen the subject of a seizure has not committed any crime, the\\n\\nfirst Graham factor ordinarily cuts in the subject's favor. See\\n\\nEstate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810\\n\\nF.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not submit to\\n\\nCummings's orders. Withal, this failure to obey was at most a\\n\\nminor crime, not one that would tip the first Graham factor in\\n\\nCummings's favor. See id. at 899-900.\\n\\n Nor does the alleged assault tilt the scales. In\\n\\nCummings's view, the assault occurred when, after Gray walked\\n\\ntoward him, he grabbed her shirt and she \\\"continued pushing against\\n\\n[his] arm.\\\" In the circumstances of this case, we think that a\\n\\nreasonable jury could find that the facts did not support the\\n\\ncharacterization of Gray's actions as an \\\"assault.\\\"\\n\\n The same kind of defect mars the magistrate judge's\\n\\ndetermination that the second Graham factor — \\\"whether the suspect\\n\\nposes an immediate threat to the safety of the officers or others,\\\"\\n\\n490 U.S. at 396 — favored Cummings. It is true that Gray was a\\n\\nsection 12 patient, that is, an individual who has been\\n\\n\\n - 11 -\\n\\finvoluntarily committed to a hospital pursuant to Mass. Gen. Laws\\n\\nch. 123, § 12, based on a determination by a qualified medical\\n\\nprofessional (or, in emergency situations, a police officer) that\\n\\n\\\"failure to hospitalize [her] would create a likelihood of serious\\n\\nharm by reason of mental illness.\\\" Id. § 12(a). It is also true\\n\\nthat Cummings knew as much. Although a jury could supportably\\n\\nfind on these facts that Cummings reasonably believed that Gray\\n\\nposed a danger to him, it could supportably find instead that Gray\\n\\n— who was shuffling down the sidewalk barefoot and unarmed — only\\n\\nposed a danger to herself (especially given Cummings's distinct\\n\\nheight and weight advantage). So, too, a jury could supportably\\n\\nfind that, at the time of the tasing, Gray had been subdued to a\\n\\npoint at which she no longer posed a threat.\\n\\n The magistrate judge concluded that the final Graham\\n\\nfactor — whether Gray was \\\"actively resisting arrest,\\\" 490 U.S. at\\n\\n396 — favored Cummings. This conclusion seems unimpugnable given\\n\\nCummings's testimony that he asked Gray several times to put her\\n\\nhands behind her back, but that she would not do so.\\n\\n The short of it is that the Graham factors point in\\n\\nconflicting directions. Seen through the prism of the totality of\\n\\nthe circumstances, the evidence is subject to interpretation and\\n\\ncan support plausible though inconsistent inferences. Drawing\\n\\nthose inferences beneficially to Gray and aware that Cummings not\\n\\nonly had her down on the ground but also outweighed her by some\\n\\n\\n - 12 -\\n\\fseventy-five pounds, a reasonable jury could find that Gray had\\n\\ncommitted no crime and that she posed no threat to Cummings when\\n\\nhe tased her. When all is said and done, we think that Gray has\\n\\npresented sufficient evidence to make out a jury question as to\\n\\nwhether Cummings used excessive force. See, e.g., Morelli, 552\\n\\nF.3d at 23 (finding triable excessive force claim when officer\\n\\nslammed plaintiff, who \\\"at worst, was suspected of being a petty\\n\\nthief,\\\" against wall); Alexis v. McDonald's Rests. of Mass., Inc.,\\n\\n67 F.3d 341, 353 (1st Cir. 1995) (concluding that jury could find\\n\\nexcessive force when officer seized and dragged plaintiff to\\n\\neffectuate arrest for crime of trespassing in public restaurant);\\n\\nsee also Estate of Armstrong, 810 F.3d at 906 (finding excessive\\n\\nforce when officer tased \\\"mentally ill man being seized for his\\n\\nown protection, [who] was seated on the ground, was hugging a post\\n\\nto ensure his immobility, . . . and had failed to submit to a\\n\\nlawful seizure for only 30 seconds\\\").\\n\\n This conclusion does not end our inquiry. Cummings has\\n\\ninvoked the defense of qualified immunity. Qualified immunity is\\n\\na doctrine aimed at providing government officials (including\\n\\npolice officers) a modicum of protection from civil damages\\n\\nliability for actions taken under color of state law. See Harlow\\n\\nv. Fitzgerald, 457 U.S. 800, 818 (1982); McKenney v. Mangino, 873\\n\\nF.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018).\\n\\nThis protection attaches \\\"to all but the plainly incompetent or\\n\\n\\n - 13 -\\n\\fthose who knowingly violate the law.\\\" Malley v. Briggs, 475 U.S.\\n\\n335, 341 (1986). Thus, a government official may invoke the\\n\\ndefense of qualified immunity when his actions, though causing\\n\\ninjury, did \\\"not violate clearly established statutory or\\n\\nconstitutional rights of which a reasonable person would have\\n\\nknown.\\\" Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)\\n\\n(quoting Harlow, 457 U.S. at 818).\\n\\n The qualified immunity analysis has two facets: \\\"[t]he\\n\\ncourt must determine whether the defendant violated the\\n\\nplaintiff's constitutional rights\\\" and then must determine\\n\\n\\\"whether the allegedly abridged right was 'clearly established' at\\n\\nthe time of the defendant's claimed misconduct.\\\" Id. at 155\\n\\n(quoting McKenney, 873 F.3d at 81). In this instance, we already\\n\\nhave decided that a jury could find that Cummings violated Gray's\\n\\nFourth Amendment rights. We must now determine whether the alleged\\n\\nright was clearly established at the time of Cummings's violation.\\n\\nSee id. Specifically, we must ask whether, given the circumstances\\n\\nat hand, Gray's right to be free from the degree of force that\\n\\nCummings used — particularly, the Taser — was clearly established.\\n\\n This question, too, has two facets. First, the plaintiff\\n\\nmust \\\"identify either 'controlling authority' or a 'consensus of\\n\\ncases of persuasive authority' sufficient to send a clear signal\\n\\nto a reasonable official that certain conduct falls short of the\\n\\nconstitutional norm.\\\" Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir.\\n\\n\\n - 14 -\\n\\f2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Second,\\n\\nthe plaintiff must demonstrate that \\\"an objectively reasonable\\n\\nofficial in the defendant's position would have known that his\\n\\nconduct violated that rule of law.\\\" Id. This latter step is\\n\\ndesigned to achieve a prophylactic purpose: it affords \\\"some\\n\\nbreathing room for a police officer even if he has made a mistake\\n\\n(albeit a reasonable one) about the lawfulness of his conduct.\\\"\\n\\nConlogue, 906 F.3d at 155. Taken together, these steps normally\\n\\nrequire that, to defeat a police officer's qualified immunity\\n\\ndefense, a plaintiff must \\\"identify a case where an officer acting\\n\\nunder similar circumstances was held to have violated the Fourth\\n\\nAmendment.\\\" City of Escondido v. Emmons, 139 S. Ct. 500, 504\\n\\n(2019) (per curiam) (quoting District of Columbia v. Wesby, 138 S.\\n\\nCt. 577, 590 (2018)); see Anderson v. Creighton, 483 U.S. 635,\\n\\n639-40 (1987). Although such a case need not arise on identical\\n\\nfacts, it must be sufficiently analogous to make pellucid to an\\n\\nobjectively reasonable officer the unlawfulness of his actions.4\\n\\nSee City of Escondido, 139 S. Ct. at 504; Ashcroft v. al-Kidd, 563\\n\\nU.S. 731, 741 (2011).\\n\\n\\n\\n\\n 4 Sometimes, however, this requirement is relaxed. In\\ncircumstances in which a violation of rights is apparent, a\\nplaintiff may thwart a qualified immunity defense simply by\\ndemonstrating that \\\"the unlawfulness of the officer's conduct is\\nsufficiently clear even though existing precedent does not address\\nsimilar circumstances.\\\" City of Escondido, 139 S. Ct. at 504\\n(quoting Wesby, 138 S. Ct. at 590). This is not such a case.\\n\\n\\n - 15 -\\n\\f The district court determined that \\\"the right not to be\\n\\ntased while offering non-violent stationary, resistance to a\\n\\nlawful seizure was not clearly established at the time of the\\n\\nconfrontation between Ms. Gray and Officer Cummings\\\" and,\\n\\ntherefore, ruled that Cummings was entitled to qualified immunity.\\n\\nWe examine the foundation on which this ruling rests.\\n\\n We begin with Estate of Armstrong, in which the Fourth\\n\\nCircuit conducted a similar qualified immunity analysis.\\n\\nSpecifically, the court considered whether the \\\"right not to be\\n\\nsubjected to tasing while offering stationary and non-violent\\n\\nresistance to a lawful seizure\\\" was clearly established. 810 F.3d\\n\\nat 907. Armstrong, who suffered from bipolar disorder and paranoid\\n\\nschizophrenia, had absconded from the hospital to which he had\\n\\nbeen committed. See id. at 896. The police were called and\\n\\nlocated Armstrong near the hospital's main entrance. See id.\\n\\nThree police officers approached Armstrong, who responded by\\n\\n\\\"wrapping himself around a four-by-four post that was supporting\\n\\na nearby stop sign.\\\" Id. The officers attempted to pry\\n\\nArmstrong's arms and legs loose but were unsuccessful. See id.\\n\\nOne of the officers then warned Armstrong that he would be tased\\n\\nif he did not let go of the post. See id. at 897. Armstrong did\\n\\nnot comply, and the officer proceeded to tase him five times in\\n\\ndrive-stun mode, over a span of approximately two minutes. See\\n\\nid. Even though Armstrong continued resisting, he was pried loose\\n\\n\\n - 16 -\\n\\ffrom the post. See id. A struggle ensued, resulting in\\n\\nArmstrong's demise. See id. at 897-98.\\n\\n Although the court found that a jury could find the\\n\\nofficers had used excessive force, see id. at 906, it nonetheless\\n\\naffirmed summary judgment in favor of the defendants. The court\\n\\nreasoned that even though its finding that the officers had\\n\\nviolated Armstrong's Fourth Amendment rights was supported by\\n\\nprecedent, the law \\\"was not so settled [as of April 2011] such\\n\\nthat 'every reasonable official would have understood that' tasing\\n\\nArmstrong was unconstitutional\\\" under the circumstances. Id. at\\n\\n908 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per\\n\\ncuriam)).5\\n\\n The Fourth Circuit's conclusion in Estate of Armstrong\\n\\n— that the use of a Taser in drive-stun mode against a noncompliant\\n\\nand resisting individual was not clearly unconstitutional as of\\n\\n2011 — is not an outlier. Prior to Cummings's encounter with Gray,\\n\\nseveral other courts of appeals had found the use of a Taser\\n\\nreasonable in situations involving subjects who acted with a level\\n\\nof resistance analogous to that displayed by Gray. See, e.g.,\\n\\nHagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 507 (6th\\n\\nCir. 2012) (granting qualified immunity for use of Taser in drive-\\n\\n\\n\\n\\n 5\\n We note that Estate of Armstrong was decided in 2016 and,\\nthus, Cummings did not have the benefit of the Fourth Circuit's\\ndecision at the time of the incident sub judice.\\n\\n\\n - 17 -\\n\\fstun mode in 2007 when plaintiff \\\"refused to be handcuffed,\\\" \\\"lay\\n\\ndown on the pavement and locked his arms tightly under his body,\\n\\nkicking his feet and continuing to scream\\\"); Draper v. Reynolds,\\n\\n369 F.3d 1270, 1278 (11th Cir. 2004) (finding single use of Taser\\n\\nin 2001 reasonable when plaintiff \\\"used profanity, moved around\\n\\nand paced in agitation,\\\" and \\\"repeatedly refused to comply with\\n\\n[the officer]'s verbal commands\\\" during traffic stop). Thus, an\\n\\nobjectively reasonable officer in Cummings's place and stead could\\n\\nreasonably have believed, in 2013, that the use of a Taser was\\n\\ngenerally permissible when a subject refuses to be handcuffed.\\n\\n Even so, the level of force that is constitutionally\\n\\npermissible in dealing with a mentally ill person \\\"differs both in\\n\\ndegree and in kind from the use of force that would be justified\\n\\nagainst a person who has committed a crime or who poses a threat\\n\\nto the community.\\\" Bryan v. MacPherson, 630 F.3d 805, 829 (9th\\n\\nCir. 2010). Consequently, a subject's mental illness is a factor\\n\\nthat a police officer must take into account in determining what\\n\\ndegree of force, if any, is appropriate. See Estate of Armstrong,\\n\\n810 F.3d at 900; Champion v. Outlook Nashville, Inc., 380 F.3d\\n\\n893, 904 (6th Cir. 2004). Here, however, the only thing that\\n\\nCummings knew about Gray's mental health was that she had been\\n\\ninvoluntarily committed under section 12; he did not know whether\\n\\nGray had been deemed a danger to others or only to herself. Given\\n\\nthe skimpiness of this information, we think that an objectively\\n\\n\\n - 18 -\\n\\freasonable police officer, standing in Cummings's shoes, would\\n\\nhave had to be prepared for the worst.\\n\\n Based on the body of available case law, we hold that an\\n\\nobjectively reasonable police officer in May of 2013 could have\\n\\nconcluded that a single use of the Taser in drive-stun mode to\\n\\nquell a nonviolent, mentally ill individual who was resisting\\n\\narrest, did not violate the Fourth Amendment. Even if such a\\n\\nconclusion was constitutionally mistaken — as a jury could find on\\n\\nthe facts of this case — Cummings is shielded by qualified\\n\\nimmunity.\\n\\n Gray demurs. She identifies two of our precedents and\\n\\nposits that — whether viewed singly or in combination — they evince\\n\\nthe clearly established nature of her right to be free from tasing.\\n\\nBoth precedents are inapposite.\\n\\n The case on which Gray relies most heavily is Parker v.\\n\\nGerrish, 547 F.3d 1 (1st Cir. 2008). There, the plaintiff had\\n\\nbeen stopped on suspicion of driving while intoxicated. After the\\n\\nplaintiff failed several sobriety tests, the officer tried to\\n\\narrest him. See id. at 3-4. When the plaintiff resisted, the\\n\\nofficer drew his Taser and ordered the plaintiff to turn around\\n\\nand place his hands behind his back. See id. at 4. The plaintiff\\n\\ncomplied but clasped his right wrist with his left hand. See id.\\n\\nAnother officer approached and cuffed the plaintiff's left wrist.\\n\\nSee id. There was substantial dispute about what happened next,\\n\\n\\n - 19 -\\n\\fbut according to the plaintiff's account (to which the court was\\n\\nrequired to defer in the posture of the case), he released his\\n\\nright wrist, yet was tased anyway. See id. at 4-5. On these\\n\\nfacts, we held that the police officer could be found to have\\n\\nviolated the Fourth Amendment by tasing an unarmed suspect who, in\\n\\nthe course of an arrest, \\\"present[ed] no significant 'active\\n\\nresistance' or threat\\\"6 at the time of the tasing. Id. at 10-11.\\n\\n The case at hand is a horse of a quite different hue.\\n\\nThere is no indication here that Gray, despite ample opportunity\\n\\nto do so, ever complied with Cummings's command to put her hands\\n\\nbehind her back. Even when Cummings warned her that she would be\\n\\ntased, she did not comply but, rather, continued cursing and told\\n\\nhim to \\\"do it.\\\"\\n\\n The second case upon which Gray relies is Ciolino v.\\n\\nGikas, 861 F.3d 296 (1st Cir. 2017), which involved events\\n\\noccurring in 2013. There, a police officer grabbed the plaintiff\\n\\nin a crowded street and forced him to the ground without giving\\n\\nhim any warning. See id. at 299-300. We held that the jury could\\n\\nfind that although the plaintiff had \\\"disobeyed a police order,\\\"\\n\\nhe \\\"was not given a chance to submit peacefully to arrest before\\n\\nsignificant force was used to subdue him\\\" and, therefore, \\\"an\\n\\n\\n\\n\\n 6 We had no occasion in Parker to mull the implications of a\\nqualified immunity defense. There, the officer waived any such\\ndefense. See 547 F.3d at 13.\\n\\n\\n - 20 -\\n\\f'objectively reasonable police officer' would have taken a more\\n\\nmeasured approach.\\\" Id. at 304 (quoting Raiche v. Pietroski, 623\\n\\nF.3d 30, 39 (1st Cir. 2010)).\\n\\n Once again, the case at hand is readily distinguishable.\\n\\nCummings repeatedly told Gray that she needed to return to the\\n\\nhospital, and she adamantly refused to obey. What is more, he\\n\\nwarned her that he would use his Taser if she remained\\n\\nintransigent, yet she defied the warning. Thus — unlike the\\n\\nplaintiff in Ciolino — Gray was afforded an adequate opportunity\\n\\nto submit to Cummings's authority before she was tased.\\n\\n Gray cites a number of other cases in support of her\\n\\nargument that her resistance was \\\"passive\\\" rather than \\\"active\\\"\\n\\nand, thus, did not justify the use of the Taser. This argument is\\n\\ndeeply flawed. Labels such as \\\"passive\\\" and \\\"active\\\" are\\n\\ngeneralizations and cannot serve as substitutes for a careful\\n\\nanalysis of the facts of a particular case. In point of fact, the\\n\\nSupreme Court — in an excessive force case — recently cautioned\\n\\nagainst \\\"defin[ing] the clearly established right at a high level\\n\\nof generality.\\\" City of Escondido, 139 S. Ct. at 503. There, the\\n\\nCourt reversed a denial of qualified immunity sought by an officer\\n\\nwho had tackled a man after he had closed the door to a dwelling\\n\\ndespite being instructed not to do so and \\\"tried to brush past\\\"\\n\\nthe officer. Id. at 502. The Court criticized the Ninth Circuit\\n\\nfor relying on \\\"case law [that] involved police force against\\n\\n\\n - 21 -\\n\\findividuals engaged in passive resistance\\\" without making any\\n\\n\\\"effort to explain how that case law prohibited [the officer]'s\\n\\nactions in this case.\\\" Id. at 503-04 (emphasis in original). And\\n\\nin all events, respectable authority suggests that refusing to be\\n\\nhandcuffed constitutes active resistance and may justify the use\\n\\nof a Taser. See Hagans, 695 F.3d at 509 (collecting cases).\\n\\n We add, moreover, that several of the cases cited by\\n\\nGray involve deployment of a Taser subsequent to an initial Taser\\n\\nshock. See, e.g., Meyers v. Baltimore County, 713 F.3d 723, 733-\\n\\n34 (4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 F.3d 856, 859-\\n\\n63 (7th Cir. 2010). Nothing of that sort happened here.7\\n\\n In the last analysis, Gray does not cite any case,\\n\\ndecided before her encounter with Cummings, that arose out of the\\n\\nuse of a Taser on facts fairly comparable to the facts at hand.\\n\\nIn the absence of either controlling authority or a consensus of\\n\\n\\n\\n\\n 7 In furtherance of her argument that an objectively\\nreasonable officer standing in Cummings's shoes would have known\\nthat the degree of force used was unreasonable, Gray argues in her\\nreply brief that the Town has a policy against tasing someone\\n\\\"known to be suffering from severe mental illness.\\\" This argument\\nis doubly waived: first, it was not advanced in the district\\ncourt, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st\\nCir. 1991) (\\\"It is hornbook law that theories not raised squarely\\nin the district court cannot be surfaced for the first time on\\nappeal.\\\"); and second, it was not advanced in Gray's opening brief\\nin this court, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86\\n(1st Cir. 1990) (\\\"[B]ecause the argument . . . surfac[ed] only in\\n[appellant's] reply brief, it has been waived.\\\").\\n\\n\\n - 22 -\\n\\fpersuasive authority to the contrary, we conclude that Cummings\\n\\nwas entitled to qualified immunity.\\n\\n As a fallback, Gray argues that the doctrine of qualified\\n\\nimmunity, as expounded by the Supreme Court, should be modified or\\n\\noverruled. Gray did not raise this argument in the district court\\n\\nand, thus, cannot advance it here. See Teamsters Union, Local No.\\n\\n59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (\\\"If\\n\\nany principle is settled in this circuit, it is that, absent the\\n\\nmost extraordinary circumstances, legal theories not raised\\n\\nsquarely in the lower court cannot be broached for the first time\\n\\non appeal.\\\").\\n\\n 2. Town of Athol. In addition to her section 1983 claim\\n\\nagainst Cummings, Gray makes a section 1983 failure-to-train claim\\n\\nagainst the Town. She alleges that her Fourth Amendment rights\\n\\nwere violated by the Town's deficient training of its police\\n\\nofficers (including Cummings) with respect to proper protocols for\\n\\ninteracting with persons suffering from mental illness. Gray's\\n\\nevidence, though, falls well short of making out a failure-to-\\n\\ntrain claim against the Town.\\n\\n We cut directly to the chase. \\\"Triggering municipal\\n\\nliability on a claim of failure to train requires a showing that\\n\\nmunicipal decisionmakers either knew or should have known that\\n\\ntraining was inadequate but nonetheless exhibited deliberate\\n\\nindifference to the unconstitutional effects of those\\n\\n\\n - 23 -\\n\\finadequacies.\\\" Haley v. City of Boston, 657 F.3d 39, 52 (1st Cir.\\n\\n2011). A plaintiff typically must show a \\\"pattern of similar\\n\\nconstitutional violations by untrained employees . . . to\\n\\ndemonstrate deliberate indifference for purposes of failure to\\n\\ntrain.\\\" Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bd.\\n\\nof Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).\\n\\nHere, however, Gray has made no such showing.\\n\\n In an effort to close this gap, Gray offers expert\\n\\ntestimony about appropriate police practices for interacting with\\n\\npersons with disabilities. Building on this foundation, she\\n\\ninsists that \\\"coupled with the facts of the encounter,\\\" such\\n\\nevidence \\\"create[s] questions of material fact as to whether the\\n\\nTown failed to properly train Cummings.\\\" In our view, these\\n\\nassertions are insufficient to support a failure-to-train claim.\\n\\nIt is not enough to show that the Town's training regimen was\\n\\nfaulty; Gray must also show that the Town knew or had reason to\\n\\nbelieve that such a regimen had unconstitutional effects. Gray\\n\\nhas tendered no evidence of past violations sufficient to put the\\n\\nTown on notice of such effects. Given this yawning gap in her\\n\\nproof, Gray has not made out a genuine issue of material fact as\\n\\nto whether the Town was deliberately indifferent to the risk of\\n\\nthe alleged constitutional violation. Consequently, her failure-\\n\\nto-train claim founders. See id. at 72; Hill v. Walsh, 884 F.3d\\n\\n16, 24 (1st Cir. 2018).\\n\\n\\n - 24 -\\n\\f B. The State-Law Claims.\\n\\n Gray's supplemental state-law claims need not detain us.\\n\\nGray concedes that the assault and battery and MCRA claims \\\"rise\\n\\nand fall with . . . [her] § 1983 claim.\\\" This concession, coupled\\n\\nwith Gray's failure to offer any developed argumentation with\\n\\nrespect to these claims, ends our inquiry. See Torres-Arroyo v.\\n\\nRullán, 436 F.3d 1, 7 (1st Cir. 2006) (\\\"Gauzy generalizations are\\n\\nmanifestly insufficient to preserve an issue for appellate\\n\\nreview.\\\"). We deem waived any claim of error related to the\\n\\ndisposition of Gray's assault and battery and MCRA claims.\\n\\n The magistrate judge also granted summary judgment on\\n\\nGray's malicious prosecution claim. On appeal, Gray does not\\n\\nchallenge this ruling. Consequently, we deem the malicious\\n\\nprosecution claim abandoned. See United States v. Zannino, 895\\n\\nF.2d 1, 17 (1st Cir. 1990) (explaining that \\\"issues adverted to in\\n\\na perfunctory manner, unaccompanied by some effort at developed\\n\\nargumentation, are deemed waived\\\").\\n\\n C. The ADA Claim.\\n\\n There is one last hill to climb: Gray's claim against\\n\\nthe Town under the ADA. Some background is helpful.\\n\\n Congress enacted the ADA \\\"to provide a clear and\\n\\ncomprehensive national mandate for the elimination of\\n\\ndiscrimination against individuals with disabilities.\\\" 42 U.S.C.\\n\\n§ 12101(b)(1). Title I proscribes disability-related\\n\\n\\n - 25 -\\n\\fdiscrimination in employment, see id. § 12112, and Title III\\n\\nproscribes disability-related discrimination in the provision of\\n\\npublic accommodations (such as hotels, restaurants, and theaters),\\n\\nsee id. §§ 12182, 12184. Neither of these titles is implicated\\n\\nhere.\\n\\n Title II broadly provides that \\\"no qualified individual\\n\\nwith a disability shall, by reason of such disability, be excluded\\n\\nfrom participation in or be denied the benefits of the services,\\n\\nprograms, or activities of a public entity, or be subjected to\\n\\ndiscrimination by any such entity.\\\" Id. § 12132. Gray's ADA claim\\n\\nagainst the Town is rooted in this Title.\\n\\n To establish a violation of Title II, a plaintiff must\\n\\nshow:\\n\\n (1) that [s]he is a qualified individual with\\n a disability; (2) that [s]he was either\\n excluded from participation in or denied the\\n benefits of some public entity's services,\\n programs, or activities or was otherwise\\n discriminated against; and (3) that such\\n exclusion, denial of benefits, or\\n discrimination was by reason of the\\n plaintiff's disability.\\n\\nBuchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting\\n\\nParker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.\\n\\n2000)). A \\\"qualified individual with a disability\\\" is\\n\\n an individual with a disability who, with or\\n without reasonable modifications to rules,\\n policies, or practices, the removal of\\n architectural, communication, or\\n transportation barriers, or the provision of\\n\\n\\n - 26 -\\n\\f auxiliary aids and services, meets the\\n essential eligibility requirements for the\\n receipt of services or the participation in\\n programs or activities provided by a public\\n entity.\\n\\n42 U.S.C. § 12131(2). In turn, the term \\\"public entity\\\" includes\\n\\n\\\"any State or local government\\\" as well as \\\"any department, agency,\\n\\nspecial purpose district, or other instrumentality of a State or\\n\\nStates or local government.\\\" Id. § 12131(1).\\n\\n The Town does not gainsay either that Gray is a qualified\\n\\nperson with a disability or that the Town is a public entity.\\n\\nThus, the focal point of our inquiry is whether, during Gray's\\n\\nencounter with Cummings, she was \\\"denied the benefits of [the\\n\\nTown's] services, programs, or activities or was otherwise\\n\\ndiscriminated against . . . by reason of [her] disability.\\\"\\n\\nBuchanan, 469 F.3d at 170-71.\\n\\n Courts have identified two general theories describing\\n\\nways in which a police officer may violate the ADA in executing an\\n\\narrest. The first such theory (which we shall call the \\\"effects\\\"\\n\\ntheory) holds that a violation may be found when \\\"police wrongly\\n\\narrested someone with a disability because they misperceived the\\n\\neffects of that disability as criminal activity.\\\" Gohier v.\\n\\nEnright, 186 F.3d 1216, 1220 (10th Cir. 1999). The second such\\n\\ntheory (which we shall call the \\\"accommodation\\\" theory) holds that\\n\\na violation may be found when police officers \\\"properly\\n\\ninvestigated and arrested a person with a disability for a crime\\n\\n\\n - 27 -\\n\\funrelated to that disability, [but] they failed to reasonably\\n\\naccommodate the person's disability in the course of investigation\\n\\nor arrest, causing the person to suffer greater injury or indignity\\n\\nin that process than other arrestees.\\\" Id. at 1220-21. Before\\n\\nus, Gray advances arguments under both theories.8 With respect to\\n\\nthe \\\"effects\\\" theory, Gray argues that the criminal charges filed\\n\\nagainst her are an indication that Cummings misperceived her\\n\\nfailure to follow his commands as a crime rather than a symptom of\\n\\nher disability. With respect to the \\\"accommodation\\\" theory, Gray\\n\\nargues that Cummings should have accommodated her disability by\\n\\n\\\"employ[ing] . . . time, patience, nonthreatening communication,\\n\\nmonitoring from a distance, and contacting and waiting for\\n\\nassistance such as an ambulance or a mental health care\\n\\nprofessional.\\\"\\n\\n In mounting our inquiry, we start with the\\n\\nuncontroversial premise that the services, programs, and\\n\\nactivities of a municipal police department are generally subject\\n\\nto the provisions of Title II of the ADA. See, e.g., Haberle v.\\n\\n\\n\\n\\n 8 The magistrate judge concluded that \\\"Gray's complaint very\\nclearly proceeds solely on the basis of the second theory of\\nliability — that is, an alleged failure to reasonably accommodate.\\\"\\nThis conclusion seems to overlook the allegation in Gray's amended\\ncomplaint that the Town \\\"brought criminal charges against [Gray]\\nwithout taking her mental illness into account.\\\" Even so, any\\nerror was harmless: the magistrate judge prudently considered the\\nmerits of Gray's arguments under both the \\\"effects\\\" theory and the\\n\\\"accommodation\\\" theory.\\n\\n\\n - 28 -\\n\\fTroxel, 885 F.3d 170, 179-80 (3d Cir. 2018); Gorman v. Bartch, 152\\n\\nF.3d 907, 912 (8th Cir. 1998). Yet, three questions loom that are\\n\\nmatters of first impression in this circuit:\\n\\n Does Title II apply to ad hoc police encounters\\n\\n with members of the public during investigations\\n\\n and arrests, and if so, to what extent?\\n\\n Assuming that Title II applies to the encounter\\n\\n that occurred here, may a public entity be held\\n\\n liable under Title II for a line employee's actions9\\n\\n on a theory of respondeat superior?\\n\\n Is proof of a defendant's deliberate indifference\\n\\n (as opposed to discriminatory animus) sufficient to\\n\\n support a plaintiff's claim for damages under Title\\n\\n II?\\n\\nWe are reluctant to plunge headlong into these murky waters. As\\n\\nwe explain below, the answers to these questions are less than\\n\\ncertain, and adjudicating Gray's ADA claim against the Town does\\n\\nnot require us to run this gauntlet.\\n\\n The first question asks whether and to what extent Title\\n\\nII of the ADA applies to ad hoc police encounters. The Fifth\\n\\nCircuit has held that \\\"Title II does not apply to an officer's on-\\n\\nthe-street responses to reported disturbances or other similar\\n\\n\\n 9 We use the term \\\"line employee\\\" to describe an employee who\\nis not involved in policymaking.\\n\\n\\n - 29 -\\n\\fincidents, whether or not those calls involve subjects with mental\\n\\ndisabilities, prior to the officer's securing the scene and\\n\\nensuring that there is no threat to human life.\\\" Hainze v.\\n\\nRichards, 207 F.3d 795, 801 (5th Cir. 2000). Other circuits,\\n\\nthough, have charted a different course, holding that Title II\\n\\napplies without exception to ad hoc police encounters. See, e.g.,\\n\\nHaberle, 885 F.3d at 180 (concluding that \\\"police officers may\\n\\nviolate the ADA when making an arrest by failing to provide\\n\\nreasonable accommodations for a qualified arrestee's disability\\\");\\n\\nBircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)\\n\\n(explaining that \\\"Title II prohibits discrimination by a public\\n\\nentity by reason of [plaintiff]'s disability\\\" during\\n\\ninvestigations and arrests); see also Gohier, 186 F.3d at 1221\\n\\n(stating that \\\"a broad rule categorically excluding arrests from\\n\\nthe scope of Title II . . . is not the law\\\"). Under this approach,\\n\\nexigent circumstances attendant to a police officer's decisions\\n\\nduring an ad hoc encounter simply weigh in the balance when\\n\\nevaluating the reasonableness of a prospective ADA accommodation.\\n\\nSee Haberle, 885 F.3d at 181 n.11; Bircoll, 480 F.3d at 1085-86.10\\n\\n\\n 10 The Ninth Circuit reached the same conclusion in Sheehan\\nv. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir.\\n2014). The Supreme Court granted certiorari in Sheehan in order\\nto resolve whether Title II of the ADA \\\"requires law enforcement\\nofficers to provide accommodations to an armed, violent, and\\nmentally ill suspect in the course of bringing the suspect into\\ncustody.\\\" City & County of San Francisco v. Sheehan, 135 S. Ct.\\n1765, 1772 (2015). The Court later concluded that certiorari on\\n\\n\\n - 30 -\\n\\fWhile no circuit has found Title II of the ADA wholly inapplicable\\n\\nto ad hoc police encounters, the differences in approach indicate\\n\\nto us that we should tread cautiously. For present purposes, it\\n\\nis sufficient for us to assume, favorably to Gray, that Title II\\n\\nof the ADA applies to ad hoc police encounters (such as the\\n\\nencounter here) and that exigent circumstances may shed light on\\n\\nthe reasonableness of an officer's actions.\\n\\n The second question asks whether a public entity can be\\n\\nvicariously liable for money damages under Title II of the ADA\\n\\nbased on the conduct of a line employee. This question arises\\n\\nbecause, in Gebser v. Lago Vista Independent School District, 524\\n\\nU.S. 274 (1998), the Supreme Court held that a school district\\n\\ncould not be held liable under Title IX of the Education Amendments\\n\\nof 1972 \\\"unless an official who at a minimum has authority to\\n\\naddress the alleged discrimination and to institute corrective\\n\\nmeasures on the [district]'s behalf has actual knowledge of\\n\\ndiscrimination.\\\" Id. at 290. Whether the rationale of Gebser\\n\\nshould be extended to insulate public entities from liability under\\n\\nTitle II of the ADA on a theory of respondeat superior is an open\\n\\nquestion. Compare, e.g., Duvall v. County of Kitsap, 260 F.3d\\n\\n1124, 1141 (9th Cir. 2001) (stating that \\\"public entity is liable\\n\\n\\n\\n\\nthis question had been improvidently granted. See id. at 1774.\\nThe Court took pains to note, though, that whether Title II\\n\\\"applies to arrests is an important question.\\\" Id. at 1773.\\n\\n\\n - 31 -\\n\\ffor the vicarious acts of its employees\\\" under Title II), with,\\n\\ne.g., Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348-\\n\\n49 (11th Cir. 2012) (finding no respondeat superior liability under\\n\\nsection 504 of Rehabilitation Act in light of Gebser).11 For\\n\\npresent purposes, it is sufficient for us to assume, favorably to\\n\\nGray, that the Town could be held vicariously liable under Title\\n\\nII for Cummings's actions.\\n\\n The third question asks whether a showing of deliberate\\n\\nindifference is enough to support recovery of money damages under\\n\\nTitle II. Since a plaintiff must show \\\"intentional discrimination\\\"\\n\\non the part of the public entity to be eligible for damages on a\\n\\nTitle II claim, Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126\\n\\n(1st Cir. 2003), some uncertainty exists as to whether \\\"deliberate\\n\\nindifference\\\" is the functional equivalent of \\\"intentional\\n\\ndiscrimination.\\\" Several of our sister circuits have held that a\\n\\nshowing of deliberate indifference may suffice to prove this\\n\\nelement. See, e.g., Haberle, 885 F.3d at 181; Duvall, 260 F.3d at\\n\\n1138. But the question is open in this circuit, and we have stated\\n\\nthat, \\\"under Title II, non-economic damages are only available\\n\\nwhen there is evidence 'of economic harm or animus toward the\\n\\n\\n\\n\\n 11 As a general matter, Title II of the ADA \\\"is to be\\ninterpreted consistently with\\\" section 504 of the Rehabilitation\\nAct, which prohibits disability discrimination by entities\\nreceiving federal financial assistance. Theriault v. Flynn, 162\\nF.3d 46, 48 n.3 (1st Cir. 1998).\\n\\n\\n - 32 -\\n\\fdisabled.'\\\" Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st\\n\\nCir. 2006) (quoting Nieves-Márquez, 353 F.3d at 126-27). This\\n\\ncase does not require us to parse whether our use of the word\\n\\n\\\"animus\\\" demands more than a showing of deliberate indifference,\\n\\ncf. S.H. ex. rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d\\n\\n248, 263 (3d Cir. 2013) (interpreting Nieves-Márquez as requiring\\n\\n\\\"a higher showing of intentional discrimination than deliberate\\n\\nindifference\\\"), particularly since the Town has not advanced such\\n\\nan argument. For present purposes, it is sufficient for us to\\n\\nassume, favorably to Gray, that deliberate indifference is the\\n\\nappropriate standard.\\n\\n Adjudicating Grays's ADA claim against the Town does not\\n\\nrequire us to run the gauntlet of these questions. After all, we\\n\\nhave admonished before — and today reaffirm — that \\\"courts should\\n\\nnot rush to decide unsettled legal issues that can easily be\\n\\navoided.\\\" United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir.\\n\\n2013). Consistent with this prudential principle, we decline to\\n\\nanswer any of the three questions identified above. No matter how\\n\\nthe loaf is sliced, Gray was obliged at a bare minimum to make out\\n\\na genuine issue of material fact as to Cummings's deliberate\\n\\nindifference to the risk of an ADA violation.\\n\\n In this context, such a showing requires proof that the\\n\\ndefendant knew that an ADA-protected right was likely to be\\n\\nabridged, yet neglected to take available preventative action\\n\\n\\n - 33 -\\n\\fnotwithstanding such knowledge. See Haberle, 885 F.3d at 181;\\n\\nDuvall, 260 F.3d at 1139-40. In other words, to hold the Town\\n\\nvicariously liable under Title II based on Cummings's deliberate\\n\\nindifference, Gray would have to show that Cummings knew that Gray\\n\\nhad a disability that required him to act differently than he would\\n\\notherwise have acted, yet failed to adjust his behavior\\n\\naccordingly. See, e.g., Crane v. Lifemark Hosps., Inc., 898 F.3d\\n\\n1130, 1136 (11th Cir. 2018); Duvall, 260 F.3d at 1140. Thus, to\\n\\nprevail on her version of the \\\"effects\\\" theory, Gray would at least\\n\\nhave to show that Cummings knew that her failure to follow his\\n\\norders was a symptom of her mental illness rather than deliberate\\n\\ndisobedience (warranting criminal charges). Similarly, to prevail\\n\\non her version of the \\\"accommodation\\\" theory, Gray would at least\\n\\nhave to show that Cummings knew that there was a reasonable\\n\\naccommodation, which he was required to provide. Gray has not\\n\\nmade either such showing.\\n\\n To be sure, it is undisputed that Cummings knew that\\n\\nGray was a section 12 patient and, thus, had a disability\\n\\n(specifically, that she suffered from an unspecified mental\\n\\nillness). See Mass. Gen. Laws ch. 123, § 12. But Gray has not\\n\\nshown that Cummings had any particularized knowledge about the\\n\\nnature or degree of Gray's disability. As we have explained, see\\n\\nsupra Part II.A, the fact that Gray was a section 12 patient served\\n\\nonly to put Cummings on notice that she had been deemed a danger\\n\\n\\n - 34 -\\n\\fto herself or to others. There is insufficient evidence to suggest\\n\\nthat Cummings knew either that Gray suffered from bipolar disorder\\n\\nor that she was experiencing a manic episode. Without such\\n\\nparticularized knowledge, Cummings had no way of gauging whether\\n\\nthe conduct that appeared unlawful to him was likely to be a\\n\\nmanifestation of the symptoms of Gray's mental illness. So, too,\\n\\nwithout such particularized knowledge, Cummings had no way of\\n\\ngauging what specific accommodation, if any, might have been\\n\\nreasonable under the circumstances.\\n\\n Of course, Gray has adduced evidence that national\\n\\npolice standards provide protocols for dealing with individuals\\n\\nsuffering from any type of mental illness. Critically, though,\\n\\nGray has not adduced any evidence showing that Cummings knew of\\n\\nthe existence of such standards.12 Consequently, Cummings had no\\n\\nway of knowing that an ADA-protected right was likely to be\\n\\njeopardized by his actions.\\n\\n\\n\\n\\n 12For the sake of completeness, we again note that the Town\\nhas a policy, which states that Tasers should not be used against\\n\\\"[t]hose known to be suffering from severe mental illness.\\\" Based\\non this policy, it might be argued that refraining from using a\\nTaser against Gray would have been a reasonable accommodation for\\nher disability. It might also be argued that, in tasing Gray in\\ncontravention of the policy, Cummings exhibited deliberate\\nindifference. The rub, though, is that Gray has not advanced any\\nsuch argument either below or in her appellate briefing. \\\"In the\\nabsence of extraordinary circumstances, none of which are apparent\\nhere, we have regularly declined to consider points which were not\\nseasonably advanced below.\\\" Clauson v. Smith, 823 F.2d 660, 666\\n(1st Cir. 1987).\\n\\n\\n - 35 -\\n\\f Nor were Cummings's actions so plainly antithetic to the\\n\\nADA as to obviate the knowledge requirement. See Haberle, 885\\n\\nF.3d at 182. The record makes manifest that Cummings tried to\\n\\ntalk to Gray before physically engaging with her, telling her\\n\\nrepeatedly that she needed to return to the hospital. He followed\\n\\nher from a distance and did not make physical contact with her\\n\\nuntil she reversed direction and moved toward him. And in the\\n\\nensuing encounter, he warned her that she would be tased if she\\n\\ndid not put her hands behind her back and gave her several chances\\n\\nto comply before using the Taser (in the least intrusive mode\\n\\navailable).\\n\\n Gray has also offered evidence that in failing to wait\\n\\nfor backup or to call an ambulance prior to approaching her,\\n\\nCummings fell short of nationally recognized police standards.\\n\\nBut as we have said, she has not shown that Cummings knew of such\\n\\nstandards; and in all events, \\\"falling below national standards\\n\\ndoes not, in and of itself, make the risk of an ADA violation\\\" so\\n\\nobvious as to eliminate the knowledge requirement. Id.\\n\\n By the same token, Gray has not offered evidence\\n\\nsufficient to sustain a claim of direct liability against the Town.\\n\\nTo make out such a claim, Gray could show that the Town's \\\"existing\\n\\npolicies caused a failure to 'adequately respond to a pattern of\\n\\npast occurrences of injuries like [hers].'\\\" Id. at 181 (quoting\\n\\nBeers-Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001)). Or\\n\\n\\n - 36 -\\n\\fshe could show \\\"that the risk of . . . cognizable harm was 'so\\n\\ngreat and so obvious'\\\" as to override the requirement of\\n\\ndemonstrating a pattern. Id. (quoting Beers-Capitol, 256 F.3d at\\n\\n136-37). Gray has not made either showing: she has proffered no\\n\\nevidence of a pattern, nor has she shown an obvious risk of harm.\\n\\nAt most, she has put forth evidence that the Town's policies failed\\n\\nto comply with national standards. But such a failure — without\\n\\nmore — does not render the risk of harm so great and obvious as to\\n\\nexcuse a failure to satisfy the pattern requirement. See id. at\\n\\n182.\\n\\n To this point, we have explained why Gray's claim for\\n\\nmoney damages is impuissant. But Gray's amended complaint also\\n\\nprays for injunctive relief. This form of redress, too, is beyond\\n\\nGray's reach. Past injury, in and of itself, \\\"is an insufficient\\n\\npredicate for equitable relief.\\\" Am. Postal Workers Union v.\\n\\nFrank, 968 F.2d 1373, 1376 (1st Cir. 1992). To have standing to\\n\\npursue injunctive relief, a plaintiff must \\\"establish a real and\\n\\nimmediate threat\\\" resulting in \\\"a sufficient likelihood that [s]he\\n\\nwill again be wronged in a similar way.\\\" Id. (quoting Los Angeles\\n\\nv. Lyons, 461 U.S. 95, 109, 111 (1983)); see Updike v. Multnomah\\n\\nCounty, 870 F.3d 939, 948 (9th Cir. 2017), cert. denied sub nom.\\n\\nMultnomah County v. Updike, 139 S. Ct. 55 (2018) (finding that ADA\\n\\nplaintiff \\\"lack[ed] standing to pursue his claims for injunctive\\n\\nrelief\\\"); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st\\n\\n\\n - 37 -\\n\\fCir. 2003) (requiring \\\"real and immediate threat of ongoing harm\\\"\\n\\nfor injunctive relief in ADA case). Gray cannot clear this hurdle.\\n\\nWhen all is said and done, it is not enough for Gray to show that\\n\\nbecause she has bipolar disorder, she is likely to encounter the\\n\\npolice again. She must show that she is likely to be tased once\\n\\nmore, see Lyons, 461 U.S. at 105-06, and she has not managed any\\n\\nsuch showing.\\n\\n Because there is no remedy available to Gray under Title\\n\\nII of the ADA, it follows that the district court did not err in\\n\\nentering summary judgment for the Town on Gray's ADA claim. See\\n\\nCarmona-Rivera, 464 F.3d at 18 (affirming summary judgment for\\n\\ndefendants where no remedy was available to plaintiff on ADA\\n\\nclaim).\\n\\nIII. CONCLUSION\\n\\n We need go no further. We add only that this is a hard\\n\\ncase — a case that is made all the more difficult because of two\\n\\ncompeting concerns: our concern for the rights of the disabled\\n\\nand our concern that the police not be unduly hampered in the\\n\\nperformance of their important duties. In the end, though, we\\n\\nthink that the protections provided by Title II of the ADA can be\\n\\nharmonized with the doctrines of excessive force and qualified\\n\\nimmunity, as explicated by the Supreme Court, to achieve a result\\n\\nthat gives each of these competing concerns their due. We think\\n\\nthat our ruling today — which establishes in this circuit that a\\n\\n\\n - 38 -\\n\\fjury could supportably find the use of a Taser to quell a\\n\\nnonviolent, mentally ill person who is resisting arrest to be\\n\\nexcessive force — satisfies this exacting standard.\\n\\n\\n\\nAffirmed.\\n\\n\\n\\n\\n - 39 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":479,"cells":{"id":{"kind":"number","value":4593292,"string":"4,593,292"},"name":{"kind":"string","value":"EASTHAMPTON CONGREGATIONAL CHURCH, Plaintiff, Appellee, v. CHURCH MUTUAL INSURANCE COMPANY, Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"Easthampton Congregational v. Church Mutual Insurance Co."},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"18-1881P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Souter, Stahl\", \"parties\": \"\", \"opinions\": [{\"author\": \"STAHL, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-1881\\n\\n EASTHAMPTON CONGREGATIONAL CHURCH,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n CHURCH MUTUAL INSURANCE COMPANY,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Katherine A. Robertson, Magistrate Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter, Associate Justice,*\\n and Stahl, Circuit Judge.\\n\\n\\n John Egan, with whom Rubin and Rudman, LLP was on brief, for\\nappellant.\\n William P. Rose, with whom Melick & Porter LLP was on brief,\\nfor appellee.\\n\\n\\n February 22, 2019\\n\\n\\n\\n\\n * Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f STAHL, Circuit Judge. This appeal requires the\\n\\ninterpretation of words and terms in an insurance policy.\\n\\nPlaintiff-Appellee Easthampton Congregational Church (the\\n\\n\\\"Church\\\") had a property insurance policy (the \\\"Policy\\\") with\\n\\nDefendant-Appellant Church Mutual Insurance Company (the\\n\\n\\\"Insurance Company\\\"). On April 25, 2016, the ceiling in one\\n\\nsection of the Church collapsed. The Church filed a claim pursuant\\n\\nto the Policy, which the Insurance Company denied. The Church\\n\\nthen filed suit, seeking a declaratory judgment that the claim was\\n\\ncovered. On cross-motions for summary judgment, the district court\\n\\nruled for the Church. Noting that the Policy did not define the\\n\\nword \\\"decay,\\\" the court adopted a dictionary definition of the\\n\\nword and used that definition to conclude that the Policy provided\\n\\ncoverage. We affirm, albeit for different reasons.\\n\\n I. Factual Background\\n\\n A. The Insurance Policy\\n\\n The Policy was in effect at the time of the collapse and\\n\\ncarries a coverage limit of $5,353,000. The parties agree that\\n\\nthe damaged section of the Church, Fellowship Hall, \\\"is among the\\n\\n[covered] premises described in the [P]olicy's Declarations Page.\\\"\\n\\n The coverage provisions are governed by two primary\\n\\nforms. The first is the \\\"Building and Personal Property Coverage\\n\\nForm,\\\" which covers \\\"direct physical loss of or damage to Covered\\n\\nProperty . . . caused by or resulting from any Covered Cause of\\n\\n\\n - 2 -\\n\\fLoss.\\\" The second is the \\\"Causes of Loss - Special Form.\\\" That\\n\\nform sets forth various exclusions and limitations in Sections B\\n\\nand C, respectively.\\n\\n The Insurance Company argues that two exclusionary\\n\\nclauses are relevant to this case. First, in Section B-2(d), the\\n\\nPolicy includes a \\\"Wear and Tear Exclusion\\\" which states:\\n\\n We will not pay for loss or damage caused by\\n or resulting from any of the following:\\n\\n . . .\\n\\n d. (1) Wear and tear;\\n (2) Rust, or other corrosion, decay,\\n deterioration, hidden or latent\\n defect, or any quality in property\\n that causes it to damage or destroy\\n itself;[1]\\n\\nSecond, in Section B-3(c), the Policy includes a \\\"Faulty\\n\\nConstruction Exclusion\\\" which excludes coverage for:\\n\\n loss or damage caused by or resulting from any\\n of the following [sections] but if an excluded\\n cause of loss that is listed in [the following\\n sections] results in a Covered Cause of Loss,\\n we will pay for the loss or damage caused by\\n that Covered Cause of Loss.\\n\\n . . .\\n\\n c. Faulty, inadequate, or defective:\\n\\n . . .\\n\\n\\n\\n 1 The Insurance Company did not cite the exclusions for \\\"wear\\nand tear\\\" and for \\\"any quality in property that causes it to damage\\nor destroy itself\\\" in its letters to the Church denying coverage,\\nthough it did raise them before the district court.\\n\\n\\n - 3 -\\n\\f (2) Design, specifications,\\n workmanship, repair, construction,\\n renovation, remodeling, grading,\\n compaction;\\n (3) Materials used in repair,\\n construction, renovation, or\\n remodeling; or\\n (4) Maintenance;\\n\\n of part or all of any property on or off\\n the described premises.\\n\\n In Section B-2(j), the Policy also includes a \\\"Collapse\\n\\nExclusion\\\" which excludes coverage for:\\n\\n Collapse, except as provided below in the\\n Additional Coverage - Collapse [provision].\\n But if collapse results in a Covered Cause of\\n Loss at the described premises, we will pay\\n for the loss or damage caused by that Covered\\n Cause of Loss.\\n\\nThe Additional Coverage - Collapse provision, Section D-2, in turn\\n\\nstates:\\n\\n The term Covered Cause of Loss includes the\\n Additional Coverage - Collapse as described\\n and limited in [the sections] below.\\n\\n 1. With respect to buildings:\\n\\n a. Collapse means an abrupt falling\\n down or caving in of a building or\\n any part of a building with the\\n result that the building or part of\\n the building cannot be occupied for\\n its intended purpose;\\n\\n . . .\\n\\n 2. We will pay for direct physical loss or\\n damage to Covered Property, caused by\\n collapse of a [Covered Property] . . . if\\n the collapse is caused by one or more of\\n the following:\\n\\n\\n - 4 -\\n\\f . . .\\n\\n b. Decay that is hidden from view,\\n unless the presence of such decay is\\n known to an insured prior to\\n collapse;\\n\\n . . .\\n\\n f. Use of defective material or methods\\n in construction, remodeling, or\\n renovation if the collapse occurs\\n during the course of the\\n construction, remodeling, or\\n renovation. However, if the\\n collapse occurs after construction,\\n remodeling, or renovation is\\n complete and is caused in part by a\\n cause of loss listed in [the\\n previous sections]; we will pay for\\n the loss or damage even if use of\\n defective material or methods, in\\n construction, remodeling, or\\n renovation, contributes to the\\n collapse.\\n\\nTherefore, although Section B-2(j) excludes coverage for collapses\\n\\ngenerally, Section D-2 effectively reinstates coverage under\\n\\nlimited circumstances, including where the collapse was caused in\\n\\npart by \\\"[d]ecay that is hidden from view.\\\" It is noted that the\\n\\nPolicy does not define the word \\\"decay.\\\"\\n\\n B. The Ceiling Collapse\\n\\n On April 25, 2016, the ceiling in the Fellowship section\\n\\nof the Church fell to the floor. The Church promptly reported the\\n\\nincident to the Insurance Company. Eight days later, at the\\n\\nrequest of the Insurance Company, forensic engineer Joseph Malo\\n\\n\\n\\n - 5 -\\n\\finspected the ceiling collapse and detailed his findings in a\\n\\nwritten report. The parties accepted the contents of Malo's report\\n\\nas \\\"agreed material facts.\\\"\\n\\n In that report, Malo wrote that the ceiling \\\"consist[ed]\\n\\nof three different types of materials installed one over the other\\n\\nwith a total thickness of approximately 3 [and] 3/4 inches.\\\" \\\"The\\n\\noriginal ceiling [was] constructed with wood lath and plaster\\n\\nattached to boards\\\" spaced twelve inches apart. The boards\\n\\nthemselves \\\"were attached to the ceiling joists\\\" by \\\"cut nails\\n\\nwith approximately 1 [and] 3/4-inch penetration.\\\" Although the\\n\\nboards were nailed to the joists, the wood lath and plaster were\\n\\nattached only to the boards. Sometime after the original ceiling\\n\\nwas constructed, two more ceiling layers were installed. The\\n\\nsecond layer consisted of drywall affixed to boards, which were\\n\\nthen nailed directly into the plaster. The third layer consisted\\n\\nof ceiling tiles that were attached directly to the surface of the\\n\\ndrywall. Neither the second nor third layers were attached to the\\n\\nceiling joists. In addition, there was approximately ten inches\\n\\nof insulation blown into the space above the ceiling. Therefore,\\n\\nthe only support for the three layers of ceiling materials and\\n\\ninsulation was the original nails that fastened the first layer of\\n\\nboards to the ceiling joists.\\n\\n Malo concluded that \\\"nail withdrawal\\\" by the smooth\\n\\nnails used to secure the original boards to the joists caused the\\n\\n\\n - 6 -\\n\\fceiling collapse. He observed that \\\"cyclical volumetric changes\\n\\ninduce[d] by normal temperature and moisture changes in the\\n\\nbuilding materials\\\" had caused the nails' connection to the joists\\n\\nto weaken. Eventually, the nails completely pulled out, \\\"leaving\\n\\nonly holes in the bottoms of the ceiling joists.\\\" In other words,\\n\\nthe collapse was caused by the \\\"progressive failure of the\\n\\nfasteners used to attach the layers of ceiling to the ceiling\\n\\njoists due to the weight of the ceiling.\\\"\\n\\n C. Denial of Coverage\\n\\n On May 19, 2016, the Insurance Company denied the\\n\\nChurch's claim, relying on Malo's report. As relevant here, the\\n\\nInsurance Coverage cited the Faulty Construction Exclusion,\\n\\nstating that \\\"[t]he fasteners used to uphold the ceiling were\\n\\ninadequate for the size/weight of the ceiling, and the ceiling\\n\\nsystem was not adequately fastened to the structure.\\\" The Church\\n\\nasked the Insurance Company to reconsider its decision, arguing\\n\\nthat the collapse was covered under the Additional Coverage -\\n\\nCollapse provision. However, on July 1, 2016, the Insurance\\n\\nCompany denied the reconsideration request.\\n\\n On September 26, 2016, the Church, through counsel, sent\\n\\nthe Insurance Company a letter detailing its position that the\\n\\nloss caused by the ceiling collapse was a covered event under the\\n\\nPolicy. The Church disputed the application of the Faulty\\n\\nConstruction Exclusion, claiming that because the ceiling lasted\\n\\n\\n - 7 -\\n\\fapproximately sixty years, its construction was \\\"entirely\\n\\neffective.\\\" In addition, the Church argued that the collapse was\\n\\ncaused by hidden decay and so was covered by the Additional\\n\\nCoverage - Collapse provision. It noted that Malo's report\\n\\nconcluded that the collapse occurred because of nail withdrawal,\\n\\nwhich was a \\\"progressive failure\\\" that \\\"could have taken a period\\n\\nof years to occur.\\\"\\n\\n The Insurance Company replied by letter through counsel\\n\\non October 21, 2016, reiterating its prior position that the\\n\\ncollapse occurred because of \\\"faulty construction.\\\"\\n\\nSpecifically, it argued that Malo's report concluded that the\\n\\nceiling's construction was flawed because the second and third\\n\\nlayers were not securely fastened to the ceiling joists. The\\n\\nletter also rejected the Church's allegation that hidden decay\\n\\ncontributed to the collapse.\\n\\n II. Procedural Background\\n\\n The Church filed suit in Massachusetts Superior Court in\\n\\nApril 2017 seeking a declaratory judgment that the Policy provided\\n\\ncoverage for the collapse. The Insurance Company timely removed\\n\\nthe case to federal court based on diversity jurisdiction.2 Both\\n\\n\\n\\n\\n 2 The Church is an organization located in Easthampton,\\nMassachusetts; the Insurance Company is a corporation with its\\nprincipal place of business in Merrill, Wisconsin; and the amount\\nin controversy exceeds $75,000.\\n\\n\\n - 8 -\\n\\fparties consented to have the case heard by a magistrate judge and\\n\\nfiled cross-motions for summary judgment.\\n\\n On May 10, 2018, the district court granted summary\\n\\njudgment for the Church. Easthampton Congregational Church v.\\n\\nChurch Mut. Ins. Co., 322 F. Supp. 3d 230 (D. Mass. 2018). The\\n\\ncourt concluded that the collapse resulted at least in part from\\n\\n\\\"hidden decay\\\" such that the Additional Coverage - Collapse\\n\\nprovision applied. Id. at 235-41. After noting that the Policy\\n\\nfailed to define \\\"decay,\\\" the court looked to dictionary\\n\\ndefinitions of that term and adopted a definition that encompassed\\n\\n\\\"a gradual deterioration or decline in strength or soundness.\\\"\\n\\nId. at 236-37. From there, the court held that there was\\n\\nsufficient evidence (i.e., the Malo report) to show that the\\n\\ncollapse \\\"was 'caused in part' by 'decay'\\\" \\\"hidden from view\\\" --\\n\\nnamely, the gradual nail withdrawal. Id. at 236-38. Accordingly,\\n\\nit held that the collapse fell within the Additional Coverage -\\n\\nCollapse provision. Id. Because that provision expressly provided\\n\\ncoverage, the court declined to address the Insurance Company's\\n\\narguments that the Wear and Tear and Faulty Construction Exclusions\\n\\napplied. Id. at 241-42. This timely appeal followed.\\n\\n III. Analysis\\n\\n A. Legal Framework\\n\\n We review the district court's grant of summary judgment\\n\\nde novo. AJC Int'l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3\\n\\n\\n - 9 -\\n\\f(1st Cir. 2015). \\\"Cross motions [for summary judgment] simply\\n\\nrequire us to determine whether either of the parties deserves\\n\\njudgment as a matter of law on facts that are not disputed.\\\"\\n\\nLittlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004)\\n\\n(quotation marks and citation omitted).\\n\\n \\\"Because this case is brought in diversity jurisdiction,\\n\\nwe must look to state law for the substantive rules of decision.\\\"\\n\\nSanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)\\n\\n(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The\\n\\nparties agree that Massachusetts law controls the disposition of\\n\\nthis case. See Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st\\n\\nCir. 2011) (\\\"In determining which state's law applies, a diversity\\n\\ncourt is free to honor the parties' reasonable agreement.\\\").\\n\\n \\\"[T]he construction of an insurance policy is a question\\n\\nof law . . . .\\\" Lind-Hernández v. Hosp. Episcopal San Lucas\\n\\nGuayama, 898 F.3d 99, 103 (1st Cir. 2018) (internal quotation marks\\n\\nand citation omitted). \\\"Under Massachusetts law, we construe an\\n\\ninsurance policy under the general rules of contract\\n\\ninterpretation, beginning with the actual language of the\\n\\npolicies, given its plain and ordinary meaning.\\\" AIG Prop. Cas.\\n\\nCo. v. Cosby, 892 F.3d 25, 27 (1st Cir. 2018) (internal quotation\\n\\nmarks, alterations, and citation omitted).\\n\\n As a general matter, in Massachusetts, the insured bears\\n\\nthe \\\"initial burden of showing that the case involves a generally\\n\\n\\n - 10 -\\n\\fcovered risk under the policy.\\\" Stor/Gard, Inc. v. Strathmore\\n\\nIns. Co., 717 F.3d 242, 247 (1st Cir. 2013) (citation omitted).\\n\\nWhere, as is here, the parties do not dispute that the incident\\n\\nwas a generally covered risk, the burden shifts such that the\\n\\ninsurer must demonstrate that an exclusion precludes coverage.\\n\\nClark Sch. for Creative Learning, Inc. v. Phila. Indem. Ins. Co.,\\n\\n734 F.3d 51, 55 & n.1 (1st Cir. 2013). \\\"And if the insurer\\n\\nsatisfies that burden, the burden shifts back to the insureds to\\n\\nshow an exception to the exclusion holds sway.\\\" Stor/Gard, Inc.,\\n\\n717 F.3d at 247 (citation omitted).\\n\\n However, where \\\"a term is 'susceptible of more than one\\n\\nmeaning and reasonably intelligent persons would differ as to which\\n\\nmeaning is the proper one,' the term is ambiguous.\\\" U.S. Liab.\\n\\nIns. Co. v. Benchmark Constr. Servs., Inc., 797 F.3d 116, 119-20\\n\\n(1st Cir. 2015) (quoting Citation Ins. Co. v. Gomez, 426 Mass.\\n\\n379, 381 (1998)). To the extent an ambiguity does exist, it is\\n\\nstrictly construed against the insurer. See Metro. Prop. & Cas.\\n\\nIns. Co. v. Morrison, 460 Mass. 352, 362-63 (2011).\\n\\n It is also a principle of Massachusetts law that \\\"[m]ore\\n\\nspecific contract terms ordinarily control over more general\\n\\ncontract terms.\\\" Davis v. Dawson, Inc., 15 F. Supp. 2d 64, 109\\n\\n(D. Mass. 1998) (citing Lawson v. Fed. Deposit Ins. Corp., 3 F.3d\\n\\n11, 17 (1st Cir. 1993)). Therefore, if a policy provision is found\\n\\n\\n\\n\\n - 11 -\\n\\fto provide for coverage, then general exclusion clauses are\\n\\ninapplicable. See id.\\n\\n B. Definition of \\\"Decay\\\"\\n\\n The parties agree that we must first determine whether\\n\\nthe hidden decay section of the Additional Coverage - Collapse\\n\\nprovision applies. If the ceiling collapse is covered by that\\n\\nsection, or if the language is ambiguous with respect to coverage,\\n\\nthen the general Faulty Construction and Wear and Tear Exclusions\\n\\nare inapplicable. The parties further agree that the nail\\n\\nwithdrawal was \\\"hidden,\\\" so that the disposition of this case turns\\n\\nat the outset on the definition and application of the word\\n\\n\\\"decay.\\\"\\n\\n As we have said, the Policy does not define \\\"decay.\\\" In\\n\\nsuch circumstances, \\\"courts often look to dictionaries for\\n\\nassistance in determining ordinary meaning.\\\" Fed. Ins. Co. v.\\n\\nRaytheon Co., 426 F.3d 491, 498-99 (1st Cir. 2005) (citation\\n\\nomitted). Here, the district court consulted two dictionaries.\\n\\nEasthampton, 322 F. Supp. 3d at 236. First, it looked to the\\n\\nMerriam-Webster Dictionary, which defined \\\"decay\\\" (in noun form)\\n\\nas a \\\"gradual decline in strength, soundness, or prosperity or in\\n\\ndegree of excellence or perfection,\\\" \\\"a wasting or wearing away,\\\"\\n\\nand a \\\"rot . . . specifically[,] aerobic decomposition of proteins\\n\\nchiefly by bacteria.\\\" Decay, Merriam-Webster Dictionary,\\n\\navailable at https://www.merriam-webster.com/dictionary/decay.\\n\\n\\n - 12 -\\n\\fSecond, it turned to the Oxford English Dictionary, which defined\\n\\n\\\"decay\\\" as \\\"[t]he process of falling off from a prosperous or\\n\\nthriving condition; progressive decline; the condition of one who\\n\\nhas thus fallen off or declined,\\\" \\\"falling off (in quantity,\\n\\nvolume, intensity, etc.); dwindling, decrease,\\\" and \\\"the\\n\\ndestructive decomposition or wasting of organic tissue; rotting.\\\"\\n\\nDecay, Oxford English Dictionary, available at\\n\\nhttp://www.oed.com/view/Entry/48067?rskey=z7ljDr& result=1#eid.\\n\\n The district court held that \\\"[t]he most reasonable\\n\\nreading of the word 'decay' as it is used in the Policy is that it\\n\\nrefers to the broader concept of the word.\\\" Easthampton, 322 F.\\n\\nSupp. 3d at 236. That is, a \\\"gradual decline in strength\\\" or\\n\\n\\\"progressive decline\\\" as opposed to a narrower definition that\\n\\nentails organic rotting. Id. at 236-37. In support, it noted\\n\\nthat the Policy used the word \\\"rot\\\" in a separate exclusion titled\\n\\n\\\"'Fungus,' Wet Rot, Dry Rot and Bacteria.\\\" Id. at 236.\\n\\nTherefore, the district court reasoned that the Insurance Company\\n\\nmust have intended \\\"decay\\\" to mean something broader than rot.\\n\\nId. at 236-37.\\n\\n We agree with the district court's decision, although\\n\\nnot its reasoning. As used in the Policy, the word \\\"decay\\\" could\\n\\nplausibly be read to mean either \\\"progressive decline\\\" or \\\"rot.\\\"\\n\\nAccordingly, its meaning is ambiguous and that ambiguity must be\\n\\n\\n\\n\\n - 13 -\\n\\fresolved in the Church's favor.3 See U.S. Liab. Ins. Co., 797 F.3d\\n\\nat 119-21; Allmerica Fin. Corp. v. Certain Underwriters at Lloyd's,\\n\\nLondon, 449 Mass. 621, 628 (2007). On that basis alone, we affirm\\n\\nthe district court's judgment.\\n\\n We note that other courts have resolved this issue in\\n\\nthe same way. For example, in Stamm Theatres, Inc. v. Hartford\\n\\nCas. Ins. Co., 93 Cal. App. 4th 531, 535 (2001), the ceiling in\\n\\nthe insured's theater \\\"was in a state of 'imminent collapse.'\\\"\\n\\nSeveral wooden trusses supporting the ceiling had cracked\\n\\n\\\"completely through.\\\" Id. at 536. The theater produced an expert\\n\\nwho attributed the cracks to, inter alia, \\\"the increased load\\n\\ncreated by a partial reroofing.\\\" Id. The insurer produced experts\\n\\nwho similarly concluded that the cracks were caused by excessive\\n\\npressure on the trusses. Id. at 537. Considering an insurance\\n\\npolicy that, like the Policy in question here, covered losses\\n\\nattributable to \\\"hidden decay,\\\" the California Court of Appeals\\n\\nrejected the insurer's argument that the definition of \\\"decay\\\"\\n\\nshould be limited to organic rot. Id. at 538-41. In doing so,\\n\\nthe court stated that the insurer's failure to define \\\"decay,\\\"\\n\\ncoupled with the existence of multiple dictionary definitions of\\n\\n\\n\\n\\n 3 Neither party argued that the term was ambiguous at the\\ndistrict court. However, on appeal, the Church appears to have\\nraised an ambiguity argument.\\n\\n\\n - 14 -\\n\\fthe term, created an ambiguity that must be resolved in favor of\\n\\nthe insured.4 Id. at 543.\\n\\n The Insurance Company raises a variety of arguments in\\n\\nresponse, none of which are availing. First, it suggests that the\\n\\ncases the district court relied upon were inapposite because the\\n\\n\\\"'decay' that was the actual subject of each [case] was uniformly,\\n\\nand more narrowly, associated with a discrete physical impairment\\n\\nto the material quality of a component of the collapsed property.\\\"\\n\\nHowever, that argument does nothing to refute the core holding of\\n\\nthe cited cases -- namely, that those \\\"physical impairments\\\" were\\n\\ncovered because they fell within a broader definition of \\\"decay\\\"\\n\\nthat included gradual degradation.\\n\\n\\n\\n\\n 4 It is also a principle that contract terms should be\\nconstrued in their plain and ordinary meaning. AIG Prop. Cas.\\nCo., 892 F.3d at 27. While \\\"decay\\\" has a definition connoting\\n\\\"rot\\\" in the biological sciences, other courts have found that its\\n\\\"'ordinary, plain meaning' [] encompasses a 'generalized\\ndefinition of decomposition.'\\\" Joy Tabernacle—The New Testament\\nChurch v. State Farm Fire and Cas. Co., 616 F. App'x 802, 809 (6th\\nCir. 2015) (unpublished) (quoting Hani & Ramiz, Inc. v. North\\nPointe Ins. Co., No. 316453, 2014 WL 523492, at *3 (Mich. Ct. App.\\nFeb. 4, 2014) (unpublished per curiam opinion)); accord Quality\\nTime, Inc. v. West Bend Mut. Ins. Co., No. 12-1008-JTM, 2013 WL\\n474289, at *13 (D. Kan. Feb. 7, 2013) (\\\"Because the term decay\\nmay, consistent with popular understanding, be construed to mean\\ngradual deterioration or degradation, without organic\\ndecomposition, this is how the court construes the term here.\\\");\\nNe. Ctr. Inc. v. St. Paul Fire and Marine Ins. Co., No. 03-246-\\nTS, 2006 WL 842396, at *5 (N.D. Ind. Mar. 28, 2006) (concluding\\nthat \\\"decay\\\" \\\"is not ordinarily understood to mean only 'rot,'\\\"\\nbut rather connotes \\\"a progressive failure in strength or\\nsoundness\\\" or \\\"wasting and wearing away.\\\").\\n\\n\\n - 15 -\\n\\f Second, the Insurance Company complains that the\\n\\ndistrict court's chosen definition would encompass all collapses,\\n\\nbecause \\\"it is difficult to imagine any collapse, of any structure,\\n\\nbeing caused by something other than 'decay.'\\\" But, even if the\\n\\nInsurance Company did not intend to provide coverage for collapses\\n\\nlike the one in question, that is a self-inflicted problem. The\\n\\nInsurance Company, which wrote the Policy, could simply have\\n\\ndefined \\\"decay\\\" narrowly or limited the coverage period. Despite\\n\\nthe Insurance Company's protestations, our interpretation of the\\n\\nPolicy would not result in coverage for all collapses. As the\\n\\ndistrict court correctly noted, \\\"[t]he insured still has to prove\\n\\nthat one of the . . . enumerated causes of loss contributed to the\\n\\ncollapse, and where an insured relies on hidden decay, the insured\\n\\nstill has to show a gradual deterioration or decline in strength\\n\\nor soundness that was not apparent to the insured.\\\" Easthampton,\\n\\n322 F. Supp. 3d at 241.\\n\\n Finally, the Insurance Company argues that the district\\n\\ncourt's decision \\\"cannot be reconciled with [the First Circuit's]\\n\\nopinion in Parker v. Worcester Ins. Co., 247 F.3d 1 (1st Cir.\\n\\n2001).\\\" In that case, the plaintiff homeowner obtained homeowner's\\n\\ninsurance shortly after acquiring her Connecticut home. Parker,\\n\\n247 F.3d at 2. Soon after moving in, she noticed hairline cracks\\n\\nin the concrete walls of the basement but disregarded them as\\n\\ncosmetic. Id. Approximately ten years later, she \\\"noticed that\\n\\n\\n - 16 -\\n\\fthe cracks were growing larger,\\\" threatening the home's\\n\\nfoundation, and filed a claim for collapse with the defendant\\n\\ninsurer.5 Id. The insurer denied coverage based on an engineering\\n\\nreport which concluded that the cracks were caused by \\\"defective\\n\\nconcrete\\\" and \\\"high lateral earth pressures due to poor drainage.\\\"\\n\\nId. at 3.\\n\\n The district court granted summary judgment for the\\n\\ninsurer, finding that the claim was time-barred. Id. at 3-4. This\\n\\ncourt reversed, concluding that the Connecticut Supreme Court6\\n\\nwould likely toll the limitations period until \\\"the point of real\\n\\nor imputed knowledge of such a threat [of loss].\\\" Id. at 5.\\n\\nHowever, in dicta, the decision expressed skepticism as to the\\n\\nmerits of the claim, cautioning that the policy excluded coverage\\n\\nfor loss \\\"due to faulty construction of the foundation.\\\" Id. at\\n\\n6. While there was a coverage provision for \\\"hidden decay,\\\" the\\n\\ndecision also stated that \\\"'decay' is not a backdoor to coverage\\n\\nfor poor construction materials and workmanship.\\\" Id.\\n\\n Here, because the second and third layers of the ceiling\\n\\nwere never fastened to the joists, the Insurance Company argues\\n\\n\\n 5In Connecticut, a property owner may file a claim for\\ncollapse \\\"as soon as structural integrity is substantially\\nimpaired.\\\" Parker, 247 F.3d at 4 (citing Beach v. Middlesex Mut.\\nAssurance Co., 532 A.2d 1297, 1300-01 (Conn. 1987)).\\n 6In Parker, although the case was filed in Massachusetts,\\nthe parties agreed that Connecticut law controlled. 247 F.3d at\\n3.\\n\\n\\n - 17 -\\n\\fthat the collapse was attributable to defective workmanship and\\n\\nthat the above-quoted dicta from Parker compels reversal. It\\n\\nargues that to do otherwise would be to \\\"sneak in through the\\n\\nbackdoor of coverage in the guise of 'hidden decay.'\\\" In support,\\n\\nthe Insurance Company claims that \\\"[t]he policy language in the\\n\\ntwo [cases] is essentially the same.\\\"\\n\\n Even ignoring the fact that the cited language was dicta,\\n\\nwhich is not binding, there are important distinctions between\\n\\nParker and this case. In Parker, the insurer limited coverage for\\n\\ncollapses attributable to \\\"defective material or methods\\\" only to\\n\\nsituations where the collapse occurred \\\"during construction.\\\" 247\\n\\nF.3d at 6. By contrast, in this case, the Insurance Company\\n\\nexplicitly granted coverage for collapses occurring after\\n\\nconstruction, provided the collapse was caused in part by hidden\\n\\ndecay. Moreover, in Parker, because the concrete that caused the\\n\\ncollapse was defective to begin with, it was doubtful that it\\n\\n\\\"could be called 'decay,'\\\" so the hidden decay provision was\\n\\ninapplicable. Id. at 6. Here, even assuming that the ceiling as\\n\\nput together at the time of collapse was defective, the Malo report\\n\\nestablishes that the cause of the collapse was the progressive\\n\\nweakening of the smooth nails connecting the first layer of the\\n\\nceiling to the joists. Our holding is not inconsistent with\\n\\nParker.\\n\\n\\n\\n\\n - 18 -\\n\\f IV. Conclusion\\n\\n Because ambiguities in the Policy result in coverage for\\n\\nthe collapse, we need not consider the application of the general\\n\\nexclusions. For the foregoing reasons, the judgment of the\\n\\ndistrict court is AFFIRMED. Costs are awarded to the Church.\\n\\n\\n\\n\\n - 19 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4370545/\", \"author_raw\": \"STAHL, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"SOUTER"},"judge3":{"kind":"string","value":"STAHL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4593292/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: EASTHAMPTON CONGREGATIONAL CHURCH, Plaintiff, Appellee, v. CHURCH MUTUAL INSURANCE COMPANY, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 18-1881\n\n EASTHAMPTON CONGREGATIONAL CHURCH,\n\n Plaintiff, Appellee,\n\n v.\n\n CHURCH MUTUAL INSURANCE COMPANY,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Katherine A. Robertson, Magistrate Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter, Associate Justice,*\n and Stahl, Circuit Judge.\n\n\n John Egan, with whom Rubin and Rudman, LLP was on brief, for\nappellant.\n William P. Rose, with whom Melick & Porter LLP was on brief,\nfor appellee.\n\n\n February 22, 2019\n\n\n\n\n * Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f STAHL, Circuit Judge. This appeal requires the\n\ninterpretation of words and terms in an insurance policy.\n\nPlaintiff-Appellee Easthampton Congregational Church (the\n\n\"Church\") had a property insurance policy (the \"Policy\") with\n\nDefendant-Appellant Church Mutual Insurance Company (the\n\n\"Insurance Company\"). On April 25, 2016, the ceiling in one\n\nsection of the Church collapsed. The Church filed a claim pursuant\n\nto the Policy, which the Insurance Company denied. The Church\n\nthen filed suit, seeking a declaratory judgment that the claim was\n\ncovered. On cross-motions for summary judgment, the district court\n\nruled for the Church. Noting that the Policy did not define the\n\nword \"decay,\" the court adopted a dictionary definition of the\n\nword and used that definition to conclude that the Policy provided\n\ncoverage. We affirm, albeit for different reasons.\n\n I. Factual Background\n\n A. The Insurance Policy\n\n The Policy was in effect at the time of the collapse and\n\ncarries a coverage limit of $5,353,000. The parties agree that\n\nthe damaged section of the Church, Fellowship Hall, \"is among the\n\n[covered] premises described in the [P]olicy's Declarations Page.\"\n\n The coverage provisions are governed by two primary\n\nforms. The first is the \"Building and Personal Property Coverage\n\nForm,\" which covers \"direct physical loss of or damage to Covered\n\nProperty . . . caused by or resulting from any Covered Cause of\n\n\n - 2 -\n\fLoss.\" The second is the \"Causes of Loss - Special Form.\" That\n\nform sets forth various exclusions and limitations in Sections B\n\nand C, respectively.\n\n The Insurance Company argues that two exclusionary\n\nclauses are relevant to this case. First, in Section B-2(d), the\n\nPolicy includes a \"Wear and Tear Exclusion\" which states:\n\n We will not pay for loss or damage caused by\n or resulting from any of the following:\n\n . . .\n\n d. (1) Wear and tear;\n (2) Rust, or other corrosion, decay,\n deterioration, hidden or latent\n defect, or any quality in property\n that causes it to damage or destroy\n itself;[1]\n\nSecond, in Section B-3(c), the Policy includes a \"Faulty\n\nConstruction Exclusion\" which excludes coverage for:\n\n loss or damage caused by or resulting from any\n of the following [sections] but if an excluded\n cause of loss that is listed in [the following\n sections] results in a Covered Cause of Loss,\n we will pay for the loss or damage caused by\n that Covered Cause of Loss.\n\n . . .\n\n c. Faulty, inadequate, or defective:\n\n . . .\n\n\n\n 1 The Insurance Company did not cite the exclusions for \"wear\nand tear\" and for \"any quality in property that causes it to damage\nor destroy itself\" in its letters to the Church denying coverage,\nthough it did raise them before the district court.\n\n\n - 3 -\n\f (2) Design, specifications,\n workmanship, repair, construction,\n renovation, remodeling, grading,\n compaction;\n (3) Materials used in repair,\n construction, renovation, or\n remodeling; or\n (4) Maintenance;\n\n of part or all of any property on or off\n the described premises.\n\n In Section B-2(j), the Policy also includes a \"Collapse\n\nExclusion\" which excludes coverage for:\n\n Collapse, except as provided below in the\n Additional Coverage - Collapse [provision].\n But if collapse results in a Covered Cause of\n Loss at the described premises, we will pay\n for the loss or damage caused by that Covered\n Cause of Loss.\n\nThe Additional Coverage - Collapse provision, Section D-2, in turn\n\nstates:\n\n The term Covered Cause of Loss includes the\n Additional Coverage - Collapse as described\n and limited in [the sections] below.\n\n 1. With respect to buildings:\n\n a. Collapse means an abrupt falling\n down or caving in of a building or\n any part of a building with the\n result that the building or part of\n the building cannot be occupied for\n its intended purpose;\n\n . . .\n\n 2. We will pay for direct physical loss or\n damage to Covered Property, caused by\n collapse of a [Covered Property] . . . if\n the collapse is caused by one or more of\n the following:\n\n\n - 4 -\n\f . . .\n\n b. Decay that is hidden from view,\n unless the presence of such decay is\n known to an insured prior to\n collapse;\n\n . . .\n\n f. Use of defective material or methods\n in construction, remodeling, or\n renovation if the collapse occurs\n during the course of the\n construction, remodeling, or\n renovation. However, if the\n collapse occurs after construction,\n remodeling, or renovation is\n complete and is caused in part by a\n cause of loss listed in [the\n previous sections]; we will pay for\n the loss or damage even if use of\n defective material or methods, in\n construction, remodeling, or\n renovation, contributes to the\n collapse.\n\nTherefore, although Section B-2(j) excludes coverage for collapses\n\ngenerally, Section D-2 effectively reinstates coverage under\n\nlimited circumstances, including where the collapse was caused in\n\npart by \"[d]ecay that is hidden from view.\" It is noted that the\n\nPolicy does not define the word \"decay.\"\n\n B. The Ceiling Collapse\n\n On April 25, 2016, the ceiling in the Fellowship section\n\nof the Church fell to the floor. The Church promptly reported the\n\nincident to the Insurance Company. Eight days later, at the\n\nrequest of the Insurance Company, forensic engineer Joseph Malo\n\n\n\n - 5 -\n\finspected the ceiling collapse and detailed his findings in a\n\nwritten report. The parties accepted the contents of Malo's report\n\nas \"agreed material facts.\"\n\n In that report, Malo wrote that the ceiling \"consist[ed]\n\nof three different types of materials installed one over the other\n\nwith a total thickness of approximately 3 [and] 3/4 inches.\" \"The\n\noriginal ceiling [was] constructed with wood lath and plaster\n\nattached to boards\" spaced twelve inches apart. The boards\n\nthemselves \"were attached to the ceiling joists\" by \"cut nails\n\nwith approximately 1 [and] 3/4-inch penetration.\" Although the\n\nboards were nailed to the joists, the wood lath and plaster were\n\nattached only to the boards. Sometime after the original ceiling\n\nwas constructed, two more ceiling layers were installed. The\n\nsecond layer consisted of drywall affixed to boards, which were\n\nthen nailed directly into the plaster. The third layer consisted\n\nof ceiling tiles that were attached directly to the surface of the\n\ndrywall. Neither the second nor third layers were attached to the\n\nceiling joists. In addition, there was approximately ten inches\n\nof insulation blown into the space above the ceiling. Therefore,\n\nthe only support for the three layers of ceiling materials and\n\ninsulation was the original nails that fastened the first layer of\n\nboards to the ceiling joists.\n\n Malo concluded that \"nail withdrawal\" by the smooth\n\nnails used to secure the original boards to the joists caused the\n\n\n - 6 -\n\fceiling collapse. He observed that \"cyclical volumetric changes\n\ninduce[d] by normal temperature and moisture changes in the\n\nbuilding materials\" had caused the nails' connection to the joists\n\nto weaken. Eventually, the nails completely pulled out, \"leaving\n\nonly holes in the bottoms of the ceiling joists.\" In other words,\n\nthe collapse was caused by the \"progressive failure of the\n\nfasteners used to attach the layers of ceiling to the ceiling\n\njoists due to the weight of the ceiling.\"\n\n C. Denial of Coverage\n\n On May 19, 2016, the Insurance Company denied the\n\nChurch's claim, relying on Malo's report. As relevant here, the\n\nInsurance Coverage cited the Faulty Construction Exclusion,\n\nstating that \"[t]he fasteners used to uphold the ceiling were\n\ninadequate for the size/weight of the ceiling, and the ceiling\n\nsystem was not adequately fastened to the structure.\" The Church\n\nasked the Insurance Company to reconsider its decision, arguing\n\nthat the collapse was covered under the Additional Coverage -\n\nCollapse provision. However, on July 1, 2016, the Insurance\n\nCompany denied the reconsideration request.\n\n On September 26, 2016, the Church, through counsel, sent\n\nthe Insurance Company a letter detailing its position that the\n\nloss caused by the ceiling collapse was a covered event under the\n\nPolicy. The Church disputed the application of the Faulty\n\nConstruction Exclusion, claiming that because the ceiling lasted\n\n\n - 7 -\n\fapproximately sixty years, its construction was \"entirely\n\neffective.\" In addition, the Church argued that the collapse was\n\ncaused by hidden decay and so was covered by the Additional\n\nCoverage - Collapse provision. It noted that Malo's report\n\nconcluded that the collapse occurred because of nail withdrawal,\n\nwhich was a \"progressive failure\" that \"could have taken a period\n\nof years to occur.\"\n\n The Insurance Company replied by letter through counsel\n\non October 21, 2016, reiterating its prior position that the\n\ncollapse occurred because of \"faulty construction.\"\n\nSpecifically, it argued that Malo's report concluded that the\n\nceiling's construction was flawed because the second and third\n\nlayers were not securely fastened to the ceiling joists. The\n\nletter also rejected the Church's allegation that hidden decay\n\ncontributed to the collapse.\n\n II. Procedural Background\n\n The Church filed suit in Massachusetts Superior Court in\n\nApril 2017 seeking a declaratory judgment that the Policy provided\n\ncoverage for the collapse. The Insurance Company timely removed\n\nthe case to federal court based on diversity jurisdiction.2 Both\n\n\n\n\n 2 The Church is an organization located in Easthampton,\nMassachusetts; the Insurance Company is a corporation with its\nprincipal place of business in Merrill, Wisconsin; and the amount\nin controversy exceeds $75,000.\n\n\n - 8 -\n\fparties consented to have the case heard by a magistrate judge and\n\nfiled cross-motions for summary judgment.\n\n On May 10, 2018, the district court granted summary\n\njudgment for the Church. Easthampton Congregational Church v.\n\nChurch Mut. Ins. Co., 322 F. Supp. 3d 230 (D. Mass. 2018). The\n\ncourt concluded that the collapse resulted at least in part from\n\n\"hidden decay\" such that the Additional Coverage - Collapse\n\nprovision applied. Id. at 235-41. After noting that the Policy\n\nfailed to define \"decay,\" the court looked to dictionary\n\ndefinitions of that term and adopted a definition that encompassed\n\n\"a gradual deterioration or decline in strength or soundness.\"\n\nId. at 236-37. From there, the court held that there was\n\nsufficient evidence (i.e., the Malo report) to show that the\n\ncollapse \"was 'caused in part' by 'decay'\" \"hidden from view\" --\n\nnamely, the gradual nail withdrawal. Id. at 236-38. Accordingly,\n\nit held that the collapse fell within the Additional Coverage -\n\nCollapse provision. Id. Because that provision expressly provided\n\ncoverage, the court declined to address the Insurance Company's\n\narguments that the Wear and Tear and Faulty Construction Exclusions\n\napplied. Id. at 241-42. This timely appeal followed.\n\n III. Analysis\n\n A. Legal Framework\n\n We review the district court's grant of summary judgment\n\nde novo. AJC Int'l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3\n\n\n - 9 -\n\f(1st Cir. 2015). \"Cross motions [for summary judgment] simply\n\nrequire us to determine whether either of the parties deserves\n\njudgment as a matter of law on facts that are not disputed.\"\n\nLittlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004)\n\n(quotation marks and citation omitted).\n\n \"Because this case is brought in diversity jurisdiction,\n\nwe must look to state law for the substantive rules of decision.\"\n\nSanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)\n\n(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The\n\nparties agree that Massachusetts law controls the disposition of\n\nthis case. See Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st\n\nCir. 2011) (\"In determining which state's law applies, a diversity\n\ncourt is free to honor the parties' reasonable agreement.\").\n\n \"[T]he construction of an insurance policy is a question\n\nof law . . . .\" Lind-Hernández v. Hosp. Episcopal San Lucas\n\nGuayama, 898 F.3d 99, 103 (1st Cir. 2018) (internal quotation marks\n\nand citation omitted). \"Under Massachusetts law, we construe an\n\ninsurance policy under the general rules of contract\n\ninterpretation, beginning with the actual language of the\n\npolicies, given its plain and ordinary meaning.\" AIG Prop. Cas.\n\nCo. v. Cosby, 892 F.3d 25, 27 (1st Cir. 2018) (internal quotation\n\nmarks, alterations, and citation omitted).\n\n As a general matter, in Massachusetts, the insured bears\n\nthe \"initial burden of showing that the case involves a generally\n\n\n - 10 -\n\fcovered risk under the policy.\" Stor/Gard, Inc. v. Strathmore\n\nIns. Co., 717 F.3d 242, 247 (1st Cir. 2013) (citation omitted).\n\nWhere, as is here, the parties do not dispute that the incident\n\nwas a generally covered risk, the burden shifts such that the\n\ninsurer must demonstrate that an exclusion precludes coverage.\n\nClark Sch. for Creative Learning, Inc. v. Phila. Indem. Ins. Co.,\n\n734 F.3d 51, 55 & n.1 (1st Cir. 2013). \"And if the insurer\n\nsatisfies that burden, the burden shifts back to the insureds to\n\nshow an exception to the exclusion holds sway.\" Stor/Gard, Inc.,\n\n717 F.3d at 247 (citation omitted).\n\n However, where \"a term is 'susceptible of more than one\n\nmeaning and reasonably intelligent persons would differ as to which\n\nmeaning is the proper one,' the term is ambiguous.\" U.S. Liab.\n\nIns. Co. v. Benchmark Constr. Servs., Inc., 797 F.3d 116, 119-20\n\n(1st Cir. 2015) (quoting Citation Ins. Co. v. Gomez, 426 Mass.\n\n379, 381 (1998)). To the extent an ambiguity does exist, it is\n\nstrictly construed against the insurer. See Metro. Prop. & Cas.\n\nIns. Co. v. Morrison, 460 Mass. 352, 362-63 (2011).\n\n It is also a principle of Massachusetts law that \"[m]ore\n\nspecific contract terms ordinarily control over more general\n\ncontract terms.\" Davis v. Dawson, Inc., 15 F. Supp. 2d 64, 109\n\n(D. Mass. 1998) (citing Lawson v. Fed. Deposit Ins. Corp., 3 F.3d\n\n11, 17 (1st Cir. 1993)). Therefore, if a policy provision is found\n\n\n\n\n - 11 -\n\fto provide for coverage, then general exclusion clauses are\n\ninapplicable. See id.\n\n B. Definition of \"Decay\"\n\n The parties agree that we must first determine whether\n\nthe hidden decay section of the Additional Coverage - Collapse\n\nprovision applies. If the ceiling collapse is covered by that\n\nsection, or if the language is ambiguous with respect to coverage,\n\nthen the general Faulty Construction and Wear and Tear Exclusions\n\nare inapplicable. The parties further agree that the nail\n\nwithdrawal was \"hidden,\" so that the disposition of this case turns\n\nat the outset on the definition and application of the word\n\n\"decay.\"\n\n As we have said, the Policy does not define \"decay.\" In\n\nsuch circumstances, \"courts often look to dictionaries for\n\nassistance in determining ordinary meaning.\" Fed. Ins. Co. v.\n\nRaytheon Co., 426 F.3d 491, 498-99 (1st Cir. 2005) (citation\n\nomitted). Here, the district court consulted two dictionaries.\n\nEasthampton, 322 F. Supp. 3d at 236. First, it looked to the\n\nMerriam-Webster Dictionary, which defined \"decay\" (in noun form)\n\nas a \"gradual decline in strength, soundness, or prosperity or in\n\ndegree of excellence or perfection,\" \"a wasting or wearing away,\"\n\nand a \"rot . . . specifically[,] aerobic decomposition of proteins\n\nchiefly by bacteria.\" Decay, Merriam-Webster Dictionary,\n\navailable at https://www.merriam-webster.com/dictionary/decay.\n\n\n - 12 -\n\fSecond, it turned to the Oxford English Dictionary, which defined\n\n\"decay\" as \"[t]he process of falling off from a prosperous or\n\nthriving condition; progressive decline; the condition of one who\n\nhas thus fallen off or declined,\" \"falling off (in quantity,\n\nvolume, intensity, etc.); dwindling, decrease,\" and \"the\n\ndestructive decomposition or wasting of organic tissue; rotting.\"\n\nDecay, Oxford English Dictionary, available at\n\nhttp://www.oed.com/view/Entry/48067?rskey=z7ljDr& result=1#eid.\n\n The district court held that \"[t]he most reasonable\n\nreading of the word 'decay' as it is used in the Policy is that it\n\nrefers to the broader concept of the word.\" Easthampton, 322 F.\n\nSupp. 3d at 236. That is, a \"gradual decline in strength\" or\n\n\"progressive decline\" as opposed to a narrower definition that\n\nentails organic rotting. Id. at 236-37. In support, it noted\n\nthat the Policy used the word \"rot\" in a separate exclusion titled\n\n\"'Fungus,' Wet Rot, Dry Rot and Bacteria.\" Id. at 236.\n\nTherefore, the district court reasoned that the Insurance Company\n\nmust have intended \"decay\" to mean something broader than rot.\n\nId. at 236-37.\n\n We agree with the district court's decision, although\n\nnot its reasoning. As used in the Policy, the word \"decay\" could\n\nplausibly be read to mean either \"progressive decline\" or \"rot.\"\n\nAccordingly, its meaning is ambiguous and that ambiguity must be\n\n\n\n\n - 13 -\n\fresolved in the Church's favor.3 See U.S. Liab. Ins. Co., 797 F.3d\n\nat 119-21; Allmerica Fin. Corp. v. Certain Underwriters at Lloyd's,\n\nLondon, 449 Mass. 621, 628 (2007). On that basis alone, we affirm\n\nthe district court's judgment.\n\n We note that other courts have resolved this issue in\n\nthe same way. For example, in Stamm Theatres, Inc. v. Hartford\n\nCas. Ins. Co., 93 Cal. App. 4th 531, 535 (2001), the ceiling in\n\nthe insured's theater \"was in a state of 'imminent collapse.'\"\n\nSeveral wooden trusses supporting the ceiling had cracked\n\n\"completely through.\" Id. at 536. The theater produced an expert\n\nwho attributed the cracks to, inter alia, \"the increased load\n\ncreated by a partial reroofing.\" Id. The insurer produced experts\n\nwho similarly concluded that the cracks were caused by excessive\n\npressure on the trusses. Id. at 537. Considering an insurance\n\npolicy that, like the Policy in question here, covered losses\n\nattributable to \"hidden decay,\" the California Court of Appeals\n\nrejected the insurer's argument that the definition of \"decay\"\n\nshould be limited to organic rot. Id. at 538-41. In doing so,\n\nthe court stated that the insurer's failure to define \"decay,\"\n\ncoupled with the existence of multiple dictionary definitions of\n\n\n\n\n 3 Neither party argued that the term was ambiguous at the\ndistrict court. However, on appeal, the Church appears to have\nraised an ambiguity argument.\n\n\n - 14 -\n\fthe term, created an ambiguity that must be resolved in favor of\n\nthe insured.4 Id. at 543.\n\n The Insurance Company raises a variety of arguments in\n\nresponse, none of which are availing. First, it suggests that the\n\ncases the district court relied upon were inapposite because the\n\n\"'decay' that was the actual subject of each [case] was uniformly,\n\nand more narrowly, associated with a discrete physical impairment\n\nto the material quality of a component of the collapsed property.\"\n\nHowever, that argument does nothing to refute the core holding of\n\nthe cited cases -- namely, that those \"physical impairments\" were\n\ncovered because they fell within a broader definition of \"decay\"\n\nthat included gradual degradation.\n\n\n\n\n 4 It is also a principle that contract terms should be\nconstrued in their plain and ordinary meaning. AIG Prop. Cas.\nCo., 892 F.3d at 27. While \"decay\" has a definition connoting\n\"rot\" in the biological sciences, other courts have found that its\n\"'ordinary, plain meaning' [] encompasses a 'generalized\ndefinition of decomposition.'\" Joy Tabernacle—The New Testament\nChurch v. State Farm Fire and Cas. Co., 616 F. App'x 802, 809 (6th\nCir. 2015) (unpublished) (quoting Hani & Ramiz, Inc. v. North\nPointe Ins. Co., No. 316453, 2014 WL 523492, at *3 (Mich. Ct. App.\nFeb. 4, 2014) (unpublished per curiam opinion)); accord Quality\nTime, Inc. v. West Bend Mut. Ins. Co., No. 12-1008-JTM, 2013 WL\n474289, at *13 (D. Kan. Feb. 7, 2013) (\"Because the term decay\nmay, consistent with popular understanding, be construed to mean\ngradual deterioration or degradation, without organic\ndecomposition, this is how the court construes the term here.\");\nNe. Ctr. Inc. v. St. Paul Fire and Marine Ins. Co., No. 03-246-\nTS, 2006 WL 842396, at *5 (N.D. Ind. Mar. 28, 2006) (concluding\nthat \"decay\" \"is not ordinarily understood to mean only 'rot,'\"\nbut rather connotes \"a progressive failure in strength or\nsoundness\" or \"wasting and wearing away.\").\n\n\n - 15 -\n\f Second, the Insurance Company complains that the\n\ndistrict court's chosen definition would encompass all collapses,\n\nbecause \"it is difficult to imagine any collapse, of any structure,\n\nbeing caused by something other than 'decay.'\" But, even if the\n\nInsurance Company did not intend to provide coverage for collapses\n\nlike the one in question, that is a self-inflicted problem. The\n\nInsurance Company, which wrote the Policy, could simply have\n\ndefined \"decay\" narrowly or limited the coverage period. Despite\n\nthe Insurance Company's protestations, our interpretation of the\n\nPolicy would not result in coverage for all collapses. As the\n\ndistrict court correctly noted, \"[t]he insured still has to prove\n\nthat one of the . . . enumerated causes of loss contributed to the\n\ncollapse, and where an insured relies on hidden decay, the insured\n\nstill has to show a gradual deterioration or decline in strength\n\nor soundness that was not apparent to the insured.\" Easthampton,\n\n322 F. Supp. 3d at 241.\n\n Finally, the Insurance Company argues that the district\n\ncourt's decision \"cannot be reconciled with [the First Circuit's]\n\nopinion in Parker v. Worcester Ins. Co., 247 F.3d 1 (1st Cir.\n\n2001).\" In that case, the plaintiff homeowner obtained homeowner's\n\ninsurance shortly after acquiring her Connecticut home. Parker,\n\n247 F.3d at 2. Soon after moving in, she noticed hairline cracks\n\nin the concrete walls of the basement but disregarded them as\n\ncosmetic. Id. Approximately ten years later, she \"noticed that\n\n\n - 16 -\n\fthe cracks were growing larger,\" threatening the home's\n\nfoundation, and filed a claim for collapse with the defendant\n\ninsurer.5 Id. The insurer denied coverage based on an engineering\n\nreport which concluded that the cracks were caused by \"defective\n\nconcrete\" and \"high lateral earth pressures due to poor drainage.\"\n\nId. at 3.\n\n The district court granted summary judgment for the\n\ninsurer, finding that the claim was time-barred. Id. at 3-4. This\n\ncourt reversed, concluding that the Connecticut Supreme Court6\n\nwould likely toll the limitations period until \"the point of real\n\nor imputed knowledge of such a threat [of loss].\" Id. at 5.\n\nHowever, in dicta, the decision expressed skepticism as to the\n\nmerits of the claim, cautioning that the policy excluded coverage\n\nfor loss \"due to faulty construction of the foundation.\" Id. at\n\n6. While there was a coverage provision for \"hidden decay,\" the\n\ndecision also stated that \"'decay' is not a backdoor to coverage\n\nfor poor construction materials and workmanship.\" Id.\n\n Here, because the second and third layers of the ceiling\n\nwere never fastened to the joists, the Insurance Company argues\n\n\n 5In Connecticut, a property owner may file a claim for\ncollapse \"as soon as structural integrity is substantially\nimpaired.\" Parker, 247 F.3d at 4 (citing Beach v. Middlesex Mut.\nAssurance Co., 532 A.2d 1297, 1300-01 (Conn. 1987)).\n 6In Parker, although the case was filed in Massachusetts,\nthe parties agreed that Connecticut law controlled. 247 F.3d at\n3.\n\n\n - 17 -\n\fthat the collapse was attributable to defective workmanship and\n\nthat the above-quoted dicta from Parker compels reversal. It\n\nargues that to do otherwise would be to \"sneak in through the\n\nbackdoor of coverage in the guise of 'hidden decay.'\" In support,\n\nthe Insurance Company claims that \"[t]he policy language in the\n\ntwo [cases] is essentially the same.\"\n\n Even ignoring the fact that the cited language was dicta,\n\nwhich is not binding, there are important distinctions between\n\nParker and this case. In Parker, the insurer limited coverage for\n\ncollapses attributable to \"defective material or methods\" only to\n\nsituations where the collapse occurred \"during construction.\" 247\n\nF.3d at 6. By contrast, in this case, the Insurance Company\n\nexplicitly granted coverage for collapses occurring after\n\nconstruction, provided the collapse was caused in part by hidden\n\ndecay. Moreover, in Parker, because the concrete that caused the\n\ncollapse was defective to begin with, it was doubtful that it\n\n\"could be called 'decay,'\" so the hidden decay provision was\n\ninapplicable. Id. at 6. Here, even assuming that the ceiling as\n\nput together at the time of collapse was defective, the Malo report\n\nestablishes that the cause of the collapse was the progressive\n\nweakening of the smooth nails connecting the first layer of the\n\nceiling to the joists. Our holding is not inconsistent with\n\nParker.\n\n\n\n\n - 18 -\n\f IV. Conclusion\n\n Because ambiguities in the Policy result in coverage for\n\nthe collapse, we need not consider the application of the general\n\nexclusions. For the foregoing reasons, the judgment of the\n\ndistrict court is AFFIRMED. Costs are awarded to the Church.\n\n\n\n\n - 19 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: EASTHAMPTON CONGREGATIONAL CHURCH, Plaintiff, Appellee, v. CHURCH MUTUAL INSURANCE COMPANY, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 18-1881\\n\\n EASTHAMPTON CONGREGATIONAL CHURCH,\\n\\n Plaintiff, Appellee,\\n\\n v.\\n\\n CHURCH MUTUAL INSURANCE COMPANY,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Katherine A. Robertson, Magistrate Judge]\\n\\n\\n Before\\n\\n Lynch, Circuit Judge,\\n Souter, Associate Justice,*\\n and Stahl, Circuit Judge.\\n\\n\\n John Egan, with whom Rubin and Rudman, LLP was on brief, for\\nappellant.\\n William P. Rose, with whom Melick & Porter LLP was on brief,\\nfor appellee.\\n\\n\\n February 22, 2019\\n\\n\\n\\n\\n * Hon. David H. Souter, Associate Justice (Ret.) of the\\nSupreme Court of the United States, sitting by designation.\\n\\f STAHL, Circuit Judge. This appeal requires the\\n\\ninterpretation of words and terms in an insurance policy.\\n\\nPlaintiff-Appellee Easthampton Congregational Church (the\\n\\n\\\"Church\\\") had a property insurance policy (the \\\"Policy\\\") with\\n\\nDefendant-Appellant Church Mutual Insurance Company (the\\n\\n\\\"Insurance Company\\\"). On April 25, 2016, the ceiling in one\\n\\nsection of the Church collapsed. The Church filed a claim pursuant\\n\\nto the Policy, which the Insurance Company denied. The Church\\n\\nthen filed suit, seeking a declaratory judgment that the claim was\\n\\ncovered. On cross-motions for summary judgment, the district court\\n\\nruled for the Church. Noting that the Policy did not define the\\n\\nword \\\"decay,\\\" the court adopted a dictionary definition of the\\n\\nword and used that definition to conclude that the Policy provided\\n\\ncoverage. We affirm, albeit for different reasons.\\n\\n I. Factual Background\\n\\n A. The Insurance Policy\\n\\n The Policy was in effect at the time of the collapse and\\n\\ncarries a coverage limit of $5,353,000. The parties agree that\\n\\nthe damaged section of the Church, Fellowship Hall, \\\"is among the\\n\\n[covered] premises described in the [P]olicy's Declarations Page.\\\"\\n\\n The coverage provisions are governed by two primary\\n\\nforms. The first is the \\\"Building and Personal Property Coverage\\n\\nForm,\\\" which covers \\\"direct physical loss of or damage to Covered\\n\\nProperty . . . caused by or resulting from any Covered Cause of\\n\\n\\n - 2 -\\n\\fLoss.\\\" The second is the \\\"Causes of Loss - Special Form.\\\" That\\n\\nform sets forth various exclusions and limitations in Sections B\\n\\nand C, respectively.\\n\\n The Insurance Company argues that two exclusionary\\n\\nclauses are relevant to this case. First, in Section B-2(d), the\\n\\nPolicy includes a \\\"Wear and Tear Exclusion\\\" which states:\\n\\n We will not pay for loss or damage caused by\\n or resulting from any of the following:\\n\\n . . .\\n\\n d. (1) Wear and tear;\\n (2) Rust, or other corrosion, decay,\\n deterioration, hidden or latent\\n defect, or any quality in property\\n that causes it to damage or destroy\\n itself;[1]\\n\\nSecond, in Section B-3(c), the Policy includes a \\\"Faulty\\n\\nConstruction Exclusion\\\" which excludes coverage for:\\n\\n loss or damage caused by or resulting from any\\n of the following [sections] but if an excluded\\n cause of loss that is listed in [the following\\n sections] results in a Covered Cause of Loss,\\n we will pay for the loss or damage caused by\\n that Covered Cause of Loss.\\n\\n . . .\\n\\n c. Faulty, inadequate, or defective:\\n\\n . . .\\n\\n\\n\\n 1 The Insurance Company did not cite the exclusions for \\\"wear\\nand tear\\\" and for \\\"any quality in property that causes it to damage\\nor destroy itself\\\" in its letters to the Church denying coverage,\\nthough it did raise them before the district court.\\n\\n\\n - 3 -\\n\\f (2) Design, specifications,\\n workmanship, repair, construction,\\n renovation, remodeling, grading,\\n compaction;\\n (3) Materials used in repair,\\n construction, renovation, or\\n remodeling; or\\n (4) Maintenance;\\n\\n of part or all of any property on or off\\n the described premises.\\n\\n In Section B-2(j), the Policy also includes a \\\"Collapse\\n\\nExclusion\\\" which excludes coverage for:\\n\\n Collapse, except as provided below in the\\n Additional Coverage - Collapse [provision].\\n But if collapse results in a Covered Cause of\\n Loss at the described premises, we will pay\\n for the loss or damage caused by that Covered\\n Cause of Loss.\\n\\nThe Additional Coverage - Collapse provision, Section D-2, in turn\\n\\nstates:\\n\\n The term Covered Cause of Loss includes the\\n Additional Coverage - Collapse as described\\n and limited in [the sections] below.\\n\\n 1. With respect to buildings:\\n\\n a. Collapse means an abrupt falling\\n down or caving in of a building or\\n any part of a building with the\\n result that the building or part of\\n the building cannot be occupied for\\n its intended purpose;\\n\\n . . .\\n\\n 2. We will pay for direct physical loss or\\n damage to Covered Property, caused by\\n collapse of a [Covered Property] . . . if\\n the collapse is caused by one or more of\\n the following:\\n\\n\\n - 4 -\\n\\f . . .\\n\\n b. Decay that is hidden from view,\\n unless the presence of such decay is\\n known to an insured prior to\\n collapse;\\n\\n . . .\\n\\n f. Use of defective material or methods\\n in construction, remodeling, or\\n renovation if the collapse occurs\\n during the course of the\\n construction, remodeling, or\\n renovation. However, if the\\n collapse occurs after construction,\\n remodeling, or renovation is\\n complete and is caused in part by a\\n cause of loss listed in [the\\n previous sections]; we will pay for\\n the loss or damage even if use of\\n defective material or methods, in\\n construction, remodeling, or\\n renovation, contributes to the\\n collapse.\\n\\nTherefore, although Section B-2(j) excludes coverage for collapses\\n\\ngenerally, Section D-2 effectively reinstates coverage under\\n\\nlimited circumstances, including where the collapse was caused in\\n\\npart by \\\"[d]ecay that is hidden from view.\\\" It is noted that the\\n\\nPolicy does not define the word \\\"decay.\\\"\\n\\n B. The Ceiling Collapse\\n\\n On April 25, 2016, the ceiling in the Fellowship section\\n\\nof the Church fell to the floor. The Church promptly reported the\\n\\nincident to the Insurance Company. Eight days later, at the\\n\\nrequest of the Insurance Company, forensic engineer Joseph Malo\\n\\n\\n\\n - 5 -\\n\\finspected the ceiling collapse and detailed his findings in a\\n\\nwritten report. The parties accepted the contents of Malo's report\\n\\nas \\\"agreed material facts.\\\"\\n\\n In that report, Malo wrote that the ceiling \\\"consist[ed]\\n\\nof three different types of materials installed one over the other\\n\\nwith a total thickness of approximately 3 [and] 3/4 inches.\\\" \\\"The\\n\\noriginal ceiling [was] constructed with wood lath and plaster\\n\\nattached to boards\\\" spaced twelve inches apart. The boards\\n\\nthemselves \\\"were attached to the ceiling joists\\\" by \\\"cut nails\\n\\nwith approximately 1 [and] 3/4-inch penetration.\\\" Although the\\n\\nboards were nailed to the joists, the wood lath and plaster were\\n\\nattached only to the boards. Sometime after the original ceiling\\n\\nwas constructed, two more ceiling layers were installed. The\\n\\nsecond layer consisted of drywall affixed to boards, which were\\n\\nthen nailed directly into the plaster. The third layer consisted\\n\\nof ceiling tiles that were attached directly to the surface of the\\n\\ndrywall. Neither the second nor third layers were attached to the\\n\\nceiling joists. In addition, there was approximately ten inches\\n\\nof insulation blown into the space above the ceiling. Therefore,\\n\\nthe only support for the three layers of ceiling materials and\\n\\ninsulation was the original nails that fastened the first layer of\\n\\nboards to the ceiling joists.\\n\\n Malo concluded that \\\"nail withdrawal\\\" by the smooth\\n\\nnails used to secure the original boards to the joists caused the\\n\\n\\n - 6 -\\n\\fceiling collapse. He observed that \\\"cyclical volumetric changes\\n\\ninduce[d] by normal temperature and moisture changes in the\\n\\nbuilding materials\\\" had caused the nails' connection to the joists\\n\\nto weaken. Eventually, the nails completely pulled out, \\\"leaving\\n\\nonly holes in the bottoms of the ceiling joists.\\\" In other words,\\n\\nthe collapse was caused by the \\\"progressive failure of the\\n\\nfasteners used to attach the layers of ceiling to the ceiling\\n\\njoists due to the weight of the ceiling.\\\"\\n\\n C. Denial of Coverage\\n\\n On May 19, 2016, the Insurance Company denied the\\n\\nChurch's claim, relying on Malo's report. As relevant here, the\\n\\nInsurance Coverage cited the Faulty Construction Exclusion,\\n\\nstating that \\\"[t]he fasteners used to uphold the ceiling were\\n\\ninadequate for the size/weight of the ceiling, and the ceiling\\n\\nsystem was not adequately fastened to the structure.\\\" The Church\\n\\nasked the Insurance Company to reconsider its decision, arguing\\n\\nthat the collapse was covered under the Additional Coverage -\\n\\nCollapse provision. However, on July 1, 2016, the Insurance\\n\\nCompany denied the reconsideration request.\\n\\n On September 26, 2016, the Church, through counsel, sent\\n\\nthe Insurance Company a letter detailing its position that the\\n\\nloss caused by the ceiling collapse was a covered event under the\\n\\nPolicy. The Church disputed the application of the Faulty\\n\\nConstruction Exclusion, claiming that because the ceiling lasted\\n\\n\\n - 7 -\\n\\fapproximately sixty years, its construction was \\\"entirely\\n\\neffective.\\\" In addition, the Church argued that the collapse was\\n\\ncaused by hidden decay and so was covered by the Additional\\n\\nCoverage - Collapse provision. It noted that Malo's report\\n\\nconcluded that the collapse occurred because of nail withdrawal,\\n\\nwhich was a \\\"progressive failure\\\" that \\\"could have taken a period\\n\\nof years to occur.\\\"\\n\\n The Insurance Company replied by letter through counsel\\n\\non October 21, 2016, reiterating its prior position that the\\n\\ncollapse occurred because of \\\"faulty construction.\\\"\\n\\nSpecifically, it argued that Malo's report concluded that the\\n\\nceiling's construction was flawed because the second and third\\n\\nlayers were not securely fastened to the ceiling joists. The\\n\\nletter also rejected the Church's allegation that hidden decay\\n\\ncontributed to the collapse.\\n\\n II. Procedural Background\\n\\n The Church filed suit in Massachusetts Superior Court in\\n\\nApril 2017 seeking a declaratory judgment that the Policy provided\\n\\ncoverage for the collapse. The Insurance Company timely removed\\n\\nthe case to federal court based on diversity jurisdiction.2 Both\\n\\n\\n\\n\\n 2 The Church is an organization located in Easthampton,\\nMassachusetts; the Insurance Company is a corporation with its\\nprincipal place of business in Merrill, Wisconsin; and the amount\\nin controversy exceeds $75,000.\\n\\n\\n - 8 -\\n\\fparties consented to have the case heard by a magistrate judge and\\n\\nfiled cross-motions for summary judgment.\\n\\n On May 10, 2018, the district court granted summary\\n\\njudgment for the Church. Easthampton Congregational Church v.\\n\\nChurch Mut. Ins. Co., 322 F. Supp. 3d 230 (D. Mass. 2018). The\\n\\ncourt concluded that the collapse resulted at least in part from\\n\\n\\\"hidden decay\\\" such that the Additional Coverage - Collapse\\n\\nprovision applied. Id. at 235-41. After noting that the Policy\\n\\nfailed to define \\\"decay,\\\" the court looked to dictionary\\n\\ndefinitions of that term and adopted a definition that encompassed\\n\\n\\\"a gradual deterioration or decline in strength or soundness.\\\"\\n\\nId. at 236-37. From there, the court held that there was\\n\\nsufficient evidence (i.e., the Malo report) to show that the\\n\\ncollapse \\\"was 'caused in part' by 'decay'\\\" \\\"hidden from view\\\" --\\n\\nnamely, the gradual nail withdrawal. Id. at 236-38. Accordingly,\\n\\nit held that the collapse fell within the Additional Coverage -\\n\\nCollapse provision. Id. Because that provision expressly provided\\n\\ncoverage, the court declined to address the Insurance Company's\\n\\narguments that the Wear and Tear and Faulty Construction Exclusions\\n\\napplied. Id. at 241-42. This timely appeal followed.\\n\\n III. Analysis\\n\\n A. Legal Framework\\n\\n We review the district court's grant of summary judgment\\n\\nde novo. AJC Int'l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3\\n\\n\\n - 9 -\\n\\f(1st Cir. 2015). \\\"Cross motions [for summary judgment] simply\\n\\nrequire us to determine whether either of the parties deserves\\n\\njudgment as a matter of law on facts that are not disputed.\\\"\\n\\nLittlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004)\\n\\n(quotation marks and citation omitted).\\n\\n \\\"Because this case is brought in diversity jurisdiction,\\n\\nwe must look to state law for the substantive rules of decision.\\\"\\n\\nSanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)\\n\\n(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The\\n\\nparties agree that Massachusetts law controls the disposition of\\n\\nthis case. See Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st\\n\\nCir. 2011) (\\\"In determining which state's law applies, a diversity\\n\\ncourt is free to honor the parties' reasonable agreement.\\\").\\n\\n \\\"[T]he construction of an insurance policy is a question\\n\\nof law . . . .\\\" Lind-Hernández v. Hosp. Episcopal San Lucas\\n\\nGuayama, 898 F.3d 99, 103 (1st Cir. 2018) (internal quotation marks\\n\\nand citation omitted). \\\"Under Massachusetts law, we construe an\\n\\ninsurance policy under the general rules of contract\\n\\ninterpretation, beginning with the actual language of the\\n\\npolicies, given its plain and ordinary meaning.\\\" AIG Prop. Cas.\\n\\nCo. v. Cosby, 892 F.3d 25, 27 (1st Cir. 2018) (internal quotation\\n\\nmarks, alterations, and citation omitted).\\n\\n As a general matter, in Massachusetts, the insured bears\\n\\nthe \\\"initial burden of showing that the case involves a generally\\n\\n\\n - 10 -\\n\\fcovered risk under the policy.\\\" Stor/Gard, Inc. v. Strathmore\\n\\nIns. Co., 717 F.3d 242, 247 (1st Cir. 2013) (citation omitted).\\n\\nWhere, as is here, the parties do not dispute that the incident\\n\\nwas a generally covered risk, the burden shifts such that the\\n\\ninsurer must demonstrate that an exclusion precludes coverage.\\n\\nClark Sch. for Creative Learning, Inc. v. Phila. Indem. Ins. Co.,\\n\\n734 F.3d 51, 55 & n.1 (1st Cir. 2013). \\\"And if the insurer\\n\\nsatisfies that burden, the burden shifts back to the insureds to\\n\\nshow an exception to the exclusion holds sway.\\\" Stor/Gard, Inc.,\\n\\n717 F.3d at 247 (citation omitted).\\n\\n However, where \\\"a term is 'susceptible of more than one\\n\\nmeaning and reasonably intelligent persons would differ as to which\\n\\nmeaning is the proper one,' the term is ambiguous.\\\" U.S. Liab.\\n\\nIns. Co. v. Benchmark Constr. Servs., Inc., 797 F.3d 116, 119-20\\n\\n(1st Cir. 2015) (quoting Citation Ins. Co. v. Gomez, 426 Mass.\\n\\n379, 381 (1998)). To the extent an ambiguity does exist, it is\\n\\nstrictly construed against the insurer. See Metro. Prop. & Cas.\\n\\nIns. Co. v. Morrison, 460 Mass. 352, 362-63 (2011).\\n\\n It is also a principle of Massachusetts law that \\\"[m]ore\\n\\nspecific contract terms ordinarily control over more general\\n\\ncontract terms.\\\" Davis v. Dawson, Inc., 15 F. Supp. 2d 64, 109\\n\\n(D. Mass. 1998) (citing Lawson v. Fed. Deposit Ins. Corp., 3 F.3d\\n\\n11, 17 (1st Cir. 1993)). Therefore, if a policy provision is found\\n\\n\\n\\n\\n - 11 -\\n\\fto provide for coverage, then general exclusion clauses are\\n\\ninapplicable. See id.\\n\\n B. Definition of \\\"Decay\\\"\\n\\n The parties agree that we must first determine whether\\n\\nthe hidden decay section of the Additional Coverage - Collapse\\n\\nprovision applies. If the ceiling collapse is covered by that\\n\\nsection, or if the language is ambiguous with respect to coverage,\\n\\nthen the general Faulty Construction and Wear and Tear Exclusions\\n\\nare inapplicable. The parties further agree that the nail\\n\\nwithdrawal was \\\"hidden,\\\" so that the disposition of this case turns\\n\\nat the outset on the definition and application of the word\\n\\n\\\"decay.\\\"\\n\\n As we have said, the Policy does not define \\\"decay.\\\" In\\n\\nsuch circumstances, \\\"courts often look to dictionaries for\\n\\nassistance in determining ordinary meaning.\\\" Fed. Ins. Co. v.\\n\\nRaytheon Co., 426 F.3d 491, 498-99 (1st Cir. 2005) (citation\\n\\nomitted). Here, the district court consulted two dictionaries.\\n\\nEasthampton, 322 F. Supp. 3d at 236. First, it looked to the\\n\\nMerriam-Webster Dictionary, which defined \\\"decay\\\" (in noun form)\\n\\nas a \\\"gradual decline in strength, soundness, or prosperity or in\\n\\ndegree of excellence or perfection,\\\" \\\"a wasting or wearing away,\\\"\\n\\nand a \\\"rot . . . specifically[,] aerobic decomposition of proteins\\n\\nchiefly by bacteria.\\\" Decay, Merriam-Webster Dictionary,\\n\\navailable at https://www.merriam-webster.com/dictionary/decay.\\n\\n\\n - 12 -\\n\\fSecond, it turned to the Oxford English Dictionary, which defined\\n\\n\\\"decay\\\" as \\\"[t]he process of falling off from a prosperous or\\n\\nthriving condition; progressive decline; the condition of one who\\n\\nhas thus fallen off or declined,\\\" \\\"falling off (in quantity,\\n\\nvolume, intensity, etc.); dwindling, decrease,\\\" and \\\"the\\n\\ndestructive decomposition or wasting of organic tissue; rotting.\\\"\\n\\nDecay, Oxford English Dictionary, available at\\n\\nhttp://www.oed.com/view/Entry/48067?rskey=z7ljDr& result=1#eid.\\n\\n The district court held that \\\"[t]he most reasonable\\n\\nreading of the word 'decay' as it is used in the Policy is that it\\n\\nrefers to the broader concept of the word.\\\" Easthampton, 322 F.\\n\\nSupp. 3d at 236. That is, a \\\"gradual decline in strength\\\" or\\n\\n\\\"progressive decline\\\" as opposed to a narrower definition that\\n\\nentails organic rotting. Id. at 236-37. In support, it noted\\n\\nthat the Policy used the word \\\"rot\\\" in a separate exclusion titled\\n\\n\\\"'Fungus,' Wet Rot, Dry Rot and Bacteria.\\\" Id. at 236.\\n\\nTherefore, the district court reasoned that the Insurance Company\\n\\nmust have intended \\\"decay\\\" to mean something broader than rot.\\n\\nId. at 236-37.\\n\\n We agree with the district court's decision, although\\n\\nnot its reasoning. As used in the Policy, the word \\\"decay\\\" could\\n\\nplausibly be read to mean either \\\"progressive decline\\\" or \\\"rot.\\\"\\n\\nAccordingly, its meaning is ambiguous and that ambiguity must be\\n\\n\\n\\n\\n - 13 -\\n\\fresolved in the Church's favor.3 See U.S. Liab. Ins. Co., 797 F.3d\\n\\nat 119-21; Allmerica Fin. Corp. v. Certain Underwriters at Lloyd's,\\n\\nLondon, 449 Mass. 621, 628 (2007). On that basis alone, we affirm\\n\\nthe district court's judgment.\\n\\n We note that other courts have resolved this issue in\\n\\nthe same way. For example, in Stamm Theatres, Inc. v. Hartford\\n\\nCas. Ins. Co., 93 Cal. App. 4th 531, 535 (2001), the ceiling in\\n\\nthe insured's theater \\\"was in a state of 'imminent collapse.'\\\"\\n\\nSeveral wooden trusses supporting the ceiling had cracked\\n\\n\\\"completely through.\\\" Id. at 536. The theater produced an expert\\n\\nwho attributed the cracks to, inter alia, \\\"the increased load\\n\\ncreated by a partial reroofing.\\\" Id. The insurer produced experts\\n\\nwho similarly concluded that the cracks were caused by excessive\\n\\npressure on the trusses. Id. at 537. Considering an insurance\\n\\npolicy that, like the Policy in question here, covered losses\\n\\nattributable to \\\"hidden decay,\\\" the California Court of Appeals\\n\\nrejected the insurer's argument that the definition of \\\"decay\\\"\\n\\nshould be limited to organic rot. Id. at 538-41. In doing so,\\n\\nthe court stated that the insurer's failure to define \\\"decay,\\\"\\n\\ncoupled with the existence of multiple dictionary definitions of\\n\\n\\n\\n\\n 3 Neither party argued that the term was ambiguous at the\\ndistrict court. However, on appeal, the Church appears to have\\nraised an ambiguity argument.\\n\\n\\n - 14 -\\n\\fthe term, created an ambiguity that must be resolved in favor of\\n\\nthe insured.4 Id. at 543.\\n\\n The Insurance Company raises a variety of arguments in\\n\\nresponse, none of which are availing. First, it suggests that the\\n\\ncases the district court relied upon were inapposite because the\\n\\n\\\"'decay' that was the actual subject of each [case] was uniformly,\\n\\nand more narrowly, associated with a discrete physical impairment\\n\\nto the material quality of a component of the collapsed property.\\\"\\n\\nHowever, that argument does nothing to refute the core holding of\\n\\nthe cited cases -- namely, that those \\\"physical impairments\\\" were\\n\\ncovered because they fell within a broader definition of \\\"decay\\\"\\n\\nthat included gradual degradation.\\n\\n\\n\\n\\n 4 It is also a principle that contract terms should be\\nconstrued in their plain and ordinary meaning. AIG Prop. Cas.\\nCo., 892 F.3d at 27. While \\\"decay\\\" has a definition connoting\\n\\\"rot\\\" in the biological sciences, other courts have found that its\\n\\\"'ordinary, plain meaning' [] encompasses a 'generalized\\ndefinition of decomposition.'\\\" Joy Tabernacle—The New Testament\\nChurch v. State Farm Fire and Cas. Co., 616 F. App'x 802, 809 (6th\\nCir. 2015) (unpublished) (quoting Hani & Ramiz, Inc. v. North\\nPointe Ins. Co., No. 316453, 2014 WL 523492, at *3 (Mich. Ct. App.\\nFeb. 4, 2014) (unpublished per curiam opinion)); accord Quality\\nTime, Inc. v. West Bend Mut. Ins. Co., No. 12-1008-JTM, 2013 WL\\n474289, at *13 (D. Kan. Feb. 7, 2013) (\\\"Because the term decay\\nmay, consistent with popular understanding, be construed to mean\\ngradual deterioration or degradation, without organic\\ndecomposition, this is how the court construes the term here.\\\");\\nNe. Ctr. Inc. v. St. Paul Fire and Marine Ins. Co., No. 03-246-\\nTS, 2006 WL 842396, at *5 (N.D. Ind. Mar. 28, 2006) (concluding\\nthat \\\"decay\\\" \\\"is not ordinarily understood to mean only 'rot,'\\\"\\nbut rather connotes \\\"a progressive failure in strength or\\nsoundness\\\" or \\\"wasting and wearing away.\\\").\\n\\n\\n - 15 -\\n\\f Second, the Insurance Company complains that the\\n\\ndistrict court's chosen definition would encompass all collapses,\\n\\nbecause \\\"it is difficult to imagine any collapse, of any structure,\\n\\nbeing caused by something other than 'decay.'\\\" But, even if the\\n\\nInsurance Company did not intend to provide coverage for collapses\\n\\nlike the one in question, that is a self-inflicted problem. The\\n\\nInsurance Company, which wrote the Policy, could simply have\\n\\ndefined \\\"decay\\\" narrowly or limited the coverage period. Despite\\n\\nthe Insurance Company's protestations, our interpretation of the\\n\\nPolicy would not result in coverage for all collapses. As the\\n\\ndistrict court correctly noted, \\\"[t]he insured still has to prove\\n\\nthat one of the . . . enumerated causes of loss contributed to the\\n\\ncollapse, and where an insured relies on hidden decay, the insured\\n\\nstill has to show a gradual deterioration or decline in strength\\n\\nor soundness that was not apparent to the insured.\\\" Easthampton,\\n\\n322 F. Supp. 3d at 241.\\n\\n Finally, the Insurance Company argues that the district\\n\\ncourt's decision \\\"cannot be reconciled with [the First Circuit's]\\n\\nopinion in Parker v. Worcester Ins. Co., 247 F.3d 1 (1st Cir.\\n\\n2001).\\\" In that case, the plaintiff homeowner obtained homeowner's\\n\\ninsurance shortly after acquiring her Connecticut home. Parker,\\n\\n247 F.3d at 2. Soon after moving in, she noticed hairline cracks\\n\\nin the concrete walls of the basement but disregarded them as\\n\\ncosmetic. Id. Approximately ten years later, she \\\"noticed that\\n\\n\\n - 16 -\\n\\fthe cracks were growing larger,\\\" threatening the home's\\n\\nfoundation, and filed a claim for collapse with the defendant\\n\\ninsurer.5 Id. The insurer denied coverage based on an engineering\\n\\nreport which concluded that the cracks were caused by \\\"defective\\n\\nconcrete\\\" and \\\"high lateral earth pressures due to poor drainage.\\\"\\n\\nId. at 3.\\n\\n The district court granted summary judgment for the\\n\\ninsurer, finding that the claim was time-barred. Id. at 3-4. This\\n\\ncourt reversed, concluding that the Connecticut Supreme Court6\\n\\nwould likely toll the limitations period until \\\"the point of real\\n\\nor imputed knowledge of such a threat [of loss].\\\" Id. at 5.\\n\\nHowever, in dicta, the decision expressed skepticism as to the\\n\\nmerits of the claim, cautioning that the policy excluded coverage\\n\\nfor loss \\\"due to faulty construction of the foundation.\\\" Id. at\\n\\n6. While there was a coverage provision for \\\"hidden decay,\\\" the\\n\\ndecision also stated that \\\"'decay' is not a backdoor to coverage\\n\\nfor poor construction materials and workmanship.\\\" Id.\\n\\n Here, because the second and third layers of the ceiling\\n\\nwere never fastened to the joists, the Insurance Company argues\\n\\n\\n 5In Connecticut, a property owner may file a claim for\\ncollapse \\\"as soon as structural integrity is substantially\\nimpaired.\\\" Parker, 247 F.3d at 4 (citing Beach v. Middlesex Mut.\\nAssurance Co., 532 A.2d 1297, 1300-01 (Conn. 1987)).\\n 6In Parker, although the case was filed in Massachusetts,\\nthe parties agreed that Connecticut law controlled. 247 F.3d at\\n3.\\n\\n\\n - 17 -\\n\\fthat the collapse was attributable to defective workmanship and\\n\\nthat the above-quoted dicta from Parker compels reversal. It\\n\\nargues that to do otherwise would be to \\\"sneak in through the\\n\\nbackdoor of coverage in the guise of 'hidden decay.'\\\" In support,\\n\\nthe Insurance Company claims that \\\"[t]he policy language in the\\n\\ntwo [cases] is essentially the same.\\\"\\n\\n Even ignoring the fact that the cited language was dicta,\\n\\nwhich is not binding, there are important distinctions between\\n\\nParker and this case. In Parker, the insurer limited coverage for\\n\\ncollapses attributable to \\\"defective material or methods\\\" only to\\n\\nsituations where the collapse occurred \\\"during construction.\\\" 247\\n\\nF.3d at 6. By contrast, in this case, the Insurance Company\\n\\nexplicitly granted coverage for collapses occurring after\\n\\nconstruction, provided the collapse was caused in part by hidden\\n\\ndecay. Moreover, in Parker, because the concrete that caused the\\n\\ncollapse was defective to begin with, it was doubtful that it\\n\\n\\\"could be called 'decay,'\\\" so the hidden decay provision was\\n\\ninapplicable. Id. at 6. Here, even assuming that the ceiling as\\n\\nput together at the time of collapse was defective, the Malo report\\n\\nestablishes that the cause of the collapse was the progressive\\n\\nweakening of the smooth nails connecting the first layer of the\\n\\nceiling to the joists. Our holding is not inconsistent with\\n\\nParker.\\n\\n\\n\\n\\n - 18 -\\n\\f IV. Conclusion\\n\\n Because ambiguities in the Policy result in coverage for\\n\\nthe collapse, we need not consider the application of the general\\n\\nexclusions. For the foregoing reasons, the judgment of the\\n\\ndistrict court is AFFIRMED. Costs are awarded to the Church.\\n\\n\\n\\n\\n - 19 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":480,"cells":{"id":{"kind":"number","value":8443881,"string":"8,443,881"},"name":{"kind":"string","value":"IN RE: the FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico, Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors, In re: the Financial Oversight and Management Board for Puerto Rico, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico, Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors"},"name_abbreviation":{"kind":"string","value":"Méndez-Núñez v. Fin. Oversight & Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.)"},"decision_date":{"kind":"string","value":"2019-02-22"},"docket_number":{"kind":"string","value":"No. 18-1773; No. 18-1777"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415310/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443881/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: IN RE: the FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico, Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors, In re: the Financial Oversight and Management Board for Puerto Rico, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico, Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: IN RE: the FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico, Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors, In re: the Financial Oversight and Management Board for Puerto Rico, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico, Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":481,"cells":{"id":{"kind":"number","value":4594151,"string":"4,594,151"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Gregory OWENS, Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Owens"},"decision_date":{"kind":"string","value":"2019-02-26"},"docket_number":{"kind":"string","value":"16-1945P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Torruella, Thompson\", \"parties\": \"\", \"opinions\": [{\"author\": \"TORRUELLA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 16-1945\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n GREGORY OWENS,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n [Hon. Nancy Torresen, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Thompson, Circuit Judges.\\n\\n\\n Sarah A. Churchill, with whom Nichols & Churchill, P.A., was\\non brief, for appellant.\\n John M. Pellettieri, Attorney, Appellate Section, Criminal\\nDivision, U.S. Department of Justice, with whom Sangita K. Rao,\\nAttorney, Appellate Section, Criminal Division, John P. Cronan,\\nActing Assistant Attorney General, Criminal Division, Matthew S.\\nMiner, Deputy Assistant Attorney General, Criminal Division,\\nHalsey B. Frank, United States Attorney, Darcie McElwee, Assistant\\nUnited States Attorney, and James W. Chapman, Assistant United\\nStates Attorney, were on brief, for appellee.\\n\\n\\n\\n February 26, 2019\\n\\f TORRUELLA, Circuit Judge. This is a case about a double\\n\\nlife, an attempted uxoricide, and excellent police work.\\n\\nDefendant-Appellant Gregory Owens (\\\"Owens\\\") was convicted of\\n\\ninterstate domestic violence in violation of 18 U.S.C. § 2261(a)(1)\\n\\nand (b)(2); and discharge of a firearm during and in relation to\\n\\na crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).\\n\\nHe was sentenced to life in prison. On appeal, Owens challenges\\n\\nthe sufficiency of evidence supporting his convictions, the\\n\\nreasonableness of his sentence, and the district court's denial of\\n\\nhis pretrial motions seeking to suppress evidence and dismiss the\\n\\nindictment on double jeopardy grounds. After careful review, we\\n\\nfind Owens's convictions supported by sufficient evidence, his\\n\\nsentence substantively reasonable, and the motions for suppression\\n\\nand dismissal properly denied. Seeing no reason to vacate Owens's\\n\\nconvictions or sentence on the grounds that he has presented, we\\n\\naffirm.\\n\\n I. BACKGROUND\\n\\nA. Factual Background\\n\\n 1. The Home Invasion\\n\\n In the early morning hours of December 18, 2014, at\\n\\napproximately 2:45 a.m., Carol Chabot (\\\"Carol\\\") awoke to a\\n\\nshuffling noise coming from the downstairs of her two-story house\\n\\nin Saco, Maine. Sensing something was not right, she woke her\\n\\n\\n -2-\\n\\fhusband, Steve Chabot (\\\"Steve\\\"), who lay beside her. Steve,\\n\\nhowever, did not hear the noise but told Carol \\\"it's probably\\n\\nRachel\\\" who caused the noise — with \\\"Rachel\\\" being Rachel Owens\\n\\n(\\\"Rachel\\\"), a family friend who was staying the night. Then Steve\\n\\nrolled over to go back to sleep. Undeterred, Carol got out of bed\\n\\nto investigate.\\n\\n As she walked down the upstairs hallway, toward the spare\\n\\nbedroom where Rachel was staying, Carol heard a second noise --\\n\\nthis time the loud sound of glass shattering. With haste, she\\n\\nlooked into the spare bedroom and noticed Rachel was sound asleep\\n\\nin bed. Steve also heard the loud noise and hurried out of bed to\\n\\ncheck what was going on. He peeked out of his bedroom towards the\\n\\nstaircase and saw an intruder racing up the stairs with a gun in\\n\\nhis right hand. The intruder, later identified as Owens, was\\n\\napproximately 5 feet 9 inches tall with a slim, athletic build; he\\n\\nwore dark clothing, gloves, and a black mask with a single opening\\n\\nat the eyes and glasses protruding from it.\\n\\n Steve shouted an expletive at the intruder and dashed\\n\\nback into the master bedroom. Carol, who did not see the intruder\\n\\nbut saw a look of horror on her husband's face, ran into a third\\n\\nbedroom used as a home office and barricaded herself inside. The\\n\\nintruder followed her and tried to force his way into the room,\\n\\nbut, after a few failed attempts, suddenly stopped. He then walked\\n\\n\\n -3-\\n\\ftoward the room where Rachel lay and fired at her three times,\\n\\nhitting her in the head, arm, and torso.\\n\\n Having heard the gun shots, Steve peeked out of the\\n\\nmaster bedroom again. He saw the intruder about two feet away,\\n\\nheading towards him. They looked at each other face to face.\\n\\nSteve immediately slammed the door shut and held his arm against\\n\\nit. Undaunted, the intruder kicked the door in, looked inside\\n\\nthrough the now slightly-opened doorway, and fired shots through\\n\\nthe door, striking Steve in the arm, neck, and rib area.1 The\\n\\nintruder then abandoned the Chabot residence. He did not take any\\n\\nvaluables with him.\\n\\n 2. The Crime Scene\\n\\n In response to a 911 call from Steve Chabot received at\\n\\n2:47 a.m., police arrived at the Chabot residence. During their\\n\\ninvestigation of the crime scene, officers learned that the\\n\\nintruder gained entry into the garage through a door located in\\n\\nthe back of the house, and into the interior of the Chabot\\n\\nresidence through a door located in the garage that led to the\\n\\nkitchen. The upper part of this garage door was double-paned\\n\\nglass, sectioned into nine squares by wood framing. The intruder\\n\\n\\n\\n1 Both Rachel and Steve survived the incident, but it left Rachel\\nwith a bullet lodged in her brain and severely limited use of her\\nright hand.\\n\\n\\n -4-\\n\\fbroke the outer pane of the lower left square of glass, leaving\\n\\nglass shards scattered on the floor and separating the inner pane,\\n\\nwhich remained intact, from the door, thereby creating a gap that\\n\\nallowed the intruder to reach in and unlock the deadbolt. Officers\\n\\nretrieved human hair from the area between the shattered outer\\n\\npane of glass and the inner pane of glass, and swabbed the area\\n\\nfor DNA.\\n\\n Police officers also recovered numerous .9mm shell\\n\\ncasings stamped \\\"WCC 1987,\\\" later identified as 27-year-old\\n\\nWestern Cartridge Company casings, from the second floor of the\\n\\nhouse.\\n\\n Finally, while inspecting the periphery of the Chabot\\n\\nresidence, officers found a footprint in the damp dirt outside the\\n\\nfirst-floor window near the garage and proceeded to make a cast of\\n\\nit.\\n\\n 3. Search, Intervention, and Interview\\n\\n At around 5:00 a.m., Maine police officers informed New\\n\\nHampshire law enforcement of the shooting at the Chabot residence.\\n\\nTwo New Hampshire police officers, Randy Dyer (\\\"Officer Dyer\\\") and\\n\\nKeith Lee (\\\"Officer Lee\\\"), were instructed to visit Owens's\\n\\nresidence in the town of Londonderry to verify the presence of his\\n\\ntwo vehicles. They were, however, instructed not to make contact\\n\\nwith Owens.\\n\\n\\n -5-\\n\\f At approximately 5:20 a.m., the two police officers\\n\\narrived at Owens's neighborhood and parked their car at the\\n\\nbeginning of Winthrop Road, the dead-end street where Owens's\\n\\nresidence was located. Under the cover of darkness, they began\\n\\nheading down Winthrop Road toward the house. At around 5:24 a.m.,\\n\\nbefore the officers could reach their destination, a state trooper\\n\\npatrol car with flashing blue lights drove near the Owens\\n\\nresidence. Contemporaneously, a light visible from the house's\\n\\nfront windows went off, making the inside of the house go dark.\\n\\nThe officers stopped the trooper and instructed him to turn off\\n\\nthe flashing lights. After this, the officers, now accompanied by\\n\\nthe trooper, continued their approach towards the residence. With\\n\\nOfficer Lee and the trooper providing cover, Officer Dyer\\n\\neventually made his way into the driveway, where he placed his\\n\\nhand on Owens's Hyundai Santa Fe SUV (\\\"Owens's vehicle\\\") and\\n\\nnoticed its hood and grill were warm.2 The officers and trooper\\n\\nthen retreated back down Winthrop Road to the staging area.\\n\\n Several minutes after arriving at the staging area, the\\n\\nofficers saw Owens's vehicle exit Winthrop Road and proceeded to\\n\\n\\n\\n2 Owens's vehicle was parked on the upper part of his driveway,\\nwith its nose facing the garage. The driveway is easily observable\\nand accessible to anyone passing by in the neighborhood. It is\\nnot enclosed in any way, nor does it have any fences or signs\\nwarning visitors to stay away.\\n\\n\\n -6-\\n\\ffollow it. The vehicle stopped at a nearby Circle K store, where\\n\\nOwens got out. The officers approached Owens and told him that\\n\\nhis wife had been shot. Owens acted surprised and complained of\\n\\nchest pains, after which the officers requested medical attention\\n\\nfor him. While waiting for the medical personnel to arrive, the\\n\\nofficers saw blood, a pair of boots with wet stains, and a computer\\n\\nhard drive inside Owens's vehicle. Owens agreed to go with the\\n\\nofficers to the police station for a videotaped interview (the\\n\\n\\\"police interview\\\") after receiving medical assistance.\\n\\n During the police interview, Owens provided a detailed\\n\\naccount of his night. Specifically, he explained, albeit with\\n\\nsome variation, that, after speaking to his wife Rachel at around\\n\\n9:15 p.m., he went to bed, but got up a few times to work on his\\n\\ncomputer on a proposal for a military consultancy contract with\\n\\nthe Ukrainian government that was due the next day. In particular,\\n\\nOwens claimed that at around 2:30 a.m. –- fifteen minutes before\\n\\nthe Chabot residence was broken into -- he sent an e-mail to one\\n\\nof his colleagues regarding a tweak to the proposal.\\n\\n Owens also admitted to leaving his home on multiple\\n\\noccasions throughout the course of the night and early morning:\\n\\nfirst, to Circle K at around 12:30 a.m. to get a soda and\\n\\ncigarettes; then, to Dunkin' Donuts between 4:15-4:45 a.m. to get\\n\\ncoffee and donuts; and finally, to Circle K again at around\\n\\n\\n -7-\\n\\f6:30 a.m. to grab another cup of coffee, at which point he came in\\n\\ncontact with officers Dyer and Lee. Furthermore, he informed the\\n\\ninterviewing officers that he was a military retiree and had what\\n\\nhe described as an \\\"arsenal\\\" of weapons in his house. After\\n\\ncollecting some evidence (e.g., DNA samples from his hands and\\n\\nmouth, clothes, etc.), the police released Owens from custody.\\n\\n 4. The Double-Life and Motive\\n\\n To fully understand the motive behind Owens's crime, we\\n\\nmust look back to the preceding decade. In 2005, Owens met Betsy\\n\\nWandtke (\\\"Wandtke\\\"), a woman from Wisconsin, in a flight back from\\n\\na hunters' rights convention, which they had both attended.3 About\\n\\nthree years later, their relationship turned into an affair. As\\n\\nthe affair progressed, Owens and Wandtke began to spend more time\\n\\ntogether -- up to ten days a month. Owens considered Wandtke his\\n\\n\\\"lover\\\" and his \\\"life.\\\" He represented to her that he was in the\\n\\nprocess of divorcing Rachel, which Wandtke was unable to\\n\\nindependently confirm, given that it was not true. To partly\\n\\nexplain his long absences when he was actually with Rachel in New\\n\\nHampshire, Owens told Wandtke that his work as a military\\n\\nconsultant required him to travel and take part in covert missions\\n\\nin places like Afghanistan.\\n\\n\\n\\n3 From the moment they met, Wandtke was aware of Owens's marriage.\\n\\n\\n -8-\\n\\f While the affair continued, in or about 2011, Rachel\\n\\nbegan to develop early-onset dementia. The responsibility of\\n\\nhaving to care for her burdened Owens, but did not deter him from\\n\\ncontinuing his affair with Wandtke. Then, on December 3, 2014,\\n\\nthe affair came to an abrupt end. Due to an inadvertent call from\\n\\nOwens's mobile phone, Wandtke discovered that Owens was leading a\\n\\ndouble-life -- his marriage with Rachel continued in regular\\n\\ncourse. Wandtke confronted Owens about it and told him their\\n\\nrelationship was over.4 After a failed attempt to convince Wandtke\\n\\nthat she misunderstood the conversation she overheard, Owens\\n\\npromised Wandtke he was going to make it up to her.\\n\\n A mere fifteen days after the breakup, the events at the\\n\\nChabot residence unfolded. Furthermore, in the days following the\\n\\nshooting, Owens contacted Wandtke via e-mail and told her that he\\n\\nwas being \\\"targeted\\\" because of his work and instructed her to \\\"go\\n\\ndark\\\" and not tell anyone about their relationship. Then, on\\n\\nDecember 31, 2014 -- thirteen days after the incident at the Chabot\\n\\nresidence and with his wife still recovering from a gunshot wound\\n\\n\\n4 Owens was with Wandtke in Wisconsin a little over a week before\\ntheir breakup. They had plans to celebrate Thanksgiving together.\\nNotwithstanding, the weekend before the holiday, Owens suddenly\\ncancelled their plans, leaving Wisconsin for a supposed emergency\\ncovert mission in Afghanistan. Then, on December 3, 2014, Wandtke\\nfound out that Owens was not in Afghanistan, but rather with Rachel\\nin New Hampshire, as the result of the accidental call made from\\nOwens's cell phone.\\n\\n\\n -9-\\n\\fto the head -- Owens unexpectedly arrived at Wandtke's doorstep\\n\\nwith a limousine and roses. Owens and Wandtke celebrated New\\n\\nYear's Eve and spent time together during the first week of 2015.\\n\\nOn January 4, 2015, Owens returned to New Hampshire. Shortly\\n\\nthereafter, on January 11, 2015, Owens was arrested.\\n\\nB. Procedural Background\\n\\n On March 11, 2015, a grand jury indicted Owens on two\\n\\ncounts: interstate domestic violence (Count One) and discharge of\\n\\na firearm during and in relation to a crime of violence (Count\\n\\nTwo). On July 6, 2015, Owens filed a motion to dismiss the\\n\\nindictment on double jeopardy grounds; a motion to suppress\\n\\nevidence gathered as the result of the entry into his property,\\n\\nnamely, into his driveway; and, a motion to suppress search\\n\\nwarrants issued and executed during the investigation for his\\n\\nvehicles and house, electronic items (e.g., an iPhone, Magellan\\n\\nGPS, etc.), and an external hard drive and a laptop computer in a\\n\\nSwiss Army case.5 The district court held an evidentiary hearing\\n\\n\\n5 Owens also moved to suppress DNA evidence obtained from a blood\\nsample collected at the Chabot residence, and from a buccal swab\\nlaw enforcement performed on his cheeks during the police\\ninterview. Owens, however, eventually withdrew his motion as to\\nthe blood sample collected from the Chabot residence.\\nNotwithstanding, we note that a heading in his brief makes specific\\nreference to the collection of the blood sample, which may be\\ninterpreted to suggest his intent to still seek suppression of the\\nDNA test results obtained therefrom. The Government attributes\\nOwens's reference to the collection of the blood sample in the\\nheading to human error. It asserts that the section with this\\n\\n -10-\\n\\fon Owens's motion to dismiss and motions to suppress. Evidence\\n\\nwas presented, including the testimony of the officer who touched\\n\\nOwens's vehicle, as well as that of the officers who drafted the\\n\\naffidavits on which the search warrants were based. Unpersuaded,\\n\\nthe district court denied Owens's motions to dismiss and to\\n\\nsuppress.\\n\\n A ten-day jury trial followed. The jury found Owens\\n\\nguilty of both counts. For these charges, the district court\\n\\nsentenced Owens to life imprisonment (240 Months on Count One and\\n\\nLife on Count Two). Owens timely appealed.\\n\\n II. ANALYSIS\\n\\nA. Motion to Suppress Evidence Gathered as a Result of Officer\\n Dyer's Entry into the Driveway\\n\\n We review a district court's denial of a motion to\\n\\nsuppress scrutinizing its factual findings for clear error and its\\n\\nlegal conclusions de novo. United States v. Flores, 888 F.3d 537,\\n\\n543 (1st Cir. 2018) (citations omitted); United States v. Brown,\\n\\n\\n\\n\\nheading actually deals with Owens's challenge to a search warrant\\naffidavit that mentions DNA evidence obtained from Owens's police\\ninterview buccal swab. See infra at 21-24. Based on the section's\\ncontent, we agree. Neither there nor anywhere else in his brief\\ndoes Owens develop an argument for suppression of the DNA test\\nresults obtained from the collection of a blood sample at the\\nChabot residence. Accordingly, Owens must \\\"forever hold [his]\\npeace\\\" with the Government's use of this evidence. United States\\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations and internal\\nquotation marks omitted).\\n\\n\\n -11-\\n\\f510 F.3d 57, 64 (1st Cir. 2007). To succeed on appeal, a defendant\\n\\n\\\"must show that no reasonable view of the evidence supports the\\n\\ndistrict court's decision.\\\" United States v. Dunbar, 553 F.3d 48,\\n\\n55 (1st Cir. 2009) (citations and internal quotation marks\\n\\nomitted).\\n\\n Owens argues that Officer Dyer's entry into his driveway\\n\\nand touching of his vehicle parked therein constituted an illegal\\n\\nsearch because the driveway formed part of his house's curtilage\\n\\nand, therefore, was protected from warrantless searches by the\\n\\nFourth Amendment. Accordingly, he sustains that the district court\\n\\nerred in denying the suppression of evidence obtained as a result\\n\\nof the search, namely, any reference to the temperature of his\\n\\nvehicle's hood and grill.\\n\\n The Fourth Amendment provides in relevant part that the\\n\\n\\\"right of the people to be secure in their persons, houses, papers,\\n\\nand effects, against unreasonable searches and seizures, shall not\\n\\nbe violated.\\\" U.S. Const. amend. IV. \\\"When the Government obtains\\n\\ninformation by physically intruding on persons, houses, papers, or\\n\\neffects, a search within the original meaning of the Fourth\\n\\nAmendment has undoubtedly occurred.\\\" Florida v. Jardines, 569\\n\\nU.S. 1, 5 (2013) (citations and internal quotation marks omitted).\\n\\n For Fourth Amendment purposes, a house's curtilage is\\n\\n\\\"the area immediately surrounding and associated with the home.\\\"\\n\\n\\n -12-\\n\\fId. at 6 (citation and internal quotation marks omitted). \\\"The\\n\\nprotection afforded [to a house's] curtilage is essentially a\\n\\nprotection of families and personal privacy in an area intimately\\n\\nlinked to the home, both physically and psychologically, where\\n\\nprivacy expectations are most heightened.\\\" California v. Ciraolo,\\n\\n476 U.S. 207, 212–13 (1986). Therefore, \\\"[w]hen a law enforcement\\n\\nofficer physically intrudes on the curtilage to gather evidence,\\n\\na search within the meaning of the Fourth Amendment has occurred.\\n\\n. . . Such conduct thus is presumptively unreasonable absent a\\n\\nwarrant.\\\" Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)\\n\\n(citation omitted).\\n\\n In determining whether a specific part of a house falls\\n\\nwithin its curtilage, we consider:\\n\\n [1] the proximity of the area claimed to be curtilage to\\n the home, [2] whether the area is included within an\\n enclosure surrounding the home, [3] the nature of the\\n uses to which the area is put, and [4] the steps taken\\n by the resident to protect the area from observation by\\n people passing by.6\\n\\nBrown, 510 F.3d at 65 (alterations in original) (quoting United\\n\\nStates v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002) (quoting United\\n\\nStates v. Dunn, 480 U.S. 294, 301 (1987))). In the instant case,\\n\\n\\n\\n6 These factors are eponymously called the Dunn factors after the\\nSupreme Court's seminal opinion in United States v. Dunn, 480 U.S.\\n294 (1987). See, e.g., United States v. Bain, 874 F.3d 1, 14 (1st\\nCir. 2017).\\n\\n\\n -13-\\n\\fhowever, we need not address these factors given that, even\\n\\nassuming that the driveway formed part of the house's curtilage,\\n\\nOfficer Dyer faced exigent circumstances when he entered the\\n\\ndriveway and placed his hand on Owens's vehicle, which\\n\\ncircumscribes his warrantless search within the bounds of the\\n\\nFourth Amendment. We explain.\\n\\n Although generally a warrant must be secured before\\n\\nsearching a home and its curtilage, \\\"the warrant requirement is\\n\\nsubject to certain reasonable exceptions.\\\" Kentucky v. King\\n\\n(King), 563 U.S. 452, 459 (2011) (citation omitted). These\\n\\nexceptions are born out of courts' need to \\\"balance the privacy-\\n\\nrelated and law enforcement-related concerns to determine if the\\n\\nintrusion was reasonable\\\" under the Fourth Amendment. Maryland v.\\n\\nKing, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531\\n\\nU.S. 326, 331 (2001)). \\\"One well-recognized exception applies\\n\\nwhen 'the exigencies of the situation make the needs of law\\n\\nenforcement so compelling that [a] warrantless search is\\n\\nobjectively reasonable under the Fourth Amendment.'\\\" King, 563\\n\\nU.S. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978));\\n\\nsee also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016)\\n\\n(\\\"The exigent circumstances exception allows a warrantless search\\n\\nwhen an emergency leaves police insufficient time to seek a\\n\\nwarrant.\\\" (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))).\\n\\n\\n -14-\\n\\fThis exception, commonly known as the \\\"exigent circumstances\\n\\nexception,\\\" has been applied in instances where the \\\"need 'to\\n\\nprevent the imminent destruction of evidence'\\\" justifies a\\n\\nwarrantless search. King, 563 U.S. at 460 (citing Brigham City,\\n\\nUtah v. Stuart, 547 U.S. 398, 403 (2006)).\\n\\n In determining whether exigent circumstances justify a\\n\\nwarrantless search, we examine the totality of the circumstances.\\n\\nMissouri v. McNeely, 569 U.S. 141, 149 (2013). Accordingly, in\\n\\nthe present case we begin by considering the gravity of the crime\\n\\nbeing investigated and the weather conditions at the time of the\\n\\nsearch to ascertain the constitutionality of Officer Dyer's\\n\\nactions. Officer Dyer was investigating a crime of the most\\n\\nserious nature, a potential double-homicide, on a cold December\\n\\nmorning. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); United\\n\\nStates v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985) (listing\\n\\nthe \\\"gravity of the underlying offense\\\" as one of the factors that\\n\\ncourts must consider \\\"[i]n determining whether the circumstances\\n\\nof a case fall into one of the emergency conditions characterized\\n\\nas exigent circumstances\\\"). As conceded by Owens's counsel at\\n\\noral argument, the temperature in Londonderry, New Hampshire at\\n\\nthe time of the search was 30 degrees Fahrenheit. In this cold\\n\\nweather, it was reasonable for Officer Dyer to believe that any\\n\\nwarmth emanating from the vehicle -- the evidence -- would evanesce\\n\\n\\n -15-\\n\\for be destroyed before he could obtain a search warrant.\\n\\n It is not unprecedented to make a finding of exigency\\n\\nbased on a naturally occurring event's destructive consequence\\n\\nover critical evidence. In McNeely, the Supreme Court recognized\\n\\nthat the \\\"the natural dissipation of alcohol in the blood may\\n\\nsupport a finding of exigency in . . . specific case[s].\\\" 569\\n\\nU.S. at 156. Such was the case in Schmerber, where the Court\\n\\nconcluded that \\\"further delay in order to secure a warrant after\\n\\nthe time spent investigating the scene of the accident and\\n\\ntransporting the injured suspect to the hospital to receive\\n\\ntreatment would have threatened the destruction of evidence\\\" given\\n\\nthat it would have \\\"negatively affect[ed] the probative value of\\n\\nthe [blood alcohol test] results.\\\" McNeely, 569 U.S. at 152\\n\\n(citing Schmerber v. California, 384 U.S. 757, 770-71 (1966)).\\n\\n We do not find it difficult to draw parallels between\\n\\nthe exigent circumstances found in Schmerber and those in the\\n\\ninstant case. Unlike other \\\"destruction-of-evidence cases\\\" in\\n\\nwhich a \\\"suspect has control over easily disposable evidence,\\\"\\n\\nhere, like in Schmerber, law enforcement dealt with the type of\\n\\n\\\"evidence [that]. . . naturally dissipates over time in a gradual\\n\\nand relatively predictable manner.\\\" Id. at 153. Just as the\\n\\npassing of time negatively affected the probative value of the\\n\\nblood-alcohol test in Schmerber, it negatively affected the\\n\\n\\n -16-\\n\\fprobative value of Officer Dyer's gauging of the temperature of\\n\\nOwens's vehicle through his sense of touch, and, as such,\\n\\nthreatened the destruction or loss of evidence. See id. at 152.\\n\\n The natural dissipation of the vehicle's heat, however,\\n\\nwas not the only way the evidence could have been lost in the\\n\\npresent case. If Owens turned on his vehicle's engine, as he\\n\\neventually did, the evidence would have likewise been destroyed.\\n\\nIgnition would have made it practically impossible for law\\n\\nenforcement to know, based on touch, whether the vehicle was\\n\\npreviously warm. In deciding whether to enter the driveway and\\n\\ntouch Owens's vehicle, Officer Dyer was \\\"forced to make [a] split-\\n\\nsecond judgment[] -- in circumstances that [were] tense,\\n\\nuncertain, and rapidly evolving.\\\" United States v. Almonte-Báez,\\n\\n857 F.3d 27, 31 (1st Cir. 2017) (quoting King, 563 U.S. at 466).7\\n\\nBecause a light inside Owens's house was shut off a few minutes\\n\\nbefore his entry into the driveway, Officer Dyer had an objectively\\n\\nreasonable basis to believe Owens was awake and therefore capable\\n\\nof exiting his house and turning on his vehicle at any moment,\\n\\nthereby destroying the evidence. These circumstances, considered\\n\\n\\n7 Apart from knowing that Owens was being investigated in relation\\nto a double-shooting, officers Dyer and Lee were aware that Owens\\nhad a military background and possessed firearms in his house.\\nAlso, they did not want to be seen because their instructions were\\nto verify the presence of Owens's vehicles without making contact\\nwith him.\\n\\n\\n -17-\\n\\fin conjunction with the inevitable natural dissipation of the\\n\\nvehicle's warmth, support a finding of exigency and, thus, of\\n\\nreasonableness as to Officer Dyer's search. See Almonte-Báez, 857\\n\\nF.3d at 32 (\\\"[T]he government . . . may invoke the exigent\\n\\ncircumstances exception when it can identify an 'objectively\\n\\nreasonable basis' for concluding that, absent some immediate\\n\\naction, the loss or destruction of evidence is likely.\\\" (citation\\n\\nomitted)).\\n\\n Finally, the scope and intrusiveness of Officer Dyer's\\n\\nsearch also weigh in favor of its reasonableness. See Maryland v.\\n\\nKing, 569 U.S. at 448 (\\\"Th[e] application of 'traditional standards\\n\\nof reasonableness' requires a court to weigh 'the promotion of\\n\\nlegitimate governmental interests' against 'the degree to which\\n\\n[the search] intrudes upon an individual's privacy.'\\\" (quoting\\n\\nWyoming v. Houghton, 526 U.S. 295, 300 (1999))). The scope of\\n\\nOfficer Dyer's search was limited to verifying the temperature of\\n\\nOwens's vehicle, and its intrusiveness was minimal -- Officer Dyer\\n\\nsimply placed his hand on the vehicle's hood and grill for a few\\n\\nseconds. Cf. Schmerber, 384 U.S. at 770-72 (holding that drawing\\n\\na drunk-driving suspect's blood was reasonable); Cupp v. Murphy,\\n\\n412 U.S. 291, 296 (1973) (holding that the \\\"ready destructibility\\n\\nof the evidence\\\" and the suspect's observed efforts to destroy it\\n\\n\\\"justified the police in subjecting him to the very limited\\n\\n\\n -18-\\n\\fsearch,\\\" the scraping of his fingernails, which was \\\"necessary to\\n\\npreserve the highly evanescent evidence they found under his\\n\\nfingernails\\\"); Nikolas v. City of Omaha, 605 F.3d 539, 546 (8th\\n\\nCir. 2010) (holding that the exterior search of a garage, which\\n\\nwarrants \\\"protection comparable to that afforded the curtilage of\\n\\na residence,\\\" by \\\"look[ing] through the windows was\\n\\nconstitutionally reasonable\\\").\\n\\n In short, based on our fact-bound and case-specific\\n\\ninquiry, we conclude that Officer Dyer's warrantless search of\\n\\nOwens's vehicle while parked in his house's driveway did not offend\\n\\nthe Fourth Amendment because, within the totality of the\\n\\ncircumstances, it was objectively reasonable for Officer Dyer to\\n\\nbelieve the search was necessary to prevent the imminent\\n\\ndestruction of evidence.8\\n\\n\\n8 Even if we were to find that the district court erred in denying\\nOwens's motion to suppress evidence referencing the temperature of\\nhis vehicle, we would deem such error harmless beyond a reasonable\\ndoubt. See Chapman v. California, 386 U.S. 18, 24 (1967); see\\nalso Chambers v. Maroney, 399 U.S. 42, 53 (1970). As discussed in\\ndetail below, the Government presented a plethora of evidence\\nunrelated to the temperature of Owens's vehicle that provided a\\nmore than compelling basis for Owens's convictions. See infra at\\n26-29; see also United States v. Jiménez, 419 F.3d 34, 42 (1st\\nCir. 2005) (finding harmless error when erroneously admitted\\nevidence \\\"pale[d] in light of the other evidence introduced at\\ntrial\\\").\\n\\n By the same token, the very limited evidence regarding the\\ntemperature of Owens's vehicle was inconsequential and cumulative.\\nSee Harrington v. California, 395 U.S. 250, 254 (1969) (recognizing\\nthat cumulative nature of contested evidence is a factor that\\n\\n -19-\\n\\fB. Motion to Suppress the Search Warrants\\n\\n During the investigation of Owens's crimes, a total of\\n\\nfive search warrants were issued.9 On appeal, Owens argues that\\n\\nthe district court erred in denying his motion to suppress the\\n\\nevidence seized pursuant to all the warrants, albeit on two\\n\\ndifferent grounds. He challenges the first four warrants arguing\\n\\nthat the affidavits on which they were based contained false or\\n\\nmisleading information.10 Specifically, Owens sustains that these\\n\\n\\n\\ncontributes to the conclusion that any error in admitting the\\nevidence was harmless). To the extent that the warmth emanating\\nfrom Owens's vehicle was probative, it served to suggest that his\\nvehicle had been recently used. But it was essentially conceded\\nthat Owens had left his house and driven his vehicle in the hours\\nsurrounding the incident at the Chabot residence. Owens himself\\ntestified that he left his house multiple times that night and\\nearly morning. Still more, video surveillance footage placed him\\noutside of his house and at Dunkin' Donuts not long after the time\\nof the incident. Unsurprisingly, in its closing statement the\\nGovernment did not once meaningfully refer to the temperature of\\nOwens's vehicle.\\n\\n Thus, viewed in context, the evidence that Owens's vehicle felt\\nwarm when Officer Dyer touched it was simply unessential to both\\nthe Government's case and the jury's guilty verdicts. See United\\nStates v. Hasting, 461 U.S. 499, 506 (1983) (\\\"Supervisory power to\\nreverse a conviction is not needed as a remedy when the error to\\nwhich it is addressed is harmless since by definition, the\\nconviction would have been obtained notwithstanding the asserted\\nerror.\\\").\\n9 Two state courts, New Hampshire's Salem Circuit Court and\\nMaine's Biddeford District Court, and the United States District\\nCourt for the District of Maine issued the search warrants Owens\\nchallenges on appeal.\\n10 In his brief, Owens also posits that the district court erred\\nbecause on their face the search warrant affidavits did not support\\n\\n -20-\\n\\ffour affidavits contain certain misstatements, omissions, and\\n\\ninconsistencies that affected the issuing judges' probable cause\\n\\ndeterminations. Owens challenges the fifth warrant to the extent\\n\\nits supporting affidavit relied on: (1) evidence seized pursuant\\n\\nto one of the four prior \\\"faulty warrants,\\\" or (2) the match\\n\\nbetween DNA collected from the crime scene and the DNA obtained\\n\\nfrom the buccal swab taken during the police interview, which Owens\\n\\navers was obtained \\\"due to [his] uninformed and/or involuntary\\n\\nconsent.\\\" On these grounds, Owens contends that we should\\n\\ninvalidate the warrants or, in the alternative, remand to the\\n\\ndistrict court for a hearing to \\\"fully determine the depth and\\n\\nbreadth\\\" of the purported inaccuracies. We disagree.\\n\\n Affidavits supporting search warrants are presumptively\\n\\nvalid. United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018);\\n\\nUnited States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). A\\n\\ndefendant may \\\"rebut this presumption and challenge the veracity\\\"\\n\\nof a warrant affidavit at a pretrial hearing commonly known as a\\n\\nFranks hearing. Barbosa, 896 Fd.3d at 67 (quotation and citations\\n\\nomitted); see also Franks v. Delaware, 438 U.S. 154, 171 (1978).\\n\\n\\n\\n\\na finding of probable cause and did not establish a nexus between\\nthe locations to be searched and the items sought. Owens, however,\\ndoes not support this argument with anything more than conclusory\\nstatements. Accordingly, we deem it waived on appeal. Zannino,\\n895 F.2d at 17 (citations omitted).\\n\\n\\n -21-\\n\\fTo be entitled to a Franks hearing, however, a defendant must first\\n\\nmake two \\\"substantial preliminary showings: (1) that a false\\n\\nstatement or omission in the affidavit was made knowingly and\\n\\nintentionally or with reckless disregard for the truth; and (2) the\\n\\nfalsehood or omission was necessary to the finding of probable\\n\\ncause.\\\" United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)\\n\\n(citation and internal quotation marks omitted).11 A defendant's\\n\\n\\\"failure to make a showing on either of these two elements dooms\\n\\n[his] challenge.\\\" McLellan, 792 F.3d at 208.\\n\\n In its order denying Owens's motion to suppress the\\n\\nevidence obtained pursuant to the search warrants, the district\\n\\ncourt made a detailed assessment of Owens's claims as to each\\n\\nmisstatement and omission he identified in the affidavits. Order\\n\\non Def.'s Mots. to Suppress and Dismiss, United States v. Owens,\\n\\nNo. 2:15-CR-55-NT, 2015 WL 6445320, at *12-18 (D. Me. Oct. 23,\\n\\n2015). In doing so, the district court concluded that Owens did\\n\\nnot make a showing of the two required elements -- intentionality\\n\\nand materiality -- for any single misstatement or omission\\n\\ncontained in the affidavits. Id. Specifically, it found that the\\n\\nmisstatements and omissions were either the result of negligence\\n\\n\\n\\n11 These showings are referred to as the \\\"intentionality\\\" and\\n\\\"materiality\\\" prongs of the Franks test. See, e.g., United States\\nv. Lull, 824 F.3d 109, 113-14 (4th Cir. 2016).\\n\\n\\n -22-\\n\\for innocent mistakes, or had no bearing on the probable cause\\n\\ndeterminations.12 Id. As to Owens's contention regarding his lack\\n\\nof consent to the buccal swab during the police interview, the\\n\\ndistrict court reviewed video recordings of the interview and\\n\\nconcluded that Owens's consent \\\"was voluntarily given, and not the\\n\\nresult of duress or coercion, express or implied.\\\" Id. at *3 n.2\\n\\n(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)).\\n\\n After a careful analysis of the record, we agree with\\n\\nand adopt the district court's factual findings and legal\\n\\nconclusions regarding Owens's failure to make the intentionality\\n\\nand materiality showings that would entitle him to a Franks\\n\\nhearing, and Owens's consent to the buccal swab during the police\\n\\ninterview. Accordingly, we find no error in the district court's\\n\\ndenial of Owens's motions to suppress the evidence seized pursuant\\n\\nto the search warrants. See United States v. Arias, 848 F.3d 504,\\n\\n511 (1st Cir. 2017) (\\\"In considering a district court's decision\\n\\nto deny a Franks hearing, we review factual determinations for\\n\\n\\n12 We note that, in support of his motion to suppress, Owens even\\nlabelled as \\\"recklessly false\\\" statements that were actually true.\\nFor example, Owens argued that one of the affidavits falsely\\nidentified him as a suspect, but Owens was in fact a suspect at\\nthe time the affidavit was submitted. The same goes for some of\\nthe omissions on which Owens's motion rested. For example, he\\nclaimed that one of the affidavits omitted that the Chabot\\nresidence's intruder first attempted to gain entry into the room\\nwhere Carol was hiding, when the affidavit specifically mentioned\\nthis fact.\\n\\n\\n -23-\\n\\fclear error and the probable cause determination de novo.\\\"\\n\\n(citation omitted)); see also United States v. Tzannos, 460 F.3d\\n\\n128, 136 (1st Cir. 2006) (recognizing that \\\"a defendant must meet\\n\\na high bar even to get a Franks hearing\\\").\\n\\nC. Sufficiency of Evidence for Owens's Convictions\\n\\n In reviewing sufficiency challenges, \\\"[w]e view 'all\\n\\n[the] evidence, credibility determinations, and reasonable\\n\\ninferences therefrom in the light most favorable to the verdict[]\\n\\nin order to determine whether the jury rationally could have found\\n\\nthat the government established each element of the charged offense\\n\\nbeyond a reasonable doubt.'\\\" United States v. Valdés-Ayala, 900\\n\\nF.3d 20, 30 (1st Cir. 2018) (quoting United States v. Serunjogi,\\n\\n767 F.3d 132, 139 (1st Cir. 2014)). Our analysis \\\"is weighted\\n\\ntoward preservation of the jury verdict.\\\" Rodríguez-Torres v.\\n\\nCaribbean Forms Mfr., Inc., 399 F.3d 52, 57 (1st Cir. 2005). \\\"[A]s\\n\\nlong as the guilty verdict finds support in a 'plausible rendition\\n\\nof the record,' it must stand.\\\" United States v. Moran, 312 F.3d\\n\\n480, 487 (1st Cir. 2002) (citation omitted). Importantly, as we\\n\\nconduct our review, we place \\\"no premium . . . upon direct as\\n\\nopposed to circumstantial evidence\\\" since \\\"both types of proof can\\n\\nadequately ground a conviction.\\\" United States v. Valerio, 48\\n\\nF.3d 58, 63 (1st Cir. 1995) (quoting United States v. Ortiz, 966\\n\\nF.2d 707, 711 (1st Cir. 1992)).\\n\\n\\n -24-\\n\\f For Owens's conviction on Count One, interstate domestic\\n\\nviolence, the jury must have found that the Government proved\\n\\nbeyond reasonable doubt that: (1) Owens was married to Rachel; (2)\\n\\nOwens traveled in interstate commerce -- in this case, from New\\n\\nHampshire to Maine -- with the intent to \\\"kill [or] injure\\\" Rachel;\\n\\n(3) \\\"as a result of such travel,\\\" Owens \\\" commit[ted] or\\n\\nattempt[ed] to commit a crime of violence\\\" against Rachel; and\\n\\n(4) a \\\"life threatening bodily injury\\\" resulted from Owens's\\n\\nactions.13 18 U.S.C. § 2261(a)(1) & (b)(2). Meanwhile, for Owens's\\n\\nconviction on Count Two, discharge of a firearm during and in\\n\\nrelation to a crime of violence, the Government had to prove that\\n\\n\\\"during and in relation to [a] crime of violence,\\\" namely the crime\\n\\nof interstate domestic violence charged in Count One, Owens\\n\\nknowingly \\\"use[d] . . . a firearm\\\" by discharging it \\\"during and\\n\\nin relation\\\" to the commission of that crime. 18 U.S.C.\\n\\n§ 924(c)(1)(A)(iii).\\n\\n Owens's sufficiency challenge rests on the Government's\\n\\nalleged failure to prove that Owens was the person who intruded\\n\\n\\n\\n13 The Government sought to prove the fourth prong, that Rachel\\nsustained a \\\"life threatening bodily injury,\\\" for purposes of 18\\nU.S.C. § 2261(b)(2), which provides a penalty of up to 20 years'\\nimprisonment if defendant's commission of interstate domestic\\nviolence under § 2261(a) results in \\\"permanent disfigurement or\\nlife threatening bodily injury to the victim.\\\" 18 U.S.C.\\n§ 2261(b)(2).\\n\\n\\n -25-\\n\\finto the Chabot residence, and the purported impossibility of Owens\\n\\ntravelling from Londonderry to Saco, invading the Chabot\\n\\nresidence, and returning to Londonderry within a time frame of\\n\\napproximately four hours and twenty-four minutes. Owens claims\\n\\nthat neither Carol, Steve, nor Rachel identified him as the\\n\\nintruder. Furthermore, Owens stresses that Rachel identified the\\n\\nintruder as a \\\"dark skinned person with dread locks [sic],\\\" which\\n\\ndoes not match his physical description since he is a \\\"white male\\n\\nwho does not have dread locks [sic].\\\" As to the second ground of\\n\\nhis sufficiency challenge, Owens claims that, because he was\\n\\npresent in Londonderry at 12:11 a.m. and 4:35 a.m., as reflected\\n\\nby two store's video surveillance footage, it was impossible for\\n\\nhim to have been present in Saco when the shooting took place,\\n\\n2:45-2:47 a.m. He focuses on the amount of time it would have\\n\\ntaken him to make the trip back from Saco to Londonderry. In\\n\\nparticular, Owens contends that a trip from the Chabot residence\\n\\nin Saco to Londonderry would take him at least two hours and\\n\\nfifteen minutes, while under the Government's theory it took him\\n\\napproximately one hour and forty-eight minutes. We are not\\n\\npersuaded.\\n\\n As the Government avers, the jury was presented a vast\\n\\namount of direct and circumstantial evidence identifying Owens as\\n\\nthe Chabot residence intruder. Specifically, the Government\\n\\n\\n -26-\\n\\fidentifies the following incriminating evidence presented at\\n\\ntrial: (1) laboratory testing confirming that Owens's DNA was found\\n\\nin an area where the two window panes had been affixed to each\\n\\nother -- an area that would not have been exposed until the\\n\\nintruder shattered the outer pane -- as well as in the door handle\\n\\nand deadlock used to access the Chabot residence; (2) boot prints\\n\\nand a cast of boot impression taken from the scene that matched\\n\\nthe boots found in Owens's car a few hours after the incident;\\n\\n(3) testimony regarding bloodstains found on the armrest of the\\n\\ndriver's door and inside the driver's door of Owens's vehicle a\\n\\nfew hours after the incident; (4) Steve's testimony identifying\\n\\nthe intruder as a person with a similar physique to Owens's and\\n\\nwho, like Owens, wore glasses; (5) expert testimony revealing\\n\\nOwens's efforts to manipulate his laptop's clock to make it seem\\n\\nthat he was at his Londonderry home at the time of the incident;\\n\\nand, relatedly, (6) testimony regarding Owens's attempt to\\n\\nmanufacture an alibi by having his former boss lie to law\\n\\nenforcement about a Skype call that never took place. This\\n\\nevidence, in conjunction with the rest of the evidence presented\\n\\nat trial, allows a reasonable jury to conclude beyond reasonable\\n\\ndoubt that it was Owens who broke into the Chabot's residence.14\\n\\n\\n14 Although not specifically listed by the Government as evidence\\nthat led the jury to identify Owens as the Chabot residence's\\nintruder, we note that the .9mm ammunition stamped \\\"WCC 1987\\\" and\\n\\n -27-\\n\\f Owens's reference to Rachel's alleged identification of\\n\\nthe intruder as a \\\"dark skinned person with dread locks [sic],\\\"\\n\\nwhich we read as an attempt to highlight evidence of exculpatory\\n\\nnature, does not help him. We are not to \\\"weigh the evidence or\\n\\nmake credibility judgments\\\" in our sufficiency review, as \\\"these\\n\\ntasks are solely within the jury's province.\\\" Serunjogi, 767 F.3d\\n\\nat 139 (quoting United States v. Hernández, 218 F.3d 58, 64 (1st\\n\\nCir. 2000)).15\\n\\n Finally, as to the alleged impossibility of Owens making\\n\\nthe trip back from Saco to Londonderry in less than two hours and\\n\\nfifteen minutes, the jury was presented with ample testimonial\\n\\nevidence, including Owens's own trial testimony, reflecting that\\n\\nthis ninety-mile trip usually took about one hour and thirty\\n\\nminutes. Moreover, Carol testified that Owens frequently bragged\\n\\nabout making the trip in just over an hour. Accordingly, the jury\\n\\nwas presented with sufficient evidence to conclude that Owens's\\n\\nLondonderry-Saco roundtrip would have lasted three hours or less,\\n\\n\\n\\n\\ndark clothes seized from Owens's house also strongly support the\\njury's guilty verdicts. The .9mm ammunition casings matched the\\nshell casings recovered from the Chabot residence, while the dark\\nclothes, some of which was found in Owens's washing machine,\\nmatched that worn by the residence's intruder.\\n15 In any event, we note that the record is devoid of any testimony\\ndescribing the intruder as such. What Rachel did testify was that\\nthe intruder was wearing a \\\"Jamaican hat\\\" or \\\"floppy [black] hat.\\\"\\n\\n\\n -28-\\n\\fwhich fits easily within the four hour and twenty-four-minute\\n\\nwindow separating the two instances in which he was recorded at\\n\\nthe Londonderry stores.\\n\\n Based on the foregoing analysis, we conclude that there\\n\\nwas sufficient evidence to support Owens's convictions.\\n\\nD. Reasonableness of Owens's Life Sentence\\n\\n Owens challenges the procedural and substantive\\n\\nreasonableness of his sentence. He claims the district court erred\\n\\nprocedurally by not considering some factors outlined in 18 U.S.C.\\n\\n§ 3553, and that it substantively erred in imposing a life\\n\\nsentence.\\n\\n Our review is bifurcated. First, we ensure the district\\n\\ncourt did not commit any procedural errors, such as \\\"failing to\\n\\nconsider the section 3553(a) factors, selecting a sentence based\\n\\non clearly erroneous facts, or failing to adequately explain the\\n\\nchosen sentence.\\\" United States v. Gierbolini-Rivera, 900 F.3d 7,\\n\\n12 (1st Cir. 2018) (citation omitted). If a sentence is\\n\\nprocedurally sound, we proceed to the second step of our inquiry:\\n\\ndetermining whether the sentence is substantively reasonable. Id.\\n\\nIn reviewing the substantive reasonableness of a sentence, we\\n\\n\\\"focus[] on the duration of the sentence in light of the totality\\n\\nof the circumstances.\\\" Id. (citing United States v. Del Valle-\\n\\nRodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). Although a district\\n\\n\\n -29-\\n\\fcourt is \\\"under a mandate to consider a myriad of relevant\\n\\nfactors,\\\" the weight it decides to afford to those factors is\\n\\n\\\"largely within the court's informed discretion.\\\" United States\\n\\nv. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also 18 U.S.C.\\n\\n§ 3553(a). We will ultimately find a sentence substantively\\n\\nreasonable \\\"so long as the sentencing court has provided a\\n\\n'plausible sentencing rationale' and reached a 'defensible\\n\\nresult.'\\\" Gierbolini-Rivera, 900 F.3d at 12 (citing United States\\n\\nv. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).16\\n\\n Because Owens failed to preserve his objection below, we\\n\\nreview his procedural challenge based on the district court's\\n\\nalleged failure to consider § 3553(a) factors for plain error.\\n\\nId. at 13. Hence, for Owens's procedural challenge to succeed, he\\n\\nmust show: \\\"(1) that an error occurred, (2) which was clear or\\n\\nobvious and which not only (3) affected the defendant's substantial\\n\\nrights, but also (4) seriously impaired the fairness, integrity,\\n\\nor public reputation of judicial proceedings.\\\" Id. at 12 (citations\\n\\n\\n\\n16 In considering a challenge to the substantive reasonableness\\nof a sentence preserved below, this court applies the abuse of\\ndiscretion standard. Gierbolini-Rivera, 900 F.3d at 14. Owens,\\nhowever, did not object to his life sentence below. In such cases,\\nit remains an open question in this Circuit whether the abuse of\\ndiscretion standard or the plain error standard applies. Id. at\\n15 (citation omitted). Notwithstanding, we need not decide this\\nissue in the instant case given that Owens's claim fails under\\nboth.\\n\\n\\n -30-\\n\\fomitted).\\n\\n Owens's procedural challenge to his sentence fails on\\n\\nthe first prong of the plain error test. The record reveals that\\n\\nthe district court took into consideration all the mitigating\\n\\nfactors Owens claims it did not, namely, his military accolades,\\n\\nlack of criminal history, productive work history, and age. See\\n\\n18 U.S.C. § 3553(a) (stating that a sentencing court \\\"shall\\n\\nconsider . . . the history and characteristics of the defendant\\\").\\n\\nThe district court, however, weighed these mitigating factors\\n\\nagainst the following aggravating factors: the severity of the\\n\\ncrime; Owens's premeditation, given that he planned to kill Rachel\\n\\nboth to avoid the responsibility of caring for her as she suffered\\n\\nfrom dementia and to be able to continue his affair, while avoiding\\n\\nthe scorn that divorcing Rachel would have caused; the attempted\\n\\nmurder of a witness and friend, Steve, to prevent him from\\n\\nidentifying Owens as the intruder; Owens's deceitful character, as\\n\\nrevealed through his participation at trial and during allocution;\\n\\nand, finally, the need to protect the public, among others. See\\n\\nid. This balancing of sentencing factors \\\"is precisely the\\n\\nfunction that a sentencing court is expected to perform,\\\" United\\n\\nStates v. Ledée, 772 F.3d 21, 41 (1st Cir. 2014) (citation\\n\\nomitted), and we find that the district judge did not procedurally\\n\\nerr, plainly or otherwise, while carrying it out in the present\\n\\n\\n -31-\\n\\fcase.\\n\\n Further, the district court thoroughly explained the\\n\\nrationale behind Owens's life sentence. Apart from the factors\\n\\nlisted above, it emphasized Owens's \\\"cold-blooded behavior . . .\\n\\n[and] obvious lack of conscience,\\\" as well as the \\\"long lasting\\n\\nemotional damage to both Chabots\\\" and the severity of the injuries\\n\\ninflicted on Rachel. Considering the totality of the\\n\\ncircumstances of Owens's crime, we find that the district court's\\n\\nlife sentence is a defensible result. See Gierbolini-Rivera, 900\\n\\nF.3d at 12. Accordingly, we conclude that the district court did\\n\\nnot substantively err.\\n\\nE. Motion to Dismiss the Indictment on Double Jeopardy Grounds\\n\\n Finally, Owens claims that the district court erred in\\n\\ndenying his motion to dismiss the indictment on double jeopardy\\n\\ngrounds. The Double Jeopardy Clause \\\"provides that no person may\\n\\nbe tried more than once 'for the same offence.'\\\" Currier v.\\n\\nVirginia, 138 S. Ct. 2144, 2149 (2018). It protects \\\"an individual\\n\\nagainst (1) a second prosecution for the same offense, following\\n\\nan acquittal; (2) a second prosecution for the same offense,\\n\\nfollowing a conviction; and (3) multiple punishments for the same\\n\\noffense.\\\" United States v. Stoller, 78 F.3d 710, 714 (1st Cir.\\n\\n1996) (citation omitted). Owens, however, does not establish that\\n\\nhis double jeopardy challenge is premised on a prior criminal\\n\\n\\n -32-\\n\\fconviction, acquittal, or punishment for the same offenses for\\n\\nwhich he was convicted and sentenced in this case.17 We thus find\\n\\nno error in the district court's denial of his motion to dismiss\\n\\nthe indictment on double jeopardy grounds.\\n\\n III. CONCLUSION\\n\\n For the reasons explained above, each of Owens's claims\\n\\nis unavailing. We therefore affirm the district court's denial of\\n\\nhis pretrial motions, his convictions, and sentence.\\n\\n Affirmed.\\n\\n\\n\\n\\n17He does not even allege that he was subject to any prior criminal\\nprosecution for offenses resulting from the events that unfolded\\nat the Chabot residence.\\n\\n\\n -33-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371404/\", \"author_raw\": \"TORRUELLA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"TORRUELLA"},"judge3":{"kind":"string","value":"THOMPSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4594151/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Gregory OWENS, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 16-1945\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n GREGORY OWENS,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n [Hon. Nancy Torresen, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n Sarah A. Churchill, with whom Nichols & Churchill, P.A., was\non brief, for appellant.\n John M. Pellettieri, Attorney, Appellate Section, Criminal\nDivision, U.S. Department of Justice, with whom Sangita K. Rao,\nAttorney, Appellate Section, Criminal Division, John P. Cronan,\nActing Assistant Attorney General, Criminal Division, Matthew S.\nMiner, Deputy Assistant Attorney General, Criminal Division,\nHalsey B. Frank, United States Attorney, Darcie McElwee, Assistant\nUnited States Attorney, and James W. Chapman, Assistant United\nStates Attorney, were on brief, for appellee.\n\n\n\n February 26, 2019\n\f TORRUELLA, Circuit Judge. This is a case about a double\n\nlife, an attempted uxoricide, and excellent police work.\n\nDefendant-Appellant Gregory Owens (\"Owens\") was convicted of\n\ninterstate domestic violence in violation of 18 U.S.C. § 2261(a)(1)\n\nand (b)(2); and discharge of a firearm during and in relation to\n\na crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).\n\nHe was sentenced to life in prison. On appeal, Owens challenges\n\nthe sufficiency of evidence supporting his convictions, the\n\nreasonableness of his sentence, and the district court's denial of\n\nhis pretrial motions seeking to suppress evidence and dismiss the\n\nindictment on double jeopardy grounds. After careful review, we\n\nfind Owens's convictions supported by sufficient evidence, his\n\nsentence substantively reasonable, and the motions for suppression\n\nand dismissal properly denied. Seeing no reason to vacate Owens's\n\nconvictions or sentence on the grounds that he has presented, we\n\naffirm.\n\n I. BACKGROUND\n\nA. Factual Background\n\n 1. The Home Invasion\n\n In the early morning hours of December 18, 2014, at\n\napproximately 2:45 a.m., Carol Chabot (\"Carol\") awoke to a\n\nshuffling noise coming from the downstairs of her two-story house\n\nin Saco, Maine. Sensing something was not right, she woke her\n\n\n -2-\n\fhusband, Steve Chabot (\"Steve\"), who lay beside her. Steve,\n\nhowever, did not hear the noise but told Carol \"it's probably\n\nRachel\" who caused the noise — with \"Rachel\" being Rachel Owens\n\n(\"Rachel\"), a family friend who was staying the night. Then Steve\n\nrolled over to go back to sleep. Undeterred, Carol got out of bed\n\nto investigate.\n\n As she walked down the upstairs hallway, toward the spare\n\nbedroom where Rachel was staying, Carol heard a second noise --\n\nthis time the loud sound of glass shattering. With haste, she\n\nlooked into the spare bedroom and noticed Rachel was sound asleep\n\nin bed. Steve also heard the loud noise and hurried out of bed to\n\ncheck what was going on. He peeked out of his bedroom towards the\n\nstaircase and saw an intruder racing up the stairs with a gun in\n\nhis right hand. The intruder, later identified as Owens, was\n\napproximately 5 feet 9 inches tall with a slim, athletic build; he\n\nwore dark clothing, gloves, and a black mask with a single opening\n\nat the eyes and glasses protruding from it.\n\n Steve shouted an expletive at the intruder and dashed\n\nback into the master bedroom. Carol, who did not see the intruder\n\nbut saw a look of horror on her husband's face, ran into a third\n\nbedroom used as a home office and barricaded herself inside. The\n\nintruder followed her and tried to force his way into the room,\n\nbut, after a few failed attempts, suddenly stopped. He then walked\n\n\n -3-\n\ftoward the room where Rachel lay and fired at her three times,\n\nhitting her in the head, arm, and torso.\n\n Having heard the gun shots, Steve peeked out of the\n\nmaster bedroom again. He saw the intruder about two feet away,\n\nheading towards him. They looked at each other face to face.\n\nSteve immediately slammed the door shut and held his arm against\n\nit. Undaunted, the intruder kicked the door in, looked inside\n\nthrough the now slightly-opened doorway, and fired shots through\n\nthe door, striking Steve in the arm, neck, and rib area.1 The\n\nintruder then abandoned the Chabot residence. He did not take any\n\nvaluables with him.\n\n 2. The Crime Scene\n\n In response to a 911 call from Steve Chabot received at\n\n2:47 a.m., police arrived at the Chabot residence. During their\n\ninvestigation of the crime scene, officers learned that the\n\nintruder gained entry into the garage through a door located in\n\nthe back of the house, and into the interior of the Chabot\n\nresidence through a door located in the garage that led to the\n\nkitchen. The upper part of this garage door was double-paned\n\nglass, sectioned into nine squares by wood framing. The intruder\n\n\n\n1 Both Rachel and Steve survived the incident, but it left Rachel\nwith a bullet lodged in her brain and severely limited use of her\nright hand.\n\n\n -4-\n\fbroke the outer pane of the lower left square of glass, leaving\n\nglass shards scattered on the floor and separating the inner pane,\n\nwhich remained intact, from the door, thereby creating a gap that\n\nallowed the intruder to reach in and unlock the deadbolt. Officers\n\nretrieved human hair from the area between the shattered outer\n\npane of glass and the inner pane of glass, and swabbed the area\n\nfor DNA.\n\n Police officers also recovered numerous .9mm shell\n\ncasings stamped \"WCC 1987,\" later identified as 27-year-old\n\nWestern Cartridge Company casings, from the second floor of the\n\nhouse.\n\n Finally, while inspecting the periphery of the Chabot\n\nresidence, officers found a footprint in the damp dirt outside the\n\nfirst-floor window near the garage and proceeded to make a cast of\n\nit.\n\n 3. Search, Intervention, and Interview\n\n At around 5:00 a.m., Maine police officers informed New\n\nHampshire law enforcement of the shooting at the Chabot residence.\n\nTwo New Hampshire police officers, Randy Dyer (\"Officer Dyer\") and\n\nKeith Lee (\"Officer Lee\"), were instructed to visit Owens's\n\nresidence in the town of Londonderry to verify the presence of his\n\ntwo vehicles. They were, however, instructed not to make contact\n\nwith Owens.\n\n\n -5-\n\f At approximately 5:20 a.m., the two police officers\n\narrived at Owens's neighborhood and parked their car at the\n\nbeginning of Winthrop Road, the dead-end street where Owens's\n\nresidence was located. Under the cover of darkness, they began\n\nheading down Winthrop Road toward the house. At around 5:24 a.m.,\n\nbefore the officers could reach their destination, a state trooper\n\npatrol car with flashing blue lights drove near the Owens\n\nresidence. Contemporaneously, a light visible from the house's\n\nfront windows went off, making the inside of the house go dark.\n\nThe officers stopped the trooper and instructed him to turn off\n\nthe flashing lights. After this, the officers, now accompanied by\n\nthe trooper, continued their approach towards the residence. With\n\nOfficer Lee and the trooper providing cover, Officer Dyer\n\neventually made his way into the driveway, where he placed his\n\nhand on Owens's Hyundai Santa Fe SUV (\"Owens's vehicle\") and\n\nnoticed its hood and grill were warm.2 The officers and trooper\n\nthen retreated back down Winthrop Road to the staging area.\n\n Several minutes after arriving at the staging area, the\n\nofficers saw Owens's vehicle exit Winthrop Road and proceeded to\n\n\n\n2 Owens's vehicle was parked on the upper part of his driveway,\nwith its nose facing the garage. The driveway is easily observable\nand accessible to anyone passing by in the neighborhood. It is\nnot enclosed in any way, nor does it have any fences or signs\nwarning visitors to stay away.\n\n\n -6-\n\ffollow it. The vehicle stopped at a nearby Circle K store, where\n\nOwens got out. The officers approached Owens and told him that\n\nhis wife had been shot. Owens acted surprised and complained of\n\nchest pains, after which the officers requested medical attention\n\nfor him. While waiting for the medical personnel to arrive, the\n\nofficers saw blood, a pair of boots with wet stains, and a computer\n\nhard drive inside Owens's vehicle. Owens agreed to go with the\n\nofficers to the police station for a videotaped interview (the\n\n\"police interview\") after receiving medical assistance.\n\n During the police interview, Owens provided a detailed\n\naccount of his night. Specifically, he explained, albeit with\n\nsome variation, that, after speaking to his wife Rachel at around\n\n9:15 p.m., he went to bed, but got up a few times to work on his\n\ncomputer on a proposal for a military consultancy contract with\n\nthe Ukrainian government that was due the next day. In particular,\n\nOwens claimed that at around 2:30 a.m. –- fifteen minutes before\n\nthe Chabot residence was broken into -- he sent an e-mail to one\n\nof his colleagues regarding a tweak to the proposal.\n\n Owens also admitted to leaving his home on multiple\n\noccasions throughout the course of the night and early morning:\n\nfirst, to Circle K at around 12:30 a.m. to get a soda and\n\ncigarettes; then, to Dunkin' Donuts between 4:15-4:45 a.m. to get\n\ncoffee and donuts; and finally, to Circle K again at around\n\n\n -7-\n\f6:30 a.m. to grab another cup of coffee, at which point he came in\n\ncontact with officers Dyer and Lee. Furthermore, he informed the\n\ninterviewing officers that he was a military retiree and had what\n\nhe described as an \"arsenal\" of weapons in his house. After\n\ncollecting some evidence (e.g., DNA samples from his hands and\n\nmouth, clothes, etc.), the police released Owens from custody.\n\n 4. The Double-Life and Motive\n\n To fully understand the motive behind Owens's crime, we\n\nmust look back to the preceding decade. In 2005, Owens met Betsy\n\nWandtke (\"Wandtke\"), a woman from Wisconsin, in a flight back from\n\na hunters' rights convention, which they had both attended.3 About\n\nthree years later, their relationship turned into an affair. As\n\nthe affair progressed, Owens and Wandtke began to spend more time\n\ntogether -- up to ten days a month. Owens considered Wandtke his\n\n\"lover\" and his \"life.\" He represented to her that he was in the\n\nprocess of divorcing Rachel, which Wandtke was unable to\n\nindependently confirm, given that it was not true. To partly\n\nexplain his long absences when he was actually with Rachel in New\n\nHampshire, Owens told Wandtke that his work as a military\n\nconsultant required him to travel and take part in covert missions\n\nin places like Afghanistan.\n\n\n\n3 From the moment they met, Wandtke was aware of Owens's marriage.\n\n\n -8-\n\f While the affair continued, in or about 2011, Rachel\n\nbegan to develop early-onset dementia. The responsibility of\n\nhaving to care for her burdened Owens, but did not deter him from\n\ncontinuing his affair with Wandtke. Then, on December 3, 2014,\n\nthe affair came to an abrupt end. Due to an inadvertent call from\n\nOwens's mobile phone, Wandtke discovered that Owens was leading a\n\ndouble-life -- his marriage with Rachel continued in regular\n\ncourse. Wandtke confronted Owens about it and told him their\n\nrelationship was over.4 After a failed attempt to convince Wandtke\n\nthat she misunderstood the conversation she overheard, Owens\n\npromised Wandtke he was going to make it up to her.\n\n A mere fifteen days after the breakup, the events at the\n\nChabot residence unfolded. Furthermore, in the days following the\n\nshooting, Owens contacted Wandtke via e-mail and told her that he\n\nwas being \"targeted\" because of his work and instructed her to \"go\n\ndark\" and not tell anyone about their relationship. Then, on\n\nDecember 31, 2014 -- thirteen days after the incident at the Chabot\n\nresidence and with his wife still recovering from a gunshot wound\n\n\n4 Owens was with Wandtke in Wisconsin a little over a week before\ntheir breakup. They had plans to celebrate Thanksgiving together.\nNotwithstanding, the weekend before the holiday, Owens suddenly\ncancelled their plans, leaving Wisconsin for a supposed emergency\ncovert mission in Afghanistan. Then, on December 3, 2014, Wandtke\nfound out that Owens was not in Afghanistan, but rather with Rachel\nin New Hampshire, as the result of the accidental call made from\nOwens's cell phone.\n\n\n -9-\n\fto the head -- Owens unexpectedly arrived at Wandtke's doorstep\n\nwith a limousine and roses. Owens and Wandtke celebrated New\n\nYear's Eve and spent time together during the first week of 2015.\n\nOn January 4, 2015, Owens returned to New Hampshire. Shortly\n\nthereafter, on January 11, 2015, Owens was arrested.\n\nB. Procedural Background\n\n On March 11, 2015, a grand jury indicted Owens on two\n\ncounts: interstate domestic violence (Count One) and discharge of\n\na firearm during and in relation to a crime of violence (Count\n\nTwo). On July 6, 2015, Owens filed a motion to dismiss the\n\nindictment on double jeopardy grounds; a motion to suppress\n\nevidence gathered as the result of the entry into his property,\n\nnamely, into his driveway; and, a motion to suppress search\n\nwarrants issued and executed during the investigation for his\n\nvehicles and house, electronic items (e.g., an iPhone, Magellan\n\nGPS, etc.), and an external hard drive and a laptop computer in a\n\nSwiss Army case.5 The district court held an evidentiary hearing\n\n\n5 Owens also moved to suppress DNA evidence obtained from a blood\nsample collected at the Chabot residence, and from a buccal swab\nlaw enforcement performed on his cheeks during the police\ninterview. Owens, however, eventually withdrew his motion as to\nthe blood sample collected from the Chabot residence.\nNotwithstanding, we note that a heading in his brief makes specific\nreference to the collection of the blood sample, which may be\ninterpreted to suggest his intent to still seek suppression of the\nDNA test results obtained therefrom. The Government attributes\nOwens's reference to the collection of the blood sample in the\nheading to human error. It asserts that the section with this\n\n -10-\n\fon Owens's motion to dismiss and motions to suppress. Evidence\n\nwas presented, including the testimony of the officer who touched\n\nOwens's vehicle, as well as that of the officers who drafted the\n\naffidavits on which the search warrants were based. Unpersuaded,\n\nthe district court denied Owens's motions to dismiss and to\n\nsuppress.\n\n A ten-day jury trial followed. The jury found Owens\n\nguilty of both counts. For these charges, the district court\n\nsentenced Owens to life imprisonment (240 Months on Count One and\n\nLife on Count Two). Owens timely appealed.\n\n II. ANALYSIS\n\nA. Motion to Suppress Evidence Gathered as a Result of Officer\n Dyer's Entry into the Driveway\n\n We review a district court's denial of a motion to\n\nsuppress scrutinizing its factual findings for clear error and its\n\nlegal conclusions de novo. United States v. Flores, 888 F.3d 537,\n\n543 (1st Cir. 2018) (citations omitted); United States v. Brown,\n\n\n\n\nheading actually deals with Owens's challenge to a search warrant\naffidavit that mentions DNA evidence obtained from Owens's police\ninterview buccal swab. See infra at 21-24. Based on the section's\ncontent, we agree. Neither there nor anywhere else in his brief\ndoes Owens develop an argument for suppression of the DNA test\nresults obtained from the collection of a blood sample at the\nChabot residence. Accordingly, Owens must \"forever hold [his]\npeace\" with the Government's use of this evidence. United States\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations and internal\nquotation marks omitted).\n\n\n -11-\n\f510 F.3d 57, 64 (1st Cir. 2007). To succeed on appeal, a defendant\n\n\"must show that no reasonable view of the evidence supports the\n\ndistrict court's decision.\" United States v. Dunbar, 553 F.3d 48,\n\n55 (1st Cir. 2009) (citations and internal quotation marks\n\nomitted).\n\n Owens argues that Officer Dyer's entry into his driveway\n\nand touching of his vehicle parked therein constituted an illegal\n\nsearch because the driveway formed part of his house's curtilage\n\nand, therefore, was protected from warrantless searches by the\n\nFourth Amendment. Accordingly, he sustains that the district court\n\nerred in denying the suppression of evidence obtained as a result\n\nof the search, namely, any reference to the temperature of his\n\nvehicle's hood and grill.\n\n The Fourth Amendment provides in relevant part that the\n\n\"right of the people to be secure in their persons, houses, papers,\n\nand effects, against unreasonable searches and seizures, shall not\n\nbe violated.\" U.S. Const. amend. IV. \"When the Government obtains\n\ninformation by physically intruding on persons, houses, papers, or\n\neffects, a search within the original meaning of the Fourth\n\nAmendment has undoubtedly occurred.\" Florida v. Jardines, 569\n\nU.S. 1, 5 (2013) (citations and internal quotation marks omitted).\n\n For Fourth Amendment purposes, a house's curtilage is\n\n\"the area immediately surrounding and associated with the home.\"\n\n\n -12-\n\fId. at 6 (citation and internal quotation marks omitted). \"The\n\nprotection afforded [to a house's] curtilage is essentially a\n\nprotection of families and personal privacy in an area intimately\n\nlinked to the home, both physically and psychologically, where\n\nprivacy expectations are most heightened.\" California v. Ciraolo,\n\n476 U.S. 207, 212–13 (1986). Therefore, \"[w]hen a law enforcement\n\nofficer physically intrudes on the curtilage to gather evidence,\n\na search within the meaning of the Fourth Amendment has occurred.\n\n. . . Such conduct thus is presumptively unreasonable absent a\n\nwarrant.\" Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)\n\n(citation omitted).\n\n In determining whether a specific part of a house falls\n\nwithin its curtilage, we consider:\n\n [1] the proximity of the area claimed to be curtilage to\n the home, [2] whether the area is included within an\n enclosure surrounding the home, [3] the nature of the\n uses to which the area is put, and [4] the steps taken\n by the resident to protect the area from observation by\n people passing by.6\n\nBrown, 510 F.3d at 65 (alterations in original) (quoting United\n\nStates v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002) (quoting United\n\nStates v. Dunn, 480 U.S. 294, 301 (1987))). In the instant case,\n\n\n\n6 These factors are eponymously called the Dunn factors after the\nSupreme Court's seminal opinion in United States v. Dunn, 480 U.S.\n294 (1987). See, e.g., United States v. Bain, 874 F.3d 1, 14 (1st\nCir. 2017).\n\n\n -13-\n\fhowever, we need not address these factors given that, even\n\nassuming that the driveway formed part of the house's curtilage,\n\nOfficer Dyer faced exigent circumstances when he entered the\n\ndriveway and placed his hand on Owens's vehicle, which\n\ncircumscribes his warrantless search within the bounds of the\n\nFourth Amendment. We explain.\n\n Although generally a warrant must be secured before\n\nsearching a home and its curtilage, \"the warrant requirement is\n\nsubject to certain reasonable exceptions.\" Kentucky v. King\n\n(King), 563 U.S. 452, 459 (2011) (citation omitted). These\n\nexceptions are born out of courts' need to \"balance the privacy-\n\nrelated and law enforcement-related concerns to determine if the\n\nintrusion was reasonable\" under the Fourth Amendment. Maryland v.\n\nKing, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531\n\nU.S. 326, 331 (2001)). \"One well-recognized exception applies\n\nwhen 'the exigencies of the situation make the needs of law\n\nenforcement so compelling that [a] warrantless search is\n\nobjectively reasonable under the Fourth Amendment.'\" King, 563\n\nU.S. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978));\n\nsee also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016)\n\n(\"The exigent circumstances exception allows a warrantless search\n\nwhen an emergency leaves police insufficient time to seek a\n\nwarrant.\" (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))).\n\n\n -14-\n\fThis exception, commonly known as the \"exigent circumstances\n\nexception,\" has been applied in instances where the \"need 'to\n\nprevent the imminent destruction of evidence'\" justifies a\n\nwarrantless search. King, 563 U.S. at 460 (citing Brigham City,\n\nUtah v. Stuart, 547 U.S. 398, 403 (2006)).\n\n In determining whether exigent circumstances justify a\n\nwarrantless search, we examine the totality of the circumstances.\n\nMissouri v. McNeely, 569 U.S. 141, 149 (2013). Accordingly, in\n\nthe present case we begin by considering the gravity of the crime\n\nbeing investigated and the weather conditions at the time of the\n\nsearch to ascertain the constitutionality of Officer Dyer's\n\nactions. Officer Dyer was investigating a crime of the most\n\nserious nature, a potential double-homicide, on a cold December\n\nmorning. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); United\n\nStates v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985) (listing\n\nthe \"gravity of the underlying offense\" as one of the factors that\n\ncourts must consider \"[i]n determining whether the circumstances\n\nof a case fall into one of the emergency conditions characterized\n\nas exigent circumstances\"). As conceded by Owens's counsel at\n\noral argument, the temperature in Londonderry, New Hampshire at\n\nthe time of the search was 30 degrees Fahrenheit. In this cold\n\nweather, it was reasonable for Officer Dyer to believe that any\n\nwarmth emanating from the vehicle -- the evidence -- would evanesce\n\n\n -15-\n\for be destroyed before he could obtain a search warrant.\n\n It is not unprecedented to make a finding of exigency\n\nbased on a naturally occurring event's destructive consequence\n\nover critical evidence. In McNeely, the Supreme Court recognized\n\nthat the \"the natural dissipation of alcohol in the blood may\n\nsupport a finding of exigency in . . . specific case[s].\" 569\n\nU.S. at 156. Such was the case in Schmerber, where the Court\n\nconcluded that \"further delay in order to secure a warrant after\n\nthe time spent investigating the scene of the accident and\n\ntransporting the injured suspect to the hospital to receive\n\ntreatment would have threatened the destruction of evidence\" given\n\nthat it would have \"negatively affect[ed] the probative value of\n\nthe [blood alcohol test] results.\" McNeely, 569 U.S. at 152\n\n(citing Schmerber v. California, 384 U.S. 757, 770-71 (1966)).\n\n We do not find it difficult to draw parallels between\n\nthe exigent circumstances found in Schmerber and those in the\n\ninstant case. Unlike other \"destruction-of-evidence cases\" in\n\nwhich a \"suspect has control over easily disposable evidence,\"\n\nhere, like in Schmerber, law enforcement dealt with the type of\n\n\"evidence [that]. . . naturally dissipates over time in a gradual\n\nand relatively predictable manner.\" Id. at 153. Just as the\n\npassing of time negatively affected the probative value of the\n\nblood-alcohol test in Schmerber, it negatively affected the\n\n\n -16-\n\fprobative value of Officer Dyer's gauging of the temperature of\n\nOwens's vehicle through his sense of touch, and, as such,\n\nthreatened the destruction or loss of evidence. See id. at 152.\n\n The natural dissipation of the vehicle's heat, however,\n\nwas not the only way the evidence could have been lost in the\n\npresent case. If Owens turned on his vehicle's engine, as he\n\neventually did, the evidence would have likewise been destroyed.\n\nIgnition would have made it practically impossible for law\n\nenforcement to know, based on touch, whether the vehicle was\n\npreviously warm. In deciding whether to enter the driveway and\n\ntouch Owens's vehicle, Officer Dyer was \"forced to make [a] split-\n\nsecond judgment[] -- in circumstances that [were] tense,\n\nuncertain, and rapidly evolving.\" United States v. Almonte-Báez,\n\n857 F.3d 27, 31 (1st Cir. 2017) (quoting King, 563 U.S. at 466).7\n\nBecause a light inside Owens's house was shut off a few minutes\n\nbefore his entry into the driveway, Officer Dyer had an objectively\n\nreasonable basis to believe Owens was awake and therefore capable\n\nof exiting his house and turning on his vehicle at any moment,\n\nthereby destroying the evidence. These circumstances, considered\n\n\n7 Apart from knowing that Owens was being investigated in relation\nto a double-shooting, officers Dyer and Lee were aware that Owens\nhad a military background and possessed firearms in his house.\nAlso, they did not want to be seen because their instructions were\nto verify the presence of Owens's vehicles without making contact\nwith him.\n\n\n -17-\n\fin conjunction with the inevitable natural dissipation of the\n\nvehicle's warmth, support a finding of exigency and, thus, of\n\nreasonableness as to Officer Dyer's search. See Almonte-Báez, 857\n\nF.3d at 32 (\"[T]he government . . . may invoke the exigent\n\ncircumstances exception when it can identify an 'objectively\n\nreasonable basis' for concluding that, absent some immediate\n\naction, the loss or destruction of evidence is likely.\" (citation\n\nomitted)).\n\n Finally, the scope and intrusiveness of Officer Dyer's\n\nsearch also weigh in favor of its reasonableness. See Maryland v.\n\nKing, 569 U.S. at 448 (\"Th[e] application of 'traditional standards\n\nof reasonableness' requires a court to weigh 'the promotion of\n\nlegitimate governmental interests' against 'the degree to which\n\n[the search] intrudes upon an individual's privacy.'\" (quoting\n\nWyoming v. Houghton, 526 U.S. 295, 300 (1999))). The scope of\n\nOfficer Dyer's search was limited to verifying the temperature of\n\nOwens's vehicle, and its intrusiveness was minimal -- Officer Dyer\n\nsimply placed his hand on the vehicle's hood and grill for a few\n\nseconds. Cf. Schmerber, 384 U.S. at 770-72 (holding that drawing\n\na drunk-driving suspect's blood was reasonable); Cupp v. Murphy,\n\n412 U.S. 291, 296 (1973) (holding that the \"ready destructibility\n\nof the evidence\" and the suspect's observed efforts to destroy it\n\n\"justified the police in subjecting him to the very limited\n\n\n -18-\n\fsearch,\" the scraping of his fingernails, which was \"necessary to\n\npreserve the highly evanescent evidence they found under his\n\nfingernails\"); Nikolas v. City of Omaha, 605 F.3d 539, 546 (8th\n\nCir. 2010) (holding that the exterior search of a garage, which\n\nwarrants \"protection comparable to that afforded the curtilage of\n\na residence,\" by \"look[ing] through the windows was\n\nconstitutionally reasonable\").\n\n In short, based on our fact-bound and case-specific\n\ninquiry, we conclude that Officer Dyer's warrantless search of\n\nOwens's vehicle while parked in his house's driveway did not offend\n\nthe Fourth Amendment because, within the totality of the\n\ncircumstances, it was objectively reasonable for Officer Dyer to\n\nbelieve the search was necessary to prevent the imminent\n\ndestruction of evidence.8\n\n\n8 Even if we were to find that the district court erred in denying\nOwens's motion to suppress evidence referencing the temperature of\nhis vehicle, we would deem such error harmless beyond a reasonable\ndoubt. See Chapman v. California, 386 U.S. 18, 24 (1967); see\nalso Chambers v. Maroney, 399 U.S. 42, 53 (1970). As discussed in\ndetail below, the Government presented a plethora of evidence\nunrelated to the temperature of Owens's vehicle that provided a\nmore than compelling basis for Owens's convictions. See infra at\n26-29; see also United States v. Jiménez, 419 F.3d 34, 42 (1st\nCir. 2005) (finding harmless error when erroneously admitted\nevidence \"pale[d] in light of the other evidence introduced at\ntrial\").\n\n By the same token, the very limited evidence regarding the\ntemperature of Owens's vehicle was inconsequential and cumulative.\nSee Harrington v. California, 395 U.S. 250, 254 (1969) (recognizing\nthat cumulative nature of contested evidence is a factor that\n\n -19-\n\fB. Motion to Suppress the Search Warrants\n\n During the investigation of Owens's crimes, a total of\n\nfive search warrants were issued.9 On appeal, Owens argues that\n\nthe district court erred in denying his motion to suppress the\n\nevidence seized pursuant to all the warrants, albeit on two\n\ndifferent grounds. He challenges the first four warrants arguing\n\nthat the affidavits on which they were based contained false or\n\nmisleading information.10 Specifically, Owens sustains that these\n\n\n\ncontributes to the conclusion that any error in admitting the\nevidence was harmless). To the extent that the warmth emanating\nfrom Owens's vehicle was probative, it served to suggest that his\nvehicle had been recently used. But it was essentially conceded\nthat Owens had left his house and driven his vehicle in the hours\nsurrounding the incident at the Chabot residence. Owens himself\ntestified that he left his house multiple times that night and\nearly morning. Still more, video surveillance footage placed him\noutside of his house and at Dunkin' Donuts not long after the time\nof the incident. Unsurprisingly, in its closing statement the\nGovernment did not once meaningfully refer to the temperature of\nOwens's vehicle.\n\n Thus, viewed in context, the evidence that Owens's vehicle felt\nwarm when Officer Dyer touched it was simply unessential to both\nthe Government's case and the jury's guilty verdicts. See United\nStates v. Hasting, 461 U.S. 499, 506 (1983) (\"Supervisory power to\nreverse a conviction is not needed as a remedy when the error to\nwhich it is addressed is harmless since by definition, the\nconviction would have been obtained notwithstanding the asserted\nerror.\").\n9 Two state courts, New Hampshire's Salem Circuit Court and\nMaine's Biddeford District Court, and the United States District\nCourt for the District of Maine issued the search warrants Owens\nchallenges on appeal.\n10 In his brief, Owens also posits that the district court erred\nbecause on their face the search warrant affidavits did not support\n\n -20-\n\ffour affidavits contain certain misstatements, omissions, and\n\ninconsistencies that affected the issuing judges' probable cause\n\ndeterminations. Owens challenges the fifth warrant to the extent\n\nits supporting affidavit relied on: (1) evidence seized pursuant\n\nto one of the four prior \"faulty warrants,\" or (2) the match\n\nbetween DNA collected from the crime scene and the DNA obtained\n\nfrom the buccal swab taken during the police interview, which Owens\n\navers was obtained \"due to [his] uninformed and/or involuntary\n\nconsent.\" On these grounds, Owens contends that we should\n\ninvalidate the warrants or, in the alternative, remand to the\n\ndistrict court for a hearing to \"fully determine the depth and\n\nbreadth\" of the purported inaccuracies. We disagree.\n\n Affidavits supporting search warrants are presumptively\n\nvalid. United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018);\n\nUnited States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). A\n\ndefendant may \"rebut this presumption and challenge the veracity\"\n\nof a warrant affidavit at a pretrial hearing commonly known as a\n\nFranks hearing. Barbosa, 896 Fd.3d at 67 (quotation and citations\n\nomitted); see also Franks v. Delaware, 438 U.S. 154, 171 (1978).\n\n\n\n\na finding of probable cause and did not establish a nexus between\nthe locations to be searched and the items sought. Owens, however,\ndoes not support this argument with anything more than conclusory\nstatements. Accordingly, we deem it waived on appeal. Zannino,\n895 F.2d at 17 (citations omitted).\n\n\n -21-\n\fTo be entitled to a Franks hearing, however, a defendant must first\n\nmake two \"substantial preliminary showings: (1) that a false\n\nstatement or omission in the affidavit was made knowingly and\n\nintentionally or with reckless disregard for the truth; and (2) the\n\nfalsehood or omission was necessary to the finding of probable\n\ncause.\" United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)\n\n(citation and internal quotation marks omitted).11 A defendant's\n\n\"failure to make a showing on either of these two elements dooms\n\n[his] challenge.\" McLellan, 792 F.3d at 208.\n\n In its order denying Owens's motion to suppress the\n\nevidence obtained pursuant to the search warrants, the district\n\ncourt made a detailed assessment of Owens's claims as to each\n\nmisstatement and omission he identified in the affidavits. Order\n\non Def.'s Mots. to Suppress and Dismiss, United States v. Owens,\n\nNo. 2:15-CR-55-NT, 2015 WL 6445320, at *12-18 (D. Me. Oct. 23,\n\n2015). In doing so, the district court concluded that Owens did\n\nnot make a showing of the two required elements -- intentionality\n\nand materiality -- for any single misstatement or omission\n\ncontained in the affidavits. Id. Specifically, it found that the\n\nmisstatements and omissions were either the result of negligence\n\n\n\n11 These showings are referred to as the \"intentionality\" and\n\"materiality\" prongs of the Franks test. See, e.g., United States\nv. Lull, 824 F.3d 109, 113-14 (4th Cir. 2016).\n\n\n -22-\n\for innocent mistakes, or had no bearing on the probable cause\n\ndeterminations.12 Id. As to Owens's contention regarding his lack\n\nof consent to the buccal swab during the police interview, the\n\ndistrict court reviewed video recordings of the interview and\n\nconcluded that Owens's consent \"was voluntarily given, and not the\n\nresult of duress or coercion, express or implied.\" Id. at *3 n.2\n\n(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)).\n\n After a careful analysis of the record, we agree with\n\nand adopt the district court's factual findings and legal\n\nconclusions regarding Owens's failure to make the intentionality\n\nand materiality showings that would entitle him to a Franks\n\nhearing, and Owens's consent to the buccal swab during the police\n\ninterview. Accordingly, we find no error in the district court's\n\ndenial of Owens's motions to suppress the evidence seized pursuant\n\nto the search warrants. See United States v. Arias, 848 F.3d 504,\n\n511 (1st Cir. 2017) (\"In considering a district court's decision\n\nto deny a Franks hearing, we review factual determinations for\n\n\n12 We note that, in support of his motion to suppress, Owens even\nlabelled as \"recklessly false\" statements that were actually true.\nFor example, Owens argued that one of the affidavits falsely\nidentified him as a suspect, but Owens was in fact a suspect at\nthe time the affidavit was submitted. The same goes for some of\nthe omissions on which Owens's motion rested. For example, he\nclaimed that one of the affidavits omitted that the Chabot\nresidence's intruder first attempted to gain entry into the room\nwhere Carol was hiding, when the affidavit specifically mentioned\nthis fact.\n\n\n -23-\n\fclear error and the probable cause determination de novo.\"\n\n(citation omitted)); see also United States v. Tzannos, 460 F.3d\n\n128, 136 (1st Cir. 2006) (recognizing that \"a defendant must meet\n\na high bar even to get a Franks hearing\").\n\nC. Sufficiency of Evidence for Owens's Convictions\n\n In reviewing sufficiency challenges, \"[w]e view 'all\n\n[the] evidence, credibility determinations, and reasonable\n\ninferences therefrom in the light most favorable to the verdict[]\n\nin order to determine whether the jury rationally could have found\n\nthat the government established each element of the charged offense\n\nbeyond a reasonable doubt.'\" United States v. Valdés-Ayala, 900\n\nF.3d 20, 30 (1st Cir. 2018) (quoting United States v. Serunjogi,\n\n767 F.3d 132, 139 (1st Cir. 2014)). Our analysis \"is weighted\n\ntoward preservation of the jury verdict.\" Rodríguez-Torres v.\n\nCaribbean Forms Mfr., Inc., 399 F.3d 52, 57 (1st Cir. 2005). \"[A]s\n\nlong as the guilty verdict finds support in a 'plausible rendition\n\nof the record,' it must stand.\" United States v. Moran, 312 F.3d\n\n480, 487 (1st Cir. 2002) (citation omitted). Importantly, as we\n\nconduct our review, we place \"no premium . . . upon direct as\n\nopposed to circumstantial evidence\" since \"both types of proof can\n\nadequately ground a conviction.\" United States v. Valerio, 48\n\nF.3d 58, 63 (1st Cir. 1995) (quoting United States v. Ortiz, 966\n\nF.2d 707, 711 (1st Cir. 1992)).\n\n\n -24-\n\f For Owens's conviction on Count One, interstate domestic\n\nviolence, the jury must have found that the Government proved\n\nbeyond reasonable doubt that: (1) Owens was married to Rachel; (2)\n\nOwens traveled in interstate commerce -- in this case, from New\n\nHampshire to Maine -- with the intent to \"kill [or] injure\" Rachel;\n\n(3) \"as a result of such travel,\" Owens \" commit[ted] or\n\nattempt[ed] to commit a crime of violence\" against Rachel; and\n\n(4) a \"life threatening bodily injury\" resulted from Owens's\n\nactions.13 18 U.S.C. § 2261(a)(1) & (b)(2). Meanwhile, for Owens's\n\nconviction on Count Two, discharge of a firearm during and in\n\nrelation to a crime of violence, the Government had to prove that\n\n\"during and in relation to [a] crime of violence,\" namely the crime\n\nof interstate domestic violence charged in Count One, Owens\n\nknowingly \"use[d] . . . a firearm\" by discharging it \"during and\n\nin relation\" to the commission of that crime. 18 U.S.C.\n\n§ 924(c)(1)(A)(iii).\n\n Owens's sufficiency challenge rests on the Government's\n\nalleged failure to prove that Owens was the person who intruded\n\n\n\n13 The Government sought to prove the fourth prong, that Rachel\nsustained a \"life threatening bodily injury,\" for purposes of 18\nU.S.C. § 2261(b)(2), which provides a penalty of up to 20 years'\nimprisonment if defendant's commission of interstate domestic\nviolence under § 2261(a) results in \"permanent disfigurement or\nlife threatening bodily injury to the victim.\" 18 U.S.C.\n§ 2261(b)(2).\n\n\n -25-\n\finto the Chabot residence, and the purported impossibility of Owens\n\ntravelling from Londonderry to Saco, invading the Chabot\n\nresidence, and returning to Londonderry within a time frame of\n\napproximately four hours and twenty-four minutes. Owens claims\n\nthat neither Carol, Steve, nor Rachel identified him as the\n\nintruder. Furthermore, Owens stresses that Rachel identified the\n\nintruder as a \"dark skinned person with dread locks [sic],\" which\n\ndoes not match his physical description since he is a \"white male\n\nwho does not have dread locks [sic].\" As to the second ground of\n\nhis sufficiency challenge, Owens claims that, because he was\n\npresent in Londonderry at 12:11 a.m. and 4:35 a.m., as reflected\n\nby two store's video surveillance footage, it was impossible for\n\nhim to have been present in Saco when the shooting took place,\n\n2:45-2:47 a.m. He focuses on the amount of time it would have\n\ntaken him to make the trip back from Saco to Londonderry. In\n\nparticular, Owens contends that a trip from the Chabot residence\n\nin Saco to Londonderry would take him at least two hours and\n\nfifteen minutes, while under the Government's theory it took him\n\napproximately one hour and forty-eight minutes. We are not\n\npersuaded.\n\n As the Government avers, the jury was presented a vast\n\namount of direct and circumstantial evidence identifying Owens as\n\nthe Chabot residence intruder. Specifically, the Government\n\n\n -26-\n\fidentifies the following incriminating evidence presented at\n\ntrial: (1) laboratory testing confirming that Owens's DNA was found\n\nin an area where the two window panes had been affixed to each\n\nother -- an area that would not have been exposed until the\n\nintruder shattered the outer pane -- as well as in the door handle\n\nand deadlock used to access the Chabot residence; (2) boot prints\n\nand a cast of boot impression taken from the scene that matched\n\nthe boots found in Owens's car a few hours after the incident;\n\n(3) testimony regarding bloodstains found on the armrest of the\n\ndriver's door and inside the driver's door of Owens's vehicle a\n\nfew hours after the incident; (4) Steve's testimony identifying\n\nthe intruder as a person with a similar physique to Owens's and\n\nwho, like Owens, wore glasses; (5) expert testimony revealing\n\nOwens's efforts to manipulate his laptop's clock to make it seem\n\nthat he was at his Londonderry home at the time of the incident;\n\nand, relatedly, (6) testimony regarding Owens's attempt to\n\nmanufacture an alibi by having his former boss lie to law\n\nenforcement about a Skype call that never took place. This\n\nevidence, in conjunction with the rest of the evidence presented\n\nat trial, allows a reasonable jury to conclude beyond reasonable\n\ndoubt that it was Owens who broke into the Chabot's residence.14\n\n\n14 Although not specifically listed by the Government as evidence\nthat led the jury to identify Owens as the Chabot residence's\nintruder, we note that the .9mm ammunition stamped \"WCC 1987\" and\n\n -27-\n\f Owens's reference to Rachel's alleged identification of\n\nthe intruder as a \"dark skinned person with dread locks [sic],\"\n\nwhich we read as an attempt to highlight evidence of exculpatory\n\nnature, does not help him. We are not to \"weigh the evidence or\n\nmake credibility judgments\" in our sufficiency review, as \"these\n\ntasks are solely within the jury's province.\" Serunjogi, 767 F.3d\n\nat 139 (quoting United States v. Hernández, 218 F.3d 58, 64 (1st\n\nCir. 2000)).15\n\n Finally, as to the alleged impossibility of Owens making\n\nthe trip back from Saco to Londonderry in less than two hours and\n\nfifteen minutes, the jury was presented with ample testimonial\n\nevidence, including Owens's own trial testimony, reflecting that\n\nthis ninety-mile trip usually took about one hour and thirty\n\nminutes. Moreover, Carol testified that Owens frequently bragged\n\nabout making the trip in just over an hour. Accordingly, the jury\n\nwas presented with sufficient evidence to conclude that Owens's\n\nLondonderry-Saco roundtrip would have lasted three hours or less,\n\n\n\n\ndark clothes seized from Owens's house also strongly support the\njury's guilty verdicts. The .9mm ammunition casings matched the\nshell casings recovered from the Chabot residence, while the dark\nclothes, some of which was found in Owens's washing machine,\nmatched that worn by the residence's intruder.\n15 In any event, we note that the record is devoid of any testimony\ndescribing the intruder as such. What Rachel did testify was that\nthe intruder was wearing a \"Jamaican hat\" or \"floppy [black] hat.\"\n\n\n -28-\n\fwhich fits easily within the four hour and twenty-four-minute\n\nwindow separating the two instances in which he was recorded at\n\nthe Londonderry stores.\n\n Based on the foregoing analysis, we conclude that there\n\nwas sufficient evidence to support Owens's convictions.\n\nD. Reasonableness of Owens's Life Sentence\n\n Owens challenges the procedural and substantive\n\nreasonableness of his sentence. He claims the district court erred\n\nprocedurally by not considering some factors outlined in 18 U.S.C.\n\n§ 3553, and that it substantively erred in imposing a life\n\nsentence.\n\n Our review is bifurcated. First, we ensure the district\n\ncourt did not commit any procedural errors, such as \"failing to\n\nconsider the section 3553(a) factors, selecting a sentence based\n\non clearly erroneous facts, or failing to adequately explain the\n\nchosen sentence.\" United States v. Gierbolini-Rivera, 900 F.3d 7,\n\n12 (1st Cir. 2018) (citation omitted). If a sentence is\n\nprocedurally sound, we proceed to the second step of our inquiry:\n\ndetermining whether the sentence is substantively reasonable. Id.\n\nIn reviewing the substantive reasonableness of a sentence, we\n\n\"focus[] on the duration of the sentence in light of the totality\n\nof the circumstances.\" Id. (citing United States v. Del Valle-\n\nRodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). Although a district\n\n\n -29-\n\fcourt is \"under a mandate to consider a myriad of relevant\n\nfactors,\" the weight it decides to afford to those factors is\n\n\"largely within the court's informed discretion.\" United States\n\nv. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also 18 U.S.C.\n\n§ 3553(a). We will ultimately find a sentence substantively\n\nreasonable \"so long as the sentencing court has provided a\n\n'plausible sentencing rationale' and reached a 'defensible\n\nresult.'\" Gierbolini-Rivera, 900 F.3d at 12 (citing United States\n\nv. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).16\n\n Because Owens failed to preserve his objection below, we\n\nreview his procedural challenge based on the district court's\n\nalleged failure to consider § 3553(a) factors for plain error.\n\nId. at 13. Hence, for Owens's procedural challenge to succeed, he\n\nmust show: \"(1) that an error occurred, (2) which was clear or\n\nobvious and which not only (3) affected the defendant's substantial\n\nrights, but also (4) seriously impaired the fairness, integrity,\n\nor public reputation of judicial proceedings.\" Id. at 12 (citations\n\n\n\n16 In considering a challenge to the substantive reasonableness\nof a sentence preserved below, this court applies the abuse of\ndiscretion standard. Gierbolini-Rivera, 900 F.3d at 14. Owens,\nhowever, did not object to his life sentence below. In such cases,\nit remains an open question in this Circuit whether the abuse of\ndiscretion standard or the plain error standard applies. Id. at\n15 (citation omitted). Notwithstanding, we need not decide this\nissue in the instant case given that Owens's claim fails under\nboth.\n\n\n -30-\n\fomitted).\n\n Owens's procedural challenge to his sentence fails on\n\nthe first prong of the plain error test. The record reveals that\n\nthe district court took into consideration all the mitigating\n\nfactors Owens claims it did not, namely, his military accolades,\n\nlack of criminal history, productive work history, and age. See\n\n18 U.S.C. § 3553(a) (stating that a sentencing court \"shall\n\nconsider . . . the history and characteristics of the defendant\").\n\nThe district court, however, weighed these mitigating factors\n\nagainst the following aggravating factors: the severity of the\n\ncrime; Owens's premeditation, given that he planned to kill Rachel\n\nboth to avoid the responsibility of caring for her as she suffered\n\nfrom dementia and to be able to continue his affair, while avoiding\n\nthe scorn that divorcing Rachel would have caused; the attempted\n\nmurder of a witness and friend, Steve, to prevent him from\n\nidentifying Owens as the intruder; Owens's deceitful character, as\n\nrevealed through his participation at trial and during allocution;\n\nand, finally, the need to protect the public, among others. See\n\nid. This balancing of sentencing factors \"is precisely the\n\nfunction that a sentencing court is expected to perform,\" United\n\nStates v. Ledée, 772 F.3d 21, 41 (1st Cir. 2014) (citation\n\nomitted), and we find that the district judge did not procedurally\n\nerr, plainly or otherwise, while carrying it out in the present\n\n\n -31-\n\fcase.\n\n Further, the district court thoroughly explained the\n\nrationale behind Owens's life sentence. Apart from the factors\n\nlisted above, it emphasized Owens's \"cold-blooded behavior . . .\n\n[and] obvious lack of conscience,\" as well as the \"long lasting\n\nemotional damage to both Chabots\" and the severity of the injuries\n\ninflicted on Rachel. Considering the totality of the\n\ncircumstances of Owens's crime, we find that the district court's\n\nlife sentence is a defensible result. See Gierbolini-Rivera, 900\n\nF.3d at 12. Accordingly, we conclude that the district court did\n\nnot substantively err.\n\nE. Motion to Dismiss the Indictment on Double Jeopardy Grounds\n\n Finally, Owens claims that the district court erred in\n\ndenying his motion to dismiss the indictment on double jeopardy\n\ngrounds. The Double Jeopardy Clause \"provides that no person may\n\nbe tried more than once 'for the same offence.'\" Currier v.\n\nVirginia, 138 S. Ct. 2144, 2149 (2018). It protects \"an individual\n\nagainst (1) a second prosecution for the same offense, following\n\nan acquittal; (2) a second prosecution for the same offense,\n\nfollowing a conviction; and (3) multiple punishments for the same\n\noffense.\" United States v. Stoller, 78 F.3d 710, 714 (1st Cir.\n\n1996) (citation omitted). Owens, however, does not establish that\n\nhis double jeopardy challenge is premised on a prior criminal\n\n\n -32-\n\fconviction, acquittal, or punishment for the same offenses for\n\nwhich he was convicted and sentenced in this case.17 We thus find\n\nno error in the district court's denial of his motion to dismiss\n\nthe indictment on double jeopardy grounds.\n\n III. CONCLUSION\n\n For the reasons explained above, each of Owens's claims\n\nis unavailing. We therefore affirm the district court's denial of\n\nhis pretrial motions, his convictions, and sentence.\n\n Affirmed.\n\n\n\n\n17He does not even allege that he was subject to any prior criminal\nprosecution for offenses resulting from the events that unfolded\nat the Chabot residence.\n\n\n -33-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Gregory OWENS, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 16-1945\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellee,\\n\\n v.\\n\\n GREGORY OWENS,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MAINE\\n [Hon. Nancy Torresen, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Torruella and Thompson, Circuit Judges.\\n\\n\\n Sarah A. Churchill, with whom Nichols & Churchill, P.A., was\\non brief, for appellant.\\n John M. Pellettieri, Attorney, Appellate Section, Criminal\\nDivision, U.S. Department of Justice, with whom Sangita K. Rao,\\nAttorney, Appellate Section, Criminal Division, John P. Cronan,\\nActing Assistant Attorney General, Criminal Division, Matthew S.\\nMiner, Deputy Assistant Attorney General, Criminal Division,\\nHalsey B. Frank, United States Attorney, Darcie McElwee, Assistant\\nUnited States Attorney, and James W. Chapman, Assistant United\\nStates Attorney, were on brief, for appellee.\\n\\n\\n\\n February 26, 2019\\n\\f TORRUELLA, Circuit Judge. This is a case about a double\\n\\nlife, an attempted uxoricide, and excellent police work.\\n\\nDefendant-Appellant Gregory Owens (\\\"Owens\\\") was convicted of\\n\\ninterstate domestic violence in violation of 18 U.S.C. § 2261(a)(1)\\n\\nand (b)(2); and discharge of a firearm during and in relation to\\n\\na crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).\\n\\nHe was sentenced to life in prison. On appeal, Owens challenges\\n\\nthe sufficiency of evidence supporting his convictions, the\\n\\nreasonableness of his sentence, and the district court's denial of\\n\\nhis pretrial motions seeking to suppress evidence and dismiss the\\n\\nindictment on double jeopardy grounds. After careful review, we\\n\\nfind Owens's convictions supported by sufficient evidence, his\\n\\nsentence substantively reasonable, and the motions for suppression\\n\\nand dismissal properly denied. Seeing no reason to vacate Owens's\\n\\nconvictions or sentence on the grounds that he has presented, we\\n\\naffirm.\\n\\n I. BACKGROUND\\n\\nA. Factual Background\\n\\n 1. The Home Invasion\\n\\n In the early morning hours of December 18, 2014, at\\n\\napproximately 2:45 a.m., Carol Chabot (\\\"Carol\\\") awoke to a\\n\\nshuffling noise coming from the downstairs of her two-story house\\n\\nin Saco, Maine. Sensing something was not right, she woke her\\n\\n\\n -2-\\n\\fhusband, Steve Chabot (\\\"Steve\\\"), who lay beside her. Steve,\\n\\nhowever, did not hear the noise but told Carol \\\"it's probably\\n\\nRachel\\\" who caused the noise — with \\\"Rachel\\\" being Rachel Owens\\n\\n(\\\"Rachel\\\"), a family friend who was staying the night. Then Steve\\n\\nrolled over to go back to sleep. Undeterred, Carol got out of bed\\n\\nto investigate.\\n\\n As she walked down the upstairs hallway, toward the spare\\n\\nbedroom where Rachel was staying, Carol heard a second noise --\\n\\nthis time the loud sound of glass shattering. With haste, she\\n\\nlooked into the spare bedroom and noticed Rachel was sound asleep\\n\\nin bed. Steve also heard the loud noise and hurried out of bed to\\n\\ncheck what was going on. He peeked out of his bedroom towards the\\n\\nstaircase and saw an intruder racing up the stairs with a gun in\\n\\nhis right hand. The intruder, later identified as Owens, was\\n\\napproximately 5 feet 9 inches tall with a slim, athletic build; he\\n\\nwore dark clothing, gloves, and a black mask with a single opening\\n\\nat the eyes and glasses protruding from it.\\n\\n Steve shouted an expletive at the intruder and dashed\\n\\nback into the master bedroom. Carol, who did not see the intruder\\n\\nbut saw a look of horror on her husband's face, ran into a third\\n\\nbedroom used as a home office and barricaded herself inside. The\\n\\nintruder followed her and tried to force his way into the room,\\n\\nbut, after a few failed attempts, suddenly stopped. He then walked\\n\\n\\n -3-\\n\\ftoward the room where Rachel lay and fired at her three times,\\n\\nhitting her in the head, arm, and torso.\\n\\n Having heard the gun shots, Steve peeked out of the\\n\\nmaster bedroom again. He saw the intruder about two feet away,\\n\\nheading towards him. They looked at each other face to face.\\n\\nSteve immediately slammed the door shut and held his arm against\\n\\nit. Undaunted, the intruder kicked the door in, looked inside\\n\\nthrough the now slightly-opened doorway, and fired shots through\\n\\nthe door, striking Steve in the arm, neck, and rib area.1 The\\n\\nintruder then abandoned the Chabot residence. He did not take any\\n\\nvaluables with him.\\n\\n 2. The Crime Scene\\n\\n In response to a 911 call from Steve Chabot received at\\n\\n2:47 a.m., police arrived at the Chabot residence. During their\\n\\ninvestigation of the crime scene, officers learned that the\\n\\nintruder gained entry into the garage through a door located in\\n\\nthe back of the house, and into the interior of the Chabot\\n\\nresidence through a door located in the garage that led to the\\n\\nkitchen. The upper part of this garage door was double-paned\\n\\nglass, sectioned into nine squares by wood framing. The intruder\\n\\n\\n\\n1 Both Rachel and Steve survived the incident, but it left Rachel\\nwith a bullet lodged in her brain and severely limited use of her\\nright hand.\\n\\n\\n -4-\\n\\fbroke the outer pane of the lower left square of glass, leaving\\n\\nglass shards scattered on the floor and separating the inner pane,\\n\\nwhich remained intact, from the door, thereby creating a gap that\\n\\nallowed the intruder to reach in and unlock the deadbolt. Officers\\n\\nretrieved human hair from the area between the shattered outer\\n\\npane of glass and the inner pane of glass, and swabbed the area\\n\\nfor DNA.\\n\\n Police officers also recovered numerous .9mm shell\\n\\ncasings stamped \\\"WCC 1987,\\\" later identified as 27-year-old\\n\\nWestern Cartridge Company casings, from the second floor of the\\n\\nhouse.\\n\\n Finally, while inspecting the periphery of the Chabot\\n\\nresidence, officers found a footprint in the damp dirt outside the\\n\\nfirst-floor window near the garage and proceeded to make a cast of\\n\\nit.\\n\\n 3. Search, Intervention, and Interview\\n\\n At around 5:00 a.m., Maine police officers informed New\\n\\nHampshire law enforcement of the shooting at the Chabot residence.\\n\\nTwo New Hampshire police officers, Randy Dyer (\\\"Officer Dyer\\\") and\\n\\nKeith Lee (\\\"Officer Lee\\\"), were instructed to visit Owens's\\n\\nresidence in the town of Londonderry to verify the presence of his\\n\\ntwo vehicles. They were, however, instructed not to make contact\\n\\nwith Owens.\\n\\n\\n -5-\\n\\f At approximately 5:20 a.m., the two police officers\\n\\narrived at Owens's neighborhood and parked their car at the\\n\\nbeginning of Winthrop Road, the dead-end street where Owens's\\n\\nresidence was located. Under the cover of darkness, they began\\n\\nheading down Winthrop Road toward the house. At around 5:24 a.m.,\\n\\nbefore the officers could reach their destination, a state trooper\\n\\npatrol car with flashing blue lights drove near the Owens\\n\\nresidence. Contemporaneously, a light visible from the house's\\n\\nfront windows went off, making the inside of the house go dark.\\n\\nThe officers stopped the trooper and instructed him to turn off\\n\\nthe flashing lights. After this, the officers, now accompanied by\\n\\nthe trooper, continued their approach towards the residence. With\\n\\nOfficer Lee and the trooper providing cover, Officer Dyer\\n\\neventually made his way into the driveway, where he placed his\\n\\nhand on Owens's Hyundai Santa Fe SUV (\\\"Owens's vehicle\\\") and\\n\\nnoticed its hood and grill were warm.2 The officers and trooper\\n\\nthen retreated back down Winthrop Road to the staging area.\\n\\n Several minutes after arriving at the staging area, the\\n\\nofficers saw Owens's vehicle exit Winthrop Road and proceeded to\\n\\n\\n\\n2 Owens's vehicle was parked on the upper part of his driveway,\\nwith its nose facing the garage. The driveway is easily observable\\nand accessible to anyone passing by in the neighborhood. It is\\nnot enclosed in any way, nor does it have any fences or signs\\nwarning visitors to stay away.\\n\\n\\n -6-\\n\\ffollow it. The vehicle stopped at a nearby Circle K store, where\\n\\nOwens got out. The officers approached Owens and told him that\\n\\nhis wife had been shot. Owens acted surprised and complained of\\n\\nchest pains, after which the officers requested medical attention\\n\\nfor him. While waiting for the medical personnel to arrive, the\\n\\nofficers saw blood, a pair of boots with wet stains, and a computer\\n\\nhard drive inside Owens's vehicle. Owens agreed to go with the\\n\\nofficers to the police station for a videotaped interview (the\\n\\n\\\"police interview\\\") after receiving medical assistance.\\n\\n During the police interview, Owens provided a detailed\\n\\naccount of his night. Specifically, he explained, albeit with\\n\\nsome variation, that, after speaking to his wife Rachel at around\\n\\n9:15 p.m., he went to bed, but got up a few times to work on his\\n\\ncomputer on a proposal for a military consultancy contract with\\n\\nthe Ukrainian government that was due the next day. In particular,\\n\\nOwens claimed that at around 2:30 a.m. –- fifteen minutes before\\n\\nthe Chabot residence was broken into -- he sent an e-mail to one\\n\\nof his colleagues regarding a tweak to the proposal.\\n\\n Owens also admitted to leaving his home on multiple\\n\\noccasions throughout the course of the night and early morning:\\n\\nfirst, to Circle K at around 12:30 a.m. to get a soda and\\n\\ncigarettes; then, to Dunkin' Donuts between 4:15-4:45 a.m. to get\\n\\ncoffee and donuts; and finally, to Circle K again at around\\n\\n\\n -7-\\n\\f6:30 a.m. to grab another cup of coffee, at which point he came in\\n\\ncontact with officers Dyer and Lee. Furthermore, he informed the\\n\\ninterviewing officers that he was a military retiree and had what\\n\\nhe described as an \\\"arsenal\\\" of weapons in his house. After\\n\\ncollecting some evidence (e.g., DNA samples from his hands and\\n\\nmouth, clothes, etc.), the police released Owens from custody.\\n\\n 4. The Double-Life and Motive\\n\\n To fully understand the motive behind Owens's crime, we\\n\\nmust look back to the preceding decade. In 2005, Owens met Betsy\\n\\nWandtke (\\\"Wandtke\\\"), a woman from Wisconsin, in a flight back from\\n\\na hunters' rights convention, which they had both attended.3 About\\n\\nthree years later, their relationship turned into an affair. As\\n\\nthe affair progressed, Owens and Wandtke began to spend more time\\n\\ntogether -- up to ten days a month. Owens considered Wandtke his\\n\\n\\\"lover\\\" and his \\\"life.\\\" He represented to her that he was in the\\n\\nprocess of divorcing Rachel, which Wandtke was unable to\\n\\nindependently confirm, given that it was not true. To partly\\n\\nexplain his long absences when he was actually with Rachel in New\\n\\nHampshire, Owens told Wandtke that his work as a military\\n\\nconsultant required him to travel and take part in covert missions\\n\\nin places like Afghanistan.\\n\\n\\n\\n3 From the moment they met, Wandtke was aware of Owens's marriage.\\n\\n\\n -8-\\n\\f While the affair continued, in or about 2011, Rachel\\n\\nbegan to develop early-onset dementia. The responsibility of\\n\\nhaving to care for her burdened Owens, but did not deter him from\\n\\ncontinuing his affair with Wandtke. Then, on December 3, 2014,\\n\\nthe affair came to an abrupt end. Due to an inadvertent call from\\n\\nOwens's mobile phone, Wandtke discovered that Owens was leading a\\n\\ndouble-life -- his marriage with Rachel continued in regular\\n\\ncourse. Wandtke confronted Owens about it and told him their\\n\\nrelationship was over.4 After a failed attempt to convince Wandtke\\n\\nthat she misunderstood the conversation she overheard, Owens\\n\\npromised Wandtke he was going to make it up to her.\\n\\n A mere fifteen days after the breakup, the events at the\\n\\nChabot residence unfolded. Furthermore, in the days following the\\n\\nshooting, Owens contacted Wandtke via e-mail and told her that he\\n\\nwas being \\\"targeted\\\" because of his work and instructed her to \\\"go\\n\\ndark\\\" and not tell anyone about their relationship. Then, on\\n\\nDecember 31, 2014 -- thirteen days after the incident at the Chabot\\n\\nresidence and with his wife still recovering from a gunshot wound\\n\\n\\n4 Owens was with Wandtke in Wisconsin a little over a week before\\ntheir breakup. They had plans to celebrate Thanksgiving together.\\nNotwithstanding, the weekend before the holiday, Owens suddenly\\ncancelled their plans, leaving Wisconsin for a supposed emergency\\ncovert mission in Afghanistan. Then, on December 3, 2014, Wandtke\\nfound out that Owens was not in Afghanistan, but rather with Rachel\\nin New Hampshire, as the result of the accidental call made from\\nOwens's cell phone.\\n\\n\\n -9-\\n\\fto the head -- Owens unexpectedly arrived at Wandtke's doorstep\\n\\nwith a limousine and roses. Owens and Wandtke celebrated New\\n\\nYear's Eve and spent time together during the first week of 2015.\\n\\nOn January 4, 2015, Owens returned to New Hampshire. Shortly\\n\\nthereafter, on January 11, 2015, Owens was arrested.\\n\\nB. Procedural Background\\n\\n On March 11, 2015, a grand jury indicted Owens on two\\n\\ncounts: interstate domestic violence (Count One) and discharge of\\n\\na firearm during and in relation to a crime of violence (Count\\n\\nTwo). On July 6, 2015, Owens filed a motion to dismiss the\\n\\nindictment on double jeopardy grounds; a motion to suppress\\n\\nevidence gathered as the result of the entry into his property,\\n\\nnamely, into his driveway; and, a motion to suppress search\\n\\nwarrants issued and executed during the investigation for his\\n\\nvehicles and house, electronic items (e.g., an iPhone, Magellan\\n\\nGPS, etc.), and an external hard drive and a laptop computer in a\\n\\nSwiss Army case.5 The district court held an evidentiary hearing\\n\\n\\n5 Owens also moved to suppress DNA evidence obtained from a blood\\nsample collected at the Chabot residence, and from a buccal swab\\nlaw enforcement performed on his cheeks during the police\\ninterview. Owens, however, eventually withdrew his motion as to\\nthe blood sample collected from the Chabot residence.\\nNotwithstanding, we note that a heading in his brief makes specific\\nreference to the collection of the blood sample, which may be\\ninterpreted to suggest his intent to still seek suppression of the\\nDNA test results obtained therefrom. The Government attributes\\nOwens's reference to the collection of the blood sample in the\\nheading to human error. It asserts that the section with this\\n\\n -10-\\n\\fon Owens's motion to dismiss and motions to suppress. Evidence\\n\\nwas presented, including the testimony of the officer who touched\\n\\nOwens's vehicle, as well as that of the officers who drafted the\\n\\naffidavits on which the search warrants were based. Unpersuaded,\\n\\nthe district court denied Owens's motions to dismiss and to\\n\\nsuppress.\\n\\n A ten-day jury trial followed. The jury found Owens\\n\\nguilty of both counts. For these charges, the district court\\n\\nsentenced Owens to life imprisonment (240 Months on Count One and\\n\\nLife on Count Two). Owens timely appealed.\\n\\n II. ANALYSIS\\n\\nA. Motion to Suppress Evidence Gathered as a Result of Officer\\n Dyer's Entry into the Driveway\\n\\n We review a district court's denial of a motion to\\n\\nsuppress scrutinizing its factual findings for clear error and its\\n\\nlegal conclusions de novo. United States v. Flores, 888 F.3d 537,\\n\\n543 (1st Cir. 2018) (citations omitted); United States v. Brown,\\n\\n\\n\\n\\nheading actually deals with Owens's challenge to a search warrant\\naffidavit that mentions DNA evidence obtained from Owens's police\\ninterview buccal swab. See infra at 21-24. Based on the section's\\ncontent, we agree. Neither there nor anywhere else in his brief\\ndoes Owens develop an argument for suppression of the DNA test\\nresults obtained from the collection of a blood sample at the\\nChabot residence. Accordingly, Owens must \\\"forever hold [his]\\npeace\\\" with the Government's use of this evidence. United States\\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations and internal\\nquotation marks omitted).\\n\\n\\n -11-\\n\\f510 F.3d 57, 64 (1st Cir. 2007). To succeed on appeal, a defendant\\n\\n\\\"must show that no reasonable view of the evidence supports the\\n\\ndistrict court's decision.\\\" United States v. Dunbar, 553 F.3d 48,\\n\\n55 (1st Cir. 2009) (citations and internal quotation marks\\n\\nomitted).\\n\\n Owens argues that Officer Dyer's entry into his driveway\\n\\nand touching of his vehicle parked therein constituted an illegal\\n\\nsearch because the driveway formed part of his house's curtilage\\n\\nand, therefore, was protected from warrantless searches by the\\n\\nFourth Amendment. Accordingly, he sustains that the district court\\n\\nerred in denying the suppression of evidence obtained as a result\\n\\nof the search, namely, any reference to the temperature of his\\n\\nvehicle's hood and grill.\\n\\n The Fourth Amendment provides in relevant part that the\\n\\n\\\"right of the people to be secure in their persons, houses, papers,\\n\\nand effects, against unreasonable searches and seizures, shall not\\n\\nbe violated.\\\" U.S. Const. amend. IV. \\\"When the Government obtains\\n\\ninformation by physically intruding on persons, houses, papers, or\\n\\neffects, a search within the original meaning of the Fourth\\n\\nAmendment has undoubtedly occurred.\\\" Florida v. Jardines, 569\\n\\nU.S. 1, 5 (2013) (citations and internal quotation marks omitted).\\n\\n For Fourth Amendment purposes, a house's curtilage is\\n\\n\\\"the area immediately surrounding and associated with the home.\\\"\\n\\n\\n -12-\\n\\fId. at 6 (citation and internal quotation marks omitted). \\\"The\\n\\nprotection afforded [to a house's] curtilage is essentially a\\n\\nprotection of families and personal privacy in an area intimately\\n\\nlinked to the home, both physically and psychologically, where\\n\\nprivacy expectations are most heightened.\\\" California v. Ciraolo,\\n\\n476 U.S. 207, 212–13 (1986). Therefore, \\\"[w]hen a law enforcement\\n\\nofficer physically intrudes on the curtilage to gather evidence,\\n\\na search within the meaning of the Fourth Amendment has occurred.\\n\\n. . . Such conduct thus is presumptively unreasonable absent a\\n\\nwarrant.\\\" Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)\\n\\n(citation omitted).\\n\\n In determining whether a specific part of a house falls\\n\\nwithin its curtilage, we consider:\\n\\n [1] the proximity of the area claimed to be curtilage to\\n the home, [2] whether the area is included within an\\n enclosure surrounding the home, [3] the nature of the\\n uses to which the area is put, and [4] the steps taken\\n by the resident to protect the area from observation by\\n people passing by.6\\n\\nBrown, 510 F.3d at 65 (alterations in original) (quoting United\\n\\nStates v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002) (quoting United\\n\\nStates v. Dunn, 480 U.S. 294, 301 (1987))). In the instant case,\\n\\n\\n\\n6 These factors are eponymously called the Dunn factors after the\\nSupreme Court's seminal opinion in United States v. Dunn, 480 U.S.\\n294 (1987). See, e.g., United States v. Bain, 874 F.3d 1, 14 (1st\\nCir. 2017).\\n\\n\\n -13-\\n\\fhowever, we need not address these factors given that, even\\n\\nassuming that the driveway formed part of the house's curtilage,\\n\\nOfficer Dyer faced exigent circumstances when he entered the\\n\\ndriveway and placed his hand on Owens's vehicle, which\\n\\ncircumscribes his warrantless search within the bounds of the\\n\\nFourth Amendment. We explain.\\n\\n Although generally a warrant must be secured before\\n\\nsearching a home and its curtilage, \\\"the warrant requirement is\\n\\nsubject to certain reasonable exceptions.\\\" Kentucky v. King\\n\\n(King), 563 U.S. 452, 459 (2011) (citation omitted). These\\n\\nexceptions are born out of courts' need to \\\"balance the privacy-\\n\\nrelated and law enforcement-related concerns to determine if the\\n\\nintrusion was reasonable\\\" under the Fourth Amendment. Maryland v.\\n\\nKing, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531\\n\\nU.S. 326, 331 (2001)). \\\"One well-recognized exception applies\\n\\nwhen 'the exigencies of the situation make the needs of law\\n\\nenforcement so compelling that [a] warrantless search is\\n\\nobjectively reasonable under the Fourth Amendment.'\\\" King, 563\\n\\nU.S. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978));\\n\\nsee also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016)\\n\\n(\\\"The exigent circumstances exception allows a warrantless search\\n\\nwhen an emergency leaves police insufficient time to seek a\\n\\nwarrant.\\\" (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))).\\n\\n\\n -14-\\n\\fThis exception, commonly known as the \\\"exigent circumstances\\n\\nexception,\\\" has been applied in instances where the \\\"need 'to\\n\\nprevent the imminent destruction of evidence'\\\" justifies a\\n\\nwarrantless search. King, 563 U.S. at 460 (citing Brigham City,\\n\\nUtah v. Stuart, 547 U.S. 398, 403 (2006)).\\n\\n In determining whether exigent circumstances justify a\\n\\nwarrantless search, we examine the totality of the circumstances.\\n\\nMissouri v. McNeely, 569 U.S. 141, 149 (2013). Accordingly, in\\n\\nthe present case we begin by considering the gravity of the crime\\n\\nbeing investigated and the weather conditions at the time of the\\n\\nsearch to ascertain the constitutionality of Officer Dyer's\\n\\nactions. Officer Dyer was investigating a crime of the most\\n\\nserious nature, a potential double-homicide, on a cold December\\n\\nmorning. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); United\\n\\nStates v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985) (listing\\n\\nthe \\\"gravity of the underlying offense\\\" as one of the factors that\\n\\ncourts must consider \\\"[i]n determining whether the circumstances\\n\\nof a case fall into one of the emergency conditions characterized\\n\\nas exigent circumstances\\\"). As conceded by Owens's counsel at\\n\\noral argument, the temperature in Londonderry, New Hampshire at\\n\\nthe time of the search was 30 degrees Fahrenheit. In this cold\\n\\nweather, it was reasonable for Officer Dyer to believe that any\\n\\nwarmth emanating from the vehicle -- the evidence -- would evanesce\\n\\n\\n -15-\\n\\for be destroyed before he could obtain a search warrant.\\n\\n It is not unprecedented to make a finding of exigency\\n\\nbased on a naturally occurring event's destructive consequence\\n\\nover critical evidence. In McNeely, the Supreme Court recognized\\n\\nthat the \\\"the natural dissipation of alcohol in the blood may\\n\\nsupport a finding of exigency in . . . specific case[s].\\\" 569\\n\\nU.S. at 156. Such was the case in Schmerber, where the Court\\n\\nconcluded that \\\"further delay in order to secure a warrant after\\n\\nthe time spent investigating the scene of the accident and\\n\\ntransporting the injured suspect to the hospital to receive\\n\\ntreatment would have threatened the destruction of evidence\\\" given\\n\\nthat it would have \\\"negatively affect[ed] the probative value of\\n\\nthe [blood alcohol test] results.\\\" McNeely, 569 U.S. at 152\\n\\n(citing Schmerber v. California, 384 U.S. 757, 770-71 (1966)).\\n\\n We do not find it difficult to draw parallels between\\n\\nthe exigent circumstances found in Schmerber and those in the\\n\\ninstant case. Unlike other \\\"destruction-of-evidence cases\\\" in\\n\\nwhich a \\\"suspect has control over easily disposable evidence,\\\"\\n\\nhere, like in Schmerber, law enforcement dealt with the type of\\n\\n\\\"evidence [that]. . . naturally dissipates over time in a gradual\\n\\nand relatively predictable manner.\\\" Id. at 153. Just as the\\n\\npassing of time negatively affected the probative value of the\\n\\nblood-alcohol test in Schmerber, it negatively affected the\\n\\n\\n -16-\\n\\fprobative value of Officer Dyer's gauging of the temperature of\\n\\nOwens's vehicle through his sense of touch, and, as such,\\n\\nthreatened the destruction or loss of evidence. See id. at 152.\\n\\n The natural dissipation of the vehicle's heat, however,\\n\\nwas not the only way the evidence could have been lost in the\\n\\npresent case. If Owens turned on his vehicle's engine, as he\\n\\neventually did, the evidence would have likewise been destroyed.\\n\\nIgnition would have made it practically impossible for law\\n\\nenforcement to know, based on touch, whether the vehicle was\\n\\npreviously warm. In deciding whether to enter the driveway and\\n\\ntouch Owens's vehicle, Officer Dyer was \\\"forced to make [a] split-\\n\\nsecond judgment[] -- in circumstances that [were] tense,\\n\\nuncertain, and rapidly evolving.\\\" United States v. Almonte-Báez,\\n\\n857 F.3d 27, 31 (1st Cir. 2017) (quoting King, 563 U.S. at 466).7\\n\\nBecause a light inside Owens's house was shut off a few minutes\\n\\nbefore his entry into the driveway, Officer Dyer had an objectively\\n\\nreasonable basis to believe Owens was awake and therefore capable\\n\\nof exiting his house and turning on his vehicle at any moment,\\n\\nthereby destroying the evidence. These circumstances, considered\\n\\n\\n7 Apart from knowing that Owens was being investigated in relation\\nto a double-shooting, officers Dyer and Lee were aware that Owens\\nhad a military background and possessed firearms in his house.\\nAlso, they did not want to be seen because their instructions were\\nto verify the presence of Owens's vehicles without making contact\\nwith him.\\n\\n\\n -17-\\n\\fin conjunction with the inevitable natural dissipation of the\\n\\nvehicle's warmth, support a finding of exigency and, thus, of\\n\\nreasonableness as to Officer Dyer's search. See Almonte-Báez, 857\\n\\nF.3d at 32 (\\\"[T]he government . . . may invoke the exigent\\n\\ncircumstances exception when it can identify an 'objectively\\n\\nreasonable basis' for concluding that, absent some immediate\\n\\naction, the loss or destruction of evidence is likely.\\\" (citation\\n\\nomitted)).\\n\\n Finally, the scope and intrusiveness of Officer Dyer's\\n\\nsearch also weigh in favor of its reasonableness. See Maryland v.\\n\\nKing, 569 U.S. at 448 (\\\"Th[e] application of 'traditional standards\\n\\nof reasonableness' requires a court to weigh 'the promotion of\\n\\nlegitimate governmental interests' against 'the degree to which\\n\\n[the search] intrudes upon an individual's privacy.'\\\" (quoting\\n\\nWyoming v. Houghton, 526 U.S. 295, 300 (1999))). The scope of\\n\\nOfficer Dyer's search was limited to verifying the temperature of\\n\\nOwens's vehicle, and its intrusiveness was minimal -- Officer Dyer\\n\\nsimply placed his hand on the vehicle's hood and grill for a few\\n\\nseconds. Cf. Schmerber, 384 U.S. at 770-72 (holding that drawing\\n\\na drunk-driving suspect's blood was reasonable); Cupp v. Murphy,\\n\\n412 U.S. 291, 296 (1973) (holding that the \\\"ready destructibility\\n\\nof the evidence\\\" and the suspect's observed efforts to destroy it\\n\\n\\\"justified the police in subjecting him to the very limited\\n\\n\\n -18-\\n\\fsearch,\\\" the scraping of his fingernails, which was \\\"necessary to\\n\\npreserve the highly evanescent evidence they found under his\\n\\nfingernails\\\"); Nikolas v. City of Omaha, 605 F.3d 539, 546 (8th\\n\\nCir. 2010) (holding that the exterior search of a garage, which\\n\\nwarrants \\\"protection comparable to that afforded the curtilage of\\n\\na residence,\\\" by \\\"look[ing] through the windows was\\n\\nconstitutionally reasonable\\\").\\n\\n In short, based on our fact-bound and case-specific\\n\\ninquiry, we conclude that Officer Dyer's warrantless search of\\n\\nOwens's vehicle while parked in his house's driveway did not offend\\n\\nthe Fourth Amendment because, within the totality of the\\n\\ncircumstances, it was objectively reasonable for Officer Dyer to\\n\\nbelieve the search was necessary to prevent the imminent\\n\\ndestruction of evidence.8\\n\\n\\n8 Even if we were to find that the district court erred in denying\\nOwens's motion to suppress evidence referencing the temperature of\\nhis vehicle, we would deem such error harmless beyond a reasonable\\ndoubt. See Chapman v. California, 386 U.S. 18, 24 (1967); see\\nalso Chambers v. Maroney, 399 U.S. 42, 53 (1970). As discussed in\\ndetail below, the Government presented a plethora of evidence\\nunrelated to the temperature of Owens's vehicle that provided a\\nmore than compelling basis for Owens's convictions. See infra at\\n26-29; see also United States v. Jiménez, 419 F.3d 34, 42 (1st\\nCir. 2005) (finding harmless error when erroneously admitted\\nevidence \\\"pale[d] in light of the other evidence introduced at\\ntrial\\\").\\n\\n By the same token, the very limited evidence regarding the\\ntemperature of Owens's vehicle was inconsequential and cumulative.\\nSee Harrington v. California, 395 U.S. 250, 254 (1969) (recognizing\\nthat cumulative nature of contested evidence is a factor that\\n\\n -19-\\n\\fB. Motion to Suppress the Search Warrants\\n\\n During the investigation of Owens's crimes, a total of\\n\\nfive search warrants were issued.9 On appeal, Owens argues that\\n\\nthe district court erred in denying his motion to suppress the\\n\\nevidence seized pursuant to all the warrants, albeit on two\\n\\ndifferent grounds. He challenges the first four warrants arguing\\n\\nthat the affidavits on which they were based contained false or\\n\\nmisleading information.10 Specifically, Owens sustains that these\\n\\n\\n\\ncontributes to the conclusion that any error in admitting the\\nevidence was harmless). To the extent that the warmth emanating\\nfrom Owens's vehicle was probative, it served to suggest that his\\nvehicle had been recently used. But it was essentially conceded\\nthat Owens had left his house and driven his vehicle in the hours\\nsurrounding the incident at the Chabot residence. Owens himself\\ntestified that he left his house multiple times that night and\\nearly morning. Still more, video surveillance footage placed him\\noutside of his house and at Dunkin' Donuts not long after the time\\nof the incident. Unsurprisingly, in its closing statement the\\nGovernment did not once meaningfully refer to the temperature of\\nOwens's vehicle.\\n\\n Thus, viewed in context, the evidence that Owens's vehicle felt\\nwarm when Officer Dyer touched it was simply unessential to both\\nthe Government's case and the jury's guilty verdicts. See United\\nStates v. Hasting, 461 U.S. 499, 506 (1983) (\\\"Supervisory power to\\nreverse a conviction is not needed as a remedy when the error to\\nwhich it is addressed is harmless since by definition, the\\nconviction would have been obtained notwithstanding the asserted\\nerror.\\\").\\n9 Two state courts, New Hampshire's Salem Circuit Court and\\nMaine's Biddeford District Court, and the United States District\\nCourt for the District of Maine issued the search warrants Owens\\nchallenges on appeal.\\n10 In his brief, Owens also posits that the district court erred\\nbecause on their face the search warrant affidavits did not support\\n\\n -20-\\n\\ffour affidavits contain certain misstatements, omissions, and\\n\\ninconsistencies that affected the issuing judges' probable cause\\n\\ndeterminations. Owens challenges the fifth warrant to the extent\\n\\nits supporting affidavit relied on: (1) evidence seized pursuant\\n\\nto one of the four prior \\\"faulty warrants,\\\" or (2) the match\\n\\nbetween DNA collected from the crime scene and the DNA obtained\\n\\nfrom the buccal swab taken during the police interview, which Owens\\n\\navers was obtained \\\"due to [his] uninformed and/or involuntary\\n\\nconsent.\\\" On these grounds, Owens contends that we should\\n\\ninvalidate the warrants or, in the alternative, remand to the\\n\\ndistrict court for a hearing to \\\"fully determine the depth and\\n\\nbreadth\\\" of the purported inaccuracies. We disagree.\\n\\n Affidavits supporting search warrants are presumptively\\n\\nvalid. United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018);\\n\\nUnited States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). A\\n\\ndefendant may \\\"rebut this presumption and challenge the veracity\\\"\\n\\nof a warrant affidavit at a pretrial hearing commonly known as a\\n\\nFranks hearing. Barbosa, 896 Fd.3d at 67 (quotation and citations\\n\\nomitted); see also Franks v. Delaware, 438 U.S. 154, 171 (1978).\\n\\n\\n\\n\\na finding of probable cause and did not establish a nexus between\\nthe locations to be searched and the items sought. Owens, however,\\ndoes not support this argument with anything more than conclusory\\nstatements. Accordingly, we deem it waived on appeal. Zannino,\\n895 F.2d at 17 (citations omitted).\\n\\n\\n -21-\\n\\fTo be entitled to a Franks hearing, however, a defendant must first\\n\\nmake two \\\"substantial preliminary showings: (1) that a false\\n\\nstatement or omission in the affidavit was made knowingly and\\n\\nintentionally or with reckless disregard for the truth; and (2) the\\n\\nfalsehood or omission was necessary to the finding of probable\\n\\ncause.\\\" United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)\\n\\n(citation and internal quotation marks omitted).11 A defendant's\\n\\n\\\"failure to make a showing on either of these two elements dooms\\n\\n[his] challenge.\\\" McLellan, 792 F.3d at 208.\\n\\n In its order denying Owens's motion to suppress the\\n\\nevidence obtained pursuant to the search warrants, the district\\n\\ncourt made a detailed assessment of Owens's claims as to each\\n\\nmisstatement and omission he identified in the affidavits. Order\\n\\non Def.'s Mots. to Suppress and Dismiss, United States v. Owens,\\n\\nNo. 2:15-CR-55-NT, 2015 WL 6445320, at *12-18 (D. Me. Oct. 23,\\n\\n2015). In doing so, the district court concluded that Owens did\\n\\nnot make a showing of the two required elements -- intentionality\\n\\nand materiality -- for any single misstatement or omission\\n\\ncontained in the affidavits. Id. Specifically, it found that the\\n\\nmisstatements and omissions were either the result of negligence\\n\\n\\n\\n11 These showings are referred to as the \\\"intentionality\\\" and\\n\\\"materiality\\\" prongs of the Franks test. See, e.g., United States\\nv. Lull, 824 F.3d 109, 113-14 (4th Cir. 2016).\\n\\n\\n -22-\\n\\for innocent mistakes, or had no bearing on the probable cause\\n\\ndeterminations.12 Id. As to Owens's contention regarding his lack\\n\\nof consent to the buccal swab during the police interview, the\\n\\ndistrict court reviewed video recordings of the interview and\\n\\nconcluded that Owens's consent \\\"was voluntarily given, and not the\\n\\nresult of duress or coercion, express or implied.\\\" Id. at *3 n.2\\n\\n(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)).\\n\\n After a careful analysis of the record, we agree with\\n\\nand adopt the district court's factual findings and legal\\n\\nconclusions regarding Owens's failure to make the intentionality\\n\\nand materiality showings that would entitle him to a Franks\\n\\nhearing, and Owens's consent to the buccal swab during the police\\n\\ninterview. Accordingly, we find no error in the district court's\\n\\ndenial of Owens's motions to suppress the evidence seized pursuant\\n\\nto the search warrants. See United States v. Arias, 848 F.3d 504,\\n\\n511 (1st Cir. 2017) (\\\"In considering a district court's decision\\n\\nto deny a Franks hearing, we review factual determinations for\\n\\n\\n12 We note that, in support of his motion to suppress, Owens even\\nlabelled as \\\"recklessly false\\\" statements that were actually true.\\nFor example, Owens argued that one of the affidavits falsely\\nidentified him as a suspect, but Owens was in fact a suspect at\\nthe time the affidavit was submitted. The same goes for some of\\nthe omissions on which Owens's motion rested. For example, he\\nclaimed that one of the affidavits omitted that the Chabot\\nresidence's intruder first attempted to gain entry into the room\\nwhere Carol was hiding, when the affidavit specifically mentioned\\nthis fact.\\n\\n\\n -23-\\n\\fclear error and the probable cause determination de novo.\\\"\\n\\n(citation omitted)); see also United States v. Tzannos, 460 F.3d\\n\\n128, 136 (1st Cir. 2006) (recognizing that \\\"a defendant must meet\\n\\na high bar even to get a Franks hearing\\\").\\n\\nC. Sufficiency of Evidence for Owens's Convictions\\n\\n In reviewing sufficiency challenges, \\\"[w]e view 'all\\n\\n[the] evidence, credibility determinations, and reasonable\\n\\ninferences therefrom in the light most favorable to the verdict[]\\n\\nin order to determine whether the jury rationally could have found\\n\\nthat the government established each element of the charged offense\\n\\nbeyond a reasonable doubt.'\\\" United States v. Valdés-Ayala, 900\\n\\nF.3d 20, 30 (1st Cir. 2018) (quoting United States v. Serunjogi,\\n\\n767 F.3d 132, 139 (1st Cir. 2014)). Our analysis \\\"is weighted\\n\\ntoward preservation of the jury verdict.\\\" Rodríguez-Torres v.\\n\\nCaribbean Forms Mfr., Inc., 399 F.3d 52, 57 (1st Cir. 2005). \\\"[A]s\\n\\nlong as the guilty verdict finds support in a 'plausible rendition\\n\\nof the record,' it must stand.\\\" United States v. Moran, 312 F.3d\\n\\n480, 487 (1st Cir. 2002) (citation omitted). Importantly, as we\\n\\nconduct our review, we place \\\"no premium . . . upon direct as\\n\\nopposed to circumstantial evidence\\\" since \\\"both types of proof can\\n\\nadequately ground a conviction.\\\" United States v. Valerio, 48\\n\\nF.3d 58, 63 (1st Cir. 1995) (quoting United States v. Ortiz, 966\\n\\nF.2d 707, 711 (1st Cir. 1992)).\\n\\n\\n -24-\\n\\f For Owens's conviction on Count One, interstate domestic\\n\\nviolence, the jury must have found that the Government proved\\n\\nbeyond reasonable doubt that: (1) Owens was married to Rachel; (2)\\n\\nOwens traveled in interstate commerce -- in this case, from New\\n\\nHampshire to Maine -- with the intent to \\\"kill [or] injure\\\" Rachel;\\n\\n(3) \\\"as a result of such travel,\\\" Owens \\\" commit[ted] or\\n\\nattempt[ed] to commit a crime of violence\\\" against Rachel; and\\n\\n(4) a \\\"life threatening bodily injury\\\" resulted from Owens's\\n\\nactions.13 18 U.S.C. § 2261(a)(1) & (b)(2). Meanwhile, for Owens's\\n\\nconviction on Count Two, discharge of a firearm during and in\\n\\nrelation to a crime of violence, the Government had to prove that\\n\\n\\\"during and in relation to [a] crime of violence,\\\" namely the crime\\n\\nof interstate domestic violence charged in Count One, Owens\\n\\nknowingly \\\"use[d] . . . a firearm\\\" by discharging it \\\"during and\\n\\nin relation\\\" to the commission of that crime. 18 U.S.C.\\n\\n§ 924(c)(1)(A)(iii).\\n\\n Owens's sufficiency challenge rests on the Government's\\n\\nalleged failure to prove that Owens was the person who intruded\\n\\n\\n\\n13 The Government sought to prove the fourth prong, that Rachel\\nsustained a \\\"life threatening bodily injury,\\\" for purposes of 18\\nU.S.C. § 2261(b)(2), which provides a penalty of up to 20 years'\\nimprisonment if defendant's commission of interstate domestic\\nviolence under § 2261(a) results in \\\"permanent disfigurement or\\nlife threatening bodily injury to the victim.\\\" 18 U.S.C.\\n§ 2261(b)(2).\\n\\n\\n -25-\\n\\finto the Chabot residence, and the purported impossibility of Owens\\n\\ntravelling from Londonderry to Saco, invading the Chabot\\n\\nresidence, and returning to Londonderry within a time frame of\\n\\napproximately four hours and twenty-four minutes. Owens claims\\n\\nthat neither Carol, Steve, nor Rachel identified him as the\\n\\nintruder. Furthermore, Owens stresses that Rachel identified the\\n\\nintruder as a \\\"dark skinned person with dread locks [sic],\\\" which\\n\\ndoes not match his physical description since he is a \\\"white male\\n\\nwho does not have dread locks [sic].\\\" As to the second ground of\\n\\nhis sufficiency challenge, Owens claims that, because he was\\n\\npresent in Londonderry at 12:11 a.m. and 4:35 a.m., as reflected\\n\\nby two store's video surveillance footage, it was impossible for\\n\\nhim to have been present in Saco when the shooting took place,\\n\\n2:45-2:47 a.m. He focuses on the amount of time it would have\\n\\ntaken him to make the trip back from Saco to Londonderry. In\\n\\nparticular, Owens contends that a trip from the Chabot residence\\n\\nin Saco to Londonderry would take him at least two hours and\\n\\nfifteen minutes, while under the Government's theory it took him\\n\\napproximately one hour and forty-eight minutes. We are not\\n\\npersuaded.\\n\\n As the Government avers, the jury was presented a vast\\n\\namount of direct and circumstantial evidence identifying Owens as\\n\\nthe Chabot residence intruder. Specifically, the Government\\n\\n\\n -26-\\n\\fidentifies the following incriminating evidence presented at\\n\\ntrial: (1) laboratory testing confirming that Owens's DNA was found\\n\\nin an area where the two window panes had been affixed to each\\n\\nother -- an area that would not have been exposed until the\\n\\nintruder shattered the outer pane -- as well as in the door handle\\n\\nand deadlock used to access the Chabot residence; (2) boot prints\\n\\nand a cast of boot impression taken from the scene that matched\\n\\nthe boots found in Owens's car a few hours after the incident;\\n\\n(3) testimony regarding bloodstains found on the armrest of the\\n\\ndriver's door and inside the driver's door of Owens's vehicle a\\n\\nfew hours after the incident; (4) Steve's testimony identifying\\n\\nthe intruder as a person with a similar physique to Owens's and\\n\\nwho, like Owens, wore glasses; (5) expert testimony revealing\\n\\nOwens's efforts to manipulate his laptop's clock to make it seem\\n\\nthat he was at his Londonderry home at the time of the incident;\\n\\nand, relatedly, (6) testimony regarding Owens's attempt to\\n\\nmanufacture an alibi by having his former boss lie to law\\n\\nenforcement about a Skype call that never took place. This\\n\\nevidence, in conjunction with the rest of the evidence presented\\n\\nat trial, allows a reasonable jury to conclude beyond reasonable\\n\\ndoubt that it was Owens who broke into the Chabot's residence.14\\n\\n\\n14 Although not specifically listed by the Government as evidence\\nthat led the jury to identify Owens as the Chabot residence's\\nintruder, we note that the .9mm ammunition stamped \\\"WCC 1987\\\" and\\n\\n -27-\\n\\f Owens's reference to Rachel's alleged identification of\\n\\nthe intruder as a \\\"dark skinned person with dread locks [sic],\\\"\\n\\nwhich we read as an attempt to highlight evidence of exculpatory\\n\\nnature, does not help him. We are not to \\\"weigh the evidence or\\n\\nmake credibility judgments\\\" in our sufficiency review, as \\\"these\\n\\ntasks are solely within the jury's province.\\\" Serunjogi, 767 F.3d\\n\\nat 139 (quoting United States v. Hernández, 218 F.3d 58, 64 (1st\\n\\nCir. 2000)).15\\n\\n Finally, as to the alleged impossibility of Owens making\\n\\nthe trip back from Saco to Londonderry in less than two hours and\\n\\nfifteen minutes, the jury was presented with ample testimonial\\n\\nevidence, including Owens's own trial testimony, reflecting that\\n\\nthis ninety-mile trip usually took about one hour and thirty\\n\\nminutes. Moreover, Carol testified that Owens frequently bragged\\n\\nabout making the trip in just over an hour. Accordingly, the jury\\n\\nwas presented with sufficient evidence to conclude that Owens's\\n\\nLondonderry-Saco roundtrip would have lasted three hours or less,\\n\\n\\n\\n\\ndark clothes seized from Owens's house also strongly support the\\njury's guilty verdicts. The .9mm ammunition casings matched the\\nshell casings recovered from the Chabot residence, while the dark\\nclothes, some of which was found in Owens's washing machine,\\nmatched that worn by the residence's intruder.\\n15 In any event, we note that the record is devoid of any testimony\\ndescribing the intruder as such. What Rachel did testify was that\\nthe intruder was wearing a \\\"Jamaican hat\\\" or \\\"floppy [black] hat.\\\"\\n\\n\\n -28-\\n\\fwhich fits easily within the four hour and twenty-four-minute\\n\\nwindow separating the two instances in which he was recorded at\\n\\nthe Londonderry stores.\\n\\n Based on the foregoing analysis, we conclude that there\\n\\nwas sufficient evidence to support Owens's convictions.\\n\\nD. Reasonableness of Owens's Life Sentence\\n\\n Owens challenges the procedural and substantive\\n\\nreasonableness of his sentence. He claims the district court erred\\n\\nprocedurally by not considering some factors outlined in 18 U.S.C.\\n\\n§ 3553, and that it substantively erred in imposing a life\\n\\nsentence.\\n\\n Our review is bifurcated. First, we ensure the district\\n\\ncourt did not commit any procedural errors, such as \\\"failing to\\n\\nconsider the section 3553(a) factors, selecting a sentence based\\n\\non clearly erroneous facts, or failing to adequately explain the\\n\\nchosen sentence.\\\" United States v. Gierbolini-Rivera, 900 F.3d 7,\\n\\n12 (1st Cir. 2018) (citation omitted). If a sentence is\\n\\nprocedurally sound, we proceed to the second step of our inquiry:\\n\\ndetermining whether the sentence is substantively reasonable. Id.\\n\\nIn reviewing the substantive reasonableness of a sentence, we\\n\\n\\\"focus[] on the duration of the sentence in light of the totality\\n\\nof the circumstances.\\\" Id. (citing United States v. Del Valle-\\n\\nRodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). Although a district\\n\\n\\n -29-\\n\\fcourt is \\\"under a mandate to consider a myriad of relevant\\n\\nfactors,\\\" the weight it decides to afford to those factors is\\n\\n\\\"largely within the court's informed discretion.\\\" United States\\n\\nv. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also 18 U.S.C.\\n\\n§ 3553(a). We will ultimately find a sentence substantively\\n\\nreasonable \\\"so long as the sentencing court has provided a\\n\\n'plausible sentencing rationale' and reached a 'defensible\\n\\nresult.'\\\" Gierbolini-Rivera, 900 F.3d at 12 (citing United States\\n\\nv. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).16\\n\\n Because Owens failed to preserve his objection below, we\\n\\nreview his procedural challenge based on the district court's\\n\\nalleged failure to consider § 3553(a) factors for plain error.\\n\\nId. at 13. Hence, for Owens's procedural challenge to succeed, he\\n\\nmust show: \\\"(1) that an error occurred, (2) which was clear or\\n\\nobvious and which not only (3) affected the defendant's substantial\\n\\nrights, but also (4) seriously impaired the fairness, integrity,\\n\\nor public reputation of judicial proceedings.\\\" Id. at 12 (citations\\n\\n\\n\\n16 In considering a challenge to the substantive reasonableness\\nof a sentence preserved below, this court applies the abuse of\\ndiscretion standard. Gierbolini-Rivera, 900 F.3d at 14. Owens,\\nhowever, did not object to his life sentence below. In such cases,\\nit remains an open question in this Circuit whether the abuse of\\ndiscretion standard or the plain error standard applies. Id. at\\n15 (citation omitted). Notwithstanding, we need not decide this\\nissue in the instant case given that Owens's claim fails under\\nboth.\\n\\n\\n -30-\\n\\fomitted).\\n\\n Owens's procedural challenge to his sentence fails on\\n\\nthe first prong of the plain error test. The record reveals that\\n\\nthe district court took into consideration all the mitigating\\n\\nfactors Owens claims it did not, namely, his military accolades,\\n\\nlack of criminal history, productive work history, and age. See\\n\\n18 U.S.C. § 3553(a) (stating that a sentencing court \\\"shall\\n\\nconsider . . . the history and characteristics of the defendant\\\").\\n\\nThe district court, however, weighed these mitigating factors\\n\\nagainst the following aggravating factors: the severity of the\\n\\ncrime; Owens's premeditation, given that he planned to kill Rachel\\n\\nboth to avoid the responsibility of caring for her as she suffered\\n\\nfrom dementia and to be able to continue his affair, while avoiding\\n\\nthe scorn that divorcing Rachel would have caused; the attempted\\n\\nmurder of a witness and friend, Steve, to prevent him from\\n\\nidentifying Owens as the intruder; Owens's deceitful character, as\\n\\nrevealed through his participation at trial and during allocution;\\n\\nand, finally, the need to protect the public, among others. See\\n\\nid. This balancing of sentencing factors \\\"is precisely the\\n\\nfunction that a sentencing court is expected to perform,\\\" United\\n\\nStates v. Ledée, 772 F.3d 21, 41 (1st Cir. 2014) (citation\\n\\nomitted), and we find that the district judge did not procedurally\\n\\nerr, plainly or otherwise, while carrying it out in the present\\n\\n\\n -31-\\n\\fcase.\\n\\n Further, the district court thoroughly explained the\\n\\nrationale behind Owens's life sentence. Apart from the factors\\n\\nlisted above, it emphasized Owens's \\\"cold-blooded behavior . . .\\n\\n[and] obvious lack of conscience,\\\" as well as the \\\"long lasting\\n\\nemotional damage to both Chabots\\\" and the severity of the injuries\\n\\ninflicted on Rachel. Considering the totality of the\\n\\ncircumstances of Owens's crime, we find that the district court's\\n\\nlife sentence is a defensible result. See Gierbolini-Rivera, 900\\n\\nF.3d at 12. Accordingly, we conclude that the district court did\\n\\nnot substantively err.\\n\\nE. Motion to Dismiss the Indictment on Double Jeopardy Grounds\\n\\n Finally, Owens claims that the district court erred in\\n\\ndenying his motion to dismiss the indictment on double jeopardy\\n\\ngrounds. The Double Jeopardy Clause \\\"provides that no person may\\n\\nbe tried more than once 'for the same offence.'\\\" Currier v.\\n\\nVirginia, 138 S. Ct. 2144, 2149 (2018). It protects \\\"an individual\\n\\nagainst (1) a second prosecution for the same offense, following\\n\\nan acquittal; (2) a second prosecution for the same offense,\\n\\nfollowing a conviction; and (3) multiple punishments for the same\\n\\noffense.\\\" United States v. Stoller, 78 F.3d 710, 714 (1st Cir.\\n\\n1996) (citation omitted). Owens, however, does not establish that\\n\\nhis double jeopardy challenge is premised on a prior criminal\\n\\n\\n -32-\\n\\fconviction, acquittal, or punishment for the same offenses for\\n\\nwhich he was convicted and sentenced in this case.17 We thus find\\n\\nno error in the district court's denial of his motion to dismiss\\n\\nthe indictment on double jeopardy grounds.\\n\\n III. CONCLUSION\\n\\n For the reasons explained above, each of Owens's claims\\n\\nis unavailing. We therefore affirm the district court's denial of\\n\\nhis pretrial motions, his convictions, and sentence.\\n\\n Affirmed.\\n\\n\\n\\n\\n17He does not even allege that he was subject to any prior criminal\\nprosecution for offenses resulting from the events that unfolded\\nat the Chabot residence.\\n\\n\\n -33-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":482,"cells":{"id":{"kind":"number","value":4594154,"string":"4,594,154"},"name":{"kind":"string","value":"GGNSC ADMINISTRATIVE SERVICES, LLC; Golden Gate National Senior Care, LLC ; GGNSC Holdings, LLC; GGNSC Chestnut Hill, LLC, D/B/A Golden Living Center-Heathwood, Plaintiffs, Appellees, v. Jackalyn M. SCHRADER, as the Personal Representative of the Estate of Emma J. Schrader, Defendant, Appellant."},"name_abbreviation":{"kind":"string","value":"GGNSC Admin. Servs., LLC v. Schrader"},"decision_date":{"kind":"string","value":"2019-02-26"},"docket_number":{"kind":"string","value":"18-1779P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Howard, Lynch, Lipez\", \"parties\": \"\", \"opinions\": [{\"author\": \"LYNCH, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1779\\n\\n GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR\\n CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a\\n Golden Living Center - Heathwood,\\n\\n Plaintiffs, Appellees,\\n\\n v.\\n\\n JACKALYN M. SCHRADER, as the personal representative of the\\n estate of Emma J. Schrader,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Douglas P. Woodlock, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Lynch and Lipez, Circuit Judges.\\n\\n\\n John Vail, with whom John Vail Law, PLLC, Daniel T. Landry,\\nDavid J. Hoey, and Law Offices of David J. Hoey, P.C. were on\\nbrief, for appellant.\\n William Alvarado Rivera, Meryl D. Grenadier, and Kelly R.\\nBagby on brief for AARP and AARP Foundation, amici curiae.\\n Robert E. Curtis, Jr. on brief for Massachusetts Advocates\\nfor Nursing Home Reform, amicus curiae.\\n Joseph M. Desmond, with whom Justin L. Amos and Morrison\\nMahoney LLP were on brief, for appellees.\\n\\fFebruary 26, 2019\\n\\f LYNCH, Circuit Judge. This case is about arbitration\\n\\nagreements, nursing homes, and wrongful death claims under\\n\\nMassachusetts law. A set of organizations (collectively, GGNSC)\\n\\nthat oversees the Golden Living Center Heathwood (Heathwood) in\\n\\nChestnut Hill sued in federal court to compel arbitration of an\\n\\nunderlying state wrongful death action brought by the personal\\n\\nrepresentative of a deceased former Heathwood resident. The\\n\\nfederal court compelled arbitration and declined to issue a stay\\n\\nof the state wrongful death action. GGNSC Chestnut Hill LLC v.\\n\\nSchrader, No. CV 16-10525-DPW, 2018 WL 1582555, at *9-10 (D. Mass.\\n\\nMar. 31, 2018). Whether arbitration was required turns on how\\n\\nstate law characterizes wrongful death actions.\\n\\n The personal representative appeals. She argues that as\\n\\nthe plaintiff in the wrongful death suit, under state law, she is\\n\\nnot bound by the decedent's agreement to arbitrate with GGNSC\\n\\nbecause her wrongful death right of recovery is independent of the\\n\\ndecedent's wrongful death claim. GGNSC argues, to the contrary,\\n\\nthat Massachusetts beneficiaries' wrongful death claims are\\n\\nderivative of the decedent's wrongful death claim, and so the\\n\\narbitration agreement is binding. Because that dispute turns on\\n\\nthe characterization of wrongful death actions by the\\n\\nCommonwealth, we certify questions to the Massachusetts Supreme\\n\\nJudicial Court (SJC) under its Rule 1:03. See Bos. Gas Co. v.\\n\\nCentury Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008).\\n\\n\\n - 3 -\\n\\f I.\\n\\n The parties do not dispute the relevant facts, which we\\n\\ntake largely from the district court opinion. Emma Schrader was\\n\\nbrought by ambulance to Heathwood in February 2013. After Emma's\\n\\nadmission and treatment, Jackalyn M. Schrader (Schrader), Emma's\\n\\ndaughter and appellant here, signed several documents for her\\n\\nmother, including a standard (undated) \\\"Alternative Dispute\\n\\nResolution Agreement\\\" (Agreement). Schrader had authority to sign\\n\\nthese documents on her mother's behalf -- on September 11, 2011,\\n\\nEmma had executed a document granting Schrader her power of\\n\\nattorney.\\n\\n The Agreement states in bold letters that a signature on\\n\\nthe Agreement is not a condition of admission to or continued\\n\\nresidence in the facility. It also says that the resident may\\n\\nrevoke \\\"the Agreement by sending written notice to [Heathwood]\\n\\nwithin thirty (30) days of signing it.\\\" The Agreement form has\\n\\ntwo signature lines: one to accept and one to decline. Schrader\\n\\nsigned the accept line.\\n\\n The Agreement provides that any dispute covered by the\\n\\nAgreement \\\"shall be resolved exclusively by an ADR process that\\n\\nshall include mediation and, where mediation is not successful,\\n\\nbinding arbitration.\\\" The Agreement applies to \\\"the Resident,\\\" a\\n\\nterm that the Agreement defines to include \\\"all persons whose claim\\n\\nis or may be derived through or on behalf of the Resident,\\n\\n\\n - 4 -\\n\\fincluding any next of kin, guardian, executor, administrator,\\n\\nlegal representative, or heir of the Resident, and any person who\\n\\nhas executed this Agreement on the Resident's behalf.\\\"1\\n\\n Emma died on December 3, 2013. Schrader brought a\\n\\nwrongful death action against GGNSC in Massachusetts state court\\n\\non February 4, 2016.2 The state complaint alleges that Schrader\\n\\nbrought the action as the personal representative of Emma's estate\\n\\n\\\"on behalf of the heirs of the decedent.\\\" And it alleges that\\n\\nEmma's injuries were \\\"injuries for which she would have been\\n\\nentitled to bring an action had she survived, and the right to\\n\\nbring such action survives her.\\\" The injuries alleged were a\\n\\n\\\"preventable sacral decubitus\\\" and resulting pain and suffering,\\n\\nwhich eventually required surgery and transfer to a special care\\n\\nfacility, and from which Emma never recovered.\\n\\n GGNSC then brought this federal court action on March\\n\\n15, 2016, under the Federal Arbitration Act to compel Schrader to\\n\\narbitrate the dispute. The district court granted the motion to\\n\\ncompel. Schrader, 2018 WL 1582555, at *10. The district court\\n\\n\\n\\n 1 GGNSC has never argued that Jackalyn's wrongful death\\nclaims are subject to the Agreement's mandatory arbitration\\nprovision because she is the \\\"person who has executed th[e]\\nAgreement on the Resident's behalf.\\\"\\n 2 Jackalyn says she also brought a negligence claim. The\\ndistrict court treated this case as only concerning wrongful death,\\nfinding the two claims to be equivalent for these purposes. The\\nparties have done the same on appeal, so we do too.\\n\\n\\n - 5 -\\n\\ffirst found that there was a valid contractual agreement to\\n\\narbitrate, id. at *4, and that the agreement was neither\\n\\nprocedurally nor substantively unconscionable under Massachusetts\\n\\nlaw, id. at *5. Schrader has not appealed those conclusions, so\\n\\nwe take them as established fact.\\n\\n The district court next considered whether Schrader's\\n\\nwrongful death claims, which she brought in her capacity as\\n\\npersonal representative of her mother's estate, were derivative of\\n\\nclaims that Emma could have brought such that the claims were\\n\\nsubject to arbitration. Id. at *6. Schrader contended that her\\n\\nwrongful death claims were not subject to the Agreement because a\\n\\nwrongful death beneficiary's claims are independent of any claims\\n\\nfalling within the scope of the Agreement. Id.\\n\\n Both parties argued that the issue turned on\\n\\nMassachusetts state law. As no state opinion clearly decided the\\n\\nissue, the district court made an informed prediction that the SJC\\n\\nwould hold that \\\"a wrongful death claim is a derivative claim as\\n\\nto which the decedent's representatives and beneficiaries would be\\n\\nbound by [the decedent's] agreement to arbitrate.\\\" Id. at *8.\\n\\nThe district court highlighted several reasons for its conclusion:\\n\\nFirst, claimants \\\"can only recover if the decedent died under such\\n\\ncircumstances that the deceased could have recovered damages for\\n\\npersonal injuries if his death had not resulted.\\\" Id. at *7\\n\\n(internal quotation marks omitted). Second, \\\"the elements in a\\n\\n\\n - 6 -\\n\\fwrongful death claim mirror the elements necessary to prove\\n\\nnegligence had the decedent survived,\\\" so, \\\"effectively,\\\" \\\"there\\n\\nwould be no cause of action unless the decedent could have sued.\\\"\\n\\nId. at *7 n.3. And third, under Massachusetts law, one can only\\n\\nbring a \\\"wrongful death claim as the executor or administrator of\\n\\nthe decedent's estate.\\\" Id. at *7. The district court added that,\\n\\nthough the issue was one that might yield a different outcome from\\n\\nstate to state, \\\"the weight of persuasive authority treats wrongful\\n\\ndeath claims as derivative.\\\" Id. at *8.\\n\\n After this, Schrader, for the first time, asked the\\n\\ndistrict court for certification to the SJC. GGNSC Chestnut Hill\\n\\nLLC v. Schrader, No. CV 16-10525-DPW, 2018 WL 3405339, at *1 (D.\\n\\nMass. July 12, 2018). The district court declined to certify any\\n\\nquestion at the \\\"thirteenth-hour.\\\" Id.\\n\\n II.\\n\\n This court may, on its own motion, certify questions to\\n\\nthe SJC when those questions may be determinative of the pending\\n\\ncause of action and when there is no controlling precedent that\\n\\nanswers them. Hundley v. Marsh (In re Hundley), 603 F.3d 95, 98\\n\\n(1st Cir. 2010); Mass. S.J.C. R. 1:03. This case meets both\\n\\nconditions. Because the Agreement's enforceability as to\\n\\nSchrader's claims turns on important issues of state law, including\\n\\nstatutory interpretation, common law, and matters of policy, we\\n\\nthink it best to certify questions to the SJC.\\n\\n\\n - 7 -\\n\\f We begin with background. \\\"[A]rbitration is a matter of\\n\\ncontract.\\\" Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67\\n\\n(2010). State contract law controls \\\"who is bound by [arbitration\\n\\nagreements].\\\" Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630\\n\\n(2009). We look to Massachusetts law to determine whether\\n\\nSchrader, in bringing the wrongful death action, is bound by her\\n\\nmother's Agreement to arbitrate claims against GGNSC.3 Resolution\\n\\nof this state law issue will resolve this federal case.\\n\\n The parties argue that wrongful death claims are either\\n\\n\\\"independent\\\" (Schrader) or \\\"derivative\\\" (GGNSC) of the claim\\n\\nconcerning the decedent's death. Schrader argues that\\n\\nMassachusetts segregates the rights of claimants and gives five\\n\\nindependent bases on which a claimant may bring a wrongful death\\n\\nclaim. See Mass. Gen. Laws ch. 229, § 2.\\n\\n GGNSC responds that, in a case, like this one, that is\\n\\nbased on Section 2(1) or 2(2) of the wrongful death statute, the\\n\\nplaintiff must prove that the defendant negligently caused the\\n\\ndecedent's death. GGNSC argues that because proving wrongful death\\n\\n\\n 3 We reject Schrader's general argument that she, a non-\\nsignatory to the Agreement (only having signed it using her\\nmother's power of attorney), cannot be compelled to arbitrate her\\nwrongful death beneficiary claims. Schrader waived this argument\\nby not raising it before the district court. See Vineberg v.\\nBissonnette, 548 F.3d 50, 57 (1st Cir. 2008). Even absent waiver,\\nthe argument lacks merit: There are exceptions to the \\\"general\\nproposition\\\" that \\\"a contract cannot bind a non-party.\\\" Grand\\nWireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 9 (1st Cir.\\n2014); see id. at 9-10.\\n\\n\\n - 8 -\\n\\fis contingent on proving underlying negligence against the\\n\\ndecedent, the beneficiaries' right of recovery must be viewed as\\n\\nderived from the decedent's wrongful death claim. GGNSC highlights\\n\\nthat Massachusetts requires that all wrongful death actions be\\n\\nbrought by a personal representative of the decedent. And GGNSC\\n\\nadds that its view is consistent with how the SJC has treated\\n\\nanalogous claims, and that good policy reasons support its reading.\\n\\n Schrader responds that, although only a personal\\n\\nrepresentative may bring the suit, \\\"it is the [beneficiary's] cause\\n\\nof action.\\\" Gaudette v. Webb, 284 N.E.2d 222, 230 (Mass. 1972).\\n\\nSchrader adds that, under the Massachusetts wrongful death\\n\\nstatute, beneficiaries may receive different damages from those\\n\\nthat would have been available to a decedent or her estate.\\n\\n Schrader also argues that Massachusetts law is not\\n\\nunsettled and that it has resolved this question. She says the\\n\\nSJC has consistently viewed wrongful death claims as independent.\\n\\nGGNSC responds that, although Massachusetts may once have viewed\\n\\nits wrongful death action as independent, see, e.g., McCarthy v.\\n\\nWood Lumber Co., 107 N.E. 439, 440 (1914), later amendments to the\\n\\nwrongful death statute have invalidated that classification. In\\n\\n1958, the legislature limited recovery under the statute to \\\"such\\n\\ncircumstances that the deceased could have recovered damages for\\n\\npersonal injury if his death had not resulted.\\\" 1958 Mass. Acts\\n\\n122, ch. 238 § 1. And the SJC has since held that the\\n\\n\\n - 9 -\\n\\fCommonwealth's \\\"wrongful death statutes w[ould] no longer be\\n\\nregarded as 'creating the right' to recovery for wrongful death\\\" --\\n\\nthe law had \\\"evolved to the point where it may now be held that\\n\\nthe right to recovery for wrongful death is of common law origin.\\\"\\n\\nGaudette, 284 N.E.2d at 229.\\n\\n We hold that Massachusetts law does not clearly decide\\n\\nthe independent/derivative or other relevant questions about the\\n\\nstatus of wrongful death actions in relation to the decedent. The\\n\\nparties have provided us with no citation to a dispositive case.\\n\\nOur own research reveals that the SJC has most recently reserved\\n\\nthe question this case presents. See Johnson v. Kindred\\n\\nHealthcare, Inc., 2 N.E.3d 849, 856 n.14 (Mass. 2014) (declining\\n\\nto address whether \\\"a decedent's agreement to arbitrate future\\n\\ndisputes\\\" binds \\\"the statutory beneficiaries of a wrongful death\\n\\nclaim\\\").\\n\\n Even absent controlling precedent, certification may be\\n\\ninappropriate when \\\"the course the state court would take is\\n\\nreasonably clear.\\\" Ropes & Gray LLP v. Jalbert (In re Engage,\\n\\nInc.), 544 F.3d 50, 53 (1st Cir. 2008) (internal quotation marks\\n\\nand alterations omitted). This is not such a case.\\n\\n It may be that the SJC will conclude that wrongful death\\n\\nclaims have both independent and derivative aspects. As noted, in\\n\\nMassachusetts, claims under the first clause of the Massachusetts\\n\\nwrongful death statute require a personal representative to show\\n\\n\\n - 10 -\\n\\fnegligence against the decedent resulting in death. See Mass.\\n\\nGen. Laws ch. 229, § 2. But as the SJC has noted, \\\"[i]n a very\\n\\nreal sense,\\\" a wrongful death claim \\\"is the [beneficiary's] cause\\n\\nof action.\\\" Gaudette, 284 N.E.2d at 230.\\n\\n The issue here has yielded \\\"profound conflict\\\" across\\n\\nthe nation.4 Restatement (Second) of Judgments § 46 cmt. b. GGNSC\\n\\nasserts that twenty-seven states find wrongful death claims to be\\n\\nderivative, while fourteen states find them to be independent.\\n\\nGGNSC adds a wrinkle. It says that the answer to the\\n\\nindependent/derivative question may possibly require addressing\\n\\nanother state-law issue. It argues that at least one state,\\n\\ndespite holding that a wrongful death claim is independent, has\\n\\nheld that, depending on the facts, such a claim may still be\\n\\nsubject to the decedent's arbitration agreement. See Allen v.\\n\\nPacheco, 71 P.3d 375, 379 (Colo. 2003) (en banc).\\n\\n There are also substantial policy considerations at\\n\\nstake. The SJC has observed that \\\"[l]ike all common-law causes of\\n\\naction, [Massachusetts's] common law of wrongful death evolves to\\n\\nmeet changes in the evolving life of the Commonwealth.\\\" Matsuyama\\n\\nv. Birnbaum, 890 N.E.2d 819, 837 (Mass. 2008). The American\\n\\n\\n 4 Decisions within the District of Massachusetts under\\nMassachusetts law are also split. Compare Schrader, 2018 WL\\n1582555, with Angelo v. USA Triathlon, No. CIV.A. 13-12177-LTS,\\n2014 WL 4716195 (D. Mass. Sept. 19, 2014), and Chung v.\\nStudentCity.com, Inc., No. CIV.A. 10-10943-RWZ, 2011 WL 4074297\\n(D. Mass. Sept. 9, 2011).\\n\\n\\n - 11 -\\n\\fAssociation of Retired Persons (AARP) and Massachusetts Advocates\\n\\nfor Nursing Home Reform, amici in favor of reversal, ably highlight\\n\\nnumerous issues that may or may not come under the rubric of\\n\\n\\\"changes in the evolving life of the Commonwealth.\\\"5\\n\\n Because this case presents an unresolved question of\\n\\nMassachusetts law whose answer is unclear, and because resolving\\n\\nthat issue may implicate policy judgments best left to the SJC, we\\n\\nexercise our discretion in favor of certification. See In re\\n\\nEngage, 544 F.3d at 53; see also Steinmetz v. Coyle & Caron, Inc.,\\n\\n862 F.3d 128, 142 (1st Cir. 2017); Showtime Entm't, LLC v. Town of\\n\\nMendon, 769 F.3d 61, 82 (1st Cir. 2014).\\n\\n We certify these questions to the Massachusetts SJC:\\n\\n 1. Is the wrongful death claim of Emma\\n Schrader's statutory heirs derivative or\\n independent of Emma Schrader's own cause\\n of action?\\n 2. If the answer to the first question does\\n not resolve the issue presented to the\\n federal court, is Jackalyn Schrader's\\n wrongful death claim nonetheless subject\\n to Emma Schrader's Agreement that her\\n \\\"next of kin, guardian, executor,\\n administrator, legal representative, or\\n heir\\\" would arbitrate claims against\\n GGNSC?\\n\\n\\n 5 AARP argues that nursing facility residents suffer from\\nhigh rates of abuse and neglect, that federal and state enforcement\\nefforts have inadequately protected those residents, and that\\narbitration fails to address that culture of abuse and neglect.\\nMassachusetts Advocates for Nursing Home Reform add that the\\nCommonwealth has a public policy interest in maintaining\\ntransparency in nursing homes because decisions in litigation are\\npublic and that is not necessarily true of arbitrations.\\n\\n\\n - 12 -\\n\\fWe welcome any additional observations about Massachusetts law\\n\\nthat the SJC may wish to offer.\\n\\n III.\\n\\n We direct the Clerk of this court to forward to the\\n\\nMassachusetts SJC, under this court's official seal, a copy of the\\n\\ncertified questions and our decision here, and a copy of the briefs\\n\\nand appendix filed by the parties and amici curiae, and a copy of\\n\\nthe record filed in the district court, which set forth all facts\\n\\nrelevant to the issues certified. We retain jurisdiction pending\\n\\nthat court's determination.\\n\\n\\n\\n\\n - 13 -\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4371407/\", \"author_raw\": \"LYNCH, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"HOWARD"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"LIPEZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4594154/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: GGNSC ADMINISTRATIVE SERVICES, LLC; Golden Gate National Senior Care, LLC ; GGNSC Holdings, LLC; GGNSC Chestnut Hill, LLC, D/B/A Golden Living Center-Heathwood, Plaintiffs, Appellees, v. Jackalyn M. SCHRADER, as the Personal Representative of the Estate of Emma J. Schrader, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1779\n\n GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR\n CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a\n Golden Living Center - Heathwood,\n\n Plaintiffs, Appellees,\n\n v.\n\n JACKALYN M. SCHRADER, as the personal representative of the\n estate of Emma J. Schrader,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Douglas P. Woodlock, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Lynch and Lipez, Circuit Judges.\n\n\n John Vail, with whom John Vail Law, PLLC, Daniel T. Landry,\nDavid J. Hoey, and Law Offices of David J. Hoey, P.C. were on\nbrief, for appellant.\n William Alvarado Rivera, Meryl D. Grenadier, and Kelly R.\nBagby on brief for AARP and AARP Foundation, amici curiae.\n Robert E. Curtis, Jr. on brief for Massachusetts Advocates\nfor Nursing Home Reform, amicus curiae.\n Joseph M. Desmond, with whom Justin L. Amos and Morrison\nMahoney LLP were on brief, for appellees.\n\fFebruary 26, 2019\n\f LYNCH, Circuit Judge. This case is about arbitration\n\nagreements, nursing homes, and wrongful death claims under\n\nMassachusetts law. A set of organizations (collectively, GGNSC)\n\nthat oversees the Golden Living Center Heathwood (Heathwood) in\n\nChestnut Hill sued in federal court to compel arbitration of an\n\nunderlying state wrongful death action brought by the personal\n\nrepresentative of a deceased former Heathwood resident. The\n\nfederal court compelled arbitration and declined to issue a stay\n\nof the state wrongful death action. GGNSC Chestnut Hill LLC v.\n\nSchrader, No. CV 16-10525-DPW, 2018 WL 1582555, at *9-10 (D. Mass.\n\nMar. 31, 2018). Whether arbitration was required turns on how\n\nstate law characterizes wrongful death actions.\n\n The personal representative appeals. She argues that as\n\nthe plaintiff in the wrongful death suit, under state law, she is\n\nnot bound by the decedent's agreement to arbitrate with GGNSC\n\nbecause her wrongful death right of recovery is independent of the\n\ndecedent's wrongful death claim. GGNSC argues, to the contrary,\n\nthat Massachusetts beneficiaries' wrongful death claims are\n\nderivative of the decedent's wrongful death claim, and so the\n\narbitration agreement is binding. Because that dispute turns on\n\nthe characterization of wrongful death actions by the\n\nCommonwealth, we certify questions to the Massachusetts Supreme\n\nJudicial Court (SJC) under its Rule 1:03. See Bos. Gas Co. v.\n\nCentury Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008).\n\n\n - 3 -\n\f I.\n\n The parties do not dispute the relevant facts, which we\n\ntake largely from the district court opinion. Emma Schrader was\n\nbrought by ambulance to Heathwood in February 2013. After Emma's\n\nadmission and treatment, Jackalyn M. Schrader (Schrader), Emma's\n\ndaughter and appellant here, signed several documents for her\n\nmother, including a standard (undated) \"Alternative Dispute\n\nResolution Agreement\" (Agreement). Schrader had authority to sign\n\nthese documents on her mother's behalf -- on September 11, 2011,\n\nEmma had executed a document granting Schrader her power of\n\nattorney.\n\n The Agreement states in bold letters that a signature on\n\nthe Agreement is not a condition of admission to or continued\n\nresidence in the facility. It also says that the resident may\n\nrevoke \"the Agreement by sending written notice to [Heathwood]\n\nwithin thirty (30) days of signing it.\" The Agreement form has\n\ntwo signature lines: one to accept and one to decline. Schrader\n\nsigned the accept line.\n\n The Agreement provides that any dispute covered by the\n\nAgreement \"shall be resolved exclusively by an ADR process that\n\nshall include mediation and, where mediation is not successful,\n\nbinding arbitration.\" The Agreement applies to \"the Resident,\" a\n\nterm that the Agreement defines to include \"all persons whose claim\n\nis or may be derived through or on behalf of the Resident,\n\n\n - 4 -\n\fincluding any next of kin, guardian, executor, administrator,\n\nlegal representative, or heir of the Resident, and any person who\n\nhas executed this Agreement on the Resident's behalf.\"1\n\n Emma died on December 3, 2013. Schrader brought a\n\nwrongful death action against GGNSC in Massachusetts state court\n\non February 4, 2016.2 The state complaint alleges that Schrader\n\nbrought the action as the personal representative of Emma's estate\n\n\"on behalf of the heirs of the decedent.\" And it alleges that\n\nEmma's injuries were \"injuries for which she would have been\n\nentitled to bring an action had she survived, and the right to\n\nbring such action survives her.\" The injuries alleged were a\n\n\"preventable sacral decubitus\" and resulting pain and suffering,\n\nwhich eventually required surgery and transfer to a special care\n\nfacility, and from which Emma never recovered.\n\n GGNSC then brought this federal court action on March\n\n15, 2016, under the Federal Arbitration Act to compel Schrader to\n\narbitrate the dispute. The district court granted the motion to\n\ncompel. Schrader, 2018 WL 1582555, at *10. The district court\n\n\n\n 1 GGNSC has never argued that Jackalyn's wrongful death\nclaims are subject to the Agreement's mandatory arbitration\nprovision because she is the \"person who has executed th[e]\nAgreement on the Resident's behalf.\"\n 2 Jackalyn says she also brought a negligence claim. The\ndistrict court treated this case as only concerning wrongful death,\nfinding the two claims to be equivalent for these purposes. The\nparties have done the same on appeal, so we do too.\n\n\n - 5 -\n\ffirst found that there was a valid contractual agreement to\n\narbitrate, id. at *4, and that the agreement was neither\n\nprocedurally nor substantively unconscionable under Massachusetts\n\nlaw, id. at *5. Schrader has not appealed those conclusions, so\n\nwe take them as established fact.\n\n The district court next considered whether Schrader's\n\nwrongful death claims, which she brought in her capacity as\n\npersonal representative of her mother's estate, were derivative of\n\nclaims that Emma could have brought such that the claims were\n\nsubject to arbitration. Id. at *6. Schrader contended that her\n\nwrongful death claims were not subject to the Agreement because a\n\nwrongful death beneficiary's claims are independent of any claims\n\nfalling within the scope of the Agreement. Id.\n\n Both parties argued that the issue turned on\n\nMassachusetts state law. As no state opinion clearly decided the\n\nissue, the district court made an informed prediction that the SJC\n\nwould hold that \"a wrongful death claim is a derivative claim as\n\nto which the decedent's representatives and beneficiaries would be\n\nbound by [the decedent's] agreement to arbitrate.\" Id. at *8.\n\nThe district court highlighted several reasons for its conclusion:\n\nFirst, claimants \"can only recover if the decedent died under such\n\ncircumstances that the deceased could have recovered damages for\n\npersonal injuries if his death had not resulted.\" Id. at *7\n\n(internal quotation marks omitted). Second, \"the elements in a\n\n\n - 6 -\n\fwrongful death claim mirror the elements necessary to prove\n\nnegligence had the decedent survived,\" so, \"effectively,\" \"there\n\nwould be no cause of action unless the decedent could have sued.\"\n\nId. at *7 n.3. And third, under Massachusetts law, one can only\n\nbring a \"wrongful death claim as the executor or administrator of\n\nthe decedent's estate.\" Id. at *7. The district court added that,\n\nthough the issue was one that might yield a different outcome from\n\nstate to state, \"the weight of persuasive authority treats wrongful\n\ndeath claims as derivative.\" Id. at *8.\n\n After this, Schrader, for the first time, asked the\n\ndistrict court for certification to the SJC. GGNSC Chestnut Hill\n\nLLC v. Schrader, No. CV 16-10525-DPW, 2018 WL 3405339, at *1 (D.\n\nMass. July 12, 2018). The district court declined to certify any\n\nquestion at the \"thirteenth-hour.\" Id.\n\n II.\n\n This court may, on its own motion, certify questions to\n\nthe SJC when those questions may be determinative of the pending\n\ncause of action and when there is no controlling precedent that\n\nanswers them. Hundley v. Marsh (In re Hundley), 603 F.3d 95, 98\n\n(1st Cir. 2010); Mass. S.J.C. R. 1:03. This case meets both\n\nconditions. Because the Agreement's enforceability as to\n\nSchrader's claims turns on important issues of state law, including\n\nstatutory interpretation, common law, and matters of policy, we\n\nthink it best to certify questions to the SJC.\n\n\n - 7 -\n\f We begin with background. \"[A]rbitration is a matter of\n\ncontract.\" Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67\n\n(2010). State contract law controls \"who is bound by [arbitration\n\nagreements].\" Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630\n\n(2009). We look to Massachusetts law to determine whether\n\nSchrader, in bringing the wrongful death action, is bound by her\n\nmother's Agreement to arbitrate claims against GGNSC.3 Resolution\n\nof this state law issue will resolve this federal case.\n\n The parties argue that wrongful death claims are either\n\n\"independent\" (Schrader) or \"derivative\" (GGNSC) of the claim\n\nconcerning the decedent's death. Schrader argues that\n\nMassachusetts segregates the rights of claimants and gives five\n\nindependent bases on which a claimant may bring a wrongful death\n\nclaim. See Mass. Gen. Laws ch. 229, § 2.\n\n GGNSC responds that, in a case, like this one, that is\n\nbased on Section 2(1) or 2(2) of the wrongful death statute, the\n\nplaintiff must prove that the defendant negligently caused the\n\ndecedent's death. GGNSC argues that because proving wrongful death\n\n\n 3 We reject Schrader's general argument that she, a non-\nsignatory to the Agreement (only having signed it using her\nmother's power of attorney), cannot be compelled to arbitrate her\nwrongful death beneficiary claims. Schrader waived this argument\nby not raising it before the district court. See Vineberg v.\nBissonnette, 548 F.3d 50, 57 (1st Cir. 2008). Even absent waiver,\nthe argument lacks merit: There are exceptions to the \"general\nproposition\" that \"a contract cannot bind a non-party.\" Grand\nWireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 9 (1st Cir.\n2014); see id. at 9-10.\n\n\n - 8 -\n\fis contingent on proving underlying negligence against the\n\ndecedent, the beneficiaries' right of recovery must be viewed as\n\nderived from the decedent's wrongful death claim. GGNSC highlights\n\nthat Massachusetts requires that all wrongful death actions be\n\nbrought by a personal representative of the decedent. And GGNSC\n\nadds that its view is consistent with how the SJC has treated\n\nanalogous claims, and that good policy reasons support its reading.\n\n Schrader responds that, although only a personal\n\nrepresentative may bring the suit, \"it is the [beneficiary's] cause\n\nof action.\" Gaudette v. Webb, 284 N.E.2d 222, 230 (Mass. 1972).\n\nSchrader adds that, under the Massachusetts wrongful death\n\nstatute, beneficiaries may receive different damages from those\n\nthat would have been available to a decedent or her estate.\n\n Schrader also argues that Massachusetts law is not\n\nunsettled and that it has resolved this question. She says the\n\nSJC has consistently viewed wrongful death claims as independent.\n\nGGNSC responds that, although Massachusetts may once have viewed\n\nits wrongful death action as independent, see, e.g., McCarthy v.\n\nWood Lumber Co., 107 N.E. 439, 440 (1914), later amendments to the\n\nwrongful death statute have invalidated that classification. In\n\n1958, the legislature limited recovery under the statute to \"such\n\ncircumstances that the deceased could have recovered damages for\n\npersonal injury if his death had not resulted.\" 1958 Mass. Acts\n\n122, ch. 238 § 1. And the SJC has since held that the\n\n\n - 9 -\n\fCommonwealth's \"wrongful death statutes w[ould] no longer be\n\nregarded as 'creating the right' to recovery for wrongful death\" --\n\nthe law had \"evolved to the point where it may now be held that\n\nthe right to recovery for wrongful death is of common law origin.\"\n\nGaudette, 284 N.E.2d at 229.\n\n We hold that Massachusetts law does not clearly decide\n\nthe independent/derivative or other relevant questions about the\n\nstatus of wrongful death actions in relation to the decedent. The\n\nparties have provided us with no citation to a dispositive case.\n\nOur own research reveals that the SJC has most recently reserved\n\nthe question this case presents. See Johnson v. Kindred\n\nHealthcare, Inc., 2 N.E.3d 849, 856 n.14 (Mass. 2014) (declining\n\nto address whether \"a decedent's agreement to arbitrate future\n\ndisputes\" binds \"the statutory beneficiaries of a wrongful death\n\nclaim\").\n\n Even absent controlling precedent, certification may be\n\ninappropriate when \"the course the state court would take is\n\nreasonably clear.\" Ropes & Gray LLP v. Jalbert (In re Engage,\n\nInc.), 544 F.3d 50, 53 (1st Cir. 2008) (internal quotation marks\n\nand alterations omitted). This is not such a case.\n\n It may be that the SJC will conclude that wrongful death\n\nclaims have both independent and derivative aspects. As noted, in\n\nMassachusetts, claims under the first clause of the Massachusetts\n\nwrongful death statute require a personal representative to show\n\n\n - 10 -\n\fnegligence against the decedent resulting in death. See Mass.\n\nGen. Laws ch. 229, § 2. But as the SJC has noted, \"[i]n a very\n\nreal sense,\" a wrongful death claim \"is the [beneficiary's] cause\n\nof action.\" Gaudette, 284 N.E.2d at 230.\n\n The issue here has yielded \"profound conflict\" across\n\nthe nation.4 Restatement (Second) of Judgments § 46 cmt. b. GGNSC\n\nasserts that twenty-seven states find wrongful death claims to be\n\nderivative, while fourteen states find them to be independent.\n\nGGNSC adds a wrinkle. It says that the answer to the\n\nindependent/derivative question may possibly require addressing\n\nanother state-law issue. It argues that at least one state,\n\ndespite holding that a wrongful death claim is independent, has\n\nheld that, depending on the facts, such a claim may still be\n\nsubject to the decedent's arbitration agreement. See Allen v.\n\nPacheco, 71 P.3d 375, 379 (Colo. 2003) (en banc).\n\n There are also substantial policy considerations at\n\nstake. The SJC has observed that \"[l]ike all common-law causes of\n\naction, [Massachusetts's] common law of wrongful death evolves to\n\nmeet changes in the evolving life of the Commonwealth.\" Matsuyama\n\nv. Birnbaum, 890 N.E.2d 819, 837 (Mass. 2008). The American\n\n\n 4 Decisions within the District of Massachusetts under\nMassachusetts law are also split. Compare Schrader, 2018 WL\n1582555, with Angelo v. USA Triathlon, No. CIV.A. 13-12177-LTS,\n2014 WL 4716195 (D. Mass. Sept. 19, 2014), and Chung v.\nStudentCity.com, Inc., No. CIV.A. 10-10943-RWZ, 2011 WL 4074297\n(D. Mass. Sept. 9, 2011).\n\n\n - 11 -\n\fAssociation of Retired Persons (AARP) and Massachusetts Advocates\n\nfor Nursing Home Reform, amici in favor of reversal, ably highlight\n\nnumerous issues that may or may not come under the rubric of\n\n\"changes in the evolving life of the Commonwealth.\"5\n\n Because this case presents an unresolved question of\n\nMassachusetts law whose answer is unclear, and because resolving\n\nthat issue may implicate policy judgments best left to the SJC, we\n\nexercise our discretion in favor of certification. See In re\n\nEngage, 544 F.3d at 53; see also Steinmetz v. Coyle & Caron, Inc.,\n\n862 F.3d 128, 142 (1st Cir. 2017); Showtime Entm't, LLC v. Town of\n\nMendon, 769 F.3d 61, 82 (1st Cir. 2014).\n\n We certify these questions to the Massachusetts SJC:\n\n 1. Is the wrongful death claim of Emma\n Schrader's statutory heirs derivative or\n independent of Emma Schrader's own cause\n of action?\n 2. If the answer to the first question does\n not resolve the issue presented to the\n federal court, is Jackalyn Schrader's\n wrongful death claim nonetheless subject\n to Emma Schrader's Agreement that her\n \"next of kin, guardian, executor,\n administrator, legal representative, or\n heir\" would arbitrate claims against\n GGNSC?\n\n\n 5 AARP argues that nursing facility residents suffer from\nhigh rates of abuse and neglect, that federal and state enforcement\nefforts have inadequately protected those residents, and that\narbitration fails to address that culture of abuse and neglect.\nMassachusetts Advocates for Nursing Home Reform add that the\nCommonwealth has a public policy interest in maintaining\ntransparency in nursing homes because decisions in litigation are\npublic and that is not necessarily true of arbitrations.\n\n\n - 12 -\n\fWe welcome any additional observations about Massachusetts law\n\nthat the SJC may wish to offer.\n\n III.\n\n We direct the Clerk of this court to forward to the\n\nMassachusetts SJC, under this court's official seal, a copy of the\n\ncertified questions and our decision here, and a copy of the briefs\n\nand appendix filed by the parties and amici curiae, and a copy of\n\nthe record filed in the district court, which set forth all facts\n\nrelevant to the issues certified. We retain jurisdiction pending\n\nthat court's determination.\n\n\n\n\n - 13 -\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: GGNSC ADMINISTRATIVE SERVICES, LLC; Golden Gate National Senior Care, LLC ; GGNSC Holdings, LLC; GGNSC Chestnut Hill, LLC, D/B/A Golden Living Center-Heathwood, Plaintiffs, Appellees, v. Jackalyn M. SCHRADER, as the Personal Representative of the Estate of Emma J. Schrader, Defendant, Appellant.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\n\\nNo. 18-1779\\n\\n GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR\\n CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a\\n Golden Living Center - Heathwood,\\n\\n Plaintiffs, Appellees,\\n\\n v.\\n\\n JACKALYN M. SCHRADER, as the personal representative of the\\n estate of Emma J. Schrader,\\n\\n Defendant, Appellant.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF MASSACHUSETTS\\n\\n [Hon. Douglas P. Woodlock, U.S. District Judge]\\n\\n\\n Before\\n\\n Howard, Chief Judge,\\n Lynch and Lipez, Circuit Judges.\\n\\n\\n John Vail, with whom John Vail Law, PLLC, Daniel T. Landry,\\nDavid J. Hoey, and Law Offices of David J. Hoey, P.C. were on\\nbrief, for appellant.\\n William Alvarado Rivera, Meryl D. Grenadier, and Kelly R.\\nBagby on brief for AARP and AARP Foundation, amici curiae.\\n Robert E. Curtis, Jr. on brief for Massachusetts Advocates\\nfor Nursing Home Reform, amicus curiae.\\n Joseph M. Desmond, with whom Justin L. Amos and Morrison\\nMahoney LLP were on brief, for appellees.\\n\\fFebruary 26, 2019\\n\\f LYNCH, Circuit Judge. This case is about arbitration\\n\\nagreements, nursing homes, and wrongful death claims under\\n\\nMassachusetts law. A set of organizations (collectively, GGNSC)\\n\\nthat oversees the Golden Living Center Heathwood (Heathwood) in\\n\\nChestnut Hill sued in federal court to compel arbitration of an\\n\\nunderlying state wrongful death action brought by the personal\\n\\nrepresentative of a deceased former Heathwood resident. The\\n\\nfederal court compelled arbitration and declined to issue a stay\\n\\nof the state wrongful death action. GGNSC Chestnut Hill LLC v.\\n\\nSchrader, No. CV 16-10525-DPW, 2018 WL 1582555, at *9-10 (D. Mass.\\n\\nMar. 31, 2018). Whether arbitration was required turns on how\\n\\nstate law characterizes wrongful death actions.\\n\\n The personal representative appeals. She argues that as\\n\\nthe plaintiff in the wrongful death suit, under state law, she is\\n\\nnot bound by the decedent's agreement to arbitrate with GGNSC\\n\\nbecause her wrongful death right of recovery is independent of the\\n\\ndecedent's wrongful death claim. GGNSC argues, to the contrary,\\n\\nthat Massachusetts beneficiaries' wrongful death claims are\\n\\nderivative of the decedent's wrongful death claim, and so the\\n\\narbitration agreement is binding. Because that dispute turns on\\n\\nthe characterization of wrongful death actions by the\\n\\nCommonwealth, we certify questions to the Massachusetts Supreme\\n\\nJudicial Court (SJC) under its Rule 1:03. See Bos. Gas Co. v.\\n\\nCentury Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008).\\n\\n\\n - 3 -\\n\\f I.\\n\\n The parties do not dispute the relevant facts, which we\\n\\ntake largely from the district court opinion. Emma Schrader was\\n\\nbrought by ambulance to Heathwood in February 2013. After Emma's\\n\\nadmission and treatment, Jackalyn M. Schrader (Schrader), Emma's\\n\\ndaughter and appellant here, signed several documents for her\\n\\nmother, including a standard (undated) \\\"Alternative Dispute\\n\\nResolution Agreement\\\" (Agreement). Schrader had authority to sign\\n\\nthese documents on her mother's behalf -- on September 11, 2011,\\n\\nEmma had executed a document granting Schrader her power of\\n\\nattorney.\\n\\n The Agreement states in bold letters that a signature on\\n\\nthe Agreement is not a condition of admission to or continued\\n\\nresidence in the facility. It also says that the resident may\\n\\nrevoke \\\"the Agreement by sending written notice to [Heathwood]\\n\\nwithin thirty (30) days of signing it.\\\" The Agreement form has\\n\\ntwo signature lines: one to accept and one to decline. Schrader\\n\\nsigned the accept line.\\n\\n The Agreement provides that any dispute covered by the\\n\\nAgreement \\\"shall be resolved exclusively by an ADR process that\\n\\nshall include mediation and, where mediation is not successful,\\n\\nbinding arbitration.\\\" The Agreement applies to \\\"the Resident,\\\" a\\n\\nterm that the Agreement defines to include \\\"all persons whose claim\\n\\nis or may be derived through or on behalf of the Resident,\\n\\n\\n - 4 -\\n\\fincluding any next of kin, guardian, executor, administrator,\\n\\nlegal representative, or heir of the Resident, and any person who\\n\\nhas executed this Agreement on the Resident's behalf.\\\"1\\n\\n Emma died on December 3, 2013. Schrader brought a\\n\\nwrongful death action against GGNSC in Massachusetts state court\\n\\non February 4, 2016.2 The state complaint alleges that Schrader\\n\\nbrought the action as the personal representative of Emma's estate\\n\\n\\\"on behalf of the heirs of the decedent.\\\" And it alleges that\\n\\nEmma's injuries were \\\"injuries for which she would have been\\n\\nentitled to bring an action had she survived, and the right to\\n\\nbring such action survives her.\\\" The injuries alleged were a\\n\\n\\\"preventable sacral decubitus\\\" and resulting pain and suffering,\\n\\nwhich eventually required surgery and transfer to a special care\\n\\nfacility, and from which Emma never recovered.\\n\\n GGNSC then brought this federal court action on March\\n\\n15, 2016, under the Federal Arbitration Act to compel Schrader to\\n\\narbitrate the dispute. The district court granted the motion to\\n\\ncompel. Schrader, 2018 WL 1582555, at *10. The district court\\n\\n\\n\\n 1 GGNSC has never argued that Jackalyn's wrongful death\\nclaims are subject to the Agreement's mandatory arbitration\\nprovision because she is the \\\"person who has executed th[e]\\nAgreement on the Resident's behalf.\\\"\\n 2 Jackalyn says she also brought a negligence claim. The\\ndistrict court treated this case as only concerning wrongful death,\\nfinding the two claims to be equivalent for these purposes. The\\nparties have done the same on appeal, so we do too.\\n\\n\\n - 5 -\\n\\ffirst found that there was a valid contractual agreement to\\n\\narbitrate, id. at *4, and that the agreement was neither\\n\\nprocedurally nor substantively unconscionable under Massachusetts\\n\\nlaw, id. at *5. Schrader has not appealed those conclusions, so\\n\\nwe take them as established fact.\\n\\n The district court next considered whether Schrader's\\n\\nwrongful death claims, which she brought in her capacity as\\n\\npersonal representative of her mother's estate, were derivative of\\n\\nclaims that Emma could have brought such that the claims were\\n\\nsubject to arbitration. Id. at *6. Schrader contended that her\\n\\nwrongful death claims were not subject to the Agreement because a\\n\\nwrongful death beneficiary's claims are independent of any claims\\n\\nfalling within the scope of the Agreement. Id.\\n\\n Both parties argued that the issue turned on\\n\\nMassachusetts state law. As no state opinion clearly decided the\\n\\nissue, the district court made an informed prediction that the SJC\\n\\nwould hold that \\\"a wrongful death claim is a derivative claim as\\n\\nto which the decedent's representatives and beneficiaries would be\\n\\nbound by [the decedent's] agreement to arbitrate.\\\" Id. at *8.\\n\\nThe district court highlighted several reasons for its conclusion:\\n\\nFirst, claimants \\\"can only recover if the decedent died under such\\n\\ncircumstances that the deceased could have recovered damages for\\n\\npersonal injuries if his death had not resulted.\\\" Id. at *7\\n\\n(internal quotation marks omitted). Second, \\\"the elements in a\\n\\n\\n - 6 -\\n\\fwrongful death claim mirror the elements necessary to prove\\n\\nnegligence had the decedent survived,\\\" so, \\\"effectively,\\\" \\\"there\\n\\nwould be no cause of action unless the decedent could have sued.\\\"\\n\\nId. at *7 n.3. And third, under Massachusetts law, one can only\\n\\nbring a \\\"wrongful death claim as the executor or administrator of\\n\\nthe decedent's estate.\\\" Id. at *7. The district court added that,\\n\\nthough the issue was one that might yield a different outcome from\\n\\nstate to state, \\\"the weight of persuasive authority treats wrongful\\n\\ndeath claims as derivative.\\\" Id. at *8.\\n\\n After this, Schrader, for the first time, asked the\\n\\ndistrict court for certification to the SJC. GGNSC Chestnut Hill\\n\\nLLC v. Schrader, No. CV 16-10525-DPW, 2018 WL 3405339, at *1 (D.\\n\\nMass. July 12, 2018). The district court declined to certify any\\n\\nquestion at the \\\"thirteenth-hour.\\\" Id.\\n\\n II.\\n\\n This court may, on its own motion, certify questions to\\n\\nthe SJC when those questions may be determinative of the pending\\n\\ncause of action and when there is no controlling precedent that\\n\\nanswers them. Hundley v. Marsh (In re Hundley), 603 F.3d 95, 98\\n\\n(1st Cir. 2010); Mass. S.J.C. R. 1:03. This case meets both\\n\\nconditions. Because the Agreement's enforceability as to\\n\\nSchrader's claims turns on important issues of state law, including\\n\\nstatutory interpretation, common law, and matters of policy, we\\n\\nthink it best to certify questions to the SJC.\\n\\n\\n - 7 -\\n\\f We begin with background. \\\"[A]rbitration is a matter of\\n\\ncontract.\\\" Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67\\n\\n(2010). State contract law controls \\\"who is bound by [arbitration\\n\\nagreements].\\\" Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630\\n\\n(2009). We look to Massachusetts law to determine whether\\n\\nSchrader, in bringing the wrongful death action, is bound by her\\n\\nmother's Agreement to arbitrate claims against GGNSC.3 Resolution\\n\\nof this state law issue will resolve this federal case.\\n\\n The parties argue that wrongful death claims are either\\n\\n\\\"independent\\\" (Schrader) or \\\"derivative\\\" (GGNSC) of the claim\\n\\nconcerning the decedent's death. Schrader argues that\\n\\nMassachusetts segregates the rights of claimants and gives five\\n\\nindependent bases on which a claimant may bring a wrongful death\\n\\nclaim. See Mass. Gen. Laws ch. 229, § 2.\\n\\n GGNSC responds that, in a case, like this one, that is\\n\\nbased on Section 2(1) or 2(2) of the wrongful death statute, the\\n\\nplaintiff must prove that the defendant negligently caused the\\n\\ndecedent's death. GGNSC argues that because proving wrongful death\\n\\n\\n 3 We reject Schrader's general argument that she, a non-\\nsignatory to the Agreement (only having signed it using her\\nmother's power of attorney), cannot be compelled to arbitrate her\\nwrongful death beneficiary claims. Schrader waived this argument\\nby not raising it before the district court. See Vineberg v.\\nBissonnette, 548 F.3d 50, 57 (1st Cir. 2008). Even absent waiver,\\nthe argument lacks merit: There are exceptions to the \\\"general\\nproposition\\\" that \\\"a contract cannot bind a non-party.\\\" Grand\\nWireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 9 (1st Cir.\\n2014); see id. at 9-10.\\n\\n\\n - 8 -\\n\\fis contingent on proving underlying negligence against the\\n\\ndecedent, the beneficiaries' right of recovery must be viewed as\\n\\nderived from the decedent's wrongful death claim. GGNSC highlights\\n\\nthat Massachusetts requires that all wrongful death actions be\\n\\nbrought by a personal representative of the decedent. And GGNSC\\n\\nadds that its view is consistent with how the SJC has treated\\n\\nanalogous claims, and that good policy reasons support its reading.\\n\\n Schrader responds that, although only a personal\\n\\nrepresentative may bring the suit, \\\"it is the [beneficiary's] cause\\n\\nof action.\\\" Gaudette v. Webb, 284 N.E.2d 222, 230 (Mass. 1972).\\n\\nSchrader adds that, under the Massachusetts wrongful death\\n\\nstatute, beneficiaries may receive different damages from those\\n\\nthat would have been available to a decedent or her estate.\\n\\n Schrader also argues that Massachusetts law is not\\n\\nunsettled and that it has resolved this question. She says the\\n\\nSJC has consistently viewed wrongful death claims as independent.\\n\\nGGNSC responds that, although Massachusetts may once have viewed\\n\\nits wrongful death action as independent, see, e.g., McCarthy v.\\n\\nWood Lumber Co., 107 N.E. 439, 440 (1914), later amendments to the\\n\\nwrongful death statute have invalidated that classification. In\\n\\n1958, the legislature limited recovery under the statute to \\\"such\\n\\ncircumstances that the deceased could have recovered damages for\\n\\npersonal injury if his death had not resulted.\\\" 1958 Mass. Acts\\n\\n122, ch. 238 § 1. And the SJC has since held that the\\n\\n\\n - 9 -\\n\\fCommonwealth's \\\"wrongful death statutes w[ould] no longer be\\n\\nregarded as 'creating the right' to recovery for wrongful death\\\" --\\n\\nthe law had \\\"evolved to the point where it may now be held that\\n\\nthe right to recovery for wrongful death is of common law origin.\\\"\\n\\nGaudette, 284 N.E.2d at 229.\\n\\n We hold that Massachusetts law does not clearly decide\\n\\nthe independent/derivative or other relevant questions about the\\n\\nstatus of wrongful death actions in relation to the decedent. The\\n\\nparties have provided us with no citation to a dispositive case.\\n\\nOur own research reveals that the SJC has most recently reserved\\n\\nthe question this case presents. See Johnson v. Kindred\\n\\nHealthcare, Inc., 2 N.E.3d 849, 856 n.14 (Mass. 2014) (declining\\n\\nto address whether \\\"a decedent's agreement to arbitrate future\\n\\ndisputes\\\" binds \\\"the statutory beneficiaries of a wrongful death\\n\\nclaim\\\").\\n\\n Even absent controlling precedent, certification may be\\n\\ninappropriate when \\\"the course the state court would take is\\n\\nreasonably clear.\\\" Ropes & Gray LLP v. Jalbert (In re Engage,\\n\\nInc.), 544 F.3d 50, 53 (1st Cir. 2008) (internal quotation marks\\n\\nand alterations omitted). This is not such a case.\\n\\n It may be that the SJC will conclude that wrongful death\\n\\nclaims have both independent and derivative aspects. As noted, in\\n\\nMassachusetts, claims under the first clause of the Massachusetts\\n\\nwrongful death statute require a personal representative to show\\n\\n\\n - 10 -\\n\\fnegligence against the decedent resulting in death. See Mass.\\n\\nGen. Laws ch. 229, § 2. But as the SJC has noted, \\\"[i]n a very\\n\\nreal sense,\\\" a wrongful death claim \\\"is the [beneficiary's] cause\\n\\nof action.\\\" Gaudette, 284 N.E.2d at 230.\\n\\n The issue here has yielded \\\"profound conflict\\\" across\\n\\nthe nation.4 Restatement (Second) of Judgments § 46 cmt. b. GGNSC\\n\\nasserts that twenty-seven states find wrongful death claims to be\\n\\nderivative, while fourteen states find them to be independent.\\n\\nGGNSC adds a wrinkle. It says that the answer to the\\n\\nindependent/derivative question may possibly require addressing\\n\\nanother state-law issue. It argues that at least one state,\\n\\ndespite holding that a wrongful death claim is independent, has\\n\\nheld that, depending on the facts, such a claim may still be\\n\\nsubject to the decedent's arbitration agreement. See Allen v.\\n\\nPacheco, 71 P.3d 375, 379 (Colo. 2003) (en banc).\\n\\n There are also substantial policy considerations at\\n\\nstake. The SJC has observed that \\\"[l]ike all common-law causes of\\n\\naction, [Massachusetts's] common law of wrongful death evolves to\\n\\nmeet changes in the evolving life of the Commonwealth.\\\" Matsuyama\\n\\nv. Birnbaum, 890 N.E.2d 819, 837 (Mass. 2008). The American\\n\\n\\n 4 Decisions within the District of Massachusetts under\\nMassachusetts law are also split. Compare Schrader, 2018 WL\\n1582555, with Angelo v. USA Triathlon, No. CIV.A. 13-12177-LTS,\\n2014 WL 4716195 (D. Mass. Sept. 19, 2014), and Chung v.\\nStudentCity.com, Inc., No. CIV.A. 10-10943-RWZ, 2011 WL 4074297\\n(D. Mass. Sept. 9, 2011).\\n\\n\\n - 11 -\\n\\fAssociation of Retired Persons (AARP) and Massachusetts Advocates\\n\\nfor Nursing Home Reform, amici in favor of reversal, ably highlight\\n\\nnumerous issues that may or may not come under the rubric of\\n\\n\\\"changes in the evolving life of the Commonwealth.\\\"5\\n\\n Because this case presents an unresolved question of\\n\\nMassachusetts law whose answer is unclear, and because resolving\\n\\nthat issue may implicate policy judgments best left to the SJC, we\\n\\nexercise our discretion in favor of certification. See In re\\n\\nEngage, 544 F.3d at 53; see also Steinmetz v. Coyle & Caron, Inc.,\\n\\n862 F.3d 128, 142 (1st Cir. 2017); Showtime Entm't, LLC v. Town of\\n\\nMendon, 769 F.3d 61, 82 (1st Cir. 2014).\\n\\n We certify these questions to the Massachusetts SJC:\\n\\n 1. Is the wrongful death claim of Emma\\n Schrader's statutory heirs derivative or\\n independent of Emma Schrader's own cause\\n of action?\\n 2. If the answer to the first question does\\n not resolve the issue presented to the\\n federal court, is Jackalyn Schrader's\\n wrongful death claim nonetheless subject\\n to Emma Schrader's Agreement that her\\n \\\"next of kin, guardian, executor,\\n administrator, legal representative, or\\n heir\\\" would arbitrate claims against\\n GGNSC?\\n\\n\\n 5 AARP argues that nursing facility residents suffer from\\nhigh rates of abuse and neglect, that federal and state enforcement\\nefforts have inadequately protected those residents, and that\\narbitration fails to address that culture of abuse and neglect.\\nMassachusetts Advocates for Nursing Home Reform add that the\\nCommonwealth has a public policy interest in maintaining\\ntransparency in nursing homes because decisions in litigation are\\npublic and that is not necessarily true of arbitrations.\\n\\n\\n - 12 -\\n\\fWe welcome any additional observations about Massachusetts law\\n\\nthat the SJC may wish to offer.\\n\\n III.\\n\\n We direct the Clerk of this court to forward to the\\n\\nMassachusetts SJC, under this court's official seal, a copy of the\\n\\ncertified questions and our decision here, and a copy of the briefs\\n\\nand appendix filed by the parties and amici curiae, and a copy of\\n\\nthe record filed in the district court, which set forth all facts\\n\\nrelevant to the issues certified. We retain jurisdiction pending\\n\\nthat court's determination.\\n\\n\\n\\n\\n - 13 -\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":483,"cells":{"id":{"kind":"number","value":4595186,"string":"4,595,186"},"name":{"kind":"string","value":"UNITED STATES of America, Appellant, v. David SANTIAGO-COLÓN, Defendant, Appellee."},"name_abbreviation":{"kind":"string","value":"United States v. Santiago-Colon"},"decision_date":{"kind":"string","value":"2019-02-28"},"docket_number":{"kind":"string","value":"16-2509P"},"court":{"kind":"string","value":"U.S. Court of Appeals for the First Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Torruella, Thompson, Kayatta\", \"parties\": \"\", \"opinions\": [{\"author\": \"TORRUELLA, Circuit Judge\", \"type\": \"010combined\", \"text\": \"United States Court of Appeals\\n For the First Circuit\\n\\nNo. 16-2509\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellant,\\n\\n v.\\n\\n DAVID SANTIAGO-COLÓN,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n [Hon. Gustavo A. Gelpí, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n John P. Taddei, Attorney, Appellate Section Criminal\\nDivision, U.S. Department of Justice, with whom Kenneth A. Blanco,\\nActing Assistant Attorney General, Trevor N. McFadden, Acting\\nPrincipal Deputy Assistant Attorney General, Rosa E. Rodríguez-\\nVélez, United States Attorney, and Mariana E. Bauzá-Almonte,\\nAssistant United States Attorney, Chief, Appellate Section, were\\non brief, for appellant.\\n Andrew S. McCutcheon, Assistant Federal Public Defender, with\\nwhom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric\\nAlexander Vos, Federal Public Defender, and Vivianne M. Marrero-\\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\\nSection, were on brief, for appellee.\\n\\n\\n February 28, 2019\\n\\f TORRUELLA, Circuit Judge. The United States appeals the\\n\\ndistrict court's order granting David Santiago-Colón's\\n\\n(\\\"Santiago\\\") motion to suppress identification evidence, giving\\n\\npreclusive effect to a Puerto Rico Court of Appeals's order\\n\\nsuppressing this same evidence in a local proceeding for different\\n\\noffenses. According to the district court, inasmuch as Puerto\\n\\nRico and the United States are a single sovereign for purposes of\\n\\nthe Double Jeopardy Clause, Puerto Rico v. Sánchez Valle,\\n\\n136 S. Ct. 1863, 1869-77 (2016), it was bound by the local court's\\n\\nfinal judgment suppressing identification evidence, even though\\n\\nfederal prosecutors \\\"did not participate in the [Puerto Rico] court\\n\\ncriminal proceedings against Santiago.\\\" United States v.\\n\\nSantiago-Colón, 213 F. Supp. 3d 297, 298 (D.P.R. 2016). In so\\n\\nruling, the district court deviated from our on-point precedent\\n\\nholding that suppression of evidence by a Puerto Rico court does\\n\\nnot require a federal court to suppress that same evidence unless\\n\\nfederal prosecutors were a party, or were in privity with a party,\\n\\nto the suppression hearing in the Puerto Rico court, United States\\n\\nv. Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987), which was\\n\\nnot the case here. Sánchez Valle, moreover, did not change the\\n\\nlaw in this area. Accordingly, we reverse and vacate the district\\n\\ncourt's suppression order.\\n\\n\\t\\n\\n\\n -2-\\n\\f I. Background\\n\\nA. Factual Background\\n\\n On January 13, 2013, Puerto Rico Police Department Agent\\n\\nCarlos Sepúlveda-Rivera (\\\"Sepúlveda\\\") was off-duty at La Casita,\\n\\na bar in Villalba, Puerto Rico, when he got into an altercation\\n\\nwith two men. Sepúlveda and the two men exchanged gunfire. After\\n\\nthe men shot Sepúlveda four times, he was transported to the\\n\\nhospital for treatment of his injuries. Sergeant Pedro Quiles-\\n\\nTorres (\\\"Quiles\\\") interviewed Sepúlveda at the hospital later that\\n\\nday. During his interview, Sepúlveda provided a description of\\n\\nhis two assailants. 1 Based on the descriptions provided by\\n\\nSepúlveda and a review of the security video footage of La Casita,\\n\\n\\n\\n1 According to the government, on the same evening the shootout\\noccurred, Sepúlveda provided a description of the shooters'\\nphysical characteristics and attire. He described one of his\\nassailants, later identified as Santiago, as slim, tall, wearing\\na jacket, a black sweater, and short blue pants. Sepúlveda also\\nstated that, although he could not remember their names, he knew\\nboth assailants. Sepúlveda explained that he knew Santiago\\nbecause he played basketball for the team of La Sierra, the\\nneighborhood where Sepúlveda resides, and that he was called\\n\\\"Cabezón\\\" (Spanish for \\\"Big Head\\\"). Sepúlveda also stated that\\nSantiago was either the son-in-law or former son-in-law of the\\nformer mayor of Villalba. Indeed, Santiago's known nickname is\\n\\\"Cabezón,\\\" he played for La Sierra basketball team, and was related\\nto the former mayor of Villalba. As to the second assailant,\\nlater identified as Richard Cartagena-Suárez, Sepúlveda provided\\na physical description, described his clothing at the time of the\\nincident, and stated that he knew him because Sepúlveda had\\npreviously assisted in the individual's arrest for an unrelated\\noffense.\\n\\n\\n -3-\\n\\flocal law enforcement agents identified Santiago and Richard\\n\\nCartagena-Suárez (\\\"Cartagena\\\") as the shooters. The next day,\\n\\nQuiles showed two photo arrays to Sepúlveda, each of them\\n\\ncontaining nine photos. One array included Santiago's photo, and\\n\\nthe other one included Cartagena's. Sepúlveda picked Santiago and\\n\\nCartagena from the photo arrays.\\n\\nB. Local Case\\n\\n Puerto Rico prosecutors charged Santiago with attempted\\n\\nfirst-degree murder, carrying and using a firearm without a\\n\\nlicense, and discharging or pointing a firearm, in violation of\\n\\nPuerto Rico law. Santiago moved to suppress Sepúlveda's\\n\\nidentification of him on the grounds that it was obtained in\\n\\ncontravention of the Puerto Rico Rules of Criminal Procedure. The\\n\\nlocal prosecution opposed. The local trial court held a three-\\n\\nday evidentiary hearing, in which four witnesses (including\\n\\nSepúlveda and Quiles) testified. After the local trial court\\n\\ndenied suppression, Santiago appealed to the Puerto Rico Court of\\n\\nAppeals. The Puerto Rico Court of Appeals then reversed and\\n\\nsuppressed the identification evidence. It noted some\\n\\ncontradictions in Sepúlveda's testimony, concluded that\\n\\nSepúlveda's identification of Santiago \\\"and the photographic line\\n\\nup led by Sergeant Quiles were not trustworthy pursuant to the\\n\\ncriteria established by . . . [the Puerto Rico] Supreme Court in\\n\\n\\n -4-\\n\\fPueblo v. Hernández González,\\\" 2009 WL 197570 (2009)\\n\\n(untranslated), and remanded the case to the local trial court.\\n\\nSee App. at 65, 84, May 18, 2017, No. 16-2509 (certified\\n\\ntranslation of People v. Santiago-Colón, KLCE 2014-00130, 2014 WL\\n\\n5438091 at *13, 20 (P.R. Ct. of App. Sept. 30, 2014)). The Puerto\\n\\nRico Supreme Court declined to intervene, and the case was later\\n\\ndismissed.\\n\\nC. Federal Case\\n\\n Based on the January 13, 2013 incident, a federal grand\\n\\njury returned an indictment on June 4, 2015, charging Santiago\\n\\nwith being a felon in possession of a firearm and ammunition, in\\n\\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2 Santiago moved\\n\\nto suppress Sepúlveda's out-of-court identification and to prevent\\n\\nSepúlveda from identifying him in court. He argued that the\\n\\nidentification procedure had been unduly suggestive, that the\\n\\nPuerto Rico Court of Appeals had already considered and rejected\\n\\nthe testimony of Sepúlveda and Quiles -- \\\"the only witnesses who\\n\\n[could] provide material testimony on the issues relevant to the\\n\\ncase at bar\\\" -- and that said determination was final. Urging the\\n\\ncourt to apply a standard like the one used when reviewing habeas\\n\\n\\n\\n2 Santiago was indicted after the Puerto Rico Court of Appeals\\nissued its opinion suppressing his identification, but before the\\nlocal case was dismissed.\\n\\n\\n -5-\\n\\fcorpus petitions, Santiago argued that \\\"disagreement alone is not\\n\\nenough\\\" for a federal court to ignore a state court's credibility\\n\\ndetermination. Rather, \\\"[t]he federal court must conclude not\\n\\nonly that the state court's determination was wrong, but that it\\n\\nwas unreasonable in light of the evidence presented.\\\" Because,\\n\\naccording to Santiago, the Puerto Rico Court of Appeals's decision\\n\\nwas not unreasonable, he urged the district court to \\\"defer\\\" to\\n\\nthe \\\"findings made by Puerto Rico's courts,\\\" suppress Sepúlveda's\\n\\nout-of-court identification of Santiago, and preclude Sepúlveda\\n\\nfrom identifying Santiago in court.\\n\\n The government opposed the motion, arguing that Santiago\\n\\nhad failed to show that \\\"the identification procedure was\\n\\nimpermissibly suggestive under federal law\\\" and that, in fact, the\\n\\nprocedure was reliable. The government also noted that the Puerto\\n\\nRico Court of Appeals, in reversing the trial court, failed to\\n\\ngive due deference to the trial judge's findings of fact and\\n\\ntherefore misapplied Puerto Rico law. Additionally, the\\n\\ngovernment pointed out that Sepúlveda knew the perpetrators before\\n\\nthe shootout and identified Santiago by his nickname, supporting\\n\\nthe reliability of the identification.\\n\\n On October 4, 2016, without holding a hearing, the\\n\\ndistrict court granted Santiago's \\\"request to suppress\\n\\nidentification.\\\" That order was followed by an opinion entered\\n\\n\\n -6-\\n\\fthe same day. Santiago-Colón, 213 F. Supp. 3d 297. In its opinion,\\n\\nthe district court noted that in Sánchez Valle the U.S. Supreme\\n\\nCourt held that \\\"for purposes of the Double Jeopardy Clause, the\\n\\n[Puerto Rico] and United States governments constitute a single\\n\\nsovereign, in as much [sic] as the former's power to prosecute\\n\\nderives from the latter's.\\\" Id. at 297. The district court\\n\\nconcluded that it \\\"must give the [Puerto Rico] court suppression\\n\\nfindings and judgment preclusive effect\\\" because \\\"[n]ot doing so\\n\\nwould ignore the constitutional reality that indeed [Puerto Rico]\\n\\nand [the] United States are but one sovereign when it comes to\\n\\ncriminally prosecuting individuals.\\\" Id. at 298. It further\\n\\nnoted that, although federal prosecutors \\\"did not participate in\\n\\nthe [Puerto Rico] court criminal proceedings against [Santiago],\\n\\ntheir local counterparts in fact did\\\" and \\\"[t]heir authority to do\\n\\nso ultimately emanates from the United States.\\\" Id. (citing\\n\\nSánchez Valle, 136 S. Ct. at 1863). The district court's order\\n\\nset a pre-trial conference for November 9, 2016 \\\"to discuss if the\\n\\nGovernment ha[d] independent evidence to proceed with its\\n\\nprosecution, or if it will appeal the Court's suppression order.\\\"3\\n\\n On November 10, 2016, the district court held the pre-\\n\\ntrial conference. At the beginning of the conference, the\\n\\n\\n3 That pre-trial conference was later rescheduled for November 10,\\n2016.\\n\\n\\n -7-\\n\\fdistrict court stated that it believed \\\"there[] [was] a basis\\\" for\\n\\nfiling an interlocutory appeal. The government argued that the\\n\\ndistrict court's suppression of Santiago's identification was\\n\\ncontrary to binding First Circuit precedent applying collateral\\n\\nestoppel principles, including Bonilla Romero, 836 F.2d 39, and\\n\\nUnited States v. Pérez-Pérez, 72 F.3d 224 (1st Cir. 1995), and\\n\\nthat Sánchez Valle did not change the law. The district court\\n\\nrejected the government's arguments and clarified that the court's\\n\\ndecision was not based on collateral estoppel, but \\\"on an\\n\\nassumption that it's the same sovereign.\\\" According to the\\n\\ndistrict court, because under Sánchez Valle Puerto Rico and the\\n\\nUnited States are \\\"a single sovereign,\\\" the Puerto Rico court's\\n\\nsuppression findings and judgment have preclusive effect on a\\n\\nsubsequent federal prosecution and bind the district court.4\\n\\n The court then inquired whether the government had\\n\\nindependent evidence to proceed to trial. The government\\n\\nresponded that even though the court had suppressed Sepúlveda's\\n\\nout-of-court identification of Santiago, it \\\"would like to proceed\\n\\nto trial\\\" with the in-court identification, because Sepúlveda knew\\n\\n\\n\\n4 In the district court's words, although the local court's\\ndecision \\\"may be a wrong ruling . . . it's still a ruling that's\\nfinal,\\\" it \\\"binds the [f]ederal [g]overnment,\\\" and precludes\\nrelitigation of the issue in federal court even if the district\\ncourt \\\"disagree[s] with [the ruling].\\\"\\n\\n\\n -8-\\n\\fSantiago prior to the January 13th incident and before he saw the\\n\\nphoto array. The government also indicated that it could use the\\n\\nsecurity video footage allegedly showing Santiago at the crime\\n\\nscene. Santiago responded that he thought the district court had\\n\\nsuppressed both the out-of-court identification (product of the\\n\\nphoto array) as well as any in-court identification because the\\n\\nPuerto Rico Court of Appeals had allegedly suppressed both\\n\\nidentifications. After reviewing again the decision from the\\n\\nPuerto Rico Court of Appeals, the district court concluded that\\n\\nthe Puerto Rico Court of Appeals had suppressed both Sepúlveda's\\n\\nout-of-court and in-court identifications of Santiago, and\\n\\nresolved to do the same. The court further stated that it would\\n\\n\\\"supplement\\\" its suppression order.\\n\\n The district court noted that if the government had no\\n\\nindependent evidence to identify Santiago at trial, the \\\"course to\\n\\nproceed would be for the government to file a notice of appeal,\\\"\\n\\nbecause the issue was \\\"definitely capable of repetition,\\\" would\\n\\n\\\"continue happening,\\\" and was \\\"appealable interlocutorily.\\\"\\n\\nAdditionally, it noted that \\\"[t]his may be the best case to do\\n\\nit.\\\" Santiago agreed that the government \\\"should go up to the\\n\\nFirst Circuit to clarify th[e] issue.\\\"\\n\\n Consistent with its statements during the pre-trial\\n\\nconference, later that day the district court entered an order\\n\\n\\n -9-\\n\\fsupplementing its October 4th order by clarifying that its\\n\\nsuppression order was \\\"based on the single sovereign doctrine and\\n\\nnot on collateral estoppel\\\" and \\\"extend[ed] to both the in-court\\n\\nidentification by . . . Sepúlveda . . . , as well as the photo\\n\\nidentification.\\\" On December 2, 2016, the government filed its\\n\\nnotice of appeal, stating that it was appealing from the order\\n\\nentered on November 10, 2016. On November 15, 2017, the government\\n\\nfiled a certification under 18 U.S.C. § 3731 with the district\\n\\ncourt, in which the United States Attorney certified that \\\"the\\n\\nappeal is not taken for the purpose of delay and that the evidence\\n\\n[suppressed] is a substantial proof of a fact material in the\\n\\nproceeding.\\\"\\n\\n On appeal, the government claims the district court's\\n\\norder suppressing any in-court identification of Santiago as the\\n\\nshooter should be reversed because it is contrary to First Circuit\\n\\nprecedent, which has held that whether suppression of evidence by\\n\\na local court has preclusive effect in a federal proceeding is an\\n\\nissue of collateral estoppel, not double jeopardy. It further\\n\\nclaims that, under collateral estoppel principles, the suppression\\n\\nof the identification evidence was improper because the two\\n\\nprosecuting authorities were not in privity.5\\n\\n\\n5 The government does not appeal the suppression of Sepúlveda's\\nout-of-court identification of Santiago.\\n\\n\\n -10-\\n\\f II. Discussion\\n\\nA. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731\\n Certification Requirement\\n\\n Santiago claims that this court lacks jurisdiction to\\n\\nentertain this appeal because the government filed an untimely\\n\\nnotice of appeal and failed to comply with the certification\\n\\nrequirements under 18 U.S.C. § 3731. We address each procedural\\n\\nchallenge in turn.\\n\\n i. Standard of Review and Applicable Law\\n\\n This court must verify that it has appellate\\n\\njurisdiction before addressing the merits of any appeal. Espinal-\\n\\nDomínguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003).\\n\\n\\\"Jurisdiction is a question of law subject to de novo review.\\\"\\n\\nUnited States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).\\n\\n The Criminal Appeals Act establishes in relevant part\\n\\nthat:\\n\\n An appeal by the United States shall lie to a court of\\n appeals from a decision or order of a district court\\n suppressing or excluding evidence . . ., not made after\\n the defendant has been put in jeopardy and before the\\n verdict or finding on an indictment or information, if\\n the United States attorney certifies to the district\\n court that the appeal is not taken for purpose of delay\\n and that the evidence is a substantial proof of a fact\\n material in the proceeding.\\n\\n . . .\\n\\n The appeal in all such cases shall be taken within thirty\\n days after the decision, judgment or order has been\\n rendered and shall be diligently prosecuted.\\n\\n -11-\\n\\f The provisions of this section shall be liberally\\n construed to effectuate its purposes.\\n\\n18 U.S.C. § 3731.\\n\\n The government is allowed to take an interlocutory\\n\\nappeal from suppression and exclusion orders in certain\\n\\ncircumstances to remedy the \\\"imbalance created by the\\n\\npeculiarities of criminal procedure.\\\" United States v. Watson,\\n\\n386 F.3d 304, 308 (1st Cir. 2004). While a criminal defendant who\\n\\nhad unsuccessfully sought suppression of evidence before trial\\n\\ncould appeal the denial of the suppression if he was convicted,\\n\\ndouble jeopardy principles preclude the government from appealing\\n\\na pre-trial order suppressing evidence in the event of an\\n\\nunfavorable verdict at trial. Id. Because \\\"Congress became\\n\\nconcerned about both this disparity and the lack of uniform\\n\\nstandards of admissibility that resulted from it,\\\" id., it amended\\n\\nthe Criminal Appeals Act in 1968 to allow the government to appeal\\n\\na pre-trial suppression or exclusion order, id. at 308-09. In\\n\\n1970, Congress further amended the Criminal Appeals Act to remedy\\n\\nthe courts' then-narrow interpretation of § 3731 and to include an\\n\\nexplicit \\\"command to construe the statute liberally,\\\" id. at 309,\\n\\nwhich this court has construed \\\"as a cue to put substance ahead of\\n\\nform\\\" in deciding whether it has jurisdiction to entertain an\\n\\nappeal, id. at 310; United States v. Kane, 646 F.2d 4, 7 (1st\\n\\n\\n -12-\\n\\fCir. 1981) (noting that \\\"the liberal construction provision\\\"\\n\\ndictates \\\"a practical, rather than formalistic, application\\\").\\n\\n ii. Timeliness Issue\\n\\n Santiago argues that the government's notice of appeal\\n\\nwas untimely because it was filed more than thirty days after the\\n\\ndistrict court entered its October 4th order. According to\\n\\nSantiago, on October 4, 2016, the district court granted his motion\\n\\nto suppress, which sought to suppress not only Sepúlveda's out-\\n\\nof-court identification of him (the photo array), but also sought\\n\\nto prevent Sepúlveda from identifying him in court. Santiago\\n\\nargues that the government, however, failed to file a notice of\\n\\nappeal, or request clarification or reconsideration of the order,\\n\\nuntil after the thirty-day window provided in 18 U.S.C. § 3731 had\\n\\nexpired.\\n\\n Santiago acknowledges that \\\"when the lower court changes\\n\\nmatters of substance, or resolves a genuine ambiguity\\\" in an\\n\\notherwise appealable order, \\\"the period within which an appeal\\n\\nmust be taken . . . begin[s] to run anew,\\\" see Fed. Trade Comm'n\\n\\nv. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12\\n\\n(1952), but argues that such is not the case here. He contends\\n\\nthat while the government attempts to draw a distinction between\\n\\nthe October 4th and November 10th orders -- characterizing the\\n\\nformer as suppressing only the out-of-court identification and the\\n\\n\\n -13-\\n\\flatter as further suppressing any in-court identification by\\n\\nSepúlveda -- such distinction is inappropriate because the order\\n\\non November 10th did not materially change the October 4th order.\\n\\nThe November 10th order, Santiago insists, merely reiterated that\\n\\nthe prior suppression ruling included both the out-of-court and\\n\\nthe in-court identifications, which does not serve to start the\\n\\nclock anew for appellate purposes.\\n\\n In response, the government argues that the notice of\\n\\nappeal was timely because it was filed within thirty days of the\\n\\nNovember 10th order, which it characterizes as a \\\"'supplement[al]'\\n\\nsuppression order\\\" that \\\"materially amended the original October 4\\n\\norders by suppressing evidence that was not covered by the original\\n\\norders.\\\"\\n\\n The government states that neither the Puerto Rico Court\\n\\nof Appeals's opinion nor the district court's October 4th order\\n\\n\\\"specifically addressed whether Agent Sepúlveda would be\\n\\nprohibited from identifying Santiago\\\" at trial. According to the\\n\\ngovernment, the \\\"ambiguous\\\" language of the Puerto Rico Court of\\n\\nAppeals's opinion and the district court's October 4th order, in\\n\\nconjunction with the district court's simultaneous scheduling of\\n\\na pre-trial conference to discuss whether the government had\\n\\nindependent evidence to proceed with its prosecution, as well as\\n\\nfederal case law suggesting that suppression of an out-of-court\\n\\n\\n -14-\\n\\fidentification by a witness does not necessarily preclude an in-\\n\\ncourt identification by the same witness, led it to believe that\\n\\nonly the photo array evidence had been suppressed. The government\\n\\nsubmits that the October 4th order was so ambiguous that the\\n\\ndistrict court had to re-read the Puerto Rico Court of Appeals's\\n\\nopinion in order to determine whether its October 4th order also\\n\\nencompassed the in-court identification. The government further\\n\\nargues that if the October 4th order had been clear, as Santiago\\n\\nclaims, \\\"it would have been unnecessary for the district court to\\n\\n'issue a supplement[al] order clarifying' its original ruling\\\" and\\n\\nthat the order itself stated that it was a \\\"supplement\\\" to the\\n\\nOctober 4th order, which \\\"extend[ed]\\\" suppression to in-court\\n\\nidentification.\\n\\n We are persuaded by the government's arguments. The\\n\\nOctober 4th order did not specify the scope of the suppression,\\n\\nand the Puerto Rico Court of Appeals's opinion, on which the\\n\\ndistrict court relied, was ambiguous as to whether it also\\n\\nprecluded Sepúlveda from identifying Santiago in court. In fact,\\n\\nthe opinion of the Puerto Rico Court of Appeals gave the impression\\n\\nthat only the photographic lineup identification had been\\n\\nsuppressed.6\\n\\n\\n6 The Puerto Rico Court of Appeals's opinion stated as follows:\\n\\n [P]etitioners filed a Motion to Suppress Identification\\n\\n -15-\\n\\f In addition, as the government contends, suppression of\\n\\na photographic lineup identification does not necessarily require\\n\\nexclusion of an in-court identification provided that the\\n\\nprosecution can \\\"establish by clear and convincing evidence that\\n\\nthe in-court identification[] w[as] based upon observations of the\\n\\nsuspect other than the lineup identification.\\\" Moore v. Illinois,\\n\\n434 U.S. 220, 225-26 (1977) (quoting United States v. Wade,\\n\\n388 U.S. 218, 240 (1967)). Hence, this supports the government's\\n\\nunderstanding that only the out-of-court identification had been\\n\\nsuppressed, and Sepúlveda could identify Santiago in court based\\n\\non his knowledge of Santiago prior to the photo array.\\n\\n Furthermore, as the government argues, the district\\n\\ncourt's scheduling of a pre-trial conference to discuss whether\\n\\nthe government had additional evidence to proceed to trial, as\\n\\nwell as the events that transpired during that pre-trial\\n\\n\\n . . . alleg[ing] that . . . they were identified through\\n photographs the day after the facts . . . [and] . . .\\n that the process was 'severely vitiated' [in] that it\\n did not comply with the provisions of Rule 252.2 of\\n [Puerto Rico] Criminal Procedure Rules. . . . [W]e\\n conclude that the identification that Agent Sepúlveda\\n Rivera made of . . . Santiago . . . and the photographic\\n line up [sic] led by Sergeant Quiles were not trustworthy\\n pursuant to the criteria established by our Supreme\\n Court in Pueblo v. Hernández González. . . . [Thus, the\\n trial court's] resolution is vacated and set aside and\\n in its consequence, the suppression of the\\n identification of petitioners is ordered.\\n\\nApp. at 41, 84, May 18, 2017, No. 16-2509.\\n\\n -16-\\n\\fconference, also support the government's interpretation that the\\n\\nOctober 4th order had not suppressed all of the identification\\n\\nevidence. At the November 10th conference, the parties disputed\\n\\nthe scope of the October 4th suppression order. When the\\n\\ngovernment stated that it believed the order had suppressed the\\n\\nout-of-court identification only, the district court did not\\n\\nclarify that it had also suppressed the in-court identification.\\n\\nInstead, the court decided to hear from defense counsel. In fact,\\n\\neven after defense counsel argued that the October 4th order\\n\\n\\\"clear[ly]\\\" suppressed both identifications, the court stated as\\n\\nfollows:\\n\\n [I]f the government wants to proceed to trial, what I\\n need then is for the government to file a motion and\\n inform what witnesses are going to testify and if they're\\n going to identify him in court or not so the defense can\\n adequately respond. And then I can either -- either\\n I'll grant it or deny it. And if I deny it and basically\\n I'm suppressing everything, then the government can\\n still appeal.\\n\\n The district court then took a brief recess to review\\n\\nthe opinion from the Puerto Rico Court of Appeals in order to\\n\\nascertain the scope of its own suppression order. It was after\\n\\nreviewing again the opinion from the Puerto Rico Court of Appeals\\n\\nthat the district court stated that it would suppress both\\n\\nidentifications. It found that a \\\"supplement[al] order\\n\\nclarifying\\\" its original order was warranted. The court deemed\\n\\nit appropriate to clarify that its ruling was based \\\"on the single\\n\\n -17-\\n\\fsovereign doctrine, not on collateral estoppel,\\\" and that its\\n\\n\\\"suppression ruling would include the identification of Agent\\n\\nSepúlveda of the defendant, as well as his . . . photo . . .\\n\\nidentification.\\\" It is worth noting that the court stated its\\n\\nsuppression ruling \\\"would include,\\\" and not that it \\\"included\\\" or\\n\\n\\\"had included,\\\" the in-court identification. Therefore, the\\n\\ncourt's chosen language supports the government's contention that\\n\\nthe original order did not include the in-court identification.\\n\\nThe court then proceeded to issue a supplemental order clarifying\\n\\nits October 4th order to these effects. See Dkt. No. 70,\\n\\nUnited States v. Santiago-Colón, 15-cv-00396 (\\\"supplement[ing] its\\n\\nruling [of October 4th] . . . to the effect that that the same\\n\\n[was] based on the single sovereign doctrine and not on collateral\\n\\nestoppel\\\" and \\\"hold[ing] that its suppression extends to both the\\n\\nin-court identification by Agent Sepúlveda Rivera, as well as the\\n\\nphoto identification\\\").7\\n\\n Considering the record as a whole, we hold that the\\n\\nNovember 10th order amended or materially changed the October 4th\\n\\norder, which had the effect of restarting the thirty-day clock.\\n\\n\\n\\n7 The court used the language \\\"the Court holds\\\" as if it was\\ndetermining the scope of the suppression for the first time,\\ninstead of using language such as \\\"clarifies,\\\" which would suggest\\nthat the decision had been previously taken. Dkt. No. 70,\\nUnited States v. Santiago-Colón, 15-cv-00396 (emphasis added).\\n\\n\\n -18-\\n\\fThis makes timely the government's notice of appeal of the\\n\\nNovember 10th order. See United States v. Cheal, 389 F.3d 35, 53\\n\\n(1st Cir. 2004) (noting that courts are encouraged \\\"to construe\\n\\nnotices of appeal liberally and examine them in the context of the\\n\\nrecord as a whole\\\" (quoting Chamorro v. Puerto Rican Cars, Inc.,\\n\\n304 F.3d 1, 3 (1st Cir. 2002))).\\n\\n iii. 18 U.S.C. § 3731 Certification Issue\\n\\n Santiago also argues that this court lacks jurisdiction\\n\\nto entertain the interlocutory appeal because the United States\\n\\nAttorney did not timely file a § 3731 certification with the\\n\\ndistrict court certifying that the appeal was not taken to delay\\n\\nthe proceedings and that the evidence suppressed is substantial\\n\\nproof of a material fact. Santiago acknowledges that this court\\n\\nhas not addressed whether certification is a pre-condition to\\n\\nappellate jurisdiction but argues that we should treat it as such.\\n\\nHe further argues that even if we were to treat non-compliance\\n\\nwith the certification requirement as a \\\"filing irregularity\\\"\\n\\ngoverned by Federal Rule of Appellate Procedure 3(a) -- which would\\n\\nleave any appropriate action, including dismissal of the appeal,\\n\\nto the court's sound discretion -- we should not condone the\\n\\ngovernment's \\\"disregard for diligence.\\\"\\n\\n In response, the government acknowledges that it filed\\n\\nthe § 3731 certification belatedly, after Santiago pointed out the\\n\\n\\n -19-\\n\\fgovernment's non-compliance with the certification requirement in\\n\\nhis response brief, and apologizes for the late filing.8 But, the\\n\\ngovernment claims that such late filing does not require dismissal\\n\\nof the appeal.\\n\\n The government notes that \\\"[t]he purpose of the\\n\\ncertification requirement is to ensure that the prosecutor\\n\\ncarefully analyzed the case before deciding to appeal\\\" and that,\\n\\ndespite its belated filing of the § 3731 certification, the\\n\\ngovernment did comply with the substance of § 3731 before it filed\\n\\nits notice of appeal. It points out that the Solicitor General,\\n\\nwho decides whether the government will seek appellate review in\\n\\na given case, \\\"considers a variety of factors, such as the limited\\n\\nresources of the government and the crowded dockets of the courts,\\n\\nbefore authorizing an appeal,\\\" and that this deliberative process\\n\\nwas followed here, when the Acting Solicitor General approved\\n\\nfiling an appeal on April 19, 2017. It further points out that\\n\\nthe Criminal Division of the United States Attorney's Office also\\n\\n\\\"thorough[ly] review[ed]\\\" this case before the government decided\\n\\nto file its notice of appeal.\\n\\n\\n8 The government explains that at the time it filed its notice of\\nappeal, counsel of record was a Special Assistant United States\\nAttorney (\\\"SAUSA\\\") on detail from the Puerto Rico Department of\\nJustice who was inexperienced in federal appellate procedures, and\\nthe government first became aware of the missing certification\\nwhen Santiago raised the issue in his response brief.\\n\\n\\n -20-\\n\\f The government contends that most appellate courts that\\n\\nhave addressed the issue have not treated the certification as a\\n\\njurisdictional requirement. Rather, \\\"[t]hey have held that\\n\\nwhether dismissal is an appropriate remedy is a matter that falls\\n\\nwithin the court's discretion.\\\"\\n\\n Furthermore, the government points us to United States\\n\\nv. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), in which this court\\n\\nrejected the argument that dismissal was warranted because the\\n\\nUnited States Attorney had not personally signed the § 3731\\n\\ncertification filed with the district court. It notes that in\\n\\nCrespo-Ríos the court gave weight to the deliberative process the\\n\\ngovernment underwent before filing its appeal (including review by\\n\\nthe United States Attorney and the Solicitor General), as well as\\n\\nto Congress's mandate that § 3731 be construed liberally. The\\n\\ngovernment argues that both considerations are present in this\\n\\ncase and thus urges us to consider the appeal on its merits.\\n\\n It is uncontested that the government filed its § 3731\\n\\ncertification belatedly. However, in light of Congress's mandate\\n\\nthat 18 U.S.C. § 3731 be \\\"liberally construed to effectuate its\\n\\npurposes,\\\" we decline Santiago's invitation to treat the\\n\\ncertification as a jurisdictional requirement. Instead, we join\\n\\nmost of the circuits that have addressed the issue and leave it to\\n\\nthe court's sound discretion to determine whether dismissal of an\\n\\n\\n -21-\\n\\fappeal for failure to comply with the § 3731 certification\\n\\nrequirement is appropriate in a particular case. See, e.g.,\\n\\nUnited States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per\\n\\ncuriam) (refusing to treat § 3731's certification requirement as\\n\\njurisdictional and exercising appellate jurisdiction even though\\n\\nthe United States Attorney's certification was filed after the\\n\\ndefendant-appellee had already filed his brief, because the\\n\\nSolicitor General had authorized the appeal and there seemed to be\\n\\nno prejudice resulting from the belated filing); see also\\n\\nUnited States v. McNeill, 484 F.3d 301, 309 (4th Cir. 2007) (noting\\n\\nthat failure to file a timely § 3731 certification does not deprive\\n\\nthe court of jurisdiction over the appeal, but \\\"is a ground for\\n\\nthe court of appeals to act as it considers appropriate\\\") (internal\\n\\nquotation marks and citation omitted); United States v. Smith,\\n\\n263 F.3d 571, 578 (6th Cir. 2001) (treating a failure to timely\\n\\nfile a § 3731 as \\\"an irregularity in perfecting [an] appeal\\\" and\\n\\nnoting that its \\\"sister circuits have consistently held that the\\n\\ndelayed filing of a section 3731 certificate, although disfavored,\\n\\ndoes not divest appellate courts of their jurisdiction\\\")\\n\\n(collecting cases).\\n\\n Here, we find that dismissal of the appeal is\\n\\nunwarranted. This case presents an important issue that, as the\\n\\ndistrict court acknowledged, is \\\"definitely capable of repetition\\\"\\n\\n\\n -22-\\n\\fand would \\\"continue happening.\\\" In fact, the United States\\n\\nDistrict Court for the District of Puerto Rico is already split as\\n\\nto how to resolve this issue of law.9 Moreover, this case presents\\n\\na question of law and, as the district court stated, \\\"[t]his may\\n\\nbe the best case to [decide the issue],\\\" which has been fully\\n\\nbriefed. We note that although the government failed to file the\\n\\nrequired certification at the time it filed its notice of appeal,\\n\\nit complied with the substance and purpose of the certification\\n\\nrequirement. As the government explained, before it filed its\\n\\nbrief, the government engaged in the deliberative process to\\n\\ndetermine whether the issue should be taken on appeal. Compliance\\n\\nwith the essence of this deliberative process, as well as the\\n\\nmandate to construe the statute liberally, were determinative\\n\\nfactors in Crespo-Ríos. 645 F.3d at 44 n.6. Furthermore, the\\n\\ngovernment's failure to timely file the § 3731 certification has\\n\\nin no way prejudiced Santiago.10 See Smith, 263 F.3d at 578 (noting\\n\\n\\n9 In United States v. Rosado-Cancel, the district court rejected\\nthe defendant's argument that federal firearms charges should be\\ndismissed under Sánchez-Valle because a Puerto Rico court had\\nalready dismissed parallel Puerto Rico firearms charges for lack\\nof probable cause. No. 13-731, 2017 WL 543199, at *7 (D.P.R.\\nFeb. 10, 2017) (Domínguez, J.). Relying on our holding in Bonilla\\nRomero, the district court held that \\\"any issue preclusion argument\\n. . . would . . . fail on lack-of-privity grounds.\\\" Id.\\n10 Santiago claims to have been prejudiced by the government's\\nbelated filing of its § 3731 certification because he has remained\\nimprisoned during the pendency of the government's appeal. He has\\nfailed, however, to explain how his situation would have been\\n\\n -23-\\n\\fthat \\\"[i]n exercising their discretion, courts typically consider\\n\\na variety of factors, including: when the certificate was filed;\\n\\nthe reason for the failure to timely file it; whether the\\n\\ngovernment did in fact engage in a conscientious pre-appeal\\n\\nanalysis; whether the government acknowledges that the\\n\\ncertification requirement should be taken seriously; any delay or\\n\\nprejudice to the defendant; whether the appeal raises important\\n\\nlegal issues needing appellate clarification; and whether the\\n\\nappeal should be heard in the interest of justice, or for any other\\n\\nsignificant reason\\\") (internal quotation marks omitted).\\n\\n Finding no procedural issue that divests us of\\n\\njurisdiction, we now turn to the merits of this appeal.\\n\\nB. Suppression Issue\\n\\n The government argues that the district court's\\n\\nconclusion -- that because Puerto Rico and the United States are\\n\\na single sovereign for purposes of the Double Jeopardy Clause,\\n\\nsuppression rulings by Puerto Rico courts are binding in federal\\n\\nprosecutions -- is unsupported by Sánchez Valle and contrary to\\n\\nlongstanding First Circuit precedent.\\n\\n\\n\\n\\ndifferent had the government timely complied with the\\ncertification requirement. Thus, Santiago has not shown any\\nprejudice stemming from the belated filing.\\n\\n\\n -24-\\n\\f According to the government, Sánchez Valle does not hold\\n\\nthat Puerto Rico and the United States are the same for purposes\\n\\nof all criminal law enforcement and procedure. Instead, it\\n\\nnarrowly held that they are a single sovereign for double jeopardy\\n\\npurposes, which the government posits has no bearing in this case.\\n\\nThe government argues that the doctrine of collateral estoppel is\\n\\ncontrolling, as held in \\\"two precedential decisions\\\" which it\\n\\nclaims are still binding: Bonilla Romero, 836 F.2d at 42-43, and\\n\\nPérez-Pérez, 72 F.3d at 226. Under a collateral estoppel\\n\\nanalysis, the government urges us to find that the district court\\n\\nwas not collaterally estopped by the local court's suppression\\n\\ndecision because the United States was neither a party, nor in\\n\\nprivity with a party, at the local suppression proceedings.\\n\\n Santiago agrees with the government that \\\"the doctrine\\n\\nof collateral estoppel controls this case rather than double\\n\\njeopardy.\\\" He notes that the district court \\\"conflate[d] the\\n\\ntwo,\\\" but argues that its ruling is nevertheless \\\"clear.\\\"\\n\\nSantiago further argues that Sánchez Valle confirmed that Puerto\\n\\nRico \\\"has what amounts to an agency relationship with the federal\\n\\ngovernment.\\\" Yet, because Bonilla Romero predates Sánchez Valle,\\n\\nthe former \\\"did not fully confront Puerto Rico's agency\\n\\nrelationship with the United States\\\" and thus should not be\\n\\ncontrolling. Santiago submits that, in any event, even if Bonilla\\n\\n\\n -25-\\n\\fRomero is still good law, it is \\\"factually and legally\\n\\ndistinguishable\\\" from his case.\\n\\n In Bonilla Romero, this court rejected Santiago's\\n\\ncontention that suppression of evidence by a Puerto Rico court in\\n\\na local prosecution necessarily requires suppression of the same\\n\\nevidence in a subsequent federal prosecution. 836 F.2d at 41-45.\\n\\nThere, Puerto Rico officers had seized two firearms and drugs from\\n\\nthe car and house of the defendant, who was charged with weapons\\n\\nand drug offenses under Puerto Rico law. Id. at 41. Months\\n\\nlater, based on that same evidence, a grand jury returned an\\n\\nindictment charging the defendant with federal crimes. Id. After\\n\\nholding a hearing, the Puerto Rico trial court granted the\\n\\ndefendant's motion to suppress because the local judge \\\"seriously\\n\\ndoubted the veracity\\\" of the officers' testimony. Id. The local\\n\\nprosecution was subsequently dismissed. Id. The defendant then\\n\\nsought suppression of the same evidence in the district court.\\n\\nId. The district court \\\"held that the federal court was not bound\\n\\nby the decision of the local court to suppress the evidence\\\" and\\n\\nultimately denied the defendant's motion to suppress. Id. After\\n\\nthe defendant was convicted on all federal counts, he appealed the\\n\\ndenial of his motion to suppress, arguing, inter alia, that\\n\\nallowing the government to relitigate the suppression issue\\n\\n\\n\\n\\n -26-\\n\\fviolated the Double Jeopardy Clause as well as collateral estoppel\\n\\nprinciples. Id.\\n\\n We rejected both challenges. First, regarding the\\n\\ndouble jeopardy challenge, we noted that \\\"jeopardy 'attaches' when\\n\\na trial commences; that is, when a jury is sworn or empanelled or,\\n\\nin a bench trial, when the judge begins to hear evidence.\\\" Id.\\n\\nat 42 (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26\\n\\n(1980)). Because \\\"jeopardy did not attach as a result of the\\n\\nsuppression of evidence ordered . . . by the Puerto Rico . . .\\n\\n[c]ourt[,] and the subsequent dismissal of charges under Puerto\\n\\nRico law,\\\" the litigation of the suppression of evidence issue in\\n\\nfederal court did not violate the defendant's rights under the\\n\\nDouble Jeopardy Clause. Id.\\n\\n Second, assuming without deciding that the doctrine of\\n\\ncollateral estoppel applied even when jeopardy had not attached,11\\n\\nwe rejected the defendant's contention that \\\"relitigation of the\\n\\n\\n11 As in Bonilla Romero, this appeal does not require us to decide\\nwhether collateral estoppel is applicable in criminal proceedings\\nregardless of whether jeopardy has attached. See Bonilla Romero,\\n836 F.2d at 43. Because both parties urge us to apply the doctrine\\nof collateral estoppel, and because we would reach the same result\\nirrespective of whether the doctrine applies, we assume that the\\ncollateral estoppel doctrine is applicable regardless of whether\\njeopardy has attached. We further note that, although the\\ngovernment stated at oral argument that the Supreme Court seems to\\nbe moving away from applying collateral estoppel in criminal cases,\\nthe parties did not brief the issue and, instead, both assumed\\nthat the collateral estoppel doctrine remains applicable.\\n\\n\\n -27-\\n\\fsuppression was barred by the principle of collateral estoppel\\\" in\\n\\nthat case. Id. at 42-44. We noted that the doctrine of collateral\\n\\nestoppel requires, inter alia, \\\"that the party to be precluded\\n\\nfrom relitigating an issue decided in a previous litigation . . .\\n\\neither [had been] a party or [had been] in privity with a party to\\n\\nthat prior litigation,\\\" and concluded that said requirement was\\n\\nnot satisfied in that case because \\\"the federal prosecutors were\\n\\nneither a party, nor in privity with a party, to the suppression\\n\\nhearing in the Puerto Rico Superior Court.\\\"12 Id. at 43. We\\n\\nclarified that \\\"the source of authority of two government entities\\n\\nis not dispositive of whether they are in privity.\\\" Id. at 43.\\n\\nThus, \\\"Puerto Rico's sovereignty status as a United States\\n\\nterritory\\\" has no bearing on the determination of whether federal\\n\\nprosecutors would be bound by a prior suppression of the same\\n\\nevidence by a Puerto Rico court.13 Id. at 44. Instead, \\\"we must\\n\\n\\n12 We found that there was no evidence that federal prosecutors\\nwere involved in the local prosecution or that they provided\\nassistance or advice to local authorities. Id. at 44. We further\\nnoted that \\\"[t]he initial suppression hearing concerned purely\\nlocal charges over which the federal enforcement officials had no\\nauthority and thus no interest,\\\" and, accordingly, \\\"[f]ederal\\nprosecutors had no reason to believe that a Puerto Rico Superior\\nCourt judge would be deciding any matters affecting a federal\\nprosecution.\\\" Id.\\n13 Prior to Bonilla Romero, this court had addressed Puerto Rico's\\nsovereignty status as a United States territory in United States\\nv. López Andino, where we held that Puerto Rico was a \\\"separate\\nsovereign for the limited purpose of the double jeopardy clause.\\\"\\n831 F.2d 1164, 1168 (1st Cir. 1987), overruled by Sánchez Valle,\\n\\n -28-\\n\\fdetermine whether there was a close or significant relationship\\n\\nbetween the federal and Puerto Rico prosecutors during the local\\n\\nsuppression hearing or whether the federal authorities controlled\\n\\nor actively participated in that hearing such that their interests\\n\\nin enforcing federal law were sufficiently represented.\\\" Id.\\n\\n In Pérez-Pérez, we reiterated Bonilla Romero's holding\\n\\nthat application of the doctrine of collateral estoppel in criminal\\n\\ncases requires that \\\"the party to be precluded . . . have been the\\n\\nsame as, or in privity with, the party who lost on that issue in\\n\\nthe prior litigation.\\\" 72 F.3d at 226 (citing Bonilla Romero, 836\\n\\nF.2d at 42-44). We noted that Bonilla Romero had already rejected\\n\\nthe defendant's argument that if the United States and Puerto Rico\\n\\nwere considered a \\\"single sovereign\\\" for double jeopardy purposes,\\n\\nthen they were also in privity under collateral estoppel\\n\\nprinciples. Id.\\n\\n Bonilla Romero directly addresses the issue presently\\n\\nbefore us. The district court, however, found that it is no longer\\n\\ngood law in light of Sánchez Valle. It held that because under\\n\\nSánchez Valle Puerto Rico and the United States are considered\\n\\n\\\"one sovereign when it comes to criminally prosecuting\\n\\n\\n136 S. Ct. at 1868. In Bonilla Romero, we noted that there was\\n\\\"extensive argument[]\\\" over that conclusion, including\\ndisagreement among members of this court. 836 F.2d at 42 n.2, 44\\nn.4.\\n\\n\\n -29-\\n\\findividuals,\\\" it \\\"must give the [Puerto Rico] court suppression\\n\\nfindings and judgment preclusive effect\\\" even when federal\\n\\nprosecutors \\\"did not participate in the [Puerto Rico] court\\n\\ncriminal proceedings against Santiago.\\\" We disagree.\\n\\n Sánchez Valle is a double jeopardy case. The Double\\n\\nJeopardy Clause of the Fifth Amendment protects an individual from\\n\\nbeing \\\"twice put in jeopardy of life or limb\\\" for the same offense,\\n\\nU.S. Const. amend. V., if the prosecutions are brought by the same\\n\\nsovereign, Sánchez Valle, 136 S. Ct. at 1870. In Sánchez Valle,\\n\\nthe Supreme Court faced the issue of whether Puerto Rico and the\\n\\nUnited States were the same sovereign for purposes of the Double\\n\\nJeopardy Clause, which would in turn determine whether the federal\\n\\ngovernment and Puerto Rico were barred \\\"from successively\\n\\nprosecuting a defendant on like charges for the same conduct.\\\"\\n\\nId. To determine whether Puerto Rico and the United States were\\n\\nthe same or different sovereigns for double jeopardy purposes, the\\n\\ncourt performed a \\\"historical, not functional,\\\" inquiry, id. at\\n\\n1871, looking only to \\\"whether the prosecutorial powers of the two\\n\\njurisdictions ha[d] independent origins,\\\" id. (citing United\\n\\nStates v. Wheeler, 435 U.S. 313, 320 (1978)).14 It held that they\\n\\n\\n14 The Court specifically stated that \\\"the 'extent of control'\\nthat 'one prosecuting authority [wields] over the other'\\\" is\\nirrelevant. Sánchez Valle, 136 S. Ct. at 1870 (alteration in\\noriginal).\\n\\n\\n -30-\\n\\fdid not, because \\\"the oldest roots of Puerto Rico's power to\\n\\nprosecute lie in federal soil,\\\" id. at 1868, inasmuch as \\\"Congress\\n\\nconferred the authority to create the Puerto Rico Constitution,\\n\\nwhich in turn confers the authority to bring criminal charges,\\\"\\n\\nid. at 1876. Because the prosecutorial authority of both the\\n\\nfederal government and Puerto Rico emanates from a single source\\n\\n-- Congress -- the two are considered a single sovereign for double\\n\\njeopardy purposes and \\\"the two governments cannot 'twice put' [an\\n\\nindividual] 'in jeopardy' for the 'same offence.'\\\" Id. at 1875-77.\\n\\n There is no doubt that double jeopardy concerns are not\\n\\nimplicated in this case. Santiago's local charges were dismissed\\n\\nbefore trial, and thus jeopardy never attached in the local\\n\\ncourts.15 Santiago concedes as much. The district court itself\\n\\nacknowledged that Sánchez Valle is a case about double jeopardy,\\n\\nbut stated that it would \\\"extend Sánchez Valle to the suppression\\n\\ncontext . . . based on the fact that [Puerto Rico and the United\\n\\nStates are] a single sovereign.\\\" According to the district court,\\n\\nalthough there is no indication in Sánchez Valle that the Supreme\\n\\n\\n\\n15 Furthermore, the local and federal charges were not for the\\nsame offenses. See Brown v. Ohio, 432 U.S. 161, 165 (1977) (\\\"The\\nDouble Jeopardy Clause 'protects against a second prosecution for\\nthe same offense after acquittal. It protects against a second\\nprosecution for the same offense after conviction. And it\\nprotects against multiple punishments for the same offense.'\\\"\\n(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))).\\n\\n\\n -31-\\n\\fCourt intended to extend its analysis of the \\\"notion to\\n\\nsovereignty\\\" outside of the double jeopardy context, it did not\\n\\npreclude it either. The district court's holding, however, runs\\n\\nhead-on into the law of the circuit rule.\\n\\n \\\"The law of the circuit rule (a branch of the stare\\n\\ndecisis doctrine) holds that 'newly constituted panels in a multi-\\n\\npanel circuit court are bound by prior panel decisions that are\\n\\nclosely on point.'\\\" United States v. Wurie, 867 F.3d 28, 34 (1st\\n\\nCir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co.,\\n\\n612 F.3d 25, 33 (1st Cir. 2010)). Exceptions to this rule are\\n\\n\\\"extremely narrow and their incidence is hen's-teeth-rare.\\\"\\n\\nSan Juan Cable LLC, 612 F.3d at 33. \\\"Such exceptions come into\\n\\nplay only when the holding of the prior panel is 'contradicted by\\n\\ncontrolling authority, subsequently announced (say, a decision of\\n\\nthe authoring court en banc, a Supreme Court opinion directly on\\n\\npoint, or a legislative overruling).'\\\" Id. (quoting United States\\n\\nv. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)). \\\"An even less\\n\\ncommon exception has been recognized in those 'rare instances in\\n\\nwhich authority that postdates the original decision, although not\\n\\ndirectly controlling, nevertheless offers a sound reason for\\n\\nbelieving that the former panel, in light of fresh developments,\\n\\nwould change its collective mind.'\\\" Wurie, 867 F.3d at 34 (quoting\\n\\nRodríguez, 527 F.3d at 225).\\n\\n\\n -32-\\n\\f Here, there has been no en banc decision from this court\\n\\ncontradicting our holding in Bonilla Romero. There has also been\\n\\nno statutory overruling. Nor is there a Supreme Court opinion\\n\\ndirectly on point contradicting our precedent. We are thus left\\n\\nto consider the only remaining exception to the law of the circuit\\n\\nrule -- whether Sánchez Valle, although not directly controlling,\\n\\noffers a sound reason for believing that the Bonilla Romero panel\\n\\nwould change its collective mind. We find that it does not.\\n\\n Sánchez Valle, which had nothing to do with collateral\\n\\nestoppel, and where the Supreme Court emphasized the narrowness of\\n\\nits holding, held that Puerto Rico and the United States are a\\n\\nsingle sovereign for purposes of the Double Jeopardy Clause because\\n\\nthe source of authority of both prosecutorial powers derive from\\n\\nthe same source. Although Puerto Rico and the United States had\\n\\nnot been considered a single sovereign in the context of a criminal\\n\\nproceeding at the time that Bonilla Romero and Pérez-Pérez were\\n\\ndecided, this court nevertheless considered in Bonilla Romero the\\n\\npossible effect of deeming Puerto Rico and the United States a\\n\\nsingle sovereign and rejected that the \\\"source of authority of\\n\\n[the] two governmental entities\\\" could be \\\"dispositive of whether\\n\\nthey are in privity.\\\" Bonilla Romero, 836 F.2d at 43.\\n\\n We held, both in Bonilla Romero and in Pérez-Pérez, that\\n\\nPuerto Rico's sovereign status as a United States territory \\\"does\\n\\n\\n -33-\\n\\fnot determine whether the federal prosecutors are bound by a\\n\\npretrial suppression order issued by a Puerto Rico court.\\\"\\n\\nBonilla Romero, 836 F.2d at 44; see also Pérez-Pérez, 72 F.3d at\\n\\n226 (noting that Bonilla Romero rejected that finding that Puerto\\n\\nRico and the United States are a \\\"single sovereign\\\" \\\"establishes\\n\\nan identity between the two governments\\\"). Instead, what\\n\\ndetermines whether collateral estoppel is applicable is whether\\n\\n\\\"the party to be precluded from relitigating an issue decided in\\n\\na previous litigation was either a party or in privity with a party\\n\\nto that prior litigation.\\\" Bonilla Romero, 836 F.2d at 43.\\n\\nBecause at the time of Bonilla Romero and Pérez-Pérez we considered\\n\\nthe possibility that Puerto Rico and the United States could be\\n\\ndeemed a single sovereign, and nonetheless rejected that a finding\\n\\nof single sovereignty would affect our analysis of the issue, we\\n\\nfind no sound reason to believe that the Bonilla Romero panel would\\n\\nchange its collective mind in light of Sánchez Valle.\\n\\nAccordingly, we conclude that Bonilla Romero is still good law.\\n\\n Santiago, however, urges us to find his case\\n\\ndistinguishable from Bonilla Romero, arguing that: (1) unlike in\\n\\nhis case, the local decision suppressing the evidence in\\n\\nBonilla Romero was not \\\"a final decision from the highest court in\\n\\nPuerto Rico\\\"; (2) the district court in Bonilla Romero had held a\\n\\nsuppression hearing before the local court entered its order\\n\\n\\n -34-\\n\\fsuppressing the evidence in the local proceedings; (3) it is\\n\\n\\\"unclear from the record in Bonilla Romero whether the [local]\\n\\ncourt applied relevant federal law in its order granting the motion\\n\\nto suppress\\\"; and, (4) because Bonilla Romero was decided shortly\\n\\nafter López Andino, 831 F.2d at 1164, we can presume that\\n\\nLópez Andino's holding \\\"permeated\\\" Bonilla Romero's rationale; yet\\n\\nthat rationale no longer stands on firm ground after Sánchez Valle.\\n\\nWe find these arguments unpersuasive. Nothing in Bonilla Romero\\n\\nsuggests that the first three factors played any role in this\\n\\ncourt's analysis.16 Santiago's last alleged distinction fares no\\n\\nbetter in light of Bonilla Romero's explicit statement that \\\"the\\n\\nsource of authority of the two government entities\\\" was also\\n\\nirrelevant to the analysis. Bonilla Romero, 836 F.2d at 43-44.\\n\\nAccordingly, we do not find Santiago's case distinguishable from\\n\\nBonilla Romero.\\n\\n Applying our on-point precedent, we conclude that the\\n\\ndistrict court erred when it deemed itself bound by the Puerto\\n\\n\\n16 Furthermore, Santiago's argument that his case is\\ndistinguishable from Bonilla Romero because that case did not\\ninvolve \\\"a final decision from the highest court in Puerto Rico\\\"\\nis misleading. The local decision suppressing the identification\\nevidence in Santiago's local case, although final, was not a\\ndecision from the highest court in Puerto Rico. In fact, the\\nPuerto Rico Supreme Court declined to intervene in the case. Thus,\\nit was a final decision from the local intermediate court. In any\\nevent, how high the case went in the local courts is not relevant\\nto whether there was privity between the prosecuting authorities.\\n\\n\\n -35-\\n\\fRico Court of Appeals's decision to suppress the identification\\n\\nevidence without analyzing whether the requirements of collateral\\n\\nestoppel were satisfied. See id.; see also Pérez-Pérez, 75 F.3d\\n\\nat 226. We note that the district court went to great lengths to\\n\\nclarify that it was not ruling on collateral estoppel grounds, but\\n\\nthat was precisely the analysis that it should have applied. The\\n\\ndistrict court should have analyzed whether the federal prosecutor\\n\\nwas in privity with the local prosecutors that participated in the\\n\\nlocal suppression proceedings. It erred in failing to do so.\\n\\n As his final plea, Santiago urges us to find that the\\n\\ngovernment is collaterally estopped from litigating the\\n\\nsuppression issue in the district court. He argues that, although\\n\\nthe federal prosecution was not a party, it was in privity with\\n\\nthe local prosecution when the latter litigated the suppression\\n\\nissue in Puerto Rico courts. Because the parties do not dispute\\n\\nthe facts on which the privity analysis hinges, we proceed to\\n\\nanalyze the issue. See Bonilla Romero, 836 F.2d at 43-44 (analyzing\\n\\nthe privity issue in the first instance).\\n\\n Santiago posits that the federal prosecution was in\\n\\nprivity with the local prosecution due to the relationship between\\n\\nlocal and federal prosecutors. He claims that the federal\\n\\nprosecution was involved in his local proceedings because the\\n\\nevents of January 13 constituted a violation of his federal\\n\\n\\n -36-\\n\\fprobation. In support of this assertion, he cites to a filing by\\n\\nthe SAUSA then assigned to the federal case, which stated, \\\"the\\n\\nUnited States has been in contact and coordination with the victim\\n\\nof the attempted murder charges and with the Puerto Rico Police\\n\\nDepartment agent who has conducted the investigation into the\\n\\nalleged crime.\\\"17 He further contends that the SAUSA then assigned\\n\\nto the federal prosecution was on detail from the Puerto Rico\\n\\nDepartment of Justice, and that the victim (Sepúlveda) and the\\n\\ninvestigating officer (Quiles) involved in the local prosecution\\n\\n\\\"were backbone[s] of the federal prosecution.\\\" In addition,\\n\\nSantiago submits that the \\\"charging structure . . . also supports\\n\\na finding of strategic cooperation between federal and local\\n\\nprosecutors.\\\" In sum, Santiago argues that because \\\"[local] and\\n\\nfederal prosecutors -- two hands of the same sovereign --\\n\\nsimultaneously worked two prosecutions involving the same facts,\\n\\nthe same witnesses, and the same law[,] [t]heir legal relationship\\n\\nand actions support[] a finding of privity.\\\"\\n\\n We find Santiago's arguments unpersuasive. Although\\n\\nSantiago argues that Puerto Rico has \\\"what amounts to an agency\\n\\nrelationship\\\" with the United States, Bonilla Romero is clear that\\n\\n\\n17 This quote, taken from the government's motion for an extension\\nof time to respond to Santiago's motion to suppress evidence, does\\nnot indicate that the SAUSA had been in contact or coordination\\nwith state prosecutors.\\n\\n\\n -37-\\n\\fPuerto Rico's relationship with the United States \\\"is not\\n\\ndispositive of whether they are in privity.\\\" Bonilla Romero,\\n\\n836 F.2d at 43. Furthermore, the district court explicitly found\\n\\nthat the federal prosecutor did not participate in the local\\n\\nproceedings against Santiago, and Santiago failed to show that\\n\\nthis factual finding was erroneous, much less clearly erroneous.\\n\\nSee United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir.\\n\\n2014) (noting that on appeal from a district court's suppression\\n\\nruling, we review factual findings for clear error). Nor does the\\n\\nrecord support Santiago's contention that the federal prosecution\\n\\ncontrolled or was involved in the Commonwealth proceedings, which\\n\\n\\\"concerned purely local charges over which the federal enforcement\\n\\nofficials had no authority and thus no interest.\\\" Bonilla Romero,\\n\\n936 F.2d at 44.\\n\\n Although shortly after the shootout a United States\\n\\nProbation Officer filed a motion notifying the district court that\\n\\nhe had been in contact with the victim and the investigating\\n\\nofficer, the motion does not state or imply that a federal\\n\\nprosecutor (as opposed to a United States Probation Officer) had\\n\\nbeen in contact or coordination with state prosecutors. See id.\\n\\nat 43 (\\\"In this case, the requirement was not satisfied since the\\n\\nfederal prosecutors were neither a party, nor in privity with a\\n\\nparty, to the suppression hearing in the Puerto Rico Superior\\n\\n\\n -38-\\n\\fCourt.\\\") (emphasis added). It was not until five months after the\\n\\nlocal suppression hearing took place that a federal prosecutor\\n\\nentered an appearance in Santiago's federal probation revocation\\n\\nproceedings. 18 In addition, although the federal prosecutor\\n\\nassigned to his case was a SAUSA on detail from the Puerto Rico\\n\\nDepartment of Justice, Santiago has offered no evidence that she\\n\\nwas involved in the local suppression proceedings, that she\\n\\nassisted or gave advice to local authorities, or even discussed\\n\\nthe matter with them. Moreover, this court has clarified that\\n\\n\\\"the appointment of a state prosecutor as a special federal\\n\\nprosecutor, subsequent to the state court action, 'does not\\n\\nretroactively make the federal government a party to an earlier\\n\\nstate court proceeding.'\\\" United States v. Charles, 213 F.3d 10,\\n\\n21 (1st Cir. 2000) (quoting United States v. Safari, 849 F.2d 891,\\n\\n893 (4th Cir. 1988)).\\n\\n We also find unpersuasive Santiago's argument that\\n\\nprivity can be found because both prosecutions involve the same\\n\\nfacts, witnesses (including the victim and the investigating\\n\\nofficer), or law. Involvement of the same victim and investigating\\n\\nofficer in two prosecutions is to be expected where local and\\n\\n\\n18 It is understandable that the federal prosecutor would be in\\ncontact with the victim and the agent conducting the investigation\\nbecause they would presumably be government witnesses at the\\nrevocation hearing in federal court.\\n\\n\\n -39-\\n\\ffederal charges are brought for the same underlying events, even\\n\\nif the local and federal prosecutions are for different offenses\\n\\nwith different elements. In fact, the federal and local\\n\\nprosecutions in Bonilla Romero involved at least the same facts\\n\\nand witnesses, yet this court found no privity between the\\n\\nprosecuting authorities. Bonilla Romero, 836 F.2d at 41, 44.\\n\\nFinally, contrary to Santiago's contention, the timing of the\\n\\nevents -- where federal charges were brought before the local case\\n\\nwas dismissed, and local charges were refiled after Santiago's\\n\\nfederal case was already pending -- suggests that there was no\\n\\ncoordination between the federal and local prosecutions.\\n\\n In sum, what determines if privity exists is whether\\n\\nthere was \\\"a close or significant relationship between the federal\\n\\nand Puerto Rico prosecutors during the local suppression\\n\\n[proceedings] or whether the federal authorities controlled or\\n\\nactively participated in [those proceedings] such that their\\n\\ninterests in enforcing federal law were sufficiently represented.\\\"\\n\\nId. at 44. Because nothing suggests this happened in Santiago's\\n\\ncase, we find that there was no privity between the two prosecuting\\n\\nauthorities and, thus, collateral estoppel is not applicable.\\n\\n III. Conclusion\\n\\n For the foregoing reasons, we reverse and vacate the\\n\\ndistrict court's order and find that, because there was no privity\\n\\n\\n -40-\\n\\fbetween the two prosecuting authorities, collateral estoppel is\\n\\ninapplicable. We remand the case to the district court for\\n\\nproceedings consistent with this decision.\\n\\n Reversed, Vacated and Remanded.\\n\\n\\n\\n\\n -41-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4372439/\", \"author_raw\": \"TORRUELLA, Circuit Judge\"}]}"},"judge1":{"kind":"string","value":"TORRUELLA"},"judge2":{"kind":"string","value":"THOMPSON"},"judge3":{"kind":"string","value":"KAYATTA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4595186/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellant, v. David SANTIAGO-COLÓN, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 16-2509\n\n UNITED STATES OF AMERICA,\n\n Appellant,\n\n v.\n\n DAVID SANTIAGO-COLÓN,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n [Hon. Gustavo A. Gelpí, U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n John P. Taddei, Attorney, Appellate Section Criminal\nDivision, U.S. Department of Justice, with whom Kenneth A. Blanco,\nActing Assistant Attorney General, Trevor N. McFadden, Acting\nPrincipal Deputy Assistant Attorney General, Rosa E. Rodríguez-\nVélez, United States Attorney, and Mariana E. Bauzá-Almonte,\nAssistant United States Attorney, Chief, Appellate Section, were\non brief, for appellant.\n Andrew S. McCutcheon, Assistant Federal Public Defender, with\nwhom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric\nAlexander Vos, Federal Public Defender, and Vivianne M. Marrero-\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\nSection, were on brief, for appellee.\n\n\n February 28, 2019\n\f TORRUELLA, Circuit Judge. The United States appeals the\n\ndistrict court's order granting David Santiago-Colón's\n\n(\"Santiago\") motion to suppress identification evidence, giving\n\npreclusive effect to a Puerto Rico Court of Appeals's order\n\nsuppressing this same evidence in a local proceeding for different\n\noffenses. According to the district court, inasmuch as Puerto\n\nRico and the United States are a single sovereign for purposes of\n\nthe Double Jeopardy Clause, Puerto Rico v. Sánchez Valle,\n\n136 S. Ct. 1863, 1869-77 (2016), it was bound by the local court's\n\nfinal judgment suppressing identification evidence, even though\n\nfederal prosecutors \"did not participate in the [Puerto Rico] court\n\ncriminal proceedings against Santiago.\" United States v.\n\nSantiago-Colón, 213 F. Supp. 3d 297, 298 (D.P.R. 2016). In so\n\nruling, the district court deviated from our on-point precedent\n\nholding that suppression of evidence by a Puerto Rico court does\n\nnot require a federal court to suppress that same evidence unless\n\nfederal prosecutors were a party, or were in privity with a party,\n\nto the suppression hearing in the Puerto Rico court, United States\n\nv. Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987), which was\n\nnot the case here. Sánchez Valle, moreover, did not change the\n\nlaw in this area. Accordingly, we reverse and vacate the district\n\ncourt's suppression order.\n\n\t\n\n\n -2-\n\f I. Background\n\nA. Factual Background\n\n On January 13, 2013, Puerto Rico Police Department Agent\n\nCarlos Sepúlveda-Rivera (\"Sepúlveda\") was off-duty at La Casita,\n\na bar in Villalba, Puerto Rico, when he got into an altercation\n\nwith two men. Sepúlveda and the two men exchanged gunfire. After\n\nthe men shot Sepúlveda four times, he was transported to the\n\nhospital for treatment of his injuries. Sergeant Pedro Quiles-\n\nTorres (\"Quiles\") interviewed Sepúlveda at the hospital later that\n\nday. During his interview, Sepúlveda provided a description of\n\nhis two assailants. 1 Based on the descriptions provided by\n\nSepúlveda and a review of the security video footage of La Casita,\n\n\n\n1 According to the government, on the same evening the shootout\noccurred, Sepúlveda provided a description of the shooters'\nphysical characteristics and attire. He described one of his\nassailants, later identified as Santiago, as slim, tall, wearing\na jacket, a black sweater, and short blue pants. Sepúlveda also\nstated that, although he could not remember their names, he knew\nboth assailants. Sepúlveda explained that he knew Santiago\nbecause he played basketball for the team of La Sierra, the\nneighborhood where Sepúlveda resides, and that he was called\n\"Cabezón\" (Spanish for \"Big Head\"). Sepúlveda also stated that\nSantiago was either the son-in-law or former son-in-law of the\nformer mayor of Villalba. Indeed, Santiago's known nickname is\n\"Cabezón,\" he played for La Sierra basketball team, and was related\nto the former mayor of Villalba. As to the second assailant,\nlater identified as Richard Cartagena-Suárez, Sepúlveda provided\na physical description, described his clothing at the time of the\nincident, and stated that he knew him because Sepúlveda had\npreviously assisted in the individual's arrest for an unrelated\noffense.\n\n\n -3-\n\flocal law enforcement agents identified Santiago and Richard\n\nCartagena-Suárez (\"Cartagena\") as the shooters. The next day,\n\nQuiles showed two photo arrays to Sepúlveda, each of them\n\ncontaining nine photos. One array included Santiago's photo, and\n\nthe other one included Cartagena's. Sepúlveda picked Santiago and\n\nCartagena from the photo arrays.\n\nB. Local Case\n\n Puerto Rico prosecutors charged Santiago with attempted\n\nfirst-degree murder, carrying and using a firearm without a\n\nlicense, and discharging or pointing a firearm, in violation of\n\nPuerto Rico law. Santiago moved to suppress Sepúlveda's\n\nidentification of him on the grounds that it was obtained in\n\ncontravention of the Puerto Rico Rules of Criminal Procedure. The\n\nlocal prosecution opposed. The local trial court held a three-\n\nday evidentiary hearing, in which four witnesses (including\n\nSepúlveda and Quiles) testified. After the local trial court\n\ndenied suppression, Santiago appealed to the Puerto Rico Court of\n\nAppeals. The Puerto Rico Court of Appeals then reversed and\n\nsuppressed the identification evidence. It noted some\n\ncontradictions in Sepúlveda's testimony, concluded that\n\nSepúlveda's identification of Santiago \"and the photographic line\n\nup led by Sergeant Quiles were not trustworthy pursuant to the\n\ncriteria established by . . . [the Puerto Rico] Supreme Court in\n\n\n -4-\n\fPueblo v. Hernández González,\" 2009 WL 197570 (2009)\n\n(untranslated), and remanded the case to the local trial court.\n\nSee App. at 65, 84, May 18, 2017, No. 16-2509 (certified\n\ntranslation of People v. Santiago-Colón, KLCE 2014-00130, 2014 WL\n\n5438091 at *13, 20 (P.R. Ct. of App. Sept. 30, 2014)). The Puerto\n\nRico Supreme Court declined to intervene, and the case was later\n\ndismissed.\n\nC. Federal Case\n\n Based on the January 13, 2013 incident, a federal grand\n\njury returned an indictment on June 4, 2015, charging Santiago\n\nwith being a felon in possession of a firearm and ammunition, in\n\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2 Santiago moved\n\nto suppress Sepúlveda's out-of-court identification and to prevent\n\nSepúlveda from identifying him in court. He argued that the\n\nidentification procedure had been unduly suggestive, that the\n\nPuerto Rico Court of Appeals had already considered and rejected\n\nthe testimony of Sepúlveda and Quiles -- \"the only witnesses who\n\n[could] provide material testimony on the issues relevant to the\n\ncase at bar\" -- and that said determination was final. Urging the\n\ncourt to apply a standard like the one used when reviewing habeas\n\n\n\n2 Santiago was indicted after the Puerto Rico Court of Appeals\nissued its opinion suppressing his identification, but before the\nlocal case was dismissed.\n\n\n -5-\n\fcorpus petitions, Santiago argued that \"disagreement alone is not\n\nenough\" for a federal court to ignore a state court's credibility\n\ndetermination. Rather, \"[t]he federal court must conclude not\n\nonly that the state court's determination was wrong, but that it\n\nwas unreasonable in light of the evidence presented.\" Because,\n\naccording to Santiago, the Puerto Rico Court of Appeals's decision\n\nwas not unreasonable, he urged the district court to \"defer\" to\n\nthe \"findings made by Puerto Rico's courts,\" suppress Sepúlveda's\n\nout-of-court identification of Santiago, and preclude Sepúlveda\n\nfrom identifying Santiago in court.\n\n The government opposed the motion, arguing that Santiago\n\nhad failed to show that \"the identification procedure was\n\nimpermissibly suggestive under federal law\" and that, in fact, the\n\nprocedure was reliable. The government also noted that the Puerto\n\nRico Court of Appeals, in reversing the trial court, failed to\n\ngive due deference to the trial judge's findings of fact and\n\ntherefore misapplied Puerto Rico law. Additionally, the\n\ngovernment pointed out that Sepúlveda knew the perpetrators before\n\nthe shootout and identified Santiago by his nickname, supporting\n\nthe reliability of the identification.\n\n On October 4, 2016, without holding a hearing, the\n\ndistrict court granted Santiago's \"request to suppress\n\nidentification.\" That order was followed by an opinion entered\n\n\n -6-\n\fthe same day. Santiago-Colón, 213 F. Supp. 3d 297. In its opinion,\n\nthe district court noted that in Sánchez Valle the U.S. Supreme\n\nCourt held that \"for purposes of the Double Jeopardy Clause, the\n\n[Puerto Rico] and United States governments constitute a single\n\nsovereign, in as much [sic] as the former's power to prosecute\n\nderives from the latter's.\" Id. at 297. The district court\n\nconcluded that it \"must give the [Puerto Rico] court suppression\n\nfindings and judgment preclusive effect\" because \"[n]ot doing so\n\nwould ignore the constitutional reality that indeed [Puerto Rico]\n\nand [the] United States are but one sovereign when it comes to\n\ncriminally prosecuting individuals.\" Id. at 298. It further\n\nnoted that, although federal prosecutors \"did not participate in\n\nthe [Puerto Rico] court criminal proceedings against [Santiago],\n\ntheir local counterparts in fact did\" and \"[t]heir authority to do\n\nso ultimately emanates from the United States.\" Id. (citing\n\nSánchez Valle, 136 S. Ct. at 1863). The district court's order\n\nset a pre-trial conference for November 9, 2016 \"to discuss if the\n\nGovernment ha[d] independent evidence to proceed with its\n\nprosecution, or if it will appeal the Court's suppression order.\"3\n\n On November 10, 2016, the district court held the pre-\n\ntrial conference. At the beginning of the conference, the\n\n\n3 That pre-trial conference was later rescheduled for November 10,\n2016.\n\n\n -7-\n\fdistrict court stated that it believed \"there[] [was] a basis\" for\n\nfiling an interlocutory appeal. The government argued that the\n\ndistrict court's suppression of Santiago's identification was\n\ncontrary to binding First Circuit precedent applying collateral\n\nestoppel principles, including Bonilla Romero, 836 F.2d 39, and\n\nUnited States v. Pérez-Pérez, 72 F.3d 224 (1st Cir. 1995), and\n\nthat Sánchez Valle did not change the law. The district court\n\nrejected the government's arguments and clarified that the court's\n\ndecision was not based on collateral estoppel, but \"on an\n\nassumption that it's the same sovereign.\" According to the\n\ndistrict court, because under Sánchez Valle Puerto Rico and the\n\nUnited States are \"a single sovereign,\" the Puerto Rico court's\n\nsuppression findings and judgment have preclusive effect on a\n\nsubsequent federal prosecution and bind the district court.4\n\n The court then inquired whether the government had\n\nindependent evidence to proceed to trial. The government\n\nresponded that even though the court had suppressed Sepúlveda's\n\nout-of-court identification of Santiago, it \"would like to proceed\n\nto trial\" with the in-court identification, because Sepúlveda knew\n\n\n\n4 In the district court's words, although the local court's\ndecision \"may be a wrong ruling . . . it's still a ruling that's\nfinal,\" it \"binds the [f]ederal [g]overnment,\" and precludes\nrelitigation of the issue in federal court even if the district\ncourt \"disagree[s] with [the ruling].\"\n\n\n -8-\n\fSantiago prior to the January 13th incident and before he saw the\n\nphoto array. The government also indicated that it could use the\n\nsecurity video footage allegedly showing Santiago at the crime\n\nscene. Santiago responded that he thought the district court had\n\nsuppressed both the out-of-court identification (product of the\n\nphoto array) as well as any in-court identification because the\n\nPuerto Rico Court of Appeals had allegedly suppressed both\n\nidentifications. After reviewing again the decision from the\n\nPuerto Rico Court of Appeals, the district court concluded that\n\nthe Puerto Rico Court of Appeals had suppressed both Sepúlveda's\n\nout-of-court and in-court identifications of Santiago, and\n\nresolved to do the same. The court further stated that it would\n\n\"supplement\" its suppression order.\n\n The district court noted that if the government had no\n\nindependent evidence to identify Santiago at trial, the \"course to\n\nproceed would be for the government to file a notice of appeal,\"\n\nbecause the issue was \"definitely capable of repetition,\" would\n\n\"continue happening,\" and was \"appealable interlocutorily.\"\n\nAdditionally, it noted that \"[t]his may be the best case to do\n\nit.\" Santiago agreed that the government \"should go up to the\n\nFirst Circuit to clarify th[e] issue.\"\n\n Consistent with its statements during the pre-trial\n\nconference, later that day the district court entered an order\n\n\n -9-\n\fsupplementing its October 4th order by clarifying that its\n\nsuppression order was \"based on the single sovereign doctrine and\n\nnot on collateral estoppel\" and \"extend[ed] to both the in-court\n\nidentification by . . . Sepúlveda . . . , as well as the photo\n\nidentification.\" On December 2, 2016, the government filed its\n\nnotice of appeal, stating that it was appealing from the order\n\nentered on November 10, 2016. On November 15, 2017, the government\n\nfiled a certification under 18 U.S.C. § 3731 with the district\n\ncourt, in which the United States Attorney certified that \"the\n\nappeal is not taken for the purpose of delay and that the evidence\n\n[suppressed] is a substantial proof of a fact material in the\n\nproceeding.\"\n\n On appeal, the government claims the district court's\n\norder suppressing any in-court identification of Santiago as the\n\nshooter should be reversed because it is contrary to First Circuit\n\nprecedent, which has held that whether suppression of evidence by\n\na local court has preclusive effect in a federal proceeding is an\n\nissue of collateral estoppel, not double jeopardy. It further\n\nclaims that, under collateral estoppel principles, the suppression\n\nof the identification evidence was improper because the two\n\nprosecuting authorities were not in privity.5\n\n\n5 The government does not appeal the suppression of Sepúlveda's\nout-of-court identification of Santiago.\n\n\n -10-\n\f II. Discussion\n\nA. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731\n Certification Requirement\n\n Santiago claims that this court lacks jurisdiction to\n\nentertain this appeal because the government filed an untimely\n\nnotice of appeal and failed to comply with the certification\n\nrequirements under 18 U.S.C. § 3731. We address each procedural\n\nchallenge in turn.\n\n i. Standard of Review and Applicable Law\n\n This court must verify that it has appellate\n\njurisdiction before addressing the merits of any appeal. Espinal-\n\nDomínguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003).\n\n\"Jurisdiction is a question of law subject to de novo review.\"\n\nUnited States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).\n\n The Criminal Appeals Act establishes in relevant part\n\nthat:\n\n An appeal by the United States shall lie to a court of\n appeals from a decision or order of a district court\n suppressing or excluding evidence . . ., not made after\n the defendant has been put in jeopardy and before the\n verdict or finding on an indictment or information, if\n the United States attorney certifies to the district\n court that the appeal is not taken for purpose of delay\n and that the evidence is a substantial proof of a fact\n material in the proceeding.\n\n . . .\n\n The appeal in all such cases shall be taken within thirty\n days after the decision, judgment or order has been\n rendered and shall be diligently prosecuted.\n\n -11-\n\f The provisions of this section shall be liberally\n construed to effectuate its purposes.\n\n18 U.S.C. § 3731.\n\n The government is allowed to take an interlocutory\n\nappeal from suppression and exclusion orders in certain\n\ncircumstances to remedy the \"imbalance created by the\n\npeculiarities of criminal procedure.\" United States v. Watson,\n\n386 F.3d 304, 308 (1st Cir. 2004). While a criminal defendant who\n\nhad unsuccessfully sought suppression of evidence before trial\n\ncould appeal the denial of the suppression if he was convicted,\n\ndouble jeopardy principles preclude the government from appealing\n\na pre-trial order suppressing evidence in the event of an\n\nunfavorable verdict at trial. Id. Because \"Congress became\n\nconcerned about both this disparity and the lack of uniform\n\nstandards of admissibility that resulted from it,\" id., it amended\n\nthe Criminal Appeals Act in 1968 to allow the government to appeal\n\na pre-trial suppression or exclusion order, id. at 308-09. In\n\n1970, Congress further amended the Criminal Appeals Act to remedy\n\nthe courts' then-narrow interpretation of § 3731 and to include an\n\nexplicit \"command to construe the statute liberally,\" id. at 309,\n\nwhich this court has construed \"as a cue to put substance ahead of\n\nform\" in deciding whether it has jurisdiction to entertain an\n\nappeal, id. at 310; United States v. Kane, 646 F.2d 4, 7 (1st\n\n\n -12-\n\fCir. 1981) (noting that \"the liberal construction provision\"\n\ndictates \"a practical, rather than formalistic, application\").\n\n ii. Timeliness Issue\n\n Santiago argues that the government's notice of appeal\n\nwas untimely because it was filed more than thirty days after the\n\ndistrict court entered its October 4th order. According to\n\nSantiago, on October 4, 2016, the district court granted his motion\n\nto suppress, which sought to suppress not only Sepúlveda's out-\n\nof-court identification of him (the photo array), but also sought\n\nto prevent Sepúlveda from identifying him in court. Santiago\n\nargues that the government, however, failed to file a notice of\n\nappeal, or request clarification or reconsideration of the order,\n\nuntil after the thirty-day window provided in 18 U.S.C. § 3731 had\n\nexpired.\n\n Santiago acknowledges that \"when the lower court changes\n\nmatters of substance, or resolves a genuine ambiguity\" in an\n\notherwise appealable order, \"the period within which an appeal\n\nmust be taken . . . begin[s] to run anew,\" see Fed. Trade Comm'n\n\nv. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12\n\n(1952), but argues that such is not the case here. He contends\n\nthat while the government attempts to draw a distinction between\n\nthe October 4th and November 10th orders -- characterizing the\n\nformer as suppressing only the out-of-court identification and the\n\n\n -13-\n\flatter as further suppressing any in-court identification by\n\nSepúlveda -- such distinction is inappropriate because the order\n\non November 10th did not materially change the October 4th order.\n\nThe November 10th order, Santiago insists, merely reiterated that\n\nthe prior suppression ruling included both the out-of-court and\n\nthe in-court identifications, which does not serve to start the\n\nclock anew for appellate purposes.\n\n In response, the government argues that the notice of\n\nappeal was timely because it was filed within thirty days of the\n\nNovember 10th order, which it characterizes as a \"'supplement[al]'\n\nsuppression order\" that \"materially amended the original October 4\n\norders by suppressing evidence that was not covered by the original\n\norders.\"\n\n The government states that neither the Puerto Rico Court\n\nof Appeals's opinion nor the district court's October 4th order\n\n\"specifically addressed whether Agent Sepúlveda would be\n\nprohibited from identifying Santiago\" at trial. According to the\n\ngovernment, the \"ambiguous\" language of the Puerto Rico Court of\n\nAppeals's opinion and the district court's October 4th order, in\n\nconjunction with the district court's simultaneous scheduling of\n\na pre-trial conference to discuss whether the government had\n\nindependent evidence to proceed with its prosecution, as well as\n\nfederal case law suggesting that suppression of an out-of-court\n\n\n -14-\n\fidentification by a witness does not necessarily preclude an in-\n\ncourt identification by the same witness, led it to believe that\n\nonly the photo array evidence had been suppressed. The government\n\nsubmits that the October 4th order was so ambiguous that the\n\ndistrict court had to re-read the Puerto Rico Court of Appeals's\n\nopinion in order to determine whether its October 4th order also\n\nencompassed the in-court identification. The government further\n\nargues that if the October 4th order had been clear, as Santiago\n\nclaims, \"it would have been unnecessary for the district court to\n\n'issue a supplement[al] order clarifying' its original ruling\" and\n\nthat the order itself stated that it was a \"supplement\" to the\n\nOctober 4th order, which \"extend[ed]\" suppression to in-court\n\nidentification.\n\n We are persuaded by the government's arguments. The\n\nOctober 4th order did not specify the scope of the suppression,\n\nand the Puerto Rico Court of Appeals's opinion, on which the\n\ndistrict court relied, was ambiguous as to whether it also\n\nprecluded Sepúlveda from identifying Santiago in court. In fact,\n\nthe opinion of the Puerto Rico Court of Appeals gave the impression\n\nthat only the photographic lineup identification had been\n\nsuppressed.6\n\n\n6 The Puerto Rico Court of Appeals's opinion stated as follows:\n\n [P]etitioners filed a Motion to Suppress Identification\n\n -15-\n\f In addition, as the government contends, suppression of\n\na photographic lineup identification does not necessarily require\n\nexclusion of an in-court identification provided that the\n\nprosecution can \"establish by clear and convincing evidence that\n\nthe in-court identification[] w[as] based upon observations of the\n\nsuspect other than the lineup identification.\" Moore v. Illinois,\n\n434 U.S. 220, 225-26 (1977) (quoting United States v. Wade,\n\n388 U.S. 218, 240 (1967)). Hence, this supports the government's\n\nunderstanding that only the out-of-court identification had been\n\nsuppressed, and Sepúlveda could identify Santiago in court based\n\non his knowledge of Santiago prior to the photo array.\n\n Furthermore, as the government argues, the district\n\ncourt's scheduling of a pre-trial conference to discuss whether\n\nthe government had additional evidence to proceed to trial, as\n\nwell as the events that transpired during that pre-trial\n\n\n . . . alleg[ing] that . . . they were identified through\n photographs the day after the facts . . . [and] . . .\n that the process was 'severely vitiated' [in] that it\n did not comply with the provisions of Rule 252.2 of\n [Puerto Rico] Criminal Procedure Rules. . . . [W]e\n conclude that the identification that Agent Sepúlveda\n Rivera made of . . . Santiago . . . and the photographic\n line up [sic] led by Sergeant Quiles were not trustworthy\n pursuant to the criteria established by our Supreme\n Court in Pueblo v. Hernández González. . . . [Thus, the\n trial court's] resolution is vacated and set aside and\n in its consequence, the suppression of the\n identification of petitioners is ordered.\n\nApp. at 41, 84, May 18, 2017, No. 16-2509.\n\n -16-\n\fconference, also support the government's interpretation that the\n\nOctober 4th order had not suppressed all of the identification\n\nevidence. At the November 10th conference, the parties disputed\n\nthe scope of the October 4th suppression order. When the\n\ngovernment stated that it believed the order had suppressed the\n\nout-of-court identification only, the district court did not\n\nclarify that it had also suppressed the in-court identification.\n\nInstead, the court decided to hear from defense counsel. In fact,\n\neven after defense counsel argued that the October 4th order\n\n\"clear[ly]\" suppressed both identifications, the court stated as\n\nfollows:\n\n [I]f the government wants to proceed to trial, what I\n need then is for the government to file a motion and\n inform what witnesses are going to testify and if they're\n going to identify him in court or not so the defense can\n adequately respond. And then I can either -- either\n I'll grant it or deny it. And if I deny it and basically\n I'm suppressing everything, then the government can\n still appeal.\n\n The district court then took a brief recess to review\n\nthe opinion from the Puerto Rico Court of Appeals in order to\n\nascertain the scope of its own suppression order. It was after\n\nreviewing again the opinion from the Puerto Rico Court of Appeals\n\nthat the district court stated that it would suppress both\n\nidentifications. It found that a \"supplement[al] order\n\nclarifying\" its original order was warranted. The court deemed\n\nit appropriate to clarify that its ruling was based \"on the single\n\n -17-\n\fsovereign doctrine, not on collateral estoppel,\" and that its\n\n\"suppression ruling would include the identification of Agent\n\nSepúlveda of the defendant, as well as his . . . photo . . .\n\nidentification.\" It is worth noting that the court stated its\n\nsuppression ruling \"would include,\" and not that it \"included\" or\n\n\"had included,\" the in-court identification. Therefore, the\n\ncourt's chosen language supports the government's contention that\n\nthe original order did not include the in-court identification.\n\nThe court then proceeded to issue a supplemental order clarifying\n\nits October 4th order to these effects. See Dkt. No. 70,\n\nUnited States v. Santiago-Colón, 15-cv-00396 (\"supplement[ing] its\n\nruling [of October 4th] . . . to the effect that that the same\n\n[was] based on the single sovereign doctrine and not on collateral\n\nestoppel\" and \"hold[ing] that its suppression extends to both the\n\nin-court identification by Agent Sepúlveda Rivera, as well as the\n\nphoto identification\").7\n\n Considering the record as a whole, we hold that the\n\nNovember 10th order amended or materially changed the October 4th\n\norder, which had the effect of restarting the thirty-day clock.\n\n\n\n7 The court used the language \"the Court holds\" as if it was\ndetermining the scope of the suppression for the first time,\ninstead of using language such as \"clarifies,\" which would suggest\nthat the decision had been previously taken. Dkt. No. 70,\nUnited States v. Santiago-Colón, 15-cv-00396 (emphasis added).\n\n\n -18-\n\fThis makes timely the government's notice of appeal of the\n\nNovember 10th order. See United States v. Cheal, 389 F.3d 35, 53\n\n(1st Cir. 2004) (noting that courts are encouraged \"to construe\n\nnotices of appeal liberally and examine them in the context of the\n\nrecord as a whole\" (quoting Chamorro v. Puerto Rican Cars, Inc.,\n\n304 F.3d 1, 3 (1st Cir. 2002))).\n\n iii. 18 U.S.C. § 3731 Certification Issue\n\n Santiago also argues that this court lacks jurisdiction\n\nto entertain the interlocutory appeal because the United States\n\nAttorney did not timely file a § 3731 certification with the\n\ndistrict court certifying that the appeal was not taken to delay\n\nthe proceedings and that the evidence suppressed is substantial\n\nproof of a material fact. Santiago acknowledges that this court\n\nhas not addressed whether certification is a pre-condition to\n\nappellate jurisdiction but argues that we should treat it as such.\n\nHe further argues that even if we were to treat non-compliance\n\nwith the certification requirement as a \"filing irregularity\"\n\ngoverned by Federal Rule of Appellate Procedure 3(a) -- which would\n\nleave any appropriate action, including dismissal of the appeal,\n\nto the court's sound discretion -- we should not condone the\n\ngovernment's \"disregard for diligence.\"\n\n In response, the government acknowledges that it filed\n\nthe § 3731 certification belatedly, after Santiago pointed out the\n\n\n -19-\n\fgovernment's non-compliance with the certification requirement in\n\nhis response brief, and apologizes for the late filing.8 But, the\n\ngovernment claims that such late filing does not require dismissal\n\nof the appeal.\n\n The government notes that \"[t]he purpose of the\n\ncertification requirement is to ensure that the prosecutor\n\ncarefully analyzed the case before deciding to appeal\" and that,\n\ndespite its belated filing of the § 3731 certification, the\n\ngovernment did comply with the substance of § 3731 before it filed\n\nits notice of appeal. It points out that the Solicitor General,\n\nwho decides whether the government will seek appellate review in\n\na given case, \"considers a variety of factors, such as the limited\n\nresources of the government and the crowded dockets of the courts,\n\nbefore authorizing an appeal,\" and that this deliberative process\n\nwas followed here, when the Acting Solicitor General approved\n\nfiling an appeal on April 19, 2017. It further points out that\n\nthe Criminal Division of the United States Attorney's Office also\n\n\"thorough[ly] review[ed]\" this case before the government decided\n\nto file its notice of appeal.\n\n\n8 The government explains that at the time it filed its notice of\nappeal, counsel of record was a Special Assistant United States\nAttorney (\"SAUSA\") on detail from the Puerto Rico Department of\nJustice who was inexperienced in federal appellate procedures, and\nthe government first became aware of the missing certification\nwhen Santiago raised the issue in his response brief.\n\n\n -20-\n\f The government contends that most appellate courts that\n\nhave addressed the issue have not treated the certification as a\n\njurisdictional requirement. Rather, \"[t]hey have held that\n\nwhether dismissal is an appropriate remedy is a matter that falls\n\nwithin the court's discretion.\"\n\n Furthermore, the government points us to United States\n\nv. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), in which this court\n\nrejected the argument that dismissal was warranted because the\n\nUnited States Attorney had not personally signed the § 3731\n\ncertification filed with the district court. It notes that in\n\nCrespo-Ríos the court gave weight to the deliberative process the\n\ngovernment underwent before filing its appeal (including review by\n\nthe United States Attorney and the Solicitor General), as well as\n\nto Congress's mandate that § 3731 be construed liberally. The\n\ngovernment argues that both considerations are present in this\n\ncase and thus urges us to consider the appeal on its merits.\n\n It is uncontested that the government filed its § 3731\n\ncertification belatedly. However, in light of Congress's mandate\n\nthat 18 U.S.C. § 3731 be \"liberally construed to effectuate its\n\npurposes,\" we decline Santiago's invitation to treat the\n\ncertification as a jurisdictional requirement. Instead, we join\n\nmost of the circuits that have addressed the issue and leave it to\n\nthe court's sound discretion to determine whether dismissal of an\n\n\n -21-\n\fappeal for failure to comply with the § 3731 certification\n\nrequirement is appropriate in a particular case. See, e.g.,\n\nUnited States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per\n\ncuriam) (refusing to treat § 3731's certification requirement as\n\njurisdictional and exercising appellate jurisdiction even though\n\nthe United States Attorney's certification was filed after the\n\ndefendant-appellee had already filed his brief, because the\n\nSolicitor General had authorized the appeal and there seemed to be\n\nno prejudice resulting from the belated filing); see also\n\nUnited States v. McNeill, 484 F.3d 301, 309 (4th Cir. 2007) (noting\n\nthat failure to file a timely § 3731 certification does not deprive\n\nthe court of jurisdiction over the appeal, but \"is a ground for\n\nthe court of appeals to act as it considers appropriate\") (internal\n\nquotation marks and citation omitted); United States v. Smith,\n\n263 F.3d 571, 578 (6th Cir. 2001) (treating a failure to timely\n\nfile a § 3731 as \"an irregularity in perfecting [an] appeal\" and\n\nnoting that its \"sister circuits have consistently held that the\n\ndelayed filing of a section 3731 certificate, although disfavored,\n\ndoes not divest appellate courts of their jurisdiction\")\n\n(collecting cases).\n\n Here, we find that dismissal of the appeal is\n\nunwarranted. This case presents an important issue that, as the\n\ndistrict court acknowledged, is \"definitely capable of repetition\"\n\n\n -22-\n\fand would \"continue happening.\" In fact, the United States\n\nDistrict Court for the District of Puerto Rico is already split as\n\nto how to resolve this issue of law.9 Moreover, this case presents\n\na question of law and, as the district court stated, \"[t]his may\n\nbe the best case to [decide the issue],\" which has been fully\n\nbriefed. We note that although the government failed to file the\n\nrequired certification at the time it filed its notice of appeal,\n\nit complied with the substance and purpose of the certification\n\nrequirement. As the government explained, before it filed its\n\nbrief, the government engaged in the deliberative process to\n\ndetermine whether the issue should be taken on appeal. Compliance\n\nwith the essence of this deliberative process, as well as the\n\nmandate to construe the statute liberally, were determinative\n\nfactors in Crespo-Ríos. 645 F.3d at 44 n.6. Furthermore, the\n\ngovernment's failure to timely file the § 3731 certification has\n\nin no way prejudiced Santiago.10 See Smith, 263 F.3d at 578 (noting\n\n\n9 In United States v. Rosado-Cancel, the district court rejected\nthe defendant's argument that federal firearms charges should be\ndismissed under Sánchez-Valle because a Puerto Rico court had\nalready dismissed parallel Puerto Rico firearms charges for lack\nof probable cause. No. 13-731, 2017 WL 543199, at *7 (D.P.R.\nFeb. 10, 2017) (Domínguez, J.). Relying on our holding in Bonilla\nRomero, the district court held that \"any issue preclusion argument\n. . . would . . . fail on lack-of-privity grounds.\" Id.\n10 Santiago claims to have been prejudiced by the government's\nbelated filing of its § 3731 certification because he has remained\nimprisoned during the pendency of the government's appeal. He has\nfailed, however, to explain how his situation would have been\n\n -23-\n\fthat \"[i]n exercising their discretion, courts typically consider\n\na variety of factors, including: when the certificate was filed;\n\nthe reason for the failure to timely file it; whether the\n\ngovernment did in fact engage in a conscientious pre-appeal\n\nanalysis; whether the government acknowledges that the\n\ncertification requirement should be taken seriously; any delay or\n\nprejudice to the defendant; whether the appeal raises important\n\nlegal issues needing appellate clarification; and whether the\n\nappeal should be heard in the interest of justice, or for any other\n\nsignificant reason\") (internal quotation marks omitted).\n\n Finding no procedural issue that divests us of\n\njurisdiction, we now turn to the merits of this appeal.\n\nB. Suppression Issue\n\n The government argues that the district court's\n\nconclusion -- that because Puerto Rico and the United States are\n\na single sovereign for purposes of the Double Jeopardy Clause,\n\nsuppression rulings by Puerto Rico courts are binding in federal\n\nprosecutions -- is unsupported by Sánchez Valle and contrary to\n\nlongstanding First Circuit precedent.\n\n\n\n\ndifferent had the government timely complied with the\ncertification requirement. Thus, Santiago has not shown any\nprejudice stemming from the belated filing.\n\n\n -24-\n\f According to the government, Sánchez Valle does not hold\n\nthat Puerto Rico and the United States are the same for purposes\n\nof all criminal law enforcement and procedure. Instead, it\n\nnarrowly held that they are a single sovereign for double jeopardy\n\npurposes, which the government posits has no bearing in this case.\n\nThe government argues that the doctrine of collateral estoppel is\n\ncontrolling, as held in \"two precedential decisions\" which it\n\nclaims are still binding: Bonilla Romero, 836 F.2d at 42-43, and\n\nPérez-Pérez, 72 F.3d at 226. Under a collateral estoppel\n\nanalysis, the government urges us to find that the district court\n\nwas not collaterally estopped by the local court's suppression\n\ndecision because the United States was neither a party, nor in\n\nprivity with a party, at the local suppression proceedings.\n\n Santiago agrees with the government that \"the doctrine\n\nof collateral estoppel controls this case rather than double\n\njeopardy.\" He notes that the district court \"conflate[d] the\n\ntwo,\" but argues that its ruling is nevertheless \"clear.\"\n\nSantiago further argues that Sánchez Valle confirmed that Puerto\n\nRico \"has what amounts to an agency relationship with the federal\n\ngovernment.\" Yet, because Bonilla Romero predates Sánchez Valle,\n\nthe former \"did not fully confront Puerto Rico's agency\n\nrelationship with the United States\" and thus should not be\n\ncontrolling. Santiago submits that, in any event, even if Bonilla\n\n\n -25-\n\fRomero is still good law, it is \"factually and legally\n\ndistinguishable\" from his case.\n\n In Bonilla Romero, this court rejected Santiago's\n\ncontention that suppression of evidence by a Puerto Rico court in\n\na local prosecution necessarily requires suppression of the same\n\nevidence in a subsequent federal prosecution. 836 F.2d at 41-45.\n\nThere, Puerto Rico officers had seized two firearms and drugs from\n\nthe car and house of the defendant, who was charged with weapons\n\nand drug offenses under Puerto Rico law. Id. at 41. Months\n\nlater, based on that same evidence, a grand jury returned an\n\nindictment charging the defendant with federal crimes. Id. After\n\nholding a hearing, the Puerto Rico trial court granted the\n\ndefendant's motion to suppress because the local judge \"seriously\n\ndoubted the veracity\" of the officers' testimony. Id. The local\n\nprosecution was subsequently dismissed. Id. The defendant then\n\nsought suppression of the same evidence in the district court.\n\nId. The district court \"held that the federal court was not bound\n\nby the decision of the local court to suppress the evidence\" and\n\nultimately denied the defendant's motion to suppress. Id. After\n\nthe defendant was convicted on all federal counts, he appealed the\n\ndenial of his motion to suppress, arguing, inter alia, that\n\nallowing the government to relitigate the suppression issue\n\n\n\n\n -26-\n\fviolated the Double Jeopardy Clause as well as collateral estoppel\n\nprinciples. Id.\n\n We rejected both challenges. First, regarding the\n\ndouble jeopardy challenge, we noted that \"jeopardy 'attaches' when\n\na trial commences; that is, when a jury is sworn or empanelled or,\n\nin a bench trial, when the judge begins to hear evidence.\" Id.\n\nat 42 (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26\n\n(1980)). Because \"jeopardy did not attach as a result of the\n\nsuppression of evidence ordered . . . by the Puerto Rico . . .\n\n[c]ourt[,] and the subsequent dismissal of charges under Puerto\n\nRico law,\" the litigation of the suppression of evidence issue in\n\nfederal court did not violate the defendant's rights under the\n\nDouble Jeopardy Clause. Id.\n\n Second, assuming without deciding that the doctrine of\n\ncollateral estoppel applied even when jeopardy had not attached,11\n\nwe rejected the defendant's contention that \"relitigation of the\n\n\n11 As in Bonilla Romero, this appeal does not require us to decide\nwhether collateral estoppel is applicable in criminal proceedings\nregardless of whether jeopardy has attached. See Bonilla Romero,\n836 F.2d at 43. Because both parties urge us to apply the doctrine\nof collateral estoppel, and because we would reach the same result\nirrespective of whether the doctrine applies, we assume that the\ncollateral estoppel doctrine is applicable regardless of whether\njeopardy has attached. We further note that, although the\ngovernment stated at oral argument that the Supreme Court seems to\nbe moving away from applying collateral estoppel in criminal cases,\nthe parties did not brief the issue and, instead, both assumed\nthat the collateral estoppel doctrine remains applicable.\n\n\n -27-\n\fsuppression was barred by the principle of collateral estoppel\" in\n\nthat case. Id. at 42-44. We noted that the doctrine of collateral\n\nestoppel requires, inter alia, \"that the party to be precluded\n\nfrom relitigating an issue decided in a previous litigation . . .\n\neither [had been] a party or [had been] in privity with a party to\n\nthat prior litigation,\" and concluded that said requirement was\n\nnot satisfied in that case because \"the federal prosecutors were\n\nneither a party, nor in privity with a party, to the suppression\n\nhearing in the Puerto Rico Superior Court.\"12 Id. at 43. We\n\nclarified that \"the source of authority of two government entities\n\nis not dispositive of whether they are in privity.\" Id. at 43.\n\nThus, \"Puerto Rico's sovereignty status as a United States\n\nterritory\" has no bearing on the determination of whether federal\n\nprosecutors would be bound by a prior suppression of the same\n\nevidence by a Puerto Rico court.13 Id. at 44. Instead, \"we must\n\n\n12 We found that there was no evidence that federal prosecutors\nwere involved in the local prosecution or that they provided\nassistance or advice to local authorities. Id. at 44. We further\nnoted that \"[t]he initial suppression hearing concerned purely\nlocal charges over which the federal enforcement officials had no\nauthority and thus no interest,\" and, accordingly, \"[f]ederal\nprosecutors had no reason to believe that a Puerto Rico Superior\nCourt judge would be deciding any matters affecting a federal\nprosecution.\" Id.\n13 Prior to Bonilla Romero, this court had addressed Puerto Rico's\nsovereignty status as a United States territory in United States\nv. López Andino, where we held that Puerto Rico was a \"separate\nsovereign for the limited purpose of the double jeopardy clause.\"\n831 F.2d 1164, 1168 (1st Cir. 1987), overruled by Sánchez Valle,\n\n -28-\n\fdetermine whether there was a close or significant relationship\n\nbetween the federal and Puerto Rico prosecutors during the local\n\nsuppression hearing or whether the federal authorities controlled\n\nor actively participated in that hearing such that their interests\n\nin enforcing federal law were sufficiently represented.\" Id.\n\n In Pérez-Pérez, we reiterated Bonilla Romero's holding\n\nthat application of the doctrine of collateral estoppel in criminal\n\ncases requires that \"the party to be precluded . . . have been the\n\nsame as, or in privity with, the party who lost on that issue in\n\nthe prior litigation.\" 72 F.3d at 226 (citing Bonilla Romero, 836\n\nF.2d at 42-44). We noted that Bonilla Romero had already rejected\n\nthe defendant's argument that if the United States and Puerto Rico\n\nwere considered a \"single sovereign\" for double jeopardy purposes,\n\nthen they were also in privity under collateral estoppel\n\nprinciples. Id.\n\n Bonilla Romero directly addresses the issue presently\n\nbefore us. The district court, however, found that it is no longer\n\ngood law in light of Sánchez Valle. It held that because under\n\nSánchez Valle Puerto Rico and the United States are considered\n\n\"one sovereign when it comes to criminally prosecuting\n\n\n136 S. Ct. at 1868. In Bonilla Romero, we noted that there was\n\"extensive argument[]\" over that conclusion, including\ndisagreement among members of this court. 836 F.2d at 42 n.2, 44\nn.4.\n\n\n -29-\n\findividuals,\" it \"must give the [Puerto Rico] court suppression\n\nfindings and judgment preclusive effect\" even when federal\n\nprosecutors \"did not participate in the [Puerto Rico] court\n\ncriminal proceedings against Santiago.\" We disagree.\n\n Sánchez Valle is a double jeopardy case. The Double\n\nJeopardy Clause of the Fifth Amendment protects an individual from\n\nbeing \"twice put in jeopardy of life or limb\" for the same offense,\n\nU.S. Const. amend. V., if the prosecutions are brought by the same\n\nsovereign, Sánchez Valle, 136 S. Ct. at 1870. In Sánchez Valle,\n\nthe Supreme Court faced the issue of whether Puerto Rico and the\n\nUnited States were the same sovereign for purposes of the Double\n\nJeopardy Clause, which would in turn determine whether the federal\n\ngovernment and Puerto Rico were barred \"from successively\n\nprosecuting a defendant on like charges for the same conduct.\"\n\nId. To determine whether Puerto Rico and the United States were\n\nthe same or different sovereigns for double jeopardy purposes, the\n\ncourt performed a \"historical, not functional,\" inquiry, id. at\n\n1871, looking only to \"whether the prosecutorial powers of the two\n\njurisdictions ha[d] independent origins,\" id. (citing United\n\nStates v. Wheeler, 435 U.S. 313, 320 (1978)).14 It held that they\n\n\n14 The Court specifically stated that \"the 'extent of control'\nthat 'one prosecuting authority [wields] over the other'\" is\nirrelevant. Sánchez Valle, 136 S. Ct. at 1870 (alteration in\noriginal).\n\n\n -30-\n\fdid not, because \"the oldest roots of Puerto Rico's power to\n\nprosecute lie in federal soil,\" id. at 1868, inasmuch as \"Congress\n\nconferred the authority to create the Puerto Rico Constitution,\n\nwhich in turn confers the authority to bring criminal charges,\"\n\nid. at 1876. Because the prosecutorial authority of both the\n\nfederal government and Puerto Rico emanates from a single source\n\n-- Congress -- the two are considered a single sovereign for double\n\njeopardy purposes and \"the two governments cannot 'twice put' [an\n\nindividual] 'in jeopardy' for the 'same offence.'\" Id. at 1875-77.\n\n There is no doubt that double jeopardy concerns are not\n\nimplicated in this case. Santiago's local charges were dismissed\n\nbefore trial, and thus jeopardy never attached in the local\n\ncourts.15 Santiago concedes as much. The district court itself\n\nacknowledged that Sánchez Valle is a case about double jeopardy,\n\nbut stated that it would \"extend Sánchez Valle to the suppression\n\ncontext . . . based on the fact that [Puerto Rico and the United\n\nStates are] a single sovereign.\" According to the district court,\n\nalthough there is no indication in Sánchez Valle that the Supreme\n\n\n\n15 Furthermore, the local and federal charges were not for the\nsame offenses. See Brown v. Ohio, 432 U.S. 161, 165 (1977) (\"The\nDouble Jeopardy Clause 'protects against a second prosecution for\nthe same offense after acquittal. It protects against a second\nprosecution for the same offense after conviction. And it\nprotects against multiple punishments for the same offense.'\"\n(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))).\n\n\n -31-\n\fCourt intended to extend its analysis of the \"notion to\n\nsovereignty\" outside of the double jeopardy context, it did not\n\npreclude it either. The district court's holding, however, runs\n\nhead-on into the law of the circuit rule.\n\n \"The law of the circuit rule (a branch of the stare\n\ndecisis doctrine) holds that 'newly constituted panels in a multi-\n\npanel circuit court are bound by prior panel decisions that are\n\nclosely on point.'\" United States v. Wurie, 867 F.3d 28, 34 (1st\n\nCir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co.,\n\n612 F.3d 25, 33 (1st Cir. 2010)). Exceptions to this rule are\n\n\"extremely narrow and their incidence is hen's-teeth-rare.\"\n\nSan Juan Cable LLC, 612 F.3d at 33. \"Such exceptions come into\n\nplay only when the holding of the prior panel is 'contradicted by\n\ncontrolling authority, subsequently announced (say, a decision of\n\nthe authoring court en banc, a Supreme Court opinion directly on\n\npoint, or a legislative overruling).'\" Id. (quoting United States\n\nv. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)). \"An even less\n\ncommon exception has been recognized in those 'rare instances in\n\nwhich authority that postdates the original decision, although not\n\ndirectly controlling, nevertheless offers a sound reason for\n\nbelieving that the former panel, in light of fresh developments,\n\nwould change its collective mind.'\" Wurie, 867 F.3d at 34 (quoting\n\nRodríguez, 527 F.3d at 225).\n\n\n -32-\n\f Here, there has been no en banc decision from this court\n\ncontradicting our holding in Bonilla Romero. There has also been\n\nno statutory overruling. Nor is there a Supreme Court opinion\n\ndirectly on point contradicting our precedent. We are thus left\n\nto consider the only remaining exception to the law of the circuit\n\nrule -- whether Sánchez Valle, although not directly controlling,\n\noffers a sound reason for believing that the Bonilla Romero panel\n\nwould change its collective mind. We find that it does not.\n\n Sánchez Valle, which had nothing to do with collateral\n\nestoppel, and where the Supreme Court emphasized the narrowness of\n\nits holding, held that Puerto Rico and the United States are a\n\nsingle sovereign for purposes of the Double Jeopardy Clause because\n\nthe source of authority of both prosecutorial powers derive from\n\nthe same source. Although Puerto Rico and the United States had\n\nnot been considered a single sovereign in the context of a criminal\n\nproceeding at the time that Bonilla Romero and Pérez-Pérez were\n\ndecided, this court nevertheless considered in Bonilla Romero the\n\npossible effect of deeming Puerto Rico and the United States a\n\nsingle sovereign and rejected that the \"source of authority of\n\n[the] two governmental entities\" could be \"dispositive of whether\n\nthey are in privity.\" Bonilla Romero, 836 F.2d at 43.\n\n We held, both in Bonilla Romero and in Pérez-Pérez, that\n\nPuerto Rico's sovereign status as a United States territory \"does\n\n\n -33-\n\fnot determine whether the federal prosecutors are bound by a\n\npretrial suppression order issued by a Puerto Rico court.\"\n\nBonilla Romero, 836 F.2d at 44; see also Pérez-Pérez, 72 F.3d at\n\n226 (noting that Bonilla Romero rejected that finding that Puerto\n\nRico and the United States are a \"single sovereign\" \"establishes\n\nan identity between the two governments\"). Instead, what\n\ndetermines whether collateral estoppel is applicable is whether\n\n\"the party to be precluded from relitigating an issue decided in\n\na previous litigation was either a party or in privity with a party\n\nto that prior litigation.\" Bonilla Romero, 836 F.2d at 43.\n\nBecause at the time of Bonilla Romero and Pérez-Pérez we considered\n\nthe possibility that Puerto Rico and the United States could be\n\ndeemed a single sovereign, and nonetheless rejected that a finding\n\nof single sovereignty would affect our analysis of the issue, we\n\nfind no sound reason to believe that the Bonilla Romero panel would\n\nchange its collective mind in light of Sánchez Valle.\n\nAccordingly, we conclude that Bonilla Romero is still good law.\n\n Santiago, however, urges us to find his case\n\ndistinguishable from Bonilla Romero, arguing that: (1) unlike in\n\nhis case, the local decision suppressing the evidence in\n\nBonilla Romero was not \"a final decision from the highest court in\n\nPuerto Rico\"; (2) the district court in Bonilla Romero had held a\n\nsuppression hearing before the local court entered its order\n\n\n -34-\n\fsuppressing the evidence in the local proceedings; (3) it is\n\n\"unclear from the record in Bonilla Romero whether the [local]\n\ncourt applied relevant federal law in its order granting the motion\n\nto suppress\"; and, (4) because Bonilla Romero was decided shortly\n\nafter López Andino, 831 F.2d at 1164, we can presume that\n\nLópez Andino's holding \"permeated\" Bonilla Romero's rationale; yet\n\nthat rationale no longer stands on firm ground after Sánchez Valle.\n\nWe find these arguments unpersuasive. Nothing in Bonilla Romero\n\nsuggests that the first three factors played any role in this\n\ncourt's analysis.16 Santiago's last alleged distinction fares no\n\nbetter in light of Bonilla Romero's explicit statement that \"the\n\nsource of authority of the two government entities\" was also\n\nirrelevant to the analysis. Bonilla Romero, 836 F.2d at 43-44.\n\nAccordingly, we do not find Santiago's case distinguishable from\n\nBonilla Romero.\n\n Applying our on-point precedent, we conclude that the\n\ndistrict court erred when it deemed itself bound by the Puerto\n\n\n16 Furthermore, Santiago's argument that his case is\ndistinguishable from Bonilla Romero because that case did not\ninvolve \"a final decision from the highest court in Puerto Rico\"\nis misleading. The local decision suppressing the identification\nevidence in Santiago's local case, although final, was not a\ndecision from the highest court in Puerto Rico. In fact, the\nPuerto Rico Supreme Court declined to intervene in the case. Thus,\nit was a final decision from the local intermediate court. In any\nevent, how high the case went in the local courts is not relevant\nto whether there was privity between the prosecuting authorities.\n\n\n -35-\n\fRico Court of Appeals's decision to suppress the identification\n\nevidence without analyzing whether the requirements of collateral\n\nestoppel were satisfied. See id.; see also Pérez-Pérez, 75 F.3d\n\nat 226. We note that the district court went to great lengths to\n\nclarify that it was not ruling on collateral estoppel grounds, but\n\nthat was precisely the analysis that it should have applied. The\n\ndistrict court should have analyzed whether the federal prosecutor\n\nwas in privity with the local prosecutors that participated in the\n\nlocal suppression proceedings. It erred in failing to do so.\n\n As his final plea, Santiago urges us to find that the\n\ngovernment is collaterally estopped from litigating the\n\nsuppression issue in the district court. He argues that, although\n\nthe federal prosecution was not a party, it was in privity with\n\nthe local prosecution when the latter litigated the suppression\n\nissue in Puerto Rico courts. Because the parties do not dispute\n\nthe facts on which the privity analysis hinges, we proceed to\n\nanalyze the issue. See Bonilla Romero, 836 F.2d at 43-44 (analyzing\n\nthe privity issue in the first instance).\n\n Santiago posits that the federal prosecution was in\n\nprivity with the local prosecution due to the relationship between\n\nlocal and federal prosecutors. He claims that the federal\n\nprosecution was involved in his local proceedings because the\n\nevents of January 13 constituted a violation of his federal\n\n\n -36-\n\fprobation. In support of this assertion, he cites to a filing by\n\nthe SAUSA then assigned to the federal case, which stated, \"the\n\nUnited States has been in contact and coordination with the victim\n\nof the attempted murder charges and with the Puerto Rico Police\n\nDepartment agent who has conducted the investigation into the\n\nalleged crime.\"17 He further contends that the SAUSA then assigned\n\nto the federal prosecution was on detail from the Puerto Rico\n\nDepartment of Justice, and that the victim (Sepúlveda) and the\n\ninvestigating officer (Quiles) involved in the local prosecution\n\n\"were backbone[s] of the federal prosecution.\" In addition,\n\nSantiago submits that the \"charging structure . . . also supports\n\na finding of strategic cooperation between federal and local\n\nprosecutors.\" In sum, Santiago argues that because \"[local] and\n\nfederal prosecutors -- two hands of the same sovereign --\n\nsimultaneously worked two prosecutions involving the same facts,\n\nthe same witnesses, and the same law[,] [t]heir legal relationship\n\nand actions support[] a finding of privity.\"\n\n We find Santiago's arguments unpersuasive. Although\n\nSantiago argues that Puerto Rico has \"what amounts to an agency\n\nrelationship\" with the United States, Bonilla Romero is clear that\n\n\n17 This quote, taken from the government's motion for an extension\nof time to respond to Santiago's motion to suppress evidence, does\nnot indicate that the SAUSA had been in contact or coordination\nwith state prosecutors.\n\n\n -37-\n\fPuerto Rico's relationship with the United States \"is not\n\ndispositive of whether they are in privity.\" Bonilla Romero,\n\n836 F.2d at 43. Furthermore, the district court explicitly found\n\nthat the federal prosecutor did not participate in the local\n\nproceedings against Santiago, and Santiago failed to show that\n\nthis factual finding was erroneous, much less clearly erroneous.\n\nSee United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir.\n\n2014) (noting that on appeal from a district court's suppression\n\nruling, we review factual findings for clear error). Nor does the\n\nrecord support Santiago's contention that the federal prosecution\n\ncontrolled or was involved in the Commonwealth proceedings, which\n\n\"concerned purely local charges over which the federal enforcement\n\nofficials had no authority and thus no interest.\" Bonilla Romero,\n\n936 F.2d at 44.\n\n Although shortly after the shootout a United States\n\nProbation Officer filed a motion notifying the district court that\n\nhe had been in contact with the victim and the investigating\n\nofficer, the motion does not state or imply that a federal\n\nprosecutor (as opposed to a United States Probation Officer) had\n\nbeen in contact or coordination with state prosecutors. See id.\n\nat 43 (\"In this case, the requirement was not satisfied since the\n\nfederal prosecutors were neither a party, nor in privity with a\n\nparty, to the suppression hearing in the Puerto Rico Superior\n\n\n -38-\n\fCourt.\") (emphasis added). It was not until five months after the\n\nlocal suppression hearing took place that a federal prosecutor\n\nentered an appearance in Santiago's federal probation revocation\n\nproceedings. 18 In addition, although the federal prosecutor\n\nassigned to his case was a SAUSA on detail from the Puerto Rico\n\nDepartment of Justice, Santiago has offered no evidence that she\n\nwas involved in the local suppression proceedings, that she\n\nassisted or gave advice to local authorities, or even discussed\n\nthe matter with them. Moreover, this court has clarified that\n\n\"the appointment of a state prosecutor as a special federal\n\nprosecutor, subsequent to the state court action, 'does not\n\nretroactively make the federal government a party to an earlier\n\nstate court proceeding.'\" United States v. Charles, 213 F.3d 10,\n\n21 (1st Cir. 2000) (quoting United States v. Safari, 849 F.2d 891,\n\n893 (4th Cir. 1988)).\n\n We also find unpersuasive Santiago's argument that\n\nprivity can be found because both prosecutions involve the same\n\nfacts, witnesses (including the victim and the investigating\n\nofficer), or law. Involvement of the same victim and investigating\n\nofficer in two prosecutions is to be expected where local and\n\n\n18 It is understandable that the federal prosecutor would be in\ncontact with the victim and the agent conducting the investigation\nbecause they would presumably be government witnesses at the\nrevocation hearing in federal court.\n\n\n -39-\n\ffederal charges are brought for the same underlying events, even\n\nif the local and federal prosecutions are for different offenses\n\nwith different elements. In fact, the federal and local\n\nprosecutions in Bonilla Romero involved at least the same facts\n\nand witnesses, yet this court found no privity between the\n\nprosecuting authorities. Bonilla Romero, 836 F.2d at 41, 44.\n\nFinally, contrary to Santiago's contention, the timing of the\n\nevents -- where federal charges were brought before the local case\n\nwas dismissed, and local charges were refiled after Santiago's\n\nfederal case was already pending -- suggests that there was no\n\ncoordination between the federal and local prosecutions.\n\n In sum, what determines if privity exists is whether\n\nthere was \"a close or significant relationship between the federal\n\nand Puerto Rico prosecutors during the local suppression\n\n[proceedings] or whether the federal authorities controlled or\n\nactively participated in [those proceedings] such that their\n\ninterests in enforcing federal law were sufficiently represented.\"\n\nId. at 44. Because nothing suggests this happened in Santiago's\n\ncase, we find that there was no privity between the two prosecuting\n\nauthorities and, thus, collateral estoppel is not applicable.\n\n III. Conclusion\n\n For the foregoing reasons, we reverse and vacate the\n\ndistrict court's order and find that, because there was no privity\n\n\n -40-\n\fbetween the two prosecuting authorities, collateral estoppel is\n\ninapplicable. We remand the case to the district court for\n\nproceedings consistent with this decision.\n\n Reversed, Vacated and Remanded.\n\n\n\n\n -41-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellant, v. David SANTIAGO-COLÓN, Defendant, Appellee.\\nCourt: U.S. Court of Appeals for the First Circuit\\nDate decided: 2019-02-28\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nUnited States Court of Appeals\\n For the First Circuit\\n\\nNo. 16-2509\\n\\n UNITED STATES OF AMERICA,\\n\\n Appellant,\\n\\n v.\\n\\n DAVID SANTIAGO-COLÓN,\\n\\n Defendant, Appellee.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE DISTRICT OF PUERTO RICO\\n [Hon. Gustavo A. Gelpí, U.S. District Judge]\\n\\n\\n Before\\n\\n Torruella, Thompson, and Kayatta,\\n Circuit Judges.\\n\\n\\n John P. Taddei, Attorney, Appellate Section Criminal\\nDivision, U.S. Department of Justice, with whom Kenneth A. Blanco,\\nActing Assistant Attorney General, Trevor N. McFadden, Acting\\nPrincipal Deputy Assistant Attorney General, Rosa E. Rodríguez-\\nVélez, United States Attorney, and Mariana E. Bauzá-Almonte,\\nAssistant United States Attorney, Chief, Appellate Section, were\\non brief, for appellant.\\n Andrew S. McCutcheon, Assistant Federal Public Defender, with\\nwhom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric\\nAlexander Vos, Federal Public Defender, and Vivianne M. Marrero-\\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\\nSection, were on brief, for appellee.\\n\\n\\n February 28, 2019\\n\\f TORRUELLA, Circuit Judge. The United States appeals the\\n\\ndistrict court's order granting David Santiago-Colón's\\n\\n(\\\"Santiago\\\") motion to suppress identification evidence, giving\\n\\npreclusive effect to a Puerto Rico Court of Appeals's order\\n\\nsuppressing this same evidence in a local proceeding for different\\n\\noffenses. According to the district court, inasmuch as Puerto\\n\\nRico and the United States are a single sovereign for purposes of\\n\\nthe Double Jeopardy Clause, Puerto Rico v. Sánchez Valle,\\n\\n136 S. Ct. 1863, 1869-77 (2016), it was bound by the local court's\\n\\nfinal judgment suppressing identification evidence, even though\\n\\nfederal prosecutors \\\"did not participate in the [Puerto Rico] court\\n\\ncriminal proceedings against Santiago.\\\" United States v.\\n\\nSantiago-Colón, 213 F. Supp. 3d 297, 298 (D.P.R. 2016). In so\\n\\nruling, the district court deviated from our on-point precedent\\n\\nholding that suppression of evidence by a Puerto Rico court does\\n\\nnot require a federal court to suppress that same evidence unless\\n\\nfederal prosecutors were a party, or were in privity with a party,\\n\\nto the suppression hearing in the Puerto Rico court, United States\\n\\nv. Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987), which was\\n\\nnot the case here. Sánchez Valle, moreover, did not change the\\n\\nlaw in this area. Accordingly, we reverse and vacate the district\\n\\ncourt's suppression order.\\n\\n\\t\\n\\n\\n -2-\\n\\f I. Background\\n\\nA. Factual Background\\n\\n On January 13, 2013, Puerto Rico Police Department Agent\\n\\nCarlos Sepúlveda-Rivera (\\\"Sepúlveda\\\") was off-duty at La Casita,\\n\\na bar in Villalba, Puerto Rico, when he got into an altercation\\n\\nwith two men. Sepúlveda and the two men exchanged gunfire. After\\n\\nthe men shot Sepúlveda four times, he was transported to the\\n\\nhospital for treatment of his injuries. Sergeant Pedro Quiles-\\n\\nTorres (\\\"Quiles\\\") interviewed Sepúlveda at the hospital later that\\n\\nday. During his interview, Sepúlveda provided a description of\\n\\nhis two assailants. 1 Based on the descriptions provided by\\n\\nSepúlveda and a review of the security video footage of La Casita,\\n\\n\\n\\n1 According to the government, on the same evening the shootout\\noccurred, Sepúlveda provided a description of the shooters'\\nphysical characteristics and attire. He described one of his\\nassailants, later identified as Santiago, as slim, tall, wearing\\na jacket, a black sweater, and short blue pants. Sepúlveda also\\nstated that, although he could not remember their names, he knew\\nboth assailants. Sepúlveda explained that he knew Santiago\\nbecause he played basketball for the team of La Sierra, the\\nneighborhood where Sepúlveda resides, and that he was called\\n\\\"Cabezón\\\" (Spanish for \\\"Big Head\\\"). Sepúlveda also stated that\\nSantiago was either the son-in-law or former son-in-law of the\\nformer mayor of Villalba. Indeed, Santiago's known nickname is\\n\\\"Cabezón,\\\" he played for La Sierra basketball team, and was related\\nto the former mayor of Villalba. As to the second assailant,\\nlater identified as Richard Cartagena-Suárez, Sepúlveda provided\\na physical description, described his clothing at the time of the\\nincident, and stated that he knew him because Sepúlveda had\\npreviously assisted in the individual's arrest for an unrelated\\noffense.\\n\\n\\n -3-\\n\\flocal law enforcement agents identified Santiago and Richard\\n\\nCartagena-Suárez (\\\"Cartagena\\\") as the shooters. The next day,\\n\\nQuiles showed two photo arrays to Sepúlveda, each of them\\n\\ncontaining nine photos. One array included Santiago's photo, and\\n\\nthe other one included Cartagena's. Sepúlveda picked Santiago and\\n\\nCartagena from the photo arrays.\\n\\nB. Local Case\\n\\n Puerto Rico prosecutors charged Santiago with attempted\\n\\nfirst-degree murder, carrying and using a firearm without a\\n\\nlicense, and discharging or pointing a firearm, in violation of\\n\\nPuerto Rico law. Santiago moved to suppress Sepúlveda's\\n\\nidentification of him on the grounds that it was obtained in\\n\\ncontravention of the Puerto Rico Rules of Criminal Procedure. The\\n\\nlocal prosecution opposed. The local trial court held a three-\\n\\nday evidentiary hearing, in which four witnesses (including\\n\\nSepúlveda and Quiles) testified. After the local trial court\\n\\ndenied suppression, Santiago appealed to the Puerto Rico Court of\\n\\nAppeals. The Puerto Rico Court of Appeals then reversed and\\n\\nsuppressed the identification evidence. It noted some\\n\\ncontradictions in Sepúlveda's testimony, concluded that\\n\\nSepúlveda's identification of Santiago \\\"and the photographic line\\n\\nup led by Sergeant Quiles were not trustworthy pursuant to the\\n\\ncriteria established by . . . [the Puerto Rico] Supreme Court in\\n\\n\\n -4-\\n\\fPueblo v. Hernández González,\\\" 2009 WL 197570 (2009)\\n\\n(untranslated), and remanded the case to the local trial court.\\n\\nSee App. at 65, 84, May 18, 2017, No. 16-2509 (certified\\n\\ntranslation of People v. Santiago-Colón, KLCE 2014-00130, 2014 WL\\n\\n5438091 at *13, 20 (P.R. Ct. of App. Sept. 30, 2014)). The Puerto\\n\\nRico Supreme Court declined to intervene, and the case was later\\n\\ndismissed.\\n\\nC. Federal Case\\n\\n Based on the January 13, 2013 incident, a federal grand\\n\\njury returned an indictment on June 4, 2015, charging Santiago\\n\\nwith being a felon in possession of a firearm and ammunition, in\\n\\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2 Santiago moved\\n\\nto suppress Sepúlveda's out-of-court identification and to prevent\\n\\nSepúlveda from identifying him in court. He argued that the\\n\\nidentification procedure had been unduly suggestive, that the\\n\\nPuerto Rico Court of Appeals had already considered and rejected\\n\\nthe testimony of Sepúlveda and Quiles -- \\\"the only witnesses who\\n\\n[could] provide material testimony on the issues relevant to the\\n\\ncase at bar\\\" -- and that said determination was final. Urging the\\n\\ncourt to apply a standard like the one used when reviewing habeas\\n\\n\\n\\n2 Santiago was indicted after the Puerto Rico Court of Appeals\\nissued its opinion suppressing his identification, but before the\\nlocal case was dismissed.\\n\\n\\n -5-\\n\\fcorpus petitions, Santiago argued that \\\"disagreement alone is not\\n\\nenough\\\" for a federal court to ignore a state court's credibility\\n\\ndetermination. Rather, \\\"[t]he federal court must conclude not\\n\\nonly that the state court's determination was wrong, but that it\\n\\nwas unreasonable in light of the evidence presented.\\\" Because,\\n\\naccording to Santiago, the Puerto Rico Court of Appeals's decision\\n\\nwas not unreasonable, he urged the district court to \\\"defer\\\" to\\n\\nthe \\\"findings made by Puerto Rico's courts,\\\" suppress Sepúlveda's\\n\\nout-of-court identification of Santiago, and preclude Sepúlveda\\n\\nfrom identifying Santiago in court.\\n\\n The government opposed the motion, arguing that Santiago\\n\\nhad failed to show that \\\"the identification procedure was\\n\\nimpermissibly suggestive under federal law\\\" and that, in fact, the\\n\\nprocedure was reliable. The government also noted that the Puerto\\n\\nRico Court of Appeals, in reversing the trial court, failed to\\n\\ngive due deference to the trial judge's findings of fact and\\n\\ntherefore misapplied Puerto Rico law. Additionally, the\\n\\ngovernment pointed out that Sepúlveda knew the perpetrators before\\n\\nthe shootout and identified Santiago by his nickname, supporting\\n\\nthe reliability of the identification.\\n\\n On October 4, 2016, without holding a hearing, the\\n\\ndistrict court granted Santiago's \\\"request to suppress\\n\\nidentification.\\\" That order was followed by an opinion entered\\n\\n\\n -6-\\n\\fthe same day. Santiago-Colón, 213 F. Supp. 3d 297. In its opinion,\\n\\nthe district court noted that in Sánchez Valle the U.S. Supreme\\n\\nCourt held that \\\"for purposes of the Double Jeopardy Clause, the\\n\\n[Puerto Rico] and United States governments constitute a single\\n\\nsovereign, in as much [sic] as the former's power to prosecute\\n\\nderives from the latter's.\\\" Id. at 297. The district court\\n\\nconcluded that it \\\"must give the [Puerto Rico] court suppression\\n\\nfindings and judgment preclusive effect\\\" because \\\"[n]ot doing so\\n\\nwould ignore the constitutional reality that indeed [Puerto Rico]\\n\\nand [the] United States are but one sovereign when it comes to\\n\\ncriminally prosecuting individuals.\\\" Id. at 298. It further\\n\\nnoted that, although federal prosecutors \\\"did not participate in\\n\\nthe [Puerto Rico] court criminal proceedings against [Santiago],\\n\\ntheir local counterparts in fact did\\\" and \\\"[t]heir authority to do\\n\\nso ultimately emanates from the United States.\\\" Id. (citing\\n\\nSánchez Valle, 136 S. Ct. at 1863). The district court's order\\n\\nset a pre-trial conference for November 9, 2016 \\\"to discuss if the\\n\\nGovernment ha[d] independent evidence to proceed with its\\n\\nprosecution, or if it will appeal the Court's suppression order.\\\"3\\n\\n On November 10, 2016, the district court held the pre-\\n\\ntrial conference. At the beginning of the conference, the\\n\\n\\n3 That pre-trial conference was later rescheduled for November 10,\\n2016.\\n\\n\\n -7-\\n\\fdistrict court stated that it believed \\\"there[] [was] a basis\\\" for\\n\\nfiling an interlocutory appeal. The government argued that the\\n\\ndistrict court's suppression of Santiago's identification was\\n\\ncontrary to binding First Circuit precedent applying collateral\\n\\nestoppel principles, including Bonilla Romero, 836 F.2d 39, and\\n\\nUnited States v. Pérez-Pérez, 72 F.3d 224 (1st Cir. 1995), and\\n\\nthat Sánchez Valle did not change the law. The district court\\n\\nrejected the government's arguments and clarified that the court's\\n\\ndecision was not based on collateral estoppel, but \\\"on an\\n\\nassumption that it's the same sovereign.\\\" According to the\\n\\ndistrict court, because under Sánchez Valle Puerto Rico and the\\n\\nUnited States are \\\"a single sovereign,\\\" the Puerto Rico court's\\n\\nsuppression findings and judgment have preclusive effect on a\\n\\nsubsequent federal prosecution and bind the district court.4\\n\\n The court then inquired whether the government had\\n\\nindependent evidence to proceed to trial. The government\\n\\nresponded that even though the court had suppressed Sepúlveda's\\n\\nout-of-court identification of Santiago, it \\\"would like to proceed\\n\\nto trial\\\" with the in-court identification, because Sepúlveda knew\\n\\n\\n\\n4 In the district court's words, although the local court's\\ndecision \\\"may be a wrong ruling . . . it's still a ruling that's\\nfinal,\\\" it \\\"binds the [f]ederal [g]overnment,\\\" and precludes\\nrelitigation of the issue in federal court even if the district\\ncourt \\\"disagree[s] with [the ruling].\\\"\\n\\n\\n -8-\\n\\fSantiago prior to the January 13th incident and before he saw the\\n\\nphoto array. The government also indicated that it could use the\\n\\nsecurity video footage allegedly showing Santiago at the crime\\n\\nscene. Santiago responded that he thought the district court had\\n\\nsuppressed both the out-of-court identification (product of the\\n\\nphoto array) as well as any in-court identification because the\\n\\nPuerto Rico Court of Appeals had allegedly suppressed both\\n\\nidentifications. After reviewing again the decision from the\\n\\nPuerto Rico Court of Appeals, the district court concluded that\\n\\nthe Puerto Rico Court of Appeals had suppressed both Sepúlveda's\\n\\nout-of-court and in-court identifications of Santiago, and\\n\\nresolved to do the same. The court further stated that it would\\n\\n\\\"supplement\\\" its suppression order.\\n\\n The district court noted that if the government had no\\n\\nindependent evidence to identify Santiago at trial, the \\\"course to\\n\\nproceed would be for the government to file a notice of appeal,\\\"\\n\\nbecause the issue was \\\"definitely capable of repetition,\\\" would\\n\\n\\\"continue happening,\\\" and was \\\"appealable interlocutorily.\\\"\\n\\nAdditionally, it noted that \\\"[t]his may be the best case to do\\n\\nit.\\\" Santiago agreed that the government \\\"should go up to the\\n\\nFirst Circuit to clarify th[e] issue.\\\"\\n\\n Consistent with its statements during the pre-trial\\n\\nconference, later that day the district court entered an order\\n\\n\\n -9-\\n\\fsupplementing its October 4th order by clarifying that its\\n\\nsuppression order was \\\"based on the single sovereign doctrine and\\n\\nnot on collateral estoppel\\\" and \\\"extend[ed] to both the in-court\\n\\nidentification by . . . Sepúlveda . . . , as well as the photo\\n\\nidentification.\\\" On December 2, 2016, the government filed its\\n\\nnotice of appeal, stating that it was appealing from the order\\n\\nentered on November 10, 2016. On November 15, 2017, the government\\n\\nfiled a certification under 18 U.S.C. § 3731 with the district\\n\\ncourt, in which the United States Attorney certified that \\\"the\\n\\nappeal is not taken for the purpose of delay and that the evidence\\n\\n[suppressed] is a substantial proof of a fact material in the\\n\\nproceeding.\\\"\\n\\n On appeal, the government claims the district court's\\n\\norder suppressing any in-court identification of Santiago as the\\n\\nshooter should be reversed because it is contrary to First Circuit\\n\\nprecedent, which has held that whether suppression of evidence by\\n\\na local court has preclusive effect in a federal proceeding is an\\n\\nissue of collateral estoppel, not double jeopardy. It further\\n\\nclaims that, under collateral estoppel principles, the suppression\\n\\nof the identification evidence was improper because the two\\n\\nprosecuting authorities were not in privity.5\\n\\n\\n5 The government does not appeal the suppression of Sepúlveda's\\nout-of-court identification of Santiago.\\n\\n\\n -10-\\n\\f II. Discussion\\n\\nA. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731\\n Certification Requirement\\n\\n Santiago claims that this court lacks jurisdiction to\\n\\nentertain this appeal because the government filed an untimely\\n\\nnotice of appeal and failed to comply with the certification\\n\\nrequirements under 18 U.S.C. § 3731. We address each procedural\\n\\nchallenge in turn.\\n\\n i. Standard of Review and Applicable Law\\n\\n This court must verify that it has appellate\\n\\njurisdiction before addressing the merits of any appeal. Espinal-\\n\\nDomínguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003).\\n\\n\\\"Jurisdiction is a question of law subject to de novo review.\\\"\\n\\nUnited States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).\\n\\n The Criminal Appeals Act establishes in relevant part\\n\\nthat:\\n\\n An appeal by the United States shall lie to a court of\\n appeals from a decision or order of a district court\\n suppressing or excluding evidence . . ., not made after\\n the defendant has been put in jeopardy and before the\\n verdict or finding on an indictment or information, if\\n the United States attorney certifies to the district\\n court that the appeal is not taken for purpose of delay\\n and that the evidence is a substantial proof of a fact\\n material in the proceeding.\\n\\n . . .\\n\\n The appeal in all such cases shall be taken within thirty\\n days after the decision, judgment or order has been\\n rendered and shall be diligently prosecuted.\\n\\n -11-\\n\\f The provisions of this section shall be liberally\\n construed to effectuate its purposes.\\n\\n18 U.S.C. § 3731.\\n\\n The government is allowed to take an interlocutory\\n\\nappeal from suppression and exclusion orders in certain\\n\\ncircumstances to remedy the \\\"imbalance created by the\\n\\npeculiarities of criminal procedure.\\\" United States v. Watson,\\n\\n386 F.3d 304, 308 (1st Cir. 2004). While a criminal defendant who\\n\\nhad unsuccessfully sought suppression of evidence before trial\\n\\ncould appeal the denial of the suppression if he was convicted,\\n\\ndouble jeopardy principles preclude the government from appealing\\n\\na pre-trial order suppressing evidence in the event of an\\n\\nunfavorable verdict at trial. Id. Because \\\"Congress became\\n\\nconcerned about both this disparity and the lack of uniform\\n\\nstandards of admissibility that resulted from it,\\\" id., it amended\\n\\nthe Criminal Appeals Act in 1968 to allow the government to appeal\\n\\na pre-trial suppression or exclusion order, id. at 308-09. In\\n\\n1970, Congress further amended the Criminal Appeals Act to remedy\\n\\nthe courts' then-narrow interpretation of § 3731 and to include an\\n\\nexplicit \\\"command to construe the statute liberally,\\\" id. at 309,\\n\\nwhich this court has construed \\\"as a cue to put substance ahead of\\n\\nform\\\" in deciding whether it has jurisdiction to entertain an\\n\\nappeal, id. at 310; United States v. Kane, 646 F.2d 4, 7 (1st\\n\\n\\n -12-\\n\\fCir. 1981) (noting that \\\"the liberal construction provision\\\"\\n\\ndictates \\\"a practical, rather than formalistic, application\\\").\\n\\n ii. Timeliness Issue\\n\\n Santiago argues that the government's notice of appeal\\n\\nwas untimely because it was filed more than thirty days after the\\n\\ndistrict court entered its October 4th order. According to\\n\\nSantiago, on October 4, 2016, the district court granted his motion\\n\\nto suppress, which sought to suppress not only Sepúlveda's out-\\n\\nof-court identification of him (the photo array), but also sought\\n\\nto prevent Sepúlveda from identifying him in court. Santiago\\n\\nargues that the government, however, failed to file a notice of\\n\\nappeal, or request clarification or reconsideration of the order,\\n\\nuntil after the thirty-day window provided in 18 U.S.C. § 3731 had\\n\\nexpired.\\n\\n Santiago acknowledges that \\\"when the lower court changes\\n\\nmatters of substance, or resolves a genuine ambiguity\\\" in an\\n\\notherwise appealable order, \\\"the period within which an appeal\\n\\nmust be taken . . . begin[s] to run anew,\\\" see Fed. Trade Comm'n\\n\\nv. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12\\n\\n(1952), but argues that such is not the case here. He contends\\n\\nthat while the government attempts to draw a distinction between\\n\\nthe October 4th and November 10th orders -- characterizing the\\n\\nformer as suppressing only the out-of-court identification and the\\n\\n\\n -13-\\n\\flatter as further suppressing any in-court identification by\\n\\nSepúlveda -- such distinction is inappropriate because the order\\n\\non November 10th did not materially change the October 4th order.\\n\\nThe November 10th order, Santiago insists, merely reiterated that\\n\\nthe prior suppression ruling included both the out-of-court and\\n\\nthe in-court identifications, which does not serve to start the\\n\\nclock anew for appellate purposes.\\n\\n In response, the government argues that the notice of\\n\\nappeal was timely because it was filed within thirty days of the\\n\\nNovember 10th order, which it characterizes as a \\\"'supplement[al]'\\n\\nsuppression order\\\" that \\\"materially amended the original October 4\\n\\norders by suppressing evidence that was not covered by the original\\n\\norders.\\\"\\n\\n The government states that neither the Puerto Rico Court\\n\\nof Appeals's opinion nor the district court's October 4th order\\n\\n\\\"specifically addressed whether Agent Sepúlveda would be\\n\\nprohibited from identifying Santiago\\\" at trial. According to the\\n\\ngovernment, the \\\"ambiguous\\\" language of the Puerto Rico Court of\\n\\nAppeals's opinion and the district court's October 4th order, in\\n\\nconjunction with the district court's simultaneous scheduling of\\n\\na pre-trial conference to discuss whether the government had\\n\\nindependent evidence to proceed with its prosecution, as well as\\n\\nfederal case law suggesting that suppression of an out-of-court\\n\\n\\n -14-\\n\\fidentification by a witness does not necessarily preclude an in-\\n\\ncourt identification by the same witness, led it to believe that\\n\\nonly the photo array evidence had been suppressed. The government\\n\\nsubmits that the October 4th order was so ambiguous that the\\n\\ndistrict court had to re-read the Puerto Rico Court of Appeals's\\n\\nopinion in order to determine whether its October 4th order also\\n\\nencompassed the in-court identification. The government further\\n\\nargues that if the October 4th order had been clear, as Santiago\\n\\nclaims, \\\"it would have been unnecessary for the district court to\\n\\n'issue a supplement[al] order clarifying' its original ruling\\\" and\\n\\nthat the order itself stated that it was a \\\"supplement\\\" to the\\n\\nOctober 4th order, which \\\"extend[ed]\\\" suppression to in-court\\n\\nidentification.\\n\\n We are persuaded by the government's arguments. The\\n\\nOctober 4th order did not specify the scope of the suppression,\\n\\nand the Puerto Rico Court of Appeals's opinion, on which the\\n\\ndistrict court relied, was ambiguous as to whether it also\\n\\nprecluded Sepúlveda from identifying Santiago in court. In fact,\\n\\nthe opinion of the Puerto Rico Court of Appeals gave the impression\\n\\nthat only the photographic lineup identification had been\\n\\nsuppressed.6\\n\\n\\n6 The Puerto Rico Court of Appeals's opinion stated as follows:\\n\\n [P]etitioners filed a Motion to Suppress Identification\\n\\n -15-\\n\\f In addition, as the government contends, suppression of\\n\\na photographic lineup identification does not necessarily require\\n\\nexclusion of an in-court identification provided that the\\n\\nprosecution can \\\"establish by clear and convincing evidence that\\n\\nthe in-court identification[] w[as] based upon observations of the\\n\\nsuspect other than the lineup identification.\\\" Moore v. Illinois,\\n\\n434 U.S. 220, 225-26 (1977) (quoting United States v. Wade,\\n\\n388 U.S. 218, 240 (1967)). Hence, this supports the government's\\n\\nunderstanding that only the out-of-court identification had been\\n\\nsuppressed, and Sepúlveda could identify Santiago in court based\\n\\non his knowledge of Santiago prior to the photo array.\\n\\n Furthermore, as the government argues, the district\\n\\ncourt's scheduling of a pre-trial conference to discuss whether\\n\\nthe government had additional evidence to proceed to trial, as\\n\\nwell as the events that transpired during that pre-trial\\n\\n\\n . . . alleg[ing] that . . . they were identified through\\n photographs the day after the facts . . . [and] . . .\\n that the process was 'severely vitiated' [in] that it\\n did not comply with the provisions of Rule 252.2 of\\n [Puerto Rico] Criminal Procedure Rules. . . . [W]e\\n conclude that the identification that Agent Sepúlveda\\n Rivera made of . . . Santiago . . . and the photographic\\n line up [sic] led by Sergeant Quiles were not trustworthy\\n pursuant to the criteria established by our Supreme\\n Court in Pueblo v. Hernández González. . . . [Thus, the\\n trial court's] resolution is vacated and set aside and\\n in its consequence, the suppression of the\\n identification of petitioners is ordered.\\n\\nApp. at 41, 84, May 18, 2017, No. 16-2509.\\n\\n -16-\\n\\fconference, also support the government's interpretation that the\\n\\nOctober 4th order had not suppressed all of the identification\\n\\nevidence. At the November 10th conference, the parties disputed\\n\\nthe scope of the October 4th suppression order. When the\\n\\ngovernment stated that it believed the order had suppressed the\\n\\nout-of-court identification only, the district court did not\\n\\nclarify that it had also suppressed the in-court identification.\\n\\nInstead, the court decided to hear from defense counsel. In fact,\\n\\neven after defense counsel argued that the October 4th order\\n\\n\\\"clear[ly]\\\" suppressed both identifications, the court stated as\\n\\nfollows:\\n\\n [I]f the government wants to proceed to trial, what I\\n need then is for the government to file a motion and\\n inform what witnesses are going to testify and if they're\\n going to identify him in court or not so the defense can\\n adequately respond. And then I can either -- either\\n I'll grant it or deny it. And if I deny it and basically\\n I'm suppressing everything, then the government can\\n still appeal.\\n\\n The district court then took a brief recess to review\\n\\nthe opinion from the Puerto Rico Court of Appeals in order to\\n\\nascertain the scope of its own suppression order. It was after\\n\\nreviewing again the opinion from the Puerto Rico Court of Appeals\\n\\nthat the district court stated that it would suppress both\\n\\nidentifications. It found that a \\\"supplement[al] order\\n\\nclarifying\\\" its original order was warranted. The court deemed\\n\\nit appropriate to clarify that its ruling was based \\\"on the single\\n\\n -17-\\n\\fsovereign doctrine, not on collateral estoppel,\\\" and that its\\n\\n\\\"suppression ruling would include the identification of Agent\\n\\nSepúlveda of the defendant, as well as his . . . photo . . .\\n\\nidentification.\\\" It is worth noting that the court stated its\\n\\nsuppression ruling \\\"would include,\\\" and not that it \\\"included\\\" or\\n\\n\\\"had included,\\\" the in-court identification. Therefore, the\\n\\ncourt's chosen language supports the government's contention that\\n\\nthe original order did not include the in-court identification.\\n\\nThe court then proceeded to issue a supplemental order clarifying\\n\\nits October 4th order to these effects. See Dkt. No. 70,\\n\\nUnited States v. Santiago-Colón, 15-cv-00396 (\\\"supplement[ing] its\\n\\nruling [of October 4th] . . . to the effect that that the same\\n\\n[was] based on the single sovereign doctrine and not on collateral\\n\\nestoppel\\\" and \\\"hold[ing] that its suppression extends to both the\\n\\nin-court identification by Agent Sepúlveda Rivera, as well as the\\n\\nphoto identification\\\").7\\n\\n Considering the record as a whole, we hold that the\\n\\nNovember 10th order amended or materially changed the October 4th\\n\\norder, which had the effect of restarting the thirty-day clock.\\n\\n\\n\\n7 The court used the language \\\"the Court holds\\\" as if it was\\ndetermining the scope of the suppression for the first time,\\ninstead of using language such as \\\"clarifies,\\\" which would suggest\\nthat the decision had been previously taken. Dkt. No. 70,\\nUnited States v. Santiago-Colón, 15-cv-00396 (emphasis added).\\n\\n\\n -18-\\n\\fThis makes timely the government's notice of appeal of the\\n\\nNovember 10th order. See United States v. Cheal, 389 F.3d 35, 53\\n\\n(1st Cir. 2004) (noting that courts are encouraged \\\"to construe\\n\\nnotices of appeal liberally and examine them in the context of the\\n\\nrecord as a whole\\\" (quoting Chamorro v. Puerto Rican Cars, Inc.,\\n\\n304 F.3d 1, 3 (1st Cir. 2002))).\\n\\n iii. 18 U.S.C. § 3731 Certification Issue\\n\\n Santiago also argues that this court lacks jurisdiction\\n\\nto entertain the interlocutory appeal because the United States\\n\\nAttorney did not timely file a § 3731 certification with the\\n\\ndistrict court certifying that the appeal was not taken to delay\\n\\nthe proceedings and that the evidence suppressed is substantial\\n\\nproof of a material fact. Santiago acknowledges that this court\\n\\nhas not addressed whether certification is a pre-condition to\\n\\nappellate jurisdiction but argues that we should treat it as such.\\n\\nHe further argues that even if we were to treat non-compliance\\n\\nwith the certification requirement as a \\\"filing irregularity\\\"\\n\\ngoverned by Federal Rule of Appellate Procedure 3(a) -- which would\\n\\nleave any appropriate action, including dismissal of the appeal,\\n\\nto the court's sound discretion -- we should not condone the\\n\\ngovernment's \\\"disregard for diligence.\\\"\\n\\n In response, the government acknowledges that it filed\\n\\nthe § 3731 certification belatedly, after Santiago pointed out the\\n\\n\\n -19-\\n\\fgovernment's non-compliance with the certification requirement in\\n\\nhis response brief, and apologizes for the late filing.8 But, the\\n\\ngovernment claims that such late filing does not require dismissal\\n\\nof the appeal.\\n\\n The government notes that \\\"[t]he purpose of the\\n\\ncertification requirement is to ensure that the prosecutor\\n\\ncarefully analyzed the case before deciding to appeal\\\" and that,\\n\\ndespite its belated filing of the § 3731 certification, the\\n\\ngovernment did comply with the substance of § 3731 before it filed\\n\\nits notice of appeal. It points out that the Solicitor General,\\n\\nwho decides whether the government will seek appellate review in\\n\\na given case, \\\"considers a variety of factors, such as the limited\\n\\nresources of the government and the crowded dockets of the courts,\\n\\nbefore authorizing an appeal,\\\" and that this deliberative process\\n\\nwas followed here, when the Acting Solicitor General approved\\n\\nfiling an appeal on April 19, 2017. It further points out that\\n\\nthe Criminal Division of the United States Attorney's Office also\\n\\n\\\"thorough[ly] review[ed]\\\" this case before the government decided\\n\\nto file its notice of appeal.\\n\\n\\n8 The government explains that at the time it filed its notice of\\nappeal, counsel of record was a Special Assistant United States\\nAttorney (\\\"SAUSA\\\") on detail from the Puerto Rico Department of\\nJustice who was inexperienced in federal appellate procedures, and\\nthe government first became aware of the missing certification\\nwhen Santiago raised the issue in his response brief.\\n\\n\\n -20-\\n\\f The government contends that most appellate courts that\\n\\nhave addressed the issue have not treated the certification as a\\n\\njurisdictional requirement. Rather, \\\"[t]hey have held that\\n\\nwhether dismissal is an appropriate remedy is a matter that falls\\n\\nwithin the court's discretion.\\\"\\n\\n Furthermore, the government points us to United States\\n\\nv. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), in which this court\\n\\nrejected the argument that dismissal was warranted because the\\n\\nUnited States Attorney had not personally signed the § 3731\\n\\ncertification filed with the district court. It notes that in\\n\\nCrespo-Ríos the court gave weight to the deliberative process the\\n\\ngovernment underwent before filing its appeal (including review by\\n\\nthe United States Attorney and the Solicitor General), as well as\\n\\nto Congress's mandate that § 3731 be construed liberally. The\\n\\ngovernment argues that both considerations are present in this\\n\\ncase and thus urges us to consider the appeal on its merits.\\n\\n It is uncontested that the government filed its § 3731\\n\\ncertification belatedly. However, in light of Congress's mandate\\n\\nthat 18 U.S.C. § 3731 be \\\"liberally construed to effectuate its\\n\\npurposes,\\\" we decline Santiago's invitation to treat the\\n\\ncertification as a jurisdictional requirement. Instead, we join\\n\\nmost of the circuits that have addressed the issue and leave it to\\n\\nthe court's sound discretion to determine whether dismissal of an\\n\\n\\n -21-\\n\\fappeal for failure to comply with the § 3731 certification\\n\\nrequirement is appropriate in a particular case. See, e.g.,\\n\\nUnited States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per\\n\\ncuriam) (refusing to treat § 3731's certification requirement as\\n\\njurisdictional and exercising appellate jurisdiction even though\\n\\nthe United States Attorney's certification was filed after the\\n\\ndefendant-appellee had already filed his brief, because the\\n\\nSolicitor General had authorized the appeal and there seemed to be\\n\\nno prejudice resulting from the belated filing); see also\\n\\nUnited States v. McNeill, 484 F.3d 301, 309 (4th Cir. 2007) (noting\\n\\nthat failure to file a timely § 3731 certification does not deprive\\n\\nthe court of jurisdiction over the appeal, but \\\"is a ground for\\n\\nthe court of appeals to act as it considers appropriate\\\") (internal\\n\\nquotation marks and citation omitted); United States v. Smith,\\n\\n263 F.3d 571, 578 (6th Cir. 2001) (treating a failure to timely\\n\\nfile a § 3731 as \\\"an irregularity in perfecting [an] appeal\\\" and\\n\\nnoting that its \\\"sister circuits have consistently held that the\\n\\ndelayed filing of a section 3731 certificate, although disfavored,\\n\\ndoes not divest appellate courts of their jurisdiction\\\")\\n\\n(collecting cases).\\n\\n Here, we find that dismissal of the appeal is\\n\\nunwarranted. This case presents an important issue that, as the\\n\\ndistrict court acknowledged, is \\\"definitely capable of repetition\\\"\\n\\n\\n -22-\\n\\fand would \\\"continue happening.\\\" In fact, the United States\\n\\nDistrict Court for the District of Puerto Rico is already split as\\n\\nto how to resolve this issue of law.9 Moreover, this case presents\\n\\na question of law and, as the district court stated, \\\"[t]his may\\n\\nbe the best case to [decide the issue],\\\" which has been fully\\n\\nbriefed. We note that although the government failed to file the\\n\\nrequired certification at the time it filed its notice of appeal,\\n\\nit complied with the substance and purpose of the certification\\n\\nrequirement. As the government explained, before it filed its\\n\\nbrief, the government engaged in the deliberative process to\\n\\ndetermine whether the issue should be taken on appeal. Compliance\\n\\nwith the essence of this deliberative process, as well as the\\n\\nmandate to construe the statute liberally, were determinative\\n\\nfactors in Crespo-Ríos. 645 F.3d at 44 n.6. Furthermore, the\\n\\ngovernment's failure to timely file the § 3731 certification has\\n\\nin no way prejudiced Santiago.10 See Smith, 263 F.3d at 578 (noting\\n\\n\\n9 In United States v. Rosado-Cancel, the district court rejected\\nthe defendant's argument that federal firearms charges should be\\ndismissed under Sánchez-Valle because a Puerto Rico court had\\nalready dismissed parallel Puerto Rico firearms charges for lack\\nof probable cause. No. 13-731, 2017 WL 543199, at *7 (D.P.R.\\nFeb. 10, 2017) (Domínguez, J.). Relying on our holding in Bonilla\\nRomero, the district court held that \\\"any issue preclusion argument\\n. . . would . . . fail on lack-of-privity grounds.\\\" Id.\\n10 Santiago claims to have been prejudiced by the government's\\nbelated filing of its § 3731 certification because he has remained\\nimprisoned during the pendency of the government's appeal. He has\\nfailed, however, to explain how his situation would have been\\n\\n -23-\\n\\fthat \\\"[i]n exercising their discretion, courts typically consider\\n\\na variety of factors, including: when the certificate was filed;\\n\\nthe reason for the failure to timely file it; whether the\\n\\ngovernment did in fact engage in a conscientious pre-appeal\\n\\nanalysis; whether the government acknowledges that the\\n\\ncertification requirement should be taken seriously; any delay or\\n\\nprejudice to the defendant; whether the appeal raises important\\n\\nlegal issues needing appellate clarification; and whether the\\n\\nappeal should be heard in the interest of justice, or for any other\\n\\nsignificant reason\\\") (internal quotation marks omitted).\\n\\n Finding no procedural issue that divests us of\\n\\njurisdiction, we now turn to the merits of this appeal.\\n\\nB. Suppression Issue\\n\\n The government argues that the district court's\\n\\nconclusion -- that because Puerto Rico and the United States are\\n\\na single sovereign for purposes of the Double Jeopardy Clause,\\n\\nsuppression rulings by Puerto Rico courts are binding in federal\\n\\nprosecutions -- is unsupported by Sánchez Valle and contrary to\\n\\nlongstanding First Circuit precedent.\\n\\n\\n\\n\\ndifferent had the government timely complied with the\\ncertification requirement. Thus, Santiago has not shown any\\nprejudice stemming from the belated filing.\\n\\n\\n -24-\\n\\f According to the government, Sánchez Valle does not hold\\n\\nthat Puerto Rico and the United States are the same for purposes\\n\\nof all criminal law enforcement and procedure. Instead, it\\n\\nnarrowly held that they are a single sovereign for double jeopardy\\n\\npurposes, which the government posits has no bearing in this case.\\n\\nThe government argues that the doctrine of collateral estoppel is\\n\\ncontrolling, as held in \\\"two precedential decisions\\\" which it\\n\\nclaims are still binding: Bonilla Romero, 836 F.2d at 42-43, and\\n\\nPérez-Pérez, 72 F.3d at 226. Under a collateral estoppel\\n\\nanalysis, the government urges us to find that the district court\\n\\nwas not collaterally estopped by the local court's suppression\\n\\ndecision because the United States was neither a party, nor in\\n\\nprivity with a party, at the local suppression proceedings.\\n\\n Santiago agrees with the government that \\\"the doctrine\\n\\nof collateral estoppel controls this case rather than double\\n\\njeopardy.\\\" He notes that the district court \\\"conflate[d] the\\n\\ntwo,\\\" but argues that its ruling is nevertheless \\\"clear.\\\"\\n\\nSantiago further argues that Sánchez Valle confirmed that Puerto\\n\\nRico \\\"has what amounts to an agency relationship with the federal\\n\\ngovernment.\\\" Yet, because Bonilla Romero predates Sánchez Valle,\\n\\nthe former \\\"did not fully confront Puerto Rico's agency\\n\\nrelationship with the United States\\\" and thus should not be\\n\\ncontrolling. Santiago submits that, in any event, even if Bonilla\\n\\n\\n -25-\\n\\fRomero is still good law, it is \\\"factually and legally\\n\\ndistinguishable\\\" from his case.\\n\\n In Bonilla Romero, this court rejected Santiago's\\n\\ncontention that suppression of evidence by a Puerto Rico court in\\n\\na local prosecution necessarily requires suppression of the same\\n\\nevidence in a subsequent federal prosecution. 836 F.2d at 41-45.\\n\\nThere, Puerto Rico officers had seized two firearms and drugs from\\n\\nthe car and house of the defendant, who was charged with weapons\\n\\nand drug offenses under Puerto Rico law. Id. at 41. Months\\n\\nlater, based on that same evidence, a grand jury returned an\\n\\nindictment charging the defendant with federal crimes. Id. After\\n\\nholding a hearing, the Puerto Rico trial court granted the\\n\\ndefendant's motion to suppress because the local judge \\\"seriously\\n\\ndoubted the veracity\\\" of the officers' testimony. Id. The local\\n\\nprosecution was subsequently dismissed. Id. The defendant then\\n\\nsought suppression of the same evidence in the district court.\\n\\nId. The district court \\\"held that the federal court was not bound\\n\\nby the decision of the local court to suppress the evidence\\\" and\\n\\nultimately denied the defendant's motion to suppress. Id. After\\n\\nthe defendant was convicted on all federal counts, he appealed the\\n\\ndenial of his motion to suppress, arguing, inter alia, that\\n\\nallowing the government to relitigate the suppression issue\\n\\n\\n\\n\\n -26-\\n\\fviolated the Double Jeopardy Clause as well as collateral estoppel\\n\\nprinciples. Id.\\n\\n We rejected both challenges. First, regarding the\\n\\ndouble jeopardy challenge, we noted that \\\"jeopardy 'attaches' when\\n\\na trial commences; that is, when a jury is sworn or empanelled or,\\n\\nin a bench trial, when the judge begins to hear evidence.\\\" Id.\\n\\nat 42 (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26\\n\\n(1980)). Because \\\"jeopardy did not attach as a result of the\\n\\nsuppression of evidence ordered . . . by the Puerto Rico . . .\\n\\n[c]ourt[,] and the subsequent dismissal of charges under Puerto\\n\\nRico law,\\\" the litigation of the suppression of evidence issue in\\n\\nfederal court did not violate the defendant's rights under the\\n\\nDouble Jeopardy Clause. Id.\\n\\n Second, assuming without deciding that the doctrine of\\n\\ncollateral estoppel applied even when jeopardy had not attached,11\\n\\nwe rejected the defendant's contention that \\\"relitigation of the\\n\\n\\n11 As in Bonilla Romero, this appeal does not require us to decide\\nwhether collateral estoppel is applicable in criminal proceedings\\nregardless of whether jeopardy has attached. See Bonilla Romero,\\n836 F.2d at 43. Because both parties urge us to apply the doctrine\\nof collateral estoppel, and because we would reach the same result\\nirrespective of whether the doctrine applies, we assume that the\\ncollateral estoppel doctrine is applicable regardless of whether\\njeopardy has attached. We further note that, although the\\ngovernment stated at oral argument that the Supreme Court seems to\\nbe moving away from applying collateral estoppel in criminal cases,\\nthe parties did not brief the issue and, instead, both assumed\\nthat the collateral estoppel doctrine remains applicable.\\n\\n\\n -27-\\n\\fsuppression was barred by the principle of collateral estoppel\\\" in\\n\\nthat case. Id. at 42-44. We noted that the doctrine of collateral\\n\\nestoppel requires, inter alia, \\\"that the party to be precluded\\n\\nfrom relitigating an issue decided in a previous litigation . . .\\n\\neither [had been] a party or [had been] in privity with a party to\\n\\nthat prior litigation,\\\" and concluded that said requirement was\\n\\nnot satisfied in that case because \\\"the federal prosecutors were\\n\\nneither a party, nor in privity with a party, to the suppression\\n\\nhearing in the Puerto Rico Superior Court.\\\"12 Id. at 43. We\\n\\nclarified that \\\"the source of authority of two government entities\\n\\nis not dispositive of whether they are in privity.\\\" Id. at 43.\\n\\nThus, \\\"Puerto Rico's sovereignty status as a United States\\n\\nterritory\\\" has no bearing on the determination of whether federal\\n\\nprosecutors would be bound by a prior suppression of the same\\n\\nevidence by a Puerto Rico court.13 Id. at 44. Instead, \\\"we must\\n\\n\\n12 We found that there was no evidence that federal prosecutors\\nwere involved in the local prosecution or that they provided\\nassistance or advice to local authorities. Id. at 44. We further\\nnoted that \\\"[t]he initial suppression hearing concerned purely\\nlocal charges over which the federal enforcement officials had no\\nauthority and thus no interest,\\\" and, accordingly, \\\"[f]ederal\\nprosecutors had no reason to believe that a Puerto Rico Superior\\nCourt judge would be deciding any matters affecting a federal\\nprosecution.\\\" Id.\\n13 Prior to Bonilla Romero, this court had addressed Puerto Rico's\\nsovereignty status as a United States territory in United States\\nv. López Andino, where we held that Puerto Rico was a \\\"separate\\nsovereign for the limited purpose of the double jeopardy clause.\\\"\\n831 F.2d 1164, 1168 (1st Cir. 1987), overruled by Sánchez Valle,\\n\\n -28-\\n\\fdetermine whether there was a close or significant relationship\\n\\nbetween the federal and Puerto Rico prosecutors during the local\\n\\nsuppression hearing or whether the federal authorities controlled\\n\\nor actively participated in that hearing such that their interests\\n\\nin enforcing federal law were sufficiently represented.\\\" Id.\\n\\n In Pérez-Pérez, we reiterated Bonilla Romero's holding\\n\\nthat application of the doctrine of collateral estoppel in criminal\\n\\ncases requires that \\\"the party to be precluded . . . have been the\\n\\nsame as, or in privity with, the party who lost on that issue in\\n\\nthe prior litigation.\\\" 72 F.3d at 226 (citing Bonilla Romero, 836\\n\\nF.2d at 42-44). We noted that Bonilla Romero had already rejected\\n\\nthe defendant's argument that if the United States and Puerto Rico\\n\\nwere considered a \\\"single sovereign\\\" for double jeopardy purposes,\\n\\nthen they were also in privity under collateral estoppel\\n\\nprinciples. Id.\\n\\n Bonilla Romero directly addresses the issue presently\\n\\nbefore us. The district court, however, found that it is no longer\\n\\ngood law in light of Sánchez Valle. It held that because under\\n\\nSánchez Valle Puerto Rico and the United States are considered\\n\\n\\\"one sovereign when it comes to criminally prosecuting\\n\\n\\n136 S. Ct. at 1868. In Bonilla Romero, we noted that there was\\n\\\"extensive argument[]\\\" over that conclusion, including\\ndisagreement among members of this court. 836 F.2d at 42 n.2, 44\\nn.4.\\n\\n\\n -29-\\n\\findividuals,\\\" it \\\"must give the [Puerto Rico] court suppression\\n\\nfindings and judgment preclusive effect\\\" even when federal\\n\\nprosecutors \\\"did not participate in the [Puerto Rico] court\\n\\ncriminal proceedings against Santiago.\\\" We disagree.\\n\\n Sánchez Valle is a double jeopardy case. The Double\\n\\nJeopardy Clause of the Fifth Amendment protects an individual from\\n\\nbeing \\\"twice put in jeopardy of life or limb\\\" for the same offense,\\n\\nU.S. Const. amend. V., if the prosecutions are brought by the same\\n\\nsovereign, Sánchez Valle, 136 S. Ct. at 1870. In Sánchez Valle,\\n\\nthe Supreme Court faced the issue of whether Puerto Rico and the\\n\\nUnited States were the same sovereign for purposes of the Double\\n\\nJeopardy Clause, which would in turn determine whether the federal\\n\\ngovernment and Puerto Rico were barred \\\"from successively\\n\\nprosecuting a defendant on like charges for the same conduct.\\\"\\n\\nId. To determine whether Puerto Rico and the United States were\\n\\nthe same or different sovereigns for double jeopardy purposes, the\\n\\ncourt performed a \\\"historical, not functional,\\\" inquiry, id. at\\n\\n1871, looking only to \\\"whether the prosecutorial powers of the two\\n\\njurisdictions ha[d] independent origins,\\\" id. (citing United\\n\\nStates v. Wheeler, 435 U.S. 313, 320 (1978)).14 It held that they\\n\\n\\n14 The Court specifically stated that \\\"the 'extent of control'\\nthat 'one prosecuting authority [wields] over the other'\\\" is\\nirrelevant. Sánchez Valle, 136 S. Ct. at 1870 (alteration in\\noriginal).\\n\\n\\n -30-\\n\\fdid not, because \\\"the oldest roots of Puerto Rico's power to\\n\\nprosecute lie in federal soil,\\\" id. at 1868, inasmuch as \\\"Congress\\n\\nconferred the authority to create the Puerto Rico Constitution,\\n\\nwhich in turn confers the authority to bring criminal charges,\\\"\\n\\nid. at 1876. Because the prosecutorial authority of both the\\n\\nfederal government and Puerto Rico emanates from a single source\\n\\n-- Congress -- the two are considered a single sovereign for double\\n\\njeopardy purposes and \\\"the two governments cannot 'twice put' [an\\n\\nindividual] 'in jeopardy' for the 'same offence.'\\\" Id. at 1875-77.\\n\\n There is no doubt that double jeopardy concerns are not\\n\\nimplicated in this case. Santiago's local charges were dismissed\\n\\nbefore trial, and thus jeopardy never attached in the local\\n\\ncourts.15 Santiago concedes as much. The district court itself\\n\\nacknowledged that Sánchez Valle is a case about double jeopardy,\\n\\nbut stated that it would \\\"extend Sánchez Valle to the suppression\\n\\ncontext . . . based on the fact that [Puerto Rico and the United\\n\\nStates are] a single sovereign.\\\" According to the district court,\\n\\nalthough there is no indication in Sánchez Valle that the Supreme\\n\\n\\n\\n15 Furthermore, the local and federal charges were not for the\\nsame offenses. See Brown v. Ohio, 432 U.S. 161, 165 (1977) (\\\"The\\nDouble Jeopardy Clause 'protects against a second prosecution for\\nthe same offense after acquittal. It protects against a second\\nprosecution for the same offense after conviction. And it\\nprotects against multiple punishments for the same offense.'\\\"\\n(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))).\\n\\n\\n -31-\\n\\fCourt intended to extend its analysis of the \\\"notion to\\n\\nsovereignty\\\" outside of the double jeopardy context, it did not\\n\\npreclude it either. The district court's holding, however, runs\\n\\nhead-on into the law of the circuit rule.\\n\\n \\\"The law of the circuit rule (a branch of the stare\\n\\ndecisis doctrine) holds that 'newly constituted panels in a multi-\\n\\npanel circuit court are bound by prior panel decisions that are\\n\\nclosely on point.'\\\" United States v. Wurie, 867 F.3d 28, 34 (1st\\n\\nCir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co.,\\n\\n612 F.3d 25, 33 (1st Cir. 2010)). Exceptions to this rule are\\n\\n\\\"extremely narrow and their incidence is hen's-teeth-rare.\\\"\\n\\nSan Juan Cable LLC, 612 F.3d at 33. \\\"Such exceptions come into\\n\\nplay only when the holding of the prior panel is 'contradicted by\\n\\ncontrolling authority, subsequently announced (say, a decision of\\n\\nthe authoring court en banc, a Supreme Court opinion directly on\\n\\npoint, or a legislative overruling).'\\\" Id. (quoting United States\\n\\nv. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)). \\\"An even less\\n\\ncommon exception has been recognized in those 'rare instances in\\n\\nwhich authority that postdates the original decision, although not\\n\\ndirectly controlling, nevertheless offers a sound reason for\\n\\nbelieving that the former panel, in light of fresh developments,\\n\\nwould change its collective mind.'\\\" Wurie, 867 F.3d at 34 (quoting\\n\\nRodríguez, 527 F.3d at 225).\\n\\n\\n -32-\\n\\f Here, there has been no en banc decision from this court\\n\\ncontradicting our holding in Bonilla Romero. There has also been\\n\\nno statutory overruling. Nor is there a Supreme Court opinion\\n\\ndirectly on point contradicting our precedent. We are thus left\\n\\nto consider the only remaining exception to the law of the circuit\\n\\nrule -- whether Sánchez Valle, although not directly controlling,\\n\\noffers a sound reason for believing that the Bonilla Romero panel\\n\\nwould change its collective mind. We find that it does not.\\n\\n Sánchez Valle, which had nothing to do with collateral\\n\\nestoppel, and where the Supreme Court emphasized the narrowness of\\n\\nits holding, held that Puerto Rico and the United States are a\\n\\nsingle sovereign for purposes of the Double Jeopardy Clause because\\n\\nthe source of authority of both prosecutorial powers derive from\\n\\nthe same source. Although Puerto Rico and the United States had\\n\\nnot been considered a single sovereign in the context of a criminal\\n\\nproceeding at the time that Bonilla Romero and Pérez-Pérez were\\n\\ndecided, this court nevertheless considered in Bonilla Romero the\\n\\npossible effect of deeming Puerto Rico and the United States a\\n\\nsingle sovereign and rejected that the \\\"source of authority of\\n\\n[the] two governmental entities\\\" could be \\\"dispositive of whether\\n\\nthey are in privity.\\\" Bonilla Romero, 836 F.2d at 43.\\n\\n We held, both in Bonilla Romero and in Pérez-Pérez, that\\n\\nPuerto Rico's sovereign status as a United States territory \\\"does\\n\\n\\n -33-\\n\\fnot determine whether the federal prosecutors are bound by a\\n\\npretrial suppression order issued by a Puerto Rico court.\\\"\\n\\nBonilla Romero, 836 F.2d at 44; see also Pérez-Pérez, 72 F.3d at\\n\\n226 (noting that Bonilla Romero rejected that finding that Puerto\\n\\nRico and the United States are a \\\"single sovereign\\\" \\\"establishes\\n\\nan identity between the two governments\\\"). Instead, what\\n\\ndetermines whether collateral estoppel is applicable is whether\\n\\n\\\"the party to be precluded from relitigating an issue decided in\\n\\na previous litigation was either a party or in privity with a party\\n\\nto that prior litigation.\\\" Bonilla Romero, 836 F.2d at 43.\\n\\nBecause at the time of Bonilla Romero and Pérez-Pérez we considered\\n\\nthe possibility that Puerto Rico and the United States could be\\n\\ndeemed a single sovereign, and nonetheless rejected that a finding\\n\\nof single sovereignty would affect our analysis of the issue, we\\n\\nfind no sound reason to believe that the Bonilla Romero panel would\\n\\nchange its collective mind in light of Sánchez Valle.\\n\\nAccordingly, we conclude that Bonilla Romero is still good law.\\n\\n Santiago, however, urges us to find his case\\n\\ndistinguishable from Bonilla Romero, arguing that: (1) unlike in\\n\\nhis case, the local decision suppressing the evidence in\\n\\nBonilla Romero was not \\\"a final decision from the highest court in\\n\\nPuerto Rico\\\"; (2) the district court in Bonilla Romero had held a\\n\\nsuppression hearing before the local court entered its order\\n\\n\\n -34-\\n\\fsuppressing the evidence in the local proceedings; (3) it is\\n\\n\\\"unclear from the record in Bonilla Romero whether the [local]\\n\\ncourt applied relevant federal law in its order granting the motion\\n\\nto suppress\\\"; and, (4) because Bonilla Romero was decided shortly\\n\\nafter López Andino, 831 F.2d at 1164, we can presume that\\n\\nLópez Andino's holding \\\"permeated\\\" Bonilla Romero's rationale; yet\\n\\nthat rationale no longer stands on firm ground after Sánchez Valle.\\n\\nWe find these arguments unpersuasive. Nothing in Bonilla Romero\\n\\nsuggests that the first three factors played any role in this\\n\\ncourt's analysis.16 Santiago's last alleged distinction fares no\\n\\nbetter in light of Bonilla Romero's explicit statement that \\\"the\\n\\nsource of authority of the two government entities\\\" was also\\n\\nirrelevant to the analysis. Bonilla Romero, 836 F.2d at 43-44.\\n\\nAccordingly, we do not find Santiago's case distinguishable from\\n\\nBonilla Romero.\\n\\n Applying our on-point precedent, we conclude that the\\n\\ndistrict court erred when it deemed itself bound by the Puerto\\n\\n\\n16 Furthermore, Santiago's argument that his case is\\ndistinguishable from Bonilla Romero because that case did not\\ninvolve \\\"a final decision from the highest court in Puerto Rico\\\"\\nis misleading. The local decision suppressing the identification\\nevidence in Santiago's local case, although final, was not a\\ndecision from the highest court in Puerto Rico. In fact, the\\nPuerto Rico Supreme Court declined to intervene in the case. Thus,\\nit was a final decision from the local intermediate court. In any\\nevent, how high the case went in the local courts is not relevant\\nto whether there was privity between the prosecuting authorities.\\n\\n\\n -35-\\n\\fRico Court of Appeals's decision to suppress the identification\\n\\nevidence without analyzing whether the requirements of collateral\\n\\nestoppel were satisfied. See id.; see also Pérez-Pérez, 75 F.3d\\n\\nat 226. We note that the district court went to great lengths to\\n\\nclarify that it was not ruling on collateral estoppel grounds, but\\n\\nthat was precisely the analysis that it should have applied. The\\n\\ndistrict court should have analyzed whether the federal prosecutor\\n\\nwas in privity with the local prosecutors that participated in the\\n\\nlocal suppression proceedings. It erred in failing to do so.\\n\\n As his final plea, Santiago urges us to find that the\\n\\ngovernment is collaterally estopped from litigating the\\n\\nsuppression issue in the district court. He argues that, although\\n\\nthe federal prosecution was not a party, it was in privity with\\n\\nthe local prosecution when the latter litigated the suppression\\n\\nissue in Puerto Rico courts. Because the parties do not dispute\\n\\nthe facts on which the privity analysis hinges, we proceed to\\n\\nanalyze the issue. See Bonilla Romero, 836 F.2d at 43-44 (analyzing\\n\\nthe privity issue in the first instance).\\n\\n Santiago posits that the federal prosecution was in\\n\\nprivity with the local prosecution due to the relationship between\\n\\nlocal and federal prosecutors. He claims that the federal\\n\\nprosecution was involved in his local proceedings because the\\n\\nevents of January 13 constituted a violation of his federal\\n\\n\\n -36-\\n\\fprobation. In support of this assertion, he cites to a filing by\\n\\nthe SAUSA then assigned to the federal case, which stated, \\\"the\\n\\nUnited States has been in contact and coordination with the victim\\n\\nof the attempted murder charges and with the Puerto Rico Police\\n\\nDepartment agent who has conducted the investigation into the\\n\\nalleged crime.\\\"17 He further contends that the SAUSA then assigned\\n\\nto the federal prosecution was on detail from the Puerto Rico\\n\\nDepartment of Justice, and that the victim (Sepúlveda) and the\\n\\ninvestigating officer (Quiles) involved in the local prosecution\\n\\n\\\"were backbone[s] of the federal prosecution.\\\" In addition,\\n\\nSantiago submits that the \\\"charging structure . . . also supports\\n\\na finding of strategic cooperation between federal and local\\n\\nprosecutors.\\\" In sum, Santiago argues that because \\\"[local] and\\n\\nfederal prosecutors -- two hands of the same sovereign --\\n\\nsimultaneously worked two prosecutions involving the same facts,\\n\\nthe same witnesses, and the same law[,] [t]heir legal relationship\\n\\nand actions support[] a finding of privity.\\\"\\n\\n We find Santiago's arguments unpersuasive. Although\\n\\nSantiago argues that Puerto Rico has \\\"what amounts to an agency\\n\\nrelationship\\\" with the United States, Bonilla Romero is clear that\\n\\n\\n17 This quote, taken from the government's motion for an extension\\nof time to respond to Santiago's motion to suppress evidence, does\\nnot indicate that the SAUSA had been in contact or coordination\\nwith state prosecutors.\\n\\n\\n -37-\\n\\fPuerto Rico's relationship with the United States \\\"is not\\n\\ndispositive of whether they are in privity.\\\" Bonilla Romero,\\n\\n836 F.2d at 43. Furthermore, the district court explicitly found\\n\\nthat the federal prosecutor did not participate in the local\\n\\nproceedings against Santiago, and Santiago failed to show that\\n\\nthis factual finding was erroneous, much less clearly erroneous.\\n\\nSee United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir.\\n\\n2014) (noting that on appeal from a district court's suppression\\n\\nruling, we review factual findings for clear error). Nor does the\\n\\nrecord support Santiago's contention that the federal prosecution\\n\\ncontrolled or was involved in the Commonwealth proceedings, which\\n\\n\\\"concerned purely local charges over which the federal enforcement\\n\\nofficials had no authority and thus no interest.\\\" Bonilla Romero,\\n\\n936 F.2d at 44.\\n\\n Although shortly after the shootout a United States\\n\\nProbation Officer filed a motion notifying the district court that\\n\\nhe had been in contact with the victim and the investigating\\n\\nofficer, the motion does not state or imply that a federal\\n\\nprosecutor (as opposed to a United States Probation Officer) had\\n\\nbeen in contact or coordination with state prosecutors. See id.\\n\\nat 43 (\\\"In this case, the requirement was not satisfied since the\\n\\nfederal prosecutors were neither a party, nor in privity with a\\n\\nparty, to the suppression hearing in the Puerto Rico Superior\\n\\n\\n -38-\\n\\fCourt.\\\") (emphasis added). It was not until five months after the\\n\\nlocal suppression hearing took place that a federal prosecutor\\n\\nentered an appearance in Santiago's federal probation revocation\\n\\nproceedings. 18 In addition, although the federal prosecutor\\n\\nassigned to his case was a SAUSA on detail from the Puerto Rico\\n\\nDepartment of Justice, Santiago has offered no evidence that she\\n\\nwas involved in the local suppression proceedings, that she\\n\\nassisted or gave advice to local authorities, or even discussed\\n\\nthe matter with them. Moreover, this court has clarified that\\n\\n\\\"the appointment of a state prosecutor as a special federal\\n\\nprosecutor, subsequent to the state court action, 'does not\\n\\nretroactively make the federal government a party to an earlier\\n\\nstate court proceeding.'\\\" United States v. Charles, 213 F.3d 10,\\n\\n21 (1st Cir. 2000) (quoting United States v. Safari, 849 F.2d 891,\\n\\n893 (4th Cir. 1988)).\\n\\n We also find unpersuasive Santiago's argument that\\n\\nprivity can be found because both prosecutions involve the same\\n\\nfacts, witnesses (including the victim and the investigating\\n\\nofficer), or law. Involvement of the same victim and investigating\\n\\nofficer in two prosecutions is to be expected where local and\\n\\n\\n18 It is understandable that the federal prosecutor would be in\\ncontact with the victim and the agent conducting the investigation\\nbecause they would presumably be government witnesses at the\\nrevocation hearing in federal court.\\n\\n\\n -39-\\n\\ffederal charges are brought for the same underlying events, even\\n\\nif the local and federal prosecutions are for different offenses\\n\\nwith different elements. In fact, the federal and local\\n\\nprosecutions in Bonilla Romero involved at least the same facts\\n\\nand witnesses, yet this court found no privity between the\\n\\nprosecuting authorities. Bonilla Romero, 836 F.2d at 41, 44.\\n\\nFinally, contrary to Santiago's contention, the timing of the\\n\\nevents -- where federal charges were brought before the local case\\n\\nwas dismissed, and local charges were refiled after Santiago's\\n\\nfederal case was already pending -- suggests that there was no\\n\\ncoordination between the federal and local prosecutions.\\n\\n In sum, what determines if privity exists is whether\\n\\nthere was \\\"a close or significant relationship between the federal\\n\\nand Puerto Rico prosecutors during the local suppression\\n\\n[proceedings] or whether the federal authorities controlled or\\n\\nactively participated in [those proceedings] such that their\\n\\ninterests in enforcing federal law were sufficiently represented.\\\"\\n\\nId. at 44. Because nothing suggests this happened in Santiago's\\n\\ncase, we find that there was no privity between the two prosecuting\\n\\nauthorities and, thus, collateral estoppel is not applicable.\\n\\n III. Conclusion\\n\\n For the foregoing reasons, we reverse and vacate the\\n\\ndistrict court's order and find that, because there was no privity\\n\\n\\n -40-\\n\\fbetween the two prosecuting authorities, collateral estoppel is\\n\\ninapplicable. We remand the case to the district court for\\n\\nproceedings consistent with this decision.\\n\\n Reversed, Vacated and Remanded.\\n\\n\\n\\n\\n -41-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":484,"cells":{"id":{"kind":"number","value":8443862,"string":"8,443,862"},"name":{"kind":"string","value":"XIU JIN JIANG, Guo Zhong Dong v. Matthew G. WHITAKER, Acting United States Attorney General"},"name_abbreviation":{"kind":"string","value":"Xiu Jin Jiang v. Whitaker"},"decision_date":{"kind":"string","value":"2019-02-01"},"docket_number":{"kind":"string","value":"16-4077"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Dismissed, Jacobs, Leval, Newman, Reasons, Review\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415289/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":"JACOBS"},"judge3":{"kind":"string","value":"LEVAL"},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443862/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: XIU JIN JIANG, Guo Zhong Dong v. Matthew G. WHITAKER, Acting United States Attorney General\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: XIU JIN JIANG, Guo Zhong Dong v. Matthew G. WHITAKER, Acting United States Attorney General\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":485,"cells":{"id":{"kind":"number","value":4587076,"string":"4,587,076"},"name":{"kind":"string","value":"Gary W. RICHARDS, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. DIRECT ENERGY SERVICES, LLC, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Richards v. Direct Energy Servs., LLC"},"decision_date":{"kind":"string","value":"2019-02-04"},"docket_number":{"kind":"string","value":"17-1003-cv; August Term 2017"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pooler, Parker, Livingston\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887955/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"035concurrenceinpart\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9887956/\", \"author_raw\": \"\"}, {\"author\": \"DEBRA ANN LIVINGSTON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐1003‐cv \\nRichards v. Direct Energy Servs., LLC \\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n \\n August Term 2017 \\n \\n (Argued: April 11, 2018 Decided: February 4, 2019) \\n \\n No. 17‐1003‐cv \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\n GARY W. RICHARDS, \\n on behalf of himself and all others similarly situated, \\n \\n Plaintiff‐Appellant, \\n \\n ‐v.‐ \\n \\n DIRECT ENERGY SERVICES, LLC, \\n \\n Defendant‐Appellee. \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\nBefore: POOLER, PARKER, and LIVINGSTON, Circuit Judges. \\n \\n Plaintiff‐Appellant Gary Richards (“Richards”) entered into a consumer \\nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \\nEnergy”). Richards stayed on this contract for fifteen months. The contract \\ninitially guaranteed Richards a fixed electricity rate that was 10% lower than the \\nstate‐approved electricity rate. Consistent with the terms of the contract, \\nRichards’s fixed‐rate plan was converted into a variable rate plan after the first \\ntwelve months. Direct Energy then continued supplying electricity to Richards \\nat a new variable rate for three months, at two cents more per kilowatt hour \\n\\n 1 \\n\\n(“kWh”) than the state‐approved rate. The contract stated that this variable rate \\nwould be calculated to reflect “business and market conditions.” After \\nterminating his contract, Richards sued Direct Energy, alleging breach of contract, \\ndeceptive and unfair trade practices, and unjust enrichment. The United States \\nDistrict Court for the District of Connecticut (Bolden, J.) dismissed several of \\nRichards’s claims, and granted summary judgment to Direct Energy on his \\nremaining claims. The judgment of the district court is AFFIRMED. \\n \\n JUDGE POOLER concurs in part and dissents in part in a separate opinion. \\n \\nFOR PLAINTIFF‐APPELLANT: ROBERT A. IZARD (Craig A. Raabe, on the \\n brief), Izard, Kindall & Raabe LLP, West \\n Hartford, CT, for Gary W. Richards. \\n \\nFOR DEFENDANT‐APPELLANT: MICHAEL D. MATTHEWS (James M. \\n Chambers, Hutson B. Smelley, Robert P. \\n Debelak III, on the brief), McDowell & \\n Hetherington LLP, Houston, TX, for Direct \\n Energy Services, LLC. \\n \\nDEBRA ANN LIVINGSTON, Circuit Judge: \\n\\n Plaintiff‐Appellant Gary W. Richards (“Richards”) entered into an \\n\\nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \\n\\nEnergy”). The contract provided that, for the first twelve months, Direct Energy \\n\\nwould guarantee Richards a fixed electricity rate that was 10% below the state‐\\n\\napproved rate. But if Richards did not leave the contract at the end of that year, \\n\\nDirect Energy would begin charging him a new variable rate. The variable rate, \\n\\naccording to the contract, would be set on a month to month basis according to \\n\\n\\n\\n\\n 2 \\n\\nDirect Energy’s “discretion” and would reflect “business and market conditions.” \\n\\nJ.A. 157. Richards was free to terminate the contract at any time without paying \\n\\na penalty. After twelve months on the discounted fixed rate plan, Richards began \\n\\npaying the variable rate. During this time, the variable rate was two cents more \\n\\nper kilowatt hour (“kWh”) than the state‐approved rate. Richards switched \\n\\nelectricity providers after fifteen months with Direct Energy (twelve on the \\n\\ndiscounted fixed rate, three on the variable rate), complaining that the variable \\n\\nrate was set too high. He then sued Direct Energy for breach of contract, \\n\\ndeceptive and unfair trade practices, and unjust enrichment, and also sought to \\n\\nrepresent a class of all Direct Energy customers who paid the variable rate in \\n\\nConnecticut and Massachusetts. The district court dismissed several of his \\n\\nclaims and granted summary judgment to Direct Energy as to the rest. \\n\\n This is the latest in a line of class actions challenging consumer gas and \\n\\nelectricity rates in the wake of market deregulation.1 Richards’s principal claim \\n\\nis that Direct Energy breached its contract with Richards and violated state unfair \\n\\nand deceptive trade practices law by not pegging its variable rate to Direct \\n\\n\\n 1 See, e.g., Hamlen v. Gateway Energy Servs. Corp., No. 16 Civ 3526, 2017 WL 6398729, \\nat *8 (S.D.N.Y. Dec. 8, 2017); Edwards v. N. Am. Power & Gas, LLC, 120 F. Supp. 3d 132, 142 \\n(D. Conn. 2015); Yang Chen v. Hiko Energy, LLC, No. 14 CV 1771, 2014 WL 7389011, at *4 \\n(S.D.N.Y. Dec. 29, 2014). \\n\\n\\n 3 \\n\\nEnergy’s procurement costs. We disagree. By the contract’s plain terms, Direct \\n\\nEnergy promised that the variable rate would be set in its discretion and that it \\n\\nwould reflect “business and market conditions,” a phrase which encompasses \\n\\nmore than just procurement costs. Accordingly, the judgment below is \\n\\nAFFIRMED. \\n\\n BACKGROUND \\n\\n I. Factual Background2 \\n\\n A \\n\\n This is a contract dispute set in the context of Connecticut’s electricity \\n\\nmarket. ISO New England, Inc. is responsible for administering a market in \\n\\nwhich local electricity distribution companies bid on electricity supplied by power \\n\\ngenerators. In Connecticut, two electric distribution companies, Eversource and \\n\\nUnited Illuminating, maintain monopoly control over electricity distribution \\n\\nsystems within set geographic zones and are ultimately responsible for \\n\\ndistributing electricity to consumers in those zones. Consumers may enter into \\n\\n\\n 2 The facts outlined below primarily relate to the claims dismissed on summary \\njudgment and are therefore either undisputed or presented in the light most favorable to \\nRichards. See Raspardo v. Carlone, 770 F.3d 97, 111 (2d Cir. 2014). As for Richards’s \\nclaims dismissed on the pleadings, we accept all factual allegations as true and draw all \\nreasonable inferences in Richards’s favor. See Trs. of Upstate N.Y. Eng’rs Pension Fund v. \\nIvy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). \\n\\n\\n 4 \\n\\nelectricity contracts with either company directly. All these contracts offer \\n\\nelectricity at “Standard Service Rates,” which Connecticut’s Public Utilities \\n\\nRegulatory Authority (“PURA”) approves in advance. See Conn. Gen. Stat. § 16‐\\n\\n19(a). \\n\\n In 2000, Connecticut deregulated its consumer electricity market. \\n\\nConsumers may still purchase electricity from either Eversource or United \\n\\nIlluminating at their PURA‐approved Standard Service Rates (effectively a public \\n\\noption), but they may instead choose to contract with one of the forty PURA‐\\n\\nlicensed retail electricity suppliers (the private market), all of which piggyback on \\n\\nEversource and United Illuminating’s electricity distribution systems. These \\n\\nsuppliers purchase power that they then sell to consumers at market‐based, \\n\\nunregulated rates. Many offer variable prices, promotional rates, guarantees that \\n\\nenergy will come from renewables, and incentives like cash rebates and gift cards. \\n\\nSome suppliers also include “guaranteed savings” provisions in their contracts, \\n\\nwhich ensure that consumers will save money compared to the Standard Service \\n\\nRates. In general, the Standard Service Rates tend to adjust more slowly in \\n\\nresponse to changes in the wholesale electricity market than market rates. \\n\\n\\n\\n\\n 5 \\n\\n Although PURA does not regulate suppliers’ rates, it regulates the suppliers \\n\\nthemselves. PURA licenses all private electricity suppliers, id. § 16‐245(a)–(b), \\n\\nand reviews these licenses every five years, Conn. Agency Regs. § 16‐245‐2(f). It \\n\\nalso polices how suppliers word their consumer contracts. Among other things, \\n\\nthese contracts must contain: \\n\\n “all material terms of the agreement”; \\n\\n “a clear and conspicuous statement explaining the rates that [ea]ch \\n customer will be paying, including the circumstances under which the \\n rates may change”; \\n\\n “a clear and conspicuous statement . . . describing any penalty for early \\n termination of such contract”; and \\n\\n “a statement that provides specific directions to the customer as to how \\n to compare the price term in the contract to the customer’s existing . . . \\n charge on the electric bill and how long those rates are guaranteed.” \\n\\nConn. Gen. Stat. § 16‐245o(f)(2). Finally, Connecticut’s state government helps \\n\\nmaintain an electricity‐comparison website that lists available electricity suppliers \\n\\nand compares electricity suppliers’ rates and other relevant contract terms to each \\n\\nother and to the default Standard Service Rates.3 \\n\\n\\n\\n\\n See “Compare Generation Rates,” ENERGIZE CT, https://www.energizect.com/ \\n 3\\n\\ncompare‐energy‐suppliers (last visited July 4, 2018). \\n\\n\\n 6 \\n\\n B \\n\\n Direct Energy is a private electricity supplier that offers several different \\n\\nelectricity plans to consumers in the private market. Some of its plans come with \\n\\nadd‐ons, like an Internet‐connected Nest thermostat, a home warranty, or a \\n\\nguarantee that 100% of the energy will come from “green” sources. During the \\n\\ntime at issue in this case, all of Direct Energy’s plans were “Evergreen plans,” \\n\\nmeaning that Direct Energy would charge a fixed rate for a set time (between \\n\\ntwelve and thirty‐six months), and at the end of that period, if the customer took \\n\\nno action, Direct Energy would charge a variable rate that could change each \\n\\nmonth. \\n\\n Direct Energy balanced several factors when setting the variable rate. In \\n\\ngeneral, Direct Energy targeted a certain profit margin based on its own cost of \\n\\nenergy while not setting the rate so high that customers would leave. \\n\\nCompetitors’ prices, market‐share objectives, supply hedging strategies, \\n\\nlegislative and regulatory requirements, and market risk helped inform these \\n\\nfactors. Direct Energy’s variable rate was higher than its fixed rate, so when a \\n\\ncustomer switched to the variable rate, Direct Energy often reduced the customer’s \\n\\n\\n\\n\\n 7 \\n\\nvariable rate for the first few months to smooth the transition. At one point, more \\n\\nthan half of Direct Energy’s Connecticut customers were paying the variable rate. \\n\\n In March 2012, Gary Richards signed a two‐page electricity contract with \\n\\nDirect Energy guaranteeing him a fixed electricity rate of 7.45 cents per kWh for \\n\\none year. This was an Evergreen plan, so after the year expired, Richards’s \\n\\n“service [would] automatically continue each month without additional notice, \\n\\nand [Richards] [would] pay a variable rate per kWh, which [could] be higher or \\n\\nlower each monthly billing cycle.” J.A. 157. The contract further stated: \\n\\n After the Initial Term and during the Renewal Period, the rate for electricity \\n will be variable each month at Direct Energy’s discretion. The rate may be \\n higher or lower each month based upon business and market conditions. \\n \\nId. We refer to this as “the Evergreen clause.” Richards could cancel the \\n\\ncontract “at any time without an early cancellation fee.” Id. These terms were \\n\\nall included on the first page of the contract, and PURA had earlier determined \\n\\nthat this contract was sufficiently clear and fulfilled all the requirements mandated \\n\\nby Conn. Gen. Stat. § 16‐245o(f)(2). \\n\\n After using the Connecticut government’s electricity‐comparison website \\n\\nmentioned above, Richards chose Direct Energy because it promised “the best \\n\\nfixed rate that [he] could get at the time” and no termination fee. J.A. 121. He \\n\\n\\n\\n\\n 8 \\n\\ndid not consider any other factors, nor did he have any expectations about how \\n\\nthe variable rate would work. But he still paid attention to his electricity rate \\n\\nduring the fixed‐rate period and compared rates on the Connecticut electricity \\n\\nwebsite several times. At one point, he tried to switch electricity providers to get \\n\\na better fixed rate, but the new provider never followed up on his inquiries. \\n\\n Richards ultimately stayed on the Direct Energy contract through the full \\n\\ntwelve months, did not opt out at the end, and so was rolled over onto the variable \\n\\nrate, which he paid for three months starting in April 2013. For those three \\n\\nmonths, the variable rate stayed constant at 10.64 cents per kwH, or 2.36 cents per \\n\\nkWh higher than Eversource’s PURA‐approved Standard Service Rate during this \\n\\ntime.4 There is no evidence in the record that Direct Energy’s variable rate was \\n\\nhigher than the rates charged by Direct Energy’s market competitors. Direct \\n\\nEnergy’s procurement costs were also largely constant during this three‐month \\n\\nperiod. \\n\\n In August 2013, Richards noticed that his electricity bills had risen \\n\\ncompared to previous months, so he canceled his contract with Direct Energy and \\n\\nswitched electricity providers. Over the course of the fixed‐rate period, Richards \\n\\n\\n\\n 4 The record does not disclose United Illuminating’s Standard Service Rate. \\n\\n\\n 9 \\n\\npaid $114 less than he would have under Eversource’s Standard Service Rate. \\n\\nBut his three months on the variable rate eliminated those savings. In total, for \\n\\nthe fifteen months he signed with Direct Energy, Richards, a former Vice President \\n\\nfor AT&T, paid $25 more than he would have under the Standard Service Rate — \\n\\nor about $1.67 per month extra. \\n\\n Richards submitted a letter to PURA complaining about Direct Energy in \\n\\nMarch 2014. Shortly after, Robert Izard, an attorney who has filed lawsuits like \\n\\nthis one against other electricity suppliers, see, e.g., Edwards v. N. Am. Power & Gas, \\n\\nLLC, 120 F. Supp. 3d 132 (D. Conn. 2015), contacted Richards and encouraged him \\n\\nto sue. Richards then retained Izard to represent him in this case. \\n\\n II. Procedural History \\n\\n In November 2014, Richards sued Direct Energy in the United States District \\n\\nCourt for the District of Connecticut (Bolden, J.) alleging breach of contract, unjust \\n\\nenrichment, and unfair and deceptive trade practices under the Connecticut \\n\\nUnfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42‐110b(a), and the \\n\\nMassachusetts Regulation of Business Practices for Consumers’ Protection Act, \\n\\nMass. Gen. Laws ch. 93A, § 1. He sought to certify a class of similarly situated \\n\\nDirect Energy customers who lived in Connecticut and Massachusetts. \\n\\n\\n\\n\\n 10 \\n\\n Most of his allegations concerned Direct Energy’s variable rate beginning in \\n\\nthe winter of 2013–2014 — well after Richards left Direct Energy. Starting in that \\n\\n(unusually cold) winter, the variable rate jumped by about 50% and stayed level \\n\\nthrough August 2015. Generally, the variable rate was about 75% higher than \\n\\nDirect Energy’s procurement costs, which fluctuated significantly, but the variable \\n\\nrate was lower than its procurement costs during the 2013–2014 winter. Direct \\n\\nEnergy thus kept variable rates steady through 2014 (and into 2015) to recover \\n\\nfrom its winter losses. Many other electricity companies never recovered from \\n\\ntheir winter losses and went out of business. \\n\\n The district court dismissed Richards’s Massachusetts state law and \\n\\nConnecticut unjust enrichment claims on August 4, 2015. See Richards v. Direct \\n\\nEnergy Servs., LLC, 120 F. Supp. 3d 148 (D. Conn. 2015). Because Richards is a \\n\\nConnecticut resident who was injured in Connecticut and not Massachusetts, the \\n\\ncourt concluded that Richards lacked Article III standing to bring an unfair and \\n\\ndeceptive trade practices claim under Massachusetts law. Richards also failed to \\n\\nstate a claim for unjust enrichment because “[a] plaintiff . . . cannot plead a claim \\n\\nof unjust enrichment if he also pleads the existence of an express contract,” as \\n\\nRichards had. Id. at 165. \\n\\n\\n\\n\\n 11 \\n\\n During discovery, the parties produced dueling expert witness reports. As \\n\\nrelevant here, Richards’s experts, economists who had been retained to produce \\n\\nexpert witness reports in prior class actions like this one, opined that Direct \\n\\nEnergy’s variable rate should be “consistent with” Direct Energy’s procurement \\n\\ncosts, “plus an appropriate margin to cover the legitimate costs and risks of \\n\\nsupplying Variable Rate customers.” Confidential App. 44. At the same time, \\n\\nthe experts made clear that they did not “offer an opinion on” how the Evergreen \\n\\nclause should be interpreted. Id. at 374; see also id. at 164 (“I’m not the expert on, \\n\\nyou know, legal meaning of business and market conditions. But as an \\n\\neconomist, you know, I do have an opinion professionally . . . .”). Their \\n\\nconclusions were purportedly based on, as one put it, “[their] personal economic \\n\\nbelief of what is reasonable,” given their knowledge of the electricity market. \\n\\nId. at 374. \\n\\n The district court granted summary judgment to Direct Energy on \\n\\nRichards’s remaining claims on March 31, 2017. See Richards v. Direct Energy \\n\\nServs., LLC, 246 F. Supp. 3d 538 (D. Conn. 2017). Direct Energy was entitled to \\n\\nsummary judgment on Richards’s contract claim, the district court concluded, \\n\\nbecause Richards had not “put forth sufficient evidence to create a material factual \\n\\n\\n\\n\\n 12 \\n\\ndispute about Direct Energy’s bad faith,” as required for his claim based on an \\n\\nalleged breach of the covenant of good faith and fair dealing. Id. at 557. \\n\\n The district court also granted summary judgment to Direct Energy on \\n\\nRichards’s unfair and deceptive trade practices claims under Connecticut law. \\n\\nRichards had argued that the Evergreen clause was deceptive because a reasonable \\n\\nconsumer would interpret it to mean that Direct Energy would charge consumers \\n\\nits procurement costs, plus a fixed profit margin. The district court disagreed and \\n\\nheld that the clause plainly gave Direct Energy “discretion to set a profit margin \\n\\nof its choosing when determining variable rates.” Id. at 552. Next, Richards \\n\\ncontended that his contract with Direct Energy failed adequately to explain “the \\n\\ncircumstances under which the rates [could] change,” which if true, would be a \\n\\nper se unfair trade practice. Id. at 555 (quoting Conn. Gen. Stat. § 16–245o(f)(2)), \\n\\nsee also Conn. Gen. Stat. § 16–245o(j). The district court rejected this argument \\n\\nbecause PURA had approved the contract language at issue. Finally, Richards \\n\\nargued that Direct Energy set the variable rate so high as to be “unfair” under \\n\\nConnecticut law. Not so, the district court held, because “pricing decisions \\n\\nalone” do not constitute unfair trade practices. Id. at 554. \\n\\n\\n\\n\\n 13 \\n\\n Finally, the district court dismissed Richards’s motion for class certification \\n\\nas moot because it had dismissed or granted summary judgment on all of \\n\\nRichards’s claims. Final judgment was entered on March 31, 2017. \\n\\n DISCUSSION \\n\\n On appeal, Richards challenges the district court’s March 31, 2017 grant of \\n\\nsummary judgment to Direct Energy on his contract and Connecticut unfair and \\n\\ndeceptive trade practices claims, and its August 4, 2015 dismissal of his unjust \\n\\nenrichment and Massachusetts unfair trade practices claims. For the reasons that \\n\\nfollow, we AFFIRM the judgment of the district court. \\n\\n I \\n\\n “We review a grant of summary judgment de novo, examining the evidence \\n\\nin the light most favorable to, and drawing all inferences in favor of, the non‐\\n\\nmovant.” Blackman v. New York City Transit Auth., 491 F.3d 95, 98 (2d Cir. 2007) \\n\\n(per curiam) (quoting Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003)). \\n\\n“Summary judgment is appropriate only if it can be established ‘that there is no \\n\\ngenuine issue as to any material fact and that the moving party is entitled to \\n\\njudgment as a matter of law.’” Sheppard, 317 F.3d at 354–55 (quoting Fed. R. Civ. \\n\\nP. 56(a)). \\n\\n\\n\\n\\n 14 \\n\\n A \\n\\n Richards argues that Direct Energy breached its contract with him because \\n\\nit violated the implied covenant of good faith and fair dealing. Under \\n\\nConnecticut law, the implied covenant attaches to every contract and “requir[es] \\n\\nthat neither party do anything that will injure the right of the other to receive the \\n\\nbenefits of the agreement.” Renaissance Mgmt. Co. v. Connecticut Hous. Fin. Auth., \\n\\n915 A.2d 290, 297–98 (Conn. 2007) (quoting De La Concha of Hartford, Inc. v. Aetna \\n\\nLife Ins. Co., 849 A.2d 382, 388 (Conn. 2004)). The covenant is thus “not implicated \\n\\nby conduct that does not impair contractual rights.” Capstone Bldg. Corp. v. Am. \\n\\nMotorists Ins. Co., 67 A.3d 961, 987 (Conn. 2013). \\n\\n To establish a breach of the implied covenant, the plaintiff must also show \\n\\nthat the defendants’ allegedly wrongful acts were “taken in bad faith.” De La \\n\\nConcha, 849 A.2d at 388 (quoting Alexandru v. Strong, 837 A.2d 875, 883 (Conn. App. \\n\\nCt. 2004)). “Bad faith in general implies both actual or constructive fraud, or a \\n\\ndesign to mislead or deceive another, or a neglect or refusal to fulfill some duty or \\n\\nsome contractual obligation, not prompted by an honest mistake as to one’s rights \\n\\nor duties, but by some interested or sinister motive.” Id. (quoting Habetz v. \\n\\nCondon, 618 A.2d 501, 504 (Conn. 1992)). Because this is a high bar, “[t]he \\n\\n\\n\\n\\n 15 \\n\\ncovenant will be breached only in a narrow range of cases.” Sec. Plans, Inc. v. \\n\\nCUNA Mut. Ins. Soc., 769 F.3d 807, 817 (2d Cir. 2014); see also Restatement (Second) \\n\\nof Contracts § 205 cmt. e (Am. Law Inst. 1981) (listing, as paradigmatic examples \\n\\nof such breaches, “harassing demands for assurances of performance, rejection of \\n\\nperformance for unstated reasons, willful failure to mitigate damages, and abuse \\n\\nof a power to determine compliance or to terminate the contract”). \\n\\n Richards’s contention that Direct Energy breached the implied covenant of \\n\\ngood faith and fair dealing ultimately rests on his interpretation of the Evergreen \\n\\nclause. Again, the clause states: \\n\\n After the Initial Term and during the Renewal Period, the rate for electricity \\n will be variable each month at Direct Energy’s discretion. The rate may be \\n higher or lower each month based upon business and market conditions. \\n \\nJ.A. 157. In Richards’s view, “a reasonable consumer would understand [this] \\n\\ncontract language to mean that [the] variable rate[] would fluctuate with [Direct \\n\\nEnergy’s] procurement costs.” Pl.‐Appellant Br. 54. And because the variable \\n\\nrate stayed constant while procurement costs fluctuated from the winter of 2013–\\n\\n2014 through August 2015, Direct Energy “ignored the language of the contract.” \\n\\nId. at 55. Richards contends that, at minimum, his two experts attested that a \\n\\nreasonable consumer would interpret the Evergreen clause this way, which raises \\n\\n\\n\\n\\n 16 \\n\\na plausible question of fact as to the clause’s appropriate interpretation. He also \\n\\nmaintains that Direct Energy acted in bad faith because Direct Energy set its \\n\\nvariable rates too high, and “lure[d] new customers into enrolling . . . by offering \\n\\nlow fixed teaser rates for a set period of time.” Id. at 20. For the following \\n\\nreasons, we disagree. \\n\\n Direct Energy did not “evade[] [the contract’s] spirit” or frustrate Richards’s \\n\\n“justified expectations.” Landry v. Spitz, 925 A.2d 334, 345 (Conn. App. Ct. 2007). \\n\\nThe Evergreen clause states that Direct Energy had “discretion” to set the variable \\n\\nrate “based upon business and market conditions.” J.A. 157. The record reflects \\n\\nthat Direct Energy set the variable rate to achieve a target profit margin, match \\n\\ncompetitors’ prices, and reduce customer losses, among other objectives. As a \\n\\nmatter of plain meaning, these sorts of considerations constitute “business and \\n\\nmarket conditions.” See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining \\n\\n“business” as “[a] commercial enterprise carried on for profit” and “market” as “the \\n\\nextent of economic demand” (emphasis added)); see also U.C.C. § 2‐723(1) (Am. Law \\n\\nInst. & Unif. Law Comm’n 2017) (explaining that, in calculating damages in the \\n\\ncontracts context, “market price . . . shall be determined according to the \\n\\n[prevailing] price of such goods” (emphasis added)). The Evergreen clause in no \\n\\n\\n\\n\\n 17 \\n\\nway states or implies that such considerations are improper, nor does it suggest \\n\\nthat the variable rate bears a direct relationship to Direct Energy’s procurement \\n\\ncosts. \\n\\n Richards’s experts’ testimony adds nothing to his breach of contract claim. \\n\\nThese experts opined only on what factors the variable rate should reflect, in their \\n\\nview, while declining to “offer an opinion on” how the Evergreen clause should \\n\\nbe interpreted. Confidential App. 374; see also id. at 164 (“I’m not the expert on, \\n\\nyou know, legal meaning of business and market conditions. But as an \\n\\neconomist, you know, I do have an opinion professionally . . . .”). And the \\n\\nexperts’ interpretation of the Evergreen clause would be irrelevant even if they had \\n\\nopined on its legal meaning because “the construction of unambiguous contract \\n\\nterms is strictly a judicial function.” 31A Am. Jur. 2d Expert and Opinion Evidence \\n\\n§ 294 (2018) (explaining that, “unless the words or phrases [in a contract] . . . are \\n\\nterms of art,” expert testimony “regarding the meanings of contractual provisions \\n\\n\\n\\n\\n 18 \\n\\n[is] irrelevant and hence inadmissible”).5 Courts across the country have thus \\n\\nrightly dismissed arguments like Richards’s even at the pleadings phase.6 \\n\\n To be sure, even though the Evergreen clause gave Direct Energy discretion \\n\\nin setting the variable rate, Direct Energy was obliged to “exercise that discretion \\n\\n\\n 5 For the same reason, the dissent’s observation that ambiguous contract language \\ncreates a jury question regarding the parties’ intent, Dissenting Op. at 12, misses the point. \\nIn the context of Richards’s claim, the Evergreen clause is not ambiguous. Richards \\nhimself testified that even he did not interpret the contract as he would now have us read \\nit. See J.A. 135 (agreeing that Direct Energy had “[p]retty much” complete discretion in \\ndeciding how to set its variable rate). While there might be some pricing considerations \\nthat would fall outside the “business and market conditions” that Direct Energy was \\nexplicitly authorized to consider, nothing in that phrase suggests the specific limitation \\nthat Richards now argues for. The dissent’s contention that a “reasonable juror . . . could \\nfind that Direct Energy tied its price‐setting discretion to its cost of doing business,” \\nDissenting Op. at 12–13, is patently incorrect, so long as jurors are constrained by law, and \\nnot permitted to invent absent contract terms out of thin air. \\n 6 See Orange v. Starion Energy PA, Inc, No. CV 15‐773, 2016 WL 1043618, at *4 (E.D. \\nPa. Mar. 16, 2016), aff’d, 711 F. App’x 681 (3d Cir. 2017); Windley v. Starion Energy, Inc., No. \\n14‐CV‐9053, 2016 WL 197503, at *2 (S.D.N.Y. Jan. 8, 2016), appeal withdrawn, No. 16‐320 \\n(2d Cir. 2016); Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *4 \\n(N.D. Ill. May 22, 2015), rev’d and vacated in part on other grounds, 847 F.3d 875 (7th Cir. \\n2017); Urbino v. Ambit Energy Holdings, LLC, No. Civ. 14‐5184, 2015 WL 4510201, at *4–5 \\n(D.N.J. July 24, 2015); Faistl v. Energy Plus Holdings, LLC, No. Civ. 12‐2879, 2012 WL \\n3835815, at *5–6 (D.N.J. Sept. 4, 2012). \\n Moreover, because there is no evidence in the record that Direct Energy \\nsupplemented the terms of its written contract with additional representations to \\nRichards, this case is different from those where defendants are alleged to have \\nmisrepresented to the plaintiffs that the “business and market conditions” clauses would \\nguarantee below‐market prices. See Todd v. XOOM Energy Maryland, LLC, No. GJH‐15‐\\n0154, 2017 WL 667198, at *8 (D. Md. Feb. 16, 2017); Melville v. Spark Energy, Inc., No. 15‐\\n8706, 2016 WL 6775635, at *4 (D.N.J. Nov. 15, 2016); Landau v. Viridian Energy PA LLC, 223 \\nF. Supp. 3d 401, 418–19 (E.D. Pa. 2016); Mirkin v. Viridian Energy, Inc., No. 3:15‐CV‐1057, \\n2016 WL 3661106, at *6–7 (D. Conn. July 5, 2016). \\n\\n\\n 19 \\n\\nin good faith.” 23 Williston on Contracts § 63:22 (4th ed. 2018). Richards has \\n\\ncome forth with no evidence to suggest that it did not. Although Richards \\n\\ncharges, for instance, that Direct Energy’s variable rate was “too high,” there is no \\n\\nevidence that it was any higher than its competitors’ rates. See Marcus Dairy, Inc. \\n\\nv. Rollin Dairy Corp., No. 05‐cv‐589, 2008 WL 4425954, at *9 (D. Conn. Sept. 24, 2008) \\n\\n(“To determine if a price is commercially reasonable[] it must be compared to the \\n\\nrange of other prices in the market.”). The factors influencing the variable rate \\n\\n(minimizing customer losses, reaching a target profit margin) are ordinary \\n\\nbusiness considerations. See id. at *7 (stating that merchants act in good faith \\n\\nwhen setting open price terms if they adhere to “reasonable commercial standards \\n\\nof fair dealing in the trade” (quoting U.C.C. § 2–305 cmt. 3 (Am. Law Inst. & Unif. \\n\\nLaw Comm’n 2017))). And Richards in fact seems to concede that all Connecticut \\n\\nprivate electricity suppliers “engag[e] in similar . . . pricing behavior,” which he \\n\\ninsistently labels “improper” while offering no coherent explanation (much less \\n\\nevidence) as to why this is so. Reply Br. 17 n.12. \\n\\n Richards counters that Direct Energy must have abused its discretion \\n\\nbecause the variable rate was higher than the PURA‐approved Standard Service \\n\\nRate. In his view, the Standard Service Rates, rather than Direct Energy’s private \\n\\n\\n\\n\\n 20 \\n\\ncompetitors’ rates, are the proper comparators because Connecticut’s private \\n\\nelectricity suppliers are all “corrupt.” Reply 17 n.12. But it is worth pausing to \\n\\nconsider the implications of Richards’s argument. If we were to hold private \\n\\nelectricity suppliers liable for departing from the Standard Service Rates, we \\n\\nwould in effect make those PURA‐approved rates binding on private electricity \\n\\nsuppliers like Direct Energy. Yet the entire point of electricity deregulation was \\n\\nto allow the market, rather than PURA, to determine rates. 7 Richards’s near‐\\n\\nfrivolous contract claim provides no basis on which a court is authorized to \\n\\noverrule this policy choice. \\n\\n Richards’s accusation that Direct Energy violated the implied covenant of \\n\\ngood faith by “luring new customers . . . by offering low fixed teaser rates,” Pl.‐\\n\\nAppellant Br. 20, is equally unavailing. Richards may find this practice \\n\\nobjectionable, but he received exactly what he bargained for: after paying a fixed \\n\\nrate below the PURA‐approved Standard Service Rates for a fixed time, Richards \\n\\nwould pay a variable rate set at Direct Energy’s discretion. See 23 Williston on \\n\\nContracts § 63:22 (4th ed. 2018) (“[T]here can be no breach of the implied promise \\n\\n\\n\\n 7 Indeed, if Richards wanted to pay less than he would have paid under the \\nStandard Service Rate, he could have chosen a contract with a “guaranteed savings” \\nclause that promised just that. \\n\\n\\n 21 \\n\\nor covenant of good faith and fair dealing where the contract expressly permits \\n\\nthe actions being challenged, and the defendant acts in accordance with the \\n\\nexpress terms of the contract.”). Richards voluntarily chose this contract after \\n\\nconsidering more than forty competitor options because he thought it was the best \\n\\navailable. He cannot allege breach of contract where, as here, Direct Energy \\n\\ndelivered to him precisely what he purchased. \\n\\n Richards’s contract claim is thus without merit. But even if this were not \\n\\nthe case, Richards still could not prevail. His argument is largely predicated on \\n\\nthe theory that Direct Energy unjustifiably unmoored its variable rate from Direct \\n\\nEnergy’s procurement costs. But Richards focuses exclusively on Direct Energy’s \\n\\npricing practices in 2014 and 2015, yet Richards left Direct Energy in 2013. For \\n\\nthe three months that Richards paid it, the variable rate and Direct Energy’s costs \\n\\nstayed constant, and the variable rate was only 2.36 cents per kWh higher than \\n\\nEversource’s PURA‐approved Standard Service Rate. Cf. 14 David M. Stahl & \\n\\nLisa M. Cipriano, Bus. & Com. Litig. Fed. Cts. § 143:35 (4th ed. 2017) (“[A] filed and \\n\\napproved rate is unassailable in judicial proceedings brought by customers.”). \\n\\nRichards would thus not be a proper plaintiff even if his legal theory had any \\n\\n\\n\\n\\n 22 \\n\\nmerit, which it does not. We therefore affirm the district court’s grant of \\n\\nsummary judgment to Direct Energy on Richards’s contract claim. \\n\\n B \\n\\n The Connecticut Unfair Trade Practices Act (“CUTPA”) prohibits “unfair \\n\\nmethods of competition and unfair or deceptive acts or practices in the conduct of \\n\\nany trade or commerce.” Conn. Gen. Stat. § 42‐110b(a). Under CUTPA, “unfair \\n\\nmethods of competition,” “unfair . . . acts,” and “deceptive acts” are distinct \\n\\ncategories of wrongful conduct. See 12 Robert M. Langer, et al., Conn. Prac., Unfair \\n\\nTrade Practices § 2.3 (2017). Richards argues that Direct Energy’s variable rate \\n\\npricing was (1) deceptive, (2) a per se violation of CUTPA, and (3) unfair. \\n\\nRichards’s CUTPA claims are almost entirely duplicative of his contract claim. \\n\\nThey are also without merit, and we affirm the district court’s grant of summary \\n\\njudgment as to these claims. \\n\\n 1 \\n\\n “An act or practice is deceptive” under CUTPA if the defendant makes a \\n\\nmaterial representation or omission likely to mislead consumers who “interpret \\n\\nthe message reasonably under the circumstances.” Southington Sav. Bank v. \\n\\nRodgers, 668 A.2d 733, 736 (Conn. App. 1995) (quoting Caldor, Inc. v. Heslin, 577 \\n\\n\\n\\n\\n 23 \\n\\nA.2d 1009, 1013 (Conn. 1990)). “The deception standard is objective in nature,” \\n\\nand a representation is deceptive only if it is “‘likely’ to mislead rather than merely \\n\\n[has] the ‘tendency or capacity’ to do so.” Langer, et al., supra, § 2.3 (quoting \\n\\nMatter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 127 (1984) (Pertschuk, Comm’r, \\n\\nconcurring in part and dissenting in part)). A “failure to disclose can be \\n\\ndeceptive only if, in light of all the circumstances, there is a duty to disclose.” \\n\\nNormand Josef Enters., Inc. v. Connecticut Nat’l Bank, 646 A.2d 1289, 1307 (Conn. \\n\\n1994). \\n\\n Richards’s deception claim is identical to his contract claim. He contends \\n\\nthat “reasonable consumers” would likely interpret the Evergreen clause to mean \\n\\nthat the variable rate would reflect “the costs of procuring power . . . plus an \\n\\nappropriate margin to cover the legitimate costs and risks of supplying variable \\n\\nrate customers.” Reply Br. 4, 6 (quoting Confidential App. 44). But as explained \\n\\nabove, the contract unambiguously allowed Direct Energy to set the variable rate \\n\\nthe way it did. See Murphy v. Provident Mut. Life Ins. Co. of Philadelphia, 923 F.2d \\n\\n923, 929–30 (2d Cir. 1990) (holding, in a case predicated on deceptive advertising, \\n\\nthat “[n]o deception can exist where, as here, the parties’” representations are \\n\\n“clear[]”); see also Hinchliffe v. Am. Motors Corp., 471 A.2d 980, 988 (Conn. Super. \\n\\n\\n\\n\\n 24 \\n\\nCt. 1982) (declining “to speculate that the public will place a patently absurd \\n\\ninterpretation” on a representation). Richards is also wrong, for the same reasons \\n\\ngiven above, when he claims that his experts’ views about the Evergreen clause \\n\\nraise a question of fact on this issue. Slapping the phrase “reasonable consumer” \\n\\ninto his argument does not change our earlier analysis in any way. See Fink v. \\n\\nTime Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (“[A] court may determine as a \\n\\nmatter of law that an allegedly deceptive [representation] would not have misled \\n\\na reasonable consumer.”). \\n\\n Accepting Richards’s argument to the contrary would mean, in effect, that \\n\\nif Direct Energy wished to retain the discretion in a contract to set its variable rate \\n\\nbased on a range of business and market conditions, it was required to disclose \\n\\nevery factor influencing that variable rate. But CUTPA imposes no such duty. \\n\\nSee, e.g., Kenney v. Healey Ford‐Lincoln‐Mercury, Inc., 730 A.2d 115, 117 (Conn. App. \\n\\nCt. 1999) (holding that it is not a deceptive trade practice to fail to make certain \\n\\ndisclosures unless the defendant has a preexisting duty to do so). Connecticut, \\n\\nto be sure, requires consumer electricity contracts to explain “the rates that [] \\n\\ncustomer[s] will be paying, including the circumstances under which the rates \\n\\nmay change.” Conn. Gen. Stat. § 16‐245o(f)(2). But PURA determined that the \\n\\n\\n\\n\\n 25 \\n\\nEvergreen clause met this standard when it renewed Direct Energy’s license. \\n\\nRequiring Direct Energy to define “business and market conditions” in greater \\n\\ndetail would override PURA’s certification. Cf. Mead v. Burns, 509 A.2d 11, 19 \\n\\n(Conn. 1986) (holding that CUTPA claims “that build[] upon the public policy \\n\\nembodied in specific statutory provisions . . . must be consistent with the \\n\\nregulatory principles established by the underlying statutes”). \\n\\n 2 \\n\\n Richards’s argument that Direct Energy’s variable rate pricing constituted a \\n\\nper se violation of CUTPA is equally unavailing. As discussed above, Connecticut \\n\\nrequires that “[e]ach contract for electric generation services [] contain all material \\n\\nterms of the agreement,” including “a clear and conspicuous statement explaining \\n\\nthe rates that [each] consumer will be paying” and “the circumstances under \\n\\nwhich the rates may change.” Conn. Gen. Stat. § 16‐245o(f)(2). An electric \\n\\ncompany that violates this provision commits a per se unfair or deceptive trade \\n\\npractice under CUTPA. Id. § 16‐245o(j). \\n\\n Richards contends that Direct Energy violated § 16‐245o(j) because it \\n\\n“misrepresented that it set its variable rate based on ‘business and market \\n\\nconditions’ when it did not.” Pl.‐Appellant Br. 46. But Richards assumes, yet \\n\\n\\n\\n\\n 26 \\n\\nagain, that the Evergreen clause misrepresented Direct Energy’s pricing practices. \\n\\nWe have already rejected that view twice in this opinion. We thus affirm the \\n\\ndistrict court’s grant of summary judgment on Richards’s per se CUTPA claim. \\n\\n 3 \\n\\n Finally, Richards’s claim that Direct Energy’s variable rate pricing \\n\\nconstituted an unfair trade practice under CUTPA is also without merit. A trade \\n\\npractice is unfair under CUTPA if it (1) falls within “the penumbra of some \\n\\ncommon law, statutory, or other established concept of unfairness,” (2) is \\n\\n“immoral, unethical, oppressive, or unscrupulous,” or (3) “causes substantial \\n\\ninjury to consumers . . . .” Votto v. Am. Car Rental, Inc., 871 A.2d 981, 984–85 \\n\\n(Conn. 2005). The “substantial injury to consumers” prong covers conduct that \\n\\nis “substantial,” is not “outweighed by any countervailing benefits,” and causes \\n\\n“an injury that consumers themselves could not reasonably have avoided.” A‐G \\n\\nFoods, Inc. v. Pepperidge Farm, Inc., 579 A.2d 69, 77 (Conn. 1990) (emphasis \\n\\nremoved) (quoting Letter from Federal Trade Commission to Senators Ford and \\n\\nDanforth (Dec. 17, 1980)). \\n\\n Richards’s contentions do not come close to meeting this standard. Run‐\\n\\nof‐the‐mill statutory violations, torts, and contract breaches do not constitute \\n\\n\\n\\n\\n 27 \\n\\nunfair trade practices. See Jacobs v. Healey Ford‐Subaru, Inc., 652 A.2d 496, 506 \\n\\n(Conn. 1995) (explaining that “the violation of a consumer statute” is not “an \\n\\nautomatic violation of CUTPA” unless a statute “expressly” makes it so); Ventres \\n\\nv. Goodspeed Airport, LLC, 881 A.2d 937, 970 (Conn. 2005) (declining to “convert \\n\\nevery trespass claim involving business property into a CUTPA claim”); \\n\\nMetromedia Energy, Inc. v. Mansei, Inc., No. CV136041399S, 2014 WL 7495054, at *4 \\n\\n(Conn. Super. Ct. Nov. 3, 2014) (holding that “an ordinary breach of the contract” \\n\\nwas not unfair under CUTPA). CUTPA thus prohibits only certain particularly \\n\\nabusive commercial practices. See, e.g., A‐G Foods, 579 A.2d at 77 n.9 (recognizing \\n\\nthe core of unfair practices as: “(1) withholding material information; (2) making \\n\\nunsubstantiated advertising claims; (3) using high‐pressure sales techniques; and \\n\\n(4) depriving consumers of various post‐purchase remedies” (quoting Am. Fin. \\n\\nServs. Ass’n v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985)); Votto, 871 A.2d at 985 \\n\\n(holding that charging credit cards without the cardholder’s authorization is \\n\\nunfair under CUTPA). \\n\\n The crux of Richards’s unfairness theory is, once more, his contention that \\n\\nDirect Energy breached the contract by failing to tie its variable rate to “business \\n\\nand market conditions,” which he interprets to mean procurement costs. See Pl.‐\\n\\n\\n\\n\\n 28 \\n\\nAppellant Br. 28 (“Richards’[s] claim is that [Direct Energy] acted in an ‘unfair’ \\n\\nmanner by setting variable rates that violate the terms of its contract and do not \\n\\nfluctuate with ‘business and market conditions.’”). But a “simple contract breach \\n\\nis not sufficient to establish a violation of CUTPA, particularly where the count \\n\\nalleging CUTPA simply incorporates by reference the breach of contract claim.” \\n\\nBoulevard Assocs., 72 F.3d at 1039 (quoting Chaspek Mfg. Corp. v. Tandet, No. CV \\n\\n9309‐2714, 1995 WL 447948, at *12 (Conn. Super. Ct. June 16, 1995)). So even if \\n\\nRichards had made out a contract claim — and he has not — this central feature of \\n\\nhis CUTPA unfairness theory would be meritless. See Ramirez v. Health Net of Ne., \\n\\nInc., 938 A.2d 576, 591 (Conn. 2008) (holding that a defendant did not violate \\n\\nCUTPA when it “availed itself of the rights afforded under the plain and \\n\\nunambiguous terms of [an] agreement”). \\n\\n Richards argues that his unfairness claim extends further and does not turn \\n\\non his contract claim alone. Specifically, he objects to Direct Energy’s supposed \\n\\npractice of (1) “lur[ing]” consumers with “teaser‐rates,” and later (2) “goug[ing] \\n\\n[them] with variable rates” that (3) “consumers [do] not monitor.” Pl.‐Appellant \\n\\nBr. 44. In his view, these practices raise a question of fact as to whether Direct \\n\\n\\n\\n\\n 29 \\n\\nEnergy’s pricing strategy was unfair. We consider each component of his \\n\\nargument in turn. \\n\\n First, offering a teaser rate is not against public policy, unethical, or \\n\\nsubstantially injurious on its own, especially when, as here, consumers can cancel \\n\\nthe contract whenever they like without paying any fee. See A‐G Foods, 579 A.2d \\n\\nat 77 (holding that a trade practice does not cause a substantial injury under \\n\\nCUTPA if a consumer could have reasonably avoided it). Richards himself is a \\n\\ncase in point as to why this is so: He chose to sign with Direct Energy because it \\n\\noffered the best fixed rate available. That saved him more than $100 over the \\n\\nStandard Service Rate during the first twelve months of his contract with Direct \\n\\nEnergy — hardly a “substantial injury.” Votto, 871 A.2d at 985. \\n\\n Second, Richards’s contention that the variable rates were so high that “no \\n\\nrational consumer” would voluntarily sign a variable rate contract, Reply Br. 5, is \\n\\nirrelevant for at least two reasons. First, he did not sign a variable rate contract; \\n\\nhe signed a fixed rate contract that rolled over into a variable rate after a set time. \\n\\nAs already noted, this at first saved him money, as compared to the Standard \\n\\nService Rate, and ultimately cost him only about $1.67 per month above the \\n\\nStandard Service Rate during his time with Direct Energy. And regardless, \\n\\n\\n\\n\\n 30 \\n\\ncharging high prices does not on its own give rise to a CUTPA violation. See, e.g., \\n\\nBridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 566 F. Supp. 2d 81, \\n\\n105 (D. Conn. 2008) (Droney, J.) (“[T]he plaintiffs have not shown that the Port \\n\\nAuthority’s imposition of an excessive passenger fee is an unfair trade practice by \\n\\nthe preponderance of the evidence.”). Even Richards concedes as \\n\\nmuch — several times. See, e.g., Pl.‐Appellant Br. 43 (“It is true that pricing \\n\\npractices “alone” may not give rise to a CUTPA unfairness claim.”); id. at 45; Reply \\n\\nBr. 17. \\n\\n Richards’s unfair practices claim thus ultimately depends on his assertion \\n\\nthat charging a variable rate that “consumers [do] not monitor” is a violation of \\n\\nCUTPA. Pl.‐Appellant Br. 44. But he supplies no legal authority for this \\n\\nproposition. Presumably, what bothers Richards is that many Direct Energy \\n\\nconsumers pay the variable rate when their initial fixed‐rate periods expire, even \\n\\nthough leaving their contracts would likely save them money. See id. at 44 \\n\\n(asserting that “no reasonable consumer . . . would remain enrolled in a [Direct \\n\\nEnergy] variable rate plan”). But this is just an example of “status quo bias”: a \\n\\ngeneral tendency by people “to stick with their current situation.” Richard H. \\n\\nThaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and \\n\\n\\n\\n\\n 31 \\n\\nHappiness 34 (2008). All sorts of companies design their business strategies with \\n\\nthe expectation that consumers act this way.8 Many magazines and gyms, for \\n\\nexample, offer initial discounts on subscriptions and membership on the \\n\\nassumption that they can make up the loss if customers either decide they like the \\n\\nproduct or, crucially, forget to cancel. 9 And Connecticut law is clear that \\n\\n\\n\\n 8 The core of the dissent’s unfairness argument is thus similarly meritless. \\n“People are inertial” and “not attentive,” the dissent proclaims, Dissenting Op. at 7, 8, and \\ntherefore Direct Energy has violated the law by “exploit[ing] those consumer \\nvulnerabilities,” id. at 7 (citing Neil W. Averitt, The Meaning of “Unfair Acts or Practices” in \\nSection 5 of the Federal Trade Commission Act, 70 Geo. L.J. 225 (1981)). But the only \\n“vulnerability” that Direct Energy has purportedly “exploited” is our basic tendency to \\nbe creatures of habit—a far cry from the targeting of traditionally “legally vulnerable” \\ngroups like children, the insane, the seriously ill, the bereaved, or the physically \\ndependent, see Averitt, 70 Geo. L.J. at 256. In our view, no reasonable jury could find \\nthe former tactic unfair under the circumstances presented here. \\n Nor can the dissent rely on the unfounded assertion that Direct Energy has \\nengaged in “strategies to avoid alerting customers to their rising rates.” Dissenting Op. \\nat 9. That charge is baseless. In a footnote, the dissent references a factual dispute \\nabout whether Direct Energy mailed notices to its consumers to notify them that their \\nfixed rate periods would soon expire. But whether Direct Energy took it upon itself to \\nremind customers of the terms of the contracts that they themselves had willingly signed, \\nnothing in the record suggests that Direct Energy erected any affirmative barriers to its \\ncustomers exiting those contracts at will. We reject the dissent’s attempt to impose \\nadditional affirmative duties under the aegis of CUTPA, a maneuver that Connecticut \\ncourts have previously rejected. See Normand Josef Enters., 646 A.2d at 1307; Kenney, \\n730 A.2d at 117. \\n See, e.g., Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About \\n 9\\n\\nHealth, Wealth, and Happiness 35 (2008) (“American Express wrote [Cass] Sunstein a \\ncheerful letter telling him that he could receive, for free, three‐month subscriptions to five \\nmagazines of his choice. Free subscriptions seem like a bargain, even if the magazines \\nrarely get read, so Sunstein happily made his choices. What he didn’t realize was that \\nunless he took some action to cancel his subscription, he would continue to receive the \\n\\n 32 \\n\\nwidespread business practices that are consistent with “common business norms” \\n\\ndo not violate CUTPA. Landmark Inv. Grp., LLC v. Calco Const. & Dev. Co., 60 A.3d \\n\\n983, 992 (Conn. App. 2013).10 It is therefore clear to us that Direct Energy’s pricing \\n\\nstrategy during the term of its relationship with Richards was not against public \\n\\npolicy, immoral, or substantially injurious. \\n\\n At bottom, Richards signed a contract guaranteeing him a below‐market \\n\\nrate, which he paid for twelve months. For three months after that, he paid \\n\\napproximately two cents above the PURA‐approved Standard Service Rate. He \\n\\nthen left the contract without penalty. Richards now asks us to invalidate a \\n\\nPURA‐approved contract that he chose after considering more than forty private \\n\\noptions and the PURA‐approved Standard Service Rate. And he does so while \\n\\n\\n\\n\\nmagazines, paying for them at the normal rate. For about a decade, he has continued to \\nsubscribe to magazines that he hardly ever reads.”). \\n 10 In response, the dissent quotes a Connecticut Superior Court decision for the \\nproposition that “[t]he fact that the defendant’s practice is standard in the industry . . . \\ndoes not excuse it as a violation of CUTPA.” Dissenting Op. at 3 (quoting Halloran v. \\nSpillane’s Servicenter, Inc., 41 Conn. Supp. 484, 500 (Conn. Super. Ct. 1990)). But this \\ncomparison ignores the substantial daylight between a standard practice within a single \\nindustry and common business norms across many industries. Halloran involved a \\ntowing company’s refusal to release a vehicle owner’s personal possessions before \\npayment of all fees connected with the towing service, id. at 488—apparently a common \\npractice within the Connecticut towing business at the time, id. at 500. That conduct \\nbears no analogy to quotidian pricing practices like Direct Energy’s, which have long \\nbeen mainstream across numerous sectors of American commerce. \\n\\n\\n 33 \\n\\nconceding that Direct Energy’s pricing practices were akin to those of its \\n\\ncompetitors. See Reply Br. 17 n.12 (characterizing the private electricity market \\n\\nas a “corrupt industr[y]”). But Connecticut chose to deregulate consumer \\n\\nelectricity ratemaking, not transfer that authority from a public utility commission \\n\\nto the after‐the‐fact judgments of courts interpreting CUTPA. See Mead, 509 A.2d \\n\\nat 19 (holding that CUTPA claims “that build[] upon the public policy embodied \\n\\nin specific statutory provisions . . . must be consistent with the regulatory \\n\\nprinciples established by the underlying statutes”); see also Conn. Gen. Stat. § 42‐\\n\\n110c (prohibiting suits under CUTPA for “actions otherwise permitted under law \\n\\nas administered by any regulatory board”). We therefore conclude that \\n\\nRichards’s CUTPA claim is without merit and that the district court’s partial grant \\n\\nof summary judgment as to this claim should be affirmed. \\n\\n II \\n\\n Richards next challenges the district court’s dismissal of his unjust \\n\\nenrichment and Massachusetts state law claims. We review de novo a district \\n\\ncourt’s dismissal on the pleadings, “accepting all factual allegations as true and \\n\\ndrawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. \\n\\nEng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “To \\n\\n\\n\\n\\n 34 \\n\\nsurvive a motion to dismiss, a complaint must contain sufficient factual matter, \\n\\naccepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft \\n\\nv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, \\n\\n570 (2007)). \\n\\n A \\n\\n The district court held that Richards failed to state a claim for unjust \\n\\nenrichment because he signed a contract with Direct Energy. See also Meaney v. \\n\\nConnecticut Hosp. Ass’n, Inc., 735 A.2d 813, 823 (Conn. 1999) (“[A]n express contract \\n\\nbetween the parties precludes recognition of an implied‐in‐law contract governing \\n\\nthe same subject matter.” (quoting 1 E. Farnsworth, Contracts § 2.20 (2d ed. 1998)). \\n\\nRichards contends that this was error. He agrees with the district court that he \\n\\nand Direct Energy had an enforceable contract in principle. But he argues in the \\n\\nalternative that if this contract did not “prevent [Direct Energy’s] predatory \\n\\nconduct, then the contract [was] illusory[,] and [he] is entitled to recovery under \\n\\nunjust enrichment.” Reply Br. 31–32. We disagree. \\n\\n The contract was not illusory. The implied covenant of good faith and fair \\n\\ndealing obliged Direct Energy to act in good faith when it set the variable rate, and \\n\\n“good faith is enough to avoid the finding of an illusory promise.” Sicaras v. City \\n\\n\\n\\n\\n 35 \\n\\nof Hartford, 692 A.2d 1290, 1297 (Conn. App. Ct. 1997) (quoting 2 A. Corbin, \\n\\nContracts § 5.28 (Rev. Ed. 1995)). Because Richards and Direct Energy had a \\n\\nbinding contract, Richards could not plead an unjust enrichment claim. We \\n\\ntherefore affirm the district court on this issue. \\n\\n B \\n\\n Finally, we turn to Richards’s unfair trade practices claims under \\n\\nMassachusetts law. The district court dismissed these claims for lack of Article \\n\\nIII standing because Richards was not injured in Massachusetts. This was error. \\n\\nA plaintiff has Article III standing if he suffered (1) an injury, (2) caused by the \\n\\ndefendant that (3) would be redressed by a favorable judicial decision. See, e.g., \\n\\nMahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). There is no question \\n\\nthat Richards satisfies this standard: he was (1) charged money, (2) by Direct \\n\\nEnergy, and (3) seeks recompense for this charge. To be sure, whether a statute \\n\\ngrants a plaintiff a cause of action will often turn on where the tortious conduct \\n\\noccurred. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010) \\n\\n(“[T]o ask what conduct [a statute] reaches is to ask what conduct [that statute] \\n\\nprohibits, which is a merits question.”). But “the absence of a valid . . . cause of \\n\\naction does not implicate” Article III standing. Lexmark Int’l, Inc. v. Static Control \\n\\n\\n\\n\\n 36 \\n\\nComponents, Inc., 572 U.S. 118, 128 n.4 (2014) (quoting Verizon Md., Inc. v. Pub. Serv. \\n\\nComm’n of Md., 535 U.S. 635, 642–43 (2002)). \\n\\n We still affirm the district court’s dismissal of Richards’s Massachusetts \\n\\nclaims, however, because dismissal was proper under Federal Rule of Civil \\n\\nProcedure 12(b)(6). See Sharkey v. Quarantillo, 541 F.3d 75, 92 (2d Cir. 2008) \\n\\n(“Although the district court erroneously dismissed the action pursuant to Rule \\n\\n12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise \\n\\nproper based on failure to state a claim under Federal Rule of Civil Procedure \\n\\n12(b)(6).” (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. \\n\\nCir. 1997)). Here, Richards failed to state a claim because Massachusetts does not \\n\\ngive plaintiffs a cause of action for unfair or deceptive acts that “occur[] outside” \\n\\nMassachusetts. Skyhook Wireless, Inc. v. Google Inc., 19 N.E.3d 440, 449 (Mass. \\n\\nApp. Ct. 2014). Beyond this statutory hurdle, the United States Constitution \\n\\nwould also bar Massachusetts from regulating, via consumer protection law, the \\n\\nrates that Direct Energy charged consumers in Connecticut. See, e.g., Baldwin v. \\n\\nG.A.F. Seelig, Inc., 294 U.S. 511, 528 (1935) (holding that the Dormant Commerce \\n\\nClause prohibits one state from “establish[ing] . . . a scale of prices for use in other \\n\\nstates”); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003) \\n\\n\\n\\n\\n 37 \\n\\n(holding that a state may not “punish a defendant for conduct that may have been \\n\\nlawful where it occurred”). \\n\\n Richards does not challenge any of this on appeal but instead argues that he \\n\\nhas “‘class standing’ . . . to assert claims on behalf of” Direct Energy’s Massachusetts \\n\\ncustomers, even if he cannot personally assert any claims under Massachusetts law. \\n\\nNECA‐IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d \\n\\nCir. 2012). But the district court’s August 4, 2015 decision was not to the contrary. \\n\\nThe court held merely that Richards could not sue on his own behalf under \\n\\nMassachusetts law; it did not opine on whether a plaintiff asserting claims under \\n\\nConnecticut law could represent a class of consumers asserting claims under \\n\\nMassachusetts law. The court never had cause to reach the latter issue because it \\n\\nnever addressed the issue of class certification. Instead, it dismissed Richards’s \\n\\nmotion for certification as moot in March 2017 because he no longer had any viable \\n\\nclaims under Connecticut law. Richards does not challenge this dismissal on \\n\\nappeal. \\n\\n Accordingly, we have no occasion to address whether Article III would have \\n\\nprevented Richards from representing a class of plaintiffs with claims under \\n\\nMassachusetts law. But see Langan v. Johnson & Johnson Consumer Companies, Inc., \\n\\n\\n\\n\\n 38 \\n\\nNo. 17‐1605, 2018 WL 3542624, at *6 (2d Cir. July 24, 2018) (holding that “whether \\n\\na plaintiff can bring a class action under the state laws of multiple states is a \\n\\nquestion of predominance under Rule 23(b)(3), not a question of standing under \\n\\nArticle III”). We therefore affirm the district court’s August 4, 2015 partial \\n\\ndismissal as to the Massachusetts claims. \\n\\n CONCLUSION \\n\\n We have considered each of Richards’s remaining arguments and have \\n\\ndetermined them to be without merit. Accordingly, the judgment of the district \\n\\ncourt is AFFIRMED. \\n\\n\\n\\n\\n 39\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364329/\", \"author_raw\": \"DEBRA ANN LIVINGSTON, Circuit Judge:\"}, {\"author\": \"POOLER, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"POOLER, Circuit Judge, concurring in part and dissenting in part: \\n\\n Direct Energy sucked customers in with an appealing teaser rate only to \\n\\nlater jack up the cost when those customers would not notice. The temptation of \\n\\nthis siren‐like path was no accident. Direct Energy created “glide paths” to ensure \\n\\ncustomers were lulled into inattentiveness. It ramped up rates for those who were \\n\\ninattentive to begin with. And then it capitalized on its customers’ lack of \\n\\nawareness. I am convinced that a jury could reasonably conclude that this pricing \\n\\npractice is unfair. Accordingly, I dissent from the majority’s conclusion that Direct \\n\\nEnergy did not commit an unfair practice or breach its contract with its customers. \\n\\nHowever, I concur that Direct Energy did not, as a matter of law, engage in \\n\\ndeceptive practices, commit a per se CUTPA violation, or breach any implied \\n\\ncontract. \\n\\n Utility deregulation initially promised that introducing competition would \\n\\nmake electricity and gas service more reliable at lower prices, perhaps even \\n\\nencouraging green energy alternatives. Those hopes have run up against \\n\\nunforeseen realities. See generally Electricity Deregulation: Choices and Challenges 145 \\n\\n(James M. Griffin & Steven L. Puller eds., 2005). This suit is one of a wave of cases \\n\\nto hit the courts alleging that electricity providers like Direct Energy are \\n\\n\\n\\n\\n 40 \\n\\nmanipulating their pricing structures to enable them to charge well more than the \\n\\nregulated rate for the same service without their customers’ noticing. Competition \\n\\ncannot deliver its advertised benefits when businesses subvert consumer choice in \\n\\nthis way. When the legislature has given courts tools to address such abuses, we \\n\\nshould not shy away from using them with the expectation that the market will \\n\\nwork itself out. Doing so relies on our hopes for, rather than the reality of, market \\n\\ncompetition. \\n\\n A reasonable jury could easily conclude that at least part of Direct Energy’s \\n\\nbusiness model was to predict, encourage, and profit off of its customers’ \\n\\ninattention. Direct Energy does not dispute that it set its variable rates as high as \\n\\nit possibly could without attracting the attention of its customers. That includes \\n\\nsetting higher rates for a subset of customers who would be less likely to notice \\n\\nand creating “glide paths” to make all of its customers less likely to notice. A \\n\\nreasonable jury could also conclude that the letter and spirit of Direct Energy’s \\n\\nboilerplate contract language did not allow for those pricing practices. \\n\\n A. Unfairness under CUTPA \\n\\n Connecticut courts “have adopted the criteria set out in the cigarette rule by \\n\\nthe Federal Trade Commission for determining when a practice is unfair [under \\n\\n\\n\\n\\n 41 \\n\\nCUTPA]: (1) whether the practice, without necessarily having been previously \\n\\nconsidered unlawful, offends public policy as it has been established by statutes, \\n\\nthe common law, or otherwise—in other words, it is within at least the penumbra \\n\\nof some common law, statutory, or other established concept of unfairness; (2) \\n\\nwhether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it \\n\\ncauses substantial injury to consumers, competitors, or other businesspersons.” \\n\\nLandmark Inv. Grp., LLC v. Calco Constr. and Dev. Co., 318 Conn. 847, 880 (2015) \\n\\n(brackets omitted). \\n\\n The majority errs in finding “Connecticut law … clear that widespread \\n\\nbusiness practices that are consistent with ‘common business norms’ do not violate \\n\\nCUTPA.” Majority op. at 32 (quoting Landmark Inv. Grp., LLC v. Calco Constr. and \\n\\nDev. Co., 141 Conn. App. 40, 55 (Conn. App. 2013)). To the contrary: in Connecticut, \\n\\n“[t]he fact that the defendant’s practice is standard in the industry … does not \\n\\nexcuse it as a violation of CUTPA.” Halloran v. Spillane’s Servicenter, Inc., 41 Conn. \\n\\nSupp. 484, 500 (Conn. Super. Ct. 1990) (emphasis added). “Common business \\n\\nnorms” are to be considered at most as part of a court’s determination of whether \\n\\nthe criterion of unscrupulousness is satisfied, not as dispositive evidence of what \\n\\nis and is not unfair. \\n\\n\\n\\n\\n 42 \\n\\n That a business practice has “not previously [been] considered unlawful” \\n\\ncannot be considered a defense, as the purpose of unfairness doctrine is “to create \\n\\na new body of law … adapted to the diverse and changing needs of a complex and \\n\\nevolving competitive system.” In re Pfizer Inc., 81 F.T.C. 23, 28 (1972); see also Sperry \\n\\n& Hutchinson, 405 U.S. 233, 244 (1972) (comparing the FTC to a “court of equity”). \\n\\nMy colleagues suggest that in Connecticut unfairness is a rarity and “the core of \\n\\nunfair practices [is]: ‘withholding material information; (2) making \\n\\nunsubstantiated advertising claims; using high‐pressure sales techniques; and (4) \\n\\ndepriving consumers of various post‐purchase remedies.’” Majority op. at 28 \\n\\n(citing A‐G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 216 n.9) (Conn. 1990) \\n\\n(quoting Am. Fin. Servs. Ass’n v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985)). But \\n\\nneither Connecticut law nor unfairness jurisprudence more generally has \\n\\nrestricted the doctrine to those categories. 1 And more recent FTC enforcement \\n\\n\\n 1 Those categories were identified in 1981 by an FTC staffer as an effort to \\n“catalogu[e] some of the most common commercial practices whose unfairness … has \\nalready been litigated and established” up to that point and not to “settle any controversy \\nabout how [unfairness] ought to be used.” Richard Craswell, The Identification of Unfair \\nActs and Practices by the Federal Trade Commission, 81 Wisc. L. Rev. 107, 108‐09 (1981). The \\nD.C. Circuit referred to them in considering the meaning of “unfairness”—correctly \\nidentifying them as emanating from an “article authored by a member of the [FTC’s] \\nOffice of Planning,” rather than the FTC itself. Am. Fin. Servs. Ass’n, 767 F.2d at 979. \\nConnecticut’s Supreme Court quoted the D.C. Circuit decision in a footnote of just one of \\nits decisions, incorrectly identifying the categories as promulgated by the FTC and never \\nsuggesting that they restricted the universe of unfair practices. A‐G Foods, Inc., 216 Conn. \\n\\n 43 \\n\\nactions—targeting data privacy breaches, for instance—suggest that unfairness \\n\\ndoctrine continues to evolve beyond the purported “core” my colleagues identify. \\n\\nCf., e.g., F.T.C. v. Wyndham Worldwide Corp., 799 F.3d 236 (3d Cir. 2015) (upholding \\n\\nan FTC enforcement against a hotel chain that had extremely lax cybersecurity \\n\\nprotecting its customers’ financial and personal identifying information). \\n\\n Here, a reasonable jury could conclude that Direct Energy’s pricing strategy \\n\\nwas an unfair practice. “Whether a practice is unfair and thus violates CUTPA is \\n\\nan issue of fact.” Landmark, 318 Conn. at 881 (brackets and internal quotation \\n\\nmarks omitted). Accordingly, our task at this stage is not to determine whether \\n\\nDirect Energy’s practices were unfair or not. Instead, the grant of summary \\n\\njudgment should be affirmed only if it can be concluded that no reasonable jury\\n\\ncould find Direct Energy’s practices were unfair on any of the cigarette rule’s \\n\\ncriteria. \\n\\n The FTC considers the third prong of the cigarette test—sometimes called \\n\\n“unjustified consumer injury”—as “the primary focus of the FTC Act.” Letter from \\n\\nFederal Trade Commission to Senators Ford and Danforth (Dec. 17, 1980), available \\n\\nat http://www.ftc.gov/bcp/policystmt/ad‐unfair.htm (“FTC Policy Statement”). \\n\\n\\n\\nat 216 n.9. \\n\\n\\n 44 \\n\\nFollowing the Connecticut legislature’s directive to be “guided by interpretations \\n\\ngiven by the Federal Trade Commission and the federal courts to [the FTC Act],” \\n\\nConn. Gen. Stat. § 42‐110b(b), the Connecticut Supreme Court has acknowledged \\n\\nthat unjustified consumer injury is “the most important of the three … criteria” in \\n\\nthe cigarette rule, A‐G Foods, Inc., 216 Conn. at 215‐16 (internal quotation marks \\n\\nomitted). \\n\\n Connecticut courts have also adopted the FTC’s guidance that an “injury \\n\\nmust satisfy three tests” to be considered unfair: “[1] [i]t must be substantial; [2] it \\n\\nmust not be outweighed by any countervailing benefits to consumers or \\n\\ncompetition that the practice produces; and [3] it must be an injury that consumers \\n\\nthemselves could not reasonably have avoided.” Id. at 216 (quoting FTC Policy \\n\\nStatement, supra) (emphasis removed). The majority deems Richards’s individual \\n\\nharm insubstantial, but that misses the point. For an injury to be substantial, “it \\n\\nneed not take the form of a single crushing loss.” Neil W. Averitt, The Meaning of \\n\\n“Unfair Acts or Practices” in Section 5 of the Federal Trade Commission Act, 70 Geo. L.J. \\n\\n225, 246 (1981). Instead, “[a] recognizable harm may be one that does great injury \\n\\nto a small number of people, or small injury to a great number of people.” Id. Here, \\n\\nRichards purports to represent a class of consumers who, in the aggregate, have \\n\\n\\n\\n\\n 45 \\n\\nlost $11.2 million—plainly a substantial injury.2 \\n\\n Though the majority asserts that we should categorically exclude the \\n\\npossibility that “offering a teaser rate” is “substantially injurious on its own, \\n\\nespecially when, as here, consumers can cancel the contract whenever they like \\n\\nwithout paying any fee,” Majority op. at 30, they offer no good reason why that \\n\\nshould be so. As they acknowledge, the mere fact that a customer can opt out of \\n\\nan auto‐renewing contract at any time without breaching it does not mean that the \\n\\ncustomers will do so when it is in their interest. People are inertial. The same \\n\\npeople who spend hours comparing electricity prices (or credit card rates or online \\n\\nstreaming services or magazine subscriptions or gym memberships) are quite \\n\\nunlikely to maintain that level of vigilance once they have habitually received and \\n\\npaid for electricity (or other goods or services) for months or years on end. \\n\\nUnfairness doctrine is designed to police such circumstances when businesses \\n\\nexploit those consumer vulnerabilities. Cf. Averitt, The Meaning of “Unfair Acts or \\n\\n\\n 2 This number represents the amount of money Direct Energy made on its \\nvariable‐rate customers less the amount of money it would have made if it had added the \\nsame mark‐up it does for its fixed‐rate customers (which Direct Energy itself referred to \\nas its “benchmark” profit margin). In other words, it takes into account the costs Direct \\nEnergy actually paid and the mark‐up it uses in its own accounting. It does not, contrary \\nto my colleagues’ suggestions, represent the amount by which Direct Energy’s variable \\nrate prices exceed the regulated rate. That amount is $29 million—or nearly three times \\nas much. \\n\\n\\n 46 \\n\\nPractices”, 70 Geo. L.J. at 251‐52 (“An unfairness action … will be appropriate only \\n\\nwhen the respondent’s methods have undermined the ability of consumers to \\n\\nprotect themselves.”). A business that designs its price structure so that those who \\n\\nare not attentive pay significantly more than they would if they were attentive is \\n\\nfairly characterized as causing unjustified consumer injury. Direct Energy does not \\n\\ndispute that it set variable rates as high as it could without attracting the attention \\n\\nof customers whom it knew would be paying little attention or that, if its \\n\\ncustomers had been paying attention, they would have been better off. A jury \\n\\nshould decide if such practice is unfair. \\n\\n The majority notes that Richards saved money during the teaser/fixed rate \\n\\nperiod of the contract relative to those who paid the regulated rate—something \\n\\nthat seems to be true of many of Direct Energy’s customers. But that fact is entirely \\n\\nconsistent with Richards’s theory of the case: Direct Energy undercut other \\n\\nsuppliers’ prices to lure customers in, knowing that it could overcharge them once \\n\\nthey had been customers long enough. In other words, had Richards not saved \\n\\nduring the fixed term, Direct Energy would never have been able to overcharge. \\n\\nThat it took only three months of inattention after the fixed rate’s expiration to \\n\\n\\n\\n\\n 47 \\n\\nvitiate a full year’s worth of savings provides support for Richards’s theory.3 \\n\\n A jury could reasonably find that Direct Energy’s strategies to avoid alerting \\n\\ncustomers to their rising rates,4 together with predictable consumer inertia, imply \\n\\nthat consumers could not reasonably avoid paying the higher rates. Only those \\n\\nwho are most anxious about money or most scrupulous about their affairs are \\n\\nlikely to pay close attention to the rate they are charged for energy (rather than the \\n\\ngross amount, which varies seasonally and may be due to one’s own changes in \\n\\nenergy use) and to engage in monthly price comparisons of this rate. \\n\\n The majority reasons that the fact that “Connecticut chose to deregulate \\n\\nconsumer electricity ratemaking” suggests that it did not seek to “transfer that \\n\\nauthority from a public utility commission to the after‐the‐fact judgments of courts \\n\\n\\n\\n\\n 3 The majority harps on the fact that Richards’s rate was around “two cents above \\nthe PURA‐approved Standard Service Rate” when his variable‐rate contract kicked in. \\nMajority op. at 33. That is a misleading way to put it. We have to take scale into account: \\nthe Standard Service Rate during this period was around eight cents per kilowatt hour. \\nTwo cents above the Standard Service rate is thus 125% of the Standard Service Rate. By \\ncomparison, Richards’s fixed rate price of $.0745 only saved him approximately one half \\na cent per month, or 6% of the Standard Service Rate. \\n 4 Direct Energy claims that it sent notices in the mail to its customers indicating \\nthat the fixed rate period was about to expire, although Connecticut’s electricity \\nregulator, PURA, made a finding in 2015 that Direct Energy had failed to do so in at least \\nsome cases. See Richards v. Direct Energy Servs., LLC, 246 F. Supp. 3d 538, 555‐56 (D. Conn. \\n2017). Even if Direct Energy did send such notices to all of its customers, it clearly could \\nhave done more if it truly wanted them to switch back to a fixed‐rate plan. \\n\\n\\n 48 \\n\\ninterpreting CUTPA.” Maj. op. at 33. But to infer the latter from the former is to \\n\\noverread the meaning of “deregulate.” As it is used in the context of electricity \\n\\n(and other utilities), “deregulation” is shorthand only for a state’s decision to allow \\n\\nmore than one company to sell electricity to its residents. Electricity provision is \\n\\nstill highly regulated: public utilities still own and operate the physical \\n\\ninfrastructure (i.e. the wires, poles, transformers, etc.) subject to state regulation; \\n\\nonly licensed companies can use this infrastructure to provide electricity; those \\n\\ncompanies are required to make a number of disclosures and to meet several state‐\\n\\npromulgated standards; electricity markets largely take place on exchanges \\n\\ncreated, managed, and regulated by the state; the prices electricity companies \\n\\ncharge are affected by the fact that they have to compete with the still‐regulated \\n\\nrates of the public utilities; etc. A state that chooses to regulate its electricity \\n\\nprovision in part through managed competition does not retreat from any \\n\\nregulation whatsoever. \\n\\n B. Good Faith and Breach of Contract \\n\\n I also disagree with my colleagues that “Richards’s CUTPA claims are \\n\\nalmost entirely duplicative of his contract claim.” Maj. op. at 23. Even if Direct \\n\\nEnergy reserved itself absolute discretion in the contract, it is reasonable for a jury \\n\\n\\n\\n\\n 49 \\n\\nto conclude that it took advantage of its customers. I now turn to whether Direct \\n\\nEnergy’s contract permitted it to set prices in the way it did. A reasonable jury \\n\\ncould conclude that the contract did not enable Direct Energy’s practices. \\n\\n First, it is not a foregone conclusion that cross‐subsidization, pegging prices \\n\\nto competitors’, and price smoothing are pricing strategies that are “based upon \\n\\nbusiness and market conditions.” Maj. op. at 18. The majority concludes that since \\n\\nany condition Direct Energy faces is either a “business condition” or a “market \\n\\ncondition,” Direct Energy has effectively granted itself unmitigated discretion to \\n\\nset prices. If its customers don’t like the price they are getting, the majority reasons, \\n\\nthose customers can leave. \\n\\n Just as reasonable, though, is the interpretation that the phrase “business \\n\\nand market conditions” only includes those conditions that affect Direct Energy’s \\n\\ncosts of providing electricity. On this reading, “business conditions” refers to \\n\\nrelatively fixed costs of labor, facilities, legal representation, and the like, while \\n\\n“market conditions” refers to the more variable cost of purchasing electricity and \\n\\nelectricity derivatives. Cf. Mirkin v. Viridian Energy, Inc., No. 15‐cv‐1057, 2016 WL \\n\\n3661106, at *8 (D. Conn. July 5, 2016) (discussing a contract that included “a \\n\\nvariable rate based on wholesale market conditions” as a basis to find a breach \\n\\n\\n\\n\\n 50 \\n\\nwhen prices were not set based on wholesale prices); Edwards v. N. Am. Power & \\n\\nGas, LLC, 120 F. Supp. 3d 132, 143 (D. Conn. 2015) (“While the text of the contract \\n\\nitself does not indicate that NAPG prices would definitively or precisely be linked \\n\\nwith the wholesale market price, with or without the marketing materials, it is \\n\\nplausible that a reasonable consumer would infer a direct link between the two.”); \\n\\nClaridge v. N. Am. Power & Gas, LLC, No. 15‐cv‐1261, 2015 WL 5155934, at *4‐6 \\n\\n(S.D.N.Y. Sept. 2, 2015) (finding bad faith on a contract that guaranteed “variable \\n\\nmarket rates” according to an unspecified formula). Direct Energy notified \\n\\nconsumers that its variable rates would be calibrated to pass on its costs—i.e. there \\n\\nwould be risk‐sharing—but did not place customers on notice that it would set \\n\\nprices in whatever matter it calculated to be most profitable. \\n\\n In Connecticut, “[w]hen the language of a contract is ambiguous, the \\n\\ndetermination of the partiesʹ intent is a question of fact” to be submitted to a jury. \\n\\nGabriel v. Gabriel, 324 Conn. 324, 341 (2016). “In choosing among the reasonable \\n\\nmeanings of a promise or agreement or a term thereof, that meaning is generally \\n\\npreferred which operates against the party who supplies the words or from whom \\n\\na writing otherwise proceeds.” Restatement (Second) of Contracts § 206; see also \\n\\nWilliston on Contracts § 32:13 (4th ed. 2017). A reasonable juror could find that \\n\\n\\n\\n\\n 51 \\n\\nDirect Energy tied its price‐setting discretion to its cost of doing business. Cf. Silvis \\n\\nv. Ambit Energy L.P., 674 F. Appʹx 164, 168 (3d Cir. 2017) (finding that a clause that \\n\\npermitted price to “vary dependent upon price fluctuations in the energy and \\n\\ncapacity markets” was ambiguous because it was unclear whether the phrase \\n\\n“may vary” afforded the electricity supplier complete discretion in setting rates, \\n\\nor whether that discretion was limited by the clause “dependent upon price \\n\\nfluctuations in the energy and capacity markets”). \\n\\n Under Connecticut law, when a contract gives one party discretion to \\n\\ndetermine how to render performance on an open‐ended term, “it is axiomatic that \\n\\nthe duty of good faith and fair dealing” is read into the contract to cabin that \\n\\ndiscretion and avoid rendering the obligation illusory. De La Concha of Hartford, \\n\\nInc. v. Aetna Life Ins. Co., 269 Conn. 424, 432 (2004) (internal punctuation and \\n\\nquotation marks omitted). “The majority of courts have held that subjective bad \\n\\nfaith is irrelevant” and that a seller who objectively does not “charge commercially \\n\\nreasonable amounts” or who “discriminate[s] among its purchasers” fails to act in \\n\\ngood faith. Marcus Dairy, Inc. v. Rollin Dairy Corp., No. 05‐cv‐589, 2008 WL 4425954, \\n\\nat *8 (D. Conn. Sept. 24, 2008) (internal quotation marks omitted). In Connecticut, \\n\\n“a neglect or refusal to fulfill some duty … not prompted by an honest mistake as \\n\\n\\n\\n\\n 52 \\n\\nto one’s rights or duties, but by some interested or sinister motive” may suffice to \\n\\ndemonstrate bad faith. De La Concha, 269 Conn. at 433 (quoting Habetz v. Condon, \\n\\n224 Conn. 231, 237 (1992)). \\n\\n Whether a party has acted in good faith or not is a question of fact for the \\n\\njury. See Renaissance Mgmt. Co. v. Conn. Housing Fin. Auth., 281 Conn. 227, 240‐41 \\n\\n(2007). The facts on this record would allow a jury to conclude that Direct Energy’s \\n\\npricing practices undermined the legitimate expectations5 set by the contract. It is \\n\\nuncontested that Direct Energy set monthly variable rate prices for reasons other \\n\\nthan passing on the cost of providing electricity for that month. It raised variable‐\\n\\nrate prices to recoup anticipated losses among fixed‐rate customers, and it \\n\\nsmoothed variable‐rate prices so that customers would not notice how high they \\n\\nwere getting. A jury should determine whether Direct Energy’s reasons amounted \\n\\nto bad faith or a breach of the contract given the letter and spirit of the contract—\\n\\na question this Court should not answer in the jury’s place. Cf. Edwards, 120 F. \\n\\nSupp. 3d at 147 (“While the contract left the price open to be set at NAPGʹs \\n\\n\\n 5 Consumers’ expectations about the meaning of a term in the fine print of an \\nadhesive contract are nearly always legal fictions, but the law is clear that they are fictions \\non which we are to rely. One recent suggestion to tether these fictions to reality is the \\nadmission of survey evidence on what particular passages mean. See Omri Ben‐Shahar & \\nLior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. \\n1753 (2017). \\n\\n\\n 53 \\n\\ndiscretion with certain limitations, the covenant of good faith and fair dealing \\n\\nmandates that NAPG exercise that discretion reasonably by charging a \\n\\ncommercially reasonable price.”). \\n\\n C. Dismissal of Massachusetts Claims \\n\\n Another panel of this Court recently rejected the rationale supporting the \\n\\ndistrict court’s dismissal of Richards’s Massachusetts‐based claims for lack of \\n\\nstanding: \\n\\n in Richards v. Direct Energy Servs., LLC, the district court \\n concluded that a Connecticut plaintiff that alleged that the \\n defendant energy company had attracted customers with \\n misleading promises of low rates lacked standing to sue on \\n behalf of Massachusetts consumers who were injured by the \\n same defendant. 120 F. Supp. 3d at 151. The court reasoned that \\n “[w]ithout an allegation that [the named plaintiff] personally \\n was injured in Massachusetts,” the plaintiff’s claim was \\n essentially that, like the plaintiffs in Massachusetts, he had \\n “suffered in some indefinite way in common with people \\n generally.” Id. at 155 (internal quotation marks and alteration \\n omitted). This reasoning falters upon its premise: the harm the \\n plaintiff alleged was not a general grievance common to people \\n generally; it was a specific grievance based on the defendant’s \\n falsely advertised rates, suffered by specific people (Connecticut \\n and Massachusetts customers of the defendant), under a specific \\n set of circumstances. See id. We fail to see how the fact that the \\n defendant’s wrongful conduct impacted customers in two states \\n rendered the injuries of the Massachusetts consumers somehow \\n more indefinite than the identical injuries of the Connecticut \\n consumers. \\n \\n\\n\\n 54 \\n\\nLangan v. Johnson & Johnson Consumer Cos., Inc., 897 F.3d 88, 96 (2d Cir. 2018). The \\n\\nquestion of “whether a plaintiff can bring a class action under the state laws of \\n\\nmultiple states is a question of predominance under Rule 23(b)(3), not a question \\n\\nof standing under Article III.” Id. I would remand this case to the district court to \\n\\ndetermine, under Rule 23, whether a class should be certified and whether it \\n\\nshould include Massachusetts consumers. \\n\\n In sum, I would vacate the district court’s grant of summary judgment with \\n\\nrespect to the unfairness and contract claims and remand for consideration of class \\n\\ncertification in the first instance. \\n\\n \\n\\n\\n\\n\\n 55\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364329/\", \"author_raw\": \"POOLER, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"POOLER"},"judge2":{"kind":"string","value":"PARKER"},"judge3":{"kind":"string","value":"LIVINGSTON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587076/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":1,"string":"1"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gary W. RICHARDS, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. DIRECT ENERGY SERVICES, LLC, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n17‐1003‐cv \nRichards v. Direct Energy Servs., LLC \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n \n August Term 2017 \n \n (Argued: April 11, 2018 Decided: February 4, 2019) \n \n No. 17‐1003‐cv \n \n –––––––––––––––––––––––––––––––––––– \n \n GARY W. RICHARDS, \n on behalf of himself and all others similarly situated, \n \n Plaintiff‐Appellant, \n \n ‐v.‐ \n \n DIRECT ENERGY SERVICES, LLC, \n \n Defendant‐Appellee. \n \n –––––––––––––––––––––––––––––––––––– \n \nBefore: POOLER, PARKER, and LIVINGSTON, Circuit Judges. \n \n Plaintiff‐Appellant Gary Richards (“Richards”) entered into a consumer \nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \nEnergy”). Richards stayed on this contract for fifteen months. The contract \ninitially guaranteed Richards a fixed electricity rate that was 10% lower than the \nstate‐approved electricity rate. Consistent with the terms of the contract, \nRichards’s fixed‐rate plan was converted into a variable rate plan after the first \ntwelve months. Direct Energy then continued supplying electricity to Richards \nat a new variable rate for three months, at two cents more per kilowatt hour \n\n 1 \n\n(“kWh”) than the state‐approved rate. The contract stated that this variable rate \nwould be calculated to reflect “business and market conditions.” After \nterminating his contract, Richards sued Direct Energy, alleging breach of contract, \ndeceptive and unfair trade practices, and unjust enrichment. The United States \nDistrict Court for the District of Connecticut (Bolden, J.) dismissed several of \nRichards’s claims, and granted summary judgment to Direct Energy on his \nremaining claims. The judgment of the district court is AFFIRMED. \n \n JUDGE POOLER concurs in part and dissents in part in a separate opinion. \n \nFOR PLAINTIFF‐APPELLANT: ROBERT A. IZARD (Craig A. Raabe, on the \n brief), Izard, Kindall & Raabe LLP, West \n Hartford, CT, for Gary W. Richards. \n \nFOR DEFENDANT‐APPELLANT: MICHAEL D. MATTHEWS (James M. \n Chambers, Hutson B. Smelley, Robert P. \n Debelak III, on the brief), McDowell & \n Hetherington LLP, Houston, TX, for Direct \n Energy Services, LLC. \n \nDEBRA ANN LIVINGSTON, Circuit Judge: \n\n Plaintiff‐Appellant Gary W. Richards (“Richards”) entered into an \n\nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \n\nEnergy”). The contract provided that, for the first twelve months, Direct Energy \n\nwould guarantee Richards a fixed electricity rate that was 10% below the state‐\n\napproved rate. But if Richards did not leave the contract at the end of that year, \n\nDirect Energy would begin charging him a new variable rate. The variable rate, \n\naccording to the contract, would be set on a month to month basis according to \n\n\n\n\n 2 \n\nDirect Energy’s “discretion” and would reflect “business and market conditions.” \n\nJ.A. 157. Richards was free to terminate the contract at any time without paying \n\na penalty. After twelve months on the discounted fixed rate plan, Richards began \n\npaying the variable rate. During this time, the variable rate was two cents more \n\nper kilowatt hour (“kWh”) than the state‐approved rate. Richards switched \n\nelectricity providers after fifteen months with Direct Energy (twelve on the \n\ndiscounted fixed rate, three on the variable rate), complaining that the variable \n\nrate was set too high. He then sued Direct Energy for breach of contract, \n\ndeceptive and unfair trade practices, and unjust enrichment, and also sought to \n\nrepresent a class of all Direct Energy customers who paid the variable rate in \n\nConnecticut and Massachusetts. The district court dismissed several of his \n\nclaims and granted summary judgment to Direct Energy as to the rest. \n\n This is the latest in a line of class actions challenging consumer gas and \n\nelectricity rates in the wake of market deregulation.1 Richards’s principal claim \n\nis that Direct Energy breached its contract with Richards and violated state unfair \n\nand deceptive trade practices law by not pegging its variable rate to Direct \n\n\n 1 See, e.g., Hamlen v. Gateway Energy Servs. Corp., No. 16 Civ 3526, 2017 WL 6398729, \nat *8 (S.D.N.Y. Dec. 8, 2017); Edwards v. N. Am. Power & Gas, LLC, 120 F. Supp. 3d 132, 142 \n(D. Conn. 2015); Yang Chen v. Hiko Energy, LLC, No. 14 CV 1771, 2014 WL 7389011, at *4 \n(S.D.N.Y. Dec. 29, 2014). \n\n\n 3 \n\nEnergy’s procurement costs. We disagree. By the contract’s plain terms, Direct \n\nEnergy promised that the variable rate would be set in its discretion and that it \n\nwould reflect “business and market conditions,” a phrase which encompasses \n\nmore than just procurement costs. Accordingly, the judgment below is \n\nAFFIRMED. \n\n BACKGROUND \n\n I. Factual Background2 \n\n A \n\n This is a contract dispute set in the context of Connecticut’s electricity \n\nmarket. ISO New England, Inc. is responsible for administering a market in \n\nwhich local electricity distribution companies bid on electricity supplied by power \n\ngenerators. In Connecticut, two electric distribution companies, Eversource and \n\nUnited Illuminating, maintain monopoly control over electricity distribution \n\nsystems within set geographic zones and are ultimately responsible for \n\ndistributing electricity to consumers in those zones. Consumers may enter into \n\n\n 2 The facts outlined below primarily relate to the claims dismissed on summary \njudgment and are therefore either undisputed or presented in the light most favorable to \nRichards. See Raspardo v. Carlone, 770 F.3d 97, 111 (2d Cir. 2014). As for Richards’s \nclaims dismissed on the pleadings, we accept all factual allegations as true and draw all \nreasonable inferences in Richards’s favor. See Trs. of Upstate N.Y. Eng’rs Pension Fund v. \nIvy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). \n\n\n 4 \n\nelectricity contracts with either company directly. All these contracts offer \n\nelectricity at “Standard Service Rates,” which Connecticut’s Public Utilities \n\nRegulatory Authority (“PURA”) approves in advance. See Conn. Gen. Stat. § 16‐\n\n19(a). \n\n In 2000, Connecticut deregulated its consumer electricity market. \n\nConsumers may still purchase electricity from either Eversource or United \n\nIlluminating at their PURA‐approved Standard Service Rates (effectively a public \n\noption), but they may instead choose to contract with one of the forty PURA‐\n\nlicensed retail electricity suppliers (the private market), all of which piggyback on \n\nEversource and United Illuminating’s electricity distribution systems. These \n\nsuppliers purchase power that they then sell to consumers at market‐based, \n\nunregulated rates. Many offer variable prices, promotional rates, guarantees that \n\nenergy will come from renewables, and incentives like cash rebates and gift cards. \n\nSome suppliers also include “guaranteed savings” provisions in their contracts, \n\nwhich ensure that consumers will save money compared to the Standard Service \n\nRates. In general, the Standard Service Rates tend to adjust more slowly in \n\nresponse to changes in the wholesale electricity market than market rates. \n\n\n\n\n 5 \n\n Although PURA does not regulate suppliers’ rates, it regulates the suppliers \n\nthemselves. PURA licenses all private electricity suppliers, id. § 16‐245(a)–(b), \n\nand reviews these licenses every five years, Conn. Agency Regs. § 16‐245‐2(f). It \n\nalso polices how suppliers word their consumer contracts. Among other things, \n\nthese contracts must contain: \n\n “all material terms of the agreement”; \n\n “a clear and conspicuous statement explaining the rates that [ea]ch \n customer will be paying, including the circumstances under which the \n rates may change”; \n\n “a clear and conspicuous statement . . . describing any penalty for early \n termination of such contract”; and \n\n “a statement that provides specific directions to the customer as to how \n to compare the price term in the contract to the customer’s existing . . . \n charge on the electric bill and how long those rates are guaranteed.” \n\nConn. Gen. Stat. § 16‐245o(f)(2). Finally, Connecticut’s state government helps \n\nmaintain an electricity‐comparison website that lists available electricity suppliers \n\nand compares electricity suppliers’ rates and other relevant contract terms to each \n\nother and to the default Standard Service Rates.3 \n\n\n\n\n See “Compare Generation Rates,” ENERGIZE CT, https://www.energizect.com/ \n 3\n\ncompare‐energy‐suppliers (last visited July 4, 2018). \n\n\n 6 \n\n B \n\n Direct Energy is a private electricity supplier that offers several different \n\nelectricity plans to consumers in the private market. Some of its plans come with \n\nadd‐ons, like an Internet‐connected Nest thermostat, a home warranty, or a \n\nguarantee that 100% of the energy will come from “green” sources. During the \n\ntime at issue in this case, all of Direct Energy’s plans were “Evergreen plans,” \n\nmeaning that Direct Energy would charge a fixed rate for a set time (between \n\ntwelve and thirty‐six months), and at the end of that period, if the customer took \n\nno action, Direct Energy would charge a variable rate that could change each \n\nmonth. \n\n Direct Energy balanced several factors when setting the variable rate. In \n\ngeneral, Direct Energy targeted a certain profit margin based on its own cost of \n\nenergy while not setting the rate so high that customers would leave. \n\nCompetitors’ prices, market‐share objectives, supply hedging strategies, \n\nlegislative and regulatory requirements, and market risk helped inform these \n\nfactors. Direct Energy’s variable rate was higher than its fixed rate, so when a \n\ncustomer switched to the variable rate, Direct Energy often reduced the customer’s \n\n\n\n\n 7 \n\nvariable rate for the first few months to smooth the transition. At one point, more \n\nthan half of Direct Energy’s Connecticut customers were paying the variable rate. \n\n In March 2012, Gary Richards signed a two‐page electricity contract with \n\nDirect Energy guaranteeing him a fixed electricity rate of 7.45 cents per kWh for \n\none year. This was an Evergreen plan, so after the year expired, Richards’s \n\n“service [would] automatically continue each month without additional notice, \n\nand [Richards] [would] pay a variable rate per kWh, which [could] be higher or \n\nlower each monthly billing cycle.” J.A. 157. The contract further stated: \n\n After the Initial Term and during the Renewal Period, the rate for electricity \n will be variable each month at Direct Energy’s discretion. The rate may be \n higher or lower each month based upon business and market conditions. \n \nId. We refer to this as “the Evergreen clause.” Richards could cancel the \n\ncontract “at any time without an early cancellation fee.” Id. These terms were \n\nall included on the first page of the contract, and PURA had earlier determined \n\nthat this contract was sufficiently clear and fulfilled all the requirements mandated \n\nby Conn. Gen. Stat. § 16‐245o(f)(2). \n\n After using the Connecticut government’s electricity‐comparison website \n\nmentioned above, Richards chose Direct Energy because it promised “the best \n\nfixed rate that [he] could get at the time” and no termination fee. J.A. 121. He \n\n\n\n\n 8 \n\ndid not consider any other factors, nor did he have any expectations about how \n\nthe variable rate would work. But he still paid attention to his electricity rate \n\nduring the fixed‐rate period and compared rates on the Connecticut electricity \n\nwebsite several times. At one point, he tried to switch electricity providers to get \n\na better fixed rate, but the new provider never followed up on his inquiries. \n\n Richards ultimately stayed on the Direct Energy contract through the full \n\ntwelve months, did not opt out at the end, and so was rolled over onto the variable \n\nrate, which he paid for three months starting in April 2013. For those three \n\nmonths, the variable rate stayed constant at 10.64 cents per kwH, or 2.36 cents per \n\nkWh higher than Eversource’s PURA‐approved Standard Service Rate during this \n\ntime.4 There is no evidence in the record that Direct Energy’s variable rate was \n\nhigher than the rates charged by Direct Energy’s market competitors. Direct \n\nEnergy’s procurement costs were also largely constant during this three‐month \n\nperiod. \n\n In August 2013, Richards noticed that his electricity bills had risen \n\ncompared to previous months, so he canceled his contract with Direct Energy and \n\nswitched electricity providers. Over the course of the fixed‐rate period, Richards \n\n\n\n 4 The record does not disclose United Illuminating’s Standard Service Rate. \n\n\n 9 \n\npaid $114 less than he would have under Eversource’s Standard Service Rate. \n\nBut his three months on the variable rate eliminated those savings. In total, for \n\nthe fifteen months he signed with Direct Energy, Richards, a former Vice President \n\nfor AT&T, paid $25 more than he would have under the Standard Service Rate — \n\nor about $1.67 per month extra. \n\n Richards submitted a letter to PURA complaining about Direct Energy in \n\nMarch 2014. Shortly after, Robert Izard, an attorney who has filed lawsuits like \n\nthis one against other electricity suppliers, see, e.g., Edwards v. N. Am. Power & Gas, \n\nLLC, 120 F. Supp. 3d 132 (D. Conn. 2015), contacted Richards and encouraged him \n\nto sue. Richards then retained Izard to represent him in this case. \n\n II. Procedural History \n\n In November 2014, Richards sued Direct Energy in the United States District \n\nCourt for the District of Connecticut (Bolden, J.) alleging breach of contract, unjust \n\nenrichment, and unfair and deceptive trade practices under the Connecticut \n\nUnfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42‐110b(a), and the \n\nMassachusetts Regulation of Business Practices for Consumers’ Protection Act, \n\nMass. Gen. Laws ch. 93A, § 1. He sought to certify a class of similarly situated \n\nDirect Energy customers who lived in Connecticut and Massachusetts. \n\n\n\n\n 10 \n\n Most of his allegations concerned Direct Energy’s variable rate beginning in \n\nthe winter of 2013–2014 — well after Richards left Direct Energy. Starting in that \n\n(unusually cold) winter, the variable rate jumped by about 50% and stayed level \n\nthrough August 2015. Generally, the variable rate was about 75% higher than \n\nDirect Energy’s procurement costs, which fluctuated significantly, but the variable \n\nrate was lower than its procurement costs during the 2013–2014 winter. Direct \n\nEnergy thus kept variable rates steady through 2014 (and into 2015) to recover \n\nfrom its winter losses. Many other electricity companies never recovered from \n\ntheir winter losses and went out of business. \n\n The district court dismissed Richards’s Massachusetts state law and \n\nConnecticut unjust enrichment claims on August 4, 2015. See Richards v. Direct \n\nEnergy Servs., LLC, 120 F. Supp. 3d 148 (D. Conn. 2015). Because Richards is a \n\nConnecticut resident who was injured in Connecticut and not Massachusetts, the \n\ncourt concluded that Richards lacked Article III standing to bring an unfair and \n\ndeceptive trade practices claim under Massachusetts law. Richards also failed to \n\nstate a claim for unjust enrichment because “[a] plaintiff . . . cannot plead a claim \n\nof unjust enrichment if he also pleads the existence of an express contract,” as \n\nRichards had. Id. at 165. \n\n\n\n\n 11 \n\n During discovery, the parties produced dueling expert witness reports. As \n\nrelevant here, Richards’s experts, economists who had been retained to produce \n\nexpert witness reports in prior class actions like this one, opined that Direct \n\nEnergy’s variable rate should be “consistent with” Direct Energy’s procurement \n\ncosts, “plus an appropriate margin to cover the legitimate costs and risks of \n\nsupplying Variable Rate customers.” Confidential App. 44. At the same time, \n\nthe experts made clear that they did not “offer an opinion on” how the Evergreen \n\nclause should be interpreted. Id. at 374; see also id. at 164 (“I’m not the expert on, \n\nyou know, legal meaning of business and market conditions. But as an \n\neconomist, you know, I do have an opinion professionally . . . .”). Their \n\nconclusions were purportedly based on, as one put it, “[their] personal economic \n\nbelief of what is reasonable,” given their knowledge of the electricity market. \n\nId. at 374. \n\n The district court granted summary judgment to Direct Energy on \n\nRichards’s remaining claims on March 31, 2017. See Richards v. Direct Energy \n\nServs., LLC, 246 F. Supp. 3d 538 (D. Conn. 2017). Direct Energy was entitled to \n\nsummary judgment on Richards’s contract claim, the district court concluded, \n\nbecause Richards had not “put forth sufficient evidence to create a material factual \n\n\n\n\n 12 \n\ndispute about Direct Energy’s bad faith,” as required for his claim based on an \n\nalleged breach of the covenant of good faith and fair dealing. Id. at 557. \n\n The district court also granted summary judgment to Direct Energy on \n\nRichards’s unfair and deceptive trade practices claims under Connecticut law. \n\nRichards had argued that the Evergreen clause was deceptive because a reasonable \n\nconsumer would interpret it to mean that Direct Energy would charge consumers \n\nits procurement costs, plus a fixed profit margin. The district court disagreed and \n\nheld that the clause plainly gave Direct Energy “discretion to set a profit margin \n\nof its choosing when determining variable rates.” Id. at 552. Next, Richards \n\ncontended that his contract with Direct Energy failed adequately to explain “the \n\ncircumstances under which the rates [could] change,” which if true, would be a \n\nper se unfair trade practice. Id. at 555 (quoting Conn. Gen. Stat. § 16–245o(f)(2)), \n\nsee also Conn. Gen. Stat. § 16–245o(j). The district court rejected this argument \n\nbecause PURA had approved the contract language at issue. Finally, Richards \n\nargued that Direct Energy set the variable rate so high as to be “unfair” under \n\nConnecticut law. Not so, the district court held, because “pricing decisions \n\nalone” do not constitute unfair trade practices. Id. at 554. \n\n\n\n\n 13 \n\n Finally, the district court dismissed Richards’s motion for class certification \n\nas moot because it had dismissed or granted summary judgment on all of \n\nRichards’s claims. Final judgment was entered on March 31, 2017. \n\n DISCUSSION \n\n On appeal, Richards challenges the district court’s March 31, 2017 grant of \n\nsummary judgment to Direct Energy on his contract and Connecticut unfair and \n\ndeceptive trade practices claims, and its August 4, 2015 dismissal of his unjust \n\nenrichment and Massachusetts unfair trade practices claims. For the reasons that \n\nfollow, we AFFIRM the judgment of the district court. \n\n I \n\n “We review a grant of summary judgment de novo, examining the evidence \n\nin the light most favorable to, and drawing all inferences in favor of, the non‐\n\nmovant.” Blackman v. New York City Transit Auth., 491 F.3d 95, 98 (2d Cir. 2007) \n\n(per curiam) (quoting Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003)). \n\n“Summary judgment is appropriate only if it can be established ‘that there is no \n\ngenuine issue as to any material fact and that the moving party is entitled to \n\njudgment as a matter of law.’” Sheppard, 317 F.3d at 354–55 (quoting Fed. R. Civ. \n\nP. 56(a)). \n\n\n\n\n 14 \n\n A \n\n Richards argues that Direct Energy breached its contract with him because \n\nit violated the implied covenant of good faith and fair dealing. Under \n\nConnecticut law, the implied covenant attaches to every contract and “requir[es] \n\nthat neither party do anything that will injure the right of the other to receive the \n\nbenefits of the agreement.” Renaissance Mgmt. Co. v. Connecticut Hous. Fin. Auth., \n\n915 A.2d 290, 297–98 (Conn. 2007) (quoting De La Concha of Hartford, Inc. v. Aetna \n\nLife Ins. Co., 849 A.2d 382, 388 (Conn. 2004)). The covenant is thus “not implicated \n\nby conduct that does not impair contractual rights.” Capstone Bldg. Corp. v. Am. \n\nMotorists Ins. Co., 67 A.3d 961, 987 (Conn. 2013). \n\n To establish a breach of the implied covenant, the plaintiff must also show \n\nthat the defendants’ allegedly wrongful acts were “taken in bad faith.” De La \n\nConcha, 849 A.2d at 388 (quoting Alexandru v. Strong, 837 A.2d 875, 883 (Conn. App. \n\nCt. 2004)). “Bad faith in general implies both actual or constructive fraud, or a \n\ndesign to mislead or deceive another, or a neglect or refusal to fulfill some duty or \n\nsome contractual obligation, not prompted by an honest mistake as to one’s rights \n\nor duties, but by some interested or sinister motive.” Id. (quoting Habetz v. \n\nCondon, 618 A.2d 501, 504 (Conn. 1992)). Because this is a high bar, “[t]he \n\n\n\n\n 15 \n\ncovenant will be breached only in a narrow range of cases.” Sec. Plans, Inc. v. \n\nCUNA Mut. Ins. Soc., 769 F.3d 807, 817 (2d Cir. 2014); see also Restatement (Second) \n\nof Contracts § 205 cmt. e (Am. Law Inst. 1981) (listing, as paradigmatic examples \n\nof such breaches, “harassing demands for assurances of performance, rejection of \n\nperformance for unstated reasons, willful failure to mitigate damages, and abuse \n\nof a power to determine compliance or to terminate the contract”). \n\n Richards’s contention that Direct Energy breached the implied covenant of \n\ngood faith and fair dealing ultimately rests on his interpretation of the Evergreen \n\nclause. Again, the clause states: \n\n After the Initial Term and during the Renewal Period, the rate for electricity \n will be variable each month at Direct Energy’s discretion. The rate may be \n higher or lower each month based upon business and market conditions. \n \nJ.A. 157. In Richards’s view, “a reasonable consumer would understand [this] \n\ncontract language to mean that [the] variable rate[] would fluctuate with [Direct \n\nEnergy’s] procurement costs.” Pl.‐Appellant Br. 54. And because the variable \n\nrate stayed constant while procurement costs fluctuated from the winter of 2013–\n\n2014 through August 2015, Direct Energy “ignored the language of the contract.” \n\nId. at 55. Richards contends that, at minimum, his two experts attested that a \n\nreasonable consumer would interpret the Evergreen clause this way, which raises \n\n\n\n\n 16 \n\na plausible question of fact as to the clause’s appropriate interpretation. He also \n\nmaintains that Direct Energy acted in bad faith because Direct Energy set its \n\nvariable rates too high, and “lure[d] new customers into enrolling . . . by offering \n\nlow fixed teaser rates for a set period of time.” Id. at 20. For the following \n\nreasons, we disagree. \n\n Direct Energy did not “evade[] [the contract’s] spirit” or frustrate Richards’s \n\n“justified expectations.” Landry v. Spitz, 925 A.2d 334, 345 (Conn. App. Ct. 2007). \n\nThe Evergreen clause states that Direct Energy had “discretion” to set the variable \n\nrate “based upon business and market conditions.” J.A. 157. The record reflects \n\nthat Direct Energy set the variable rate to achieve a target profit margin, match \n\ncompetitors’ prices, and reduce customer losses, among other objectives. As a \n\nmatter of plain meaning, these sorts of considerations constitute “business and \n\nmarket conditions.” See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining \n\n“business” as “[a] commercial enterprise carried on for profit” and “market” as “the \n\nextent of economic demand” (emphasis added)); see also U.C.C. § 2‐723(1) (Am. Law \n\nInst. & Unif. Law Comm’n 2017) (explaining that, in calculating damages in the \n\ncontracts context, “market price . . . shall be determined according to the \n\n[prevailing] price of such goods” (emphasis added)). The Evergreen clause in no \n\n\n\n\n 17 \n\nway states or implies that such considerations are improper, nor does it suggest \n\nthat the variable rate bears a direct relationship to Direct Energy’s procurement \n\ncosts. \n\n Richards’s experts’ testimony adds nothing to his breach of contract claim. \n\nThese experts opined only on what factors the variable rate should reflect, in their \n\nview, while declining to “offer an opinion on” how the Evergreen clause should \n\nbe interpreted. Confidential App. 374; see also id. at 164 (“I’m not the expert on, \n\nyou know, legal meaning of business and market conditions. But as an \n\neconomist, you know, I do have an opinion professionally . . . .”). And the \n\nexperts’ interpretation of the Evergreen clause would be irrelevant even if they had \n\nopined on its legal meaning because “the construction of unambiguous contract \n\nterms is strictly a judicial function.” 31A Am. Jur. 2d Expert and Opinion Evidence \n\n§ 294 (2018) (explaining that, “unless the words or phrases [in a contract] . . . are \n\nterms of art,” expert testimony “regarding the meanings of contractual provisions \n\n\n\n\n 18 \n\n[is] irrelevant and hence inadmissible”).5 Courts across the country have thus \n\nrightly dismissed arguments like Richards’s even at the pleadings phase.6 \n\n To be sure, even though the Evergreen clause gave Direct Energy discretion \n\nin setting the variable rate, Direct Energy was obliged to “exercise that discretion \n\n\n 5 For the same reason, the dissent’s observation that ambiguous contract language \ncreates a jury question regarding the parties’ intent, Dissenting Op. at 12, misses the point. \nIn the context of Richards’s claim, the Evergreen clause is not ambiguous. Richards \nhimself testified that even he did not interpret the contract as he would now have us read \nit. See J.A. 135 (agreeing that Direct Energy had “[p]retty much” complete discretion in \ndeciding how to set its variable rate). While there might be some pricing considerations \nthat would fall outside the “business and market conditions” that Direct Energy was \nexplicitly authorized to consider, nothing in that phrase suggests the specific limitation \nthat Richards now argues for. The dissent’s contention that a “reasonable juror . . . could \nfind that Direct Energy tied its price‐setting discretion to its cost of doing business,” \nDissenting Op. at 12–13, is patently incorrect, so long as jurors are constrained by law, and \nnot permitted to invent absent contract terms out of thin air. \n 6 See Orange v. Starion Energy PA, Inc, No. CV 15‐773, 2016 WL 1043618, at *4 (E.D. \nPa. Mar. 16, 2016), aff’d, 711 F. App’x 681 (3d Cir. 2017); Windley v. Starion Energy, Inc., No. \n14‐CV‐9053, 2016 WL 197503, at *2 (S.D.N.Y. Jan. 8, 2016), appeal withdrawn, No. 16‐320 \n(2d Cir. 2016); Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *4 \n(N.D. Ill. May 22, 2015), rev’d and vacated in part on other grounds, 847 F.3d 875 (7th Cir. \n2017); Urbino v. Ambit Energy Holdings, LLC, No. Civ. 14‐5184, 2015 WL 4510201, at *4–5 \n(D.N.J. July 24, 2015); Faistl v. Energy Plus Holdings, LLC, No. Civ. 12‐2879, 2012 WL \n3835815, at *5–6 (D.N.J. Sept. 4, 2012). \n Moreover, because there is no evidence in the record that Direct Energy \nsupplemented the terms of its written contract with additional representations to \nRichards, this case is different from those where defendants are alleged to have \nmisrepresented to the plaintiffs that the “business and market conditions” clauses would \nguarantee below‐market prices. See Todd v. XOOM Energy Maryland, LLC, No. GJH‐15‐\n0154, 2017 WL 667198, at *8 (D. Md. Feb. 16, 2017); Melville v. Spark Energy, Inc., No. 15‐\n8706, 2016 WL 6775635, at *4 (D.N.J. Nov. 15, 2016); Landau v. Viridian Energy PA LLC, 223 \nF. Supp. 3d 401, 418–19 (E.D. Pa. 2016); Mirkin v. Viridian Energy, Inc., No. 3:15‐CV‐1057, \n2016 WL 3661106, at *6–7 (D. Conn. July 5, 2016). \n\n\n 19 \n\nin good faith.” 23 Williston on Contracts § 63:22 (4th ed. 2018). Richards has \n\ncome forth with no evidence to suggest that it did not. Although Richards \n\ncharges, for instance, that Direct Energy’s variable rate was “too high,” there is no \n\nevidence that it was any higher than its competitors’ rates. See Marcus Dairy, Inc. \n\nv. Rollin Dairy Corp., No. 05‐cv‐589, 2008 WL 4425954, at *9 (D. Conn. Sept. 24, 2008) \n\n(“To determine if a price is commercially reasonable[] it must be compared to the \n\nrange of other prices in the market.”). The factors influencing the variable rate \n\n(minimizing customer losses, reaching a target profit margin) are ordinary \n\nbusiness considerations. See id. at *7 (stating that merchants act in good faith \n\nwhen setting open price terms if they adhere to “reasonable commercial standards \n\nof fair dealing in the trade” (quoting U.C.C. § 2–305 cmt. 3 (Am. Law Inst. & Unif. \n\nLaw Comm’n 2017))). And Richards in fact seems to concede that all Connecticut \n\nprivate electricity suppliers “engag[e] in similar . . . pricing behavior,” which he \n\ninsistently labels “improper” while offering no coherent explanation (much less \n\nevidence) as to why this is so. Reply Br. 17 n.12. \n\n Richards counters that Direct Energy must have abused its discretion \n\nbecause the variable rate was higher than the PURA‐approved Standard Service \n\nRate. In his view, the Standard Service Rates, rather than Direct Energy’s private \n\n\n\n\n 20 \n\ncompetitors’ rates, are the proper comparators because Connecticut’s private \n\nelectricity suppliers are all “corrupt.” Reply 17 n.12. But it is worth pausing to \n\nconsider the implications of Richards’s argument. If we were to hold private \n\nelectricity suppliers liable for departing from the Standard Service Rates, we \n\nwould in effect make those PURA‐approved rates binding on private electricity \n\nsuppliers like Direct Energy. Yet the entire point of electricity deregulation was \n\nto allow the market, rather than PURA, to determine rates. 7 Richards’s near‐\n\nfrivolous contract claim provides no basis on which a court is authorized to \n\noverrule this policy choice. \n\n Richards’s accusation that Direct Energy violated the implied covenant of \n\ngood faith by “luring new customers . . . by offering low fixed teaser rates,” Pl.‐\n\nAppellant Br. 20, is equally unavailing. Richards may find this practice \n\nobjectionable, but he received exactly what he bargained for: after paying a fixed \n\nrate below the PURA‐approved Standard Service Rates for a fixed time, Richards \n\nwould pay a variable rate set at Direct Energy’s discretion. See 23 Williston on \n\nContracts § 63:22 (4th ed. 2018) (“[T]here can be no breach of the implied promise \n\n\n\n 7 Indeed, if Richards wanted to pay less than he would have paid under the \nStandard Service Rate, he could have chosen a contract with a “guaranteed savings” \nclause that promised just that. \n\n\n 21 \n\nor covenant of good faith and fair dealing where the contract expressly permits \n\nthe actions being challenged, and the defendant acts in accordance with the \n\nexpress terms of the contract.”). Richards voluntarily chose this contract after \n\nconsidering more than forty competitor options because he thought it was the best \n\navailable. He cannot allege breach of contract where, as here, Direct Energy \n\ndelivered to him precisely what he purchased. \n\n Richards’s contract claim is thus without merit. But even if this were not \n\nthe case, Richards still could not prevail. His argument is largely predicated on \n\nthe theory that Direct Energy unjustifiably unmoored its variable rate from Direct \n\nEnergy’s procurement costs. But Richards focuses exclusively on Direct Energy’s \n\npricing practices in 2014 and 2015, yet Richards left Direct Energy in 2013. For \n\nthe three months that Richards paid it, the variable rate and Direct Energy’s costs \n\nstayed constant, and the variable rate was only 2.36 cents per kWh higher than \n\nEversource’s PURA‐approved Standard Service Rate. Cf. 14 David M. Stahl & \n\nLisa M. Cipriano, Bus. & Com. Litig. Fed. Cts. § 143:35 (4th ed. 2017) (“[A] filed and \n\napproved rate is unassailable in judicial proceedings brought by customers.”). \n\nRichards would thus not be a proper plaintiff even if his legal theory had any \n\n\n\n\n 22 \n\nmerit, which it does not. We therefore affirm the district court’s grant of \n\nsummary judgment to Direct Energy on Richards’s contract claim. \n\n B \n\n The Connecticut Unfair Trade Practices Act (“CUTPA”) prohibits “unfair \n\nmethods of competition and unfair or deceptive acts or practices in the conduct of \n\nany trade or commerce.” Conn. Gen. Stat. § 42‐110b(a). Under CUTPA, “unfair \n\nmethods of competition,” “unfair . . . acts,” and “deceptive acts” are distinct \n\ncategories of wrongful conduct. See 12 Robert M. Langer, et al., Conn. Prac., Unfair \n\nTrade Practices § 2.3 (2017). Richards argues that Direct Energy’s variable rate \n\npricing was (1) deceptive, (2) a per se violation of CUTPA, and (3) unfair. \n\nRichards’s CUTPA claims are almost entirely duplicative of his contract claim. \n\nThey are also without merit, and we affirm the district court’s grant of summary \n\njudgment as to these claims. \n\n 1 \n\n “An act or practice is deceptive” under CUTPA if the defendant makes a \n\nmaterial representation or omission likely to mislead consumers who “interpret \n\nthe message reasonably under the circumstances.” Southington Sav. Bank v. \n\nRodgers, 668 A.2d 733, 736 (Conn. App. 1995) (quoting Caldor, Inc. v. Heslin, 577 \n\n\n\n\n 23 \n\nA.2d 1009, 1013 (Conn. 1990)). “The deception standard is objective in nature,” \n\nand a representation is deceptive only if it is “‘likely’ to mislead rather than merely \n\n[has] the ‘tendency or capacity’ to do so.” Langer, et al., supra, § 2.3 (quoting \n\nMatter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 127 (1984) (Pertschuk, Comm’r, \n\nconcurring in part and dissenting in part)). A “failure to disclose can be \n\ndeceptive only if, in light of all the circumstances, there is a duty to disclose.” \n\nNormand Josef Enters., Inc. v. Connecticut Nat’l Bank, 646 A.2d 1289, 1307 (Conn. \n\n1994). \n\n Richards’s deception claim is identical to his contract claim. He contends \n\nthat “reasonable consumers” would likely interpret the Evergreen clause to mean \n\nthat the variable rate would reflect “the costs of procuring power . . . plus an \n\nappropriate margin to cover the legitimate costs and risks of supplying variable \n\nrate customers.” Reply Br. 4, 6 (quoting Confidential App. 44). But as explained \n\nabove, the contract unambiguously allowed Direct Energy to set the variable rate \n\nthe way it did. See Murphy v. Provident Mut. Life Ins. Co. of Philadelphia, 923 F.2d \n\n923, 929–30 (2d Cir. 1990) (holding, in a case predicated on deceptive advertising, \n\nthat “[n]o deception can exist where, as here, the parties’” representations are \n\n“clear[]”); see also Hinchliffe v. Am. Motors Corp., 471 A.2d 980, 988 (Conn. Super. \n\n\n\n\n 24 \n\nCt. 1982) (declining “to speculate that the public will place a patently absurd \n\ninterpretation” on a representation). Richards is also wrong, for the same reasons \n\ngiven above, when he claims that his experts’ views about the Evergreen clause \n\nraise a question of fact on this issue. Slapping the phrase “reasonable consumer” \n\ninto his argument does not change our earlier analysis in any way. See Fink v. \n\nTime Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (“[A] court may determine as a \n\nmatter of law that an allegedly deceptive [representation] would not have misled \n\na reasonable consumer.”). \n\n Accepting Richards’s argument to the contrary would mean, in effect, that \n\nif Direct Energy wished to retain the discretion in a contract to set its variable rate \n\nbased on a range of business and market conditions, it was required to disclose \n\nevery factor influencing that variable rate. But CUTPA imposes no such duty. \n\nSee, e.g., Kenney v. Healey Ford‐Lincoln‐Mercury, Inc., 730 A.2d 115, 117 (Conn. App. \n\nCt. 1999) (holding that it is not a deceptive trade practice to fail to make certain \n\ndisclosures unless the defendant has a preexisting duty to do so). Connecticut, \n\nto be sure, requires consumer electricity contracts to explain “the rates that [] \n\ncustomer[s] will be paying, including the circumstances under which the rates \n\nmay change.” Conn. Gen. Stat. § 16‐245o(f)(2). But PURA determined that the \n\n\n\n\n 25 \n\nEvergreen clause met this standard when it renewed Direct Energy’s license. \n\nRequiring Direct Energy to define “business and market conditions” in greater \n\ndetail would override PURA’s certification. Cf. Mead v. Burns, 509 A.2d 11, 19 \n\n(Conn. 1986) (holding that CUTPA claims “that build[] upon the public policy \n\nembodied in specific statutory provisions . . . must be consistent with the \n\nregulatory principles established by the underlying statutes”). \n\n 2 \n\n Richards’s argument that Direct Energy’s variable rate pricing constituted a \n\nper se violation of CUTPA is equally unavailing. As discussed above, Connecticut \n\nrequires that “[e]ach contract for electric generation services [] contain all material \n\nterms of the agreement,” including “a clear and conspicuous statement explaining \n\nthe rates that [each] consumer will be paying” and “the circumstances under \n\nwhich the rates may change.” Conn. Gen. Stat. § 16‐245o(f)(2). An electric \n\ncompany that violates this provision commits a per se unfair or deceptive trade \n\npractice under CUTPA. Id. § 16‐245o(j). \n\n Richards contends that Direct Energy violated § 16‐245o(j) because it \n\n“misrepresented that it set its variable rate based on ‘business and market \n\nconditions’ when it did not.” Pl.‐Appellant Br. 46. But Richards assumes, yet \n\n\n\n\n 26 \n\nagain, that the Evergreen clause misrepresented Direct Energy’s pricing practices. \n\nWe have already rejected that view twice in this opinion. We thus affirm the \n\ndistrict court’s grant of summary judgment on Richards’s per se CUTPA claim. \n\n 3 \n\n Finally, Richards’s claim that Direct Energy’s variable rate pricing \n\nconstituted an unfair trade practice under CUTPA is also without merit. A trade \n\npractice is unfair under CUTPA if it (1) falls within “the penumbra of some \n\ncommon law, statutory, or other established concept of unfairness,” (2) is \n\n“immoral, unethical, oppressive, or unscrupulous,” or (3) “causes substantial \n\ninjury to consumers . . . .” Votto v. Am. Car Rental, Inc., 871 A.2d 981, 984–85 \n\n(Conn. 2005). The “substantial injury to consumers” prong covers conduct that \n\nis “substantial,” is not “outweighed by any countervailing benefits,” and causes \n\n“an injury that consumers themselves could not reasonably have avoided.” A‐G \n\nFoods, Inc. v. Pepperidge Farm, Inc., 579 A.2d 69, 77 (Conn. 1990) (emphasis \n\nremoved) (quoting Letter from Federal Trade Commission to Senators Ford and \n\nDanforth (Dec. 17, 1980)). \n\n Richards’s contentions do not come close to meeting this standard. Run‐\n\nof‐the‐mill statutory violations, torts, and contract breaches do not constitute \n\n\n\n\n 27 \n\nunfair trade practices. See Jacobs v. Healey Ford‐Subaru, Inc., 652 A.2d 496, 506 \n\n(Conn. 1995) (explaining that “the violation of a consumer statute” is not “an \n\nautomatic violation of CUTPA” unless a statute “expressly” makes it so); Ventres \n\nv. Goodspeed Airport, LLC, 881 A.2d 937, 970 (Conn. 2005) (declining to “convert \n\nevery trespass claim involving business property into a CUTPA claim”); \n\nMetromedia Energy, Inc. v. Mansei, Inc., No. CV136041399S, 2014 WL 7495054, at *4 \n\n(Conn. Super. Ct. Nov. 3, 2014) (holding that “an ordinary breach of the contract” \n\nwas not unfair under CUTPA). CUTPA thus prohibits only certain particularly \n\nabusive commercial practices. See, e.g., A‐G Foods, 579 A.2d at 77 n.9 (recognizing \n\nthe core of unfair practices as: “(1) withholding material information; (2) making \n\nunsubstantiated advertising claims; (3) using high‐pressure sales techniques; and \n\n(4) depriving consumers of various post‐purchase remedies” (quoting Am. Fin. \n\nServs. Ass’n v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985)); Votto, 871 A.2d at 985 \n\n(holding that charging credit cards without the cardholder’s authorization is \n\nunfair under CUTPA). \n\n The crux of Richards’s unfairness theory is, once more, his contention that \n\nDirect Energy breached the contract by failing to tie its variable rate to “business \n\nand market conditions,” which he interprets to mean procurement costs. See Pl.‐\n\n\n\n\n 28 \n\nAppellant Br. 28 (“Richards’[s] claim is that [Direct Energy] acted in an ‘unfair’ \n\nmanner by setting variable rates that violate the terms of its contract and do not \n\nfluctuate with ‘business and market conditions.’”). But a “simple contract breach \n\nis not sufficient to establish a violation of CUTPA, particularly where the count \n\nalleging CUTPA simply incorporates by reference the breach of contract claim.” \n\nBoulevard Assocs., 72 F.3d at 1039 (quoting Chaspek Mfg. Corp. v. Tandet, No. CV \n\n9309‐2714, 1995 WL 447948, at *12 (Conn. Super. Ct. June 16, 1995)). So even if \n\nRichards had made out a contract claim — and he has not — this central feature of \n\nhis CUTPA unfairness theory would be meritless. See Ramirez v. Health Net of Ne., \n\nInc., 938 A.2d 576, 591 (Conn. 2008) (holding that a defendant did not violate \n\nCUTPA when it “availed itself of the rights afforded under the plain and \n\nunambiguous terms of [an] agreement”). \n\n Richards argues that his unfairness claim extends further and does not turn \n\non his contract claim alone. Specifically, he objects to Direct Energy’s supposed \n\npractice of (1) “lur[ing]” consumers with “teaser‐rates,” and later (2) “goug[ing] \n\n[them] with variable rates” that (3) “consumers [do] not monitor.” Pl.‐Appellant \n\nBr. 44. In his view, these practices raise a question of fact as to whether Direct \n\n\n\n\n 29 \n\nEnergy’s pricing strategy was unfair. We consider each component of his \n\nargument in turn. \n\n First, offering a teaser rate is not against public policy, unethical, or \n\nsubstantially injurious on its own, especially when, as here, consumers can cancel \n\nthe contract whenever they like without paying any fee. See A‐G Foods, 579 A.2d \n\nat 77 (holding that a trade practice does not cause a substantial injury under \n\nCUTPA if a consumer could have reasonably avoided it). Richards himself is a \n\ncase in point as to why this is so: He chose to sign with Direct Energy because it \n\noffered the best fixed rate available. That saved him more than $100 over the \n\nStandard Service Rate during the first twelve months of his contract with Direct \n\nEnergy — hardly a “substantial injury.” Votto, 871 A.2d at 985. \n\n Second, Richards’s contention that the variable rates were so high that “no \n\nrational consumer” would voluntarily sign a variable rate contract, Reply Br. 5, is \n\nirrelevant for at least two reasons. First, he did not sign a variable rate contract; \n\nhe signed a fixed rate contract that rolled over into a variable rate after a set time. \n\nAs already noted, this at first saved him money, as compared to the Standard \n\nService Rate, and ultimately cost him only about $1.67 per month above the \n\nStandard Service Rate during his time with Direct Energy. And regardless, \n\n\n\n\n 30 \n\ncharging high prices does not on its own give rise to a CUTPA violation. See, e.g., \n\nBridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 566 F. Supp. 2d 81, \n\n105 (D. Conn. 2008) (Droney, J.) (“[T]he plaintiffs have not shown that the Port \n\nAuthority’s imposition of an excessive passenger fee is an unfair trade practice by \n\nthe preponderance of the evidence.”). Even Richards concedes as \n\nmuch — several times. See, e.g., Pl.‐Appellant Br. 43 (“It is true that pricing \n\npractices “alone” may not give rise to a CUTPA unfairness claim.”); id. at 45; Reply \n\nBr. 17. \n\n Richards’s unfair practices claim thus ultimately depends on his assertion \n\nthat charging a variable rate that “consumers [do] not monitor” is a violation of \n\nCUTPA. Pl.‐Appellant Br. 44. But he supplies no legal authority for this \n\nproposition. Presumably, what bothers Richards is that many Direct Energy \n\nconsumers pay the variable rate when their initial fixed‐rate periods expire, even \n\nthough leaving their contracts would likely save them money. See id. at 44 \n\n(asserting that “no reasonable consumer . . . would remain enrolled in a [Direct \n\nEnergy] variable rate plan”). But this is just an example of “status quo bias”: a \n\ngeneral tendency by people “to stick with their current situation.” Richard H. \n\nThaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and \n\n\n\n\n 31 \n\nHappiness 34 (2008). All sorts of companies design their business strategies with \n\nthe expectation that consumers act this way.8 Many magazines and gyms, for \n\nexample, offer initial discounts on subscriptions and membership on the \n\nassumption that they can make up the loss if customers either decide they like the \n\nproduct or, crucially, forget to cancel. 9 And Connecticut law is clear that \n\n\n\n 8 The core of the dissent’s unfairness argument is thus similarly meritless. \n“People are inertial” and “not attentive,” the dissent proclaims, Dissenting Op. at 7, 8, and \ntherefore Direct Energy has violated the law by “exploit[ing] those consumer \nvulnerabilities,” id. at 7 (citing Neil W. Averitt, The Meaning of “Unfair Acts or Practices” in \nSection 5 of the Federal Trade Commission Act, 70 Geo. L.J. 225 (1981)). But the only \n“vulnerability” that Direct Energy has purportedly “exploited” is our basic tendency to \nbe creatures of habit—a far cry from the targeting of traditionally “legally vulnerable” \ngroups like children, the insane, the seriously ill, the bereaved, or the physically \ndependent, see Averitt, 70 Geo. L.J. at 256. In our view, no reasonable jury could find \nthe former tactic unfair under the circumstances presented here. \n Nor can the dissent rely on the unfounded assertion that Direct Energy has \nengaged in “strategies to avoid alerting customers to their rising rates.” Dissenting Op. \nat 9. That charge is baseless. In a footnote, the dissent references a factual dispute \nabout whether Direct Energy mailed notices to its consumers to notify them that their \nfixed rate periods would soon expire. But whether Direct Energy took it upon itself to \nremind customers of the terms of the contracts that they themselves had willingly signed, \nnothing in the record suggests that Direct Energy erected any affirmative barriers to its \ncustomers exiting those contracts at will. We reject the dissent’s attempt to impose \nadditional affirmative duties under the aegis of CUTPA, a maneuver that Connecticut \ncourts have previously rejected. See Normand Josef Enters., 646 A.2d at 1307; Kenney, \n730 A.2d at 117. \n See, e.g., Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About \n 9\n\nHealth, Wealth, and Happiness 35 (2008) (“American Express wrote [Cass] Sunstein a \ncheerful letter telling him that he could receive, for free, three‐month subscriptions to five \nmagazines of his choice. Free subscriptions seem like a bargain, even if the magazines \nrarely get read, so Sunstein happily made his choices. What he didn’t realize was that \nunless he took some action to cancel his subscription, he would continue to receive the \n\n 32 \n\nwidespread business practices that are consistent with “common business norms” \n\ndo not violate CUTPA. Landmark Inv. Grp., LLC v. Calco Const. & Dev. Co., 60 A.3d \n\n983, 992 (Conn. App. 2013).10 It is therefore clear to us that Direct Energy’s pricing \n\nstrategy during the term of its relationship with Richards was not against public \n\npolicy, immoral, or substantially injurious. \n\n At bottom, Richards signed a contract guaranteeing him a below‐market \n\nrate, which he paid for twelve months. For three months after that, he paid \n\napproximately two cents above the PURA‐approved Standard Service Rate. He \n\nthen left the contract without penalty. Richards now asks us to invalidate a \n\nPURA‐approved contract that he chose after considering more than forty private \n\noptions and the PURA‐approved Standard Service Rate. And he does so while \n\n\n\n\nmagazines, paying for them at the normal rate. For about a decade, he has continued to \nsubscribe to magazines that he hardly ever reads.”). \n 10 In response, the dissent quotes a Connecticut Superior Court decision for the \nproposition that “[t]he fact that the defendant’s practice is standard in the industry . . . \ndoes not excuse it as a violation of CUTPA.” Dissenting Op. at 3 (quoting Halloran v. \nSpillane’s Servicenter, Inc., 41 Conn. Supp. 484, 500 (Conn. Super. Ct. 1990)). But this \ncomparison ignores the substantial daylight between a standard practice within a single \nindustry and common business norms across many industries. Halloran involved a \ntowing company’s refusal to release a vehicle owner’s personal possessions before \npayment of all fees connected with the towing service, id. at 488—apparently a common \npractice within the Connecticut towing business at the time, id. at 500. That conduct \nbears no analogy to quotidian pricing practices like Direct Energy’s, which have long \nbeen mainstream across numerous sectors of American commerce. \n\n\n 33 \n\nconceding that Direct Energy’s pricing practices were akin to those of its \n\ncompetitors. See Reply Br. 17 n.12 (characterizing the private electricity market \n\nas a “corrupt industr[y]”). But Connecticut chose to deregulate consumer \n\nelectricity ratemaking, not transfer that authority from a public utility commission \n\nto the after‐the‐fact judgments of courts interpreting CUTPA. See Mead, 509 A.2d \n\nat 19 (holding that CUTPA claims “that build[] upon the public policy embodied \n\nin specific statutory provisions . . . must be consistent with the regulatory \n\nprinciples established by the underlying statutes”); see also Conn. Gen. Stat. § 42‐\n\n110c (prohibiting suits under CUTPA for “actions otherwise permitted under law \n\nas administered by any regulatory board”). We therefore conclude that \n\nRichards’s CUTPA claim is without merit and that the district court’s partial grant \n\nof summary judgment as to this claim should be affirmed. \n\n II \n\n Richards next challenges the district court’s dismissal of his unjust \n\nenrichment and Massachusetts state law claims. We review de novo a district \n\ncourt’s dismissal on the pleadings, “accepting all factual allegations as true and \n\ndrawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. \n\nEng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “To \n\n\n\n\n 34 \n\nsurvive a motion to dismiss, a complaint must contain sufficient factual matter, \n\naccepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft \n\nv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, \n\n570 (2007)). \n\n A \n\n The district court held that Richards failed to state a claim for unjust \n\nenrichment because he signed a contract with Direct Energy. See also Meaney v. \n\nConnecticut Hosp. Ass’n, Inc., 735 A.2d 813, 823 (Conn. 1999) (“[A]n express contract \n\nbetween the parties precludes recognition of an implied‐in‐law contract governing \n\nthe same subject matter.” (quoting 1 E. Farnsworth, Contracts § 2.20 (2d ed. 1998)). \n\nRichards contends that this was error. He agrees with the district court that he \n\nand Direct Energy had an enforceable contract in principle. But he argues in the \n\nalternative that if this contract did not “prevent [Direct Energy’s] predatory \n\nconduct, then the contract [was] illusory[,] and [he] is entitled to recovery under \n\nunjust enrichment.” Reply Br. 31–32. We disagree. \n\n The contract was not illusory. The implied covenant of good faith and fair \n\ndealing obliged Direct Energy to act in good faith when it set the variable rate, and \n\n“good faith is enough to avoid the finding of an illusory promise.” Sicaras v. City \n\n\n\n\n 35 \n\nof Hartford, 692 A.2d 1290, 1297 (Conn. App. Ct. 1997) (quoting 2 A. Corbin, \n\nContracts § 5.28 (Rev. Ed. 1995)). Because Richards and Direct Energy had a \n\nbinding contract, Richards could not plead an unjust enrichment claim. We \n\ntherefore affirm the district court on this issue. \n\n B \n\n Finally, we turn to Richards’s unfair trade practices claims under \n\nMassachusetts law. The district court dismissed these claims for lack of Article \n\nIII standing because Richards was not injured in Massachusetts. This was error. \n\nA plaintiff has Article III standing if he suffered (1) an injury, (2) caused by the \n\ndefendant that (3) would be redressed by a favorable judicial decision. See, e.g., \n\nMahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). There is no question \n\nthat Richards satisfies this standard: he was (1) charged money, (2) by Direct \n\nEnergy, and (3) seeks recompense for this charge. To be sure, whether a statute \n\ngrants a plaintiff a cause of action will often turn on where the tortious conduct \n\noccurred. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010) \n\n(“[T]o ask what conduct [a statute] reaches is to ask what conduct [that statute] \n\nprohibits, which is a merits question.”). But “the absence of a valid . . . cause of \n\naction does not implicate” Article III standing. Lexmark Int’l, Inc. v. Static Control \n\n\n\n\n 36 \n\nComponents, Inc., 572 U.S. 118, 128 n.4 (2014) (quoting Verizon Md., Inc. v. Pub. Serv. \n\nComm’n of Md., 535 U.S. 635, 642–43 (2002)). \n\n We still affirm the district court’s dismissal of Richards’s Massachusetts \n\nclaims, however, because dismissal was proper under Federal Rule of Civil \n\nProcedure 12(b)(6). See Sharkey v. Quarantillo, 541 F.3d 75, 92 (2d Cir. 2008) \n\n(“Although the district court erroneously dismissed the action pursuant to Rule \n\n12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise \n\nproper based on failure to state a claim under Federal Rule of Civil Procedure \n\n12(b)(6).” (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. \n\nCir. 1997)). Here, Richards failed to state a claim because Massachusetts does not \n\ngive plaintiffs a cause of action for unfair or deceptive acts that “occur[] outside” \n\nMassachusetts. Skyhook Wireless, Inc. v. Google Inc., 19 N.E.3d 440, 449 (Mass. \n\nApp. Ct. 2014). Beyond this statutory hurdle, the United States Constitution \n\nwould also bar Massachusetts from regulating, via consumer protection law, the \n\nrates that Direct Energy charged consumers in Connecticut. See, e.g., Baldwin v. \n\nG.A.F. Seelig, Inc., 294 U.S. 511, 528 (1935) (holding that the Dormant Commerce \n\nClause prohibits one state from “establish[ing] . . . a scale of prices for use in other \n\nstates”); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003) \n\n\n\n\n 37 \n\n(holding that a state may not “punish a defendant for conduct that may have been \n\nlawful where it occurred”). \n\n Richards does not challenge any of this on appeal but instead argues that he \n\nhas “‘class standing’ . . . to assert claims on behalf of” Direct Energy’s Massachusetts \n\ncustomers, even if he cannot personally assert any claims under Massachusetts law. \n\nNECA‐IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d \n\nCir. 2012). But the district court’s August 4, 2015 decision was not to the contrary. \n\nThe court held merely that Richards could not sue on his own behalf under \n\nMassachusetts law; it did not opine on whether a plaintiff asserting claims under \n\nConnecticut law could represent a class of consumers asserting claims under \n\nMassachusetts law. The court never had cause to reach the latter issue because it \n\nnever addressed the issue of class certification. Instead, it dismissed Richards’s \n\nmotion for certification as moot in March 2017 because he no longer had any viable \n\nclaims under Connecticut law. Richards does not challenge this dismissal on \n\nappeal. \n\n Accordingly, we have no occasion to address whether Article III would have \n\nprevented Richards from representing a class of plaintiffs with claims under \n\nMassachusetts law. But see Langan v. Johnson & Johnson Consumer Companies, Inc., \n\n\n\n\n 38 \n\nNo. 17‐1605, 2018 WL 3542624, at *6 (2d Cir. July 24, 2018) (holding that “whether \n\na plaintiff can bring a class action under the state laws of multiple states is a \n\nquestion of predominance under Rule 23(b)(3), not a question of standing under \n\nArticle III”). We therefore affirm the district court’s August 4, 2015 partial \n\ndismissal as to the Massachusetts claims. \n\n CONCLUSION \n\n We have considered each of Richards’s remaining arguments and have \n\ndetermined them to be without merit. Accordingly, the judgment of the district \n\ncourt is AFFIRMED. \n\n\n\n\n 39\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gary W. RICHARDS, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. DIRECT ENERGY SERVICES, LLC, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐1003‐cv \\nRichards v. Direct Energy Servs., LLC \\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n \\n August Term 2017 \\n \\n (Argued: April 11, 2018 Decided: February 4, 2019) \\n \\n No. 17‐1003‐cv \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\n GARY W. RICHARDS, \\n on behalf of himself and all others similarly situated, \\n \\n Plaintiff‐Appellant, \\n \\n ‐v.‐ \\n \\n DIRECT ENERGY SERVICES, LLC, \\n \\n Defendant‐Appellee. \\n \\n –––––––––––––––––––––––––––––––––––– \\n \\nBefore: POOLER, PARKER, and LIVINGSTON, Circuit Judges. \\n \\n Plaintiff‐Appellant Gary Richards (“Richards”) entered into a consumer \\nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \\nEnergy”). Richards stayed on this contract for fifteen months. The contract \\ninitially guaranteed Richards a fixed electricity rate that was 10% lower than the \\nstate‐approved electricity rate. Consistent with the terms of the contract, \\nRichards’s fixed‐rate plan was converted into a variable rate plan after the first \\ntwelve months. Direct Energy then continued supplying electricity to Richards \\nat a new variable rate for three months, at two cents more per kilowatt hour \\n\\n 1 \\n\\n(“kWh”) than the state‐approved rate. The contract stated that this variable rate \\nwould be calculated to reflect “business and market conditions.” After \\nterminating his contract, Richards sued Direct Energy, alleging breach of contract, \\ndeceptive and unfair trade practices, and unjust enrichment. The United States \\nDistrict Court for the District of Connecticut (Bolden, J.) dismissed several of \\nRichards’s claims, and granted summary judgment to Direct Energy on his \\nremaining claims. The judgment of the district court is AFFIRMED. \\n \\n JUDGE POOLER concurs in part and dissents in part in a separate opinion. \\n \\nFOR PLAINTIFF‐APPELLANT: ROBERT A. IZARD (Craig A. Raabe, on the \\n brief), Izard, Kindall & Raabe LLP, West \\n Hartford, CT, for Gary W. Richards. \\n \\nFOR DEFENDANT‐APPELLANT: MICHAEL D. MATTHEWS (James M. \\n Chambers, Hutson B. Smelley, Robert P. \\n Debelak III, on the brief), McDowell & \\n Hetherington LLP, Houston, TX, for Direct \\n Energy Services, LLC. \\n \\nDEBRA ANN LIVINGSTON, Circuit Judge: \\n\\n Plaintiff‐Appellant Gary W. Richards (“Richards”) entered into an \\n\\nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \\n\\nEnergy”). The contract provided that, for the first twelve months, Direct Energy \\n\\nwould guarantee Richards a fixed electricity rate that was 10% below the state‐\\n\\napproved rate. But if Richards did not leave the contract at the end of that year, \\n\\nDirect Energy would begin charging him a new variable rate. The variable rate, \\n\\naccording to the contract, would be set on a month to month basis according to \\n\\n\\n\\n\\n 2 \\n\\nDirect Energy’s “discretion” and would reflect “business and market conditions.” \\n\\nJ.A. 157. Richards was free to terminate the contract at any time without paying \\n\\na penalty. After twelve months on the discounted fixed rate plan, Richards began \\n\\npaying the variable rate. During this time, the variable rate was two cents more \\n\\nper kilowatt hour (“kWh”) than the state‐approved rate. Richards switched \\n\\nelectricity providers after fifteen months with Direct Energy (twelve on the \\n\\ndiscounted fixed rate, three on the variable rate), complaining that the variable \\n\\nrate was set too high. He then sued Direct Energy for breach of contract, \\n\\ndeceptive and unfair trade practices, and unjust enrichment, and also sought to \\n\\nrepresent a class of all Direct Energy customers who paid the variable rate in \\n\\nConnecticut and Massachusetts. The district court dismissed several of his \\n\\nclaims and granted summary judgment to Direct Energy as to the rest. \\n\\n This is the latest in a line of class actions challenging consumer gas and \\n\\nelectricity rates in the wake of market deregulation.1 Richards’s principal claim \\n\\nis that Direct Energy breached its contract with Richards and violated state unfair \\n\\nand deceptive trade practices law by not pegging its variable rate to Direct \\n\\n\\n 1 See, e.g., Hamlen v. Gateway Energy Servs. Corp., No. 16 Civ 3526, 2017 WL 6398729, \\nat *8 (S.D.N.Y. Dec. 8, 2017); Edwards v. N. Am. Power & Gas, LLC, 120 F. Supp. 3d 132, 142 \\n(D. Conn. 2015); Yang Chen v. Hiko Energy, LLC, No. 14 CV 1771, 2014 WL 7389011, at *4 \\n(S.D.N.Y. Dec. 29, 2014). \\n\\n\\n 3 \\n\\nEnergy’s procurement costs. We disagree. By the contract’s plain terms, Direct \\n\\nEnergy promised that the variable rate would be set in its discretion and that it \\n\\nwould reflect “business and market conditions,” a phrase which encompasses \\n\\nmore than just procurement costs. Accordingly, the judgment below is \\n\\nAFFIRMED. \\n\\n BACKGROUND \\n\\n I. Factual Background2 \\n\\n A \\n\\n This is a contract dispute set in the context of Connecticut’s electricity \\n\\nmarket. ISO New England, Inc. is responsible for administering a market in \\n\\nwhich local electricity distribution companies bid on electricity supplied by power \\n\\ngenerators. In Connecticut, two electric distribution companies, Eversource and \\n\\nUnited Illuminating, maintain monopoly control over electricity distribution \\n\\nsystems within set geographic zones and are ultimately responsible for \\n\\ndistributing electricity to consumers in those zones. Consumers may enter into \\n\\n\\n 2 The facts outlined below primarily relate to the claims dismissed on summary \\njudgment and are therefore either undisputed or presented in the light most favorable to \\nRichards. See Raspardo v. Carlone, 770 F.3d 97, 111 (2d Cir. 2014). As for Richards’s \\nclaims dismissed on the pleadings, we accept all factual allegations as true and draw all \\nreasonable inferences in Richards’s favor. See Trs. of Upstate N.Y. Eng’rs Pension Fund v. \\nIvy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). \\n\\n\\n 4 \\n\\nelectricity contracts with either company directly. All these contracts offer \\n\\nelectricity at “Standard Service Rates,” which Connecticut’s Public Utilities \\n\\nRegulatory Authority (“PURA”) approves in advance. See Conn. Gen. Stat. § 16‐\\n\\n19(a). \\n\\n In 2000, Connecticut deregulated its consumer electricity market. \\n\\nConsumers may still purchase electricity from either Eversource or United \\n\\nIlluminating at their PURA‐approved Standard Service Rates (effectively a public \\n\\noption), but they may instead choose to contract with one of the forty PURA‐\\n\\nlicensed retail electricity suppliers (the private market), all of which piggyback on \\n\\nEversource and United Illuminating’s electricity distribution systems. These \\n\\nsuppliers purchase power that they then sell to consumers at market‐based, \\n\\nunregulated rates. Many offer variable prices, promotional rates, guarantees that \\n\\nenergy will come from renewables, and incentives like cash rebates and gift cards. \\n\\nSome suppliers also include “guaranteed savings” provisions in their contracts, \\n\\nwhich ensure that consumers will save money compared to the Standard Service \\n\\nRates. In general, the Standard Service Rates tend to adjust more slowly in \\n\\nresponse to changes in the wholesale electricity market than market rates. \\n\\n\\n\\n\\n 5 \\n\\n Although PURA does not regulate suppliers’ rates, it regulates the suppliers \\n\\nthemselves. PURA licenses all private electricity suppliers, id. § 16‐245(a)–(b), \\n\\nand reviews these licenses every five years, Conn. Agency Regs. § 16‐245‐2(f). It \\n\\nalso polices how suppliers word their consumer contracts. Among other things, \\n\\nthese contracts must contain: \\n\\n “all material terms of the agreement”; \\n\\n “a clear and conspicuous statement explaining the rates that [ea]ch \\n customer will be paying, including the circumstances under which the \\n rates may change”; \\n\\n “a clear and conspicuous statement . . . describing any penalty for early \\n termination of such contract”; and \\n\\n “a statement that provides specific directions to the customer as to how \\n to compare the price term in the contract to the customer’s existing . . . \\n charge on the electric bill and how long those rates are guaranteed.” \\n\\nConn. Gen. Stat. § 16‐245o(f)(2). Finally, Connecticut’s state government helps \\n\\nmaintain an electricity‐comparison website that lists available electricity suppliers \\n\\nand compares electricity suppliers’ rates and other relevant contract terms to each \\n\\nother and to the default Standard Service Rates.3 \\n\\n\\n\\n\\n See “Compare Generation Rates,” ENERGIZE CT, https://www.energizect.com/ \\n 3\\n\\ncompare‐energy‐suppliers (last visited July 4, 2018). \\n\\n\\n 6 \\n\\n B \\n\\n Direct Energy is a private electricity supplier that offers several different \\n\\nelectricity plans to consumers in the private market. Some of its plans come with \\n\\nadd‐ons, like an Internet‐connected Nest thermostat, a home warranty, or a \\n\\nguarantee that 100% of the energy will come from “green” sources. During the \\n\\ntime at issue in this case, all of Direct Energy’s plans were “Evergreen plans,” \\n\\nmeaning that Direct Energy would charge a fixed rate for a set time (between \\n\\ntwelve and thirty‐six months), and at the end of that period, if the customer took \\n\\nno action, Direct Energy would charge a variable rate that could change each \\n\\nmonth. \\n\\n Direct Energy balanced several factors when setting the variable rate. In \\n\\ngeneral, Direct Energy targeted a certain profit margin based on its own cost of \\n\\nenergy while not setting the rate so high that customers would leave. \\n\\nCompetitors’ prices, market‐share objectives, supply hedging strategies, \\n\\nlegislative and regulatory requirements, and market risk helped inform these \\n\\nfactors. Direct Energy’s variable rate was higher than its fixed rate, so when a \\n\\ncustomer switched to the variable rate, Direct Energy often reduced the customer’s \\n\\n\\n\\n\\n 7 \\n\\nvariable rate for the first few months to smooth the transition. At one point, more \\n\\nthan half of Direct Energy’s Connecticut customers were paying the variable rate. \\n\\n In March 2012, Gary Richards signed a two‐page electricity contract with \\n\\nDirect Energy guaranteeing him a fixed electricity rate of 7.45 cents per kWh for \\n\\none year. This was an Evergreen plan, so after the year expired, Richards’s \\n\\n“service [would] automatically continue each month without additional notice, \\n\\nand [Richards] [would] pay a variable rate per kWh, which [could] be higher or \\n\\nlower each monthly billing cycle.” J.A. 157. The contract further stated: \\n\\n After the Initial Term and during the Renewal Period, the rate for electricity \\n will be variable each month at Direct Energy’s discretion. The rate may be \\n higher or lower each month based upon business and market conditions. \\n \\nId. We refer to this as “the Evergreen clause.” Richards could cancel the \\n\\ncontract “at any time without an early cancellation fee.” Id. These terms were \\n\\nall included on the first page of the contract, and PURA had earlier determined \\n\\nthat this contract was sufficiently clear and fulfilled all the requirements mandated \\n\\nby Conn. Gen. Stat. § 16‐245o(f)(2). \\n\\n After using the Connecticut government’s electricity‐comparison website \\n\\nmentioned above, Richards chose Direct Energy because it promised “the best \\n\\nfixed rate that [he] could get at the time” and no termination fee. J.A. 121. He \\n\\n\\n\\n\\n 8 \\n\\ndid not consider any other factors, nor did he have any expectations about how \\n\\nthe variable rate would work. But he still paid attention to his electricity rate \\n\\nduring the fixed‐rate period and compared rates on the Connecticut electricity \\n\\nwebsite several times. At one point, he tried to switch electricity providers to get \\n\\na better fixed rate, but the new provider never followed up on his inquiries. \\n\\n Richards ultimately stayed on the Direct Energy contract through the full \\n\\ntwelve months, did not opt out at the end, and so was rolled over onto the variable \\n\\nrate, which he paid for three months starting in April 2013. For those three \\n\\nmonths, the variable rate stayed constant at 10.64 cents per kwH, or 2.36 cents per \\n\\nkWh higher than Eversource’s PURA‐approved Standard Service Rate during this \\n\\ntime.4 There is no evidence in the record that Direct Energy’s variable rate was \\n\\nhigher than the rates charged by Direct Energy’s market competitors. Direct \\n\\nEnergy’s procurement costs were also largely constant during this three‐month \\n\\nperiod. \\n\\n In August 2013, Richards noticed that his electricity bills had risen \\n\\ncompared to previous months, so he canceled his contract with Direct Energy and \\n\\nswitched electricity providers. Over the course of the fixed‐rate period, Richards \\n\\n\\n\\n 4 The record does not disclose United Illuminating’s Standard Service Rate. \\n\\n\\n 9 \\n\\npaid $114 less than he would have under Eversource’s Standard Service Rate. \\n\\nBut his three months on the variable rate eliminated those savings. In total, for \\n\\nthe fifteen months he signed with Direct Energy, Richards, a former Vice President \\n\\nfor AT&T, paid $25 more than he would have under the Standard Service Rate — \\n\\nor about $1.67 per month extra. \\n\\n Richards submitted a letter to PURA complaining about Direct Energy in \\n\\nMarch 2014. Shortly after, Robert Izard, an attorney who has filed lawsuits like \\n\\nthis one against other electricity suppliers, see, e.g., Edwards v. N. Am. Power & Gas, \\n\\nLLC, 120 F. Supp. 3d 132 (D. Conn. 2015), contacted Richards and encouraged him \\n\\nto sue. Richards then retained Izard to represent him in this case. \\n\\n II. Procedural History \\n\\n In November 2014, Richards sued Direct Energy in the United States District \\n\\nCourt for the District of Connecticut (Bolden, J.) alleging breach of contract, unjust \\n\\nenrichment, and unfair and deceptive trade practices under the Connecticut \\n\\nUnfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42‐110b(a), and the \\n\\nMassachusetts Regulation of Business Practices for Consumers’ Protection Act, \\n\\nMass. Gen. Laws ch. 93A, § 1. He sought to certify a class of similarly situated \\n\\nDirect Energy customers who lived in Connecticut and Massachusetts. \\n\\n\\n\\n\\n 10 \\n\\n Most of his allegations concerned Direct Energy’s variable rate beginning in \\n\\nthe winter of 2013–2014 — well after Richards left Direct Energy. Starting in that \\n\\n(unusually cold) winter, the variable rate jumped by about 50% and stayed level \\n\\nthrough August 2015. Generally, the variable rate was about 75% higher than \\n\\nDirect Energy’s procurement costs, which fluctuated significantly, but the variable \\n\\nrate was lower than its procurement costs during the 2013–2014 winter. Direct \\n\\nEnergy thus kept variable rates steady through 2014 (and into 2015) to recover \\n\\nfrom its winter losses. Many other electricity companies never recovered from \\n\\ntheir winter losses and went out of business. \\n\\n The district court dismissed Richards’s Massachusetts state law and \\n\\nConnecticut unjust enrichment claims on August 4, 2015. See Richards v. Direct \\n\\nEnergy Servs., LLC, 120 F. Supp. 3d 148 (D. Conn. 2015). Because Richards is a \\n\\nConnecticut resident who was injured in Connecticut and not Massachusetts, the \\n\\ncourt concluded that Richards lacked Article III standing to bring an unfair and \\n\\ndeceptive trade practices claim under Massachusetts law. Richards also failed to \\n\\nstate a claim for unjust enrichment because “[a] plaintiff . . . cannot plead a claim \\n\\nof unjust enrichment if he also pleads the existence of an express contract,” as \\n\\nRichards had. Id. at 165. \\n\\n\\n\\n\\n 11 \\n\\n During discovery, the parties produced dueling expert witness reports. As \\n\\nrelevant here, Richards’s experts, economists who had been retained to produce \\n\\nexpert witness reports in prior class actions like this one, opined that Direct \\n\\nEnergy’s variable rate should be “consistent with” Direct Energy’s procurement \\n\\ncosts, “plus an appropriate margin to cover the legitimate costs and risks of \\n\\nsupplying Variable Rate customers.” Confidential App. 44. At the same time, \\n\\nthe experts made clear that they did not “offer an opinion on” how the Evergreen \\n\\nclause should be interpreted. Id. at 374; see also id. at 164 (“I’m not the expert on, \\n\\nyou know, legal meaning of business and market conditions. But as an \\n\\neconomist, you know, I do have an opinion professionally . . . .”). Their \\n\\nconclusions were purportedly based on, as one put it, “[their] personal economic \\n\\nbelief of what is reasonable,” given their knowledge of the electricity market. \\n\\nId. at 374. \\n\\n The district court granted summary judgment to Direct Energy on \\n\\nRichards’s remaining claims on March 31, 2017. See Richards v. Direct Energy \\n\\nServs., LLC, 246 F. Supp. 3d 538 (D. Conn. 2017). Direct Energy was entitled to \\n\\nsummary judgment on Richards’s contract claim, the district court concluded, \\n\\nbecause Richards had not “put forth sufficient evidence to create a material factual \\n\\n\\n\\n\\n 12 \\n\\ndispute about Direct Energy’s bad faith,” as required for his claim based on an \\n\\nalleged breach of the covenant of good faith and fair dealing. Id. at 557. \\n\\n The district court also granted summary judgment to Direct Energy on \\n\\nRichards’s unfair and deceptive trade practices claims under Connecticut law. \\n\\nRichards had argued that the Evergreen clause was deceptive because a reasonable \\n\\nconsumer would interpret it to mean that Direct Energy would charge consumers \\n\\nits procurement costs, plus a fixed profit margin. The district court disagreed and \\n\\nheld that the clause plainly gave Direct Energy “discretion to set a profit margin \\n\\nof its choosing when determining variable rates.” Id. at 552. Next, Richards \\n\\ncontended that his contract with Direct Energy failed adequately to explain “the \\n\\ncircumstances under which the rates [could] change,” which if true, would be a \\n\\nper se unfair trade practice. Id. at 555 (quoting Conn. Gen. Stat. § 16–245o(f)(2)), \\n\\nsee also Conn. Gen. Stat. § 16–245o(j). The district court rejected this argument \\n\\nbecause PURA had approved the contract language at issue. Finally, Richards \\n\\nargued that Direct Energy set the variable rate so high as to be “unfair” under \\n\\nConnecticut law. Not so, the district court held, because “pricing decisions \\n\\nalone” do not constitute unfair trade practices. Id. at 554. \\n\\n\\n\\n\\n 13 \\n\\n Finally, the district court dismissed Richards’s motion for class certification \\n\\nas moot because it had dismissed or granted summary judgment on all of \\n\\nRichards’s claims. Final judgment was entered on March 31, 2017. \\n\\n DISCUSSION \\n\\n On appeal, Richards challenges the district court’s March 31, 2017 grant of \\n\\nsummary judgment to Direct Energy on his contract and Connecticut unfair and \\n\\ndeceptive trade practices claims, and its August 4, 2015 dismissal of his unjust \\n\\nenrichment and Massachusetts unfair trade practices claims. For the reasons that \\n\\nfollow, we AFFIRM the judgment of the district court. \\n\\n I \\n\\n “We review a grant of summary judgment de novo, examining the evidence \\n\\nin the light most favorable to, and drawing all inferences in favor of, the non‐\\n\\nmovant.” Blackman v. New York City Transit Auth., 491 F.3d 95, 98 (2d Cir. 2007) \\n\\n(per curiam) (quoting Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003)). \\n\\n“Summary judgment is appropriate only if it can be established ‘that there is no \\n\\ngenuine issue as to any material fact and that the moving party is entitled to \\n\\njudgment as a matter of law.’” Sheppard, 317 F.3d at 354–55 (quoting Fed. R. Civ. \\n\\nP. 56(a)). \\n\\n\\n\\n\\n 14 \\n\\n A \\n\\n Richards argues that Direct Energy breached its contract with him because \\n\\nit violated the implied covenant of good faith and fair dealing. Under \\n\\nConnecticut law, the implied covenant attaches to every contract and “requir[es] \\n\\nthat neither party do anything that will injure the right of the other to receive the \\n\\nbenefits of the agreement.” Renaissance Mgmt. Co. v. Connecticut Hous. Fin. Auth., \\n\\n915 A.2d 290, 297–98 (Conn. 2007) (quoting De La Concha of Hartford, Inc. v. Aetna \\n\\nLife Ins. Co., 849 A.2d 382, 388 (Conn. 2004)). The covenant is thus “not implicated \\n\\nby conduct that does not impair contractual rights.” Capstone Bldg. Corp. v. Am. \\n\\nMotorists Ins. Co., 67 A.3d 961, 987 (Conn. 2013). \\n\\n To establish a breach of the implied covenant, the plaintiff must also show \\n\\nthat the defendants’ allegedly wrongful acts were “taken in bad faith.” De La \\n\\nConcha, 849 A.2d at 388 (quoting Alexandru v. Strong, 837 A.2d 875, 883 (Conn. App. \\n\\nCt. 2004)). “Bad faith in general implies both actual or constructive fraud, or a \\n\\ndesign to mislead or deceive another, or a neglect or refusal to fulfill some duty or \\n\\nsome contractual obligation, not prompted by an honest mistake as to one’s rights \\n\\nor duties, but by some interested or sinister motive.” Id. (quoting Habetz v. \\n\\nCondon, 618 A.2d 501, 504 (Conn. 1992)). Because this is a high bar, “[t]he \\n\\n\\n\\n\\n 15 \\n\\ncovenant will be breached only in a narrow range of cases.” Sec. Plans, Inc. v. \\n\\nCUNA Mut. Ins. Soc., 769 F.3d 807, 817 (2d Cir. 2014); see also Restatement (Second) \\n\\nof Contracts § 205 cmt. e (Am. Law Inst. 1981) (listing, as paradigmatic examples \\n\\nof such breaches, “harassing demands for assurances of performance, rejection of \\n\\nperformance for unstated reasons, willful failure to mitigate damages, and abuse \\n\\nof a power to determine compliance or to terminate the contract”). \\n\\n Richards’s contention that Direct Energy breached the implied covenant of \\n\\ngood faith and fair dealing ultimately rests on his interpretation of the Evergreen \\n\\nclause. Again, the clause states: \\n\\n After the Initial Term and during the Renewal Period, the rate for electricity \\n will be variable each month at Direct Energy’s discretion. The rate may be \\n higher or lower each month based upon business and market conditions. \\n \\nJ.A. 157. In Richards’s view, “a reasonable consumer would understand [this] \\n\\ncontract language to mean that [the] variable rate[] would fluctuate with [Direct \\n\\nEnergy’s] procurement costs.” Pl.‐Appellant Br. 54. And because the variable \\n\\nrate stayed constant while procurement costs fluctuated from the winter of 2013–\\n\\n2014 through August 2015, Direct Energy “ignored the language of the contract.” \\n\\nId. at 55. Richards contends that, at minimum, his two experts attested that a \\n\\nreasonable consumer would interpret the Evergreen clause this way, which raises \\n\\n\\n\\n\\n 16 \\n\\na plausible question of fact as to the clause’s appropriate interpretation. He also \\n\\nmaintains that Direct Energy acted in bad faith because Direct Energy set its \\n\\nvariable rates too high, and “lure[d] new customers into enrolling . . . by offering \\n\\nlow fixed teaser rates for a set period of time.” Id. at 20. For the following \\n\\nreasons, we disagree. \\n\\n Direct Energy did not “evade[] [the contract’s] spirit” or frustrate Richards’s \\n\\n“justified expectations.” Landry v. Spitz, 925 A.2d 334, 345 (Conn. App. Ct. 2007). \\n\\nThe Evergreen clause states that Direct Energy had “discretion” to set the variable \\n\\nrate “based upon business and market conditions.” J.A. 157. The record reflects \\n\\nthat Direct Energy set the variable rate to achieve a target profit margin, match \\n\\ncompetitors’ prices, and reduce customer losses, among other objectives. As a \\n\\nmatter of plain meaning, these sorts of considerations constitute “business and \\n\\nmarket conditions.” See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining \\n\\n“business” as “[a] commercial enterprise carried on for profit” and “market” as “the \\n\\nextent of economic demand” (emphasis added)); see also U.C.C. § 2‐723(1) (Am. Law \\n\\nInst. & Unif. Law Comm’n 2017) (explaining that, in calculating damages in the \\n\\ncontracts context, “market price . . . shall be determined according to the \\n\\n[prevailing] price of such goods” (emphasis added)). The Evergreen clause in no \\n\\n\\n\\n\\n 17 \\n\\nway states or implies that such considerations are improper, nor does it suggest \\n\\nthat the variable rate bears a direct relationship to Direct Energy’s procurement \\n\\ncosts. \\n\\n Richards’s experts’ testimony adds nothing to his breach of contract claim. \\n\\nThese experts opined only on what factors the variable rate should reflect, in their \\n\\nview, while declining to “offer an opinion on” how the Evergreen clause should \\n\\nbe interpreted. Confidential App. 374; see also id. at 164 (“I’m not the expert on, \\n\\nyou know, legal meaning of business and market conditions. But as an \\n\\neconomist, you know, I do have an opinion professionally . . . .”). And the \\n\\nexperts’ interpretation of the Evergreen clause would be irrelevant even if they had \\n\\nopined on its legal meaning because “the construction of unambiguous contract \\n\\nterms is strictly a judicial function.” 31A Am. Jur. 2d Expert and Opinion Evidence \\n\\n§ 294 (2018) (explaining that, “unless the words or phrases [in a contract] . . . are \\n\\nterms of art,” expert testimony “regarding the meanings of contractual provisions \\n\\n\\n\\n\\n 18 \\n\\n[is] irrelevant and hence inadmissible”).5 Courts across the country have thus \\n\\nrightly dismissed arguments like Richards’s even at the pleadings phase.6 \\n\\n To be sure, even though the Evergreen clause gave Direct Energy discretion \\n\\nin setting the variable rate, Direct Energy was obliged to “exercise that discretion \\n\\n\\n 5 For the same reason, the dissent’s observation that ambiguous contract language \\ncreates a jury question regarding the parties’ intent, Dissenting Op. at 12, misses the point. \\nIn the context of Richards’s claim, the Evergreen clause is not ambiguous. Richards \\nhimself testified that even he did not interpret the contract as he would now have us read \\nit. See J.A. 135 (agreeing that Direct Energy had “[p]retty much” complete discretion in \\ndeciding how to set its variable rate). While there might be some pricing considerations \\nthat would fall outside the “business and market conditions” that Direct Energy was \\nexplicitly authorized to consider, nothing in that phrase suggests the specific limitation \\nthat Richards now argues for. The dissent’s contention that a “reasonable juror . . . could \\nfind that Direct Energy tied its price‐setting discretion to its cost of doing business,” \\nDissenting Op. at 12–13, is patently incorrect, so long as jurors are constrained by law, and \\nnot permitted to invent absent contract terms out of thin air. \\n 6 See Orange v. Starion Energy PA, Inc, No. CV 15‐773, 2016 WL 1043618, at *4 (E.D. \\nPa. Mar. 16, 2016), aff’d, 711 F. App’x 681 (3d Cir. 2017); Windley v. Starion Energy, Inc., No. \\n14‐CV‐9053, 2016 WL 197503, at *2 (S.D.N.Y. Jan. 8, 2016), appeal withdrawn, No. 16‐320 \\n(2d Cir. 2016); Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *4 \\n(N.D. Ill. May 22, 2015), rev’d and vacated in part on other grounds, 847 F.3d 875 (7th Cir. \\n2017); Urbino v. Ambit Energy Holdings, LLC, No. Civ. 14‐5184, 2015 WL 4510201, at *4–5 \\n(D.N.J. July 24, 2015); Faistl v. Energy Plus Holdings, LLC, No. Civ. 12‐2879, 2012 WL \\n3835815, at *5–6 (D.N.J. Sept. 4, 2012). \\n Moreover, because there is no evidence in the record that Direct Energy \\nsupplemented the terms of its written contract with additional representations to \\nRichards, this case is different from those where defendants are alleged to have \\nmisrepresented to the plaintiffs that the “business and market conditions” clauses would \\nguarantee below‐market prices. See Todd v. XOOM Energy Maryland, LLC, No. GJH‐15‐\\n0154, 2017 WL 667198, at *8 (D. Md. Feb. 16, 2017); Melville v. Spark Energy, Inc., No. 15‐\\n8706, 2016 WL 6775635, at *4 (D.N.J. Nov. 15, 2016); Landau v. Viridian Energy PA LLC, 223 \\nF. Supp. 3d 401, 418–19 (E.D. Pa. 2016); Mirkin v. Viridian Energy, Inc., No. 3:15‐CV‐1057, \\n2016 WL 3661106, at *6–7 (D. Conn. July 5, 2016). \\n\\n\\n 19 \\n\\nin good faith.” 23 Williston on Contracts § 63:22 (4th ed. 2018). Richards has \\n\\ncome forth with no evidence to suggest that it did not. Although Richards \\n\\ncharges, for instance, that Direct Energy’s variable rate was “too high,” there is no \\n\\nevidence that it was any higher than its competitors’ rates. See Marcus Dairy, Inc. \\n\\nv. Rollin Dairy Corp., No. 05‐cv‐589, 2008 WL 4425954, at *9 (D. Conn. Sept. 24, 2008) \\n\\n(“To determine if a price is commercially reasonable[] it must be compared to the \\n\\nrange of other prices in the market.”). The factors influencing the variable rate \\n\\n(minimizing customer losses, reaching a target profit margin) are ordinary \\n\\nbusiness considerations. See id. at *7 (stating that merchants act in good faith \\n\\nwhen setting open price terms if they adhere to “reasonable commercial standards \\n\\nof fair dealing in the trade” (quoting U.C.C. § 2–305 cmt. 3 (Am. Law Inst. & Unif. \\n\\nLaw Comm’n 2017))). And Richards in fact seems to concede that all Connecticut \\n\\nprivate electricity suppliers “engag[e] in similar . . . pricing behavior,” which he \\n\\ninsistently labels “improper” while offering no coherent explanation (much less \\n\\nevidence) as to why this is so. Reply Br. 17 n.12. \\n\\n Richards counters that Direct Energy must have abused its discretion \\n\\nbecause the variable rate was higher than the PURA‐approved Standard Service \\n\\nRate. In his view, the Standard Service Rates, rather than Direct Energy’s private \\n\\n\\n\\n\\n 20 \\n\\ncompetitors’ rates, are the proper comparators because Connecticut’s private \\n\\nelectricity suppliers are all “corrupt.” Reply 17 n.12. But it is worth pausing to \\n\\nconsider the implications of Richards’s argument. If we were to hold private \\n\\nelectricity suppliers liable for departing from the Standard Service Rates, we \\n\\nwould in effect make those PURA‐approved rates binding on private electricity \\n\\nsuppliers like Direct Energy. Yet the entire point of electricity deregulation was \\n\\nto allow the market, rather than PURA, to determine rates. 7 Richards’s near‐\\n\\nfrivolous contract claim provides no basis on which a court is authorized to \\n\\noverrule this policy choice. \\n\\n Richards’s accusation that Direct Energy violated the implied covenant of \\n\\ngood faith by “luring new customers . . . by offering low fixed teaser rates,” Pl.‐\\n\\nAppellant Br. 20, is equally unavailing. Richards may find this practice \\n\\nobjectionable, but he received exactly what he bargained for: after paying a fixed \\n\\nrate below the PURA‐approved Standard Service Rates for a fixed time, Richards \\n\\nwould pay a variable rate set at Direct Energy’s discretion. See 23 Williston on \\n\\nContracts § 63:22 (4th ed. 2018) (“[T]here can be no breach of the implied promise \\n\\n\\n\\n 7 Indeed, if Richards wanted to pay less than he would have paid under the \\nStandard Service Rate, he could have chosen a contract with a “guaranteed savings” \\nclause that promised just that. \\n\\n\\n 21 \\n\\nor covenant of good faith and fair dealing where the contract expressly permits \\n\\nthe actions being challenged, and the defendant acts in accordance with the \\n\\nexpress terms of the contract.”). Richards voluntarily chose this contract after \\n\\nconsidering more than forty competitor options because he thought it was the best \\n\\navailable. He cannot allege breach of contract where, as here, Direct Energy \\n\\ndelivered to him precisely what he purchased. \\n\\n Richards’s contract claim is thus without merit. But even if this were not \\n\\nthe case, Richards still could not prevail. His argument is largely predicated on \\n\\nthe theory that Direct Energy unjustifiably unmoored its variable rate from Direct \\n\\nEnergy’s procurement costs. But Richards focuses exclusively on Direct Energy’s \\n\\npricing practices in 2014 and 2015, yet Richards left Direct Energy in 2013. For \\n\\nthe three months that Richards paid it, the variable rate and Direct Energy’s costs \\n\\nstayed constant, and the variable rate was only 2.36 cents per kWh higher than \\n\\nEversource’s PURA‐approved Standard Service Rate. Cf. 14 David M. Stahl & \\n\\nLisa M. Cipriano, Bus. & Com. Litig. Fed. Cts. § 143:35 (4th ed. 2017) (“[A] filed and \\n\\napproved rate is unassailable in judicial proceedings brought by customers.”). \\n\\nRichards would thus not be a proper plaintiff even if his legal theory had any \\n\\n\\n\\n\\n 22 \\n\\nmerit, which it does not. We therefore affirm the district court’s grant of \\n\\nsummary judgment to Direct Energy on Richards’s contract claim. \\n\\n B \\n\\n The Connecticut Unfair Trade Practices Act (“CUTPA”) prohibits “unfair \\n\\nmethods of competition and unfair or deceptive acts or practices in the conduct of \\n\\nany trade or commerce.” Conn. Gen. Stat. § 42‐110b(a). Under CUTPA, “unfair \\n\\nmethods of competition,” “unfair . . . acts,” and “deceptive acts” are distinct \\n\\ncategories of wrongful conduct. See 12 Robert M. Langer, et al., Conn. Prac., Unfair \\n\\nTrade Practices § 2.3 (2017). Richards argues that Direct Energy’s variable rate \\n\\npricing was (1) deceptive, (2) a per se violation of CUTPA, and (3) unfair. \\n\\nRichards’s CUTPA claims are almost entirely duplicative of his contract claim. \\n\\nThey are also without merit, and we affirm the district court’s grant of summary \\n\\njudgment as to these claims. \\n\\n 1 \\n\\n “An act or practice is deceptive” under CUTPA if the defendant makes a \\n\\nmaterial representation or omission likely to mislead consumers who “interpret \\n\\nthe message reasonably under the circumstances.” Southington Sav. Bank v. \\n\\nRodgers, 668 A.2d 733, 736 (Conn. App. 1995) (quoting Caldor, Inc. v. Heslin, 577 \\n\\n\\n\\n\\n 23 \\n\\nA.2d 1009, 1013 (Conn. 1990)). “The deception standard is objective in nature,” \\n\\nand a representation is deceptive only if it is “‘likely’ to mislead rather than merely \\n\\n[has] the ‘tendency or capacity’ to do so.” Langer, et al., supra, § 2.3 (quoting \\n\\nMatter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 127 (1984) (Pertschuk, Comm’r, \\n\\nconcurring in part and dissenting in part)). A “failure to disclose can be \\n\\ndeceptive only if, in light of all the circumstances, there is a duty to disclose.” \\n\\nNormand Josef Enters., Inc. v. Connecticut Nat’l Bank, 646 A.2d 1289, 1307 (Conn. \\n\\n1994). \\n\\n Richards’s deception claim is identical to his contract claim. He contends \\n\\nthat “reasonable consumers” would likely interpret the Evergreen clause to mean \\n\\nthat the variable rate would reflect “the costs of procuring power . . . plus an \\n\\nappropriate margin to cover the legitimate costs and risks of supplying variable \\n\\nrate customers.” Reply Br. 4, 6 (quoting Confidential App. 44). But as explained \\n\\nabove, the contract unambiguously allowed Direct Energy to set the variable rate \\n\\nthe way it did. See Murphy v. Provident Mut. Life Ins. Co. of Philadelphia, 923 F.2d \\n\\n923, 929–30 (2d Cir. 1990) (holding, in a case predicated on deceptive advertising, \\n\\nthat “[n]o deception can exist where, as here, the parties’” representations are \\n\\n“clear[]”); see also Hinchliffe v. Am. Motors Corp., 471 A.2d 980, 988 (Conn. Super. \\n\\n\\n\\n\\n 24 \\n\\nCt. 1982) (declining “to speculate that the public will place a patently absurd \\n\\ninterpretation” on a representation). Richards is also wrong, for the same reasons \\n\\ngiven above, when he claims that his experts’ views about the Evergreen clause \\n\\nraise a question of fact on this issue. Slapping the phrase “reasonable consumer” \\n\\ninto his argument does not change our earlier analysis in any way. See Fink v. \\n\\nTime Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (“[A] court may determine as a \\n\\nmatter of law that an allegedly deceptive [representation] would not have misled \\n\\na reasonable consumer.”). \\n\\n Accepting Richards’s argument to the contrary would mean, in effect, that \\n\\nif Direct Energy wished to retain the discretion in a contract to set its variable rate \\n\\nbased on a range of business and market conditions, it was required to disclose \\n\\nevery factor influencing that variable rate. But CUTPA imposes no such duty. \\n\\nSee, e.g., Kenney v. Healey Ford‐Lincoln‐Mercury, Inc., 730 A.2d 115, 117 (Conn. App. \\n\\nCt. 1999) (holding that it is not a deceptive trade practice to fail to make certain \\n\\ndisclosures unless the defendant has a preexisting duty to do so). Connecticut, \\n\\nto be sure, requires consumer electricity contracts to explain “the rates that [] \\n\\ncustomer[s] will be paying, including the circumstances under which the rates \\n\\nmay change.” Conn. Gen. Stat. § 16‐245o(f)(2). But PURA determined that the \\n\\n\\n\\n\\n 25 \\n\\nEvergreen clause met this standard when it renewed Direct Energy’s license. \\n\\nRequiring Direct Energy to define “business and market conditions” in greater \\n\\ndetail would override PURA’s certification. Cf. Mead v. Burns, 509 A.2d 11, 19 \\n\\n(Conn. 1986) (holding that CUTPA claims “that build[] upon the public policy \\n\\nembodied in specific statutory provisions . . . must be consistent with the \\n\\nregulatory principles established by the underlying statutes”). \\n\\n 2 \\n\\n Richards’s argument that Direct Energy’s variable rate pricing constituted a \\n\\nper se violation of CUTPA is equally unavailing. As discussed above, Connecticut \\n\\nrequires that “[e]ach contract for electric generation services [] contain all material \\n\\nterms of the agreement,” including “a clear and conspicuous statement explaining \\n\\nthe rates that [each] consumer will be paying” and “the circumstances under \\n\\nwhich the rates may change.” Conn. Gen. Stat. § 16‐245o(f)(2). An electric \\n\\ncompany that violates this provision commits a per se unfair or deceptive trade \\n\\npractice under CUTPA. Id. § 16‐245o(j). \\n\\n Richards contends that Direct Energy violated § 16‐245o(j) because it \\n\\n“misrepresented that it set its variable rate based on ‘business and market \\n\\nconditions’ when it did not.” Pl.‐Appellant Br. 46. But Richards assumes, yet \\n\\n\\n\\n\\n 26 \\n\\nagain, that the Evergreen clause misrepresented Direct Energy’s pricing practices. \\n\\nWe have already rejected that view twice in this opinion. We thus affirm the \\n\\ndistrict court’s grant of summary judgment on Richards’s per se CUTPA claim. \\n\\n 3 \\n\\n Finally, Richards’s claim that Direct Energy’s variable rate pricing \\n\\nconstituted an unfair trade practice under CUTPA is also without merit. A trade \\n\\npractice is unfair under CUTPA if it (1) falls within “the penumbra of some \\n\\ncommon law, statutory, or other established concept of unfairness,” (2) is \\n\\n“immoral, unethical, oppressive, or unscrupulous,” or (3) “causes substantial \\n\\ninjury to consumers . . . .” Votto v. Am. Car Rental, Inc., 871 A.2d 981, 984–85 \\n\\n(Conn. 2005). The “substantial injury to consumers” prong covers conduct that \\n\\nis “substantial,” is not “outweighed by any countervailing benefits,” and causes \\n\\n“an injury that consumers themselves could not reasonably have avoided.” A‐G \\n\\nFoods, Inc. v. Pepperidge Farm, Inc., 579 A.2d 69, 77 (Conn. 1990) (emphasis \\n\\nremoved) (quoting Letter from Federal Trade Commission to Senators Ford and \\n\\nDanforth (Dec. 17, 1980)). \\n\\n Richards’s contentions do not come close to meeting this standard. Run‐\\n\\nof‐the‐mill statutory violations, torts, and contract breaches do not constitute \\n\\n\\n\\n\\n 27 \\n\\nunfair trade practices. See Jacobs v. Healey Ford‐Subaru, Inc., 652 A.2d 496, 506 \\n\\n(Conn. 1995) (explaining that “the violation of a consumer statute” is not “an \\n\\nautomatic violation of CUTPA” unless a statute “expressly” makes it so); Ventres \\n\\nv. Goodspeed Airport, LLC, 881 A.2d 937, 970 (Conn. 2005) (declining to “convert \\n\\nevery trespass claim involving business property into a CUTPA claim”); \\n\\nMetromedia Energy, Inc. v. Mansei, Inc., No. CV136041399S, 2014 WL 7495054, at *4 \\n\\n(Conn. Super. Ct. Nov. 3, 2014) (holding that “an ordinary breach of the contract” \\n\\nwas not unfair under CUTPA). CUTPA thus prohibits only certain particularly \\n\\nabusive commercial practices. See, e.g., A‐G Foods, 579 A.2d at 77 n.9 (recognizing \\n\\nthe core of unfair practices as: “(1) withholding material information; (2) making \\n\\nunsubstantiated advertising claims; (3) using high‐pressure sales techniques; and \\n\\n(4) depriving consumers of various post‐purchase remedies” (quoting Am. Fin. \\n\\nServs. Ass’n v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985)); Votto, 871 A.2d at 985 \\n\\n(holding that charging credit cards without the cardholder’s authorization is \\n\\nunfair under CUTPA). \\n\\n The crux of Richards’s unfairness theory is, once more, his contention that \\n\\nDirect Energy breached the contract by failing to tie its variable rate to “business \\n\\nand market conditions,” which he interprets to mean procurement costs. See Pl.‐\\n\\n\\n\\n\\n 28 \\n\\nAppellant Br. 28 (“Richards’[s] claim is that [Direct Energy] acted in an ‘unfair’ \\n\\nmanner by setting variable rates that violate the terms of its contract and do not \\n\\nfluctuate with ‘business and market conditions.’”). But a “simple contract breach \\n\\nis not sufficient to establish a violation of CUTPA, particularly where the count \\n\\nalleging CUTPA simply incorporates by reference the breach of contract claim.” \\n\\nBoulevard Assocs., 72 F.3d at 1039 (quoting Chaspek Mfg. Corp. v. Tandet, No. CV \\n\\n9309‐2714, 1995 WL 447948, at *12 (Conn. Super. Ct. June 16, 1995)). So even if \\n\\nRichards had made out a contract claim — and he has not — this central feature of \\n\\nhis CUTPA unfairness theory would be meritless. See Ramirez v. Health Net of Ne., \\n\\nInc., 938 A.2d 576, 591 (Conn. 2008) (holding that a defendant did not violate \\n\\nCUTPA when it “availed itself of the rights afforded under the plain and \\n\\nunambiguous terms of [an] agreement”). \\n\\n Richards argues that his unfairness claim extends further and does not turn \\n\\non his contract claim alone. Specifically, he objects to Direct Energy’s supposed \\n\\npractice of (1) “lur[ing]” consumers with “teaser‐rates,” and later (2) “goug[ing] \\n\\n[them] with variable rates” that (3) “consumers [do] not monitor.” Pl.‐Appellant \\n\\nBr. 44. In his view, these practices raise a question of fact as to whether Direct \\n\\n\\n\\n\\n 29 \\n\\nEnergy’s pricing strategy was unfair. We consider each component of his \\n\\nargument in turn. \\n\\n First, offering a teaser rate is not against public policy, unethical, or \\n\\nsubstantially injurious on its own, especially when, as here, consumers can cancel \\n\\nthe contract whenever they like without paying any fee. See A‐G Foods, 579 A.2d \\n\\nat 77 (holding that a trade practice does not cause a substantial injury under \\n\\nCUTPA if a consumer could have reasonably avoided it). Richards himself is a \\n\\ncase in point as to why this is so: He chose to sign with Direct Energy because it \\n\\noffered the best fixed rate available. That saved him more than $100 over the \\n\\nStandard Service Rate during the first twelve months of his contract with Direct \\n\\nEnergy — hardly a “substantial injury.” Votto, 871 A.2d at 985. \\n\\n Second, Richards’s contention that the variable rates were so high that “no \\n\\nrational consumer” would voluntarily sign a variable rate contract, Reply Br. 5, is \\n\\nirrelevant for at least two reasons. First, he did not sign a variable rate contract; \\n\\nhe signed a fixed rate contract that rolled over into a variable rate after a set time. \\n\\nAs already noted, this at first saved him money, as compared to the Standard \\n\\nService Rate, and ultimately cost him only about $1.67 per month above the \\n\\nStandard Service Rate during his time with Direct Energy. And regardless, \\n\\n\\n\\n\\n 30 \\n\\ncharging high prices does not on its own give rise to a CUTPA violation. See, e.g., \\n\\nBridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 566 F. Supp. 2d 81, \\n\\n105 (D. Conn. 2008) (Droney, J.) (“[T]he plaintiffs have not shown that the Port \\n\\nAuthority’s imposition of an excessive passenger fee is an unfair trade practice by \\n\\nthe preponderance of the evidence.”). Even Richards concedes as \\n\\nmuch — several times. See, e.g., Pl.‐Appellant Br. 43 (“It is true that pricing \\n\\npractices “alone” may not give rise to a CUTPA unfairness claim.”); id. at 45; Reply \\n\\nBr. 17. \\n\\n Richards’s unfair practices claim thus ultimately depends on his assertion \\n\\nthat charging a variable rate that “consumers [do] not monitor” is a violation of \\n\\nCUTPA. Pl.‐Appellant Br. 44. But he supplies no legal authority for this \\n\\nproposition. Presumably, what bothers Richards is that many Direct Energy \\n\\nconsumers pay the variable rate when their initial fixed‐rate periods expire, even \\n\\nthough leaving their contracts would likely save them money. See id. at 44 \\n\\n(asserting that “no reasonable consumer . . . would remain enrolled in a [Direct \\n\\nEnergy] variable rate plan”). But this is just an example of “status quo bias”: a \\n\\ngeneral tendency by people “to stick with their current situation.” Richard H. \\n\\nThaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and \\n\\n\\n\\n\\n 31 \\n\\nHappiness 34 (2008). All sorts of companies design their business strategies with \\n\\nthe expectation that consumers act this way.8 Many magazines and gyms, for \\n\\nexample, offer initial discounts on subscriptions and membership on the \\n\\nassumption that they can make up the loss if customers either decide they like the \\n\\nproduct or, crucially, forget to cancel. 9 And Connecticut law is clear that \\n\\n\\n\\n 8 The core of the dissent’s unfairness argument is thus similarly meritless. \\n“People are inertial” and “not attentive,” the dissent proclaims, Dissenting Op. at 7, 8, and \\ntherefore Direct Energy has violated the law by “exploit[ing] those consumer \\nvulnerabilities,” id. at 7 (citing Neil W. Averitt, The Meaning of “Unfair Acts or Practices” in \\nSection 5 of the Federal Trade Commission Act, 70 Geo. L.J. 225 (1981)). But the only \\n“vulnerability” that Direct Energy has purportedly “exploited” is our basic tendency to \\nbe creatures of habit—a far cry from the targeting of traditionally “legally vulnerable” \\ngroups like children, the insane, the seriously ill, the bereaved, or the physically \\ndependent, see Averitt, 70 Geo. L.J. at 256. In our view, no reasonable jury could find \\nthe former tactic unfair under the circumstances presented here. \\n Nor can the dissent rely on the unfounded assertion that Direct Energy has \\nengaged in “strategies to avoid alerting customers to their rising rates.” Dissenting Op. \\nat 9. That charge is baseless. In a footnote, the dissent references a factual dispute \\nabout whether Direct Energy mailed notices to its consumers to notify them that their \\nfixed rate periods would soon expire. But whether Direct Energy took it upon itself to \\nremind customers of the terms of the contracts that they themselves had willingly signed, \\nnothing in the record suggests that Direct Energy erected any affirmative barriers to its \\ncustomers exiting those contracts at will. We reject the dissent’s attempt to impose \\nadditional affirmative duties under the aegis of CUTPA, a maneuver that Connecticut \\ncourts have previously rejected. See Normand Josef Enters., 646 A.2d at 1307; Kenney, \\n730 A.2d at 117. \\n See, e.g., Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About \\n 9\\n\\nHealth, Wealth, and Happiness 35 (2008) (“American Express wrote [Cass] Sunstein a \\ncheerful letter telling him that he could receive, for free, three‐month subscriptions to five \\nmagazines of his choice. Free subscriptions seem like a bargain, even if the magazines \\nrarely get read, so Sunstein happily made his choices. What he didn’t realize was that \\nunless he took some action to cancel his subscription, he would continue to receive the \\n\\n 32 \\n\\nwidespread business practices that are consistent with “common business norms” \\n\\ndo not violate CUTPA. Landmark Inv. Grp., LLC v. Calco Const. & Dev. Co., 60 A.3d \\n\\n983, 992 (Conn. App. 2013).10 It is therefore clear to us that Direct Energy’s pricing \\n\\nstrategy during the term of its relationship with Richards was not against public \\n\\npolicy, immoral, or substantially injurious. \\n\\n At bottom, Richards signed a contract guaranteeing him a below‐market \\n\\nrate, which he paid for twelve months. For three months after that, he paid \\n\\napproximately two cents above the PURA‐approved Standard Service Rate. He \\n\\nthen left the contract without penalty. Richards now asks us to invalidate a \\n\\nPURA‐approved contract that he chose after considering more than forty private \\n\\noptions and the PURA‐approved Standard Service Rate. And he does so while \\n\\n\\n\\n\\nmagazines, paying for them at the normal rate. For about a decade, he has continued to \\nsubscribe to magazines that he hardly ever reads.”). \\n 10 In response, the dissent quotes a Connecticut Superior Court decision for the \\nproposition that “[t]he fact that the defendant’s practice is standard in the industry . . . \\ndoes not excuse it as a violation of CUTPA.” Dissenting Op. at 3 (quoting Halloran v. \\nSpillane’s Servicenter, Inc., 41 Conn. Supp. 484, 500 (Conn. Super. Ct. 1990)). But this \\ncomparison ignores the substantial daylight between a standard practice within a single \\nindustry and common business norms across many industries. Halloran involved a \\ntowing company’s refusal to release a vehicle owner’s personal possessions before \\npayment of all fees connected with the towing service, id. at 488—apparently a common \\npractice within the Connecticut towing business at the time, id. at 500. That conduct \\nbears no analogy to quotidian pricing practices like Direct Energy’s, which have long \\nbeen mainstream across numerous sectors of American commerce. \\n\\n\\n 33 \\n\\nconceding that Direct Energy’s pricing practices were akin to those of its \\n\\ncompetitors. See Reply Br. 17 n.12 (characterizing the private electricity market \\n\\nas a “corrupt industr[y]”). But Connecticut chose to deregulate consumer \\n\\nelectricity ratemaking, not transfer that authority from a public utility commission \\n\\nto the after‐the‐fact judgments of courts interpreting CUTPA. See Mead, 509 A.2d \\n\\nat 19 (holding that CUTPA claims “that build[] upon the public policy embodied \\n\\nin specific statutory provisions . . . must be consistent with the regulatory \\n\\nprinciples established by the underlying statutes”); see also Conn. Gen. Stat. § 42‐\\n\\n110c (prohibiting suits under CUTPA for “actions otherwise permitted under law \\n\\nas administered by any regulatory board”). We therefore conclude that \\n\\nRichards’s CUTPA claim is without merit and that the district court’s partial grant \\n\\nof summary judgment as to this claim should be affirmed. \\n\\n II \\n\\n Richards next challenges the district court’s dismissal of his unjust \\n\\nenrichment and Massachusetts state law claims. We review de novo a district \\n\\ncourt’s dismissal on the pleadings, “accepting all factual allegations as true and \\n\\ndrawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. \\n\\nEng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “To \\n\\n\\n\\n\\n 34 \\n\\nsurvive a motion to dismiss, a complaint must contain sufficient factual matter, \\n\\naccepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft \\n\\nv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, \\n\\n570 (2007)). \\n\\n A \\n\\n The district court held that Richards failed to state a claim for unjust \\n\\nenrichment because he signed a contract with Direct Energy. See also Meaney v. \\n\\nConnecticut Hosp. Ass’n, Inc., 735 A.2d 813, 823 (Conn. 1999) (“[A]n express contract \\n\\nbetween the parties precludes recognition of an implied‐in‐law contract governing \\n\\nthe same subject matter.” (quoting 1 E. Farnsworth, Contracts § 2.20 (2d ed. 1998)). \\n\\nRichards contends that this was error. He agrees with the district court that he \\n\\nand Direct Energy had an enforceable contract in principle. But he argues in the \\n\\nalternative that if this contract did not “prevent [Direct Energy’s] predatory \\n\\nconduct, then the contract [was] illusory[,] and [he] is entitled to recovery under \\n\\nunjust enrichment.” Reply Br. 31–32. We disagree. \\n\\n The contract was not illusory. The implied covenant of good faith and fair \\n\\ndealing obliged Direct Energy to act in good faith when it set the variable rate, and \\n\\n“good faith is enough to avoid the finding of an illusory promise.” Sicaras v. City \\n\\n\\n\\n\\n 35 \\n\\nof Hartford, 692 A.2d 1290, 1297 (Conn. App. Ct. 1997) (quoting 2 A. Corbin, \\n\\nContracts § 5.28 (Rev. Ed. 1995)). Because Richards and Direct Energy had a \\n\\nbinding contract, Richards could not plead an unjust enrichment claim. We \\n\\ntherefore affirm the district court on this issue. \\n\\n B \\n\\n Finally, we turn to Richards’s unfair trade practices claims under \\n\\nMassachusetts law. The district court dismissed these claims for lack of Article \\n\\nIII standing because Richards was not injured in Massachusetts. This was error. \\n\\nA plaintiff has Article III standing if he suffered (1) an injury, (2) caused by the \\n\\ndefendant that (3) would be redressed by a favorable judicial decision. See, e.g., \\n\\nMahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). There is no question \\n\\nthat Richards satisfies this standard: he was (1) charged money, (2) by Direct \\n\\nEnergy, and (3) seeks recompense for this charge. To be sure, whether a statute \\n\\ngrants a plaintiff a cause of action will often turn on where the tortious conduct \\n\\noccurred. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010) \\n\\n(“[T]o ask what conduct [a statute] reaches is to ask what conduct [that statute] \\n\\nprohibits, which is a merits question.”). But “the absence of a valid . . . cause of \\n\\naction does not implicate” Article III standing. Lexmark Int’l, Inc. v. Static Control \\n\\n\\n\\n\\n 36 \\n\\nComponents, Inc., 572 U.S. 118, 128 n.4 (2014) (quoting Verizon Md., Inc. v. Pub. Serv. \\n\\nComm’n of Md., 535 U.S. 635, 642–43 (2002)). \\n\\n We still affirm the district court’s dismissal of Richards’s Massachusetts \\n\\nclaims, however, because dismissal was proper under Federal Rule of Civil \\n\\nProcedure 12(b)(6). See Sharkey v. Quarantillo, 541 F.3d 75, 92 (2d Cir. 2008) \\n\\n(“Although the district court erroneously dismissed the action pursuant to Rule \\n\\n12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise \\n\\nproper based on failure to state a claim under Federal Rule of Civil Procedure \\n\\n12(b)(6).” (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. \\n\\nCir. 1997)). Here, Richards failed to state a claim because Massachusetts does not \\n\\ngive plaintiffs a cause of action for unfair or deceptive acts that “occur[] outside” \\n\\nMassachusetts. Skyhook Wireless, Inc. v. Google Inc., 19 N.E.3d 440, 449 (Mass. \\n\\nApp. Ct. 2014). Beyond this statutory hurdle, the United States Constitution \\n\\nwould also bar Massachusetts from regulating, via consumer protection law, the \\n\\nrates that Direct Energy charged consumers in Connecticut. See, e.g., Baldwin v. \\n\\nG.A.F. Seelig, Inc., 294 U.S. 511, 528 (1935) (holding that the Dormant Commerce \\n\\nClause prohibits one state from “establish[ing] . . . a scale of prices for use in other \\n\\nstates”); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003) \\n\\n\\n\\n\\n 37 \\n\\n(holding that a state may not “punish a defendant for conduct that may have been \\n\\nlawful where it occurred”). \\n\\n Richards does not challenge any of this on appeal but instead argues that he \\n\\nhas “‘class standing’ . . . to assert claims on behalf of” Direct Energy’s Massachusetts \\n\\ncustomers, even if he cannot personally assert any claims under Massachusetts law. \\n\\nNECA‐IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d \\n\\nCir. 2012). But the district court’s August 4, 2015 decision was not to the contrary. \\n\\nThe court held merely that Richards could not sue on his own behalf under \\n\\nMassachusetts law; it did not opine on whether a plaintiff asserting claims under \\n\\nConnecticut law could represent a class of consumers asserting claims under \\n\\nMassachusetts law. The court never had cause to reach the latter issue because it \\n\\nnever addressed the issue of class certification. Instead, it dismissed Richards’s \\n\\nmotion for certification as moot in March 2017 because he no longer had any viable \\n\\nclaims under Connecticut law. Richards does not challenge this dismissal on \\n\\nappeal. \\n\\n Accordingly, we have no occasion to address whether Article III would have \\n\\nprevented Richards from representing a class of plaintiffs with claims under \\n\\nMassachusetts law. But see Langan v. Johnson & Johnson Consumer Companies, Inc., \\n\\n\\n\\n\\n 38 \\n\\nNo. 17‐1605, 2018 WL 3542624, at *6 (2d Cir. July 24, 2018) (holding that “whether \\n\\na plaintiff can bring a class action under the state laws of multiple states is a \\n\\nquestion of predominance under Rule 23(b)(3), not a question of standing under \\n\\nArticle III”). We therefore affirm the district court’s August 4, 2015 partial \\n\\ndismissal as to the Massachusetts claims. \\n\\n CONCLUSION \\n\\n We have considered each of Richards’s remaining arguments and have \\n\\ndetermined them to be without merit. Accordingly, the judgment of the district \\n\\ncourt is AFFIRMED. \\n\\n\\n\\n\\n 39\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":486,"cells":{"id":{"kind":"number","value":4587416,"string":"4,587,416"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Velarde v. GW GJ, Inc."},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"17-330"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"B e f o r e : CABRANES AND CARNEY, Circuit Judges, and CAPRONI, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"SUSAN L. CARNEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-330\\nVelarde v. GW GJ, Inc., et al.\\n\\n\\n\\n United States Court of Appeals\\n FOR THE SECOND CIRCUIT \\n ______________ \\n \\n August Term, 2017 \\n \\n (Argued: March 8, 2018 Decided: February 5, 2019) \\n \\n Docket No. 17‐330 \\n ______________ \\n \\n PATRICK VELARDE, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY \\n SITUATED, \\n \\n Plaintiff‐Appellant, \\n \\n –v.– \\n \\n GW GJ, INC. D/B/A THE SALON PROFESSIONAL ACADEMY OF BUFFALO, \\n MARGARET GRENAUER, AND PAUL GRENAUER, \\n \\n Defendants‐Appellees. \\n ______________ \\n \\nB e f o r e : \\n \\n CABRANES AND CARNEY, Circuit Judges, and CAPRONI, District Judge.* \\n \\n ______________ \\n \\n Plaintiff‐appellant Patrick Velarde sued The Salon Professional Academy of \\nBuffalo and its owners, Margaret Grenauer and Paul Grenauer, (collectively, “the \\nAcademy”) in the United States District Court for the Western District of New York \\n\\n \\n\\n Judge Valerie E. Caproni, of the United States District Court for the Southern District of New \\n*\\n\\nYork, sitting by designation. \\n\\n \\n\\f \\n\\n(Skretny, J.) for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et \\nseq. (“FLSA”), and Articles 6 and 19 of the New York labor law, N.Y. Lab. Law §§ 190, \\n650 et seq. Velarde alleges that, as a part of his vocational training at the Academy for \\nbecoming a licensed beautician, he was required to perform cosmetology services \\nwithout compensation in the Academy’s student salon. He argues that the requirement \\nviolated FLSA and New York labor law. The District Court granted judgment on the \\npleadings to the Academy, reasoning under the test that we established in Glatt v. Fox \\nSearchlight Pictures, Inc., 811 F.3d 528, 536‐537 (2d Cir. 2015), that Velarde was the \\n“primary beneficiary” of his relationship with the Academy and therefore not an \\n“employee” of the Academy for the purposes of both FLSA and New York labor law. \\nOn de novo review, we agree with the District Court’s analysis and AFFIRM its award \\nof judgment to the Academy. \\n \\n AFFIRMED. \\n ______________ \\n \\n ROBERT WISNIEWSKI, ESQ., New York, NY, for Plaintiff‐\\n Appellant. \\n \\n JAMES W. GRABLE, JR. (Terrence M. Connors on the brief), \\n Connors LLP, Buffalo, NY, for Defendants‐Appellants. \\n ______________ \\n\\nSUSAN L. CARNEY, Circuit Judge: \\n\\n In Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015), we addressed \\n\\nthe application of certain federal and state employment laws to activities performed in a \\n\\ncommercial setting by temporary “interns.” We applied a “primary beneficiary” test: if, \\n\\nunder certain enumerated circumstances, the intern is the “primary beneficiary” of the \\n\\nrelationship, then the host entity is not the intern’s employer and has no legal obligation \\n\\nto pay compensation under those laws; if, on the other hand, the host entity is the \\n\\n“primary beneficiary” of the relationship, then the entity is an employer and federal \\n\\nand state employment laws—in particular, the Fair Labor Standards Employment Act, \\n\\n\\n 2 \\n \\n\\f \\n\\n29 U.S.C. §§ 201 et seq. (“FLSA”), and Articles 6 and 19 of the New York Labor Law \\n\\n§§ 190, 650 et seq. (“NYLL”)—impose compensation obligations. \\n\\n In the case at bar, we consider the applicability of this test to individuals enrolled \\n\\nin a for‐profit vocational academy who are preparing to take a state licensure \\n\\nexamination and who must first fulfill state minimum training requirements. These \\n\\nindividuals fulfill those requirements by working under Academy supervision for a \\n\\ndefined number of hours, without pay. We determine that the Glatt test governs in the \\n\\nfor‐profit vocational training context, and we further conclude that here, the plaintiff, \\n\\nformer student of the Academy was the primary beneficiary of the relationship, thus \\n\\nexcusing the latter from potential compensation obligations under FLSA or NYLL \\n\\nrelated to plaintiff’s limited work there as a trainee. \\n\\n\\n BACKGROUND1 \\n\\n On April 18, 2011, desiring to become a cosmetologist in New York state,2 Patrick \\n\\nVelarde enrolled in the Academy, a for‐profit cosmetology training school operated by \\n\\n \\n\\n1 We review de novo a district court’s decision under Federal Rule of Civil Procedure 12(c) to \\ngrant a defendant’s motion for judgment on the pleadings. In doing so, we accept all factual \\nallegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. L‐\\n7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). In addition to the facts alleged \\nin the complaint, we consider the defendants’ answer, any written documents attached to the \\ncomplaint or the answer, any document that is incorporated by reference into the complaint, \\nany document that is “integral” to the complaint, and any matter of which the court may take \\njudicial notice. Id. at 422. We have identified no material conflicts in the parties’ accounts. \\nAlthough the parties do dispute whether, when enrolling, Velarde was aware that he would \\nhave to work in the Salon without pay to graduate, see Am. Compl. ¶ 46, App’x 17, Velarde \\nundisputedly knew that the program included a practical component, and so we consider the \\ndispute immaterial to our resolution of the appeal. \\n\\n2 The New York State Division of Licensing Services advises that “cosmetology” means: \\n 3 \\n \\n\\f \\n\\nthe individual defendants and located in the City of Tonawanda, in Erie County, New \\n\\nYork. On November 16 of that year, he finished the Academy’s program, having \\n\\nsuccessfully completed what the Academy’s diploma describes as a “1000 hour course \\n\\nof study in [c]osmetology [a]pproved by the state of New York.” App’x 96. The \\n\\nAcademy’s course included both classroom instruction and supervised practical \\n\\nexperience in its student salon (the “Salon”), in which members of the public could \\n\\nreceive cosmetology services and the Academy’s students could practice and refine \\n\\ntheir skills. Velarde provided such services, under supervision, as generally described \\n\\nby his enrollment agreement and course catalogue. \\n\\n Having become a licensed cosmetologist in 2012, Velarde sued the Academy for \\n\\nunpaid wages in 2014—three years after completing the program. He alleged that the \\n\\nAcademy violated FLSA and several sections of NYLL by failing to pay him for the \\n\\nwork that he did in the Salon while he was enrolled at the Academy. In his operative \\n\\ncomplaint,3 he charged that, “under the terms of the students’ enrollment agreement,” \\n\\nhe and all students enrolled in the Academy were unlawfully required to work without \\n\\n \\n\\n providing services to the hair, head, face, neck or scalp of a human being, \\n including but not limited to shaving, trimming, and cutting the hair or beard \\n either by hand or mechanical appliances and the application of antiseptics, \\n powders, oils, clays, lotions or applying tonics to the hair, head, or scalp, and \\n in addition includes providing, for a fee or any consideration or exchange, \\n whether direct or indirect, services for the application of dyes, reactive \\n chemicals, or other preparations to alter the color or to straighten, curl, or alter \\n the structure of the hair of a human being. \\n\\nhttps://www.dos.ny.gov/licensing/cosmetology/cosmetology.html (last visited Jan. 9, 2019); see \\nalso N.Y. Gen. Bus. Law § 400(7). \\n\\n Velarde filed his original complaint on August 22, 2014, and filed an amended complaint on \\n3\\n\\nAugust 26, 2014. References to the “complaint” in this opinion are to the amended complaint. \\n 4 \\n \\n\\f \\n\\npay in the Salon as part of their course of instruction. Am. Compl. ¶ 4, App’x 8; \\n\\nEnrollment Agt., App’x 98. After finishing eight weeks in the classroom, Velarde \\n\\nworked at the Salon, logging 34 unpaid hours per week for 22 weeks and practicing \\n\\nunder the supervision of licensed practitioners. During those 22 weeks, he performed \\n\\n“barbering and hair styling, skin and body treatments, [and] manicure and pedicure \\n\\nservices,” for the public. Am. Compl. ¶¶ 4, 19, App’x at 8, 11. He and other Academy \\n\\nstudents were also obligated to perform janitorial and clerical work at the Salon. \\n\\nStudents in the Salon segment of the vocational program were further required, he \\n\\ncomplains, to provide “whatever cosmetological service was demanded by a customer”: \\n\\nthey could not “choose what services they wanted or needed additional training in.” \\n\\nAm. Compl. ¶ 37(c), App’x at 15. Velarde sought relief both on his own behalf and on \\n\\nbehalf of other former and present students. \\n\\n For Salon services, the Academy charges clients “discounted prices,” with prices \\n\\n“vary[ing] according to student [skill] level.” Am. Compl. ¶¶ 25‐26, App’x 12. The \\n\\nSalon’s rates are lower than those of nearby salons employing only cosmetologists who \\n\\nare already licensed. The Academy—which is, as mentioned, a for‐profit enterprise—\\n\\nderives some of its revenues from the fees paid by the Salon’s clients. Velarde would \\n\\nreceive tips for his work, but any gratuities were nominal in amount. The Academy also \\n\\nderives revenue directly from students, of course: over the course of his thirty‐week \\n\\ncourse of study, Velarde paid the Academy $12,823 for “tuition, books, kits, and other \\n\\nfees.” Am. Compl. ¶ 18, App’x 10. \\n\\n To offer commercial cosmetology services in New York, an individual must \\n\\nobtain and maintain a State cosmetology license. N.Y. Comp. Codes R. & Regs. tit. 19, \\n\\n§ 160.2. New York requires license applicants to have completed 1,000 hours of \\n\\n\\n 5 \\n \\n\\f \\n\\ncoursework in defined subject areas, including safety and health, hair styling, and nail \\n\\ncare. Id. § 162.4. Aspiring cosmetologists must also pass the state’s licensure \\n\\nexamination, which has both written and practical components. N.Y. Gen. Bus. Law \\n\\n§§ 406(2)(b), 407(1). \\n\\n In his suit, Velarde sought unpaid hourly minimum wages including tips and \\n\\novertime for his work in the Salon. He contended that, for purposes of FLSA and NYLL, \\n\\nhe and other Academy students were employees of the Academy while they performed \\n\\nservices in the Salon.4 In 2016, after the Academy filed its Answer, the assigned \\n\\nMagistrate Judge (Schroeder, Jr., M.J.) filed a report and recommendation concluding \\n\\nthat the Academy’s motion for judgment on the pleadings should be granted. In a 2017 \\n\\ntext order, the District Court rejected Velarde’s objections, accepted the Magistrate \\n\\nJudge’s report and recommendation, and entered judgment for the Academy. \\n\\n This appeal followed. \\n\\n\\n DISCUSSION \\n\\n We review de novo a district court’s decision awarding judgment on \\n\\nthe pleadings. Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015). \\n\\n The federal Fair Labor Standards Act requires, among other things, that \\n\\nemployers pay “[e]mployees engaged in commerce” an hourly minimum wage. 29 \\n\\nU.S.C. § 206(a). Similarly, the New York Labor Law requires state employers to pay \\n\\n\\n\\n \\n\\n4 Velarde also pursued a claim for quantum meruit against the Academy in the district court \\nproceedings. The District Court dismissed that claim. On appeal, Velarde has withdrawn his \\nchallenge to the dismissal, and we therefore treat the challenge as waived. \\n 6 \\n \\n\\f \\n\\ntheir “employees” a set minimum wage.5 N.Y. Lab. Law § 652. As described above, \\n\\nVelarde’s action calls for us to decide whether students at a for‐profit vocational school \\n\\ncompleting state‐mandated training hours in preparation for (and to qualify for) a state \\n\\nlicensure exam are correctly treated as “employees” of their respective schools with \\n\\nrespect to the “work” that they do as they are training. \\n\\n We have observed elsewhere that FLSA and NYLL define “employee” in “nearly \\n\\nidentical terms.” Glatt, 811 F.3d at 534. Accordingly, “we construe the NYLL definition \\n\\nas the same in substance as the definition in the FLSA.”6 Id. FLSA’s definition of \\n\\n“employee,” however, is far from a model of clarity: it offers the unenlightening \\n\\ntautology that an “employee” is an “individual employed by an employer.” 29 U.S.C. \\n\\n§ 203(e)(1). FLSA advises further that to “employ” means “to suffer or permit to work.” \\n\\nId. § 203(g). \\n\\n On de novo review, we first conclude that the District Court was correct to \\n\\nanalyze whether Velarde was an “employee” of the Academy by using the “primary \\n\\nbeneficiary” test established in Glatt. Applying that test, we then determine that Velarde \\n\\nwas not an employee of the Academy when enrolled there and working in the Salon, \\n\\nbecause he was the primary beneficiary of his relationship with the Academy, including \\n\\nwith respect to his work in the Salon. \\n\\n\\n\\n\\n \\n\\n NYLL sets its minimum hourly wage at an amount higher than FLSA’s floor. See N.Y. Lab. \\n5\\n\\nLaw § 652. \\n\\n The parties do not dispute that our resolution of Velarde’s FLSA claim is dispositive of his \\n6\\n\\nNYLL claim. \\n 7 \\n \\n\\f \\n\\nI. Primary beneficiary test \\n\\n In Glatt, we considered the employment status of unpaid interns who “were \\n\\nenrolled in or had recently completed a formal course of post‐secondary education” and \\n\\nwho were working temporarily in a commercial concern. 811 F.3d at 537. As we \\n\\nobserved there and have observed in the past, the concept of “employment”—pivotal to \\n\\nFLSA’s application—is “a flexible [one] to be determined on a case‐by‐case basis by \\n\\nreview of the totality of the circumstances” while emphasizing the “economic reality” of \\n\\nthe parties’ relationships. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 141–42 \\n\\n(2d Cir. 2008); see also Glatt, 811 F.3d at 536. \\n\\n We looked for guidance to the Supreme Court’s decision in Walling v. Portland \\n\\nTerminal Co., 330 U.S. 148 (1947). There, the Supreme Court instructed that FLSA, \\n\\nenacted in 1938, “covers trainees, beginners, apprentices, or learners if they are employed \\n\\nto work for an employer for compensation.” Id. at 151 (emphasis added). The Court \\n\\ncautioned, however, that “a person whose work serves only his own interest” does not \\n\\nnecessarily become “an employee of another person who gives him aid and \\n\\ninstruction.” Id. at 152. \\n\\n The Portland Terminal decision addressed whether unpaid “trainees” in a \\n\\nrailroad’s program for prospective brakemen were employees for FLSA minimum wage \\n\\npurposes. 330 U.S. at 149–50. The “course of practical training” that constituted the \\n\\nrailroad’s program had the following features: \\n\\n If accepted for the training course, an applicant is [assigned] \\n to a yard crew for instruction. Under this supervision, he first \\n learns the routine activities by observation, and is then \\n gradually permitted to do actual work under close scrutiny. \\n His activities do not displace any of the regular employees, \\n\\n 8 \\n \\n\\f \\n\\n who do most of the work themselves and must stand \\n immediately by to supervise whatever the trainees do. The \\n applicant’s work does not expedite the company business, but \\n may, and sometimes does, actually impede and retard it. \\n\\nId. An applicant who successfully completed the weeklong training course would be \\n\\nadded to the list of potential hires “from which the company can draw when their \\n\\nservices are needed.” Id. at 150. The Court commented that, “[h]ad these trainees taken \\n\\ncourses in railroading in a public or private vocational school, wholly disassociated \\n\\nfrom the railroad, it could not reasonably be suggested that they were employees of the \\n\\nschool.” Id. at 152–53. Reasoning that FLSA “was not intended to penalize railroads for \\n\\nproviding, free of charge, the same kind of instruction at a place and in a manner which \\n\\nwould most greatly benefit the trainees,” id. at 153, the Court concluded that the \\n\\ntrainees were not railroad employees. \\n\\n Distilling the import of Portland Terminal in the context of interns temporarily \\n\\nperforming work in a commercial enterprise, we held in Glatt that “the proper question \\n\\n[with respect to a purported ‘employment’ relationship] is whether the intern or the \\n\\nemployer is the primary beneficiary of the relationship.” Glatt, 811 F.3d at 536. We \\n\\nhighlighted several salient features of the “primary beneficiary” test: under it, we \\n\\nconsider “what the intern receives in exchange for his work”; we “accord[] courts the \\n\\nflexibility to examine the economic reality as it exists between the intern and the \\n\\nemployer”; and we acknowledge the complexities of relationships involving “the \\n\\nexpectation of receiving educational or vocational benefits that are not necessarily \\n\\nexpected with all forms of employment.” Id. \\n\\n Velarde argues that the District Court erred in applying Glatt’s primary \\n\\nbeneficiary test in his situation because he was not an “intern”; in his view, the District \\n\\n 9 \\n \\n\\f \\n\\nCourt should have focused solely on what he identifies as the economic reality of his \\n\\nrelationship with the Academy. Velarde contends that one need ask only whether the \\n\\nputative employer received an “immediate advantage” from a putative employee’s \\n\\nwork to define the “economic reality” of this relationship. From this, he argues that the \\n\\nAcademy must have been his “employer” because it derived revenue by providing \\n\\nVelarde’s services to the public; any training that Velarde received and the skills that he \\n\\ndeveloped by virtue of his supervised work experiences in the Salon are, in Velarde’s \\n\\nview, besides the point. \\n\\n As Velarde points out, it is true that in Portland Terminal the Supreme Court \\n\\ncounted as one factor relevant to its holding that the railroad received no “immediate \\n\\nadvantage” from the trainees’ work. Portland Terminal, 330 U.S. at 153. As we explained \\n\\nin Glatt, however, Portland Terminal does not imply that FLSA renders any organization \\n\\nthat receives some immediate benefit from unpaid labor an “employer” of the \\n\\nindividual from which the benefit is derived. See Glatt, 811 F.3d at 535–36 (rejecting \\n\\n“immediate advantage” test in favor of “primary beneficiary” analysis). We agree with \\n\\nVelarde that the benefits gained by the Academy from his time in the Salon are relevant \\n\\nto determining whether it “employed” Velarde for FLSA purposes, but those benefits \\n\\nare only one factor among several that properly bear on our analysis. \\n\\n In Glatt and in subsequent decisions, we have described the primary beneficiary \\n\\ntest as a “way to distinguish employees from bona fide interns.” Xuedan Wang v. Hearst \\n\\nCorp., 877 F.3d 69, 72 (2d Cir. 2017). We conclude here that the test is equally suitable for \\n\\ndistinguishing between “employees” and “bona fide students” of vocational schools or \\n\\nvocation‐related programs (such as a training salon) where trainees acquire necessary \\n\\nskills by practicing their craft in a real‐world setting. Like interns, vocational students \\n\\n\\n 10 \\n \\n\\f \\n\\nenter a course of study with “the expectation of receiving educational or vocational \\n\\nbenefits that are not necessarily expected with all forms of employment.” Glatt, 811 F.3d \\n\\nat 536. The primary beneficiary test allows courts to measure the extent to which the \\n\\nschool meets these expectations against the economic benefits received by the school in \\n\\nthe form of free labor. As with interns, disentangling the threads of a complex economic \\n\\nfabric and teasing out the respective benefits garnered by students and their commercial \\n\\ntraining programs is key to determining whether, for FLSA purposes, a trainee is \\n\\nserving primarily as an employee of that school or training program—or is primarily a \\n\\nstudent. \\n\\n We therefore conclude that the District Court was correct to apply the primary \\n\\nbeneficiary test in determining whether Velarde was a student or an employee of the \\n\\nAcademy. \\n\\n\\nII. Velarde was the primary beneficiary of his relationship with the Academy \\n\\n As set forth above, the primary beneficiary test seeks to assess the relative \\n\\ndominance in the relationship between host institution and the individual claiming \\n\\nemployee status of (1) the benefits of a relationship to the individual, (2) the benefits \\n\\nderived from that relationship by the putative employer, and (3) the expectations of the \\n\\nparties. In Glatt, we listed several considerations that may, with others, be useful in \\n\\ndetermining which party is the “primary” beneficiary of a relationship considering the \\n\\ntotality of the circumstances.7 Several of the Glatt factors are less telling in the vocational \\n\\n\\n \\n 7 In Glatt, we enumerated the following seven factors as relevant to the determination: \\n\\n 1. The extent to which the intern and the employer clearly \\n understand that there is no expectation of compensation. Any \\n 11 \\n \\n\\f \\n\\nschool context, where students would seem less likely to expect a paid position with the \\n\\nschool after they graduate than an intern at a commercial enterprise for whom a \\n\\nprofessional position might be a goal. In addition, at a vocational school, the program is \\n\\nby definition tied to some form of an academic calendar (see factor 4, in the margin), \\n\\nwith students receiving course credit for their work. \\n\\n Others of the Glatt factors, however, provide insight for determining which party \\n\\nis the primary beneficiary of the vocational school relationship—a determination that is \\n\\nlikely to vary in different school settings and possibly in different state regulatory \\n\\n \\n promise of compensation, express or implied, suggests that the \\n intern is an employee—and vice versa. \\n 2. The extent to which the internship provides training that would \\n be similar to that which would be given in an educational \\n environment, including the clinical and other hands‐on training \\n provided by educational institutions. \\n 3. The extent to which the internship is tied to the intern’s formal \\n education program by integrated coursework or the receipt of \\n academic credit. \\n 4. The extent to which the internship accommodates the intern’s \\n academic commitments by corresponding to the academic \\n calendar. \\n 5. The extent to which the internship’s duration is limited to the \\n period in which the internship provides the intern with beneficial \\n learning. \\n 6. The extent to which the intern’s work complements, rather than \\n displaces, the work of paid employees while providing significant \\n educational benefits to the intern. \\n 7. The extent to which the intern and the employer understand that \\n the internship is conducted without entitlement to a paid job at the \\n conclusion of the internship. \\n\\nGlatt, 811 F.3d at 536–37. We acknowledged that the list was non‐exhaustive. Id. \\n 12 \\n \\n\\f \\n\\nenvironments. For example, a vocational school is more likely to be found to “employ” \\n\\nits students if it does not have a “formal education program” with “integrated \\n\\ncoursework,” and instead exclusively requires students to perform tasks that are the \\n\\nsame as those done by regularly compensated employees. (See Glatt factor 3.) Similarly, \\n\\na vocational school that runs a training program whose duration far exceeds “the period \\n\\nin which the [program] provides the [student] with beneficial learning” may well be the \\n\\nprimary beneficiary of that relationship. (See Glatt factor 5.) See also Marshall v. Baptist \\n\\nHosp., Inc., 668 F.2d 234, 236 (6th Cir. 1981) (students are employees subject to FLSA \\n\\nwhere “the clinical training program was seriously deficient in supervision, and . . . the \\n\\nstudents continued to perform clerical chores long after the educational value of that \\n\\nwork was over”). The state licensing requirements may often serve as strong evidence \\n\\nof the amount of practical training necessary for a student to become a competent \\n\\nprofessional, but will not always be determinative.8 \\n\\n We provide these examples and counter‐examples not to limit future courts’ \\n\\nconsideration of some or all of the Glatt factors in particular circumstances, but to make \\n\\nplain that courts may reasonably give more weight to some considerations over others \\n\\nwhen applying the primary beneficiary test to vocational schools and their students. \\n\\n Here, evaluating the totality of the circumstances presented by the parties’ \\n\\npleadings and keeping in mind that the goal of the primary beneficiary test is to balance \\n\\nflexibly the benefits received by the student and the economic realities of the student‐\\n\\n \\n\\n8 See Meredith Kolodner & Sarah Butrymowicz, A $21,000 Cosmetology School Debt, and a $9‐an‐\\nHour Job, N.Y. Times, Dec. 26, 2018, at \\nhttps://www.nytimes.com/2018/12/26/business/cosmetology‐school‐debt‐iowa.html (last visited \\nJan. 9, 2019) (describing widely varying state requirements for the number of school hours for a \\ncosmetology license and efforts by for‐profit schools to prevent their reduction). \\n 13 \\n \\n\\f \\n\\nentity relationship, Glatt, 811 F.3d at 536, we have little difficulty in concluding that \\n\\nVelarde was the primary beneficiary of his relationship with the Academy and was not \\n\\nan employee of the Academy for FLSA and NYLL purposes. \\n\\n Several observations are key to our reasoning. \\n\\n To begin, Velarde obtained significant benefits from his work in the Academy’s \\n\\nSalon: he was required to complete 1,000 hours of coursework in specific practical areas \\n\\nto qualify for taking the cosmetology license examination. See N.Y. Comp. Codes R. & \\n\\nRegs. tit. 19, § 162.4. We find it meaningful that the Academy required that Velarde \\n\\ncomplete not more than, but exactly the number of hours required by the state of New \\n\\nYork to qualify for licensure (some of it classroom instruction, the bulk of it providing \\n\\nservices in the Salon). Of those hours spent in the Salon, Velarde performed services \\n\\nunder the supervision of the Academy’s instructors. Velarde makes no allegation that \\n\\nthe Academy failed in this supervision to prepare him for either the practical or written \\n\\ncomponent of the licensing exam. Nor does he claim that his hands‐on experience in the \\n\\nSalon was unrelated to his formal classroom instruction. \\n\\n To rebut the inference that we draw, Velarde suggests, rather, that he should \\n\\nhave been allowed to allocate his time differently among the various areas of study that \\n\\nthe school required and that he should have been able to avoid performing clerical and \\n\\njanitorial work that he views as without instructional benefit to him. But “practical skill \\n\\nmay entail practice, and a [student] gains familiarity with an industry by day to day \\n\\nprofessional experience” that may include relatively menial or repetitive tasks. Wang, \\n\\n877 F.3d at 74 (concluding that interns received “beneficial learning” even when \\n\\nperforming “repetitive or similar tasks”); see also Schumann v. Collier Anesthesia, P.A., 803 \\n\\nF.3d 1199, 1213 (11th Cir. 2015) (“[T]he mere fact that an employer obtains a benefit \\n\\n 14 \\n \\n\\f \\n\\nfrom providing a clinical [program] does not mean that the employer is the ‘primary \\n\\nbeneficiary’ of the relationship.”). That a vocational school does not provide the optimal \\n\\nlearning experience for a student does not necessarily transform it into the primary \\n\\nbeneficiary of the relationship. This is especially so where the school (as did the \\n\\nAcademy here) provides a state‐accredited course of vocational study, requires no more \\n\\nthan the number of hours specified by the state, the state’s required numbers of hours \\n\\nare not challenged as unreasonable, see n. 8, supra, and the school adequately prepares \\n\\nstudents for that state’s licensure exam (as it did for Velarde). See Benjamin v. B & H \\n\\nEduc., Inc., 877 F.3d 1139, 1147 (9th Cir. 2017) (students not FLSA employees where \\n\\n“clinical work allowed students to clock the hours they needed to sit for the state \\n\\nlicensing exams”). \\n\\n Furthermore, although Velarde faults the Academy for charging customers fees \\n\\nfor his cosmetological services that exceeded the Academy’s relevant operating costs (as \\n\\nhe calculated them), the Academy has no obligation not to turn a reasonable profit on \\n\\nits operations. The Academy’s enrollment agreement and catalogue advised that \\n\\ncoursework would include both classroom and practical or “salon area” components, \\n\\nand Velarde was aware that he would pay the Academy, a for‐profit entity, for his \\n\\nparticipation in both components, as necessary for him to meet New York’s licensure \\n\\nrequirements.9 Velarde emphasizes that his 748 hours of unpaid work in the Salon, Am. \\n\\n \\n\\n9 Velarde offered conclusory allegations related to his now‐abandoned quantum meruit claim, \\nsee n. 4, supra, that he “had a reasonable expectation of receiving payment at an appropriate \\nwage rate for the hours [he] worked for Defendants,” Am. Compl. ¶ 69, App’x 21. The only \\nallegation that he made in support of the objective reasonableness of any such expectation, \\nhowever, was that the Academy “never told [him that] . . . [he] would be forced to work \\nwithout pay,” Am. Compl. ¶ 46, App’x 17. This allegation, however, misses the point: Velarde \\ndoes not allege that the Academy told him that he would be paid for his time in the Salon. We \\n 15 \\n \\n\\f \\n\\nCompl. ¶ 4, App’x 8, provided an “immediate advantage” to the Academy (in the form \\n\\nof no‐cost labor in a for‐profit setting), but he does not assert that he replaced paid \\n\\nemployees at the Academy. Rather, he argues that his lower‐cost labor allowed the \\n\\nAcademy’s Salon to better compete in the marketplace, strengthening the Academy’s \\n\\nrevenues and not providing commensurate educational benefit to him. \\n\\n It is undoubtedly true that the Academy—a for‐profit institution—derived \\n\\nfinancial value from Velarde’s work in the Salon. That Velarde provided “tangible \\n\\nbenefits” to the Academy in this way (and in addition to his tuition payments) is not \\n\\ndispositive of the question before us, however. The sixth Glatt factor considers “the \\n\\nextent to which the intern’s work complements, rather than displaces, the work of paid \\n\\nemployees.” Glatt, 811 F.3d at 536‐37. A student’s work is “complementary if it requires \\n\\nsome level of oversight or involvement by an employee, who may still bear primary \\n\\nresponsibility.” Wang, 877 F.3d at 75. As Velarde acknowledges in his amended \\n\\ncomplaint, the Academy advertises that its students provide services “under the \\n\\nwatchful eye of [its] industry experienced educators.” Am. Compl. ¶ 25, App’x 12. \\n\\nGiven the need for such supervision, that Velarde was otherwise “useful or productive” \\n\\nto the Academy did not render him its employee. Wang, 877 F.3d at 75 (observing that \\n\\nthe Glatt factors do not require that “the alleged employer derive no immediate \\n\\nadvantage from the activities of the intern”). This is not a case in which a business uses \\n\\nthe façade of a vocational school to deceive students into working unexpectedly long \\n\\nhours without compensation, replacing the labor of its paid employees, or working \\n\\n \\ndetermine objectively whether a purported employee had a reasonable expectation of payment. \\nSee Brown v. N.Y.C. Dep’t of Educ., 755 F.3d 154, 166 (2d Cir. 2014). Velarde has pointed to no \\naffirmative acts on the part of the Academy that would cause an enrollee to expect payment for \\nservices provided in the practical portion of the training program. \\n 16 \\n \\n\\f \\n\\nhours well beyond long‐standing state requirements. Once again evaluating the totality \\n\\nof the circumstances, then, we reiterate our conclusion that Velarde was the primary \\n\\nbeneficiary of his relationship with the Academy and therefore was not an employee of \\n\\nthe Academy for purposes of FLSA and NYLL. \\n\\n Our conclusion is consistent with those of other courts to have addressed this \\n\\nissue. The Seventh Circuit recently concluded in a closely parallel setting that “the fact \\n\\nthat [cosmetology] students pay not just for the classroom time but also for the \\n\\npractical‐training time is fundamentally inconsistent with the notion that during their \\n\\ntime on the [salon floor] the students were employees.” Hollins v. Regency Corp., 867 \\n\\nF.3d 830, 836 (7th Cir. 2017). Here, as in Hollins, Velarde knew that he was paying the \\n\\nAcademy not just for eight weeks of classroom instruction, but also for twenty‐two \\n\\nweeks of guided practical experience in the Academy’s salon, without which he would \\n\\nnot have been able to qualify to perform cosmetology services in New York. See also \\n\\nBenjamin, 877 F.3d at 1147–48 (cosmetology students not employees of for‐profit school \\n\\nthat provided state‐mandated hours of training for cosmetology licensure). \\n\\n Similarly, the Sixth Circuit has held that vocational “[s]tudents engage[d] in \\n\\ncourses of study that have been considered and approved of by the state accrediting \\n\\nagency” were not employees of the eldercare facility in which they worked. Solis v. \\n\\nLaurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 531–32 (6th Cir. 2011). That court noted \\n\\nthat the students received genuine benefits, both tangible and intangible. It \\n\\nacknowledged that the students might be “employees” covered by FLSA if the \\n\\n“supervision was inadequate, the exposure to various aspects of the trade limited, and \\n\\nthe overall value to the students nil,” but determined that none of those descriptors \\n\\napplied. Id. In this case, Velarde does not allege that his exposure at the Salon to \\n\\n\\n 17 \\n \\n\\f \\n\\ncosmetology was limited or that he did not obtain substantial value from his learning \\n\\nexperiences at the Academy. \\n\\n For these reasons, we are persuaded that the District Court correctly granted \\n\\njudgment on the pleadings to the Academy on Velarde’s FLSA and NYLL claims. \\n\\n\\n CONCLUSION \\n\\n The primary beneficiary test articulated in Glatt applies to the relationship \\n\\nbetween students who attend vocational schools and those schools. Patrick Velarde was \\n\\nthe primary beneficiary of his relationship with the Academy, including with respect to \\n\\nhis supervised work in the Salon. Velarde was thus not an “employee” of the Academy \\n\\nunder FLSA and NYLL. The judgment of the District Court is AFFIRMED. \\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364669/\", \"author_raw\": \"SUSAN L. CARNEY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CABRANES"},"judge2":{"kind":"string","value":"CARNEY"},"judge3":{"kind":"string","value":"CAPRONI"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587416/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Velarde v. GW GJ, Inc.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-330\nVelarde v. GW GJ, Inc., et al.\n\n\n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n ______________ \n \n August Term, 2017 \n \n (Argued: March 8, 2018 Decided: February 5, 2019) \n \n Docket No. 17‐330 \n ______________ \n \n PATRICK VELARDE, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY \n SITUATED, \n \n Plaintiff‐Appellant, \n \n –v.– \n \n GW GJ, INC. D/B/A THE SALON PROFESSIONAL ACADEMY OF BUFFALO, \n MARGARET GRENAUER, AND PAUL GRENAUER, \n \n Defendants‐Appellees. \n ______________ \n \nB e f o r e : \n \n CABRANES AND CARNEY, Circuit Judges, and CAPRONI, District Judge.* \n \n ______________ \n \n Plaintiff‐appellant Patrick Velarde sued The Salon Professional Academy of \nBuffalo and its owners, Margaret Grenauer and Paul Grenauer, (collectively, “the \nAcademy”) in the United States District Court for the Western District of New York \n\n \n\n Judge Valerie E. Caproni, of the United States District Court for the Southern District of New \n*\n\nYork, sitting by designation. \n\n \n\f \n\n(Skretny, J.) for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et \nseq. (“FLSA”), and Articles 6 and 19 of the New York labor law, N.Y. Lab. Law §§ 190, \n650 et seq. Velarde alleges that, as a part of his vocational training at the Academy for \nbecoming a licensed beautician, he was required to perform cosmetology services \nwithout compensation in the Academy’s student salon. He argues that the requirement \nviolated FLSA and New York labor law. The District Court granted judgment on the \npleadings to the Academy, reasoning under the test that we established in Glatt v. Fox \nSearchlight Pictures, Inc., 811 F.3d 528, 536‐537 (2d Cir. 2015), that Velarde was the \n“primary beneficiary” of his relationship with the Academy and therefore not an \n“employee” of the Academy for the purposes of both FLSA and New York labor law. \nOn de novo review, we agree with the District Court’s analysis and AFFIRM its award \nof judgment to the Academy. \n \n AFFIRMED. \n ______________ \n \n ROBERT WISNIEWSKI, ESQ., New York, NY, for Plaintiff‐\n Appellant. \n \n JAMES W. GRABLE, JR. (Terrence M. Connors on the brief), \n Connors LLP, Buffalo, NY, for Defendants‐Appellants. \n ______________ \n\nSUSAN L. CARNEY, Circuit Judge: \n\n In Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015), we addressed \n\nthe application of certain federal and state employment laws to activities performed in a \n\ncommercial setting by temporary “interns.” We applied a “primary beneficiary” test: if, \n\nunder certain enumerated circumstances, the intern is the “primary beneficiary” of the \n\nrelationship, then the host entity is not the intern’s employer and has no legal obligation \n\nto pay compensation under those laws; if, on the other hand, the host entity is the \n\n“primary beneficiary” of the relationship, then the entity is an employer and federal \n\nand state employment laws—in particular, the Fair Labor Standards Employment Act, \n\n\n 2 \n \n\f \n\n29 U.S.C. §§ 201 et seq. (“FLSA”), and Articles 6 and 19 of the New York Labor Law \n\n§§ 190, 650 et seq. (“NYLL”)—impose compensation obligations. \n\n In the case at bar, we consider the applicability of this test to individuals enrolled \n\nin a for‐profit vocational academy who are preparing to take a state licensure \n\nexamination and who must first fulfill state minimum training requirements. These \n\nindividuals fulfill those requirements by working under Academy supervision for a \n\ndefined number of hours, without pay. We determine that the Glatt test governs in the \n\nfor‐profit vocational training context, and we further conclude that here, the plaintiff, \n\nformer student of the Academy was the primary beneficiary of the relationship, thus \n\nexcusing the latter from potential compensation obligations under FLSA or NYLL \n\nrelated to plaintiff’s limited work there as a trainee. \n\n\n BACKGROUND1 \n\n On April 18, 2011, desiring to become a cosmetologist in New York state,2 Patrick \n\nVelarde enrolled in the Academy, a for‐profit cosmetology training school operated by \n\n \n\n1 We review de novo a district court’s decision under Federal Rule of Civil Procedure 12(c) to \ngrant a defendant’s motion for judgment on the pleadings. In doing so, we accept all factual \nallegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. L‐\n7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). In addition to the facts alleged \nin the complaint, we consider the defendants’ answer, any written documents attached to the \ncomplaint or the answer, any document that is incorporated by reference into the complaint, \nany document that is “integral” to the complaint, and any matter of which the court may take \njudicial notice. Id. at 422. We have identified no material conflicts in the parties’ accounts. \nAlthough the parties do dispute whether, when enrolling, Velarde was aware that he would \nhave to work in the Salon without pay to graduate, see Am. Compl. ¶ 46, App’x 17, Velarde \nundisputedly knew that the program included a practical component, and so we consider the \ndispute immaterial to our resolution of the appeal. \n\n2 The New York State Division of Licensing Services advises that “cosmetology” means: \n 3 \n \n\f \n\nthe individual defendants and located in the City of Tonawanda, in Erie County, New \n\nYork. On November 16 of that year, he finished the Academy’s program, having \n\nsuccessfully completed what the Academy’s diploma describes as a “1000 hour course \n\nof study in [c]osmetology [a]pproved by the state of New York.” App’x 96. The \n\nAcademy’s course included both classroom instruction and supervised practical \n\nexperience in its student salon (the “Salon”), in which members of the public could \n\nreceive cosmetology services and the Academy’s students could practice and refine \n\ntheir skills. Velarde provided such services, under supervision, as generally described \n\nby his enrollment agreement and course catalogue. \n\n Having become a licensed cosmetologist in 2012, Velarde sued the Academy for \n\nunpaid wages in 2014—three years after completing the program. He alleged that the \n\nAcademy violated FLSA and several sections of NYLL by failing to pay him for the \n\nwork that he did in the Salon while he was enrolled at the Academy. In his operative \n\ncomplaint,3 he charged that, “under the terms of the students’ enrollment agreement,” \n\nhe and all students enrolled in the Academy were unlawfully required to work without \n\n \n\n providing services to the hair, head, face, neck or scalp of a human being, \n including but not limited to shaving, trimming, and cutting the hair or beard \n either by hand or mechanical appliances and the application of antiseptics, \n powders, oils, clays, lotions or applying tonics to the hair, head, or scalp, and \n in addition includes providing, for a fee or any consideration or exchange, \n whether direct or indirect, services for the application of dyes, reactive \n chemicals, or other preparations to alter the color or to straighten, curl, or alter \n the structure of the hair of a human being. \n\nhttps://www.dos.ny.gov/licensing/cosmetology/cosmetology.html (last visited Jan. 9, 2019); see \nalso N.Y. Gen. Bus. Law § 400(7). \n\n Velarde filed his original complaint on August 22, 2014, and filed an amended complaint on \n3\n\nAugust 26, 2014. References to the “complaint” in this opinion are to the amended complaint. \n 4 \n \n\f \n\npay in the Salon as part of their course of instruction. Am. Compl. ¶ 4, App’x 8; \n\nEnrollment Agt., App’x 98. After finishing eight weeks in the classroom, Velarde \n\nworked at the Salon, logging 34 unpaid hours per week for 22 weeks and practicing \n\nunder the supervision of licensed practitioners. During those 22 weeks, he performed \n\n“barbering and hair styling, skin and body treatments, [and] manicure and pedicure \n\nservices,” for the public. Am. Compl. ¶¶ 4, 19, App’x at 8, 11. He and other Academy \n\nstudents were also obligated to perform janitorial and clerical work at the Salon. \n\nStudents in the Salon segment of the vocational program were further required, he \n\ncomplains, to provide “whatever cosmetological service was demanded by a customer”: \n\nthey could not “choose what services they wanted or needed additional training in.” \n\nAm. Compl. ¶ 37(c), App’x at 15. Velarde sought relief both on his own behalf and on \n\nbehalf of other former and present students. \n\n For Salon services, the Academy charges clients “discounted prices,” with prices \n\n“vary[ing] according to student [skill] level.” Am. Compl. ¶¶ 25‐26, App’x 12. The \n\nSalon’s rates are lower than those of nearby salons employing only cosmetologists who \n\nare already licensed. The Academy—which is, as mentioned, a for‐profit enterprise—\n\nderives some of its revenues from the fees paid by the Salon’s clients. Velarde would \n\nreceive tips for his work, but any gratuities were nominal in amount. The Academy also \n\nderives revenue directly from students, of course: over the course of his thirty‐week \n\ncourse of study, Velarde paid the Academy $12,823 for “tuition, books, kits, and other \n\nfees.” Am. Compl. ¶ 18, App’x 10. \n\n To offer commercial cosmetology services in New York, an individual must \n\nobtain and maintain a State cosmetology license. N.Y. Comp. Codes R. & Regs. tit. 19, \n\n§ 160.2. New York requires license applicants to have completed 1,000 hours of \n\n\n 5 \n \n\f \n\ncoursework in defined subject areas, including safety and health, hair styling, and nail \n\ncare. Id. § 162.4. Aspiring cosmetologists must also pass the state’s licensure \n\nexamination, which has both written and practical components. N.Y. Gen. Bus. Law \n\n§§ 406(2)(b), 407(1). \n\n In his suit, Velarde sought unpaid hourly minimum wages including tips and \n\novertime for his work in the Salon. He contended that, for purposes of FLSA and NYLL, \n\nhe and other Academy students were employees of the Academy while they performed \n\nservices in the Salon.4 In 2016, after the Academy filed its Answer, the assigned \n\nMagistrate Judge (Schroeder, Jr., M.J.) filed a report and recommendation concluding \n\nthat the Academy’s motion for judgment on the pleadings should be granted. In a 2017 \n\ntext order, the District Court rejected Velarde’s objections, accepted the Magistrate \n\nJudge’s report and recommendation, and entered judgment for the Academy. \n\n This appeal followed. \n\n\n DISCUSSION \n\n We review de novo a district court’s decision awarding judgment on \n\nthe pleadings. Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015). \n\n The federal Fair Labor Standards Act requires, among other things, that \n\nemployers pay “[e]mployees engaged in commerce” an hourly minimum wage. 29 \n\nU.S.C. § 206(a). Similarly, the New York Labor Law requires state employers to pay \n\n\n\n \n\n4 Velarde also pursued a claim for quantum meruit against the Academy in the district court \nproceedings. The District Court dismissed that claim. On appeal, Velarde has withdrawn his \nchallenge to the dismissal, and we therefore treat the challenge as waived. \n 6 \n \n\f \n\ntheir “employees” a set minimum wage.5 N.Y. Lab. Law § 652. As described above, \n\nVelarde’s action calls for us to decide whether students at a for‐profit vocational school \n\ncompleting state‐mandated training hours in preparation for (and to qualify for) a state \n\nlicensure exam are correctly treated as “employees” of their respective schools with \n\nrespect to the “work” that they do as they are training. \n\n We have observed elsewhere that FLSA and NYLL define “employee” in “nearly \n\nidentical terms.” Glatt, 811 F.3d at 534. Accordingly, “we construe the NYLL definition \n\nas the same in substance as the definition in the FLSA.”6 Id. FLSA’s definition of \n\n“employee,” however, is far from a model of clarity: it offers the unenlightening \n\ntautology that an “employee” is an “individual employed by an employer.” 29 U.S.C. \n\n§ 203(e)(1). FLSA advises further that to “employ” means “to suffer or permit to work.” \n\nId. § 203(g). \n\n On de novo review, we first conclude that the District Court was correct to \n\nanalyze whether Velarde was an “employee” of the Academy by using the “primary \n\nbeneficiary” test established in Glatt. Applying that test, we then determine that Velarde \n\nwas not an employee of the Academy when enrolled there and working in the Salon, \n\nbecause he was the primary beneficiary of his relationship with the Academy, including \n\nwith respect to his work in the Salon. \n\n\n\n\n \n\n NYLL sets its minimum hourly wage at an amount higher than FLSA’s floor. See N.Y. Lab. \n5\n\nLaw § 652. \n\n The parties do not dispute that our resolution of Velarde’s FLSA claim is dispositive of his \n6\n\nNYLL claim. \n 7 \n \n\f \n\nI. Primary beneficiary test \n\n In Glatt, we considered the employment status of unpaid interns who “were \n\nenrolled in or had recently completed a formal course of post‐secondary education” and \n\nwho were working temporarily in a commercial concern. 811 F.3d at 537. As we \n\nobserved there and have observed in the past, the concept of “employment”—pivotal to \n\nFLSA’s application—is “a flexible [one] to be determined on a case‐by‐case basis by \n\nreview of the totality of the circumstances” while emphasizing the “economic reality” of \n\nthe parties’ relationships. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 141–42 \n\n(2d Cir. 2008); see also Glatt, 811 F.3d at 536. \n\n We looked for guidance to the Supreme Court’s decision in Walling v. Portland \n\nTerminal Co., 330 U.S. 148 (1947). There, the Supreme Court instructed that FLSA, \n\nenacted in 1938, “covers trainees, beginners, apprentices, or learners if they are employed \n\nto work for an employer for compensation.” Id. at 151 (emphasis added). The Court \n\ncautioned, however, that “a person whose work serves only his own interest” does not \n\nnecessarily become “an employee of another person who gives him aid and \n\ninstruction.” Id. at 152. \n\n The Portland Terminal decision addressed whether unpaid “trainees” in a \n\nrailroad’s program for prospective brakemen were employees for FLSA minimum wage \n\npurposes. 330 U.S. at 149–50. The “course of practical training” that constituted the \n\nrailroad’s program had the following features: \n\n If accepted for the training course, an applicant is [assigned] \n to a yard crew for instruction. Under this supervision, he first \n learns the routine activities by observation, and is then \n gradually permitted to do actual work under close scrutiny. \n His activities do not displace any of the regular employees, \n\n 8 \n \n\f \n\n who do most of the work themselves and must stand \n immediately by to supervise whatever the trainees do. The \n applicant’s work does not expedite the company business, but \n may, and sometimes does, actually impede and retard it. \n\nId. An applicant who successfully completed the weeklong training course would be \n\nadded to the list of potential hires “from which the company can draw when their \n\nservices are needed.” Id. at 150. The Court commented that, “[h]ad these trainees taken \n\ncourses in railroading in a public or private vocational school, wholly disassociated \n\nfrom the railroad, it could not reasonably be suggested that they were employees of the \n\nschool.” Id. at 152–53. Reasoning that FLSA “was not intended to penalize railroads for \n\nproviding, free of charge, the same kind of instruction at a place and in a manner which \n\nwould most greatly benefit the trainees,” id. at 153, the Court concluded that the \n\ntrainees were not railroad employees. \n\n Distilling the import of Portland Terminal in the context of interns temporarily \n\nperforming work in a commercial enterprise, we held in Glatt that “the proper question \n\n[with respect to a purported ‘employment’ relationship] is whether the intern or the \n\nemployer is the primary beneficiary of the relationship.” Glatt, 811 F.3d at 536. We \n\nhighlighted several salient features of the “primary beneficiary” test: under it, we \n\nconsider “what the intern receives in exchange for his work”; we “accord[] courts the \n\nflexibility to examine the economic reality as it exists between the intern and the \n\nemployer”; and we acknowledge the complexities of relationships involving “the \n\nexpectation of receiving educational or vocational benefits that are not necessarily \n\nexpected with all forms of employment.” Id. \n\n Velarde argues that the District Court erred in applying Glatt’s primary \n\nbeneficiary test in his situation because he was not an “intern”; in his view, the District \n\n 9 \n \n\f \n\nCourt should have focused solely on what he identifies as the economic reality of his \n\nrelationship with the Academy. Velarde contends that one need ask only whether the \n\nputative employer received an “immediate advantage” from a putative employee’s \n\nwork to define the “economic reality” of this relationship. From this, he argues that the \n\nAcademy must have been his “employer” because it derived revenue by providing \n\nVelarde’s services to the public; any training that Velarde received and the skills that he \n\ndeveloped by virtue of his supervised work experiences in the Salon are, in Velarde’s \n\nview, besides the point. \n\n As Velarde points out, it is true that in Portland Terminal the Supreme Court \n\ncounted as one factor relevant to its holding that the railroad received no “immediate \n\nadvantage” from the trainees’ work. Portland Terminal, 330 U.S. at 153. As we explained \n\nin Glatt, however, Portland Terminal does not imply that FLSA renders any organization \n\nthat receives some immediate benefit from unpaid labor an “employer” of the \n\nindividual from which the benefit is derived. See Glatt, 811 F.3d at 535–36 (rejecting \n\n“immediate advantage” test in favor of “primary beneficiary” analysis). We agree with \n\nVelarde that the benefits gained by the Academy from his time in the Salon are relevant \n\nto determining whether it “employed” Velarde for FLSA purposes, but those benefits \n\nare only one factor among several that properly bear on our analysis. \n\n In Glatt and in subsequent decisions, we have described the primary beneficiary \n\ntest as a “way to distinguish employees from bona fide interns.” Xuedan Wang v. Hearst \n\nCorp., 877 F.3d 69, 72 (2d Cir. 2017). We conclude here that the test is equally suitable for \n\ndistinguishing between “employees” and “bona fide students” of vocational schools or \n\nvocation‐related programs (such as a training salon) where trainees acquire necessary \n\nskills by practicing their craft in a real‐world setting. Like interns, vocational students \n\n\n 10 \n \n\f \n\nenter a course of study with “the expectation of receiving educational or vocational \n\nbenefits that are not necessarily expected with all forms of employment.” Glatt, 811 F.3d \n\nat 536. The primary beneficiary test allows courts to measure the extent to which the \n\nschool meets these expectations against the economic benefits received by the school in \n\nthe form of free labor. As with interns, disentangling the threads of a complex economic \n\nfabric and teasing out the respective benefits garnered by students and their commercial \n\ntraining programs is key to determining whether, for FLSA purposes, a trainee is \n\nserving primarily as an employee of that school or training program—or is primarily a \n\nstudent. \n\n We therefore conclude that the District Court was correct to apply the primary \n\nbeneficiary test in determining whether Velarde was a student or an employee of the \n\nAcademy. \n\n\nII. Velarde was the primary beneficiary of his relationship with the Academy \n\n As set forth above, the primary beneficiary test seeks to assess the relative \n\ndominance in the relationship between host institution and the individual claiming \n\nemployee status of (1) the benefits of a relationship to the individual, (2) the benefits \n\nderived from that relationship by the putative employer, and (3) the expectations of the \n\nparties. In Glatt, we listed several considerations that may, with others, be useful in \n\ndetermining which party is the “primary” beneficiary of a relationship considering the \n\ntotality of the circumstances.7 Several of the Glatt factors are less telling in the vocational \n\n\n \n 7 In Glatt, we enumerated the following seven factors as relevant to the determination: \n\n 1. The extent to which the intern and the employer clearly \n understand that there is no expectation of compensation. Any \n 11 \n \n\f \n\nschool context, where students would seem less likely to expect a paid position with the \n\nschool after they graduate than an intern at a commercial enterprise for whom a \n\nprofessional position might be a goal. In addition, at a vocational school, the program is \n\nby definition tied to some form of an academic calendar (see factor 4, in the margin), \n\nwith students receiving course credit for their work. \n\n Others of the Glatt factors, however, provide insight for determining which party \n\nis the primary beneficiary of the vocational school relationship—a determination that is \n\nlikely to vary in different school settings and possibly in different state regulatory \n\n \n promise of compensation, express or implied, suggests that the \n intern is an employee—and vice versa. \n 2. The extent to which the internship provides training that would \n be similar to that which would be given in an educational \n environment, including the clinical and other hands‐on training \n provided by educational institutions. \n 3. The extent to which the internship is tied to the intern’s formal \n education program by integrated coursework or the receipt of \n academic credit. \n 4. The extent to which the internship accommodates the intern’s \n academic commitments by corresponding to the academic \n calendar. \n 5. The extent to which the internship’s duration is limited to the \n period in which the internship provides the intern with beneficial \n learning. \n 6. The extent to which the intern’s work complements, rather than \n displaces, the work of paid employees while providing significant \n educational benefits to the intern. \n 7. The extent to which the intern and the employer understand that \n the internship is conducted without entitlement to a paid job at the \n conclusion of the internship. \n\nGlatt, 811 F.3d at 536–37. We acknowledged that the list was non‐exhaustive. Id. \n 12 \n \n\f \n\nenvironments. For example, a vocational school is more likely to be found to “employ” \n\nits students if it does not have a “formal education program” with “integrated \n\ncoursework,” and instead exclusively requires students to perform tasks that are the \n\nsame as those done by regularly compensated employees. (See Glatt factor 3.) Similarly, \n\na vocational school that runs a training program whose duration far exceeds “the period \n\nin which the [program] provides the [student] with beneficial learning” may well be the \n\nprimary beneficiary of that relationship. (See Glatt factor 5.) See also Marshall v. Baptist \n\nHosp., Inc., 668 F.2d 234, 236 (6th Cir. 1981) (students are employees subject to FLSA \n\nwhere “the clinical training program was seriously deficient in supervision, and . . . the \n\nstudents continued to perform clerical chores long after the educational value of that \n\nwork was over”). The state licensing requirements may often serve as strong evidence \n\nof the amount of practical training necessary for a student to become a competent \n\nprofessional, but will not always be determinative.8 \n\n We provide these examples and counter‐examples not to limit future courts’ \n\nconsideration of some or all of the Glatt factors in particular circumstances, but to make \n\nplain that courts may reasonably give more weight to some considerations over others \n\nwhen applying the primary beneficiary test to vocational schools and their students. \n\n Here, evaluating the totality of the circumstances presented by the parties’ \n\npleadings and keeping in mind that the goal of the primary beneficiary test is to balance \n\nflexibly the benefits received by the student and the economic realities of the student‐\n\n \n\n8 See Meredith Kolodner & Sarah Butrymowicz, A $21,000 Cosmetology School Debt, and a $9‐an‐\nHour Job, N.Y. Times, Dec. 26, 2018, at \nhttps://www.nytimes.com/2018/12/26/business/cosmetology‐school‐debt‐iowa.html (last visited \nJan. 9, 2019) (describing widely varying state requirements for the number of school hours for a \ncosmetology license and efforts by for‐profit schools to prevent their reduction). \n 13 \n \n\f \n\nentity relationship, Glatt, 811 F.3d at 536, we have little difficulty in concluding that \n\nVelarde was the primary beneficiary of his relationship with the Academy and was not \n\nan employee of the Academy for FLSA and NYLL purposes. \n\n Several observations are key to our reasoning. \n\n To begin, Velarde obtained significant benefits from his work in the Academy’s \n\nSalon: he was required to complete 1,000 hours of coursework in specific practical areas \n\nto qualify for taking the cosmetology license examination. See N.Y. Comp. Codes R. & \n\nRegs. tit. 19, § 162.4. We find it meaningful that the Academy required that Velarde \n\ncomplete not more than, but exactly the number of hours required by the state of New \n\nYork to qualify for licensure (some of it classroom instruction, the bulk of it providing \n\nservices in the Salon). Of those hours spent in the Salon, Velarde performed services \n\nunder the supervision of the Academy’s instructors. Velarde makes no allegation that \n\nthe Academy failed in this supervision to prepare him for either the practical or written \n\ncomponent of the licensing exam. Nor does he claim that his hands‐on experience in the \n\nSalon was unrelated to his formal classroom instruction. \n\n To rebut the inference that we draw, Velarde suggests, rather, that he should \n\nhave been allowed to allocate his time differently among the various areas of study that \n\nthe school required and that he should have been able to avoid performing clerical and \n\njanitorial work that he views as without instructional benefit to him. But “practical skill \n\nmay entail practice, and a [student] gains familiarity with an industry by day to day \n\nprofessional experience” that may include relatively menial or repetitive tasks. Wang, \n\n877 F.3d at 74 (concluding that interns received “beneficial learning” even when \n\nperforming “repetitive or similar tasks”); see also Schumann v. Collier Anesthesia, P.A., 803 \n\nF.3d 1199, 1213 (11th Cir. 2015) (“[T]he mere fact that an employer obtains a benefit \n\n 14 \n \n\f \n\nfrom providing a clinical [program] does not mean that the employer is the ‘primary \n\nbeneficiary’ of the relationship.”). That a vocational school does not provide the optimal \n\nlearning experience for a student does not necessarily transform it into the primary \n\nbeneficiary of the relationship. This is especially so where the school (as did the \n\nAcademy here) provides a state‐accredited course of vocational study, requires no more \n\nthan the number of hours specified by the state, the state’s required numbers of hours \n\nare not challenged as unreasonable, see n. 8, supra, and the school adequately prepares \n\nstudents for that state’s licensure exam (as it did for Velarde). See Benjamin v. B & H \n\nEduc., Inc., 877 F.3d 1139, 1147 (9th Cir. 2017) (students not FLSA employees where \n\n“clinical work allowed students to clock the hours they needed to sit for the state \n\nlicensing exams”). \n\n Furthermore, although Velarde faults the Academy for charging customers fees \n\nfor his cosmetological services that exceeded the Academy’s relevant operating costs (as \n\nhe calculated them), the Academy has no obligation not to turn a reasonable profit on \n\nits operations. The Academy’s enrollment agreement and catalogue advised that \n\ncoursework would include both classroom and practical or “salon area” components, \n\nand Velarde was aware that he would pay the Academy, a for‐profit entity, for his \n\nparticipation in both components, as necessary for him to meet New York’s licensure \n\nrequirements.9 Velarde emphasizes that his 748 hours of unpaid work in the Salon, Am. \n\n \n\n9 Velarde offered conclusory allegations related to his now‐abandoned quantum meruit claim, \nsee n. 4, supra, that he “had a reasonable expectation of receiving payment at an appropriate \nwage rate for the hours [he] worked for Defendants,” Am. Compl. ¶ 69, App’x 21. The only \nallegation that he made in support of the objective reasonableness of any such expectation, \nhowever, was that the Academy “never told [him that] . . . [he] would be forced to work \nwithout pay,” Am. Compl. ¶ 46, App’x 17. This allegation, however, misses the point: Velarde \ndoes not allege that the Academy told him that he would be paid for his time in the Salon. We \n 15 \n \n\f \n\nCompl. ¶ 4, App’x 8, provided an “immediate advantage” to the Academy (in the form \n\nof no‐cost labor in a for‐profit setting), but he does not assert that he replaced paid \n\nemployees at the Academy. Rather, he argues that his lower‐cost labor allowed the \n\nAcademy’s Salon to better compete in the marketplace, strengthening the Academy’s \n\nrevenues and not providing commensurate educational benefit to him. \n\n It is undoubtedly true that the Academy—a for‐profit institution—derived \n\nfinancial value from Velarde’s work in the Salon. That Velarde provided “tangible \n\nbenefits” to the Academy in this way (and in addition to his tuition payments) is not \n\ndispositive of the question before us, however. The sixth Glatt factor considers “the \n\nextent to which the intern’s work complements, rather than displaces, the work of paid \n\nemployees.” Glatt, 811 F.3d at 536‐37. A student’s work is “complementary if it requires \n\nsome level of oversight or involvement by an employee, who may still bear primary \n\nresponsibility.” Wang, 877 F.3d at 75. As Velarde acknowledges in his amended \n\ncomplaint, the Academy advertises that its students provide services “under the \n\nwatchful eye of [its] industry experienced educators.” Am. Compl. ¶ 25, App’x 12. \n\nGiven the need for such supervision, that Velarde was otherwise “useful or productive” \n\nto the Academy did not render him its employee. Wang, 877 F.3d at 75 (observing that \n\nthe Glatt factors do not require that “the alleged employer derive no immediate \n\nadvantage from the activities of the intern”). This is not a case in which a business uses \n\nthe façade of a vocational school to deceive students into working unexpectedly long \n\nhours without compensation, replacing the labor of its paid employees, or working \n\n \ndetermine objectively whether a purported employee had a reasonable expectation of payment. \nSee Brown v. N.Y.C. Dep’t of Educ., 755 F.3d 154, 166 (2d Cir. 2014). Velarde has pointed to no \naffirmative acts on the part of the Academy that would cause an enrollee to expect payment for \nservices provided in the practical portion of the training program. \n 16 \n \n\f \n\nhours well beyond long‐standing state requirements. Once again evaluating the totality \n\nof the circumstances, then, we reiterate our conclusion that Velarde was the primary \n\nbeneficiary of his relationship with the Academy and therefore was not an employee of \n\nthe Academy for purposes of FLSA and NYLL. \n\n Our conclusion is consistent with those of other courts to have addressed this \n\nissue. The Seventh Circuit recently concluded in a closely parallel setting that “the fact \n\nthat [cosmetology] students pay not just for the classroom time but also for the \n\npractical‐training time is fundamentally inconsistent with the notion that during their \n\ntime on the [salon floor] the students were employees.” Hollins v. Regency Corp., 867 \n\nF.3d 830, 836 (7th Cir. 2017). Here, as in Hollins, Velarde knew that he was paying the \n\nAcademy not just for eight weeks of classroom instruction, but also for twenty‐two \n\nweeks of guided practical experience in the Academy’s salon, without which he would \n\nnot have been able to qualify to perform cosmetology services in New York. See also \n\nBenjamin, 877 F.3d at 1147–48 (cosmetology students not employees of for‐profit school \n\nthat provided state‐mandated hours of training for cosmetology licensure). \n\n Similarly, the Sixth Circuit has held that vocational “[s]tudents engage[d] in \n\ncourses of study that have been considered and approved of by the state accrediting \n\nagency” were not employees of the eldercare facility in which they worked. Solis v. \n\nLaurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 531–32 (6th Cir. 2011). That court noted \n\nthat the students received genuine benefits, both tangible and intangible. It \n\nacknowledged that the students might be “employees” covered by FLSA if the \n\n“supervision was inadequate, the exposure to various aspects of the trade limited, and \n\nthe overall value to the students nil,” but determined that none of those descriptors \n\napplied. Id. In this case, Velarde does not allege that his exposure at the Salon to \n\n\n 17 \n \n\f \n\ncosmetology was limited or that he did not obtain substantial value from his learning \n\nexperiences at the Academy. \n\n For these reasons, we are persuaded that the District Court correctly granted \n\njudgment on the pleadings to the Academy on Velarde’s FLSA and NYLL claims. \n\n\n CONCLUSION \n\n The primary beneficiary test articulated in Glatt applies to the relationship \n\nbetween students who attend vocational schools and those schools. Patrick Velarde was \n\nthe primary beneficiary of his relationship with the Academy, including with respect to \n\nhis supervised work in the Salon. Velarde was thus not an “employee” of the Academy \n\nunder FLSA and NYLL. The judgment of the District Court is AFFIRMED. \n\n\n\n\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Velarde v. GW GJ, Inc.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-330\\nVelarde v. GW GJ, Inc., et al.\\n\\n\\n\\n United States Court of Appeals\\n FOR THE SECOND CIRCUIT \\n ______________ \\n \\n August Term, 2017 \\n \\n (Argued: March 8, 2018 Decided: February 5, 2019) \\n \\n Docket No. 17‐330 \\n ______________ \\n \\n PATRICK VELARDE, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY \\n SITUATED, \\n \\n Plaintiff‐Appellant, \\n \\n –v.– \\n \\n GW GJ, INC. D/B/A THE SALON PROFESSIONAL ACADEMY OF BUFFALO, \\n MARGARET GRENAUER, AND PAUL GRENAUER, \\n \\n Defendants‐Appellees. \\n ______________ \\n \\nB e f o r e : \\n \\n CABRANES AND CARNEY, Circuit Judges, and CAPRONI, District Judge.* \\n \\n ______________ \\n \\n Plaintiff‐appellant Patrick Velarde sued The Salon Professional Academy of \\nBuffalo and its owners, Margaret Grenauer and Paul Grenauer, (collectively, “the \\nAcademy”) in the United States District Court for the Western District of New York \\n\\n \\n\\n Judge Valerie E. Caproni, of the United States District Court for the Southern District of New \\n*\\n\\nYork, sitting by designation. \\n\\n \\n\\f \\n\\n(Skretny, J.) for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et \\nseq. (“FLSA”), and Articles 6 and 19 of the New York labor law, N.Y. Lab. Law §§ 190, \\n650 et seq. Velarde alleges that, as a part of his vocational training at the Academy for \\nbecoming a licensed beautician, he was required to perform cosmetology services \\nwithout compensation in the Academy’s student salon. He argues that the requirement \\nviolated FLSA and New York labor law. The District Court granted judgment on the \\npleadings to the Academy, reasoning under the test that we established in Glatt v. Fox \\nSearchlight Pictures, Inc., 811 F.3d 528, 536‐537 (2d Cir. 2015), that Velarde was the \\n“primary beneficiary” of his relationship with the Academy and therefore not an \\n“employee” of the Academy for the purposes of both FLSA and New York labor law. \\nOn de novo review, we agree with the District Court’s analysis and AFFIRM its award \\nof judgment to the Academy. \\n \\n AFFIRMED. \\n ______________ \\n \\n ROBERT WISNIEWSKI, ESQ., New York, NY, for Plaintiff‐\\n Appellant. \\n \\n JAMES W. GRABLE, JR. (Terrence M. Connors on the brief), \\n Connors LLP, Buffalo, NY, for Defendants‐Appellants. \\n ______________ \\n\\nSUSAN L. CARNEY, Circuit Judge: \\n\\n In Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015), we addressed \\n\\nthe application of certain federal and state employment laws to activities performed in a \\n\\ncommercial setting by temporary “interns.” We applied a “primary beneficiary” test: if, \\n\\nunder certain enumerated circumstances, the intern is the “primary beneficiary” of the \\n\\nrelationship, then the host entity is not the intern’s employer and has no legal obligation \\n\\nto pay compensation under those laws; if, on the other hand, the host entity is the \\n\\n“primary beneficiary” of the relationship, then the entity is an employer and federal \\n\\nand state employment laws—in particular, the Fair Labor Standards Employment Act, \\n\\n\\n 2 \\n \\n\\f \\n\\n29 U.S.C. §§ 201 et seq. (“FLSA”), and Articles 6 and 19 of the New York Labor Law \\n\\n§§ 190, 650 et seq. (“NYLL”)—impose compensation obligations. \\n\\n In the case at bar, we consider the applicability of this test to individuals enrolled \\n\\nin a for‐profit vocational academy who are preparing to take a state licensure \\n\\nexamination and who must first fulfill state minimum training requirements. These \\n\\nindividuals fulfill those requirements by working under Academy supervision for a \\n\\ndefined number of hours, without pay. We determine that the Glatt test governs in the \\n\\nfor‐profit vocational training context, and we further conclude that here, the plaintiff, \\n\\nformer student of the Academy was the primary beneficiary of the relationship, thus \\n\\nexcusing the latter from potential compensation obligations under FLSA or NYLL \\n\\nrelated to plaintiff’s limited work there as a trainee. \\n\\n\\n BACKGROUND1 \\n\\n On April 18, 2011, desiring to become a cosmetologist in New York state,2 Patrick \\n\\nVelarde enrolled in the Academy, a for‐profit cosmetology training school operated by \\n\\n \\n\\n1 We review de novo a district court’s decision under Federal Rule of Civil Procedure 12(c) to \\ngrant a defendant’s motion for judgment on the pleadings. In doing so, we accept all factual \\nallegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. L‐\\n7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). In addition to the facts alleged \\nin the complaint, we consider the defendants’ answer, any written documents attached to the \\ncomplaint or the answer, any document that is incorporated by reference into the complaint, \\nany document that is “integral” to the complaint, and any matter of which the court may take \\njudicial notice. Id. at 422. We have identified no material conflicts in the parties’ accounts. \\nAlthough the parties do dispute whether, when enrolling, Velarde was aware that he would \\nhave to work in the Salon without pay to graduate, see Am. Compl. ¶ 46, App’x 17, Velarde \\nundisputedly knew that the program included a practical component, and so we consider the \\ndispute immaterial to our resolution of the appeal. \\n\\n2 The New York State Division of Licensing Services advises that “cosmetology” means: \\n 3 \\n \\n\\f \\n\\nthe individual defendants and located in the City of Tonawanda, in Erie County, New \\n\\nYork. On November 16 of that year, he finished the Academy’s program, having \\n\\nsuccessfully completed what the Academy’s diploma describes as a “1000 hour course \\n\\nof study in [c]osmetology [a]pproved by the state of New York.” App’x 96. The \\n\\nAcademy’s course included both classroom instruction and supervised practical \\n\\nexperience in its student salon (the “Salon”), in which members of the public could \\n\\nreceive cosmetology services and the Academy’s students could practice and refine \\n\\ntheir skills. Velarde provided such services, under supervision, as generally described \\n\\nby his enrollment agreement and course catalogue. \\n\\n Having become a licensed cosmetologist in 2012, Velarde sued the Academy for \\n\\nunpaid wages in 2014—three years after completing the program. He alleged that the \\n\\nAcademy violated FLSA and several sections of NYLL by failing to pay him for the \\n\\nwork that he did in the Salon while he was enrolled at the Academy. In his operative \\n\\ncomplaint,3 he charged that, “under the terms of the students’ enrollment agreement,” \\n\\nhe and all students enrolled in the Academy were unlawfully required to work without \\n\\n \\n\\n providing services to the hair, head, face, neck or scalp of a human being, \\n including but not limited to shaving, trimming, and cutting the hair or beard \\n either by hand or mechanical appliances and the application of antiseptics, \\n powders, oils, clays, lotions or applying tonics to the hair, head, or scalp, and \\n in addition includes providing, for a fee or any consideration or exchange, \\n whether direct or indirect, services for the application of dyes, reactive \\n chemicals, or other preparations to alter the color or to straighten, curl, or alter \\n the structure of the hair of a human being. \\n\\nhttps://www.dos.ny.gov/licensing/cosmetology/cosmetology.html (last visited Jan. 9, 2019); see \\nalso N.Y. Gen. Bus. Law § 400(7). \\n\\n Velarde filed his original complaint on August 22, 2014, and filed an amended complaint on \\n3\\n\\nAugust 26, 2014. References to the “complaint” in this opinion are to the amended complaint. \\n 4 \\n \\n\\f \\n\\npay in the Salon as part of their course of instruction. Am. Compl. ¶ 4, App’x 8; \\n\\nEnrollment Agt., App’x 98. After finishing eight weeks in the classroom, Velarde \\n\\nworked at the Salon, logging 34 unpaid hours per week for 22 weeks and practicing \\n\\nunder the supervision of licensed practitioners. During those 22 weeks, he performed \\n\\n“barbering and hair styling, skin and body treatments, [and] manicure and pedicure \\n\\nservices,” for the public. Am. Compl. ¶¶ 4, 19, App’x at 8, 11. He and other Academy \\n\\nstudents were also obligated to perform janitorial and clerical work at the Salon. \\n\\nStudents in the Salon segment of the vocational program were further required, he \\n\\ncomplains, to provide “whatever cosmetological service was demanded by a customer”: \\n\\nthey could not “choose what services they wanted or needed additional training in.” \\n\\nAm. Compl. ¶ 37(c), App’x at 15. Velarde sought relief both on his own behalf and on \\n\\nbehalf of other former and present students. \\n\\n For Salon services, the Academy charges clients “discounted prices,” with prices \\n\\n“vary[ing] according to student [skill] level.” Am. Compl. ¶¶ 25‐26, App’x 12. The \\n\\nSalon’s rates are lower than those of nearby salons employing only cosmetologists who \\n\\nare already licensed. The Academy—which is, as mentioned, a for‐profit enterprise—\\n\\nderives some of its revenues from the fees paid by the Salon’s clients. Velarde would \\n\\nreceive tips for his work, but any gratuities were nominal in amount. The Academy also \\n\\nderives revenue directly from students, of course: over the course of his thirty‐week \\n\\ncourse of study, Velarde paid the Academy $12,823 for “tuition, books, kits, and other \\n\\nfees.” Am. Compl. ¶ 18, App’x 10. \\n\\n To offer commercial cosmetology services in New York, an individual must \\n\\nobtain and maintain a State cosmetology license. N.Y. Comp. Codes R. & Regs. tit. 19, \\n\\n§ 160.2. New York requires license applicants to have completed 1,000 hours of \\n\\n\\n 5 \\n \\n\\f \\n\\ncoursework in defined subject areas, including safety and health, hair styling, and nail \\n\\ncare. Id. § 162.4. Aspiring cosmetologists must also pass the state’s licensure \\n\\nexamination, which has both written and practical components. N.Y. Gen. Bus. Law \\n\\n§§ 406(2)(b), 407(1). \\n\\n In his suit, Velarde sought unpaid hourly minimum wages including tips and \\n\\novertime for his work in the Salon. He contended that, for purposes of FLSA and NYLL, \\n\\nhe and other Academy students were employees of the Academy while they performed \\n\\nservices in the Salon.4 In 2016, after the Academy filed its Answer, the assigned \\n\\nMagistrate Judge (Schroeder, Jr., M.J.) filed a report and recommendation concluding \\n\\nthat the Academy’s motion for judgment on the pleadings should be granted. In a 2017 \\n\\ntext order, the District Court rejected Velarde’s objections, accepted the Magistrate \\n\\nJudge’s report and recommendation, and entered judgment for the Academy. \\n\\n This appeal followed. \\n\\n\\n DISCUSSION \\n\\n We review de novo a district court’s decision awarding judgment on \\n\\nthe pleadings. Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015). \\n\\n The federal Fair Labor Standards Act requires, among other things, that \\n\\nemployers pay “[e]mployees engaged in commerce” an hourly minimum wage. 29 \\n\\nU.S.C. § 206(a). Similarly, the New York Labor Law requires state employers to pay \\n\\n\\n\\n \\n\\n4 Velarde also pursued a claim for quantum meruit against the Academy in the district court \\nproceedings. The District Court dismissed that claim. On appeal, Velarde has withdrawn his \\nchallenge to the dismissal, and we therefore treat the challenge as waived. \\n 6 \\n \\n\\f \\n\\ntheir “employees” a set minimum wage.5 N.Y. Lab. Law § 652. As described above, \\n\\nVelarde’s action calls for us to decide whether students at a for‐profit vocational school \\n\\ncompleting state‐mandated training hours in preparation for (and to qualify for) a state \\n\\nlicensure exam are correctly treated as “employees” of their respective schools with \\n\\nrespect to the “work” that they do as they are training. \\n\\n We have observed elsewhere that FLSA and NYLL define “employee” in “nearly \\n\\nidentical terms.” Glatt, 811 F.3d at 534. Accordingly, “we construe the NYLL definition \\n\\nas the same in substance as the definition in the FLSA.”6 Id. FLSA’s definition of \\n\\n“employee,” however, is far from a model of clarity: it offers the unenlightening \\n\\ntautology that an “employee” is an “individual employed by an employer.” 29 U.S.C. \\n\\n§ 203(e)(1). FLSA advises further that to “employ” means “to suffer or permit to work.” \\n\\nId. § 203(g). \\n\\n On de novo review, we first conclude that the District Court was correct to \\n\\nanalyze whether Velarde was an “employee” of the Academy by using the “primary \\n\\nbeneficiary” test established in Glatt. Applying that test, we then determine that Velarde \\n\\nwas not an employee of the Academy when enrolled there and working in the Salon, \\n\\nbecause he was the primary beneficiary of his relationship with the Academy, including \\n\\nwith respect to his work in the Salon. \\n\\n\\n\\n\\n \\n\\n NYLL sets its minimum hourly wage at an amount higher than FLSA’s floor. See N.Y. Lab. \\n5\\n\\nLaw § 652. \\n\\n The parties do not dispute that our resolution of Velarde’s FLSA claim is dispositive of his \\n6\\n\\nNYLL claim. \\n 7 \\n \\n\\f \\n\\nI. Primary beneficiary test \\n\\n In Glatt, we considered the employment status of unpaid interns who “were \\n\\nenrolled in or had recently completed a formal course of post‐secondary education” and \\n\\nwho were working temporarily in a commercial concern. 811 F.3d at 537. As we \\n\\nobserved there and have observed in the past, the concept of “employment”—pivotal to \\n\\nFLSA’s application—is “a flexible [one] to be determined on a case‐by‐case basis by \\n\\nreview of the totality of the circumstances” while emphasizing the “economic reality” of \\n\\nthe parties’ relationships. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 141–42 \\n\\n(2d Cir. 2008); see also Glatt, 811 F.3d at 536. \\n\\n We looked for guidance to the Supreme Court’s decision in Walling v. Portland \\n\\nTerminal Co., 330 U.S. 148 (1947). There, the Supreme Court instructed that FLSA, \\n\\nenacted in 1938, “covers trainees, beginners, apprentices, or learners if they are employed \\n\\nto work for an employer for compensation.” Id. at 151 (emphasis added). The Court \\n\\ncautioned, however, that “a person whose work serves only his own interest” does not \\n\\nnecessarily become “an employee of another person who gives him aid and \\n\\ninstruction.” Id. at 152. \\n\\n The Portland Terminal decision addressed whether unpaid “trainees” in a \\n\\nrailroad’s program for prospective brakemen were employees for FLSA minimum wage \\n\\npurposes. 330 U.S. at 149–50. The “course of practical training” that constituted the \\n\\nrailroad’s program had the following features: \\n\\n If accepted for the training course, an applicant is [assigned] \\n to a yard crew for instruction. Under this supervision, he first \\n learns the routine activities by observation, and is then \\n gradually permitted to do actual work under close scrutiny. \\n His activities do not displace any of the regular employees, \\n\\n 8 \\n \\n\\f \\n\\n who do most of the work themselves and must stand \\n immediately by to supervise whatever the trainees do. The \\n applicant’s work does not expedite the company business, but \\n may, and sometimes does, actually impede and retard it. \\n\\nId. An applicant who successfully completed the weeklong training course would be \\n\\nadded to the list of potential hires “from which the company can draw when their \\n\\nservices are needed.” Id. at 150. The Court commented that, “[h]ad these trainees taken \\n\\ncourses in railroading in a public or private vocational school, wholly disassociated \\n\\nfrom the railroad, it could not reasonably be suggested that they were employees of the \\n\\nschool.” Id. at 152–53. Reasoning that FLSA “was not intended to penalize railroads for \\n\\nproviding, free of charge, the same kind of instruction at a place and in a manner which \\n\\nwould most greatly benefit the trainees,” id. at 153, the Court concluded that the \\n\\ntrainees were not railroad employees. \\n\\n Distilling the import of Portland Terminal in the context of interns temporarily \\n\\nperforming work in a commercial enterprise, we held in Glatt that “the proper question \\n\\n[with respect to a purported ‘employment’ relationship] is whether the intern or the \\n\\nemployer is the primary beneficiary of the relationship.” Glatt, 811 F.3d at 536. We \\n\\nhighlighted several salient features of the “primary beneficiary” test: under it, we \\n\\nconsider “what the intern receives in exchange for his work”; we “accord[] courts the \\n\\nflexibility to examine the economic reality as it exists between the intern and the \\n\\nemployer”; and we acknowledge the complexities of relationships involving “the \\n\\nexpectation of receiving educational or vocational benefits that are not necessarily \\n\\nexpected with all forms of employment.” Id. \\n\\n Velarde argues that the District Court erred in applying Glatt’s primary \\n\\nbeneficiary test in his situation because he was not an “intern”; in his view, the District \\n\\n 9 \\n \\n\\f \\n\\nCourt should have focused solely on what he identifies as the economic reality of his \\n\\nrelationship with the Academy. Velarde contends that one need ask only whether the \\n\\nputative employer received an “immediate advantage” from a putative employee’s \\n\\nwork to define the “economic reality” of this relationship. From this, he argues that the \\n\\nAcademy must have been his “employer” because it derived revenue by providing \\n\\nVelarde’s services to the public; any training that Velarde received and the skills that he \\n\\ndeveloped by virtue of his supervised work experiences in the Salon are, in Velarde’s \\n\\nview, besides the point. \\n\\n As Velarde points out, it is true that in Portland Terminal the Supreme Court \\n\\ncounted as one factor relevant to its holding that the railroad received no “immediate \\n\\nadvantage” from the trainees’ work. Portland Terminal, 330 U.S. at 153. As we explained \\n\\nin Glatt, however, Portland Terminal does not imply that FLSA renders any organization \\n\\nthat receives some immediate benefit from unpaid labor an “employer” of the \\n\\nindividual from which the benefit is derived. See Glatt, 811 F.3d at 535–36 (rejecting \\n\\n“immediate advantage” test in favor of “primary beneficiary” analysis). We agree with \\n\\nVelarde that the benefits gained by the Academy from his time in the Salon are relevant \\n\\nto determining whether it “employed” Velarde for FLSA purposes, but those benefits \\n\\nare only one factor among several that properly bear on our analysis. \\n\\n In Glatt and in subsequent decisions, we have described the primary beneficiary \\n\\ntest as a “way to distinguish employees from bona fide interns.” Xuedan Wang v. Hearst \\n\\nCorp., 877 F.3d 69, 72 (2d Cir. 2017). We conclude here that the test is equally suitable for \\n\\ndistinguishing between “employees” and “bona fide students” of vocational schools or \\n\\nvocation‐related programs (such as a training salon) where trainees acquire necessary \\n\\nskills by practicing their craft in a real‐world setting. Like interns, vocational students \\n\\n\\n 10 \\n \\n\\f \\n\\nenter a course of study with “the expectation of receiving educational or vocational \\n\\nbenefits that are not necessarily expected with all forms of employment.” Glatt, 811 F.3d \\n\\nat 536. The primary beneficiary test allows courts to measure the extent to which the \\n\\nschool meets these expectations against the economic benefits received by the school in \\n\\nthe form of free labor. As with interns, disentangling the threads of a complex economic \\n\\nfabric and teasing out the respective benefits garnered by students and their commercial \\n\\ntraining programs is key to determining whether, for FLSA purposes, a trainee is \\n\\nserving primarily as an employee of that school or training program—or is primarily a \\n\\nstudent. \\n\\n We therefore conclude that the District Court was correct to apply the primary \\n\\nbeneficiary test in determining whether Velarde was a student or an employee of the \\n\\nAcademy. \\n\\n\\nII. Velarde was the primary beneficiary of his relationship with the Academy \\n\\n As set forth above, the primary beneficiary test seeks to assess the relative \\n\\ndominance in the relationship between host institution and the individual claiming \\n\\nemployee status of (1) the benefits of a relationship to the individual, (2) the benefits \\n\\nderived from that relationship by the putative employer, and (3) the expectations of the \\n\\nparties. In Glatt, we listed several considerations that may, with others, be useful in \\n\\ndetermining which party is the “primary” beneficiary of a relationship considering the \\n\\ntotality of the circumstances.7 Several of the Glatt factors are less telling in the vocational \\n\\n\\n \\n 7 In Glatt, we enumerated the following seven factors as relevant to the determination: \\n\\n 1. The extent to which the intern and the employer clearly \\n understand that there is no expectation of compensation. Any \\n 11 \\n \\n\\f \\n\\nschool context, where students would seem less likely to expect a paid position with the \\n\\nschool after they graduate than an intern at a commercial enterprise for whom a \\n\\nprofessional position might be a goal. In addition, at a vocational school, the program is \\n\\nby definition tied to some form of an academic calendar (see factor 4, in the margin), \\n\\nwith students receiving course credit for their work. \\n\\n Others of the Glatt factors, however, provide insight for determining which party \\n\\nis the primary beneficiary of the vocational school relationship—a determination that is \\n\\nlikely to vary in different school settings and possibly in different state regulatory \\n\\n \\n promise of compensation, express or implied, suggests that the \\n intern is an employee—and vice versa. \\n 2. The extent to which the internship provides training that would \\n be similar to that which would be given in an educational \\n environment, including the clinical and other hands‐on training \\n provided by educational institutions. \\n 3. The extent to which the internship is tied to the intern’s formal \\n education program by integrated coursework or the receipt of \\n academic credit. \\n 4. The extent to which the internship accommodates the intern’s \\n academic commitments by corresponding to the academic \\n calendar. \\n 5. The extent to which the internship’s duration is limited to the \\n period in which the internship provides the intern with beneficial \\n learning. \\n 6. The extent to which the intern’s work complements, rather than \\n displaces, the work of paid employees while providing significant \\n educational benefits to the intern. \\n 7. The extent to which the intern and the employer understand that \\n the internship is conducted without entitlement to a paid job at the \\n conclusion of the internship. \\n\\nGlatt, 811 F.3d at 536–37. We acknowledged that the list was non‐exhaustive. Id. \\n 12 \\n \\n\\f \\n\\nenvironments. For example, a vocational school is more likely to be found to “employ” \\n\\nits students if it does not have a “formal education program” with “integrated \\n\\ncoursework,” and instead exclusively requires students to perform tasks that are the \\n\\nsame as those done by regularly compensated employees. (See Glatt factor 3.) Similarly, \\n\\na vocational school that runs a training program whose duration far exceeds “the period \\n\\nin which the [program] provides the [student] with beneficial learning” may well be the \\n\\nprimary beneficiary of that relationship. (See Glatt factor 5.) See also Marshall v. Baptist \\n\\nHosp., Inc., 668 F.2d 234, 236 (6th Cir. 1981) (students are employees subject to FLSA \\n\\nwhere “the clinical training program was seriously deficient in supervision, and . . . the \\n\\nstudents continued to perform clerical chores long after the educational value of that \\n\\nwork was over”). The state licensing requirements may often serve as strong evidence \\n\\nof the amount of practical training necessary for a student to become a competent \\n\\nprofessional, but will not always be determinative.8 \\n\\n We provide these examples and counter‐examples not to limit future courts’ \\n\\nconsideration of some or all of the Glatt factors in particular circumstances, but to make \\n\\nplain that courts may reasonably give more weight to some considerations over others \\n\\nwhen applying the primary beneficiary test to vocational schools and their students. \\n\\n Here, evaluating the totality of the circumstances presented by the parties’ \\n\\npleadings and keeping in mind that the goal of the primary beneficiary test is to balance \\n\\nflexibly the benefits received by the student and the economic realities of the student‐\\n\\n \\n\\n8 See Meredith Kolodner & Sarah Butrymowicz, A $21,000 Cosmetology School Debt, and a $9‐an‐\\nHour Job, N.Y. Times, Dec. 26, 2018, at \\nhttps://www.nytimes.com/2018/12/26/business/cosmetology‐school‐debt‐iowa.html (last visited \\nJan. 9, 2019) (describing widely varying state requirements for the number of school hours for a \\ncosmetology license and efforts by for‐profit schools to prevent their reduction). \\n 13 \\n \\n\\f \\n\\nentity relationship, Glatt, 811 F.3d at 536, we have little difficulty in concluding that \\n\\nVelarde was the primary beneficiary of his relationship with the Academy and was not \\n\\nan employee of the Academy for FLSA and NYLL purposes. \\n\\n Several observations are key to our reasoning. \\n\\n To begin, Velarde obtained significant benefits from his work in the Academy’s \\n\\nSalon: he was required to complete 1,000 hours of coursework in specific practical areas \\n\\nto qualify for taking the cosmetology license examination. See N.Y. Comp. Codes R. & \\n\\nRegs. tit. 19, § 162.4. We find it meaningful that the Academy required that Velarde \\n\\ncomplete not more than, but exactly the number of hours required by the state of New \\n\\nYork to qualify for licensure (some of it classroom instruction, the bulk of it providing \\n\\nservices in the Salon). Of those hours spent in the Salon, Velarde performed services \\n\\nunder the supervision of the Academy’s instructors. Velarde makes no allegation that \\n\\nthe Academy failed in this supervision to prepare him for either the practical or written \\n\\ncomponent of the licensing exam. Nor does he claim that his hands‐on experience in the \\n\\nSalon was unrelated to his formal classroom instruction. \\n\\n To rebut the inference that we draw, Velarde suggests, rather, that he should \\n\\nhave been allowed to allocate his time differently among the various areas of study that \\n\\nthe school required and that he should have been able to avoid performing clerical and \\n\\njanitorial work that he views as without instructional benefit to him. But “practical skill \\n\\nmay entail practice, and a [student] gains familiarity with an industry by day to day \\n\\nprofessional experience” that may include relatively menial or repetitive tasks. Wang, \\n\\n877 F.3d at 74 (concluding that interns received “beneficial learning” even when \\n\\nperforming “repetitive or similar tasks”); see also Schumann v. Collier Anesthesia, P.A., 803 \\n\\nF.3d 1199, 1213 (11th Cir. 2015) (“[T]he mere fact that an employer obtains a benefit \\n\\n 14 \\n \\n\\f \\n\\nfrom providing a clinical [program] does not mean that the employer is the ‘primary \\n\\nbeneficiary’ of the relationship.”). That a vocational school does not provide the optimal \\n\\nlearning experience for a student does not necessarily transform it into the primary \\n\\nbeneficiary of the relationship. This is especially so where the school (as did the \\n\\nAcademy here) provides a state‐accredited course of vocational study, requires no more \\n\\nthan the number of hours specified by the state, the state’s required numbers of hours \\n\\nare not challenged as unreasonable, see n. 8, supra, and the school adequately prepares \\n\\nstudents for that state’s licensure exam (as it did for Velarde). See Benjamin v. B & H \\n\\nEduc., Inc., 877 F.3d 1139, 1147 (9th Cir. 2017) (students not FLSA employees where \\n\\n“clinical work allowed students to clock the hours they needed to sit for the state \\n\\nlicensing exams”). \\n\\n Furthermore, although Velarde faults the Academy for charging customers fees \\n\\nfor his cosmetological services that exceeded the Academy’s relevant operating costs (as \\n\\nhe calculated them), the Academy has no obligation not to turn a reasonable profit on \\n\\nits operations. The Academy’s enrollment agreement and catalogue advised that \\n\\ncoursework would include both classroom and practical or “salon area” components, \\n\\nand Velarde was aware that he would pay the Academy, a for‐profit entity, for his \\n\\nparticipation in both components, as necessary for him to meet New York’s licensure \\n\\nrequirements.9 Velarde emphasizes that his 748 hours of unpaid work in the Salon, Am. \\n\\n \\n\\n9 Velarde offered conclusory allegations related to his now‐abandoned quantum meruit claim, \\nsee n. 4, supra, that he “had a reasonable expectation of receiving payment at an appropriate \\nwage rate for the hours [he] worked for Defendants,” Am. Compl. ¶ 69, App’x 21. The only \\nallegation that he made in support of the objective reasonableness of any such expectation, \\nhowever, was that the Academy “never told [him that] . . . [he] would be forced to work \\nwithout pay,” Am. Compl. ¶ 46, App’x 17. This allegation, however, misses the point: Velarde \\ndoes not allege that the Academy told him that he would be paid for his time in the Salon. We \\n 15 \\n \\n\\f \\n\\nCompl. ¶ 4, App’x 8, provided an “immediate advantage” to the Academy (in the form \\n\\nof no‐cost labor in a for‐profit setting), but he does not assert that he replaced paid \\n\\nemployees at the Academy. Rather, he argues that his lower‐cost labor allowed the \\n\\nAcademy’s Salon to better compete in the marketplace, strengthening the Academy’s \\n\\nrevenues and not providing commensurate educational benefit to him. \\n\\n It is undoubtedly true that the Academy—a for‐profit institution—derived \\n\\nfinancial value from Velarde’s work in the Salon. That Velarde provided “tangible \\n\\nbenefits” to the Academy in this way (and in addition to his tuition payments) is not \\n\\ndispositive of the question before us, however. The sixth Glatt factor considers “the \\n\\nextent to which the intern’s work complements, rather than displaces, the work of paid \\n\\nemployees.” Glatt, 811 F.3d at 536‐37. A student’s work is “complementary if it requires \\n\\nsome level of oversight or involvement by an employee, who may still bear primary \\n\\nresponsibility.” Wang, 877 F.3d at 75. As Velarde acknowledges in his amended \\n\\ncomplaint, the Academy advertises that its students provide services “under the \\n\\nwatchful eye of [its] industry experienced educators.” Am. Compl. ¶ 25, App’x 12. \\n\\nGiven the need for such supervision, that Velarde was otherwise “useful or productive” \\n\\nto the Academy did not render him its employee. Wang, 877 F.3d at 75 (observing that \\n\\nthe Glatt factors do not require that “the alleged employer derive no immediate \\n\\nadvantage from the activities of the intern”). This is not a case in which a business uses \\n\\nthe façade of a vocational school to deceive students into working unexpectedly long \\n\\nhours without compensation, replacing the labor of its paid employees, or working \\n\\n \\ndetermine objectively whether a purported employee had a reasonable expectation of payment. \\nSee Brown v. N.Y.C. Dep’t of Educ., 755 F.3d 154, 166 (2d Cir. 2014). Velarde has pointed to no \\naffirmative acts on the part of the Academy that would cause an enrollee to expect payment for \\nservices provided in the practical portion of the training program. \\n 16 \\n \\n\\f \\n\\nhours well beyond long‐standing state requirements. Once again evaluating the totality \\n\\nof the circumstances, then, we reiterate our conclusion that Velarde was the primary \\n\\nbeneficiary of his relationship with the Academy and therefore was not an employee of \\n\\nthe Academy for purposes of FLSA and NYLL. \\n\\n Our conclusion is consistent with those of other courts to have addressed this \\n\\nissue. The Seventh Circuit recently concluded in a closely parallel setting that “the fact \\n\\nthat [cosmetology] students pay not just for the classroom time but also for the \\n\\npractical‐training time is fundamentally inconsistent with the notion that during their \\n\\ntime on the [salon floor] the students were employees.” Hollins v. Regency Corp., 867 \\n\\nF.3d 830, 836 (7th Cir. 2017). Here, as in Hollins, Velarde knew that he was paying the \\n\\nAcademy not just for eight weeks of classroom instruction, but also for twenty‐two \\n\\nweeks of guided practical experience in the Academy’s salon, without which he would \\n\\nnot have been able to qualify to perform cosmetology services in New York. See also \\n\\nBenjamin, 877 F.3d at 1147–48 (cosmetology students not employees of for‐profit school \\n\\nthat provided state‐mandated hours of training for cosmetology licensure). \\n\\n Similarly, the Sixth Circuit has held that vocational “[s]tudents engage[d] in \\n\\ncourses of study that have been considered and approved of by the state accrediting \\n\\nagency” were not employees of the eldercare facility in which they worked. Solis v. \\n\\nLaurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 531–32 (6th Cir. 2011). That court noted \\n\\nthat the students received genuine benefits, both tangible and intangible. It \\n\\nacknowledged that the students might be “employees” covered by FLSA if the \\n\\n“supervision was inadequate, the exposure to various aspects of the trade limited, and \\n\\nthe overall value to the students nil,” but determined that none of those descriptors \\n\\napplied. Id. In this case, Velarde does not allege that his exposure at the Salon to \\n\\n\\n 17 \\n \\n\\f \\n\\ncosmetology was limited or that he did not obtain substantial value from his learning \\n\\nexperiences at the Academy. \\n\\n For these reasons, we are persuaded that the District Court correctly granted \\n\\njudgment on the pleadings to the Academy on Velarde’s FLSA and NYLL claims. \\n\\n\\n CONCLUSION \\n\\n The primary beneficiary test articulated in Glatt applies to the relationship \\n\\nbetween students who attend vocational schools and those schools. Patrick Velarde was \\n\\nthe primary beneficiary of his relationship with the Academy, including with respect to \\n\\nhis supervised work in the Salon. Velarde was thus not an “employee” of the Academy \\n\\nunder FLSA and NYLL. The judgment of the District Court is AFFIRMED. \\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":487,"cells":{"id":{"kind":"number","value":8443863,"string":"8,443,863"},"name":{"kind":"string","value":"Patrick VELARDE, on Behalf of Himself and All Others Similarly Situated v. GW GJ, INC. d/b/a the Salon Professional Academy of Buffalo, Margaret Grenauer, and Paul Grenauer"},"name_abbreviation":{"kind":"string","value":"Velarde v. GW GJ, Inc."},"decision_date":{"kind":"string","value":"2019-02-05"},"docket_number":{"kind":"string","value":"Docket No. 17-330; August Term, 2017"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Cabranes, Caproni, Carney\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415290/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"CABRANES"},"judge2":{"kind":"string","value":"CAPRONI"},"judge3":{"kind":"string","value":"CARNEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443863/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Patrick VELARDE, on Behalf of Himself and All Others Similarly Situated v. GW GJ, INC. d/b/a the Salon Professional Academy of Buffalo, Margaret Grenauer, and Paul Grenauer\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Patrick VELARDE, on Behalf of Himself and All Others Similarly Situated v. GW GJ, INC. d/b/a the Salon Professional Academy of Buffalo, Margaret Grenauer, and Paul Grenauer\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":488,"cells":{"id":{"kind":"number","value":4587729,"string":"4,587,729"},"name":{"kind":"string","value":"LEHMAN XS TRUST, SERIES 2006-GP2, (LXS 2006-GP2), BY U.S. BANK NATIONAL ASSOCIATION, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP3, (LXS 2006-GP3), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP4, (LXS 2006-GP4), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Plaintiffs-Appellants, v. GREENPOINT MORTGAGE FUNDING, INC., Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Lehman XS Trust v. Greenpoint Mortgage Funding, Inc."},"decision_date":{"kind":"string","value":"2019-02-06"},"docket_number":{"kind":"string","value":"Docket 17-1290; August Term 2017"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wesley, Chin, Carney\", \"parties\": \"\", \"opinions\": [{\"author\": \"WESLEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐1290 \\nLehman XS Trust v. Greenpoint Mortgage Funding, Inc. \\n\\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n ______________ \\n \\n August Term 2017 \\n \\n (Argued: April 17, 2018 Decided: February 6, 2019) \\n \\n Docket 17‐1290 \\n \\n LEHMAN XS TRUST, SERIES 2006‐GP2, (LXS 2006‐GP2), by U.S. BANK \\n NATIONAL ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS \\n TRUST, SERIES 2006‐GP3, (LXS 2006‐GP3), by U.S. BANK NATIONAL \\n ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS TRUST, SERIES \\n 2006‐GP4, (LXS 2006‐GP4), by U.S. BANK NATIONAL ASSOCIATION, solely in \\n its capacity as Trustee, \\n \\n Plaintiffs‐Appellants, \\n \\n v. \\n \\n GREENPOINT MORTGAGE FUNDING, INC., \\n \\n Defendant‐Appellee.* \\n ______________ \\n \\nBefore: \\n WESLEY, CHIN, AND CARNEY, Circuit Judges. \\n \\n Plaintiff U.S. Bank National Association (“U.S. Bank”) appeals from a \\njudgment entered in the United States District Court for the Southern District of \\nNew York (Carter, J.) dismissing its second amended consolidated complaint as \\nuntimely. U.S. Bank argues, among other things, that the district court erred in \\n\\n The Clerk of the Court is respectfully directed to amend the official caption as noted \\n*\\n\\nabove. \\n\\fdismissing its complaint because (1) its claim for indemnification under the \\ncontract in dispute is independent of its claim for breach of that contract, and the \\nformer claim therefore was timely filed in federal court; and (2) its claim for \\nindemnification based on separate contracts executed at a later date relates back \\nto the original state‐court filing under Federal Rule of Civil Procedure 15(c). We \\ndisagree. AFFIRMED. \\n _________________ \\n\\n HECTOR TORRES (David J. Abrams, David J. Mark, on the brief), \\n Kasowitz Benson Torres LLP, New York, NY, for Plaintiffs‐\\n Appellants. \\n\\n THEODORE R. SNYDER (James A. Murphy, New York, NY; \\n Cameron S. Matheson, Glen Allen, VA, on the brief), Murphy & \\n McGonigle, P.C., for Defendant‐Appellee. \\n\\n _________________ \\n\\nWESLEY, Circuit Judge: \\n\\n This appeal is the most recent chapter in the ongoing saga of the last \\n\\ndecade’s housing finance crisis. At the core of the appeal are three trusts (the \\n\\n“Trusts”) composed of residential mortgage‐backed securities that Defendant‐\\n\\nAppellee GreenPoint Mortgage Funding, Inc. (“GreenPoint”) sold in 2006 to \\n\\nLehman Brothers Holding, Inc., and Lehman Brothers Bank, FSB (collectively, \\n\\n“Lehman”), with Plaintiff‐Appellant U.S. Bank acting as Trustee. Six years after \\n\\nthe sale, in 2012, a forensic review of the Trusts revealed that nearly all of the \\n\\n\\n \\n \\n \\n 2 \\n \\n \\n\\fsample mortgages GreenPoint sold to Lehman were in breach of the \\n\\nrepresentations and warranties (“R & Ws”) GreenPoint made in its Flow Mortgage \\n\\nLoan Purchase and Warranties Agreements (“MLPAs”) with Lehman. \\n\\n GreenPoint failed to cure or repurchase the loans within the contractual time \\n\\nframes. As a result, the Federal Housing Finance Agency (“FHFA”)—acting on \\n\\nbehalf of U.S. Bank as Trustee and as conservator for the Federal Home Loan \\n\\nMortgage Corporation (“Freddie Mac”),1 which in turn was the beneficial owner \\n\\nof some of the certificates issued by the Trusts—filed summonses with notice in \\n\\nNew York Supreme Court.2 \\n\\n GreenPoint removed the actions to federal court, at which point the FHFA \\n\\ndropped out of the litigation and U.S. Bank as Trustee filed an amended and \\n\\n\\n\\n\\n On September 6, 2008, Freddie Mac was placed into conservatorship by the FHFA \\n1\\n\\npursuant to 12 U.S.C. § 4617.\\n2 In the New York courts, a plaintiff commences an action “by filing a summons and \\ncomplaint or summons with notice.” N.Y. C.P.L.R. § 304(a). A party may elect to file a \\nsummons with notice if the party is not prepared to serve the complaint; in that case, the \\nsummons must put the defendant on notice of “the nature of the action and the relief \\nsought,” as well as “the sum of money for which judgment may be taken in case of \\ndefault.” Id. § 305(b). \\n \\n \\n \\n 3 \\n \\n \\n\\fconsolidated complaint.3 After discovery and the filing of a second amended \\n\\nconsolidated complaint, GreenPoint moved for summary judgment as to three \\n\\ncounts of this complaint, and to dismiss as to the fourth count, arguing, among \\n\\nother things, that the claims were barred by New York’s statute of limitations. \\n\\n The district court concluded, for various reasons discussed in this opinion, \\n\\nthat none of U.S. Bank’s claims was timely. The issue before this Court is whether \\n\\nany of U.S Bank’s claims survive GreenPoint’s motions for summary judgment \\n\\nand dismissal. We affirm the district court’s conclusion that none does. \\n\\n BACKGROUND \\n\\n I. Factual Background \\n\\n In 2006, Lehman, not a party to this appeal, purchased aggregated pools of \\n\\nresidential home mortgages from GreenPoint.4 The sales were governed by two \\n\\n\\n\\n3 The FHFA ceased prosecuting its claims in this case because of a “no action” clause \\ncontained in the Trust Agreements. A “no action” clause bars “individual certificate \\nholders from bringing independent law suits which are more effectively brought by the \\ntrustee unless certain exceptions are met.” Deutsche Bank Nat’l Tr. Co. v. Quicken Loans Inc., \\n810 F.3d 861, 868 n.8 (2d Cir. 2015) (cleaned up) (internal quotation marks omitted) \\n(“Deutsche Bank”). \\n4 In 2006, before Lehman began bankruptcy proceedings, U.S. Bank entered into \\nagreements to serve as Trustee of the Trusts at issue in this case. \\n \\n \\n \\n 4 \\n \\n \\n\\fMLPAs, each of which contained a series of R & Ws as to the quality of the \\n\\nmortgage loans.5 When Lehman purchased the loans from GreenPoint in 2006, \\n\\nthey had an aggregate principal balance exceeding $3.39 billion. \\n\\n Lehman conveyed the mortgage loans and its rights under the MLPAs to a \\n\\ndepositor (also not a party to this appeal), which then conveyed the mortgage \\n\\nloans to three Trusts—GP2, GP3, and GP4—via another set of contracts \\n\\ndenominated “Trust Agreements.”6 The last dates on which Lehman purchased \\n\\nmortgage loans from GreenPoint (i.e., the effective dates of the R & Ws) were May \\n\\n15, 2006 (GP2), June 15, 2006 (GP3), and July 17, 2006 (GP4). The Trusts closed on \\n\\n\\n5 Although the MLPAs at issue are separate contracts, the language relevant to the issues \\non appeal is identical in the two documents, and U.S. Bank treats the documents as one \\nin its brief to this Court. The first MLPA was signed between Lehman Brothers Bank, FSB \\nand GreenPoint in 2001; the second MLPA was signed between Lehman Brothers \\nHoldings, Inc. and GreenPoint in 2006. \\n6 The “depositor” here was a third‐party entity called Structured Asset Securities \\nCorporation (“SASC”). SASC’s role was to create the three Trusts and, “[c]oncurrently \\nwith the execution” of the Trust Agreements, to “transfer, assign, set over, deposit with \\nand otherwise convey to the Trustee, without recourse . . . all the right, title and interest \\nof the Depositor in and to the Mortgage Loans.” J.A. 387, § 2.01(a). In other words, the \\ndepositor’s role was to create the Trusts. In the same moment that the parties closed on \\nthe MLPAs, SASC acquired an interest in the Trust’s assets, placed the assets in the Trusts, \\nand transferred the Trusts to the Trustee (U.S. Bank). The signatories to the Trust \\nAgreements were SASC as depositor; U.S. Bank as Trustee; Aurora Loan Services LLC as \\nmaster servicer (a role not relevant to this appeal); and Lehman as underwriter. \\n \\n \\n \\n 5 \\n \\n \\n\\fthe MLPAs on May 31, 2006 (GP2), June 30, 2006 (GP3), and July 31, 2006 (GP4). \\n\\nOnce the mortgage loans were deposited into the Trusts, they were securitized and \\n\\ncertificates were issued representing rights to cash flows from the securitized loan \\n\\nportfolios. Investors then purchased the certificates, thereby acquiring an \\n\\nownership interest in the Trusts. Freddie Mac was one of these investors.7 \\n\\n The R & Ws contained in the MLPAs and the Trust Agreements made \\n\\nassertions about the quality of individual mortgage loans and the mortgage loan \\n\\npools. Specifically, Section 7 of the MLPAs represented that the mortgage loans \\n\\nwere “underwritten in accordance with [GreenPoint’s] Underwriting Guidelines,” \\n\\nJ.A. 160, 261; that the mortgage loan schedules were “complete, true and correct,” \\n\\nid. 154, 255; that GreenPoint possessed complete mortgage files, id. 161, 262; and \\n\\nthat, except as specifically scheduled, the loan‐to‐value ratio for the mortgage \\n\\nloans did not exceed 80%, id. 158, 259. The MLPAs provided that GreenPoint made \\n\\n\\n7 Freddie Mac was the beneficial owner of certificates in a single class issued by each of \\nthe Trusts. It did not, however, own more than 25% of “each Class affected thereby” the \\nalleged default, a condition the contractual no action clause required for a certificate \\nholder to commence litigation. Although we note that GreenPoint appears to be correct \\nthat the FHFA (acting as conservator for Freddie Mac) did not satisfy this condition, we \\nexpress no judgment on GreenPoint’s merits argument that the FHFA lacked standing to \\nbring suit because of the no action clause. \\n \\n \\n \\n 6 \\n \\n \\n\\fthese R & Ws “as of” each closing date. Section 2.03 of the Trust Agreements \\n\\nincorporated the R & Ws from the MLPAs. \\n\\n In an effort to ensure compliance with the R & Ws, the MLPAs and the Trust \\n\\nAgreements created a contractual remedy in the event that GreenPoint breached. \\n\\nUnder Section 8 of the MLPAs, upon learning of a breach, GreenPoint had sixty \\n\\ndays to “use its best efforts promptly to cure such [b]reach in all material respects.” \\n\\nId. 165, 268. If the breach could not be cured, Section 8 of the MLPAs provided that \\n\\nGreenPoint “shall, at the Purchaser’s option, repurchase such Mortgage Loan” at \\n\\nan established repurchase price. Id. The Trust Agreements included an identical \\n\\nclause, except they gave GreenPoint ninety days from the discovery of the breach \\n\\nto cure or repurchase. The same section of the MLPAs contained an Accrual \\n\\nProvision that established how the parties would proceed in the event of a breach.8 \\n\\n\\n\\n\\n8 The Accrual Provision states: \\n Any cause of action against [GreenPoint] relating to or arising out of the \\n Breach of any [R & Ws] . . . shall accrue as to any Mortgage Loan upon \\n (i) discovery of such Breach by the Purchaser or notice thereof by \\n [GreenPoint] to the Purchaser, (ii) failures by [GreenPoint] to cure such \\n Breach or repurchase such Mortgage Loan as specified above, and \\n \\n \\n \\n 7 \\n \\n \\n\\f Section 9 of the MLPAs also contained an indemnification clause, which \\n\\nreads, in relevant part: \\n\\n [GreenPoint] agrees to indemnify [Lehman] and hold it harmless \\n from and against any and all claims, losses, damages, penalties, fines, \\n forfeitures, legal fees and related costs, judgments, and any other \\n costs, fees and expenses that [Lehman] may sustain in any way \\n related to (i) any act or omission on the part of [GreenPoint] or any \\n other person or entity in the origination, receiving, processing, \\n funding or servicing any Mortgage Loan prior to the related Transfer \\n Date or otherwise arising from the transfer of servicing of the \\n Mortgage Loans provided for in this Agreement, [and] (ii) any \\n assertion based on, grounded upon [or] resulting from a Breach of any \\n of [GreenPoint’s R & Ws] contained herein . . . . [GreenPoint] shall \\n immediately notify [Lehman] if a claim is made by a third party with \\n respect to this Agreement or the Mortgage Loans . . . \\n \\nJ.A. 167, 270. \\n \\n In addition to the indemnification provisions included in the MLPAs, \\n\\nGreenPoint (together with Lehman and SASC) entered into separate \\n\\nIndemnification Agreements for each Trust. The agreements provided that \\n\\nGreenPoint would “indemnify and hold harmless” the other parties to the MLPAs \\n\\n\\n\\n\\n (iii) demand upon [GreenPoint] by the Purchaser for compliance with this \\n Agreement. \\nJ.A. 166, 269. \\n \\n \\n \\n 8 \\n \\n \\n\\fand Trust Agreements “from and against any and all losses, claims, liabilities, \\n\\ndamages, penalties, fines, forfeitures, legal fees and expenses and related costs, \\n\\njudgments, and any other costs, fees and expenses” that “arise out of or are based \\n\\nupon any untrue statement or alleged untrue statement of any material fact” or \\n\\nthe omission of any such fact in the information GreenPoint provided to Lehman. \\n\\nId. 1062, 1071, 1080. The relevant “as of” dates for the Indemnification Agreements \\n\\nwere May 30, 2006 (GP2); June 28, 2006 (GP3); and July 28, 2006 (GP4). \\n\\n In 2012, Freddie Mac conducted a forensic review of the loan files9 and \\n\\ndetermined that an overwhelming percentage of the mortgage loans in the Trusts \\n\\nbreached GreenPoint’s R & Ws under the MLPAs and Trust Agreements.10 U.S. \\n\\n\\n9 The operative complaint discusses the forensic review in the passive voice, making it \\nimpossible for us to determine from the complaint alone who initiated the review in 2012 \\nand why. See, e.g., J.A. 1129 ¶ 41 (“Forensic reviews were undertaken . . . .“). However, \\nU.S. Bank’s brief to this Court explains that Freddie Mac—not U.S. Bank—conducted the \\nreview, presumably after it and other certificate holders suffered major losses on their \\ninvestments because of high rates of default. Appellant Br. 9. \\n U.S. Bank alleges that this analysis showed that 93.5% of the sampled loans in the GP2 \\n10\\n\\nTrust were in breach, 99.8% of the sampled loans in the GP3 Trust were in breach, and \\n100% of the sampled loans in the GP4 Trust were in breach. The breaches included \\nmisrepresentations of borrower income, leading to a higher debt‐to‐income ratio than \\nGreenPoint’s guidelines permitted; misrepresentations of occupancy status of homes to \\nwhich the mortgage loans related, decreasing the value of the mortgage loans; improper \\ncalculations of debt and debt‐to‐income ratios; failure to verify borrower assets or \\n \\n \\n \\n 9 \\n \\n \\n\\fBank submitted breach notices to GreenPoint on the following dates: March 19, \\n\\n2012, and August 24, 2012, for the GP2 Trust; March 19, 2012, for the GP3 Trust; \\n\\nand April 17, 2012, for the GP4 Trust. GreenPoint did not cure or repurchase within \\n\\nthe sixty‐ or ninety‐day periods established in the MLPAs and Trust Agreements, \\n\\nrespectively. \\n\\n II. Procedural History \\n\\n Almost immediately after the sixty‐day cure periods expired, the FHFA \\n\\ncommenced three actions against GreenPoint in New York Supreme Court, New \\n\\nYork County, “as conservator for” Freddie Mac and “on behalf of” U.S. Bank as \\n\\nTrustee. The FHFA filed summonses with notice for the GP2, GP3, and GP4 Trusts, \\n\\nrespectively, on May 30, 2012, June 29, 2012, and July 30, 2012, exactly one day \\n\\nahead of the six‐year anniversaries of the closing dates of the three Trusts. \\n\\nGreenPoint removed the actions to the United States District Court for the \\n\\nSouthern District of New York on October 24, 2012. On November 21, 2012, the \\n\\n\\n\\n\\nqualifying loans with insufficient credit score; and incorrect calculations of loan‐to‐value \\nand cumulative loan‐to‐value ratios, which, according to U.S. Bank, are allegedly “among \\nthe most important measures of the risk of a mortgage loan.” J.A. 1130–41. \\n \\n \\n \\n 10 \\n \\n \\n\\fdistrict court consolidated the three actions and authorized the plaintiffs to file a \\n\\nsingle consolidated complaint, which they did on November 26, 2012. \\n\\n The FHFA dropped out of the litigation in January 2013, and U.S. Bank—\\n\\nnow the sole plaintiff—filed an amended consolidated complaint.11 The amended \\n\\nconsolidated complaint included three causes of action related to breach of \\n\\ncontract and indemnification. GreenPoint moved to dismiss, and the district court \\n\\ndenied the motion. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. \\n\\nFunding, Inc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2014 WL 1301944 (S.D.N.Y. \\n\\nMar. 31, 2014). \\n\\n The parties commenced discovery. Although they completed that task by \\n\\nearly December 2014, U.S. Bank requested a stay of further proceedings pending \\n\\nthe New York Court of Appeals’ resolution of an appeal taken from ACE Securities \\n\\n\\n\\n GreenPoint invoked federal jurisdiction under 28 U.S.C. § 1345, which provides that \\n11\\n\\n“the district courts shall have original jurisdiction of all civil actions, suits or proceedings \\ncommenced by the United States, or by any agency or officer thereof expressly authorized \\nto sue by Act of Congress.” As the removal notices indicated, the FHFA is a federal \\nagency for the purposes of § 1345. See 12 U.S.C. § 4511(a) (“There is established the \\nFederal Housing Finance Agency, which shall be an independent agency of the Federal \\nGovernment.”). When the FHFA dropped out of the suit, however, U.S. Bank filed its \\namended consolidated complaint under diversity jurisdiction as well as 28 U.S.C. § 1345. \\n \\n \\n \\n 11 \\n \\n \\n\\fCorp. v. DB Structured Products, Inc., 112 A.D.3d 522 (1st Dep’t 2013), leave to appeal \\n\\ngranted by 23 N.Y.3d 906 (2014). Soon after the Court of Appeals issued its opinion, \\n\\nsee ACE Secs. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581 (2015) (“ACE”), U.S. \\n\\nBank moved for and was granted leave to file a second amended consolidated \\n\\ncomplaint (“SACC”). It filed that complaint, which is the focus of the present \\n\\nappeal, on March 3, 2016. \\n\\n The SACC mirrored the first amended consolidated complaint with respect \\n\\nto the first two causes of action: (1) breach of contract seeking specific \\n\\nperformance, based on GreenPoint’s failure to repurchase the noncompliant loans \\n\\nor cure its breach of the R & Ws; and (2) breach of contract seeking monetary \\n\\ndamages, based on the same allegations. The SACC expanded the third cause of \\n\\naction—indemnification based on language in the MLPAs and the Trust \\n\\nAgreements—to seek not only expenses incurred in connection with the first two \\n\\ncauses of action, but also a monetary award of $1.1 billion. Finally, the SACC \\n\\nadded a fourth cause of action for indemnification arising under the separate \\n\\nIndemnification Agreements. The fourth claim sought reimbursement for losses \\n\\n\\n\\n \\n \\n \\n 12 \\n \\n \\n\\fbased on a separate set of R & Ws that GreenPoint made when the parties executed \\n\\nthe Indemnification Agreements. \\n\\n GreenPoint moved for summary judgment on the first three claims, arguing \\n\\nthey were time‐barred. It moved for dismissal of the fourth claim under Federal \\n\\nRules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that the FHFA and U.S. \\n\\nBank lacked standing and that U.S. Bank had failed to state a claim. The district \\n\\ncourt granted the motion for summary judgment and dismissed the fourth claim \\n\\nas time‐barred. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. Funding, \\n\\nInc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *10 (S.D.N.Y. \\n\\nMar. 29, 2017). The court found that the contractual claims (claims one and two) \\n\\nwere time‐barred because the FHFA filed the summonses with notice more than \\n\\nsix years after the statute of limitations began to run under New York law. Id. at \\n\\n*7. With respect to the third claim, seeking indemnification, the court found that \\n\\nU.S. Bank’s claim was “not one for indemnification” but instead was “more \\n\\nappropriately characterized as one to recover losses incurred by breach of \\n\\ncontract.” Id. at *8. Accordingly, the court concluded that the third claim, too, was \\n\\ntime‐barred. Finally, the court held that the fourth claim, also seeking \\n \\n \\n \\n 13 \\n \\n \\n\\findemnification, was time‐barred because it involved a new set of operative facts \\n\\nand therefore could not relate back to the original complaint pursuant to Federal \\n\\nRule of Civil Procedure 15(c), even assuming the original complaint was timely \\n\\nfiled. Id. at *9. U.S. Bank appealed. \\n\\n DISCUSSION \\n\\n We review a district court’s grant of summary judgment de novo, mindful \\n\\nthat summary judgment is appropriate only “if the movant shows that there is no \\n\\ngenuine dispute as to any material fact and the movant is entitled to judgment as \\n\\na matter of law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. \\n\\nCiv. P. 56(a)). We also review de novo a district court’s grant of a motion to dismiss, \\n\\nincluding its interpretation and application of statutes of limitations and \\n\\ncontractual terms. Deutsche Bank, 810 F.3d at 865. When we sit in diversity \\n\\njurisdiction and must decide a question of New York state law, we are bound “by \\n\\nthe law of New York as interpreted by the New York Court of Appeals.” Licci ex \\n\\nrel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (per curiam). \\n\\n In ACE, 25 N.Y.3d at 596, the New York Court of Appeals held that a cause \\n\\nof action for breach of R & Ws that guarantee particular facts as of a certain date, \\n \\n \\n \\n 14 \\n \\n \\n\\fbut do not guarantee future performance, accrues on the date those R & Ws \\n\\nbecome effective. We were called upon to apply ACE in Deutsche Bank. Deutsche \\n\\nBank involved facts similar to the case now before us: a trustee, Deutsche Bank, \\n\\nsought to recover from Quicken Loans, which originated a pool of mortgage loans \\n\\nthat Deutsche Bank later discovered breached R & Ws made in the mortgage‐loan \\n\\nagreements. 810 F.3d at 863. The issue was whether the trustee’s cause of action \\n\\nfor breach of the R & Ws accrued when the R & Ws became effective (making the \\n\\nclaims untimely) or when the trustee demanded repurchase or cure and was \\n\\nrebuffed (making the claims timely). Looking to ACE, we held that the trustee’s \\n\\ncause of action accrued “[i]mmediately upon effectiveness of the R & Ws,” because \\n\\nat that point, “the Trustee was entitled to demand the contractual remedy—cure \\n\\nor repurchase—as to any material breach.” Id. at 866. We also rejected the trustee’s \\n\\nargument that the remedy clause was substantive (meaning a condition precedent \\n\\nto a party’s performance) rather than procedural (seeking a remedy for a \\n\\npreexisting wrong). Id. at 867. Because we deemed the demand process to be \\n\\n“merely procedural,” we held that it did not “delay accrual of the cause of action,” \\n\\nmaking the trustee’s claims untimely. Id. (citing ACE, 25 N.Y.3d at 597). \\n \\n \\n \\n 15 \\n \\n \\n\\f U.S. Bank argues that, notwithstanding Deutsche Bank, ACE, and the \\n\\nnumerous cases that followed,12 its causes of action for breach of contract accrued \\n\\nnot when the R & Ws became effective, but when GreenPoint was made aware of \\n\\nthe breaches and failed to cure. According to U.S. Bank, this case is distinguishable \\n\\nfrom Deutsche Bank and ACE because here, sophisticated parties negotiated for a \\n\\ncontract provision establishing that a cause of action for a breach of the R & Ws \\n\\n“shall accrue,” J.A. 166, 269, only when the Trustee made a demand for \\n\\ncompliance. U.S. Bank made no such demand until 2012. \\n\\n While this appeal was pending, the New York Court of Appeals granted \\n\\nreview in a similar case, Deutsche Bank Nat’l Tr. Co. v. Flagstar Capital Mkts. Corp., \\n\\n32 N.Y.3d 139 (2018). U.S. Bank pinned its hopes on Flagstar and urged us to await \\n\\nthe New York high court’s decision. Flagstar, U.S. Bank argued, would \\n\\n“definitively determine the validity of an express accrual clause under New York \\n\\n\\n See, e.g., U.S. Bank Nat’l Ass’n v. Dexia Real Estate Capital Mkts., 643 Fed. App’x 48 (2d \\n12\\n\\nCir. 2016) (summary order); Wells Fargo Bank, NA v. JPMorgan Chase Bank, N.A., 643 Fed. \\nApp’x 44 (2d Cir. 2016) (summary order); Homeward Residential, Inc. v. Sand Canyon Corp., \\n12 Civ. 7319, 2018 WL 557913 (S.D.N.Y. Jan. 24, 2018); U.S. Bank Nat’l Ass’n v. Bank of Am., \\nN.A., 15 Civ. 8153, 2016 WL 5118298 (S.D.N.Y. Sept. 20, 2016), appeal docketed, 16‐3560 (2d \\nCir. 2016); Bank of N.Y. Mellon v. WMC Mortg., LLC, 151 A.D.3d 72 (1st Dep’t 2017); U.S. \\nBank Nat’l Ass’n v. GreenPoint Mortg. Funding, Inc., 147 A.D.3d 79 (1st Dep’t 2016). \\n \\n \\n \\n 16 \\n \\n \\n\\flaw.” Appellant Br. 19. Flagstar did just that, but U.S. Bank’s prediction of \\n\\nvindication proved wrong. Under Flagstar, an express accrual clause cannot \\n\\noperate to delay the commencement of a limitations period under New York law, \\n\\nregardless of the parties’ sophistication or clearly expressed intentions. See \\n\\nFlagstar, 32 N.Y.3d at 139. In other words, Flagstar clarified the sole issue that U.S. \\n\\nBank asked us to resolve: namely, whether sophisticated parties could create a \\n\\nsubstantive condition precedent by including an express accrual clause that would \\n\\ndelay the running of the statute of limitations. See id. The New York Court of \\n\\nAppeals answered that question in the negative. The rules from ACE and Deutsche \\n\\nBank therefore govern U.S. Bank’s contractual claims here. \\n\\n I. Causes of Action One and Two: Breach of Contract \\n\\n The statute of limitations on a breach of contract claim in New York is six \\n\\nyears, and this period begins to run when a breach occurs. See N.Y. C.P.L.R. \\n\\n§§ 203(a), 213(2); Deutsche Bank, 810 F.3d at 865 (citing Ely‐Cruikshank Co. v. Bank of \\n\\nMontreal, 81 N.Y.2d 399, 402 (1993)). As we explained in Deutsche Bank on facts \\n\\nindistinguishable from those now before us, “the statute of limitations began to \\n\\n\\n\\n \\n \\n \\n 17 \\n \\n \\n\\frun on the date the R & Ws became effective and were either true or false at that \\n\\ntime.” 810 F.3d at 867. \\n\\n The undisputed facts are that the effective dates of the R & Ws were May 15, \\n\\n2006 (GP2); June 15, 2006 (GP3);13 and July 17, 2006 (GP4). The FHFA filed in state \\n\\ncourt on May 30, 2012 (GP2); June 29, 2012 (GP3); and July 30, 2012 (GP4). As the \\n\\ndistrict court correctly concluded, “[e]ach of these actions was filed over six years \\n\\nafter the statute of limitations on the breach of contract actions began running.” \\n\\nLehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *7. \\n\\nThe first two causes of action were therefore untimely under settled New York \\n\\nlaw. The district court properly granted summary judgment to GreenPoint. \\n\\nII. Cause of Action Three: Indemnification Under Section 9 of the MLPAs \\n\\n When an aggrieved party recovers not from a wrongdoer but from a third \\n\\nparty, the third party’s subsequent claim against the wrongdoer becomes one for \\n\\n\\n\\n The district court’s reasoned opinion includes a scrivener’s error in its recitation of the \\n13\\n\\neffective dates of the R & Ws. See Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \\n2017 WL 1293773, at *7 (indicating that the last sale date for the GP3 Trust was “June 15, \\n2008”). It is clear, however, from the rest of the opinion, the complaint, the parties’ \\nsubmissions to the district court, and the parties’ papers on appeal that the final date of \\nsale for loans in the GP3 Trust was June 15, 2006. \\n \\n \\n \\n 18 \\n \\n \\n\\findemnification. See Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 200 (2d Cir. \\n\\n2003) (applying New York law) (quoting Hooper Assocs., Ltd. v. AGS Computs., Inc., \\n\\n74 N.Y.2d 487, 492–93 (1989)); see also Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 \\n\\n(1990) (indemnification arises when “a party held legally liable to plaintiff shifts \\n\\nthe entire loss to another”). \\n\\n Thus, under New York law, absent “unmistakably clear” language in an \\n\\nindemnification provision that demonstrates that the parties intended the clause \\n\\nto cover first‐party claims, an agreement between two parties “to indemnify” each \\n\\nother does not mean that one party’s failure to perform gives rise to a claim for \\n\\nindemnification. Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, \\n\\n21 (2d Cir. 1996); see also BNP Paribas Mortg. Corp. v. Bank of Am., N.A., 778 F. Supp. \\n\\n2d 375, 415 (S.D.N.Y. 2011) (“Unless the indemnification clause refers exclusively \\n\\nor unequivocally to claims between the indemnitor and indemnitee, the court \\n\\nmust find the agreement to be lacking evidence of the required intent to cover such \\n\\nclaims.” (internal quotation marks omitted)). Consequently, absent such language, \\n\\n“[w]here parties agree to ‘indemnify’ each other for losses incurred by a breach of \\n\\ncontract, where those lo[s]ses do not relate to liability to a third party, the \\n \\n \\n \\n 19 \\n \\n \\n\\fcharacterization of ‘indemnification’ is no more than an epithet for recovery for \\n\\nbreach of contract.” Xerox State & Local Sols., Inc. v. Xchanging Sols. (USA), Inc., 216 \\n\\nF. Supp. 3d 355, 364 (S.D.N.Y. 2016). Put simply, “[a]n action does not become \\n\\n[one] for indemnity merely because the pleader has so denominated it.” Peoples’ \\n\\nDemocratic Rep. of Yemen v. Goodpasture, Inc., 782 F.2d 346, 350 (2d Cir. 1986) \\n\\n(quoting Bunker v. Bunker, 80 A.D.2d 817, 817 (1st Dep’t 1981)) (internal quotation \\n\\nmarks omitted). \\n\\n Here, the distinction between a claim for breach of contract and one for \\n\\nindemnification is relevant in determining the timeliness of U.S. Bank’s third \\n\\nclaim. Under New York law, a cause of action for contractual indemnification \\n\\n“does not arise until liability is incurred by way of actual payment” to a third \\n\\nparty. Varo, Inc. v. Alvis PLC, 261 A.D.2d 262, 265 (1st Dep’t 1999) (internal \\n\\nquotation marks omitted); see also McDermott v. City of New York, 50 N.Y.2d 211, \\n\\n216 (1980). Therefore, if U.S. Bank is correct that it has a cause of action for \\n\\nindemnification, the third claim in the SACC was timely. If, however, U.S. Bank’s \\n\\nindemnification claim is merely a reformulation of its breach‐of‐contract claims, \\n\\n\\n\\n \\n \\n \\n 20 \\n \\n \\n\\fthe third cause of action was untimely for the same reasons as the first two causes \\n\\nof action. \\n\\n According to U.S. Bank, GreenPoint should pay for breaching the promises \\n\\nit made in the MLPAs concerning the quality of the mortgages it sold. This claim, \\n\\nU.S. Bank insists, is not the same as its breach of contract claims because “the \\n\\nparties here bargained for two separate remedies contained in two separate \\n\\nsections of the MLPAs.” Appellant Br. 28. U.S. Bank contends the third claim is \\n\\n“independent” because the indemnification provisions found in Section 9 of the \\n\\nMLPAs allow it to “pursue any and all remedies otherwise available at law or in \\n\\nequity, including, but not limited to, the right to seek damages,” J.A. 168, 270, in \\n\\naddition to the repurchase provision found in Section 8. As counsel explained at \\n\\noral argument, U.S. Bank is seeking “damages that relate to the \\n\\nmisrepresentations, so that unlike the initial claim[s], there’s an additional element \\n\\nof proof that has to be established.” Oral Arg. at 2:10–3:30. \\n\\n Had U.S. Bank paid a certificate holder for harms to the certificate holder \\n\\nstemming from GreenPoint’s breach, its claim against Greenpoint would be for \\n\\nindemnity. But the claim here seeks payment to U.S. Bank arising from \\n \\n \\n \\n 21 \\n \\n \\n\\fGreenPoint’s violations of the R & Ws that it made to U.S. Bank as Trustee. It is a \\n\\nbreach of contract claim, plain and simple. \\n\\n We reach this conclusion for two reasons. First, Section 9 of the MLPAs does \\n\\nnot “unequivocally” or in “unmistakably clear” language extend to first‐party \\n\\nclaims. See J.A. at 167–68, 270 (“[GreenPoint] agrees to indemnify [U.S. Bank] and \\n\\nhold it harmless from and against any and all claims, losses, damages, penalties, \\n\\nfines, forfeitures, legal fees and related costs, judgments, and any other costs, fees \\n\\nand expenses that [U.S. Bank] may sustain . . . [and GreenPoint] shall immediately \\n\\nnotify [U.S. Bank] if a claim is made by a third party with respect to this Agreement \\n\\nor the Mortgage Loans.”). In the absence of such language, the provision must be \\n\\nread to contemplate an actual indemnification scenario, in which U.S. Bank would \\n\\nbe entitled to repayment if it paid out costs to a third party. U.S. Bank does not \\n\\nallege that to date it has paid on claims to third parties directly tied to GreenPoint’s \\n\\nbreaches of its R & Ws. \\n\\n Second, the allegations in the SACC belie the argument that U.S. Bank is \\n\\nseeking to recover something different under its indemnification claim than what \\n\\nit seeks under the breach of contract claims. See J.A. at 1148–50, ¶ 99 (“To date, the \\n \\n \\n \\n 22 \\n \\n \\n\\fTrusts have sustained approximately $1.1 billion in aggregate collateral‐level \\n\\nlosses and damages as a result of GreenPoint’s breaches of its R & Ws and failure to \\n\\nrepurchase breaching Mortgage Loans.” (emphasis added)). The argument that \\n\\nSection 9 provides an “independent” remedy is, therefore, meritless: the \\n\\nindemnification claim cannot be “independent” if its success directly depends on \\n\\nthe breaches of the R & Ws in the MLPAs outlined in the contract claims. As the \\n\\nNew York Court of Appeals explained in ACE, even if two sections of the contract \\n\\nprovide alternative remedies for the same breach, “the underlying act the Trust \\n\\ncomplains of is the same: the quality of the loans and their conformity with the \\n\\n[R & Ws].” 25 N.Y.3d at 596. \\n\\n Thus, U.S. Bank’s “indemnification” claim is in reality a repackaged version \\n\\nof its breach of contract claims. See Goodpasture, 782 F.2d at 350. There is no \\n\\n“indemnified” party who covered a loss that should have been paid by a third‐\\n\\nparty obligor. There is thus no “independent” claim for indemnification. U.S. Bank \\n\\ncannot circumvent the statute of limitations by recasting its contract claim as one \\n\\n\\n\\n\\n \\n \\n \\n 23 \\n \\n \\n\\ffor indemnification. The district court properly dismissed the third claim as \\n\\nuntimely.14 \\n\\nIII. Cause of Action Four: Breach of the Indemnification Agreements \\n\\n In its fourth claim, raised for the first time in the SACC filed on March 3, \\n\\n2016, U.S. Bank alleges breaches of the Indemnification Agreements. These three \\n\\nagreements (separate and distinct from the indemnification clauses in the MLPAs) \\n\\nare documents the parties signed immediately before they closed on the MLPAs. \\n\\nIn them, GreenPoint independently represented that it had complied with the \\n\\nR & Ws it made in the MLPAs. All three agreements contain the same statement: \\n\\n“GreenPoint hereby represents and warrants, as of the date of the Prospectus \\n\\nSupplement, that the GreenPoint Information is true and correct in all material \\n\\n\\n\\n\\n GreenPoint also argues that this claim should be dismissed under Federal Rule of Civil \\n14\\n\\nProcedure 12(b)(1) because the FHFA did not have standing to file the summonses with \\nnotice in the first instance. U.S. Bank may not, GreenPoint argues, be substituted as the \\nreal party in interest under Federal Rule of Civil Procedure 17(a) because there was no \\n“honest mistake” in the initial naming of the plaintiff. In a letter brief it submitted to this \\nCourt pursuant to Federal Rule of Appellate Procedure 28(j), U.S. Bank directs our \\nattention to a recent opinion from this Court holding that “a plaintiff’s honest mistake is \\nnot a precondition for granting a Rule 17(a)(3) motion.” Klein ex rel. Qlik Techs., Inc. v. Qlik \\nTechs., Inc., 906 F.3d 215, 227 (2d Cir. 2018). Because we agree with the district court that \\nU.S. Bank’s claim was untimely on a different basis, we decline to address this argument. \\n \\n \\n \\n 24 \\n \\n \\n\\frespects and includes all ‘Seller Information’ as defined in the [MLPAs].” J.A. 1063 \\n\\n(GP2), 1072 (GP3), 1081 (GP4). \\n\\n According to U.S. Bank, under Federal Rule of Civil Procedure 15(c), its \\n\\nclaim for breach of the Indemnification Agreements relates back to the filing dates \\n\\nof the state court summonses with notice, therefore rendering the claim timely, at \\n\\nleast as to the GP2 and GP4 Trusts.15 We disagree. \\n\\n Rule 15(c) provides that an amendment to a pleading “relates back to the \\n\\ndate of the original pleading” where, as relevant here, “the amendment asserts a \\n\\nclaim or defense that arose out of the conduct, transaction, or occurrence set out—\\n\\nor attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). \\n\\n\\n\\n\\n15 The FHFA filed its summons with notice for the GP2 Trust on May 30, 2012, exactly six \\nyears after May 30, 2006, the date that the GP2 Indemnification Agreement was executed. \\nTherefore, if U.S. Bank’s claim were to relate back to this date, it would be timely. \\nSimilarly, the GP4 Indemnification Agreement was executed on July 28, 2006, and six \\nyears from that date was July 28, 2012, a Saturday. The time to file therefore fell on “the \\nnext succeeding business day”—Monday, July 30, 2012. See N.Y. Gen. Constr. § 25‐a(1); \\nFed. R. Civ. P. 6(a)(1). This is precisely the day that the FHFA filed its summons with \\nnotice, and, consequently, if U.S. Bank’s claim were to relate back to this date, it would \\nbe timely as well. U.S. Bank’s claim as to the GP3 Trust, however, is untimely even under \\nits “relation‐back” theory, because the GP3 Indemnification Agreement was executed on \\nJune 28, 2006, and the FHFA filed its summons with notice on June 29, 2012, one day after \\nthe statute of limitations had run. \\n \\n \\n \\n 25 \\n \\n \\n\\fThe purpose of Rule 15(c)’s relation‐back provision is “to balance the interests of \\n\\nthe defendant protected by the statute of limitations with the preference expressed \\n\\nin the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for \\n\\nresolving disputes on their merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, \\n\\n550 (2010). “[T]he central inquiry is whether adequate notice of the matters raised \\n\\nin the amended pleading has been given to the opposing party within the statute \\n\\nof limitations by the general fact situation alleged in the original pleading.” Slayton \\n\\nv. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (internal quotation marks \\n\\nomitted). \\n\\n Thus, “even where an amended complaint tracks the legal theory of the first \\n\\ncomplaint, claims that are based on an entirely distinct set of factual allegations \\n\\nwill not relate back.” Id. (internal quotation marks omitted). This includes claims \\n\\nthat are based on different contracts.16 \\n\\n\\n\\n See, e.g., 6A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure \\n16\\n\\n§ 1497 (3d ed. 2018) (“[A]mendments alleging . . . the breach of an independent \\ncontract . . . may be subject to the defense of statute of limitations because of a failure to \\nmeet the transaction standard.”); see also Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d \\n992, 994 (8th Cir. 1989); In re Rationis Enters., Inc. of Panama, 45 F. Supp. 2d 365, 367 \\n(S.D.N.Y. 1999). \\n \\n \\n \\n 26 \\n \\n \\n\\f The SACC’s allegations of breaches of the GP2 and GP4 Indemnification \\n\\nAgreements do not relate back to the filing date of the FHFA’s original pleading \\n\\nin New York Supreme Court. The original summonses with notice involved \\n\\nactions for breach of contract and declaratory relief (GP2) and breach of contract, \\n\\ndeclaratory relief, specific performance, and indemnification (GP3 and GP4) under \\n\\nthe provisions of the MLPAs. J.A. 23 (GP2), 38 (GP3), 53 (GP4). The focus of the \\n\\nsummonses was GreenPoint’s contractual obligation “to cure or repurchase from \\n\\nthe Trust[s] those mortgage loans where R & Ws have been breached.” Id. 24, 39, \\n\\n54. The summonses, in other words, contained no mention of the Indemnification \\n\\nAgreements, and sought recovery only for breaches of the R & Ws in the MLPAs, \\n\\nwhich governed the initial sale of the mortgage loans from GreenPoint to Lehman. \\n\\nAlthough the underlying R & Ws in the MLPAs and the Indemnification \\n\\nAgreements employ the same terms, we cannot conclude that GreenPoint was on \\n\\nnotice when the FHFA filed the original complaint that the litigation would also \\n\\ninvolve the Indemnification Agreements. Indeed, the FHFA had no reason to \\n\\ninclude any claims related to the Indemnification Agreements, in which it had no \\n\\ninterest and to which it was never a signatory. Those documents were intended to \\n \\n \\n \\n 27 \\n \\n \\n\\foutline the scope of GreenPoint’s obligation to indemnify Lehman and its \\n\\nsuccessors for claims brought against Lehman by third parties—not to protect \\n\\ncertificate holders (like the FHFA) from the sale of unsound securitized mortgage \\n\\nloans. \\n\\n Simply put, the original complaint and the SACC invoke separate contracts; \\n\\nthe signatories to the Indemnification Agreements and the MLPAs are different; \\n\\nand the nature of the claims and the remedies they seek are not the same. See \\n\\nASARCO LLC v. Goodwin, 756 F.3d 191, 202–03 (2d Cir. 2014); 6A Charles Alan \\n\\nWright & Arthur R. Miller, Federal Practice & Procedure § 1497 (3d ed. 2018) \\n\\n(collecting cases); see also Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \\n\\n2017 WL 1293773, at *9 (“[I]t cannot be said that based on the facts alleged in the \\n\\noriginal pleading, GreenPoint was given adequate notice that Plaintiff would \\n\\nbring claims pursuant to the Indemnification Agreements.”). The fourth cause of \\n\\naction does not relate back to the original filing for claims based on any of the \\n\\nTrusts, and that cause of action was therefore untimely asserted. \\n\\n\\n\\n\\n \\n \\n \\n 28 \\n \\n \\n\\f CONCLUSION \\n\\n The district court properly dismissed U.S. Bank’s claims as untimely. For the \\n\\nforegoing reasons, the judgment of the district court granting GreenPoint’s \\n\\nmotions for summary judgment and to dismiss is AFFIRMED.\\n\\n\\n\\n\\n \\n \\n \\n 29\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4364982/\", \"author_raw\": \"WESLEY, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WESLEY"},"judge2":{"kind":"string","value":"CHIN"},"judge3":{"kind":"string","value":"CARNEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4587729/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: LEHMAN XS TRUST, SERIES 2006-GP2, (LXS 2006-GP2), BY U.S. BANK NATIONAL ASSOCIATION, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP3, (LXS 2006-GP3), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP4, (LXS 2006-GP4), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Plaintiffs-Appellants, v. GREENPOINT MORTGAGE FUNDING, INC., Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐1290 \nLehman XS Trust v. Greenpoint Mortgage Funding, Inc. \n\n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n ______________ \n \n August Term 2017 \n \n (Argued: April 17, 2018 Decided: February 6, 2019) \n \n Docket 17‐1290 \n \n LEHMAN XS TRUST, SERIES 2006‐GP2, (LXS 2006‐GP2), by U.S. BANK \n NATIONAL ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS \n TRUST, SERIES 2006‐GP3, (LXS 2006‐GP3), by U.S. BANK NATIONAL \n ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS TRUST, SERIES \n 2006‐GP4, (LXS 2006‐GP4), by U.S. BANK NATIONAL ASSOCIATION, solely in \n its capacity as Trustee, \n \n Plaintiffs‐Appellants, \n \n v. \n \n GREENPOINT MORTGAGE FUNDING, INC., \n \n Defendant‐Appellee.* \n ______________ \n \nBefore: \n WESLEY, CHIN, AND CARNEY, Circuit Judges. \n \n Plaintiff U.S. Bank National Association (“U.S. Bank”) appeals from a \njudgment entered in the United States District Court for the Southern District of \nNew York (Carter, J.) dismissing its second amended consolidated complaint as \nuntimely. U.S. Bank argues, among other things, that the district court erred in \n\n The Clerk of the Court is respectfully directed to amend the official caption as noted \n*\n\nabove. \n\fdismissing its complaint because (1) its claim for indemnification under the \ncontract in dispute is independent of its claim for breach of that contract, and the \nformer claim therefore was timely filed in federal court; and (2) its claim for \nindemnification based on separate contracts executed at a later date relates back \nto the original state‐court filing under Federal Rule of Civil Procedure 15(c). We \ndisagree. AFFIRMED. \n _________________ \n\n HECTOR TORRES (David J. Abrams, David J. Mark, on the brief), \n Kasowitz Benson Torres LLP, New York, NY, for Plaintiffs‐\n Appellants. \n\n THEODORE R. SNYDER (James A. Murphy, New York, NY; \n Cameron S. Matheson, Glen Allen, VA, on the brief), Murphy & \n McGonigle, P.C., for Defendant‐Appellee. \n\n _________________ \n\nWESLEY, Circuit Judge: \n\n This appeal is the most recent chapter in the ongoing saga of the last \n\ndecade’s housing finance crisis. At the core of the appeal are three trusts (the \n\n“Trusts”) composed of residential mortgage‐backed securities that Defendant‐\n\nAppellee GreenPoint Mortgage Funding, Inc. (“GreenPoint”) sold in 2006 to \n\nLehman Brothers Holding, Inc., and Lehman Brothers Bank, FSB (collectively, \n\n“Lehman”), with Plaintiff‐Appellant U.S. Bank acting as Trustee. Six years after \n\nthe sale, in 2012, a forensic review of the Trusts revealed that nearly all of the \n\n\n \n \n \n 2 \n \n \n\fsample mortgages GreenPoint sold to Lehman were in breach of the \n\nrepresentations and warranties (“R & Ws”) GreenPoint made in its Flow Mortgage \n\nLoan Purchase and Warranties Agreements (“MLPAs”) with Lehman. \n\n GreenPoint failed to cure or repurchase the loans within the contractual time \n\nframes. As a result, the Federal Housing Finance Agency (“FHFA”)—acting on \n\nbehalf of U.S. Bank as Trustee and as conservator for the Federal Home Loan \n\nMortgage Corporation (“Freddie Mac”),1 which in turn was the beneficial owner \n\nof some of the certificates issued by the Trusts—filed summonses with notice in \n\nNew York Supreme Court.2 \n\n GreenPoint removed the actions to federal court, at which point the FHFA \n\ndropped out of the litigation and U.S. Bank as Trustee filed an amended and \n\n\n\n\n On September 6, 2008, Freddie Mac was placed into conservatorship by the FHFA \n1\n\npursuant to 12 U.S.C. § 4617.\n2 In the New York courts, a plaintiff commences an action “by filing a summons and \ncomplaint or summons with notice.” N.Y. C.P.L.R. § 304(a). A party may elect to file a \nsummons with notice if the party is not prepared to serve the complaint; in that case, the \nsummons must put the defendant on notice of “the nature of the action and the relief \nsought,” as well as “the sum of money for which judgment may be taken in case of \ndefault.” Id. § 305(b). \n \n \n \n 3 \n \n \n\fconsolidated complaint.3 After discovery and the filing of a second amended \n\nconsolidated complaint, GreenPoint moved for summary judgment as to three \n\ncounts of this complaint, and to dismiss as to the fourth count, arguing, among \n\nother things, that the claims were barred by New York’s statute of limitations. \n\n The district court concluded, for various reasons discussed in this opinion, \n\nthat none of U.S. Bank’s claims was timely. The issue before this Court is whether \n\nany of U.S Bank’s claims survive GreenPoint’s motions for summary judgment \n\nand dismissal. We affirm the district court’s conclusion that none does. \n\n BACKGROUND \n\n I. Factual Background \n\n In 2006, Lehman, not a party to this appeal, purchased aggregated pools of \n\nresidential home mortgages from GreenPoint.4 The sales were governed by two \n\n\n\n3 The FHFA ceased prosecuting its claims in this case because of a “no action” clause \ncontained in the Trust Agreements. A “no action” clause bars “individual certificate \nholders from bringing independent law suits which are more effectively brought by the \ntrustee unless certain exceptions are met.” Deutsche Bank Nat’l Tr. Co. v. Quicken Loans Inc., \n810 F.3d 861, 868 n.8 (2d Cir. 2015) (cleaned up) (internal quotation marks omitted) \n(“Deutsche Bank”). \n4 In 2006, before Lehman began bankruptcy proceedings, U.S. Bank entered into \nagreements to serve as Trustee of the Trusts at issue in this case. \n \n \n \n 4 \n \n \n\fMLPAs, each of which contained a series of R & Ws as to the quality of the \n\nmortgage loans.5 When Lehman purchased the loans from GreenPoint in 2006, \n\nthey had an aggregate principal balance exceeding $3.39 billion. \n\n Lehman conveyed the mortgage loans and its rights under the MLPAs to a \n\ndepositor (also not a party to this appeal), which then conveyed the mortgage \n\nloans to three Trusts—GP2, GP3, and GP4—via another set of contracts \n\ndenominated “Trust Agreements.”6 The last dates on which Lehman purchased \n\nmortgage loans from GreenPoint (i.e., the effective dates of the R & Ws) were May \n\n15, 2006 (GP2), June 15, 2006 (GP3), and July 17, 2006 (GP4). The Trusts closed on \n\n\n5 Although the MLPAs at issue are separate contracts, the language relevant to the issues \non appeal is identical in the two documents, and U.S. Bank treats the documents as one \nin its brief to this Court. The first MLPA was signed between Lehman Brothers Bank, FSB \nand GreenPoint in 2001; the second MLPA was signed between Lehman Brothers \nHoldings, Inc. and GreenPoint in 2006. \n6 The “depositor” here was a third‐party entity called Structured Asset Securities \nCorporation (“SASC”). SASC’s role was to create the three Trusts and, “[c]oncurrently \nwith the execution” of the Trust Agreements, to “transfer, assign, set over, deposit with \nand otherwise convey to the Trustee, without recourse . . . all the right, title and interest \nof the Depositor in and to the Mortgage Loans.” J.A. 387, § 2.01(a). In other words, the \ndepositor’s role was to create the Trusts. In the same moment that the parties closed on \nthe MLPAs, SASC acquired an interest in the Trust’s assets, placed the assets in the Trusts, \nand transferred the Trusts to the Trustee (U.S. Bank). The signatories to the Trust \nAgreements were SASC as depositor; U.S. Bank as Trustee; Aurora Loan Services LLC as \nmaster servicer (a role not relevant to this appeal); and Lehman as underwriter. \n \n \n \n 5 \n \n \n\fthe MLPAs on May 31, 2006 (GP2), June 30, 2006 (GP3), and July 31, 2006 (GP4). \n\nOnce the mortgage loans were deposited into the Trusts, they were securitized and \n\ncertificates were issued representing rights to cash flows from the securitized loan \n\nportfolios. Investors then purchased the certificates, thereby acquiring an \n\nownership interest in the Trusts. Freddie Mac was one of these investors.7 \n\n The R & Ws contained in the MLPAs and the Trust Agreements made \n\nassertions about the quality of individual mortgage loans and the mortgage loan \n\npools. Specifically, Section 7 of the MLPAs represented that the mortgage loans \n\nwere “underwritten in accordance with [GreenPoint’s] Underwriting Guidelines,” \n\nJ.A. 160, 261; that the mortgage loan schedules were “complete, true and correct,” \n\nid. 154, 255; that GreenPoint possessed complete mortgage files, id. 161, 262; and \n\nthat, except as specifically scheduled, the loan‐to‐value ratio for the mortgage \n\nloans did not exceed 80%, id. 158, 259. The MLPAs provided that GreenPoint made \n\n\n7 Freddie Mac was the beneficial owner of certificates in a single class issued by each of \nthe Trusts. It did not, however, own more than 25% of “each Class affected thereby” the \nalleged default, a condition the contractual no action clause required for a certificate \nholder to commence litigation. Although we note that GreenPoint appears to be correct \nthat the FHFA (acting as conservator for Freddie Mac) did not satisfy this condition, we \nexpress no judgment on GreenPoint’s merits argument that the FHFA lacked standing to \nbring suit because of the no action clause. \n \n \n \n 6 \n \n \n\fthese R & Ws “as of” each closing date. Section 2.03 of the Trust Agreements \n\nincorporated the R & Ws from the MLPAs. \n\n In an effort to ensure compliance with the R & Ws, the MLPAs and the Trust \n\nAgreements created a contractual remedy in the event that GreenPoint breached. \n\nUnder Section 8 of the MLPAs, upon learning of a breach, GreenPoint had sixty \n\ndays to “use its best efforts promptly to cure such [b]reach in all material respects.” \n\nId. 165, 268. If the breach could not be cured, Section 8 of the MLPAs provided that \n\nGreenPoint “shall, at the Purchaser’s option, repurchase such Mortgage Loan” at \n\nan established repurchase price. Id. The Trust Agreements included an identical \n\nclause, except they gave GreenPoint ninety days from the discovery of the breach \n\nto cure or repurchase. The same section of the MLPAs contained an Accrual \n\nProvision that established how the parties would proceed in the event of a breach.8 \n\n\n\n\n8 The Accrual Provision states: \n Any cause of action against [GreenPoint] relating to or arising out of the \n Breach of any [R & Ws] . . . shall accrue as to any Mortgage Loan upon \n (i) discovery of such Breach by the Purchaser or notice thereof by \n [GreenPoint] to the Purchaser, (ii) failures by [GreenPoint] to cure such \n Breach or repurchase such Mortgage Loan as specified above, and \n \n \n \n 7 \n \n \n\f Section 9 of the MLPAs also contained an indemnification clause, which \n\nreads, in relevant part: \n\n [GreenPoint] agrees to indemnify [Lehman] and hold it harmless \n from and against any and all claims, losses, damages, penalties, fines, \n forfeitures, legal fees and related costs, judgments, and any other \n costs, fees and expenses that [Lehman] may sustain in any way \n related to (i) any act or omission on the part of [GreenPoint] or any \n other person or entity in the origination, receiving, processing, \n funding or servicing any Mortgage Loan prior to the related Transfer \n Date or otherwise arising from the transfer of servicing of the \n Mortgage Loans provided for in this Agreement, [and] (ii) any \n assertion based on, grounded upon [or] resulting from a Breach of any \n of [GreenPoint’s R & Ws] contained herein . . . . [GreenPoint] shall \n immediately notify [Lehman] if a claim is made by a third party with \n respect to this Agreement or the Mortgage Loans . . . \n \nJ.A. 167, 270. \n \n In addition to the indemnification provisions included in the MLPAs, \n\nGreenPoint (together with Lehman and SASC) entered into separate \n\nIndemnification Agreements for each Trust. The agreements provided that \n\nGreenPoint would “indemnify and hold harmless” the other parties to the MLPAs \n\n\n\n\n (iii) demand upon [GreenPoint] by the Purchaser for compliance with this \n Agreement. \nJ.A. 166, 269. \n \n \n \n 8 \n \n \n\fand Trust Agreements “from and against any and all losses, claims, liabilities, \n\ndamages, penalties, fines, forfeitures, legal fees and expenses and related costs, \n\njudgments, and any other costs, fees and expenses” that “arise out of or are based \n\nupon any untrue statement or alleged untrue statement of any material fact” or \n\nthe omission of any such fact in the information GreenPoint provided to Lehman. \n\nId. 1062, 1071, 1080. The relevant “as of” dates for the Indemnification Agreements \n\nwere May 30, 2006 (GP2); June 28, 2006 (GP3); and July 28, 2006 (GP4). \n\n In 2012, Freddie Mac conducted a forensic review of the loan files9 and \n\ndetermined that an overwhelming percentage of the mortgage loans in the Trusts \n\nbreached GreenPoint’s R & Ws under the MLPAs and Trust Agreements.10 U.S. \n\n\n9 The operative complaint discusses the forensic review in the passive voice, making it \nimpossible for us to determine from the complaint alone who initiated the review in 2012 \nand why. See, e.g., J.A. 1129 ¶ 41 (“Forensic reviews were undertaken . . . .“). However, \nU.S. Bank’s brief to this Court explains that Freddie Mac—not U.S. Bank—conducted the \nreview, presumably after it and other certificate holders suffered major losses on their \ninvestments because of high rates of default. Appellant Br. 9. \n U.S. Bank alleges that this analysis showed that 93.5% of the sampled loans in the GP2 \n10\n\nTrust were in breach, 99.8% of the sampled loans in the GP3 Trust were in breach, and \n100% of the sampled loans in the GP4 Trust were in breach. The breaches included \nmisrepresentations of borrower income, leading to a higher debt‐to‐income ratio than \nGreenPoint’s guidelines permitted; misrepresentations of occupancy status of homes to \nwhich the mortgage loans related, decreasing the value of the mortgage loans; improper \ncalculations of debt and debt‐to‐income ratios; failure to verify borrower assets or \n \n \n \n 9 \n \n \n\fBank submitted breach notices to GreenPoint on the following dates: March 19, \n\n2012, and August 24, 2012, for the GP2 Trust; March 19, 2012, for the GP3 Trust; \n\nand April 17, 2012, for the GP4 Trust. GreenPoint did not cure or repurchase within \n\nthe sixty‐ or ninety‐day periods established in the MLPAs and Trust Agreements, \n\nrespectively. \n\n II. Procedural History \n\n Almost immediately after the sixty‐day cure periods expired, the FHFA \n\ncommenced three actions against GreenPoint in New York Supreme Court, New \n\nYork County, “as conservator for” Freddie Mac and “on behalf of” U.S. Bank as \n\nTrustee. The FHFA filed summonses with notice for the GP2, GP3, and GP4 Trusts, \n\nrespectively, on May 30, 2012, June 29, 2012, and July 30, 2012, exactly one day \n\nahead of the six‐year anniversaries of the closing dates of the three Trusts. \n\nGreenPoint removed the actions to the United States District Court for the \n\nSouthern District of New York on October 24, 2012. On November 21, 2012, the \n\n\n\n\nqualifying loans with insufficient credit score; and incorrect calculations of loan‐to‐value \nand cumulative loan‐to‐value ratios, which, according to U.S. Bank, are allegedly “among \nthe most important measures of the risk of a mortgage loan.” J.A. 1130–41. \n \n \n \n 10 \n \n \n\fdistrict court consolidated the three actions and authorized the plaintiffs to file a \n\nsingle consolidated complaint, which they did on November 26, 2012. \n\n The FHFA dropped out of the litigation in January 2013, and U.S. Bank—\n\nnow the sole plaintiff—filed an amended consolidated complaint.11 The amended \n\nconsolidated complaint included three causes of action related to breach of \n\ncontract and indemnification. GreenPoint moved to dismiss, and the district court \n\ndenied the motion. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. \n\nFunding, Inc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2014 WL 1301944 (S.D.N.Y. \n\nMar. 31, 2014). \n\n The parties commenced discovery. Although they completed that task by \n\nearly December 2014, U.S. Bank requested a stay of further proceedings pending \n\nthe New York Court of Appeals’ resolution of an appeal taken from ACE Securities \n\n\n\n GreenPoint invoked federal jurisdiction under 28 U.S.C. § 1345, which provides that \n11\n\n“the district courts shall have original jurisdiction of all civil actions, suits or proceedings \ncommenced by the United States, or by any agency or officer thereof expressly authorized \nto sue by Act of Congress.” As the removal notices indicated, the FHFA is a federal \nagency for the purposes of § 1345. See 12 U.S.C. § 4511(a) (“There is established the \nFederal Housing Finance Agency, which shall be an independent agency of the Federal \nGovernment.”). When the FHFA dropped out of the suit, however, U.S. Bank filed its \namended consolidated complaint under diversity jurisdiction as well as 28 U.S.C. § 1345. \n \n \n \n 11 \n \n \n\fCorp. v. DB Structured Products, Inc., 112 A.D.3d 522 (1st Dep’t 2013), leave to appeal \n\ngranted by 23 N.Y.3d 906 (2014). Soon after the Court of Appeals issued its opinion, \n\nsee ACE Secs. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581 (2015) (“ACE”), U.S. \n\nBank moved for and was granted leave to file a second amended consolidated \n\ncomplaint (“SACC”). It filed that complaint, which is the focus of the present \n\nappeal, on March 3, 2016. \n\n The SACC mirrored the first amended consolidated complaint with respect \n\nto the first two causes of action: (1) breach of contract seeking specific \n\nperformance, based on GreenPoint’s failure to repurchase the noncompliant loans \n\nor cure its breach of the R & Ws; and (2) breach of contract seeking monetary \n\ndamages, based on the same allegations. The SACC expanded the third cause of \n\naction—indemnification based on language in the MLPAs and the Trust \n\nAgreements—to seek not only expenses incurred in connection with the first two \n\ncauses of action, but also a monetary award of $1.1 billion. Finally, the SACC \n\nadded a fourth cause of action for indemnification arising under the separate \n\nIndemnification Agreements. The fourth claim sought reimbursement for losses \n\n\n\n \n \n \n 12 \n \n \n\fbased on a separate set of R & Ws that GreenPoint made when the parties executed \n\nthe Indemnification Agreements. \n\n GreenPoint moved for summary judgment on the first three claims, arguing \n\nthey were time‐barred. It moved for dismissal of the fourth claim under Federal \n\nRules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that the FHFA and U.S. \n\nBank lacked standing and that U.S. Bank had failed to state a claim. The district \n\ncourt granted the motion for summary judgment and dismissed the fourth claim \n\nas time‐barred. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. Funding, \n\nInc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *10 (S.D.N.Y. \n\nMar. 29, 2017). The court found that the contractual claims (claims one and two) \n\nwere time‐barred because the FHFA filed the summonses with notice more than \n\nsix years after the statute of limitations began to run under New York law. Id. at \n\n*7. With respect to the third claim, seeking indemnification, the court found that \n\nU.S. Bank’s claim was “not one for indemnification” but instead was “more \n\nappropriately characterized as one to recover losses incurred by breach of \n\ncontract.” Id. at *8. Accordingly, the court concluded that the third claim, too, was \n\ntime‐barred. Finally, the court held that the fourth claim, also seeking \n \n \n \n 13 \n \n \n\findemnification, was time‐barred because it involved a new set of operative facts \n\nand therefore could not relate back to the original complaint pursuant to Federal \n\nRule of Civil Procedure 15(c), even assuming the original complaint was timely \n\nfiled. Id. at *9. U.S. Bank appealed. \n\n DISCUSSION \n\n We review a district court’s grant of summary judgment de novo, mindful \n\nthat summary judgment is appropriate only “if the movant shows that there is no \n\ngenuine dispute as to any material fact and the movant is entitled to judgment as \n\na matter of law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. \n\nCiv. P. 56(a)). We also review de novo a district court’s grant of a motion to dismiss, \n\nincluding its interpretation and application of statutes of limitations and \n\ncontractual terms. Deutsche Bank, 810 F.3d at 865. When we sit in diversity \n\njurisdiction and must decide a question of New York state law, we are bound “by \n\nthe law of New York as interpreted by the New York Court of Appeals.” Licci ex \n\nrel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (per curiam). \n\n In ACE, 25 N.Y.3d at 596, the New York Court of Appeals held that a cause \n\nof action for breach of R & Ws that guarantee particular facts as of a certain date, \n \n \n \n 14 \n \n \n\fbut do not guarantee future performance, accrues on the date those R & Ws \n\nbecome effective. We were called upon to apply ACE in Deutsche Bank. Deutsche \n\nBank involved facts similar to the case now before us: a trustee, Deutsche Bank, \n\nsought to recover from Quicken Loans, which originated a pool of mortgage loans \n\nthat Deutsche Bank later discovered breached R & Ws made in the mortgage‐loan \n\nagreements. 810 F.3d at 863. The issue was whether the trustee’s cause of action \n\nfor breach of the R & Ws accrued when the R & Ws became effective (making the \n\nclaims untimely) or when the trustee demanded repurchase or cure and was \n\nrebuffed (making the claims timely). Looking to ACE, we held that the trustee’s \n\ncause of action accrued “[i]mmediately upon effectiveness of the R & Ws,” because \n\nat that point, “the Trustee was entitled to demand the contractual remedy—cure \n\nor repurchase—as to any material breach.” Id. at 866. We also rejected the trustee’s \n\nargument that the remedy clause was substantive (meaning a condition precedent \n\nto a party’s performance) rather than procedural (seeking a remedy for a \n\npreexisting wrong). Id. at 867. Because we deemed the demand process to be \n\n“merely procedural,” we held that it did not “delay accrual of the cause of action,” \n\nmaking the trustee’s claims untimely. Id. (citing ACE, 25 N.Y.3d at 597). \n \n \n \n 15 \n \n \n\f U.S. Bank argues that, notwithstanding Deutsche Bank, ACE, and the \n\nnumerous cases that followed,12 its causes of action for breach of contract accrued \n\nnot when the R & Ws became effective, but when GreenPoint was made aware of \n\nthe breaches and failed to cure. According to U.S. Bank, this case is distinguishable \n\nfrom Deutsche Bank and ACE because here, sophisticated parties negotiated for a \n\ncontract provision establishing that a cause of action for a breach of the R & Ws \n\n“shall accrue,” J.A. 166, 269, only when the Trustee made a demand for \n\ncompliance. U.S. Bank made no such demand until 2012. \n\n While this appeal was pending, the New York Court of Appeals granted \n\nreview in a similar case, Deutsche Bank Nat’l Tr. Co. v. Flagstar Capital Mkts. Corp., \n\n32 N.Y.3d 139 (2018). U.S. Bank pinned its hopes on Flagstar and urged us to await \n\nthe New York high court’s decision. Flagstar, U.S. Bank argued, would \n\n“definitively determine the validity of an express accrual clause under New York \n\n\n See, e.g., U.S. Bank Nat’l Ass’n v. Dexia Real Estate Capital Mkts., 643 Fed. App’x 48 (2d \n12\n\nCir. 2016) (summary order); Wells Fargo Bank, NA v. JPMorgan Chase Bank, N.A., 643 Fed. \nApp’x 44 (2d Cir. 2016) (summary order); Homeward Residential, Inc. v. Sand Canyon Corp., \n12 Civ. 7319, 2018 WL 557913 (S.D.N.Y. Jan. 24, 2018); U.S. Bank Nat’l Ass’n v. Bank of Am., \nN.A., 15 Civ. 8153, 2016 WL 5118298 (S.D.N.Y. Sept. 20, 2016), appeal docketed, 16‐3560 (2d \nCir. 2016); Bank of N.Y. Mellon v. WMC Mortg., LLC, 151 A.D.3d 72 (1st Dep’t 2017); U.S. \nBank Nat’l Ass’n v. GreenPoint Mortg. Funding, Inc., 147 A.D.3d 79 (1st Dep’t 2016). \n \n \n \n 16 \n \n \n\flaw.” Appellant Br. 19. Flagstar did just that, but U.S. Bank’s prediction of \n\nvindication proved wrong. Under Flagstar, an express accrual clause cannot \n\noperate to delay the commencement of a limitations period under New York law, \n\nregardless of the parties’ sophistication or clearly expressed intentions. See \n\nFlagstar, 32 N.Y.3d at 139. In other words, Flagstar clarified the sole issue that U.S. \n\nBank asked us to resolve: namely, whether sophisticated parties could create a \n\nsubstantive condition precedent by including an express accrual clause that would \n\ndelay the running of the statute of limitations. See id. The New York Court of \n\nAppeals answered that question in the negative. The rules from ACE and Deutsche \n\nBank therefore govern U.S. Bank’s contractual claims here. \n\n I. Causes of Action One and Two: Breach of Contract \n\n The statute of limitations on a breach of contract claim in New York is six \n\nyears, and this period begins to run when a breach occurs. See N.Y. C.P.L.R. \n\n§§ 203(a), 213(2); Deutsche Bank, 810 F.3d at 865 (citing Ely‐Cruikshank Co. v. Bank of \n\nMontreal, 81 N.Y.2d 399, 402 (1993)). As we explained in Deutsche Bank on facts \n\nindistinguishable from those now before us, “the statute of limitations began to \n\n\n\n \n \n \n 17 \n \n \n\frun on the date the R & Ws became effective and were either true or false at that \n\ntime.” 810 F.3d at 867. \n\n The undisputed facts are that the effective dates of the R & Ws were May 15, \n\n2006 (GP2); June 15, 2006 (GP3);13 and July 17, 2006 (GP4). The FHFA filed in state \n\ncourt on May 30, 2012 (GP2); June 29, 2012 (GP3); and July 30, 2012 (GP4). As the \n\ndistrict court correctly concluded, “[e]ach of these actions was filed over six years \n\nafter the statute of limitations on the breach of contract actions began running.” \n\nLehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *7. \n\nThe first two causes of action were therefore untimely under settled New York \n\nlaw. The district court properly granted summary judgment to GreenPoint. \n\nII. Cause of Action Three: Indemnification Under Section 9 of the MLPAs \n\n When an aggrieved party recovers not from a wrongdoer but from a third \n\nparty, the third party’s subsequent claim against the wrongdoer becomes one for \n\n\n\n The district court’s reasoned opinion includes a scrivener’s error in its recitation of the \n13\n\neffective dates of the R & Ws. See Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \n2017 WL 1293773, at *7 (indicating that the last sale date for the GP3 Trust was “June 15, \n2008”). It is clear, however, from the rest of the opinion, the complaint, the parties’ \nsubmissions to the district court, and the parties’ papers on appeal that the final date of \nsale for loans in the GP3 Trust was June 15, 2006. \n \n \n \n 18 \n \n \n\findemnification. See Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 200 (2d Cir. \n\n2003) (applying New York law) (quoting Hooper Assocs., Ltd. v. AGS Computs., Inc., \n\n74 N.Y.2d 487, 492–93 (1989)); see also Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 \n\n(1990) (indemnification arises when “a party held legally liable to plaintiff shifts \n\nthe entire loss to another”). \n\n Thus, under New York law, absent “unmistakably clear” language in an \n\nindemnification provision that demonstrates that the parties intended the clause \n\nto cover first‐party claims, an agreement between two parties “to indemnify” each \n\nother does not mean that one party’s failure to perform gives rise to a claim for \n\nindemnification. Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, \n\n21 (2d Cir. 1996); see also BNP Paribas Mortg. Corp. v. Bank of Am., N.A., 778 F. Supp. \n\n2d 375, 415 (S.D.N.Y. 2011) (“Unless the indemnification clause refers exclusively \n\nor unequivocally to claims between the indemnitor and indemnitee, the court \n\nmust find the agreement to be lacking evidence of the required intent to cover such \n\nclaims.” (internal quotation marks omitted)). Consequently, absent such language, \n\n“[w]here parties agree to ‘indemnify’ each other for losses incurred by a breach of \n\ncontract, where those lo[s]ses do not relate to liability to a third party, the \n \n \n \n 19 \n \n \n\fcharacterization of ‘indemnification’ is no more than an epithet for recovery for \n\nbreach of contract.” Xerox State & Local Sols., Inc. v. Xchanging Sols. (USA), Inc., 216 \n\nF. Supp. 3d 355, 364 (S.D.N.Y. 2016). Put simply, “[a]n action does not become \n\n[one] for indemnity merely because the pleader has so denominated it.” Peoples’ \n\nDemocratic Rep. of Yemen v. Goodpasture, Inc., 782 F.2d 346, 350 (2d Cir. 1986) \n\n(quoting Bunker v. Bunker, 80 A.D.2d 817, 817 (1st Dep’t 1981)) (internal quotation \n\nmarks omitted). \n\n Here, the distinction between a claim for breach of contract and one for \n\nindemnification is relevant in determining the timeliness of U.S. Bank’s third \n\nclaim. Under New York law, a cause of action for contractual indemnification \n\n“does not arise until liability is incurred by way of actual payment” to a third \n\nparty. Varo, Inc. v. Alvis PLC, 261 A.D.2d 262, 265 (1st Dep’t 1999) (internal \n\nquotation marks omitted); see also McDermott v. City of New York, 50 N.Y.2d 211, \n\n216 (1980). Therefore, if U.S. Bank is correct that it has a cause of action for \n\nindemnification, the third claim in the SACC was timely. If, however, U.S. Bank’s \n\nindemnification claim is merely a reformulation of its breach‐of‐contract claims, \n\n\n\n \n \n \n 20 \n \n \n\fthe third cause of action was untimely for the same reasons as the first two causes \n\nof action. \n\n According to U.S. Bank, GreenPoint should pay for breaching the promises \n\nit made in the MLPAs concerning the quality of the mortgages it sold. This claim, \n\nU.S. Bank insists, is not the same as its breach of contract claims because “the \n\nparties here bargained for two separate remedies contained in two separate \n\nsections of the MLPAs.” Appellant Br. 28. U.S. Bank contends the third claim is \n\n“independent” because the indemnification provisions found in Section 9 of the \n\nMLPAs allow it to “pursue any and all remedies otherwise available at law or in \n\nequity, including, but not limited to, the right to seek damages,” J.A. 168, 270, in \n\naddition to the repurchase provision found in Section 8. As counsel explained at \n\noral argument, U.S. Bank is seeking “damages that relate to the \n\nmisrepresentations, so that unlike the initial claim[s], there’s an additional element \n\nof proof that has to be established.” Oral Arg. at 2:10–3:30. \n\n Had U.S. Bank paid a certificate holder for harms to the certificate holder \n\nstemming from GreenPoint’s breach, its claim against Greenpoint would be for \n\nindemnity. But the claim here seeks payment to U.S. Bank arising from \n \n \n \n 21 \n \n \n\fGreenPoint’s violations of the R & Ws that it made to U.S. Bank as Trustee. It is a \n\nbreach of contract claim, plain and simple. \n\n We reach this conclusion for two reasons. First, Section 9 of the MLPAs does \n\nnot “unequivocally” or in “unmistakably clear” language extend to first‐party \n\nclaims. See J.A. at 167–68, 270 (“[GreenPoint] agrees to indemnify [U.S. Bank] and \n\nhold it harmless from and against any and all claims, losses, damages, penalties, \n\nfines, forfeitures, legal fees and related costs, judgments, and any other costs, fees \n\nand expenses that [U.S. Bank] may sustain . . . [and GreenPoint] shall immediately \n\nnotify [U.S. Bank] if a claim is made by a third party with respect to this Agreement \n\nor the Mortgage Loans.”). In the absence of such language, the provision must be \n\nread to contemplate an actual indemnification scenario, in which U.S. Bank would \n\nbe entitled to repayment if it paid out costs to a third party. U.S. Bank does not \n\nallege that to date it has paid on claims to third parties directly tied to GreenPoint’s \n\nbreaches of its R & Ws. \n\n Second, the allegations in the SACC belie the argument that U.S. Bank is \n\nseeking to recover something different under its indemnification claim than what \n\nit seeks under the breach of contract claims. See J.A. at 1148–50, ¶ 99 (“To date, the \n \n \n \n 22 \n \n \n\fTrusts have sustained approximately $1.1 billion in aggregate collateral‐level \n\nlosses and damages as a result of GreenPoint’s breaches of its R & Ws and failure to \n\nrepurchase breaching Mortgage Loans.” (emphasis added)). The argument that \n\nSection 9 provides an “independent” remedy is, therefore, meritless: the \n\nindemnification claim cannot be “independent” if its success directly depends on \n\nthe breaches of the R & Ws in the MLPAs outlined in the contract claims. As the \n\nNew York Court of Appeals explained in ACE, even if two sections of the contract \n\nprovide alternative remedies for the same breach, “the underlying act the Trust \n\ncomplains of is the same: the quality of the loans and their conformity with the \n\n[R & Ws].” 25 N.Y.3d at 596. \n\n Thus, U.S. Bank’s “indemnification” claim is in reality a repackaged version \n\nof its breach of contract claims. See Goodpasture, 782 F.2d at 350. There is no \n\n“indemnified” party who covered a loss that should have been paid by a third‐\n\nparty obligor. There is thus no “independent” claim for indemnification. U.S. Bank \n\ncannot circumvent the statute of limitations by recasting its contract claim as one \n\n\n\n\n \n \n \n 23 \n \n \n\ffor indemnification. The district court properly dismissed the third claim as \n\nuntimely.14 \n\nIII. Cause of Action Four: Breach of the Indemnification Agreements \n\n In its fourth claim, raised for the first time in the SACC filed on March 3, \n\n2016, U.S. Bank alleges breaches of the Indemnification Agreements. These three \n\nagreements (separate and distinct from the indemnification clauses in the MLPAs) \n\nare documents the parties signed immediately before they closed on the MLPAs. \n\nIn them, GreenPoint independently represented that it had complied with the \n\nR & Ws it made in the MLPAs. All three agreements contain the same statement: \n\n“GreenPoint hereby represents and warrants, as of the date of the Prospectus \n\nSupplement, that the GreenPoint Information is true and correct in all material \n\n\n\n\n GreenPoint also argues that this claim should be dismissed under Federal Rule of Civil \n14\n\nProcedure 12(b)(1) because the FHFA did not have standing to file the summonses with \nnotice in the first instance. U.S. Bank may not, GreenPoint argues, be substituted as the \nreal party in interest under Federal Rule of Civil Procedure 17(a) because there was no \n“honest mistake” in the initial naming of the plaintiff. In a letter brief it submitted to this \nCourt pursuant to Federal Rule of Appellate Procedure 28(j), U.S. Bank directs our \nattention to a recent opinion from this Court holding that “a plaintiff’s honest mistake is \nnot a precondition for granting a Rule 17(a)(3) motion.” Klein ex rel. Qlik Techs., Inc. v. Qlik \nTechs., Inc., 906 F.3d 215, 227 (2d Cir. 2018). Because we agree with the district court that \nU.S. Bank’s claim was untimely on a different basis, we decline to address this argument. \n \n \n \n 24 \n \n \n\frespects and includes all ‘Seller Information’ as defined in the [MLPAs].” J.A. 1063 \n\n(GP2), 1072 (GP3), 1081 (GP4). \n\n According to U.S. Bank, under Federal Rule of Civil Procedure 15(c), its \n\nclaim for breach of the Indemnification Agreements relates back to the filing dates \n\nof the state court summonses with notice, therefore rendering the claim timely, at \n\nleast as to the GP2 and GP4 Trusts.15 We disagree. \n\n Rule 15(c) provides that an amendment to a pleading “relates back to the \n\ndate of the original pleading” where, as relevant here, “the amendment asserts a \n\nclaim or defense that arose out of the conduct, transaction, or occurrence set out—\n\nor attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). \n\n\n\n\n15 The FHFA filed its summons with notice for the GP2 Trust on May 30, 2012, exactly six \nyears after May 30, 2006, the date that the GP2 Indemnification Agreement was executed. \nTherefore, if U.S. Bank’s claim were to relate back to this date, it would be timely. \nSimilarly, the GP4 Indemnification Agreement was executed on July 28, 2006, and six \nyears from that date was July 28, 2012, a Saturday. The time to file therefore fell on “the \nnext succeeding business day”—Monday, July 30, 2012. See N.Y. Gen. Constr. § 25‐a(1); \nFed. R. Civ. P. 6(a)(1). This is precisely the day that the FHFA filed its summons with \nnotice, and, consequently, if U.S. Bank’s claim were to relate back to this date, it would \nbe timely as well. U.S. Bank’s claim as to the GP3 Trust, however, is untimely even under \nits “relation‐back” theory, because the GP3 Indemnification Agreement was executed on \nJune 28, 2006, and the FHFA filed its summons with notice on June 29, 2012, one day after \nthe statute of limitations had run. \n \n \n \n 25 \n \n \n\fThe purpose of Rule 15(c)’s relation‐back provision is “to balance the interests of \n\nthe defendant protected by the statute of limitations with the preference expressed \n\nin the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for \n\nresolving disputes on their merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, \n\n550 (2010). “[T]he central inquiry is whether adequate notice of the matters raised \n\nin the amended pleading has been given to the opposing party within the statute \n\nof limitations by the general fact situation alleged in the original pleading.” Slayton \n\nv. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (internal quotation marks \n\nomitted). \n\n Thus, “even where an amended complaint tracks the legal theory of the first \n\ncomplaint, claims that are based on an entirely distinct set of factual allegations \n\nwill not relate back.” Id. (internal quotation marks omitted). This includes claims \n\nthat are based on different contracts.16 \n\n\n\n See, e.g., 6A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure \n16\n\n§ 1497 (3d ed. 2018) (“[A]mendments alleging . . . the breach of an independent \ncontract . . . may be subject to the defense of statute of limitations because of a failure to \nmeet the transaction standard.”); see also Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d \n992, 994 (8th Cir. 1989); In re Rationis Enters., Inc. of Panama, 45 F. Supp. 2d 365, 367 \n(S.D.N.Y. 1999). \n \n \n \n 26 \n \n \n\f The SACC’s allegations of breaches of the GP2 and GP4 Indemnification \n\nAgreements do not relate back to the filing date of the FHFA’s original pleading \n\nin New York Supreme Court. The original summonses with notice involved \n\nactions for breach of contract and declaratory relief (GP2) and breach of contract, \n\ndeclaratory relief, specific performance, and indemnification (GP3 and GP4) under \n\nthe provisions of the MLPAs. J.A. 23 (GP2), 38 (GP3), 53 (GP4). The focus of the \n\nsummonses was GreenPoint’s contractual obligation “to cure or repurchase from \n\nthe Trust[s] those mortgage loans where R & Ws have been breached.” Id. 24, 39, \n\n54. The summonses, in other words, contained no mention of the Indemnification \n\nAgreements, and sought recovery only for breaches of the R & Ws in the MLPAs, \n\nwhich governed the initial sale of the mortgage loans from GreenPoint to Lehman. \n\nAlthough the underlying R & Ws in the MLPAs and the Indemnification \n\nAgreements employ the same terms, we cannot conclude that GreenPoint was on \n\nnotice when the FHFA filed the original complaint that the litigation would also \n\ninvolve the Indemnification Agreements. Indeed, the FHFA had no reason to \n\ninclude any claims related to the Indemnification Agreements, in which it had no \n\ninterest and to which it was never a signatory. Those documents were intended to \n \n \n \n 27 \n \n \n\foutline the scope of GreenPoint’s obligation to indemnify Lehman and its \n\nsuccessors for claims brought against Lehman by third parties—not to protect \n\ncertificate holders (like the FHFA) from the sale of unsound securitized mortgage \n\nloans. \n\n Simply put, the original complaint and the SACC invoke separate contracts; \n\nthe signatories to the Indemnification Agreements and the MLPAs are different; \n\nand the nature of the claims and the remedies they seek are not the same. See \n\nASARCO LLC v. Goodwin, 756 F.3d 191, 202–03 (2d Cir. 2014); 6A Charles Alan \n\nWright & Arthur R. Miller, Federal Practice & Procedure § 1497 (3d ed. 2018) \n\n(collecting cases); see also Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \n\n2017 WL 1293773, at *9 (“[I]t cannot be said that based on the facts alleged in the \n\noriginal pleading, GreenPoint was given adequate notice that Plaintiff would \n\nbring claims pursuant to the Indemnification Agreements.”). The fourth cause of \n\naction does not relate back to the original filing for claims based on any of the \n\nTrusts, and that cause of action was therefore untimely asserted. \n\n\n\n\n \n \n \n 28 \n \n \n\f CONCLUSION \n\n The district court properly dismissed U.S. Bank’s claims as untimely. For the \n\nforegoing reasons, the judgment of the district court granting GreenPoint’s \n\nmotions for summary judgment and to dismiss is AFFIRMED.\n\n\n\n\n \n \n \n 29\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: LEHMAN XS TRUST, SERIES 2006-GP2, (LXS 2006-GP2), BY U.S. BANK NATIONAL ASSOCIATION, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP3, (LXS 2006-GP3), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP4, (LXS 2006-GP4), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Plaintiffs-Appellants, v. GREENPOINT MORTGAGE FUNDING, INC., Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-06\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐1290 \\nLehman XS Trust v. Greenpoint Mortgage Funding, Inc. \\n\\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n ______________ \\n \\n August Term 2017 \\n \\n (Argued: April 17, 2018 Decided: February 6, 2019) \\n \\n Docket 17‐1290 \\n \\n LEHMAN XS TRUST, SERIES 2006‐GP2, (LXS 2006‐GP2), by U.S. BANK \\n NATIONAL ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS \\n TRUST, SERIES 2006‐GP3, (LXS 2006‐GP3), by U.S. BANK NATIONAL \\n ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS TRUST, SERIES \\n 2006‐GP4, (LXS 2006‐GP4), by U.S. BANK NATIONAL ASSOCIATION, solely in \\n its capacity as Trustee, \\n \\n Plaintiffs‐Appellants, \\n \\n v. \\n \\n GREENPOINT MORTGAGE FUNDING, INC., \\n \\n Defendant‐Appellee.* \\n ______________ \\n \\nBefore: \\n WESLEY, CHIN, AND CARNEY, Circuit Judges. \\n \\n Plaintiff U.S. Bank National Association (“U.S. Bank”) appeals from a \\njudgment entered in the United States District Court for the Southern District of \\nNew York (Carter, J.) dismissing its second amended consolidated complaint as \\nuntimely. U.S. Bank argues, among other things, that the district court erred in \\n\\n The Clerk of the Court is respectfully directed to amend the official caption as noted \\n*\\n\\nabove. \\n\\fdismissing its complaint because (1) its claim for indemnification under the \\ncontract in dispute is independent of its claim for breach of that contract, and the \\nformer claim therefore was timely filed in federal court; and (2) its claim for \\nindemnification based on separate contracts executed at a later date relates back \\nto the original state‐court filing under Federal Rule of Civil Procedure 15(c). We \\ndisagree. AFFIRMED. \\n _________________ \\n\\n HECTOR TORRES (David J. Abrams, David J. Mark, on the brief), \\n Kasowitz Benson Torres LLP, New York, NY, for Plaintiffs‐\\n Appellants. \\n\\n THEODORE R. SNYDER (James A. Murphy, New York, NY; \\n Cameron S. Matheson, Glen Allen, VA, on the brief), Murphy & \\n McGonigle, P.C., for Defendant‐Appellee. \\n\\n _________________ \\n\\nWESLEY, Circuit Judge: \\n\\n This appeal is the most recent chapter in the ongoing saga of the last \\n\\ndecade’s housing finance crisis. At the core of the appeal are three trusts (the \\n\\n“Trusts”) composed of residential mortgage‐backed securities that Defendant‐\\n\\nAppellee GreenPoint Mortgage Funding, Inc. (“GreenPoint”) sold in 2006 to \\n\\nLehman Brothers Holding, Inc., and Lehman Brothers Bank, FSB (collectively, \\n\\n“Lehman”), with Plaintiff‐Appellant U.S. Bank acting as Trustee. Six years after \\n\\nthe sale, in 2012, a forensic review of the Trusts revealed that nearly all of the \\n\\n\\n \\n \\n \\n 2 \\n \\n \\n\\fsample mortgages GreenPoint sold to Lehman were in breach of the \\n\\nrepresentations and warranties (“R & Ws”) GreenPoint made in its Flow Mortgage \\n\\nLoan Purchase and Warranties Agreements (“MLPAs”) with Lehman. \\n\\n GreenPoint failed to cure or repurchase the loans within the contractual time \\n\\nframes. As a result, the Federal Housing Finance Agency (“FHFA”)—acting on \\n\\nbehalf of U.S. Bank as Trustee and as conservator for the Federal Home Loan \\n\\nMortgage Corporation (“Freddie Mac”),1 which in turn was the beneficial owner \\n\\nof some of the certificates issued by the Trusts—filed summonses with notice in \\n\\nNew York Supreme Court.2 \\n\\n GreenPoint removed the actions to federal court, at which point the FHFA \\n\\ndropped out of the litigation and U.S. Bank as Trustee filed an amended and \\n\\n\\n\\n\\n On September 6, 2008, Freddie Mac was placed into conservatorship by the FHFA \\n1\\n\\npursuant to 12 U.S.C. § 4617.\\n2 In the New York courts, a plaintiff commences an action “by filing a summons and \\ncomplaint or summons with notice.” N.Y. C.P.L.R. § 304(a). A party may elect to file a \\nsummons with notice if the party is not prepared to serve the complaint; in that case, the \\nsummons must put the defendant on notice of “the nature of the action and the relief \\nsought,” as well as “the sum of money for which judgment may be taken in case of \\ndefault.” Id. § 305(b). \\n \\n \\n \\n 3 \\n \\n \\n\\fconsolidated complaint.3 After discovery and the filing of a second amended \\n\\nconsolidated complaint, GreenPoint moved for summary judgment as to three \\n\\ncounts of this complaint, and to dismiss as to the fourth count, arguing, among \\n\\nother things, that the claims were barred by New York’s statute of limitations. \\n\\n The district court concluded, for various reasons discussed in this opinion, \\n\\nthat none of U.S. Bank’s claims was timely. The issue before this Court is whether \\n\\nany of U.S Bank’s claims survive GreenPoint’s motions for summary judgment \\n\\nand dismissal. We affirm the district court’s conclusion that none does. \\n\\n BACKGROUND \\n\\n I. Factual Background \\n\\n In 2006, Lehman, not a party to this appeal, purchased aggregated pools of \\n\\nresidential home mortgages from GreenPoint.4 The sales were governed by two \\n\\n\\n\\n3 The FHFA ceased prosecuting its claims in this case because of a “no action” clause \\ncontained in the Trust Agreements. A “no action” clause bars “individual certificate \\nholders from bringing independent law suits which are more effectively brought by the \\ntrustee unless certain exceptions are met.” Deutsche Bank Nat’l Tr. Co. v. Quicken Loans Inc., \\n810 F.3d 861, 868 n.8 (2d Cir. 2015) (cleaned up) (internal quotation marks omitted) \\n(“Deutsche Bank”). \\n4 In 2006, before Lehman began bankruptcy proceedings, U.S. Bank entered into \\nagreements to serve as Trustee of the Trusts at issue in this case. \\n \\n \\n \\n 4 \\n \\n \\n\\fMLPAs, each of which contained a series of R & Ws as to the quality of the \\n\\nmortgage loans.5 When Lehman purchased the loans from GreenPoint in 2006, \\n\\nthey had an aggregate principal balance exceeding $3.39 billion. \\n\\n Lehman conveyed the mortgage loans and its rights under the MLPAs to a \\n\\ndepositor (also not a party to this appeal), which then conveyed the mortgage \\n\\nloans to three Trusts—GP2, GP3, and GP4—via another set of contracts \\n\\ndenominated “Trust Agreements.”6 The last dates on which Lehman purchased \\n\\nmortgage loans from GreenPoint (i.e., the effective dates of the R & Ws) were May \\n\\n15, 2006 (GP2), June 15, 2006 (GP3), and July 17, 2006 (GP4). The Trusts closed on \\n\\n\\n5 Although the MLPAs at issue are separate contracts, the language relevant to the issues \\non appeal is identical in the two documents, and U.S. Bank treats the documents as one \\nin its brief to this Court. The first MLPA was signed between Lehman Brothers Bank, FSB \\nand GreenPoint in 2001; the second MLPA was signed between Lehman Brothers \\nHoldings, Inc. and GreenPoint in 2006. \\n6 The “depositor” here was a third‐party entity called Structured Asset Securities \\nCorporation (“SASC”). SASC’s role was to create the three Trusts and, “[c]oncurrently \\nwith the execution” of the Trust Agreements, to “transfer, assign, set over, deposit with \\nand otherwise convey to the Trustee, without recourse . . . all the right, title and interest \\nof the Depositor in and to the Mortgage Loans.” J.A. 387, § 2.01(a). In other words, the \\ndepositor’s role was to create the Trusts. In the same moment that the parties closed on \\nthe MLPAs, SASC acquired an interest in the Trust’s assets, placed the assets in the Trusts, \\nand transferred the Trusts to the Trustee (U.S. Bank). The signatories to the Trust \\nAgreements were SASC as depositor; U.S. Bank as Trustee; Aurora Loan Services LLC as \\nmaster servicer (a role not relevant to this appeal); and Lehman as underwriter. \\n \\n \\n \\n 5 \\n \\n \\n\\fthe MLPAs on May 31, 2006 (GP2), June 30, 2006 (GP3), and July 31, 2006 (GP4). \\n\\nOnce the mortgage loans were deposited into the Trusts, they were securitized and \\n\\ncertificates were issued representing rights to cash flows from the securitized loan \\n\\nportfolios. Investors then purchased the certificates, thereby acquiring an \\n\\nownership interest in the Trusts. Freddie Mac was one of these investors.7 \\n\\n The R & Ws contained in the MLPAs and the Trust Agreements made \\n\\nassertions about the quality of individual mortgage loans and the mortgage loan \\n\\npools. Specifically, Section 7 of the MLPAs represented that the mortgage loans \\n\\nwere “underwritten in accordance with [GreenPoint’s] Underwriting Guidelines,” \\n\\nJ.A. 160, 261; that the mortgage loan schedules were “complete, true and correct,” \\n\\nid. 154, 255; that GreenPoint possessed complete mortgage files, id. 161, 262; and \\n\\nthat, except as specifically scheduled, the loan‐to‐value ratio for the mortgage \\n\\nloans did not exceed 80%, id. 158, 259. The MLPAs provided that GreenPoint made \\n\\n\\n7 Freddie Mac was the beneficial owner of certificates in a single class issued by each of \\nthe Trusts. It did not, however, own more than 25% of “each Class affected thereby” the \\nalleged default, a condition the contractual no action clause required for a certificate \\nholder to commence litigation. Although we note that GreenPoint appears to be correct \\nthat the FHFA (acting as conservator for Freddie Mac) did not satisfy this condition, we \\nexpress no judgment on GreenPoint’s merits argument that the FHFA lacked standing to \\nbring suit because of the no action clause. \\n \\n \\n \\n 6 \\n \\n \\n\\fthese R & Ws “as of” each closing date. Section 2.03 of the Trust Agreements \\n\\nincorporated the R & Ws from the MLPAs. \\n\\n In an effort to ensure compliance with the R & Ws, the MLPAs and the Trust \\n\\nAgreements created a contractual remedy in the event that GreenPoint breached. \\n\\nUnder Section 8 of the MLPAs, upon learning of a breach, GreenPoint had sixty \\n\\ndays to “use its best efforts promptly to cure such [b]reach in all material respects.” \\n\\nId. 165, 268. If the breach could not be cured, Section 8 of the MLPAs provided that \\n\\nGreenPoint “shall, at the Purchaser’s option, repurchase such Mortgage Loan” at \\n\\nan established repurchase price. Id. The Trust Agreements included an identical \\n\\nclause, except they gave GreenPoint ninety days from the discovery of the breach \\n\\nto cure or repurchase. The same section of the MLPAs contained an Accrual \\n\\nProvision that established how the parties would proceed in the event of a breach.8 \\n\\n\\n\\n\\n8 The Accrual Provision states: \\n Any cause of action against [GreenPoint] relating to or arising out of the \\n Breach of any [R & Ws] . . . shall accrue as to any Mortgage Loan upon \\n (i) discovery of such Breach by the Purchaser or notice thereof by \\n [GreenPoint] to the Purchaser, (ii) failures by [GreenPoint] to cure such \\n Breach or repurchase such Mortgage Loan as specified above, and \\n \\n \\n \\n 7 \\n \\n \\n\\f Section 9 of the MLPAs also contained an indemnification clause, which \\n\\nreads, in relevant part: \\n\\n [GreenPoint] agrees to indemnify [Lehman] and hold it harmless \\n from and against any and all claims, losses, damages, penalties, fines, \\n forfeitures, legal fees and related costs, judgments, and any other \\n costs, fees and expenses that [Lehman] may sustain in any way \\n related to (i) any act or omission on the part of [GreenPoint] or any \\n other person or entity in the origination, receiving, processing, \\n funding or servicing any Mortgage Loan prior to the related Transfer \\n Date or otherwise arising from the transfer of servicing of the \\n Mortgage Loans provided for in this Agreement, [and] (ii) any \\n assertion based on, grounded upon [or] resulting from a Breach of any \\n of [GreenPoint’s R & Ws] contained herein . . . . [GreenPoint] shall \\n immediately notify [Lehman] if a claim is made by a third party with \\n respect to this Agreement or the Mortgage Loans . . . \\n \\nJ.A. 167, 270. \\n \\n In addition to the indemnification provisions included in the MLPAs, \\n\\nGreenPoint (together with Lehman and SASC) entered into separate \\n\\nIndemnification Agreements for each Trust. The agreements provided that \\n\\nGreenPoint would “indemnify and hold harmless” the other parties to the MLPAs \\n\\n\\n\\n\\n (iii) demand upon [GreenPoint] by the Purchaser for compliance with this \\n Agreement. \\nJ.A. 166, 269. \\n \\n \\n \\n 8 \\n \\n \\n\\fand Trust Agreements “from and against any and all losses, claims, liabilities, \\n\\ndamages, penalties, fines, forfeitures, legal fees and expenses and related costs, \\n\\njudgments, and any other costs, fees and expenses” that “arise out of or are based \\n\\nupon any untrue statement or alleged untrue statement of any material fact” or \\n\\nthe omission of any such fact in the information GreenPoint provided to Lehman. \\n\\nId. 1062, 1071, 1080. The relevant “as of” dates for the Indemnification Agreements \\n\\nwere May 30, 2006 (GP2); June 28, 2006 (GP3); and July 28, 2006 (GP4). \\n\\n In 2012, Freddie Mac conducted a forensic review of the loan files9 and \\n\\ndetermined that an overwhelming percentage of the mortgage loans in the Trusts \\n\\nbreached GreenPoint’s R & Ws under the MLPAs and Trust Agreements.10 U.S. \\n\\n\\n9 The operative complaint discusses the forensic review in the passive voice, making it \\nimpossible for us to determine from the complaint alone who initiated the review in 2012 \\nand why. See, e.g., J.A. 1129 ¶ 41 (“Forensic reviews were undertaken . . . .“). However, \\nU.S. Bank’s brief to this Court explains that Freddie Mac—not U.S. Bank—conducted the \\nreview, presumably after it and other certificate holders suffered major losses on their \\ninvestments because of high rates of default. Appellant Br. 9. \\n U.S. Bank alleges that this analysis showed that 93.5% of the sampled loans in the GP2 \\n10\\n\\nTrust were in breach, 99.8% of the sampled loans in the GP3 Trust were in breach, and \\n100% of the sampled loans in the GP4 Trust were in breach. The breaches included \\nmisrepresentations of borrower income, leading to a higher debt‐to‐income ratio than \\nGreenPoint’s guidelines permitted; misrepresentations of occupancy status of homes to \\nwhich the mortgage loans related, decreasing the value of the mortgage loans; improper \\ncalculations of debt and debt‐to‐income ratios; failure to verify borrower assets or \\n \\n \\n \\n 9 \\n \\n \\n\\fBank submitted breach notices to GreenPoint on the following dates: March 19, \\n\\n2012, and August 24, 2012, for the GP2 Trust; March 19, 2012, for the GP3 Trust; \\n\\nand April 17, 2012, for the GP4 Trust. GreenPoint did not cure or repurchase within \\n\\nthe sixty‐ or ninety‐day periods established in the MLPAs and Trust Agreements, \\n\\nrespectively. \\n\\n II. Procedural History \\n\\n Almost immediately after the sixty‐day cure periods expired, the FHFA \\n\\ncommenced three actions against GreenPoint in New York Supreme Court, New \\n\\nYork County, “as conservator for” Freddie Mac and “on behalf of” U.S. Bank as \\n\\nTrustee. The FHFA filed summonses with notice for the GP2, GP3, and GP4 Trusts, \\n\\nrespectively, on May 30, 2012, June 29, 2012, and July 30, 2012, exactly one day \\n\\nahead of the six‐year anniversaries of the closing dates of the three Trusts. \\n\\nGreenPoint removed the actions to the United States District Court for the \\n\\nSouthern District of New York on October 24, 2012. On November 21, 2012, the \\n\\n\\n\\n\\nqualifying loans with insufficient credit score; and incorrect calculations of loan‐to‐value \\nand cumulative loan‐to‐value ratios, which, according to U.S. Bank, are allegedly “among \\nthe most important measures of the risk of a mortgage loan.” J.A. 1130–41. \\n \\n \\n \\n 10 \\n \\n \\n\\fdistrict court consolidated the three actions and authorized the plaintiffs to file a \\n\\nsingle consolidated complaint, which they did on November 26, 2012. \\n\\n The FHFA dropped out of the litigation in January 2013, and U.S. Bank—\\n\\nnow the sole plaintiff—filed an amended consolidated complaint.11 The amended \\n\\nconsolidated complaint included three causes of action related to breach of \\n\\ncontract and indemnification. GreenPoint moved to dismiss, and the district court \\n\\ndenied the motion. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. \\n\\nFunding, Inc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2014 WL 1301944 (S.D.N.Y. \\n\\nMar. 31, 2014). \\n\\n The parties commenced discovery. Although they completed that task by \\n\\nearly December 2014, U.S. Bank requested a stay of further proceedings pending \\n\\nthe New York Court of Appeals’ resolution of an appeal taken from ACE Securities \\n\\n\\n\\n GreenPoint invoked federal jurisdiction under 28 U.S.C. § 1345, which provides that \\n11\\n\\n“the district courts shall have original jurisdiction of all civil actions, suits or proceedings \\ncommenced by the United States, or by any agency or officer thereof expressly authorized \\nto sue by Act of Congress.” As the removal notices indicated, the FHFA is a federal \\nagency for the purposes of § 1345. See 12 U.S.C. § 4511(a) (“There is established the \\nFederal Housing Finance Agency, which shall be an independent agency of the Federal \\nGovernment.”). When the FHFA dropped out of the suit, however, U.S. Bank filed its \\namended consolidated complaint under diversity jurisdiction as well as 28 U.S.C. § 1345. \\n \\n \\n \\n 11 \\n \\n \\n\\fCorp. v. DB Structured Products, Inc., 112 A.D.3d 522 (1st Dep’t 2013), leave to appeal \\n\\ngranted by 23 N.Y.3d 906 (2014). Soon after the Court of Appeals issued its opinion, \\n\\nsee ACE Secs. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581 (2015) (“ACE”), U.S. \\n\\nBank moved for and was granted leave to file a second amended consolidated \\n\\ncomplaint (“SACC”). It filed that complaint, which is the focus of the present \\n\\nappeal, on March 3, 2016. \\n\\n The SACC mirrored the first amended consolidated complaint with respect \\n\\nto the first two causes of action: (1) breach of contract seeking specific \\n\\nperformance, based on GreenPoint’s failure to repurchase the noncompliant loans \\n\\nor cure its breach of the R & Ws; and (2) breach of contract seeking monetary \\n\\ndamages, based on the same allegations. The SACC expanded the third cause of \\n\\naction—indemnification based on language in the MLPAs and the Trust \\n\\nAgreements—to seek not only expenses incurred in connection with the first two \\n\\ncauses of action, but also a monetary award of $1.1 billion. Finally, the SACC \\n\\nadded a fourth cause of action for indemnification arising under the separate \\n\\nIndemnification Agreements. The fourth claim sought reimbursement for losses \\n\\n\\n\\n \\n \\n \\n 12 \\n \\n \\n\\fbased on a separate set of R & Ws that GreenPoint made when the parties executed \\n\\nthe Indemnification Agreements. \\n\\n GreenPoint moved for summary judgment on the first three claims, arguing \\n\\nthey were time‐barred. It moved for dismissal of the fourth claim under Federal \\n\\nRules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that the FHFA and U.S. \\n\\nBank lacked standing and that U.S. Bank had failed to state a claim. The district \\n\\ncourt granted the motion for summary judgment and dismissed the fourth claim \\n\\nas time‐barred. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. Funding, \\n\\nInc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *10 (S.D.N.Y. \\n\\nMar. 29, 2017). The court found that the contractual claims (claims one and two) \\n\\nwere time‐barred because the FHFA filed the summonses with notice more than \\n\\nsix years after the statute of limitations began to run under New York law. Id. at \\n\\n*7. With respect to the third claim, seeking indemnification, the court found that \\n\\nU.S. Bank’s claim was “not one for indemnification” but instead was “more \\n\\nappropriately characterized as one to recover losses incurred by breach of \\n\\ncontract.” Id. at *8. Accordingly, the court concluded that the third claim, too, was \\n\\ntime‐barred. Finally, the court held that the fourth claim, also seeking \\n \\n \\n \\n 13 \\n \\n \\n\\findemnification, was time‐barred because it involved a new set of operative facts \\n\\nand therefore could not relate back to the original complaint pursuant to Federal \\n\\nRule of Civil Procedure 15(c), even assuming the original complaint was timely \\n\\nfiled. Id. at *9. U.S. Bank appealed. \\n\\n DISCUSSION \\n\\n We review a district court’s grant of summary judgment de novo, mindful \\n\\nthat summary judgment is appropriate only “if the movant shows that there is no \\n\\ngenuine dispute as to any material fact and the movant is entitled to judgment as \\n\\na matter of law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. \\n\\nCiv. P. 56(a)). We also review de novo a district court’s grant of a motion to dismiss, \\n\\nincluding its interpretation and application of statutes of limitations and \\n\\ncontractual terms. Deutsche Bank, 810 F.3d at 865. When we sit in diversity \\n\\njurisdiction and must decide a question of New York state law, we are bound “by \\n\\nthe law of New York as interpreted by the New York Court of Appeals.” Licci ex \\n\\nrel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (per curiam). \\n\\n In ACE, 25 N.Y.3d at 596, the New York Court of Appeals held that a cause \\n\\nof action for breach of R & Ws that guarantee particular facts as of a certain date, \\n \\n \\n \\n 14 \\n \\n \\n\\fbut do not guarantee future performance, accrues on the date those R & Ws \\n\\nbecome effective. We were called upon to apply ACE in Deutsche Bank. Deutsche \\n\\nBank involved facts similar to the case now before us: a trustee, Deutsche Bank, \\n\\nsought to recover from Quicken Loans, which originated a pool of mortgage loans \\n\\nthat Deutsche Bank later discovered breached R & Ws made in the mortgage‐loan \\n\\nagreements. 810 F.3d at 863. The issue was whether the trustee’s cause of action \\n\\nfor breach of the R & Ws accrued when the R & Ws became effective (making the \\n\\nclaims untimely) or when the trustee demanded repurchase or cure and was \\n\\nrebuffed (making the claims timely). Looking to ACE, we held that the trustee’s \\n\\ncause of action accrued “[i]mmediately upon effectiveness of the R & Ws,” because \\n\\nat that point, “the Trustee was entitled to demand the contractual remedy—cure \\n\\nor repurchase—as to any material breach.” Id. at 866. We also rejected the trustee’s \\n\\nargument that the remedy clause was substantive (meaning a condition precedent \\n\\nto a party’s performance) rather than procedural (seeking a remedy for a \\n\\npreexisting wrong). Id. at 867. Because we deemed the demand process to be \\n\\n“merely procedural,” we held that it did not “delay accrual of the cause of action,” \\n\\nmaking the trustee’s claims untimely. Id. (citing ACE, 25 N.Y.3d at 597). \\n \\n \\n \\n 15 \\n \\n \\n\\f U.S. Bank argues that, notwithstanding Deutsche Bank, ACE, and the \\n\\nnumerous cases that followed,12 its causes of action for breach of contract accrued \\n\\nnot when the R & Ws became effective, but when GreenPoint was made aware of \\n\\nthe breaches and failed to cure. According to U.S. Bank, this case is distinguishable \\n\\nfrom Deutsche Bank and ACE because here, sophisticated parties negotiated for a \\n\\ncontract provision establishing that a cause of action for a breach of the R & Ws \\n\\n“shall accrue,” J.A. 166, 269, only when the Trustee made a demand for \\n\\ncompliance. U.S. Bank made no such demand until 2012. \\n\\n While this appeal was pending, the New York Court of Appeals granted \\n\\nreview in a similar case, Deutsche Bank Nat’l Tr. Co. v. Flagstar Capital Mkts. Corp., \\n\\n32 N.Y.3d 139 (2018). U.S. Bank pinned its hopes on Flagstar and urged us to await \\n\\nthe New York high court’s decision. Flagstar, U.S. Bank argued, would \\n\\n“definitively determine the validity of an express accrual clause under New York \\n\\n\\n See, e.g., U.S. Bank Nat’l Ass’n v. Dexia Real Estate Capital Mkts., 643 Fed. App’x 48 (2d \\n12\\n\\nCir. 2016) (summary order); Wells Fargo Bank, NA v. JPMorgan Chase Bank, N.A., 643 Fed. \\nApp’x 44 (2d Cir. 2016) (summary order); Homeward Residential, Inc. v. Sand Canyon Corp., \\n12 Civ. 7319, 2018 WL 557913 (S.D.N.Y. Jan. 24, 2018); U.S. Bank Nat’l Ass’n v. Bank of Am., \\nN.A., 15 Civ. 8153, 2016 WL 5118298 (S.D.N.Y. Sept. 20, 2016), appeal docketed, 16‐3560 (2d \\nCir. 2016); Bank of N.Y. Mellon v. WMC Mortg., LLC, 151 A.D.3d 72 (1st Dep’t 2017); U.S. \\nBank Nat’l Ass’n v. GreenPoint Mortg. Funding, Inc., 147 A.D.3d 79 (1st Dep’t 2016). \\n \\n \\n \\n 16 \\n \\n \\n\\flaw.” Appellant Br. 19. Flagstar did just that, but U.S. Bank’s prediction of \\n\\nvindication proved wrong. Under Flagstar, an express accrual clause cannot \\n\\noperate to delay the commencement of a limitations period under New York law, \\n\\nregardless of the parties’ sophistication or clearly expressed intentions. See \\n\\nFlagstar, 32 N.Y.3d at 139. In other words, Flagstar clarified the sole issue that U.S. \\n\\nBank asked us to resolve: namely, whether sophisticated parties could create a \\n\\nsubstantive condition precedent by including an express accrual clause that would \\n\\ndelay the running of the statute of limitations. See id. The New York Court of \\n\\nAppeals answered that question in the negative. The rules from ACE and Deutsche \\n\\nBank therefore govern U.S. Bank’s contractual claims here. \\n\\n I. Causes of Action One and Two: Breach of Contract \\n\\n The statute of limitations on a breach of contract claim in New York is six \\n\\nyears, and this period begins to run when a breach occurs. See N.Y. C.P.L.R. \\n\\n§§ 203(a), 213(2); Deutsche Bank, 810 F.3d at 865 (citing Ely‐Cruikshank Co. v. Bank of \\n\\nMontreal, 81 N.Y.2d 399, 402 (1993)). As we explained in Deutsche Bank on facts \\n\\nindistinguishable from those now before us, “the statute of limitations began to \\n\\n\\n\\n \\n \\n \\n 17 \\n \\n \\n\\frun on the date the R & Ws became effective and were either true or false at that \\n\\ntime.” 810 F.3d at 867. \\n\\n The undisputed facts are that the effective dates of the R & Ws were May 15, \\n\\n2006 (GP2); June 15, 2006 (GP3);13 and July 17, 2006 (GP4). The FHFA filed in state \\n\\ncourt on May 30, 2012 (GP2); June 29, 2012 (GP3); and July 30, 2012 (GP4). As the \\n\\ndistrict court correctly concluded, “[e]ach of these actions was filed over six years \\n\\nafter the statute of limitations on the breach of contract actions began running.” \\n\\nLehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *7. \\n\\nThe first two causes of action were therefore untimely under settled New York \\n\\nlaw. The district court properly granted summary judgment to GreenPoint. \\n\\nII. Cause of Action Three: Indemnification Under Section 9 of the MLPAs \\n\\n When an aggrieved party recovers not from a wrongdoer but from a third \\n\\nparty, the third party’s subsequent claim against the wrongdoer becomes one for \\n\\n\\n\\n The district court’s reasoned opinion includes a scrivener’s error in its recitation of the \\n13\\n\\neffective dates of the R & Ws. See Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \\n2017 WL 1293773, at *7 (indicating that the last sale date for the GP3 Trust was “June 15, \\n2008”). It is clear, however, from the rest of the opinion, the complaint, the parties’ \\nsubmissions to the district court, and the parties’ papers on appeal that the final date of \\nsale for loans in the GP3 Trust was June 15, 2006. \\n \\n \\n \\n 18 \\n \\n \\n\\findemnification. See Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 200 (2d Cir. \\n\\n2003) (applying New York law) (quoting Hooper Assocs., Ltd. v. AGS Computs., Inc., \\n\\n74 N.Y.2d 487, 492–93 (1989)); see also Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 \\n\\n(1990) (indemnification arises when “a party held legally liable to plaintiff shifts \\n\\nthe entire loss to another”). \\n\\n Thus, under New York law, absent “unmistakably clear” language in an \\n\\nindemnification provision that demonstrates that the parties intended the clause \\n\\nto cover first‐party claims, an agreement between two parties “to indemnify” each \\n\\nother does not mean that one party’s failure to perform gives rise to a claim for \\n\\nindemnification. Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, \\n\\n21 (2d Cir. 1996); see also BNP Paribas Mortg. Corp. v. Bank of Am., N.A., 778 F. Supp. \\n\\n2d 375, 415 (S.D.N.Y. 2011) (“Unless the indemnification clause refers exclusively \\n\\nor unequivocally to claims between the indemnitor and indemnitee, the court \\n\\nmust find the agreement to be lacking evidence of the required intent to cover such \\n\\nclaims.” (internal quotation marks omitted)). Consequently, absent such language, \\n\\n“[w]here parties agree to ‘indemnify’ each other for losses incurred by a breach of \\n\\ncontract, where those lo[s]ses do not relate to liability to a third party, the \\n \\n \\n \\n 19 \\n \\n \\n\\fcharacterization of ‘indemnification’ is no more than an epithet for recovery for \\n\\nbreach of contract.” Xerox State & Local Sols., Inc. v. Xchanging Sols. (USA), Inc., 216 \\n\\nF. Supp. 3d 355, 364 (S.D.N.Y. 2016). Put simply, “[a]n action does not become \\n\\n[one] for indemnity merely because the pleader has so denominated it.” Peoples’ \\n\\nDemocratic Rep. of Yemen v. Goodpasture, Inc., 782 F.2d 346, 350 (2d Cir. 1986) \\n\\n(quoting Bunker v. Bunker, 80 A.D.2d 817, 817 (1st Dep’t 1981)) (internal quotation \\n\\nmarks omitted). \\n\\n Here, the distinction between a claim for breach of contract and one for \\n\\nindemnification is relevant in determining the timeliness of U.S. Bank’s third \\n\\nclaim. Under New York law, a cause of action for contractual indemnification \\n\\n“does not arise until liability is incurred by way of actual payment” to a third \\n\\nparty. Varo, Inc. v. Alvis PLC, 261 A.D.2d 262, 265 (1st Dep’t 1999) (internal \\n\\nquotation marks omitted); see also McDermott v. City of New York, 50 N.Y.2d 211, \\n\\n216 (1980). Therefore, if U.S. Bank is correct that it has a cause of action for \\n\\nindemnification, the third claim in the SACC was timely. If, however, U.S. Bank’s \\n\\nindemnification claim is merely a reformulation of its breach‐of‐contract claims, \\n\\n\\n\\n \\n \\n \\n 20 \\n \\n \\n\\fthe third cause of action was untimely for the same reasons as the first two causes \\n\\nof action. \\n\\n According to U.S. Bank, GreenPoint should pay for breaching the promises \\n\\nit made in the MLPAs concerning the quality of the mortgages it sold. This claim, \\n\\nU.S. Bank insists, is not the same as its breach of contract claims because “the \\n\\nparties here bargained for two separate remedies contained in two separate \\n\\nsections of the MLPAs.” Appellant Br. 28. U.S. Bank contends the third claim is \\n\\n“independent” because the indemnification provisions found in Section 9 of the \\n\\nMLPAs allow it to “pursue any and all remedies otherwise available at law or in \\n\\nequity, including, but not limited to, the right to seek damages,” J.A. 168, 270, in \\n\\naddition to the repurchase provision found in Section 8. As counsel explained at \\n\\noral argument, U.S. Bank is seeking “damages that relate to the \\n\\nmisrepresentations, so that unlike the initial claim[s], there’s an additional element \\n\\nof proof that has to be established.” Oral Arg. at 2:10–3:30. \\n\\n Had U.S. Bank paid a certificate holder for harms to the certificate holder \\n\\nstemming from GreenPoint’s breach, its claim against Greenpoint would be for \\n\\nindemnity. But the claim here seeks payment to U.S. Bank arising from \\n \\n \\n \\n 21 \\n \\n \\n\\fGreenPoint’s violations of the R & Ws that it made to U.S. Bank as Trustee. It is a \\n\\nbreach of contract claim, plain and simple. \\n\\n We reach this conclusion for two reasons. First, Section 9 of the MLPAs does \\n\\nnot “unequivocally” or in “unmistakably clear” language extend to first‐party \\n\\nclaims. See J.A. at 167–68, 270 (“[GreenPoint] agrees to indemnify [U.S. Bank] and \\n\\nhold it harmless from and against any and all claims, losses, damages, penalties, \\n\\nfines, forfeitures, legal fees and related costs, judgments, and any other costs, fees \\n\\nand expenses that [U.S. Bank] may sustain . . . [and GreenPoint] shall immediately \\n\\nnotify [U.S. Bank] if a claim is made by a third party with respect to this Agreement \\n\\nor the Mortgage Loans.”). In the absence of such language, the provision must be \\n\\nread to contemplate an actual indemnification scenario, in which U.S. Bank would \\n\\nbe entitled to repayment if it paid out costs to a third party. U.S. Bank does not \\n\\nallege that to date it has paid on claims to third parties directly tied to GreenPoint’s \\n\\nbreaches of its R & Ws. \\n\\n Second, the allegations in the SACC belie the argument that U.S. Bank is \\n\\nseeking to recover something different under its indemnification claim than what \\n\\nit seeks under the breach of contract claims. See J.A. at 1148–50, ¶ 99 (“To date, the \\n \\n \\n \\n 22 \\n \\n \\n\\fTrusts have sustained approximately $1.1 billion in aggregate collateral‐level \\n\\nlosses and damages as a result of GreenPoint’s breaches of its R & Ws and failure to \\n\\nrepurchase breaching Mortgage Loans.” (emphasis added)). The argument that \\n\\nSection 9 provides an “independent” remedy is, therefore, meritless: the \\n\\nindemnification claim cannot be “independent” if its success directly depends on \\n\\nthe breaches of the R & Ws in the MLPAs outlined in the contract claims. As the \\n\\nNew York Court of Appeals explained in ACE, even if two sections of the contract \\n\\nprovide alternative remedies for the same breach, “the underlying act the Trust \\n\\ncomplains of is the same: the quality of the loans and their conformity with the \\n\\n[R & Ws].” 25 N.Y.3d at 596. \\n\\n Thus, U.S. Bank’s “indemnification” claim is in reality a repackaged version \\n\\nof its breach of contract claims. See Goodpasture, 782 F.2d at 350. There is no \\n\\n“indemnified” party who covered a loss that should have been paid by a third‐\\n\\nparty obligor. There is thus no “independent” claim for indemnification. U.S. Bank \\n\\ncannot circumvent the statute of limitations by recasting its contract claim as one \\n\\n\\n\\n\\n \\n \\n \\n 23 \\n \\n \\n\\ffor indemnification. The district court properly dismissed the third claim as \\n\\nuntimely.14 \\n\\nIII. Cause of Action Four: Breach of the Indemnification Agreements \\n\\n In its fourth claim, raised for the first time in the SACC filed on March 3, \\n\\n2016, U.S. Bank alleges breaches of the Indemnification Agreements. These three \\n\\nagreements (separate and distinct from the indemnification clauses in the MLPAs) \\n\\nare documents the parties signed immediately before they closed on the MLPAs. \\n\\nIn them, GreenPoint independently represented that it had complied with the \\n\\nR & Ws it made in the MLPAs. All three agreements contain the same statement: \\n\\n“GreenPoint hereby represents and warrants, as of the date of the Prospectus \\n\\nSupplement, that the GreenPoint Information is true and correct in all material \\n\\n\\n\\n\\n GreenPoint also argues that this claim should be dismissed under Federal Rule of Civil \\n14\\n\\nProcedure 12(b)(1) because the FHFA did not have standing to file the summonses with \\nnotice in the first instance. U.S. Bank may not, GreenPoint argues, be substituted as the \\nreal party in interest under Federal Rule of Civil Procedure 17(a) because there was no \\n“honest mistake” in the initial naming of the plaintiff. In a letter brief it submitted to this \\nCourt pursuant to Federal Rule of Appellate Procedure 28(j), U.S. Bank directs our \\nattention to a recent opinion from this Court holding that “a plaintiff’s honest mistake is \\nnot a precondition for granting a Rule 17(a)(3) motion.” Klein ex rel. Qlik Techs., Inc. v. Qlik \\nTechs., Inc., 906 F.3d 215, 227 (2d Cir. 2018). Because we agree with the district court that \\nU.S. Bank’s claim was untimely on a different basis, we decline to address this argument. \\n \\n \\n \\n 24 \\n \\n \\n\\frespects and includes all ‘Seller Information’ as defined in the [MLPAs].” J.A. 1063 \\n\\n(GP2), 1072 (GP3), 1081 (GP4). \\n\\n According to U.S. Bank, under Federal Rule of Civil Procedure 15(c), its \\n\\nclaim for breach of the Indemnification Agreements relates back to the filing dates \\n\\nof the state court summonses with notice, therefore rendering the claim timely, at \\n\\nleast as to the GP2 and GP4 Trusts.15 We disagree. \\n\\n Rule 15(c) provides that an amendment to a pleading “relates back to the \\n\\ndate of the original pleading” where, as relevant here, “the amendment asserts a \\n\\nclaim or defense that arose out of the conduct, transaction, or occurrence set out—\\n\\nor attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). \\n\\n\\n\\n\\n15 The FHFA filed its summons with notice for the GP2 Trust on May 30, 2012, exactly six \\nyears after May 30, 2006, the date that the GP2 Indemnification Agreement was executed. \\nTherefore, if U.S. Bank’s claim were to relate back to this date, it would be timely. \\nSimilarly, the GP4 Indemnification Agreement was executed on July 28, 2006, and six \\nyears from that date was July 28, 2012, a Saturday. The time to file therefore fell on “the \\nnext succeeding business day”—Monday, July 30, 2012. See N.Y. Gen. Constr. § 25‐a(1); \\nFed. R. Civ. P. 6(a)(1). This is precisely the day that the FHFA filed its summons with \\nnotice, and, consequently, if U.S. Bank’s claim were to relate back to this date, it would \\nbe timely as well. U.S. Bank’s claim as to the GP3 Trust, however, is untimely even under \\nits “relation‐back” theory, because the GP3 Indemnification Agreement was executed on \\nJune 28, 2006, and the FHFA filed its summons with notice on June 29, 2012, one day after \\nthe statute of limitations had run. \\n \\n \\n \\n 25 \\n \\n \\n\\fThe purpose of Rule 15(c)’s relation‐back provision is “to balance the interests of \\n\\nthe defendant protected by the statute of limitations with the preference expressed \\n\\nin the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for \\n\\nresolving disputes on their merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, \\n\\n550 (2010). “[T]he central inquiry is whether adequate notice of the matters raised \\n\\nin the amended pleading has been given to the opposing party within the statute \\n\\nof limitations by the general fact situation alleged in the original pleading.” Slayton \\n\\nv. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (internal quotation marks \\n\\nomitted). \\n\\n Thus, “even where an amended complaint tracks the legal theory of the first \\n\\ncomplaint, claims that are based on an entirely distinct set of factual allegations \\n\\nwill not relate back.” Id. (internal quotation marks omitted). This includes claims \\n\\nthat are based on different contracts.16 \\n\\n\\n\\n See, e.g., 6A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure \\n16\\n\\n§ 1497 (3d ed. 2018) (“[A]mendments alleging . . . the breach of an independent \\ncontract . . . may be subject to the defense of statute of limitations because of a failure to \\nmeet the transaction standard.”); see also Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d \\n992, 994 (8th Cir. 1989); In re Rationis Enters., Inc. of Panama, 45 F. Supp. 2d 365, 367 \\n(S.D.N.Y. 1999). \\n \\n \\n \\n 26 \\n \\n \\n\\f The SACC’s allegations of breaches of the GP2 and GP4 Indemnification \\n\\nAgreements do not relate back to the filing date of the FHFA’s original pleading \\n\\nin New York Supreme Court. The original summonses with notice involved \\n\\nactions for breach of contract and declaratory relief (GP2) and breach of contract, \\n\\ndeclaratory relief, specific performance, and indemnification (GP3 and GP4) under \\n\\nthe provisions of the MLPAs. J.A. 23 (GP2), 38 (GP3), 53 (GP4). The focus of the \\n\\nsummonses was GreenPoint’s contractual obligation “to cure or repurchase from \\n\\nthe Trust[s] those mortgage loans where R & Ws have been breached.” Id. 24, 39, \\n\\n54. The summonses, in other words, contained no mention of the Indemnification \\n\\nAgreements, and sought recovery only for breaches of the R & Ws in the MLPAs, \\n\\nwhich governed the initial sale of the mortgage loans from GreenPoint to Lehman. \\n\\nAlthough the underlying R & Ws in the MLPAs and the Indemnification \\n\\nAgreements employ the same terms, we cannot conclude that GreenPoint was on \\n\\nnotice when the FHFA filed the original complaint that the litigation would also \\n\\ninvolve the Indemnification Agreements. Indeed, the FHFA had no reason to \\n\\ninclude any claims related to the Indemnification Agreements, in which it had no \\n\\ninterest and to which it was never a signatory. Those documents were intended to \\n \\n \\n \\n 27 \\n \\n \\n\\foutline the scope of GreenPoint’s obligation to indemnify Lehman and its \\n\\nsuccessors for claims brought against Lehman by third parties—not to protect \\n\\ncertificate holders (like the FHFA) from the sale of unsound securitized mortgage \\n\\nloans. \\n\\n Simply put, the original complaint and the SACC invoke separate contracts; \\n\\nthe signatories to the Indemnification Agreements and the MLPAs are different; \\n\\nand the nature of the claims and the remedies they seek are not the same. See \\n\\nASARCO LLC v. Goodwin, 756 F.3d 191, 202–03 (2d Cir. 2014); 6A Charles Alan \\n\\nWright & Arthur R. Miller, Federal Practice & Procedure § 1497 (3d ed. 2018) \\n\\n(collecting cases); see also Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \\n\\n2017 WL 1293773, at *9 (“[I]t cannot be said that based on the facts alleged in the \\n\\noriginal pleading, GreenPoint was given adequate notice that Plaintiff would \\n\\nbring claims pursuant to the Indemnification Agreements.”). The fourth cause of \\n\\naction does not relate back to the original filing for claims based on any of the \\n\\nTrusts, and that cause of action was therefore untimely asserted. \\n\\n\\n\\n\\n \\n \\n \\n 28 \\n \\n \\n\\f CONCLUSION \\n\\n The district court properly dismissed U.S. Bank’s claims as untimely. For the \\n\\nforegoing reasons, the judgment of the district court granting GreenPoint’s \\n\\nmotions for summary judgment and to dismiss is AFFIRMED.\\n\\n\\n\\n\\n \\n \\n \\n 29\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":489,"cells":{"id":{"kind":"number","value":4588716,"string":"4,588,716"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Oluwole OJUDUN, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Ojudun"},"decision_date":{"kind":"string","value":"2019-02-08"},"docket_number":{"kind":"string","value":"Docket 17-2348-cr; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Katzmann, Kearse, Meyer\", \"parties\": \"\", \"opinions\": [{\"author\": \"KEARSE, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-2348-cr\\n USA v. Ojudun\\n\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n\\n 2 FOR THE SECOND CIRCUIT\\n\\n 3 ------\\n\\n 4 August Term, 2018\\n\\n 5 (Submitted: October 24, 2018 Decided: February 8, 2019)\\n\\n 6 Docket No. 17-2348-cr\\n\\n 7 _________________________________________________________\\n\\n 8 UNITED STATES OF AMERICA,\\n\\n 9 Appellee,\\n\\n10 - v. -\\n\\n11 OLUWOLE OJUDUN,\\n\\n12 Defendant-Appellant.*\\n13 _________________________________________________________\\n\\n14 Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge**.\\n\\n\\n\\n\\n * The Clerk of Court is directed to amend the official caption to conform with the\\n above.\\n\\n ** Judge Jeffrey A. Meyer, of the United States District Court for the District of\\n Connecticut, sitting by designation.\\n\\f 1 Appeal from a judgment of the United States District Court for the\\n\\n 2 Southern District of New York, Katherine B. Forrest, then-Judge, revoking defendant\\n\\n 3 Ojudun's supervised release--imposed following his prior federal conviction for\\n\\n 4 conspiracy to commit bank fraud--on the grounds that while on such release he, inter\\n\\n 5 alia, committed two financial crimes in violation of New Jersey law and associated\\n\\n 6 with a known felon and thereby violated the conditions of release, and ordering him\\n\\n 7 to serve 30 months' imprisonment, to be followed by two years of supervised release.\\n\\n 8 On appeal, Ojudun contends principally that the court erred (1) in denying his motion\\n\\n 9 to suppress, on Fourth Amendment grounds, evidence resulting from New Jersey\\n\\n10 police officers' stop of the vehicle in which he was a passenger, and (2) in admitting,\\n\\n11 over his hearsay objection, evidence of postarrest statements made by the vehicle's\\n\\n12 driver as statements against the interest of the driver. We find no merit in Ojudun's\\n\\n13 Fourth Amendment challenges to the stop and search of the vehicle. However, we\\n\\n14 conclude that evidence of statements by the driver that incriminated Ojudun without\\n\\n15 incriminating the driver did not fall within the hearsay exception provided by Rule\\n\\n16 804(b)(3) of the Federal Rules of Evidence for statements against the interest of the\\n\\n17 declarant, and that the court did not perform the analyses required under Rule\\n\\n18 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure,\\n\\n\\n 2\\n\\f 1 in order to determine the admissibility of the declarant's other statements. We thus\\n\\n 2 vacate the judgment and remand for further proceedings.\\n\\n 3 Vacated and remanded.\\n\\n 4 GEOFFREY S. BERMAN, United States Attorney for the\\n 5 Southern District of New York, New York, New York\\n 6 (Daniel S. Noble, Anna M. Skotko, Assistant United\\n 7 States Attorneys, New York, New York, of counsel),\\n 8 for Appellee.\\n\\n 9 BENNO & ASSOCIATES, New York, New York (Ameer\\n10 Benno, New York, New York, of counsel; Adam D.\\n11 Perlmutter, Perlmutter & McGuinness, New York,\\n12 New York, of counsel on the initial brief), for\\n13 Defendant-Appellant.\\n\\n\\n\\n\\n14 KEARSE, Circuit Judge:\\n\\n15 Defendant Oluwole Ojudun appeals from a judgment of the United\\n\\n16 States District Court for the Southern District of New York, Katherine B. Forrest,\\n\\n17 then-Judge, revoking his supervised release--imposed following his prior conviction\\n\\n18 for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349--on\\n\\n19 the grounds that Ojudun violated standard conditions of release by (1) committing\\n\\n20 forgery in violation of New Jersey law, (2) committing theft by deception in violation\\n\\n21 of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without\\n\\n\\n 3\\n\\f 1 permission, and (4) associating with a known felon. The court ordered Ojudun to\\n\\n 2 serve 30 months' imprisonment, followed by two years of supervised release, to be\\n\\n 3 served consecutively to any state sentence that may be imposed. On appeal, Ojudun\\n\\n 4 challenges his convictions on charges (1), (2), and (4), contending principally that the\\n\\n 5 court erred (a) in denying his motion to suppress, on Fourth Amendment grounds,\\n\\n 6 evidence resulting from the New Jersey police officers' stop of the vehicle in which\\n\\n 7 he was a passenger, and (b) in admitting, over his motion to preclude as hearsay,\\n\\n 8 evidence of postarrest statements made about Ojudun by the vehicle's driver. For the\\n\\n 9 reasons that follow, we reject Ojudun's challenges to the officers' stop of the vehicle\\n\\n10 and the ensuing seizure of evidence. However, we conclude that statements of the\\n\\n11 driver that incriminated Ojudun without incriminating the driver were not properly,\\n\\n12 under Rule 804(b)(3) of the Federal Rules of Evidence, ruled statements against the\\n\\n13 interest of the driver, and that the district court did not perform the analyses required\\n\\n14 under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\\n\\n15 Procedure, in order to determine the admissibility of the declarant's other statements.\\n\\n16 We thus vacate the judgment and remand for further proceedings.\\n\\n\\n\\n\\n 4\\n\\f 1 I. BACKGROUND\\n\\n\\n\\n\\n 2 The present proceeding against Ojudun alleging his violations of\\n\\n 3 supervised release (\\\"VOSR\\\") arises from the January 12, 2017 stop by local police\\n\\n 4 officers in Summit, New Jersey, of a car (the \\\"Car\\\") driven by Anthony Gray, in which\\n\\n 5 Ojudun was a passenger. Ojudun moved to suppress any evidence resulting from the\\n\\n 6 stop, contending that the stop, the ensuing search of the Car, and his arrest, violated\\n\\n 7 the Fourth Amendment. As part of Ojudun's VOSR hearing, which was held in April\\n\\n 8 and June 2017, the stop and its aftermath were described principally in a suppression\\n\\n 9 hearing at which the only witness was Detective Christopher Medina of the Summit\\n\\n10 Police Department (\\\"SPD\\\"), who had participated in the stop, the search, and the\\n\\n11 subsequent arrests of Ojudun, Gray, and Jerry Cesaro, the Car's other passenger (see\\n\\n12 Part I.B. below). Medina also described his postarrest interview of Gray. That\\n\\n13 testimony and a videotape of the interview were introduced over Ojudun's hearsay\\n\\n14 objection (see Part I.C. below).\\n\\n15 Following the hearing, the district court, inter alia, found the testimony\\n\\n16 of Medina to be credible and found that his observations of the Car and Cesaro\\n\\n17 provided reasonable suspicion sufficient to justify the stop of the Car. Ojudun has not\\n\\n\\n 5\\n\\f 1 argued that any of the court's factual findings in this regard are clearly erroneous;\\n\\n 2 rather, he challenges its conclusions of law as to the constitutionality of the stop of the\\n\\n 3 Car and the ensuing search and seizures. He also challenges the court's ruling that\\n\\n 4 Gray's hearsay statements were admissible under Fed. R. Evid. Rule 804(b)(3), the\\n\\n 5 exception for statements that are contrary to the declarant's punitive interest.\\n\\n\\n\\n\\n 6 A. Ojudun's Prior Conviction\\n\\n 7 Relevant events leading to Ojudun's prior conviction are not disputed\\n\\n 8 and/or are matters of record. In 2011, the United States Postal Inspection Service\\n\\n 9 began investigating a bank fraud scheme that involved deposits of counterfeit checks\\n\\n10 at banks located in New York, New Jersey, and Connecticut. Some scheme\\n\\n11 participants would open bank accounts using their own identities and would provide\\n\\n12 their account information and personal identification numbers to other participants,\\n\\n13 who would then deposit counterfeit checks into the accounts. Thereafter, participants\\n\\n14 would obtain money from the accounts by withdrawing cash at Automated Teller\\n\\n15 Machines (\\\"ATMs\\\"), or using debit cards at retail locations, or purchasing money\\n\\n16 orders at United States Post Offices.\\n\\n\\n\\n\\n 6\\n\\f 1 Ojudun and Gray were among the participants in the scheme. Ojudun\\n\\n 2 deposited counterfeit checks and withdrew cash from ATMs and local bank branches,\\n\\n 3 and he recruited others to do so. Gray supplied scheme participants with counterfeit\\n\\n 4 checks and drove them to various banks in order to cash them.\\n\\n 5 In 2012, Gray, following his plea of guilty, was convicted of bank fraud.\\n\\n 6 He was sentenced principally to time served, plus three years of supervised release.\\n\\n 7 In 2014, Ojudun was convicted, following his plea of guilty, of conspiracy to commit\\n\\n 8 bank fraud. He was sentenced to 40 months' imprisonment, to be followed by three\\n\\n 9 years of supervised release. Ojudun's three-year supervised-release term began upon\\n\\n10 his release from prison in May 2016.\\n\\n\\n\\n\\n11 B. SPD's January 2017 Stop of the Car and Arrest of Ojudun\\n\\n12 Medina's testimony at the suppression hearing included the following.\\n\\n\\n\\n\\n13 1. The Stop\\n\\n14 Around noon on January 12, 2017, Medina and SPD Detective Sergeant\\n\\n15 Mike Treiber (the \\\"Officers\\\") were driving in the center of Summit, a town in which\\n\\n16 the vast majority of the cars were registered in New Jersey, when they noticed the\\n\\n\\n 7\\n\\f 1 Car, a black BMW with New York license plates, drive about 100 feet past a Chase\\n\\n 2 Bank branch and double park. (See Hearing Transcript, April 19, 2017 (\\\"April Tr.\\\"),\\n\\n 3 at 20-24.) A \\\"disheveled looking\\\" white male--later identified as Cesaro--whose gaunt\\n\\n 4 face, dirty clothing, and general appearance were, in Medina's experience, \\\"consistent\\n\\n 5 with somebody who uses drugs\\\" (id. at 24), exited the Car, \\\"meander[ed]\\\" toward the\\n\\n 6 bank, walking diagonally in the street rather than crossing and using the sidewalk\\n\\n 7 (Hearing Transcript, June 16, 2017 (\\\"June Tr.\\\"), at 44; see id. at 50-51), and entered the\\n\\n 8 rear door to the bank (see April Tr. 29). The Car drove off; the Officers, whose\\n\\n 9 suspicions were aroused as to the possibility of bank fraud or narcotics trafficking,\\n\\n10 promptly parked in the first parking spot in the bank's parking lot--one of several\\n\\n11 available spaces--and watched the bank's rear entrance. They saw Cesaro exit the\\n\\n12 bank, and at about the same time saw the Car reappear and again drive about 100 feet\\n\\n13 past the bank, and stop. Cesaro, again walking diagonally in the street rather than\\n\\n14 crossing to use the sidewalk, entered the Car, which drove off after remaining\\n\\n15 stationary for some 30-60 seconds. (See id. at 28-31; June Tr. 55-58.)\\n\\n16 The Officers followed for a time, then signaled the Car to pull over and\\n\\n17 stop.\\n\\n\\n\\n\\n 8\\n\\f 1 2. The Questioning, the Search, and the Arrests\\n\\n 2 After the Car stopped, Medina went to the passenger side, identified\\n\\n 3 himself as an SPD detective, and asked the driver--Gray--for credentials. Gray\\n\\n 4 produced a registration, an insurance card, and his driver's license, but as he was\\n\\n 5 rummaging for the documents, Medina asked how the men had wound up in\\n\\n 6 Summit; Gray responded that they had taken a wrong exit and had gotten lost trying\\n\\n 7 to go to the mall in nearby Short Hills, New Jersey. (See April Tr. 36; June Tr. 78.)\\n\\n 8 Medina then asked how they all knew each other; Gray said the front seat passenger--\\n\\n 9 who was Ojudun--was his friend and that the back seat passenger was his \\\"uncle.\\\"\\n\\n10 (April Tr. 36.) But when Medina asked what Gray's uncle's name was, Gray just said\\n\\n11 \\\"What?\\\" which Medina's training and experience caused him to view as a stalling\\n\\n12 tactic--a view enhanced by Cesaro's appearance and his odd path to and from the\\n\\n13 bank, as well as by the driver's failure to avail himself of any of the empty spaces in\\n\\n14 the bank's parking lot or to stop in front of the bank to drop Cesaro off or pick him\\n\\n15 up, instead of twice proceeding 100 feet past the bank. Upon Gray's apparently\\n\\n16 evasive response, Medina told Cesaro to get out of the Car.\\n\\n17 Medina took Cesaro to the rear of the Car and attempted to have him\\n\\n18 place his hands on the rear of the Car. Cesaro instead resisted, kept one hand in his\\n\\n\\n 9\\n\\f 1 pocket, and elbowed Medina in the ribs. Medina grabbed Cesaro and threw him to\\n\\n 2 the ground. While subduing Cesaro, Medina saw the Car's brake lights flare and,\\n\\n 3 fearing that the Car was about to either flee or back over him, yelled a warning to\\n\\n 4 Treiber. Treiber pulled his pistol and pointed it toward Gray, telling him to turn off\\n\\n 5 the engine, and summoned backup police officers.\\n\\n 6 When more officers arrived a few minutes later, Treiber holstered his\\n\\n 7 gun, and Gray and Ojudun were taken out of the Car. Cesaro was placed under\\n\\n 8 arrest for assaulting Medina and was searched incident to that arrest. (See June\\n\\n 9 Tr. 17.) In Cesaro's pockets, Medina found, inter alia, the remnants of a crack pipe that\\n\\n10 had broken when Cesaro was taken to the ground; a credit card in the name of one\\n\\n11 Frank Langendorf (see id. at 26); a New York State prison inmate identification card\\n\\n12 bearing Cesaro's name and picture (see April Tr. 40-41); and a Pennsylvania driver's\\n\\n13 license in Langendorf's name but bearing a picture of Cesaro (see id. at 41). One of the\\n\\n14 backup SPD officers took a cell-phone photograph of Cesaro and went into the bank\\n\\n15 with it to determine what Cesaro had done there.\\n\\n16 Meanwhile, Medina asked Gray, as the Car's driver, whether he would\\n\\n17 consent to a search of the Car. Neither Gray nor Ojudun had been arrested at this\\n\\n18 point. (See June Tr. 17.) Gray gave his consent.\\n\\n\\n 10\\n\\f 1 When, in a normal speaking voice, Medina asked Gray for consent to\\n\\n 2 search the Car, Ojudun--seated on the curb at the rear of the car--was no more than\\n\\n 3 five feet away; and at no point did Ojudun reveal that the Car belonged to his\\n\\n 4 girlfriend, or state that Gray was not authorized to drive it or to consent to its search,\\n\\n 5 or say that Ojudun himself objected to the search. After Gray gave his consent,\\n\\n 6 Medina, at the rear of the car to search the trunk, told Gray that he could have the\\n\\n 7 search halted at any time if he chose. Ojudun, still seated on the curb at the rear of\\n\\n 8 the Car, said nothing. (See June Tr. 18-19.) No one present suggested that Gray\\n\\n 9 lacked authority to consent to a search. (See id. at 19; April Tr. 44-46.)\\n\\n10 In searching the Car, officers immediately found, on the seat that had\\n\\n11 been occupied by Ojudun, an envelope containing two checks made payable to Frank\\n\\n12 Langendorf. (See June Tr. 18.) In the meantime, the officer who had taken Cesaro's\\n\\n13 picture to show to bank employees learned that Cesaro had cashed a $2,845.46 check\\n\\n14 that was payable to Frank Langendorf and had displayed a Pennsylvania driver's\\n\\n15 license in that name. (See id. at 19-21.) Based on the discovery of the two Langendorf\\n\\n16 checks on Ojudun's seat and the information provided by the bank as to the\\n\\n17 Langendorf check just cashed by Cesaro, the officers then \\\"placed everybody under\\n\\n18 arrest.\\\" (Id. at 24-25.)\\n\\n\\n 11\\n\\f 1 When Ojudun was searched incident to his arrest, the officers found that\\n\\n 2 he had cash in two pockets. In one, he had $233 in worn bills that looked to have\\n\\n 3 been in circulation for some time. (See id. at 25-26.) In the other, he had fresh bills\\n\\n 4 totaling exactly $2,845. (See id. at 25.)\\n\\n 5 In the continuing search of the Car, officers found in the center console\\n\\n 6 an envelope containing pedigree information for Langendorf. They also found a\\n\\n 7 paper that contained \\\"what looked to be practicing of signatures of Mr. [F]rank\\n\\n 8 Langendorf which matched the endorsed portion of the check cashed by Mr. Cesaro.\\\"\\n\\n 9 (June Tr. 26). SPD officers contacted the police department in nearby Millburn, New\\n\\n10 Jersey, where Langendorf resided, and learned that he had several times complained\\n\\n11 of identity theft. Millburn police arrived at the scene of the arrests in Summit and\\n\\n12 confirmed that the occupants of the Car possessed information belonging to the real\\n\\n13 Frank Langendorf.\\n\\n\\n\\n\\n14 C. Gray's Postarrest Statements Incriminating Ojudun\\n\\n15 At SPD headquarters, Medina conducted an interview of Gray, which\\n\\n16 was videotaped. As described in greater detail in Part II.B. below, after initially\\n\\n17 denying all knowledge of a fraud scheme, Gray eventually admitted that he had been\\n\\n\\n 12\\n\\f 1 promised $100 by Cesaro to drive Ojudun and Cesaro to the bank in order to cash a\\n\\n 2 check. Gray said he saw Ojudun give the check to Cesaro to take into the bank.\\n\\n 3 Although Gray had waived his Miranda rights for the interview, it was\\n\\n 4 established at the VOSR hearing that he would be unavailable to testify because of his\\n\\n 5 assertion of his Fifth Amendment privilege against self-incrimination. (See June\\n\\n 6 Tr. 4-5.) Ojudun moved to exclude any evidence as to Gray's statements as hearsay.\\n\\n\\n\\n\\n 7 D. The District Court's Rulings\\n\\n 8 1. On the Challenge to the Stop\\n\\n 9 At the close of the June hearing, the district court denied Ojudun's\\n\\n10 motion to suppress evidence seized as a result of the stop of the Car. It found\\n\\n11 Medina's testimony to be \\\"very credible\\\" and concluded, based on the totality of the\\n\\n12 circumstances, that the \\\"accumulation of facts\\\" resulting from the Officers'\\n\\n13 observations of, inter alia, the unusual movements of the Car and of Cesaro--described\\n\\n14 in Part I.B.1. above--provided a \\\"very solid basis\\\" for reasonable suspicion to support\\n\\n15 the initial stop of the Car. (June Tr. 108). The court stated that its conclusion was \\\"not\\n\\n16 based upon one fact but based upon an accumulation of facts . . . in their totality . . . .\\\"\\n\\n17 (Id. at 108-09.)\\n\\n\\n 13\\n\\f 1 2. On the Challenge to the Search for Lack of Consent\\n\\n 2 Just prior to the start of the suppression hearing, Ojudun filed a\\n\\n 3 declaration challenging the government's position that there had been a valid consent\\n\\n 4 to search the Car. Ojudun presented evidence that the Car belonged to his girlfriend,\\n\\n 5 stated that he had not consented to the search, and offered to call his girlfriend to\\n\\n 6 testify that she had not authorized Gray to drive her car or to consent to its search.\\n\\n 7 The government conceded with respect to ownership and the fact that the owner and\\n\\n 8 Ojudun did not give consent. (See April Tr. 13.) The district court noted that the\\n\\n 9 question remained whether Gray had apparent authority to consent to a search and\\n\\n10 whether it was reasonable for the Officers to believe he had authority.\\n\\n11 After the suppression hearing, the court found \\\"no information to\\n\\n12 suggest that Gray was not in control of the vehicle and didn't have apparent authority\\n\\n13 over [it].\\\" (June Tr. at 110.) Even though Gray was not the Car's owner, the court\\n\\n14 found that he had apparent authority and control over it, as he was driving it when\\n\\n15 it was first seen stopping at the bank, when it had rounded the block and returned to\\n\\n16 the bank, and when it was driven away after picking up Cesaro. Although Medina\\n\\n17 could have learned by examining the Car's registration that it belonged to someone\\n\\n18 other than Gray, the court concluded that that information would not have dispelled\\n\\n\\n 14\\n\\f 1 the appearance that Gray was authorized to drive and exercise control over the Car.\\n\\n 2 Gray gave Medina the requested documents (see, e.g., Ojudun brief on appeal at 22\\n\\n 3 (the Car's registration \\\"w[as] immediately handed over\\\")) without providing any\\n\\n 4 indication that he did not have permission or authority to use or exercise dominion\\n\\n 5 over the Car. And when requested, he promptly gave his consent to the search,\\n\\n 6 giving no indication that he lacked authority to do so.\\n\\n 7 Ojudun himself during the events of January 12 made no mention of the\\n\\n 8 fact that the Car was owned by his girlfriend; he did not in any way indicate that\\n\\n 9 Gray lacked permission to drive the Car, or to exercise full authority over it, or to\\n\\n10 consent to its search. The district court found that Ojudun \\\"was in sufficient\\n\\n11 proximity\\\" to hear, inter alia, both Medina's request that Gray consent to a search and\\n\\n12 Medina's ensuing statements to Gray that, even having given his consent, Gray could\\n\\n13 have the search terminated at any time; the court found that \\\"there was no[]\\n\\n14 suggestion by . . . Ojudun or anyone that Mr. Gray did not have authority to consent\\n\\n15 to search . . . .\\\" (June Tr. 113.) The court concluded that Medina had reasonably relied\\n\\n16 on Gray's apparent authority to consent to the vehicle search. (See id. at 110-13; June\\n\\n17 23, 2017 Endorsement Order confirming oral ruling.)\\n\\n\\n\\n\\n 15\\n\\f 1 3. The Admission of Gray's Postarrest Statements\\n\\n 2 At the start of the June session of the VOSR hearing, the district court\\n\\n 3 denied Ojudun's motion to exclude evidence of Gray's interview statements to\\n\\n 4 Medina. The court ruled that all of Gray's statements were within the Rule 804(b)(3)\\n\\n 5 exception for statements against the declarant's penal interest. (See Part II.B. below.)\\n\\n\\n\\n\\n 6 II. DISCUSSION\\n\\n\\n\\n\\n 7 On appeal, Ojudun contends that the district court erred (A) in denying\\n\\n 8 his Fourth Amendment motion to suppress on the grounds that the Officers lacked\\n\\n 9 reasonable suspicion to stop the Car and that Gray lacked authority to consent to the\\n\\n10 search, and (B) in concluding that Gray's hearsay statements incriminating Ojudun\\n\\n11 were admissible under Rule 804(b)(3) as statements against Gray's interest. We reject\\n\\n12 Ojudun's Fourth Amendment contentions but find merit in his Rule 804(b)(3)\\n\\n13 challenge.\\n\\n\\n\\n\\n14 A. The Fourth Amendment Challenges to the Stop and the Search\\n\\n15 Ojudun's contentions that the district court erred in rejecting his Fourth\\n\\n\\n 16\\n\\f 1 Amendment challenges to the stop and search of the Car do not require extended\\n\\n 2 discussion. In considering challenges to the denial of a suppression motion, we\\n\\n 3 review the district court's factual findings for clear error and its conclusions of law de\\n\\n 4 novo. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.), cert. denied, 135\\n\\n 5 S. Ct. 301 (2014). Ojudun has not argued that any of the court's factual findings\\n\\n 6 described in Part I.D. above are clearly erroneous; and we see no error of law.\\n\\n 7 It is well established that, consistent with the Fourth Amendment, a\\n\\n 8 \\\"government law enforcement agent may subject an individual to an investigative\\n\\n 9 stop upon a reasonable suspicion that the individual is, has been, or is about to be\\n\\n10 engaged in criminal activity. . . . The agent is said to have a reasonable suspicion\\n\\n11 when he is in possession of 'specific and articulable facts which, taken together with\\n\\n12 rational inferences from those facts, reasonably warrant [the] intrusion.'\\\" United States\\n\\n13 v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968));\\n\\n14 see generally United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975) (the\\n\\n15 interception of a moving vehicle, causing it to stop for questioning, is not so intrusive\\n\\n16 that probable cause is required, so long as it is supported by specific articulable facts\\n\\n17 that, together with rational inferences from those facts, reasonably warrant suspicion\\n\\n18 that the vehicle contains persons who are engaging in or are about to engage in\\n\\n\\n 17\\n\\f 1 unlawful activity). The \\\"touchstone of the Fourth Amendment is reasonableness.\\\"\\n\\n 2 Florida v. Jimeno, 500 U.S. 248, 250 (1991). \\\"Reasonableness, in turn, is measured in\\n\\n 3 objective terms by examining the totality of the circumstances.\\\" Ohio v. Robinette, 519\\n\\n 4 U.S. 33, 39 (1996).\\n\\n 5 As described in Part I.D.1. above, the district court applied these\\n\\n 6 principles in evaluating the Officers' assessment of their observations of the unusual\\n\\n 7 conduct described in Part I.B. above. We see no error in the court's conclusion that\\n\\n 8 the stop of the Car was supported by reasonable suspicion, and we affirm the denial\\n\\n 9 of Ojudun's challenge to the stop substantially for the reasons stated by the district\\n\\n10 court.\\n\\n11 Although Ojudun makes an additional argument that the record does not\\n\\n12 support a finding that the Officers had reason to stop the Car for a violation of local\\n\\n13 traffic laws, we need not address that argument, as the district court sufficiently\\n\\n14 rested its decision on the ground described above.\\n\\n15 It is also well established that the Fourth Amendment does not forbid a\\n\\n16 warrantless search of private property pursuant to consent, voluntarily given, by the\\n\\n17 owner of the property, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), or\\n\\n18 by \\\"another person who has authority to consent by reason of that person's 'common\\n\\n\\n 18\\n\\f 1 authority over or other sufficient relationship to the premises,'\\\" United States v. McGee,\\n\\n 2 564 F.3d 136, 138 (2d Cir. 2009) (\\\"McGee\\\") (quoting United States v. Matlock, 415 U.S.\\n\\n 3 164, 171 (1974)), or by a person who in fact lacked authority to consent but who\\n\\n 4 \\\"reasonably appeared to the police to possess authority to consent to the search,\\\"\\n\\n 5 McGee, 564 F.3d at 139. The requirement imposed by the Fourth Amendment's\\n\\n 6 touchstone of reasonableness \\\"is not that the[ officers] always be correct, but that they\\n\\n 7 always be reasonable.\\\" Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Thus, where\\n\\n 8 the person who gave consent did not have actual authority, the question is \\\"whether\\n\\n 9 the officers reasonably believed that [he] had the authority to consent.\\\" Id. at 189.\\n\\n10 In challenging the district court's conclusion that Gray had apparent\\n\\n11 authority to consent to the search of the Car and that it was reasonable for the Officers\\n\\n12 to believe that he had authority, Ojudun argues that \\\"no reasonable officer in\\n\\n13 Medina's position would have assumed that Gray had . . . authority\\\" to consent to a\\n\\n14 search (Ojudun brief on appeal at 22); but he points to no evidence other than the fact\\n\\n15 that the Car's registration was in a name other than that of Gray. While Ojudun states\\n\\n16 that \\\"Gray had only temporary access to the vehicle, . . . could not regularly access the\\n\\n17 vehicle, . . . and did not have permission to drive the vehicle\\\" (id.), not one of those\\n\\n18 limitations was observable by the Officers, and, as the district court found (see Part\\n\\n\\n 19\\n\\f 1 I.D.2. above), none was hinted at by Ojudun on January 12. Gray was the only person\\n\\n 2 the Officers observed driving the Car; when asked for license and registration, Gray\\n\\n 3 \\\"immediately handed [them] over\\\" (Ojudun brief on appeal at 22); and although\\n\\n 4 Gray's consent to search the car was requested and discussed within earshot of at\\n\\n 5 least Ojudun, none of the occupants of the car suggested in any manner that Gray, the\\n\\n 6 driver, lacked authority to consent to a search. We conclude that the district court did\\n\\n 7 not err in ruling that it was reasonable for the Officers to believe that Gray had such\\n\\n 8 authority.\\n\\n\\n\\n\\n 9 B. The Challenge to the Admission of Gray's Postarrest Statements\\n\\n10 Gray's postarrest interview by Medina was some 27 minutes long. At the\\n\\n11 beginning, Gray claimed that he had come to New Jersey simply to visit an outlet at\\n\\n12 the Short Hills mall that sold new or lightly used sneakers. For approximately the\\n\\n13 first half of the interview, Gray denied his involvement in any fraudulent scheme and\\n\\n14 persisted in proclaiming that single benign purpose. However, as Medina testified,\\n\\n15 Gray eventually conceded \\\"that he knew that they were leaving the Bronx to come to\\n\\n16 that bank and that they were going to cash the check\\\" (June Tr. 32).\\n\\n\\n\\n\\n 20\\n\\f 1 1. Gray's Videotaped Statement\\n\\n 2 The videotape reveals that Gray said he became the driver for the\\n\\n 3 January 12 trip because he was a professional driver and preferred driving to being\\n\\n 4 driven. And although he said he had never heard of Ojudun or Cesaro engaging in\\n\\n 5 fraudulent banking activity before, Gray eventually admitted that he had known from\\n\\n 6 the start of the trip that Ojudun's and Cesaro's intentions were to cash a check at the\\n\\n 7 bank in Summit. (Gray also said near the start of the interview that he had never\\n\\n 8 been involved previously in any activity of this sort; but toward the end he admitted\\n\\n 9 that he had previously been \\\"arrested\\\" for this kind of conduct. See generally Part I.A.\\n\\n10 above.) Gray said that Ojudun had called him on the morning of January 12 to make\\n\\n11 plans to drive to New Jersey, that Ojudun already had possession of Ojudun's\\n\\n12 girlfriend's car, and that Cesaro promised to pay Gray $100 to drive.\\n\\n13 Gray said he knew when he got into the Car that the plan was to go to\\n\\n14 Summit to cash a check. He said, however, that he had no conversation with Ojudun\\n\\n15 or Cesaro as to the banking aspects of the trip; that he did not participate in selecting\\n\\n16 the bank at which the check would be cashed and did not know why the bank in\\n\\n17 question had been chosen; that he did not know the source of the checks or how\\n\\n18 many such checks were in the Car; that he did not know the provenance of Cesaro's\\n\\n\\n 21\\n\\f 1 identification; that he did not know how much money Cesaro or Ojudun respectively\\n\\n 2 would receive from the check; and that he did not see, or know that, Cesaro gave\\n\\n 3 Ojudun money from the cashed check.\\n\\n 4 Gray said that when he stopped the Car to let Cesaro get out to go to the\\n\\n 5 bank, he saw Ojudun give Cesaro a check. Gray said he did not know exactly what\\n\\n 6 Cesaro was going to do in the bank once Gray dropped him off, although he knew the\\n\\n 7 general plan was to cash a check. Gray said he was not paying close attention to the\\n\\n 8 scheme because his principal purpose in driving to Summit was to look at sneakers\\n\\n 9 at the mall. He said he only knew they were to go to the mall after the check was\\n\\n10 cashed.\\n\\n\\n\\n\\n11 2. The District Court's Ruling\\n\\n12 Over Ojudun's objection that the evidence of Gray's statements was\\n\\n13 hearsay, the district court admitted the videotaped interview, and Medina's\\n\\n14 description of it, ruling that it fell within Fed. R. Evid. 804(b)(3)'s exception for\\n\\n15 statements against the declarant's punitive interest. The court reasoned as follows:\\n\\n16 When somebody is sitting there, while it is true that Mr. Gray\\n17 starts off talking to the interviewing officer and pushing back\\n18 about any involvement, eventually, he concedes involvement, though\\n19 he does, I agree, try to push more involvement off on others than he\\n 22\\n\\f 1 accepts for himself. But he puts himself there and he starts to concede\\n 2 some of the relevant facts. That at the very least is a statement\\n 3 against interest for a conspiracy claim. So it doesn't have to be\\n 4 what is actually charged for it to be a statement against interest\\n 5 but he is putting himself in the vicinity and in the circumstances\\n 6 where he's driving somebody in this car cause he knows how to\\n 7 drive to a location where he understands there's going to be bank fraud.\\n 8 So now while he may say, hey, I wasn't the really, the bad doer--\\n 9 and I'm summarizing . . . . [t]hat is a statement certainly against\\n10 his interest. He could not have thought that that statement was\\n11 something that could not result in a potential criminal penalty.\\n12 Perhaps a lesser criminal penalty than others might have suffered\\n13 or feared but a statement as against interest can be construed at\\n14 the level of a violation. But here we are not even talking about\\n15 that. We're talking some form of criminal conduct that would be\\n16 well above that level.\\n\\n17 (June Tr. 5-6 (emphases added).)\\n\\n18 Although a district court's decision to admit evidence is reviewed for\\n\\n19 abuse of discretion, see, e.g., United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004)\\n\\n20 (\\\"Saget\\\"), cert. denied, 543 U.S. 1079 (2005); United States v. Jones, 299 F.3d 103, 112 (2d\\n\\n21 Cir. 2002); United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998), the court \\\"abuses or\\n\\n22 exceeds the discretion accorded to it when (1) its decision rests on [(a)] an error of law\\n\\n23 (such as application of the wrong legal principle) or [(b)] a clearly erroneous factual\\n\\n24 finding, or (2) its decision . . . cannot be located within the range of permissible\\n\\n25 decisions,\\\" Jones, 299 F.3d at 112 (internal quotation marks omitted). In light of the\\n\\n\\n\\n 23\\n\\f 1 following legal principles, we have several difficulties with the court's decision in this\\n\\n 2 case.\\n\\n\\n\\n\\n 3 3. Statements Against Penal Interest\\n\\n 4 Rule 804 provides that the hearsay rule does not exclude evidence of a\\n\\n 5 statement against an unavailable declarant's penal interest if the\\n\\n 6 statement [is one] that:\\n\\n 7 (A) a reasonable person in the declarant's position would have\\n 8 made only if the person believed it to be true because, when made, it . . .\\n 9 had so great a tendency . . . to expose the declarant to . . . criminal\\n10 liability; and\\n\\n11 (B) is supported by corroborating circumstances that clearly\\n12 indicate its trustworthiness, if it is offered in a criminal case as one that\\n13 tends to expose the declarant to criminal liability.\\n\\n14 Fed. R. Evid. 804(b)(3). The threshold questions are whether the offered \\\"statement\\\"\\n\\n15 of the declarant would be perceived by \\\"a reasonable person in the declarant's shoes\\\"\\n\\n16 to be \\\"detrimental to his or her own penal interest,\\\" Saget, 377 F.3d at 231.\\n\\n17 First, although the word \\\"statement\\\" might be read broadly to refer to a\\n\\n18 declarant's \\\"entire confession,\\\" Williamson v. United States, 512 U.S. 594, 599 (1994), it\\n\\n19 must instead, in light of the principles underlying the Rule, be construed to refer to,\\n\\n20 and to require assessment of, each assertion individually, see id. at 600-01.\\n 24\\n\\f 1 Rule 804(b)(3) is founded on the commonsense notion that reasonable\\n 2 people, even reasonable people who are not especially honest, tend not to\\n 3 make self-inculpatory statements unless they believe them to be true.\\n 4 This notion simply does not extend to the broader definition of\\n 5 \\\"statement.\\\" The fact that a person is making a broadly self-inculpatory\\n 6 confession does not make more credible the confession's non-self-\\n 7 inculpatory parts. One of the most effective ways to lie is to mix\\n 8 falsehood with truth . . . .\\n\\n 9 Id. at 559-600 (emphases added). Thus,\\n\\n10 [t]he district court may not just assume for purposes of Rule 804(b)(3)\\n11 that a statement is self-inculpatory because it is part of a fuller\\n12 confession, and this is especially true when the statement implicates\\n13 someone else. \\\"[T]he arrest statements of a codefendant have\\n14 traditionally been viewed with special suspicion. Due to his strong\\n15 motivation to implicate the defendant and to exonerate himself, a\\n16 codefendant's statements about what the defendant said or did are less\\n17 credible than ordinary hearsay evidence.\\\"\\n\\n18 Williamson, 512 U.S. at 601 (quoting Lee v. Illinois, 476 U.S. 530, 541 (1986) (emphases\\n\\n19 ours)).\\n\\n20 Second, as to any particular statement, \\\"[t]he question under Rule\\n\\n21 804(b)(3) is always,\\\" in light of all surrounding circumstances, \\\"whether the statement\\n\\n22 was sufficiently against the declarant's penal interest that a reasonable person in the\\n\\n23 declarant's position would not have made the statement unless believing it to be true.\\\"\\n\\n24 Id. at 603-04 (internal quotation marks omitted) (emphasis added). Thus, while some\\n\\n25 parts of a declarant's statement may be clearly self-incriminatory, \\\"other parts, . . .\\n\\n 25\\n\\f 1 especially the parts that implicated [the defendant, and] did little to subject [the\\n\\n 2 declarant] himself to criminal liability,\\\" are not within the scope of Rule 804(b)(3)(A).\\n\\n 3 Id. at 604; see id. (\\\"A reasonable person in [the declarant's] position might even think\\n\\n 4 that implicating someone else would decrease his practical exposure to criminal\\n\\n 5 liability, at least so far as sentencing goes. Small fish in a big conspiracy often get\\n\\n 6 shorter sentences than people who are running the whole show, . . . especially if the\\n\\n 7 small fish are willing to help the authorities catch the big ones.\\\"). Accordingly, the\\n\\n 8 court must \\\"inquire[] whether each of the statements in [the declarant's] confession\\n\\n 9 was truly self-inculpatory.\\\" Id. (emphases added). A particular statement by the\\n\\n10 declarant is not within \\\"the penal interest exception\\\" if it incriminated the defendant\\n\\n11 \\\"exclusively.\\\" United States v. Wexler, 522 F.3d 194, 202-03 (2d Cir. 2008).\\n\\n12 In light of these principles, we have several difficulties with the district\\n\\n13 court's treatment of the Gray interview. First, the court did not focus on each of his\\n\\n14 statements individually to determine which of them would reasonably have been\\n\\n15 viewed as so exposing him to criminal liability as to fall within Rule 804(b)(3)(A).\\n\\n16 Rather, as shown above, the court commented generally on Gray's statement as a\\n\\n17 whole. To be sure, several of his statements were plainly contrary to his own penal\\n\\n18 interest. He admitted--eventually--that he knew when he got into the Car at the start\\n\\n\\n 26\\n\\f 1 of the trip that the plan was to go to the bank in Summit to cash a check, and he\\n\\n 2 admitted that he was going to be paid $100 by Cesaro to drive Ojudun and Cesaro\\n\\n 3 there. These statements were contrary to Gray's punitive interest, as the district court\\n\\n 4 correctly noted that admitting to \\\"driving somebody in this car . . . to a location where\\n\\n 5 he understands there's going to be bank fraud\\\" (June Tr. 5 (emphasis added))\\n\\n 6 provided evidence that could lead to Gray's conviction for conspiracy to commit\\n\\n 7 financial fraud. The fact that these statements also tended to implicate Ojudun, who\\n\\n 8 had procured the Car, and Cesaro, who had cashed the check, did not lessen their\\n\\n 9 detriment to Gray's interest because his statement was evidence of his foreknowledge\\n\\n10 of and assistance in the commission of the crime. But these statements were but a\\n\\n11 small part of Gray's overall interview.\\n\\n12 Second, the court did not at all address the Gray statement that was most\\n\\n13 damaging to Ojudun, Cesaro having been the person who promised Gray $100 and\\n\\n14 physically cashed the counterfeit check. Gray said that when he stopped the Car to\\n\\n15 let Cesaro out to go to the bank, Ojudun gave Cesaro the check. This was a statement\\n\\n16 that tied Ojudun squarely to the execution of the fraud, without in any way further\\n\\n17 implicating Gray. We cannot say that this statement fell within the scope of Rule\\n\\n18 804(b)(3)(A).\\n\\n\\n 27\\n\\f 1 Third, even where the court has properly found that a particular\\n\\n 2 statement is against the declarant's own penal interest within the meaning of Rule\\n\\n 3 804(b)(3)(A), the court must then determine whether there are \\\"corroborating\\n\\n 4 circumstances that clearly indicate,\\\" Fed. R. Evid. 804(b)(3)(B), \\\"both the declarant's\\n\\n 5 trustworthiness and the truth of the statement,\\\" United States v. Lumpkin, 192 F.3d 280,\\n\\n 6 287 (2d Cir. 1999). For those conditions to be satisfied, \\\"the inference of\\n\\n 7 trustworthiness from the proffered 'corroborating circumstances' must be strong, not\\n\\n 8 merely allowable.\\\" United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484\\n\\n 9 U.S. 966 (1987).\\n\\n10 Here, most of Gray's statements, made to a law enforcement official,\\n\\n11 were designed to minimize his involvement in the planned fraud and to deflect\\n\\n12 responsibility onto Ojudun and Cesaro. Even after he abandoned his initial claim of\\n\\n13 total innocence, he claimed, as detailed in Part II.B.1. above, total ignorance about,\\n\\n14 inter alia, bank selection, the presence of counterfeit checks in the Car, cash in the Car,\\n\\n15 provenance of fraudulent identifications, division of proceeds, and the source of the\\n\\n16 checks. The thrust of Gray's statements, once Medina persuaded him that it would\\n\\n17 be in his interest to abandon his claim of innocence, was that he knew Ojudun and\\n\\n18 Cesaro planned to cash a check. The record does not indicate that the district court\\n\\n\\n 28\\n\\f 1 made any inquiry as to whether there were corroborating circumstances to indicate\\n\\n 2 clearly that such of Gray's statements as fell within Rule 804(b)(3)(A) were\\n\\n 3 trustworthy to the extent that they were made to a law enforcement official and\\n\\n 4 sought to deflect responsibility onto Ojudun.\\n\\n 5 In sum, we conclude that the district court, in holding Gray's entire set\\n\\n 6 of statements to be within the scope of Rule 804(b)(3), erred in failing to make a\\n\\n 7 particularized assessment of the various individual assertions, in failing to determine\\n\\n 8 whether the relevant assertions were sufficiently corroborated as required by Rule\\n\\n 9 804(b)(3)(B), and in failing to recognize that the Gray statement that was most\\n\\n10 damaging to Ojudun was not within Rule 804(b)(3) because it did not implicate Gray\\n\\n11 at all.\\n\\n12 Although the government contends that any error with respect to the\\n\\n13 admission of Gray's post-arrest statement was harmless, we disagree. The district\\n\\n14 court stated that \\\"[t]he post arrest statement of Mr. Gray indicates that Mr. Gray knew\\n\\n15 that the check would be given from Mr. Ojudun to Mr. Cesaro and that Mr. Cesaro\\n\\n16 then we know as a matter of fact exited the vehicle, went into the bank and passed the\\n\\n17 check.\\\" (June Tr. 114.) In view of the district court's reliance on a portion of Gray's\\n\\n\\n\\n 29\\n\\f 1 statement that was not against his penal interest, the error under Rule 804(b)(3) was\\n\\n 2 not harmless.\\n\\n 3 Accordingly, we vacate the judgment and remand for the court to\\n\\n 4 conduct the required particularized analyses. The court should determine which of\\n\\n 5 Gray's statements could properly be admitted under Rule 804(b)(3), and in light of the\\n\\n 6 admissible evidence, determine whether the VOSR charges against Ojudun have been\\n\\n 7 established by a preponderance of the evidence.\\n\\n\\n\\n\\n 8 4. Rule 32.1 of the Federal Rules of Criminal Procedure\\n\\n 9 Finally, we note that, as to such of Gray's statements as are not within the\\n\\n10 scope of Evidence Rule 804(b)(3), the court may consider whether they may properly\\n\\n11 be admitted instead pursuant to Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\\n\\n12 Procedure. While the Sixth Amendment right of confrontation that is applicable in\\n\\n13 a criminal trial does not apply in a proceeding for probation revocation, parole\\n\\n14 revocation, or revocation of supervised release because such a proceeding \\\"is not a\\n\\n15 stage of a criminal prosecution,\\\" United States v. Aspinall, 389 F.3d 332, 342 (2d Cir.\\n\\n16 2004) (\\\"Aspinall\\\") (supervised release) (internal quotation marks omitted), abrogated\\n\\n\\n\\n 30\\n\\f 1 on other grounds by United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); see\\n\\n 2 Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole); Gagnon v. Scarpelli, 411 U.S. 778,\\n\\n 3 782 (1973) (probation), the accused in such a revocation proceeding enjoys certain\\n\\n 4 protections under principles of due process, such as \\\"the right to confront and cross-\\n\\n 5 examine adverse witnesses (unless the hearing officer specifically finds good cause\\n\\n 6 for not allowing confrontation),\\\" Morrissey, 408 U.S. at 489.\\n\\n 7 This more limited right of confrontation is embodied in the Criminal\\n\\n 8 Rules provision that the defendant in a revocation hearing \\\"is entitled to . . . an\\n\\n 9 opportunity to . . . question any adverse witness unless the court determines that the\\n\\n10 interest of justice does not require the witness to appear.\\\" Fed. R. Crim. P.\\n\\n11 32.1(b)(2)(C). The balancing analysis envisioned by this Rule \\\"need not be made\\n\\n12 where the proffered out-of-court statement is admissible under an established\\n\\n13 exception to the hearsay rule.\\\" Aspinall, 389 F.3d at 344; see, e.g., Jones, 299 F.3d at 113.\\n\\n14 But for statements that would be inadmissible as hearsay under the Federal Rules of\\n\\n15 Evidence, determinations as to good cause and the interests of justice \\\"require[] the\\n\\n16 court to balance the defendant's interest in confronting the declarant against . . . the\\n\\n17 government's reasons for not producing the witness and the reliability of the\\n\\n\\n\\n 31\\n\\f1 proffered hearsay.\\\" United States v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (internal\\n\\n2 quotation marks omitted), cert. denied, 568 U.S. 1092 (2013).\\n\\n\\n\\n\\n3 CONCLUSION\\n\\n4 We have considered all of parties' arguments in support of their\\n\\n5 respective positions on this appeal and, except to the extent indicated above, have\\n\\n6 found them to be without merit. The judgment is vacated, and the matter is\\n\\n7 remanded for proceedings consistent with the foregoing.\\n\\n\\n\\n\\n 32\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4365969/\", \"author_raw\": \"KEARSE, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"KATZMANN"},"judge2":{"kind":"string","value":"KEARSE"},"judge3":{"kind":"string","value":"MEYER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4588716/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Oluwole OJUDUN, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-2348-cr\n USA v. Ojudun\n\n\n\n 1 UNITED STATES COURT OF APPEALS\n\n 2 FOR THE SECOND CIRCUIT\n\n 3 ------\n\n 4 August Term, 2018\n\n 5 (Submitted: October 24, 2018 Decided: February 8, 2019)\n\n 6 Docket No. 17-2348-cr\n\n 7 _________________________________________________________\n\n 8 UNITED STATES OF AMERICA,\n\n 9 Appellee,\n\n10 - v. -\n\n11 OLUWOLE OJUDUN,\n\n12 Defendant-Appellant.*\n13 _________________________________________________________\n\n14 Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge**.\n\n\n\n\n * The Clerk of Court is directed to amend the official caption to conform with the\n above.\n\n ** Judge Jeffrey A. Meyer, of the United States District Court for the District of\n Connecticut, sitting by designation.\n\f 1 Appeal from a judgment of the United States District Court for the\n\n 2 Southern District of New York, Katherine B. Forrest, then-Judge, revoking defendant\n\n 3 Ojudun's supervised release--imposed following his prior federal conviction for\n\n 4 conspiracy to commit bank fraud--on the grounds that while on such release he, inter\n\n 5 alia, committed two financial crimes in violation of New Jersey law and associated\n\n 6 with a known felon and thereby violated the conditions of release, and ordering him\n\n 7 to serve 30 months' imprisonment, to be followed by two years of supervised release.\n\n 8 On appeal, Ojudun contends principally that the court erred (1) in denying his motion\n\n 9 to suppress, on Fourth Amendment grounds, evidence resulting from New Jersey\n\n10 police officers' stop of the vehicle in which he was a passenger, and (2) in admitting,\n\n11 over his hearsay objection, evidence of postarrest statements made by the vehicle's\n\n12 driver as statements against the interest of the driver. We find no merit in Ojudun's\n\n13 Fourth Amendment challenges to the stop and search of the vehicle. However, we\n\n14 conclude that evidence of statements by the driver that incriminated Ojudun without\n\n15 incriminating the driver did not fall within the hearsay exception provided by Rule\n\n16 804(b)(3) of the Federal Rules of Evidence for statements against the interest of the\n\n17 declarant, and that the court did not perform the analyses required under Rule\n\n18 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure,\n\n\n 2\n\f 1 in order to determine the admissibility of the declarant's other statements. We thus\n\n 2 vacate the judgment and remand for further proceedings.\n\n 3 Vacated and remanded.\n\n 4 GEOFFREY S. BERMAN, United States Attorney for the\n 5 Southern District of New York, New York, New York\n 6 (Daniel S. Noble, Anna M. Skotko, Assistant United\n 7 States Attorneys, New York, New York, of counsel),\n 8 for Appellee.\n\n 9 BENNO & ASSOCIATES, New York, New York (Ameer\n10 Benno, New York, New York, of counsel; Adam D.\n11 Perlmutter, Perlmutter & McGuinness, New York,\n12 New York, of counsel on the initial brief), for\n13 Defendant-Appellant.\n\n\n\n\n14 KEARSE, Circuit Judge:\n\n15 Defendant Oluwole Ojudun appeals from a judgment of the United\n\n16 States District Court for the Southern District of New York, Katherine B. Forrest,\n\n17 then-Judge, revoking his supervised release--imposed following his prior conviction\n\n18 for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349--on\n\n19 the grounds that Ojudun violated standard conditions of release by (1) committing\n\n20 forgery in violation of New Jersey law, (2) committing theft by deception in violation\n\n21 of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without\n\n\n 3\n\f 1 permission, and (4) associating with a known felon. The court ordered Ojudun to\n\n 2 serve 30 months' imprisonment, followed by two years of supervised release, to be\n\n 3 served consecutively to any state sentence that may be imposed. On appeal, Ojudun\n\n 4 challenges his convictions on charges (1), (2), and (4), contending principally that the\n\n 5 court erred (a) in denying his motion to suppress, on Fourth Amendment grounds,\n\n 6 evidence resulting from the New Jersey police officers' stop of the vehicle in which\n\n 7 he was a passenger, and (b) in admitting, over his motion to preclude as hearsay,\n\n 8 evidence of postarrest statements made about Ojudun by the vehicle's driver. For the\n\n 9 reasons that follow, we reject Ojudun's challenges to the officers' stop of the vehicle\n\n10 and the ensuing seizure of evidence. However, we conclude that statements of the\n\n11 driver that incriminated Ojudun without incriminating the driver were not properly,\n\n12 under Rule 804(b)(3) of the Federal Rules of Evidence, ruled statements against the\n\n13 interest of the driver, and that the district court did not perform the analyses required\n\n14 under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\n\n15 Procedure, in order to determine the admissibility of the declarant's other statements.\n\n16 We thus vacate the judgment and remand for further proceedings.\n\n\n\n\n 4\n\f 1 I. BACKGROUND\n\n\n\n\n 2 The present proceeding against Ojudun alleging his violations of\n\n 3 supervised release (\"VOSR\") arises from the January 12, 2017 stop by local police\n\n 4 officers in Summit, New Jersey, of a car (the \"Car\") driven by Anthony Gray, in which\n\n 5 Ojudun was a passenger. Ojudun moved to suppress any evidence resulting from the\n\n 6 stop, contending that the stop, the ensuing search of the Car, and his arrest, violated\n\n 7 the Fourth Amendment. As part of Ojudun's VOSR hearing, which was held in April\n\n 8 and June 2017, the stop and its aftermath were described principally in a suppression\n\n 9 hearing at which the only witness was Detective Christopher Medina of the Summit\n\n10 Police Department (\"SPD\"), who had participated in the stop, the search, and the\n\n11 subsequent arrests of Ojudun, Gray, and Jerry Cesaro, the Car's other passenger (see\n\n12 Part I.B. below). Medina also described his postarrest interview of Gray. That\n\n13 testimony and a videotape of the interview were introduced over Ojudun's hearsay\n\n14 objection (see Part I.C. below).\n\n15 Following the hearing, the district court, inter alia, found the testimony\n\n16 of Medina to be credible and found that his observations of the Car and Cesaro\n\n17 provided reasonable suspicion sufficient to justify the stop of the Car. Ojudun has not\n\n\n 5\n\f 1 argued that any of the court's factual findings in this regard are clearly erroneous;\n\n 2 rather, he challenges its conclusions of law as to the constitutionality of the stop of the\n\n 3 Car and the ensuing search and seizures. He also challenges the court's ruling that\n\n 4 Gray's hearsay statements were admissible under Fed. R. Evid. Rule 804(b)(3), the\n\n 5 exception for statements that are contrary to the declarant's punitive interest.\n\n\n\n\n 6 A. Ojudun's Prior Conviction\n\n 7 Relevant events leading to Ojudun's prior conviction are not disputed\n\n 8 and/or are matters of record. In 2011, the United States Postal Inspection Service\n\n 9 began investigating a bank fraud scheme that involved deposits of counterfeit checks\n\n10 at banks located in New York, New Jersey, and Connecticut. Some scheme\n\n11 participants would open bank accounts using their own identities and would provide\n\n12 their account information and personal identification numbers to other participants,\n\n13 who would then deposit counterfeit checks into the accounts. Thereafter, participants\n\n14 would obtain money from the accounts by withdrawing cash at Automated Teller\n\n15 Machines (\"ATMs\"), or using debit cards at retail locations, or purchasing money\n\n16 orders at United States Post Offices.\n\n\n\n\n 6\n\f 1 Ojudun and Gray were among the participants in the scheme. Ojudun\n\n 2 deposited counterfeit checks and withdrew cash from ATMs and local bank branches,\n\n 3 and he recruited others to do so. Gray supplied scheme participants with counterfeit\n\n 4 checks and drove them to various banks in order to cash them.\n\n 5 In 2012, Gray, following his plea of guilty, was convicted of bank fraud.\n\n 6 He was sentenced principally to time served, plus three years of supervised release.\n\n 7 In 2014, Ojudun was convicted, following his plea of guilty, of conspiracy to commit\n\n 8 bank fraud. He was sentenced to 40 months' imprisonment, to be followed by three\n\n 9 years of supervised release. Ojudun's three-year supervised-release term began upon\n\n10 his release from prison in May 2016.\n\n\n\n\n11 B. SPD's January 2017 Stop of the Car and Arrest of Ojudun\n\n12 Medina's testimony at the suppression hearing included the following.\n\n\n\n\n13 1. The Stop\n\n14 Around noon on January 12, 2017, Medina and SPD Detective Sergeant\n\n15 Mike Treiber (the \"Officers\") were driving in the center of Summit, a town in which\n\n16 the vast majority of the cars were registered in New Jersey, when they noticed the\n\n\n 7\n\f 1 Car, a black BMW with New York license plates, drive about 100 feet past a Chase\n\n 2 Bank branch and double park. (See Hearing Transcript, April 19, 2017 (\"April Tr.\"),\n\n 3 at 20-24.) A \"disheveled looking\" white male--later identified as Cesaro--whose gaunt\n\n 4 face, dirty clothing, and general appearance were, in Medina's experience, \"consistent\n\n 5 with somebody who uses drugs\" (id. at 24), exited the Car, \"meander[ed]\" toward the\n\n 6 bank, walking diagonally in the street rather than crossing and using the sidewalk\n\n 7 (Hearing Transcript, June 16, 2017 (\"June Tr.\"), at 44; see id. at 50-51), and entered the\n\n 8 rear door to the bank (see April Tr. 29). The Car drove off; the Officers, whose\n\n 9 suspicions were aroused as to the possibility of bank fraud or narcotics trafficking,\n\n10 promptly parked in the first parking spot in the bank's parking lot--one of several\n\n11 available spaces--and watched the bank's rear entrance. They saw Cesaro exit the\n\n12 bank, and at about the same time saw the Car reappear and again drive about 100 feet\n\n13 past the bank, and stop. Cesaro, again walking diagonally in the street rather than\n\n14 crossing to use the sidewalk, entered the Car, which drove off after remaining\n\n15 stationary for some 30-60 seconds. (See id. at 28-31; June Tr. 55-58.)\n\n16 The Officers followed for a time, then signaled the Car to pull over and\n\n17 stop.\n\n\n\n\n 8\n\f 1 2. The Questioning, the Search, and the Arrests\n\n 2 After the Car stopped, Medina went to the passenger side, identified\n\n 3 himself as an SPD detective, and asked the driver--Gray--for credentials. Gray\n\n 4 produced a registration, an insurance card, and his driver's license, but as he was\n\n 5 rummaging for the documents, Medina asked how the men had wound up in\n\n 6 Summit; Gray responded that they had taken a wrong exit and had gotten lost trying\n\n 7 to go to the mall in nearby Short Hills, New Jersey. (See April Tr. 36; June Tr. 78.)\n\n 8 Medina then asked how they all knew each other; Gray said the front seat passenger--\n\n 9 who was Ojudun--was his friend and that the back seat passenger was his \"uncle.\"\n\n10 (April Tr. 36.) But when Medina asked what Gray's uncle's name was, Gray just said\n\n11 \"What?\" which Medina's training and experience caused him to view as a stalling\n\n12 tactic--a view enhanced by Cesaro's appearance and his odd path to and from the\n\n13 bank, as well as by the driver's failure to avail himself of any of the empty spaces in\n\n14 the bank's parking lot or to stop in front of the bank to drop Cesaro off or pick him\n\n15 up, instead of twice proceeding 100 feet past the bank. Upon Gray's apparently\n\n16 evasive response, Medina told Cesaro to get out of the Car.\n\n17 Medina took Cesaro to the rear of the Car and attempted to have him\n\n18 place his hands on the rear of the Car. Cesaro instead resisted, kept one hand in his\n\n\n 9\n\f 1 pocket, and elbowed Medina in the ribs. Medina grabbed Cesaro and threw him to\n\n 2 the ground. While subduing Cesaro, Medina saw the Car's brake lights flare and,\n\n 3 fearing that the Car was about to either flee or back over him, yelled a warning to\n\n 4 Treiber. Treiber pulled his pistol and pointed it toward Gray, telling him to turn off\n\n 5 the engine, and summoned backup police officers.\n\n 6 When more officers arrived a few minutes later, Treiber holstered his\n\n 7 gun, and Gray and Ojudun were taken out of the Car. Cesaro was placed under\n\n 8 arrest for assaulting Medina and was searched incident to that arrest. (See June\n\n 9 Tr. 17.) In Cesaro's pockets, Medina found, inter alia, the remnants of a crack pipe that\n\n10 had broken when Cesaro was taken to the ground; a credit card in the name of one\n\n11 Frank Langendorf (see id. at 26); a New York State prison inmate identification card\n\n12 bearing Cesaro's name and picture (see April Tr. 40-41); and a Pennsylvania driver's\n\n13 license in Langendorf's name but bearing a picture of Cesaro (see id. at 41). One of the\n\n14 backup SPD officers took a cell-phone photograph of Cesaro and went into the bank\n\n15 with it to determine what Cesaro had done there.\n\n16 Meanwhile, Medina asked Gray, as the Car's driver, whether he would\n\n17 consent to a search of the Car. Neither Gray nor Ojudun had been arrested at this\n\n18 point. (See June Tr. 17.) Gray gave his consent.\n\n\n 10\n\f 1 When, in a normal speaking voice, Medina asked Gray for consent to\n\n 2 search the Car, Ojudun--seated on the curb at the rear of the car--was no more than\n\n 3 five feet away; and at no point did Ojudun reveal that the Car belonged to his\n\n 4 girlfriend, or state that Gray was not authorized to drive it or to consent to its search,\n\n 5 or say that Ojudun himself objected to the search. After Gray gave his consent,\n\n 6 Medina, at the rear of the car to search the trunk, told Gray that he could have the\n\n 7 search halted at any time if he chose. Ojudun, still seated on the curb at the rear of\n\n 8 the Car, said nothing. (See June Tr. 18-19.) No one present suggested that Gray\n\n 9 lacked authority to consent to a search. (See id. at 19; April Tr. 44-46.)\n\n10 In searching the Car, officers immediately found, on the seat that had\n\n11 been occupied by Ojudun, an envelope containing two checks made payable to Frank\n\n12 Langendorf. (See June Tr. 18.) In the meantime, the officer who had taken Cesaro's\n\n13 picture to show to bank employees learned that Cesaro had cashed a $2,845.46 check\n\n14 that was payable to Frank Langendorf and had displayed a Pennsylvania driver's\n\n15 license in that name. (See id. at 19-21.) Based on the discovery of the two Langendorf\n\n16 checks on Ojudun's seat and the information provided by the bank as to the\n\n17 Langendorf check just cashed by Cesaro, the officers then \"placed everybody under\n\n18 arrest.\" (Id. at 24-25.)\n\n\n 11\n\f 1 When Ojudun was searched incident to his arrest, the officers found that\n\n 2 he had cash in two pockets. In one, he had $233 in worn bills that looked to have\n\n 3 been in circulation for some time. (See id. at 25-26.) In the other, he had fresh bills\n\n 4 totaling exactly $2,845. (See id. at 25.)\n\n 5 In the continuing search of the Car, officers found in the center console\n\n 6 an envelope containing pedigree information for Langendorf. They also found a\n\n 7 paper that contained \"what looked to be practicing of signatures of Mr. [F]rank\n\n 8 Langendorf which matched the endorsed portion of the check cashed by Mr. Cesaro.\"\n\n 9 (June Tr. 26). SPD officers contacted the police department in nearby Millburn, New\n\n10 Jersey, where Langendorf resided, and learned that he had several times complained\n\n11 of identity theft. Millburn police arrived at the scene of the arrests in Summit and\n\n12 confirmed that the occupants of the Car possessed information belonging to the real\n\n13 Frank Langendorf.\n\n\n\n\n14 C. Gray's Postarrest Statements Incriminating Ojudun\n\n15 At SPD headquarters, Medina conducted an interview of Gray, which\n\n16 was videotaped. As described in greater detail in Part II.B. below, after initially\n\n17 denying all knowledge of a fraud scheme, Gray eventually admitted that he had been\n\n\n 12\n\f 1 promised $100 by Cesaro to drive Ojudun and Cesaro to the bank in order to cash a\n\n 2 check. Gray said he saw Ojudun give the check to Cesaro to take into the bank.\n\n 3 Although Gray had waived his Miranda rights for the interview, it was\n\n 4 established at the VOSR hearing that he would be unavailable to testify because of his\n\n 5 assertion of his Fifth Amendment privilege against self-incrimination. (See June\n\n 6 Tr. 4-5.) Ojudun moved to exclude any evidence as to Gray's statements as hearsay.\n\n\n\n\n 7 D. The District Court's Rulings\n\n 8 1. On the Challenge to the Stop\n\n 9 At the close of the June hearing, the district court denied Ojudun's\n\n10 motion to suppress evidence seized as a result of the stop of the Car. It found\n\n11 Medina's testimony to be \"very credible\" and concluded, based on the totality of the\n\n12 circumstances, that the \"accumulation of facts\" resulting from the Officers'\n\n13 observations of, inter alia, the unusual movements of the Car and of Cesaro--described\n\n14 in Part I.B.1. above--provided a \"very solid basis\" for reasonable suspicion to support\n\n15 the initial stop of the Car. (June Tr. 108). The court stated that its conclusion was \"not\n\n16 based upon one fact but based upon an accumulation of facts . . . in their totality . . . .\"\n\n17 (Id. at 108-09.)\n\n\n 13\n\f 1 2. On the Challenge to the Search for Lack of Consent\n\n 2 Just prior to the start of the suppression hearing, Ojudun filed a\n\n 3 declaration challenging the government's position that there had been a valid consent\n\n 4 to search the Car. Ojudun presented evidence that the Car belonged to his girlfriend,\n\n 5 stated that he had not consented to the search, and offered to call his girlfriend to\n\n 6 testify that she had not authorized Gray to drive her car or to consent to its search.\n\n 7 The government conceded with respect to ownership and the fact that the owner and\n\n 8 Ojudun did not give consent. (See April Tr. 13.) The district court noted that the\n\n 9 question remained whether Gray had apparent authority to consent to a search and\n\n10 whether it was reasonable for the Officers to believe he had authority.\n\n11 After the suppression hearing, the court found \"no information to\n\n12 suggest that Gray was not in control of the vehicle and didn't have apparent authority\n\n13 over [it].\" (June Tr. at 110.) Even though Gray was not the Car's owner, the court\n\n14 found that he had apparent authority and control over it, as he was driving it when\n\n15 it was first seen stopping at the bank, when it had rounded the block and returned to\n\n16 the bank, and when it was driven away after picking up Cesaro. Although Medina\n\n17 could have learned by examining the Car's registration that it belonged to someone\n\n18 other than Gray, the court concluded that that information would not have dispelled\n\n\n 14\n\f 1 the appearance that Gray was authorized to drive and exercise control over the Car.\n\n 2 Gray gave Medina the requested documents (see, e.g., Ojudun brief on appeal at 22\n\n 3 (the Car's registration \"w[as] immediately handed over\")) without providing any\n\n 4 indication that he did not have permission or authority to use or exercise dominion\n\n 5 over the Car. And when requested, he promptly gave his consent to the search,\n\n 6 giving no indication that he lacked authority to do so.\n\n 7 Ojudun himself during the events of January 12 made no mention of the\n\n 8 fact that the Car was owned by his girlfriend; he did not in any way indicate that\n\n 9 Gray lacked permission to drive the Car, or to exercise full authority over it, or to\n\n10 consent to its search. The district court found that Ojudun \"was in sufficient\n\n11 proximity\" to hear, inter alia, both Medina's request that Gray consent to a search and\n\n12 Medina's ensuing statements to Gray that, even having given his consent, Gray could\n\n13 have the search terminated at any time; the court found that \"there was no[]\n\n14 suggestion by . . . Ojudun or anyone that Mr. Gray did not have authority to consent\n\n15 to search . . . .\" (June Tr. 113.) The court concluded that Medina had reasonably relied\n\n16 on Gray's apparent authority to consent to the vehicle search. (See id. at 110-13; June\n\n17 23, 2017 Endorsement Order confirming oral ruling.)\n\n\n\n\n 15\n\f 1 3. The Admission of Gray's Postarrest Statements\n\n 2 At the start of the June session of the VOSR hearing, the district court\n\n 3 denied Ojudun's motion to exclude evidence of Gray's interview statements to\n\n 4 Medina. The court ruled that all of Gray's statements were within the Rule 804(b)(3)\n\n 5 exception for statements against the declarant's penal interest. (See Part II.B. below.)\n\n\n\n\n 6 II. DISCUSSION\n\n\n\n\n 7 On appeal, Ojudun contends that the district court erred (A) in denying\n\n 8 his Fourth Amendment motion to suppress on the grounds that the Officers lacked\n\n 9 reasonable suspicion to stop the Car and that Gray lacked authority to consent to the\n\n10 search, and (B) in concluding that Gray's hearsay statements incriminating Ojudun\n\n11 were admissible under Rule 804(b)(3) as statements against Gray's interest. We reject\n\n12 Ojudun's Fourth Amendment contentions but find merit in his Rule 804(b)(3)\n\n13 challenge.\n\n\n\n\n14 A. The Fourth Amendment Challenges to the Stop and the Search\n\n15 Ojudun's contentions that the district court erred in rejecting his Fourth\n\n\n 16\n\f 1 Amendment challenges to the stop and search of the Car do not require extended\n\n 2 discussion. In considering challenges to the denial of a suppression motion, we\n\n 3 review the district court's factual findings for clear error and its conclusions of law de\n\n 4 novo. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.), cert. denied, 135\n\n 5 S. Ct. 301 (2014). Ojudun has not argued that any of the court's factual findings\n\n 6 described in Part I.D. above are clearly erroneous; and we see no error of law.\n\n 7 It is well established that, consistent with the Fourth Amendment, a\n\n 8 \"government law enforcement agent may subject an individual to an investigative\n\n 9 stop upon a reasonable suspicion that the individual is, has been, or is about to be\n\n10 engaged in criminal activity. . . . The agent is said to have a reasonable suspicion\n\n11 when he is in possession of 'specific and articulable facts which, taken together with\n\n12 rational inferences from those facts, reasonably warrant [the] intrusion.'\" United States\n\n13 v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968));\n\n14 see generally United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975) (the\n\n15 interception of a moving vehicle, causing it to stop for questioning, is not so intrusive\n\n16 that probable cause is required, so long as it is supported by specific articulable facts\n\n17 that, together with rational inferences from those facts, reasonably warrant suspicion\n\n18 that the vehicle contains persons who are engaging in or are about to engage in\n\n\n 17\n\f 1 unlawful activity). The \"touchstone of the Fourth Amendment is reasonableness.\"\n\n 2 Florida v. Jimeno, 500 U.S. 248, 250 (1991). \"Reasonableness, in turn, is measured in\n\n 3 objective terms by examining the totality of the circumstances.\" Ohio v. Robinette, 519\n\n 4 U.S. 33, 39 (1996).\n\n 5 As described in Part I.D.1. above, the district court applied these\n\n 6 principles in evaluating the Officers' assessment of their observations of the unusual\n\n 7 conduct described in Part I.B. above. We see no error in the court's conclusion that\n\n 8 the stop of the Car was supported by reasonable suspicion, and we affirm the denial\n\n 9 of Ojudun's challenge to the stop substantially for the reasons stated by the district\n\n10 court.\n\n11 Although Ojudun makes an additional argument that the record does not\n\n12 support a finding that the Officers had reason to stop the Car for a violation of local\n\n13 traffic laws, we need not address that argument, as the district court sufficiently\n\n14 rested its decision on the ground described above.\n\n15 It is also well established that the Fourth Amendment does not forbid a\n\n16 warrantless search of private property pursuant to consent, voluntarily given, by the\n\n17 owner of the property, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), or\n\n18 by \"another person who has authority to consent by reason of that person's 'common\n\n\n 18\n\f 1 authority over or other sufficient relationship to the premises,'\" United States v. McGee,\n\n 2 564 F.3d 136, 138 (2d Cir. 2009) (\"McGee\") (quoting United States v. Matlock, 415 U.S.\n\n 3 164, 171 (1974)), or by a person who in fact lacked authority to consent but who\n\n 4 \"reasonably appeared to the police to possess authority to consent to the search,\"\n\n 5 McGee, 564 F.3d at 139. The requirement imposed by the Fourth Amendment's\n\n 6 touchstone of reasonableness \"is not that the[ officers] always be correct, but that they\n\n 7 always be reasonable.\" Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Thus, where\n\n 8 the person who gave consent did not have actual authority, the question is \"whether\n\n 9 the officers reasonably believed that [he] had the authority to consent.\" Id. at 189.\n\n10 In challenging the district court's conclusion that Gray had apparent\n\n11 authority to consent to the search of the Car and that it was reasonable for the Officers\n\n12 to believe that he had authority, Ojudun argues that \"no reasonable officer in\n\n13 Medina's position would have assumed that Gray had . . . authority\" to consent to a\n\n14 search (Ojudun brief on appeal at 22); but he points to no evidence other than the fact\n\n15 that the Car's registration was in a name other than that of Gray. While Ojudun states\n\n16 that \"Gray had only temporary access to the vehicle, . . . could not regularly access the\n\n17 vehicle, . . . and did not have permission to drive the vehicle\" (id.), not one of those\n\n18 limitations was observable by the Officers, and, as the district court found (see Part\n\n\n 19\n\f 1 I.D.2. above), none was hinted at by Ojudun on January 12. Gray was the only person\n\n 2 the Officers observed driving the Car; when asked for license and registration, Gray\n\n 3 \"immediately handed [them] over\" (Ojudun brief on appeal at 22); and although\n\n 4 Gray's consent to search the car was requested and discussed within earshot of at\n\n 5 least Ojudun, none of the occupants of the car suggested in any manner that Gray, the\n\n 6 driver, lacked authority to consent to a search. We conclude that the district court did\n\n 7 not err in ruling that it was reasonable for the Officers to believe that Gray had such\n\n 8 authority.\n\n\n\n\n 9 B. The Challenge to the Admission of Gray's Postarrest Statements\n\n10 Gray's postarrest interview by Medina was some 27 minutes long. At the\n\n11 beginning, Gray claimed that he had come to New Jersey simply to visit an outlet at\n\n12 the Short Hills mall that sold new or lightly used sneakers. For approximately the\n\n13 first half of the interview, Gray denied his involvement in any fraudulent scheme and\n\n14 persisted in proclaiming that single benign purpose. However, as Medina testified,\n\n15 Gray eventually conceded \"that he knew that they were leaving the Bronx to come to\n\n16 that bank and that they were going to cash the check\" (June Tr. 32).\n\n\n\n\n 20\n\f 1 1. Gray's Videotaped Statement\n\n 2 The videotape reveals that Gray said he became the driver for the\n\n 3 January 12 trip because he was a professional driver and preferred driving to being\n\n 4 driven. And although he said he had never heard of Ojudun or Cesaro engaging in\n\n 5 fraudulent banking activity before, Gray eventually admitted that he had known from\n\n 6 the start of the trip that Ojudun's and Cesaro's intentions were to cash a check at the\n\n 7 bank in Summit. (Gray also said near the start of the interview that he had never\n\n 8 been involved previously in any activity of this sort; but toward the end he admitted\n\n 9 that he had previously been \"arrested\" for this kind of conduct. See generally Part I.A.\n\n10 above.) Gray said that Ojudun had called him on the morning of January 12 to make\n\n11 plans to drive to New Jersey, that Ojudun already had possession of Ojudun's\n\n12 girlfriend's car, and that Cesaro promised to pay Gray $100 to drive.\n\n13 Gray said he knew when he got into the Car that the plan was to go to\n\n14 Summit to cash a check. He said, however, that he had no conversation with Ojudun\n\n15 or Cesaro as to the banking aspects of the trip; that he did not participate in selecting\n\n16 the bank at which the check would be cashed and did not know why the bank in\n\n17 question had been chosen; that he did not know the source of the checks or how\n\n18 many such checks were in the Car; that he did not know the provenance of Cesaro's\n\n\n 21\n\f 1 identification; that he did not know how much money Cesaro or Ojudun respectively\n\n 2 would receive from the check; and that he did not see, or know that, Cesaro gave\n\n 3 Ojudun money from the cashed check.\n\n 4 Gray said that when he stopped the Car to let Cesaro get out to go to the\n\n 5 bank, he saw Ojudun give Cesaro a check. Gray said he did not know exactly what\n\n 6 Cesaro was going to do in the bank once Gray dropped him off, although he knew the\n\n 7 general plan was to cash a check. Gray said he was not paying close attention to the\n\n 8 scheme because his principal purpose in driving to Summit was to look at sneakers\n\n 9 at the mall. He said he only knew they were to go to the mall after the check was\n\n10 cashed.\n\n\n\n\n11 2. The District Court's Ruling\n\n12 Over Ojudun's objection that the evidence of Gray's statements was\n\n13 hearsay, the district court admitted the videotaped interview, and Medina's\n\n14 description of it, ruling that it fell within Fed. R. Evid. 804(b)(3)'s exception for\n\n15 statements against the declarant's punitive interest. The court reasoned as follows:\n\n16 When somebody is sitting there, while it is true that Mr. Gray\n17 starts off talking to the interviewing officer and pushing back\n18 about any involvement, eventually, he concedes involvement, though\n19 he does, I agree, try to push more involvement off on others than he\n 22\n\f 1 accepts for himself. But he puts himself there and he starts to concede\n 2 some of the relevant facts. That at the very least is a statement\n 3 against interest for a conspiracy claim. So it doesn't have to be\n 4 what is actually charged for it to be a statement against interest\n 5 but he is putting himself in the vicinity and in the circumstances\n 6 where he's driving somebody in this car cause he knows how to\n 7 drive to a location where he understands there's going to be bank fraud.\n 8 So now while he may say, hey, I wasn't the really, the bad doer--\n 9 and I'm summarizing . . . . [t]hat is a statement certainly against\n10 his interest. He could not have thought that that statement was\n11 something that could not result in a potential criminal penalty.\n12 Perhaps a lesser criminal penalty than others might have suffered\n13 or feared but a statement as against interest can be construed at\n14 the level of a violation. But here we are not even talking about\n15 that. We're talking some form of criminal conduct that would be\n16 well above that level.\n\n17 (June Tr. 5-6 (emphases added).)\n\n18 Although a district court's decision to admit evidence is reviewed for\n\n19 abuse of discretion, see, e.g., United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004)\n\n20 (\"Saget\"), cert. denied, 543 U.S. 1079 (2005); United States v. Jones, 299 F.3d 103, 112 (2d\n\n21 Cir. 2002); United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998), the court \"abuses or\n\n22 exceeds the discretion accorded to it when (1) its decision rests on [(a)] an error of law\n\n23 (such as application of the wrong legal principle) or [(b)] a clearly erroneous factual\n\n24 finding, or (2) its decision . . . cannot be located within the range of permissible\n\n25 decisions,\" Jones, 299 F.3d at 112 (internal quotation marks omitted). In light of the\n\n\n\n 23\n\f 1 following legal principles, we have several difficulties with the court's decision in this\n\n 2 case.\n\n\n\n\n 3 3. Statements Against Penal Interest\n\n 4 Rule 804 provides that the hearsay rule does not exclude evidence of a\n\n 5 statement against an unavailable declarant's penal interest if the\n\n 6 statement [is one] that:\n\n 7 (A) a reasonable person in the declarant's position would have\n 8 made only if the person believed it to be true because, when made, it . . .\n 9 had so great a tendency . . . to expose the declarant to . . . criminal\n10 liability; and\n\n11 (B) is supported by corroborating circumstances that clearly\n12 indicate its trustworthiness, if it is offered in a criminal case as one that\n13 tends to expose the declarant to criminal liability.\n\n14 Fed. R. Evid. 804(b)(3). The threshold questions are whether the offered \"statement\"\n\n15 of the declarant would be perceived by \"a reasonable person in the declarant's shoes\"\n\n16 to be \"detrimental to his or her own penal interest,\" Saget, 377 F.3d at 231.\n\n17 First, although the word \"statement\" might be read broadly to refer to a\n\n18 declarant's \"entire confession,\" Williamson v. United States, 512 U.S. 594, 599 (1994), it\n\n19 must instead, in light of the principles underlying the Rule, be construed to refer to,\n\n20 and to require assessment of, each assertion individually, see id. at 600-01.\n 24\n\f 1 Rule 804(b)(3) is founded on the commonsense notion that reasonable\n 2 people, even reasonable people who are not especially honest, tend not to\n 3 make self-inculpatory statements unless they believe them to be true.\n 4 This notion simply does not extend to the broader definition of\n 5 \"statement.\" The fact that a person is making a broadly self-inculpatory\n 6 confession does not make more credible the confession's non-self-\n 7 inculpatory parts. One of the most effective ways to lie is to mix\n 8 falsehood with truth . . . .\n\n 9 Id. at 559-600 (emphases added). Thus,\n\n10 [t]he district court may not just assume for purposes of Rule 804(b)(3)\n11 that a statement is self-inculpatory because it is part of a fuller\n12 confession, and this is especially true when the statement implicates\n13 someone else. \"[T]he arrest statements of a codefendant have\n14 traditionally been viewed with special suspicion. Due to his strong\n15 motivation to implicate the defendant and to exonerate himself, a\n16 codefendant's statements about what the defendant said or did are less\n17 credible than ordinary hearsay evidence.\"\n\n18 Williamson, 512 U.S. at 601 (quoting Lee v. Illinois, 476 U.S. 530, 541 (1986) (emphases\n\n19 ours)).\n\n20 Second, as to any particular statement, \"[t]he question under Rule\n\n21 804(b)(3) is always,\" in light of all surrounding circumstances, \"whether the statement\n\n22 was sufficiently against the declarant's penal interest that a reasonable person in the\n\n23 declarant's position would not have made the statement unless believing it to be true.\"\n\n24 Id. at 603-04 (internal quotation marks omitted) (emphasis added). Thus, while some\n\n25 parts of a declarant's statement may be clearly self-incriminatory, \"other parts, . . .\n\n 25\n\f 1 especially the parts that implicated [the defendant, and] did little to subject [the\n\n 2 declarant] himself to criminal liability,\" are not within the scope of Rule 804(b)(3)(A).\n\n 3 Id. at 604; see id. (\"A reasonable person in [the declarant's] position might even think\n\n 4 that implicating someone else would decrease his practical exposure to criminal\n\n 5 liability, at least so far as sentencing goes. Small fish in a big conspiracy often get\n\n 6 shorter sentences than people who are running the whole show, . . . especially if the\n\n 7 small fish are willing to help the authorities catch the big ones.\"). Accordingly, the\n\n 8 court must \"inquire[] whether each of the statements in [the declarant's] confession\n\n 9 was truly self-inculpatory.\" Id. (emphases added). A particular statement by the\n\n10 declarant is not within \"the penal interest exception\" if it incriminated the defendant\n\n11 \"exclusively.\" United States v. Wexler, 522 F.3d 194, 202-03 (2d Cir. 2008).\n\n12 In light of these principles, we have several difficulties with the district\n\n13 court's treatment of the Gray interview. First, the court did not focus on each of his\n\n14 statements individually to determine which of them would reasonably have been\n\n15 viewed as so exposing him to criminal liability as to fall within Rule 804(b)(3)(A).\n\n16 Rather, as shown above, the court commented generally on Gray's statement as a\n\n17 whole. To be sure, several of his statements were plainly contrary to his own penal\n\n18 interest. He admitted--eventually--that he knew when he got into the Car at the start\n\n\n 26\n\f 1 of the trip that the plan was to go to the bank in Summit to cash a check, and he\n\n 2 admitted that he was going to be paid $100 by Cesaro to drive Ojudun and Cesaro\n\n 3 there. These statements were contrary to Gray's punitive interest, as the district court\n\n 4 correctly noted that admitting to \"driving somebody in this car . . . to a location where\n\n 5 he understands there's going to be bank fraud\" (June Tr. 5 (emphasis added))\n\n 6 provided evidence that could lead to Gray's conviction for conspiracy to commit\n\n 7 financial fraud. The fact that these statements also tended to implicate Ojudun, who\n\n 8 had procured the Car, and Cesaro, who had cashed the check, did not lessen their\n\n 9 detriment to Gray's interest because his statement was evidence of his foreknowledge\n\n10 of and assistance in the commission of the crime. But these statements were but a\n\n11 small part of Gray's overall interview.\n\n12 Second, the court did not at all address the Gray statement that was most\n\n13 damaging to Ojudun, Cesaro having been the person who promised Gray $100 and\n\n14 physically cashed the counterfeit check. Gray said that when he stopped the Car to\n\n15 let Cesaro out to go to the bank, Ojudun gave Cesaro the check. This was a statement\n\n16 that tied Ojudun squarely to the execution of the fraud, without in any way further\n\n17 implicating Gray. We cannot say that this statement fell within the scope of Rule\n\n18 804(b)(3)(A).\n\n\n 27\n\f 1 Third, even where the court has properly found that a particular\n\n 2 statement is against the declarant's own penal interest within the meaning of Rule\n\n 3 804(b)(3)(A), the court must then determine whether there are \"corroborating\n\n 4 circumstances that clearly indicate,\" Fed. R. Evid. 804(b)(3)(B), \"both the declarant's\n\n 5 trustworthiness and the truth of the statement,\" United States v. Lumpkin, 192 F.3d 280,\n\n 6 287 (2d Cir. 1999). For those conditions to be satisfied, \"the inference of\n\n 7 trustworthiness from the proffered 'corroborating circumstances' must be strong, not\n\n 8 merely allowable.\" United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484\n\n 9 U.S. 966 (1987).\n\n10 Here, most of Gray's statements, made to a law enforcement official,\n\n11 were designed to minimize his involvement in the planned fraud and to deflect\n\n12 responsibility onto Ojudun and Cesaro. Even after he abandoned his initial claim of\n\n13 total innocence, he claimed, as detailed in Part II.B.1. above, total ignorance about,\n\n14 inter alia, bank selection, the presence of counterfeit checks in the Car, cash in the Car,\n\n15 provenance of fraudulent identifications, division of proceeds, and the source of the\n\n16 checks. The thrust of Gray's statements, once Medina persuaded him that it would\n\n17 be in his interest to abandon his claim of innocence, was that he knew Ojudun and\n\n18 Cesaro planned to cash a check. The record does not indicate that the district court\n\n\n 28\n\f 1 made any inquiry as to whether there were corroborating circumstances to indicate\n\n 2 clearly that such of Gray's statements as fell within Rule 804(b)(3)(A) were\n\n 3 trustworthy to the extent that they were made to a law enforcement official and\n\n 4 sought to deflect responsibility onto Ojudun.\n\n 5 In sum, we conclude that the district court, in holding Gray's entire set\n\n 6 of statements to be within the scope of Rule 804(b)(3), erred in failing to make a\n\n 7 particularized assessment of the various individual assertions, in failing to determine\n\n 8 whether the relevant assertions were sufficiently corroborated as required by Rule\n\n 9 804(b)(3)(B), and in failing to recognize that the Gray statement that was most\n\n10 damaging to Ojudun was not within Rule 804(b)(3) because it did not implicate Gray\n\n11 at all.\n\n12 Although the government contends that any error with respect to the\n\n13 admission of Gray's post-arrest statement was harmless, we disagree. The district\n\n14 court stated that \"[t]he post arrest statement of Mr. Gray indicates that Mr. Gray knew\n\n15 that the check would be given from Mr. Ojudun to Mr. Cesaro and that Mr. Cesaro\n\n16 then we know as a matter of fact exited the vehicle, went into the bank and passed the\n\n17 check.\" (June Tr. 114.) In view of the district court's reliance on a portion of Gray's\n\n\n\n 29\n\f 1 statement that was not against his penal interest, the error under Rule 804(b)(3) was\n\n 2 not harmless.\n\n 3 Accordingly, we vacate the judgment and remand for the court to\n\n 4 conduct the required particularized analyses. The court should determine which of\n\n 5 Gray's statements could properly be admitted under Rule 804(b)(3), and in light of the\n\n 6 admissible evidence, determine whether the VOSR charges against Ojudun have been\n\n 7 established by a preponderance of the evidence.\n\n\n\n\n 8 4. Rule 32.1 of the Federal Rules of Criminal Procedure\n\n 9 Finally, we note that, as to such of Gray's statements as are not within the\n\n10 scope of Evidence Rule 804(b)(3), the court may consider whether they may properly\n\n11 be admitted instead pursuant to Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\n\n12 Procedure. While the Sixth Amendment right of confrontation that is applicable in\n\n13 a criminal trial does not apply in a proceeding for probation revocation, parole\n\n14 revocation, or revocation of supervised release because such a proceeding \"is not a\n\n15 stage of a criminal prosecution,\" United States v. Aspinall, 389 F.3d 332, 342 (2d Cir.\n\n16 2004) (\"Aspinall\") (supervised release) (internal quotation marks omitted), abrogated\n\n\n\n 30\n\f 1 on other grounds by United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); see\n\n 2 Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole); Gagnon v. Scarpelli, 411 U.S. 778,\n\n 3 782 (1973) (probation), the accused in such a revocation proceeding enjoys certain\n\n 4 protections under principles of due process, such as \"the right to confront and cross-\n\n 5 examine adverse witnesses (unless the hearing officer specifically finds good cause\n\n 6 for not allowing confrontation),\" Morrissey, 408 U.S. at 489.\n\n 7 This more limited right of confrontation is embodied in the Criminal\n\n 8 Rules provision that the defendant in a revocation hearing \"is entitled to . . . an\n\n 9 opportunity to . . . question any adverse witness unless the court determines that the\n\n10 interest of justice does not require the witness to appear.\" Fed. R. Crim. P.\n\n11 32.1(b)(2)(C). The balancing analysis envisioned by this Rule \"need not be made\n\n12 where the proffered out-of-court statement is admissible under an established\n\n13 exception to the hearsay rule.\" Aspinall, 389 F.3d at 344; see, e.g., Jones, 299 F.3d at 113.\n\n14 But for statements that would be inadmissible as hearsay under the Federal Rules of\n\n15 Evidence, determinations as to good cause and the interests of justice \"require[] the\n\n16 court to balance the defendant's interest in confronting the declarant against . . . the\n\n17 government's reasons for not producing the witness and the reliability of the\n\n\n\n 31\n\f1 proffered hearsay.\" United States v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (internal\n\n2 quotation marks omitted), cert. denied, 568 U.S. 1092 (2013).\n\n\n\n\n3 CONCLUSION\n\n4 We have considered all of parties' arguments in support of their\n\n5 respective positions on this appeal and, except to the extent indicated above, have\n\n6 found them to be without merit. The judgment is vacated, and the matter is\n\n7 remanded for proceedings consistent with the foregoing.\n\n\n\n\n 32\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Oluwole OJUDUN, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-08\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-2348-cr\\n USA v. Ojudun\\n\\n\\n\\n 1 UNITED STATES COURT OF APPEALS\\n\\n 2 FOR THE SECOND CIRCUIT\\n\\n 3 ------\\n\\n 4 August Term, 2018\\n\\n 5 (Submitted: October 24, 2018 Decided: February 8, 2019)\\n\\n 6 Docket No. 17-2348-cr\\n\\n 7 _________________________________________________________\\n\\n 8 UNITED STATES OF AMERICA,\\n\\n 9 Appellee,\\n\\n10 - v. -\\n\\n11 OLUWOLE OJUDUN,\\n\\n12 Defendant-Appellant.*\\n13 _________________________________________________________\\n\\n14 Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge**.\\n\\n\\n\\n\\n * The Clerk of Court is directed to amend the official caption to conform with the\\n above.\\n\\n ** Judge Jeffrey A. Meyer, of the United States District Court for the District of\\n Connecticut, sitting by designation.\\n\\f 1 Appeal from a judgment of the United States District Court for the\\n\\n 2 Southern District of New York, Katherine B. Forrest, then-Judge, revoking defendant\\n\\n 3 Ojudun's supervised release--imposed following his prior federal conviction for\\n\\n 4 conspiracy to commit bank fraud--on the grounds that while on such release he, inter\\n\\n 5 alia, committed two financial crimes in violation of New Jersey law and associated\\n\\n 6 with a known felon and thereby violated the conditions of release, and ordering him\\n\\n 7 to serve 30 months' imprisonment, to be followed by two years of supervised release.\\n\\n 8 On appeal, Ojudun contends principally that the court erred (1) in denying his motion\\n\\n 9 to suppress, on Fourth Amendment grounds, evidence resulting from New Jersey\\n\\n10 police officers' stop of the vehicle in which he was a passenger, and (2) in admitting,\\n\\n11 over his hearsay objection, evidence of postarrest statements made by the vehicle's\\n\\n12 driver as statements against the interest of the driver. We find no merit in Ojudun's\\n\\n13 Fourth Amendment challenges to the stop and search of the vehicle. However, we\\n\\n14 conclude that evidence of statements by the driver that incriminated Ojudun without\\n\\n15 incriminating the driver did not fall within the hearsay exception provided by Rule\\n\\n16 804(b)(3) of the Federal Rules of Evidence for statements against the interest of the\\n\\n17 declarant, and that the court did not perform the analyses required under Rule\\n\\n18 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure,\\n\\n\\n 2\\n\\f 1 in order to determine the admissibility of the declarant's other statements. We thus\\n\\n 2 vacate the judgment and remand for further proceedings.\\n\\n 3 Vacated and remanded.\\n\\n 4 GEOFFREY S. BERMAN, United States Attorney for the\\n 5 Southern District of New York, New York, New York\\n 6 (Daniel S. Noble, Anna M. Skotko, Assistant United\\n 7 States Attorneys, New York, New York, of counsel),\\n 8 for Appellee.\\n\\n 9 BENNO & ASSOCIATES, New York, New York (Ameer\\n10 Benno, New York, New York, of counsel; Adam D.\\n11 Perlmutter, Perlmutter & McGuinness, New York,\\n12 New York, of counsel on the initial brief), for\\n13 Defendant-Appellant.\\n\\n\\n\\n\\n14 KEARSE, Circuit Judge:\\n\\n15 Defendant Oluwole Ojudun appeals from a judgment of the United\\n\\n16 States District Court for the Southern District of New York, Katherine B. Forrest,\\n\\n17 then-Judge, revoking his supervised release--imposed following his prior conviction\\n\\n18 for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349--on\\n\\n19 the grounds that Ojudun violated standard conditions of release by (1) committing\\n\\n20 forgery in violation of New Jersey law, (2) committing theft by deception in violation\\n\\n21 of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without\\n\\n\\n 3\\n\\f 1 permission, and (4) associating with a known felon. The court ordered Ojudun to\\n\\n 2 serve 30 months' imprisonment, followed by two years of supervised release, to be\\n\\n 3 served consecutively to any state sentence that may be imposed. On appeal, Ojudun\\n\\n 4 challenges his convictions on charges (1), (2), and (4), contending principally that the\\n\\n 5 court erred (a) in denying his motion to suppress, on Fourth Amendment grounds,\\n\\n 6 evidence resulting from the New Jersey police officers' stop of the vehicle in which\\n\\n 7 he was a passenger, and (b) in admitting, over his motion to preclude as hearsay,\\n\\n 8 evidence of postarrest statements made about Ojudun by the vehicle's driver. For the\\n\\n 9 reasons that follow, we reject Ojudun's challenges to the officers' stop of the vehicle\\n\\n10 and the ensuing seizure of evidence. However, we conclude that statements of the\\n\\n11 driver that incriminated Ojudun without incriminating the driver were not properly,\\n\\n12 under Rule 804(b)(3) of the Federal Rules of Evidence, ruled statements against the\\n\\n13 interest of the driver, and that the district court did not perform the analyses required\\n\\n14 under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\\n\\n15 Procedure, in order to determine the admissibility of the declarant's other statements.\\n\\n16 We thus vacate the judgment and remand for further proceedings.\\n\\n\\n\\n\\n 4\\n\\f 1 I. BACKGROUND\\n\\n\\n\\n\\n 2 The present proceeding against Ojudun alleging his violations of\\n\\n 3 supervised release (\\\"VOSR\\\") arises from the January 12, 2017 stop by local police\\n\\n 4 officers in Summit, New Jersey, of a car (the \\\"Car\\\") driven by Anthony Gray, in which\\n\\n 5 Ojudun was a passenger. Ojudun moved to suppress any evidence resulting from the\\n\\n 6 stop, contending that the stop, the ensuing search of the Car, and his arrest, violated\\n\\n 7 the Fourth Amendment. As part of Ojudun's VOSR hearing, which was held in April\\n\\n 8 and June 2017, the stop and its aftermath were described principally in a suppression\\n\\n 9 hearing at which the only witness was Detective Christopher Medina of the Summit\\n\\n10 Police Department (\\\"SPD\\\"), who had participated in the stop, the search, and the\\n\\n11 subsequent arrests of Ojudun, Gray, and Jerry Cesaro, the Car's other passenger (see\\n\\n12 Part I.B. below). Medina also described his postarrest interview of Gray. That\\n\\n13 testimony and a videotape of the interview were introduced over Ojudun's hearsay\\n\\n14 objection (see Part I.C. below).\\n\\n15 Following the hearing, the district court, inter alia, found the testimony\\n\\n16 of Medina to be credible and found that his observations of the Car and Cesaro\\n\\n17 provided reasonable suspicion sufficient to justify the stop of the Car. Ojudun has not\\n\\n\\n 5\\n\\f 1 argued that any of the court's factual findings in this regard are clearly erroneous;\\n\\n 2 rather, he challenges its conclusions of law as to the constitutionality of the stop of the\\n\\n 3 Car and the ensuing search and seizures. He also challenges the court's ruling that\\n\\n 4 Gray's hearsay statements were admissible under Fed. R. Evid. Rule 804(b)(3), the\\n\\n 5 exception for statements that are contrary to the declarant's punitive interest.\\n\\n\\n\\n\\n 6 A. Ojudun's Prior Conviction\\n\\n 7 Relevant events leading to Ojudun's prior conviction are not disputed\\n\\n 8 and/or are matters of record. In 2011, the United States Postal Inspection Service\\n\\n 9 began investigating a bank fraud scheme that involved deposits of counterfeit checks\\n\\n10 at banks located in New York, New Jersey, and Connecticut. Some scheme\\n\\n11 participants would open bank accounts using their own identities and would provide\\n\\n12 their account information and personal identification numbers to other participants,\\n\\n13 who would then deposit counterfeit checks into the accounts. Thereafter, participants\\n\\n14 would obtain money from the accounts by withdrawing cash at Automated Teller\\n\\n15 Machines (\\\"ATMs\\\"), or using debit cards at retail locations, or purchasing money\\n\\n16 orders at United States Post Offices.\\n\\n\\n\\n\\n 6\\n\\f 1 Ojudun and Gray were among the participants in the scheme. Ojudun\\n\\n 2 deposited counterfeit checks and withdrew cash from ATMs and local bank branches,\\n\\n 3 and he recruited others to do so. Gray supplied scheme participants with counterfeit\\n\\n 4 checks and drove them to various banks in order to cash them.\\n\\n 5 In 2012, Gray, following his plea of guilty, was convicted of bank fraud.\\n\\n 6 He was sentenced principally to time served, plus three years of supervised release.\\n\\n 7 In 2014, Ojudun was convicted, following his plea of guilty, of conspiracy to commit\\n\\n 8 bank fraud. He was sentenced to 40 months' imprisonment, to be followed by three\\n\\n 9 years of supervised release. Ojudun's three-year supervised-release term began upon\\n\\n10 his release from prison in May 2016.\\n\\n\\n\\n\\n11 B. SPD's January 2017 Stop of the Car and Arrest of Ojudun\\n\\n12 Medina's testimony at the suppression hearing included the following.\\n\\n\\n\\n\\n13 1. The Stop\\n\\n14 Around noon on January 12, 2017, Medina and SPD Detective Sergeant\\n\\n15 Mike Treiber (the \\\"Officers\\\") were driving in the center of Summit, a town in which\\n\\n16 the vast majority of the cars were registered in New Jersey, when they noticed the\\n\\n\\n 7\\n\\f 1 Car, a black BMW with New York license plates, drive about 100 feet past a Chase\\n\\n 2 Bank branch and double park. (See Hearing Transcript, April 19, 2017 (\\\"April Tr.\\\"),\\n\\n 3 at 20-24.) A \\\"disheveled looking\\\" white male--later identified as Cesaro--whose gaunt\\n\\n 4 face, dirty clothing, and general appearance were, in Medina's experience, \\\"consistent\\n\\n 5 with somebody who uses drugs\\\" (id. at 24), exited the Car, \\\"meander[ed]\\\" toward the\\n\\n 6 bank, walking diagonally in the street rather than crossing and using the sidewalk\\n\\n 7 (Hearing Transcript, June 16, 2017 (\\\"June Tr.\\\"), at 44; see id. at 50-51), and entered the\\n\\n 8 rear door to the bank (see April Tr. 29). The Car drove off; the Officers, whose\\n\\n 9 suspicions were aroused as to the possibility of bank fraud or narcotics trafficking,\\n\\n10 promptly parked in the first parking spot in the bank's parking lot--one of several\\n\\n11 available spaces--and watched the bank's rear entrance. They saw Cesaro exit the\\n\\n12 bank, and at about the same time saw the Car reappear and again drive about 100 feet\\n\\n13 past the bank, and stop. Cesaro, again walking diagonally in the street rather than\\n\\n14 crossing to use the sidewalk, entered the Car, which drove off after remaining\\n\\n15 stationary for some 30-60 seconds. (See id. at 28-31; June Tr. 55-58.)\\n\\n16 The Officers followed for a time, then signaled the Car to pull over and\\n\\n17 stop.\\n\\n\\n\\n\\n 8\\n\\f 1 2. The Questioning, the Search, and the Arrests\\n\\n 2 After the Car stopped, Medina went to the passenger side, identified\\n\\n 3 himself as an SPD detective, and asked the driver--Gray--for credentials. Gray\\n\\n 4 produced a registration, an insurance card, and his driver's license, but as he was\\n\\n 5 rummaging for the documents, Medina asked how the men had wound up in\\n\\n 6 Summit; Gray responded that they had taken a wrong exit and had gotten lost trying\\n\\n 7 to go to the mall in nearby Short Hills, New Jersey. (See April Tr. 36; June Tr. 78.)\\n\\n 8 Medina then asked how they all knew each other; Gray said the front seat passenger--\\n\\n 9 who was Ojudun--was his friend and that the back seat passenger was his \\\"uncle.\\\"\\n\\n10 (April Tr. 36.) But when Medina asked what Gray's uncle's name was, Gray just said\\n\\n11 \\\"What?\\\" which Medina's training and experience caused him to view as a stalling\\n\\n12 tactic--a view enhanced by Cesaro's appearance and his odd path to and from the\\n\\n13 bank, as well as by the driver's failure to avail himself of any of the empty spaces in\\n\\n14 the bank's parking lot or to stop in front of the bank to drop Cesaro off or pick him\\n\\n15 up, instead of twice proceeding 100 feet past the bank. Upon Gray's apparently\\n\\n16 evasive response, Medina told Cesaro to get out of the Car.\\n\\n17 Medina took Cesaro to the rear of the Car and attempted to have him\\n\\n18 place his hands on the rear of the Car. Cesaro instead resisted, kept one hand in his\\n\\n\\n 9\\n\\f 1 pocket, and elbowed Medina in the ribs. Medina grabbed Cesaro and threw him to\\n\\n 2 the ground. While subduing Cesaro, Medina saw the Car's brake lights flare and,\\n\\n 3 fearing that the Car was about to either flee or back over him, yelled a warning to\\n\\n 4 Treiber. Treiber pulled his pistol and pointed it toward Gray, telling him to turn off\\n\\n 5 the engine, and summoned backup police officers.\\n\\n 6 When more officers arrived a few minutes later, Treiber holstered his\\n\\n 7 gun, and Gray and Ojudun were taken out of the Car. Cesaro was placed under\\n\\n 8 arrest for assaulting Medina and was searched incident to that arrest. (See June\\n\\n 9 Tr. 17.) In Cesaro's pockets, Medina found, inter alia, the remnants of a crack pipe that\\n\\n10 had broken when Cesaro was taken to the ground; a credit card in the name of one\\n\\n11 Frank Langendorf (see id. at 26); a New York State prison inmate identification card\\n\\n12 bearing Cesaro's name and picture (see April Tr. 40-41); and a Pennsylvania driver's\\n\\n13 license in Langendorf's name but bearing a picture of Cesaro (see id. at 41). One of the\\n\\n14 backup SPD officers took a cell-phone photograph of Cesaro and went into the bank\\n\\n15 with it to determine what Cesaro had done there.\\n\\n16 Meanwhile, Medina asked Gray, as the Car's driver, whether he would\\n\\n17 consent to a search of the Car. Neither Gray nor Ojudun had been arrested at this\\n\\n18 point. (See June Tr. 17.) Gray gave his consent.\\n\\n\\n 10\\n\\f 1 When, in a normal speaking voice, Medina asked Gray for consent to\\n\\n 2 search the Car, Ojudun--seated on the curb at the rear of the car--was no more than\\n\\n 3 five feet away; and at no point did Ojudun reveal that the Car belonged to his\\n\\n 4 girlfriend, or state that Gray was not authorized to drive it or to consent to its search,\\n\\n 5 or say that Ojudun himself objected to the search. After Gray gave his consent,\\n\\n 6 Medina, at the rear of the car to search the trunk, told Gray that he could have the\\n\\n 7 search halted at any time if he chose. Ojudun, still seated on the curb at the rear of\\n\\n 8 the Car, said nothing. (See June Tr. 18-19.) No one present suggested that Gray\\n\\n 9 lacked authority to consent to a search. (See id. at 19; April Tr. 44-46.)\\n\\n10 In searching the Car, officers immediately found, on the seat that had\\n\\n11 been occupied by Ojudun, an envelope containing two checks made payable to Frank\\n\\n12 Langendorf. (See June Tr. 18.) In the meantime, the officer who had taken Cesaro's\\n\\n13 picture to show to bank employees learned that Cesaro had cashed a $2,845.46 check\\n\\n14 that was payable to Frank Langendorf and had displayed a Pennsylvania driver's\\n\\n15 license in that name. (See id. at 19-21.) Based on the discovery of the two Langendorf\\n\\n16 checks on Ojudun's seat and the information provided by the bank as to the\\n\\n17 Langendorf check just cashed by Cesaro, the officers then \\\"placed everybody under\\n\\n18 arrest.\\\" (Id. at 24-25.)\\n\\n\\n 11\\n\\f 1 When Ojudun was searched incident to his arrest, the officers found that\\n\\n 2 he had cash in two pockets. In one, he had $233 in worn bills that looked to have\\n\\n 3 been in circulation for some time. (See id. at 25-26.) In the other, he had fresh bills\\n\\n 4 totaling exactly $2,845. (See id. at 25.)\\n\\n 5 In the continuing search of the Car, officers found in the center console\\n\\n 6 an envelope containing pedigree information for Langendorf. They also found a\\n\\n 7 paper that contained \\\"what looked to be practicing of signatures of Mr. [F]rank\\n\\n 8 Langendorf which matched the endorsed portion of the check cashed by Mr. Cesaro.\\\"\\n\\n 9 (June Tr. 26). SPD officers contacted the police department in nearby Millburn, New\\n\\n10 Jersey, where Langendorf resided, and learned that he had several times complained\\n\\n11 of identity theft. Millburn police arrived at the scene of the arrests in Summit and\\n\\n12 confirmed that the occupants of the Car possessed information belonging to the real\\n\\n13 Frank Langendorf.\\n\\n\\n\\n\\n14 C. Gray's Postarrest Statements Incriminating Ojudun\\n\\n15 At SPD headquarters, Medina conducted an interview of Gray, which\\n\\n16 was videotaped. As described in greater detail in Part II.B. below, after initially\\n\\n17 denying all knowledge of a fraud scheme, Gray eventually admitted that he had been\\n\\n\\n 12\\n\\f 1 promised $100 by Cesaro to drive Ojudun and Cesaro to the bank in order to cash a\\n\\n 2 check. Gray said he saw Ojudun give the check to Cesaro to take into the bank.\\n\\n 3 Although Gray had waived his Miranda rights for the interview, it was\\n\\n 4 established at the VOSR hearing that he would be unavailable to testify because of his\\n\\n 5 assertion of his Fifth Amendment privilege against self-incrimination. (See June\\n\\n 6 Tr. 4-5.) Ojudun moved to exclude any evidence as to Gray's statements as hearsay.\\n\\n\\n\\n\\n 7 D. The District Court's Rulings\\n\\n 8 1. On the Challenge to the Stop\\n\\n 9 At the close of the June hearing, the district court denied Ojudun's\\n\\n10 motion to suppress evidence seized as a result of the stop of the Car. It found\\n\\n11 Medina's testimony to be \\\"very credible\\\" and concluded, based on the totality of the\\n\\n12 circumstances, that the \\\"accumulation of facts\\\" resulting from the Officers'\\n\\n13 observations of, inter alia, the unusual movements of the Car and of Cesaro--described\\n\\n14 in Part I.B.1. above--provided a \\\"very solid basis\\\" for reasonable suspicion to support\\n\\n15 the initial stop of the Car. (June Tr. 108). The court stated that its conclusion was \\\"not\\n\\n16 based upon one fact but based upon an accumulation of facts . . . in their totality . . . .\\\"\\n\\n17 (Id. at 108-09.)\\n\\n\\n 13\\n\\f 1 2. On the Challenge to the Search for Lack of Consent\\n\\n 2 Just prior to the start of the suppression hearing, Ojudun filed a\\n\\n 3 declaration challenging the government's position that there had been a valid consent\\n\\n 4 to search the Car. Ojudun presented evidence that the Car belonged to his girlfriend,\\n\\n 5 stated that he had not consented to the search, and offered to call his girlfriend to\\n\\n 6 testify that she had not authorized Gray to drive her car or to consent to its search.\\n\\n 7 The government conceded with respect to ownership and the fact that the owner and\\n\\n 8 Ojudun did not give consent. (See April Tr. 13.) The district court noted that the\\n\\n 9 question remained whether Gray had apparent authority to consent to a search and\\n\\n10 whether it was reasonable for the Officers to believe he had authority.\\n\\n11 After the suppression hearing, the court found \\\"no information to\\n\\n12 suggest that Gray was not in control of the vehicle and didn't have apparent authority\\n\\n13 over [it].\\\" (June Tr. at 110.) Even though Gray was not the Car's owner, the court\\n\\n14 found that he had apparent authority and control over it, as he was driving it when\\n\\n15 it was first seen stopping at the bank, when it had rounded the block and returned to\\n\\n16 the bank, and when it was driven away after picking up Cesaro. Although Medina\\n\\n17 could have learned by examining the Car's registration that it belonged to someone\\n\\n18 other than Gray, the court concluded that that information would not have dispelled\\n\\n\\n 14\\n\\f 1 the appearance that Gray was authorized to drive and exercise control over the Car.\\n\\n 2 Gray gave Medina the requested documents (see, e.g., Ojudun brief on appeal at 22\\n\\n 3 (the Car's registration \\\"w[as] immediately handed over\\\")) without providing any\\n\\n 4 indication that he did not have permission or authority to use or exercise dominion\\n\\n 5 over the Car. And when requested, he promptly gave his consent to the search,\\n\\n 6 giving no indication that he lacked authority to do so.\\n\\n 7 Ojudun himself during the events of January 12 made no mention of the\\n\\n 8 fact that the Car was owned by his girlfriend; he did not in any way indicate that\\n\\n 9 Gray lacked permission to drive the Car, or to exercise full authority over it, or to\\n\\n10 consent to its search. The district court found that Ojudun \\\"was in sufficient\\n\\n11 proximity\\\" to hear, inter alia, both Medina's request that Gray consent to a search and\\n\\n12 Medina's ensuing statements to Gray that, even having given his consent, Gray could\\n\\n13 have the search terminated at any time; the court found that \\\"there was no[]\\n\\n14 suggestion by . . . Ojudun or anyone that Mr. Gray did not have authority to consent\\n\\n15 to search . . . .\\\" (June Tr. 113.) The court concluded that Medina had reasonably relied\\n\\n16 on Gray's apparent authority to consent to the vehicle search. (See id. at 110-13; June\\n\\n17 23, 2017 Endorsement Order confirming oral ruling.)\\n\\n\\n\\n\\n 15\\n\\f 1 3. The Admission of Gray's Postarrest Statements\\n\\n 2 At the start of the June session of the VOSR hearing, the district court\\n\\n 3 denied Ojudun's motion to exclude evidence of Gray's interview statements to\\n\\n 4 Medina. The court ruled that all of Gray's statements were within the Rule 804(b)(3)\\n\\n 5 exception for statements against the declarant's penal interest. (See Part II.B. below.)\\n\\n\\n\\n\\n 6 II. DISCUSSION\\n\\n\\n\\n\\n 7 On appeal, Ojudun contends that the district court erred (A) in denying\\n\\n 8 his Fourth Amendment motion to suppress on the grounds that the Officers lacked\\n\\n 9 reasonable suspicion to stop the Car and that Gray lacked authority to consent to the\\n\\n10 search, and (B) in concluding that Gray's hearsay statements incriminating Ojudun\\n\\n11 were admissible under Rule 804(b)(3) as statements against Gray's interest. We reject\\n\\n12 Ojudun's Fourth Amendment contentions but find merit in his Rule 804(b)(3)\\n\\n13 challenge.\\n\\n\\n\\n\\n14 A. The Fourth Amendment Challenges to the Stop and the Search\\n\\n15 Ojudun's contentions that the district court erred in rejecting his Fourth\\n\\n\\n 16\\n\\f 1 Amendment challenges to the stop and search of the Car do not require extended\\n\\n 2 discussion. In considering challenges to the denial of a suppression motion, we\\n\\n 3 review the district court's factual findings for clear error and its conclusions of law de\\n\\n 4 novo. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.), cert. denied, 135\\n\\n 5 S. Ct. 301 (2014). Ojudun has not argued that any of the court's factual findings\\n\\n 6 described in Part I.D. above are clearly erroneous; and we see no error of law.\\n\\n 7 It is well established that, consistent with the Fourth Amendment, a\\n\\n 8 \\\"government law enforcement agent may subject an individual to an investigative\\n\\n 9 stop upon a reasonable suspicion that the individual is, has been, or is about to be\\n\\n10 engaged in criminal activity. . . . The agent is said to have a reasonable suspicion\\n\\n11 when he is in possession of 'specific and articulable facts which, taken together with\\n\\n12 rational inferences from those facts, reasonably warrant [the] intrusion.'\\\" United States\\n\\n13 v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968));\\n\\n14 see generally United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975) (the\\n\\n15 interception of a moving vehicle, causing it to stop for questioning, is not so intrusive\\n\\n16 that probable cause is required, so long as it is supported by specific articulable facts\\n\\n17 that, together with rational inferences from those facts, reasonably warrant suspicion\\n\\n18 that the vehicle contains persons who are engaging in or are about to engage in\\n\\n\\n 17\\n\\f 1 unlawful activity). The \\\"touchstone of the Fourth Amendment is reasonableness.\\\"\\n\\n 2 Florida v. Jimeno, 500 U.S. 248, 250 (1991). \\\"Reasonableness, in turn, is measured in\\n\\n 3 objective terms by examining the totality of the circumstances.\\\" Ohio v. Robinette, 519\\n\\n 4 U.S. 33, 39 (1996).\\n\\n 5 As described in Part I.D.1. above, the district court applied these\\n\\n 6 principles in evaluating the Officers' assessment of their observations of the unusual\\n\\n 7 conduct described in Part I.B. above. We see no error in the court's conclusion that\\n\\n 8 the stop of the Car was supported by reasonable suspicion, and we affirm the denial\\n\\n 9 of Ojudun's challenge to the stop substantially for the reasons stated by the district\\n\\n10 court.\\n\\n11 Although Ojudun makes an additional argument that the record does not\\n\\n12 support a finding that the Officers had reason to stop the Car for a violation of local\\n\\n13 traffic laws, we need not address that argument, as the district court sufficiently\\n\\n14 rested its decision on the ground described above.\\n\\n15 It is also well established that the Fourth Amendment does not forbid a\\n\\n16 warrantless search of private property pursuant to consent, voluntarily given, by the\\n\\n17 owner of the property, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), or\\n\\n18 by \\\"another person who has authority to consent by reason of that person's 'common\\n\\n\\n 18\\n\\f 1 authority over or other sufficient relationship to the premises,'\\\" United States v. McGee,\\n\\n 2 564 F.3d 136, 138 (2d Cir. 2009) (\\\"McGee\\\") (quoting United States v. Matlock, 415 U.S.\\n\\n 3 164, 171 (1974)), or by a person who in fact lacked authority to consent but who\\n\\n 4 \\\"reasonably appeared to the police to possess authority to consent to the search,\\\"\\n\\n 5 McGee, 564 F.3d at 139. The requirement imposed by the Fourth Amendment's\\n\\n 6 touchstone of reasonableness \\\"is not that the[ officers] always be correct, but that they\\n\\n 7 always be reasonable.\\\" Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Thus, where\\n\\n 8 the person who gave consent did not have actual authority, the question is \\\"whether\\n\\n 9 the officers reasonably believed that [he] had the authority to consent.\\\" Id. at 189.\\n\\n10 In challenging the district court's conclusion that Gray had apparent\\n\\n11 authority to consent to the search of the Car and that it was reasonable for the Officers\\n\\n12 to believe that he had authority, Ojudun argues that \\\"no reasonable officer in\\n\\n13 Medina's position would have assumed that Gray had . . . authority\\\" to consent to a\\n\\n14 search (Ojudun brief on appeal at 22); but he points to no evidence other than the fact\\n\\n15 that the Car's registration was in a name other than that of Gray. While Ojudun states\\n\\n16 that \\\"Gray had only temporary access to the vehicle, . . . could not regularly access the\\n\\n17 vehicle, . . . and did not have permission to drive the vehicle\\\" (id.), not one of those\\n\\n18 limitations was observable by the Officers, and, as the district court found (see Part\\n\\n\\n 19\\n\\f 1 I.D.2. above), none was hinted at by Ojudun on January 12. Gray was the only person\\n\\n 2 the Officers observed driving the Car; when asked for license and registration, Gray\\n\\n 3 \\\"immediately handed [them] over\\\" (Ojudun brief on appeal at 22); and although\\n\\n 4 Gray's consent to search the car was requested and discussed within earshot of at\\n\\n 5 least Ojudun, none of the occupants of the car suggested in any manner that Gray, the\\n\\n 6 driver, lacked authority to consent to a search. We conclude that the district court did\\n\\n 7 not err in ruling that it was reasonable for the Officers to believe that Gray had such\\n\\n 8 authority.\\n\\n\\n\\n\\n 9 B. The Challenge to the Admission of Gray's Postarrest Statements\\n\\n10 Gray's postarrest interview by Medina was some 27 minutes long. At the\\n\\n11 beginning, Gray claimed that he had come to New Jersey simply to visit an outlet at\\n\\n12 the Short Hills mall that sold new or lightly used sneakers. For approximately the\\n\\n13 first half of the interview, Gray denied his involvement in any fraudulent scheme and\\n\\n14 persisted in proclaiming that single benign purpose. However, as Medina testified,\\n\\n15 Gray eventually conceded \\\"that he knew that they were leaving the Bronx to come to\\n\\n16 that bank and that they were going to cash the check\\\" (June Tr. 32).\\n\\n\\n\\n\\n 20\\n\\f 1 1. Gray's Videotaped Statement\\n\\n 2 The videotape reveals that Gray said he became the driver for the\\n\\n 3 January 12 trip because he was a professional driver and preferred driving to being\\n\\n 4 driven. And although he said he had never heard of Ojudun or Cesaro engaging in\\n\\n 5 fraudulent banking activity before, Gray eventually admitted that he had known from\\n\\n 6 the start of the trip that Ojudun's and Cesaro's intentions were to cash a check at the\\n\\n 7 bank in Summit. (Gray also said near the start of the interview that he had never\\n\\n 8 been involved previously in any activity of this sort; but toward the end he admitted\\n\\n 9 that he had previously been \\\"arrested\\\" for this kind of conduct. See generally Part I.A.\\n\\n10 above.) Gray said that Ojudun had called him on the morning of January 12 to make\\n\\n11 plans to drive to New Jersey, that Ojudun already had possession of Ojudun's\\n\\n12 girlfriend's car, and that Cesaro promised to pay Gray $100 to drive.\\n\\n13 Gray said he knew when he got into the Car that the plan was to go to\\n\\n14 Summit to cash a check. He said, however, that he had no conversation with Ojudun\\n\\n15 or Cesaro as to the banking aspects of the trip; that he did not participate in selecting\\n\\n16 the bank at which the check would be cashed and did not know why the bank in\\n\\n17 question had been chosen; that he did not know the source of the checks or how\\n\\n18 many such checks were in the Car; that he did not know the provenance of Cesaro's\\n\\n\\n 21\\n\\f 1 identification; that he did not know how much money Cesaro or Ojudun respectively\\n\\n 2 would receive from the check; and that he did not see, or know that, Cesaro gave\\n\\n 3 Ojudun money from the cashed check.\\n\\n 4 Gray said that when he stopped the Car to let Cesaro get out to go to the\\n\\n 5 bank, he saw Ojudun give Cesaro a check. Gray said he did not know exactly what\\n\\n 6 Cesaro was going to do in the bank once Gray dropped him off, although he knew the\\n\\n 7 general plan was to cash a check. Gray said he was not paying close attention to the\\n\\n 8 scheme because his principal purpose in driving to Summit was to look at sneakers\\n\\n 9 at the mall. He said he only knew they were to go to the mall after the check was\\n\\n10 cashed.\\n\\n\\n\\n\\n11 2. The District Court's Ruling\\n\\n12 Over Ojudun's objection that the evidence of Gray's statements was\\n\\n13 hearsay, the district court admitted the videotaped interview, and Medina's\\n\\n14 description of it, ruling that it fell within Fed. R. Evid. 804(b)(3)'s exception for\\n\\n15 statements against the declarant's punitive interest. The court reasoned as follows:\\n\\n16 When somebody is sitting there, while it is true that Mr. Gray\\n17 starts off talking to the interviewing officer and pushing back\\n18 about any involvement, eventually, he concedes involvement, though\\n19 he does, I agree, try to push more involvement off on others than he\\n 22\\n\\f 1 accepts for himself. But he puts himself there and he starts to concede\\n 2 some of the relevant facts. That at the very least is a statement\\n 3 against interest for a conspiracy claim. So it doesn't have to be\\n 4 what is actually charged for it to be a statement against interest\\n 5 but he is putting himself in the vicinity and in the circumstances\\n 6 where he's driving somebody in this car cause he knows how to\\n 7 drive to a location where he understands there's going to be bank fraud.\\n 8 So now while he may say, hey, I wasn't the really, the bad doer--\\n 9 and I'm summarizing . . . . [t]hat is a statement certainly against\\n10 his interest. He could not have thought that that statement was\\n11 something that could not result in a potential criminal penalty.\\n12 Perhaps a lesser criminal penalty than others might have suffered\\n13 or feared but a statement as against interest can be construed at\\n14 the level of a violation. But here we are not even talking about\\n15 that. We're talking some form of criminal conduct that would be\\n16 well above that level.\\n\\n17 (June Tr. 5-6 (emphases added).)\\n\\n18 Although a district court's decision to admit evidence is reviewed for\\n\\n19 abuse of discretion, see, e.g., United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004)\\n\\n20 (\\\"Saget\\\"), cert. denied, 543 U.S. 1079 (2005); United States v. Jones, 299 F.3d 103, 112 (2d\\n\\n21 Cir. 2002); United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998), the court \\\"abuses or\\n\\n22 exceeds the discretion accorded to it when (1) its decision rests on [(a)] an error of law\\n\\n23 (such as application of the wrong legal principle) or [(b)] a clearly erroneous factual\\n\\n24 finding, or (2) its decision . . . cannot be located within the range of permissible\\n\\n25 decisions,\\\" Jones, 299 F.3d at 112 (internal quotation marks omitted). In light of the\\n\\n\\n\\n 23\\n\\f 1 following legal principles, we have several difficulties with the court's decision in this\\n\\n 2 case.\\n\\n\\n\\n\\n 3 3. Statements Against Penal Interest\\n\\n 4 Rule 804 provides that the hearsay rule does not exclude evidence of a\\n\\n 5 statement against an unavailable declarant's penal interest if the\\n\\n 6 statement [is one] that:\\n\\n 7 (A) a reasonable person in the declarant's position would have\\n 8 made only if the person believed it to be true because, when made, it . . .\\n 9 had so great a tendency . . . to expose the declarant to . . . criminal\\n10 liability; and\\n\\n11 (B) is supported by corroborating circumstances that clearly\\n12 indicate its trustworthiness, if it is offered in a criminal case as one that\\n13 tends to expose the declarant to criminal liability.\\n\\n14 Fed. R. Evid. 804(b)(3). The threshold questions are whether the offered \\\"statement\\\"\\n\\n15 of the declarant would be perceived by \\\"a reasonable person in the declarant's shoes\\\"\\n\\n16 to be \\\"detrimental to his or her own penal interest,\\\" Saget, 377 F.3d at 231.\\n\\n17 First, although the word \\\"statement\\\" might be read broadly to refer to a\\n\\n18 declarant's \\\"entire confession,\\\" Williamson v. United States, 512 U.S. 594, 599 (1994), it\\n\\n19 must instead, in light of the principles underlying the Rule, be construed to refer to,\\n\\n20 and to require assessment of, each assertion individually, see id. at 600-01.\\n 24\\n\\f 1 Rule 804(b)(3) is founded on the commonsense notion that reasonable\\n 2 people, even reasonable people who are not especially honest, tend not to\\n 3 make self-inculpatory statements unless they believe them to be true.\\n 4 This notion simply does not extend to the broader definition of\\n 5 \\\"statement.\\\" The fact that a person is making a broadly self-inculpatory\\n 6 confession does not make more credible the confession's non-self-\\n 7 inculpatory parts. One of the most effective ways to lie is to mix\\n 8 falsehood with truth . . . .\\n\\n 9 Id. at 559-600 (emphases added). Thus,\\n\\n10 [t]he district court may not just assume for purposes of Rule 804(b)(3)\\n11 that a statement is self-inculpatory because it is part of a fuller\\n12 confession, and this is especially true when the statement implicates\\n13 someone else. \\\"[T]he arrest statements of a codefendant have\\n14 traditionally been viewed with special suspicion. Due to his strong\\n15 motivation to implicate the defendant and to exonerate himself, a\\n16 codefendant's statements about what the defendant said or did are less\\n17 credible than ordinary hearsay evidence.\\\"\\n\\n18 Williamson, 512 U.S. at 601 (quoting Lee v. Illinois, 476 U.S. 530, 541 (1986) (emphases\\n\\n19 ours)).\\n\\n20 Second, as to any particular statement, \\\"[t]he question under Rule\\n\\n21 804(b)(3) is always,\\\" in light of all surrounding circumstances, \\\"whether the statement\\n\\n22 was sufficiently against the declarant's penal interest that a reasonable person in the\\n\\n23 declarant's position would not have made the statement unless believing it to be true.\\\"\\n\\n24 Id. at 603-04 (internal quotation marks omitted) (emphasis added). Thus, while some\\n\\n25 parts of a declarant's statement may be clearly self-incriminatory, \\\"other parts, . . .\\n\\n 25\\n\\f 1 especially the parts that implicated [the defendant, and] did little to subject [the\\n\\n 2 declarant] himself to criminal liability,\\\" are not within the scope of Rule 804(b)(3)(A).\\n\\n 3 Id. at 604; see id. (\\\"A reasonable person in [the declarant's] position might even think\\n\\n 4 that implicating someone else would decrease his practical exposure to criminal\\n\\n 5 liability, at least so far as sentencing goes. Small fish in a big conspiracy often get\\n\\n 6 shorter sentences than people who are running the whole show, . . . especially if the\\n\\n 7 small fish are willing to help the authorities catch the big ones.\\\"). Accordingly, the\\n\\n 8 court must \\\"inquire[] whether each of the statements in [the declarant's] confession\\n\\n 9 was truly self-inculpatory.\\\" Id. (emphases added). A particular statement by the\\n\\n10 declarant is not within \\\"the penal interest exception\\\" if it incriminated the defendant\\n\\n11 \\\"exclusively.\\\" United States v. Wexler, 522 F.3d 194, 202-03 (2d Cir. 2008).\\n\\n12 In light of these principles, we have several difficulties with the district\\n\\n13 court's treatment of the Gray interview. First, the court did not focus on each of his\\n\\n14 statements individually to determine which of them would reasonably have been\\n\\n15 viewed as so exposing him to criminal liability as to fall within Rule 804(b)(3)(A).\\n\\n16 Rather, as shown above, the court commented generally on Gray's statement as a\\n\\n17 whole. To be sure, several of his statements were plainly contrary to his own penal\\n\\n18 interest. He admitted--eventually--that he knew when he got into the Car at the start\\n\\n\\n 26\\n\\f 1 of the trip that the plan was to go to the bank in Summit to cash a check, and he\\n\\n 2 admitted that he was going to be paid $100 by Cesaro to drive Ojudun and Cesaro\\n\\n 3 there. These statements were contrary to Gray's punitive interest, as the district court\\n\\n 4 correctly noted that admitting to \\\"driving somebody in this car . . . to a location where\\n\\n 5 he understands there's going to be bank fraud\\\" (June Tr. 5 (emphasis added))\\n\\n 6 provided evidence that could lead to Gray's conviction for conspiracy to commit\\n\\n 7 financial fraud. The fact that these statements also tended to implicate Ojudun, who\\n\\n 8 had procured the Car, and Cesaro, who had cashed the check, did not lessen their\\n\\n 9 detriment to Gray's interest because his statement was evidence of his foreknowledge\\n\\n10 of and assistance in the commission of the crime. But these statements were but a\\n\\n11 small part of Gray's overall interview.\\n\\n12 Second, the court did not at all address the Gray statement that was most\\n\\n13 damaging to Ojudun, Cesaro having been the person who promised Gray $100 and\\n\\n14 physically cashed the counterfeit check. Gray said that when he stopped the Car to\\n\\n15 let Cesaro out to go to the bank, Ojudun gave Cesaro the check. This was a statement\\n\\n16 that tied Ojudun squarely to the execution of the fraud, without in any way further\\n\\n17 implicating Gray. We cannot say that this statement fell within the scope of Rule\\n\\n18 804(b)(3)(A).\\n\\n\\n 27\\n\\f 1 Third, even where the court has properly found that a particular\\n\\n 2 statement is against the declarant's own penal interest within the meaning of Rule\\n\\n 3 804(b)(3)(A), the court must then determine whether there are \\\"corroborating\\n\\n 4 circumstances that clearly indicate,\\\" Fed. R. Evid. 804(b)(3)(B), \\\"both the declarant's\\n\\n 5 trustworthiness and the truth of the statement,\\\" United States v. Lumpkin, 192 F.3d 280,\\n\\n 6 287 (2d Cir. 1999). For those conditions to be satisfied, \\\"the inference of\\n\\n 7 trustworthiness from the proffered 'corroborating circumstances' must be strong, not\\n\\n 8 merely allowable.\\\" United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484\\n\\n 9 U.S. 966 (1987).\\n\\n10 Here, most of Gray's statements, made to a law enforcement official,\\n\\n11 were designed to minimize his involvement in the planned fraud and to deflect\\n\\n12 responsibility onto Ojudun and Cesaro. Even after he abandoned his initial claim of\\n\\n13 total innocence, he claimed, as detailed in Part II.B.1. above, total ignorance about,\\n\\n14 inter alia, bank selection, the presence of counterfeit checks in the Car, cash in the Car,\\n\\n15 provenance of fraudulent identifications, division of proceeds, and the source of the\\n\\n16 checks. The thrust of Gray's statements, once Medina persuaded him that it would\\n\\n17 be in his interest to abandon his claim of innocence, was that he knew Ojudun and\\n\\n18 Cesaro planned to cash a check. The record does not indicate that the district court\\n\\n\\n 28\\n\\f 1 made any inquiry as to whether there were corroborating circumstances to indicate\\n\\n 2 clearly that such of Gray's statements as fell within Rule 804(b)(3)(A) were\\n\\n 3 trustworthy to the extent that they were made to a law enforcement official and\\n\\n 4 sought to deflect responsibility onto Ojudun.\\n\\n 5 In sum, we conclude that the district court, in holding Gray's entire set\\n\\n 6 of statements to be within the scope of Rule 804(b)(3), erred in failing to make a\\n\\n 7 particularized assessment of the various individual assertions, in failing to determine\\n\\n 8 whether the relevant assertions were sufficiently corroborated as required by Rule\\n\\n 9 804(b)(3)(B), and in failing to recognize that the Gray statement that was most\\n\\n10 damaging to Ojudun was not within Rule 804(b)(3) because it did not implicate Gray\\n\\n11 at all.\\n\\n12 Although the government contends that any error with respect to the\\n\\n13 admission of Gray's post-arrest statement was harmless, we disagree. The district\\n\\n14 court stated that \\\"[t]he post arrest statement of Mr. Gray indicates that Mr. Gray knew\\n\\n15 that the check would be given from Mr. Ojudun to Mr. Cesaro and that Mr. Cesaro\\n\\n16 then we know as a matter of fact exited the vehicle, went into the bank and passed the\\n\\n17 check.\\\" (June Tr. 114.) In view of the district court's reliance on a portion of Gray's\\n\\n\\n\\n 29\\n\\f 1 statement that was not against his penal interest, the error under Rule 804(b)(3) was\\n\\n 2 not harmless.\\n\\n 3 Accordingly, we vacate the judgment and remand for the court to\\n\\n 4 conduct the required particularized analyses. The court should determine which of\\n\\n 5 Gray's statements could properly be admitted under Rule 804(b)(3), and in light of the\\n\\n 6 admissible evidence, determine whether the VOSR charges against Ojudun have been\\n\\n 7 established by a preponderance of the evidence.\\n\\n\\n\\n\\n 8 4. Rule 32.1 of the Federal Rules of Criminal Procedure\\n\\n 9 Finally, we note that, as to such of Gray's statements as are not within the\\n\\n10 scope of Evidence Rule 804(b)(3), the court may consider whether they may properly\\n\\n11 be admitted instead pursuant to Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\\n\\n12 Procedure. While the Sixth Amendment right of confrontation that is applicable in\\n\\n13 a criminal trial does not apply in a proceeding for probation revocation, parole\\n\\n14 revocation, or revocation of supervised release because such a proceeding \\\"is not a\\n\\n15 stage of a criminal prosecution,\\\" United States v. Aspinall, 389 F.3d 332, 342 (2d Cir.\\n\\n16 2004) (\\\"Aspinall\\\") (supervised release) (internal quotation marks omitted), abrogated\\n\\n\\n\\n 30\\n\\f 1 on other grounds by United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); see\\n\\n 2 Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole); Gagnon v. Scarpelli, 411 U.S. 778,\\n\\n 3 782 (1973) (probation), the accused in such a revocation proceeding enjoys certain\\n\\n 4 protections under principles of due process, such as \\\"the right to confront and cross-\\n\\n 5 examine adverse witnesses (unless the hearing officer specifically finds good cause\\n\\n 6 for not allowing confrontation),\\\" Morrissey, 408 U.S. at 489.\\n\\n 7 This more limited right of confrontation is embodied in the Criminal\\n\\n 8 Rules provision that the defendant in a revocation hearing \\\"is entitled to . . . an\\n\\n 9 opportunity to . . . question any adverse witness unless the court determines that the\\n\\n10 interest of justice does not require the witness to appear.\\\" Fed. R. Crim. P.\\n\\n11 32.1(b)(2)(C). The balancing analysis envisioned by this Rule \\\"need not be made\\n\\n12 where the proffered out-of-court statement is admissible under an established\\n\\n13 exception to the hearsay rule.\\\" Aspinall, 389 F.3d at 344; see, e.g., Jones, 299 F.3d at 113.\\n\\n14 But for statements that would be inadmissible as hearsay under the Federal Rules of\\n\\n15 Evidence, determinations as to good cause and the interests of justice \\\"require[] the\\n\\n16 court to balance the defendant's interest in confronting the declarant against . . . the\\n\\n17 government's reasons for not producing the witness and the reliability of the\\n\\n\\n\\n 31\\n\\f1 proffered hearsay.\\\" United States v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (internal\\n\\n2 quotation marks omitted), cert. denied, 568 U.S. 1092 (2013).\\n\\n\\n\\n\\n3 CONCLUSION\\n\\n4 We have considered all of parties' arguments in support of their\\n\\n5 respective positions on this appeal and, except to the extent indicated above, have\\n\\n6 found them to be without merit. The judgment is vacated, and the matter is\\n\\n7 remanded for proceedings consistent with the foregoing.\\n\\n\\n\\n\\n 32\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":490,"cells":{"id":{"kind":"number","value":4589285,"string":"4,589,285"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Orlando v. Nassau Cty. Dist. Atty's Off."},"decision_date":{"kind":"string","value":"2019-02-11"},"docket_number":{"kind":"string","value":"17-2390"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"DRONEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐2390 \\n Orlando v. Nassau Cty. Dist. Atty’s Off. \\n\\n\\n\\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4 \\n 5 \\n 6 August Term, 2017 \\n 7 No. 17‐2390 \\n 8 \\n 9 MARK ORLANDO, \\n10 Petitioner‐Appellant, \\n11 \\n12 v. \\n13 \\n14 NASSAU COUNTY DISTRICT ATTORNEY’S OFFICE, \\n15 Respondent‐Appellee.1 2 \\n16 \\n17 \\n18 \\n19 \\n20 \\n\\n 1 The Clerk of Court is directed to amend the caption as set forth above. \\n\\n 2\\n The Nassau County District Attorney’s Office has proceeded as respondent in \\n this case, without objection. However, “§ 2254 petitioners challenging present \\n physical custody [should] name either the warden or the chief state penal officer \\n as a respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 450 n.18 (2004) (emphasis \\n removed) (citing Rule 2(a) of the Rules Governing Section 2254 Cases in the United \\n States District Courts; Advisory Committeeʹs Note on Rule 2(a), 28 U.S.C., pp. 469‐\\n 470 (adopted in 1976) (stating that this is the rule in the “usual case”)). As such, \\n the district court is directed on remand (and prior to issuing the writ) to substitute \\n as respondent the warden of Orlando’s place of incarceration. \\n\\n \\n\\n\\n\\n\\n 1 \\n 2 \\n 3 Appeal from the United States District Court \\n 4 for the Eastern District of New York. \\n 5 No. 11‐cv‐3992 — Edward R. Korman, Judge. \\n 6 \\n 7 \\n 8 ARGUED: MAY 30, 2018 \\n 9 DECIDED: FEBRUARY 11, 2019 \\n10 \\n11 Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.* \\n12 \\n13 \\n14 Appeal from a judgment of the United States District Court for \\n15 the Eastern District of New York (Korman, J.) denying Petitioner‐\\n16 Appellant Mark Orlando’s petition for a writ of habeas corpus \\n17 pursuant to 28 U.S.C. § 2254. Orlando was convicted of murder in the \\n18 second degree in the Supreme Court of New York, Nassau County. \\n19 During the homicide investigation, police detectives separately \\n20 interrogated Orlando and his alleged accomplice. The latter \\n21 confessed that he had shot the victim, but that Orlando had hired him \\n22 to commit the murder. At Orlando’s trial, a detective was permitted \\n23 to testify that the accomplice had stated that Orlando paid him to \\n24 commit the murder. The accomplice, who was tried separately, did \\n25 not testify at Orlando’s trial. Orlando contends that notwithstanding \\n26 a limiting instruction by the trial court, the detective’s testimony \\n27 violated the Confrontation Clause of the Sixth Amendment and that \\n28 the state court’s ruling to the contrary constituted an objectively \\n29 unreasonable application of clearly established federal law. We \\n\\n *\\n Judge Michael P. Shea, United States District Court for the District of Connecticut, \\n sitting by designation. \\n\\n\\n\\n 2\\n\\n \\n\\n\\n\\n\\n 1 agree. Accordingly, we REVERSE the district court’s denial of \\n 2 Orlando’s petition, and REMAND the cause to the district court with \\n 3 instructions to grant the petition for a writ of habeas corpus. \\n 4 \\n 5 Judge SHEA dissents in a separate opinion. \\n 6 \\n 7 \\n 8 JANE SIMKIN SMITH, Millbrook, NY, for \\n 9 Petitioner‐Appellant. \\n10 \\n11 SARAH S. RABINOWITZ, ASSISTANT \\n12 DISTRICT ATTORNEY (Tammy J. \\n13 Smiley, Assistant District Attorney, on \\n14 the brief), for Madeline Singas, Nassau \\n15 County District Attorney, Mineola, \\n16 New York, for Respondent‐Appellee. \\n17 DRONEY, Circuit Judge: \\n\\n18 On Friday night, December 3, 2004, at approximately 8:45 p.m., \\n\\n19 in response to a 911 call, police officers from the Long Beach, New \\n\\n20 York, police department found the body of Bobby Calabrese. 3 \\n\\n21 Calabrese was lying face down next to his Infiniti automobile, which \\n\\n22 was still running. He had been shot in the back of his head at close \\n\\n\\n\\n\\n 3 Long Beach is in Nassau County, New York, on Long Island. \\n\\n\\n\\n 3\\n\\n \\n\\n\\n\\n\\n 1 range three times with a .44 caliber revolver. Calabrese had been a \\n\\n 2 “runner” for an illegal sports betting organization. \\n\\n 3 The following Thursday, Nassau County police detectives \\n\\n 4 interviewed Mark Orlando and Herva Jeannot, who were together the \\n\\n 5 night of Calabrese’s homicide. The detectives believed that Orlando \\n\\n 6 and Jeannot had been with Calabrese that night. Orlando and Jeannot \\n\\n 7 were questioned in separate rooms at the police station. Jeannot \\n\\n 8 confessed to shooting Calabrese, stating that Orlando hired Jeannot \\n\\n 9 to murder Calabrese to avoid paying a gambling debt to Calabrese. \\n\\n10 During his questioning, Orlando gave two different statements to the \\n\\n11 police but denied being involved in the murder. \\n\\n12 Orlando and Jeannot were charged with murder for their roles \\n\\n13 in Calabrese’s death and, in August 2005, a jury in the New York \\n\\n14 Supreme Court for Nassau County convicted Mark Orlando of \\n\\n15 murder in the second degree. The trial court had severed Orlando \\n\\n16 and Jeannot’s trials to avoid a Sixth Amendment Confrontation \\n\\n\\n\\n\\n 4\\n\\n \\n\\n\\n\\n\\n 1 Clause violation that could have arisen from Orlando’s jury hearing \\n\\n 2 Jeannot’s confession if Jeannot did not testify and thus could not be \\n\\n 3 cross‐examined about it.4 Severing the trials, however, did not avoid \\n\\n 4 violating Orlando’s right to confront the witnesses against him, as the \\n\\n 5 trial court allowed the jury to learn of Jeannot’s confession \\n\\n 6 implicating Orlando at Orlando’s trial and Jeannot did not testify at \\n\\n 7 Orlando’s trial. \\n\\n 8 ORLANDO’S TRIAL \\n\\n 9 I. Evidence Before the Jury of Jeannot’s Statement \\n\\n10 The state’s theory at trial was that Orlando paid Jeannot to \\n\\n11 murder Calabrese to extinguish a $17,000 gambling debt Orlando \\n\\n12 owed to Calabrese and that Orlando assisted Jeannot in the murder. \\n\\n13 The prosecution argued that Orlando lured Calabrese to the remote \\n\\n\\n\\n\\n 4 Although the record on appeal does not reflect the trial court’s decision to sever \\n the trials, both Orlando and the state describe the trial court as having \\n (appropriately) severed Orlando and Jeannot’s trials “pursuant to” Bruton v. \\n United States, 391 U.S. 123, 124 (1968). Pet. Br. at 2; Respondent’s Br. at 39. \\n\\n\\n\\n 5\\n\\n \\n\\n\\n\\n\\n 1 location near Long Beach5 on the pretext of meeting to pay the $17,000 \\n\\n 2 debt, but that Orlando had previously agreed to pay Jeannot to shoot \\n\\n 3 Calabrese when Orlando met up with Calabrese. Orlando did not \\n\\n 4 dispute at trial that he was present for the murder, but contended that \\n\\n 5 he had intended merely to pay Calabrese; he did not expect Jeannot \\n\\n 6 (who was a friend of Orlando’s and a passenger in the car Orlando \\n\\n 7 drove that night) to shoot Calabrese and then take the gambling \\n\\n 8 money for himself. \\n\\n 9 During his police interrogation, Orlando gave two statements \\n\\n10 to Nassau County Police Detectives. Detectives McHugh and \\n\\n11 McGinn jointly interviewed Orlando when he gave his first statement, \\n\\n12 and Detective McHugh testified to this statement at Orlando’s trial. \\n\\n13 According to McHugh, Orlando first stated that he and Jeannot were \\n\\n14 good friends and coworkers at Professional Credit Services, a Long \\n\\n\\n\\n 5\\n Although officers from the Long Beach police department responded to the \\n report of the homicide, the homicide occurred in Island Park, which is a town \\n adjacent to Long Beach. \\n\\n\\n\\n 6\\n\\n \\n\\n\\n\\n\\n 1 Island debt collection agency. Orlando regularly gambled on sports. \\n\\n 2 About one month before the murder, another coworker introduced \\n\\n 3 Orlando to Calabrese. Orlando began to place bets through Calabrese \\n\\n 4 and soon won $28,465. \\n\\n 5 Orlando’s winning streak with Calabrese ended, and Orlando \\n\\n 6 lost $17,800 over the course of two weeks. At that point, Orlando \\n\\n 7 stopped betting with Calabrese. But Orlando still owed Calabrese \\n\\n 8 $17,000, and he arranged to pay Calabrese on December 3. \\n\\n 9 In that first statement to the Nassau County detectives, Orlando \\n\\n10 indicated that he and Jeannot went together in Orlando’s wife’s car to \\n\\n11 pay Calabrese, did so, and otherwise had an uneventful evening. \\n\\n12 After Orlando paid Calabrese the $17,000, he and Jeannot made \\n\\n13 several stops: at a Suzuki car dealership to pick up a check, at an ATM, \\n\\n14 and at Orlando’s friend’s house to look at some new construction. \\n\\n15 Orlando then dropped off Jeannot at Jeannot’s home, around 10:30 \\n\\n16 p.m. \\n\\n\\n\\n\\n 7\\n\\n \\n\\n\\n\\n\\n 1 After Detective McHugh finished testifying, Detective McGinn \\n\\n 2 took the stand and confirmed much of the substance of Orlando’s first \\n\\n 3 statement. According to McGinn, after Orlando signed a written \\n\\n 4 statement summarizing that version of the night’s events, Detectives \\n\\n 5 McGinn and McHugh left the interview room. McHugh went to \\n\\n 6 speak with Jeannot. Approximately three hours after leaving \\n\\n 7 Orlando’s interview room, McGinn returned to speak further with \\n\\n 8 Orlando. \\n\\n 9 Before Detective McGinn had begun testifying at Orlando’s \\n\\n10 trial (and out of the presence of the jury), counsel for Orlando had \\n\\n11 objected, on hearsay and Confrontation Clause grounds, to the \\n\\n12 admission of McGinn’s anticipated testimony recounting Jeannot’s \\n\\n13 statement as to Orlando’s involvement in the murder. The trial court \\n\\n14 denied the objection, ruling that “this information that the People are \\n\\n15 intending to offer in their direct case is not being offered for the truth \\n\\n16 of the contents of the statement but rather to give a clear picture to the \\n\\n\\n\\n\\n 8\\n\\n \\n\\n\\n\\n\\n 1 jury [of] what was going on during the interrogation of [Orlando].” \\n\\n 2 T. 166–67. \\n\\n 3 After Orlando’s objection was denied, the prosecution asked \\n\\n 4 Detective McGinn about “the circumstances under which [McGinn] \\n\\n 5 resumed speaking with” Orlando. T. 620.6 McGinn testified that he \\n\\n 6 had learned from Detective McHugh that Jeannot was making \\n\\n 7 inculpatory statements about the murder. “I knew Detective \\n\\n 8 McHugh was in talking to Mr. Herva Jeannot,” McGinn testified. Id. \\n\\n 9 “I believe,” he told the jury, “that Herva Jeannot was relaying some \\n\\n10 of the events that really took place that night [of the murder].” Id. \\n\\n11 McGinn then testified that he re‐entered Orlando’s interview \\n\\n12 room. Id. “I went back in and I told Mr. Orlando that Detective \\n\\n13 McHugh was over there talking to Herva [Jeannot] and he was \\n\\n14 probably giving us . . . other facts that happened that night, the truth \\n\\n\\n\\n\\n 6 Citations to the trial transcript are abbreviated “T. __” throughout this opinion. \\n\\n\\n\\n 9\\n\\n \\n\\n\\n\\n\\n 1 as to what happened that night.” Id. “Now, would be the time . . . to \\n\\n 2 tell us what was going on.” Id. \\n\\n 3 According to McGinn’s testimony, Orlando responded, “[y]ou \\n\\n 4 don’t understand,” and McGinn left the interview room. T. 620. \\n\\n 5 McGinn testified that he returned a few minutes later. According to \\n\\n 6 McGinn, “[a]gain, I explained to Mr. Orlando that Herva Jeannot was, \\n\\n 7 in fact, giving up . . . what we felt were truer versions of the events of \\n\\n 8 Bobby Calabrese’s murder. That we had a videotape of the spot the \\n\\n 9 meeting took place. That the meeting did not take place where \\n\\n10 [Orlando] originally told us it had taken place. I told [Orlando] that \\n\\n11 Herva Jeannot had given up where the gun was and that the \\n\\n12 defendant should . . .[,] if he wants his version of the story told[,] . . . \\n\\n13 tell us the truth at this point.” T. 621. \\n\\n14 Orlando initially responded, again, “you don’t understand,” \\n\\n15 but eventually stated, without elaboration, that he was afraid (of \\n\\n16 Jeannot) for his family. T. 621–23. McGinn testified that he again left \\n\\n\\n\\n\\n 10\\n\\n \\n\\n\\n\\n\\n 1 the interview room and that he came back around an hour later. He \\n\\n 2 then testified, over the renewed objection of Orlando’s attorney, to the \\n\\n 3 following: “I told [Orlando] . . . that Herva Jeannot was, in fact, talking \\n\\n 4 to the other detectives. [Jeannot] had given a statement and that he \\n\\n 5 had implicated himself in the murder. [Jeannot] said that he was the \\n\\n 6 murderer, but that Mark Orlando had paid him to do it.” T. 623–24. \\n\\n 7 At this point, the trial court gave the jury a limiting instruction. \\n\\n 8 The trial court stated, “Ladies and gentlemen, you have been \\n\\n 9 permitted to hear testimony about remarks made to the defendant by \\n\\n10 Detective McGinn about statements allegedly made by Herva \\n\\n11 Jeannot. You’re to consider this testimony only when considering the \\n\\n12 circumstances under which the defendant himself may have made \\n\\n13 statements and for no other purposes.” T. 624. \\n\\n14 The trial court then instructed the jury “to completely disregard \\n\\n15 any statement allegedly made by Herva Jeannot when considering \\n\\n16 evidence against the defendant. . . . You are not to concern yourself \\n\\n\\n\\n\\n 11\\n\\n \\n\\n\\n\\n\\n 1 with whether Herva Jeannot did or did not make any statements to \\n\\n 2 the police, if he did, what those statement[s] may have been or \\n\\n 3 whether or not they were true.”7 Id. \\n\\n 4 McGinn then resumed testifying. He testified that, after \\n\\n 5 learning of Jeannot’s statement implicating Orlando in the murder, \\n\\n 6 Orlando changed his account of the evening’s events. Orlando stated \\n\\n 7 that when he and Jeannot met Calabrese that night, Orlando paid \\n\\n 8 Calabrese and then Jeannot unexpectedly shot Calabrese, taking the \\n\\n 9 cash.8 T. 676–82. According to Orlando, he and Jeannot then drove \\n\\n10 away, and Jeannot threatened to harm Orlando’s (pregnant) wife if \\n\\n\\n\\n\\n 7\\n During its final charge to the jury, the trial court gave substantially the same \\n limiting instruction as to McGinn’s testimony regarding Jeannot’s statement as it \\n had given earlier in the trial. \\n\\n 8 Orlando first relayed this second version of events to McGinn. Then, McGinn left \\n the room, and Nassau Country Detective Cerighino, who had not been present for \\n the questioning of Orlando, came into the room. Cerighino reduced Orlando’s \\n second account to writing. Cerighino wrote the statement based upon what \\n Orlando told him, and Orlando signed it. The written statement is substantially \\n similar to McGinn’s account at trial of the second version of events that Orlando \\n gave to McGinn. \\n\\n\\n\\n 12\\n\\n \\n\\n\\n\\n\\n 1 Orlando were to tell anyone about the homicide. T. 682. Jeannot told \\n\\n 2 Orlando that Calabrese was not the first person Jeannot had killed \\n\\n 3 and that Calabrese would not be the last. Id. As a result, according to \\n\\n 4 Orlando, he then made the stops at the car dealership and elsewhere \\n\\n 5 because he wanted people and cameras to observe that Jeannot was \\n\\n 6 with him. In addition, at some point, Jeannot told Orlando to stop on \\n\\n 7 a bridge, and Jeannot then threw the gun he used to kill Calabrese \\n\\n 8 into the water. \\n\\n 9 II. The Prosecution’s Summation \\n\\n10 The prosecution argued in its summation to the jury that \\n\\n11 Orlando had paid Jeannot to murder Calabrese. The prosecution also \\n\\n12 specifically called to the jury’s attention that “Detective McGinn \\n\\n13 leaves [Orlando’s interrogation room], comes back a little later, . . . \\n\\n14 [and] Detective McGinn finally says, look, [Jeannot’s] giving it up. \\n\\n15 [Jeannot’s] telling us everything. . . . He’s telling us he did the \\n\\n16 shooting and you paid him.” T. 894–95. \\n\\n\\n\\n\\n 13\\n\\n \\n\\n\\n\\n\\n 1 Apart from Jeannot’s statement, there was little evidence to \\n\\n 2 support the state’s theory. The prosecution showed that, after the \\n\\n 3 murder, investigators found in Jeannot’s home five one‐hundred \\n\\n 4 dollar bills and found in Orlando’s home ten one‐hundred dollar bills, \\n\\n 5 all of which had a large‐portrait image of Benjamin Franklin. The \\n\\n 6 prosecution argued, “How do you know [Orlando] paid [Jeannot?] \\n\\n 7 Why else would [Jeannot] do it, if not for $500, those five Ben \\n\\n 8 Franklins hundred dollar bills . . . a week after the execution murder. \\n\\n 9 Just so happens the defendant has ten of his own [$100 bills] back in \\n\\n10 [his home]. Of course [Orlando] paid [Jeannot]. [Jeannot’s] not doing \\n\\n11 it as a favor.” T. 876. \\n\\n12 The prosecution again returned to its “murder‐for‐hire” theory \\n\\n13 later in its closing argument, stating that “[Orlando] wasn’t upset by \\n\\n14 watching Bobby die. That was what was supposed to happen. That \\n\\n15 is what he paid [Jeannot] to do, to do his dirty work for him. Couldn’t \\n\\n16 do it himself.” T. 885. The prosecution suggested that Orlando paid \\n\\n\\n\\n\\n 14\\n\\n \\n\\n\\n\\n\\n 1 Jeannot when the pair briefly stopped at Orlando’s house after the \\n\\n 2 murder. T. 890. \\n\\n 3 III. Verdict and Sentence \\n 4 \\n 5 The jury found Orlando guilty of murder in the second degree. \\n\\n 6 Orlando was sentenced to an indeterminate term of 25 years to life in \\n\\n 7 prison on August 18, 2005. He is currently serving his sentence. \\n\\n 8 Jeannot was also convicted of the murder in a separate trial. \\n\\n 9 STATE COURT APPELLATE PROCEEDINGS \\n\\n10 Orlando appealed his conviction to the New York Supreme \\n\\n11 Court, Appellate Division. People v. Orlando, 61 A.D.3d 1001 (N.Y. \\n\\n12 App. Div. 2d Dep’t 2009). Orlando contended that Detective \\n\\n13 McGinn’s testimony as to Jeannot’s statement was inadmissible \\n\\n14 hearsay and also violated Orlando’s right to confront witnesses \\n\\n15 through cross examination, as guaranteed by the Sixth Amendment \\n\\n16 of the United States Constitution and incorporated against the states \\n\\n17 by the Fourteenth Amendment. Appellant’s Br. at 70–77, People v. \\n\\n\\n\\n\\n 15\\n\\n \\n\\n\\n\\n\\n 1 Orlando, No. 2005‐08854 (N.Y. App. Div. 2d Dep’t Mar. 23, 2008); \\n\\n 2 Orlando, 61 A.D.3d at 1001–03. \\n\\n 3 The Appellate Division rejected Orlando’s argument in a single \\n\\n 4 sentence, stating: “The [trial] court properly instructed the jury that \\n\\n 5 the testimony was admitted for the limited purpose of explaining the \\n\\n 6 detectiveʹs actions and their effect on the defendant, and not for the \\n\\n 7 truth of the codefendantʹs statement. ” Id. (quoting People v. Ewell, 12 \\n\\n 8 A.D.3d 616, 617 (N.Y. App. Div. 2d Dep’t 2004)) (internal quotation \\n\\n 9 marks omitted).9 The Appellate Division also cited Tennessee v. Street, \\n\\n10 471 U.S. 409 (1985), for its conclusion that the trial court did not err in \\n\\n11 admitting Jeannot’s statement through Detective McGinn. Id. \\n\\n\\n\\n\\n 9 Although the Appellate Division described Jeannot as a “codefendant,” as is \\n mentioned in the above text, he was tried and convicted at a separate trial after the \\n Bruton ruling severing the trials. \\n\\n\\n\\n 16\\n\\n \\n\\n\\n\\n\\n 1 The New York Court of Appeals subsequently denied Orlando \\n\\n 2 leave to appeal, thereby rendering the Appellate Division’s decision \\n\\n 3 final. People v. Orlando, 981 N.E.2d 291, 291 (N.Y. 2012).10 \\n\\n 4 SECTION 2254 PROCEEDING IN THE DISTRICT COURT \\n 5 \\n 6 Orlando, proceeding pro se, filed a petition for a writ of habeas \\n\\n 7 corpus pursuant to 28 U.S.C. § 2254 in the United States District Court \\n\\n 8 for the Eastern District of New York. As in his direct appeal, Orlando \\n\\n 9 argued that McGinn’s testimony regarding Jeannot’s statement was \\n\\n10 inadmissible hearsay and violated his Confrontation Clause right. \\n\\n11 The district court denied the writ.11 \\n\\n12 The district court identified the following testimony by McGinn \\n\\n13 as at issue in the Confrontation Clause analysis: \\n\\n\\n\\n Following his unsuccessful state appeals, Orlando filed two unsuccessful coram \\n 10\\n\\n nobis petitions in state court alleging ineffective assistance of appellate counsel. See \\n People v. Orlando, 85 A.D.3d 823 (N.Y. App. Div. 2d Dep’t 2011); People v. Orlando, \\n 98 A.D.3d 691 (N.Y. App. Div. 2d Dep’t 2012). There is no dispute that Orlando \\n has properly exhausted his Confrontation Clause claim for federal habeas review. \\n\\n 11 Orlando pursues only his Confrontation Clause challenge on appeal. See \\n generally Pet. Br. \\n\\n\\n\\n 17\\n\\n \\n\\n\\n\\n\\n 1 I left the [interrogation] room at about 6:50 [AM]. I went \\n 2 back into the room at about ten minutes to eight. About 7:50 \\n 3 in the morning. And I told [Orlando] at this point that \\n 4 Herva Jeannot was, in fact, talking to the other detectives. \\n 5 He had given a statement and he had implicated himself in \\n 6 the murder. He said that he was the murderer, but that \\n 7 Mark Orlando had paid him to do it. \\n 8 \\n 9 Orlando v. Nassau Cty. Dist. Atty’s Office, 246 F. Supp. 3d 569, 572–73 \\n\\n10 (E.D.N.Y. 2017).12 \\n\\n11 Relying principally on Tennessee v. Street, 471 U.S. 409 (1985), \\n\\n12 and United States v. Logan, 419 F.3d 172 (2d Cir. 2005), the district court \\n\\n13 rejected Orlando’s Confrontation Clause argument. Orlando, 246 F. \\n\\n14 Supp. 3d at 571–76. The district court reasoned that Jeannot’s \\n\\n15 statement was not offered against Orlando for its truth but only \\n\\n16 “provided context for explaining why Orlando altered his [original] \\n\\n\\n\\n\\n 12 The district court did not recount or discuss the portion of McGinn’s testimony \\n to the jury that vouched for the truth of Jeannot’s statement. T. 620 (“Herva \\n Jeannot was relaying some of the events that really took place that night . . . the \\n truth as to what happened that night.”); T. 621 (“I explained to Mr. Orlando that \\n Herva Jeannot was, in fact, giving up what we felt were truer versions of the events \\n of Bobby Calabrese’s murder.”) (emphasis added). That aspect of McGinn’s \\n testimony is discussed later in this opinion. \\n\\n\\n\\n 18\\n\\n \\n\\n\\n\\n\\n 1 exculpatory story” to admit that he had in fact been present for the \\n\\n 2 murder but that Jeannot had unexpectedly committed it. Id. at 574. \\n\\n 3 The district court also held that any error was harmless. Id. at 575–76. \\n\\n 4 The district court issued a certificate of appealability as to \\n\\n 5 Orlando’s Confrontation Clause argument. Id. at 578. Orlando then \\n\\n 6 timely filed a notice of appeal. \\n\\n 7 DISCUSSION \\n\\n 8 Orlando argues that: (1) without his ability to cross‐examine \\n\\n 9 Jeannot, McGinn’s testimony recounting Jeannot’s statement violated \\n\\n10 Orlando’s Confrontation Clause right; (2) the Appellate Division’s \\n\\n11 ruling to the contrary was “objectively unreasonable;” and (3) the \\n\\n12 erroneous admission of the testimony was not harmless. We agree. \\n\\n13 Accordingly, we reverse the district court’s denial of Orlando’s \\n\\n14 petition. \\n\\n15 \\n\\n16 \\n\\n\\n\\n\\n 19\\n\\n \\n\\n\\n\\n\\n 1 I. Standard of Review and Section 2254 Framework \\n 2 \\n 3 Under 28 U.S.C. § 2254, “a person in custody pursuant to the \\n\\n 4 judgment of a State court” may petition a district court for a writ of \\n\\n 5 habeas corpus “on the ground that he is in custody in violation of the \\n\\n 6 Constitution or laws or treaties of the United States.” Id. § 2254(a). \\n\\n 7 We review de novo a district court’s denial of a petition for a writ of \\n\\n 8 habeas corpus pursuant to 28 U.S.C. § 2254. Lynch v. Dolce, 789 F.3d \\n\\n 9 303, 311–12 (2d Cir. 2015). \\n\\n10 A petition for a writ of habeas corpus “shall not be granted with \\n\\n11 respect to any claim that was adjudicated on the merits in State court \\n\\n12 proceedings unless the adjudication of the claim . . . resulted in a \\n\\n13 decision that was contrary to, or involved an unreasonable \\n\\n14 application of, clearly established Federal law, as determined by the \\n\\n15 Supreme Court of the United States.” § 2254(d). “A state court \\n\\n16 decision is an ‘unreasonable application’ of clearly established federal \\n\\n17 law ‘if the state court identifies the correct governing legal principle \\n\\n\\n\\n\\n 20\\n\\n \\n\\n\\n\\n\\n 1 from [the Supreme] Courtʹs decisions but unreasonably applies that \\n\\n 2 principle to the facts of the prisoner’s case.’” Howard v. Walker, 406 \\n\\n 3 F.3d 114, 122 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, \\n\\n 4 413 (2000)). However, that bar is not reached where “fairminded \\n\\n 5 jurists could disagree on the correctness of the state court’s decision.” \\n\\n 6 Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks \\n\\n 7 and citation omitted). \\n\\n 8 II. The Confrontation Clause Violation \\n\\n 9 The Sixth Amendment’s Confrontation Clause provides that \\n\\n10 “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to \\n\\n11 be confronted with the witnesses against him.” U.S. Const. amend. \\n\\n12 VI. “‘The crux of this right is that the government cannot introduce \\n\\n13 at trial” an out‐of‐court witness’s “statements containing accusations \\n\\n14 against the defendant unless the accuser takes the stand against the \\n\\n15 defendant and is available for cross examination.’” United States v. \\n\\n16 Jass, 569 F.3d 47, 55 (2d Cir. 2009) (quoting Ryan v. Miller, 303 F.3d 231, \\n\\n\\n\\n\\n 21\\n\\n \\n\\n\\n\\n\\n 1 247 (2d Cir. 2002)) (internal quotations omitted). To implicate the \\n\\n 2 Confrontation Clause, the statement must be used to prove the truth \\n\\n 3 of the matter asserted, and the statement must be “testimonial.” Davis \\n\\n 4 v. Washington, 547 U.S. 813, 821–22 (2006) (citing Crawford v. \\n\\n 5 Washington, 541 U.S. 36, 51 (2004)). In other words, it must be \\n\\n 6 “testimonial hearsay.” Id. at 823. \\n\\n 7 Out‐of‐court statements may have a proper purpose other than \\n\\n 8 being considered for their truth. The Supreme Court and this Circuit \\n\\n 9 have acknowledged that a trial court’s instruction to a jury to consider \\n\\n10 only for a limited, nonhearsay purpose the non‐testifying witness’s \\n\\n11 out‐of‐court statement “is generally sufficient to eliminate . . . \\n\\n12 Confrontation Clause concern[s].” Jass, 569 F.3d at 55 (citing \\n\\n13 Richardson v. Marsh, 481 U.S. 200, 206 (1987)). That is because “[t]he \\n\\n14 law ‘almost invariabl[y] assum[es]’ that jurors follow such limiting \\n\\n15 instructions.” Id. (quoting Richardson, 481 U.S. at 206). \\n\\n\\n\\n\\n 22\\n\\n \\n\\n\\n\\n\\n 1 “Nevertheless, in Bruton v. United States, . . . the Supreme Court \\n\\n 2 identified an exception to th[e] assumption” that jurors follow \\n\\n 3 limiting instructions. Id. In Bruton v. United States, 391 U.S. 123, 124 \\n\\n 4 (1968), the defendant Bruton and his codefendant were tried jointly \\n\\n 5 for armed postal robbery. A postal inspector testified that the \\n\\n 6 codefendant confessed to him that Bruton and the codefendant \\n\\n 7 committed the robbery together. Id. The codefendant did not take \\n\\n 8 the stand, so he could not be cross‐examined. Id. at 128. The district \\n\\n 9 court provided a limiting instruction to the jury that “although [the \\n\\n10 codefendant’s] confession was competent evidence against [the \\n\\n11 codefendant] it was inadmissible hearsay against [Bruton] and \\n\\n12 therefore had to be disregarded in determining [Bruton’s] guilt or \\n\\n13 innocence.” Id. at 125. \\n\\n14 The Supreme Court reversed Bruton’s conviction, holding that \\n\\n15 because his codefendant was not subject to cross examination and \\n\\n16 “because of the substantial risk that the jury, despite instructions to \\n\\n\\n\\n\\n 23\\n\\n \\n\\n\\n\\n\\n 1 the contrary, looked to the incriminating extrajudicial statements in \\n\\n 2 determining [Bruton’s] guilt,” admission of the codefendant’s \\n\\n 3 confession in front of Bruton’s jury violated Bruton’s “right of cross‐\\n\\n 4 examination secured by the Confrontation Clause of the Sixth \\n\\n 5 Amendment.” Id. at 126. \\n\\n 6 The Court further explained that “[n]ot only are [alleged \\n\\n 7 accomplices’] incriminations devastating to the defendant but their \\n\\n 8 credibility is inevitably suspect, a fact recognized when accomplices \\n\\n 9 do take the stand and the jury is instructed to weigh their testimony \\n\\n10 carefully given the recognized motivation to shift blame onto others. \\n\\n11 The unreliability of such evidence is intolerably compounded when \\n\\n12 the alleged accomplice . . . does not testify and cannot be tested by \\n\\n13 cross‐examination.” Id. at 136. \\n\\n14 As a result, when a non‐testifying witness’s confession \\n\\n15 “expressly” implicates the defendant, “the risk that the jury will not, \\n\\n16 or cannot, follow instructions [to limit its consideration of the \\n\\n\\n\\n\\n 24\\n\\n \\n\\n\\n\\n\\n 1 evidence for a proper purpose] is so great, and the consequences of \\n\\n 2 failure so vital to the defendant, that the practical and human \\n\\n 3 limitations of the jury system cannot be ignored.” Richardson, 481 U.S. \\n\\n 4 at 207–08 (quoting Bruton, 391 U.S. at 135–36). When a jury hears such \\n\\n 5 express incriminations, even if given a “clear” limiting instruction, \\n\\n 6 “the effect is the same as if there had been no instruction at all.” \\n\\n 7 Bruton, 391 U.S. at 137. \\n\\n 8 Although the non‐testifying witness in Bruton was a \\n\\n 9 codefendant in a joint trial, Bruton applies equally to the testimonial \\n\\n10 and incriminating statements of non‐testifying accomplices tried \\n\\n11 separately. See Crawford, 541 U.S. at 57, 69 (stating that testimonial \\n\\n12 statements admitted without the opportunity to cross‐examine the \\n\\n13 declarant violate the Confrontation Clause and referring to Bruton as \\n\\n14 barring “accomplice confessions where the defendant had no \\n\\n15 opportunity to cross‐examine”); Tennessee v Street, 471 U.S. 409, 411, \\n\\n16 414–15 (1985) (recognizing that if the jury had been asked to infer that \\n\\n\\n\\n\\n 25\\n\\n \\n\\n\\n\\n\\n 1 the confession of the non‐testifying accomplice—who was tried \\n\\n 2 separately—proved that the defendant participated in the murder, \\n\\n 3 “Confrontation Clause concerns would have been implicated”). \\n\\n 4 Here, the Appellate Division correctly acknowledged that, \\n\\n 5 absent cross‐examination of Jeannot, admission of his facially \\n\\n 6 incriminating statement risked violating the Confrontation Clause, as \\n\\n 7 was recognized in Bruton. 13 People v. Orlando, 61 A.D.3d at 1002. \\n\\n 8 However, the Appellate Division reasoned that the jury would use \\n\\n 9 this evidence only to “explain the detective’s actions and their effect” \\n\\n10 on Orlando—that effect presumably being the reason why Orlando \\n\\n11 changed his account of the events of the night of the murder. Id. \\n\\n\\n\\n\\n 13 Although the Appellate Division did not cite Bruton or articulate its holding, a \\n state reviewing court need not to do so in order for it to be considered to have \\n applied the constitutional principles set forth in Supreme Court precedent. See, \\n e.g., Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (“[A] state court need not even be \\n aware of our precedents, so long as neither the reasoning nor the result of the state‐\\n court decision contradicts them.”) (internal quotation marks and citation omitted). \\n The Appellate Division did cite Tennessee v. Street, 471 U.S. 409 (1985), which is \\n discussed later in this opinion. \\n\\n\\n\\n 26\\n\\n \\n\\n\\n\\n\\n 1 That conclusion by the Appellate Division was an unreasonable \\n\\n 2 application of Bruton. McGinn led the jury to believe that Jeannot had \\n\\n 3 actually made the statement McGinn recounted, and that statement \\n\\n 4 expressly inculpated Orlando as Jeannot’s accomplice in the murder. \\n\\n 5 Bruton plainly instructs that the jury could not be presumed to \\n\\n 6 disregard Jeannot’s statement for its truth, even with a limiting \\n\\n 7 instruction.14 \\n\\n 8 A. Jeannot Was an Out‐of‐Court Witness \\n\\n 9 The state argues in its brief that “[n]either McGinn nor \\n\\n10 McHugh ever testified that Jeannot actually made the statements at \\n\\n11 issue,” Respondent’s Br. at 29–30; in other words, that Jeannot was \\n\\n12 not an out‐of‐court “witness” within the meaning of the \\n\\n13 Confrontation Clause, see Davis, 547 U.S. at 821–22. And so, the state \\n\\n\\n\\n 14 In addition, there is no doubt that Jeannot’s statement was “testimonial.” See \\n Davis, 547 U.S. at 821–22 (holding that statements made “in the course of police \\n interrogation” are testimonial when made under “circumstances objectively \\n indicat[ing] . . . that the primary purpose of the interrogation [was] to establish or \\n prove past events potentially relevant to later criminal prosecution”). \\n\\n\\n\\n 27\\n\\n \\n\\n\\n\\n\\n 1 contends, the situation here was no different than a jury merely \\n\\n 2 hearing that an investigator had used deception to elicit a confession. \\n\\n 3 The state is incorrect; of course the prosecution led the jury to \\n\\n 4 believe that Jeannot had actually made the statement McGinn \\n\\n 5 recounted. McGinn testified that, “I knew Detective McHugh was in \\n\\n 6 talking to Mr. Herva Jeannot,” and that, “I believe that Herva Jeannot \\n\\n 7 was relaying some of the events that really took place that night.” T. \\n\\n 8 620. The prosecution never disavowed that Jeannot had made the \\n\\n 9 statement, and it even recounted the statement in its summation. And \\n\\n10 that very statement was the reason for the Bruton severance in the first \\n\\n11 place. Thus, Jeannot was indeed an out‐of‐court “witness” subject to \\n\\n12 the cross‐examination requirements of the Confrontation Clause.15 \\n\\n\\n\\n\\n 15\\n A witness need only recount the critical substance of the out‐of‐court statement \\n to implicate the Confrontation Clause. See Ryan v. Miller, 303 F.3d 231, 248–49 (2d \\n Cir. 2002) (granting section 2254 petition due to non‐harmless Confrontation \\n Clause violation, stating that “[i]f the substance of the prohibited testimony is \\n evident even though it was not introduced in the prohibited form, the testimony \\n is still inadmissible,” and collecting cases); Ocampo v. Vail, 649 F.3d 1098, 1108–11 \\n (9th Cir. 2011) (“Supreme Court law . . . clearly establishe[s] that testimony from \\n\\n 28\\n\\n \\n\\n\\n\\n\\n 1 B. The Admission of Jeannot’s Statement Was Clearly Barred \\n 2 by Bruton \\n 3 \\n 4 With the jury having heard this expressly incriminating \\n\\n 5 statement from Jeannot, the only reasonable conclusion was that the \\n\\n 6 Confrontation Clause was violated under Bruton. The risk that the \\n\\n 7 jury would consider Jeannot’s statement for its truth was simply too \\n\\n 8 great to allow the jury to hear it, absent cross‐examination of Jeannot. \\n\\n 9 Indeed, “the overwhelming probability” of jurors’ inability to “thrust \\n\\n10 out of mind” express “testimony that ‘the defendant helped me \\n\\n11 commit the crime’ . . . is the foundation of Bruton.” Richardson, 481 U.S. \\n\\n12 at 208 (emphasis added); see also Bruton, 391 U.S. at 129 (“The \\n\\n13 Government should not have the windfall of having the jury be \\n\\n14 influenced by evidence against a defendant which, as a matter of law, \\n\\n15 they should not consider but which they cannot put out of their \\n\\n16 minds.”) (internal quotation marks and citation omitted) (overruling \\n\\n\\n\\n which one could determine the critical content of the out‐of‐court statement [is] \\n sufficient to trigger Confrontation Clause concerns.”).\\n\\n\\n\\n 29\\n\\n \\n\\n\\n\\n\\n 1 Delli Paoli v. United States, 352 U.S. 232 (1957), and adopting the \\n\\n 2 reasoning of the dissent in that decision). \\n\\n 3 The Confrontation Clause violation here is even clearer than in \\n\\n 4 Bruton. Detective McGinn did not merely recount Jeannot’s \\n\\n 5 confession implicating Orlando; he also vouched for its veracity. \\n\\n 6 McGinn testified, “I believe that Herva Jeannot was relaying some of \\n\\n 7 the events that really took place that night . . . the truth as to what \\n\\n 8 happened that night,” T. 620 (emphasis added), and “I explained to \\n\\n 9 Mr. Orlando that Herva Jeannot was, in fact, giving up . . . what we felt \\n\\n10 were truer versions of the events of Bobby Calabrese’s murder.”16 T. \\n\\n11 621 (emphasis added). That testimony by McGinn made it even less \\n\\n12 likely than in Bruton that the jury would have obeyed the trial court’s \\n\\n13 limiting instruction. See, e.g., United States v. Forrester, 60 F.3d 52, 63–\\n\\n\\n\\n\\n We acknowledge that the latter statement could possibly be read as McGinn \\n 16\\n\\n explaining only to Orlando rather than to the jury that McGinn and McHugh \\n believed Jeannot was telling the truth about Orlando’s involvement the murder. \\n However, there was no such ambiguity with regard to McGinn’s first statement \\n that he believed Jeannot was relaying what “really took place that night.” T. 620. \\n\\n\\n\\n 30\\n\\n \\n\\n\\n\\n\\n 1 64 (2d Cir. 1995) (discussing the prejudicial impact of government \\n\\n 2 agents vouching for witnesses).\\n\\n 3 Likewise, the prosecution’s summation further undermined \\n\\n 4 any possible effectiveness of the limiting instruction when it \\n\\n 5 reminded the jury of its murder‐for‐hire theory three times and \\n\\n 6 specifically called to its attention McGinn’s testimony that he told \\n\\n 7 Orlando, “[Jeannot’s] telling us everything . . . . He’s telling us he did \\n\\n 8 the shooting and you paid him.” T. 895. But, as discussed below with \\n\\n 9 regard to the harmless error analysis, the evidence—other than \\n\\n10 Jeannot’s statement—that Orlando had hired Jeannot to murder \\n\\n11 Calabrese, was weak. Thus, the likelihood that the jury credited \\n\\n12 Jeannot’s statement was higher even than in Bruton, where the \\n\\n13 Supreme Court did not suggest that the prosecution had undermined \\n\\n14 the limiting instruction.17 \\n\\n\\n\\n 17 We note also that the limiting instruction was decidedly unclear. The trial court \\n instructed the jury to consider the testimony at issue when considering “the \\n circumstances under which Orlando made any statements.” T. 624. McGinn, \\n however, had just told the jury that the “circumstances” which led him to resume \\n\\n 31\\n\\n \\n\\n\\n\\n\\n 1 In opposing Orlando’s petition, the state relies primarily on the \\n\\n 2 Supreme Court’s decision in Tennessee v. Street, 471 U.S. 409 (1985). In \\n\\n 3 Street, the defendant, Street, was tried for murder separately from his \\n\\n 4 alleged accomplice, Peele. Id. at 411. Street had confessed during an \\n\\n 5 interview with police to participating in a burglary and the murder \\n\\n 6 with Peele. Id. \\n\\n 7 In its case‐in‐chief, the state introduced Street’s confession. Id. \\n\\n 8 Street then took the stand during his defense case, and he testified \\n\\n 9 that the police had coerced his confession and that he had not been \\n\\n10 involved in the murder. Id. Street claimed that the police had shown \\n\\n11 him Peele’s confession during his interview and forced Street to give \\n\\n12 the same account as Peele. Id. \\n\\n13 The trial court then permitted the state to introduce in its \\n\\n14 rebuttal case Peele’s confession through the testimony of Sheriff \\n\\n\\n\\n interrogating Orlando were that “Herva Jeannot was relaying some of the events \\n that really took place that night.” T. 620. By contrast, even in Bruton, the jury \\n instructions were “concededly clear.” Bruton, 391 U.S. at 137. \\n\\n\\n\\n 32\\n\\n \\n\\n\\n\\n\\n 1 Papantoniou, the police officer who had taken it. Id. at 411–12. The \\n\\n 2 state showed the obvious differences between the two statements to \\n\\n 3 discredit Street’s testimony that his confession had been coerced and \\n\\n 4 that the statements’ claimed similarities demonstrated the coercion. \\n\\n 5 Id. at 412. Both at the time the police officer recounted Peele’s \\n\\n 6 statement and in its jury instructions, the trial court instructed the jury \\n\\n 7 that Peele’s statement was admitted not for its truth, but rather only \\n\\n 8 to rebut Street’s contention that his confession was coerced. Id. Peele \\n\\n 9 did not testify at Street’s trial and, thus, could not be cross‐examined \\n\\n10 about his statement. \\n\\n11 The Supreme Court affirmed Street’s murder conviction. Id. at \\n\\n12 417. According to the Court, “[t]he nonhearsay aspect of Peeleʹs \\n\\n13 confession—not to prove what happened at the murder scene but to \\n\\n14 prove what happened when respondent confessed—raises no \\n\\n15 Confrontation Clause concerns. The Clauseʹs fundamental role in \\n\\n16 protecting the right of cross‐examination . . . was [thus] satisfied by \\n\\n\\n\\n\\n 33\\n\\n \\n\\n\\n\\n\\n 1 Sheriff Papantoniouʹs presence on the stand.” Id. at 414. After all, the \\n\\n 2 Supreme Court stated, “[i]f [Street’s] counsel doubted that [the \\n\\n 3 accomplice’s] confession was accurately recounted, he was free to \\n\\n 4 cross‐examine the Sheriff. By cross‐examination [Street’s] counsel \\n\\n 5 could also challenge Sheriff Papantoniou’s testimony that he did not \\n\\n 6 read from Peeleʹs statement and direct respondent to say the same \\n\\n 7 thing. In short, the State’s rebuttal witness against [Street] was not \\n\\n 8 Peele, but Sheriff Papantoniou.” Id. \\n\\n 9 The Court in Street went on to acknowledge that its conclusion \\n\\n10 depended on the “crucial assumption” that the jurors followed the \\n\\n11 trial court’s limiting instructions. Id. at 415. There, as in Bruton, \\n\\n12 Street’s accomplice had expressly implicated him in the crime. But \\n\\n13 unlike in Bruton, Street had placed the state in the position of not \\n\\n14 being able to effectively challenge Street’s testimony that his \\n\\n15 confession was coerced. And “the State’s most important piece of \\n\\n16 substantive evidence was [Street’s] confession.” Id. The only \\n\\n\\n\\n\\n 34\\n\\n \\n\\n\\n\\n\\n 1 available way to rebut Street’s contention of a coerced confession was \\n\\n 2 to compare Peele’s confession with Street’s; if they were different, that \\n\\n 3 would tend to show that Street’s coercion testimony was not credible. \\n\\n 4 See id. at 415–16. And so, if the trial court in Street had not allowed the \\n\\n 5 accomplice’s confession to be brought before the jury, that “would \\n\\n 6 have been at odds with the Confrontation Clause’s very mission—to \\n\\n 7 advance the accuracy of the truth‐determining process.” Id. at 415. \\n\\n 8 Thus, the Court in Street found, unlike in Bruton, that there were \\n\\n 9 “no alternatives [but allowing admission of the accomplice’s \\n\\n10 confession] that would have both assured the integrity of the trial’s \\n\\n11 truth‐seeking function and eliminated the risk of the jury’s improper \\n\\n12 use of evidence.” Id. \\n\\n13 Notably, in its conclusion, the Court in Street also took care to \\n\\n14 emphasize that the “prosecutor’s questions and closing argument” \\n\\n15 had done nothing to distract the jury from the accomplice confession’s \\n\\n16 “distinctive and limited purpose.” Id. at 417. It was only “in this \\n\\n\\n\\n\\n 35\\n\\n \\n\\n\\n\\n\\n 1 context” that the trial judge’s instructions were sufficient to prevent a \\n\\n 2 Confrontation Clause violation. Id. (emphasis added). \\n\\n 3 This case is very different from Street. The prosecution argued \\n\\n 4 that Jeannot’s statement merely showed “context” for why Orlando \\n\\n 5 changed his statement. But Jeannot’s statement went far beyond any \\n\\n 6 limited value in showing why Orlando changed his account of what \\n\\n 7 happened that night. The prosecution elicited testimony from \\n\\n 8 Detective McGinn that Jeannot had actually made the incriminating \\n\\n 9 statement, and McGinn vouched for Jeannot’s account. In its \\n\\n10 summation, the prosecution also repeated Jeannot’s statement, and \\n\\n11 pressed its murder‐for‐hire theory. \\n\\n12 Moreover, the prosecution’s need for the purported “context” \\n\\n13 was of little importance as compared to the need in Street. Orlando’s \\n\\n14 changing his account of the homicide was no different than many \\n\\n15 investigations when suspects make a series of statements; absent the \\n\\n16 substance of Jeannot’s statement, the jury still could have learned that \\n\\n\\n\\n\\n 36\\n\\n \\n\\n\\n\\n\\n 1 after several hours of interrogation, Orlando revised his story and \\n\\n 2 placed himself at the scene of the murder and admitted to lying about \\n\\n 3 his original account. That approach would have significantly \\n\\n 4 advanced the prosecution’s case without a critical narrative gap and, \\n\\n 5 accordingly, the “truth‐seeking function” of the trial would not have \\n\\n 6 been impeded in a way comparable to Street. See id. at 415–16. Nor \\n\\n 7 did Orlando take the stand at his trial, and so the credibility of his \\n\\n 8 own trial testimony was not an issue, unlike in Street where the state \\n\\n 9 otherwise would not have been able to challenge Street’s principal \\n\\n10 defense of coercion in giving his statement. \\n\\n11 To extend Street to the situation presented here would \\n\\n12 eviscerate the core protection of Bruton. To allow admission of \\n\\n13 Jeannot’s statement through McGinn would permit the admission of \\n\\n14 inculpatory statements of non‐testifying codefendants whenever the \\n\\n15 defendant changed his initial statement to investigators after \\n\\n16 investigators told the defendant of an accomplice’s incriminating \\n\\n\\n\\n\\n 37\\n\\n \\n\\n\\n\\n\\n1 confession. The prosecution would need only then argue to the trial \\n\\n2 court that the other confession was being shown to the jury just to \\n\\n3 show why there were changes to the original statement.18 19 \\n\\n4 * * * \\n\\n\\n\\n\\n 18 The state also contends that the admission of Jeannot’s statements established \\n “the voluntariness of [Orlando’s] statements.” Respondent’s Br. 30–31, 35. But, \\n unlike Street, Orlando did not contest their voluntariness at trial. And, there was \\n other evidence that Orlando’s statements were voluntary. The detectives testified \\n that Orlando was advised of his Miranda rights and agreed to speak with them, \\n and Orlando indicated that he understood his Miranda rights, was willing to give \\n a statement without speaking with a lawyer or having one present, and that he \\n was “mak[ing] the . . . statement[s] freely and voluntarily.” T. 546. \\n \\n 19 Other circuits have also recognized that Street does not permit the admission of \\n\\n an out‐of‐court accomplice statement merely because it may have some purpose \\n other than for its truth. See, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1172–73 (9th Cir. \\n 2001) (granting section 2254 petition due to Confrontation Clause violation and \\n other constitutional errors, and stating that “[e]ven if the statements [we]re \\n classified as non‐hearsay, they are sufficiently prejudicial that the jury would be \\n unable to consider them only for limited purposes and would consider them for \\n their truth in violation of the Confrontation Clause”) (abrogated on unrelated \\n grounds by Payton v. Woodford, 299 F.3d 815, 828–29 n.11 (9th Cir. 2002), which the \\n Supreme Court then vacated, 538 U.S. 975 (2003)); cf. United States v. Taylor, 569 \\n F.3d 742, 750 (7th Cir. 2009) (finding no Confrontation Clause violation because \\n the out‐of‐court statements were nonhearsay and there were no “complicating \\n circumstances, such as a prosecutor who exploits nonhearsay statements for their truth”) \\n (internal quotation marks and citation omitted) (emphasis added). \\n\\n\\n\\n 38\\n\\n \\n\\n\\n\\n\\n 1 We hold that the Appellate Division unreasonably applied \\n\\n 2 Bruton in concluding that Orlando’s Sixth Amendment right to cross‐\\n\\n 3 examine a witness against him was not violated when the jury heard \\n\\n 4 of Jeannot’s statement implicating Orlando in the murder. To the \\n\\n 5 extent that the Appellate Division applied Street, it also extended that \\n\\n 6 decision unreasonably.20 \\n\\n 7 III. The Error Was Not Harmless \\n\\n 8 As Orlando and the state agree, the improper admission of \\n\\n 9 evidence in violation of the Confrontation Clause is subject to review \\n\\n10 for harmless error. Hendrix v. Smith, 639 F.2d 113, 115 (2d Cir. 1981) \\n\\n11 (citing Chapman v. California, 386 U.S. 18 (1967); Schneble v. Florida, 405 \\n\\n12 U.S. 427 (1972)). When a state court makes a harmless error \\n\\n\\n\\n\\n 20 The state’s reliance on United States v. Logan, 419 F.3d 172 (2d Cir. 2005), is also \\n misplaced. In Logan, the coconspirators’ statements concerning an alibi were \\n admitted only to show the existence of a conspiracy. Id. at 176–78. Moreover, the \\n statements were not admitted for their truth but—to the contrary—were shown to \\n be untruthful. Id. Here, Jeannot’s statement—as recounted by Detective \\n McGinn—was consistent with the state’s theory and was specifically utilized by \\n the state to support that theory. \\n \\n\\n 39\\n\\n \\n\\n\\n\\n\\n 1 determination on direct appeal, we owe the “harmlessness \\n\\n 2 determination itself” deference under the Antiterrorism and Effective \\n\\n 3 Death Penalty Act of 1996 (“AEDPA”). Ayala, 135 S. Ct. at 2199. Here, \\n\\n 4 because the Appellate Division did not determine that the admission \\n\\n 5 of McGinn’s testimony as to Jeannot’s statements was harmless, we \\n\\n 6 owe no deference to the Appellate Division on that issue. E.g., Cotto \\n\\n 7 v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003) (“In this \\n\\n 8 case, harmless error was never reached in the state courts, and there \\n\\n 9 is therefore no state ruling which commands AEDPA deference.”). \\n\\n10 An error was harmless unless it resulted in “actual prejudice,” \\n\\n11 Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. \\n\\n12 Abrahamson, 507 U.S. 619, 637 (1993)), meaning that a court has “grave \\n\\n13 doubt about whether” the error “had ‘substantial and injurious effect \\n\\n14 or influence in determining the jury’s verdict.’” Id. at 2198 (quoting \\n\\n15 O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). This “Brecht standard” \\n\\n\\n\\n\\n 40\\n\\n \\n\\n\\n\\n\\n 1 requires “more than a ‘reasonable possibility’ that the error was \\n\\n 2 harmful.” Id. (quoting Brecht, 507 U.S. at 637). \\n\\n 3 We have little doubt that the improperly admitted testimony as \\n\\n 4 to Jeannot’s statement had such a powerful effect on the jury. The \\n\\n 5 prosecution’s theory was that Orlando was guilty of murder for \\n\\n 6 acting as Jeannot’s accomplice by paying Jeannot to shoot Calabrese \\n\\n 7 and helping Jeannot to do so. The trial judge instructed the jury that, \\n\\n 8 to convict Orlando, the prosecution had to prove that Orlando acted \\n\\n 9 in concert with Jeannot. The state argues that, even absent admission \\n\\n10 of Jeannot’s confession through McGinn’s testimony, the evidence of \\n\\n11 Orlando’s guilt was “nothing short of overwhelming.” Respondent’s \\n\\n12 Br. at 47. \\n\\n13 In support, the state contends that Orlando’s $17,000 gambling \\n\\n14 debt to Calabrese was compelling evidence of motive; that the \\n\\n15 hundred‐dollar bills found in the homes of both Orlando and Jeannot \\n\\n16 after the murder were evidence of the murder‐for‐hire transaction; \\n\\n\\n\\n\\n 41\\n\\n \\n\\n\\n\\n\\n 1 and that forensic testimony as to the location of bullet holes in \\n\\n 2 Calabrese’s sweatshirt showed that Orlando pulled the sweatshirt \\n\\n 3 over Calabrese’s head before Jeannot shot him. Finally, the state \\n\\n 4 emphasizes that the video evidence, as well as cell site evidence, \\n\\n 5 showed that Orlando was at the location where the homicide \\n\\n 6 occurred. We address these arguments in turn. \\n\\n 7 A. Evidence of Motive \\n\\n 8 Although it was undisputed that Orlando owed Calabrese \\n\\n 9 $17,000, the evidence showed that Orlando had won $27,000 in the \\n\\n10 month prior. Accordingly, he had net winnings of $10,000 over a six‐\\n\\n11 week period. Moreover, the evidence showed that Orlando had \\n\\n12 $2,700 in cash in his residence after the murder (and after he \\n\\n13 purportedly paid Jeannot to commit the murder). And so, the \\n\\n14 evidence that Orlando lacked the funds to pay Calabrese was slight.21 \\n\\n15 \\n\\n\\n\\n 21 The state also did not introduce evidence of Orlando’s bank records at trial. \\n\\n\\n\\n 42\\n\\n \\n\\n\\n\\n\\n 1 Moreover, it strains credulity that Orlando would have \\n\\n 2 believed that murdering a courier in an illegal gambling operation \\n\\n 3 would erase a gambling debt of $17,000 and prevent attempts by the \\n\\n 4 other members of the gambling operation to seek payment. The \\n\\n 5 prosecution argued that Orlando’s plan was to murder Calabrese and \\n\\n 6 then claim to Calabrese’s superiors in the illegal sports betting \\n\\n 7 organization that he had paid Calabrese (and that Calabrese must \\n\\n 8 have been robbed and murdered by someone else). But it certainly is \\n\\n 9 not obvious that Orlando would have thought such a plan would \\n\\n10 work. \\n\\n11 B. Evidence of a Murder‐for‐Hire Transaction \\n\\n12 Similarly, the discovery of a small number of one‐hundred‐\\n\\n13 dollar bills in the homes of both Orlando and Jeannot after the murder \\n\\n14 was not particularly probative of a murder‐for‐hire transaction. The \\n\\n15 state asserts that the hundred‐dollar bill design with “the large \\n\\n16 picture of Ben Franklin” was “then new” and, thus so rare as to mean \\n\\n\\n\\n\\n 43\\n\\n \\n\\n\\n\\n\\n 1 Jeannot’s bills likely came from Orlando. Respondent’s Br. at 48. But \\n\\n 2 that design began circulating in 1996,22 eight years before the murder \\n\\n 3 of Calabrese. A jury thus would not have found it remarkable that \\n\\n 4 the bills in both homes had the same design. Nor did the U.S. \\n\\n 5 currency found in Jeannot’s home have any fingerprints, sequential \\n\\n 6 serial numbers, or DNA that might have linked them to a transaction \\n\\n 7 between Orlando and Jeannot. \\n\\n 8 In addition, only $500 in bills was found in Jeannot’s home. It \\n\\n 9 is entirely unclear why Jeannot would accept only $500 to commit a \\n\\n10 murder, particularly given that Jeannot undisputedly knew Orlando \\n\\n11 owed Calabrese many times that amount. The prosecution suggested \\n\\n12 that the $500 found in Jeannot’s home may have been only a small \\n\\n13 portion of the murder‐for‐hire payment. But the prosecution \\n\\n\\n\\n\\n 22 See, e.g., Carl Rochelle, Redesigned $100 Bill Aimed at Foiling Counterfeiters, CNN \\n (Mar. 25, 1996, 1:35 AM), http://edition.cnn.com/US/9603/new_100_bill/index.html \\n (stating that the redesigned $100 bills with a larger Ben Franklin were to go into \\n circulation on March 25, 1996). \\n\\n\\n\\n 44\\n\\n \\n\\n\\n\\n\\n 1 presented no theory or evidence as to what may have happened to \\n\\n 2 any cash payment that exceeded the $500 found. \\n\\n 3 C. Forensic Evidence \\n\\n 4 We turn next to the expert testimony of two other Nassau \\n\\n 5 County detectives and Nassau County Deputy Chief Medical \\n\\n 6 Examiner DeMartino regarding the bullet holes in Calabrese’s \\n\\n 7 sweatshirt. The state argues that forensic evidence clearly established \\n\\n 8 that, just before Jeannot fired the first shot, Orlando pulled \\n\\n 9 Calabrese’s sweatshirt over Calabrese’s head to help Jeannot shoot \\n\\n10 him.23 \\n\\n11 We disagree that this evidence was persuasive of Orlando \\n\\n12 helping Jeannot shoot Calabrese. First, the location of the bullet holes \\n\\n13 did not clearly establish that Calabrese’s sweatshirt had been pulled \\n\\n14 up over his head at the time the first shot was fired. That is the \\n\\n\\n\\n The district court agreed with that argument, stating that the forensic evidence \\n 23\\n\\n gave rise to “an inescapable inference . . . that Orlando . . . pulled the sweatshirt \\n over Calabreseʹs head.” Orlando, 246 F. Supp. 3d at 576. \\n\\n\\n\\n 45\\n\\n \\n\\n\\n\\n\\n 1 relevant time that, according to the prosecution, Orlando would have \\n\\n 2 been pulling up the sweatshirt. The first shot undisputedly went \\n\\n 3 through Calabrese’s right forearm, making holes only in his \\n\\n 4 sweatshirt sleeve, and the bullet then lodged in the right side of \\n\\n 5 Calabrese’s head. The prosecution suggested to the jury that Orlando \\n\\n 6 had pulled the sweatshirt so far over Calabrese’s head that the back \\n\\n 7 of his head was exposed, allowing the first bullet to pass through the \\n\\n 8 sleeve without creating any other holes in the sweatshirt. That is \\n\\n 9 possible, but that evidence is just as—if not more—consistent with \\n\\n10 Calabrese, for example, putting up his arms in a defensive position, \\n\\n11 and the first bullet passing through his right sleeve and arm, and then, \\n\\n12 into his uncovered24 head. Indeed, the medical examiner DeMartino \\n\\n13 concluded that the wound in Calabrese’s right arm was consistent \\n\\n\\n\\n\\n 24 Nassau County Forensic Evidence Bureau Detective Kovar, whom the \\n prosecution called to testify as to trace forensic evidence at the scene of the crime, \\n agreed that the hood of the sweatshirt was not covering Calabrese’s head at the \\n time the first shot was fired. \\n\\n\\n\\n 46\\n\\n \\n\\n\\n\\n\\n 1 with Calabrese having raised his arm in a defensive manner prior to \\n\\n 2 the first shot being fired. Or, even if the sweatshirt had been pulled \\n\\n 3 up, it could have been done by Jeannot prior to shooting Calabrese. \\n\\n 4 By contrast, the forensic evidence was clearer that at the time \\n\\n 5 the second and third shots were fired into the back of Calabrese’s \\n\\n 6 head, his sweatshirt was pulled up over his head. There were holes \\n\\n 7 in the back of Calabrese’s sweatshirt that matched up with the bullet \\n\\n 8 wounds in the back of his head. But, it is not disputed that at the time \\n\\n 9 the second and third shots were fired, Calabrese was already lying, \\n\\n10 face‐down, on the ground from the effect of the first shot. Maybe \\n\\n11 Orlando pulled the sweatshirt over Calabrese’s head after the first \\n\\n12 shot; maybe it was Jeannot who pulled up the sweatshirt at this point \\n\\n13 to avoid blood splatter; or maybe the sweatshirt came upward as \\n\\n14 Calabrese fell to the ground and struggled after the first shot. In any \\n\\n15 event, the only obvious conclusions from the sweatshirt and autopsy \\n\\n16 evidence were that Calabrese was first shot by Jeannot from behind, \\n\\n\\n\\n\\n 47\\n\\n \\n\\n\\n\\n\\n 1 while he was standing up, and then twice more while lying on the \\n\\n 2 ground, with the sweatshirt over his head for the second and third \\n\\n 3 shots. But it is far from clear how the sweatshirt ended up over his \\n\\n 4 head. \\n\\n 5 The state introduced no other forensic evidence pointing to \\n\\n 6 Orlando, such as DNA, fingerprints, or blood in his car or on his \\n\\n 7 clothing. In sum, the forensic evidence to support the prosecution’s \\n\\n 8 accomplice theory was insubstantial. \\n\\n 9 D. Orlando’s Choice of a Meeting Location \\n\\n10 The evidence that Orlando chose a discreet meeting location to \\n\\n11 pay his debt to Calabrese was also only minimally probative of his \\n\\n12 guilt. Orlando told investigators that he and Calabrese had arranged \\n\\n13 to meet on December 3 in Island Park, and that he called Calabrese \\n\\n14 shortly beforehand to change the meeting to a more secluded place \\n\\n15 because there were several people within sight of the planned \\n\\n16 meeting location. \\n\\n\\n\\n\\n 48\\n\\n \\n\\n\\n\\n\\n 1 Jurors could have credited Orlando’s choice of meeting \\n\\n 2 location as part of a plan to murder Calabrese, but they could also \\n\\n 3 reasonably have accepted that Orlando was concerned about being \\n\\n 4 seen engaging in an illegal $17,000 gambling transaction. \\n\\n 5 E. Evidence of an Attempt to Create an Alibi \\n\\n 6 The prosecution also contended that the jury could have \\n\\n 7 construed Orlando’s several stops after the murder as evidence of an \\n\\n 8 attempt to manufacture a false alibi. Orlando explained the stops as \\n\\n 9 an attempt to be seen with Jeannot, so that Jeannot could not blame \\n\\n10 the murder on Orlando. But, a jury could instead have reasonably \\n\\n11 inferred that, given Jeannot’s purported threat to Orlando to maintain \\n\\n12 his silence, Orlando’s behavior after the murder was consistent with \\n\\n13 an attempt to put Jeannot at ease that Orlando would not report \\n\\n14 Jeannot’s role in the murder. \\n\\n15 \\n\\n16 \\n\\n\\n\\n\\n 49\\n\\n \\n\\n\\n\\n\\n 1 F. Evidence Orlando Was at the Murder Scene \\n\\n 2 Lastly, we acknowledge that the prosecution needed only to \\n\\n 3 convict Orlando of murder and not to prove specifically its murder‐\\n\\n 4 for‐hire theory. In that regard, the state emphasizes, for example, the \\n\\n 5 evidence that Orlando was present at the murder scene. In addition, \\n\\n 6 Orlando’s coworker Barbara Diamant testified that Orlando told her \\n\\n 7 the morning after the homicide that Calabrese had been shot in the \\n\\n 8 back of the head three times, before this became public information. \\n\\n 9 However, that Orlando was present for the murder was not disputed \\n\\n10 by him in his second statement or at trial, and as discussed above, the \\n\\n11 evidence that Orlando assisted the murder in some way was made \\n\\n12 substantially stronger by Jeannot’s incriminating confession. \\n\\n13 * * * \\n\\n14 In sum, considered both in isolation and cumulatively, the \\n\\n15 properly admitted evidence of Orlando’s guilt leaves us with “grave \\n\\n16 doubt” about whether the trial court’s error substantially and \\n\\n\\n\\n\\n 50\\n\\n \\n\\n\\n\\n\\n 1 injuriously influenced the jury’s verdict. See Davis, 135 S. Ct. at 2198. \\n\\n 2 McGinn’s testimony of Jeannot’s incriminating statement was \\n\\n 3 essential in persuading the jury of Orlando’s guilt and meets the bar \\n\\n 4 set by the Brecht standard. Accordingly, the constitutional error in \\n\\n 5 this case was not harmless. \\n\\n 6 CONCLUSION \\n\\n 7 For the foregoing reasons, we REVERSE the district court’s \\n\\n 8 denial of Orlando’s petition, and REMAND the case to the district \\n\\n 9 court with instructions to issue a writ of habeas corpus to Orlando on \\n\\n10 the sixtieth calendar day after the issuance of our mandate unless the \\n\\n11 District Attorney of Nassau County has, by that time, taken concrete \\n\\n12 and substantial steps to expeditiously retry Orlando. The mandate \\n\\n13 shall issue forthwith. \\n\\n\\n\\n\\n 51\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4366538/\", \"author_raw\": \"DRONEY, Circuit Judge:\"}, {\"author\": \"1 SHEA, District Judge, dissenting\", \"type\": \"dissent\", \"text\": \"1 SHEA, District Judge, dissenting: \\n\\n\\n 2 I respectfully dissent. Federal habeas relief is available under Section \\n\\n 3 2254 only to remedy “extreme malfunctions in the state criminal justice \\n\\n 4 systems” in “cases where there is no possibility fairminded jurists could \\n\\n 5 disagree that the state courtʹs decision conflicts with [the Supreme] Courtʹs \\n\\n 6 precedents.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011). The New \\n\\n 7 York court’s application of Tennessee v. Street, 471 U.S. 409 (1985), the \\n\\n 8 Supreme Court decision most pertinent to this case, does not satisfy that \\n\\n 9 demanding standard because it reflects a reasonable accommodation of the \\n\\n10 competing interests identified in that decision. The Street Court held that \\n\\n11 the Confrontation Clause’s “mission” is “to advance the accuracy of the \\n\\n12 truth‐determining process in criminal trials,” and that to fulfill that \\n\\n13 mission, trial judges must attend to both “assur[ing] the integrity of the \\n\\n14 trial’s truth‐seeking function and eliminat[ing] the risk of the jury’s \\n\\n15 improper use of evidence.” Id. at 415 (emphasis added). Here, the state \\n\\n16 trial judge reasonably applied the first of those two principles by admitting \\n\\n17 the detective’s account of Jeannot’s accusation for the proper, non‐hearsay \\n\\n18 purpose of allowing the State to counter the defendant’s explanation about \\n\\n\\n 1 \\n \\n\\n 1 why he changed his story. Excluding that evidence would have enhanced \\n\\n 2 the credibility of Orlando’s second version of events, which was the one \\n\\n 3 his lawyer urged the jury to adopt, and thus frustrated the trial’s truth‐\\n\\n 4 seeking function. The trial judge also reasonably applied the second \\n\\n 5 principle by twice giving a detailed limiting instruction that the jury was \\n\\n 6 not to consider Jeannot’s accusation for its truth and, indeed, not to \\n\\n 7 consider whether he had made it at all. While I acknowledge that this case \\n\\n 8 is harder than Street, I conclude that fairminded jurists could disagree on \\n\\n 9 whether the state court properly applied that decision and thus that the \\n\\n10 district court properly denied the writ. \\n\\n\\n11 I \\n\\n\\n12 The majority’s recounting of the record is thorough, but I offer two \\n\\n13 clarifications to explain my views. \\n\\n\\n14 First, Orlando’s trial counsel did not object to all of Detective \\n\\n15 McGinn’s testimony about the interview with Jeannot. Indeed, he used a \\n\\n16 portion of it to bolster Orlando’s explanation that he changed his story and \\n\\n17 told the truth once his fear of Jeannot had lifted after he learned that \\n\\n18 Jeannot had confessed. The issue involved in this appeal first arose when \\n\\n 2 \\n \\n\\n 1 the State sought a ruling in limine to admit Detective McGinn’s testimony \\n\\n 2 that “I confronted [Orlando], I told him that [Jeannot’s] giving it up and \\n\\n 3 he’s telling us he did the shooting and he’s telling us you made him.” T. \\n\\n 4 164. During the in limine proceeding, the prosecutor told the trial judge \\n\\n 5 that the purpose of this testimony would be “to establish the context in \\n\\n 6 which the defendant all of a sudden changes his initial story . . . .” Id. \\n\\n 7 Defense counsel then made his Confrontation Clause objection, pointing \\n\\n 8 out that there had been a Bruton severance “to protect the defendant not \\n\\n 9 being able to cross examine any statements that would be used against him \\n\\n10 in this case such as the codefendant’s Herva Jeannot . . . perhaps even six \\n\\n11 as a number of statements that Mr. Jeannot had made.” T. 165.1 Specifically \\n\\n12 addressing the prosecutor’s motion, he then stated as follows: \\n\\n\\n13 “[I]f we’re talking perhaps about one of the last statements that Mr. \\n14 Jeannot had made regarding . . . giving it up or giving up the entire \\n15 thing, opposed to that Mr. Jeannot had shot Mr. Calabrese, \\n16 obviously I have no opposition to that. However, it’s a matter of \\n17 how much of that statement is going to be permitted . . . . But, I think \\n18 in regard to what is being said and being [pared] down, I have no \\n \\n 1 While the record does not disclose the trial judge’s ruling regarding the Bruton \\n severance, defense counsel’s reference to “a number of statements” by Jeannot \\n suggests there was more to it than merely eliminating the “payment” statement \\n from Orlando’s trial. It is thus not clear from the record that the “payment” \\n statement “was the reason for the Bruton severance in the first place.” Maj. Op. \\n at 28. \\n 3 \\n \\n\\n 1 opposition to the fact Mr. Jeannot had indicated that Mr. Jeannot \\n 2 was present and Mr. Jeannot shot him. But I think anything in \\n 3 addition to that, again, is prejudicial. It violates my ability and right \\n 4 to cross‐examine the individual that is now accusing my client of \\n 5 that, and I would move to preclude anything in addition to that first \\n 6 portion . . . .” \\n 7 T. 165–66. In other words, defense counsel did not object to the portion of \\n\\n 8 McGinn’s statement that Jeannot said he shot Calabrese but did object to \\n\\n 9 the portion that Jeannot said Orlando paid him to do it.2 That was a \\n\\n10 sensible trial strategy, because the former portion supported Orlando’s \\n\\n11 second version of events and his explanation that he lied initially out of \\n\\n12 fear of Jeannot and came clean once he learned that Jeannot had confessed. \\n\\n13 Defense counsel harped on this latter theme in both his opening statement \\n\\n14 and closing argument. T. 205 (“It’s not until Herva Jeannot tells the \\n\\n15 detective that Herva Jeannot himself had shot Mr. Calabrese, that Mark \\n\\n16 then felt at ease that now they’re not going to come after Mark.”); T. 851 \\n\\n17 (“And there is no question Mark met with Detective McHugh, and he lied \\n\\n18 about certain things to Detective McHugh. No question, not disputing that. \\n\\n19 And you heard from Detective McGinn, what happened, we will go over \\n\\n\\n \\n 2 I do not read defense counsel’s later, summary reference to his objection as \\n changing his position on the lack of objection to the portion of McGinn’s \\n statement that Jeannot said that he shot Calabrese. T. 591. \\n 4 \\n \\n\\n 1 that a little bit, before Mark finally says, now I feel safe. Now I can tell you \\n\\n 2 what happened. I don’t want to be the first one, that Herva Jeannot killed \\n\\n 3 Calabrese. I don’t want him coming after my family.”). \\n\\n\\n 4 Second, the trial judge’s ruling admitted only the statements by \\n\\n 5 McGinn identified by the prosecutor in the pretrial hearing, i.e., that “I \\n\\n 6 confronted [Orlando], I told him that [Jeannot’s] giving it up and he’s \\n\\n 7 telling us he did the shooting and he’s telling us you made him.” T. 164–\\n\\n 8 67. The ruling did not permit McGinn to give the vouching testimony \\n\\n 9 stressed by the majority, i.e., that “I believe that Herva Jeannot was \\n\\n10 relaying some of the events that really took place that night.” T. 620. That \\n\\n11 testimony was problematic, but not primarily because it violated the \\n\\n12 Confrontation Clause; it was inadmissible on multiple grounds – lack of \\n\\n13 personal knowledge (McGinn was not in the room with Jeannot), opinion \\n\\n14 by a lay witness (“I believe . . . .”), and vouching for another’s statement \\n\\n15 (regardless of its content). Despite these obvious flaws, however, defense \\n\\n16 counsel did not object to it, move to strike it, seek a mistrial, or ask for an \\n\\n17 instruction that the jury disregard it – perhaps because it also vouched for \\n\\n18 the portion of Jeannot’s alleged statement that defense counsel would use \\n\\n\\n 5 \\n \\n\\n 1 to his client’s advantage – that Jeannot said he shot Calabrese. Nor did \\n\\n 2 Orlando raise McGinn’s vouching statement in the appeal of his \\n\\n 3 conviction, his habeas petition before the district court, or his appeal brief \\n\\n 4 in this Court. While it is still proper to consider it under Street – because it \\n\\n 5 goes to the risk that the statement “Orlando paid him to do it” would be \\n\\n 6 misused by the jury (which I discuss below) – it is important to note that \\n\\n 7 the trial judge’s pretrial ruling applying Street did not authorize McGinn’s \\n\\n 8 vouching statement.3 \\n\\n\\n 9 II \\n\\n\\n10 Orlando contends that the Appellate Division unreasonably applied \\n\\n11 Bruton and Street when it held that admitting the detective’s statement that \\n\\n12 “[Jeannot] said that he was the murderer but that Mark Orlando had paid \\n\\n13 him to do it” did not violate the Confrontation Clause.4 Whether that is so \\n\\n \\n 3 As I explain below, when placed in context, McGinn’s other references to the \\n “truth” and “truer versions” when testifying about Jeannot’s interview do not \\n appear to have been attempts to vouch for Jeannot to the jury. \\n 4 Orlando also argues that the Appellate Division’s ruling was an unreasonable \\n\\n application of Crawford. But Crawford is of limited guidance in addressing the \\n factual situation here, except insofar as it reaffirms Street’s holding that \\n admission of out‐of‐court statements for nonhearsay purposes does not violate \\n the Confrontation Clause. Crawford, 541 U.S. at 59 n.9 (“The Clause also does not \\n bar the use of testimonial statements for purposes other than establishing the \\n truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414 (1985).”). \\n 6 \\n \\n\\n 1 boils down to two questions: (1) was there a proper non‐hearsay purpose \\n\\n 2 for the statement, which requires considering the degree to which \\n\\n 3 exclusion of the detective’s statement would have impeded the jury “in . . . \\n\\n 4 evaluating the truth of [Orlando’s explanation as to why he changed his \\n\\n 5 story] and . . . weighing the reliability of his [second and third statements \\n\\n 6 to the police]”; and (2) if so, could the statement nonetheless “have been \\n\\n 7 misused by the jury”? Street, 471 U.S. at 414. Street suggests that the second \\n\\n 8 question involves consideration of (1) the trial court’s limiting instructions; \\n\\n 9 (2) whether the prosecutor made proper use of the statement during the \\n\\n10 trial; and (3) whether there were “alternatives that would have both \\n\\n11 assured the integrity of the trial’s truth‐seeking function and eliminated \\n\\n12 the risk of the jury’s improper use of the evidence.” Id. at 415–16. There is \\n\\n13 at least a “possibility fairminded jurists could disagree” about whether the \\n\\n14 New York courts properly answered these questions. \\n\\n\\n15 Proper Purpose \\n\\n\\n16 The non‐hearsay purpose here was similar to the one that prevailed \\n\\n17 in Street: to shed light on the credibility of Orlando’s second statement to \\n\\n18 the police. See Street, 471 U.S. at 415 (“Had the prosecutor been denied the \\n\\n 7 \\n \\n\\n 1 opportunity to present Peele’s confession in rebuttal so as to enable the \\n\\n 2 jury to make the relevant comparison, the jury would have been impeded \\n\\n 3 in its task of evaluating the truth of respondent’s testimony and \\n\\n 4 handicapped in weighing the reliability of his confession.”). Orlando \\n\\n 5 claimed that he had lied in his first statement out of fear of Jeannot, but \\n\\n 6 once told of Jeannot’s confession, his fear lifted and he gave a truthful \\n\\n 7 account in his second statement.5 The State would have had no answer to \\n\\n 8 the fear‐dissipation narrative had the trial judge sustained defense \\n\\n 9 counsel’s objection and excluded only the portion of McGinn’s statement \\n\\n10 in which he said Jeannot implicated Orlando in the murder. Orlando \\n\\n11 started hinting at his alleged fear of Jeannot as soon as McGinn told him \\n\\n12 that “Detective McHugh was over there talking to Herva [Jeannot] and he \\n\\n13 was probably giving us, you know, other facts that happened that night, \\n\\n14 the truth as to what happened that night.” T. 620. At that point, for the first \\n\\n15 time, Orlando said, “detective, you don’t understand,” a refrain he then \\n\\n16 repeated several times before telling McGinn that “he was afraid for his \\n\\n\\n\\n \\n 5 As the majority notes, the second statement was followed by a substantially \\n similar third, written statement. While there were differences between the two \\n the prosecutor stressed in closing argument, they are not material to my dissent. \\n 8 \\n \\n\\n 1 family” and slept next to a shotgun. Id. at 623. According to McGinn’s \\n\\n 2 testimony, it was not until McGinn added “[Jeannot] stated he was the \\n\\n 3 murderer but that Mark Orlando paid him to do it” that Orlando finally \\n\\n 4 stated “okay, I will tell you the truth” and “then began to tell [McGinn] \\n\\n 5 another version of events that happened that night.” Id. at 624–25. \\n\\n\\n 6 That sequence fit both the State’s account that Orlando changed his \\n\\n 7 tune only when told he was being accused and Orlando’s account that he \\n\\n 8 did so because Jeannot’s confession meant he was no longer a threat. But \\n\\n 9 without the piece of McGinn’s testimony that he told Orlando Jeannot was \\n\\n10 implicating him, Orlando’s explanation for his change of story would have \\n\\n11 been a good deal stronger and the overall credibility of his second \\n\\n12 statement would have been enhanced. And Orlando’s defense hinged on \\n\\n13 the credibility of that statement. In his closing argument, defense counsel \\n\\n14 focused on convincing the jury that Orlando’s second statement was \\n\\n15 truthful and that his first had been a lie born of his fear of Jeannot. T. 845 \\n\\n16 (“[E]verything that Mark Orlando had told Detective Cereghino is \\n\\n17 corroborated by the sixty or so exhibits introduced into evidence. \\n\\n18 Everything here supports what Mark had said.”); id. (“Herva . . . \\n\\n\\n 9 \\n \\n\\n 1 [t]hreatened to kill his wife if he said anything. . . . Here’s a vicious \\n\\n 2 murder. Why didn’t Mark go to the police. I think you see now the answer \\n\\n 3 to that. When I discussed how it was that he gave the first version to the \\n\\n 4 one detective, McHugh, and then to Detective McGinn, finally to Detective \\n\\n 5 Cereghino.”). That narrative would have been much more persuasive if \\n\\n 6 supported by the piece of McGinn’s testimony defense counsel wanted \\n\\n 7 before the jury – that McGinn told Orlando that Jeannot had confessed to \\n\\n 8 the shooting – and left unrebutted by the remaining piece defense counsel \\n\\n 9 wanted out – McGinn’s testimony that Jeannot was also implicating \\n\\n10 Orlando. Had the trial judge excluded the portion of McGinn’s testimony \\n\\n11 to which defense counsel objected, “the jury would have been impeded in \\n\\n12 its task of evaluating the truth of [the defendant’s second statement].” \\n\\n13 Street, 471 U.S. at 415. The Appellate Division’s affirmance of the trial \\n\\n14 judge’s ruling thus reflects a reasonable application of Street. \\n\\n\\n15 To be sure, the trial judge could have excluded all testimony about \\n\\n16 confronting Orlando with the Jeannot interview – leaving both sides with \\n\\n17 no explanation about why Orlando changed his story – but no one asked \\n\\n18 him to do so. And no one asked the Appellate Division to decide whether \\n\\n\\n 10 \\n \\n\\n 1 the he should have done so sua sponte. As presented to the New York \\n\\n 2 courts, the issue was limited to whether McGinn could recount Jeannot’s \\n\\n 3 statement that Orlando had paid him to commit the murder. Orlando’s \\n\\n 4 trial counsel explicitly declined to object to the portion of Jeannot’s \\n\\n 5 statement in which he implicated himself. T. 165–166 (“I have no \\n\\n 6 opposition to the fact Mr. Jeannot had indicated that Mr. Jeannot was \\n\\n 7 present and Mr. Jeannot shot him.”). \\n\\n\\n 8 The majority points out that Orlando did not take the stand at his \\n\\n 9 trial. Thus, unlike in Street, the State was not forced to rebut a defendant’s \\n\\n10 testimony. But the Court’s opinion in Street does not suggest that its \\n\\n11 sanction of non‐hearsay use of an accomplice’s statement turned on the \\n\\n12 defendant’s election to testify in that case. Nor does it suggest that the \\n\\n13 government may use such a statement to attack the credibility of a \\n\\n14 defendant’s statements only when the defendant offers them.6 It was not \\n\\n\\n\\n \\n 6 The two concurring justices in Street did make that suggestion, but their views \\n did not carry the day. See 471 U.S. at 417 (“With respect to the State’s need to \\n admit the confession for rebuttal purposes, it is important to note that \\n respondent created the need to admit the statement by pressing the defense that \\n his confession was a coerced imitation of [his co‐defendant’s] out‐of‐court \\n confession.”) (Brennan, J., concurring); see also Furr, 440 F.3d at 39 (“As the \\n [Street] Court issued a majority decision endorsed by six justices, however, and \\n 11 \\n \\n\\n 1 unreasonable for the Appellate Division to read Street as allowing non‐\\n\\n 2 hearsay use of an accomplice’s statement to attack the credibility of, or \\n\\n 3 provide context for, a defendant’s statements offered in the government’s \\n\\n 4 case in chief. Indeed, several federal courts of appeal have interpreted \\n\\n 5 Street the same way. See, e.g., Lee v. McCaughtry, 892 F.2d 1318, 1325 (7th \\n\\n 6 Cir. 1990) (reversing order granting habeas relief where state introduced \\n\\n 7 tape of prosecutor’s recounting of accomplice’s statement to “place into \\n\\n 8 context for the jury the metamorphosis of [the defendant’s] accounts of \\n\\n 9 events that took place at the murder scene”: “Since the prosecutor’s \\n\\n10 account of [the accomplice’s] statements were offered not for the truth of \\n\\n11 those statements, but to explain the context of the defendant’s change in \\n\\n12 his story, they are not hearsay, and, absent complicating circumstances, \\n\\n13 would not have violated the confrontation clause.” (citing Street)); Furr, 440 \\n\\n14 F.3d at 36–41 (state court’s application of Street “readily passes muster” \\n\\n15 under Section 2254 where prosecutor introduced accomplice’s statement \\n\\n16 regarding gun and defendant’s threatening letter to accomplice in its case \\n\\n17 in chief to support witness intimidation charge); Gover v. Perry, 698 F.3d \\n\\n \\n not merely a plurality opinion, the concurrence cannot be considered a viable \\n Court holding.”). \\n 12 \\n \\n\\n 1 295, 307 (6th Cir. 2012) (“Given the fact that there was precedent at the \\n\\n 2 time that providing background to a police investigation through out‐of‐\\n\\n 3 court statements was a permissible nonhearsay purpose, we must \\n\\n 4 conclude that it was not unreasonable. It is certainly within the large scope \\n\\n 5 of conclusions ‘fairminded jurists’ could reach, even if others disagreed.”). \\n\\n\\n 6 Risk of Misuse by Jury \\n\\n\\n 7 While Bruton held that courts cannot expect juries to follow limiting \\n\\n 8 instructions when, in a joint trial, they hear a co‐defendant’s statement \\n\\n 9 implicating a defendant, the Supreme Court has treated that holding as a \\n\\n10 “narrow exception” to the “almost invariable assumption of the law that \\n\\n11 jurors follow their instructions.” Richardson v. Marsh, 481 U.S. 200, 207 \\n\\n12 (1987). Further, the exception applies “when the facially incriminating \\n\\n13 confession of a nontestifying codefendant is introduced at their joint trial.” \\n\\n14 Id. (emphasis added). Street made the same point more generally, stating \\n\\n15 that “[t]he assumption that jurors are able to follow the court’s instructions \\n\\n16 fully applies when rights guaranteed by the Confrontation Clause are at \\n\\n17 issue.” Street, 471 U.S. at 415 n.6. \\n\\n\\n\\n\\n 13 \\n \\n\\n 1 Here, the “invariable assumption” that jurors follow limiting \\n\\n 2 instructions applies, because this case is much closer to Street than to \\n\\n 3 Bruton. First, it was not a joint trial; indeed, like the Court in Street, the \\n\\n 4 New York Appellate Division upheld the admission of an accomplice’s \\n\\n 5 statement against the defendant after the two had been severed for trial \\n\\n 6 under Bruton. Second, again as in Street, the statement was not admitted \\n\\n 7 for its truth and the jury was instructed not to consider it for that purpose. \\n\\n 8 In Bruton, by contrast, the issue was whether, in a joint trial where a co‐\\n\\n 9 defendant’s statement implicating both Bruton and the co‐defendant was \\n\\n10 admitted, the jury could follow an instruction to consider the co‐\\n\\n11 defendant’s statement for its truth against the co‐defendant while putting \\n\\n12 the same statement out of its mind entirely when deciding on Bruton’s \\n\\n13 guilt. Bruton, 391 U.S. at 131 (“In joint trials, however, when the admissible \\n\\n14 confession of one defendant inculpates another defendant, the confession \\n\\n15 is never deleted from the case and the jury is expected to perform the \\n\\n16 overwhelming task of considering it in determining the guilt or innocence \\n\\n17 of the declarant and then of ignoring it in determining the guilt or \\n\\n18 innocence of any codefendants of the declarant. A jury cannot segregate \\n\\n\\n\\n 14 \\n \\n\\n 1 evidence into separate intellectual boxes.” (internal quotation marks \\n\\n 2 omitted)). The Appellate Division thus properly cited Street as the most \\n\\n 3 pertinent Supreme Court precedent here. People v. Orlando, 61 A.D.3d 1001, \\n\\n 4 1002 (N.Y. App. Div., Second Dep’t. 2009). \\n\\n\\n 5 To be sure, applying Street properly involves more than just \\n\\n 6 admitting any statement by an accomplice and instructing the jury not to \\n\\n 7 consider it for its truth. Specifically, the Court’s analysis in Street suggests \\n\\n 8 that, in deciding whether to uphold the admission of an accomplice’s out‐\\n\\n 9 of‐court statement for a non‐hearsay purpose under the Confrontation \\n\\n10 Clause, courts should consider (1) the adequacy of the instructions; (2) the \\n\\n11 manner in which the out‐of‐court statement was used at trial, 471 U.S. at \\n\\n12 416; and (3) whether there were “alternatives that would have both \\n\\n13 assured the integrity of the trial’s truth‐seeking function and eliminated \\n\\n14 the risk of the jury’s improper use of evidence,” id. at 415. I consider these \\n\\n15 factors below.7 \\n\\n\\n \\n 7 In its brief ruling, the New York Appellate Division did not canvass these \\n factors, but it did cite Street and point out the non‐hearsay purpose of the \\n statement and the trial court’s limiting instructions. People v. Orlando, 61 A.D.3d \\n 1001, 1002 (App. Div. 2d Dep’t 2009). In Furr v. Brady, the First Circuit rejected a \\n Section 2254 petition asserting that the state court had unreasonably applied \\n 15 \\n \\n\\n 1 1. Limiting Instructions \\n\\n\\n 2 Both when McGinn’s testimony was admitted and in the final \\n\\n 3 charge, the trial judge instructed the jury as follows: \\n\\n\\n 4 Ladies and gentlemen, you have been permitted to hear \\n 5 testimony about remarks made to the defendant by Detective \\n 6 McGinn about statements allegedly made by Herva Jeannot. \\n 7 You’re to consider this testimony only when considering the \\n 8 circumstances under which the defendant himself may have \\n 9 made statements and for no other purposes. You are to \\n10 completely disregard any statement allegedly made by Herva \\n11 Jeannot when considering evidence against the defendant. \\n12 Any statement allegedly made by Herva Jeannot is not \\n13 evidence against the defendant and may never be considered \\n14 as evidence against the defendant. You are not to concern \\n15 yourself with whether Herva Jeannot did or did not make any \\n\\n \\n Street because it had failed expressly to consider these factors. Furr v. Brady, 440 \\n F.3d 34, 39–40 (1st Cir. 2006)(“[T]he [Street] Court did not purport to prescribe a \\n mandatory checklist of factors to be considered in every case. Rather, it noted, \\n absent other circumstances, it is sufficient that the codefendant statement is \\n nonhearsay – viz., not admitted for the truth of the matter asserted, and provided \\n the court gives a limiting instruction to that effect. . . . Thus the determination as \\n whether the general rule of admissibility in Street applies is assessed case by case, \\n based upon the presence of whatever special circumstances would create an \\n unreasonable risk that the jury disregarded their instructions.”). In any event, the \\n brevity of the Appellate Division’s consideration of the issue does not diminish \\n the deference we owe its application of Street under 28 U.S.C. Sec. 2254. \\n Harrington, 562 U.S. at 98 (“Where a state court’s decision is unaccompanied by \\n an explanation, the habeas petitioner’s burden still must be met by showing that \\n there was no reasonable basis for the state court to deny relief. This is so whether \\n or not the state court reveals which of the elements in a multipart claim it found \\n insufficient, for Section 2254(d) applies when a ‘claim,’ not a component of one, \\n has been adjudicated.”). \\n 16 \\n \\n\\n 1 statements to the police, and if he did, what those statements \\n 2 may have been or whether or not they were true. \\n 3 I direct you in this regard and I will direct you again in \\n 4 my closing instructions to you. \\n 5 T. 624; id. at 930–31.8 \\n\\n\\n 6 I do not agree that this instruction was “decidedly unclear.” Maj. \\n\\n 7 Op. at n.16. On its face, it directs the jurors to disregard for any purpose \\n\\n 8 any statement by Jeannot himself, but lets them consider how Orlando \\n\\n 9 reacted when McGinn told him that Jeannot had made a statement \\n\\n10 implicating him. I do not to see how the instruction could have been made \\n\\n11 much clearer, and, apparently, neither did Orlando’s counsel. His trial \\n\\n12 counsel did not object to the instruction, and his appellate counsel did not \\n\\n13 challenge it before the Appellate division. T. 136. Federal courts of appeal \\n\\n14 have found vaguer, less detailed instructions to be reasonable applications \\n\\n15 of Street. See Furr, 440 F.3d at 39 n.3 (holding that the state trial court’s \\n\\n16 limiting instruction was adequate under Street even though it had not \\n\\n17 explicitly instructed the jury that it could not consider the “truth” of the \\n\\n18 statement); Lee, 892 F.2d at 1321, 1325–26 (upholding the denial of a § 2254 \\n\\n \\n 8 The first time the trial judge gave this instruction, the transcript does not reflect \\n that he said “and” before “if he did, what those statements may have been or \\n whether or not they were true.” \\n 17 \\n \\n\\n 1 petition where the trial court instructed the jury once – when the evidence \\n\\n 2 was admitted – that “[i]t’s a sequence of events. That is one thing that \\n\\n 3 shows why hearsay may be offered just to allow us to see what happened \\n\\n 4 next . . . [Y]ou are not to take as substantive evidence the statement of Mr. \\n\\n 5 Williams, because it is not here in Court. But it is offered to show you what \\n\\n 6 happened next; okay? And not to take it as substantive evidence or as \\n\\n 7 evidence that it actually happened.”). Cf. Adamson v. Cathel, 633 F.3d 248, \\n\\n 8 258–259 (3d Cir. 2011) (granting a Section 2254 petition where an \\n\\n 9 accomplice’s out‐of‐court statements were offered against the defendant \\n\\n10 for a non‐hearsay purpose but the state court failed to give any limiting \\n\\n11 instruction). \\n\\n\\n12 The majority contends that McGinn’s vouching statement made the \\n\\n13 instruction unclear, but as noted, that statement was not a product of the \\n\\n14 trial court’s ruling and there was no objection to it or request for an \\n\\n15 instruction that the jury ignore it. Even so, the trial judge’s repeated \\n\\n16 admonition that the jury was not to consider whether Jeannot made any \\n\\n17 statement or whether it was true addressed McGinn’s improper vouching \\n\\n18 for Jeannot, which was limited to a single sentence, i.e., “I believe that \\n\\n\\n 18 \\n \\n\\n 1 Herva Jeannot was relaying some of the events that really took place that \\n\\n 2 night.” T. 620. McGinn’s other statements about “the truth” and “truer \\n\\n 3 versions” when referring to Jeannot were directed at Orlando, not the jury, \\n\\n 4 and when viewed in context and in the light of the limiting instruction, \\n\\n 5 were part of McGinn’s attempt to induce Orlando to provide more detail \\n\\n 6 about the murder. T. 620 (“I went back in and I told Mr. Orlando that \\n\\n 7 Detective McHugh was over there talking to Herva [Jeannot] and he was \\n\\n 8 probably giving us, you know, other facts that happened that night, the \\n\\n 9 truth as to what happened that night. Now would be the time for Mark \\n\\n10 Orlando to tell us what was going on.”); T. 621 (“I went back into the \\n\\n11 room. . . . Again, I explained to Mr. Orlando that Herva Jeannot was, in \\n\\n12 fact, giving up the, what we felt were truer versions of the events of Bobby \\n\\n13 Calabrese’s murder. . . . I told him that Herva Jeannot had given up where \\n\\n14 the gun was and that the defendant should at this point, if he wants his \\n\\n15 version of the story told tell us the truth at this point.”). \\n\\n\\n16 Nor do I agree that the prosecutor undermined the trial judge’s \\n\\n17 limiting instructions in his closing argument. Maj. Op. at 31. The \\n\\n18 prosecutor’s only reference to McGinn’s testimony about Jeannot’s \\n\\n\\n 19 \\n \\n\\n 1 statement was followed immediately by a comment about why Orlando \\n\\n 2 changed his story – the very non‐hearsay use for which the testimony was \\n\\n 3 admitted: “And Detective McGinn finally says, look, Herva’s giving it up. \\n\\n 4 Herva’s telling us everything. So, come on. He’s telling us he did the \\n\\n 5 shooting and you paid him. And the defendant realizes the time is now. I don’t \\n\\n 6 care what story I had together at all. I am telling the story and he la[t]ches \\n\\n 7 onto it and he can’t get it straight.” T. 895 (emphasis added.). This was \\n\\n 8 consistent with the trial judge’s instruction that the jury was to “consider \\n\\n 9 [McGinn’s recounting of Jeannot’s] statement only when considering the \\n\\n10 circumstances under which the defendant himself may have made \\n\\n11 statements and for no other purpose.” T. 930. \\n\\n\\n12 2. Use of the Statement at Trial \\n\\n\\n13 While he made only one reference to Jeannot’s reported statement in \\n\\n14 his closing argument, the prosecutor made multiple references to \\n\\n15 Orlando’s paying Jeannot, and I agree with the majority that the evidence \\n\\n16 supporting those references was weak – the presence of similar hundred‐\\n\\n17 dollar bills in both Orlando’s and Jeannot’s homes. That circumstance \\n\\n18 makes this case harder than Street, because it raises the possibility that the \\n\\n 20 \\n \\n\\n 1 jury might have, despite the judge’s clear instructions, turned back to \\n\\n 2 Jeannot’s reported accusation and considered it for its truth to find more \\n\\n 3 support for the prosecutor’s references to payment during closing \\n\\n 4 argument. Even clear jury instructions can be ineffective in some \\n\\n 5 circumstances, as Bruton and Street both teach. \\n\\n\\n 6 As the majority notes, however, the state did not have to prove that \\n\\n 7 Orlando paid Jeannot to kill Calabrese. What it had to prove was that \\n\\n 8 Orlando aided and abetted the killing, and payment was not an element of \\n\\n 9 that crime. In addition, there was evidence other than payment from \\n\\n10 which the jury could have found aiding and abetting – Orlando’s soliciting \\n\\n11 Calabrese to meet in an isolated area, driving Jeannot to and from the \\n\\n12 scene, and stopping his car to enable Jeannot to take a final shot at \\n\\n13 Calabrese and discard the gun and ammunition, among others. \\n\\n14 Determining whether Orlando paid Jeannot was not a necessary part of the \\n\\n15 jury’s task. \\n\\n\\n16 Further, the prosecutor’s references to payment in closing argument \\n\\n17 were brief, and his central theme was to emphasize the incriminating parts \\n\\n18 of Orlando’s second statement together with the implausibility of the part \\n\\n 21 \\n \\n\\n 1 in which he cast himself as a surprised bystander at the murder scene \\n\\n 2 rather than an accomplice. E.g., T. 871 (“You don’t think Herva Jeannot \\n\\n 3 needed an accomplice, do you. Why would Jeannot need an accomplice. \\n\\n 4 Why would Herva Jeannot need someone to get him in and out of that \\n\\n 5 unfamiliar area. Why would Herva Jeannot need someone to lure Bobby \\n\\n 6 into that desolate corner of Long Beach with the promise of a $17,000 \\n\\n 7 payment. Why would Herva Jeannot need someone to distract Bobby. . . \\n\\n 8 .”); id. at 883–85 (“[A]sk yourselves, what would an innocent bystander in \\n\\n 9 that situation have done. . . . Your common sense tells you that an innocent \\n\\n10 bystander would have been in shock. . . . How about our defendant. . . . \\n\\n11 He’s just seen Herva gun down Bobby. . . . Herva says let’s go and what \\n\\n12 does he do? He climbs into the Verona. . . . The defendant starts to drive \\n\\n13 around Bobby’s dying body. The defendant tells Herva he notices his feet \\n\\n14 was [sic] still moving, there was a little life left in him. . . . So I stopped. \\n\\n15 Herva got out, Herva went over to the body and tried to shoot him a \\n\\n16 couple more times, but the gun wouldn’t go off. So, Herva got back in. I \\n\\n17 drove him away. Is that the behavior of an innocent bystander in shock \\n\\n18 over what he’s just seen?”); id. at 888 (“Now we’re pulling up outside [a \\n\\n\\n\\n 22 \\n \\n\\n 1 friend’s] house and the defendant gets out of the car and Herva stays in \\n\\n 2 the car. . . . And you have proof beyond any reasonable doubt that the \\n\\n 3 defendant was right in the middle of it. . . . Do you think if the defendant \\n\\n 4 were really an innocent bystander, . . . who had just seen Herva execute \\n\\n 5 Bobby on the street, that Herva would have let the defendant go into the \\n\\n 6 [friend’s] house on his own. . . .”). \\n\\n\\n 7 Finally, while I cannot say that there was no risk of juror misuse of \\n\\n 8 Jeannot’s reported statement in light of the weaknesses in the State’s \\n\\n 9 evidence of payment, Street suggests that the existence of such a risk is not \\n\\n10 dispositive. Rather, the risk of misuse must be weighed against the risk of \\n\\n11 excluding critical evidence from the jury’s consideration. Street, 471 U.S. at \\n\\n12 415 (“[T]here were no alternatives that would have both assured the \\n\\n13 integrity of the trial’s truth‐seeking function and eliminated the risk of the \\n\\n14 jury’s improper use of evidence.”).9 Here, the Appellate Division weighed \\n\\n \\n 9 As for “alternatives” to admitting the detective’s statement in full, limiting the \\n statement to “Jeannot said he was the murderer” would not have “assured the \\n integrity of the trial’s truth‐seeking function.” 471 U.S. at 415. As discussed \\n above, this redaction, which defense counsel sought, instead would have \\n artificially enhanced the credibility of Orlando’s second statement by supporting \\n his account that he gave it because Jeannot’s own confession had removed his \\n fear that Jeannot would harm him and his wife if he told the truth. \\n\\n 23 \\n \\n\\n 1 the risk of misuse against the need to admit the detective’s testimony \\n\\n 2 about confronting Orlando with the accomplice’s reported statement to \\n\\n 3 enable the jury to consider all the facts bearing on the critical issue of the \\n\\n 4 credibility of Orlando’s second statement. It also factored into the balance \\n\\n 5 the trial court’s instruction directing the jury to confine its assessment of \\n\\n 6 that evidence to the nonhearsay purpose for which it was admitted. Even \\n\\n 7 if the Appellate Division’s ruling ultimately struck the balance incorrectly, \\n\\n 8 it reflected an application of Street about which “fairminded jurists could \\n\\n 9 disagree.” Harrington, 562 U.S. at 101; id. at 101–02 (“For purposes of Sec. \\n\\n10 2254(d)(1), an unreasonable application of federal law is different from an \\n\\n11 incorrect application of federal law. . . . It bears repeating that even a \\n\\n12 strong case for relief does not mean the state court’s contrary conclusion \\n\\n13 was unreasonable.” (internal quotation marks omitted)). \\n\\n\\n14 For these reasons, I would affirm the judgment of the district court \\n\\n15 denying the writ. \\n\\n\\n\\n\\n 24\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4366538/\", \"author_raw\": \"1 SHEA, District Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"JACOBS"},"judge2":{"kind":"string","value":"DRONEY"},"judge3":{"kind":"string","value":"SHEA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JACOBS\": \", Circuit\", \"DRONEY\": \", Circuit\", \"SHEA\": \", District\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4589285/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Orlando v. Nassau Cty. Dist. Atty's Off.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-11\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2390 \n Orlando v. Nassau Cty. Dist. Atty’s Off. \n\n\n\n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4 \n 5 \n 6 August Term, 2017 \n 7 No. 17‐2390 \n 8 \n 9 MARK ORLANDO, \n10 Petitioner‐Appellant, \n11 \n12 v. \n13 \n14 NASSAU COUNTY DISTRICT ATTORNEY’S OFFICE, \n15 Respondent‐Appellee.1 2 \n16 \n17 \n18 \n19 \n20 \n\n 1 The Clerk of Court is directed to amend the caption as set forth above. \n\n 2\n The Nassau County District Attorney’s Office has proceeded as respondent in \n this case, without objection. However, “§ 2254 petitioners challenging present \n physical custody [should] name either the warden or the chief state penal officer \n as a respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 450 n.18 (2004) (emphasis \n removed) (citing Rule 2(a) of the Rules Governing Section 2254 Cases in the United \n States District Courts; Advisory Committeeʹs Note on Rule 2(a), 28 U.S.C., pp. 469‐\n 470 (adopted in 1976) (stating that this is the rule in the “usual case”)). As such, \n the district court is directed on remand (and prior to issuing the writ) to substitute \n as respondent the warden of Orlando’s place of incarceration. \n\n \n\n\n\n\n 1 \n 2 \n 3 Appeal from the United States District Court \n 4 for the Eastern District of New York. \n 5 No. 11‐cv‐3992 — Edward R. Korman, Judge. \n 6 \n 7 \n 8 ARGUED: MAY 30, 2018 \n 9 DECIDED: FEBRUARY 11, 2019 \n10 \n11 Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.* \n12 \n13 \n14 Appeal from a judgment of the United States District Court for \n15 the Eastern District of New York (Korman, J.) denying Petitioner‐\n16 Appellant Mark Orlando’s petition for a writ of habeas corpus \n17 pursuant to 28 U.S.C. § 2254. Orlando was convicted of murder in the \n18 second degree in the Supreme Court of New York, Nassau County. \n19 During the homicide investigation, police detectives separately \n20 interrogated Orlando and his alleged accomplice. The latter \n21 confessed that he had shot the victim, but that Orlando had hired him \n22 to commit the murder. At Orlando’s trial, a detective was permitted \n23 to testify that the accomplice had stated that Orlando paid him to \n24 commit the murder. The accomplice, who was tried separately, did \n25 not testify at Orlando’s trial. Orlando contends that notwithstanding \n26 a limiting instruction by the trial court, the detective’s testimony \n27 violated the Confrontation Clause of the Sixth Amendment and that \n28 the state court’s ruling to the contrary constituted an objectively \n29 unreasonable application of clearly established federal law. We \n\n *\n Judge Michael P. Shea, United States District Court for the District of Connecticut, \n sitting by designation. \n\n\n\n 2\n\n \n\n\n\n\n 1 agree. Accordingly, we REVERSE the district court’s denial of \n 2 Orlando’s petition, and REMAND the cause to the district court with \n 3 instructions to grant the petition for a writ of habeas corpus. \n 4 \n 5 Judge SHEA dissents in a separate opinion. \n 6 \n 7 \n 8 JANE SIMKIN SMITH, Millbrook, NY, for \n 9 Petitioner‐Appellant. \n10 \n11 SARAH S. RABINOWITZ, ASSISTANT \n12 DISTRICT ATTORNEY (Tammy J. \n13 Smiley, Assistant District Attorney, on \n14 the brief), for Madeline Singas, Nassau \n15 County District Attorney, Mineola, \n16 New York, for Respondent‐Appellee. \n17 DRONEY, Circuit Judge: \n\n18 On Friday night, December 3, 2004, at approximately 8:45 p.m., \n\n19 in response to a 911 call, police officers from the Long Beach, New \n\n20 York, police department found the body of Bobby Calabrese. 3 \n\n21 Calabrese was lying face down next to his Infiniti automobile, which \n\n22 was still running. He had been shot in the back of his head at close \n\n\n\n\n 3 Long Beach is in Nassau County, New York, on Long Island. \n\n\n\n 3\n\n \n\n\n\n\n 1 range three times with a .44 caliber revolver. Calabrese had been a \n\n 2 “runner” for an illegal sports betting organization. \n\n 3 The following Thursday, Nassau County police detectives \n\n 4 interviewed Mark Orlando and Herva Jeannot, who were together the \n\n 5 night of Calabrese’s homicide. The detectives believed that Orlando \n\n 6 and Jeannot had been with Calabrese that night. Orlando and Jeannot \n\n 7 were questioned in separate rooms at the police station. Jeannot \n\n 8 confessed to shooting Calabrese, stating that Orlando hired Jeannot \n\n 9 to murder Calabrese to avoid paying a gambling debt to Calabrese. \n\n10 During his questioning, Orlando gave two different statements to the \n\n11 police but denied being involved in the murder. \n\n12 Orlando and Jeannot were charged with murder for their roles \n\n13 in Calabrese’s death and, in August 2005, a jury in the New York \n\n14 Supreme Court for Nassau County convicted Mark Orlando of \n\n15 murder in the second degree. The trial court had severed Orlando \n\n16 and Jeannot’s trials to avoid a Sixth Amendment Confrontation \n\n\n\n\n 4\n\n \n\n\n\n\n 1 Clause violation that could have arisen from Orlando’s jury hearing \n\n 2 Jeannot’s confession if Jeannot did not testify and thus could not be \n\n 3 cross‐examined about it.4 Severing the trials, however, did not avoid \n\n 4 violating Orlando’s right to confront the witnesses against him, as the \n\n 5 trial court allowed the jury to learn of Jeannot’s confession \n\n 6 implicating Orlando at Orlando’s trial and Jeannot did not testify at \n\n 7 Orlando’s trial. \n\n 8 ORLANDO’S TRIAL \n\n 9 I. Evidence Before the Jury of Jeannot’s Statement \n\n10 The state’s theory at trial was that Orlando paid Jeannot to \n\n11 murder Calabrese to extinguish a $17,000 gambling debt Orlando \n\n12 owed to Calabrese and that Orlando assisted Jeannot in the murder. \n\n13 The prosecution argued that Orlando lured Calabrese to the remote \n\n\n\n\n 4 Although the record on appeal does not reflect the trial court’s decision to sever \n the trials, both Orlando and the state describe the trial court as having \n (appropriately) severed Orlando and Jeannot’s trials “pursuant to” Bruton v. \n United States, 391 U.S. 123, 124 (1968). Pet. Br. at 2; Respondent’s Br. at 39. \n\n\n\n 5\n\n \n\n\n\n\n 1 location near Long Beach5 on the pretext of meeting to pay the $17,000 \n\n 2 debt, but that Orlando had previously agreed to pay Jeannot to shoot \n\n 3 Calabrese when Orlando met up with Calabrese. Orlando did not \n\n 4 dispute at trial that he was present for the murder, but contended that \n\n 5 he had intended merely to pay Calabrese; he did not expect Jeannot \n\n 6 (who was a friend of Orlando’s and a passenger in the car Orlando \n\n 7 drove that night) to shoot Calabrese and then take the gambling \n\n 8 money for himself. \n\n 9 During his police interrogation, Orlando gave two statements \n\n10 to Nassau County Police Detectives. Detectives McHugh and \n\n11 McGinn jointly interviewed Orlando when he gave his first statement, \n\n12 and Detective McHugh testified to this statement at Orlando’s trial. \n\n13 According to McHugh, Orlando first stated that he and Jeannot were \n\n14 good friends and coworkers at Professional Credit Services, a Long \n\n\n\n 5\n Although officers from the Long Beach police department responded to the \n report of the homicide, the homicide occurred in Island Park, which is a town \n adjacent to Long Beach. \n\n\n\n 6\n\n \n\n\n\n\n 1 Island debt collection agency. Orlando regularly gambled on sports. \n\n 2 About one month before the murder, another coworker introduced \n\n 3 Orlando to Calabrese. Orlando began to place bets through Calabrese \n\n 4 and soon won $28,465. \n\n 5 Orlando’s winning streak with Calabrese ended, and Orlando \n\n 6 lost $17,800 over the course of two weeks. At that point, Orlando \n\n 7 stopped betting with Calabrese. But Orlando still owed Calabrese \n\n 8 $17,000, and he arranged to pay Calabrese on December 3. \n\n 9 In that first statement to the Nassau County detectives, Orlando \n\n10 indicated that he and Jeannot went together in Orlando’s wife’s car to \n\n11 pay Calabrese, did so, and otherwise had an uneventful evening. \n\n12 After Orlando paid Calabrese the $17,000, he and Jeannot made \n\n13 several stops: at a Suzuki car dealership to pick up a check, at an ATM, \n\n14 and at Orlando’s friend’s house to look at some new construction. \n\n15 Orlando then dropped off Jeannot at Jeannot’s home, around 10:30 \n\n16 p.m. \n\n\n\n\n 7\n\n \n\n\n\n\n 1 After Detective McHugh finished testifying, Detective McGinn \n\n 2 took the stand and confirmed much of the substance of Orlando’s first \n\n 3 statement. According to McGinn, after Orlando signed a written \n\n 4 statement summarizing that version of the night’s events, Detectives \n\n 5 McGinn and McHugh left the interview room. McHugh went to \n\n 6 speak with Jeannot. Approximately three hours after leaving \n\n 7 Orlando’s interview room, McGinn returned to speak further with \n\n 8 Orlando. \n\n 9 Before Detective McGinn had begun testifying at Orlando’s \n\n10 trial (and out of the presence of the jury), counsel for Orlando had \n\n11 objected, on hearsay and Confrontation Clause grounds, to the \n\n12 admission of McGinn’s anticipated testimony recounting Jeannot’s \n\n13 statement as to Orlando’s involvement in the murder. The trial court \n\n14 denied the objection, ruling that “this information that the People are \n\n15 intending to offer in their direct case is not being offered for the truth \n\n16 of the contents of the statement but rather to give a clear picture to the \n\n\n\n\n 8\n\n \n\n\n\n\n 1 jury [of] what was going on during the interrogation of [Orlando].” \n\n 2 T. 166–67. \n\n 3 After Orlando’s objection was denied, the prosecution asked \n\n 4 Detective McGinn about “the circumstances under which [McGinn] \n\n 5 resumed speaking with” Orlando. T. 620.6 McGinn testified that he \n\n 6 had learned from Detective McHugh that Jeannot was making \n\n 7 inculpatory statements about the murder. “I knew Detective \n\n 8 McHugh was in talking to Mr. Herva Jeannot,” McGinn testified. Id. \n\n 9 “I believe,” he told the jury, “that Herva Jeannot was relaying some \n\n10 of the events that really took place that night [of the murder].” Id. \n\n11 McGinn then testified that he re‐entered Orlando’s interview \n\n12 room. Id. “I went back in and I told Mr. Orlando that Detective \n\n13 McHugh was over there talking to Herva [Jeannot] and he was \n\n14 probably giving us . . . other facts that happened that night, the truth \n\n\n\n\n 6 Citations to the trial transcript are abbreviated “T. __” throughout this opinion. \n\n\n\n 9\n\n \n\n\n\n\n 1 as to what happened that night.” Id. “Now, would be the time . . . to \n\n 2 tell us what was going on.” Id. \n\n 3 According to McGinn’s testimony, Orlando responded, “[y]ou \n\n 4 don’t understand,” and McGinn left the interview room. T. 620. \n\n 5 McGinn testified that he returned a few minutes later. According to \n\n 6 McGinn, “[a]gain, I explained to Mr. Orlando that Herva Jeannot was, \n\n 7 in fact, giving up . . . what we felt were truer versions of the events of \n\n 8 Bobby Calabrese’s murder. That we had a videotape of the spot the \n\n 9 meeting took place. That the meeting did not take place where \n\n10 [Orlando] originally told us it had taken place. I told [Orlando] that \n\n11 Herva Jeannot had given up where the gun was and that the \n\n12 defendant should . . .[,] if he wants his version of the story told[,] . . . \n\n13 tell us the truth at this point.” T. 621. \n\n14 Orlando initially responded, again, “you don’t understand,” \n\n15 but eventually stated, without elaboration, that he was afraid (of \n\n16 Jeannot) for his family. T. 621–23. McGinn testified that he again left \n\n\n\n\n 10\n\n \n\n\n\n\n 1 the interview room and that he came back around an hour later. He \n\n 2 then testified, over the renewed objection of Orlando’s attorney, to the \n\n 3 following: “I told [Orlando] . . . that Herva Jeannot was, in fact, talking \n\n 4 to the other detectives. [Jeannot] had given a statement and that he \n\n 5 had implicated himself in the murder. [Jeannot] said that he was the \n\n 6 murderer, but that Mark Orlando had paid him to do it.” T. 623–24. \n\n 7 At this point, the trial court gave the jury a limiting instruction. \n\n 8 The trial court stated, “Ladies and gentlemen, you have been \n\n 9 permitted to hear testimony about remarks made to the defendant by \n\n10 Detective McGinn about statements allegedly made by Herva \n\n11 Jeannot. You’re to consider this testimony only when considering the \n\n12 circumstances under which the defendant himself may have made \n\n13 statements and for no other purposes.” T. 624. \n\n14 The trial court then instructed the jury “to completely disregard \n\n15 any statement allegedly made by Herva Jeannot when considering \n\n16 evidence against the defendant. . . . You are not to concern yourself \n\n\n\n\n 11\n\n \n\n\n\n\n 1 with whether Herva Jeannot did or did not make any statements to \n\n 2 the police, if he did, what those statement[s] may have been or \n\n 3 whether or not they were true.”7 Id. \n\n 4 McGinn then resumed testifying. He testified that, after \n\n 5 learning of Jeannot’s statement implicating Orlando in the murder, \n\n 6 Orlando changed his account of the evening’s events. Orlando stated \n\n 7 that when he and Jeannot met Calabrese that night, Orlando paid \n\n 8 Calabrese and then Jeannot unexpectedly shot Calabrese, taking the \n\n 9 cash.8 T. 676–82. According to Orlando, he and Jeannot then drove \n\n10 away, and Jeannot threatened to harm Orlando’s (pregnant) wife if \n\n\n\n\n 7\n During its final charge to the jury, the trial court gave substantially the same \n limiting instruction as to McGinn’s testimony regarding Jeannot’s statement as it \n had given earlier in the trial. \n\n 8 Orlando first relayed this second version of events to McGinn. Then, McGinn left \n the room, and Nassau Country Detective Cerighino, who had not been present for \n the questioning of Orlando, came into the room. Cerighino reduced Orlando’s \n second account to writing. Cerighino wrote the statement based upon what \n Orlando told him, and Orlando signed it. The written statement is substantially \n similar to McGinn’s account at trial of the second version of events that Orlando \n gave to McGinn. \n\n\n\n 12\n\n \n\n\n\n\n 1 Orlando were to tell anyone about the homicide. T. 682. Jeannot told \n\n 2 Orlando that Calabrese was not the first person Jeannot had killed \n\n 3 and that Calabrese would not be the last. Id. As a result, according to \n\n 4 Orlando, he then made the stops at the car dealership and elsewhere \n\n 5 because he wanted people and cameras to observe that Jeannot was \n\n 6 with him. In addition, at some point, Jeannot told Orlando to stop on \n\n 7 a bridge, and Jeannot then threw the gun he used to kill Calabrese \n\n 8 into the water. \n\n 9 II. The Prosecution’s Summation \n\n10 The prosecution argued in its summation to the jury that \n\n11 Orlando had paid Jeannot to murder Calabrese. The prosecution also \n\n12 specifically called to the jury’s attention that “Detective McGinn \n\n13 leaves [Orlando’s interrogation room], comes back a little later, . . . \n\n14 [and] Detective McGinn finally says, look, [Jeannot’s] giving it up. \n\n15 [Jeannot’s] telling us everything. . . . He’s telling us he did the \n\n16 shooting and you paid him.” T. 894–95. \n\n\n\n\n 13\n\n \n\n\n\n\n 1 Apart from Jeannot’s statement, there was little evidence to \n\n 2 support the state’s theory. The prosecution showed that, after the \n\n 3 murder, investigators found in Jeannot’s home five one‐hundred \n\n 4 dollar bills and found in Orlando’s home ten one‐hundred dollar bills, \n\n 5 all of which had a large‐portrait image of Benjamin Franklin. The \n\n 6 prosecution argued, “How do you know [Orlando] paid [Jeannot?] \n\n 7 Why else would [Jeannot] do it, if not for $500, those five Ben \n\n 8 Franklins hundred dollar bills . . . a week after the execution murder. \n\n 9 Just so happens the defendant has ten of his own [$100 bills] back in \n\n10 [his home]. Of course [Orlando] paid [Jeannot]. [Jeannot’s] not doing \n\n11 it as a favor.” T. 876. \n\n12 The prosecution again returned to its “murder‐for‐hire” theory \n\n13 later in its closing argument, stating that “[Orlando] wasn’t upset by \n\n14 watching Bobby die. That was what was supposed to happen. That \n\n15 is what he paid [Jeannot] to do, to do his dirty work for him. Couldn’t \n\n16 do it himself.” T. 885. The prosecution suggested that Orlando paid \n\n\n\n\n 14\n\n \n\n\n\n\n 1 Jeannot when the pair briefly stopped at Orlando’s house after the \n\n 2 murder. T. 890. \n\n 3 III. Verdict and Sentence \n 4 \n 5 The jury found Orlando guilty of murder in the second degree. \n\n 6 Orlando was sentenced to an indeterminate term of 25 years to life in \n\n 7 prison on August 18, 2005. He is currently serving his sentence. \n\n 8 Jeannot was also convicted of the murder in a separate trial. \n\n 9 STATE COURT APPELLATE PROCEEDINGS \n\n10 Orlando appealed his conviction to the New York Supreme \n\n11 Court, Appellate Division. People v. Orlando, 61 A.D.3d 1001 (N.Y. \n\n12 App. Div. 2d Dep’t 2009). Orlando contended that Detective \n\n13 McGinn’s testimony as to Jeannot’s statement was inadmissible \n\n14 hearsay and also violated Orlando’s right to confront witnesses \n\n15 through cross examination, as guaranteed by the Sixth Amendment \n\n16 of the United States Constitution and incorporated against the states \n\n17 by the Fourteenth Amendment. Appellant’s Br. at 70–77, People v. \n\n\n\n\n 15\n\n \n\n\n\n\n 1 Orlando, No. 2005‐08854 (N.Y. App. Div. 2d Dep’t Mar. 23, 2008); \n\n 2 Orlando, 61 A.D.3d at 1001–03. \n\n 3 The Appellate Division rejected Orlando’s argument in a single \n\n 4 sentence, stating: “The [trial] court properly instructed the jury that \n\n 5 the testimony was admitted for the limited purpose of explaining the \n\n 6 detectiveʹs actions and their effect on the defendant, and not for the \n\n 7 truth of the codefendantʹs statement. ” Id. (quoting People v. Ewell, 12 \n\n 8 A.D.3d 616, 617 (N.Y. App. Div. 2d Dep’t 2004)) (internal quotation \n\n 9 marks omitted).9 The Appellate Division also cited Tennessee v. Street, \n\n10 471 U.S. 409 (1985), for its conclusion that the trial court did not err in \n\n11 admitting Jeannot’s statement through Detective McGinn. Id. \n\n\n\n\n 9 Although the Appellate Division described Jeannot as a “codefendant,” as is \n mentioned in the above text, he was tried and convicted at a separate trial after the \n Bruton ruling severing the trials. \n\n\n\n 16\n\n \n\n\n\n\n 1 The New York Court of Appeals subsequently denied Orlando \n\n 2 leave to appeal, thereby rendering the Appellate Division’s decision \n\n 3 final. People v. Orlando, 981 N.E.2d 291, 291 (N.Y. 2012).10 \n\n 4 SECTION 2254 PROCEEDING IN THE DISTRICT COURT \n 5 \n 6 Orlando, proceeding pro se, filed a petition for a writ of habeas \n\n 7 corpus pursuant to 28 U.S.C. § 2254 in the United States District Court \n\n 8 for the Eastern District of New York. As in his direct appeal, Orlando \n\n 9 argued that McGinn’s testimony regarding Jeannot’s statement was \n\n10 inadmissible hearsay and violated his Confrontation Clause right. \n\n11 The district court denied the writ.11 \n\n12 The district court identified the following testimony by McGinn \n\n13 as at issue in the Confrontation Clause analysis: \n\n\n\n Following his unsuccessful state appeals, Orlando filed two unsuccessful coram \n 10\n\n nobis petitions in state court alleging ineffective assistance of appellate counsel. See \n People v. Orlando, 85 A.D.3d 823 (N.Y. App. Div. 2d Dep’t 2011); People v. Orlando, \n 98 A.D.3d 691 (N.Y. App. Div. 2d Dep’t 2012). There is no dispute that Orlando \n has properly exhausted his Confrontation Clause claim for federal habeas review. \n\n 11 Orlando pursues only his Confrontation Clause challenge on appeal. See \n generally Pet. Br. \n\n\n\n 17\n\n \n\n\n\n\n 1 I left the [interrogation] room at about 6:50 [AM]. I went \n 2 back into the room at about ten minutes to eight. About 7:50 \n 3 in the morning. And I told [Orlando] at this point that \n 4 Herva Jeannot was, in fact, talking to the other detectives. \n 5 He had given a statement and he had implicated himself in \n 6 the murder. He said that he was the murderer, but that \n 7 Mark Orlando had paid him to do it. \n 8 \n 9 Orlando v. Nassau Cty. Dist. Atty’s Office, 246 F. Supp. 3d 569, 572–73 \n\n10 (E.D.N.Y. 2017).12 \n\n11 Relying principally on Tennessee v. Street, 471 U.S. 409 (1985), \n\n12 and United States v. Logan, 419 F.3d 172 (2d Cir. 2005), the district court \n\n13 rejected Orlando’s Confrontation Clause argument. Orlando, 246 F. \n\n14 Supp. 3d at 571–76. The district court reasoned that Jeannot’s \n\n15 statement was not offered against Orlando for its truth but only \n\n16 “provided context for explaining why Orlando altered his [original] \n\n\n\n\n 12 The district court did not recount or discuss the portion of McGinn’s testimony \n to the jury that vouched for the truth of Jeannot’s statement. T. 620 (“Herva \n Jeannot was relaying some of the events that really took place that night . . . the \n truth as to what happened that night.”); T. 621 (“I explained to Mr. Orlando that \n Herva Jeannot was, in fact, giving up what we felt were truer versions of the events \n of Bobby Calabrese’s murder.”) (emphasis added). That aspect of McGinn’s \n testimony is discussed later in this opinion. \n\n\n\n 18\n\n \n\n\n\n\n 1 exculpatory story” to admit that he had in fact been present for the \n\n 2 murder but that Jeannot had unexpectedly committed it. Id. at 574. \n\n 3 The district court also held that any error was harmless. Id. at 575–76. \n\n 4 The district court issued a certificate of appealability as to \n\n 5 Orlando’s Confrontation Clause argument. Id. at 578. Orlando then \n\n 6 timely filed a notice of appeal. \n\n 7 DISCUSSION \n\n 8 Orlando argues that: (1) without his ability to cross‐examine \n\n 9 Jeannot, McGinn’s testimony recounting Jeannot’s statement violated \n\n10 Orlando’s Confrontation Clause right; (2) the Appellate Division’s \n\n11 ruling to the contrary was “objectively unreasonable;” and (3) the \n\n12 erroneous admission of the testimony was not harmless. We agree. \n\n13 Accordingly, we reverse the district court’s denial of Orlando’s \n\n14 petition. \n\n15 \n\n16 \n\n\n\n\n 19\n\n \n\n\n\n\n 1 I. Standard of Review and Section 2254 Framework \n 2 \n 3 Under 28 U.S.C. § 2254, “a person in custody pursuant to the \n\n 4 judgment of a State court” may petition a district court for a writ of \n\n 5 habeas corpus “on the ground that he is in custody in violation of the \n\n 6 Constitution or laws or treaties of the United States.” Id. § 2254(a). \n\n 7 We review de novo a district court’s denial of a petition for a writ of \n\n 8 habeas corpus pursuant to 28 U.S.C. § 2254. Lynch v. Dolce, 789 F.3d \n\n 9 303, 311–12 (2d Cir. 2015). \n\n10 A petition for a writ of habeas corpus “shall not be granted with \n\n11 respect to any claim that was adjudicated on the merits in State court \n\n12 proceedings unless the adjudication of the claim . . . resulted in a \n\n13 decision that was contrary to, or involved an unreasonable \n\n14 application of, clearly established Federal law, as determined by the \n\n15 Supreme Court of the United States.” § 2254(d). “A state court \n\n16 decision is an ‘unreasonable application’ of clearly established federal \n\n17 law ‘if the state court identifies the correct governing legal principle \n\n\n\n\n 20\n\n \n\n\n\n\n 1 from [the Supreme] Courtʹs decisions but unreasonably applies that \n\n 2 principle to the facts of the prisoner’s case.’” Howard v. Walker, 406 \n\n 3 F.3d 114, 122 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, \n\n 4 413 (2000)). However, that bar is not reached where “fairminded \n\n 5 jurists could disagree on the correctness of the state court’s decision.” \n\n 6 Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks \n\n 7 and citation omitted). \n\n 8 II. The Confrontation Clause Violation \n\n 9 The Sixth Amendment’s Confrontation Clause provides that \n\n10 “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to \n\n11 be confronted with the witnesses against him.” U.S. Const. amend. \n\n12 VI. “‘The crux of this right is that the government cannot introduce \n\n13 at trial” an out‐of‐court witness’s “statements containing accusations \n\n14 against the defendant unless the accuser takes the stand against the \n\n15 defendant and is available for cross examination.’” United States v. \n\n16 Jass, 569 F.3d 47, 55 (2d Cir. 2009) (quoting Ryan v. Miller, 303 F.3d 231, \n\n\n\n\n 21\n\n \n\n\n\n\n 1 247 (2d Cir. 2002)) (internal quotations omitted). To implicate the \n\n 2 Confrontation Clause, the statement must be used to prove the truth \n\n 3 of the matter asserted, and the statement must be “testimonial.” Davis \n\n 4 v. Washington, 547 U.S. 813, 821–22 (2006) (citing Crawford v. \n\n 5 Washington, 541 U.S. 36, 51 (2004)). In other words, it must be \n\n 6 “testimonial hearsay.” Id. at 823. \n\n 7 Out‐of‐court statements may have a proper purpose other than \n\n 8 being considered for their truth. The Supreme Court and this Circuit \n\n 9 have acknowledged that a trial court’s instruction to a jury to consider \n\n10 only for a limited, nonhearsay purpose the non‐testifying witness’s \n\n11 out‐of‐court statement “is generally sufficient to eliminate . . . \n\n12 Confrontation Clause concern[s].” Jass, 569 F.3d at 55 (citing \n\n13 Richardson v. Marsh, 481 U.S. 200, 206 (1987)). That is because “[t]he \n\n14 law ‘almost invariabl[y] assum[es]’ that jurors follow such limiting \n\n15 instructions.” Id. (quoting Richardson, 481 U.S. at 206). \n\n\n\n\n 22\n\n \n\n\n\n\n 1 “Nevertheless, in Bruton v. United States, . . . the Supreme Court \n\n 2 identified an exception to th[e] assumption” that jurors follow \n\n 3 limiting instructions. Id. In Bruton v. United States, 391 U.S. 123, 124 \n\n 4 (1968), the defendant Bruton and his codefendant were tried jointly \n\n 5 for armed postal robbery. A postal inspector testified that the \n\n 6 codefendant confessed to him that Bruton and the codefendant \n\n 7 committed the robbery together. Id. The codefendant did not take \n\n 8 the stand, so he could not be cross‐examined. Id. at 128. The district \n\n 9 court provided a limiting instruction to the jury that “although [the \n\n10 codefendant’s] confession was competent evidence against [the \n\n11 codefendant] it was inadmissible hearsay against [Bruton] and \n\n12 therefore had to be disregarded in determining [Bruton’s] guilt or \n\n13 innocence.” Id. at 125. \n\n14 The Supreme Court reversed Bruton’s conviction, holding that \n\n15 because his codefendant was not subject to cross examination and \n\n16 “because of the substantial risk that the jury, despite instructions to \n\n\n\n\n 23\n\n \n\n\n\n\n 1 the contrary, looked to the incriminating extrajudicial statements in \n\n 2 determining [Bruton’s] guilt,” admission of the codefendant’s \n\n 3 confession in front of Bruton’s jury violated Bruton’s “right of cross‐\n\n 4 examination secured by the Confrontation Clause of the Sixth \n\n 5 Amendment.” Id. at 126. \n\n 6 The Court further explained that “[n]ot only are [alleged \n\n 7 accomplices’] incriminations devastating to the defendant but their \n\n 8 credibility is inevitably suspect, a fact recognized when accomplices \n\n 9 do take the stand and the jury is instructed to weigh their testimony \n\n10 carefully given the recognized motivation to shift blame onto others. \n\n11 The unreliability of such evidence is intolerably compounded when \n\n12 the alleged accomplice . . . does not testify and cannot be tested by \n\n13 cross‐examination.” Id. at 136. \n\n14 As a result, when a non‐testifying witness’s confession \n\n15 “expressly” implicates the defendant, “the risk that the jury will not, \n\n16 or cannot, follow instructions [to limit its consideration of the \n\n\n\n\n 24\n\n \n\n\n\n\n 1 evidence for a proper purpose] is so great, and the consequences of \n\n 2 failure so vital to the defendant, that the practical and human \n\n 3 limitations of the jury system cannot be ignored.” Richardson, 481 U.S. \n\n 4 at 207–08 (quoting Bruton, 391 U.S. at 135–36). When a jury hears such \n\n 5 express incriminations, even if given a “clear” limiting instruction, \n\n 6 “the effect is the same as if there had been no instruction at all.” \n\n 7 Bruton, 391 U.S. at 137. \n\n 8 Although the non‐testifying witness in Bruton was a \n\n 9 codefendant in a joint trial, Bruton applies equally to the testimonial \n\n10 and incriminating statements of non‐testifying accomplices tried \n\n11 separately. See Crawford, 541 U.S. at 57, 69 (stating that testimonial \n\n12 statements admitted without the opportunity to cross‐examine the \n\n13 declarant violate the Confrontation Clause and referring to Bruton as \n\n14 barring “accomplice confessions where the defendant had no \n\n15 opportunity to cross‐examine”); Tennessee v Street, 471 U.S. 409, 411, \n\n16 414–15 (1985) (recognizing that if the jury had been asked to infer that \n\n\n\n\n 25\n\n \n\n\n\n\n 1 the confession of the non‐testifying accomplice—who was tried \n\n 2 separately—proved that the defendant participated in the murder, \n\n 3 “Confrontation Clause concerns would have been implicated”). \n\n 4 Here, the Appellate Division correctly acknowledged that, \n\n 5 absent cross‐examination of Jeannot, admission of his facially \n\n 6 incriminating statement risked violating the Confrontation Clause, as \n\n 7 was recognized in Bruton. 13 People v. Orlando, 61 A.D.3d at 1002. \n\n 8 However, the Appellate Division reasoned that the jury would use \n\n 9 this evidence only to “explain the detective’s actions and their effect” \n\n10 on Orlando—that effect presumably being the reason why Orlando \n\n11 changed his account of the events of the night of the murder. Id. \n\n\n\n\n 13 Although the Appellate Division did not cite Bruton or articulate its holding, a \n state reviewing court need not to do so in order for it to be considered to have \n applied the constitutional principles set forth in Supreme Court precedent. See, \n e.g., Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (“[A] state court need not even be \n aware of our precedents, so long as neither the reasoning nor the result of the state‐\n court decision contradicts them.”) (internal quotation marks and citation omitted). \n The Appellate Division did cite Tennessee v. Street, 471 U.S. 409 (1985), which is \n discussed later in this opinion. \n\n\n\n 26\n\n \n\n\n\n\n 1 That conclusion by the Appellate Division was an unreasonable \n\n 2 application of Bruton. McGinn led the jury to believe that Jeannot had \n\n 3 actually made the statement McGinn recounted, and that statement \n\n 4 expressly inculpated Orlando as Jeannot’s accomplice in the murder. \n\n 5 Bruton plainly instructs that the jury could not be presumed to \n\n 6 disregard Jeannot’s statement for its truth, even with a limiting \n\n 7 instruction.14 \n\n 8 A. Jeannot Was an Out‐of‐Court Witness \n\n 9 The state argues in its brief that “[n]either McGinn nor \n\n10 McHugh ever testified that Jeannot actually made the statements at \n\n11 issue,” Respondent’s Br. at 29–30; in other words, that Jeannot was \n\n12 not an out‐of‐court “witness” within the meaning of the \n\n13 Confrontation Clause, see Davis, 547 U.S. at 821–22. And so, the state \n\n\n\n 14 In addition, there is no doubt that Jeannot’s statement was “testimonial.” See \n Davis, 547 U.S. at 821–22 (holding that statements made “in the course of police \n interrogation” are testimonial when made under “circumstances objectively \n indicat[ing] . . . that the primary purpose of the interrogation [was] to establish or \n prove past events potentially relevant to later criminal prosecution”). \n\n\n\n 27\n\n \n\n\n\n\n 1 contends, the situation here was no different than a jury merely \n\n 2 hearing that an investigator had used deception to elicit a confession. \n\n 3 The state is incorrect; of course the prosecution led the jury to \n\n 4 believe that Jeannot had actually made the statement McGinn \n\n 5 recounted. McGinn testified that, “I knew Detective McHugh was in \n\n 6 talking to Mr. Herva Jeannot,” and that, “I believe that Herva Jeannot \n\n 7 was relaying some of the events that really took place that night.” T. \n\n 8 620. The prosecution never disavowed that Jeannot had made the \n\n 9 statement, and it even recounted the statement in its summation. And \n\n10 that very statement was the reason for the Bruton severance in the first \n\n11 place. Thus, Jeannot was indeed an out‐of‐court “witness” subject to \n\n12 the cross‐examination requirements of the Confrontation Clause.15 \n\n\n\n\n 15\n A witness need only recount the critical substance of the out‐of‐court statement \n to implicate the Confrontation Clause. See Ryan v. Miller, 303 F.3d 231, 248–49 (2d \n Cir. 2002) (granting section 2254 petition due to non‐harmless Confrontation \n Clause violation, stating that “[i]f the substance of the prohibited testimony is \n evident even though it was not introduced in the prohibited form, the testimony \n is still inadmissible,” and collecting cases); Ocampo v. Vail, 649 F.3d 1098, 1108–11 \n (9th Cir. 2011) (“Supreme Court law . . . clearly establishe[s] that testimony from \n\n 28\n\n \n\n\n\n\n 1 B. The Admission of Jeannot’s Statement Was Clearly Barred \n 2 by Bruton \n 3 \n 4 With the jury having heard this expressly incriminating \n\n 5 statement from Jeannot, the only reasonable conclusion was that the \n\n 6 Confrontation Clause was violated under Bruton. The risk that the \n\n 7 jury would consider Jeannot’s statement for its truth was simply too \n\n 8 great to allow the jury to hear it, absent cross‐examination of Jeannot. \n\n 9 Indeed, “the overwhelming probability” of jurors’ inability to “thrust \n\n10 out of mind” express “testimony that ‘the defendant helped me \n\n11 commit the crime’ . . . is the foundation of Bruton.” Richardson, 481 U.S. \n\n12 at 208 (emphasis added); see also Bruton, 391 U.S. at 129 (“The \n\n13 Government should not have the windfall of having the jury be \n\n14 influenced by evidence against a defendant which, as a matter of law, \n\n15 they should not consider but which they cannot put out of their \n\n16 minds.”) (internal quotation marks and citation omitted) (overruling \n\n\n\n which one could determine the critical content of the out‐of‐court statement [is] \n sufficient to trigger Confrontation Clause concerns.”).\n\n\n\n 29\n\n \n\n\n\n\n 1 Delli Paoli v. United States, 352 U.S. 232 (1957), and adopting the \n\n 2 reasoning of the dissent in that decision). \n\n 3 The Confrontation Clause violation here is even clearer than in \n\n 4 Bruton. Detective McGinn did not merely recount Jeannot’s \n\n 5 confession implicating Orlando; he also vouched for its veracity. \n\n 6 McGinn testified, “I believe that Herva Jeannot was relaying some of \n\n 7 the events that really took place that night . . . the truth as to what \n\n 8 happened that night,” T. 620 (emphasis added), and “I explained to \n\n 9 Mr. Orlando that Herva Jeannot was, in fact, giving up . . . what we felt \n\n10 were truer versions of the events of Bobby Calabrese’s murder.”16 T. \n\n11 621 (emphasis added). That testimony by McGinn made it even less \n\n12 likely than in Bruton that the jury would have obeyed the trial court’s \n\n13 limiting instruction. See, e.g., United States v. Forrester, 60 F.3d 52, 63–\n\n\n\n\n We acknowledge that the latter statement could possibly be read as McGinn \n 16\n\n explaining only to Orlando rather than to the jury that McGinn and McHugh \n believed Jeannot was telling the truth about Orlando’s involvement the murder. \n However, there was no such ambiguity with regard to McGinn’s first statement \n that he believed Jeannot was relaying what “really took place that night.” T. 620. \n\n\n\n 30\n\n \n\n\n\n\n 1 64 (2d Cir. 1995) (discussing the prejudicial impact of government \n\n 2 agents vouching for witnesses).\n\n 3 Likewise, the prosecution’s summation further undermined \n\n 4 any possible effectiveness of the limiting instruction when it \n\n 5 reminded the jury of its murder‐for‐hire theory three times and \n\n 6 specifically called to its attention McGinn’s testimony that he told \n\n 7 Orlando, “[Jeannot’s] telling us everything . . . . He’s telling us he did \n\n 8 the shooting and you paid him.” T. 895. But, as discussed below with \n\n 9 regard to the harmless error analysis, the evidence—other than \n\n10 Jeannot’s statement—that Orlando had hired Jeannot to murder \n\n11 Calabrese, was weak. Thus, the likelihood that the jury credited \n\n12 Jeannot’s statement was higher even than in Bruton, where the \n\n13 Supreme Court did not suggest that the prosecution had undermined \n\n14 the limiting instruction.17 \n\n\n\n 17 We note also that the limiting instruction was decidedly unclear. The trial court \n instructed the jury to consider the testimony at issue when considering “the \n circumstances under which Orlando made any statements.” T. 624. McGinn, \n however, had just told the jury that the “circumstances” which led him to resume \n\n 31\n\n \n\n\n\n\n 1 In opposing Orlando’s petition, the state relies primarily on the \n\n 2 Supreme Court’s decision in Tennessee v. Street, 471 U.S. 409 (1985). In \n\n 3 Street, the defendant, Street, was tried for murder separately from his \n\n 4 alleged accomplice, Peele. Id. at 411. Street had confessed during an \n\n 5 interview with police to participating in a burglary and the murder \n\n 6 with Peele. Id. \n\n 7 In its case‐in‐chief, the state introduced Street’s confession. Id. \n\n 8 Street then took the stand during his defense case, and he testified \n\n 9 that the police had coerced his confession and that he had not been \n\n10 involved in the murder. Id. Street claimed that the police had shown \n\n11 him Peele’s confession during his interview and forced Street to give \n\n12 the same account as Peele. Id. \n\n13 The trial court then permitted the state to introduce in its \n\n14 rebuttal case Peele’s confession through the testimony of Sheriff \n\n\n\n interrogating Orlando were that “Herva Jeannot was relaying some of the events \n that really took place that night.” T. 620. By contrast, even in Bruton, the jury \n instructions were “concededly clear.” Bruton, 391 U.S. at 137. \n\n\n\n 32\n\n \n\n\n\n\n 1 Papantoniou, the police officer who had taken it. Id. at 411–12. The \n\n 2 state showed the obvious differences between the two statements to \n\n 3 discredit Street’s testimony that his confession had been coerced and \n\n 4 that the statements’ claimed similarities demonstrated the coercion. \n\n 5 Id. at 412. Both at the time the police officer recounted Peele’s \n\n 6 statement and in its jury instructions, the trial court instructed the jury \n\n 7 that Peele’s statement was admitted not for its truth, but rather only \n\n 8 to rebut Street’s contention that his confession was coerced. Id. Peele \n\n 9 did not testify at Street’s trial and, thus, could not be cross‐examined \n\n10 about his statement. \n\n11 The Supreme Court affirmed Street’s murder conviction. Id. at \n\n12 417. According to the Court, “[t]he nonhearsay aspect of Peeleʹs \n\n13 confession—not to prove what happened at the murder scene but to \n\n14 prove what happened when respondent confessed—raises no \n\n15 Confrontation Clause concerns. The Clauseʹs fundamental role in \n\n16 protecting the right of cross‐examination . . . was [thus] satisfied by \n\n\n\n\n 33\n\n \n\n\n\n\n 1 Sheriff Papantoniouʹs presence on the stand.” Id. at 414. After all, the \n\n 2 Supreme Court stated, “[i]f [Street’s] counsel doubted that [the \n\n 3 accomplice’s] confession was accurately recounted, he was free to \n\n 4 cross‐examine the Sheriff. By cross‐examination [Street’s] counsel \n\n 5 could also challenge Sheriff Papantoniou’s testimony that he did not \n\n 6 read from Peeleʹs statement and direct respondent to say the same \n\n 7 thing. In short, the State’s rebuttal witness against [Street] was not \n\n 8 Peele, but Sheriff Papantoniou.” Id. \n\n 9 The Court in Street went on to acknowledge that its conclusion \n\n10 depended on the “crucial assumption” that the jurors followed the \n\n11 trial court’s limiting instructions. Id. at 415. There, as in Bruton, \n\n12 Street’s accomplice had expressly implicated him in the crime. But \n\n13 unlike in Bruton, Street had placed the state in the position of not \n\n14 being able to effectively challenge Street’s testimony that his \n\n15 confession was coerced. And “the State’s most important piece of \n\n16 substantive evidence was [Street’s] confession.” Id. The only \n\n\n\n\n 34\n\n \n\n\n\n\n 1 available way to rebut Street’s contention of a coerced confession was \n\n 2 to compare Peele’s confession with Street’s; if they were different, that \n\n 3 would tend to show that Street’s coercion testimony was not credible. \n\n 4 See id. at 415–16. And so, if the trial court in Street had not allowed the \n\n 5 accomplice’s confession to be brought before the jury, that “would \n\n 6 have been at odds with the Confrontation Clause’s very mission—to \n\n 7 advance the accuracy of the truth‐determining process.” Id. at 415. \n\n 8 Thus, the Court in Street found, unlike in Bruton, that there were \n\n 9 “no alternatives [but allowing admission of the accomplice’s \n\n10 confession] that would have both assured the integrity of the trial’s \n\n11 truth‐seeking function and eliminated the risk of the jury’s improper \n\n12 use of evidence.” Id. \n\n13 Notably, in its conclusion, the Court in Street also took care to \n\n14 emphasize that the “prosecutor’s questions and closing argument” \n\n15 had done nothing to distract the jury from the accomplice confession’s \n\n16 “distinctive and limited purpose.” Id. at 417. It was only “in this \n\n\n\n\n 35\n\n \n\n\n\n\n 1 context” that the trial judge’s instructions were sufficient to prevent a \n\n 2 Confrontation Clause violation. Id. (emphasis added). \n\n 3 This case is very different from Street. The prosecution argued \n\n 4 that Jeannot’s statement merely showed “context” for why Orlando \n\n 5 changed his statement. But Jeannot’s statement went far beyond any \n\n 6 limited value in showing why Orlando changed his account of what \n\n 7 happened that night. The prosecution elicited testimony from \n\n 8 Detective McGinn that Jeannot had actually made the incriminating \n\n 9 statement, and McGinn vouched for Jeannot’s account. In its \n\n10 summation, the prosecution also repeated Jeannot’s statement, and \n\n11 pressed its murder‐for‐hire theory. \n\n12 Moreover, the prosecution’s need for the purported “context” \n\n13 was of little importance as compared to the need in Street. Orlando’s \n\n14 changing his account of the homicide was no different than many \n\n15 investigations when suspects make a series of statements; absent the \n\n16 substance of Jeannot’s statement, the jury still could have learned that \n\n\n\n\n 36\n\n \n\n\n\n\n 1 after several hours of interrogation, Orlando revised his story and \n\n 2 placed himself at the scene of the murder and admitted to lying about \n\n 3 his original account. That approach would have significantly \n\n 4 advanced the prosecution’s case without a critical narrative gap and, \n\n 5 accordingly, the “truth‐seeking function” of the trial would not have \n\n 6 been impeded in a way comparable to Street. See id. at 415–16. Nor \n\n 7 did Orlando take the stand at his trial, and so the credibility of his \n\n 8 own trial testimony was not an issue, unlike in Street where the state \n\n 9 otherwise would not have been able to challenge Street’s principal \n\n10 defense of coercion in giving his statement. \n\n11 To extend Street to the situation presented here would \n\n12 eviscerate the core protection of Bruton. To allow admission of \n\n13 Jeannot’s statement through McGinn would permit the admission of \n\n14 inculpatory statements of non‐testifying codefendants whenever the \n\n15 defendant changed his initial statement to investigators after \n\n16 investigators told the defendant of an accomplice’s incriminating \n\n\n\n\n 37\n\n \n\n\n\n\n1 confession. The prosecution would need only then argue to the trial \n\n2 court that the other confession was being shown to the jury just to \n\n3 show why there were changes to the original statement.18 19 \n\n4 * * * \n\n\n\n\n 18 The state also contends that the admission of Jeannot’s statements established \n “the voluntariness of [Orlando’s] statements.” Respondent’s Br. 30–31, 35. But, \n unlike Street, Orlando did not contest their voluntariness at trial. And, there was \n other evidence that Orlando’s statements were voluntary. The detectives testified \n that Orlando was advised of his Miranda rights and agreed to speak with them, \n and Orlando indicated that he understood his Miranda rights, was willing to give \n a statement without speaking with a lawyer or having one present, and that he \n was “mak[ing] the . . . statement[s] freely and voluntarily.” T. 546. \n \n 19 Other circuits have also recognized that Street does not permit the admission of \n\n an out‐of‐court accomplice statement merely because it may have some purpose \n other than for its truth. See, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1172–73 (9th Cir. \n 2001) (granting section 2254 petition due to Confrontation Clause violation and \n other constitutional errors, and stating that “[e]ven if the statements [we]re \n classified as non‐hearsay, they are sufficiently prejudicial that the jury would be \n unable to consider them only for limited purposes and would consider them for \n their truth in violation of the Confrontation Clause”) (abrogated on unrelated \n grounds by Payton v. Woodford, 299 F.3d 815, 828–29 n.11 (9th Cir. 2002), which the \n Supreme Court then vacated, 538 U.S. 975 (2003)); cf. United States v. Taylor, 569 \n F.3d 742, 750 (7th Cir. 2009) (finding no Confrontation Clause violation because \n the out‐of‐court statements were nonhearsay and there were no “complicating \n circumstances, such as a prosecutor who exploits nonhearsay statements for their truth”) \n (internal quotation marks and citation omitted) (emphasis added). \n\n\n\n 38\n\n \n\n\n\n\n 1 We hold that the Appellate Division unreasonably applied \n\n 2 Bruton in concluding that Orlando’s Sixth Amendment right to cross‐\n\n 3 examine a witness against him was not violated when the jury heard \n\n 4 of Jeannot’s statement implicating Orlando in the murder. To the \n\n 5 extent that the Appellate Division applied Street, it also extended that \n\n 6 decision unreasonably.20 \n\n 7 III. The Error Was Not Harmless \n\n 8 As Orlando and the state agree, the improper admission of \n\n 9 evidence in violation of the Confrontation Clause is subject to review \n\n10 for harmless error. Hendrix v. Smith, 639 F.2d 113, 115 (2d Cir. 1981) \n\n11 (citing Chapman v. California, 386 U.S. 18 (1967); Schneble v. Florida, 405 \n\n12 U.S. 427 (1972)). When a state court makes a harmless error \n\n\n\n\n 20 The state’s reliance on United States v. Logan, 419 F.3d 172 (2d Cir. 2005), is also \n misplaced. In Logan, the coconspirators’ statements concerning an alibi were \n admitted only to show the existence of a conspiracy. Id. at 176–78. Moreover, the \n statements were not admitted for their truth but—to the contrary—were shown to \n be untruthful. Id. Here, Jeannot’s statement—as recounted by Detective \n McGinn—was consistent with the state’s theory and was specifically utilized by \n the state to support that theory. \n \n\n 39\n\n \n\n\n\n\n 1 determination on direct appeal, we owe the “harmlessness \n\n 2 determination itself” deference under the Antiterrorism and Effective \n\n 3 Death Penalty Act of 1996 (“AEDPA”). Ayala, 135 S. Ct. at 2199. Here, \n\n 4 because the Appellate Division did not determine that the admission \n\n 5 of McGinn’s testimony as to Jeannot’s statements was harmless, we \n\n 6 owe no deference to the Appellate Division on that issue. E.g., Cotto \n\n 7 v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003) (“In this \n\n 8 case, harmless error was never reached in the state courts, and there \n\n 9 is therefore no state ruling which commands AEDPA deference.”). \n\n10 An error was harmless unless it resulted in “actual prejudice,” \n\n11 Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. \n\n12 Abrahamson, 507 U.S. 619, 637 (1993)), meaning that a court has “grave \n\n13 doubt about whether” the error “had ‘substantial and injurious effect \n\n14 or influence in determining the jury’s verdict.’” Id. at 2198 (quoting \n\n15 O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). This “Brecht standard” \n\n\n\n\n 40\n\n \n\n\n\n\n 1 requires “more than a ‘reasonable possibility’ that the error was \n\n 2 harmful.” Id. (quoting Brecht, 507 U.S. at 637). \n\n 3 We have little doubt that the improperly admitted testimony as \n\n 4 to Jeannot’s statement had such a powerful effect on the jury. The \n\n 5 prosecution’s theory was that Orlando was guilty of murder for \n\n 6 acting as Jeannot’s accomplice by paying Jeannot to shoot Calabrese \n\n 7 and helping Jeannot to do so. The trial judge instructed the jury that, \n\n 8 to convict Orlando, the prosecution had to prove that Orlando acted \n\n 9 in concert with Jeannot. The state argues that, even absent admission \n\n10 of Jeannot’s confession through McGinn’s testimony, the evidence of \n\n11 Orlando’s guilt was “nothing short of overwhelming.” Respondent’s \n\n12 Br. at 47. \n\n13 In support, the state contends that Orlando’s $17,000 gambling \n\n14 debt to Calabrese was compelling evidence of motive; that the \n\n15 hundred‐dollar bills found in the homes of both Orlando and Jeannot \n\n16 after the murder were evidence of the murder‐for‐hire transaction; \n\n\n\n\n 41\n\n \n\n\n\n\n 1 and that forensic testimony as to the location of bullet holes in \n\n 2 Calabrese’s sweatshirt showed that Orlando pulled the sweatshirt \n\n 3 over Calabrese’s head before Jeannot shot him. Finally, the state \n\n 4 emphasizes that the video evidence, as well as cell site evidence, \n\n 5 showed that Orlando was at the location where the homicide \n\n 6 occurred. We address these arguments in turn. \n\n 7 A. Evidence of Motive \n\n 8 Although it was undisputed that Orlando owed Calabrese \n\n 9 $17,000, the evidence showed that Orlando had won $27,000 in the \n\n10 month prior. Accordingly, he had net winnings of $10,000 over a six‐\n\n11 week period. Moreover, the evidence showed that Orlando had \n\n12 $2,700 in cash in his residence after the murder (and after he \n\n13 purportedly paid Jeannot to commit the murder). And so, the \n\n14 evidence that Orlando lacked the funds to pay Calabrese was slight.21 \n\n15 \n\n\n\n 21 The state also did not introduce evidence of Orlando’s bank records at trial. \n\n\n\n 42\n\n \n\n\n\n\n 1 Moreover, it strains credulity that Orlando would have \n\n 2 believed that murdering a courier in an illegal gambling operation \n\n 3 would erase a gambling debt of $17,000 and prevent attempts by the \n\n 4 other members of the gambling operation to seek payment. The \n\n 5 prosecution argued that Orlando’s plan was to murder Calabrese and \n\n 6 then claim to Calabrese’s superiors in the illegal sports betting \n\n 7 organization that he had paid Calabrese (and that Calabrese must \n\n 8 have been robbed and murdered by someone else). But it certainly is \n\n 9 not obvious that Orlando would have thought such a plan would \n\n10 work. \n\n11 B. Evidence of a Murder‐for‐Hire Transaction \n\n12 Similarly, the discovery of a small number of one‐hundred‐\n\n13 dollar bills in the homes of both Orlando and Jeannot after the murder \n\n14 was not particularly probative of a murder‐for‐hire transaction. The \n\n15 state asserts that the hundred‐dollar bill design with “the large \n\n16 picture of Ben Franklin” was “then new” and, thus so rare as to mean \n\n\n\n\n 43\n\n \n\n\n\n\n 1 Jeannot’s bills likely came from Orlando. Respondent’s Br. at 48. But \n\n 2 that design began circulating in 1996,22 eight years before the murder \n\n 3 of Calabrese. A jury thus would not have found it remarkable that \n\n 4 the bills in both homes had the same design. Nor did the U.S. \n\n 5 currency found in Jeannot’s home have any fingerprints, sequential \n\n 6 serial numbers, or DNA that might have linked them to a transaction \n\n 7 between Orlando and Jeannot. \n\n 8 In addition, only $500 in bills was found in Jeannot’s home. It \n\n 9 is entirely unclear why Jeannot would accept only $500 to commit a \n\n10 murder, particularly given that Jeannot undisputedly knew Orlando \n\n11 owed Calabrese many times that amount. The prosecution suggested \n\n12 that the $500 found in Jeannot’s home may have been only a small \n\n13 portion of the murder‐for‐hire payment. But the prosecution \n\n\n\n\n 22 See, e.g., Carl Rochelle, Redesigned $100 Bill Aimed at Foiling Counterfeiters, CNN \n (Mar. 25, 1996, 1:35 AM), http://edition.cnn.com/US/9603/new_100_bill/index.html \n (stating that the redesigned $100 bills with a larger Ben Franklin were to go into \n circulation on March 25, 1996). \n\n\n\n 44\n\n \n\n\n\n\n 1 presented no theory or evidence as to what may have happened to \n\n 2 any cash payment that exceeded the $500 found. \n\n 3 C. Forensic Evidence \n\n 4 We turn next to the expert testimony of two other Nassau \n\n 5 County detectives and Nassau County Deputy Chief Medical \n\n 6 Examiner DeMartino regarding the bullet holes in Calabrese’s \n\n 7 sweatshirt. The state argues that forensic evidence clearly established \n\n 8 that, just before Jeannot fired the first shot, Orlando pulled \n\n 9 Calabrese’s sweatshirt over Calabrese’s head to help Jeannot shoot \n\n10 him.23 \n\n11 We disagree that this evidence was persuasive of Orlando \n\n12 helping Jeannot shoot Calabrese. First, the location of the bullet holes \n\n13 did not clearly establish that Calabrese’s sweatshirt had been pulled \n\n14 up over his head at the time the first shot was fired. That is the \n\n\n\n The district court agreed with that argument, stating that the forensic evidence \n 23\n\n gave rise to “an inescapable inference . . . that Orlando . . . pulled the sweatshirt \n over Calabreseʹs head.” Orlando, 246 F. Supp. 3d at 576. \n\n\n\n 45\n\n \n\n\n\n\n 1 relevant time that, according to the prosecution, Orlando would have \n\n 2 been pulling up the sweatshirt. The first shot undisputedly went \n\n 3 through Calabrese’s right forearm, making holes only in his \n\n 4 sweatshirt sleeve, and the bullet then lodged in the right side of \n\n 5 Calabrese’s head. The prosecution suggested to the jury that Orlando \n\n 6 had pulled the sweatshirt so far over Calabrese’s head that the back \n\n 7 of his head was exposed, allowing the first bullet to pass through the \n\n 8 sleeve without creating any other holes in the sweatshirt. That is \n\n 9 possible, but that evidence is just as—if not more—consistent with \n\n10 Calabrese, for example, putting up his arms in a defensive position, \n\n11 and the first bullet passing through his right sleeve and arm, and then, \n\n12 into his uncovered24 head. Indeed, the medical examiner DeMartino \n\n13 concluded that the wound in Calabrese’s right arm was consistent \n\n\n\n\n 24 Nassau County Forensic Evidence Bureau Detective Kovar, whom the \n prosecution called to testify as to trace forensic evidence at the scene of the crime, \n agreed that the hood of the sweatshirt was not covering Calabrese’s head at the \n time the first shot was fired. \n\n\n\n 46\n\n \n\n\n\n\n 1 with Calabrese having raised his arm in a defensive manner prior to \n\n 2 the first shot being fired. Or, even if the sweatshirt had been pulled \n\n 3 up, it could have been done by Jeannot prior to shooting Calabrese. \n\n 4 By contrast, the forensic evidence was clearer that at the time \n\n 5 the second and third shots were fired into the back of Calabrese’s \n\n 6 head, his sweatshirt was pulled up over his head. There were holes \n\n 7 in the back of Calabrese’s sweatshirt that matched up with the bullet \n\n 8 wounds in the back of his head. But, it is not disputed that at the time \n\n 9 the second and third shots were fired, Calabrese was already lying, \n\n10 face‐down, on the ground from the effect of the first shot. Maybe \n\n11 Orlando pulled the sweatshirt over Calabrese’s head after the first \n\n12 shot; maybe it was Jeannot who pulled up the sweatshirt at this point \n\n13 to avoid blood splatter; or maybe the sweatshirt came upward as \n\n14 Calabrese fell to the ground and struggled after the first shot. In any \n\n15 event, the only obvious conclusions from the sweatshirt and autopsy \n\n16 evidence were that Calabrese was first shot by Jeannot from behind, \n\n\n\n\n 47\n\n \n\n\n\n\n 1 while he was standing up, and then twice more while lying on the \n\n 2 ground, with the sweatshirt over his head for the second and third \n\n 3 shots. But it is far from clear how the sweatshirt ended up over his \n\n 4 head. \n\n 5 The state introduced no other forensic evidence pointing to \n\n 6 Orlando, such as DNA, fingerprints, or blood in his car or on his \n\n 7 clothing. In sum, the forensic evidence to support the prosecution’s \n\n 8 accomplice theory was insubstantial. \n\n 9 D. Orlando’s Choice of a Meeting Location \n\n10 The evidence that Orlando chose a discreet meeting location to \n\n11 pay his debt to Calabrese was also only minimally probative of his \n\n12 guilt. Orlando told investigators that he and Calabrese had arranged \n\n13 to meet on December 3 in Island Park, and that he called Calabrese \n\n14 shortly beforehand to change the meeting to a more secluded place \n\n15 because there were several people within sight of the planned \n\n16 meeting location. \n\n\n\n\n 48\n\n \n\n\n\n\n 1 Jurors could have credited Orlando’s choice of meeting \n\n 2 location as part of a plan to murder Calabrese, but they could also \n\n 3 reasonably have accepted that Orlando was concerned about being \n\n 4 seen engaging in an illegal $17,000 gambling transaction. \n\n 5 E. Evidence of an Attempt to Create an Alibi \n\n 6 The prosecution also contended that the jury could have \n\n 7 construed Orlando’s several stops after the murder as evidence of an \n\n 8 attempt to manufacture a false alibi. Orlando explained the stops as \n\n 9 an attempt to be seen with Jeannot, so that Jeannot could not blame \n\n10 the murder on Orlando. But, a jury could instead have reasonably \n\n11 inferred that, given Jeannot’s purported threat to Orlando to maintain \n\n12 his silence, Orlando’s behavior after the murder was consistent with \n\n13 an attempt to put Jeannot at ease that Orlando would not report \n\n14 Jeannot’s role in the murder. \n\n15 \n\n16 \n\n\n\n\n 49\n\n \n\n\n\n\n 1 F. Evidence Orlando Was at the Murder Scene \n\n 2 Lastly, we acknowledge that the prosecution needed only to \n\n 3 convict Orlando of murder and not to prove specifically its murder‐\n\n 4 for‐hire theory. In that regard, the state emphasizes, for example, the \n\n 5 evidence that Orlando was present at the murder scene. In addition, \n\n 6 Orlando’s coworker Barbara Diamant testified that Orlando told her \n\n 7 the morning after the homicide that Calabrese had been shot in the \n\n 8 back of the head three times, before this became public information. \n\n 9 However, that Orlando was present for the murder was not disputed \n\n10 by him in his second statement or at trial, and as discussed above, the \n\n11 evidence that Orlando assisted the murder in some way was made \n\n12 substantially stronger by Jeannot’s incriminating confession. \n\n13 * * * \n\n14 In sum, considered both in isolation and cumulatively, the \n\n15 properly admitted evidence of Orlando’s guilt leaves us with “grave \n\n16 doubt” about whether the trial court’s error substantially and \n\n\n\n\n 50\n\n \n\n\n\n\n 1 injuriously influenced the jury’s verdict. See Davis, 135 S. Ct. at 2198. \n\n 2 McGinn’s testimony of Jeannot’s incriminating statement was \n\n 3 essential in persuading the jury of Orlando’s guilt and meets the bar \n\n 4 set by the Brecht standard. Accordingly, the constitutional error in \n\n 5 this case was not harmless. \n\n 6 CONCLUSION \n\n 7 For the foregoing reasons, we REVERSE the district court’s \n\n 8 denial of Orlando’s petition, and REMAND the case to the district \n\n 9 court with instructions to issue a writ of habeas corpus to Orlando on \n\n10 the sixtieth calendar day after the issuance of our mandate unless the \n\n11 District Attorney of Nassau County has, by that time, taken concrete \n\n12 and substantial steps to expeditiously retry Orlando. The mandate \n\n13 shall issue forthwith. \n\n\n\n\n 51\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Orlando v. Nassau Cty. Dist. Atty's Off.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-11\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐2390 \\n Orlando v. Nassau Cty. Dist. Atty’s Off. \\n\\n\\n\\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4 \\n 5 \\n 6 August Term, 2017 \\n 7 No. 17‐2390 \\n 8 \\n 9 MARK ORLANDO, \\n10 Petitioner‐Appellant, \\n11 \\n12 v. \\n13 \\n14 NASSAU COUNTY DISTRICT ATTORNEY’S OFFICE, \\n15 Respondent‐Appellee.1 2 \\n16 \\n17 \\n18 \\n19 \\n20 \\n\\n 1 The Clerk of Court is directed to amend the caption as set forth above. \\n\\n 2\\n The Nassau County District Attorney’s Office has proceeded as respondent in \\n this case, without objection. However, “§ 2254 petitioners challenging present \\n physical custody [should] name either the warden or the chief state penal officer \\n as a respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 450 n.18 (2004) (emphasis \\n removed) (citing Rule 2(a) of the Rules Governing Section 2254 Cases in the United \\n States District Courts; Advisory Committeeʹs Note on Rule 2(a), 28 U.S.C., pp. 469‐\\n 470 (adopted in 1976) (stating that this is the rule in the “usual case”)). As such, \\n the district court is directed on remand (and prior to issuing the writ) to substitute \\n as respondent the warden of Orlando’s place of incarceration. \\n\\n \\n\\n\\n\\n\\n 1 \\n 2 \\n 3 Appeal from the United States District Court \\n 4 for the Eastern District of New York. \\n 5 No. 11‐cv‐3992 — Edward R. Korman, Judge. \\n 6 \\n 7 \\n 8 ARGUED: MAY 30, 2018 \\n 9 DECIDED: FEBRUARY 11, 2019 \\n10 \\n11 Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.* \\n12 \\n13 \\n14 Appeal from a judgment of the United States District Court for \\n15 the Eastern District of New York (Korman, J.) denying Petitioner‐\\n16 Appellant Mark Orlando’s petition for a writ of habeas corpus \\n17 pursuant to 28 U.S.C. § 2254. Orlando was convicted of murder in the \\n18 second degree in the Supreme Court of New York, Nassau County. \\n19 During the homicide investigation, police detectives separately \\n20 interrogated Orlando and his alleged accomplice. The latter \\n21 confessed that he had shot the victim, but that Orlando had hired him \\n22 to commit the murder. At Orlando’s trial, a detective was permitted \\n23 to testify that the accomplice had stated that Orlando paid him to \\n24 commit the murder. The accomplice, who was tried separately, did \\n25 not testify at Orlando’s trial. Orlando contends that notwithstanding \\n26 a limiting instruction by the trial court, the detective’s testimony \\n27 violated the Confrontation Clause of the Sixth Amendment and that \\n28 the state court’s ruling to the contrary constituted an objectively \\n29 unreasonable application of clearly established federal law. We \\n\\n *\\n Judge Michael P. Shea, United States District Court for the District of Connecticut, \\n sitting by designation. \\n\\n\\n\\n 2\\n\\n \\n\\n\\n\\n\\n 1 agree. Accordingly, we REVERSE the district court’s denial of \\n 2 Orlando’s petition, and REMAND the cause to the district court with \\n 3 instructions to grant the petition for a writ of habeas corpus. \\n 4 \\n 5 Judge SHEA dissents in a separate opinion. \\n 6 \\n 7 \\n 8 JANE SIMKIN SMITH, Millbrook, NY, for \\n 9 Petitioner‐Appellant. \\n10 \\n11 SARAH S. RABINOWITZ, ASSISTANT \\n12 DISTRICT ATTORNEY (Tammy J. \\n13 Smiley, Assistant District Attorney, on \\n14 the brief), for Madeline Singas, Nassau \\n15 County District Attorney, Mineola, \\n16 New York, for Respondent‐Appellee. \\n17 DRONEY, Circuit Judge: \\n\\n18 On Friday night, December 3, 2004, at approximately 8:45 p.m., \\n\\n19 in response to a 911 call, police officers from the Long Beach, New \\n\\n20 York, police department found the body of Bobby Calabrese. 3 \\n\\n21 Calabrese was lying face down next to his Infiniti automobile, which \\n\\n22 was still running. He had been shot in the back of his head at close \\n\\n\\n\\n\\n 3 Long Beach is in Nassau County, New York, on Long Island. \\n\\n\\n\\n 3\\n\\n \\n\\n\\n\\n\\n 1 range three times with a .44 caliber revolver. Calabrese had been a \\n\\n 2 “runner” for an illegal sports betting organization. \\n\\n 3 The following Thursday, Nassau County police detectives \\n\\n 4 interviewed Mark Orlando and Herva Jeannot, who were together the \\n\\n 5 night of Calabrese’s homicide. The detectives believed that Orlando \\n\\n 6 and Jeannot had been with Calabrese that night. Orlando and Jeannot \\n\\n 7 were questioned in separate rooms at the police station. Jeannot \\n\\n 8 confessed to shooting Calabrese, stating that Orlando hired Jeannot \\n\\n 9 to murder Calabrese to avoid paying a gambling debt to Calabrese. \\n\\n10 During his questioning, Orlando gave two different statements to the \\n\\n11 police but denied being involved in the murder. \\n\\n12 Orlando and Jeannot were charged with murder for their roles \\n\\n13 in Calabrese’s death and, in August 2005, a jury in the New York \\n\\n14 Supreme Court for Nassau County convicted Mark Orlando of \\n\\n15 murder in the second degree. The trial court had severed Orlando \\n\\n16 and Jeannot’s trials to avoid a Sixth Amendment Confrontation \\n\\n\\n\\n\\n 4\\n\\n \\n\\n\\n\\n\\n 1 Clause violation that could have arisen from Orlando’s jury hearing \\n\\n 2 Jeannot’s confession if Jeannot did not testify and thus could not be \\n\\n 3 cross‐examined about it.4 Severing the trials, however, did not avoid \\n\\n 4 violating Orlando’s right to confront the witnesses against him, as the \\n\\n 5 trial court allowed the jury to learn of Jeannot’s confession \\n\\n 6 implicating Orlando at Orlando’s trial and Jeannot did not testify at \\n\\n 7 Orlando’s trial. \\n\\n 8 ORLANDO’S TRIAL \\n\\n 9 I. Evidence Before the Jury of Jeannot’s Statement \\n\\n10 The state’s theory at trial was that Orlando paid Jeannot to \\n\\n11 murder Calabrese to extinguish a $17,000 gambling debt Orlando \\n\\n12 owed to Calabrese and that Orlando assisted Jeannot in the murder. \\n\\n13 The prosecution argued that Orlando lured Calabrese to the remote \\n\\n\\n\\n\\n 4 Although the record on appeal does not reflect the trial court’s decision to sever \\n the trials, both Orlando and the state describe the trial court as having \\n (appropriately) severed Orlando and Jeannot’s trials “pursuant to” Bruton v. \\n United States, 391 U.S. 123, 124 (1968). Pet. Br. at 2; Respondent’s Br. at 39. \\n\\n\\n\\n 5\\n\\n \\n\\n\\n\\n\\n 1 location near Long Beach5 on the pretext of meeting to pay the $17,000 \\n\\n 2 debt, but that Orlando had previously agreed to pay Jeannot to shoot \\n\\n 3 Calabrese when Orlando met up with Calabrese. Orlando did not \\n\\n 4 dispute at trial that he was present for the murder, but contended that \\n\\n 5 he had intended merely to pay Calabrese; he did not expect Jeannot \\n\\n 6 (who was a friend of Orlando’s and a passenger in the car Orlando \\n\\n 7 drove that night) to shoot Calabrese and then take the gambling \\n\\n 8 money for himself. \\n\\n 9 During his police interrogation, Orlando gave two statements \\n\\n10 to Nassau County Police Detectives. Detectives McHugh and \\n\\n11 McGinn jointly interviewed Orlando when he gave his first statement, \\n\\n12 and Detective McHugh testified to this statement at Orlando’s trial. \\n\\n13 According to McHugh, Orlando first stated that he and Jeannot were \\n\\n14 good friends and coworkers at Professional Credit Services, a Long \\n\\n\\n\\n 5\\n Although officers from the Long Beach police department responded to the \\n report of the homicide, the homicide occurred in Island Park, which is a town \\n adjacent to Long Beach. \\n\\n\\n\\n 6\\n\\n \\n\\n\\n\\n\\n 1 Island debt collection agency. Orlando regularly gambled on sports. \\n\\n 2 About one month before the murder, another coworker introduced \\n\\n 3 Orlando to Calabrese. Orlando began to place bets through Calabrese \\n\\n 4 and soon won $28,465. \\n\\n 5 Orlando’s winning streak with Calabrese ended, and Orlando \\n\\n 6 lost $17,800 over the course of two weeks. At that point, Orlando \\n\\n 7 stopped betting with Calabrese. But Orlando still owed Calabrese \\n\\n 8 $17,000, and he arranged to pay Calabrese on December 3. \\n\\n 9 In that first statement to the Nassau County detectives, Orlando \\n\\n10 indicated that he and Jeannot went together in Orlando’s wife’s car to \\n\\n11 pay Calabrese, did so, and otherwise had an uneventful evening. \\n\\n12 After Orlando paid Calabrese the $17,000, he and Jeannot made \\n\\n13 several stops: at a Suzuki car dealership to pick up a check, at an ATM, \\n\\n14 and at Orlando’s friend’s house to look at some new construction. \\n\\n15 Orlando then dropped off Jeannot at Jeannot’s home, around 10:30 \\n\\n16 p.m. \\n\\n\\n\\n\\n 7\\n\\n \\n\\n\\n\\n\\n 1 After Detective McHugh finished testifying, Detective McGinn \\n\\n 2 took the stand and confirmed much of the substance of Orlando’s first \\n\\n 3 statement. According to McGinn, after Orlando signed a written \\n\\n 4 statement summarizing that version of the night’s events, Detectives \\n\\n 5 McGinn and McHugh left the interview room. McHugh went to \\n\\n 6 speak with Jeannot. Approximately three hours after leaving \\n\\n 7 Orlando’s interview room, McGinn returned to speak further with \\n\\n 8 Orlando. \\n\\n 9 Before Detective McGinn had begun testifying at Orlando’s \\n\\n10 trial (and out of the presence of the jury), counsel for Orlando had \\n\\n11 objected, on hearsay and Confrontation Clause grounds, to the \\n\\n12 admission of McGinn’s anticipated testimony recounting Jeannot’s \\n\\n13 statement as to Orlando’s involvement in the murder. The trial court \\n\\n14 denied the objection, ruling that “this information that the People are \\n\\n15 intending to offer in their direct case is not being offered for the truth \\n\\n16 of the contents of the statement but rather to give a clear picture to the \\n\\n\\n\\n\\n 8\\n\\n \\n\\n\\n\\n\\n 1 jury [of] what was going on during the interrogation of [Orlando].” \\n\\n 2 T. 166–67. \\n\\n 3 After Orlando’s objection was denied, the prosecution asked \\n\\n 4 Detective McGinn about “the circumstances under which [McGinn] \\n\\n 5 resumed speaking with” Orlando. T. 620.6 McGinn testified that he \\n\\n 6 had learned from Detective McHugh that Jeannot was making \\n\\n 7 inculpatory statements about the murder. “I knew Detective \\n\\n 8 McHugh was in talking to Mr. Herva Jeannot,” McGinn testified. Id. \\n\\n 9 “I believe,” he told the jury, “that Herva Jeannot was relaying some \\n\\n10 of the events that really took place that night [of the murder].” Id. \\n\\n11 McGinn then testified that he re‐entered Orlando’s interview \\n\\n12 room. Id. “I went back in and I told Mr. Orlando that Detective \\n\\n13 McHugh was over there talking to Herva [Jeannot] and he was \\n\\n14 probably giving us . . . other facts that happened that night, the truth \\n\\n\\n\\n\\n 6 Citations to the trial transcript are abbreviated “T. __” throughout this opinion. \\n\\n\\n\\n 9\\n\\n \\n\\n\\n\\n\\n 1 as to what happened that night.” Id. “Now, would be the time . . . to \\n\\n 2 tell us what was going on.” Id. \\n\\n 3 According to McGinn’s testimony, Orlando responded, “[y]ou \\n\\n 4 don’t understand,” and McGinn left the interview room. T. 620. \\n\\n 5 McGinn testified that he returned a few minutes later. According to \\n\\n 6 McGinn, “[a]gain, I explained to Mr. Orlando that Herva Jeannot was, \\n\\n 7 in fact, giving up . . . what we felt were truer versions of the events of \\n\\n 8 Bobby Calabrese’s murder. That we had a videotape of the spot the \\n\\n 9 meeting took place. That the meeting did not take place where \\n\\n10 [Orlando] originally told us it had taken place. I told [Orlando] that \\n\\n11 Herva Jeannot had given up where the gun was and that the \\n\\n12 defendant should . . .[,] if he wants his version of the story told[,] . . . \\n\\n13 tell us the truth at this point.” T. 621. \\n\\n14 Orlando initially responded, again, “you don’t understand,” \\n\\n15 but eventually stated, without elaboration, that he was afraid (of \\n\\n16 Jeannot) for his family. T. 621–23. McGinn testified that he again left \\n\\n\\n\\n\\n 10\\n\\n \\n\\n\\n\\n\\n 1 the interview room and that he came back around an hour later. He \\n\\n 2 then testified, over the renewed objection of Orlando’s attorney, to the \\n\\n 3 following: “I told [Orlando] . . . that Herva Jeannot was, in fact, talking \\n\\n 4 to the other detectives. [Jeannot] had given a statement and that he \\n\\n 5 had implicated himself in the murder. [Jeannot] said that he was the \\n\\n 6 murderer, but that Mark Orlando had paid him to do it.” T. 623–24. \\n\\n 7 At this point, the trial court gave the jury a limiting instruction. \\n\\n 8 The trial court stated, “Ladies and gentlemen, you have been \\n\\n 9 permitted to hear testimony about remarks made to the defendant by \\n\\n10 Detective McGinn about statements allegedly made by Herva \\n\\n11 Jeannot. You’re to consider this testimony only when considering the \\n\\n12 circumstances under which the defendant himself may have made \\n\\n13 statements and for no other purposes.” T. 624. \\n\\n14 The trial court then instructed the jury “to completely disregard \\n\\n15 any statement allegedly made by Herva Jeannot when considering \\n\\n16 evidence against the defendant. . . . You are not to concern yourself \\n\\n\\n\\n\\n 11\\n\\n \\n\\n\\n\\n\\n 1 with whether Herva Jeannot did or did not make any statements to \\n\\n 2 the police, if he did, what those statement[s] may have been or \\n\\n 3 whether or not they were true.”7 Id. \\n\\n 4 McGinn then resumed testifying. He testified that, after \\n\\n 5 learning of Jeannot’s statement implicating Orlando in the murder, \\n\\n 6 Orlando changed his account of the evening’s events. Orlando stated \\n\\n 7 that when he and Jeannot met Calabrese that night, Orlando paid \\n\\n 8 Calabrese and then Jeannot unexpectedly shot Calabrese, taking the \\n\\n 9 cash.8 T. 676–82. According to Orlando, he and Jeannot then drove \\n\\n10 away, and Jeannot threatened to harm Orlando’s (pregnant) wife if \\n\\n\\n\\n\\n 7\\n During its final charge to the jury, the trial court gave substantially the same \\n limiting instruction as to McGinn’s testimony regarding Jeannot’s statement as it \\n had given earlier in the trial. \\n\\n 8 Orlando first relayed this second version of events to McGinn. Then, McGinn left \\n the room, and Nassau Country Detective Cerighino, who had not been present for \\n the questioning of Orlando, came into the room. Cerighino reduced Orlando’s \\n second account to writing. Cerighino wrote the statement based upon what \\n Orlando told him, and Orlando signed it. The written statement is substantially \\n similar to McGinn’s account at trial of the second version of events that Orlando \\n gave to McGinn. \\n\\n\\n\\n 12\\n\\n \\n\\n\\n\\n\\n 1 Orlando were to tell anyone about the homicide. T. 682. Jeannot told \\n\\n 2 Orlando that Calabrese was not the first person Jeannot had killed \\n\\n 3 and that Calabrese would not be the last. Id. As a result, according to \\n\\n 4 Orlando, he then made the stops at the car dealership and elsewhere \\n\\n 5 because he wanted people and cameras to observe that Jeannot was \\n\\n 6 with him. In addition, at some point, Jeannot told Orlando to stop on \\n\\n 7 a bridge, and Jeannot then threw the gun he used to kill Calabrese \\n\\n 8 into the water. \\n\\n 9 II. The Prosecution’s Summation \\n\\n10 The prosecution argued in its summation to the jury that \\n\\n11 Orlando had paid Jeannot to murder Calabrese. The prosecution also \\n\\n12 specifically called to the jury’s attention that “Detective McGinn \\n\\n13 leaves [Orlando’s interrogation room], comes back a little later, . . . \\n\\n14 [and] Detective McGinn finally says, look, [Jeannot’s] giving it up. \\n\\n15 [Jeannot’s] telling us everything. . . . He’s telling us he did the \\n\\n16 shooting and you paid him.” T. 894–95. \\n\\n\\n\\n\\n 13\\n\\n \\n\\n\\n\\n\\n 1 Apart from Jeannot’s statement, there was little evidence to \\n\\n 2 support the state’s theory. The prosecution showed that, after the \\n\\n 3 murder, investigators found in Jeannot’s home five one‐hundred \\n\\n 4 dollar bills and found in Orlando’s home ten one‐hundred dollar bills, \\n\\n 5 all of which had a large‐portrait image of Benjamin Franklin. The \\n\\n 6 prosecution argued, “How do you know [Orlando] paid [Jeannot?] \\n\\n 7 Why else would [Jeannot] do it, if not for $500, those five Ben \\n\\n 8 Franklins hundred dollar bills . . . a week after the execution murder. \\n\\n 9 Just so happens the defendant has ten of his own [$100 bills] back in \\n\\n10 [his home]. Of course [Orlando] paid [Jeannot]. [Jeannot’s] not doing \\n\\n11 it as a favor.” T. 876. \\n\\n12 The prosecution again returned to its “murder‐for‐hire” theory \\n\\n13 later in its closing argument, stating that “[Orlando] wasn’t upset by \\n\\n14 watching Bobby die. That was what was supposed to happen. That \\n\\n15 is what he paid [Jeannot] to do, to do his dirty work for him. Couldn’t \\n\\n16 do it himself.” T. 885. The prosecution suggested that Orlando paid \\n\\n\\n\\n\\n 14\\n\\n \\n\\n\\n\\n\\n 1 Jeannot when the pair briefly stopped at Orlando’s house after the \\n\\n 2 murder. T. 890. \\n\\n 3 III. Verdict and Sentence \\n 4 \\n 5 The jury found Orlando guilty of murder in the second degree. \\n\\n 6 Orlando was sentenced to an indeterminate term of 25 years to life in \\n\\n 7 prison on August 18, 2005. He is currently serving his sentence. \\n\\n 8 Jeannot was also convicted of the murder in a separate trial. \\n\\n 9 STATE COURT APPELLATE PROCEEDINGS \\n\\n10 Orlando appealed his conviction to the New York Supreme \\n\\n11 Court, Appellate Division. People v. Orlando, 61 A.D.3d 1001 (N.Y. \\n\\n12 App. Div. 2d Dep’t 2009). Orlando contended that Detective \\n\\n13 McGinn’s testimony as to Jeannot’s statement was inadmissible \\n\\n14 hearsay and also violated Orlando’s right to confront witnesses \\n\\n15 through cross examination, as guaranteed by the Sixth Amendment \\n\\n16 of the United States Constitution and incorporated against the states \\n\\n17 by the Fourteenth Amendment. Appellant’s Br. at 70–77, People v. \\n\\n\\n\\n\\n 15\\n\\n \\n\\n\\n\\n\\n 1 Orlando, No. 2005‐08854 (N.Y. App. Div. 2d Dep’t Mar. 23, 2008); \\n\\n 2 Orlando, 61 A.D.3d at 1001–03. \\n\\n 3 The Appellate Division rejected Orlando’s argument in a single \\n\\n 4 sentence, stating: “The [trial] court properly instructed the jury that \\n\\n 5 the testimony was admitted for the limited purpose of explaining the \\n\\n 6 detectiveʹs actions and their effect on the defendant, and not for the \\n\\n 7 truth of the codefendantʹs statement. ” Id. (quoting People v. Ewell, 12 \\n\\n 8 A.D.3d 616, 617 (N.Y. App. Div. 2d Dep’t 2004)) (internal quotation \\n\\n 9 marks omitted).9 The Appellate Division also cited Tennessee v. Street, \\n\\n10 471 U.S. 409 (1985), for its conclusion that the trial court did not err in \\n\\n11 admitting Jeannot’s statement through Detective McGinn. Id. \\n\\n\\n\\n\\n 9 Although the Appellate Division described Jeannot as a “codefendant,” as is \\n mentioned in the above text, he was tried and convicted at a separate trial after the \\n Bruton ruling severing the trials. \\n\\n\\n\\n 16\\n\\n \\n\\n\\n\\n\\n 1 The New York Court of Appeals subsequently denied Orlando \\n\\n 2 leave to appeal, thereby rendering the Appellate Division’s decision \\n\\n 3 final. People v. Orlando, 981 N.E.2d 291, 291 (N.Y. 2012).10 \\n\\n 4 SECTION 2254 PROCEEDING IN THE DISTRICT COURT \\n 5 \\n 6 Orlando, proceeding pro se, filed a petition for a writ of habeas \\n\\n 7 corpus pursuant to 28 U.S.C. § 2254 in the United States District Court \\n\\n 8 for the Eastern District of New York. As in his direct appeal, Orlando \\n\\n 9 argued that McGinn’s testimony regarding Jeannot’s statement was \\n\\n10 inadmissible hearsay and violated his Confrontation Clause right. \\n\\n11 The district court denied the writ.11 \\n\\n12 The district court identified the following testimony by McGinn \\n\\n13 as at issue in the Confrontation Clause analysis: \\n\\n\\n\\n Following his unsuccessful state appeals, Orlando filed two unsuccessful coram \\n 10\\n\\n nobis petitions in state court alleging ineffective assistance of appellate counsel. See \\n People v. Orlando, 85 A.D.3d 823 (N.Y. App. Div. 2d Dep’t 2011); People v. Orlando, \\n 98 A.D.3d 691 (N.Y. App. Div. 2d Dep’t 2012). There is no dispute that Orlando \\n has properly exhausted his Confrontation Clause claim for federal habeas review. \\n\\n 11 Orlando pursues only his Confrontation Clause challenge on appeal. See \\n generally Pet. Br. \\n\\n\\n\\n 17\\n\\n \\n\\n\\n\\n\\n 1 I left the [interrogation] room at about 6:50 [AM]. I went \\n 2 back into the room at about ten minutes to eight. About 7:50 \\n 3 in the morning. And I told [Orlando] at this point that \\n 4 Herva Jeannot was, in fact, talking to the other detectives. \\n 5 He had given a statement and he had implicated himself in \\n 6 the murder. He said that he was the murderer, but that \\n 7 Mark Orlando had paid him to do it. \\n 8 \\n 9 Orlando v. Nassau Cty. Dist. Atty’s Office, 246 F. Supp. 3d 569, 572–73 \\n\\n10 (E.D.N.Y. 2017).12 \\n\\n11 Relying principally on Tennessee v. Street, 471 U.S. 409 (1985), \\n\\n12 and United States v. Logan, 419 F.3d 172 (2d Cir. 2005), the district court \\n\\n13 rejected Orlando’s Confrontation Clause argument. Orlando, 246 F. \\n\\n14 Supp. 3d at 571–76. The district court reasoned that Jeannot’s \\n\\n15 statement was not offered against Orlando for its truth but only \\n\\n16 “provided context for explaining why Orlando altered his [original] \\n\\n\\n\\n\\n 12 The district court did not recount or discuss the portion of McGinn’s testimony \\n to the jury that vouched for the truth of Jeannot’s statement. T. 620 (“Herva \\n Jeannot was relaying some of the events that really took place that night . . . the \\n truth as to what happened that night.”); T. 621 (“I explained to Mr. Orlando that \\n Herva Jeannot was, in fact, giving up what we felt were truer versions of the events \\n of Bobby Calabrese’s murder.”) (emphasis added). That aspect of McGinn’s \\n testimony is discussed later in this opinion. \\n\\n\\n\\n 18\\n\\n \\n\\n\\n\\n\\n 1 exculpatory story” to admit that he had in fact been present for the \\n\\n 2 murder but that Jeannot had unexpectedly committed it. Id. at 574. \\n\\n 3 The district court also held that any error was harmless. Id. at 575–76. \\n\\n 4 The district court issued a certificate of appealability as to \\n\\n 5 Orlando’s Confrontation Clause argument. Id. at 578. Orlando then \\n\\n 6 timely filed a notice of appeal. \\n\\n 7 DISCUSSION \\n\\n 8 Orlando argues that: (1) without his ability to cross‐examine \\n\\n 9 Jeannot, McGinn’s testimony recounting Jeannot’s statement violated \\n\\n10 Orlando’s Confrontation Clause right; (2) the Appellate Division’s \\n\\n11 ruling to the contrary was “objectively unreasonable;” and (3) the \\n\\n12 erroneous admission of the testimony was not harmless. We agree. \\n\\n13 Accordingly, we reverse the district court’s denial of Orlando’s \\n\\n14 petition. \\n\\n15 \\n\\n16 \\n\\n\\n\\n\\n 19\\n\\n \\n\\n\\n\\n\\n 1 I. Standard of Review and Section 2254 Framework \\n 2 \\n 3 Under 28 U.S.C. § 2254, “a person in custody pursuant to the \\n\\n 4 judgment of a State court” may petition a district court for a writ of \\n\\n 5 habeas corpus “on the ground that he is in custody in violation of the \\n\\n 6 Constitution or laws or treaties of the United States.” Id. § 2254(a). \\n\\n 7 We review de novo a district court’s denial of a petition for a writ of \\n\\n 8 habeas corpus pursuant to 28 U.S.C. § 2254. Lynch v. Dolce, 789 F.3d \\n\\n 9 303, 311–12 (2d Cir. 2015). \\n\\n10 A petition for a writ of habeas corpus “shall not be granted with \\n\\n11 respect to any claim that was adjudicated on the merits in State court \\n\\n12 proceedings unless the adjudication of the claim . . . resulted in a \\n\\n13 decision that was contrary to, or involved an unreasonable \\n\\n14 application of, clearly established Federal law, as determined by the \\n\\n15 Supreme Court of the United States.” § 2254(d). “A state court \\n\\n16 decision is an ‘unreasonable application’ of clearly established federal \\n\\n17 law ‘if the state court identifies the correct governing legal principle \\n\\n\\n\\n\\n 20\\n\\n \\n\\n\\n\\n\\n 1 from [the Supreme] Courtʹs decisions but unreasonably applies that \\n\\n 2 principle to the facts of the prisoner’s case.’” Howard v. Walker, 406 \\n\\n 3 F.3d 114, 122 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, \\n\\n 4 413 (2000)). However, that bar is not reached where “fairminded \\n\\n 5 jurists could disagree on the correctness of the state court’s decision.” \\n\\n 6 Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks \\n\\n 7 and citation omitted). \\n\\n 8 II. The Confrontation Clause Violation \\n\\n 9 The Sixth Amendment’s Confrontation Clause provides that \\n\\n10 “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to \\n\\n11 be confronted with the witnesses against him.” U.S. Const. amend. \\n\\n12 VI. “‘The crux of this right is that the government cannot introduce \\n\\n13 at trial” an out‐of‐court witness’s “statements containing accusations \\n\\n14 against the defendant unless the accuser takes the stand against the \\n\\n15 defendant and is available for cross examination.’” United States v. \\n\\n16 Jass, 569 F.3d 47, 55 (2d Cir. 2009) (quoting Ryan v. Miller, 303 F.3d 231, \\n\\n\\n\\n\\n 21\\n\\n \\n\\n\\n\\n\\n 1 247 (2d Cir. 2002)) (internal quotations omitted). To implicate the \\n\\n 2 Confrontation Clause, the statement must be used to prove the truth \\n\\n 3 of the matter asserted, and the statement must be “testimonial.” Davis \\n\\n 4 v. Washington, 547 U.S. 813, 821–22 (2006) (citing Crawford v. \\n\\n 5 Washington, 541 U.S. 36, 51 (2004)). In other words, it must be \\n\\n 6 “testimonial hearsay.” Id. at 823. \\n\\n 7 Out‐of‐court statements may have a proper purpose other than \\n\\n 8 being considered for their truth. The Supreme Court and this Circuit \\n\\n 9 have acknowledged that a trial court’s instruction to a jury to consider \\n\\n10 only for a limited, nonhearsay purpose the non‐testifying witness’s \\n\\n11 out‐of‐court statement “is generally sufficient to eliminate . . . \\n\\n12 Confrontation Clause concern[s].” Jass, 569 F.3d at 55 (citing \\n\\n13 Richardson v. Marsh, 481 U.S. 200, 206 (1987)). That is because “[t]he \\n\\n14 law ‘almost invariabl[y] assum[es]’ that jurors follow such limiting \\n\\n15 instructions.” Id. (quoting Richardson, 481 U.S. at 206). \\n\\n\\n\\n\\n 22\\n\\n \\n\\n\\n\\n\\n 1 “Nevertheless, in Bruton v. United States, . . . the Supreme Court \\n\\n 2 identified an exception to th[e] assumption” that jurors follow \\n\\n 3 limiting instructions. Id. In Bruton v. United States, 391 U.S. 123, 124 \\n\\n 4 (1968), the defendant Bruton and his codefendant were tried jointly \\n\\n 5 for armed postal robbery. A postal inspector testified that the \\n\\n 6 codefendant confessed to him that Bruton and the codefendant \\n\\n 7 committed the robbery together. Id. The codefendant did not take \\n\\n 8 the stand, so he could not be cross‐examined. Id. at 128. The district \\n\\n 9 court provided a limiting instruction to the jury that “although [the \\n\\n10 codefendant’s] confession was competent evidence against [the \\n\\n11 codefendant] it was inadmissible hearsay against [Bruton] and \\n\\n12 therefore had to be disregarded in determining [Bruton’s] guilt or \\n\\n13 innocence.” Id. at 125. \\n\\n14 The Supreme Court reversed Bruton’s conviction, holding that \\n\\n15 because his codefendant was not subject to cross examination and \\n\\n16 “because of the substantial risk that the jury, despite instructions to \\n\\n\\n\\n\\n 23\\n\\n \\n\\n\\n\\n\\n 1 the contrary, looked to the incriminating extrajudicial statements in \\n\\n 2 determining [Bruton’s] guilt,” admission of the codefendant’s \\n\\n 3 confession in front of Bruton’s jury violated Bruton’s “right of cross‐\\n\\n 4 examination secured by the Confrontation Clause of the Sixth \\n\\n 5 Amendment.” Id. at 126. \\n\\n 6 The Court further explained that “[n]ot only are [alleged \\n\\n 7 accomplices’] incriminations devastating to the defendant but their \\n\\n 8 credibility is inevitably suspect, a fact recognized when accomplices \\n\\n 9 do take the stand and the jury is instructed to weigh their testimony \\n\\n10 carefully given the recognized motivation to shift blame onto others. \\n\\n11 The unreliability of such evidence is intolerably compounded when \\n\\n12 the alleged accomplice . . . does not testify and cannot be tested by \\n\\n13 cross‐examination.” Id. at 136. \\n\\n14 As a result, when a non‐testifying witness’s confession \\n\\n15 “expressly” implicates the defendant, “the risk that the jury will not, \\n\\n16 or cannot, follow instructions [to limit its consideration of the \\n\\n\\n\\n\\n 24\\n\\n \\n\\n\\n\\n\\n 1 evidence for a proper purpose] is so great, and the consequences of \\n\\n 2 failure so vital to the defendant, that the practical and human \\n\\n 3 limitations of the jury system cannot be ignored.” Richardson, 481 U.S. \\n\\n 4 at 207–08 (quoting Bruton, 391 U.S. at 135–36). When a jury hears such \\n\\n 5 express incriminations, even if given a “clear” limiting instruction, \\n\\n 6 “the effect is the same as if there had been no instruction at all.” \\n\\n 7 Bruton, 391 U.S. at 137. \\n\\n 8 Although the non‐testifying witness in Bruton was a \\n\\n 9 codefendant in a joint trial, Bruton applies equally to the testimonial \\n\\n10 and incriminating statements of non‐testifying accomplices tried \\n\\n11 separately. See Crawford, 541 U.S. at 57, 69 (stating that testimonial \\n\\n12 statements admitted without the opportunity to cross‐examine the \\n\\n13 declarant violate the Confrontation Clause and referring to Bruton as \\n\\n14 barring “accomplice confessions where the defendant had no \\n\\n15 opportunity to cross‐examine”); Tennessee v Street, 471 U.S. 409, 411, \\n\\n16 414–15 (1985) (recognizing that if the jury had been asked to infer that \\n\\n\\n\\n\\n 25\\n\\n \\n\\n\\n\\n\\n 1 the confession of the non‐testifying accomplice—who was tried \\n\\n 2 separately—proved that the defendant participated in the murder, \\n\\n 3 “Confrontation Clause concerns would have been implicated”). \\n\\n 4 Here, the Appellate Division correctly acknowledged that, \\n\\n 5 absent cross‐examination of Jeannot, admission of his facially \\n\\n 6 incriminating statement risked violating the Confrontation Clause, as \\n\\n 7 was recognized in Bruton. 13 People v. Orlando, 61 A.D.3d at 1002. \\n\\n 8 However, the Appellate Division reasoned that the jury would use \\n\\n 9 this evidence only to “explain the detective’s actions and their effect” \\n\\n10 on Orlando—that effect presumably being the reason why Orlando \\n\\n11 changed his account of the events of the night of the murder. Id. \\n\\n\\n\\n\\n 13 Although the Appellate Division did not cite Bruton or articulate its holding, a \\n state reviewing court need not to do so in order for it to be considered to have \\n applied the constitutional principles set forth in Supreme Court precedent. See, \\n e.g., Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (“[A] state court need not even be \\n aware of our precedents, so long as neither the reasoning nor the result of the state‐\\n court decision contradicts them.”) (internal quotation marks and citation omitted). \\n The Appellate Division did cite Tennessee v. Street, 471 U.S. 409 (1985), which is \\n discussed later in this opinion. \\n\\n\\n\\n 26\\n\\n \\n\\n\\n\\n\\n 1 That conclusion by the Appellate Division was an unreasonable \\n\\n 2 application of Bruton. McGinn led the jury to believe that Jeannot had \\n\\n 3 actually made the statement McGinn recounted, and that statement \\n\\n 4 expressly inculpated Orlando as Jeannot’s accomplice in the murder. \\n\\n 5 Bruton plainly instructs that the jury could not be presumed to \\n\\n 6 disregard Jeannot’s statement for its truth, even with a limiting \\n\\n 7 instruction.14 \\n\\n 8 A. Jeannot Was an Out‐of‐Court Witness \\n\\n 9 The state argues in its brief that “[n]either McGinn nor \\n\\n10 McHugh ever testified that Jeannot actually made the statements at \\n\\n11 issue,” Respondent’s Br. at 29–30; in other words, that Jeannot was \\n\\n12 not an out‐of‐court “witness” within the meaning of the \\n\\n13 Confrontation Clause, see Davis, 547 U.S. at 821–22. And so, the state \\n\\n\\n\\n 14 In addition, there is no doubt that Jeannot’s statement was “testimonial.” See \\n Davis, 547 U.S. at 821–22 (holding that statements made “in the course of police \\n interrogation” are testimonial when made under “circumstances objectively \\n indicat[ing] . . . that the primary purpose of the interrogation [was] to establish or \\n prove past events potentially relevant to later criminal prosecution”). \\n\\n\\n\\n 27\\n\\n \\n\\n\\n\\n\\n 1 contends, the situation here was no different than a jury merely \\n\\n 2 hearing that an investigator had used deception to elicit a confession. \\n\\n 3 The state is incorrect; of course the prosecution led the jury to \\n\\n 4 believe that Jeannot had actually made the statement McGinn \\n\\n 5 recounted. McGinn testified that, “I knew Detective McHugh was in \\n\\n 6 talking to Mr. Herva Jeannot,” and that, “I believe that Herva Jeannot \\n\\n 7 was relaying some of the events that really took place that night.” T. \\n\\n 8 620. The prosecution never disavowed that Jeannot had made the \\n\\n 9 statement, and it even recounted the statement in its summation. And \\n\\n10 that very statement was the reason for the Bruton severance in the first \\n\\n11 place. Thus, Jeannot was indeed an out‐of‐court “witness” subject to \\n\\n12 the cross‐examination requirements of the Confrontation Clause.15 \\n\\n\\n\\n\\n 15\\n A witness need only recount the critical substance of the out‐of‐court statement \\n to implicate the Confrontation Clause. See Ryan v. Miller, 303 F.3d 231, 248–49 (2d \\n Cir. 2002) (granting section 2254 petition due to non‐harmless Confrontation \\n Clause violation, stating that “[i]f the substance of the prohibited testimony is \\n evident even though it was not introduced in the prohibited form, the testimony \\n is still inadmissible,” and collecting cases); Ocampo v. Vail, 649 F.3d 1098, 1108–11 \\n (9th Cir. 2011) (“Supreme Court law . . . clearly establishe[s] that testimony from \\n\\n 28\\n\\n \\n\\n\\n\\n\\n 1 B. The Admission of Jeannot’s Statement Was Clearly Barred \\n 2 by Bruton \\n 3 \\n 4 With the jury having heard this expressly incriminating \\n\\n 5 statement from Jeannot, the only reasonable conclusion was that the \\n\\n 6 Confrontation Clause was violated under Bruton. The risk that the \\n\\n 7 jury would consider Jeannot’s statement for its truth was simply too \\n\\n 8 great to allow the jury to hear it, absent cross‐examination of Jeannot. \\n\\n 9 Indeed, “the overwhelming probability” of jurors’ inability to “thrust \\n\\n10 out of mind” express “testimony that ‘the defendant helped me \\n\\n11 commit the crime’ . . . is the foundation of Bruton.” Richardson, 481 U.S. \\n\\n12 at 208 (emphasis added); see also Bruton, 391 U.S. at 129 (“The \\n\\n13 Government should not have the windfall of having the jury be \\n\\n14 influenced by evidence against a defendant which, as a matter of law, \\n\\n15 they should not consider but which they cannot put out of their \\n\\n16 minds.”) (internal quotation marks and citation omitted) (overruling \\n\\n\\n\\n which one could determine the critical content of the out‐of‐court statement [is] \\n sufficient to trigger Confrontation Clause concerns.”).\\n\\n\\n\\n 29\\n\\n \\n\\n\\n\\n\\n 1 Delli Paoli v. United States, 352 U.S. 232 (1957), and adopting the \\n\\n 2 reasoning of the dissent in that decision). \\n\\n 3 The Confrontation Clause violation here is even clearer than in \\n\\n 4 Bruton. Detective McGinn did not merely recount Jeannot’s \\n\\n 5 confession implicating Orlando; he also vouched for its veracity. \\n\\n 6 McGinn testified, “I believe that Herva Jeannot was relaying some of \\n\\n 7 the events that really took place that night . . . the truth as to what \\n\\n 8 happened that night,” T. 620 (emphasis added), and “I explained to \\n\\n 9 Mr. Orlando that Herva Jeannot was, in fact, giving up . . . what we felt \\n\\n10 were truer versions of the events of Bobby Calabrese’s murder.”16 T. \\n\\n11 621 (emphasis added). That testimony by McGinn made it even less \\n\\n12 likely than in Bruton that the jury would have obeyed the trial court’s \\n\\n13 limiting instruction. See, e.g., United States v. Forrester, 60 F.3d 52, 63–\\n\\n\\n\\n\\n We acknowledge that the latter statement could possibly be read as McGinn \\n 16\\n\\n explaining only to Orlando rather than to the jury that McGinn and McHugh \\n believed Jeannot was telling the truth about Orlando’s involvement the murder. \\n However, there was no such ambiguity with regard to McGinn’s first statement \\n that he believed Jeannot was relaying what “really took place that night.” T. 620. \\n\\n\\n\\n 30\\n\\n \\n\\n\\n\\n\\n 1 64 (2d Cir. 1995) (discussing the prejudicial impact of government \\n\\n 2 agents vouching for witnesses).\\n\\n 3 Likewise, the prosecution’s summation further undermined \\n\\n 4 any possible effectiveness of the limiting instruction when it \\n\\n 5 reminded the jury of its murder‐for‐hire theory three times and \\n\\n 6 specifically called to its attention McGinn’s testimony that he told \\n\\n 7 Orlando, “[Jeannot’s] telling us everything . . . . He’s telling us he did \\n\\n 8 the shooting and you paid him.” T. 895. But, as discussed below with \\n\\n 9 regard to the harmless error analysis, the evidence—other than \\n\\n10 Jeannot’s statement—that Orlando had hired Jeannot to murder \\n\\n11 Calabrese, was weak. Thus, the likelihood that the jury credited \\n\\n12 Jeannot’s statement was higher even than in Bruton, where the \\n\\n13 Supreme Court did not suggest that the prosecution had undermined \\n\\n14 the limiting instruction.17 \\n\\n\\n\\n 17 We note also that the limiting instruction was decidedly unclear. The trial court \\n instructed the jury to consider the testimony at issue when considering “the \\n circumstances under which Orlando made any statements.” T. 624. McGinn, \\n however, had just told the jury that the “circumstances” which led him to resume \\n\\n 31\\n\\n \\n\\n\\n\\n\\n 1 In opposing Orlando’s petition, the state relies primarily on the \\n\\n 2 Supreme Court’s decision in Tennessee v. Street, 471 U.S. 409 (1985). In \\n\\n 3 Street, the defendant, Street, was tried for murder separately from his \\n\\n 4 alleged accomplice, Peele. Id. at 411. Street had confessed during an \\n\\n 5 interview with police to participating in a burglary and the murder \\n\\n 6 with Peele. Id. \\n\\n 7 In its case‐in‐chief, the state introduced Street’s confession. Id. \\n\\n 8 Street then took the stand during his defense case, and he testified \\n\\n 9 that the police had coerced his confession and that he had not been \\n\\n10 involved in the murder. Id. Street claimed that the police had shown \\n\\n11 him Peele’s confession during his interview and forced Street to give \\n\\n12 the same account as Peele. Id. \\n\\n13 The trial court then permitted the state to introduce in its \\n\\n14 rebuttal case Peele’s confession through the testimony of Sheriff \\n\\n\\n\\n interrogating Orlando were that “Herva Jeannot was relaying some of the events \\n that really took place that night.” T. 620. By contrast, even in Bruton, the jury \\n instructions were “concededly clear.” Bruton, 391 U.S. at 137. \\n\\n\\n\\n 32\\n\\n \\n\\n\\n\\n\\n 1 Papantoniou, the police officer who had taken it. Id. at 411–12. The \\n\\n 2 state showed the obvious differences between the two statements to \\n\\n 3 discredit Street’s testimony that his confession had been coerced and \\n\\n 4 that the statements’ claimed similarities demonstrated the coercion. \\n\\n 5 Id. at 412. Both at the time the police officer recounted Peele’s \\n\\n 6 statement and in its jury instructions, the trial court instructed the jury \\n\\n 7 that Peele’s statement was admitted not for its truth, but rather only \\n\\n 8 to rebut Street’s contention that his confession was coerced. Id. Peele \\n\\n 9 did not testify at Street’s trial and, thus, could not be cross‐examined \\n\\n10 about his statement. \\n\\n11 The Supreme Court affirmed Street’s murder conviction. Id. at \\n\\n12 417. According to the Court, “[t]he nonhearsay aspect of Peeleʹs \\n\\n13 confession—not to prove what happened at the murder scene but to \\n\\n14 prove what happened when respondent confessed—raises no \\n\\n15 Confrontation Clause concerns. The Clauseʹs fundamental role in \\n\\n16 protecting the right of cross‐examination . . . was [thus] satisfied by \\n\\n\\n\\n\\n 33\\n\\n \\n\\n\\n\\n\\n 1 Sheriff Papantoniouʹs presence on the stand.” Id. at 414. After all, the \\n\\n 2 Supreme Court stated, “[i]f [Street’s] counsel doubted that [the \\n\\n 3 accomplice’s] confession was accurately recounted, he was free to \\n\\n 4 cross‐examine the Sheriff. By cross‐examination [Street’s] counsel \\n\\n 5 could also challenge Sheriff Papantoniou’s testimony that he did not \\n\\n 6 read from Peeleʹs statement and direct respondent to say the same \\n\\n 7 thing. In short, the State’s rebuttal witness against [Street] was not \\n\\n 8 Peele, but Sheriff Papantoniou.” Id. \\n\\n 9 The Court in Street went on to acknowledge that its conclusion \\n\\n10 depended on the “crucial assumption” that the jurors followed the \\n\\n11 trial court’s limiting instructions. Id. at 415. There, as in Bruton, \\n\\n12 Street’s accomplice had expressly implicated him in the crime. But \\n\\n13 unlike in Bruton, Street had placed the state in the position of not \\n\\n14 being able to effectively challenge Street’s testimony that his \\n\\n15 confession was coerced. And “the State’s most important piece of \\n\\n16 substantive evidence was [Street’s] confession.” Id. The only \\n\\n\\n\\n\\n 34\\n\\n \\n\\n\\n\\n\\n 1 available way to rebut Street’s contention of a coerced confession was \\n\\n 2 to compare Peele’s confession with Street’s; if they were different, that \\n\\n 3 would tend to show that Street’s coercion testimony was not credible. \\n\\n 4 See id. at 415–16. And so, if the trial court in Street had not allowed the \\n\\n 5 accomplice’s confession to be brought before the jury, that “would \\n\\n 6 have been at odds with the Confrontation Clause’s very mission—to \\n\\n 7 advance the accuracy of the truth‐determining process.” Id. at 415. \\n\\n 8 Thus, the Court in Street found, unlike in Bruton, that there were \\n\\n 9 “no alternatives [but allowing admission of the accomplice’s \\n\\n10 confession] that would have both assured the integrity of the trial’s \\n\\n11 truth‐seeking function and eliminated the risk of the jury’s improper \\n\\n12 use of evidence.” Id. \\n\\n13 Notably, in its conclusion, the Court in Street also took care to \\n\\n14 emphasize that the “prosecutor’s questions and closing argument” \\n\\n15 had done nothing to distract the jury from the accomplice confession’s \\n\\n16 “distinctive and limited purpose.” Id. at 417. It was only “in this \\n\\n\\n\\n\\n 35\\n\\n \\n\\n\\n\\n\\n 1 context” that the trial judge’s instructions were sufficient to prevent a \\n\\n 2 Confrontation Clause violation. Id. (emphasis added). \\n\\n 3 This case is very different from Street. The prosecution argued \\n\\n 4 that Jeannot’s statement merely showed “context” for why Orlando \\n\\n 5 changed his statement. But Jeannot’s statement went far beyond any \\n\\n 6 limited value in showing why Orlando changed his account of what \\n\\n 7 happened that night. The prosecution elicited testimony from \\n\\n 8 Detective McGinn that Jeannot had actually made the incriminating \\n\\n 9 statement, and McGinn vouched for Jeannot’s account. In its \\n\\n10 summation, the prosecution also repeated Jeannot’s statement, and \\n\\n11 pressed its murder‐for‐hire theory. \\n\\n12 Moreover, the prosecution’s need for the purported “context” \\n\\n13 was of little importance as compared to the need in Street. Orlando’s \\n\\n14 changing his account of the homicide was no different than many \\n\\n15 investigations when suspects make a series of statements; absent the \\n\\n16 substance of Jeannot’s statement, the jury still could have learned that \\n\\n\\n\\n\\n 36\\n\\n \\n\\n\\n\\n\\n 1 after several hours of interrogation, Orlando revised his story and \\n\\n 2 placed himself at the scene of the murder and admitted to lying about \\n\\n 3 his original account. That approach would have significantly \\n\\n 4 advanced the prosecution’s case without a critical narrative gap and, \\n\\n 5 accordingly, the “truth‐seeking function” of the trial would not have \\n\\n 6 been impeded in a way comparable to Street. See id. at 415–16. Nor \\n\\n 7 did Orlando take the stand at his trial, and so the credibility of his \\n\\n 8 own trial testimony was not an issue, unlike in Street where the state \\n\\n 9 otherwise would not have been able to challenge Street’s principal \\n\\n10 defense of coercion in giving his statement. \\n\\n11 To extend Street to the situation presented here would \\n\\n12 eviscerate the core protection of Bruton. To allow admission of \\n\\n13 Jeannot’s statement through McGinn would permit the admission of \\n\\n14 inculpatory statements of non‐testifying codefendants whenever the \\n\\n15 defendant changed his initial statement to investigators after \\n\\n16 investigators told the defendant of an accomplice’s incriminating \\n\\n\\n\\n\\n 37\\n\\n \\n\\n\\n\\n\\n1 confession. The prosecution would need only then argue to the trial \\n\\n2 court that the other confession was being shown to the jury just to \\n\\n3 show why there were changes to the original statement.18 19 \\n\\n4 * * * \\n\\n\\n\\n\\n 18 The state also contends that the admission of Jeannot’s statements established \\n “the voluntariness of [Orlando’s] statements.” Respondent’s Br. 30–31, 35. But, \\n unlike Street, Orlando did not contest their voluntariness at trial. And, there was \\n other evidence that Orlando’s statements were voluntary. The detectives testified \\n that Orlando was advised of his Miranda rights and agreed to speak with them, \\n and Orlando indicated that he understood his Miranda rights, was willing to give \\n a statement without speaking with a lawyer or having one present, and that he \\n was “mak[ing] the . . . statement[s] freely and voluntarily.” T. 546. \\n \\n 19 Other circuits have also recognized that Street does not permit the admission of \\n\\n an out‐of‐court accomplice statement merely because it may have some purpose \\n other than for its truth. See, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1172–73 (9th Cir. \\n 2001) (granting section 2254 petition due to Confrontation Clause violation and \\n other constitutional errors, and stating that “[e]ven if the statements [we]re \\n classified as non‐hearsay, they are sufficiently prejudicial that the jury would be \\n unable to consider them only for limited purposes and would consider them for \\n their truth in violation of the Confrontation Clause”) (abrogated on unrelated \\n grounds by Payton v. Woodford, 299 F.3d 815, 828–29 n.11 (9th Cir. 2002), which the \\n Supreme Court then vacated, 538 U.S. 975 (2003)); cf. United States v. Taylor, 569 \\n F.3d 742, 750 (7th Cir. 2009) (finding no Confrontation Clause violation because \\n the out‐of‐court statements were nonhearsay and there were no “complicating \\n circumstances, such as a prosecutor who exploits nonhearsay statements for their truth”) \\n (internal quotation marks and citation omitted) (emphasis added). \\n\\n\\n\\n 38\\n\\n \\n\\n\\n\\n\\n 1 We hold that the Appellate Division unreasonably applied \\n\\n 2 Bruton in concluding that Orlando’s Sixth Amendment right to cross‐\\n\\n 3 examine a witness against him was not violated when the jury heard \\n\\n 4 of Jeannot’s statement implicating Orlando in the murder. To the \\n\\n 5 extent that the Appellate Division applied Street, it also extended that \\n\\n 6 decision unreasonably.20 \\n\\n 7 III. The Error Was Not Harmless \\n\\n 8 As Orlando and the state agree, the improper admission of \\n\\n 9 evidence in violation of the Confrontation Clause is subject to review \\n\\n10 for harmless error. Hendrix v. Smith, 639 F.2d 113, 115 (2d Cir. 1981) \\n\\n11 (citing Chapman v. California, 386 U.S. 18 (1967); Schneble v. Florida, 405 \\n\\n12 U.S. 427 (1972)). When a state court makes a harmless error \\n\\n\\n\\n\\n 20 The state’s reliance on United States v. Logan, 419 F.3d 172 (2d Cir. 2005), is also \\n misplaced. In Logan, the coconspirators’ statements concerning an alibi were \\n admitted only to show the existence of a conspiracy. Id. at 176–78. Moreover, the \\n statements were not admitted for their truth but—to the contrary—were shown to \\n be untruthful. Id. Here, Jeannot’s statement—as recounted by Detective \\n McGinn—was consistent with the state’s theory and was specifically utilized by \\n the state to support that theory. \\n \\n\\n 39\\n\\n \\n\\n\\n\\n\\n 1 determination on direct appeal, we owe the “harmlessness \\n\\n 2 determination itself” deference under the Antiterrorism and Effective \\n\\n 3 Death Penalty Act of 1996 (“AEDPA”). Ayala, 135 S. Ct. at 2199. Here, \\n\\n 4 because the Appellate Division did not determine that the admission \\n\\n 5 of McGinn’s testimony as to Jeannot’s statements was harmless, we \\n\\n 6 owe no deference to the Appellate Division on that issue. E.g., Cotto \\n\\n 7 v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003) (“In this \\n\\n 8 case, harmless error was never reached in the state courts, and there \\n\\n 9 is therefore no state ruling which commands AEDPA deference.”). \\n\\n10 An error was harmless unless it resulted in “actual prejudice,” \\n\\n11 Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. \\n\\n12 Abrahamson, 507 U.S. 619, 637 (1993)), meaning that a court has “grave \\n\\n13 doubt about whether” the error “had ‘substantial and injurious effect \\n\\n14 or influence in determining the jury’s verdict.’” Id. at 2198 (quoting \\n\\n15 O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). This “Brecht standard” \\n\\n\\n\\n\\n 40\\n\\n \\n\\n\\n\\n\\n 1 requires “more than a ‘reasonable possibility’ that the error was \\n\\n 2 harmful.” Id. (quoting Brecht, 507 U.S. at 637). \\n\\n 3 We have little doubt that the improperly admitted testimony as \\n\\n 4 to Jeannot’s statement had such a powerful effect on the jury. The \\n\\n 5 prosecution’s theory was that Orlando was guilty of murder for \\n\\n 6 acting as Jeannot’s accomplice by paying Jeannot to shoot Calabrese \\n\\n 7 and helping Jeannot to do so. The trial judge instructed the jury that, \\n\\n 8 to convict Orlando, the prosecution had to prove that Orlando acted \\n\\n 9 in concert with Jeannot. The state argues that, even absent admission \\n\\n10 of Jeannot’s confession through McGinn’s testimony, the evidence of \\n\\n11 Orlando’s guilt was “nothing short of overwhelming.” Respondent’s \\n\\n12 Br. at 47. \\n\\n13 In support, the state contends that Orlando’s $17,000 gambling \\n\\n14 debt to Calabrese was compelling evidence of motive; that the \\n\\n15 hundred‐dollar bills found in the homes of both Orlando and Jeannot \\n\\n16 after the murder were evidence of the murder‐for‐hire transaction; \\n\\n\\n\\n\\n 41\\n\\n \\n\\n\\n\\n\\n 1 and that forensic testimony as to the location of bullet holes in \\n\\n 2 Calabrese’s sweatshirt showed that Orlando pulled the sweatshirt \\n\\n 3 over Calabrese’s head before Jeannot shot him. Finally, the state \\n\\n 4 emphasizes that the video evidence, as well as cell site evidence, \\n\\n 5 showed that Orlando was at the location where the homicide \\n\\n 6 occurred. We address these arguments in turn. \\n\\n 7 A. Evidence of Motive \\n\\n 8 Although it was undisputed that Orlando owed Calabrese \\n\\n 9 $17,000, the evidence showed that Orlando had won $27,000 in the \\n\\n10 month prior. Accordingly, he had net winnings of $10,000 over a six‐\\n\\n11 week period. Moreover, the evidence showed that Orlando had \\n\\n12 $2,700 in cash in his residence after the murder (and after he \\n\\n13 purportedly paid Jeannot to commit the murder). And so, the \\n\\n14 evidence that Orlando lacked the funds to pay Calabrese was slight.21 \\n\\n15 \\n\\n\\n\\n 21 The state also did not introduce evidence of Orlando’s bank records at trial. \\n\\n\\n\\n 42\\n\\n \\n\\n\\n\\n\\n 1 Moreover, it strains credulity that Orlando would have \\n\\n 2 believed that murdering a courier in an illegal gambling operation \\n\\n 3 would erase a gambling debt of $17,000 and prevent attempts by the \\n\\n 4 other members of the gambling operation to seek payment. The \\n\\n 5 prosecution argued that Orlando’s plan was to murder Calabrese and \\n\\n 6 then claim to Calabrese’s superiors in the illegal sports betting \\n\\n 7 organization that he had paid Calabrese (and that Calabrese must \\n\\n 8 have been robbed and murdered by someone else). But it certainly is \\n\\n 9 not obvious that Orlando would have thought such a plan would \\n\\n10 work. \\n\\n11 B. Evidence of a Murder‐for‐Hire Transaction \\n\\n12 Similarly, the discovery of a small number of one‐hundred‐\\n\\n13 dollar bills in the homes of both Orlando and Jeannot after the murder \\n\\n14 was not particularly probative of a murder‐for‐hire transaction. The \\n\\n15 state asserts that the hundred‐dollar bill design with “the large \\n\\n16 picture of Ben Franklin” was “then new” and, thus so rare as to mean \\n\\n\\n\\n\\n 43\\n\\n \\n\\n\\n\\n\\n 1 Jeannot’s bills likely came from Orlando. Respondent’s Br. at 48. But \\n\\n 2 that design began circulating in 1996,22 eight years before the murder \\n\\n 3 of Calabrese. A jury thus would not have found it remarkable that \\n\\n 4 the bills in both homes had the same design. Nor did the U.S. \\n\\n 5 currency found in Jeannot’s home have any fingerprints, sequential \\n\\n 6 serial numbers, or DNA that might have linked them to a transaction \\n\\n 7 between Orlando and Jeannot. \\n\\n 8 In addition, only $500 in bills was found in Jeannot’s home. It \\n\\n 9 is entirely unclear why Jeannot would accept only $500 to commit a \\n\\n10 murder, particularly given that Jeannot undisputedly knew Orlando \\n\\n11 owed Calabrese many times that amount. The prosecution suggested \\n\\n12 that the $500 found in Jeannot’s home may have been only a small \\n\\n13 portion of the murder‐for‐hire payment. But the prosecution \\n\\n\\n\\n\\n 22 See, e.g., Carl Rochelle, Redesigned $100 Bill Aimed at Foiling Counterfeiters, CNN \\n (Mar. 25, 1996, 1:35 AM), http://edition.cnn.com/US/9603/new_100_bill/index.html \\n (stating that the redesigned $100 bills with a larger Ben Franklin were to go into \\n circulation on March 25, 1996). \\n\\n\\n\\n 44\\n\\n \\n\\n\\n\\n\\n 1 presented no theory or evidence as to what may have happened to \\n\\n 2 any cash payment that exceeded the $500 found. \\n\\n 3 C. Forensic Evidence \\n\\n 4 We turn next to the expert testimony of two other Nassau \\n\\n 5 County detectives and Nassau County Deputy Chief Medical \\n\\n 6 Examiner DeMartino regarding the bullet holes in Calabrese’s \\n\\n 7 sweatshirt. The state argues that forensic evidence clearly established \\n\\n 8 that, just before Jeannot fired the first shot, Orlando pulled \\n\\n 9 Calabrese’s sweatshirt over Calabrese’s head to help Jeannot shoot \\n\\n10 him.23 \\n\\n11 We disagree that this evidence was persuasive of Orlando \\n\\n12 helping Jeannot shoot Calabrese. First, the location of the bullet holes \\n\\n13 did not clearly establish that Calabrese’s sweatshirt had been pulled \\n\\n14 up over his head at the time the first shot was fired. That is the \\n\\n\\n\\n The district court agreed with that argument, stating that the forensic evidence \\n 23\\n\\n gave rise to “an inescapable inference . . . that Orlando . . . pulled the sweatshirt \\n over Calabreseʹs head.” Orlando, 246 F. Supp. 3d at 576. \\n\\n\\n\\n 45\\n\\n \\n\\n\\n\\n\\n 1 relevant time that, according to the prosecution, Orlando would have \\n\\n 2 been pulling up the sweatshirt. The first shot undisputedly went \\n\\n 3 through Calabrese’s right forearm, making holes only in his \\n\\n 4 sweatshirt sleeve, and the bullet then lodged in the right side of \\n\\n 5 Calabrese’s head. The prosecution suggested to the jury that Orlando \\n\\n 6 had pulled the sweatshirt so far over Calabrese’s head that the back \\n\\n 7 of his head was exposed, allowing the first bullet to pass through the \\n\\n 8 sleeve without creating any other holes in the sweatshirt. That is \\n\\n 9 possible, but that evidence is just as—if not more—consistent with \\n\\n10 Calabrese, for example, putting up his arms in a defensive position, \\n\\n11 and the first bullet passing through his right sleeve and arm, and then, \\n\\n12 into his uncovered24 head. Indeed, the medical examiner DeMartino \\n\\n13 concluded that the wound in Calabrese’s right arm was consistent \\n\\n\\n\\n\\n 24 Nassau County Forensic Evidence Bureau Detective Kovar, whom the \\n prosecution called to testify as to trace forensic evidence at the scene of the crime, \\n agreed that the hood of the sweatshirt was not covering Calabrese’s head at the \\n time the first shot was fired. \\n\\n\\n\\n 46\\n\\n \\n\\n\\n\\n\\n 1 with Calabrese having raised his arm in a defensive manner prior to \\n\\n 2 the first shot being fired. Or, even if the sweatshirt had been pulled \\n\\n 3 up, it could have been done by Jeannot prior to shooting Calabrese. \\n\\n 4 By contrast, the forensic evidence was clearer that at the time \\n\\n 5 the second and third shots were fired into the back of Calabrese’s \\n\\n 6 head, his sweatshirt was pulled up over his head. There were holes \\n\\n 7 in the back of Calabrese’s sweatshirt that matched up with the bullet \\n\\n 8 wounds in the back of his head. But, it is not disputed that at the time \\n\\n 9 the second and third shots were fired, Calabrese was already lying, \\n\\n10 face‐down, on the ground from the effect of the first shot. Maybe \\n\\n11 Orlando pulled the sweatshirt over Calabrese’s head after the first \\n\\n12 shot; maybe it was Jeannot who pulled up the sweatshirt at this point \\n\\n13 to avoid blood splatter; or maybe the sweatshirt came upward as \\n\\n14 Calabrese fell to the ground and struggled after the first shot. In any \\n\\n15 event, the only obvious conclusions from the sweatshirt and autopsy \\n\\n16 evidence were that Calabrese was first shot by Jeannot from behind, \\n\\n\\n\\n\\n 47\\n\\n \\n\\n\\n\\n\\n 1 while he was standing up, and then twice more while lying on the \\n\\n 2 ground, with the sweatshirt over his head for the second and third \\n\\n 3 shots. But it is far from clear how the sweatshirt ended up over his \\n\\n 4 head. \\n\\n 5 The state introduced no other forensic evidence pointing to \\n\\n 6 Orlando, such as DNA, fingerprints, or blood in his car or on his \\n\\n 7 clothing. In sum, the forensic evidence to support the prosecution’s \\n\\n 8 accomplice theory was insubstantial. \\n\\n 9 D. Orlando’s Choice of a Meeting Location \\n\\n10 The evidence that Orlando chose a discreet meeting location to \\n\\n11 pay his debt to Calabrese was also only minimally probative of his \\n\\n12 guilt. Orlando told investigators that he and Calabrese had arranged \\n\\n13 to meet on December 3 in Island Park, and that he called Calabrese \\n\\n14 shortly beforehand to change the meeting to a more secluded place \\n\\n15 because there were several people within sight of the planned \\n\\n16 meeting location. \\n\\n\\n\\n\\n 48\\n\\n \\n\\n\\n\\n\\n 1 Jurors could have credited Orlando’s choice of meeting \\n\\n 2 location as part of a plan to murder Calabrese, but they could also \\n\\n 3 reasonably have accepted that Orlando was concerned about being \\n\\n 4 seen engaging in an illegal $17,000 gambling transaction. \\n\\n 5 E. Evidence of an Attempt to Create an Alibi \\n\\n 6 The prosecution also contended that the jury could have \\n\\n 7 construed Orlando’s several stops after the murder as evidence of an \\n\\n 8 attempt to manufacture a false alibi. Orlando explained the stops as \\n\\n 9 an attempt to be seen with Jeannot, so that Jeannot could not blame \\n\\n10 the murder on Orlando. But, a jury could instead have reasonably \\n\\n11 inferred that, given Jeannot’s purported threat to Orlando to maintain \\n\\n12 his silence, Orlando’s behavior after the murder was consistent with \\n\\n13 an attempt to put Jeannot at ease that Orlando would not report \\n\\n14 Jeannot’s role in the murder. \\n\\n15 \\n\\n16 \\n\\n\\n\\n\\n 49\\n\\n \\n\\n\\n\\n\\n 1 F. Evidence Orlando Was at the Murder Scene \\n\\n 2 Lastly, we acknowledge that the prosecution needed only to \\n\\n 3 convict Orlando of murder and not to prove specifically its murder‐\\n\\n 4 for‐hire theory. In that regard, the state emphasizes, for example, the \\n\\n 5 evidence that Orlando was present at the murder scene. In addition, \\n\\n 6 Orlando’s coworker Barbara Diamant testified that Orlando told her \\n\\n 7 the morning after the homicide that Calabrese had been shot in the \\n\\n 8 back of the head three times, before this became public information. \\n\\n 9 However, that Orlando was present for the murder was not disputed \\n\\n10 by him in his second statement or at trial, and as discussed above, the \\n\\n11 evidence that Orlando assisted the murder in some way was made \\n\\n12 substantially stronger by Jeannot’s incriminating confession. \\n\\n13 * * * \\n\\n14 In sum, considered both in isolation and cumulatively, the \\n\\n15 properly admitted evidence of Orlando’s guilt leaves us with “grave \\n\\n16 doubt” about whether the trial court’s error substantially and \\n\\n\\n\\n\\n 50\\n\\n \\n\\n\\n\\n\\n 1 injuriously influenced the jury’s verdict. See Davis, 135 S. Ct. at 2198. \\n\\n 2 McGinn’s testimony of Jeannot’s incriminating statement was \\n\\n 3 essential in persuading the jury of Orlando’s guilt and meets the bar \\n\\n 4 set by the Brecht standard. Accordingly, the constitutional error in \\n\\n 5 this case was not harmless. \\n\\n 6 CONCLUSION \\n\\n 7 For the foregoing reasons, we REVERSE the district court’s \\n\\n 8 denial of Orlando’s petition, and REMAND the case to the district \\n\\n 9 court with instructions to issue a writ of habeas corpus to Orlando on \\n\\n10 the sixtieth calendar day after the issuance of our mandate unless the \\n\\n11 District Attorney of Nassau County has, by that time, taken concrete \\n\\n12 and substantial steps to expeditiously retry Orlando. The mandate \\n\\n13 shall issue forthwith. \\n\\n\\n\\n\\n 51\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":491,"cells":{"id":{"kind":"number","value":8443871,"string":"8,443,871"},"name":{"kind":"string","value":"Mark ORLANDO v. NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE"},"name_abbreviation":{"kind":"string","value":"Orlando v. Nassau Cnty. Dist. Attorney's Office"},"decision_date":{"kind":"string","value":"2019-02-11"},"docket_number":{"kind":"string","value":"No. 17-2390; August Term, 2017"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Droney, Jacobs, Shea\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415299/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415300/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"DRONEY"},"judge2":{"kind":"string","value":"JACOBS"},"judge3":{"kind":"string","value":"SHEA"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443871/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mark ORLANDO v. NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-11\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mark ORLANDO v. NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-11\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":492,"cells":{"id":{"kind":"number","value":4589716,"string":"4,589,716"},"name":{"kind":"string","value":"Hazel B. PAPPAS, Individually and as Administratix and Sole Beneficiary of the Estate of James Pappas, Cassandra Pappas, Markos Pappas, Plaintiffs-Appellants, v. PHILIP MORRIS, INC., AKA Philip Morris USA, AKA Philip Morris USA Inc., Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Pappas v. Philip Morris, Inc."},"decision_date":{"kind":"string","value":"2019-02-12"},"docket_number":{"kind":"string","value":"Docket 17-3842-cv; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lynch, Hall, Engelmayer\", \"parties\": \"\", \"opinions\": [{\"author\": \"GERARD E. LYNCH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-3842-cv\\nPappas v. Philip Morris, Inc.\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n August Term, 2018\\n\\n Submitted: November 5, 2018 Decided: February 12, 2019\\n\\n Docket No. 17-3842-cv\\n\\n\\n\\n HAZEL B. PAPPAS, INDIVIDUALLY AND AS ADMINISTRATIX AND SOLE BENEFICIARY OF\\n THE ESTATE OF JAMES PAPPAS, CASSANDRA PAPPAS, MARKOS PAPPAS,\\n\\n\\n Plaintiffs-Appellants,\\n\\n — v. —\\n\\n PHILIP MORRIS, INC., AKA PHILIP MORRIS USA, AKA PHILIP MORRIS USA INC.,\\n\\n Defendant-Appellee.\\n\\n\\n\\n\\nB e f o r e:\\n\\n LYNCH and HALL, Circuit Judges, and ENGELMAYER, District Judge.*\\n\\n\\n\\n\\n Hazel B. Pappas, pro se, seeks to pursue several Connecticut state-law\\nliability claims against Philip Morris, Inc., on behalf of the estate of her late\\n\\n\\n*\\n Judge Paul A. Engelmayer, of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n\\fhusband, who died of respiratory and heart diseases after years of smoking\\nMarlboro cigarettes. The district court dismissed certain of Pappas’s claims,\\nholding that Connecticut law would not allow her to represent the estate pro se,\\nand dismissed her other claims on the ground that they were barred by the\\nstatute of limitations. The order of the district court is AFFIRMED in part and\\nVACATED in part, and the case is REMANDED for further proceedings.\\n\\n\\n\\n\\n Hazel B. Pappas, pro se, Cassandra Pappas, pro se, New Haven,\\n CT; Markos Pappas, pro se, Berlin, NH, for Plaintiffs-\\n Appellants.\\n\\n Keri L. Arnold, Arnold & Porter Kaye Scholer LLP, New York,\\n NY; Paul W. Rodney, Arnold & Porter Kaye Scholer\\n LLP, Denver, CO, for Defendant-Appellee.\\n\\n\\n\\nGERARD E. LYNCH, Circuit Judge:\\n\\n Plaintiff-Appellant Hazel B. Pappas (“Pappas”) seeks to bring several\\n\\nConnecticut law claims, pro se, against Defendant-Appellee Philip Morris, Inc.\\n\\n(“Philip Morris”), on behalf of the estate of her late husband, who died of\\n\\nrespiratory and heart diseases after years of smoking Marlboro cigarettes,\\n\\nmanufactured by Philip Morris. The United States District Court for the District\\n\\nof Connecticut (Alvin W. Thompson, J.) dismissed Pappas’s complaint, holding\\n\\nthat certain of her claims were barred by the statute of limitations and that she\\n\\ncould not bring the remaining claims pro se, since with respect to those claims she\\n\\n\\n 2\\n\\fwas representing not herself, but the estate of her late husband. Pappas appealed.\\n\\nFor the reasons that follow, we VACATE the dismissal of Pappas’s claim under\\n\\nthe Connecticut Product Liability Act (“CPLA”), her derivative claim for loss of\\n\\nspousal consortium, and the claim of Plaintiffs-Appellants Cassandra and\\n\\nMarkos Pappas for loss of parental consortium, and REMAND for further\\n\\nproceedings. We AFFIRM the district court’s order in all other respects.\\n\\n BACKGROUND\\n\\n\\n Acting pro se, Pappas filed a products liability suit against Philip Morris in\\n\\nthe district court pursuant to its diversity jurisdiction, asserting claims both on\\n\\nher own behalf and on behalf of her late husband’s estate, of which she is\\n\\nAdministratix. She alleges that in or about the late 1950s, her late husband, James\\n\\nPappas, was lured into cigarette smoking by a marketing strategy and conspiracy\\n\\namong tobacco companies to glamorize smoking and portray it as a normal and\\n\\nnon-dangerous part of American culture. For over five decades, James Pappas\\n\\nsmoked Marlboro cigarettes manufactured by Philip Morris. As a result of\\n\\nsmoking cigarettes, James Pappas contracted respiratory and heart diseases that\\n\\nled to his death on June 19, 2013, at the age of 79. In or about March 2016, a\\n\\nmedical professional informed Pappas that James Pappas’s smoking Marlboro\\n\\n\\n 3\\n\\fcigarettes caused and aggravated the respiratory and heart disease that killed\\n\\nhim.\\n\\n\\n On June 15, 2016, Pappas, and her two children with James, Cassandra and\\n\\nMarkos Pappas, filed a complaint stating claims against Philip Morris for (1)\\n\\nviolating the CPLA, Conn. Gen. Stat. § 52–572m, et seq., and Connecticut Unfair\\n\\nTrade Practices Act, Conn. Gen. Stat. § 42–110a, et seq., (“CUTPA”); (2) loss of\\n\\nspousal consortium; (3) loss of parental consortium; and (4) negligent infliction of\\n\\nemotional distress (“NIED”). In support of Pappas’s ability to litigate the action\\n\\npro se, Cassandra and Markos Pappas filed disclaimers of interest in their father’s\\n\\nestate, and Pappas filed an affidavit stating that to her knowledge James Pappas\\n\\nhas no known creditors or debtors. As a result, Pappas contends that she is the\\n\\nsole beneficiary of James Pappas’s estate.\\n\\n\\n The district court held a hearing to determine, among other things,\\n\\nwhether Pappas could represent the estate pro se. After briefing by the parties, the\\n\\ndistrict court dismissed Pappas’s, Cassandra’s, and Markos’s complaint under\\n\\nFed. R. Civ. P. 12(b)(1) and 12(b)(6). Pappas v. Philip Morris USA Inc., No. 3:16-cv-\\n\\n932(AWT), 2017 WL 6629298 (D. Conn. June 21, 2017).\\n\\n\\n\\n\\n 4\\n\\f The district court dismissed Pappas’s CPLA claim, which belongs to James\\n\\nPappas’s estate, on the ground that Pappas could not bring that claim pro se. The\\n\\ncourt held that because it was sitting in diversity jurisdiction, it had to apply\\n\\nConnecticut law to the question of whether Pappas could represent the estate pro\\n\\nse, and under Ellis v. Cohen, 982 A.2d 1130 (Conn. App. Ct. 2009), she could not\\n\\ndo so. Ellis explains that under Connecticut law, a litigant may appear pro se only\\n\\nto represent her own cause, and that individuals may not appear pro se when\\n\\nthey are suing in a representative capacity. Id. at 1133. The district court rejected\\n\\nthe applicability of a Second Circuit case, Guest v. Hansen, 603 F.3d 15 (2d Cir.\\n\\n2010), in which this Court held that the administrator of an estate could represent\\n\\nthe estate pro se under certain conditions, on the grounds that Guest was decided\\n\\nunder New York law. The district court also dismissed Pappas’s loss of spousal\\n\\nconsortium claim, and Cassandra’s and Markos’s loss of parental consortium\\n\\nclaims, on the ground that those claims were derivative of the dismissed CPLA\\n\\nclaim.\\n\\n\\n The district court also dismissed the CUTPA claims and NIED claims as\\n\\ntime-barred by their respective three- and two-year statutes of limitations. The\\n\\ndistrict court further ruled that, even if the CUTPA claims were not time-barred,\\n\\n\\n 5\\n\\fPappas’s CUTPA claims would still fail because the CPLA, not CUTPA, provides\\n\\nthe exclusive remedy under Connecticut law for a party seeking recompense for\\n\\ninjuries caused by a product defect.\\n\\n\\n Having thus dismissed all the claims in the complaint, the district court\\n\\nordered the case closed. Pappas and her children moved to amend the judgment\\n\\nunder Fed. R. Civ. P. 59(e), asserting numerous arguments. The district court\\n\\ndenied the motion. Pappas and her children timely appealed.\\n\\n DISCUSSION\\n\\n We write to correct the district court’s error in applying Connecticut law to\\n\\nthe question of whether Pappas can represent the estate of her late husband pro\\n\\nse, an issue we review de novo. See Principal Nat’l Life Ins. Co. v. Coassin, 884 F.3d\\n\\n130, 134 (2d Cir. 2018).\\n\\nI. The Conflict Between Federal and Connecticut Law\\n\\n Connecticut law and federal law appear to conflict on the issue of whether\\n\\nPappas can represent the estate pro se. In Guest, this Court held that a pro se\\n\\nplaintiff could represent an estate when the plaintiff is the estate’s only\\n\\nbeneficiary and the estate has no creditors. 603 F.3d at 21. Contrary to the district\\n\\ncourt’s belief, that holding was not based on New York law. Although the\\n\\n\\n 6\\n\\fjurisdiction of the Guest Court was based on diversity of citizenship, and the\\n\\nCourt applied New York law to the substantive issues before it, id. at 21–22, the\\n\\nportion of the Guest opinion discussing whether the estate could be represented\\n\\nby a pro se litigant relied exclusively on 28 U.S.C. § 1654 and federal cases\\n\\ngoverning the practice of law in federal courts, referencing New York law only to\\n\\nidentify the nature of the substantive claims being pursued. Id. at 20–21.\\n\\n The Guest holding was rooted in § 1654. That statute provides that “[i]n all\\n\\ncourts of the United States the parties may plead and conduct their own cases\\n\\npersonally or by counsel as [permitted] by the rules of such courts, respectively.”\\n\\n28 U.S.C. § 1654. As the Court explained, § 1654 limits parties to pleading and\\n\\nconducting their own cases personally, because “the law contains so many\\n\\nesoteric pitfalls for an untrained advocate . . . that the risk of inadvertent waiver\\n\\nor abandonment of an issue is too high for us to allow a pro se litigant to represent\\n\\nanother person.” Guest, 603 F.3d at 20. Nevertheless, the Court continued, when\\n\\nthe administrator and sole beneficiary of an estate with no creditors seeks to\\n\\nappear pro se on behalf of the estate, she is in fact appearing solely on her own\\n\\nbehalf, because she is the only party affected by the disposition of the suit. Id. at\\n\\n21. Under those circumstances, the assignment of the sole beneficiary’s claims to\\n\\n\\n 7\\n\\fa paper entity—the estate—rather than to the beneficiary herself, is only a legal\\n\\nfiction. Id.\\n\\n Connecticut law apparently provides otherwise. In Connecticut, “a person\\n\\nwho has not been admitted as an attorney . . . shall not . . . [p]ractice law or\\n\\nappear as an attorney-at-law for another, in any court of record in [Connecticut],”\\n\\nConn. Gen. Stat. Ann. § 51–88(a), and Connecticut state courts have interpreted\\n\\nthat statute to prohibit pro se representation of an estate. See e.g., Milner v. Beckett\\n\\nCorp., No. HHDCV115035597S, 2012 WL 527628, at *3 (Conn. Super. Ct. Jan. 25,\\n\\n2012) (“[T]he plaintiff could not, in a pro se capacity, represent his father’s\\n\\nestate.”); Sedich v. Waynik, No. CV 970348505S, 1998 WL 328043 at *1 (Conn.\\n\\nSuper. Ct. June 15, 1998) (“An administrator is the personal representative of the\\n\\nestate and its beneficiaries and cannot bring a suit as a pro se.”) (internal\\n\\nquotations marks omitted). In Ellis, 982 A.2d at 1133–34, the Appellate Court of\\n\\nConnecticut held that the executor of an estate has no right of self-representation,\\n\\nand thus an executor’s pro se appearance in court on behalf of the estate\\n\\nconstituted the unauthorized practice of law.1 Because Connecticut law and\\n\\n\\n1\\n We note that no Connecticut court has addressed the narrow question of\\nwhether there is an exception to the rule that a pro se litigant can only represent\\nherself, where the pro se litigant seeks to represent an estate that has no creditors\\n\\n 8\\n\\ffederal law are in conflict on this point, we must decide which applies in the case\\n\\nbefore us.\\n\\nII. The Erie Doctrine\\n\\n The district court held that it was required to apply Connecticut law on\\n\\nthis question under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). In Erie,\\n\\nthe Supreme Court construed the Rules of Decision Act, § 34 of the Judiciary Act\\n\\nof 1789, which provides that: “[t]he laws of the several states, except where the\\n\\nConstitution or treaties of the United States or Acts of Congress otherwise\\n\\nrequire or provide, shall be regarded as rules of decision in civil actions in the\\n\\ncourts of the United States, in cases where they apply.” 28 U.S.C. § 1652. Erie\\n\\nstands for the proposition that, as a general matter, a federal district court sitting\\n\\nin diversity jurisdiction must apply the substantive law of the state in which it sits.\\n\\nSee Erie, 304 U.S. at 78.\\n\\n However, the Constitution also vests Congress with the power “[t]o\\n\\n\\n\\nand of which she is the only beneficiary. Connecticut cases all state the rule\\nbanning pro se litigants from representing anyone other than themselves in\\nabsolute terms, see e.g., Expressway Assocs. II v. Friendly Ice Cream Corp. of\\nConnecticut, 642 A.2d 62, 64 (Conn. App. Ct. 1994), and we found no case\\nsuggesting the existence of any exceptions. Under the circumstances, we assume,\\nas do the parties, that the district court correctly interpreted Connecticut law as\\nnot recognizing the exception adopted as a matter of federal law in Guest.\\n\\n 9\\n\\fconstitute Tribunals inferior to the supreme Court” and “[t]o make all Laws\\n\\nwhich shall be necessary and proper for carrying into Execution” that power.\\n\\nU.S. Const. art I, § 8, cls. 9, 18. Thus, while “Congress has no power to declare\\n\\nsubstantive rules of common law applicable in a state,” Erie, 304 U.S. at 78, “Erie\\n\\nand its offspring cast no doubt on the long-recognized power of Congress to\\n\\nprescribe housekeeping rules for federal courts even though some of those rules\\n\\nwill inevitably differ from comparable state rules,” Hanna v. Plumer, 380 U.S. 460,\\n\\n473 (1965); see Erie, 304 U.S. at 72–73 (“[T]he purpose of [section 34] was merely to\\n\\nmake certain that, in all matters except those in which some federal law is controlling,\\n\\nthe federal courts exercising jurisdiction in diversity of citizenship cases would\\n\\napply as their rules of decision the law of the state . . . .”) (emphasis added).\\n\\n Erie and its progeny thus require us to reconcile two different edicts: the\\n\\ncommand that federal courts must honor applicable state substantive law on the\\n\\none hand, and the integrity of the federal courts as an independent judicial\\n\\nsystem on the other. See 19 Charles Alan Wright et al., Fed. Prac. & Proc. Juris.\\n\\n§ 4501 (3d ed.). Where state and federal law are in conflict, we reconcile those\\n\\nprinciples by asking whether the federal law or rule “regulate[s] matters\\n\\nrationally capable of classification as procedure.” Shady Grove Orthopedic Assocs.,\\n\\n\\n 10\\n\\fP.A. v. Allstate Ins. Co., 559 U.S. 393, 406 (2010) (internal quotation marks\\n\\nomitted); accord Hanna, 380 U.S. at 472 (“[T]he constitutional provision for a\\n\\nfederal court system (augmented by the Necessary and Proper clause) . . .\\n\\nincludes a power to regulate matters which, though falling within the uncertain\\n\\narea between substance and procedure, are rationally capable of classification as\\n\\neither.”). Procedure is “the judicial process for enforcing rights and duties\\n\\nrecognized by substantive law and for justly administering remedy and redress\\n\\nfor disregard or infraction of them,” Hanna, 380 U.S. at 464, while substantive law\\n\\nis the law that governs the rights and obligations of individuals within a given\\n\\njurisdiction, see Shady Grove, 559 U.S. at 407. When deciding what law to apply in\\n\\nfederal court, we also consider whether disregarding the law that would control\\n\\nin state court would significantly affect the result of the litigation in federal court.\\n\\nSee Hanna, 380 U.S. at 466. That “outcome-determination test,” however “cannot\\n\\nbe read without reference to the twin aims of the Erie rule: discouragement of\\n\\nforum-shopping and avoidance of inequitable administration of the laws.” Id. at\\n\\n468.\\n\\nIII. Federal Law Governs Legal Practice Before the Federal Courts\\n\\n The district court misread both Erie and Guest in concluding that\\n\\n\\n 11\\n\\fConnecticut’s rule controlled the circumstances in which a party may appear pro\\n\\nse in federal court. We now make explicit what was implicit in Guest: that § 1654,\\n\\nand federal rules interpreting it, are procedural in nature and therefore must be\\n\\napplied by federal courts in diversity cases. Who may practice law before a\\n\\nfederal court is a matter of procedure—which Congress and the federal courts\\n\\nhave the power to regulate—notwithstanding contrary state law.\\n\\n Federal courts have discretion to adopt such rules as are necessary to carry\\n\\nout the business of the courts. See Frazier v. Heebe, 482 U.S. 641, 645 (1987); Fed. R.\\n\\nCiv. P. 83. That authority includes the regulation of admissions to a court’s own\\n\\nbar. Frazier, 482 U.S. at 645. “The authority to adopt rules relating to admission to\\n\\npractice before the federal courts was delegated by Congress to the federal courts\\n\\n[by] Section 35 of the Judiciary Act of 1789 . . . now codified as 28 U.S.C. § 1654.”\\n\\nBrown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985). Thus, while “attorneys\\n\\npracticing in federal court are charged with . . . the duty to conform to the state\\n\\ncode of professional responsibility,” Shabbir v. Pakistan Int’l Airlines, 443 F. Supp.\\n\\n2d 299, 306 (E.D.N.Y. 2005), district courts have the “right and duty . . . to\\n\\nregulate the proceedings and the counsel who come before [them],” In re\\n\\nSeptember 11 Litig., 236 F.R.D. 164, 172 (S.D.N.Y. 2006).\\n\\n\\n 12\\n\\f The Seventh Circuit said as much in Elustra v. Mineo, 595 F.3d 699 (7th Cir.\\n\\n2010). In Elustra, the Court had to determine the validity of a motion filed by a\\n\\nnon-lawyer mother on behalf of her minor and adult daughters, after the\\n\\ndaughters’ lawyers had been discharged. Id. at 703–04. The Court recognized that\\n\\nits first decision was whether it should look to state or federal law to resolve the\\n\\nproblem. Id. at 704. It noted that, “[o]n the one hand, Fed. R. Civ. P. 17(b)\\n\\nprovides that ‘capacity to sue’ is defined by state law.” Id. But, on the other hand,\\n\\nfederal courts are entitled to use their own procedures, whether jurisdiction is\\n\\nbased on a federal question or on another ground such as diversity of citizenship\\n\\nor supplemental jurisdiction. Id. The Court noted that the validity of a motion\\n\\nfiled by a non-attorney representative had “less to do with the capacity to sue\\n\\nthan it does with the right to act in court, which is normally a matter regulated by\\n\\nthe rules of professional conduct.” Id. Because “[f]ederal courts have the inherent\\n\\nauthority to adopt their own rules . . . federal law [] dictate[d] whether [the\\n\\nmother] was entitled to act for one or more of her three daughters in the way that\\n\\nshe did.” Id.\\n\\n Indeed, district courts regulate, by means of their local rules, who may\\n\\npractice before them. For example, District of Connecticut Local Civil Rule 83.1 is\\n\\n\\n 13\\n\\ftitled “Admission of Attorneys.” Its subsection (a) states that:\\n\\n Any attorney of the Bar of the State of Connecticut or of\\n the bar of any United States District Court, whose\\n professional character is good, may be admitted to\\n practice in this Court upon a Petition for Admission, in\\n form and substance prescribed by subsection (b) of this\\n Rule, after paying the admission fee, taking the proper\\n oath, and signing the Roll of Attorneys Admitted to the\\n Bar of the United States District Court for the District of\\n Connecticut.\\n\\nSubsection (d) also regulates the admission of visiting attorneys by motion. The\\n\\nDistrict of Connecticut thus does not require attorneys appearing before it to be\\n\\nlicensed to practice in Connecticut state courts.\\n\\n The ability of federal courts to regulate those who appear before them\\n\\ncannot be controlled by state law. “The two judicial systems of courts, the state\\n\\njudicatures and the federal judiciary, have autonomous control over the conduct\\n\\nof their officers, among whom . . . lawyers are included.” Theard v. United States,\\n\\n354 U.S. 278, 281 (1957) (lawyers admitted to practice in federal court are not\\n\\nautomatically disbarred when the state disbars them); see United States v. Dinitz,\\n\\n538 F.2d 1214, 1219 (5th Cir. 1976) (“Since attorneys are officers of the courts\\n\\nbefore which they appear, such courts are necessarily vested with the authority,\\n\\nwithin certain limits, to control attorneys’ conduct.”). Both we and the Supreme\\n\\n\\n 14\\n\\fCourt have recognized those principles.\\n\\n In Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir. 1966), we had to\\n\\ndetermine whether a California lawyer who represented a client in federal court\\n\\nin New York, but was not admitted to practice law in either New York state\\n\\ncourts or in the federal district court, could recover attorney’s fees from his client.\\n\\nThe client, who was trying to avoid paying his former lawyer, argued that, under\\n\\nthe circumstances of the case, the New York courts would refuse to grant\\n\\nrecovery to the lawyer. Id. at 165. We rejected that argument, however, holding\\n\\nthat “it is within the power of the federal government to determine who will be\\n\\npermitted to practice in its courts and that this includes allowing compensation\\n\\nfor services rendered in regard to litigation in the federal courts,” even when the\\n\\nattorney would not be able to recover in state court. Id. That is so because “the\\n\\nrules of the federal courts concerning admission of attorneys have long\\n\\nrecognized that experts in federal law should be permitted, when appropriate, to\\n\\nconduct litigation in the federal courts regardless of whether they have been\\n\\nadmitted to practice in the state in which the court sits.” Id. at 166.\\n\\n The Supreme Court itself has recognized the same principle. In Sperry v.\\n\\nState of Florida ex rel. Florida Bar, 373 U.S. 379, 381 (1963), the plaintiff was a\\n\\n\\n 15\\n\\fFlorida resident registered to practice before the United States Patent Office\\n\\n(“USPO”), but not admitted to practice law in Florida, or indeed in any other\\n\\nstate. The Florida Bar instituted proceedings against him in the Supreme Court of\\n\\nFlorida, alleging that he was engaged in the unauthorized practice of law because\\n\\nalthough he was not a member of the Florida Bar, he, inter alia, maintained an\\n\\noffice in Florida, held himself out to the public as a Patent Attorney, represented\\n\\nFlorida clients before the USPO, and rendered opinions as to patentability. Id.\\n\\nThe Florida Bar sought to enjoin the plaintiff from performing such acts within\\n\\nthe state. Id. The Supreme Court of Florida concluded that the plaintiff’s conduct\\n\\ndid constitute the unauthorized practice of law, which the state could properly\\n\\nprohibit acting under its police power, and that neither federal statute nor the\\n\\nfederal Constitution “empowered any federal body to authorize such conduct in\\n\\nFlorida.” Id. at 382.\\n\\n The United States Supreme Court reversed, holding that Congress had\\n\\nprovided the Commissioner of Patents with the ability to prescribe regulations\\n\\ngoverning the recognition and conduct of agents, attorneys, and other persons\\n\\nrepresenting applicants before the Patent Office. Id. at 384, 404. The Court\\n\\nreasoned that “registration in the Patent Office confers a right to practice before\\n\\n\\n 16\\n\\fthe Office without regard to whether the State within which the practice is\\n\\nconducted would otherwise prohibit such conduct.” Id. at 388. See also Servidone\\n\\nConstr. Corp. v. St. Paul Fire & Marine Ins. Co., 911 F. Supp. 560, 574 (N.D.N.Y.\\n\\n1995) (“There is, of course, no question that the right to practice in federal court\\n\\nincludes the right to appear there not withstanding state laws which regulate the\\n\\npractice of law.”) (citation omitted).\\n\\n Federal courts routinely regulate who can appear in federal court (and\\n\\nhow they can appear) in ways that promote efficient court administration and the\\n\\norderly administration of justice without infringing on state-created substantive\\n\\nrights. See, e.g., Merchant Cash & Capital, LLC v. Progressive Rent A Car, Inc., 16 Civ.\\n\\n3720 (AMD) (VMS), 2018 WL 4268908, at *2–3 (E.D.N.Y. Aug. 15, 2018) (applying\\n\\nfederal law to conclude that a pro se plaintiff could not represent a corporation\\n\\nwhile applying New York law to the underlying substantive claims); Avent v.\\n\\nState Farm Fire and Cas. Co., No. 5:16-CV-278-BO, 2017 WL 4171971, at *2\\n\\n(E.D.N.C. Sept. 20, 2017) (noting that pro se plaintiff attempting to litigate on\\n\\nbehalf of estate would need to show that she is the only beneficiary of the estate\\n\\nand that the estate has no creditors); Georgiades v. Martin-Trigona, 729 F.2d 831,\\n\\n834 (D.C. Cir. 1984) (applying federal law to conclude that the defendant’s son,\\n\\n\\n 17\\n\\fwho was not a lawyer, could not be admitted to represent the defendant).\\n\\n Similarly, several federal courts have explicitly concluded that § 1654 is a\\n\\nprocedural rule, and have therefore applied it notwithstanding contrary state\\n\\nlaw. See, e.g., United States v. Louisiana, 751 F. Supp. 608, 614 (E.D. La. 1990) (“As a\\n\\nfederal court of competent jurisdiction over this case . . . this Court has both the\\n\\nfederal statutory and inherent judicial power to resolve who may be permitted to\\n\\nappear before it and how appearances before it may be conducted. . . . Thus,\\n\\nneither state statutes nor state courts can be dispositive of any dispute over\\n\\nrepresentation of a party in this federal court case.”); Western Life Ins. Co. v.\\n\\nNanney, 296 F. Supp. 432, 440 (E.D. Tenn. 1969) (“[N]o provision of Tennessee law\\n\\nregulating the practice of law in the state courts could obstruct in any way such\\n\\npractice under the rules of a federal court, 28 U.S.C. § 1654. In the light of any\\n\\nincompatibility between Tennessee law and the aforecited federal statute, state\\n\\nlaw must yield to the federal legislation.”).\\n\\n Connecticut’s substantive law will not be affected by permitting Pappas to\\n\\nfile motions, conduct depositions, or represent the estate at trial. Nothing about\\n\\nConnecticut’s rule disallowing pro se litigants from representing an estate, or\\n\\nabout the reasoning of Ellis, indicates to us that the rule advances any important\\n\\n\\n 18\\n\\fConnecticut policy other than the orderly administration of its own court system.\\n\\nMoreover, the district court erred in distinguishing Guest as a case “decided\\n\\nunder New York law.” Pappas, 2017 WL 6629298, at *3. As documented above,\\n\\nthe ruling in Guest was based on federal law.\\n\\n Allowing a pro se plaintiff to represent an estate does come with its own set\\n\\nof concerns. As we explained in Guest, 603 F.3d at 20, and in other cases, see e.g.,\\n\\nJones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983), litigation by a\\n\\nnon-lawyer creates unusual burdens not only for the party she represents but\\n\\nalso for her adversaries and the court. But that a pro se plaintiff may have\\n\\ndifficulty navigating the complex legal process and that it may pose an extra\\n\\nburden on the court, gives us no reason to believe that this federal rule\\n\\nencroaches on any Connecticut substantive law, would give rise to forum\\n\\nshopping, or would occasion the inequitable administration of the laws. See\\n\\nHanna, 380 U.S. at 468. The rule pertains solely to the orderly conduct of litigation\\n\\nbefore the federal court, and does not regulate the conduct of persons in the\\n\\ncommunity. It is procedural—not substantive—and therefore a matter of federal\\n\\nlaw even in a diversity case.\\n\\n\\n\\n\\n 19\\n\\fIV. Other Claims\\n\\n The district court dismissed Pappas’s loss of spousal consortium claim,\\n\\nand Cassandra’s and Markos’s loss of parental consortium claims, solely on the\\n\\nground that those claims were derivative of the CPLA claim, which was\\n\\ndismissed due to Pappas’s pro se status. Our reversal of the dismissal of the CPLA\\n\\nclaim necessarily reinstates the derivative consortium claims.\\n\\n Pappas makes no arguments on appeal with regard to the district court’s\\n\\ndismissal of her CUTPA and NIED claims as time-barred. She has therefore\\n\\nabandoned those claims, and we accordingly affirm their dismissal.\\n\\n CONCLUSION\\n\\n For the reasons stated above, we VACATE the judgment of the district\\n\\ncourt, insofar as it dismissed Pappas’s claims under the CPLA and the derivative\\n\\nconsortium claims, and AFFIRM the order of the district court, insofar as it\\n\\ndismissed Pappas’s other claims on statute of limitations grounds.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4366969/\", \"author_raw\": \"GERARD E. LYNCH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"LYNCH"},"judge2":{"kind":"string","value":"HALL"},"judge3":{"kind":"string","value":"ENGELMAYER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4589716/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Hazel B. PAPPAS, Individually and as Administratix and Sole Beneficiary of the Estate of James Pappas, Cassandra Pappas, Markos Pappas, Plaintiffs-Appellants, v. PHILIP MORRIS, INC., AKA Philip Morris USA, AKA Philip Morris USA Inc., Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-3842-cv\nPappas v. Philip Morris, Inc.\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n August Term, 2018\n\n Submitted: November 5, 2018 Decided: February 12, 2019\n\n Docket No. 17-3842-cv\n\n\n\n HAZEL B. PAPPAS, INDIVIDUALLY AND AS ADMINISTRATIX AND SOLE BENEFICIARY OF\n THE ESTATE OF JAMES PAPPAS, CASSANDRA PAPPAS, MARKOS PAPPAS,\n\n\n Plaintiffs-Appellants,\n\n — v. —\n\n PHILIP MORRIS, INC., AKA PHILIP MORRIS USA, AKA PHILIP MORRIS USA INC.,\n\n Defendant-Appellee.\n\n\n\n\nB e f o r e:\n\n LYNCH and HALL, Circuit Judges, and ENGELMAYER, District Judge.*\n\n\n\n\n Hazel B. Pappas, pro se, seeks to pursue several Connecticut state-law\nliability claims against Philip Morris, Inc., on behalf of the estate of her late\n\n\n*\n Judge Paul A. Engelmayer, of the United States District Court for the Southern\nDistrict of New York, sitting by designation.\n\fhusband, who died of respiratory and heart diseases after years of smoking\nMarlboro cigarettes. The district court dismissed certain of Pappas’s claims,\nholding that Connecticut law would not allow her to represent the estate pro se,\nand dismissed her other claims on the ground that they were barred by the\nstatute of limitations. The order of the district court is AFFIRMED in part and\nVACATED in part, and the case is REMANDED for further proceedings.\n\n\n\n\n Hazel B. Pappas, pro se, Cassandra Pappas, pro se, New Haven,\n CT; Markos Pappas, pro se, Berlin, NH, for Plaintiffs-\n Appellants.\n\n Keri L. Arnold, Arnold & Porter Kaye Scholer LLP, New York,\n NY; Paul W. Rodney, Arnold & Porter Kaye Scholer\n LLP, Denver, CO, for Defendant-Appellee.\n\n\n\nGERARD E. LYNCH, Circuit Judge:\n\n Plaintiff-Appellant Hazel B. Pappas (“Pappas”) seeks to bring several\n\nConnecticut law claims, pro se, against Defendant-Appellee Philip Morris, Inc.\n\n(“Philip Morris”), on behalf of the estate of her late husband, who died of\n\nrespiratory and heart diseases after years of smoking Marlboro cigarettes,\n\nmanufactured by Philip Morris. The United States District Court for the District\n\nof Connecticut (Alvin W. Thompson, J.) dismissed Pappas’s complaint, holding\n\nthat certain of her claims were barred by the statute of limitations and that she\n\ncould not bring the remaining claims pro se, since with respect to those claims she\n\n\n 2\n\fwas representing not herself, but the estate of her late husband. Pappas appealed.\n\nFor the reasons that follow, we VACATE the dismissal of Pappas’s claim under\n\nthe Connecticut Product Liability Act (“CPLA”), her derivative claim for loss of\n\nspousal consortium, and the claim of Plaintiffs-Appellants Cassandra and\n\nMarkos Pappas for loss of parental consortium, and REMAND for further\n\nproceedings. We AFFIRM the district court’s order in all other respects.\n\n BACKGROUND\n\n\n Acting pro se, Pappas filed a products liability suit against Philip Morris in\n\nthe district court pursuant to its diversity jurisdiction, asserting claims both on\n\nher own behalf and on behalf of her late husband’s estate, of which she is\n\nAdministratix. She alleges that in or about the late 1950s, her late husband, James\n\nPappas, was lured into cigarette smoking by a marketing strategy and conspiracy\n\namong tobacco companies to glamorize smoking and portray it as a normal and\n\nnon-dangerous part of American culture. For over five decades, James Pappas\n\nsmoked Marlboro cigarettes manufactured by Philip Morris. As a result of\n\nsmoking cigarettes, James Pappas contracted respiratory and heart diseases that\n\nled to his death on June 19, 2013, at the age of 79. In or about March 2016, a\n\nmedical professional informed Pappas that James Pappas’s smoking Marlboro\n\n\n 3\n\fcigarettes caused and aggravated the respiratory and heart disease that killed\n\nhim.\n\n\n On June 15, 2016, Pappas, and her two children with James, Cassandra and\n\nMarkos Pappas, filed a complaint stating claims against Philip Morris for (1)\n\nviolating the CPLA, Conn. Gen. Stat. § 52–572m, et seq., and Connecticut Unfair\n\nTrade Practices Act, Conn. Gen. Stat. § 42–110a, et seq., (“CUTPA”); (2) loss of\n\nspousal consortium; (3) loss of parental consortium; and (4) negligent infliction of\n\nemotional distress (“NIED”). In support of Pappas’s ability to litigate the action\n\npro se, Cassandra and Markos Pappas filed disclaimers of interest in their father’s\n\nestate, and Pappas filed an affidavit stating that to her knowledge James Pappas\n\nhas no known creditors or debtors. As a result, Pappas contends that she is the\n\nsole beneficiary of James Pappas’s estate.\n\n\n The district court held a hearing to determine, among other things,\n\nwhether Pappas could represent the estate pro se. After briefing by the parties, the\n\ndistrict court dismissed Pappas’s, Cassandra’s, and Markos’s complaint under\n\nFed. R. Civ. P. 12(b)(1) and 12(b)(6). Pappas v. Philip Morris USA Inc., No. 3:16-cv-\n\n932(AWT), 2017 WL 6629298 (D. Conn. June 21, 2017).\n\n\n\n\n 4\n\f The district court dismissed Pappas’s CPLA claim, which belongs to James\n\nPappas’s estate, on the ground that Pappas could not bring that claim pro se. The\n\ncourt held that because it was sitting in diversity jurisdiction, it had to apply\n\nConnecticut law to the question of whether Pappas could represent the estate pro\n\nse, and under Ellis v. Cohen, 982 A.2d 1130 (Conn. App. Ct. 2009), she could not\n\ndo so. Ellis explains that under Connecticut law, a litigant may appear pro se only\n\nto represent her own cause, and that individuals may not appear pro se when\n\nthey are suing in a representative capacity. Id. at 1133. The district court rejected\n\nthe applicability of a Second Circuit case, Guest v. Hansen, 603 F.3d 15 (2d Cir.\n\n2010), in which this Court held that the administrator of an estate could represent\n\nthe estate pro se under certain conditions, on the grounds that Guest was decided\n\nunder New York law. The district court also dismissed Pappas’s loss of spousal\n\nconsortium claim, and Cassandra’s and Markos’s loss of parental consortium\n\nclaims, on the ground that those claims were derivative of the dismissed CPLA\n\nclaim.\n\n\n The district court also dismissed the CUTPA claims and NIED claims as\n\ntime-barred by their respective three- and two-year statutes of limitations. The\n\ndistrict court further ruled that, even if the CUTPA claims were not time-barred,\n\n\n 5\n\fPappas’s CUTPA claims would still fail because the CPLA, not CUTPA, provides\n\nthe exclusive remedy under Connecticut law for a party seeking recompense for\n\ninjuries caused by a product defect.\n\n\n Having thus dismissed all the claims in the complaint, the district court\n\nordered the case closed. Pappas and her children moved to amend the judgment\n\nunder Fed. R. Civ. P. 59(e), asserting numerous arguments. The district court\n\ndenied the motion. Pappas and her children timely appealed.\n\n DISCUSSION\n\n We write to correct the district court’s error in applying Connecticut law to\n\nthe question of whether Pappas can represent the estate of her late husband pro\n\nse, an issue we review de novo. See Principal Nat’l Life Ins. Co. v. Coassin, 884 F.3d\n\n130, 134 (2d Cir. 2018).\n\nI. The Conflict Between Federal and Connecticut Law\n\n Connecticut law and federal law appear to conflict on the issue of whether\n\nPappas can represent the estate pro se. In Guest, this Court held that a pro se\n\nplaintiff could represent an estate when the plaintiff is the estate’s only\n\nbeneficiary and the estate has no creditors. 603 F.3d at 21. Contrary to the district\n\ncourt’s belief, that holding was not based on New York law. Although the\n\n\n 6\n\fjurisdiction of the Guest Court was based on diversity of citizenship, and the\n\nCourt applied New York law to the substantive issues before it, id. at 21–22, the\n\nportion of the Guest opinion discussing whether the estate could be represented\n\nby a pro se litigant relied exclusively on 28 U.S.C. § 1654 and federal cases\n\ngoverning the practice of law in federal courts, referencing New York law only to\n\nidentify the nature of the substantive claims being pursued. Id. at 20–21.\n\n The Guest holding was rooted in § 1654. That statute provides that “[i]n all\n\ncourts of the United States the parties may plead and conduct their own cases\n\npersonally or by counsel as [permitted] by the rules of such courts, respectively.”\n\n28 U.S.C. § 1654. As the Court explained, § 1654 limits parties to pleading and\n\nconducting their own cases personally, because “the law contains so many\n\nesoteric pitfalls for an untrained advocate . . . that the risk of inadvertent waiver\n\nor abandonment of an issue is too high for us to allow a pro se litigant to represent\n\nanother person.” Guest, 603 F.3d at 20. Nevertheless, the Court continued, when\n\nthe administrator and sole beneficiary of an estate with no creditors seeks to\n\nappear pro se on behalf of the estate, she is in fact appearing solely on her own\n\nbehalf, because she is the only party affected by the disposition of the suit. Id. at\n\n21. Under those circumstances, the assignment of the sole beneficiary’s claims to\n\n\n 7\n\fa paper entity—the estate—rather than to the beneficiary herself, is only a legal\n\nfiction. Id.\n\n Connecticut law apparently provides otherwise. In Connecticut, “a person\n\nwho has not been admitted as an attorney . . . shall not . . . [p]ractice law or\n\nappear as an attorney-at-law for another, in any court of record in [Connecticut],”\n\nConn. Gen. Stat. Ann. § 51–88(a), and Connecticut state courts have interpreted\n\nthat statute to prohibit pro se representation of an estate. See e.g., Milner v. Beckett\n\nCorp., No. HHDCV115035597S, 2012 WL 527628, at *3 (Conn. Super. Ct. Jan. 25,\n\n2012) (“[T]he plaintiff could not, in a pro se capacity, represent his father’s\n\nestate.”); Sedich v. Waynik, No. CV 970348505S, 1998 WL 328043 at *1 (Conn.\n\nSuper. Ct. June 15, 1998) (“An administrator is the personal representative of the\n\nestate and its beneficiaries and cannot bring a suit as a pro se.”) (internal\n\nquotations marks omitted). In Ellis, 982 A.2d at 1133–34, the Appellate Court of\n\nConnecticut held that the executor of an estate has no right of self-representation,\n\nand thus an executor’s pro se appearance in court on behalf of the estate\n\nconstituted the unauthorized practice of law.1 Because Connecticut law and\n\n\n1\n We note that no Connecticut court has addressed the narrow question of\nwhether there is an exception to the rule that a pro se litigant can only represent\nherself, where the pro se litigant seeks to represent an estate that has no creditors\n\n 8\n\ffederal law are in conflict on this point, we must decide which applies in the case\n\nbefore us.\n\nII. The Erie Doctrine\n\n The district court held that it was required to apply Connecticut law on\n\nthis question under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). In Erie,\n\nthe Supreme Court construed the Rules of Decision Act, § 34 of the Judiciary Act\n\nof 1789, which provides that: “[t]he laws of the several states, except where the\n\nConstitution or treaties of the United States or Acts of Congress otherwise\n\nrequire or provide, shall be regarded as rules of decision in civil actions in the\n\ncourts of the United States, in cases where they apply.” 28 U.S.C. § 1652. Erie\n\nstands for the proposition that, as a general matter, a federal district court sitting\n\nin diversity jurisdiction must apply the substantive law of the state in which it sits.\n\nSee Erie, 304 U.S. at 78.\n\n However, the Constitution also vests Congress with the power “[t]o\n\n\n\nand of which she is the only beneficiary. Connecticut cases all state the rule\nbanning pro se litigants from representing anyone other than themselves in\nabsolute terms, see e.g., Expressway Assocs. II v. Friendly Ice Cream Corp. of\nConnecticut, 642 A.2d 62, 64 (Conn. App. Ct. 1994), and we found no case\nsuggesting the existence of any exceptions. Under the circumstances, we assume,\nas do the parties, that the district court correctly interpreted Connecticut law as\nnot recognizing the exception adopted as a matter of federal law in Guest.\n\n 9\n\fconstitute Tribunals inferior to the supreme Court” and “[t]o make all Laws\n\nwhich shall be necessary and proper for carrying into Execution” that power.\n\nU.S. Const. art I, § 8, cls. 9, 18. Thus, while “Congress has no power to declare\n\nsubstantive rules of common law applicable in a state,” Erie, 304 U.S. at 78, “Erie\n\nand its offspring cast no doubt on the long-recognized power of Congress to\n\nprescribe housekeeping rules for federal courts even though some of those rules\n\nwill inevitably differ from comparable state rules,” Hanna v. Plumer, 380 U.S. 460,\n\n473 (1965); see Erie, 304 U.S. at 72–73 (“[T]he purpose of [section 34] was merely to\n\nmake certain that, in all matters except those in which some federal law is controlling,\n\nthe federal courts exercising jurisdiction in diversity of citizenship cases would\n\napply as their rules of decision the law of the state . . . .”) (emphasis added).\n\n Erie and its progeny thus require us to reconcile two different edicts: the\n\ncommand that federal courts must honor applicable state substantive law on the\n\none hand, and the integrity of the federal courts as an independent judicial\n\nsystem on the other. See 19 Charles Alan Wright et al., Fed. Prac. & Proc. Juris.\n\n§ 4501 (3d ed.). Where state and federal law are in conflict, we reconcile those\n\nprinciples by asking whether the federal law or rule “regulate[s] matters\n\nrationally capable of classification as procedure.” Shady Grove Orthopedic Assocs.,\n\n\n 10\n\fP.A. v. Allstate Ins. Co., 559 U.S. 393, 406 (2010) (internal quotation marks\n\nomitted); accord Hanna, 380 U.S. at 472 (“[T]he constitutional provision for a\n\nfederal court system (augmented by the Necessary and Proper clause) . . .\n\nincludes a power to regulate matters which, though falling within the uncertain\n\narea between substance and procedure, are rationally capable of classification as\n\neither.”). Procedure is “the judicial process for enforcing rights and duties\n\nrecognized by substantive law and for justly administering remedy and redress\n\nfor disregard or infraction of them,” Hanna, 380 U.S. at 464, while substantive law\n\nis the law that governs the rights and obligations of individuals within a given\n\njurisdiction, see Shady Grove, 559 U.S. at 407. When deciding what law to apply in\n\nfederal court, we also consider whether disregarding the law that would control\n\nin state court would significantly affect the result of the litigation in federal court.\n\nSee Hanna, 380 U.S. at 466. That “outcome-determination test,” however “cannot\n\nbe read without reference to the twin aims of the Erie rule: discouragement of\n\nforum-shopping and avoidance of inequitable administration of the laws.” Id. at\n\n468.\n\nIII. Federal Law Governs Legal Practice Before the Federal Courts\n\n The district court misread both Erie and Guest in concluding that\n\n\n 11\n\fConnecticut’s rule controlled the circumstances in which a party may appear pro\n\nse in federal court. We now make explicit what was implicit in Guest: that § 1654,\n\nand federal rules interpreting it, are procedural in nature and therefore must be\n\napplied by federal courts in diversity cases. Who may practice law before a\n\nfederal court is a matter of procedure—which Congress and the federal courts\n\nhave the power to regulate—notwithstanding contrary state law.\n\n Federal courts have discretion to adopt such rules as are necessary to carry\n\nout the business of the courts. See Frazier v. Heebe, 482 U.S. 641, 645 (1987); Fed. R.\n\nCiv. P. 83. That authority includes the regulation of admissions to a court’s own\n\nbar. Frazier, 482 U.S. at 645. “The authority to adopt rules relating to admission to\n\npractice before the federal courts was delegated by Congress to the federal courts\n\n[by] Section 35 of the Judiciary Act of 1789 . . . now codified as 28 U.S.C. § 1654.”\n\nBrown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985). Thus, while “attorneys\n\npracticing in federal court are charged with . . . the duty to conform to the state\n\ncode of professional responsibility,” Shabbir v. Pakistan Int’l Airlines, 443 F. Supp.\n\n2d 299, 306 (E.D.N.Y. 2005), district courts have the “right and duty . . . to\n\nregulate the proceedings and the counsel who come before [them],” In re\n\nSeptember 11 Litig., 236 F.R.D. 164, 172 (S.D.N.Y. 2006).\n\n\n 12\n\f The Seventh Circuit said as much in Elustra v. Mineo, 595 F.3d 699 (7th Cir.\n\n2010). In Elustra, the Court had to determine the validity of a motion filed by a\n\nnon-lawyer mother on behalf of her minor and adult daughters, after the\n\ndaughters’ lawyers had been discharged. Id. at 703–04. The Court recognized that\n\nits first decision was whether it should look to state or federal law to resolve the\n\nproblem. Id. at 704. It noted that, “[o]n the one hand, Fed. R. Civ. P. 17(b)\n\nprovides that ‘capacity to sue’ is defined by state law.” Id. But, on the other hand,\n\nfederal courts are entitled to use their own procedures, whether jurisdiction is\n\nbased on a federal question or on another ground such as diversity of citizenship\n\nor supplemental jurisdiction. Id. The Court noted that the validity of a motion\n\nfiled by a non-attorney representative had “less to do with the capacity to sue\n\nthan it does with the right to act in court, which is normally a matter regulated by\n\nthe rules of professional conduct.” Id. Because “[f]ederal courts have the inherent\n\nauthority to adopt their own rules . . . federal law [] dictate[d] whether [the\n\nmother] was entitled to act for one or more of her three daughters in the way that\n\nshe did.” Id.\n\n Indeed, district courts regulate, by means of their local rules, who may\n\npractice before them. For example, District of Connecticut Local Civil Rule 83.1 is\n\n\n 13\n\ftitled “Admission of Attorneys.” Its subsection (a) states that:\n\n Any attorney of the Bar of the State of Connecticut or of\n the bar of any United States District Court, whose\n professional character is good, may be admitted to\n practice in this Court upon a Petition for Admission, in\n form and substance prescribed by subsection (b) of this\n Rule, after paying the admission fee, taking the proper\n oath, and signing the Roll of Attorneys Admitted to the\n Bar of the United States District Court for the District of\n Connecticut.\n\nSubsection (d) also regulates the admission of visiting attorneys by motion. The\n\nDistrict of Connecticut thus does not require attorneys appearing before it to be\n\nlicensed to practice in Connecticut state courts.\n\n The ability of federal courts to regulate those who appear before them\n\ncannot be controlled by state law. “The two judicial systems of courts, the state\n\njudicatures and the federal judiciary, have autonomous control over the conduct\n\nof their officers, among whom . . . lawyers are included.” Theard v. United States,\n\n354 U.S. 278, 281 (1957) (lawyers admitted to practice in federal court are not\n\nautomatically disbarred when the state disbars them); see United States v. Dinitz,\n\n538 F.2d 1214, 1219 (5th Cir. 1976) (“Since attorneys are officers of the courts\n\nbefore which they appear, such courts are necessarily vested with the authority,\n\nwithin certain limits, to control attorneys’ conduct.”). Both we and the Supreme\n\n\n 14\n\fCourt have recognized those principles.\n\n In Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir. 1966), we had to\n\ndetermine whether a California lawyer who represented a client in federal court\n\nin New York, but was not admitted to practice law in either New York state\n\ncourts or in the federal district court, could recover attorney’s fees from his client.\n\nThe client, who was trying to avoid paying his former lawyer, argued that, under\n\nthe circumstances of the case, the New York courts would refuse to grant\n\nrecovery to the lawyer. Id. at 165. We rejected that argument, however, holding\n\nthat “it is within the power of the federal government to determine who will be\n\npermitted to practice in its courts and that this includes allowing compensation\n\nfor services rendered in regard to litigation in the federal courts,” even when the\n\nattorney would not be able to recover in state court. Id. That is so because “the\n\nrules of the federal courts concerning admission of attorneys have long\n\nrecognized that experts in federal law should be permitted, when appropriate, to\n\nconduct litigation in the federal courts regardless of whether they have been\n\nadmitted to practice in the state in which the court sits.” Id. at 166.\n\n The Supreme Court itself has recognized the same principle. In Sperry v.\n\nState of Florida ex rel. Florida Bar, 373 U.S. 379, 381 (1963), the plaintiff was a\n\n\n 15\n\fFlorida resident registered to practice before the United States Patent Office\n\n(“USPO”), but not admitted to practice law in Florida, or indeed in any other\n\nstate. The Florida Bar instituted proceedings against him in the Supreme Court of\n\nFlorida, alleging that he was engaged in the unauthorized practice of law because\n\nalthough he was not a member of the Florida Bar, he, inter alia, maintained an\n\noffice in Florida, held himself out to the public as a Patent Attorney, represented\n\nFlorida clients before the USPO, and rendered opinions as to patentability. Id.\n\nThe Florida Bar sought to enjoin the plaintiff from performing such acts within\n\nthe state. Id. The Supreme Court of Florida concluded that the plaintiff’s conduct\n\ndid constitute the unauthorized practice of law, which the state could properly\n\nprohibit acting under its police power, and that neither federal statute nor the\n\nfederal Constitution “empowered any federal body to authorize such conduct in\n\nFlorida.” Id. at 382.\n\n The United States Supreme Court reversed, holding that Congress had\n\nprovided the Commissioner of Patents with the ability to prescribe regulations\n\ngoverning the recognition and conduct of agents, attorneys, and other persons\n\nrepresenting applicants before the Patent Office. Id. at 384, 404. The Court\n\nreasoned that “registration in the Patent Office confers a right to practice before\n\n\n 16\n\fthe Office without regard to whether the State within which the practice is\n\nconducted would otherwise prohibit such conduct.” Id. at 388. See also Servidone\n\nConstr. Corp. v. St. Paul Fire & Marine Ins. Co., 911 F. Supp. 560, 574 (N.D.N.Y.\n\n1995) (“There is, of course, no question that the right to practice in federal court\n\nincludes the right to appear there not withstanding state laws which regulate the\n\npractice of law.”) (citation omitted).\n\n Federal courts routinely regulate who can appear in federal court (and\n\nhow they can appear) in ways that promote efficient court administration and the\n\norderly administration of justice without infringing on state-created substantive\n\nrights. See, e.g., Merchant Cash & Capital, LLC v. Progressive Rent A Car, Inc., 16 Civ.\n\n3720 (AMD) (VMS), 2018 WL 4268908, at *2–3 (E.D.N.Y. Aug. 15, 2018) (applying\n\nfederal law to conclude that a pro se plaintiff could not represent a corporation\n\nwhile applying New York law to the underlying substantive claims); Avent v.\n\nState Farm Fire and Cas. Co., No. 5:16-CV-278-BO, 2017 WL 4171971, at *2\n\n(E.D.N.C. Sept. 20, 2017) (noting that pro se plaintiff attempting to litigate on\n\nbehalf of estate would need to show that she is the only beneficiary of the estate\n\nand that the estate has no creditors); Georgiades v. Martin-Trigona, 729 F.2d 831,\n\n834 (D.C. Cir. 1984) (applying federal law to conclude that the defendant’s son,\n\n\n 17\n\fwho was not a lawyer, could not be admitted to represent the defendant).\n\n Similarly, several federal courts have explicitly concluded that § 1654 is a\n\nprocedural rule, and have therefore applied it notwithstanding contrary state\n\nlaw. See, e.g., United States v. Louisiana, 751 F. Supp. 608, 614 (E.D. La. 1990) (“As a\n\nfederal court of competent jurisdiction over this case . . . this Court has both the\n\nfederal statutory and inherent judicial power to resolve who may be permitted to\n\nappear before it and how appearances before it may be conducted. . . . Thus,\n\nneither state statutes nor state courts can be dispositive of any dispute over\n\nrepresentation of a party in this federal court case.”); Western Life Ins. Co. v.\n\nNanney, 296 F. Supp. 432, 440 (E.D. Tenn. 1969) (“[N]o provision of Tennessee law\n\nregulating the practice of law in the state courts could obstruct in any way such\n\npractice under the rules of a federal court, 28 U.S.C. § 1654. In the light of any\n\nincompatibility between Tennessee law and the aforecited federal statute, state\n\nlaw must yield to the federal legislation.”).\n\n Connecticut’s substantive law will not be affected by permitting Pappas to\n\nfile motions, conduct depositions, or represent the estate at trial. Nothing about\n\nConnecticut’s rule disallowing pro se litigants from representing an estate, or\n\nabout the reasoning of Ellis, indicates to us that the rule advances any important\n\n\n 18\n\fConnecticut policy other than the orderly administration of its own court system.\n\nMoreover, the district court erred in distinguishing Guest as a case “decided\n\nunder New York law.” Pappas, 2017 WL 6629298, at *3. As documented above,\n\nthe ruling in Guest was based on federal law.\n\n Allowing a pro se plaintiff to represent an estate does come with its own set\n\nof concerns. As we explained in Guest, 603 F.3d at 20, and in other cases, see e.g.,\n\nJones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983), litigation by a\n\nnon-lawyer creates unusual burdens not only for the party she represents but\n\nalso for her adversaries and the court. But that a pro se plaintiff may have\n\ndifficulty navigating the complex legal process and that it may pose an extra\n\nburden on the court, gives us no reason to believe that this federal rule\n\nencroaches on any Connecticut substantive law, would give rise to forum\n\nshopping, or would occasion the inequitable administration of the laws. See\n\nHanna, 380 U.S. at 468. The rule pertains solely to the orderly conduct of litigation\n\nbefore the federal court, and does not regulate the conduct of persons in the\n\ncommunity. It is procedural—not substantive—and therefore a matter of federal\n\nlaw even in a diversity case.\n\n\n\n\n 19\n\fIV. Other Claims\n\n The district court dismissed Pappas’s loss of spousal consortium claim,\n\nand Cassandra’s and Markos’s loss of parental consortium claims, solely on the\n\nground that those claims were derivative of the CPLA claim, which was\n\ndismissed due to Pappas’s pro se status. Our reversal of the dismissal of the CPLA\n\nclaim necessarily reinstates the derivative consortium claims.\n\n Pappas makes no arguments on appeal with regard to the district court’s\n\ndismissal of her CUTPA and NIED claims as time-barred. She has therefore\n\nabandoned those claims, and we accordingly affirm their dismissal.\n\n CONCLUSION\n\n For the reasons stated above, we VACATE the judgment of the district\n\ncourt, insofar as it dismissed Pappas’s claims under the CPLA and the derivative\n\nconsortium claims, and AFFIRM the order of the district court, insofar as it\n\ndismissed Pappas’s other claims on statute of limitations grounds.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Hazel B. PAPPAS, Individually and as Administratix and Sole Beneficiary of the Estate of James Pappas, Cassandra Pappas, Markos Pappas, Plaintiffs-Appellants, v. PHILIP MORRIS, INC., AKA Philip Morris USA, AKA Philip Morris USA Inc., Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-3842-cv\\nPappas v. Philip Morris, Inc.\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE SECOND CIRCUIT\\n\\n\\n\\n August Term, 2018\\n\\n Submitted: November 5, 2018 Decided: February 12, 2019\\n\\n Docket No. 17-3842-cv\\n\\n\\n\\n HAZEL B. PAPPAS, INDIVIDUALLY AND AS ADMINISTRATIX AND SOLE BENEFICIARY OF\\n THE ESTATE OF JAMES PAPPAS, CASSANDRA PAPPAS, MARKOS PAPPAS,\\n\\n\\n Plaintiffs-Appellants,\\n\\n — v. —\\n\\n PHILIP MORRIS, INC., AKA PHILIP MORRIS USA, AKA PHILIP MORRIS USA INC.,\\n\\n Defendant-Appellee.\\n\\n\\n\\n\\nB e f o r e:\\n\\n LYNCH and HALL, Circuit Judges, and ENGELMAYER, District Judge.*\\n\\n\\n\\n\\n Hazel B. Pappas, pro se, seeks to pursue several Connecticut state-law\\nliability claims against Philip Morris, Inc., on behalf of the estate of her late\\n\\n\\n*\\n Judge Paul A. Engelmayer, of the United States District Court for the Southern\\nDistrict of New York, sitting by designation.\\n\\fhusband, who died of respiratory and heart diseases after years of smoking\\nMarlboro cigarettes. The district court dismissed certain of Pappas’s claims,\\nholding that Connecticut law would not allow her to represent the estate pro se,\\nand dismissed her other claims on the ground that they were barred by the\\nstatute of limitations. The order of the district court is AFFIRMED in part and\\nVACATED in part, and the case is REMANDED for further proceedings.\\n\\n\\n\\n\\n Hazel B. Pappas, pro se, Cassandra Pappas, pro se, New Haven,\\n CT; Markos Pappas, pro se, Berlin, NH, for Plaintiffs-\\n Appellants.\\n\\n Keri L. Arnold, Arnold & Porter Kaye Scholer LLP, New York,\\n NY; Paul W. Rodney, Arnold & Porter Kaye Scholer\\n LLP, Denver, CO, for Defendant-Appellee.\\n\\n\\n\\nGERARD E. LYNCH, Circuit Judge:\\n\\n Plaintiff-Appellant Hazel B. Pappas (“Pappas”) seeks to bring several\\n\\nConnecticut law claims, pro se, against Defendant-Appellee Philip Morris, Inc.\\n\\n(“Philip Morris”), on behalf of the estate of her late husband, who died of\\n\\nrespiratory and heart diseases after years of smoking Marlboro cigarettes,\\n\\nmanufactured by Philip Morris. The United States District Court for the District\\n\\nof Connecticut (Alvin W. Thompson, J.) dismissed Pappas’s complaint, holding\\n\\nthat certain of her claims were barred by the statute of limitations and that she\\n\\ncould not bring the remaining claims pro se, since with respect to those claims she\\n\\n\\n 2\\n\\fwas representing not herself, but the estate of her late husband. Pappas appealed.\\n\\nFor the reasons that follow, we VACATE the dismissal of Pappas’s claim under\\n\\nthe Connecticut Product Liability Act (“CPLA”), her derivative claim for loss of\\n\\nspousal consortium, and the claim of Plaintiffs-Appellants Cassandra and\\n\\nMarkos Pappas for loss of parental consortium, and REMAND for further\\n\\nproceedings. We AFFIRM the district court’s order in all other respects.\\n\\n BACKGROUND\\n\\n\\n Acting pro se, Pappas filed a products liability suit against Philip Morris in\\n\\nthe district court pursuant to its diversity jurisdiction, asserting claims both on\\n\\nher own behalf and on behalf of her late husband’s estate, of which she is\\n\\nAdministratix. She alleges that in or about the late 1950s, her late husband, James\\n\\nPappas, was lured into cigarette smoking by a marketing strategy and conspiracy\\n\\namong tobacco companies to glamorize smoking and portray it as a normal and\\n\\nnon-dangerous part of American culture. For over five decades, James Pappas\\n\\nsmoked Marlboro cigarettes manufactured by Philip Morris. As a result of\\n\\nsmoking cigarettes, James Pappas contracted respiratory and heart diseases that\\n\\nled to his death on June 19, 2013, at the age of 79. In or about March 2016, a\\n\\nmedical professional informed Pappas that James Pappas’s smoking Marlboro\\n\\n\\n 3\\n\\fcigarettes caused and aggravated the respiratory and heart disease that killed\\n\\nhim.\\n\\n\\n On June 15, 2016, Pappas, and her two children with James, Cassandra and\\n\\nMarkos Pappas, filed a complaint stating claims against Philip Morris for (1)\\n\\nviolating the CPLA, Conn. Gen. Stat. § 52–572m, et seq., and Connecticut Unfair\\n\\nTrade Practices Act, Conn. Gen. Stat. § 42–110a, et seq., (“CUTPA”); (2) loss of\\n\\nspousal consortium; (3) loss of parental consortium; and (4) negligent infliction of\\n\\nemotional distress (“NIED”). In support of Pappas’s ability to litigate the action\\n\\npro se, Cassandra and Markos Pappas filed disclaimers of interest in their father’s\\n\\nestate, and Pappas filed an affidavit stating that to her knowledge James Pappas\\n\\nhas no known creditors or debtors. As a result, Pappas contends that she is the\\n\\nsole beneficiary of James Pappas’s estate.\\n\\n\\n The district court held a hearing to determine, among other things,\\n\\nwhether Pappas could represent the estate pro se. After briefing by the parties, the\\n\\ndistrict court dismissed Pappas’s, Cassandra’s, and Markos’s complaint under\\n\\nFed. R. Civ. P. 12(b)(1) and 12(b)(6). Pappas v. Philip Morris USA Inc., No. 3:16-cv-\\n\\n932(AWT), 2017 WL 6629298 (D. Conn. June 21, 2017).\\n\\n\\n\\n\\n 4\\n\\f The district court dismissed Pappas’s CPLA claim, which belongs to James\\n\\nPappas’s estate, on the ground that Pappas could not bring that claim pro se. The\\n\\ncourt held that because it was sitting in diversity jurisdiction, it had to apply\\n\\nConnecticut law to the question of whether Pappas could represent the estate pro\\n\\nse, and under Ellis v. Cohen, 982 A.2d 1130 (Conn. App. Ct. 2009), she could not\\n\\ndo so. Ellis explains that under Connecticut law, a litigant may appear pro se only\\n\\nto represent her own cause, and that individuals may not appear pro se when\\n\\nthey are suing in a representative capacity. Id. at 1133. The district court rejected\\n\\nthe applicability of a Second Circuit case, Guest v. Hansen, 603 F.3d 15 (2d Cir.\\n\\n2010), in which this Court held that the administrator of an estate could represent\\n\\nthe estate pro se under certain conditions, on the grounds that Guest was decided\\n\\nunder New York law. The district court also dismissed Pappas’s loss of spousal\\n\\nconsortium claim, and Cassandra’s and Markos’s loss of parental consortium\\n\\nclaims, on the ground that those claims were derivative of the dismissed CPLA\\n\\nclaim.\\n\\n\\n The district court also dismissed the CUTPA claims and NIED claims as\\n\\ntime-barred by their respective three- and two-year statutes of limitations. The\\n\\ndistrict court further ruled that, even if the CUTPA claims were not time-barred,\\n\\n\\n 5\\n\\fPappas’s CUTPA claims would still fail because the CPLA, not CUTPA, provides\\n\\nthe exclusive remedy under Connecticut law for a party seeking recompense for\\n\\ninjuries caused by a product defect.\\n\\n\\n Having thus dismissed all the claims in the complaint, the district court\\n\\nordered the case closed. Pappas and her children moved to amend the judgment\\n\\nunder Fed. R. Civ. P. 59(e), asserting numerous arguments. The district court\\n\\ndenied the motion. Pappas and her children timely appealed.\\n\\n DISCUSSION\\n\\n We write to correct the district court’s error in applying Connecticut law to\\n\\nthe question of whether Pappas can represent the estate of her late husband pro\\n\\nse, an issue we review de novo. See Principal Nat’l Life Ins. Co. v. Coassin, 884 F.3d\\n\\n130, 134 (2d Cir. 2018).\\n\\nI. The Conflict Between Federal and Connecticut Law\\n\\n Connecticut law and federal law appear to conflict on the issue of whether\\n\\nPappas can represent the estate pro se. In Guest, this Court held that a pro se\\n\\nplaintiff could represent an estate when the plaintiff is the estate’s only\\n\\nbeneficiary and the estate has no creditors. 603 F.3d at 21. Contrary to the district\\n\\ncourt’s belief, that holding was not based on New York law. Although the\\n\\n\\n 6\\n\\fjurisdiction of the Guest Court was based on diversity of citizenship, and the\\n\\nCourt applied New York law to the substantive issues before it, id. at 21–22, the\\n\\nportion of the Guest opinion discussing whether the estate could be represented\\n\\nby a pro se litigant relied exclusively on 28 U.S.C. § 1654 and federal cases\\n\\ngoverning the practice of law in federal courts, referencing New York law only to\\n\\nidentify the nature of the substantive claims being pursued. Id. at 20–21.\\n\\n The Guest holding was rooted in § 1654. That statute provides that “[i]n all\\n\\ncourts of the United States the parties may plead and conduct their own cases\\n\\npersonally or by counsel as [permitted] by the rules of such courts, respectively.”\\n\\n28 U.S.C. § 1654. As the Court explained, § 1654 limits parties to pleading and\\n\\nconducting their own cases personally, because “the law contains so many\\n\\nesoteric pitfalls for an untrained advocate . . . that the risk of inadvertent waiver\\n\\nor abandonment of an issue is too high for us to allow a pro se litigant to represent\\n\\nanother person.” Guest, 603 F.3d at 20. Nevertheless, the Court continued, when\\n\\nthe administrator and sole beneficiary of an estate with no creditors seeks to\\n\\nappear pro se on behalf of the estate, she is in fact appearing solely on her own\\n\\nbehalf, because she is the only party affected by the disposition of the suit. Id. at\\n\\n21. Under those circumstances, the assignment of the sole beneficiary’s claims to\\n\\n\\n 7\\n\\fa paper entity—the estate—rather than to the beneficiary herself, is only a legal\\n\\nfiction. Id.\\n\\n Connecticut law apparently provides otherwise. In Connecticut, “a person\\n\\nwho has not been admitted as an attorney . . . shall not . . . [p]ractice law or\\n\\nappear as an attorney-at-law for another, in any court of record in [Connecticut],”\\n\\nConn. Gen. Stat. Ann. § 51–88(a), and Connecticut state courts have interpreted\\n\\nthat statute to prohibit pro se representation of an estate. See e.g., Milner v. Beckett\\n\\nCorp., No. HHDCV115035597S, 2012 WL 527628, at *3 (Conn. Super. Ct. Jan. 25,\\n\\n2012) (“[T]he plaintiff could not, in a pro se capacity, represent his father’s\\n\\nestate.”); Sedich v. Waynik, No. CV 970348505S, 1998 WL 328043 at *1 (Conn.\\n\\nSuper. Ct. June 15, 1998) (“An administrator is the personal representative of the\\n\\nestate and its beneficiaries and cannot bring a suit as a pro se.”) (internal\\n\\nquotations marks omitted). In Ellis, 982 A.2d at 1133–34, the Appellate Court of\\n\\nConnecticut held that the executor of an estate has no right of self-representation,\\n\\nand thus an executor’s pro se appearance in court on behalf of the estate\\n\\nconstituted the unauthorized practice of law.1 Because Connecticut law and\\n\\n\\n1\\n We note that no Connecticut court has addressed the narrow question of\\nwhether there is an exception to the rule that a pro se litigant can only represent\\nherself, where the pro se litigant seeks to represent an estate that has no creditors\\n\\n 8\\n\\ffederal law are in conflict on this point, we must decide which applies in the case\\n\\nbefore us.\\n\\nII. The Erie Doctrine\\n\\n The district court held that it was required to apply Connecticut law on\\n\\nthis question under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). In Erie,\\n\\nthe Supreme Court construed the Rules of Decision Act, § 34 of the Judiciary Act\\n\\nof 1789, which provides that: “[t]he laws of the several states, except where the\\n\\nConstitution or treaties of the United States or Acts of Congress otherwise\\n\\nrequire or provide, shall be regarded as rules of decision in civil actions in the\\n\\ncourts of the United States, in cases where they apply.” 28 U.S.C. § 1652. Erie\\n\\nstands for the proposition that, as a general matter, a federal district court sitting\\n\\nin diversity jurisdiction must apply the substantive law of the state in which it sits.\\n\\nSee Erie, 304 U.S. at 78.\\n\\n However, the Constitution also vests Congress with the power “[t]o\\n\\n\\n\\nand of which she is the only beneficiary. Connecticut cases all state the rule\\nbanning pro se litigants from representing anyone other than themselves in\\nabsolute terms, see e.g., Expressway Assocs. II v. Friendly Ice Cream Corp. of\\nConnecticut, 642 A.2d 62, 64 (Conn. App. Ct. 1994), and we found no case\\nsuggesting the existence of any exceptions. Under the circumstances, we assume,\\nas do the parties, that the district court correctly interpreted Connecticut law as\\nnot recognizing the exception adopted as a matter of federal law in Guest.\\n\\n 9\\n\\fconstitute Tribunals inferior to the supreme Court” and “[t]o make all Laws\\n\\nwhich shall be necessary and proper for carrying into Execution” that power.\\n\\nU.S. Const. art I, § 8, cls. 9, 18. Thus, while “Congress has no power to declare\\n\\nsubstantive rules of common law applicable in a state,” Erie, 304 U.S. at 78, “Erie\\n\\nand its offspring cast no doubt on the long-recognized power of Congress to\\n\\nprescribe housekeeping rules for federal courts even though some of those rules\\n\\nwill inevitably differ from comparable state rules,” Hanna v. Plumer, 380 U.S. 460,\\n\\n473 (1965); see Erie, 304 U.S. at 72–73 (“[T]he purpose of [section 34] was merely to\\n\\nmake certain that, in all matters except those in which some federal law is controlling,\\n\\nthe federal courts exercising jurisdiction in diversity of citizenship cases would\\n\\napply as their rules of decision the law of the state . . . .”) (emphasis added).\\n\\n Erie and its progeny thus require us to reconcile two different edicts: the\\n\\ncommand that federal courts must honor applicable state substantive law on the\\n\\none hand, and the integrity of the federal courts as an independent judicial\\n\\nsystem on the other. See 19 Charles Alan Wright et al., Fed. Prac. & Proc. Juris.\\n\\n§ 4501 (3d ed.). Where state and federal law are in conflict, we reconcile those\\n\\nprinciples by asking whether the federal law or rule “regulate[s] matters\\n\\nrationally capable of classification as procedure.” Shady Grove Orthopedic Assocs.,\\n\\n\\n 10\\n\\fP.A. v. Allstate Ins. Co., 559 U.S. 393, 406 (2010) (internal quotation marks\\n\\nomitted); accord Hanna, 380 U.S. at 472 (“[T]he constitutional provision for a\\n\\nfederal court system (augmented by the Necessary and Proper clause) . . .\\n\\nincludes a power to regulate matters which, though falling within the uncertain\\n\\narea between substance and procedure, are rationally capable of classification as\\n\\neither.”). Procedure is “the judicial process for enforcing rights and duties\\n\\nrecognized by substantive law and for justly administering remedy and redress\\n\\nfor disregard or infraction of them,” Hanna, 380 U.S. at 464, while substantive law\\n\\nis the law that governs the rights and obligations of individuals within a given\\n\\njurisdiction, see Shady Grove, 559 U.S. at 407. When deciding what law to apply in\\n\\nfederal court, we also consider whether disregarding the law that would control\\n\\nin state court would significantly affect the result of the litigation in federal court.\\n\\nSee Hanna, 380 U.S. at 466. That “outcome-determination test,” however “cannot\\n\\nbe read without reference to the twin aims of the Erie rule: discouragement of\\n\\nforum-shopping and avoidance of inequitable administration of the laws.” Id. at\\n\\n468.\\n\\nIII. Federal Law Governs Legal Practice Before the Federal Courts\\n\\n The district court misread both Erie and Guest in concluding that\\n\\n\\n 11\\n\\fConnecticut’s rule controlled the circumstances in which a party may appear pro\\n\\nse in federal court. We now make explicit what was implicit in Guest: that § 1654,\\n\\nand federal rules interpreting it, are procedural in nature and therefore must be\\n\\napplied by federal courts in diversity cases. Who may practice law before a\\n\\nfederal court is a matter of procedure—which Congress and the federal courts\\n\\nhave the power to regulate—notwithstanding contrary state law.\\n\\n Federal courts have discretion to adopt such rules as are necessary to carry\\n\\nout the business of the courts. See Frazier v. Heebe, 482 U.S. 641, 645 (1987); Fed. R.\\n\\nCiv. P. 83. That authority includes the regulation of admissions to a court’s own\\n\\nbar. Frazier, 482 U.S. at 645. “The authority to adopt rules relating to admission to\\n\\npractice before the federal courts was delegated by Congress to the federal courts\\n\\n[by] Section 35 of the Judiciary Act of 1789 . . . now codified as 28 U.S.C. § 1654.”\\n\\nBrown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985). Thus, while “attorneys\\n\\npracticing in federal court are charged with . . . the duty to conform to the state\\n\\ncode of professional responsibility,” Shabbir v. Pakistan Int’l Airlines, 443 F. Supp.\\n\\n2d 299, 306 (E.D.N.Y. 2005), district courts have the “right and duty . . . to\\n\\nregulate the proceedings and the counsel who come before [them],” In re\\n\\nSeptember 11 Litig., 236 F.R.D. 164, 172 (S.D.N.Y. 2006).\\n\\n\\n 12\\n\\f The Seventh Circuit said as much in Elustra v. Mineo, 595 F.3d 699 (7th Cir.\\n\\n2010). In Elustra, the Court had to determine the validity of a motion filed by a\\n\\nnon-lawyer mother on behalf of her minor and adult daughters, after the\\n\\ndaughters’ lawyers had been discharged. Id. at 703–04. The Court recognized that\\n\\nits first decision was whether it should look to state or federal law to resolve the\\n\\nproblem. Id. at 704. It noted that, “[o]n the one hand, Fed. R. Civ. P. 17(b)\\n\\nprovides that ‘capacity to sue’ is defined by state law.” Id. But, on the other hand,\\n\\nfederal courts are entitled to use their own procedures, whether jurisdiction is\\n\\nbased on a federal question or on another ground such as diversity of citizenship\\n\\nor supplemental jurisdiction. Id. The Court noted that the validity of a motion\\n\\nfiled by a non-attorney representative had “less to do with the capacity to sue\\n\\nthan it does with the right to act in court, which is normally a matter regulated by\\n\\nthe rules of professional conduct.” Id. Because “[f]ederal courts have the inherent\\n\\nauthority to adopt their own rules . . . federal law [] dictate[d] whether [the\\n\\nmother] was entitled to act for one or more of her three daughters in the way that\\n\\nshe did.” Id.\\n\\n Indeed, district courts regulate, by means of their local rules, who may\\n\\npractice before them. For example, District of Connecticut Local Civil Rule 83.1 is\\n\\n\\n 13\\n\\ftitled “Admission of Attorneys.” Its subsection (a) states that:\\n\\n Any attorney of the Bar of the State of Connecticut or of\\n the bar of any United States District Court, whose\\n professional character is good, may be admitted to\\n practice in this Court upon a Petition for Admission, in\\n form and substance prescribed by subsection (b) of this\\n Rule, after paying the admission fee, taking the proper\\n oath, and signing the Roll of Attorneys Admitted to the\\n Bar of the United States District Court for the District of\\n Connecticut.\\n\\nSubsection (d) also regulates the admission of visiting attorneys by motion. The\\n\\nDistrict of Connecticut thus does not require attorneys appearing before it to be\\n\\nlicensed to practice in Connecticut state courts.\\n\\n The ability of federal courts to regulate those who appear before them\\n\\ncannot be controlled by state law. “The two judicial systems of courts, the state\\n\\njudicatures and the federal judiciary, have autonomous control over the conduct\\n\\nof their officers, among whom . . . lawyers are included.” Theard v. United States,\\n\\n354 U.S. 278, 281 (1957) (lawyers admitted to practice in federal court are not\\n\\nautomatically disbarred when the state disbars them); see United States v. Dinitz,\\n\\n538 F.2d 1214, 1219 (5th Cir. 1976) (“Since attorneys are officers of the courts\\n\\nbefore which they appear, such courts are necessarily vested with the authority,\\n\\nwithin certain limits, to control attorneys’ conduct.”). Both we and the Supreme\\n\\n\\n 14\\n\\fCourt have recognized those principles.\\n\\n In Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir. 1966), we had to\\n\\ndetermine whether a California lawyer who represented a client in federal court\\n\\nin New York, but was not admitted to practice law in either New York state\\n\\ncourts or in the federal district court, could recover attorney’s fees from his client.\\n\\nThe client, who was trying to avoid paying his former lawyer, argued that, under\\n\\nthe circumstances of the case, the New York courts would refuse to grant\\n\\nrecovery to the lawyer. Id. at 165. We rejected that argument, however, holding\\n\\nthat “it is within the power of the federal government to determine who will be\\n\\npermitted to practice in its courts and that this includes allowing compensation\\n\\nfor services rendered in regard to litigation in the federal courts,” even when the\\n\\nattorney would not be able to recover in state court. Id. That is so because “the\\n\\nrules of the federal courts concerning admission of attorneys have long\\n\\nrecognized that experts in federal law should be permitted, when appropriate, to\\n\\nconduct litigation in the federal courts regardless of whether they have been\\n\\nadmitted to practice in the state in which the court sits.” Id. at 166.\\n\\n The Supreme Court itself has recognized the same principle. In Sperry v.\\n\\nState of Florida ex rel. Florida Bar, 373 U.S. 379, 381 (1963), the plaintiff was a\\n\\n\\n 15\\n\\fFlorida resident registered to practice before the United States Patent Office\\n\\n(“USPO”), but not admitted to practice law in Florida, or indeed in any other\\n\\nstate. The Florida Bar instituted proceedings against him in the Supreme Court of\\n\\nFlorida, alleging that he was engaged in the unauthorized practice of law because\\n\\nalthough he was not a member of the Florida Bar, he, inter alia, maintained an\\n\\noffice in Florida, held himself out to the public as a Patent Attorney, represented\\n\\nFlorida clients before the USPO, and rendered opinions as to patentability. Id.\\n\\nThe Florida Bar sought to enjoin the plaintiff from performing such acts within\\n\\nthe state. Id. The Supreme Court of Florida concluded that the plaintiff’s conduct\\n\\ndid constitute the unauthorized practice of law, which the state could properly\\n\\nprohibit acting under its police power, and that neither federal statute nor the\\n\\nfederal Constitution “empowered any federal body to authorize such conduct in\\n\\nFlorida.” Id. at 382.\\n\\n The United States Supreme Court reversed, holding that Congress had\\n\\nprovided the Commissioner of Patents with the ability to prescribe regulations\\n\\ngoverning the recognition and conduct of agents, attorneys, and other persons\\n\\nrepresenting applicants before the Patent Office. Id. at 384, 404. The Court\\n\\nreasoned that “registration in the Patent Office confers a right to practice before\\n\\n\\n 16\\n\\fthe Office without regard to whether the State within which the practice is\\n\\nconducted would otherwise prohibit such conduct.” Id. at 388. See also Servidone\\n\\nConstr. Corp. v. St. Paul Fire & Marine Ins. Co., 911 F. Supp. 560, 574 (N.D.N.Y.\\n\\n1995) (“There is, of course, no question that the right to practice in federal court\\n\\nincludes the right to appear there not withstanding state laws which regulate the\\n\\npractice of law.”) (citation omitted).\\n\\n Federal courts routinely regulate who can appear in federal court (and\\n\\nhow they can appear) in ways that promote efficient court administration and the\\n\\norderly administration of justice without infringing on state-created substantive\\n\\nrights. See, e.g., Merchant Cash & Capital, LLC v. Progressive Rent A Car, Inc., 16 Civ.\\n\\n3720 (AMD) (VMS), 2018 WL 4268908, at *2–3 (E.D.N.Y. Aug. 15, 2018) (applying\\n\\nfederal law to conclude that a pro se plaintiff could not represent a corporation\\n\\nwhile applying New York law to the underlying substantive claims); Avent v.\\n\\nState Farm Fire and Cas. Co., No. 5:16-CV-278-BO, 2017 WL 4171971, at *2\\n\\n(E.D.N.C. Sept. 20, 2017) (noting that pro se plaintiff attempting to litigate on\\n\\nbehalf of estate would need to show that she is the only beneficiary of the estate\\n\\nand that the estate has no creditors); Georgiades v. Martin-Trigona, 729 F.2d 831,\\n\\n834 (D.C. Cir. 1984) (applying federal law to conclude that the defendant’s son,\\n\\n\\n 17\\n\\fwho was not a lawyer, could not be admitted to represent the defendant).\\n\\n Similarly, several federal courts have explicitly concluded that § 1654 is a\\n\\nprocedural rule, and have therefore applied it notwithstanding contrary state\\n\\nlaw. See, e.g., United States v. Louisiana, 751 F. Supp. 608, 614 (E.D. La. 1990) (“As a\\n\\nfederal court of competent jurisdiction over this case . . . this Court has both the\\n\\nfederal statutory and inherent judicial power to resolve who may be permitted to\\n\\nappear before it and how appearances before it may be conducted. . . . Thus,\\n\\nneither state statutes nor state courts can be dispositive of any dispute over\\n\\nrepresentation of a party in this federal court case.”); Western Life Ins. Co. v.\\n\\nNanney, 296 F. Supp. 432, 440 (E.D. Tenn. 1969) (“[N]o provision of Tennessee law\\n\\nregulating the practice of law in the state courts could obstruct in any way such\\n\\npractice under the rules of a federal court, 28 U.S.C. § 1654. In the light of any\\n\\nincompatibility between Tennessee law and the aforecited federal statute, state\\n\\nlaw must yield to the federal legislation.”).\\n\\n Connecticut’s substantive law will not be affected by permitting Pappas to\\n\\nfile motions, conduct depositions, or represent the estate at trial. Nothing about\\n\\nConnecticut’s rule disallowing pro se litigants from representing an estate, or\\n\\nabout the reasoning of Ellis, indicates to us that the rule advances any important\\n\\n\\n 18\\n\\fConnecticut policy other than the orderly administration of its own court system.\\n\\nMoreover, the district court erred in distinguishing Guest as a case “decided\\n\\nunder New York law.” Pappas, 2017 WL 6629298, at *3. As documented above,\\n\\nthe ruling in Guest was based on federal law.\\n\\n Allowing a pro se plaintiff to represent an estate does come with its own set\\n\\nof concerns. As we explained in Guest, 603 F.3d at 20, and in other cases, see e.g.,\\n\\nJones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983), litigation by a\\n\\nnon-lawyer creates unusual burdens not only for the party she represents but\\n\\nalso for her adversaries and the court. But that a pro se plaintiff may have\\n\\ndifficulty navigating the complex legal process and that it may pose an extra\\n\\nburden on the court, gives us no reason to believe that this federal rule\\n\\nencroaches on any Connecticut substantive law, would give rise to forum\\n\\nshopping, or would occasion the inequitable administration of the laws. See\\n\\nHanna, 380 U.S. at 468. The rule pertains solely to the orderly conduct of litigation\\n\\nbefore the federal court, and does not regulate the conduct of persons in the\\n\\ncommunity. It is procedural—not substantive—and therefore a matter of federal\\n\\nlaw even in a diversity case.\\n\\n\\n\\n\\n 19\\n\\fIV. Other Claims\\n\\n The district court dismissed Pappas’s loss of spousal consortium claim,\\n\\nand Cassandra’s and Markos’s loss of parental consortium claims, solely on the\\n\\nground that those claims were derivative of the CPLA claim, which was\\n\\ndismissed due to Pappas’s pro se status. Our reversal of the dismissal of the CPLA\\n\\nclaim necessarily reinstates the derivative consortium claims.\\n\\n Pappas makes no arguments on appeal with regard to the district court’s\\n\\ndismissal of her CUTPA and NIED claims as time-barred. She has therefore\\n\\nabandoned those claims, and we accordingly affirm their dismissal.\\n\\n CONCLUSION\\n\\n For the reasons stated above, we VACATE the judgment of the district\\n\\ncourt, insofar as it dismissed Pappas’s claims under the CPLA and the derivative\\n\\nconsortium claims, and AFFIRM the order of the district court, insofar as it\\n\\ndismissed Pappas’s other claims on statute of limitations grounds.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":493,"cells":{"id":{"kind":"number","value":4590627,"string":"4,590,627"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Tanvir v. Tanzin"},"decision_date":{"kind":"string","value":"2019-02-14"},"docket_number":{"kind":"string","value":"16-1176"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, PETER W. HALL, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, RICHARD J. SULLIVAN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"16‐1176 \\nTanvir v. Tanzin \\n\\n United States Court of Appeals\\n FOR THE SECOND CIRCUIT \\n \\n At a stated term of the United States Court of Appeals for the Second \\nCircuit, held at the Thurgood Marshall United States Courthouse, 40 Foley \\nSquare, in the City of New York, on the fourteenth day of February, two \\nthousand nineteen. \\n \\nPRESENT: \\n ROBERT A. KATZMANN, \\n Chief Judge, \\n DENNIS JACOBS, \\n JOSÉ A. CABRANES, \\n ROSEMARY S. POOLER, \\n PETER W. HALL, \\n DENNY CHIN, \\n RAYMOND J. LOHIER, JR., \\n SUSAN L. CARNEY, \\n CHRISTOPHER F. DRONEY, \\n RICHARD J. SULLIVAN, \\n Circuit Judges. \\n \\n \\nMUHAMMAD TANVIR, JAMEEL ALGIBHAH, \\nNAVEED SHINWARI, \\n \\n Plaintiffs‐Appellants, \\n \\n v. No. 16‐1176 \\n \\nFNU TANZIN, Special Agent, FBI; SANYA \\nGARCIA, Special Agent, FBI; JOHN LNU, Special \\nAgent, FBI; FRANCISCO ARTUSA, Special Agent, \\n\\n\\n Circuit Judge Debra Ann Livingston recused herself from these proceedings. \\n 1 \\n \\n\\nFBI; JOHN C. HARLEY III, Special Agent, FBI; \\nSTEVEN LNU, Special Agent, FBI; MICHAEL \\nLNU, Special Agent, FBI; GREGG GROSSOEHMIG, \\nSpecial Agent, FBI; WEYSAN DUN, Special Agent \\nin Charge, FBI; JAMES C. LANGENBERG, Assistant \\nSpecial Agent in Charge, FBI; JOHN DOE #1, Special \\nAgent, FBI; JOHN DOE #2, Special Agent, FBI; JOHN \\nDOE #3, Special Agent, FBI; JOHN DOE #4, Special \\nAgent, FBI; JOHN DOE #5, Special Agent, FBI; \\nJOHN DOE #6, Special Agent, FBI, \\n \\n Defendants‐Appellees. \\n \\n \\n \\nFor Plaintiffs‐Appellants: RAMZI KASSEM (Naz Ahmad, on the \\n brief), CLEAR Project, Main Street Legal \\n Services, Inc., City University of New \\n York School of Law, Long Island City, \\n NY. \\n \\n Jennifer R. Cowan, Erol Gulay, Sandy \\n Tomasik, Debevoise & Plimpton LLP, \\n New York, NY. \\n \\n Shayana D. Kadidal, Baher Azmy, \\n Center for Constitutional Rights, New \\n York, NY. \\n \\nFor Defendants‐Appellees: ELLEN BLAIN, Assistant United States \\n Attorney (Benjamin H. Torrance, \\n Assistant United States Attorney, on the \\n brief), for Geoffrey S. Berman, United \\n States Attorney for the Southern \\n District of New York, New York, NY. \\n \\n\\n 2 \\n \\n\\n \\n Following disposition of this appeal on June 25, 2018, an active judge of the \\nCourt requested a poll on whether to rehear the case en banc. A poll having been \\nconducted and there being no majority favoring en banc review, rehearing en banc \\nis hereby DENIED. \\n \\n Rosemary S. Pooler, Circuit Judge, joined by Robert A. Katzmann, Chief\", \"author\": \"Chief Judge\"}, {\"type\": \"concurrence\", \"text\": \"Judge, concurs by opinion in the denial of rehearing en banc. \\n \\n Dennis Jacobs, Circuit Judge, joined by José A. Cabranes and Richard J.\", \"author\": \"Judge\"}, {\"type\": \"dissent\", \"text\": \"Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc. \\n \\n José A. Cabranes, Circuit Judge, joined by Dennis Jacobs and Richard J.\", \"author\": \"Sullivan\"}, {\"type\": \"dissent\", \"author\": \"Sullivan\", \"text\": \"Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc. \\n \\n FOR THE COURT: \\n CATHERINE O’HAGAN WOLFE, CLERK \\n \\n\\n\\n\\n\\n 3 \\n \\n\\nROBERT A. KATZMANN, Chief Judge, and ROSEMARY S. POOLER, Circuit\"}, {\"author\": \"Judge, concurring\", \"type\": \"concurrence\", \"text\": \"Judge, concurring in the denial of rehearing en banc:1 \\n \\n Our dissenting colleagues do their level best to disguise the panel’s \\n\\nopinion as an extension of Bivens v. Six Unknown Named Agents of Federal Bureau \\n\\nof Narcotics, 403 U.S. 388 (1971). They claim that despite the Supreme Court’s \\n\\nrecent decisions restraining Bivens actions, the panel’s opinion effectively dabbles \\n\\nin the now‐forbidden practice of implying private rights of action. Dissent from \\n\\nthe Denial of Rehearing En Banc (Jacobs, J.), slip op. at 5; Dissent from the Denial \\n\\nof Rehearing En Banc (Cabranes, J.), slip op. at 1‐2. But these arguments deny an \\n\\nincontrovertible truth: the panel’s opinion does not imply a private right of \\n\\naction. To the contrary, RFRA contains an express private right of action with an \\n\\nexpress provision for “appropriate relief.” See 42 U.S.C. § 2000bb‐1(c).2 The panel \\n\\nopinion interprets RFRA’s express private right of action to support a damages \\n\\n1 Pursuant to Second Circuit En Banc Protocol 12, Judge Gerard E. Lynch, although a \\nmember of the panel that decided this case, is a Senior Judge and thus may not report \\nhis views on the petition for rehearing en banc. \\n \\n2 RFRA’s private right of action in its entirety states: \\n\\n \\n A person whose religious exercise has been burdened in violation of this \\n section may assert that violation as a claim or defense in a judicial \\n proceeding and obtain appropriate relief against a government. Standing \\n to assert a claim or defense under this section shall be governed by the \\n general rules of standing under article III of the Constitution. \\n \\n42 U.S.C. § 2000bb‐1(c). \\n\\nremedy where appropriate—a conclusion based on principles of statutory \\n\\ninterpretation that Bivens and its progeny do not touch. \\n\\n Separation of powers considerations compel the judiciary to exercise \\n\\n“caution with respect to actions in the Bivens context, where [an] action is \\n\\nimplied to enforce the Constitution itself.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 \\n\\n(2017). Undoubtedly, the Supreme Court’s hesitancy to apply Bivens to new \\n\\ncontexts reflect a concern for judicial absorption of legislative power: “[T]he \\n\\ninquiry must concentrate on whether the Judiciary is well suited, absent \\n\\ncongressional action or instruction, to consider and weigh the costs and benefits \\n\\nof allowing a damages action to proceed.” Id. at 1857‐58. The Court suggests that \\n\\nCongress is typically the best‐suited institution to resolve the “host of \\n\\nconsiderations that must be weighed and appraised” in deciding whether a \\n\\nremedy for constitutional or statutory rights exists. Id. at 1857 (internal quotation \\n\\nmarks omitted). \\n\\n But despite our dissenting colleagues’ protests, the Court’s reasoning in \\n\\nZiglar is inapplicable to the question of whether Congress’s provision in RFRA \\n\\nfor litigants to “obtain appropriate relief against a government,” 42 U.S.C. § \\n\\n2000bb‐1(c), contemplates a damages remedy. Franklin v. Gwinnett Cty. Pub. Schs., \\n\\n\\n\\n 2 \\n \\n\\n503 U.S. 60, 65‐66 (1992) (“[T]he question of what remedies are available under a \\n\\nstatute that provides a private right of action is analytically distinct from the \\n\\nissue of whether such a right exists in the first place.” (internal quotation marks \\n\\nomitted)). In the context of an implied remedy, the Ziglar Court instructed that \\n\\nthe answer to this question is that Congress typically decides “whether to \\n\\nprovide for a damages remedy.” 137 S. Ct. at 1857. This truism recognizes that \\n\\nthe judiciary’s power to impose liability by creating a private right of action vis‐\\n\\nà‐vis Congress’s silence is modest. See, e.g., Cort v. Ash, 422 U.S. 66, 78 (1975) \\n\\n(defining four searching requirements for implying a private right of action). By \\n\\ncontrast, in the context of a private right of action, Congress has already spoken \\n\\nto impose liability and thereby bestows the judiciary with greater power to effect \\n\\na remedy. E.g., Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is . . . well settled that \\n\\nwhere legal rights have been invaded, and a federal statute provides for a \\n\\ngeneral right to sue for such invasion, federal courts may use any available \\n\\nremedy to make good the wrong done.”). The role of the court in this case is \\n\\ndifferent because implying a right of action is a judicially constructed remedy, \\n\\nwhereas interpreting a statute to provide a damages remedy is a time‐honored \\n\\n\\n\\n\\n 3 \\n \\n\\nexercise of the judiciary’s power to grant relief where Congress has legislated \\n\\nliability. \\n\\n This makes sense. While it would upset the separation of powers for \\n\\nfederal courts “to award remedies when the Constitution or laws of the United \\n\\nStates do not support a cause of action,” if federal courts declined to recognize \\n\\nremedies for express causes of action, it “would harm separation of powers \\n\\nprinciples in another way, by giving judges the power to render inutile causes of \\n\\naction authorized by Congress.” Franklin, 503 U.S. at 74. Thus, the opinion, rather \\n\\nthan narrowly skirting the Supreme Court’s Bivens jurisprudence (as the dissents \\n\\nfrom rehearing darkly imply), recognizes the Court’s power where separation of \\n\\npowers concerns are weakest. \\n\\n It is therefore axiomatic that the judiciary’s interpretation of “appropriate \\n\\nrelief” as prescribed in an express right of action is not akin to a Bivens action. \\n\\nUnlike a Bivens action, where the Court itself implies a cause of action, Tanvir \\n\\nconsiders the scope of an express right of action with an express provision of \\n\\nremedies from Congress. This distinction is critical, and no sleight of the law can \\n\\nelide Bivens and the judiciary’s power to interpret statutes. \\n\\n\\n\\n\\n 4 \\n \\n\\n The opinion stands on its own to address the dissents’ remaining \\n\\narguments. We write separately merely to expose the dissents’ Bivens accusations \\n\\nas a red herring. \\n\\n\\n\\n\\n 5 \\n \\n\\nDENNIS JACOBS, Circuit Judge, joined by JOSÉ A. CABRANES and RICHARD J.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4367880/\", \"author_raw\": \"Judge, concurring\"}, {\"author\": \"SULLIVAN, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"SULLIVAN, Circuit Judges, dissenting from the denial of rehearing en banc: \\n \\n Plaintiffs allege that they were placed on the national “No Fly List,” \\n\\nthough they posed no threat to aviation, in retaliation for their refusal to become \\n\\nFBI informants reporting on fellow Muslims. The claim is that the retaliation \\n\\nthey suffered substantially burdened their exercise of religion, in violation of the \\n\\nReligious Freedom Restoration Act (“RFRA”), because their refusal was \\n\\ncompelled by Muslim tenets. \\n\\n The sufficiency of such a claim is not at issue on appeal; so the only issue is \\n\\nwhether RFRA affords a money‐damages remedy against federal officers sued in \\n\\ntheir individual capacities. The panel opinion argues that: the statute permits \\n\\n“appropriate relief against a government”; a government is defined to include “a \\n\\nbranch, department, agency, instrumentality, and official (or other person acting \\n\\nunder color of law)”; money damages is presumptively “appropriate relief”; and \\n\\ntherefore money damages is appropriate relief against individual officers. \\n\\n Because the panel’s reasoning fails as a matter of law and logic and runs \\n\\ncounter to clear Supreme Court guidance on this subject, I would grant in banc \\n\\nreview and reverse the panel’s erroneous creation of a right to money damages \\n\\nunder RFRA. Indeed, the panel’s expansive conclusion could be viewed without \\n\\n 1 \\n \\n\\nalarm only by people (judges and law clerks) who enjoy absolute immunity from \\n\\nsuch suits. \\n\\n I \\n \\n RFRA states in relevant part that “[a] person whose religious exercise has \\n\\nbeen burdened in violation of this section may assert that violation as a claim or \\n\\ndefense in a judicial proceeding and obtain appropriate relief against a \\n\\ngovernment.” 42 U.S.C. § 2000bb‐1(c). As to whether this statute affords a \\n\\nmoney‐damages remedy against individual federal officers, precedent points the \\n\\nway with graphic simplicity. \\n\\n This Court has already decided the scope of an identical private right of \\n\\naction in the Religious Land Use and Institutionalized Persons Act of 2000 \\n\\n(“RLUIPA”). RLUIPA and RFRA alike forbid substantial burdens on religious \\n\\nexercise: RLUIPA applies to the states, while RFRA applies to the federal \\n\\ngovernment. We held that the phrase “appropriate relief against a government” \\n\\nin RLUIPA does not create a private right of action against state officials sued in \\n\\ntheir individual capacities. Washington v. Gonyea, 731 F.3d 143, 146 (2d Cir. 2013). \\n\\nWashington is fully consistent with the Supreme Court’s ruling that RLUIPA does \\n\\n\\n\\n\\n 2 \\n \\n\\nnot authorize private suits for money damages against the states themselves. \\n\\nSossamon v. Texas, 563 U.S. 277, 293 (2011). \\n\\n The district court followed these precedents. The panel opinion labors to \\n\\ndistinguish them. To distinguish Washington and Sossamon, the panel opinion \\n\\nemphasizes that they were informed by Congress’s Spending Clause powers and \\n\\nby state sovereign immunity (respectively), considerations not present here. But \\n\\nin Sossamon, the Supreme Court relied not on sovereign immunity alone, but on \\n\\nthe plain meaning of the text. The Court explained that the phrase “appropriate \\n\\nrelief” takes its meaning from “context.” Sossamon, 563 U.S. at 286. In RLUIPA \\n\\n(as in RFRA) the context is clear: the full phrase is “appropriate relief against a \\n\\ngovernment.” As the Supreme Court explained, “[t]he context here‐‐where the \\n\\ndefendant is a sovereign‐‐suggests, if anything, that monetary damages are not \\n\\n‘suitable’ or ‘proper.’” Id. Given that RFRA and RLUIPA attack the same wrong, \\n\\nin the same way, in the same words, it is implausible that “appropriate relief \\n\\nagainst a government” means something different in RFRA, and includes money \\n\\ndamages. \\n\\n As the panel opinion concedes, “RLUIPA borrows . . . an express private \\n\\ncause of action that is taken from RFRA”; “[a]s a result, courts commonly apply \\n\\n\\n\\n 3 \\n \\n\\nRFRA case law to issues arising under RLUIPA and vice versa.” Op. 31 n.8 \\n\\n(internal quotation marks omitted). And the holding in Washington‐‐that \\n\\nRLUIPA creates no private right of action against state officials in their \\n\\nindividual capacities‐‐was reached “as a matter of statutory interpretation.” 731 \\n\\nF.3d at 146. \\n\\n The panel opinion deems it significant that RFRA’s definition of \\n\\n“government” includes an “official (or other person acting under color of law).” \\n\\nThe use of language similar to that found in 42 U.S.C. § 1983, the panel argues, \\n\\nsuggests personal liability for money damages under RFRA. This argument is \\n\\nself‐defeating. First, the inclusion of the word “official” in the definition of \\n\\n“government” would be required simply to facilitate injunctive relief; it therefore \\n\\ntells us nothing about damages. Moreover, Congress’s use of a definition similar \\n\\nto that found in § 1983 only highlights the fact that Congress declined to enact \\n\\nrelief similar to that found in § 1983. RFRA contains nothing akin to § 1983’s \\n\\nexplicit endorsement of suits for money damages (“shall be liable to the party \\n\\ninjured in an action at law, suit in equity, or other proper proceedings for redress \\n\\n. . .”). Surely this was not a careless oversight. \\n\\n\\n\\n\\n 4 \\n \\n\\n The panel opinion also fails to account adequately for the limiting term \\n\\n“appropriate relief,” which “is open‐ended and ambiguous about what types of \\n\\nrelief it includes.” Sossamon, 563 U.S. at 286. “Far from clearly identifying money \\n\\ndamages, the word ‘appropriate’ is inherently context‐dependent,” Sossamon, 563 \\n\\nU.S. at 286, and we must therefore consider what forms of relief may be \\n\\nappropriate against different persons defined in RFRA as components of \\n\\ngovernment. \\n\\n The reading of RLUIPA is easily extended to the reading of RFRA. The \\n\\nDistrict of Columbia Circuit recognized in Webman v. Fed. Bureau of Prisons, 441 \\n\\nF.3d 1022, 1026 (D.C. Cir. 2006), that “appropriate relief against a government” in \\n\\nRFRA does not include money damages against the federal government‐‐just as \\n\\nthe Supreme Court in Sossamon later read the same wording in RLUIPA to \\n\\nforeclose a money damages award against a state. I would follow suit, and align \\n\\nthis case, which considers personal damages awards under RFRA, with our \\n\\nWashington precedent on personal damages awards under RLUIPA. \\n\\n As the district court opinion observed, “every other federal statute \\n\\nidentified by Plaintiffs as recognizing a personal capacity damages action against \\n\\nfederal officers . . . includes specific reference to the availability of damages.” \\n\\n\\n\\n 5 \\n \\n\\nTanvir v. Lynch, 128 F. Supp. 3d 756, 778 (S.D.N.Y. 2015) (subsequent history \\n\\nomitted). The omission of any such language in RFRA is telling, and in my view \\n\\nconclusive. \\n\\n II \\n \\n Proceeding backwards, the panel opinion observes that RFRA’s legislative \\n\\nhistory does not evince “a clear and express indication that Congress intended to \\n\\nexclude individual damages claims from the scope of RFRA’s available relief.” \\n\\nOp. 55 (emphasis added). Maybe; but the absence of such an indication does not \\n\\nsupport a positive inference. The opinion’s (lame) conclusion is that it was “at \\n\\nleast possible at the time that Congress passed RFRA that an individual damages \\n\\nclaim would have been available for a free exercise violation.” Op. 53. \\n\\n If a statute imposes personal damages liability against individual federal \\n\\nofficers, one would expect that to be done explicitly, rather than by indirection, \\n\\nhint, or negative pregnant. There is no such explicit wording in RFRA because \\n\\nthe manifest statutory purpose has nothing to do with such a remedy. The \\n\\nReligious Freedom Restoration Act was enacted to restore religious freedom that \\n\\nCongress believed had been curtailed by Employment Division v. Smith, 494 U.S. \\n\\n872 (1990), which held that under the First Amendment no compelling \\n\\n\\n\\n 6 \\n \\n\\ngovernment interest is required to justify substantial burdens on religious \\n\\nexercise imposed by laws of general application. \\n\\n As the panel opinion concedes, RFRA’s legislative history was “absolutely \\n\\nclear” that “the act does not expand, contract or alter the ability of a claimant to \\n\\nobtain relief in a manner consistent with the Supreme Court’s free exercise \\n\\njurisprudence under the compelling governmental interest test prior to Smith.” \\n\\nOp. 50 (internal quotation marks omitted). The panel opinion fails to draw the \\n\\nobvious inference: in the Supreme Court’s free exercise jurisprudence pre‐Smith, \\n\\nthe Court had never held that damages against the government for First \\n\\nAmendment violations were available‐‐let alone personal damages against \\n\\nindividual federal officers. That is unsurprising given the default principle that \\n\\n“a waiver of the Government’s sovereign immunity will be strictly construed, in \\n\\nterms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 \\n\\n(1996). \\n\\n III \\n \\n To support the idea that RFRA provides a personal damages remedy \\n\\nagainst individual officers, the panel relies on Franklin v. Gwinnett County Public \\n\\nSchools, 503 U.S. 60 (1992). Franklin, however, does not create a presumption in \\n\\n\\n\\n 7 \\n \\n\\nfavor of money damages; rather, it simply recognizes a presumption (in the \\n\\nabsence of contrary indication) that a private right of action is enforced by all \\n\\n“appropriate” remedies. That of course simply begs the question. Indeed, RFRA \\n\\nitself already speaks of “appropriate relief”; so Franklin provides no new \\n\\ninformation. In other cases, of course, the Supreme Court has offered guidance \\n\\nregarding whether money damages are generally considered appropriate relief \\n\\nagainst governments and government officials. Its answer is no. See, e.g., Ziglar \\n\\nv. Abbasi, 137 S. Ct. 1843, 1856 (2017); Sossamon, 563 U.S. at 286. \\n\\n In any event, the Franklin presumption was created in the context of an \\n\\nimplied right of action “[w]ith no statutory text to interpret.” Sossamon, 563 U.S. \\n\\nat 288. That presumption is held in Sossamon to be “irrelevant to construing the \\n\\nscope of an express waiver of sovereign immunity.” Id. The waiver of sovereign \\n\\nimmunity in RFRA is of course “express.” \\n\\n The panel opinion detects irony in a rule that may presume a broader set \\n\\nof remedies in an implied right of action than in a right of action that is express. \\n\\nBut irony is dispelled when one considers that implied rights of action for \\n\\ndamages against individual federal officers‐‐i.e., Bivens actions‐‐are not in vogue; \\n\\nthey are tolerated in the few existing contexts, and may never be created in any \\n\\n\\n\\n 8 \\n \\n\\nother context whatsoever. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) \\n\\n(“[W]e have consistently refused to extend Bivens liability to any new context or \\n\\nnew category of defendants.”); see also Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. \\n\\n2009) (in banc). \\n\\n The panel has done what the Supreme Court has forbidden: it has created \\n\\na new Bivens cause of action, albeit by another name and by other means. The \\n\\nSupreme Court did not shut the Bivens door so that we could climb in a window. \\n\\nThe panel ignores the considerations that inform the Supreme Court’s refusal to \\n\\nextend Bivens. A private right of action for money damages against individual \\n\\nofficers of “a government” entails “substantial social costs, including the risk that \\n\\nfear of personal monetary liability and harassing litigation will unduly inhibit \\n\\nofficials in the discharge of their duties.” Anderson v. Creighton, 483 U.S. 635, 638 \\n\\n(1987). We must consider “the burdens on Government employees who are sued \\n\\npersonally,” and the “costs and consequences to the Government itself when the \\n\\ntort and monetary liability mechanisms of the legal system are used to bring \\n\\nabout the proper formulation and implementation of public policies.” See Ziglar, \\n\\n137 S. Ct. at 1858. \\n\\n\\n\\n\\n 9 \\n \\n\\n The remedy created by the panel opinion is considerably more inhibiting \\n\\nthan the personal damages remedy in the context of 42 U.S.C. § 1983, which is \\n\\nmitigated by qualified immunity. The panel opinion mentions (without \\n\\ndeciding) that qualified immunity may be available as possible mitigation. \\n\\nMitigation of error is always encouraging, and I have no doubt that qualified \\n\\nimmunity does apply here. Indeed, I have difficulty imagining a scenario in \\n\\nwhich its applicability would be more apparent: the defendants here are FBI \\n\\nagents pursuing a national security investigation, and were never told that \\n\\nPlaintiffs believed cooperating with an investigation “burdened their religious \\n\\nbeliefs.” Yet a court’s finding of qualified immunity is never a foregone \\n\\nconclusion, and many courts‐‐including our own‐‐have occasionally failed to \\n\\napply it when appropriate. See, e.g., Iqbal v. Hasty, 490 F.3d 143, 153 (2d Cir. \\n\\n2007). The panel’s remand on this issue sows doubt where there should be none. \\n\\n With or without qualified immunity, such liability would result in federal \\n\\npolicy being made (or frozen) by the prospect of impact litigation. The safest \\n\\ncourse for a government employee in doubt would be to avoid doing one’s job, \\n\\nwhich is not a choice in need of encouragement. \\n\\n \\n\\n\\n\\n 10 \\n \\n\\n * * * \\n \\n I respectfully dissent from the denial of in banc review because the panel \\n\\nopinion is quite wrong and actually dangerous. \\n\\n \\n\\n\\n\\n\\n 11 \\n \\n\\nJOSÉ A. CABRANES, Circuit Judge, joined by DENNIS JACOBS and RICHARD J.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4367880/\", \"author_raw\": \"SULLIVAN, Circuit Judges, dissenting\"}, {\"author\": \"SULLIVAN, Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"SULLIVAN, Circuit Judges, dissenting from the denial of rehearing en banc: \\n \\n I fully join Judge Jacobs’ thorough dissent, which does the heavy lifting on \\n\\nthe merits. I write separately simply to emphasize that the panel decision \\n\\nrepresents a transparent attempt to evade, if not defy, the precedents of the \\n\\nSupreme Court. \\n\\n For nearly half a century, the Supreme Court has “consistently rejected \\n\\ninvitations” to extend the Bivens remedy to new contexts. Corr. Servs. Corp. v. \\n\\nMalesko, 534 U.S. 61, 70 (2001). Yet twelve years ago, in Iqbal v. Hasty, 490 F.3d 143 \\n\\n(2d Cir. 2007), a panel of our Court entertained the extension of Bivens to several \\n\\nsuch contexts, including violations of the Free Exercise clause. In Ashcroft v. Iqbal, \\n\\n556 U.S. 662 (2009), the Supreme Court forcefully reversed, reminding us not to \\n\\n“extend Bivens liability to any new context or new category of defendants” \\n\\nincluding “an implied damages remedy under the Free Exercise Clause.” Id. at \\n\\n675 (internal quotation marks omitted). \\n\\n Nevertheless, four years ago, there was another attempt to evade the \\n\\nSupreme Court’s clear instruction. In Turkmen v. Hasty, 789 F.3d 218 (2d Cir. \\n\\n2015), a panel of our Court sought to extend the Bivens remedy to the \\n\\nextraordinary case of officials implementing national security policy. A motion to \\n\\n 1 \\n \\n\\nrehear the case en banc failed by vote of an evenly divided court (6‐6). See 808 \\n\\nF.3d 197 (2d Cir. 2015). Once again, however, the Supreme Court intervened, \\n\\nreining in our Court’s misplaced enthusiasm for creating official liability ex nihilo. \\n\\nSee Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). \\n\\n In Ziglar, the Supreme Court not only reversed us, but patiently explained \\n\\nwhy damages remedies against government officials are disfavored and should \\n\\nnot be recognized absent explicit congressional authorization: “Claims against \\n\\nfederal officials often create substantial costs, in the form of defense and \\n\\nindemnification . . . time and administrative costs . . . resulting from the \\n\\ndiscovery and trial process.” Id. at 1856. These costs, the Supreme Court \\n\\ninstructed, provide “sound reasons to think Congress might doubt the efficacy or \\n\\nnecessity of a damages remedy.” Id. at 1858. Thus “courts must refrain from \\n\\ncreating the remedy in order to respect the role of Congress.” Id. \\n\\n It appears our Court is still incapable of learning this lesson. In the instant \\n\\ncase, however, we have developed still another rationalization for avoiding the \\n\\nSupreme Court’s instruction. “We are not extending Bivens,” the panel in effect \\n\\ninsists. “We are simply presuming that Congress legislated a Bivens‐like \\n\\nremedy—sub silentio—in enacting RFRA.” \\n\\n\\n\\n 2 \\n \\n\\n This rationalization is as flawed as it is transparent. Insofar as this panel \\n\\nsuggests we may assume that Congress authorized such damages implicitly, \\n\\nZiglar reminds us that “Congress will be explicit if it intends to create a new \\n\\nprivate cause of action” or “substantive legal liability,” particularly for \\n\\ngovernment officials. Id. at 1856‐57. Insofar as the panel suggests that Congress \\n\\nincidentally legislated such a remedy—as part of its general intent to restore the \\n\\nFree Exercise legal structure antedating Employment Division v. Smith, 494 U.S. \\n\\n872 (1990)—Iqbal makes clear that damages are not, and never have been, \\n\\navailable for Free Exercise claims. 556 U.S. at 676. \\n\\n In sum, RFRA reveals no Congressional intent to create a damages \\n\\nremedy, and on no theory may we presume it. \\n\\n When asked why he persisted in issuing decisions that the Supreme Court \\n\\nwould predictably overturn, a prominent judge of another circuit once explained, \\n\\n“[t]hey can’t catch ’em all.”1 Such an attitude is not, and must not become, the \\n\\napproach of our Circuit. \\n\\n\\n\\n\\n \\n1 Linda Greenhouse, Dissenting Against the Supreme Court’s Rightward Shift, N.Y. TIMES, \\nApril 12, 2018, https://www.nytimes.com/2018/04/12/opinion/supreme‐court‐right \\n‐shift.html. \\n 3\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4367880/\", \"author_raw\": \"SULLIVAN, Circuit Judges, dissenting\"}]}"},"judge1":{"kind":"string","value":"ROBERT A KATZMANN"},"judge2":{"kind":"string","value":"DENNIS JACOBS"},"judge3":{"kind":"string","value":"JOSÉ A CABRANES"},"exactly_three_caps":{"kind":"number","value":2,"string":"2"},"extra_judges":{"kind":"string","value":"ROSEMARY S POOLER; PETER W HALL; DENNY CHIN; RAYMOND J LOHIER JR; SUSAN L CARNEY; CHRISTOPHER F DRONEY; RICHARD J SULLIVAN"},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":7,"string":"7"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":4,"string":"4"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4590627/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Tanvir v. Tanzin\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-14\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n16‐1176 \nTanvir v. Tanzin \n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n \n At a stated term of the United States Court of Appeals for the Second \nCircuit, held at the Thurgood Marshall United States Courthouse, 40 Foley \nSquare, in the City of New York, on the fourteenth day of February, two \nthousand nineteen. \n \nPRESENT: \n ROBERT A. KATZMANN, \n Chief Judge, \n DENNIS JACOBS, \n JOSÉ A. CABRANES, \n ROSEMARY S. POOLER, \n PETER W. HALL, \n DENNY CHIN, \n RAYMOND J. LOHIER, JR., \n SUSAN L. CARNEY, \n CHRISTOPHER F. DRONEY, \n RICHARD J. SULLIVAN, \n Circuit Judges. \n \n \nMUHAMMAD TANVIR, JAMEEL ALGIBHAH, \nNAVEED SHINWARI, \n \n Plaintiffs‐Appellants, \n \n v. No. 16‐1176 \n \nFNU TANZIN, Special Agent, FBI; SANYA \nGARCIA, Special Agent, FBI; JOHN LNU, Special \nAgent, FBI; FRANCISCO ARTUSA, Special Agent, \n\n\n Circuit Judge Debra Ann Livingston recused herself from these proceedings. \n 1 \n \n\nFBI; JOHN C. HARLEY III, Special Agent, FBI; \nSTEVEN LNU, Special Agent, FBI; MICHAEL \nLNU, Special Agent, FBI; GREGG GROSSOEHMIG, \nSpecial Agent, FBI; WEYSAN DUN, Special Agent \nin Charge, FBI; JAMES C. LANGENBERG, Assistant \nSpecial Agent in Charge, FBI; JOHN DOE #1, Special \nAgent, FBI; JOHN DOE #2, Special Agent, FBI; JOHN \nDOE #3, Special Agent, FBI; JOHN DOE #4, Special \nAgent, FBI; JOHN DOE #5, Special Agent, FBI; \nJOHN DOE #6, Special Agent, FBI, \n \n Defendants‐Appellees. \n \n \n \nFor Plaintiffs‐Appellants: RAMZI KASSEM (Naz Ahmad, on the \n brief), CLEAR Project, Main Street Legal \n Services, Inc., City University of New \n York School of Law, Long Island City, \n NY. \n \n Jennifer R. Cowan, Erol Gulay, Sandy \n Tomasik, Debevoise & Plimpton LLP, \n New York, NY. \n \n Shayana D. Kadidal, Baher Azmy, \n Center for Constitutional Rights, New \n York, NY. \n \nFor Defendants‐Appellees: ELLEN BLAIN, Assistant United States \n Attorney (Benjamin H. Torrance, \n Assistant United States Attorney, on the \n brief), for Geoffrey S. Berman, United \n States Attorney for the Southern \n District of New York, New York, NY. \n \n\n 2 \n \n\n \n Following disposition of this appeal on June 25, 2018, an active judge of the \nCourt requested a poll on whether to rehear the case en banc. A poll having been \nconducted and there being no majority favoring en banc review, rehearing en banc \nis hereby DENIED. \n \n Rosemary S. Pooler, Circuit Judge, joined by Robert A. Katzmann, Chief\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Tanvir v. Tanzin\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-14\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16‐1176 \\nTanvir v. Tanzin \\n\\n United States Court of Appeals\\n FOR THE SECOND CIRCUIT \\n \\n At a stated term of the United States Court of Appeals for the Second \\nCircuit, held at the Thurgood Marshall United States Courthouse, 40 Foley \\nSquare, in the City of New York, on the fourteenth day of February, two \\nthousand nineteen. \\n \\nPRESENT: \\n ROBERT A. KATZMANN, \\n Chief Judge, \\n DENNIS JACOBS, \\n JOSÉ A. CABRANES, \\n ROSEMARY S. POOLER, \\n PETER W. HALL, \\n DENNY CHIN, \\n RAYMOND J. LOHIER, JR., \\n SUSAN L. CARNEY, \\n CHRISTOPHER F. DRONEY, \\n RICHARD J. SULLIVAN, \\n Circuit Judges. \\n \\n \\nMUHAMMAD TANVIR, JAMEEL ALGIBHAH, \\nNAVEED SHINWARI, \\n \\n Plaintiffs‐Appellants, \\n \\n v. No. 16‐1176 \\n \\nFNU TANZIN, Special Agent, FBI; SANYA \\nGARCIA, Special Agent, FBI; JOHN LNU, Special \\nAgent, FBI; FRANCISCO ARTUSA, Special Agent, \\n\\n\\n Circuit Judge Debra Ann Livingston recused herself from these proceedings. \\n 1 \\n \\n\\nFBI; JOHN C. HARLEY III, Special Agent, FBI; \\nSTEVEN LNU, Special Agent, FBI; MICHAEL \\nLNU, Special Agent, FBI; GREGG GROSSOEHMIG, \\nSpecial Agent, FBI; WEYSAN DUN, Special Agent \\nin Charge, FBI; JAMES C. LANGENBERG, Assistant \\nSpecial Agent in Charge, FBI; JOHN DOE #1, Special \\nAgent, FBI; JOHN DOE #2, Special Agent, FBI; JOHN \\nDOE #3, Special Agent, FBI; JOHN DOE #4, Special \\nAgent, FBI; JOHN DOE #5, Special Agent, FBI; \\nJOHN DOE #6, Special Agent, FBI, \\n \\n Defendants‐Appellees. \\n \\n \\n \\nFor Plaintiffs‐Appellants: RAMZI KASSEM (Naz Ahmad, on the \\n brief), CLEAR Project, Main Street Legal \\n Services, Inc., City University of New \\n York School of Law, Long Island City, \\n NY. \\n \\n Jennifer R. Cowan, Erol Gulay, Sandy \\n Tomasik, Debevoise & Plimpton LLP, \\n New York, NY. \\n \\n Shayana D. Kadidal, Baher Azmy, \\n Center for Constitutional Rights, New \\n York, NY. \\n \\nFor Defendants‐Appellees: ELLEN BLAIN, Assistant United States \\n Attorney (Benjamin H. Torrance, \\n Assistant United States Attorney, on the \\n brief), for Geoffrey S. Berman, United \\n States Attorney for the Southern \\n District of New York, New York, NY. \\n \\n\\n 2 \\n \\n\\n \\n Following disposition of this appeal on June 25, 2018, an active judge of the \\nCourt requested a poll on whether to rehear the case en banc. A poll having been \\nconducted and there being no majority favoring en banc review, rehearing en banc \\nis hereby DENIED. \\n \\n Rosemary S. Pooler, Circuit Judge, joined by Robert A. Katzmann, Chief\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":494,"cells":{"id":{"kind":"number","value":4590628,"string":"4,590,628"},"name":{"kind":"string","value":"John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee."},"name_abbreviation":{"kind":"string","value":"Doe v. United States"},"decision_date":{"kind":"string","value":"2019-02-14"},"docket_number":{"kind":"string","value":"Docket 17-1841; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Katzmann, Kearse, Chin\", \"parties\": \"\", \"opinions\": [{\"author\": \"KATZMANN, Chief Judge\", \"type\": \"010combined\", \"text\": \"17-1841\\nDoe v. United States\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n _______________\\n\\n August Term, 2018\\n\\n (Argued: October 22, 2018 Decided: February 14, 2019)\\n\\n Docket No. 17-1841\\n\\n _______________\\n\\n JOHN DOE,\\n\\n Petitioner-Appellant,\\n\\n —v.—\\n\\n UNITED STATES OF AMERICA,\\n\\n Respondent-Appellee.\\n _______________\\n\\n B e f o r e:\\n\\n KATZMANN, Chief Judge, KEARSE AND CHIN, Circuit Judges.\\n\\n _______________\\n\\n Petitioner-appellant John Doe appeals from a judgment entered in the\\n United States District Court for the\\n Doe filed a petition for a writ of error coram nobis seeking to vacate his earlier\\n\\n\\n 1\\n\\fconviction for conspiracy . The petition argues that Doe’s\\ndefense counsel was ineffective in affirmatively assuring him that there should\\nbe no immigration consequences for pleading guilty when, in fact, the crime to\\nwhich he pleaded was an aggravated felony resulting in mandatory removal.\\nThe Government joined in Doe’s petition after originally opposing it; the district\\ncourt nevertheless denied the petition. On appeal, Doe argues that the district\\ncourt applied incorrect legal standards in evaluating the petition and that the\\ncourt abused its discretion in denying relief. The Government now argues that\\nthe district court’s decision was not an abuse of discretion. We agree with Doe\\nthat the court below erred and that Doe is entitled to relief. Accordingly, the\\njudgment of the district court is REVERSED and the case is REMANDED.\\n _______________\\n\\n , for Petitioner-Appellant.\\n\\n (argued), Assistant United\\n States Attorneys, for , United States\\n Attorney for the\\n for Respondent-Appellee.\\n\\n _______________\\n\\n KATZMANN, Chief Judge:\\n\\n Petitioner-Appellant John Doe 1 filed a writ of coram nobis in 2014 to vacate\\n\\na prior conviction. Both the Government and Doe’s original attorney admitted\\n\\nthat Doe was misled as to the serious immigration consequences of the crime to\\n\\n\\n\\n\\n 1\\n Petitioner has been given the pseudonym “John Doe” throughout this litigation\\nto safeguard his identity. All citations to the record in this case have been omitted.\\n\\n 2\\n\\fwhich he pleaded guilty. The Government, after initially opposing the coram\\n\\nnobis petition, joined in asking the district court to grant it. The district court\\n\\nnevertheless denied the petition. Troublingly, the Government has now switched\\n\\npositions again, arguing that the district court did not abuse its discretion. On\\n\\nreview, we grant the petition.\\n\\n BACKGROUND\\n\\n Pursuant to a plea agreement, Doe pleaded guilty in to a one-count\\n\\ninformation charging him with conspiracy\\n\\n\\n\\n\\n . As part of\\n\\nhis agreement, Doe consented to cooperate with the Government. Doe was\\n\\nsentenced in to .\\n\\n In , Doe filed a petition for a writ of error coram nobis. According to the\\n\\npetition, Doe’s attorney had assured him that his plea should not result in\\n\\nremoval, when in fact the admitted loss amount rendered it an\\n\\naggravated felony, resulting in a lifetime citizenship bar, a conclusive\\n\\npresumption of deportability, and automatic denial of discretionary relief. See\\n\\n\\n\\n 3\\n\\f8 U.S.C. §§ 1101(a)(43)(M)(i) (defining aggravated felony as including “an offense\\n\\nthat involves fraud or deceit in which the loss to the victim or victims exceeds\\n\\n$10,000”), 1101(f)(8), 1227(a)(2)(A)(iii), 1228(c), 1229b(a)(3), 1229b(b)(1)(C),\\n\\n1427(a). The petition also included an earlier written statement in which Doe’s\\n\\ndefense attorney admitted that he was ignorant as to immigration law and so\\n\\nwas unaware that Doe’s conviction would lead to mandatory deportation. He\\n\\nand Doe had relied on the Government’s assurances that it would do everything\\n\\npossible to keep Doe in the country.\\n\\n After his sentencing, Doe applied to renew his green card, at which point\\n\\nhe was placed into removal proceedings. The agents with whom Doe had been\\n\\ncooperating referred him to new agents, and Doe agreed to cooperate with them\\n\\nin more sensitive matters. His removal proceedings were then administratively\\n\\nclosed. Now aware that he was deportable, Doe sought to vacate his conviction;\\n\\nhe was dissuaded by his handlers, who told him they would be able to obtain\\n\\ncitizenship for him or have his conviction vacated. With the agents’\\n\\nencouragement, Doe applied for citizenship; this application, however, was\\n\\ndenied around or . Agents continued to assure him that they would\\n\\n\\n\\n 4\\n\\fprocure him citizenship and to discourage him from discussing a vacatur motion\\n\\nwith attorneys. Finally, in , Doe recognized that the agents could not actually\\n\\nobtain citizenship for him and contacted a new lawyer.\\n\\n Doe then filed the instant coram nobis petition, after a delay of several\\n\\nmonths occasioned by the need to retrieve the original criminal complaint\\n\\nagainst him. The Government initially opposed the petition, asserting that Doe\\n\\ndid not meet the standard for coram nobis relief because he did not receive\\n\\nineffective assistance, he was not prejudiced by any ineffective assistance, and his\\n\\npetition was untimely. However, after meeting with Doe, the Government filed a\\n\\nletter with the court withdrawing its opposition. The Government requested that\\n\\nthe court (1) grant the coram nobis petition and (2) transfer the criminal case to the\\n\\n . At a hearing in , the Government\\n\\ninformed the court that after examining Second Circuit case law and meeting\\n\\nwith Doe—whose story the Government credited—the Government believed\\n\\nthat Doe had received ineffective assistance of counsel. Given the circuit law and\\n\\nthe factual circumstances, the Government determined that it “could not . . . in\\n\\ngood conscience oppose the motion.”\\n\\n\\n\\n 5\\n\\f The district court orally denied the petition, stating that it was “not\\n\\npersuaded.” Doe timely appealed the decision, seeking expedited summary\\n\\nreversal. This Court determined that the district court’s reasoning could not be\\n\\ndiscerned from the record; it remanded for the district court to identify the legal\\n\\nstandard applied and to explain its reasons for denying relief. The district court\\n\\nthen issued a written opinion denying Doe’s coram nobis petition. The court\\n\\nstated that no “‘serious constitutional question’ would be raised by withdrawing\\n\\n[Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly\\n\\nseems the remedy in this case, if one is even in order.” The court said that “the\\n\\nExecutive Branch . . . is requesting that the Judicial Branch remedy what the\\n\\nUnited States Attorney’s Office believes to be a wrong perpetrated by either ICE\\n\\nor the FBI,” a request which the court did “not believe . . . to be sound, given the\\n\\nseparation of powers doctrine.” After the district court issued its decision, Doe\\n\\nreinstated his appeal.\\n\\n\\n\\n\\n 6\\n\\f DISCUSSION\\n\\nI. Standard of Review\\n\\n “A writ of error coram nobis is an ‘extraordinary remedy’” typically granted\\n\\nonly when a prisoner is out of custody and so cannot pursue habeas relief. Kovacs\\n\\nv. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting United States v. Morgan, 346\\n\\nU.S. 502, 511 (1954)). We review de novo the legal standards that the district court\\n\\nhas applied but review for abuse of discretion the court’s ultimate decision to\\n\\ndeny the writ. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).\\n\\nII. Coram Nobis Relief\\n\\n The sole issue on appeal is whether the district court improperly denied\\n\\nDoe’s coram nobis petition. While the Government’s agreement with Doe below\\n\\nmight normally preclude it from opposing Doe now, see, e.g., Steagald v. United\\n\\nStates, 451 U.S. 204, 209 (1981); United States v. Gupta, 699 F.3d 682, 690 n.2 (2d\\n\\nCir. 2012); United States v. Canova, 412 F.3d 331, 347 (2d Cir. 2005), we will\\n\\nexercise our discretion to consider the matter on the merits, see Bogle-Assegai v.\\n\\nConnecticut, 470 F.3d 498, 504 (2d Cir. 2006), bearing in mind the concessions the\\n\\nGovernment has made both below and on appeal.\\n\\n\\n\\n 7\\n\\f To receive coram nobis relief, a petitioner must show “that 1) there are\\n\\ncircumstances compelling such action to achieve justice, 2) sound reasons exist\\n\\nfor failure to seek appropriate earlier relief, and 3) the petitioner continues to\\n\\nsuffer legal consequences from his conviction that may be remedied by granting\\n\\nof the writ.” Kovacs, 744 F.3d at 49 (quoting Foont v. United States, 93 F.3d 76, 79\\n\\n(2d Cir. 1996)). 2 The district court neither laid out nor applied these legal\\n\\nstandards. Instead, it cited cases that asked whether “the failure to allow for\\n\\ncollateral review would raise serious constitutional questions,” a test used to\\n\\ndetermine whether untimely habeas petitions alleging constitutional violations\\n\\n\\n\\n\\n 2 As the Government does not contest the third factor for receiving coram nobis\\nrelief, only the first and second factors are at issue here. See Norton v. Sam’s Club, 145\\nF.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered\\nwaived and normally will not be addressed on appeal.”). However, we note that Doe’s\\nconviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M), means that he “shall\\nbe conclusively presumed to be deportable,” id. § 1228(c); see id. § 1227(a)(2)(A)(iii), and\\nis ineligible for cancellation of removal or adjustment of status, id. § 1229b(a)(3),\\n(b)(1)(C). He is also categorically disqualified from proving moral character, id.\\n§ 1101(f)(8), which in turn disqualifies him from naturalized citizenship, id. § 1427(a).\\nThe fact that his deportation proceedings have been administratively stayed does not\\nalleviate these legal consequences, as Doe is still unable to apply for citizenship and\\nremains subject to mandatory removal at any moment if the Government removes the\\nstay. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (A.G. 2018) (prohibiting the use of\\nadministrative closure in most removal cases and requiring all administratively closed\\ncases to be re-calendared on the motion of either party unless they were closed pursuant\\nto an explicit grant of authority via regulation or judicially approved settlement).\\n\\n 8\\n\\fmay be brought under 28 U.S.C. § 2241. Triestman v. United States, 124 F.3d 361,\\n\\n377 (2d Cir. 1997). Doe argues that the district court applied the wrong legal\\n\\nstandards, and we agree. Under the correct standards, Doe merits relief.\\n\\n A. Ineffective Assistance\\n\\n Doe claims that his attorney misadvised him as to the immigration\\n\\nconsequences of his plea, and that there is a reasonable probability he would\\n\\nhave gone to trial, litigated a defense, or negotiated a different plea had he not\\n\\nbeen misadvised. Ineffective assistance of counsel, including during the plea-\\n\\nbargaining process, is a circumstance compelling the grant of a timely\\n\\napplication for coram nobis relief. Kovacs, 744 F.3d at 49. To prove ineffective\\n\\nassistance, a petitioner must show that “defense counsel’s performance was\\n\\nobjectively unreasonable” and that “the deficient performance prejudiced the\\n\\ndefense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “The\\n\\nquestion of whether a defendant’s lawyer’s representation violates the Sixth\\n\\nAmendment right to effective assistance of counsel is a mixed question of law\\n\\nand fact that is reviewed de novo.” LoCascio v. United States, 395 F.3d 51, 54 (2d\\n\\nCir. 2005) (citation omitted).\\n\\n\\n\\n 9\\n\\f The Government conceded both in the district court and on appeal that\\n\\nDoe’s counsel’s actions were objectively unreasonable. They were. At the time of\\n\\nDoe’s plea in , the Supreme Court had not yet held that attorneys must\\n\\naffirmatively warn their clients of the immigration consequences of their\\n\\npotential convictions. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). However,\\n\\nthis court had already held that “an affirmative misrepresentation by counsel as\\n\\nto the deportation consequences of a guilty plea is . . . objectively unreasonable.”\\n\\nUnited States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), abrogated on other grounds\\n\\nby Padilla, 559 U.S. 356.\\n\\n Doe claims that when he asked his defense counsel about the immigration\\n\\nconsequences of the proposed plea agreement, counsel indicated that, with Doe’s\\n\\ncooperation and an ultimate plea of guilty in this nonviolent case, Doe should\\n\\nnot have a problem with the immigration authorities and should not face\\n\\ndeportation. An earlier statement by Doe’s defense counsel effectively admitted\\n\\nas much. The statement noted that counsel neither was a practitioner of nor was\\n\\nknowledgeable about immigration law; that he and Doe had been assured by the\\n\\nGovernment that the Government would do everything it could to keep Doe\\n\\n\\n\\n 10\\n\\ffrom being deported; that the attorney and Doe had relied on the Government’s\\n\\nrepresentations; and that he had not been aware that deportation was mandatory\\n\\nfor the offense to which Doe was considering pleading guilty. The district court\\n\\nmade no findings as to the credibility of Doe’s or his attorney’s representations.\\n\\nThe Government, however, has credited Doe’s description of the events and of\\n\\nwhat he was told by government agents, and the Government has admitted that\\n\\ndefense counsel effectively conceded that he provided incorrect information to\\n\\nDoe as to whether mandatory deportation would result from his plea. Reviewing\\n\\nthe record de novo, we conclude that there is no genuine dispute as to the fact that\\n\\ncounsel’s representations to Doe, which inaccurately conveyed that his plea of\\n\\nguilty to the charge would not make his deportation mandatory, fell below\\n\\nan objective standard of reasonableness. Couto, 311 F.3d at 187 (finding\\n\\nineffective assistance when “counsel affirmatively misled [d]efendant into\\n\\nbelieving there were things that could be done to avoid deportation”).\\n\\n The question then becomes whether this misadvice prejudiced Doe. The\\n\\nGovernment asserts that the district court’s decision impliedly found a lack of\\n\\nprejudice and claims that this holding was not an abuse of discretion. However,\\n\\n\\n\\n 11\\n\\fthe court did not make any clear determination regarding whether Doe had met\\n\\nthe Strickland standard. Instead, applying an incorrect legal test, the court stated\\n\\nconclusorily that “[Doe] has not demonstrated that a ‘serious constitutional\\n\\nquestion’ would be raised by withdrawing his guilty plea at this stage, nor that\\n\\nany such constitutional question would be remedied by re-opening the\\n\\nInformation or transferring it to the .” We respectfully think the\\n\\nquestion is not whether vacating Doe’s conviction would raise a constitutional\\n\\nquestion, but rather whether allowing his conviction to stand would constitute a\\n\\nmiscarriage of justice.\\n\\n Assuming that the district court meant to say that no serious constitutional\\n\\nquestion would be raised by maintaining Doe’s conviction, we believe the court\\n\\nneither employed the correct legal standard nor examined whether Doe was\\n\\nprejudiced under Strickland. We therefore analyze the question ourselves.\\n\\nPrejudice exists “if it is shown that, but for counsel’s unprofessional errors, there\\n\\nwas a reasonable probability that the petitioner could have negotiated a plea that\\n\\ndid not impact immigration status or that he would have litigated an available\\n\\ndefense.” Kovacs, 744 F.3d at 52. Doe has shown both.\\n\\n\\n\\n 12\\n\\f As a predicate matter, a petitioner alleging ineffective assistance based on\\n\\nimmigration misadvice must “clearly demonstrate ‘that he placed particular\\n\\nemphasis on [immigration consequences] in deciding whether or not to plead\\n\\nguilty.’” Id. (citation omitted). 3 Courts cannot rely solely on “post hoc assertions\\n\\nfrom a defendant about how he would have pleaded but for his attorney’s\\n\\ndeficiencies”; we must also “look to contemporaneous evidence to substantiate a\\n\\ndefendant’s expressed preferences.” Jae Lee v. United States, 137 S. Ct. 1958, 1967\\n\\n(2017). This evidence shows that Doe was deeply concerned about deportation.\\n\\n\\n\\n\\n 3 The Government suggests that it was not an abuse of discretion for the district\\ncourt to find a lack of prejudice in light of Jae Lee v. United States, 137 S. Ct. 1958 (2017),\\nbecause Doe did not show either that deportation was the “determinative issue” for him\\nor that he “had a large number of discussions with his counsel” about it. The Jae Lee\\nCourt did note that, in that case, deportation was “determinative” for Lee, based on\\nLee’s “repeated[]” questioning of his attorney and on the testimony of Lee and Lee’s\\nattorney at an evidentiary hearing that Lee would have gone to trial if he had known\\nabout the risk of deportation. 137 S. Ct. at 1967-68. But Jae Lee did not say that a\\npetitioner must show that immigration consequences were his sole concern, or that he\\nhad engaged in a “large” number of immigration-related discussions with counsel.\\n(What constitutes a “large” number of discussions the Government does not say,\\nthough apparently it is more than the three with which the Government credits Doe.)\\nRather, the Court asked whether the petitioner “has adequately demonstrated a\\nreasonable probability that he would have rejected the plea had he known that it would\\nlead to mandatory deportation.” Jae Lee, 137 S. Ct. at 1967. Thus, Jae Lee did not alter the\\nstandard this court set in Kovacs.\\n\\n 13\\n\\f While the district court did not hold an evidentiary hearing on the petition,\\n\\nDoe submitted a declaration stating that during an early conversation with his\\n\\ncounsel, Doe asked about his immigration situation and his attorney indicated\\n\\nthat cooperation and an ultimate plea of guilty should not lead to deportation.\\n\\nCounsel told Doe “that it was not a violent crime, that [Doe] had a green card,\\n\\nand that essentially [Doe] should ‘be okay.’” When reviewing the plea agreement\\n\\nthat Doe ultimately signed, Doe asked counsel about the listed penalty of\\n\\ndeportation—another sign that Doe was particularly concerned about\\n\\nimmigration consequences—but counsel “soft-peddled the warning in the\\n\\nagreement as a possible penalty that was put in all agreements for people who\\n\\nwere not citizens.” The Government credited Doe’s statements below and does\\n\\nnot challenge them on appeal.\\n\\n Doe’s defense counsel also said in an earlier statement that he and Doe\\n\\nwere assured by the Government that they would do everything they could to\\n\\nkeep Doe in the United States, that the Government was aware of the extreme\\n\\ndanger Doe would face if he were sent back to his home country, and that\\n\\ncounsel and Doe relied on the representations the Government gave them at the\\n\\n\\n\\n 14\\n\\ftime of Doe’s plea. These statements buttress Doe’s claim that he would not have\\n\\npleaded guilty had he known about the deportation consequences of doing so.\\n\\n Evidence regarding Doe’s background likewise backs up Doe’s later\\n\\nassertions that he was focused on remaining in the country. His history in the\\n\\nUnited States, his family circumstances, and his gainful employment all signal\\n\\nDoe’s strong connection to, and desire to remain in, the United States. See Jae Lee,\\n\\n137 S. Ct. at 1968 (finding it relevant that “Lee had lived in the United States for\\n\\nnearly three decades, had established two businesses in Tennessee, and was the\\n\\nonly family member in the United States who could care for his elderly parents,”\\n\\nand that “there is no indication that he had any ties to South Korea [as] he had\\n\\nnever returned there since leaving as a child”). The Government “has given no\\n\\npersuasive reason to conclude that the likely grave immigration consequences of\\n\\nhis plea were not of great importance” to Doe. United States v. Gonzales, 884 F.3d\\n\\n457, 461 (2d Cir. 2018) (per curiam).\\n\\n While not contemporaneously documented, Doe’s statements regarding\\n\\nwhat occurred at his plea hearing add to his claim. The Government attempts to\\n\\nuse the plea hearing against Doe: it points to Doe’s statements during the plea\\n\\n\\n\\n 15\\n\\fhearing to argue that he pleaded guilty after being warned of the immigration\\n\\nconsequences of his plea. The district court stated that Doe “was instructed that\\n\\nhis entry of a plea of guilty could result in his deportation given that the value of\\n\\n exceeded $10,000 and therefore constituted an aggravated felony.”\\n\\nThe latter part of this statement was clear error. The magistrate judge did ask\\n\\nDoe, as part of a standard plea colloquy, if he understood that he “may be\\n\\ndeported as a result of this conviction.” Yet nowhere during the colloquy did the\\n\\ncourt inform Doe that the crime to which he was pleading guilty constituted an\\n\\naggravated felony, or what the mandatory consequences of pleading to an\\n\\naggravated felony would be. And Doe indicated in a declaration that his attorney\\n\\nmisadvised him further in response to the judge’s question, emphasizing that the\\n\\njudge said “may be” rather than “would be.” The Government does not\\n\\nchallenge Doe’s characterization of what occurred during the plea hearing. 4\\n\\n Given the evidence that Doe was quite concerned about remaining in the\\n\\ncountry, it is clear that he would have preferred to negotiate a plea that did not\\n\\n\\n\\n\\n The Government notes that there is no record that Doe’s counsel actually\\n 4\\n\\nstopped the proceedings, as counsel did in Jae Lee. But Jae Lee did not state that actual\\nstoppage is required in order to show prejudice. 137 S. Ct. at 1968 & n.4.\\n\\n 16\\n\\ftrigger mandatory removal. Likewise, there is “a reasonable probability that the\\n\\nprosecution would have accepted, and the court would have approved, a deal\\n\\nthat had no adverse effect on [his] immigration status.” Kovacs, 744 F.3d at 52.\\n\\nThe Government cited this language in Kovacs in explaining to the district court\\n\\nwhy it believed Doe’s counsel’s mistaken advice had prejudiced Doe. Therefore,\\n\\nin joining Doe’s motion, the Government implicitly admitted that a plea might\\n\\nhave been negotiated without mandatory immigration consequences. There is\\n\\nalso a reasonable probability that the court would have accepted a plea to a lesser\\n\\ncharge, since the court ultimately sentenced Doe to probation rather than prison.\\n\\n The entirety of the Government’s argument to the contrary on appeal is\\n\\nthat Doe does not cite any alternative charge that could have been brought. But it\\n\\nwas not necessary to bring a different charge. Doe pleaded to one count of\\n\\nconspiracy\\n\\n\\n\\n\\n 17\\n\\f It was eminently possible to keep the loss amount\\n\\nbetween and $10,000 by charging Doe for a conspiracy that only\\n\\nencompassed a few of his documented transactions.\\n\\n Moreover, while Doe did not point to another charge that could have\\n\\nformed the basis of a plea, one clearly existed:\\n\\n\\n\\n\\n There is a\\n\\nreasonable probability that, had all parties been aware of the possibility of\\n\\nmandatory deportation, the Government would have been willing to charge Doe\\n\\nwith based on one or more specific transactions with a total loss amount\\n\\nunder $10,000—rather than the higher loss and restitution amounts actually\\n\\ncharged—in exchange for the cooperation that Doe promised in his plea deal.\\n\\nGiven Doe’s promised cooperation, as well as the Government’s assurances\\n\\nduring plea negotiations that it would do everything it could to prevent Doe’s\\n\\nremoval, there is a reasonable probability that the Government would have\\n\\naccepted charging a lower loss amount.\\n\\n\\n\\n\\n 18\\n\\f There is also a reasonable probability that, had Doe known of the\\n\\nmandatory removal provision, Doe would have litigated an available defense.\\n\\nDoe asserts that he could have (and would have) tried the case or challenged the\\n\\nloss figure had he known that a plea would lead to deportation. The Government\\n\\nresponds that the evidence against Doe was too “overwhelming” to go to trial,\\n\\nand that Doe would have had no way to successfully challenge the loss amount.\\n\\nBut this is not entirely certain. There were ways for Doe to challenge both the\\n\\ncharges themselves and the loss amount. Doe provided some of the evidence\\n\\nagainst himself during his proffer sessions, which Doe claims he would not have\\n\\nundertaken had his attorney told him about the possibility of mandatory\\n\\ndeportation. Doe also might have contested intent, as he believed he had a good\\n\\nargument that he did not know the purpose of the and\\n\\nwas just .\\n\\n To contest the loss amount, Doe could have challenged the extent of his\\n\\ninvolvement in the scheme and argued that he should be held liable only for the\\n\\nlosses he himself caused. See United States v. Studley, 47 F.3d 569, 575 (2d Cir.\\n\\n1995) (holding that “the fact that the defendant is aware of the scope of the\\n\\n\\n\\n 19\\n\\foverall operation is not enough to hold him accountable for the activities of the\\n\\nwhole operation,” and that the key question is “what role the defendant agreed\\n\\nto play in the operation”). There was no indication in the complaint that Doe had\\n\\n“suggested” the crimes that caused the loss. United States v. Germosen, 139 F.3d\\n\\n120, 130 (2d Cir. 1998). Therefore, Doe could have argued that “[h]e followed\\n\\ninstructions on potential customers but did not design or\\n\\ndevelop the scam.” Id. He might then have only been held responsible for the\\n\\ntransactions he himself made—and Doe had a possible basis to argue that these\\n\\ntransactions totaled less than $10,000. The criminal complaint stated that Doe and\\n\\n and that together they caused well over\\n\\n$100,000 in losses; it did not state how much of the money went to Doe rather\\n\\nthan —information that could weigh on the nature or extent of\\n\\nany conspiracy. Doe also claimed that a second person\\n\\n\\n\\n\\n Thus, there\\n\\nwas a path available to Doe—albeit a narrow one—to challenge either the\\n\\n\\n\\n\\n 20\\n\\fcharges against him or the loss amount had he not cooperated under a mistaken\\n\\nimpression that he would be safe from removal.\\n\\n Moreover, the Supreme Court has clarified that “there is more to consider\\n\\nthan simply the likelihood of success at trial”; the inquiry focuses on the\\n\\ndefendant’s decision-making process, and “[t]he decision whether to plead guilty\\n\\nalso involves assessing the respective consequences of a conviction after trial and\\n\\nby plea.” Jae Lee, 137 S. Ct. at 1966. Here, even if Doe were likely to lose, it would\\n\\nbe far from irrational for Doe to litigate either the entire charge or the loss\\n\\namount, given his strong interest in remaining in the country. If Doe had fought\\n\\nthe charge in the information and lost, he would have had a Guidelines level of\\n\\n , exposing him to . His plea agreement left him at a\\n\\nGuidelines level of , for a Guidelines sentence. This difference\\n\\nin risk is slight enough to pursue even a small possibility of an acquittal or a\\n\\nsuccessful challenge of the loss figure. See id. at 1966-67. As Doe can show that he\\n\\nhad a reasonable probability either of negotiating a different plea or of going to\\n\\ntrial or litigating the loss amount, he has proven that his counsel’s immigration\\n\\nmisadvice was prejudicial. See Kovacs, 744 F.3d at 53 (“[T]he question is not\\n\\n\\n\\n 21\\n\\fwhether the defense would ultimately have been successful. Rather, the inquiry\\n\\nis whether the defense was viable and sufficiently promising that [petitioner]\\n\\nwould have litigated the defense to avoid immigration consequences.”).\\n\\n B. Sound Reasons for Delay\\n\\n To receive coram nobis relief, Doe must also show that he provided sound\\n\\nreasons for his delay in seeking to vacate his conviction. The district court did\\n\\nnot determine whether Doe had justified his delay. However, we must do so to\\n\\nresolve Doe’s claim. See Kovacs, 744 F.3d at 54. While “[n]o statute of limitations\\n\\ngoverns the filing of a coram nobis petition,” id., a petitioner must still show\\n\\n“sound reasons” for the delay in bringing the petition, Foont, 93 F.3d at 79. To\\n\\ndecide whether sound reasons exist, the court must focus on “the circumstances\\n\\nsurrounding the petitioner’s failure to raise the issue earlier rather than the\\n\\ngovernment’s injury that resulted from the delay.” Id. at 80. “The critical inquiry\\n\\n. . . is whether the petitioner is able to show justifiable reasons for the delay.” Id.\\n\\n Doe has provided sufficient reasons to justify his delay. He claims that his\\n\\nhandlers promised him that he would obtain citizenship or that they would get\\n\\nhis criminal case dismissed. The Government does not contest Doe’s contentions\\n\\n\\n\\n 22\\n\\fthat his handlers dissuaded him from seeking to vacate his conviction. Instead, it\\n\\nasserts that the timeline after Doe was denied citizenship in is somewhat\\n\\nvague, such that a court could plausibly conclude that he had not sufficiently\\n\\nexplained why he waited five more years before filing his petition. However, as\\n\\nnoted above, the district court did not actually decide the issue. Abuse-of-\\n\\ndiscretion review, therefore, is inappropriate here.\\n\\n In any case, Doe’s declarations provide sufficient justification for his delay.\\n\\nHe states, and the Government does not dispute, that agents continued to tell\\n\\nhim after his failed citizenship application that they would be able to provide\\n\\nhim the relief he sought. Doe’s recollection of a statement that his file was\\n\\n“a 7 out of 10” and that he should “just hold on and it would be 10 out of 10” and\\n\\nhe would get the relief he wanted, further explains why Doe continued to rely on\\n\\nhis handlers rather than a coram nobis petition to address his immigration\\n\\nproblem.\\n\\n Nor is the timeline as vague as the Government suggests. Doe clearly\\n\\nstates that he decided to pursue a petition directly prior to hiring counsel in ,\\n\\nonce he finally realized that his handlers could not, in fact, gain him citizenship.\\n\\n\\n\\n 23\\n\\fHe then moved with diligence, pausing only to procure the original criminal\\n\\ncomplaint. These facts clearly differentiate this case from those the Government\\n\\ncites, in which petitioners provided either patently insufficient justifications or\\n\\nno justifications at all. See, e.g., United States v. Sash, 374 F. App’x 198, 200 (2d Cir.\\n\\n2010) (summary order); Jae Hyun Ahn v. United States, 96 F. App’x 43, 44 (2d Cir.\\n\\n2004) (summary order); Rodriguez v. United States, No. 98 Cr. 00764 MHD, 2012\\n\\nWL 6082477, at *10 (S.D.N.Y. Dec. 4, 2012). Nor does “the Government . . .\\n\\nsuggest any tactical reason [Doe] would have delayed pursuit of the writ” absent\\n\\ncontinued discouragement from his handlers, Kovacs, 744 F.3d at 54—particularly\\n\\nsince the Government does not contest that Doe repeatedly discussed his desire\\n\\nto vacate his conviction with the agents. We therefore conclude that Doe’s\\n\\npetition was timely.\\n\\nIII. Vacatur of the Plea and Transfer\\n\\n Having concluded that Doe has met his burden to receive coram nobis\\n\\nrelief, we must determine the scope of that relief. The plea for relief in Doe’s\\n\\npetition asks only to vacate his conviction. However, both the petition itself and\\n\\nthe Government’s letter supporting the petition clearly contemplate vacatur of\\n\\n\\n\\n 24\\n\\fDoe’s guilty plea, as well. Both parties stated at oral argument that if we were to\\n\\ngrant Doe’s petition, we should also vacate Doe’s plea. We agree. We therefore\\n\\ndirect the district court to grant Doe’s coram nobis petition and vacate both his\\n\\nconviction and his plea.\\n\\n Finally, because the district court denied Doe’s coram nobis petition, it did\\n\\nnot rule on the Government’s request to transfer Doe’s criminal case to the\\n\\n . However, both parties consented to this transfer\\n\\nbelow and agree that such a transfer is the preferred outcome if the district\\n\\ncourt’s judgment is reversed. Given that “the convenience of the parties, . . . in\\n\\nthe interest of justice,” clearly favors transfer, Fed. R. Crim. P. 21(b), and that the\\n\\nparties have given their consent, we hereby direct the district court to transfer\\n\\nDoe’s underlying criminal case to the for further\\n\\nproceedings.\\n\\n CONCLUSION\\n\\n As we reflect on the Government’s troubling changing positions in this\\n\\nmatter—after having once rightly concluded that Doe is entitled to relief—we are\\n\\nreminded of then-Attorney General Robert F. Kennedy’s cautioning words: “It is,\\n\\n\\n\\n 25\\n\\fafter all, not the Department of Prosecution but the Department of Justice . . . .\\n\\n[T]he interest of the Government . . . is not that it shall win a case, but that justice\\n\\nshall be done.” 5 For the foregoing reasons, the judgment below is REVERSED,\\n\\nand the case is REMANDED to the district court with instructions to grant the\\n\\nwrit, vacate Doe’s plea and conviction, and transfer Doe’s criminal case to the\\n\\n .\\n\\n\\n\\n\\n 5\\n Robert F. Kennedy, Att’y Gen., Address to the National Conference on Bail and\\nCriminal Justice 2 (May 29, 1964) (available in the John F. Kennedy Library).\\n\\n 26\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4367881/\", \"author_raw\": \"KATZMANN, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"KATZMANN"},"judge2":{"kind":"string","value":"KEARSE"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4590628/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-1841\nDoe v. United States\n\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n _______________\n\n August Term, 2018\n\n (Argued: October 22, 2018 Decided: February 14, 2019)\n\n Docket No. 17-1841\n\n _______________\n\n JOHN DOE,\n\n Petitioner-Appellant,\n\n —v.—\n\n UNITED STATES OF AMERICA,\n\n Respondent-Appellee.\n _______________\n\n B e f o r e:\n\n KATZMANN, Chief Judge, KEARSE AND CHIN, Circuit Judges.\n\n _______________\n\n Petitioner-appellant John Doe appeals from a judgment entered in the\n United States District Court for the\n Doe filed a petition for a writ of error coram nobis seeking to vacate his earlier\n\n\n 1\n\fconviction for conspiracy . The petition argues that Doe’s\ndefense counsel was ineffective in affirmatively assuring him that there should\nbe no immigration consequences for pleading guilty when, in fact, the crime to\nwhich he pleaded was an aggravated felony resulting in mandatory removal.\nThe Government joined in Doe’s petition after originally opposing it; the district\ncourt nevertheless denied the petition. On appeal, Doe argues that the district\ncourt applied incorrect legal standards in evaluating the petition and that the\ncourt abused its discretion in denying relief. The Government now argues that\nthe district court’s decision was not an abuse of discretion. We agree with Doe\nthat the court below erred and that Doe is entitled to relief. Accordingly, the\njudgment of the district court is REVERSED and the case is REMANDED.\n _______________\n\n , for Petitioner-Appellant.\n\n (argued), Assistant United\n States Attorneys, for , United States\n Attorney for the\n for Respondent-Appellee.\n\n _______________\n\n KATZMANN, Chief Judge:\n\n Petitioner-Appellant John Doe 1 filed a writ of coram nobis in 2014 to vacate\n\na prior conviction. Both the Government and Doe’s original attorney admitted\n\nthat Doe was misled as to the serious immigration consequences of the crime to\n\n\n\n\n 1\n Petitioner has been given the pseudonym “John Doe” throughout this litigation\nto safeguard his identity. All citations to the record in this case have been omitted.\n\n 2\n\fwhich he pleaded guilty. The Government, after initially opposing the coram\n\nnobis petition, joined in asking the district court to grant it. The district court\n\nnevertheless denied the petition. Troublingly, the Government has now switched\n\npositions again, arguing that the district court did not abuse its discretion. On\n\nreview, we grant the petition.\n\n BACKGROUND\n\n Pursuant to a plea agreement, Doe pleaded guilty in to a one-count\n\ninformation charging him with conspiracy\n\n\n\n\n . As part of\n\nhis agreement, Doe consented to cooperate with the Government. Doe was\n\nsentenced in to .\n\n In , Doe filed a petition for a writ of error coram nobis. According to the\n\npetition, Doe’s attorney had assured him that his plea should not result in\n\nremoval, when in fact the admitted loss amount rendered it an\n\naggravated felony, resulting in a lifetime citizenship bar, a conclusive\n\npresumption of deportability, and automatic denial of discretionary relief. See\n\n\n\n 3\n\f8 U.S.C. §§ 1101(a)(43)(M)(i) (defining aggravated felony as including “an offense\n\nthat involves fraud or deceit in which the loss to the victim or victims exceeds\n\n$10,000”), 1101(f)(8), 1227(a)(2)(A)(iii), 1228(c), 1229b(a)(3), 1229b(b)(1)(C),\n\n1427(a). The petition also included an earlier written statement in which Doe’s\n\ndefense attorney admitted that he was ignorant as to immigration law and so\n\nwas unaware that Doe’s conviction would lead to mandatory deportation. He\n\nand Doe had relied on the Government’s assurances that it would do everything\n\npossible to keep Doe in the country.\n\n After his sentencing, Doe applied to renew his green card, at which point\n\nhe was placed into removal proceedings. The agents with whom Doe had been\n\ncooperating referred him to new agents, and Doe agreed to cooperate with them\n\nin more sensitive matters. His removal proceedings were then administratively\n\nclosed. Now aware that he was deportable, Doe sought to vacate his conviction;\n\nhe was dissuaded by his handlers, who told him they would be able to obtain\n\ncitizenship for him or have his conviction vacated. With the agents’\n\nencouragement, Doe applied for citizenship; this application, however, was\n\ndenied around or . Agents continued to assure him that they would\n\n\n\n 4\n\fprocure him citizenship and to discourage him from discussing a vacatur motion\n\nwith attorneys. Finally, in , Doe recognized that the agents could not actually\n\nobtain citizenship for him and contacted a new lawyer.\n\n Doe then filed the instant coram nobis petition, after a delay of several\n\nmonths occasioned by the need to retrieve the original criminal complaint\n\nagainst him. The Government initially opposed the petition, asserting that Doe\n\ndid not meet the standard for coram nobis relief because he did not receive\n\nineffective assistance, he was not prejudiced by any ineffective assistance, and his\n\npetition was untimely. However, after meeting with Doe, the Government filed a\n\nletter with the court withdrawing its opposition. The Government requested that\n\nthe court (1) grant the coram nobis petition and (2) transfer the criminal case to the\n\n . At a hearing in , the Government\n\ninformed the court that after examining Second Circuit case law and meeting\n\nwith Doe—whose story the Government credited—the Government believed\n\nthat Doe had received ineffective assistance of counsel. Given the circuit law and\n\nthe factual circumstances, the Government determined that it “could not . . . in\n\ngood conscience oppose the motion.”\n\n\n\n 5\n\f The district court orally denied the petition, stating that it was “not\n\npersuaded.” Doe timely appealed the decision, seeking expedited summary\n\nreversal. This Court determined that the district court’s reasoning could not be\n\ndiscerned from the record; it remanded for the district court to identify the legal\n\nstandard applied and to explain its reasons for denying relief. The district court\n\nthen issued a written opinion denying Doe’s coram nobis petition. The court\n\nstated that no “‘serious constitutional question’ would be raised by withdrawing\n\n[Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly\n\nseems the remedy in this case, if one is even in order.” The court said that “the\n\nExecutive Branch . . . is requesting that the Judicial Branch remedy what the\n\nUnited States Attorney’s Office believes to be a wrong perpetrated by either ICE\n\nor the FBI,” a request which the court did “not believe . . . to be sound, given the\n\nseparation of powers doctrine.” After the district court issued its decision, Doe\n\nreinstated his appeal.\n\n\n\n\n 6\n\f DISCUSSION\n\nI. Standard of Review\n\n “A writ of error coram nobis is an ‘extraordinary remedy’” typically granted\n\nonly when a prisoner is out of custody and so cannot pursue habeas relief. Kovacs\n\nv. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting United States v. Morgan, 346\n\nU.S. 502, 511 (1954)). We review de novo the legal standards that the district court\n\nhas applied but review for abuse of discretion the court’s ultimate decision to\n\ndeny the writ. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).\n\nII. Coram Nobis Relief\n\n The sole issue on appeal is whether the district court improperly denied\n\nDoe’s coram nobis petition. While the Government’s agreement with Doe below\n\nmight normally preclude it from opposing Doe now, see, e.g., Steagald v. United\n\nStates, 451 U.S. 204, 209 (1981); United States v. Gupta, 699 F.3d 682, 690 n.2 (2d\n\nCir. 2012); United States v. Canova, 412 F.3d 331, 347 (2d Cir. 2005), we will\n\nexercise our discretion to consider the matter on the merits, see Bogle-Assegai v.\n\nConnecticut, 470 F.3d 498, 504 (2d Cir. 2006), bearing in mind the concessions the\n\nGovernment has made both below and on appeal.\n\n\n\n 7\n\f To receive coram nobis relief, a petitioner must show “that 1) there are\n\ncircumstances compelling such action to achieve justice, 2) sound reasons exist\n\nfor failure to seek appropriate earlier relief, and 3) the petitioner continues to\n\nsuffer legal consequences from his conviction that may be remedied by granting\n\nof the writ.” Kovacs, 744 F.3d at 49 (quoting Foont v. United States, 93 F.3d 76, 79\n\n(2d Cir. 1996)). 2 The district court neither laid out nor applied these legal\n\nstandards. Instead, it cited cases that asked whether “the failure to allow for\n\ncollateral review would raise serious constitutional questions,” a test used to\n\ndetermine whether untimely habeas petitions alleging constitutional violations\n\n\n\n\n 2 As the Government does not contest the third factor for receiving coram nobis\nrelief, only the first and second factors are at issue here. See Norton v. Sam’s Club, 145\nF.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered\nwaived and normally will not be addressed on appeal.”). However, we note that Doe’s\nconviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M), means that he “shall\nbe conclusively presumed to be deportable,” id. § 1228(c); see id. § 1227(a)(2)(A)(iii), and\nis ineligible for cancellation of removal or adjustment of status, id. § 1229b(a)(3),\n(b)(1)(C). He is also categorically disqualified from proving moral character, id.\n§ 1101(f)(8), which in turn disqualifies him from naturalized citizenship, id. § 1427(a).\nThe fact that his deportation proceedings have been administratively stayed does not\nalleviate these legal consequences, as Doe is still unable to apply for citizenship and\nremains subject to mandatory removal at any moment if the Government removes the\nstay. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (A.G. 2018) (prohibiting the use of\nadministrative closure in most removal cases and requiring all administratively closed\ncases to be re-calendared on the motion of either party unless they were closed pursuant\nto an explicit grant of authority via regulation or judicially approved settlement).\n\n 8\n\fmay be brought under 28 U.S.C. § 2241. Triestman v. United States, 124 F.3d 361,\n\n377 (2d Cir. 1997). Doe argues that the district court applied the wrong legal\n\nstandards, and we agree. Under the correct standards, Doe merits relief.\n\n A. Ineffective Assistance\n\n Doe claims that his attorney misadvised him as to the immigration\n\nconsequences of his plea, and that there is a reasonable probability he would\n\nhave gone to trial, litigated a defense, or negotiated a different plea had he not\n\nbeen misadvised. Ineffective assistance of counsel, including during the plea-\n\nbargaining process, is a circumstance compelling the grant of a timely\n\napplication for coram nobis relief. Kovacs, 744 F.3d at 49. To prove ineffective\n\nassistance, a petitioner must show that “defense counsel’s performance was\n\nobjectively unreasonable” and that “the deficient performance prejudiced the\n\ndefense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “The\n\nquestion of whether a defendant’s lawyer’s representation violates the Sixth\n\nAmendment right to effective assistance of counsel is a mixed question of law\n\nand fact that is reviewed de novo.” LoCascio v. United States, 395 F.3d 51, 54 (2d\n\nCir. 2005) (citation omitted).\n\n\n\n 9\n\f The Government conceded both in the district court and on appeal that\n\nDoe’s counsel’s actions were objectively unreasonable. They were. At the time of\n\nDoe’s plea in , the Supreme Court had not yet held that attorneys must\n\naffirmatively warn their clients of the immigration consequences of their\n\npotential convictions. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). However,\n\nthis court had already held that “an affirmative misrepresentation by counsel as\n\nto the deportation consequences of a guilty plea is . . . objectively unreasonable.”\n\nUnited States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), abrogated on other grounds\n\nby Padilla, 559 U.S. 356.\n\n Doe claims that when he asked his defense counsel about the immigration\n\nconsequences of the proposed plea agreement, counsel indicated that, with Doe’s\n\ncooperation and an ultimate plea of guilty in this nonviolent case, Doe should\n\nnot have a problem with the immigration authorities and should not face\n\ndeportation. An earlier statement by Doe’s defense counsel effectively admitted\n\nas much. The statement noted that counsel neither was a practitioner of nor was\n\nknowledgeable about immigration law; that he and Doe had been assured by the\n\nGovernment that the Government would do everything it could to keep Doe\n\n\n\n 10\n\ffrom being deported; that the attorney and Doe had relied on the Government’s\n\nrepresentations; and that he had not been aware that deportation was mandatory\n\nfor the offense to which Doe was considering pleading guilty. The district court\n\nmade no findings as to the credibility of Doe’s or his attorney’s representations.\n\nThe Government, however, has credited Doe’s description of the events and of\n\nwhat he was told by government agents, and the Government has admitted that\n\ndefense counsel effectively conceded that he provided incorrect information to\n\nDoe as to whether mandatory deportation would result from his plea. Reviewing\n\nthe record de novo, we conclude that there is no genuine dispute as to the fact that\n\ncounsel’s representations to Doe, which inaccurately conveyed that his plea of\n\nguilty to the charge would not make his deportation mandatory, fell below\n\nan objective standard of reasonableness. Couto, 311 F.3d at 187 (finding\n\nineffective assistance when “counsel affirmatively misled [d]efendant into\n\nbelieving there were things that could be done to avoid deportation”).\n\n The question then becomes whether this misadvice prejudiced Doe. The\n\nGovernment asserts that the district court’s decision impliedly found a lack of\n\nprejudice and claims that this holding was not an abuse of discretion. However,\n\n\n\n 11\n\fthe court did not make any clear determination regarding whether Doe had met\n\nthe Strickland standard. Instead, applying an incorrect legal test, the court stated\n\nconclusorily that “[Doe] has not demonstrated that a ‘serious constitutional\n\nquestion’ would be raised by withdrawing his guilty plea at this stage, nor that\n\nany such constitutional question would be remedied by re-opening the\n\nInformation or transferring it to the .” We respectfully think the\n\nquestion is not whether vacating Doe’s conviction would raise a constitutional\n\nquestion, but rather whether allowing his conviction to stand would constitute a\n\nmiscarriage of justice.\n\n Assuming that the district court meant to say that no serious constitutional\n\nquestion would be raised by maintaining Doe’s conviction, we believe the court\n\nneither employed the correct legal standard nor examined whether Doe was\n\nprejudiced under Strickland. We therefore analyze the question ourselves.\n\nPrejudice exists “if it is shown that, but for counsel’s unprofessional errors, there\n\nwas a reasonable probability that the petitioner could have negotiated a plea that\n\ndid not impact immigration status or that he would have litigated an available\n\ndefense.” Kovacs, 744 F.3d at 52. Doe has shown both.\n\n\n\n 12\n\f As a predicate matter, a petitioner alleging ineffective assistance based on\n\nimmigration misadvice must “clearly demonstrate ‘that he placed particular\n\nemphasis on [immigration consequences] in deciding whether or not to plead\n\nguilty.’” Id. (citation omitted). 3 Courts cannot rely solely on “post hoc assertions\n\nfrom a defendant about how he would have pleaded but for his attorney’s\n\ndeficiencies”; we must also “look to contemporaneous evidence to substantiate a\n\ndefendant’s expressed preferences.” Jae Lee v. United States, 137 S. Ct. 1958, 1967\n\n(2017). This evidence shows that Doe was deeply concerned about deportation.\n\n\n\n\n 3 The Government suggests that it was not an abuse of discretion for the district\ncourt to find a lack of prejudice in light of Jae Lee v. United States, 137 S. Ct. 1958 (2017),\nbecause Doe did not show either that deportation was the “determinative issue” for him\nor that he “had a large number of discussions with his counsel” about it. The Jae Lee\nCourt did note that, in that case, deportation was “determinative” for Lee, based on\nLee’s “repeated[]” questioning of his attorney and on the testimony of Lee and Lee’s\nattorney at an evidentiary hearing that Lee would have gone to trial if he had known\nabout the risk of deportation. 137 S. Ct. at 1967-68. But Jae Lee did not say that a\npetitioner must show that immigration consequences were his sole concern, or that he\nhad engaged in a “large” number of immigration-related discussions with counsel.\n(What constitutes a “large” number of discussions the Government does not say,\nthough apparently it is more than the three with which the Government credits Doe.)\nRather, the Court asked whether the petitioner “has adequately demonstrated a\nreasonable probability that he would have rejected the plea had he known that it would\nlead to mandatory deportation.” Jae Lee, 137 S. Ct. at 1967. Thus, Jae Lee did not alter the\nstandard this court set in Kovacs.\n\n 13\n\f While the district court did not hold an evidentiary hearing on the petition,\n\nDoe submitted a declaration stating that during an early conversation with his\n\ncounsel, Doe asked about his immigration situation and his attorney indicated\n\nthat cooperation and an ultimate plea of guilty should not lead to deportation.\n\nCounsel told Doe “that it was not a violent crime, that [Doe] had a green card,\n\nand that essentially [Doe] should ‘be okay.’” When reviewing the plea agreement\n\nthat Doe ultimately signed, Doe asked counsel about the listed penalty of\n\ndeportation—another sign that Doe was particularly concerned about\n\nimmigration consequences—but counsel “soft-peddled the warning in the\n\nagreement as a possible penalty that was put in all agreements for people who\n\nwere not citizens.” The Government credited Doe’s statements below and does\n\nnot challenge them on appeal.\n\n Doe’s defense counsel also said in an earlier statement that he and Doe\n\nwere assured by the Government that they would do everything they could to\n\nkeep Doe in the United States, that the Government was aware of the extreme\n\ndanger Doe would face if he were sent back to his home country, and that\n\ncounsel and Doe relied on the representations the Government gave them at the\n\n\n\n 14\n\ftime of Doe’s plea. These statements buttress Doe’s claim that he would not have\n\npleaded guilty had he known about the deportation consequences of doing so.\n\n Evidence regarding Doe’s background likewise backs up Doe’s later\n\nassertions that he was focused on remaining in the country. His history in the\n\nUnited States, his family circumstances, and his gainful employment all signal\n\nDoe’s strong connection to, and desire to remain in, the United States. See Jae Lee,\n\n137 S. Ct. at 1968 (finding it relevant that “Lee had lived in the United States for\n\nnearly three decades, had established two businesses in Tennessee, and was the\n\nonly family member in the United States who could care for his elderly parents,”\n\nand that “there is no indication that he had any ties to South Korea [as] he had\n\nnever returned there since leaving as a child”). The Government “has given no\n\npersuasive reason to conclude that the likely grave immigration consequences of\n\nhis plea were not of great importance” to Doe. United States v. Gonzales, 884 F.3d\n\n457, 461 (2d Cir. 2018) (per curiam).\n\n While not contemporaneously documented, Doe’s statements regarding\n\nwhat occurred at his plea hearing add to his claim. The Government attempts to\n\nuse the plea hearing against Doe: it points to Doe’s statements during the plea\n\n\n\n 15\n\fhearing to argue that he pleaded guilty after being warned of the immigration\n\nconsequences of his plea. The district court stated that Doe “was instructed that\n\nhis entry of a plea of guilty could result in his deportation given that the value of\n\n exceeded $10,000 and therefore constituted an aggravated felony.”\n\nThe latter part of this statement was clear error. The magistrate judge did ask\n\nDoe, as part of a standard plea colloquy, if he understood that he “may be\n\ndeported as a result of this conviction.” Yet nowhere during the colloquy did the\n\ncourt inform Doe that the crime to which he was pleading guilty constituted an\n\naggravated felony, or what the mandatory consequences of pleading to an\n\naggravated felony would be. And Doe indicated in a declaration that his attorney\n\nmisadvised him further in response to the judge’s question, emphasizing that the\n\njudge said “may be” rather than “would be.” The Government does not\n\nchallenge Doe’s characterization of what occurred during the plea hearing. 4\n\n Given the evidence that Doe was quite concerned about remaining in the\n\ncountry, it is clear that he would have preferred to negotiate a plea that did not\n\n\n\n\n The Government notes that there is no record that Doe’s counsel actually\n 4\n\nstopped the proceedings, as counsel did in Jae Lee. But Jae Lee did not state that actual\nstoppage is required in order to show prejudice. 137 S. Ct. at 1968 & n.4.\n\n 16\n\ftrigger mandatory removal. Likewise, there is “a reasonable probability that the\n\nprosecution would have accepted, and the court would have approved, a deal\n\nthat had no adverse effect on [his] immigration status.” Kovacs, 744 F.3d at 52.\n\nThe Government cited this language in Kovacs in explaining to the district court\n\nwhy it believed Doe’s counsel’s mistaken advice had prejudiced Doe. Therefore,\n\nin joining Doe’s motion, the Government implicitly admitted that a plea might\n\nhave been negotiated without mandatory immigration consequences. There is\n\nalso a reasonable probability that the court would have accepted a plea to a lesser\n\ncharge, since the court ultimately sentenced Doe to probation rather than prison.\n\n The entirety of the Government’s argument to the contrary on appeal is\n\nthat Doe does not cite any alternative charge that could have been brought. But it\n\nwas not necessary to bring a different charge. Doe pleaded to one count of\n\nconspiracy\n\n\n\n\n 17\n\f It was eminently possible to keep the loss amount\n\nbetween and $10,000 by charging Doe for a conspiracy that only\n\nencompassed a few of his documented transactions.\n\n Moreover, while Doe did not point to another charge that could have\n\nformed the basis of a plea, one clearly existed:\n\n\n\n\n There is a\n\nreasonable probability that, had all parties been aware of the possibility of\n\nmandatory deportation, the Government would have been willing to charge Doe\n\nwith based on one or more specific transactions with a total loss amount\n\nunder $10,000—rather than the higher loss and restitution amounts actually\n\ncharged—in exchange for the cooperation that Doe promised in his plea deal.\n\nGiven Doe’s promised cooperation, as well as the Government’s assurances\n\nduring plea negotiations that it would do everything it could to prevent Doe’s\n\nremoval, there is a reasonable probability that the Government would have\n\naccepted charging a lower loss amount.\n\n\n\n\n 18\n\f There is also a reasonable probability that, had Doe known of the\n\nmandatory removal provision, Doe would have litigated an available defense.\n\nDoe asserts that he could have (and would have) tried the case or challenged the\n\nloss figure had he known that a plea would lead to deportation. The Government\n\nresponds that the evidence against Doe was too “overwhelming” to go to trial,\n\nand that Doe would have had no way to successfully challenge the loss amount.\n\nBut this is not entirely certain. There were ways for Doe to challenge both the\n\ncharges themselves and the loss amount. Doe provided some of the evidence\n\nagainst himself during his proffer sessions, which Doe claims he would not have\n\nundertaken had his attorney told him about the possibility of mandatory\n\ndeportation. Doe also might have contested intent, as he believed he had a good\n\nargument that he did not know the purpose of the and\n\nwas just .\n\n To contest the loss amount, Doe could have challenged the extent of his\n\ninvolvement in the scheme and argued that he should be held liable only for the\n\nlosses he himself caused. See United States v. Studley, 47 F.3d 569, 575 (2d Cir.\n\n1995) (holding that “the fact that the defendant is aware of the scope of the\n\n\n\n 19\n\foverall operation is not enough to hold him accountable for the activities of the\n\nwhole operation,” and that the key question is “what role the defendant agreed\n\nto play in the operation”). There was no indication in the complaint that Doe had\n\n“suggested” the crimes that caused the loss. United States v. Germosen, 139 F.3d\n\n120, 130 (2d Cir. 1998). Therefore, Doe could have argued that “[h]e followed\n\ninstructions on potential customers but did not design or\n\ndevelop the scam.” Id. He might then have only been held responsible for the\n\ntransactions he himself made—and Doe had a possible basis to argue that these\n\ntransactions totaled less than $10,000. The criminal complaint stated that Doe and\n\n and that together they caused well over\n\n$100,000 in losses; it did not state how much of the money went to Doe rather\n\nthan —information that could weigh on the nature or extent of\n\nany conspiracy. Doe also claimed that a second person\n\n\n\n\n Thus, there\n\nwas a path available to Doe—albeit a narrow one—to challenge either the\n\n\n\n\n 20\n\fcharges against him or the loss amount had he not cooperated under a mistaken\n\nimpression that he would be safe from removal.\n\n Moreover, the Supreme Court has clarified that “there is more to consider\n\nthan simply the likelihood of success at trial”; the inquiry focuses on the\n\ndefendant’s decision-making process, and “[t]he decision whether to plead guilty\n\nalso involves assessing the respective consequences of a conviction after trial and\n\nby plea.” Jae Lee, 137 S. Ct. at 1966. Here, even if Doe were likely to lose, it would\n\nbe far from irrational for Doe to litigate either the entire charge or the loss\n\namount, given his strong interest in remaining in the country. If Doe had fought\n\nthe charge in the information and lost, he would have had a Guidelines level of\n\n , exposing him to . His plea agreement left him at a\n\nGuidelines level of , for a Guidelines sentence. This difference\n\nin risk is slight enough to pursue even a small possibility of an acquittal or a\n\nsuccessful challenge of the loss figure. See id. at 1966-67. As Doe can show that he\n\nhad a reasonable probability either of negotiating a different plea or of going to\n\ntrial or litigating the loss amount, he has proven that his counsel’s immigration\n\nmisadvice was prejudicial. See Kovacs, 744 F.3d at 53 (“[T]he question is not\n\n\n\n 21\n\fwhether the defense would ultimately have been successful. Rather, the inquiry\n\nis whether the defense was viable and sufficiently promising that [petitioner]\n\nwould have litigated the defense to avoid immigration consequences.”).\n\n B. Sound Reasons for Delay\n\n To receive coram nobis relief, Doe must also show that he provided sound\n\nreasons for his delay in seeking to vacate his conviction. The district court did\n\nnot determine whether Doe had justified his delay. However, we must do so to\n\nresolve Doe’s claim. See Kovacs, 744 F.3d at 54. While “[n]o statute of limitations\n\ngoverns the filing of a coram nobis petition,” id., a petitioner must still show\n\n“sound reasons” for the delay in bringing the petition, Foont, 93 F.3d at 79. To\n\ndecide whether sound reasons exist, the court must focus on “the circumstances\n\nsurrounding the petitioner’s failure to raise the issue earlier rather than the\n\ngovernment’s injury that resulted from the delay.” Id. at 80. “The critical inquiry\n\n. . . is whether the petitioner is able to show justifiable reasons for the delay.” Id.\n\n Doe has provided sufficient reasons to justify his delay. He claims that his\n\nhandlers promised him that he would obtain citizenship or that they would get\n\nhis criminal case dismissed. The Government does not contest Doe’s contentions\n\n\n\n 22\n\fthat his handlers dissuaded him from seeking to vacate his conviction. Instead, it\n\nasserts that the timeline after Doe was denied citizenship in is somewhat\n\nvague, such that a court could plausibly conclude that he had not sufficiently\n\nexplained why he waited five more years before filing his petition. However, as\n\nnoted above, the district court did not actually decide the issue. Abuse-of-\n\ndiscretion review, therefore, is inappropriate here.\n\n In any case, Doe’s declarations provide sufficient justification for his delay.\n\nHe states, and the Government does not dispute, that agents continued to tell\n\nhim after his failed citizenship application that they would be able to provide\n\nhim the relief he sought. Doe’s recollection of a statement that his file was\n\n“a 7 out of 10” and that he should “just hold on and it would be 10 out of 10” and\n\nhe would get the relief he wanted, further explains why Doe continued to rely on\n\nhis handlers rather than a coram nobis petition to address his immigration\n\nproblem.\n\n Nor is the timeline as vague as the Government suggests. Doe clearly\n\nstates that he decided to pursue a petition directly prior to hiring counsel in ,\n\nonce he finally realized that his handlers could not, in fact, gain him citizenship.\n\n\n\n 23\n\fHe then moved with diligence, pausing only to procure the original criminal\n\ncomplaint. These facts clearly differentiate this case from those the Government\n\ncites, in which petitioners provided either patently insufficient justifications or\n\nno justifications at all. See, e.g., United States v. Sash, 374 F. App’x 198, 200 (2d Cir.\n\n2010) (summary order); Jae Hyun Ahn v. United States, 96 F. App’x 43, 44 (2d Cir.\n\n2004) (summary order); Rodriguez v. United States, No. 98 Cr. 00764 MHD, 2012\n\nWL 6082477, at *10 (S.D.N.Y. Dec. 4, 2012). Nor does “the Government . . .\n\nsuggest any tactical reason [Doe] would have delayed pursuit of the writ” absent\n\ncontinued discouragement from his handlers, Kovacs, 744 F.3d at 54—particularly\n\nsince the Government does not contest that Doe repeatedly discussed his desire\n\nto vacate his conviction with the agents. We therefore conclude that Doe’s\n\npetition was timely.\n\nIII. Vacatur of the Plea and Transfer\n\n Having concluded that Doe has met his burden to receive coram nobis\n\nrelief, we must determine the scope of that relief. The plea for relief in Doe’s\n\npetition asks only to vacate his conviction. However, both the petition itself and\n\nthe Government’s letter supporting the petition clearly contemplate vacatur of\n\n\n\n 24\n\fDoe’s guilty plea, as well. Both parties stated at oral argument that if we were to\n\ngrant Doe’s petition, we should also vacate Doe’s plea. We agree. We therefore\n\ndirect the district court to grant Doe’s coram nobis petition and vacate both his\n\nconviction and his plea.\n\n Finally, because the district court denied Doe’s coram nobis petition, it did\n\nnot rule on the Government’s request to transfer Doe’s criminal case to the\n\n . However, both parties consented to this transfer\n\nbelow and agree that such a transfer is the preferred outcome if the district\n\ncourt’s judgment is reversed. Given that “the convenience of the parties, . . . in\n\nthe interest of justice,” clearly favors transfer, Fed. R. Crim. P. 21(b), and that the\n\nparties have given their consent, we hereby direct the district court to transfer\n\nDoe’s underlying criminal case to the for further\n\nproceedings.\n\n CONCLUSION\n\n As we reflect on the Government’s troubling changing positions in this\n\nmatter—after having once rightly concluded that Doe is entitled to relief—we are\n\nreminded of then-Attorney General Robert F. Kennedy’s cautioning words: “It is,\n\n\n\n 25\n\fafter all, not the Department of Prosecution but the Department of Justice . . . .\n\n[T]he interest of the Government . . . is not that it shall win a case, but that justice\n\nshall be done.” 5 For the foregoing reasons, the judgment below is REVERSED,\n\nand the case is REMANDED to the district court with instructions to grant the\n\nwrit, vacate Doe’s plea and conviction, and transfer Doe’s criminal case to the\n\n .\n\n\n\n\n 5\n Robert F. Kennedy, Att’y Gen., Address to the National Conference on Bail and\nCriminal Justice 2 (May 29, 1964) (available in the John F. Kennedy Library).\n\n 26\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-14\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-1841\\nDoe v. United States\\n\\n\\n\\n UNITED STATES COURT OF APPEALS\\n\\n FOR THE SECOND CIRCUIT\\n\\n _______________\\n\\n August Term, 2018\\n\\n (Argued: October 22, 2018 Decided: February 14, 2019)\\n\\n Docket No. 17-1841\\n\\n _______________\\n\\n JOHN DOE,\\n\\n Petitioner-Appellant,\\n\\n —v.—\\n\\n UNITED STATES OF AMERICA,\\n\\n Respondent-Appellee.\\n _______________\\n\\n B e f o r e:\\n\\n KATZMANN, Chief Judge, KEARSE AND CHIN, Circuit Judges.\\n\\n _______________\\n\\n Petitioner-appellant John Doe appeals from a judgment entered in the\\n United States District Court for the\\n Doe filed a petition for a writ of error coram nobis seeking to vacate his earlier\\n\\n\\n 1\\n\\fconviction for conspiracy . The petition argues that Doe’s\\ndefense counsel was ineffective in affirmatively assuring him that there should\\nbe no immigration consequences for pleading guilty when, in fact, the crime to\\nwhich he pleaded was an aggravated felony resulting in mandatory removal.\\nThe Government joined in Doe’s petition after originally opposing it; the district\\ncourt nevertheless denied the petition. On appeal, Doe argues that the district\\ncourt applied incorrect legal standards in evaluating the petition and that the\\ncourt abused its discretion in denying relief. The Government now argues that\\nthe district court’s decision was not an abuse of discretion. We agree with Doe\\nthat the court below erred and that Doe is entitled to relief. Accordingly, the\\njudgment of the district court is REVERSED and the case is REMANDED.\\n _______________\\n\\n , for Petitioner-Appellant.\\n\\n (argued), Assistant United\\n States Attorneys, for , United States\\n Attorney for the\\n for Respondent-Appellee.\\n\\n _______________\\n\\n KATZMANN, Chief Judge:\\n\\n Petitioner-Appellant John Doe 1 filed a writ of coram nobis in 2014 to vacate\\n\\na prior conviction. Both the Government and Doe’s original attorney admitted\\n\\nthat Doe was misled as to the serious immigration consequences of the crime to\\n\\n\\n\\n\\n 1\\n Petitioner has been given the pseudonym “John Doe” throughout this litigation\\nto safeguard his identity. All citations to the record in this case have been omitted.\\n\\n 2\\n\\fwhich he pleaded guilty. The Government, after initially opposing the coram\\n\\nnobis petition, joined in asking the district court to grant it. The district court\\n\\nnevertheless denied the petition. Troublingly, the Government has now switched\\n\\npositions again, arguing that the district court did not abuse its discretion. On\\n\\nreview, we grant the petition.\\n\\n BACKGROUND\\n\\n Pursuant to a plea agreement, Doe pleaded guilty in to a one-count\\n\\ninformation charging him with conspiracy\\n\\n\\n\\n\\n . As part of\\n\\nhis agreement, Doe consented to cooperate with the Government. Doe was\\n\\nsentenced in to .\\n\\n In , Doe filed a petition for a writ of error coram nobis. According to the\\n\\npetition, Doe’s attorney had assured him that his plea should not result in\\n\\nremoval, when in fact the admitted loss amount rendered it an\\n\\naggravated felony, resulting in a lifetime citizenship bar, a conclusive\\n\\npresumption of deportability, and automatic denial of discretionary relief. See\\n\\n\\n\\n 3\\n\\f8 U.S.C. §§ 1101(a)(43)(M)(i) (defining aggravated felony as including “an offense\\n\\nthat involves fraud or deceit in which the loss to the victim or victims exceeds\\n\\n$10,000”), 1101(f)(8), 1227(a)(2)(A)(iii), 1228(c), 1229b(a)(3), 1229b(b)(1)(C),\\n\\n1427(a). The petition also included an earlier written statement in which Doe’s\\n\\ndefense attorney admitted that he was ignorant as to immigration law and so\\n\\nwas unaware that Doe’s conviction would lead to mandatory deportation. He\\n\\nand Doe had relied on the Government’s assurances that it would do everything\\n\\npossible to keep Doe in the country.\\n\\n After his sentencing, Doe applied to renew his green card, at which point\\n\\nhe was placed into removal proceedings. The agents with whom Doe had been\\n\\ncooperating referred him to new agents, and Doe agreed to cooperate with them\\n\\nin more sensitive matters. His removal proceedings were then administratively\\n\\nclosed. Now aware that he was deportable, Doe sought to vacate his conviction;\\n\\nhe was dissuaded by his handlers, who told him they would be able to obtain\\n\\ncitizenship for him or have his conviction vacated. With the agents’\\n\\nencouragement, Doe applied for citizenship; this application, however, was\\n\\ndenied around or . Agents continued to assure him that they would\\n\\n\\n\\n 4\\n\\fprocure him citizenship and to discourage him from discussing a vacatur motion\\n\\nwith attorneys. Finally, in , Doe recognized that the agents could not actually\\n\\nobtain citizenship for him and contacted a new lawyer.\\n\\n Doe then filed the instant coram nobis petition, after a delay of several\\n\\nmonths occasioned by the need to retrieve the original criminal complaint\\n\\nagainst him. The Government initially opposed the petition, asserting that Doe\\n\\ndid not meet the standard for coram nobis relief because he did not receive\\n\\nineffective assistance, he was not prejudiced by any ineffective assistance, and his\\n\\npetition was untimely. However, after meeting with Doe, the Government filed a\\n\\nletter with the court withdrawing its opposition. The Government requested that\\n\\nthe court (1) grant the coram nobis petition and (2) transfer the criminal case to the\\n\\n . At a hearing in , the Government\\n\\ninformed the court that after examining Second Circuit case law and meeting\\n\\nwith Doe—whose story the Government credited—the Government believed\\n\\nthat Doe had received ineffective assistance of counsel. Given the circuit law and\\n\\nthe factual circumstances, the Government determined that it “could not . . . in\\n\\ngood conscience oppose the motion.”\\n\\n\\n\\n 5\\n\\f The district court orally denied the petition, stating that it was “not\\n\\npersuaded.” Doe timely appealed the decision, seeking expedited summary\\n\\nreversal. This Court determined that the district court’s reasoning could not be\\n\\ndiscerned from the record; it remanded for the district court to identify the legal\\n\\nstandard applied and to explain its reasons for denying relief. The district court\\n\\nthen issued a written opinion denying Doe’s coram nobis petition. The court\\n\\nstated that no “‘serious constitutional question’ would be raised by withdrawing\\n\\n[Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly\\n\\nseems the remedy in this case, if one is even in order.” The court said that “the\\n\\nExecutive Branch . . . is requesting that the Judicial Branch remedy what the\\n\\nUnited States Attorney’s Office believes to be a wrong perpetrated by either ICE\\n\\nor the FBI,” a request which the court did “not believe . . . to be sound, given the\\n\\nseparation of powers doctrine.” After the district court issued its decision, Doe\\n\\nreinstated his appeal.\\n\\n\\n\\n\\n 6\\n\\f DISCUSSION\\n\\nI. Standard of Review\\n\\n “A writ of error coram nobis is an ‘extraordinary remedy’” typically granted\\n\\nonly when a prisoner is out of custody and so cannot pursue habeas relief. Kovacs\\n\\nv. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting United States v. Morgan, 346\\n\\nU.S. 502, 511 (1954)). We review de novo the legal standards that the district court\\n\\nhas applied but review for abuse of discretion the court’s ultimate decision to\\n\\ndeny the writ. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).\\n\\nII. Coram Nobis Relief\\n\\n The sole issue on appeal is whether the district court improperly denied\\n\\nDoe’s coram nobis petition. While the Government’s agreement with Doe below\\n\\nmight normally preclude it from opposing Doe now, see, e.g., Steagald v. United\\n\\nStates, 451 U.S. 204, 209 (1981); United States v. Gupta, 699 F.3d 682, 690 n.2 (2d\\n\\nCir. 2012); United States v. Canova, 412 F.3d 331, 347 (2d Cir. 2005), we will\\n\\nexercise our discretion to consider the matter on the merits, see Bogle-Assegai v.\\n\\nConnecticut, 470 F.3d 498, 504 (2d Cir. 2006), bearing in mind the concessions the\\n\\nGovernment has made both below and on appeal.\\n\\n\\n\\n 7\\n\\f To receive coram nobis relief, a petitioner must show “that 1) there are\\n\\ncircumstances compelling such action to achieve justice, 2) sound reasons exist\\n\\nfor failure to seek appropriate earlier relief, and 3) the petitioner continues to\\n\\nsuffer legal consequences from his conviction that may be remedied by granting\\n\\nof the writ.” Kovacs, 744 F.3d at 49 (quoting Foont v. United States, 93 F.3d 76, 79\\n\\n(2d Cir. 1996)). 2 The district court neither laid out nor applied these legal\\n\\nstandards. Instead, it cited cases that asked whether “the failure to allow for\\n\\ncollateral review would raise serious constitutional questions,” a test used to\\n\\ndetermine whether untimely habeas petitions alleging constitutional violations\\n\\n\\n\\n\\n 2 As the Government does not contest the third factor for receiving coram nobis\\nrelief, only the first and second factors are at issue here. See Norton v. Sam’s Club, 145\\nF.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered\\nwaived and normally will not be addressed on appeal.”). However, we note that Doe’s\\nconviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M), means that he “shall\\nbe conclusively presumed to be deportable,” id. § 1228(c); see id. § 1227(a)(2)(A)(iii), and\\nis ineligible for cancellation of removal or adjustment of status, id. § 1229b(a)(3),\\n(b)(1)(C). He is also categorically disqualified from proving moral character, id.\\n§ 1101(f)(8), which in turn disqualifies him from naturalized citizenship, id. § 1427(a).\\nThe fact that his deportation proceedings have been administratively stayed does not\\nalleviate these legal consequences, as Doe is still unable to apply for citizenship and\\nremains subject to mandatory removal at any moment if the Government removes the\\nstay. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (A.G. 2018) (prohibiting the use of\\nadministrative closure in most removal cases and requiring all administratively closed\\ncases to be re-calendared on the motion of either party unless they were closed pursuant\\nto an explicit grant of authority via regulation or judicially approved settlement).\\n\\n 8\\n\\fmay be brought under 28 U.S.C. § 2241. Triestman v. United States, 124 F.3d 361,\\n\\n377 (2d Cir. 1997). Doe argues that the district court applied the wrong legal\\n\\nstandards, and we agree. Under the correct standards, Doe merits relief.\\n\\n A. Ineffective Assistance\\n\\n Doe claims that his attorney misadvised him as to the immigration\\n\\nconsequences of his plea, and that there is a reasonable probability he would\\n\\nhave gone to trial, litigated a defense, or negotiated a different plea had he not\\n\\nbeen misadvised. Ineffective assistance of counsel, including during the plea-\\n\\nbargaining process, is a circumstance compelling the grant of a timely\\n\\napplication for coram nobis relief. Kovacs, 744 F.3d at 49. To prove ineffective\\n\\nassistance, a petitioner must show that “defense counsel’s performance was\\n\\nobjectively unreasonable” and that “the deficient performance prejudiced the\\n\\ndefense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “The\\n\\nquestion of whether a defendant’s lawyer’s representation violates the Sixth\\n\\nAmendment right to effective assistance of counsel is a mixed question of law\\n\\nand fact that is reviewed de novo.” LoCascio v. United States, 395 F.3d 51, 54 (2d\\n\\nCir. 2005) (citation omitted).\\n\\n\\n\\n 9\\n\\f The Government conceded both in the district court and on appeal that\\n\\nDoe’s counsel’s actions were objectively unreasonable. They were. At the time of\\n\\nDoe’s plea in , the Supreme Court had not yet held that attorneys must\\n\\naffirmatively warn their clients of the immigration consequences of their\\n\\npotential convictions. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). However,\\n\\nthis court had already held that “an affirmative misrepresentation by counsel as\\n\\nto the deportation consequences of a guilty plea is . . . objectively unreasonable.”\\n\\nUnited States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), abrogated on other grounds\\n\\nby Padilla, 559 U.S. 356.\\n\\n Doe claims that when he asked his defense counsel about the immigration\\n\\nconsequences of the proposed plea agreement, counsel indicated that, with Doe’s\\n\\ncooperation and an ultimate plea of guilty in this nonviolent case, Doe should\\n\\nnot have a problem with the immigration authorities and should not face\\n\\ndeportation. An earlier statement by Doe’s defense counsel effectively admitted\\n\\nas much. The statement noted that counsel neither was a practitioner of nor was\\n\\nknowledgeable about immigration law; that he and Doe had been assured by the\\n\\nGovernment that the Government would do everything it could to keep Doe\\n\\n\\n\\n 10\\n\\ffrom being deported; that the attorney and Doe had relied on the Government’s\\n\\nrepresentations; and that he had not been aware that deportation was mandatory\\n\\nfor the offense to which Doe was considering pleading guilty. The district court\\n\\nmade no findings as to the credibility of Doe’s or his attorney’s representations.\\n\\nThe Government, however, has credited Doe’s description of the events and of\\n\\nwhat he was told by government agents, and the Government has admitted that\\n\\ndefense counsel effectively conceded that he provided incorrect information to\\n\\nDoe as to whether mandatory deportation would result from his plea. Reviewing\\n\\nthe record de novo, we conclude that there is no genuine dispute as to the fact that\\n\\ncounsel’s representations to Doe, which inaccurately conveyed that his plea of\\n\\nguilty to the charge would not make his deportation mandatory, fell below\\n\\nan objective standard of reasonableness. Couto, 311 F.3d at 187 (finding\\n\\nineffective assistance when “counsel affirmatively misled [d]efendant into\\n\\nbelieving there were things that could be done to avoid deportation”).\\n\\n The question then becomes whether this misadvice prejudiced Doe. The\\n\\nGovernment asserts that the district court’s decision impliedly found a lack of\\n\\nprejudice and claims that this holding was not an abuse of discretion. However,\\n\\n\\n\\n 11\\n\\fthe court did not make any clear determination regarding whether Doe had met\\n\\nthe Strickland standard. Instead, applying an incorrect legal test, the court stated\\n\\nconclusorily that “[Doe] has not demonstrated that a ‘serious constitutional\\n\\nquestion’ would be raised by withdrawing his guilty plea at this stage, nor that\\n\\nany such constitutional question would be remedied by re-opening the\\n\\nInformation or transferring it to the .” We respectfully think the\\n\\nquestion is not whether vacating Doe’s conviction would raise a constitutional\\n\\nquestion, but rather whether allowing his conviction to stand would constitute a\\n\\nmiscarriage of justice.\\n\\n Assuming that the district court meant to say that no serious constitutional\\n\\nquestion would be raised by maintaining Doe’s conviction, we believe the court\\n\\nneither employed the correct legal standard nor examined whether Doe was\\n\\nprejudiced under Strickland. We therefore analyze the question ourselves.\\n\\nPrejudice exists “if it is shown that, but for counsel’s unprofessional errors, there\\n\\nwas a reasonable probability that the petitioner could have negotiated a plea that\\n\\ndid not impact immigration status or that he would have litigated an available\\n\\ndefense.” Kovacs, 744 F.3d at 52. Doe has shown both.\\n\\n\\n\\n 12\\n\\f As a predicate matter, a petitioner alleging ineffective assistance based on\\n\\nimmigration misadvice must “clearly demonstrate ‘that he placed particular\\n\\nemphasis on [immigration consequences] in deciding whether or not to plead\\n\\nguilty.’” Id. (citation omitted). 3 Courts cannot rely solely on “post hoc assertions\\n\\nfrom a defendant about how he would have pleaded but for his attorney’s\\n\\ndeficiencies”; we must also “look to contemporaneous evidence to substantiate a\\n\\ndefendant’s expressed preferences.” Jae Lee v. United States, 137 S. Ct. 1958, 1967\\n\\n(2017). This evidence shows that Doe was deeply concerned about deportation.\\n\\n\\n\\n\\n 3 The Government suggests that it was not an abuse of discretion for the district\\ncourt to find a lack of prejudice in light of Jae Lee v. United States, 137 S. Ct. 1958 (2017),\\nbecause Doe did not show either that deportation was the “determinative issue” for him\\nor that he “had a large number of discussions with his counsel” about it. The Jae Lee\\nCourt did note that, in that case, deportation was “determinative” for Lee, based on\\nLee’s “repeated[]” questioning of his attorney and on the testimony of Lee and Lee’s\\nattorney at an evidentiary hearing that Lee would have gone to trial if he had known\\nabout the risk of deportation. 137 S. Ct. at 1967-68. But Jae Lee did not say that a\\npetitioner must show that immigration consequences were his sole concern, or that he\\nhad engaged in a “large” number of immigration-related discussions with counsel.\\n(What constitutes a “large” number of discussions the Government does not say,\\nthough apparently it is more than the three with which the Government credits Doe.)\\nRather, the Court asked whether the petitioner “has adequately demonstrated a\\nreasonable probability that he would have rejected the plea had he known that it would\\nlead to mandatory deportation.” Jae Lee, 137 S. Ct. at 1967. Thus, Jae Lee did not alter the\\nstandard this court set in Kovacs.\\n\\n 13\\n\\f While the district court did not hold an evidentiary hearing on the petition,\\n\\nDoe submitted a declaration stating that during an early conversation with his\\n\\ncounsel, Doe asked about his immigration situation and his attorney indicated\\n\\nthat cooperation and an ultimate plea of guilty should not lead to deportation.\\n\\nCounsel told Doe “that it was not a violent crime, that [Doe] had a green card,\\n\\nand that essentially [Doe] should ‘be okay.’” When reviewing the plea agreement\\n\\nthat Doe ultimately signed, Doe asked counsel about the listed penalty of\\n\\ndeportation—another sign that Doe was particularly concerned about\\n\\nimmigration consequences—but counsel “soft-peddled the warning in the\\n\\nagreement as a possible penalty that was put in all agreements for people who\\n\\nwere not citizens.” The Government credited Doe’s statements below and does\\n\\nnot challenge them on appeal.\\n\\n Doe’s defense counsel also said in an earlier statement that he and Doe\\n\\nwere assured by the Government that they would do everything they could to\\n\\nkeep Doe in the United States, that the Government was aware of the extreme\\n\\ndanger Doe would face if he were sent back to his home country, and that\\n\\ncounsel and Doe relied on the representations the Government gave them at the\\n\\n\\n\\n 14\\n\\ftime of Doe’s plea. These statements buttress Doe’s claim that he would not have\\n\\npleaded guilty had he known about the deportation consequences of doing so.\\n\\n Evidence regarding Doe’s background likewise backs up Doe’s later\\n\\nassertions that he was focused on remaining in the country. His history in the\\n\\nUnited States, his family circumstances, and his gainful employment all signal\\n\\nDoe’s strong connection to, and desire to remain in, the United States. See Jae Lee,\\n\\n137 S. Ct. at 1968 (finding it relevant that “Lee had lived in the United States for\\n\\nnearly three decades, had established two businesses in Tennessee, and was the\\n\\nonly family member in the United States who could care for his elderly parents,”\\n\\nand that “there is no indication that he had any ties to South Korea [as] he had\\n\\nnever returned there since leaving as a child”). The Government “has given no\\n\\npersuasive reason to conclude that the likely grave immigration consequences of\\n\\nhis plea were not of great importance” to Doe. United States v. Gonzales, 884 F.3d\\n\\n457, 461 (2d Cir. 2018) (per curiam).\\n\\n While not contemporaneously documented, Doe’s statements regarding\\n\\nwhat occurred at his plea hearing add to his claim. The Government attempts to\\n\\nuse the plea hearing against Doe: it points to Doe’s statements during the plea\\n\\n\\n\\n 15\\n\\fhearing to argue that he pleaded guilty after being warned of the immigration\\n\\nconsequences of his plea. The district court stated that Doe “was instructed that\\n\\nhis entry of a plea of guilty could result in his deportation given that the value of\\n\\n exceeded $10,000 and therefore constituted an aggravated felony.”\\n\\nThe latter part of this statement was clear error. The magistrate judge did ask\\n\\nDoe, as part of a standard plea colloquy, if he understood that he “may be\\n\\ndeported as a result of this conviction.” Yet nowhere during the colloquy did the\\n\\ncourt inform Doe that the crime to which he was pleading guilty constituted an\\n\\naggravated felony, or what the mandatory consequences of pleading to an\\n\\naggravated felony would be. And Doe indicated in a declaration that his attorney\\n\\nmisadvised him further in response to the judge’s question, emphasizing that the\\n\\njudge said “may be” rather than “would be.” The Government does not\\n\\nchallenge Doe’s characterization of what occurred during the plea hearing. 4\\n\\n Given the evidence that Doe was quite concerned about remaining in the\\n\\ncountry, it is clear that he would have preferred to negotiate a plea that did not\\n\\n\\n\\n\\n The Government notes that there is no record that Doe’s counsel actually\\n 4\\n\\nstopped the proceedings, as counsel did in Jae Lee. But Jae Lee did not state that actual\\nstoppage is required in order to show prejudice. 137 S. Ct. at 1968 & n.4.\\n\\n 16\\n\\ftrigger mandatory removal. Likewise, there is “a reasonable probability that the\\n\\nprosecution would have accepted, and the court would have approved, a deal\\n\\nthat had no adverse effect on [his] immigration status.” Kovacs, 744 F.3d at 52.\\n\\nThe Government cited this language in Kovacs in explaining to the district court\\n\\nwhy it believed Doe’s counsel’s mistaken advice had prejudiced Doe. Therefore,\\n\\nin joining Doe’s motion, the Government implicitly admitted that a plea might\\n\\nhave been negotiated without mandatory immigration consequences. There is\\n\\nalso a reasonable probability that the court would have accepted a plea to a lesser\\n\\ncharge, since the court ultimately sentenced Doe to probation rather than prison.\\n\\n The entirety of the Government’s argument to the contrary on appeal is\\n\\nthat Doe does not cite any alternative charge that could have been brought. But it\\n\\nwas not necessary to bring a different charge. Doe pleaded to one count of\\n\\nconspiracy\\n\\n\\n\\n\\n 17\\n\\f It was eminently possible to keep the loss amount\\n\\nbetween and $10,000 by charging Doe for a conspiracy that only\\n\\nencompassed a few of his documented transactions.\\n\\n Moreover, while Doe did not point to another charge that could have\\n\\nformed the basis of a plea, one clearly existed:\\n\\n\\n\\n\\n There is a\\n\\nreasonable probability that, had all parties been aware of the possibility of\\n\\nmandatory deportation, the Government would have been willing to charge Doe\\n\\nwith based on one or more specific transactions with a total loss amount\\n\\nunder $10,000—rather than the higher loss and restitution amounts actually\\n\\ncharged—in exchange for the cooperation that Doe promised in his plea deal.\\n\\nGiven Doe’s promised cooperation, as well as the Government’s assurances\\n\\nduring plea negotiations that it would do everything it could to prevent Doe’s\\n\\nremoval, there is a reasonable probability that the Government would have\\n\\naccepted charging a lower loss amount.\\n\\n\\n\\n\\n 18\\n\\f There is also a reasonable probability that, had Doe known of the\\n\\nmandatory removal provision, Doe would have litigated an available defense.\\n\\nDoe asserts that he could have (and would have) tried the case or challenged the\\n\\nloss figure had he known that a plea would lead to deportation. The Government\\n\\nresponds that the evidence against Doe was too “overwhelming” to go to trial,\\n\\nand that Doe would have had no way to successfully challenge the loss amount.\\n\\nBut this is not entirely certain. There were ways for Doe to challenge both the\\n\\ncharges themselves and the loss amount. Doe provided some of the evidence\\n\\nagainst himself during his proffer sessions, which Doe claims he would not have\\n\\nundertaken had his attorney told him about the possibility of mandatory\\n\\ndeportation. Doe also might have contested intent, as he believed he had a good\\n\\nargument that he did not know the purpose of the and\\n\\nwas just .\\n\\n To contest the loss amount, Doe could have challenged the extent of his\\n\\ninvolvement in the scheme and argued that he should be held liable only for the\\n\\nlosses he himself caused. See United States v. Studley, 47 F.3d 569, 575 (2d Cir.\\n\\n1995) (holding that “the fact that the defendant is aware of the scope of the\\n\\n\\n\\n 19\\n\\foverall operation is not enough to hold him accountable for the activities of the\\n\\nwhole operation,” and that the key question is “what role the defendant agreed\\n\\nto play in the operation”). There was no indication in the complaint that Doe had\\n\\n“suggested” the crimes that caused the loss. United States v. Germosen, 139 F.3d\\n\\n120, 130 (2d Cir. 1998). Therefore, Doe could have argued that “[h]e followed\\n\\ninstructions on potential customers but did not design or\\n\\ndevelop the scam.” Id. He might then have only been held responsible for the\\n\\ntransactions he himself made—and Doe had a possible basis to argue that these\\n\\ntransactions totaled less than $10,000. The criminal complaint stated that Doe and\\n\\n and that together they caused well over\\n\\n$100,000 in losses; it did not state how much of the money went to Doe rather\\n\\nthan —information that could weigh on the nature or extent of\\n\\nany conspiracy. Doe also claimed that a second person\\n\\n\\n\\n\\n Thus, there\\n\\nwas a path available to Doe—albeit a narrow one—to challenge either the\\n\\n\\n\\n\\n 20\\n\\fcharges against him or the loss amount had he not cooperated under a mistaken\\n\\nimpression that he would be safe from removal.\\n\\n Moreover, the Supreme Court has clarified that “there is more to consider\\n\\nthan simply the likelihood of success at trial”; the inquiry focuses on the\\n\\ndefendant’s decision-making process, and “[t]he decision whether to plead guilty\\n\\nalso involves assessing the respective consequences of a conviction after trial and\\n\\nby plea.” Jae Lee, 137 S. Ct. at 1966. Here, even if Doe were likely to lose, it would\\n\\nbe far from irrational for Doe to litigate either the entire charge or the loss\\n\\namount, given his strong interest in remaining in the country. If Doe had fought\\n\\nthe charge in the information and lost, he would have had a Guidelines level of\\n\\n , exposing him to . His plea agreement left him at a\\n\\nGuidelines level of , for a Guidelines sentence. This difference\\n\\nin risk is slight enough to pursue even a small possibility of an acquittal or a\\n\\nsuccessful challenge of the loss figure. See id. at 1966-67. As Doe can show that he\\n\\nhad a reasonable probability either of negotiating a different plea or of going to\\n\\ntrial or litigating the loss amount, he has proven that his counsel’s immigration\\n\\nmisadvice was prejudicial. See Kovacs, 744 F.3d at 53 (“[T]he question is not\\n\\n\\n\\n 21\\n\\fwhether the defense would ultimately have been successful. Rather, the inquiry\\n\\nis whether the defense was viable and sufficiently promising that [petitioner]\\n\\nwould have litigated the defense to avoid immigration consequences.”).\\n\\n B. Sound Reasons for Delay\\n\\n To receive coram nobis relief, Doe must also show that he provided sound\\n\\nreasons for his delay in seeking to vacate his conviction. The district court did\\n\\nnot determine whether Doe had justified his delay. However, we must do so to\\n\\nresolve Doe’s claim. See Kovacs, 744 F.3d at 54. While “[n]o statute of limitations\\n\\ngoverns the filing of a coram nobis petition,” id., a petitioner must still show\\n\\n“sound reasons” for the delay in bringing the petition, Foont, 93 F.3d at 79. To\\n\\ndecide whether sound reasons exist, the court must focus on “the circumstances\\n\\nsurrounding the petitioner’s failure to raise the issue earlier rather than the\\n\\ngovernment’s injury that resulted from the delay.” Id. at 80. “The critical inquiry\\n\\n. . . is whether the petitioner is able to show justifiable reasons for the delay.” Id.\\n\\n Doe has provided sufficient reasons to justify his delay. He claims that his\\n\\nhandlers promised him that he would obtain citizenship or that they would get\\n\\nhis criminal case dismissed. The Government does not contest Doe’s contentions\\n\\n\\n\\n 22\\n\\fthat his handlers dissuaded him from seeking to vacate his conviction. Instead, it\\n\\nasserts that the timeline after Doe was denied citizenship in is somewhat\\n\\nvague, such that a court could plausibly conclude that he had not sufficiently\\n\\nexplained why he waited five more years before filing his petition. However, as\\n\\nnoted above, the district court did not actually decide the issue. Abuse-of-\\n\\ndiscretion review, therefore, is inappropriate here.\\n\\n In any case, Doe’s declarations provide sufficient justification for his delay.\\n\\nHe states, and the Government does not dispute, that agents continued to tell\\n\\nhim after his failed citizenship application that they would be able to provide\\n\\nhim the relief he sought. Doe’s recollection of a statement that his file was\\n\\n“a 7 out of 10” and that he should “just hold on and it would be 10 out of 10” and\\n\\nhe would get the relief he wanted, further explains why Doe continued to rely on\\n\\nhis handlers rather than a coram nobis petition to address his immigration\\n\\nproblem.\\n\\n Nor is the timeline as vague as the Government suggests. Doe clearly\\n\\nstates that he decided to pursue a petition directly prior to hiring counsel in ,\\n\\nonce he finally realized that his handlers could not, in fact, gain him citizenship.\\n\\n\\n\\n 23\\n\\fHe then moved with diligence, pausing only to procure the original criminal\\n\\ncomplaint. These facts clearly differentiate this case from those the Government\\n\\ncites, in which petitioners provided either patently insufficient justifications or\\n\\nno justifications at all. See, e.g., United States v. Sash, 374 F. App’x 198, 200 (2d Cir.\\n\\n2010) (summary order); Jae Hyun Ahn v. United States, 96 F. App’x 43, 44 (2d Cir.\\n\\n2004) (summary order); Rodriguez v. United States, No. 98 Cr. 00764 MHD, 2012\\n\\nWL 6082477, at *10 (S.D.N.Y. Dec. 4, 2012). Nor does “the Government . . .\\n\\nsuggest any tactical reason [Doe] would have delayed pursuit of the writ” absent\\n\\ncontinued discouragement from his handlers, Kovacs, 744 F.3d at 54—particularly\\n\\nsince the Government does not contest that Doe repeatedly discussed his desire\\n\\nto vacate his conviction with the agents. We therefore conclude that Doe’s\\n\\npetition was timely.\\n\\nIII. Vacatur of the Plea and Transfer\\n\\n Having concluded that Doe has met his burden to receive coram nobis\\n\\nrelief, we must determine the scope of that relief. The plea for relief in Doe’s\\n\\npetition asks only to vacate his conviction. However, both the petition itself and\\n\\nthe Government’s letter supporting the petition clearly contemplate vacatur of\\n\\n\\n\\n 24\\n\\fDoe’s guilty plea, as well. Both parties stated at oral argument that if we were to\\n\\ngrant Doe’s petition, we should also vacate Doe’s plea. We agree. We therefore\\n\\ndirect the district court to grant Doe’s coram nobis petition and vacate both his\\n\\nconviction and his plea.\\n\\n Finally, because the district court denied Doe’s coram nobis petition, it did\\n\\nnot rule on the Government’s request to transfer Doe’s criminal case to the\\n\\n . However, both parties consented to this transfer\\n\\nbelow and agree that such a transfer is the preferred outcome if the district\\n\\ncourt’s judgment is reversed. Given that “the convenience of the parties, . . . in\\n\\nthe interest of justice,” clearly favors transfer, Fed. R. Crim. P. 21(b), and that the\\n\\nparties have given their consent, we hereby direct the district court to transfer\\n\\nDoe’s underlying criminal case to the for further\\n\\nproceedings.\\n\\n CONCLUSION\\n\\n As we reflect on the Government’s troubling changing positions in this\\n\\nmatter—after having once rightly concluded that Doe is entitled to relief—we are\\n\\nreminded of then-Attorney General Robert F. Kennedy’s cautioning words: “It is,\\n\\n\\n\\n 25\\n\\fafter all, not the Department of Prosecution but the Department of Justice . . . .\\n\\n[T]he interest of the Government . . . is not that it shall win a case, but that justice\\n\\nshall be done.” 5 For the foregoing reasons, the judgment below is REVERSED,\\n\\nand the case is REMANDED to the district court with instructions to grant the\\n\\nwrit, vacate Doe’s plea and conviction, and transfer Doe’s criminal case to the\\n\\n .\\n\\n\\n\\n\\n 5\\n Robert F. Kennedy, Att’y Gen., Address to the National Conference on Bail and\\nCriminal Justice 2 (May 29, 1964) (available in the John F. Kennedy Library).\\n\\n 26\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":495,"cells":{"id":{"kind":"number","value":8443879,"string":"8,443,879"},"name":{"kind":"string","value":"Muhammad TANVIR, Jameel Algibhah, Naveed Shinwari v. FNU TANZIN, Special Agent, FBI Sanya Garcia, Special Agent, FBI John LNU, Special Agent, FBI Francisco Artusa, Special Agent, FBI John C. Harley III, Special Agent, FBI Steven LNU, Special Agent, FBI Michael LNU, Special Agent, FBI Gregg Grossoehmig, Special Agent, FBI Weysan Dun, Special Agent in Charge, FBI James C. Langenberg, Assistant Special Agent in Charge, FBI John Doe 1, Special Agent, FBI John Doe 2, Special Agent, FBI John Doe 3, Special Agent, FBI John Doe 4, Special Agent, FBI John Doe 5, Special Agent, FBI John Doe 6, Special Agent, FBI"},"name_abbreviation":{"kind":"string","value":"Tanvir v. Tanzin"},"decision_date":{"kind":"string","value":"2019-02-14"},"docket_number":{"kind":"string","value":"No. 16-1176"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415308/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443879/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Muhammad TANVIR, Jameel Algibhah, Naveed Shinwari v. FNU TANZIN, Special Agent, FBI Sanya Garcia, Special Agent, FBI John LNU, Special Agent, FBI Francisco Artusa, Special Agent, FBI John C. Harley III, Special Agent, FBI Steven LNU, Special Agent, FBI Michael LNU, Special Agent, FBI Gregg Grossoehmig, Special Agent, FBI Weysan Dun, Special Agent in Charge, FBI James C. Langenberg, Assistant Special Agent in Charge, FBI John Doe 1, Special Agent, FBI John Doe 2, Special Agent, FBI John Doe 3, Special Agent, FBI John Doe 4, Special Agent, FBI John Doe 5, Special Agent, FBI John Doe 6, Special Agent, FBI\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Muhammad TANVIR, Jameel Algibhah, Naveed Shinwari v. FNU TANZIN, Special Agent, FBI Sanya Garcia, Special Agent, FBI John LNU, Special Agent, FBI Francisco Artusa, Special Agent, FBI John C. Harley III, Special Agent, FBI Steven LNU, Special Agent, FBI Michael LNU, Special Agent, FBI Gregg Grossoehmig, Special Agent, FBI Weysan Dun, Special Agent in Charge, FBI James C. Langenberg, Assistant Special Agent in Charge, FBI John Doe 1, Special Agent, FBI John Doe 2, Special Agent, FBI John Doe 3, Special Agent, FBI John Doe 4, Special Agent, FBI John Doe 5, Special Agent, FBI John Doe 6, Special Agent, FBI\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-14\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":496,"cells":{"id":{"kind":"number","value":4591185,"string":"4,591,185"},"name":{"kind":"string","value":"UNITED STATES of America, Appellee, v. Scott VALENTE, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Valente"},"decision_date":{"kind":"string","value":"2019-02-15"},"docket_number":{"kind":"string","value":"17-2311-cr; August Term, 2018"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Raggi, Lynch, Droney\", \"parties\": \"\", \"opinions\": [{\"author\": \"DRONEY, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17-2311-cr\\nUnited States v. Valente\\n\\n\\n\\n 17‐2311‐cr\\n United States v. Valente \\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4\\n 5\\n 6 August Term, 2018 \\n 7 No. 17‐2311‐cr \\n 8\\n 9 UNITED STATES OF AMERICA, \\n 10 Appellee, \\n 11\\n 12 v. \\n 13\\n 14 SCOTT VALENTE, \\n 15 Defendant‐Appellant. \\n 16\\n 17\\n 18\\n 19 Appeal from the United States District Court \\n 20 for the Northern District of New York \\n 21 No. 1:15‐cr‐00124‐GLS‐1 \\n 22\\n 23\\n 24 ARGUED: NOVEMBER 1, 2018 \\n 25 DECIDED: FEBRUARY 15, 2019 \\n 26\\n 27\\n 28 Before: RAGGI, LYNCH and DRONEY, Circuit Judges. \\n 29\\n 30\\n 31 Appeal from an amended judgment of conviction of the United States \\n\\n 1\\n\\n 1 District Court for the Northern District of New York entered on July 21, 2017 \\n 2 (Sharpe, J.). The defendant contends that his sentence was procedurally and \\n 3 substantively unreasonable and that the district court lacked authority to impose \\n 4 the amended restitution order that it imposed on resentencing. We VACATE in \\n 5 part the district court’s sentence of incarceration as procedurally unreasonable \\n 6 because of an incorrect criminal history finding and REMAND on that issue, but \\n 7 we AFFIRM the district court’s imposition of the amended restitution order. \\n 8 \\n 9 Judge Lynch, Circuit Judge, concurs in a separate opinion. \\n10 \\n11 \\n12 STEVEN D. CLYMER (Richard D. Belliss, Assistant \\n13 United States Attorneys, on the brief), for Grant C. \\n14 Jaquith, United States Attorney for the Northern \\n15 District of New York, Syracuse, NY, for Appellee. \\n16 \\n17 MOLLY CORBETT (James P. Egan, on the brief), for \\n18 Lisa A. Peebles, Federal Public Defender for the \\n19 Northern District of New York, Albany, NY, for \\n20 Appellant. \\n21 \\n22 DRONEY, Circuit Judge: \\n\\n23 Scott Valente (“Valente”) appeals from the district court’s amended \\n\\n24 judgment of conviction entered on July 21, 2017. He contends that his sentence was \\n\\n25 procedurally and substantively unreasonable and that the district court lacked \\n\\n26 authority to impose the amended restitution order on resentencing. We vacate a \\n\\n27 portion of the district court’s sentence of incarceration as procedurally \\n\\n\\n\\n 2\\n\\n 1 unreasonable because of an incorrect criminal history finding, but we affirm the \\n\\n 2 amended restitution order. \\n\\n 3 VALENTE’S GUILTY PLEA AND SENTENCE \\n\\n 4 On May 11, 2015, Valente pleaded guilty to a three‐count information \\n\\n 5 charging Securities Fraud in violation of 15 U.S.C. § 78j (Count 1), Mail Fraud in \\n\\n 6 violation of 18 U.S.C. § 1341 (Count 2), and Obstructing and Impeding the Internal \\n\\n 7 Revenue Laws in violation of 26 U.S.C. § 7212(a) (Count 3). On November 20, 2015, \\n\\n 8 the United States District Court for the Northern District of New York (Sharpe, J.) \\n\\n 9 sentenced Valente to 240 months on each of the first two counts, and 36 months on \\n\\n10 Count 3, all to run concurrently, and to three years of supervised release. The \\n\\n11 district court also ordered Valente to pay restitution in the amount of \\n\\n12 $8,200,579.69. Judgment was entered the same day. Valente appealed, and this \\n\\n13 Court remanded to the district court to reconsider the assessment of certain \\n\\n14 criminal history points to Valente’s criminal history score. United States v. Valente, \\n\\n15 688 F. Appʹx 76, 79–80 (2d Cir. 2017) (summary order). On July 20, 2017, the district \\n\\n16 court reconsidered its application of those points, applied them again, and \\n\\n17 resentenced Valente to the same terms of imprisonment and of supervised release \\n\\n\\n 3\\n\\n 1 as it had previously imposed. The district court also, over defense counsel’s \\n\\n 2 objection, increased the prior restitution amount to $8,616,113.39. The amended \\n\\n 3 judgment was entered on July 21, 2017, and a second amended judgment was \\n\\n 4 entered on August 8, 2017.1 \\n\\n 5 THE UNDERLYING FRAUDS \\n\\n 6 This case arises out of frauds that Valente, a former registered investment \\n\\n 7 broker, perpetrated on the clients of The ELIV Group, LLC (“ELIV”), an \\n\\n 8 unregistered investment and consulting group that Valente owned and operated \\n\\n 9 in Albany, New York. Valente established ELIV in 2010 after he was barred in 2009 \\n\\n10 from associating with Financial Industry Regulatory Authority (“FINRA”) \\n\\n11 members, based on findings that he had made unauthorized trades for customers \\n\\n12 and provided false written account information to customers. To establish ELIV \\n\\n13 and open brokerage accounts on its behalf, Valente arranged for his wife to be the \\n\\n14 nominal owner of ELIV, even though she had never been registered as a broker or \\n\\n15 held any type of brokerage license. Valente was ELIV’s de facto owner, as well as \\n\\n\\n\\n\\n 1 The second amended judgment was entered because of a clerical error, and it is not challenged \\n here except for the same reasons as the appeal of the amended judgment. \\n\\n 4\\n\\n 1 its manager and sole employee. \\n\\n 2 Valente recruited investors for ELIV through hotel conferences, seminars, \\n\\n 3 and references from existing clients, and he used investors’ funds to purchase \\n\\n 4 various securities. Valente represented that, in exchange for managing these \\n\\n 5 investments, he would be charging an annual 1% fee. When soliciting investors, \\n\\n 6 Valente fraudulently stated that ELIV was an accredited investment and \\n\\n 7 consulting firm. Valente also falsely stated on ELIV’s website that ELIV had \\n\\n 8 achieved a five year average annual return of 34.5%, even though it had not been \\n\\n 9 in business for five years and consistently lost money through speculative \\n\\n10 investments. After Valente obtained investments in ELIV, he continued to deceive \\n\\n11 investors by, inter alia, creating and mailing monthly performance statements that \\n\\n12 falsely reported gains in various accounts. \\n\\n13 Valente further deceived potential investors by falsely representing that \\n\\n14 ELIV was an approved custodian for tax‐deferred individual retirement accounts \\n\\n15 (“IRAs”) and that ELIV could open new IRAs and create rollover IRA accounts. In \\n\\n16 reliance on these misrepresentations, approximately forty‐eight of ELIV’s clients \\n\\n17 rolled over IRA or other retirement accounts to the purported ELIV IRAs. As a \\n\\n\\n 5\\n\\n 1 result, these clients lost their tax‐deferred investments and exposed themselves to \\n\\n 2 early withdrawal penalties. In addition, Valente issued to ELIV investors false \\n\\n 3 financial account statements to make it appear as if ELIV was holding the \\n\\n 4 investors’ retirement accounts as legitimate IRA accounts. Some of these altered \\n\\n 5 statements were then sent to the Internal Revenue Service by accountants who \\n\\n 6 believed that they were valid, creating potentially adverse tax implications for \\n\\n 7 investors. \\n\\n 8 Valente also submitted fraudulent information to the Securities and \\n\\n 9 Exchange Commission (“SEC”) after it commenced an investigation of ELIV. \\n\\n10 The SEC moved for a preliminary injunction against Valente and ELIV, \\n\\n11 which the United States District Court for the Southern District of New York \\n\\n12 granted in June 2014, ordering Valente and ELIV to cease operations and freezing \\n\\n13 their assets. The SEC’s analysis of ELIV’s financial records revealed that, between \\n\\n14 November 2010 and June 2014, Valente, through ELIV, had obtained \\n\\n15 approximately $10.5 million from more than 100 investors. The SEC investigation \\n\\n16 revealed that, as of the date of the asset freeze, ELIV had suffered significant losses, \\n\\n17 as ELIV’s investments were worth approximately $4.7 million less than what \\n\\n\\n 6\\n\\n 1 investors had provided in principal. It also revealed that these losses were not \\n\\n 2 attributable solely to poor investment strategy, as Valente had appropriated \\n\\n 3 approximately $2.2 million of the funds invested for personal expenses, which was \\n\\n 4 well in excess of the 1% management fee that he had promised investors. \\n\\n 5 On May 11, 2015, Valente waived indictment and pleaded guilty in the \\n\\n 6 Northern District of New York. He was sentenced on November 20, 2015, and \\n\\n 7 resentenced on July 20, 2017, as mentioned above. This appeal revisits certain \\n\\n 8 criminal history issues discussed in the initial appeal and addresses the amended \\n\\n 9 restitution order. \\n\\n10 APPLICATION OF THE SENTENCING GUIDELINES \\n\\n11 At resentencing, the district court found that Valente’s adjusted offense level \\n\\n12 under the Sentencing Guidelines was 34, that he fell within Criminal History \\n\\n13 Category IV, based on eight criminal history points, and that the Guidelines \\n\\n14 imprisonment range was 210–262 months. \\n\\n15 Valente’s criminal history includes multiple state convictions related to \\n\\n16 driving while intoxicated, including two Driving While Ability Impaired \\n\\n17 (“DWAI”) infractions, a recidivist DWAI misdemeanor, a driving while \\n\\n\\n 7\\n\\n 1 intoxicated misdemeanor, and a misdemeanor for operating a motor vehicle \\n\\n 2 without an ignition interlock device.2 \\n\\n 3 On appeal, Valente first challenges the procedural reasonableness of the \\n\\n 4 district court’s assignment of two particular criminal history points: one for his \\n\\n 5 prior state misdemeanor conviction of failing to use a vehicle with an interlock \\n\\n 6 device, and a second for being a recidivist DWAI offender. Valente had been given \\n\\n 7 a sixty‐day sentence of imprisonment in state court for the latter conviction. We \\n\\n 8 consider the district court’s assignment of each point in turn. \\n\\n 9 Section 4A1.2(c) of the Sentencing Guidelines provides guidance for \\n\\n10 determining whether “prior sentences” are counted in an offender’s criminal \\n\\n11 history score. All felonies are counted. U.S.S.G. § 4A1.2(c). Certain prior \\n\\n12 misdemeanor convictions are not counted if they are listed under § 4A1.2(c)(1) or \\n\\n13 are similar to the listed offenses. But, an unlisted misdemeanor offense is counted \\n\\n14 if it is categorically more serious than a listed offense. United States v. Morales, 239 \\n\\n15 F.3d 113, 118 (2d Cir. 2000). In this context, “categorically more serious” does not \\n\\n\\n\\n\\n Due to his prior DWAI convictions, Valente was required to install an ignition “interlock device” \\n 2 \\n\\n on his motor vehicle to prevent his operation of the vehicle while intoxicated. \\n\\n 8\\n\\n 1 mean that the unlisted offense is “within a category that is more serious than the \\n\\n 2 [l]isted [o]ffenses” based solely on its underlying elements. Id. at 118 n.5. Rather, \\n\\n 3 we “use[] the adverb [‘categorically’] in its ordinary sense to mean ‘without \\n\\n 4 qualification or reservation.’” Id. (quoting Webster’s Third New International \\n\\n 5 Dictionary (1993) (“categorically”)). In determining whether an offense is \\n\\n 6 categorically more serious than a listed offense, \\n\\n 7 the court should use a common sense approach that includes \\n 8 consideration of relevant factors such as (i) a comparison of \\n 9 punishments imposed for the listed and unlisted offenses, (ii) the \\n10 perceived seriousness of the offense as indicated by the level of \\n11 punishment; (iii) the elements of the offense, (iv) the level of \\n12 culpability involved; and (v) the degree to which the commission of \\n13 the offense indicates a likelihood of recurring criminal conduct. \\n\\n14 U.S.S.G. § 4A1.2 cmt. n.12(A).3 The district court may also consider “any other \\n\\n15 factor the court reasonably finds relevant in comparing prior offenses and [l]isted \\n\\n16 [o]ffenses.” United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d Cir. 1999). The \\n\\n17 misdemeanor interlock device offense is not listed in U.S.S.G. § 4A1.2(c)(1). \\n\\n\\n\\n\\n The United States Sentencing Commission adopted this multifactor “common sense approach” \\n 3 \\n\\n when it amended Application Note 12 to U.S.S.G. § 4A1.2 in 2007. U.S. Sentencing Guidelines \\n Manual supp. to app. C at 237 (2007). But our case law required this approach even before that \\n amendment. See Morales, 239 F.3d at 118; United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d \\n Cir. 1999). \\n\\n 9\\n\\n 1 We review a district court’s interpretation of the Sentencing Guidelines de \\n\\n 2 novo, but we examine its factual findings only for clear error. United States v. Potes‐\\n\\n 3 Castillo, 638 F.3d 106, 108–09 (2d Cir. 2011). When reviewing challenged U.S.S.G. § \\n\\n 4 4A1.2(c) rulings, this Court examines de novo the district court’s determinations \\n\\n 5 based on an offender’s prior offense that “punishes only one basic form of \\n\\n 6 conduct,” Morales, 239 F.3d at 117–18, but, where “the inquiry will necessarily \\n\\n 7 focus on the particular conduct of the defendant, we give due deference to a court’s \\n\\n 8 application of the Guidelines to the facts.” United States v. DeJesus‐Concepcion, 607 \\n\\n 9 F.3d 303, 305 (2d Cir. 2010). By extension, we also give due deference to a court’s \\n\\n10 application of the Guidelines to the facts where, as here, the court considers the \\n\\n11 particular conduct of the defendant as to the factors listed in Application Note \\n\\n12 12(A) to U.S.S.G. § 4A1.2. \\n\\n13 Regarding the prior interlock device conviction, the district court \\n\\n14 determined that the conviction, coupled with the criminal history that led to that \\n\\n15 offense, indicated a likelihood of recurring criminal conduct and increased the \\n\\n16 culpability of the defendant. Valente argues, however, that the district court erred \\n\\n17 by not considering the other factors listed in Application Note 12(A) to U.S.S.G. § \\n\\n\\n 10\\n\\n 1 4A1.2, which, he contends, would have led the district court to determine that the \\n\\n 2 offense was not more serious than those listed. We are not persuaded. The \\n\\n 3 Application Note (and the cases applying it) identifies the factors as ones that a \\n\\n 4 district court may consider. See U.S.S.G. § 4A1.2 cmt. n.12(A); see also DeJesus‐\\n\\n 5 Concepcion, 607 F.3d at 305. Accordingly, the district court is not required to \\n\\n 6 explicitly indicate that it considered the other listed factors or assign any one of \\n\\n 7 them particular weight. In any event, the record indicates that the district court \\n\\n 8 considered other factors, see Joint App’x at 286–87; it simply focused on two factors \\n\\n 9 that, in its view, made the prior conviction more serious than the listed offenses. \\n\\n10 Nor did the court err in concluding that, based on the factors that it considered, \\n\\n11 the interlock device conviction merited the assignment of a criminal history point \\n\\n12 under § 4A1.1(c). \\n\\n13 We turn next to Valente’s argument regarding his prior conviction as a \\n\\n14 recidivist DWAI offender. U.S.S.G. § 4A1.1(b) assigns two points to prior \\n\\n15 convictions which result in a “sentence of imprisonment of at least sixty days.” \\n\\n16 The Application Notes to U.S.S.G. § 4A1.2 provide that “[t]o qualify as a sentence \\n\\n17 of imprisonment, the defendant must have actually served a period of \\n\\n\\n 11\\n\\n 1 imprisonment on such sentence.” Id. at § 4A1.2 cmt. n.2. If the defendant did not \\n\\n 2 do so, the Sentencing Guidelines provide for only a one‐point enhancement under \\n\\n 3 U.S.S.G. § 4A1.1(c). Valente argues that the district court erred in adding a second \\n\\n 4 criminal history point for this offense because, although the state sentence that was \\n\\n 5 imposed was for sixty days imprisonment, he had not yet served it because of \\n\\n 6 medical issues. \\n\\n 7 Valente argues that the sentence was essentially suspended. The district \\n\\n 8 court determined that the sentence was not suspended or stayed and that Valente \\n\\n 9 had not been relieved of his obligation to eventually serve the period of \\n\\n10 imprisonment. The district court thus concluded that Valente’s unserved sentence \\n\\n11 satisfied § 4A1.1(b). We disagree because the unambiguous language of the \\n\\n12 Application Note precludes the district court’s conclusion. It states: “the defendant \\n\\n13 must have actually served a period of imprisonment on such sentence.” Id. at § 4A1.2 \\n\\n14 cmt. n.2 (emphasis added). At the time of his resentencing in this case, Valente had \\n\\n15 not yet served that sentence. As such, to assign two points for that DWAI \\n\\n16 conviction was error. \\n\\n17 We recognize that other Circuits have not required strict adherence to the \\n\\n\\n 12\\n\\n 1 text of the Application Note. See, e.g., United States v. Reid, 827 F.3d 797, 803 (8th \\n\\n 2 Cir. 2016) (concluding that Guidelines context compels the conclusion that, for § \\n\\n 3 4A1.1(b) not to be implicated, state must take “affirmative steps” to relieve \\n\\n 4 defendant of obligation to serve prison time); United States v. Rayborn, 957 F.2d 841, \\n\\n 5 844–45 (11th Cir. 1992) (affirming assignment of three additional criminal history \\n\\n 6 points where defendant was free on bond and had not begun serving a prior \\n\\n 7 sentence at the time he committed the instant offense); United States v. Duffy, 29 \\n\\n 8 F.3d 625, 625 (5th Cir. 1994) (per curiam) (affirming assignment of additional \\n\\n 9 criminal history points where defendant had not begun to serve his state \\n\\n10 sentences). However, not only is the language of the Application Note \\n\\n11 unambiguous, but a strict reading of this Note accords with “one of the most basic \\n\\n12 interpretative canons, that [language] should be construed . . . so that no part will \\n\\n13 be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 \\n\\n14 U.S. 303, 314 (2009) (internal quotation marks and citations omitted). Any \\n\\n15 alternative reading ignores the emphasis communicated by the word “actually.” \\n\\n16 In addition, we conclude that the Application Note’s plain meaning provides a \\n\\n17 practicable means for gauging the severity of a prior state conviction and sentence \\n\\n\\n 13\\n\\n 1 because the sentencing methods of states vary significantly, and it is thus, at times, \\n\\n 2 difficult for the district court to assess the severity of sentences imposed by those \\n\\n 3 courts. \\n\\n 4 Because Valente’s prior sentence was not actually served, it was error to \\n\\n 5 assign an additional criminal history point for that sentence.4 \\n\\n 6 In its brief, the Government maintained that even if there were error in \\n\\n 7 assigning the second criminal history point to the recidivist DWAI conviction, it \\n\\n 8 would be harmless because, without that point, Valente would still have had seven \\n\\n 9 criminal history points and fallen within Criminal History Category IV, which \\n\\n10 requires 7, 8, or 9 criminal history points. The error was not harmless, however, \\n\\n11 because Valente should have been assigned only six criminal history points, \\n\\n12 placing him in Criminal History Category III. \\n\\n13 We have concluded that the district court erred in determining that the \\n\\n14 recidivist DWAI conviction merited the assignment of two criminal history points \\n\\n\\n\\n 4 We recognize that there may be cases where the reason that the defendant did not serve his \\n sentence appears to lie outside the heartland of the Application Note. In such cases, the plain \\n language of the Application Note controls the district court’s guidelines calculation, but it does \\n not preclude it from departing or varying from the Guidelines Sentencing Range when the \\n particular facts justify such a departure or nonguidelines sentence.\\n\\n 14\\n\\n 1 under § 4A1.1(b) based on the plain language of Application Note 12 to U.S.S.G. § \\n\\n 2 4A1.2. Accordingly, the DWAI conviction only merits the assignment of one \\n\\n 3 criminal history point under § 4A1.1(c). As the Government conceded at oral \\n\\n 4 argument, however, § 4A.1.1(c) provides that only four criminal history points \\n\\n 5 may be added under that subsection, and the four point maximum has already \\n\\n 6 been met in this case. We held above that Valente’s prior interlock device \\n\\n 7 conviction merited the addition of one point under § 4A1.1(c), and Valente has \\n\\n 8 three other prior convictions for which the district court properly assigned three \\n\\n 9 points under § 4A1.1(c).5 As a result, both of the criminal history points that the \\n\\n10 district court assigned for Valente’s recidivist DWAI conviction must be \\n\\n11 disallowed, and Valente’s criminal convictions should have resulted in only four \\n\\n12 criminal history points rather than six. Because Valente was convicted of the \\n\\n13 current offenses while under criminal sentences for two other convictions, two \\n\\n14 points are added under § 4A1.1(d). His resulting criminal history score is six, \\n\\n15 rather than the eight that the district court used to sentence Valente. \\n\\n\\n\\n 5 Valente challenged the assessment of these three criminal history points in his prior appeal, and \\n we held that the district court did not err in assessing these points. See Valente, 688 F. App’x at 78‐\\n 79. \\n\\n 15\\n\\n 1 Valente thus is in Criminal History Category III, rather than Category IV, \\n\\n 2 pursuant to U.S.S.G. Chapter 5, Part A. His offense level is 34, and his correct \\n\\n 3 Guidelines Range is therefore 188–235 months, rather than 210–262 months. \\n\\n 4 Because that error resulted in a higher Guidelines Range, it is prejudicial, and we \\n\\n 5 remand to the district court for resentencing, applying the correct Guidelines \\n\\n 6 Range.6 \\n\\n 7 THE RESTITUTION ORDER \\n\\n 8 Finally, Valente appeals the district court’s imposition of an amended \\n\\n 9 restitution order. The government originally calculated the total net loss for all \\n\\n10 investors to be $8,200,579.69, and the district court used this calculation when \\n\\n11 imposing the initial restitution order. After Valente filed his notice of appeal for \\n\\n12 his original sentence, the Government realized it had made an error in the loss \\n\\n13 calculation by reducing the loss amount by the total net gain of some investors, \\n\\n14 when that gain was not available to repay the losses to other investors. Thus, the \\n\\n\\n 6 Having remanded on the sentencing issue for procedural error, we need not consider Valente’s \\n other arguments as to sentencing. Valente’s other arguments are that (1) the district court \\n committed procedural error by refusing to consider the prior conduct and prior sentences of \\n similarly situated defendants; (2) the district court committed procedural error by misstating the \\n Guidelines calculations in a court exhibit distributed to the parties during resentencing; and (3) \\n his sentence is substantively unreasonable. \\n\\n 16\\n\\n 1 Government sought to have the restitution order amended to $8,616,113.39. The \\n\\n 2 district court imposed an amended restitution order for this amount during \\n\\n 3 resentencing. Valente argues that the district court did not have authority to \\n\\n 4 amend the restitution order. \\n\\n 5 In general, when we remand to a district court for resentencing, that remand \\n\\n 6 is “for limited, and not de novo sentencing.” United States v. Malki, 718 F.3d 178, 182 \\n\\n 7 (2d Cir. 2013). “When our remand is limited, the mandate rule generally forecloses \\n\\n 8 re‐litigation of issues previously waived by the parties or decided by the appellate \\n\\n 9 court.” Id. However, there is a narrow exception providing that “[a] court’s \\n\\n10 reconsideration of its own earlier decision in a case may . . . be justified in \\n\\n11 compelling circumstances, consisting principally of (1) an intervening change in \\n\\n12 controlling law, (2) new evidence, or (3) the need to correct a clear error of law or \\n\\n13 to prevent manifest injustice.” United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009); \\n\\n14 see also Malki, 718 F.3d at 182 (“The presumption of limited resentencing may be \\n\\n15 overcome if issues ‘became relevant only after the initial appellate review’ or if the \\n\\n16 court is presented with a ‘cogent or compelling reason for resentencing de novo.’”) \\n\\n17 (quoting United States v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010)). \\n\\n\\n 17\\n\\n 1 In United States v. Johnson, we permitted the district court to impose \\n\\n 2 restitution during resentencing on other grounds where the government had not \\n\\n 3 requested restitution in the initial sentencing and the district court had not \\n\\n 4 imposed it. 378 F.3d 230, 244 (2d Cir. 2004). There we found that it was clear legal \\n\\n 5 error to have not imposed restitution pursuant to the Mandatory Victim \\n\\n 6 Restitution Act (“MVRA”), and that imposing a restitution order on resentencing \\n\\n 7 was therefore appropriate. Id. Valente conceded at oral argument that, if we found \\n\\n 8 clear error in the district court’s original restitution order or found a “cogent or \\n\\n 9 compelling reason for resentencing,” the district court did not err in imposing the \\n\\n10 greater amount in the amended order. \\n\\n11 The MVRA required the district court to impose a restitution order \\n\\n12 requiring Valente to repay each victim in the full amount of his losses due to \\n\\n13 Valente’s fraudulent scheme. 18 U.S.C. §§ 3663A(a), (b)(1)(B)(i)(II); see also United \\n\\n14 States v. Dupes, 513 F. 3d 338, 345 (2d Cir. 2008) (“The MVRA makes full restitution \\n\\n15 mandatory for certain crimes.”). Therefore, it was appropriate for the district court \\n\\n16 to impose an amended order that required Valente to pay each victim in full, and \\n\\n\\n\\n\\n 18\\n\\n1 thus, by correcting the restitution amount during resentencing, the district court \\n\\n2 did not err. \\n\\n3 CONCLUSION \\n\\n4 For the reasons stated above, we VACATE and REMAND in part and \\n\\n5 AFFIRM in part the district court’s amended judgment. \\n\\n6 \\n\\n\\n\\n\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368438/\", \"author_raw\": \"DRONEY, Circuit Judge:\"}, {\"author\": \"GERARD E. LYNCH, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"GERARD E. LYNCH, Circuit Judge, concurring:\\n\\n I fully concur in the opinion of the Court. It is well established that the\\n\\nrecommended guideline sentencing range is the starting point for sentencing, see\\n\\nRita v. United States, 551 U.S. 338, 347–48 (2007), and that an error in calculating\\n\\nthe guidelines recommendation ordinarily requires a remand for a resentencing\\n\\nthat takes account of the correct guideline range, see Peugh v. United States, 569\\n\\nU.S. 530, 537 (2013). Since the guideline range was incorrectly calculated here,1\\n\\nthe vacatur of the sentence and remand for resentencing is required, because the\\n\\nguideline range is one of the factors that a district court must take into account in\\n\\nimposing sentence, see 18 U.S.C. § 3553(a)(4)(A), and we must therefore presume\\n\\n\\n\\n 1\\n Although I agree with my colleagues that the plain language of Application\\nNote 2 to U.S.S.G. § 4A1.2 is ultimately controlling, I note that the point is not free from\\ndoubt, and that the positions taken by our sister Circuits, discussed at pp. 13-14 of Judge\\nDroney’s opinion for the Court, are not without force. It is possible that the Sentencing\\nCommission’s “actually served” language was intended to distinguish sentences,\\ncommon in many state sentencing regimes, that nominally impose a sentence of\\nincarceration, but then suspend that sentence in favor of a term of probation, from\\nsentences of incarceration that were intended to be actually served. See United States v.\\nReid, 827 F.3d 797, 803 (8th Cir. 2016) (citing U.S.S.G. §§ 4A1.2(a)(3) and (b)(2), which are\\nreferenced in Application Note 2). The use of suspended sentences as a vehicle to\\nimpose a sentence of probation is common enough that it must have been present to the\\nminds of the Sentencing Commissioners, while situations like the one in this case and\\nthose in the other cases discussed in our opinion, in which sentenced prisoners seem to\\nslip through the cracks in the system, are anomalous, and may not have been fully\\nconsidered. In light of the disagreement among the Courts of Appeals about the\\napplication of the “actually served” language, the Commission may wish to clarify its\\nintended meaning.\\n\\nthat the inaccurately calculated range may have had an effect on the sentence\\n\\nimposed.\\n\\n I add a few words only to emphasize that while the guidelines are the\\n\\nstarting point, they are most certainly not an end point to the district court’s role\\n\\nin determining and imposing a just sentence. The technical nature of the error in\\n\\nthis case is a good example of why that is so.\\n\\n Congress has commanded that the job of the sentencing judge is to\\n\\n“impose a sentence sufficient, but not greater than necessary, to comply with the\\n\\npurposes” of sentencing set forth” in § 3553(a)(2) — roughly paraphrased, the\\n\\ntraditional purposes of providing just punishment (retribution), affording\\n\\nadequate specific and general deterrence, protecting the public from future\\n\\ncrimes the defendant might commit (incapacitation), and providing the\\n\\ndefendant with necessary correctional treatment (rehabilitation). See 18 U.S.C. §\\n\\n3553(a)(2)(A)–(D). In making this assessment, the court is instructed to consider,\\n\\nin addition to the guideline recommendation and the goals of avoiding\\n\\nunjustified disparity and providing restitution to any victims, “the nature and\\n\\ncircumstances of the offense and the history and characteristics of the\\n\\ndefendant.” Id. § 3553(a)(1).\\n\\n\\n 2\\n\\n The Sentencing Guidelines themselves are to some degree premised on\\n\\nthose factors. Although many types of crimes can be committed in various ways\\n\\nthat implicate a broad range of aggravating and mitigating circumstances,\\n\\nmaking it difficult to reduce the seriousness of a crime to a simple score, the\\n\\nSentencing Guidelines take account, for each category of crime, of a large number\\n\\nof such circumstances, and will often (though not always) provide a reasonable\\n\\n(if imperfect) approximation of the seriousness of the defendant’s crime as\\n\\ncompared to other violations of the law. With respect to the “history and\\n\\ncharacteristics of the defendant,” however — an even more difficult assessment\\n\\nto reduce to a single number — the Guidelines essentially give up, attempting to\\n\\nassess only the significance and weight of the offender’s record of criminal\\n\\nconvictions, as a kind of proxy for the much more complex inquiry involved in\\n\\njudging the defendant’s character.\\n\\n Moreover, even within the narrow area that the Guidelines attempt to\\n\\nmeasure, the “criminal history score” and attendant “criminal history categories”\\n\\nare at best a crude measure of the seriousness of the offender’s record of prior\\n\\nconvictions. That is not a criticism of the Sentencing Commission, which has\\n\\ndeveloped a complex and generally reasonable method of scoring prior\\n\\n\\n 3\\n\\nconvictions; it is simply a recognition of the impossibility of the task. The\\n\\ncriminal history score can serve at best a rough guide to the seriousness of the\\n\\ndefendant’s prior adjudicated criminal conduct, and an even rougher way of\\n\\nassessing the defendant’s overall character.\\n\\n This case exemplifies the difficulty. Valente has accumulated a striking\\n\\nnumber of convictions for drunk or impaired driving. All six of his criminal\\n\\nhistory points, which place him at the top of Criminal History Category III,\\n\\nderive from his problems with drinking and driving. Criminal defendants can\\n\\naccumulate six criminal history points in a variety of ways. For example, two\\n\\nconvictions for armed robbery, for each of which the offender received a sentence\\n\\nof more than 13 months in prison, would similarly yield six criminal history\\n\\npoints. So would two non-violent felony fraud convictions with sentences of over\\n\\n13 months. So would an accumulation of misdemeanor petty larceny convictions\\n\\nequivalent in number and timing to this defendant’s alcohol and driving\\n\\nmisdemeanors.\\n\\n Each of these hypothetical offenders would have the same number of\\n\\ncriminal history points as Valente. Reasonable people, however, might well see\\n\\nthese offenders as significantly different, and could differ as to how to rank the\\n\\n\\n 4\\n\\nseriousness of their records. More importantly, the “character” of each of these\\n\\noffenders would present (even putting aside every other characteristic that a\\n\\nhuman being can have, and focusing, solely and somewhat artificially, only on\\n\\nwhat is demonstrated by the criminal offenses for which he was convicted and\\n\\npunished) a somewhat different profile, in terms of the likelihood of recidivism\\n\\nrelevant to the crime of conviction – in this case, financial fraud — and the\\n\\ndanger presented to the community. The two-time mugger might suggest a\\n\\nviolent street predator, the recidivist fraudster a professional con artist, the\\n\\nhabitual shoplifter perhaps a homeless drug addict. And even those profiles\\n\\nwould be an oversimplified portrait of the “history and characteristics” of a\\n\\ncomplicated human being. A district judge looking at Valente’s record in light of\\n\\nall the other information about his history and character presented in a\\n\\nPresentence Report (“PSR”) might see a hopeless alcoholic, more ill than evil;\\n\\nalternatively, a judge might see a man who arrogantly persists in trying to beat\\n\\nthe system and continue to operate a dangerous motor vehicle even when clearly\\n\\nimpaired, and to evade mechanisms to prevent such conduct. In determining\\n\\nwhether either of these caricatures is an accurate depiction of the defendant, the\\n\\ndistrict court, via the PSR and other sources of information such as input from\\n\\n\\n 5\\n\\nvictims of the crime of conviction and from the defendant’s family members and\\n\\nfriends, would have much more information at its disposal than simply a score.\\n\\n Some of that information is highly relevant to assessing the risk that a\\n\\ndefendant poses to the community, but is completely excluded from the criminal\\n\\nhistory calculation. In this case, for example, a reasonable judge might think that\\n\\nValente’s actual record of convictions is of limited relevance in assessing the\\n\\ndanger that he will commit another fraud: if the judge believed that Valente\\n\\nsincerely wanted to engage in alcohol treatment and get his alcoholism under\\n\\ncontrol, he or she might significantly discount his history.2 On the other hand,\\n\\none factor in the PSR, mentioned only briefly in the Court’s opinion because it is\\n\\nirrelevant to the issues before this Court, precisely because it plays no role in\\n\\ncalculating the Guidelines recommendation, would seem unquestionably\\n\\nrelevant, not only to judging Valente’s overall character, but specifically to\\n\\nassessing the risk that he would repeat the criminal conduct for which he faces\\n\\nsentence.\\n\\n\\n 2\\n I do not suggest that this is a correct view of Valente’s history; on the cold\\nappellate record, I would not presume to judge such a question. I suggest only that,\\ndepending on what else the judge knew besides the bare fact of a series of\\nalcohol/driving related offenses, this might be a possible conclusion. One can easily\\nimagine facts that would lead a judge to take a very different, and much harsher, view\\nof these convictions.\\n\\n 6\\n\\n For some seventeen years before he began the investment advisory\\n\\nbusiness through which he committed the fraud for which he was convicted,\\n\\nValente was a registered investment broker. During that time, he was the subject\\n\\nof seventeen consumer complaints, and twice filed for bankruptcy. He was\\n\\neventually fired by the company for whom he worked as a broker and was\\n\\npermanently barred from employment by regulated financial industry entities\\n\\n“based on findings that on multiple occasions [he] had made unauthorized,\\n\\nexcessive, and unsuitable trades for customers and had provided false written\\n\\naccount information to customers.” PSR ¶ 33.\\n\\n I do not presume to suggest precisely how much weight those facts should\\n\\nbear in assessing Valente’s “history and characteristics,” or to attempt to translate\\n\\nthis factor into a number of days, weeks, or months of incarceration. That\\n\\ndemanding task is for the district court, which has a fuller picture of the offender\\n\\nwho stands before it. I would venture to predict, however, that most judges\\n\\nwould give such a factor more weight in assessing the danger of recidivism than\\n\\nthey would give to whether his record of impaired driving earned him five or\\n\\nonly four “criminal history points” in a complex and technical scheme for\\n\\napproximating the seriousness of his prior criminal convictions.\\n\\n\\n 7\\n\\n The experienced district judge in this case had before him a multiplicity of\\n\\nfacts about the defendant, including letters from people who knew him, the\\n\\nperspective of victims of his fraud, the criminal record discussed above, and the\\n\\nfact of his regulatory, non-criminal offenses. The judge surely weighed the\\n\\nguideline recommendation along with these factors in arriving at an appropriate\\n\\nsentence. It might be that, having been corrected by this Court with respect to the\\n\\ntechnical error made in calculating the criminal history score (an error, I should\\n\\nnote, the precise scope of which escaped the government, which initially\\n\\ndefended the district court’s calculation, and then withdrew its argument by\\n\\nnoting an aspect of the case that the district court, the government, and even\\n\\nValente’s own attorney had overlooked), the district court may conclude that a\\n\\ndifferent sentence is appropriate. Or it might not; the court might conclude that\\n\\nthe guideline calculation played only a minimal role in its original sentence, and\\n\\nthat the factors that primarily influenced the selection of a particular sentence as\\n\\nthe minimum necessary to accomplish the purposes of sentencing outweighed\\n\\nthen, and outweigh now, the recommended guideline range. That is for the\\n\\ndistrict court to determine. The Court’s opinion specifically notes that while “the\\n\\nplain meaning of the Application Note controls the district court’s guidelines\\n\\n\\n 8\\n\\ncalculation, . . . it does not preclude [the court] from departing or varying from\\n\\nthe Guidelines Sentencing Range [if] the particular facts justify such a departure\\n\\nor nonguidelines sentence.” Maj. Op. 14 n.4. This concurrence is essentially a\\n\\ngloss on, or partial explanation of, that footnote.\\n\\n Sentencing involves difficult, painful exercises of judgment about the\\n\\ndegree of punishment that is required in particular cases. It requires a judge to\\n\\nmeasure and translate into a quantifiable fine or period of incarceration or\\n\\nsupervision a multiplicity of aspects of a particular crime and offender, while\\n\\nbalancing a variety of incommensurate goals of sentencing each of which may\\n\\npull the court in different directions. It is not easily reduced to a formula. That is\\n\\nwhy the Guidelines are only advisory, and it is why an error in the guideline\\n\\ncalculation may have a greater or lesser impact — or no impact at all — on the\\n\\nactual sentence eventually imposed.\\n\\n We, as an appellate tribunal, can say that in this case an error was made in\\n\\ncalculating the range of sentences recommended by the Guidelines. It is for the\\n\\ndistrict court to rebalance the factors that go into its difficult decision, taking that\\n\\ncorrection into account. Perhaps we will yet be called upon to decide whether the\\n\\nsentence the district court imposes on remand is a reasonable one. We have not\\n\\n\\n 9\\n\\nyet undertaken that analysis with respect to the sentence previously imposed,\\n\\nand nothing in our opinion purports to instruct the district court on what\\n\\nsentence it should impose. On that understanding, I join fully in that opinion.\\n\\n\\n\\n\\n 10\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368438/\", \"author_raw\": \"GERARD E. LYNCH, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"RAGGI"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"DRONEY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591185/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Scott VALENTE, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n17-2311-cr\nUnited States v. Valente\n\n\n\n 17‐2311‐cr\n United States v. Valente \n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4\n 5\n 6 August Term, 2018 \n 7 No. 17‐2311‐cr \n 8\n 9 UNITED STATES OF AMERICA, \n 10 Appellee, \n 11\n 12 v. \n 13\n 14 SCOTT VALENTE, \n 15 Defendant‐Appellant. \n 16\n 17\n 18\n 19 Appeal from the United States District Court \n 20 for the Northern District of New York \n 21 No. 1:15‐cr‐00124‐GLS‐1 \n 22\n 23\n 24 ARGUED: NOVEMBER 1, 2018 \n 25 DECIDED: FEBRUARY 15, 2019 \n 26\n 27\n 28 Before: RAGGI, LYNCH and DRONEY, Circuit Judges. \n 29\n 30\n 31 Appeal from an amended judgment of conviction of the United States \n\n 1\n\n 1 District Court for the Northern District of New York entered on July 21, 2017 \n 2 (Sharpe, J.). The defendant contends that his sentence was procedurally and \n 3 substantively unreasonable and that the district court lacked authority to impose \n 4 the amended restitution order that it imposed on resentencing. We VACATE in \n 5 part the district court’s sentence of incarceration as procedurally unreasonable \n 6 because of an incorrect criminal history finding and REMAND on that issue, but \n 7 we AFFIRM the district court’s imposition of the amended restitution order. \n 8 \n 9 Judge Lynch, Circuit Judge, concurs in a separate opinion. \n10 \n11 \n12 STEVEN D. CLYMER (Richard D. Belliss, Assistant \n13 United States Attorneys, on the brief), for Grant C. \n14 Jaquith, United States Attorney for the Northern \n15 District of New York, Syracuse, NY, for Appellee. \n16 \n17 MOLLY CORBETT (James P. Egan, on the brief), for \n18 Lisa A. Peebles, Federal Public Defender for the \n19 Northern District of New York, Albany, NY, for \n20 Appellant. \n21 \n22 DRONEY, Circuit Judge: \n\n23 Scott Valente (“Valente”) appeals from the district court’s amended \n\n24 judgment of conviction entered on July 21, 2017. He contends that his sentence was \n\n25 procedurally and substantively unreasonable and that the district court lacked \n\n26 authority to impose the amended restitution order on resentencing. We vacate a \n\n27 portion of the district court’s sentence of incarceration as procedurally \n\n\n\n 2\n\n 1 unreasonable because of an incorrect criminal history finding, but we affirm the \n\n 2 amended restitution order. \n\n 3 VALENTE’S GUILTY PLEA AND SENTENCE \n\n 4 On May 11, 2015, Valente pleaded guilty to a three‐count information \n\n 5 charging Securities Fraud in violation of 15 U.S.C. § 78j (Count 1), Mail Fraud in \n\n 6 violation of 18 U.S.C. § 1341 (Count 2), and Obstructing and Impeding the Internal \n\n 7 Revenue Laws in violation of 26 U.S.C. § 7212(a) (Count 3). On November 20, 2015, \n\n 8 the United States District Court for the Northern District of New York (Sharpe, J.) \n\n 9 sentenced Valente to 240 months on each of the first two counts, and 36 months on \n\n10 Count 3, all to run concurrently, and to three years of supervised release. The \n\n11 district court also ordered Valente to pay restitution in the amount of \n\n12 $8,200,579.69. Judgment was entered the same day. Valente appealed, and this \n\n13 Court remanded to the district court to reconsider the assessment of certain \n\n14 criminal history points to Valente’s criminal history score. United States v. Valente, \n\n15 688 F. Appʹx 76, 79–80 (2d Cir. 2017) (summary order). On July 20, 2017, the district \n\n16 court reconsidered its application of those points, applied them again, and \n\n17 resentenced Valente to the same terms of imprisonment and of supervised release \n\n\n 3\n\n 1 as it had previously imposed. The district court also, over defense counsel’s \n\n 2 objection, increased the prior restitution amount to $8,616,113.39. The amended \n\n 3 judgment was entered on July 21, 2017, and a second amended judgment was \n\n 4 entered on August 8, 2017.1 \n\n 5 THE UNDERLYING FRAUDS \n\n 6 This case arises out of frauds that Valente, a former registered investment \n\n 7 broker, perpetrated on the clients of The ELIV Group, LLC (“ELIV”), an \n\n 8 unregistered investment and consulting group that Valente owned and operated \n\n 9 in Albany, New York. Valente established ELIV in 2010 after he was barred in 2009 \n\n10 from associating with Financial Industry Regulatory Authority (“FINRA”) \n\n11 members, based on findings that he had made unauthorized trades for customers \n\n12 and provided false written account information to customers. To establish ELIV \n\n13 and open brokerage accounts on its behalf, Valente arranged for his wife to be the \n\n14 nominal owner of ELIV, even though she had never been registered as a broker or \n\n15 held any type of brokerage license. Valente was ELIV’s de facto owner, as well as \n\n\n\n\n 1 The second amended judgment was entered because of a clerical error, and it is not challenged \n here except for the same reasons as the appeal of the amended judgment. \n\n 4\n\n 1 its manager and sole employee. \n\n 2 Valente recruited investors for ELIV through hotel conferences, seminars, \n\n 3 and references from existing clients, and he used investors’ funds to purchase \n\n 4 various securities. Valente represented that, in exchange for managing these \n\n 5 investments, he would be charging an annual 1% fee. When soliciting investors, \n\n 6 Valente fraudulently stated that ELIV was an accredited investment and \n\n 7 consulting firm. Valente also falsely stated on ELIV’s website that ELIV had \n\n 8 achieved a five year average annual return of 34.5%, even though it had not been \n\n 9 in business for five years and consistently lost money through speculative \n\n10 investments. After Valente obtained investments in ELIV, he continued to deceive \n\n11 investors by, inter alia, creating and mailing monthly performance statements that \n\n12 falsely reported gains in various accounts. \n\n13 Valente further deceived potential investors by falsely representing that \n\n14 ELIV was an approved custodian for tax‐deferred individual retirement accounts \n\n15 (“IRAs”) and that ELIV could open new IRAs and create rollover IRA accounts. In \n\n16 reliance on these misrepresentations, approximately forty‐eight of ELIV’s clients \n\n17 rolled over IRA or other retirement accounts to the purported ELIV IRAs. As a \n\n\n 5\n\n 1 result, these clients lost their tax‐deferred investments and exposed themselves to \n\n 2 early withdrawal penalties. In addition, Valente issued to ELIV investors false \n\n 3 financial account statements to make it appear as if ELIV was holding the \n\n 4 investors’ retirement accounts as legitimate IRA accounts. Some of these altered \n\n 5 statements were then sent to the Internal Revenue Service by accountants who \n\n 6 believed that they were valid, creating potentially adverse tax implications for \n\n 7 investors. \n\n 8 Valente also submitted fraudulent information to the Securities and \n\n 9 Exchange Commission (“SEC”) after it commenced an investigation of ELIV. \n\n10 The SEC moved for a preliminary injunction against Valente and ELIV, \n\n11 which the United States District Court for the Southern District of New York \n\n12 granted in June 2014, ordering Valente and ELIV to cease operations and freezing \n\n13 their assets. The SEC’s analysis of ELIV’s financial records revealed that, between \n\n14 November 2010 and June 2014, Valente, through ELIV, had obtained \n\n15 approximately $10.5 million from more than 100 investors. The SEC investigation \n\n16 revealed that, as of the date of the asset freeze, ELIV had suffered significant losses, \n\n17 as ELIV’s investments were worth approximately $4.7 million less than what \n\n\n 6\n\n 1 investors had provided in principal. It also revealed that these losses were not \n\n 2 attributable solely to poor investment strategy, as Valente had appropriated \n\n 3 approximately $2.2 million of the funds invested for personal expenses, which was \n\n 4 well in excess of the 1% management fee that he had promised investors. \n\n 5 On May 11, 2015, Valente waived indictment and pleaded guilty in the \n\n 6 Northern District of New York. He was sentenced on November 20, 2015, and \n\n 7 resentenced on July 20, 2017, as mentioned above. This appeal revisits certain \n\n 8 criminal history issues discussed in the initial appeal and addresses the amended \n\n 9 restitution order. \n\n10 APPLICATION OF THE SENTENCING GUIDELINES \n\n11 At resentencing, the district court found that Valente’s adjusted offense level \n\n12 under the Sentencing Guidelines was 34, that he fell within Criminal History \n\n13 Category IV, based on eight criminal history points, and that the Guidelines \n\n14 imprisonment range was 210–262 months. \n\n15 Valente’s criminal history includes multiple state convictions related to \n\n16 driving while intoxicated, including two Driving While Ability Impaired \n\n17 (“DWAI”) infractions, a recidivist DWAI misdemeanor, a driving while \n\n\n 7\n\n 1 intoxicated misdemeanor, and a misdemeanor for operating a motor vehicle \n\n 2 without an ignition interlock device.2 \n\n 3 On appeal, Valente first challenges the procedural reasonableness of the \n\n 4 district court’s assignment of two particular criminal history points: one for his \n\n 5 prior state misdemeanor conviction of failing to use a vehicle with an interlock \n\n 6 device, and a second for being a recidivist DWAI offender. Valente had been given \n\n 7 a sixty‐day sentence of imprisonment in state court for the latter conviction. We \n\n 8 consider the district court’s assignment of each point in turn. \n\n 9 Section 4A1.2(c) of the Sentencing Guidelines provides guidance for \n\n10 determining whether “prior sentences” are counted in an offender’s criminal \n\n11 history score. All felonies are counted. U.S.S.G. § 4A1.2(c). Certain prior \n\n12 misdemeanor convictions are not counted if they are listed under § 4A1.2(c)(1) or \n\n13 are similar to the listed offenses. But, an unlisted misdemeanor offense is counted \n\n14 if it is categorically more serious than a listed offense. United States v. Morales, 239 \n\n15 F.3d 113, 118 (2d Cir. 2000). In this context, “categorically more serious” does not \n\n\n\n\n Due to his prior DWAI convictions, Valente was required to install an ignition “interlock device” \n 2 \n\n on his motor vehicle to prevent his operation of the vehicle while intoxicated. \n\n 8\n\n 1 mean that the unlisted offense is “within a category that is more serious than the \n\n 2 [l]isted [o]ffenses” based solely on its underlying elements. Id. at 118 n.5. Rather, \n\n 3 we “use[] the adverb [‘categorically’] in its ordinary sense to mean ‘without \n\n 4 qualification or reservation.’” Id. (quoting Webster’s Third New International \n\n 5 Dictionary (1993) (“categorically”)). In determining whether an offense is \n\n 6 categorically more serious than a listed offense, \n\n 7 the court should use a common sense approach that includes \n 8 consideration of relevant factors such as (i) a comparison of \n 9 punishments imposed for the listed and unlisted offenses, (ii) the \n10 perceived seriousness of the offense as indicated by the level of \n11 punishment; (iii) the elements of the offense, (iv) the level of \n12 culpability involved; and (v) the degree to which the commission of \n13 the offense indicates a likelihood of recurring criminal conduct. \n\n14 U.S.S.G. § 4A1.2 cmt. n.12(A).3 The district court may also consider “any other \n\n15 factor the court reasonably finds relevant in comparing prior offenses and [l]isted \n\n16 [o]ffenses.” United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d Cir. 1999). The \n\n17 misdemeanor interlock device offense is not listed in U.S.S.G. § 4A1.2(c)(1). \n\n\n\n\n The United States Sentencing Commission adopted this multifactor “common sense approach” \n 3 \n\n when it amended Application Note 12 to U.S.S.G. § 4A1.2 in 2007. U.S. Sentencing Guidelines \n Manual supp. to app. C at 237 (2007). But our case law required this approach even before that \n amendment. See Morales, 239 F.3d at 118; United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d \n Cir. 1999). \n\n 9\n\n 1 We review a district court’s interpretation of the Sentencing Guidelines de \n\n 2 novo, but we examine its factual findings only for clear error. United States v. Potes‐\n\n 3 Castillo, 638 F.3d 106, 108–09 (2d Cir. 2011). When reviewing challenged U.S.S.G. § \n\n 4 4A1.2(c) rulings, this Court examines de novo the district court’s determinations \n\n 5 based on an offender’s prior offense that “punishes only one basic form of \n\n 6 conduct,” Morales, 239 F.3d at 117–18, but, where “the inquiry will necessarily \n\n 7 focus on the particular conduct of the defendant, we give due deference to a court’s \n\n 8 application of the Guidelines to the facts.” United States v. DeJesus‐Concepcion, 607 \n\n 9 F.3d 303, 305 (2d Cir. 2010). By extension, we also give due deference to a court’s \n\n10 application of the Guidelines to the facts where, as here, the court considers the \n\n11 particular conduct of the defendant as to the factors listed in Application Note \n\n12 12(A) to U.S.S.G. § 4A1.2. \n\n13 Regarding the prior interlock device conviction, the district court \n\n14 determined that the conviction, coupled with the criminal history that led to that \n\n15 offense, indicated a likelihood of recurring criminal conduct and increased the \n\n16 culpability of the defendant. Valente argues, however, that the district court erred \n\n17 by not considering the other factors listed in Application Note 12(A) to U.S.S.G. § \n\n\n 10\n\n 1 4A1.2, which, he contends, would have led the district court to determine that the \n\n 2 offense was not more serious than those listed. We are not persuaded. The \n\n 3 Application Note (and the cases applying it) identifies the factors as ones that a \n\n 4 district court may consider. See U.S.S.G. § 4A1.2 cmt. n.12(A); see also DeJesus‐\n\n 5 Concepcion, 607 F.3d at 305. Accordingly, the district court is not required to \n\n 6 explicitly indicate that it considered the other listed factors or assign any one of \n\n 7 them particular weight. In any event, the record indicates that the district court \n\n 8 considered other factors, see Joint App’x at 286–87; it simply focused on two factors \n\n 9 that, in its view, made the prior conviction more serious than the listed offenses. \n\n10 Nor did the court err in concluding that, based on the factors that it considered, \n\n11 the interlock device conviction merited the assignment of a criminal history point \n\n12 under § 4A1.1(c). \n\n13 We turn next to Valente’s argument regarding his prior conviction as a \n\n14 recidivist DWAI offender. U.S.S.G. § 4A1.1(b) assigns two points to prior \n\n15 convictions which result in a “sentence of imprisonment of at least sixty days.” \n\n16 The Application Notes to U.S.S.G. § 4A1.2 provide that “[t]o qualify as a sentence \n\n17 of imprisonment, the defendant must have actually served a period of \n\n\n 11\n\n 1 imprisonment on such sentence.” Id. at § 4A1.2 cmt. n.2. If the defendant did not \n\n 2 do so, the Sentencing Guidelines provide for only a one‐point enhancement under \n\n 3 U.S.S.G. § 4A1.1(c). Valente argues that the district court erred in adding a second \n\n 4 criminal history point for this offense because, although the state sentence that was \n\n 5 imposed was for sixty days imprisonment, he had not yet served it because of \n\n 6 medical issues. \n\n 7 Valente argues that the sentence was essentially suspended. The district \n\n 8 court determined that the sentence was not suspended or stayed and that Valente \n\n 9 had not been relieved of his obligation to eventually serve the period of \n\n10 imprisonment. The district court thus concluded that Valente’s unserved sentence \n\n11 satisfied § 4A1.1(b). We disagree because the unambiguous language of the \n\n12 Application Note precludes the district court’s conclusion. It states: “the defendant \n\n13 must have actually served a period of imprisonment on such sentence.” Id. at § 4A1.2 \n\n14 cmt. n.2 (emphasis added). At the time of his resentencing in this case, Valente had \n\n15 not yet served that sentence. As such, to assign two points for that DWAI \n\n16 conviction was error. \n\n17 We recognize that other Circuits have not required strict adherence to the \n\n\n 12\n\n 1 text of the Application Note. See, e.g., United States v. Reid, 827 F.3d 797, 803 (8th \n\n 2 Cir. 2016) (concluding that Guidelines context compels the conclusion that, for § \n\n 3 4A1.1(b) not to be implicated, state must take “affirmative steps” to relieve \n\n 4 defendant of obligation to serve prison time); United States v. Rayborn, 957 F.2d 841, \n\n 5 844–45 (11th Cir. 1992) (affirming assignment of three additional criminal history \n\n 6 points where defendant was free on bond and had not begun serving a prior \n\n 7 sentence at the time he committed the instant offense); United States v. Duffy, 29 \n\n 8 F.3d 625, 625 (5th Cir. 1994) (per curiam) (affirming assignment of additional \n\n 9 criminal history points where defendant had not begun to serve his state \n\n10 sentences). However, not only is the language of the Application Note \n\n11 unambiguous, but a strict reading of this Note accords with “one of the most basic \n\n12 interpretative canons, that [language] should be construed . . . so that no part will \n\n13 be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 \n\n14 U.S. 303, 314 (2009) (internal quotation marks and citations omitted). Any \n\n15 alternative reading ignores the emphasis communicated by the word “actually.” \n\n16 In addition, we conclude that the Application Note’s plain meaning provides a \n\n17 practicable means for gauging the severity of a prior state conviction and sentence \n\n\n 13\n\n 1 because the sentencing methods of states vary significantly, and it is thus, at times, \n\n 2 difficult for the district court to assess the severity of sentences imposed by those \n\n 3 courts. \n\n 4 Because Valente’s prior sentence was not actually served, it was error to \n\n 5 assign an additional criminal history point for that sentence.4 \n\n 6 In its brief, the Government maintained that even if there were error in \n\n 7 assigning the second criminal history point to the recidivist DWAI conviction, it \n\n 8 would be harmless because, without that point, Valente would still have had seven \n\n 9 criminal history points and fallen within Criminal History Category IV, which \n\n10 requires 7, 8, or 9 criminal history points. The error was not harmless, however, \n\n11 because Valente should have been assigned only six criminal history points, \n\n12 placing him in Criminal History Category III. \n\n13 We have concluded that the district court erred in determining that the \n\n14 recidivist DWAI conviction merited the assignment of two criminal history points \n\n\n\n 4 We recognize that there may be cases where the reason that the defendant did not serve his \n sentence appears to lie outside the heartland of the Application Note. In such cases, the plain \n language of the Application Note controls the district court’s guidelines calculation, but it does \n not preclude it from departing or varying from the Guidelines Sentencing Range when the \n particular facts justify such a departure or nonguidelines sentence.\n\n 14\n\n 1 under § 4A1.1(b) based on the plain language of Application Note 12 to U.S.S.G. § \n\n 2 4A1.2. Accordingly, the DWAI conviction only merits the assignment of one \n\n 3 criminal history point under § 4A1.1(c). As the Government conceded at oral \n\n 4 argument, however, § 4A.1.1(c) provides that only four criminal history points \n\n 5 may be added under that subsection, and the four point maximum has already \n\n 6 been met in this case. We held above that Valente’s prior interlock device \n\n 7 conviction merited the addition of one point under § 4A1.1(c), and Valente has \n\n 8 three other prior convictions for which the district court properly assigned three \n\n 9 points under § 4A1.1(c).5 As a result, both of the criminal history points that the \n\n10 district court assigned for Valente’s recidivist DWAI conviction must be \n\n11 disallowed, and Valente’s criminal convictions should have resulted in only four \n\n12 criminal history points rather than six. Because Valente was convicted of the \n\n13 current offenses while under criminal sentences for two other convictions, two \n\n14 points are added under § 4A1.1(d). His resulting criminal history score is six, \n\n15 rather than the eight that the district court used to sentence Valente. \n\n\n\n 5 Valente challenged the assessment of these three criminal history points in his prior appeal, and \n we held that the district court did not err in assessing these points. See Valente, 688 F. App’x at 78‐\n 79. \n\n 15\n\n 1 Valente thus is in Criminal History Category III, rather than Category IV, \n\n 2 pursuant to U.S.S.G. Chapter 5, Part A. His offense level is 34, and his correct \n\n 3 Guidelines Range is therefore 188–235 months, rather than 210–262 months. \n\n 4 Because that error resulted in a higher Guidelines Range, it is prejudicial, and we \n\n 5 remand to the district court for resentencing, applying the correct Guidelines \n\n 6 Range.6 \n\n 7 THE RESTITUTION ORDER \n\n 8 Finally, Valente appeals the district court’s imposition of an amended \n\n 9 restitution order. The government originally calculated the total net loss for all \n\n10 investors to be $8,200,579.69, and the district court used this calculation when \n\n11 imposing the initial restitution order. After Valente filed his notice of appeal for \n\n12 his original sentence, the Government realized it had made an error in the loss \n\n13 calculation by reducing the loss amount by the total net gain of some investors, \n\n14 when that gain was not available to repay the losses to other investors. Thus, the \n\n\n 6 Having remanded on the sentencing issue for procedural error, we need not consider Valente’s \n other arguments as to sentencing. Valente’s other arguments are that (1) the district court \n committed procedural error by refusing to consider the prior conduct and prior sentences of \n similarly situated defendants; (2) the district court committed procedural error by misstating the \n Guidelines calculations in a court exhibit distributed to the parties during resentencing; and (3) \n his sentence is substantively unreasonable. \n\n 16\n\n 1 Government sought to have the restitution order amended to $8,616,113.39. The \n\n 2 district court imposed an amended restitution order for this amount during \n\n 3 resentencing. Valente argues that the district court did not have authority to \n\n 4 amend the restitution order. \n\n 5 In general, when we remand to a district court for resentencing, that remand \n\n 6 is “for limited, and not de novo sentencing.” United States v. Malki, 718 F.3d 178, 182 \n\n 7 (2d Cir. 2013). “When our remand is limited, the mandate rule generally forecloses \n\n 8 re‐litigation of issues previously waived by the parties or decided by the appellate \n\n 9 court.” Id. However, there is a narrow exception providing that “[a] court’s \n\n10 reconsideration of its own earlier decision in a case may . . . be justified in \n\n11 compelling circumstances, consisting principally of (1) an intervening change in \n\n12 controlling law, (2) new evidence, or (3) the need to correct a clear error of law or \n\n13 to prevent manifest injustice.” United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009); \n\n14 see also Malki, 718 F.3d at 182 (“The presumption of limited resentencing may be \n\n15 overcome if issues ‘became relevant only after the initial appellate review’ or if the \n\n16 court is presented with a ‘cogent or compelling reason for resentencing de novo.’”) \n\n17 (quoting United States v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010)). \n\n\n 17\n\n 1 In United States v. Johnson, we permitted the district court to impose \n\n 2 restitution during resentencing on other grounds where the government had not \n\n 3 requested restitution in the initial sentencing and the district court had not \n\n 4 imposed it. 378 F.3d 230, 244 (2d Cir. 2004). There we found that it was clear legal \n\n 5 error to have not imposed restitution pursuant to the Mandatory Victim \n\n 6 Restitution Act (“MVRA”), and that imposing a restitution order on resentencing \n\n 7 was therefore appropriate. Id. Valente conceded at oral argument that, if we found \n\n 8 clear error in the district court’s original restitution order or found a “cogent or \n\n 9 compelling reason for resentencing,” the district court did not err in imposing the \n\n10 greater amount in the amended order. \n\n11 The MVRA required the district court to impose a restitution order \n\n12 requiring Valente to repay each victim in the full amount of his losses due to \n\n13 Valente’s fraudulent scheme. 18 U.S.C. §§ 3663A(a), (b)(1)(B)(i)(II); see also United \n\n14 States v. Dupes, 513 F. 3d 338, 345 (2d Cir. 2008) (“The MVRA makes full restitution \n\n15 mandatory for certain crimes.”). Therefore, it was appropriate for the district court \n\n16 to impose an amended order that required Valente to pay each victim in full, and \n\n\n\n\n 18\n\n1 thus, by correcting the restitution amount during resentencing, the district court \n\n2 did not err. \n\n3 CONCLUSION \n\n4 For the reasons stated above, we VACATE and REMAND in part and \n\n5 AFFIRM in part the district court’s amended judgment. \n\n6 \n\n\n\n\n 19\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Appellee, v. Scott VALENTE, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17-2311-cr\\nUnited States v. Valente\\n\\n\\n\\n 17‐2311‐cr\\n United States v. Valente \\n\\n 1 In the\\n 2 United States Court of Appeals\\n 3 For the Second Circuit\\n 4\\n 5\\n 6 August Term, 2018 \\n 7 No. 17‐2311‐cr \\n 8\\n 9 UNITED STATES OF AMERICA, \\n 10 Appellee, \\n 11\\n 12 v. \\n 13\\n 14 SCOTT VALENTE, \\n 15 Defendant‐Appellant. \\n 16\\n 17\\n 18\\n 19 Appeal from the United States District Court \\n 20 for the Northern District of New York \\n 21 No. 1:15‐cr‐00124‐GLS‐1 \\n 22\\n 23\\n 24 ARGUED: NOVEMBER 1, 2018 \\n 25 DECIDED: FEBRUARY 15, 2019 \\n 26\\n 27\\n 28 Before: RAGGI, LYNCH and DRONEY, Circuit Judges. \\n 29\\n 30\\n 31 Appeal from an amended judgment of conviction of the United States \\n\\n 1\\n\\n 1 District Court for the Northern District of New York entered on July 21, 2017 \\n 2 (Sharpe, J.). The defendant contends that his sentence was procedurally and \\n 3 substantively unreasonable and that the district court lacked authority to impose \\n 4 the amended restitution order that it imposed on resentencing. We VACATE in \\n 5 part the district court’s sentence of incarceration as procedurally unreasonable \\n 6 because of an incorrect criminal history finding and REMAND on that issue, but \\n 7 we AFFIRM the district court’s imposition of the amended restitution order. \\n 8 \\n 9 Judge Lynch, Circuit Judge, concurs in a separate opinion. \\n10 \\n11 \\n12 STEVEN D. CLYMER (Richard D. Belliss, Assistant \\n13 United States Attorneys, on the brief), for Grant C. \\n14 Jaquith, United States Attorney for the Northern \\n15 District of New York, Syracuse, NY, for Appellee. \\n16 \\n17 MOLLY CORBETT (James P. Egan, on the brief), for \\n18 Lisa A. Peebles, Federal Public Defender for the \\n19 Northern District of New York, Albany, NY, for \\n20 Appellant. \\n21 \\n22 DRONEY, Circuit Judge: \\n\\n23 Scott Valente (“Valente”) appeals from the district court’s amended \\n\\n24 judgment of conviction entered on July 21, 2017. He contends that his sentence was \\n\\n25 procedurally and substantively unreasonable and that the district court lacked \\n\\n26 authority to impose the amended restitution order on resentencing. We vacate a \\n\\n27 portion of the district court’s sentence of incarceration as procedurally \\n\\n\\n\\n 2\\n\\n 1 unreasonable because of an incorrect criminal history finding, but we affirm the \\n\\n 2 amended restitution order. \\n\\n 3 VALENTE’S GUILTY PLEA AND SENTENCE \\n\\n 4 On May 11, 2015, Valente pleaded guilty to a three‐count information \\n\\n 5 charging Securities Fraud in violation of 15 U.S.C. § 78j (Count 1), Mail Fraud in \\n\\n 6 violation of 18 U.S.C. § 1341 (Count 2), and Obstructing and Impeding the Internal \\n\\n 7 Revenue Laws in violation of 26 U.S.C. § 7212(a) (Count 3). On November 20, 2015, \\n\\n 8 the United States District Court for the Northern District of New York (Sharpe, J.) \\n\\n 9 sentenced Valente to 240 months on each of the first two counts, and 36 months on \\n\\n10 Count 3, all to run concurrently, and to three years of supervised release. The \\n\\n11 district court also ordered Valente to pay restitution in the amount of \\n\\n12 $8,200,579.69. Judgment was entered the same day. Valente appealed, and this \\n\\n13 Court remanded to the district court to reconsider the assessment of certain \\n\\n14 criminal history points to Valente’s criminal history score. United States v. Valente, \\n\\n15 688 F. Appʹx 76, 79–80 (2d Cir. 2017) (summary order). On July 20, 2017, the district \\n\\n16 court reconsidered its application of those points, applied them again, and \\n\\n17 resentenced Valente to the same terms of imprisonment and of supervised release \\n\\n\\n 3\\n\\n 1 as it had previously imposed. The district court also, over defense counsel’s \\n\\n 2 objection, increased the prior restitution amount to $8,616,113.39. The amended \\n\\n 3 judgment was entered on July 21, 2017, and a second amended judgment was \\n\\n 4 entered on August 8, 2017.1 \\n\\n 5 THE UNDERLYING FRAUDS \\n\\n 6 This case arises out of frauds that Valente, a former registered investment \\n\\n 7 broker, perpetrated on the clients of The ELIV Group, LLC (“ELIV”), an \\n\\n 8 unregistered investment and consulting group that Valente owned and operated \\n\\n 9 in Albany, New York. Valente established ELIV in 2010 after he was barred in 2009 \\n\\n10 from associating with Financial Industry Regulatory Authority (“FINRA”) \\n\\n11 members, based on findings that he had made unauthorized trades for customers \\n\\n12 and provided false written account information to customers. To establish ELIV \\n\\n13 and open brokerage accounts on its behalf, Valente arranged for his wife to be the \\n\\n14 nominal owner of ELIV, even though she had never been registered as a broker or \\n\\n15 held any type of brokerage license. Valente was ELIV’s de facto owner, as well as \\n\\n\\n\\n\\n 1 The second amended judgment was entered because of a clerical error, and it is not challenged \\n here except for the same reasons as the appeal of the amended judgment. \\n\\n 4\\n\\n 1 its manager and sole employee. \\n\\n 2 Valente recruited investors for ELIV through hotel conferences, seminars, \\n\\n 3 and references from existing clients, and he used investors’ funds to purchase \\n\\n 4 various securities. Valente represented that, in exchange for managing these \\n\\n 5 investments, he would be charging an annual 1% fee. When soliciting investors, \\n\\n 6 Valente fraudulently stated that ELIV was an accredited investment and \\n\\n 7 consulting firm. Valente also falsely stated on ELIV’s website that ELIV had \\n\\n 8 achieved a five year average annual return of 34.5%, even though it had not been \\n\\n 9 in business for five years and consistently lost money through speculative \\n\\n10 investments. After Valente obtained investments in ELIV, he continued to deceive \\n\\n11 investors by, inter alia, creating and mailing monthly performance statements that \\n\\n12 falsely reported gains in various accounts. \\n\\n13 Valente further deceived potential investors by falsely representing that \\n\\n14 ELIV was an approved custodian for tax‐deferred individual retirement accounts \\n\\n15 (“IRAs”) and that ELIV could open new IRAs and create rollover IRA accounts. In \\n\\n16 reliance on these misrepresentations, approximately forty‐eight of ELIV’s clients \\n\\n17 rolled over IRA or other retirement accounts to the purported ELIV IRAs. As a \\n\\n\\n 5\\n\\n 1 result, these clients lost their tax‐deferred investments and exposed themselves to \\n\\n 2 early withdrawal penalties. In addition, Valente issued to ELIV investors false \\n\\n 3 financial account statements to make it appear as if ELIV was holding the \\n\\n 4 investors’ retirement accounts as legitimate IRA accounts. Some of these altered \\n\\n 5 statements were then sent to the Internal Revenue Service by accountants who \\n\\n 6 believed that they were valid, creating potentially adverse tax implications for \\n\\n 7 investors. \\n\\n 8 Valente also submitted fraudulent information to the Securities and \\n\\n 9 Exchange Commission (“SEC”) after it commenced an investigation of ELIV. \\n\\n10 The SEC moved for a preliminary injunction against Valente and ELIV, \\n\\n11 which the United States District Court for the Southern District of New York \\n\\n12 granted in June 2014, ordering Valente and ELIV to cease operations and freezing \\n\\n13 their assets. The SEC’s analysis of ELIV’s financial records revealed that, between \\n\\n14 November 2010 and June 2014, Valente, through ELIV, had obtained \\n\\n15 approximately $10.5 million from more than 100 investors. The SEC investigation \\n\\n16 revealed that, as of the date of the asset freeze, ELIV had suffered significant losses, \\n\\n17 as ELIV’s investments were worth approximately $4.7 million less than what \\n\\n\\n 6\\n\\n 1 investors had provided in principal. It also revealed that these losses were not \\n\\n 2 attributable solely to poor investment strategy, as Valente had appropriated \\n\\n 3 approximately $2.2 million of the funds invested for personal expenses, which was \\n\\n 4 well in excess of the 1% management fee that he had promised investors. \\n\\n 5 On May 11, 2015, Valente waived indictment and pleaded guilty in the \\n\\n 6 Northern District of New York. He was sentenced on November 20, 2015, and \\n\\n 7 resentenced on July 20, 2017, as mentioned above. This appeal revisits certain \\n\\n 8 criminal history issues discussed in the initial appeal and addresses the amended \\n\\n 9 restitution order. \\n\\n10 APPLICATION OF THE SENTENCING GUIDELINES \\n\\n11 At resentencing, the district court found that Valente’s adjusted offense level \\n\\n12 under the Sentencing Guidelines was 34, that he fell within Criminal History \\n\\n13 Category IV, based on eight criminal history points, and that the Guidelines \\n\\n14 imprisonment range was 210–262 months. \\n\\n15 Valente’s criminal history includes multiple state convictions related to \\n\\n16 driving while intoxicated, including two Driving While Ability Impaired \\n\\n17 (“DWAI”) infractions, a recidivist DWAI misdemeanor, a driving while \\n\\n\\n 7\\n\\n 1 intoxicated misdemeanor, and a misdemeanor for operating a motor vehicle \\n\\n 2 without an ignition interlock device.2 \\n\\n 3 On appeal, Valente first challenges the procedural reasonableness of the \\n\\n 4 district court’s assignment of two particular criminal history points: one for his \\n\\n 5 prior state misdemeanor conviction of failing to use a vehicle with an interlock \\n\\n 6 device, and a second for being a recidivist DWAI offender. Valente had been given \\n\\n 7 a sixty‐day sentence of imprisonment in state court for the latter conviction. We \\n\\n 8 consider the district court’s assignment of each point in turn. \\n\\n 9 Section 4A1.2(c) of the Sentencing Guidelines provides guidance for \\n\\n10 determining whether “prior sentences” are counted in an offender’s criminal \\n\\n11 history score. All felonies are counted. U.S.S.G. § 4A1.2(c). Certain prior \\n\\n12 misdemeanor convictions are not counted if they are listed under § 4A1.2(c)(1) or \\n\\n13 are similar to the listed offenses. But, an unlisted misdemeanor offense is counted \\n\\n14 if it is categorically more serious than a listed offense. United States v. Morales, 239 \\n\\n15 F.3d 113, 118 (2d Cir. 2000). In this context, “categorically more serious” does not \\n\\n\\n\\n\\n Due to his prior DWAI convictions, Valente was required to install an ignition “interlock device” \\n 2 \\n\\n on his motor vehicle to prevent his operation of the vehicle while intoxicated. \\n\\n 8\\n\\n 1 mean that the unlisted offense is “within a category that is more serious than the \\n\\n 2 [l]isted [o]ffenses” based solely on its underlying elements. Id. at 118 n.5. Rather, \\n\\n 3 we “use[] the adverb [‘categorically’] in its ordinary sense to mean ‘without \\n\\n 4 qualification or reservation.’” Id. (quoting Webster’s Third New International \\n\\n 5 Dictionary (1993) (“categorically”)). In determining whether an offense is \\n\\n 6 categorically more serious than a listed offense, \\n\\n 7 the court should use a common sense approach that includes \\n 8 consideration of relevant factors such as (i) a comparison of \\n 9 punishments imposed for the listed and unlisted offenses, (ii) the \\n10 perceived seriousness of the offense as indicated by the level of \\n11 punishment; (iii) the elements of the offense, (iv) the level of \\n12 culpability involved; and (v) the degree to which the commission of \\n13 the offense indicates a likelihood of recurring criminal conduct. \\n\\n14 U.S.S.G. § 4A1.2 cmt. n.12(A).3 The district court may also consider “any other \\n\\n15 factor the court reasonably finds relevant in comparing prior offenses and [l]isted \\n\\n16 [o]ffenses.” United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d Cir. 1999). The \\n\\n17 misdemeanor interlock device offense is not listed in U.S.S.G. § 4A1.2(c)(1). \\n\\n\\n\\n\\n The United States Sentencing Commission adopted this multifactor “common sense approach” \\n 3 \\n\\n when it amended Application Note 12 to U.S.S.G. § 4A1.2 in 2007. U.S. Sentencing Guidelines \\n Manual supp. to app. C at 237 (2007). But our case law required this approach even before that \\n amendment. See Morales, 239 F.3d at 118; United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d \\n Cir. 1999). \\n\\n 9\\n\\n 1 We review a district court’s interpretation of the Sentencing Guidelines de \\n\\n 2 novo, but we examine its factual findings only for clear error. United States v. Potes‐\\n\\n 3 Castillo, 638 F.3d 106, 108–09 (2d Cir. 2011). When reviewing challenged U.S.S.G. § \\n\\n 4 4A1.2(c) rulings, this Court examines de novo the district court’s determinations \\n\\n 5 based on an offender’s prior offense that “punishes only one basic form of \\n\\n 6 conduct,” Morales, 239 F.3d at 117–18, but, where “the inquiry will necessarily \\n\\n 7 focus on the particular conduct of the defendant, we give due deference to a court’s \\n\\n 8 application of the Guidelines to the facts.” United States v. DeJesus‐Concepcion, 607 \\n\\n 9 F.3d 303, 305 (2d Cir. 2010). By extension, we also give due deference to a court’s \\n\\n10 application of the Guidelines to the facts where, as here, the court considers the \\n\\n11 particular conduct of the defendant as to the factors listed in Application Note \\n\\n12 12(A) to U.S.S.G. § 4A1.2. \\n\\n13 Regarding the prior interlock device conviction, the district court \\n\\n14 determined that the conviction, coupled with the criminal history that led to that \\n\\n15 offense, indicated a likelihood of recurring criminal conduct and increased the \\n\\n16 culpability of the defendant. Valente argues, however, that the district court erred \\n\\n17 by not considering the other factors listed in Application Note 12(A) to U.S.S.G. § \\n\\n\\n 10\\n\\n 1 4A1.2, which, he contends, would have led the district court to determine that the \\n\\n 2 offense was not more serious than those listed. We are not persuaded. The \\n\\n 3 Application Note (and the cases applying it) identifies the factors as ones that a \\n\\n 4 district court may consider. See U.S.S.G. § 4A1.2 cmt. n.12(A); see also DeJesus‐\\n\\n 5 Concepcion, 607 F.3d at 305. Accordingly, the district court is not required to \\n\\n 6 explicitly indicate that it considered the other listed factors or assign any one of \\n\\n 7 them particular weight. In any event, the record indicates that the district court \\n\\n 8 considered other factors, see Joint App’x at 286–87; it simply focused on two factors \\n\\n 9 that, in its view, made the prior conviction more serious than the listed offenses. \\n\\n10 Nor did the court err in concluding that, based on the factors that it considered, \\n\\n11 the interlock device conviction merited the assignment of a criminal history point \\n\\n12 under § 4A1.1(c). \\n\\n13 We turn next to Valente’s argument regarding his prior conviction as a \\n\\n14 recidivist DWAI offender. U.S.S.G. § 4A1.1(b) assigns two points to prior \\n\\n15 convictions which result in a “sentence of imprisonment of at least sixty days.” \\n\\n16 The Application Notes to U.S.S.G. § 4A1.2 provide that “[t]o qualify as a sentence \\n\\n17 of imprisonment, the defendant must have actually served a period of \\n\\n\\n 11\\n\\n 1 imprisonment on such sentence.” Id. at § 4A1.2 cmt. n.2. If the defendant did not \\n\\n 2 do so, the Sentencing Guidelines provide for only a one‐point enhancement under \\n\\n 3 U.S.S.G. § 4A1.1(c). Valente argues that the district court erred in adding a second \\n\\n 4 criminal history point for this offense because, although the state sentence that was \\n\\n 5 imposed was for sixty days imprisonment, he had not yet served it because of \\n\\n 6 medical issues. \\n\\n 7 Valente argues that the sentence was essentially suspended. The district \\n\\n 8 court determined that the sentence was not suspended or stayed and that Valente \\n\\n 9 had not been relieved of his obligation to eventually serve the period of \\n\\n10 imprisonment. The district court thus concluded that Valente’s unserved sentence \\n\\n11 satisfied § 4A1.1(b). We disagree because the unambiguous language of the \\n\\n12 Application Note precludes the district court’s conclusion. It states: “the defendant \\n\\n13 must have actually served a period of imprisonment on such sentence.” Id. at § 4A1.2 \\n\\n14 cmt. n.2 (emphasis added). At the time of his resentencing in this case, Valente had \\n\\n15 not yet served that sentence. As such, to assign two points for that DWAI \\n\\n16 conviction was error. \\n\\n17 We recognize that other Circuits have not required strict adherence to the \\n\\n\\n 12\\n\\n 1 text of the Application Note. See, e.g., United States v. Reid, 827 F.3d 797, 803 (8th \\n\\n 2 Cir. 2016) (concluding that Guidelines context compels the conclusion that, for § \\n\\n 3 4A1.1(b) not to be implicated, state must take “affirmative steps” to relieve \\n\\n 4 defendant of obligation to serve prison time); United States v. Rayborn, 957 F.2d 841, \\n\\n 5 844–45 (11th Cir. 1992) (affirming assignment of three additional criminal history \\n\\n 6 points where defendant was free on bond and had not begun serving a prior \\n\\n 7 sentence at the time he committed the instant offense); United States v. Duffy, 29 \\n\\n 8 F.3d 625, 625 (5th Cir. 1994) (per curiam) (affirming assignment of additional \\n\\n 9 criminal history points where defendant had not begun to serve his state \\n\\n10 sentences). However, not only is the language of the Application Note \\n\\n11 unambiguous, but a strict reading of this Note accords with “one of the most basic \\n\\n12 interpretative canons, that [language] should be construed . . . so that no part will \\n\\n13 be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 \\n\\n14 U.S. 303, 314 (2009) (internal quotation marks and citations omitted). Any \\n\\n15 alternative reading ignores the emphasis communicated by the word “actually.” \\n\\n16 In addition, we conclude that the Application Note’s plain meaning provides a \\n\\n17 practicable means for gauging the severity of a prior state conviction and sentence \\n\\n\\n 13\\n\\n 1 because the sentencing methods of states vary significantly, and it is thus, at times, \\n\\n 2 difficult for the district court to assess the severity of sentences imposed by those \\n\\n 3 courts. \\n\\n 4 Because Valente’s prior sentence was not actually served, it was error to \\n\\n 5 assign an additional criminal history point for that sentence.4 \\n\\n 6 In its brief, the Government maintained that even if there were error in \\n\\n 7 assigning the second criminal history point to the recidivist DWAI conviction, it \\n\\n 8 would be harmless because, without that point, Valente would still have had seven \\n\\n 9 criminal history points and fallen within Criminal History Category IV, which \\n\\n10 requires 7, 8, or 9 criminal history points. The error was not harmless, however, \\n\\n11 because Valente should have been assigned only six criminal history points, \\n\\n12 placing him in Criminal History Category III. \\n\\n13 We have concluded that the district court erred in determining that the \\n\\n14 recidivist DWAI conviction merited the assignment of two criminal history points \\n\\n\\n\\n 4 We recognize that there may be cases where the reason that the defendant did not serve his \\n sentence appears to lie outside the heartland of the Application Note. In such cases, the plain \\n language of the Application Note controls the district court’s guidelines calculation, but it does \\n not preclude it from departing or varying from the Guidelines Sentencing Range when the \\n particular facts justify such a departure or nonguidelines sentence.\\n\\n 14\\n\\n 1 under § 4A1.1(b) based on the plain language of Application Note 12 to U.S.S.G. § \\n\\n 2 4A1.2. Accordingly, the DWAI conviction only merits the assignment of one \\n\\n 3 criminal history point under § 4A1.1(c). As the Government conceded at oral \\n\\n 4 argument, however, § 4A.1.1(c) provides that only four criminal history points \\n\\n 5 may be added under that subsection, and the four point maximum has already \\n\\n 6 been met in this case. We held above that Valente’s prior interlock device \\n\\n 7 conviction merited the addition of one point under § 4A1.1(c), and Valente has \\n\\n 8 three other prior convictions for which the district court properly assigned three \\n\\n 9 points under § 4A1.1(c).5 As a result, both of the criminal history points that the \\n\\n10 district court assigned for Valente’s recidivist DWAI conviction must be \\n\\n11 disallowed, and Valente’s criminal convictions should have resulted in only four \\n\\n12 criminal history points rather than six. Because Valente was convicted of the \\n\\n13 current offenses while under criminal sentences for two other convictions, two \\n\\n14 points are added under § 4A1.1(d). His resulting criminal history score is six, \\n\\n15 rather than the eight that the district court used to sentence Valente. \\n\\n\\n\\n 5 Valente challenged the assessment of these three criminal history points in his prior appeal, and \\n we held that the district court did not err in assessing these points. See Valente, 688 F. App’x at 78‐\\n 79. \\n\\n 15\\n\\n 1 Valente thus is in Criminal History Category III, rather than Category IV, \\n\\n 2 pursuant to U.S.S.G. Chapter 5, Part A. His offense level is 34, and his correct \\n\\n 3 Guidelines Range is therefore 188–235 months, rather than 210–262 months. \\n\\n 4 Because that error resulted in a higher Guidelines Range, it is prejudicial, and we \\n\\n 5 remand to the district court for resentencing, applying the correct Guidelines \\n\\n 6 Range.6 \\n\\n 7 THE RESTITUTION ORDER \\n\\n 8 Finally, Valente appeals the district court’s imposition of an amended \\n\\n 9 restitution order. The government originally calculated the total net loss for all \\n\\n10 investors to be $8,200,579.69, and the district court used this calculation when \\n\\n11 imposing the initial restitution order. After Valente filed his notice of appeal for \\n\\n12 his original sentence, the Government realized it had made an error in the loss \\n\\n13 calculation by reducing the loss amount by the total net gain of some investors, \\n\\n14 when that gain was not available to repay the losses to other investors. Thus, the \\n\\n\\n 6 Having remanded on the sentencing issue for procedural error, we need not consider Valente’s \\n other arguments as to sentencing. Valente’s other arguments are that (1) the district court \\n committed procedural error by refusing to consider the prior conduct and prior sentences of \\n similarly situated defendants; (2) the district court committed procedural error by misstating the \\n Guidelines calculations in a court exhibit distributed to the parties during resentencing; and (3) \\n his sentence is substantively unreasonable. \\n\\n 16\\n\\n 1 Government sought to have the restitution order amended to $8,616,113.39. The \\n\\n 2 district court imposed an amended restitution order for this amount during \\n\\n 3 resentencing. Valente argues that the district court did not have authority to \\n\\n 4 amend the restitution order. \\n\\n 5 In general, when we remand to a district court for resentencing, that remand \\n\\n 6 is “for limited, and not de novo sentencing.” United States v. Malki, 718 F.3d 178, 182 \\n\\n 7 (2d Cir. 2013). “When our remand is limited, the mandate rule generally forecloses \\n\\n 8 re‐litigation of issues previously waived by the parties or decided by the appellate \\n\\n 9 court.” Id. However, there is a narrow exception providing that “[a] court’s \\n\\n10 reconsideration of its own earlier decision in a case may . . . be justified in \\n\\n11 compelling circumstances, consisting principally of (1) an intervening change in \\n\\n12 controlling law, (2) new evidence, or (3) the need to correct a clear error of law or \\n\\n13 to prevent manifest injustice.” United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009); \\n\\n14 see also Malki, 718 F.3d at 182 (“The presumption of limited resentencing may be \\n\\n15 overcome if issues ‘became relevant only after the initial appellate review’ or if the \\n\\n16 court is presented with a ‘cogent or compelling reason for resentencing de novo.’”) \\n\\n17 (quoting United States v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010)). \\n\\n\\n 17\\n\\n 1 In United States v. Johnson, we permitted the district court to impose \\n\\n 2 restitution during resentencing on other grounds where the government had not \\n\\n 3 requested restitution in the initial sentencing and the district court had not \\n\\n 4 imposed it. 378 F.3d 230, 244 (2d Cir. 2004). There we found that it was clear legal \\n\\n 5 error to have not imposed restitution pursuant to the Mandatory Victim \\n\\n 6 Restitution Act (“MVRA”), and that imposing a restitution order on resentencing \\n\\n 7 was therefore appropriate. Id. Valente conceded at oral argument that, if we found \\n\\n 8 clear error in the district court’s original restitution order or found a “cogent or \\n\\n 9 compelling reason for resentencing,” the district court did not err in imposing the \\n\\n10 greater amount in the amended order. \\n\\n11 The MVRA required the district court to impose a restitution order \\n\\n12 requiring Valente to repay each victim in the full amount of his losses due to \\n\\n13 Valente’s fraudulent scheme. 18 U.S.C. §§ 3663A(a), (b)(1)(B)(i)(II); see also United \\n\\n14 States v. Dupes, 513 F. 3d 338, 345 (2d Cir. 2008) (“The MVRA makes full restitution \\n\\n15 mandatory for certain crimes.”). Therefore, it was appropriate for the district court \\n\\n16 to impose an amended order that required Valente to pay each victim in full, and \\n\\n\\n\\n\\n 18\\n\\n1 thus, by correcting the restitution amount during resentencing, the district court \\n\\n2 did not err. \\n\\n3 CONCLUSION \\n\\n4 For the reasons stated above, we VACATE and REMAND in part and \\n\\n5 AFFIRM in part the district court’s amended judgment. \\n\\n6 \\n\\n\\n\\n\\n 19\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":497,"cells":{"id":{"kind":"number","value":4591186,"string":"4,591,186"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"U.S. Bank Nat'l Ass'n v. Bank of America N.A."},"decision_date":{"kind":"string","value":"2019-02-15"},"docket_number":{"kind":"string","value":"16-3560-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: 28 LEVAL, LIVINGSTON, and CHIN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"LEVAL, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"16‐3560‐cv \\n U.S. Bank Natʹl Assʹn v. Bank of America N.A. \\n \\t \\t \\n 1 UNITED STATES COURT OF APPEALS \\n 2 FOR THE SECOND CIRCUIT \\n 3 \\n\\n 4 August Term 2017 \\n\\n 5 (Argued: November 8, 2017 Decided: February 15, 2019) \\n\\n 6 Docket No. 16‐3560‐cv \\n 7 \\n\\n 8 U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR (WELLS FARGO \\n 9 BANK, NA), AS TRUSTEE (REGISTERED HOLDERS OF CITIGROUP \\n10 COMMERCIAL MORTGAGE TRUST 2007‐C6, COMMERCIAL MORTGAGE \\n11 PASS‐THROUGH CERTIFICATES, SERIES 2007‐C6), ACTING BY AND \\n12 THROUGH SPECIAL SERVICER CWCAPITAL ASSET MANAGEMENT LLC, \\n13 \\n14 Plaintiff‐Appellant, \\n15 \\n16 v. \\n17 \\n18 BANK OF AMERICA N.A., \\n19 \\n20 Defendant‐Appellee. \\n21 \\n22 \\n\\n23 ON APPEAL FROM THE UNITED STATES DISTRICT COURT \\n24 FOR THE SOUTHERN DISTRICT OF NEW YORK \\n\\n25 \\n26 \\n27 Before: \\n28 LEVAL, LIVINGSTON, and CHIN, Circuit Judges. \\n29 \\n\\n30 Appeal by Plaintiff U.S. Bank National Association from orders of the \\n31 United States District Court for the Southern District of New York (Paul G. \\n\\n 1 Gardephe, J.) denying Plaintiff’s motion to retransfer the suit to the United States \\n 2 District Court for the Southern District of Indiana, where it was instituted, and \\n 3 granting judgment on the pleadings in favor of Defendant Bank of America N.A., \\n 4 by reason of untimeliness under the laws of New York. The district court in \\n 5 Indiana had transferred the case to New York under 28 U.S.C. § 1631 based on its \\n 6 conclusion that the defendant was not subject to personal jurisdiction in Indiana. \\n 7 Although we disagree with that conclusion (and therefore with the propriety of \\n 8 the transfer under § 1631), we affirm the New York district court’s denial of the \\n 9 motion to retransfer to Indiana, treat the original transfer as one made under 28 \\n10 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment that the suit was \\n11 untimely under the laws of New York. The judgment is VACATED and the case \\n12 is REMANDED for further proceedings. \\n\\n13 Judge CHIN concurs in a separate opinion. \\n\\n14 \\n15 \\n16 COLLEEN M. MALLON (Gregory A. Cross, on the brief), \\n17 Venable LLP, Baltimore, Maryland, for Plaintiff‐\\n18 Appellant. \\n19 \\n20 ELIZABETH P. PAPEZ (Luke A. Connelly, Stephanie A. \\n21 Maloney, on the brief), Winston & Strawn LLP, \\n22 Washington, D.C. and New York, New York, for \\n23 Defendant‐Appellee. \\n24 \\n\\n25 LEVAL, Circuit Judge: \\n\\n26 In this suit for breach of contract, Plaintiff U.S. Bank National Association \\n\\n27 appeals from orders of the United States District Court for the Southern District \\n\\n28 of New York (Paul G. Gardephe, J.) denying its motion to retransfer the suit to \\n\\n29 the United States District Court for the Southern District of Indiana, where it was \\n\\n\\n\\n ‐ 2 ‐ \\n \\n\\n 1 instituted, and granting judgment on the pleadings in favor of Defendant Bank of \\n\\n 2 America N.A., by reason of the untimeliness of the suit under New York’s statute \\n\\n 3 of limitations. The district court in Indiana had transferred the case to New York \\n\\n 4 under 28 U.S.C. § 1631, based on its conclusion that the suit could not be brought \\n\\n 5 in Indiana because the Defendant (a nationally chartered bank and citizen of \\n\\n 6 North Carolina) was not subject to personal jurisdiction in Indiana. \\n\\n 7 We disagree with the Indiana district court’s conclusion that the Defendant \\n\\n 8 was not subject to the jurisdiction of the Indiana court, and therefore we \\n\\n 9 necessarily conclude that the Indiana court’s transfer to New York was not \\n\\n10 authorized by § 1631. We nonetheless affirm the New York district court’s denial \\n\\n11 of Plaintiff’s motion to retransfer to Indiana, treat the original transfer as one \\n\\n12 made under 28 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment of \\n\\n13 dismissal rendered on the ground that the suit was untimely under the laws of \\n\\n14 New York. \\n\\n15 \\n\\n16 \\n\\n17 \\n\\n18 \\n\\n\\n\\n ‐ 3 ‐ \\n \\n\\n 1 BACKGROUND \\n\\n 2 I. The Mortgage Loan Purchase Agreement \\n\\n 3 In 2007, Defendant Bank of America’s predecessor, LaSalle Bank N.A.,1 \\n\\n 4 entered into a Mortgage Loan Purchase Agreement (the “MLPA”), for the sale of \\n\\n 5 a portfolio (of approximately 100 commercial mortgage loans) to an entity2 acting \\n\\n 6 for the benefit of an investment trust (the “Trust”), for which Plaintiff U.S. Bank \\n\\n 7 (a nationally chartered bank and citizen of Ohio) serves as Trustee. The MLPA \\n\\n 8 was supplemented by a Pooling and Servicing Agreement (the “PSA”), which \\n\\n 9 provided that the purchaser would deposit the loans into the Trust and assign all \\n\\n10 of its rights under the MLPA to the Trust. \\n\\n11 In the MLPA, the seller made representations and warranties regarding the \\n\\n12 loans. These included Representation No. 8 (set forth in the margin),3 which \\n\\n\\n \\n 1 LaSalle Bank later merged with Defendant Bank of America. \\n\\n 2 Citigroup Commercial Mortgage Securities, Inc. was the purchaser under the MLPA \\n\\n for the benefit of the Trust. \\n 3 “Each related Mortgage is a valid and enforceable first lien on the related Mortgaged \\n\\n Property subject only to . . . [exceptions not relevant here] and the following title \\n exceptions . . . (b) covenants, conditions and restrictions, rights of way, easements and \\n other matters of public record, none of which, individually or in the aggregate, materially \\n and adversely interferes with the current use of the Mortgaged Property or the security intended \\n to be provided by such Mortgage or with the Mortgagorʹs ability to pay its obligations under the \\n Mortgage Loan when they become due or materially and adversely affects the value of the \\n Mortgaged Property . . . .” App. 93. (emphasis added) \\n \\n ‐ 4 ‐ \\n \\n\\n 1 effectively represented the absence of any restrictions that would interfere with \\n\\n 2 the mortgagorʹs ability to pay its obligations under the mortgage loan or would \\n\\n 3 materially and adversely affect the value of the mortgaged property. \\n\\n 4 The MLPA prescribes specific remedies available to the mortgagee in the \\n\\n 5 event of a “Document Defect or a Breach” of a representation. App. 79. Pursuant \\n\\n 6 to Section 3(c), the seller of the loan portfolio (Defendant’s predecessor) \\n\\n 7 undertook a commitment that, upon receipt of notice of a Document Defect or \\n\\n 8 Breach, it would: \\n\\n 9 cure such Document Defect or Breach . . . in all material \\n10 respects, or, if such Document Defect or Breach . . . \\n11 cannot be cured . . . , (i) repurchase the affected \\n12 Mortgage Loan at the applicable Purchase Price . . . , or \\n13 (ii) substitute a Qualified Substitute Mortgage Loan for \\n14 such affected Mortgage Loan . . . . \\n\\n15 App. 79. \\n\\n16 The PSA, in Section 2.03, similarly provides that, after receiving timely \\n\\n17 notice of a Document Defect or Breach, the seller shall: \\n\\n18 (i) cure such Document Defect or Breach, as the case \\n19 may be, in accordance with Section 3 of the applicable \\n20 [MLPA], (ii) repurchase the affected Trust Mortgage \\n21 Loan in accordance with Section 3 of the related \\n22 [MLPA], or (iii) within two (2) years of the Closing \\n\\n\\n\\n\\n ‐ 5 ‐ \\n \\n\\n 1 \\n 2 Date, substitute a Qualified Substitute Mortgage Loan \\n 3 for such affected Trust Mortgage Loan . . . . \\n\\n 4 App. 247. \\n\\n 5 II. The Indiana Loan \\n\\n 6 One of the items in the portfolio sold pursuant to the MLPA, was a $9 \\n\\n 7 million loan (the “Loan”), which is the subject of this litigation, made in 2007 to \\n\\n 8 Womenʹs Physicians Group, LLC. Repayment of the Loan was secured in part by \\n\\n 9 a mortgage on a two‐story commercial building (the “Property”) (then owned by \\n\\n10 the borrower/mortgagor Womenʹs Physicians Group), which was located on a \\n\\n11 hospital campus in Indiana. Womenʹs Physicians Group had purchased the \\n\\n12 Property from Galen Hospital Corporation (the “Hospital”) pursuant to a special \\n\\n13 warranty deed. The deed includes two title exceptions that run with the \\n\\n14 property: (1) a use restriction, which, absent the consent of the Hospital, \\n\\n15 prohibits use of the Property otherwise than as an ambulatory surgery center and \\n\\n16 medical offices, and (2) a right of first refusal in favor of the Hospital for any sale, \\n\\n17 transfer, or assignment. \\n\\n18 In 2012, Women’s Physicians Group lost the major tenant for the Property, \\n\\n19 was unable to secure a new tenant that would use the Property in a manner that \\n\\n20 conformed to the use restriction, and consequently defaulted on the Loan. On \\n ‐ 6 ‐ \\n \\n\\n 1 December 13, 2012, the Trust, which had acquired the Loan pursuant to the \\n\\n 2 MLPA, commenced a foreclosure action in Indiana state court against Womenʹs \\n\\n 3 Physicians Group. The foreclosure court appointed a receiver, who similarly \\n\\n 4 failed to secure either a tenant or a waiver or modification of the deed \\n\\n 5 restrictions. \\n\\n 6 On October 18, 2013, Plaintiff‐Trustee notified Bank of America that it had \\n\\n 7 violated MLPA Representation No. 8 and demanded that Bank of America cure \\n\\n 8 the violation or repurchase the Loan, as provided in the MLPA. Bank of America \\n\\n 9 did not do so. \\n\\n10 III. The Proceedings Below \\n\\n11 On September 12, 2014, Plaintiff, as Trustee, brought this action against \\n\\n12 Bank of America in the Indiana district court, alleging breach of Representation \\n\\n13 No. 8. Bank of America moved to dismiss the suit, or alternatively to transfer it to \\n\\n14 the Southern District of New York, asserting that it was not subject to personal \\n\\n15 jurisdiction in Indiana. The Indiana district court ruled that Bank of America was \\n\\n16 not subject to personal jurisdiction in Indiana. The Indiana district court \\n\\n17 transferred the case to the New York district court pursuant to 28 U.S.C. § 1631, \\n\\n18 which authorizes a federal district court, on the basis of a “want of jurisdiction, . . \\n\\n\\n\\n ‐ 7 ‐ \\n \\n\\n 1 . if it is in the interest of justice, [to] transfer such action . . . to any other such \\n\\n 2 court . . . in which the action . . . could have been brought.”4 It is undisputed that \\n\\n 3 venue and jurisdiction are proper in the Southern District of New York. \\n\\n 4 Following the transfer, Plaintiff moved in the New York district court to \\n\\n 5 retransfer the case to the Indiana district court, arguing that, contrary to the \\n\\n 6 Indiana district court’s ruling, Bank of America was subject to the court’s \\n\\n 7 personal jurisdiction in Indiana on several different bases. The New York district \\n\\n 8 court denied the motion. In the meantime, Bank of America had moved in the \\n\\n 9 New York district court for judgment on the pleadings. The district court \\n\\n10 granted that motion, concluding that Plaintiff’s claim for breach of contract was \\n\\n11 time‐barred under New Yorkʹs six‐year statute of limitations. The court entered \\n\\n12 judgment in favor of Defendant Bank of America on September 22, 2016. This \\n\\n13 appeal followed. \\n\\n\\n\\n \\n 4 28 U.S.C. § 1631 provides for transfers to cure want of jurisdiction, as follows: \\n\\n \\n Whenever a civil action is filed in a court . . . and that court finds that \\n there is a want of jurisdiction, the court shall, if it is in the interest of \\n justice, transfer such action or appeal to any other such court . . . in which \\n the action or appeal could have been brought at the time it was filed or \\n noticed, and the action or appeal shall proceed as if it had been filed in or \\n noticed for the court to which it is transferred on the date upon which it \\n was actually filed in or noticed for the court from which it is transferred. \\n ‐ 8 ‐ \\n \\n\\n 1 DISCUSSION \\n\\n 2 Plaintiff raises a number of arguments on appeal, including that the \\n\\n 3 Indiana district court erred in finding that Bank of America was not subject to its \\n\\n 4 jurisdiction, that the New York district court erred in refusing to retransfer the \\n\\n 5 case to Indiana, and that the New York district court accordingly should not \\n\\n 6 have entered judgment in favor of Defendant. We address these issues in turn. \\n\\n\\n 7 I. Was Defendant Subject to the Personal Jurisdiction of the Indiana District \\n\\n 8 Court? \\n\\n 9 Plaintiff contends that, contrary to the Indiana district court’s ruling, Bank \\n\\n10 of America was subject to personal jurisdiction in Indiana, both on the basis of \\n\\n11 general jurisdiction (because of either its waiver or its extensive activities in \\n\\n12 Indiana) and specific jurisdiction (because of the contractual representations it \\n\\n13 undertook concerning real property in Indiana and the commitments it \\n\\n14 undertook in the terms of the MLPA to perform acts in Indiana). We are \\n\\n15 persuaded that Bank of America made itself subject to Indiana personal \\n\\n16 jurisdiction in this case. Accordingly, we have no need to consider Plaintiff’s less \\n\\n17 persuasive arguments that Bank of America was also subject to general Indiana \\n\\n18 jurisdiction. \\n\\n\\n ‐ 9 ‐ \\n \\n\\n 1 To determine personal jurisdiction, a federal district court applies the long‐\\n\\n 2 arm statute of the state in which it sits. See Chloé v. Queen Bee of Beverly Hills, LLC, \\n\\n 3 616 F.3d 158, 163 (2d Cir. 2010). Indianaʹs long‐arm statute authorizes courts to \\n\\n 4 exercise jurisdiction on any basis permitted by the U.S. Constitution. Advanced \\n\\n 5 Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. \\n\\n 6 2014) (“Under Indianaʹs long‐arm statute, Indiana state courts may exercise \\n\\n 7 personal jurisdiction on a number of prescribed bases, as well as ‘on any basis \\n\\n 8 not inconsistent with the Constitution of this state or the United States.’”) \\n\\n 9 (quoting Ind. R. Trial P. 4.4(A)). To comport with due process, a forum state \\n\\n10 may exercise jurisdiction over an out‐of‐state corporate defendant only if the \\n\\n11 defendant has ʺcertain minimum contacts with [the State] such that the \\n\\n12 maintenance of the suit does not offend ʹtraditional notions of fair play and \\n\\n13 substantial justice.ʹʺ Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, \\n\\n14 923 (2011) (alteration in original) (quoting Intʹl Shoe Co. v. Washington, 326 U.S. \\n\\n15 310, 316 (1945)). Specific jurisdiction over an out‐of‐state defendant “is available \\n\\n16 when the cause of action sued upon arises out of the defendantʹs activities in a \\n\\n17 state.ʺ Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016). \\n\\n\\n\\n\\n ‐ 10 ‐ \\n \\n\\n 1 When deciding whether personal jurisdiction over a defendant exists in a \\n\\n 2 district court that falls outside this Circuit, we need not predict how our sister \\n\\n 3 circuit would decide the question, ʺsince we are at liberty to decide for ourselves \\n\\n 4 what the Due Process Clause requires to sustain personal jurisdiction.ʺ Chew v. \\n\\n 5 Dietrich, 143 F.3d 24, 30 (2d Cir. 1998); see also SongByrd, Inc. v. Estate of Grossman, \\n\\n 6 206 F.3d 172, 180‐81 (2d Cir. 2000) (applying this circuitʹs case law to decide \\n\\n 7 whether Louisiana could exercise personal jurisdiction over a defendant). \\n\\n 8 Although we consider the decisions of our sister circuits, ʺwe are permitted ‐‐ \\n\\n 9 indeed, required ‐‐ to reach our own conclusionsʺ on issues of federal law. \\n\\n10 Desiano v. Warner‐Lambert & Co., 467 F.3d 85, 90 (2d Cir. 2006); see also Rates Tech. \\n\\n11 Inc. v. Speakeasy, Inc., 685 F.3d 163, 173‐74 (2d Cir. 2012) (ʺ[O]ur court is not \\n\\n12 bound by the holdings ‐‐ much less the dicta ‐‐ of other federal courts of \\n\\n13 appeal.ʺ). But we ʺdefer conclusivelyʺ to another circuitʹs decision when it \\n\\n14 addresses a question of state law from a state within that circuit. Desiano, 467 \\n\\n15 F.3d at 90. \\n\\n16 1. Applicable Law of Specific Personal Jurisdiction \\n\\n17 The Supreme Court has set out three conditions for the exercise of specific \\n\\n18 jurisdiction over a nonresident defendant. See Bristol‐Myers Squibb Co. v. Superior \\n\\n\\n\\n ‐ 11 ‐ \\n \\n\\n 1 Court of California, San Francisco Cty., 137 S. Ct. 1773, 1785‐86 (2017). “First, the \\n\\n 2 defendant must have purposefully availed itself of the privilege of conducting \\n\\n 3 activities within the forum State or have purposefully directed its conduct into \\n\\n 4 the forum State.” Id. at 1785 (quoting J. McIntyre Machinery, Ltd. v. Nicastro, 564 \\n\\n 5 U.S. 873, 877 (2011) (plurality opinion)). “Second, the plaintiff’s claim must arise \\n\\n 6 out of or relate to the defendant’s forum conduct.” Id. at 1786 (quoting \\n\\n 7 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). “Finally, \\n\\n 8 the exercise of jurisdiction must be reasonable under the circumstances.” Id. \\n\\n 9 (citing Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, \\n\\n10 113‐114 (1987)). \\n\\n11 At the first step, the minimum contacts inquiry is “satisfied if the \\n\\n12 defendant has ‘purposefully directed’ his activities at residents of the forum.” \\n\\n13 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v. Hustler \\n\\n14 Magazine, Inc., 465 U.S. 770, 774 (1984)); see also Charles Schwab Corp. v. Bank of Am. \\n\\n15 Corp., 883 F.3d 68, 82 (2d Cir. 2018) (ʺ[M]inimum contacts . . . exist where the \\n\\n16 defendant purposefully availed itself of the privilege of doing business in the \\n\\n17 forum and could foresee being haled into court there.ʺ). \\n\\n\\n\\n\\n ‐ 12 ‐ \\n \\n\\n 1 To meet the minimum contacts requirement, ʺthe defendantʹs suit‐related \\n\\n 2 conduct must create a substantial connection with the forum Stateʺ ‐‐ that is, the \\n\\n 3 ʺdefendant [it]selfʺ must create those contacts, and those contacts must be with \\n\\n 4 the ʺforum State itself,ʺ not simply with persons who reside there. Walden v. \\n\\n 5 Fiore, 134 S. Ct. 1115, 1121‐22 (2014) (citation omitted). Thus, although a \\n\\n 6 defendantʹs contacts with the forum state may be ʺintertwined with [its] \\n\\n 7 transactions or interactions with the plaintiff or other parties . . .[,] a defendantʹs \\n\\n 8 relationship with a . . . third party, standing alone, is an insufficient basis for \\n\\n 9 jurisdiction.ʺ Id. at 1123; see also Bristol‐Myers Squibb, 137 S. Ct. at 1783 (2017) \\n\\n10 (same). It is “insufficient to rely on a defendantʹs random, fortuitous, or \\n\\n11 attenuated contacts or on the unilateral activity of a plaintiff with the forum to \\n\\n12 establish specific jurisdiction.” Waldman v. Palestine Liberation Org., 835 F.3d 317, \\n\\n13 337 (2d Cir. 2016) (quoting Walden, 134 S. Ct. at 1123) (internal quotation marks \\n\\n14 omitted). \\n\\n15 Nor is it sufficient for a plaintiff to show simply that a defendantʹs actions \\n\\n16 caused an ʺeffectʺ in the forum state where the defendant has not ʺexpressly \\n\\n17 aimed its conduct at the forum.ʺ Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, \\n\\n18 732 F.3d 161, 173 (2d Cir. 2013). And “mere injury to a forum resident” is \\n\\n\\n\\n ‐ 13 ‐ \\n \\n\\n 1 insufficient. Walden, 134 S. Ct. at 1125; see also SongByrd, 206 F.3d at 181 (rejecting \\n\\n 2 specific personal jurisdiction over a defendant even if defendant’s action could \\n\\n 3 be viewed as a “but for” cause of relevant events in forum state); accord Noboa v. \\n\\n 4 Barceló Corporación Empresarial, SA, 812 F.3d 571, 572 (7th Cir. 2016) (“[T]he \\n\\n 5 pertinent question is whether the defendant has links to the jurisdiction in which \\n\\n 6 the suit was filed, not whether the plaintiff has such links ‐‐ or whether the loss \\n\\n 7 flowed through a causal chain from the plaintiffʹs contacts with the jurisdiction of \\n\\n 8 suit.ʺ). Similarly, “the fact that harm in the forum is foreseeable . . . is insufficient \\n\\n 9 for the purpose of establishing specific personal jurisdiction over a defendant.” \\n\\n10 In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 674 (2d Cir. 2013). \\n\\n11 Where the underlying dispute involves a contract, we use a ʺhighly \\n\\n12 realisticʺ approach and evaluate factors such as “prior negotiations and \\n\\n13 contemplated future consequences, along with the terms of the contract and the \\n\\n14 partiesʹ actual course of dealing.” Burger King, 471 U.S. at 479. \\n\\n15 At the second step, we must be satisfied that “the litigation results from \\n\\n16 alleged injuries that ‘arise out of or relate to’ those activities.” Id. at 472 (quoting \\n\\n17 Helicopteros, 466 U.S. at 414). We have found that a claim arises out of forum \\n\\n18 contacts when defendant’s allegedly culpable conduct involves at least in part \\n\\n\\n\\n ‐ 14 ‐ \\n \\n\\n 1 financial transactions that touch the forum. Licci, 732 F.3d at 169‐70. And finally, \\n\\n 2 for the third step, once it is established that the defendant has minimum contacts \\n\\n 3 with the forum and the cause of action relates to or arises from those contacts, “a \\n\\n 4 court considers those contacts ʹin light of other factors to determine whether the \\n\\n 5 assertion of personal jurisdiction would comport with fair play and substantial \\n\\n 6 justice.ʹʺ Charles Schwab, 883 F.3d at 82 (quoting Licci, 732 F.3d at 170).5 \\n\\n 7 2. Application \\n\\n 8 We conclude that Plaintiff met the requirements summarized above for \\n\\n 9 establishing specific Indiana jurisdiction over Defendant in this case. The central \\n\\n10 tenets of Plaintiff’s theory of liability are that (i) Defendant breached \\n\\n11 Representation No. 8 of the MLPA that there were no restrictions on the use of \\n\\n12 the Indiana Property that would interfere with the mortgagor’s ability to make \\n\\n13 its payments or adversely affect the value of the Property and (ii) Defendant \\n\\n14 failed to comply with its contractual commitment to cure the breach. The \\n\\n\\n \\n 5 Under the reasonableness inquiry, we evaluate the following factors: (1) the \\n burden on the defendant, (2) the interests of the forum state, (3) the plaintiffʹs interest in \\n obtaining relief, (4) the ʺinterstate judicial systemʹs interest in obtaining the most \\n efficient resolution of controversies,ʺ and (5) ʺthe shared interests of the several States in \\n furthering fundamental substantive social policies.ʺ Asahi, 480 U.S. at 113 (citations \\n omitted). Although we consider a variety of factors, ʺthe ʹprimary concernʹ is ʹthe \\n burden on the defendant.ʹʺ Bristol‐Myers Squibb, 137 S. Ct. at 1780 (quoting World‐Wide \\n Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). \\n ‐ 15 ‐ \\n \\n\\n 1 restrictions imposed by the Hospital included the clause forbidding use of the \\n\\n 2 Property except for in a specified manner (which allegedly prevented the \\n\\n 3 mortgagor from obtaining a new tenant and thus caused it to default on payment \\n\\n 4 of the Loan), as well as the right of first refusal in favor of the Hospital (which \\n\\n 5 allegedly interfered with the mortgagor’s ability to pay the Loan and adversely \\n\\n 6 affected the value of the Property). Plaintiff alleges that Bank of America then \\n\\n 7 breached its commitments under Section 3(c) of the MLPA to either “cure such . . \\n\\n 8 . Breach . . . or, if such . . . Breach . . . cannot be cured, [to] (i) repurchase the \\n\\n 9 affected Mortgage Loan at the applicable Purchase Price . . . or (ii) substitute a \\n\\n10 Qualified Substitute Mortgage Loan for such affected Mortgage Loan . ” App. At \\n\\n11 79. Bank of America’s obligation to “cure” the breach, according to Plaintiff’s \\n\\n12 theory, required it, among other possibilities, to perform some act in Indiana \\n\\n13 such as obtaining the Indiana Hospital’s consent to relinquish the deed \\n\\n14 restrictions that prevented the mortgagor from meeting its Loan obligations. \\n\\n15 Defendant’s alleged breach of its contractual representations involved the \\n\\n16 existence of restrictions on the use and value of Indiana Property. In addition, the \\n\\n17 obligations expressly undertaken by Defendant under the MLPA were \\n\\n18 purposefully directed toward residents of Indiana, and the suit arose from and \\n\\n\\n\\n ‐ 16 ‐ \\n \\n\\n 1 related directly to those Indiana contacts. In view of Defendant’s undertaking of \\n\\n 2 those commitments in the terms of the contract here in question, we see no \\n\\n 3 reason why obliging Defendant to litigate this claim in Indiana would offend \\n\\n 4 traditional notions of fair play or substantial justice, or be unreasonable. \\n\\n 5 II. Was the New York District Court Correct to Deny Plaintiff’s Motion to \\n\\n 6 Retransfer? \\n\\n 7 Plaintiff contends that if, as we have concluded, Bank of America was \\n\\n 8 subject to personal jurisdiction in the Indiana court, the Indiana court could not \\n\\n 9 lawfully transfer the venue of the action to New York under § 1631, because that \\n\\n10 statute authorizes transfer only for “want of jurisdiction.” Plaintiff contends \\n\\n11 accordingly that the New York district court should have granted its motion to \\n\\n12 send the case back to Indiana and that we should direct that this be done. We \\n\\n13 disagree. \\n\\n14 Such a ruling would fail to heed the Supreme Court’s sagacious warning in \\n\\n15 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988). Confronting a \\n\\n16 similar circumstance, the Court cautioned, ʺ[T]ransferee courts that feel entirely \\n\\n17 free to revisit transfer decisions of a coordinate court threaten to send litigants \\n\\n18 into a vicious circle of litigation,ʺ culminating in a ʺperpetual game of \\n\\n\\n\\n ‐ 17 ‐ \\n \\n\\n 1 jurisdictional ping‐pong.ʺ Id. at 816, 818. Although Christianson differed slightly \\n\\n 2 in that the potentially dueling transfer orders were entered by coordinate courts of \\n\\n 3 appeals, as opposed to a court of appeals reviewing of a transfer order of a district \\n\\n 4 court in another circuit, that distinction does not lessen the pertinence or \\n\\n 5 importance of the Supreme Court’s observation. \\n\\n 6 If we were to direct that the case be retransferred to Indiana, eventual \\n\\n 7 review by the Seventh Circuit might well result in a ruling that that circuit, and \\n\\n 8 not ours, is authoritative on the reach of jurisdiction of the Indiana courts, a \\n\\n 9 reaffirmance of the Indiana district court’s original ruling that Bank of America is \\n\\n10 not subject to personal jurisdiction in Indiana, and a reinstitution of the original \\n\\n11 transfer to the district court in New York. Whether and where it would end \\n\\n12 could not be predicted. Such a scenario would be intolerable. Regardless of \\n\\n13 which court is correct in its appraisal of the jurisdiction question, such a duel \\n\\n14 between courts of transfers and retransfers would subject the parties to \\n\\n15 unacceptably mounting expenses and delays. If such occurs, the federal court \\n\\n16 system abjectly fails to perform its mission of deciding cases with reasonable \\n\\n17 speed and efficiency at reasonable cost to the parties. \\n\\n\\n\\n\\n ‐ 18 ‐ \\n \\n\\n 1 The New York district court was sensitive to the Supreme Court’s warning \\n\\n 2 in rejecting Plaintiff’s motion for retransfer to Indiana. Citing Christianson, it \\n\\n 3 ruled that it would treat the Indiana court’s transfer of venue as the law of the \\n\\n 4 case. It reviewed the Indiana court’s decision with respect to the absence of \\n\\n 5 personal jurisdiction over Defendant in Indiana to the extent of ruling that it \\n\\n 6 found no clear error in that ruling, and thus denied the motion. While we are not \\n\\n 7 in complete agreement with the New York district court’s ruling (as explained \\n\\n 8 below) we entirely approve of its rejection of the motion to retransfer to Indiana. \\n\\n 9 Arguably, the standard for this court’s review of a transfer order of a \\n\\n10 district court in a different circuit differs from the standard to be exercised by the \\n\\n11 transferee district court. As we noted in SongByrd, 206 F.3d at 178 n.7, it would \\n\\n12 be rare for the doctrine of the law of the case to commit a higher court to adhere \\n\\n13 to a ruling of a lower court. Nonetheless, as noted above, for this court to require \\n\\n14 retransfer to the Indiana district court based on our conclusion that the Indiana \\n\\n15 court erred would give rise to the same unacceptable use of the parties as a ping‐\\n\\n16 pong ball as if the retransfer order were made by the transferee district court. \\n\\n17 Plaintiff has not shown that litigating in New York would subject it to any great \\n\\n18 inconvenience or unfairness. Allowing the case to remain in the Southern District \\n\\n\\n\\n ‐ 19 ‐ \\n \\n\\n 1 of New York, notwithstanding that the Indiana court’s transfer order was based \\n\\n 2 on a mistake of law, is a far lesser evil than subjecting the parties to the further \\n\\n 3 expense and delay of a retransfer, with the attendant risk of still further rounds \\n\\n 4 of transfers. \\n\\n 5 Because the transfer of venue was not available under § 1631, which \\n\\n 6 authorizes transfers only for want of jurisdiction, we think it is our best course to \\n\\n 7 treat the erroneous § 1631 transfer as a transfer under 28 U.S.C. § 1404(a) “[f]or \\n\\n 8 the convenience of [the] parties and witnesses, in the interest of justice.”6 The \\n\\n 9 interest of justice and the convenience of the parties are served by a transfer \\n\\n10 under § 1404(a) in that it spares the parties from the intolerable expenses, delays, \\n\\n11 and attendant burdens that would result from having the case batted back and \\n\\n\\n\\n\\n \\n 6 “For the convenience of parties and witnesses, in the interest of justice, a district court \\n\\n may transfer any civil action to any other district or division where it might have been \\n brought or to any district or division to which all parties have consented.” 28 U.S.C. \\n § 1404(a). While the Indiana district court expressly relied on § 1631 as authority for the \\n transfer, see U.S. Bank Nat’l Ass’n v. Bank of America N.A., No. 1:14‐cv‐01492, 2015 WL \\n 5971126, at *10 (S.D. Ind. Oct. 14, 2015) (“[T]he Court concludes that it does not have \\n personal jurisdiction over Bank of America. As a result, the Court TRANSFERS this \\n case to the Southern District of New York, pursuant to 28 U.S.C. § 1631.”), the court also \\n observed, although making no findings relating to the convenience of the parties and \\n witnesses or the interest of justice, that transfer would also be appropriate under \\n § 1404(a). Id. \\n ‐ 20 ‐ \\n \\n\\n 1 forth from district to district, and that it positions a court to fulfill the mission of \\n\\n 2 the judicial system by deciding the case. \\n\\n 3 The New York district court denied the Plaintiff’s motion to retransfer on \\n\\n 4 the ground that the Indiana court’s transfer under § 1631 for want of jurisdiction \\n\\n 5 was not clearly erroneous. We see the issue somewhat differently. To say that the \\n\\n 6 Indiana court’s transfer order was not clearly erroneous does not say it was not \\n\\n 7 erroneous. Because Bank of America was subject to personal jurisdiction in the \\n\\n 8 Indiana court, that court’s transfer of venue under § 1631 was not in accordance \\n\\n 9 with law. Nonetheless, transfer of venue to the Southern District of New York \\n\\n10 would have been appropriate under § 1404(a). Giving regard to Plaintiff’s failure \\n\\n11 to show that it would suffer great harm in being compelled to litigate its case in \\n\\n12 New York instead of in the forum it chose, the unjust burdens that the courts \\n\\n13 would inflict on the parties by shuttling them back and forth between Indiana \\n\\n14 and New York, and the Supreme Court’s warnings in Christianson, we find it \\n\\n15 preferable to affirm the New York district court’s denial of retransfer on a \\n\\n16 different basis than that court relied on. Accordingly, we affirm the New York \\n\\n17 district court’s denial of Plaintiff’s motion for retransfer to Indiana, treating the \\n\\n\\n\\n\\n ‐ 21 ‐ \\n \\n\\n 1 Indiana transfer order as if issued under § 1404(a) and finding such a transfer to \\n\\n 2 be lawful. \\n\\n 3 III. Did the New York District Court Err in Granting Defendant’s Motion for \\n\\n 4 Judgment on the Pleadings under Rule 12(c)? \\n\\n 5 In denying Plaintiff’s motion to retransfer to Indiana, the New York \\n\\n 6 district court treated the Indiana court’s transfer order as lawful and efficacious \\n\\n 7 not only as a transfer of venue to New York, but also as a determination that \\n\\n 8 Bank of America was not subject to personal jurisdiction in the Indiana court and \\n\\n 9 that the case would accordingly be decided under the laws of New York, the \\n\\n10 transferee state. The court explained, “If a district court receives a case pursuant \\n\\n11 to a transfer under . . . 28 U.S.C. § 1631, for want of jurisdiction, it logically \\n\\n12 applies the law of the state in which it sits, since the original venue, with its \\n\\n13 governing laws, was never a proper option.” U.S. Bank Nat’l Ass’n v. Bank of \\n\\n14 America N.A., No. 15 Civ. 8153, 2016 WL 5118298, at *12 (S.D.N.Y. Sept. 20, 2016) \\n\\n15 (quoting Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010)). While we agree with \\n\\n16 that proposition, we find it has no application to this case because, in our view, \\n\\n17 Bank of America was subject to personal jurisdiction in the Indiana district court, \\n\\n18 and the original venue, with its governing laws, was a proper option. While we \\n\\n\\n\\n ‐ 22 ‐ \\n \\n\\n 1 affirm the New York district court’s denial of Plaintiff’s motion to retransfer to \\n\\n 2 Indiana, we do not affirm the propriety of the original transfer for want of \\n\\n 3 jurisdiction under § 1631. We instead affirm the transfer as if made under § 1404(a) \\n\\n 4 by a court that had jurisdiction of the case. \\n\\n 5 A transfer under § 1404(a) by a court that has jurisdiction of the case has \\n\\n 6 different consequences from a transfer under § 1631 by a court that lacks \\n\\n 7 jurisdiction of the case. Transfers under § 1404(a) by a court that has jurisdiction \\n\\n 8 are adjudicated in the transferee state under the law of the transferor state. This \\n\\n 9 is to avoid the unfairness of having a discretionary transfer done for convenience \\n\\n10 change the law under which the case will be decided. See Van Dusen v. Barrack, \\n\\n11 376 U.S. 612, 633‐34 (1964); 17 Moore’s Federal Practice § 111.20[1][b] (3d ed. \\n\\n12 2018) (“[W]hen a case is transferred under Section 1404(a), Van Dusen requires \\n\\n13 the same choice of law analysis that would have been applied in the transferor \\n\\n14 court to be conducted in the transferee court, which may require the transferee \\n\\n15 court to apply its own law, the law of the transferor court, or some other state’s \\n\\n16 law.”). \\n\\n17 Under the New York district court’s analysis, Indiana’s 10‐year statute of \\n\\n18 limitations and its choice of law rules had no pertinence because the case was \\n\\n\\n\\n ‐ 23 ‐ \\n \\n\\n 1 never properly lodged in the Indiana court. The transfer under § 1631 to New \\n\\n 2 York mandated the application of New York’s six‐year statute of limitations, \\n\\n 3 under which the suit was untimely. Our disposition requires that the New York \\n\\n 4 district court treat the case as one properly filed in Indiana, applying Indiana’s \\n\\n 5 choice of law rules to determine whether the suit was timely filed. We therefore \\n\\n 6 vacate the New York district court’s grant of Bank of America’s motion for \\n\\n 7 judgment on the pleadings. We express no view on the question whether the suit \\n\\n 8 was timely filed, when that question is judged under Indiana’s choice‐of‐law \\n\\n 9 rules, as appropriate for a suit properly brought in Indiana and subsequently \\n\\n10 transferred to New York under § 1404(a). \\n\\n11 IV. Response to Judge Chin’s Concurrence\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368439/\", \"author_raw\": \"LEVAL, Circuit Judge:\"}, {\"author\": \"12 Judge Chin’s concurring\", \"type\": \"concurrence\", \"text\": \"12 Judge Chin’s concurring opinion expresses doubt whether Bank of America, \\n\\n13 as the successor entity following its merger with LaSalle, is subject to personal \\n\\n14 jurisdiction where LaSalle’s activities in relation to the events giving rise to liability \\n\\n15 would have subjected LaSalle to specific jurisdiction in a suit alleging breach of \\n\\n16 LaSalle’s contracts. Our first answer is that this issue is not in the case, having been \\n\\n17 forfeited, and/or waived, by Bank of America. See United States v. Quiroz, 22 F.3d \\n\\n18 489, 490‐91 (2d Cir. 1994) (argument not raised on appeal is deemed abandoned, \\n\\n\\n\\n ‐ 24 ‐ \\n \\n\\n 1 unless manifest injustice otherwise would result); see also Fed. R. Civ. P. 12(h)(1) \\n\\n 2 (“A party waives a[] defense [of lack of personal jurisdiction] by . . . failing to \\n\\n 3 either: (i) make it by motion . . . or (ii) include it in a responsive pleading . . . .”). \\n\\n 4 Bank of America has not argued in this appeal that it is not subject to personal \\n\\n 5 jurisdiction in Indiana for that reason. Indeed, so far as we are aware, Bank of \\n\\n 6 America has never raised that argument in this litigation, notwithstanding its \\n\\n 7 persistent objection, based on other grounds, to personal jurisdiction in Indiana. \\n\\n 8 Its argument has been that it is not subject to Indiana jurisdiction because LaSalle, \\n\\n 9 in negotiating and entering the contract in New York, did not subject itself to \\n\\n10 Indiana jurisdiction. In fact, in framing its arguments against Indiana jurisdiction, \\n\\n11 Bank of America has repeatedly acknowledged that LaSalle’s actions in \\n\\n12 negotiating, drafting, and entering into the MLPA are imputed to Bank of America \\n\\n13 for the purpose of analyzing where Bank of America is subject to personal \\n\\n14 jurisdiction, effectively conceding that if LaSalle’s actions would make it subject to \\n\\n15 personal jurisdiction in Indiana, Bank of America is also subject. See, e.g., Br. of \\n\\n16 Def.‐Appellee at 33; Def.’s Memo. Opp. Pl.’s Mot. Retransfer (App. 2772‐73); Def.’s \\n\\n17 Reply Memo. Supp. Mot. Transfer (App. 2191); Def.’s Memo. Supp. Mot. Transfer \\n\\n18 (App. 46); see also Def.’s Memo. Opp. Pl.’s Mot. Retransfer (App. at 2784) \\n\\n\\n\\n ‐ 25 ‐ \\n \\n\\n 1 (recognizing that “[t]he Transferor Court correctly focused its analysis on [Bank of \\n\\n 2 America’s] (and LaSalle’s) activities with respect to the MLPA and PSA” in \\n\\n 3 determining whether it had specific jurisdiction over Bank of America) (emphasis \\n\\n 4 added). \\n\\n 5 Because the issue is forfeited, we do not rule on it. We nonetheless observe \\n\\n 6 that we can see no reason why, in a suit to enforce a merger partner’s contract, the \\n\\n 7 entity that survives the merger should not be subject to personal jurisdiction in \\n\\n 8 whatever court the actions of the merger partner in relation to the contract would \\n\\n 9 have made the merger partner subject. Upon a merger between two (or more) \\n\\n10 corporations, each of the merger partners is deemed to survive in the merged \\n\\n11 entity, and the surviving entity is therefore liable for the liabilities of the \\n\\n12 corporations that joined in the merger. According to James D. Cox & Thomas Lee \\n\\n13 Hazen, 4 Treatise of the Law of Corporations § 22:8, “A distinguishing feature of \\n\\n14 a business combination carried out as a merger or consolidation is that by \\n\\n15 operation of law the surviving corporation is subject to all the liabilities of the \\n\\n16 acquired companies.” “In contrast,” the treatise explains, “when the combination \\n\\n17 is structured as an asset or stock purchase‐sale, absent special circumstances, the \\n\\n18 acquiring company is subject only to those liabilities it has agreed to assume.” Id. \\n\\n\\n\\n ‐ 26 ‐ \\n \\n\\n 1 Because a successor by merger is deemed by operation of law to be both the \\n\\n 2 surviving corporation and the absorbed corporation, subject to all the liabilities of \\n\\n 3 the absorbed corporation, we see no reason to doubt that Bank of America, as the \\n\\n 4 surviving entity, would be subject to jurisdiction in Indiana in a suit based on \\n\\n 5 breach of LaSalle’s contract if LaSalle’s Indiana‐directed actions in relation to the \\n\\n 6 contract would have made Lasalle subject to Indiana jurisdiction. (In contrast, the \\n\\n 7 theory of general jurisdiction would allow the suit against the successor by merger \\n\\n 8 only in those jurisdictions where the defendant corporation at the time of filing is \\n\\n 9 “essentially at home,” see Daimler AG v. Bauman , 517 U.S. 117, 122 (2014) and not \\n\\n10 in places where, prior to the merger, the absorbed merger partner was at home.) \\n\\n11 Furthermore, if the rule were as Judge Chin suggests, the rule would be \\n\\n12 subject to serious abuse: a corporation liable to suit in a state in which it does not \\n\\n13 wish to be sued could simply arrange a merger with a dummy corporation and \\n\\n14 thus avoid being subject to an undesired jurisdiction in the state where its actions \\n\\n15 incurred the liability. \\n\\n16 We think Judge Chin has misread the New York precedent he cites. He relies \\n\\n17 on a short passage from BRG Corp. v. Chevron U.S.A., Inc., 82 N.Y.S.3d 798, 799 \\n\\n18 (N.Y. App. Div. 2018), which quotes from and adopts the rule stated in Semenetz \\n\\n\\n\\n ‐ 27 ‐ \\n \\n\\n 1 v. Sherling v. Walden Inc., 801 N.Y.S.2d 78 (N.Y. App. Div. 2005), aff’d on other \\n\\n 2 grounds 851 N.E.2d 1170 (N.Y. 2006). The line of authority Judge Chin cites does \\n\\n 3 not apply to successor liability that results from a merger. \\n\\n 4 What those New York decisions reveal is that the answer to our question—\\n\\n 5 whether liability as a successor in interest also entails being subject to personal \\n\\n 6 jurisdiction where the actions of the predecessor would have made the \\n\\n 7 predecessor subject—depends on the basis of the successor liability. The fair \\n\\n 8 inference of the precedents is that, while successor liability based on acquisition of \\n\\n 9 a predecessor’s assets does not necessarily make the defendant also amenable to \\n\\n10 jurisdiction where the predecessor’s actions would have made the predecessor \\n\\n11 subject to specific jurisdiction, the rule is different where the successor liability of \\n\\n12 the defendant derives from a merger with the predecessor. So far as appears from \\n\\n13 the decisions, none of Judge Chin’s cases involves successor liability based on \\n\\n14 merger; nonetheless, these decisions imply, indeed virtually state, that where the \\n\\n15 successor status is based on merger, the merged entity is subject to jurisdiction \\n\\n16 wherever its merger partner’s actions would have made the merger partner \\n\\n17 subject in a suit based on the merger partner’s liability. \\n\\n\\n\\n\\n ‐ 28 ‐ \\n \\n\\n 1 In Semenetz, the plaintiff, who was injured in New York while operating a \\n\\n 2 sawmill brought a New York personal injury action for products liability against \\n\\n 3 an Alabama corporation (identified as “Sawmills”), which had purchased the \\n\\n 4 assets of the company (“Edger”) that had sold the sawmill to plaintiff’s New York \\n\\n 5 employer. The plaintiff sought to impose both New York jurisdiction and liability \\n\\n 6 on Sawmills based on the argument that Sawmills, having purchased the assets of \\n\\n 7 Edger, was subject to “successor liability” under either the so‐called “product line” \\n\\n 8 or “continuing enterprise” exceptions to “the general rule [that] a corporation \\n\\n 9 which acquires the assets of another is not liable for the torts of its predecessor.” \\n\\n10 Semenetz, 801 N.Y.S.2d at 80. The Appellate Division ruled, “[T]he ‘product line’ \\n\\n11 and ‘continuing enterprise’ exceptions [to nonliability of successor entities] deal \\n\\n12 with the concept of tort liability, not jurisdiction.” Id. at 81. Therefore, even \\n\\n13 assuming that Sawmills was liable under a products liability claim for the tort of \\n\\n14 Edger, whose assets it had purchased, its successor liability did not render it \\n\\n15 subject to New York jurisdiction, as Edger would have been. However, in the very \\n\\n16 next sentence, the decision explicitly “recognize[d]” that, in contrast, “in certain \\n\\n17 circumstances the successor corporation ‘may inherit its predecessor’s \\n\\n18 jurisdictional status,’” and cited to a number of cases addressing those \\n\\n\\n\\n ‐ 29 ‐ \\n \\n\\n 1 circumstances. Id. Among the cases cited by Semenetz with approval as discussing \\n\\n 2 circumstances where the successor to the predecessor’s liability also “inherits” the \\n\\n 3 predecessor’s jurisdictional status is Schenin v. Micro Copper Corp., 272 F. Supp. 523, \\n\\n 4 526 (S.D.N.Y. 1967), which recognized that, had the successor liability been based \\n\\n 5 on merger (as opposed to successor liability based on purchase of assets), the \\n\\n 6 successor would “inherit” the predecessor’s jurisdictional status. \\n\\n 7 The Schenin suit was brought in New York against an out‐of‐state \\n\\n 8 corporation, Micro Copper Corporation (“Micro”), as successor to the liability of \\n\\n 9 Vanura Uranium (“Vanura”), on the theory that Micro, having purchased the \\n\\n10 assets of Vanura, was not only liable for Vanura’s liabilities but also subject to \\n\\n11 jurisdiction where Vanura would have been subject. The court ruled that where \\n\\n12 the theory of successor liability is based on the successor’s purchase of the \\n\\n13 predecessor’s assets, the successor is not rendered subject to jurisdiction where the \\n\\n14 predecessor would have been subject in such a suit. The court, however, explicitly \\n\\n15 contrasted successor liability based on purchase of the predecessor’s assets with \\n\\n16 successor liability based on a merger with the predecessor, stating, “The \\n\\n17 insurmountable hurdle in plaintiff’s path [in seeking to subject the defendant to \\n\\n18 New York jurisdiction on the basis of its successor liability] is the sound distinction \\n\\n\\n\\n ‐ 30 ‐ \\n \\n\\n 1 in law between a statutory merger and an acquisition of assets.” Schenin, 272 F. \\n\\n 2 Supp. at 526. The court observed that the plaintiff “has sought through ambiguous \\n\\n 3 rhetoric and disproven implication” to represent Micro’s acquisition as a merger, \\n\\n 4 but had “failed to adduce a single shred of probative evidence that the transaction \\n\\n 5 . . . was anything but an acquisition of assets . . . .” Id. \\n\\n 6 In other words, while the holding of Semenetz was that successor liability on \\n\\n 7 the basis of the “product line” or “continuing enterprise” exceptions to successor‐\\n\\n 8 nonliability does not confer on the successor the jurisdictional status of the \\n\\n 9 predecessor, the decision explicitly recognizes that the rule is otherwise when the \\n\\n10 successor status results from merger with the predecessor. \\n\\n11 As noted, Judge Chin cites a sentence from BRG, which relies on, and \\n\\n12 substantially quotes from, the Semenetz precedent. In BRG, the plaintiff brought a \\n\\n13 New York suit against Valero Energy Corporation (“Valero”), a foreign \\n\\n14 corporation, asserting liability to recover the costs of remediating environmental \\n\\n15 contamination that was caused by Valero’s “predecessor[] in interest.” BRG, 82 \\n\\n16 N.Y.S.3d at 798. The court of first instance had denied Valero’s motion to dismiss \\n\\n17 for lack of jurisdiction, reasoning that Valero “was the successor in interest to a \\n\\n18 company that was itself subject to personal jurisdiction in New York.” Id. at 799. \\n\\n\\n\\n ‐ 31 ‐ \\n \\n\\n 1 The Appellate Division reversed explicitly basing its decision on the Semenetz \\n\\n 2 precedent, ruling that while Valero’s status as a successor might make it liable for \\n\\n 3 its predecessor’s tort, its successor status did not subject it to personal jurisdiction \\n\\n 4 in New York merely because its predecessor was so subject. BRG did not explain \\n\\n 5 the basis for deeming Valero a successor in interest to the tortfeasor. The decision \\n\\n 6 says nothing to suggest that Valero had merged with the predecessor. Because (a) \\n\\n 7 the BRG court deemed the Semenetz precedent to be controlling, (b) the Semenetz \\n\\n 8 court had distinguished successorship resulting from merger from the \\n\\n 9 successorship involved in that case, and (c) nothing in the BRG decision indicated \\n\\n10 that the defendant’s successor status resulted from merger with the obligor, BRG’s \\n\\n11 ruling expressed in its quotation from Semenetz presumably did not involve \\n\\n12 successorship through merger. If it had, the BRG ruling would have been contrary \\n\\n13 to the rule expressed by the Semenetz decision, which BRG purported to follow. \\n\\n14 Indeed, BRG recognized as per Semenetz that in some circumstances (unlike the \\n\\n15 facts of BRG) a successor entity does “inherit jurisdictional status.” Id. at 799. BRG \\n\\n16 therefore does not support the proposition that a successor by merger is not subject \\n\\n17 to jurisdiction where its merger partner’s actions would have subjected the merger \\n\\n18 partner to jurisdiction for breach of its contracts. \\n\\n\\n\\n ‐ 32 ‐ \\n \\n\\n 1 Judge Chin may have been misled by the BRG’s slight misquotation of the \\n\\n 2 Semenetz precedent. In its critical sentence that was quoted in the BRG opinion, the \\n\\n 3 Semenetz court had made clear that it was “[t]he ‘product line’ and ‘continuing \\n\\n 4 enterprise’ exceptions to the [nonliability of a successor that] deal with the concept \\n\\n 5 of tort liability, not jurisdiction.” Semenetz, 801 N.Y.S.2d at 81. In quoting that \\n\\n 6 sentence from Semenetz, however, BRG changed Semenetz’s sentence to say, “The \\n\\n 7 ‘successor liability rule[s]’ deal with the concept of tort liability, not jurisdiction.” \\n\\n 8 BRG, 82 N.Y.S.3d at 799 (emphasis added). The alteration of the Semenetz sentence, \\n\\n 9 if considered out of context, could suggest that successor liability never entails \\n\\n10 successorship to the predecessor’s jurisdictional status. If that had been BRG’s \\n\\n11 meaning, its rule would have been contrary to the Semenetz holding. BRG, \\n\\n12 however, made clear that it was adopting Semenetz’s rationale. Id. (“Plaintiffs do \\n\\n13 not challenge Semenetz’s holding or its rationale, nor do they ask us to chart our \\n\\n14 own course on this novel and unsettled jurisdictional issue.”). \\n\\n15 Nor is Judge Chin’s speculation supported by the Seventh Circuit case he \\n\\n16 cites. See Purdue Research Found. v. Sanofi‐Synthelabo, S.A., 338 F.3d 773 (7th Cir. \\n\\n17 2003). In Purdue Research, the plaintiff sued a French corporation in Indiana for \\n\\n18 breach of contract. The plaintiff’s contract, however, was not originally with the \\n\\n\\n\\n ‐ 33 ‐ \\n \\n\\n 1 French defendant. The contract had been assigned by the plaintiff’s contractual \\n\\n 2 counterpart to the French defendant in an asset purchase. The plaintiff sought to \\n\\n 3 justify subjecting the French defendant to Indiana jurisdiction on a successor‐in‐\\n\\n 4 interest theory by reason of its purchase of the contract in question from an entity \\n\\n 5 that was subject to suit in Indiana. The Seventh Circuit upheld the District \\n\\n 6 Court’s dismissal for want of personal jurisdiction in Indiana. The court ruled \\n\\n 7 that the French defendant’s purchase of limited assets including the breached \\n\\n 8 contract from an entity that was subject to suit in Indiana did not render it \\n\\n 9 subject to Indiana jurisdiction as a successor. The court explicitly noted that the \\n\\n10 defendant “did not merge with [the seller of the assets] nor did it purchase all (or \\n\\n11 substantially all) of [the seller’s] assets,” implying that the result would be \\n\\n12 otherwise had either of these been true. Id. at 785. \\n\\n13 CONCLUSION \\n\\n14 For the reasons set forth above, we hereby (i) REVERSE the Indiana \\n\\n15 district court’s ruling that it lacked personal jurisdiction over Defendant; (ii) \\n\\n16 AFFIRM the New York district court’s denial of Plaintiff’s motion for retransfer \\n\\n17 to Indiana (treating the transfer order as one made under § 1404(a) of Title 28, \\n\\n18 rather than under § 1631); (iii) VACATE the judgment rendered in favor of \\n\\n\\n\\n ‐ 34 ‐ \\n \\n\\n1 Defendant on the basis of the untimeliness of the suit as judged under New York \\n\\n2 choice of law rules; and (iv) REMAND to the district court to adjudicate under \\n\\n3 the choice‐of‐law rules of Indiana. \\n\\n\\n\\n\\n ‐ 35 ‐\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368439/\", \"author_raw\": \"12 Judge Chin’s concurring\"}, {\"author\": \"1 CHIN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"1 CHIN, Circuit Judge, concurring: \\n\\n 2 I concur in the majorityʹs decision to affirm the denial of the motion to \\n\\n 3 retransfer, and agree that the case should be remanded for further proceedings. \\n\\n 4 I am not persuaded, on the present record, that Indiana had specific \\n\\n 5 personal jurisdiction over Bank of America. Bank of Americaʹs contacts with \\n\\n 6 respect to the relevant contracts were in New York only. The MLPA and PSA \\n\\n 7 were negotiated, drafted, and executed in New York, and include New York \\n\\n 8 choice‐of‐law clauses. Bank of America is subject to personal jurisdiction in \\n\\n 9 Indiana, if at all, only because it is a successor‐by‐merger to LaSalle. While a \\n\\n10 successor‐by‐merger is ʺsubject to all the liabilities of the acquired compan[y],ʺ \\n\\n11 James D. Cox & Thomas Lee Hazen, 4 Treatise of the Law of Corporations § 22:8 \\n\\n12 (3d ed.), it is not always the case that an acquired companyʹs jurisdictional \\n\\n13 contacts can be imputed to the successor‐by‐merger. Even though Bank of \\n\\n14 America is liable on the agreements, that does not mean that Bank of America is \\n\\n15 necessarily subject to suit in Indiana because of LaSalleʹs jurisdictional contacts. \\n\\n16 Compare BRG Corp. v. Chevron U.S.A., Inc., 82 N.Y.S.3d 798, 799 (App. Div. 4th \\n\\n17 Depʹt 2018) (ʺThe successor liability rule[s] deal with the concept of tort liability, \\n\\n18 not jurisdiction. When and if [successor liability] is found applicable, the \\n\\n 1 corporate successor would be subject to liability for the torts of its predecessor in \\n\\n 2 any forum having in personam jurisdiction over the successor, but the [successor \\n\\n 3 liability rules] do not and cannot confer such jurisdiction over the successor in \\n\\n 4 the first instance.ʺ (alteration in original) (internal quotation marks omitted)), \\n\\n 5 with Purdue Research Found. v. Sanofi‐Synthelabo, S.A., 338 F.3d 773, 783 (7th Cir. \\n\\n 6 2003) (recognizing a predecessorʹs jurisdictional contacts may be imputed to a \\n\\n 7 successor corporation where the successor corporation is a mere continuation of \\n\\n 8 the predecessor or where the forumʹs successor liability laws would hold the \\n\\n 9 successor liable for the predecessorʹs actions). \\n\\n10 I do not believe, on the record before us, that it is clear that Indiana has \\n\\n11 specific personal jurisdiction over Bank of America. I would, therefore, leave the \\n\\n12 question of personal jurisdiction to the district court in the first instance to decide \\n\\n13 after it determines the choice of law question. See 4A Charles Alan Wright & \\n\\n14 Arthur R. Miller, Federal Practice and Procedure § 1069.4 (4th ed. April 2018 \\n\\n15 Update) (ʺ[S]pecial problems are presented when [personal] jurisdiction over a \\n\\n16 defendant is justified by a related entityʹs contacts with the forum . . . . The very \\n\\n17 nature of these often difficult issues makes their resolution extremely fact \\n\\n18 dependent.ʺ). \\n\\n\\n\\n 2 \\n \\n\\n1 Accordingly, I would remand for the district court to resolve the question \\n\\n2 of specific personal jurisdiction, in addition to the choice‐of‐law and statute of \\n\\n3 limitations issues. \\n\\n4 \\n\\n\\n\\n\\n 3\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368439/\", \"author_raw\": \"1 CHIN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"LEVAL"},"judge2":{"kind":"string","value":"LIVINGSTON"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"LEVAL\": \", Circuit\", \"LIVINGSTON\": \", Circuit\", \"CHIN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591186/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: U.S. Bank Nat'l Ass'n v. Bank of America N.A.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n16‐3560‐cv \n U.S. Bank Natʹl Assʹn v. Bank of America N.A. \n \t \t \n 1 UNITED STATES COURT OF APPEALS \n 2 FOR THE SECOND CIRCUIT \n 3 \n\n 4 August Term 2017 \n\n 5 (Argued: November 8, 2017 Decided: February 15, 2019) \n\n 6 Docket No. 16‐3560‐cv \n 7 \n\n 8 U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR (WELLS FARGO \n 9 BANK, NA), AS TRUSTEE (REGISTERED HOLDERS OF CITIGROUP \n10 COMMERCIAL MORTGAGE TRUST 2007‐C6, COMMERCIAL MORTGAGE \n11 PASS‐THROUGH CERTIFICATES, SERIES 2007‐C6), ACTING BY AND \n12 THROUGH SPECIAL SERVICER CWCAPITAL ASSET MANAGEMENT LLC, \n13 \n14 Plaintiff‐Appellant, \n15 \n16 v. \n17 \n18 BANK OF AMERICA N.A., \n19 \n20 Defendant‐Appellee. \n21 \n22 \n\n23 ON APPEAL FROM THE UNITED STATES DISTRICT COURT \n24 FOR THE SOUTHERN DISTRICT OF NEW YORK \n\n25 \n26 \n27 Before: \n28 LEVAL, LIVINGSTON, and CHIN, Circuit Judges. \n29 \n\n30 Appeal by Plaintiff U.S. Bank National Association from orders of the \n31 United States District Court for the Southern District of New York (Paul G. \n\n 1 Gardephe, J.) denying Plaintiff’s motion to retransfer the suit to the United States \n 2 District Court for the Southern District of Indiana, where it was instituted, and \n 3 granting judgment on the pleadings in favor of Defendant Bank of America N.A., \n 4 by reason of untimeliness under the laws of New York. The district court in \n 5 Indiana had transferred the case to New York under 28 U.S.C. § 1631 based on its \n 6 conclusion that the defendant was not subject to personal jurisdiction in Indiana. \n 7 Although we disagree with that conclusion (and therefore with the propriety of \n 8 the transfer under § 1631), we affirm the New York district court’s denial of the \n 9 motion to retransfer to Indiana, treat the original transfer as one made under 28 \n10 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment that the suit was \n11 untimely under the laws of New York. The judgment is VACATED and the case \n12 is REMANDED for further proceedings. \n\n13 Judge CHIN concurs in a separate opinion. \n\n14 \n15 \n16 COLLEEN M. MALLON (Gregory A. Cross, on the brief), \n17 Venable LLP, Baltimore, Maryland, for Plaintiff‐\n18 Appellant. \n19 \n20 ELIZABETH P. PAPEZ (Luke A. Connelly, Stephanie A. \n21 Maloney, on the brief), Winston & Strawn LLP, \n22 Washington, D.C. and New York, New York, for \n23 Defendant‐Appellee. \n24 \n\n25 LEVAL, Circuit Judge: \n\n26 In this suit for breach of contract, Plaintiff U.S. Bank National Association \n\n27 appeals from orders of the United States District Court for the Southern District \n\n28 of New York (Paul G. Gardephe, J.) denying its motion to retransfer the suit to \n\n29 the United States District Court for the Southern District of Indiana, where it was \n\n\n\n ‐ 2 ‐ \n \n\n 1 instituted, and granting judgment on the pleadings in favor of Defendant Bank of \n\n 2 America N.A., by reason of the untimeliness of the suit under New York’s statute \n\n 3 of limitations. The district court in Indiana had transferred the case to New York \n\n 4 under 28 U.S.C. § 1631, based on its conclusion that the suit could not be brought \n\n 5 in Indiana because the Defendant (a nationally chartered bank and citizen of \n\n 6 North Carolina) was not subject to personal jurisdiction in Indiana. \n\n 7 We disagree with the Indiana district court’s conclusion that the Defendant \n\n 8 was not subject to the jurisdiction of the Indiana court, and therefore we \n\n 9 necessarily conclude that the Indiana court’s transfer to New York was not \n\n10 authorized by § 1631. We nonetheless affirm the New York district court’s denial \n\n11 of Plaintiff’s motion to retransfer to Indiana, treat the original transfer as one \n\n12 made under 28 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment of \n\n13 dismissal rendered on the ground that the suit was untimely under the laws of \n\n14 New York. \n\n15 \n\n16 \n\n17 \n\n18 \n\n\n\n ‐ 3 ‐ \n \n\n 1 BACKGROUND \n\n 2 I. The Mortgage Loan Purchase Agreement \n\n 3 In 2007, Defendant Bank of America’s predecessor, LaSalle Bank N.A.,1 \n\n 4 entered into a Mortgage Loan Purchase Agreement (the “MLPA”), for the sale of \n\n 5 a portfolio (of approximately 100 commercial mortgage loans) to an entity2 acting \n\n 6 for the benefit of an investment trust (the “Trust”), for which Plaintiff U.S. Bank \n\n 7 (a nationally chartered bank and citizen of Ohio) serves as Trustee. The MLPA \n\n 8 was supplemented by a Pooling and Servicing Agreement (the “PSA”), which \n\n 9 provided that the purchaser would deposit the loans into the Trust and assign all \n\n10 of its rights under the MLPA to the Trust. \n\n11 In the MLPA, the seller made representations and warranties regarding the \n\n12 loans. These included Representation No. 8 (set forth in the margin),3 which \n\n\n \n 1 LaSalle Bank later merged with Defendant Bank of America. \n\n 2 Citigroup Commercial Mortgage Securities, Inc. was the purchaser under the MLPA \n\n for the benefit of the Trust. \n 3 “Each related Mortgage is a valid and enforceable first lien on the related Mortgaged \n\n Property subject only to . . . [exceptions not relevant here] and the following title \n exceptions . . . (b) covenants, conditions and restrictions, rights of way, easements and \n other matters of public record, none of which, individually or in the aggregate, materially \n and adversely interferes with the current use of the Mortgaged Property or the security intended \n to be provided by such Mortgage or with the Mortgagorʹs ability to pay its obligations under the \n Mortgage Loan when they become due or materially and adversely affects the value of the \n Mortgaged Property . . . .” App. 93. (emphasis added) \n \n ‐ 4 ‐ \n \n\n 1 effectively represented the absence of any restrictions that would interfere with \n\n 2 the mortgagorʹs ability to pay its obligations under the mortgage loan or would \n\n 3 materially and adversely affect the value of the mortgaged property. \n\n 4 The MLPA prescribes specific remedies available to the mortgagee in the \n\n 5 event of a “Document Defect or a Breach” of a representation. App. 79. Pursuant \n\n 6 to Section 3(c), the seller of the loan portfolio (Defendant’s predecessor) \n\n 7 undertook a commitment that, upon receipt of notice of a Document Defect or \n\n 8 Breach, it would: \n\n 9 cure such Document Defect or Breach . . . in all material \n10 respects, or, if such Document Defect or Breach . . . \n11 cannot be cured . . . , (i) repurchase the affected \n12 Mortgage Loan at the applicable Purchase Price . . . , or \n13 (ii) substitute a Qualified Substitute Mortgage Loan for \n14 such affected Mortgage Loan . . . . \n\n15 App. 79. \n\n16 The PSA, in Section 2.03, similarly provides that, after receiving timely \n\n17 notice of a Document Defect or Breach, the seller shall: \n\n18 (i) cure such Document Defect or Breach, as the case \n19 may be, in accordance with Section 3 of the applicable \n20 [MLPA], (ii) repurchase the affected Trust Mortgage \n21 Loan in accordance with Section 3 of the related \n22 [MLPA], or (iii) within two (2) years of the Closing \n\n\n\n\n ‐ 5 ‐ \n \n\n 1 \n 2 Date, substitute a Qualified Substitute Mortgage Loan \n 3 for such affected Trust Mortgage Loan . . . . \n\n 4 App. 247. \n\n 5 II. The Indiana Loan \n\n 6 One of the items in the portfolio sold pursuant to the MLPA, was a $9 \n\n 7 million loan (the “Loan”), which is the subject of this litigation, made in 2007 to \n\n 8 Womenʹs Physicians Group, LLC. Repayment of the Loan was secured in part by \n\n 9 a mortgage on a two‐story commercial building (the “Property”) (then owned by \n\n10 the borrower/mortgagor Womenʹs Physicians Group), which was located on a \n\n11 hospital campus in Indiana. Womenʹs Physicians Group had purchased the \n\n12 Property from Galen Hospital Corporation (the “Hospital”) pursuant to a special \n\n13 warranty deed. The deed includes two title exceptions that run with the \n\n14 property: (1) a use restriction, which, absent the consent of the Hospital, \n\n15 prohibits use of the Property otherwise than as an ambulatory surgery center and \n\n16 medical offices, and (2) a right of first refusal in favor of the Hospital for any sale, \n\n17 transfer, or assignment. \n\n18 In 2012, Women’s Physicians Group lost the major tenant for the Property, \n\n19 was unable to secure a new tenant that would use the Property in a manner that \n\n20 conformed to the use restriction, and consequently defaulted on the Loan. On \n ‐ 6 ‐ \n \n\n 1 December 13, 2012, the Trust, which had acquired the Loan pursuant to the \n\n 2 MLPA, commenced a foreclosure action in Indiana state court against Womenʹs \n\n 3 Physicians Group. The foreclosure court appointed a receiver, who similarly \n\n 4 failed to secure either a tenant or a waiver or modification of the deed \n\n 5 restrictions. \n\n 6 On October 18, 2013, Plaintiff‐Trustee notified Bank of America that it had \n\n 7 violated MLPA Representation No. 8 and demanded that Bank of America cure \n\n 8 the violation or repurchase the Loan, as provided in the MLPA. Bank of America \n\n 9 did not do so. \n\n10 III. The Proceedings Below \n\n11 On September 12, 2014, Plaintiff, as Trustee, brought this action against \n\n12 Bank of America in the Indiana district court, alleging breach of Representation \n\n13 No. 8. Bank of America moved to dismiss the suit, or alternatively to transfer it to \n\n14 the Southern District of New York, asserting that it was not subject to personal \n\n15 jurisdiction in Indiana. The Indiana district court ruled that Bank of America was \n\n16 not subject to personal jurisdiction in Indiana. The Indiana district court \n\n17 transferred the case to the New York district court pursuant to 28 U.S.C. § 1631, \n\n18 which authorizes a federal district court, on the basis of a “want of jurisdiction, . . \n\n\n\n ‐ 7 ‐ \n \n\n 1 . if it is in the interest of justice, [to] transfer such action . . . to any other such \n\n 2 court . . . in which the action . . . could have been brought.”4 It is undisputed that \n\n 3 venue and jurisdiction are proper in the Southern District of New York. \n\n 4 Following the transfer, Plaintiff moved in the New York district court to \n\n 5 retransfer the case to the Indiana district court, arguing that, contrary to the \n\n 6 Indiana district court’s ruling, Bank of America was subject to the court’s \n\n 7 personal jurisdiction in Indiana on several different bases. The New York district \n\n 8 court denied the motion. In the meantime, Bank of America had moved in the \n\n 9 New York district court for judgment on the pleadings. The district court \n\n10 granted that motion, concluding that Plaintiff’s claim for breach of contract was \n\n11 time‐barred under New Yorkʹs six‐year statute of limitations. The court entered \n\n12 judgment in favor of Defendant Bank of America on September 22, 2016. This \n\n13 appeal followed. \n\n\n\n \n 4 28 U.S.C. § 1631 provides for transfers to cure want of jurisdiction, as follows: \n\n \n Whenever a civil action is filed in a court . . . and that court finds that \n there is a want of jurisdiction, the court shall, if it is in the interest of \n justice, transfer such action or appeal to any other such court . . . in which \n the action or appeal could have been brought at the time it was filed or \n noticed, and the action or appeal shall proceed as if it had been filed in or \n noticed for the court to which it is transferred on the date upon which it \n was actually filed in or noticed for the court from which it is transferred. \n ‐ 8 ‐ \n \n\n 1 DISCUSSION \n\n 2 Plaintiff raises a number of arguments on appeal, including that the \n\n 3 Indiana district court erred in finding that Bank of America was not subject to its \n\n 4 jurisdiction, that the New York district court erred in refusing to retransfer the \n\n 5 case to Indiana, and that the New York district court accordingly should not \n\n 6 have entered judgment in favor of Defendant. We address these issues in turn. \n\n\n 7 I. Was Defendant Subject to the Personal Jurisdiction of the Indiana District \n\n 8 Court? \n\n 9 Plaintiff contends that, contrary to the Indiana district court’s ruling, Bank \n\n10 of America was subject to personal jurisdiction in Indiana, both on the basis of \n\n11 general jurisdiction (because of either its waiver or its extensive activities in \n\n12 Indiana) and specific jurisdiction (because of the contractual representations it \n\n13 undertook concerning real property in Indiana and the commitments it \n\n14 undertook in the terms of the MLPA to perform acts in Indiana). We are \n\n15 persuaded that Bank of America made itself subject to Indiana personal \n\n16 jurisdiction in this case. Accordingly, we have no need to consider Plaintiff’s less \n\n17 persuasive arguments that Bank of America was also subject to general Indiana \n\n18 jurisdiction. \n\n\n ‐ 9 ‐ \n \n\n 1 To determine personal jurisdiction, a federal district court applies the long‐\n\n 2 arm statute of the state in which it sits. See Chloé v. Queen Bee of Beverly Hills, LLC, \n\n 3 616 F.3d 158, 163 (2d Cir. 2010). Indianaʹs long‐arm statute authorizes courts to \n\n 4 exercise jurisdiction on any basis permitted by the U.S. Constitution. Advanced \n\n 5 Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. \n\n 6 2014) (“Under Indianaʹs long‐arm statute, Indiana state courts may exercise \n\n 7 personal jurisdiction on a number of prescribed bases, as well as ‘on any basis \n\n 8 not inconsistent with the Constitution of this state or the United States.’”) \n\n 9 (quoting Ind. R. Trial P. 4.4(A)). To comport with due process, a forum state \n\n10 may exercise jurisdiction over an out‐of‐state corporate defendant only if the \n\n11 defendant has ʺcertain minimum contacts with [the State] such that the \n\n12 maintenance of the suit does not offend ʹtraditional notions of fair play and \n\n13 substantial justice.ʹʺ Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, \n\n14 923 (2011) (alteration in original) (quoting Intʹl Shoe Co. v. Washington, 326 U.S. \n\n15 310, 316 (1945)). Specific jurisdiction over an out‐of‐state defendant “is available \n\n16 when the cause of action sued upon arises out of the defendantʹs activities in a \n\n17 state.ʺ Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016). \n\n\n\n\n ‐ 10 ‐ \n \n\n 1 When deciding whether personal jurisdiction over a defendant exists in a \n\n 2 district court that falls outside this Circuit, we need not predict how our sister \n\n 3 circuit would decide the question, ʺsince we are at liberty to decide for ourselves \n\n 4 what the Due Process Clause requires to sustain personal jurisdiction.ʺ Chew v. \n\n 5 Dietrich, 143 F.3d 24, 30 (2d Cir. 1998); see also SongByrd, Inc. v. Estate of Grossman, \n\n 6 206 F.3d 172, 180‐81 (2d Cir. 2000) (applying this circuitʹs case law to decide \n\n 7 whether Louisiana could exercise personal jurisdiction over a defendant). \n\n 8 Although we consider the decisions of our sister circuits, ʺwe are permitted ‐‐ \n\n 9 indeed, required ‐‐ to reach our own conclusionsʺ on issues of federal law. \n\n10 Desiano v. Warner‐Lambert & Co., 467 F.3d 85, 90 (2d Cir. 2006); see also Rates Tech. \n\n11 Inc. v. Speakeasy, Inc., 685 F.3d 163, 173‐74 (2d Cir. 2012) (ʺ[O]ur court is not \n\n12 bound by the holdings ‐‐ much less the dicta ‐‐ of other federal courts of \n\n13 appeal.ʺ). But we ʺdefer conclusivelyʺ to another circuitʹs decision when it \n\n14 addresses a question of state law from a state within that circuit. Desiano, 467 \n\n15 F.3d at 90. \n\n16 1. Applicable Law of Specific Personal Jurisdiction \n\n17 The Supreme Court has set out three conditions for the exercise of specific \n\n18 jurisdiction over a nonresident defendant. See Bristol‐Myers Squibb Co. v. Superior \n\n\n\n ‐ 11 ‐ \n \n\n 1 Court of California, San Francisco Cty., 137 S. Ct. 1773, 1785‐86 (2017). “First, the \n\n 2 defendant must have purposefully availed itself of the privilege of conducting \n\n 3 activities within the forum State or have purposefully directed its conduct into \n\n 4 the forum State.” Id. at 1785 (quoting J. McIntyre Machinery, Ltd. v. Nicastro, 564 \n\n 5 U.S. 873, 877 (2011) (plurality opinion)). “Second, the plaintiff’s claim must arise \n\n 6 out of or relate to the defendant’s forum conduct.” Id. at 1786 (quoting \n\n 7 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). “Finally, \n\n 8 the exercise of jurisdiction must be reasonable under the circumstances.” Id. \n\n 9 (citing Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, \n\n10 113‐114 (1987)). \n\n11 At the first step, the minimum contacts inquiry is “satisfied if the \n\n12 defendant has ‘purposefully directed’ his activities at residents of the forum.” \n\n13 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v. Hustler \n\n14 Magazine, Inc., 465 U.S. 770, 774 (1984)); see also Charles Schwab Corp. v. Bank of Am. \n\n15 Corp., 883 F.3d 68, 82 (2d Cir. 2018) (ʺ[M]inimum contacts . . . exist where the \n\n16 defendant purposefully availed itself of the privilege of doing business in the \n\n17 forum and could foresee being haled into court there.ʺ). \n\n\n\n\n ‐ 12 ‐ \n \n\n 1 To meet the minimum contacts requirement, ʺthe defendantʹs suit‐related \n\n 2 conduct must create a substantial connection with the forum Stateʺ ‐‐ that is, the \n\n 3 ʺdefendant [it]selfʺ must create those contacts, and those contacts must be with \n\n 4 the ʺforum State itself,ʺ not simply with persons who reside there. Walden v. \n\n 5 Fiore, 134 S. Ct. 1115, 1121‐22 (2014) (citation omitted). Thus, although a \n\n 6 defendantʹs contacts with the forum state may be ʺintertwined with [its] \n\n 7 transactions or interactions with the plaintiff or other parties . . .[,] a defendantʹs \n\n 8 relationship with a . . . third party, standing alone, is an insufficient basis for \n\n 9 jurisdiction.ʺ Id. at 1123; see also Bristol‐Myers Squibb, 137 S. Ct. at 1783 (2017) \n\n10 (same). It is “insufficient to rely on a defendantʹs random, fortuitous, or \n\n11 attenuated contacts or on the unilateral activity of a plaintiff with the forum to \n\n12 establish specific jurisdiction.” Waldman v. Palestine Liberation Org., 835 F.3d 317, \n\n13 337 (2d Cir. 2016) (quoting Walden, 134 S. Ct. at 1123) (internal quotation marks \n\n14 omitted). \n\n15 Nor is it sufficient for a plaintiff to show simply that a defendantʹs actions \n\n16 caused an ʺeffectʺ in the forum state where the defendant has not ʺexpressly \n\n17 aimed its conduct at the forum.ʺ Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, \n\n18 732 F.3d 161, 173 (2d Cir. 2013). And “mere injury to a forum resident” is \n\n\n\n ‐ 13 ‐ \n \n\n 1 insufficient. Walden, 134 S. Ct. at 1125; see also SongByrd, 206 F.3d at 181 (rejecting \n\n 2 specific personal jurisdiction over a defendant even if defendant’s action could \n\n 3 be viewed as a “but for” cause of relevant events in forum state); accord Noboa v. \n\n 4 Barceló Corporación Empresarial, SA, 812 F.3d 571, 572 (7th Cir. 2016) (“[T]he \n\n 5 pertinent question is whether the defendant has links to the jurisdiction in which \n\n 6 the suit was filed, not whether the plaintiff has such links ‐‐ or whether the loss \n\n 7 flowed through a causal chain from the plaintiffʹs contacts with the jurisdiction of \n\n 8 suit.ʺ). Similarly, “the fact that harm in the forum is foreseeable . . . is insufficient \n\n 9 for the purpose of establishing specific personal jurisdiction over a defendant.” \n\n10 In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 674 (2d Cir. 2013). \n\n11 Where the underlying dispute involves a contract, we use a ʺhighly \n\n12 realisticʺ approach and evaluate factors such as “prior negotiations and \n\n13 contemplated future consequences, along with the terms of the contract and the \n\n14 partiesʹ actual course of dealing.” Burger King, 471 U.S. at 479. \n\n15 At the second step, we must be satisfied that “the litigation results from \n\n16 alleged injuries that ‘arise out of or relate to’ those activities.” Id. at 472 (quoting \n\n17 Helicopteros, 466 U.S. at 414). We have found that a claim arises out of forum \n\n18 contacts when defendant’s allegedly culpable conduct involves at least in part \n\n\n\n ‐ 14 ‐ \n \n\n 1 financial transactions that touch the forum. Licci, 732 F.3d at 169‐70. And finally, \n\n 2 for the third step, once it is established that the defendant has minimum contacts \n\n 3 with the forum and the cause of action relates to or arises from those contacts, “a \n\n 4 court considers those contacts ʹin light of other factors to determine whether the \n\n 5 assertion of personal jurisdiction would comport with fair play and substantial \n\n 6 justice.ʹʺ Charles Schwab, 883 F.3d at 82 (quoting Licci, 732 F.3d at 170).5 \n\n 7 2. Application \n\n 8 We conclude that Plaintiff met the requirements summarized above for \n\n 9 establishing specific Indiana jurisdiction over Defendant in this case. The central \n\n10 tenets of Plaintiff’s theory of liability are that (i) Defendant breached \n\n11 Representation No. 8 of the MLPA that there were no restrictions on the use of \n\n12 the Indiana Property that would interfere with the mortgagor’s ability to make \n\n13 its payments or adversely affect the value of the Property and (ii) Defendant \n\n14 failed to comply with its contractual commitment to cure the breach. The \n\n\n \n 5 Under the reasonableness inquiry, we evaluate the following factors: (1) the \n burden on the defendant, (2) the interests of the forum state, (3) the plaintiffʹs interest in \n obtaining relief, (4) the ʺinterstate judicial systemʹs interest in obtaining the most \n efficient resolution of controversies,ʺ and (5) ʺthe shared interests of the several States in \n furthering fundamental substantive social policies.ʺ Asahi, 480 U.S. at 113 (citations \n omitted). Although we consider a variety of factors, ʺthe ʹprimary concernʹ is ʹthe \n burden on the defendant.ʹʺ Bristol‐Myers Squibb, 137 S. Ct. at 1780 (quoting World‐Wide \n Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). \n ‐ 15 ‐ \n \n\n 1 restrictions imposed by the Hospital included the clause forbidding use of the \n\n 2 Property except for in a specified manner (which allegedly prevented the \n\n 3 mortgagor from obtaining a new tenant and thus caused it to default on payment \n\n 4 of the Loan), as well as the right of first refusal in favor of the Hospital (which \n\n 5 allegedly interfered with the mortgagor’s ability to pay the Loan and adversely \n\n 6 affected the value of the Property). Plaintiff alleges that Bank of America then \n\n 7 breached its commitments under Section 3(c) of the MLPA to either “cure such . . \n\n 8 . Breach . . . or, if such . . . Breach . . . cannot be cured, [to] (i) repurchase the \n\n 9 affected Mortgage Loan at the applicable Purchase Price . . . or (ii) substitute a \n\n10 Qualified Substitute Mortgage Loan for such affected Mortgage Loan . ” App. At \n\n11 79. Bank of America’s obligation to “cure” the breach, according to Plaintiff’s \n\n12 theory, required it, among other possibilities, to perform some act in Indiana \n\n13 such as obtaining the Indiana Hospital’s consent to relinquish the deed \n\n14 restrictions that prevented the mortgagor from meeting its Loan obligations. \n\n15 Defendant’s alleged breach of its contractual representations involved the \n\n16 existence of restrictions on the use and value of Indiana Property. In addition, the \n\n17 obligations expressly undertaken by Defendant under the MLPA were \n\n18 purposefully directed toward residents of Indiana, and the suit arose from and \n\n\n\n ‐ 16 ‐ \n \n\n 1 related directly to those Indiana contacts. In view of Defendant’s undertaking of \n\n 2 those commitments in the terms of the contract here in question, we see no \n\n 3 reason why obliging Defendant to litigate this claim in Indiana would offend \n\n 4 traditional notions of fair play or substantial justice, or be unreasonable. \n\n 5 II. Was the New York District Court Correct to Deny Plaintiff’s Motion to \n\n 6 Retransfer? \n\n 7 Plaintiff contends that if, as we have concluded, Bank of America was \n\n 8 subject to personal jurisdiction in the Indiana court, the Indiana court could not \n\n 9 lawfully transfer the venue of the action to New York under § 1631, because that \n\n10 statute authorizes transfer only for “want of jurisdiction.” Plaintiff contends \n\n11 accordingly that the New York district court should have granted its motion to \n\n12 send the case back to Indiana and that we should direct that this be done. We \n\n13 disagree. \n\n14 Such a ruling would fail to heed the Supreme Court’s sagacious warning in \n\n15 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988). Confronting a \n\n16 similar circumstance, the Court cautioned, ʺ[T]ransferee courts that feel entirely \n\n17 free to revisit transfer decisions of a coordinate court threaten to send litigants \n\n18 into a vicious circle of litigation,ʺ culminating in a ʺperpetual game of \n\n\n\n ‐ 17 ‐ \n \n\n 1 jurisdictional ping‐pong.ʺ Id. at 816, 818. Although Christianson differed slightly \n\n 2 in that the potentially dueling transfer orders were entered by coordinate courts of \n\n 3 appeals, as opposed to a court of appeals reviewing of a transfer order of a district \n\n 4 court in another circuit, that distinction does not lessen the pertinence or \n\n 5 importance of the Supreme Court’s observation. \n\n 6 If we were to direct that the case be retransferred to Indiana, eventual \n\n 7 review by the Seventh Circuit might well result in a ruling that that circuit, and \n\n 8 not ours, is authoritative on the reach of jurisdiction of the Indiana courts, a \n\n 9 reaffirmance of the Indiana district court’s original ruling that Bank of America is \n\n10 not subject to personal jurisdiction in Indiana, and a reinstitution of the original \n\n11 transfer to the district court in New York. Whether and where it would end \n\n12 could not be predicted. Such a scenario would be intolerable. Regardless of \n\n13 which court is correct in its appraisal of the jurisdiction question, such a duel \n\n14 between courts of transfers and retransfers would subject the parties to \n\n15 unacceptably mounting expenses and delays. If such occurs, the federal court \n\n16 system abjectly fails to perform its mission of deciding cases with reasonable \n\n17 speed and efficiency at reasonable cost to the parties. \n\n\n\n\n ‐ 18 ‐ \n \n\n 1 The New York district court was sensitive to the Supreme Court’s warning \n\n 2 in rejecting Plaintiff’s motion for retransfer to Indiana. Citing Christianson, it \n\n 3 ruled that it would treat the Indiana court’s transfer of venue as the law of the \n\n 4 case. It reviewed the Indiana court’s decision with respect to the absence of \n\n 5 personal jurisdiction over Defendant in Indiana to the extent of ruling that it \n\n 6 found no clear error in that ruling, and thus denied the motion. While we are not \n\n 7 in complete agreement with the New York district court’s ruling (as explained \n\n 8 below) we entirely approve of its rejection of the motion to retransfer to Indiana. \n\n 9 Arguably, the standard for this court’s review of a transfer order of a \n\n10 district court in a different circuit differs from the standard to be exercised by the \n\n11 transferee district court. As we noted in SongByrd, 206 F.3d at 178 n.7, it would \n\n12 be rare for the doctrine of the law of the case to commit a higher court to adhere \n\n13 to a ruling of a lower court. Nonetheless, as noted above, for this court to require \n\n14 retransfer to the Indiana district court based on our conclusion that the Indiana \n\n15 court erred would give rise to the same unacceptable use of the parties as a ping‐\n\n16 pong ball as if the retransfer order were made by the transferee district court. \n\n17 Plaintiff has not shown that litigating in New York would subject it to any great \n\n18 inconvenience or unfairness. Allowing the case to remain in the Southern District \n\n\n\n ‐ 19 ‐ \n \n\n 1 of New York, notwithstanding that the Indiana court’s transfer order was based \n\n 2 on a mistake of law, is a far lesser evil than subjecting the parties to the further \n\n 3 expense and delay of a retransfer, with the attendant risk of still further rounds \n\n 4 of transfers. \n\n 5 Because the transfer of venue was not available under § 1631, which \n\n 6 authorizes transfers only for want of jurisdiction, we think it is our best course to \n\n 7 treat the erroneous § 1631 transfer as a transfer under 28 U.S.C. § 1404(a) “[f]or \n\n 8 the convenience of [the] parties and witnesses, in the interest of justice.”6 The \n\n 9 interest of justice and the convenience of the parties are served by a transfer \n\n10 under § 1404(a) in that it spares the parties from the intolerable expenses, delays, \n\n11 and attendant burdens that would result from having the case batted back and \n\n\n\n\n \n 6 “For the convenience of parties and witnesses, in the interest of justice, a district court \n\n may transfer any civil action to any other district or division where it might have been \n brought or to any district or division to which all parties have consented.” 28 U.S.C. \n § 1404(a). While the Indiana district court expressly relied on § 1631 as authority for the \n transfer, see U.S. Bank Nat’l Ass’n v. Bank of America N.A., No. 1:14‐cv‐01492, 2015 WL \n 5971126, at *10 (S.D. Ind. Oct. 14, 2015) (“[T]he Court concludes that it does not have \n personal jurisdiction over Bank of America. As a result, the Court TRANSFERS this \n case to the Southern District of New York, pursuant to 28 U.S.C. § 1631.”), the court also \n observed, although making no findings relating to the convenience of the parties and \n witnesses or the interest of justice, that transfer would also be appropriate under \n § 1404(a). Id. \n ‐ 20 ‐ \n \n\n 1 forth from district to district, and that it positions a court to fulfill the mission of \n\n 2 the judicial system by deciding the case. \n\n 3 The New York district court denied the Plaintiff’s motion to retransfer on \n\n 4 the ground that the Indiana court’s transfer under § 1631 for want of jurisdiction \n\n 5 was not clearly erroneous. We see the issue somewhat differently. To say that the \n\n 6 Indiana court’s transfer order was not clearly erroneous does not say it was not \n\n 7 erroneous. Because Bank of America was subject to personal jurisdiction in the \n\n 8 Indiana court, that court’s transfer of venue under § 1631 was not in accordance \n\n 9 with law. Nonetheless, transfer of venue to the Southern District of New York \n\n10 would have been appropriate under § 1404(a). Giving regard to Plaintiff’s failure \n\n11 to show that it would suffer great harm in being compelled to litigate its case in \n\n12 New York instead of in the forum it chose, the unjust burdens that the courts \n\n13 would inflict on the parties by shuttling them back and forth between Indiana \n\n14 and New York, and the Supreme Court’s warnings in Christianson, we find it \n\n15 preferable to affirm the New York district court’s denial of retransfer on a \n\n16 different basis than that court relied on. Accordingly, we affirm the New York \n\n17 district court’s denial of Plaintiff’s motion for retransfer to Indiana, treating the \n\n\n\n\n ‐ 21 ‐ \n \n\n 1 Indiana transfer order as if issued under § 1404(a) and finding such a transfer to \n\n 2 be lawful. \n\n 3 III. Did the New York District Court Err in Granting Defendant’s Motion for \n\n 4 Judgment on the Pleadings under Rule 12(c)? \n\n 5 In denying Plaintiff’s motion to retransfer to Indiana, the New York \n\n 6 district court treated the Indiana court’s transfer order as lawful and efficacious \n\n 7 not only as a transfer of venue to New York, but also as a determination that \n\n 8 Bank of America was not subject to personal jurisdiction in the Indiana court and \n\n 9 that the case would accordingly be decided under the laws of New York, the \n\n10 transferee state. The court explained, “If a district court receives a case pursuant \n\n11 to a transfer under . . . 28 U.S.C. § 1631, for want of jurisdiction, it logically \n\n12 applies the law of the state in which it sits, since the original venue, with its \n\n13 governing laws, was never a proper option.” U.S. Bank Nat’l Ass’n v. Bank of \n\n14 America N.A., No. 15 Civ. 8153, 2016 WL 5118298, at *12 (S.D.N.Y. Sept. 20, 2016) \n\n15 (quoting Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010)). While we agree with \n\n16 that proposition, we find it has no application to this case because, in our view, \n\n17 Bank of America was subject to personal jurisdiction in the Indiana district court, \n\n18 and the original venue, with its governing laws, was a proper option. While we \n\n\n\n ‐ 22 ‐ \n \n\n 1 affirm the New York district court’s denial of Plaintiff’s motion to retransfer to \n\n 2 Indiana, we do not affirm the propriety of the original transfer for want of \n\n 3 jurisdiction under § 1631. We instead affirm the transfer as if made under § 1404(a) \n\n 4 by a court that had jurisdiction of the case. \n\n 5 A transfer under § 1404(a) by a court that has jurisdiction of the case has \n\n 6 different consequences from a transfer under § 1631 by a court that lacks \n\n 7 jurisdiction of the case. Transfers under § 1404(a) by a court that has jurisdiction \n\n 8 are adjudicated in the transferee state under the law of the transferor state. This \n\n 9 is to avoid the unfairness of having a discretionary transfer done for convenience \n\n10 change the law under which the case will be decided. See Van Dusen v. Barrack, \n\n11 376 U.S. 612, 633‐34 (1964); 17 Moore’s Federal Practice § 111.20[1][b] (3d ed. \n\n12 2018) (“[W]hen a case is transferred under Section 1404(a), Van Dusen requires \n\n13 the same choice of law analysis that would have been applied in the transferor \n\n14 court to be conducted in the transferee court, which may require the transferee \n\n15 court to apply its own law, the law of the transferor court, or some other state’s \n\n16 law.”). \n\n17 Under the New York district court’s analysis, Indiana’s 10‐year statute of \n\n18 limitations and its choice of law rules had no pertinence because the case was \n\n\n\n ‐ 23 ‐ \n \n\n 1 never properly lodged in the Indiana court. The transfer under § 1631 to New \n\n 2 York mandated the application of New York’s six‐year statute of limitations, \n\n 3 under which the suit was untimely. Our disposition requires that the New York \n\n 4 district court treat the case as one properly filed in Indiana, applying Indiana’s \n\n 5 choice of law rules to determine whether the suit was timely filed. We therefore \n\n 6 vacate the New York district court’s grant of Bank of America’s motion for \n\n 7 judgment on the pleadings. We express no view on the question whether the suit \n\n 8 was timely filed, when that question is judged under Indiana’s choice‐of‐law \n\n 9 rules, as appropriate for a suit properly brought in Indiana and subsequently \n\n10 transferred to New York under § 1404(a). \n\n11 IV. Response to Judge Chin’s Concurrence\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: U.S. Bank Nat'l Ass'n v. Bank of America N.A.\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n16‐3560‐cv \\n U.S. Bank Natʹl Assʹn v. Bank of America N.A. \\n \\t \\t \\n 1 UNITED STATES COURT OF APPEALS \\n 2 FOR THE SECOND CIRCUIT \\n 3 \\n\\n 4 August Term 2017 \\n\\n 5 (Argued: November 8, 2017 Decided: February 15, 2019) \\n\\n 6 Docket No. 16‐3560‐cv \\n 7 \\n\\n 8 U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR (WELLS FARGO \\n 9 BANK, NA), AS TRUSTEE (REGISTERED HOLDERS OF CITIGROUP \\n10 COMMERCIAL MORTGAGE TRUST 2007‐C6, COMMERCIAL MORTGAGE \\n11 PASS‐THROUGH CERTIFICATES, SERIES 2007‐C6), ACTING BY AND \\n12 THROUGH SPECIAL SERVICER CWCAPITAL ASSET MANAGEMENT LLC, \\n13 \\n14 Plaintiff‐Appellant, \\n15 \\n16 v. \\n17 \\n18 BANK OF AMERICA N.A., \\n19 \\n20 Defendant‐Appellee. \\n21 \\n22 \\n\\n23 ON APPEAL FROM THE UNITED STATES DISTRICT COURT \\n24 FOR THE SOUTHERN DISTRICT OF NEW YORK \\n\\n25 \\n26 \\n27 Before: \\n28 LEVAL, LIVINGSTON, and CHIN, Circuit Judges. \\n29 \\n\\n30 Appeal by Plaintiff U.S. Bank National Association from orders of the \\n31 United States District Court for the Southern District of New York (Paul G. \\n\\n 1 Gardephe, J.) denying Plaintiff’s motion to retransfer the suit to the United States \\n 2 District Court for the Southern District of Indiana, where it was instituted, and \\n 3 granting judgment on the pleadings in favor of Defendant Bank of America N.A., \\n 4 by reason of untimeliness under the laws of New York. The district court in \\n 5 Indiana had transferred the case to New York under 28 U.S.C. § 1631 based on its \\n 6 conclusion that the defendant was not subject to personal jurisdiction in Indiana. \\n 7 Although we disagree with that conclusion (and therefore with the propriety of \\n 8 the transfer under § 1631), we affirm the New York district court’s denial of the \\n 9 motion to retransfer to Indiana, treat the original transfer as one made under 28 \\n10 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment that the suit was \\n11 untimely under the laws of New York. The judgment is VACATED and the case \\n12 is REMANDED for further proceedings. \\n\\n13 Judge CHIN concurs in a separate opinion. \\n\\n14 \\n15 \\n16 COLLEEN M. MALLON (Gregory A. Cross, on the brief), \\n17 Venable LLP, Baltimore, Maryland, for Plaintiff‐\\n18 Appellant. \\n19 \\n20 ELIZABETH P. PAPEZ (Luke A. Connelly, Stephanie A. \\n21 Maloney, on the brief), Winston & Strawn LLP, \\n22 Washington, D.C. and New York, New York, for \\n23 Defendant‐Appellee. \\n24 \\n\\n25 LEVAL, Circuit Judge: \\n\\n26 In this suit for breach of contract, Plaintiff U.S. Bank National Association \\n\\n27 appeals from orders of the United States District Court for the Southern District \\n\\n28 of New York (Paul G. Gardephe, J.) denying its motion to retransfer the suit to \\n\\n29 the United States District Court for the Southern District of Indiana, where it was \\n\\n\\n\\n ‐ 2 ‐ \\n \\n\\n 1 instituted, and granting judgment on the pleadings in favor of Defendant Bank of \\n\\n 2 America N.A., by reason of the untimeliness of the suit under New York’s statute \\n\\n 3 of limitations. The district court in Indiana had transferred the case to New York \\n\\n 4 under 28 U.S.C. § 1631, based on its conclusion that the suit could not be brought \\n\\n 5 in Indiana because the Defendant (a nationally chartered bank and citizen of \\n\\n 6 North Carolina) was not subject to personal jurisdiction in Indiana. \\n\\n 7 We disagree with the Indiana district court’s conclusion that the Defendant \\n\\n 8 was not subject to the jurisdiction of the Indiana court, and therefore we \\n\\n 9 necessarily conclude that the Indiana court’s transfer to New York was not \\n\\n10 authorized by § 1631. We nonetheless affirm the New York district court’s denial \\n\\n11 of Plaintiff’s motion to retransfer to Indiana, treat the original transfer as one \\n\\n12 made under 28 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment of \\n\\n13 dismissal rendered on the ground that the suit was untimely under the laws of \\n\\n14 New York. \\n\\n15 \\n\\n16 \\n\\n17 \\n\\n18 \\n\\n\\n\\n ‐ 3 ‐ \\n \\n\\n 1 BACKGROUND \\n\\n 2 I. The Mortgage Loan Purchase Agreement \\n\\n 3 In 2007, Defendant Bank of America’s predecessor, LaSalle Bank N.A.,1 \\n\\n 4 entered into a Mortgage Loan Purchase Agreement (the “MLPA”), for the sale of \\n\\n 5 a portfolio (of approximately 100 commercial mortgage loans) to an entity2 acting \\n\\n 6 for the benefit of an investment trust (the “Trust”), for which Plaintiff U.S. Bank \\n\\n 7 (a nationally chartered bank and citizen of Ohio) serves as Trustee. The MLPA \\n\\n 8 was supplemented by a Pooling and Servicing Agreement (the “PSA”), which \\n\\n 9 provided that the purchaser would deposit the loans into the Trust and assign all \\n\\n10 of its rights under the MLPA to the Trust. \\n\\n11 In the MLPA, the seller made representations and warranties regarding the \\n\\n12 loans. These included Representation No. 8 (set forth in the margin),3 which \\n\\n\\n \\n 1 LaSalle Bank later merged with Defendant Bank of America. \\n\\n 2 Citigroup Commercial Mortgage Securities, Inc. was the purchaser under the MLPA \\n\\n for the benefit of the Trust. \\n 3 “Each related Mortgage is a valid and enforceable first lien on the related Mortgaged \\n\\n Property subject only to . . . [exceptions not relevant here] and the following title \\n exceptions . . . (b) covenants, conditions and restrictions, rights of way, easements and \\n other matters of public record, none of which, individually or in the aggregate, materially \\n and adversely interferes with the current use of the Mortgaged Property or the security intended \\n to be provided by such Mortgage or with the Mortgagorʹs ability to pay its obligations under the \\n Mortgage Loan when they become due or materially and adversely affects the value of the \\n Mortgaged Property . . . .” App. 93. (emphasis added) \\n \\n ‐ 4 ‐ \\n \\n\\n 1 effectively represented the absence of any restrictions that would interfere with \\n\\n 2 the mortgagorʹs ability to pay its obligations under the mortgage loan or would \\n\\n 3 materially and adversely affect the value of the mortgaged property. \\n\\n 4 The MLPA prescribes specific remedies available to the mortgagee in the \\n\\n 5 event of a “Document Defect or a Breach” of a representation. App. 79. Pursuant \\n\\n 6 to Section 3(c), the seller of the loan portfolio (Defendant’s predecessor) \\n\\n 7 undertook a commitment that, upon receipt of notice of a Document Defect or \\n\\n 8 Breach, it would: \\n\\n 9 cure such Document Defect or Breach . . . in all material \\n10 respects, or, if such Document Defect or Breach . . . \\n11 cannot be cured . . . , (i) repurchase the affected \\n12 Mortgage Loan at the applicable Purchase Price . . . , or \\n13 (ii) substitute a Qualified Substitute Mortgage Loan for \\n14 such affected Mortgage Loan . . . . \\n\\n15 App. 79. \\n\\n16 The PSA, in Section 2.03, similarly provides that, after receiving timely \\n\\n17 notice of a Document Defect or Breach, the seller shall: \\n\\n18 (i) cure such Document Defect or Breach, as the case \\n19 may be, in accordance with Section 3 of the applicable \\n20 [MLPA], (ii) repurchase the affected Trust Mortgage \\n21 Loan in accordance with Section 3 of the related \\n22 [MLPA], or (iii) within two (2) years of the Closing \\n\\n\\n\\n\\n ‐ 5 ‐ \\n \\n\\n 1 \\n 2 Date, substitute a Qualified Substitute Mortgage Loan \\n 3 for such affected Trust Mortgage Loan . . . . \\n\\n 4 App. 247. \\n\\n 5 II. The Indiana Loan \\n\\n 6 One of the items in the portfolio sold pursuant to the MLPA, was a $9 \\n\\n 7 million loan (the “Loan”), which is the subject of this litigation, made in 2007 to \\n\\n 8 Womenʹs Physicians Group, LLC. Repayment of the Loan was secured in part by \\n\\n 9 a mortgage on a two‐story commercial building (the “Property”) (then owned by \\n\\n10 the borrower/mortgagor Womenʹs Physicians Group), which was located on a \\n\\n11 hospital campus in Indiana. Womenʹs Physicians Group had purchased the \\n\\n12 Property from Galen Hospital Corporation (the “Hospital”) pursuant to a special \\n\\n13 warranty deed. The deed includes two title exceptions that run with the \\n\\n14 property: (1) a use restriction, which, absent the consent of the Hospital, \\n\\n15 prohibits use of the Property otherwise than as an ambulatory surgery center and \\n\\n16 medical offices, and (2) a right of first refusal in favor of the Hospital for any sale, \\n\\n17 transfer, or assignment. \\n\\n18 In 2012, Women’s Physicians Group lost the major tenant for the Property, \\n\\n19 was unable to secure a new tenant that would use the Property in a manner that \\n\\n20 conformed to the use restriction, and consequently defaulted on the Loan. On \\n ‐ 6 ‐ \\n \\n\\n 1 December 13, 2012, the Trust, which had acquired the Loan pursuant to the \\n\\n 2 MLPA, commenced a foreclosure action in Indiana state court against Womenʹs \\n\\n 3 Physicians Group. The foreclosure court appointed a receiver, who similarly \\n\\n 4 failed to secure either a tenant or a waiver or modification of the deed \\n\\n 5 restrictions. \\n\\n 6 On October 18, 2013, Plaintiff‐Trustee notified Bank of America that it had \\n\\n 7 violated MLPA Representation No. 8 and demanded that Bank of America cure \\n\\n 8 the violation or repurchase the Loan, as provided in the MLPA. Bank of America \\n\\n 9 did not do so. \\n\\n10 III. The Proceedings Below \\n\\n11 On September 12, 2014, Plaintiff, as Trustee, brought this action against \\n\\n12 Bank of America in the Indiana district court, alleging breach of Representation \\n\\n13 No. 8. Bank of America moved to dismiss the suit, or alternatively to transfer it to \\n\\n14 the Southern District of New York, asserting that it was not subject to personal \\n\\n15 jurisdiction in Indiana. The Indiana district court ruled that Bank of America was \\n\\n16 not subject to personal jurisdiction in Indiana. The Indiana district court \\n\\n17 transferred the case to the New York district court pursuant to 28 U.S.C. § 1631, \\n\\n18 which authorizes a federal district court, on the basis of a “want of jurisdiction, . . \\n\\n\\n\\n ‐ 7 ‐ \\n \\n\\n 1 . if it is in the interest of justice, [to] transfer such action . . . to any other such \\n\\n 2 court . . . in which the action . . . could have been brought.”4 It is undisputed that \\n\\n 3 venue and jurisdiction are proper in the Southern District of New York. \\n\\n 4 Following the transfer, Plaintiff moved in the New York district court to \\n\\n 5 retransfer the case to the Indiana district court, arguing that, contrary to the \\n\\n 6 Indiana district court’s ruling, Bank of America was subject to the court’s \\n\\n 7 personal jurisdiction in Indiana on several different bases. The New York district \\n\\n 8 court denied the motion. In the meantime, Bank of America had moved in the \\n\\n 9 New York district court for judgment on the pleadings. The district court \\n\\n10 granted that motion, concluding that Plaintiff’s claim for breach of contract was \\n\\n11 time‐barred under New Yorkʹs six‐year statute of limitations. The court entered \\n\\n12 judgment in favor of Defendant Bank of America on September 22, 2016. This \\n\\n13 appeal followed. \\n\\n\\n\\n \\n 4 28 U.S.C. § 1631 provides for transfers to cure want of jurisdiction, as follows: \\n\\n \\n Whenever a civil action is filed in a court . . . and that court finds that \\n there is a want of jurisdiction, the court shall, if it is in the interest of \\n justice, transfer such action or appeal to any other such court . . . in which \\n the action or appeal could have been brought at the time it was filed or \\n noticed, and the action or appeal shall proceed as if it had been filed in or \\n noticed for the court to which it is transferred on the date upon which it \\n was actually filed in or noticed for the court from which it is transferred. \\n ‐ 8 ‐ \\n \\n\\n 1 DISCUSSION \\n\\n 2 Plaintiff raises a number of arguments on appeal, including that the \\n\\n 3 Indiana district court erred in finding that Bank of America was not subject to its \\n\\n 4 jurisdiction, that the New York district court erred in refusing to retransfer the \\n\\n 5 case to Indiana, and that the New York district court accordingly should not \\n\\n 6 have entered judgment in favor of Defendant. We address these issues in turn. \\n\\n\\n 7 I. Was Defendant Subject to the Personal Jurisdiction of the Indiana District \\n\\n 8 Court? \\n\\n 9 Plaintiff contends that, contrary to the Indiana district court’s ruling, Bank \\n\\n10 of America was subject to personal jurisdiction in Indiana, both on the basis of \\n\\n11 general jurisdiction (because of either its waiver or its extensive activities in \\n\\n12 Indiana) and specific jurisdiction (because of the contractual representations it \\n\\n13 undertook concerning real property in Indiana and the commitments it \\n\\n14 undertook in the terms of the MLPA to perform acts in Indiana). We are \\n\\n15 persuaded that Bank of America made itself subject to Indiana personal \\n\\n16 jurisdiction in this case. Accordingly, we have no need to consider Plaintiff’s less \\n\\n17 persuasive arguments that Bank of America was also subject to general Indiana \\n\\n18 jurisdiction. \\n\\n\\n ‐ 9 ‐ \\n \\n\\n 1 To determine personal jurisdiction, a federal district court applies the long‐\\n\\n 2 arm statute of the state in which it sits. See Chloé v. Queen Bee of Beverly Hills, LLC, \\n\\n 3 616 F.3d 158, 163 (2d Cir. 2010). Indianaʹs long‐arm statute authorizes courts to \\n\\n 4 exercise jurisdiction on any basis permitted by the U.S. Constitution. Advanced \\n\\n 5 Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. \\n\\n 6 2014) (“Under Indianaʹs long‐arm statute, Indiana state courts may exercise \\n\\n 7 personal jurisdiction on a number of prescribed bases, as well as ‘on any basis \\n\\n 8 not inconsistent with the Constitution of this state or the United States.’”) \\n\\n 9 (quoting Ind. R. Trial P. 4.4(A)). To comport with due process, a forum state \\n\\n10 may exercise jurisdiction over an out‐of‐state corporate defendant only if the \\n\\n11 defendant has ʺcertain minimum contacts with [the State] such that the \\n\\n12 maintenance of the suit does not offend ʹtraditional notions of fair play and \\n\\n13 substantial justice.ʹʺ Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, \\n\\n14 923 (2011) (alteration in original) (quoting Intʹl Shoe Co. v. Washington, 326 U.S. \\n\\n15 310, 316 (1945)). Specific jurisdiction over an out‐of‐state defendant “is available \\n\\n16 when the cause of action sued upon arises out of the defendantʹs activities in a \\n\\n17 state.ʺ Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016). \\n\\n\\n\\n\\n ‐ 10 ‐ \\n \\n\\n 1 When deciding whether personal jurisdiction over a defendant exists in a \\n\\n 2 district court that falls outside this Circuit, we need not predict how our sister \\n\\n 3 circuit would decide the question, ʺsince we are at liberty to decide for ourselves \\n\\n 4 what the Due Process Clause requires to sustain personal jurisdiction.ʺ Chew v. \\n\\n 5 Dietrich, 143 F.3d 24, 30 (2d Cir. 1998); see also SongByrd, Inc. v. Estate of Grossman, \\n\\n 6 206 F.3d 172, 180‐81 (2d Cir. 2000) (applying this circuitʹs case law to decide \\n\\n 7 whether Louisiana could exercise personal jurisdiction over a defendant). \\n\\n 8 Although we consider the decisions of our sister circuits, ʺwe are permitted ‐‐ \\n\\n 9 indeed, required ‐‐ to reach our own conclusionsʺ on issues of federal law. \\n\\n10 Desiano v. Warner‐Lambert & Co., 467 F.3d 85, 90 (2d Cir. 2006); see also Rates Tech. \\n\\n11 Inc. v. Speakeasy, Inc., 685 F.3d 163, 173‐74 (2d Cir. 2012) (ʺ[O]ur court is not \\n\\n12 bound by the holdings ‐‐ much less the dicta ‐‐ of other federal courts of \\n\\n13 appeal.ʺ). But we ʺdefer conclusivelyʺ to another circuitʹs decision when it \\n\\n14 addresses a question of state law from a state within that circuit. Desiano, 467 \\n\\n15 F.3d at 90. \\n\\n16 1. Applicable Law of Specific Personal Jurisdiction \\n\\n17 The Supreme Court has set out three conditions for the exercise of specific \\n\\n18 jurisdiction over a nonresident defendant. See Bristol‐Myers Squibb Co. v. Superior \\n\\n\\n\\n ‐ 11 ‐ \\n \\n\\n 1 Court of California, San Francisco Cty., 137 S. Ct. 1773, 1785‐86 (2017). “First, the \\n\\n 2 defendant must have purposefully availed itself of the privilege of conducting \\n\\n 3 activities within the forum State or have purposefully directed its conduct into \\n\\n 4 the forum State.” Id. at 1785 (quoting J. McIntyre Machinery, Ltd. v. Nicastro, 564 \\n\\n 5 U.S. 873, 877 (2011) (plurality opinion)). “Second, the plaintiff’s claim must arise \\n\\n 6 out of or relate to the defendant’s forum conduct.” Id. at 1786 (quoting \\n\\n 7 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). “Finally, \\n\\n 8 the exercise of jurisdiction must be reasonable under the circumstances.” Id. \\n\\n 9 (citing Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, \\n\\n10 113‐114 (1987)). \\n\\n11 At the first step, the minimum contacts inquiry is “satisfied if the \\n\\n12 defendant has ‘purposefully directed’ his activities at residents of the forum.” \\n\\n13 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v. Hustler \\n\\n14 Magazine, Inc., 465 U.S. 770, 774 (1984)); see also Charles Schwab Corp. v. Bank of Am. \\n\\n15 Corp., 883 F.3d 68, 82 (2d Cir. 2018) (ʺ[M]inimum contacts . . . exist where the \\n\\n16 defendant purposefully availed itself of the privilege of doing business in the \\n\\n17 forum and could foresee being haled into court there.ʺ). \\n\\n\\n\\n\\n ‐ 12 ‐ \\n \\n\\n 1 To meet the minimum contacts requirement, ʺthe defendantʹs suit‐related \\n\\n 2 conduct must create a substantial connection with the forum Stateʺ ‐‐ that is, the \\n\\n 3 ʺdefendant [it]selfʺ must create those contacts, and those contacts must be with \\n\\n 4 the ʺforum State itself,ʺ not simply with persons who reside there. Walden v. \\n\\n 5 Fiore, 134 S. Ct. 1115, 1121‐22 (2014) (citation omitted). Thus, although a \\n\\n 6 defendantʹs contacts with the forum state may be ʺintertwined with [its] \\n\\n 7 transactions or interactions with the plaintiff or other parties . . .[,] a defendantʹs \\n\\n 8 relationship with a . . . third party, standing alone, is an insufficient basis for \\n\\n 9 jurisdiction.ʺ Id. at 1123; see also Bristol‐Myers Squibb, 137 S. Ct. at 1783 (2017) \\n\\n10 (same). It is “insufficient to rely on a defendantʹs random, fortuitous, or \\n\\n11 attenuated contacts or on the unilateral activity of a plaintiff with the forum to \\n\\n12 establish specific jurisdiction.” Waldman v. Palestine Liberation Org., 835 F.3d 317, \\n\\n13 337 (2d Cir. 2016) (quoting Walden, 134 S. Ct. at 1123) (internal quotation marks \\n\\n14 omitted). \\n\\n15 Nor is it sufficient for a plaintiff to show simply that a defendantʹs actions \\n\\n16 caused an ʺeffectʺ in the forum state where the defendant has not ʺexpressly \\n\\n17 aimed its conduct at the forum.ʺ Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, \\n\\n18 732 F.3d 161, 173 (2d Cir. 2013). And “mere injury to a forum resident” is \\n\\n\\n\\n ‐ 13 ‐ \\n \\n\\n 1 insufficient. Walden, 134 S. Ct. at 1125; see also SongByrd, 206 F.3d at 181 (rejecting \\n\\n 2 specific personal jurisdiction over a defendant even if defendant’s action could \\n\\n 3 be viewed as a “but for” cause of relevant events in forum state); accord Noboa v. \\n\\n 4 Barceló Corporación Empresarial, SA, 812 F.3d 571, 572 (7th Cir. 2016) (“[T]he \\n\\n 5 pertinent question is whether the defendant has links to the jurisdiction in which \\n\\n 6 the suit was filed, not whether the plaintiff has such links ‐‐ or whether the loss \\n\\n 7 flowed through a causal chain from the plaintiffʹs contacts with the jurisdiction of \\n\\n 8 suit.ʺ). Similarly, “the fact that harm in the forum is foreseeable . . . is insufficient \\n\\n 9 for the purpose of establishing specific personal jurisdiction over a defendant.” \\n\\n10 In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 674 (2d Cir. 2013). \\n\\n11 Where the underlying dispute involves a contract, we use a ʺhighly \\n\\n12 realisticʺ approach and evaluate factors such as “prior negotiations and \\n\\n13 contemplated future consequences, along with the terms of the contract and the \\n\\n14 partiesʹ actual course of dealing.” Burger King, 471 U.S. at 479. \\n\\n15 At the second step, we must be satisfied that “the litigation results from \\n\\n16 alleged injuries that ‘arise out of or relate to’ those activities.” Id. at 472 (quoting \\n\\n17 Helicopteros, 466 U.S. at 414). We have found that a claim arises out of forum \\n\\n18 contacts when defendant’s allegedly culpable conduct involves at least in part \\n\\n\\n\\n ‐ 14 ‐ \\n \\n\\n 1 financial transactions that touch the forum. Licci, 732 F.3d at 169‐70. And finally, \\n\\n 2 for the third step, once it is established that the defendant has minimum contacts \\n\\n 3 with the forum and the cause of action relates to or arises from those contacts, “a \\n\\n 4 court considers those contacts ʹin light of other factors to determine whether the \\n\\n 5 assertion of personal jurisdiction would comport with fair play and substantial \\n\\n 6 justice.ʹʺ Charles Schwab, 883 F.3d at 82 (quoting Licci, 732 F.3d at 170).5 \\n\\n 7 2. Application \\n\\n 8 We conclude that Plaintiff met the requirements summarized above for \\n\\n 9 establishing specific Indiana jurisdiction over Defendant in this case. The central \\n\\n10 tenets of Plaintiff’s theory of liability are that (i) Defendant breached \\n\\n11 Representation No. 8 of the MLPA that there were no restrictions on the use of \\n\\n12 the Indiana Property that would interfere with the mortgagor’s ability to make \\n\\n13 its payments or adversely affect the value of the Property and (ii) Defendant \\n\\n14 failed to comply with its contractual commitment to cure the breach. The \\n\\n\\n \\n 5 Under the reasonableness inquiry, we evaluate the following factors: (1) the \\n burden on the defendant, (2) the interests of the forum state, (3) the plaintiffʹs interest in \\n obtaining relief, (4) the ʺinterstate judicial systemʹs interest in obtaining the most \\n efficient resolution of controversies,ʺ and (5) ʺthe shared interests of the several States in \\n furthering fundamental substantive social policies.ʺ Asahi, 480 U.S. at 113 (citations \\n omitted). Although we consider a variety of factors, ʺthe ʹprimary concernʹ is ʹthe \\n burden on the defendant.ʹʺ Bristol‐Myers Squibb, 137 S. Ct. at 1780 (quoting World‐Wide \\n Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). \\n ‐ 15 ‐ \\n \\n\\n 1 restrictions imposed by the Hospital included the clause forbidding use of the \\n\\n 2 Property except for in a specified manner (which allegedly prevented the \\n\\n 3 mortgagor from obtaining a new tenant and thus caused it to default on payment \\n\\n 4 of the Loan), as well as the right of first refusal in favor of the Hospital (which \\n\\n 5 allegedly interfered with the mortgagor’s ability to pay the Loan and adversely \\n\\n 6 affected the value of the Property). Plaintiff alleges that Bank of America then \\n\\n 7 breached its commitments under Section 3(c) of the MLPA to either “cure such . . \\n\\n 8 . Breach . . . or, if such . . . Breach . . . cannot be cured, [to] (i) repurchase the \\n\\n 9 affected Mortgage Loan at the applicable Purchase Price . . . or (ii) substitute a \\n\\n10 Qualified Substitute Mortgage Loan for such affected Mortgage Loan . ” App. At \\n\\n11 79. Bank of America’s obligation to “cure” the breach, according to Plaintiff’s \\n\\n12 theory, required it, among other possibilities, to perform some act in Indiana \\n\\n13 such as obtaining the Indiana Hospital’s consent to relinquish the deed \\n\\n14 restrictions that prevented the mortgagor from meeting its Loan obligations. \\n\\n15 Defendant’s alleged breach of its contractual representations involved the \\n\\n16 existence of restrictions on the use and value of Indiana Property. In addition, the \\n\\n17 obligations expressly undertaken by Defendant under the MLPA were \\n\\n18 purposefully directed toward residents of Indiana, and the suit arose from and \\n\\n\\n\\n ‐ 16 ‐ \\n \\n\\n 1 related directly to those Indiana contacts. In view of Defendant’s undertaking of \\n\\n 2 those commitments in the terms of the contract here in question, we see no \\n\\n 3 reason why obliging Defendant to litigate this claim in Indiana would offend \\n\\n 4 traditional notions of fair play or substantial justice, or be unreasonable. \\n\\n 5 II. Was the New York District Court Correct to Deny Plaintiff’s Motion to \\n\\n 6 Retransfer? \\n\\n 7 Plaintiff contends that if, as we have concluded, Bank of America was \\n\\n 8 subject to personal jurisdiction in the Indiana court, the Indiana court could not \\n\\n 9 lawfully transfer the venue of the action to New York under § 1631, because that \\n\\n10 statute authorizes transfer only for “want of jurisdiction.” Plaintiff contends \\n\\n11 accordingly that the New York district court should have granted its motion to \\n\\n12 send the case back to Indiana and that we should direct that this be done. We \\n\\n13 disagree. \\n\\n14 Such a ruling would fail to heed the Supreme Court’s sagacious warning in \\n\\n15 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988). Confronting a \\n\\n16 similar circumstance, the Court cautioned, ʺ[T]ransferee courts that feel entirely \\n\\n17 free to revisit transfer decisions of a coordinate court threaten to send litigants \\n\\n18 into a vicious circle of litigation,ʺ culminating in a ʺperpetual game of \\n\\n\\n\\n ‐ 17 ‐ \\n \\n\\n 1 jurisdictional ping‐pong.ʺ Id. at 816, 818. Although Christianson differed slightly \\n\\n 2 in that the potentially dueling transfer orders were entered by coordinate courts of \\n\\n 3 appeals, as opposed to a court of appeals reviewing of a transfer order of a district \\n\\n 4 court in another circuit, that distinction does not lessen the pertinence or \\n\\n 5 importance of the Supreme Court’s observation. \\n\\n 6 If we were to direct that the case be retransferred to Indiana, eventual \\n\\n 7 review by the Seventh Circuit might well result in a ruling that that circuit, and \\n\\n 8 not ours, is authoritative on the reach of jurisdiction of the Indiana courts, a \\n\\n 9 reaffirmance of the Indiana district court’s original ruling that Bank of America is \\n\\n10 not subject to personal jurisdiction in Indiana, and a reinstitution of the original \\n\\n11 transfer to the district court in New York. Whether and where it would end \\n\\n12 could not be predicted. Such a scenario would be intolerable. Regardless of \\n\\n13 which court is correct in its appraisal of the jurisdiction question, such a duel \\n\\n14 between courts of transfers and retransfers would subject the parties to \\n\\n15 unacceptably mounting expenses and delays. If such occurs, the federal court \\n\\n16 system abjectly fails to perform its mission of deciding cases with reasonable \\n\\n17 speed and efficiency at reasonable cost to the parties. \\n\\n\\n\\n\\n ‐ 18 ‐ \\n \\n\\n 1 The New York district court was sensitive to the Supreme Court’s warning \\n\\n 2 in rejecting Plaintiff’s motion for retransfer to Indiana. Citing Christianson, it \\n\\n 3 ruled that it would treat the Indiana court’s transfer of venue as the law of the \\n\\n 4 case. It reviewed the Indiana court’s decision with respect to the absence of \\n\\n 5 personal jurisdiction over Defendant in Indiana to the extent of ruling that it \\n\\n 6 found no clear error in that ruling, and thus denied the motion. While we are not \\n\\n 7 in complete agreement with the New York district court’s ruling (as explained \\n\\n 8 below) we entirely approve of its rejection of the motion to retransfer to Indiana. \\n\\n 9 Arguably, the standard for this court’s review of a transfer order of a \\n\\n10 district court in a different circuit differs from the standard to be exercised by the \\n\\n11 transferee district court. As we noted in SongByrd, 206 F.3d at 178 n.7, it would \\n\\n12 be rare for the doctrine of the law of the case to commit a higher court to adhere \\n\\n13 to a ruling of a lower court. Nonetheless, as noted above, for this court to require \\n\\n14 retransfer to the Indiana district court based on our conclusion that the Indiana \\n\\n15 court erred would give rise to the same unacceptable use of the parties as a ping‐\\n\\n16 pong ball as if the retransfer order were made by the transferee district court. \\n\\n17 Plaintiff has not shown that litigating in New York would subject it to any great \\n\\n18 inconvenience or unfairness. Allowing the case to remain in the Southern District \\n\\n\\n\\n ‐ 19 ‐ \\n \\n\\n 1 of New York, notwithstanding that the Indiana court’s transfer order was based \\n\\n 2 on a mistake of law, is a far lesser evil than subjecting the parties to the further \\n\\n 3 expense and delay of a retransfer, with the attendant risk of still further rounds \\n\\n 4 of transfers. \\n\\n 5 Because the transfer of venue was not available under § 1631, which \\n\\n 6 authorizes transfers only for want of jurisdiction, we think it is our best course to \\n\\n 7 treat the erroneous § 1631 transfer as a transfer under 28 U.S.C. § 1404(a) “[f]or \\n\\n 8 the convenience of [the] parties and witnesses, in the interest of justice.”6 The \\n\\n 9 interest of justice and the convenience of the parties are served by a transfer \\n\\n10 under § 1404(a) in that it spares the parties from the intolerable expenses, delays, \\n\\n11 and attendant burdens that would result from having the case batted back and \\n\\n\\n\\n\\n \\n 6 “For the convenience of parties and witnesses, in the interest of justice, a district court \\n\\n may transfer any civil action to any other district or division where it might have been \\n brought or to any district or division to which all parties have consented.” 28 U.S.C. \\n § 1404(a). While the Indiana district court expressly relied on § 1631 as authority for the \\n transfer, see U.S. Bank Nat’l Ass’n v. Bank of America N.A., No. 1:14‐cv‐01492, 2015 WL \\n 5971126, at *10 (S.D. Ind. Oct. 14, 2015) (“[T]he Court concludes that it does not have \\n personal jurisdiction over Bank of America. As a result, the Court TRANSFERS this \\n case to the Southern District of New York, pursuant to 28 U.S.C. § 1631.”), the court also \\n observed, although making no findings relating to the convenience of the parties and \\n witnesses or the interest of justice, that transfer would also be appropriate under \\n § 1404(a). Id. \\n ‐ 20 ‐ \\n \\n\\n 1 forth from district to district, and that it positions a court to fulfill the mission of \\n\\n 2 the judicial system by deciding the case. \\n\\n 3 The New York district court denied the Plaintiff’s motion to retransfer on \\n\\n 4 the ground that the Indiana court’s transfer under § 1631 for want of jurisdiction \\n\\n 5 was not clearly erroneous. We see the issue somewhat differently. To say that the \\n\\n 6 Indiana court’s transfer order was not clearly erroneous does not say it was not \\n\\n 7 erroneous. Because Bank of America was subject to personal jurisdiction in the \\n\\n 8 Indiana court, that court’s transfer of venue under § 1631 was not in accordance \\n\\n 9 with law. Nonetheless, transfer of venue to the Southern District of New York \\n\\n10 would have been appropriate under § 1404(a). Giving regard to Plaintiff’s failure \\n\\n11 to show that it would suffer great harm in being compelled to litigate its case in \\n\\n12 New York instead of in the forum it chose, the unjust burdens that the courts \\n\\n13 would inflict on the parties by shuttling them back and forth between Indiana \\n\\n14 and New York, and the Supreme Court’s warnings in Christianson, we find it \\n\\n15 preferable to affirm the New York district court’s denial of retransfer on a \\n\\n16 different basis than that court relied on. Accordingly, we affirm the New York \\n\\n17 district court’s denial of Plaintiff’s motion for retransfer to Indiana, treating the \\n\\n\\n\\n\\n ‐ 21 ‐ \\n \\n\\n 1 Indiana transfer order as if issued under § 1404(a) and finding such a transfer to \\n\\n 2 be lawful. \\n\\n 3 III. Did the New York District Court Err in Granting Defendant’s Motion for \\n\\n 4 Judgment on the Pleadings under Rule 12(c)? \\n\\n 5 In denying Plaintiff’s motion to retransfer to Indiana, the New York \\n\\n 6 district court treated the Indiana court’s transfer order as lawful and efficacious \\n\\n 7 not only as a transfer of venue to New York, but also as a determination that \\n\\n 8 Bank of America was not subject to personal jurisdiction in the Indiana court and \\n\\n 9 that the case would accordingly be decided under the laws of New York, the \\n\\n10 transferee state. The court explained, “If a district court receives a case pursuant \\n\\n11 to a transfer under . . . 28 U.S.C. § 1631, for want of jurisdiction, it logically \\n\\n12 applies the law of the state in which it sits, since the original venue, with its \\n\\n13 governing laws, was never a proper option.” U.S. Bank Nat’l Ass’n v. Bank of \\n\\n14 America N.A., No. 15 Civ. 8153, 2016 WL 5118298, at *12 (S.D.N.Y. Sept. 20, 2016) \\n\\n15 (quoting Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010)). While we agree with \\n\\n16 that proposition, we find it has no application to this case because, in our view, \\n\\n17 Bank of America was subject to personal jurisdiction in the Indiana district court, \\n\\n18 and the original venue, with its governing laws, was a proper option. While we \\n\\n\\n\\n ‐ 22 ‐ \\n \\n\\n 1 affirm the New York district court’s denial of Plaintiff’s motion to retransfer to \\n\\n 2 Indiana, we do not affirm the propriety of the original transfer for want of \\n\\n 3 jurisdiction under § 1631. We instead affirm the transfer as if made under § 1404(a) \\n\\n 4 by a court that had jurisdiction of the case. \\n\\n 5 A transfer under § 1404(a) by a court that has jurisdiction of the case has \\n\\n 6 different consequences from a transfer under § 1631 by a court that lacks \\n\\n 7 jurisdiction of the case. Transfers under § 1404(a) by a court that has jurisdiction \\n\\n 8 are adjudicated in the transferee state under the law of the transferor state. This \\n\\n 9 is to avoid the unfairness of having a discretionary transfer done for convenience \\n\\n10 change the law under which the case will be decided. See Van Dusen v. Barrack, \\n\\n11 376 U.S. 612, 633‐34 (1964); 17 Moore’s Federal Practice § 111.20[1][b] (3d ed. \\n\\n12 2018) (“[W]hen a case is transferred under Section 1404(a), Van Dusen requires \\n\\n13 the same choice of law analysis that would have been applied in the transferor \\n\\n14 court to be conducted in the transferee court, which may require the transferee \\n\\n15 court to apply its own law, the law of the transferor court, or some other state’s \\n\\n16 law.”). \\n\\n17 Under the New York district court’s analysis, Indiana’s 10‐year statute of \\n\\n18 limitations and its choice of law rules had no pertinence because the case was \\n\\n\\n\\n ‐ 23 ‐ \\n \\n\\n 1 never properly lodged in the Indiana court. The transfer under § 1631 to New \\n\\n 2 York mandated the application of New York’s six‐year statute of limitations, \\n\\n 3 under which the suit was untimely. Our disposition requires that the New York \\n\\n 4 district court treat the case as one properly filed in Indiana, applying Indiana’s \\n\\n 5 choice of law rules to determine whether the suit was timely filed. We therefore \\n\\n 6 vacate the New York district court’s grant of Bank of America’s motion for \\n\\n 7 judgment on the pleadings. We express no view on the question whether the suit \\n\\n 8 was timely filed, when that question is judged under Indiana’s choice‐of‐law \\n\\n 9 rules, as appropriate for a suit properly brought in Indiana and subsequently \\n\\n10 transferred to New York under § 1404(a). \\n\\n11 IV. Response to Judge Chin’s Concurrence\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":498,"cells":{"id":{"kind":"number","value":4591187,"string":"4,591,187"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Harnage v. Lightner"},"decision_date":{"kind":"string","value":"2019-02-15"},"docket_number":{"kind":"string","value":"18-1559-pr"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: CALABRESI, CABRANES, CHIN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Court for the District of Connecticut (Alvin W. Thompson, Judge)\", \"type\": \"010combined\", \"text\": \"18‐1559‐pr \\nHarnage v. Lightner \\n\\n\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n \\n \\n AUGUST TERM 2018 \\n \\n No. 18‐1559‐pr \\n \\n JAMES A. HARNAGE, \\n Plaintiff‐Appellant, \\n \\n v. \\n \\n RIKEL LIGHTNER, DR. WU, DR. PILLAI, DR. O’HALLARAN, DR. NAGVI, \\nP.A. KEVIN MCCHRYSTAL, P.A. ROB, L.P.N. FRANCIS, LISA CALDONERO, \\n NURSE CAROLINE, NURSE NIKKI, RN HEIDI GREENE, NURSE MARISSA, \\n NURSE MIYA, NURSE JAMES, DR. DAVID M. GILES, SURGICAL INTERN \\n SHARI, JANE DOES, 1‐5, JOHN DOES, 1‐5, \\n \\n Defendants‐Appellees.* \\n \\n \\n On Appeal from the United States District Court \\n for the District of Connecticut \\n \\n \\n SUBMITTED: JANUARY 28, 2019 \\n DECIDED: FEBRUARY 15, 2019 \\n\\n \\n The Clerk of Court is directed to amend the caption as set forth above. \\n\\f \\n \\nBefore: CALABRESI, CABRANES, CHIN, Circuit Judges.\\n\\n \\n\\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \\nappeals from a May 1, 2018 judgment of the United States District \\nCourt for the District of Connecticut (Alvin W. Thompson, Judge) \\ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \\nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \\nconclude that the amended complaint substantially complies with \\nRules 8 and 20. We agree, however, that the complaint fails to state a \\nclaim against three defendants. We therefore conclude that dismissal \\nwas improper except with respect to those three defendants. \\nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \\nIN PART. \\n \\n\\n James A. Harnage, Suffield, CT, pro se, for \\n Plaintiff‐Appellant. \\n\\n No appearance, for Defendants‐Appellees. \\n\\n \\n\\nPER CURIAM: \\n\\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \\nappeals from a May 1, 2018 judgment of the United States District \\n\\n\\n\\n\\n 2 \\n\\fCourt for the District of Connecticut (Alvin W. Thompson, Judge) \\ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \\nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \\nconclude that the amended complaint substantially complies with \\nRules 8 and 20. We agree, however, that the complaint fails to state a \\nclaim against three defendants. We therefore conclude that dismissal \\nwas improper except with respect to those three defendants. \\nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \\nIN PART. \\n\\n I. BACKGROUND \\n\\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \\nappeals the District Court’s dismissal of his 42 U.S.C. § 1983 claims \\nagainst various medical personnel at the University of Connecticut \\nHealth Center and the MacDougall‐Walker Correctional Institution \\n(where he is currently incarcerated) for failure to adequately treat a \\nhealth condition. After granting Harnage an opportunity to amend, \\nthe District Court sua sponte dismissed the amended complaint with \\nprejudice under 28 U.S.C. § 1915A1 for failure to comply with Rules 8 \\nand 20. \\n\\n\\n\\n\\n 1 Under 28 U.S.C. § 1915A(a), a district court “shall review . . . a complaint \\nin a civil action in which a prisoner seeks redress from a governmental entity or \\nofficer or employee of a governmental entity.” Upon such review, the district court \\nshall dismiss a complaint or any portion thereof that “is frivolous, malicious, or \\nfails to state a claim upon which relief may be granted” or “seeks monetary relief \\nfrom a defendant who is immune from such relief.” Id. § 1915A(b). \\n\\n\\n\\n\\n 3 \\n\\f II. DISCUSSION \\n\\n A. Standard of Review \\n\\n We review de novo a district court’s dismissal of a complaint \\nunder 28 U.S.C. § 1915A.2 McEachin v. McGuinnis, 357 F.3d 197, 200 (2d \\nCir. 2004). In reviewing such dismissals, we “accept all of the facts \\nalleged in the complaint as true and draw all inferences in the \\nplaintiff’s favor.” Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). “We \\nmust reverse a district court’s dismissal pursuant to § 1915A whenever \\na liberal reading of the complaint gives any indication that a valid \\nclaim might be stated.” Id. \\n \\n B. Rule 8 \\n\\n While we construe pro se pleadings liberally, “the basic \\nrequirements of Rule 8 apply to self‐represented and counseled \\n\\n\\n 2 While it is well‐established that dismissal under § 1915A for failure to state \\na claim is reviewed de novo, we have yet to enunciate a standard for reviewing a \\ndismissal under § 1915A for failure to comply with Rules 8 and 20. See Shomo v. New \\nYork, 374 F. App’x 180, 182 (2d Cir. 2010) (summary order). Just as whether a \\ncomplaint’s allegations state a claim is a question of law, so too is a complaint’s \\nadherence to the Federal Rules of Civil Procedure. We therefore review a district \\ncourt’s sua sponte dismissal under § 1915A for failure to comply with Rules 8 and \\n20 de novo. Of course, assuming that the district court has correctly concluded that \\na complaint fails to comply with Rules 8 and 20, its chosen remedy—that is, its \\ndecision to dismiss the complaint or otherwise grant leave to amend—is reviewed \\nfor abuse of discretion. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (“As \\na general matter . . . the district court has discretion whether or not to grant leave \\nto amend, and its decision is not subject to review on appeal except for abuse of \\ndiscretion.” (internal quotation marks and brackets omitted)). \\n\\n\\n\\n\\n 4 \\n\\fplaintiffs alike.” Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. \\n2004). Under Rule 8, a pleading must contain “a short and plain \\nstatement of the claim showing that the pleader is entitled to relief.” \\nFed. R. Civ. P. 8(a)(2). To satisfy this standard, the complaint must at \\na minimum “disclose sufficient information to permit the defendant \\nto have a fair understanding of what the plaintiff is complaining \\nabout and to know whether there is a legal basis for recovery.” Kittay \\nv. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (internal quotation marks \\nomitted). \\n \\n “When a complaint does not comply with the requirement that \\nit be short and plain, the court has the power, on its own initiative or \\nin response to a motion by the defendant, to strike any portions that \\nare redundant or immaterial, or to dismiss the complaint.” \\nSalahuddin, 861 F.2d at 42 (internal citation omitted). But “[d]ismissal \\n. . . is usually reserved for those cases in which the complaint is so \\nconfused, ambiguous, vague, or otherwise unintelligible that its true \\nsubstance, if any, is well disguised.” Id. \\n \\n Here, the District Court dismissed Harnage’s amended \\ncomplaint for failing to adequately put the defendants on notice of the \\nclaims specifically asserted against each of them. The District Court \\ndescribed the allegations set forth in the amended complaint as \\n“general complaints of lack of medical treatment or lack of effective \\nmedical treatment” that “fail to include any definite or specific dates \\non which requests for medical treatment or services or requests to \\nfacilitate medical treatment were made, any dates on which a \\n\\n\\n\\n\\n 5 \\n\\fdefendant allegedly denied or ignored requests for treatment or \\nservices or any dates on which a defendant allegedly responded to a \\nrequest for treatment, met with the plaintiff in connection with a \\nmedical appointment or offered treatment for the plaintiff’s \\nconditions.” See Harnage v. Lightner, No. 3:16cv1576(AWT), Dkt. No. 15 \\n(“Ruling and Order”), at 6. \\n \\n We conclude that, despite these shortcomings, the amended \\ncomplaint substantially complies with Rule 8. Liberally construed, the \\namended complaint identifies discrete defendants and the actions \\ntaken by these defendants that purportedly violated Harnage’s Eighth \\nAmendment rights. To wit, Harnage repeatedly sought treatment \\nfrom MacDougall‐Walker medical staff members including: Dr. Pillai, \\nDr. O’Hallaran, Dr. Nagvi, P.A. Kevin McChrystal, P.A. Rob, Lisa \\nCaldonero, Nurse Caroline, Nurse Nikki, Nurse Marissa, Nurse Miya, \\nNurse James, Janes 1‐5, and Johns 1‐5. He alleges that he failed to \\n“receive effective or proper medical treatment for his constipation” \\nfrom these defendants. See Harnage v. Lightner, No. 3:16cv1576(AWT), \\nDkt. No. 11 (“Am. Compl.”), ¶¶ 25, 27. These defendants also allegedly \\nfailed to provide Harnage with the prescriptions he had been \\npromised, or refills thereof. Id. ¶ 28. According to the amended \\ncomplaint, it was due to these defendants’ “deliberate indifference to \\n[his] serious medical needs”—as evidenced by their failure to ever \\nexamine Harnage prior to January 2014—that Harnage’s condition \\ndeteriorated. Id. ¶ 29. The amended complaint further alleges that \\ndefendant Rikel Lightner repeatedly ignored Harnage’s requests to \\ncorrect the facility’s medical deficiencies. Id. ¶ 41. Finally, with respect \\n\\n\\n\\n\\n 6 \\n\\fto Lisa Caldonero, L.P.N. Francis, P.A. Rob, RN Heidi Greene, and \\nJane 1, the amended complaint alleges that these defendants imposed \\nconditions on the plaintiff beyond what was authorized by \\nAdministrative Directive 8.9, which in turn made it more difficult for \\nHarnage to file Health Services Reviews in connection with this \\ncondition. Id. ¶ 44. \\n \\n In addition, we note that the failure to allege specific dates does \\nnot necessarily run afoul of Rule 8, especially where, as here, the \\nplaintiff lacks ready access to his medical records. See McEachin, 357 \\nF.3d at 201 (“Our reluctance to dismiss these complaints at such an \\nearly stage of the proceedings stems in part from the limited . . . \\nresources available to pro se plaintiffs, which may hamper their ability \\nto articulate potentially valid claims . . . .”). \\n \\n In sum, while Harnage’s amended complaint may not represent \\nthe paradigm of notice pleading, it is not the incomprehensible \\n“labyrinthian prolixity of unrelated and vituperative charges” that \\nRule 8 was intended to curb. Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. \\n1972). Because “sua sponte dismissal of pro se prisoner petitions which \\ncontain non‐frivolous claims . . . is disfavored by this Court,” \\nMcEachin, 357 F.3d at 200 (internal quotation marks and brackets \\nomitted), and because Harnage’s complaint—liberally construed—\\nsubstantially complies with Rule 8, we vacate the District Court’s \\njudgment insofar as it dismisses the amended complaint on this basis.3 \\n\\n We are mindful that the District Court has already afforded Harnage an \\n 3\\n\\nopportunity to amend his complaint and has twice provided advice for how to \\n\\n\\n\\n\\n 7 \\n\\f C. Rule 20 \\n\\n Rule 20 permits joinder of multiple defendants if “any right to \\nrelief is asserted against them jointly, severally, or in the alternative \\nwith respect to or arising out of the same transaction, occurrence, or \\nseries of transactions and occurrences” and “any questions of law or \\nfact common to all defendants will arise in the action.” Fed. R. Civ. P. \\n20(a)(2). \\n \\n We disagree with the District Court’s conclusion that Harnage’s \\ncomplaint asserts more than one distinct claim against multiple \\ndefendants. The amended complaint alleges that the defendants’ \\nactions (or inaction) individually and cumulatively resulted in the \\ndenial of adequate medical care for Harnage’s hemorrhoid condition \\nprior to his first surgery. These allegations are thus sufficiently related \\nto constitute a “series of transactions and occurrences.” Moreover, the \\nquestion of whether Harnage was denied proper medical care in \\nviolation of the Eighth Amendment is clearly a common question of \\n\\ncomply with Rule 8. But we do not agree with the District Court’s conclusion that \\nHarnage failed to comply with its prior orders. In its Initial Review Order, for \\nexample, the District Court took issue with the complaint’s general references to \\nthe “MacDougall defendants” and the “UCONN defendants,” explaining that these \\n“general allegations are not sufficient to put any [individual] defendant on notice \\nof the claims specifically asserted against him or her.” Harnage v. Lightner, No. \\n3:16cv1576(AWT), Dkt. No. 7, at 4. In the amended complaint, by contrast, Harnage \\nattempts to remedy this issue by specifically naming the medical staff members \\nfrom whom he sought treatment for his condition. See Am. Compl. ¶¶ 25, 33, 44. \\nMoreover, none of the District Court’s prior guidance regarding Rule 8 gave the \\ndefendant notice that he would face dismissal with prejudice if he failed to specify \\nthe dates of the alleged omissions or acts perpetrated by the named defendants. \\n\\n\\n\\n\\n 8 \\n\\flaw, if not also fact, with respect to the named defendants. Thus, even \\nthough Harnage’s allegations span several years and invoke several \\ndefendants, they all arise from the alleged failure of the named \\ndefendants to adequately treat Harnage’s hemorrhoid condition \\nbefore his first surgery.4 \\n\\n D. Failure to State a Claim \\n\\n The District Court correctly concluded that the amended \\ncomplaint fails to allege any wrongdoing by three named defendants: \\nSurgical Intern Shari, Dr. Wu, and Dr. Giles. Accordingly, we affirm \\nthe District Court’s dismissal of the complaint as to those three \\ndefendants. \\n\\n\\n\\n\\n The District Court overstates the degree to which the amended complaint \\n 4\\n\\nexceeds its prescribed scope. See Ruling and Order, at 4. While paragraph 50 of \\nHarnage’s amended complaint does reference a second hemorrhoid surgery in \\nearly 2016, the remainder of his claims are plainly directed toward the inadequate \\ntreatment he received before his first surgery, between August 2012 and October \\n2014. See Am. Compl. ¶ 34 (claiming that he endured needless suffering for a period \\nof “more than 24 months,” i.e., from August 2012 to October 2014). Read in context, \\nthe single reference to the 2016 surgery simply serves to underscore the gravity of \\nHarnage’s medical condition; it does not expand the scope of the complaint beyond \\nthe approximately 24‐month period preceding his first hemorrhoid surgery. \\n\\n\\n\\n\\n 9 \\n\\f III. CONCLUSION \\n\\n To summarize: We hold that Harnage’s amended complaint \\nsubstantially complies with Federal Rules of Civil Procedure 8 and 20. \\nWe agree, however, that the amended complaint fails to state a claim \\nagainst Surgical Intern Shari, Dr. Wu, and Dr. Giles. \\n\\n For the foregoing reasons, we AFFIRM the District Court’s \\ndismissal of Surgical Intern Shari, Dr. Wu, and Dr. Giles for failure to \\nstate a claim, and VACATE AND REMAND the remainder of the May \\n1, 2018 judgment for further proceedings consistent with this opinion. \\n\\n \\n\\n\\n\\n\\n 10\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368440/\", \"author_raw\": \"Court for the District of Connecticut (Alvin W. Thompson, Judge)\"}]}"},"judge1":{"kind":"string","value":"CALABRESI"},"judge2":{"kind":"string","value":"CABRANES"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"CALABRESI\": \", Circuit\", \"CABRANES\": \", Circuit\", \"CHIN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591187/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Harnage v. Lightner\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐1559‐pr \nHarnage v. Lightner \n\n\n\n\n In the\n United States Court of Appeals\n for the Second Circuit\n \n \n AUGUST TERM 2018 \n \n No. 18‐1559‐pr \n \n JAMES A. HARNAGE, \n Plaintiff‐Appellant, \n \n v. \n \n RIKEL LIGHTNER, DR. WU, DR. PILLAI, DR. O’HALLARAN, DR. NAGVI, \nP.A. KEVIN MCCHRYSTAL, P.A. ROB, L.P.N. FRANCIS, LISA CALDONERO, \n NURSE CAROLINE, NURSE NIKKI, RN HEIDI GREENE, NURSE MARISSA, \n NURSE MIYA, NURSE JAMES, DR. DAVID M. GILES, SURGICAL INTERN \n SHARI, JANE DOES, 1‐5, JOHN DOES, 1‐5, \n \n Defendants‐Appellees.* \n \n \n On Appeal from the United States District Court \n for the District of Connecticut \n \n \n SUBMITTED: JANUARY 28, 2019 \n DECIDED: FEBRUARY 15, 2019 \n\n \n The Clerk of Court is directed to amend the caption as set forth above. \n\f \n \nBefore: CALABRESI, CABRANES, CHIN, Circuit Judges.\n\n \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals from a May 1, 2018 judgment of the United States District \nCourt for the District of Connecticut (Alvin W. Thompson, Judge) \ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \nconclude that the amended complaint substantially complies with \nRules 8 and 20. We agree, however, that the complaint fails to state a \nclaim against three defendants. We therefore conclude that dismissal \nwas improper except with respect to those three defendants. \nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \nIN PART. \n \n\n James A. Harnage, Suffield, CT, pro se, for \n Plaintiff‐Appellant. \n\n No appearance, for Defendants‐Appellees. \n\n \n\nPER CURIAM: \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals from a May 1, 2018 judgment of the United States District \n\n\n\n\n 2 \n\fCourt for the District of Connecticut (Alvin W. Thompson, Judge) \ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \nconclude that the amended complaint substantially complies with \nRules 8 and 20. We agree, however, that the complaint fails to state a \nclaim against three defendants. We therefore conclude that dismissal \nwas improper except with respect to those three defendants. \nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \nIN PART. \n\n I. BACKGROUND \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals the District Court’s dismissal of his 42 U.S.C. § 1983 claims \nagainst various medical personnel at the University of Connecticut \nHealth Center and the MacDougall‐Walker Correctional Institution \n(where he is currently incarcerated) for failure to adequately treat a \nhealth condition. After granting Harnage an opportunity to amend, \nthe District Court sua sponte dismissed the amended complaint with \nprejudice under 28 U.S.C. § 1915A1 for failure to comply with Rules 8 \nand 20. \n\n\n\n\n 1 Under 28 U.S.C. § 1915A(a), a district court “shall review . . . a complaint \nin a civil action in which a prisoner seeks redress from a governmental entity or \nofficer or employee of a governmental entity.” Upon such review, the district court \nshall dismiss a complaint or any portion thereof that “is frivolous, malicious, or \nfails to state a claim upon which relief may be granted” or “seeks monetary relief \nfrom a defendant who is immune from such relief.” Id. § 1915A(b). \n\n\n\n\n 3 \n\f II. DISCUSSION \n\n A. Standard of Review \n\n We review de novo a district court’s dismissal of a complaint \nunder 28 U.S.C. § 1915A.2 McEachin v. McGuinnis, 357 F.3d 197, 200 (2d \nCir. 2004). In reviewing such dismissals, we “accept all of the facts \nalleged in the complaint as true and draw all inferences in the \nplaintiff’s favor.” Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). “We \nmust reverse a district court’s dismissal pursuant to § 1915A whenever \na liberal reading of the complaint gives any indication that a valid \nclaim might be stated.” Id. \n \n B. Rule 8 \n\n While we construe pro se pleadings liberally, “the basic \nrequirements of Rule 8 apply to self‐represented and counseled \n\n\n 2 While it is well‐established that dismissal under § 1915A for failure to state \na claim is reviewed de novo, we have yet to enunciate a standard for reviewing a \ndismissal under § 1915A for failure to comply with Rules 8 and 20. See Shomo v. New \nYork, 374 F. App’x 180, 182 (2d Cir. 2010) (summary order). Just as whether a \ncomplaint’s allegations state a claim is a question of law, so too is a complaint’s \nadherence to the Federal Rules of Civil Procedure. We therefore review a district \ncourt’s sua sponte dismissal under § 1915A for failure to comply with Rules 8 and \n20 de novo. Of course, assuming that the district court has correctly concluded that \na complaint fails to comply with Rules 8 and 20, its chosen remedy—that is, its \ndecision to dismiss the complaint or otherwise grant leave to amend—is reviewed \nfor abuse of discretion. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (“As \na general matter . . . the district court has discretion whether or not to grant leave \nto amend, and its decision is not subject to review on appeal except for abuse of \ndiscretion.” (internal quotation marks and brackets omitted)). \n\n\n\n\n 4 \n\fplaintiffs alike.” Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. \n2004). Under Rule 8, a pleading must contain “a short and plain \nstatement of the claim showing that the pleader is entitled to relief.” \nFed. R. Civ. P. 8(a)(2). To satisfy this standard, the complaint must at \na minimum “disclose sufficient information to permit the defendant \nto have a fair understanding of what the plaintiff is complaining \nabout and to know whether there is a legal basis for recovery.” Kittay \nv. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (internal quotation marks \nomitted). \n \n “When a complaint does not comply with the requirement that \nit be short and plain, the court has the power, on its own initiative or \nin response to a motion by the defendant, to strike any portions that \nare redundant or immaterial, or to dismiss the complaint.” \nSalahuddin, 861 F.2d at 42 (internal citation omitted). But “[d]ismissal \n. . . is usually reserved for those cases in which the complaint is so \nconfused, ambiguous, vague, or otherwise unintelligible that its true \nsubstance, if any, is well disguised.” Id. \n \n Here, the District Court dismissed Harnage’s amended \ncomplaint for failing to adequately put the defendants on notice of the \nclaims specifically asserted against each of them. The District Court \ndescribed the allegations set forth in the amended complaint as \n“general complaints of lack of medical treatment or lack of effective \nmedical treatment” that “fail to include any definite or specific dates \non which requests for medical treatment or services or requests to \nfacilitate medical treatment were made, any dates on which a \n\n\n\n\n 5 \n\fdefendant allegedly denied or ignored requests for treatment or \nservices or any dates on which a defendant allegedly responded to a \nrequest for treatment, met with the plaintiff in connection with a \nmedical appointment or offered treatment for the plaintiff’s \nconditions.” See Harnage v. Lightner, No. 3:16cv1576(AWT), Dkt. No. 15 \n(“Ruling and Order”), at 6. \n \n We conclude that, despite these shortcomings, the amended \ncomplaint substantially complies with Rule 8. Liberally construed, the \namended complaint identifies discrete defendants and the actions \ntaken by these defendants that purportedly violated Harnage’s Eighth \nAmendment rights. To wit, Harnage repeatedly sought treatment \nfrom MacDougall‐Walker medical staff members including: Dr. Pillai, \nDr. O’Hallaran, Dr. Nagvi, P.A. Kevin McChrystal, P.A. Rob, Lisa \nCaldonero, Nurse Caroline, Nurse Nikki, Nurse Marissa, Nurse Miya, \nNurse James, Janes 1‐5, and Johns 1‐5. He alleges that he failed to \n“receive effective or proper medical treatment for his constipation” \nfrom these defendants. See Harnage v. Lightner, No. 3:16cv1576(AWT), \nDkt. No. 11 (“Am. Compl.”), ¶¶ 25, 27. These defendants also allegedly \nfailed to provide Harnage with the prescriptions he had been \npromised, or refills thereof. Id. ¶ 28. According to the amended \ncomplaint, it was due to these defendants’ “deliberate indifference to \n[his] serious medical needs”—as evidenced by their failure to ever \nexamine Harnage prior to January 2014—that Harnage’s condition \ndeteriorated. Id. ¶ 29. The amended complaint further alleges that \ndefendant Rikel Lightner repeatedly ignored Harnage’s requests to \ncorrect the facility’s medical deficiencies. Id. ¶ 41. Finally, with respect \n\n\n\n\n 6 \n\fto Lisa Caldonero, L.P.N. Francis, P.A. Rob, RN Heidi Greene, and \nJane 1, the amended complaint alleges that these defendants imposed \nconditions on the plaintiff beyond what was authorized by \nAdministrative Directive 8.9, which in turn made it more difficult for \nHarnage to file Health Services Reviews in connection with this \ncondition. Id. ¶ 44. \n \n In addition, we note that the failure to allege specific dates does \nnot necessarily run afoul of Rule 8, especially where, as here, the \nplaintiff lacks ready access to his medical records. See McEachin, 357 \nF.3d at 201 (“Our reluctance to dismiss these complaints at such an \nearly stage of the proceedings stems in part from the limited . . . \nresources available to pro se plaintiffs, which may hamper their ability \nto articulate potentially valid claims . . . .”). \n \n In sum, while Harnage’s amended complaint may not represent \nthe paradigm of notice pleading, it is not the incomprehensible \n“labyrinthian prolixity of unrelated and vituperative charges” that \nRule 8 was intended to curb. Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. \n1972). Because “sua sponte dismissal of pro se prisoner petitions which \ncontain non‐frivolous claims . . . is disfavored by this Court,” \nMcEachin, 357 F.3d at 200 (internal quotation marks and brackets \nomitted), and because Harnage’s complaint—liberally construed—\nsubstantially complies with Rule 8, we vacate the District Court’s \njudgment insofar as it dismisses the amended complaint on this basis.3 \n\n We are mindful that the District Court has already afforded Harnage an \n 3\n\nopportunity to amend his complaint and has twice provided advice for how to \n\n\n\n\n 7 \n\f C. Rule 20 \n\n Rule 20 permits joinder of multiple defendants if “any right to \nrelief is asserted against them jointly, severally, or in the alternative \nwith respect to or arising out of the same transaction, occurrence, or \nseries of transactions and occurrences” and “any questions of law or \nfact common to all defendants will arise in the action.” Fed. R. Civ. P. \n20(a)(2). \n \n We disagree with the District Court’s conclusion that Harnage’s \ncomplaint asserts more than one distinct claim against multiple \ndefendants. The amended complaint alleges that the defendants’ \nactions (or inaction) individually and cumulatively resulted in the \ndenial of adequate medical care for Harnage’s hemorrhoid condition \nprior to his first surgery. These allegations are thus sufficiently related \nto constitute a “series of transactions and occurrences.” Moreover, the \nquestion of whether Harnage was denied proper medical care in \nviolation of the Eighth Amendment is clearly a common question of \n\ncomply with Rule 8. But we do not agree with the District Court’s conclusion that \nHarnage failed to comply with its prior orders. In its Initial Review Order, for \nexample, the District Court took issue with the complaint’s general references to \nthe “MacDougall defendants” and the “UCONN defendants,” explaining that these \n“general allegations are not sufficient to put any [individual] defendant on notice \nof the claims specifically asserted against him or her.” Harnage v. Lightner, No. \n3:16cv1576(AWT), Dkt. No. 7, at 4. In the amended complaint, by contrast, Harnage \nattempts to remedy this issue by specifically naming the medical staff members \nfrom whom he sought treatment for his condition. See Am. Compl. ¶¶ 25, 33, 44. \nMoreover, none of the District Court’s prior guidance regarding Rule 8 gave the \ndefendant notice that he would face dismissal with prejudice if he failed to specify \nthe dates of the alleged omissions or acts perpetrated by the named defendants. \n\n\n\n\n 8 \n\flaw, if not also fact, with respect to the named defendants. Thus, even \nthough Harnage’s allegations span several years and invoke several \ndefendants, they all arise from the alleged failure of the named \ndefendants to adequately treat Harnage’s hemorrhoid condition \nbefore his first surgery.4 \n\n D. Failure to State a Claim \n\n The District Court correctly concluded that the amended \ncomplaint fails to allege any wrongdoing by three named defendants: \nSurgical Intern Shari, Dr. Wu, and Dr. Giles. Accordingly, we affirm \nthe District Court’s dismissal of the complaint as to those three \ndefendants. \n\n\n\n\n The District Court overstates the degree to which the amended complaint \n 4\n\nexceeds its prescribed scope. See Ruling and Order, at 4. While paragraph 50 of \nHarnage’s amended complaint does reference a second hemorrhoid surgery in \nearly 2016, the remainder of his claims are plainly directed toward the inadequate \ntreatment he received before his first surgery, between August 2012 and October \n2014. See Am. Compl. ¶ 34 (claiming that he endured needless suffering for a period \nof “more than 24 months,” i.e., from August 2012 to October 2014). Read in context, \nthe single reference to the 2016 surgery simply serves to underscore the gravity of \nHarnage’s medical condition; it does not expand the scope of the complaint beyond \nthe approximately 24‐month period preceding his first hemorrhoid surgery. \n\n\n\n\n 9 \n\f III. CONCLUSION \n\n To summarize: We hold that Harnage’s amended complaint \nsubstantially complies with Federal Rules of Civil Procedure 8 and 20. \nWe agree, however, that the amended complaint fails to state a claim \nagainst Surgical Intern Shari, Dr. Wu, and Dr. Giles. \n\n For the foregoing reasons, we AFFIRM the District Court’s \ndismissal of Surgical Intern Shari, Dr. Wu, and Dr. Giles for failure to \nstate a claim, and VACATE AND REMAND the remainder of the May \n1, 2018 judgment for further proceedings consistent with this opinion. \n\n \n\n\n\n\n 10\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Harnage v. Lightner\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n18‐1559‐pr \\nHarnage v. Lightner \\n\\n\\n\\n\\n In the\\n United States Court of Appeals\\n for the Second Circuit\\n \\n \\n AUGUST TERM 2018 \\n \\n No. 18‐1559‐pr \\n \\n JAMES A. HARNAGE, \\n Plaintiff‐Appellant, \\n \\n v. \\n \\n RIKEL LIGHTNER, DR. WU, DR. PILLAI, DR. O’HALLARAN, DR. NAGVI, \\nP.A. KEVIN MCCHRYSTAL, P.A. ROB, L.P.N. FRANCIS, LISA CALDONERO, \\n NURSE CAROLINE, NURSE NIKKI, RN HEIDI GREENE, NURSE MARISSA, \\n NURSE MIYA, NURSE JAMES, DR. DAVID M. GILES, SURGICAL INTERN \\n SHARI, JANE DOES, 1‐5, JOHN DOES, 1‐5, \\n \\n Defendants‐Appellees.* \\n \\n \\n On Appeal from the United States District Court \\n for the District of Connecticut \\n \\n \\n SUBMITTED: JANUARY 28, 2019 \\n DECIDED: FEBRUARY 15, 2019 \\n\\n \\n The Clerk of Court is directed to amend the caption as set forth above. \\n\\f \\n \\nBefore: CALABRESI, CABRANES, CHIN, Circuit Judges.\\n\\n \\n\\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \\nappeals from a May 1, 2018 judgment of the United States District \\nCourt for the District of Connecticut (Alvin W. Thompson, Judge) \\ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \\nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \\nconclude that the amended complaint substantially complies with \\nRules 8 and 20. We agree, however, that the complaint fails to state a \\nclaim against three defendants. We therefore conclude that dismissal \\nwas improper except with respect to those three defendants. \\nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \\nIN PART. \\n \\n\\n James A. Harnage, Suffield, CT, pro se, for \\n Plaintiff‐Appellant. \\n\\n No appearance, for Defendants‐Appellees. \\n\\n \\n\\nPER CURIAM: \\n\\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \\nappeals from a May 1, 2018 judgment of the United States District \\n\\n\\n\\n\\n 2 \\n\\fCourt for the District of Connecticut (Alvin W. Thompson, Judge) \\ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \\nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \\nconclude that the amended complaint substantially complies with \\nRules 8 and 20. We agree, however, that the complaint fails to state a \\nclaim against three defendants. We therefore conclude that dismissal \\nwas improper except with respect to those three defendants. \\nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \\nIN PART. \\n\\n I. BACKGROUND \\n\\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \\nappeals the District Court’s dismissal of his 42 U.S.C. § 1983 claims \\nagainst various medical personnel at the University of Connecticut \\nHealth Center and the MacDougall‐Walker Correctional Institution \\n(where he is currently incarcerated) for failure to adequately treat a \\nhealth condition. After granting Harnage an opportunity to amend, \\nthe District Court sua sponte dismissed the amended complaint with \\nprejudice under 28 U.S.C. § 1915A1 for failure to comply with Rules 8 \\nand 20. \\n\\n\\n\\n\\n 1 Under 28 U.S.C. § 1915A(a), a district court “shall review . . . a complaint \\nin a civil action in which a prisoner seeks redress from a governmental entity or \\nofficer or employee of a governmental entity.” Upon such review, the district court \\nshall dismiss a complaint or any portion thereof that “is frivolous, malicious, or \\nfails to state a claim upon which relief may be granted” or “seeks monetary relief \\nfrom a defendant who is immune from such relief.” Id. § 1915A(b). \\n\\n\\n\\n\\n 3 \\n\\f II. DISCUSSION \\n\\n A. Standard of Review \\n\\n We review de novo a district court’s dismissal of a complaint \\nunder 28 U.S.C. § 1915A.2 McEachin v. McGuinnis, 357 F.3d 197, 200 (2d \\nCir. 2004). In reviewing such dismissals, we “accept all of the facts \\nalleged in the complaint as true and draw all inferences in the \\nplaintiff’s favor.” Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). “We \\nmust reverse a district court’s dismissal pursuant to § 1915A whenever \\na liberal reading of the complaint gives any indication that a valid \\nclaim might be stated.” Id. \\n \\n B. Rule 8 \\n\\n While we construe pro se pleadings liberally, “the basic \\nrequirements of Rule 8 apply to self‐represented and counseled \\n\\n\\n 2 While it is well‐established that dismissal under § 1915A for failure to state \\na claim is reviewed de novo, we have yet to enunciate a standard for reviewing a \\ndismissal under § 1915A for failure to comply with Rules 8 and 20. See Shomo v. New \\nYork, 374 F. App’x 180, 182 (2d Cir. 2010) (summary order). Just as whether a \\ncomplaint’s allegations state a claim is a question of law, so too is a complaint’s \\nadherence to the Federal Rules of Civil Procedure. We therefore review a district \\ncourt’s sua sponte dismissal under § 1915A for failure to comply with Rules 8 and \\n20 de novo. Of course, assuming that the district court has correctly concluded that \\na complaint fails to comply with Rules 8 and 20, its chosen remedy—that is, its \\ndecision to dismiss the complaint or otherwise grant leave to amend—is reviewed \\nfor abuse of discretion. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (“As \\na general matter . . . the district court has discretion whether or not to grant leave \\nto amend, and its decision is not subject to review on appeal except for abuse of \\ndiscretion.” (internal quotation marks and brackets omitted)). \\n\\n\\n\\n\\n 4 \\n\\fplaintiffs alike.” Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. \\n2004). Under Rule 8, a pleading must contain “a short and plain \\nstatement of the claim showing that the pleader is entitled to relief.” \\nFed. R. Civ. P. 8(a)(2). To satisfy this standard, the complaint must at \\na minimum “disclose sufficient information to permit the defendant \\nto have a fair understanding of what the plaintiff is complaining \\nabout and to know whether there is a legal basis for recovery.” Kittay \\nv. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (internal quotation marks \\nomitted). \\n \\n “When a complaint does not comply with the requirement that \\nit be short and plain, the court has the power, on its own initiative or \\nin response to a motion by the defendant, to strike any portions that \\nare redundant or immaterial, or to dismiss the complaint.” \\nSalahuddin, 861 F.2d at 42 (internal citation omitted). But “[d]ismissal \\n. . . is usually reserved for those cases in which the complaint is so \\nconfused, ambiguous, vague, or otherwise unintelligible that its true \\nsubstance, if any, is well disguised.” Id. \\n \\n Here, the District Court dismissed Harnage’s amended \\ncomplaint for failing to adequately put the defendants on notice of the \\nclaims specifically asserted against each of them. The District Court \\ndescribed the allegations set forth in the amended complaint as \\n“general complaints of lack of medical treatment or lack of effective \\nmedical treatment” that “fail to include any definite or specific dates \\non which requests for medical treatment or services or requests to \\nfacilitate medical treatment were made, any dates on which a \\n\\n\\n\\n\\n 5 \\n\\fdefendant allegedly denied or ignored requests for treatment or \\nservices or any dates on which a defendant allegedly responded to a \\nrequest for treatment, met with the plaintiff in connection with a \\nmedical appointment or offered treatment for the plaintiff’s \\nconditions.” See Harnage v. Lightner, No. 3:16cv1576(AWT), Dkt. No. 15 \\n(“Ruling and Order”), at 6. \\n \\n We conclude that, despite these shortcomings, the amended \\ncomplaint substantially complies with Rule 8. Liberally construed, the \\namended complaint identifies discrete defendants and the actions \\ntaken by these defendants that purportedly violated Harnage’s Eighth \\nAmendment rights. To wit, Harnage repeatedly sought treatment \\nfrom MacDougall‐Walker medical staff members including: Dr. Pillai, \\nDr. O’Hallaran, Dr. Nagvi, P.A. Kevin McChrystal, P.A. Rob, Lisa \\nCaldonero, Nurse Caroline, Nurse Nikki, Nurse Marissa, Nurse Miya, \\nNurse James, Janes 1‐5, and Johns 1‐5. He alleges that he failed to \\n“receive effective or proper medical treatment for his constipation” \\nfrom these defendants. See Harnage v. Lightner, No. 3:16cv1576(AWT), \\nDkt. No. 11 (“Am. Compl.”), ¶¶ 25, 27. These defendants also allegedly \\nfailed to provide Harnage with the prescriptions he had been \\npromised, or refills thereof. Id. ¶ 28. According to the amended \\ncomplaint, it was due to these defendants’ “deliberate indifference to \\n[his] serious medical needs”—as evidenced by their failure to ever \\nexamine Harnage prior to January 2014—that Harnage’s condition \\ndeteriorated. Id. ¶ 29. The amended complaint further alleges that \\ndefendant Rikel Lightner repeatedly ignored Harnage’s requests to \\ncorrect the facility’s medical deficiencies. Id. ¶ 41. Finally, with respect \\n\\n\\n\\n\\n 6 \\n\\fto Lisa Caldonero, L.P.N. Francis, P.A. Rob, RN Heidi Greene, and \\nJane 1, the amended complaint alleges that these defendants imposed \\nconditions on the plaintiff beyond what was authorized by \\nAdministrative Directive 8.9, which in turn made it more difficult for \\nHarnage to file Health Services Reviews in connection with this \\ncondition. Id. ¶ 44. \\n \\n In addition, we note that the failure to allege specific dates does \\nnot necessarily run afoul of Rule 8, especially where, as here, the \\nplaintiff lacks ready access to his medical records. See McEachin, 357 \\nF.3d at 201 (“Our reluctance to dismiss these complaints at such an \\nearly stage of the proceedings stems in part from the limited . . . \\nresources available to pro se plaintiffs, which may hamper their ability \\nto articulate potentially valid claims . . . .”). \\n \\n In sum, while Harnage’s amended complaint may not represent \\nthe paradigm of notice pleading, it is not the incomprehensible \\n“labyrinthian prolixity of unrelated and vituperative charges” that \\nRule 8 was intended to curb. Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. \\n1972). Because “sua sponte dismissal of pro se prisoner petitions which \\ncontain non‐frivolous claims . . . is disfavored by this Court,” \\nMcEachin, 357 F.3d at 200 (internal quotation marks and brackets \\nomitted), and because Harnage’s complaint—liberally construed—\\nsubstantially complies with Rule 8, we vacate the District Court’s \\njudgment insofar as it dismisses the amended complaint on this basis.3 \\n\\n We are mindful that the District Court has already afforded Harnage an \\n 3\\n\\nopportunity to amend his complaint and has twice provided advice for how to \\n\\n\\n\\n\\n 7 \\n\\f C. Rule 20 \\n\\n Rule 20 permits joinder of multiple defendants if “any right to \\nrelief is asserted against them jointly, severally, or in the alternative \\nwith respect to or arising out of the same transaction, occurrence, or \\nseries of transactions and occurrences” and “any questions of law or \\nfact common to all defendants will arise in the action.” Fed. R. Civ. P. \\n20(a)(2). \\n \\n We disagree with the District Court’s conclusion that Harnage’s \\ncomplaint asserts more than one distinct claim against multiple \\ndefendants. The amended complaint alleges that the defendants’ \\nactions (or inaction) individually and cumulatively resulted in the \\ndenial of adequate medical care for Harnage’s hemorrhoid condition \\nprior to his first surgery. These allegations are thus sufficiently related \\nto constitute a “series of transactions and occurrences.” Moreover, the \\nquestion of whether Harnage was denied proper medical care in \\nviolation of the Eighth Amendment is clearly a common question of \\n\\ncomply with Rule 8. But we do not agree with the District Court’s conclusion that \\nHarnage failed to comply with its prior orders. In its Initial Review Order, for \\nexample, the District Court took issue with the complaint’s general references to \\nthe “MacDougall defendants” and the “UCONN defendants,” explaining that these \\n“general allegations are not sufficient to put any [individual] defendant on notice \\nof the claims specifically asserted against him or her.” Harnage v. Lightner, No. \\n3:16cv1576(AWT), Dkt. No. 7, at 4. In the amended complaint, by contrast, Harnage \\nattempts to remedy this issue by specifically naming the medical staff members \\nfrom whom he sought treatment for his condition. See Am. Compl. ¶¶ 25, 33, 44. \\nMoreover, none of the District Court’s prior guidance regarding Rule 8 gave the \\ndefendant notice that he would face dismissal with prejudice if he failed to specify \\nthe dates of the alleged omissions or acts perpetrated by the named defendants. \\n\\n\\n\\n\\n 8 \\n\\flaw, if not also fact, with respect to the named defendants. Thus, even \\nthough Harnage’s allegations span several years and invoke several \\ndefendants, they all arise from the alleged failure of the named \\ndefendants to adequately treat Harnage’s hemorrhoid condition \\nbefore his first surgery.4 \\n\\n D. Failure to State a Claim \\n\\n The District Court correctly concluded that the amended \\ncomplaint fails to allege any wrongdoing by three named defendants: \\nSurgical Intern Shari, Dr. Wu, and Dr. Giles. Accordingly, we affirm \\nthe District Court’s dismissal of the complaint as to those three \\ndefendants. \\n\\n\\n\\n\\n The District Court overstates the degree to which the amended complaint \\n 4\\n\\nexceeds its prescribed scope. See Ruling and Order, at 4. While paragraph 50 of \\nHarnage’s amended complaint does reference a second hemorrhoid surgery in \\nearly 2016, the remainder of his claims are plainly directed toward the inadequate \\ntreatment he received before his first surgery, between August 2012 and October \\n2014. See Am. Compl. ¶ 34 (claiming that he endured needless suffering for a period \\nof “more than 24 months,” i.e., from August 2012 to October 2014). Read in context, \\nthe single reference to the 2016 surgery simply serves to underscore the gravity of \\nHarnage’s medical condition; it does not expand the scope of the complaint beyond \\nthe approximately 24‐month period preceding his first hemorrhoid surgery. \\n\\n\\n\\n\\n 9 \\n\\f III. CONCLUSION \\n\\n To summarize: We hold that Harnage’s amended complaint \\nsubstantially complies with Federal Rules of Civil Procedure 8 and 20. \\nWe agree, however, that the amended complaint fails to state a claim \\nagainst Surgical Intern Shari, Dr. Wu, and Dr. Giles. \\n\\n For the foregoing reasons, we AFFIRM the District Court’s \\ndismissal of Surgical Intern Shari, Dr. Wu, and Dr. Giles for failure to \\nstate a claim, and VACATE AND REMAND the remainder of the May \\n1, 2018 judgment for further proceedings consistent with this opinion. \\n\\n \\n\\n\\n\\n\\n 10\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}},{"rowIdx":499,"cells":{"id":{"kind":"number","value":4591188,"string":"4,591,188"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Disability Rights N.Y. v. New York"},"decision_date":{"kind":"string","value":"2019-02-15"},"docket_number":{"kind":"string","value":"17-2812-cv"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Second Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: CABRANES, LYNCH, and CHIN, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHIN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"17‐2812‐cv \\nDisability Rights N.Y. v. New York et al. \\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n \\n\\n August Term 2018 \\n\\n (Argued: August 16, 2018 Decided: February 15, 2019) \\n\\n Docket No. 17‐2812‐cv \\n \\n\\n DISABILITY RIGHTS NEW YORK, \\n \\n Plaintiff‐Appellant, \\n \\n v. \\n \\n STATE OF NEW YORK, NEW YORK STATE UNIFIED COURT SYSTEM, JANET \\n DIFIORE, as Chief Judge of the New York State Unified Court System, \\n LAWRENCE K. MARKS, as Chief Administrative Judge of the New York State \\n Unified Court System, \\n \\n Defendants‐Appellees. \\n \\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT \\n FOR THE SOUTHERN DISTRICT OF NEW YORK \\n\\n \\nBefore: \\n CABRANES, LYNCH, and CHIN, Circuit Judges. \\n \\n\\f Appeal from a judgment entered in the United States District Court \\n\\nfor the Southern District of New York (Hellerstein, J.) granting defendants‐\\n\\nappelleesʹ motion for judgment on the pleadings and dismissing the complaint. \\n\\nPlaintiff‐appellant Disability Rights New York (ʺDRNYʺ) alleges constitutional \\n\\nand other deficiencies in the manner in which guardianship proceedings are \\n\\nconducted in New York Surrogateʹs Court under Article 17A of the Surrogateʹs \\n\\nCourt Procedure Act. Relying on Younger v. Harris, 401 U.S. 37 (1971), and \\n\\nOʹShea v. Littleton, 414 U.S. 488 (1974), the district court determined that it was \\n\\nrequired to abstain from hearing the case. On appeal, DRNY contends that the \\n\\ndistrict court erred in abstaining. \\n\\n AFFIRMED. \\n \\n\\n JENNIFER J. MONTHIE (Lara H. Weissman, on the brief), \\n Disability Rights New York, Albany, New York, \\n for Plaintiff‐Appellant. \\n \\n MARK S. GRUBE, Assistant Solicitor General (Barbara D. \\n Underwood, Solicitor General, Steven C. Wu, \\n Deputy Solicitor General, on the brief), for Letitia \\n James, Attorney General for the State of New \\n York, New York, New York, for Defendants‐\\n Appellants. \\n ___________ \\n\\n \\n\\n\\n 2 \\n \\n\\fCHIN, Circuit Judge: \\n\\n Article 17A of the New York Surrogateʹs Court Procedure Act (the \\n\\nʺSCPAʺ) governs guardianship proceedings in New York State Surrogateʹs Court \\n\\nfor individuals with intellectual and developmental disabilities. The statute was \\n\\nenacted in 1969 to permit the appointment of parents or other interested persons \\n\\nas guardians for individuals unable to care for themselves. Plaintiff‐appellant \\n\\nDisability Rights New York (ʺDRNYʺ) brought this action below contending that \\n\\nthe statute is unconstitutional because it does not provide adequate protection \\n\\nfor these individuals, and seeking declaratory and injunctive relief to compel \\n\\ndefendants‐appellees ‐‐ the State of New York, its court system, and its Chief \\n\\nJudge and Chief Administrative Judge (ʺDefendantsʺ) ‐‐ to alter the manner in \\n\\nwhich guardianship proceedings are conducted. \\n\\n The district court did not reach the merits of DRNYʹs claims as it \\n\\ngranted Defendantsʹ motion for judgment on the pleadings, abstaining pursuant \\n\\nto Younger v. Harris, 401 U.S. 37 (1971), and OʹShea v. Littleton, 414 U.S. 488 (1974). \\n\\n For the reasons set forth below, we affirm the judgment of the \\n\\ndistrict court.1 \\n\\n \\n1 As we affirm on abstention grounds, we do not reach the issue of standing raised \\nby Defendants on appeal because we may ʺdecide a case under Younger without \\n 3 \\n \\n\\f BACKGROUND \\n\\nA. Relevant Statutory Provisions \\n\\n New York State utilizes two primary procedures related to legal \\n\\nguardianships: Article 17A of the Surrogateʹs Court Procedure Act (the ʺSCPAʺ) \\n\\nand Article 81 of the New York Mental Hygiene Law (the ʺMHLʺ). \\n\\n 1. Article 17A \\n\\n Article 17A governs guardianship proceedings in New York State \\n\\nSurrogateʹs Court for individuals with intellectual and developmental \\n\\ndisabilities. It was designed primarily to allow parents to serve as long‐term \\n\\nguardians of children who cannot care for themselves. See In re Chaim A.K., 885 \\n\\nN.Y.S.2d 582, 586 (Sur. Ct. New York County 2009). Guardianships are not \\n\\nlimited, however, to parent‐child relationships, and guardianship can be \\n\\nobtained by any ʺinterested person,ʺ including certain non‐profit organizations. \\n\\nSee SCPA §§ 1751, 1760. \\n\\n\\n\\n\\n \\naddressing [DRNYʹs] constitutional standing to bring suit.ʺ Spargo v. N.Y. State Commʹn \\non Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003); see also Ruhrgas AG v. Marathon Oil Co., \\n526 U.S. 574, 585 (1999) (reaffirming the inherent flexibility that federal courts exercise \\nʺto choose among threshold groundsʺ for disposing of a case without reaching the \\nmerits). \\n 4 \\n \\n\\f Article 17A guardianships, which allocate broad decision‐making \\n\\nauthority to the petitioner over the individual with alleged disabilities, are \\n\\nobtained through judicial proceedings before the New York Surrogateʹs Court. \\n\\nSee In re Chaim A.K., 885 N.Y.S.2d at 585. These procedures are designed to be \\n\\naccessible to lay people. See id. ʺVirtually allʺ Article 17A proceedings are \\n\\nuncontested and devoid of controversy. See In re Derek, 821 N.Y.S.2d 387, 390 \\n\\n(Sur. Ct. Broome County 2006). \\n\\n An Article 17A proceeding commences with service of notice by the \\n\\nperson seeking guardianship to a wide range of interested parties. See SCPA \\n\\n§ 1753. The court then conducts a hearing at ʺwhich [the potential ward] shall \\n\\nhave the right to a jury trial.ʺ Id. § 1754(1). The court can dispense with a \\n\\nhearing with the consent of both parents. Id. The individual with an alleged \\n\\ndisability shall be present at the hearing, unless the court is satisfied that such \\n\\nperson is ʺmedically incapable of being presentʺ or that her presence would not \\n\\nbe in her best interest. Id. § 1754(3). Though Article 17A does not provide for the \\n\\nright to an attorney, courts have sometimes appointed attorneys in difficult \\n\\ncases. See, e.g., In re Zhuo, 42 N.Y.S.3d 530, 532 (Sur. Ct. Kings County 2016). To \\n\\nobtain an Article 17A guardianship, a petitioner must present proof that two \\n\\n\\n\\n 5 \\n \\n\\fphysicians (or a physician and a psychologist) have certified that (1) the \\n\\nindividual has an intellectual or developmental disability that makes managing \\n\\nher own life impractical, (2) the situation is ʺpermanentʺ or ʺlikely to continue \\n\\nindefinitely,ʺ and (3) guardianship is in the individualʹs best interests. See SCPA \\n\\n§§ 1750, 1750‐a. Courts have recognized that the ʺbest interestsʺ standard is a \\n\\nlower standard of proof than the clear and convincing evidence standard. In re \\n\\nMueller, 887 N.Y.S.2d 768, 769 (Sur. Ct. Dutchess County 2009). Once a petition is \\n\\ngranted, the court retains jurisdiction over the guardianship and may modify it \\n\\nat the request of the ward or anyone acting on her behalf. See SCPA §§ 1755, \\n\\n1758. \\n\\n 2. Article 81 \\n\\n Article 81 governs guardianship proceedings in New York State \\n\\nSupreme Court. Unlike Article 17A, Article 81 is designed primarily to deal with \\n\\nelderly, disabled adults. In re Lavecchia, 170 Misc. 3d 211, 213 (Sup. Ct. Rockland \\n\\nCounty 1996). Article 81 is not limited to individuals diagnosed with specific \\n\\ndisabilities, but instead is designed for adults with ʺfunctional limitationsʺ that \\n\\nimpede their ability to provide for their own personal needs. MHL § 81.02. \\n\\n\\n\\n\\n 6 \\n \\n\\f Article 81 has different requirements than Article 17A. For example, \\n\\nunder Article 81 the court must hold a hearing, at which the prospective ward \\n\\nmust be present. Id. § 81.11(a), (c). At the hearing, the petitioner has the burden \\n\\nof establishing the need for guardianship by ʺclear and convincing evidence.ʺ Id. \\n\\n§§ 81.02(b), 81.12(a). And once a petition has been granted, guardians have \\n\\nongoing disclosure requirements. See, e.g., id. § 81.31 (requiring the guardian to \\n\\nfile an annual report with the supervising court). In sum, Article 81 proceedings \\n\\ncontain more checks and oversight than Article 17A proceedings: They require \\n\\nmore detailed pleadings, proof, and notice, and they provide appointed counsel, \\n\\na hearing that the potential ward must attend, ongoing supervision and \\n\\nreporting, and narrowly tailored guardianship powers. These more robust \\n\\nstandards form the basis for DRNYʹs argument on the merits. \\n\\nB. Procedural Background \\n\\n On September 21, 2016, DRNY brought this action to, inter alia, \\n\\nenjoin defendants from appointing legal guardians pursuant to Article 17A. \\n\\nDRNY alleges that Article 17A proceedings, as currently administered, do not \\n\\nmeet the standards of due process and equal protection. Rather than citing the \\n\\ncircumstances of specific individuals subject to Article 17A proceedings, \\n\\n\\n\\n 7 \\n \\n\\fhowever, DRNYʹs complaint relies primarily on a comparison of the two New \\n\\nYork State guardianship schemes ‐‐ Article 71A of the SCPA and Article 81 of the \\n\\nMHL. \\n\\n DRNY brought suit pursuant to (1) 42 U.S.C. § 1983, (2) Section 504 \\n\\nof the Rehabilitation Act of 1973 (the ʺRehabilitation Actʺ), 29 U.S.C. § 794, and \\n\\n(3) Title II of the Americans with Disabilities Act (the ʺADAʺ), 42 U.S.C. § 12132. \\n\\nDRNY asked for a declaration that Article 17A violates the Constitution, the \\n\\nADA, and the Rehabilitation Act. It also sought an injunction requiring \\n\\ndefendants to take certain actions in Article 17A guardianship proceedings, such \\n\\nas providing notice, applying a certain burden of proof, and providing \\n\\nsubstantive and procedural rights equal to those provided in Article 81 \\n\\nproceedings. Appʹx at 41‐42. \\n\\n Defendants answered the complaint and moved for judgment on the \\n\\npleadings. On August 16, 2017, the district court granted defendantsʹ motion on \\n\\nabstention grounds pursuant to Younger v. Harris, 401 U.S. 37 (1971), and OʹShea \\n\\nv. Littleton, 414 U.S. 488 (1974). The district court held that DRNYʹs claims fell \\n\\nʺsquarelyʺ under the third of the three categories of cases in which Younger \\n\\nprinciples require a federal court to refuse to exercise its jurisdiction in deference \\n\\n\\n\\n 8 \\n \\n\\fto state courts. Disability Rights N.Y. v. New York, No. 16‐cv‐7363, 2017 WL \\n\\n6388949, at *2 (S.D.N.Y. Aug. 16, 2017) (citing Sprint Commcʹns, Inc. v. Jacobs, 571 \\n\\nU.S. 69, 78 (2013)). The district court also relied on OʹShea, holding that the \\n\\nproposed injunction would impose ʺstandards on state court proceedings that \\n\\nʹwould require for their enforcement the continuous supervision by the federal \\n\\ncourt over the conduct ofʹ those proceedings.ʺ Id. (quoting OʹShea, 414 U.S. at 501 \\n\\n(alteration omitted)). DRNY timely appealed.2 \\n\\n DISCUSSION \\n\\n DRNY argues that the district court erred in abstaining from \\n\\nexercising its jurisdiction. In particular, DRNY argues that the district court \\n\\nerred in holding that the third Younger category applies. It also argues that the \\n\\ndistrict courtʹs reliance on OʹShea is misplaced. For the reasons set forth below, \\n\\nwe conclude that the district court correctly abstained under OʹShea. \\n\\nI. Applicable Law \\n\\n We review de novo the ʺessentiallyʺ legal determination of whether \\n\\nthe requirements for abstention have been met. Diamond ʺDʺ Constr. Corp. v. \\n\\n\\n\\n \\n2 ʺ[A]n order of abstention is considered final for purposes of appeal, at least when \\nthe order applies to the entire complaint.ʺ Pathways, Inc. v. Dunne, 329 F.3d 108, 113 (2d \\nCir. 2003). \\n 9 \\n \\n\\fMcGowan, 282 F.3d 191, 197‐98 (2d Cir. 2002); accord Schlager v. Phillips, 166 F.3d \\n\\n439, 441 (2d Cir. 1999). \\n\\n In general, ʺfederal courts are obliged to decide cases within the \\n\\nscope of federal jurisdiction.ʺ Sprint, 571 U.S. at 72. The Supreme Court, \\n\\nhowever, has recognized ʺcertain instances in which the prospect of undue \\n\\ninterference with state proceedings counsels against federal relief.ʺ Id. \\n\\n Federal courts must abstain where a party seeks to enjoin an \\n\\nongoing, parallel state criminal proceeding, to preserve the ʺlongstanding public \\n\\npolicy against federal court interference with state court proceedingsʺ based on \\n\\nprinciples of federalism and comity. Younger, 401 U.S. at 43‐44. The Younger \\n\\ndoctrine has been extended beyond ongoing criminal cases to include particular \\n\\nstate civil proceedings akin to criminal prosecutions, see Huffman v. Pursue, Ltd., \\n\\n420 U.S. 592 (1975), or that implicate a stateʹs interest in enforcing the orders and \\n\\njudgments of its courts, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). In Sprint, \\n\\nthe Supreme Court held that Youngerʹs scope is limited to these three \\n\\nʺexceptionalʺ categories ‐‐ ʺongoing state criminal prosecution,ʺ ʺcertain civil \\n\\nenforcement proceedings,ʺ and ʺcivil proceedings involving certain orders \\n\\n\\n\\n\\n 10 \\n \\n\\funiquely in furtherance of the state courtsʹ ability to perform their judicial \\n\\nfunctions.ʺ Sprint, 571 U.S. at 78. \\n\\n Here, only the third category is at issue: civil proceedings involving \\n\\ncertain orders uniquely in furtherance of the state courtsʹ ability to perform their \\n\\njudicial functions. Civil contempt orders and orders requiring the posting of \\n\\nbonds on appeal fall into this category. See NOPSI v. Council of City of New \\n\\nOrleans, 491 U.S. 350, 368 (1989) (citing Juidice v. Vail, 430 U.S. 327, 336 n.12 (1977); \\n\\nPennzoil Co., 481 U.S. at 13). In Juidice, the Supreme Court abstained from \\n\\ninterfering with the ability of New York state courts to issue contempt decrees \\n\\nbecause ʺ[t]he contempt power lies at the core of the administration of a Stateʹs \\n\\njudicial system,ʺ and ʺstands in aid of the authority of the judicial system, so that \\n\\nits orders and judgments are not rendered nugatory.ʺ 430 U.S. at 335, 336 n.12. \\n\\nIn Pennzoil, the Supreme Court abstained from interfering with the ability of \\n\\nTexas state courts to require the posting of appeal bonds because of the \\n\\nʺimportance to the States of enforcing the orders and judgments of their courts.ʺ \\n\\n481 U.S. at 13. We recently followed this line of cases in finding that abstention \\n\\nwas appropriate in a case seeking to enjoin New York courts from ordering \\n\\n\\n\\n\\n 11 \\n \\n\\fattorneysʹ fees in child custody cases. See Falco v. Justices of Matrimonial Parts of \\n\\nSupreme Court of Suffolk Cty., 805 F.3d 425, 428 (2d Cir. 2015). \\n\\n Although Younger mandates abstention only when the plaintiff seeks \\n\\nto enjoin ongoing state proceedings and only in the three instances identified in \\n\\nSprint, the Supreme Court has also held that even where no state proceedings are \\n\\npending, federal courts must abstain where failure to do so would result in ʺan \\n\\nongoing federal audit of state criminal proceedings.ʺ OʹShea, 414 U.S. at 500. In \\n\\nOʹShea, the plaintiffs sought to enjoin state court judges from carrying out \\n\\nallegedly unconstitutional policies and practices relating to bond setting, \\n\\nsentencing, and jury fees in criminal cases. Id. at 491‐92. The Court held that ʺan \\n\\ninjunction aimed at controlling or preventing the occurrence of specific events \\n\\nthat might take place in the course of future state criminal trialsʺ would amount \\n\\nto ʺnothing less than an ongoing federal audit of state . . . proceedings which \\n\\nwould indirectly accomplish the kind of interference that [Younger] and related \\n\\ncases sought to prevent.ʺ Id. at 500. Thus, to avoid effecting ʺa major continuing \\n\\nintrusion of the equitable power of the federal courts into the daily conduct of \\n\\nstate criminal proceedings,ʺ which is ʺantipathetic to established principles of \\n\\ncomity,ʺ id. at 501‐02, federal courts must be constantly mindful of the ʺspecial \\n\\n\\n\\n 12 \\n \\n\\fdelicacy of the adjustment to be preserved between federal equitable power and \\n\\nState administration of its own law,ʺ id. at 500 (quoting Stefanelli v. Minard, 342 \\n\\nU.S. 117, 120 (1951)). Hence, OʹShea is an extension of the principles set forth in \\n\\nYounger, and although Younger does not apply in the absence of pending \\n\\nproceedings, see Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (ʺAbsent any \\n\\npending proceeding in state tribunals, therefore, application by the lower courts \\n\\nof Younger abstention was clearly erroneous.ʺ (emphasis in original)), the \\n\\nconsiderations underlying Younger are still very much at play even when a suit is \\n\\nfiled prior to the onset of state proceedings, see OʹShea, 414 U.S. at 500; see also \\n\\nCourthouse News Serv. v. Brown, 908 F.3d 1063, 1072 (7th Cir. 2018) (ʺWhile this \\n\\ncase does not fit neatly into the Younger doctrine, it fits better into the Supreme \\n\\nCourtʹs extension of the Younger principles in OʹShea . . . .ʺ). \\n\\n Like Younger, OʹShea has also been applied in certain civil contexts \\n\\ninvolving the operations of state courts. See Kaufman v. Kaye, 466 F.3d 83, 86 (2d \\n\\nCir. 2006) (abstaining under OʹShea from enjoining internal state court judicial \\n\\nassignment procedures). Many of our sister circuits have abstained in similar \\n\\nsituations. See Courthouse News Serv., 908 F.3d at 1065‐66 (abstaining under \\n\\nOʹShea, and the principles of federalism and comity that underly it, from \\n\\n\\n\\n 13 \\n \\n\\fenjoining the Clerk of the Circuit Court of Cook County to release newly filed \\n\\ncomplaints at the moment of receipt); Oglala Sioux Tribe v. Fleming, 904 F.3d 603, \\n\\n612 (8th Cir. 2018) (abstaining under OʹShea from enjoining allegedly \\n\\nunconstitutional child custody proceedings because ʺ[t]he relief requested would \\n\\ninterfere with the state judicial proceedings by requiring the defendants to \\n\\ncomply with numerous procedural requirementsʺ and ʺfailure to comply with \\n\\nthe district court’s injunction would subject state officials to potential sanctionsʺ); \\n\\nMiles v. Wesley, 801 F.3d 1060, 1064, 1066 (9th Cir. 2015) (abstaining under OʹShea \\n\\nfrom enjoining the Los Angeles Supreme Court from reducing the number of \\n\\ncourthouses used for unlawful detainer actions); Hall v. Valeska, 509 F. Appʹx 834, \\n\\n835‐36 (11th Cir. 2012) (per curiam) (abstaining under OʹShea from enjoining \\n\\nallegedly discriminatory jury selection procedures); Parker v. Turner, 626 F.2d 1, 8 \\n\\n& n.18 (6th Cir. 1980) (providing that OʹShea establishes a rule of ʺnear‐absolute \\n\\nrestraint . . . to situations where the relief sought would interfere with the day‐to‐\\n\\nday conduct of state trialsʺ).3 \\n\\n\\n \\n3 While the Supreme Court in Sprint made clear that Youngerʹs scope should be \\nlimited to the three specified categories, 134 S. Ct. at 591, 594, the Court did not suggest \\nthat abstention under OʹShea should be circumscribed. Indeed, courts have continued \\nto apply OʹShea even after Sprint. See, e.g., Courthouse News Serv., 908 F.3d at 1072; \\nOglala Sioux Tribe, 904 F.3d at 612; Miles, 801 F.3d at 1064‐65. \\n \\n 14 \\n \\n\\fII. Application \\n\\n DRNY first argues that the third category of Younger does not apply \\n\\nto this case because there is no pending, parallel state court action. Indeed, \\n\\nDRNY is not seeking to enjoin any specific pending action, but it is instead \\n\\nseeking to affect the manner in which all Article 17A proceedings ‐‐ present and \\n\\nfuture ‐‐ are conducted.4 Mindful of the Supreme Courtʹs admonition that the \\n\\nthree ʺexceptionalʺ categories under Younger are to be narrowly construed, \\n\\nSprint, 571 U.S. at 73, 78, 82 (noting that the three categories ʺdefine Youngerʹs \\n\\nscope,ʺ that Younger extends ʺno further,ʺ and that it has not ʺapplied Younger \\n\\noutside these three ʹexceptionalʹ categoriesʺ), we do not decide whether this case \\n\\nfits within the third Younger category, for we conclude that it falls squarely \\n\\nwithin OʹSheaʹs abstention framework. \\n\\n Our decision in Kaufman v. Kaye is instructive. There, we abstained \\n\\nunder OʹShea from declaring that New York Stateʹs system for assigning cases \\n\\n\\n\\n \\n4 We note that DRNYʹs complaint lacks nearly any specificity in its pleading. The \\ncomplaint itself merely compares the aspects of two pieces of legislation and fails to \\nmention a single individual by name. Indeed, DRNY ʺtenders ʹnaked assertionsʹ devoid \\nof ʹfurther factual enhancement.ʹʺ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration \\nomitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). As drafted, \\nDRNYʹs pleading ʺgive[s] no indication of the circumstances that support the \\nconclusory allegation of unlawfulness.ʺ Drimal v. Tai, 786 F.3d 219, 224 (2d Cir. 2015). \\n 15 \\n \\n\\famong panels of appellate judges violated the Constitution and we refused to \\n\\norder the state legislature to establish a new procedure for assigning appeals. \\n\\nKaufman, 466 F.3d at 84‐85, 87. Doing so, we held, would ʺraise compliance \\n\\nissues under the putative federal injunctionʺ as well as claims that ʺthe state \\n\\ncourtʹs chosen remedy violated the Constitution or the terms of that injunction,ʺ \\n\\nwhich ʺwould inevitably lead to precisely the kind of piecemeal interruptions of \\n\\nstate proceedings condemned in OʹShea.ʺ Id. at 87 (internal quotation marks and \\n\\nellipsis omitted). A recent decision of the Ninth Circuit is also helpful. In Miles \\n\\nv. Wesley, the Ninth Circuit abstained under OʹShea from enjoining the Los \\n\\nAngeles Supreme Court from, inter alia, eliminating any courthouses that heard \\n\\nunlawful detainer actions. 801 F.3d at 1064. The court held that the requested \\n\\ninjunction would result in ʺheavy federal interference in such sensitive state \\n\\nactivities as administration of the judicial system.ʺ Id. at 1063 (quoting L.A. Cty. \\n\\nBar Assʹn v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)). \\n\\n In seeking the injunction in this case, DRNY asked the district court \\n\\n(and asks this Court now) to direct the New York State Unified Court System, the \\n\\nChief Judge of the State of New York, and the Chief Administrative Judge for the \\n\\nCourts of New York to (1) notify all current Article 17A wards of their right to \\n\\n\\n\\n 16 \\n \\n\\frequest modification or termination of their guardianship order, (2) hold \\n\\nproceedings that provide augmented substantive and procedural rights ʺno less \\n\\nthanʺ those of Article 81 proceedings, and (3) cease future Article 17A \\n\\nadjudications ʺuntil defendants ensure that the proceedings provide substantive \\n\\nand procedural rightsʺ on par with those of Article 81 proceedings. Appʹx at 42. \\n\\n As in OʹShea, DRNYʹs requested relief would effect a continuing, \\n\\nimpermissible ʺauditʺ of New York Surrogateʹs Court proceedings, which would \\n\\noffend the principles of comity and federalism. Simply put, DRNY seeks to \\n\\nʺcontrol[] or prevent[] the occurrence of specific events that might take place in \\n\\nthe court of future state [Article 17A proceedings.]ʺ OʹShea, 414 U.S. at 500. With \\n\\nsuch an injunction in place, anyone seeking or objecting to Article 17A \\n\\nguardianship in the future would be able to ʺraise compliance issues under the \\n\\nputative federal injunction claiming that the state courtʹs chosen remedy violated \\n\\nthe Constitution or the terms of that injunction.ʺ Kaufman, 466 F.3d at 87; see also \\n\\nid. (ʺ[A]ny remedy fashioned by the state would then be subject to future \\n\\nchallenges in the district court.ʺ). Ongoing, case‐by‐case oversight of state courts, \\n\\nlike the New York Surrogateʹs Court, is exactly the sort of interference OʹShea \\n\\nseeks to avoid. Kaufman, 466 F.3d at 86 (ʺ[F]ederal courts may not entertain \\n\\n\\n\\n 17 \\n \\n\\factions . . . that seek to impose ʹan ongoing federal audit of state . . . \\n\\nproceedings.ʹʺ (quoting OʹShea, 414 U.S. at 500)). Indeed, such ʺmonitoring of the \\n\\noperation of state court functions . . . is antipathetic to established principles of \\n\\ncomity.ʺ OʹShea, 414 U.S. at 501‐02. Because this Court has ʺno power to \\n\\nintervene in the internal procedures of the state courtsʺ and cannot ʺlegislate and \\n\\nengraft new procedures upon existing state . . . practices,ʺ the district court \\n\\ncorrectly abstained from exercising jurisdiction in this case. See Kaufman, 466 \\n\\nF.3d at 86 (quoting Wallace v. Kern, 520 F.2d 400, 404‐05 (2d Cir. 1975)). \\n\\n DRNY argues that federal courts have often found state statutes \\n\\nunconstitutional, including statutes resulting in the issuance of state court orders. \\n\\nIt cites landmark decisions such as Obergefell v. Hodges, 135 S. Ct. 2584 (2015) \\n\\n(holding that Michiganʹs law prohibiting same‐sex marriage violated equal \\n\\nprotection and due process rights), and Blakely v. Washington, 542 U.S. 296 (2004) \\n\\n(holding that Washingtonʹs sentencing law violates the Sixth Amendment). But \\n\\nthose cases did not implicate Younger. Plaintiffs in Obergefell challenged \\n\\nsubstantive state statutes, and plaintiffs in Blakely simply appealed a final \\n\\njudgment of the state courts. Here, DRNY seeks a far more substantial invasion \\n\\nof state courtsʹ domain; it would have federal courts conduct a preemptive \\n\\n\\n\\n 18 \\n \\n\\freview of state court procedure in guardianship proceedings, an area in which \\n\\nstates have an especially strong interest. See Falco, 805 F.3d at 427. Such review \\n\\nwould directly impede ʺthe normal course of . . . proceedings in the state courts.ʺ \\n\\nOʹShea, 414 U.S. at 500; see also Sprint, 571 U.S. at 73 (noting that abstention is \\n\\nproper where relief would impede ʺthe state courtsʹ ability to perform their \\n\\njudicial functions.ʺ (quoting NOPSI, 491 U.S. at 368)). \\n\\n DRNY also seeks to have Article 17A declared unconstitutional and \\n\\nviolative of the Americans with Disability Act and Section 504 of the \\n\\nRehabilitation Act of 1973. DRNY argues that its request for declaratory relief is \\n\\nnot subject to abstention, as a declaratory judgment would not order the state \\n\\ncourts to take certain actions. We are not persuaded. In Samuels v. Mackell, the \\n\\nSupreme Court held that ʺordinarily a declaratory judgment will result in \\n\\nprecisely the same interference with and disruption of state proceedings that the \\n\\nlongstanding policy limiting injunctions was designed to avoid.ʺ 401 U.S. 66, 72 \\n\\n(1971); see also Miles, 801 F.3d at 1063‐64 (noting that where OʹShea is implicated, \\n\\neven where plaintiffs narrow their request only to declaratory relief, abstention is \\n\\nproper where the relief sought ʺwould inevitably set up the precise basis for \\n\\nfuture intervention condemned in OʹSheaʺ because ʺthe question of defendantsʹ \\n\\n\\n\\n 19 \\n \\n\\fcompliance with any remedy imposed could be the subject of future court \\n\\nchallengesʺ (internal citations omitted)); Kaufman, 466 F.3d at 85 (abstaining \\n\\nunder OʹShea from hearing Kaufmanʹs complaint seeking injunctive and \\n\\ndeclaratory relief). Thus, the district court properly abstained from exercising \\n\\njurisdiction even as to DRNYʹs request for declaratory relief. \\n\\n We conclude by noting that abstention here is supported by the \\n\\nʺavailability of other avenues of relief.ʺ OʹShea, 414 U.S. at 504. DRNY may still \\n\\navail itself of the state courts to challenge the constitutionality of Article 17A \\n\\nproceedings. See Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., \\n\\n156 F.3d 432, 435 (2d Cir. 1998) (ʺState courts are courts of general jurisdiction \\n\\nand are accordingly presumed to have jurisdiction over federally‐created causes \\n\\nof action unless Congress indicates otherwise.ʺ). DRNY and any aggrieved \\n\\nindividuals will be able to obtain sufficient review in state court and, if needed, \\n\\nthe Supreme Court of the United States. See Allen v. McCurry, 449 U.S. 90, 105 \\n\\n(1980) (noting the Supreme Courtʹs confidence in state courts to adjudicate \\n\\nconstitutional issues); Kaufman, 466 F.3d at 87‐88. Indeed, New York state courts \\n\\nhave been diligent in reviewing the sufficiency of Article 17A proceedings, see, \\n\\ne.g., In re Mark C.H., 906 N.Y.S.2d 419, 427 (Sur. Ct. New York County 2010); In re \\n\\n\\n\\n 20 \\n \\n\\fD.D., 19 N.Y.S.3d 867, 869‐71 (Sur. Ct. Kings County 2015), and understand well \\n\\nthe differences between Article 17A proceedings and Article 81 proceedings, see \\n\\nIn re Chaim A.K., 885 N.Y.S.2d at 584‐90. \\n\\n CONCLUSION \\n\\n Accordingly, for the reasons set forth above, the judgment of the \\n\\ndistrict court is AFFIRMED. \\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4368441/\", \"author_raw\": \"CHIN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CABRANES"},"judge2":{"kind":"string","value":"LYNCH"},"judge3":{"kind":"string","value":"CHIN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"CABRANES\": \", Circuit\", \"LYNCH\": \", Circuit\", \"CHIN\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4591188/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":2,"string":"2"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Disability Rights N.Y. v. New York\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2812‐cv \nDisability Rights N.Y. v. New York et al. \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n \n\n August Term 2018 \n\n (Argued: August 16, 2018 Decided: February 15, 2019) \n\n Docket No. 17‐2812‐cv \n \n\n DISABILITY RIGHTS NEW YORK, \n \n Plaintiff‐Appellant, \n \n v. \n \n STATE OF NEW YORK, NEW YORK STATE UNIFIED COURT SYSTEM, JANET \n DIFIORE, as Chief Judge of the New York State Unified Court System, \n LAWRENCE K. MARKS, as Chief Administrative Judge of the New York State \n Unified Court System, \n \n Defendants‐Appellees. \n \n\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT \n FOR THE SOUTHERN DISTRICT OF NEW YORK \n\n \nBefore: \n CABRANES, LYNCH, and CHIN, Circuit Judges. \n \n\f Appeal from a judgment entered in the United States District Court \n\nfor the Southern District of New York (Hellerstein, J.) granting defendants‐\n\nappelleesʹ motion for judgment on the pleadings and dismissing the complaint. \n\nPlaintiff‐appellant Disability Rights New York (ʺDRNYʺ) alleges constitutional \n\nand other deficiencies in the manner in which guardianship proceedings are \n\nconducted in New York Surrogateʹs Court under Article 17A of the Surrogateʹs \n\nCourt Procedure Act. Relying on Younger v. Harris, 401 U.S. 37 (1971), and \n\nOʹShea v. Littleton, 414 U.S. 488 (1974), the district court determined that it was \n\nrequired to abstain from hearing the case. On appeal, DRNY contends that the \n\ndistrict court erred in abstaining. \n\n AFFIRMED. \n \n\n JENNIFER J. MONTHIE (Lara H. Weissman, on the brief), \n Disability Rights New York, Albany, New York, \n for Plaintiff‐Appellant. \n \n MARK S. GRUBE, Assistant Solicitor General (Barbara D. \n Underwood, Solicitor General, Steven C. Wu, \n Deputy Solicitor General, on the brief), for Letitia \n James, Attorney General for the State of New \n York, New York, New York, for Defendants‐\n Appellants. \n ___________ \n\n \n\n\n 2 \n \n\fCHIN, Circuit Judge: \n\n Article 17A of the New York Surrogateʹs Court Procedure Act (the \n\nʺSCPAʺ) governs guardianship proceedings in New York State Surrogateʹs Court \n\nfor individuals with intellectual and developmental disabilities. The statute was \n\nenacted in 1969 to permit the appointment of parents or other interested persons \n\nas guardians for individuals unable to care for themselves. Plaintiff‐appellant \n\nDisability Rights New York (ʺDRNYʺ) brought this action below contending that \n\nthe statute is unconstitutional because it does not provide adequate protection \n\nfor these individuals, and seeking declaratory and injunctive relief to compel \n\ndefendants‐appellees ‐‐ the State of New York, its court system, and its Chief \n\nJudge and Chief Administrative Judge (ʺDefendantsʺ) ‐‐ to alter the manner in \n\nwhich guardianship proceedings are conducted. \n\n The district court did not reach the merits of DRNYʹs claims as it \n\ngranted Defendantsʹ motion for judgment on the pleadings, abstaining pursuant \n\nto Younger v. Harris, 401 U.S. 37 (1971), and OʹShea v. Littleton, 414 U.S. 488 (1974). \n\n For the reasons set forth below, we affirm the judgment of the \n\ndistrict court.1 \n\n \n1 As we affirm on abstention grounds, we do not reach the issue of standing raised \nby Defendants on appeal because we may ʺdecide a case under Younger without \n 3 \n \n\f BACKGROUND \n\nA. Relevant Statutory Provisions \n\n New York State utilizes two primary procedures related to legal \n\nguardianships: Article 17A of the Surrogateʹs Court Procedure Act (the ʺSCPAʺ) \n\nand Article 81 of the New York Mental Hygiene Law (the ʺMHLʺ). \n\n 1. Article 17A \n\n Article 17A governs guardianship proceedings in New York State \n\nSurrogateʹs Court for individuals with intellectual and developmental \n\ndisabilities. It was designed primarily to allow parents to serve as long‐term \n\nguardians of children who cannot care for themselves. See In re Chaim A.K., 885 \n\nN.Y.S.2d 582, 586 (Sur. Ct. New York County 2009). Guardianships are not \n\nlimited, however, to parent‐child relationships, and guardianship can be \n\nobtained by any ʺinterested person,ʺ including certain non‐profit organizations. \n\nSee SCPA §§ 1751, 1760. \n\n\n\n\n \naddressing [DRNYʹs] constitutional standing to bring suit.ʺ Spargo v. N.Y. State Commʹn \non Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003); see also Ruhrgas AG v. Marathon Oil Co., \n526 U.S. 574, 585 (1999) (reaffirming the inherent flexibility that federal courts exercise \nʺto choose among threshold groundsʺ for disposing of a case without reaching the \nmerits). \n 4 \n \n\f Article 17A guardianships, which allocate broad decision‐making \n\nauthority to the petitioner over the individual with alleged disabilities, are \n\nobtained through judicial proceedings before the New York Surrogateʹs Court. \n\nSee In re Chaim A.K., 885 N.Y.S.2d at 585. These procedures are designed to be \n\naccessible to lay people. See id. ʺVirtually allʺ Article 17A proceedings are \n\nuncontested and devoid of controversy. See In re Derek, 821 N.Y.S.2d 387, 390 \n\n(Sur. Ct. Broome County 2006). \n\n An Article 17A proceeding commences with service of notice by the \n\nperson seeking guardianship to a wide range of interested parties. See SCPA \n\n§ 1753. The court then conducts a hearing at ʺwhich [the potential ward] shall \n\nhave the right to a jury trial.ʺ Id. § 1754(1). The court can dispense with a \n\nhearing with the consent of both parents. Id. The individual with an alleged \n\ndisability shall be present at the hearing, unless the court is satisfied that such \n\nperson is ʺmedically incapable of being presentʺ or that her presence would not \n\nbe in her best interest. Id. § 1754(3). Though Article 17A does not provide for the \n\nright to an attorney, courts have sometimes appointed attorneys in difficult \n\ncases. See, e.g., In re Zhuo, 42 N.Y.S.3d 530, 532 (Sur. Ct. Kings County 2016). To \n\nobtain an Article 17A guardianship, a petitioner must present proof that two \n\n\n\n 5 \n \n\fphysicians (or a physician and a psychologist) have certified that (1) the \n\nindividual has an intellectual or developmental disability that makes managing \n\nher own life impractical, (2) the situation is ʺpermanentʺ or ʺlikely to continue \n\nindefinitely,ʺ and (3) guardianship is in the individualʹs best interests. See SCPA \n\n§§ 1750, 1750‐a. Courts have recognized that the ʺbest interestsʺ standard is a \n\nlower standard of proof than the clear and convincing evidence standard. In re \n\nMueller, 887 N.Y.S.2d 768, 769 (Sur. Ct. Dutchess County 2009). Once a petition is \n\ngranted, the court retains jurisdiction over the guardianship and may modify it \n\nat the request of the ward or anyone acting on her behalf. See SCPA §§ 1755, \n\n1758. \n\n 2. Article 81 \n\n Article 81 governs guardianship proceedings in New York State \n\nSupreme Court. Unlike Article 17A, Article 81 is designed primarily to deal with \n\nelderly, disabled adults. In re Lavecchia, 170 Misc. 3d 211, 213 (Sup. Ct. Rockland \n\nCounty 1996). Article 81 is not limited to individuals diagnosed with specific \n\ndisabilities, but instead is designed for adults with ʺfunctional limitationsʺ that \n\nimpede their ability to provide for their own personal needs. MHL § 81.02. \n\n\n\n\n 6 \n \n\f Article 81 has different requirements than Article 17A. For example, \n\nunder Article 81 the court must hold a hearing, at which the prospective ward \n\nmust be present. Id. § 81.11(a), (c). At the hearing, the petitioner has the burden \n\nof establishing the need for guardianship by ʺclear and convincing evidence.ʺ Id. \n\n§§ 81.02(b), 81.12(a). And once a petition has been granted, guardians have \n\nongoing disclosure requirements. See, e.g., id. § 81.31 (requiring the guardian to \n\nfile an annual report with the supervising court). In sum, Article 81 proceedings \n\ncontain more checks and oversight than Article 17A proceedings: They require \n\nmore detailed pleadings, proof, and notice, and they provide appointed counsel, \n\na hearing that the potential ward must attend, ongoing supervision and \n\nreporting, and narrowly tailored guardianship powers. These more robust \n\nstandards form the basis for DRNYʹs argument on the merits. \n\nB. Procedural Background \n\n On September 21, 2016, DRNY brought this action to, inter alia, \n\nenjoin defendants from appointing legal guardians pursuant to Article 17A. \n\nDRNY alleges that Article 17A proceedings, as currently administered, do not \n\nmeet the standards of due process and equal protection. Rather than citing the \n\ncircumstances of specific individuals subject to Article 17A proceedings, \n\n\n\n 7 \n \n\fhowever, DRNYʹs complaint relies primarily on a comparison of the two New \n\nYork State guardianship schemes ‐‐ Article 71A of the SCPA and Article 81 of the \n\nMHL. \n\n DRNY brought suit pursuant to (1) 42 U.S.C. § 1983, (2) Section 504 \n\nof the Rehabilitation Act of 1973 (the ʺRehabilitation Actʺ), 29 U.S.C. § 794, and \n\n(3) Title II of the Americans with Disabilities Act (the ʺADAʺ), 42 U.S.C. § 12132. \n\nDRNY asked for a declaration that Article 17A violates the Constitution, the \n\nADA, and the Rehabilitation Act. It also sought an injunction requiring \n\ndefendants to take certain actions in Article 17A guardianship proceedings, such \n\nas providing notice, applying a certain burden of proof, and providing \n\nsubstantive and procedural rights equal to those provided in Article 81 \n\nproceedings. Appʹx at 41‐42. \n\n Defendants answered the complaint and moved for judgment on the \n\npleadings. On August 16, 2017, the district court granted defendantsʹ motion on \n\nabstention grounds pursuant to Younger v. Harris, 401 U.S. 37 (1971), and OʹShea \n\nv. Littleton, 414 U.S. 488 (1974). The district court held that DRNYʹs claims fell \n\nʺsquarelyʺ under the third of the three categories of cases in which Younger \n\nprinciples require a federal court to refuse to exercise its jurisdiction in deference \n\n\n\n 8 \n \n\fto state courts. Disability Rights N.Y. v. New York, No. 16‐cv‐7363, 2017 WL \n\n6388949, at *2 (S.D.N.Y. Aug. 16, 2017) (citing Sprint Commcʹns, Inc. v. Jacobs, 571 \n\nU.S. 69, 78 (2013)). The district court also relied on OʹShea, holding that the \n\nproposed injunction would impose ʺstandards on state court proceedings that \n\nʹwould require for their enforcement the continuous supervision by the federal \n\ncourt over the conduct ofʹ those proceedings.ʺ Id. (quoting OʹShea, 414 U.S. at 501 \n\n(alteration omitted)). DRNY timely appealed.2 \n\n DISCUSSION \n\n DRNY argues that the district court erred in abstaining from \n\nexercising its jurisdiction. In particular, DRNY argues that the district court \n\nerred in holding that the third Younger category applies. It also argues that the \n\ndistrict courtʹs reliance on OʹShea is misplaced. For the reasons set forth below, \n\nwe conclude that the district court correctly abstained under OʹShea. \n\nI. Applicable Law \n\n We review de novo the ʺessentiallyʺ legal determination of whether \n\nthe requirements for abstention have been met. Diamond ʺDʺ Constr. Corp. v. \n\n\n\n \n2 ʺ[A]n order of abstention is considered final for purposes of appeal, at least when \nthe order applies to the entire complaint.ʺ Pathways, Inc. v. Dunne, 329 F.3d 108, 113 (2d \nCir. 2003). \n 9 \n \n\fMcGowan, 282 F.3d 191, 197‐98 (2d Cir. 2002); accord Schlager v. Phillips, 166 F.3d \n\n439, 441 (2d Cir. 1999). \n\n In general, ʺfederal courts are obliged to decide cases within the \n\nscope of federal jurisdiction.ʺ Sprint, 571 U.S. at 72. The Supreme Court, \n\nhowever, has recognized ʺcertain instances in which the prospect of undue \n\ninterference with state proceedings counsels against federal relief.ʺ Id. \n\n Federal courts must abstain where a party seeks to enjoin an \n\nongoing, parallel state criminal proceeding, to preserve the ʺlongstanding public \n\npolicy against federal court interference with state court proceedingsʺ based on \n\nprinciples of federalism and comity. Younger, 401 U.S. at 43‐44. The Younger \n\ndoctrine has been extended beyond ongoing criminal cases to include particular \n\nstate civil proceedings akin to criminal prosecutions, see Huffman v. Pursue, Ltd., \n\n420 U.S. 592 (1975), or that implicate a stateʹs interest in enforcing the orders and \n\njudgments of its courts, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). In Sprint, \n\nthe Supreme Court held that Youngerʹs scope is limited to these three \n\nʺexceptionalʺ categories ‐‐ ʺongoing state criminal prosecution,ʺ ʺcertain civil \n\nenforcement proceedings,ʺ and ʺcivil proceedings involving certain orders \n\n\n\n\n 10 \n \n\funiquely in furtherance of the state courtsʹ ability to perform their judicial \n\nfunctions.ʺ Sprint, 571 U.S. at 78. \n\n Here, only the third category is at issue: civil proceedings involving \n\ncertain orders uniquely in furtherance of the state courtsʹ ability to perform their \n\njudicial functions. Civil contempt orders and orders requiring the posting of \n\nbonds on appeal fall into this category. See NOPSI v. Council of City of New \n\nOrleans, 491 U.S. 350, 368 (1989) (citing Juidice v. Vail, 430 U.S. 327, 336 n.12 (1977); \n\nPennzoil Co., 481 U.S. at 13). In Juidice, the Supreme Court abstained from \n\ninterfering with the ability of New York state courts to issue contempt decrees \n\nbecause ʺ[t]he contempt power lies at the core of the administration of a Stateʹs \n\njudicial system,ʺ and ʺstands in aid of the authority of the judicial system, so that \n\nits orders and judgments are not rendered nugatory.ʺ 430 U.S. at 335, 336 n.12. \n\nIn Pennzoil, the Supreme Court abstained from interfering with the ability of \n\nTexas state courts to require the posting of appeal bonds because of the \n\nʺimportance to the States of enforcing the orders and judgments of their courts.ʺ \n\n481 U.S. at 13. We recently followed this line of cases in finding that abstention \n\nwas appropriate in a case seeking to enjoin New York courts from ordering \n\n\n\n\n 11 \n \n\fattorneysʹ fees in child custody cases. See Falco v. Justices of Matrimonial Parts of \n\nSupreme Court of Suffolk Cty., 805 F.3d 425, 428 (2d Cir. 2015). \n\n Although Younger mandates abstention only when the plaintiff seeks \n\nto enjoin ongoing state proceedings and only in the three instances identified in \n\nSprint, the Supreme Court has also held that even where no state proceedings are \n\npending, federal courts must abstain where failure to do so would result in ʺan \n\nongoing federal audit of state criminal proceedings.ʺ OʹShea, 414 U.S. at 500. In \n\nOʹShea, the plaintiffs sought to enjoin state court judges from carrying out \n\nallegedly unconstitutional policies and practices relating to bond setting, \n\nsentencing, and jury fees in criminal cases. Id. at 491‐92. The Court held that ʺan \n\ninjunction aimed at controlling or preventing the occurrence of specific events \n\nthat might take place in the course of future state criminal trialsʺ would amount \n\nto ʺnothing less than an ongoing federal audit of state . . . proceedings which \n\nwould indirectly accomplish the kind of interference that [Younger] and related \n\ncases sought to prevent.ʺ Id. at 500. Thus, to avoid effecting ʺa major continuing \n\nintrusion of the equitable power of the federal courts into the daily conduct of \n\nstate criminal proceedings,ʺ which is ʺantipathetic to established principles of \n\ncomity,ʺ id. at 501‐02, federal courts must be constantly mindful of the ʺspecial \n\n\n\n 12 \n \n\fdelicacy of the adjustment to be preserved between federal equitable power and \n\nState administration of its own law,ʺ id. at 500 (quoting Stefanelli v. Minard, 342 \n\nU.S. 117, 120 (1951)). Hence, OʹShea is an extension of the principles set forth in \n\nYounger, and although Younger does not apply in the absence of pending \n\nproceedings, see Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (ʺAbsent any \n\npending proceeding in state tribunals, therefore, application by the lower courts \n\nof Younger abstention was clearly erroneous.ʺ (emphasis in original)), the \n\nconsiderations underlying Younger are still very much at play even when a suit is \n\nfiled prior to the onset of state proceedings, see OʹShea, 414 U.S. at 500; see also \n\nCourthouse News Serv. v. Brown, 908 F.3d 1063, 1072 (7th Cir. 2018) (ʺWhile this \n\ncase does not fit neatly into the Younger doctrine, it fits better into the Supreme \n\nCourtʹs extension of the Younger principles in OʹShea . . . .ʺ). \n\n Like Younger, OʹShea has also been applied in certain civil contexts \n\ninvolving the operations of state courts. See Kaufman v. Kaye, 466 F.3d 83, 86 (2d \n\nCir. 2006) (abstaining under OʹShea from enjoining internal state court judicial \n\nassignment procedures). Many of our sister circuits have abstained in similar \n\nsituations. See Courthouse News Serv., 908 F.3d at 1065‐66 (abstaining under \n\nOʹShea, and the principles of federalism and comity that underly it, from \n\n\n\n 13 \n \n\fenjoining the Clerk of the Circuit Court of Cook County to release newly filed \n\ncomplaints at the moment of receipt); Oglala Sioux Tribe v. Fleming, 904 F.3d 603, \n\n612 (8th Cir. 2018) (abstaining under OʹShea from enjoining allegedly \n\nunconstitutional child custody proceedings because ʺ[t]he relief requested would \n\ninterfere with the state judicial proceedings by requiring the defendants to \n\ncomply with numerous procedural requirementsʺ and ʺfailure to comply with \n\nthe district court’s injunction would subject state officials to potential sanctionsʺ); \n\nMiles v. Wesley, 801 F.3d 1060, 1064, 1066 (9th Cir. 2015) (abstaining under OʹShea \n\nfrom enjoining the Los Angeles Supreme Court from reducing the number of \n\ncourthouses used for unlawful detainer actions); Hall v. Valeska, 509 F. Appʹx 834, \n\n835‐36 (11th Cir. 2012) (per curiam) (abstaining under OʹShea from enjoining \n\nallegedly discriminatory jury selection procedures); Parker v. Turner, 626 F.2d 1, 8 \n\n& n.18 (6th Cir. 1980) (providing that OʹShea establishes a rule of ʺnear‐absolute \n\nrestraint . . . to situations where the relief sought would interfere with the day‐to‐\n\nday conduct of state trialsʺ).3 \n\n\n \n3 While the Supreme Court in Sprint made clear that Youngerʹs scope should be \nlimited to the three specified categories, 134 S. Ct. at 591, 594, the Court did not suggest \nthat abstention under OʹShea should be circumscribed. Indeed, courts have continued \nto apply OʹShea even after Sprint. See, e.g., Courthouse News Serv., 908 F.3d at 1072; \nOglala Sioux Tribe, 904 F.3d at 612; Miles, 801 F.3d at 1064‐65. \n \n 14 \n \n\fII. Application \n\n DRNY first argues that the third category of Younger does not apply \n\nto this case because there is no pending, parallel state court action. Indeed, \n\nDRNY is not seeking to enjoin any specific pending action, but it is instead \n\nseeking to affect the manner in which all Article 17A proceedings ‐‐ present and \n\nfuture ‐‐ are conducted.4 Mindful of the Supreme Courtʹs admonition that the \n\nthree ʺexceptionalʺ categories under Younger are to be narrowly construed, \n\nSprint, 571 U.S. at 73, 78, 82 (noting that the three categories ʺdefine Youngerʹs \n\nscope,ʺ that Younger extends ʺno further,ʺ and that it has not ʺapplied Younger \n\noutside these three ʹexceptionalʹ categoriesʺ), we do not decide whether this case \n\nfits within the third Younger category, for we conclude that it falls squarely \n\nwithin OʹSheaʹs abstention framework. \n\n Our decision in Kaufman v. Kaye is instructive. There, we abstained \n\nunder OʹShea from declaring that New York Stateʹs system for assigning cases \n\n\n\n \n4 We note that DRNYʹs complaint lacks nearly any specificity in its pleading. The \ncomplaint itself merely compares the aspects of two pieces of legislation and fails to \nmention a single individual by name. Indeed, DRNY ʺtenders ʹnaked assertionsʹ devoid \nof ʹfurther factual enhancement.ʹʺ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration \nomitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). As drafted, \nDRNYʹs pleading ʺgive[s] no indication of the circumstances that support the \nconclusory allegation of unlawfulness.ʺ Drimal v. Tai, 786 F.3d 219, 224 (2d Cir. 2015). \n 15 \n \n\famong panels of appellate judges violated the Constitution and we refused to \n\norder the state legislature to establish a new procedure for assigning appeals. \n\nKaufman, 466 F.3d at 84‐85, 87. Doing so, we held, would ʺraise compliance \n\nissues under the putative federal injunctionʺ as well as claims that ʺthe state \n\ncourtʹs chosen remedy violated the Constitution or the terms of that injunction,ʺ \n\nwhich ʺwould inevitably lead to precisely the kind of piecemeal interruptions of \n\nstate proceedings condemned in OʹShea.ʺ Id. at 87 (internal quotation marks and \n\nellipsis omitted). A recent decision of the Ninth Circuit is also helpful. In Miles \n\nv. Wesley, the Ninth Circuit abstained under OʹShea from enjoining the Los \n\nAngeles Supreme Court from, inter alia, eliminating any courthouses that heard \n\nunlawful detainer actions. 801 F.3d at 1064. The court held that the requested \n\ninjunction would result in ʺheavy federal interference in such sensitive state \n\nactivities as administration of the judicial system.ʺ Id. at 1063 (quoting L.A. Cty. \n\nBar Assʹn v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)). \n\n In seeking the injunction in this case, DRNY asked the district court \n\n(and asks this Court now) to direct the New York State Unified Court System, the \n\nChief Judge of the State of New York, and the Chief Administrative Judge for the \n\nCourts of New York to (1) notify all current Article 17A wards of their right to \n\n\n\n 16 \n \n\frequest modification or termination of their guardianship order, (2) hold \n\nproceedings that provide augmented substantive and procedural rights ʺno less \n\nthanʺ those of Article 81 proceedings, and (3) cease future Article 17A \n\nadjudications ʺuntil defendants ensure that the proceedings provide substantive \n\nand procedural rightsʺ on par with those of Article 81 proceedings. Appʹx at 42. \n\n As in OʹShea, DRNYʹs requested relief would effect a continuing, \n\nimpermissible ʺauditʺ of New York Surrogateʹs Court proceedings, which would \n\noffend the principles of comity and federalism. Simply put, DRNY seeks to \n\nʺcontrol[] or prevent[] the occurrence of specific events that might take place in \n\nthe court of future state [Article 17A proceedings.]ʺ OʹShea, 414 U.S. at 500. With \n\nsuch an injunction in place, anyone seeking or objecting to Article 17A \n\nguardianship in the future would be able to ʺraise compliance issues under the \n\nputative federal injunction claiming that the state courtʹs chosen remedy violated \n\nthe Constitution or the terms of that injunction.ʺ Kaufman, 466 F.3d at 87; see also \n\nid. (ʺ[A]ny remedy fashioned by the state would then be subject to future \n\nchallenges in the district court.ʺ). Ongoing, case‐by‐case oversight of state courts, \n\nlike the New York Surrogateʹs Court, is exactly the sort of interference OʹShea \n\nseeks to avoid. Kaufman, 466 F.3d at 86 (ʺ[F]ederal courts may not entertain \n\n\n\n 17 \n \n\factions . . . that seek to impose ʹan ongoing federal audit of state . . . \n\nproceedings.ʹʺ (quoting OʹShea, 414 U.S. at 500)). Indeed, such ʺmonitoring of the \n\noperation of state court functions . . . is antipathetic to established principles of \n\ncomity.ʺ OʹShea, 414 U.S. at 501‐02. Because this Court has ʺno power to \n\nintervene in the internal procedures of the state courtsʺ and cannot ʺlegislate and \n\nengraft new procedures upon existing state . . . practices,ʺ the district court \n\ncorrectly abstained from exercising jurisdiction in this case. See Kaufman, 466 \n\nF.3d at 86 (quoting Wallace v. Kern, 520 F.2d 400, 404‐05 (2d Cir. 1975)). \n\n DRNY argues that federal courts have often found state statutes \n\nunconstitutional, including statutes resulting in the issuance of state court orders. \n\nIt cites landmark decisions such as Obergefell v. Hodges, 135 S. Ct. 2584 (2015) \n\n(holding that Michiganʹs law prohibiting same‐sex marriage violated equal \n\nprotection and due process rights), and Blakely v. Washington, 542 U.S. 296 (2004) \n\n(holding that Washingtonʹs sentencing law violates the Sixth Amendment). But \n\nthose cases did not implicate Younger. Plaintiffs in Obergefell challenged \n\nsubstantive state statutes, and plaintiffs in Blakely simply appealed a final \n\njudgment of the state courts. Here, DRNY seeks a far more substantial invasion \n\nof state courtsʹ domain; it would have federal courts conduct a preemptive \n\n\n\n 18 \n \n\freview of state court procedure in guardianship proceedings, an area in which \n\nstates have an especially strong interest. See Falco, 805 F.3d at 427. Such review \n\nwould directly impede ʺthe normal course of . . . proceedings in the state courts.ʺ \n\nOʹShea, 414 U.S. at 500; see also Sprint, 571 U.S. at 73 (noting that abstention is \n\nproper where relief would impede ʺthe state courtsʹ ability to perform their \n\njudicial functions.ʺ (quoting NOPSI, 491 U.S. at 368)). \n\n DRNY also seeks to have Article 17A declared unconstitutional and \n\nviolative of the Americans with Disability Act and Section 504 of the \n\nRehabilitation Act of 1973. DRNY argues that its request for declaratory relief is \n\nnot subject to abstention, as a declaratory judgment would not order the state \n\ncourts to take certain actions. We are not persuaded. In Samuels v. Mackell, the \n\nSupreme Court held that ʺordinarily a declaratory judgment will result in \n\nprecisely the same interference with and disruption of state proceedings that the \n\nlongstanding policy limiting injunctions was designed to avoid.ʺ 401 U.S. 66, 72 \n\n(1971); see also Miles, 801 F.3d at 1063‐64 (noting that where OʹShea is implicated, \n\neven where plaintiffs narrow their request only to declaratory relief, abstention is \n\nproper where the relief sought ʺwould inevitably set up the precise basis for \n\nfuture intervention condemned in OʹSheaʺ because ʺthe question of defendantsʹ \n\n\n\n 19 \n \n\fcompliance with any remedy imposed could be the subject of future court \n\nchallengesʺ (internal citations omitted)); Kaufman, 466 F.3d at 85 (abstaining \n\nunder OʹShea from hearing Kaufmanʹs complaint seeking injunctive and \n\ndeclaratory relief). Thus, the district court properly abstained from exercising \n\njurisdiction even as to DRNYʹs request for declaratory relief. \n\n We conclude by noting that abstention here is supported by the \n\nʺavailability of other avenues of relief.ʺ OʹShea, 414 U.S. at 504. DRNY may still \n\navail itself of the state courts to challenge the constitutionality of Article 17A \n\nproceedings. See Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., \n\n156 F.3d 432, 435 (2d Cir. 1998) (ʺState courts are courts of general jurisdiction \n\nand are accordingly presumed to have jurisdiction over federally‐created causes \n\nof action unless Congress indicates otherwise.ʺ). DRNY and any aggrieved \n\nindividuals will be able to obtain sufficient review in state court and, if needed, \n\nthe Supreme Court of the United States. See Allen v. McCurry, 449 U.S. 90, 105 \n\n(1980) (noting the Supreme Courtʹs confidence in state courts to adjudicate \n\nconstitutional issues); Kaufman, 466 F.3d at 87‐88. Indeed, New York state courts \n\nhave been diligent in reviewing the sufficiency of Article 17A proceedings, see, \n\ne.g., In re Mark C.H., 906 N.Y.S.2d 419, 427 (Sur. Ct. New York County 2010); In re \n\n\n\n 20 \n \n\fD.D., 19 N.Y.S.3d 867, 869‐71 (Sur. Ct. Kings County 2015), and understand well \n\nthe differences between Article 17A proceedings and Article 81 proceedings, see \n\nIn re Chaim A.K., 885 N.Y.S.2d at 584‐90. \n\n CONCLUSION \n\n Accordingly, for the reasons set forth above, the judgment of the \n\ndistrict court is AFFIRMED. \n\n\n\n\n 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Disability Rights N.Y. v. New York\\nCourt: U.S. Court of Appeals for the Second Circuit\\nDate decided: 2019-02-15\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n17‐2812‐cv \\nDisability Rights N.Y. v. New York et al. \\n \\n UNITED STATES COURT OF APPEALS \\n FOR THE SECOND CIRCUIT \\n \\n\\n August Term 2018 \\n\\n (Argued: August 16, 2018 Decided: February 15, 2019) \\n\\n Docket No. 17‐2812‐cv \\n \\n\\n DISABILITY RIGHTS NEW YORK, \\n \\n Plaintiff‐Appellant, \\n \\n v. \\n \\n STATE OF NEW YORK, NEW YORK STATE UNIFIED COURT SYSTEM, JANET \\n DIFIORE, as Chief Judge of the New York State Unified Court System, \\n LAWRENCE K. MARKS, as Chief Administrative Judge of the New York State \\n Unified Court System, \\n \\n Defendants‐Appellees. \\n \\n\\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT \\n FOR THE SOUTHERN DISTRICT OF NEW YORK \\n\\n \\nBefore: \\n CABRANES, LYNCH, and CHIN, Circuit Judges. \\n \\n\\f Appeal from a judgment entered in the United States District Court \\n\\nfor the Southern District of New York (Hellerstein, J.) granting defendants‐\\n\\nappelleesʹ motion for judgment on the pleadings and dismissing the complaint. \\n\\nPlaintiff‐appellant Disability Rights New York (ʺDRNYʺ) alleges constitutional \\n\\nand other deficiencies in the manner in which guardianship proceedings are \\n\\nconducted in New York Surrogateʹs Court under Article 17A of the Surrogateʹs \\n\\nCourt Procedure Act. Relying on Younger v. Harris, 401 U.S. 37 (1971), and \\n\\nOʹShea v. Littleton, 414 U.S. 488 (1974), the district court determined that it was \\n\\nrequired to abstain from hearing the case. On appeal, DRNY contends that the \\n\\ndistrict court erred in abstaining. \\n\\n AFFIRMED. \\n \\n\\n JENNIFER J. MONTHIE (Lara H. Weissman, on the brief), \\n Disability Rights New York, Albany, New York, \\n for Plaintiff‐Appellant. \\n \\n MARK S. GRUBE, Assistant Solicitor General (Barbara D. \\n Underwood, Solicitor General, Steven C. Wu, \\n Deputy Solicitor General, on the brief), for Letitia \\n James, Attorney General for the State of New \\n York, New York, New York, for Defendants‐\\n Appellants. \\n ___________ \\n\\n \\n\\n\\n 2 \\n \\n\\fCHIN, Circuit Judge: \\n\\n Article 17A of the New York Surrogateʹs Court Procedure Act (the \\n\\nʺSCPAʺ) governs guardianship proceedings in New York State Surrogateʹs Court \\n\\nfor individuals with intellectual and developmental disabilities. The statute was \\n\\nenacted in 1969 to permit the appointment of parents or other interested persons \\n\\nas guardians for individuals unable to care for themselves. Plaintiff‐appellant \\n\\nDisability Rights New York (ʺDRNYʺ) brought this action below contending that \\n\\nthe statute is unconstitutional because it does not provide adequate protection \\n\\nfor these individuals, and seeking declaratory and injunctive relief to compel \\n\\ndefendants‐appellees ‐‐ the State of New York, its court system, and its Chief \\n\\nJudge and Chief Administrative Judge (ʺDefendantsʺ) ‐‐ to alter the manner in \\n\\nwhich guardianship proceedings are conducted. \\n\\n The district court did not reach the merits of DRNYʹs claims as it \\n\\ngranted Defendantsʹ motion for judgment on the pleadings, abstaining pursuant \\n\\nto Younger v. Harris, 401 U.S. 37 (1971), and OʹShea v. Littleton, 414 U.S. 488 (1974). \\n\\n For the reasons set forth below, we affirm the judgment of the \\n\\ndistrict court.1 \\n\\n \\n1 As we affirm on abstention grounds, we do not reach the issue of standing raised \\nby Defendants on appeal because we may ʺdecide a case under Younger without \\n 3 \\n \\n\\f BACKGROUND \\n\\nA. Relevant Statutory Provisions \\n\\n New York State utilizes two primary procedures related to legal \\n\\nguardianships: Article 17A of the Surrogateʹs Court Procedure Act (the ʺSCPAʺ) \\n\\nand Article 81 of the New York Mental Hygiene Law (the ʺMHLʺ). \\n\\n 1. Article 17A \\n\\n Article 17A governs guardianship proceedings in New York State \\n\\nSurrogateʹs Court for individuals with intellectual and developmental \\n\\ndisabilities. It was designed primarily to allow parents to serve as long‐term \\n\\nguardians of children who cannot care for themselves. See In re Chaim A.K., 885 \\n\\nN.Y.S.2d 582, 586 (Sur. Ct. New York County 2009). Guardianships are not \\n\\nlimited, however, to parent‐child relationships, and guardianship can be \\n\\nobtained by any ʺinterested person,ʺ including certain non‐profit organizations. \\n\\nSee SCPA §§ 1751, 1760. \\n\\n\\n\\n\\n \\naddressing [DRNYʹs] constitutional standing to bring suit.ʺ Spargo v. N.Y. State Commʹn \\non Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003); see also Ruhrgas AG v. Marathon Oil Co., \\n526 U.S. 574, 585 (1999) (reaffirming the inherent flexibility that federal courts exercise \\nʺto choose among threshold groundsʺ for disposing of a case without reaching the \\nmerits). \\n 4 \\n \\n\\f Article 17A guardianships, which allocate broad decision‐making \\n\\nauthority to the petitioner over the individual with alleged disabilities, are \\n\\nobtained through judicial proceedings before the New York Surrogateʹs Court. \\n\\nSee In re Chaim A.K., 885 N.Y.S.2d at 585. These procedures are designed to be \\n\\naccessible to lay people. See id. ʺVirtually allʺ Article 17A proceedings are \\n\\nuncontested and devoid of controversy. See In re Derek, 821 N.Y.S.2d 387, 390 \\n\\n(Sur. Ct. Broome County 2006). \\n\\n An Article 17A proceeding commences with service of notice by the \\n\\nperson seeking guardianship to a wide range of interested parties. See SCPA \\n\\n§ 1753. The court then conducts a hearing at ʺwhich [the potential ward] shall \\n\\nhave the right to a jury trial.ʺ Id. § 1754(1). The court can dispense with a \\n\\nhearing with the consent of both parents. Id. The individual with an alleged \\n\\ndisability shall be present at the hearing, unless the court is satisfied that such \\n\\nperson is ʺmedically incapable of being presentʺ or that her presence would not \\n\\nbe in her best interest. Id. § 1754(3). Though Article 17A does not provide for the \\n\\nright to an attorney, courts have sometimes appointed attorneys in difficult \\n\\ncases. See, e.g., In re Zhuo, 42 N.Y.S.3d 530, 532 (Sur. Ct. Kings County 2016). To \\n\\nobtain an Article 17A guardianship, a petitioner must present proof that two \\n\\n\\n\\n 5 \\n \\n\\fphysicians (or a physician and a psychologist) have certified that (1) the \\n\\nindividual has an intellectual or developmental disability that makes managing \\n\\nher own life impractical, (2) the situation is ʺpermanentʺ or ʺlikely to continue \\n\\nindefinitely,ʺ and (3) guardianship is in the individualʹs best interests. See SCPA \\n\\n§§ 1750, 1750‐a. Courts have recognized that the ʺbest interestsʺ standard is a \\n\\nlower standard of proof than the clear and convincing evidence standard. In re \\n\\nMueller, 887 N.Y.S.2d 768, 769 (Sur. Ct. Dutchess County 2009). Once a petition is \\n\\ngranted, the court retains jurisdiction over the guardianship and may modify it \\n\\nat the request of the ward or anyone acting on her behalf. See SCPA §§ 1755, \\n\\n1758. \\n\\n 2. Article 81 \\n\\n Article 81 governs guardianship proceedings in New York State \\n\\nSupreme Court. Unlike Article 17A, Article 81 is designed primarily to deal with \\n\\nelderly, disabled adults. In re Lavecchia, 170 Misc. 3d 211, 213 (Sup. Ct. Rockland \\n\\nCounty 1996). Article 81 is not limited to individuals diagnosed with specific \\n\\ndisabilities, but instead is designed for adults with ʺfunctional limitationsʺ that \\n\\nimpede their ability to provide for their own personal needs. MHL § 81.02. \\n\\n\\n\\n\\n 6 \\n \\n\\f Article 81 has different requirements than Article 17A. For example, \\n\\nunder Article 81 the court must hold a hearing, at which the prospective ward \\n\\nmust be present. Id. § 81.11(a), (c). At the hearing, the petitioner has the burden \\n\\nof establishing the need for guardianship by ʺclear and convincing evidence.ʺ Id. \\n\\n§§ 81.02(b), 81.12(a). And once a petition has been granted, guardians have \\n\\nongoing disclosure requirements. See, e.g., id. § 81.31 (requiring the guardian to \\n\\nfile an annual report with the supervising court). In sum, Article 81 proceedings \\n\\ncontain more checks and oversight than Article 17A proceedings: They require \\n\\nmore detailed pleadings, proof, and notice, and they provide appointed counsel, \\n\\na hearing that the potential ward must attend, ongoing supervision and \\n\\nreporting, and narrowly tailored guardianship powers. These more robust \\n\\nstandards form the basis for DRNYʹs argument on the merits. \\n\\nB. Procedural Background \\n\\n On September 21, 2016, DRNY brought this action to, inter alia, \\n\\nenjoin defendants from appointing legal guardians pursuant to Article 17A. \\n\\nDRNY alleges that Article 17A proceedings, as currently administered, do not \\n\\nmeet the standards of due process and equal protection. Rather than citing the \\n\\ncircumstances of specific individuals subject to Article 17A proceedings, \\n\\n\\n\\n 7 \\n \\n\\fhowever, DRNYʹs complaint relies primarily on a comparison of the two New \\n\\nYork State guardianship schemes ‐‐ Article 71A of the SCPA and Article 81 of the \\n\\nMHL. \\n\\n DRNY brought suit pursuant to (1) 42 U.S.C. § 1983, (2) Section 504 \\n\\nof the Rehabilitation Act of 1973 (the ʺRehabilitation Actʺ), 29 U.S.C. § 794, and \\n\\n(3) Title II of the Americans with Disabilities Act (the ʺADAʺ), 42 U.S.C. § 12132. \\n\\nDRNY asked for a declaration that Article 17A violates the Constitution, the \\n\\nADA, and the Rehabilitation Act. It also sought an injunction requiring \\n\\ndefendants to take certain actions in Article 17A guardianship proceedings, such \\n\\nas providing notice, applying a certain burden of proof, and providing \\n\\nsubstantive and procedural rights equal to those provided in Article 81 \\n\\nproceedings. Appʹx at 41‐42. \\n\\n Defendants answered the complaint and moved for judgment on the \\n\\npleadings. On August 16, 2017, the district court granted defendantsʹ motion on \\n\\nabstention grounds pursuant to Younger v. Harris, 401 U.S. 37 (1971), and OʹShea \\n\\nv. Littleton, 414 U.S. 488 (1974). The district court held that DRNYʹs claims fell \\n\\nʺsquarelyʺ under the third of the three categories of cases in which Younger \\n\\nprinciples require a federal court to refuse to exercise its jurisdiction in deference \\n\\n\\n\\n 8 \\n \\n\\fto state courts. Disability Rights N.Y. v. New York, No. 16‐cv‐7363, 2017 WL \\n\\n6388949, at *2 (S.D.N.Y. Aug. 16, 2017) (citing Sprint Commcʹns, Inc. v. Jacobs, 571 \\n\\nU.S. 69, 78 (2013)). The district court also relied on OʹShea, holding that the \\n\\nproposed injunction would impose ʺstandards on state court proceedings that \\n\\nʹwould require for their enforcement the continuous supervision by the federal \\n\\ncourt over the conduct ofʹ those proceedings.ʺ Id. (quoting OʹShea, 414 U.S. at 501 \\n\\n(alteration omitted)). DRNY timely appealed.2 \\n\\n DISCUSSION \\n\\n DRNY argues that the district court erred in abstaining from \\n\\nexercising its jurisdiction. In particular, DRNY argues that the district court \\n\\nerred in holding that the third Younger category applies. It also argues that the \\n\\ndistrict courtʹs reliance on OʹShea is misplaced. For the reasons set forth below, \\n\\nwe conclude that the district court correctly abstained under OʹShea. \\n\\nI. Applicable Law \\n\\n We review de novo the ʺessentiallyʺ legal determination of whether \\n\\nthe requirements for abstention have been met. Diamond ʺDʺ Constr. Corp. v. \\n\\n\\n\\n \\n2 ʺ[A]n order of abstention is considered final for purposes of appeal, at least when \\nthe order applies to the entire complaint.ʺ Pathways, Inc. v. Dunne, 329 F.3d 108, 113 (2d \\nCir. 2003). \\n 9 \\n \\n\\fMcGowan, 282 F.3d 191, 197‐98 (2d Cir. 2002); accord Schlager v. Phillips, 166 F.3d \\n\\n439, 441 (2d Cir. 1999). \\n\\n In general, ʺfederal courts are obliged to decide cases within the \\n\\nscope of federal jurisdiction.ʺ Sprint, 571 U.S. at 72. The Supreme Court, \\n\\nhowever, has recognized ʺcertain instances in which the prospect of undue \\n\\ninterference with state proceedings counsels against federal relief.ʺ Id. \\n\\n Federal courts must abstain where a party seeks to enjoin an \\n\\nongoing, parallel state criminal proceeding, to preserve the ʺlongstanding public \\n\\npolicy against federal court interference with state court proceedingsʺ based on \\n\\nprinciples of federalism and comity. Younger, 401 U.S. at 43‐44. The Younger \\n\\ndoctrine has been extended beyond ongoing criminal cases to include particular \\n\\nstate civil proceedings akin to criminal prosecutions, see Huffman v. Pursue, Ltd., \\n\\n420 U.S. 592 (1975), or that implicate a stateʹs interest in enforcing the orders and \\n\\njudgments of its courts, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). In Sprint, \\n\\nthe Supreme Court held that Youngerʹs scope is limited to these three \\n\\nʺexceptionalʺ categories ‐‐ ʺongoing state criminal prosecution,ʺ ʺcertain civil \\n\\nenforcement proceedings,ʺ and ʺcivil proceedings involving certain orders \\n\\n\\n\\n\\n 10 \\n \\n\\funiquely in furtherance of the state courtsʹ ability to perform their judicial \\n\\nfunctions.ʺ Sprint, 571 U.S. at 78. \\n\\n Here, only the third category is at issue: civil proceedings involving \\n\\ncertain orders uniquely in furtherance of the state courtsʹ ability to perform their \\n\\njudicial functions. Civil contempt orders and orders requiring the posting of \\n\\nbonds on appeal fall into this category. See NOPSI v. Council of City of New \\n\\nOrleans, 491 U.S. 350, 368 (1989) (citing Juidice v. Vail, 430 U.S. 327, 336 n.12 (1977); \\n\\nPennzoil Co., 481 U.S. at 13). In Juidice, the Supreme Court abstained from \\n\\ninterfering with the ability of New York state courts to issue contempt decrees \\n\\nbecause ʺ[t]he contempt power lies at the core of the administration of a Stateʹs \\n\\njudicial system,ʺ and ʺstands in aid of the authority of the judicial system, so that \\n\\nits orders and judgments are not rendered nugatory.ʺ 430 U.S. at 335, 336 n.12. \\n\\nIn Pennzoil, the Supreme Court abstained from interfering with the ability of \\n\\nTexas state courts to require the posting of appeal bonds because of the \\n\\nʺimportance to the States of enforcing the orders and judgments of their courts.ʺ \\n\\n481 U.S. at 13. We recently followed this line of cases in finding that abstention \\n\\nwas appropriate in a case seeking to enjoin New York courts from ordering \\n\\n\\n\\n\\n 11 \\n \\n\\fattorneysʹ fees in child custody cases. See Falco v. Justices of Matrimonial Parts of \\n\\nSupreme Court of Suffolk Cty., 805 F.3d 425, 428 (2d Cir. 2015). \\n\\n Although Younger mandates abstention only when the plaintiff seeks \\n\\nto enjoin ongoing state proceedings and only in the three instances identified in \\n\\nSprint, the Supreme Court has also held that even where no state proceedings are \\n\\npending, federal courts must abstain where failure to do so would result in ʺan \\n\\nongoing federal audit of state criminal proceedings.ʺ OʹShea, 414 U.S. at 500. In \\n\\nOʹShea, the plaintiffs sought to enjoin state court judges from carrying out \\n\\nallegedly unconstitutional policies and practices relating to bond setting, \\n\\nsentencing, and jury fees in criminal cases. Id. at 491‐92. The Court held that ʺan \\n\\ninjunction aimed at controlling or preventing the occurrence of specific events \\n\\nthat might take place in the course of future state criminal trialsʺ would amount \\n\\nto ʺnothing less than an ongoing federal audit of state . . . proceedings which \\n\\nwould indirectly accomplish the kind of interference that [Younger] and related \\n\\ncases sought to prevent.ʺ Id. at 500. Thus, to avoid effecting ʺa major continuing \\n\\nintrusion of the equitable power of the federal courts into the daily conduct of \\n\\nstate criminal proceedings,ʺ which is ʺantipathetic to established principles of \\n\\ncomity,ʺ id. at 501‐02, federal courts must be constantly mindful of the ʺspecial \\n\\n\\n\\n 12 \\n \\n\\fdelicacy of the adjustment to be preserved between federal equitable power and \\n\\nState administration of its own law,ʺ id. at 500 (quoting Stefanelli v. Minard, 342 \\n\\nU.S. 117, 120 (1951)). Hence, OʹShea is an extension of the principles set forth in \\n\\nYounger, and although Younger does not apply in the absence of pending \\n\\nproceedings, see Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (ʺAbsent any \\n\\npending proceeding in state tribunals, therefore, application by the lower courts \\n\\nof Younger abstention was clearly erroneous.ʺ (emphasis in original)), the \\n\\nconsiderations underlying Younger are still very much at play even when a suit is \\n\\nfiled prior to the onset of state proceedings, see OʹShea, 414 U.S. at 500; see also \\n\\nCourthouse News Serv. v. Brown, 908 F.3d 1063, 1072 (7th Cir. 2018) (ʺWhile this \\n\\ncase does not fit neatly into the Younger doctrine, it fits better into the Supreme \\n\\nCourtʹs extension of the Younger principles in OʹShea . . . .ʺ). \\n\\n Like Younger, OʹShea has also been applied in certain civil contexts \\n\\ninvolving the operations of state courts. See Kaufman v. Kaye, 466 F.3d 83, 86 (2d \\n\\nCir. 2006) (abstaining under OʹShea from enjoining internal state court judicial \\n\\nassignment procedures). Many of our sister circuits have abstained in similar \\n\\nsituations. See Courthouse News Serv., 908 F.3d at 1065‐66 (abstaining under \\n\\nOʹShea, and the principles of federalism and comity that underly it, from \\n\\n\\n\\n 13 \\n \\n\\fenjoining the Clerk of the Circuit Court of Cook County to release newly filed \\n\\ncomplaints at the moment of receipt); Oglala Sioux Tribe v. Fleming, 904 F.3d 603, \\n\\n612 (8th Cir. 2018) (abstaining under OʹShea from enjoining allegedly \\n\\nunconstitutional child custody proceedings because ʺ[t]he relief requested would \\n\\ninterfere with the state judicial proceedings by requiring the defendants to \\n\\ncomply with numerous procedural requirementsʺ and ʺfailure to comply with \\n\\nthe district court’s injunction would subject state officials to potential sanctionsʺ); \\n\\nMiles v. Wesley, 801 F.3d 1060, 1064, 1066 (9th Cir. 2015) (abstaining under OʹShea \\n\\nfrom enjoining the Los Angeles Supreme Court from reducing the number of \\n\\ncourthouses used for unlawful detainer actions); Hall v. Valeska, 509 F. Appʹx 834, \\n\\n835‐36 (11th Cir. 2012) (per curiam) (abstaining under OʹShea from enjoining \\n\\nallegedly discriminatory jury selection procedures); Parker v. Turner, 626 F.2d 1, 8 \\n\\n& n.18 (6th Cir. 1980) (providing that OʹShea establishes a rule of ʺnear‐absolute \\n\\nrestraint . . . to situations where the relief sought would interfere with the day‐to‐\\n\\nday conduct of state trialsʺ).3 \\n\\n\\n \\n3 While the Supreme Court in Sprint made clear that Youngerʹs scope should be \\nlimited to the three specified categories, 134 S. Ct. at 591, 594, the Court did not suggest \\nthat abstention under OʹShea should be circumscribed. Indeed, courts have continued \\nto apply OʹShea even after Sprint. See, e.g., Courthouse News Serv., 908 F.3d at 1072; \\nOglala Sioux Tribe, 904 F.3d at 612; Miles, 801 F.3d at 1064‐65. \\n \\n 14 \\n \\n\\fII. Application \\n\\n DRNY first argues that the third category of Younger does not apply \\n\\nto this case because there is no pending, parallel state court action. Indeed, \\n\\nDRNY is not seeking to enjoin any specific pending action, but it is instead \\n\\nseeking to affect the manner in which all Article 17A proceedings ‐‐ present and \\n\\nfuture ‐‐ are conducted.4 Mindful of the Supreme Courtʹs admonition that the \\n\\nthree ʺexceptionalʺ categories under Younger are to be narrowly construed, \\n\\nSprint, 571 U.S. at 73, 78, 82 (noting that the three categories ʺdefine Youngerʹs \\n\\nscope,ʺ that Younger extends ʺno further,ʺ and that it has not ʺapplied Younger \\n\\noutside these three ʹexceptionalʹ categoriesʺ), we do not decide whether this case \\n\\nfits within the third Younger category, for we conclude that it falls squarely \\n\\nwithin OʹSheaʹs abstention framework. \\n\\n Our decision in Kaufman v. Kaye is instructive. There, we abstained \\n\\nunder OʹShea from declaring that New York Stateʹs system for assigning cases \\n\\n\\n\\n \\n4 We note that DRNYʹs complaint lacks nearly any specificity in its pleading. The \\ncomplaint itself merely compares the aspects of two pieces of legislation and fails to \\nmention a single individual by name. Indeed, DRNY ʺtenders ʹnaked assertionsʹ devoid \\nof ʹfurther factual enhancement.ʹʺ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration \\nomitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). As drafted, \\nDRNYʹs pleading ʺgive[s] no indication of the circumstances that support the \\nconclusory allegation of unlawfulness.ʺ Drimal v. Tai, 786 F.3d 219, 224 (2d Cir. 2015). \\n 15 \\n \\n\\famong panels of appellate judges violated the Constitution and we refused to \\n\\norder the state legislature to establish a new procedure for assigning appeals. \\n\\nKaufman, 466 F.3d at 84‐85, 87. Doing so, we held, would ʺraise compliance \\n\\nissues under the putative federal injunctionʺ as well as claims that ʺthe state \\n\\ncourtʹs chosen remedy violated the Constitution or the terms of that injunction,ʺ \\n\\nwhich ʺwould inevitably lead to precisely the kind of piecemeal interruptions of \\n\\nstate proceedings condemned in OʹShea.ʺ Id. at 87 (internal quotation marks and \\n\\nellipsis omitted). A recent decision of the Ninth Circuit is also helpful. In Miles \\n\\nv. Wesley, the Ninth Circuit abstained under OʹShea from enjoining the Los \\n\\nAngeles Supreme Court from, inter alia, eliminating any courthouses that heard \\n\\nunlawful detainer actions. 801 F.3d at 1064. The court held that the requested \\n\\ninjunction would result in ʺheavy federal interference in such sensitive state \\n\\nactivities as administration of the judicial system.ʺ Id. at 1063 (quoting L.A. Cty. \\n\\nBar Assʹn v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)). \\n\\n In seeking the injunction in this case, DRNY asked the district court \\n\\n(and asks this Court now) to direct the New York State Unified Court System, the \\n\\nChief Judge of the State of New York, and the Chief Administrative Judge for the \\n\\nCourts of New York to (1) notify all current Article 17A wards of their right to \\n\\n\\n\\n 16 \\n \\n\\frequest modification or termination of their guardianship order, (2) hold \\n\\nproceedings that provide augmented substantive and procedural rights ʺno less \\n\\nthanʺ those of Article 81 proceedings, and (3) cease future Article 17A \\n\\nadjudications ʺuntil defendants ensure that the proceedings provide substantive \\n\\nand procedural rightsʺ on par with those of Article 81 proceedings. Appʹx at 42. \\n\\n As in OʹShea, DRNYʹs requested relief would effect a continuing, \\n\\nimpermissible ʺauditʺ of New York Surrogateʹs Court proceedings, which would \\n\\noffend the principles of comity and federalism. Simply put, DRNY seeks to \\n\\nʺcontrol[] or prevent[] the occurrence of specific events that might take place in \\n\\nthe court of future state [Article 17A proceedings.]ʺ OʹShea, 414 U.S. at 500. With \\n\\nsuch an injunction in place, anyone seeking or objecting to Article 17A \\n\\nguardianship in the future would be able to ʺraise compliance issues under the \\n\\nputative federal injunction claiming that the state courtʹs chosen remedy violated \\n\\nthe Constitution or the terms of that injunction.ʺ Kaufman, 466 F.3d at 87; see also \\n\\nid. (ʺ[A]ny remedy fashioned by the state would then be subject to future \\n\\nchallenges in the district court.ʺ). Ongoing, case‐by‐case oversight of state courts, \\n\\nlike the New York Surrogateʹs Court, is exactly the sort of interference OʹShea \\n\\nseeks to avoid. Kaufman, 466 F.3d at 86 (ʺ[F]ederal courts may not entertain \\n\\n\\n\\n 17 \\n \\n\\factions . . . that seek to impose ʹan ongoing federal audit of state . . . \\n\\nproceedings.ʹʺ (quoting OʹShea, 414 U.S. at 500)). Indeed, such ʺmonitoring of the \\n\\noperation of state court functions . . . is antipathetic to established principles of \\n\\ncomity.ʺ OʹShea, 414 U.S. at 501‐02. Because this Court has ʺno power to \\n\\nintervene in the internal procedures of the state courtsʺ and cannot ʺlegislate and \\n\\nengraft new procedures upon existing state . . . practices,ʺ the district court \\n\\ncorrectly abstained from exercising jurisdiction in this case. See Kaufman, 466 \\n\\nF.3d at 86 (quoting Wallace v. Kern, 520 F.2d 400, 404‐05 (2d Cir. 1975)). \\n\\n DRNY argues that federal courts have often found state statutes \\n\\nunconstitutional, including statutes resulting in the issuance of state court orders. \\n\\nIt cites landmark decisions such as Obergefell v. Hodges, 135 S. Ct. 2584 (2015) \\n\\n(holding that Michiganʹs law prohibiting same‐sex marriage violated equal \\n\\nprotection and due process rights), and Blakely v. Washington, 542 U.S. 296 (2004) \\n\\n(holding that Washingtonʹs sentencing law violates the Sixth Amendment). But \\n\\nthose cases did not implicate Younger. Plaintiffs in Obergefell challenged \\n\\nsubstantive state statutes, and plaintiffs in Blakely simply appealed a final \\n\\njudgment of the state courts. Here, DRNY seeks a far more substantial invasion \\n\\nof state courtsʹ domain; it would have federal courts conduct a preemptive \\n\\n\\n\\n 18 \\n \\n\\freview of state court procedure in guardianship proceedings, an area in which \\n\\nstates have an especially strong interest. See Falco, 805 F.3d at 427. Such review \\n\\nwould directly impede ʺthe normal course of . . . proceedings in the state courts.ʺ \\n\\nOʹShea, 414 U.S. at 500; see also Sprint, 571 U.S. at 73 (noting that abstention is \\n\\nproper where relief would impede ʺthe state courtsʹ ability to perform their \\n\\njudicial functions.ʺ (quoting NOPSI, 491 U.S. at 368)). \\n\\n DRNY also seeks to have Article 17A declared unconstitutional and \\n\\nviolative of the Americans with Disability Act and Section 504 of the \\n\\nRehabilitation Act of 1973. DRNY argues that its request for declaratory relief is \\n\\nnot subject to abstention, as a declaratory judgment would not order the state \\n\\ncourts to take certain actions. We are not persuaded. In Samuels v. Mackell, the \\n\\nSupreme Court held that ʺordinarily a declaratory judgment will result in \\n\\nprecisely the same interference with and disruption of state proceedings that the \\n\\nlongstanding policy limiting injunctions was designed to avoid.ʺ 401 U.S. 66, 72 \\n\\n(1971); see also Miles, 801 F.3d at 1063‐64 (noting that where OʹShea is implicated, \\n\\neven where plaintiffs narrow their request only to declaratory relief, abstention is \\n\\nproper where the relief sought ʺwould inevitably set up the precise basis for \\n\\nfuture intervention condemned in OʹSheaʺ because ʺthe question of defendantsʹ \\n\\n\\n\\n 19 \\n \\n\\fcompliance with any remedy imposed could be the subject of future court \\n\\nchallengesʺ (internal citations omitted)); Kaufman, 466 F.3d at 85 (abstaining \\n\\nunder OʹShea from hearing Kaufmanʹs complaint seeking injunctive and \\n\\ndeclaratory relief). Thus, the district court properly abstained from exercising \\n\\njurisdiction even as to DRNYʹs request for declaratory relief. \\n\\n We conclude by noting that abstention here is supported by the \\n\\nʺavailability of other avenues of relief.ʺ OʹShea, 414 U.S. at 504. DRNY may still \\n\\navail itself of the state courts to challenge the constitutionality of Article 17A \\n\\nproceedings. See Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., \\n\\n156 F.3d 432, 435 (2d Cir. 1998) (ʺState courts are courts of general jurisdiction \\n\\nand are accordingly presumed to have jurisdiction over federally‐created causes \\n\\nof action unless Congress indicates otherwise.ʺ). DRNY and any aggrieved \\n\\nindividuals will be able to obtain sufficient review in state court and, if needed, \\n\\nthe Supreme Court of the United States. See Allen v. McCurry, 449 U.S. 90, 105 \\n\\n(1980) (noting the Supreme Courtʹs confidence in state courts to adjudicate \\n\\nconstitutional issues); Kaufman, 466 F.3d at 87‐88. Indeed, New York state courts \\n\\nhave been diligent in reviewing the sufficiency of Article 17A proceedings, see, \\n\\ne.g., In re Mark C.H., 906 N.Y.S.2d 419, 427 (Sur. Ct. New York County 2010); In re \\n\\n\\n\\n 20 \\n \\n\\fD.D., 19 N.Y.S.3d 867, 869‐71 (Sur. Ct. Kings County 2015), and understand well \\n\\nthe differences between Article 17A proceedings and Article 81 proceedings, see \\n\\nIn re Chaim A.K., 885 N.Y.S.2d at 584‐90. \\n\\n CONCLUSION \\n\\n Accordingly, for the reasons set forth above, the judgment of the \\n\\ndistrict court is AFFIRMED. \\n\\n\\n\\n\\n 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]"}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":4,"numItemsPerPage":100,"numTotalItems":31175,"offset":400,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc3MjQwMzA3MCwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3NzI0MDY2NzAsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.0R1Zvkdtyy9phVUqLLLVyr-CupB9oBmcxElKIaoRnoYlivRGvxxS8YKNzBonuHMwdbJDDyk5N-IEncanha24DQ","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,583,317 | United States v. Maritime Life Caribbean Limited | 2019-01-16 | 17-10889 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, * District Judge.", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-10889\n ________________________\n\n D.C. Docket No. 1:05-cr-20859-PCH-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nMARITIME LIFE CARIBBEAN LIMITED,\n\n Interested Party-Appellant,\n\nRAUL J. GUTIERREZ,\n\n Defendant.\n\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _______________________\n\n (January 16, 2019)\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 2 of 16\n\n\nBefore WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, *\n\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n This appeal involves two questions about an ancillary third-party forfeiture\n\nproceeding in which Maritime Life Caribbean asserted that it was given a security\n\ninterest in the forfeited property: whether the district court erred in requiring\n\nMaritime Life to prove the authenticity of the collateral assignment that allegedly\n\ngranted it a security interest in the forfeited property by a preponderance of the\n\nevidence, and whether the district court erred in permitting the Republic of\n\nTrinidad and Tobago to intervene in the forfeiture proceeding even though it had\n\nno legal interest in the property. We conclude that, although both rulings were in\n\nerror, neither error warrants reversal. We affirm.\n\n I. BACKGROUND\n\n Raul Gutierrez pleaded guilty in 2006 to a variety of wire- and bank-fraud\n\ncharges arising from a bid-rigging scheme involving the construction of an airport\n\nin Trinidad and Tobago. After sentencing, the district court entered a preliminary\n\norder of forfeiture against him in the amount of $22,556,100, representing the\n\nproceeds of his criminal activity. The forfeiture included Gutierrez’s interest in a\n\npiece of real property located at 12850 Red Road in Coral Cables, Florida, the title\n\n\n*\n The Honorable Lisa Godbey Wood, United States District Judge for the Southern District of\nGeorgia, sitting by designation.\n\n\n 2\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 3 of 16\n\n\nfor which was held by Inversiones Rapidven, S.A. Although the plea agreement\n\nexhaustively listed Gutierrez’s assets and liabilities, it did not mention any\n\nencumbrance on the Red Road property.\n\n The Republic of Trinidad and Tobago moved to intervene in the forfeiture\n\nproceeding under Federal Rule of Criminal Procedure 32.2. Trinidad asserted that\n\nit was a victim of the bid-rigging conspiracy and that it had an interest in any\n\nforfeiture proceeds that might result from the sale of the Red Road property, but it\n\ndid not assert any legal interest in the property itself. The district court expressed\n\nskepticism about the propriety of permitting Trinidad to intervene and\n\nacknowledged that it was “not sure if [Trinidad has] standing” under the statute\n\ngoverning criminal forfeitures, 21 U.S.C. § 853. Despite these misgivings, the\n\ndistrict court granted Trinidad’s motion to intervene. It directed Trinidad and the\n\ngovernment to “form a committee on the government[/]victim side and decide who\n\nwill be speaking for that group.”\n\n At a later status conference, the government expressed concern over a\n\n“potential conflict” between the parties’ interests and argued that victims like\n\nTrinidad do not “have standing in a forfeiture proceeding.” The district court\n\ndisregarded this concern on the ground that the government was “going to get a lot\n\nof cooperation from the lawyers for [Trinidad]” and Trinidad probably would end\n\nup “carrying the laboring oar . . . from this point forward.” In the district court’s\n\n\n\n 3\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 4 of 16\n\n\nview, Trinidad’s intervention was permissible because it was the party who was\n\n“going to benefit if the government wins on the forfeiture.”\n\n In 2010, the district court instructed the government to issue a Notice of\n\nCriminal Forfeiture addressed to Steve Ferguson, the former chief executive officer\n\nof Maritime Life. Ferguson and Gutierrez were longtime business associates and\n\nfriends, and both were implicated in the criminal charges underlying the forfeiture\n\nproceeding. Maritime responded to the notice by filing a third-party claim asserting\n\nan interest in the Red Road property under the criminal-forfeiture statute, 21\n\nU.S.C. § 853(n), and Rule 32.2(c). To support its claim, Maritime produced an\n\nalleged collateral assignment that purported to memorialize a transaction in which\n\nGutierrez granted a security interest in the Red Road property to Maritime as\n\ncollateral for a $2 million loan to Keystone Property Developers, Ltd., Gutierrez’s\n\nconstruction company. The alleged assignment is dated July 24, 2001 and was\n\nsigned by Gutierrez in his capacity as president of Calmaquip Engineering\n\nCorporation, but it was never recorded.\n\n The government and Trinidad opposed Maritime’s claim. The parties then\n\nengaged in protracted discovery in which Trinidad played a significant role,\n\nleading 14 depositions on behalf of the government. Maritime objected to\n\nTrinidad’s participation in the litigation, but the district court denied its motion.\n\nThe district court acknowledged that Trinidad “does not have a direct claim under\n\n\n\n 4\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 5 of 16\n\n\n[section] 853 or under the forfeiture claim” but permitted Trinidad to proceed, “not\n\nin [its] own rights, but . . . to do the work on behalf of the government.”\n\n After discovery, Trinidad and the government jointly moved for summary\n\njudgment, but the district court denied that motion. Instead, it sua sponte decided\n\nto hold a bifurcated trial with an initial phase focused solely on the question\n\nwhether “to admit the collateral assignment as being genuine and authentic” under\n\nFederal Rule of Evidence 901. The second phase was to address the merits of\n\nMaritime’s interest in the Red Road property. The district court explained that the\n\nquestion of authenticity was “a nice clean issue” that, if resolved against Maritime,\n\nwould obviate the need to resolve the complicated dispute about the legal effect of\n\nan unrecorded assignment of a security interest in real property for which\n\nGutierrez, the party who allegedly conveyed the assignment, did not hold title.\n\nMaritime objected on the ground that the authenticity issue should be consolidated\n\nwith the merits issues, but it later conceded that an adverse ruling on authenticity\n\nwould make the “other issues . . . go away.”\n\n At the hearing for the first phase of trial, Maritime presented three witnesses:\n\nLesley Alfonso, the Maritime director who allegedly discovered the collateral\n\nassignment; Frank Norwitch, a certified document examiner who reviewed the\n\ncollateral assignment; and Raul Gutierrez, who allegedly signed the assignment.\n\nThe government presented no live witnesses. Alfonso testified that in early 2010,\n\n\n\n 5\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 6 of 16\n\n\nAndrew Ferguson, Maritime’s chief executive officer and the son of Steve\n\nFerguson, asked her to search for any documents related to the Red Road property.\n\nShe asserted that she discovered the assignment in the files of a deceased Maritime\n\nexecutive who had managed the loan transaction with Gutierrez. Alfonso also\n\ntestified that she returned to the storage room to ensure that there were no other\n\ndocuments responsive to the description she was given. Cross-examination by the\n\ngovernment and questioning by the district court made clear that this testimony\n\nconflicted with Alfonso’s earlier deposition testimony, in which she agreed that\n\nshe did not have “occasion to go back into the storage room and look at the folder\n\nor anything else that was around that document.”\n\n Norwitch testified as an expert after the government stipulated to his\n\nqualifications. He testified that he examined the watermark and the ink used in\n\nboth the typed and handwritten portions of the collateral assignment and concluded\n\nthat there was “no evidence that this document was anything other than what it is\n\npurported to be.” But Norwitch explained that the ink used in the document has\n\nbeen in commercial use for decades and that he could not determine “when [the]\n\ndocument was signed.” And Gutierrez testified that he executed the collateral\n\nassignment on July 24, 2001, after Maritime requested additional collateral. He\n\nadmitted that he failed to list the assignment in his presentence investigation report\n\nand testified that he never thought to record the multi-million-dollar transaction.\n\n\n\n 6\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 7 of 16\n\n\nGutierrez also acknowledged that he had been convicted of crimes of fraud and\n\nthat he had falsified his community-service hours after being released from prison.\n\n After the hearing for the first phase of trial, the district court ruled that\n\nMaritime had failed to carry its burden of proving the authenticity of the collateral\n\nassignment “by the greater weight of the evidence.” The court determined that\n\ncircumstantial evidence and unexplained defects present on the face of the\n\ndocument undermined the inference that the assignment was authentic. It also\n\ndetermined that the expert testimony was inconclusive, that Alfonso and Gutierrez\n\nwere not credible, and that virtually no evidence corroborated the authenticity of\n\nthe assignment. Having ruled that the collateral assignment was inauthentic, the\n\ndistrict court concluded that it was unnecessary to proceed to the second phase of\n\ntrial and denied Maritime’s claim.\n\n II. STANDARD OF REVIEW\n\n “We review a district court’s legal conclusions regarding third-party claims\n\nto criminally forfeited property de novo and its factual findings for clear error.”\n\nUnited States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that although the\n\ndistrict court applied the wrong standard when it assessed the authenticity of the\n\nalleged collateral assignment, the error was harmless. Second, we explain that the\n\n\n\n 7\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 8 of 16\n\n\ndistrict court erred by permitting Trinidad to intervene, but this error too does not\n\nwarrant reversal.\n\n A. The District Court Committed Harmless Error in Ruling that the\n Collateral Assignment Was Inauthentic.\n\n The district court ruled that the “burden of proof” was “on Maritime to prove\n\nby the greater weight of the evidence that the collateral assignment” is “an\n\nauthentic document,” but this ruling was in error. Even so, Maritime has suffered\n\nno prejudice.\n\n A two-step process governs the determination of whether a document is\n\nauthentic. The district court must first make a preliminary assessment of\n\nauthenticity under Rule 901, which “requires a proponent to present ‘sufficient\n\nevidence to make out a prima facie case that the proffered evidence is what it\n\npurports to be.’” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)\n\n(quoting United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010)). If the\n\nproponent satisfies this “prima facie burden,” the inquiry proceeds to a second\n\nstep, in which “the evidence may be admitted, and the ultimate question of\n\nauthenticity is then decided by the [factfinder].” Id.; see also In re Int’l Mgmt.\n\nAssocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (“Once [a] prima facie\n\nshowing of authenticity [is] made, the ultimate question of the authenticity of the\n\ndocuments [is] left to the factfinder.”).\n\n\n\n\n 8\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 9 of 16\n\n\n The first phase of the bifurcated trial framework adopted by the district court\n\nwas intended to address only the preliminary question of authenticity. Under the\n\ntwo-step process contemplated by Rule 901, Maritime bore the burden of\n\nestablishing a prima facie case of authenticity at the first stage. Only at the second\n\nstep would “the trier of fact . . . appraise whether the proffered evidence is in fact\n\nwhat it purports to be.” United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir.\n\n1985).\n\n By requiring Maritime to prove authenticity by “the greater weight of the\n\nevidence,” the district court compressed the two steps of the inquiry under Rule\n\n901 into one and conflated the issue of authenticity with the issue of entitlement to\n\nthe proceeds of the sale of the Red Road property, but this technical error need not\n\nwarrant reversal. Federal Rule of Civil Procedure 61 permits reversal based on a\n\ntrial error “only where the error has caused substantial prejudice to the affected\n\nparty (or, stated somewhat differently, affected the party's substantial rights or\n\nresulted in substantial injustice).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d\n\n1154, 1162 (11th Cir. 2004) (internal quotation marks omitted). The error by the\n\ndistrict court prejudiced Maritime only if there is a “reasonable likelihood that the\n\noutcome would have been different” if the district court had ruled that Maritime\n\nsatisfied its burden to prove a prima facie case of authenticity before proceeding to\n\n\n\n\n 9\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 10 of 16\n\n\ndetermine whether Maritime had an interest in the Red Road property. United\n\nStates v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).\n\n Maritime suffered no prejudice. If the district court had followed the process\n\ncontemplated by Rule 901, it would have answered the ultimate question of\n\nauthenticity in the same way; the outcome of the trial would not have differed.\n\n The first phase of the trial featured all of the evidence relevant to the\n\nquestion of authenticity. Maritime was on notice that the district court would apply\n\na preponderance standard in determining whether the assignment was authentic\n\nand had every incentive to produce all relevant evidence. The second phase would\n\nhave been a bench trial, see 21 U.S.C. § 853(n)(2), so the district court inevitably\n\nwould have reached the same answer to the “ultimate question of authenticity”\n\nwhen it acted as the finder of fact. Lebowitz, 676 F.3d at 1009.\n\n The district court was entitled to find that the assignment was not authentic\n\nunder the preponderance standard applicable at the second step of the inquiry\n\nunder Rule 901, and Maritime’s claim was bound to fail if the assignment was\n\ninauthentic. Maritime never asserted any other potential source of an interest in the\n\nRed Road property, and its trial counsel even conceded that it “only has a claim if\n\nit has an assignment.” In other words, Maritime’s claim stood or fell with the\n\nauthenticity of the collateral assignment.\n\n\n\n\n 10\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 11 of 16\n\n\n The collateral assignment was suspect on its face. It was neither witnessed\n\nnor notarized, even though Raul Gutierrez admitted that his secretary was a notary.\n\nThe document does not so much as mention the legal titleholder of the Red Road\n\nproperty, Inversiones Rapidven, and contains no legal description of the property.\n\nThe document was printed on Calmaquip letterhead, even though Lesley Alfonso,\n\na Maritime director, testified that it was the practice of Maritime to prepare its own\n\nloan documents. The assignment was purportedly created to secure a limited\n\nguarantee agreement in which Maritime lent $2 million to Keystone Construction.\n\nThe assignment states that the limited guaranty agreement was attached to it, but\n\nAlfonso testified that nothing was attached to the assignment when she allegedly\n\nfound it. Maritime’s own expert concluded that there was no evidence suggesting\n\nthat anything had ever been attached to the assignment. And the assignment was\n\nnever recorded—an astonishing oversight in a multi-million-dollar transaction.\n\n Circumstantial evidence also supported the finding that the assignment was\n\ninauthentic. The limited guaranty agreement makes no mention of the collateral\n\nassignment. And as the district court explained, there was “not a single document”\n\nthat “referenced the collateral assignment . . . before or after” the assignment was\n\nallegedly executed, other than a letter that Gutierrez purportedly sent to Richard\n\nLacle, his associate at Inversiones Rapidven. This letter lacked any indicia of\n\nauthenticity, such as a letterhead, physical or email address, or method of\n\n\n\n 11\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 12 of 16\n\n\ntransmission. And Lacle denied ever receiving the letter and suggested that it was\n\nfabricated. And finally, Gutierrez listed the Red Road property as an\n\nunencumbered asset in his presentence investigation report and failed to list the\n\ncollateral assignment as a debt.\n\n Based on this evidence, the district court was entitled to infer that there was\n\na post hoc plot between Gutierrez and Maritime to spare the Red Road property\n\nfrom forfeiture through a fabricated assignment of an interest to Maritime. As we\n\nhave explained, “[a] district court has discretion to determine authenticity, and that\n\ndetermination should not be disturbed on appeal absent a showing that there is no\n\ncompetent evidence in the record to support it.” United States v. Siddiqui, 235 F.3d\n\n1318, 1322 (11th Cir. 2000). Even if we were to assume that Gutierrez’s signature\n\non the assignment is genuine, it is entirely possible that he signed shortly before he\n\nwent to prison in an effort to shield his property from forfeiture. Ample evidence\n\nestablished the existence of a close relationship between Gutierrez and the officers\n\nof Maritime. We reject Maritime’s assertion that Gutierrez could not possibly have\n\nanticipated that the government would seek forfeiture of his property. We expect\n\nthat a person who knows he is under investigation in a case of complex financial\n\nfraud could have foreseen the impending forfeiture.\n\n\n\n\n 12\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 13 of 16\n\n\n Ample evidence supports the finding by the district court on the ultimate\n\nquestion of authenticity. And that finding controlled whether Maritime had an\n\ninterest in the Red Road property. So no prejudicial error occurred.\n\n B. Trinidad’s Intervention Does Not Merit Reversal.\n\n Maritime also argues, and we agree, that the district court erred in\n\npermitting Trinidad, a foreign sovereign, to intervene in the ancillary\n\nproceeding to litigate on behalf of the United States. To represent the United\n\nStates, an attorney must be either a United States Attorney, an assistant United\n\nStates Attorney, or a special attorney. See 28 U.S.C. § 541(a) (creating\n\nprocedures for appointing a United States Attorney for each judicial district); id.\n\n§ 542(a) (creating procedures for appointing assistant United States Attorneys);\n\nid. § 543(a) (creating procedures for appointing special attorneys to assist\n\nUnited States Attorneys). And every attorney representing the United States\n\nmust take an oath of office. See id. § 544 (requiring United States Attorneys,\n\nassistant United States Attorneys, and specially appointed attorneys to take an\n\noath to faithfully execute their duties). Trinidad was not specially appointed to\n\nlitigate on behalf of the United States and took no oath of office.\n\n Nor did Trinidad have standing to intervene to defend its own interests.\n\nCongress has created one—and only one—means for interested third-parties to\n\nparticipate in a criminal-forfeiture proceeding: asserting a “legal right, title, or\n\n\n\n 13\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 14 of 16\n\n\ninterest” sufficient for standing in an ancillary proceeding, 21 U.S.C. § 853(n).\n\nSection 853(k) of the statute governing criminal forfeitures provides that\n\n“[e]xcept as provided in subsection (n), no party claiming an interest in property\n\nsubject to forfeiture under this section” may “intervene in a trial or appeal of a\n\ncriminal case involving the forfeiture of such property under this section.” Id.\n\n§ 853(k). As we have explained, “[a]n ancillary proceeding constitutes the sole\n\nmeans by which a third-party claimant can establish entitlement to return of\n\nforfeited property.” United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir.\n\n2012). Trinidad made no attempt to intervene under section 853(n) and did not\n\nassert any “legal right, title, or interest” in the Red Road property, 21 U.S.C.\n\n§ 853(n).\n\n Although there was no legal basis for Trinidad’s intervention, this error\n\ntoo does not warrant reversal. Maritime makes two arguments about prejudice,\n\nbut neither is persuasive.\n\n First, Maritime argues that Trinidad’s participation was prejudicial\n\nbecause the district court relied on deposition testimony elicited by Trinidad in\n\nfinding a material inconsistency in the testimony of Alfonso. But the bare fact\n\nthat the district court relied in part on evidence generated by Trinidad to\n\ndiscredit Alfonso’s testimony does not prove prejudicial error. As the district\n\ncourt stated, its ruling against Maritime did not depend on its rejection of\n\n\n\n 14\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 15 of 16\n\n\nAlfonso’s testimony. The district court concluded that “even if” Alfonso “were\n\ncredible,” it was “just as likely” that the collateral assignment “could have been\n\nplaced there by anybody, and then she was sent . . . on her merry way to find\n\nthat document.” The district court was entitled to credit this alternative\n\nexplanation of the discovery of the collateral assignment in the light of the\n\nnumerous deficiencies in the document itself and the surrounding circumstantial\n\nevidence that it was not genuine.\n\n The district court also had another, independent ground for discounting\n\nAlfonso’s testimony: that she was not “an unbiased witness.” Alfonso is a\n\nformer employee and current director of Maritime. She had an obvious\n\nincentive to tailor her testimony to support Maritime’s interests. And regardless\n\nof whether we would have regarded this incentive as sufficient to discredit\n\nAlfonso’s testimony in the exercise of our independent judgment, the credibility\n\ndetermination by the district court is binding on us. As we have explained,\n\n“[t]he credibility of a witness is in the province of the factfinder,” and we “will\n\nnot ordinarily review the factfinder’s determination of credibility.” United\n\nStates v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).\n\n Second, Maritime argues, based on Young v. United States ex rel. Vuitton\n\net Fils S.A., 481 U.S. 787 (1987), that permitting a third party to litigate on\n\nbehalf of the United States in an ancillary forfeiture proceeding is structural\n\n\n\n 15\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 16 of 16\n\n\nerror, but this argument is a nonstarter. In Young, a plurality of the Supreme\n\nCourt concluded that the “appointment of an interested prosecutor” in a\n\ncriminal contempt proceeding is a structural error. Id. at 810. This rule does not\n\napply to an ancillary proceeding conducted under section 853(n) because such a\n\nproceeding is civil in nature. See, e.g., United States v. Douglas, 55 F.3d 584,\n\n586 (11th Cir. 1995) (“Congress therefore viewed a [section] 853(n) hearing as\n\na species of an ‘action at law or equity’—a substitute for separate civil litigation\n\nagainst the government.”); United States v. Gilbert, 244 F.3d 888, 907 (11th\n\nCir. 2001), superseded by rule on other grounds as recognized in United States\n\nv. Marion, 562 F.3d 1330 (11th Cir. 2009) (expanding Douglas to other kinds\n\nof forfeitures). Indeed, if there were a constitutional prohibition on interested\n\nprivate parties representing the United States in civil actions, the validity of\n\nstatutes such as the False Claims Act, 31 U.S.C. § 3730, would be doubtful.\n\n Trinidad’s intervention did not affect Maritime’s “substantial rights.”\n\nFed. R. Civ. P. 61. Although the district court erred in permitting a foreign\n\nsovereign with no interest of its own to litigate on behalf of the United States,\n\nthis error does not require reversal of the dismissal of Maritime’s claim.\n\n IV. CONCLUSION\n\n We AFFIRM the judgment in favor of the United States.\n\n\n\n\n 16", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360570/", "author_raw": "WILLIAM PRYOR, Circuit Judge:"}]} | WILLIAM PRYOR | MARTIN | WOOD | 1 | {"WILLIAM PRYOR": ", Circuit", "MARTIN": ", Circuit", "WOOD": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583317/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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{
"content": "[CASE_METADATA]\nCase name: United States v. Maritime Life Caribbean Limited\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-10889 Date Filed: 01/16/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-10889\n ________________________\n\n D.C. Docket No. 1:05-cr-20859-PCH-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nMARITIME LIFE CARIBBEAN LIMITED,\n\n Interested Party-Appellant,\n\nRAUL J. GUTIERREZ,\n\n Defendant.\n\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _______________________\n\n (January 16, 2019)\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 2 of 16\n\n\nBefore WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, *\n\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n This appeal involves two questions about an ancillary third-party forfeiture\n\nproceeding in which Maritime Life Caribbean asserted that it was given a security\n\ninterest in the forfeited property: whether the district court erred in requiring\n\nMaritime Life to prove the authenticity of the collateral assignment that allegedly\n\ngranted it a security interest in the forfeited property by a preponderance of the\n\nevidence, and whether the district court erred in permitting the Republic of\n\nTrinidad and Tobago to intervene in the forfeiture proceeding even though it had\n\nno legal interest in the property. We conclude that, although both rulings were in\n\nerror, neither error warrants reversal. We affirm.\n\n I. BACKGROUND\n\n Raul Gutierrez pleaded guilty in 2006 to a variety of wire- and bank-fraud\n\ncharges arising from a bid-rigging scheme involving the construction of an airport\n\nin Trinidad and Tobago. After sentencing, the district court entered a preliminary\n\norder of forfeiture against him in the amount of $22,556,100, representing the\n\nproceeds of his criminal activity. The forfeiture included Gutierrez’s interest in a\n\npiece of real property located at 12850 Red Road in Coral Cables, Florida, the title\n\n\n*\n The Honorable Lisa Godbey Wood, United States District Judge for the Southern District of\nGeorgia, sitting by designation.\n\n\n 2\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 3 of 16\n\n\nfor which was held by Inversiones Rapidven, S.A. Although the plea agreement\n\nexhaustively listed Gutierrez’s assets and liabilities, it did not mention any\n\nencumbrance on the Red Road property.\n\n The Republic of Trinidad and Tobago moved to intervene in the forfeiture\n\nproceeding under Federal Rule of Criminal Procedure 32.2. Trinidad asserted that\n\nit was a victim of the bid-rigging conspiracy and that it had an interest in any\n\nforfeiture proceeds that might result from the sale of the Red Road property, but it\n\ndid not assert any legal interest in the property itself. The district court expressed\n\nskepticism about the propriety of permitting Trinidad to intervene and\n\nacknowledged that it was “not sure if [Trinidad has] standing” under the statute\n\ngoverning criminal forfeitures, 21 U.S.C. § 853. Despite these misgivings, the\n\ndistrict court granted Trinidad’s motion to intervene. It directed Trinidad and the\n\ngovernment to “form a committee on the government[/]victim side and decide who\n\nwill be speaking for that group.”\n\n At a later status conference, the government expressed concern over a\n\n“potential conflict” between the parties’ interests and argued that victims like\n\nTrinidad do not “have standing in a forfeiture proceeding.” The district court\n\ndisregarded this concern on the ground that the government was “going to get a lot\n\nof cooperation from the lawyers for [Trinidad]” and Trinidad probably would end\n\nup “carrying the laboring oar . . . from this point forward.” In the district court’s\n\n\n\n 3\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 4 of 16\n\n\nview, Trinidad’s intervention was permissible because it was the party who was\n\n“going to benefit if the government wins on the forfeiture.”\n\n In 2010, the district court instructed the government to issue a Notice of\n\nCriminal Forfeiture addressed to Steve Ferguson, the former chief executive officer\n\nof Maritime Life. Ferguson and Gutierrez were longtime business associates and\n\nfriends, and both were implicated in the criminal charges underlying the forfeiture\n\nproceeding. Maritime responded to the notice by filing a third-party claim asserting\n\nan interest in the Red Road property under the criminal-forfeiture statute, 21\n\nU.S.C. § 853(n), and Rule 32.2(c). To support its claim, Maritime produced an\n\nalleged collateral assignment that purported to memorialize a transaction in which\n\nGutierrez granted a security interest in the Red Road property to Maritime as\n\ncollateral for a $2 million loan to Keystone Property Developers, Ltd., Gutierrez’s\n\nconstruction company. The alleged assignment is dated July 24, 2001 and was\n\nsigned by Gutierrez in his capacity as president of Calmaquip Engineering\n\nCorporation, but it was never recorded.\n\n The government and Trinidad opposed Maritime’s claim. The parties then\n\nengaged in protracted discovery in which Trinidad played a significant role,\n\nleading 14 depositions on behalf of the government. Maritime objected to\n\nTrinidad’s participation in the litigation, but the district court denied its motion.\n\nThe district court acknowledged that Trinidad “does not have a direct claim under\n\n\n\n 4\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 5 of 16\n\n\n[section] 853 or under the forfeiture claim” but permitted Trinidad to proceed, “not\n\nin [its] own rights, but . . . to do the work on behalf of the government.”\n\n After discovery, Trinidad and the government jointly moved for summary\n\njudgment, but the district court denied that motion. Instead, it sua sponte decided\n\nto hold a bifurcated trial with an initial phase focused solely on the question\n\nwhether “to admit the collateral assignment as being genuine and authentic” under\n\nFederal Rule of Evidence 901. The second phase was to address the merits of\n\nMaritime’s interest in the Red Road property. The district court explained that the\n\nquestion of authenticity was “a nice clean issue” that, if resolved against Maritime,\n\nwould obviate the need to resolve the complicated dispute about the legal effect of\n\nan unrecorded assignment of a security interest in real property for which\n\nGutierrez, the party who allegedly conveyed the assignment, did not hold title.\n\nMaritime objected on the ground that the authenticity issue should be consolidated\n\nwith the merits issues, but it later conceded that an adverse ruling on authenticity\n\nwould make the “other issues . . . go away.”\n\n At the hearing for the first phase of trial, Maritime presented three witnesses:\n\nLesley Alfonso, the Maritime director who allegedly discovered the collateral\n\nassignment; Frank Norwitch, a certified document examiner who reviewed the\n\ncollateral assignment; and Raul Gutierrez, who allegedly signed the assignment.\n\nThe government presented no live witnesses. Alfonso testified that in early 2010,\n\n\n\n 5\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 6 of 16\n\n\nAndrew Ferguson, Maritime’s chief executive officer and the son of Steve\n\nFerguson, asked her to search for any documents related to the Red Road property.\n\nShe asserted that she discovered the assignment in the files of a deceased Maritime\n\nexecutive who had managed the loan transaction with Gutierrez. Alfonso also\n\ntestified that she returned to the storage room to ensure that there were no other\n\ndocuments responsive to the description she was given. Cross-examination by the\n\ngovernment and questioning by the district court made clear that this testimony\n\nconflicted with Alfonso’s earlier deposition testimony, in which she agreed that\n\nshe did not have “occasion to go back into the storage room and look at the folder\n\nor anything else that was around that document.”\n\n Norwitch testified as an expert after the government stipulated to his\n\nqualifications. He testified that he examined the watermark and the ink used in\n\nboth the typed and handwritten portions of the collateral assignment and concluded\n\nthat there was “no evidence that this document was anything other than what it is\n\npurported to be.” But Norwitch explained that the ink used in the document has\n\nbeen in commercial use for decades and that he could not determine “when [the]\n\ndocument was signed.” And Gutierrez testified that he executed the collateral\n\nassignment on July 24, 2001, after Maritime requested additional collateral. He\n\nadmitted that he failed to list the assignment in his presentence investigation report\n\nand testified that he never thought to record the multi-million-dollar transaction.\n\n\n\n 6\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 7 of 16\n\n\nGutierrez also acknowledged that he had been convicted of crimes of fraud and\n\nthat he had falsified his community-service hours after being released from prison.\n\n After the hearing for the first phase of trial, the district court ruled that\n\nMaritime had failed to carry its burden of proving the authenticity of the collateral\n\nassignment “by the greater weight of the evidence.” The court determined that\n\ncircumstantial evidence and unexplained defects present on the face of the\n\ndocument undermined the inference that the assignment was authentic. It also\n\ndetermined that the expert testimony was inconclusive, that Alfonso and Gutierrez\n\nwere not credible, and that virtually no evidence corroborated the authenticity of\n\nthe assignment. Having ruled that the collateral assignment was inauthentic, the\n\ndistrict court concluded that it was unnecessary to proceed to the second phase of\n\ntrial and denied Maritime’s claim.\n\n II. STANDARD OF REVIEW\n\n “We review a district court’s legal conclusions regarding third-party claims\n\nto criminally forfeited property de novo and its factual findings for clear error.”\n\nUnited States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009).\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that although the\n\ndistrict court applied the wrong standard when it assessed the authenticity of the\n\nalleged collateral assignment, the error was harmless. Second, we explain that the\n\n\n\n 7\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 8 of 16\n\n\ndistrict court erred by permitting Trinidad to intervene, but this error too does not\n\nwarrant reversal.\n\n A. The District Court Committed Harmless Error in Ruling that the\n Collateral Assignment Was Inauthentic.\n\n The district court ruled that the “burden of proof” was “on Maritime to prove\n\nby the greater weight of the evidence that the collateral assignment” is “an\n\nauthentic document,” but this ruling was in error. Even so, Maritime has suffered\n\nno prejudice.\n\n A two-step process governs the determination of whether a document is\n\nauthentic. The district court must first make a preliminary assessment of\n\nauthenticity under Rule 901, which “requires a proponent to present ‘sufficient\n\nevidence to make out a prima facie case that the proffered evidence is what it\n\npurports to be.’” United States v. Lebowitz, 676 F.3d 1000, 1009 (11th Cir. 2012)\n\n(quoting United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010)). If the\n\nproponent satisfies this “prima facie burden,” the inquiry proceeds to a second\n\nstep, in which “the evidence may be admitted, and the ultimate question of\n\nauthenticity is then decided by the [factfinder].” Id.; see also In re Int’l Mgmt.\n\nAssocs., LLC, 781 F.3d 1262, 1267 (11th Cir. 2015) (“Once [a] prima facie\n\nshowing of authenticity [is] made, the ultimate question of the authenticity of the\n\ndocuments [is] left to the factfinder.”).\n\n\n\n\n 8\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 9 of 16\n\n\n The first phase of the bifurcated trial framework adopted by the district court\n\nwas intended to address only the preliminary question of authenticity. Under the\n\ntwo-step process contemplated by Rule 901, Maritime bore the burden of\n\nestablishing a prima facie case of authenticity at the first stage. Only at the second\n\nstep would “the trier of fact . . . appraise whether the proffered evidence is in fact\n\nwhat it purports to be.” United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir.\n\n1985).\n\n By requiring Maritime to prove authenticity by “the greater weight of the\n\nevidence,” the district court compressed the two steps of the inquiry under Rule\n\n901 into one and conflated the issue of authenticity with the issue of entitlement to\n\nthe proceeds of the sale of the Red Road property, but this technical error need not\n\nwarrant reversal. Federal Rule of Civil Procedure 61 permits reversal based on a\n\ntrial error “only where the error has caused substantial prejudice to the affected\n\nparty (or, stated somewhat differently, affected the party's substantial rights or\n\nresulted in substantial injustice).” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d\n\n1154, 1162 (11th Cir. 2004) (internal quotation marks omitted). The error by the\n\ndistrict court prejudiced Maritime only if there is a “reasonable likelihood that the\n\noutcome would have been different” if the district court had ruled that Maritime\n\nsatisfied its burden to prove a prima facie case of authenticity before proceeding to\n\n\n\n\n 9\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 10 of 16\n\n\ndetermine whether Maritime had an interest in the Red Road property. United\n\nStates v. Jeri, 869 F.3d 1247, 1262 (11th Cir. 2017).\n\n Maritime suffered no prejudice. If the district court had followed the process\n\ncontemplated by Rule 901, it would have answered the ultimate question of\n\nauthenticity in the same way; the outcome of the trial would not have differed.\n\n The first phase of the trial featured all of the evidence relevant to the\n\nquestion of authenticity. Maritime was on notice that the district court would apply\n\na preponderance standard in determining whether the assignment was authentic\n\nand had every incentive to produce all relevant evidence. The second phase would\n\nhave been a bench trial, see 21 U.S.C. § 853(n)(2), so the district court inevitably\n\nwould have reached the same answer to the “ultimate question of authenticity”\n\nwhen it acted as the finder of fact. Lebowitz, 676 F.3d at 1009.\n\n The district court was entitled to find that the assignment was not authentic\n\nunder the preponderance standard applicable at the second step of the inquiry\n\nunder Rule 901, and Maritime’s claim was bound to fail if the assignment was\n\ninauthentic. Maritime never asserted any other potential source of an interest in the\n\nRed Road property, and its trial counsel even conceded that it “only has a claim if\n\nit has an assignment.” In other words, Maritime’s claim stood or fell with the\n\nauthenticity of the collateral assignment.\n\n\n\n\n 10\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 11 of 16\n\n\n The collateral assignment was suspect on its face. It was neither witnessed\n\nnor notarized, even though Raul Gutierrez admitted that his secretary was a notary.\n\nThe document does not so much as mention the legal titleholder of the Red Road\n\nproperty, Inversiones Rapidven, and contains no legal description of the property.\n\nThe document was printed on Calmaquip letterhead, even though Lesley Alfonso,\n\na Maritime director, testified that it was the practice of Maritime to prepare its own\n\nloan documents. The assignment was purportedly created to secure a limited\n\nguarantee agreement in which Maritime lent $2 million to Keystone Construction.\n\nThe assignment states that the limited guaranty agreement was attached to it, but\n\nAlfonso testified that nothing was attached to the assignment when she allegedly\n\nfound it. Maritime’s own expert concluded that there was no evidence suggesting\n\nthat anything had ever been attached to the assignment. And the assignment was\n\nnever recorded—an astonishing oversight in a multi-million-dollar transaction.\n\n Circumstantial evidence also supported the finding that the assignment was\n\ninauthentic. The limited guaranty agreement makes no mention of the collateral\n\nassignment. And as the district court explained, there was “not a single document”\n\nthat “referenced the collateral assignment . . . before or after” the assignment was\n\nallegedly executed, other than a letter that Gutierrez purportedly sent to Richard\n\nLacle, his associate at Inversiones Rapidven. This letter lacked any indicia of\n\nauthenticity, such as a letterhead, physical or email address, or method of\n\n\n\n 11\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 12 of 16\n\n\ntransmission. And Lacle denied ever receiving the letter and suggested that it was\n\nfabricated. And finally, Gutierrez listed the Red Road property as an\n\nunencumbered asset in his presentence investigation report and failed to list the\n\ncollateral assignment as a debt.\n\n Based on this evidence, the district court was entitled to infer that there was\n\na post hoc plot between Gutierrez and Maritime to spare the Red Road property\n\nfrom forfeiture through a fabricated assignment of an interest to Maritime. As we\n\nhave explained, “[a] district court has discretion to determine authenticity, and that\n\ndetermination should not be disturbed on appeal absent a showing that there is no\n\ncompetent evidence in the record to support it.” United States v. Siddiqui, 235 F.3d\n\n1318, 1322 (11th Cir. 2000). Even if we were to assume that Gutierrez’s signature\n\non the assignment is genuine, it is entirely possible that he signed shortly before he\n\nwent to prison in an effort to shield his property from forfeiture. Ample evidence\n\nestablished the existence of a close relationship between Gutierrez and the officers\n\nof Maritime. We reject Maritime’s assertion that Gutierrez could not possibly have\n\nanticipated that the government would seek forfeiture of his property. We expect\n\nthat a person who knows he is under investigation in a case of complex financial\n\nfraud could have foreseen the impending forfeiture.\n\n\n\n\n 12\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 13 of 16\n\n\n Ample evidence supports the finding by the district court on the ultimate\n\nquestion of authenticity. And that finding controlled whether Maritime had an\n\ninterest in the Red Road property. So no prejudicial error occurred.\n\n B. Trinidad’s Intervention Does Not Merit Reversal.\n\n Maritime also argues, and we agree, that the district court erred in\n\npermitting Trinidad, a foreign sovereign, to intervene in the ancillary\n\nproceeding to litigate on behalf of the United States. To represent the United\n\nStates, an attorney must be either a United States Attorney, an assistant United\n\nStates Attorney, or a special attorney. See 28 U.S.C. § 541(a) (creating\n\nprocedures for appointing a United States Attorney for each judicial district); id.\n\n§ 542(a) (creating procedures for appointing assistant United States Attorneys);\n\nid. § 543(a) (creating procedures for appointing special attorneys to assist\n\nUnited States Attorneys). And every attorney representing the United States\n\nmust take an oath of office. See id. § 544 (requiring United States Attorneys,\n\nassistant United States Attorneys, and specially appointed attorneys to take an\n\noath to faithfully execute their duties). Trinidad was not specially appointed to\n\nlitigate on behalf of the United States and took no oath of office.\n\n Nor did Trinidad have standing to intervene to defend its own interests.\n\nCongress has created one—and only one—means for interested third-parties to\n\nparticipate in a criminal-forfeiture proceeding: asserting a “legal right, title, or\n\n\n\n 13\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 14 of 16\n\n\ninterest” sufficient for standing in an ancillary proceeding, 21 U.S.C. § 853(n).\n\nSection 853(k) of the statute governing criminal forfeitures provides that\n\n“[e]xcept as provided in subsection (n), no party claiming an interest in property\n\nsubject to forfeiture under this section” may “intervene in a trial or appeal of a\n\ncriminal case involving the forfeiture of such property under this section.” Id.\n\n§ 853(k). As we have explained, “[a]n ancillary proceeding constitutes the sole\n\nmeans by which a third-party claimant can establish entitlement to return of\n\nforfeited property.” United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir.\n\n2012). Trinidad made no attempt to intervene under section 853(n) and did not\n\nassert any “legal right, title, or interest” in the Red Road property, 21 U.S.C.\n\n§ 853(n).\n\n Although there was no legal basis for Trinidad’s intervention, this error\n\ntoo does not warrant reversal. Maritime makes two arguments about prejudice,\n\nbut neither is persuasive.\n\n First, Maritime argues that Trinidad’s participation was prejudicial\n\nbecause the district court relied on deposition testimony elicited by Trinidad in\n\nfinding a material inconsistency in the testimony of Alfonso. But the bare fact\n\nthat the district court relied in part on evidence generated by Trinidad to\n\ndiscredit Alfonso’s testimony does not prove prejudicial error. As the district\n\ncourt stated, its ruling against Maritime did not depend on its rejection of\n\n\n\n 14\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 15 of 16\n\n\nAlfonso’s testimony. The district court concluded that “even if” Alfonso “were\n\ncredible,” it was “just as likely” that the collateral assignment “could have been\n\nplaced there by anybody, and then she was sent . . . on her merry way to find\n\nthat document.” The district court was entitled to credit this alternative\n\nexplanation of the discovery of the collateral assignment in the light of the\n\nnumerous deficiencies in the document itself and the surrounding circumstantial\n\nevidence that it was not genuine.\n\n The district court also had another, independent ground for discounting\n\nAlfonso’s testimony: that she was not “an unbiased witness.” Alfonso is a\n\nformer employee and current director of Maritime. She had an obvious\n\nincentive to tailor her testimony to support Maritime’s interests. And regardless\n\nof whether we would have regarded this incentive as sufficient to discredit\n\nAlfonso’s testimony in the exercise of our independent judgment, the credibility\n\ndetermination by the district court is binding on us. As we have explained,\n\n“[t]he credibility of a witness is in the province of the factfinder,” and we “will\n\nnot ordinarily review the factfinder’s determination of credibility.” United\n\nStates v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).\n\n Second, Maritime argues, based on Young v. United States ex rel. Vuitton\n\net Fils S.A., 481 U.S. 787 (1987), that permitting a third party to litigate on\n\nbehalf of the United States in an ancillary forfeiture proceeding is structural\n\n\n\n 15\n\f Case: 17-10889 Date Filed: 01/16/2019 Page: 16 of 16\n\n\nerror, but this argument is a nonstarter. In Young, a plurality of the Supreme\n\nCourt concluded that the “appointment of an interested prosecutor” in a\n\ncriminal contempt proceeding is a structural error. Id. at 810. This rule does not\n\napply to an ancillary proceeding conducted under section 853(n) because such a\n\nproceeding is civil in nature. See, e.g., United States v. Douglas, 55 F.3d 584,\n\n586 (11th Cir. 1995) (“Congress therefore viewed a [section] 853(n) hearing as\n\na species of an ‘action at law or equity’—a substitute for separate civil litigation\n\nagainst the government.”); United States v. Gilbert, 244 F.3d 888, 907 (11th\n\nCir. 2001), superseded by rule on other grounds as recognized in United States\n\nv. Marion, 562 F.3d 1330 (11th Cir. 2009) (expanding Douglas to other kinds\n\nof forfeitures). Indeed, if there were a constitutional prohibition on interested\n\nprivate parties representing the United States in civil actions, the validity of\n\nstatutes such as the False Claims Act, 31 U.S.C. § 3730, would be doubtful.\n\n Trinidad’s intervention did not affect Maritime’s “substantial rights.”\n\nFed. R. Civ. P. 61. Although the district court erred in permitting a foreign\n\nsovereign with no interest of its own to litigate on behalf of the United States,\n\nthis error does not require reversal of the dismissal of Maritime’s claim.\n\n IV. CONCLUSION\n\n We AFFIRM the judgment in favor of the United States.\n\n\n\n\n 16\n[END_CASE]",
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4,583,316 | Elida A. FLORES-PANAMENO, Christian Alexander Panameno-Flores, Madeline Batsave Panameno-Flores, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent. | Elida A. Flores-Panameno v. U.S. Attorney General | 2019-01-22 | 17-14749 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Rosenbaum, Branch", "parties": "", "opinions": [{"author": "BRANCH, Circuit Judge:", "type": "010combined", "text": "Case: 17-14749 Date Filed: 01/22/2019 Page: 1 of 12\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14749\n Non-Argument Calendar\n ________________________\n\n Agency No. A206-882-182\n\n\n\nELIDA A. FLORES-PANAMENO,\nCHRISTIAN ALEXANDER PANAMENO-FLORES,\nMADELINE BATSAVE PANAMENO-FLORES,\n\n Petitioners,\n\n versus\n\nU.S. ATTORNEY GENERAL,\n\n Respondent.\n\n ________________________\n\n Petition for Review of a Decision of the\n Board of Immigration Appeals\n ________________________\n\n (January 22, 2019)\n\nBefore MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.\n\nBRANCH, Circuit Judge:\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 2 of 12\n\n\n Elida Antonia Flores-Panameno petitions for review1 of the Board of\n\nImmigration Appeals’s (“BIA”) dismissal of her appeal. In short, Flores-\n\nPanameno asserts she received ineffective assistance of counsel because her former\n\nattorney misled her into accepting voluntary departure by telling her she would\n\nimmediately be deported if she did not accept it. She filed a motion to reopen on\n\nthat basis. The immigration judge (“IJ”) denied that motion. He found her\n\nacceptance of voluntary departure was truly voluntary, despite the ineffective\n\nassistance of counsel, because he had himself gone through what he deemed to be\n\nappropriate procedures at the departure hearing to ensure that was so.\n\n We lack a transcript of the hearing in question, hampering our ability to\n\ndecide this petition. We conclude Flores-Panameno bore the burden of producing\n\nany such transcript. Because she did not produce a transcript, we find that we may\n\nrely on the IJ’s reconstruction of the record. In this case, however, the IJ’s\n\nreconstruction may be incomplete. Accordingly, we are unable to assess fully\n\nFlores-Panameno’s voluntariness. We therefore grant the petition and remand to\n\nthe BIA to determine the full scope of the IJ’s inquiry into voluntariness, as set\n\nforth in more detail below.\n\n I.\n\n\n\n 1\n Flores-Panameno is the lead petitioner. Her two minor children are derivative\nbeneficiaries in these proceedings. For ease, we refer to her as the sole petitioner.\n 2\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 3 of 12\n\n\n A.\n\n On or about December 5, 2014, Flores-Panameno and her two minor\n\nchildren, natives of El Salvador, entered the United States. Two days later, Flores-\n\nPanameno was issued a Notice to Appear for being an alien in the United States\n\nwithout being admitted or paroled. After she retained counsel, who secured a\n\ntransfer of venue to Atlanta and a continuance, a master calendar hearing was\n\nscheduled for February 11, 2016.\n\n The record does not expressly reveal what happened at the February hearing,\n\nalthough the events of that hearing remain relevant. The next thing we know is\n\nthat, at the March 15, 2016, hearing, Flores-Panameno requested pre-conclusion\n\nvoluntary departure and signed a declaration regarding non-coercion. The\n\ndeclaration required her to acknowledge (among other things) that she admitted to\n\nall charges/conceded to removability, that the only relief she sought was voluntary\n\ndeparture, that she was not coerced, and that she waived all rights to appeal. If\n\nFlores-Panameno filed a motion to reconsider, she acknowledged, the grant of\n\nvoluntary departure would be terminated automatically and “the alternative order\n\nof removal [would] take effect immediately.” The IJ granted her request and gave\n\nher until July 13, 2016, to depart. There is no transcript in the record of the March\n\n15, 2016, hearing, but there are handwritten notes on the IJ’s order that read,\n\n“Advised orally” and “Knowing and voluntary request for VD.”\n\n 3\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 4 of 12\n\n\n B.\n\n On July 12, 2016, Flores-Panameno, through new counsel, moved to reopen\n\nthe proceedings. She alleged ineffective assistance of her former counsel for\n\nfailure to apply for asylum, withholding of removal, and protection under the\n\nConvention Against Torture (“CAT”).\n\n Flores-Panameno explained that she had retained her former counsel to\n\nassist her in applying for asylum. Her former counsel told her he would prepare\n\nthe application. But on the day of the February 11, 2016, hearing, he told her it\n\nwas too late to apply. He stated the IJ would let them know at the following\n\nhearing whether the IJ would accept the late asylum application. Yet at the March\n\n15, 2016, hearing, the attorney asked Flores-Panameno to sign a document but did\n\nnot explain what the document was. The document was a Request for Pre-\n\nConclusion Voluntary Departure and Declaration Regarding Non-Coercion.\n\nFlores-Panameno “thought [the document] was some sort of certification” and did\n\nnot find out what she had signed until the IJ called the case. When she expressed\n\nher confusion to the IJ, he ordered a recess to give her time to speak with her\n\nattorney. Her attorney did not speak Spanish, and she did not speak English, so\n\nconversing was difficult. The attorney told her the IJ would not accept her asylum\n\napplication, so voluntary departure was her only option to avoid immediate\n\nremoval. She asserts she accepted voluntary departure thinking it was her only\n\n 4\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 5 of 12\n\n\nchoice; had the options been explained to her before the hearing, she says, she\n\nwould not have acquiesced.\n\n Indeed, she argues, she is “unable to return” to El Salvador. In her affidavit\n\nattached to the motion to reopen, she stated she left because she and her children\n\nwere being threatened by two rival gangs, MS-13 and the 18th Gang. Her children\n\nrefused to join the gangs, and the gang members threatened to kill them. Gang\n\nmembers also showed up at Flores-Panameno’s home and demanded money; when\n\nshe said she could not pay, they threatened to kill her children. She filed a police\n\nreport, and gang members called her to inform her that the police were working\n\nwith them and had told them about the report. That incident pushed her to leave El\n\nSalvador for the United States, where she says she always intended to apply for\n\nasylum.\n\n On April 11, 2017, the IJ denied Flores-Panameno’s motion to reopen. He\n\nexplained that at the March 15, 2016, hearing, he had given Flores-Panameno’s\n\nformer counsel two opportunities to explain to Flores-Panameno what she was\n\nsigning. The IJ also stated that he explained to her “on the record the\n\nconsequences of accepting voluntary departure through [a] Spanish translator” and\n\nwas satisfied that she understood.\n\n Thus, even though the IJ concluded Flores-Panameno had demonstrated\n\nineffective assistance of counsel, he found her contention that she was misled to be\n\n 5\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 6 of 12\n\n\n“wholly without merit.” He found that she “did not accept voluntary departure\n\nbased on [her] former counsel’s advice, but based on the procedure that the [IJ]\n\nfollowed to ensure that [she] knowingly and voluntarily accept voluntary\n\ndeparture.” Citing to a record not before us, the IJ said he explained several times\n\nthat voluntary departure was truly voluntary and that Flores-Panameno did not\n\nhave to accept it; that he asked twice if the contents of the document she signed\n\nwere explained in a language she understood; and that he asked if she was forced\n\nor coerced into accepting voluntary departure. The IJ also insisted that he\n\nexplained, through a translator, the consequences of accepting voluntary\n\ndeparture—including the finality and non-appealability of the decision. Thus, the\n\nIJ concluded that, because Flores-Panameno knowingly and voluntarily requested\n\nvoluntary departure, her former counsel’s conduct “was not so prejudicial that\n\nthere is a reasonable probability that, but for his conduct, the outcome of [her]\n\nproceedings would have been different.”\n\n Flores-Panameno appealed to the BIA. She acknowledged that the IJ\n\nfollowed proper procedure to grant voluntary departure. Nevertheless, she\n\ncontended that she agreed to voluntary departure not because of what the IJ said\n\nbut because she thought she had to do what her attorney told her to do and because\n\nshe was not prepared to make a decision at the hearing.\n\n\n\n\n 6\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 7 of 12\n\n\n The BIA dismissed the appeal. It agreed with the IJ that Flores-Panameno\n\nfailed to establish actual prejudice. It found the IJ took “substantial steps to\n\nensure” her acceptance was knowing and voluntary and that she had not been\n\nmisled by counsel. Flores-Panameno “concede[d] . . . that these advisals were\n\ngiven and the [IJ] used the proper procedure for granting pre-conclusion voluntary\n\ndeparture.” 2\n\n This timely petition for review followed.\n\n II.\n\n A.\n\n “We review the BIA’s denial of a motion to reopen for abuse of discretion.\n\nOur review is limited to determining whether there has been an exercise of\n\nadministrative discretion and whether the matter of exercise has been arbitrary or\n\ncapricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (citation\n\nand quotation marks omitted). The BIA may deny a motion to reopen based on one\n\nof at least three independent grounds: “1) failure to establish a prima facie case;\n\n\n\n 2\n The BIA also stated that Flores-Panameno’s “assertion that her intent was always to\napply for asylum is contradicted by the fact that her written pleading states that the relief to be\nsought is Temporary Protected Status and prosecutorial discretion. The box for asylum and\nrelated relief is not checked.” The BIA should not have placed weight on Flores-Panameno’s\nJanuary 16, 2016, written pleading, in which she sought relief in the form of Temporary\nProtected Status and prosecutorial discretion. That pleading was prepared by the attorney she\nalleges was acting against her stated wish to apply for asylum and whose assistance the IJ found\nto be ineffective. But that portion of the BIA’s analysis was nonessential to the rest of its\nholding, which relied primarily on the “substantial steps” taken by the IJ to ensure voluntariness.\n 7\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 8 of 12\n\n\n2) failure to introduce evidence that was material and previously unavailable; and\n\n3) a determination that despite the alien’s statutory eligibility for relief, he or she is\n\nnot entitled to a favorable exercise of discretion.” Al Najjar v. Ashcroft, 257 F.3d\n\n1262, 1302 (11th Cir. 2001).\n\n We review only the BIA’s decision, “except to the extent that it expressly\n\nadopts the IJ’s opinion.” Id. at 1284. “Insofar as the Board adopts the IJ’s\n\nreasoning, we will review the IJ’s decision as well.” Id.\n\n B.\n\n 8 U.S.C. § 1362 provides that aliens have the right to retain private counsel\n\nin their removal proceedings. Aliens who are represented in civil removal\n\nproceedings have the right to effective assistance of counsel. Gbaya v. U.S. Att’y\n\nGen., 342 F.3d 1219, 1222 (11th Cir. 2003) (quoting Mejia Rodriguez v. Reno, 178\n\nF.3d 1139, 1146 (11th Cir. 1999)).\n\n We have held “that, in addition to substantial, if not exact, compliance with”\n\ncertain procedural requirements set forth by the BIA,3 “a petitioner claiming\n\nineffective assistance of counsel in a motion for reconsideration must also show\n\nprejudice” as well as counsel’s deficient performance. Dakane v. U.S. Att’y Gen.,\n\n399 F.3d 1269, 1274 (11th Cir. 2005). “Prejudice exists when the performance of\n\n\n\n 3\n The parties do not dispute that Flores-Panameno complied with the BIA’s procedural\nrequirements.\n 8\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 9 of 12\n\n\ncounsel is so inadequate that there is a reasonable probability that but for the\n\nattorney’s error, the outcome of the proceedings would have been different.” Id.\n\n Flores-Panameno contends the BIA abused its discretion in not recognizing\n\nthat she was prejudiced by being blindsided by the threat of immediate deportation\n\nat the March 15, 2016, hearing. That blindsiding, she argues, misled her into\n\naccepting voluntary departure. Dakane instructs that Flores-Panameno must\n\ndemonstrate that there is a reasonable probability that, but for her former counsel’s\n\nconduct, she would not have accepted voluntary departure.\n\n 1.\n\n We first address the inadequate record. We have no transcript of the March\n\n15, 2016, hearing.\n\n In a removal proceeding, the Attorney General has a statutory obligation to\n\nensure there is “a complete record . . . of all testimony and evidence produced at\n\nthe proceeding.”4 8 U.S.C. § 1229a(b)(4)(C). “If an appeal is taken from a\n\ndecision of an immigration judge, the record of proceeding shall be forwarded to\n\nthe [BIA] upon the request or the order of the [BIA].” 8 C.F.R. § 1003.5. The\n\nBIA “transcribes proceedings, after receiving a properly filed appeal from the\n\ndecision of an [IJ].” Executive Office for Immigration Review, Board of\n\nImmigration Appeals Practice Manual at 51 (July 11, 2018),\n\n\n 4\n There is, in fact, an audio recording, but it is not part of the record.\n 9\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 10 of 12\n\n\nhttps://www.justice.gov/eoir/page/file/1079696/download. Although the BIA does\n\nnot normally prepare transcripts in cases involving motions to reopen, it may do so\n\nat its discretion or upon a party’s request with stated rationale. Id. If a transcript is\n\nnot prepared, a party may cite to the BIA the audio recording of the IJ proceedings,\n\nwhich may be listened to by making arrangements through immigration court staff.\n\nId. at 62; Executive Office for Immigration Review, Immigration Court Practice\n\nManual at 69 (Aug. 2, 2018),\n\nhttps://www.justice.gov/eoir/page/file/1084851/download.\n\n Here, the BIA reviewed the IJ’s voluntariness determination without\n\nrequesting the transcript or referring to the audio recording of the March 15, 2016,\n\nhearing, even if merely to confirm the IJ’s determination was not clearly\n\nerroneous. But Flores-Panameno could have contested the IJ’s determination by\n\nrequesting a transcript or by citing to portions of the audio recording. She did not\n\ndo either. 5\n\n We see Flores-Panameno’s failure to provide a transcript or citations to the\n\nrecording as similar to an appellant’s failure to comply with Rule 10(b) of the\n\nFederal Rules of Appellate Procedure, which provides that it is the appellant’s duty\n\nto provide us with any necessary transcript. We have previously found that,\n\n\n\n 5\n In fact, she conceded that the IJ “followed proper procedure to grant voluntary\ndeparture.”\n 10\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 11 of 12\n\n\nalthough the appellant’s failure to order a transcript of a hearing “greatly\n\nhamper[ed] our review,” we could still review an appeal where the district court\n\nmemorialized its findings in a written order. See United States v. Milam, 855 F.2d\n\n739, 741 n.3 (11th Cir. 1988). We noted, however, that we were “not inclined to\n\ngive appellants the benefit of any doubt in the absence of a transcript which they\n\nshould have ordered.” Id. And in United States v. LeSpesa, 956 F.2d 1027 (11th\n\nCir. 1992), we held omissions from the record do not require reversal when the\n\ndistrict court is able to reconstruct the record adequately. Id. at 1034–35. In line\n\nwith these cases, we hold that we can review an alien’s petition for review\n\nasserting lack of voluntariness without a transcript where the IJ has adequately\n\nreconstructed the record. When an alien has not exercised her right before the BIA\n\nto request a hearing transcript or to cite to portions of the audio record, we will\n\naccept any uncontested factual findings adequately memorialized by the IJ.\n\n 2.\n\n Because Flores-Panameno had the burden of establishing ineffective\n\nassistance of counsel, if she believed the record of the March 15, 2016, hearing\n\nwas helpful to her voluntariness argument, she was obligated to request the\n\ntranscript or cite to the audio recording. Because she did neither, we turn to the\n\nrecord the IJ recreated in his order.\n\n\n\n\n 11\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 12 of 12\n\n\n The IJ ably recreated in his order the record of the March 15, 2016, hearing.\n\nNevertheless, we are unclear whether the recreation reflects the entirety of the\n\nhearing. Without the IJ expressly stating the scope of his recreation, we are\n\nuncertain whether the record has been adequately reconstructed. Cf. LeSpesa, 956\n\nF.2d at 1034–35. For example, the IJ describes the various steps he undertook to\n\nensure voluntariness. But given Flores-Panameno’s argument—that she was\n\ncoerced by her attorney’s threat of immediate deportation—it would be helpful to\n\nknow if the IJ asked any questions other than the ones he noted. For example, did\n\nthe IJ ask if Flores-Panameno had any questions or concerns? An open-ended\n\nquestion such as that one could have prompted her to inquire about the veracity of\n\nher attorney’s advice.\n\n Perhaps the IJ did ask other questions. But again, we do not know. We\n\ntherefore grant Flores-Panameno’s petition for review and remand for the BIA to\n\ndetermine the scope of the IJ’s recreation of the record.\n\n PETITION GRANTED; REMANDED.\n\n\n\n\n 12", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360569/", "author_raw": "BRANCH, Circuit Judge:"}]} | MARCUS | ROSENBAUM | BRANCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583316/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Elida A. FLORES-PANAMENO, Christian Alexander Panameno-Flores, Madeline Batsave Panameno-Flores, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14749 Date Filed: 01/22/2019 Page: 1 of 12\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14749\n Non-Argument Calendar\n ________________________\n\n Agency No. A206-882-182\n\n\n\nELIDA A. FLORES-PANAMENO,\nCHRISTIAN ALEXANDER PANAMENO-FLORES,\nMADELINE BATSAVE PANAMENO-FLORES,\n\n Petitioners,\n\n versus\n\nU.S. ATTORNEY GENERAL,\n\n Respondent.\n\n ________________________\n\n Petition for Review of a Decision of the\n Board of Immigration Appeals\n ________________________\n\n (January 22, 2019)\n\nBefore MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.\n\nBRANCH, Circuit Judge:\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 2 of 12\n\n\n Elida Antonia Flores-Panameno petitions for review1 of the Board of\n\nImmigration Appeals’s (“BIA”) dismissal of her appeal. In short, Flores-\n\nPanameno asserts she received ineffective assistance of counsel because her former\n\nattorney misled her into accepting voluntary departure by telling her she would\n\nimmediately be deported if she did not accept it. She filed a motion to reopen on\n\nthat basis. The immigration judge (“IJ”) denied that motion. He found her\n\nacceptance of voluntary departure was truly voluntary, despite the ineffective\n\nassistance of counsel, because he had himself gone through what he deemed to be\n\nappropriate procedures at the departure hearing to ensure that was so.\n\n We lack a transcript of the hearing in question, hampering our ability to\n\ndecide this petition. We conclude Flores-Panameno bore the burden of producing\n\nany such transcript. Because she did not produce a transcript, we find that we may\n\nrely on the IJ’s reconstruction of the record. In this case, however, the IJ’s\n\nreconstruction may be incomplete. Accordingly, we are unable to assess fully\n\nFlores-Panameno’s voluntariness. We therefore grant the petition and remand to\n\nthe BIA to determine the full scope of the IJ’s inquiry into voluntariness, as set\n\nforth in more detail below.\n\n I.\n\n\n\n 1\n Flores-Panameno is the lead petitioner. Her two minor children are derivative\nbeneficiaries in these proceedings. For ease, we refer to her as the sole petitioner.\n 2\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 3 of 12\n\n\n A.\n\n On or about December 5, 2014, Flores-Panameno and her two minor\n\nchildren, natives of El Salvador, entered the United States. Two days later, Flores-\n\nPanameno was issued a Notice to Appear for being an alien in the United States\n\nwithout being admitted or paroled. After she retained counsel, who secured a\n\ntransfer of venue to Atlanta and a continuance, a master calendar hearing was\n\nscheduled for February 11, 2016.\n\n The record does not expressly reveal what happened at the February hearing,\n\nalthough the events of that hearing remain relevant. The next thing we know is\n\nthat, at the March 15, 2016, hearing, Flores-Panameno requested pre-conclusion\n\nvoluntary departure and signed a declaration regarding non-coercion. The\n\ndeclaration required her to acknowledge (among other things) that she admitted to\n\nall charges/conceded to removability, that the only relief she sought was voluntary\n\ndeparture, that she was not coerced, and that she waived all rights to appeal. If\n\nFlores-Panameno filed a motion to reconsider, she acknowledged, the grant of\n\nvoluntary departure would be terminated automatically and “the alternative order\n\nof removal [would] take effect immediately.” The IJ granted her request and gave\n\nher until July 13, 2016, to depart. There is no transcript in the record of the March\n\n15, 2016, hearing, but there are handwritten notes on the IJ’s order that read,\n\n“Advised orally” and “Knowing and voluntary request for VD.”\n\n 3\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 4 of 12\n\n\n B.\n\n On July 12, 2016, Flores-Panameno, through new counsel, moved to reopen\n\nthe proceedings. She alleged ineffective assistance of her former counsel for\n\nfailure to apply for asylum, withholding of removal, and protection under the\n\nConvention Against Torture (“CAT”).\n\n Flores-Panameno explained that she had retained her former counsel to\n\nassist her in applying for asylum. Her former counsel told her he would prepare\n\nthe application. But on the day of the February 11, 2016, hearing, he told her it\n\nwas too late to apply. He stated the IJ would let them know at the following\n\nhearing whether the IJ would accept the late asylum application. Yet at the March\n\n15, 2016, hearing, the attorney asked Flores-Panameno to sign a document but did\n\nnot explain what the document was. The document was a Request for Pre-\n\nConclusion Voluntary Departure and Declaration Regarding Non-Coercion.\n\nFlores-Panameno “thought [the document] was some sort of certification” and did\n\nnot find out what she had signed until the IJ called the case. When she expressed\n\nher confusion to the IJ, he ordered a recess to give her time to speak with her\n\nattorney. Her attorney did not speak Spanish, and she did not speak English, so\n\nconversing was difficult. The attorney told her the IJ would not accept her asylum\n\napplication, so voluntary departure was her only option to avoid immediate\n\nremoval. She asserts she accepted voluntary departure thinking it was her only\n\n 4\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 5 of 12\n\n\nchoice; had the options been explained to her before the hearing, she says, she\n\nwould not have acquiesced.\n\n Indeed, she argues, she is “unable to return” to El Salvador. In her affidavit\n\nattached to the motion to reopen, she stated she left because she and her children\n\nwere being threatened by two rival gangs, MS-13 and the 18th Gang. Her children\n\nrefused to join the gangs, and the gang members threatened to kill them. Gang\n\nmembers also showed up at Flores-Panameno’s home and demanded money; when\n\nshe said she could not pay, they threatened to kill her children. She filed a police\n\nreport, and gang members called her to inform her that the police were working\n\nwith them and had told them about the report. That incident pushed her to leave El\n\nSalvador for the United States, where she says she always intended to apply for\n\nasylum.\n\n On April 11, 2017, the IJ denied Flores-Panameno’s motion to reopen. He\n\nexplained that at the March 15, 2016, hearing, he had given Flores-Panameno’s\n\nformer counsel two opportunities to explain to Flores-Panameno what she was\n\nsigning. The IJ also stated that he explained to her “on the record the\n\nconsequences of accepting voluntary departure through [a] Spanish translator” and\n\nwas satisfied that she understood.\n\n Thus, even though the IJ concluded Flores-Panameno had demonstrated\n\nineffective assistance of counsel, he found her contention that she was misled to be\n\n 5\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 6 of 12\n\n\n“wholly without merit.” He found that she “did not accept voluntary departure\n\nbased on [her] former counsel’s advice, but based on the procedure that the [IJ]\n\nfollowed to ensure that [she] knowingly and voluntarily accept voluntary\n\ndeparture.” Citing to a record not before us, the IJ said he explained several times\n\nthat voluntary departure was truly voluntary and that Flores-Panameno did not\n\nhave to accept it; that he asked twice if the contents of the document she signed\n\nwere explained in a language she understood; and that he asked if she was forced\n\nor coerced into accepting voluntary departure. The IJ also insisted that he\n\nexplained, through a translator, the consequences of accepting voluntary\n\ndeparture—including the finality and non-appealability of the decision. Thus, the\n\nIJ concluded that, because Flores-Panameno knowingly and voluntarily requested\n\nvoluntary departure, her former counsel’s conduct “was not so prejudicial that\n\nthere is a reasonable probability that, but for his conduct, the outcome of [her]\n\nproceedings would have been different.”\n\n Flores-Panameno appealed to the BIA. She acknowledged that the IJ\n\nfollowed proper procedure to grant voluntary departure. Nevertheless, she\n\ncontended that she agreed to voluntary departure not because of what the IJ said\n\nbut because she thought she had to do what her attorney told her to do and because\n\nshe was not prepared to make a decision at the hearing.\n\n\n\n\n 6\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 7 of 12\n\n\n The BIA dismissed the appeal. It agreed with the IJ that Flores-Panameno\n\nfailed to establish actual prejudice. It found the IJ took “substantial steps to\n\nensure” her acceptance was knowing and voluntary and that she had not been\n\nmisled by counsel. Flores-Panameno “concede[d] . . . that these advisals were\n\ngiven and the [IJ] used the proper procedure for granting pre-conclusion voluntary\n\ndeparture.” 2\n\n This timely petition for review followed.\n\n II.\n\n A.\n\n “We review the BIA’s denial of a motion to reopen for abuse of discretion.\n\nOur review is limited to determining whether there has been an exercise of\n\nadministrative discretion and whether the matter of exercise has been arbitrary or\n\ncapricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (citation\n\nand quotation marks omitted). The BIA may deny a motion to reopen based on one\n\nof at least three independent grounds: “1) failure to establish a prima facie case;\n\n\n\n 2\n The BIA also stated that Flores-Panameno’s “assertion that her intent was always to\napply for asylum is contradicted by the fact that her written pleading states that the relief to be\nsought is Temporary Protected Status and prosecutorial discretion. The box for asylum and\nrelated relief is not checked.” The BIA should not have placed weight on Flores-Panameno’s\nJanuary 16, 2016, written pleading, in which she sought relief in the form of Temporary\nProtected Status and prosecutorial discretion. That pleading was prepared by the attorney she\nalleges was acting against her stated wish to apply for asylum and whose assistance the IJ found\nto be ineffective. But that portion of the BIA’s analysis was nonessential to the rest of its\nholding, which relied primarily on the “substantial steps” taken by the IJ to ensure voluntariness.\n 7\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 8 of 12\n\n\n2) failure to introduce evidence that was material and previously unavailable; and\n\n3) a determination that despite the alien’s statutory eligibility for relief, he or she is\n\nnot entitled to a favorable exercise of discretion.” Al Najjar v. Ashcroft, 257 F.3d\n\n1262, 1302 (11th Cir. 2001).\n\n We review only the BIA’s decision, “except to the extent that it expressly\n\nadopts the IJ’s opinion.” Id. at 1284. “Insofar as the Board adopts the IJ’s\n\nreasoning, we will review the IJ’s decision as well.” Id.\n\n B.\n\n 8 U.S.C. § 1362 provides that aliens have the right to retain private counsel\n\nin their removal proceedings. Aliens who are represented in civil removal\n\nproceedings have the right to effective assistance of counsel. Gbaya v. U.S. Att’y\n\nGen., 342 F.3d 1219, 1222 (11th Cir. 2003) (quoting Mejia Rodriguez v. Reno, 178\n\nF.3d 1139, 1146 (11th Cir. 1999)).\n\n We have held “that, in addition to substantial, if not exact, compliance with”\n\ncertain procedural requirements set forth by the BIA,3 “a petitioner claiming\n\nineffective assistance of counsel in a motion for reconsideration must also show\n\nprejudice” as well as counsel’s deficient performance. Dakane v. U.S. Att’y Gen.,\n\n399 F.3d 1269, 1274 (11th Cir. 2005). “Prejudice exists when the performance of\n\n\n\n 3\n The parties do not dispute that Flores-Panameno complied with the BIA’s procedural\nrequirements.\n 8\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 9 of 12\n\n\ncounsel is so inadequate that there is a reasonable probability that but for the\n\nattorney’s error, the outcome of the proceedings would have been different.” Id.\n\n Flores-Panameno contends the BIA abused its discretion in not recognizing\n\nthat she was prejudiced by being blindsided by the threat of immediate deportation\n\nat the March 15, 2016, hearing. That blindsiding, she argues, misled her into\n\naccepting voluntary departure. Dakane instructs that Flores-Panameno must\n\ndemonstrate that there is a reasonable probability that, but for her former counsel’s\n\nconduct, she would not have accepted voluntary departure.\n\n 1.\n\n We first address the inadequate record. We have no transcript of the March\n\n15, 2016, hearing.\n\n In a removal proceeding, the Attorney General has a statutory obligation to\n\nensure there is “a complete record . . . of all testimony and evidence produced at\n\nthe proceeding.”4 8 U.S.C. § 1229a(b)(4)(C). “If an appeal is taken from a\n\ndecision of an immigration judge, the record of proceeding shall be forwarded to\n\nthe [BIA] upon the request or the order of the [BIA].” 8 C.F.R. § 1003.5. The\n\nBIA “transcribes proceedings, after receiving a properly filed appeal from the\n\ndecision of an [IJ].” Executive Office for Immigration Review, Board of\n\nImmigration Appeals Practice Manual at 51 (July 11, 2018),\n\n\n 4\n There is, in fact, an audio recording, but it is not part of the record.\n 9\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 10 of 12\n\n\nhttps://www.justice.gov/eoir/page/file/1079696/download. Although the BIA does\n\nnot normally prepare transcripts in cases involving motions to reopen, it may do so\n\nat its discretion or upon a party’s request with stated rationale. Id. If a transcript is\n\nnot prepared, a party may cite to the BIA the audio recording of the IJ proceedings,\n\nwhich may be listened to by making arrangements through immigration court staff.\n\nId. at 62; Executive Office for Immigration Review, Immigration Court Practice\n\nManual at 69 (Aug. 2, 2018),\n\nhttps://www.justice.gov/eoir/page/file/1084851/download.\n\n Here, the BIA reviewed the IJ’s voluntariness determination without\n\nrequesting the transcript or referring to the audio recording of the March 15, 2016,\n\nhearing, even if merely to confirm the IJ’s determination was not clearly\n\nerroneous. But Flores-Panameno could have contested the IJ’s determination by\n\nrequesting a transcript or by citing to portions of the audio recording. She did not\n\ndo either. 5\n\n We see Flores-Panameno’s failure to provide a transcript or citations to the\n\nrecording as similar to an appellant’s failure to comply with Rule 10(b) of the\n\nFederal Rules of Appellate Procedure, which provides that it is the appellant’s duty\n\nto provide us with any necessary transcript. We have previously found that,\n\n\n\n 5\n In fact, she conceded that the IJ “followed proper procedure to grant voluntary\ndeparture.”\n 10\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 11 of 12\n\n\nalthough the appellant’s failure to order a transcript of a hearing “greatly\n\nhamper[ed] our review,” we could still review an appeal where the district court\n\nmemorialized its findings in a written order. See United States v. Milam, 855 F.2d\n\n739, 741 n.3 (11th Cir. 1988). We noted, however, that we were “not inclined to\n\ngive appellants the benefit of any doubt in the absence of a transcript which they\n\nshould have ordered.” Id. And in United States v. LeSpesa, 956 F.2d 1027 (11th\n\nCir. 1992), we held omissions from the record do not require reversal when the\n\ndistrict court is able to reconstruct the record adequately. Id. at 1034–35. In line\n\nwith these cases, we hold that we can review an alien’s petition for review\n\nasserting lack of voluntariness without a transcript where the IJ has adequately\n\nreconstructed the record. When an alien has not exercised her right before the BIA\n\nto request a hearing transcript or to cite to portions of the audio record, we will\n\naccept any uncontested factual findings adequately memorialized by the IJ.\n\n 2.\n\n Because Flores-Panameno had the burden of establishing ineffective\n\nassistance of counsel, if she believed the record of the March 15, 2016, hearing\n\nwas helpful to her voluntariness argument, she was obligated to request the\n\ntranscript or cite to the audio recording. Because she did neither, we turn to the\n\nrecord the IJ recreated in his order.\n\n\n\n\n 11\n\f Case: 17-14749 Date Filed: 01/22/2019 Page: 12 of 12\n\n\n The IJ ably recreated in his order the record of the March 15, 2016, hearing.\n\nNevertheless, we are unclear whether the recreation reflects the entirety of the\n\nhearing. Without the IJ expressly stating the scope of his recreation, we are\n\nuncertain whether the record has been adequately reconstructed. Cf. LeSpesa, 956\n\nF.2d at 1034–35. For example, the IJ describes the various steps he undertook to\n\nensure voluntariness. But given Flores-Panameno’s argument—that she was\n\ncoerced by her attorney’s threat of immediate deportation—it would be helpful to\n\nknow if the IJ asked any questions other than the ones he noted. For example, did\n\nthe IJ ask if Flores-Panameno had any questions or concerns? An open-ended\n\nquestion such as that one could have prompted her to inquire about the veracity of\n\nher attorney’s advice.\n\n Perhaps the IJ did ask other questions. But again, we do not know. We\n\ntherefore grant Flores-Panameno’s petition for review and remand for the BIA to\n\ndetermine the scope of the IJ’s recreation of the record.\n\n PETITION GRANTED; REMANDED.\n\n\n\n\n 12\n[END_CASE]",
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4,583,376 | Sumnar Robert BREWSTER, Petitioner-Appellant, v. Gary HETZEL, Attorney General, State of Alabama, Respondents-Appellees. | Sumnar Robert Brewster v. Gary Hetzel | 2019-01-22 | 16-16350 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Branch, Fay", "parties": "", "opinions": [{"author": "ED CARNES, Chief Judge", "type": "010combined", "text": "Case: 16-16350 Date Filed: 01/22/2019 Page: 1 of 33\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-16350\n ________________________\n\n D.C. Docket No. 4:13-cv-01279-RDP-JEO\n\n\n\nSUMNAR ROBERT BREWSTER,\n\n Petitioner-Appellant,\n\n versus\n\nGARY HETZEL,\nATTORNEY GENERAL, STATE OF ALABAMA\n Respondents-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Alabama\n ________________________\n\n (January 22, 2019)\n\nBefore ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.\n\nED CARNES, Chief Judge:\n\n In olden days a number of methods were used to ensure that juries reached a\n\nunanimous verdict. From the fourteenth through the eighteenth centuries, one\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 2 of 33\n\n\n“method of accelerating unanimity” was to prohibit jurors from eating or drinking\n\nuntil they all agreed on a verdict. 3 William Blackstone, Commentaries *375.\n\nAnd if jurors did not unanimously agree on one before the judges left town,\n\nBlackstone recounted, “the judges are not bound to wait for them, but may carry\n\nthem round the circuit from town to town in a cart.” Id. at *376. They were\n\nhauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559\n\nU.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to\n\nsay until the resolve bounced out of the holdout jurors.\n\n In one seventeenth-century sedition trial (involving William Penn and a co-\n\ndefendant), the jury deadlocked on the most serious charge. George C. Thomas III\n\n& Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury\n\nInstructions, 15 Wm. & Mary Bill Rights J. 893, 898–99 (2007). The judge\n\nresponded by threatening to have a juror named Bushel branded unless the jury\n\nagreed that the defendants were guilty as charged. Id. at 899. When no verdict\n\nwas forthcoming, the judge did not send for a branding iron, but he did have all the\n\njurors “locked in the jury room without meat, drink, fire, and tobacco” until they\n\ncould agree. Id. (quotation marks omitted). After nicotine withdrawal and the\n\nprospect of starvation failed to work, “the judge threatened to cut Bushel’s throat”\n\nif there were no verdict. Id. (Thus posing the prospect of a dead juror to unlock a\n\ndeadlocked jury.) When even that threat did not bring forth a unanimous verdict,\n\n 2\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 3 of 33\n\n\nthe judge gave up. Id. Bushel escaped the experience unbranded and with his\n\nthroat intact, while the jury as a whole escaped with its disagreement intact. But\n\nthe judge was angry enough at the jurors’ failure to agree that he fined each of\n\nthem forty marks for their intransigence. Id. Fortunately, when the case made it to\n\nthe Court of Common Pleas the fines were set aside. Id. at 899–900. History does\n\nnot record if Bushel or any of the eleven other brave souls ever served on another\n\njury.\n\n Since those days, we have come a long way and now accept that some jury\n\ndeliberations will end in deadlock. United States v. Rey, 811 F.2d 1453, 1460\n\n(11th Cir. 1987) (“The jury trial system has not malfunctioned when the jury\n\ncannot reach a verdict. One of the safeguards against the conviction of innocent\n\npersons built into our criminal justice system is that a jury may not be able to reach\n\na unanimous verdict.”). We no longer try to coerce holdout jurors to reach a\n\nverdict that they cannot abide. Or at least most of the time we don’t.\n\n The jury that convicted our appellant, Sumnar Brewster, might feel some\n\naffinity with juries of yesteryear. Over the period of two days of deliberations the\n\njurors repeatedly told the judges –– there was one judge on the first day of\n\ndeliberations and a different one on the second day –– that they could not reach a\n\nunanimous verdict. And the judges repeatedly ordered them to keep trying. All\n\n\n\n\n 3\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 4 of 33\n\n\ntold, the jurors sent six notes to the two judges stating that they could not reach a\n\nverdict.\n\n Three times the jurors disclosed how they were divided: first reporting that\n\nthey were deadlocked 9 to 3 for conviction, later that they were still deadlocked but\n\nnow 11 to 1 in favor of conviction, and still later that the one holdout juror was\n\ncontinuing to hold out. Throughout the deadlocking, the judges gave a formal\n\nAllen charge, later two additional admonitions that the jurors must continue\n\ndeliberating, and finally, another long charge that included instructions to keep on\n\ndeliberating. That lengthy charge emphasized that the jurors had taken an oath to\n\nfollow the law, which meant they must deliberate more. The judge ended his\n\ninstructions with the challenge that he had taken his oath seriously and hoped they\n\nwould do the same.\n\n Shortly thereafter, when told that the one juror who wouldn’t vote to convict\n\nwas doing crossword puzzles, the judge ordered all the reading materials taken out\n\nof the jury room. That tactic turned out to be even more effective than threatening\n\nto kill the hapless Bushel had been in William Penn’s case three hundred years\n\nbefore. Just 18 minutes after all reading materials were removed, Brewster’s jury\n\ndutifully –– and we do mean dutifully –– returned a guilty verdict. Through it all\n\nBrewster’s two attorneys neither objected nor moved for a mistrial. Not once.\n\n\n\n\n 4\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 5 of 33\n\n\n This is Brewster’s appeal from the denial of his 28 U.S.C. § 2254 petition\n\nfor a writ of habeas corpus. He claims that his trial counsel rendered ineffective\n\nassistance by failing to object, or move for a mistrial, at any point during the\n\ndeadlocked deliberations.\n\n I.\n\n Here are the details. Brewster was tried on two counts of armed robbery.\n\nThe case went to the jury at 11:23 a.m. on the second day of trial. About three-\n\nand-a-half hours later, at 2:55 p.m., the jury sent a note to the trial judge asking:\n\n“If one person on the jury votes not guilty, what is outcome?” The judge\n\nresponded: “The Court cannot answer this question but will recharge you on any\n\ninstructions you wish.” There is no indication that the jury asked at that time to be\n\nrecharged on anything or that they were.\n\n Less than two hours later, at 4:20 p.m., the jury sent the judge a second note,\n\nwhich stated: “We are nine guilty and three not guilty. What instructions would\n\nyou give us as to what to do now? Everyone is firm in their decision.” The judge\n\nbrought the jury into the courtroom and asked the foreman, “[D]o you think there’s\n\nany way this case will be resolved on a unanimous verdict?” He answered “no.”\n\nThe judge responded by reading the jury Alabama’s pattern Allen instruction,\n\ncolloquially known as a dynamite charge. See Allen v. United States, 164 U.S.\n\n492, 501–02, 17 S. Ct. 154, 157 (1896); Dailey v. State, 828 So. 2d 344, 346–47\n\n 5\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 6 of 33\n\n\n(Ala. Crim. App. 2002). Among other things, the judge informed the jurors that if\n\nthey could not agree on a verdict, “a mistrial would be declared and this case\n\nwould have to be tried again.” He told them that each juror was “entitled to his or\n\nher opinion of the evidence” and that none of them should “surrender an honest\n\nconviction,” but he directed them to talk over their differences and to “make\n\nfurther efforts to arrive at a verdict” if they could conscientiously do so. The jurors\n\ndeliberated for another half-hour before being sent home for the day.\n\n The jury returned at 9:00 the next morning and continued deliberating. For\n\nreasons not explained in the record, another judge took over from the one who had\n\npresided the day before. At 10:57 a.m., almost two hours after deliberations had\n\nresumed that morning, the jurors sent out a third note. That note, as recounted by\n\nthe judge, stated that they could not reach a unanimous decision, that one juror had\n\ndecided not guilty, and that “no amount of time was going to sway them.” The\n\njudge brought the jurors into the courtroom and instructed them to “keep an open\n\nmind and go back point by point over the evidence that you have heard in this case\n\nand the law that was given to you by the Court and to keep deliberating.” The\n\njurors returned to the jury room at 11:00 a.m.\n\n Nearly three hours later, at 1:45 p.m., in a fourth note, the jury once again\n\ndeclared itself deadlocked –– really, really deadlocked –– telling the judge, as he\n\ninformed the attorneys, that “all jurors have decided firmly, eleven guilty, one not\n\n 6\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 7 of 33\n\n\nguilty, no possibility of resolve.” (Emphasis added.) The State requested that the\n\njudge give the Allen charge again, but instead he gave the jury a written instruction\n\nordering it to continue deliberating and telling the jurors if they needed to be\n\n“reinstructed on any elements of the crime, count one or count two, or reinstructed\n\non any issues, i.e., the burden of proof or reasonable doubt,” the court would\n\nreinstruct them. The jury did not ask for any more instructions.\n\n At 2:02 p.m., the jury sent a fifth note, telling the judge that the lone holdout\n\njuror was “unwilling to discuss the case with them.” The judge brought the jury\n\nback into the courtroom and gave it the longest additional instruction yet, covering\n\nseven-and-a-half pages of the transcript. He began by asking the jurors: “Do you\n\nremember . . . [y]ou all took a solemn oath that you would well and truly try all\n\nissues submitted to you and true verdicts render . . . according to the evidence in\n\nthe case and the law as given to you by the Court?” He went on: “You are not at\n\nliberty to just ignore the instructions of the Court. I’m not telling you to change\n\nyour mind, but I am asking you and reminding you of the oaths that you took and\n\nto take those seriously and to deliberate this case and talk.” In his instruction, the\n\njudge used the word “oath” nine times. He also reminded the jury that “beyond a\n\nreasonable doubt” does not mean absolute certainty, and that “[t]here is no such\n\nthing as absolute certainty in human affairs. For justice is after all, but an\n\n\n\n\n 7\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 8 of 33\n\n\napproximate science.” The judge concluded his lengthy instructions by telling the\n\njury:\n\n I have indicated to you that there’s two counts. I have reminded you\n of the oath that you have taken. I have given you reinstructions on\n reasonable doubt. I want you to go back, and I want you to continue\n to deliberate. Start at the beginning, if you have to. Go over every\n element or any part of this case you want to discuss. But you took an\n oath. I take mine seriously. I hope you do the same. Take them out.\n\n(Emphasis added.)\n\n The jurors went back into the jury room for more deliberations at 2:14 p.m.\n\nEleven minutes later, at 2:25 p.m., out came the jury’s sixth note. It stated that the\n\nholdout juror was refusing to discuss the case and had begun doing crossword\n\npuzzles. The judge responded by ordering the bailiff “to go to the jury room and\n\ntake all of the newspapers and all of the books and magazines — and whatever\n\nthey need to write on is fine and dandy. Remove the others.” Eighteen minutes\n\nlater, deprived of a way to shield herself from the importuning of the other jurors,\n\nthe holdout held out no more. At 2:48 p.m., a unanimous guilty verdict, to use the\n\nold term, “bounced out” of the jury room. Convicted of both counts of armed\n\nrobbery, Brewster was sentenced to life imprisonment without parole.\n\n II.\n\n The Alabama Court of Criminal Appeals affirmed Brewster’s conviction and\n\nsentence in a two-paragraph opinion. Brewster v. State, 51 So. 3d 407\n\n(unpublished table decision) (Ala. Crim. App. 2009).\n 8\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 9 of 33\n\n\n Brewster petitioned the state trial court for postconviction relief under Rule\n\n32 of the Alabama Rules of Criminal Procedure. He claimed, among other things,\n\nthat his trial counsel were ineffective for failing to move for a mistrial based on the\n\njurors’ repeated declarations that they were deadlocked “and/or” failing to object to\n\nthe court’s repeatedly ordering the jurors to continue deliberating. This is how his\n\npro se petition stated that claim:\n\n Counsel w[ere] Ineffective and Petitioner was prejudiced\n thereby when counsel fail[ed] to move for a mistrial and/or object to\n the Court further instructing the jury after the jury indicated that they\n were deadlocked.\n\n Petitioner avers that the record in this case[] reveals that the\n jury could not reach a verdict on the charges against the petitioner, the\n jury indicated on several occasions that they were deadlocked. The\n Court gave several instructions for the jury to continue to deliberate,\n however the jury returned and stated that they were deadlocked and\n could not reach a verdict.\n\n The Trial Court, this time, with a substitute judge, again\n instructed the jury to reach a verdict.\n\n Petitioner contends that he was prejudiced by the Court’s\n multiple charges to the jury to continue to deliberate as such coerced\n the j[u]ry into reaching a verdict.\n\n Counsel[’s] error in this regard[] prejudiced the petitioner and\n deprived him of a fundamental fair trial.\n\n(Citations omitted.)\n\n The state post-conviction court summarily dismissed Brewster’s petition.\n\nThe Court of Criminal Appeals vacated that dismissal and remanded the case for\n\n\n 9\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 10 of 33\n\n\nthe trial court to take evidence and enter findings of fact. On remand, the trial\n\ncourt did that and denied relief.1 This is what that court said about why it was\n\nrejecting Brewster’s claim that his counsel were ineffective for failing to object or\n\nmove for a mistrial based on the jury’s repeated statements that it was deadlocked\n\nand the judges’ repeated instructions ordering it to keep deliberating:\n\n It is well settled in this State that an Allen charge in a criminal\n case is proper so long as it is not coercive or threatening. Here,\n Appellant states that the jury was coerced into reaching a verdict; but\n he fails to cite the language that he finds coercive or threatening.\n Indeed, a review of all of the language in the supplemental charge\n fails to show that any of it was coercive or threatening. Absent such,\n trial counsels’ [sic] performance cannot be deficient in failing to move\n for a mistrial where none was warranted, or objecting where no\n objection was merited. As a result thereof, the Appellant has failed to\n show that his trial counsels’ [sic] performance was deficient, and this\n ground is found by the Court to be without merit.\n\n(Emphasis added and citations omitted.)\n\n Brewster appealed to the Court of Criminal Appeals, which affirmed the\n\npost-conviction trial court’s decision, concluding that its “findings [were]\n\nsupported by the record on remand, the record of the Rule 32 evidentiary hearing,\n\nand the record on direct appeal.” (Quotation marks omitted.) The Alabama\n\nSupreme Court denied Brewster’s petition for a writ of certiorari.\n\n 1\n The only evidence taken on remand was a short affidavit from the two trial counsel\nstating that they had advised Brewster of his right to testify at trial, which was relevant to a claim\nthat is not involved in this appeal. Counsel offered the state post-conviction no explanation for\nfailing to move for a mistrial when the jury repeatedly stated that it was deadlocked or for failing\nto object when the judges kept ordering the jury to continue deliberating.\n\n\n 10\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 11 of 33\n\n\n Brewster then filed this § 2254 petition in federal district court. He again\n\nalleged that his trial counsel were ineffective for failing to object or move for a\n\nmistrial based on the trial court’s multiple instructions to the jury to continue\n\ndeliberating. His federal claim was worded almost identically to the one he had\n\nraised in his state court Rule 32 petition. But this is how the magistrate judge\n\ninterpreted Brewster’s claim: “Brewster next argues that his trial counsel were\n\nineffective for failing to make a motion for a mistrial or for failing to object when\n\nthe trial court instructed the jury to continue deliberations after the jury informed\n\nthe court that it was deadlocked.” Relying on the Anti-Terrorism and Effective\n\nDeath Penalty Act’s deferential standard of review for claims adjudicated on the\n\nmerits in state court, and the state court’s reasoning that Brewster had failed to cite\n\nany coercive or threatening language in “the supplemental charge,” the magistrate\n\njudge rejected the claim. The district court adopted the magistrate judge’s report\n\nand recommendation and dismissed Brewster’s § 2254 petition.\n\n Brewster appealed and we granted a certificate of appealability on three\n\nclaims, only two of which are relevant to our resolution of this case:\n\n Whether the state post-conviction court and the district court\n misconstrued Brewster’s claim — that his trial counsel w[ere]\n ineffective for failing to object or move for a mistrial when the trial\n court continued to instruct the jury to deliberate after the jury\n indicated on three occasions that it was unable to reach a unanimous\n verdict — as arguing that trial counsel w[ere] ineffective for failing to\n challenge the language of the Allen instruction as coercive.\n\n 11\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 12 of 33\n\n\n Whether Brewster’s trial counsel w[ere] ineffective for failing\n to object or move for a mistrial when the trial court repeatedly\n instructed the jury to continue deliberating, after the jury indicated on\n three occasions that it was unable to reach a unanimous verdict. 2\n\n III.\n\n We review de novo the district court’s denial of a habeas petition. McNair\n\nv. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Which means we owe no\n\ndeference to the district court’s decision about the state court’s decision.\n\n Ordinarily, in a § 2254 case a federal court’s decision is narrowly limited by\n\nAEDPA, which permits relief on claims adjudicated on the merits in state court\n\nonly if the state court’s decision “was contrary to, or involved an unreasonable\n\napplication of, clearly established Federal law, as determined by the Supreme\n\nCourt of the United States.” 28 U.S.C. § 2254(d)(1). AEDPA imposes a “highly\n\ndeferential standard for evaluating state-court rulings and demands that state-court\n\ndecisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773,\n\n130 S. Ct. 1855, 1862 (2010) (quotation marks and citation omitted). “If, however,\n\nno state court has adjudicated the merits of a claim that was properly presented,\n\n‘federal habeas review is not subject to the deferential standard that applies under\n\nAEDPA. . . . Instead, the claim is reviewed de novo.’” Reaves v. Sec’y, Fla.\n\n 2\n We also granted a COA on whether Brewster’s counsel were ineffective for failing to\nrequest a jury instruction on mistaken identification. We need not address that issue because the\nother two are dispositive.\n\n\n 12\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 13 of 33\n\n\nDep’t of Corr., 872 F.3d 1137, 1151 (11th Cir. 2017) (alteration in original)\n\n(quoting Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769, 1784 (2009)).\n\n Neither the state post-conviction court nor the state appellate court ruled on\n\nthe actual claim that Brewster presented to them and is now presenting to us.\n\nInstead, they recast his claim as an attack on the language of one of the\n\nsupplemental instructions (without specifying which of the supplemental\n\ninstructions they were examining or how they selected that one). The state courts\n\nrejected the recast claim after finding that “a review of all of the language in the\n\nsupplemental charge fails to show that any of it was coercive or threatening.”\n\n That may be well and good, as far as it goes, but it does not go far enough to\n\ncover Brewster’s claim. His claim is that the total force and effect of the two trial\n\njudges instructing the jury over and over again that it must keep deliberating after\n\nthe jury declared over and over again that it was unable to reach a verdict, was\n\ncoercive. Brewster’s claim has never focused exclusively on the particular\n\nlanguage of any one of the several supplemental instructions. Instead, his claim\n\nhas always been based on his attorneys’ failure to object or move for a mistrial\n\ngiven the totality of the circumstances involving the jury’s inability to reach a\n\nunanimous verdict and the judges’ reaction to the deadlock. His is a macro claim,\n\nnot a micro one.\n\n\n\n\n 13\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 14 of 33\n\n\n Because the claim that we must decide is not a “claim that was adjudicated\n\non the merits in [the] State court proceedings,” 28 U.S.C. § 2254(d), we cannot\n\ndefer to the decisions of the state courts in this case. See Reaves, 872 F.3d at 1151.\n\n IV.\n\n To prevail on his ineffective assistance of counsel claim, Brewster must\n\n“demonstrate both that (1) ‘counsel’s performance was deficient,’ and (2) ‘the\n\ndeficient performance prejudiced the defense.’” United States v. Webb, 655 F.3d\n\n1238, 1258 (11th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687,\n\n104 S. Ct. 2052, 2064 (1984)). We can begin with either of those two components.\n\nStrickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“Although we have discussed the\n\nperformance component of an ineffectiveness claim prior to the prejudice\n\ncomponent, there is no reason for a court deciding an ineffective assistance claim\n\nto approach the inquiry in the same order . . . . In particular, a court need not\n\ndetermine whether counsel’s performance was deficient before examining the\n\nprejudice suffered by the defendant as a result of the alleged deficiencies.”).\n\nWe’ll start with prejudice.\n\n A.\n\n “[A]ctual ineffectiveness claims alleging a deficiency in attorney\n\nperformance are subject to a general requirement that the defendant affirmatively\n\nprove prejudice.” Id. at 693, 104 S. Ct. at 2067. That means “[t]he defendant must\n\n 14\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 15 of 33\n\n\nshow that there is a reasonable probability that, but for counsel’s unprofessional\n\nerrors, the result of the proceeding would have been different. A reasonable\n\nprobability is a probability sufficient to undermine confidence in the outcome.” Id.\n\nat 694, 104 S. Ct. at 2068.\n\n In applying that standard to an attorney’s failure to object or move for a\n\nmistrial, we ask whether there is a reasonable probability of a different result if\n\ncounsel had objected or moved for a mistrial. That, of course, requires at a\n\nminimum an error meriting an objection or a mistrial.\n\n How, one might ask, can we ever know if a timely objection would have\n\nbeen sustained and made a difference in the result, or that the mistrial motion\n\nwould have been granted and thereby avoided the conviction that occurred without\n\nit? The Supreme Court in Strickland provided this guidance: “An assessment of\n\nthe likelihood of a result more favorable to the defendant must exclude the\n\npossibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. . . . The\n\nassessment of prejudice should proceed on the assumption that the decisionmaker\n\nis reasonably, conscientiously, and impartially applying the standards that govern\n\nthe decision. It should not depend on the idiosyncracies of the particular\n\ndecisionmaker.” Id. at 695, 104 S. Ct. at 2068. It doesn’t matter for prejudice\n\npurposes whether the judge at this defendant’s trial would have sustained an\n\nobjection; what counts is whether the judge would have been required to do so\n\n 15\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 16 of 33\n\n\nunder the applicable law and, if so, whether doing so would have resulted in a\n\nreasonable probability of a different result.3 The answer is yes, and yes.\n\n A defendant “being tried by a jury is entitled to the uncoerced verdict of that\n\nbody.” Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S. Ct. 546, 552 (1988).\n\nCoercion does not mean “simple pressure to agree.” Smith v. United States, 542\n\nA.2d 823, 824 (D.C. 1988). As one court explained, “such pressure is a natural\n\nfunction of sending twelve persons into a jury room to deliberate.” Id. Pressure\n\nbecomes coercive when the actions of the court result in “a minority of the\n\njurors . . . sacrific[ing] their conscientious scruples for the sake of reaching\n\nagreement.” Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962). While a\n\n\n 3\n And to show prejudice it is usually, but not always, enough that applicable law would\nhave required the trial judge to grant a mistrial if one had been requested. The “but not always”\nqualifier is necessary because the reason that the mistrial would have been required must involve\nconstitutional concerns that go to the trial’s fundamental fairness and the reliability of the result.\nSo if, for example, a state law would have required a mistrial but that law does not touch on\nfundamental rights, cognizable prejudice has not occurred. See Hammond v. Hall, 586 F.3d\n1289, 1339–42 (11th Cir. 2009) (noting that defendant did not show prejudice because, even\nthough he was entitled to a mistrial under state law, that itself did not show that the proceeding\nproduced an unreliable result under Strickland because the state law was based on pragmatic\nconcerns, not constitutional ones).\n\n As the Supreme Court explained in Lockhart: “[A]n analysis focusing solely on mere\noutcome determination, without attention to whether the result of the proceeding was\nfundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely\nbecause the outcome would have been different but for counsel’s error may grant the defendant a\nwindfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369–70,\n113 S. Ct. 838, 842–43 (1993); see Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998) (“In\norder to demonstrate prejudice, a petitioner must show not only that had counsel acted in a\ndifferent manner a new trial would have been granted, but also that, as a result of counsel’s\nincompetence, the trial was rendered fundamentally unfair or unreliable.”).\n\n\n 16\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 17 of 33\n\n\ntrial court may instruct a deadlocked jury to continue deliberating, it “must not\n\ncoerce any juror to give up an honest belief.” United States v. Davis, 779 F.3d\n\n1305, 1312 (11th Cir. 2015); see Showers v. State, 407 So. 2d 169, 171 (Ala. 1981)\n\n(“It is quite clear that . . . a trial judge may urge a jury to resume deliberations and\n\ncultivate a spirit of harmony so as to reach a verdict, as long as the court does not\n\nsuggest which way the verdict should be returned and no duress or coercion is\n\nused.”).\n\n Our task in a de novo review is to examine the totality of the circumstances\n\nto see if the court’s actions created a substantial risk that one or more jurors would\n\nbe coerced into abandoning their honest convictions. See United States v.\n\nWoodard, 531 F.3d 1352, 1364 (11th Cir. 2008). The relevant circumstances\n\ninclude: (1) the total length of deliberations; (2) the number of times the jury\n\nreported being deadlocked and was instructed to resume deliberations; (3) whether\n\nthe judge knew of the jury’s numerical split when he instructed the jury to continue\n\ndeliberating; (4) whether any of the instructions implied that the jurors were\n\nviolating their oaths or acting improperly by failing to reach a verdict; and (5) the\n\ntime between the final supplemental instruction and the jury’s verdict. See, e.g.,\n\nLowenfield, 484 U.S. at 240, 108 S. Ct. at 552 (time between instruction and\n\nverdict); Davis, 779 F.3d at 1312–13 (total length of deliberation and number of\n\ntimes a jury reports deadlock); United States v. Brokemond, 959 F.2d 206, 209–10\n\n 17\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 18 of 33\n\n\n(11th Cir. 1992) (judge’s knowledge of jury’s split); United States v. Fossler, 597\n\nF.2d 478, 485 (5th Cir. 1979) (number of times jury instructed to continue\n\ndeliberating); Kesley v. United States, 47 F.2d 453, 453–54 (5th Cir. 1931)\n\n(impugning jurors’ integrity by accusing them of neglecting their oaths by failing\n\nto reach a verdict).\n\n That list is not exhaustive, and the presence of some of the circumstances\n\ndoes not necessarily establish a substantial risk of coercion. It depends on the\n\ntotality of the circumstances, an assessment of the cumulative effect of everything\n\nthat went on. See Fossler, 597 F.2d at 485 (We “assess[] the impact of the judge’s\n\nstatements in light of his language and the facts and circumstances which formed\n\ntheir context.”).\n\n Starting down the list of relevant circumstances, we note that Brewster’s\n\njury deliberated a total of only eleven hours over two days, which is not an\n\ninordinate amount of time. The problem, or one of them, is that during those eleven\n\nhours of deliberations the jury reported being deadlocked five times — once on the\n\nfirst day and four times on the second.4\n\n And the firmness of the deadlock only increased as deliberations continued.\n\nThe jury’s first deadlock note reported that the split was 9 to 3 and “[e]veryone is\n\n 4\n We are not counting the first note the jury sent out, which simply asked what would\nhappen if one person voted not guilty.\n\n\n 18\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 19 of 33\n\n\nfirm in their decision.” When asked whether there was “any way this case will be\n\nresolved on a unanimous verdict,” the foreman answered “no.” The second\n\ndeadlock note reported that the jury “could not reach a unanimous decision” and\n\nthat one juror “had decided not guilty and no amount of time was going to sway\n\nthem.” The third one reported that “all jurors have decided firmly, eleven guilty,\n\none not guilty, no possibility of resolve.” The fourth one stated that the holdout\n\njuror was “unwilling to discuss the case.” And the fifth one informed the judge\n\nthat the holdout juror was still refusing to discuss the case and was doing\n\ncrossword puzzles instead.\n\n After each of the first four deadlock reports, the judge gave the jurors\n\ninstructions of varying formality requiring them to continue deliberating and try to\n\nreach a unanimous verdict. After the fifth and final deadlock report, the judge’s\n\naction in having all of the reading materials taken out of the jury room sent a\n\nstrong message to the jury to get back to deliberating. One or two, or even three,\n\ninstructions requiring a deadlocked jury to keep on deliberating might not be a\n\nproblem, depending on the surrounding circumstances. But five instructions aimed\n\nat breaking a deadlock is a lot (especially, as we will discuss, when the judge knew\n\nexactly how the jury was divided).\n\n While “[w]e have never adopted a per se rule against successive Allen\n\ncharges,” Davis, 779 F.3d at 1312, the more times a jury tells the court that it is\n\n 19\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 20 of 33\n\n\ndeadlocked, and the more times the court responds by instructing the jury to\n\ncontinue deliberating, the greater the risk of coercion. In United States v. Fossler,\n\nfor instance, we concluded that the use of two Allen charges at the defendant’s trial\n\ncoerced a verdict where the jury “indicated at three separate points in time, over a\n\nthree day period, that it could not reach a decision,” and “[o]nly one hour after the\n\nsecond [Allen] charge was sent to the jury, a guilty verdict was returned.” 597\n\nF.2d at 485.\n\n The circumstances in this case are more extreme. The jurors faced the\n\ncumulative effect of a formal Allen charge, three additional instructions from the\n\ncourt to continue deliberating after the judge knew that there was only one holdout\n\nleft, and the removal of all reading material from the jury room in direct response\n\nto a report that the holdout juror was using that material to keep holding out.\n\n Pressure on jurors, especially on holdout jurors, is increased when the\n\ninstructions to keep trying to reach unanimity come from a judge who knows how\n\nsplit the jury is and in which direction. That is why the Supreme Court has\n\nexercised its supervisory authority to prohibit federal judges from inquiring how\n\ndeadlocked juries are split. The Court has explained that inquiring about the\n\nspecifics of the split “serves no useful purpose,” tends to be coercive, and “can\n\nrarely be resorted to without bringing to bear . . . an improper influence upon the\n\njury.” Brasfield v. United States, 272 U.S. 448, 450, 47 S. Ct. 135, 135–36 (1926).\n\n 20\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 21 of 33\n\n\nBecause it is an exercise of the Court’s supervisory authority over the lower federal\n\ncourts, the Brasfield rule does not apply to state courts (or to state prisoners\n\nseeking habeas relief in federal court). See 28 U.S.C. § 2241(c)(3) (“The writ of\n\nhabeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in\n\nviolation of the Constitution or laws or treaties of the United States.”); Lowenfield,\n\n484 U.S. at 239–40, 108 S. Ct. at 552 (the Brasfield rule applies only to federal\n\ncourts); Showers, 407 So. 2d at 171 (declining to adopt the Brasfield rule for use in\n\nAlabama state courts).\n\n Still, the Supreme Court’s prohibiting federal judges from inquiring into the\n\nspecifics of a jury split underscores the problem with the judge having that\n\nknowledge. Lowenfield, 484 U.S. at 240, 108 S. Ct. at 552. The problem exists\n\nwhether the judge asked for the information or the jury disclosed it without any\n\nprompting. If the jury is aware that the court knows it is divided in favor of\n\nconvicting the defendant, and the court repeatedly instructs the jury to continue\n\ndeliberating, the jurors in the minority may feel pressured to join the majority in\n\norder to placate the judge. See Brasfield, 272 U.S. at 450, 47 S. Ct. at 135–36.\n\nThat pressure only increases when, as here, the judge is told that the jury is divided\n\n9 to 3 for conviction, and then 11 to 1 for conviction, and later that it is still hung at\n\n11 to 1 for conviction.\n\n\n\n\n 21\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 22 of 33\n\n\n The judge knew — and the jurors knew that the judge knew — there was but\n\na single holdout standing between a mistrial and a guilty verdict. Everything that\n\nhappened after the jury sent the second of five deadlock notes with the 11 to 1\n\nbreakdown has to be understood in that context. It was as if the judge were saying:\n\n“I know [there is one] of you [who is] holding up a verdict; you should stop being\n\nso stubborn and fall in line.” Smith, 542 A.2d at 825. And that is what the holdout\n\njuror finally did. After three more deadlock notes and several additional\n\ninstructions to keep deliberating, she finally fell in line and voted to convict.5\n\n We have also held, for obvious reasons, that “comments, not upon the\n\nevidence, but reflecting on the jurors, are not permissible.” Kesley, 47 F.2d at 454.\n\nIn Kesley, the judge admonished the jury that “it is apparent to the court that some\n\nof you have forgotten . . . your oaths as jurors. It does not seem to me that there is\n\nvery much doubt as far as the facts are concerned.” Id. at 453. We reversed the\n\nresulting conviction and explained that “[n]o juror should be induced to agree to a\n\n\n\n\n 5\n Disclosure of the specifics of a jury’s division by itself would not necessarily be\ngrounds for a mistrial, even in federal court. See United States v. Norton, 867 F.2d 1354, 1365\n(11th Cir. 1989) (“[U]nsolicited disclosure of the jury’s division by a juror is not by itself a\nground for a mistrial.”); Sanders v. United States, 415 F.2d 621, 631–32 (5th Cir. 1969) (“The\nfact that the jury contrary to the instructions of the court volunteered to the court the extent of\ntheir division and which way they stood is no reason why the court should be precluded from\ngiving an otherwise proper Allen charge.”). But disclosure that a majority of the jurors favor\nconviction can act as a multiplier of the coercion arising from other circumstances.\n\n\n 22\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 23 of 33\n\n\nverdict by a fear that a failure so to agree will be regarded by the public as\n\nreflecting upon either his intelligence, or his integrity.” Id.\n\n The trial judge may have stepped over that line here and committed Kesley\n\nerror in the lengthy instruction that he gave in responding to the jury’s fourth\n\ndeadlock note, which informed him that the lone holdout juror had quit discussing\n\nthe case with the other jurors. In that instruction the judge used the word oath nine\n\ntimes, the last time being when he concluded his charge with this statement:\n\n“[Y]ou took an oath. I take mine seriously. I hope you do the same.” Though the\n\njudge addressed his admonitions to the entire jury, the lone holdout must have felt\n\nas though they were aimed at her. It was her vote not to convict, after all, that had\n\nled to the lecture to begin with. And the message that was embedded in the charge\n\nto take the oath seriously was that doing so would lead to a unanimous verdict.\n\n The final circumstance contributing to our conclusion that the verdict was\n\ncoerced is how quickly the jury unanimously agreed on a verdict after the court’s\n\nlast instruction and action. A verdict of conviction “bounced out” of the jury room\n\nonly 34 minutes after the last instruction from the judge (and only 18 minutes after\n\nthe holdout juror’s reading material was taken away). See Lowenfield, 484 U.S. at\n\n240, 108 S. Ct. at 552 (“We are mindful that the jury returned with its verdict soon\n\nafter receiving the supplemental instruction, and that this suggests the possibility of\n\ncoercion.”); Woodard, 531 F.3d at 1364 (“In assessing whether the charge was\n\n 23\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 24 of 33\n\n\ncoercive, we consider the language of the charge and the totality of the\n\ncircumstances under which it was delivered, e.g., . . . the amount of time between\n\nthe delivery of the charge and the return of the jury’s verdict.”); Fossler, 597 F.2d\n\nat 485 (finding coercion where, among other things, “[o]nly one hour after the\n\nsecond Allen charge was sent to the jury, a guilty verdict was returned”); cf.\n\nNorton, 867 F.2d at 1364–66 (stating that the jury was not coerced because it\n\n“deliberated some four hours after the trial court’s supplementary instruction, a\n\ntime period not suggestive of a coercive or pressure-filled atmosphere”).\n\n To be sure, the holdout juror was not threatened with branding or\n\nexsanguination, and the jury was not hauled around in a cart. What happened at\n\nBrewster’s trial would have passed muster in seventeenth-century England, but in\n\ntwenty-first century Alabama it does not. The coercive circumstances that led to\n\nthe verdict undermined the fundamental fairness of the trial and the reliability of\n\nthe verdict. Those circumstances entitled Brewster to a mistrial under Alabama\n\nlaw, and also under federal law. See Orr v. State, 111 So. 2d 639, 640 (Ala. 1959);\n\nJones v. State, 217 So. 3d 947, 952 (Ala. Crim. App. 2016); Gidley v. State, 95 So.\n\n330, 330–31 (Ala. Ct. App. 1923); see also United States v. Amaya, 509 F.2d 8, 9–\n\n11 (5th Cir. 1975). The failure of Brewster’s counsel to object and to move for a\n\nmistrial, as the coercive circumstances piled up, was prejudicial.\n\n\n\n\n 24\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 25 of 33\n\n\n B.\n\n We turn now to whether Brewster’s trial counsel’s failure to object and\n\nmove for a mistrial was deficient performance for Strickland purposes. The\n\nstandard for effective assistance of counsel is reasonableness, not perfection.\n\nStrickland, 466 U.S. at 687, 104 S. Ct. at 2064 (“[T]he proper standard for attorney\n\nperformance is that of reasonably effective assistance.”); Harrington v. Richter,\n\n562 U.S. 86, 110, 131 S. Ct. 770, 791 (2011) (“Strickland does not guarantee\n\nperfect representation, only a reasonably competent attorney.”) (quotation marks\n\nomitted); Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 6 (2003) (per curiam)\n\n(“The Sixth Amendment guarantees reasonable competence, not perfect advocacy\n\njudged with the benefit of hindsight.”). As we have pointed out, “[t]he\n\nreasonableness of a counsel’s performance is an objective inquiry.” Chandler v.\n\nUnited States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). “And because\n\ncounsel’s conduct is presumed reasonable, for a petitioner to show that the conduct\n\nwas unreasonable, a petitioner must establish that no competent counsel would\n\nhave taken the action that his counsel did take.” Id.\n\n Defense counsel, of course, need not make meritless motions or lodge futile\n\nobjections. Meders v. Warden, Ga. Diagnostic Prison, 900 F.3d 1330, 1349 (11th\n\nCir. 2018) (“It is not ineffective assistance of counsel to fail to make an objection\n\nthat is not due to be sustained.”); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297\n\n 25\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 26 of 33\n\n\n(11th Cir. 2017) (“[A]n attorney will not be held to have performed deficiently for\n\nfailing to perform a futile act, one that would not have gotten his client any\n\nrelief.”). That is not a consideration here because, as our discussion of the\n\nprejudice component demonstrates, an objection or motion for mistrial would not\n\nhave been futile or lacking in merit. We need not decide how early in the chain of\n\ncoercive circumstances that counsel’s failures to object or move for a mistrial\n\nbecame bad enough to be deficient performance for ineffective assistance\n\npurposes. The later failures suffice. By the time the jury had declared itself\n\ndeadlocked for the fifth time and the judge had given his fourth instruction for it to\n\ncontinue deliberating, which included language implicitly criticizing the lone\n\nholdout for not giving in, any reasonable attorney would have objected and moved\n\nfor a mistrial.\n\n It is not ineffective assistance for counsel to fail to make an objection or\n\nmotion that depends on the future development of the law. See United States v.\n\nArdley, 273 F.3d 991, 993 (11th Cir. 2001); Spaziano v. Singletary, 36 F.3d 1028,\n\n1039 (11th Cir. 1994). But the law at the time of Brewster’s trial made clear that\n\nthe risk of a coerced verdict was unacceptable. There was no need for\n\nclairvoyance.\n\n We recognize that “defense counsel, in defending their client’s interests,\n\nneed not urge every conceivable objection the law would provide.” Hubbard v.\n\n 26\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 27 of 33\n\n\nHaley, 317 F.3d 1245, 1259 (11th Cir. 2003). The failure to make every valid\n\nobjection or pursue every motion that has merit will not necessarily take counsel’s\n\nperformance “outside the wide range of professionally competent assistance,”\n\nwhich is the scope of permissible performance. See Strickland, 466 U.S. at 690,\n\n104 S. Ct. at 2066. But the fundamental error that Brewster’s counsel let go was\n\none that any reasonable counsel would not have overlooked or thought unworthy\n\nof pursuing. It was obvious error that unfolded over a period of two days in a\n\ncourse of action that grew progressively worse. Counsel had plenty of time to\n\nrecognize the error and react.\n\n Of course, counsel can for reasonable strategic reasons refrain from making\n\na valid objection or moving for relief their client is entitled to if there are\n\nreasonable strategic reasons for not objecting or moving. See Walls v. Buss, 658\n\nF.3d 1274, 1279 (11th Cir. 2011) (“[W]e have recognized that it can be reasonable\n\nto let incriminating evidence come to the jury’s attention.”); see also Richter, 562\n\nU.S. at 109, 131 S. Ct. at 790 (“There is a strong presumption that counsel’s\n\nattention to certain issues to the exclusion of others reflects trial tactics rather than\n\nsheer neglect.”) (quotation marks omitted); Strickland, 466 U.S. at 690, 104 S. Ct.\n\nat 2066 (explaining that strategic choices between plausible options are virtually\n\nunchallengeable); Chandler, 218 F.3d at 1314 (“[A] court must not second-guess\n\ncounsel’s strategy.”). The standard, again, is whether any competent counsel\n\n 27\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 28 of 33\n\n\nwould have done as defense counsel did and taken, or failed to take, the course of\n\naction that counsel took or failed to take. Chandler, 218 F.3d at 1315. The answer\n\nto that question is not difficult here.\n\n Even before the second judge targeted the lone holdout by having the bailiff\n\nconfiscate her crossword puzzles, any reasonable attorney would have objected or\n\nmoved for a mistrial. By that point there had already been five declarations of\n\ndeadlock by the jury; four written and oral instructions from two different judges to\n\ncontinue deliberating; the implication by the second judge that by not joining the\n\nothers the holdout juror was violating her oath; and the periodic disclosures of the\n\njury’s numerical breakdown in favor of convicting Brewster. Things kept getting\n\nworse for the defense. It doesn’t take “the pricking of my thumbs” to know that\n\n“something wicked this way comes” for a defendant when a jury goes from 9 to 3\n\nfor conviction to 11 to 1 for conviction and the lone holdout faces the coercive\n\ncircumstances that this one did. Cf. William Shakespeare, The Tragedy of\n\nMacbeth, act 4, sc. 1.\n\n As the Second Circuit observed: “In deciding whether to move for a mistrial\n\nwhen a jury reports deadlock, a defendant acting completely rationally would\n\ncompare the likely consequences of allowing the jury to deliberate longer with the\n\nlikely consequences of obtaining a mistrial.” Lane v. Lord, 815 F.2d 876, 879 (2d\n\nCir. 1987). Here the overwhelmingly likely consequences of the attorneys doing\n\n 28\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 29 of 33\n\n\nnothing was conviction and the resulting sentence of life without parole, while\n\nmoving for the mistrial to which their client was entitled would have gotten him a\n\nnew trial.\n\n It is no answer to invoke some of our general language, as the State does,\n\nthat “the decision to refrain from asking the court for a mistrial is a tactical\n\ndecision entrusted to defense counsel.” United States v. Burke, 257 F.3d 1321,\n\n1324 (11th Cir. 2001). Tactical decisions need rational reasons behind them. For\n\nexample, it might be reasonable for an attorney to refrain from objecting or seeking\n\na mistrial early on in the process, or when only one or two signs of coercion are\n\npresent, or when it looks like the deadlocked jury may be divided in favor of\n\nacquittal. See, e.g., Cannon v. State, 806 S.E.2d 584, 589 (Ga. 2017) (defense\n\nattorney sought Allen charge before seeking mistrial because, “in his experience,\n\nrequesting the Allen charge hastens jury deadlock and increases the chance the trial\n\ncourt will grant a mistrial”).\n\n One of our decisions provides a concrete example of strategic reasons for\n\nnot requesting a mistrial. The Hammond case involved an attorney who did not\n\nmove for a mistrial to which the defendant was entitled under state law based on a\n\nprosecutor’s inappropriate comment during the sentencing phase of a capital case.\n\nSee Hammond, 586 F.3d at 1332. We held that the attorney did not perform\n\n\n\n\n 29\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 30 of 33\n\n\ndeficiently even though the defendant would have been given a mistrial of the\n\nsentencing stage if he had requested one. Id. at 1335.\n\n We explained in Hammond that a reasonable attorney could have been leery\n\nof a mistrial for several reasons, any one of which would have been enough to\n\nshow that the representation was not deficient. Id. at 1333. First, the defendant in\n\nthat case was a black man accused of murdering a white woman, and his attorney\n\nhad managed after five days of extensive voir dire to have a jury selected that\n\nconsisted of eight black jurors and four white jurors. Id. We noted that “[a]n\n\nattorney reasonably could have considered the jury composition favorable and not\n\nwanted to risk losing it in a do-over.” Id. Second, if a mistrial had been declared,\n\nthe original jury (which had found Hammond guilty) would have been excused and\n\na new one empaneled to determine only the sentence. The new jury would “be\n\ninstructed that Hammond had been found guilty and then would be immersed in\n\nthe horrible details of the crimes he had committed.” Id. We concluded that a\n\nreasonable attorney might want to avoid that prospect in favor of keeping the\n\noriginal jury because it might have some residual doubts from the guilt phase of\n\nthe trial. Id. at 1333–34.\n\n Third, we also found that “an attorney could have reasonably believed that a\n\nnew sentence hearing months in the future would open up for reconsideration some\n\nevidentiary rulings that had been made in Hammond’s favor.” Id. at 1334.\n\n 30\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 31 of 33\n\n\nFinally, we considered that a reasonable attorney could have relied on the\n\npresumption that the jury would disregard the prosecutor’s improper remark when\n\nit was told to do so by the court and that this was a better option than seeking a\n\nmistrial. Id. “In sum,” we concluded, “not asking for a mistrial was objectively\n\nwithin the wide range of professionally competent assistance.” Id. at 1335\n\n(quotation marks omitted).\n\n In Brewster’s case “[t]here is no indication in the record that [counsel’s]\n\nfailure even to raise an objection [or move for a mistrial] . . . was a product of any\n\ntactical forethought and we can only speculate as to the reasons for [their] silence.”\n\nJackson v. Herring, 42 F.3d 1350, 1360 (11th Cir. 1995) (emphasis omitted).\n\nPerhaps they thought that any objection would be meritless. If so, they were really\n\nwrong. Or perhaps they didn’t see the obvious signs of coercion or didn’t know\n\nthat a coerced verdict was unlawful. We have recognized, after all, that simple\n\nignorance of the law is not always enough for counsel to be ineffective. See\n\nHarich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1998) (en banc). But that is no\n\nanswer either. Trial counsel’s ignorance of a point of law “that is fundamental to\n\n[their] case combined with [their] failure to perform basic research on that point is\n\na quintessential example of unreasonable performance under Strickland.” Hinton\n\nv. Alabama, 571 U.S. 263, 274, 134 S. Ct. 1081, 1089 (2014); see Hollis v. Davis,\n\n941 F.2d 1471, 1478 (11th Cir. 1991) (“If [trial counsel] did not assert this right\n\n 31\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 32 of 33\n\n\nbecause [they] w[ere] unaware of it, [their] representation was not within the range\n\nof competence demanded of attorneys in criminal cases.”) (quotation marks\n\nomitted). Brewster’s attorneys had plenty of time during the jury’s deliberations\n\nover two days to research the law if they were unfamiliar with it.\n\n And it ultimately does not matter if trial counsel subjectively thought that\n\nthe ongoing forced deliberations would somehow turn out well for Brewster. As\n\nwe explained in Hammond, counsel’s tactical decision must be one that an attorney\n\nreasonably could have made. See Hammond, 586 F.3d at 1332 (“Under the law of\n\nthis circuit the question is not why [the defendant’s] counsel failed to move for a\n\nmistrial . . . but whether a competent attorney reasonably could have decided not to\n\nmove for one.”). As the circumstances got worse, any reasonable attorney would\n\nhave objected or moved for a mistrial.\n\n It doesn’t take a Clarence Darrow to realize that if a jury has gone from 9 to\n\n3 in favor of conviction to 11 to 1 for it, and is complaining about the lone\n\nholdout’s behavior and her refusal to go along with the others, that jury is not\n\nheaded toward an acquittal. See Lane, 815 F.2d at 879. Unlike in Hammond, there\n\nwas no conceivable reason, no reasonable strategy, for sitting silent and seeing\n\nhow things would turn out. The cards had already been dealt, face up, and it was\n\nobvious who had the losing hand. Brewster did not receive the “reasonably\n\n\n\n\n 32\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 33 of 33\n\n\neffective assistance” of counsel that he was entitled to under Strickland. 466 U.S.\n\nat 687, 104 S. Ct. at 2064.\n\n V.\n\n The judgment denying the petition for a writ of habeas corpus is\n\nREVERSED.\n\n\n\n\n 33", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360629/", "author_raw": "ED CARNES, Chief Judge"}]} | CARNES | BRANCH | FAY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583376/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Sumnar Robert BREWSTER, Petitioner-Appellant, v. Gary HETZEL, Attorney General, State of Alabama, Respondents-Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-16350 Date Filed: 01/22/2019 Page: 1 of 33\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-16350\n ________________________\n\n D.C. Docket No. 4:13-cv-01279-RDP-JEO\n\n\n\nSUMNAR ROBERT BREWSTER,\n\n Petitioner-Appellant,\n\n versus\n\nGARY HETZEL,\nATTORNEY GENERAL, STATE OF ALABAMA\n Respondents-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Alabama\n ________________________\n\n (January 22, 2019)\n\nBefore ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.\n\nED CARNES, Chief Judge:\n\n In olden days a number of methods were used to ensure that juries reached a\n\nunanimous verdict. From the fourteenth through the eighteenth centuries, one\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 2 of 33\n\n\n“method of accelerating unanimity” was to prohibit jurors from eating or drinking\n\nuntil they all agreed on a verdict. 3 William Blackstone, Commentaries *375.\n\nAnd if jurors did not unanimously agree on one before the judges left town,\n\nBlackstone recounted, “the judges are not bound to wait for them, but may carry\n\nthem round the circuit from town to town in a cart.” Id. at *376. They were\n\nhauled around in the cart “until a judgment ‘bounced out.’” Renico v. Lett, 559\n\nU.S. 766, 780, 130 S. Ct. 1855, 1866 (2010) (Stevens, J., dissenting). Which is to\n\nsay until the resolve bounced out of the holdout jurors.\n\n In one seventeenth-century sedition trial (involving William Penn and a co-\n\ndefendant), the jury deadlocked on the most serious charge. George C. Thomas III\n\n& Mark Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury\n\nInstructions, 15 Wm. & Mary Bill Rights J. 893, 898–99 (2007). The judge\n\nresponded by threatening to have a juror named Bushel branded unless the jury\n\nagreed that the defendants were guilty as charged. Id. at 899. When no verdict\n\nwas forthcoming, the judge did not send for a branding iron, but he did have all the\n\njurors “locked in the jury room without meat, drink, fire, and tobacco” until they\n\ncould agree. Id. (quotation marks omitted). After nicotine withdrawal and the\n\nprospect of starvation failed to work, “the judge threatened to cut Bushel’s throat”\n\nif there were no verdict. Id. (Thus posing the prospect of a dead juror to unlock a\n\ndeadlocked jury.) When even that threat did not bring forth a unanimous verdict,\n\n 2\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 3 of 33\n\n\nthe judge gave up. Id. Bushel escaped the experience unbranded and with his\n\nthroat intact, while the jury as a whole escaped with its disagreement intact. But\n\nthe judge was angry enough at the jurors’ failure to agree that he fined each of\n\nthem forty marks for their intransigence. Id. Fortunately, when the case made it to\n\nthe Court of Common Pleas the fines were set aside. Id. at 899–900. History does\n\nnot record if Bushel or any of the eleven other brave souls ever served on another\n\njury.\n\n Since those days, we have come a long way and now accept that some jury\n\ndeliberations will end in deadlock. United States v. Rey, 811 F.2d 1453, 1460\n\n(11th Cir. 1987) (“The jury trial system has not malfunctioned when the jury\n\ncannot reach a verdict. One of the safeguards against the conviction of innocent\n\npersons built into our criminal justice system is that a jury may not be able to reach\n\na unanimous verdict.”). We no longer try to coerce holdout jurors to reach a\n\nverdict that they cannot abide. Or at least most of the time we don’t.\n\n The jury that convicted our appellant, Sumnar Brewster, might feel some\n\naffinity with juries of yesteryear. Over the period of two days of deliberations the\n\njurors repeatedly told the judges –– there was one judge on the first day of\n\ndeliberations and a different one on the second day –– that they could not reach a\n\nunanimous verdict. And the judges repeatedly ordered them to keep trying. All\n\n\n\n\n 3\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 4 of 33\n\n\ntold, the jurors sent six notes to the two judges stating that they could not reach a\n\nverdict.\n\n Three times the jurors disclosed how they were divided: first reporting that\n\nthey were deadlocked 9 to 3 for conviction, later that they were still deadlocked but\n\nnow 11 to 1 in favor of conviction, and still later that the one holdout juror was\n\ncontinuing to hold out. Throughout the deadlocking, the judges gave a formal\n\nAllen charge, later two additional admonitions that the jurors must continue\n\ndeliberating, and finally, another long charge that included instructions to keep on\n\ndeliberating. That lengthy charge emphasized that the jurors had taken an oath to\n\nfollow the law, which meant they must deliberate more. The judge ended his\n\ninstructions with the challenge that he had taken his oath seriously and hoped they\n\nwould do the same.\n\n Shortly thereafter, when told that the one juror who wouldn’t vote to convict\n\nwas doing crossword puzzles, the judge ordered all the reading materials taken out\n\nof the jury room. That tactic turned out to be even more effective than threatening\n\nto kill the hapless Bushel had been in William Penn’s case three hundred years\n\nbefore. Just 18 minutes after all reading materials were removed, Brewster’s jury\n\ndutifully –– and we do mean dutifully –– returned a guilty verdict. Through it all\n\nBrewster’s two attorneys neither objected nor moved for a mistrial. Not once.\n\n\n\n\n 4\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 5 of 33\n\n\n This is Brewster’s appeal from the denial of his 28 U.S.C. § 2254 petition\n\nfor a writ of habeas corpus. He claims that his trial counsel rendered ineffective\n\nassistance by failing to object, or move for a mistrial, at any point during the\n\ndeadlocked deliberations.\n\n I.\n\n Here are the details. Brewster was tried on two counts of armed robbery.\n\nThe case went to the jury at 11:23 a.m. on the second day of trial. About three-\n\nand-a-half hours later, at 2:55 p.m., the jury sent a note to the trial judge asking:\n\n“If one person on the jury votes not guilty, what is outcome?” The judge\n\nresponded: “The Court cannot answer this question but will recharge you on any\n\ninstructions you wish.” There is no indication that the jury asked at that time to be\n\nrecharged on anything or that they were.\n\n Less than two hours later, at 4:20 p.m., the jury sent the judge a second note,\n\nwhich stated: “We are nine guilty and three not guilty. What instructions would\n\nyou give us as to what to do now? Everyone is firm in their decision.” The judge\n\nbrought the jury into the courtroom and asked the foreman, “[D]o you think there’s\n\nany way this case will be resolved on a unanimous verdict?” He answered “no.”\n\nThe judge responded by reading the jury Alabama’s pattern Allen instruction,\n\ncolloquially known as a dynamite charge. See Allen v. United States, 164 U.S.\n\n492, 501–02, 17 S. Ct. 154, 157 (1896); Dailey v. State, 828 So. 2d 344, 346–47\n\n 5\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 6 of 33\n\n\n(Ala. Crim. App. 2002). Among other things, the judge informed the jurors that if\n\nthey could not agree on a verdict, “a mistrial would be declared and this case\n\nwould have to be tried again.” He told them that each juror was “entitled to his or\n\nher opinion of the evidence” and that none of them should “surrender an honest\n\nconviction,” but he directed them to talk over their differences and to “make\n\nfurther efforts to arrive at a verdict” if they could conscientiously do so. The jurors\n\ndeliberated for another half-hour before being sent home for the day.\n\n The jury returned at 9:00 the next morning and continued deliberating. For\n\nreasons not explained in the record, another judge took over from the one who had\n\npresided the day before. At 10:57 a.m., almost two hours after deliberations had\n\nresumed that morning, the jurors sent out a third note. That note, as recounted by\n\nthe judge, stated that they could not reach a unanimous decision, that one juror had\n\ndecided not guilty, and that “no amount of time was going to sway them.” The\n\njudge brought the jurors into the courtroom and instructed them to “keep an open\n\nmind and go back point by point over the evidence that you have heard in this case\n\nand the law that was given to you by the Court and to keep deliberating.” The\n\njurors returned to the jury room at 11:00 a.m.\n\n Nearly three hours later, at 1:45 p.m., in a fourth note, the jury once again\n\ndeclared itself deadlocked –– really, really deadlocked –– telling the judge, as he\n\ninformed the attorneys, that “all jurors have decided firmly, eleven guilty, one not\n\n 6\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 7 of 33\n\n\nguilty, no possibility of resolve.” (Emphasis added.) The State requested that the\n\njudge give the Allen charge again, but instead he gave the jury a written instruction\n\nordering it to continue deliberating and telling the jurors if they needed to be\n\n“reinstructed on any elements of the crime, count one or count two, or reinstructed\n\non any issues, i.e., the burden of proof or reasonable doubt,” the court would\n\nreinstruct them. The jury did not ask for any more instructions.\n\n At 2:02 p.m., the jury sent a fifth note, telling the judge that the lone holdout\n\njuror was “unwilling to discuss the case with them.” The judge brought the jury\n\nback into the courtroom and gave it the longest additional instruction yet, covering\n\nseven-and-a-half pages of the transcript. He began by asking the jurors: “Do you\n\nremember . . . [y]ou all took a solemn oath that you would well and truly try all\n\nissues submitted to you and true verdicts render . . . according to the evidence in\n\nthe case and the law as given to you by the Court?” He went on: “You are not at\n\nliberty to just ignore the instructions of the Court. I’m not telling you to change\n\nyour mind, but I am asking you and reminding you of the oaths that you took and\n\nto take those seriously and to deliberate this case and talk.” In his instruction, the\n\njudge used the word “oath” nine times. He also reminded the jury that “beyond a\n\nreasonable doubt” does not mean absolute certainty, and that “[t]here is no such\n\nthing as absolute certainty in human affairs. For justice is after all, but an\n\n\n\n\n 7\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 8 of 33\n\n\napproximate science.” The judge concluded his lengthy instructions by telling the\n\njury:\n\n I have indicated to you that there’s two counts. I have reminded you\n of the oath that you have taken. I have given you reinstructions on\n reasonable doubt. I want you to go back, and I want you to continue\n to deliberate. Start at the beginning, if you have to. Go over every\n element or any part of this case you want to discuss. But you took an\n oath. I take mine seriously. I hope you do the same. Take them out.\n\n(Emphasis added.)\n\n The jurors went back into the jury room for more deliberations at 2:14 p.m.\n\nEleven minutes later, at 2:25 p.m., out came the jury’s sixth note. It stated that the\n\nholdout juror was refusing to discuss the case and had begun doing crossword\n\npuzzles. The judge responded by ordering the bailiff “to go to the jury room and\n\ntake all of the newspapers and all of the books and magazines — and whatever\n\nthey need to write on is fine and dandy. Remove the others.” Eighteen minutes\n\nlater, deprived of a way to shield herself from the importuning of the other jurors,\n\nthe holdout held out no more. At 2:48 p.m., a unanimous guilty verdict, to use the\n\nold term, “bounced out” of the jury room. Convicted of both counts of armed\n\nrobbery, Brewster was sentenced to life imprisonment without parole.\n\n II.\n\n The Alabama Court of Criminal Appeals affirmed Brewster’s conviction and\n\nsentence in a two-paragraph opinion. Brewster v. State, 51 So. 3d 407\n\n(unpublished table decision) (Ala. Crim. App. 2009).\n 8\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 9 of 33\n\n\n Brewster petitioned the state trial court for postconviction relief under Rule\n\n32 of the Alabama Rules of Criminal Procedure. He claimed, among other things,\n\nthat his trial counsel were ineffective for failing to move for a mistrial based on the\n\njurors’ repeated declarations that they were deadlocked “and/or” failing to object to\n\nthe court’s repeatedly ordering the jurors to continue deliberating. This is how his\n\npro se petition stated that claim:\n\n Counsel w[ere] Ineffective and Petitioner was prejudiced\n thereby when counsel fail[ed] to move for a mistrial and/or object to\n the Court further instructing the jury after the jury indicated that they\n were deadlocked.\n\n Petitioner avers that the record in this case[] reveals that the\n jury could not reach a verdict on the charges against the petitioner, the\n jury indicated on several occasions that they were deadlocked. The\n Court gave several instructions for the jury to continue to deliberate,\n however the jury returned and stated that they were deadlocked and\n could not reach a verdict.\n\n The Trial Court, this time, with a substitute judge, again\n instructed the jury to reach a verdict.\n\n Petitioner contends that he was prejudiced by the Court’s\n multiple charges to the jury to continue to deliberate as such coerced\n the j[u]ry into reaching a verdict.\n\n Counsel[’s] error in this regard[] prejudiced the petitioner and\n deprived him of a fundamental fair trial.\n\n(Citations omitted.)\n\n The state post-conviction court summarily dismissed Brewster’s petition.\n\nThe Court of Criminal Appeals vacated that dismissal and remanded the case for\n\n\n 9\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 10 of 33\n\n\nthe trial court to take evidence and enter findings of fact. On remand, the trial\n\ncourt did that and denied relief.1 This is what that court said about why it was\n\nrejecting Brewster’s claim that his counsel were ineffective for failing to object or\n\nmove for a mistrial based on the jury’s repeated statements that it was deadlocked\n\nand the judges’ repeated instructions ordering it to keep deliberating:\n\n It is well settled in this State that an Allen charge in a criminal\n case is proper so long as it is not coercive or threatening. Here,\n Appellant states that the jury was coerced into reaching a verdict; but\n he fails to cite the language that he finds coercive or threatening.\n Indeed, a review of all of the language in the supplemental charge\n fails to show that any of it was coercive or threatening. Absent such,\n trial counsels’ [sic] performance cannot be deficient in failing to move\n for a mistrial where none was warranted, or objecting where no\n objection was merited. As a result thereof, the Appellant has failed to\n show that his trial counsels’ [sic] performance was deficient, and this\n ground is found by the Court to be without merit.\n\n(Emphasis added and citations omitted.)\n\n Brewster appealed to the Court of Criminal Appeals, which affirmed the\n\npost-conviction trial court’s decision, concluding that its “findings [were]\n\nsupported by the record on remand, the record of the Rule 32 evidentiary hearing,\n\nand the record on direct appeal.” (Quotation marks omitted.) The Alabama\n\nSupreme Court denied Brewster’s petition for a writ of certiorari.\n\n 1\n The only evidence taken on remand was a short affidavit from the two trial counsel\nstating that they had advised Brewster of his right to testify at trial, which was relevant to a claim\nthat is not involved in this appeal. Counsel offered the state post-conviction no explanation for\nfailing to move for a mistrial when the jury repeatedly stated that it was deadlocked or for failing\nto object when the judges kept ordering the jury to continue deliberating.\n\n\n 10\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 11 of 33\n\n\n Brewster then filed this § 2254 petition in federal district court. He again\n\nalleged that his trial counsel were ineffective for failing to object or move for a\n\nmistrial based on the trial court’s multiple instructions to the jury to continue\n\ndeliberating. His federal claim was worded almost identically to the one he had\n\nraised in his state court Rule 32 petition. But this is how the magistrate judge\n\ninterpreted Brewster’s claim: “Brewster next argues that his trial counsel were\n\nineffective for failing to make a motion for a mistrial or for failing to object when\n\nthe trial court instructed the jury to continue deliberations after the jury informed\n\nthe court that it was deadlocked.” Relying on the Anti-Terrorism and Effective\n\nDeath Penalty Act’s deferential standard of review for claims adjudicated on the\n\nmerits in state court, and the state court’s reasoning that Brewster had failed to cite\n\nany coercive or threatening language in “the supplemental charge,” the magistrate\n\njudge rejected the claim. The district court adopted the magistrate judge’s report\n\nand recommendation and dismissed Brewster’s § 2254 petition.\n\n Brewster appealed and we granted a certificate of appealability on three\n\nclaims, only two of which are relevant to our resolution of this case:\n\n Whether the state post-conviction court and the district court\n misconstrued Brewster’s claim — that his trial counsel w[ere]\n ineffective for failing to object or move for a mistrial when the trial\n court continued to instruct the jury to deliberate after the jury\n indicated on three occasions that it was unable to reach a unanimous\n verdict — as arguing that trial counsel w[ere] ineffective for failing to\n challenge the language of the Allen instruction as coercive.\n\n 11\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 12 of 33\n\n\n Whether Brewster’s trial counsel w[ere] ineffective for failing\n to object or move for a mistrial when the trial court repeatedly\n instructed the jury to continue deliberating, after the jury indicated on\n three occasions that it was unable to reach a unanimous verdict. 2\n\n III.\n\n We review de novo the district court’s denial of a habeas petition. McNair\n\nv. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Which means we owe no\n\ndeference to the district court’s decision about the state court’s decision.\n\n Ordinarily, in a § 2254 case a federal court’s decision is narrowly limited by\n\nAEDPA, which permits relief on claims adjudicated on the merits in state court\n\nonly if the state court’s decision “was contrary to, or involved an unreasonable\n\napplication of, clearly established Federal law, as determined by the Supreme\n\nCourt of the United States.” 28 U.S.C. § 2254(d)(1). AEDPA imposes a “highly\n\ndeferential standard for evaluating state-court rulings and demands that state-court\n\ndecisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773,\n\n130 S. Ct. 1855, 1862 (2010) (quotation marks and citation omitted). “If, however,\n\nno state court has adjudicated the merits of a claim that was properly presented,\n\n‘federal habeas review is not subject to the deferential standard that applies under\n\nAEDPA. . . . Instead, the claim is reviewed de novo.’” Reaves v. Sec’y, Fla.\n\n 2\n We also granted a COA on whether Brewster’s counsel were ineffective for failing to\nrequest a jury instruction on mistaken identification. We need not address that issue because the\nother two are dispositive.\n\n\n 12\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 13 of 33\n\n\nDep’t of Corr., 872 F.3d 1137, 1151 (11th Cir. 2017) (alteration in original)\n\n(quoting Cone v. Bell, 556 U.S. 449, 472, 129 S. Ct. 1769, 1784 (2009)).\n\n Neither the state post-conviction court nor the state appellate court ruled on\n\nthe actual claim that Brewster presented to them and is now presenting to us.\n\nInstead, they recast his claim as an attack on the language of one of the\n\nsupplemental instructions (without specifying which of the supplemental\n\ninstructions they were examining or how they selected that one). The state courts\n\nrejected the recast claim after finding that “a review of all of the language in the\n\nsupplemental charge fails to show that any of it was coercive or threatening.”\n\n That may be well and good, as far as it goes, but it does not go far enough to\n\ncover Brewster’s claim. His claim is that the total force and effect of the two trial\n\njudges instructing the jury over and over again that it must keep deliberating after\n\nthe jury declared over and over again that it was unable to reach a verdict, was\n\ncoercive. Brewster’s claim has never focused exclusively on the particular\n\nlanguage of any one of the several supplemental instructions. Instead, his claim\n\nhas always been based on his attorneys’ failure to object or move for a mistrial\n\ngiven the totality of the circumstances involving the jury’s inability to reach a\n\nunanimous verdict and the judges’ reaction to the deadlock. His is a macro claim,\n\nnot a micro one.\n\n\n\n\n 13\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 14 of 33\n\n\n Because the claim that we must decide is not a “claim that was adjudicated\n\non the merits in [the] State court proceedings,” 28 U.S.C. § 2254(d), we cannot\n\ndefer to the decisions of the state courts in this case. See Reaves, 872 F.3d at 1151.\n\n IV.\n\n To prevail on his ineffective assistance of counsel claim, Brewster must\n\n“demonstrate both that (1) ‘counsel’s performance was deficient,’ and (2) ‘the\n\ndeficient performance prejudiced the defense.’” United States v. Webb, 655 F.3d\n\n1238, 1258 (11th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687,\n\n104 S. Ct. 2052, 2064 (1984)). We can begin with either of those two components.\n\nStrickland, 466 U.S. at 697, 104 S. Ct. at 2069 (“Although we have discussed the\n\nperformance component of an ineffectiveness claim prior to the prejudice\n\ncomponent, there is no reason for a court deciding an ineffective assistance claim\n\nto approach the inquiry in the same order . . . . In particular, a court need not\n\ndetermine whether counsel’s performance was deficient before examining the\n\nprejudice suffered by the defendant as a result of the alleged deficiencies.”).\n\nWe’ll start with prejudice.\n\n A.\n\n “[A]ctual ineffectiveness claims alleging a deficiency in attorney\n\nperformance are subject to a general requirement that the defendant affirmatively\n\nprove prejudice.” Id. at 693, 104 S. Ct. at 2067. That means “[t]he defendant must\n\n 14\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 15 of 33\n\n\nshow that there is a reasonable probability that, but for counsel’s unprofessional\n\nerrors, the result of the proceeding would have been different. A reasonable\n\nprobability is a probability sufficient to undermine confidence in the outcome.” Id.\n\nat 694, 104 S. Ct. at 2068.\n\n In applying that standard to an attorney’s failure to object or move for a\n\nmistrial, we ask whether there is a reasonable probability of a different result if\n\ncounsel had objected or moved for a mistrial. That, of course, requires at a\n\nminimum an error meriting an objection or a mistrial.\n\n How, one might ask, can we ever know if a timely objection would have\n\nbeen sustained and made a difference in the result, or that the mistrial motion\n\nwould have been granted and thereby avoided the conviction that occurred without\n\nit? The Supreme Court in Strickland provided this guidance: “An assessment of\n\nthe likelihood of a result more favorable to the defendant must exclude the\n\npossibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. . . . The\n\nassessment of prejudice should proceed on the assumption that the decisionmaker\n\nis reasonably, conscientiously, and impartially applying the standards that govern\n\nthe decision. It should not depend on the idiosyncracies of the particular\n\ndecisionmaker.” Id. at 695, 104 S. Ct. at 2068. It doesn’t matter for prejudice\n\npurposes whether the judge at this defendant’s trial would have sustained an\n\nobjection; what counts is whether the judge would have been required to do so\n\n 15\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 16 of 33\n\n\nunder the applicable law and, if so, whether doing so would have resulted in a\n\nreasonable probability of a different result.3 The answer is yes, and yes.\n\n A defendant “being tried by a jury is entitled to the uncoerced verdict of that\n\nbody.” Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S. Ct. 546, 552 (1988).\n\nCoercion does not mean “simple pressure to agree.” Smith v. United States, 542\n\nA.2d 823, 824 (D.C. 1988). As one court explained, “such pressure is a natural\n\nfunction of sending twelve persons into a jury room to deliberate.” Id. Pressure\n\nbecomes coercive when the actions of the court result in “a minority of the\n\njurors . . . sacrific[ing] their conscientious scruples for the sake of reaching\n\nagreement.” Green v. United States, 309 F.2d 852, 854 (5th Cir. 1962). While a\n\n\n 3\n And to show prejudice it is usually, but not always, enough that applicable law would\nhave required the trial judge to grant a mistrial if one had been requested. The “but not always”\nqualifier is necessary because the reason that the mistrial would have been required must involve\nconstitutional concerns that go to the trial’s fundamental fairness and the reliability of the result.\nSo if, for example, a state law would have required a mistrial but that law does not touch on\nfundamental rights, cognizable prejudice has not occurred. See Hammond v. Hall, 586 F.3d\n1289, 1339–42 (11th Cir. 2009) (noting that defendant did not show prejudice because, even\nthough he was entitled to a mistrial under state law, that itself did not show that the proceeding\nproduced an unreliable result under Strickland because the state law was based on pragmatic\nconcerns, not constitutional ones).\n\n As the Supreme Court explained in Lockhart: “[A]n analysis focusing solely on mere\noutcome determination, without attention to whether the result of the proceeding was\nfundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely\nbecause the outcome would have been different but for counsel’s error may grant the defendant a\nwindfall to which the law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369–70,\n113 S. Ct. 838, 842–43 (1993); see Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998) (“In\norder to demonstrate prejudice, a petitioner must show not only that had counsel acted in a\ndifferent manner a new trial would have been granted, but also that, as a result of counsel’s\nincompetence, the trial was rendered fundamentally unfair or unreliable.”).\n\n\n 16\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 17 of 33\n\n\ntrial court may instruct a deadlocked jury to continue deliberating, it “must not\n\ncoerce any juror to give up an honest belief.” United States v. Davis, 779 F.3d\n\n1305, 1312 (11th Cir. 2015); see Showers v. State, 407 So. 2d 169, 171 (Ala. 1981)\n\n(“It is quite clear that . . . a trial judge may urge a jury to resume deliberations and\n\ncultivate a spirit of harmony so as to reach a verdict, as long as the court does not\n\nsuggest which way the verdict should be returned and no duress or coercion is\n\nused.”).\n\n Our task in a de novo review is to examine the totality of the circumstances\n\nto see if the court’s actions created a substantial risk that one or more jurors would\n\nbe coerced into abandoning their honest convictions. See United States v.\n\nWoodard, 531 F.3d 1352, 1364 (11th Cir. 2008). The relevant circumstances\n\ninclude: (1) the total length of deliberations; (2) the number of times the jury\n\nreported being deadlocked and was instructed to resume deliberations; (3) whether\n\nthe judge knew of the jury’s numerical split when he instructed the jury to continue\n\ndeliberating; (4) whether any of the instructions implied that the jurors were\n\nviolating their oaths or acting improperly by failing to reach a verdict; and (5) the\n\ntime between the final supplemental instruction and the jury’s verdict. See, e.g.,\n\nLowenfield, 484 U.S. at 240, 108 S. Ct. at 552 (time between instruction and\n\nverdict); Davis, 779 F.3d at 1312–13 (total length of deliberation and number of\n\ntimes a jury reports deadlock); United States v. Brokemond, 959 F.2d 206, 209–10\n\n 17\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 18 of 33\n\n\n(11th Cir. 1992) (judge’s knowledge of jury’s split); United States v. Fossler, 597\n\nF.2d 478, 485 (5th Cir. 1979) (number of times jury instructed to continue\n\ndeliberating); Kesley v. United States, 47 F.2d 453, 453–54 (5th Cir. 1931)\n\n(impugning jurors’ integrity by accusing them of neglecting their oaths by failing\n\nto reach a verdict).\n\n That list is not exhaustive, and the presence of some of the circumstances\n\ndoes not necessarily establish a substantial risk of coercion. It depends on the\n\ntotality of the circumstances, an assessment of the cumulative effect of everything\n\nthat went on. See Fossler, 597 F.2d at 485 (We “assess[] the impact of the judge’s\n\nstatements in light of his language and the facts and circumstances which formed\n\ntheir context.”).\n\n Starting down the list of relevant circumstances, we note that Brewster’s\n\njury deliberated a total of only eleven hours over two days, which is not an\n\ninordinate amount of time. The problem, or one of them, is that during those eleven\n\nhours of deliberations the jury reported being deadlocked five times — once on the\n\nfirst day and four times on the second.4\n\n And the firmness of the deadlock only increased as deliberations continued.\n\nThe jury’s first deadlock note reported that the split was 9 to 3 and “[e]veryone is\n\n 4\n We are not counting the first note the jury sent out, which simply asked what would\nhappen if one person voted not guilty.\n\n\n 18\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 19 of 33\n\n\nfirm in their decision.” When asked whether there was “any way this case will be\n\nresolved on a unanimous verdict,” the foreman answered “no.” The second\n\ndeadlock note reported that the jury “could not reach a unanimous decision” and\n\nthat one juror “had decided not guilty and no amount of time was going to sway\n\nthem.” The third one reported that “all jurors have decided firmly, eleven guilty,\n\none not guilty, no possibility of resolve.” The fourth one stated that the holdout\n\njuror was “unwilling to discuss the case.” And the fifth one informed the judge\n\nthat the holdout juror was still refusing to discuss the case and was doing\n\ncrossword puzzles instead.\n\n After each of the first four deadlock reports, the judge gave the jurors\n\ninstructions of varying formality requiring them to continue deliberating and try to\n\nreach a unanimous verdict. After the fifth and final deadlock report, the judge’s\n\naction in having all of the reading materials taken out of the jury room sent a\n\nstrong message to the jury to get back to deliberating. One or two, or even three,\n\ninstructions requiring a deadlocked jury to keep on deliberating might not be a\n\nproblem, depending on the surrounding circumstances. But five instructions aimed\n\nat breaking a deadlock is a lot (especially, as we will discuss, when the judge knew\n\nexactly how the jury was divided).\n\n While “[w]e have never adopted a per se rule against successive Allen\n\ncharges,” Davis, 779 F.3d at 1312, the more times a jury tells the court that it is\n\n 19\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 20 of 33\n\n\ndeadlocked, and the more times the court responds by instructing the jury to\n\ncontinue deliberating, the greater the risk of coercion. In United States v. Fossler,\n\nfor instance, we concluded that the use of two Allen charges at the defendant’s trial\n\ncoerced a verdict where the jury “indicated at three separate points in time, over a\n\nthree day period, that it could not reach a decision,” and “[o]nly one hour after the\n\nsecond [Allen] charge was sent to the jury, a guilty verdict was returned.” 597\n\nF.2d at 485.\n\n The circumstances in this case are more extreme. The jurors faced the\n\ncumulative effect of a formal Allen charge, three additional instructions from the\n\ncourt to continue deliberating after the judge knew that there was only one holdout\n\nleft, and the removal of all reading material from the jury room in direct response\n\nto a report that the holdout juror was using that material to keep holding out.\n\n Pressure on jurors, especially on holdout jurors, is increased when the\n\ninstructions to keep trying to reach unanimity come from a judge who knows how\n\nsplit the jury is and in which direction. That is why the Supreme Court has\n\nexercised its supervisory authority to prohibit federal judges from inquiring how\n\ndeadlocked juries are split. The Court has explained that inquiring about the\n\nspecifics of the split “serves no useful purpose,” tends to be coercive, and “can\n\nrarely be resorted to without bringing to bear . . . an improper influence upon the\n\njury.” Brasfield v. United States, 272 U.S. 448, 450, 47 S. Ct. 135, 135–36 (1926).\n\n 20\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 21 of 33\n\n\nBecause it is an exercise of the Court’s supervisory authority over the lower federal\n\ncourts, the Brasfield rule does not apply to state courts (or to state prisoners\n\nseeking habeas relief in federal court). See 28 U.S.C. § 2241(c)(3) (“The writ of\n\nhabeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in\n\nviolation of the Constitution or laws or treaties of the United States.”); Lowenfield,\n\n484 U.S. at 239–40, 108 S. Ct. at 552 (the Brasfield rule applies only to federal\n\ncourts); Showers, 407 So. 2d at 171 (declining to adopt the Brasfield rule for use in\n\nAlabama state courts).\n\n Still, the Supreme Court’s prohibiting federal judges from inquiring into the\n\nspecifics of a jury split underscores the problem with the judge having that\n\nknowledge. Lowenfield, 484 U.S. at 240, 108 S. Ct. at 552. The problem exists\n\nwhether the judge asked for the information or the jury disclosed it without any\n\nprompting. If the jury is aware that the court knows it is divided in favor of\n\nconvicting the defendant, and the court repeatedly instructs the jury to continue\n\ndeliberating, the jurors in the minority may feel pressured to join the majority in\n\norder to placate the judge. See Brasfield, 272 U.S. at 450, 47 S. Ct. at 135–36.\n\nThat pressure only increases when, as here, the judge is told that the jury is divided\n\n9 to 3 for conviction, and then 11 to 1 for conviction, and later that it is still hung at\n\n11 to 1 for conviction.\n\n\n\n\n 21\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 22 of 33\n\n\n The judge knew — and the jurors knew that the judge knew — there was but\n\na single holdout standing between a mistrial and a guilty verdict. Everything that\n\nhappened after the jury sent the second of five deadlock notes with the 11 to 1\n\nbreakdown has to be understood in that context. It was as if the judge were saying:\n\n“I know [there is one] of you [who is] holding up a verdict; you should stop being\n\nso stubborn and fall in line.” Smith, 542 A.2d at 825. And that is what the holdout\n\njuror finally did. After three more deadlock notes and several additional\n\ninstructions to keep deliberating, she finally fell in line and voted to convict.5\n\n We have also held, for obvious reasons, that “comments, not upon the\n\nevidence, but reflecting on the jurors, are not permissible.” Kesley, 47 F.2d at 454.\n\nIn Kesley, the judge admonished the jury that “it is apparent to the court that some\n\nof you have forgotten . . . your oaths as jurors. It does not seem to me that there is\n\nvery much doubt as far as the facts are concerned.” Id. at 453. We reversed the\n\nresulting conviction and explained that “[n]o juror should be induced to agree to a\n\n\n\n\n 5\n Disclosure of the specifics of a jury’s division by itself would not necessarily be\ngrounds for a mistrial, even in federal court. See United States v. Norton, 867 F.2d 1354, 1365\n(11th Cir. 1989) (“[U]nsolicited disclosure of the jury’s division by a juror is not by itself a\nground for a mistrial.”); Sanders v. United States, 415 F.2d 621, 631–32 (5th Cir. 1969) (“The\nfact that the jury contrary to the instructions of the court volunteered to the court the extent of\ntheir division and which way they stood is no reason why the court should be precluded from\ngiving an otherwise proper Allen charge.”). But disclosure that a majority of the jurors favor\nconviction can act as a multiplier of the coercion arising from other circumstances.\n\n\n 22\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 23 of 33\n\n\nverdict by a fear that a failure so to agree will be regarded by the public as\n\nreflecting upon either his intelligence, or his integrity.” Id.\n\n The trial judge may have stepped over that line here and committed Kesley\n\nerror in the lengthy instruction that he gave in responding to the jury’s fourth\n\ndeadlock note, which informed him that the lone holdout juror had quit discussing\n\nthe case with the other jurors. In that instruction the judge used the word oath nine\n\ntimes, the last time being when he concluded his charge with this statement:\n\n“[Y]ou took an oath. I take mine seriously. I hope you do the same.” Though the\n\njudge addressed his admonitions to the entire jury, the lone holdout must have felt\n\nas though they were aimed at her. It was her vote not to convict, after all, that had\n\nled to the lecture to begin with. And the message that was embedded in the charge\n\nto take the oath seriously was that doing so would lead to a unanimous verdict.\n\n The final circumstance contributing to our conclusion that the verdict was\n\ncoerced is how quickly the jury unanimously agreed on a verdict after the court’s\n\nlast instruction and action. A verdict of conviction “bounced out” of the jury room\n\nonly 34 minutes after the last instruction from the judge (and only 18 minutes after\n\nthe holdout juror’s reading material was taken away). See Lowenfield, 484 U.S. at\n\n240, 108 S. Ct. at 552 (“We are mindful that the jury returned with its verdict soon\n\nafter receiving the supplemental instruction, and that this suggests the possibility of\n\ncoercion.”); Woodard, 531 F.3d at 1364 (“In assessing whether the charge was\n\n 23\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 24 of 33\n\n\ncoercive, we consider the language of the charge and the totality of the\n\ncircumstances under which it was delivered, e.g., . . . the amount of time between\n\nthe delivery of the charge and the return of the jury’s verdict.”); Fossler, 597 F.2d\n\nat 485 (finding coercion where, among other things, “[o]nly one hour after the\n\nsecond Allen charge was sent to the jury, a guilty verdict was returned”); cf.\n\nNorton, 867 F.2d at 1364–66 (stating that the jury was not coerced because it\n\n“deliberated some four hours after the trial court’s supplementary instruction, a\n\ntime period not suggestive of a coercive or pressure-filled atmosphere”).\n\n To be sure, the holdout juror was not threatened with branding or\n\nexsanguination, and the jury was not hauled around in a cart. What happened at\n\nBrewster’s trial would have passed muster in seventeenth-century England, but in\n\ntwenty-first century Alabama it does not. The coercive circumstances that led to\n\nthe verdict undermined the fundamental fairness of the trial and the reliability of\n\nthe verdict. Those circumstances entitled Brewster to a mistrial under Alabama\n\nlaw, and also under federal law. See Orr v. State, 111 So. 2d 639, 640 (Ala. 1959);\n\nJones v. State, 217 So. 3d 947, 952 (Ala. Crim. App. 2016); Gidley v. State, 95 So.\n\n330, 330–31 (Ala. Ct. App. 1923); see also United States v. Amaya, 509 F.2d 8, 9–\n\n11 (5th Cir. 1975). The failure of Brewster’s counsel to object and to move for a\n\nmistrial, as the coercive circumstances piled up, was prejudicial.\n\n\n\n\n 24\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 25 of 33\n\n\n B.\n\n We turn now to whether Brewster’s trial counsel’s failure to object and\n\nmove for a mistrial was deficient performance for Strickland purposes. The\n\nstandard for effective assistance of counsel is reasonableness, not perfection.\n\nStrickland, 466 U.S. at 687, 104 S. Ct. at 2064 (“[T]he proper standard for attorney\n\nperformance is that of reasonably effective assistance.”); Harrington v. Richter,\n\n562 U.S. 86, 110, 131 S. Ct. 770, 791 (2011) (“Strickland does not guarantee\n\nperfect representation, only a reasonably competent attorney.”) (quotation marks\n\nomitted); Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 6 (2003) (per curiam)\n\n(“The Sixth Amendment guarantees reasonable competence, not perfect advocacy\n\njudged with the benefit of hindsight.”). As we have pointed out, “[t]he\n\nreasonableness of a counsel’s performance is an objective inquiry.” Chandler v.\n\nUnited States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc). “And because\n\ncounsel’s conduct is presumed reasonable, for a petitioner to show that the conduct\n\nwas unreasonable, a petitioner must establish that no competent counsel would\n\nhave taken the action that his counsel did take.” Id.\n\n Defense counsel, of course, need not make meritless motions or lodge futile\n\nobjections. Meders v. Warden, Ga. Diagnostic Prison, 900 F.3d 1330, 1349 (11th\n\nCir. 2018) (“It is not ineffective assistance of counsel to fail to make an objection\n\nthat is not due to be sustained.”); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297\n\n 25\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 26 of 33\n\n\n(11th Cir. 2017) (“[A]n attorney will not be held to have performed deficiently for\n\nfailing to perform a futile act, one that would not have gotten his client any\n\nrelief.”). That is not a consideration here because, as our discussion of the\n\nprejudice component demonstrates, an objection or motion for mistrial would not\n\nhave been futile or lacking in merit. We need not decide how early in the chain of\n\ncoercive circumstances that counsel’s failures to object or move for a mistrial\n\nbecame bad enough to be deficient performance for ineffective assistance\n\npurposes. The later failures suffice. By the time the jury had declared itself\n\ndeadlocked for the fifth time and the judge had given his fourth instruction for it to\n\ncontinue deliberating, which included language implicitly criticizing the lone\n\nholdout for not giving in, any reasonable attorney would have objected and moved\n\nfor a mistrial.\n\n It is not ineffective assistance for counsel to fail to make an objection or\n\nmotion that depends on the future development of the law. See United States v.\n\nArdley, 273 F.3d 991, 993 (11th Cir. 2001); Spaziano v. Singletary, 36 F.3d 1028,\n\n1039 (11th Cir. 1994). But the law at the time of Brewster’s trial made clear that\n\nthe risk of a coerced verdict was unacceptable. There was no need for\n\nclairvoyance.\n\n We recognize that “defense counsel, in defending their client’s interests,\n\nneed not urge every conceivable objection the law would provide.” Hubbard v.\n\n 26\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 27 of 33\n\n\nHaley, 317 F.3d 1245, 1259 (11th Cir. 2003). The failure to make every valid\n\nobjection or pursue every motion that has merit will not necessarily take counsel’s\n\nperformance “outside the wide range of professionally competent assistance,”\n\nwhich is the scope of permissible performance. See Strickland, 466 U.S. at 690,\n\n104 S. Ct. at 2066. But the fundamental error that Brewster’s counsel let go was\n\none that any reasonable counsel would not have overlooked or thought unworthy\n\nof pursuing. It was obvious error that unfolded over a period of two days in a\n\ncourse of action that grew progressively worse. Counsel had plenty of time to\n\nrecognize the error and react.\n\n Of course, counsel can for reasonable strategic reasons refrain from making\n\na valid objection or moving for relief their client is entitled to if there are\n\nreasonable strategic reasons for not objecting or moving. See Walls v. Buss, 658\n\nF.3d 1274, 1279 (11th Cir. 2011) (“[W]e have recognized that it can be reasonable\n\nto let incriminating evidence come to the jury’s attention.”); see also Richter, 562\n\nU.S. at 109, 131 S. Ct. at 790 (“There is a strong presumption that counsel’s\n\nattention to certain issues to the exclusion of others reflects trial tactics rather than\n\nsheer neglect.”) (quotation marks omitted); Strickland, 466 U.S. at 690, 104 S. Ct.\n\nat 2066 (explaining that strategic choices between plausible options are virtually\n\nunchallengeable); Chandler, 218 F.3d at 1314 (“[A] court must not second-guess\n\ncounsel’s strategy.”). The standard, again, is whether any competent counsel\n\n 27\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 28 of 33\n\n\nwould have done as defense counsel did and taken, or failed to take, the course of\n\naction that counsel took or failed to take. Chandler, 218 F.3d at 1315. The answer\n\nto that question is not difficult here.\n\n Even before the second judge targeted the lone holdout by having the bailiff\n\nconfiscate her crossword puzzles, any reasonable attorney would have objected or\n\nmoved for a mistrial. By that point there had already been five declarations of\n\ndeadlock by the jury; four written and oral instructions from two different judges to\n\ncontinue deliberating; the implication by the second judge that by not joining the\n\nothers the holdout juror was violating her oath; and the periodic disclosures of the\n\njury’s numerical breakdown in favor of convicting Brewster. Things kept getting\n\nworse for the defense. It doesn’t take “the pricking of my thumbs” to know that\n\n“something wicked this way comes” for a defendant when a jury goes from 9 to 3\n\nfor conviction to 11 to 1 for conviction and the lone holdout faces the coercive\n\ncircumstances that this one did. Cf. William Shakespeare, The Tragedy of\n\nMacbeth, act 4, sc. 1.\n\n As the Second Circuit observed: “In deciding whether to move for a mistrial\n\nwhen a jury reports deadlock, a defendant acting completely rationally would\n\ncompare the likely consequences of allowing the jury to deliberate longer with the\n\nlikely consequences of obtaining a mistrial.” Lane v. Lord, 815 F.2d 876, 879 (2d\n\nCir. 1987). Here the overwhelmingly likely consequences of the attorneys doing\n\n 28\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 29 of 33\n\n\nnothing was conviction and the resulting sentence of life without parole, while\n\nmoving for the mistrial to which their client was entitled would have gotten him a\n\nnew trial.\n\n It is no answer to invoke some of our general language, as the State does,\n\nthat “the decision to refrain from asking the court for a mistrial is a tactical\n\ndecision entrusted to defense counsel.” United States v. Burke, 257 F.3d 1321,\n\n1324 (11th Cir. 2001). Tactical decisions need rational reasons behind them. For\n\nexample, it might be reasonable for an attorney to refrain from objecting or seeking\n\na mistrial early on in the process, or when only one or two signs of coercion are\n\npresent, or when it looks like the deadlocked jury may be divided in favor of\n\nacquittal. See, e.g., Cannon v. State, 806 S.E.2d 584, 589 (Ga. 2017) (defense\n\nattorney sought Allen charge before seeking mistrial because, “in his experience,\n\nrequesting the Allen charge hastens jury deadlock and increases the chance the trial\n\ncourt will grant a mistrial”).\n\n One of our decisions provides a concrete example of strategic reasons for\n\nnot requesting a mistrial. The Hammond case involved an attorney who did not\n\nmove for a mistrial to which the defendant was entitled under state law based on a\n\nprosecutor’s inappropriate comment during the sentencing phase of a capital case.\n\nSee Hammond, 586 F.3d at 1332. We held that the attorney did not perform\n\n\n\n\n 29\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 30 of 33\n\n\ndeficiently even though the defendant would have been given a mistrial of the\n\nsentencing stage if he had requested one. Id. at 1335.\n\n We explained in Hammond that a reasonable attorney could have been leery\n\nof a mistrial for several reasons, any one of which would have been enough to\n\nshow that the representation was not deficient. Id. at 1333. First, the defendant in\n\nthat case was a black man accused of murdering a white woman, and his attorney\n\nhad managed after five days of extensive voir dire to have a jury selected that\n\nconsisted of eight black jurors and four white jurors. Id. We noted that “[a]n\n\nattorney reasonably could have considered the jury composition favorable and not\n\nwanted to risk losing it in a do-over.” Id. Second, if a mistrial had been declared,\n\nthe original jury (which had found Hammond guilty) would have been excused and\n\na new one empaneled to determine only the sentence. The new jury would “be\n\ninstructed that Hammond had been found guilty and then would be immersed in\n\nthe horrible details of the crimes he had committed.” Id. We concluded that a\n\nreasonable attorney might want to avoid that prospect in favor of keeping the\n\noriginal jury because it might have some residual doubts from the guilt phase of\n\nthe trial. Id. at 1333–34.\n\n Third, we also found that “an attorney could have reasonably believed that a\n\nnew sentence hearing months in the future would open up for reconsideration some\n\nevidentiary rulings that had been made in Hammond’s favor.” Id. at 1334.\n\n 30\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 31 of 33\n\n\nFinally, we considered that a reasonable attorney could have relied on the\n\npresumption that the jury would disregard the prosecutor’s improper remark when\n\nit was told to do so by the court and that this was a better option than seeking a\n\nmistrial. Id. “In sum,” we concluded, “not asking for a mistrial was objectively\n\nwithin the wide range of professionally competent assistance.” Id. at 1335\n\n(quotation marks omitted).\n\n In Brewster’s case “[t]here is no indication in the record that [counsel’s]\n\nfailure even to raise an objection [or move for a mistrial] . . . was a product of any\n\ntactical forethought and we can only speculate as to the reasons for [their] silence.”\n\nJackson v. Herring, 42 F.3d 1350, 1360 (11th Cir. 1995) (emphasis omitted).\n\nPerhaps they thought that any objection would be meritless. If so, they were really\n\nwrong. Or perhaps they didn’t see the obvious signs of coercion or didn’t know\n\nthat a coerced verdict was unlawful. We have recognized, after all, that simple\n\nignorance of the law is not always enough for counsel to be ineffective. See\n\nHarich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1998) (en banc). But that is no\n\nanswer either. Trial counsel’s ignorance of a point of law “that is fundamental to\n\n[their] case combined with [their] failure to perform basic research on that point is\n\na quintessential example of unreasonable performance under Strickland.” Hinton\n\nv. Alabama, 571 U.S. 263, 274, 134 S. Ct. 1081, 1089 (2014); see Hollis v. Davis,\n\n941 F.2d 1471, 1478 (11th Cir. 1991) (“If [trial counsel] did not assert this right\n\n 31\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 32 of 33\n\n\nbecause [they] w[ere] unaware of it, [their] representation was not within the range\n\nof competence demanded of attorneys in criminal cases.”) (quotation marks\n\nomitted). Brewster’s attorneys had plenty of time during the jury’s deliberations\n\nover two days to research the law if they were unfamiliar with it.\n\n And it ultimately does not matter if trial counsel subjectively thought that\n\nthe ongoing forced deliberations would somehow turn out well for Brewster. As\n\nwe explained in Hammond, counsel’s tactical decision must be one that an attorney\n\nreasonably could have made. See Hammond, 586 F.3d at 1332 (“Under the law of\n\nthis circuit the question is not why [the defendant’s] counsel failed to move for a\n\nmistrial . . . but whether a competent attorney reasonably could have decided not to\n\nmove for one.”). As the circumstances got worse, any reasonable attorney would\n\nhave objected or moved for a mistrial.\n\n It doesn’t take a Clarence Darrow to realize that if a jury has gone from 9 to\n\n3 in favor of conviction to 11 to 1 for it, and is complaining about the lone\n\nholdout’s behavior and her refusal to go along with the others, that jury is not\n\nheaded toward an acquittal. See Lane, 815 F.2d at 879. Unlike in Hammond, there\n\nwas no conceivable reason, no reasonable strategy, for sitting silent and seeing\n\nhow things would turn out. The cards had already been dealt, face up, and it was\n\nobvious who had the losing hand. Brewster did not receive the “reasonably\n\n\n\n\n 32\n\f Case: 16-16350 Date Filed: 01/22/2019 Page: 33 of 33\n\n\neffective assistance” of counsel that he was entitled to under Strickland. 466 U.S.\n\nat 687, 104 S. Ct. at 2064.\n\n V.\n\n The judgment denying the petition for a writ of habeas corpus is\n\nREVERSED.\n\n\n\n\n 33\n[END_CASE]",
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4,584,866 | Maria Belen PEREZ-ZENTENO, Gerardo Melchor-Perez, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent. | Maria Belen Perez-Zenteno v. U.S. Attorney General | 2019-01-25 | 17-13201 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Newsom, Ebel", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 17-13201 Date Filed: 01/25/2019 Page: 1 of 22\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13201\n ________________________\n\n Agency No. A088-711-937\n\n\n\nMARIA BELEN PEREZ-ZENTENO,\nGERARDO MELCHOR-PEREZ,\n\n Petitioners,\n\nversus\n\nU.S. ATTORNEY GENERAL,\n\n Respondent.\n\n ________________________\n\n Petition for Review of a Decision of the\n Board of Immigration Appeals\n ________________________\n\n (January 25, 2019)\n\nBefore MARCUS, NEWSOM and EBEL, ∗ Circuit Judges.\n\nMARCUS, Circuit Judge:\n\n\n\n∗ Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by\ndesignation.\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 2 of 22\n\n\n The central question raised in this immigration appeal is whether the\n\nPetitioners are entitled to asylum on account of being members of a “particular\n\nsocial group” as defined in the Immigration and Nationality Act (INA). Maria\n\nPerez-Zenteno (“Perez-Zenteno”) and her son (Gerardo Melchor Perez) seek\n\nreview of a Board of Immigration Appeals (BIA) decision denying their requests\n\nfor asylum, withholding of removal, and humanitarian asylum. They claim\n\nentitlement to asylum because they were persecuted in Mexico on account of\n\nmembership in a “particular social group,” which they defined as all “Mexican\n\ncitizens targeted by criminal groups because they have been in the United States\n\nand they have families in the United States.” The Immigration Judge (IJ) denied\n\nrelief because, although Perez-Zenteno was beaten and brutally raped and her\n\ndaughter kidnapped, she failed to prove that she was persecuted on account of\n\nmembership in a statutorily protected group. The social group offered was neither\n\nsufficiently particular nor socially distinct. What’s more, the IJ determined Perez-\n\nZenteno failed to establish any nexus between the persecution she suffered and the\n\nstatutory grounds asserted. The BIA agreed. Because we too agree that Perez-\n\nZenteno has failed to establish membership in a particular social group, as defined\n\nby Congress, and because no nexus has been shown, we hold that the petition must\n\nbe denied.\n\n\n\n\n 2\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 3 of 22\n\n\n I.\n\n Maria Perez-Zenteno is a native and citizen of Mexico, from the village of\n\nTzitzio in the state of Michoacán. In 2015, she applied for admission to the United\n\nStates. On November 10, 2015, the Department of Homeland Security\n\ncommenced removal proceedings against Perez-Zenteno and her son by filing\n\nNotices to Appear, charging them with inadmissibility under 8 U.S.C.\n\n§ 1182(a)(7)(A)(i)(I) because they lacked valid entry documents. The Petitioners\n\nappeared before an IJ, represented by counsel. They admitted to the allegations\n\nand conceded the inadmissibility charges. However, Perez-Zenteno sought\n\nasylum, withholding of removal, and relief under the Convention Against Torture\n\non the ground that she suffered past persecution at the hands of Mexican criminals\n\nbased on her membership in a particular social group: “Mexican citizens targeted\n\nby criminal groups because they have been in the United States and they have\n\nfamilies in the United States.”1\n\n\n\n\n1\n Both the BIA and the Immigration Judge at various points defined the proffered group as\n“Mexican citizens targeted by criminal groups because they have been in the United States and\nhave families in the United States, and who are unable to get protection from their government.”\nThis additional language simply duplicates the statutory language defining a refugee as “any\nperson who is outside any country of such person’s nationality . . . and who is unable or unwilling\nto return to, and is unable or unwilling to avail himself or herself of the protection of, that country\nbecause of persecution or a well-founded fear of persecution on account of . . . membership in a\nparticular social group.” 8 U.S.C. § 1101(a)(42)(A) (emphasis added). Thus, we read the proposed\nsocial group as being “Mexican citizens targeted by criminal groups because they have been in the\nUnited States and have families in the United States.”\n 3\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 4 of 22\n\n\n At an evidentiary hearing conducted by the IJ, Perez-Zenteno claimed that\n\nshe first came to the United States in 1995 as an eleven-year-old child after her\n\nfather was killed in Mexico. She stayed for two years and returned to Mexico\n\nfearing sexual abuse at the hands of her uncle in the United States. In 2001, she\n\nreturned to the United States with her husband and young son. They had three\n\nmore children, all born in Florida, before Perez-Zenteno and her children returned\n\nto Mexico in 2007 because her mother became ill. The only family Perez-Zenteno\n\nspecifically identified as being in the United States after she left was her husband,\n\nwho continued working at a construction job in Florida.\n\n Perez-Zenteno further testified that in April 2013, while she and her children\n\nwere living in Mexico, her five-year-old daughter was kidnapped from a\n\nsupermarket. The kidnappers demanded a ransom of 150,000 pesos. When Perez-\n\nZenteno delivered the ransom, she was abducted, driven outside of town, beaten,\n\nand raped. Perez-Zenteno also was threatened, warned not to tell anyone of her\n\nattack, and released, to find her daughter returned to her sister’s home unharmed.\n\nA neighbor then offered to provide protection for 1,000 pesos per month, which\n\nPerez-Zenteno paid for approximately a year until she became suspicious that her\n\nneighbor was involved in the kidnapping plot. Perez-Zenteno eventually called the\n\npolice, who discovered a kidnapped man in her neighbor’s home, and arrested the\n\nneighbor in October 2014. In March 2015, after receiving a phone call threatening\n\n\n 4\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 5 of 22\n\n\nher for being a “snitch,” Perez-Zenteno fled along with her children to the United\n\nStates.\n\n The IJ denied the Petitioners’ application, concluding that Perez-Zenteno\n\nhad failed to establish she was the victim of past persecution on account of any\n\nstatutory ground for asylum, including membership in a cognizable social group.\n\nThe IJ likewise concluded that Perez-Zenteno had not established a well-founded\n\nfear of future persecution on account of any statutorily protected ground, including\n\nmembership in a particular social group. Although the Immigration Judge found\n\nPerez-Zenteno credible as to her rape and fear of returning to Mexico, the IJ\n\nconcluded that Perez-Zenteno’s proposed social group -- “Mexican citizens\n\ntargeted by criminal groups because they have been in the United States and they\n\nhave families in the United States” -- was not cognizable under the INA. The IJ\n\nfound that although the group might be based on an immutable characteristic --\n\nafter all, one cannot change the past experience of having been in the United States\n\nor having family in the United States -- the group was defined with insufficient\n\nparticularity and was not socially distinct. Consequently, the IJ denied Perez-\n\nZenteno’s application for asylum and withholding of removal.\n\n Perez-Zenteno appealed to the BIA. In a two-page, non-precedential\n\ndecision, a single member of the BIA affirmed the IJ’s decision. The BIA agreed\n\nthat Perez-Zenteno had failed to establish that she was targeted on account of\n\n\n 5\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 6 of 22\n\n\nmembership in a particular social group. The BIA said that “even if the factors of\n\nimmutability and particularity were met, the respondents did not establish that their\n\nclaimed group is viewed as socially distinct within Mexican society” and that “the\n\ngroup is impermissibly circularly defined by the harm directed at its members.” In\n\nsupport of its determination, the BIA cited to its opinion in Matter of A–M–E– &\n\nJ–G–U–, 24 I. & N. Dec. 69 (BIA 2007), a precedential panel decision that had\n\nfound that wealthy Guatemalans did not constitute a cognizable social group. The\n\nBIA also concluded that the IJ’s factual finding that Perez-Zenteno failed to\n\nestablish a nexus between her persecution and a statutorily protected ground was\n\nnot clearly erroneous.\n\n Perez-Zenteno seeks review in our Court of the denial of asylum,\n\nwithholding of removal, and humanitarian asylum.\n\n II.\n\n We review the BIA’s decision as the final judgment, unless the BIA\n\nexpressly adopted the IJ’s opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d\n\n1341, 1350 (11th Cir. 2009). When the BIA agrees with the IJ’s reasoning, we\n\nreview the decisions of both the BIA and the IJ. Id. Here, because the BIA agreed\n\nwith the findings of the IJ and added its own observations, we review both.\n\nMoreover, we review all legal conclusions de novo, Al Najjar v. Ashcroft, 257\n\nF.3d 1262, 1284 (11th Cir. 2001), including whether a group proffered by an\n\n\n 6\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 7 of 22\n\n\nasylum applicant constitutes a particular social group under the INA, Malu v. U.S.\n\nAtt’y Gen., 764 F.3d 1282, 1286, 1290 (11th Cir. 2014).\n\n As we have previously held, this de novo review is further informed by the\n\nprinciples of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources\n\nDefense Council, Inc., 467 U.S. 837 (1984). See Castillo-Arias v. U.S. Att’y Gen.,\n\n446 F.3d 1190, 1195 (11th Cir. 2006). Under Chevron, “[w]hen a court reviews an\n\nagency’s construction of the statute which it administers . . . [and] the statute is\n\nsilent or ambiguous with respect to the specific issue, the question for the court is\n\nwhether the agency’s answer is based on a permissible construction of the statute.”\n\nChevron, 467 U.S. at 842–43. If so, “a court may not substitute its own\n\nconstruction of a statutory provision for a reasonable interpretation made by the\n\nadministrator or agency.” Id. at 844.\n\n We also review findings of fact under the substantial-evidence test, which\n\nrequires us to “view the record evidence in the light most favorable to the agency’s\n\ndecision and draw all reasonable inferences in favor of that decision.” Adefemi v.\n\nAshcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Accordingly, we must\n\naffirm the BIA’s decision “if it is supported by reasonable, substantial, and\n\nprobative evidence on the record considered as a whole.” D-Muhumed v. U.S.\n\nAtt’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted). “To reverse\n\nthe . . . fact findings, [the Court] must find that the record not only supports\n\n\n 7\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 8 of 22\n\n\nreversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th\n\nCir. 2003). “That is, even if the evidence could support multiple conclusions, we\n\nmust affirm the agency’s decision unless there is no reasonable basis for that\n\ndecision.” Adefemi, 386 F.3d at 1029.\n\n III.\n\n Under the Immigration and Nationality Act, the “Secretary of Homeland\n\nSecurity or the Attorney General may grant asylum to an alien . . . if the Secretary\n\nof Homeland Security or the Attorney General determines that such alien is a\n\nrefugee within the meaning of section 1101(a)(42)(A).” 8 U.S.C. § 1158(b)(1).\n\nThe INA, in turn, defines “a refugee” as “any person who is outside any country of\n\nsuch person’s nationality or, in the case of a person having no nationality, is\n\noutside any country in which such person last habitually resided, and who is unable\n\nor unwilling to return to, and is unable or unwilling to avail himself or herself of\n\nthe protection of, that country because of persecution or a well-founded fear of\n\npersecution on account of race, religion, nationality, membership in a particular\n\nsocial group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (emphasis added).\n\nPlainly, an asylum applicant bears the burden of establishing “refugee” status, 8\n\nC.F.R. § 208.13(a), so she must present “specific, credible evidence”\n\ndemonstrating either past persecution on account of a statutorily protected ground,\n\nor a well-founded fear of future persecution on account of a statutorily protected\n\n\n 8\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 9 of 22\n\n\nground, 8 C.F.R. § 208.13(b). See also Al Najjar, 257 F.3d at 1287. And to satisfy\n\nthe “on account of a statutorily protected ground” requirement, the applicant must\n\nprove that the protected ground “was or will be at least one central reason for\n\npersecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).\n\n A.\n\n Here, the IJ and the BIA agreed that Perez-Zenteno failed to demonstrate\n\nthat “Mexican citizens targeted by criminal groups because they have been in the\n\nUnited States and they have families in the United States” were viewed as a\n\nsocially distinct group in Mexico and that the group was not defined with sufficient\n\nparticularity.\n\n The antecedent question we confront is the level of deference to afford the\n\nBIA’s determination. Our law is clear that we defer to reasonable interpretations\n\nof the ambiguous statutory phrase “particular social group” set forth in\n\nprecedential, three-member BIA decisions, including Matter of Acosta, 19 I. & N.\n\nDec. 211 (BIA 1985) and its progeny. See Gonzalez v. U.S. Att’y Gen., 820 F.3d\n\n399, 404 (11th Cir. 2016) (“We have previously held that the BIA’s interpretation\n\nof the phrase ‘particular social group’ in 8 U.S.C. § 1231(b)(3)(A) is entitled to\n\nChevron deference because the INA does not define the phrase and it is\n\nambiguous.”) (citing Castillo-Arias, 446 F.3d at 1196); see also I.N.S. v. Aguirre-\n\nAguirre, 526 U.S. 415, 424–25 (1999) (noting that “[i]t is clear that principles of\n\n\n 9\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 10 of 22\n\n\nChevron deference are applicable to [the INA] statutory scheme” and that “the BIA\n\nshould be accorded Chevron deference as it gives ambiguous statutory terms\n\n‘concrete meaning through a process of case-by-case adjudication’”) (quoting\n\nI.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448–49 (1987)).\n\n But the general principle that the BIA is entitled to deference in interpreting\n\nthe meaning of “a particular social group” is not the end of the story. Two years\n\nafter Castillo-Arias, a panel of this Court adopted the view expressed by the\n\nSecond and Ninth Circuits that single-member, non-precedential BIA decisions --\n\nlike the one before us now -- may not be entitled to any deference. Quinchia v.\n\nU.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). That is, while the Acosta\n\nframework is entitled to deference, a single-member application of that framework\n\nto a particular case may not be. The Second and Ninth Circuits had narrowed\n\nChevron deference because the Supreme Court had done so in United States v.\n\nMead Corp., 533 U.S. 218 (2001). See Garcia-Quintero v. Gonzales, 455 F.3d\n\n1006 (9th Cir. 2006); Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007). In Garcia-\n\nQuintero, the Ninth Circuit cited to Mead and held “that Chevron deference applies\n\nonly ‘when it appears that Congress delegated authority to the agency generally to\n\nmake rules carrying the force of law, and that the agency interpretation claiming\n\ndeference was promulgated in the exercise of that authority.’” Id. at 1012 (quoting\n\nMead, 533 U.S. at 226–27) (emphasis added in original); see also id. (noting that\n\n\n 10\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 11 of 22\n\n\n“[i]n light of Mead, the ‘essential factor’ in determining whether an agency action\n\nwarrants Chevron deference is its precedential value” (quoting Miranda Alvarado\n\nv. Gonzales, 449 F.3d 915, 922 (9th Cir. 2006))). Relying on BIA regulations and\n\nthe BIA’s Practice Manual, the Ninth Circuit found that only three-member panel,\n\npublished BIA decisions may serve as precedents, and thus only those decisions\n\nare interpretations promulgated in the exercise of its delegated authority. Id. at\n\n1012–13 (citing 8 C.F.R. § 1003.1; BIA Prac. Man., Ch. 1.3(a)(i) (rev.\n\n6/15/2014)2).\n\n In Rotimi, the Second Circuit similarly applied Mead and declined to afford\n\nChevron deference to a single-member BIA decision interpreting the phrase\n\n“lawfully resided continually” for purposes of a § 212(h) waiver. Rotimi, 473 F.3d\n\nat 57 (“Because there is no indication that the BIA’s nonprecedential single-\n\nmember decision was ‘promulgated’ under its authority to ‘make rules carrying the\n\nforce of law,’ we do not accord it Chevron deference.”) (citation omitted).\n\n It is not at all clear that we are obliged to afford deference directly to the\n\nsingle-member decision in this case. As a panel of this Court recently observed,\n\npursuant to Quinchia “a single-member Board decision should be deemed to have\n\n‘rel[ied] on’ existing precedent for Chevron purposes only where it is actually\n\n\n2\n The BIA Practice Manual, last revised in October 2018, has remained unchanged as to the\nprovisions cited by the Ninth Circuit in Garcia-Quintero. See BIA Prac. Man., Ch. 1.3 (rev.\n10/16/2018).\n 11\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 12 of 22\n\n\ndictated -- or ‘compelled’ -- by an earlier decision.” Barton v. U.S. Att’y Gen.,\n\n904 F.3d 1294, 1302 n.5 (11th Cir. 2018). And it is not clear to us whether the\n\nsingle-member, nonprecedential decision in this case was compelled by the earlier\n\nprecedential decisions in Matter of M–E–V–G–, 26 I. & N. Dec. 227 (BIA 2014),\n\nMatter of W–G–R–, 26 I. & N. Dec. 208 (BIA 2014), and Matter of A–M–E– & J–\n\nG–U–, 24 I. & N. Dec. 69 (BIA 2007). We need not ultimately decide the\n\nquestion, however, because the result would be the same whether we afford\n\nChevron deference directly to this single-member decision, only to the Acosta\n\nframework generally, or not at all. Under any analysis, whether deferential or de\n\nnovo, the proffered group -- “Mexican citizens targeted by criminal groups because\n\nthey have been in the United States and they have families in the United States” --\n\nis not legally cognizable as a particular social group.\n\n B.\n\n Affording Chevron deference to the BIA’s determination in this case, we are\n\nsatisfied that the Petitioners’ claims to asylum must be denied.\n\n The IJ determined and the BIA agreed that Perez-Zenteno failed to establish\n\nthat she was targeted on account of membership in a particular social group.\n\nAlthough the IJ found her to be a credible witness, the IJ concluded that the\n\nproffered social group was not cognizable under the INA. The BIA agreed, ruling\n\nthat “even if the factors of immutability and particularity were met, the respondents\n\n\n 12\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 13 of 22\n\n\ndid not establish that their claimed group is viewed as socially distinct within\n\nMexican society,” and that “the group is impermissibly circularly defined by the\n\nharm directed at its members.”\n\n In Matter of Acosta, the BIA had first interpreted the phrase “particular\n\nsocial group” to mean “a group of persons all of whom share a common,\n\nimmutable characteristic.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),\n\noverruled on other grounds, Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA\n\n1987). The shared characteristic uniting the social group “must be one that the\n\nmembers of the group either cannot change, or should not be required to change\n\nbecause it is fundamental to their individual identities or consciences.” Id. In a\n\nseries of precedential decisions, the BIA has elaborated that a particular social\n\ngroup also must be “defined with particularity” and be “socially distinct within the\n\nsociety in question.” Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014).\n\nRegarding particularity, the BIA has said that “[t]he [proposed] group must . . . be\n\ndiscrete and have definable boundaries -- it must not be amorphous, overbroad,\n\ndiffuse, or subjective.” Matter of W–G–R–, 26 I. & N. Dec. at 214; see also\n\nGonzalez, 820 F.3d at 404–05 (deferring to Matter of W–G–R–). Relatedly, the\n\nsocial distinction requirement asks “whether those with a common immutable\n\ncharacteristic are set apart, or distinct, from other persons within the society in\n\nsome significant way” -- that is, “[a] viable particular social group should be\n\n\n 13\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 14 of 22\n\n\nperceived within the given society as a sufficiently distinct group.” Matter of M–\n\nE–V–G–, 26 I. & N. Dec. at 238 (emphasis added). “The members of a particular\n\nsocial group will generally understand their own affiliation with the grouping, as\n\nwill other people in the particular society.” Id.\n\n The IJ and the BIA reasonably applied these precedents to this case and\n\nconcluded that Perez-Zenteno had failed to establish that her proffered group was\n\neither socially distinct or defined with sufficient particularity. Perez-Zenteno\n\nfailed to present any evidence even suggesting that the particular social group she\n\nhad proffered was perceived as being socially distinct in Mexico. Castillo-Arias,\n\n446 F.3d at 1194 (explaining that a proposed social group has “social visibility” --\n\nthe criteria later renamed to “social distinction” -- if it is bound by “characteristics\n\nwhich were highly visible and recognizable by others in the country in question”).\n\nIn response, Perez-Zenteno simply cited three pages drawn from the 2015 State\n\nDepartment Human Rights Report. But that Report does not support her claim that\n\nthe social group was socially visible or distinct. The State Department had only\n\nindicated, and on a general level at that, that “[o]rganized criminal groups killed,\n\nkidnapped, and intimidated citizens, migrants, journalists, and human rights\n\ndefenders.”\n\n Indeed, to the extent the Report made any reference to any group that even\n\narguably could be characterized as discrete, the Report simply identified prisoners,\n\n\n 14\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 15 of 22\n\n\nhuman rights activists, journalists, women, people with disabilities, indigenous\n\npeople, members of the LGBT community, and children forced into labor. In no\n\nway does the Report support the idea that Mexican citizens who traveled to the\n\nUnited States and who had family members who lived in the United States\n\nsomehow were socially distinct or uniquely targeted for abuse. The Report\n\nobserved that kidnapping -- the persecution suffered by Perez-Zenteno’s daughter -\n\n- “remain[s] a serious problem for persons at all socioeconomic levels.” Perez-\n\nZenteno has cited to no evidence supporting the idea that “Mexican citizens\n\ntargeted by criminal groups because they have been in the United States and have\n\nfamilies in the United States” are recognized as a socially distinct group.\n\n The IJ and BIA also reasonably determined that Petitioners failed to meet\n\nthe particularity requirement because the social group they proffered lacked any\n\ndefinable boundaries and actually encompassed a very large percentage of the\n\nMexican population. Finally, the BIA reasonably determined that the Petitioners’\n\nformulation was impermissibly circular. “Mexican citizens targeted by criminal\n\ngroups because they have been in the United States and have families in the United\n\nStates” do not comprise a particular social group because its defining attribute is\n\nthe risk of persecution stemming from being targeted by criminal groups.\n\nRodriguez, 735 F.3d at 1310. The proffered social group is defined in large\n\n\n\n\n 15\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 16 of 22\n\n\nmeasure by the risk of persecution. The IJ and BIA determinations were\n\nreasonable and -- on the assumption that Chevron applies -- entitled to deference.\n\n IV.\n\n Even if we were to conclude, however, that the IJ and BIA’s determinations\n\nare not entitled to deference because the ruling was made by a single member of\n\nthe Board and went substantially beyond its precedential holdings, we would still\n\nreach the same conclusion ourselves, and even in the absence of the Acosta\n\nframework at that. On any reading of the statute, Perez-Zenteno’s proffered\n\ndefinition does not constitute a particular social group.\n\n The phrase “particular social group” was enacted into American law in the\n\nRefugee Act of 1980, Pub. L. No. 96–212, 94 Stat. 102 (1980). The phrase\n\noriginated in the United Nations Protocol Relating to the Status of Refugees, done\n\nJanuary 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 (“UN Protocol”), which was\n\nratified by the United States in October 1968, 114 Cong. Rec. 29,607 (1968). The\n\nProtocol defined “refugee” as “any person who . . . owing to well-founded fear of\n\nbeing persecuted for reasons of race, religion, nationality, membership of a\n\nparticular social group or political opinion, is outside the country of his nationality\n\nand is unable or, owing to such fear, is unwilling to avail himself of the protection\n\nof that country.” UN Protocol, art. I. The Refugee Act adopted this definition\n\nwholesale.\n\n\n 16\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 17 of 22\n\n\n Any analysis of the statutory term “a particular social group” necessarily\n\nbegins with the text. See King v. Burwell, 135 S. Ct. 2480, 2489 (2015). While\n\nthe phrase “particular social group” is not altogether illuminating, there are some\n\nguideposts to be drawn from this language. A “group” is “a number of individuals\n\nbound together by a community of interest, purpose or function as a class.” Group,\n\nWebster’s Third New International Dictionary (1966). A “class” means a “society-\n\nwide grouping of people according to social status, political or economic\n\nsimilarities, or interests or ways of life in common.” Class, Webster’s Third New\n\nInternational Dictionary (1966). Thus, the phrase “social group” implies a subset\n\nof the population bound together by some discrete and palpable characteristics.\n\n The addition of the modifier “particular” suggests some narrowing from the\n\nbreadth otherwise found in the term “social group.” “Particular” means “of,\n\nrelating to, or being a single definite person or thing as distinguished from some or\n\nall others.” Particular, Webster’s Third New International Dictionary (1966).\n\nThus, a particular social group denotes some characteristic setting the group off in\n\na definite way from the vast majority of society; indeed, “particular” must\n\nmeaningfully narrow the possibilities or it would be mere surplusage and\n\nredundant of the word “group.” These limited textual clues, then, tell us that a\n\nparticular social group must be defined more narrowly.\n\n\n\n\n 17\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 18 of 22\n\n\n In Castillo-Arias, we explained that a “‘particular social group’ should not\n\nbe a ‘catch all’ for all persons alleging persecution who do not fit elsewhere. In\n\nrestricting the grounds for asylum and withholding of deportation based on\n\npersecution to five enumerated grounds, Congress could not have intended that all\n\nindividuals seeking this relief would qualify in some form by defining their own\n\n‘particular social group.’” Castillo-Arias, 446 F.3d at 1198. Based on the plain\n\nlanguage of the statute, its logic, and common sense, we agree with the BIA that a\n\n“particular social group” must be more narrowly defined. Like the BIA, we turn to\n\nsuch obvious, discrete and measurable factors as immutability, identity, visibility,\n\nhomogeneity, and cohesiveness in order to give meaning to the term. See Donchev\n\nv. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009).\n\n As we see it, any reasonable application of this statute necessarily yields the\n\nconclusion that the proffered group is drawn far too broadly to qualify as a\n\nparticular social group under the INA. The demographic group proposed is\n\nsweeping in its breadth and not easily cabined by any obvious guidepost or limiting\n\nprinciple. It is extraordinarily numerous, but we don’t even know how large\n\nbecause the Petitioners have not told us, and the group is wholly amorphous\n\nbecause they have filled in none of the blanks. Undeniably, large numbers of\n\nMexican citizens have visited the United States, perhaps numbering in the millions.\n\n\n\n\n 18\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 19 of 22\n\n\nAnd many Mexican citizens live in the United States, also perhaps numbering in\n\nthe millions.\n\n Perez-Zenteno has done nothing to limit or circumscribe this large and\n\ndiverse group in any way. Indeed, although we know that Perez-Zenteno lived in\n\nthe United States for roughly eight years, her proposed definition also would\n\nencompass Mexican citizens who have only visited the United States, so long as\n\nthey also have a family member residing in America. What’s more, having\n\n“family” in the United States is likewise impermissibly unclear. We cannot tell\n\nfrom anything Perez-Zenteno has told us whether it includes only immediate\n\nfamily members or indeed extends to far more distant familial relations.\n\n Some basic demographic figures illustrate the potential scope of this group.\n\nAs of 2016, more than 11 million United States residents were born in Mexico.\n\nPew Research Center, Facts on U.S. Immigrants, 2016 (2018), available at http://\n\nwww.pewhispanic.org/2018/09/14/facts-on-u-s-immigrants-current-data. Each of\n\nthose Mexico-born United States residents likely has a number of family members\n\nor indeed extended family members still living in Mexico. And the total\n\npopulation of Mexico as of 2017 was just over 123 million. See UN Statistics\n\nDivision, United Nations Demographic Yearbook (2017),\n\nhttps://unstats.un.org/unsd/demographic-social/products/dyb/dyb_2017 (estimating\n\nthe population of Mexico in 2017 as 123,518,000). Thus, the number of Mexican\n\n\n 19\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 20 of 22\n\n\ncitizens living in Mexico who “have family in the United States” likely constitutes\n\na significant percentage of the total population of Mexico.\n\n Put simply, the Petitioners’ proffered social group is amorphous,\n\ninsufficiently defined, and potentially encompasses a very large number of people\n\nwho live in Mexico. The Petitioners have failed to come close to meeting their\n\nburden of establishing a particular social group that is either immutable, identical,\n\nvisible, homogeneous, or cohesive. Accordingly, we deny Perez-Zenteno’s\n\npetition seeking asylum, withholding of removal, and humanitarian asylum. 3\n\n\n\n\n3\n At the end of her Blue Brief filed in this Court, Perez-Zenteno suggests that she need not show\nmembership in a particular social group in order to be granted humanitarian asylum. An\napplicant, who establishes that she is a refugee, may qualify for asylum even when the\ngovernment has rebutted the presumption of a well-founded fear of future persecution if: (1)\n“[t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to\nthe country arising out of the severity of the past persecution,” or (2) “[t]he applicant has\nestablished that there is a reasonable possibility that he or she may suffer other serious harm\nupon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii). This provision describes what we\nhave referred to as “humanitarian asylum.” Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200\n(11th Cir. 2009). But notably, in order to be granted humanitarian asylum, the applicant must\nstill establish that she is a refugee, which necessarily requires a showing of persecution on\naccount of a statutorily protected ground. See 8 C.F.R. § 1208.13(b)(1)(iii). Unlike the normal\nasylum process, humanitarian asylum allows an applicant to be granted asylum when her well-\nfounded fear of future persecution is rebutted by the government, or non-existent, or the\napplicant will be subjected to some other harm not associated with the already-established past\npersecution. That is the only difference between normal asylum applicants and humanitarian\nasylum applicants. Contrary to Perez-Zenteno’s suggestion, humanitarian asylum does not allow\nan applicant to receive asylum based on persecution unconnected to any statutorily protected\nground. She still must establish that she is a refugee, which requires a showing of past\npersecution on account of a statutorily protected ground. See 8 C.F.R. § 1208.13(b)(1)(iii).\nThus, our analysis concerning membership in a cognizable social group also forecloses her claim\nto humanitarian asylum.\n 20\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 21 of 22\n\n\n V.\n\n Although the IJ largely focused its opinion on the Petitioners’ failure to\n\ndefine a “particular social group,” the IJ also suggested -- and the BIA found that\n\nthe IJ determined -- that Perez-Zenteno failed to establish a nexus between the\n\npersecution suffered, the persecution she claims she will suffer, and any other\n\nstatutorily protected grounds for asylum. The determination of a persecutor’s\n\nmotive when considering whether an alien is eligible for asylum is essentially\n\nfactfinding. See Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 384 (5th\n\nCir. 2016). The BIA found no clear error in the IJ’s factual determination, and it\n\naffirmed on that basis as well. 4\n\n We agree with the BIA that even if the Petitioners had properly formulated a\n\n“particular social group” -- and on this record they haven’t come close to meeting\n\ntheir burden -- their claims still would fail because the record does not support, let\n\nalone compel reversal of the IJ’s finding that Perez-Zenteno did not demonstrate a\n\nnexus between persecution and membership in the proffered group. See Mendoza,\n\n327 F.3d at 1287. Perez-Zenteno has not established she was targeted for\n\npersecution on account of her ties to the United States.\n\n\n4\n The BIA did so in a footnote. The IJ found that Perez-Zenteno had “failed to establish a nexus\nbetween the persecution that she suffered and the persecution that she fears she will suffer, and\nany of the statutory grounds for asylum.” While it is possible to read from the context of that\nstatement that the IJ was simply referring to the Petitioners’ failure to allege a cognizable\nparticular social group, we believe it was reasonable for the BIA to determine that the IJ had\nmade a factual finding on this separate matter too.\n 21\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 22 of 22\n\n\n We can identify only two pieces of record evidence that even arguably\n\nsupport a finding of nexus. In her supplemental statement before the evidentiary\n\nhearing, Perez-Zenteno claimed that her assailants “told [her] that they knew the\n\nidentities of [her] children and that [her] husband was in the US.” During the\n\nhearing, the government’s lawyer asked Perez-Zenteno whether she was\n\nconsidered in Mexico to have money because she had just come back from the\n\nUnited States and had a husband who lived in the United States. She simply\n\nanswered in the affirmative. Perez-Zenteno offered no other evidence, testimonial\n\nor otherwise, that remotely suggested she was targeted because she had once lived\n\nin the United States or because her husband continued to do so. The long and short\n\nof it is that the failure to adequately controvert the nexus finding by the IJ provides\n\nan independent basis for affirming the BIA’s determination and denying the\n\npetition.\n\n Thus, on this record, the petition for asylum, withholding of removal, and\n\nhumanitarian asylum must be denied.\n\n PETITION DENIED.\n\n\n\n\n 22", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362119/", "author_raw": "MARCUS, Circuit Judge:"}]} | MARCUS | NEWSOM | EBEL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584866/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Maria Belen PEREZ-ZENTENO, Gerardo Melchor-Perez, Petitioners, v. U.S. ATTORNEY GENERAL, Respondent.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13201 Date Filed: 01/25/2019 Page: 1 of 22\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13201\n ________________________\n\n Agency No. A088-711-937\n\n\n\nMARIA BELEN PEREZ-ZENTENO,\nGERARDO MELCHOR-PEREZ,\n\n Petitioners,\n\nversus\n\nU.S. ATTORNEY GENERAL,\n\n Respondent.\n\n ________________________\n\n Petition for Review of a Decision of the\n Board of Immigration Appeals\n ________________________\n\n (January 25, 2019)\n\nBefore MARCUS, NEWSOM and EBEL, ∗ Circuit Judges.\n\nMARCUS, Circuit Judge:\n\n\n\n∗ Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by\ndesignation.\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 2 of 22\n\n\n The central question raised in this immigration appeal is whether the\n\nPetitioners are entitled to asylum on account of being members of a “particular\n\nsocial group” as defined in the Immigration and Nationality Act (INA). Maria\n\nPerez-Zenteno (“Perez-Zenteno”) and her son (Gerardo Melchor Perez) seek\n\nreview of a Board of Immigration Appeals (BIA) decision denying their requests\n\nfor asylum, withholding of removal, and humanitarian asylum. They claim\n\nentitlement to asylum because they were persecuted in Mexico on account of\n\nmembership in a “particular social group,” which they defined as all “Mexican\n\ncitizens targeted by criminal groups because they have been in the United States\n\nand they have families in the United States.” The Immigration Judge (IJ) denied\n\nrelief because, although Perez-Zenteno was beaten and brutally raped and her\n\ndaughter kidnapped, she failed to prove that she was persecuted on account of\n\nmembership in a statutorily protected group. The social group offered was neither\n\nsufficiently particular nor socially distinct. What’s more, the IJ determined Perez-\n\nZenteno failed to establish any nexus between the persecution she suffered and the\n\nstatutory grounds asserted. The BIA agreed. Because we too agree that Perez-\n\nZenteno has failed to establish membership in a particular social group, as defined\n\nby Congress, and because no nexus has been shown, we hold that the petition must\n\nbe denied.\n\n\n\n\n 2\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 3 of 22\n\n\n I.\n\n Maria Perez-Zenteno is a native and citizen of Mexico, from the village of\n\nTzitzio in the state of Michoacán. In 2015, she applied for admission to the United\n\nStates. On November 10, 2015, the Department of Homeland Security\n\ncommenced removal proceedings against Perez-Zenteno and her son by filing\n\nNotices to Appear, charging them with inadmissibility under 8 U.S.C.\n\n§ 1182(a)(7)(A)(i)(I) because they lacked valid entry documents. The Petitioners\n\nappeared before an IJ, represented by counsel. They admitted to the allegations\n\nand conceded the inadmissibility charges. However, Perez-Zenteno sought\n\nasylum, withholding of removal, and relief under the Convention Against Torture\n\non the ground that she suffered past persecution at the hands of Mexican criminals\n\nbased on her membership in a particular social group: “Mexican citizens targeted\n\nby criminal groups because they have been in the United States and they have\n\nfamilies in the United States.”1\n\n\n\n\n1\n Both the BIA and the Immigration Judge at various points defined the proffered group as\n“Mexican citizens targeted by criminal groups because they have been in the United States and\nhave families in the United States, and who are unable to get protection from their government.”\nThis additional language simply duplicates the statutory language defining a refugee as “any\nperson who is outside any country of such person’s nationality . . . and who is unable or unwilling\nto return to, and is unable or unwilling to avail himself or herself of the protection of, that country\nbecause of persecution or a well-founded fear of persecution on account of . . . membership in a\nparticular social group.” 8 U.S.C. § 1101(a)(42)(A) (emphasis added). Thus, we read the proposed\nsocial group as being “Mexican citizens targeted by criminal groups because they have been in the\nUnited States and have families in the United States.”\n 3\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 4 of 22\n\n\n At an evidentiary hearing conducted by the IJ, Perez-Zenteno claimed that\n\nshe first came to the United States in 1995 as an eleven-year-old child after her\n\nfather was killed in Mexico. She stayed for two years and returned to Mexico\n\nfearing sexual abuse at the hands of her uncle in the United States. In 2001, she\n\nreturned to the United States with her husband and young son. They had three\n\nmore children, all born in Florida, before Perez-Zenteno and her children returned\n\nto Mexico in 2007 because her mother became ill. The only family Perez-Zenteno\n\nspecifically identified as being in the United States after she left was her husband,\n\nwho continued working at a construction job in Florida.\n\n Perez-Zenteno further testified that in April 2013, while she and her children\n\nwere living in Mexico, her five-year-old daughter was kidnapped from a\n\nsupermarket. The kidnappers demanded a ransom of 150,000 pesos. When Perez-\n\nZenteno delivered the ransom, she was abducted, driven outside of town, beaten,\n\nand raped. Perez-Zenteno also was threatened, warned not to tell anyone of her\n\nattack, and released, to find her daughter returned to her sister’s home unharmed.\n\nA neighbor then offered to provide protection for 1,000 pesos per month, which\n\nPerez-Zenteno paid for approximately a year until she became suspicious that her\n\nneighbor was involved in the kidnapping plot. Perez-Zenteno eventually called the\n\npolice, who discovered a kidnapped man in her neighbor’s home, and arrested the\n\nneighbor in October 2014. In March 2015, after receiving a phone call threatening\n\n\n 4\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 5 of 22\n\n\nher for being a “snitch,” Perez-Zenteno fled along with her children to the United\n\nStates.\n\n The IJ denied the Petitioners’ application, concluding that Perez-Zenteno\n\nhad failed to establish she was the victim of past persecution on account of any\n\nstatutory ground for asylum, including membership in a cognizable social group.\n\nThe IJ likewise concluded that Perez-Zenteno had not established a well-founded\n\nfear of future persecution on account of any statutorily protected ground, including\n\nmembership in a particular social group. Although the Immigration Judge found\n\nPerez-Zenteno credible as to her rape and fear of returning to Mexico, the IJ\n\nconcluded that Perez-Zenteno’s proposed social group -- “Mexican citizens\n\ntargeted by criminal groups because they have been in the United States and they\n\nhave families in the United States” -- was not cognizable under the INA. The IJ\n\nfound that although the group might be based on an immutable characteristic --\n\nafter all, one cannot change the past experience of having been in the United States\n\nor having family in the United States -- the group was defined with insufficient\n\nparticularity and was not socially distinct. Consequently, the IJ denied Perez-\n\nZenteno’s application for asylum and withholding of removal.\n\n Perez-Zenteno appealed to the BIA. In a two-page, non-precedential\n\ndecision, a single member of the BIA affirmed the IJ’s decision. The BIA agreed\n\nthat Perez-Zenteno had failed to establish that she was targeted on account of\n\n\n 5\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 6 of 22\n\n\nmembership in a particular social group. The BIA said that “even if the factors of\n\nimmutability and particularity were met, the respondents did not establish that their\n\nclaimed group is viewed as socially distinct within Mexican society” and that “the\n\ngroup is impermissibly circularly defined by the harm directed at its members.” In\n\nsupport of its determination, the BIA cited to its opinion in Matter of A–M–E– &\n\nJ–G–U–, 24 I. & N. Dec. 69 (BIA 2007), a precedential panel decision that had\n\nfound that wealthy Guatemalans did not constitute a cognizable social group. The\n\nBIA also concluded that the IJ’s factual finding that Perez-Zenteno failed to\n\nestablish a nexus between her persecution and a statutorily protected ground was\n\nnot clearly erroneous.\n\n Perez-Zenteno seeks review in our Court of the denial of asylum,\n\nwithholding of removal, and humanitarian asylum.\n\n II.\n\n We review the BIA’s decision as the final judgment, unless the BIA\n\nexpressly adopted the IJ’s opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d\n\n1341, 1350 (11th Cir. 2009). When the BIA agrees with the IJ’s reasoning, we\n\nreview the decisions of both the BIA and the IJ. Id. Here, because the BIA agreed\n\nwith the findings of the IJ and added its own observations, we review both.\n\nMoreover, we review all legal conclusions de novo, Al Najjar v. Ashcroft, 257\n\nF.3d 1262, 1284 (11th Cir. 2001), including whether a group proffered by an\n\n\n 6\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 7 of 22\n\n\nasylum applicant constitutes a particular social group under the INA, Malu v. U.S.\n\nAtt’y Gen., 764 F.3d 1282, 1286, 1290 (11th Cir. 2014).\n\n As we have previously held, this de novo review is further informed by the\n\nprinciples of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources\n\nDefense Council, Inc., 467 U.S. 837 (1984). See Castillo-Arias v. U.S. Att’y Gen.,\n\n446 F.3d 1190, 1195 (11th Cir. 2006). Under Chevron, “[w]hen a court reviews an\n\nagency’s construction of the statute which it administers . . . [and] the statute is\n\nsilent or ambiguous with respect to the specific issue, the question for the court is\n\nwhether the agency’s answer is based on a permissible construction of the statute.”\n\nChevron, 467 U.S. at 842–43. If so, “a court may not substitute its own\n\nconstruction of a statutory provision for a reasonable interpretation made by the\n\nadministrator or agency.” Id. at 844.\n\n We also review findings of fact under the substantial-evidence test, which\n\nrequires us to “view the record evidence in the light most favorable to the agency’s\n\ndecision and draw all reasonable inferences in favor of that decision.” Adefemi v.\n\nAshcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). Accordingly, we must\n\naffirm the BIA’s decision “if it is supported by reasonable, substantial, and\n\nprobative evidence on the record considered as a whole.” D-Muhumed v. U.S.\n\nAtt’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) (quotation omitted). “To reverse\n\nthe . . . fact findings, [the Court] must find that the record not only supports\n\n\n 7\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 8 of 22\n\n\nreversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th\n\nCir. 2003). “That is, even if the evidence could support multiple conclusions, we\n\nmust affirm the agency’s decision unless there is no reasonable basis for that\n\ndecision.” Adefemi, 386 F.3d at 1029.\n\n III.\n\n Under the Immigration and Nationality Act, the “Secretary of Homeland\n\nSecurity or the Attorney General may grant asylum to an alien . . . if the Secretary\n\nof Homeland Security or the Attorney General determines that such alien is a\n\nrefugee within the meaning of section 1101(a)(42)(A).” 8 U.S.C. § 1158(b)(1).\n\nThe INA, in turn, defines “a refugee” as “any person who is outside any country of\n\nsuch person’s nationality or, in the case of a person having no nationality, is\n\noutside any country in which such person last habitually resided, and who is unable\n\nor unwilling to return to, and is unable or unwilling to avail himself or herself of\n\nthe protection of, that country because of persecution or a well-founded fear of\n\npersecution on account of race, religion, nationality, membership in a particular\n\nsocial group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (emphasis added).\n\nPlainly, an asylum applicant bears the burden of establishing “refugee” status, 8\n\nC.F.R. § 208.13(a), so she must present “specific, credible evidence”\n\ndemonstrating either past persecution on account of a statutorily protected ground,\n\nor a well-founded fear of future persecution on account of a statutorily protected\n\n\n 8\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 9 of 22\n\n\nground, 8 C.F.R. § 208.13(b). See also Al Najjar, 257 F.3d at 1287. And to satisfy\n\nthe “on account of a statutorily protected ground” requirement, the applicant must\n\nprove that the protected ground “was or will be at least one central reason for\n\npersecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).\n\n A.\n\n Here, the IJ and the BIA agreed that Perez-Zenteno failed to demonstrate\n\nthat “Mexican citizens targeted by criminal groups because they have been in the\n\nUnited States and they have families in the United States” were viewed as a\n\nsocially distinct group in Mexico and that the group was not defined with sufficient\n\nparticularity.\n\n The antecedent question we confront is the level of deference to afford the\n\nBIA’s determination. Our law is clear that we defer to reasonable interpretations\n\nof the ambiguous statutory phrase “particular social group” set forth in\n\nprecedential, three-member BIA decisions, including Matter of Acosta, 19 I. & N.\n\nDec. 211 (BIA 1985) and its progeny. See Gonzalez v. U.S. Att’y Gen., 820 F.3d\n\n399, 404 (11th Cir. 2016) (“We have previously held that the BIA’s interpretation\n\nof the phrase ‘particular social group’ in 8 U.S.C. § 1231(b)(3)(A) is entitled to\n\nChevron deference because the INA does not define the phrase and it is\n\nambiguous.”) (citing Castillo-Arias, 446 F.3d at 1196); see also I.N.S. v. Aguirre-\n\nAguirre, 526 U.S. 415, 424–25 (1999) (noting that “[i]t is clear that principles of\n\n\n 9\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 10 of 22\n\n\nChevron deference are applicable to [the INA] statutory scheme” and that “the BIA\n\nshould be accorded Chevron deference as it gives ambiguous statutory terms\n\n‘concrete meaning through a process of case-by-case adjudication’”) (quoting\n\nI.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448–49 (1987)).\n\n But the general principle that the BIA is entitled to deference in interpreting\n\nthe meaning of “a particular social group” is not the end of the story. Two years\n\nafter Castillo-Arias, a panel of this Court adopted the view expressed by the\n\nSecond and Ninth Circuits that single-member, non-precedential BIA decisions --\n\nlike the one before us now -- may not be entitled to any deference. Quinchia v.\n\nU.S. Att’y Gen., 552 F.3d 1255, 1258 (11th Cir. 2008). That is, while the Acosta\n\nframework is entitled to deference, a single-member application of that framework\n\nto a particular case may not be. The Second and Ninth Circuits had narrowed\n\nChevron deference because the Supreme Court had done so in United States v.\n\nMead Corp., 533 U.S. 218 (2001). See Garcia-Quintero v. Gonzales, 455 F.3d\n\n1006 (9th Cir. 2006); Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007). In Garcia-\n\nQuintero, the Ninth Circuit cited to Mead and held “that Chevron deference applies\n\nonly ‘when it appears that Congress delegated authority to the agency generally to\n\nmake rules carrying the force of law, and that the agency interpretation claiming\n\ndeference was promulgated in the exercise of that authority.’” Id. at 1012 (quoting\n\nMead, 533 U.S. at 226–27) (emphasis added in original); see also id. (noting that\n\n\n 10\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 11 of 22\n\n\n“[i]n light of Mead, the ‘essential factor’ in determining whether an agency action\n\nwarrants Chevron deference is its precedential value” (quoting Miranda Alvarado\n\nv. Gonzales, 449 F.3d 915, 922 (9th Cir. 2006))). Relying on BIA regulations and\n\nthe BIA’s Practice Manual, the Ninth Circuit found that only three-member panel,\n\npublished BIA decisions may serve as precedents, and thus only those decisions\n\nare interpretations promulgated in the exercise of its delegated authority. Id. at\n\n1012–13 (citing 8 C.F.R. § 1003.1; BIA Prac. Man., Ch. 1.3(a)(i) (rev.\n\n6/15/2014)2).\n\n In Rotimi, the Second Circuit similarly applied Mead and declined to afford\n\nChevron deference to a single-member BIA decision interpreting the phrase\n\n“lawfully resided continually” for purposes of a § 212(h) waiver. Rotimi, 473 F.3d\n\nat 57 (“Because there is no indication that the BIA’s nonprecedential single-\n\nmember decision was ‘promulgated’ under its authority to ‘make rules carrying the\n\nforce of law,’ we do not accord it Chevron deference.”) (citation omitted).\n\n It is not at all clear that we are obliged to afford deference directly to the\n\nsingle-member decision in this case. As a panel of this Court recently observed,\n\npursuant to Quinchia “a single-member Board decision should be deemed to have\n\n‘rel[ied] on’ existing precedent for Chevron purposes only where it is actually\n\n\n2\n The BIA Practice Manual, last revised in October 2018, has remained unchanged as to the\nprovisions cited by the Ninth Circuit in Garcia-Quintero. See BIA Prac. Man., Ch. 1.3 (rev.\n10/16/2018).\n 11\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 12 of 22\n\n\ndictated -- or ‘compelled’ -- by an earlier decision.” Barton v. U.S. Att’y Gen.,\n\n904 F.3d 1294, 1302 n.5 (11th Cir. 2018). And it is not clear to us whether the\n\nsingle-member, nonprecedential decision in this case was compelled by the earlier\n\nprecedential decisions in Matter of M–E–V–G–, 26 I. & N. Dec. 227 (BIA 2014),\n\nMatter of W–G–R–, 26 I. & N. Dec. 208 (BIA 2014), and Matter of A–M–E– & J–\n\nG–U–, 24 I. & N. Dec. 69 (BIA 2007). We need not ultimately decide the\n\nquestion, however, because the result would be the same whether we afford\n\nChevron deference directly to this single-member decision, only to the Acosta\n\nframework generally, or not at all. Under any analysis, whether deferential or de\n\nnovo, the proffered group -- “Mexican citizens targeted by criminal groups because\n\nthey have been in the United States and they have families in the United States” --\n\nis not legally cognizable as a particular social group.\n\n B.\n\n Affording Chevron deference to the BIA’s determination in this case, we are\n\nsatisfied that the Petitioners’ claims to asylum must be denied.\n\n The IJ determined and the BIA agreed that Perez-Zenteno failed to establish\n\nthat she was targeted on account of membership in a particular social group.\n\nAlthough the IJ found her to be a credible witness, the IJ concluded that the\n\nproffered social group was not cognizable under the INA. The BIA agreed, ruling\n\nthat “even if the factors of immutability and particularity were met, the respondents\n\n\n 12\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 13 of 22\n\n\ndid not establish that their claimed group is viewed as socially distinct within\n\nMexican society,” and that “the group is impermissibly circularly defined by the\n\nharm directed at its members.”\n\n In Matter of Acosta, the BIA had first interpreted the phrase “particular\n\nsocial group” to mean “a group of persons all of whom share a common,\n\nimmutable characteristic.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),\n\noverruled on other grounds, Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA\n\n1987). The shared characteristic uniting the social group “must be one that the\n\nmembers of the group either cannot change, or should not be required to change\n\nbecause it is fundamental to their individual identities or consciences.” Id. In a\n\nseries of precedential decisions, the BIA has elaborated that a particular social\n\ngroup also must be “defined with particularity” and be “socially distinct within the\n\nsociety in question.” Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014).\n\nRegarding particularity, the BIA has said that “[t]he [proposed] group must . . . be\n\ndiscrete and have definable boundaries -- it must not be amorphous, overbroad,\n\ndiffuse, or subjective.” Matter of W–G–R–, 26 I. & N. Dec. at 214; see also\n\nGonzalez, 820 F.3d at 404–05 (deferring to Matter of W–G–R–). Relatedly, the\n\nsocial distinction requirement asks “whether those with a common immutable\n\ncharacteristic are set apart, or distinct, from other persons within the society in\n\nsome significant way” -- that is, “[a] viable particular social group should be\n\n\n 13\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 14 of 22\n\n\nperceived within the given society as a sufficiently distinct group.” Matter of M–\n\nE–V–G–, 26 I. & N. Dec. at 238 (emphasis added). “The members of a particular\n\nsocial group will generally understand their own affiliation with the grouping, as\n\nwill other people in the particular society.” Id.\n\n The IJ and the BIA reasonably applied these precedents to this case and\n\nconcluded that Perez-Zenteno had failed to establish that her proffered group was\n\neither socially distinct or defined with sufficient particularity. Perez-Zenteno\n\nfailed to present any evidence even suggesting that the particular social group she\n\nhad proffered was perceived as being socially distinct in Mexico. Castillo-Arias,\n\n446 F.3d at 1194 (explaining that a proposed social group has “social visibility” --\n\nthe criteria later renamed to “social distinction” -- if it is bound by “characteristics\n\nwhich were highly visible and recognizable by others in the country in question”).\n\nIn response, Perez-Zenteno simply cited three pages drawn from the 2015 State\n\nDepartment Human Rights Report. But that Report does not support her claim that\n\nthe social group was socially visible or distinct. The State Department had only\n\nindicated, and on a general level at that, that “[o]rganized criminal groups killed,\n\nkidnapped, and intimidated citizens, migrants, journalists, and human rights\n\ndefenders.”\n\n Indeed, to the extent the Report made any reference to any group that even\n\narguably could be characterized as discrete, the Report simply identified prisoners,\n\n\n 14\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 15 of 22\n\n\nhuman rights activists, journalists, women, people with disabilities, indigenous\n\npeople, members of the LGBT community, and children forced into labor. In no\n\nway does the Report support the idea that Mexican citizens who traveled to the\n\nUnited States and who had family members who lived in the United States\n\nsomehow were socially distinct or uniquely targeted for abuse. The Report\n\nobserved that kidnapping -- the persecution suffered by Perez-Zenteno’s daughter -\n\n- “remain[s] a serious problem for persons at all socioeconomic levels.” Perez-\n\nZenteno has cited to no evidence supporting the idea that “Mexican citizens\n\ntargeted by criminal groups because they have been in the United States and have\n\nfamilies in the United States” are recognized as a socially distinct group.\n\n The IJ and BIA also reasonably determined that Petitioners failed to meet\n\nthe particularity requirement because the social group they proffered lacked any\n\ndefinable boundaries and actually encompassed a very large percentage of the\n\nMexican population. Finally, the BIA reasonably determined that the Petitioners’\n\nformulation was impermissibly circular. “Mexican citizens targeted by criminal\n\ngroups because they have been in the United States and have families in the United\n\nStates” do not comprise a particular social group because its defining attribute is\n\nthe risk of persecution stemming from being targeted by criminal groups.\n\nRodriguez, 735 F.3d at 1310. The proffered social group is defined in large\n\n\n\n\n 15\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 16 of 22\n\n\nmeasure by the risk of persecution. The IJ and BIA determinations were\n\nreasonable and -- on the assumption that Chevron applies -- entitled to deference.\n\n IV.\n\n Even if we were to conclude, however, that the IJ and BIA’s determinations\n\nare not entitled to deference because the ruling was made by a single member of\n\nthe Board and went substantially beyond its precedential holdings, we would still\n\nreach the same conclusion ourselves, and even in the absence of the Acosta\n\nframework at that. On any reading of the statute, Perez-Zenteno’s proffered\n\ndefinition does not constitute a particular social group.\n\n The phrase “particular social group” was enacted into American law in the\n\nRefugee Act of 1980, Pub. L. No. 96–212, 94 Stat. 102 (1980). The phrase\n\noriginated in the United Nations Protocol Relating to the Status of Refugees, done\n\nJanuary 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268 (“UN Protocol”), which was\n\nratified by the United States in October 1968, 114 Cong. Rec. 29,607 (1968). The\n\nProtocol defined “refugee” as “any person who . . . owing to well-founded fear of\n\nbeing persecuted for reasons of race, religion, nationality, membership of a\n\nparticular social group or political opinion, is outside the country of his nationality\n\nand is unable or, owing to such fear, is unwilling to avail himself of the protection\n\nof that country.” UN Protocol, art. I. The Refugee Act adopted this definition\n\nwholesale.\n\n\n 16\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 17 of 22\n\n\n Any analysis of the statutory term “a particular social group” necessarily\n\nbegins with the text. See King v. Burwell, 135 S. Ct. 2480, 2489 (2015). While\n\nthe phrase “particular social group” is not altogether illuminating, there are some\n\nguideposts to be drawn from this language. A “group” is “a number of individuals\n\nbound together by a community of interest, purpose or function as a class.” Group,\n\nWebster’s Third New International Dictionary (1966). A “class” means a “society-\n\nwide grouping of people according to social status, political or economic\n\nsimilarities, or interests or ways of life in common.” Class, Webster’s Third New\n\nInternational Dictionary (1966). Thus, the phrase “social group” implies a subset\n\nof the population bound together by some discrete and palpable characteristics.\n\n The addition of the modifier “particular” suggests some narrowing from the\n\nbreadth otherwise found in the term “social group.” “Particular” means “of,\n\nrelating to, or being a single definite person or thing as distinguished from some or\n\nall others.” Particular, Webster’s Third New International Dictionary (1966).\n\nThus, a particular social group denotes some characteristic setting the group off in\n\na definite way from the vast majority of society; indeed, “particular” must\n\nmeaningfully narrow the possibilities or it would be mere surplusage and\n\nredundant of the word “group.” These limited textual clues, then, tell us that a\n\nparticular social group must be defined more narrowly.\n\n\n\n\n 17\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 18 of 22\n\n\n In Castillo-Arias, we explained that a “‘particular social group’ should not\n\nbe a ‘catch all’ for all persons alleging persecution who do not fit elsewhere. In\n\nrestricting the grounds for asylum and withholding of deportation based on\n\npersecution to five enumerated grounds, Congress could not have intended that all\n\nindividuals seeking this relief would qualify in some form by defining their own\n\n‘particular social group.’” Castillo-Arias, 446 F.3d at 1198. Based on the plain\n\nlanguage of the statute, its logic, and common sense, we agree with the BIA that a\n\n“particular social group” must be more narrowly defined. Like the BIA, we turn to\n\nsuch obvious, discrete and measurable factors as immutability, identity, visibility,\n\nhomogeneity, and cohesiveness in order to give meaning to the term. See Donchev\n\nv. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009).\n\n As we see it, any reasonable application of this statute necessarily yields the\n\nconclusion that the proffered group is drawn far too broadly to qualify as a\n\nparticular social group under the INA. The demographic group proposed is\n\nsweeping in its breadth and not easily cabined by any obvious guidepost or limiting\n\nprinciple. It is extraordinarily numerous, but we don’t even know how large\n\nbecause the Petitioners have not told us, and the group is wholly amorphous\n\nbecause they have filled in none of the blanks. Undeniably, large numbers of\n\nMexican citizens have visited the United States, perhaps numbering in the millions.\n\n\n\n\n 18\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 19 of 22\n\n\nAnd many Mexican citizens live in the United States, also perhaps numbering in\n\nthe millions.\n\n Perez-Zenteno has done nothing to limit or circumscribe this large and\n\ndiverse group in any way. Indeed, although we know that Perez-Zenteno lived in\n\nthe United States for roughly eight years, her proposed definition also would\n\nencompass Mexican citizens who have only visited the United States, so long as\n\nthey also have a family member residing in America. What’s more, having\n\n“family” in the United States is likewise impermissibly unclear. We cannot tell\n\nfrom anything Perez-Zenteno has told us whether it includes only immediate\n\nfamily members or indeed extends to far more distant familial relations.\n\n Some basic demographic figures illustrate the potential scope of this group.\n\nAs of 2016, more than 11 million United States residents were born in Mexico.\n\nPew Research Center, Facts on U.S. Immigrants, 2016 (2018), available at http://\n\nwww.pewhispanic.org/2018/09/14/facts-on-u-s-immigrants-current-data. Each of\n\nthose Mexico-born United States residents likely has a number of family members\n\nor indeed extended family members still living in Mexico. And the total\n\npopulation of Mexico as of 2017 was just over 123 million. See UN Statistics\n\nDivision, United Nations Demographic Yearbook (2017),\n\nhttps://unstats.un.org/unsd/demographic-social/products/dyb/dyb_2017 (estimating\n\nthe population of Mexico in 2017 as 123,518,000). Thus, the number of Mexican\n\n\n 19\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 20 of 22\n\n\ncitizens living in Mexico who “have family in the United States” likely constitutes\n\na significant percentage of the total population of Mexico.\n\n Put simply, the Petitioners’ proffered social group is amorphous,\n\ninsufficiently defined, and potentially encompasses a very large number of people\n\nwho live in Mexico. The Petitioners have failed to come close to meeting their\n\nburden of establishing a particular social group that is either immutable, identical,\n\nvisible, homogeneous, or cohesive. Accordingly, we deny Perez-Zenteno’s\n\npetition seeking asylum, withholding of removal, and humanitarian asylum. 3\n\n\n\n\n3\n At the end of her Blue Brief filed in this Court, Perez-Zenteno suggests that she need not show\nmembership in a particular social group in order to be granted humanitarian asylum. An\napplicant, who establishes that she is a refugee, may qualify for asylum even when the\ngovernment has rebutted the presumption of a well-founded fear of future persecution if: (1)\n“[t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to\nthe country arising out of the severity of the past persecution,” or (2) “[t]he applicant has\nestablished that there is a reasonable possibility that he or she may suffer other serious harm\nupon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii). This provision describes what we\nhave referred to as “humanitarian asylum.” Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200\n(11th Cir. 2009). But notably, in order to be granted humanitarian asylum, the applicant must\nstill establish that she is a refugee, which necessarily requires a showing of persecution on\naccount of a statutorily protected ground. See 8 C.F.R. § 1208.13(b)(1)(iii). Unlike the normal\nasylum process, humanitarian asylum allows an applicant to be granted asylum when her well-\nfounded fear of future persecution is rebutted by the government, or non-existent, or the\napplicant will be subjected to some other harm not associated with the already-established past\npersecution. That is the only difference between normal asylum applicants and humanitarian\nasylum applicants. Contrary to Perez-Zenteno’s suggestion, humanitarian asylum does not allow\nan applicant to receive asylum based on persecution unconnected to any statutorily protected\nground. She still must establish that she is a refugee, which requires a showing of past\npersecution on account of a statutorily protected ground. See 8 C.F.R. § 1208.13(b)(1)(iii).\nThus, our analysis concerning membership in a cognizable social group also forecloses her claim\nto humanitarian asylum.\n 20\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 21 of 22\n\n\n V.\n\n Although the IJ largely focused its opinion on the Petitioners’ failure to\n\ndefine a “particular social group,” the IJ also suggested -- and the BIA found that\n\nthe IJ determined -- that Perez-Zenteno failed to establish a nexus between the\n\npersecution suffered, the persecution she claims she will suffer, and any other\n\nstatutorily protected grounds for asylum. The determination of a persecutor’s\n\nmotive when considering whether an alien is eligible for asylum is essentially\n\nfactfinding. See Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 384 (5th\n\nCir. 2016). The BIA found no clear error in the IJ’s factual determination, and it\n\naffirmed on that basis as well. 4\n\n We agree with the BIA that even if the Petitioners had properly formulated a\n\n“particular social group” -- and on this record they haven’t come close to meeting\n\ntheir burden -- their claims still would fail because the record does not support, let\n\nalone compel reversal of the IJ’s finding that Perez-Zenteno did not demonstrate a\n\nnexus between persecution and membership in the proffered group. See Mendoza,\n\n327 F.3d at 1287. Perez-Zenteno has not established she was targeted for\n\npersecution on account of her ties to the United States.\n\n\n4\n The BIA did so in a footnote. The IJ found that Perez-Zenteno had “failed to establish a nexus\nbetween the persecution that she suffered and the persecution that she fears she will suffer, and\nany of the statutory grounds for asylum.” While it is possible to read from the context of that\nstatement that the IJ was simply referring to the Petitioners’ failure to allege a cognizable\nparticular social group, we believe it was reasonable for the BIA to determine that the IJ had\nmade a factual finding on this separate matter too.\n 21\n\f Case: 17-13201 Date Filed: 01/25/2019 Page: 22 of 22\n\n\n We can identify only two pieces of record evidence that even arguably\n\nsupport a finding of nexus. In her supplemental statement before the evidentiary\n\nhearing, Perez-Zenteno claimed that her assailants “told [her] that they knew the\n\nidentities of [her] children and that [her] husband was in the US.” During the\n\nhearing, the government’s lawyer asked Perez-Zenteno whether she was\n\nconsidered in Mexico to have money because she had just come back from the\n\nUnited States and had a husband who lived in the United States. She simply\n\nanswered in the affirmative. Perez-Zenteno offered no other evidence, testimonial\n\nor otherwise, that remotely suggested she was targeted because she had once lived\n\nin the United States or because her husband continued to do so. The long and short\n\nof it is that the failure to adequately controvert the nexus finding by the IJ provides\n\nan independent basis for affirming the BIA’s determination and denying the\n\npetition.\n\n Thus, on this record, the petition for asylum, withholding of removal, and\n\nhumanitarian asylum must be denied.\n\n PETITION DENIED.\n\n\n\n\n 22\n[END_CASE]",
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4,584,880 | Douglas ECHOLS, Plaintiff-Appellant, v. Spencer LAWTON, in His Individual Capacity, Defendant-Appellee. | Douglas Echols v. Spencer Lawton | 2019-01-25 | 17-13843 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Pryor, Gilman", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887927/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887928/", "author_raw": ""}, {"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-13843 Date Filed: 01/25/2019 Page: 1 of 26\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13843\n ________________________\n\n D.C. Docket No. 4:08-cv-00023-WTM-GRS\n\n\n\nDOUGLAS ECHOLS,\n\n Plaintiff-Appellant,\n versus\n\nSPENCER LAWTON,\nin his individual capacity,\n\n Defendant-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Georgia\n _______________________\n\n (January 25, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n\n*\n Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 2 of 26\n\n\n This appeal requires us to decide whether a district attorney enjoys qualified\n\nimmunity from a complaint that he defamed a former prisoner in retaliation for\n\nseeking legislative compensation for his wrongful convictions. After Douglas\n\nEchols served seven years of imprisonment for kidnapping and rape, a test revealed\n\nthat his DNA did not match the semen recovered from the victim. Echols presented\n\nthis evidence to Spencer Lawton, the local district attorney, who had a state crime\n\nlab confirm the test results. A Georgia trial court later vacated Echols’s\n\nconvictions. After Lawton declined to retry Echols, the trial court dismissed the\n\nindictment against him. A state legislator then introduced a bill to compensate\n\nEchols for his wrongful convictions. But Lawton wrote in opposition to the bill and\n\nallegedly falsely stated that Echols remained under indictment—a libel per se. See\n\nHarcrow v. Struhar, 511 S.E.2d 545, 546 (Ga. Ct. App. 1999). After the bill failed,\n\nEchols sued Lawton for violating his rights under the First and Fourteenth\n\nAmendments, 42 U.S.C. § 1983. The district court dismissed Echols’s complaint\n\nbased on qualified immunity. Although we conclude that Echols’s complaint states\n\na valid claim of retaliation under the First Amendment, we agree with the district\n\ncourt that Lawton enjoys qualified immunity because Echols’s right was not\n\nclearly established when Lawton violated it. We affirm.\n\n\n\n\n 2\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 3 of 26\n\n\n I. BACKGROUND\n\n In 1986, three unknown assailants kidnapped and raped Donna Givens in\n\nSavannah, Georgia. Although Douglas Echols professed his innocence, a jury\n\nconvicted him of the kidnapping and rape of Givens. He was sentenced to 15 years\n\nof imprisonment.\n\n After Echols served seven years of his sentence, a DNA test revealed that\n\nthe semen recovered from Givens did not match Echols’s DNA. Echols presented\n\nthis evidence to Spencer Lawton, the district attorney for Chatham County, who\n\nalso served in that role when Echols was convicted. Lawton ordered the state crime\n\nlab to conduct additional testing, which confirmed that the semen was not from\n\nEchols.\n\n A Georgia trial court then vacated Echols’s convictions and granted him a\n\nnew trial. Instead of retrying Echols, the state entered a nolle prosequi on the\n\ncharges of kidnapping and rape, and the trial court dismissed the indictment against\n\nhim.\n\n Four years later, after the Georgia Claims Advisory Board recommended\n\ncompensation for Echols, a legislator in the Georgia General Assembly introduced\n\na bill to compensate him with $1.6 million for his wrongful convictions. But before\n\nthe General Assembly voted on the bill, Lawton sent a letter and memorandum to\n\nseveral legislators opposing Echols’s compensation. Echols “was informed by the\n\n\n\n 3\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 4 of 26\n\n\nlegislature that [the bill] would not pass specifically due to . . . Lawton’s\n\ncorrespondence.” Indeed, the legislators with whom Lawton corresponded blocked\n\nthe bill from reaching the floor of the General Assembly, and the bill failed.\n\n Echols then filed a complaint against Lawton, which he later amended. In\n\nhis amended complaint, Echols alleged that Lawton violated his rights under the\n\nFirst and Fourteenth Amendments, 42 U.S.C. § 1983, by providing “false\n\ninformation” and “intentionally misleading legal advice” to the legislators. Echols\n\nalleged that Lawton told the legislators that Echols’s convictions “were proper and\n\nfitting, even though [his] conviction[s] had been vacated.” Lawton also told the\n\nlegislators not to presume Echols innocent of kidnapping and rape because the\n\nvacatur of his convictions did not establish his innocence. Lawton urged the\n\nlegislators not to compensate Echols unless he proved his innocence. And Lawton\n\ntold the legislators that Echols remained under indictment for kidnapping and rape\n\neven though the indictment had been dismissed four years earlier when the state\n\nentered a nolle prosequi on the charges. Echols complained that Lawton interfered\n\nwith his freedom of speech and right to petition the government and retaliated\n\nagainst him for exercising those rights. And Echols complained that Lawton\n\nviolated his right to due process of law by depriving him of a presumption of\n\ninnocence.\n\n\n\n\n 4\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 5 of 26\n\n\n The district court granted Lawton’s motion to dismiss Echols’s complaint.\n\nThe district court ruled that Echols’s complaint failed to state a claim under either\n\nthe First or Fourteenth Amendments. It ruled that Lawton’s letter did not amount to\n\na threat, coercion, or intimidation, so Echols failed to state a claim of First\n\nAmendment retaliation. And it ruled that Echols failed to state a claim under the\n\nDue Process Clause of the Fourteenth Amendment because he failed to allege\n\neither a violation of a fundamental liberty or government conduct that shocks the\n\nconscience. The district court also ruled that Lawton enjoys qualified immunity\n\nbecause Echols’s complaint failed to allege the violation of a right that was clearly\n\nestablished when Lawton sent his letter.\n\n II. STANDARD OF REVIEW\n\n We review de novo a dismissal of a complaint for failure to state a claim.\n\nMills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). We accept the\n\nfactual allegations in the complaint as true and construe them in the light most\n\nfavorable to the plaintiff. Id. “To survive a motion to dismiss, a complaint must\n\ncontain sufficient factual matter, accepted as true, to ‘state a claim to relief that is\n\nplausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell\n\nAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We also review de novo a grant\n\nof qualified immunity. Courson v. McMillian, 939 F.2d 1479, 1486 (11th Cir.\n\n1991).\n\n\n\n 5\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 6 of 26\n\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that Lawton enjoys\n\nqualified immunity from the claim that he retaliated against Echols for exercising\n\nhis rights under the First Amendment. Second, we explain that Lawton also enjoys\n\nqualified immunity from the claim that he violated Echols’s right to due process of\n\nlaw because the general rubric of substantive due process cannot be used to govern\n\na claim that is otherwise covered by the specific text of the First Amendment.\n\n A. Lawton Enjoys Qualified Immunity from Echols’s Claim of Retaliation\n Under the First Amendment.\n\n Lawton contends that he is entitled to qualified immunity from Echols’s\n\ncomplaint of retaliation in violation of the First Amendment. “Qualified immunity\n\nshields public officials from liability for civil damages when their conduct does not\n\nviolate a constitutional right that was clearly established at the time of the\n\nchallenged action.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). To\n\nobtain a dismissal based on qualified immunity, “a government official must first\n\nestablish that he was acting within the scope of his discretionary authority when\n\nthe alleged wrongful act occurred.” Id. If he was, the burden then shifts to the\n\nplaintiff to overcome the official’s qualified immunity. Mikko v. City of Atlanta,\n\n857 F.3d 1136, 1144 (11th Cir. 2017). To overcome qualified immunity, a plaintiff\n\nmust “plead[] facts showing (1) that the official violated a statutory or\n\n\n\n\n 6\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 7 of 26\n\n\nconstitutional right, and (2) that the right was ‘clearly established’ at the time of\n\nthe challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).\n\n Echols argues that Lawton acted outside the scope of his discretionary\n\nauthority when he sent the letter to the legislators, but we disagree. To be sure, “[a]\n\nprosecutor’s most basic duty is to prosecute cases in his jurisdiction on behalf of\n\nthe State.” Mikko, 857 F.3d at 1144. But we have explained “[r]elated to that duty,”\n\na prosecutor’s discretionary authority also includes “communicat[ions] with other\n\nlaw enforcement agencies, officials, or employees about current or potential\n\nprosecutions.” Id. Prosecutors must and do regularly communicate with legislators\n\nabout a variety of issues related to their offices and the criminal justice system.\n\nThose issues may involve administrative and financial matters, public safety and\n\ncriminal justice policies, and past, pending, or future prosecutions. Lawton’s letter\n\naddressed the public fisc and both a past prosecution and a potential future\n\nprosecution, so his communication with legislators was clearly “within, or\n\nreasonably related to the outer perimeter of [his] discretionary duties.” Id.\n\n(emphasis omitted) (citation omitted). Because Lawton satisfied his initial burden\n\nto invoke qualified immunity, the burden shifted to Echols.\n\n We agree with the district court that Lawton enjoys qualified immunity from\n\nEchols’s complaint, but we do so for a different reason. In contrast with the district\n\ncourt, we conclude that Echols’s complaint states a valid claim that Lawton\n\n\n\n 7\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 8 of 26\n\n\nviolated a right protected by the First Amendment. But even so, that right was not\n\nclearly established when Lawton allegedly violated it.\n\n 1. Echols Stated a Claim of Retaliation in Violation of the First Amendment.\n\n The First Amendment provides that “Congress shall make no\n\nlaw . . . abridging the freedom of speech, or . . . the right . . . to petition the\n\ngovernment for a redress of grievances.” U.S. Const. Amend. I. The Amendment\n\nprotects “not only the affirmative right to speak, but also the right to be free from\n\nretaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v.\n\nMcGraw, 202 F.3d 676, 685 (4th Cir. 2000). To state a claim for First Amendment\n\nretaliation, a plaintiff must allege that he engaged in protected speech, that the\n\nofficial’s conduct adversely affected the protected speech, and that a causal\n\nconnection exists between the speech and the official’s retaliatory conduct. Bailey,\n\n843 F.3d at 480–81. Only the second element is at issue in this appeal.\n\n When reviewing an official’s retaliatory conduct for adverse effect, we\n\nconsider whether his alleged conduct “would likely deter a person of ordinary\n\nfirmness from the exercise of First Amendment rights,” id. at 481, but we have\n\nacknowledged that special concerns arise when an official’s “own First\n\nAmendment rights are implicated” in the commission of an alleged constitutional\n\ntort, Dixon v. Burke Cty., 303 F.3d 1271, 1275 (11th Cir. 2002) (citing Suarez\n\nCorp., 202 F.3d at 687). Because Lawton allegedly retaliated through his own\n\n\n\n 8\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 9 of 26\n\n\nspeech to members of the General Assembly, the district court considered whether\n\nhis speech amounted to “a threat, coercion, or intimidation intimating that\n\npunishment, sanctions, or adverse regulatory action will imminently follow,” as\n\nseveral of our sister circuits have done in similar cases. See, e.g., Suarez Corp., 202\n\nF.3d at 687 (collecting cases); see also Mirabella v. Villard, 853 F.3d 641, 651 (3d\n\nCir. 2017); Mulligan v. Nichols, 835 F.3d 983, 990 (9th Cir. 2016); Goldstein v.\n\nGalvin, 719 F.3d 16, 30 (1st Cir. 2013); Hutchins v. Clarke, 661 F.3d 947, 956 (7th\n\nCir. 2011); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir. 1999); Colson v.\n\nGrohman, 174 F.3d 498, 512 (5th Cir. 1999); Penthouse Int’l, Ltd. v. Meese, 939\n\nF.2d 1011, 1015 (D.C. Cir. 1991). Our sister circuits have required that an\n\nofficial’s retaliatory speech amount to a threat, coercion, or intimidation to\n\nreconcile two competing rights: a plaintiff’s right to be free from retaliation for\n\nexercising his First Amendment rights and an official’s right to engage in protected\n\nspeech. Suarez Corp., 202 F.3d at 687 n.13. But we need not resolve the difficult\n\nquestion whether that test strikes the right balance under the First Amendment in\n\nthis appeal.\n\n Echols argues that Lawton’s speech presents an easier case because it\n\namounted to defamation. Defamation is among the “historic and traditional\n\ncategories of expression long familiar to the bar” that fall outside the protection of\n\nthe First Amendment. United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality\n\n\n\n 9\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 10 of 26\n\n\nopinion) (alteration adopted) (citation and internal quotation marks omitted).\n\nEchols maintains that Lawton’s defamation of him raises no concerns about\n\ncompeting First Amendment rights.\n\n Echols’s argument that Lawton defamed him raises two questions. First,\n\ndoes Lawton’s alleged speech qualify as defamation? Second, if so, does the First\n\nAmendment protect it?\n\n To state a claim for defamation under Georgia law, a plaintiff must allege\n\n“(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged\n\ncommunication to a third party; (3) fault by the defendant amounting at least to\n\nnegligence; and (4) special harm or the actionability of the statement irrespective\n\nof special harm.” Mathis v. Cannon, 573 S.E.2d 376, 380 (Ga. 2002) (quoting\n\nRestatement (Second) of Torts § 558 (Am. Law Inst. 1977)). A statement is not\n\nactionable as defamation when it conveys a pure opinion, Gast v. Brittain, 589\n\nS.E.2d 63, 64 (Ga. 2003), or a true statement of fact, O.C.G.A. § 51-5-6. When we\n\nconsider whether a statement is defamatory, we “read and construe the publication\n\nas a whole, and in the sense in which the readers to whom it is addressed would\n\nunderstand it.” Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)\n\n(citing Mead v. True Citizen, Inc., 417 S.E.2d 16, 17 (Ga. Ct. App. 1992)).\n\n Libel consists of the publication of defamatory statements in writing,\n\nO.C.G.A. § 51-5-1, and some written statements are libel per se. Libel per se is\n\n\n\n 10\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 11 of 26\n\n\nactionable without proof of special harm. Cottrell v. Smith, 788 S.E.2d 772, 780–\n\n81 (Ga. 2016).\n\n Libel per se includes “falsely stat[ing] . . . that a person has a criminal case\n\npending against him.” Harcrow, 511 S.E.2d at 546; Witham v. Atlanta Journal, 53\n\nS.E. 105, 107 (Ga. 1906) (explaining that a statement that “in effect charges that\n\nthere are criminal cases pending against [the plaintiff]” is libel per se (internal\n\nquotation marks omitted)); see also Cottrell, 788 S.E.2d at 780–81 (explaining that\n\na false statement imputing a crime to the plaintiff is libel per se). To establish libel\n\nper se, the statement “must charge the commission of a specific crime punishable\n\nby law” by “giv[ing] the impression that the crime is actually being charged\n\nagainst the individual.” Cottrell, 788 S.E.2d at 781.\n\n Echols’s complaint alleges facts that would constitute libel per se. It alleges\n\nthat Lawton falsely stated in writing that Echols remained under indictment for\n\nkidnapping and rape. To be sure, some of Lawton’s written statements convey\n\neither his opinion or true statements of fact, but the legislators to whom Lawton\n\naddressed his alleged writing would have understood it to state as a fact that Echols\n\nstood charged of kidnapping and rape. That alleged statement was false because a\n\nGeorgia court had dismissed the indictment against Echols four years earlier. By\n\nfalsely stating that Echols “ha[d] a criminal case pending against him,” Lawton\n\n\n\n\n 11\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 12 of 26\n\n\nallegedly committed libel per se. Harcrow, 511 S.E.2d at 546. And libel per se is\n\nactionable irrespective of special harm. Cottrell, 788 S.E.2d at 780–81.\n\n Because Echols’s complaint alleges that Lawton committed libel per se, we\n\nnext consider whether the alleged defamation is nevertheless protected by the First\n\nAmendment. Defamation is unprotected when the speaker committed the tort with\n\nactual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)\n\n(holding that a public official or public figure can recover damages for defamation\n\non a matter of public concern only if he proves that the speaker acted with actual\n\nmalice); Gertz v. Robert Welch, Inc., 418 U.S. 323, 348–49 (1974) (holding that,\n\nalthough a private figure can recover damages for defamation if he proves the\n\nspeaker acted negligently, he must prove actual malice to recover presumed or\n\npunitive damages if the statement was on a matter of public concern). Actual\n\nmalice exists when the speaker has knowledge that the statement is false or when\n\nhe speaks with reckless disregard for whether it is false. Sullivan, 376 U.S. at 280.\n\n Even if we were to assume that Echols was a public figure or that Lawton\n\nspoke about a matter of public concern, Echols’s complaint alleges that Lawton\n\ndefamed him with actual malice. The complaint alleges that Lawton knew his\n\nstatement that Echols remained under indictment was false because Lawton’s\n\noffice had dismissed the charges against him after he presented DNA evidence to\n\nLawton and the state crime lab confirmed the results of the DNA test. Indeed, after\n\n\n\n 12\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 13 of 26\n\n\nLawton declined to retry Echols, a Georgia court dismissed the indictment against\n\nhim. Because the complaint alleges that Lawton knew that Echols no longer\n\nremained under indictment for kidnapping and rape, Lawton’s alleged defamatory\n\nstatement was made with actual malice.\n\n The First Amendment affords no protection to Lawton’s alleged libel of\n\nEchols, so no “balance must be struck” here between the First Amendment rights\n\nof a plaintiff alleging retaliation for his speech and an official who allegedly\n\nretaliated through his own speech. Suarez Corp., 202 F.3d at 687 n.13. We must\n\ninstead determine only whether Lawton’s alleged libel violated Echols’s rights\n\nunder the First Amendment.\n\n We acknowledge that some of our sister circuits have held that defamation\n\nis not actionable as retaliation in violation of the First Amendment, but their\n\ndecisions do not persuade us. These circuits have held that an official’s defamatory\n\nspeech by itself cannot constitute retaliation in violation of the First Amendment.\n\nSee id. at 687 (holding that an official’s speech, “even if defamatory,” does not\n\namount to retaliation unless it is a threat, coercion, or intimidation); Colson, 174\n\nF.3d at 512 (holding that allegedly defamatory accusations, “while they may chill\n\nspeech, are not actionable under our First Amendment retaliation jurisprudence”);\n\nGini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 (9th Cir. 1994). The\n\ndecisions of both the Fourth and the Fifth Circuits provide little explanation for\n\n\n\n 13\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 14 of 26\n\n\ntheir reasoning, but they appear to rest on a misreading of Paul v. Davis, 424 U.S.\n\n693 (1976), that originated in the Ninth Circuit, see Suarez Corp., 202 F.3d at 687,\n\n688 & n.14; Colson, 174 F.3d at 512, 514 & n.10; Gini, 40 F.3d at 1045. In Gini,\n\nthe Ninth Circuit held that, under Paul, defamation is not actionable as retaliation\n\nabsent harm to a more tangible interest than reputation. 40 F.3d at 1045. But in\n\nPaul, the Supreme Court addressed a distinct issue; it held that defamation\n\nstanding alone cannot deprive a plaintiff of his right to due process. 424 U.S. at\n\n712. And whether defamation may constitute a violation of procedural due process\n\ndoes not dictate whether it can constitute retaliation in violation of the First\n\nAmendment. “The fact that reputation, the interest that the law of defamation\n\nprimarily protects, is not a form of constitutional liberty or property [under the Due\n\nProcess Clause] doesn’t mean that freedom of speech is not a constitutionally\n\nprotected liberty—as of course it is.” Tierney v. Vahle, 304 F.3d 734, 741 (7th Cir.\n\n2002) (rejecting the Ninth Circuit’s reasoning in Gini).\n\n We reject the notion that the First Amendment protects an official’s\n\ndefamatory speech from a claim of retaliation. After a plaintiff engages in\n\nprotected speech, an official may retaliate with physical or economic harm, but he\n\nmay also retaliate with injurious speech. We agree with other circuits that\n\nsometimes “defamation inflicts sufficient harm on its victim to count as\n\nretaliation.” Id.; see also Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir. 2010); Mattox\n\n\n\n 14\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 15 of 26\n\n\nv. City of Forest Park, 183 F.3d 515, 521 & n.3 (6th Cir. 1999). To decide whether\n\ndefamation in a particular case is retaliatory, the Sixth and Eighth Circuits apply\n\nthe same test of ordinary firmness as they would for any other claim of retaliation.\n\nSee Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005) (“[T]he appropriate\n\nformulation of the ‘adverse action’ prong in [this] case is whether the alleged\n\ndefamation would deter [a person] of ordinary firmness [in the plaintiff’s position]\n\nfrom continuing [to engage in protected speech].”); see also Zutz, 601 F.3d at 849\n\n(applying the ordinary firmness test to retaliation based on an official’s alleged\n\ndefamation). We agree with this approach and decline to create special rules for\n\nclaims of retaliation based on an official’s defamation.\n\n We next consider whether Lawton’s alleged libel per se would have deterred\n\na person of ordinary firmness from exercising his rights under the First\n\nAmendment. See Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005); see,\n\ne.g., Bloch v. Ribar, 156 F.3d 673, 681 (6th Cir. 1998) (holding that, in response to\n\na rape victim’s criticism of the investigation, a sheriff’s release of confidential and\n\nhumiliating information about the victim’s rape would likely deter a person of\n\nordinary firmness from engaging in protected speech). An objective standard\n\ngoverns our inquiry. Bailey, 843 F.3d at 481. And “since there is no justification\n\nfor harassing people for exercising their constitutional rights,” the adverse effect\n\n“need not be great.” Bennett, 423 F.3d at 1254 (citation omitted).\n\n\n\n 15\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 16 of 26\n\n\n Lawton’s alleged libel per se that Echols remained under indictment would\n\nlikely deter a person of ordinary firmness from engaging in protected speech.\n\nWhen Echols exercised his freedom of speech and right to petition the government\n\nby seeking compensation for his wrongful convictions, Lawton allegedly retaliated\n\nby defaming him. Lawton allegedly misled legislators to believe, as a matter of\n\nfact, that Echols remained under indictment for kidnapping and rape—the very\n\ncharges for which Echols had been wrongly convicted. Lawton, more than any\n\nother official, spoke with authority and credibility because he represented the state\n\nin its earlier prosecution of Echols for kidnapping and rape and continued to hold\n\nthat office. But Lawton allegedly knew that the state had entered a nolle prosequi\n\non these charges four years earlier. See State v. Sheahan, 456 S.E.2d 615, 617 (Ga.\n\nCt. App. 1995) (“The entry of the nolle prosequi rendered the charge[s]\n\ndead . . . .”). If a district attorney defamed a former prisoner for seeking legislative\n\ncompensation for his wrongful convictions and derailed that legislative effort, a\n\nperson of ordinary firmness would likely be deterred from speaking again on that\n\nmatter lest the prosecutor continue to tarnish his reputation or, worse, initiate a\n\nwrongful prosecution. So Echols’s complaint states a claim of retaliation under the\n\nFirst Amendment.\n\n\n\n\n 16\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 17 of 26\n\n\n 2. Lawton Did Not Violate a First Amendment Right That Was Clearly\n Established.\n\n To defeat Lawton’s qualified immunity, Echols must also prove that Lawton\n\nviolated a constitutional right that “was ‘clearly established’ at the time of the\n\nchallenged conduct.” Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (quoting al-\n\nKidd, 563 U.S. at 735). An official’s conduct violates clearly established law when\n\n“the contours of [the] right are sufficiently clear that every reasonable official\n\nwould have understood that what he is doing violates that right.” al-Kidd, 563 U.S.\n\nat 741 (alterations adopted) (quoting Anderson v. Creighton, 483 U.S. 635, 640\n\n(1987)). We consider the official’s conduct in “the specific context of the case,”\n\nnot as “broad general proposition[s].” Bailey, 843 F.3d at 484; see also al-Kidd,\n\n563 U.S. at 742 (“We have repeatedly told courts . . . not to define clearly\n\nestablished law at a high level of generality.”). And we ask the “salient\n\nquestion . . . whether the state of law at the time of [an official’s conduct] provided\n\n‘fair warning,’” to every reasonable official that the conduct clearly violates the\n\nConstitution. Mikko, 857 F.3d at 1146.\n\n Echols can “demonstrate that the contours of the right were clearly\n\nestablished in one of three ways.” Loftus v. Clark-Moore, 690 F.3d 1200, 1204\n\n(11th Cir. 2012) (alteration adopted) (citation and internal quotation marks\n\nomitted). First, he can point us to a “materially similar case [that] has already been\n\ndecided.” Id. (citation and quotation marks omitted). Second, he can point us to “a\n\n 17\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 18 of 26\n\n\nbroader, clearly established principle that should control the novel facts of the\n\nsituation.” Id. (alterations adopted). Third, “the conduct involved in the case may\n\nso obviously violate the [C]onstitution that prior case law is unnecessary.” Id. at\n\n1205 (alterations adopted). Echols’s arguments fail under all of these approaches.\n\n Echols contends that an assortment of decisions clearly established Lawton’s\n\nviolation of his rights, but he cites no controlling precedent that would have\n\nprovided Lawton fair notice that his conduct would violate the First Amendment.\n\nAlthough “[w]e do not require a case directly on point, [some] existing precedent\n\nmust have placed the . . . constitutional question beyond debate.” al-Kidd, 563 U.S.\n\nat 741. We look only to binding precedent at the time of the challenged conduct—\n\nthat is, “the decisions of the Supreme Court, the Eleventh Circuit, or the highest\n\ncourt of the state.” Bailey, 843 F.3d at 483–84. And a clearly established violation\n\nof state law cannot put an official on notice that his conduct would also violate the\n\nConstitution because “section 1983 protects only against violations of federally\n\nprotected rights.” Casnines v. Murchek, 766 F.2d 1494, 1501 n.10 (11th Cir. 1985).\n\n Echols relies either on precedents that are inapposite, see, e.g., United States\n\nv. Noriega, 117 F.3d 1206, 1220 (11th Cir. 1997) (discussing a prosecutor’s duty\n\nnot to present false evidence during a judicial proceeding), or on decisions that are\n\nnot precedential, see, e.g., Lucas v. Parish of Jefferson, 999 F. Supp. 839 (E.D. La.\n\n1998). And he relies on decisions from other jurisdictions, some of which even\n\n\n\n 18\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 19 of 26\n\n\npostdate Lawton’s alleged violation, see, e.g., Whitlock v. Brueggemann, 682 F.3d\n\n567, 581 (7th Cir. 2012). Although Lawton clearly would have had fair notice that\n\nhis alleged writing constituted libel per se under state tort law, he would not have\n\nunderstood that his alleged libel would have violated the First Amendment. No\n\ncontrolling precedent put Lawton’s alleged violation beyond debate.\n\n Echols also relies on the broader principle “that the act of retaliation for the\n\nexercise of constitutional rights is clearly established as a violation,” but this\n\ngeneral principle is too broadly stated to control our inquiry. “[S]ome broad\n\nstatements of principle in case law [that] are not tied to particularized facts . . . can\n\nclearly establish law applicable in the future to different sets of detailed facts.”\n\nVinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). But the principle must\n\nestablish with “obvious clarity” that “in the light of pre-existing law the\n\nunlawfulness [of the official’s conduct is] apparent.” Id. at 1353. True, “it is\n\n‘settled law’ that the government may not retaliate against citizens for the exercise\n\nof First Amendment rights.” Bennett, 423 F.3d at 1256. But that general principle\n\ndoes not resolve with “obvious clarity” that defamation may constitute retaliation\n\nin violation of the First Amendment. See also Reichle v. Howards, 566 U.S. 658,\n\n665 (2012) (rejecting the argument that “the general right to be free from\n\nretaliation for one’s speech” clearly establishes a violation of the First\n\nAmendment).\n\n\n\n 19\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 20 of 26\n\n\n Echols also fails to persuade us that Lawton’s conduct “so obviously\n\nviolate[d] the [C]onstitution that prior case law is unnecessary.” Loftus, 690 F.3d at\n\n1205. “This narrow category encompasses those situations where the official’s\n\nconduct lies so obviously at the very core of what the relevant constitutional\n\nprovision prohibits that the unlawfulness of the conduct was readily apparent to the\n\nofficial, notwithstanding the lack of case law.” Id. (alteration adopted) (internal\n\nquotation marks omitted) (quoting Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir.\n\n2012)). “[I]n the absence of controlling precedent, cases decided outside this\n\nCircuit can buttress our view that the applicable law was not already clearly\n\nestablished” because “[w]e must not hold [officials] to a higher standard of legal\n\nknowledge than that displayed by the federal courts in reasonable and reasoned\n\ndecisions.” Youmans v. Gagnon, 626 F.3d 557, 565 (11th Cir. 2010).\n\n Lawton’s conduct does not fall within this “narrow category.” As we have\n\nexplained, our sister circuits are divided over whether an official’s defamatory\n\nspeech is actionable as retaliation under the First Amendment. It has certainly not\n\nbeen obvious to the federal courts that an official’s defamatory speech lies at the\n\ncore of what the First Amendment prohibits. “[W]here judges thus disagree on a\n\nconstitutional question,” we cannot “expect that reasonable [officials] know more\n\nthan reasonable judges about the law.” Id. (citations and quotation marks omitted).\n\n\n\n\n 20\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 21 of 26\n\n\nSo we cannot say that it would have been “readily apparent” to every reasonable\n\nofficial that Lawton’s alleged defamation violated the First Amendment. Id.\n\n Critics of the doctrine of qualified immunity condemn “letting [an] official\n\nduck consequences for bad behavior.” Zadeh v. Robinson, 902 F.3d 483, 498\n\n(Willett, J., concurring dubitante) (5th Cir. 2018); William Baude, Is Qualified\n\nImmunity Unlawful?, 106 Calif. L. Rev. 45 (2018). And we too condemn Lawton’s\n\nalleged conduct. But the Supreme Court has long ruled that qualified immunity\n\nprotects a badly behaving official unless he had fair notice that his conduct would\n\nviolate the Constitution, District of Columbia v. Wesby, 138 S. Ct. 577, 589–91\n\n(2018); Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018), though at least one justice\n\nmay harbor doubts, see Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J.,\n\nconcurring in part and in the judgment) (“In an appropriate case, we should\n\nreconsider our qualified immunity jurisprudence.”). “Because the Constitution’s\n\ngeneral provisions can be abstract,” fair notice protects an official from “liab[ility]\n\nfor conduct that [he could] reasonably believe[] was lawful.” Aaron L. Nielson &\n\nChristopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame\n\nL. Rev. 1853, 1873 (2018). So even when an official behaves badly, “qualified\n\nimmunity gives government officials breathing room to make reasonable but\n\nmistaken judgments about open legal questions.” al-Kidd, 563 U.S. at 743.\n\n\n\n\n 21\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 22 of 26\n\n\n Recall that the Constitution does not provide the only standard for redress\n\nfor those wronged by public officials. For example, Lawton’s alleged conduct\n\ncould have been reviewed and sanctioned by the State Bar. See Ga. R. Prof’l\n\nConduct 3.8(g), 8.4. Echols could have also filed a claim under state tort law\n\nagainst Lawton. See Cottrell, 788 S.E.2d at 780–81. But Echols chose to frame his\n\ncomplaint as a federal case alleging a violation of the Constitution, 42 U.S.C. §\n\n1983.\n\n Section 1983 is not a “font of tort law [that] converts [every] state law tort\n\nclaim[] into [a] federal cause[] of action.” Waddell, 329 F.3d at 1305 (citation and\n\ninternal quotation marks omitted). When a plaintiff complains that a public official\n\nhas violated the Constitution, qualified immunity shields the official from\n\nindividual liability unless he had fair notice that his alleged conduct would violate\n\n“the supreme Law of the Land.” U.S. Const. Art. VI. Because Lawton lacked that\n\nfair notice, he enjoys qualified immunity from Echols’s claim of retaliation.\n\n B. Lawton Enjoys Qualified Immunity from Echols’s Claim Under the Due\n Process Clause.\n\n We also agree with the district court that Lawton enjoys qualified immunity\n\nfrom Echols’s claim that Lawton violated his right to substantive due process, but\n\nwe again do so for a different reason. The district court ruled that Echols failed to\n\nstate a claim under the standards that govern substantive due process because\n\nEchols failed to allege either a violation of a fundamental liberty or government\n\n 22\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 23 of 26\n\n\nconduct that shocks the conscience, but Echols’s claim fails for a simpler reason:\n\nthe text of the First Amendment sets the specific standard for it. As we have\n\nalready explained, the First Amendment protects Echols’s right to be free from\n\nretaliation by Lawton, a public official, for the exercise of Echols’s right to speak.\n\nSee Bailey, 843 F.3d at 480–81. And the Due Process Clause cannot be used to\n\nsupplement that substantive right.\n\n “Where a particular Amendment provides an explicit textual source of\n\nconstitutional protection against a particular sort of government behavior, that\n\nAmendment, not the more generalized notion of substantive due process, must be\n\nthe guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U.S.\n\n833, 842 (1998) (alteration omitted) (quoting Albright v. Oliver, 510 U.S. 266, 273\n\n(1994) (plurality opinion)); see also Graham v. Connor, 490 U.S. 386, 395 (1989).\n\nIn the Bill of Rights, the “Framers sought to restrict the exercise of arbitrary\n\nauthority by the [g]overnment in particular situations.” Albright, 510 U.S. at 273\n\n(plurality opinion). So when the Framers considered a matter and drafted an\n\namendment to address it, id. at 274, a substantive-due-process analysis is\n\ninappropriate, Lewis, 523 U.S. at 843. We must “analyze[] [the claim] under the\n\nstandard appropriate to that specific provision, not under the rubric of substantive\n\ndue process.” Lewis, 523 U.S. at 843 (quoting United States v. Lanier, 520 U.S.\n\n259, 272 n.7 (1997)).\n\n\n\n 23\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 24 of 26\n\n\n The district court’s error was understandable. Confusion in jurisprudence\n\nthat can be fairly described as untethered from the text of the Constitution—on its\n\nface, after all, “the Due Process Clause guarantees no substantive rights, but only\n\n(as it says) process,” United States v. Carlton, 512 U.S. 26, 40 (1994) (Scalia, J.,\n\nconcurring in the judgment)—should not be surprising. For that reason, the\n\nSupreme Court has been “reluctant to expand the concept of substantive due\n\nprocess.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992). So where, as here,\n\na specific constitutional provision covers a plaintiff’s claim, the requirements of\n\nthat provision “are not to be supplemented through the device of ‘substantive due\n\nprocess.’” Albright, 510 U.S. at 276 (Scalia, J., concurring).\n\n IV. CONCLUSION\n\n We AFFIRM the judgment in favor of Lawton.\n\n\n\n\n 24\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 25 of 26", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362133/", "author_raw": "WILLIAM PRYOR, Circuit Judge:"}, {"author": "GILMAN, Circuit Judge, concurring", "type": "concurrence", "text": "GILMAN, Circuit Judge, concurring:\n\n I fully concur in the lead opinion’s holding that Echols’s complaint states a\n\nvalid claim of retaliation under the First Amendment. Reluctantly, I also agree that\n\nLawton is entitled to qualified immunity on this claim because the then-existing\n\nlaw in the Eleventh Circuit did not clearly establish that Lawton’s egregious\n\nconduct violated Echols’s constitutional rights. Several pertinent cases from other\n\ncircuits hold that defamatory speech by a public official does not constitute First\n\nAmendment retaliation “in the absence of a threat, coercion, or intimidation,” see,\n\ne.g., Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000), and none\n\nof these actions were attributed to Lawton in Echols’s complaint. And although\n\nauthority exists to the contrary, see, e.g., Tierney v. Vahle, 304 F.3d 734, 740 (7th\n\nCir. 2002) (concluding that “defamation inflicts sufficient harm on its victim to\n\ncount as retaliation [and thus] be capable of deterring the exercise of free speech”),\n\nthe Eleventh Circuit has not previously opined one way or the other on this issue.\n\nThis lack of consensus supports the proposition that Lawton’s defamatory\n\nstatement that Echols was still under indictment for kidnapping and rape, as\n\nvindictive and unjustified as that statement appears to be, was not a clearly\n\nestablished violation of Echols’s First Amendment rights.\n\n I further agree with the lead opinion’s conclusion that clear Supreme Court\n\nprecedent prevents Echols from invoking the rubric of substantive due process as a\n\n\n\n 25\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 26 of 26\n\n\nbasis to hold Lawton accountable for a First Amendment violation. But for this\n\nbinding precedent, I would have concluded that Lawton’s statement “shocks the\n\nconscience.” An official’s conduct most likely shocks the conscience—and thus\n\nviolates an individual’s substantive-due-process rights—if the conduct was\n\n“intended to injure in some way unjustifiable by any government interest.” Davis\n\nv. Carter, 555 F.3d 979, 982 (11th Cir. 2009) (emphasis added) (citation omitted).\n\n As applied to the present case, there can be no doubt that Lawton’s false\n\nstatement to the Georgia legislature that Echols was still under indictment for\n\nkidnapping and rape was intended to injure Echols. This leaves the question of\n\nwhat possible governmental interest justified Lawton in making that libelous\n\nstatement. I can think of none. Nor has any such justification been articulated by\n\neither Lawton or the district court. I suggest that this total silence is due to the fact\n\nthat no such justification exists.\n\n In any event, we are bound by Supreme Court precedent from providing\n\nrelief to Echols on the basis of substantive due process. My only comfort with this\n\nresult is knowing that if another official in this circuit henceforth engages in\n\nconduct similar to Lawton’s, he or she will not be entitled to hide behind the\n\ndoctrine of qualified immunity.\n\n\n\n\n 26", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362133/", "author_raw": "GILMAN, Circuit Judge, concurring"}]} | TJOFLAT | PRYOR | GILMAN | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584880/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Douglas ECHOLS, Plaintiff-Appellant, v. Spencer LAWTON, in His Individual Capacity, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13843 Date Filed: 01/25/2019 Page: 1 of 26\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13843\n ________________________\n\n D.C. Docket No. 4:08-cv-00023-WTM-GRS\n\n\n\nDOUGLAS ECHOLS,\n\n Plaintiff-Appellant,\n versus\n\nSPENCER LAWTON,\nin his individual capacity,\n\n Defendant-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Georgia\n _______________________\n\n (January 25, 2019)\n\nBefore TJOFLAT, WILLIAM PRYOR, and GILMAN, * Circuit Judges.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n\n*\n Honorable Ronald L. Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 2 of 26\n\n\n This appeal requires us to decide whether a district attorney enjoys qualified\n\nimmunity from a complaint that he defamed a former prisoner in retaliation for\n\nseeking legislative compensation for his wrongful convictions. After Douglas\n\nEchols served seven years of imprisonment for kidnapping and rape, a test revealed\n\nthat his DNA did not match the semen recovered from the victim. Echols presented\n\nthis evidence to Spencer Lawton, the local district attorney, who had a state crime\n\nlab confirm the test results. A Georgia trial court later vacated Echols’s\n\nconvictions. After Lawton declined to retry Echols, the trial court dismissed the\n\nindictment against him. A state legislator then introduced a bill to compensate\n\nEchols for his wrongful convictions. But Lawton wrote in opposition to the bill and\n\nallegedly falsely stated that Echols remained under indictment—a libel per se. See\n\nHarcrow v. Struhar, 511 S.E.2d 545, 546 (Ga. Ct. App. 1999). After the bill failed,\n\nEchols sued Lawton for violating his rights under the First and Fourteenth\n\nAmendments, 42 U.S.C. § 1983. The district court dismissed Echols’s complaint\n\nbased on qualified immunity. Although we conclude that Echols’s complaint states\n\na valid claim of retaliation under the First Amendment, we agree with the district\n\ncourt that Lawton enjoys qualified immunity because Echols’s right was not\n\nclearly established when Lawton violated it. We affirm.\n\n\n\n\n 2\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 3 of 26\n\n\n I. BACKGROUND\n\n In 1986, three unknown assailants kidnapped and raped Donna Givens in\n\nSavannah, Georgia. Although Douglas Echols professed his innocence, a jury\n\nconvicted him of the kidnapping and rape of Givens. He was sentenced to 15 years\n\nof imprisonment.\n\n After Echols served seven years of his sentence, a DNA test revealed that\n\nthe semen recovered from Givens did not match Echols’s DNA. Echols presented\n\nthis evidence to Spencer Lawton, the district attorney for Chatham County, who\n\nalso served in that role when Echols was convicted. Lawton ordered the state crime\n\nlab to conduct additional testing, which confirmed that the semen was not from\n\nEchols.\n\n A Georgia trial court then vacated Echols’s convictions and granted him a\n\nnew trial. Instead of retrying Echols, the state entered a nolle prosequi on the\n\ncharges of kidnapping and rape, and the trial court dismissed the indictment against\n\nhim.\n\n Four years later, after the Georgia Claims Advisory Board recommended\n\ncompensation for Echols, a legislator in the Georgia General Assembly introduced\n\na bill to compensate him with $1.6 million for his wrongful convictions. But before\n\nthe General Assembly voted on the bill, Lawton sent a letter and memorandum to\n\nseveral legislators opposing Echols’s compensation. Echols “was informed by the\n\n\n\n 3\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 4 of 26\n\n\nlegislature that [the bill] would not pass specifically due to . . . Lawton’s\n\ncorrespondence.” Indeed, the legislators with whom Lawton corresponded blocked\n\nthe bill from reaching the floor of the General Assembly, and the bill failed.\n\n Echols then filed a complaint against Lawton, which he later amended. In\n\nhis amended complaint, Echols alleged that Lawton violated his rights under the\n\nFirst and Fourteenth Amendments, 42 U.S.C. § 1983, by providing “false\n\ninformation” and “intentionally misleading legal advice” to the legislators. Echols\n\nalleged that Lawton told the legislators that Echols’s convictions “were proper and\n\nfitting, even though [his] conviction[s] had been vacated.” Lawton also told the\n\nlegislators not to presume Echols innocent of kidnapping and rape because the\n\nvacatur of his convictions did not establish his innocence. Lawton urged the\n\nlegislators not to compensate Echols unless he proved his innocence. And Lawton\n\ntold the legislators that Echols remained under indictment for kidnapping and rape\n\neven though the indictment had been dismissed four years earlier when the state\n\nentered a nolle prosequi on the charges. Echols complained that Lawton interfered\n\nwith his freedom of speech and right to petition the government and retaliated\n\nagainst him for exercising those rights. And Echols complained that Lawton\n\nviolated his right to due process of law by depriving him of a presumption of\n\ninnocence.\n\n\n\n\n 4\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 5 of 26\n\n\n The district court granted Lawton’s motion to dismiss Echols’s complaint.\n\nThe district court ruled that Echols’s complaint failed to state a claim under either\n\nthe First or Fourteenth Amendments. It ruled that Lawton’s letter did not amount to\n\na threat, coercion, or intimidation, so Echols failed to state a claim of First\n\nAmendment retaliation. And it ruled that Echols failed to state a claim under the\n\nDue Process Clause of the Fourteenth Amendment because he failed to allege\n\neither a violation of a fundamental liberty or government conduct that shocks the\n\nconscience. The district court also ruled that Lawton enjoys qualified immunity\n\nbecause Echols’s complaint failed to allege the violation of a right that was clearly\n\nestablished when Lawton sent his letter.\n\n II. STANDARD OF REVIEW\n\n We review de novo a dismissal of a complaint for failure to state a claim.\n\nMills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008). We accept the\n\nfactual allegations in the complaint as true and construe them in the light most\n\nfavorable to the plaintiff. Id. “To survive a motion to dismiss, a complaint must\n\ncontain sufficient factual matter, accepted as true, to ‘state a claim to relief that is\n\nplausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell\n\nAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We also review de novo a grant\n\nof qualified immunity. Courson v. McMillian, 939 F.2d 1479, 1486 (11th Cir.\n\n1991).\n\n\n\n 5\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 6 of 26\n\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that Lawton enjoys\n\nqualified immunity from the claim that he retaliated against Echols for exercising\n\nhis rights under the First Amendment. Second, we explain that Lawton also enjoys\n\nqualified immunity from the claim that he violated Echols’s right to due process of\n\nlaw because the general rubric of substantive due process cannot be used to govern\n\na claim that is otherwise covered by the specific text of the First Amendment.\n\n A. Lawton Enjoys Qualified Immunity from Echols’s Claim of Retaliation\n Under the First Amendment.\n\n Lawton contends that he is entitled to qualified immunity from Echols’s\n\ncomplaint of retaliation in violation of the First Amendment. “Qualified immunity\n\nshields public officials from liability for civil damages when their conduct does not\n\nviolate a constitutional right that was clearly established at the time of the\n\nchallenged action.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). To\n\nobtain a dismissal based on qualified immunity, “a government official must first\n\nestablish that he was acting within the scope of his discretionary authority when\n\nthe alleged wrongful act occurred.” Id. If he was, the burden then shifts to the\n\nplaintiff to overcome the official’s qualified immunity. Mikko v. City of Atlanta,\n\n857 F.3d 1136, 1144 (11th Cir. 2017). To overcome qualified immunity, a plaintiff\n\nmust “plead[] facts showing (1) that the official violated a statutory or\n\n\n\n\n 6\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 7 of 26\n\n\nconstitutional right, and (2) that the right was ‘clearly established’ at the time of\n\nthe challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).\n\n Echols argues that Lawton acted outside the scope of his discretionary\n\nauthority when he sent the letter to the legislators, but we disagree. To be sure, “[a]\n\nprosecutor’s most basic duty is to prosecute cases in his jurisdiction on behalf of\n\nthe State.” Mikko, 857 F.3d at 1144. But we have explained “[r]elated to that duty,”\n\na prosecutor’s discretionary authority also includes “communicat[ions] with other\n\nlaw enforcement agencies, officials, or employees about current or potential\n\nprosecutions.” Id. Prosecutors must and do regularly communicate with legislators\n\nabout a variety of issues related to their offices and the criminal justice system.\n\nThose issues may involve administrative and financial matters, public safety and\n\ncriminal justice policies, and past, pending, or future prosecutions. Lawton’s letter\n\naddressed the public fisc and both a past prosecution and a potential future\n\nprosecution, so his communication with legislators was clearly “within, or\n\nreasonably related to the outer perimeter of [his] discretionary duties.” Id.\n\n(emphasis omitted) (citation omitted). Because Lawton satisfied his initial burden\n\nto invoke qualified immunity, the burden shifted to Echols.\n\n We agree with the district court that Lawton enjoys qualified immunity from\n\nEchols’s complaint, but we do so for a different reason. In contrast with the district\n\ncourt, we conclude that Echols’s complaint states a valid claim that Lawton\n\n\n\n 7\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 8 of 26\n\n\nviolated a right protected by the First Amendment. But even so, that right was not\n\nclearly established when Lawton allegedly violated it.\n\n 1. Echols Stated a Claim of Retaliation in Violation of the First Amendment.\n\n The First Amendment provides that “Congress shall make no\n\nlaw . . . abridging the freedom of speech, or . . . the right . . . to petition the\n\ngovernment for a redress of grievances.” U.S. Const. Amend. I. The Amendment\n\nprotects “not only the affirmative right to speak, but also the right to be free from\n\nretaliation by a public official for the exercise of that right.” Suarez Corp. Indus. v.\n\nMcGraw, 202 F.3d 676, 685 (4th Cir. 2000). To state a claim for First Amendment\n\nretaliation, a plaintiff must allege that he engaged in protected speech, that the\n\nofficial’s conduct adversely affected the protected speech, and that a causal\n\nconnection exists between the speech and the official’s retaliatory conduct. Bailey,\n\n843 F.3d at 480–81. Only the second element is at issue in this appeal.\n\n When reviewing an official’s retaliatory conduct for adverse effect, we\n\nconsider whether his alleged conduct “would likely deter a person of ordinary\n\nfirmness from the exercise of First Amendment rights,” id. at 481, but we have\n\nacknowledged that special concerns arise when an official’s “own First\n\nAmendment rights are implicated” in the commission of an alleged constitutional\n\ntort, Dixon v. Burke Cty., 303 F.3d 1271, 1275 (11th Cir. 2002) (citing Suarez\n\nCorp., 202 F.3d at 687). Because Lawton allegedly retaliated through his own\n\n\n\n 8\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 9 of 26\n\n\nspeech to members of the General Assembly, the district court considered whether\n\nhis speech amounted to “a threat, coercion, or intimidation intimating that\n\npunishment, sanctions, or adverse regulatory action will imminently follow,” as\n\nseveral of our sister circuits have done in similar cases. See, e.g., Suarez Corp., 202\n\nF.3d at 687 (collecting cases); see also Mirabella v. Villard, 853 F.3d 641, 651 (3d\n\nCir. 2017); Mulligan v. Nichols, 835 F.3d 983, 990 (9th Cir. 2016); Goldstein v.\n\nGalvin, 719 F.3d 16, 30 (1st Cir. 2013); Hutchins v. Clarke, 661 F.3d 947, 956 (7th\n\nCir. 2011); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir. 1999); Colson v.\n\nGrohman, 174 F.3d 498, 512 (5th Cir. 1999); Penthouse Int’l, Ltd. v. Meese, 939\n\nF.2d 1011, 1015 (D.C. Cir. 1991). Our sister circuits have required that an\n\nofficial’s retaliatory speech amount to a threat, coercion, or intimidation to\n\nreconcile two competing rights: a plaintiff’s right to be free from retaliation for\n\nexercising his First Amendment rights and an official’s right to engage in protected\n\nspeech. Suarez Corp., 202 F.3d at 687 n.13. But we need not resolve the difficult\n\nquestion whether that test strikes the right balance under the First Amendment in\n\nthis appeal.\n\n Echols argues that Lawton’s speech presents an easier case because it\n\namounted to defamation. Defamation is among the “historic and traditional\n\ncategories of expression long familiar to the bar” that fall outside the protection of\n\nthe First Amendment. United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality\n\n\n\n 9\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 10 of 26\n\n\nopinion) (alteration adopted) (citation and internal quotation marks omitted).\n\nEchols maintains that Lawton’s defamation of him raises no concerns about\n\ncompeting First Amendment rights.\n\n Echols’s argument that Lawton defamed him raises two questions. First,\n\ndoes Lawton’s alleged speech qualify as defamation? Second, if so, does the First\n\nAmendment protect it?\n\n To state a claim for defamation under Georgia law, a plaintiff must allege\n\n“(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged\n\ncommunication to a third party; (3) fault by the defendant amounting at least to\n\nnegligence; and (4) special harm or the actionability of the statement irrespective\n\nof special harm.” Mathis v. Cannon, 573 S.E.2d 376, 380 (Ga. 2002) (quoting\n\nRestatement (Second) of Torts § 558 (Am. Law Inst. 1977)). A statement is not\n\nactionable as defamation when it conveys a pure opinion, Gast v. Brittain, 589\n\nS.E.2d 63, 64 (Ga. 2003), or a true statement of fact, O.C.G.A. § 51-5-6. When we\n\nconsider whether a statement is defamatory, we “read and construe the publication\n\nas a whole, and in the sense in which the readers to whom it is addressed would\n\nunderstand it.” Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)\n\n(citing Mead v. True Citizen, Inc., 417 S.E.2d 16, 17 (Ga. Ct. App. 1992)).\n\n Libel consists of the publication of defamatory statements in writing,\n\nO.C.G.A. § 51-5-1, and some written statements are libel per se. Libel per se is\n\n\n\n 10\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 11 of 26\n\n\nactionable without proof of special harm. Cottrell v. Smith, 788 S.E.2d 772, 780–\n\n81 (Ga. 2016).\n\n Libel per se includes “falsely stat[ing] . . . that a person has a criminal case\n\npending against him.” Harcrow, 511 S.E.2d at 546; Witham v. Atlanta Journal, 53\n\nS.E. 105, 107 (Ga. 1906) (explaining that a statement that “in effect charges that\n\nthere are criminal cases pending against [the plaintiff]” is libel per se (internal\n\nquotation marks omitted)); see also Cottrell, 788 S.E.2d at 780–81 (explaining that\n\na false statement imputing a crime to the plaintiff is libel per se). To establish libel\n\nper se, the statement “must charge the commission of a specific crime punishable\n\nby law” by “giv[ing] the impression that the crime is actually being charged\n\nagainst the individual.” Cottrell, 788 S.E.2d at 781.\n\n Echols’s complaint alleges facts that would constitute libel per se. It alleges\n\nthat Lawton falsely stated in writing that Echols remained under indictment for\n\nkidnapping and rape. To be sure, some of Lawton’s written statements convey\n\neither his opinion or true statements of fact, but the legislators to whom Lawton\n\naddressed his alleged writing would have understood it to state as a fact that Echols\n\nstood charged of kidnapping and rape. That alleged statement was false because a\n\nGeorgia court had dismissed the indictment against Echols four years earlier. By\n\nfalsely stating that Echols “ha[d] a criminal case pending against him,” Lawton\n\n\n\n\n 11\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 12 of 26\n\n\nallegedly committed libel per se. Harcrow, 511 S.E.2d at 546. And libel per se is\n\nactionable irrespective of special harm. Cottrell, 788 S.E.2d at 780–81.\n\n Because Echols’s complaint alleges that Lawton committed libel per se, we\n\nnext consider whether the alleged defamation is nevertheless protected by the First\n\nAmendment. Defamation is unprotected when the speaker committed the tort with\n\nactual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)\n\n(holding that a public official or public figure can recover damages for defamation\n\non a matter of public concern only if he proves that the speaker acted with actual\n\nmalice); Gertz v. Robert Welch, Inc., 418 U.S. 323, 348–49 (1974) (holding that,\n\nalthough a private figure can recover damages for defamation if he proves the\n\nspeaker acted negligently, he must prove actual malice to recover presumed or\n\npunitive damages if the statement was on a matter of public concern). Actual\n\nmalice exists when the speaker has knowledge that the statement is false or when\n\nhe speaks with reckless disregard for whether it is false. Sullivan, 376 U.S. at 280.\n\n Even if we were to assume that Echols was a public figure or that Lawton\n\nspoke about a matter of public concern, Echols’s complaint alleges that Lawton\n\ndefamed him with actual malice. The complaint alleges that Lawton knew his\n\nstatement that Echols remained under indictment was false because Lawton’s\n\noffice had dismissed the charges against him after he presented DNA evidence to\n\nLawton and the state crime lab confirmed the results of the DNA test. Indeed, after\n\n\n\n 12\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 13 of 26\n\n\nLawton declined to retry Echols, a Georgia court dismissed the indictment against\n\nhim. Because the complaint alleges that Lawton knew that Echols no longer\n\nremained under indictment for kidnapping and rape, Lawton’s alleged defamatory\n\nstatement was made with actual malice.\n\n The First Amendment affords no protection to Lawton’s alleged libel of\n\nEchols, so no “balance must be struck” here between the First Amendment rights\n\nof a plaintiff alleging retaliation for his speech and an official who allegedly\n\nretaliated through his own speech. Suarez Corp., 202 F.3d at 687 n.13. We must\n\ninstead determine only whether Lawton’s alleged libel violated Echols’s rights\n\nunder the First Amendment.\n\n We acknowledge that some of our sister circuits have held that defamation\n\nis not actionable as retaliation in violation of the First Amendment, but their\n\ndecisions do not persuade us. These circuits have held that an official’s defamatory\n\nspeech by itself cannot constitute retaliation in violation of the First Amendment.\n\nSee id. at 687 (holding that an official’s speech, “even if defamatory,” does not\n\namount to retaliation unless it is a threat, coercion, or intimidation); Colson, 174\n\nF.3d at 512 (holding that allegedly defamatory accusations, “while they may chill\n\nspeech, are not actionable under our First Amendment retaliation jurisprudence”);\n\nGini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 (9th Cir. 1994). The\n\ndecisions of both the Fourth and the Fifth Circuits provide little explanation for\n\n\n\n 13\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 14 of 26\n\n\ntheir reasoning, but they appear to rest on a misreading of Paul v. Davis, 424 U.S.\n\n693 (1976), that originated in the Ninth Circuit, see Suarez Corp., 202 F.3d at 687,\n\n688 & n.14; Colson, 174 F.3d at 512, 514 & n.10; Gini, 40 F.3d at 1045. In Gini,\n\nthe Ninth Circuit held that, under Paul, defamation is not actionable as retaliation\n\nabsent harm to a more tangible interest than reputation. 40 F.3d at 1045. But in\n\nPaul, the Supreme Court addressed a distinct issue; it held that defamation\n\nstanding alone cannot deprive a plaintiff of his right to due process. 424 U.S. at\n\n712. And whether defamation may constitute a violation of procedural due process\n\ndoes not dictate whether it can constitute retaliation in violation of the First\n\nAmendment. “The fact that reputation, the interest that the law of defamation\n\nprimarily protects, is not a form of constitutional liberty or property [under the Due\n\nProcess Clause] doesn’t mean that freedom of speech is not a constitutionally\n\nprotected liberty—as of course it is.” Tierney v. Vahle, 304 F.3d 734, 741 (7th Cir.\n\n2002) (rejecting the Ninth Circuit’s reasoning in Gini).\n\n We reject the notion that the First Amendment protects an official’s\n\ndefamatory speech from a claim of retaliation. After a plaintiff engages in\n\nprotected speech, an official may retaliate with physical or economic harm, but he\n\nmay also retaliate with injurious speech. We agree with other circuits that\n\nsometimes “defamation inflicts sufficient harm on its victim to count as\n\nretaliation.” Id.; see also Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir. 2010); Mattox\n\n\n\n 14\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 15 of 26\n\n\nv. City of Forest Park, 183 F.3d 515, 521 & n.3 (6th Cir. 1999). To decide whether\n\ndefamation in a particular case is retaliatory, the Sixth and Eighth Circuits apply\n\nthe same test of ordinary firmness as they would for any other claim of retaliation.\n\nSee Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005) (“[T]he appropriate\n\nformulation of the ‘adverse action’ prong in [this] case is whether the alleged\n\ndefamation would deter [a person] of ordinary firmness [in the plaintiff’s position]\n\nfrom continuing [to engage in protected speech].”); see also Zutz, 601 F.3d at 849\n\n(applying the ordinary firmness test to retaliation based on an official’s alleged\n\ndefamation). We agree with this approach and decline to create special rules for\n\nclaims of retaliation based on an official’s defamation.\n\n We next consider whether Lawton’s alleged libel per se would have deterred\n\na person of ordinary firmness from exercising his rights under the First\n\nAmendment. See Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005); see,\n\ne.g., Bloch v. Ribar, 156 F.3d 673, 681 (6th Cir. 1998) (holding that, in response to\n\na rape victim’s criticism of the investigation, a sheriff’s release of confidential and\n\nhumiliating information about the victim’s rape would likely deter a person of\n\nordinary firmness from engaging in protected speech). An objective standard\n\ngoverns our inquiry. Bailey, 843 F.3d at 481. And “since there is no justification\n\nfor harassing people for exercising their constitutional rights,” the adverse effect\n\n“need not be great.” Bennett, 423 F.3d at 1254 (citation omitted).\n\n\n\n 15\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 16 of 26\n\n\n Lawton’s alleged libel per se that Echols remained under indictment would\n\nlikely deter a person of ordinary firmness from engaging in protected speech.\n\nWhen Echols exercised his freedom of speech and right to petition the government\n\nby seeking compensation for his wrongful convictions, Lawton allegedly retaliated\n\nby defaming him. Lawton allegedly misled legislators to believe, as a matter of\n\nfact, that Echols remained under indictment for kidnapping and rape—the very\n\ncharges for which Echols had been wrongly convicted. Lawton, more than any\n\nother official, spoke with authority and credibility because he represented the state\n\nin its earlier prosecution of Echols for kidnapping and rape and continued to hold\n\nthat office. But Lawton allegedly knew that the state had entered a nolle prosequi\n\non these charges four years earlier. See State v. Sheahan, 456 S.E.2d 615, 617 (Ga.\n\nCt. App. 1995) (“The entry of the nolle prosequi rendered the charge[s]\n\ndead . . . .”). If a district attorney defamed a former prisoner for seeking legislative\n\ncompensation for his wrongful convictions and derailed that legislative effort, a\n\nperson of ordinary firmness would likely be deterred from speaking again on that\n\nmatter lest the prosecutor continue to tarnish his reputation or, worse, initiate a\n\nwrongful prosecution. So Echols’s complaint states a claim of retaliation under the\n\nFirst Amendment.\n\n\n\n\n 16\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 17 of 26\n\n\n 2. Lawton Did Not Violate a First Amendment Right That Was Clearly\n Established.\n\n To defeat Lawton’s qualified immunity, Echols must also prove that Lawton\n\nviolated a constitutional right that “was ‘clearly established’ at the time of the\n\nchallenged conduct.” Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (quoting al-\n\nKidd, 563 U.S. at 735). An official’s conduct violates clearly established law when\n\n“the contours of [the] right are sufficiently clear that every reasonable official\n\nwould have understood that what he is doing violates that right.” al-Kidd, 563 U.S.\n\nat 741 (alterations adopted) (quoting Anderson v. Creighton, 483 U.S. 635, 640\n\n(1987)). We consider the official’s conduct in “the specific context of the case,”\n\nnot as “broad general proposition[s].” Bailey, 843 F.3d at 484; see also al-Kidd,\n\n563 U.S. at 742 (“We have repeatedly told courts . . . not to define clearly\n\nestablished law at a high level of generality.”). And we ask the “salient\n\nquestion . . . whether the state of law at the time of [an official’s conduct] provided\n\n‘fair warning,’” to every reasonable official that the conduct clearly violates the\n\nConstitution. Mikko, 857 F.3d at 1146.\n\n Echols can “demonstrate that the contours of the right were clearly\n\nestablished in one of three ways.” Loftus v. Clark-Moore, 690 F.3d 1200, 1204\n\n(11th Cir. 2012) (alteration adopted) (citation and internal quotation marks\n\nomitted). First, he can point us to a “materially similar case [that] has already been\n\ndecided.” Id. (citation and quotation marks omitted). Second, he can point us to “a\n\n 17\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 18 of 26\n\n\nbroader, clearly established principle that should control the novel facts of the\n\nsituation.” Id. (alterations adopted). Third, “the conduct involved in the case may\n\nso obviously violate the [C]onstitution that prior case law is unnecessary.” Id. at\n\n1205 (alterations adopted). Echols’s arguments fail under all of these approaches.\n\n Echols contends that an assortment of decisions clearly established Lawton’s\n\nviolation of his rights, but he cites no controlling precedent that would have\n\nprovided Lawton fair notice that his conduct would violate the First Amendment.\n\nAlthough “[w]e do not require a case directly on point, [some] existing precedent\n\nmust have placed the . . . constitutional question beyond debate.” al-Kidd, 563 U.S.\n\nat 741. We look only to binding precedent at the time of the challenged conduct—\n\nthat is, “the decisions of the Supreme Court, the Eleventh Circuit, or the highest\n\ncourt of the state.” Bailey, 843 F.3d at 483–84. And a clearly established violation\n\nof state law cannot put an official on notice that his conduct would also violate the\n\nConstitution because “section 1983 protects only against violations of federally\n\nprotected rights.” Casnines v. Murchek, 766 F.2d 1494, 1501 n.10 (11th Cir. 1985).\n\n Echols relies either on precedents that are inapposite, see, e.g., United States\n\nv. Noriega, 117 F.3d 1206, 1220 (11th Cir. 1997) (discussing a prosecutor’s duty\n\nnot to present false evidence during a judicial proceeding), or on decisions that are\n\nnot precedential, see, e.g., Lucas v. Parish of Jefferson, 999 F. Supp. 839 (E.D. La.\n\n1998). And he relies on decisions from other jurisdictions, some of which even\n\n\n\n 18\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 19 of 26\n\n\npostdate Lawton’s alleged violation, see, e.g., Whitlock v. Brueggemann, 682 F.3d\n\n567, 581 (7th Cir. 2012). Although Lawton clearly would have had fair notice that\n\nhis alleged writing constituted libel per se under state tort law, he would not have\n\nunderstood that his alleged libel would have violated the First Amendment. No\n\ncontrolling precedent put Lawton’s alleged violation beyond debate.\n\n Echols also relies on the broader principle “that the act of retaliation for the\n\nexercise of constitutional rights is clearly established as a violation,” but this\n\ngeneral principle is too broadly stated to control our inquiry. “[S]ome broad\n\nstatements of principle in case law [that] are not tied to particularized facts . . . can\n\nclearly establish law applicable in the future to different sets of detailed facts.”\n\nVinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). But the principle must\n\nestablish with “obvious clarity” that “in the light of pre-existing law the\n\nunlawfulness [of the official’s conduct is] apparent.” Id. at 1353. True, “it is\n\n‘settled law’ that the government may not retaliate against citizens for the exercise\n\nof First Amendment rights.” Bennett, 423 F.3d at 1256. But that general principle\n\ndoes not resolve with “obvious clarity” that defamation may constitute retaliation\n\nin violation of the First Amendment. See also Reichle v. Howards, 566 U.S. 658,\n\n665 (2012) (rejecting the argument that “the general right to be free from\n\nretaliation for one’s speech” clearly establishes a violation of the First\n\nAmendment).\n\n\n\n 19\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 20 of 26\n\n\n Echols also fails to persuade us that Lawton’s conduct “so obviously\n\nviolate[d] the [C]onstitution that prior case law is unnecessary.” Loftus, 690 F.3d at\n\n1205. “This narrow category encompasses those situations where the official’s\n\nconduct lies so obviously at the very core of what the relevant constitutional\n\nprovision prohibits that the unlawfulness of the conduct was readily apparent to the\n\nofficial, notwithstanding the lack of case law.” Id. (alteration adopted) (internal\n\nquotation marks omitted) (quoting Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir.\n\n2012)). “[I]n the absence of controlling precedent, cases decided outside this\n\nCircuit can buttress our view that the applicable law was not already clearly\n\nestablished” because “[w]e must not hold [officials] to a higher standard of legal\n\nknowledge than that displayed by the federal courts in reasonable and reasoned\n\ndecisions.” Youmans v. Gagnon, 626 F.3d 557, 565 (11th Cir. 2010).\n\n Lawton’s conduct does not fall within this “narrow category.” As we have\n\nexplained, our sister circuits are divided over whether an official’s defamatory\n\nspeech is actionable as retaliation under the First Amendment. It has certainly not\n\nbeen obvious to the federal courts that an official’s defamatory speech lies at the\n\ncore of what the First Amendment prohibits. “[W]here judges thus disagree on a\n\nconstitutional question,” we cannot “expect that reasonable [officials] know more\n\nthan reasonable judges about the law.” Id. (citations and quotation marks omitted).\n\n\n\n\n 20\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 21 of 26\n\n\nSo we cannot say that it would have been “readily apparent” to every reasonable\n\nofficial that Lawton’s alleged defamation violated the First Amendment. Id.\n\n Critics of the doctrine of qualified immunity condemn “letting [an] official\n\nduck consequences for bad behavior.” Zadeh v. Robinson, 902 F.3d 483, 498\n\n(Willett, J., concurring dubitante) (5th Cir. 2018); William Baude, Is Qualified\n\nImmunity Unlawful?, 106 Calif. L. Rev. 45 (2018). And we too condemn Lawton’s\n\nalleged conduct. But the Supreme Court has long ruled that qualified immunity\n\nprotects a badly behaving official unless he had fair notice that his conduct would\n\nviolate the Constitution, District of Columbia v. Wesby, 138 S. Ct. 577, 589–91\n\n(2018); Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018), though at least one justice\n\nmay harbor doubts, see Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J.,\n\nconcurring in part and in the judgment) (“In an appropriate case, we should\n\nreconsider our qualified immunity jurisprudence.”). “Because the Constitution’s\n\ngeneral provisions can be abstract,” fair notice protects an official from “liab[ility]\n\nfor conduct that [he could] reasonably believe[] was lawful.” Aaron L. Nielson &\n\nChristopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame\n\nL. Rev. 1853, 1873 (2018). So even when an official behaves badly, “qualified\n\nimmunity gives government officials breathing room to make reasonable but\n\nmistaken judgments about open legal questions.” al-Kidd, 563 U.S. at 743.\n\n\n\n\n 21\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 22 of 26\n\n\n Recall that the Constitution does not provide the only standard for redress\n\nfor those wronged by public officials. For example, Lawton’s alleged conduct\n\ncould have been reviewed and sanctioned by the State Bar. See Ga. R. Prof’l\n\nConduct 3.8(g), 8.4. Echols could have also filed a claim under state tort law\n\nagainst Lawton. See Cottrell, 788 S.E.2d at 780–81. But Echols chose to frame his\n\ncomplaint as a federal case alleging a violation of the Constitution, 42 U.S.C. §\n\n1983.\n\n Section 1983 is not a “font of tort law [that] converts [every] state law tort\n\nclaim[] into [a] federal cause[] of action.” Waddell, 329 F.3d at 1305 (citation and\n\ninternal quotation marks omitted). When a plaintiff complains that a public official\n\nhas violated the Constitution, qualified immunity shields the official from\n\nindividual liability unless he had fair notice that his alleged conduct would violate\n\n“the supreme Law of the Land.” U.S. Const. Art. VI. Because Lawton lacked that\n\nfair notice, he enjoys qualified immunity from Echols’s claim of retaliation.\n\n B. Lawton Enjoys Qualified Immunity from Echols’s Claim Under the Due\n Process Clause.\n\n We also agree with the district court that Lawton enjoys qualified immunity\n\nfrom Echols’s claim that Lawton violated his right to substantive due process, but\n\nwe again do so for a different reason. The district court ruled that Echols failed to\n\nstate a claim under the standards that govern substantive due process because\n\nEchols failed to allege either a violation of a fundamental liberty or government\n\n 22\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 23 of 26\n\n\nconduct that shocks the conscience, but Echols’s claim fails for a simpler reason:\n\nthe text of the First Amendment sets the specific standard for it. As we have\n\nalready explained, the First Amendment protects Echols’s right to be free from\n\nretaliation by Lawton, a public official, for the exercise of Echols’s right to speak.\n\nSee Bailey, 843 F.3d at 480–81. And the Due Process Clause cannot be used to\n\nsupplement that substantive right.\n\n “Where a particular Amendment provides an explicit textual source of\n\nconstitutional protection against a particular sort of government behavior, that\n\nAmendment, not the more generalized notion of substantive due process, must be\n\nthe guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U.S.\n\n833, 842 (1998) (alteration omitted) (quoting Albright v. Oliver, 510 U.S. 266, 273\n\n(1994) (plurality opinion)); see also Graham v. Connor, 490 U.S. 386, 395 (1989).\n\nIn the Bill of Rights, the “Framers sought to restrict the exercise of arbitrary\n\nauthority by the [g]overnment in particular situations.” Albright, 510 U.S. at 273\n\n(plurality opinion). So when the Framers considered a matter and drafted an\n\namendment to address it, id. at 274, a substantive-due-process analysis is\n\ninappropriate, Lewis, 523 U.S. at 843. We must “analyze[] [the claim] under the\n\nstandard appropriate to that specific provision, not under the rubric of substantive\n\ndue process.” Lewis, 523 U.S. at 843 (quoting United States v. Lanier, 520 U.S.\n\n259, 272 n.7 (1997)).\n\n\n\n 23\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 24 of 26\n\n\n The district court’s error was understandable. Confusion in jurisprudence\n\nthat can be fairly described as untethered from the text of the Constitution—on its\n\nface, after all, “the Due Process Clause guarantees no substantive rights, but only\n\n(as it says) process,” United States v. Carlton, 512 U.S. 26, 40 (1994) (Scalia, J.,\n\nconcurring in the judgment)—should not be surprising. For that reason, the\n\nSupreme Court has been “reluctant to expand the concept of substantive due\n\nprocess.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992). So where, as here,\n\na specific constitutional provision covers a plaintiff’s claim, the requirements of\n\nthat provision “are not to be supplemented through the device of ‘substantive due\n\nprocess.’” Albright, 510 U.S. at 276 (Scalia, J., concurring).\n\n IV. CONCLUSION\n\n We AFFIRM the judgment in favor of Lawton.\n\n\n\n\n 24\n\n Case: 17-13843 Date Filed: 01/25/2019 Page: 25 of 26\n[END_CASE]",
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4,585,196 | Sheena Yarbrough v. Decatur Housing Authority | 2019-01-28 | 17-11500 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "Case: 17-11500 Date Filed: 01/28/2019 Page: 1 of 2\n\fCase: 17-11500 Date Filed: 01/28/2019 Page: 2 of 2", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362449/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585196/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Sheena Yarbrough v. Decatur Housing Authority\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-11500 Date Filed: 01/28/2019 Page: 1 of 2\n\fCase: 17-11500 Date Filed: 01/28/2019 Page: 2 of 2\n[END_CASE]",
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8,443,868 | Sheena YARBROUGH v. DECATUR HOUSING AUTHORITY | Yarbrough v. Decatur Hous. Auth. | 2019-01-28 | No. 17-11500 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415296/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443868/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: Sheena YARBROUGH v. DECATUR HOUSING AUTHORITY\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,585,716 | UNITED STATES of America, Plaintiff - Appellee, v. Matthew G. MUNKSGARD, Defendant - Appellant. | United States v. Matthew G. Munksgard | 2019-01-30 | 16-17654 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Marcus, Newsom", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887945/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887946/", "author_raw": ""}, {"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 16-17654 Date Filed: 01/30/2019 Page: 1 of 32\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-17654\n ________________________\n\n D.C. Docket No. 1:15-cr-00012-MP-GRJ-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n versus\n\nMATTHEW G. MUNKSGARD,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Florida\n ________________________\n\n (January 30, 2019)\n\nBefore TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n This criminal appeal presents both a surprisingly close question of\n\nevidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an\n\ninteresting statutory-interpretation issue. As to the former, federal law criminalizes\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 2 of 32\n\n\nthe act of knowingly making a false statement in order to obtain a loan from a bank\n\nthat is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to\n\nknowingly making false statements in order to obtain bank loans—indeed, four\n\ntimes over. Even so, he contends, the government failed to show beyond a\n\nreasonable doubt, as it had to, that the institution he swindled was FDIC-insured.\n\nThis case presents the (irritatingly familiar) question whether the government\n\npresented sufficient evidence to prove that pesky jurisdictional prerequisite. The\n\nproof of FDIC insurance here—as in other cases in which we have rapped the\n\ngovernment’s knuckles—was hardly overwhelming. And given the ease with\n\nwhich insurance coverage could have been demonstrated—certificate, contract,\n\ncancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the\n\nstandard, and when we view the evidence in the light most favorable to the\n\ngovernment, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th\n\nCir. 2010), we conclude—albeit reluctantly—that the proof was adequate to\n\ndemonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a\n\nwarning to federal prosecutors: You are (as the author’s mother used to say)\n\ncruisin’ for a bruisin’. Don’t apologize—do better.\n\n Now, the statutory-interpretation issue: Federal law makes it a crime for any\n\nperson to “use[], without lawful authority, a means of identification of another\n\nperson.” 18 U.S.C. § 1028A(a)(1). The jury here found that Munksgard violated\n\n\n 2\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 3 of 32\n\n\nthis statute when, in an effort to obtain financing to support his land-surveying\n\nbusiness, he forged another person’s name to a surveying contract that he\n\nsubmitted to a bank in support of his loan application. The question before us is\n\nwhether Munksgard’s conduct qualifies as a prohibited “use[]” within the meaning\n\nof § 1028A(a)(1). Munksgard insists that we should cabin the meaning of “use[]”\n\nto crimes in which the accused attempted to impersonate, or act “on behalf of,”\n\nsomeone else. We disagree. Plain meaning, statutory context, and existing\n\nprecedent all show that Munksgard “use[d]” his victim’s means of identification\n\nwhen he employed that person’s signature to obtain the loan and thereby converted\n\nthe signature to his own service.\n\n I\n\n Matthew Munksgard began banking with Drummond Community Bank in\n\nthe late 1990s. Drummond is a relatively small bank; at the time of trial, it\n\noperated in only a few counties in west central Florida. Munksgard obtained his\n\nfirst drawdown line of credit from Drummond in 2010 to fund his work as a land\n\nsurveyor. After repaying that loan without incident, in 2012 Munksgard obtained\n\ntwo more drawdown lines. He also repaid those loans, albeit once from a different\n\nsource of funds than he had indicated in his loan application.\n\n That’s when the real trouble started. The next year, Munksgard applied for\n\nyet another line of credit from Drummond, this time supported by a surveying\n\n\n 3\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 4 of 32\n\n\ncontract with a company called Cal-Maine Foods. That contract showed the\n\nsignature of Cal-Maine employee Kyle Morris. Munksgard now admits that the\n\ncontract was fraudulent and that he signed Morris’s name to it without Morris’s\n\nknowledge or permission.\n\n Munksgard obtained three more lines of credit from Drummond over the\n\nnext two years. He supported a 2013 credit application with a contract with\n\nMaxwell Plum Creek signed, on Plum Creek’s behalf, by an “S. Riggins.” Plum\n\nCreek had no knowledge of the contract, and “S. Riggins” didn’t exist.\n\nMunksgard’s third and fourth credit applications, both in 2014, followed a similar\n\npattern. To support them, Munksgard submitted contracts with St. Johns River\n\nWater Management and Triple Bell Farms. Both contracts were fraudulent, and\n\nboth were signed by fictional employees—“Ross Rawlings” for St. Johns River\n\nand “Jason Hanold” for Triple Bell.\n\n Three years and four unpaid loans in, Drummond started asking questions\n\nand ultimately contacted the FBI. A grand jury later indicted Munksgard on four\n\ncounts of knowingly making a false statement in order to obtain a loan from an\n\nFDIC-insured bank, in violation of 18 U.S.C. § 1014, and one count of aggravated\n\nidentity theft for his placement of Kyle Morris’s signature on the Cal-Maine Foods\n\ncontract, in violation of 18 U.S.C. § 1028A.\n\n\n\n\n 4\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 5 of 32\n\n\n At trial, the government presented three pieces of evidence to prove that\n\nDrummond was FDIC-insured when Munksgard submitted the fraudulent\n\nmaterials: (1) a certification indicating that the bank’s deposits were insured when\n\nit was initially chartered in 1990; (2) testimony from a veteran bank employee,\n\nDavid Claussen, that Drummond was currently (i.e., in 2016) FDIC-insured; and\n\n(3) Claussen’s further testimony that the bank isn’t required to “renew[]” its FDIC\n\ncertificate “every so often.”\n\n The jury convicted Munksgard on all five counts. The district court\n\nsentenced Munksgard to six months in prison for the fraudulent credit applications\n\nand to a consecutive 24 months for aggravated identity theft.\n\n II\n\n We begin with Munksgard’s bank-fraud conviction under 18 U.S.C. § 1014.\n\nSection 1014 prescribes stiff penalties for anyone who “knowingly makes any false\n\nstatement . . . for the purpose of influencing in any way the action of any institution\n\nthe accounts of which are insured by the Federal Deposit Insurance Corporation.”\n\n18 U.S.C. § 1014. For purposes of appeal, all agree that Munksgard (1) knowingly\n\n(2) made false statements (3) in order to obtain financing from Drummond\n\nCommunity Bank. That gets the government three-quarters of the way home.\n\nMunksgard contends, though, that the government didn’t quite finish the job—in\n\nparticular, he says, it failed to present sufficient evidence to prove beyond a\n\n\n 5\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 6 of 32\n\n\nreasonable doubt that Drummond was FDIC-insured at the time he submitted the\n\nfraudulent loan applications.\n\n We’ve seen this play before—part comedy, part tragedy. For reasons that\n\nleave us mystified, in cases involving federally insured banks—bank robbery, bank\n\nfraud, etc.—the government continues to stub its toe in seeking to prove the\n\nseemingly straightforward, but nonetheless jurisdictionally “indispensable,”\n\nelement of FDIC insurance. See United States v. Platenburg, 657 F.2d 797, 799\n\n(5th Cir. Unit A Oct. 1981). In our Circuit alone, the problem stretches back more\n\nthan half a century. For the good of all involved, we’ll pick up the story in 1978,\n\nwhen we (then part of the old Fifth) considered a bank-robbery case in which the\n\ngovernment had presented evidence indicating that the institution at issue had been\n\ninsured (1) ten years before the crime and (2) at the time of the trial. Citing our\n\nown precedent, as well cases from the Sixth, Seventh, and Eighth Circuits\n\nconfronting the same question, we observed that “a jury can reasonably infer that\n\nan institution was federally insured on the date of a robbery if it is presented with\n\nevidence showing that the institution was insured both prior to that date and\n\nrecently thereafter.” United States v. Fitzpatrick, 581 F.2d 1221, 1223 (5th Cir.\n\n1978) (citations omitted). We hastened to add, however—the proverbial shot\n\nacross the bow—that “the government obviously could have done a much better\n\njob of proving the bank’s insured status at the date of the crime.” Id.\n\n\n 6\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 7 of 32\n\n\n Two years later, in what would later be described as the “nadir of the\n\nacceptable level of proof,” Platenburg, 657 F.2d at 800, we found—“[j]ust\n\nbarely”—that a reasonable jury could conclude that the target bank was insured at\n\nthe time of the offense based on evidence that it had FDIC insurance five years\n\nearlier. United States v. Maner, 611 F.2d 107, 110–112 (5th Cir. 1980). We\n\ndeemed it “at least arguable” that the jury could indulge “the universal\n\npresumption . . . that all banks are federally insured”—and further “that a\n\nreasonable jury could infer beyond a reasonable doubt that proof of the condition\n\nof insurance before the robbery, absent evidence to the contrary, suggests the\n\ncontinuation of that insurance.” Id. at 110.\n\n Once again—this time more vigorously—we expressed our annoyance. We\n\nemphasized our “difficulty comprehending why the Government repeatedly fails to\n\nprove this element more carefully since the Government’s burden is so simple and\n\nstraightforward,” and we warned that “the Government had tread[ed] perilously\n\nclose to reversal in th[at] case, and may soon find itself crossing the line from\n\nsufficiency to insufficiency.” Id. at 112. Underscoring what we described as a\n\n“plague infecting United States Attorneys throughout the land,” our opinion\n\nincluded a 760-word “digest” of cases in which appellate courts had considered\n\nwhether the government had failed to shoulder its proof-of-insurance burden.\n\nMore generously, we even offered suggestions for how the government could\n\n\n 7\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 8 of 32\n\n\nprove this “simple but indispensable fact”—a certificate of FDIC coverage\n\nspanning the date of the crime, an insurance contract, a cancelled check, etc. Id. at\n\n112 n.2.\n\n Our warnings went unheeded. In Platenburg, the government presented\n\nonly a certificate of FDIC insurance that predated the offense by seven years—\n\nnothing more. Enough had finally become enough: “The day ha[d] come; the line\n\nfrom sufficiency to insufficiency ha[d] been crossed.” 657 F.2d at 799.\n\n So then, what of this case? Notwithstanding our sympathy for our dissenting\n\ncolleague’s exasperation, we don’t think the line has been crossed here. The\n\ngovernment’s evidence of insurance, while not overwhelming, was sufficient to\n\nprove beyond a reasonable doubt that Drummond Community Bank was FDIC-\n\ninsured. In one of the first cases to address the FDIC-insurance issue, we quoted\n\nProfessor Wigmore for the following logico-evidentiary propositions: first,\n\n“[w]hen the existence of an object, condition, quality, or tendency at a given time\n\nis in issue, the prior existence of it is in human experience some indication of its\n\nprobable persistence or continuance at a later period”; and second, “[s]imilar\n\nconsiderations affect the use of subsequent existence as evidence of existence at\n\nthe time in issue.” Cook v. United States, 320 F.2d 258, 259 (5th Cir. 1963)\n\n\n\n\n 8\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 9 of 32\n\n\n(citations omitted).1 Thus, at least in some circumstances, evidence of either\n\n“prior” or “subsequent” insurance, even standing alone, can be adequate proof of\n\ncoverage at the time of the offense. 2 Needless to say, we much prefer both—and\n\ncontemporaneous evidence is even better. 3\n\n\n\n1\n The Dissent objects to our citation to Cook on the ground that the court there was reviewing\nonly for plain error, whereas here we review Munksgard’s sufficiency-of-the-evidence argument\nde novo. See Dissenting Op. at 21–25. There are two problems. First, in its effort prove that\n“[t]he standard of review answers the question” and conclusively distinguishes Cook, id. at 6, the\nDissent strains to make Cook say something it doesn’t. In particular, the Dissent insists that the\nCook court “was looking outside the judicial proceedings”—that is, to Wigmore’s commonsense\npropositions that prior and subsequent existence imply current existence—“because it was\nrequired to do so under plain error review,” and in particular under “[t]he fourth factor,” which\nasks whether the alleged error “seriously affected the fairness, integrity, or public reputation of\njudicial proceedings.” Dissenting Op. at 23 (quoting United States v. Hernandez, 906 F.3d 1367,\n1370 (11th Cir. 2018)) (emphasis added by the Dissent). In fact, though, the Cook court\nemphasized the third plain-error factor—whether the alleged error affected “substantial rights,”\nCook, 320 F.2d at 260—so the hinge on which the Dissent’s distinction of Cook swings turns out\nnot to work. Second, and in any event, we mustn’t forget while our sufficiency review here is de\nnovo, it remains the case that Munksgard’s conviction “must be upheld unless the jury could not\nhave found the defendant guilty under any reasonable construction of the evidence.” United\nStates v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010) (quoting United States v. Chastain, 198\nF.3d 1338, 1351 (11th Cir. 1999)). It seems to us hardly controversial that a jury could\nreasonably consider what we have called Wigmore’s “logico-evidentiary propositions”—\ncoverage before + coverage after = coverage in between—in determining whether Drummond\nwas insured when Munksgard swindled it.\n2\n The Dissent concedes as much—see Dissenting Op. at 25–26 (approving of the propositions’\napplication in Woolworth Co. v. Seckinger, 125 F.2d 97 (5th Cir. 1942))—but asserts that\napplying Wigmore’s propositions “makes little sense in a case like this,” where the relevant\ncondition may change over a brief period of time. Dissenting Op. at 26–27. Fair enough:\nhypothetically, a bank could lose its insured status at midnight tonight, noon tomorrow, or as we\nwrite this sentence. But as a “nearly universal” matter, banks don’t. Cook, 320 F.2d at 259.\nMunksgard bore the burden on appeal to demonstrate that it was unreasonable for a jury\npresented with evidence of Drummond’s prior and subsequent insurance to conclude that\nDrummond was insured during the period in between. We have difficulty understanding how a\njury determination that squares with common experience is unreasonable.\n3\n A little Google sleuthing presumably would have revealed that Drummond’s FDIC insurance\nwas (as it appears to be now) “Active.” See Fed. Deposit Ins. Corp., BankFind (data as of Dec.\n5, 2018).\n\n 9\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 10 of 32\n\n\n In any event, given our precedent, what the government presented here was\n\ngood enough. First, the government introduced a certificate of FDIC insurance\n\nissued when Drummond Community Bank was initially chartered in 1990—\n\nevidence (in Wigmore’s terms) of “prior existence.” Second, David Claussen,\n\nDrummond’s Senior Vice President and Chief Underwriter, testified that the bank\n\nwas insured at the time of trial in 2016—“subsequent existence.” Finally, when\n\nasked whether Drummond’s FDIC certificate is renewed “every so often,”\n\nClaussen—who had spent 25 years at the small bank, and was therefore likely to be\n\nfamiliar with its administration and operations—testified that it isn’t. We think it\n\nclear that a reasonable jury could conclude that his testimony provides additional\n\nevidence—beyond mere prior and subsequent existence—that Drummond was\n\ninsured in 2013 and 2014, when Munksgard submitted the fraudulent contracts.\n\n * * *\n\n Considering all of the evidence, the government proved beyond a reasonable\n\ndoubt that Drummond Community Bank was insured by the FDIC both before and\n\nafter Munksgard’s offenses and that it didn’t need to renew its insurance in the\n\ninterim. Coupled with the “universal presumption . . . that all banks are federally\n\ninsured,” Maner, 611 F.2d at 110 4—and viewing the proof in the light most\n\n\n4\n To be clear, neither we nor the Maner court are taking official notice of a disputed fact so much\nas acknowledging the state of the world—an exercise that is necessarily part of any review of the\nreasonableness of a jury’s decision. See Dissenting Op. at 29–30.\n\n 10\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 11 of 32\n\n\nfavorable to the government—we conclude that a reasonable juror could find that\n\nDrummond was insured by the FDIC on the dates of Munksgard’s offenses.\n\n III\n\n Now, to Munksgard’s conviction for aggravated identity theft under 18\n\nU.S.C. § 1028A, which was based on his signing Kyle Morris’s name to the\n\nfraudulent contract with Cal-Maine Foods. Section 1028A(a)(1) provides:\n\n“Whoever, during and in relation to any felony violation enumerated in subsection\n\n(c), knowingly transfers, possesses, or uses, without lawful authority, a means of\n\nidentification of another person shall, in addition to the punishment provided for\n\nsuch felony, be sentenced to a term of imprisonment of 2 years.”\n\n As with the fraud counts, all but one of the elements required to convict\n\nMunksgard under § 1028A are straightforward. First, § 1028A(a)(1)’s “during and\n\nin relation to” clause covers Munksgard’s § 1014 offense. Among other crimes\n\nenumerated in “subsection (c)” of § 1028A is “any provision contained in this\n\nchapter [47] (relating to fraud and false statements) . . . .” 18 U.S.C. §\n\n1028A(c)(4). Chapter 47, in turn, “contain[s]” § 1014, which forbids “knowingly\n\nmak[ing] any false statement” for the purpose (as relevant here) of obtaining\n\nfinancing from an FDIC-insured bank. Second, Munksgard does not dispute that\n\nhe “knowingly” signed Morris’s name to the contract. Third, § 1028 defines\n\n“means of identification” as “any name or number that may be used, alone or in\n\n\n 11\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 12 of 32\n\n\nconjunction with any other information, to identify a specific individual, including\n\nany—name . . . .” 18 U.S.C. § 1028A(d)(7)(A). So, it seems clear to us, “/s/ Kyle\n\nMorris” counts as a “means of identification.” Finally, Munksgard admits that he\n\nsigned Morris’s name “without lawful authority.” 18 U.S.C. § 1028A(a)(1).\n\n That leaves the verb. The government also had to prove, as pertinent here,\n\nthat Munksgard “use[d]” Morris’s identity. Citing United States v. Berroa, 856\n\nF.3d 141 (1st Cir. 2017), and United States v. Miller, 734 F.3d 530 (6th Cir. 2013),\n\nMunksgard insists that the term “use[]”in § 1028A “require[s] that the defendant\n\nattempt to pass him or herself off as another person or purport to take some other\n\naction on another person’s behalf.” Berroa, 856 F.3d at 156. Munksgard says that\n\nbecause he only signed Morris’s name, and didn’t try to impersonate Morris or\n\notherwise act on his behalf, he didn’t “use[]” Morris’s identification.\n\n We aren’t persuaded. Rather, we find ourselves in agreement with the Sixth\n\nCircuit’s recent (post-Miller) decision in United States v. Michael, which held that\n\na pharmacist had “used” a doctor’s and patient’s “means of identification”—even\n\nthough he impersonated neither—when he included the doctor’s National Provider\n\nIdentifier and the patient’s name and birthdate on a fraudulent insurance claim.\n\n882 F.3d 624, 628 (6th Cir. 2018). Like the Michael court, we begin with the\n\nordinary meaning of the term “use”—and, in particular, how standard English-\n\nlanguage dictionaries define the verb “use” when employed in conjunction with a\n\n\n 12\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 13 of 32\n\n\nparticular object, as in to “use[] . . . a means of identification.” In Webster’s\n\nSecond, for instance, to “use” an object is “[t]o convert [it] to one’s service; to\n\navail oneself of [it]; to employ [it]; as, to use a plow, a chair, a book.” Webster’s\n\nSecond New International Dictionary 2806 (1944). Webster’s Third likewise\n\ndefines “use” vis-à-vis an object to mean “to put [it] into action or service”—e.g.,\n\n“whether he would ever [use] the tie she had given him.” Webster’s Third New\n\nInternational Dictionary 2523 (2002). In Oxford, more of the same: “take, hold, or\n\ndeploy (something) as a means of accomplishing or achieving something; employ;\n\n[as in] she used her key to open the front door.” Oxford Dictionary of English\n\n1958 (3d ed. 2010). And as proof that “use” does not bear some idiosyncratic\n\nconnotation in the legal context, we note that Black’s too defines the verb form to\n\nmean “[t]o employ for the accomplishment of some purpose” or “to avail oneself\n\nof.” Black’s Law Dictionary 1776 (10th ed. 2014). On plain meaning alone,\n\ntherefore, it seems clear to us that Munksgard “use[d]” a means of identification in\n\nthat he “employed” Morris’s name in order to procure a bank loan, and thereby\n\n“convert[ed]” Morris’s name “to [his] service.”5\n\n\n\n\n5\n As employed in § 1028A, the term “use” no doubt covers impersonations, but impersonations\ndo not exhaust the term’s meaning. Just as the Supreme Court in Smith v. United States, 508\nU.S. 223 (1993), rejected the argument that combining “use” with “firearm” meant that the\nstatute criminalized only using qua shooting, so here “us[ing] a means of identification” needn’t\nrefer exclusively to impersonations. See Michael, 882 F.3d at 627 (rejecting similar argument).\n\n 13\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 14 of 32\n\n\n Statutory context confirms this plain-meaning interpretation of the term\n\n“use[]”—at least as it pertains to a “means of identification.” For starters,\n\n§ 1028A(a)(1) criminalizes the knowing and unauthorized use of a means of\n\nidentification “during and in relation to” certain enumerated felonies—one of\n\nwhich, again, is knowingly making a false statement to an FDIC-insured bank\n\nunder 18 U.S.C. § 1014. As the Sixth Circuit explained in Michael, this “during\n\nand in relation to” language connotes causation: “The salient point,” the court said,\n\n“is whether the defendant used the means of identification to further or facilitate\n\nthe . . . fraud.” 882 F.3d at 628. Just as “[f]orging a doctor’s signature to bolster”\n\ninsurance claims “facilitated the health care fraud” in that case, so too forging\n\nMorris’s name to bolster a loan application facilitated the bank fraud in this one.\n\nId. at 629.\n\n Ranging beyond the term’s immediate surroundings, our reading finds\n\nadditional support in § 1028A(c)’s statutory cross references—the various “uses”\n\nof means of identification that the prohibition covers. Along with § 1014’s “fraud\n\nand false statements” ((c)(4)), § 1028A also reaches, to take only the first five,\n\n“theft or public money, property or rewards” ((c)(1)), “false personation of\n\ncitizenship” ((c)(2)), “false statements in connection with the acquisition of a\n\nfirearm” ((c)(3)), and “mail, bank, and wire fraud” ((c)(5)). While these references\n\nmay not foreclose an impersonation-based “on behalf of” reading, they also don’t\n\n\n 14\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 15 of 32\n\n\npreclude—and on balance, we think they support—an interpretation of “use[]” that\n\nmore broadly forbids one from “employ[ing]” or “convert[ing] to [his] service”\n\nanother’s name.\n\n Lastly, we note that what precedent there is further reinforces our plain-\n\nlanguage reading. Although this Court has not yet opined (in a published opinion)\n\non the meaning of “use[]” in § 1028A,6 we have found the word “use” in other\n\ncriminal statutes to entail employing or converting an object to one’s service. See,\n\ne.g., United States v. Montano, 398 F.3d 1276, 1284–85 (11th Cir. 2005)\n\n(observing that a defendant “use[s] or carrie[s] a firearm” within the meaning of 18\n\nU.S.C. § 924(c)(1)(A) when he “employ[s] the guns, avail[s] himself of the guns,\n\nderive[s] service from the guns, or receive[s] any other benefit from the guns”).\n\nThe Supreme Court and our sister circuits have done the same. See, e.g., United\n\nStates v. Castleman, 572 U.S. 157, 170–71 (2014) (holding that under 18 U.S.C. §\n\n922(g)(9) “the word ‘use’ conveys the idea that the thing used . . . has been made\n\nthe user’s instrument”) (internal quotation marks and citations omitted)); Konop v.\n\nHawaiian Airlines, Inc., 302 F.3d 868, 880 (9th Cir. 2002) (defining “use” in 18\n\nU.S.C. § 2701(c)(2) to mean “to put into action or service, avail oneself of,\n\n\n\n6\n We note, however, that our reading comports with that in United States v. Lewis, 443 Fed.\nApp’x 493, 495–96 (11th Cir. 2011) (“As the signature of an individual’s name specifically\nidentifies that individual, we conclude that forging another’s signature constitutes the use of a\n‘means of identification.’”).\n\n 15\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 16 of 32\n\n\nemploy”); United States v. Ramsey, 237 F.3d 853, 859 (7th Cir. 2001) (interpreting\n\n“use or attempted to use” in U.S.S.G. § 3B1.4 “fairly broadly” in accordance with\n\nthe definition in the Sixth Edition of Black’s—“to avail oneself of; to employ; to\n\nutilize; to carry out a purpose or action by means of; to put into action or service,\n\nespecially to attain an end”).\n\n There is one loose end—well two, really. Aside from his general contention\n\nthat “us[ing] a means of identification” necessarily entails impersonation,\n\nMunksgard offers a pair of more specific reasons why we shouldn’t deem his\n\naction to be a covered “use” of Morris’s name. We find neither compelling. First,\n\nMunksgard asserts that he “signed Morris’s name to the surveying contract but did\n\nnot take anything from Morris nor did he obligate Morris to do anything.” But\n\nharm to the identity’s true owner isn’t an element of § 1028A(a)(1); accordingly,\n\nMunksgard’s argument—even if true—provides him no defense. Second,\n\nMunksgard contends that “the use of Morris’s name was incidental to the offense”\n\nbecause (he says) it didn’t influence Drummond Community Bank’s decision to\n\nprovide financing. But again, Munksgard’s position presupposes an element—\n\nsomething like reliance—that § 1028A(a)(1) doesn’t require.\n\n * * *\n\n In sum, we conclude that the plain meaning of the term “use,” particularly\n\nwhen understood in statutory context and in the light of relevant precedent,\n\n\n 16\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 17 of 32\n\n\ndemonstrates that Munksgard unlawfully “use[d]” Kyle Morris’s name within the\n\nmeaning of § 1028A(a)(1).\n\n IV\n\n For the foregoing reasons, we hold (1) that the jury here could find beyond a\n\nreasonable doubt that Drummond Community Bank was FDIC-insured at the time\n\nof Munksgard’s offenses, as required by 18 U.S.C. § 1014, and (2) that when\n\nMunksgard signed Kyle Morris’s name to the fraudulent surveying contract he\n\nsubmitted in support of his loan application, he “use[d]” Morris’s “means of\n\nidentification” within the meaning of 18 U.S.C. § 1028A(a)(1). Accordingly, we\n\naffirm Munksgard’s convictions and sentences.\n\n AFFIRMED\n\n\n\n\n 17\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 18 of 32", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362969/", "author_raw": "NEWSOM, Circuit Judge:"}, {"author": "TJOFLAT, Circuit Judge, dissenting", "type": "dissent", "text": "TJOFLAT, Circuit Judge, dissenting:\n\n To convict Matthew Munksgard of violating 18 U.S.C. § 1014, the\n\ngovernment had to prove that Drummond Community Bank (the “Bank”) was\n\nFDIC-insured when Munksgard committed the offense in 2013 and 2014.\n\nAlthough proving that fact should be “simple and straightforward,” United States\n\nv. Maner, 611 F.2d 107, 112 (5th Cir. 1980), 1 the government consistently has\n\ntrouble with it. Add this case to the list. Here, there was no direct evidence that\n\nthe Bank was insured in either 2013 or 2014—no documentary evidence, witness\n\ntestimony, or otherwise.\n\n Instead, the government presented three pieces of circumstantial evidence.\n\nFirst, it introduced a certificate that shows the Bank’s deposits were insured in\n\n1990, twenty-three years before the crime. Next, it presented testimony from a\n\nBank employee who said that the Bank was currently FDIC-insured (in 2016), a\n\ncouple years after the crime. And finally, the government presented testimony\n\nfrom the same Bank employee who said the Bank isn’t required to renew its FDIC\n\ncertificate “every so often.” Majority Op. at 5. That’s it.\n\n The majority holds that this evidence is “good enough” to allow a reasonable\n\njury to find—beyond a reasonable doubt—that the Bank was FDIC-insured in 2013\n\n\n1\n In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this Court\nadopted as binding precedent all decisions of the former Fifth Circuit handed down by the close\nof business on September 30, 1981.\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 19 of 32\n\n\nand 2014. Majority Op. at 9. But the majority is not writing on a blank slate. It\n\nrelies on our precedent, stretching back to the former Fifth Circuit, to draw the line\n\nbetween what’s sufficient and what’s not. Majority Op. at 9 (“In any event, given\n\nour precedent, what the government presented here was good enough.” (emphasis\n\nadded)). Because I believe the majority misreads this precedent, and in doing so,\n\nviolates Munksgard’s constitutional rights, I respectfully dissent.\n\n I divide my discussion into four parts. First, I explain that no binding\n\nprecedent in this Circuit compels the conclusion the majority reaches. Second,\n\nputting the issue of binding precedent aside, I show that the majority’s analysis,\n\nand its reliance on an evidentiary inference, is unpersuasive. Third, I point out that\n\nthe Bank employee’s testimony about renewal is not additional evidence of insured\n\nstatus. Fourth, I highlight that a misreading of Cook v. United States, 320 F.2d 258\n\n(5th Cir. 1963), has caused courts, including the majority, to apply an\n\nunconstitutional presumption of insured status in these cases.\n\n I.\n\n The majority correctly points out that the problem in this case—whether the\n\ngovernment presented enough evidence to allow a reasonable jury to find beyond a\n\nreasonable doubt that a bank was FDIC-insured at the time of the crime—stretches\n\nback more than half a century, in this Circuit alone. Despite this long history, the\n\n\n\n\n 19\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 20 of 32\n\n\nmajority dives into our precedent with United States v. Fitzpatrick, 581 F.2d 1221\n\n(5th Cir. 1978) (per curiam).\n\n Tellingly, the majority begins its discussion of our precedent by quoting\n\ndicta. The majority writes that in Fitzpatrick this Court “observed that ‘a jury can\n\nreasonably infer that an institution was federally insured on the date of a robbery if\n\nit is presented with evidence showing that the institution was insured both prior to\n\nthat date and recently thereafter.’” Majority Op. at 6 (quoting Fitzpatrick, 581\n\nF.2d at 1223). As the majority concedes, that statement is nothing more than an\n\nobservation, and an unpersuasive one at that.\n\n In Fitzpatrick, the defendant was charged with robbing a bank that was\n\nFDIC-insured. 581 F.2d at 1222. The District Court did not instruct the jury that\n\nthe government must prove the bank’s deposits were FDIC-insured; the District\n\nCourt mistakenly instructed the jury using a different jurisdictional hook. See id. at\n\n1223. On appeal, the Court considered whether that instructional mistake was\n\nreversible error and held that it was. Id. Before reaching its holding, the Court\n\nsaid that “a jury can reasonably infer that an institution was federally insured on\n\nthe date of a robbery if it is presented with evidence showing that the institution\n\nwas insured both prior to that date and recently thereafter.” Id. But this statement\n\nis pure dictum; it is unnecessary to the Court’s holding that the conviction must be\n\nreversed. See In re BFW Liquidation, LLC, 899 F.3d 1178, 1186 (11th Cir. 2018)\n\n\n 20\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 21 of 32\n\n\n(“If a statement is ‘not necessary to the result the Court reached in the case,’ then\n\nthat statement is dictum.” (quoting United States v. Hunter, 172 F.3d 1307, 1310\n\n(11th Cir. 1999) (Ed Carnes, J., concurring))). The Court made clear that the\n\nstatement is dictum because it noted the government proved guilt beyond a\n\nreasonable doubt (which means the government proved insured status), but it still\n\nreversed the conviction. See Fitzpatrick, 581 F.2d at 1223–24. As dictum, the\n\nstatement “is not binding on anyone for any purpose.” BFW Liquidation, 899 F.3d\n\nat 1186 (quoting Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010)).\n\n If any case in this Circuit actually held what the Court said in Fitzpatrick,\n\nthe majority surely would have started there. But no case holds that a jury may\n\ninfer insured status based on prior and subsequent status.\n\n Backtracking a bit, the parties agree that the Circuit’s law on this problem\n\nbegins with Cook v. United States, 320 F.2d 258 (5th Cir. 1963). Indeed, the\n\nmajority eventually cites Cook and mimics its analysis. But Cook helps the\n\nmajority no more than Fitzpatrick.\n\n In Cook, the defendant was convicted of robbing an FDIC-insured bank.\n\n320 F.2d at 259. To prove that the bank was insured at the time of the robbery, the\n\ngovernment called the bank’s vice president. Id. The vice president testified that\n\nthe bank’s deposits were covered by the FDIC. Id. That’s it; the vice president\n\nsaid nothing about whether the bank was insured when it was robbed. Importantly,\n\n\n 21\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 22 of 32\n\n\nthe defendant never objected, never filed a motion for judgment of acquittal, and\n\nnever filed a motion for a new trial. Id. Thus, on appeal, the Court reviewed—\n\nunder the plain error standard—whether the government presented enough\n\nevidence to prove that the bank was FDIC-insured when it was robbed. Id.\n\n To answer the evidentiary question, the Court relied on what it called an\n\nevidentiary “rule” (really, though, the rule is just a logical inference): “When the\n\nexistence of an object, condition, quality, or tendency at a given time is in issue,\n\nthe prior existence of it is in human experience some indication of its probable\n\npersistence or continuance at a later period.” See id. (quoting 2 John H. Wigmore,\n\nWigmore on Evidence 413, § 437). Similarly, evidence of “subsequent existence”\n\ncan be some indication of earlier existence. See id. I call this Wigmore’s\n\ninference.\n\n Applying Wigmore’s inference, if a bank was FDIC-insured at some point\n\nbefore the crime was committed, it’s more likely that the bank was also FDIC-\n\ninsured later, when the crime was committed. Id. Similarly, if a bank was FDIC-\n\ninsured at some point after the crime was committed, it’s more likely that the bank\n\nwas also FDIC-insured earlier, when the crime was committed. Id.\n\n Below, I explain why this type of inference is inappropriate to prove FDIC-\n\ninsured status. But first, I explain exactly how the Court in Cook used this\n\n\n\n\n 22\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 23 of 32\n\n\ninference—which depended heavily on the plain error standard of review—\n\nbecause Cook’s use of it is fatal to the majority’s analysis.\n\n The Court in Cook did not apply Wigmore’s inference in a vacuum; it\n\napplied the inference in the context of plain error review. The Court explained\n\n“that the common knowledge of the nearly universal prevalence of the banks of the\n\nUnited States having their deposits insured by the Federal Deposit Insurance\n\nCorporation permits, if it does no[t] require, an inference under the rule stated by\n\nWigmore that the [relevant] bank was insured at the time it was [robbed].” Id. at\n\n259–60. But why was the Court looking outside the judicial proceedings to the\n\n“nearly universal prevalence” of FDIC-insured banks? After all, the bank’s\n\ninsured status at the time of the crime is a fact that must always be found—beyond\n\na reasonable doubt—by the jury. And, of course, the jury can’t rely on “nearly\n\nuniversal prevalence” to make the inference that Cook endorsed. There’s nothing\n\nin the jury instructions about that.\n\n The standard of review answers the question: the Court was looking outside\n\nthe judicial proceedings because it was required to do so under plain error review. 2\n\n\n2\n This might not be obvious at first glance because the Court in Cook did not list the four factors\nof plain error review. I focus my discussion on the fourth factor. Under the first three factors of\nplain error review, a party must show “(1) the district court erred; (2) the error was plain; and (3)\nthe error affected the party’s substantial rights.” United States v. Hernandez, 906 F.3d 1367,\n1370 (11th Cir. 2018) (citing United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)).\nThe majority understandably argues that Cook was analyzing the third factor of plain error\nreview, not the fourth. See Majority Op. at 9 n.1. Indeed, the Court in Cook did say that the\n\n 23\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 24 of 32\n\n\nThe fourth factor of plain error review asks whether the error—here, insufficient\n\nevidence on a jury-found fact in a criminal case—“seriously affected the fairness,\n\nintegrity, or public reputation of judicial proceedings.” United States v.\n\nHernandez, 906 F.3d 1367, 1370 (11th Cir. 2018) (emphasis added) (quoting\n\nRodriguez, 398 F.3d at 1298). The purpose of the fourth element is to analyze\n\nwhether a “reasonable citizen would[] bear a rightly diminished view of the\n\njudicial process and its integrity if” the court refused to correct the alleged error.\n\nSee Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (quoting\n\nUnited States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014)). It’s\n\nabout institutional legitimacy.\n\n Here’s the upshot. The court in Cook highlighted the “universal prevalence”\n\nof insured status to show why, assuming the District Court erred, the error would\n\nnot affect the integrity of the judiciary. The error was not egregious—and a\n\nreasonable citizen wouldn’t think any less of the judiciary—because the “universal\n\n\ncriminal defendant “ha[d] not been deprived of any substantial right.” 320 F.2d at 260.\nAlthough the Court used the substantial-right language, it couldn’t have been applying the third\nfactor. Here’s why. The third factor assumes the lower court made an error and basically asks\nwhether the error was prejudicial. See Hernandez, 906 F.3d at 1371 (noting that reviewing\ncourts analyzing the third factor ask whether there is “a reasonable probability that the outcome\nwould have been different if the district court” had not erred). An error like the one alleged in\nCook—allowing a conviction to stand even though there wasn’t enough evidence to prove an\nelement of the crime—always satisfies the third factor. It’s always prejudicial. If the\ngovernment doesn’t prove every element beyond a reasonable doubt, the defendant must be\nacquitted. So, again, I say the Court in Cook was really applying the fourth factor. It used the\nuniversal prevalence of insured status to explain why the general public would not lose sleep\nknowing that the judiciary allowed this mistake to slide by uncorrected. Because odds are,\naccording to the Court, the bank was insured at the time of the crime.\n 24\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 25 of 32\n\n\nprevalence” of insured status was “common knowledge” among reasonable\n\ncitizens. That is, even if the government’s evidence of insured status was a little\n\nthin, the error was not the type of egregious error that would cause reasonable\n\ncitizens to question the judiciary’s ability to do its job.\n\n Simply put, Cook does not stand for the proposition that evidence of prior\n\ninsured status and evidence of later insured status is enough to uphold a criminal\n\nconviction when a criminal defendant appeals the denial of his motion for\n\nacquittal. Nor does it say there is no error when the government uses evidence of\n\nprior and later insured status to prove insured status at some point in the middle.\n\nCook stands for the proposition that, in some circumstances, a conviction based on\n\nevidence of prior insured status and later insured status need not be overturned on\n\nplain error review.\n\n When Cook is read in its proper context, it clearly cannot support the weight\n\nthe majority gives it. Indeed, the majority uses Cook as the bedrock of its analysis.\n\nIt uses Cook, which relied on Wigmore’s inference, to support its conclusion that\n\nprior insured status plus later insured status reasonably equals insured status at\n\nsome point in the middle.\n\n Although Cook provides no precedential support for the majority’s analysis,\n\nits use of Wigmore’s inference could still provide a persuasive analytical\n\nframework. A quick analysis of the inference shows it does not.\n\n\n 25\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 26 of 32\n\n\n II.\n\n As additional support for Wigmore’s inference, the Court in Cook cited F.W.\n\nWoolworth Co. v. Seckinger, 125 F.2d 97 (5th Cir. 1942). Cook, 320 F.2d at 259.\n\nWoolworth, which also applied Wigmore’s inference, shows why the inference is\n\ninappropriate to prove FDIC-insured status.\n\n The plaintiff in Woolworth fell while shopping at the defendant’s store. 125\n\nF.2d at 97. She sued, alleging the store’s defective condition—the result of “wear\n\nand decay”—caused her fall. Id. at 97, 98. At trial, a witness who had seen the\n\nfloor testified about its condition. Id. at 97–98. But the witness saw the floor\n\nforty-five days after the accident. Id. Thus, one of the issues on appeal was\n\nwhether this witness’s testimony was admissible. Id. at 97.\n\n The Court, applying Wigmore’s inference,3 concluded that testimony about\n\nthe floor’s condition forty-five days after the accident was “evidential of its earlier\n\ncondition.” Id. at 98. The Court noted that “[w]here the condition is of such\n\ncharacter that a brief lapse of time would not affect it materially, the subsequent\n\nexistence of the condition may give rise to an inference that it previously existed.”\n\nId. (emphasis added). With nothing but ordinary wear and tear to change the\n\nfloor’s condition, the Court concluded that the floor’s condition would not\n\nmaterially change in forty-five days. See id.\n\n\n3\n See id. at 98 n.2.\n 26\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 27 of 32\n\n\n Wigmore’s inference, though sensical in a civil case like Woolworth, makes\n\nlittle sense here. The condition at issue in Woolworth was the defective condition\n\nof the floor. The defective floor was not something that would materially change\n\nin a short period of time because (1) it became defective over a long period of time,\n\ndue to ordinary wear and tear, and (2) the only thing that could change the\n\ndefective condition was more wear and tear, which takes a lot of time. By contrast,\n\nthe condition at issue here is the Bank’s insured status, and insured status can\n\nmaterially change in a short period of time. See United States v. Stuart-Caballero,\n\n686 F.2d 890, 893 (11th Cir. 1982) (“Continued FDIC insurance coverage,\n\nhowever, depends on periodic payment of premiums.”) For example, insured\n\nstatus could change at least four times a year, every time a premium payment is\n\ndue. 4 So, from 1990 to 2013, there were around ninety-two chances for the Bank’s\n\ninsured status to change. And from 2014 to 2016, there were eight more chances.\n\nThe point is that evidence of prior and later insured status has little probative value\n\nbecause there were tons of chances for the Bank to lose its insured status.5\n\n\n4\n See 12 C.F.R. § 308.120(a)(3) (listing an insured institution’s violation of “an applicable law,\nrule, regulation, order, [or] condition” as one ground for involuntarily terminating insured\nstatus); id. § 327.3 (requiring insured institutions to pay quarterly assessments). See also Doolin\nSec. Sav. Bank, F.S.B. v. F.D.I.C., 53 F.3d 1395, 1408 (4th Cir. 1995) (“conclud[ing] that the\nFDIC has the authority to instigate a termination of insurance proceeding when an institution\nviolates applicable law and withholds portions of its insurance assessments”).\n5\n I do not mean to suggest that evidence of prior and later insured status is completely irrelevant.\nI readily agree with Wigmore’s inference that prior and later evidence is “some indication” of\ninsured status between the two dates. See Cook, 320 F.2d at 259 (quoting 2 Wigmore, supra, at\n\n\n 27\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 28 of 32\n\n\n Because Wigmore’s inference makes little sense in a case like this, Cook\n\nfails to provide a persuasive analytical framework for the majority to use.\n\nAlthough the majority’s analysis leans heavily on Cook, it doesn’t rely exclusively\n\non Cook.\n\n III.\n\n In addition to showing “prior existence” and “subsequent existence” of\n\nFDIC-insured status, the majority also relies on the Bank employee’s testimony\n\nthat the Bank isn’t required to renew its FDIC certificate “every so often.” A\n\nreasonable jury, according to the majority, “could conclude that [t]his testimony\n\nprovides additional evidence—beyond mere prior and subsequent existence—that\n\n[the Bank] was insured in 2013 and 2014.” Majority Op. at 9.\n\n Two quick points. First, the Bank’s employee did not say that the FDIC\n\ncertificate is never renewed. In response to the question “[d]o you know whether\n\nor not this certificate is renewed,” he answered “[i]t’s not.” Second, the employee\n\nsaid nothing about whether the FDIC insurance itself must be renewed. The FDIC\n\ncertificate only shows that the Bank got FDIC-insured status in 1990. It doesn’t\n\nshow whether the Bank has done everything it needs to do to keep insured status,\n\nsuch as pay its premiums. This is surely why the government had a conviction\n\n\n\n413, § 437). But just how indicative are the two pieces of evidence? We don’t know. At\nbottom, “some indication” of insured status is not enough to prove the Bank was FDIC-insured\nbeyond a reasonable doubt.\n 28\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 29 of 32\n\n\nvacated in a case where it presented only a certificate of FDIC insurance that was\n\ndated seven years before the offense. See United States v. Platenburg, 657 F.2d\n\n797, 800 (5th Cir. 1981).6\n\n Thus, I do not see how the Bank employee’s testimony makes it more likely\n\nthat the Bank was FDIC-insured in 2013 and 2014.\n\n At this point, I’ve covered all of the majority’s analysis that relates to\n\nevidence introduced at trial. Finally, I address the presumption—a presumption\n\nthe majority applied against a criminal defendant.\n\n IV.\n\n According to the majority, “Coupled with the ‘universal presumption . . .\n\nthat all banks are federally insured’—and viewing the proof in the light most\n\nfavorable to the government—we conclude that a reasonable juror could find that\n\n[the Bank] was insured by the FDIC on the dates of Munksgard’s offenses.”\n\nMajority Op. at 10 (first alteration in original) (internal citation omitted) (quoting\n\nManer, 611 F.2d at 110). This “universal presumption” is wrong on three fronts.\n\n First, the presumption is wrong as a matter of precedent. The universal\n\npresumption language comes from this Court’s decision in Maner. 611 F.2d at\n\n\n\n\n6\n Platenburg came down a day too late to qualify as binding precedent under Bonner. See\nBonner, 661 F.2d at 1207. But it relied exclusively on cases that are binding on this Court.\nThus, Platenburg is persuasive authority, and the majority—which included Platenburg when\ncanvassing our precedent—seems to agree.\n 29\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 30 of 32\n\n\n110. But Maner clearly misread Cook when it used the language. Compare id.\n\n(“[I]t is at least arguable that the universal presumption employed in the Cook case\n\nthat all banks are federally insured could be applied here.”), with Cook, 320 F.2d at\n\n259–60 (noting the “common knowledge of the nearly universal prevalence” of\n\nFDIC-insured banks). The Court in Cook noted the universal prevalence of\n\ninsured status—it said nothing about a universal presumption. The majority never\n\nacknowledges this misreading.\n\n As I explained above, the Court in Cook used the universal prevalence\n\nlanguage in the context of plain error review, which required the Court to look\n\noutside the judicial proceedings. Really, the Court in Cook took judicial notice of\n\nthe universal prevalence. But that isn’t problematic because the fourth factor of\n\nplain error review requires courts to consider facts outside the proceedings.\n\nSimilarly, the Court in Maner effectively took judicial notice of the universal\n\npresumption that banks are FDIC-insured. But this is hugely problematic because\n\nthe Court in Maner did not apply plain error review; it was considering a denied\n\nmotion for judgment of acquittal on the theory that the government didn’t prove\n\ninsured status. 611 F.2d at 108. And even if Cook had taken judicial notice of this\n\nfact when reviewing a denied motion for judgment of acquittal, the Court in Maner\n\ncould not borrow that finding from Cook and treat it as conclusive. See Grayson v.\n\nWarden, Comm’r, Ala. DOC, 869 F.3d 1204, 1224–25 (11th Cir. 2017). The Court\n\n\n 30\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 31 of 32\n\n\nin Maner took judicial notice of a disputed fact, clearly violating Rule 201 of the\n\nFederal Rules of Evidence. See Fed. R. Evid. 201(b) (noting “[t]he court may\n\njudicially notice a fact that is not subject to reasonable dispute”). The majority’s\n\nanalysis highlights the danger in relying on a later case’s after-the-fact\n\ninterpretation of an earlier one.\n\n Second, the jury could not have applied this universal presumption because\n\nthey weren’t instructed on it. The jury was instructed that its “decision must be\n\nbased only on the evidence presented during the trial,” and it was instructed that\n\nthe government must prove beyond a reasonable doubt that the Bank’s deposits\n\nwere FDIC-insured. Thus, the universal presumption—which was injected into\n\nour case law because Maner misread Cook—should not be part of the sufficiency\n\nof the evidence analysis. This is an unremarkable conclusion because, if the\n\nmajority’s statement of the law were correct, the government would be relieved of\n\nits duty to prove every element of the crime beyond a reasonable doubt. That\n\nwould violate the Constitution. See Apprendi v. New Jersey, 530 U.S. 466, 477,\n\n120 S. Ct. 2348, 2356 (2000) (“[A] criminal defendant [is entitled] to ‘a jury\n\ndetermination that [he] is guilty of every element of the crime with which he is\n\ncharged, beyond a reasonable doubt.’” (third alteration in original) (quoting\n\nUnited States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313 (1995))). And\n\neven if the presumption didn’t violate the Constitution, it would require criminal\n\n\n 31\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 32 of 32\n\n\ndefendants to prove a negative, and all of the evidence would be in the\n\ngovernment’s possession.\n\n Third, even if the Constitution permitted this kind of common law\n\npresumption in a criminal case, the government doesn’t need it. A presumption\n\nthat some condition exists might be relevant when a district court is deciding\n\nwhether evidence is admissible. But courts never apply a presumption to help a\n\nparty satisfy its burden of proof—and, in turn, force the opposing party to present\n\ncontrary evidence—when the party with the burden of proof already has in its\n\npossession all the evidence it needs. In fact, when a party has relevant evidence in\n\nhis control and doesn’t produce it, the failure to produce it can in some cases\n\n“give[] rise to an inference that the evidence is unfavorable to him.” See Callahan\n\nv. Schultz, 783 F.2d 1543, 1545 (11th Cir. 1986) (per curiam) (quoting Int’l Union\n\n(UAW) v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972)). I am unaware of any area\n\nof the law that recognizes a presumption to help the party that already has the\n\nevidence it needs.\n\n * * *\n\n The majority goes to great lengths to bail the government out. Nothing in\n\nour precedent compels this, and the Constitution doesn’t allow it. Because I would\n\nvacate the conviction, I respectfully dissent.\n\n\n\n\n 32", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362969/", "author_raw": "TJOFLAT, Circuit Judge, dissenting"}]} | TJOFLAT | MARCUS | NEWSOM | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585716/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Matthew G. MUNKSGARD, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-17654 Date Filed: 01/30/2019 Page: 1 of 32\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-17654\n ________________________\n\n D.C. Docket No. 1:15-cr-00012-MP-GRJ-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n versus\n\nMATTHEW G. MUNKSGARD,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Florida\n ________________________\n\n (January 30, 2019)\n\nBefore TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n This criminal appeal presents both a surprisingly close question of\n\nevidentiary sufficiency—so close, in fact, that it has prompted a dissent—and an\n\ninteresting statutory-interpretation issue. As to the former, federal law criminalizes\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 2 of 32\n\n\nthe act of knowingly making a false statement in order to obtain a loan from a bank\n\nthat is insured by the FDIC. 18 U.S.C. § 1014. Matthew Munksgard admits to\n\nknowingly making false statements in order to obtain bank loans—indeed, four\n\ntimes over. Even so, he contends, the government failed to show beyond a\n\nreasonable doubt, as it had to, that the institution he swindled was FDIC-insured.\n\nThis case presents the (irritatingly familiar) question whether the government\n\npresented sufficient evidence to prove that pesky jurisdictional prerequisite. The\n\nproof of FDIC insurance here—as in other cases in which we have rapped the\n\ngovernment’s knuckles—was hardly overwhelming. And given the ease with\n\nwhich insurance coverage could have been demonstrated—certificate, contract,\n\ncancelled check, etc.—inexplicably so. Having said that, “overwhelming” isn’t the\n\nstandard, and when we view the evidence in the light most favorable to the\n\ngovernment, as we must, see United States v. Frank, 599 F.3d 1221, 1233 (11th\n\nCir. 2010), we conclude—albeit reluctantly—that the proof was adequate to\n\ndemonstrate Munksgard’s guilt beyond a reasonable doubt. But let this be a\n\nwarning to federal prosecutors: You are (as the author’s mother used to say)\n\ncruisin’ for a bruisin’. Don’t apologize—do better.\n\n Now, the statutory-interpretation issue: Federal law makes it a crime for any\n\nperson to “use[], without lawful authority, a means of identification of another\n\nperson.” 18 U.S.C. § 1028A(a)(1). The jury here found that Munksgard violated\n\n\n 2\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 3 of 32\n\n\nthis statute when, in an effort to obtain financing to support his land-surveying\n\nbusiness, he forged another person’s name to a surveying contract that he\n\nsubmitted to a bank in support of his loan application. The question before us is\n\nwhether Munksgard’s conduct qualifies as a prohibited “use[]” within the meaning\n\nof § 1028A(a)(1). Munksgard insists that we should cabin the meaning of “use[]”\n\nto crimes in which the accused attempted to impersonate, or act “on behalf of,”\n\nsomeone else. We disagree. Plain meaning, statutory context, and existing\n\nprecedent all show that Munksgard “use[d]” his victim’s means of identification\n\nwhen he employed that person’s signature to obtain the loan and thereby converted\n\nthe signature to his own service.\n\n I\n\n Matthew Munksgard began banking with Drummond Community Bank in\n\nthe late 1990s. Drummond is a relatively small bank; at the time of trial, it\n\noperated in only a few counties in west central Florida. Munksgard obtained his\n\nfirst drawdown line of credit from Drummond in 2010 to fund his work as a land\n\nsurveyor. After repaying that loan without incident, in 2012 Munksgard obtained\n\ntwo more drawdown lines. He also repaid those loans, albeit once from a different\n\nsource of funds than he had indicated in his loan application.\n\n That’s when the real trouble started. The next year, Munksgard applied for\n\nyet another line of credit from Drummond, this time supported by a surveying\n\n\n 3\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 4 of 32\n\n\ncontract with a company called Cal-Maine Foods. That contract showed the\n\nsignature of Cal-Maine employee Kyle Morris. Munksgard now admits that the\n\ncontract was fraudulent and that he signed Morris’s name to it without Morris’s\n\nknowledge or permission.\n\n Munksgard obtained three more lines of credit from Drummond over the\n\nnext two years. He supported a 2013 credit application with a contract with\n\nMaxwell Plum Creek signed, on Plum Creek’s behalf, by an “S. Riggins.” Plum\n\nCreek had no knowledge of the contract, and “S. Riggins” didn’t exist.\n\nMunksgard’s third and fourth credit applications, both in 2014, followed a similar\n\npattern. To support them, Munksgard submitted contracts with St. Johns River\n\nWater Management and Triple Bell Farms. Both contracts were fraudulent, and\n\nboth were signed by fictional employees—“Ross Rawlings” for St. Johns River\n\nand “Jason Hanold” for Triple Bell.\n\n Three years and four unpaid loans in, Drummond started asking questions\n\nand ultimately contacted the FBI. A grand jury later indicted Munksgard on four\n\ncounts of knowingly making a false statement in order to obtain a loan from an\n\nFDIC-insured bank, in violation of 18 U.S.C. § 1014, and one count of aggravated\n\nidentity theft for his placement of Kyle Morris’s signature on the Cal-Maine Foods\n\ncontract, in violation of 18 U.S.C. § 1028A.\n\n\n\n\n 4\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 5 of 32\n\n\n At trial, the government presented three pieces of evidence to prove that\n\nDrummond was FDIC-insured when Munksgard submitted the fraudulent\n\nmaterials: (1) a certification indicating that the bank’s deposits were insured when\n\nit was initially chartered in 1990; (2) testimony from a veteran bank employee,\n\nDavid Claussen, that Drummond was currently (i.e., in 2016) FDIC-insured; and\n\n(3) Claussen’s further testimony that the bank isn’t required to “renew[]” its FDIC\n\ncertificate “every so often.”\n\n The jury convicted Munksgard on all five counts. The district court\n\nsentenced Munksgard to six months in prison for the fraudulent credit applications\n\nand to a consecutive 24 months for aggravated identity theft.\n\n II\n\n We begin with Munksgard’s bank-fraud conviction under 18 U.S.C. § 1014.\n\nSection 1014 prescribes stiff penalties for anyone who “knowingly makes any false\n\nstatement . . . for the purpose of influencing in any way the action of any institution\n\nthe accounts of which are insured by the Federal Deposit Insurance Corporation.”\n\n18 U.S.C. § 1014. For purposes of appeal, all agree that Munksgard (1) knowingly\n\n(2) made false statements (3) in order to obtain financing from Drummond\n\nCommunity Bank. That gets the government three-quarters of the way home.\n\nMunksgard contends, though, that the government didn’t quite finish the job—in\n\nparticular, he says, it failed to present sufficient evidence to prove beyond a\n\n\n 5\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 6 of 32\n\n\nreasonable doubt that Drummond was FDIC-insured at the time he submitted the\n\nfraudulent loan applications.\n\n We’ve seen this play before—part comedy, part tragedy. For reasons that\n\nleave us mystified, in cases involving federally insured banks—bank robbery, bank\n\nfraud, etc.—the government continues to stub its toe in seeking to prove the\n\nseemingly straightforward, but nonetheless jurisdictionally “indispensable,”\n\nelement of FDIC insurance. See United States v. Platenburg, 657 F.2d 797, 799\n\n(5th Cir. Unit A Oct. 1981). In our Circuit alone, the problem stretches back more\n\nthan half a century. For the good of all involved, we’ll pick up the story in 1978,\n\nwhen we (then part of the old Fifth) considered a bank-robbery case in which the\n\ngovernment had presented evidence indicating that the institution at issue had been\n\ninsured (1) ten years before the crime and (2) at the time of the trial. Citing our\n\nown precedent, as well cases from the Sixth, Seventh, and Eighth Circuits\n\nconfronting the same question, we observed that “a jury can reasonably infer that\n\nan institution was federally insured on the date of a robbery if it is presented with\n\nevidence showing that the institution was insured both prior to that date and\n\nrecently thereafter.” United States v. Fitzpatrick, 581 F.2d 1221, 1223 (5th Cir.\n\n1978) (citations omitted). We hastened to add, however—the proverbial shot\n\nacross the bow—that “the government obviously could have done a much better\n\njob of proving the bank’s insured status at the date of the crime.” Id.\n\n\n 6\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 7 of 32\n\n\n Two years later, in what would later be described as the “nadir of the\n\nacceptable level of proof,” Platenburg, 657 F.2d at 800, we found—“[j]ust\n\nbarely”—that a reasonable jury could conclude that the target bank was insured at\n\nthe time of the offense based on evidence that it had FDIC insurance five years\n\nearlier. United States v. Maner, 611 F.2d 107, 110–112 (5th Cir. 1980). We\n\ndeemed it “at least arguable” that the jury could indulge “the universal\n\npresumption . . . that all banks are federally insured”—and further “that a\n\nreasonable jury could infer beyond a reasonable doubt that proof of the condition\n\nof insurance before the robbery, absent evidence to the contrary, suggests the\n\ncontinuation of that insurance.” Id. at 110.\n\n Once again—this time more vigorously—we expressed our annoyance. We\n\nemphasized our “difficulty comprehending why the Government repeatedly fails to\n\nprove this element more carefully since the Government’s burden is so simple and\n\nstraightforward,” and we warned that “the Government had tread[ed] perilously\n\nclose to reversal in th[at] case, and may soon find itself crossing the line from\n\nsufficiency to insufficiency.” Id. at 112. Underscoring what we described as a\n\n“plague infecting United States Attorneys throughout the land,” our opinion\n\nincluded a 760-word “digest” of cases in which appellate courts had considered\n\nwhether the government had failed to shoulder its proof-of-insurance burden.\n\nMore generously, we even offered suggestions for how the government could\n\n\n 7\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 8 of 32\n\n\nprove this “simple but indispensable fact”—a certificate of FDIC coverage\n\nspanning the date of the crime, an insurance contract, a cancelled check, etc. Id. at\n\n112 n.2.\n\n Our warnings went unheeded. In Platenburg, the government presented\n\nonly a certificate of FDIC insurance that predated the offense by seven years—\n\nnothing more. Enough had finally become enough: “The day ha[d] come; the line\n\nfrom sufficiency to insufficiency ha[d] been crossed.” 657 F.2d at 799.\n\n So then, what of this case? Notwithstanding our sympathy for our dissenting\n\ncolleague’s exasperation, we don’t think the line has been crossed here. The\n\ngovernment’s evidence of insurance, while not overwhelming, was sufficient to\n\nprove beyond a reasonable doubt that Drummond Community Bank was FDIC-\n\ninsured. In one of the first cases to address the FDIC-insurance issue, we quoted\n\nProfessor Wigmore for the following logico-evidentiary propositions: first,\n\n“[w]hen the existence of an object, condition, quality, or tendency at a given time\n\nis in issue, the prior existence of it is in human experience some indication of its\n\nprobable persistence or continuance at a later period”; and second, “[s]imilar\n\nconsiderations affect the use of subsequent existence as evidence of existence at\n\nthe time in issue.” Cook v. United States, 320 F.2d 258, 259 (5th Cir. 1963)\n\n\n\n\n 8\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 9 of 32\n\n\n(citations omitted).1 Thus, at least in some circumstances, evidence of either\n\n“prior” or “subsequent” insurance, even standing alone, can be adequate proof of\n\ncoverage at the time of the offense. 2 Needless to say, we much prefer both—and\n\ncontemporaneous evidence is even better. 3\n\n\n\n1\n The Dissent objects to our citation to Cook on the ground that the court there was reviewing\nonly for plain error, whereas here we review Munksgard’s sufficiency-of-the-evidence argument\nde novo. See Dissenting Op. at 21–25. There are two problems. First, in its effort prove that\n“[t]he standard of review answers the question” and conclusively distinguishes Cook, id. at 6, the\nDissent strains to make Cook say something it doesn’t. In particular, the Dissent insists that the\nCook court “was looking outside the judicial proceedings”—that is, to Wigmore’s commonsense\npropositions that prior and subsequent existence imply current existence—“because it was\nrequired to do so under plain error review,” and in particular under “[t]he fourth factor,” which\nasks whether the alleged error “seriously affected the fairness, integrity, or public reputation of\njudicial proceedings.” Dissenting Op. at 23 (quoting United States v. Hernandez, 906 F.3d 1367,\n1370 (11th Cir. 2018)) (emphasis added by the Dissent). In fact, though, the Cook court\nemphasized the third plain-error factor—whether the alleged error affected “substantial rights,”\nCook, 320 F.2d at 260—so the hinge on which the Dissent’s distinction of Cook swings turns out\nnot to work. Second, and in any event, we mustn’t forget while our sufficiency review here is de\nnovo, it remains the case that Munksgard’s conviction “must be upheld unless the jury could not\nhave found the defendant guilty under any reasonable construction of the evidence.” United\nStates v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010) (quoting United States v. Chastain, 198\nF.3d 1338, 1351 (11th Cir. 1999)). It seems to us hardly controversial that a jury could\nreasonably consider what we have called Wigmore’s “logico-evidentiary propositions”—\ncoverage before + coverage after = coverage in between—in determining whether Drummond\nwas insured when Munksgard swindled it.\n2\n The Dissent concedes as much—see Dissenting Op. at 25–26 (approving of the propositions’\napplication in Woolworth Co. v. Seckinger, 125 F.2d 97 (5th Cir. 1942))—but asserts that\napplying Wigmore’s propositions “makes little sense in a case like this,” where the relevant\ncondition may change over a brief period of time. Dissenting Op. at 26–27. Fair enough:\nhypothetically, a bank could lose its insured status at midnight tonight, noon tomorrow, or as we\nwrite this sentence. But as a “nearly universal” matter, banks don’t. Cook, 320 F.2d at 259.\nMunksgard bore the burden on appeal to demonstrate that it was unreasonable for a jury\npresented with evidence of Drummond’s prior and subsequent insurance to conclude that\nDrummond was insured during the period in between. We have difficulty understanding how a\njury determination that squares with common experience is unreasonable.\n3\n A little Google sleuthing presumably would have revealed that Drummond’s FDIC insurance\nwas (as it appears to be now) “Active.” See Fed. Deposit Ins. Corp., BankFind (data as of Dec.\n5, 2018).\n\n 9\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 10 of 32\n\n\n In any event, given our precedent, what the government presented here was\n\ngood enough. First, the government introduced a certificate of FDIC insurance\n\nissued when Drummond Community Bank was initially chartered in 1990—\n\nevidence (in Wigmore’s terms) of “prior existence.” Second, David Claussen,\n\nDrummond’s Senior Vice President and Chief Underwriter, testified that the bank\n\nwas insured at the time of trial in 2016—“subsequent existence.” Finally, when\n\nasked whether Drummond’s FDIC certificate is renewed “every so often,”\n\nClaussen—who had spent 25 years at the small bank, and was therefore likely to be\n\nfamiliar with its administration and operations—testified that it isn’t. We think it\n\nclear that a reasonable jury could conclude that his testimony provides additional\n\nevidence—beyond mere prior and subsequent existence—that Drummond was\n\ninsured in 2013 and 2014, when Munksgard submitted the fraudulent contracts.\n\n * * *\n\n Considering all of the evidence, the government proved beyond a reasonable\n\ndoubt that Drummond Community Bank was insured by the FDIC both before and\n\nafter Munksgard’s offenses and that it didn’t need to renew its insurance in the\n\ninterim. Coupled with the “universal presumption . . . that all banks are federally\n\ninsured,” Maner, 611 F.2d at 110 4—and viewing the proof in the light most\n\n\n4\n To be clear, neither we nor the Maner court are taking official notice of a disputed fact so much\nas acknowledging the state of the world—an exercise that is necessarily part of any review of the\nreasonableness of a jury’s decision. See Dissenting Op. at 29–30.\n\n 10\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 11 of 32\n\n\nfavorable to the government—we conclude that a reasonable juror could find that\n\nDrummond was insured by the FDIC on the dates of Munksgard’s offenses.\n\n III\n\n Now, to Munksgard’s conviction for aggravated identity theft under 18\n\nU.S.C. § 1028A, which was based on his signing Kyle Morris’s name to the\n\nfraudulent contract with Cal-Maine Foods. Section 1028A(a)(1) provides:\n\n“Whoever, during and in relation to any felony violation enumerated in subsection\n\n(c), knowingly transfers, possesses, or uses, without lawful authority, a means of\n\nidentification of another person shall, in addition to the punishment provided for\n\nsuch felony, be sentenced to a term of imprisonment of 2 years.”\n\n As with the fraud counts, all but one of the elements required to convict\n\nMunksgard under § 1028A are straightforward. First, § 1028A(a)(1)’s “during and\n\nin relation to” clause covers Munksgard’s § 1014 offense. Among other crimes\n\nenumerated in “subsection (c)” of § 1028A is “any provision contained in this\n\nchapter [47] (relating to fraud and false statements) . . . .” 18 U.S.C. §\n\n1028A(c)(4). Chapter 47, in turn, “contain[s]” § 1014, which forbids “knowingly\n\nmak[ing] any false statement” for the purpose (as relevant here) of obtaining\n\nfinancing from an FDIC-insured bank. Second, Munksgard does not dispute that\n\nhe “knowingly” signed Morris’s name to the contract. Third, § 1028 defines\n\n“means of identification” as “any name or number that may be used, alone or in\n\n\n 11\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 12 of 32\n\n\nconjunction with any other information, to identify a specific individual, including\n\nany—name . . . .” 18 U.S.C. § 1028A(d)(7)(A). So, it seems clear to us, “/s/ Kyle\n\nMorris” counts as a “means of identification.” Finally, Munksgard admits that he\n\nsigned Morris’s name “without lawful authority.” 18 U.S.C. § 1028A(a)(1).\n\n That leaves the verb. The government also had to prove, as pertinent here,\n\nthat Munksgard “use[d]” Morris’s identity. Citing United States v. Berroa, 856\n\nF.3d 141 (1st Cir. 2017), and United States v. Miller, 734 F.3d 530 (6th Cir. 2013),\n\nMunksgard insists that the term “use[]”in § 1028A “require[s] that the defendant\n\nattempt to pass him or herself off as another person or purport to take some other\n\naction on another person’s behalf.” Berroa, 856 F.3d at 156. Munksgard says that\n\nbecause he only signed Morris’s name, and didn’t try to impersonate Morris or\n\notherwise act on his behalf, he didn’t “use[]” Morris’s identification.\n\n We aren’t persuaded. Rather, we find ourselves in agreement with the Sixth\n\nCircuit’s recent (post-Miller) decision in United States v. Michael, which held that\n\na pharmacist had “used” a doctor’s and patient’s “means of identification”—even\n\nthough he impersonated neither—when he included the doctor’s National Provider\n\nIdentifier and the patient’s name and birthdate on a fraudulent insurance claim.\n\n882 F.3d 624, 628 (6th Cir. 2018). Like the Michael court, we begin with the\n\nordinary meaning of the term “use”—and, in particular, how standard English-\n\nlanguage dictionaries define the verb “use” when employed in conjunction with a\n\n\n 12\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 13 of 32\n\n\nparticular object, as in to “use[] . . . a means of identification.” In Webster’s\n\nSecond, for instance, to “use” an object is “[t]o convert [it] to one’s service; to\n\navail oneself of [it]; to employ [it]; as, to use a plow, a chair, a book.” Webster’s\n\nSecond New International Dictionary 2806 (1944). Webster’s Third likewise\n\ndefines “use” vis-à-vis an object to mean “to put [it] into action or service”—e.g.,\n\n“whether he would ever [use] the tie she had given him.” Webster’s Third New\n\nInternational Dictionary 2523 (2002). In Oxford, more of the same: “take, hold, or\n\ndeploy (something) as a means of accomplishing or achieving something; employ;\n\n[as in] she used her key to open the front door.” Oxford Dictionary of English\n\n1958 (3d ed. 2010). And as proof that “use” does not bear some idiosyncratic\n\nconnotation in the legal context, we note that Black’s too defines the verb form to\n\nmean “[t]o employ for the accomplishment of some purpose” or “to avail oneself\n\nof.” Black’s Law Dictionary 1776 (10th ed. 2014). On plain meaning alone,\n\ntherefore, it seems clear to us that Munksgard “use[d]” a means of identification in\n\nthat he “employed” Morris’s name in order to procure a bank loan, and thereby\n\n“convert[ed]” Morris’s name “to [his] service.”5\n\n\n\n\n5\n As employed in § 1028A, the term “use” no doubt covers impersonations, but impersonations\ndo not exhaust the term’s meaning. Just as the Supreme Court in Smith v. United States, 508\nU.S. 223 (1993), rejected the argument that combining “use” with “firearm” meant that the\nstatute criminalized only using qua shooting, so here “us[ing] a means of identification” needn’t\nrefer exclusively to impersonations. See Michael, 882 F.3d at 627 (rejecting similar argument).\n\n 13\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 14 of 32\n\n\n Statutory context confirms this plain-meaning interpretation of the term\n\n“use[]”—at least as it pertains to a “means of identification.” For starters,\n\n§ 1028A(a)(1) criminalizes the knowing and unauthorized use of a means of\n\nidentification “during and in relation to” certain enumerated felonies—one of\n\nwhich, again, is knowingly making a false statement to an FDIC-insured bank\n\nunder 18 U.S.C. § 1014. As the Sixth Circuit explained in Michael, this “during\n\nand in relation to” language connotes causation: “The salient point,” the court said,\n\n“is whether the defendant used the means of identification to further or facilitate\n\nthe . . . fraud.” 882 F.3d at 628. Just as “[f]orging a doctor’s signature to bolster”\n\ninsurance claims “facilitated the health care fraud” in that case, so too forging\n\nMorris’s name to bolster a loan application facilitated the bank fraud in this one.\n\nId. at 629.\n\n Ranging beyond the term’s immediate surroundings, our reading finds\n\nadditional support in § 1028A(c)’s statutory cross references—the various “uses”\n\nof means of identification that the prohibition covers. Along with § 1014’s “fraud\n\nand false statements” ((c)(4)), § 1028A also reaches, to take only the first five,\n\n“theft or public money, property or rewards” ((c)(1)), “false personation of\n\ncitizenship” ((c)(2)), “false statements in connection with the acquisition of a\n\nfirearm” ((c)(3)), and “mail, bank, and wire fraud” ((c)(5)). While these references\n\nmay not foreclose an impersonation-based “on behalf of” reading, they also don’t\n\n\n 14\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 15 of 32\n\n\npreclude—and on balance, we think they support—an interpretation of “use[]” that\n\nmore broadly forbids one from “employ[ing]” or “convert[ing] to [his] service”\n\nanother’s name.\n\n Lastly, we note that what precedent there is further reinforces our plain-\n\nlanguage reading. Although this Court has not yet opined (in a published opinion)\n\non the meaning of “use[]” in § 1028A,6 we have found the word “use” in other\n\ncriminal statutes to entail employing or converting an object to one’s service. See,\n\ne.g., United States v. Montano, 398 F.3d 1276, 1284–85 (11th Cir. 2005)\n\n(observing that a defendant “use[s] or carrie[s] a firearm” within the meaning of 18\n\nU.S.C. § 924(c)(1)(A) when he “employ[s] the guns, avail[s] himself of the guns,\n\nderive[s] service from the guns, or receive[s] any other benefit from the guns”).\n\nThe Supreme Court and our sister circuits have done the same. See, e.g., United\n\nStates v. Castleman, 572 U.S. 157, 170–71 (2014) (holding that under 18 U.S.C. §\n\n922(g)(9) “the word ‘use’ conveys the idea that the thing used . . . has been made\n\nthe user’s instrument”) (internal quotation marks and citations omitted)); Konop v.\n\nHawaiian Airlines, Inc., 302 F.3d 868, 880 (9th Cir. 2002) (defining “use” in 18\n\nU.S.C. § 2701(c)(2) to mean “to put into action or service, avail oneself of,\n\n\n\n6\n We note, however, that our reading comports with that in United States v. Lewis, 443 Fed.\nApp’x 493, 495–96 (11th Cir. 2011) (“As the signature of an individual’s name specifically\nidentifies that individual, we conclude that forging another’s signature constitutes the use of a\n‘means of identification.’”).\n\n 15\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 16 of 32\n\n\nemploy”); United States v. Ramsey, 237 F.3d 853, 859 (7th Cir. 2001) (interpreting\n\n“use or attempted to use” in U.S.S.G. § 3B1.4 “fairly broadly” in accordance with\n\nthe definition in the Sixth Edition of Black’s—“to avail oneself of; to employ; to\n\nutilize; to carry out a purpose or action by means of; to put into action or service,\n\nespecially to attain an end”).\n\n There is one loose end—well two, really. Aside from his general contention\n\nthat “us[ing] a means of identification” necessarily entails impersonation,\n\nMunksgard offers a pair of more specific reasons why we shouldn’t deem his\n\naction to be a covered “use” of Morris’s name. We find neither compelling. First,\n\nMunksgard asserts that he “signed Morris’s name to the surveying contract but did\n\nnot take anything from Morris nor did he obligate Morris to do anything.” But\n\nharm to the identity’s true owner isn’t an element of § 1028A(a)(1); accordingly,\n\nMunksgard’s argument—even if true—provides him no defense. Second,\n\nMunksgard contends that “the use of Morris’s name was incidental to the offense”\n\nbecause (he says) it didn’t influence Drummond Community Bank’s decision to\n\nprovide financing. But again, Munksgard’s position presupposes an element—\n\nsomething like reliance—that § 1028A(a)(1) doesn’t require.\n\n * * *\n\n In sum, we conclude that the plain meaning of the term “use,” particularly\n\nwhen understood in statutory context and in the light of relevant precedent,\n\n\n 16\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 17 of 32\n\n\ndemonstrates that Munksgard unlawfully “use[d]” Kyle Morris’s name within the\n\nmeaning of § 1028A(a)(1).\n\n IV\n\n For the foregoing reasons, we hold (1) that the jury here could find beyond a\n\nreasonable doubt that Drummond Community Bank was FDIC-insured at the time\n\nof Munksgard’s offenses, as required by 18 U.S.C. § 1014, and (2) that when\n\nMunksgard signed Kyle Morris’s name to the fraudulent surveying contract he\n\nsubmitted in support of his loan application, he “use[d]” Morris’s “means of\n\nidentification” within the meaning of 18 U.S.C. § 1028A(a)(1). Accordingly, we\n\naffirm Munksgard’s convictions and sentences.\n\n AFFIRMED\n\n\n\n\n 17\n\n Case: 16-17654 Date Filed: 01/30/2019 Page: 18 of 32\n[END_CASE]",
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4,585,976 | Marnika Lewis v. Governor of Alabama | 2019-01-30 | 17-11009 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and GRANT, Circuit Judges: BY THE COURT: A petition for rehearing en banc having been", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "Case: 17-11009 Date Filed: 01/30/2019 Page: 1 of 2\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-11009\n ________________________\n\n D.C. Docket No. 2:16-cv-00690-RDP\n\nMARNIKA LEWIS,\nANTOIN ADAMS,\nNATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED\nPEOPLE,\nGREATER BIRMINGHAM MINISTRIES,\nMARIKA COLEMAN,\nJOHN ROGERS,\nPRISCILLA DUNN,\nJUANDALYNN GIVAN,\nLOUISE ALEXANDER,\nWILLIAM MUHAMMAD,\nRODGER SMITHERMAN,\nOLIVER ROBINSON,\nALABAMA LEGISLATIVE BLACK CAUCUS,\nMARY MOORE,\n\n Plaintiffs - Appellants,\n\nversus\n\nGOVERNOR OF ALABAMA,\nin his Official Capacity as Governor of the State of Alabama,\nATTORNEY GENERAL, STATE OF ALABAMA,\nin his Official Capacity as Attorney General of the State of Alabama,\nSTATE OF ALABAMA, THE,\nBIRMINGHAM, CITY OF, THE,\nWILLIAM A. BELL, SR.,\n\n Defendants - Appellees.\n\f Case: 17-11009 Date Filed: 01/30/2019 Page: 2 of 2\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Alabama\n ________________________\n\n\n\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\nBRANCH, and GRANT, Circuit Judges:\n\nBY THE COURT:\n\n A petition for rehearing en banc having been filed, a member of this Court in\n\nactive service having requested a poll on whether this case should be reheard en\n\nbanc, and a majority of the judges of this Court in active service having voted in\n\nfavor of granting rehearing en banc, it is ORDERED that this case will be reheard\n\nen banc. The panel’s opinion is VACATED.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363229/", "author_raw": ""}]} | ED CARNES | TJOFLAT | MARCUS | 2 | WILSON; WILLIAM PRYOR; MARTIN; JORDAN; ROSENBAUM; JILL PRYOR; NEWSOM; BRANCH; GRANT | {"ED CARNES": ", Chief", "TJOFLAT": ", Circuit", "MARCUS": ", Circuit", "WILSON": ", Circuit", "WILLIAM PRYOR": ", Circuit", "MARTIN": ", Circuit", "JORDAN": ", Circuit", "ROSENBAUM": ", Circuit", "JILL PRYOR": ", Circuit", "NEWSOM": ", Circuit", "BRANCH": ", Circuit", "GRANT": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585976/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Marnika Lewis v. Governor of Alabama\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-11009 Date Filed: 01/30/2019 Page: 1 of 2\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-11009\n ________________________\n\n D.C. Docket No. 2:16-cv-00690-RDP\n\nMARNIKA LEWIS,\nANTOIN ADAMS,\nNATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED\nPEOPLE,\nGREATER BIRMINGHAM MINISTRIES,\nMARIKA COLEMAN,\nJOHN ROGERS,\nPRISCILLA DUNN,\nJUANDALYNN GIVAN,\nLOUISE ALEXANDER,\nWILLIAM MUHAMMAD,\nRODGER SMITHERMAN,\nOLIVER ROBINSON,\nALABAMA LEGISLATIVE BLACK CAUCUS,\nMARY MOORE,\n\n Plaintiffs - Appellants,\n\nversus\n\nGOVERNOR OF ALABAMA,\nin his Official Capacity as Governor of the State of Alabama,\nATTORNEY GENERAL, STATE OF ALABAMA,\nin his Official Capacity as Attorney General of the State of Alabama,\nSTATE OF ALABAMA, THE,\nBIRMINGHAM, CITY OF, THE,\nWILLIAM A. BELL, SR.,\n\n Defendants - Appellees.\n\f Case: 17-11009 Date Filed: 01/30/2019 Page: 2 of 2\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Alabama\n ________________________\n\n\n\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\nBRANCH, and GRANT, Circuit Judges:\n\nBY THE COURT:\n\n A petition for rehearing en banc having been filed, a member of this Court in\n\nactive service having requested a poll on whether this case should be reheard en\n\nbanc, and a majority of the judges of this Court in active service having voted in\n\nfavor of granting rehearing en banc, it is ORDERED that this case will be reheard\n\nen banc. The panel’s opinion is VACATED.\n[END_CASE]",
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8,443,869 | Marnika LEWIS, Antoin Adams, National Association for the Advancement of Colored People, Greater Birmingham Ministries, Marika Coleman, John Rogers, Priscilla Dunn, Juandalynn Givan, Louise Alexander, William Muhammad, Rodger Smitherman, Oliver Robinson, Alabama Legislative Black Caucus, Mary Moore v. GOVERNOR OF ALABAMA, in his Official Capacity as Governor of the State of Alabama, Attorney General, State of Alabama, in his Official Capacity as Attorney General of the State of Alabama, State of Alabama, the, Birmingham, City of, the, William A. Bell, Sr. | Lewis v. Governor of Ala. | 2019-01-30 | No. 17-11009 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415297/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443869/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Marnika LEWIS, Antoin Adams, National Association for the Advancement of Colored People, Greater Birmingham Ministries, Marika Coleman, John Rogers, Priscilla Dunn, Juandalynn Givan, Louise Alexander, William Muhammad, Rodger Smitherman, Oliver Robinson, Alabama Legislative Black Caucus, Mary Moore v. GOVERNOR OF ALABAMA, in his Official Capacity as Governor of the State of Alabama, Attorney General, State of Alabama, in his Official Capacity as Attorney General of the State of Alabama, State of Alabama, the, Birmingham, City of, the, William A. Bell, Sr.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,586,448 | Shariff David Bula LOPEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. | Shariff David Bula Lopez v. U.S. Attorney General | 2019-01-31 | 17-15179 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Hull, Rosenbaum", "parties": "", "opinions": [{"author": "HULL, Circuit Judge:", "type": "010combined", "text": "Case: 17-15179 Date Filed: 01/31/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15179\n ________________________\n\n Agency No. A072-836-227\n\n\n\nSHARIFF DAVID BULA LOPEZ,\n\n Petitioner,\n\n versus\n\nU.S. ATTORNEY GENERAL,\n\n Respondent.\n\n ________________________\n\n Petition for Review of a Decision of the\n Board of Immigration Appeals\n ________________________\n\n (January 31, 2019)\n\nBefore ED CARNES, Chief Judge, ROSENBAUM and HULL, Circuit Judges.\n\nHULL, Circuit Judge:\n\n Upon consideration, we grant in part Petitioner Shariff Bula Lopez’s petition\n\nfor panel rehearing. We vacate the prior opinion in this case, issued on November\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 2 of 18\n\n\n21, 2018 and published at 909 F.3d 388 (11th Cir. 2018), and hereby substitute the\n\nfollowing opinion in its place.\n\n Shariff Bula Lopez petitions for review of the Board of Immigration\n\nAppeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of\n\nremoval. After review, and with the benefit of oral argument, we dismiss in part\n\nand deny in part Bula Lopez’s petition.\n\n I. BACKGROUND\n\nA. Immigration Proceedings\n\n In 1989, Bula Lopez, a native and citizen of Colombia, moved to the United\n\nStates, and in 1993 he became a lawful permanent resident (“LPR”) of the United\n\nStates. In 1997, Bula Lopez pled guilty “in his best interest” in Florida state court\n\nto one count of possession with intent to deliver Flunitrazepam1 and was sentenced\n\nto two years’ probation. Upon returning from a trip abroad in April 2010, Bula\n\nLopez applied for admission to the United States as an LPR and was paroled into\n\nthe United States pending removal proceedings based on his prior drug conviction.\n\n In September 2010, the Department of Homeland Security (“DHS”) issued\n\nBula Lopez a Notice to Appear (“NTA”) charging him as removable, in relevant\n\npart: (1) under Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(I), 8\n\n\n\n 1\n Flunitrazepam, also known as Rohypnol, is a sedative commonly used as a date rape\ndrug.\n 2\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 3 of 18\n\n\nU.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral\n\nturpitude (“CIMT”); and (2) under INA § 212(a)(2)(A)(i)(II), 8 U.S.C.\n\n§ 1182(a)(2)(A)(i)(II), for having been convicted of violating a law relating to a\n\ncontrolled substance, as defined in the federal Controlled Substances Act (“CSA”).\n\nBoth charges were based on Bula Lopez’s 1997 Florida conviction for possession\n\nwith intent to deliver Flunitrazepam.\n\n Bula Lopez, through counsel, denied these charges of removability. Before\n\nthe IJ, Bula Lopez argued, among other things, that his 1997 Florida conviction\n\nwas for simple possession of Flunitrazepam, not possession with intent to deliver,\n\nand thus his prior conviction did not constitute a CIMT.\n\nB. IJ’s Order\n\n In a written order, the IJ found that Bula Lopez’s Florida conviction was for\n\npossession with intent to deliver, not simple possession. Florida Statute\n\n§ 893.13(1)(a) criminalizes possession with intent to deliver, whereas Florida\n\nStatute § 893.13(6)(a) criminalizes simple possession.\n\n The IJ noted that DHS bears the burden of proving Bula Lopez’s\n\ninadmissibility by clear and convincing evidence. The IJ acknowledged there was\n\n“some ambiguity” regarding the statutory basis for Bula Lopez’s Flunitrazepam\n\nconviction. The language of the guilty plea form, plea hearing transcript,\n\nsentencing documents, and arrest warrant affidavit all described his offense as\n\n\n 3\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 4 of 18\n\n\npossession with intent to deliver. However, one document—the information—\n\nreferred to § 893.13(6)(a), although it also described the offense as possession with\n\nintent to deliver. The IJ therefore found “that the preponderance of the evidence\n\nsupports the conclusion that [Bula Lopez] was convicted under Fla. Stat.\n\n§ 893.13(1), and not Fla. Stat. § 893.13(6)(a).”\n\n Having determined that Bula Lopez’s prior conviction was for possession\n\nwith intent to deliver Flunitrazepam under § 893.13(1)(a), the IJ then determined\n\nthat his conviction qualified as a CIMT under the INA and sustained that charge of\n\nremovability. The IJ did not, however, sustain Bula Lopez’s second charge of\n\nremovability, for having violated a law relating to a controlled substance, as\n\ndefined in the CSA. The IJ concluded that Bula Lopez’s conviction did not qualify\n\nas a controlled substance violation because Flunitrazepam was not listed in the\n\nCSA schedules found in 21 U.S.C. § 812 and, thus, Bula Lopez’s Flunitrazepam\n\nconviction did not “relate to a controlled substance” within the meaning of the\n\nINA.\n\nC. Appeal to the BIA\n\n Bula Lopez, through counsel, appealed to the BIA. On appeal, Bula Lopez\n\nargued that the IJ applied the wrong standard of proof in determining that his 1997\n\nFlorida conviction was for possession with intent to deliver, rather than mere\n\npossession. Bula Lopez asserted that DHS had the burden to prove his conviction\n\n\n 4\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 5 of 18\n\n\nwas a CIMT by clear and convincing evidence, but the IJ erroneously applied a\n\npreponderance of the evidence standard. Bula Lopez also argued that the IJ erred\n\nin sustaining the CIMT charge because Flunitrazepam was not a federally\n\ncontrolled substance, and his offense, whether under § 893.13(6)(a) or\n\n§ 893.13(1)(a), lacked the requisite “evil intent” mens rea requirement. Bula\n\nLopez also requested a remand to pursue a waiver of inadmissibility under INA\n\n§ 212(h).\n\n In response, DHS moved for summary affirmance of the IJ’s order. DHS\n\nargued that the IJ correctly found Bula Lopez was convicted of possession with\n\nintent to deliver Flunitrazepam and that his conviction constituted a CIMT. In\n\naddition, DHS argued that, contrary to the IJ’s finding, Flunitrazepam is a federally\n\ncontrolled substance under the CSA.\n\n In his reply brief, Bula Lopez contended, among other things, that the BIA\n\ncould not consider the IJ’s finding that Flunitrazepam is not a controlled substance\n\nbecause DHS did not file a cross-appeal.\n\nD. BIA Decision\n\n The BIA dismissed Bula Lopez’s appeal and denied his motion to remand.\n\nFirst, the BIA addressed Bula Lopez’s argument that the IJ applied the wrong\n\nburden of proof. The BIA noted that the IJ identified the correct clear and\n\nconvincing evidence standard in its decision, but also referred to the incorrect\n\n\n 5\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 6 of 18\n\n\npreponderance of the evidence standard in making its finding regarding Bula\n\nLopez’s statute of conviction. The BIA concluded, however, that “this\n\nmisstatement [was] not material” because the record provided clear and convincing\n\nevidence that Bula Lopez was convicted under § 893.13(1)(a) for possession with\n\nintent to deliver Flunitrazepam.\n\n Next, the BIA affirmed the IJ’s determination that Bula Lopez’s conviction\n\nwas a CIMT. In the course of that analysis, the BIA “address[ed] the [IJ’s]\n\nerroneous determination that Flunitrazepam is not a controlled substance under\n\nimmigration law.” The BIA explained that: (1) although Flunitrazepam is “not\n\ndirectly listed at 21 U.S.C. § 812 (listing scheduled substances), this section of the\n\nlaw specifically provides for updating of the schedules by the Attorney General,\n\nunder specified administrative procedures”; (2) “the additions and deletions are\n\nthen to be listed in the Code of Federal Regulations at 21 C.F.R. § 1308”; and\n\n(3) “Flunitrazepam is listed at 21 C.F.R. § 1308.14(c)(23) and is a controlled\n\nsubstance under schedule IV.” Because it concluded that Flunitrazepam is a\n\ncontrolled substance, the BIA found Bula Lopez also was removable for having\n\nviolated a law relating to a controlled substance under INA § 212(a)(2)(A)(i)(II), 8\n\nU.S.C. § 1182(a)(2)(A)(i)(II).\n\n Further, the BIA expressly rejected Bula Lopez’s argument that it could not\n\nconsider the IJ’s finding regarding Flunitrazepam on appeal because DHS had not\n\n\n 6\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 7 of 18\n\n\ncross-appealed. The BIA stated: “No separate appeal is required where, as here,\n\nthe non-appealing party seeks to defend the [IJ’s] decision based on different\n\nreasons.”\n\n The BIA also denied Bula Lopez’s request for a remand to pursue a § 212(h)\n\nwaiver. The BIA concluded that Bula Lopez was ineligible for such relief because\n\nhis Flunitrazepam conviction was a “drug trafficking crime” and, therefore, an\n\naggravated felony under the INA.\n\n Bula Lopez now petitions this Court for review.\n\n II. STANDARD OF REVIEW\n\n When the BIA issues its own decision, we review only that decision, except\n\nto the extent the BIA expressly adopts the IJ’s opinion or reasoning. Seck v. U.S.\n\nAtt’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We review the BIA’s legal\n\nconclusions de novo and its factual determinations under the substantial evidence\n\ntest. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). We apply\n\nthe substantial evidence test even when, as here, DHS was required to prove\n\nremovability by clear and convincing evidence in the administrative proceedings.\n\nAdefemi v. Ashcroft, 386 F.3d 1022, 1028 (11th Cir. 2004) (en banc). Under the\n\nsubstantial evidence test, we will affirm the BIA’s factual findings as long as they\n\nare “supported by reasonable, substantial, and probative evidence on the record\n\nconsidered as a whole.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th\n\n\n 7\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 8 of 18\n\n\nCir. 2015) (internal quotations omitted). We will reverse the BIA’s factual\n\nfindings only if the record compels reversal, and the mere fact that the record may\n\nsupport a contrary conclusion is insufficient to justify reversal of the BIA’s\n\nfindings. Id.\n\n Bula Lopez argues that the BIA erred: (1) in concluding his prior conviction\n\nwas for possession with intent to deliver Flunitrazepam because the records of his\n\nconviction are ambiguous; (2) in considering DHS’s argument on appeal that,\n\ncontrary to the IJ’s determination, Bula Lopez was removable for having\n\ncommitted a controlled substance violation because DHS did not file a cross-\n\nappeal; and (3) in concluding that Flunitrazepam is a controlled substance for\n\npurposes of the INA, such that his conviction qualifies as a CIMT, controlled\n\nsubstance violation, and aggravated felony. We address each issue in turn.\n\n III. STATUTE OF CONVICTION\n\n As a preliminary matter, we must address whether we have jurisdiction to\n\nreview the BIA’s factual determination that Bula Lopez was convicted of\n\npossession with intent to deliver under Fla. Stat. § 893.13(1)(a), rather than simple\n\npossession under Fla. Stat. § 893.13(6)(a). Section 242 of the INA limits our\n\njurisdiction to review final orders of removal against criminal aliens who have\n\nbeen found removable for having committed a controlled substance violation. See\n\nINA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (“[N]o court shall have jurisdiction\n\n\n 8\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 9 of 18\n\n\nto review any final order of removal against an alien who is removable by reason\n\nof having committed a criminal offense covered in section 1182(a)(2) . . . of this\n\ntitle . . . .”); INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled\n\nsubstance violation). In such cases, our jurisdiction is limited to constitutional\n\nclaims and questions of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)\n\n(“Nothing in subparagraph . . . (C) . . . shall be construed as precluding review of\n\nconstitutional claims or questions of law raised upon a petition for review filed\n\nwith an appropriate court of appeals in accordance with this section.”).\n\n However, even in cases involving criminal aliens, we “have jurisdiction to\n\ndetermine underlying facts that establish our jurisdiction or lack of it.” Garces v.\n\nU.S. Att’y Gen., 611 F.3d 1337, 1343 (11th Cir. 2010). In Garces, for example, we\n\nhad to answer the underlying factual question of whether the alien “in fact\n\n‘committed a criminal offense.’” Id. Only by answering that question could we\n\ndetermine whether the alien was removable for having committed a covered\n\ncriminal offense and, therefore, whether INA § 242’s jurisdictional limitations\n\napplied. See id. Thus, “the jurisdictional question merge[d] into our consideration\n\nof the merits.” Id.; see also Adefemi v. Ashcroft, 358 F.3d 828, 833 (11th Cir.\n\n2004) (“Our jurisdictional inquiry thus merges with the merits of Adefemi’s\n\nchallenge, which rests on his assertion that the INS failed to prove a qualifying\n\nfirearms conviction by sufficient evidence. We therefore proceed to the merits on\n\n\n 9\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 10 of 18\n\n\nthe understanding that we have jurisdiction to grant relief if the government failed\n\nto prove that Adefemi was convicted of a firearms offense.”), vacated in part on\n\nreh’g en banc, Adefemi, 386 F.3d at 1024 & n.2 (reaffirming the panel’s\n\njurisdictional ruling).\n\n Here, we must answer an underlying factual question—whether Bula Lopez\n\nwas convicted of possession with intent to deliver Flunitrazepam or merely simple\n\npossession of Flunitrazepam—to determine whether he is removable because of\n\nthat criminal conviction and, therefore, whether INA § 242’s jurisdictional\n\nlimitations apply. Thus, as in Garces and Adefemi, our jurisdictional inquiry\n\nmerges with the merits of Bula Lopez’s challenge, which rests in part on his\n\nassertion that DHS failed to prove his statute of conviction by sufficient evidence.\n\nSee Garces, 611 F.3d at 1343; Adefemi, 358 F.3d at 833.\n\n We have no trouble concluding, on this record, that substantial evidence\n\nsupports the BIA’s finding that Bula Lopez was convicted under § 893.13(1)(a)\n\n(possession with intent to deliver), and not § 893.13(6)(a) (simple possession).\n\nThough the information does cite § 893.13(6)(a), it twice refers to Bula Lopez’s\n\noffense as “possession with intent to deliver flunitrazepam.” And aside from this\n\none citation, no other document in the record indicates that Bula Lopez’s\n\nconviction was for simple possession. Indeed, Bula Lopez’s signed guilty plea\n\nform likewise refers to the charge as “possession with intent to deliver\n\n\n 10\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 11 of 18\n\n\nflunitrazepam,” as does the plea hearing transcript. Three state court sentencing\n\ndocuments and the arrest warrant affidavit also refer to Bula Lopez’s offense as,\n\nrespectively, (1) “poss w/ intent to deliver/sell flunitrazepam,” (2) “poss with intent\n\nto del.,” (3) “poss/sell/deliv flunitrazepam,” and (4) “poss w/ intent to deliver—\n\nflunitrazepam.” In short, reasonable, substantial evidence supports a finding that\n\nBula Lopez was convicted of possession with intent to deliver under\n\n§ 893.13(1)(a), and the single reference in the information to § 893.13(6)(a) does\n\nnot compel reversal. 2 See Indrawati, 779 F.3d at 1297.\n\n Having concluded that substantial evidence supports the BIA’s factual\n\nfinding regarding Bula Lopez’s statute of conviction, we lack jurisdiction under\n\nINA § 242 to grant Bula Lopez relief on this claim. See INA § 242(a)(2)(C), (D),\n\n8 U.S.C. § 1252(a)(2)(C), (D); Adefemi, 358 F.3d at 833 (indicating that we have\n\njurisdiction to grant relief in a case such as this only if the government failed to\n\nprove the alien’s conviction by sufficient evidence). We therefore dismiss Bula\n\nLopez’s petition for review in part for lack of jurisdiction as to this claim.\n\n Bula Lopez’s remaining two claims, however, present legal questions over\n\nwhich we have jurisdiction even under INA § 242. INA § 242(a)(2)(D), 8 U.S.C.\n\n\n\n\n 2\n To the extent Bula Lopez argued at oral argument that his petition must be granted\nbecause the IJ applied the wrong burden of proof in resolving this factual question, we note that\nthe BIA applied the correct, clear and convincing evidence standard, and it is the BIA’s decision\nthat we are reviewing. Seck, 663 F.3d at 1364.\n 11\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 12 of 18\n\n\n§ 1252(a)(2)(D). We next address Bula Lopez’s argument concerning DHS’s\n\nfailure to file a cross-appeal before the BIA and then proceed to the merits of his\n\nclaim that the BIA erred in concluding Flunitrazepam is a controlled substance.\n\n IV. FAILURE TO CROSS-APPEAL\n\n The BIA found that Bula Lopez’s conviction was both a controlled\n\nsubstance violation and a CIMT. Because the IJ found Bula Lopez removable only\n\non the CIMT ground, Bula Lopez argues the BIA could not reach the controlled\n\nsubstance violation ground without a cross-appeal by DHS. DHS responds that the\n\nBIA did not err in considering this alternative basis for Bula Lopez’s removability.\n\n The BIA’s regulations do not contain any specific rules regarding the filing\n\nof cross-appeals. See, e.g., 8 C.F.R. §§ 1003.38 (providing rules for appeals),\n\n1003.3 (providing requirements for a notice of appeal). In the absence of such\n\nrules or BIA precedent on the issue, we look to the general cross-appeal rule\n\napplied in federal courts to determine whether the BIA erred by considering DHS’s\n\nargument on appeal that Flunitrazepam is a controlled substance and that Bula\n\nLopez was removable for having committed a controlled substance violation.\n\n The Supreme Court has explained that “[a]n appellee who does not take a\n\ncross-appeal may urge in support of a decree any matter appearing before the\n\nrecord, although his argument may involve an attack upon the reasoning of the\n\nlower court.” See Jennings v. Stephens, 574 U.S. __, __, 135 S. Ct. 793, 798\n\n\n 12\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 13 of 18\n\n\n(2015) (internal quotations omitted). In other words, the appellee may argue for\n\naffirmance on any ground supported by the record, even one the lower court did\n\nnot rely on. See id. However, “an appellee who does not cross-appeal may not\n\nattack the decree with a view either to enlarging his own rights thereunder or of\n\nlessening the rights of his adversary.” Id. (internal quotations omitted).\n\n To determine whether the cross-appeal rule applies, we must distinguish\n\nbetween the rights of a party and the reasons a court gives for recognizing those\n\nrights. Because “[c]ourts reduce their opinions and verdicts to judgments precisely\n\nto define the rights and liabilities of the parties,” it is the judgment of the court, not\n\nits opinion, that matters. Id. at 799. In Jennings, for instance, the district court\n\ngranted habeas relief to the petitioner on two of his ineffective-assistance-of-\n\ncounsel theories, but denied relief as to a third theory and entered judgment\n\ndirecting the state either to release him from custody or resentence him. Id. at 798.\n\nThe state appealed, attacking only the two ineffective-assistance theories on which\n\nthe district court had granted relief. Id. Without filing a cross-appeal, the\n\npetitioner defended the district court’s judgment on all three ineffective-assistance\n\ntheories. Id. The Fifth Circuit determined it lacked jurisdiction to consider the\n\nthird ineffective-assistance theory, on which the district court had not relied in\n\ngranting relief, because Jennings did not file a cross-appeal. Id. The Supreme\n\nCourt granted certiorari and reversed. Id. at 798-802.\n\n\n 13\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 14 of 18\n\n\n In concluding that Jennings could raise his third ineffective-assistance theory\n\non appeal without filing a cross appeal, the Supreme Court explained:\n\n Jennings’ rights under the judgment [granting habeas relief on the first\n two theories] were what the judgment provided—release, resentencing,\n or commutation within a fixed time, at the State’s option; the [third]\n theory would give him the same. Similarly, the State’s rights under the\n judgment were to retain Jennings in custody pending resentencing or to\n commute his sentence; the [third] theory would allow no less.\n\nId. at 798-99.\n\n The Court further explained that “[a] prevailing party seeks to enforce not a\n\ndistrict court’s reasoning, but the court’s judgment,” and that federal appellate\n\ncourts “do[] not review lower courts’ opinions, but their judgments.” Id. at 799\n\n(emphasis in original). Accordingly, “[a]ny potential claim that would have\n\nentitled Jennings” to the same relief as that provided in the district court’s\n\njudgment “could have been advanced to urge . . . support of the judgment,” as long\n\nas that alternative ground was present in the record. Id. at 800 (internal quotations\n\nomitted). And because Jennings’s third ineffective-assistance theory “sought the\n\nsame relief” as was awarded under his first two ineffective-assistance theories, he\n\nwas not required to file a cross-appeal in order to raise it. Id. at 801-02.\n\n Here, DHS’s controlled substance argument on appeal to the BIA is akin to\n\nthe alternative argument raised in Jennings. Like the habeas petitioner in Jennings,\n\nDHS here prevailed on one theory of removability (CIMT), but not on another\n\n(controlled substance violation) and, on appeal, defended the IJ’s order of\n 14\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 15 of 18\n\n\nremovability on both theories. See id. at 798. In arguing to the BIA that Bula\n\nLopez was also removable for having committed a controlled substance violation,\n\nDHS “sought the same relief”—Bula Lopez’s removal—as was awarded in the IJ’s\n\nremoval order based on the CIMT charge. Id. at 801-02. Thus, DHS was not\n\nrequired to file a cross-appeal to advance its controlled substance argument on\n\nappeal to the BIA, and the BIA did not err in considering that argument.\n\n V. CONTROLLED SUBSTANCE VIOLATION\n\n The INA provides that an LPR (such as Bula Lopez) is considered an\n\n“applicant for admission,” and therefore subject to removal, if he “has committed\n\nan offense identified in section 1182(a)(2) of this title.” INA § 101(a)(13)(C)(v), 8\n\nU.S.C. § 1101(a)(13)(C)(v). One of the offenses identified in § 1182(a)(2) is “a\n\nviolation of . . . any law or regulation of a State, the United States, or a foreign\n\ncountry relating to a controlled substance (as defined in section 802 of Title 21).”\n\nINA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). Section 802, in turn,\n\ndefines the term “controlled substance” as “a drug or other substance, or immediate\n\nprecursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21\n\nU.S.C. § 802(6).\n\n Those five schedules of controlled substances are listed at 21 U.S.C. § 812,\n\nwhich also instructs that the list of controlled substances shall be updated annually,\n\npursuant to the procedures set out in 21 U.S.C. § 811. See 21 U.S.C. § 812(a), (c);\n\n\n 15\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 16 of 18\n\n\nid. § 811(a)(1) (providing that “the Attorney General may by rule add to such a\n\nschedule . . . any drug or other substance if he finds that such drug or other\n\nsubstance has a potential for abuse”). Section 812 of the CSA further specifies that\n\nthe “[r]evised schedules are published in the Code of Federal Regulations, Part\n\n1308 of Title 21, Food and Drugs.” Id. § 812(c) n.1; see also 21 C.F.R. § 1308.01\n\n(“Schedules of controlled substances as established by section 202 of the [CSA]\n\n(21 U.S.C. 812) . . . as they are changed, updated, and republished from time to\n\ntime, are set forth in this part.”). In other words, the definition of “controlled\n\nsubstance” in 21 U.S.C. § 802 incorporates the revised schedules as published in\n\n21 C.F.R. § 1308.\n\n Bula Lopez contends that because Flunitrazepam is not listed in the initial\n\nschedules of controlled substances contained in § 812 of the CSA, it is not a\n\ncontrolled substance for purposes of the INA. See 21 U.S.C. § 812(c).\n\nFlunitrazepam is, however, listed as a Schedule IV controlled substance in the\n\nupdated schedules found in the Code of Federal Regulations. 21 C.F.R.\n\n§ 1308.14(c)(23). Flunitrazepam therefore has been incorporated into § 802 of the\n\nCSA and is a controlled substance within the meaning of INA\n\n§ 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).3 Therefore, the BIA did not\n\n\n 3\n Indeed, Flunitrazepam has been on Schedule IV since late 1984, well before Bula-\nLopez’s conviction. See Drug Enforcement Administration, Schedules of Controlled\nSubstances, 49 Fed. Reg. 39307-01 (Oct. 5, 1984).\n\n 16\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 17 of 18\n\n\nerr in concluding that Flunitrazepam is a controlled substance and that Bula\n\nLopez’s conviction for possessing Flunitrazepam with intent to deliver is a\n\n“violation of . . . [a] law or regulation of a State . . . relating to a controlled\n\nsubstance (as defined in section 802 of Title 21).” 4 INA § 212(a)(2)(A)(i)(II), 8\n\nU.S.C. § 1182(a)(2)(A)(i)(II). As such, Bula Lopez was properly considered an\n\n“applicant for admission” subject to removal based on his prior conviction. See\n\nINA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v). Because the BIA correctly\n\ndetermined that Bula Lopez was removable for having been convicted of a\n\ncontrolled substance violation, we may deny his petition for review on that basis\n\nalone and need not address whether his prior conviction is also a CIMT.\n\n One further issue bears mention. Bula Lopez also argues, based on his\n\ncontention that Flunitrazepam is not a controlled substance, that his Florida\n\nconviction is not an aggravated felony and does not render him ineligible to pursue\n\na waiver of inadmissibility under INA § 212(h). He therefore requests that we\n\nremand this case to allow him to pursue a § 212(h) waiver. DHS responds that\n\nFlunitrazepam is a controlled substance, and the BIA correctly denied Bula\n\n\n\n 4\n Bula Lopez argues that the BIA cannot rely on Flunitrazepam’s listing in the C.F.R.\nbecause that list is compiled by the Drug Enforcement Agency (“DEA”), not Congress, and\nCongress is the only body with the authority to make and amend laws. Unfortunately for Bula\nLopez, that is an argument he needs to take up with the Supreme Court. See Touby v. United\nStates, 500 U.S. 160, 169, 111 S. Ct. 1752, 1758 (1991) (holding that delegation from Congress\nto the Attorney General, and from the Attorney General to the DEA, neither violated the\nConstitution nor the Controlled Substances Act).\n 17\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 18 of 18\n\n\nLopez’s request for a remand to pursue a § 212(h) waiver because he is ineligible\n\nfor such relief. Having found that Flunitrazepam is a controlled substance, we\n\nagree that the BIA did not err in denying Bula Lopez’s motion for a remand to\n\npursue a § 212(h) waiver, and we must deny his present request for a remand to\n\nseek such relief. This is because INA § 212(a)(2)(A)(i)(II) provides that an alien\n\nconvicted of a violation of any federal or state law or regulation “relating to a\n\ncontrolled substance (as defined in section 802 of Title 21), is inadmissible.” See\n\nINA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). And while § 212(h)\n\nallows the Attorney General to waive the application of that subsection if the\n\ncontrolled substance violation “related to a single offense of simple possession of\n\n30 grams or less of marijuana,” Bula Lopez’s controlled substance violation\n\ninvolved Flunitrazepam, not marijuana. INA § 212(h), 8 U.S.C. § 1182(h).\n\n VI. CONCLUSION\n\n For the foregoing reasons, we dismiss in part and deny in part Bula Lopez’s\n\npetition for review.\n\n PETITION DISMISSED in part and DENIED in part.\n\n\n\n\n 18", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363701/", "author_raw": "HULL, Circuit Judge:"}]} | CARNES | HULL | ROSENBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586448/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Shariff David Bula LOPEZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-15179 Date Filed: 01/31/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15179\n ________________________\n\n Agency No. A072-836-227\n\n\n\nSHARIFF DAVID BULA LOPEZ,\n\n Petitioner,\n\n versus\n\nU.S. ATTORNEY GENERAL,\n\n Respondent.\n\n ________________________\n\n Petition for Review of a Decision of the\n Board of Immigration Appeals\n ________________________\n\n (January 31, 2019)\n\nBefore ED CARNES, Chief Judge, ROSENBAUM and HULL, Circuit Judges.\n\nHULL, Circuit Judge:\n\n Upon consideration, we grant in part Petitioner Shariff Bula Lopez’s petition\n\nfor panel rehearing. We vacate the prior opinion in this case, issued on November\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 2 of 18\n\n\n21, 2018 and published at 909 F.3d 388 (11th Cir. 2018), and hereby substitute the\n\nfollowing opinion in its place.\n\n Shariff Bula Lopez petitions for review of the Board of Immigration\n\nAppeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) order of\n\nremoval. After review, and with the benefit of oral argument, we dismiss in part\n\nand deny in part Bula Lopez’s petition.\n\n I. BACKGROUND\n\nA. Immigration Proceedings\n\n In 1989, Bula Lopez, a native and citizen of Colombia, moved to the United\n\nStates, and in 1993 he became a lawful permanent resident (“LPR”) of the United\n\nStates. In 1997, Bula Lopez pled guilty “in his best interest” in Florida state court\n\nto one count of possession with intent to deliver Flunitrazepam1 and was sentenced\n\nto two years’ probation. Upon returning from a trip abroad in April 2010, Bula\n\nLopez applied for admission to the United States as an LPR and was paroled into\n\nthe United States pending removal proceedings based on his prior drug conviction.\n\n In September 2010, the Department of Homeland Security (“DHS”) issued\n\nBula Lopez a Notice to Appear (“NTA”) charging him as removable, in relevant\n\npart: (1) under Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(I), 8\n\n\n\n 1\n Flunitrazepam, also known as Rohypnol, is a sedative commonly used as a date rape\ndrug.\n 2\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 3 of 18\n\n\nU.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral\n\nturpitude (“CIMT”); and (2) under INA § 212(a)(2)(A)(i)(II), 8 U.S.C.\n\n§ 1182(a)(2)(A)(i)(II), for having been convicted of violating a law relating to a\n\ncontrolled substance, as defined in the federal Controlled Substances Act (“CSA”).\n\nBoth charges were based on Bula Lopez’s 1997 Florida conviction for possession\n\nwith intent to deliver Flunitrazepam.\n\n Bula Lopez, through counsel, denied these charges of removability. Before\n\nthe IJ, Bula Lopez argued, among other things, that his 1997 Florida conviction\n\nwas for simple possession of Flunitrazepam, not possession with intent to deliver,\n\nand thus his prior conviction did not constitute a CIMT.\n\nB. IJ’s Order\n\n In a written order, the IJ found that Bula Lopez’s Florida conviction was for\n\npossession with intent to deliver, not simple possession. Florida Statute\n\n§ 893.13(1)(a) criminalizes possession with intent to deliver, whereas Florida\n\nStatute § 893.13(6)(a) criminalizes simple possession.\n\n The IJ noted that DHS bears the burden of proving Bula Lopez’s\n\ninadmissibility by clear and convincing evidence. The IJ acknowledged there was\n\n“some ambiguity” regarding the statutory basis for Bula Lopez’s Flunitrazepam\n\nconviction. The language of the guilty plea form, plea hearing transcript,\n\nsentencing documents, and arrest warrant affidavit all described his offense as\n\n\n 3\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 4 of 18\n\n\npossession with intent to deliver. However, one document—the information—\n\nreferred to § 893.13(6)(a), although it also described the offense as possession with\n\nintent to deliver. The IJ therefore found “that the preponderance of the evidence\n\nsupports the conclusion that [Bula Lopez] was convicted under Fla. Stat.\n\n§ 893.13(1), and not Fla. Stat. § 893.13(6)(a).”\n\n Having determined that Bula Lopez’s prior conviction was for possession\n\nwith intent to deliver Flunitrazepam under § 893.13(1)(a), the IJ then determined\n\nthat his conviction qualified as a CIMT under the INA and sustained that charge of\n\nremovability. The IJ did not, however, sustain Bula Lopez’s second charge of\n\nremovability, for having violated a law relating to a controlled substance, as\n\ndefined in the CSA. The IJ concluded that Bula Lopez’s conviction did not qualify\n\nas a controlled substance violation because Flunitrazepam was not listed in the\n\nCSA schedules found in 21 U.S.C. § 812 and, thus, Bula Lopez’s Flunitrazepam\n\nconviction did not “relate to a controlled substance” within the meaning of the\n\nINA.\n\nC. Appeal to the BIA\n\n Bula Lopez, through counsel, appealed to the BIA. On appeal, Bula Lopez\n\nargued that the IJ applied the wrong standard of proof in determining that his 1997\n\nFlorida conviction was for possession with intent to deliver, rather than mere\n\npossession. Bula Lopez asserted that DHS had the burden to prove his conviction\n\n\n 4\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 5 of 18\n\n\nwas a CIMT by clear and convincing evidence, but the IJ erroneously applied a\n\npreponderance of the evidence standard. Bula Lopez also argued that the IJ erred\n\nin sustaining the CIMT charge because Flunitrazepam was not a federally\n\ncontrolled substance, and his offense, whether under § 893.13(6)(a) or\n\n§ 893.13(1)(a), lacked the requisite “evil intent” mens rea requirement. Bula\n\nLopez also requested a remand to pursue a waiver of inadmissibility under INA\n\n§ 212(h).\n\n In response, DHS moved for summary affirmance of the IJ’s order. DHS\n\nargued that the IJ correctly found Bula Lopez was convicted of possession with\n\nintent to deliver Flunitrazepam and that his conviction constituted a CIMT. In\n\naddition, DHS argued that, contrary to the IJ’s finding, Flunitrazepam is a federally\n\ncontrolled substance under the CSA.\n\n In his reply brief, Bula Lopez contended, among other things, that the BIA\n\ncould not consider the IJ’s finding that Flunitrazepam is not a controlled substance\n\nbecause DHS did not file a cross-appeal.\n\nD. BIA Decision\n\n The BIA dismissed Bula Lopez’s appeal and denied his motion to remand.\n\nFirst, the BIA addressed Bula Lopez’s argument that the IJ applied the wrong\n\nburden of proof. The BIA noted that the IJ identified the correct clear and\n\nconvincing evidence standard in its decision, but also referred to the incorrect\n\n\n 5\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 6 of 18\n\n\npreponderance of the evidence standard in making its finding regarding Bula\n\nLopez’s statute of conviction. The BIA concluded, however, that “this\n\nmisstatement [was] not material” because the record provided clear and convincing\n\nevidence that Bula Lopez was convicted under § 893.13(1)(a) for possession with\n\nintent to deliver Flunitrazepam.\n\n Next, the BIA affirmed the IJ’s determination that Bula Lopez’s conviction\n\nwas a CIMT. In the course of that analysis, the BIA “address[ed] the [IJ’s]\n\nerroneous determination that Flunitrazepam is not a controlled substance under\n\nimmigration law.” The BIA explained that: (1) although Flunitrazepam is “not\n\ndirectly listed at 21 U.S.C. § 812 (listing scheduled substances), this section of the\n\nlaw specifically provides for updating of the schedules by the Attorney General,\n\nunder specified administrative procedures”; (2) “the additions and deletions are\n\nthen to be listed in the Code of Federal Regulations at 21 C.F.R. § 1308”; and\n\n(3) “Flunitrazepam is listed at 21 C.F.R. § 1308.14(c)(23) and is a controlled\n\nsubstance under schedule IV.” Because it concluded that Flunitrazepam is a\n\ncontrolled substance, the BIA found Bula Lopez also was removable for having\n\nviolated a law relating to a controlled substance under INA § 212(a)(2)(A)(i)(II), 8\n\nU.S.C. § 1182(a)(2)(A)(i)(II).\n\n Further, the BIA expressly rejected Bula Lopez’s argument that it could not\n\nconsider the IJ’s finding regarding Flunitrazepam on appeal because DHS had not\n\n\n 6\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 7 of 18\n\n\ncross-appealed. The BIA stated: “No separate appeal is required where, as here,\n\nthe non-appealing party seeks to defend the [IJ’s] decision based on different\n\nreasons.”\n\n The BIA also denied Bula Lopez’s request for a remand to pursue a § 212(h)\n\nwaiver. The BIA concluded that Bula Lopez was ineligible for such relief because\n\nhis Flunitrazepam conviction was a “drug trafficking crime” and, therefore, an\n\naggravated felony under the INA.\n\n Bula Lopez now petitions this Court for review.\n\n II. STANDARD OF REVIEW\n\n When the BIA issues its own decision, we review only that decision, except\n\nto the extent the BIA expressly adopts the IJ’s opinion or reasoning. Seck v. U.S.\n\nAtt’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). We review the BIA’s legal\n\nconclusions de novo and its factual determinations under the substantial evidence\n\ntest. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). We apply\n\nthe substantial evidence test even when, as here, DHS was required to prove\n\nremovability by clear and convincing evidence in the administrative proceedings.\n\nAdefemi v. Ashcroft, 386 F.3d 1022, 1028 (11th Cir. 2004) (en banc). Under the\n\nsubstantial evidence test, we will affirm the BIA’s factual findings as long as they\n\nare “supported by reasonable, substantial, and probative evidence on the record\n\nconsidered as a whole.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th\n\n\n 7\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 8 of 18\n\n\nCir. 2015) (internal quotations omitted). We will reverse the BIA’s factual\n\nfindings only if the record compels reversal, and the mere fact that the record may\n\nsupport a contrary conclusion is insufficient to justify reversal of the BIA’s\n\nfindings. Id.\n\n Bula Lopez argues that the BIA erred: (1) in concluding his prior conviction\n\nwas for possession with intent to deliver Flunitrazepam because the records of his\n\nconviction are ambiguous; (2) in considering DHS’s argument on appeal that,\n\ncontrary to the IJ’s determination, Bula Lopez was removable for having\n\ncommitted a controlled substance violation because DHS did not file a cross-\n\nappeal; and (3) in concluding that Flunitrazepam is a controlled substance for\n\npurposes of the INA, such that his conviction qualifies as a CIMT, controlled\n\nsubstance violation, and aggravated felony. We address each issue in turn.\n\n III. STATUTE OF CONVICTION\n\n As a preliminary matter, we must address whether we have jurisdiction to\n\nreview the BIA’s factual determination that Bula Lopez was convicted of\n\npossession with intent to deliver under Fla. Stat. § 893.13(1)(a), rather than simple\n\npossession under Fla. Stat. § 893.13(6)(a). Section 242 of the INA limits our\n\njurisdiction to review final orders of removal against criminal aliens who have\n\nbeen found removable for having committed a controlled substance violation. See\n\nINA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (“[N]o court shall have jurisdiction\n\n\n 8\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 9 of 18\n\n\nto review any final order of removal against an alien who is removable by reason\n\nof having committed a criminal offense covered in section 1182(a)(2) . . . of this\n\ntitle . . . .”); INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled\n\nsubstance violation). In such cases, our jurisdiction is limited to constitutional\n\nclaims and questions of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)\n\n(“Nothing in subparagraph . . . (C) . . . shall be construed as precluding review of\n\nconstitutional claims or questions of law raised upon a petition for review filed\n\nwith an appropriate court of appeals in accordance with this section.”).\n\n However, even in cases involving criminal aliens, we “have jurisdiction to\n\ndetermine underlying facts that establish our jurisdiction or lack of it.” Garces v.\n\nU.S. Att’y Gen., 611 F.3d 1337, 1343 (11th Cir. 2010). In Garces, for example, we\n\nhad to answer the underlying factual question of whether the alien “in fact\n\n‘committed a criminal offense.’” Id. Only by answering that question could we\n\ndetermine whether the alien was removable for having committed a covered\n\ncriminal offense and, therefore, whether INA § 242’s jurisdictional limitations\n\napplied. See id. Thus, “the jurisdictional question merge[d] into our consideration\n\nof the merits.” Id.; see also Adefemi v. Ashcroft, 358 F.3d 828, 833 (11th Cir.\n\n2004) (“Our jurisdictional inquiry thus merges with the merits of Adefemi’s\n\nchallenge, which rests on his assertion that the INS failed to prove a qualifying\n\nfirearms conviction by sufficient evidence. We therefore proceed to the merits on\n\n\n 9\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 10 of 18\n\n\nthe understanding that we have jurisdiction to grant relief if the government failed\n\nto prove that Adefemi was convicted of a firearms offense.”), vacated in part on\n\nreh’g en banc, Adefemi, 386 F.3d at 1024 & n.2 (reaffirming the panel’s\n\njurisdictional ruling).\n\n Here, we must answer an underlying factual question—whether Bula Lopez\n\nwas convicted of possession with intent to deliver Flunitrazepam or merely simple\n\npossession of Flunitrazepam—to determine whether he is removable because of\n\nthat criminal conviction and, therefore, whether INA § 242’s jurisdictional\n\nlimitations apply. Thus, as in Garces and Adefemi, our jurisdictional inquiry\n\nmerges with the merits of Bula Lopez’s challenge, which rests in part on his\n\nassertion that DHS failed to prove his statute of conviction by sufficient evidence.\n\nSee Garces, 611 F.3d at 1343; Adefemi, 358 F.3d at 833.\n\n We have no trouble concluding, on this record, that substantial evidence\n\nsupports the BIA’s finding that Bula Lopez was convicted under § 893.13(1)(a)\n\n(possession with intent to deliver), and not § 893.13(6)(a) (simple possession).\n\nThough the information does cite § 893.13(6)(a), it twice refers to Bula Lopez’s\n\noffense as “possession with intent to deliver flunitrazepam.” And aside from this\n\none citation, no other document in the record indicates that Bula Lopez’s\n\nconviction was for simple possession. Indeed, Bula Lopez’s signed guilty plea\n\nform likewise refers to the charge as “possession with intent to deliver\n\n\n 10\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 11 of 18\n\n\nflunitrazepam,” as does the plea hearing transcript. Three state court sentencing\n\ndocuments and the arrest warrant affidavit also refer to Bula Lopez’s offense as,\n\nrespectively, (1) “poss w/ intent to deliver/sell flunitrazepam,” (2) “poss with intent\n\nto del.,” (3) “poss/sell/deliv flunitrazepam,” and (4) “poss w/ intent to deliver—\n\nflunitrazepam.” In short, reasonable, substantial evidence supports a finding that\n\nBula Lopez was convicted of possession with intent to deliver under\n\n§ 893.13(1)(a), and the single reference in the information to § 893.13(6)(a) does\n\nnot compel reversal. 2 See Indrawati, 779 F.3d at 1297.\n\n Having concluded that substantial evidence supports the BIA’s factual\n\nfinding regarding Bula Lopez’s statute of conviction, we lack jurisdiction under\n\nINA § 242 to grant Bula Lopez relief on this claim. See INA § 242(a)(2)(C), (D),\n\n8 U.S.C. § 1252(a)(2)(C), (D); Adefemi, 358 F.3d at 833 (indicating that we have\n\njurisdiction to grant relief in a case such as this only if the government failed to\n\nprove the alien’s conviction by sufficient evidence). We therefore dismiss Bula\n\nLopez’s petition for review in part for lack of jurisdiction as to this claim.\n\n Bula Lopez’s remaining two claims, however, present legal questions over\n\nwhich we have jurisdiction even under INA § 242. INA § 242(a)(2)(D), 8 U.S.C.\n\n\n\n\n 2\n To the extent Bula Lopez argued at oral argument that his petition must be granted\nbecause the IJ applied the wrong burden of proof in resolving this factual question, we note that\nthe BIA applied the correct, clear and convincing evidence standard, and it is the BIA’s decision\nthat we are reviewing. Seck, 663 F.3d at 1364.\n 11\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 12 of 18\n\n\n§ 1252(a)(2)(D). We next address Bula Lopez’s argument concerning DHS’s\n\nfailure to file a cross-appeal before the BIA and then proceed to the merits of his\n\nclaim that the BIA erred in concluding Flunitrazepam is a controlled substance.\n\n IV. FAILURE TO CROSS-APPEAL\n\n The BIA found that Bula Lopez’s conviction was both a controlled\n\nsubstance violation and a CIMT. Because the IJ found Bula Lopez removable only\n\non the CIMT ground, Bula Lopez argues the BIA could not reach the controlled\n\nsubstance violation ground without a cross-appeal by DHS. DHS responds that the\n\nBIA did not err in considering this alternative basis for Bula Lopez’s removability.\n\n The BIA’s regulations do not contain any specific rules regarding the filing\n\nof cross-appeals. See, e.g., 8 C.F.R. §§ 1003.38 (providing rules for appeals),\n\n1003.3 (providing requirements for a notice of appeal). In the absence of such\n\nrules or BIA precedent on the issue, we look to the general cross-appeal rule\n\napplied in federal courts to determine whether the BIA erred by considering DHS’s\n\nargument on appeal that Flunitrazepam is a controlled substance and that Bula\n\nLopez was removable for having committed a controlled substance violation.\n\n The Supreme Court has explained that “[a]n appellee who does not take a\n\ncross-appeal may urge in support of a decree any matter appearing before the\n\nrecord, although his argument may involve an attack upon the reasoning of the\n\nlower court.” See Jennings v. Stephens, 574 U.S. __, __, 135 S. Ct. 793, 798\n\n\n 12\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 13 of 18\n\n\n(2015) (internal quotations omitted). In other words, the appellee may argue for\n\naffirmance on any ground supported by the record, even one the lower court did\n\nnot rely on. See id. However, “an appellee who does not cross-appeal may not\n\nattack the decree with a view either to enlarging his own rights thereunder or of\n\nlessening the rights of his adversary.” Id. (internal quotations omitted).\n\n To determine whether the cross-appeal rule applies, we must distinguish\n\nbetween the rights of a party and the reasons a court gives for recognizing those\n\nrights. Because “[c]ourts reduce their opinions and verdicts to judgments precisely\n\nto define the rights and liabilities of the parties,” it is the judgment of the court, not\n\nits opinion, that matters. Id. at 799. In Jennings, for instance, the district court\n\ngranted habeas relief to the petitioner on two of his ineffective-assistance-of-\n\ncounsel theories, but denied relief as to a third theory and entered judgment\n\ndirecting the state either to release him from custody or resentence him. Id. at 798.\n\nThe state appealed, attacking only the two ineffective-assistance theories on which\n\nthe district court had granted relief. Id. Without filing a cross-appeal, the\n\npetitioner defended the district court’s judgment on all three ineffective-assistance\n\ntheories. Id. The Fifth Circuit determined it lacked jurisdiction to consider the\n\nthird ineffective-assistance theory, on which the district court had not relied in\n\ngranting relief, because Jennings did not file a cross-appeal. Id. The Supreme\n\nCourt granted certiorari and reversed. Id. at 798-802.\n\n\n 13\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 14 of 18\n\n\n In concluding that Jennings could raise his third ineffective-assistance theory\n\non appeal without filing a cross appeal, the Supreme Court explained:\n\n Jennings’ rights under the judgment [granting habeas relief on the first\n two theories] were what the judgment provided—release, resentencing,\n or commutation within a fixed time, at the State’s option; the [third]\n theory would give him the same. Similarly, the State’s rights under the\n judgment were to retain Jennings in custody pending resentencing or to\n commute his sentence; the [third] theory would allow no less.\n\nId. at 798-99.\n\n The Court further explained that “[a] prevailing party seeks to enforce not a\n\ndistrict court’s reasoning, but the court’s judgment,” and that federal appellate\n\ncourts “do[] not review lower courts’ opinions, but their judgments.” Id. at 799\n\n(emphasis in original). Accordingly, “[a]ny potential claim that would have\n\nentitled Jennings” to the same relief as that provided in the district court’s\n\njudgment “could have been advanced to urge . . . support of the judgment,” as long\n\nas that alternative ground was present in the record. Id. at 800 (internal quotations\n\nomitted). And because Jennings’s third ineffective-assistance theory “sought the\n\nsame relief” as was awarded under his first two ineffective-assistance theories, he\n\nwas not required to file a cross-appeal in order to raise it. Id. at 801-02.\n\n Here, DHS’s controlled substance argument on appeal to the BIA is akin to\n\nthe alternative argument raised in Jennings. Like the habeas petitioner in Jennings,\n\nDHS here prevailed on one theory of removability (CIMT), but not on another\n\n(controlled substance violation) and, on appeal, defended the IJ’s order of\n 14\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 15 of 18\n\n\nremovability on both theories. See id. at 798. In arguing to the BIA that Bula\n\nLopez was also removable for having committed a controlled substance violation,\n\nDHS “sought the same relief”—Bula Lopez’s removal—as was awarded in the IJ’s\n\nremoval order based on the CIMT charge. Id. at 801-02. Thus, DHS was not\n\nrequired to file a cross-appeal to advance its controlled substance argument on\n\nappeal to the BIA, and the BIA did not err in considering that argument.\n\n V. CONTROLLED SUBSTANCE VIOLATION\n\n The INA provides that an LPR (such as Bula Lopez) is considered an\n\n“applicant for admission,” and therefore subject to removal, if he “has committed\n\nan offense identified in section 1182(a)(2) of this title.” INA § 101(a)(13)(C)(v), 8\n\nU.S.C. § 1101(a)(13)(C)(v). One of the offenses identified in § 1182(a)(2) is “a\n\nviolation of . . . any law or regulation of a State, the United States, or a foreign\n\ncountry relating to a controlled substance (as defined in section 802 of Title 21).”\n\nINA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). Section 802, in turn,\n\ndefines the term “controlled substance” as “a drug or other substance, or immediate\n\nprecursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21\n\nU.S.C. § 802(6).\n\n Those five schedules of controlled substances are listed at 21 U.S.C. § 812,\n\nwhich also instructs that the list of controlled substances shall be updated annually,\n\npursuant to the procedures set out in 21 U.S.C. § 811. See 21 U.S.C. § 812(a), (c);\n\n\n 15\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 16 of 18\n\n\nid. § 811(a)(1) (providing that “the Attorney General may by rule add to such a\n\nschedule . . . any drug or other substance if he finds that such drug or other\n\nsubstance has a potential for abuse”). Section 812 of the CSA further specifies that\n\nthe “[r]evised schedules are published in the Code of Federal Regulations, Part\n\n1308 of Title 21, Food and Drugs.” Id. § 812(c) n.1; see also 21 C.F.R. § 1308.01\n\n(“Schedules of controlled substances as established by section 202 of the [CSA]\n\n(21 U.S.C. 812) . . . as they are changed, updated, and republished from time to\n\ntime, are set forth in this part.”). In other words, the definition of “controlled\n\nsubstance” in 21 U.S.C. § 802 incorporates the revised schedules as published in\n\n21 C.F.R. § 1308.\n\n Bula Lopez contends that because Flunitrazepam is not listed in the initial\n\nschedules of controlled substances contained in § 812 of the CSA, it is not a\n\ncontrolled substance for purposes of the INA. See 21 U.S.C. § 812(c).\n\nFlunitrazepam is, however, listed as a Schedule IV controlled substance in the\n\nupdated schedules found in the Code of Federal Regulations. 21 C.F.R.\n\n§ 1308.14(c)(23). Flunitrazepam therefore has been incorporated into § 802 of the\n\nCSA and is a controlled substance within the meaning of INA\n\n§ 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II).3 Therefore, the BIA did not\n\n\n 3\n Indeed, Flunitrazepam has been on Schedule IV since late 1984, well before Bula-\nLopez’s conviction. See Drug Enforcement Administration, Schedules of Controlled\nSubstances, 49 Fed. Reg. 39307-01 (Oct. 5, 1984).\n\n 16\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 17 of 18\n\n\nerr in concluding that Flunitrazepam is a controlled substance and that Bula\n\nLopez’s conviction for possessing Flunitrazepam with intent to deliver is a\n\n“violation of . . . [a] law or regulation of a State . . . relating to a controlled\n\nsubstance (as defined in section 802 of Title 21).” 4 INA § 212(a)(2)(A)(i)(II), 8\n\nU.S.C. § 1182(a)(2)(A)(i)(II). As such, Bula Lopez was properly considered an\n\n“applicant for admission” subject to removal based on his prior conviction. See\n\nINA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v). Because the BIA correctly\n\ndetermined that Bula Lopez was removable for having been convicted of a\n\ncontrolled substance violation, we may deny his petition for review on that basis\n\nalone and need not address whether his prior conviction is also a CIMT.\n\n One further issue bears mention. Bula Lopez also argues, based on his\n\ncontention that Flunitrazepam is not a controlled substance, that his Florida\n\nconviction is not an aggravated felony and does not render him ineligible to pursue\n\na waiver of inadmissibility under INA § 212(h). He therefore requests that we\n\nremand this case to allow him to pursue a § 212(h) waiver. DHS responds that\n\nFlunitrazepam is a controlled substance, and the BIA correctly denied Bula\n\n\n\n 4\n Bula Lopez argues that the BIA cannot rely on Flunitrazepam’s listing in the C.F.R.\nbecause that list is compiled by the Drug Enforcement Agency (“DEA”), not Congress, and\nCongress is the only body with the authority to make and amend laws. Unfortunately for Bula\nLopez, that is an argument he needs to take up with the Supreme Court. See Touby v. United\nStates, 500 U.S. 160, 169, 111 S. Ct. 1752, 1758 (1991) (holding that delegation from Congress\nto the Attorney General, and from the Attorney General to the DEA, neither violated the\nConstitution nor the Controlled Substances Act).\n 17\n\f Case: 17-15179 Date Filed: 01/31/2019 Page: 18 of 18\n\n\nLopez’s request for a remand to pursue a § 212(h) waiver because he is ineligible\n\nfor such relief. Having found that Flunitrazepam is a controlled substance, we\n\nagree that the BIA did not err in denying Bula Lopez’s motion for a remand to\n\npursue a § 212(h) waiver, and we must deny his present request for a remand to\n\nseek such relief. This is because INA § 212(a)(2)(A)(i)(II) provides that an alien\n\nconvicted of a violation of any federal or state law or regulation “relating to a\n\ncontrolled substance (as defined in section 802 of Title 21), is inadmissible.” See\n\nINA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II). And while § 212(h)\n\nallows the Attorney General to waive the application of that subsection if the\n\ncontrolled substance violation “related to a single offense of simple possession of\n\n30 grams or less of marijuana,” Bula Lopez’s controlled substance violation\n\ninvolved Flunitrazepam, not marijuana. INA § 212(h), 8 U.S.C. § 1182(h).\n\n VI. CONCLUSION\n\n For the foregoing reasons, we dismiss in part and deny in part Bula Lopez’s\n\npetition for review.\n\n PETITION DISMISSED in part and DENIED in part.\n\n\n\n\n 18\n[END_CASE]",
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7,335,317 | Jane DOE v. KIPP DC SUPPORTING CORP. | Jane Doe v. Kipp DC Supporting Corp. | 2019-01-03 | Civil Action No.: 18-260 (RC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Contreras", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253237/", "author_raw": ""}]} | CONTRERAS | CONTRERAS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335317/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Jane DOE v. KIPP DC SUPPORTING CORP.\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,578,870 | UNITED STATES of America, Appellee v. Francisco Carbajal FLORES, Also Known as Dalmata, Appellant | United States v. Francisco Flores | 2019-01-04 | 17-3090 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Wilkins, Katsas, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge WILKINS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 17, 2018 Decided January 4, 2019\n\n No. 17-3090\n\n UNITED STATES OF AMERICA,\n APPELLEE\n\n v.\n\n FRANCISCO CARBAJAL FLORES, ALSO KNOWN AS DALMATA,\n APPELLANT\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:11-cr-00143-1)\n\n\n Richard K. Gilbert, appointed by the court, argued the\ncause and filed the briefs for appellant. Kristen G. Hughes,\nappointed by the court, entered an appearance.\n\n Peter S. Smith, Assistant U.S. Attorney, argued the cause\nfor appellee. With him on the brief were Jessie K. Liu, U.S.\nAttorney, and Elizabeth Trosman and John P. Mannarino,\nAssistant U.S. Attorneys.\n\n Before: WILKINS and KATSAS, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Circuit Judge WILKINS.\n\f 2\n WILKINS, Circuit Judge. Appellant Francisco Carbajal-\nFlores pleaded guilty to one count of conspiracy to conduct the\naffairs of an enterprise through a pattern of racketeering\nactivity (“RICO conspiracy”), in violation of 18 U.S.C.\n§ 1962(d); one count of accessory after the fact for the murder\nof an officer or employee of the United States, in violation of\n18 U.S.C. §§ 3, 1111, and 1114; and one count of accessory\nafter the fact to the attempted murder of an officer or employee\nof the United States, in violation of 18 U.S.C. §§ 3, 1113, and\n1114. He appeals his sentence, arguing that the District Court\nerred when it considered his murder of a Mexican national in\nMexico when calculating his sentence under the Sentencing\nGuidelines. We agree with Flores, and we vacate and remand\nto the District Court for resentencing.\n\n I.\n\n The following facts are taken from the Stipulated\nStatement of Facts attached to Flores’s Plea Agreement. Flores\ndoes not dispute the facts on appeal.\n\n Flores was a member of the Los Zetas Cartel (“the Cartel”)\n– a violent and sophisticated criminal organization spanning\nfrom Central America to the United States. The Cartel was\nresponsible for transporting multi-ton quantities of cocaine and\nmarijuana, on a monthly basis, from Mexico to the United\nStates. The Cartel’s hit squads patrolled Cartel-controlled\nterritory primarily by vehicle, providing protection for the\nCartel’s illegal activity, including protection of its lucrative\ndrug trafficking routes from Mexico to the United States,\nidentification and elimination of rival cartel members,\nkidnappings, carjackings, human smuggling, and assassinations.\n\n In January 2011, while assigned to a hit squad located in\nSan Luis Potosí, Mexico, Flores and others kidnapped a person\n\f 3\nthat they believed to be a rival cartel member. During the\nkidnapping, Mexican authorities confronted Flores’s hit squad,\nand a chase and gun battle ensued. Flores’s hit squad\neventually escaped. During the escape, Flores was ordered to\nexecute the kidnapping victim, and Flores did so by shooting\nhim.\n\n On February 15, 2011, ICE Special Agents Jaime Zapata\n(“SA Zapata”) and Victor Avila (“SA Avila”) were returning\nto Mexico City after meeting with U.S. personnel in Matehuala,\nMexico. As the two ICE agents drove south on Mexican\nHighway 57, outside of San Luis Potosí, they encountered two\nvehicles, each occupied by an armed Cartel hit squad. The two\nhit squads forced the ICE agents off the road and attempted to\nsteal their armored car. The hit men subsequently fired nearly\n100 rounds at the Special Agents, with several rounds entering\nthe armored car through an open window. SA Zapata was\nkilled and SA Avila was seriously wounded. The hit squads\nfled.\n\n Flores was not present during the February 15, 2011,\nattack on the ICE agents. The next day, Flores attempted to\nrejoin his hit squad but was told not to return. Members of the\nhit squad told Flores what had happened during the attack, and\nthey made several inculpatory statements about their\nparticipation in that attack.\n\n Law enforcement personnel from Mexico and the United\nStates worked together to identify the perpetrators. On\nFebruary 23, 2011, Mexican authorities arrested members of\nthe hit squad, including Flores, who was serving as the hit\nsquad’s lookout at the time of the arrest. Authorities recovered\nvarious firearms the hit squad had stored, and ballistics testing\nlinked those weapons to the attack on the ICE agents.\n\f 4\n On May 28, 2011, Flores voluntarily surrendered to the\nU.S. government. In connection with the February 15, 2011,\nattack on the two ICE agents, Flores was charged by\nInformation with RICO conspiracy (Count One); accessory\nafter the fact for the murder of an officer or employee of the\nUnited States (Count Two); and accessory after the fact to the\nattempted murder of an officer or employee of the United\nStates (Count Three).\n\n In January 2012, Flores pleaded guilty to all charges in the\nInformation. Pursuant to the Plea Agreement, the parties\nagreed to a Sentencing Guidelines calculation, which Flores\nnow argues was legally incorrect. To calculate a Guidelines\nsentence, a district court must first select the applicable offense\nguideline and then select the base offense level within that\napplicable offense guideline. See U.S.S.G. §§ 1B1.1(a)(1)-(2),\n1B1.2(a). Here, under Count One, the parties agreed that\n\n [t]he underlying racketeering activity conducted\n by members of the criminal enterprise in this case\n involved murder; distribution or importation of a\n controlled substance; conspiracy to do the same;\n and accessory after the fact to commit the murder\n or the attempted murder of an officer or\n employee of the United States.\n\nJ.A. 39. The parties agreed to U.S.S.G. § 2E1.1 as the\napplicable offense guideline, and they agreed that the base\noffense level for Count One would be 43 under U.S.S.G.\n§ 2E1.1(a)(2), because the base offense level for murder is 43\nunder U.S.S.G. § 2A1.1(a).\n\n The Plea Agreement calculated the base offense level for\nCount Two as 30 under U.S.S.G. §§ 2A1.1 and 2X3.1(a)(3)(A),\nand it calculated the base offense level for Count Three as 27\n\f 5\nunder U.S.S.G. §§ 2A2.1 and 2X3.1. Under U.S.S.G.\n§ 3D1.2(c), the parties agreed to treat the counts as closely\nrelated because Count One embodied the conduct alleged in\nCounts Two and Three. Therefore, the applicable offense level\nto the group became that of the most serious of the counts\nwithin the group, resulting in an overall offense level of 43.\n\n Pursuant to the Plea Agreement, if Flores demonstrated an\nacceptance of responsibility to the satisfaction of the\ngovernment, the government would agree to a two-level\nreduction with respect to Count Two under U.S.S.G. § 3E1.1(a)\nand a one-level reduction under U.S.S.G. § 3E1.1(b). With a\nCriminal History Category of I and a base offense level of 40,\nthe parties agreed that the applicable Guidelines range would\nbe 292 to 365 months of incarceration. The parties also agreed\nthat the District Court would make any final Guidelines\ndeterminations and that the agreed-upon calculation in the Plea\nAgreement was not binding on the Court.\n\n The presentence report (“PSR”) arrived at the same\nGuidelines calculation as the Plea Agreement but calculated it\ndifferently by grouping the counts pursuant to U.S.S.G.\n§ 3D1.2(b) and determining the combined offense level\npursuant to U.S.S.G. § 3D1.4. The PSR identified four\nseparate overt acts of the RICO conspiracy described in Count\nOne: the murder of SA Zapata (Overt Act One); the attempted\nmurder of SA Avila (Overt Act Two); the murder of the kidnap\nvictim in January 2011 (Overt Act Three); and\ndistribution/importation of five kilograms or more of a mixture\nand substance containing a detectable amount of cocaine and\n1,000 kg or more of a mixture and substance containing a\ndetectable amount of marijuana (Overt Act Four).\n\n Flores objected to the PSR’s analysis with respect to Overt\nAct Three on the ground that the murder of the Mexican kidnap\n\f 6\nvictim was not “racketeering activity” because it was not a\nviolation of U.S. law. The government also filed some\nobjections and comments to the PSR, but it did not object to\nthe PSR treating the murder of the kidnap victim as a separate\nracketeering activity. The government did, however, urge the\nPSR writer to treat the murder of SA Zapata as reasonably\nforeseeable conduct.\n\n The Probation Office did not change its calculation with\nrespect to the murder of the kidnap victim. It responded that\n\n [Flores] would be held accountable for any\n activities that were reasonably foreseeable in\n connection with the criminal activity that\n occurred during the commission of the offense of\n conviction, in preparation for that offense, or in\n the course of attempting to avoid detection or\n responsibility for that offense, USSG\n § 1B1.3(a)(1)(B). The murder of the kidnap\n victim in January of 2011, was also in\n furtherance of the Zeta’s lucrative drug\n trafficking operation and was included in the\n RICO offense to which he pled. However,\n should the Court determine the defendant’s\n position is correct the total offense level would\n be 27 (base offense level 30, reduced by three\n levels for acceptance of responsibility) and his\n advisory guideline range would be 70 to 87\n months.\n\nJ.A. 118.\n\n Before sentencing, both parties filed sentencing\nmemoranda. The government urged the District Court to adopt\nthe analysis of the PSR and moved for a downward departure\n\f 7\nof seven levels in light of Flores’s substantial assistance to the\ngovernment. This seven-level departure was based, in part, on\nFlores’s testimony against his coconspirators, and it resulted in\na guideline range of 135 to 168 months. Flores’s sentencing\nmemorandum repeated his argument that the murder of the\nMexican kidnap victim could not be racketeering activity under\n18 U.S.C. § 1961.\n\n At the sentencing hearing, Flores’s counsel repeated his\nargument about the Mexican kidnap victim and the government\nrepeated its argument that the murder of SA Zapata and “the\nother murders were all certainly foreseeable.” J.A. 158-61.\nThe District Court did not specifically address Flores’s\nargument and adopted the PSR as written. The District Court\nsentenced Flores to a total of twelve years of incarceration, to\nbe followed by three years of supervised release. The District\nCourt entered judgment in November 2017. Flores timely filed\na notice of appeal.\n\n II.\n\n In reviewing the reasonableness of a sentence, we proceed\nin two steps. United States v. Warren, 700 F.3d 528, 531 (D.C.\nCir. 2012). First, we look to whether the District Court\ncommitted significant procedural error in determining the\nGuidelines range. Id. Procedural errors include “failing to\ncalculate (or improperly calculating) the Guidelines range . . .\nor failing to adequately explain the chosen sentence.” Gall v.\nUnited States, 552 U.S. 38, 51 (2007). We review purely legal\nquestions de novo, review factual findings for clear error, and\ngive due deference to the District Court’s application of the\nGuidelines to the facts. United States v. Jones, 744 F.3d 1362,\n1366 (D.C. Cir. 2014). Second, we consider holistically\nwhether the sentence was objectively reasonable given the\nsentencing factors outlined in 18 U.S.C. § 3553(a). Warren,\n\f 8\n700 F.3d at 531. If a procedural objection was timely made\nbefore the District Court, we review it for abuse of discretion.\nIn re Sealed Case, 809 F.3d 672, 675 (D.C. Cir. 2016). If not,\nwe review the claim for plain error. Id.\n\n A.\n\n The government relies on several civil cases to argue that\nbecause Flores expressly adopted the Guidelines calculation in\nhis Plea Agreement, he is judicially estopped from challenging\nthat calculation on appeal. Importantly, however, the\ngovernment conceded at oral argument that no court has ever\nheld that a defendant is estopped on appeal from making an\nargument of law with respect to his or her plea agreement. See\nOral Arg. Recording 48:32-49:05. We find no reason to break\nnew ground by adopting the government’s judicial estoppel\nargument here.\n\n Even setting aside the questionable applicability of the\njudicial estoppel doctrine to plea agreements, the government’s\njudicial estoppel argument fails on the merits. “[J]udicial\nestoppel is used to preclude a party from taking a position that\nis inconsistent with one successfully asserted by the same party\nin a prior proceeding.” United Mine Workers of Am. 1974\nPension v. Pittston Co., 984 F.2d 469, 477 (D.C. Cir. 1993).\nWhile “the circumstances under which judicial estoppel may\nappropriately be invoked are probably not reducible to any\ngeneral formulation of principle,” New Hampshire v. Maine,\n532 U.S. 742, 750 (2001) (internal quotation marks, alterations,\nand citation omitted), the Supreme Court has specified at least\nthree questions that should inform a court’s decision to apply\njudicial estoppel:\n\n (1) Is a party’s later position clearly inconsistent\n with its earlier position? (2) Has the party succeeded\n\f 9\n in persuading a court to accept that party’s earlier\n position, so that judicial acceptance of an\n inconsistent position in a later proceeding would\n create the perception that either the first or the\n second court was misled? (3) Will the party seeking\n to assert an inconsistent position derive an unfair\n advantage or impose an unfair detriment on the\n opposing party if not estopped?\n\nMoses v. Howard Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir.\n2010) (citing Maine, 532 U.S. at 750-51).\n\n Here, Flores initially agreed to a Guidelines calculation of\n40 in his Plea Agreement but later challenged this calculation\nin his objections to the PSR, again in his sentencing\nmemorandum, and again at the sentencing hearing. He does\nnot dispute that he committed the murder of the kidnap victim\nas detailed in the Information and the Stipulated Statement of\nFacts; instead, he objects to the District Court’s use of the\nkidnap victim’s murder in arriving at his Guidelines\ncalculation, which is a legal question. Stipulations about legal\nissues in plea agreements are not binding on the district court.\n“While parties may enter into stipulations of fact that are\nbinding upon them unless they can show manifest injustice,\nparties may not stipulate to the legal conclusions to be reached\nby the court.” Weston v. Wash. Metro. Area Transit Auth., 78\nF.3d 682, 685 (D.C. Cir. 1996) (internal quotation marks and\ncitations omitted).\n\n Furthermore, the Plea Agreement specified that “the\nfailure of the Court or the Probation Office to determine the\nguideline range in accordance with the above calculations will\nnot void this Plea Agreement,” and “the sentence to be imposed\nis a matter solely within the discretion of the Court.” J.A. 40.\nIn light of these express statements, the government fails to\n\f 10\nestablish how Flores succeeded in persuading the District Court\nto accept the Plea Agreement’s Guidelines calculation. What\nFlores received when he entered into the Plea Agreement was\na reservation by the District Court to determine the appropriate\nsentence at sentencing – not a favorable judicial decision. We\nrefuse to accept the government’s argument that a defendant\nprevails in obtaining a favorable judicial decision when a\ndistrict court accepts a plea agreement subject to determining\nhis or her sentence at sentencing. Accordingly, judicial\nestoppel does not apply.\n\n B.\n\n Flores argues that the PSR and the District Court were\nincorrect in considering his murder of the Mexican kidnap\nvictim as a “racketeering activity” in calculating his sentence.\nThe government argues that in calculating Flores’s offense\nlevel, the District Court properly included Flores’s 2011\nmurder of the kidnap victim as “relevant conduct” under\nU.S.S.G. § 1B1.3, and that by its plain language, the relevant\nconduct provision includes extraterritorial conduct. Flores\nargues that the government raises its relevant conduct argument\nfor the first time on appeal.\n\n Before diving into the merits of Flores’s argument, we\nmust address whether the District Court properly calculated\nFlores’s base offense level. The District Court did not explain\nthe basis of Flores’s sentence. Rather, after listening to the\nparties’ arguments on the role the murder of the kidnap victim\nshould play at sentencing, the district court stated that it would\n“adopt the [presentence] report as written.” J.A. 161. The Plea\n\f 11\nAgreement 1 and PSR do not mention “relevant conduct” under\nU.S.S.G. § 1B1.3. The only mention of “relevant conduct”\nappears in the PSR’s Addendum, in response to Flores’s\nobjection to the use of the kidnap victim murder in the\ncalculation of his base offense level. In response to Flores’s\nobjection, the Probation Office stated that “[a]s part of the\njointly undertaken criminal activity in furtherance of the\nracketeering conspiracy, the murder of SA Zapata by the\ncoconspirators is relevant conduct and an act in furtherance of\nthe RICO conspiracy” for which Flores “would be held\naccountable . . . [under] USSG § 1B1.3(a)(1)(B).” J.A. 118.\nAfter discussing why the murder of SA Zapata is “relevant\nconduct” under § 1B1.3(a)(1)(B), the Probation Office stated –\nwithout citation – that “[t]he murder of the kidnap victim in\nJanuary of 2011, was also in furtherance of the Zeta’s lucrative\ndrug trafficking operation and was included in the RICO\noffense to which [defendant] pled.” J.A. 118.\n\n The problem with the Probation Office’s response is that\nin discussing relevant conduct, it relied on § 1B1.3(a)(1)(B) –\nthe subsection that concerns “act and omissions of others” in a\njointly undertaken criminal activity, also known as the\naccomplice attribution element of relevant conduct. U.S.S.G.\n§ 1B1.3(a)(1)(B) (emphasis added). The subsection that would\naddress Flores’s murder of the kidnap victim is\n§ 1B1.3(a)(1)(A), 2 which concerns the “acts and omissions\n\n1\n The Plea Agreement makes only one reference to U.S.S.G. § 1B1.3.\nSpecifically, it cites to § 1B1.3 and § 2A1.1 for the proposition that\nthe base offense level for Count One is 43.\n2\n U.S.S.G. § 1B1.3(a)(1)(A) states:\n\n Unless otherwise specified, (i) the base offense level\n where the guideline specifies more than one base\n offense level, (ii) specific offense characteristics and\n (iii) cross references in Chapter Two, and\n\f 12\ncommitted . . . by the defendant.” Id. § 1B1.3(a)(1)(A) (emphasis\nadded).\n\n The record and the government’s briefing lack a single\ncitation to § 1B1.3(a)(1)(A). Similarly, the PSR and its\nAddendum never assert that the murder of the Mexican kidnap\nvictim was included as “relevant conduct.” Indeed, in the\nPSR’s Addendum, the Probation Office conceded that “should\nthe Court determine the defendant’s position is correct” with\nrespect to the murder of the Mexican kidnap victim, “the total\noffense level would be 27 . . . and his advisory guideline range\nwould be 70 to 87 months” rather than 292 to 365 months. J.A.\n118. By virtue of adopting the PSR as written, the District\nCourt appears to have conflated the relevant conduct\nsubsections and calculated Flores’s base offense level of 43\nbased on § 1B1.3(a)(1)(B). The government did not defend\nthis basis at oral argument and instead contended that we\nshould affirm based on the understanding that the District\nCourt relied on § 1B1.3(a)(1)(A). See Oral Arg. Recording\n28:43-29:12. However, time and again, the Supreme Court\nhas stated that “[a] district court that ‘improperly calculat[es]’\na defendant’s Guidelines range . . . has committed a ‘significant\nprocedural error.’” Molina-Martinez v. United States, 136 S.\nCt. 1338, 1345-46 (2016) (quoting Gall v. United States, 552\nU.S. 38, 51 (2007)). We cannot say as a matter of law that the\nDistrict Court relied on § 1B1.3(a)(1)(A) in calculating\nFlores’s base offense level or that it would have relied on this\nprovision if it had the opportunity to do so. We therefore\ncannot affirm in light of such uncertainty.\n\n (iv) adjustments in Chapter Three, shall be\n determined on the basis of . . . all acts and omissions\n committed, aided, abetted, counseled, commanded,\n induced, procured, or willfully caused by the\n defendant.\n\f 13\n\n C.\n\n Even if the District Court had intended to consider Flores’s\nmurder of the Mexican kidnap victim as relevant conduct under\nU.S.S.G. § 1B1.3(a)(1)(A), it would not have been able to do\nso. The PSR based its Guidelines calculation on the\nassumption that the kidnap victim murder was “underlying\nracketeering activity” under U.S.S.G. § 2E1.1. However, at\noral argument, the government conceded that the murder of the\nMexican kidnap victim in Mexico was not “racketeering\nactivity.” See Oral Arg. Recording 23:16-23:20. We agree\nwith the government’s concession and must reverse the District\nCourt because the relevant conduct Guidelines cannot be used\nto calculate the base offense level of an act that does not qualify\nas “racketeering activity.” To explain our holding – and\nbecause “[t]he Guidelines are complex,” Molina-Martinez, 136\nS. Ct. at 1342 – we explain the sequence of steps a district court\nmust follow in calculating a defendant’s sentence under the\nGuidelines.\n\n To arrive at a Guidelines sentence, a district court must\nfirst determine the offense guideline section from Chapter Two\napplicable to the offense of conviction, and it must do so by referring\nto the Statutory Index. U.S.S.G. §§ 1B1.1(a)(1), 1B1.2(a). At the\nsecond step, the district court must “[d]etermine the base\noffense level and apply any appropriate specific offense\ncharacteristics, cross references, and special instructions\ncontained in the particular guideline in Chapter Two in the\norder listed.” Id. § 1B1.1(a)(2).\n\n Here, the applicable Guidelines section for Flores’s\noffense of conviction – 18 U.S.C. § 1962(d) – is U.S.S.G.\n§ 2E1.1 (Unlawful Conduct Relating to Racketeer Influenced\nand Corrupt Organizations). U.S.S.G. § 2E1.1 instructs the\n\f 14\nDistrict Court to determine the defendant’s base offense level\nby applying the greater of 19 or “the offense level applicable to\nthe underlying racketeering activity.” U.S.S.G. § 2E1.1(a).\nThis reference to “the offense level applicable to the underlying\nracketeering activity” in § 2E1.1(a)(2) is a cross-reference that\ntriggers § 1B1.3, which in turn directs the district court to\nconsider relevant conduct in determining a defendant’s base\noffense level. See United States v. Carrozza, 4 F.3d 70, 75 (1st\nCir. 1993); United States v. Masters, 978 F.2d 281, 284 (7th\nCir. 1992); see also U.S.S.G. § 1B1.5, application note 1\n(“References to other offense guidelines . . . may be to a\nspecific guideline, or may be more general (e.g., to the\nguideline for the ‘underlying offense’).”).\n\n While “[c]onduct that is not formally charged or is not an\nelement of the offense of conviction may enter into the\ndetermination of the applicable guideline sentencing range,”\nU.S.S.G. § 1B1.3, Background; in RICO cases, the relevant\nconduct that can be considered must also qualify as\n“racketeering activity,” id. § 2E1.1(a)(2). Contrary to the\ngovernment’s argument that a district court can consider acts\nthat do not qualify as “racketeering activity” so long as such\nactivity is within the scope of the RICO conspiracy, § 2E1.1\nlacks a textual hook to go beyond “racketeering activity.”\n\n The government fails to cite a single case supporting its\nproposition, and its argument contradicts the plain text of the\nRICO statute and the RICO Guidelines provision, both of\nwhich use the term of art “racketeering activity.” See Klehr v.\nA.O. Smith Corp., 521 U.S. 179, 183 (1997) (“The phrase\n‘racketeering activity’ is a term of art defined in terms of\nactivity that violates other laws.”). As the Supreme Court\nrecently explained:\n\f 15\n The [RICO] statute defines “racketeering activity”\n to encompass dozens of state and federal offenses,\n known in RICO parlance as predicates. These\n predicates include any act “indictable” under\n specified federal statutes, §§ 1961(1)(B)-(C), (E)-\n (G), as well as certain crimes “chargeable” under\n state law, § 1961(1)(A), and any offense involving\n bankruptcy or securities fraud or drug-related\n activity that is “punishable” under federal law,\n § 1961(1)(D).\n\nRJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090,\n2097 (2016). Importantly, to qualify as “racketeering activity,”\nan act must be “indictable,” “chargeable,” or “punishable”\nunder one of the statutes identified in § 1961(1). Id. at 2102.\nHere, the government conceded that Flores’s murder of a\nMexican national in Mexico was not “racketeering activity,”\nand we agree because it would not be indictable under any of\nthe statutes listed in § 1961(1). Accordingly, even if the\nDistrict Court concluded that the Mexican kidnap murder\nconstituted relevant conduct under § 1B1.3, it could not use\nthat murder to calculate Flores’s base offense level because\n§ 2E1.1(a)(2) circumscribes relevant conduct to “underlying\nracketeering activity.”\n\n The prevailing case law supports our view. In United\nStates v. Carrozza, 4 F.3d 70 (1st Cir. 1993), defendant\nRaymond J. Patriarca pleaded guilty to one count of conspiring\nto violate RICO, one count of violating RICO, four counts of\ninterstate travel in aid of racketeering, and one count of\nconspiring to violate the Travel Act. Id. at 72. The government\nsought to include specific acts of relevant conduct under\nU.S.S.G. § 1B1.3 in determining Patriarca’s base offense level,\nbut the district court limited relevant conduct to only those\npredicate acts that were charged against the defendant. Id. at\n\f 16\n73-74. The government appealed, and the First Circuit\nconcluded that the district court erred when it limited relevant\nconduct to conduct in furtherance of the predicate acts charged\nagainst the defendant. The First Circuit held that “the term\n‘underlying racketeering activity’ in § 2E1.1(a)(2) means\nsimply any act, whether or not charged against defendant\npersonally, that qualifies as a RICO predicate act under 18\nU.S.C. § 1961(1) and is otherwise relevant conduct under\n§ 1B1.3.” Id. at 77.\n\n Contrary to the government’s current position, the\ngovernment in Carrozza argued before the First Circuit that\n\n [a]n uncharged act might have been committed in\n furtherance of the RICO conspiracy, but if that act\n does not constitute “underlying racketeering\n activity,” then there is no mechanism in § 2E1.1 for\n quantifying that act, because the base offense level\n for § 2E1.1 is equal to “the offense level applicable\n to the underlying racketeering activity.”\n\nBrief of Appellant United States of America at 18, United\nStates v. Carrozza, 4 F.3d 70 (1st Cir. 1993) (No. 92-2213),\n1992 WL 12574203. And in its brief in opposition to certiorari\nin the same case, the Solicitor General conceded that\n“underlying racketeering activity” must be interpreted to mean\ncharged or uncharged conduct that would qualify as a predicate\nact under 18 U.S.C. § 1961(1). Brief for the United States in\nOpposition, Patriarca v. United States, 511 U.S. 1069 (1994)\n(No. 93-1350), 1994 WL 16100403 at *9.\n\n Similarly, in cases involving the relevant-conduct analysis\nin the § 2E1.1 context, several other of our sister circuits have\nconsidered as relevant conduct only acts that also qualified as\nunderlying RICO predicate acts. See, e.g., United States v.\n\f 17\nBarragan, 871 F.3d 689, 715-16 (9th Cir. 2017); United States\nv. Massino, 546 F.3d 123, 135 (2d Cir. 2008); United States v.\nCorrado, 304 F.3d 593, 608 (6th Cir. 2002). We are not aware\nof any contrary holdings in the courts of appeal. We therefore\ndecline the government’s invitation to use § 1B1.3 to extend\nthe § 2E1.1 analysis beyond racketeering activity.\n\n ***\n\n For these reasons, we conclude that the District Court\nerred in calculating Flores’s applicable Guidelines range and\nthat this error sufficiently prejudices Flores to require\nresentencing. See United States v. Tann, 532 F.3d 868, 875-76\n(D.C. Cir. 2008).\n\n So ordered.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356123/", "author_raw": "Opinion for the Court filed by Circuit Judge WILKINS"}]} | WILKINS | KATSAS | SENTELLE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4578870/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee v. Francisco Carbajal FLORES, Also Known as Dalmata, Appellant\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 17, 2018 Decided January 4, 2019\n\n No. 17-3090\n\n UNITED STATES OF AMERICA,\n APPELLEE\n\n v.\n\n FRANCISCO CARBAJAL FLORES, ALSO KNOWN AS DALMATA,\n APPELLANT\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:11-cr-00143-1)\n\n\n Richard K. Gilbert, appointed by the court, argued the\ncause and filed the briefs for appellant. Kristen G. Hughes,\nappointed by the court, entered an appearance.\n\n Peter S. Smith, Assistant U.S. Attorney, argued the cause\nfor appellee. With him on the brief were Jessie K. Liu, U.S.\nAttorney, and Elizabeth Trosman and John P. Mannarino,\nAssistant U.S. Attorneys.\n\n Before: WILKINS and KATSAS, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Circuit Judge WILKINS.\n\f 2\n WILKINS, Circuit Judge. Appellant Francisco Carbajal-\nFlores pleaded guilty to one count of conspiracy to conduct the\naffairs of an enterprise through a pattern of racketeering\nactivity (“RICO conspiracy”), in violation of 18 U.S.C.\n§ 1962(d); one count of accessory after the fact for the murder\nof an officer or employee of the United States, in violation of\n18 U.S.C. §§ 3, 1111, and 1114; and one count of accessory\nafter the fact to the attempted murder of an officer or employee\nof the United States, in violation of 18 U.S.C. §§ 3, 1113, and\n1114. He appeals his sentence, arguing that the District Court\nerred when it considered his murder of a Mexican national in\nMexico when calculating his sentence under the Sentencing\nGuidelines. We agree with Flores, and we vacate and remand\nto the District Court for resentencing.\n\n I.\n\n The following facts are taken from the Stipulated\nStatement of Facts attached to Flores’s Plea Agreement. Flores\ndoes not dispute the facts on appeal.\n\n Flores was a member of the Los Zetas Cartel (“the Cartel”)\n– a violent and sophisticated criminal organization spanning\nfrom Central America to the United States. The Cartel was\nresponsible for transporting multi-ton quantities of cocaine and\nmarijuana, on a monthly basis, from Mexico to the United\nStates. The Cartel’s hit squads patrolled Cartel-controlled\nterritory primarily by vehicle, providing protection for the\nCartel’s illegal activity, including protection of its lucrative\ndrug trafficking routes from Mexico to the United States,\nidentification and elimination of rival cartel members,\nkidnappings, carjackings, human smuggling, and assassinations.\n\n In January 2011, while assigned to a hit squad located in\nSan Luis Potosí, Mexico, Flores and others kidnapped a person\n\f 3\nthat they believed to be a rival cartel member. During the\nkidnapping, Mexican authorities confronted Flores’s hit squad,\nand a chase and gun battle ensued. Flores’s hit squad\neventually escaped. During the escape, Flores was ordered to\nexecute the kidnapping victim, and Flores did so by shooting\nhim.\n\n On February 15, 2011, ICE Special Agents Jaime Zapata\n(“SA Zapata”) and Victor Avila (“SA Avila”) were returning\nto Mexico City after meeting with U.S. personnel in Matehuala,\nMexico. As the two ICE agents drove south on Mexican\nHighway 57, outside of San Luis Potosí, they encountered two\nvehicles, each occupied by an armed Cartel hit squad. The two\nhit squads forced the ICE agents off the road and attempted to\nsteal their armored car. The hit men subsequently fired nearly\n100 rounds at the Special Agents, with several rounds entering\nthe armored car through an open window. SA Zapata was\nkilled and SA Avila was seriously wounded. The hit squads\nfled.\n\n Flores was not present during the February 15, 2011,\nattack on the ICE agents. The next day, Flores attempted to\nrejoin his hit squad but was told not to return. Members of the\nhit squad told Flores what had happened during the attack, and\nthey made several inculpatory statements about their\nparticipation in that attack.\n\n Law enforcement personnel from Mexico and the United\nStates worked together to identify the perpetrators. On\nFebruary 23, 2011, Mexican authorities arrested members of\nthe hit squad, including Flores, who was serving as the hit\nsquad’s lookout at the time of the arrest. Authorities recovered\nvarious firearms the hit squad had stored, and ballistics testing\nlinked those weapons to the attack on the ICE agents.\n\f 4\n On May 28, 2011, Flores voluntarily surrendered to the\nU.S. government. In connection with the February 15, 2011,\nattack on the two ICE agents, Flores was charged by\nInformation with RICO conspiracy (Count One); accessory\nafter the fact for the murder of an officer or employee of the\nUnited States (Count Two); and accessory after the fact to the\nattempted murder of an officer or employee of the United\nStates (Count Three).\n\n In January 2012, Flores pleaded guilty to all charges in the\nInformation. Pursuant to the Plea Agreement, the parties\nagreed to a Sentencing Guidelines calculation, which Flores\nnow argues was legally incorrect. To calculate a Guidelines\nsentence, a district court must first select the applicable offense\nguideline and then select the base offense level within that\napplicable offense guideline. See U.S.S.G. §§ 1B1.1(a)(1)-(2),\n1B1.2(a). Here, under Count One, the parties agreed that\n\n [t]he underlying racketeering activity conducted\n by members of the criminal enterprise in this case\n involved murder; distribution or importation of a\n controlled substance; conspiracy to do the same;\n and accessory after the fact to commit the murder\n or the attempted murder of an officer or\n employee of the United States.\n\nJ.A. 39. The parties agreed to U.S.S.G. § 2E1.1 as the\napplicable offense guideline, and they agreed that the base\noffense level for Count One would be 43 under U.S.S.G.\n§ 2E1.1(a)(2), because the base offense level for murder is 43\nunder U.S.S.G. § 2A1.1(a).\n\n The Plea Agreement calculated the base offense level for\nCount Two as 30 under U.S.S.G. §§ 2A1.1 and 2X3.1(a)(3)(A),\nand it calculated the base offense level for Count Three as 27\n\f 5\nunder U.S.S.G. §§ 2A2.1 and 2X3.1. Under U.S.S.G.\n§ 3D1.2(c), the parties agreed to treat the counts as closely\nrelated because Count One embodied the conduct alleged in\nCounts Two and Three. Therefore, the applicable offense level\nto the group became that of the most serious of the counts\nwithin the group, resulting in an overall offense level of 43.\n\n Pursuant to the Plea Agreement, if Flores demonstrated an\nacceptance of responsibility to the satisfaction of the\ngovernment, the government would agree to a two-level\nreduction with respect to Count Two under U.S.S.G. § 3E1.1(a)\nand a one-level reduction under U.S.S.G. § 3E1.1(b). With a\nCriminal History Category of I and a base offense level of 40,\nthe parties agreed that the applicable Guidelines range would\nbe 292 to 365 months of incarceration. The parties also agreed\nthat the District Court would make any final Guidelines\ndeterminations and that the agreed-upon calculation in the Plea\nAgreement was not binding on the Court.\n\n The presentence report (“PSR”) arrived at the same\nGuidelines calculation as the Plea Agreement but calculated it\ndifferently by grouping the counts pursuant to U.S.S.G.\n§ 3D1.2(b) and determining the combined offense level\npursuant to U.S.S.G. § 3D1.4. The PSR identified four\nseparate overt acts of the RICO conspiracy described in Count\nOne: the murder of SA Zapata (Overt Act One); the attempted\nmurder of SA Avila (Overt Act Two); the murder of the kidnap\nvictim in January 2011 (Overt Act Three); and\ndistribution/importation of five kilograms or more of a mixture\nand substance containing a detectable amount of cocaine and\n1,000 kg or more of a mixture and substance containing a\ndetectable amount of marijuana (Overt Act Four).\n\n Flores objected to the PSR’s analysis with respect to Overt\nAct Three on the ground that the murder of the Mexican kidnap\n\f 6\nvictim was not “racketeering activity” because it was not a\nviolation of U.S. law. The government also filed some\nobjections and comments to the PSR, but it did not object to\nthe PSR treating the murder of the kidnap victim as a separate\nracketeering activity. The government did, however, urge the\nPSR writer to treat the murder of SA Zapata as reasonably\nforeseeable conduct.\n\n The Probation Office did not change its calculation with\nrespect to the murder of the kidnap victim. It responded that\n\n [Flores] would be held accountable for any\n activities that were reasonably foreseeable in\n connection with the criminal activity that\n occurred during the commission of the offense of\n conviction, in preparation for that offense, or in\n the course of attempting to avoid detection or\n responsibility for that offense, USSG\n § 1B1.3(a)(1)(B). The murder of the kidnap\n victim in January of 2011, was also in\n furtherance of the Zeta’s lucrative drug\n trafficking operation and was included in the\n RICO offense to which he pled. However,\n should the Court determine the defendant’s\n position is correct the total offense level would\n be 27 (base offense level 30, reduced by three\n levels for acceptance of responsibility) and his\n advisory guideline range would be 70 to 87\n months.\n\nJ.A. 118.\n\n Before sentencing, both parties filed sentencing\nmemoranda. The government urged the District Court to adopt\nthe analysis of the PSR and moved for a downward departure\n\f 7\nof seven levels in light of Flores’s substantial assistance to the\ngovernment. This seven-level departure was based, in part, on\nFlores’s testimony against his coconspirators, and it resulted in\na guideline range of 135 to 168 months. Flores’s sentencing\nmemorandum repeated his argument that the murder of the\nMexican kidnap victim could not be racketeering activity under\n18 U.S.C. § 1961.\n\n At the sentencing hearing, Flores’s counsel repeated his\nargument about the Mexican kidnap victim and the government\nrepeated its argument that the murder of SA Zapata and “the\nother murders were all certainly foreseeable.” J.A. 158-61.\nThe District Court did not specifically address Flores’s\nargument and adopted the PSR as written. The District Court\nsentenced Flores to a total of twelve years of incarceration, to\nbe followed by three years of supervised release. The District\nCourt entered judgment in November 2017. Flores timely filed\na notice of appeal.\n\n II.\n\n In reviewing the reasonableness of a sentence, we proceed\nin two steps. United States v. Warren, 700 F.3d 528, 531 (D.C.\nCir. 2012). First, we look to whether the District Court\ncommitted significant procedural error in determining the\nGuidelines range. Id. Procedural errors include “failing to\ncalculate (or improperly calculating) the Guidelines range . . .\nor failing to adequately explain the chosen sentence.” Gall v.\nUnited States, 552 U.S. 38, 51 (2007). We review purely legal\nquestions de novo, review factual findings for clear error, and\ngive due deference to the District Court’s application of the\nGuidelines to the facts. United States v. Jones, 744 F.3d 1362,\n1366 (D.C. Cir. 2014). Second, we consider holistically\nwhether the sentence was objectively reasonable given the\nsentencing factors outlined in 18 U.S.C. § 3553(a). Warren,\n\f 8\n700 F.3d at 531. If a procedural objection was timely made\nbefore the District Court, we review it for abuse of discretion.\nIn re Sealed Case, 809 F.3d 672, 675 (D.C. Cir. 2016). If not,\nwe review the claim for plain error. Id.\n\n A.\n\n The government relies on several civil cases to argue that\nbecause Flores expressly adopted the Guidelines calculation in\nhis Plea Agreement, he is judicially estopped from challenging\nthat calculation on appeal. Importantly, however, the\ngovernment conceded at oral argument that no court has ever\nheld that a defendant is estopped on appeal from making an\nargument of law with respect to his or her plea agreement. See\nOral Arg. Recording 48:32-49:05. We find no reason to break\nnew ground by adopting the government’s judicial estoppel\nargument here.\n\n Even setting aside the questionable applicability of the\njudicial estoppel doctrine to plea agreements, the government’s\njudicial estoppel argument fails on the merits. “[J]udicial\nestoppel is used to preclude a party from taking a position that\nis inconsistent with one successfully asserted by the same party\nin a prior proceeding.” United Mine Workers of Am. 1974\nPension v. Pittston Co., 984 F.2d 469, 477 (D.C. Cir. 1993).\nWhile “the circumstances under which judicial estoppel may\nappropriately be invoked are probably not reducible to any\ngeneral formulation of principle,” New Hampshire v. Maine,\n532 U.S. 742, 750 (2001) (internal quotation marks, alterations,\nand citation omitted), the Supreme Court has specified at least\nthree questions that should inform a court’s decision to apply\njudicial estoppel:\n\n (1) Is a party’s later position clearly inconsistent\n with its earlier position? (2) Has the party succeeded\n\f 9\n in persuading a court to accept that party’s earlier\n position, so that judicial acceptance of an\n inconsistent position in a later proceeding would\n create the perception that either the first or the\n second court was misled? (3) Will the party seeking\n to assert an inconsistent position derive an unfair\n advantage or impose an unfair detriment on the\n opposing party if not estopped?\n\nMoses v. Howard Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir.\n2010) (citing Maine, 532 U.S. at 750-51).\n\n Here, Flores initially agreed to a Guidelines calculation of\n40 in his Plea Agreement but later challenged this calculation\nin his objections to the PSR, again in his sentencing\nmemorandum, and again at the sentencing hearing. He does\nnot dispute that he committed the murder of the kidnap victim\nas detailed in the Information and the Stipulated Statement of\nFacts; instead, he objects to the District Court’s use of the\nkidnap victim’s murder in arriving at his Guidelines\ncalculation, which is a legal question. Stipulations about legal\nissues in plea agreements are not binding on the district court.\n“While parties may enter into stipulations of fact that are\nbinding upon them unless they can show manifest injustice,\nparties may not stipulate to the legal conclusions to be reached\nby the court.” Weston v. Wash. Metro. Area Transit Auth., 78\nF.3d 682, 685 (D.C. Cir. 1996) (internal quotation marks and\ncitations omitted).\n\n Furthermore, the Plea Agreement specified that “the\nfailure of the Court or the Probation Office to determine the\nguideline range in accordance with the above calculations will\nnot void this Plea Agreement,” and “the sentence to be imposed\nis a matter solely within the discretion of the Court.” J.A. 40.\nIn light of these express statements, the government fails to\n\f 10\nestablish how Flores succeeded in persuading the District Court\nto accept the Plea Agreement’s Guidelines calculation. What\nFlores received when he entered into the Plea Agreement was\na reservation by the District Court to determine the appropriate\nsentence at sentencing – not a favorable judicial decision. We\nrefuse to accept the government’s argument that a defendant\nprevails in obtaining a favorable judicial decision when a\ndistrict court accepts a plea agreement subject to determining\nhis or her sentence at sentencing. Accordingly, judicial\nestoppel does not apply.\n\n B.\n\n Flores argues that the PSR and the District Court were\nincorrect in considering his murder of the Mexican kidnap\nvictim as a “racketeering activity” in calculating his sentence.\nThe government argues that in calculating Flores’s offense\nlevel, the District Court properly included Flores’s 2011\nmurder of the kidnap victim as “relevant conduct” under\nU.S.S.G. § 1B1.3, and that by its plain language, the relevant\nconduct provision includes extraterritorial conduct. Flores\nargues that the government raises its relevant conduct argument\nfor the first time on appeal.\n\n Before diving into the merits of Flores’s argument, we\nmust address whether the District Court properly calculated\nFlores’s base offense level. The District Court did not explain\nthe basis of Flores’s sentence. Rather, after listening to the\nparties’ arguments on the role the murder of the kidnap victim\nshould play at sentencing, the district court stated that it would\n“adopt the [presentence] report as written.” J.A. 161. The Plea\n\f 11\nAgreement 1 and PSR do not mention “relevant conduct” under\nU.S.S.G. § 1B1.3. The only mention of “relevant conduct”\nappears in the PSR’s Addendum, in response to Flores’s\nobjection to the use of the kidnap victim murder in the\ncalculation of his base offense level. In response to Flores’s\nobjection, the Probation Office stated that “[a]s part of the\njointly undertaken criminal activity in furtherance of the\nracketeering conspiracy, the murder of SA Zapata by the\ncoconspirators is relevant conduct and an act in furtherance of\nthe RICO conspiracy” for which Flores “would be held\naccountable . . . [under] USSG § 1B1.3(a)(1)(B).” J.A. 118.\nAfter discussing why the murder of SA Zapata is “relevant\nconduct” under § 1B1.3(a)(1)(B), the Probation Office stated –\nwithout citation – that “[t]he murder of the kidnap victim in\nJanuary of 2011, was also in furtherance of the Zeta’s lucrative\ndrug trafficking operation and was included in the RICO\noffense to which [defendant] pled.” J.A. 118.\n\n The problem with the Probation Office’s response is that\nin discussing relevant conduct, it relied on § 1B1.3(a)(1)(B) –\nthe subsection that concerns “act and omissions of others” in a\njointly undertaken criminal activity, also known as the\naccomplice attribution element of relevant conduct. U.S.S.G.\n§ 1B1.3(a)(1)(B) (emphasis added). The subsection that would\naddress Flores’s murder of the kidnap victim is\n§ 1B1.3(a)(1)(A), 2 which concerns the “acts and omissions\n\n1\n The Plea Agreement makes only one reference to U.S.S.G. § 1B1.3.\nSpecifically, it cites to § 1B1.3 and § 2A1.1 for the proposition that\nthe base offense level for Count One is 43.\n2\n U.S.S.G. § 1B1.3(a)(1)(A) states:\n\n Unless otherwise specified, (i) the base offense level\n where the guideline specifies more than one base\n offense level, (ii) specific offense characteristics and\n (iii) cross references in Chapter Two, and\n\f 12\ncommitted . . . by the defendant.” Id. § 1B1.3(a)(1)(A) (emphasis\nadded).\n\n The record and the government’s briefing lack a single\ncitation to § 1B1.3(a)(1)(A). Similarly, the PSR and its\nAddendum never assert that the murder of the Mexican kidnap\nvictim was included as “relevant conduct.” Indeed, in the\nPSR’s Addendum, the Probation Office conceded that “should\nthe Court determine the defendant’s position is correct” with\nrespect to the murder of the Mexican kidnap victim, “the total\noffense level would be 27 . . . and his advisory guideline range\nwould be 70 to 87 months” rather than 292 to 365 months. J.A.\n118. By virtue of adopting the PSR as written, the District\nCourt appears to have conflated the relevant conduct\nsubsections and calculated Flores’s base offense level of 43\nbased on § 1B1.3(a)(1)(B). The government did not defend\nthis basis at oral argument and instead contended that we\nshould affirm based on the understanding that the District\nCourt relied on § 1B1.3(a)(1)(A). See Oral Arg. Recording\n28:43-29:12. However, time and again, the Supreme Court\nhas stated that “[a] district court that ‘improperly calculat[es]’\na defendant’s Guidelines range . . . has committed a ‘significant\nprocedural error.’” Molina-Martinez v. United States, 136 S.\nCt. 1338, 1345-46 (2016) (quoting Gall v. United States, 552\nU.S. 38, 51 (2007)). We cannot say as a matter of law that the\nDistrict Court relied on § 1B1.3(a)(1)(A) in calculating\nFlores’s base offense level or that it would have relied on this\nprovision if it had the opportunity to do so. We therefore\ncannot affirm in light of such uncertainty.\n\n (iv) adjustments in Chapter Three, shall be\n determined on the basis of . . . all acts and omissions\n committed, aided, abetted, counseled, commanded,\n induced, procured, or willfully caused by the\n defendant.\n\f 13\n\n C.\n\n Even if the District Court had intended to consider Flores’s\nmurder of the Mexican kidnap victim as relevant conduct under\nU.S.S.G. § 1B1.3(a)(1)(A), it would not have been able to do\nso. The PSR based its Guidelines calculation on the\nassumption that the kidnap victim murder was “underlying\nracketeering activity” under U.S.S.G. § 2E1.1. However, at\noral argument, the government conceded that the murder of the\nMexican kidnap victim in Mexico was not “racketeering\nactivity.” See Oral Arg. Recording 23:16-23:20. We agree\nwith the government’s concession and must reverse the District\nCourt because the relevant conduct Guidelines cannot be used\nto calculate the base offense level of an act that does not qualify\nas “racketeering activity.” To explain our holding – and\nbecause “[t]he Guidelines are complex,” Molina-Martinez, 136\nS. Ct. at 1342 – we explain the sequence of steps a district court\nmust follow in calculating a defendant’s sentence under the\nGuidelines.\n\n To arrive at a Guidelines sentence, a district court must\nfirst determine the offense guideline section from Chapter Two\napplicable to the offense of conviction, and it must do so by referring\nto the Statutory Index. U.S.S.G. §§ 1B1.1(a)(1), 1B1.2(a). At the\nsecond step, the district court must “[d]etermine the base\noffense level and apply any appropriate specific offense\ncharacteristics, cross references, and special instructions\ncontained in the particular guideline in Chapter Two in the\norder listed.” Id. § 1B1.1(a)(2).\n\n Here, the applicable Guidelines section for Flores’s\noffense of conviction – 18 U.S.C. § 1962(d) – is U.S.S.G.\n§ 2E1.1 (Unlawful Conduct Relating to Racketeer Influenced\nand Corrupt Organizations). U.S.S.G. § 2E1.1 instructs the\n\f 14\nDistrict Court to determine the defendant’s base offense level\nby applying the greater of 19 or “the offense level applicable to\nthe underlying racketeering activity.” U.S.S.G. § 2E1.1(a).\nThis reference to “the offense level applicable to the underlying\nracketeering activity” in § 2E1.1(a)(2) is a cross-reference that\ntriggers § 1B1.3, which in turn directs the district court to\nconsider relevant conduct in determining a defendant’s base\noffense level. See United States v. Carrozza, 4 F.3d 70, 75 (1st\nCir. 1993); United States v. Masters, 978 F.2d 281, 284 (7th\nCir. 1992); see also U.S.S.G. § 1B1.5, application note 1\n(“References to other offense guidelines . . . may be to a\nspecific guideline, or may be more general (e.g., to the\nguideline for the ‘underlying offense’).”).\n\n While “[c]onduct that is not formally charged or is not an\nelement of the offense of conviction may enter into the\ndetermination of the applicable guideline sentencing range,”\nU.S.S.G. § 1B1.3, Background; in RICO cases, the relevant\nconduct that can be considered must also qualify as\n“racketeering activity,” id. § 2E1.1(a)(2). Contrary to the\ngovernment’s argument that a district court can consider acts\nthat do not qualify as “racketeering activity” so long as such\nactivity is within the scope of the RICO conspiracy, § 2E1.1\nlacks a textual hook to go beyond “racketeering activity.”\n\n The government fails to cite a single case supporting its\nproposition, and its argument contradicts the plain text of the\nRICO statute and the RICO Guidelines provision, both of\nwhich use the term of art “racketeering activity.” See Klehr v.\nA.O. Smith Corp., 521 U.S. 179, 183 (1997) (“The phrase\n‘racketeering activity’ is a term of art defined in terms of\nactivity that violates other laws.”). As the Supreme Court\nrecently explained:\n\f 15\n The [RICO] statute defines “racketeering activity”\n to encompass dozens of state and federal offenses,\n known in RICO parlance as predicates. These\n predicates include any act “indictable” under\n specified federal statutes, §§ 1961(1)(B)-(C), (E)-\n (G), as well as certain crimes “chargeable” under\n state law, § 1961(1)(A), and any offense involving\n bankruptcy or securities fraud or drug-related\n activity that is “punishable” under federal law,\n § 1961(1)(D).\n\nRJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090,\n2097 (2016). Importantly, to qualify as “racketeering activity,”\nan act must be “indictable,” “chargeable,” or “punishable”\nunder one of the statutes identified in § 1961(1). Id. at 2102.\nHere, the government conceded that Flores’s murder of a\nMexican national in Mexico was not “racketeering activity,”\nand we agree because it would not be indictable under any of\nthe statutes listed in § 1961(1). Accordingly, even if the\nDistrict Court concluded that the Mexican kidnap murder\nconstituted relevant conduct under § 1B1.3, it could not use\nthat murder to calculate Flores’s base offense level because\n§ 2E1.1(a)(2) circumscribes relevant conduct to “underlying\nracketeering activity.”\n\n The prevailing case law supports our view. In United\nStates v. Carrozza, 4 F.3d 70 (1st Cir. 1993), defendant\nRaymond J. Patriarca pleaded guilty to one count of conspiring\nto violate RICO, one count of violating RICO, four counts of\ninterstate travel in aid of racketeering, and one count of\nconspiring to violate the Travel Act. Id. at 72. The government\nsought to include specific acts of relevant conduct under\nU.S.S.G. § 1B1.3 in determining Patriarca’s base offense level,\nbut the district court limited relevant conduct to only those\npredicate acts that were charged against the defendant. Id. at\n\f 16\n73-74. The government appealed, and the First Circuit\nconcluded that the district court erred when it limited relevant\nconduct to conduct in furtherance of the predicate acts charged\nagainst the defendant. The First Circuit held that “the term\n‘underlying racketeering activity’ in § 2E1.1(a)(2) means\nsimply any act, whether or not charged against defendant\npersonally, that qualifies as a RICO predicate act under 18\nU.S.C. § 1961(1) and is otherwise relevant conduct under\n§ 1B1.3.” Id. at 77.\n\n Contrary to the government’s current position, the\ngovernment in Carrozza argued before the First Circuit that\n\n [a]n uncharged act might have been committed in\n furtherance of the RICO conspiracy, but if that act\n does not constitute “underlying racketeering\n activity,” then there is no mechanism in § 2E1.1 for\n quantifying that act, because the base offense level\n for § 2E1.1 is equal to “the offense level applicable\n to the underlying racketeering activity.”\n\nBrief of Appellant United States of America at 18, United\nStates v. Carrozza, 4 F.3d 70 (1st Cir. 1993) (No. 92-2213),\n1992 WL 12574203. And in its brief in opposition to certiorari\nin the same case, the Solicitor General conceded that\n“underlying racketeering activity” must be interpreted to mean\ncharged or uncharged conduct that would qualify as a predicate\nact under 18 U.S.C. § 1961(1). Brief for the United States in\nOpposition, Patriarca v. United States, 511 U.S. 1069 (1994)\n(No. 93-1350), 1994 WL 16100403 at *9.\n\n Similarly, in cases involving the relevant-conduct analysis\nin the § 2E1.1 context, several other of our sister circuits have\nconsidered as relevant conduct only acts that also qualified as\nunderlying RICO predicate acts. See, e.g., United States v.\n\f 17\nBarragan, 871 F.3d 689, 715-16 (9th Cir. 2017); United States\nv. Massino, 546 F.3d 123, 135 (2d Cir. 2008); United States v.\nCorrado, 304 F.3d 593, 608 (6th Cir. 2002). We are not aware\nof any contrary holdings in the courts of appeal. We therefore\ndecline the government’s invitation to use § 1B1.3 to extend\nthe § 2E1.1 analysis beyond racketeering activity.\n\n ***\n\n For these reasons, we conclude that the District Court\nerred in calculating Flores’s applicable Guidelines range and\nthat this error sufficiently prejudices Flores to require\nresentencing. See United States v. Tann, 532 F.3d 868, 875-76\n(D.C. Cir. 2008).\n\n So ordered.\n[END_CASE]",
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4,579,770 | In Re: Grand Jury Subpoena | In re: Grand Jury Subpoena | 2019-01-08 | 18-3071 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued December 14, 2018 Decided January 8, 2019\n\n No. 18-3071\n\n IN RE: GRAND JURY SUBPOENA\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:18-gj-00041)\n\n\n\n Before: TATEL and GRIFFITH, Circuit Judges, and\nWILLIAMS, Senior Circuit Judge.\n\n Opinion for the Court filed PER CURIAM.\n\n Opinion concurring in part and concurring in the judgment\nfiled by Senior Circuit Judge WILLIAMS.\n\n PER CURIAM: * With the Foreign Sovereign Immunities Act\n(the “Act”), Congress unquestionably set out a comprehensive\nframework for resolving whether foreign states are entitled to\nimmunity in civil actions. But did Congress, through the same\nAct, tell us how to handle claims for immunity in criminal cases\nas well? That question looms large over this litigation\n\n *\n NOTE: Portions of this opinion contain sealed\ninformation, which has been redacted.\n\f 2\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nconcerning a subpoena issued by a grand jury, but we find it\nunnecessary to supply a definitive answer. Assuming the Act’s\nimmunity applies, we hold that it leaves intact the district\ncourts’ subject-matter jurisdiction over federal criminal cases\ninvolving foreign sovereigns, and that there is a reasonable\nprobability the information sought through the subpoena here\nconcerns a commercial activity that caused a direct effect in the\nUnited States. Because the Act—even where it applies—allows\ncourts to exercise jurisdiction over such activities, and because\nthe ancillary challenges in this appeal lack merit, we affirm the\ndistrict court’s order holding the subpoena’s target, a\ncorporation owned by a foreign sovereign, in contempt for\nfailure to comply.\n\n I.\n\n The grand jury seeks information from a corporation (“the\nCorporation”) owned by Country A and issued a subpoena\ndirecting the Corporation to produce that information.\n\n The Corporation moved to\nquash the subpoena, arguing that it is immune under the Act,\nor, alternatively, that the subpoena is unreasonable or\noppressive (and therefore unenforceable under Federal Rule of\nCriminal Procedure 17(c)(2)) because it would require the\nCorporation to violate Country A’s domestic law.\n\n The district court denied the motion to quash. The\nCorporation took an immediate appeal, which an earlier panel\nof this court dismissed for lack of appellate jurisdiction. Per\nCuriam Order, In re Grand Jury Subpoena, No. 18-3068\n(October 3, 2018). The district court then held the Corporation\nin contempt, imposing a fine of $50,000 per day until the\nCorporation complies with the subpoena, but stayed accrual\n\f 3\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nand execution of the penalty pending appeal. The Corporation\nthen filed this appeal of the contempt order. Because this\nappeal involves exclusively legal questions, our review is de\nnovo. In re Sealed Case, 146 F.3d 881, 883 (D.C. Cir. 1998)\n(reviewing contempt order de novo where the district court\nallegedly “applied the wrong legal standard”). In a judgment\ndated December 18, 2018, we affirmed the district court and\nexplained that a full opinion would follow. This is that opinion.\n\n II.\n\n Before 1952, foreign sovereigns enjoyed “complete\nimmunity” in United States courts as “a matter of grace and\ncomity.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.\n480, 486 (1983). First articulated in The Schooner Exchange v.\nMcFaddon, 11 U.S. (7 Cranch) 116 (1812), that rule was in\nharmony with the then-existing “general concepts of\ninternational practice.” Michael Wallace Gordon, Foreign\nState Immunity in Commercial Transactions § 3.01 (1991).\nOver the next century and a half, change slowly crept over the\nhorizon. “[A]s foreign states became more involved in\ncommercial activity,” by taking over businesses and other\nhistorically private functions, many grew concerned that states\ncould manipulate their immunity to obtain market advantages\nby evading accountability mechanisms that would hinder\npurely private corporations. Rubin v. Islamic Republic of Iran,\n138 S. Ct. 816, 821–22 (2018) (noting that the State\nDepartment had expressed such a concern). As a result, several\ncountries began stripping foreign sovereigns of their former\nimmunity for “private,” usually commercial, acts. Letter from\nJack B. Tate, Acting Legal Adviser, Department of State, to\nActing Attorney General Philip B. Perlman (May 19, 1952),\nreprinted in 26 Department of State Bulletin 984–85 (June 23,\n1952) (“Tate Letter”).\n\f 4\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n The United States joined this club in 1952, when the\nActing Legal Adviser to the State Department issued a letter\n(known as the “Tate Letter”) adopting this so-called\n“‘restrictive theory of sovereign immunity.’” Rubin, 138 S. Ct.\nat 822 (quoting Verlinden, 461 U.S. at 488). The result “proved\ntroublesome.” Verlinden, 461 U.S. at 487. Because courts\nrelied “primarily” on the State Department to guide them\nregarding which activities remained immune, many disputes\nthat were essentially private had the potential to become\nspiraling diplomatic imbroglios for the administration of the\nday. Id. Nobody was especially happy with the outcomes:\n“inconsistent” immunity determinations heavily informed by\n“‘political’” and diplomatic considerations. Samantar v.\nYousuf, 560 U.S. 305, 312–13 (2010) (quoting Republic of\nAustria v. Altmann, 541 U.S. 677, 690 (2004)).\n\n Seeking to extract the State Department from this stew and\n“endorse and codify the restrictive theory of sovereign\nimmunity,” Congress passed the Foreign Sovereign\nImmunities Act in 1976. Id. at 313. Where the Act applies, it\ndoes three things relevant to this case: (1) as a general matter,\nit extends foreign sovereigns “immun[ity] from the jurisdiction\nof the courts of the United States,” 28 U.S.C. § 1604; (2) it\ncreates exceptions to the rule of immunity under various\ncircumstances, including cases based on certain “commercial\nactivit[ies]” of the sovereign, id. § 1605(a)(2); and (3) it grants\nfederal district courts subject-matter jurisdiction over certain\n“nonjury civil action[s]” against foreign states where they lack\nimmunity, id. § 1330(a).\n\n The key question here is whether the Act—including\nsection 1604’s grant of immunity—applies to civil and criminal\nproceedings alike. The Corporation tells us the Act does apply\n\f 5\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nhere, and thereby immunizes the Corporation from this\nsubpoena. The government responds that no part of the Act\napplies to criminal proceedings. “Immunity in criminal\nmatters,” the government assures us, “‘simply was not the\nparticular problem to which Congress was responding.’”\nAppellee’s Br. 18 (quoting Samantar, 560 U.S. at 323).\n\n The few circuits to consider this issue have reached\ndiffering conclusions, albeit in circumstances distinct from\nthose here. Compare Southway v. Central Bank of Nigeria, 198\nF.3d 1210, 1214 (10th Cir. 1999) (stating in context of a civil\nRacketeer Influenced and Corrupt Organizations Act (“RICO”)\nclaim that the Act does not apply in criminal proceedings), and\nUnited States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997)\n(same, in case involving head-of-state immunity claim), with\nKeller v. Central Bank of Nigeria, 277 F.3d 811, 820 (6th Cir.\n2002) (stating in context of civil RICO claim that the Act does\napply in criminal proceedings), partially abrogated by\nSamantar, 560 U.S. 305. Mindful of our obligation to avoid\nsweeping more broadly than we must to decide the case in front\nof us, we need not weigh in on this dispute. As we explain\nbelow, even assuming section 1604’s grant of immunity\napplies to criminal proceedings, the Corporation still lacks\nimmunity from this particular subpoena.\n\n III.\n\n Taking section 1604’s grant of immunity as a given, the\ngovernment must check three boxes for the contempt order to\nstand. First, there must be a valid grant of subject-matter\njurisdiction. Second, one of the Act’s exceptions to immunity\nmust apply. And third, the contempt sanctions must be a\npermissible remedy. According to the district court, the\ngovernment satisfies all three. We agree.\n\f 6\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n A.\n\n We start, as we must, with subject-matter jurisdiction. The\ndistrict court purported to exercise its inherent contempt power\nin aid of its criminal jurisdiction. See FG Hemisphere\nAssociates, LLC v. Democratic Republic of Congo, 637 F.3d\n373, 377 (D.C. Cir. 2011) (explaining that “federal courts enjoy\ninherent contempt power” that “runs with a court’s\njurisdiction”). The problem, according to the Corporation, is\nthat the Act eliminated all criminal subject-matter jurisdiction\nover foreign sovereigns, taking the contempt power with it. The\ntext of the relevant statutes, however, cuts against the\nCorporation’s position. Section 3231 of title 18 gives federal\ncourts original jurisdiction over “all offenses against the laws\nof the United States.” It is hard to imagine a clearer textual\ngrant of subject-matter jurisdiction. “All” means “all”; the\nprovision contains no carve-out for criminal process served on\nforeign defendants. And nothing in the Act’s text expressly\ndisplaces section 3231’s jurisdictional grant. True, section\n1604 grants immunity “from the jurisdiction of the courts,” but\nthat is no help to the Corporation. Linguistically, granting a\nparticular class of defendants “immunity” from jurisdiction has\nno effect on the scope of the underlying jurisdiction, any more\nthan a vaccine conferring immunity from a virus affects the\nbiological properties of the virus itself.\n\n To be sure, we have often referred to the Act’s immunity\nprovisions as affecting “subject matter jurisdiction.” See, e.g.,\nOdhiambo v. Republic of Kenya, 764 F.3d 31, 34 (D.C. Cir.\n2014). But in offering that characterization, we are not\nreferring to section 1604. The provision that usually gives the\nexceptions to immunity their jurisdictional status is the Act’s\nprovision conferring subject-matter jurisdiction over foreign\n\f 7\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nstates in civil actions, codified at 28 U.S.C. § 1330(a). That\nsection authorizes jurisdiction over certain nonjury civil\nactions “with respect to which the foreign state is not entitled\nto immunity.” Thus, establishing that an exception to immunity\napplies is one element of invoking subject-matter jurisdiction\nunder section 1330(a). See Verlinden, 461 U.S. at 489 (using\nsection 1330(a) to link the immunity exceptions to subject-\nmatter jurisdiction). This feature of section 1330(a) does not\ntransmute the entirely separate section 1604 into a provision\nabout subject-matter jurisdiction.\n\n With no textual provision purporting to eliminate section\n3231’s grant of subject-matter jurisdiction, the Corporation\ninstead focuses on section 1330(a). Although that provision by\nits terms merely confers jurisdiction over an unrelated set of\ncivil cases, the Corporation assures us that, as with an iceberg,\nmuch hides beneath the surface. Specifically, the Corporation\nreads the provision to silently and simultaneously revoke\njurisdiction over any case not falling within its terms, including\nany criminal proceeding.\n\n Ordinarily, that argument would be a tough sell. We are\nusually reluctant to view one statute as implying a limited\nrepeal of another where the two are capable of coexisting. See\nMorton v. Mancari, 417 U.S. 535, 550 (1974) (“In the absence\nof some affirmative showing of an intention to repeal, the only\npermissible justification for a repeal by implication is when the\nearlier and later statutes are irreconcilable.”). But the\nCorporation argues this usual rule has no force in the context\nof foreign sovereign immunities, citing the Supreme Court’s\nstatement, first appearing in Argentine Republic v. Amerada\nHess Shipping Corp., that the Act is “the sole basis for\nobtaining jurisdiction over a foreign state in our courts.” 488\nU.S. 428, 434 (1989).\n\f 8\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n Amerada Hess was a civil action. Id. at 431. The plaintiffs\nsought relief in tort from Argentina for having bombed their\nneutral ship in the course of Argentina’s war with the United\nKingdom over the Falkland, or Malvinas, Islands. Id. at 431–\n32. Because the Act pretty plainly granted Argentina immunity\nfor this essentially sovereign act, see id. at 439–43, the\nplaintiffs sought to circumvent that immunity by invoking\nsubject-matter jurisdiction under the Alien Tort Statute, 28\nU.S.C. § 1350, which unlike section 1330(a) makes no mention\nof the immunity exceptions. Rebuffing that effort, the Supreme\nCourt concluded that founding jurisdiction on the Alien Tort\nStatute—or, for that matter, any “other grant[] of subject-\nmatter jurisdiction in Title 28,” id. at 437 (emphasis added)—\nwould conflict with Congress’s choice “to deal\ncomprehensively with the subject of foreign sovereign\nimmunity in the” Act, id. at 438. To avoid that outcome, when\nit comes to foreign sovereigns, the Court held that section\n1330(a) precludes subject-matter jurisdiction under other, more\ngeneral grants, listing the Alien Tort Statute and a bevy of other\nexamples from the civil code in title 28. Id. at 437–39.\nSubsequent decisions from the Supreme Court and this court\nechoing that conclusion can all be traced back to Amerada\nHess. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 355\n(1993) (quoting Amerada Hess); Schermerhorn v. State of\nIsrael, 876 F.3d 351, 353 (D.C. Cir 2017) (same). Neither the\nSupreme Court nor this court has ever extended Amerada\nHess’s holding to a criminal proceeding.\n\n Uncritically applying the exclusivity rule from Amerada\nHess in the criminal context would yield the conclusion the\nCorporation prefers: no jurisdiction, as this grand jury\nproceeding is plainly not a “nonjury civil action” covered by\nsection 1330(a). But even the briefest peek under the hood of\n\f 9\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nAmerada Hess shows that the Supreme Court’s reasons for\nfinding section 1330(a) to be the exclusive basis for jurisdiction\nin the civil context have no place in criminal matters.\n\n Crucial to the Court’s logic in Amerada Hess was that the\nimmunity provision in section 1604 and the jurisdictional\nprovision in section 1330(a) would “work in tandem”—that is,\nthat immunity and jurisdiction would rise and fall together. 488\nU.S. at 434. In its opinion, the Court gave no hint at all that it\nintended to create a loophole where, in criminal cases clearly\ncovered by an exception to immunity, a district court would\nnevertheless lack subject-matter jurisdiction. On the contrary,\nthe Court was chiefly concerned that exercising jurisdiction\nunder other provisions in title 28 would provide an end run\naround the Act’s immunity provision. See Amerada Hess, 488\nU.S. at 436 (“From Congress’ decision to deny immunity to\nforeign states in [a certain] class of cases . . . , we draw the\nplain implication that immunity is granted in those cases\ninvolving alleged violations of international law that do not\ncome within one of the [Act’s] exceptions.”). There is no\ndanger of that evasion here: section 1604 tells us that, where\nthe Act applies, an action must fall within one of the listed\nexceptions and says nothing about excluding criminal actions.\n\n In fact, a reading that embraces absolute immunity in\ncriminal cases is much harder to reconcile with the Act’s\ncontext and purpose. The Act’s “[f]indings and declaration of\npurpose” section explains that Congress intended that states\nwould “not [be] immune from the jurisdiction of foreign courts\ninsofar as their commercial activities are concerned.” 28 U.S.C.\n§ 1602; accord Rubin 138 S. Ct. at 822 (Congress sought to\nhold foreign sovereigns “accountable, in certain circumstances,\nfor their actions”). As the Corporation admits, however, under\nits reading a foreign-sovereign-owned, purely commercial\n\f 10\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nenterprise operating within the United States could flagrantly\nviolate criminal laws and the U.S. government would be\npowerless to respond save through diplomatic pressure. What’s\nmore, such a reading would signal to even non-sovereign\ncriminals that if they act through such an enterprise, the records\nmight well be immune from criminal subpoenas.\n\n We doubt very much that Congress so dramatically gutted\nthe government’s crime-fighting toolkit. The notion is that\nmuch harder to swallow given how unsettled the common law\nof criminal immunities for a corporation owned by a foreign\nstate was in 1976 and remains today. See, e.g., In re\nInvestigation of World Arrangements, 13 F.R.D. 280, 291\n(D.D.C. 1952) (suggesting the law may not recognize\nimmunity for a “commercial venture, entirely divorced from\nany governmental function”); Andrew Dickinson, State\nImmunity & State-Owned Enterprises, 10 No. 2 Bus. L. Int’l\n97, 124–25 (2009) (positing that international law might allow\ncriminal prosecutions of “state-owned enterprises”). The lack\nof reported cases—before and after the Act—considering\ncriminal process served on sovereign-owned corporations only\nhighlights this uncertainty. From that paucity, the Corporation\nwould have us infer that such corporations are universally\nunderstood to possess absolute immunity, but that notion\nstrikes us as highly speculative. An equally likely explanation\nfor the absence of cases is that most companies served with\nsubpoenas simply comply without objection.\n\n Faced with such uncertainty, if Congress really intended\nto furnish a definitive answer to such a fraught question, one\nwould expect that answer to show up clearly in the Act’s text,\nor at least to have been the subject of some discussion during\nthe legislative process. Cf. MCI Telecommunications Corp. v.\nAmerican Telephone and Telegraph Co., 512 U.S. 218, 23\n\f 11\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n(1994) (holding Congress did not authorize “a fundamental\nrevision” of the law through a “subtle device”). Yet the “Act\nand its legislative history do not say a single word about\npossible criminal proceedings under the statute.” Joseph W.\nDellapenna, Suing Foreign Governments and Their\nCorporations 37 (2d ed. 2003). To the contrary, the relevant\nreports and hearings suggest Congress was focused, laser-like,\non the headaches born of private plaintiffs’ civil actions against\nforeign states. See, e.g., H.R. Rep. No. 94-1487, at 6 (1976)\n(identifying the Act’s purpose as “provid[ing] when and how\nparties can maintain a lawsuit against a foreign state or its\nentities in the courts of the United States”); Jurisdiction of U.S.\nCourts in Suits Against Foreign States: Hearings on H.R.\n11315 Before the Subcommittee on Administrative Law and\nGovernmental Relations of the House Committee on the\nJudiciary, 94th Cong. 24 (1976) (testimony of Monroe Leigh,\nLegal Adviser, Department of State) (testifying that the\n“question” the Act addressed was “[h]ow, and under what\ncircumstances, can private persons maintain a lawsuit against a\nforeign government or against a commercial enterprise owned\nby a foreign government”). There is, accordingly, scant\nevidence that Congress sought to resolve such a significant and\nunsettled issue.\n\n This case is thus unlike Amerada Hess. We do not read\ncase law with the same textual exactitude that we would bring\nto bear on an Act of Congress. See Illinois v. Lidster, 540 U.S.\n419, 424 (2004) (“[G]eneral language in judicial opinions”\nshould be read “as referring in context to circumstances similar\nto the circumstances then before the Court and not referring to\nquite different circumstances that the Court was not then\nconsidering.”). Given the relevant statutes and the Supreme\nCourt’s reasoning, this is a situation where the Court’s earlier\nstatements, “[t]hough seemingly comprehensive,” do “not\n\f 12\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nprovide a clear answer in this case.” Altmann, 541 U.S. at 694.\nSince section 3231 and the Act can coexist peacefully, we have\nno trouble concluding that the Act leaves intact the district\ncourt’s criminal jurisdiction to enforce this subpoena.\n\n The Corporation warns us that reaching this conclusion\nwill create a new circuit split, based on the Sixth Circuit’s\nopinion in Keller v. Central Bank of Nigeria. But we see no\nconflict. Assessing whether the Act leaves room for criminal\nprosecutions, the Keller court considered whether the Act itself\ncontains a specific exception for criminal cases. 277 F.3d at\n820 (noting the Act contains no general “exception for criminal\njurisdiction”). No party drew the court’s attention to the\nseparate grant of subject-matter jurisdiction in section 3231,\nand the Sixth Circuit has yet to squarely address whether that\nprovision can support jurisdiction consistent with the Act.\nAccordingly, confronted with the same issue we face here, the\nSixth Circuit would be free to reach the same conclusion we\ndo: that section 3231 can be invoked in conjunction with the\nAct.\n\n At oral argument, the Corporation offered a new theory:\nthat section 3231 never authorized subject-matter jurisdiction\nover criminal proceedings involving foreign sovereigns, even\nbefore the Act. Section 3231’s text, however, contradicts that\nargument, as it authorizes jurisdiction over “all offenses against\nthe laws of the United States.” The Corporation’s\nunderdeveloped position appears to rest on language from pre-\nAct judicial opinions stating that, under the former regime of\ncomplete immunity, a court lacked “jurisdiction” over a case\nagainst a foreign sovereign. See, e.g., Schooner Exchange, 11\nU.S. (7 Cranch) at 135 (warship owned by foreign sovereign is\n“exempt from the jurisdiction of the country”). But those\nopinions date from an era when the word “[j]urisdiction” had\n\f 13\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n“many, too many, meanings.” Steel Co. v. Citizens for a Better\nEnvironment, 523 U.S. 83, 90 (1998) (internal quotation marks\nomitted) (quoting United States v. Vanness, 85 F.3d 661, 663\nn.2 (D.C. Cir. 1996)). In those days, the word’s more “elastic”\nconception did not necessarily refer to statutory subject-matter\njurisdiction. United States v. Cotton, 535 U.S. 625, 630 (2002).\nAs the Supreme Court’s later cases have clarified, the doctrine\nof foreign sovereign immunity that pre-dated the Act\n“developed as a matter of common law,” not statutory\nconstruction. Samantar, 560 U.S. at 311. And we know that\ncourts did not think the doctrine affected statutory subject-\nmatter jurisdiction because the immunity could be waived at\nthe behest of the U.S. government. Id. at 311–12. Even at that\ntime, a congressional limit on subject-matter jurisdiction could\nnot have been waived. See Louisville & Nashville Railroad Co.\nv. Mottley, 211 U.S. 149, 152 (1908) (“Neither party has\nquestioned that jurisdiction, but it is the duty of this court to see\nto it that the jurisdiction of the circuit court, which is defined\nand limited by statute, is not exceeded.”). We therefore find no\nmerit to the Corporation’s contention that section 3231’s\nhistorical reach excluded foreign sovereigns.\n\n B.\n\n Subject-matter jurisdiction is, however, just the beginning.\nAs we have assumed that section 1604 applies, the Corporation\nis immune from the court’s criminal jurisdiction, as well as its\nassociated contempt power, unless one of the Act’s exceptions\napplies.\n\n Before diving into the substance of those exceptions, we\npause briefly to dispel the Corporation’s claim that section\n1605(a)’s exceptions are categorically unavailable in criminal\ncases. The text easily resolves this issue in the government’s\n\f 14\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nfavor. Section 1605(a)’s exceptions apply to “any case” that\nfalls within one of the listed provisions. That language—“any\ncase”—is notable because, as section 1330(a) demonstrates,\nCongress knows how to limit a provision to a “civil action”\nwhen it wants to. Congress’s choice to extend the section\n1605(a) exceptions to “any case,” instead of just “civil\nactions,” tells us that they are available in criminal\nproceedings.\n\n Moving to those exceptions, in its ex parte filing the\ngovernment steers us to the third clause of section 1605(a)(2).\nThat provision denies immunity in an “action . . . based . . .\nupon an act outside the territory of the United States in\nconnection with a commercial activity of the foreign state\nelsewhere [when] that act causes a direct effect in the United\nStates.”\n\n Ordinarily, the Corporation would bear the burden to\nestablish that the exception does not apply. See EIG Energy\nFund XIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344–\n45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the\nburden of establishing the affirmative defense of immunity,”\nincluding “‘proving that the plaintiff’s allegations do not bring\nits case within a statutory exception to immunity.’” (quoting\nPhoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40\n(D.C. Cir. 2000))). Here, however, the government relies\nprimarily on ex parte evidence unavailable to the Corporation.\nWe have repeatedly approved the use of such information when\n“necessary to ensure the secrecy of ongoing grand jury\nproceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059,\n1075 (D.C. Cir. 1998), and we do so again here. But where the\ngovernment uses ex parte evidence, we think the burden falls\non the government to establish that the exception applies, and\nwe will conduct a searching inquiry of the government’s\n\f 15\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nevidence and legal theories as a substitute for the adversarial\nprocess.\n\n Of course, at this stage, it would be putting the cart well\nbefore the horse to require the government to definitively prove\nthat the factual predicates for the exception exist. The usual\nrule is that the showing necessary to find an exception\napplicable travels with the burden on the merits—for example,\nin a motion to dismiss where a defendant challenges only the\n“legal sufficiency” of the complaint, the exception must merely\nbe plausibly pled. Phoenix Consulting, 216 F.3d at 40. We see\nno reason to depart from that rule here. As we have explained\nin the personal-jurisdiction context, any other rule would risk\n“‘invert[ing] the grand jury’s function’” by “‘requiring that\nbody to furnish answers to its questions before it could ask\nthem.’” In re Sealed Case, 832 F.2d 1268, 1274 (D.C. Cir.\n1987) (quoting In re Grand Jury Proceedings Harrisburg\nGrand Jury 79-1, 658 F .2d 211, 214 (3d Cir. 1981)). As with\npersonal jurisdiction, then, we ask whether the government has\nshown a “‘reasonable probability’” that the exception applies.\nSee id. (quoting Marc Rich & Co. v. United States, 707 F.2d\n663, 670 (2d Cir. 1983)).\n\n The government’s ex parte evidence satisfactorily makes\nthe necessary showing.\n\f 16\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n These facts establish a “reasonable probability” that\nsection 1605(a)(2) covers this subpoena.\n\n\n\n\n All that remains, then, is to assess whether this “action”—\nthat is, the subpoena—is “based upon” this act—\n . We think it is. In a typical case, to know\nwhat the action is “based upon,” we look to the “‘gravamen’”\nor “core” of the action—that is, “‘those elements . . . that, if\nproven, would entitle [a party] to relief.’” OBB\n\f 17\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nPersonenverkehr AG v. Sachs, 136 S. Ct. 390, 395–96 (first\nalteration in original) (quoting Saudi Arabia, 507 U.S. at 357).\nThe Supreme Court has offered some guidance on how to\nascertain that core, explaining that a court should “identify the\nparticular conduct on which the plaintiff’s action is based.” Id.\n(quoting Saudi Arabia, 507 U.S. at 356) (internal quotation\nmarks and alterations omitted). Just how we apply this test in\nthe context of a subpoena is not immediately obvious. The\n“gravamen” of a subpoena may be the mere fact that an entity\npossesses the documents in question. Alternatively, the\n“gravamen” may be related to the content of the records and\nwhy they may be relevant to the government’s investigation.\nIndeed, the correct approach may well vary with the facts of a\ngiven case. Here, however, we need not resolve that issue,\n\n\n\n\n Because the statutory elements for the exception are all\npresent, it makes no difference that\n\f 18\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n C.\n\n With subject-matter jurisdiction and the commercial\nactivity exception out of the way, we are left with the remedy.\nAs long as the Act permits monetary contempt sanctions,\nsovereign immunity offers the Corporation no refuge. Circuit\nprecedent provides a clear answer: as we held in FG\nHemisphere, “contempt sanctions against a foreign sovereign\nare available under the” Act. 637 F.3d at 379. In that case, we\nupheld a civil contempt order against the Democratic Republic\nof the Congo very similar to the one imposed here. Id. at 376\n(describing penalty of “$5,000 per week, doubling every four\nweeks until reaching a maximum of $80,000 per week”). We\ndid so by dividing “the question of a court’s power to impose\nsanctions from the question of a court’s ability to enforce that\njudgment through execution.” Id. at 377. We stick to that\npractice today, meaning the form of the district court’s\ncontempt order was proper. Whether and how that order can be\nenforced by execution is a question for a later day.\n\n IV.\n\n Alternatively, the Corporation invokes Federal Rule of\nCriminal Procedure 17(c)(2), asserting the subpoena is\n“unreasonable or oppressive”—and must therefore be\nquashed—because it would require the Corporation to violate\nCountry A’s domestic law. Adhering to Federal Rule of\n\f 19\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nCriminal Procedure 26.1, we treat “[i]ssues of foreign law” as\n“questions of law.” But, as the party who “relies on foreign\nlaw,” the Corporation “assumes the burden of showing that\nsuch law prevents compliance with the court’s order.” In re\nSealed Case, 825 F.2d 494, 498 (D.C. Cir. 1987) (per curiam).\nIts efforts to carry that burden fall short.\n\n The Corporation claims that complying with the subpoena\nwould run afoul of Country A’s law\n\n\n\n\n The text of the law favors the government.\n\f 20\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n The Corporation claims that such a reading is “absurd,”\n\n\n\n But that claim is belied by\n\n\n\n\n To combat this reading of the text, in the district court and\nat the briefing stage in this court, the Corporation relied on two\ndeclarations from its retained counsel.\n\n\n\n Pointing to the Supreme Court’s recent decision in\nAnimal Science Products, Inc. v. Hebei Welcome\nPharmaceutical Co., 138 S. Ct. 1865, 1873 (2018), the\nCorporation urges us to “carefully consider” these declarations.\n\f 21\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n Of course, we agree that the declarations warrant our\ncareful consideration. But we must also heed the Supreme\nCourt’s additional instruction in Animal Science Products to\nscrutinize, when evaluating a foreign state’s position regarding\nthe contents of its own law, “the statement’s clarity,\nthoroughness, and support; its context and purpose; . . . [and]\nthe role and authority of the entity or official offering the\nstatement.” Id. Those factors all counsel against accepting the\nCorporation’s position here. The declarations are quite cursory,\nand they contain no citations to authority or Country A’s case\nlaw. Moreover, the statements come from the retained counsel\nof a party with a direct stake in this litigation, and they were\nplainly prepared with this particular proceeding in mind. Under\nthose circumstances, our careful consideration of the\ndeclarations leads us to conclude that they shed little light on\nthe meaning of Country A’s law as it would be interpreted by\nthat nation’s courts.\n\n Following similar criticisms from the district court and the\ngovernment, and after briefing was complete in this court, the\nCorporation submitted a new declaration, this time from a\nregulatory body of Country A. The government urges us to\nstrike this filing as untimely. Although that position is not\nwithout merit, exercising an abundance of caution and giving\ndue deference to Country A’s sovereign status, we will\nconsider the filing.\n\n Unfortunately for the Corporation, however, the filing fails\nto cure the crucial deficiencies of the original declarations. The\nnew filing still fails to cite a single Country A court case\narticulating the Corporation’s preferred interpretation of the\nlaw.\n\f 22\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n These omissions, combined with the fact that the\nstatement was clearly prepared in response to this litigation and\nat a very late hour, leave us unpersuaded that the statement\naccurately reflects how Country A’s courts would interpret the\nrelevant provision. Because the Corporation has failed to\nsatisfy its burden of showing that Country A’s law would\nprohibit complying with the subpoena, we agree with the\ndistrict court that enforcing the subpoena is neither\nunreasonable nor oppressive.\n\n V.\n\n Finally, the Corporation remains dissatisfied with this\ncourt’s ruling on its first appeal. It claims that, out of respect\nfor its foreign sovereign status, we should not have adhered to\nour usual rule requiring a contempt order before taking\nappellate jurisdiction over denial of a motion to quash. Even if\nwe had the power to undo a prior panel’s work in some\ncircumstances, we could not do so here. Because the district\ncourt has now held the Corporation in contempt, any opinion\nby us on whether that procedure was necessary would be\nentirely advisory. See Preiser v. Newkirk, 422 U.S. 395, 401\n(1975) (“[A] federal court has neither the power to render\nadvisory opinions nor ‘to decide questions that cannot affect\nthe rights of litigants in the case before them.’” (quoting North\n\f 23\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nCarolina v. Rice, 404 U.S. 244, 246 (1971))). We therefore\ndismiss as moot this aspect of the Corporation’s appeal.\n\n VI.\n\n For the foregoing reasons, we deny the government’s\nmotion to strike and affirm the district court’s contempt order.\n\n So ordered.\n\f Senior Circuit Judge\n\n\n\n\n OBB Personenverkehr AG\nv. Sachs this\n\f In re Sealed\nCase abrogated on\nother grounds by Braswell v. United States\n\n\n Gucci Am., Inc. v. Weixing Li\n\n\n\n\n ex parte\n\n\n\n\n BNSF Ry. Co. v. Tyrrell\n\n\n\n\n Leibovitch v. Islamic Republic\nof Iran\n\f Sealed Case\n\n\n\n\n In re Grand Jury Subpoena No.\n7409\n\n\n\n\n any\n\n\n\n\n Odhiambo v. Republic of Kenya\n\f ex parte\n\n\n\n\n id\n\n\n\n\n Masias v. EPA\n Schneider v. Kissinger\n\n\n\n\nex parte\n\n\n ex parte\n\f Grand Jury\nSubpoena No. 7409", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357023/", "author_raw": "PER CURIAM"}]} | TATEL | GRIFFITH | WILLIAMS | 1 | {"TATEL": ", Circuit", "GRIFFITH": ", Circuit", "WILLIAMS": ", Senior Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579770/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: In Re: Grand Jury Subpoena\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nPUBLIC COPY – SEALED INFORMATION DELETED\n\n\n United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued December 14, 2018 Decided January 8, 2019\n\n No. 18-3071\n\n IN RE: GRAND JURY SUBPOENA\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:18-gj-00041)\n\n\n\n Before: TATEL and GRIFFITH, Circuit Judges, and\nWILLIAMS, Senior Circuit Judge.\n\n Opinion for the Court filed PER CURIAM.\n\n Opinion concurring in part and concurring in the judgment\nfiled by Senior Circuit Judge WILLIAMS.\n\n PER CURIAM: * With the Foreign Sovereign Immunities Act\n(the “Act”), Congress unquestionably set out a comprehensive\nframework for resolving whether foreign states are entitled to\nimmunity in civil actions. But did Congress, through the same\nAct, tell us how to handle claims for immunity in criminal cases\nas well? That question looms large over this litigation\n\n *\n NOTE: Portions of this opinion contain sealed\ninformation, which has been redacted.\n\f 2\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nconcerning a subpoena issued by a grand jury, but we find it\nunnecessary to supply a definitive answer. Assuming the Act’s\nimmunity applies, we hold that it leaves intact the district\ncourts’ subject-matter jurisdiction over federal criminal cases\ninvolving foreign sovereigns, and that there is a reasonable\nprobability the information sought through the subpoena here\nconcerns a commercial activity that caused a direct effect in the\nUnited States. Because the Act—even where it applies—allows\ncourts to exercise jurisdiction over such activities, and because\nthe ancillary challenges in this appeal lack merit, we affirm the\ndistrict court’s order holding the subpoena’s target, a\ncorporation owned by a foreign sovereign, in contempt for\nfailure to comply.\n\n I.\n\n The grand jury seeks information from a corporation (“the\nCorporation”) owned by Country A and issued a subpoena\ndirecting the Corporation to produce that information.\n\n The Corporation moved to\nquash the subpoena, arguing that it is immune under the Act,\nor, alternatively, that the subpoena is unreasonable or\noppressive (and therefore unenforceable under Federal Rule of\nCriminal Procedure 17(c)(2)) because it would require the\nCorporation to violate Country A’s domestic law.\n\n The district court denied the motion to quash. The\nCorporation took an immediate appeal, which an earlier panel\nof this court dismissed for lack of appellate jurisdiction. Per\nCuriam Order, In re Grand Jury Subpoena, No. 18-3068\n(October 3, 2018). The district court then held the Corporation\nin contempt, imposing a fine of $50,000 per day until the\nCorporation complies with the subpoena, but stayed accrual\n\f 3\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nand execution of the penalty pending appeal. The Corporation\nthen filed this appeal of the contempt order. Because this\nappeal involves exclusively legal questions, our review is de\nnovo. In re Sealed Case, 146 F.3d 881, 883 (D.C. Cir. 1998)\n(reviewing contempt order de novo where the district court\nallegedly “applied the wrong legal standard”). In a judgment\ndated December 18, 2018, we affirmed the district court and\nexplained that a full opinion would follow. This is that opinion.\n\n II.\n\n Before 1952, foreign sovereigns enjoyed “complete\nimmunity” in United States courts as “a matter of grace and\ncomity.” Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.\n480, 486 (1983). First articulated in The Schooner Exchange v.\nMcFaddon, 11 U.S. (7 Cranch) 116 (1812), that rule was in\nharmony with the then-existing “general concepts of\ninternational practice.” Michael Wallace Gordon, Foreign\nState Immunity in Commercial Transactions § 3.01 (1991).\nOver the next century and a half, change slowly crept over the\nhorizon. “[A]s foreign states became more involved in\ncommercial activity,” by taking over businesses and other\nhistorically private functions, many grew concerned that states\ncould manipulate their immunity to obtain market advantages\nby evading accountability mechanisms that would hinder\npurely private corporations. Rubin v. Islamic Republic of Iran,\n138 S. Ct. 816, 821–22 (2018) (noting that the State\nDepartment had expressed such a concern). As a result, several\ncountries began stripping foreign sovereigns of their former\nimmunity for “private,” usually commercial, acts. Letter from\nJack B. Tate, Acting Legal Adviser, Department of State, to\nActing Attorney General Philip B. Perlman (May 19, 1952),\nreprinted in 26 Department of State Bulletin 984–85 (June 23,\n1952) (“Tate Letter”).\n\f 4\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n The United States joined this club in 1952, when the\nActing Legal Adviser to the State Department issued a letter\n(known as the “Tate Letter”) adopting this so-called\n“‘restrictive theory of sovereign immunity.’” Rubin, 138 S. Ct.\nat 822 (quoting Verlinden, 461 U.S. at 488). The result “proved\ntroublesome.” Verlinden, 461 U.S. at 487. Because courts\nrelied “primarily” on the State Department to guide them\nregarding which activities remained immune, many disputes\nthat were essentially private had the potential to become\nspiraling diplomatic imbroglios for the administration of the\nday. Id. Nobody was especially happy with the outcomes:\n“inconsistent” immunity determinations heavily informed by\n“‘political’” and diplomatic considerations. Samantar v.\nYousuf, 560 U.S. 305, 312–13 (2010) (quoting Republic of\nAustria v. Altmann, 541 U.S. 677, 690 (2004)).\n\n Seeking to extract the State Department from this stew and\n“endorse and codify the restrictive theory of sovereign\nimmunity,” Congress passed the Foreign Sovereign\nImmunities Act in 1976. Id. at 313. Where the Act applies, it\ndoes three things relevant to this case: (1) as a general matter,\nit extends foreign sovereigns “immun[ity] from the jurisdiction\nof the courts of the United States,” 28 U.S.C. § 1604; (2) it\ncreates exceptions to the rule of immunity under various\ncircumstances, including cases based on certain “commercial\nactivit[ies]” of the sovereign, id. § 1605(a)(2); and (3) it grants\nfederal district courts subject-matter jurisdiction over certain\n“nonjury civil action[s]” against foreign states where they lack\nimmunity, id. § 1330(a).\n\n The key question here is whether the Act—including\nsection 1604’s grant of immunity—applies to civil and criminal\nproceedings alike. The Corporation tells us the Act does apply\n\f 5\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nhere, and thereby immunizes the Corporation from this\nsubpoena. The government responds that no part of the Act\napplies to criminal proceedings. “Immunity in criminal\nmatters,” the government assures us, “‘simply was not the\nparticular problem to which Congress was responding.’”\nAppellee’s Br. 18 (quoting Samantar, 560 U.S. at 323).\n\n The few circuits to consider this issue have reached\ndiffering conclusions, albeit in circumstances distinct from\nthose here. Compare Southway v. Central Bank of Nigeria, 198\nF.3d 1210, 1214 (10th Cir. 1999) (stating in context of a civil\nRacketeer Influenced and Corrupt Organizations Act (“RICO”)\nclaim that the Act does not apply in criminal proceedings), and\nUnited States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997)\n(same, in case involving head-of-state immunity claim), with\nKeller v. Central Bank of Nigeria, 277 F.3d 811, 820 (6th Cir.\n2002) (stating in context of civil RICO claim that the Act does\napply in criminal proceedings), partially abrogated by\nSamantar, 560 U.S. 305. Mindful of our obligation to avoid\nsweeping more broadly than we must to decide the case in front\nof us, we need not weigh in on this dispute. As we explain\nbelow, even assuming section 1604’s grant of immunity\napplies to criminal proceedings, the Corporation still lacks\nimmunity from this particular subpoena.\n\n III.\n\n Taking section 1604’s grant of immunity as a given, the\ngovernment must check three boxes for the contempt order to\nstand. First, there must be a valid grant of subject-matter\njurisdiction. Second, one of the Act’s exceptions to immunity\nmust apply. And third, the contempt sanctions must be a\npermissible remedy. According to the district court, the\ngovernment satisfies all three. We agree.\n\f 6\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n A.\n\n We start, as we must, with subject-matter jurisdiction. The\ndistrict court purported to exercise its inherent contempt power\nin aid of its criminal jurisdiction. See FG Hemisphere\nAssociates, LLC v. Democratic Republic of Congo, 637 F.3d\n373, 377 (D.C. Cir. 2011) (explaining that “federal courts enjoy\ninherent contempt power” that “runs with a court’s\njurisdiction”). The problem, according to the Corporation, is\nthat the Act eliminated all criminal subject-matter jurisdiction\nover foreign sovereigns, taking the contempt power with it. The\ntext of the relevant statutes, however, cuts against the\nCorporation’s position. Section 3231 of title 18 gives federal\ncourts original jurisdiction over “all offenses against the laws\nof the United States.” It is hard to imagine a clearer textual\ngrant of subject-matter jurisdiction. “All” means “all”; the\nprovision contains no carve-out for criminal process served on\nforeign defendants. And nothing in the Act’s text expressly\ndisplaces section 3231’s jurisdictional grant. True, section\n1604 grants immunity “from the jurisdiction of the courts,” but\nthat is no help to the Corporation. Linguistically, granting a\nparticular class of defendants “immunity” from jurisdiction has\nno effect on the scope of the underlying jurisdiction, any more\nthan a vaccine conferring immunity from a virus affects the\nbiological properties of the virus itself.\n\n To be sure, we have often referred to the Act’s immunity\nprovisions as affecting “subject matter jurisdiction.” See, e.g.,\nOdhiambo v. Republic of Kenya, 764 F.3d 31, 34 (D.C. Cir.\n2014). But in offering that characterization, we are not\nreferring to section 1604. The provision that usually gives the\nexceptions to immunity their jurisdictional status is the Act’s\nprovision conferring subject-matter jurisdiction over foreign\n\f 7\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nstates in civil actions, codified at 28 U.S.C. § 1330(a). That\nsection authorizes jurisdiction over certain nonjury civil\nactions “with respect to which the foreign state is not entitled\nto immunity.” Thus, establishing that an exception to immunity\napplies is one element of invoking subject-matter jurisdiction\nunder section 1330(a). See Verlinden, 461 U.S. at 489 (using\nsection 1330(a) to link the immunity exceptions to subject-\nmatter jurisdiction). This feature of section 1330(a) does not\ntransmute the entirely separate section 1604 into a provision\nabout subject-matter jurisdiction.\n\n With no textual provision purporting to eliminate section\n3231’s grant of subject-matter jurisdiction, the Corporation\ninstead focuses on section 1330(a). Although that provision by\nits terms merely confers jurisdiction over an unrelated set of\ncivil cases, the Corporation assures us that, as with an iceberg,\nmuch hides beneath the surface. Specifically, the Corporation\nreads the provision to silently and simultaneously revoke\njurisdiction over any case not falling within its terms, including\nany criminal proceeding.\n\n Ordinarily, that argument would be a tough sell. We are\nusually reluctant to view one statute as implying a limited\nrepeal of another where the two are capable of coexisting. See\nMorton v. Mancari, 417 U.S. 535, 550 (1974) (“In the absence\nof some affirmative showing of an intention to repeal, the only\npermissible justification for a repeal by implication is when the\nearlier and later statutes are irreconcilable.”). But the\nCorporation argues this usual rule has no force in the context\nof foreign sovereign immunities, citing the Supreme Court’s\nstatement, first appearing in Argentine Republic v. Amerada\nHess Shipping Corp., that the Act is “the sole basis for\nobtaining jurisdiction over a foreign state in our courts.” 488\nU.S. 428, 434 (1989).\n\f 8\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n Amerada Hess was a civil action. Id. at 431. The plaintiffs\nsought relief in tort from Argentina for having bombed their\nneutral ship in the course of Argentina’s war with the United\nKingdom over the Falkland, or Malvinas, Islands. Id. at 431–\n32. Because the Act pretty plainly granted Argentina immunity\nfor this essentially sovereign act, see id. at 439–43, the\nplaintiffs sought to circumvent that immunity by invoking\nsubject-matter jurisdiction under the Alien Tort Statute, 28\nU.S.C. § 1350, which unlike section 1330(a) makes no mention\nof the immunity exceptions. Rebuffing that effort, the Supreme\nCourt concluded that founding jurisdiction on the Alien Tort\nStatute—or, for that matter, any “other grant[] of subject-\nmatter jurisdiction in Title 28,” id. at 437 (emphasis added)—\nwould conflict with Congress’s choice “to deal\ncomprehensively with the subject of foreign sovereign\nimmunity in the” Act, id. at 438. To avoid that outcome, when\nit comes to foreign sovereigns, the Court held that section\n1330(a) precludes subject-matter jurisdiction under other, more\ngeneral grants, listing the Alien Tort Statute and a bevy of other\nexamples from the civil code in title 28. Id. at 437–39.\nSubsequent decisions from the Supreme Court and this court\nechoing that conclusion can all be traced back to Amerada\nHess. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 355\n(1993) (quoting Amerada Hess); Schermerhorn v. State of\nIsrael, 876 F.3d 351, 353 (D.C. Cir 2017) (same). Neither the\nSupreme Court nor this court has ever extended Amerada\nHess’s holding to a criminal proceeding.\n\n Uncritically applying the exclusivity rule from Amerada\nHess in the criminal context would yield the conclusion the\nCorporation prefers: no jurisdiction, as this grand jury\nproceeding is plainly not a “nonjury civil action” covered by\nsection 1330(a). But even the briefest peek under the hood of\n\f 9\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nAmerada Hess shows that the Supreme Court’s reasons for\nfinding section 1330(a) to be the exclusive basis for jurisdiction\nin the civil context have no place in criminal matters.\n\n Crucial to the Court’s logic in Amerada Hess was that the\nimmunity provision in section 1604 and the jurisdictional\nprovision in section 1330(a) would “work in tandem”—that is,\nthat immunity and jurisdiction would rise and fall together. 488\nU.S. at 434. In its opinion, the Court gave no hint at all that it\nintended to create a loophole where, in criminal cases clearly\ncovered by an exception to immunity, a district court would\nnevertheless lack subject-matter jurisdiction. On the contrary,\nthe Court was chiefly concerned that exercising jurisdiction\nunder other provisions in title 28 would provide an end run\naround the Act’s immunity provision. See Amerada Hess, 488\nU.S. at 436 (“From Congress’ decision to deny immunity to\nforeign states in [a certain] class of cases . . . , we draw the\nplain implication that immunity is granted in those cases\ninvolving alleged violations of international law that do not\ncome within one of the [Act’s] exceptions.”). There is no\ndanger of that evasion here: section 1604 tells us that, where\nthe Act applies, an action must fall within one of the listed\nexceptions and says nothing about excluding criminal actions.\n\n In fact, a reading that embraces absolute immunity in\ncriminal cases is much harder to reconcile with the Act’s\ncontext and purpose. The Act’s “[f]indings and declaration of\npurpose” section explains that Congress intended that states\nwould “not [be] immune from the jurisdiction of foreign courts\ninsofar as their commercial activities are concerned.” 28 U.S.C.\n§ 1602; accord Rubin 138 S. Ct. at 822 (Congress sought to\nhold foreign sovereigns “accountable, in certain circumstances,\nfor their actions”). As the Corporation admits, however, under\nits reading a foreign-sovereign-owned, purely commercial\n\f 10\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nenterprise operating within the United States could flagrantly\nviolate criminal laws and the U.S. government would be\npowerless to respond save through diplomatic pressure. What’s\nmore, such a reading would signal to even non-sovereign\ncriminals that if they act through such an enterprise, the records\nmight well be immune from criminal subpoenas.\n\n We doubt very much that Congress so dramatically gutted\nthe government’s crime-fighting toolkit. The notion is that\nmuch harder to swallow given how unsettled the common law\nof criminal immunities for a corporation owned by a foreign\nstate was in 1976 and remains today. See, e.g., In re\nInvestigation of World Arrangements, 13 F.R.D. 280, 291\n(D.D.C. 1952) (suggesting the law may not recognize\nimmunity for a “commercial venture, entirely divorced from\nany governmental function”); Andrew Dickinson, State\nImmunity & State-Owned Enterprises, 10 No. 2 Bus. L. Int’l\n97, 124–25 (2009) (positing that international law might allow\ncriminal prosecutions of “state-owned enterprises”). The lack\nof reported cases—before and after the Act—considering\ncriminal process served on sovereign-owned corporations only\nhighlights this uncertainty. From that paucity, the Corporation\nwould have us infer that such corporations are universally\nunderstood to possess absolute immunity, but that notion\nstrikes us as highly speculative. An equally likely explanation\nfor the absence of cases is that most companies served with\nsubpoenas simply comply without objection.\n\n Faced with such uncertainty, if Congress really intended\nto furnish a definitive answer to such a fraught question, one\nwould expect that answer to show up clearly in the Act’s text,\nor at least to have been the subject of some discussion during\nthe legislative process. Cf. MCI Telecommunications Corp. v.\nAmerican Telephone and Telegraph Co., 512 U.S. 218, 23\n\f 11\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n(1994) (holding Congress did not authorize “a fundamental\nrevision” of the law through a “subtle device”). Yet the “Act\nand its legislative history do not say a single word about\npossible criminal proceedings under the statute.” Joseph W.\nDellapenna, Suing Foreign Governments and Their\nCorporations 37 (2d ed. 2003). To the contrary, the relevant\nreports and hearings suggest Congress was focused, laser-like,\non the headaches born of private plaintiffs’ civil actions against\nforeign states. See, e.g., H.R. Rep. No. 94-1487, at 6 (1976)\n(identifying the Act’s purpose as “provid[ing] when and how\nparties can maintain a lawsuit against a foreign state or its\nentities in the courts of the United States”); Jurisdiction of U.S.\nCourts in Suits Against Foreign States: Hearings on H.R.\n11315 Before the Subcommittee on Administrative Law and\nGovernmental Relations of the House Committee on the\nJudiciary, 94th Cong. 24 (1976) (testimony of Monroe Leigh,\nLegal Adviser, Department of State) (testifying that the\n“question” the Act addressed was “[h]ow, and under what\ncircumstances, can private persons maintain a lawsuit against a\nforeign government or against a commercial enterprise owned\nby a foreign government”). There is, accordingly, scant\nevidence that Congress sought to resolve such a significant and\nunsettled issue.\n\n This case is thus unlike Amerada Hess. We do not read\ncase law with the same textual exactitude that we would bring\nto bear on an Act of Congress. See Illinois v. Lidster, 540 U.S.\n419, 424 (2004) (“[G]eneral language in judicial opinions”\nshould be read “as referring in context to circumstances similar\nto the circumstances then before the Court and not referring to\nquite different circumstances that the Court was not then\nconsidering.”). Given the relevant statutes and the Supreme\nCourt’s reasoning, this is a situation where the Court’s earlier\nstatements, “[t]hough seemingly comprehensive,” do “not\n\f 12\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nprovide a clear answer in this case.” Altmann, 541 U.S. at 694.\nSince section 3231 and the Act can coexist peacefully, we have\nno trouble concluding that the Act leaves intact the district\ncourt’s criminal jurisdiction to enforce this subpoena.\n\n The Corporation warns us that reaching this conclusion\nwill create a new circuit split, based on the Sixth Circuit’s\nopinion in Keller v. Central Bank of Nigeria. But we see no\nconflict. Assessing whether the Act leaves room for criminal\nprosecutions, the Keller court considered whether the Act itself\ncontains a specific exception for criminal cases. 277 F.3d at\n820 (noting the Act contains no general “exception for criminal\njurisdiction”). No party drew the court’s attention to the\nseparate grant of subject-matter jurisdiction in section 3231,\nand the Sixth Circuit has yet to squarely address whether that\nprovision can support jurisdiction consistent with the Act.\nAccordingly, confronted with the same issue we face here, the\nSixth Circuit would be free to reach the same conclusion we\ndo: that section 3231 can be invoked in conjunction with the\nAct.\n\n At oral argument, the Corporation offered a new theory:\nthat section 3231 never authorized subject-matter jurisdiction\nover criminal proceedings involving foreign sovereigns, even\nbefore the Act. Section 3231’s text, however, contradicts that\nargument, as it authorizes jurisdiction over “all offenses against\nthe laws of the United States.” The Corporation’s\nunderdeveloped position appears to rest on language from pre-\nAct judicial opinions stating that, under the former regime of\ncomplete immunity, a court lacked “jurisdiction” over a case\nagainst a foreign sovereign. See, e.g., Schooner Exchange, 11\nU.S. (7 Cranch) at 135 (warship owned by foreign sovereign is\n“exempt from the jurisdiction of the country”). But those\nopinions date from an era when the word “[j]urisdiction” had\n\f 13\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n“many, too many, meanings.” Steel Co. v. Citizens for a Better\nEnvironment, 523 U.S. 83, 90 (1998) (internal quotation marks\nomitted) (quoting United States v. Vanness, 85 F.3d 661, 663\nn.2 (D.C. Cir. 1996)). In those days, the word’s more “elastic”\nconception did not necessarily refer to statutory subject-matter\njurisdiction. United States v. Cotton, 535 U.S. 625, 630 (2002).\nAs the Supreme Court’s later cases have clarified, the doctrine\nof foreign sovereign immunity that pre-dated the Act\n“developed as a matter of common law,” not statutory\nconstruction. Samantar, 560 U.S. at 311. And we know that\ncourts did not think the doctrine affected statutory subject-\nmatter jurisdiction because the immunity could be waived at\nthe behest of the U.S. government. Id. at 311–12. Even at that\ntime, a congressional limit on subject-matter jurisdiction could\nnot have been waived. See Louisville & Nashville Railroad Co.\nv. Mottley, 211 U.S. 149, 152 (1908) (“Neither party has\nquestioned that jurisdiction, but it is the duty of this court to see\nto it that the jurisdiction of the circuit court, which is defined\nand limited by statute, is not exceeded.”). We therefore find no\nmerit to the Corporation’s contention that section 3231’s\nhistorical reach excluded foreign sovereigns.\n\n B.\n\n Subject-matter jurisdiction is, however, just the beginning.\nAs we have assumed that section 1604 applies, the Corporation\nis immune from the court’s criminal jurisdiction, as well as its\nassociated contempt power, unless one of the Act’s exceptions\napplies.\n\n Before diving into the substance of those exceptions, we\npause briefly to dispel the Corporation’s claim that section\n1605(a)’s exceptions are categorically unavailable in criminal\ncases. The text easily resolves this issue in the government’s\n\f 14\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nfavor. Section 1605(a)’s exceptions apply to “any case” that\nfalls within one of the listed provisions. That language—“any\ncase”—is notable because, as section 1330(a) demonstrates,\nCongress knows how to limit a provision to a “civil action”\nwhen it wants to. Congress’s choice to extend the section\n1605(a) exceptions to “any case,” instead of just “civil\nactions,” tells us that they are available in criminal\nproceedings.\n\n Moving to those exceptions, in its ex parte filing the\ngovernment steers us to the third clause of section 1605(a)(2).\nThat provision denies immunity in an “action . . . based . . .\nupon an act outside the territory of the United States in\nconnection with a commercial activity of the foreign state\nelsewhere [when] that act causes a direct effect in the United\nStates.”\n\n Ordinarily, the Corporation would bear the burden to\nestablish that the exception does not apply. See EIG Energy\nFund XIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344–\n45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the\nburden of establishing the affirmative defense of immunity,”\nincluding “‘proving that the plaintiff’s allegations do not bring\nits case within a statutory exception to immunity.’” (quoting\nPhoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40\n(D.C. Cir. 2000))). Here, however, the government relies\nprimarily on ex parte evidence unavailable to the Corporation.\nWe have repeatedly approved the use of such information when\n“necessary to ensure the secrecy of ongoing grand jury\nproceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059,\n1075 (D.C. Cir. 1998), and we do so again here. But where the\ngovernment uses ex parte evidence, we think the burden falls\non the government to establish that the exception applies, and\nwe will conduct a searching inquiry of the government’s\n\f 15\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nevidence and legal theories as a substitute for the adversarial\nprocess.\n\n Of course, at this stage, it would be putting the cart well\nbefore the horse to require the government to definitively prove\nthat the factual predicates for the exception exist. The usual\nrule is that the showing necessary to find an exception\napplicable travels with the burden on the merits—for example,\nin a motion to dismiss where a defendant challenges only the\n“legal sufficiency” of the complaint, the exception must merely\nbe plausibly pled. Phoenix Consulting, 216 F.3d at 40. We see\nno reason to depart from that rule here. As we have explained\nin the personal-jurisdiction context, any other rule would risk\n“‘invert[ing] the grand jury’s function’” by “‘requiring that\nbody to furnish answers to its questions before it could ask\nthem.’” In re Sealed Case, 832 F.2d 1268, 1274 (D.C. Cir.\n1987) (quoting In re Grand Jury Proceedings Harrisburg\nGrand Jury 79-1, 658 F .2d 211, 214 (3d Cir. 1981)). As with\npersonal jurisdiction, then, we ask whether the government has\nshown a “‘reasonable probability’” that the exception applies.\nSee id. (quoting Marc Rich & Co. v. United States, 707 F.2d\n663, 670 (2d Cir. 1983)).\n\n The government’s ex parte evidence satisfactorily makes\nthe necessary showing.\n\f 16\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n These facts establish a “reasonable probability” that\nsection 1605(a)(2) covers this subpoena.\n\n\n\n\n All that remains, then, is to assess whether this “action”—\nthat is, the subpoena—is “based upon” this act—\n . We think it is. In a typical case, to know\nwhat the action is “based upon,” we look to the “‘gravamen’”\nor “core” of the action—that is, “‘those elements . . . that, if\nproven, would entitle [a party] to relief.’” OBB\n\f 17\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nPersonenverkehr AG v. Sachs, 136 S. Ct. 390, 395–96 (first\nalteration in original) (quoting Saudi Arabia, 507 U.S. at 357).\nThe Supreme Court has offered some guidance on how to\nascertain that core, explaining that a court should “identify the\nparticular conduct on which the plaintiff’s action is based.” Id.\n(quoting Saudi Arabia, 507 U.S. at 356) (internal quotation\nmarks and alterations omitted). Just how we apply this test in\nthe context of a subpoena is not immediately obvious. The\n“gravamen” of a subpoena may be the mere fact that an entity\npossesses the documents in question. Alternatively, the\n“gravamen” may be related to the content of the records and\nwhy they may be relevant to the government’s investigation.\nIndeed, the correct approach may well vary with the facts of a\ngiven case. Here, however, we need not resolve that issue,\n\n\n\n\n Because the statutory elements for the exception are all\npresent, it makes no difference that\n\f 18\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n C.\n\n With subject-matter jurisdiction and the commercial\nactivity exception out of the way, we are left with the remedy.\nAs long as the Act permits monetary contempt sanctions,\nsovereign immunity offers the Corporation no refuge. Circuit\nprecedent provides a clear answer: as we held in FG\nHemisphere, “contempt sanctions against a foreign sovereign\nare available under the” Act. 637 F.3d at 379. In that case, we\nupheld a civil contempt order against the Democratic Republic\nof the Congo very similar to the one imposed here. Id. at 376\n(describing penalty of “$5,000 per week, doubling every four\nweeks until reaching a maximum of $80,000 per week”). We\ndid so by dividing “the question of a court’s power to impose\nsanctions from the question of a court’s ability to enforce that\njudgment through execution.” Id. at 377. We stick to that\npractice today, meaning the form of the district court’s\ncontempt order was proper. Whether and how that order can be\nenforced by execution is a question for a later day.\n\n IV.\n\n Alternatively, the Corporation invokes Federal Rule of\nCriminal Procedure 17(c)(2), asserting the subpoena is\n“unreasonable or oppressive”—and must therefore be\nquashed—because it would require the Corporation to violate\nCountry A’s domestic law. Adhering to Federal Rule of\n\f 19\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nCriminal Procedure 26.1, we treat “[i]ssues of foreign law” as\n“questions of law.” But, as the party who “relies on foreign\nlaw,” the Corporation “assumes the burden of showing that\nsuch law prevents compliance with the court’s order.” In re\nSealed Case, 825 F.2d 494, 498 (D.C. Cir. 1987) (per curiam).\nIts efforts to carry that burden fall short.\n\n The Corporation claims that complying with the subpoena\nwould run afoul of Country A’s law\n\n\n\n\n The text of the law favors the government.\n\f 20\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n The Corporation claims that such a reading is “absurd,”\n\n\n\n But that claim is belied by\n\n\n\n\n To combat this reading of the text, in the district court and\nat the briefing stage in this court, the Corporation relied on two\ndeclarations from its retained counsel.\n\n\n\n Pointing to the Supreme Court’s recent decision in\nAnimal Science Products, Inc. v. Hebei Welcome\nPharmaceutical Co., 138 S. Ct. 1865, 1873 (2018), the\nCorporation urges us to “carefully consider” these declarations.\n\f 21\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n Of course, we agree that the declarations warrant our\ncareful consideration. But we must also heed the Supreme\nCourt’s additional instruction in Animal Science Products to\nscrutinize, when evaluating a foreign state’s position regarding\nthe contents of its own law, “the statement’s clarity,\nthoroughness, and support; its context and purpose; . . . [and]\nthe role and authority of the entity or official offering the\nstatement.” Id. Those factors all counsel against accepting the\nCorporation’s position here. The declarations are quite cursory,\nand they contain no citations to authority or Country A’s case\nlaw. Moreover, the statements come from the retained counsel\nof a party with a direct stake in this litigation, and they were\nplainly prepared with this particular proceeding in mind. Under\nthose circumstances, our careful consideration of the\ndeclarations leads us to conclude that they shed little light on\nthe meaning of Country A’s law as it would be interpreted by\nthat nation’s courts.\n\n Following similar criticisms from the district court and the\ngovernment, and after briefing was complete in this court, the\nCorporation submitted a new declaration, this time from a\nregulatory body of Country A. The government urges us to\nstrike this filing as untimely. Although that position is not\nwithout merit, exercising an abundance of caution and giving\ndue deference to Country A’s sovereign status, we will\nconsider the filing.\n\n Unfortunately for the Corporation, however, the filing fails\nto cure the crucial deficiencies of the original declarations. The\nnew filing still fails to cite a single Country A court case\narticulating the Corporation’s preferred interpretation of the\nlaw.\n\f 22\n PUBLIC COPY – SEALED INFORMATION DELETED\n\n\n\n\n These omissions, combined with the fact that the\nstatement was clearly prepared in response to this litigation and\nat a very late hour, leave us unpersuaded that the statement\naccurately reflects how Country A’s courts would interpret the\nrelevant provision. Because the Corporation has failed to\nsatisfy its burden of showing that Country A’s law would\nprohibit complying with the subpoena, we agree with the\ndistrict court that enforcing the subpoena is neither\nunreasonable nor oppressive.\n\n V.\n\n Finally, the Corporation remains dissatisfied with this\ncourt’s ruling on its first appeal. It claims that, out of respect\nfor its foreign sovereign status, we should not have adhered to\nour usual rule requiring a contempt order before taking\nappellate jurisdiction over denial of a motion to quash. Even if\nwe had the power to undo a prior panel’s work in some\ncircumstances, we could not do so here. Because the district\ncourt has now held the Corporation in contempt, any opinion\nby us on whether that procedure was necessary would be\nentirely advisory. See Preiser v. Newkirk, 422 U.S. 395, 401\n(1975) (“[A] federal court has neither the power to render\nadvisory opinions nor ‘to decide questions that cannot affect\nthe rights of litigants in the case before them.’” (quoting North\n\f 23\n PUBLIC COPY – SEALED INFORMATION DELETED\n\nCarolina v. Rice, 404 U.S. 244, 246 (1971))). We therefore\ndismiss as moot this aspect of the Corporation’s appeal.\n\n VI.\n\n For the foregoing reasons, we deny the government’s\nmotion to strike and affirm the district court’s contempt order.\n\n So ordered.\n\f Senior Circuit Judge\n\n\n\n\n OBB Personenverkehr AG\nv. Sachs this\n\f In re Sealed\nCase abrogated on\nother grounds by Braswell v. United States\n\n\n Gucci Am., Inc. v. Weixing Li\n\n\n\n\n ex parte\n\n\n\n\n BNSF Ry. Co. v. Tyrrell\n\n\n\n\n Leibovitch v. Islamic Republic\nof Iran\n\f Sealed Case\n\n\n\n\n In re Grand Jury Subpoena No.\n7409\n\n\n\n\n any\n\n\n\n\n Odhiambo v. Republic of Kenya\n\f ex parte\n\n\n\n\n id\n\n\n\n\n Masias v. EPA\n Schneider v. Kissinger\n\n\n\n\nex parte\n\n\n ex parte\n\f Grand Jury\nSubpoena No. 7409\n[END_CASE]",
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7,333,606 | United States v. Rico Rodrigus WILLIAMS | United States v. Williams | 2019-01-08 | Criminal No. 09-0026 (PLF) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Friedman", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251526/", "author_raw": ""}]} | FRIEDMAN | FRIEDMAN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333606/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: United States v. Rico Rodrigus WILLIAMS\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,580,007 | Kornitzky Group, LLC v. Daniel Elwell | 2019-01-09 | 18-1160 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "Circuit Judge\u000f\u0003DQG\u0003('", "type": "010combined", "text": "\u0003\n United States Court of Appeals\u0003\n )25\u00037+(\u0003',675,&7\u00032)\u0003&2/80%,$\u0003&,5&8,7\u0003\n \u0003\n BBBBBBB\u0003\n\u0003\n ),/('\n\u0003-DQXDU\\\u0003\n\u000f\u0003\u0015\u0013\u0014\n\u0003\n\u0003\n 1R\u0011\u0003\u0014\u001b\u0010\u0014\u0014\u0019\u0013\u0003\n \u0003\n .251,7=.<\u0003*5283\u000f\u0003//&\u000f\u0003'\u0012%\u0012$\u0003$(52%($5,1*6\u000f\u0003//&\u000f\u0003\n 3(7,7,21(5\u0003\n \u0003\n Y\u0011\u0003\n \u0003\n '$1,(/\u0003.\u0011\u0003(/:(//\u000f\u0003$&7,1*\u0003$'0,1,675$725\u000f\u0003)('(5$/\u0003\n $9,$7,21\u0003$'0,1,675$7,21\u0003$1'\u00031$7,21$/\u0003\u0003\n 75$163257$7,21\u00036$)(7<\u0003%2$5'\u000f\u0003\n 5(6321'(176\u0003\n\u0003\n BBBBBBB\u0003\n\u0003\n 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25'(5('\u0003WKDW\u0003WKH\u0003PRWLRQ\u0003IRU\u0003VWD\\\u0003RI\u0003RUDO\u0003DUJXPHQW\u0003EH\u0003\nGHQLHG\u0011\u0003,W\u0003LV\u0003\u0003\n\u0003\n\u0003 )857+(5\u0003 25'(5('\u0003 WKDW\u0003 WKH\u0003 PRWLRQ\u0003 IRU\u0003 H[SHGLWHG\u0003\nFRQVLGHUDWLRQ\u0003EH\u0003GLVPLVVHG\u0003DV\u0003PRRW\u0011\u0003\n\u0003\n 3HU\u0003&XULDP\u0003\n\u0003\n\u0003 \u0003 \u0003 \u0003 \u0003 \u0003 \u0003 )25\u00037+(\u0003&2857\n\u0003\u0003\n\u0003 \u0003 \u0003 \u0003 \u0003 \u0003 \u0003 0DUN\u0003-\u0011\u0003/DQJHU\u000f\u0003&OHUN\u0003\n\u0003\n\u0003 \u0003 \u0003 \u0003 \u0003 \u0003 %<\n\u0003\u0012V\u0012\u0003.HQ\u00030HDGRZV\u000f\u0003-U\u0011\u0003\u0003\n\u0003 \u0003 \u0003 \u0003 \u0003 \u0003 \u0003 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DW\u0003 \u0016\u0011\u0003 )RU\u0003 FLYLO\u0003\nOLWLJDWLRQ\u000f\u0003 WKH\u0003 'HSDUWPHQW\u0003 LQVWUXFWV\u0003 JRYHUQPHQW\u0003 DWWRUQH\\V\u0003 WR\u0003\nUHTXHVW\u0003 WKDW\u0003 DFWLYH\u0003 FDVHV\u0003 EH\u0003 SRVWSRQHG\u0003 XQWLO\u0003 IXQGLQJ\u0003 LV\u0003\nDYDLODEOH\u0011\u0003 Id.\u0003 ,I\u0003 D\u0003 FRXUW\u0003 GHQLHV\u0003 WKH\u0003 UHTXHVW\u0003 DQG\u0003 DGKHUHV\u0003 WR\u0003 LWV\u0003\nH[LVWLQJ\u0003 VFKHGXOH\u000f\u0003 ³WKH\u0003 *RYHUQPHQW\u0003 ZLOO\u0003 FRPSO\\\u0003 ZLWK\u0003 WKH\u0003\nFRXUW¶V\u0003 RUGHU\u000f\u0003 ZKLFK\u0003 ZRXOG\u0003 FRQVWLWXWH\u0003 H[SUHVV\u0003 OHJDO\u0003\nDXWKRUL]DWLRQ\u0003IRU\u0003WKH\u0003DFWLYLW\\\u0003WR\u0003FRQWLQXH´\u0003ZLWKLQ\u0003WKH\u0003PHDQLQJ\u0003\nRI\u0003 \u0003 \u0014\u0016\u0017\u0015\u0011\u0003 Id.\u0003 7KDW\u0003 XQGHUVWDQGLQJ\u0003 RI\u0003 WKH\u0003 VWDWXWH\u0003 SUHVXPDEO\\\u0003\nJRYHUQV\u0003WKH\u0003)HGHUDO\u0003$YLDWLRQ\u0003$GPLQLVWUDWLRQ¶V\u0003SDUWLFLSDWLRQ\u0003LQ\u0003\nWKLV\u0003FDVH\u0011\u00033HWLWLRQHU\u000f\u0003IRU\u0003LWV\u0003SDUW\u000f\u0003ZLVKHV\u0003WR\u0003FRQWLQXH\u0003ZLWK\u0003RUDO\u0003\nDUJXPHQW\u0003 DV\u0003 VFKHGXOHG\u0011\u0003 7KHUH\u0003 LV\u0003 WKXV\u0003 QR\u0003 GLVSXWH\u0003 WKDW\u0003\nFRQGXFWLQJ\u0003DUJXPHQW\u0003DV\u0003VFKHGXOHG\u0003LV\u0003FRQVLVWHQW\u0003ZLWK\u0003\u0003\u0014\u0016\u0017\u0015\u0011\u0003\n\u0003\n\u0003 2XU\u0003GLVSRVLWLRQ\u0003RI\u0003WKLV\u0003PRWLRQ\u0003LV\u0003SHUIHFWO\\\u0003FRQVLVWHQW\u0003ZLWK\u0003\nWKLV\u0003FRXUW¶V\u0003DSSOLFDWLRQ\u0003RI\u0003\u0003\u0014\u0016\u0017\u0015\u0003LQ\u0003SULRU\u0003FDVHV\u0011\u0003)RU\u0003H[DPSOH\u000f\u0003\nZKHQ\u0003 IHGHUDO\u0003 DSSURSULDWLRQV\u0003 ODSVHG\u0003 LQ\u0003 \u0015\u0013\u0014\u0016\u000f\u0003 UHVXOWLQJ\u0003 LQ\u0003 D\u0003\n³VKXWGRZQ´\u0003 IURP\u0003 2FWREHU\u0003 \u0014\u0003 WR\u0003 2FWREHU\u0003 \u0014\u001a\u000f\u0003 \u0015\u0013\u0014\u0016\u000f\u0003 WKH\u0003 FRXUW\u0003\nUHFHLYHG\u0003*RYHUQPHQW\u0003PRWLRQV\u0003WR\u0003VWD\\\u0003RUDO\u0003DUJXPHQW\u0003LQ\u0003DW\u0003OHDVW\u0003\nVL[WHHQ\u0003 FDVHV\u0011\u0003 (YHU\\\u0003 RQH\u0003 RI\u0003 WKHVH\u0003 PRWLRQV\u0003 ZDV\u0003 GHQLHG\n\u0003 DQG\u0003\nHYHU\\\u0003WLPH\u000f\u0003WKH\u0003*RYHUQPHQW\u0003WKHQ\u0003SDUWLFLSDWHG\u0003LQ\u0003RUDO\u0003DUJXPHQW\u0011\u0003\nSee 2UGHU\u000f\u0003 Wilson v. Cox\u000f\u0003 1R\u0011\u0003 \u0014\u0015\u0010\u0018\u0013\u001a\u0013\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \u0014\u0019\u000f\u0003\n\n\u0003\n\n \u0015\u0003\n\u0015\u0013\u0014\u0016\n\n 2UGHU\u000f\u0003Am. Tort Reform Ass’n v. OSHA\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0014\u0015\u0015\n\u0003\n\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\n\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Janko v. Gates\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0018\u0013\u0014\u001a\u0003\n\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\n\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Mittleman v. Postal Regulatory\nComm’n\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0014\u0013\n\u0018\u0003\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\n\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Roane\nv. Leonhart\u000f\u0003 1R\u0011\u0003 \u0014\u0015\u0010\u0018\u0013\u0015\u0013\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \n\u000f\u0003 \u0015\u0013\u0014\u0016\n\n\u0003 2UGHU\u000f\u0003\nUnited States v. Regenerative Sciences, LLC\u000f\u0003 1R\u0011\u0003 \u0014\u0015\u0010\u0018\u0015\u0018\u0017\u0003\n\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\n\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Aamer v. Obama\u000f\u00031R\u0011\u0003\u0014\u0016\u0010\u0018\u0015\u0015\u0016\u0003\n\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\u001b\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Daimler Trucks N. Am. LLC v.\nEPA\u000f\u0003 1R\u0011\u0003 \u0014\u0015\u0010\u0014\u0017\u0016\u0016\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \u001b\u000f\u0003 \u0015\u0013\u0014\u0016\n\n\u0003 2UGHU\u000f\u0003 Howard\nR.L. Cook & Tommy Shaw Found. for Black Emps. of the\nLibrary of Cong. v. Billington\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0018\u0014\n\u0016\u0003\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\u001a\u000f\u0003\n\u0015\u0013\u0014\u0016\n\n\u0003 2UGHU\u000f\u0003 Nat. Res. Def. Council v. EPA\u000f\u0003 1R\u0011\u0003 \u0014\u0013\u0010\u0014\u0016\u001a\u0014\u0003\n\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\u0016\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Ctr. for Biological Diversity v.\nEPA\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0014\u0015\u0016\u001b\u0003\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\u0015\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Pub. Emps.\nfor Envtl. Responsibility v. U.S. Section, Int’l Boundary &\nWater Comm’n, U.S.-Mex.\u000f\u0003 1R\u0011\u0003 \u0014\u0015\u0010\u0018\u0014\u0018\u001b\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \u0015\u000f\u0003\n\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Sledge v. Fed. Bureau of Prisons\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0018\u0015\u001b\u001a\u0003\n\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\u0015\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Town of Barnstable, Mass. v.\nFAA\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0014\u0016\u0019\u0015\u0003\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\u0015\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u00032UGHU\u000f\u0003Adirondack\nMed. Ctr. v. Sebelius\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0018\u0016\u0019\u0019\u0003\n'\u0011&\u0011\u0003&LU\u0011\u00032FW\u0011\u0003\u0014\u000f\u0003\u0015\u0013\u0014\u0016\n\n\u0003\n2UGHU\u000f\u0003McKinley v. Fed. Hous. Fin. Agency\u000f\u00031R\u0011\u0003\u0014\u0015\u0010\u0018\u0015\u0019\u001a\u0003\n'\u0011&\u0011\u0003\n&LU\u0011\u00032FW\u0011\u0003\u0014\u000f\u0003\u0015\u0013\u0014\u0016\n\u0011\u0003\u0003\n\u0003\n\u0003 ,Q\u0003 HYHU\\\u0003 RQH\u0003 RI\u0003 WKHVH\u0003 PRWLRQV\u000f\u0003 *RYHUQPHQW\u0003 FRXQVHO\u0003\nVSHFLILFDOO\\\u0003FLWHG\u0003 WKH\u0003VWDWXWH\u0003 DW\u0003LVVXH\u0003KHUH\u000f\u0003\u0016\u0014\u00038\u00116\u0011&\u0011\u0003\u0003\u0014\u0016\u0017\u0015\u0011\u0003\nSee, e.g.\u000f\u0003 $SSHOOHHV¶\u0003 8QRSSRVHG\u0003 0RWLRQ\u0003 WR\u0003 3RVWSRQH\u0003 2UDO\u0003\n$UJXPHQW\u0003LQ\u0003/LJKW\u0003RI\u0003/DSVH\u0003RI\u0003$SSURSULDWLRQV\u0003DW\u0003\u0015\u000f\u0003Wilson v.\nCox\u000f\u0003 1R\u0011\u0003 \u0014\u0015\u0010\u0018\u0013\u001a\u0013\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \u0014\u0018\u000f\u0003 \u0015\u0013\u0014\u0016\n\n\u0003 8QRSSRVHG\u0003\n0RWLRQ\u0003 IRU\u0003 D\u0003 6WD\\\u0003 RI\u0003 2UDO\u0003 $UJXPHQW\u0003 LQ\u0003 /LJKW\u0003 RI\u0003 /DSVH\u0003 RI\u0003\n$SSURSULDWLRQV\u0003 DW\u0003 \u0014±\u0015\u000f\u0003 Ctr. for Biological Diversity v. 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U.S. Section,\nInt’l Boundary & Water Comm’n, U.S.-Mex.\u000f\u0003 1R\u0011\u0003 \u0014\u0015\u0010\u0018\u0014\u0018\u001b\u0003\n\n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \u0014\u000f\u0003 \u0015\u0013\u0014\u0016\n\u0011\u0003 6R\u0003 IDU\u0003 DV\u0003 ZH\u0003 KDYH\u0003 EHHQ\u0003 DEOH\u0003 WR\u0003\nGHWHUPLQH\u000f\u0003 QRW\u0003 D\u0003 VLQJOH\u0003 PRWLRQ\u0003 VHHNLQJ\u0003 D\u0003 VWD\\\u0003 ZDV\u0003 JUDQWHG\u0003\nGXULQJ\u0003WKH\u0003\u0015\u0013\u0014\u0016\u0003VKXWGRZQ\u0011\u0003\n\u0003\n\u0003 )LQDOO\\\u000f\u0003 GXULQJ\u0003 WKH\u0003 FXUUHQW\u0003 *RYHUQPHQW\u0003 VKXWGRZQ\u000f\u0003 RXU\u0003\nSUDFWLFH\u0003KDV\u0003EHHQ\u0003WKH\u0003VDPH\u0011\u0003See, e.g.\u000f\u00032UGHU\u000f\u0003Leader Commc’ns,\nInc. v. FAA\u000f\u0003 1R\u0011\u0003 \u0014\u001b\u0010\u0014\u0014\u0017\u001a\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 -DQ\u0011\u0003 \u001a\u000f\u0003 \u0015\u0013\u0014\n\n\u0003 \nGHQ\\LQJ\u0003\nPRWLRQ\u0003WR\u0003VWD\\\u0003EULHILQJ\n\n\u00032UGHU\u000f\u0003Figueroa v. Pompeo\u000f\u00031R\u0011\u0003\u0014\u001b\u0010\n\u0018\u0013\u0019\u0017\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 -DQ\u0011\u0003 \u0016\u000f\u0003 \u0015\u0013\u0014\n\n\u0003 \nGHQ\\LQJ\u0003 PRWLRQ\u0003 WR\u0003 VWD\\\u0003 RUDO\u0003\nDUJXPHQW\n\u0011\u0003\n\u0003\n\u0003 7KH\u0003GLVVHQW\u0003FLWHV\u0003DQ\u0003RUGHU\u0003LVVXHG\u0003LQ\u0003Estate of Klieman v.\nPalestinian Authority LQ\u0003 VXSSRUW\u0003 RI\u0003LWV\u0003 SRVLWLRQ\u0003UHJDUGLQJ\u0003 WKH\u0003\nPHDQLQJ\u0003RI\u0003\u0016\u0014\u00038\u00116\u0011&\u0011\u0003\u0003\u0014\u0016\u0017\u0015\u0011\u0003See\u00032UGHU\u000f\u0003Estate of Klieman v.\nPalestinian Auth.\u000f\u00031R\u0011\u0003\u0014\u0018\u0010\u001a\u0013\u0016\u0017\u0003\n'\u0011&\u0011\u0003&LU\u0011\u0003-DQ\u0011\u0003\u0016\u000f\u0003\u0015\u0013\u0014\n\n\u0011\u00037KH\u0003\nRUGHU\u0003LQ\u0003WKDW\u0003FDVH\u0003LV\u0003LQDSSRVLWH\u0011\u0003Klieman\u0003LV\u0003D\u0003FDVH\u0003LQ\u0003ZKLFK\u0003WKH\u0003\n*RYHUQPHQW\u0003 LV\u0003 QRW\u0003 D\u0003 SDUW\\\u0011\u0003 7KH\u0003 *RYHUQPHQW¶V\u0003 PRWLRQ\u0003 LQ\u0003\nKlieman\u0003ZDV\u0003WR\u0003H[WHQG\u0003WKH\u0003WLPH\u0003WR\u0003ILOH\u0003DQ\u0003DPLFXV\u0003EULHI\u0003WKDW\u0003WKH\u0003\nFRXUW\u0003 KDG\u0003LQYLWHG\u0003 sua sponte\u0011\u0003 7KH\u0003 *RYHUQPHQW\u0003 ZDV\u0003 QRW\u0003 HYHQ\u0003\nUHTXLUHG\u0003WR\u0003UHVSRQG\u0003WR\u0003WKH\u0003LQYLWDWLRQ\u0003\nDQG\u0003XQOLNH\u0003LQ\u0003WKLV\u0003FDVH\u000f\u0003\nQHLWKHU\u0003 RI\u0003 WKH\u0003 OLWLJDQWV\u0003 RSSRVHG\u0003 WKH\u0003 *RYHUQPHQW¶V\u0003 PRWLRQ\n\u0011\u0003\n+HQFH\u000f\u0003 WKH\u0003 Klieman\u0003 RUGHU\u0003 LV\u0003 QRW\u0003 D\u0003 SUHFHGHQW\u0003 IRU\u0003 KRZ\u0003 SDQHOV\u0003\nVKRXOG\u0003UHVSRQG\u0003WR\u0003PRWLRQV\u0003LQ\u0003FDVHV\u0003LQ\u0003ZKLFK\u0003WKH\u0003*RYHUQPHQW\u0003\nLV\u0003 D\u0003 SDUW\\\u0003 DQG\u0003 LV\u0003 FRPSHOOHG\u0003 E\\\u0003 WKH\u0003 FRXUW\u0003 WR\u0003 DGKHUH\u0003 WR\u0003 ILOLQJ\u0003\nUHTXLUHPHQWV\u0011\u00037KH\u0003UHTXHVW\u0003IRU\u0003DQ\u0003H[WHQVLRQ\u0003LQ\u0003D\u0003FDVH\u0003LQ\u0003ZKLFK\u0003\nWKH\u0003*RYHUQPHQW\u0003KDV\u0003EHHQ\u0003LQYLWHG\u0003WR\u0003ILOH\u0003DQ\u0003DPLFXV\u0003EULHI\u0003LV\u0003TXLWH\u0003\nGLIIHUHQW\u0003IURP\u0003D\u0003UHTXHVW\u0003LQ\u0003D\u0003FDVH\u0003LQ\u0003ZKLFK\u0003WKH\u0003*RYHUQPHQW\u0003LV\u0003D\u0003\nSDUW\\\u0011\u0003\n\n\n\n\n\u0003", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357260/"}, {"author": "Randolph, Senior Circuit Judge, dissenting", "type": "dissent", "text": "Randolph, Senior Circuit Judge, dissenting:\n\n The Constitution states that “no money shall be drawn from\nthe treasury, but in consequence of appropriations made by\nlaw.” U.S. Const. art. I, § 9, cl. 7. The treasury is also protected\nby the Anti-Deficiency Act, which prohibits employing federal\npersonnel in advance of appropriations except in emergencies,\nunless otherwise authorized by law.\n\n In light of the current government “shutdown,” the Federal\nAviation Administration moved for a stay of the oral argument\nscheduled for January 11, 2019. The FAA explained that under\n31 U.S.C. § 1342,1 its attorneys “are prohibited from working,\neven on a voluntary basis, except in very limited circumstances,\nincluding ‘emergencies involving the safety of human life or the\nprotection of property.’” Mot. Stay Oral Arg. 2 (quoting id.).\n\n What then is the rationale for denying the FAA’s motion?\n\n It cannot be that having oral argument in this case on\nJanuary 11, 2019, will avert some emergency within the\nmeaning of § 1342. An opinion of the Office of Legal Counsel\nconcludes, correctly I believe, that “the emergencies exception\napplies only to cases of threat to human life or property where\nthe threat can be reasonably said to be near at hand and\ndemanding of immediate response.” Government Operations in\nthe Event of a Lapse in Appropriations, 1995 WL 17216091, at\n*7 (O.L.C. Aug. 16, 1995). Holding oral argument January 11\nis not a necessary response to some imminent threat to human\nlife or property. (There may have been an emergency at the\n\n\n 1\n Section 1342 states, in relevant part: “An officer or employee\nof the United States Government or of the District of Columbia\ngovernment may not accept voluntary services for either government\nor employ personal services exceeding that authorized by law except\nfor emergencies involving the safety of human life or the protection\nof property.”\n\n 2\n\nadministrative stage of this case regarding the safety of\nequipment petitioner repaired, but that emergency passed when\nthe FAA revoked petitioner’s certificate.)\n\n Perhaps the idea is that the Judiciary is free to disregard the\nrestrictions of § 1342. But it seems to me that a federal court\nmay refuse to comply with this statute only if it is\nunconstitutional. Given the Appropriations Clause of the\nConstitution, the constitutionality of § 1342 is beyond doubt.\n\n Or perhaps the idea is that because § 1342 contains the\nclause “exceeding that authorized by law,” judges may\ncircumvent the statutory restriction by authorizing federal\nofficers and employees to show up in court. This, of course, is\nblatant bootstrapping. A court order requiring or authorizing a\ngovernment attorney’s presence may immunize the attorney\nfrom the sanctions for violating § 1342. See 31 U.S.C. § 1349.\nBut it does not relieve the court from its responsibility to comply\nwith the law. The “authorized-by-law” clause has been on the\nstatute books for nearly 200 years, and it has a settled meaning.\nAuthority for the Continuance of Government Functions During\na Temporary Lapse in Appropriations, 43 U.S. Op. Att’y Gen.\n293, 296 & n.5 (1981). It does not confer a license on the\nJudiciary. Instead, the clause requires legal authority for the\nobligation of public funds, either from appropriations or other\nrelevant statutes, or – in the case of Executive authority – from\nthe Constitution itself. Id. at 295–301.2\n\n\n 2\n The Department of Justice “construe[d] the ‘authorized by law’\nexception contained within 31 U.S.C. § [1342] as exempting from the\nprohibition enacted by the second clause of that section not only those\nobligations in advance of appropriations for which express or implied\nauthority may be found in the enactments of Congress, but also those\nobligations necessarily incident to presidential intiatives [sic]\nundertaken within his constitutional powers.” Id. at 301.\n\n 3\n\n The majority opinion, which itself contains no legal\nanalysis, relies on orders denying stays during shutdowns.3 But\nthose orders also contain no legal analysis. The majority’s\nargument must be that because we have denied these stay\nmotions in the past we should do so again. Charles Dickens had\na few words about this form of argumentation: “‘Whatever is is\nright’; an aphorism that would be as final as it is lazy, did it not\ninclude the troublesome consequence, that nothing that ever\nwas, was wrong.” Charles Dickens, A Tale of Two Cities 65\n(Signet Classics) (1859).\n\n\n\n\n 3\n On the other hand, the Administrative Office of United States\nCourts, in a press release on January 7, 2019, reported that federal\ncourts, in response to motions of the Department of Justice, “have\nissued orders suspending, postponing, or holding in abeyance civil\ncases in which the government is a party for a limited period, subject\nto further consideration, or until appropriated funds become\navailable.” Press Release, United States Courts, Judiciary Operating\non Limited Funds During Shutdown (Jan. 7, 2019). See also Estate of\nKlieman v. Palestinian Authority, No. 15-7034 (D.C. Cir. Jan. 3, 2019)\n(per curiam order), granting the Justice Department’s § 1342 motion\nfor a stay of a briefing deadline in light of the government shutdown.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357260/"}]} | 0 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580007/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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EPA\u000f\u0003\n1R\u0011\u0003 \u0014\u0015\u0010\u0014\u0015\u0016\u001b\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \u0014\u000f\u0003 \u0015\u0013\u0014\u0016\n\n\u0003 )HGHUDO\u0003 $SSHOOHH¶V\u0003\n0RWLRQ\u0003 WR\u0003 3RVWSRQH\u0003 2UDO\u0003 $UJXPHQW\u0003 LQ\u0003 /LJKW\u0003 RI\u0003 /DSVH\u0003 RI\u0003\n$SSURSULDWLRQV\u0003 DW\u0003 \u0014±\u0015\u000f\u0003 McKinley v. Fed. Hous. Fin. Agency\u000f\u0003\n1R\u0011\u0003 \u0014\u0015\u0010\u0018\u0015\u0019\u001a\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 2FW\u0011\u0003 \u0014\u000f\u0003 \u0015\u0013\u0014\u0016\n\n\u0003 $SSHOOHH¶V\u0003 0RWLRQ\u0003 WR\u0003\n3RVWSRQH\u00032UDO\u0003$UJXPHQW\u0003LQ\u0003/LJKW\u0003RI\u0003/DSVH\u0003RI\u0003$SSURSULDWLRQV\u0003\n\n\u0003\n\n \u0016\u0003\nDW\u0003 \u0014±\u0015\u000f\u0003 Pub. Emps. for Envtl. Responsibility v. 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FAA\u000f\u0003 1R\u0011\u0003 \u0014\u001b\u0010\u0014\u0014\u0017\u001a\u0003 \n'\u0011&\u0011\u0003 &LU\u0011\u0003 -DQ\u0011\u0003 \u001a\u000f\u0003 \u0015\u0013\u0014\n\n\u0003 \nGHQ\\LQJ\u0003\nPRWLRQ\u0003WR\u0003VWD\\\u0003EULHILQJ\n\n\u00032UGHU\u000f\u0003Figueroa v. 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7,333,446 | Donald L. MOORE v. UNITED STATES DEPARTMENT OF STATE | Moore v. U.S. Dep't of State | 2019-01-09 | No. 17-cv-1531 (DLF) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251365/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333446/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Donald L. MOORE v. UNITED STATES DEPARTMENT OF STATE\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,333,867 | DEMOCRACY FORWARD FOUNDATION v. The WHITE HOUSE OFFICE OF AMERICAN INNOVATION | Democracy Forward Found. v. White House Office of Am. Innovation | 2019-01-09 | Civil Action No. 18-349 (CKK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251787/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333867/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: DEMOCRACY FORWARD FOUNDATION v. The WHITE HOUSE OFFICE OF AMERICAN INNOVATION\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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8,443,831 | KORNITZKY GROUP, LLC, D/B/A AeroBearings, LLC v. Daniel K. ELWELL, Acting Administrator, Federal Aviation Administration and National Transportation Safety Board | Kornitzky Grp., LLC v. Elwell | 2019-01-09 | No. 18-1160 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415257/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443831/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: KORNITZKY GROUP, LLC, D/B/A AeroBearings, LLC v. Daniel K. ELWELL, Acting Administrator, Federal Aviation Administration and National Transportation Safety Board\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,333,520 | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. Andrew WHEELER, Acting Administrator, U.S. Environmental Protection Agency | Citizens for Responsibility & Ethics in Wash. v. Wheeler | 2019-01-10 | Civil Action No. 18-406 (JEB) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Boasberg", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251439/", "author_raw": ""}]} | BOASBERG | BOASBERG | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333520/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. Andrew WHEELER, Acting Administrator, U.S. Environmental Protection Agency\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,333,697 | United States v. Jamal A. ADAMS, a/k/a Ishmeal Heru-Bey | United States v. Adams | 2019-01-10 | Criminal Action No. 15-44 (JEB) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251617/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333697/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: United States v. Jamal A. ADAMS, a/k/a Ishmeal Heru-Bey\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,333,868 | Thomas MONTGOMERY and Beth Montgomery v. INTERNAL REVENUE SERVICE | Montgomery v. Internal Revenue Serv. | 2019-01-10 | Civil Action No. 17-918 (JEB) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251788/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333868/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Thomas MONTGOMERY and Beth Montgomery v. INTERNAL REVENUE SERVICE\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,333,605 | Robyn SLACK v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY | Slack v. Wash. Metro. Area Transit Auth. | 2019-01-11 | Case No. 1:16-cv-00130 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251525/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333605/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Robyn SLACK v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,333,698 | Jason GOOLSBY v. DISTRICT OF COLUMBIA | Goolsby v. Dist. of Columbia | 2019-01-11 | Case No. 16-cv-2029 (CRC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Cooper", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251618/", "author_raw": ""}]} | COOPER | COOPER | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333698/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Jason GOOLSBY v. DISTRICT OF COLUMBIA\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,333,864 | EN FUEGO TOBACCO SHOP LLC v. UNITED STATES FOOD AND DRUG ADMINISTRATION | En Fuego Tobacco Shop LLC v. U.S. Food & Drug Admin. | 2019-01-11 | Case No. 18-cv-01797 (APM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Introduction, Mehta", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251784/", "author_raw": ""}]} | MEHTA | MEHTA | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333864/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: EN FUEGO TOBACCO SHOP LLC v. UNITED STATES FOOD AND DRUG ADMINISTRATION\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,581,337 | PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Et Al., Appellants v. UNITED STATES DEPARTMENT OF AGRICULTURE and Animal and Plant Health Inspection Service, Appellees | People for the Ethical Treatment Animals v. U.S. Dep't of Agric. | 2019-01-14 | 18-5074 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Katsas, Per Curiam", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887852/", "author_raw": "PER CURIAM"}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887853/", "author_raw": ""}, {"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n Filed: January 14, 2019\n\n No. 18-5074\n\n PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, ET AL.,\n APPELLANTS\n\n v.\n\nUNITED STATES DEPARTMENT OF AGRICULTURE AND ANIMAL\n AND PLANT HEALTH INSPECTION SERVICE,\n APPELLEES\n\n\n On Motion to Stay Oral Argument\n in Light of the Lapse of Appropriations\n\n\n Before: GARLAND, Chief Judge, KATSAS*, Circuit\n Judge, and WILLIAMS, Senior Circuit Judge.\n\n ORDER\n\n Upon consideration of the motion of appellee to stay oral\nargument in light of the lapse of appropriations, it is\n\n 2\n ORDERED that the motion be denied. This case remains\nscheduled for oral argument on January 25, 2019.\n\n Per Curiam\n\n FOR THE COURT:\n Mark J. Langer, Clerk\n\n BY: /s/\n Michael C. McGrail\n Deputy Clerk", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358590/", "author_raw": "PER CURIAM"}, {"author": "* A statement by Circuit Judge Katsas, concurring", "type": "concurrence", "text": "* A statement by Circuit Judge Katsas, concurring in the denial\nof the motion to stay oral argument, is attached.\n\n 3", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358590/", "author_raw": "* A statement by Circuit Judge Katsas, concurring"}, {"author": "KATSAS, Circuit Judge, concurring", "type": "concurrence", "text": "KATSAS, Circuit Judge, concurring:\n\n The Antideficiency Act states that officers and employees\nof the United States may not “employ personal services\nexceeding that authorized by law,” except for “emergencies\ninvolving the safety of human life or the protection of\nproperty.” 31 U.S.C. § 1342. Given the current lapse of\nappropriations, this provision would seem to bar the Acting\nAttorney General from dispatching Department of Justice\nattorneys to defend this appeal. For one thing, the appeal\nobviously presents no emergency involving human safety or\nproperty; to the contrary, it involves only a question whether\nthe Department of Agriculture must release certain information\nthat the plaintiffs desire for their “research and animal\nprotection advocacy.” Brief for Appellants at 2, People for the\nEthical Treatment of Animals v. USDA, No. 18-5074 (D.C. Cir.\nNov. 15, 2018). Likewise, without any current appropriation\nto fund DOJ activities, any “personal services” employed to\ndefend the appeal would seem to be not “authorized by law.”\nThe counter-argument must be that activity not otherwise\n“authorized by law” becomes so when this Court orders it. The\nposition appears troubling, for a judicial decree resting on that\npremise—“la loi, c’est nous”—seems little better than an\nexecutive decree resting on “l’état, c’est moi.” See Kornitzky\nGrp., LLC v. Elwell, No. 18-1160, 2019 WL 138710, at *2–3\n(D.C. Cir. Jan. 9, 2019) (Randolph, J., dissenting).\n\n Despite these misgivings, I join my colleagues’ decision\nto deny the government’s request to stay the upcoming oral\nargument in this case. I do so for two reasons: First, a panel\nof this Court recently denied a stay of oral argument in\nKornitzky, and two judges joined a published concurrence\nrejecting Judge Randolph’s position. The stay motion in this\ncase acknowledged our Kornitzky order but presented no\nreason for disregarding its arguable precedential effect.\n\n 4\nSecond, the stay motion presented no significant argument\nregarding the “authorized by law” issue noted above. The\nscope of the Antideficiency Act is not a question implicating\nour subject-matter jurisdiction, so we need not consider\narguments not fairly raised by the parties. Accordingly, we\nshould deny the government’s stay motion in this case, but I\nremain open in future cases to arguments about whether a\njudicial order can supply the legal authorization required by the\nAntideficiency Act, as well as arguments about whether that\nissue remains open in this circuit after Kornitzky. 1\n\n\n\n\n1\n Likewise, I express no view on what it means to “employ personal\nservices” under section 1342—an issue raised neither here nor in\nKornitzky.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358590/", "author_raw": "KATSAS, Circuit Judge, concurring"}]} | KATSAS | KATSAS | 0 | {} | 5 | 0 | 0 | 3 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581337/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, Et Al., Appellants v. UNITED STATES DEPARTMENT OF AGRICULTURE and Animal and Plant Health Inspection Service, Appellees\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n Filed: January 14, 2019\n\n No. 18-5074\n\n PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, ET AL.,\n APPELLANTS\n\n v.\n\nUNITED STATES DEPARTMENT OF AGRICULTURE AND ANIMAL\n AND PLANT HEALTH INSPECTION SERVICE,\n APPELLEES\n\n\n On Motion to Stay Oral Argument\n in Light of the Lapse of Appropriations\n\n\n Before: GARLAND, Chief Judge, KATSAS*, Circuit\n Judge, and WILLIAMS, Senior Circuit Judge.\n\n ORDER\n\n Upon consideration of the motion of appellee to stay oral\nargument in light of the lapse of appropriations, it is\n\n 2\n ORDERED that the motion be denied. This case remains\nscheduled for oral argument on January 25, 2019.\n\n Per Curiam\n\n FOR THE COURT:\n Mark J. Langer, Clerk\n\n BY: /s/\n Michael C. McGrail\n Deputy Clerk\n[END_CASE]",
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7,334,159 | NATIONAL WOMEN'S POLITICAL CAUCUS, INC. v. METROPOLITAN LOUISVILLE WOMEN'S POLITICAL CAUCUS, INC. | Nat'l Women's Political Caucus, Inc. v. Metropolitan Louisville Women's Political Caucus, Inc. | 2019-01-14 | Case No. 18-cv-1417 (CRC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252079/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334159/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: NATIONAL WOMEN'S POLITICAL CAUCUS, INC. v. METROPOLITAN LOUISVILLE WOMEN'S POLITICAL CAUCUS, INC.\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,161 | Beth GOUSE v. DISTRICT OF COLUMBIA | Gouse v. Dist. of Columbia | 2019-01-14 | Civil Action No. 17-2566 (RDM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252081/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334161/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: Beth GOUSE v. DISTRICT OF COLUMBIA\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,581,516 | SAN DIEGO GAS & ELECTRIC COMPANY, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Pacific Gas and Electric Company, Et Al., Intervenors | San Diego Gas & Elec. Co. v. Fed. Energy Regulatory Comm'n | 2019-01-15 | 16-1433 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Pillard, Randolph", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge PILLARD", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 15, 2018 Decided January 15, 2019\n\n No. 16-1433\n\n SAN DIEGO GAS & ELECTRIC COMPANY,\n PETITIONER\n\n v.\n\n FEDERAL ENERGY REGULATORY COMMISSION,\n RESPONDENT\n\n PACIFIC GAS AND ELECTRIC COMPANY, ET AL.,\n INTERVENORS\n\n\n On Petition for Review of Orders of the\n Federal Energy Regulatory Commission\n\n\n Kevin King argued the cause for petitioner. With him on\nthe briefs were James R. Dean Jr., Mark L. Perlis, and\nJonathan J. Newlander.\n\n Rebecca A. Furman and Keith T. Sampson were on the\nbrief for intervenors Southern California Edison Company, et\nal., supporting petitioner.\n\n Carol J. Banta, Attorney, Federal Energy Regulatory\nCommission, argued the cause for respondent. On the brief\n\n 2\nwere David L. Morenoff, General Counsel, Robert H. Solomon,\nSolicitor, and Ross R. Fulton, Attorney.\n\n Bonnie S. Blair, Margaret E. McNaul, Rebecca L. Shelton,\nLisa S. Gast, Peter J. Scanlon, Michael Postar, and Bhaveeta\nK. Mody were on the joint brief for intervenors Cities of\nAnaheim, Azusa, Banning, Colton, Pasadena, and Riverside,\nCalifornia, et al., supporting respondent.\n\n Before: ROGERS and PILLARD, Circuit Judges, and\nRANDOLPH, Senior Circuit Judge.\n\n Opinion for the Court filed by Circuit Judge PILLARD.\n\n Dissenting opinion filed by Senior Circuit Judge\nRANDOLPH.\n\n PILLARD, Circuit Judge: Petitioner San Diego Gas &\nElectric Company (SDG&E) seeks review of a Federal Energy\nRegulatory Commission (FERC or Commission) declaratory\norder applying FERC’s cancelled or abandoned electricity\ntransmission facilities incentive, 18 C.F.R. § 35.35(d)(1)(vi)\n(Abandonment Incentive), only prospectively, to investment\nthat had yet to occur. FERC grants the Abandonment Incentive\nto qualifying transmission infrastructure projects to facilitate\nfinancing by assuring that ratepayers may be charged for the\nproject if it is abandoned for reasons beyond the utility’s\ncontrol. Id. SDG&E’s application acknowledged that the\nutility had already obtained needed investment and proceeded\nwith the project for four years “without assurance of cost\nrecovery for these development costs.” Pet. for Declaratory\nOrder of San Diego Gas & Electric Company 16 (Sept. 23,\n2015), Joint App’x (J.A.) 44. Reasoning that the role of the\nAbandonment Incentive is to facilitate investment by hedging\nabandonment risk, rather than to reward investments that\n\n 3\nwould happen in any event, the Commission found that\nSDG&E had failed to establish the requisite nexus between the\nAbandonment Incentive and costs it already incurred before it\nobtained the declaratory order. SDG&E claims that the order’s\nlimitation to future costs is contrary to the Abandonment\nIncentive’s terms and arbitrary and capricious. For the reasons\nthat follow, we deny the petition.\n\n I.\n\n A. Regulatory Context\n\n In an effort to bolster investment in “reliable and\neconomically efficient” energy transmission infrastructure,\nCongress in 2005 amended the Federal Power Act (FPA), 16\nU.S.C. § 792 et seq., to require FERC to promulgate a rule to\nestablish “incentive-based” rate treatments in order to\n“promot[e] capital investment” in projects to upgrade the\nelectricity grid. Id. § 824s(a), (b)(1); see Energy Policy Act of\n2005, Pub. L. No. 109-58, § 1241, 119 Stat. 961 (2005)\n(codified as amended at 16 U.S.C. § 824s). Congress’s express\npurpose in calling for such a rule was to “benefit[] consumers\nby ensuring reliability and reducing the cost of delivered power\nby reducing transmission congestion.” 16 U.S.C. § 824s(a). In\nCongress’s view, because such a rate-treatment rule would\nenable needed upgrades to infrastructure on which reliable and\nefficient electric service depends, it would ultimately benefit\nconsumers, even as it also cost them. See id. Any rate FERC\napproves under the rule, Congress stipulated, must be “just and\nreasonable and not unduly discriminatory or preferential.” Id.\n§ 824s(d).\n\n The Commission adopted its Incentive Rule the following\nyear, see Transmission Infrastructure Investment (Incentive\nRule), 18 C.F.R. § 35.35 (2006), and refined it through two\n\n 4\nrehearing orders and a policy statement, see Promoting\nTransmission Investment Through Pricing Reform, Order No.\n679, 116 FERC ¶ 61,057 (2006), order on reh’g, Order No.\n679-A, 117 FERC ¶ 61,345 (2006), order on reh’g, Order No.\n679-B, 119 FERC ¶ 61,062 (2007); Promoting Transmission\nInvestment Through Pricing Reform, 141 FERC ¶ 61,129\n(2012) (Policy Statement).\n\n The Incentive Rule establishes eight categories of\nincentive-based rate treatments for public utilities. 18 C.F.R. §\n35.35(d). Three prerequisites must be met by each applicant\nseeking any of those treatments:\n\n The applicant must demonstrate [1] that the facilities\n for which it seeks incentives either ensure reliability or\n reduce the cost of delivered power by reducing\n transmission congestion consistent with the\n requirements of section 219 [of the Federal Power\n Act], [2] that the total package of incentives is tailored\n to address the demonstrable risks or challenges faced\n by the applicant in undertaking the project, and [3] that\n resulting rates are just and reasonable.\n\nId. The Rule invites an applicant to request a “package of\nincentives . . . tailored” to its particular needs. Id. In so doing,\nthe applicant must make its case for including in its rates each\nof the incentive-based rate treatments it requests. The Rule\ndefines “incentive-based rate treatment” to mean any of the\nfollowing:\n\n (i) A rate of return on equity sufficient to attract\n new investment in transmission facilities;\n\n (ii) 100 percent of prudently incurred Construction\n Work in Progress (CWIP) in rate base;\n\n 5\n\n (iii) Recovery of prudently incurred pre-commercial\n operations costs;\n\n (iv) Hypothetical capital structure;\n\n (v) Accelerated depreciation used for rate recovery;\n\n (vi) Recovery of 100 percent of prudently incurred\n costs of transmission facilities that are cancelled\n or abandoned due to factors beyond the control\n of the public utility;\n\n (vii) Deferred cost recovery; and\n\n (viii) Any other incentives approved by the\n Commission . . . that are determined to be just\n and reasonable and not unduly discriminatory or\n preferential.\n\nId. § 35.35(d)(1). The Commission authorized each of these\nincentives as a means to “encourage new infrastructure,” but\ncautioned that they should be applied in a case-specific manner,\nonly where appropriate, to avoid “increasing rates in a manner\nthat has no correlation to encouraging new investment.” Order\nNo. 679, 116 FERC ¶ 61,057 at P6.\n\n The incentive at issue here—the cancelled or abandoned\ntransmission facilities incentive, 18 C.F.R. § 35.35(d)(1)(vi)\n(Abandonment Incentive)—encourages new investment in\ntransmission infrastructure projects by offsetting some of the\nlargest and least predictable downside investment risks of these\nprojects, “such as generation developers’ decisions to develop\nor terminate the development of potential resources or\ndifficulty obtaining state or local siting approvals.” Order No.\n\n 6\n679, 116 FERC ¶ 61,057 at P155. By assuring recovery of\ncosts of projects abandoned for reasons beyond their\ndevelopers’ control, the Abandonment Incentive “provid[es]\ncompanies with more certainty during the pre-construction and\nconstruction periods,” Policy Statement, 141 FERC ¶ 61,129 at\nP14, “thereby facilitating investment in these projects,” Order\nNo. 679, 116 FERC ¶ 61,057 at P155. An applicant for the\nAbandonment Incentive must show that it faces the kinds of\nknown but uncontrollable cancellation risks that, without the\nincentive, could impair the applicant’s ability to attract\ninvestment to the project, or raise the utility’s—and, in turn,\nratepayers’—cost of such investment. The Commission\nexplained that it would evaluate applications for this incentive\non a “case-by-case basis.” Order No. 679, 116 FERC ¶ 61,057\nat P164.\n\n The Commission developed the Abandonment Incentive\nagainst the backdrop of its standard, burden-sharing treatment\nof costs of abandoned transmission infrastructure projects. An\norder the Commission issued in 1988 authorized utilities to\nsplit the costs of cancelled projects 50-50 with their consumers\nthrough rate increases, provided the utilities demonstrated the\nneed to recover the investment, and that the costs at issue were\nprudently incurred. See New Eng. Power Co., Op. No. 295, 42\nFERC ¶ 61,016 (1988); see also New Eng. Power Co., Op. No.\n49, 8 FERC ¶ 61,054 (1979). Under the new Abandonment\nIncentive provision of the Incentive Rule, utilities may, on a\nshowing of a nexus between exposure to risk from project\nabandonment and difficulty or costs of attracting needed\ninvestment, obtain an order of eligibility to recover “100\npercent of prudently incurred costs of transmission facilities\nthat are cancelled or abandoned due to factors beyond the\ncontrol of the public utility.” 18 C.F.R. § 35.35(d)(1)(vi); see\n16 U.S.C. § 824s.\n\n 7\n The Abandonment Incentive is just one of an open-ended\nset of incentive rate treatments the new Incentive Rule\nauthorizes, entitlement to which depends on an order of\napproval from the Commission. Each utility that proposes to\nenhance transmission infrastructure may apply for a package of\nincentives customized to its particular circumstances. The\nCommission then determines whether and how the requested\nincentives are warranted before it approves any corresponding\nrate authority.\n\n Transmission upgrades vary in size, complexity, and the\nrisks and challenges they face, so no one-size-fit-all package of\nincentives is—or could be—secured by the Rule itself. The\nIncentive Rule “does not grant incentive-based rate treatments\nor authorize any entity to recover incentives in its rates,” but\nonly “informs potential applicants of incentives that the\nCommission is willing to allow when justified.” Order No.\n679, 116 FERC ¶ 61,057 at P20. The seven specified\nincentives are themselves partially overlapping and context-\nspecific. And the eighth category—a catchall authorization of\n“[a]ny other incentives approved by the Commission,” 18\nC.F.R. § 35.35(d)(1)(viii)—underscores the Rule’s\ncontemplation of case-by-case applications based on\nappropriate showings, and that entitlement to an incentive rate\ntreatment depends on an order authorizing it.\n\n All of the incentives share the common overall objective\nof facilitating improvements to transmission infrastructure, but\nthey do so in a range of ways. Two of the incentives encourage\ninvestment in infrastructure projects by providing a way to ease\na developer’s cash flow in advance of the project coming on\nline, which in turn can improve “the overall financial health of\na company and its ability to attract capital at reasonable prices.”\nSee Order No. 679, 116 FERC ¶ 61,057 at P103. The CWIP\nincentive, see 18 C.F.R. § 35.35(d)(1)(ii), for example, “allows\n\n 8\nrecovery of a return on construction costs during the\nconstruction period rather than delaying cost recovery until the\nplant is placed into service.” Policy Statement, 141 FERC ¶\n61,129 at P12. Similarly, the pre-commercial operations costs\nincentive, 18 C.F.R. § 35.35(d)(1)(iii), allows utilities to\nrecover other early project costs incurred before the facility is\nup and running, such as expenditures for “preliminary surveys,\nplans and investigations, made for the purpose of determining\nthe feasibility of utility projects and costs of studies and\nanalyses mandated by regulatory bodies related to the plant in\nservice.” See Order No. 679, 116 FERC ¶ 61,057 at P122 n.82.\n\n Additional incentives can address the timing of cost\nrecovery after a project is in use. The Commission may\nauthorize a utility to accelerate depreciation in order to recover\ncosts more quickly than over the life of the project—effectively\ncharging ratepayers in the near term for facilities that will be in\nuse far into the future. See 18 C.F.R. § 35.35(d)(1)(v); Order\nNo. 679, 116 FERC ¶ 61,057 at P146. Or the Commission may\nallow a utility to defer cost recovery where, for example, it is\nunder a retail rate freeze that would prevent full recovery in the\nordinary course, id. § 35.35(d)(1)(vii)—authority the\nCommission has committed to exercise consistently with state\nauthority over retail ratemaking, see Order No. 679, 116 FERC\n¶ 61,057 at P177.\n\n An application to qualify for any of the rate treatments\nauthorized by the Incentive Rule must meet the Rule’s “nexus\ntest” by demonstrating that “the total package of incentives”\nthe utility seeks is “tailored to address the demonstrable risks\nor challenges faced by the applicant in undertaking the\nproject.” 18 C.F.R. § 35.35(d). A utility must, in other words,\nshow a link between each requested incentive and the utility’s\nability to address the project’s risks and hurdles that correspond\nto that incentive. See Order No. 679, 116 FERC ¶ 61,057 at\n\n 9\nP26. The Commission underscored that, because incentives\nmust be “rationally tailored” to the risks presented by an\ninvestment, “[n]ot every incentive will be available for every\nnew investment.” Id. The requirement of a demonstrated,\ncase-specific nexus tethers each authorized incentive rate\nincrease to a determination that granting that incentive in a\ngiven case actually serves Congress’s objective of benefiting\nconsumers. To that end, the Commission assured commenters\non the Incentive Rule that it would scrutinize incentive\napplications to make sure every authorized rate treatment was\ntailored to its relevant objective.\n\n The Commission identified two ways for utilities to apply\nfor incentive-based rate treatments. Under the one-step option,\na utility may seek a specified increase in its rates under Section\n205 of the FPA. See Order No. 679, 116 FERC ¶ 61,057 at\nP79. Under the two-step option, a utility may petition for a\ndeclaratory order establishing its eligibility to increase rates\npursuant to an applicable incentive and later, armed with the\ndeclaratory order, seek the Commission’s approval for a\nspecific rate increase under Section 205. See 16 U.S.C. § 824d;\nOrder No. 679, 116 FERC ¶ 61,057 at PP76-77, 166. A\nutility’s choice between these procedural options is likely\ninfluenced by the types of incentives it seeks. The Commission\nnoted that the option to apply for a declaratory order well in\nadvance of a rate petition would be particularly useful for\nutilities “prior to commencing siting, permitting and\nconstruction activities because such orders facilitate financing\nand investment in new facilities.” Order No. 679, 116 FERC ¶\n61,057 at P77.\n\n The Commission takes the position that the Abandonment\nIncentive supports recovery of 100 percent of costs prudently\nincurred only insofar as those costs were incurred after the\neffective date of the order approving the utility’s application.\n\n 10\nSee PJM Interconnection, LLC, 142 FERC ¶ 61,156 (2013)\n(“PJM II”). In a series of orders, it has similarly limited\nrecovery of the incentive to prospective costs. See, e.g., Pac.\nGas & Elec. Co., 163 FERC ¶ 61,187 at P14 (2018); Citizens\nEnergy Corp., 162 FERC ¶ 61,161 at P26 (2018); S. Cal.\nEdison Co., 161 FERC ¶ 61,107 at P44 (2017); Republic\nTransmission, LLC, 161 FERC ¶ 61,036 at P29 (2017); DCR\nTransmission, LLC, 153 FERC ¶ 61,295 at P42 (2015). As\nFERC frames its approach, “the date an order is issued under\nOrder No. 679 reflects the separating point between the period\nin which an applicant is entitled to the full Abandoned Plant\nIncentive authorized under Section 219 and 50 percent\nrecovery under Opinion No. 295’s cost-sharing policy.” Pac.\nGas & Elec. Co., 163 FERC ¶ 61,187 at P14.\n\n B. The Declaratory Order\n\n SDG&E is a public utility that provides energy services in\nCalifornia. It brings electricity to approximately 300,000\nresidents in Southern Orange County through a single\nsubstation. Around 2008, the utility grew concerned that its\ncustomers would be at risk of service unreliability and even\nprolonged power outages should the sole substation falter.\nSDG&E therefore proposed the South Orange County\nReliability Enhancement (SOCRE) Project to rebuild and\nupgrade the substation, and replace and relocate several\ntransmission and distribution line segments.\n\n The California Independent System Operator (CAISO) is\na public entity that manages electricity transmission in\nCalifornia and operates transmission facilities owned by\nutilities such as SDG&E. In May 2011, the CAISO included\nthe SOCRE Project in its 2010-2011 Transmission Plan.\n\n 11\n SDG&E thereafter applied for various federal, state, and\nlocal permits for the SOCRE Project, including a Certificate of\nPublic Convenience and Necessity from the state regulatory\nauthority, the California Public Utilities Commission (CPUC).\nAccording to SDG&E’s Vice President, obtaining a Certificate\nof Public Convenience and Necessity is “[a]s a general matter\n. . . a lengthy and complex process” that includes an\nenvironmental review of the project proposal. Test. of David\nGeier, J.A. 64. SDG&E later claimed that the California Public\nUtilities Commission’s approval process presented “the\ngreatest level of risk and uncertainty” for the SOCRE Project.\nIncentive Petition 12, J.A. 40. SDG&E applied for a Certificate\nof Public Convenience and Necessity in May 2012.\n\n In September 2015, SDG&E sought a declaratory order\nfrom FERC establishing its eligibility for the Abandonment\nIncentive. SDG&E’s petition stated that it had “already\nexpended substantial resources, both direct spending and\ninternal labor” on the project, to the tune of approximately $31\nmillion. See Incentive Petition 16, J.A. 44. It noted that it had\nspent that much—and presumably procured whatever\nfinancing required to do so—“without assurance of cost\nrecovery for these development costs.” Id. As SDG&E\ndescribed the situation, a “substantial percentage of those costs\nwere incurred on the preparation of the utility’s development\nplan, and were incurred with no certainty that SDG&E’s\ndevelopment plan would be approved by the CPUC.” Id. at 16-\n17, J.A. 44-45. SDG&E does not appear to have applied for\nany other incentive, such as CWIP or pre-commercial\noperations cost recovery under Section 35.35(d)(1)(ii) or (iii).\n\n The Commission filed a Federal Register notice inviting\ninterventions and protests regarding SDG&E’s petition for the\nAbandonment Incentive. See San Diego Gas & Electric Co.;\nNotice of Petition for Declaratory Order, 80 Fed. Reg. 58,729-\n\n 12\n02 (2015). The California cities of Anaheim, Azusa, Banning,\nColton, Pasadena, and Riverside (Six Cities) filed a formal\nprotest that invoked the Commission’s decision in PJM II and\nargued that here, as there, the Commission should not apply the\nAbandonment Incentive to authorize SDG&E to recover from\nratepayers sunk costs SDG&E had previously incurred. See\nProtest on Behalf of the Cities of Anaheim, Azusa, Banning,\nColton, Pasadena, and Riverside, California (Oct. 23, 2015),\nJ.A. 179, 182. SDG&E had made a voluntary business decision\nto spend $31 million on the SOCRE project without any order\nfrom the Commission declaring its eligibility for the incentive,\nthe Six Cities argued, so no nexus had been shown and\nconsumers should not be on the hook to reimburse it for those\ncosts in the event the project is abandoned. See id. at 3-4, J.A.\n181-82.\n\n In its March 2, 2016, declaratory order, the Commission\ndetermined that, should the SOCRE project be cancelled or\nabandoned for reasons beyond SDG&E’s control, the utility\nwould be eligible to recover all of its prudently incurred costs\nassociated with the SOCRE project going forward. See San\nDiego Gas & Elec., 154 FERC ¶ 61,158 at PP17-18 (2016)\n(Declaratory Order). As for the costs that SDG&E had already\nincurred, the Commission held that SDG&E could share that\nburden with ratepayers under FERC’s 1988 Opinion No. 295,\nwhich granted utilities authority to charge ratepayers half the\nprudently incurred costs of abandoned transmission facilities.\nSee id. at P18; New Eng. Power Co., Op. No. 295, 42 FERC\n¶ 61,016. The Commission reasoned that, while “the risks that\nmay necessitate abandonment have generally been known to\nSDG&E since the project was included in the CAISO 2010-\n2011 Transmission Plan, [SDG&E] did not seek approval for\nthe Abandonment Incentive for approximately four years.”\nDeclaratory Order, 154 FERC ¶ 61,158 at P20. The\nCommission highlighted SDG&E’s acknowledgement that it\n\n 13\nhad incurred the costs “without assurance of cost recovery.” Id.\n(quoting Incentive Petition 16, J.A. 44). Allowing recovery of\nSDG&E’s past investment under these circumstances would\ntherefore be “contrary to the general policy rationale that\nincentives are designed to encourage future transmission\ninvestments” and “would violate the objective of benefitting\nconsumers.” Id. at P20 & n.48 (quoting Incentive Ratemaking\nfor Interstate Natural Gas Pipelines, Oil Pipelines, and Elec.\nUtils., 61 FERC ¶ 61,168, at ¶ 61,589 (1992)).\n\n The Commission denied SDG&E’s request for rehearing.\nSee San Diego Gas & Elec., 157 FERC ¶ 61,056 (2016)\n(Rehearing Order). In the Rehearing Order, the Commission\nreiterated that, under the Incentive Rule and the PJM II order\napplying it, the Abandonment Incentive covered costs incurred\nafter the date of the order granting the incentive. Id. at PP10-\n15 (citing PJM II, 142 FERC ¶ 61,156 (2013)). The result, the\nCommission reasoned, was rooted in the Incentive Rule’s\nnexus test, which requires the applicant “to demonstrate that\nthe incentives are rationally related with the investments being\nproposed.” Id. at P16 (quoting Order No. 679, 116 FERC ¶\n61,057 at P48). Thus, when SDG&E asserted that it incurred\nthe $31 million in prior costs without assurance of recovery, “it\nconceded that the Abandonment Incentive it seeks here is not\nrationally related to those previously incurred costs.” Id. at\nP17. The Commission determined that, for costs already\nincurred, the nexus test was not met because there was no\nshowing that “the incentive was [] needed to encourage\nSDG&E to make the investment in question.” Id. at P19.\n\n This petition for review followed. Pacific Gas & Electric\nCompany and Southern California Edison Company\nintervened in support of SDG&E. The Six Cities intervened in\nsupport of the Commission.\n\n 14\n II.\n\n A. Standing\n\n We begin by assuring ourselves of jurisdiction over the\npetition. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.\n83, 94-95 (1998). Under Section 313(b) of the FPA, we have\njurisdiction to review petitions only from parties “aggrieved”\nby an order of the Commission. 16 U.S.C. § 825l(b); cf.\nPNGTS Shipper’s Grp. v. FERC, 592 F.3d 132, 138-39 (D.C.\nCir. 2010) (finding a virtually identical provision in the Natural\nGas Act to be “jurisdictional”). And, under Article III, a\npetitioner’s standing to pursue its claim in federal court\ndepends on its identification of a concrete and particularized\ninjury that is fairly traceable to the challenged action and would\nbe redressable by a favorable court decision. See Lujan v.\nDefenders of Wildlife, 504 U.S. 555, 560-61 (1992). A party is\ndetermined to be aggrieved within the meaning of Section\n313(b) on the same showing of injury that suffices to establish\nstanding. See Exxon Mobil Corp. v. FERC, 571 F.3d 1208,\n1219 (D.C. Cir. 2009).\n\n The Commission’s orders concern SDG&E’s eligibility to\nrecover a benefit in the event of a future project cancellation or\nabandonment that may or may not occur. But its claimed harm\nis not speculative insofar as SDG&E suffers a concrete and\nimmediate economic injury stemming from the demonstrated\nrisk of project cancellation. The abandonment may never\noccur, but there is a concrete dispute over the scope of the\ncurrent beneficial assurance due to SDG&E. In its declaratory\norder, FERC recognized that SDG&E faces real and present\ncosts due to the risk of a future halt to the project, and FERC\ndetermined that those costs justified application of the\nAbandonment Incentive. No party disputes that determination;\nall agree that project-cancellation risk makes SDG&E’s\n\n 15\nSOCRE project a less attractive investment for outside funders\nand partners, increasing costs to SDG&E. See Pet’r Br.\nAddendum B, Decl. of David Geier ¶¶ 11-15. We have\npreviously held this sort of current economic injury from\nidentified risk of future harm sufficient to support standing, see\nGreat Lakes Gas Transmission v. FERC, 984 F.2d 426, 430-31\n(D.C. Cir. 1993), and do so again here.\n\n B. Analysis\n\n In the declaratory order under review, the Commission\nheld that SDG&E had shown a nexus only between the\nAbandonment Incentive and the utility’s expenditures on the\nSOCRE project going forward. See Declaratory Order, 154\nFERC ¶ 61,158 at PP17, 19. On rehearing, the Commission\nreiterated that the Abandonment Incentive’s nexus test requires\na showing that authorizing the incentive will “encourage action\nthat has not yet occurred.” See Rehearing Order, 157 FERC ¶\n61,056 at P15. No such nexus existed between the\nAbandonment Incentive and SDG&E’s sunk costs, because\nSDG&E admitted that it incurred those costs “without\nassurance of cost recovery.” Id. at P17 (quoting Incentive\nPetition 16, J.A. 44). The Commission thought it “reasonable\nto conclude that if SDG&E in fact spent $31 million in\ndevelopment costs over an approximately four-year period, a\nsignificant amount of money over a significant time period, an\nAbandonment Incentive was not needed to encourage that\ninvestment.” Id. at P19. The Commission therefore held that,\nin SDG&E’s case, insofar as the application sought the\nAbandonment Incentive for the portion of the project that was\nalready financed and paid for, it lacked the requisite nexus to\nthe facilitation of new investment, such as by making capital\nmore readily and cheaply available.\n\n 16\n SDG&E challenges the order, claiming that the Incentive\nRule itself makes an “offer” of incentive treatment, Pet’r. Br.\n12, and that any utility’s qualifying application thus constitutes\nbinding acceptance entitling it to all prudently incurred costs.\nSDG&E insists that, for the Abandonment Incentive, the rule\nestablishes a “fixed 100 percent recovery rate” of costs of the\nentire “transmission facilities” subject to abandonment. Pet’r\nBr. 13, 23, 34. It thus claims a right, in the event the SOCRE\nproject should in the future be abandoned for reasons beyond\nSDG&E’s control, to recover all development costs from the\nProject’s inception, including those costs incurred before the\nCommission deemed it eligible for the Abandonment\nIncentive. Pet’r Br. 31.\n\n The Commission responds that the Rule sets the general\nterms, but a utility’s entitlement depends on FERC’s approval.\nIt could hardly be otherwise. Electricity transmission\ndevelopment projects tend to be complex, varied, and\nexpensive—costing many millions or even billions of dollars\nand taking years to complete. The Incentive Rule provides for\nan array of incentive rate treatments, including a catchall “other\nincentives” category, see 18 C.F.R. § 35.53(d)(1)(viii),\navailable for customization into an application package that\nFERC approves to the extent it meets a utility’s demonstrated\nneed. An applicant must show a nexus between each incentive\nit seeks and that incentive’s role in financing reliable and\neconomically efficient transmission infrastructure. The\nCommission found that nexus to the Abandonment Incentive\nlacking with respect to SDG&E’s investments already made.\n\n The Commission’s approach comports with both the\nFederal Power Act and the Incentive Rule. When Congress\namended the Act in 2005, it called on FERC to promulgate a\nrule to “benefit[] consumers by ensuring reliability and\nreducing the cost of delivered power by reducing transmission\n\n 17\ncongestion.” 16 U.S.C. § 824s(a); see 18 C.F.R. § 35.35(a)\n(same). The Commission in the preamble to the Incentive Rule\nelaborated that it would not authorize incentives that “simply\nincreas[e] rates in a manner that has no correlation to\nencouraging new investment.” Order No. 679, 116 FERC ¶\n61,057 at P6. Instead, incentives must be “rationally tailored”\nto the relevant investment and will not function as a “bonus for\ngood behavior.” Id. at P26. The Commission has underscored\nthe key role of the nexus requirement “to ensure that incentives\nare not provided in circumstances where they do not materially\naffect investment decisions.” Order No. 679-A, 117 FERC ¶\n61,345 at P25. We stressed in Connecticut Department of\nPublic Utility Control v. FERC that the nexus test is not merely\n“fig leaf for accepting any link, however nominal or trivial,”\nbut must be shown to “affect the transmission owners’ conduct\nor benefit consumers.” 593 F.3d 30, 33-34 (D.C. Cir. 2010).\n\n The Commission’s order aligns with its “longstanding\npolicy that rate incentives must be prospective and that there\nmust be a connection between the incentive and the conduct\nmeant to be induced.” Cal. Pub. Utils. Comm’n v. FERC, 879\nF.3d 966, 977 (9th Cir. 2018) (citing S. Cal. Edison, 114 FERC\n¶ 61,018 (2006); ISO New Eng., 96 FERC ¶ 61,359 (2001);\nNew Eng. Power Pool, 97 FERC ¶ 61,093 (2001)). Indeed, the\nCommission made clear in a policy statement nearly three\ndecades ago that “[i]ncentive rate plans must be prospective.”\nSee Incentive Rate Making for Interstate Natural Gas\nPipelines, Oil Pipelines, and Elec. Utils., 61 FERC ¶ 61,168,\nat ¶ 61,599. Presaging the very reasoning it invoked in the\norder under review, the Commission declared: “A ‘reward’ for\npast behavior,” after all, “does not induce future efficiency and\nbenefit consumers.” Id. Our review of rate-based incentive\nprograms has never questioned the “obvious proposition” that\nthe Commission “will not, and cannot, create incentives to\n\n 18\nmotivate conduct that has already occurred.” Me. Pub. Utils.\nComm’n v. FERC, 454 F.3d 278, 289 (D.C. Cir. 2006); see\nConn. Dep’t of Pub. Util. Control, 593 F.3d at 34-35.\n\n The Incentive Rule makes a palette of incentive rate\ntreatments available to utilities. Transmission infrastructure\ninvestment projects may be eligible for one or more of the\nseven types of incentives the Rule describes, 18 C.F.R. §\n35.35(d)(1)(i)-(vii), or for some needed “other incentive” not\nwithin the Rule’s stated categories, id. § 35.35(d)(1)(viii). The\nburden is on the utility to show that it qualifies for each\nrequested incentive rate. The Rule’s incentives must be sought\nby application and secured by a FERC order. While the utility\nneed not demonstrate “but for” causation between a particular\ninvestment and the incentive it seeks, see Order No. 679, 116\nFERC ¶ 61,057 at P48, the Commission must ensure that\n“incentives are not provided in circumstances where they do\nnot materially affect investment decisions,” Order No. 679-A,\n117 FERC ¶ 61,345 at P25. To that end, the nexus test requires\nan applicant to show “that there is a relationship between the\nrate treatments sought and the attraction of new capital.” Id. at\nP17.\n\n The logic of the incentive rate treatment at issue here—the\nAbandonment Incentive—supports the Commission treating it\nas unwarranted for SDG&E’s pre-order costs. In the ordinary\ncourse, utilities recover costs through the rates they charge for\ndelivered power. A transmission infrastructure project that is\nabandoned never delivers power, so its costs might not\nordinarily be chargeable to ratepayers. Project-abandonment\nrisk can, however, impede major, cost-effective transmission\nupgrades that are in ratepayers’ interests. Investors hesitate to\ninvest in large, expensive projects that may fail before they\never earn a dime. And developers of projects facing\nabandonment risk—a kind of risk that, by definition, is major\n\n 19\nand uncontrollable—will pay more for capital. FERC’s\nAbandonment Incentive reflects the recognition that that, given\nthe elevated capital costs ratepayers shoulder for all\ninfrastructure investment projects at risk of abandonment,\nratepayers benefit by, in effect, paying to insure potential\ninvestors against such risk. Specifically, the Abandonment\nIncentive serves ratepayers’ interests when the aggregate\nsavings (from all qualifying projects’ lower ex ante capital\ncosts, producing more needed reliability improvements) more\nthan offset losses (from projects that must be abandoned and\nbilled to ratepayers). In other words, the logic of authorizing\nutilities to charge ratepayers for the occasional abandoned\nproject is that ratepayers enjoy offsetting benefits from\nimproved access to capital on better terms for all other qualified\ntransmission infrastructure upgrades.\n\n SDG&E acknowledges that it incurred substantial costs on\nthe SOCRE project before it secured eligibility for the\nAbandonment Incentive. Where, as here, a project faces\nabandonment risk, investors would ordinarily charge risk\npremiums unless they had assurance of abandoned-plant rate\nrecovery. Yet there is no evidence that SDG&E’s four years’\nworth of investment in the project was beneficially affected by\nany assurance provided through the Abandonment Incentive.\nIndeed, as FERC recognized, SDG&E’s claim that the\nIncentive Rule facilitated its $31 million in expenditures before\nFERC authorized it to charge incentive rates is belied by\nSDG&E’s own acknowledgement that it incurred those costs\n“without assurance of cost recovery.” Incentive Petition 16,\nJ.A. 44; Declaratory Order, 154 FERC ¶ 61,158 at P20. The\nutility’s Vice President repeatedly emphasized in the future\ntense that the incentive “will reduce the financial and\nregulatory risks associated with” transmission investment in\nthe SOCRE Project. Test. of David Geier, J.A. 74 (emphasis\nadded); accord id. J.A. 75 (“As a general matter, assurance that\n\n 20\nprudently incurred costs can be recovered should abandonment\nbe required for a reason beyond the developer’s control,\nsupports investment of significant equity capital on project\ndevelopment.”). But SDG&E made no showing how future\nrisk-reduction from the Abandonment Incentive affected its\ninvestments already made.\n\n By insisting that the timing of a declaratory order matters\nin granting the Abandonment Incentive, FERC reasonably\naccounts for ratepayers’ interests. Where FERC commits\nratepayers to cover costs of abandoned projects, it should at\nleast demand that utilities maximize ratepayers’ benefits from\nthose commitments. The longer a utility waits to secure\nabandoned-plant rate authority and the more it spends before\ndoing so, the higher its costs of capital in constructing\nsuccessful projects—costs that ultimately are passed on to\nratepayers. Nothing in the statute or Rule requires that FERC\nauthorize charging ratepayers ex post (via rate-recovery for\nfailed projects) in the name of generating ex ante benefits\n(capital availability at lower cost) for a portion of those ex ante\nbenefits (superior investment terms during the first four years\nof the project) that they never enjoyed. Put differently,\nratepayers who stand to be billed for risk premiums paid over\nseveral years should not also be called on to pay for a\nretroactive hedge against the very same risk.\n\n SDG&E raises several objections, none of which we find\npersuasive.\n\n First, SDG&E asserts that the regulation itself, rather than\nthe Commission’s project-specific declaratory order, amounts\nto a legally binding “offer” of rate treatment. See Pet’r Br. 43-\n46; Pet’r Int. Br. 3. Insisting that “[t]he text of Order No. 679\ncould not be clearer,” Pet’r Br. at 44, SDG&E quotes the\npreamble’s assertion that “this [Incentive] Rule . . . provides\n\n 21\nincentives for transmission infrastructure,” Order No. 679, 116\nFERC ¶ 61,057 at P1. SDG&E observes that “a utility can look\nto 18 C.F.R. § 35.35(d)(1)(vi), determine that its project is\nlikely to meet the eligibility criteria, and rely on that\nexpectation as motivation to proceed with the project.” Pet’r\nBr. 45. Of course, broadly speaking, SDG&E is correct that\nthe mere existence of the Incentive Rule is a general\ninducement to investment in transmission infrastructure. So,\ntoo, low home-mortgage rates generally encourage\nhomebuyers. But not every applicant is automatically entitled\nto every generally available deal.\n\n SDG&E is simply wrong that the Incentive Rule by itself\n“guarantees” any rate treatment or entitles a utility to any\nspecific incentive. As the Rule’s preamble squarely\nannounces: “The Final Rule does not grant incentive-based\nrate treatments or authorize any entity to recover incentives in\nits rates. Rather, it informs potential applicants of incentives\nthat the Commission is willing to allow when justified.” Order\nNo. 679, 116 FERC ¶ 61,057 at P20. The Commission\nexpressly cautioned utilities that “not every incentive identified\nherein will be necessary or appropriate for every new\ntransmission investment.” Id. at P6; see Pac. Gas & Elec. Co.,\n163 FERC ¶ 61,187 (recognizing Abandonment Incentive\neligibility of some projects but not others).\n\n Second, SDG&E argues that the Incentive Rule’s\nrecognition of two distinct procedural pathways for seeking\nCommission authorization for incentive rates means that the\ntiming of a declaratory order that a utility seeks under the two-\nstep option cannot affect the scope of eligibility for the\nAbandonment Incentive. As described above, a utility may\napply for at least some of the incentives in a one-step process,\nby seeking a rate adjustment under Section 205 of the FPA. Or,\nthe utility may follow a two-step procedure by first seeking a\n\n 22\ndeclaratory order establishing its eligibility for one or more\nincentives, and later seeking a corresponding rate adjustment.\nSee Order No. 679, 116 FERC ¶ 61,057 at PP76-79. SDG&E\ncontends that the Commission’s application of the nexus test\nconflicts with the Rule by effectively foreclosing applicants\nfrom seeking the Abandonment Incentive through a Section\n205 rate order alone, thereby “nullifying that one-step\nprocedural pathway.” Pet’r Br. at 39. SDG&E observes that a\nutility could only conceivably apply for a determinate rate\nincrease under Section 205 pursuant to the Abandonment\nIncentive after abandonment had in fact occurred, by which\ntime it would have necessarily already gone ahead with the\nproject without the hedge provided by that incentive. Thus, if\nthe one-step procedural pathway means anything, SDG&E\ncontends, it must—contrary to the challenged approach—\nassure recovery in the absence of any declaratory order and, a\nfortiori, cover pre-declaratory order costs.\n\n Not so. Nothing in the Rule requires that both one-step\nand two-step pathways be equally appropriate for every type of\nincentive. SDG&E appears to be correct that the Abandonment\nIncentive is only available through the two-step pathway,\nwhich involves securing a declaratory order in advance and\nlater, after project abandonment, petitioning for a rate under\nSection 205. That is because, in order to justify it as a spur to\ninvestment, the Abandonment Incentive will ordinarily need to\nbe in place at the relevant time, when uncontrollable future\nrisks would otherwise deter potential investors and put a risk\npremium on capital—i.e., before the relevant costs have been\nsuccessfully financed. See Policy Statement, 141 FERC\n¶ 61,129 at P14. That reality does not, however, render the\nIncentive Rule’s “one-step ‘option’ . . . no option at all.” Pet’r\nBr. at 38. The one-step pathway can alone suffice where an\napplicant seeks rate treatment under the Accelerated\nDepreciation or Deferred Cost Recovery Incentive provisions,\n\n 23\nsee 18 C.F.R. § 35.35(d)(1)(v), (vii). And perhaps a Section\n205 petition would suffice to enable an incumbent utility to\nrecover CWIP or pre-commercial operations costs for its new\nconstruction. See 18 C.F.R. § 35.35(d)(1)(ii), (iii). While those\nincentives might also be secured by a declaratory order in\nadvance of a Section 205 petition, they differ from the\nAbandonment Incentive to the extent that they do not operate\nas hedges against future risk followed by rate-based recovery\nonly when and if that risk materializes.\n\n Third, SDG&E contends that we must reject the\nCommission’s approach because the Incentive Rule requires a\nshowing of a nexus to “the project” as a whole, or the entire\n“transmission facilities” under development, rather than\nseparately to the utilities’ costs incurred before and after the\ndeclaratory order. See Pet’r Reply Br. 11-12. SDG&E points\nto the Incentive Rule’s introductory language directing\napplicants to demonstrate how the package of incentives they\nseek is “tailored to address the demonstrable risks or challenges\nfaced by the applicant in undertaking the project,” 18 C.F.R. §\n35.35(d) (emphasis added), and to the Abandonment Incentive\nsubsection of the Rule, which refers to “transmission\nfacilities,” id. § 35.35(d)(vi) (emphasis added); see Pet’r Reply\nBr. 11. But SDG&E takes that language out of context. There\nis no conflict between the Rule’s requirement that an applicant\nidentify risks faced by its project or facilities as a whole, and\nthe Commission’s determination that the potential public\nbenefit of the Abandonment Incentive supports applying it only\nprospectively. The Commission here did nothing at odds with\nthe Incentive Rule’s references to entire projects or facilities.\nIt considered the full scope of SDG&E’s request, assessed risks\nthat the SOCRE project as a whole would have to be\nabandoned, and determined that further investment in the\nproject would be encouraged by authorizing SDG&E, in the\n\n 24\nevent of such abandonment, to recover from ratepayers\nSDG&E’s investments after the effective date of the order.\n\n Fourth, SDG&E similarly contends that the declaratory\norder conflicts with the Incentive Rule by authorizing less than\nthe “100 percent” recovery stated in 18 C.F.R. § 35.35(d)(vi).\nDespite the Rule’s two references to “100 percent,” however,\nit is obvious that the relevant subsections do not require an all-\nor-nothing approach. As already discussed, applicants often\nobtain packages of more than one incentive. If the Commission\nwere to find a project eligible for rate-based reimbursement for\nCWIP, and for the Abandonment Incentive—each of which\nauthorizes recovery of “100 percent of prudently incurred”\ncosts, see 18 C.F.R. § 35.35(d)(1)(ii), (vi)—the Rule would not\nsupport a rate pursuant to the Abandonment Incentive that\nincluded 100 percent of the costs ratepayers had already been\ncharged pursuant to the CWIP allowance. See Order No. 679,\n116 FERC ¶ 61,057 at P166. The Rule’s reference to the\navailability of rate authority for “100 percent” of costs simply\ncannot be read to demand all-or-nothing approvals, foreclosing\nauthorization for something less where circumstances so\ndemand.\n\n Rather, the Commission grants incentive rate authority\n“when justified” on a “case-by-case basis” in orders tailored to\nthe demonstrated needs of each project. See Order No. 679,\n116 FERC ¶ 61,057 at P20; Order No. 679-B, 119 FERC ¶\n61,062 at P18. Indeed, the Incentive Rule “requires applicants\nto tailor their proposals to fit the facts of their particular case,”\nOrder No. 679, 116 FERC ¶ 61,057 at P5, such that “the\nincentive package as a whole results in [the] just and reasonable\nrate” mandated by the Rule, id. at P2. See 18 C.F.R. § 35.35(d)\n(requiring that the incentives be “tailored to address the\ndemonstrable risks” of each project). These overarching\nrequirements necessarily call on applicants to demonstrate\n\n 25\nneed, and they afford some flexibility to the Commission to\nlimit the incentive-rate authority it grants to match that need.\nJust as the Incentive Rule’s text permits the Commission to\ngrant less than 100 per cent rate authority in order to reconcile\nmultiple incentives, and to devise “other,” case-specific\nincentives for worthy projects, see 18 C.F.R. §\n35.35(d)(1)(viii), it contemplates that the Commission will\ntailor its grants of rate authority to particular features of an\napplicant’s demonstrated needs.\n\n Finally, we see no merit to SDG&E’s argument that the\nCommission’s treatment of the Abandonment Incentive in\nprior cases renders the orders below arbitrary and capricious.\nThe dissent objects that FERC twice granted pre-order costs\n“without imposing the limitation it applied to San Diego.”\nDiss. Op. 10 (citing Pac. Gas & Elec. Co., 137 FERC ¶ 61,193\n(2011), and S. Cal. Edison Co., 137 FERC ¶ 61,252 (2011)).\nIn those early Abandonment Incentive cases, the declaratory\norders made no express determination regarding effective\ndates, and no party objected to the utility’s recovery for the\nperiod at issue. See Pac. Gas & Elec. Co., 123 FERC ¶ 61,067\n(2008); S. Cal. Edison Co., 121 FERC ¶ 61,168 (2007).\nAlthough it drew a slightly different line in Pacific Gas &\nElectric—at the application for rather than grant of the\nAbandonment Incentive declaratory order—FERC ultimately\nrelied on the same basic logic it employed here to hold that\ncosts already incurred were not recoverable. See 137 FERC ¶\n61,193 at PP 2, 19.\n\n SDG&E also contends that several other cases in fact\ngranted pre-order costs pursuant to the Abandonment\nIncentive. But in most of its cited cases, no party filed a protest\nobjecting on this ground, as the Six Cities did here. See, e.g.,\nNextEra Energy Transmission W., LLC, 154 FERC ¶ 61,009\n(2016); ALLETE, Inc., 153 FERC ¶ 61,296 (2015); S. Cal.\n\n 26\nEdison, 137 FERC ¶ 61,252; Pac. Gas & Elec., 137 FERC ¶\n61,193. We have previously held that, “[i]n the absence of\nprotests,” the Commission’s decision to approve rate increases\ndoes not amount to “policy or precedent.” Gas Transmission\nNw. Corp. v. FERC, 504 F.3d 1318, 1320 (D.C. Cir. 2007); see\ngenerally Cooper Industries, Inc. v. Aviall Services, Inc., 543\nU.S. 157, 170 (2004) (“Questions which merely lurk in the\nrecord, neither brought to the attention of the court nor ruled\nupon, are not to be considered as having been so decided as to\nconstitute precedents.”) (quoting Webster v. Fall, 266 U.S. 507,\n510 (1925)). The dissent’s citation to ANR Storage Co. v.\nFERC, 904 F.3d 1020 (D.C. Cir. 2018), is not to the contrary.\nDiss. Op. 11. In ANR Storage, the Commission had attempted\nto distinguish its conflicting market-power determinations\nregarding two natural gas storage providers, each with\n“virtually indistinguishable” market power in the same market.\nId. at 1025. The sole underlying issue was squarely presented\nand necessarily resolved by the agency. Id. at 1025-26. In the\nFERC cases cited by SDG&E, in contrast, the question whether\npre-order costs were categorically available was neither\ncontested nor necessarily resolved. What is more, in NextEra\nEnergy, ALLETE, and Southern California Edison, the\nCommission did not discuss the pre-order cost issue in granting\nthe Abandonment Incentive. See NextEra Energy, 154 FERC\n¶ 61,009 at P27; ALLETE, 153 FERC ¶ 61,296 at P29; S. Cal.\nEdison, 121 FERC ¶ 61,168 at P71.\n\n ***\n\n Because the Commission’s application of the\nAbandonment Incentive is consistent with the Rule and\nsupported by substantial evidence, SDG&E’s petition is\ndenied.\n\n So ordered.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358769/", "author_raw": "Opinion for the Court filed by Circuit Judge PILLARD"}, {"author": "RANDOLPH, Senior Circuit Judge, dissenting", "type": "dissent", "text": "RANDOLPH, Senior Circuit Judge, dissenting:\n\n I will begin with a hypothetical.\n\n The Federal Energy Regulatory Commission at the\nbeginning of the year announces that any employee who\nprovides exceptional service will be eligible for a cash award at\nyear’s end. During the year several employees provide what the\nagency deems exceptional service: these employees manage to\nconvince a panel majority of the D.C. Circuit of a quite dubious\nproposition – namely, that the prospect of recovering 100\npercent of an investment even if the project fails is not an\nincentive to invest.\n\n In its annual awards ceremony, FERC adopts the reasoning\nit employed in the case before us. And so it passes over these\nemployees although they have rendered exceptional service.\nWhy? Because the employees have already performed. No\nneed to provide them with a cash award. After all, the\nemployees went the extra mile with no assurance of being\ndeemed exceptional and receiving any award. See Maj.\nOp. 19–20.\n\n There is no difference between this hypothetical and\nFERC’s decision here and the treatment of this case in the\nlengthy majority opinion, an opinion confirming the adage that\nsometimes the more you explain it the less anyone can\nunderstand it.\n\n The regulation at the center of this case is not complicated.\nA utility is entitled to recover “100 percent of prudently incurred\ncosts of transmission facilities that are cancelled or abandoned\ndue to factors beyond the control of the public utility.” 18\nC.F.R. § 35.35(d)(1)(vi).\n\n Although the regulation provides for the recovery of all\nprudently incurred costs, FERC decided that San Diego Gas &\n\n 2\n\nElectric could only recover some of those costs. According to\nFERC, the “Abandonment Incentive” applies only to costs the\nutility incurs after FERC has issued an order declaring the utility\neligible for the incentive.\n\n I will discuss three basic problems with FERC’s decision.\nThese are that the theory on which FERC relies is invalid; that\nthe language of the regulation does not support the decision; and\nthat FERC’s ruling is an unexplained departure from its\nprecedents. I will begin with the theory.\n\n FERC’s idea is that “incentives cease to be incentives if the\naction they are intended to promote has already occurred.” San\nDiego Gas & Elec. Co., 157 FERC ¶ 61,056, at P. 22 (Oct. 26,\n2016) [hereinafter Rehearing Order]. The majority’s opinion\nechoes this theme, citing “the ‘obvious proposition’ that the\nCommission ‘will not, and cannot, create incentives to motivate\nconduct that has already occurred.’” Maj. Op. 17–18 (quoting\nMe. Pub. Utils. Comm’n v. FERC, 454 F.3d 278, 289 (D.C. Cir.\n2006)).1 And so according to this theory San Diego did not need\nthe Abandonment Incentive for the costs it incurred before\nFERC declared the utility eligible for the incentive.\n\n The fallacy in this theory is its failure to recognize that\nFERC created the incentive when it promulgated the regulation\n\n\n\n\n 1\n In the case the majority quotes, the court recognized that\nincentive awards can apply to conduct that both pre- and post-dates the\naward. See Me. Pub. Utils. Comm’n, 454 F.3d at 288 (emphasis\nadded) (“FERC reasonably concluded the adder does not only reward\npast action.”); id. at 289 (emphasis added) (“Here, the RTO has yet to\nbe approved and the adder does not reward only past conduct . . ..”).\n\n 3\n\nin 2006,2 well before San Diego began incurring costs for its\ntransmission project. As any economist knows, although\nincentives “must be known to the agent in advance of his\nchoice,” they need not be awarded in advance of the choice;\nrather, they function as “an offer” and “a discrete prompt\nexpected to elicit a particular response.” Kristen Underhill,\nWhen Extrinsic Incentives Displace Intrinsic Motivation, 33\nYale J. on Reg. 213, 223 (2016) (quoting Ruth W. Grant, Strings\nAttached: Untangling the Ethics of Incentives 43 (2012)); see\nalso Aaron L. Nielson, Sticky Regulations, 85 U. Chi. L. Rev.\n85, 93 (2018) (“Basic economics suggests that in evaluating a\npotential investment opportunity, a regulated party considers\nhow likely it is that incentives will remain in place.”).\n\n The prompting effect is generated by the announcement of\nthe incentive even if the ultimate award is conditioned on some\nlater showing and paid after some or all of the performance. See\nPub. Serv. Comm’n of N.Y. v. FERC, 589 F.2d 542, 553 (D.C.\nCir. 1978) (emphasis added) (“In its programs to provide\nincentive for new expenditures the FPC has long been concerned\nwith avoiding payment for expenditures ‘sunk’ before the\n\n\n 2\n In the years leading up to the Energy Policy Act of 2005, Pub.\nL. No. 109-58, 119 Stat. 594, investment in electric transmission\nprojects declined “while the electric load using the nation’s grid more\nthan doubled,” Promoting Transmission Investment Through Pricing\nReform, 116 FERC ¶ 61,057, at P. 10 (July 20, 2006) [hereinafter\nOrder No. 679], order on reh’g, 117 FERC ¶ 61,345 (Dec. 22, 2006),\norder on reh’g, 119 FERC ¶ 61,062 (Apr. 19, 2007). Utility\ncompanies constructing new transmission facilities faced substantial\nrisks, not the least of which was that after expending considerable\nfunds, the company would have to abandon the project for reasons\nbeyond its control and could not recover its investment. The Energy\nPolicy Act directed the Federal Energy Regulatory Commission to\nestablish incentive-based rules in order to reduce such risks and\nencourage investment in transmission facilities. See id. at PP. 1–14.\n\n 4\n\nannouncement of the incentive . . ..”); Louis Kaplow, An\nEconomic Analysis of Legal Transitions, 99 Harv. L. Rev. 509,\n551 (1986) (discussing retroactivity in relationship to “the\nannouncement date” of incentives).3\n\n The majority opinion tries to skirt this problem. It points\nout that San Diego never offered evidence showing that it relied\non the Abandonment Incentive in deciding to build its\ntransmission facility. Maj. Op. 19–20. This is a red herring.\nUnder the regulatory regime FERC established, San Diego had\nno obligation to provide such evidence. In the 2006 rulemaking\non the incentive rules, FERC “reject[ed] arguments that an\napplicant must show that, but for the incentives, the expansion\nwould not occur.” Order No. 679, 116 FERC ¶ 61,057, at P. 48.\nFERC’s final rule was instead “based on a clear directive from\nCongress that does not require an applicant to show that it would\nnot build the facilities but for the incentives.” Id. That directive\nin section 219 of the Federal Power Act, 16 U.S.C. § 824s, does\nnot require “an individual showing of need by incentive\napplicants,” Order No. 679, 116 FERC ¶ 61,057, at P. 53.\n\n The majority opinion also relies on San Diego’s statement\nthat some of its pre-order costs were expended “without\nassurance of cost recovery.” Maj. Op. 19. FERC went even\nfurther. It decided that San Diego’s project was not “rationally\nrelated” to the incentive because the utility had no guarantee of\nrecovering its costs. Rehearing Order, 157 FERC ¶ 61,056, at\nP. 17. There is irrationality here, but it is on the part of FERC\n\n\n 3\n Consider a common federal incentive: the tax deduction for\ncharitable contributions. Announced decades ago by Congress, that\nincentive encourages contributions made before the taxpayer applies\nfor the deduction in that year’s return. See 26 U.S.C. § 170(a)(1);\nStanley S. Surrey, Tax Incentives as a Device for Implementing\nGovernment Policy, 83 Harv. L. Rev. 705 (1970).\n\n 5\n\nand the majority opinion. Lack of certain recovery does not\nrender the regulation something other than an incentive. Even\nwith respect to costs incurred after a FERC declaratory order, a\nutility cannot be certain that it will ultimately qualify for the 100\npercent Abandonment Incentive. After all, the project may or\nmay not be abandoned. Even then, there will still be the\nquestions whether post-order costs were prudent and whether the\nlater termination of the project resulted from factors beyond the\nutility’s control.\n\n The Abandonment Incentive grew out of a preexisting\nsystem under which FERC generally awarded 50 percent of all\nprudently incurred costs for abandoned facilities. See New Eng.\nPower Co., 42 FERC ¶ 61,016, 1988 WL 243523 (Jan. 15,\n1988), reh’g granted in part on other grounds, 43 FERC\n¶ 61,285 (May 19, 1988). That system rested on FERC’s\nlongstanding policy of ensuring that utility investors are at least\npartially “shielded against risk of losses resulting from aborted\nprojects,” thereby decreasing their “cost of capital.” Id. at *10\n(quoting New Eng. Power Co., 8 FERC ¶ 61,054, at P. 61,177\n(July 19, 1979), order on remand, 10 FERC ¶ 61,279 (Mar. 26,\n1980), modified in part on other grounds, NEPCO Mun. Rate\nComm. v. FERC, 668 F.2d 1327 (D.C. Cir. 1981)). In other\nwords, the prior system also operated as an incentive. It was,\nmoreover, an incentive routinely awarded with respect to pre-\norder costs. FERC extended this incentive to cover 100 percent\nof costs for much the same reason, that is, “[t]o reduce the\nuncertainty associated with higher risk projects, thereby\nfacilitating investment in these projects.” Order No. 679, 116\nFERC ¶ 61,057, at P. 155. FERC offers no reason to distinguish\nbetween these two incentives with respect to pre-order costs. To\nthe contrary, at the time it promulgated the regulation in this\ncase, FERC specifically called for its incentives to apply to costs\nthat predated the rule itself by up to roughly one year. Id. at\n\n 6\n\nP. 34. Such costs would, of course, have occurred entirely in\nadvance of any order issued under the rule.\n\n Tying eligibility for the Abandonment Incentive to the date\nof FERC’s order is particularly arbitrary, given that the date of\nthe order is untethered to the development of the transmission\nfacility in question. The result is that the amount of an\napplicant’s recovery will depend on FERC’s caseload and its\nefficiency in issuing declaratory orders. Here, San Diego lost\nout on more than five months’ worth of Abandonment Incentive\ncosts for the period during which its petition was pending before\nthe Commission. See Rehearing Order, 157 FERC ¶ 61,056, at\nPP. 1–3.\n\n This brings me to the text of the regulation. The majority\ndefers to FERC’s interpretation. See Maj. Op. 17–18, 20. It\npresumably grants this deference pursuant to Auer v. Robbins,\n519 U.S. 452, 461–63 (1997), without taking the necessary first\nstep of identifying an ambiguity in the regulation.4 The majority\n\n\n 4\n The Supreme Court recently granted certiorari to consider\nwhether to overrule Auer’s rule of deference to agency interpretations\nof ambiguous regulations. See Kisor v. Wilkie, No. 18-15, 2018 WL\n6439837 (U.S. Dec. 10, 2018). This case demonstrates the perils of\ndeferring to an agency’s wayward interpretation of its own regulation.\nChristopher v. SmithKline Beecham Corp., 567 U.S. 142, 155–56\n(2012); see also Garco Constr., Inc. v. Speer, 138 S. Ct. 1052,\n1052–53 (2018) (Thomas, J., dissenting from the denial of certiorari);\nPerez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1210–11 (2015)\n(Alito, J., concurring in part and concurring in the judgment); id. at\n1211–13 (Scalia, J., concurring in the judgment); id. at 1213–25\n(Thomas, J., concurring in the judgment); Decker v. Nw. Envtl. Def.\nCtr., 568 U.S. 597, 615–16 (2013) (Roberts, C.J., concurring); id. at\n616–26 (Scalia, J., concurring in part and dissenting in part). See\ngenerally John F. Manning, Constitutional Structure and Judicial\nDeference to Agency Interpretations of Agency Rules, 96 Colum. L.\n\n 7\n\ndoes not take this step because the regulation is not in the least\nbit unclear.\n\n Nothing supports FERC’s distinction between pre- and\npost-order spending. The regulation and the preamble to it in\nthe rulemaking are unambiguous. The text of the Abandonment\nIncentive shows that it applies on a project-to-project basis,\nregardless of when or how a utility seeks authorization from\nFERC. Thus, FERC “will authorize” a utility to recover “100\npercent of prudently incurred costs of transmission facilities that\nare cancelled or abandoned due to factors beyond the control of\nthe public utility,” 18 C.F.R. § 35.35(d)(1)(vi), subject to the\n“facilities” satisfying the reliability test and the “project”\nsatisfying the nexus test, id. § 35.35(d).5\n\n In the face of this unambiguous directive – 100 percent –\nFERC granted San Diego some $15 million less than 100\npercent of the costs of the project. FERC explained that it had\na “policy that a public utility may only recover up to 50 percent\nof prudently incurred abandonment costs for costs that are\nincurred before the date of the order granting the incentives.”\nRehearing Order, 157 FERC ¶ 61,056, at P. 10. Except that is\nnot the policy FERC promulgated in its regulation. Nothing in\nthe text of the Abandonment Incentive suggests that “100\npercent” means anything less than just that. And nothing in the\n\n\n\nRev. 612 (1996).\n 5\n The applicant must show (1) that “the facilities for which it\nseeks incentives either ensure reliability or reduce the cost of delivered\npower by reducing transmission congestion consistent with the\nrequirements of section 219 [of the Federal Power Act]” and (2) that\n“the total package of incentives is tailored to address the demonstrable\nrisks or challenges faced by the applicant in undertaking the project.”\nId.\n\n 8\n\ntext of the regulation gives FERC discretion to award something\nless than the full incentive once the requirements are met.\nIndeed, in response to comments during its rulemaking, FERC\nexpressly declined to revise the regulation to include “gradations\nregarding . . . the amount of incentive approved.” Order\nNo. 679, 116 FERC ¶ 61,057, at P. 49. The Commission is\nbound by that choice unless and until it revises the Rule through\nadditional notice-and-comment rulemaking. E.g., United States\nv. Nixon, 418 U.S. 683, 695–96 (1974); Clean Air Council v.\nPruitt, 862 F.3d 1, 8–9 (D.C. Cir. 2017) (per curiam).\n\n The structure of the regulation also cuts against FERC’s\nview. An applicant may seek a determination of its eligibility\nfor incentives in two ways. As San Diego did here, an applicant\nmay seek a pre-abandonment declaratory order, followed by a\npost-abandonment filing for a rate adjustment under section 205\nof the Federal Power Act. 18 C.F.R. § 35.35(d). The regulation\nalternatively allows an applicant to forgo the declaratory-order\nstep and instead seek eligibility and rate determinations\nsimultaneously after abandonment. Id. An applicant who opts\nfor this second procedural route by making only a post-\nabandonment filing would have incurred all of its costs in\nadvance of FERC’s order. Under FERC’s policy of denying\npre-order costs, then, the Abandonment Incentive would entitle\nsuch an applicant to 0 rather than 100 percent of its costs.\n\n Even for those applicants seeking a declaratory order in\nadvance of abandonment, under FERC’s policy few if any will\nobtain the elusive 100 percent of costs called for by the\nAbandonment Incentive. In order to show that its project meets\nthe regulation’s substantive requirements of reliability and\nnexus, an applicant must necessarily have expended funds in\nplanning and development. Those costs would pre-date the\ndeclaratory order and would therefore be excluded from the\n\n 9\n\nAbandonment Incentive according to FERC’s decision in this\ncase.\n\n FERC’s counsel tries to escape the consequences of the\nadministrative decision here by asserting that the agency is\nmerely proceeding on a “case-by-case basis.”6 The assertion is\neither meaningless or capricious, even though the majority\nopinion seems to endorse it. If all it is intended to describe is\nthe process of deciding cases, we already have a word for it –\nadjudication. On the other hand, it may signify that FERC has\ndiscretion to treat other applicants seeking pre-order costs\ndifferently than it treated San Diego. But an agency’s discretion\nis not “inclination,” but its “judgment; and its judgment is to be\nguided by sound legal principles.” United States v. Burr, 25 F.\nCas. 30, 35 (C.C.D. Va. 1807) (No. 14,692d) (Marshall, C.J.);\nsee also Henry J. Friendly, Indiscretion About Discretion, 31\nEmory L.J. 747 (1982). So what are the “sound legal principles”\nfor FERC to allow or disallow 100 percent recovery of pre-order\ncosts? FERC provided none in its adjudication of this case and\nneither has agency counsel.7\n\n\n\n 6\n Auer deference is especially unwarranted where, as here, the\nagency’s interpretation is adopted post hoc as a litigating position and\nconflicts with its prior reasoning. Christopher, 567 U.S. at 155–56.\n 7\n The majority’s recitation of FERC’s rule adopts the categorical\napproach. See Maj. Op. 9–10 (noting that the Abandonment Incentive\nis available for costs “only insofar as those costs were incurred after\nthe effective date of the order” and identifying that date as “the\nseparating point between” eligible and ineligible costs). It ignores that\nFERC repeatedly renounced that position in this appeal. See, e.g.,\nResp’t Br. 12–13 (“But the Commission did no such thing. . . . [S]uch\n[pre-order] costs could be recovered if the applicant established the\nrequisite nexus.”); id. at 28 (“The Commission Did Not Bar All\nRetroactive Recovery”); id. at 30, 37.\n\n 10\n\n In short, FERC’s policy runs contrary to the text, structure,\nand purpose of the regulation. FERC’s interpretation is not\n“fairly supported by the text of the regulation itself,” and\napplicants lack “adequate notice of that interpretation . . . within\nthe rule itself.” Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002);\naccord Mellow Partners v. Comm’r, 890 F.3d 1070, 1079 (D.C.\nCir. 2018).\n\n FERC’s policy also departs from the agency’s precedent.\nThe majority’s attempt to write off FERC’s prior orders is\ncontrary to the law of this circuit.\n\n In NextEra, for example, the utility sought to recover an\nAbandonment Incentive of 100 percent of its prudently incurred\ncosts, “including costs related to the Projects that have been\nincurred prior to the date of filing.” NextEra Energy\nTransmission W., LLC, 154 FERC ¶ 61,009, at P. 13 (Jan. 8,\n2016). FERC granted that request without any limitation with\nrespect to pre-order costs. Id. at P. 26. FERC so ruled without\nengaging in any so-called case-by-case analysis of whether to\naward pre-order costs. Id. The majority opinion hypothesizes\nthat FERC did not resolve the question of NextEra’s pre-order\ncosts. Maj. Op. 25–26. There is no indication in FERC’s order\nto support that hypothesis: NextEra expressly sought an order\nwith respect to those costs, and its request was granted without\nany relevant limitation. Still less was any explanation in\nFERC’s order in this case about why it did not take such an\napproach with respect to San Diego. In at least two cases of\nactual abandonment, FERC has gone on to grant pre-order costs\nwithout imposing the limitation it applied to San Diego. See S.\nCal. Edison Co., 137 FERC ¶ 61,252, PP. 10, 24 (Dec. 30,\n2011); Pac. Gas & Elec. Co., 137 FERC ¶ 61,193, at PP. 4–5, 19\n(Dec. 12, 2011).\n\n 11\n\n The majority discounts these prior orders because “no party\nfiled a protest objecting on this ground, as the Six Cities did\nhere” and because the issue of pre-order costs was not\nspecifically discussed. Maj. Op. 25–26. Our court has rejected\nthis very argument. In ANR Storage, FERC attempted to\ndistinguish its prior orders from the one under review on the\nbasis that the former had been unopposed and lacked a reasoned\ndiscussion. ANR Storage Co. v. FERC, 904 F.3d 1020, 1025\n(D.C. Cir. 2018). We held that FERC had failed to “satisfy [its]\nburden to provide some reasonable justification for treating [the\nutilities] differently.” Id. FERC has a “statutory duty—imposed\nby the APA and owed to all other regulated parties—to provide\nsome reasonable justification for any adverse treatment relative\nto similarly situated competitors.” Id. FERC breached that\nduty here by imposing a new policy on San Diego without\nexplaining its departure from prior orders.8\n\n\n\n\n 8\n Gas Transmission, cited by the majority, is not to the contrary.\nSee Gas Transmission Nw. Co. v. FERC, 504 F.3d 1318, 1319–20\n(D.C. Cir. 2007). In that case, we observed that FERC’s acceptance\nof unopposed tariff sheets “does not turn every provision of the tariff\ninto ‘policy’ or ‘precedent.’” Id. at 1320. That narrow statement – not\nevery provision – does not license FERC to apply its own rules\ninconsistently so long as it avoids explaining its actions.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358769/", "author_raw": "RANDOLPH, Senior Circuit Judge, dissenting"}]} | ROGERS | PILLARD | RANDOLPH | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581516/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: SAN DIEGO GAS & ELECTRIC COMPANY, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Pacific Gas and Electric Company, Et Al., Intervenors\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued March 15, 2018 Decided January 15, 2019\n\n No. 16-1433\n\n SAN DIEGO GAS & ELECTRIC COMPANY,\n PETITIONER\n\n v.\n\n FEDERAL ENERGY REGULATORY COMMISSION,\n RESPONDENT\n\n PACIFIC GAS AND ELECTRIC COMPANY, ET AL.,\n INTERVENORS\n\n\n On Petition for Review of Orders of the\n Federal Energy Regulatory Commission\n\n\n Kevin King argued the cause for petitioner. With him on\nthe briefs were James R. Dean Jr., Mark L. Perlis, and\nJonathan J. Newlander.\n\n Rebecca A. Furman and Keith T. Sampson were on the\nbrief for intervenors Southern California Edison Company, et\nal., supporting petitioner.\n\n Carol J. Banta, Attorney, Federal Energy Regulatory\nCommission, argued the cause for respondent. On the brief\n\n 2\nwere David L. Morenoff, General Counsel, Robert H. Solomon,\nSolicitor, and Ross R. Fulton, Attorney.\n\n Bonnie S. Blair, Margaret E. McNaul, Rebecca L. Shelton,\nLisa S. Gast, Peter J. Scanlon, Michael Postar, and Bhaveeta\nK. Mody were on the joint brief for intervenors Cities of\nAnaheim, Azusa, Banning, Colton, Pasadena, and Riverside,\nCalifornia, et al., supporting respondent.\n\n Before: ROGERS and PILLARD, Circuit Judges, and\nRANDOLPH, Senior Circuit Judge.\n\n Opinion for the Court filed by Circuit Judge PILLARD.\n\n Dissenting opinion filed by Senior Circuit Judge\nRANDOLPH.\n\n PILLARD, Circuit Judge: Petitioner San Diego Gas &\nElectric Company (SDG&E) seeks review of a Federal Energy\nRegulatory Commission (FERC or Commission) declaratory\norder applying FERC’s cancelled or abandoned electricity\ntransmission facilities incentive, 18 C.F.R. § 35.35(d)(1)(vi)\n(Abandonment Incentive), only prospectively, to investment\nthat had yet to occur. FERC grants the Abandonment Incentive\nto qualifying transmission infrastructure projects to facilitate\nfinancing by assuring that ratepayers may be charged for the\nproject if it is abandoned for reasons beyond the utility’s\ncontrol. Id. SDG&E’s application acknowledged that the\nutility had already obtained needed investment and proceeded\nwith the project for four years “without assurance of cost\nrecovery for these development costs.” Pet. for Declaratory\nOrder of San Diego Gas & Electric Company 16 (Sept. 23,\n2015), Joint App’x (J.A.) 44. Reasoning that the role of the\nAbandonment Incentive is to facilitate investment by hedging\nabandonment risk, rather than to reward investments that\n\n 3\nwould happen in any event, the Commission found that\nSDG&E had failed to establish the requisite nexus between the\nAbandonment Incentive and costs it already incurred before it\nobtained the declaratory order. SDG&E claims that the order’s\nlimitation to future costs is contrary to the Abandonment\nIncentive’s terms and arbitrary and capricious. For the reasons\nthat follow, we deny the petition.\n\n I.\n\n A. Regulatory Context\n\n In an effort to bolster investment in “reliable and\neconomically efficient” energy transmission infrastructure,\nCongress in 2005 amended the Federal Power Act (FPA), 16\nU.S.C. § 792 et seq., to require FERC to promulgate a rule to\nestablish “incentive-based” rate treatments in order to\n“promot[e] capital investment” in projects to upgrade the\nelectricity grid. Id. § 824s(a), (b)(1); see Energy Policy Act of\n2005, Pub. L. No. 109-58, § 1241, 119 Stat. 961 (2005)\n(codified as amended at 16 U.S.C. § 824s). Congress’s express\npurpose in calling for such a rule was to “benefit[] consumers\nby ensuring reliability and reducing the cost of delivered power\nby reducing transmission congestion.” 16 U.S.C. § 824s(a). In\nCongress’s view, because such a rate-treatment rule would\nenable needed upgrades to infrastructure on which reliable and\nefficient electric service depends, it would ultimately benefit\nconsumers, even as it also cost them. See id. Any rate FERC\napproves under the rule, Congress stipulated, must be “just and\nreasonable and not unduly discriminatory or preferential.” Id.\n§ 824s(d).\n\n The Commission adopted its Incentive Rule the following\nyear, see Transmission Infrastructure Investment (Incentive\nRule), 18 C.F.R. § 35.35 (2006), and refined it through two\n\n 4\nrehearing orders and a policy statement, see Promoting\nTransmission Investment Through Pricing Reform, Order No.\n679, 116 FERC ¶ 61,057 (2006), order on reh’g, Order No.\n679-A, 117 FERC ¶ 61,345 (2006), order on reh’g, Order No.\n679-B, 119 FERC ¶ 61,062 (2007); Promoting Transmission\nInvestment Through Pricing Reform, 141 FERC ¶ 61,129\n(2012) (Policy Statement).\n\n The Incentive Rule establishes eight categories of\nincentive-based rate treatments for public utilities. 18 C.F.R. §\n35.35(d). Three prerequisites must be met by each applicant\nseeking any of those treatments:\n\n The applicant must demonstrate [1] that the facilities\n for which it seeks incentives either ensure reliability or\n reduce the cost of delivered power by reducing\n transmission congestion consistent with the\n requirements of section 219 [of the Federal Power\n Act], [2] that the total package of incentives is tailored\n to address the demonstrable risks or challenges faced\n by the applicant in undertaking the project, and [3] that\n resulting rates are just and reasonable.\n\nId. The Rule invites an applicant to request a “package of\nincentives . . . tailored” to its particular needs. Id. In so doing,\nthe applicant must make its case for including in its rates each\nof the incentive-based rate treatments it requests. The Rule\ndefines “incentive-based rate treatment” to mean any of the\nfollowing:\n\n (i) A rate of return on equity sufficient to attract\n new investment in transmission facilities;\n\n (ii) 100 percent of prudently incurred Construction\n Work in Progress (CWIP) in rate base;\n\n 5\n\n (iii) Recovery of prudently incurred pre-commercial\n operations costs;\n\n (iv) Hypothetical capital structure;\n\n (v) Accelerated depreciation used for rate recovery;\n\n (vi) Recovery of 100 percent of prudently incurred\n costs of transmission facilities that are cancelled\n or abandoned due to factors beyond the control\n of the public utility;\n\n (vii) Deferred cost recovery; and\n\n (viii) Any other incentives approved by the\n Commission . . . that are determined to be just\n and reasonable and not unduly discriminatory or\n preferential.\n\nId. § 35.35(d)(1). The Commission authorized each of these\nincentives as a means to “encourage new infrastructure,” but\ncautioned that they should be applied in a case-specific manner,\nonly where appropriate, to avoid “increasing rates in a manner\nthat has no correlation to encouraging new investment.” Order\nNo. 679, 116 FERC ¶ 61,057 at P6.\n\n The incentive at issue here—the cancelled or abandoned\ntransmission facilities incentive, 18 C.F.R. § 35.35(d)(1)(vi)\n(Abandonment Incentive)—encourages new investment in\ntransmission infrastructure projects by offsetting some of the\nlargest and least predictable downside investment risks of these\nprojects, “such as generation developers’ decisions to develop\nor terminate the development of potential resources or\ndifficulty obtaining state or local siting approvals.” Order No.\n\n 6\n679, 116 FERC ¶ 61,057 at P155. By assuring recovery of\ncosts of projects abandoned for reasons beyond their\ndevelopers’ control, the Abandonment Incentive “provid[es]\ncompanies with more certainty during the pre-construction and\nconstruction periods,” Policy Statement, 141 FERC ¶ 61,129 at\nP14, “thereby facilitating investment in these projects,” Order\nNo. 679, 116 FERC ¶ 61,057 at P155. An applicant for the\nAbandonment Incentive must show that it faces the kinds of\nknown but uncontrollable cancellation risks that, without the\nincentive, could impair the applicant’s ability to attract\ninvestment to the project, or raise the utility’s—and, in turn,\nratepayers’—cost of such investment. The Commission\nexplained that it would evaluate applications for this incentive\non a “case-by-case basis.” Order No. 679, 116 FERC ¶ 61,057\nat P164.\n\n The Commission developed the Abandonment Incentive\nagainst the backdrop of its standard, burden-sharing treatment\nof costs of abandoned transmission infrastructure projects. An\norder the Commission issued in 1988 authorized utilities to\nsplit the costs of cancelled projects 50-50 with their consumers\nthrough rate increases, provided the utilities demonstrated the\nneed to recover the investment, and that the costs at issue were\nprudently incurred. See New Eng. Power Co., Op. No. 295, 42\nFERC ¶ 61,016 (1988); see also New Eng. Power Co., Op. No.\n49, 8 FERC ¶ 61,054 (1979). Under the new Abandonment\nIncentive provision of the Incentive Rule, utilities may, on a\nshowing of a nexus between exposure to risk from project\nabandonment and difficulty or costs of attracting needed\ninvestment, obtain an order of eligibility to recover “100\npercent of prudently incurred costs of transmission facilities\nthat are cancelled or abandoned due to factors beyond the\ncontrol of the public utility.” 18 C.F.R. § 35.35(d)(1)(vi); see\n16 U.S.C. § 824s.\n\n 7\n The Abandonment Incentive is just one of an open-ended\nset of incentive rate treatments the new Incentive Rule\nauthorizes, entitlement to which depends on an order of\napproval from the Commission. Each utility that proposes to\nenhance transmission infrastructure may apply for a package of\nincentives customized to its particular circumstances. The\nCommission then determines whether and how the requested\nincentives are warranted before it approves any corresponding\nrate authority.\n\n Transmission upgrades vary in size, complexity, and the\nrisks and challenges they face, so no one-size-fit-all package of\nincentives is—or could be—secured by the Rule itself. The\nIncentive Rule “does not grant incentive-based rate treatments\nor authorize any entity to recover incentives in its rates,” but\nonly “informs potential applicants of incentives that the\nCommission is willing to allow when justified.” Order No.\n679, 116 FERC ¶ 61,057 at P20. The seven specified\nincentives are themselves partially overlapping and context-\nspecific. And the eighth category—a catchall authorization of\n“[a]ny other incentives approved by the Commission,” 18\nC.F.R. § 35.35(d)(1)(viii)—underscores the Rule’s\ncontemplation of case-by-case applications based on\nappropriate showings, and that entitlement to an incentive rate\ntreatment depends on an order authorizing it.\n\n All of the incentives share the common overall objective\nof facilitating improvements to transmission infrastructure, but\nthey do so in a range of ways. Two of the incentives encourage\ninvestment in infrastructure projects by providing a way to ease\na developer’s cash flow in advance of the project coming on\nline, which in turn can improve “the overall financial health of\na company and its ability to attract capital at reasonable prices.”\nSee Order No. 679, 116 FERC ¶ 61,057 at P103. The CWIP\nincentive, see 18 C.F.R. § 35.35(d)(1)(ii), for example, “allows\n\n 8\nrecovery of a return on construction costs during the\nconstruction period rather than delaying cost recovery until the\nplant is placed into service.” Policy Statement, 141 FERC ¶\n61,129 at P12. Similarly, the pre-commercial operations costs\nincentive, 18 C.F.R. § 35.35(d)(1)(iii), allows utilities to\nrecover other early project costs incurred before the facility is\nup and running, such as expenditures for “preliminary surveys,\nplans and investigations, made for the purpose of determining\nthe feasibility of utility projects and costs of studies and\nanalyses mandated by regulatory bodies related to the plant in\nservice.” See Order No. 679, 116 FERC ¶ 61,057 at P122 n.82.\n\n Additional incentives can address the timing of cost\nrecovery after a project is in use. The Commission may\nauthorize a utility to accelerate depreciation in order to recover\ncosts more quickly than over the life of the project—effectively\ncharging ratepayers in the near term for facilities that will be in\nuse far into the future. See 18 C.F.R. § 35.35(d)(1)(v); Order\nNo. 679, 116 FERC ¶ 61,057 at P146. Or the Commission may\nallow a utility to defer cost recovery where, for example, it is\nunder a retail rate freeze that would prevent full recovery in the\nordinary course, id. § 35.35(d)(1)(vii)—authority the\nCommission has committed to exercise consistently with state\nauthority over retail ratemaking, see Order No. 679, 116 FERC\n¶ 61,057 at P177.\n\n An application to qualify for any of the rate treatments\nauthorized by the Incentive Rule must meet the Rule’s “nexus\ntest” by demonstrating that “the total package of incentives”\nthe utility seeks is “tailored to address the demonstrable risks\nor challenges faced by the applicant in undertaking the\nproject.” 18 C.F.R. § 35.35(d). A utility must, in other words,\nshow a link between each requested incentive and the utility’s\nability to address the project’s risks and hurdles that correspond\nto that incentive. See Order No. 679, 116 FERC ¶ 61,057 at\n\n 9\nP26. The Commission underscored that, because incentives\nmust be “rationally tailored” to the risks presented by an\ninvestment, “[n]ot every incentive will be available for every\nnew investment.” Id. The requirement of a demonstrated,\ncase-specific nexus tethers each authorized incentive rate\nincrease to a determination that granting that incentive in a\ngiven case actually serves Congress’s objective of benefiting\nconsumers. To that end, the Commission assured commenters\non the Incentive Rule that it would scrutinize incentive\napplications to make sure every authorized rate treatment was\ntailored to its relevant objective.\n\n The Commission identified two ways for utilities to apply\nfor incentive-based rate treatments. Under the one-step option,\na utility may seek a specified increase in its rates under Section\n205 of the FPA. See Order No. 679, 116 FERC ¶ 61,057 at\nP79. Under the two-step option, a utility may petition for a\ndeclaratory order establishing its eligibility to increase rates\npursuant to an applicable incentive and later, armed with the\ndeclaratory order, seek the Commission’s approval for a\nspecific rate increase under Section 205. See 16 U.S.C. § 824d;\nOrder No. 679, 116 FERC ¶ 61,057 at PP76-77, 166. A\nutility’s choice between these procedural options is likely\ninfluenced by the types of incentives it seeks. The Commission\nnoted that the option to apply for a declaratory order well in\nadvance of a rate petition would be particularly useful for\nutilities “prior to commencing siting, permitting and\nconstruction activities because such orders facilitate financing\nand investment in new facilities.” Order No. 679, 116 FERC ¶\n61,057 at P77.\n\n The Commission takes the position that the Abandonment\nIncentive supports recovery of 100 percent of costs prudently\nincurred only insofar as those costs were incurred after the\neffective date of the order approving the utility’s application.\n\n 10\nSee PJM Interconnection, LLC, 142 FERC ¶ 61,156 (2013)\n(“PJM II”). In a series of orders, it has similarly limited\nrecovery of the incentive to prospective costs. See, e.g., Pac.\nGas & Elec. Co., 163 FERC ¶ 61,187 at P14 (2018); Citizens\nEnergy Corp., 162 FERC ¶ 61,161 at P26 (2018); S. Cal.\nEdison Co., 161 FERC ¶ 61,107 at P44 (2017); Republic\nTransmission, LLC, 161 FERC ¶ 61,036 at P29 (2017); DCR\nTransmission, LLC, 153 FERC ¶ 61,295 at P42 (2015). As\nFERC frames its approach, “the date an order is issued under\nOrder No. 679 reflects the separating point between the period\nin which an applicant is entitled to the full Abandoned Plant\nIncentive authorized under Section 219 and 50 percent\nrecovery under Opinion No. 295’s cost-sharing policy.” Pac.\nGas & Elec. Co., 163 FERC ¶ 61,187 at P14.\n\n B. The Declaratory Order\n\n SDG&E is a public utility that provides energy services in\nCalifornia. It brings electricity to approximately 300,000\nresidents in Southern Orange County through a single\nsubstation. Around 2008, the utility grew concerned that its\ncustomers would be at risk of service unreliability and even\nprolonged power outages should the sole substation falter.\nSDG&E therefore proposed the South Orange County\nReliability Enhancement (SOCRE) Project to rebuild and\nupgrade the substation, and replace and relocate several\ntransmission and distribution line segments.\n\n The California Independent System Operator (CAISO) is\na public entity that manages electricity transmission in\nCalifornia and operates transmission facilities owned by\nutilities such as SDG&E. In May 2011, the CAISO included\nthe SOCRE Project in its 2010-2011 Transmission Plan.\n\n 11\n SDG&E thereafter applied for various federal, state, and\nlocal permits for the SOCRE Project, including a Certificate of\nPublic Convenience and Necessity from the state regulatory\nauthority, the California Public Utilities Commission (CPUC).\nAccording to SDG&E’s Vice President, obtaining a Certificate\nof Public Convenience and Necessity is “[a]s a general matter\n. . . a lengthy and complex process” that includes an\nenvironmental review of the project proposal. Test. of David\nGeier, J.A. 64. SDG&E later claimed that the California Public\nUtilities Commission’s approval process presented “the\ngreatest level of risk and uncertainty” for the SOCRE Project.\nIncentive Petition 12, J.A. 40. SDG&E applied for a Certificate\nof Public Convenience and Necessity in May 2012.\n\n In September 2015, SDG&E sought a declaratory order\nfrom FERC establishing its eligibility for the Abandonment\nIncentive. SDG&E’s petition stated that it had “already\nexpended substantial resources, both direct spending and\ninternal labor” on the project, to the tune of approximately $31\nmillion. See Incentive Petition 16, J.A. 44. It noted that it had\nspent that much—and presumably procured whatever\nfinancing required to do so—“without assurance of cost\nrecovery for these development costs.” Id. As SDG&E\ndescribed the situation, a “substantial percentage of those costs\nwere incurred on the preparation of the utility’s development\nplan, and were incurred with no certainty that SDG&E’s\ndevelopment plan would be approved by the CPUC.” Id. at 16-\n17, J.A. 44-45. SDG&E does not appear to have applied for\nany other incentive, such as CWIP or pre-commercial\noperations cost recovery under Section 35.35(d)(1)(ii) or (iii).\n\n The Commission filed a Federal Register notice inviting\ninterventions and protests regarding SDG&E’s petition for the\nAbandonment Incentive. See San Diego Gas & Electric Co.;\nNotice of Petition for Declaratory Order, 80 Fed. Reg. 58,729-\n\n 12\n02 (2015). The California cities of Anaheim, Azusa, Banning,\nColton, Pasadena, and Riverside (Six Cities) filed a formal\nprotest that invoked the Commission’s decision in PJM II and\nargued that here, as there, the Commission should not apply the\nAbandonment Incentive to authorize SDG&E to recover from\nratepayers sunk costs SDG&E had previously incurred. See\nProtest on Behalf of the Cities of Anaheim, Azusa, Banning,\nColton, Pasadena, and Riverside, California (Oct. 23, 2015),\nJ.A. 179, 182. SDG&E had made a voluntary business decision\nto spend $31 million on the SOCRE project without any order\nfrom the Commission declaring its eligibility for the incentive,\nthe Six Cities argued, so no nexus had been shown and\nconsumers should not be on the hook to reimburse it for those\ncosts in the event the project is abandoned. See id. at 3-4, J.A.\n181-82.\n\n In its March 2, 2016, declaratory order, the Commission\ndetermined that, should the SOCRE project be cancelled or\nabandoned for reasons beyond SDG&E’s control, the utility\nwould be eligible to recover all of its prudently incurred costs\nassociated with the SOCRE project going forward. See San\nDiego Gas & Elec., 154 FERC ¶ 61,158 at PP17-18 (2016)\n(Declaratory Order). As for the costs that SDG&E had already\nincurred, the Commission held that SDG&E could share that\nburden with ratepayers under FERC’s 1988 Opinion No. 295,\nwhich granted utilities authority to charge ratepayers half the\nprudently incurred costs of abandoned transmission facilities.\nSee id. at P18; New Eng. Power Co., Op. No. 295, 42 FERC\n¶ 61,016. The Commission reasoned that, while “the risks that\nmay necessitate abandonment have generally been known to\nSDG&E since the project was included in the CAISO 2010-\n2011 Transmission Plan, [SDG&E] did not seek approval for\nthe Abandonment Incentive for approximately four years.”\nDeclaratory Order, 154 FERC ¶ 61,158 at P20. The\nCommission highlighted SDG&E’s acknowledgement that it\n\n 13\nhad incurred the costs “without assurance of cost recovery.” Id.\n(quoting Incentive Petition 16, J.A. 44). Allowing recovery of\nSDG&E’s past investment under these circumstances would\ntherefore be “contrary to the general policy rationale that\nincentives are designed to encourage future transmission\ninvestments” and “would violate the objective of benefitting\nconsumers.” Id. at P20 & n.48 (quoting Incentive Ratemaking\nfor Interstate Natural Gas Pipelines, Oil Pipelines, and Elec.\nUtils., 61 FERC ¶ 61,168, at ¶ 61,589 (1992)).\n\n The Commission denied SDG&E’s request for rehearing.\nSee San Diego Gas & Elec., 157 FERC ¶ 61,056 (2016)\n(Rehearing Order). In the Rehearing Order, the Commission\nreiterated that, under the Incentive Rule and the PJM II order\napplying it, the Abandonment Incentive covered costs incurred\nafter the date of the order granting the incentive. Id. at PP10-\n15 (citing PJM II, 142 FERC ¶ 61,156 (2013)). The result, the\nCommission reasoned, was rooted in the Incentive Rule’s\nnexus test, which requires the applicant “to demonstrate that\nthe incentives are rationally related with the investments being\nproposed.” Id. at P16 (quoting Order No. 679, 116 FERC ¶\n61,057 at P48). Thus, when SDG&E asserted that it incurred\nthe $31 million in prior costs without assurance of recovery, “it\nconceded that the Abandonment Incentive it seeks here is not\nrationally related to those previously incurred costs.” Id. at\nP17. The Commission determined that, for costs already\nincurred, the nexus test was not met because there was no\nshowing that “the incentive was [] needed to encourage\nSDG&E to make the investment in question.” Id. at P19.\n\n This petition for review followed. Pacific Gas & Electric\nCompany and Southern California Edison Company\nintervened in support of SDG&E. The Six Cities intervened in\nsupport of the Commission.\n\n 14\n II.\n\n A. Standing\n\n We begin by assuring ourselves of jurisdiction over the\npetition. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.\n83, 94-95 (1998). Under Section 313(b) of the FPA, we have\njurisdiction to review petitions only from parties “aggrieved”\nby an order of the Commission. 16 U.S.C. § 825l(b); cf.\nPNGTS Shipper’s Grp. v. FERC, 592 F.3d 132, 138-39 (D.C.\nCir. 2010) (finding a virtually identical provision in the Natural\nGas Act to be “jurisdictional”). And, under Article III, a\npetitioner’s standing to pursue its claim in federal court\ndepends on its identification of a concrete and particularized\ninjury that is fairly traceable to the challenged action and would\nbe redressable by a favorable court decision. See Lujan v.\nDefenders of Wildlife, 504 U.S. 555, 560-61 (1992). A party is\ndetermined to be aggrieved within the meaning of Section\n313(b) on the same showing of injury that suffices to establish\nstanding. See Exxon Mobil Corp. v. FERC, 571 F.3d 1208,\n1219 (D.C. Cir. 2009).\n\n The Commission’s orders concern SDG&E’s eligibility to\nrecover a benefit in the event of a future project cancellation or\nabandonment that may or may not occur. But its claimed harm\nis not speculative insofar as SDG&E suffers a concrete and\nimmediate economic injury stemming from the demonstrated\nrisk of project cancellation. The abandonment may never\noccur, but there is a concrete dispute over the scope of the\ncurrent beneficial assurance due to SDG&E. In its declaratory\norder, FERC recognized that SDG&E faces real and present\ncosts due to the risk of a future halt to the project, and FERC\ndetermined that those costs justified application of the\nAbandonment Incentive. No party disputes that determination;\nall agree that project-cancellation risk makes SDG&E’s\n\n 15\nSOCRE project a less attractive investment for outside funders\nand partners, increasing costs to SDG&E. See Pet’r Br.\nAddendum B, Decl. of David Geier ¶¶ 11-15. We have\npreviously held this sort of current economic injury from\nidentified risk of future harm sufficient to support standing, see\nGreat Lakes Gas Transmission v. FERC, 984 F.2d 426, 430-31\n(D.C. Cir. 1993), and do so again here.\n\n B. Analysis\n\n In the declaratory order under review, the Commission\nheld that SDG&E had shown a nexus only between the\nAbandonment Incentive and the utility’s expenditures on the\nSOCRE project going forward. See Declaratory Order, 154\nFERC ¶ 61,158 at PP17, 19. On rehearing, the Commission\nreiterated that the Abandonment Incentive’s nexus test requires\na showing that authorizing the incentive will “encourage action\nthat has not yet occurred.” See Rehearing Order, 157 FERC ¶\n61,056 at P15. No such nexus existed between the\nAbandonment Incentive and SDG&E’s sunk costs, because\nSDG&E admitted that it incurred those costs “without\nassurance of cost recovery.” Id. at P17 (quoting Incentive\nPetition 16, J.A. 44). The Commission thought it “reasonable\nto conclude that if SDG&E in fact spent $31 million in\ndevelopment costs over an approximately four-year period, a\nsignificant amount of money over a significant time period, an\nAbandonment Incentive was not needed to encourage that\ninvestment.” Id. at P19. The Commission therefore held that,\nin SDG&E’s case, insofar as the application sought the\nAbandonment Incentive for the portion of the project that was\nalready financed and paid for, it lacked the requisite nexus to\nthe facilitation of new investment, such as by making capital\nmore readily and cheaply available.\n\n 16\n SDG&E challenges the order, claiming that the Incentive\nRule itself makes an “offer” of incentive treatment, Pet’r. Br.\n12, and that any utility’s qualifying application thus constitutes\nbinding acceptance entitling it to all prudently incurred costs.\nSDG&E insists that, for the Abandonment Incentive, the rule\nestablishes a “fixed 100 percent recovery rate” of costs of the\nentire “transmission facilities” subject to abandonment. Pet’r\nBr. 13, 23, 34. It thus claims a right, in the event the SOCRE\nproject should in the future be abandoned for reasons beyond\nSDG&E’s control, to recover all development costs from the\nProject’s inception, including those costs incurred before the\nCommission deemed it eligible for the Abandonment\nIncentive. Pet’r Br. 31.\n\n The Commission responds that the Rule sets the general\nterms, but a utility’s entitlement depends on FERC’s approval.\nIt could hardly be otherwise. Electricity transmission\ndevelopment projects tend to be complex, varied, and\nexpensive—costing many millions or even billions of dollars\nand taking years to complete. The Incentive Rule provides for\nan array of incentive rate treatments, including a catchall “other\nincentives” category, see 18 C.F.R. § 35.53(d)(1)(viii),\navailable for customization into an application package that\nFERC approves to the extent it meets a utility’s demonstrated\nneed. An applicant must show a nexus between each incentive\nit seeks and that incentive’s role in financing reliable and\neconomically efficient transmission infrastructure. The\nCommission found that nexus to the Abandonment Incentive\nlacking with respect to SDG&E’s investments already made.\n\n The Commission’s approach comports with both the\nFederal Power Act and the Incentive Rule. When Congress\namended the Act in 2005, it called on FERC to promulgate a\nrule to “benefit[] consumers by ensuring reliability and\nreducing the cost of delivered power by reducing transmission\n\n 17\ncongestion.” 16 U.S.C. § 824s(a); see 18 C.F.R. § 35.35(a)\n(same). The Commission in the preamble to the Incentive Rule\nelaborated that it would not authorize incentives that “simply\nincreas[e] rates in a manner that has no correlation to\nencouraging new investment.” Order No. 679, 116 FERC ¶\n61,057 at P6. Instead, incentives must be “rationally tailored”\nto the relevant investment and will not function as a “bonus for\ngood behavior.” Id. at P26. The Commission has underscored\nthe key role of the nexus requirement “to ensure that incentives\nare not provided in circumstances where they do not materially\naffect investment decisions.” Order No. 679-A, 117 FERC ¶\n61,345 at P25. We stressed in Connecticut Department of\nPublic Utility Control v. FERC that the nexus test is not merely\n“fig leaf for accepting any link, however nominal or trivial,”\nbut must be shown to “affect the transmission owners’ conduct\nor benefit consumers.” 593 F.3d 30, 33-34 (D.C. Cir. 2010).\n\n The Commission’s order aligns with its “longstanding\npolicy that rate incentives must be prospective and that there\nmust be a connection between the incentive and the conduct\nmeant to be induced.” Cal. Pub. Utils. Comm’n v. FERC, 879\nF.3d 966, 977 (9th Cir. 2018) (citing S. Cal. Edison, 114 FERC\n¶ 61,018 (2006); ISO New Eng., 96 FERC ¶ 61,359 (2001);\nNew Eng. Power Pool, 97 FERC ¶ 61,093 (2001)). Indeed, the\nCommission made clear in a policy statement nearly three\ndecades ago that “[i]ncentive rate plans must be prospective.”\nSee Incentive Rate Making for Interstate Natural Gas\nPipelines, Oil Pipelines, and Elec. Utils., 61 FERC ¶ 61,168,\nat ¶ 61,599. Presaging the very reasoning it invoked in the\norder under review, the Commission declared: “A ‘reward’ for\npast behavior,” after all, “does not induce future efficiency and\nbenefit consumers.” Id. Our review of rate-based incentive\nprograms has never questioned the “obvious proposition” that\nthe Commission “will not, and cannot, create incentives to\n\n 18\nmotivate conduct that has already occurred.” Me. Pub. Utils.\nComm’n v. FERC, 454 F.3d 278, 289 (D.C. Cir. 2006); see\nConn. Dep’t of Pub. Util. Control, 593 F.3d at 34-35.\n\n The Incentive Rule makes a palette of incentive rate\ntreatments available to utilities. Transmission infrastructure\ninvestment projects may be eligible for one or more of the\nseven types of incentives the Rule describes, 18 C.F.R. §\n35.35(d)(1)(i)-(vii), or for some needed “other incentive” not\nwithin the Rule’s stated categories, id. § 35.35(d)(1)(viii). The\nburden is on the utility to show that it qualifies for each\nrequested incentive rate. The Rule’s incentives must be sought\nby application and secured by a FERC order. While the utility\nneed not demonstrate “but for” causation between a particular\ninvestment and the incentive it seeks, see Order No. 679, 116\nFERC ¶ 61,057 at P48, the Commission must ensure that\n“incentives are not provided in circumstances where they do\nnot materially affect investment decisions,” Order No. 679-A,\n117 FERC ¶ 61,345 at P25. To that end, the nexus test requires\nan applicant to show “that there is a relationship between the\nrate treatments sought and the attraction of new capital.” Id. at\nP17.\n\n The logic of the incentive rate treatment at issue here—the\nAbandonment Incentive—supports the Commission treating it\nas unwarranted for SDG&E’s pre-order costs. In the ordinary\ncourse, utilities recover costs through the rates they charge for\ndelivered power. A transmission infrastructure project that is\nabandoned never delivers power, so its costs might not\nordinarily be chargeable to ratepayers. Project-abandonment\nrisk can, however, impede major, cost-effective transmission\nupgrades that are in ratepayers’ interests. Investors hesitate to\ninvest in large, expensive projects that may fail before they\never earn a dime. And developers of projects facing\nabandonment risk—a kind of risk that, by definition, is major\n\n 19\nand uncontrollable—will pay more for capital. FERC’s\nAbandonment Incentive reflects the recognition that that, given\nthe elevated capital costs ratepayers shoulder for all\ninfrastructure investment projects at risk of abandonment,\nratepayers benefit by, in effect, paying to insure potential\ninvestors against such risk. Specifically, the Abandonment\nIncentive serves ratepayers’ interests when the aggregate\nsavings (from all qualifying projects’ lower ex ante capital\ncosts, producing more needed reliability improvements) more\nthan offset losses (from projects that must be abandoned and\nbilled to ratepayers). In other words, the logic of authorizing\nutilities to charge ratepayers for the occasional abandoned\nproject is that ratepayers enjoy offsetting benefits from\nimproved access to capital on better terms for all other qualified\ntransmission infrastructure upgrades.\n\n SDG&E acknowledges that it incurred substantial costs on\nthe SOCRE project before it secured eligibility for the\nAbandonment Incentive. Where, as here, a project faces\nabandonment risk, investors would ordinarily charge risk\npremiums unless they had assurance of abandoned-plant rate\nrecovery. Yet there is no evidence that SDG&E’s four years’\nworth of investment in the project was beneficially affected by\nany assurance provided through the Abandonment Incentive.\nIndeed, as FERC recognized, SDG&E’s claim that the\nIncentive Rule facilitated its $31 million in expenditures before\nFERC authorized it to charge incentive rates is belied by\nSDG&E’s own acknowledgement that it incurred those costs\n“without assurance of cost recovery.” Incentive Petition 16,\nJ.A. 44; Declaratory Order, 154 FERC ¶ 61,158 at P20. The\nutility’s Vice President repeatedly emphasized in the future\ntense that the incentive “will reduce the financial and\nregulatory risks associated with” transmission investment in\nthe SOCRE Project. Test. of David Geier, J.A. 74 (emphasis\nadded); accord id. J.A. 75 (“As a general matter, assurance that\n\n 20\nprudently incurred costs can be recovered should abandonment\nbe required for a reason beyond the developer’s control,\nsupports investment of significant equity capital on project\ndevelopment.”). But SDG&E made no showing how future\nrisk-reduction from the Abandonment Incentive affected its\ninvestments already made.\n\n By insisting that the timing of a declaratory order matters\nin granting the Abandonment Incentive, FERC reasonably\naccounts for ratepayers’ interests. Where FERC commits\nratepayers to cover costs of abandoned projects, it should at\nleast demand that utilities maximize ratepayers’ benefits from\nthose commitments. The longer a utility waits to secure\nabandoned-plant rate authority and the more it spends before\ndoing so, the higher its costs of capital in constructing\nsuccessful projects—costs that ultimately are passed on to\nratepayers. Nothing in the statute or Rule requires that FERC\nauthorize charging ratepayers ex post (via rate-recovery for\nfailed projects) in the name of generating ex ante benefits\n(capital availability at lower cost) for a portion of those ex ante\nbenefits (superior investment terms during the first four years\nof the project) that they never enjoyed. Put differently,\nratepayers who stand to be billed for risk premiums paid over\nseveral years should not also be called on to pay for a\nretroactive hedge against the very same risk.\n\n SDG&E raises several objections, none of which we find\npersuasive.\n\n First, SDG&E asserts that the regulation itself, rather than\nthe Commission’s project-specific declaratory order, amounts\nto a legally binding “offer” of rate treatment. See Pet’r Br. 43-\n46; Pet’r Int. Br. 3. Insisting that “[t]he text of Order No. 679\ncould not be clearer,” Pet’r Br. at 44, SDG&E quotes the\npreamble’s assertion that “this [Incentive] Rule . . . provides\n\n 21\nincentives for transmission infrastructure,” Order No. 679, 116\nFERC ¶ 61,057 at P1. SDG&E observes that “a utility can look\nto 18 C.F.R. § 35.35(d)(1)(vi), determine that its project is\nlikely to meet the eligibility criteria, and rely on that\nexpectation as motivation to proceed with the project.” Pet’r\nBr. 45. Of course, broadly speaking, SDG&E is correct that\nthe mere existence of the Incentive Rule is a general\ninducement to investment in transmission infrastructure. So,\ntoo, low home-mortgage rates generally encourage\nhomebuyers. But not every applicant is automatically entitled\nto every generally available deal.\n\n SDG&E is simply wrong that the Incentive Rule by itself\n“guarantees” any rate treatment or entitles a utility to any\nspecific incentive. As the Rule’s preamble squarely\nannounces: “The Final Rule does not grant incentive-based\nrate treatments or authorize any entity to recover incentives in\nits rates. Rather, it informs potential applicants of incentives\nthat the Commission is willing to allow when justified.” Order\nNo. 679, 116 FERC ¶ 61,057 at P20. The Commission\nexpressly cautioned utilities that “not every incentive identified\nherein will be necessary or appropriate for every new\ntransmission investment.” Id. at P6; see Pac. Gas & Elec. Co.,\n163 FERC ¶ 61,187 (recognizing Abandonment Incentive\neligibility of some projects but not others).\n\n Second, SDG&E argues that the Incentive Rule’s\nrecognition of two distinct procedural pathways for seeking\nCommission authorization for incentive rates means that the\ntiming of a declaratory order that a utility seeks under the two-\nstep option cannot affect the scope of eligibility for the\nAbandonment Incentive. As described above, a utility may\napply for at least some of the incentives in a one-step process,\nby seeking a rate adjustment under Section 205 of the FPA. Or,\nthe utility may follow a two-step procedure by first seeking a\n\n 22\ndeclaratory order establishing its eligibility for one or more\nincentives, and later seeking a corresponding rate adjustment.\nSee Order No. 679, 116 FERC ¶ 61,057 at PP76-79. SDG&E\ncontends that the Commission’s application of the nexus test\nconflicts with the Rule by effectively foreclosing applicants\nfrom seeking the Abandonment Incentive through a Section\n205 rate order alone, thereby “nullifying that one-step\nprocedural pathway.” Pet’r Br. at 39. SDG&E observes that a\nutility could only conceivably apply for a determinate rate\nincrease under Section 205 pursuant to the Abandonment\nIncentive after abandonment had in fact occurred, by which\ntime it would have necessarily already gone ahead with the\nproject without the hedge provided by that incentive. Thus, if\nthe one-step procedural pathway means anything, SDG&E\ncontends, it must—contrary to the challenged approach—\nassure recovery in the absence of any declaratory order and, a\nfortiori, cover pre-declaratory order costs.\n\n Not so. Nothing in the Rule requires that both one-step\nand two-step pathways be equally appropriate for every type of\nincentive. SDG&E appears to be correct that the Abandonment\nIncentive is only available through the two-step pathway,\nwhich involves securing a declaratory order in advance and\nlater, after project abandonment, petitioning for a rate under\nSection 205. That is because, in order to justify it as a spur to\ninvestment, the Abandonment Incentive will ordinarily need to\nbe in place at the relevant time, when uncontrollable future\nrisks would otherwise deter potential investors and put a risk\npremium on capital—i.e., before the relevant costs have been\nsuccessfully financed. See Policy Statement, 141 FERC\n¶ 61,129 at P14. That reality does not, however, render the\nIncentive Rule’s “one-step ‘option’ . . . no option at all.” Pet’r\nBr. at 38. The one-step pathway can alone suffice where an\napplicant seeks rate treatment under the Accelerated\nDepreciation or Deferred Cost Recovery Incentive provisions,\n\n 23\nsee 18 C.F.R. § 35.35(d)(1)(v), (vii). And perhaps a Section\n205 petition would suffice to enable an incumbent utility to\nrecover CWIP or pre-commercial operations costs for its new\nconstruction. See 18 C.F.R. § 35.35(d)(1)(ii), (iii). While those\nincentives might also be secured by a declaratory order in\nadvance of a Section 205 petition, they differ from the\nAbandonment Incentive to the extent that they do not operate\nas hedges against future risk followed by rate-based recovery\nonly when and if that risk materializes.\n\n Third, SDG&E contends that we must reject the\nCommission’s approach because the Incentive Rule requires a\nshowing of a nexus to “the project” as a whole, or the entire\n“transmission facilities” under development, rather than\nseparately to the utilities’ costs incurred before and after the\ndeclaratory order. See Pet’r Reply Br. 11-12. SDG&E points\nto the Incentive Rule’s introductory language directing\napplicants to demonstrate how the package of incentives they\nseek is “tailored to address the demonstrable risks or challenges\nfaced by the applicant in undertaking the project,” 18 C.F.R. §\n35.35(d) (emphasis added), and to the Abandonment Incentive\nsubsection of the Rule, which refers to “transmission\nfacilities,” id. § 35.35(d)(vi) (emphasis added); see Pet’r Reply\nBr. 11. But SDG&E takes that language out of context. There\nis no conflict between the Rule’s requirement that an applicant\nidentify risks faced by its project or facilities as a whole, and\nthe Commission’s determination that the potential public\nbenefit of the Abandonment Incentive supports applying it only\nprospectively. The Commission here did nothing at odds with\nthe Incentive Rule’s references to entire projects or facilities.\nIt considered the full scope of SDG&E’s request, assessed risks\nthat the SOCRE project as a whole would have to be\nabandoned, and determined that further investment in the\nproject would be encouraged by authorizing SDG&E, in the\n\n 24\nevent of such abandonment, to recover from ratepayers\nSDG&E’s investments after the effective date of the order.\n\n Fourth, SDG&E similarly contends that the declaratory\norder conflicts with the Incentive Rule by authorizing less than\nthe “100 percent” recovery stated in 18 C.F.R. § 35.35(d)(vi).\nDespite the Rule’s two references to “100 percent,” however,\nit is obvious that the relevant subsections do not require an all-\nor-nothing approach. As already discussed, applicants often\nobtain packages of more than one incentive. If the Commission\nwere to find a project eligible for rate-based reimbursement for\nCWIP, and for the Abandonment Incentive—each of which\nauthorizes recovery of “100 percent of prudently incurred”\ncosts, see 18 C.F.R. § 35.35(d)(1)(ii), (vi)—the Rule would not\nsupport a rate pursuant to the Abandonment Incentive that\nincluded 100 percent of the costs ratepayers had already been\ncharged pursuant to the CWIP allowance. See Order No. 679,\n116 FERC ¶ 61,057 at P166. The Rule’s reference to the\navailability of rate authority for “100 percent” of costs simply\ncannot be read to demand all-or-nothing approvals, foreclosing\nauthorization for something less where circumstances so\ndemand.\n\n Rather, the Commission grants incentive rate authority\n“when justified” on a “case-by-case basis” in orders tailored to\nthe demonstrated needs of each project. See Order No. 679,\n116 FERC ¶ 61,057 at P20; Order No. 679-B, 119 FERC ¶\n61,062 at P18. Indeed, the Incentive Rule “requires applicants\nto tailor their proposals to fit the facts of their particular case,”\nOrder No. 679, 116 FERC ¶ 61,057 at P5, such that “the\nincentive package as a whole results in [the] just and reasonable\nrate” mandated by the Rule, id. at P2. See 18 C.F.R. § 35.35(d)\n(requiring that the incentives be “tailored to address the\ndemonstrable risks” of each project). These overarching\nrequirements necessarily call on applicants to demonstrate\n\n 25\nneed, and they afford some flexibility to the Commission to\nlimit the incentive-rate authority it grants to match that need.\nJust as the Incentive Rule’s text permits the Commission to\ngrant less than 100 per cent rate authority in order to reconcile\nmultiple incentives, and to devise “other,” case-specific\nincentives for worthy projects, see 18 C.F.R. §\n35.35(d)(1)(viii), it contemplates that the Commission will\ntailor its grants of rate authority to particular features of an\napplicant’s demonstrated needs.\n\n Finally, we see no merit to SDG&E’s argument that the\nCommission’s treatment of the Abandonment Incentive in\nprior cases renders the orders below arbitrary and capricious.\nThe dissent objects that FERC twice granted pre-order costs\n“without imposing the limitation it applied to San Diego.”\nDiss. Op. 10 (citing Pac. Gas & Elec. Co., 137 FERC ¶ 61,193\n(2011), and S. Cal. Edison Co., 137 FERC ¶ 61,252 (2011)).\nIn those early Abandonment Incentive cases, the declaratory\norders made no express determination regarding effective\ndates, and no party objected to the utility’s recovery for the\nperiod at issue. See Pac. Gas & Elec. Co., 123 FERC ¶ 61,067\n(2008); S. Cal. Edison Co., 121 FERC ¶ 61,168 (2007).\nAlthough it drew a slightly different line in Pacific Gas &\nElectric—at the application for rather than grant of the\nAbandonment Incentive declaratory order—FERC ultimately\nrelied on the same basic logic it employed here to hold that\ncosts already incurred were not recoverable. See 137 FERC ¶\n61,193 at PP 2, 19.\n\n SDG&E also contends that several other cases in fact\ngranted pre-order costs pursuant to the Abandonment\nIncentive. But in most of its cited cases, no party filed a protest\nobjecting on this ground, as the Six Cities did here. See, e.g.,\nNextEra Energy Transmission W., LLC, 154 FERC ¶ 61,009\n(2016); ALLETE, Inc., 153 FERC ¶ 61,296 (2015); S. Cal.\n\n 26\nEdison, 137 FERC ¶ 61,252; Pac. Gas & Elec., 137 FERC ¶\n61,193. We have previously held that, “[i]n the absence of\nprotests,” the Commission’s decision to approve rate increases\ndoes not amount to “policy or precedent.” Gas Transmission\nNw. Corp. v. FERC, 504 F.3d 1318, 1320 (D.C. Cir. 2007); see\ngenerally Cooper Industries, Inc. v. Aviall Services, Inc., 543\nU.S. 157, 170 (2004) (“Questions which merely lurk in the\nrecord, neither brought to the attention of the court nor ruled\nupon, are not to be considered as having been so decided as to\nconstitute precedents.”) (quoting Webster v. Fall, 266 U.S. 507,\n510 (1925)). The dissent’s citation to ANR Storage Co. v.\nFERC, 904 F.3d 1020 (D.C. Cir. 2018), is not to the contrary.\nDiss. Op. 11. In ANR Storage, the Commission had attempted\nto distinguish its conflicting market-power determinations\nregarding two natural gas storage providers, each with\n“virtually indistinguishable” market power in the same market.\nId. at 1025. The sole underlying issue was squarely presented\nand necessarily resolved by the agency. Id. at 1025-26. In the\nFERC cases cited by SDG&E, in contrast, the question whether\npre-order costs were categorically available was neither\ncontested nor necessarily resolved. What is more, in NextEra\nEnergy, ALLETE, and Southern California Edison, the\nCommission did not discuss the pre-order cost issue in granting\nthe Abandonment Incentive. See NextEra Energy, 154 FERC\n¶ 61,009 at P27; ALLETE, 153 FERC ¶ 61,296 at P29; S. Cal.\nEdison, 121 FERC ¶ 61,168 at P71.\n\n ***\n\n Because the Commission’s application of the\nAbandonment Incentive is consistent with the Rule and\nsupported by substantial evidence, SDG&E’s petition is\ndenied.\n\n So ordered.\n[END_CASE]",
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4,581,517 | ESTATE OF Earnest Lee BOYLAND, Et Al., Appellants v. UNITED STATES DEPARTMENT OF AGRICULTURE, Et Al., Appellees | Estate of Boyland v. U.S. Dep't of Agric. | 2019-01-15 | 17-5082 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Griffith, Pillard, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Circuit Judge PILLARD", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 1, 2018 Decided January 15, 2019\n\n No. 17-5082\n\n ESTATE OF EARNEST LEE BOYLAND, ET AL.,\n APPELLANTS\n\n v.\n\n UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,\n APPELLEES\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:15-cv-01112)\n\n\n Robert E. Hauberg Jr. argued the cause and filed the briefs\nfor appellants. Paul A. Robinson Jr. entered an appearance.\n\n Jennifer L. Utrecht, Attorney, U.S. Department of Justice,\nargued the cause for appellees. With her on the brief was\nCharles W. Scarborough, Attorney.\n\n Stephen P. Murphy was on the brief for appellee EPIQ\nClass Action & Claims Solutions, Inc.\n\n Before: GRIFFITH and PILLARD, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Circuit Judge PILLARD.\n\f 2\n PILLARD, Circuit Judge: Plaintiffs, representing the\nestates of black male farmers, seek to submit claims of past\ndiscrimination in agricultural credit programs to a claims-\nprocessing framework set up to resolve Hispanic and female\nfarmers’ credit discrimination claims. In this lawsuit, they\nassert that the claims-processing framework itself\ndiscriminatorily excluded them. In short, they raise a\ndiscrimination claim about the handling of discrimination\nclaims. They therefore identify two distinct discrimination\nclaims, one nested within the other: the underlying credit\ndiscrimination claims, and the current challenge to the\nframework. Plaintiffs argue that the district court failed to\nassume the merits of their claim when it held they lacked\nstanding to bring the current challenge. That is incorrect.\nPlaintiffs lack standing to challenge the framework because\nthey have no live underlying credit discrimination claims to\npresent there.\n\n Plaintiffs sued the United States Department of\nAgriculture (“USDA” or “the Department”) and Epiq Class\nAction & Claims Solutions, Inc. (“Epiq”), the firm USDA hired\nto administer the framework, contending they unlawfully\ndiscriminated by affording women and Hispanic claimants\nexclusive access to a remedial claims framework, the very\nraison d’être of which was to redress USDA’s sex and ethnicity\ndiscrimination against female and Hispanic farmers. Plaintiffs\nallege that the farmers whose estates they represent\nexperienced discrimination in USDA agricultural credit and\nbenefit programs—based not on sex or Hispanic ethnicity, but\non their black racial identity. That claim is certainly plausible.\nIt is well established that, during the 1980s and 1990s, USDA\nengaged in systemic discrimination on multiple grounds\nagainst many of the farmers its programs were supposed to\nserve. In fact, it was a class action lawsuit by black farmers\n(the “Black Farmers” suit) that first illuminated USDA’s\n\f 3\nrampant credit discrimination and inspired parallel lawsuits by\nNative American, female, and Hispanic farmers. And USDA\nmodeled the framework at issue here on the claims-processing\nsystem it set up in settlement of the Black Farmers’ class\naction.\n\n Plaintiffs in this case never submitted claims in the Black\nFarmers remedial process. When they instead sought to present\ntheir claims in the parallel framework for claims of\ndiscrimination against women and/or Hispanic farmers, the\nclaims processor turned them away. Plaintiffs contend that\nUSDA and Epiq thereby invidiously discriminated against\nthem based on their sex and race. They claim that USDA\nviolated the constitutional equal protection guarantee and that\nEpiq violated the federal statutory prohibition against\ndiscrimination by a program or activity that receives federal\nfinancial assistance.\n\n In assessing standing, we assume that plaintiffs could\nprevail on those claims. Plaintiffs’ standing nevertheless fails\nfor want of redressability. The claims-processing framework\nfor women and Hispanic farmers, like the parallel one for black\nfarmers, can only make good on live claims. Thus, even\nassuming plaintiffs succeeded in invalidating the framework’s\nchallenged sex and ethnicity limitations, they could not benefit\nunless they had unexpired claims of credit discrimination to\nprocess there.\n\n Because plaintiffs fail to allege that they have any live\nclaims to process in the framework they challenge, the harm\nthey assert from being excluded is not redressable. Plaintiffs’\nnested claims target discrimination by USDA during the 1980s\nin violation of the Equal Credit Opportunity Act (ECOA),\nwhich prohibits discrimination in credit transactions. 15\nU.S.C. § 1691 et seq. ECOA’s five-year statute of limitations\n\f 4\nhas long since run on most claims of that vintage. Congress in\n1998 legislated an important but limited exception to ECOA’s\ntime bar for farmers who had complained of discrimination to\nUSDA between 1981 and July 1997—a period when, Congress\nfound, the Department’s internal system for addressing\ndiscrimination claims was dysfunctional. Plaintiffs do not\nallege they sought to press their claims to USDA before July\n1997, so they are ineligible to benefit from Congress’s tolling\nof the limitations period for farmers who did. Their decades-\nold claims are time barred.\n\n Even if we assumed that plaintiffs in fact took steps before\n1997 to preserve their claims and merely neglected to so\nspecify in their complaint, they would still be out of luck.\nTogether with everything else they allege, that would mean—\nas the district court assumed—that they were members of the\nplaintiff class in the Black Farmers’ lawsuit. Any credit\ndiscrimination claim a member of the Black Farmers plaintiff\nclass may have had during the relevant period, whether or not\nactually pursued in the remedial process established under the\nBlack Farmers’ consent decree, is now precluded by that\ndecree, or, for any member who opted out, time barred. Thus,\neven if the challenged framework were not limited to women\nand Hispanic farmers, it could do nothing to redress plaintiffs’\nprecluded claims.\n\n I.\n\n A.\n\n Over the past two decades, USDA has resolved\ndiscrimination lawsuits with several different groups of\nfarmers. These lawsuits primarily challenged discrimination in\nUSDA’s lending programs in violation of ECOA. 15 U.S.C.\n§ 1691 et seq. Farmers’ bottom lines fluctuate with the weather\nand crop prices, so “many farmers depend heavily on the credit\n\f 5\nand benefit programs of the United States Department of\nAgriculture to take them from one year to the next.” Pigford v.\nGlickman (Pigford I), 185 F.R.D. 82, 86 (D.D.C. 1999)\n(footnote omitted). 1 If a farmer’s crops fail, “he may not have\nsufficient resources to buy seeds to plant in the following\nseason”; if he needs a new grain harvester, “he often cannot\nafford to buy the harvester without an extension of credit.” Id.\n“Because of the seasonal nature of farming, it also is of utmost\nimportance that credit and benefit applications be processed\nquickly or the farmer may lose all or most of his anticipated\nincome for an entire year.” Id.\n\n Public protest over discrimination in USDA’s credit and\nbenefit programs spurred the Department to investigate. That\nscrutiny uncovered a widespread pattern of discrimination in\nthe Department’s agricultural credit and benefit programs. In\n1996, then-Secretary of Agriculture Dan Glickman appointed\na Civil Rights Action Team to assess the Department’s history\nof racial discrimination and recommend changes. See id. at 88.\nThe Action Team documented extensive economic harm to\nminority farmers from discrimination in USDA programs. See\nid. at 86-88. That discrimination owed partly to USDA’s\npractice of delegating loan application decisions to small, local\ncommittees in each county. Id. at 86. The county committees\nwere far less diverse than the communities they served. Id. at\n87. USDA denied or delayed processing loan applications,\napproved insufficient amounts, discriminatorily denied access\nto loan servicing options, or imposed restrictive conditions on\nloans because of the applicants’ race, sex, or ethnicity. See\nFourth Am. Compl. 3, Love v. Veneman, No. 1:00-cv-02502\n(D.D.C. July 13, 2012), ECF No. 160 (female farmers); Eighth\n\n\n1\n Subsequent litigation in the case, not relevant here, became known\nas Pigford II. We refer to Pigford I for clarity and consistency with\nother opinions.\n\f 6\nAm. Compl. 2, Keepseagle v. Veneman, No. 1:99-cv-03119\n(D.D.C. Feb. 11, 2008), ECF No. 460 (Native American\nfarmers); Third Am. Compl. 13, Garcia v. Veneman, No. 1:00-\ncv-02445 (D.D.C. June 30, 2006), ECF No. 144 (Hispanic\nfarmers); Pigford I, 185 F.R.D. at 87 (black farmers).\n\n ECOA claims formed the core of the four lawsuits filed\nagainst USDA on behalf of black, Native American, women,\nand Hispanic farmers. ECOA creates a private right of action\nagainst a creditor, including the United States, who\n“discriminate[s] against any applicant, with respect to any\naspect of a credit transaction . . . on the basis of race, color,\nnational origin, [or] sex,” among other characteristics. Id.\n§§ 1691(a), 1691e(a).\n\n The evidence developed in the Pigford I Black Farmers\nlitigation showed that, on top of discrimination by the\ncommittees, by 1983, USDA’s Office of Civil Rights\nEnforcement and Adjudication (OCREA), which was\nresponsible for handling civil rights complaints against the\nDepartment, “essentially was dismantled and complaints that\nwere filed were never processed, investigated or forwarded to\nthe appropriate agencies for conciliation,” to the point that,\n“[i]n some cases, OCREA staff simply threw discrimination\ncomplaints in the trash without ever responding to or\ninvestigating them.” Pigford I, 185 F.R.D. at 88. The public\nlearned of the dysfunction of OCREA in a 1996 report by the\nU.S. Commission on Civil Rights; only with the publication of\nthe Civil Rights Action Team report the following year did the\ngovernment begin to reckon with the scale of the\ndiscrimination. See USDA Civil Rights Action Team, Civil\nRights at the United States Department of Agriculture 2 (1997);\nU.S. Comm’n on Civil Rights, Federal Title VI Enforcement to\nEnsure Nondiscrimination in Federally Assisted Programs 255\n(1996). The same month the Action Team released its report,\n\f 7\nUSDA’s Office of the Inspector General issued a report\ndescribing USDA’s lack of transparency and backlog of\nunprocessed complaints. See Pigford I, 185 F.R.D. at 88. “The\nacknowledgment by the USDA that the discrimination\ncomplaints had never been processed, however, came too late\nfor many African American farmers.” Id. Farmers’ legal\nrecourse was limited by the then-two-year statute of limitations\non claims of discrimination in credit transactions under ECOA.\n15 U.S.C. § 1691e(f); see Dodd-Frank Wall Street Reform and\nConsumer Protection Act, Pub. L. No. 111-203, § 1085(7), 124\nStat. 2085, 2113 (2010) (changing the statute of limitations to\nfive years).\n\n In 1998, Congress responded to the farmers’ predicament\nby lifting the time bar for farmers who had made timely efforts\nto seek administrative redress for credit discrimination but\nwere stymied by the dysfunction at USDA. See 7 U.S.C.\n§ 2279 note (Omnibus Consolidated and Emergency\nSupplemental Appropriations Act, 1999, Pub. L. No. 105-277,\n§ 741, 112 Stat. 2681) (“Appropriations Act”). The\nAppropriations Act tolled the statute of limitations for two\nyears after its passage—from October 1998 to October 2000—\nfor people who (1) alleged non-employment-related\ndiscrimination by USDA occurring between January 1, 1981,\nand December 31, 1996, and (2) had filed a complaint with\nUSDA before July 1, 1997. A farmer who complained to\nUSDA in 1983, when OCREA broke down, could have had\nvalid claims based on discrimination as far back as 1981, which\npresumably accounts for Congress’s choice of that year as the\nbeginning of the statutory date range. By confining the Act’s\nbeneficiaries to people who had sought to complain to USDA\nduring a period when the Department systematically failed to\nprocess farmers’ discrimination claims, Congress limited its\nlegislative fix to claimants blocked by OCREA’s dysfunction.\nIt did not more broadly waive the statute of limitations for all\n\f 8\nfarmers who suffered discrimination in the 1981 to 1996\nstatutory period.\n\n USDA has resolved the discrimination lawsuits of each of\nthe four groups of farmers. For each group, the only farmers\npermitted to participate in the claims-resolution processes\nestablished in response to these cases were those who had,\nbefore the suits were filed, complained in some manner of\nUSDA’s discrimination. Framework for Hispanic or Female\nFarmers’ Claims Process ¶¶ VIII.A, VIII.B, VIII.C.1.g, Love,\nNo. 1:00-cv-02502 (D.D.C. Jan. 20, 2012), ECF No. 155-1\n(“Garcia/Love Framework”); Keepseagle, No. 1:99-cv-03119,\n2001 WL 34676944, at *6 (D.D.C. Dec. 12, 2001); Pigford I,\n185 F.R.D. at 92.\n\n USDA settled with the class of Black Farmers first, in\n1999, in Pigford I. 185 F.R.D. 82. The court approved the\ncreation of a two-track dispute resolution mechanism for\ndistributing proceeds to claimants. Under that process,\nclaimants with less documentary evidence of discrimination\nreceived capped payments, while claimants with more\ndocumentary evidence could seek to prove and recover actual\ndamages. Pigford I, 185 F.R.D. at 95-97.\n\n The process established in Pigford I became a template for\nthe other cases. Next, USDA settled a class action suit with\nNative American farmers. See Keepseagle, No. 1:99-cv-\n03119, 2012 WL 13098692, at *1 (D.D.C. Dec. 28, 2012).\nSimilar lawsuits by Hispanic and female farmers followed, but\ndid not result in class-wide settlements because neither case\nwas certified as a class action. Garcia v. Johanns, 444 F.3d\n625 (D.C. Cir. 2006) (Hispanic farmers); Love v. Johanns, 439\nF.3d 723 (D.C. Cir. 2006) (female farmers). Instead, USDA\nvoluntarily created a joint claims process for both Hispanic and\nfemale farmers. See Garcia/Love Framework. Claimants who\n\f 9\nwished to recover under the Garcia/Love Framework agreed,\nin the claim packets they submitted, to release their individual\nclaims against USDA. See id. ¶ 5; Settlement Agreement,\nLove, No. 1:00-cv-02502 (D.D.C. Feb. 3, 2017), ECF No. 275-\n1.\n\n As described above, Congress did not toll all claims of\ndiscrimination arising between 1981 and 1996—only those of\nfarmers who also brought a complaint of discrimination by July\n1, 1997. See Pigford I, 185 F.R.D. at 92-93, 100. The plaintiffs\nhere have neither shown nor alleged that they made a credit\ndiscrimination complaint to the government at any time, much\nless by the deadline, as they would have had to do to qualify as\nPigford I class members.\n\n B.\n\n This case addresses whether the plaintiff black farmers\nwho, again, did not file claims in Pigford I, may now\nparticipate in the Garcia/Love Framework established to\ncompensate farmers discriminated against because of their sex\nor Hispanic ethnicity. The plaintiffs are the Black Farmers and\nAgriculturalists Association, Inc. (BFAA), which describes\nitself as “a not[-]for-profit organization created for the specific\npurpose of responding to the issues and concerns of black\nfarmers in the United States and abroad,” Appellants’ Br. 4,\nand the estates of three now-deceased black male farmers (the\nindividual plaintiffs), which allege that USDA discriminated\nagainst the farmers in lending programs during the 1980s. The\nindividual plaintiffs’ current challenge to their exclusion from\nthe Garcia/Love Framework is pressed by the farmers’ children\nand grandchildren, who are also members of plaintiff BFAA.\n\n In 2013, after the Pigford process had closed, plaintiff\nBFAA unsuccessfully sought to intervene in Garcia and Love\nto assert, among other claims, that its members were entitled\n\f 10\nunder the Equal Protection and Due Process Clauses to\nparticipate in the Garcia/Love Framework. Garcia, 304 F.R.D.\n77, 81 (D.D.C. 2014), aff’d, No. 14-5175, 2014 WL 6725751\n(D.C. Cir. Nov. 18, 2014); Love, 304 F.R.D. 85, 88 (D.D.C.\n2014), aff’d, No. 14-5185, 2014 WL 6725758 (D.C. Cir. Nov.\n18, 2014). The court denied intervention because, as relevant\nhere, BFAA lacked standing to press its constitutional\nchallenges. Garcia, 304 F.R.D. at 82. In the meantime, the\nthree individual plaintiffs submitted claims to the Garcia/Love\nFramework. They received denials explaining: “To participate\nin this Process, you must be either Hispanic/Latino or female.\n. . . [Y]ou indicated that you are an African American male.”\nJ.A. 57, 64, 72.\n\n BFAA and the individual plaintiffs then brought this\nputative class action against USDA and Epiq. They alleged\nthat USDA and Epiq violated their Fifth Amendment due\nprocess and equal protection rights, as well as Title VI of the\nCivil Rights Act of 1964, by excluding them from the\nGarcia/Love Framework because of their race and sex.\n\n The district court granted USDA’s motion to dismiss the\nconstitutional claims. It held that issue preclusion barred\nBFAA from relitigating its standing, because the Garcia/Love\ncourt had already decided the question. Estate of Boyland v.\nYoung, 242 F. Supp. 3d 24, at 30 (D.D.C. 2017); see also\nGarcia, 304 F.R.D. at 82; Love, 304 F.R.D. at 90. The\nindividual plaintiffs also lacked standing for much the same\nreason the Garcia/Love court had given for denying BFAA’s\nstanding: their lack of opportunity to present their\ndiscrimination claims was not fairly traceable to the\nGarcia/Love Framework, but to their own failure to file timely\nclaims for compensation under the Pigford settlement. The\ncourt dismissed the Title VI claim against Epiq on the ground\nthat the Garcia/Love Framework was not a “program or\n\f 11\nactivity” within the meaning of Title VI, and that Epiq had not\nreceived “federal financial assistance,” a prerequisite to the\nstatute’s applicability.\n\n II.\n\n We review de novo the district court’s dismissal for lack\nof standing, Young Am.’s Found. v. Gates, 573 F.3d 797, 799\n(D.C. Cir. 2009), and for failure to state a claim on the merits,\nHispanic Affairs Project v. Acosta, 901 F.3d 378, 385 (D.C.\nCir. 2018). The plaintiffs bear the burden of establishing our\njurisdiction, including the elements of standing. Lujan v. Defs.\nof Wildlife, 504 U.S. 555, 561 (1992). The requirements of\nArticle III standing are injury in fact, causation, and\nredressability. Id. at 560-61. Injury in fact is “an invasion of a\nlegally protected interest which is (a) concrete and\nparticularized . . . and (b) actual or imminent, not conjectural\nor hypothetical.” Id. at 560 (internal quotation marks and\ncitations omitted). The injury must also be “fairly traceable to\nthe challenged action of the defendant, and not the result of the\nindependent action of some third party not before the court.”\nId. (internal quotation marks and alterations omitted). Finally,\n“it must be likely, as opposed to merely speculative, that the\ninjury will be redressed by a favorable decision.” Id. at 561\n(internal quotation marks omitted).\n\n Plaintiffs lack standing to sue USDA and Epiq for\nexcluding them from the Garcia/Love Framework, because\nthey have failed to show that the court could redress any injury\nthey claim from that exclusion.\n\n For purposes of analyzing plaintiffs’ standing, we make\nthe requisite assumption that they would prevail on the merits\nof their claim that, in excluding them from the Garcia/Love\nFramework, USDA and Epiq impermissibly discriminated\nagainst them because of their race and sex. Whether a plaintiff\n\f 12\nhas a legally protected interest that supports standing does not\nrequire that he show he will succeed on the merits; if it did,\nevery merits loss would amount to a lack of standing. Instead,\n“when considering whether a plaintiff has Article III standing,\na federal court must assume, arguendo, the merits of his or her\nlegal claim.” Parker v. District of Columbia, 478 F.3d 370\n(D.C. Cir. 2007) (citing Warth v. Seldin, 422 U.S. 490, 501-02\n(1975)); see also Campbell v. Clinton, 203 F.3d 19, 23 (D.C.\nCir. 2000) (warning against “conflat[ing] standing with the\nmerits”).\n\n Even assuming plaintiffs here would prevail on their\nchallenge to their exclusion from the Framework, their injury\nis not redressable because they lack live credit discrimination\nclaims to present there. The district court accepted the\nplaintiffs’ description of their injury as “the loss of the\n‘opportunity . . . to present a meritorious claim for\ndiscrimination against’” USDA challenging past credit\ndiscrimination, as do we. Estate of Boyland, 242 F. Supp. 3d\nat 31 (quoting Compl. ¶¶ 74, 83, 90). That loss of opportunity\ncannot be redressed by opening the Framework to plaintiffs,\nbecause any credit discrimination claims they once had under\nECOA have been extinguished, as explained below.\n\n Plaintiffs argue that accounting for this fact in our standing\nanalysis impermissibly folds the merits of their case into\nstanding, but that is not so. Plaintiffs see error only by\nmistaking what it means to assume, in analyzing standing, that\nthey will prevail on the merits. We must provisionally treat the\nconduct plaintiffs challenge as in fact unlawful, but we do not\nassume away other, unchallenged constraints—whether of fact\nor law. Here, plaintiffs take aim at the limitation of the\nGarcia/Love Framework to victims of discrimination based on\nsex or Hispanic ethnicity. But they raise no claim against the\nFramework’s limitation to farmers who unsuccessfully sought\n\f 13\nredress of credit discrimination from USDA before 1997. 2\nThat criterion, wholly apart from the Framework’s challenged\nsex- or ethnicity-based limitation, is, whether by operation of\npreclusion or the statute of limitations, fatal to their current\nclaim.\n\n Plaintiffs read our decisions in Campbell and Animal\nLegal Defense Fund, Inc. v. Glickman (ALDF), 154 F.3d 426\n(D.C. Cir. 1998), as requiring us to accept their “legal theory”\nwhen we evaluate their standing. Appellants’ Br. 22. But those\ncases stand for the narrower proposition that a “party need not\nprove that the . . . action it attacks is unlawful . . . in order to\nhave standing to level that attack.” ALDF, 154 F.3d at 441\n(quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364,\n368 (D.C. Cir. 1998)). Thus, in Campbell we held that plaintiff\nmembers of Congress had not suffered the requisite\nindividualized injury to support their legislative standing to\nseek a declaration that President Clinton violated the\nConstitution’s War Powers Clause, even if he did in fact violate\nthe Clause. 203 F.3d at 23-24. We did not rest on the legal\n2\n Their only hint in that direction falls wide of the mark. They allege\nthat “any socially disadvantaged farmer or rancher who had not filed\na meritorious claim for relief against USDA” is still entitled to do so\n“under § 14011” of the Food, Conservation, and Energy Act of 2008.\nJ.A. 19. But section 14011 by its terms establishes no such right.\nThat provision says that “[i]t is the sense of Congress that all pending\nclaims and class actions brought against the Department of\nAgriculture by socially disadvantaged farmers or ranchers . . .\nincluding Native American, Hispanic, and female farmers or\nranchers, based on racial, ethnic, or gender discrimination in farm\nprogram participation should be resolved in an expeditious and just\nmanner.” Pub. L. 110-234, § 14011, 122 Stat. 923, 1448 (2008)\n(codified at 7 U.S.C. § 2279-2 note). It did not thereby revive\nuntimely claims, but only referred to “pending claims and class\nactions,” several of which had been filed but not yet settled when the\nbill was passed. Id. (emphasis added).\n\f 14\nconclusion that the President “did not take any actions that\nconstitute ‘war’ in the constitutional sense,” as “[t]hat analysis\n. . . conflate[d] standing with the merits.” Id. at 23 (disavowing\nconcurrence’s reasoning to that effect). In analyzing standing,\nwe had to assume that the President had violated the\nConstitution.\n\n Even assuming the Garcia/Love Framework unlawfully\ndiscriminates, as the current complaint alleges, plaintiffs’\ninjuries are not redressable. That holding is wholly consistent\nwith Campbell and ALDF. The bar plaintiffs face is no knock\nagainst their equal protection and Title VI claims against\nUSDA and Epiq. The problem, rather, is that plaintiffs have\nnot alleged that they have any live credit discrimination claims\nto press in the Framework. Plaintiffs did not make a\ndiscrimination complaint before July 1997, and are thus barred\nby ECOA’s statute of limitations. The district courts here and\nin Garcia/Love nevertheless treated the plaintiffs as Pigford I\nclass members, who by definition did make a discrimination\ncomplaint by that deadline. See Estate of Boyland, 242 F.\nSupp. 3d at 31; Garcia, 304 F.R.D. at 81; Love, 304 F.R.D. at\n88. Even if plaintiffs did make such a complaint, however, they\nare barred by the Pigford I consent decree. Plaintiffs have\narticulated a theory for opening the Framework, but they have\nno theory for resurrecting the underlying claims they wish to\nprocess there. What follows is a detailed explanation of why\nthat is so.\n\n Plaintiffs do not allege that they complained to USDA\nbefore July 1997, and, accepting that they did not do so, two\nobstacles prevent them from participating in the Garcia/Love\nFramework, over and above USDA and Epiq’s alleged\ndiscrimination. One is statutory: Congress only revived ECOA\nclaims for those farmers who made a prior discrimination\ncomplaint by July 1, 1997. Because the plaintiffs’ claims were\n\f 15\nnever revived, they are subject to ECOA’s ordinary statute of\nlimitations (which is now five years). That means that their\ncredit discrimination claims, which allege discrimination in the\n1980s, are time barred. The second obstacle is that the\nplaintiffs fail to meet the basic criteria for participation in the\nGarcia/Love Framework, race and sex aside, because the\nFramework requires claimants to have complained of\ndiscrimination by July 1997. See Status Report Ex. 20-21,\nLove, No. 1:00-cv-02502 (D.D.C. July 18, 2012), ECF No.\n162-1; Garcia/Love Framework ¶¶ VIII.A, VIII.B, VIII.C.1.g.\nIndeed, the Garcia/Love Framework includes this requirement\nbecause it was a key parameter in Congress’s resurrection of\nECOA claims. Whatever form the obstacle takes, it prevents\nthe plaintiffs from processing their claims through the\nFramework.\n\n If plaintiffs did complain of discrimination by July 1997,\nclaim preclusion or the statute of limitations would bar their\nclaims now. As for preclusion, if plaintiffs had made a pre-\nJuly 1997 race-based ECOA claim to USDA, they would have\nqualified as Pigford I class members; the Pigford I complaint\nalleged precisely the same kind of racial discrimination as these\nplaintiffs’ nested claims. See Seventh Am. Class Action\nCompl. 4-5, Pigford v. Veneman, No. 1:97-cv-1978 (D.D.C.\nOct. 26, 1998), ECF No. 92. Plaintiffs do not allege that they\nopted out of Pigford I. If they did not, their claims are barred\nby the preclusive effects of the Pigford I consent decree, which\nincluded the following release:\n\n As provided by the ordinary standards governing the\n preclusive effects of consent decrees entered in class\n actions, all members of the class who do not opt out of\n this Consent Decree . . . and their heirs, administrators,\n successors, or assigns . . . hereby release and forever\n discharge the defendant and his administrators or\n\f 16\n successors, and any department, agency, or\n establishment of the defendant, and any officers,\n employees, agents, or successors of any such\n department, agency, or establishment . . . from—and\n are hereby themselves forever barred and precluded\n from prosecuting—any and all claims and/or causes of\n action which have been asserted in the Seventh\n Amended Complaint, or could have been asserted in\n that complaint at the time it was filed, on behalf of this\n class.\n\nConsent Decree ¶ 18, Pigford, No. 1:97-cv-1978 (D.D.C. Apr.\n14, 1999), ECF No. 167 (“Consent Decree”). The court\napproved the decree, and it binds the class. See Tritz v. U.S.\nPostal Serv., 721 F.3d 1133, 1141 (9th Cir. 2013) (“Court-\napproved settlement agreements . . . have res judicata effect.”);\n21A Federal Procedure, Lawyers’ Edition § 51:258 (“[A]\nconsent judgment entered pursuant to a settlement agreement\nconstitutes a final judgment on the merits in a res judicata\nanalysis.”); 18A Charles Alan Wright, Arthur R. Miller &\nEdward H. Cooper, Federal Practice and Procedure § 4443 (2d\ned. 2002) (explaining that “settlement agreements and consent\njudgments ordinarily support claim preclusion”).\n\n The plaintiffs hypothesize that an African American\nfemale Pigford I class member who failed to present her credit\ndiscrimination claims in the Pigford process might nonetheless\nparticipate in the Garcia/Love Framework. They contend that\nmust mean that Pigford I also lacks preclusive effect on the\ncredit discrimination claims the individual plaintiffs seek to\nprocess as estates of African American male farmers. It does\nnot. The Garcia/Love Framework only processes claims that\nUSDA discriminated against claimants “due to their being\nHispanic or female.” Garcia/Love Framework ¶ I. An African\nAmerican female farmer who failed to file a Pigford claim\n\f 17\nwould have lost her opportunity to submit her race\ndiscrimination claims just as the plaintiffs here have. The\nGarcia/Love Framework would allow her recovery only for\nlosses caused by sex discrimination, a type of discrimination\nnot at issue in Pigford nor in any credit discrimination claims\nthese plaintiffs may have had against USDA. Claim preclusion\ndoes not prevent a plaintiff from asserting a ground of recovery\nthat she could not have asserted in the earlier action. See\nLittlejohn v. United States, 321 F.3d 915, 920 (9th Cir. 2003).\nIn Stewart v. Rubin, for example, the district court explained\nthat a black female class member in a class action challenging\nracial discrimination “certainly would not be precluded by the\nSettlement Agreement” from separately litigating sex\ndiscrimination claims. 948 F. Supp. 1077, 1089 (D.D.C. 1996),\naff’d, 124 F.3d 1309 (D.C. Cir. 1997).\n\n Further, the Pigford I consent decree’s release only\nprecluded class members from litigating claims that were or\ncould have been asserted in the operative complaint. Consent\nDecree ¶ 18. It is because Pigford I alleged race\ndiscrimination, not sex discrimination, that the black male\nplaintiffs are precluded even while a sex discrimination claim\nby the black female farmer in plaintiffs’ example would not be.\nSee 18A Charles Alan Wright, Arthur R. Miller & Edward H.\nCooper, Federal Practice and Procedure § 4443 (2d ed. 2002)\n(“The basically contractual nature of consent judgments has led\nto general agreement that preclusive effects should be\nmeasured by the intent of the parties.”).\n\n Plaintiffs do not allege that they opted out of Pigford and\ntimely filed their own suit, thereby avoiding Pigford’s\npreclusive effect, but if they in fact did, they still fail because\nthey map no route past ECOA’s time bar. Even claims that\nwere revived by Congress’s tolling are by now time barred by\nthe revived claims’ statute of limitations (which expired on\n\f 18\nOctober 21, 2000). Appropriations Act, Pub. L. No. 105-277,\n§ 741, 112 Stat. 2681 (codified at 7 U.S.C. § 2279 notes).\n\n In any of the scenarios in which the plaintiffs initially\nsought to complain to USDA of discrimination by July 1997,\ntheir claims have been extinguished.\n\n To be clear, only the claims plaintiffs wish to present in\nthe Garcia/Love Framework (the underlying claims of credit\ndiscrimination by USDA in the 1980s) are precluded or time\nbarred. The claims they bring today under the Fifth\nAmendment and Title VI do not suffer those procedural\ndefects. But the plaintiffs cannot end-run the procedural bars\non their underlying credit discrimination claims by nesting\nthem in new framework-discrimination claims not subject to\nthose bars. Those bars operate independently from any\npotential discrimination by USDA and Epiq, and prevent us\nfrom redressing the plaintiffs’ injury by offering them an\n“opportunity . . . to present a meritorious claim for\ndiscrimination against” USDA. Compl. ¶¶ 74, 83, 90.\n\n Recognizing those barriers as a standing defect does not\ncollapse all procedural bars into standing issues. If the\nplaintiffs here sidestepped all the frameworks and sued USDA\ndirectly for violating ECOA in the 1980s, the court would\ndismiss the case on grounds of claim preclusion or\nuntimeliness, rather than standing. The plaintiffs have avoided\nthat fate by nesting procedurally barred claims in non-\nprocedurally barred claims, such that the claims they bring\ntoday cannot be dismissed for those reasons. Yet, because their\nunderlying ECOA claims are procedurally barred, we cannot\navoid the reality that, even if plaintiffs won an opportunity to\npresent those claims in the Framework, they would be\nineligible for redress and thereby lack standing to sue.\n\f 19\n Plaintiffs never explained why the consent decree or\nstatute of limitations would not bar their claims. They simply\ndescribe the “legal theory of their case” as being “that the\nUSDA’s administrative claims process whereby Epiq, at the\ndirection of and on behalf of the USDA, expressly excludes\nAfrican-American males from participating based solely on\ntheir race and gender violates the Fifth Amendment,\nnotwithstanding the Pigford consent decrees.” Appellants’ Br.\n23. Even accepting that theory as true does not overcome the\nindependent hurdles of the Pigford consent decree and ECOA’s\nstatute of limitations. Taking all the complaint’s allegations as\ntrue, one of those hurdles necessarily blocks the way. The\nplaintiffs therefore lack standing because their injury is not\nredressable—even if they satisfy the other prongs of the\nstanding test, and even if they are right on the merits that the\nGarcia/Love Framework violates the law.\n\n Because the standing defect is dispositive, we need not\nconsider the district court’s holding that issue preclusion\nprevents BFAA (alone or in addition to the individual\nplaintiffs) from relitigating its standing. We affirm the district\ncourt’s decision dismissing the case in its entirety.\n\n So ordered.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358770/", "author_raw": "Opinion for the Court filed by Circuit Judge PILLARD"}]} | GRIFFITH | PILLARD | SENTELLE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581517/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: ESTATE OF Earnest Lee BOYLAND, Et Al., Appellants v. UNITED STATES DEPARTMENT OF AGRICULTURE, Et Al., Appellees\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 1, 2018 Decided January 15, 2019\n\n No. 17-5082\n\n ESTATE OF EARNEST LEE BOYLAND, ET AL.,\n APPELLANTS\n\n v.\n\n UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,\n APPELLEES\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:15-cv-01112)\n\n\n Robert E. Hauberg Jr. argued the cause and filed the briefs\nfor appellants. Paul A. Robinson Jr. entered an appearance.\n\n Jennifer L. Utrecht, Attorney, U.S. Department of Justice,\nargued the cause for appellees. With her on the brief was\nCharles W. Scarborough, Attorney.\n\n Stephen P. Murphy was on the brief for appellee EPIQ\nClass Action & Claims Solutions, Inc.\n\n Before: GRIFFITH and PILLARD, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Circuit Judge PILLARD.\n\f 2\n PILLARD, Circuit Judge: Plaintiffs, representing the\nestates of black male farmers, seek to submit claims of past\ndiscrimination in agricultural credit programs to a claims-\nprocessing framework set up to resolve Hispanic and female\nfarmers’ credit discrimination claims. In this lawsuit, they\nassert that the claims-processing framework itself\ndiscriminatorily excluded them. In short, they raise a\ndiscrimination claim about the handling of discrimination\nclaims. They therefore identify two distinct discrimination\nclaims, one nested within the other: the underlying credit\ndiscrimination claims, and the current challenge to the\nframework. Plaintiffs argue that the district court failed to\nassume the merits of their claim when it held they lacked\nstanding to bring the current challenge. That is incorrect.\nPlaintiffs lack standing to challenge the framework because\nthey have no live underlying credit discrimination claims to\npresent there.\n\n Plaintiffs sued the United States Department of\nAgriculture (“USDA” or “the Department”) and Epiq Class\nAction & Claims Solutions, Inc. (“Epiq”), the firm USDA hired\nto administer the framework, contending they unlawfully\ndiscriminated by affording women and Hispanic claimants\nexclusive access to a remedial claims framework, the very\nraison d’être of which was to redress USDA’s sex and ethnicity\ndiscrimination against female and Hispanic farmers. Plaintiffs\nallege that the farmers whose estates they represent\nexperienced discrimination in USDA agricultural credit and\nbenefit programs—based not on sex or Hispanic ethnicity, but\non their black racial identity. That claim is certainly plausible.\nIt is well established that, during the 1980s and 1990s, USDA\nengaged in systemic discrimination on multiple grounds\nagainst many of the farmers its programs were supposed to\nserve. In fact, it was a class action lawsuit by black farmers\n(the “Black Farmers” suit) that first illuminated USDA’s\n\f 3\nrampant credit discrimination and inspired parallel lawsuits by\nNative American, female, and Hispanic farmers. And USDA\nmodeled the framework at issue here on the claims-processing\nsystem it set up in settlement of the Black Farmers’ class\naction.\n\n Plaintiffs in this case never submitted claims in the Black\nFarmers remedial process. When they instead sought to present\ntheir claims in the parallel framework for claims of\ndiscrimination against women and/or Hispanic farmers, the\nclaims processor turned them away. Plaintiffs contend that\nUSDA and Epiq thereby invidiously discriminated against\nthem based on their sex and race. They claim that USDA\nviolated the constitutional equal protection guarantee and that\nEpiq violated the federal statutory prohibition against\ndiscrimination by a program or activity that receives federal\nfinancial assistance.\n\n In assessing standing, we assume that plaintiffs could\nprevail on those claims. Plaintiffs’ standing nevertheless fails\nfor want of redressability. The claims-processing framework\nfor women and Hispanic farmers, like the parallel one for black\nfarmers, can only make good on live claims. Thus, even\nassuming plaintiffs succeeded in invalidating the framework’s\nchallenged sex and ethnicity limitations, they could not benefit\nunless they had unexpired claims of credit discrimination to\nprocess there.\n\n Because plaintiffs fail to allege that they have any live\nclaims to process in the framework they challenge, the harm\nthey assert from being excluded is not redressable. Plaintiffs’\nnested claims target discrimination by USDA during the 1980s\nin violation of the Equal Credit Opportunity Act (ECOA),\nwhich prohibits discrimination in credit transactions. 15\nU.S.C. § 1691 et seq. ECOA’s five-year statute of limitations\n\f 4\nhas long since run on most claims of that vintage. Congress in\n1998 legislated an important but limited exception to ECOA’s\ntime bar for farmers who had complained of discrimination to\nUSDA between 1981 and July 1997—a period when, Congress\nfound, the Department’s internal system for addressing\ndiscrimination claims was dysfunctional. Plaintiffs do not\nallege they sought to press their claims to USDA before July\n1997, so they are ineligible to benefit from Congress’s tolling\nof the limitations period for farmers who did. Their decades-\nold claims are time barred.\n\n Even if we assumed that plaintiffs in fact took steps before\n1997 to preserve their claims and merely neglected to so\nspecify in their complaint, they would still be out of luck.\nTogether with everything else they allege, that would mean—\nas the district court assumed—that they were members of the\nplaintiff class in the Black Farmers’ lawsuit. Any credit\ndiscrimination claim a member of the Black Farmers plaintiff\nclass may have had during the relevant period, whether or not\nactually pursued in the remedial process established under the\nBlack Farmers’ consent decree, is now precluded by that\ndecree, or, for any member who opted out, time barred. Thus,\neven if the challenged framework were not limited to women\nand Hispanic farmers, it could do nothing to redress plaintiffs’\nprecluded claims.\n\n I.\n\n A.\n\n Over the past two decades, USDA has resolved\ndiscrimination lawsuits with several different groups of\nfarmers. These lawsuits primarily challenged discrimination in\nUSDA’s lending programs in violation of ECOA. 15 U.S.C.\n§ 1691 et seq. Farmers’ bottom lines fluctuate with the weather\nand crop prices, so “many farmers depend heavily on the credit\n\f 5\nand benefit programs of the United States Department of\nAgriculture to take them from one year to the next.” Pigford v.\nGlickman (Pigford I), 185 F.R.D. 82, 86 (D.D.C. 1999)\n(footnote omitted). 1 If a farmer’s crops fail, “he may not have\nsufficient resources to buy seeds to plant in the following\nseason”; if he needs a new grain harvester, “he often cannot\nafford to buy the harvester without an extension of credit.” Id.\n“Because of the seasonal nature of farming, it also is of utmost\nimportance that credit and benefit applications be processed\nquickly or the farmer may lose all or most of his anticipated\nincome for an entire year.” Id.\n\n Public protest over discrimination in USDA’s credit and\nbenefit programs spurred the Department to investigate. That\nscrutiny uncovered a widespread pattern of discrimination in\nthe Department’s agricultural credit and benefit programs. In\n1996, then-Secretary of Agriculture Dan Glickman appointed\na Civil Rights Action Team to assess the Department’s history\nof racial discrimination and recommend changes. See id. at 88.\nThe Action Team documented extensive economic harm to\nminority farmers from discrimination in USDA programs. See\nid. at 86-88. That discrimination owed partly to USDA’s\npractice of delegating loan application decisions to small, local\ncommittees in each county. Id. at 86. The county committees\nwere far less diverse than the communities they served. Id. at\n87. USDA denied or delayed processing loan applications,\napproved insufficient amounts, discriminatorily denied access\nto loan servicing options, or imposed restrictive conditions on\nloans because of the applicants’ race, sex, or ethnicity. See\nFourth Am. Compl. 3, Love v. Veneman, No. 1:00-cv-02502\n(D.D.C. July 13, 2012), ECF No. 160 (female farmers); Eighth\n\n\n1\n Subsequent litigation in the case, not relevant here, became known\nas Pigford II. We refer to Pigford I for clarity and consistency with\nother opinions.\n\f 6\nAm. Compl. 2, Keepseagle v. Veneman, No. 1:99-cv-03119\n(D.D.C. Feb. 11, 2008), ECF No. 460 (Native American\nfarmers); Third Am. Compl. 13, Garcia v. Veneman, No. 1:00-\ncv-02445 (D.D.C. June 30, 2006), ECF No. 144 (Hispanic\nfarmers); Pigford I, 185 F.R.D. at 87 (black farmers).\n\n ECOA claims formed the core of the four lawsuits filed\nagainst USDA on behalf of black, Native American, women,\nand Hispanic farmers. ECOA creates a private right of action\nagainst a creditor, including the United States, who\n“discriminate[s] against any applicant, with respect to any\naspect of a credit transaction . . . on the basis of race, color,\nnational origin, [or] sex,” among other characteristics. Id.\n§§ 1691(a), 1691e(a).\n\n The evidence developed in the Pigford I Black Farmers\nlitigation showed that, on top of discrimination by the\ncommittees, by 1983, USDA’s Office of Civil Rights\nEnforcement and Adjudication (OCREA), which was\nresponsible for handling civil rights complaints against the\nDepartment, “essentially was dismantled and complaints that\nwere filed were never processed, investigated or forwarded to\nthe appropriate agencies for conciliation,” to the point that,\n“[i]n some cases, OCREA staff simply threw discrimination\ncomplaints in the trash without ever responding to or\ninvestigating them.” Pigford I, 185 F.R.D. at 88. The public\nlearned of the dysfunction of OCREA in a 1996 report by the\nU.S. Commission on Civil Rights; only with the publication of\nthe Civil Rights Action Team report the following year did the\ngovernment begin to reckon with the scale of the\ndiscrimination. See USDA Civil Rights Action Team, Civil\nRights at the United States Department of Agriculture 2 (1997);\nU.S. Comm’n on Civil Rights, Federal Title VI Enforcement to\nEnsure Nondiscrimination in Federally Assisted Programs 255\n(1996). The same month the Action Team released its report,\n\f 7\nUSDA’s Office of the Inspector General issued a report\ndescribing USDA’s lack of transparency and backlog of\nunprocessed complaints. See Pigford I, 185 F.R.D. at 88. “The\nacknowledgment by the USDA that the discrimination\ncomplaints had never been processed, however, came too late\nfor many African American farmers.” Id. Farmers’ legal\nrecourse was limited by the then-two-year statute of limitations\non claims of discrimination in credit transactions under ECOA.\n15 U.S.C. § 1691e(f); see Dodd-Frank Wall Street Reform and\nConsumer Protection Act, Pub. L. No. 111-203, § 1085(7), 124\nStat. 2085, 2113 (2010) (changing the statute of limitations to\nfive years).\n\n In 1998, Congress responded to the farmers’ predicament\nby lifting the time bar for farmers who had made timely efforts\nto seek administrative redress for credit discrimination but\nwere stymied by the dysfunction at USDA. See 7 U.S.C.\n§ 2279 note (Omnibus Consolidated and Emergency\nSupplemental Appropriations Act, 1999, Pub. L. No. 105-277,\n§ 741, 112 Stat. 2681) (“Appropriations Act”). The\nAppropriations Act tolled the statute of limitations for two\nyears after its passage—from October 1998 to October 2000—\nfor people who (1) alleged non-employment-related\ndiscrimination by USDA occurring between January 1, 1981,\nand December 31, 1996, and (2) had filed a complaint with\nUSDA before July 1, 1997. A farmer who complained to\nUSDA in 1983, when OCREA broke down, could have had\nvalid claims based on discrimination as far back as 1981, which\npresumably accounts for Congress’s choice of that year as the\nbeginning of the statutory date range. By confining the Act’s\nbeneficiaries to people who had sought to complain to USDA\nduring a period when the Department systematically failed to\nprocess farmers’ discrimination claims, Congress limited its\nlegislative fix to claimants blocked by OCREA’s dysfunction.\nIt did not more broadly waive the statute of limitations for all\n\f 8\nfarmers who suffered discrimination in the 1981 to 1996\nstatutory period.\n\n USDA has resolved the discrimination lawsuits of each of\nthe four groups of farmers. For each group, the only farmers\npermitted to participate in the claims-resolution processes\nestablished in response to these cases were those who had,\nbefore the suits were filed, complained in some manner of\nUSDA’s discrimination. Framework for Hispanic or Female\nFarmers’ Claims Process ¶¶ VIII.A, VIII.B, VIII.C.1.g, Love,\nNo. 1:00-cv-02502 (D.D.C. Jan. 20, 2012), ECF No. 155-1\n(“Garcia/Love Framework”); Keepseagle, No. 1:99-cv-03119,\n2001 WL 34676944, at *6 (D.D.C. Dec. 12, 2001); Pigford I,\n185 F.R.D. at 92.\n\n USDA settled with the class of Black Farmers first, in\n1999, in Pigford I. 185 F.R.D. 82. The court approved the\ncreation of a two-track dispute resolution mechanism for\ndistributing proceeds to claimants. Under that process,\nclaimants with less documentary evidence of discrimination\nreceived capped payments, while claimants with more\ndocumentary evidence could seek to prove and recover actual\ndamages. Pigford I, 185 F.R.D. at 95-97.\n\n The process established in Pigford I became a template for\nthe other cases. Next, USDA settled a class action suit with\nNative American farmers. See Keepseagle, No. 1:99-cv-\n03119, 2012 WL 13098692, at *1 (D.D.C. Dec. 28, 2012).\nSimilar lawsuits by Hispanic and female farmers followed, but\ndid not result in class-wide settlements because neither case\nwas certified as a class action. Garcia v. Johanns, 444 F.3d\n625 (D.C. Cir. 2006) (Hispanic farmers); Love v. Johanns, 439\nF.3d 723 (D.C. Cir. 2006) (female farmers). Instead, USDA\nvoluntarily created a joint claims process for both Hispanic and\nfemale farmers. See Garcia/Love Framework. Claimants who\n\f 9\nwished to recover under the Garcia/Love Framework agreed,\nin the claim packets they submitted, to release their individual\nclaims against USDA. See id. ¶ 5; Settlement Agreement,\nLove, No. 1:00-cv-02502 (D.D.C. Feb. 3, 2017), ECF No. 275-\n1.\n\n As described above, Congress did not toll all claims of\ndiscrimination arising between 1981 and 1996—only those of\nfarmers who also brought a complaint of discrimination by July\n1, 1997. See Pigford I, 185 F.R.D. at 92-93, 100. The plaintiffs\nhere have neither shown nor alleged that they made a credit\ndiscrimination complaint to the government at any time, much\nless by the deadline, as they would have had to do to qualify as\nPigford I class members.\n\n B.\n\n This case addresses whether the plaintiff black farmers\nwho, again, did not file claims in Pigford I, may now\nparticipate in the Garcia/Love Framework established to\ncompensate farmers discriminated against because of their sex\nor Hispanic ethnicity. The plaintiffs are the Black Farmers and\nAgriculturalists Association, Inc. (BFAA), which describes\nitself as “a not[-]for-profit organization created for the specific\npurpose of responding to the issues and concerns of black\nfarmers in the United States and abroad,” Appellants’ Br. 4,\nand the estates of three now-deceased black male farmers (the\nindividual plaintiffs), which allege that USDA discriminated\nagainst the farmers in lending programs during the 1980s. The\nindividual plaintiffs’ current challenge to their exclusion from\nthe Garcia/Love Framework is pressed by the farmers’ children\nand grandchildren, who are also members of plaintiff BFAA.\n\n In 2013, after the Pigford process had closed, plaintiff\nBFAA unsuccessfully sought to intervene in Garcia and Love\nto assert, among other claims, that its members were entitled\n\f 10\nunder the Equal Protection and Due Process Clauses to\nparticipate in the Garcia/Love Framework. Garcia, 304 F.R.D.\n77, 81 (D.D.C. 2014), aff’d, No. 14-5175, 2014 WL 6725751\n(D.C. Cir. Nov. 18, 2014); Love, 304 F.R.D. 85, 88 (D.D.C.\n2014), aff’d, No. 14-5185, 2014 WL 6725758 (D.C. Cir. Nov.\n18, 2014). The court denied intervention because, as relevant\nhere, BFAA lacked standing to press its constitutional\nchallenges. Garcia, 304 F.R.D. at 82. In the meantime, the\nthree individual plaintiffs submitted claims to the Garcia/Love\nFramework. They received denials explaining: “To participate\nin this Process, you must be either Hispanic/Latino or female.\n. . . [Y]ou indicated that you are an African American male.”\nJ.A. 57, 64, 72.\n\n BFAA and the individual plaintiffs then brought this\nputative class action against USDA and Epiq. They alleged\nthat USDA and Epiq violated their Fifth Amendment due\nprocess and equal protection rights, as well as Title VI of the\nCivil Rights Act of 1964, by excluding them from the\nGarcia/Love Framework because of their race and sex.\n\n The district court granted USDA’s motion to dismiss the\nconstitutional claims. It held that issue preclusion barred\nBFAA from relitigating its standing, because the Garcia/Love\ncourt had already decided the question. Estate of Boyland v.\nYoung, 242 F. Supp. 3d 24, at 30 (D.D.C. 2017); see also\nGarcia, 304 F.R.D. at 82; Love, 304 F.R.D. at 90. The\nindividual plaintiffs also lacked standing for much the same\nreason the Garcia/Love court had given for denying BFAA’s\nstanding: their lack of opportunity to present their\ndiscrimination claims was not fairly traceable to the\nGarcia/Love Framework, but to their own failure to file timely\nclaims for compensation under the Pigford settlement. The\ncourt dismissed the Title VI claim against Epiq on the ground\nthat the Garcia/Love Framework was not a “program or\n\f 11\nactivity” within the meaning of Title VI, and that Epiq had not\nreceived “federal financial assistance,” a prerequisite to the\nstatute’s applicability.\n\n II.\n\n We review de novo the district court’s dismissal for lack\nof standing, Young Am.’s Found. v. Gates, 573 F.3d 797, 799\n(D.C. Cir. 2009), and for failure to state a claim on the merits,\nHispanic Affairs Project v. Acosta, 901 F.3d 378, 385 (D.C.\nCir. 2018). The plaintiffs bear the burden of establishing our\njurisdiction, including the elements of standing. Lujan v. Defs.\nof Wildlife, 504 U.S. 555, 561 (1992). The requirements of\nArticle III standing are injury in fact, causation, and\nredressability. Id. at 560-61. Injury in fact is “an invasion of a\nlegally protected interest which is (a) concrete and\nparticularized . . . and (b) actual or imminent, not conjectural\nor hypothetical.” Id. at 560 (internal quotation marks and\ncitations omitted). The injury must also be “fairly traceable to\nthe challenged action of the defendant, and not the result of the\nindependent action of some third party not before the court.”\nId. (internal quotation marks and alterations omitted). Finally,\n“it must be likely, as opposed to merely speculative, that the\ninjury will be redressed by a favorable decision.” Id. at 561\n(internal quotation marks omitted).\n\n Plaintiffs lack standing to sue USDA and Epiq for\nexcluding them from the Garcia/Love Framework, because\nthey have failed to show that the court could redress any injury\nthey claim from that exclusion.\n\n For purposes of analyzing plaintiffs’ standing, we make\nthe requisite assumption that they would prevail on the merits\nof their claim that, in excluding them from the Garcia/Love\nFramework, USDA and Epiq impermissibly discriminated\nagainst them because of their race and sex. Whether a plaintiff\n\f 12\nhas a legally protected interest that supports standing does not\nrequire that he show he will succeed on the merits; if it did,\nevery merits loss would amount to a lack of standing. Instead,\n“when considering whether a plaintiff has Article III standing,\na federal court must assume, arguendo, the merits of his or her\nlegal claim.” Parker v. District of Columbia, 478 F.3d 370\n(D.C. Cir. 2007) (citing Warth v. Seldin, 422 U.S. 490, 501-02\n(1975)); see also Campbell v. Clinton, 203 F.3d 19, 23 (D.C.\nCir. 2000) (warning against “conflat[ing] standing with the\nmerits”).\n\n Even assuming plaintiffs here would prevail on their\nchallenge to their exclusion from the Framework, their injury\nis not redressable because they lack live credit discrimination\nclaims to present there. The district court accepted the\nplaintiffs’ description of their injury as “the loss of the\n‘opportunity . . . to present a meritorious claim for\ndiscrimination against’” USDA challenging past credit\ndiscrimination, as do we. Estate of Boyland, 242 F. Supp. 3d\nat 31 (quoting Compl. ¶¶ 74, 83, 90). That loss of opportunity\ncannot be redressed by opening the Framework to plaintiffs,\nbecause any credit discrimination claims they once had under\nECOA have been extinguished, as explained below.\n\n Plaintiffs argue that accounting for this fact in our standing\nanalysis impermissibly folds the merits of their case into\nstanding, but that is not so. Plaintiffs see error only by\nmistaking what it means to assume, in analyzing standing, that\nthey will prevail on the merits. We must provisionally treat the\nconduct plaintiffs challenge as in fact unlawful, but we do not\nassume away other, unchallenged constraints—whether of fact\nor law. Here, plaintiffs take aim at the limitation of the\nGarcia/Love Framework to victims of discrimination based on\nsex or Hispanic ethnicity. But they raise no claim against the\nFramework’s limitation to farmers who unsuccessfully sought\n\f 13\nredress of credit discrimination from USDA before 1997. 2\nThat criterion, wholly apart from the Framework’s challenged\nsex- or ethnicity-based limitation, is, whether by operation of\npreclusion or the statute of limitations, fatal to their current\nclaim.\n\n Plaintiffs read our decisions in Campbell and Animal\nLegal Defense Fund, Inc. v. Glickman (ALDF), 154 F.3d 426\n(D.C. Cir. 1998), as requiring us to accept their “legal theory”\nwhen we evaluate their standing. Appellants’ Br. 22. But those\ncases stand for the narrower proposition that a “party need not\nprove that the . . . action it attacks is unlawful . . . in order to\nhave standing to level that attack.” ALDF, 154 F.3d at 441\n(quoting La. Energy & Power Auth. v. FERC, 141 F.3d 364,\n368 (D.C. Cir. 1998)). Thus, in Campbell we held that plaintiff\nmembers of Congress had not suffered the requisite\nindividualized injury to support their legislative standing to\nseek a declaration that President Clinton violated the\nConstitution’s War Powers Clause, even if he did in fact violate\nthe Clause. 203 F.3d at 23-24. We did not rest on the legal\n2\n Their only hint in that direction falls wide of the mark. They allege\nthat “any socially disadvantaged farmer or rancher who had not filed\na meritorious claim for relief against USDA” is still entitled to do so\n“under § 14011” of the Food, Conservation, and Energy Act of 2008.\nJ.A. 19. But section 14011 by its terms establishes no such right.\nThat provision says that “[i]t is the sense of Congress that all pending\nclaims and class actions brought against the Department of\nAgriculture by socially disadvantaged farmers or ranchers . . .\nincluding Native American, Hispanic, and female farmers or\nranchers, based on racial, ethnic, or gender discrimination in farm\nprogram participation should be resolved in an expeditious and just\nmanner.” Pub. L. 110-234, § 14011, 122 Stat. 923, 1448 (2008)\n(codified at 7 U.S.C. § 2279-2 note). It did not thereby revive\nuntimely claims, but only referred to “pending claims and class\nactions,” several of which had been filed but not yet settled when the\nbill was passed. Id. (emphasis added).\n\f 14\nconclusion that the President “did not take any actions that\nconstitute ‘war’ in the constitutional sense,” as “[t]hat analysis\n. . . conflate[d] standing with the merits.” Id. at 23 (disavowing\nconcurrence’s reasoning to that effect). In analyzing standing,\nwe had to assume that the President had violated the\nConstitution.\n\n Even assuming the Garcia/Love Framework unlawfully\ndiscriminates, as the current complaint alleges, plaintiffs’\ninjuries are not redressable. That holding is wholly consistent\nwith Campbell and ALDF. The bar plaintiffs face is no knock\nagainst their equal protection and Title VI claims against\nUSDA and Epiq. The problem, rather, is that plaintiffs have\nnot alleged that they have any live credit discrimination claims\nto press in the Framework. Plaintiffs did not make a\ndiscrimination complaint before July 1997, and are thus barred\nby ECOA’s statute of limitations. The district courts here and\nin Garcia/Love nevertheless treated the plaintiffs as Pigford I\nclass members, who by definition did make a discrimination\ncomplaint by that deadline. See Estate of Boyland, 242 F.\nSupp. 3d at 31; Garcia, 304 F.R.D. at 81; Love, 304 F.R.D. at\n88. Even if plaintiffs did make such a complaint, however, they\nare barred by the Pigford I consent decree. Plaintiffs have\narticulated a theory for opening the Framework, but they have\nno theory for resurrecting the underlying claims they wish to\nprocess there. What follows is a detailed explanation of why\nthat is so.\n\n Plaintiffs do not allege that they complained to USDA\nbefore July 1997, and, accepting that they did not do so, two\nobstacles prevent them from participating in the Garcia/Love\nFramework, over and above USDA and Epiq’s alleged\ndiscrimination. One is statutory: Congress only revived ECOA\nclaims for those farmers who made a prior discrimination\ncomplaint by July 1, 1997. Because the plaintiffs’ claims were\n\f 15\nnever revived, they are subject to ECOA’s ordinary statute of\nlimitations (which is now five years). That means that their\ncredit discrimination claims, which allege discrimination in the\n1980s, are time barred. The second obstacle is that the\nplaintiffs fail to meet the basic criteria for participation in the\nGarcia/Love Framework, race and sex aside, because the\nFramework requires claimants to have complained of\ndiscrimination by July 1997. See Status Report Ex. 20-21,\nLove, No. 1:00-cv-02502 (D.D.C. July 18, 2012), ECF No.\n162-1; Garcia/Love Framework ¶¶ VIII.A, VIII.B, VIII.C.1.g.\nIndeed, the Garcia/Love Framework includes this requirement\nbecause it was a key parameter in Congress’s resurrection of\nECOA claims. Whatever form the obstacle takes, it prevents\nthe plaintiffs from processing their claims through the\nFramework.\n\n If plaintiffs did complain of discrimination by July 1997,\nclaim preclusion or the statute of limitations would bar their\nclaims now. As for preclusion, if plaintiffs had made a pre-\nJuly 1997 race-based ECOA claim to USDA, they would have\nqualified as Pigford I class members; the Pigford I complaint\nalleged precisely the same kind of racial discrimination as these\nplaintiffs’ nested claims. See Seventh Am. Class Action\nCompl. 4-5, Pigford v. Veneman, No. 1:97-cv-1978 (D.D.C.\nOct. 26, 1998), ECF No. 92. Plaintiffs do not allege that they\nopted out of Pigford I. If they did not, their claims are barred\nby the preclusive effects of the Pigford I consent decree, which\nincluded the following release:\n\n As provided by the ordinary standards governing the\n preclusive effects of consent decrees entered in class\n actions, all members of the class who do not opt out of\n this Consent Decree . . . and their heirs, administrators,\n successors, or assigns . . . hereby release and forever\n discharge the defendant and his administrators or\n\f 16\n successors, and any department, agency, or\n establishment of the defendant, and any officers,\n employees, agents, or successors of any such\n department, agency, or establishment . . . from—and\n are hereby themselves forever barred and precluded\n from prosecuting—any and all claims and/or causes of\n action which have been asserted in the Seventh\n Amended Complaint, or could have been asserted in\n that complaint at the time it was filed, on behalf of this\n class.\n\nConsent Decree ¶ 18, Pigford, No. 1:97-cv-1978 (D.D.C. Apr.\n14, 1999), ECF No. 167 (“Consent Decree”). The court\napproved the decree, and it binds the class. See Tritz v. U.S.\nPostal Serv., 721 F.3d 1133, 1141 (9th Cir. 2013) (“Court-\napproved settlement agreements . . . have res judicata effect.”);\n21A Federal Procedure, Lawyers’ Edition § 51:258 (“[A]\nconsent judgment entered pursuant to a settlement agreement\nconstitutes a final judgment on the merits in a res judicata\nanalysis.”); 18A Charles Alan Wright, Arthur R. Miller &\nEdward H. Cooper, Federal Practice and Procedure § 4443 (2d\ned. 2002) (explaining that “settlement agreements and consent\njudgments ordinarily support claim preclusion”).\n\n The plaintiffs hypothesize that an African American\nfemale Pigford I class member who failed to present her credit\ndiscrimination claims in the Pigford process might nonetheless\nparticipate in the Garcia/Love Framework. They contend that\nmust mean that Pigford I also lacks preclusive effect on the\ncredit discrimination claims the individual plaintiffs seek to\nprocess as estates of African American male farmers. It does\nnot. The Garcia/Love Framework only processes claims that\nUSDA discriminated against claimants “due to their being\nHispanic or female.” Garcia/Love Framework ¶ I. An African\nAmerican female farmer who failed to file a Pigford claim\n\f 17\nwould have lost her opportunity to submit her race\ndiscrimination claims just as the plaintiffs here have. The\nGarcia/Love Framework would allow her recovery only for\nlosses caused by sex discrimination, a type of discrimination\nnot at issue in Pigford nor in any credit discrimination claims\nthese plaintiffs may have had against USDA. Claim preclusion\ndoes not prevent a plaintiff from asserting a ground of recovery\nthat she could not have asserted in the earlier action. See\nLittlejohn v. United States, 321 F.3d 915, 920 (9th Cir. 2003).\nIn Stewart v. Rubin, for example, the district court explained\nthat a black female class member in a class action challenging\nracial discrimination “certainly would not be precluded by the\nSettlement Agreement” from separately litigating sex\ndiscrimination claims. 948 F. Supp. 1077, 1089 (D.D.C. 1996),\naff’d, 124 F.3d 1309 (D.C. Cir. 1997).\n\n Further, the Pigford I consent decree’s release only\nprecluded class members from litigating claims that were or\ncould have been asserted in the operative complaint. Consent\nDecree ¶ 18. It is because Pigford I alleged race\ndiscrimination, not sex discrimination, that the black male\nplaintiffs are precluded even while a sex discrimination claim\nby the black female farmer in plaintiffs’ example would not be.\nSee 18A Charles Alan Wright, Arthur R. Miller & Edward H.\nCooper, Federal Practice and Procedure § 4443 (2d ed. 2002)\n(“The basically contractual nature of consent judgments has led\nto general agreement that preclusive effects should be\nmeasured by the intent of the parties.”).\n\n Plaintiffs do not allege that they opted out of Pigford and\ntimely filed their own suit, thereby avoiding Pigford’s\npreclusive effect, but if they in fact did, they still fail because\nthey map no route past ECOA’s time bar. Even claims that\nwere revived by Congress’s tolling are by now time barred by\nthe revived claims’ statute of limitations (which expired on\n\f 18\nOctober 21, 2000). Appropriations Act, Pub. L. No. 105-277,\n§ 741, 112 Stat. 2681 (codified at 7 U.S.C. § 2279 notes).\n\n In any of the scenarios in which the plaintiffs initially\nsought to complain to USDA of discrimination by July 1997,\ntheir claims have been extinguished.\n\n To be clear, only the claims plaintiffs wish to present in\nthe Garcia/Love Framework (the underlying claims of credit\ndiscrimination by USDA in the 1980s) are precluded or time\nbarred. The claims they bring today under the Fifth\nAmendment and Title VI do not suffer those procedural\ndefects. But the plaintiffs cannot end-run the procedural bars\non their underlying credit discrimination claims by nesting\nthem in new framework-discrimination claims not subject to\nthose bars. Those bars operate independently from any\npotential discrimination by USDA and Epiq, and prevent us\nfrom redressing the plaintiffs’ injury by offering them an\n“opportunity . . . to present a meritorious claim for\ndiscrimination against” USDA. Compl. ¶¶ 74, 83, 90.\n\n Recognizing those barriers as a standing defect does not\ncollapse all procedural bars into standing issues. If the\nplaintiffs here sidestepped all the frameworks and sued USDA\ndirectly for violating ECOA in the 1980s, the court would\ndismiss the case on grounds of claim preclusion or\nuntimeliness, rather than standing. The plaintiffs have avoided\nthat fate by nesting procedurally barred claims in non-\nprocedurally barred claims, such that the claims they bring\ntoday cannot be dismissed for those reasons. Yet, because their\nunderlying ECOA claims are procedurally barred, we cannot\navoid the reality that, even if plaintiffs won an opportunity to\npresent those claims in the Framework, they would be\nineligible for redress and thereby lack standing to sue.\n\f 19\n Plaintiffs never explained why the consent decree or\nstatute of limitations would not bar their claims. They simply\ndescribe the “legal theory of their case” as being “that the\nUSDA’s administrative claims process whereby Epiq, at the\ndirection of and on behalf of the USDA, expressly excludes\nAfrican-American males from participating based solely on\ntheir race and gender violates the Fifth Amendment,\nnotwithstanding the Pigford consent decrees.” Appellants’ Br.\n23. Even accepting that theory as true does not overcome the\nindependent hurdles of the Pigford consent decree and ECOA’s\nstatute of limitations. Taking all the complaint’s allegations as\ntrue, one of those hurdles necessarily blocks the way. The\nplaintiffs therefore lack standing because their injury is not\nredressable—even if they satisfy the other prongs of the\nstanding test, and even if they are right on the merits that the\nGarcia/Love Framework violates the law.\n\n Because the standing defect is dispositive, we need not\nconsider the district court’s holding that issue preclusion\nprevents BFAA (alone or in addition to the individual\nplaintiffs) from relitigating its standing. We affirm the district\ncourt’s decision dismissing the case in its entirety.\n\n So ordered.\n[END_CASE]",
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4,581,518 | Air Transport Association v. FAA (ORDER) | 2019-01-15 | 18-1157 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Before: ROGERS and TATEL, Circuit Judges, and RANDOLPH*, Senior Circuit Judge ORDER Upon consideration of the motion of respondent for stay of the briefing schedule for final brief in light of the lapse of appropriations, and the opposition thereto, it is 2 ORDERED that the motion be denied.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n Filed: January 15, 2019\n\n No. 18-1157\n\n AIR TRANSPORT ASSOCIATION OF AMERICA, INC., D/B/A\n AIRLINES FOR AMERICA,\n PETITIONER\n\n v.\n\n FEDERAL AVIATION ADMINISTRATION,\n RESPONDENT\n\n PORT OF PORTLAND,\n INTERVENOR\n\n\n On Motion for Stay of Briefing Schedule for Final Brief\n in Light of Lapse of Appropriations\n\n\nBefore: ROGERS and TATEL, Circuit Judges, and RANDOLPH*,\nSenior Circuit Judge\n\n ORDER\n\n Upon consideration of the motion of respondent for stay\nof the briefing schedule for final brief in light of the lapse of\nappropriations, and the opposition thereto, it is\n\n 2\n\n ORDERED that the motion be denied.\n\n Per Curiam\n\n\n FOR THE COURT:\n Mark J. Langer, Clerk\n\n BY: /s/\n Ken Meadows\n Deputy Clerk", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358771/", "author_raw": "PER CURIAM"}, {"author": "* A statement by Senior Circuit Judge Randolph, dissenting", "type": "dissent", "text": "* A statement by Senior Circuit Judge Randolph, dissenting\nfrom the denial of the motion for stay of the briefing schedule\nfor final brief, is attached.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358771/", "author_raw": "* A statement by Senior Circuit Judge Randolph, dissenting"}, {"author": "RANDOLPH, Senior Circuit Judge, dissenting", "type": "dissent", "text": "RANDOLPH, Senior Circuit Judge, dissenting:\n\n For the reasons stated in Kornitzky Group, LLC v. Elwell,\nNo. 18-1160, ___ F.3d ___, 2019 WL 138710, at *2–3 (D.C.\nCir. Jan. 9, 2019) (Randolph, J., dissenting), I dissent from the\npanel’s denial of the motion for a stay. The majority’s order in\neffect directs a government attorney to perform work unrelated\nto any “emergencies involving the safety of human life or the\nprotection of property” and not otherwise “authorized by law”\nin violation of the Anti-Deficiency Act. 31 U.S.C. § 1342.\n\n After we published the opinions in Kornitzky, it came to my\nattention that several days earlier a different panel, in response\nto the government’s § 1342 motion, granted an extension of the\nbriefing schedule in a case in which the government is a party.\nSee United States v. Vasquez-Benitez, No. 18-3076 (D.C. Cir.\nJan. 3, 2018) (per curiam order). We now have another panel’s\ngrant of a similar extension, albeit in a case that will be\nsubmitted without oral argument. See Franklin-Mason v.\nSpencer, No. 17-5135 (D.C. Cir. Jan. 10, 2018) (per curiam\norder).\n\n It is obvious that our circuit has not settled upon any\nprincipled way of deciding these stay motions. There is no\nanalytical difference between a motion to stay a briefing\nschedule (as in this case) and a motion to postpone oral\nargument (as in Kornitzky).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358771/", "author_raw": "RANDOLPH, Senior Circuit Judge, dissenting"}]} | ROGERS | TATEL | RANDOLPH | 1 | {"ROGERS": ", Circuit", "TATEL": ", Circuit", "RANDOLPH": ", Senior Circuit"} | 3 | 0 | 2 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581518/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Air Transport Association v. FAA (ORDER)\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n Filed: January 15, 2019\n\n No. 18-1157\n\n AIR TRANSPORT ASSOCIATION OF AMERICA, INC., D/B/A\n AIRLINES FOR AMERICA,\n PETITIONER\n\n v.\n\n FEDERAL AVIATION ADMINISTRATION,\n RESPONDENT\n\n PORT OF PORTLAND,\n INTERVENOR\n\n\n On Motion for Stay of Briefing Schedule for Final Brief\n in Light of Lapse of Appropriations\n\n\nBefore: ROGERS and TATEL, Circuit Judges, and RANDOLPH*,\nSenior Circuit Judge\n\n ORDER\n\n Upon consideration of the motion of respondent for stay\nof the briefing schedule for final brief in light of the lapse of\nappropriations, and the opposition thereto, it is\n\n 2\n\n ORDERED that the motion be denied.\n\n Per Curiam\n\n\n FOR THE COURT:\n Mark J. Langer, Clerk\n\n BY: /s/\n Ken Meadows\n Deputy Clerk\n[END_CASE]",
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7,333,449 | DINH TRAN v. DEPARTMENT OF TREASURY | Dinh Tran v. Dep't of Treasury | 2019-01-15 | Case No. 1:17-cv-02601 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251368/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333449/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: DINH TRAN v. DEPARTMENT OF TREASURY\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,316 | Mary TYES-WILLIAMS v. Matthew G. WHITAKER | Tyes-Williams v. Whitaker | 2019-01-15 | Civil Action No. 17-1191 (TJK) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252236/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334316/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Mary TYES-WILLIAMS v. Matthew G. WHITAKER\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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8,443,832 | AIR TRANSPORT ASSOCIATION OF AMERICA, INC., d/b/a Airlines for America v. FEDERAL AVIATION ADMINISTRATION, Port of Portland, Intervenor | Air Transp. Ass'n of Am., Inc. v. Fed. Aviation Admin. | 2019-01-15 | No. 18-1157 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415258/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443832/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: AIR TRANSPORT ASSOCIATION OF AMERICA, INC., d/b/a Airlines for America v. FEDERAL AVIATION ADMINISTRATION, Port of Portland, Intervenor\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,317 | The KOI NATION OF NORTHERN CALIFORNIA v. UNITED STATES DEPARTMENT OF the INTERIOR | Koi Nation of N. Cal. v. U.S. Dep't of the Interior | 2019-01-16 | Civil Action No. 17-1718 (BAH) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Howell", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252237/", "author_raw": ""}]} | HOWELL | HOWELL | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334317/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: The KOI NATION OF NORTHERN CALIFORNIA v. UNITED STATES DEPARTMENT OF the INTERIOR\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,387 | Samer Abdulrazzaq MOHAMMED v. Jefferson B. SESSIONS, III | Mohammed v. Sessions | 2019-01-16 | Civil Action No.: 17-cv-2660 (RC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Contreras", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252307/", "author_raw": ""}]} | CONTRERAS | CONTRERAS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334387/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Samer Abdulrazzaq MOHAMMED v. Jefferson B. SESSIONS, III\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,582,955 | State of NORTH CAROLINA, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Cube Yadkin Generation, LLC, Intervenor | North Carolina v. Fed. Energy Regulatory Comm'n | 2019-01-18 | 17-1243 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Wilkins, Katsas, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge SENTELLE.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n\nArgued October 17, 2018 Decided January 18, 2019\n\n No. 17-1243\n\n STATE OF NORTH CAROLINA,\n PETITIONER\n\n v.\n\n FEDERAL ENERGY REGULATORY COMMISSION,\n RESPONDENT\n\n CUBE YADKIN GENERATION, LLC,\n INTERVENOR\n\n\n\n On Petition for Review of Orders of the\n Federal Energy Regulatory Commission\n\n\n\n James W. Doggett, Deputy Solicitor General, Office of the\nAttorney General for the State of North Carolina, argued the\ncause for petitioner. With him on the briefs were Joshua H.\nStein, Attorney General, and Matthew W. Sawchak, Solicitor\nGeneral.\n\n Robert M. Kennedy Jr., Senior Attorney, Federal Energy\nRegulatory Commission, argued the cause for respondent.\n\f 2\nWith him on the brief was Robert H. Solomon, Solicitor. Holly\nE. Cafer, Attorney, entered an appearance.\n\n Michael F. McBride argued the cause for intervenor. On\nthe brief were Julia S. Wood, Sharon L. White, and Eli W.L.\nHopson.\n\n Before: WILKINS and KATSAS, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Senior Circuit Judge\nSENTELLE.\n\n SENTELLE, Senior Circuit Judge: North Carolina petitions\nfor review of Federal Energy Regulatory Commission\n(“FERC”) orders involving the relicensing of the Yadkin\nHydroelectric Project No. 2197 (“Yadkin Project”). Petitioner\nalleges that the license applicant, Alcoa Power Generating, Inc.\n(“Alcoa”), misrepresented its plans to discontinue the use of\nproject power for industrial production at Badin Works, a\nmajor source of employment in the state. North Carolina\nalleges that Alcoa gained an unearned advantage and chilled\ncompetition because no other applicant possessed Alcoa’s ace\nin the hole: the ongoing industrial production at Badin Works\nand its impact on the public interest. North Carolina proposes\nthat FERC reopen licensing proceedings, or, in the alternative,\nrecommend federal recapture of the Yadkin Project for transfer\nto the state. We conclude that substantial evidence supports\nFERC’s decision, and we deny North Carolina’s petition for\nreview.\n\n I. BACKGROUND\n\n In 1958, Alcoa was awarded a fifty-year license to operate\nthe Yadkin Project, a series of hydroelectric dams on the\n\f 3\nYadkin River in North Carolina. The Yadkin Project powered\nindustrial production at Badin Works, an aluminum smelting\nplant that provided approximately 1,000 jobs to citizens in the\nstate. In 2002, Alcoa began the process of applying for a new\nlicense, immediately disclosing that aluminum production had\nbeen “temporarily curtailed,” and that the Yadkin Project’s\nexcess energy was being “sold on the open market.” Alcoa,\nagain in 2004, informed FERC that the curtailment continued\ndue to “adverse business conditions,” and that “surplus\nelectricity” was being sold “into the market.” In its 2006\nrelicensing application, Alcoa explained that the Yadkin\nProject was only providing “3 to 5 megawatts (MW) of\nelectricity” (or ~2% output) to Badin Works, so “the remaining\npower [was being] sold to help offset the cost of electricity\npurchases required for Alcoa’s other domestic smelting\noperations.” None of Alcoa’s competitors filed timely\napplications. 1\n\n In 2009, North Carolina requested that FERC recommend\nfederal recapture of the Yadkin Project for transfer to the state,\nwith North Carolina funding Alcoa’s “statutory net investment\nand severance damages.” Months later, Alcoa formally\nannounced that Badin Works would permanently close, and all\naluminum smelting and manufacturing facilities would be\ndismantled. In July of 2016, Alcoa declared its intent to sell\nthe Yadkin Project to Cube Yadkin Generation LLC (“Cube”),\nand it applied for a license transfer. On September 22, 2016,\nFERC issued Alcoa a new license and denied North Carolina’s\nrecapture proposal. Alcoa Power Generating, Inc., 156 FERC\n¶ 62,210 (2016). The state petitioned for rehearing of that\n1\n In 2013—seven years after the deadline for applications—a\ncompetitor, New Energy Capital Partners LLC, moved to intervene\nand reopen licensing. FERC denied that request as untimely. See\nNew Energy Capital Partners, LLC v. FERC, 671 F. App’x 802, 803\n(D.C. Cir. 2016).\n\f 4\ndecision. In December of 2016, FERC approved the transfer\nof Alcoa’s license to Cube, and the sale of the Yadkin Project\nwas completed in 2017 for an after-tax value of approximately\n$243 million. Final resolution came on September 20, 2017,\nwhen FERC denied North Carolina’s petition for rehearing.\nAlcoa Power Generating Inc., 160 FERC ¶ 61,097 (2017).\n\n On November 16, 2017, North Carolina petitioned this\nCourt to review FERC’s orders. The Court permitted Cube to\nintervene. The matter was fully briefed, and the Court heard\noral argument on October 17, 2018.\n\n II. DISCUSSION\n\n We review FERC orders under the Administrative\nProcedure Act (“APA”), which empowers the Court “to reverse\nany agency action that is ‘arbitrary, capricious, an abuse of\ndiscretion, or otherwise not in accordance with law.’” See, e.g.,\nWisconsin Valley Improvement Co. v. FERC, 236 F.3d 738,\n742 (D.C. Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). The\nCourt owes deference to FERC’s interpretation of the Federal\nPower Act (“FPA”) since it is the agency charged with\nadministering that statute. See Chevron, U.S.A., Inc. v. Nat.\nRes. Def. Council, Inc., 467 U.S. 837 (1984); e.g., TNA Merch.\nProjects, Inc. v. FERC, 857 F.3d 354, 358 (D.C. Cir. 2017).\nUnless “plainly erroneous,” the Court also extends deference\nto FERC’s interpretation of its own regulations. See, e.g., City\nof Oswego v. FERC, 97 F.3d 1490, 1498 (D.C. Cir. 1996);\naccord Auer v. Robbins, 519 U.S. 452 (1997).\n\n A. Relicensing Proceedings\n\n North Carolina avers foul play during the relicensing\nproceedings. Specifically, North Carolina believes that Alcoa\nengaged in a bait-and-switch by allegedly implying that the\n\f 5\nYadkin Project would resume supplying power to Badin\nWorks, a major source of employment in the state. North\nCarolina argues that FERC should reopen licensing because\nAlcoa’s alleged misrepresentations (1) served as patent\ndeficiencies in its application and (2) gained Alcoa an unearned\nadvantage by chilling competitors from applying.\n\n Because Alcoa was the lone applicant, if its application\ntruly was patently deficient, see 18 C.F.R. § 4.32(e), FERC\nshould have reopened licensing and “solicit[ed] applications\nfrom potential applicants other than the existing licensee,” see\n18 C.F.R. § 16.25(a). See also Oconto Falls v. FERC, 41 F.3d\n671, 672, 676–77 (D.C. Cir. 1994) (analogizing relicensing\nproceedings to those of an “orphaned project”—a project\nwhere “the licensee files a notice of intent to apply for a\nrelicense but neither the licensee nor any other applicant files a\ntimely [and valid] relicense application”). Indeed, it is\nuncontested that FERC generally has the authority to reopen\nlicensing and fashion alternative remedies when equity or\njustice demands. See 16 U.S.C. § 825h. However, substantial\nevidence contradicts the existence of any deficiencies or\ndeception in Alcoa’s application.\n\n Alcoa disclosed the curtailment of industrial production at\nBadin Works every step of the way, from its initial filing of\nintent to relicense, through its various correspondences with\nFERC, to the license application itself. Nothing in the record\ndemonstrates any nefarious intent by Alcoa or Cube to deceive\nFERC or the public at large regarding the status of Badin\nWorks. Although Alcoa initially characterized the curtailment\nas “temporary” in 2002, its subsequent missives reflected\nworsening circumstances, so much so, that it assigned the\nYadkin Project’s electricity purchase contract. The continued\ndecline of Badin Works was publicly known, as were the\nadverse market conditions facing the domestic, aluminum-\n\f 6\nsmelting industry. Given that 98% of the power generated\nfrom the Yadkin Project was being sold as of 2006, the fate of\nBadin Works was apparent to any competitor wishing to pursue\nthe license. Alcoa fully and accurately disclosed the\ncircumstances surrounding Badin Works, both in its\napplication and its correspondences more generally. Thus, no\nunearned advantage or chilling effect could result.\n\n The loss of jobs from the closure of Badin Works is a dark\nand menacing cloud that hangs over the state of North Carolina.\nHowever, Alcoa did not conceal this impending squall, and\nthus, FERC did not err by denying North Carolina’s request to\nreopen licensing.\n\n B. Federal Recapture\n\n North Carolina also claims that FERC dismissed its federal\nrecapture proposal without engaging in a reasoned analysis.\nThe state’s proposal—albeit creative—lacked any basis in the\nlaw.\n\n FERC possesses the authority to “not issue a new license\nto the original licensee,” and instead recommend that the\nfederal government take over a hydropower project for “public\npurposes.” 16 U.S.C. § 800(c). However, federal recapture is\nlimited to projects that the government “take[s] over and\nthereafter . . . maintain[s] and operate[s].” See 16 U.S.C.\n§ 807(a); Escondido Mut. Water Co. v. La Jolla Band of\nMission Indians, 466 U.S. 765, 769 n.4 (1984). Under North\nCarolina’s proposal, the federal government would not\n“maintain” or “operate” the Yadkin Project, but instead transfer\nit to the state. North Carolina does not and cannot identify a\nsingle case, statute, or regulation to provide authority for such\na taking-and-transfer. As the plain language of the FPA\nestablishes, Congress authorized federal recapture for federal\n\f 7\nuse, not subsequent transfer to state entities. Although FERC\ndid not articulate this interpretation in its administrative orders,\nwe may deny the petition for review on this ground because the\nstatute is clear. See, e.g., Canonsburg Gen. Hosp. v. Burwell,\n807 F.3d 295, 304 (D.C. Cir. 2015).\n\n In its decision, FERC correctly noted that North Carolina’s\nproposal was pending for more than half a decade, ample time\nfor the state to lobby or negotiate with federal agencies. During\nthat time, however, no federal agency ever stepped forward to\nvolunteer for this transfer. The absence of any agency\nvolunteer evidences the fallaciousness of using the FPA’s\nfederal recapture for a state acquisition.\n\n Indeed, the FPA provides a number of ways for a state to\nacquire a hydropower project, and North Carolina had and still\nhas options for obtaining the Yadkin Project if it so desires.\nDuring the application period, North Carolina could have filed\nits own competing application. See 16 U.S.C.\n§§ 797(e), 808(a)(1). The state could potentially have initiated\na condemnation proceeding of the Yadkin Project, acquiring\ntitle for “just compensation” to the licensee. See 16 U.S.C.\n§ 807(a). And North Carolina could have negotiated a transfer\nfrom the licensee. See 16 U.S.C. § 801.\n\n The elephant in the room, as with many things in life, is\nmoney. The cost of federal recapture equates to Alcoa’s “net\ninvestment” plus severance damages. See 16 U.S.C. § 807(a);\nEscondido, 466 U.S. at 769 n.4. This amount may be less than\n“just compensation” or a negotiated transfer fee since the most\nrecent sale of the Yadkin Project cost $243 million. See id.; 16\nU.S.C. § 801. Coincidentally, the closure of Badin Works and\nthe loss of jobs resulted in “a volcanic eruption . . . of anger” in\nNorth Carolina that “became a major political issue,” with local\npoliticians seeking to use monies from the Yadkin Project to\n\f 8\nfund state initiatives, such as education. See Oral Argument at\n10:00–10:43; 13:40–15:05; 16:00–16:40. However, thriftiness\nand political pressure do not create a legal basis for federal\nrecapture when its sole purpose is transferring the hydropower\nproject to a state. Indeed, none exists. Therefore, FERC did\nnot err in denying North Carolina’s federal recapture proposal.\n\n C. Public Interest\n\n North Carolina also asserts that FERC erred in its licensing\ndecision by failing to consider the adverse impact that\npermanent closure of Badin Works had on local employment\nand the public interest. However, the industrial need for power\nat the time of Alcoa’s application was only 2% of the Yadkin\nProject’s output, so FERC’s analyses assumed that all project\npower would be sold into the open market. See Final\nEnvironmental Impact Statement, Yadkin Hydroelectric\nProject – FERC Project No. 2197-073, FERC, April 2008, at\n239; e.g., Oral Argument at 23:55–28:25. While the loss of\njobs caused by the permanent closure of Badin Works did\naffect public interest, FERC had already accounted for its\nimpact. See id. Thus, North Carolina’s challenge to FERC’s\naffirmative licensing decision is unavailing.\n\n III. CONCLUSION\n\n For the reasons set forth above, we deny North Carolina’s\npetition for review.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360208/", "author_raw": "Opinion for the Court filed by Senior Circuit Judge SENTELLE."}]} | WILKINS | KATSAS | SENTELLE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582955/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: State of NORTH CAROLINA, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Cube Yadkin Generation, LLC, Intervenor\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n\nArgued October 17, 2018 Decided January 18, 2019\n\n No. 17-1243\n\n STATE OF NORTH CAROLINA,\n PETITIONER\n\n v.\n\n FEDERAL ENERGY REGULATORY COMMISSION,\n RESPONDENT\n\n CUBE YADKIN GENERATION, LLC,\n INTERVENOR\n\n\n\n On Petition for Review of Orders of the\n Federal Energy Regulatory Commission\n\n\n\n James W. Doggett, Deputy Solicitor General, Office of the\nAttorney General for the State of North Carolina, argued the\ncause for petitioner. With him on the briefs were Joshua H.\nStein, Attorney General, and Matthew W. Sawchak, Solicitor\nGeneral.\n\n Robert M. Kennedy Jr., Senior Attorney, Federal Energy\nRegulatory Commission, argued the cause for respondent.\n\f 2\nWith him on the brief was Robert H. Solomon, Solicitor. Holly\nE. Cafer, Attorney, entered an appearance.\n\n Michael F. McBride argued the cause for intervenor. On\nthe brief were Julia S. Wood, Sharon L. White, and Eli W.L.\nHopson.\n\n Before: WILKINS and KATSAS, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Senior Circuit Judge\nSENTELLE.\n\n SENTELLE, Senior Circuit Judge: North Carolina petitions\nfor review of Federal Energy Regulatory Commission\n(“FERC”) orders involving the relicensing of the Yadkin\nHydroelectric Project No. 2197 (“Yadkin Project”). Petitioner\nalleges that the license applicant, Alcoa Power Generating, Inc.\n(“Alcoa”), misrepresented its plans to discontinue the use of\nproject power for industrial production at Badin Works, a\nmajor source of employment in the state. North Carolina\nalleges that Alcoa gained an unearned advantage and chilled\ncompetition because no other applicant possessed Alcoa’s ace\nin the hole: the ongoing industrial production at Badin Works\nand its impact on the public interest. North Carolina proposes\nthat FERC reopen licensing proceedings, or, in the alternative,\nrecommend federal recapture of the Yadkin Project for transfer\nto the state. We conclude that substantial evidence supports\nFERC’s decision, and we deny North Carolina’s petition for\nreview.\n\n I. BACKGROUND\n\n In 1958, Alcoa was awarded a fifty-year license to operate\nthe Yadkin Project, a series of hydroelectric dams on the\n\f 3\nYadkin River in North Carolina. The Yadkin Project powered\nindustrial production at Badin Works, an aluminum smelting\nplant that provided approximately 1,000 jobs to citizens in the\nstate. In 2002, Alcoa began the process of applying for a new\nlicense, immediately disclosing that aluminum production had\nbeen “temporarily curtailed,” and that the Yadkin Project’s\nexcess energy was being “sold on the open market.” Alcoa,\nagain in 2004, informed FERC that the curtailment continued\ndue to “adverse business conditions,” and that “surplus\nelectricity” was being sold “into the market.” In its 2006\nrelicensing application, Alcoa explained that the Yadkin\nProject was only providing “3 to 5 megawatts (MW) of\nelectricity” (or ~2% output) to Badin Works, so “the remaining\npower [was being] sold to help offset the cost of electricity\npurchases required for Alcoa’s other domestic smelting\noperations.” None of Alcoa’s competitors filed timely\napplications. 1\n\n In 2009, North Carolina requested that FERC recommend\nfederal recapture of the Yadkin Project for transfer to the state,\nwith North Carolina funding Alcoa’s “statutory net investment\nand severance damages.” Months later, Alcoa formally\nannounced that Badin Works would permanently close, and all\naluminum smelting and manufacturing facilities would be\ndismantled. In July of 2016, Alcoa declared its intent to sell\nthe Yadkin Project to Cube Yadkin Generation LLC (“Cube”),\nand it applied for a license transfer. On September 22, 2016,\nFERC issued Alcoa a new license and denied North Carolina’s\nrecapture proposal. Alcoa Power Generating, Inc., 156 FERC\n¶ 62,210 (2016). The state petitioned for rehearing of that\n1\n In 2013—seven years after the deadline for applications—a\ncompetitor, New Energy Capital Partners LLC, moved to intervene\nand reopen licensing. FERC denied that request as untimely. See\nNew Energy Capital Partners, LLC v. FERC, 671 F. App’x 802, 803\n(D.C. Cir. 2016).\n\f 4\ndecision. In December of 2016, FERC approved the transfer\nof Alcoa’s license to Cube, and the sale of the Yadkin Project\nwas completed in 2017 for an after-tax value of approximately\n$243 million. Final resolution came on September 20, 2017,\nwhen FERC denied North Carolina’s petition for rehearing.\nAlcoa Power Generating Inc., 160 FERC ¶ 61,097 (2017).\n\n On November 16, 2017, North Carolina petitioned this\nCourt to review FERC’s orders. The Court permitted Cube to\nintervene. The matter was fully briefed, and the Court heard\noral argument on October 17, 2018.\n\n II. DISCUSSION\n\n We review FERC orders under the Administrative\nProcedure Act (“APA”), which empowers the Court “to reverse\nany agency action that is ‘arbitrary, capricious, an abuse of\ndiscretion, or otherwise not in accordance with law.’” See, e.g.,\nWisconsin Valley Improvement Co. v. FERC, 236 F.3d 738,\n742 (D.C. Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). The\nCourt owes deference to FERC’s interpretation of the Federal\nPower Act (“FPA”) since it is the agency charged with\nadministering that statute. See Chevron, U.S.A., Inc. v. Nat.\nRes. Def. Council, Inc., 467 U.S. 837 (1984); e.g., TNA Merch.\nProjects, Inc. v. FERC, 857 F.3d 354, 358 (D.C. Cir. 2017).\nUnless “plainly erroneous,” the Court also extends deference\nto FERC’s interpretation of its own regulations. See, e.g., City\nof Oswego v. FERC, 97 F.3d 1490, 1498 (D.C. Cir. 1996);\naccord Auer v. Robbins, 519 U.S. 452 (1997).\n\n A. Relicensing Proceedings\n\n North Carolina avers foul play during the relicensing\nproceedings. Specifically, North Carolina believes that Alcoa\nengaged in a bait-and-switch by allegedly implying that the\n\f 5\nYadkin Project would resume supplying power to Badin\nWorks, a major source of employment in the state. North\nCarolina argues that FERC should reopen licensing because\nAlcoa’s alleged misrepresentations (1) served as patent\ndeficiencies in its application and (2) gained Alcoa an unearned\nadvantage by chilling competitors from applying.\n\n Because Alcoa was the lone applicant, if its application\ntruly was patently deficient, see 18 C.F.R. § 4.32(e), FERC\nshould have reopened licensing and “solicit[ed] applications\nfrom potential applicants other than the existing licensee,” see\n18 C.F.R. § 16.25(a). See also Oconto Falls v. FERC, 41 F.3d\n671, 672, 676–77 (D.C. Cir. 1994) (analogizing relicensing\nproceedings to those of an “orphaned project”—a project\nwhere “the licensee files a notice of intent to apply for a\nrelicense but neither the licensee nor any other applicant files a\ntimely [and valid] relicense application”). Indeed, it is\nuncontested that FERC generally has the authority to reopen\nlicensing and fashion alternative remedies when equity or\njustice demands. See 16 U.S.C. § 825h. However, substantial\nevidence contradicts the existence of any deficiencies or\ndeception in Alcoa’s application.\n\n Alcoa disclosed the curtailment of industrial production at\nBadin Works every step of the way, from its initial filing of\nintent to relicense, through its various correspondences with\nFERC, to the license application itself. Nothing in the record\ndemonstrates any nefarious intent by Alcoa or Cube to deceive\nFERC or the public at large regarding the status of Badin\nWorks. Although Alcoa initially characterized the curtailment\nas “temporary” in 2002, its subsequent missives reflected\nworsening circumstances, so much so, that it assigned the\nYadkin Project’s electricity purchase contract. The continued\ndecline of Badin Works was publicly known, as were the\nadverse market conditions facing the domestic, aluminum-\n\f 6\nsmelting industry. Given that 98% of the power generated\nfrom the Yadkin Project was being sold as of 2006, the fate of\nBadin Works was apparent to any competitor wishing to pursue\nthe license. Alcoa fully and accurately disclosed the\ncircumstances surrounding Badin Works, both in its\napplication and its correspondences more generally. Thus, no\nunearned advantage or chilling effect could result.\n\n The loss of jobs from the closure of Badin Works is a dark\nand menacing cloud that hangs over the state of North Carolina.\nHowever, Alcoa did not conceal this impending squall, and\nthus, FERC did not err by denying North Carolina’s request to\nreopen licensing.\n\n B. Federal Recapture\n\n North Carolina also claims that FERC dismissed its federal\nrecapture proposal without engaging in a reasoned analysis.\nThe state’s proposal—albeit creative—lacked any basis in the\nlaw.\n\n FERC possesses the authority to “not issue a new license\nto the original licensee,” and instead recommend that the\nfederal government take over a hydropower project for “public\npurposes.” 16 U.S.C. § 800(c). However, federal recapture is\nlimited to projects that the government “take[s] over and\nthereafter . . . maintain[s] and operate[s].” See 16 U.S.C.\n§ 807(a); Escondido Mut. Water Co. v. La Jolla Band of\nMission Indians, 466 U.S. 765, 769 n.4 (1984). Under North\nCarolina’s proposal, the federal government would not\n“maintain” or “operate” the Yadkin Project, but instead transfer\nit to the state. North Carolina does not and cannot identify a\nsingle case, statute, or regulation to provide authority for such\na taking-and-transfer. As the plain language of the FPA\nestablishes, Congress authorized federal recapture for federal\n\f 7\nuse, not subsequent transfer to state entities. Although FERC\ndid not articulate this interpretation in its administrative orders,\nwe may deny the petition for review on this ground because the\nstatute is clear. See, e.g., Canonsburg Gen. Hosp. v. Burwell,\n807 F.3d 295, 304 (D.C. Cir. 2015).\n\n In its decision, FERC correctly noted that North Carolina’s\nproposal was pending for more than half a decade, ample time\nfor the state to lobby or negotiate with federal agencies. During\nthat time, however, no federal agency ever stepped forward to\nvolunteer for this transfer. The absence of any agency\nvolunteer evidences the fallaciousness of using the FPA’s\nfederal recapture for a state acquisition.\n\n Indeed, the FPA provides a number of ways for a state to\nacquire a hydropower project, and North Carolina had and still\nhas options for obtaining the Yadkin Project if it so desires.\nDuring the application period, North Carolina could have filed\nits own competing application. See 16 U.S.C.\n§§ 797(e), 808(a)(1). The state could potentially have initiated\na condemnation proceeding of the Yadkin Project, acquiring\ntitle for “just compensation” to the licensee. See 16 U.S.C.\n§ 807(a). And North Carolina could have negotiated a transfer\nfrom the licensee. See 16 U.S.C. § 801.\n\n The elephant in the room, as with many things in life, is\nmoney. The cost of federal recapture equates to Alcoa’s “net\ninvestment” plus severance damages. See 16 U.S.C. § 807(a);\nEscondido, 466 U.S. at 769 n.4. This amount may be less than\n“just compensation” or a negotiated transfer fee since the most\nrecent sale of the Yadkin Project cost $243 million. See id.; 16\nU.S.C. § 801. Coincidentally, the closure of Badin Works and\nthe loss of jobs resulted in “a volcanic eruption . . . of anger” in\nNorth Carolina that “became a major political issue,” with local\npoliticians seeking to use monies from the Yadkin Project to\n\f 8\nfund state initiatives, such as education. See Oral Argument at\n10:00–10:43; 13:40–15:05; 16:00–16:40. However, thriftiness\nand political pressure do not create a legal basis for federal\nrecapture when its sole purpose is transferring the hydropower\nproject to a state. Indeed, none exists. Therefore, FERC did\nnot err in denying North Carolina’s federal recapture proposal.\n\n C. Public Interest\n\n North Carolina also asserts that FERC erred in its licensing\ndecision by failing to consider the adverse impact that\npermanent closure of Badin Works had on local employment\nand the public interest. However, the industrial need for power\nat the time of Alcoa’s application was only 2% of the Yadkin\nProject’s output, so FERC’s analyses assumed that all project\npower would be sold into the open market. See Final\nEnvironmental Impact Statement, Yadkin Hydroelectric\nProject – FERC Project No. 2197-073, FERC, April 2008, at\n239; e.g., Oral Argument at 23:55–28:25. While the loss of\njobs caused by the permanent closure of Badin Works did\naffect public interest, FERC had already accounted for its\nimpact. See id. Thus, North Carolina’s challenge to FERC’s\naffirmative licensing decision is unavailing.\n\n III. CONCLUSION\n\n For the reasons set forth above, we deny North Carolina’s\npetition for review.\n[END_CASE]",
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4,582,956 | Jorge L. MEDINA, Appellant v. Matthew G. WHITAKER, Appellee | Jorge Medina v. Matthew Whitaker | 2019-01-18 | 17-5248 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Pillard, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge SENTELLE.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n\nArgued September 11, 2018 Decided January 18, 2019\n\n No. 17-5248\n\n JORGE L. MEDINA,\n APPELLANT\n\n v.\n\n MATTHEW G. WHITAKER,\n APPELLEE\n\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:16-cv-01718)\n\n\n\n Alan Gura argued the cause for appellant. With him on\nthe briefs was Jason D. Wright.\n\n Patrick G. Nemeroff, Attorney, U.S. Department of\nJustice, argued the cause for appellee. With him on the brief\nwere Jessie K. Liu, U.S. Attorney, and Mark B. Stern and\nMichael S. Raab, Attorneys.\n\n Before: ROGERS and PILLARD, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\f 2\n Opinion for the Court filed by Senior Circuit Judge\nSENTELLE.\n\n SENTELLE, Senior Circuit Judge: Jorge Medina was\nconvicted of falsifying his income on mortgage applications\ntwenty-seven years ago. Now, as a convicted felon, he is\nprohibited from owning firearms by federal law. He argues\nthat the application of this law to him violates the Second\nAmendment because he poses no heightened risk of gun\nviolence. Because we conclude that felons are not among the\nlaw-abiding, responsible citizens entitled to the protections of\nthe Second Amendment, we reject his contention and affirm\nthe district court’s dismissal order.\n\n I. Factual Background\n In 1990, Medina committed a felony. He grossly\nmisrepresented his income on a mortgage finance application\nto qualify for a $30,000 loan from the First Federal Bank of\nCalifornia. He was referred for criminal prosecution by the\nbank. He cooperated with the investigation, confessed to his\ncrime, and pled guilty in 1991 to a felony count of making a\nfalse statement to a lending institution in violation of 18\nU.S.C. § 1014. Although his crime was punishable by up to\nthirty years in prison, Medina was sentenced to only three\nyears of probation, home detention for sixty days, and a fine.\nAt the recommendation of the U.S. Attorney, the U.S.\nProbation Officer, and members of the community, Medina’s\nprobation was terminated after only one year.\n\n In the mid-1990s, Medina had another run-in with the\nlaw. In 1994 and 1995, he applied for resident hunting\nlicenses in the state of Wyoming, while not actually residing\nin that state. He claims that the false statements were\npredicated on a misunderstanding about the residency\nrequirements. Nevertheless, in 1996, he pled guilty to three\n\f 3\nmisdemeanor counts of making a false statement on a game\nlicense application in violation of Wyo. Stat. Ann. § 23-3-403\n(1989). The crime was classified as a misdemeanor and was\npunishable by a fine and six months’ imprisonment. Wyo.\nStat. Ann. § 23-6-202(a)(v) (1981). Medina was sentenced to\nan eight-year hunting license revocation and a fine.\n\n Medina has no further criminal record since his 1996\nconviction. He owns a successful business, supports a family,\nand engages in philanthropy. His rehabilitation has been\nrecognized by several important institutions. The California\nreal estate licensing board has continued to license him\nfollowing his 1991 conviction. The government of Canada\nrestored his right to enter the country in 2009. Even the victim\nof Medina’s false statement, the First Federal Bank of\nCalifornia, recognized his trustworthiness in 2005 by\nextending him a $1,000,000 line of credit.\n\n Notwithstanding his past misdeeds, Medina wants to own\na firearm for self-defense and recreation. He cannot do so,\nhowever, because his 1991 felony conviction bars him from\npossessing firearms under federal law.\n\n II. Legal Background\n Since 1968, anyone convicted of “a crime punishable by\nimprisonment for a term exceeding one year” is prohibited\nfrom owning firearms for life under 18 U.S.C. § 922(g)(1).\nExempted from this prohibition are those convicted of\nantitrust violations, those convicted of state misdemeanors\nwith a maximum term of imprisonment of two years or less,\nand those whose convictions have been pardoned or\nexpunged. 18 U.S.C. § 921(a)(20). Although the prohibition\napplies for life, the statute allows the Attorney General to\nrestore firearm rights to those deemed not “likely to act in a\nmanner dangerous to public safety.” 18 U.S.C. § 925(c). This\n\f 4\nremedy has been unavailable since 1992, however, because\nCongress has prohibited the Attorney General from using\npublic funds to investigate relief applications. To justify this\ndecision, Congress cited the difficulty of the task and the fact\nthat a wrong decision could result in “devastating\nconsequences.” S. Rep. No. 102-353 (1992).\n\n In 2008—forty years after the enactment of this statute—\nthe Supreme Court issued its decision in District of Columbia\nv. Heller, which clarified that the Second Amendment\nprotects the right of individual Americans to keep and bear\nfirearms for self-defense. 554 U.S. 570, 595 (2008). This\nright, like other fundamental rights, is not unlimited in scope.\nIn Heller, and again in McDonald v. City of Chicago, the\nCourt explained that the recognition of an individual right to\nbear firearms does not “cast doubt on longstanding\nprohibitions on the possession of firearms by felons.” Heller,\n554 U.S. at 626; McDonald, 561 U.S. 742, 786 (2010). The\npractice of barring convicted felons from possessing firearms\nis a “presumptively lawful regulatory measure[].” Heller, 554\nU.S. at 627 n.26.\n\n Notwithstanding the Supreme Court’s statements\nconcerning felon disarmament, the constitutionality of\n§ 922(g)(1) has been challenged several times. Litigation has\ntaken the form of both facial challenges to the statute and\nchallenges to the law’s application in particular\ncircumstances. Facial challenges to the statute’s\nconstitutionality have failed in every circuit to have\nconsidered the issue. United States v. Bogle, 717 F.3d 281 (2d\nCir. 2013) (per curiam); United States v. Barton, 633 F.3d\n168, 175 (3d Cir. 2011) (overruled on other grounds by\nBinderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016));\nUnited States v. Moore, 666 F.3d 313, 318 (4th Cir. 2012);\nUnited States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011);\n\f 5\nUnited States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir.\n2011); United States v. Rozier, 598 F.3d 768, 770–71 (11th\nCir. 2010); United States v. Williams, 616 F.3d 685, 692 (7th\nCir. 2010); United States v. Vongxay, 594 F.3d 1111, 1115\n(9th Cir. 2010); United States v. McCane, 573 F.3d 1037,\n1047 (10th Cir. 2009); United States v. Anderson, 559 F.3d\n348, 352 (5th Cir. 2009).\n\n As-applied challenges have fared only marginally better,\nand no circuit has held the law unconstitutional as applied to a\nconvicted felon. The Ninth Circuit takes the view that “felons\nare categorically different from the individuals who have a\nfundamental right to bear arms.” Vongxay, 594 F.3d at 1115.\nFour other circuits have, in a similar vein, also rejected as-\napplied challenges by convicted felons. See Hamilton v.\nPallozzi, 848 F.3d 614, 626–27 (4th Cir. 2017), cert. denied,\n138 S. Ct. 500 (2017); United States v. Rozier, 598 F.3d 768,\n770–71 (11th Cir. 2010); United States v. Scroggins, 599 F.3d\n433, 451 (5th Cir. 2010); In re United States, 578 F.3d 1195,\n1200 (10th Cir. 2009). The Seventh and Eighth Circuits, while\nleaving open the possibility of a successful felon as-applied\nchallenge, have yet to uphold one. See United States v.\nWoolsey, 759 F.3d 905, 909 (8th Cir. 2014); United States v.\nWilliams, 616 F.3d 685, 693–94 (7th Cir. 2010).\n\n Only one court has held § 922(g)(1) unconstitutional in\nany of its applications. In Binderup v. Attorney General, the\nThird Circuit, en banc, considered the application of the law\nto two misdemeanants and issued a well-reasoned opinion,\nconcurrence, and dissent that illustrates the various\nviewpoints in this debate. 836 F.3d 336 (3d Cir. 2016), cert.\ndenied, 137 S. Ct. 2323 (2017). The court ultimately\nconcluded that the law was unconstitutional as applied, but\nsplit sharply on the reasoning. The narrowest ground\nsupporting the judgment held that those who commit serious\n\f 6\ncrimes forfeit their Second Amendment right to arms. Id. at\n349. It further held that the “passage of time or evidence of\nrehabilitation” could not restore the lost right; only the\nseriousness of the crime was relevant to determine if a\nconvicted criminal fell outside the scope of the Second\nAmendment. Id. at 349–50. Applying this reasoning, the\nmisdemeanor crimes at issue in that case were not sufficiently\nserious to warrant disarmament. Id. at 353. In a concurrence\nto the judgment, five judges disagreed with the seriousness\ntest and took the view “that non-dangerous persons convicted\nof offenses unassociated with violence may rebut the\npresumed constitutionality of § 922(g)(1) on an as-applied\nbasis.” Id. at 357–58. (Hardiman, J., concurring in the\njudgment). Finally, seven judges dissented from the judgment\nand would have rejected the as-applied challenge to\n§ 922(g)(1). Although they agreed that the proper focus was\non the seriousness of the crime, they were satisfied that\ncrimes encompassed by the statute were sufficiently serious to\nwarrant disarmament. Id. at 381 (Fuentes, J., dissenting from\nthe judgment).\n\n In our 2013 Schrader v. Holder decision, we joined our\nsister circuits in rejecting a categorical Second Amendment\nchallenge to § 922(g)(1). 704 F.3d 980, 989 (D.C. Cir. 2013).\nIn that case, Schrader was barred from possessing firearms\nbecause of a forty-year-old, common-law misdemeanor\ncharge arising from a fistfight. Id. at 983. Although he was\nonly sentenced to a $100 fine, the misdemeanor carried no\nmaximum possible term of incarceration—triggering the\nlifetime firearm prohibition under § 922(g)(1). Id. Schrader\nargued that the statute violated the Second Amendment when\napplied to misdemeanants such as himself because it deprived\nlaw-abiding citizens of their right to bear arms. Id. at 984. To\nresolve this claim, we applied the familiar two-step Second\nAmendment analysis used by circuits throughout the country\n\f 7\nand adopted by this Court in Heller v. District of Columbia\n(Heller II), 670 F.3d 1244 (D.C. Cir. 2011). The first step\nrequires us to consider whether the challenged law regulates\nconduct “outside the Second Amendment’s protections.”\nSchrader, 704 F.3d at 988–89. If so, our inquiry ends, and\nonly rational basis scrutiny applies. If the law regulates\nactivity protected by the Second Amendment, however, the\nsecond step of the analysis shifts the burden to the\ngovernment to show that the regulation is “substantially\nrelated to an important governmental objective.” Id. at 989.\nApplying this test to Schrader’s claim, we found it\nunnecessary to apply step one because the law survived\nintermediate scrutiny even if it did regulate conduct within the\nscope of the Amendment. Id. The government’s interest in\nreducing crime was important and bore a substantial\nrelationship to prohibiting firearm ownership by “individuals\nwith prior criminal convictions.” Id. at 989–90.\n\n Although we upheld the facial constitutionality of\n§ 922(g)(1), we did not decide the constitutionality of the\nstatute as applied to Schrader individually. Id. at 991.\nSchrader had not challenged the application of the statute to\nhimself, but rather to common-law misdemeanants as a class.\nWe noted in dicta that, had he brought an individual as-\napplied challenge, the length of time between Schrader’s\nminor misdemeanor and the intervening years of law-abiding\nbehavior would make us hesitant “to find Schrader outside the\nclass of law-abiding, responsible citizens whose possession of\nfirearms is, under Heller, protected by the Second\nAmendment.” Id. (internal quotations omitted). Ultimately,\nhowever, we declined to consider such an argument for the\nfirst time on appeal. Id.\n\f 8\n III. Procedural Background\n Seizing upon the dicta in Schrader, Medina challenges\nthe application of § 922(g)(1) to himself individually. He\nargues that his responsible life for many years, the nonviolent\nnature of his felony conviction, and the lack of evidence that\nhe poses a heightened risk of gun violence, all make the law\nunconstitutional as applied to him. He sued the Attorney\nGeneral on August 24, 2016, to enjoin the enforcement of the\nstatute. Medina v. Sessions, 279 F. Supp. 3d 281 (D.D.C.\n2017). The Government moved to dismiss.\n\n The district court relied on our opinion in Schrader v.\nHolder to grant the Government’s motion to dismiss under\nFed. R. Civ. P. 12(b)(6). Id. at 289. The court applied both\nsteps of the Schrader analysis. First, it held that Medina failed\nthe first step because convicted felons fall outside of the\nSecond Amendment’s protection. Id. It cited the decisions of\nseveral other circuits in support of its conclusion that the\nFounders would have considered a convicted felon like\nMedina to be “unable to claim the right to bear a firearm.” Id.\nat 289–91. Alternatively, the district court held that, even if\nMedina did fall within the scope of the Second Amendment’s\nprotection, the law would survive the intermediate scrutiny\nanalysis required by the second step of Schrader. Id. at 291–\n92. The government’s important interest in public safety was\nsubstantially related to the law, and Congress was not limited\nto “case-by-case exclusions of persons who have been shown\nto be untrustworthy with weapons.” Id. at 291–92 (quoting\nSchrader, 704 F.3d at 991). Therefore, the district court\ngranted the Government’s motion to dismiss. Medina timely\nnoticed this appeal.\n\f 9\n IV. Analysis\n We review the dismissal of Medina’s complaint de novo.\nSchrader, 704 F.3d at 984. On appeal, Medina reiterates the\nconstitutional arguments made below and contests both\nprongs of the district court’s Schrader analysis. At step one,\nhe argues that the district court erred when it found him\noutside the scope of the Second Amendment’s protections\nbecause only those who are “dangerous” may be disarmed. He\nasserts that the district court was incorrect to conclude that\n“disregard for the law” was sufficient to justify disarmament.\nMedina also argues the district court failed to conduct a\nsufficiently individualized assessment of his crime, his life,\nand his rehabilitation before deciding that he was not within\nthe scope of the Second Amendment. At step two, Medina\nclaims that the district court should not have applied\nintermediate scrutiny at all. He argues that, once he shows\nthat he is not dangerous, an outright prohibition on his right to\npossess firearms is indistinguishable from the ban struck\ndown in Heller and fails under any form of scrutiny.\n\n A.\n\n The district court concluded that Medina was not within\nthe scope of the Second Amendment because his commission\nof a serious crime removes him from the category of “law-\nabiding and responsible” citizens. Medina challenges this and\nasserts that evidence of past “disregard for the law” is\ninsufficient to disarm him. In his view, the scope of the\nSecond Amendment only excludes dangerous individuals.\nSince the government cannot show that he is particularly\ndangerous, it offends the Second Amendment to bar him from\npossessing firearms.\n\n To resolve this question, we must look to tradition and\nhistory. “Constitutional rights are enshrined with the scope\n\f 10\nthey were understood to have when the people adopted them.”\nHeller, 554 U.S. at 634–35. We recall Justice Scalia’s\nadmonishment that “[h]istorical analysis can be difficult” and\nthat it involves “making nuanced judgments about which\nevidence to consult and how to interpret it.” McDonald, 561\nU.S. at 803–04 (Scalia, J., concurring). The Second\nAmendment was ratified in 1791, so we look to the public\nunderstanding of the right at that time to determine if a\nconvicted felon would fall outside the scope of its protection.\n\n As a starting point, we consider felony crime as it would\nhave been understood at the time of the Founding. In 1769,\nWilliam Blackstone defined felony as “an offense which\noccasions a total forfeiture of either lands, or goods, or both,\nat the common law, and to which capital or other punishment\nmay be superadded, according to the degree of guilt.” 4\nWilliam Blackstone, Commentaries on the Laws of England\n*95 (Harper ed. 1854). Felonies were so connected with\ncapital punishment that it was “hard to separate them.” Id. at\n*98. Felony crimes in England at the time included crimes of\nviolence, such as murder and rape, but also included non-\nviolent offenses that we would recognize as felonies today,\nsuch as counterfeiting currency, embezzlement, and desertion\nfrom the army. Id. at *90-103. Capital punishment for felonies\nwas “ubiquit[ous]” in the late Eighteenth Century and was\n“the standard penalty for all serious crimes.” See Baze v.\nRees, 553 U.S. 35, 94 (2008) (Thomas, J., concurring in the\njudgment) (citing Stuart Banner, The Death Penalty: An\nAmerican History 23 (2002)). For example, at the time of the\nSecond Amendment’s ratification, nonviolent crimes such as\nforgery and horse theft were capital offenses. E.g., Banner,\nsupra, at 18 (describing the escape attempts of men\ncondemned to die for forgery and horse theft in Georgia\nbetween 1790 and 1805).\n\f 11\n Admittedly, the penalties for many felony crimes quickly\nbecame less severe in the decades following American\nindependence and, by 1820, forfeiture had “virtually\ndisappeared in the United States.” Will Tress, Unintended\nCollateral Consequences: Defining Felony in the Early\nAmerican Republic, 57 Clev. St. L. Rev. 461, 468, 473\n(2009). Nevertheless, felonies were—and remain—the most\nserious category of crime deemed by the legislature to reflect\n“grave misjudgment and maladjustment.” Hamilton, 848 F.3d\nat 626. With this perspective, it is difficult to conclude that\nthe public, in 1791, would have understood someone facing\ndeath and estate forfeiture to be within the scope of those\nentitled to possess arms.\n\n Next, we consider whether historical evidence suggests\nthat only dangerous persons could be disarmed. None of the\nsources cited by Medina compels this conclusion. In fact, one\nsource he cites, a 1787 proposal before the Pennsylvania\nratifying convention, supports precisely the opposite\nunderstanding. The text of that proposal states: “no law shall\nbe passed for disarming the people or any of them unless for\ncrimes committed, or real danger of public injury from\nindividuals.” The Address and Reasons of Dissent of the\nMinority of the Convention of the State of Pennsylvania to\ntheir Constituents, reprinted in Bernard Schwartz, 2 The Bill\nof Rights: A Documentary History 662, 665 (1971) (emphasis\nadded). The use of the word “or” indicates that criminals, in\naddition to those who posed a “real danger” (such as the\nmentally ill, perhaps), were proper subjects of disarmament.\nAdditionally, during the revolution, the states of\nMassachusetts and Pennsylvania confiscated weapons\nbelonging to those who would not swear loyalty to the United\nStates. See United States v. Carpio-Leon, 701 F.3d 974, 980\n(4th Cir. 2012) (citing Saul Cornell & Nathan DeDino, A Well\nRegulated Right: The Early American Origins of Gun\n\f 12\nControl, 73 Fordham L. Rev. 487, 506 (2004)). As these\nexamples show, the public in the founding era understood that\nthe right to bear arms could exclude at least some nonviolent\npersons.\n\n A number of other circuits have also considered this issue\nand have concluded that history and tradition support the\ndisarmament of those who were not (or could not be) virtuous\nmembers of the community. At least four circuits have\nendorsed the view that “most scholars of the Second\nAmendment agree that the right to bear arms was tied to the\nconcept of a virtuous citizenry and that, accordingly, the\ngovernment could disarm ‘unvirtuous citizens.’” United\nStates v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010). See\nalso United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir.\n2010); Binderup v. Attorney General, 836 F.3d 336, 348 (3d\nCir. 2016) 1; United States v. Carpio-Leon, 701 F.3d 974, 979\n(4th Cir. 2012). The “virtuous citizen” theory is drawn from\n“classical republican political philosophy” and stresses that\nthe “right to arms does not preclude laws disarming the\nunvirtuous (i.e. criminals) or those who, like children or the\nmentally imbalanced, are deemed incapable of virtue.” United\nStates v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009) (quoting\nGlenn Harlan Reynolds, A Critical Guide to the Second\nAmendment, 62 Tenn. L. Rev. 461, 480 (1995)). Several\ncircuits have relied on this theory to uphold the\nconstitutionality of modern laws banning the possession of\nfirearms by illegal aliens and juveniles—classes of people\nwho might otherwise show, on a case-by-case basis, that they\nare not particularly dangerous. See Carpio-Leon, 701 F.3d at\n979–81; Rene E., 583 F.3d at 15. In considering these\ndecisions, we recognize that there is “an ongoing debate\n\n1\n This rationale was supported by seven of the fifteen judges of the\nen banc court. Binderup, 836 F.3d at 339.\n\f 13\namong historians about the extent to which the right to bear\narms in the founding period turned on concerns about the\npossessor’s virtue.” Rene E., 583 F.3d at 16. While we need\nnot accept this theory outright, its support among courts and\nscholars serves as persuasive evidence that the scope of the\nSecond Amendment was understood to exclude more than just\nindividually identifiable dangerous individuals.\n\n With few primary sources directly on point, we finally\nconsider the guidance from the Supreme Court in Heller.\nAlthough the Court declined to “expound upon the historical\njustifications” for felon firearm prohibitions, it described them\nas “longstanding” and “presumptively lawful.” Heller, 554\nU.S. at 626, 627 n.26, 635. Felonies encompass a wide variety\nof non-violent offenses, and we see no reason to think that the\nCourt meant “dangerous individuals” when it used the word\nfelon.\n\n On balance, the historical evidence and the Supreme\nCourt’s discussion of felon disarmament laws leads us to\nreject the argument that non-dangerous felons have a right to\nbear arms. As a practical matter, this makes good sense.\nUsing an amorphous “dangerousness” standard to delineate\nthe scope of the Second Amendment would require the\ngovernment to make case-by-case predictive judgments\nbefore barring the possession of weapons by convicted\ncriminals, illegal aliens, or perhaps even children. We do not\nthink the public, in ratifying the Second Amendment, would\nhave understood the right to be so expansive and limitless. At\nits core, the Amendment protects the right of “law-abiding,\nresponsible citizens to use arms in defense of hearth and\nhome.” Heller, 554 U.S. at 635. Whether a certain crime\nremoves one from the category of “law-abiding and\nresponsible,” in some cases, may be a close question. For\nexample, the crime leading to the firearm prohibition in\n\f 14\nSchrader—a misdemeanor arising from a fistfight—may be\nopen to debate. Those who commit felonies however, cannot\nprofit from our recognition of such borderline cases. For these\nreasons, we hold that those convicted of felonies are not\namong those entitled to possess arms. Accord Hamilton, 848\nF.3d at 624.\n\n B.\n\n Having established that a felony conviction removes one\nfrom the scope of the Second Amendment, Medina’s claim\npresumptively fails at the first step of the Schrader analysis.\nIn his as-applied challenge, however, Medina argues that an\nexamination of his “present, complete character” places him\nback within the class of “law-abiding, responsible citizens.”\nWe disagree.\n\n We need not decide today if it is ever possible for a\nconvicted felon to show that he may still count as a “law-\nabiding, responsible citizen.” To prevail on an as-applied\nchallenge, Medina would have to show facts about his\nconviction that distinguishes him from other convicted felons\nencompassed by the § 922(g)(1) prohibition. Medina has not\ndone so. He was convicted of felony fraud—a serious crime,\nmalum in se, that is punishable in every state. “American\ncourts have, without exception, included [fraud] within the\nscope of moral turpitude.” Jordan v. De George, 341 U.S.\n223, 229 (1951). Moreover, just a few years after the end of\nhis probation for his first crime, Medina was convicted of\nthree more counts of misdemeanor fraud. This disregard for\nthe basic laws and norms of our society is precisely what\ndifferentiates a criminal from someone who is “law-abiding.”\nTo the extent that it may be possible for a felon to show that\nhis crime was so minor or regulatory that he did not forfeit his\nright to bear arms by committing it, Medina has not done so.\n\f 15\n\n Nor can Medina’s present contributions to his\ncommunity, the passage of time, or evidence of his\nrehabilitation un-ring the bell of his conviction. While these\nand other considerations may play a role in some as-applied\nchallenges to firearm prohibitions, such as those brought by\nmisdemeanants or the mentally ill, we hold that for\nunpardoned convicted felons such as Medina, they are not\nrelevant. Accord Hamilton, 848 F.3d at 626. When the\nlegislature designates a crime as a felony, it signals to the\nworld the highest degree of societal condemnation for the act,\na condemnation that a misdemeanor does not convey. The\ncommission of a felony often results in the lifelong forfeiture\nof a number of rights, including the right to serve on a jury\nand the fundamental right to vote. See, e.g., 28 U.S.C.\n§ 1865(b)(5) (barring convicted felons from serving on a\nfederal jury); Richardson v. Ramirez, 418 U.S. 24, 56 (1974)\n(upholding state felon disenfranchisement). A prohibition on\nfirearm ownership, like these other disabilities, is a reasonable\nconsequence of a felony conviction that the legislature is\nentitled to impose without undertaking the painstaking case-\nby-case assessment of a felon’s potential rehabilitation.\n\n Because we conclude that convicted felons are excluded\nfrom the scope of the Second Amendment, and that nothing\nabout Medina’s crime distinguishes him from other felons,\nMedina’s claim fails. Because the claim fails at the first step\nof the Schrader analysis, we need not reach the second step.\n\n V. Conclusion\n The Supreme Court said that laws barring the possession\nof firearms by convicted felons are presumptively lawful. The\nhistorical record and the decisions of other circuits reinforce\nthis. Medina has not presented evidence in this case that\n\f 16\novercomes this presumption. We therefore affirm the decision\nof the district court.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360209/", "author_raw": "Opinion for the Court filed by Senior Circuit Judge SENTELLE."}]} | ROGERS | PILLARD | SENTELLE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582956/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Jorge L. MEDINA, Appellant v. Matthew G. WHITAKER, Appellee\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n\nArgued September 11, 2018 Decided January 18, 2019\n\n No. 17-5248\n\n JORGE L. MEDINA,\n APPELLANT\n\n v.\n\n MATTHEW G. WHITAKER,\n APPELLEE\n\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:16-cv-01718)\n\n\n\n Alan Gura argued the cause for appellant. With him on\nthe briefs was Jason D. Wright.\n\n Patrick G. Nemeroff, Attorney, U.S. Department of\nJustice, argued the cause for appellee. With him on the brief\nwere Jessie K. Liu, U.S. Attorney, and Mark B. Stern and\nMichael S. Raab, Attorneys.\n\n Before: ROGERS and PILLARD, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\f 2\n Opinion for the Court filed by Senior Circuit Judge\nSENTELLE.\n\n SENTELLE, Senior Circuit Judge: Jorge Medina was\nconvicted of falsifying his income on mortgage applications\ntwenty-seven years ago. Now, as a convicted felon, he is\nprohibited from owning firearms by federal law. He argues\nthat the application of this law to him violates the Second\nAmendment because he poses no heightened risk of gun\nviolence. Because we conclude that felons are not among the\nlaw-abiding, responsible citizens entitled to the protections of\nthe Second Amendment, we reject his contention and affirm\nthe district court’s dismissal order.\n\n I. Factual Background\n In 1990, Medina committed a felony. He grossly\nmisrepresented his income on a mortgage finance application\nto qualify for a $30,000 loan from the First Federal Bank of\nCalifornia. He was referred for criminal prosecution by the\nbank. He cooperated with the investigation, confessed to his\ncrime, and pled guilty in 1991 to a felony count of making a\nfalse statement to a lending institution in violation of 18\nU.S.C. § 1014. Although his crime was punishable by up to\nthirty years in prison, Medina was sentenced to only three\nyears of probation, home detention for sixty days, and a fine.\nAt the recommendation of the U.S. Attorney, the U.S.\nProbation Officer, and members of the community, Medina’s\nprobation was terminated after only one year.\n\n In the mid-1990s, Medina had another run-in with the\nlaw. In 1994 and 1995, he applied for resident hunting\nlicenses in the state of Wyoming, while not actually residing\nin that state. He claims that the false statements were\npredicated on a misunderstanding about the residency\nrequirements. Nevertheless, in 1996, he pled guilty to three\n\f 3\nmisdemeanor counts of making a false statement on a game\nlicense application in violation of Wyo. Stat. Ann. § 23-3-403\n(1989). The crime was classified as a misdemeanor and was\npunishable by a fine and six months’ imprisonment. Wyo.\nStat. Ann. § 23-6-202(a)(v) (1981). Medina was sentenced to\nan eight-year hunting license revocation and a fine.\n\n Medina has no further criminal record since his 1996\nconviction. He owns a successful business, supports a family,\nand engages in philanthropy. His rehabilitation has been\nrecognized by several important institutions. The California\nreal estate licensing board has continued to license him\nfollowing his 1991 conviction. The government of Canada\nrestored his right to enter the country in 2009. Even the victim\nof Medina’s false statement, the First Federal Bank of\nCalifornia, recognized his trustworthiness in 2005 by\nextending him a $1,000,000 line of credit.\n\n Notwithstanding his past misdeeds, Medina wants to own\na firearm for self-defense and recreation. He cannot do so,\nhowever, because his 1991 felony conviction bars him from\npossessing firearms under federal law.\n\n II. Legal Background\n Since 1968, anyone convicted of “a crime punishable by\nimprisonment for a term exceeding one year” is prohibited\nfrom owning firearms for life under 18 U.S.C. § 922(g)(1).\nExempted from this prohibition are those convicted of\nantitrust violations, those convicted of state misdemeanors\nwith a maximum term of imprisonment of two years or less,\nand those whose convictions have been pardoned or\nexpunged. 18 U.S.C. § 921(a)(20). Although the prohibition\napplies for life, the statute allows the Attorney General to\nrestore firearm rights to those deemed not “likely to act in a\nmanner dangerous to public safety.” 18 U.S.C. § 925(c). This\n\f 4\nremedy has been unavailable since 1992, however, because\nCongress has prohibited the Attorney General from using\npublic funds to investigate relief applications. To justify this\ndecision, Congress cited the difficulty of the task and the fact\nthat a wrong decision could result in “devastating\nconsequences.” S. Rep. No. 102-353 (1992).\n\n In 2008—forty years after the enactment of this statute—\nthe Supreme Court issued its decision in District of Columbia\nv. Heller, which clarified that the Second Amendment\nprotects the right of individual Americans to keep and bear\nfirearms for self-defense. 554 U.S. 570, 595 (2008). This\nright, like other fundamental rights, is not unlimited in scope.\nIn Heller, and again in McDonald v. City of Chicago, the\nCourt explained that the recognition of an individual right to\nbear firearms does not “cast doubt on longstanding\nprohibitions on the possession of firearms by felons.” Heller,\n554 U.S. at 626; McDonald, 561 U.S. 742, 786 (2010). The\npractice of barring convicted felons from possessing firearms\nis a “presumptively lawful regulatory measure[].” Heller, 554\nU.S. at 627 n.26.\n\n Notwithstanding the Supreme Court’s statements\nconcerning felon disarmament, the constitutionality of\n§ 922(g)(1) has been challenged several times. Litigation has\ntaken the form of both facial challenges to the statute and\nchallenges to the law’s application in particular\ncircumstances. Facial challenges to the statute’s\nconstitutionality have failed in every circuit to have\nconsidered the issue. United States v. Bogle, 717 F.3d 281 (2d\nCir. 2013) (per curiam); United States v. Barton, 633 F.3d\n168, 175 (3d Cir. 2011) (overruled on other grounds by\nBinderup v. Attorney General, 836 F.3d 336 (3d Cir. 2016));\nUnited States v. Moore, 666 F.3d 313, 318 (4th Cir. 2012);\nUnited States v. Joos, 638 F.3d 581, 586 (8th Cir. 2011);\n\f 5\nUnited States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir.\n2011); United States v. Rozier, 598 F.3d 768, 770–71 (11th\nCir. 2010); United States v. Williams, 616 F.3d 685, 692 (7th\nCir. 2010); United States v. Vongxay, 594 F.3d 1111, 1115\n(9th Cir. 2010); United States v. McCane, 573 F.3d 1037,\n1047 (10th Cir. 2009); United States v. Anderson, 559 F.3d\n348, 352 (5th Cir. 2009).\n\n As-applied challenges have fared only marginally better,\nand no circuit has held the law unconstitutional as applied to a\nconvicted felon. The Ninth Circuit takes the view that “felons\nare categorically different from the individuals who have a\nfundamental right to bear arms.” Vongxay, 594 F.3d at 1115.\nFour other circuits have, in a similar vein, also rejected as-\napplied challenges by convicted felons. See Hamilton v.\nPallozzi, 848 F.3d 614, 626–27 (4th Cir. 2017), cert. denied,\n138 S. Ct. 500 (2017); United States v. Rozier, 598 F.3d 768,\n770–71 (11th Cir. 2010); United States v. Scroggins, 599 F.3d\n433, 451 (5th Cir. 2010); In re United States, 578 F.3d 1195,\n1200 (10th Cir. 2009). The Seventh and Eighth Circuits, while\nleaving open the possibility of a successful felon as-applied\nchallenge, have yet to uphold one. See United States v.\nWoolsey, 759 F.3d 905, 909 (8th Cir. 2014); United States v.\nWilliams, 616 F.3d 685, 693–94 (7th Cir. 2010).\n\n Only one court has held § 922(g)(1) unconstitutional in\nany of its applications. In Binderup v. Attorney General, the\nThird Circuit, en banc, considered the application of the law\nto two misdemeanants and issued a well-reasoned opinion,\nconcurrence, and dissent that illustrates the various\nviewpoints in this debate. 836 F.3d 336 (3d Cir. 2016), cert.\ndenied, 137 S. Ct. 2323 (2017). The court ultimately\nconcluded that the law was unconstitutional as applied, but\nsplit sharply on the reasoning. The narrowest ground\nsupporting the judgment held that those who commit serious\n\f 6\ncrimes forfeit their Second Amendment right to arms. Id. at\n349. It further held that the “passage of time or evidence of\nrehabilitation” could not restore the lost right; only the\nseriousness of the crime was relevant to determine if a\nconvicted criminal fell outside the scope of the Second\nAmendment. Id. at 349–50. Applying this reasoning, the\nmisdemeanor crimes at issue in that case were not sufficiently\nserious to warrant disarmament. Id. at 353. In a concurrence\nto the judgment, five judges disagreed with the seriousness\ntest and took the view “that non-dangerous persons convicted\nof offenses unassociated with violence may rebut the\npresumed constitutionality of § 922(g)(1) on an as-applied\nbasis.” Id. at 357–58. (Hardiman, J., concurring in the\njudgment). Finally, seven judges dissented from the judgment\nand would have rejected the as-applied challenge to\n§ 922(g)(1). Although they agreed that the proper focus was\non the seriousness of the crime, they were satisfied that\ncrimes encompassed by the statute were sufficiently serious to\nwarrant disarmament. Id. at 381 (Fuentes, J., dissenting from\nthe judgment).\n\n In our 2013 Schrader v. Holder decision, we joined our\nsister circuits in rejecting a categorical Second Amendment\nchallenge to § 922(g)(1). 704 F.3d 980, 989 (D.C. Cir. 2013).\nIn that case, Schrader was barred from possessing firearms\nbecause of a forty-year-old, common-law misdemeanor\ncharge arising from a fistfight. Id. at 983. Although he was\nonly sentenced to a $100 fine, the misdemeanor carried no\nmaximum possible term of incarceration—triggering the\nlifetime firearm prohibition under § 922(g)(1). Id. Schrader\nargued that the statute violated the Second Amendment when\napplied to misdemeanants such as himself because it deprived\nlaw-abiding citizens of their right to bear arms. Id. at 984. To\nresolve this claim, we applied the familiar two-step Second\nAmendment analysis used by circuits throughout the country\n\f 7\nand adopted by this Court in Heller v. District of Columbia\n(Heller II), 670 F.3d 1244 (D.C. Cir. 2011). The first step\nrequires us to consider whether the challenged law regulates\nconduct “outside the Second Amendment’s protections.”\nSchrader, 704 F.3d at 988–89. If so, our inquiry ends, and\nonly rational basis scrutiny applies. If the law regulates\nactivity protected by the Second Amendment, however, the\nsecond step of the analysis shifts the burden to the\ngovernment to show that the regulation is “substantially\nrelated to an important governmental objective.” Id. at 989.\nApplying this test to Schrader’s claim, we found it\nunnecessary to apply step one because the law survived\nintermediate scrutiny even if it did regulate conduct within the\nscope of the Amendment. Id. The government’s interest in\nreducing crime was important and bore a substantial\nrelationship to prohibiting firearm ownership by “individuals\nwith prior criminal convictions.” Id. at 989–90.\n\n Although we upheld the facial constitutionality of\n§ 922(g)(1), we did not decide the constitutionality of the\nstatute as applied to Schrader individually. Id. at 991.\nSchrader had not challenged the application of the statute to\nhimself, but rather to common-law misdemeanants as a class.\nWe noted in dicta that, had he brought an individual as-\napplied challenge, the length of time between Schrader’s\nminor misdemeanor and the intervening years of law-abiding\nbehavior would make us hesitant “to find Schrader outside the\nclass of law-abiding, responsible citizens whose possession of\nfirearms is, under Heller, protected by the Second\nAmendment.” Id. (internal quotations omitted). Ultimately,\nhowever, we declined to consider such an argument for the\nfirst time on appeal. Id.\n\f 8\n III. Procedural Background\n Seizing upon the dicta in Schrader, Medina challenges\nthe application of § 922(g)(1) to himself individually. He\nargues that his responsible life for many years, the nonviolent\nnature of his felony conviction, and the lack of evidence that\nhe poses a heightened risk of gun violence, all make the law\nunconstitutional as applied to him. He sued the Attorney\nGeneral on August 24, 2016, to enjoin the enforcement of the\nstatute. Medina v. Sessions, 279 F. Supp. 3d 281 (D.D.C.\n2017). The Government moved to dismiss.\n\n The district court relied on our opinion in Schrader v.\nHolder to grant the Government’s motion to dismiss under\nFed. R. Civ. P. 12(b)(6). Id. at 289. The court applied both\nsteps of the Schrader analysis. First, it held that Medina failed\nthe first step because convicted felons fall outside of the\nSecond Amendment’s protection. Id. It cited the decisions of\nseveral other circuits in support of its conclusion that the\nFounders would have considered a convicted felon like\nMedina to be “unable to claim the right to bear a firearm.” Id.\nat 289–91. Alternatively, the district court held that, even if\nMedina did fall within the scope of the Second Amendment’s\nprotection, the law would survive the intermediate scrutiny\nanalysis required by the second step of Schrader. Id. at 291–\n92. The government’s important interest in public safety was\nsubstantially related to the law, and Congress was not limited\nto “case-by-case exclusions of persons who have been shown\nto be untrustworthy with weapons.” Id. at 291–92 (quoting\nSchrader, 704 F.3d at 991). Therefore, the district court\ngranted the Government’s motion to dismiss. Medina timely\nnoticed this appeal.\n\f 9\n IV. Analysis\n We review the dismissal of Medina’s complaint de novo.\nSchrader, 704 F.3d at 984. On appeal, Medina reiterates the\nconstitutional arguments made below and contests both\nprongs of the district court’s Schrader analysis. At step one,\nhe argues that the district court erred when it found him\noutside the scope of the Second Amendment’s protections\nbecause only those who are “dangerous” may be disarmed. He\nasserts that the district court was incorrect to conclude that\n“disregard for the law” was sufficient to justify disarmament.\nMedina also argues the district court failed to conduct a\nsufficiently individualized assessment of his crime, his life,\nand his rehabilitation before deciding that he was not within\nthe scope of the Second Amendment. At step two, Medina\nclaims that the district court should not have applied\nintermediate scrutiny at all. He argues that, once he shows\nthat he is not dangerous, an outright prohibition on his right to\npossess firearms is indistinguishable from the ban struck\ndown in Heller and fails under any form of scrutiny.\n\n A.\n\n The district court concluded that Medina was not within\nthe scope of the Second Amendment because his commission\nof a serious crime removes him from the category of “law-\nabiding and responsible” citizens. Medina challenges this and\nasserts that evidence of past “disregard for the law” is\ninsufficient to disarm him. In his view, the scope of the\nSecond Amendment only excludes dangerous individuals.\nSince the government cannot show that he is particularly\ndangerous, it offends the Second Amendment to bar him from\npossessing firearms.\n\n To resolve this question, we must look to tradition and\nhistory. “Constitutional rights are enshrined with the scope\n\f 10\nthey were understood to have when the people adopted them.”\nHeller, 554 U.S. at 634–35. We recall Justice Scalia’s\nadmonishment that “[h]istorical analysis can be difficult” and\nthat it involves “making nuanced judgments about which\nevidence to consult and how to interpret it.” McDonald, 561\nU.S. at 803–04 (Scalia, J., concurring). The Second\nAmendment was ratified in 1791, so we look to the public\nunderstanding of the right at that time to determine if a\nconvicted felon would fall outside the scope of its protection.\n\n As a starting point, we consider felony crime as it would\nhave been understood at the time of the Founding. In 1769,\nWilliam Blackstone defined felony as “an offense which\noccasions a total forfeiture of either lands, or goods, or both,\nat the common law, and to which capital or other punishment\nmay be superadded, according to the degree of guilt.” 4\nWilliam Blackstone, Commentaries on the Laws of England\n*95 (Harper ed. 1854). Felonies were so connected with\ncapital punishment that it was “hard to separate them.” Id. at\n*98. Felony crimes in England at the time included crimes of\nviolence, such as murder and rape, but also included non-\nviolent offenses that we would recognize as felonies today,\nsuch as counterfeiting currency, embezzlement, and desertion\nfrom the army. Id. at *90-103. Capital punishment for felonies\nwas “ubiquit[ous]” in the late Eighteenth Century and was\n“the standard penalty for all serious crimes.” See Baze v.\nRees, 553 U.S. 35, 94 (2008) (Thomas, J., concurring in the\njudgment) (citing Stuart Banner, The Death Penalty: An\nAmerican History 23 (2002)). For example, at the time of the\nSecond Amendment’s ratification, nonviolent crimes such as\nforgery and horse theft were capital offenses. E.g., Banner,\nsupra, at 18 (describing the escape attempts of men\ncondemned to die for forgery and horse theft in Georgia\nbetween 1790 and 1805).\n\f 11\n Admittedly, the penalties for many felony crimes quickly\nbecame less severe in the decades following American\nindependence and, by 1820, forfeiture had “virtually\ndisappeared in the United States.” Will Tress, Unintended\nCollateral Consequences: Defining Felony in the Early\nAmerican Republic, 57 Clev. St. L. Rev. 461, 468, 473\n(2009). Nevertheless, felonies were—and remain—the most\nserious category of crime deemed by the legislature to reflect\n“grave misjudgment and maladjustment.” Hamilton, 848 F.3d\nat 626. With this perspective, it is difficult to conclude that\nthe public, in 1791, would have understood someone facing\ndeath and estate forfeiture to be within the scope of those\nentitled to possess arms.\n\n Next, we consider whether historical evidence suggests\nthat only dangerous persons could be disarmed. None of the\nsources cited by Medina compels this conclusion. In fact, one\nsource he cites, a 1787 proposal before the Pennsylvania\nratifying convention, supports precisely the opposite\nunderstanding. The text of that proposal states: “no law shall\nbe passed for disarming the people or any of them unless for\ncrimes committed, or real danger of public injury from\nindividuals.” The Address and Reasons of Dissent of the\nMinority of the Convention of the State of Pennsylvania to\ntheir Constituents, reprinted in Bernard Schwartz, 2 The Bill\nof Rights: A Documentary History 662, 665 (1971) (emphasis\nadded). The use of the word “or” indicates that criminals, in\naddition to those who posed a “real danger” (such as the\nmentally ill, perhaps), were proper subjects of disarmament.\nAdditionally, during the revolution, the states of\nMassachusetts and Pennsylvania confiscated weapons\nbelonging to those who would not swear loyalty to the United\nStates. See United States v. Carpio-Leon, 701 F.3d 974, 980\n(4th Cir. 2012) (citing Saul Cornell & Nathan DeDino, A Well\nRegulated Right: The Early American Origins of Gun\n\f 12\nControl, 73 Fordham L. Rev. 487, 506 (2004)). As these\nexamples show, the public in the founding era understood that\nthe right to bear arms could exclude at least some nonviolent\npersons.\n\n A number of other circuits have also considered this issue\nand have concluded that history and tradition support the\ndisarmament of those who were not (or could not be) virtuous\nmembers of the community. At least four circuits have\nendorsed the view that “most scholars of the Second\nAmendment agree that the right to bear arms was tied to the\nconcept of a virtuous citizenry and that, accordingly, the\ngovernment could disarm ‘unvirtuous citizens.’” United\nStates v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010). See\nalso United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir.\n2010); Binderup v. Attorney General, 836 F.3d 336, 348 (3d\nCir. 2016) 1; United States v. Carpio-Leon, 701 F.3d 974, 979\n(4th Cir. 2012). The “virtuous citizen” theory is drawn from\n“classical republican political philosophy” and stresses that\nthe “right to arms does not preclude laws disarming the\nunvirtuous (i.e. criminals) or those who, like children or the\nmentally imbalanced, are deemed incapable of virtue.” United\nStates v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009) (quoting\nGlenn Harlan Reynolds, A Critical Guide to the Second\nAmendment, 62 Tenn. L. Rev. 461, 480 (1995)). Several\ncircuits have relied on this theory to uphold the\nconstitutionality of modern laws banning the possession of\nfirearms by illegal aliens and juveniles—classes of people\nwho might otherwise show, on a case-by-case basis, that they\nare not particularly dangerous. See Carpio-Leon, 701 F.3d at\n979–81; Rene E., 583 F.3d at 15. In considering these\ndecisions, we recognize that there is “an ongoing debate\n\n1\n This rationale was supported by seven of the fifteen judges of the\nen banc court. Binderup, 836 F.3d at 339.\n\f 13\namong historians about the extent to which the right to bear\narms in the founding period turned on concerns about the\npossessor’s virtue.” Rene E., 583 F.3d at 16. While we need\nnot accept this theory outright, its support among courts and\nscholars serves as persuasive evidence that the scope of the\nSecond Amendment was understood to exclude more than just\nindividually identifiable dangerous individuals.\n\n With few primary sources directly on point, we finally\nconsider the guidance from the Supreme Court in Heller.\nAlthough the Court declined to “expound upon the historical\njustifications” for felon firearm prohibitions, it described them\nas “longstanding” and “presumptively lawful.” Heller, 554\nU.S. at 626, 627 n.26, 635. Felonies encompass a wide variety\nof non-violent offenses, and we see no reason to think that the\nCourt meant “dangerous individuals” when it used the word\nfelon.\n\n On balance, the historical evidence and the Supreme\nCourt’s discussion of felon disarmament laws leads us to\nreject the argument that non-dangerous felons have a right to\nbear arms. As a practical matter, this makes good sense.\nUsing an amorphous “dangerousness” standard to delineate\nthe scope of the Second Amendment would require the\ngovernment to make case-by-case predictive judgments\nbefore barring the possession of weapons by convicted\ncriminals, illegal aliens, or perhaps even children. We do not\nthink the public, in ratifying the Second Amendment, would\nhave understood the right to be so expansive and limitless. At\nits core, the Amendment protects the right of “law-abiding,\nresponsible citizens to use arms in defense of hearth and\nhome.” Heller, 554 U.S. at 635. Whether a certain crime\nremoves one from the category of “law-abiding and\nresponsible,” in some cases, may be a close question. For\nexample, the crime leading to the firearm prohibition in\n\f 14\nSchrader—a misdemeanor arising from a fistfight—may be\nopen to debate. Those who commit felonies however, cannot\nprofit from our recognition of such borderline cases. For these\nreasons, we hold that those convicted of felonies are not\namong those entitled to possess arms. Accord Hamilton, 848\nF.3d at 624.\n\n B.\n\n Having established that a felony conviction removes one\nfrom the scope of the Second Amendment, Medina’s claim\npresumptively fails at the first step of the Schrader analysis.\nIn his as-applied challenge, however, Medina argues that an\nexamination of his “present, complete character” places him\nback within the class of “law-abiding, responsible citizens.”\nWe disagree.\n\n We need not decide today if it is ever possible for a\nconvicted felon to show that he may still count as a “law-\nabiding, responsible citizen.” To prevail on an as-applied\nchallenge, Medina would have to show facts about his\nconviction that distinguishes him from other convicted felons\nencompassed by the § 922(g)(1) prohibition. Medina has not\ndone so. He was convicted of felony fraud—a serious crime,\nmalum in se, that is punishable in every state. “American\ncourts have, without exception, included [fraud] within the\nscope of moral turpitude.” Jordan v. De George, 341 U.S.\n223, 229 (1951). Moreover, just a few years after the end of\nhis probation for his first crime, Medina was convicted of\nthree more counts of misdemeanor fraud. This disregard for\nthe basic laws and norms of our society is precisely what\ndifferentiates a criminal from someone who is “law-abiding.”\nTo the extent that it may be possible for a felon to show that\nhis crime was so minor or regulatory that he did not forfeit his\nright to bear arms by committing it, Medina has not done so.\n\f 15\n\n Nor can Medina’s present contributions to his\ncommunity, the passage of time, or evidence of his\nrehabilitation un-ring the bell of his conviction. While these\nand other considerations may play a role in some as-applied\nchallenges to firearm prohibitions, such as those brought by\nmisdemeanants or the mentally ill, we hold that for\nunpardoned convicted felons such as Medina, they are not\nrelevant. Accord Hamilton, 848 F.3d at 626. When the\nlegislature designates a crime as a felony, it signals to the\nworld the highest degree of societal condemnation for the act,\na condemnation that a misdemeanor does not convey. The\ncommission of a felony often results in the lifelong forfeiture\nof a number of rights, including the right to serve on a jury\nand the fundamental right to vote. See, e.g., 28 U.S.C.\n§ 1865(b)(5) (barring convicted felons from serving on a\nfederal jury); Richardson v. Ramirez, 418 U.S. 24, 56 (1974)\n(upholding state felon disenfranchisement). A prohibition on\nfirearm ownership, like these other disabilities, is a reasonable\nconsequence of a felony conviction that the legislature is\nentitled to impose without undertaking the painstaking case-\nby-case assessment of a felon’s potential rehabilitation.\n\n Because we conclude that convicted felons are excluded\nfrom the scope of the Second Amendment, and that nothing\nabout Medina’s crime distinguishes him from other felons,\nMedina’s claim fails. Because the claim fails at the first step\nof the Schrader analysis, we need not reach the second step.\n\n V. Conclusion\n The Supreme Court said that laws barring the possession\nof firearms by convicted felons are presumptively lawful. The\nhistorical record and the decisions of other circuits reinforce\nthis. Medina has not presented evidence in this case that\n\f 16\novercomes this presumption. We therefore affirm the decision\nof the district court.\n[END_CASE]",
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7,333,521 | United States v. Anthony FIELDS | United States v. Fields | 2019-01-18 | Criminal No. 18-cr-00267-01, -02, -04, -05, -06 (APM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Mehta", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7251440/", "author_raw": ""}]} | MEHTA | MEHTA | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7333521/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: United States v. Anthony FIELDS\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,469 | United States v. Douglas F. GREER, M.D. | United States v. Greer | 2019-01-22 | Civil Action No. 16-789 (RMC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Collyer", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252389/", "author_raw": ""}]} | COLLYER | COLLYER | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334469/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: United States v. Douglas F. GREER, M.D.\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,584,766 | JUDICIAL WATCH, INC., Appellant v. UNITED STATES DEPARTMENT OF DEFENSE and Central Intelligence Agency, Appellees | Judicial Watch, Inc. v. U.S. Dep't of Def. | 2019-01-25 | 18-5017 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Rogers, Srinivasan, Ginsburg", "parties": "", "opinions": [{"author": "Opinion for the court filed by Circuit Judge ROGERS", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 9, 2018 Decided January 25, 2019\n\n No. 18-5017\n\n JUDICIAL WATCH, INC.,\n APPELLANT\n\n v.\n\n UNITED STATES DEPARTMENT OF DEFENSE AND CENTRAL\n INTELLIGENCE AGENCY,\n APPELLEES\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:16-cv-00360)\n\n\n Lauren M. Burke argued the cause and filed the briefs for\nappellant. Paul J. Orfanedes entered an appearance.\n\n Samantha L. Chaifetz, Attorney, U.S. Department of\nJustice, argued the cause for appellees. With her on the brief\nwas Mark B. Stern, Attorney.\n\n Before: ROGERS and SRINIVASAN, Circuit Judges, and\nGINSBURG, Senior Circuit Judge.\n\n Opinion for the court filed by Circuit Judge ROGERS.\n\f 2\n ROGERS, Circuit Judge: Judicial Watch unsuccessfully\nrequested, pursuant to the Freedom of Information Act\n(“FOIA”), release of five memoranda that memorialized advice\nto the President and his top national security advisers when the\nPresident was considering whether to order a military strike on\nOsama bin Laden’s compound in Pakistan. On appeal, Judicial\nWatch challenges the government agencies’ invocation of\nFOIA Exemptions 1, 3, and 5 as allowing the government to\noperate under secret legal principles when “[t]he purpose of\nFOIA is to shield the government from operating secretly under\nthe guise of legality.” Appellant’s Br. 7. For the following\nreasons, we hold that the memoranda responsive to Judicial\nWatch’s FOIA request are protected from disclosure under the\npresidential communications privilege in Exemption 5 and\naffirm.\n\n I.\n\n FOIA is a major breakthrough in providing government\ntransparency, see EPA v. Mink, 410 U.S. 73, 79 (1973),\n“set[ting] forth a policy of broad disclosure of Government\ndocuments in order ‘to ensure an informed citizenry, vital to\nthe functioning of a democratic society,’” FBI v. Abramson,\n456 U.S. 615, 621 (1982) (citations omitted). Congress\ndetermined, however, that “legitimate governmental and\nprivate interests could be harmed by release of certain types of\ninformation and provided nine specific exemptions under\nwhich disclosure could be refused.” Id. The agencies invoked\nExemptions 1, 3, and 5 in denying Judicial Watch’s disclosure\nrequest.\n\n Exemption 1 permits agencies to withhold materials\n“specifically authorized under criteria established by an\nExecutive order to be kept secret in the interest of national\ndefense or foreign policy” and properly classified pursuant to\n\f 3\nsuch an Executive order. 5 U.S.C. § 552(b)(1). Executive\nOrder No. 13,526 allows agencies to classify material\npertaining to specified categories as falling within Exemption\n1 if “unauthorized disclosure could reasonably be expected to\ncause identifiable or describable damage to the national\nsecurity.” Exec. Order No. 13,526, § 1.4, 75 Fed. Reg. 707,\n709 (Dec. 29, 2009). Exemption 3 permits the withholding of\nmaterial “specifically exempted from disclosure by statute”\nthat “establishes particular criteria for withholding or refers to\nparticular types of matters to be withheld.” 5 U.S.C.\n§ 552(b)(3)(A)(ii). Section 102A(i)(1) of the National Security\nAct of 1947, 50 U.S.C. § 3024(i)(1), authorizes the withholding\nof materials relating to “intelligence sources and methods.” 50\nU.S.C. § 403(d)(3); Larson v. Dep’t of State, 565 F.3d 857,\n865 (D.C. Cir. 2009); see also CIA v. Sims, 471 U.S. 159, 167\n(1985). Exemption 5 protects “inter-agency or intra-agency\nmemorandums . . . that would not be available by law to a party\nother than an agency in litigation with the agency[.]” 5 U.S.C.\n§ 552(b)(5); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132,\n149 (1975). It covers the presidential communications\nprivilege, the deliberative process privilege, and the attorney-\nclient privilege. See Loving v. Dep’t of Def., 550 F.3d 32, 37\n(D.C. Cir. 2008). In accord with the congressional\ncommitment to transparency, FOIA exemptions are to be\n“narrowly construed,” yet not denied “meaningful reach and\napplication.” John Doe Agency v. John Doe Corp., 493 U.S.\n146, 152 (1989).\n\n In December 2015, Judicial Watch requested the\nDepartment of Defense and the Central Intelligence Agency\n(“CIA”) disclose information related to memoranda regarding\nthe capture or killing of Osama bin Laden in 2011. Earlier,\nafter the raid on Osama bin Laden’s compound in Pakistan had\nbeen successfully completed, the General Counsel of the CIA\nstated in prepared remarks at Harvard Law School that “[b]y\n\f 4\nthe time the force was launched, the U.S. Government had\ndetermined with confidence that . . . the operation would be\nconducted in complete accordance with applicable U.S. and\ninternational legal restrictions and principles.” Stephen W.\nPreston, Remarks at Harvard Law School (Apr. 10, 2012),\nhttps://www.cia.gov/news-information/speeches-\ntestimony/2012-speeches-testimony/cia-general-counsel-\nharvard.html (Apr. 20, 2012) (quoted in Decl. of Antoinette B.\nShiner, Info. Rev. Off’r for the Litig’n. Info. Rev. Off., CIA\n(“Shiner Decl.”) ¶ 7 (Aug. 16, 2016)). Ultimately, Judicial\nWatch refined its requests to five memoranda:\n\n A memorandum written by Pentagon General Counsel\n Jeh C. Johnson concerning any violation of Pakistani\n sovereignty in seeking, capturing, and/or killing Osama\n bin Laden in 2011.\n\n A memorandum written by CIA General Counsel\n Stephen W. Preston regarding when the administration\n must alert congressional leaders about the raid, capture,\n and/or killing of Osama bin Laden in 2011.\n\n A memorandum written by National Security Council\n Legal Adviser Mary B. DeRosa concerning a Navy\n SEAL team going into a raid with the intention of\n killing as a default option during the search, raid,\n capture and/or killing of Osama bin Laden in 2011.\n\n A memorandum written by National Security Council\n Legal Adviser Mary B. DeRosa regarding plans for\n detaining Osama bin Laden in the event of his capture.\n\n A memorandum written by Joint Chiefs of Staff Legal\n Adviser Rear Admiral James W. Crawford III regarding\n options and/or plans for Osama bin Laden’s burial.\n\f 5\n\n After Judicial Watch filed suit in February 2016, the\nagencies moved for summary judgment, arguing the five\nmemoranda were protected in full under the presidential\ncommunications privilege in Exemption 5 because they\ncontained confidential analyses and recommendations that\nwere solicited by, and communicated to, the President and his\nclosest national security advisers. Further, because the\nmemoranda related to certain courses of action being\ncontemplated by the President, they argued the memoranda\nwere also protected by the deliberative process and the\nattorney-client privileges in Exemption 5. And because the\nmemoranda contained classified information and information\nprotected by the National Security Act, the agencies argued that\ntheir disclosure could reasonably be expected to harm national\nsecurity and therefore were protected under Exemptions 1 and\n3. The agencies stated that a line-by-line review of the\nmemoranda indicated no reasonably segregable, non-exempt\nportions could be publicly released.\n\n Sworn declarations accompanying the summary judgment\nmotion explained that “[b]ecause the risks and the potential\nconsequences associated with conducting a raid . . . were\nsubstantial, the President and his national security team\nconsidered a number of variables and carefully weighed\ndifferent options for the operation.” Shiner Decl. ¶ 7. “Top\nnational security lawyers from the CIA, Department of\nDefense, and the National Security Council formed an integral\npart of that decision-making process.” Id. Their advice\n“served as one consideration, among others, weighed by the\nPresident and his national security advis[e]rs in advance of the\nPresident’s decision to authorize the raid on bin Laden’s\ncompound.” Id. ¶ 8. That advice was “memorialize[d]” in five\nwritten memoranda. Id. ¶ 7. Although certain details of the\nraid have been made public, the parties to this legal advice have\n\f 6\nmaintained the confidentiality of these communications. See\nid. ¶ 8; Decl. of Mark H. Herrington, Assoc. Dep. Gen.\nCounsel, Dep’t of Def. (“Herrington Decl.”) ¶ 8 (Aug. 17,\n2016).\n\n The district court granted the motion for summary\njudgment, ruling the five memoranda were protected from\ndisclosure under Exemptions 1, 3, and 5. Judicial Watch, Inc.\nv. Dep’t of Defense, 245 F. Supp. 3d 19 (D.D.C. 2017). It\ndenied Judicial Watch’s motion to alter or amend the judgment\nafter the government clarified that its declarations did not\naddress when the memoranda were prepared, ruling that the\npresidential communications privilege protected the\nmemoranda from disclosure regardless of whether the written\nmemoranda were created before or after briefing.\n\n Judicial Watch appeals. Our review of the grant of\nsummary judgment is de novo, see Morley v. CIA, 508 F.3d\n1108, 1114 (D.C. Cir. 2007), and our review of denial of the\nmotion to alter or amend judgment pursuant to Federal Rule of\nCivil Procedure 59(e) is for abuse of discretion, Ciralsky v.\nCIA, 355 F.3d 661, 671 (D.C. Cir. 2004).\n\n II.\n\n The Supreme Court has long recognized that “[a] President\nand those who assist him must be free to explore alternatives in\nthe process of shaping policies and making decisions and to do\nso in a way many would be unwilling to express except\nprivately.” United States v. Nixon, 418 U.S. 683, 708 (1974)\n(Nixon I). The Court has conceived of the presidential\ncommunications privilege as “fundamental to the operation of\nGovernment and inextricably rooted in the separation of\npowers under the Constitution” because it “relates to the\neffective discharge of a President’s powers[.]” Id. at 708, 711.\n\f 7\nThe privilege protects “the public interest in candid, objective,\nand even blunt or harsh opinions in Presidential\ndecisionmaking.” Id. at 708. The Court concluded these\nconsiderations “justify[] a presumptive privilege for\nPresidential communications.” Id. The scope of the\npresidential communications privilege is thus defined in terms\nof communications that involve the Office of the President, the\nexercise of the President’s responsibilities, and confidential\npresidential decisionmaking. Nixon v. Adm’r of Gen. Servs.,\n433 U.S. 425, 449 (1977) (Nixon II). The Supreme Court has\nreaffirmed that the President’s ability to obtain frank and\ninformed opinions from his senior advisers is vital to the\nPresident’s effective conduct of his duties. Id. at 448–49.\n\n Bridging the gap since the Nixon cases, this court\nexamined the history and scope of the privilege in In re Sealed\nCase, 121 F.3d 729, 744 (D.C. Cir. 1997). The court concluded\nthat the presidential communications privilege is properly\ninvoked with respect to “documents or other materials that\nreflect presidential decisionmaking and deliberations and that\nthe President believes should remain confidential.” Id.\nRegarding its breadth, the court observed that the privilege “is\nrooted in the need for confidentiality to ensure that presidential\ndecisionmaking is of the highest caliber,” id. at 750, and yet\nmust “be construed as narrowly as is consistent with ensuring\nthat the confidentiality of the President’s decisionmaking\nprocess is adequately protected,” id. at 752. To “best serve[]”\nthe public interest, the court held that the privilege covered\n“communications made by presidential advisers in the course\nof preparing advice for the President . . . even when these\ncommunications are not made directly to the President.” Id. at\n751–52. “Given the need to provide sufficient elbow room for\nadvisers to obtain information from all knowledgeable\nsources,” the privilege must extend beyond communications\nmade directly to the President to include communications\n\f 8\nsolicited and received by the President’s “immediate White\nHouse advisers” or even certain members of their staffs, but\n“should not extend to staff outside the White House in\nexecutive branch agencies.” Id. at 752. Once the privilege\napplies, the entirety of the document is protected. See id. at\n745.\n\n The court further elaborated on the scope of the privilege\nwhen Judicial Watch requested documents from the Office of\nthe Pardon Attorney and the Office of the Deputy Attorney\nGeneral relating to pardon grants and applications considered\nby the President. See Judicial Watch, Inc. v. Dep’t of Justice,\n365 F.3d 1108, 1110 & n.2 (D.C. Cir. 2004). Relying on Nixon\nI and II and the principles in In re Sealed Case, the court held\nthat the privilege protected from disclosure pardon documents\n“solicited and received” by the President or his immediate\nWhite House advisers but not “all agency documents prepared\nin the course of developing the Deputy Attorney General’s\npardon recommendations for the President.” Id. at 1114. In\ndeclining to extend the reach of the privilege, the court\nexplained that the same confidentiality and candor concerns\ncalling for application of the president communications\nprivilege “do not apply as forcefully,” id. at 1115, in view of\nthe stages of intermediate review of staff pardon\nrecommendations, some of which never reach the President.\n\n Here, the extraordinary decision confronting the President\nin considering whether to order a military strike on Osama bin\nLaden’s compound in Pakistan cries out for confidentiality, and\nthe district court’s application of the presidential\ncommunications privilege rested on consideration of the\nappropriate factors, see Judicial Watch, 245 F. Supp. 3d at 28–\n30. The decision required the exercise of an informed\njudgment by the President as Commander in Chief, U.S.\nCONST. art. 2, § 2, on a highly sensitive subject with serious\n\f 9\ndirect and collateral consequences for foreign relations that\nrequired a high degree of protection for “the President’s\nconfidentiality and the candor of his immediate White House\nadvisers,” Judicial Watch, 365 F.3d at 1123. Declarations filed\nwith the motion for summary judgment explained that the\nPresident and his immediate advisers solicited and received the\nadvice of the top national security lawyers from the\nDepartment of Defense, CIA, and National Security Council\nrelating to a potential military counterterrorism operation. See,\ne.g., Shiner Decl. ¶¶ 7–8. The legal advice memorialized in\neach memorandum concerned that covert military operation\nand was shared only with the President and his closest advisers.\nId. The non-disclosure of that advice thereby protects “the\nPresident’s ability to obtain frank and informed opinions from\nhis senior advis[e]rs,” an “acute [concern] in the national\nsecurity context, particularly in situations . . . where the\nPresident is formulating a decision on a sensitive operation\nwith substantial foreign policy impacts.” Id. ¶ 9; see\nHerrington Decl. ¶ 7. Although the presidential\ncommunications privilege is a qualified privilege, subject to an\nadequate showing of need, FOIA requests cannot overcome the\nprivilege because “the particular purpose for which a FOIA\nplaintiff seeks information is not relevant in determining\nwhether FOIA requires disclosure,” Loving, 550 F.3d at 40\n(quoting In re Sealed Case, 121 F.3d at 737 n.5).\n\n Judicial Watch does not contest the government’s\nstatement that “the memoranda memorialize legal advice that\nwas briefed to the President and his closest advis[e]rs.” Shiner\nDecl. ¶ 8. Neither does it suggest the presidential\ncommunications privilege is inapplicable where there is a\n“need to protect military, diplomatic, or sensitive national\nsecurity secrets,” Nixon II, 433 U.S. at 447 (internal quotation\nmarks and citation omitted). Instead Judicial Watch points out\nthat it neither asked the government to disclose whether the\n\f 10\nmemoranda or their contents were communicated to the\nPresident or his senior advisers, nor for any presidential\ndeliberations or deliberative materials, and “asked only that the\nmemoranda be produced.” Appellant’s Br. 8. Further, Judicial\nWatch observes, the government makes no claim that the\nauthors of the memoranda briefed the President or his senior\nadvisers directly, or even that they were the intended recipients\nof the memoranda or reviewed the memoranda. Judicial Watch\nunderstands the government only to claim that the memoranda\n“memorialize” the analysis and advice briefed, thereby\nimplying they were prepared after the briefing. This is\nsignificant, Judicial Watch maintains, because of lingering\n“unanswered questions,” Appellant’s Br. 10. The district\ncourt’s response to the government’s notice of clarification left\nunknown when the briefing took place in relation to\npreparation of the memoranda, who gave the briefing, and how\nthe briefers obtained the analysis and the advice they conveyed\nto the President and his senior advisers. As a result, Judicial\nWatch concludes, the district court failed to construe the\npresidential privilege narrowly. “[A]llow[ing] the President\nand Executive Branch to justify its actions without public\noversight . . . would allow [them] to engage in governance by\n‘secret law.’” Id. (citation omitted).\n\n Judicial Watch makes no effort to reconcile its position\nthat the timing of the preparation of the memoranda defeats\napplication of the presidential communications privilege with\nthis court’s precedent. In In re Sealed Case, 121 F.3d at 758,\nthe court held that notes taken to memorialize meetings and\ntelephone calls involving top White House advisers about the\ninvestigation of the former Secretary of Agriculture were\nprotected from disclosure by the presidential communications\nprivilege because the notes reflected those advisers’\ncommunications. In Loving, the court held that the privilege\napplies to “documents reflecting presidential decisionmaking\n\f 11\nand deliberations, regardless of whether the documents are\npredecisional or not.” 550 F.3d at 37 (internal quotation marks\nand citation omitted).\n\n That Judicial Watch claims only to seek the memoranda\nand not presidential deliberations or deliberative materials\nsimilarly ignores precedent. The district court properly relied\non the government’s declarations, see Larkin v. Dep’t of State,\n565 F.3d 857, 862 (D.C. Cir. 2009), that the requested records\nreflected the President’s decisionmaking with regard to the\nmilitary strike. Judicial Watch, 245 F. Supp. 3d at 28–29; see\nShiner Decl. ¶¶ 9–10; Herrington Decl. ¶¶ 6–8. The\nmemoranda Judicial Watch seeks are “documents . . . that\nreflect presidential . . . deliberations and that the President\nbelieves should remain confidential.” Judicial Watch, 365\nF.3d at 1113 (quoting In re Sealed Case, 121 F.3d at 744).\nDisclosure of the memoranda would reveal the President’s\ndeliberations. See In re Sealed Case, 121 F.3d at 744.\n\n Judicial Watch’s suggestion that “unanswered questions,”\nAppellant’s Br. 10, preclude application of the presidential\ncommunications privilege fails for similar reasons. There is no\nbasis on this record to conclude that application of the privilege\nis contrary to the limitations identified in our precedent. See\nJudicial Watch, 365 F.3d at 1115; In re Sealed Case, 121 F.3d\nat 752. In In re Sealed Case, the court held that notes of\nmeetings among White House advisers and drafts of press\nbriefings were protected from disclosure by the privilege, even\nthough it was undisputed that the President never saw these\ndocuments, id. at 746–47. Nothing in the court’s analysis\nimplied that additional information would be required about\nwho took the notes or how the discussions at the meetings were\nultimately communicated to the President. Similarly, here, to\ndetermine the applicability of the presidential communications\nprivilege, the government’s declarations did not need to be\n\f 12\nmore specific about who gave the briefings or how those\nconducting the briefings obtained the analysis and advice they\nconveyed, or the relationship of the briefer to the authors, the\nPresident, and the President’s senior advisers, or whether and\nhow the results of the briefings were later conveyed to the\nauthors of the memoranda. Even assuming such information\nwould not be privileged, Judicial Watch fails to show why it\nwould be needed to determine the applicability of the\npresidential communications privilege. It sufficed that the\nPresident and his top national security advisers “solicited and\nreceived,” Judicial Watch, 365 F.3d at 1114, the legal advice\nmemorialized in the five memoranda sought by Judicial Watch.\n\n Finally, Judicial Watch contends that application of the\npresidential communications privilege “would allow the\nPresident and Executive Branch to engage in governance by\n‘secret law.’” Appellant’s Br. 10 (citation omitted). The\n“secret law” doctrine is typically applicable to “opinions and\ninterpretations which embody the agency’s effective law and\npolicy,” Sears, Roebuck & Co., 421 U.S. at 153 (internal\nquotation marks and citation omitted); see Afshar v. Dep’t of\nState, 702 F.2d 1125, 1139–41 (D.C. Cir. 1983). The materials\nJudicial Watch seeks do not constitute or establish “law” in the\nsense of setting forth a decision that binds subordinates or a\nregulated party. Rather, the materials document advice given\nup the chain to someone (the President) who then made a\ndecision. The government’s declaration explains that the\nadvice contained in the memoranda was not an “authorization\nto conduct a given activity, but, rather, one step in the\nExecutive branch deliberations.” Shiner Decl. ¶ 9. Although\nthere may be some overlap between the presidential\ncommunications and deliberative process privileges under\nExemption 5, see Judicial Watch, 365 F.3d at 1114–15, to the\nextent this “secret law” argument echoes Judicial Watch’s\n\f 13\narguments against applying the deliberative process privilege,\nsee Appellant’s Br. 17–19, the court has no need to address it.\n\n Accordingly, because the presidential communications\nprivilege applies to the totality of the five memoranda that\nJudicial Watch requests, and the question of segregability of\nnon-exempt material is therefore not presented, we affirm the\ngrant of summary judgment and the denial of the motion to\nalter or amend the judgment.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362019/", "author_raw": "Opinion for the court filed by Circuit Judge ROGERS"}]} | ROGERS | SRINIVASAN | GINSBURG | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584766/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: JUDICIAL WATCH, INC., Appellant v. UNITED STATES DEPARTMENT OF DEFENSE and Central Intelligence Agency, Appellees\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\nArgued October 9, 2018 Decided January 25, 2019\n\n No. 18-5017\n\n JUDICIAL WATCH, INC.,\n APPELLANT\n\n v.\n\n UNITED STATES DEPARTMENT OF DEFENSE AND CENTRAL\n INTELLIGENCE AGENCY,\n APPELLEES\n\n\n Appeal from the United States District Court\n for the District of Columbia\n (No. 1:16-cv-00360)\n\n\n Lauren M. Burke argued the cause and filed the briefs for\nappellant. Paul J. Orfanedes entered an appearance.\n\n Samantha L. Chaifetz, Attorney, U.S. Department of\nJustice, argued the cause for appellees. With her on the brief\nwas Mark B. Stern, Attorney.\n\n Before: ROGERS and SRINIVASAN, Circuit Judges, and\nGINSBURG, Senior Circuit Judge.\n\n Opinion for the court filed by Circuit Judge ROGERS.\n\f 2\n ROGERS, Circuit Judge: Judicial Watch unsuccessfully\nrequested, pursuant to the Freedom of Information Act\n(“FOIA”), release of five memoranda that memorialized advice\nto the President and his top national security advisers when the\nPresident was considering whether to order a military strike on\nOsama bin Laden’s compound in Pakistan. On appeal, Judicial\nWatch challenges the government agencies’ invocation of\nFOIA Exemptions 1, 3, and 5 as allowing the government to\noperate under secret legal principles when “[t]he purpose of\nFOIA is to shield the government from operating secretly under\nthe guise of legality.” Appellant’s Br. 7. For the following\nreasons, we hold that the memoranda responsive to Judicial\nWatch’s FOIA request are protected from disclosure under the\npresidential communications privilege in Exemption 5 and\naffirm.\n\n I.\n\n FOIA is a major breakthrough in providing government\ntransparency, see EPA v. Mink, 410 U.S. 73, 79 (1973),\n“set[ting] forth a policy of broad disclosure of Government\ndocuments in order ‘to ensure an informed citizenry, vital to\nthe functioning of a democratic society,’” FBI v. Abramson,\n456 U.S. 615, 621 (1982) (citations omitted). Congress\ndetermined, however, that “legitimate governmental and\nprivate interests could be harmed by release of certain types of\ninformation and provided nine specific exemptions under\nwhich disclosure could be refused.” Id. The agencies invoked\nExemptions 1, 3, and 5 in denying Judicial Watch’s disclosure\nrequest.\n\n Exemption 1 permits agencies to withhold materials\n“specifically authorized under criteria established by an\nExecutive order to be kept secret in the interest of national\ndefense or foreign policy” and properly classified pursuant to\n\f 3\nsuch an Executive order. 5 U.S.C. § 552(b)(1). Executive\nOrder No. 13,526 allows agencies to classify material\npertaining to specified categories as falling within Exemption\n1 if “unauthorized disclosure could reasonably be expected to\ncause identifiable or describable damage to the national\nsecurity.” Exec. Order No. 13,526, § 1.4, 75 Fed. Reg. 707,\n709 (Dec. 29, 2009). Exemption 3 permits the withholding of\nmaterial “specifically exempted from disclosure by statute”\nthat “establishes particular criteria for withholding or refers to\nparticular types of matters to be withheld.” 5 U.S.C.\n§ 552(b)(3)(A)(ii). Section 102A(i)(1) of the National Security\nAct of 1947, 50 U.S.C. § 3024(i)(1), authorizes the withholding\nof materials relating to “intelligence sources and methods.” 50\nU.S.C. § 403(d)(3); Larson v. Dep’t of State, 565 F.3d 857,\n865 (D.C. Cir. 2009); see also CIA v. Sims, 471 U.S. 159, 167\n(1985). Exemption 5 protects “inter-agency or intra-agency\nmemorandums . . . that would not be available by law to a party\nother than an agency in litigation with the agency[.]” 5 U.S.C.\n§ 552(b)(5); see NLRB v. Sears, Roebuck & Co., 421 U.S. 132,\n149 (1975). It covers the presidential communications\nprivilege, the deliberative process privilege, and the attorney-\nclient privilege. See Loving v. Dep’t of Def., 550 F.3d 32, 37\n(D.C. Cir. 2008). In accord with the congressional\ncommitment to transparency, FOIA exemptions are to be\n“narrowly construed,” yet not denied “meaningful reach and\napplication.” John Doe Agency v. John Doe Corp., 493 U.S.\n146, 152 (1989).\n\n In December 2015, Judicial Watch requested the\nDepartment of Defense and the Central Intelligence Agency\n(“CIA”) disclose information related to memoranda regarding\nthe capture or killing of Osama bin Laden in 2011. Earlier,\nafter the raid on Osama bin Laden’s compound in Pakistan had\nbeen successfully completed, the General Counsel of the CIA\nstated in prepared remarks at Harvard Law School that “[b]y\n\f 4\nthe time the force was launched, the U.S. Government had\ndetermined with confidence that . . . the operation would be\nconducted in complete accordance with applicable U.S. and\ninternational legal restrictions and principles.” Stephen W.\nPreston, Remarks at Harvard Law School (Apr. 10, 2012),\nhttps://www.cia.gov/news-information/speeches-\ntestimony/2012-speeches-testimony/cia-general-counsel-\nharvard.html (Apr. 20, 2012) (quoted in Decl. of Antoinette B.\nShiner, Info. Rev. Off’r for the Litig’n. Info. Rev. Off., CIA\n(“Shiner Decl.”) ¶ 7 (Aug. 16, 2016)). Ultimately, Judicial\nWatch refined its requests to five memoranda:\n\n A memorandum written by Pentagon General Counsel\n Jeh C. Johnson concerning any violation of Pakistani\n sovereignty in seeking, capturing, and/or killing Osama\n bin Laden in 2011.\n\n A memorandum written by CIA General Counsel\n Stephen W. Preston regarding when the administration\n must alert congressional leaders about the raid, capture,\n and/or killing of Osama bin Laden in 2011.\n\n A memorandum written by National Security Council\n Legal Adviser Mary B. DeRosa concerning a Navy\n SEAL team going into a raid with the intention of\n killing as a default option during the search, raid,\n capture and/or killing of Osama bin Laden in 2011.\n\n A memorandum written by National Security Council\n Legal Adviser Mary B. DeRosa regarding plans for\n detaining Osama bin Laden in the event of his capture.\n\n A memorandum written by Joint Chiefs of Staff Legal\n Adviser Rear Admiral James W. Crawford III regarding\n options and/or plans for Osama bin Laden’s burial.\n\f 5\n\n After Judicial Watch filed suit in February 2016, the\nagencies moved for summary judgment, arguing the five\nmemoranda were protected in full under the presidential\ncommunications privilege in Exemption 5 because they\ncontained confidential analyses and recommendations that\nwere solicited by, and communicated to, the President and his\nclosest national security advisers. Further, because the\nmemoranda related to certain courses of action being\ncontemplated by the President, they argued the memoranda\nwere also protected by the deliberative process and the\nattorney-client privileges in Exemption 5. And because the\nmemoranda contained classified information and information\nprotected by the National Security Act, the agencies argued that\ntheir disclosure could reasonably be expected to harm national\nsecurity and therefore were protected under Exemptions 1 and\n3. The agencies stated that a line-by-line review of the\nmemoranda indicated no reasonably segregable, non-exempt\nportions could be publicly released.\n\n Sworn declarations accompanying the summary judgment\nmotion explained that “[b]ecause the risks and the potential\nconsequences associated with conducting a raid . . . were\nsubstantial, the President and his national security team\nconsidered a number of variables and carefully weighed\ndifferent options for the operation.” Shiner Decl. ¶ 7. “Top\nnational security lawyers from the CIA, Department of\nDefense, and the National Security Council formed an integral\npart of that decision-making process.” Id. Their advice\n“served as one consideration, among others, weighed by the\nPresident and his national security advis[e]rs in advance of the\nPresident’s decision to authorize the raid on bin Laden’s\ncompound.” Id. ¶ 8. That advice was “memorialize[d]” in five\nwritten memoranda. Id. ¶ 7. Although certain details of the\nraid have been made public, the parties to this legal advice have\n\f 6\nmaintained the confidentiality of these communications. See\nid. ¶ 8; Decl. of Mark H. Herrington, Assoc. Dep. Gen.\nCounsel, Dep’t of Def. (“Herrington Decl.”) ¶ 8 (Aug. 17,\n2016).\n\n The district court granted the motion for summary\njudgment, ruling the five memoranda were protected from\ndisclosure under Exemptions 1, 3, and 5. Judicial Watch, Inc.\nv. Dep’t of Defense, 245 F. Supp. 3d 19 (D.D.C. 2017). It\ndenied Judicial Watch’s motion to alter or amend the judgment\nafter the government clarified that its declarations did not\naddress when the memoranda were prepared, ruling that the\npresidential communications privilege protected the\nmemoranda from disclosure regardless of whether the written\nmemoranda were created before or after briefing.\n\n Judicial Watch appeals. Our review of the grant of\nsummary judgment is de novo, see Morley v. CIA, 508 F.3d\n1108, 1114 (D.C. Cir. 2007), and our review of denial of the\nmotion to alter or amend judgment pursuant to Federal Rule of\nCivil Procedure 59(e) is for abuse of discretion, Ciralsky v.\nCIA, 355 F.3d 661, 671 (D.C. Cir. 2004).\n\n II.\n\n The Supreme Court has long recognized that “[a] President\nand those who assist him must be free to explore alternatives in\nthe process of shaping policies and making decisions and to do\nso in a way many would be unwilling to express except\nprivately.” United States v. Nixon, 418 U.S. 683, 708 (1974)\n(Nixon I). The Court has conceived of the presidential\ncommunications privilege as “fundamental to the operation of\nGovernment and inextricably rooted in the separation of\npowers under the Constitution” because it “relates to the\neffective discharge of a President’s powers[.]” Id. at 708, 711.\n\f 7\nThe privilege protects “the public interest in candid, objective,\nand even blunt or harsh opinions in Presidential\ndecisionmaking.” Id. at 708. The Court concluded these\nconsiderations “justify[] a presumptive privilege for\nPresidential communications.” Id. The scope of the\npresidential communications privilege is thus defined in terms\nof communications that involve the Office of the President, the\nexercise of the President’s responsibilities, and confidential\npresidential decisionmaking. Nixon v. Adm’r of Gen. Servs.,\n433 U.S. 425, 449 (1977) (Nixon II). The Supreme Court has\nreaffirmed that the President’s ability to obtain frank and\ninformed opinions from his senior advisers is vital to the\nPresident’s effective conduct of his duties. Id. at 448–49.\n\n Bridging the gap since the Nixon cases, this court\nexamined the history and scope of the privilege in In re Sealed\nCase, 121 F.3d 729, 744 (D.C. Cir. 1997). The court concluded\nthat the presidential communications privilege is properly\ninvoked with respect to “documents or other materials that\nreflect presidential decisionmaking and deliberations and that\nthe President believes should remain confidential.” Id.\nRegarding its breadth, the court observed that the privilege “is\nrooted in the need for confidentiality to ensure that presidential\ndecisionmaking is of the highest caliber,” id. at 750, and yet\nmust “be construed as narrowly as is consistent with ensuring\nthat the confidentiality of the President’s decisionmaking\nprocess is adequately protected,” id. at 752. To “best serve[]”\nthe public interest, the court held that the privilege covered\n“communications made by presidential advisers in the course\nof preparing advice for the President . . . even when these\ncommunications are not made directly to the President.” Id. at\n751–52. “Given the need to provide sufficient elbow room for\nadvisers to obtain information from all knowledgeable\nsources,” the privilege must extend beyond communications\nmade directly to the President to include communications\n\f 8\nsolicited and received by the President’s “immediate White\nHouse advisers” or even certain members of their staffs, but\n“should not extend to staff outside the White House in\nexecutive branch agencies.” Id. at 752. Once the privilege\napplies, the entirety of the document is protected. See id. at\n745.\n\n The court further elaborated on the scope of the privilege\nwhen Judicial Watch requested documents from the Office of\nthe Pardon Attorney and the Office of the Deputy Attorney\nGeneral relating to pardon grants and applications considered\nby the President. See Judicial Watch, Inc. v. Dep’t of Justice,\n365 F.3d 1108, 1110 & n.2 (D.C. Cir. 2004). Relying on Nixon\nI and II and the principles in In re Sealed Case, the court held\nthat the privilege protected from disclosure pardon documents\n“solicited and received” by the President or his immediate\nWhite House advisers but not “all agency documents prepared\nin the course of developing the Deputy Attorney General’s\npardon recommendations for the President.” Id. at 1114. In\ndeclining to extend the reach of the privilege, the court\nexplained that the same confidentiality and candor concerns\ncalling for application of the president communications\nprivilege “do not apply as forcefully,” id. at 1115, in view of\nthe stages of intermediate review of staff pardon\nrecommendations, some of which never reach the President.\n\n Here, the extraordinary decision confronting the President\nin considering whether to order a military strike on Osama bin\nLaden’s compound in Pakistan cries out for confidentiality, and\nthe district court’s application of the presidential\ncommunications privilege rested on consideration of the\nappropriate factors, see Judicial Watch, 245 F. Supp. 3d at 28–\n30. The decision required the exercise of an informed\njudgment by the President as Commander in Chief, U.S.\nCONST. art. 2, § 2, on a highly sensitive subject with serious\n\f 9\ndirect and collateral consequences for foreign relations that\nrequired a high degree of protection for “the President’s\nconfidentiality and the candor of his immediate White House\nadvisers,” Judicial Watch, 365 F.3d at 1123. Declarations filed\nwith the motion for summary judgment explained that the\nPresident and his immediate advisers solicited and received the\nadvice of the top national security lawyers from the\nDepartment of Defense, CIA, and National Security Council\nrelating to a potential military counterterrorism operation. See,\ne.g., Shiner Decl. ¶¶ 7–8. The legal advice memorialized in\neach memorandum concerned that covert military operation\nand was shared only with the President and his closest advisers.\nId. The non-disclosure of that advice thereby protects “the\nPresident’s ability to obtain frank and informed opinions from\nhis senior advis[e]rs,” an “acute [concern] in the national\nsecurity context, particularly in situations . . . where the\nPresident is formulating a decision on a sensitive operation\nwith substantial foreign policy impacts.” Id. ¶ 9; see\nHerrington Decl. ¶ 7. Although the presidential\ncommunications privilege is a qualified privilege, subject to an\nadequate showing of need, FOIA requests cannot overcome the\nprivilege because “the particular purpose for which a FOIA\nplaintiff seeks information is not relevant in determining\nwhether FOIA requires disclosure,” Loving, 550 F.3d at 40\n(quoting In re Sealed Case, 121 F.3d at 737 n.5).\n\n Judicial Watch does not contest the government’s\nstatement that “the memoranda memorialize legal advice that\nwas briefed to the President and his closest advis[e]rs.” Shiner\nDecl. ¶ 8. Neither does it suggest the presidential\ncommunications privilege is inapplicable where there is a\n“need to protect military, diplomatic, or sensitive national\nsecurity secrets,” Nixon II, 433 U.S. at 447 (internal quotation\nmarks and citation omitted). Instead Judicial Watch points out\nthat it neither asked the government to disclose whether the\n\f 10\nmemoranda or their contents were communicated to the\nPresident or his senior advisers, nor for any presidential\ndeliberations or deliberative materials, and “asked only that the\nmemoranda be produced.” Appellant’s Br. 8. Further, Judicial\nWatch observes, the government makes no claim that the\nauthors of the memoranda briefed the President or his senior\nadvisers directly, or even that they were the intended recipients\nof the memoranda or reviewed the memoranda. Judicial Watch\nunderstands the government only to claim that the memoranda\n“memorialize” the analysis and advice briefed, thereby\nimplying they were prepared after the briefing. This is\nsignificant, Judicial Watch maintains, because of lingering\n“unanswered questions,” Appellant’s Br. 10. The district\ncourt’s response to the government’s notice of clarification left\nunknown when the briefing took place in relation to\npreparation of the memoranda, who gave the briefing, and how\nthe briefers obtained the analysis and the advice they conveyed\nto the President and his senior advisers. As a result, Judicial\nWatch concludes, the district court failed to construe the\npresidential privilege narrowly. “[A]llow[ing] the President\nand Executive Branch to justify its actions without public\noversight . . . would allow [them] to engage in governance by\n‘secret law.’” Id. (citation omitted).\n\n Judicial Watch makes no effort to reconcile its position\nthat the timing of the preparation of the memoranda defeats\napplication of the presidential communications privilege with\nthis court’s precedent. In In re Sealed Case, 121 F.3d at 758,\nthe court held that notes taken to memorialize meetings and\ntelephone calls involving top White House advisers about the\ninvestigation of the former Secretary of Agriculture were\nprotected from disclosure by the presidential communications\nprivilege because the notes reflected those advisers’\ncommunications. In Loving, the court held that the privilege\napplies to “documents reflecting presidential decisionmaking\n\f 11\nand deliberations, regardless of whether the documents are\npredecisional or not.” 550 F.3d at 37 (internal quotation marks\nand citation omitted).\n\n That Judicial Watch claims only to seek the memoranda\nand not presidential deliberations or deliberative materials\nsimilarly ignores precedent. The district court properly relied\non the government’s declarations, see Larkin v. Dep’t of State,\n565 F.3d 857, 862 (D.C. Cir. 2009), that the requested records\nreflected the President’s decisionmaking with regard to the\nmilitary strike. Judicial Watch, 245 F. Supp. 3d at 28–29; see\nShiner Decl. ¶¶ 9–10; Herrington Decl. ¶¶ 6–8. The\nmemoranda Judicial Watch seeks are “documents . . . that\nreflect presidential . . . deliberations and that the President\nbelieves should remain confidential.” Judicial Watch, 365\nF.3d at 1113 (quoting In re Sealed Case, 121 F.3d at 744).\nDisclosure of the memoranda would reveal the President’s\ndeliberations. See In re Sealed Case, 121 F.3d at 744.\n\n Judicial Watch’s suggestion that “unanswered questions,”\nAppellant’s Br. 10, preclude application of the presidential\ncommunications privilege fails for similar reasons. There is no\nbasis on this record to conclude that application of the privilege\nis contrary to the limitations identified in our precedent. See\nJudicial Watch, 365 F.3d at 1115; In re Sealed Case, 121 F.3d\nat 752. In In re Sealed Case, the court held that notes of\nmeetings among White House advisers and drafts of press\nbriefings were protected from disclosure by the privilege, even\nthough it was undisputed that the President never saw these\ndocuments, id. at 746–47. Nothing in the court’s analysis\nimplied that additional information would be required about\nwho took the notes or how the discussions at the meetings were\nultimately communicated to the President. Similarly, here, to\ndetermine the applicability of the presidential communications\nprivilege, the government’s declarations did not need to be\n\f 12\nmore specific about who gave the briefings or how those\nconducting the briefings obtained the analysis and advice they\nconveyed, or the relationship of the briefer to the authors, the\nPresident, and the President’s senior advisers, or whether and\nhow the results of the briefings were later conveyed to the\nauthors of the memoranda. Even assuming such information\nwould not be privileged, Judicial Watch fails to show why it\nwould be needed to determine the applicability of the\npresidential communications privilege. It sufficed that the\nPresident and his top national security advisers “solicited and\nreceived,” Judicial Watch, 365 F.3d at 1114, the legal advice\nmemorialized in the five memoranda sought by Judicial Watch.\n\n Finally, Judicial Watch contends that application of the\npresidential communications privilege “would allow the\nPresident and Executive Branch to engage in governance by\n‘secret law.’” Appellant’s Br. 10 (citation omitted). The\n“secret law” doctrine is typically applicable to “opinions and\ninterpretations which embody the agency’s effective law and\npolicy,” Sears, Roebuck & Co., 421 U.S. at 153 (internal\nquotation marks and citation omitted); see Afshar v. Dep’t of\nState, 702 F.2d 1125, 1139–41 (D.C. Cir. 1983). The materials\nJudicial Watch seeks do not constitute or establish “law” in the\nsense of setting forth a decision that binds subordinates or a\nregulated party. Rather, the materials document advice given\nup the chain to someone (the President) who then made a\ndecision. The government’s declaration explains that the\nadvice contained in the memoranda was not an “authorization\nto conduct a given activity, but, rather, one step in the\nExecutive branch deliberations.” Shiner Decl. ¶ 9. Although\nthere may be some overlap between the presidential\ncommunications and deliberative process privileges under\nExemption 5, see Judicial Watch, 365 F.3d at 1114–15, to the\nextent this “secret law” argument echoes Judicial Watch’s\n\f 13\narguments against applying the deliberative process privilege,\nsee Appellant’s Br. 17–19, the court has no need to address it.\n\n Accordingly, because the presidential communications\nprivilege applies to the totality of the five memoranda that\nJudicial Watch requests, and the question of segregability of\nnon-exempt material is therefore not presented, we affirm the\ngrant of summary judgment and the denial of the motion to\nalter or amend the judgment.\n[END_CASE]",
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4,584,767 | HOOPA VALLEY TRIBE, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent American Rivers, Et Al., Intervenors | Hoopa Valley Tribe v. Fed. Energy Regulatory Comm'n | 2019-01-25 | 14-1271 | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Griffith, Pillard, Sentelle", "parties": "", "opinions": [{"author": "Opinion for the Court filed by Senior Circuit Judge SENTELLE.", "type": "010combined", "text": "United States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n\nArgued October 1, 2018 Decided January 25, 2019\n\n No. 14-1271\n\n HOOPA VALLEY TRIBE,\n PETITIONER\n\n v.\n\n FEDERAL ENERGY REGULATORY COMMISSION,\n RESPONDENT\n\n AMERICAN RIVERS, ET AL.,\n INTERVENORS\n\n\n\n On Petition for Review of Orders of the\n Federal Energy Regulatory Commission\n\n\n\n Thane D. Somerville argued the cause for petitioner. With\nhim on the briefs was Thomas P. Schlosser.\n\n Carol J. Banta, Attorney, Federal Energy Regulatory\nCommission, argued the cause for respondent. On the brief\nwere James P. Danly, General Counsel, Robert H. Solomon,\nSolicitor, Robert M. Kennedy, Senior Attorney, and Ross R.\nFulton, Attorney.\n\f 2\n Richard Roos-Collins, Julie Gantenbein, Stuart Somach,\nMichael A. Swiger, and Sharon L. White were on the briefs for\nintervenors American Rivers, et al. in support of respondent.\n\n Michael A. Swiger and Sharon L. White were on the brief\nfor intervenor Pacificorp in support of respondent. Charles R.\nSensiba entered an appearance.\n\n George J. Mannina Jr. was on the brief for intervenor-\nrespondent Siskiyou County, California. Ashley Remillard and\nPaul S. Weiland entered appearances.\n\n Robert W. Ferguson, Attorney General, Sonia A. Wolfman,\nAssistant Attorney General, Office of the Attorney General for\nthe State of Washington, Lawrence G. Wasden, Attorney\nGeneral, Office of the Attorney General for the State of Idaho,\nJoseph A. Foster, Attorney General, Office of the Attorney\nGeneral for the State of New Hampshire, Douglas S. Chin,\nAttorney General, Office of the Attorney General for the State\nof Hawaii, Janet T. Mills, Attorney General, Office of the\nAttorney General for the State of Maine, Peter K. Michael,\nAttorney General, Office of the Attorney General for the State\nof Wyoming, Eric T. Schneiderman, Attorney General at the\ntime the brief was filed, Office of the Attorney General for the\nState of New York, and Sean D. Reyes, Attorney General,\nOffice of the Attorney General for the State of Utah, were on\nthe brief for amici curiae States of Washington, et al. in support\nof intervenors-respondents American Rivers, et al.\n\n Kamala D. Harris, Attorney General at the time the brief\nwas filed, Office of the Attorney General for the State of\nCalifornia, Robert W. Byrne, Senior Assistant Attorney\nGeneral, Eric M. Katz, Supervising Deputy Attorney General,\nand Ross H. Hirsch and Adam L. Levitan, Deputy Attorneys\n\f 3\nGeneral, were on the brief for amicus curiae California State\nWater Resources Control Board in support of respondent.\n\n Ellen F. Rosenblum, Attorney General, and Paul\nGarrahan, Attorney-In-Charge, Office of the Attorney General\nfor the State of Oregon, were on the brief for amicus curiae The\nState of Oregon in support of respondent.\n\n Before: GRIFFITH and PILLARD, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Senior Circuit Judge\nSENTELLE.\n\n SENTELLE, Senior Circuit Judge: Hoopa Valley Tribe\n(“Hoopa”) petitions for review of Federal Energy Regulatory\nCommission (“FERC”) orders, which found (1) that California\nand Oregon had not waived their water quality certification\nauthority under Section 401 of the Clean Water Act (“CWA”)\nand (2) that PacifiCorp had diligently prosecuted its relicensing\napplication for the Klamath Hydroelectric Project (“Project”).\nWhereas statutory waiver is mandated after a request has been\npending for more than one year, the issue in this case is whether\nstates waive Section 401 authority by deferring review and\nagreeing with a licensee to treat repeatedly withdrawn and\nresubmitted water quality certification requests as new\nrequests. We conclude that the withdrawal-and-resubmission\nof water quality certification requests does not trigger new\nstatutory periods of review. Therefore, we grant the petition\nand vacate the orders under review.\n\f 4\n I. BACKGROUND\n\n A. Statutory Background\n\n Under Subchapter I of the Federal Power Act (“FPA”), 16\nU.S.C. §§ 791a–823g, Congress granted FERC authority to\nregulate the licensing, conditioning, and development of\nhydropower projects on navigable waters. Under Section 401\nof the CWA, any applicant seeking a federal license for an\nactivity that “may result in any discharge into the navigable\nwaters” must first seek water quality certifications from the\ncontrolling states. See 33 U.S.C. § 1341(a)(1). Thus, a state’s\nwater quality review serves as a precondition to any federal\nhydropower license issued by FERC. The statute further\nprovides that state certification requirements “shall be waived\nwith respect to such Federal application” if the state “fails or\nrefuses to act on a request for certification, within a reasonable\nperiod of time (which shall not exceed one year) after receipt\nof such request.” See id. “[T]he purpose of the waiver\nprovision is to prevent a State from indefinitely delaying a\nfederal licensing proceeding by failing to issue a timely water\nquality certification under Section 401.” Alcoa Power\nGenerating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011).\n\n B. History of the Klamath Hydroelectric Project\n\n In this case, the hydropower project in question consists of\na series of dams along the Klamath River in California and\nOregon, which were originally licensed to a predecessor of\nPacifiCorp in 1954. Since the original license expired in 2006,\nPacifiCorp has continued to operate the Project on annual\ninterim licenses pending the broader licensing process. Due to\nthe age of the Project, the dams are not in compliance with\nmodern environmental standards. Since modernizing the dams\nwas presumably not cost-effective, PacifiCorp sought to\n\f 5\ndecommission the lower dams. In 2004, PacifiCorp filed for\nrelicensing with FERC, with a proposal to relicense the upper\ndams and decommission the remainder. All milestones for\nrelicensing have been met except for the states’ water quality\ncertifications under Section 401.\n\n In 2008, a consortium of parties—California, Oregon,\nNative American tribes, farmers, ranchers, conservation\ngroups, fishermen, and PacifiCorp—began settlement\nnegotiations to resolve the procedures and the risks associated\nwith the dams’ decommissioning. These negotiations\nculminated in a formal agreement in 2010, the Klamath\nHydroelectric Settlement Agreement (“KHSA” or the\n“Agreement”), imposing on PacifiCorp a series of interim\nenvironmental measures and funding obligations, while\ntargeting a 2020 decommission date. Under the KHSA, the\nstates and PacifiCorp agreed to defer the one-year statutory\nlimit for Section 401 approval by annually withdrawing-and-\nresubmitting the water quality certification requests that serve\nas a pre-requisite to FERC’s overarching review. The\nAgreement explicitly required abeyance of all state permitting\nreviews:\n\n Within 30 days of the Effective Date, the Parties,\n except ODEQ [Oregon Department of\n Environmental Quality], will request to the\n California State Water Resources Control Board\n and the Oregon Department of Environmental\n Quality that permitting and environmental\n review for PacifiCorp’s FERC Project No. 2082\n [Klamath Hydroelectric Project] licensing\n activities, including but not limited to water\n quality certifications under Section 401 of the\n CWA and review under CEQA [California\n Environmental Quality Act], will be held in\n\f 6\n abeyance during the Interim Period under this\n Settlement. PacifiCorp shall withdraw and re-\n file its applications for Section 401 certifications\n as necessary to avoid the certifications being\n deemed waived under the CWA during the\n Interim Period.\n\nSee KHSA at 42.\n\n The parties to the KHSA agreed to a number of\npreconditions for decommissioning, the most relevant of which\nwas the securing of federal funds, which never occurred.\nConsequently, on April 6, 2016, a subset of parties from the\noriginal KHSA agreed to an “Amended KHSA,” which created\nan alternative plan for decommissioning that contemplated the\ntransfer of licensing to a company, Klamath River Renewal\nCorporation (“KRRC”), formed by the signatories of the\nAmended KHSA in order to limit potential liability that\nexisting parties anticipated from decommissioning the dams.\nOf relevance, Hoopa—whose reservation is downstream of the\nProject—was not a party to either the KHSA or the Amended\nKHSA.\n\n On September 23, 2016, PacifiCorp filed for an amended\nlicense to enable transfer of the dams to KRRC. Having never\npreviously considered the transfer of a license for the sole\npurpose of decommissioning, and based on legal, technical,\nand financial concerns, FERC chose to separately review the\napplications for (1) amendment and (2) transfer. On March 15,\n2018, FERC approved splitting the lower dams to a separate\nlicense, but has yet to approve transfer of that license.\nPacifiCorp remains the licensee for both of these newly split\nlicenses.\n\f 7\n C. Procedural History\n\n On May 25, 2012, Hoopa petitioned FERC for a\ndeclaratory order that California and Oregon had waived their\nSection 401 authority and that PacifiCorp had correspondingly\nfailed to diligently prosecute its licensing application for the\nProject. On June 19, 2014, FERC denied that petition. On\nJuly 18, 2014, Hoopa requested rehearing on its original\npetition, and FERC denied that request on October 16, 2014.\nSubsequently, on December 9, 2014, Hoopa petitioned this\nCourt to review FERC’s orders. This Court initially held the\ncase in abeyance once the Amended KHSA was in place. But\nthe decommissioning the agreement contemplated has yet to\noccur, and in light of Hoopa’s pending petition, we removed\nthe case from abeyance on May 9, 2018.\n\n II. DISCUSSION\n\n We review FERC orders under the Administrative\nProcedure Act (“APA”), which empowers the Court “to reverse\nany agency action that is ‘arbitrary, capricious, an abuse of\ndiscretion, or otherwise not in accordance with law.’” See, e.g.,\nWisconsin Valley Improvement v. FERC, 236 F.3d 738, 742\n(D.C. Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). In\nconducting the review in this case, because FERC is not the\nagency charged with administering the CWA, the Court owes\nno deference to its interpretation of Section 401 or its\nconclusion regarding the states’ waiver. See Alcoa Power, 643\nF.3d at 972.\n\n A. Sovereign Immunity\n\n The state of Oregon, an amicus curiae, has challenged this\nCourt’s jurisdiction over the instant matter. Specifically,\nCalifornia and Oregon have exercised their sovereign\n\f 8\nimmunity under the Eleventh Amendment by refusing to\nintervene in this review. Oregon avers a status as an\nindispensable party because this review entails a potential\nfinding of the states’ waiver of their Section 401 authority.\nThus, Oregon asserts that this case must be dismissed, relying\non Fed. R. Civ. P. 19.\n\n However, California and Oregon are not indispensable\nparties to the instant case. Contrary to Oregon’s argument,\nFed. R. Civ. P. 19 does not govern this joinder issue. See Int’l\nUnion, United Auto. v. Scofield, 382 U.S. 205, 217 n.10 (1965).\nRather, as an appellate court reviewing an agency action, we\nlook to Fed. R. App. P. 15. Rule 15 only requires the\nrespondent federal agency as a necessary party to a petition for\nreview—joinder of no other party is required. See Fed. R. App.\nP. 15. With regard to sovereign immunity generally, Oregon’s\nposition is incompatible with the precepts of federalism and\nthis Court’s prior precedent. Hoopa’s petition does not involve\na state’s certification decision or a state’s application of state\nlaw, but rather a federal agency’s order, a matter explicitly\nwithin the purview of this Court when petitioned by an\naggrieved party. See 16 U.S.C. § 825l(b). Indeed, FERC\norders regarding a state’s compliance are properly reviewed by\nfederal appeals courts whether or not the state is a party to the\nreview. See, e.g., City of Tacoma v. FERC, 460 F.3d 53 (D.C.\nCir. 2006). This is especially true, in cases such as this, when\nthe dispositive issue on review is the interpretation of federal\nlaw. See U.S. Const. art. III, § 2, cl. 1 (“The judicial Power\nshall extend to all Cases, in Law and Equity, arising under this\nConstitution, the Laws of the United States, and Treaties made,\nor which shall be made, under their Authority. . . .”).\nAccordingly, this Court has jurisdiction over the instant matter,\nand we shall proceed to the merits of Hoopa’s claims.\n\f 9\n B. Waiver under Section 401\n\n Hoopa’s petition presents three theories as bases for relief:\nthe states’ waiver of their Section 401 authority, PacifiCorp’s\nfailure to diligently prosecute its licensing application, and\nFERC’s abdication of its regulatory duty. However, all of\nHoopa’s theories are connected.\n\n Resolution of this case requires us to answer a single issue:\nwhether a state waives its Section 401 authority when, pursuant\nto an agreement between the state and applicant, an applicant\nrepeatedly withdraws-and-resubmits its request for water\nquality certification over a period of time greater than one year.\nIf this type of coordinated withdrawal-and-resubmission\nscheme is a permissible manner for tolling a state’s one-year\nwaiver period, then (1) California and Oregon did not waive\ntheir Section 401 authority; (2) PacifiCorp did not fail to\ndiligently prosecute its application; and (3) FERC did not\nabdicate its duty. However, if such a scheme is ineffective,\nthen the states’ and licensee’s actions were an unsuccessful\nattempt to circumvent FERC’s regulatory authority of whether\nand when to issue a federal license.\n\n Determining the effectiveness of such a withdrawal-and-\nresubmission scheme is an undemanding inquiry because\nSection 401’s text is clear.\n\n If the State, interstate agency, or Administrator,\n as the case may be, fails or refuses to act on a\n request for certification, within a reasonable\n period of time (which shall not exceed one year)\n after receipt of such request, the certification\n requirements of this subsection shall be waived\n with respect to such Federal application. No\n license or permit shall be granted until the\n\f 10\n certification required by this section has been\n obtained or has been waived as provided in the\n preceding sentence.\n\nSee 33 U.S.C. § 1341(a)(1). The temporal element imposed by\nthe statute is “within a reasonable period of time,” followed by\nthe conditional parenthetical, “(which shall not exceed one\nyear).” See id. Thus, while a full year is the absolute\nmaximum, it does not preclude a finding of waiver prior to the\npassage of a full year. Indeed, the Environmental Protection\nAgency (“EPA”)—the agency charged with administering the\nCWA—generally finds a state’s waiver after only six months.\nSee 40 C.F.R. § 121.16.\n\n The pendency of the requests for state certification in this\ncase has far exceeded the one-year maximum. PacifiCorp first\nfiled its requests with the California Water Resources Control\nBoard and the Oregon Department of Environmental Quality\nin 2006. Now, more than a decade later, the states still have\nnot rendered certification decisions. FERC “sympathizes” with\nHoopa, noting that the lengthy delay is “regrettable.”\nAccording to FERC, it is now commonplace for states to use\nSection 401 to hold federal licensing hostage. At the time of\nbriefing, twenty-seven of the forty-three licensing applications\nbefore FERC were awaiting a state’s water quality\ncertification, and four of those had been pending for more than\na decade.\n\n Implicit in the statute’s reference “to act on a request for\ncertification,” the provision applies to a specific request. See\n33 U.S.C. § 1341(a)(1) (emphasis added). This text cannot be\nreasonably interpreted to mean that the period of review for one\nrequest affects that of any other request. In its decision, FERC\nused this text to rescue the states from waiver. FERC found\nthat while PacifiCorp’s various resubmissions involved the\n\f 11\nsame Project, each resubmission was an independent request,\nsubject to a new period of review. Thus, FERC averred that\nthe states had not failed to act. In doing so, FERC acted\narbitrarily and capriciously.\n\n The record does not indicate that PacifiCorp withdrew its\nrequest and submitted a wholly new one in its place, and\ntherefore, we decline to resolve the legitimacy of such an\narrangement. We likewise need not determine how different a\nrequest must be to constitute a “new request” such that it\nrestarts the one-year clock. This case presents the set of facts\nin which a licensee entered a written agreement with the\nreviewing states to delay water quality certification.\nPacifiCorp’s withdrawals-and-resubmissions were not just\nsimilar requests, they were not new requests at all. The KHSA\nmakes clear that PacifiCorp never intended to submit a “new\nrequest.” Indeed, as agreed, before each calendar year had\npassed, PacifiCorp sent a letter indicating withdrawal of its\nwater quality certification request and resubmission of the very\nsame . . . in the same one-page letter . . . for more than a\ndecade. Such an arrangement does not exploit a statutory\nloophole; it serves to circumvent a congressionally granted\nauthority over the licensing, conditioning, and developing of a\nhydropower project.\n\n While the statute does not define “failure to act” or “refusal\nto act,” the states’ efforts, as dictated by the KHSA, constitute\nsuch failure and refusal within the plain meaning of these\nphrases. Section 401 requires state action within a reasonable\nperiod of time, not to exceed one year. California and Oregon’s\ndeliberate and contractual idleness defies this requirement. By\nshelving water quality certifications, the states usurp FERC’s\ncontrol over whether and when a federal license will issue.\nThus, if allowed, the withdrawal-and-resubmission scheme\ncould be used to indefinitely delay federal licensing\n\f 12\nproceedings and undermine FERC’s jurisdiction to regulate\nsuch matters.\n\n Congress intended Section 401 to curb a state’s “dalliance\nor unreasonable delay.” See, e.g., 115 Cong. Rec. 9264 (1969).\nThis Court has repeatedly recognized that the waiver provision\nwas created “to prevent a State from indefinitely delaying a\nfederal licensing proceeding.” See Alcoa Power, 643 F.3d at\n972–73; Millennium Pipeline Co. v. Seggos, 860 F.3d 696,\n701–02 (D.C. Cir. 2017).\n\n While caselaw offers some guidance regarding a state’s\nwaiver, e.g., North Carolina v. FERC, 112 F.3d 1175, 1183–\n85 (D.C. Cir. 1997), this Court has never addressed the specific\nfactual scenario presented in this case, i.e., an applicant\nagreeing with the reviewing states to exploit the withdrawal-\nand-resubmission of water quality certification requests over a\nlengthy period of time. In its supplemental brief, FERC directs\nthe Court’s attention to a Second Circuit opinion which\nsuggested, in light of various practical difficulties, that a state\ncould “request that the applicant withdraw and resubmit the\napplication.” See New York State Dep’t of Envtl. Conservation\nv. FERC, 884 F.3d 450, 455–56 (2d Cir. 2018) (citing\nConstitution Pipeline Co., LLC v. New York State Dep’t of\nEnvtl. Conservation, 868 F.3d 87, 94 (2d Cir. 2017)). That\nsuggestion was not central to the court’s holding. The dicta\nwas offered to rebut the state agency’s fears that a one-year\nreview period could result in incomplete applications and\npremature decisions. See id. (identifying denial without\nprejudice as another alternative).\n\n While it is the role of the legislature, not the judiciary, to\nresolve such fears, those trepidations are inapplicable to the\ninstant case. The record indicates that PacifiCorp’s water\nquality certification request has been complete and ready for\n\f 13\nreview for more than a decade. There is no legal basis for\nrecognition of an exception for an individual request made\npursuant to a coordinated withdrawal-and-resubmission\nscheme, and we decline to recognize one that would so readily\nconsume Congress’s generally applicable statutory limit.\nAccordingly, we conclude that California and Oregon have\nwaived their Section 401 authority with regard to the Project.\n\n C. Futility\n\n FERC postulated that a finding of waiver would require\nthe agency to deny PacifiCorp’s license. As a result,\nPacifiCorp would have to file a decommissioning plan for the\nKlamath dams, and since decommissioning of the Project is an\nactivity that itself would result in a “discharge into the\nnavigable waters,” that plan would be subject to its own set of\nthe oft-delayed state water quality certifications. Thus, in a\nfutile sequence of events, the Project would revert back to its\npresent state, only burdened with additional delays.\n\n FERC may be correct that “[i]ndefinite delays in\nprocessing [licensing] applications are . . . not in the public\ninterest.” See Georgia-Pacific Corp., 35 FERC ¶ 61120, 61248\nn.8 (Apr. 25, 1986). However, such practical concerns do not\ntrump express statutory directives. See supra Section II.B.\nRegardless, had FERC properly interpreted Section 401 and\nfound waiver when it first manifested more than a decade ago,\ndecommissioning of the Project might very well be underway.\n\n Further, FERC possesses a critical role in protecting the\npublic interest in hydropower projects. See 16 U.S.C.\n§§ 797(e), 803(a), 808(a). FERC solicits comments from\ninterested parties and holds public meetings. See, e.g., U.S.\nDep’t of Interior v. FERC, 952 F.2d 538, 540 (D.C. Cir. 1992).\nFERC may also “participate in an advisory role in settlement\n\f 14\ndiscussions or review proposed settlements” for the\ndevelopment or decommissioning of such projects. See\nSettlements in Hydropower Licensing Proceedings under Part I\nof the Federal Power Act, 116 FERC ¶ 61270, 62086 (Sept. 1,\n2006). Here, it did neither. Hoopa’s interests are not protected\ndirectly as it is not a party to the KHSA or Amended KHSA,\nnor are its interests protected indirectly through any\nparticipation by FERC in those same settlement agreements.\nTherefore, we disagree that a finding of waiver is futile\nbecause, at a minimum, it provides Hoopa and FERC an\nopportunity to rejoin the bargaining table.\n\n III. CONCLUSION\n\n For the reasons set forth above, we vacate and remand the\nrulings under review. FERC shall proceed with its review of,\nand licensing determination for, the Klamath Hydroelectric\nProject.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362020/", "author_raw": "Opinion for the Court filed by Senior Circuit Judge SENTELLE."}]} | GRIFFITH | PILLARD | SENTELLE | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584767/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: HOOPA VALLEY TRIBE, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent American Rivers, Et Al., Intervenors\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n FOR THE DISTRICT OF COLUMBIA CIRCUIT\n\n\n\n\nArgued October 1, 2018 Decided January 25, 2019\n\n No. 14-1271\n\n HOOPA VALLEY TRIBE,\n PETITIONER\n\n v.\n\n FEDERAL ENERGY REGULATORY COMMISSION,\n RESPONDENT\n\n AMERICAN RIVERS, ET AL.,\n INTERVENORS\n\n\n\n On Petition for Review of Orders of the\n Federal Energy Regulatory Commission\n\n\n\n Thane D. Somerville argued the cause for petitioner. With\nhim on the briefs was Thomas P. Schlosser.\n\n Carol J. Banta, Attorney, Federal Energy Regulatory\nCommission, argued the cause for respondent. On the brief\nwere James P. Danly, General Counsel, Robert H. Solomon,\nSolicitor, Robert M. Kennedy, Senior Attorney, and Ross R.\nFulton, Attorney.\n\f 2\n Richard Roos-Collins, Julie Gantenbein, Stuart Somach,\nMichael A. Swiger, and Sharon L. White were on the briefs for\nintervenors American Rivers, et al. in support of respondent.\n\n Michael A. Swiger and Sharon L. White were on the brief\nfor intervenor Pacificorp in support of respondent. Charles R.\nSensiba entered an appearance.\n\n George J. Mannina Jr. was on the brief for intervenor-\nrespondent Siskiyou County, California. Ashley Remillard and\nPaul S. Weiland entered appearances.\n\n Robert W. Ferguson, Attorney General, Sonia A. Wolfman,\nAssistant Attorney General, Office of the Attorney General for\nthe State of Washington, Lawrence G. Wasden, Attorney\nGeneral, Office of the Attorney General for the State of Idaho,\nJoseph A. Foster, Attorney General, Office of the Attorney\nGeneral for the State of New Hampshire, Douglas S. Chin,\nAttorney General, Office of the Attorney General for the State\nof Hawaii, Janet T. Mills, Attorney General, Office of the\nAttorney General for the State of Maine, Peter K. Michael,\nAttorney General, Office of the Attorney General for the State\nof Wyoming, Eric T. Schneiderman, Attorney General at the\ntime the brief was filed, Office of the Attorney General for the\nState of New York, and Sean D. Reyes, Attorney General,\nOffice of the Attorney General for the State of Utah, were on\nthe brief for amici curiae States of Washington, et al. in support\nof intervenors-respondents American Rivers, et al.\n\n Kamala D. Harris, Attorney General at the time the brief\nwas filed, Office of the Attorney General for the State of\nCalifornia, Robert W. Byrne, Senior Assistant Attorney\nGeneral, Eric M. Katz, Supervising Deputy Attorney General,\nand Ross H. Hirsch and Adam L. Levitan, Deputy Attorneys\n\f 3\nGeneral, were on the brief for amicus curiae California State\nWater Resources Control Board in support of respondent.\n\n Ellen F. Rosenblum, Attorney General, and Paul\nGarrahan, Attorney-In-Charge, Office of the Attorney General\nfor the State of Oregon, were on the brief for amicus curiae The\nState of Oregon in support of respondent.\n\n Before: GRIFFITH and PILLARD, Circuit Judges, and\nSENTELLE, Senior Circuit Judge.\n\n Opinion for the Court filed by Senior Circuit Judge\nSENTELLE.\n\n SENTELLE, Senior Circuit Judge: Hoopa Valley Tribe\n(“Hoopa”) petitions for review of Federal Energy Regulatory\nCommission (“FERC”) orders, which found (1) that California\nand Oregon had not waived their water quality certification\nauthority under Section 401 of the Clean Water Act (“CWA”)\nand (2) that PacifiCorp had diligently prosecuted its relicensing\napplication for the Klamath Hydroelectric Project (“Project”).\nWhereas statutory waiver is mandated after a request has been\npending for more than one year, the issue in this case is whether\nstates waive Section 401 authority by deferring review and\nagreeing with a licensee to treat repeatedly withdrawn and\nresubmitted water quality certification requests as new\nrequests. We conclude that the withdrawal-and-resubmission\nof water quality certification requests does not trigger new\nstatutory periods of review. Therefore, we grant the petition\nand vacate the orders under review.\n\f 4\n I. BACKGROUND\n\n A. Statutory Background\n\n Under Subchapter I of the Federal Power Act (“FPA”), 16\nU.S.C. §§ 791a–823g, Congress granted FERC authority to\nregulate the licensing, conditioning, and development of\nhydropower projects on navigable waters. Under Section 401\nof the CWA, any applicant seeking a federal license for an\nactivity that “may result in any discharge into the navigable\nwaters” must first seek water quality certifications from the\ncontrolling states. See 33 U.S.C. § 1341(a)(1). Thus, a state’s\nwater quality review serves as a precondition to any federal\nhydropower license issued by FERC. The statute further\nprovides that state certification requirements “shall be waived\nwith respect to such Federal application” if the state “fails or\nrefuses to act on a request for certification, within a reasonable\nperiod of time (which shall not exceed one year) after receipt\nof such request.” See id. “[T]he purpose of the waiver\nprovision is to prevent a State from indefinitely delaying a\nfederal licensing proceeding by failing to issue a timely water\nquality certification under Section 401.” Alcoa Power\nGenerating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011).\n\n B. History of the Klamath Hydroelectric Project\n\n In this case, the hydropower project in question consists of\na series of dams along the Klamath River in California and\nOregon, which were originally licensed to a predecessor of\nPacifiCorp in 1954. Since the original license expired in 2006,\nPacifiCorp has continued to operate the Project on annual\ninterim licenses pending the broader licensing process. Due to\nthe age of the Project, the dams are not in compliance with\nmodern environmental standards. Since modernizing the dams\nwas presumably not cost-effective, PacifiCorp sought to\n\f 5\ndecommission the lower dams. In 2004, PacifiCorp filed for\nrelicensing with FERC, with a proposal to relicense the upper\ndams and decommission the remainder. All milestones for\nrelicensing have been met except for the states’ water quality\ncertifications under Section 401.\n\n In 2008, a consortium of parties—California, Oregon,\nNative American tribes, farmers, ranchers, conservation\ngroups, fishermen, and PacifiCorp—began settlement\nnegotiations to resolve the procedures and the risks associated\nwith the dams’ decommissioning. These negotiations\nculminated in a formal agreement in 2010, the Klamath\nHydroelectric Settlement Agreement (“KHSA” or the\n“Agreement”), imposing on PacifiCorp a series of interim\nenvironmental measures and funding obligations, while\ntargeting a 2020 decommission date. Under the KHSA, the\nstates and PacifiCorp agreed to defer the one-year statutory\nlimit for Section 401 approval by annually withdrawing-and-\nresubmitting the water quality certification requests that serve\nas a pre-requisite to FERC’s overarching review. The\nAgreement explicitly required abeyance of all state permitting\nreviews:\n\n Within 30 days of the Effective Date, the Parties,\n except ODEQ [Oregon Department of\n Environmental Quality], will request to the\n California State Water Resources Control Board\n and the Oregon Department of Environmental\n Quality that permitting and environmental\n review for PacifiCorp’s FERC Project No. 2082\n [Klamath Hydroelectric Project] licensing\n activities, including but not limited to water\n quality certifications under Section 401 of the\n CWA and review under CEQA [California\n Environmental Quality Act], will be held in\n\f 6\n abeyance during the Interim Period under this\n Settlement. PacifiCorp shall withdraw and re-\n file its applications for Section 401 certifications\n as necessary to avoid the certifications being\n deemed waived under the CWA during the\n Interim Period.\n\nSee KHSA at 42.\n\n The parties to the KHSA agreed to a number of\npreconditions for decommissioning, the most relevant of which\nwas the securing of federal funds, which never occurred.\nConsequently, on April 6, 2016, a subset of parties from the\noriginal KHSA agreed to an “Amended KHSA,” which created\nan alternative plan for decommissioning that contemplated the\ntransfer of licensing to a company, Klamath River Renewal\nCorporation (“KRRC”), formed by the signatories of the\nAmended KHSA in order to limit potential liability that\nexisting parties anticipated from decommissioning the dams.\nOf relevance, Hoopa—whose reservation is downstream of the\nProject—was not a party to either the KHSA or the Amended\nKHSA.\n\n On September 23, 2016, PacifiCorp filed for an amended\nlicense to enable transfer of the dams to KRRC. Having never\npreviously considered the transfer of a license for the sole\npurpose of decommissioning, and based on legal, technical,\nand financial concerns, FERC chose to separately review the\napplications for (1) amendment and (2) transfer. On March 15,\n2018, FERC approved splitting the lower dams to a separate\nlicense, but has yet to approve transfer of that license.\nPacifiCorp remains the licensee for both of these newly split\nlicenses.\n\f 7\n C. Procedural History\n\n On May 25, 2012, Hoopa petitioned FERC for a\ndeclaratory order that California and Oregon had waived their\nSection 401 authority and that PacifiCorp had correspondingly\nfailed to diligently prosecute its licensing application for the\nProject. On June 19, 2014, FERC denied that petition. On\nJuly 18, 2014, Hoopa requested rehearing on its original\npetition, and FERC denied that request on October 16, 2014.\nSubsequently, on December 9, 2014, Hoopa petitioned this\nCourt to review FERC’s orders. This Court initially held the\ncase in abeyance once the Amended KHSA was in place. But\nthe decommissioning the agreement contemplated has yet to\noccur, and in light of Hoopa’s pending petition, we removed\nthe case from abeyance on May 9, 2018.\n\n II. DISCUSSION\n\n We review FERC orders under the Administrative\nProcedure Act (“APA”), which empowers the Court “to reverse\nany agency action that is ‘arbitrary, capricious, an abuse of\ndiscretion, or otherwise not in accordance with law.’” See, e.g.,\nWisconsin Valley Improvement v. FERC, 236 F.3d 738, 742\n(D.C. Cir. 2001) (quoting 5 U.S.C. § 706(2)(A)). In\nconducting the review in this case, because FERC is not the\nagency charged with administering the CWA, the Court owes\nno deference to its interpretation of Section 401 or its\nconclusion regarding the states’ waiver. See Alcoa Power, 643\nF.3d at 972.\n\n A. Sovereign Immunity\n\n The state of Oregon, an amicus curiae, has challenged this\nCourt’s jurisdiction over the instant matter. Specifically,\nCalifornia and Oregon have exercised their sovereign\n\f 8\nimmunity under the Eleventh Amendment by refusing to\nintervene in this review. Oregon avers a status as an\nindispensable party because this review entails a potential\nfinding of the states’ waiver of their Section 401 authority.\nThus, Oregon asserts that this case must be dismissed, relying\non Fed. R. Civ. P. 19.\n\n However, California and Oregon are not indispensable\nparties to the instant case. Contrary to Oregon’s argument,\nFed. R. Civ. P. 19 does not govern this joinder issue. See Int’l\nUnion, United Auto. v. Scofield, 382 U.S. 205, 217 n.10 (1965).\nRather, as an appellate court reviewing an agency action, we\nlook to Fed. R. App. P. 15. Rule 15 only requires the\nrespondent federal agency as a necessary party to a petition for\nreview—joinder of no other party is required. See Fed. R. App.\nP. 15. With regard to sovereign immunity generally, Oregon’s\nposition is incompatible with the precepts of federalism and\nthis Court’s prior precedent. Hoopa’s petition does not involve\na state’s certification decision or a state’s application of state\nlaw, but rather a federal agency’s order, a matter explicitly\nwithin the purview of this Court when petitioned by an\naggrieved party. See 16 U.S.C. § 825l(b). Indeed, FERC\norders regarding a state’s compliance are properly reviewed by\nfederal appeals courts whether or not the state is a party to the\nreview. See, e.g., City of Tacoma v. FERC, 460 F.3d 53 (D.C.\nCir. 2006). This is especially true, in cases such as this, when\nthe dispositive issue on review is the interpretation of federal\nlaw. See U.S. Const. art. III, § 2, cl. 1 (“The judicial Power\nshall extend to all Cases, in Law and Equity, arising under this\nConstitution, the Laws of the United States, and Treaties made,\nor which shall be made, under their Authority. . . .”).\nAccordingly, this Court has jurisdiction over the instant matter,\nand we shall proceed to the merits of Hoopa’s claims.\n\f 9\n B. Waiver under Section 401\n\n Hoopa’s petition presents three theories as bases for relief:\nthe states’ waiver of their Section 401 authority, PacifiCorp’s\nfailure to diligently prosecute its licensing application, and\nFERC’s abdication of its regulatory duty. However, all of\nHoopa’s theories are connected.\n\n Resolution of this case requires us to answer a single issue:\nwhether a state waives its Section 401 authority when, pursuant\nto an agreement between the state and applicant, an applicant\nrepeatedly withdraws-and-resubmits its request for water\nquality certification over a period of time greater than one year.\nIf this type of coordinated withdrawal-and-resubmission\nscheme is a permissible manner for tolling a state’s one-year\nwaiver period, then (1) California and Oregon did not waive\ntheir Section 401 authority; (2) PacifiCorp did not fail to\ndiligently prosecute its application; and (3) FERC did not\nabdicate its duty. However, if such a scheme is ineffective,\nthen the states’ and licensee’s actions were an unsuccessful\nattempt to circumvent FERC’s regulatory authority of whether\nand when to issue a federal license.\n\n Determining the effectiveness of such a withdrawal-and-\nresubmission scheme is an undemanding inquiry because\nSection 401’s text is clear.\n\n If the State, interstate agency, or Administrator,\n as the case may be, fails or refuses to act on a\n request for certification, within a reasonable\n period of time (which shall not exceed one year)\n after receipt of such request, the certification\n requirements of this subsection shall be waived\n with respect to such Federal application. No\n license or permit shall be granted until the\n\f 10\n certification required by this section has been\n obtained or has been waived as provided in the\n preceding sentence.\n\nSee 33 U.S.C. § 1341(a)(1). The temporal element imposed by\nthe statute is “within a reasonable period of time,” followed by\nthe conditional parenthetical, “(which shall not exceed one\nyear).” See id. Thus, while a full year is the absolute\nmaximum, it does not preclude a finding of waiver prior to the\npassage of a full year. Indeed, the Environmental Protection\nAgency (“EPA”)—the agency charged with administering the\nCWA—generally finds a state’s waiver after only six months.\nSee 40 C.F.R. § 121.16.\n\n The pendency of the requests for state certification in this\ncase has far exceeded the one-year maximum. PacifiCorp first\nfiled its requests with the California Water Resources Control\nBoard and the Oregon Department of Environmental Quality\nin 2006. Now, more than a decade later, the states still have\nnot rendered certification decisions. FERC “sympathizes” with\nHoopa, noting that the lengthy delay is “regrettable.”\nAccording to FERC, it is now commonplace for states to use\nSection 401 to hold federal licensing hostage. At the time of\nbriefing, twenty-seven of the forty-three licensing applications\nbefore FERC were awaiting a state’s water quality\ncertification, and four of those had been pending for more than\na decade.\n\n Implicit in the statute’s reference “to act on a request for\ncertification,” the provision applies to a specific request. See\n33 U.S.C. § 1341(a)(1) (emphasis added). This text cannot be\nreasonably interpreted to mean that the period of review for one\nrequest affects that of any other request. In its decision, FERC\nused this text to rescue the states from waiver. FERC found\nthat while PacifiCorp’s various resubmissions involved the\n\f 11\nsame Project, each resubmission was an independent request,\nsubject to a new period of review. Thus, FERC averred that\nthe states had not failed to act. In doing so, FERC acted\narbitrarily and capriciously.\n\n The record does not indicate that PacifiCorp withdrew its\nrequest and submitted a wholly new one in its place, and\ntherefore, we decline to resolve the legitimacy of such an\narrangement. We likewise need not determine how different a\nrequest must be to constitute a “new request” such that it\nrestarts the one-year clock. This case presents the set of facts\nin which a licensee entered a written agreement with the\nreviewing states to delay water quality certification.\nPacifiCorp’s withdrawals-and-resubmissions were not just\nsimilar requests, they were not new requests at all. The KHSA\nmakes clear that PacifiCorp never intended to submit a “new\nrequest.” Indeed, as agreed, before each calendar year had\npassed, PacifiCorp sent a letter indicating withdrawal of its\nwater quality certification request and resubmission of the very\nsame . . . in the same one-page letter . . . for more than a\ndecade. Such an arrangement does not exploit a statutory\nloophole; it serves to circumvent a congressionally granted\nauthority over the licensing, conditioning, and developing of a\nhydropower project.\n\n While the statute does not define “failure to act” or “refusal\nto act,” the states’ efforts, as dictated by the KHSA, constitute\nsuch failure and refusal within the plain meaning of these\nphrases. Section 401 requires state action within a reasonable\nperiod of time, not to exceed one year. California and Oregon’s\ndeliberate and contractual idleness defies this requirement. By\nshelving water quality certifications, the states usurp FERC’s\ncontrol over whether and when a federal license will issue.\nThus, if allowed, the withdrawal-and-resubmission scheme\ncould be used to indefinitely delay federal licensing\n\f 12\nproceedings and undermine FERC’s jurisdiction to regulate\nsuch matters.\n\n Congress intended Section 401 to curb a state’s “dalliance\nor unreasonable delay.” See, e.g., 115 Cong. Rec. 9264 (1969).\nThis Court has repeatedly recognized that the waiver provision\nwas created “to prevent a State from indefinitely delaying a\nfederal licensing proceeding.” See Alcoa Power, 643 F.3d at\n972–73; Millennium Pipeline Co. v. Seggos, 860 F.3d 696,\n701–02 (D.C. Cir. 2017).\n\n While caselaw offers some guidance regarding a state’s\nwaiver, e.g., North Carolina v. FERC, 112 F.3d 1175, 1183–\n85 (D.C. Cir. 1997), this Court has never addressed the specific\nfactual scenario presented in this case, i.e., an applicant\nagreeing with the reviewing states to exploit the withdrawal-\nand-resubmission of water quality certification requests over a\nlengthy period of time. In its supplemental brief, FERC directs\nthe Court’s attention to a Second Circuit opinion which\nsuggested, in light of various practical difficulties, that a state\ncould “request that the applicant withdraw and resubmit the\napplication.” See New York State Dep’t of Envtl. Conservation\nv. FERC, 884 F.3d 450, 455–56 (2d Cir. 2018) (citing\nConstitution Pipeline Co., LLC v. New York State Dep’t of\nEnvtl. Conservation, 868 F.3d 87, 94 (2d Cir. 2017)). That\nsuggestion was not central to the court’s holding. The dicta\nwas offered to rebut the state agency’s fears that a one-year\nreview period could result in incomplete applications and\npremature decisions. See id. (identifying denial without\nprejudice as another alternative).\n\n While it is the role of the legislature, not the judiciary, to\nresolve such fears, those trepidations are inapplicable to the\ninstant case. The record indicates that PacifiCorp’s water\nquality certification request has been complete and ready for\n\f 13\nreview for more than a decade. There is no legal basis for\nrecognition of an exception for an individual request made\npursuant to a coordinated withdrawal-and-resubmission\nscheme, and we decline to recognize one that would so readily\nconsume Congress’s generally applicable statutory limit.\nAccordingly, we conclude that California and Oregon have\nwaived their Section 401 authority with regard to the Project.\n\n C. Futility\n\n FERC postulated that a finding of waiver would require\nthe agency to deny PacifiCorp’s license. As a result,\nPacifiCorp would have to file a decommissioning plan for the\nKlamath dams, and since decommissioning of the Project is an\nactivity that itself would result in a “discharge into the\nnavigable waters,” that plan would be subject to its own set of\nthe oft-delayed state water quality certifications. Thus, in a\nfutile sequence of events, the Project would revert back to its\npresent state, only burdened with additional delays.\n\n FERC may be correct that “[i]ndefinite delays in\nprocessing [licensing] applications are . . . not in the public\ninterest.” See Georgia-Pacific Corp., 35 FERC ¶ 61120, 61248\nn.8 (Apr. 25, 1986). However, such practical concerns do not\ntrump express statutory directives. See supra Section II.B.\nRegardless, had FERC properly interpreted Section 401 and\nfound waiver when it first manifested more than a decade ago,\ndecommissioning of the Project might very well be underway.\n\n Further, FERC possesses a critical role in protecting the\npublic interest in hydropower projects. See 16 U.S.C.\n§§ 797(e), 803(a), 808(a). FERC solicits comments from\ninterested parties and holds public meetings. See, e.g., U.S.\nDep’t of Interior v. FERC, 952 F.2d 538, 540 (D.C. Cir. 1992).\nFERC may also “participate in an advisory role in settlement\n\f 14\ndiscussions or review proposed settlements” for the\ndevelopment or decommissioning of such projects. See\nSettlements in Hydropower Licensing Proceedings under Part I\nof the Federal Power Act, 116 FERC ¶ 61270, 62086 (Sept. 1,\n2006). Here, it did neither. Hoopa’s interests are not protected\ndirectly as it is not a party to the KHSA or Amended KHSA,\nnor are its interests protected indirectly through any\nparticipation by FERC in those same settlement agreements.\nTherefore, we disagree that a finding of waiver is futile\nbecause, at a minimum, it provides Hoopa and FERC an\nopportunity to rejoin the bargaining table.\n\n III. CONCLUSION\n\n For the reasons set forth above, we vacate and remand the\nrulings under review. FERC shall proceed with its review of,\nand licensing determination for, the Klamath Hydroelectric\nProject.\n[END_CASE]",
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7,334,553 | El-Sayed DAHMAN v. EMBASSY OF the State of QATAR and The State of Qatar | Dahman v. Embassy Of Qatar | 2019-01-25 | Civil Action No. 17-2628 (JEB) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Boasberg", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252473/", "author_raw": ""}]} | BOASBERG | BOASBERG | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334553/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: El-Sayed DAHMAN v. EMBASSY OF the State of QATAR and The State of Qatar\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,743 | Jin O. JIN v. PARSONS CORPORATION | Jin v. Parsons Corp. | 2019-01-29 | Case No. 1:18-cv-02222 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252663/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334743/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Jin O. JIN v. PARSONS CORPORATION\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,642 | Chantal ATTIAS v. CAREFIRST, INC. | Attias v. Carefirst, Inc. | 2019-01-30 | Case No. 15-cv-00882 (CRC) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Background, Cooper", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252562/", "author_raw": ""}]} | COOPER | COOPER | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334642/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Chantal ATTIAS v. CAREFIRST, INC.\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,335,331 | United States v. Clifton SMITH | United States v. Smith | 2019-01-30 | Criminal Action No. 18-193 (RDM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "Moss", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7253251/", "author_raw": ""}]} | MOSS | MOSS | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7335331/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: United States v. Clifton SMITH\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,742 | Juan Luciano MACHADO AMADIS v. DEPARTMENT OF JUSTICE | Amadis v. Dep't of Justice | 2019-01-31 | Case No. 1:16-cv-2230 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252662/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334742/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Juan Luciano MACHADO AMADIS v. DEPARTMENT OF JUSTICE\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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7,334,745 | SIQING WANG v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES | Wang v. U.S. Citizenship & Immigration Servs. | 2019-01-31 | Case No. 1:16-cv-01963 (TNM) | U.S. Court of Appeals for the District of Columbia Circuit | {"judges": "McFadden", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/7252665/", "author_raw": ""}]} | MCFADDEN | MCFADDEN | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/7334745/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: SIQING WANG v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES\nCourt: U.S. Court of Appeals for the District of Columbia Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,578,214 | Charles T. JENKINS, Jr., Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent | Jenkins v. Merit Sys. Prot. Bd. | 2019-01-02 | 2017-2193 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Reyna, Taranto, Wallach", "parties": "", "opinions": [{"author": "WALLACH, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n CHARLES T. JENKINS, JR.,\n Petitioner\n\n v.\n\n MERIT SYSTEMS PROTECTION BOARD,\n Respondent\n ______________________\n\n 2017-2193\n ______________________\n\n Petition for review of the Merit Systems Protection\nBoard in No. DA-0752-16-0080-I-2.\n ______________________\n\n Decided: January 2, 2019\n ______________________\n\n AARON BENJAMIN FRUMKIN, Gibson, Dunn & Crutcher\nLLP, Los Angeles, CA, argued for petitioner.\n\n TARA JEAN KILFOYLE, Office of the General Counsel,\nMerit Systems Protection Board, Washington, DC, argued\nfor respondent. Also represented by TRISTAN LEAVITT,\nKATHERINE MICHELLE SMITH; DAVID PEHLKE, Commercial\nLitigation Branch, Civil Division, United States Depart-\nment of Justice, Washington, DC.\n ______________________\n\n Before REYNA, WALLACH, and TARANTO, Circuit Judges.\n\n2 JENKINS v. MSPB\n\n\n\n\n Opinion for the court filed by Circuit Judge WALLACH.\n Dissenting opinion filed by Circuit Judge REYNA.\nWALLACH, Circuit Judge.\n Petitioner Charles T. Jenkins, Jr. seeks review of a\nMerit Systems Protection Board (“MSPB”) final decision\ndismissing his appeal for lack of jurisdiction. See Jenkins\nv. Dep’t of the Army, No. DA-0752-16-0080-I-2, 2017 WL\n1209626 (M.S.P.B. Mar. 31, 2017) (J.A. 1–28). 1 We have\njurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We\naffirm.\n BACKGROUND\n For nearly thirty-three years, Mr. Jenkins was em-\nployed by the U.S. Department of the Army (“Army”), and\nprior to his retirement, worked as a Supervisory Army\nCommunity Services (“ACS”) Division Chief. J.A. 71.\nFrom August 2010 to January 2012, Mr. Jenkins continu-\nally failed performance reviews and at one point served a\nthree-day suspension in connection with submitting “an\nACS Information Paper” to a higher command without\nrouting and gaining the necessary approval through his\nfirst-level supervisor. See J.A. 400–06. As a result of his\nreviews, Mr. Jenkins was put on a Performance Im-\nprovement Plan (“PIP”). See J.A. 407–14. After notifying\nMr. Jenkins that he failed his PIP, see J.A. 163, his first-\n\n\n\n 1 An administrative judge issued an initial decision\non March 31, 2017, see J.A. 1–28, which became final\nwhen Mr. Jenkins did not file a petition for review, see\nJ.A. 21; see also 5 C.F.R. § 1201.113 (2014) (providing\n“[t]he initial decision of the judge will become the\n[MSPB]’s final decision [thirty-five] days after issuance”\nunless, inter alia, “any party files a petition for review”).\nTherefore, we refer to the Initial Decision as the MSPB’s\nFinal Decision.\n\nJENKINS v. MSPB 3\n\n\n\nlevel supervisor asked him whether he would be interest-\ned in moving to a nonsupervisory position at the same\ngrade and pay level, J.A. 206. Mr. Jenkins refused.\nJ.A. 119. In February 2012, Mr. Jenkins’s first-level\nsupervisor proposed his removal for unacceptable perfor-\nmance. J.A. 38–46 (Notice of Proposed Removal). After\nreceiving the Notice of Proposed Removal, but before he\nwas officially removed by the Army, Mr. Jenkins sent an\nemail to his first-level supervisor stating that “[e]ffective\n31 March 2012 I will retire.” J.A. 37.\n Mr. Jenkins submitted written responses challenging\nthe basis for his removal, however, after “consider[ation]\nand review[ of his] written reply,” the Army issued a Final\nRemoval Decision informing Mr. Jenkins that he would be\nremoved from service effective April 1, 2012. See\nJ.A. 237–39. That same day, March 21, 2012, the Army\nissued Mr. Jenkins a “Cancellation of Decision on Remov-\nal” stating “[Mr. Jenkins is] scheduled to retire from\nfederal service effective 31 March 2012” and “[i]f [he]\nretire[s] from federal service on 31 March 2012, this\nmemorandum will serve as revocation and cancellation\neffective 31 March 2012.” J.A. 47. Following the Final\nRemoval Decision, Mr. Jenkins indicated on a Standard\nForm-50 (“SF-50”) that he intended to retire pursuant to\nhis previously submitted retirement application, J.A.\n241–43, stating “voluntary retirement effective 31\nMar[ch] [20]12” as his “[r]easons for\n[r]esignation/[r]etirement” J.A. 241. It is undisputed that\nthe “revocation and cancellation . . . of the [Notice of\nProposed Removal]” took effect upon that March 31, 2012\nretirement. J.A. 47 (Cancellation of Decision on Remov-\nal). Subsequently, Mr. Jenkins appealed to the MSPB\nalleging that his retirement was involuntary because the\n\n4 JENKINS v. MSPB\n\n\n\n\nagency “proposed to remove” him if he did not retire.\nJ.A. 31–35. 2\n In March 2017, the MSPB “dismissed [Mr. Jenkins’s\nappeal] for lack of jurisdiction.” J.A. 21. Specifically, the\nMSPB found that it lacked jurisdiction over Mr. Jenkins’s\nchallenge to the Army’s proposed removal because “the\n[Army] rescinded the removal decision upon [Mr. Jen-\nkins]’s retirement” and nothing in the record indicated he\nsought to withdraw his retirement prior to the effective\nremoval date. J.A. 6; see J.A. 336–38 (providing argument\nand evidence, by the Army, that the March 21, 2012\nDecision of Proposed Removal issued “26-days after [Mr.\nJenkins] filed an application of retirement”). The MSPB\nalso found it lacked jurisdiction over his involuntary\nretirement claim because Mr. Jenkins failed to make a\nnon-frivolous claim. J.A. 21.\n DISCUSSION\n Mr. Jenkins contends the MSPB erred by finding it\nlacked jurisdiction over his claim because: (1) “the Army\nissued [the] [F]inal [R]emoval [D]ecision before Mr. Jen-\nkins retired,” Pet’r’s Br. 17 (capitalizations modified); see\nid. at 17–25, and (2) its decision that his retirement was\nvoluntary was not supported by substantial evidence due\nto the fact that his retirement was “based on misinfor-\nmation” and “was obtained through coercion,” id. at 26,\n29; see id. at 25–33. We first discuss the relevant stand-\nards of review and legal standards, and then address each\nof Mr. Jenkins’s arguments.\n\n\n\n 2 When Mr. Jenkins filed his Federal Circuit Rule\n15(c) Statement Concerning Discrimination on July 7,\n2017, he abandoned his formerly asserted discrimination\nclaims. Pet’r’s Fed. Cir. R. 15(c) Statement, ECF No. 10;\nsee Oral Arg. at 12:31–40, http://oralarguments.cafc.\nuscourts.gov/default.aspx?fl=2017-2193.mp3.\n\nJENKINS v. MSPB 5\n\n\n\n I. Standard of Review\n We will uphold a decision of the MSPB unless it is\n“arbitrary, capricious, an abuse of discretion, or otherwise\nnot in accordance with law” or “unsupported by substan-\ntial evidence.” 5 U.S.C. § 7703(c)(1), (3) (2012). We\nreview whether the MSPB has jurisdiction over an appeal\nde novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905,\n909 (Fed. Cir. 2008). “Findings of fact underlying the\n[MSPB]’s jurisdictional decision are reviewed for substan-\ntial evidence.” Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d\n1097, 1101 (Fed. Cir. 2011) (internal quotation marks and\ncitation omitted). “Substantial evidence is more than a\nmere scintilla of evidence, but less than the weight of the\nevidence.” Jones v. Dep’t of Health & Human Servs., 834\nF.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation\nmarks and citations omitted). “The petitioner bears the\nburden of establishing error in the [MSPB]’s decision.”\nHarris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467\n(Fed. Cir. 1998).\n II. The Improper Removal Claim\n A. Legal Standard\n The MSPB’s “jurisdiction is limited to those matters\nover which it has been given jurisdiction by law, rule, or\nregulation.” 5 C.F.R. § 1201.3(a). The petitioner must\nestablish by preponderant evidence that the MSPB has\njurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A).\nGenerally, the MSPB has jurisdiction over appeals of\nremovals of non-probationary employees, based on unac-\nceptable performance. See 5 C.F.R. § 1201.3(a)(5); 5\nU.S.C. § 4303(e). “If an appealable action is canceled or\nrescinded by an agency, any appeal from that action\nbecomes moot,” thereby depriving the MSPB of jurisdic-\ntion. Cooper v. Dep’t of the Navy, 108 F.3d 324, 326 (Fed.\nCir. 1997).\n\n6 JENKINS v. MSPB\n\n\n\n\nB. The MSPB Did Not Err in Holding It Lacked Jurisdic-\n tion over the Removal Claim\n The MSPB held that, because “[Mr. Jenkins] retired\nbefore the removal action was effected, and the [Army]\nrescinded the removal decision upon [his] retirement,” the\nMSPB lacked jurisdiction over his appeal challenging the\nproposed removal. J.A. 6 (emphasis added). Mr. Jenkins\navers the MSPB has jurisdiction over his appeal because\nhis retirement date was “after the Army issued a final\ndecision to remove him.” Pet’r’s Br. 17 (emphasis added).\nWe disagree with Mr. Jenkins.\n The sequence of retirement and rescission is not con-\ntrolling. Rather, the MSPB lacked jurisdiction because\nthe Army rescinded its removal. The Army proposed\nremoval of Mr. Jenkins on February 16, 2012, J.A. 38, Mr.\nJenkins indicated his intent to retire on February 23,\n2012, J.A. 236, and the Army issued its Final Removal\nDecision on March 21, 2012, J.A. 237–39. However, the\nsame day his retirement went into effect, the Army re-\nscinded the removal decision. J.A. 47 (Cancellation of\nDecision on Removal). The Army removed all references\nto the proposed removal action in Mr. Jenkins’s personnel\nfile, thus eliminating any potential consequences the\nremoval could have had on his retirement. See J.A. 240–\n43 (demonstrating that the Notice of Proposed Removal\nand SF-50 do not reference the removal decision), 333\n(acknowledging the agency evidence and arguments were\nmade under penalty of perjury), 358 (showing a printout\nof a chronological listing of Mr. Jenkins’s SF-50s from\n2010 through 2012). This rescinding of the removal\ndecision mooted Mr. Jenkins’s improper removal claim.\nSee Cooper, 108 F.3d at 326 (explaining, “[i]f an appeala-\nble action is canceled or rescinded by an agency, any\nappeal from that action becomes moot” and that the\npetitioner’s appeal was moot because the agency, inter\nalia, removed “all references to [the removal action] from\n[his] official personnel file” thereby “eliminat[ing] all\n\nJENKINS v. MSPB 7\n\n\n\nconsequences of that action”). Therefore, the MSPB lacked\njurisdiction to hear the appeal.\n Mr. Jenkins’s primary counterargument fails. He\ncontends that his challenge to the removal is appealable\nto the MSPB under 5 U.S.C. § 7701(j) because the MSPB\n“consider[ed] [his] ‘retirement status’” when determining\nwhether it had jurisdiction. Pet’r’s Br. 23. Section 7701(j)\nprovides that the MSPB, in “determining the appealabil-\nity . . . of any case involving a removal from the service,”\nmay not take into account “an individual’s status under\nany retirement system established by or under Federal\nstatute.” 5 U.S.C. § 7701(j) (emphasis added); see Mays v.\nDep’t of Transp., 27 F.3d 1577, 1579 (Fed. Cir. 1994)\n(holding that “[t]he plain language of § 7701(j) means that\nretirement status cannot be taken into account in deter-\nmining the appealability of ‘any case involving a remov-\nal’”). In Mays, we considered § 7701(j) and held that the\nMSPB had jurisdiction over petitioner’s appeal because\nthe petitioner’s retirement was effective the same date as\nher removal and her retirement form stated she “[r]etired\nafter receiving [final] written notice . . . of [the] decision to\nseparate.” 27 F.3d at 1578.\n Mays did not involve a rescission of the removal deci-\nsion being appealed to the MSPB. In contrast, in Cooper,\nwe held that when an agency has “rescinded” an effectu-\nated removal action during the pendency of an appeal,\neliminated “all references to [the removal] action from [a\npetitioner]’s official personnel file,” and “substituted a\nseparation” based on retirement for the removal, the\nappeal of the removal is moot and § 7701(j) is not impli-\ncated. 108 F.3d at 325–26; see id. (determining that,\nbecause “the agency had rescinded his removal[,] the\n[MSPB] did not need to consider [the appellant]’s retire-\nment status to reach its conclusion that his appeal was\n\n8 JENKINS v. MSPB\n\n\n\n\nmoot”). 3 This case is governed by Cooper. Therefore,\n§ 7701(j) does not provide jurisdiction because the case no\nlonger involved a removal. See id. at 326 (finding\n§ 7701(j) did not apply). Because Mr. Jenkins’s case no\nlonger involved a removal, the MSPB did not need to\nconsider Mr. Jenkins’s retirement status in determining\nthat it lacked jurisdiction over the appeal.\n III. The Involuntary Retirement Claim\n A. Legal Standard\n An involuntary retirement is an adverse employment\naction “where an agency imposes the terms of an employ-\n\n\n\n 3 The dissent states that the majority believes this\ncase is unlike Mays because “removing from Mr. Jenkins’s\nfile all the references to [his] removal eliminated ‘all\nconsequences’ of the removal” and that “Mr. Jenkins\nwould not have retired but for his removal.” Dissent\nOp. 6. The dissent, however, fails to recognize that Mays\ndid not involve a rescission of a removal decision being\nappealed to the MSPB. Like Cooper, the MSPB in this\ncase considered the rescission of the removal decision in\nmaking the determination that it lacked jurisdiction over\nthe appeal. See Cooper, 108 F.3d at 326 (explaining, “in\ndeciding that [the] appeal was moot, the [MSPB] merely\nrelied on the fact that the agency had rescinded his re-\nmoval”). Section 7701(j) does not prohibit an employing\nagency from taking an employee’s retirement status into\naccount in deciding whether to cancel a removal decision;\nit only prohibits the MSPB from taking an appellant’s\nretirement status into account in determining whether a\nnon-cancelled removal decision is appealable. See id.\nBecause the MSPB determined the Army rescinded Mr.\nJenkins’s removal decision, as in Cooper, it did not need to\nconsider his retirement status to determine that it lacked\njurisdiction over the appeal. J.A. 6.\n\nJENKINS v. MSPB 9\n\n\n\nee’s resignation, the employee’s circumstances permit no\nalternative but to accept, and those circumstances were\nthe result of improper acts of the agency.” Schultz v. U.S.\nNavy, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (internal\nquotation marks omitted). “The [MSPB] has jurisdiction\nover an involuntary retirement, which is treated as if it\nwere a removal.” Cooper, 108 F.3d at 326. “An employee\nthus may seek reinstatement or back pay as a result of an\ninvoluntary retirement.” Id. There is a presumption that\nan employee retired voluntarily. Staats v. U.S. Postal\nServ., 99 F.3d 1120, 1123 (Fed. Cir. 1996). To overcome\nthis presumption, a petitioner must establish (1) the\nretirement was the product of misinformation or decep-\ntion by the agency; or (2) the retirement was the product\nof coercion by the agency. Terban v. Dep’t of Energy, 216\nF.3d 1021, 1024 (Fed. Cir. 2000); see Staats, 99 F.3d at\n1124 (“[T]he doctrine of coercive involuntariness is a\nnarrow one.”). The test for involuntariness is “an objec-\ntive one” that “considers the totality of the circumstanc-\nes.” Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,\n1329 (Fed. Cir. 2006) (en banc) (internal quotation marks\nand citation omitted).\n B. Substantial Evidence Supports the MSPB’s Finding\n that Mr. Jenkins’s Retirement Was Voluntary\n The MSPB considered all record evidence related to\nthe voluntariness of Mr. Jenkins’s retirement, see\nJ.A. 14–17 (analyzing, inter alia, the length of time\noffered to improve performance, testimony and written\nrecords regarding performance deficiencies, and various\ncommunications between Mr. Jenkins and his first-level\nsupervisor), and determined that while Mr. Jenkins was\nfaced with the difficult choice of either retiring or oppos-\ning a removal action, this choice did not render his re-\ntirement involuntary because he chose to follow through\nwith his retirement decision, J.A. 20–21. Mr. Jenkins\nargues his retirement was involuntary because it was\nbased on “misinformation” such as “management officials”\n\n10 JENKINS v. MSPB\n\n\n\n\ntelling him that he needed to retire to protect his retire-\nment benefits, Pet’r’s Br. 26, and that it was obtained\nthrough “coercion,” id. at 29. We disagree with Mr. Jen-\nkins.\n Substantial evidence supports the MSPB’s finding\nthat Mr. Jenkins voluntarily retired. First, Mr. Jenkins\nsubmitted personnel forms that indicate that his retire-\nment from the Army was voluntary. Specifically, under\nthe section asking for reasons for retirement it said\n“[v]oluntary retirement.” See J.A. 243; see J.A. 243 (stat-\ning in the SF-50 the reason for retirement is “[v]oluntary\nretirement”).\n Second, Mr. Jenkins’s retirement was not the product\nof misinformation by the agency. The only evidence of\nrecord cited by Mr. Jenkins regarding any alleged misrep-\nresentation is that an unidentified individual told Mr.\nJenkins he should retire “to protect his retirement bene-\nfits.” J.A. 425; see J.A. 425 (providing Mr. Jenkins’s pre-\nhearing submissions). This evidence is insufficient to\nsupport Mr. Jenkins’s position because he never identified\nany individual who made this statement nor did he pro-\nvide any foundation for the alleged statement. See\nJ.A. 425; see also J.A. 18–19 (explaining by the MSPB\nthat Mr. Jenkins admitted he did not receive misinfor-\nmation about the ability to retire from Human Resources);\ncf. Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1573–75\n(Fed. Cir. 1983) (finding involuntary retirement where\npetitioner proved reasonable reliance on a misrepresenta-\ntion made by a specific agency counselor). For the first\ntime on appeal, Mr. Jenkins argues that a notation on his\nfinal Notification of Personnel Action Form says his\nreason for retirement was “to obtain retirement benefits.”\nPet’r’s Br. 27–28. While this notation may demonstrate\nthe Army knew Mr. Jenkins misunderstood the effect a\nremoval would have on his retirement benefits, it does not\nevidence reliance by Mr. Jenkins upon alleged agency\nmisinformation. J.A. 241. Importantly, Mr. Jenkins\n\nJENKINS v. MSPB 11\n\n\n\nprovided no evidence that he desired to retire based on\nthat belief. See J.A. 18–19 (explaining by the MSPB that\nMr. Jenkins provided no “specifics regarding the alleged\nmisrepresentation”); see Pet’r’s Br. 27–28. After he re-\nceived the Notice of Proposed Removal, J.A. 38–46, and\nwas informed of his appeal rights by the Army, J.A. 87, he\nstill elected to retire.\n Third, Mr. Jenkins’s retirement was not caused by co-\nercion. Mr. Jenkins argues that his retirement was the\nproduct of coercion because the Army “imposed the terms\nof [his] retirement” and he had “no [alternative] but to\nretire.” Pet’r’s Br. 30–31. A petitioner can establish his\nretirement was the product of coercion if he proves by\npreponderant evidence that an agency created “working\nconditions so intolerable” that he was “driven to involun-\ntarily . . . retire.” Garcia, 437 F.3d at 1328–29. “[T]o\nestablish involuntariness on the basis of coercion” due to a\nthreatened or proposed adverse action, the employee must\nshow that: (1) he involuntarily accepted the terms “effec-\ntively imposed” by the agency; (2) the circumstances\npresented “no realistic alternative” but to retire; and\n(3) his retirement was the result of “improper acts of the\nagency.” Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341\n(Fed. Cir. 2001). Here, however, Mr. Jenkins has adduced\nno evidence to demonstrate that his working conditions\nwere intolerable. See generally Pet’r’s Br. Instead, Mr.\nJenkins simply had the choice of not retiring and opposing\nthe removal, or retiring. 4 Thus, the MSPB correctly found\n\n\n\n 4 The dissent states that “the Army put Mr. Jenkins\nin precisely the situation of making a forced choice be-\ncause its offer to rescind his removal was conditioned\nupon Mr. Jenkins first retiring.” Dissent Op. 2. In\nSchultz, however, we explained that when “an employee is\nfaced merely with the unpleasant alternatives of resign-\ning or being subject to removal for cause, such limited\n\n12 JENKINS v. MSPB\n\n\n\n\nMr. Jenkins failed to demonstrate that his retirement was\ninvoluntary.\n CONCLUSION\n We have considered Mr. Jenkins’s remaining argu-\nments and find them unpersuasive. Accordingly, the\nFinal Decision of the Merit Systems Protection Board is\n AFFIRMED\n\n\n\n\nchoices do not make the resulting resignation an involun-\ntary act.” 810 F.2d at 1136. Here, the MSPB simply\nrelied on Schultz, in addition to several MSPB cases, in\nholding that the “unpleasant choice” to retire or be re-\nmoved “does not rebut the presumed voluntariness” of the\ndecision to retire. See J.A. 16 (citations omitted). While\nMr. Jenkins argues that his factual situation was differ-\nent because the “rescission was expressly conditioned” on\nhis retirement, Pet’r’s Br. 25, our precedent does not\nsupport such a distinction, Schultz, 810 F.2d at 1136.\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n CHARLES T. JENKINS, JR.,\n Petitioner\n\n v.\n\n MERIT SYSTEMS PROTECTION BOARD,\n Respondent\n ______________________\n\n 2017-2193\n ______________________\n\n Petition for review of the Merit Systems Protection\nBoard in No. DA-0752-16-0080-I-2.\n ______________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355467/", "author_raw": "WALLACH, Circuit Judge."}, {"author": "REYNA, Circuit Judge, dissenting", "type": "dissent", "text": "REYNA, Circuit Judge, dissenting.\n The majority concludes that the Merit Systems Pro-\ntection Board lacks jurisdiction to review the agency’s\nremoval decision because the agency rescinded its remov-\nal decision in exchange for Petitioner Charles T. Jenkins,\nJr.’s retirement. See Maj. Op. 5–8. As a result, the ma-\njority opinion undermines congressionally mandated\nprotections for federal employees recognized by this court\nin Mays v. Department of Transportation, and provides\nfederal agencies a playbook on how to structure the\nremoval of federal employees to preclude judicial review of\nremoval decisions. Now, the Catch-22 dilemma imposed\non Mr. Jenkins will ensnare federal employees in the\nfuture. I respectfully dissent.\n\n2 JENKINS v. MSPB\n\n\n\n\n 1. Section 7701(j)\n Section 7701(j) of Title 5 of the United States Code\nprohibits the Board from considering in “any case involv-\ning a removal from the service . . . an individual’s status\nunder any retirement system . . . [or] any [retirement]\nelection.” In passing this statute as part of the Civil\nService Due Process Amendments of 1990, “Congress\nintended to end the situation which forced federal em-\nployees to choose between appealing a removal action and\naccepting retirement benefits.” Mays v. Dep’t. of Transp.,\n27 F.3d 1577, 1580 (Fed. Cir. 1994). Yet the Army put\nMr. Jenkins in precisely the situation of making a forced\nchoice because its offer to rescind his removal was condi-\ntioned upon Mr. Jenkins first retiring.\n 2. Mays\n This court’s decision in Mays plainly applies to this\ncase. In Mays, we held that the appellant retained her\nappeal rights when she separated from service through\nretirement after “the agency had made the final decision\nto remove her.” 27 F.3d at 1580–81. Ms. Mays first\nreceived an initial notice of proposed removal. Id. at\n1577–78. The agency then informed Ms. Mays by decision\nletter that removal had been approved and she would be\nremoved from her position a few days later. Id. at 1578.\nMs. Mays retired on the same date her removal became\neffective. Id. The SF-50 form in her personnel file indi-\ncated that she “[r]etired after receiving written notice\n. . . of [the] decision to separate for unacceptable perfor-\nmance.” Id. Ms. Mays appealed her removal, which the\nBoard dismissed for lack of jurisdiction, holding that she\nhad “divested the Board of jurisdiction” unless she could\nprove “her retirement was involuntary” because she\nretired on the same effective date as her removal. Id.\n This court reversed upon determining that 5 U.S.C.\n§ 7701(j) controls because Ms. Mays’s case “involve[d] a\nremoval,” despite her retirement. Id. at 1581. We con-\n\nJENKINS v. MSPB 3\n\n\n\ncluded that the case “involved a removal” because Ms.\nMays could not “escape the final agency decision to re-\nmove her,” and the agency did not dispute that Ms. Mays\nwould not have retired when she did but for the removal\naction. Id. at 1580. The court found that the Board erred\nby considering Ms. Mays’s retirement status, which\n§ 7701(j) prohibited because her case involved a removal.\nId. We pointed to the legislative history of § 7701(j),\nnoting that the legislation promised to “allow[] an em-\nployee who is eligible to retire but who the agency wants\nto fire to take his or her annuity and still challenge the\nadverse action before the [Board].” Id. The majority\nopinion breaks away from that promise.\n 3. Cooper\n The majority relies on Cooper v. Department of the\nNavy. Maj. Op. 7–8. In Cooper, the Navy removed Mr.\nCooper for inability to perform his duties. Cooper v. Dep’t\nof the Navy, 108 F.3d 324, 325 (Fed. Cir. 1997). Mr.\nCooper appealed, and in the course of the appeal, applied\nfor disability retirement benefits. Id. Despite the remov-\nal decision, OPM approved Mr. Cooper for retirement\nbenefits. Id. As to removal, the Board “held that as long\nas the removal was effected prior to OPM’s grant of\ndisability retirement, the Board had jurisdiction to hear\nthe appeal, regardless of the effective date of the retire-\nment.” Id. In response to the Board’s holding, the Navy\nrescinded Mr. Cooper’s removal, removed all references to\nthe removal action from his personnel file, and substitut-\ned a disability retirement separation for the removal. Id.\nThe Board then dismissed the appeal as moot. Id.\n We affirmed in Cooper, holding that “[t]he Navy’s can-\ncellation of the removal action and the removal of all\nreferences to that action from Cooper’s official personnel\nfile eliminated all the consequences of that action and\nthus rendered Cooper’s appeal moot.” Id. at 326. The\nCooper court recognized the Mays court’s characterization\n\n4 JENKINS v. MSPB\n\n\n\n\nof § 7701(j) as intended to “ensure that an employee who\nwas eligible for retirement at the time of his removal\ncould take a retirement annuity without forfeiting his\nright to challenge his removal.” Id. Mr. Cooper specifical-\nly argued that to hold his appeal was moot would permit\nagencies to avoid review of removal decisions by removing\nan employee, waiting for that employee to file for retire-\nment, and then rescinding the removal and moving to\ndismiss the appeal. In dismissing that argument, the\nCooper court relied on the ability of employees to argue\ninvoluntary retirement as a safeguard against such\nagency tactics. See id. at 326.\n The removal in this case is closer to Mays than\nCooper. As in Mays, the agency in this case initially\nproposed removal, made a final decision to terminate, and\ntook action by notifying Mr. Jenkins that he would be\nterminated. In addition, Mr. Jenkins retired the same\nday removal was effected and would not have retired but\nfor the removal. The majority is correct that Mays did not\ninvolve a rescission of removal. But Mays remains appli-\ncable here because, like the agency in Mays, the Army\nforced its employee to choose between appealing the\nremoval action and accepting retirement benefits, directly\ncontravening the congressional intent of § 7701(j). As Mr.\nJenkins argues, he retired to “protect his retirement\nbenefits.” Maj. Op. 10; see also J.A. 241 (SF-50 form\nreflecting that he retired “to obtain retirement benefits”).\nThe March 21, 2012 “Cancellation of Decision on Remov-\nal” memorandum received by Mr. Jenkins makes clear\nthat rescission of his removal was conditioned upon him\nfirst retiring:\n If you retire from federal service on 31 March\n 2012, this memorandum will serve as revocation\n and cancellation effective 31 March 2012 of the\n [Notice of Decision] dated 21 March 2012. Howev-\n er, if you do not retire effective 31 March 2012, the\n [Notice of Decision] dated 21 March 2012 will not\n\nJENKINS v. MSPB 5\n\n\n\n be revoked and cancelled and your removal from\n your position and federal service will be effective\n as of 1 April 2012.\nJ.A. 240 (emphases added).\n By contrast, Mr. Cooper’s agency never forced him to\nchoose between appealing his removal action and accept-\ning retirement benefits. The agency removed Mr. Cooper,\nand it was only after he appealed the removal decision\nthat he applied for retirement benefits. Mr. Cooper was\nnot offered rescission in exchange for retiring and giving\nup his right to appeal.\n The majority states that the “sequence of retirement\nand rescission is not controlling.” Maj. Op. 6. But timing\nis not what distinguishes this case from Cooper. The\nquestion is whether there was a conditional offer of re-\nscission in exchange for voluntary retirement. This\ndistinction is key in the context of § 7701(j). In Cooper,\nthe Board “merely relied on the fact that the agency had\nrescinded his removal [and] did not need to consider\nCooper’s retirement status to reach its conclusion that his\nappeal was moot.” 108 F.3d at 326. But here, in direct\nviolation of § 7701(j), the Board expressly considered Mr.\nJenkins’s retirement in concluding that the removal had\nbeen rescinded as a direct result of his retirement:\n Here, the appellant retired before the removal ac-\n tion was effected, and the agency rescinded the\n removal decision upon the appellant’s retirement.\n The agency removed all references to the removal\n action in the employee’s personnel file, eliminat-\n ing all consequences of the removal.\nJ.A. 6 (emphases added). By conditioning rescission upon\nMr. Jenkins’s retirement, the agency forced the Board to\n“consider [the employee’s] retirement status to reach its\nconclusion that his appeal was moot.” Cooper, 108 F.3d at\n326. Unlike in Cooper, the Board could not have consid-\n\n6 JENKINS v. MSPB\n\n\n\n\nered the rescission without also considering Mr. Jenkins’s\nretirement status.\n Finally, the majority reasons that removing from Mr.\nJenkins’s file all the references to Mr. Jenkins’s removal\neliminated “all consequences” of the removal, therefore\nmaking this case unlike Mays. Maj. Op. 6, 7–8 n.3. This\nis incorrect because Mr. Jenkins would not have retired\nbut for his removal. In addition, removing references to\nthe removal action from his file was conditioned on anoth-\ner more enduring and significant consequence: Mr. Jen-\nkins loses his right to challenge the removal action by\nmaking an appeal.\n The majority decision is an exercise in splitting hairs\nthat runs contrary to the Supreme Court’s directive to\ntake an “expansive view” of “remedial legislation.” Ne.\nMarine Terminal Co. v. Caputo, 432 U.S. 249, 268 (1977);\nsee also Van Wersch v. Dep’t of Health & Human Servs.,\n197 F.3d 1144, 1149 (Fed. Cir. 1999) (discussing that the\nCivil Service Due Process Amendments of 1990, of which\n§ 7701(j) is a part, were intended to “remedy [the] state of\naffairs” for certain federal employees). To distinguish this\ncase from Mays on the basis that Mr. Jenkins’s record was\nwiped clean of references to his removal is inconsistent\nwith this court’s obligation to interpret such statutes to\n“avoid untenable distinctions and unreasonable results\nwhenever possible.” Mays, 27 F.3d at 1580 (quoting Am.\nTobacco Co. v. Patterson, 456 U.S. 63, 71 (1982), and\nrefusing to distinguish the case on the basis of what a\npersonnel officer writes in an employee’s file).\n Here, reversal is warranted to condemn what are in-\niquitous tactics by agencies to force employees to choose\nwhether to be fired, or to retire. They are iniquitous\nbecause the tactics insulate agency decisions from judicial\nreview in cases where employees choose to preserve their\nretirement benefits. The result of this choice is the em-\nployee’s loss of the valuable ability to appeal conferred by\n\nJENKINS v. MSPB 7\n\n\n\nfederal statute. See 5 U.S.C. § 7701(a). To read Cooper as\nholding that all rescinded removal decisions escape the\nscope of § 7701(j), especially when offered in exchange for\nan employee’s voluntary retirement, is counter to legisla-\ntive intent. Once an employee has been forced to make\nthis choice, what a personnel officer writes in the employ-\nee’s file is a distinction that makes no difference. The\nmajority’s decision will incentivize agencies to condition\nrescissions of removals on an employee’s first retiring to\navoid the burden of defending removal actions.\n The Government argues that Mr. Jenkins has not\nbeen prejudiced because he can argue involuntary retire-\nment. See Cooper, 108 F.3d at 326. The majority con-\ncludes that Mr. Jenkins could not show involuntary\nretirement because he could not show intolerable working\nconditions, and simply having to make a choice is not\nsufficient to establish coercion. The majority notes that\n“Mr. Jenkins simply had the choice of not retiring and\nopposing the removal, or retiring.” Maj. Op. 11. This\ncharacterization disregards the importance of pension\nbenefits to our nation’s federal employees. The majority’s\ndecision creates a jurisdictional loophole by showing\nagencies how to divest federal employees of their right to\nappeal a removal in the interest of protecting those bene-\nfits, while ensuring their retirement remains sufficiently\nvoluntary to keep the Board from having jurisdiction at\nall. See Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed.\nCir. 1987). 1 Forcing a choice between retiring and keep-\n\n\n\n1 The majority relies on Schultz for the proposition that\nthat “where an employee is faced merely with the un-\npleasant alternatives of resigning or being subject to\nremoval for cause, such limited choices do not make the\nresulting resignation an involuntary act.” Id. In that\ncase, we reversed the Board’s finding of lack of jurisdic-\ntion on the grounds that the employee’s retirement was\n\n8 JENKINS v. MSPB\n\n\n\n\ning your benefits or termination and loss of benefits is an\nact of coercion, the very abuse that Congress recognized\nby passing § 7701(j). See Mays, 27 F.3d at 1580. Here, we\nhave lost sight of the inherent right to appeal adverse\nemployment decisions that Congress has afforded to\nfederal employees. See Civil Service Due Process\nAmendments, Pub. L. No. 101-376, 104 Stat. 461, 461\n(1990) (“An Act . . . to grant appeal rights to members of\nthe excepted service affected by adverse personnel ac-\ntions.”). The safeguard hypothesized in Cooper fails to\nprotect against abuses such as the conditional rescission\nof removal offered by the Army. For these reasons, I\nrespectfully dissent.\n\n\n\n\ninvoluntary because the agency threatened removal for an\nimproper basis. Id. at 1136–37. That case has no bearing\non whether an agency’s final removal decision that is\nrescinded in exchange for an employee’s voluntary retire-\nment should escape review under § 7701(j).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4355467/", "author_raw": "REYNA, Circuit Judge, dissenting"}]} | REYNA | TARANTO | WALLACH | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4578214/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Charles T. JENKINS, Jr., Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-02\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n CHARLES T. JENKINS, JR.,\n Petitioner\n\n v.\n\n MERIT SYSTEMS PROTECTION BOARD,\n Respondent\n ______________________\n\n 2017-2193\n ______________________\n\n Petition for review of the Merit Systems Protection\nBoard in No. DA-0752-16-0080-I-2.\n ______________________\n\n Decided: January 2, 2019\n ______________________\n\n AARON BENJAMIN FRUMKIN, Gibson, Dunn & Crutcher\nLLP, Los Angeles, CA, argued for petitioner.\n\n TARA JEAN KILFOYLE, Office of the General Counsel,\nMerit Systems Protection Board, Washington, DC, argued\nfor respondent. Also represented by TRISTAN LEAVITT,\nKATHERINE MICHELLE SMITH; DAVID PEHLKE, Commercial\nLitigation Branch, Civil Division, United States Depart-\nment of Justice, Washington, DC.\n ______________________\n\n Before REYNA, WALLACH, and TARANTO, Circuit Judges.\n\n2 JENKINS v. MSPB\n\n\n\n\n Opinion for the court filed by Circuit Judge WALLACH.\n Dissenting opinion filed by Circuit Judge REYNA.\nWALLACH, Circuit Judge.\n Petitioner Charles T. Jenkins, Jr. seeks review of a\nMerit Systems Protection Board (“MSPB”) final decision\ndismissing his appeal for lack of jurisdiction. See Jenkins\nv. Dep’t of the Army, No. DA-0752-16-0080-I-2, 2017 WL\n1209626 (M.S.P.B. Mar. 31, 2017) (J.A. 1–28). 1 We have\njurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012). We\naffirm.\n BACKGROUND\n For nearly thirty-three years, Mr. Jenkins was em-\nployed by the U.S. Department of the Army (“Army”), and\nprior to his retirement, worked as a Supervisory Army\nCommunity Services (“ACS”) Division Chief. J.A. 71.\nFrom August 2010 to January 2012, Mr. Jenkins continu-\nally failed performance reviews and at one point served a\nthree-day suspension in connection with submitting “an\nACS Information Paper” to a higher command without\nrouting and gaining the necessary approval through his\nfirst-level supervisor. See J.A. 400–06. As a result of his\nreviews, Mr. Jenkins was put on a Performance Im-\nprovement Plan (“PIP”). See J.A. 407–14. After notifying\nMr. Jenkins that he failed his PIP, see J.A. 163, his first-\n\n\n\n 1 An administrative judge issued an initial decision\non March 31, 2017, see J.A. 1–28, which became final\nwhen Mr. Jenkins did not file a petition for review, see\nJ.A. 21; see also 5 C.F.R. § 1201.113 (2014) (providing\n“[t]he initial decision of the judge will become the\n[MSPB]’s final decision [thirty-five] days after issuance”\nunless, inter alia, “any party files a petition for review”).\nTherefore, we refer to the Initial Decision as the MSPB’s\nFinal Decision.\n\nJENKINS v. MSPB 3\n\n\n\nlevel supervisor asked him whether he would be interest-\ned in moving to a nonsupervisory position at the same\ngrade and pay level, J.A. 206. Mr. Jenkins refused.\nJ.A. 119. In February 2012, Mr. Jenkins’s first-level\nsupervisor proposed his removal for unacceptable perfor-\nmance. J.A. 38–46 (Notice of Proposed Removal). After\nreceiving the Notice of Proposed Removal, but before he\nwas officially removed by the Army, Mr. Jenkins sent an\nemail to his first-level supervisor stating that “[e]ffective\n31 March 2012 I will retire.” J.A. 37.\n Mr. Jenkins submitted written responses challenging\nthe basis for his removal, however, after “consider[ation]\nand review[ of his] written reply,” the Army issued a Final\nRemoval Decision informing Mr. Jenkins that he would be\nremoved from service effective April 1, 2012. See\nJ.A. 237–39. That same day, March 21, 2012, the Army\nissued Mr. Jenkins a “Cancellation of Decision on Remov-\nal” stating “[Mr. Jenkins is] scheduled to retire from\nfederal service effective 31 March 2012” and “[i]f [he]\nretire[s] from federal service on 31 March 2012, this\nmemorandum will serve as revocation and cancellation\neffective 31 March 2012.” J.A. 47. Following the Final\nRemoval Decision, Mr. Jenkins indicated on a Standard\nForm-50 (“SF-50”) that he intended to retire pursuant to\nhis previously submitted retirement application, J.A.\n241–43, stating “voluntary retirement effective 31\nMar[ch] [20]12” as his “[r]easons for\n[r]esignation/[r]etirement” J.A. 241. It is undisputed that\nthe “revocation and cancellation . . . of the [Notice of\nProposed Removal]” took effect upon that March 31, 2012\nretirement. J.A. 47 (Cancellation of Decision on Remov-\nal). Subsequently, Mr. Jenkins appealed to the MSPB\nalleging that his retirement was involuntary because the\n\n4 JENKINS v. MSPB\n\n\n\n\nagency “proposed to remove” him if he did not retire.\nJ.A. 31–35. 2\n In March 2017, the MSPB “dismissed [Mr. Jenkins’s\nappeal] for lack of jurisdiction.” J.A. 21. Specifically, the\nMSPB found that it lacked jurisdiction over Mr. Jenkins’s\nchallenge to the Army’s proposed removal because “the\n[Army] rescinded the removal decision upon [Mr. Jen-\nkins]’s retirement” and nothing in the record indicated he\nsought to withdraw his retirement prior to the effective\nremoval date. J.A. 6; see J.A. 336–38 (providing argument\nand evidence, by the Army, that the March 21, 2012\nDecision of Proposed Removal issued “26-days after [Mr.\nJenkins] filed an application of retirement”). The MSPB\nalso found it lacked jurisdiction over his involuntary\nretirement claim because Mr. Jenkins failed to make a\nnon-frivolous claim. J.A. 21.\n DISCUSSION\n Mr. Jenkins contends the MSPB erred by finding it\nlacked jurisdiction over his claim because: (1) “the Army\nissued [the] [F]inal [R]emoval [D]ecision before Mr. Jen-\nkins retired,” Pet’r’s Br. 17 (capitalizations modified); see\nid. at 17–25, and (2) its decision that his retirement was\nvoluntary was not supported by substantial evidence due\nto the fact that his retirement was “based on misinfor-\nmation” and “was obtained through coercion,” id. at 26,\n29; see id. at 25–33. We first discuss the relevant stand-\nards of review and legal standards, and then address each\nof Mr. Jenkins’s arguments.\n\n\n\n 2 When Mr. Jenkins filed his Federal Circuit Rule\n15(c) Statement Concerning Discrimination on July 7,\n2017, he abandoned his formerly asserted discrimination\nclaims. Pet’r’s Fed. Cir. R. 15(c) Statement, ECF No. 10;\nsee Oral Arg. at 12:31–40, http://oralarguments.cafc.\nuscourts.gov/default.aspx?fl=2017-2193.mp3.\n\nJENKINS v. MSPB 5\n\n\n\n I. Standard of Review\n We will uphold a decision of the MSPB unless it is\n“arbitrary, capricious, an abuse of discretion, or otherwise\nnot in accordance with law” or “unsupported by substan-\ntial evidence.” 5 U.S.C. § 7703(c)(1), (3) (2012). We\nreview whether the MSPB has jurisdiction over an appeal\nde novo. Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905,\n909 (Fed. Cir. 2008). “Findings of fact underlying the\n[MSPB]’s jurisdictional decision are reviewed for substan-\ntial evidence.” Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d\n1097, 1101 (Fed. Cir. 2011) (internal quotation marks and\ncitation omitted). “Substantial evidence is more than a\nmere scintilla of evidence, but less than the weight of the\nevidence.” Jones v. Dep’t of Health & Human Servs., 834\nF.3d 1361, 1366 (Fed. Cir. 2016) (internal quotation\nmarks and citations omitted). “The petitioner bears the\nburden of establishing error in the [MSPB]’s decision.”\nHarris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467\n(Fed. Cir. 1998).\n II. The Improper Removal Claim\n A. Legal Standard\n The MSPB’s “jurisdiction is limited to those matters\nover which it has been given jurisdiction by law, rule, or\nregulation.” 5 C.F.R. § 1201.3(a). The petitioner must\nestablish by preponderant evidence that the MSPB has\njurisdiction over his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(A).\nGenerally, the MSPB has jurisdiction over appeals of\nremovals of non-probationary employees, based on unac-\nceptable performance. See 5 C.F.R. § 1201.3(a)(5); 5\nU.S.C. § 4303(e). “If an appealable action is canceled or\nrescinded by an agency, any appeal from that action\nbecomes moot,” thereby depriving the MSPB of jurisdic-\ntion. Cooper v. Dep’t of the Navy, 108 F.3d 324, 326 (Fed.\nCir. 1997).\n\n6 JENKINS v. MSPB\n\n\n\n\nB. The MSPB Did Not Err in Holding It Lacked Jurisdic-\n tion over the Removal Claim\n The MSPB held that, because “[Mr. Jenkins] retired\nbefore the removal action was effected, and the [Army]\nrescinded the removal decision upon [his] retirement,” the\nMSPB lacked jurisdiction over his appeal challenging the\nproposed removal. J.A. 6 (emphasis added). Mr. Jenkins\navers the MSPB has jurisdiction over his appeal because\nhis retirement date was “after the Army issued a final\ndecision to remove him.” Pet’r’s Br. 17 (emphasis added).\nWe disagree with Mr. Jenkins.\n The sequence of retirement and rescission is not con-\ntrolling. Rather, the MSPB lacked jurisdiction because\nthe Army rescinded its removal. The Army proposed\nremoval of Mr. Jenkins on February 16, 2012, J.A. 38, Mr.\nJenkins indicated his intent to retire on February 23,\n2012, J.A. 236, and the Army issued its Final Removal\nDecision on March 21, 2012, J.A. 237–39. However, the\nsame day his retirement went into effect, the Army re-\nscinded the removal decision. J.A. 47 (Cancellation of\nDecision on Removal). The Army removed all references\nto the proposed removal action in Mr. Jenkins’s personnel\nfile, thus eliminating any potential consequences the\nremoval could have had on his retirement. See J.A. 240–\n43 (demonstrating that the Notice of Proposed Removal\nand SF-50 do not reference the removal decision), 333\n(acknowledging the agency evidence and arguments were\nmade under penalty of perjury), 358 (showing a printout\nof a chronological listing of Mr. Jenkins’s SF-50s from\n2010 through 2012). This rescinding of the removal\ndecision mooted Mr. Jenkins’s improper removal claim.\nSee Cooper, 108 F.3d at 326 (explaining, “[i]f an appeala-\nble action is canceled or rescinded by an agency, any\nappeal from that action becomes moot” and that the\npetitioner’s appeal was moot because the agency, inter\nalia, removed “all references to [the removal action] from\n[his] official personnel file” thereby “eliminat[ing] all\n\nJENKINS v. MSPB 7\n\n\n\nconsequences of that action”). Therefore, the MSPB lacked\njurisdiction to hear the appeal.\n Mr. Jenkins’s primary counterargument fails. He\ncontends that his challenge to the removal is appealable\nto the MSPB under 5 U.S.C. § 7701(j) because the MSPB\n“consider[ed] [his] ‘retirement status’” when determining\nwhether it had jurisdiction. Pet’r’s Br. 23. Section 7701(j)\nprovides that the MSPB, in “determining the appealabil-\nity . . . of any case involving a removal from the service,”\nmay not take into account “an individual’s status under\nany retirement system established by or under Federal\nstatute.” 5 U.S.C. § 7701(j) (emphasis added); see Mays v.\nDep’t of Transp., 27 F.3d 1577, 1579 (Fed. Cir. 1994)\n(holding that “[t]he plain language of § 7701(j) means that\nretirement status cannot be taken into account in deter-\nmining the appealability of ‘any case involving a remov-\nal’”). In Mays, we considered § 7701(j) and held that the\nMSPB had jurisdiction over petitioner’s appeal because\nthe petitioner’s retirement was effective the same date as\nher removal and her retirement form stated she “[r]etired\nafter receiving [final] written notice . . . of [the] decision to\nseparate.” 27 F.3d at 1578.\n Mays did not involve a rescission of the removal deci-\nsion being appealed to the MSPB. In contrast, in Cooper,\nwe held that when an agency has “rescinded” an effectu-\nated removal action during the pendency of an appeal,\neliminated “all references to [the removal] action from [a\npetitioner]’s official personnel file,” and “substituted a\nseparation” based on retirement for the removal, the\nappeal of the removal is moot and § 7701(j) is not impli-\ncated. 108 F.3d at 325–26; see id. (determining that,\nbecause “the agency had rescinded his removal[,] the\n[MSPB] did not need to consider [the appellant]’s retire-\nment status to reach its conclusion that his appeal was\n\n8 JENKINS v. MSPB\n\n\n\n\nmoot”). 3 This case is governed by Cooper. Therefore,\n§ 7701(j) does not provide jurisdiction because the case no\nlonger involved a removal. See id. at 326 (finding\n§ 7701(j) did not apply). Because Mr. Jenkins’s case no\nlonger involved a removal, the MSPB did not need to\nconsider Mr. Jenkins’s retirement status in determining\nthat it lacked jurisdiction over the appeal.\n III. The Involuntary Retirement Claim\n A. Legal Standard\n An involuntary retirement is an adverse employment\naction “where an agency imposes the terms of an employ-\n\n\n\n 3 The dissent states that the majority believes this\ncase is unlike Mays because “removing from Mr. Jenkins’s\nfile all the references to [his] removal eliminated ‘all\nconsequences’ of the removal” and that “Mr. Jenkins\nwould not have retired but for his removal.” Dissent\nOp. 6. The dissent, however, fails to recognize that Mays\ndid not involve a rescission of a removal decision being\nappealed to the MSPB. Like Cooper, the MSPB in this\ncase considered the rescission of the removal decision in\nmaking the determination that it lacked jurisdiction over\nthe appeal. See Cooper, 108 F.3d at 326 (explaining, “in\ndeciding that [the] appeal was moot, the [MSPB] merely\nrelied on the fact that the agency had rescinded his re-\nmoval”). Section 7701(j) does not prohibit an employing\nagency from taking an employee’s retirement status into\naccount in deciding whether to cancel a removal decision;\nit only prohibits the MSPB from taking an appellant’s\nretirement status into account in determining whether a\nnon-cancelled removal decision is appealable. See id.\nBecause the MSPB determined the Army rescinded Mr.\nJenkins’s removal decision, as in Cooper, it did not need to\nconsider his retirement status to determine that it lacked\njurisdiction over the appeal. J.A. 6.\n\nJENKINS v. MSPB 9\n\n\n\nee’s resignation, the employee’s circumstances permit no\nalternative but to accept, and those circumstances were\nthe result of improper acts of the agency.” Schultz v. U.S.\nNavy, 810 F.2d 1133, 1136 (Fed. Cir. 1987) (internal\nquotation marks omitted). “The [MSPB] has jurisdiction\nover an involuntary retirement, which is treated as if it\nwere a removal.” Cooper, 108 F.3d at 326. “An employee\nthus may seek reinstatement or back pay as a result of an\ninvoluntary retirement.” Id. There is a presumption that\nan employee retired voluntarily. Staats v. U.S. Postal\nServ., 99 F.3d 1120, 1123 (Fed. Cir. 1996). To overcome\nthis presumption, a petitioner must establish (1) the\nretirement was the product of misinformation or decep-\ntion by the agency; or (2) the retirement was the product\nof coercion by the agency. Terban v. Dep’t of Energy, 216\nF.3d 1021, 1024 (Fed. Cir. 2000); see Staats, 99 F.3d at\n1124 (“[T]he doctrine of coercive involuntariness is a\nnarrow one.”). The test for involuntariness is “an objec-\ntive one” that “considers the totality of the circumstanc-\nes.” Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322,\n1329 (Fed. Cir. 2006) (en banc) (internal quotation marks\nand citation omitted).\n B. Substantial Evidence Supports the MSPB’s Finding\n that Mr. Jenkins’s Retirement Was Voluntary\n The MSPB considered all record evidence related to\nthe voluntariness of Mr. Jenkins’s retirement, see\nJ.A. 14–17 (analyzing, inter alia, the length of time\noffered to improve performance, testimony and written\nrecords regarding performance deficiencies, and various\ncommunications between Mr. Jenkins and his first-level\nsupervisor), and determined that while Mr. Jenkins was\nfaced with the difficult choice of either retiring or oppos-\ning a removal action, this choice did not render his re-\ntirement involuntary because he chose to follow through\nwith his retirement decision, J.A. 20–21. Mr. Jenkins\nargues his retirement was involuntary because it was\nbased on “misinformation” such as “management officials”\n\n10 JENKINS v. MSPB\n\n\n\n\ntelling him that he needed to retire to protect his retire-\nment benefits, Pet’r’s Br. 26, and that it was obtained\nthrough “coercion,” id. at 29. We disagree with Mr. Jen-\nkins.\n Substantial evidence supports the MSPB’s finding\nthat Mr. Jenkins voluntarily retired. First, Mr. Jenkins\nsubmitted personnel forms that indicate that his retire-\nment from the Army was voluntary. Specifically, under\nthe section asking for reasons for retirement it said\n“[v]oluntary retirement.” See J.A. 243; see J.A. 243 (stat-\ning in the SF-50 the reason for retirement is “[v]oluntary\nretirement”).\n Second, Mr. Jenkins’s retirement was not the product\nof misinformation by the agency. The only evidence of\nrecord cited by Mr. Jenkins regarding any alleged misrep-\nresentation is that an unidentified individual told Mr.\nJenkins he should retire “to protect his retirement bene-\nfits.” J.A. 425; see J.A. 425 (providing Mr. Jenkins’s pre-\nhearing submissions). This evidence is insufficient to\nsupport Mr. Jenkins’s position because he never identified\nany individual who made this statement nor did he pro-\nvide any foundation for the alleged statement. See\nJ.A. 425; see also J.A. 18–19 (explaining by the MSPB\nthat Mr. Jenkins admitted he did not receive misinfor-\nmation about the ability to retire from Human Resources);\ncf. Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1573–75\n(Fed. Cir. 1983) (finding involuntary retirement where\npetitioner proved reasonable reliance on a misrepresenta-\ntion made by a specific agency counselor). For the first\ntime on appeal, Mr. Jenkins argues that a notation on his\nfinal Notification of Personnel Action Form says his\nreason for retirement was “to obtain retirement benefits.”\nPet’r’s Br. 27–28. While this notation may demonstrate\nthe Army knew Mr. Jenkins misunderstood the effect a\nremoval would have on his retirement benefits, it does not\nevidence reliance by Mr. Jenkins upon alleged agency\nmisinformation. J.A. 241. Importantly, Mr. Jenkins\n\nJENKINS v. MSPB 11\n\n\n\nprovided no evidence that he desired to retire based on\nthat belief. See J.A. 18–19 (explaining by the MSPB that\nMr. Jenkins provided no “specifics regarding the alleged\nmisrepresentation”); see Pet’r’s Br. 27–28. After he re-\nceived the Notice of Proposed Removal, J.A. 38–46, and\nwas informed of his appeal rights by the Army, J.A. 87, he\nstill elected to retire.\n Third, Mr. Jenkins’s retirement was not caused by co-\nercion. Mr. Jenkins argues that his retirement was the\nproduct of coercion because the Army “imposed the terms\nof [his] retirement” and he had “no [alternative] but to\nretire.” Pet’r’s Br. 30–31. A petitioner can establish his\nretirement was the product of coercion if he proves by\npreponderant evidence that an agency created “working\nconditions so intolerable” that he was “driven to involun-\ntarily . . . retire.” Garcia, 437 F.3d at 1328–29. “[T]o\nestablish involuntariness on the basis of coercion” due to a\nthreatened or proposed adverse action, the employee must\nshow that: (1) he involuntarily accepted the terms “effec-\ntively imposed” by the agency; (2) the circumstances\npresented “no realistic alternative” but to retire; and\n(3) his retirement was the result of “improper acts of the\nagency.” Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341\n(Fed. Cir. 2001). Here, however, Mr. Jenkins has adduced\nno evidence to demonstrate that his working conditions\nwere intolerable. See generally Pet’r’s Br. Instead, Mr.\nJenkins simply had the choice of not retiring and opposing\nthe removal, or retiring. 4 Thus, the MSPB correctly found\n\n\n\n 4 The dissent states that “the Army put Mr. Jenkins\nin precisely the situation of making a forced choice be-\ncause its offer to rescind his removal was conditioned\nupon Mr. Jenkins first retiring.” Dissent Op. 2. In\nSchultz, however, we explained that when “an employee is\nfaced merely with the unpleasant alternatives of resign-\ning or being subject to removal for cause, such limited\n\n12 JENKINS v. MSPB\n\n\n\n\nMr. Jenkins failed to demonstrate that his retirement was\ninvoluntary.\n CONCLUSION\n We have considered Mr. Jenkins’s remaining argu-\nments and find them unpersuasive. Accordingly, the\nFinal Decision of the Merit Systems Protection Board is\n AFFIRMED\n\n\n\n\nchoices do not make the resulting resignation an involun-\ntary act.” 810 F.2d at 1136. Here, the MSPB simply\nrelied on Schultz, in addition to several MSPB cases, in\nholding that the “unpleasant choice” to retire or be re-\nmoved “does not rebut the presumed voluntariness” of the\ndecision to retire. See J.A. 16 (citations omitted). While\nMr. Jenkins argues that his factual situation was differ-\nent because the “rescission was expressly conditioned” on\nhis retirement, Pet’r’s Br. 25, our precedent does not\nsupport such a distinction, Schultz, 810 F.2d at 1136.\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n CHARLES T. JENKINS, JR.,\n Petitioner\n\n v.\n\n MERIT SYSTEMS PROTECTION BOARD,\n Respondent\n ______________________\n\n 2017-2193\n ______________________\n\n Petition for review of the Merit Systems Protection\nBoard in No. DA-0752-16-0080-I-2.\n ______________________\n[END_CASE]",
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4,579,901 | Laura OLIVER, And, Eddie Oliver, Jr., Parents and Legal Representatives of E.O., III, Petitioners-Appellants v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee | Oliver v. Sec'y of Health & Human Servs. | 2019-01-09 | 2017-2540 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n LAURA OLIVER, AND, EDDIE OLIVER, JR.,\n PARENTS AND LEGAL REPRESENTATIVES OF\n E.O., III,\n Petitioners-Appellants\n\n v.\n\n SECRETARY OF HEALTH AND HUMAN\n SERVICES,\n Respondent-Appellee\n ______________________\n\n 2017-2540\n ______________________\n\n Appeal from the United States Court of Federal\nClaims in No. 1:10-vv-00394-EDK, Judge Elaine Kaplan.\n ______________________\n\n ON PETITION FOR PANEL REHEARING AND\n REHEARING EN BANC\n ______________________\n\n CLIFFORD JOHN SHOEMAKER, Shoemaker and Associ-\nates, Vienna, VA, filed a combined petition for panel\nrehearing and rehearing en banc for petitioners-\nappellants.\n\n DANIEL ANTHONY PRINCIPATO, Torts Branch, Civil\nDivision, United States Department of Justice, Washing-\nton, DC, filed a response to the petition for respondent-\n\n2 OLIVER v. HHS\n\n\n\nappellee. Also represented by JOSEPH H. HUNT, C.\nSALVATORE D’ALESSIO, CATHARINE E. REEVES, HEATHER L.\nPEARLMAN.\n ______________________\n\n Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,\n MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,\n HUGHES, and STOLL, Circuit Judges.\n NEWMAN, Circuit Judge, with whom REYNA, Circuit\n Judge, joins, dissents from the denial of the petition for\n rehearing en banc.\nPER CURIAM.\n ORDER\n Appellants Laura Oliver and Eddie Oliver, Jr., par-\nents and legal representatives of E.O., III, filed a com-\nbined petition for panel rehearing and rehearing en banc.\nA response to the petition was invited by the court and\nfiled by the Secretary of Health and Human Services.\nThe petition for rehearing and response were first re-\nferred to the panel that heard the appeal, and thereafter\nreferred to the circuit judges who are in regular active\nservice. A poll was requested, taken, and failed.\n Upon consideration thereof,\n IT IS ORDERED THAT:\n The petition for panel rehearing is denied.\n The petition for rehearing en banc is denied.\n The mandate of the court will issue on January 16,\n2019.\n FOR THE COURT\n\n January 9, 2019 /s/ Peter R. Marksteiner\n Date Peter R. Marksteiner\n Clerk of Court\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n LAURA OLIVER AND EDDIE OLIVER, JR.,\n PARENTS AND LEGAL REPRESENTATIVES OF\n E.O., III,\n Petitioners-Appellants\n\n v.\n\n SECRETARY OF HEALTH AND HUMAN\n SERVICES,\n Respondent-Appellee\n\n ______________________\n\n 2017-2540\n ______________________\n\n Appeal from the United States Court of Federal\nClaims in No. 1:10-vv-00394-EDK, Judge Elaine Kaplan.\n ______________________\n\nNEWMAN, Circuit Judge, with whom REYNA, Circuit", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357154/", "author_raw": "PER CURIAM"}, {"author": "Judge, joins, dissenting", "type": "dissent", "text": "Judge, joins, dissenting from the denial of the petition for\nrehearing en banc.\n I write in dissent, for the court’s ruling conflicts with\nthe terms and the premises of the Vaccine Act. Here,\nbaby Oliver (“E.O.”), within hours of his 6-month well-\nbaby DTaP vaccinations, experienced fever and seizures,\nfollowed by more seizures and encephalopathies and\ndevelopmental injuries. The government’s position is that\nthe Vaccine Act is not available to E.O. because of his\ngenetic makeup. This ruling is legally and scientifically\n\n2 OLIVER v. HHS\n\n\n\nincorrect. It has important implications for national\nvaccine immunization programs, for scientific study now\nsuggests that previously unexplained vaccine injury is\nrelated to genetic makeup. En banc attention is warrant-\ned.\nThe National Childhood Vaccine Injury Act of 1986\n It had long been known that a small percentage of\nchildhood vaccinations have led to grave injury and\npermanent disability, as discussed in the legislative\nrecord:\n Childhood vaccines are essential to maintain the\n health of our society. They have been invaluable\n weapons against the dread diseases that used to\n kill or injure hundreds of thousands of children\n every year: polio, measles, pertussis, diphtheria,\n tetanus, rubella, mumps, and smallpox. But\n while these vaccines have brought the gift of life\n and health to millions, there are a very small\n number of children every year who are injured by\n unpredictable side effects of the vaccines through\n no fault of their own or the vaccine manufactur-\n ers.\n132 Cong. Rec. S17,343–02 (1986) (statement of Sen.\nKennedy). The House Report reiterated the concern for\nunforeseeable injury flowing from compulsory vaccina-\ntions:\n While most of the Nation’s children enjoy greater\n benefit from immunization programs, a small but\n significant number have been gravely injured.\n ....\n . . . But it is not always possible to predict who\n they will be or what reactions they will have. And\n since State law requires that all children be im-\n munized before entering school, most parents\n\nOLIVER v. HHS 3\n\n\n\n have no choice but to risk the chance—small as\n that may be—that their child may be injured from\n a vaccine.\nH.R. Rep. No. 99-908, at 4–6 (1986), as reprinted in 1986\nU.S.C.C.A.N. 6344, 6345–46.\n The legislative record states that about one half of one\npercent of children each year experience vaccine-related\ninjury; 1 and with four million births each year in the\nUnited States, this is about 20,000 vaccine injuries per\nyear. 2 The record referred to the withdrawal of vaccine\nmanufacturers in the United States:\n [A] major vulnerability is the unresolved public\n policy problem of liability for unavoidable injury\n in mass immunization programs. The specter of\n high and uncertain damage awards contributes to\n driving manufacturers out of vaccine produc-\n tion . . . .\nExamination of the Task Force Report on the Vaccine\nPertussis: Before the Comm. on Labor & Human Res.,\n98th Cong. 3 (1983) (statement of Sen. Hawkins) (“S. Hrg.\n98-350”). It was reported that “there is only one pharma-\nceutical manufacturer in the entire United States for 19\ntypes of vaccine products and no U.S. manufacturer of 11\nother vaccine products.” Id. Congress also recognized the\nconcern for children whose “futures [had] been destroyed”\n\n\n 1 To Amend the Public Health Service Act to Provide\nfor the Compensation of Children and Others Who Have\nSustained Vaccine-Related Injury, and for Other Purposes:\nHearing on S. 2117 Before the Comm. on Labor & Human\nRes., 98th Cong. 21 (1984) (“S. Hrg. 98-1060”).\n 2 Joyce A. Martin et al., Births: Final Data for 2017,\n67 National Vital Statistics Reports 1, 3 (2018),\nhttps://www.cdc.gov/nchs/data/nvsr/nvsr67/nvsr67_08-\n508.pdf.\n\n4 OLIVER v. HHS\n\n\n\nby vaccine-related injury and whose “mounting expenses\nmust be met.” H.R. Rep. No. 99–908, at 6 (1986), as\nreprinted in 1986 U.S.C.C.A.N. 6344, 6347.\n Thus the Vaccine Act was developed as a no-fault sys-\ntem to compensate “vaccine-injured persons quickly,\neasily, and with certainty and generosity.” Id. at 3. The\nAct is supported by payments to the Vaccine Injury Com-\npensation Trust Fund, 26 U.S.C. § 9510, funded by a tax\nof “75 cents per dose of any taxable vaccine.” 26 U.S.C.\n§ 4131(b)(1).\n Infant E.O.’s seizures and fever appeared the evening\nof his DTaP vaccinations. The government argues and\nthe court holds that Vaccine Act compensation is not\navailable because E.O. has a genetic mutation that might\ninjure him at some time. This ruling negates the purpose\nof the Vaccine Act, for E.O. was required to be vaccinated\nand he was injured thereby. He is directly within the\nletter and the purpose of the Vaccine Act.\n E.O’s vaccine injury is typical of the vaccine\n injury that necessitated the Vaccine Act\n On April 9, 2009 E.O. received his six-month well-\nbaby check-up. His pediatrician administered the requi-\nsite DTaP vaccine (diphtheria-tetanus-acellular pertus-\nsis). That evening he was observed with seizures and a\nfever, and was taken to the emergency room. The record\ndetails his tragic history of seizures, encephalopathies,\nand developmental disabilities.\n After E.O.’s reaction to the DTaP vaccine, his parents\nobtained an analysis of his DNA. It was found that E.O.\nhas a mutation of the SCN1A gene—a mutation that has\nbeen found to sometimes be associated with an epileptic\ncondition called “Dravet syndrome.” The government’s\nposition is that it is irrelevant whether the vaccine trig-\ngered E.O.’s adverse reactions, for this mutation alone\ncould have led to injury.\n\nOLIVER v. HHS 5\n\n\n\n The government’s theory is not that E.O.’s genetic\nmutation contributed to his injury, for that would invoke\nthe “preexisting condition” provision of the Vaccine Act.\nSee 42 U.S.C. § 300aa-33(4). Rather, the government’s\ntheory is that E.O.’s mutation would itself have caused\nthe injury he experienced; on this reasoning, the govern-\nment argued that the Vaccine Act does not apply to E.O.’s\ninjury. The Chief Special Master and the courts agreed.\n Despite record evidence that 20–30% of persons with\nDravet syndrome do not have the SCN1A mutation, see\nAnne M. McIntosh et al., Effects of Vaccination on Onset\nand Outcome of Dravet Syndrome: A Retrospective Study,\n9(6) Lancet Neurol. 592–98 (2010), my colleagues refused\nto consider the data that over half the persons with the\nSCN1A mutation do not experience Dravet syndrome, for\nthese data were published after the Special Master’s\ndecision. See Valentina Cetica et al., Clinical and Genetic\nFactors Predicting Dravet Syndrome in Infants With\nSCN1A Mutations, 88(11) Neurology 1037 (2017) (report-\ning that “[w]e observed 123 different SCN1A mutations”\nand that they “could not predict with high confidence\nDravet syndrome vs milder phenotypes” and “outcome is\nnot predetermined by genetic factors only.”).\n Nonetheless the government argues, and my col-\nleagues affirm, that E.O. would have been gravely injured\ndue to his SNC1A mutation—that it is his “destiny”—and\nthat it is irrelevant that the DTaP vaccinations initiated\nthe seizures and their consequences. However, this is\nprecisely the event at which the Vaccine Act is aimed, lest\nconcerned parents withhold vaccinations, and concerned\nmanufacturers cease production of vaccines.\n Advances of science provide hope for avoid-\n ing vaccine injury—not grounds for avoiding\n compensation for vaccine injury\n The Vaccine Act and its compensation program are of\nnational importance, and immunizations are increasing.\n\n6 OLIVER v. HHS\n\n\n\nA child born today may receive up to 25 vaccinations by\nthe age of 18 months—three doses of hepatitis B; three\ndoses of rotavirus; three doses of diphtheria, tetanus, and\nacellular pertussis; four doses of influenza type B; four\ndoses of pneumococcal conjugate; three doses of inactivat-\ned poliovirus; one dose of influenza; one dose of measles,\nmumps, and rubella; one dose of varicella; and two doses\nof hepatitis A. 3\n The Vaccine Act places some injuries on a presump-\ntive injury Table, and other injuries require evidence that\nthe subject “sustained, or had significantly aggravated,\nany illness, disability, injury, or condition not set forth in\nthe Vaccine Injury Table but which was caused by a\nvaccine . . . .” 42 U.S.C. § 300aa-11(c)(1)(C)(ii)(I). “Aggra-\nvation” refers to a preexisting condition. See id. at\n§ 300aa-33(4) (“The term ‘significant aggravation’ means\nany change for the worse in a preexisting condition which\nresults in markedly greater disability, pain, or illness\naccompanied by substantial deterioration of health.”).\n The role of genetic knowledge in the vaccine compen-\nsation program requires deeper understanding than the\n“destiny” pejorative that removed E.O. and others from\nthe program despite the direct relation between vaccina-\ntion and injury. Recent years have seen powerful advanc-\nes in knowledge. The Human Genome Project, starting in\n1990, involved scientists around the world in identifying\nand sequencing all three billion base pairs (approximately\n25,000 genes) that constitute the human genome. 4 This\ntook 13 years and about $2.7 billion dollars. 5 Today\n\n\n 3 https://www.aap.org/en-us/Documents/immuniz-\nation-_schedule2018.pdf.\n 4 https://report.nih.gov/NIHfactsheets/View-\nFactSheet. aspx?csid=45.\n 5 https://www.genome.gov/11006943/human-\ngenome-project-completion-frequently-asked-questions/.\n\nOLIVER v. HHS 7\n\n\n\ngenetic analysis can be completed in a few days or hours,\nand mechanization is continually adding speed and reduc-\ning cost.\n With new analytic resources, and the ever-increasing\nimportance of immunizations, many scientific studies\nhave been directed to these aspects. A review states:\n“Just until recently, the idea of genetics influencing the\nresponse to vaccine exposure began to be further ex-\nplored.” John Castiblanco & Juan-Manuel Anaya, Genet-\nics and Vaccines in the Era of Personalized Medicine, 16\nCurrent Genomics 47, 49 (2015). These authors state:\n A vaccine generally improves immunity to a par-\n ticular disease upon administration by inducing\n specific protective and efficient immune responses\n in all of the receiving population. The main\n known factors influencing the observed heteroge-\n neity for immune responses induced by vaccines\n are gender, age, co-morbidity, immune system,\n and genetic background.\nId. at Abstract. And “[t]he effect of the genetic status, in\ndefining the response generated directly or indirectly with\nan innate or adaptative immune response, has been\ndemonstrated across multiple viral vaccines (e.g., small-\npox, influenza, measles, rubella, and mumps).” Id. at 47.\n The scientific literature describes new fields called\n“vaccinomics” and “adversomics,” directed to understand-\ning and predicting how an individual will respond to a\nvaccine, as further summarized by GA Poland et al.,\nPersonalized Vaccinology: A Review, 38 Vaccine 5350,\n(2018). Poland et al. earlier wrote, in Heterogeneity in\nVaccine Immune Response: The Role of Immunogenetics\nand the Emerging Field of Vaccinomics, 82 Clinical\nPharmacol Ther. 653 (2007):\n this new golden age of vaccinology has been\n termed “predictive vaccinology,” which will predict\n\n8 OLIVER v. HHS\n\n\n\n the likelihood of a vaccine response or an adverse\n response to a vaccine, the number of doses needed\n and even whether a vaccine is likely to be of bene-\n fit (i.e., is the individual at risk for the outcome\n for which the vaccine is being administered?).\nId. at Abstract. See also Jennifer A. Whitaker et al.,\nAdversomics: A New Paradigm for Vaccine Safety and\nDesign, 14 Expert Review Vaccines 935 (2015):\n [T]he field of vaccine adversomics is in its infancy.\n At this time, these technologies are not being used\n clinically. The first step in advancing this science\n is to use adversomics research techniques to un-\n derstand the mechanisms behind adverse events\n that have a causal relationship with immuniza-\n tion . . . . The precise mechanisms of adverse reac-\n tions associated with vaccines are not well\n understood. Understanding the molecu-\n lar/genetics/proteomics level (i.e., adversomics) in-\n volvement, specifically how genetics (genomics\n and transcriptomics) impact the development of\n vaccine adverse reactions, may aid in the design of\n newer and safer vaccine candidates.\nId. at 939.\n Rebecca E. Chandler, Harm Caused by Vaccines\nMight Vary Between Individuals, 358 British Medical\nJournal (Online) (2017), refers to:\n A growing number of publications in the literature\n describe links between [adverse events following\n immunization] and individual variation. . . . [in-\n cluding] the discovery of genetic variants associ-\n ated with an increased risk of febrile convulsions\n after the measles, mumps, and rubella and small-\n pox vaccines.\n There’s much more. The government’s theory that the\nmere existence of E.O’s SCN1A mutation doomed him to a\n\nOLIVER v. HHS 9\n\n\n\nlifetime of seizures and disability—although no sign\nappeared until the night of his DTaP vaccination, has\nbeen overtaken by science. The court’s ruling is a misap-\nplication of knowledge and a distortion of the Vaccine Act.\n En banc action is required, to correct our\n precedent in view of advances in knowledge\n I am optimistic that advances in science may reduce\nthe 20,000 new vaccine injuries per year, by providing\npredictability and preventive capability. Meanwhile, the\ncourt has erred in removing vaccine-injured children from\naccess to the Vaccine Act if they are found to have a\ngenetic mutation. Several decisions of this court have\naccepted this flawed premise.\n In Snyder v. Sec’y of Health & Human Servs., 553 F.\nApp’x 994, 1004 (Fed. Cir. 2014), this court held that “the\nevidence supports a finding that the SCN1A gene muta-\ntion was, more likely than not, the sole cause” of the\nseizure disorders that occurred upon vaccination. This\nover-simplification has been discredited, see Cetica, supra.\nUntil legislative attention brings the statute into conform-\nity with advancing science it befalls the court to do our\nbest to get it right.\n In Deribeaux ex rel. Deribeaux v. Sec’y of Health &\nHuman Servs., 717 F.3d 1363, 1368 (Fed. Cir. 2013),\nalthough the infant experienced a prolonged seizure the\nday after the DTaP vaccination, and continued to experi-\nence seizures and convulsions, this court affirmed the\nSpecial Master’s finding that “the SCN1A gene mutation\nwas the sole substantial cause of Deribeaux’s seizure\ndisorder and developmental delays.” However, the wealth\nof scientific knowledge between then and now teaches\nthat a “sole” cause is rare indeed.\n In Stone v. Sec’y of Health & Human Servs., 676 F.3d\n1373 (Fed. Cir. 2012), rehearing denied, 690 F.3d 1380,\n1382 (Fed. Cir. 2012), this court held that a mutation was\n\n10 OLIVER v. HHS\n\n\n\nsolely responsible for the child’s seizures that were initi-\nated by the vaccination.\n In all of these cases, there was a direct cause-and-\neffect relation between vaccination and the seizure re-\nsponse, yet the court held that the vaccination did not\nbring the injury within the Vaccine Act. This is a case of\n“a little knowledge” producing an over-simplification of\nextraordinarily complex relationships, while contravening\nthe purposes of the Vaccine Act: to share the burden of\nvaccine injury, while preserving the development and\nmanufacture of vaccines.\n ***\n The government argued that E.O. would have been\ngravely injured independent of his six-month vaccina-\ntions. This is not only contrary to the statute; it is also\ncontrary to the scientific evidence, for it is conceded that\nE.O.’s DTaP vaccinations triggered an immediate reaction\nof seizures and fever, followed by more seizures, encepha-\nlopathies, and ensuing disability.\n The only difference between this case and a compen-\nsable case was that E.O.’s parents had his DNA analyzed.\nModern science is starting to explain what had previously\nbeen inexplicable. In retrospect, had E.O.’s mutation\nbeen known before his routine six-month vaccination, the\nvaccination might not have occurred. But DNA analysis\nbefore vaccination is not compulsory—vaccination is\ncompulsory.\n We should rehear en banc, to apply the Vaccine Act in\naccordance with its purpose. From the denial of reconsid-\neration, I respectfully dissent.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357154/", "author_raw": "Judge, joins, dissenting"}]} | PROST | NEWMAN | LOURIE | 2 | DYK; MOORE; O'MALLEY; REYNA; WALLACH; TARANTO; CHEN; HUGHES; STOLL | {"PROST": ", Chief", "NEWMAN": ", Circuit", "LOURIE": ", Circuit", "DYK": ", Circuit", "MOORE": ", Circuit", "O'MALLEY": ", Circuit", "REYNA": ", Circuit", "WALLACH": ", Circuit", "TARANTO": ", Circuit", "CHEN": ", Circuit", "HUGHES": ", Circuit", "STOLL": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579901/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Laura OLIVER, And, Eddie Oliver, Jr., Parents and Legal Representatives of E.O., III, Petitioners-Appellants v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent-Appellee\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n LAURA OLIVER, AND, EDDIE OLIVER, JR.,\n PARENTS AND LEGAL REPRESENTATIVES OF\n E.O., III,\n Petitioners-Appellants\n\n v.\n\n SECRETARY OF HEALTH AND HUMAN\n SERVICES,\n Respondent-Appellee\n ______________________\n\n 2017-2540\n ______________________\n\n Appeal from the United States Court of Federal\nClaims in No. 1:10-vv-00394-EDK, Judge Elaine Kaplan.\n ______________________\n\n ON PETITION FOR PANEL REHEARING AND\n REHEARING EN BANC\n ______________________\n\n CLIFFORD JOHN SHOEMAKER, Shoemaker and Associ-\nates, Vienna, VA, filed a combined petition for panel\nrehearing and rehearing en banc for petitioners-\nappellants.\n\n DANIEL ANTHONY PRINCIPATO, Torts Branch, Civil\nDivision, United States Department of Justice, Washing-\nton, DC, filed a response to the petition for respondent-\n\n2 OLIVER v. HHS\n\n\n\nappellee. Also represented by JOSEPH H. HUNT, C.\nSALVATORE D’ALESSIO, CATHARINE E. REEVES, HEATHER L.\nPEARLMAN.\n ______________________\n\n Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,\n MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,\n HUGHES, and STOLL, Circuit Judges.\n NEWMAN, Circuit Judge, with whom REYNA, Circuit\n Judge, joins, dissents from the denial of the petition for\n rehearing en banc.\nPER CURIAM.\n ORDER\n Appellants Laura Oliver and Eddie Oliver, Jr., par-\nents and legal representatives of E.O., III, filed a com-\nbined petition for panel rehearing and rehearing en banc.\nA response to the petition was invited by the court and\nfiled by the Secretary of Health and Human Services.\nThe petition for rehearing and response were first re-\nferred to the panel that heard the appeal, and thereafter\nreferred to the circuit judges who are in regular active\nservice. A poll was requested, taken, and failed.\n Upon consideration thereof,\n IT IS ORDERED THAT:\n The petition for panel rehearing is denied.\n The petition for rehearing en banc is denied.\n The mandate of the court will issue on January 16,\n2019.\n FOR THE COURT\n\n January 9, 2019 /s/ Peter R. Marksteiner\n Date Peter R. Marksteiner\n Clerk of Court\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n LAURA OLIVER AND EDDIE OLIVER, JR.,\n PARENTS AND LEGAL REPRESENTATIVES OF\n E.O., III,\n Petitioners-Appellants\n\n v.\n\n SECRETARY OF HEALTH AND HUMAN\n SERVICES,\n Respondent-Appellee\n\n ______________________\n\n 2017-2540\n ______________________\n\n Appeal from the United States Court of Federal\nClaims in No. 1:10-vv-00394-EDK, Judge Elaine Kaplan.\n ______________________\n\nNEWMAN, Circuit Judge, with whom REYNA, Circuit\n[END_CASE]",
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4,579,932 | Peter TURPING, Dick Cartmell, Philip Isaacs, Greg Brown, John Bongers, and Other Similarly Situated Persons, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee | Turping v. United States | 2019-01-09 | 2018-1005 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Lourie, Chen, Stoll", "parties": "", "opinions": [{"author": "CHEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n PETER TURPING, DICK CARTMELL, PHILIP\n ISAACS, GREG BROWN, JOHN BONGERS, AND\n OTHER SIMILARLY SITUATED PERSONS,\n Plaintiffs-Appellants\n\n v.\n\n UNITED STATES,\n Defendant-Appellee\n ______________________\n\n 2018-1005\n ______________________\n\n Appeal from the United States Court of Federal\nClaims in No. 1:16-cv-00872-SGB, Senior Judge Susan G.\nBraden.\n ______________________\n\n Decided: January 9, 2019\n ______________________\n\n DOUGLAS E. MCKINLEY, JR., Law Office of Douglas E.\nMcKinley, Jr., Richland, WA, argued for plaintiffs-\nappellants.\n\n ALBERT S. IAROSSI, Commercial Litigation Branch,\nCivil Division, United States Department of Justice,\nWashington, DC, argued for defendant-appellee. Also\nrepresented by STEVEN J. GILLINGHAM, ROBERT EDWARD\nKIRSCHMAN, JR., JOSEPH H. HUNT.\n ______________________\n\f2 TURPING v. UNITED STATES\n\n\n\n\n Before LOURIE, CHEN, and STOLL, Circuit Judges.\nCHEN, Circuit Judge.\n Appellants are a group of former employees of Lock-\nheed Martin Services, Inc. (Lockheed) who appeal a U.S.\nCourt of Federal Claims (Claims Court) decision dismiss-\ning their contract claim against the U.S. government\n(Government). Because the Claims Court correctly de-\ntermined that Appellants did not prove that an implied-\nin-fact contract between themselves and the Government\nexists, we affirm the Claims Court’s decision.\n BACKGROUND\n During World War II, the Hanford Nuclear Reserva-\ntion (Hanford) was established by the U.S. Army Corps of\nEngineers (Army Corps) in the state of Washington to\nproduce nuclear material for use in atomic weapons.\nJ.A. 24–25. After the war, Hanford continued to be used\nby the Government for nuclear work, but eventually the\nDepartment of Energy (DOE) assumed responsibility for\nmanaging Hanford. J.A. 25.\n Since 1947, DOE and its predecessors engaged con-\ntractors, whose employees performed work at Hanford.\nJ.A. 24–25. Each time the work performed by one con-\ntractor was transferred to another contractor, the employ-\nees that performed the work would stay the same, and\nthey would typically keep their same pay and benefits,\nincluding retirement benefits. J.A. 28.\n In 1987, DOE awarded a contract moving the man-\nagement and operation of Hanford to a contractor, West-\ninghouse Hanford Company (WHC), and directed WHC to\ncreate the Hanford Multi-Employer Pension Plan (MEPP).\nJ.A. 27, 29. The MEPP was a contract between “Employ-\ners,” defined with specific contractor and subcontractor\nnames including WHC, and “Employees,” who were\nemployed by the Employers. J.A. 201–202. Each time a\n\fTURPING v. UNITED STATES 3\n\n\n\nnew contractor performs work at Hanford, the definition\nof “Employer” in the MEPP adds that new contractor. See\nJ.A. 102. According to the preamble of the MEPP, the\nMEPP was created by the Employers for the benefit of the\nEmployees. J.A. 196. The Government is not listed as a\nparty to the MEPP.\n The MEPP is run by a Plan Administrator, which Ar-\nticle 11 of the MEPP defines as a committee established\nby the Employers. J.A. 248. The Plan Administrator may\nnot amend the MEPP without prior DOE approval and\nmay not take any action that has a financial impact on\nthe MEPP without prior written approval of DOE.\nJ.A. 33. Article 10 requires “[e]ach Employer [to] make\ncontributions to the Plan from time to time as the Plan\nAdministrator shall determine but in at least such\namount as is required by the minimum funding standards\nof federal law applicable to the Plan.” J.A. 248.\n Article 29 of the MEPP, entitled “Terminations for\nTransfer,” requires that employees be able to “receive[] a\nbenefit at Normal Retirement Date which is reflective of\nhis Years of Service on the Hanford Reservation.”\nJ.A. 293. Reference to the Government only appears once\nin the MEPP, and that is in Article 29, where the MEPP\nstates: “A Termination for Transfer means a termination\nfrom one contractor on the Hanford Reservation to anoth-\ner which is determined to be in the best interests of the\ngovernment.” Id.\n On August 6, 1996, DOE announced that the Hanford\nManagement Contract would be transferred from the\ncurrent contractor (WHC) to a new contractor (Fluor\nDaniel Hanford or FDH). J.A. 30. The majority of work-\ners received the same post-retirement benefits when the\n1996 contract changeover occurred. J.A. 38.\n On August 30, 1996, however, some WHC employees\nwere provided with an “Offer Letter” from Lockheed,\nwhich was to be a subcontractor to FDH. J.A. 37. The\n\f4 TURPING v. UNITED STATES\n\n\n\n\nOffer Letter stated: “[i]f your employee benefits for this\nposition are different than the current site benefit pro-\ngram, a summary is enclosed,” but no summary was\nenclosed. Id. The Offer Letter required the WHC em-\nployees to sign it by September 9, 1996, if they wanted to\naccept employment with Lockheed. J.A. 38.\n In September 1996, many former employees of WHC,\nincluding Appellants, accepted employment at Lockheed\nand were informed by Lockheed that, upon their retire-\nment, they would not receive retirement benefits—\nincluding medical benefits, death benefits, and pension\ncompensation—that were previously afforded under the\nMEPP. J.A. 39.\n Despite being told earlier in October 1996 that Appel-\nlants were no longer parties to the MEPP, on October 10,\n1996, Appellants were informed 1 that they would in fact\nremain in the MEPP. J.A. 40. Instead of calculating their\npension benefits based on their total years in service,\nhowever, their benefits would be calculated using the\nhighest five year salary during their employment at\n\n\n 1 Appellants allege throughout their amended com-\nplaint that “the Government” performed certain actions,\nincluding making certain statements to Appellants. See,\ne.g., J.A. 39–41. At times, Appellants also state that the\nGovernment made these statements “acting through the\nMEPP” or “acting through its agent the MEPP.” Id.\nThese allegations as to what the Government told Appel-\nlants, however, fail to reach the “plausible” level required\nby Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive\na motion to dismiss, a complaint must contain sufficient\nfactual matter, accepted as true, to ‘state a claim to relief\nthat is plausible on its face.’”) (quoting Bell Atl. Corp. v.\nTwombly, 550 U.S. 544, 570 (2007)). Moreover, the Gov-\nernment is not a party to the MEPP and therefore cannot\nact “through” the MEPP.\n\fTURPING v. UNITED STATES 5\n\n\n\nHanford (the high-five rule). J.A. 41. This was solidified\nin an amendment to the MEPP, made retroactive to the\nend of September 1996. Id. The Lockheed employees\nwere told that they could not challenge the new changes\nto their benefits until they retired. Id.\n In October 2014, Peter Turping retired from Lockheed\nand notified the Plan Administrator that he intended to\nbegin withdrawing pension benefits from the MEPP.\nJ.A. 42. The Plan Administrator used the high-five rule\nto calculate Mr. Turping’s pension benefits, rather than\ncalculating the benefits using his entire term of service at\nHanford. Id.\n In July 2016, Appellants, including Mr. Turping, filed\na class action lawsuit against the Government under the\nTucker Act, alleging, inter alia, that they had an implied-\nin-fact contract with the Government and that the Gov-\nernment breached that contract when it refused to pro-\nvide Appellants pension benefits based on their total\nyears in service. J.A. 22–52. The Government subse-\nquently filed a motion to dismiss Appellants’ amended\ncomplaint under Rules of the U.S. Court of Federal\nClaims (RCFC) 12(b)(1) and 12(b)(6). J.A. 6. The Claims\nCourt granted the Government’s motion, and Appellants\ntimely appealed.\n We have jurisdiction under 28 U.S.C. § 1295(a)(3).\n STANDARD OF REVIEW\n “This court reviews de novo whether the Court of Fed-\neral Claims possessed jurisdiction and whether the Court\nof Federal Claims properly dismissed for failure to state a\nclaim upon which relief can be granted, as both are ques-\ntions of law.” Wheeler v. United States, 11 F.3d 156, 158\n(Fed. Cir. 1993).\n “Whether a contract exists is a mixed question of law\nand fact.” Cienega Gardens v. United States, 194 F.3d\n1231, 1239 (Fed. Cir. 1998). “We review the trial court’s\n\f6 TURPING v. UNITED STATES\n\n\n\n\nlegal conclusions independently and its findings of fact for\nclear error.” Cal. Fed. Bank, FSB v. United States,\n245 F.3d 1342, 1346 (Fed. Cir. 2001). Since we accept all\nfacts pleaded in the complaint as true at the 12(b)(6)\nstage, the issue of whether a party is in privity of contract\nwith the Government reduces to a question of law, which\nwe review de novo. Cienega Gardens, 194 F.3d at 1239.\n“Contract interpretation itself also is a question of law,\nwhich we review de novo.” Id.\n DISCUSSION\n A. Statute of Limitations\n “Every claim of which the United States Court of Fed-\neral Claims has jurisdiction shall be barred unless the\npetition thereon is filed within six years after such claim\nfirst accrues.” 28 U.S.C. § 2501. “Generally, a claim\nagainst the United States first accrues on the date when\nall the events have occurred which fix the liability of the\nGovernment and entitle the claimant to institute an\naction.” Bowen v. United States, 292 F.3d 1383, 1385\n(Fed. Cir. 2002) (internal quotation marks omitted).\nRepudiation “ripens into a breach prior to the time for\nperformance only if the promisee elects to treat it as\nsuch.” Franconia Assocs. v. United States, 536 U.S. 129,\n143 (2002) (internal quotation marks omitted). “[I]f the\ninjured party instead opts to await performance, the\ncause of action accrues, and the statute of limitations\ncommences to run, from the time fixed for performance\nrather than from the earlier date of repudiation.” Id. at\n144 (internal quotation marks omitted).\n We agree with the Claims Court that performance oc-\ncurred when each participant received his or her benefits,\ni.e., on the participant’s “Normal Retirement Date.” See\nJ.A. 182. Because Mr. Turping did not retire until 2014,\nwhich is fewer than 6 years before he filed this lawsuit,\nAppellants’ contract claims are not barred by the statute\nof limitations. See J.A. 5.\n\fTURPING v. UNITED STATES 7\n\n\n\n The Government argues that any repudiation here\nwas not wholly anticipatory because Appellants allege\nthat the Government breached multiple provisions of the\ncontract, and therefore the statute of limitations should\nhave started running immediately upon the Government’s\nfirst breach of the MEPP, which took place in 1996 or\n1997. Appellee Br. at 36–40 (citing Kinsey v. United\nStates, 852 F.2d 556, 558 (Fed. Cir. 1988)). The Govern-\nment then cites to specific facts in the amended complaint\n(e.g., that the Government refused to allow Appellants to\nwithdraw their pensions, in violation of MEPP Article 26\nand federal statute) that Appellants could have cited in\nsupport of an allegation that the Government breached\nthe MEPP. Id. at 37–38.\n But Appellants did not bring an action against the\nGovernment’s alleged breach of Article 26 or its alleged\nfederal law violations. Accordingly, these instances of\npotential contractual nonperformance are not relevant to\nthe analysis. We must focus on the claim that is in front\nof us in this appeal, and that is Appellants’ allegation that\nthe Government breached its implied-in-fact contract, the\nperformance of which took place at retirement.\n B. Implied-in-Fact Contract\n The Tucker Act provides the Claims Court with juris-\ndiction to hear claims against the United States that are\nfounded upon, among other things, an express or implied\ncontract with the United States. 28 U.S.C. § 1491(a)(1).\n“An implied-in-fact contract is one founded upon a meet-\ning of minds and is inferred, as a fact, from the conduct of\nthe parties showing, in the light of the surrounding cir-\ncumstances, their tacit understanding.” Hanlin v. United\nStates, 316 F.3d 1325, 1328 (Fed. Cir. 2003). “[T]he\nrequirements for an implied-in-fact contract are the same\nas for an express contract; only the nature of the evidence\ndiffers.” Id. An implied-in-fact contract with the Gov-\nernment requires proof of (1) mutuality of intent, (2)\n\f8 TURPING v. UNITED STATES\n\n\n\n\nconsideration, (3) an unambiguous offer and acceptance,\nand (4) “actual authority” on the part of the Government’s\nrepresentative to bind the Government in contract. Id.\nPlaintiffs have the burden to prove the existence of an\nimplied-in-fact contract. Id.\n “As a threshold condition for contract formation, there\nmust be an objective manifestation of voluntary, mutual\nassent.” Anderson v. United States, 344 F.3d 1343, 1353\n(Fed. Cir. 2003) (citing Restatement (Second) of Contracts\n§ 18 (1981)). “To satisfy its burden to prove such a mutu-\nality of intent, a plaintiff must show, by objective evi-\ndence, the existence of an offer and a reciprocal\nacceptance.” Id.\n Appellants have not met their burden of proving that\nmutuality of intent between the Government and Lock-\nheed’s employees exists. Appellants argue that “[t]he\ngovernment made two promises to the Hanford workers”\nwhen the MEPP was formed: (1) an implicit promise that\nthe government would provide the funds to meet the\npension obligations set forth in the MEPP; and (2) an\nexplicit promise in Article 29 of the MEPP to workers that\nwhen they retire from Hanford, they will receive credit in\nthe calculation of their pensions for all their years work-\ning at Hanford, even if the Government changed contrac-\ntors. Appellants Op. Br. at 7–8.\n But nothing in the MEPP indicates intent by the Gov-\nernment to be in privity of contract with Lockheed’s\nemployees. Rather, the MEPP only evidences a contrac-\ntual relationship between Lockheed and its employees.\nNotably, the MEPP does not list the Government as a\nparty to the contract. Rather, the MEPP states that it\nwas created by “Employers” for the benefit of their Em-\nployees. J.A. 197. Appellants do not dispute that the\n“Employers” referenced in the MEPP do not include the\nGovernment, but rather refer to contractors and subcon-\ntractors such as Lockheed. See J.A. 201–202. The MEPP\n\fTURPING v. UNITED STATES 9\n\n\n\nalso specifies that the Plan Administrator, established by\nthe Employers, is the entity that funds the plan, not the\nGovernment. J.A. 248. And the MEPP places responsibil-\nity for benefits determinations into the hands of the Plan\nAdministrator, not the Government. J.A. 293.\n “It is a hornbook rule that, under ordinary govern-\nment prime contracts, subcontractors do not have stand-\ning to sue the government under the Tucker Act,\n28 U.S.C. § 1491 . . . .” Erickson Air Crane Co. of Wash. v.\nUnited States, 731 F.2d 810, 813 (Fed. Cir. 1984). “The\ngovernment consents to be sued only by those with whom\nit has privity of contract, which it does not have with\nsubcontractors.” Id. In two-tiered contract schemes, the\nGovernment’s obligations are directed to the contractor,\nwith whom it shares a contract, and not the subcontrac-\ntor, with whom it shares no direct contractual relation-\nship. Cienega Gardens, 194 F.3d at 1245. “Aggrieved\nsubcontractors have the option of enforcing their subcon-\ntract rights against the prime contractor in appropriate\nproceedings, or of prosecuting a claim against the gov-\nernment through and in right of the prime contractor's\ncontract, and with the prime contractor’s consent and\ncooperation.” Erickson, 731 F.2d at 813. Employees are\ntreated as subcontractors for the purposes of this rule.\nUnited States v. Munsey Trust Co. of D.C., 332 U.S. 234,\n241 (1947); see also Bolin v. United States, 221 Ct. Cl. 947,\n948 (1979). Absent any indicia in the MEPP or other\nevidence proffered by Appellants of the Government’s\nspecific intent to be contractually obligated to Lockheed’s\nemployees, we find that privity of contract between Appel-\nlants and the Government does not exist.\n Appellants’ argument that the Government “unilater-\nally forced the Hanford contractors and their employees to\nparticipate in the MEPP,” and therefore the Government\nintended to be bound, is unavailing. Appellants Op. Br.\nat 32–33. The same is true for Appellants’ focus on the\nGovernment’s alleged “control” in the creation and admin-\n\f10 TURPING v. UNITED STATES\n\n\n\n\nistration of the MEPP. Id. at 6. Our case law has made\nclear that the “degree of [government] involvement with a\nproject does not create privity [between the government\nand a subcontractor] so as to allow suit against the gov-\nernment.” Cienega Gardens, 194 F.3d at 1245; see also id.\nat 1244–45 (“That the Federal Government has intimate\ncontrol over a project, including prior approval of plans\nand costs, does not establish liability here for claims by a\ncontractor [whose contract is only with a third party].”)\n(quoting Marshall N. Dana Const., Inc. v. United States,\n229 Ct. Cl. 862, 863 (1982)). “Nor does this degree of\ninvolvement indicate an implied-in-fact contract enforcea-\nble against the United States.” Dana Const., 229 Ct. Cl.\nat 863.\n In Dana Construction, a construction contractor con-\ntracted with an Indian Housing Authority (IHA) that\nreceived federal funds from the U.S. Department of Hous-\ning and Urban Development (HUD) to build a low-income\nhousing project. Id. at 862. The Court of Claims deter-\nmined that the construction contractor could not assert a\nclaim for breach of contract against HUD because the\nconstruction contractor’s privity of contract was with the\nIHA, not HUD. Id. at 863. The Court of Claims empha-\nsized that, “[b]y funding and regulating programs de-\nsigned for the public good the U.S. is acting in its role as a\nsovereign and the moneys promised . . . do not establish\nany contractual obligation, express or implied, on the part\nof the United States.” Id. at 864.\n The same principle applies in this case. The Govern-\nment funds Lockheed and other Employers to manage\nHanford, but there is no evidence that the Government\nintended to be contractually obligated to Lockheed’s or\nother Employers’ employees, either through the MEPP or\nby other means. Without this mutuality of intent, Appel-\nlants fail to meet their burden of proving that an implied-\n\fTURPING v. UNITED STATES 11\n\n\n\nin-fact contract exists between the Government and\nLockheed’s employees. 2\n Because we determine no mutuality of intent exists,\nwe do not reach the question of whether the other re-\nquired elements of an implied-in-fact contract exist in this\ncase. We have reviewed Appellants’ other arguments, but\nfind them unpersuasive. Accordingly, we affirm the\nClaims Court’s decision finding that no implied-in-fact\ncontract exists.\n AFFIRMED\n\n\n\n\n 2 Appellants argue that WHC acted as the Govern-\nment’s “agent” in drafting Article 29 of the MEPP, which\nprovided for Hanford workers to receive benefits reflective\nof their total years of service. Appellants Op. Br. at 54;\nJ.A. 293. Appellants do not plead sufficient plausible\nfacts to support this agency argument. Iqbal, 556 U.S.\nat 678. Likewise, Appellants cannot support their broad\nallegation that only the Government—a non-party to the\nMEPP—had the authority to “enforce” Article 29 and\ncompel subcontractors to remain in the MEPP. Appel-\nlants Op. Br. at 9–10; see Iqbal, 556 U.S. at 678.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357185/", "author_raw": "CHEN, Circuit Judge."}]} | LOURIE | CHEN | STOLL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579932/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Peter TURPING, Dick Cartmell, Philip Isaacs, Greg Brown, John Bongers, and Other Similarly Situated Persons, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n PETER TURPING, DICK CARTMELL, PHILIP\n ISAACS, GREG BROWN, JOHN BONGERS, AND\n OTHER SIMILARLY SITUATED PERSONS,\n Plaintiffs-Appellants\n\n v.\n\n UNITED STATES,\n Defendant-Appellee\n ______________________\n\n 2018-1005\n ______________________\n\n Appeal from the United States Court of Federal\nClaims in No. 1:16-cv-00872-SGB, Senior Judge Susan G.\nBraden.\n ______________________\n\n Decided: January 9, 2019\n ______________________\n\n DOUGLAS E. MCKINLEY, JR., Law Office of Douglas E.\nMcKinley, Jr., Richland, WA, argued for plaintiffs-\nappellants.\n\n ALBERT S. IAROSSI, Commercial Litigation Branch,\nCivil Division, United States Department of Justice,\nWashington, DC, argued for defendant-appellee. Also\nrepresented by STEVEN J. GILLINGHAM, ROBERT EDWARD\nKIRSCHMAN, JR., JOSEPH H. HUNT.\n ______________________\n\f2 TURPING v. UNITED STATES\n\n\n\n\n Before LOURIE, CHEN, and STOLL, Circuit Judges.\nCHEN, Circuit Judge.\n Appellants are a group of former employees of Lock-\nheed Martin Services, Inc. (Lockheed) who appeal a U.S.\nCourt of Federal Claims (Claims Court) decision dismiss-\ning their contract claim against the U.S. government\n(Government). Because the Claims Court correctly de-\ntermined that Appellants did not prove that an implied-\nin-fact contract between themselves and the Government\nexists, we affirm the Claims Court’s decision.\n BACKGROUND\n During World War II, the Hanford Nuclear Reserva-\ntion (Hanford) was established by the U.S. Army Corps of\nEngineers (Army Corps) in the state of Washington to\nproduce nuclear material for use in atomic weapons.\nJ.A. 24–25. After the war, Hanford continued to be used\nby the Government for nuclear work, but eventually the\nDepartment of Energy (DOE) assumed responsibility for\nmanaging Hanford. J.A. 25.\n Since 1947, DOE and its predecessors engaged con-\ntractors, whose employees performed work at Hanford.\nJ.A. 24–25. Each time the work performed by one con-\ntractor was transferred to another contractor, the employ-\nees that performed the work would stay the same, and\nthey would typically keep their same pay and benefits,\nincluding retirement benefits. J.A. 28.\n In 1987, DOE awarded a contract moving the man-\nagement and operation of Hanford to a contractor, West-\ninghouse Hanford Company (WHC), and directed WHC to\ncreate the Hanford Multi-Employer Pension Plan (MEPP).\nJ.A. 27, 29. The MEPP was a contract between “Employ-\ners,” defined with specific contractor and subcontractor\nnames including WHC, and “Employees,” who were\nemployed by the Employers. J.A. 201–202. Each time a\n\fTURPING v. UNITED STATES 3\n\n\n\nnew contractor performs work at Hanford, the definition\nof “Employer” in the MEPP adds that new contractor. See\nJ.A. 102. According to the preamble of the MEPP, the\nMEPP was created by the Employers for the benefit of the\nEmployees. J.A. 196. The Government is not listed as a\nparty to the MEPP.\n The MEPP is run by a Plan Administrator, which Ar-\nticle 11 of the MEPP defines as a committee established\nby the Employers. J.A. 248. The Plan Administrator may\nnot amend the MEPP without prior DOE approval and\nmay not take any action that has a financial impact on\nthe MEPP without prior written approval of DOE.\nJ.A. 33. Article 10 requires “[e]ach Employer [to] make\ncontributions to the Plan from time to time as the Plan\nAdministrator shall determine but in at least such\namount as is required by the minimum funding standards\nof federal law applicable to the Plan.” J.A. 248.\n Article 29 of the MEPP, entitled “Terminations for\nTransfer,” requires that employees be able to “receive[] a\nbenefit at Normal Retirement Date which is reflective of\nhis Years of Service on the Hanford Reservation.”\nJ.A. 293. Reference to the Government only appears once\nin the MEPP, and that is in Article 29, where the MEPP\nstates: “A Termination for Transfer means a termination\nfrom one contractor on the Hanford Reservation to anoth-\ner which is determined to be in the best interests of the\ngovernment.” Id.\n On August 6, 1996, DOE announced that the Hanford\nManagement Contract would be transferred from the\ncurrent contractor (WHC) to a new contractor (Fluor\nDaniel Hanford or FDH). J.A. 30. The majority of work-\ners received the same post-retirement benefits when the\n1996 contract changeover occurred. J.A. 38.\n On August 30, 1996, however, some WHC employees\nwere provided with an “Offer Letter” from Lockheed,\nwhich was to be a subcontractor to FDH. J.A. 37. The\n\f4 TURPING v. UNITED STATES\n\n\n\n\nOffer Letter stated: “[i]f your employee benefits for this\nposition are different than the current site benefit pro-\ngram, a summary is enclosed,” but no summary was\nenclosed. Id. The Offer Letter required the WHC em-\nployees to sign it by September 9, 1996, if they wanted to\naccept employment with Lockheed. J.A. 38.\n In September 1996, many former employees of WHC,\nincluding Appellants, accepted employment at Lockheed\nand were informed by Lockheed that, upon their retire-\nment, they would not receive retirement benefits—\nincluding medical benefits, death benefits, and pension\ncompensation—that were previously afforded under the\nMEPP. J.A. 39.\n Despite being told earlier in October 1996 that Appel-\nlants were no longer parties to the MEPP, on October 10,\n1996, Appellants were informed 1 that they would in fact\nremain in the MEPP. J.A. 40. Instead of calculating their\npension benefits based on their total years in service,\nhowever, their benefits would be calculated using the\nhighest five year salary during their employment at\n\n\n 1 Appellants allege throughout their amended com-\nplaint that “the Government” performed certain actions,\nincluding making certain statements to Appellants. See,\ne.g., J.A. 39–41. At times, Appellants also state that the\nGovernment made these statements “acting through the\nMEPP” or “acting through its agent the MEPP.” Id.\nThese allegations as to what the Government told Appel-\nlants, however, fail to reach the “plausible” level required\nby Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive\na motion to dismiss, a complaint must contain sufficient\nfactual matter, accepted as true, to ‘state a claim to relief\nthat is plausible on its face.’”) (quoting Bell Atl. Corp. v.\nTwombly, 550 U.S. 544, 570 (2007)). Moreover, the Gov-\nernment is not a party to the MEPP and therefore cannot\nact “through” the MEPP.\n\fTURPING v. UNITED STATES 5\n\n\n\nHanford (the high-five rule). J.A. 41. This was solidified\nin an amendment to the MEPP, made retroactive to the\nend of September 1996. Id. The Lockheed employees\nwere told that they could not challenge the new changes\nto their benefits until they retired. Id.\n In October 2014, Peter Turping retired from Lockheed\nand notified the Plan Administrator that he intended to\nbegin withdrawing pension benefits from the MEPP.\nJ.A. 42. The Plan Administrator used the high-five rule\nto calculate Mr. Turping’s pension benefits, rather than\ncalculating the benefits using his entire term of service at\nHanford. Id.\n In July 2016, Appellants, including Mr. Turping, filed\na class action lawsuit against the Government under the\nTucker Act, alleging, inter alia, that they had an implied-\nin-fact contract with the Government and that the Gov-\nernment breached that contract when it refused to pro-\nvide Appellants pension benefits based on their total\nyears in service. J.A. 22–52. The Government subse-\nquently filed a motion to dismiss Appellants’ amended\ncomplaint under Rules of the U.S. Court of Federal\nClaims (RCFC) 12(b)(1) and 12(b)(6). J.A. 6. The Claims\nCourt granted the Government’s motion, and Appellants\ntimely appealed.\n We have jurisdiction under 28 U.S.C. § 1295(a)(3).\n STANDARD OF REVIEW\n “This court reviews de novo whether the Court of Fed-\neral Claims possessed jurisdiction and whether the Court\nof Federal Claims properly dismissed for failure to state a\nclaim upon which relief can be granted, as both are ques-\ntions of law.” Wheeler v. United States, 11 F.3d 156, 158\n(Fed. Cir. 1993).\n “Whether a contract exists is a mixed question of law\nand fact.” Cienega Gardens v. United States, 194 F.3d\n1231, 1239 (Fed. Cir. 1998). “We review the trial court’s\n\f6 TURPING v. UNITED STATES\n\n\n\n\nlegal conclusions independently and its findings of fact for\nclear error.” Cal. Fed. Bank, FSB v. United States,\n245 F.3d 1342, 1346 (Fed. Cir. 2001). Since we accept all\nfacts pleaded in the complaint as true at the 12(b)(6)\nstage, the issue of whether a party is in privity of contract\nwith the Government reduces to a question of law, which\nwe review de novo. Cienega Gardens, 194 F.3d at 1239.\n“Contract interpretation itself also is a question of law,\nwhich we review de novo.” Id.\n DISCUSSION\n A. Statute of Limitations\n “Every claim of which the United States Court of Fed-\neral Claims has jurisdiction shall be barred unless the\npetition thereon is filed within six years after such claim\nfirst accrues.” 28 U.S.C. § 2501. “Generally, a claim\nagainst the United States first accrues on the date when\nall the events have occurred which fix the liability of the\nGovernment and entitle the claimant to institute an\naction.” Bowen v. United States, 292 F.3d 1383, 1385\n(Fed. Cir. 2002) (internal quotation marks omitted).\nRepudiation “ripens into a breach prior to the time for\nperformance only if the promisee elects to treat it as\nsuch.” Franconia Assocs. v. United States, 536 U.S. 129,\n143 (2002) (internal quotation marks omitted). “[I]f the\ninjured party instead opts to await performance, the\ncause of action accrues, and the statute of limitations\ncommences to run, from the time fixed for performance\nrather than from the earlier date of repudiation.” Id. at\n144 (internal quotation marks omitted).\n We agree with the Claims Court that performance oc-\ncurred when each participant received his or her benefits,\ni.e., on the participant’s “Normal Retirement Date.” See\nJ.A. 182. Because Mr. Turping did not retire until 2014,\nwhich is fewer than 6 years before he filed this lawsuit,\nAppellants’ contract claims are not barred by the statute\nof limitations. See J.A. 5.\n\fTURPING v. UNITED STATES 7\n\n\n\n The Government argues that any repudiation here\nwas not wholly anticipatory because Appellants allege\nthat the Government breached multiple provisions of the\ncontract, and therefore the statute of limitations should\nhave started running immediately upon the Government’s\nfirst breach of the MEPP, which took place in 1996 or\n1997. Appellee Br. at 36–40 (citing Kinsey v. United\nStates, 852 F.2d 556, 558 (Fed. Cir. 1988)). The Govern-\nment then cites to specific facts in the amended complaint\n(e.g., that the Government refused to allow Appellants to\nwithdraw their pensions, in violation of MEPP Article 26\nand federal statute) that Appellants could have cited in\nsupport of an allegation that the Government breached\nthe MEPP. Id. at 37–38.\n But Appellants did not bring an action against the\nGovernment’s alleged breach of Article 26 or its alleged\nfederal law violations. Accordingly, these instances of\npotential contractual nonperformance are not relevant to\nthe analysis. We must focus on the claim that is in front\nof us in this appeal, and that is Appellants’ allegation that\nthe Government breached its implied-in-fact contract, the\nperformance of which took place at retirement.\n B. Implied-in-Fact Contract\n The Tucker Act provides the Claims Court with juris-\ndiction to hear claims against the United States that are\nfounded upon, among other things, an express or implied\ncontract with the United States. 28 U.S.C. § 1491(a)(1).\n“An implied-in-fact contract is one founded upon a meet-\ning of minds and is inferred, as a fact, from the conduct of\nthe parties showing, in the light of the surrounding cir-\ncumstances, their tacit understanding.” Hanlin v. United\nStates, 316 F.3d 1325, 1328 (Fed. Cir. 2003). “[T]he\nrequirements for an implied-in-fact contract are the same\nas for an express contract; only the nature of the evidence\ndiffers.” Id. An implied-in-fact contract with the Gov-\nernment requires proof of (1) mutuality of intent, (2)\n\f8 TURPING v. UNITED STATES\n\n\n\n\nconsideration, (3) an unambiguous offer and acceptance,\nand (4) “actual authority” on the part of the Government’s\nrepresentative to bind the Government in contract. Id.\nPlaintiffs have the burden to prove the existence of an\nimplied-in-fact contract. Id.\n “As a threshold condition for contract formation, there\nmust be an objective manifestation of voluntary, mutual\nassent.” Anderson v. United States, 344 F.3d 1343, 1353\n(Fed. Cir. 2003) (citing Restatement (Second) of Contracts\n§ 18 (1981)). “To satisfy its burden to prove such a mutu-\nality of intent, a plaintiff must show, by objective evi-\ndence, the existence of an offer and a reciprocal\nacceptance.” Id.\n Appellants have not met their burden of proving that\nmutuality of intent between the Government and Lock-\nheed’s employees exists. Appellants argue that “[t]he\ngovernment made two promises to the Hanford workers”\nwhen the MEPP was formed: (1) an implicit promise that\nthe government would provide the funds to meet the\npension obligations set forth in the MEPP; and (2) an\nexplicit promise in Article 29 of the MEPP to workers that\nwhen they retire from Hanford, they will receive credit in\nthe calculation of their pensions for all their years work-\ning at Hanford, even if the Government changed contrac-\ntors. Appellants Op. Br. at 7–8.\n But nothing in the MEPP indicates intent by the Gov-\nernment to be in privity of contract with Lockheed’s\nemployees. Rather, the MEPP only evidences a contrac-\ntual relationship between Lockheed and its employees.\nNotably, the MEPP does not list the Government as a\nparty to the contract. Rather, the MEPP states that it\nwas created by “Employers” for the benefit of their Em-\nployees. J.A. 197. Appellants do not dispute that the\n“Employers” referenced in the MEPP do not include the\nGovernment, but rather refer to contractors and subcon-\ntractors such as Lockheed. See J.A. 201–202. The MEPP\n\fTURPING v. UNITED STATES 9\n\n\n\nalso specifies that the Plan Administrator, established by\nthe Employers, is the entity that funds the plan, not the\nGovernment. J.A. 248. And the MEPP places responsibil-\nity for benefits determinations into the hands of the Plan\nAdministrator, not the Government. J.A. 293.\n “It is a hornbook rule that, under ordinary govern-\nment prime contracts, subcontractors do not have stand-\ning to sue the government under the Tucker Act,\n28 U.S.C. § 1491 . . . .” Erickson Air Crane Co. of Wash. v.\nUnited States, 731 F.2d 810, 813 (Fed. Cir. 1984). “The\ngovernment consents to be sued only by those with whom\nit has privity of contract, which it does not have with\nsubcontractors.” Id. In two-tiered contract schemes, the\nGovernment’s obligations are directed to the contractor,\nwith whom it shares a contract, and not the subcontrac-\ntor, with whom it shares no direct contractual relation-\nship. Cienega Gardens, 194 F.3d at 1245. “Aggrieved\nsubcontractors have the option of enforcing their subcon-\ntract rights against the prime contractor in appropriate\nproceedings, or of prosecuting a claim against the gov-\nernment through and in right of the prime contractor's\ncontract, and with the prime contractor’s consent and\ncooperation.” Erickson, 731 F.2d at 813. Employees are\ntreated as subcontractors for the purposes of this rule.\nUnited States v. Munsey Trust Co. of D.C., 332 U.S. 234,\n241 (1947); see also Bolin v. United States, 221 Ct. Cl. 947,\n948 (1979). Absent any indicia in the MEPP or other\nevidence proffered by Appellants of the Government’s\nspecific intent to be contractually obligated to Lockheed’s\nemployees, we find that privity of contract between Appel-\nlants and the Government does not exist.\n Appellants’ argument that the Government “unilater-\nally forced the Hanford contractors and their employees to\nparticipate in the MEPP,” and therefore the Government\nintended to be bound, is unavailing. Appellants Op. Br.\nat 32–33. The same is true for Appellants’ focus on the\nGovernment’s alleged “control” in the creation and admin-\n\f10 TURPING v. UNITED STATES\n\n\n\n\nistration of the MEPP. Id. at 6. Our case law has made\nclear that the “degree of [government] involvement with a\nproject does not create privity [between the government\nand a subcontractor] so as to allow suit against the gov-\nernment.” Cienega Gardens, 194 F.3d at 1245; see also id.\nat 1244–45 (“That the Federal Government has intimate\ncontrol over a project, including prior approval of plans\nand costs, does not establish liability here for claims by a\ncontractor [whose contract is only with a third party].”)\n(quoting Marshall N. Dana Const., Inc. v. United States,\n229 Ct. Cl. 862, 863 (1982)). “Nor does this degree of\ninvolvement indicate an implied-in-fact contract enforcea-\nble against the United States.” Dana Const., 229 Ct. Cl.\nat 863.\n In Dana Construction, a construction contractor con-\ntracted with an Indian Housing Authority (IHA) that\nreceived federal funds from the U.S. Department of Hous-\ning and Urban Development (HUD) to build a low-income\nhousing project. Id. at 862. The Court of Claims deter-\nmined that the construction contractor could not assert a\nclaim for breach of contract against HUD because the\nconstruction contractor’s privity of contract was with the\nIHA, not HUD. Id. at 863. The Court of Claims empha-\nsized that, “[b]y funding and regulating programs de-\nsigned for the public good the U.S. is acting in its role as a\nsovereign and the moneys promised . . . do not establish\nany contractual obligation, express or implied, on the part\nof the United States.” Id. at 864.\n The same principle applies in this case. The Govern-\nment funds Lockheed and other Employers to manage\nHanford, but there is no evidence that the Government\nintended to be contractually obligated to Lockheed’s or\nother Employers’ employees, either through the MEPP or\nby other means. Without this mutuality of intent, Appel-\nlants fail to meet their burden of proving that an implied-\n\fTURPING v. UNITED STATES 11\n\n\n\nin-fact contract exists between the Government and\nLockheed’s employees. 2\n Because we determine no mutuality of intent exists,\nwe do not reach the question of whether the other re-\nquired elements of an implied-in-fact contract exist in this\ncase. We have reviewed Appellants’ other arguments, but\nfind them unpersuasive. Accordingly, we affirm the\nClaims Court’s decision finding that no implied-in-fact\ncontract exists.\n AFFIRMED\n\n\n\n\n 2 Appellants argue that WHC acted as the Govern-\nment’s “agent” in drafting Article 29 of the MEPP, which\nprovided for Hanford workers to receive benefits reflective\nof their total years of service. Appellants Op. Br. at 54;\nJ.A. 293. Appellants do not plead sufficient plausible\nfacts to support this agency argument. Iqbal, 556 U.S.\nat 678. Likewise, Appellants cannot support their broad\nallegation that only the Government—a non-party to the\nMEPP—had the authority to “enforce” Article 29 and\ncompel subcontractors to remain in the MEPP. Appel-\nlants Op. Br. at 9–10; see Iqbal, 556 U.S. at 678.\n[END_CASE]",
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4,579,935 | Ac Technologies S.A. v. amazon.com, Inc. | 2019-01-09 | 18-1433 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before MOORE, SCHALL, and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "STOLL, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n AC TECHNOLOGIES S.A.,\n Appellant\n\n v.\n\n AMAZON.COM, INC., BLIZZARD\n ENTERTAINMENT, INC.,\n Appellees\n ______________________\n\n 2018-1433\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2015-\n01802.\n ______________________\n\n Decided: January 9, 2019\n ______________________\n\n MINGHUI YANG, Hardy Parrish Yang, LLP, Austin,\nTX, argued for appellant. Also represented by VICTOR G.\nHARDY; ANDREW DINOVO, NICOLE E. GLAUSER, DiNovo,\nPrice, Ellwanger & Hardy LLP.\n\n DANIEL T. SHVODIAN, Perkins Coie, LLP, Palo Alto,\nCA, argued for appellees. Also represented by\nCHRISTOPHER LEE KELLEY, WING LIANG, VICTORIA Q.\nSMITH; DAN L. BAGATELL, Hanover, NH.\n ______________________\n\f2 AC TECHS. v. AMAZON.COM\n\n\n\n\n Before MOORE, SCHALL, and STOLL, Circuit Judges.\nSTOLL, Circuit Judge.\n The Patent Trial and Appeal Board issued a final\nwritten decision ruling certain claims of AC Technologies\nS.A.’s U.S. Patent No. 7,904,680 unpatentable. On recon-\nsideration, it invalidated the remaining claims based on a\nground of unpatentability raised by Amazon.com, Inc. and\nBlizzard Entertainment, Inc. (collectively, “Amazon”) in\ntheir petition but not addressed in the final written\ndecision. AC appeals, arguing that the Board exceeded its\nauthority and deprived it of fair process by belatedly\nconsidering this ground.\n We disagree. Precedent mandates that the Board\nconsider all grounds of unpatentability raised in an\ninstituted petition. The Board complied with due process,\nand AC does not persuade us that the Board erred in\neither its claim construction or its ultimate conclusions of\nunpatentability. Accordingly, we affirm.\n BACKGROUND\n I. The ’680 Patent\n The ’680 patent relates generally to data access and\nmanagement. As shown in Figure 1, clients, such as\nusers’ (B) personal computers, may store data in or re-\nquest data stored in clusters (C), each composed of one or\nmore cells (Z), via a network (N).\n\fAC TECHS. v. AMAZON.COM 3\n\n\n\n\n’680 patent col. 7 ll. 45–46, 53–56, col. 9 ll. 55–56. The\npatent teaches that storing copies of data across a net-\nwork improves data integrity and reduces network lag.\nId. at col. 1 l. 28–col. 2 l. 5, col. 2 ll. 21–31. To achieve\nthis, the system copies data—either “the entire data GD\nor the fields [data subsets] F”—redundantly across the\nnetwork. Id. at col. 7 ll. 1–3, col. 7 l. 65–col. 8 l. 2. The\nsystem determines when and where to copy and store\nparticular data as a function of predetermined data\ntransmission parameters. See, e.g., id. at col. 2 ll. 21–27.\n Representative claim 1 reads as follows:\n 1. A data management system comprising:\n at least two data storage units;\n\f4 AC TECHS. v. AMAZON.COM\n\n\n\n\n at least one computer unit that stores at least one\n complete file, each file including a plurality of in-\n dividual pieces, the pieces containing parts of the\n files, wherein at least one piece is stored in a re-\n dundant manner in the at least two data storage\n units;\n a controller to enable data transmission between\n the data storage units and the computer unit;\n wherein at least one of the data storage units and\n computer unit measures a data transmission per-\n formance between at least one of the data storage\n units and the computer unit, the at least one piece\n being stored by the computer unit in a redundant\n manner in the data storage units as a function of\n the measured data transmission performance, and\n the computer unit accessing the at least one of the\n data storage units as a function of the measured\n data transmission performance; and\n wherein at least one of the at least two data stor-\n age units measures a data transmission perfor-\n mance between at least two of the at least two\n data storage units and the data storage units copy\n pieces that are redundantly stored in the system\n from one of the data storage units to another of\n the data storage units independently of an access\n of the computer unit based on the data transmis-\n sion performance measured between the data\n storage units.\n(emphases added to indicate limitations relevant to the\nparties’ disputes). Claim 2 depends from claim 1 and\nfurther recites that the data storage units and computer\nunit “are connected over a wireless network.” Claims 4\nand 6 depend from claims similar to claim 1 and likewise\nrequire connection over a wireless network.\n\fAC TECHS. v. AMAZON.COM 5\n\n\n\n II. Rabinovich\n Amazon challenged the ’680 patent in an IPR. It\nbased its unpatentability arguments on a single prior art\nreference: “Dynamic Replication on the Internet,” by\nDr. Michael Rabinovich. See Michael Rabinovich, et al.,\nAT&T Labs Research, Dynamic Replication on the Inter-\nnet (1998) (J.A. 567–601). Figure 1 shows the Rabinovich\nsystem, which, as relevant here, includes both a client (c),\nwhich requests files, and hosts (h and s), which maintain\nthose files and service client requests.\n\n\n\n\nJ.A. 573. To better manage client requests, Rabinovich\ndefines an algorithm for making and placing file copies\nacross hosts. Among other things, that algorithm consid-\ners both “cnt(s, xs),” defined as the total number of re-\nquests for file xs from a particular host (s) for a particular\nperiod of time, and “cnt(E, xs),” defined as the number of\ntimes those requests for file xs have passed an entity (E)\nas they pass from the client to host (s). J.A. 577–78.\n\f6 AC TECHS. v. AMAZON.COM\n\n\n\n\n III. The IPR\n Amazon’s petition for IPR presented three grounds.\nIn Ground 1, Amazon argued that if “computer unit” were\nconstrued narrowly and mapped to Rabinovich’s client,\nRabinovich rendered all claims of the ’680 patent obvious.\nIn Ground 2 and Ground 3, Amazon argued that if “com-\nputer unit” were instead construed broadly and mapped\nto Rabinovich’s host, it anticipated some claims\n(Ground 2) and rendered remaining claims 2, 4, and 6\nobvious (Ground 3).\n At institution, the Board adopted the broad construc-\ntion of “computer unit” and then instituted review of\nGrounds 1 and 2. See Amazon.com, Inc. v. AC Techs. S.A.,\nNo. IPR2015-01802, Paper 10 at 7–9, 23, 25 (P.T.A.B.\nMar. 8, 2016). With respect to Ground 3, the Board stated\nthat it had “addressed Petitioner’s contentions in our\nanalysis above of Ground 1 and determined that Petition-\ner has established a reasonable likelihood of showing that\nclaims 2, 4, and 6 are unpatentable as obvious over Rab-\ninovich under our construction of ‘computer unit.’ As a\nresult, this ground is moot.” Id. at 25. The Board con-\ncluded by instituting review of whether all claims of the\n’680 patent would have been obvious over Rabinovich and\nwhether some claims were anticipated by Rabinovich. See\nid. at 26.\n The IPR proceeded, and AC filed a patent owner re-\nsponse. In it, AC argued that as properly construed, the\nclaims require redundantly storing file pieces, not redun-\ndantly storing a complete file, and that Rabinovich failed\nto disclose this aspect of the claims. AC further argued\nthat Rabinovich failed to disclose copying data “inde-\npendently of an access of the computer unit” because\nRabinovich’s replication algorithm relied on cnt(s, xs),\nentailing access of the client computers. At oral argu-\nment, AC added that Rabinovich’s reliance on cnt(E, xs)\nalso violated the “independently of an access” limitation.\n\fAC TECHS. v. AMAZON.COM 7\n\n\n\n In its final written decision, the Board rejected AC’s\ncontention that the claims require storage of distinct\nindividual pieces of the file. It reasoned that because the\nclaims recite “at least one piece” and “pieces,” the claims\ncontemplate and include copying and storing more than\none piece of a file, including up to an entire file. And it\nnoted that the claims do not limit how the system stores\nor copies the at least one file-piece(s). Amazon.com, Inc. v.\nAC Techs. S.A., No. IPR2015-01802, Paper 32 at 25–30\n(P.T.A.B. Mar. 6, 2017) (“Final Written Decision”). The\nBoard also rejected AC’s contention that Rabinovich failed\nto teach copying data “independently of an access of the\ncomputer unit.” The Board agreed that if Rabinovich’s\nclient corresponded to the claimed “computer unit,” Rab-\ninovich did not render any claims obvious under Amazon’s\nGround 1. At the same time, however, it found that if\nRabinovich’s host corresponded to the claimed “computer\nunit,” as argued by Amazon in Ground 2, then Rabinovich\nanticipated every claim except claims 2, 4, and 6 because\nneither of the cnt parameters cited by AC involved access\nof Rabinovich’s hosts. It found that cnt(s, xs) represented\naccess of Rabinovich’s client, not the host. See id. at 18,\n33. And it credited Amazon’s expert’s unchallenged\ntestimony that cnt(E, xs) measured possible future de-\nmand for a file and did not require access of the host. Id.\nat 34–36.\n The Board’s final decision did not address whether\nclaims 2, 4, and 6 would have been obvious if the host\nwere treated as the “computer unit,” as Amazon had\nasserted in Ground 3. Pointing to that omission, Amazon\npromptly moved for reconsideration. Despite AC’s protest\nthat Ground 3 had never been part of the IPR, the Board\ndetermined that it should reach the challenge. With the\nBoard’s permission, both parties submitted additional\narguments, expert declarations, and supporting exhibits.\nAC urged that under the Board’s claim constructions, the\nclaims permitted only ad hoc wireless networks, with\n\f8 AC TECHS. v. AMAZON.COM\n\n\n\n\nwhich Rabinovich would have been incompatible. But the\nBoard determined that nothing in the claims or the speci-\nfication limited the claimed wireless network to a particu-\nlar type of network, and it held that Amazon had proven\nclaims 2, 4, and 6 unpatentable. See Amazon.com, Inc. v.\nAC Techs. S.A., No. IPR2015-01802, Paper 55 at 7–8\n(P.T.A.B. Nov. 14, 2017) (“Rehearing Decision”). AC now\nappeals.\n DISCUSSION\n Exclusive jurisdiction to review the Board’s final writ-\nten decisions rests with this court. See 35 U.S.C. § 319;\nsee also 28 U.S.C. § 1295(a)(4)(A). We enforce the limits\nplaced on the Board by statute and due process. See Wi-\nFi One, LLC v. Broadcom Corp., 878 F.3d 1364, 1374\n(Fed. Cir. 2018) (en banc) (“Enforcing statutory limits on\nan agency’s authority to act is precisely the type of issue\nthat courts have historically reviewed.”); Belden Inc. v.\nBerk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)\n(reviewing alleged denial of procedural due process rights\nby the Board). We consider de novo the Board’s legal\nconclusions. See PPC Broadband, Inc. v. Corning Optical\nCommc’ns RF, LLC, 815 F.3d 734, 739 (Fed. Cir. 2016).\nAnd we ensure that substantial evidence supports the\nBoard’s factual findings. See Polaris Indus., Inc. v. Arctic\nCat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018).\n I\n AC argues that the Board erred procedurally when it\ninvalidated claims 2, 4, and 6 based on a ground that it\ndid not institute in its institution decision. AC claims\nthat in doing so, the Board exceeded its statutory authori-\nty and fell short of the requirements of due process. We\naddress these arguments in turn.\n A\n At institution, the Board determines “whether to in-\nstitute an [IPR].” 35 U.S.C. § 314(b). The Supreme Court\n\fAC TECHS. v. AMAZON.COM 9\n\n\n\nrecently clarified that this statutory language “indicates a\nbinary choice—either institute review or don’t.” SAS Inst.\nInc. v. Iancu, 138 S. Ct. 1348, 1355 (2018). If the Board\ninstitutes an IPR, it must issue a final written decision\naddressing all claims challenged by the petitioner. See id.\nat 1359–60; see also 35 U.S.C. § 318(a). And, we have\nheld, if the Board institutes an IPR, it must similarly\naddress all grounds of unpatentability raised by the\npetitioner. See Adidas AG v. Nike, Inc., 894 F.3d 1256,\n1258 (Fed. Cir. 2018) (remanding noninstituted grounds\nfor review); BioDelivery Scis. Int’l, Inc. v. Aquestive Ther-\napeutics, Inc., 898 F.3d 1205, 1208 (Fed. Cir. 2018) (“Post-\nSAS cases have held that it is appropriate to remand to\nthe PTAB to consider non-instituted claims as well as\nnon-instituted grounds.”).\n This precedent forecloses AC’s argument that the\nBoard exceeded its statutory authority when it reconsid-\nered its final written decision and addressed non-\ninstituted Ground 3. Indeed, it would have violated the\nstatutory scheme had the Board not done so. See PGS\nGeophysical AS v. Iancu, 891 F.3d 1354, 1360 (Fed. Cir.\n2018) (“Equal treatment of claims and grounds for institu-\ntion purposes has pervasive support in SAS.”). Contrary\nto AC’s arguments, see Appellant’s Br. 49–53, neither\n§ 314(b)’s timing requirements nor § 314(d)’s limits on\nappealability alter the Board’s statutory obligation to rule\non all claims and grounds presented in the petition. See\nSAS, 138 S. Ct. at 1356 (explaining that an IPR must\n“proceed[] ‘[i]n accordance with’ or ‘in conformance to’ the\npetition” (second alteration in original) (quoting Pursuant,\nOxford English Dictionary (3d ed. 2007),\nhttp://www.oed.com/view/Entry/155073)).\n B\n We recognize that SAS did not displace the Board’s\nresponsibility to comply with due process. We have\nexplained that due process dictates that parties before the\n\f10 AC TECHS. v. AMAZON.COM\n\n\n\n\nBoard must receive adequate notice of the issues the\nBoard will decide as well as an opportunity to be heard on\nthose issues. See Genzyme Therapeutic Prods. Ltd. P’ship\nv. Biomarin Pharm. Inc., 825 F.3d 1360, 1367–68\n(Fed. Cir. 2016).\n No due process violation occurred here. As AC ad-\nmits, after the Board decided to accept Amazon’s rehear-\ning request and consider Ground 3, it permitted AC to\ntake discovery and submit additional briefing and evi-\ndence on that ground. Though AC did not receive a\nhearing specific to Ground 3, it never requested one. Had\nAC desired a hearing, it should have made a request\nbefore the Board. See, e.g., Intellectual Ventures II LLC v.\nEricsson Inc., 686 F. App’x 900, 905–06 (Fed. Cir. 2017)\n(finding no due process violation where party had notice\nand an opportunity to be heard and failed to request sur-\nreply or rehearing to address issue).\n II\n On the merits, AC initially challenges the Board’s in-\nterpretation of the claim limitations reciting “piece(s).”\nWe review the Board’s ultimate claim constructions de\nnovo, see In re Man Mach. Interface Techs. LLC, 822 F.3d\n1282, 1285 (Fed. Cir. 2016), and we review any subsidiary\nfactual findings involving extrinsic evidence for substan-\ntial evidence, see Teva Pharm. USA, Inc. v. Sandoz, Inc.,\n135 S. Ct. 831, 841 (2015). The broadest reasonable\ninterpretation standard applies to this IPR. 1 Thus, the\n\n\n\n 1 Per recent regulation, the Board applies the Phil-\nlips claim construction standard to petitions filed on or\nafter November 13, 2018. See Changes to the Claim\nConstruction Standard for Interpreting Claims in Trial\nProceedings Before the Patent Trial and Appeal Board,\n83 Fed. Reg. 51,340 (Oct. 11, 2018) (to be codified at\n37 C.F.R. pt. 42). Because Amazon filed its petition before\n\fAC TECHS. v. AMAZON.COM 11\n\n\n\nBoard’s construction must be reasonable in light of the\nrecord evidence and the understanding of one skilled in\nthe art. See Microsoft Corp. v. Proxyconn, Inc., 789 F.3d\n1292, 1298 (Fed. Cir. 2015), overruled on other grounds by\nAqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017)\n(en banc).\n The Board acknowledged that a file consists of pieces\nof data. The Board explained, however, that because the\nclaims recite storing “at least one piece” and copying\n“pieces” of data, they permit copying and storing of “more\nthan one piece, and thus all of the pieces of an entire file.”\nFinal Written Decision, at 25–26. The Board further\nexplained that the claims impose no limit on how the\nsystem stores or copies pieces and they do not require\nstoring or copying pieces on an individual basis or prohib-\nit storing or copying pieces “contiguously with other pieces\nof the same file.” Id. at 28–29.\n We conclude that the intrinsic evidence supports the\nBoard’s view. The claims themselves specifically contem-\nplate storage and copying of multiple pieces of a file.\nThey recite storing “at least one piece” and copying “pieces\nthat are redundantly stored in the system.” ’680 patent\ncol. 25 l. 64–col. 26 l. 24 (emphases added). Though other\nclaims recite “the received piece” of data, such claims each\nrefer back to the “at least one piece” limitation for ante-\ncedent basis. See, e.g., id. at col. 27 ll. 36–37, 49–50,\ncol. 28 ll. 25–26, 31–32; Oral Arg. at 11:45–59,\nhttp://oralarguments.cafc.uscourts.gov/default.aspx?fl=20\n17-1999.MP3 (agreeing that “every time [the claim]\nrefer[s] to a piece of data later in the claim, it refers back\nto ‘at least one piece’”). No claim limits how many pieces\nthe system may copy and store, and no claim limits how\nthe system copies and stores those pieces. Indeed, claim 1\n\n\nNovember 13, 2018, we apply the broadest reasonable\ninterpretation standard.\n\f12 AC TECHS. v. AMAZON.COM\n\n\n\n\nrequires storage of all pieces of a complete file as a com-\nplete file, at least on the computer unit. See ’680 patent\ncol. 25 ll. 66–67 (“[A]t least one computer unit that stores\nat least one complete file, each file including a plurality of\nindividual pieces . . . .”).\n The specification further supports the Board’s claim\nconstruction. It contemplates “distribution of the entire\ndata,” not merely specific pieces. Id. at col. 7 l. 65–col. 8\nl. 2. And though it also describes the system separately\nstoring pieces of data, it specifies that those disclosures\nrelate to particular embodiments of the claimed invention\nand never disclaims whole-file storage. See id. at col. 2\nl. 55–61 (“In another embodiment the data in the system\nis divided into data subsets, and . . . stored\nin . . . cells . . . .” (emphasis added)). The prosecution\nhistory contains no contrary statements.\n AC asserts that the Board’s construction conflicts\nwith the invention’s purpose and that the specification\ncompels a contrary construction. But it crafts that argu-\nment by ignoring—often through strategic use of ellip-\nses—the disclosures noted above and by relying on an\nexpert whose testimony the Board elsewhere character-\nized as “conclusory.” See Final Written Decision, at 7;\nAppellant’s Br. 31, 37. Having broadly drafted its claims\nto encompass both systems that copy and store individual\npieces and those that copy and store multiple or all pieces\nof a file, AC cannot now read features from preferred\nembodiments into its claims to bolster its validity argu-\nments. See In re Van Geuns, 988 F.2d 1181, 1184\n(Fed. Cir. 1993) (“[L]imitations are not to be read into the\nclaims from the specification.”). For all of the above\nreasons, we see no error in the Board’s claim interpreta-\ntion.\n III\n AC also challenges the Board’s ultimate findings of\nanticipation and conclusions of obviousness. Specifically,\n\fAC TECHS. v. AMAZON.COM 13\n\n\n\nAC disputes the Board’s finding that Rabinovich discloses\ncopying “independently of an access of the computer unit,”\nas recited by the anticipated independent claims, and the\nBoard’s conclusion that it would have been obvious to\nconnect Rabinovich’s computer unit and data storage\nunits over a wireless network, as recited by claims 2, 4,\nand 6. We address these arguments in turn.\n A\n We review the Board’s finding that Rabinovich dis-\ncloses copying “independently of an access of the computer\nunit,” a question of fact, for substantial evidence. See\nIn re Gleave, 560 F.3d 1331, 1334–35 (Fed. Cir. 2009).\nThe Board found that Rabinovich discloses this limitation\nbecause neither cnt(s, xs) nor cnt(E, xs) requires access of\nRabinovich’s host, the element Amazon identified as the\nclaimed computer unit. See Final Written Decision, at 32–\n37. Substantial evidence supports the Board’s finding.\nSpecifically, Rabinovich defines cnt(s, xs) as the access\ncount for a particular file by the client, not the host, and it\ndefines cnt(E, xs) as the number of appearances of an\nentity (E) (which may be a host) along a request’s path\nfrom the client to a requested file. J.A. 577. Dr. David\nRatner confirmed this understanding of cnt(E, xs) in his\ntestimony, where he further explained that cnt(E, xs)\nsimply measures “possible future demand for a replica of\n[file] x.” J.A. 432. The Board specifically credited this\nunchallenged testimony. See Final Written Decision,\nat 34–35.\n AC nonetheless argues that the Board should have\naccepted its understanding of Rabinovich, and it further\nargues that without explicit disclosure affirming that\nRabinovich does not depend on an access of the host,\nRabinovich cannot disclose independent access. AC’s\ncontentions lack merit. The first misunderstands our role\non appeal. We evaluate whether substantial evidence\nsupports the Board, but “[w]e may not re-\n\f14 AC TECHS. v. AMAZON.COM\n\n\n\n\nweigh . . . evidence.” In re Warsaw Orthopedic, Inc.,\n832 F.3d 1327, 1333 (Fed. Cir. 2016). The second misap-\nprehends the law. Contrary to AC’s suggestion, a refer-\nence need not state a feature’s absence in order to disclose\na negative limitation. See, e.g., Sud-Chemie, Inc. v. Mul-\ntisorb Techs., Inc., 554 F.3d 1001, 1004–05 (Fed. Cir.\n2009) (affirming finding that reference disclosed “uncoat-\ned” film where it did not describe the film as coated and\ndid not suggest necessity of coatings).\n B\n We review the Board’s ultimate determination that\nclaims 2, 4, and 6 would have been obvious de novo, and\nwe review its underlying factual findings for substantial\nevidence. See Harmonic Inc. v. Avid Tech., Inc., 815 F.3d\n1356, 1363 (Fed. Cir. 2016).\n AC asserts that per the Board’s constructions and\nAmazon’s petition, Rabinovich’s data storage units and its\ncomputer unit must both serve as hosts. Continuing from\nthat premise, it contends that only “ad hoc” networks\npermit hosts to directly connect to one another and that\nRabinovich could not operate with an ad hoc network. As\na result, AC claims, the Board erred in finding that it\nwould have been obvious to connect Rabinovich’s system\nover a wireless network.\n AC assumes that the phrase “connected over a wire-\nless network” requires a direct wireless connection. But\nthe Board specifically found the claims “broad enough to\nencompass a connection through a wireless hub.” Rehear-\ning Decision, at 8. AC fails to explain how or why the\nBoard erred in doing so, and we see no error in the\nBoard’s construction. 2 Consequently, we affirm.\n\n\n\n 2 Though AC does not directly challenge the Board’s\nconstruction, we note that it finds support in the claims,\n\fAC TECHS. v. AMAZON.COM 15\n\n\n\n CONCLUSION\n We have reviewed the parties’ remaining arguments\nand find them unpersuasive. Accordingly, we affirm the\nBoard.\n AFFIRMED\n COSTS\n Costs to Appellees.\n\n\n\n\nwhich do not recite “direct” or “ad hoc” network connec-\ntions, the specification, which describes the claimed\nwireless connections in only the broadest terms, see\n’680 patent col. 3 ll. 41–49, and in the prosecution history,\nin which the examiner specifically recognized that “wire-\nless networks were notoriously well known in the art and\ncommonly used at the time of the invention,” see Rehear-\ning Decision, at 6.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357188/", "author_raw": "STOLL, Circuit Judge."}]} | MOORE | SCHALL | STOLL | 1 | {"MOORE": ", Circuit", "SCHALL": ", Circuit", "STOLL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579935/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Ac Technologies S.A. v. amazon.com, Inc.\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n AC TECHNOLOGIES S.A.,\n Appellant\n\n v.\n\n AMAZON.COM, INC., BLIZZARD\n ENTERTAINMENT, INC.,\n Appellees\n ______________________\n\n 2018-1433\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2015-\n01802.\n ______________________\n\n Decided: January 9, 2019\n ______________________\n\n MINGHUI YANG, Hardy Parrish Yang, LLP, Austin,\nTX, argued for appellant. Also represented by VICTOR G.\nHARDY; ANDREW DINOVO, NICOLE E. GLAUSER, DiNovo,\nPrice, Ellwanger & Hardy LLP.\n\n DANIEL T. SHVODIAN, Perkins Coie, LLP, Palo Alto,\nCA, argued for appellees. Also represented by\nCHRISTOPHER LEE KELLEY, WING LIANG, VICTORIA Q.\nSMITH; DAN L. BAGATELL, Hanover, NH.\n ______________________\n\f2 AC TECHS. v. AMAZON.COM\n\n\n\n\n Before MOORE, SCHALL, and STOLL, Circuit Judges.\nSTOLL, Circuit Judge.\n The Patent Trial and Appeal Board issued a final\nwritten decision ruling certain claims of AC Technologies\nS.A.’s U.S. Patent No. 7,904,680 unpatentable. On recon-\nsideration, it invalidated the remaining claims based on a\nground of unpatentability raised by Amazon.com, Inc. and\nBlizzard Entertainment, Inc. (collectively, “Amazon”) in\ntheir petition but not addressed in the final written\ndecision. AC appeals, arguing that the Board exceeded its\nauthority and deprived it of fair process by belatedly\nconsidering this ground.\n We disagree. Precedent mandates that the Board\nconsider all grounds of unpatentability raised in an\ninstituted petition. The Board complied with due process,\nand AC does not persuade us that the Board erred in\neither its claim construction or its ultimate conclusions of\nunpatentability. Accordingly, we affirm.\n BACKGROUND\n I. The ’680 Patent\n The ’680 patent relates generally to data access and\nmanagement. As shown in Figure 1, clients, such as\nusers’ (B) personal computers, may store data in or re-\nquest data stored in clusters (C), each composed of one or\nmore cells (Z), via a network (N).\n\fAC TECHS. v. AMAZON.COM 3\n\n\n\n\n’680 patent col. 7 ll. 45–46, 53–56, col. 9 ll. 55–56. The\npatent teaches that storing copies of data across a net-\nwork improves data integrity and reduces network lag.\nId. at col. 1 l. 28–col. 2 l. 5, col. 2 ll. 21–31. To achieve\nthis, the system copies data—either “the entire data GD\nor the fields [data subsets] F”—redundantly across the\nnetwork. Id. at col. 7 ll. 1–3, col. 7 l. 65–col. 8 l. 2. The\nsystem determines when and where to copy and store\nparticular data as a function of predetermined data\ntransmission parameters. See, e.g., id. at col. 2 ll. 21–27.\n Representative claim 1 reads as follows:\n 1. A data management system comprising:\n at least two data storage units;\n\f4 AC TECHS. v. AMAZON.COM\n\n\n\n\n at least one computer unit that stores at least one\n complete file, each file including a plurality of in-\n dividual pieces, the pieces containing parts of the\n files, wherein at least one piece is stored in a re-\n dundant manner in the at least two data storage\n units;\n a controller to enable data transmission between\n the data storage units and the computer unit;\n wherein at least one of the data storage units and\n computer unit measures a data transmission per-\n formance between at least one of the data storage\n units and the computer unit, the at least one piece\n being stored by the computer unit in a redundant\n manner in the data storage units as a function of\n the measured data transmission performance, and\n the computer unit accessing the at least one of the\n data storage units as a function of the measured\n data transmission performance; and\n wherein at least one of the at least two data stor-\n age units measures a data transmission perfor-\n mance between at least two of the at least two\n data storage units and the data storage units copy\n pieces that are redundantly stored in the system\n from one of the data storage units to another of\n the data storage units independently of an access\n of the computer unit based on the data transmis-\n sion performance measured between the data\n storage units.\n(emphases added to indicate limitations relevant to the\nparties’ disputes). Claim 2 depends from claim 1 and\nfurther recites that the data storage units and computer\nunit “are connected over a wireless network.” Claims 4\nand 6 depend from claims similar to claim 1 and likewise\nrequire connection over a wireless network.\n\fAC TECHS. v. AMAZON.COM 5\n\n\n\n II. Rabinovich\n Amazon challenged the ’680 patent in an IPR. It\nbased its unpatentability arguments on a single prior art\nreference: “Dynamic Replication on the Internet,” by\nDr. Michael Rabinovich. See Michael Rabinovich, et al.,\nAT&T Labs Research, Dynamic Replication on the Inter-\nnet (1998) (J.A. 567–601). Figure 1 shows the Rabinovich\nsystem, which, as relevant here, includes both a client (c),\nwhich requests files, and hosts (h and s), which maintain\nthose files and service client requests.\n\n\n\n\nJ.A. 573. To better manage client requests, Rabinovich\ndefines an algorithm for making and placing file copies\nacross hosts. Among other things, that algorithm consid-\ners both “cnt(s, xs),” defined as the total number of re-\nquests for file xs from a particular host (s) for a particular\nperiod of time, and “cnt(E, xs),” defined as the number of\ntimes those requests for file xs have passed an entity (E)\nas they pass from the client to host (s). J.A. 577–78.\n\f6 AC TECHS. v. AMAZON.COM\n\n\n\n\n III. The IPR\n Amazon’s petition for IPR presented three grounds.\nIn Ground 1, Amazon argued that if “computer unit” were\nconstrued narrowly and mapped to Rabinovich’s client,\nRabinovich rendered all claims of the ’680 patent obvious.\nIn Ground 2 and Ground 3, Amazon argued that if “com-\nputer unit” were instead construed broadly and mapped\nto Rabinovich’s host, it anticipated some claims\n(Ground 2) and rendered remaining claims 2, 4, and 6\nobvious (Ground 3).\n At institution, the Board adopted the broad construc-\ntion of “computer unit” and then instituted review of\nGrounds 1 and 2. See Amazon.com, Inc. v. AC Techs. S.A.,\nNo. IPR2015-01802, Paper 10 at 7–9, 23, 25 (P.T.A.B.\nMar. 8, 2016). With respect to Ground 3, the Board stated\nthat it had “addressed Petitioner’s contentions in our\nanalysis above of Ground 1 and determined that Petition-\ner has established a reasonable likelihood of showing that\nclaims 2, 4, and 6 are unpatentable as obvious over Rab-\ninovich under our construction of ‘computer unit.’ As a\nresult, this ground is moot.” Id. at 25. The Board con-\ncluded by instituting review of whether all claims of the\n’680 patent would have been obvious over Rabinovich and\nwhether some claims were anticipated by Rabinovich. See\nid. at 26.\n The IPR proceeded, and AC filed a patent owner re-\nsponse. In it, AC argued that as properly construed, the\nclaims require redundantly storing file pieces, not redun-\ndantly storing a complete file, and that Rabinovich failed\nto disclose this aspect of the claims. AC further argued\nthat Rabinovich failed to disclose copying data “inde-\npendently of an access of the computer unit” because\nRabinovich’s replication algorithm relied on cnt(s, xs),\nentailing access of the client computers. At oral argu-\nment, AC added that Rabinovich’s reliance on cnt(E, xs)\nalso violated the “independently of an access” limitation.\n\fAC TECHS. v. AMAZON.COM 7\n\n\n\n In its final written decision, the Board rejected AC’s\ncontention that the claims require storage of distinct\nindividual pieces of the file. It reasoned that because the\nclaims recite “at least one piece” and “pieces,” the claims\ncontemplate and include copying and storing more than\none piece of a file, including up to an entire file. And it\nnoted that the claims do not limit how the system stores\nor copies the at least one file-piece(s). Amazon.com, Inc. v.\nAC Techs. S.A., No. IPR2015-01802, Paper 32 at 25–30\n(P.T.A.B. Mar. 6, 2017) (“Final Written Decision”). The\nBoard also rejected AC’s contention that Rabinovich failed\nto teach copying data “independently of an access of the\ncomputer unit.” The Board agreed that if Rabinovich’s\nclient corresponded to the claimed “computer unit,” Rab-\ninovich did not render any claims obvious under Amazon’s\nGround 1. At the same time, however, it found that if\nRabinovich’s host corresponded to the claimed “computer\nunit,” as argued by Amazon in Ground 2, then Rabinovich\nanticipated every claim except claims 2, 4, and 6 because\nneither of the cnt parameters cited by AC involved access\nof Rabinovich’s hosts. It found that cnt(s, xs) represented\naccess of Rabinovich’s client, not the host. See id. at 18,\n33. And it credited Amazon’s expert’s unchallenged\ntestimony that cnt(E, xs) measured possible future de-\nmand for a file and did not require access of the host. Id.\nat 34–36.\n The Board’s final decision did not address whether\nclaims 2, 4, and 6 would have been obvious if the host\nwere treated as the “computer unit,” as Amazon had\nasserted in Ground 3. Pointing to that omission, Amazon\npromptly moved for reconsideration. Despite AC’s protest\nthat Ground 3 had never been part of the IPR, the Board\ndetermined that it should reach the challenge. With the\nBoard’s permission, both parties submitted additional\narguments, expert declarations, and supporting exhibits.\nAC urged that under the Board’s claim constructions, the\nclaims permitted only ad hoc wireless networks, with\n\f8 AC TECHS. v. AMAZON.COM\n\n\n\n\nwhich Rabinovich would have been incompatible. But the\nBoard determined that nothing in the claims or the speci-\nfication limited the claimed wireless network to a particu-\nlar type of network, and it held that Amazon had proven\nclaims 2, 4, and 6 unpatentable. See Amazon.com, Inc. v.\nAC Techs. S.A., No. IPR2015-01802, Paper 55 at 7–8\n(P.T.A.B. Nov. 14, 2017) (“Rehearing Decision”). AC now\nappeals.\n DISCUSSION\n Exclusive jurisdiction to review the Board’s final writ-\nten decisions rests with this court. See 35 U.S.C. § 319;\nsee also 28 U.S.C. § 1295(a)(4)(A). We enforce the limits\nplaced on the Board by statute and due process. See Wi-\nFi One, LLC v. Broadcom Corp., 878 F.3d 1364, 1374\n(Fed. Cir. 2018) (en banc) (“Enforcing statutory limits on\nan agency’s authority to act is precisely the type of issue\nthat courts have historically reviewed.”); Belden Inc. v.\nBerk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)\n(reviewing alleged denial of procedural due process rights\nby the Board). We consider de novo the Board’s legal\nconclusions. See PPC Broadband, Inc. v. Corning Optical\nCommc’ns RF, LLC, 815 F.3d 734, 739 (Fed. Cir. 2016).\nAnd we ensure that substantial evidence supports the\nBoard’s factual findings. See Polaris Indus., Inc. v. Arctic\nCat, Inc., 882 F.3d 1056, 1064 (Fed. Cir. 2018).\n I\n AC argues that the Board erred procedurally when it\ninvalidated claims 2, 4, and 6 based on a ground that it\ndid not institute in its institution decision. AC claims\nthat in doing so, the Board exceeded its statutory authori-\nty and fell short of the requirements of due process. We\naddress these arguments in turn.\n A\n At institution, the Board determines “whether to in-\nstitute an [IPR].” 35 U.S.C. § 314(b). The Supreme Court\n\fAC TECHS. v. AMAZON.COM 9\n\n\n\nrecently clarified that this statutory language “indicates a\nbinary choice—either institute review or don’t.” SAS Inst.\nInc. v. Iancu, 138 S. Ct. 1348, 1355 (2018). If the Board\ninstitutes an IPR, it must issue a final written decision\naddressing all claims challenged by the petitioner. See id.\nat 1359–60; see also 35 U.S.C. § 318(a). And, we have\nheld, if the Board institutes an IPR, it must similarly\naddress all grounds of unpatentability raised by the\npetitioner. See Adidas AG v. Nike, Inc., 894 F.3d 1256,\n1258 (Fed. Cir. 2018) (remanding noninstituted grounds\nfor review); BioDelivery Scis. Int’l, Inc. v. Aquestive Ther-\napeutics, Inc., 898 F.3d 1205, 1208 (Fed. Cir. 2018) (“Post-\nSAS cases have held that it is appropriate to remand to\nthe PTAB to consider non-instituted claims as well as\nnon-instituted grounds.”).\n This precedent forecloses AC’s argument that the\nBoard exceeded its statutory authority when it reconsid-\nered its final written decision and addressed non-\ninstituted Ground 3. Indeed, it would have violated the\nstatutory scheme had the Board not done so. See PGS\nGeophysical AS v. Iancu, 891 F.3d 1354, 1360 (Fed. Cir.\n2018) (“Equal treatment of claims and grounds for institu-\ntion purposes has pervasive support in SAS.”). Contrary\nto AC’s arguments, see Appellant’s Br. 49–53, neither\n§ 314(b)’s timing requirements nor § 314(d)’s limits on\nappealability alter the Board’s statutory obligation to rule\non all claims and grounds presented in the petition. See\nSAS, 138 S. Ct. at 1356 (explaining that an IPR must\n“proceed[] ‘[i]n accordance with’ or ‘in conformance to’ the\npetition” (second alteration in original) (quoting Pursuant,\nOxford English Dictionary (3d ed. 2007),\nhttp://www.oed.com/view/Entry/155073)).\n B\n We recognize that SAS did not displace the Board’s\nresponsibility to comply with due process. We have\nexplained that due process dictates that parties before the\n\f10 AC TECHS. v. AMAZON.COM\n\n\n\n\nBoard must receive adequate notice of the issues the\nBoard will decide as well as an opportunity to be heard on\nthose issues. See Genzyme Therapeutic Prods. Ltd. P’ship\nv. Biomarin Pharm. Inc., 825 F.3d 1360, 1367–68\n(Fed. Cir. 2016).\n No due process violation occurred here. As AC ad-\nmits, after the Board decided to accept Amazon’s rehear-\ning request and consider Ground 3, it permitted AC to\ntake discovery and submit additional briefing and evi-\ndence on that ground. Though AC did not receive a\nhearing specific to Ground 3, it never requested one. Had\nAC desired a hearing, it should have made a request\nbefore the Board. See, e.g., Intellectual Ventures II LLC v.\nEricsson Inc., 686 F. App’x 900, 905–06 (Fed. Cir. 2017)\n(finding no due process violation where party had notice\nand an opportunity to be heard and failed to request sur-\nreply or rehearing to address issue).\n II\n On the merits, AC initially challenges the Board’s in-\nterpretation of the claim limitations reciting “piece(s).”\nWe review the Board’s ultimate claim constructions de\nnovo, see In re Man Mach. Interface Techs. LLC, 822 F.3d\n1282, 1285 (Fed. Cir. 2016), and we review any subsidiary\nfactual findings involving extrinsic evidence for substan-\ntial evidence, see Teva Pharm. USA, Inc. v. Sandoz, Inc.,\n135 S. Ct. 831, 841 (2015). The broadest reasonable\ninterpretation standard applies to this IPR. 1 Thus, the\n\n\n\n 1 Per recent regulation, the Board applies the Phil-\nlips claim construction standard to petitions filed on or\nafter November 13, 2018. See Changes to the Claim\nConstruction Standard for Interpreting Claims in Trial\nProceedings Before the Patent Trial and Appeal Board,\n83 Fed. Reg. 51,340 (Oct. 11, 2018) (to be codified at\n37 C.F.R. pt. 42). Because Amazon filed its petition before\n\fAC TECHS. v. AMAZON.COM 11\n\n\n\nBoard’s construction must be reasonable in light of the\nrecord evidence and the understanding of one skilled in\nthe art. See Microsoft Corp. v. Proxyconn, Inc., 789 F.3d\n1292, 1298 (Fed. Cir. 2015), overruled on other grounds by\nAqua Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017)\n(en banc).\n The Board acknowledged that a file consists of pieces\nof data. The Board explained, however, that because the\nclaims recite storing “at least one piece” and copying\n“pieces” of data, they permit copying and storing of “more\nthan one piece, and thus all of the pieces of an entire file.”\nFinal Written Decision, at 25–26. The Board further\nexplained that the claims impose no limit on how the\nsystem stores or copies pieces and they do not require\nstoring or copying pieces on an individual basis or prohib-\nit storing or copying pieces “contiguously with other pieces\nof the same file.” Id. at 28–29.\n We conclude that the intrinsic evidence supports the\nBoard’s view. The claims themselves specifically contem-\nplate storage and copying of multiple pieces of a file.\nThey recite storing “at least one piece” and copying “pieces\nthat are redundantly stored in the system.” ’680 patent\ncol. 25 l. 64–col. 26 l. 24 (emphases added). Though other\nclaims recite “the received piece” of data, such claims each\nrefer back to the “at least one piece” limitation for ante-\ncedent basis. See, e.g., id. at col. 27 ll. 36–37, 49–50,\ncol. 28 ll. 25–26, 31–32; Oral Arg. at 11:45–59,\nhttp://oralarguments.cafc.uscourts.gov/default.aspx?fl=20\n17-1999.MP3 (agreeing that “every time [the claim]\nrefer[s] to a piece of data later in the claim, it refers back\nto ‘at least one piece’”). No claim limits how many pieces\nthe system may copy and store, and no claim limits how\nthe system copies and stores those pieces. Indeed, claim 1\n\n\nNovember 13, 2018, we apply the broadest reasonable\ninterpretation standard.\n\f12 AC TECHS. v. AMAZON.COM\n\n\n\n\nrequires storage of all pieces of a complete file as a com-\nplete file, at least on the computer unit. See ’680 patent\ncol. 25 ll. 66–67 (“[A]t least one computer unit that stores\nat least one complete file, each file including a plurality of\nindividual pieces . . . .”).\n The specification further supports the Board’s claim\nconstruction. It contemplates “distribution of the entire\ndata,” not merely specific pieces. Id. at col. 7 l. 65–col. 8\nl. 2. And though it also describes the system separately\nstoring pieces of data, it specifies that those disclosures\nrelate to particular embodiments of the claimed invention\nand never disclaims whole-file storage. See id. at col. 2\nl. 55–61 (“In another embodiment the data in the system\nis divided into data subsets, and . . . stored\nin . . . cells . . . .” (emphasis added)). The prosecution\nhistory contains no contrary statements.\n AC asserts that the Board’s construction conflicts\nwith the invention’s purpose and that the specification\ncompels a contrary construction. But it crafts that argu-\nment by ignoring—often through strategic use of ellip-\nses—the disclosures noted above and by relying on an\nexpert whose testimony the Board elsewhere character-\nized as “conclusory.” See Final Written Decision, at 7;\nAppellant’s Br. 31, 37. Having broadly drafted its claims\nto encompass both systems that copy and store individual\npieces and those that copy and store multiple or all pieces\nof a file, AC cannot now read features from preferred\nembodiments into its claims to bolster its validity argu-\nments. See In re Van Geuns, 988 F.2d 1181, 1184\n(Fed. Cir. 1993) (“[L]imitations are not to be read into the\nclaims from the specification.”). For all of the above\nreasons, we see no error in the Board’s claim interpreta-\ntion.\n III\n AC also challenges the Board’s ultimate findings of\nanticipation and conclusions of obviousness. Specifically,\n\fAC TECHS. v. AMAZON.COM 13\n\n\n\nAC disputes the Board’s finding that Rabinovich discloses\ncopying “independently of an access of the computer unit,”\nas recited by the anticipated independent claims, and the\nBoard’s conclusion that it would have been obvious to\nconnect Rabinovich’s computer unit and data storage\nunits over a wireless network, as recited by claims 2, 4,\nand 6. We address these arguments in turn.\n A\n We review the Board’s finding that Rabinovich dis-\ncloses copying “independently of an access of the computer\nunit,” a question of fact, for substantial evidence. See\nIn re Gleave, 560 F.3d 1331, 1334–35 (Fed. Cir. 2009).\nThe Board found that Rabinovich discloses this limitation\nbecause neither cnt(s, xs) nor cnt(E, xs) requires access of\nRabinovich’s host, the element Amazon identified as the\nclaimed computer unit. See Final Written Decision, at 32–\n37. Substantial evidence supports the Board’s finding.\nSpecifically, Rabinovich defines cnt(s, xs) as the access\ncount for a particular file by the client, not the host, and it\ndefines cnt(E, xs) as the number of appearances of an\nentity (E) (which may be a host) along a request’s path\nfrom the client to a requested file. J.A. 577. Dr. David\nRatner confirmed this understanding of cnt(E, xs) in his\ntestimony, where he further explained that cnt(E, xs)\nsimply measures “possible future demand for a replica of\n[file] x.” J.A. 432. The Board specifically credited this\nunchallenged testimony. See Final Written Decision,\nat 34–35.\n AC nonetheless argues that the Board should have\naccepted its understanding of Rabinovich, and it further\nargues that without explicit disclosure affirming that\nRabinovich does not depend on an access of the host,\nRabinovich cannot disclose independent access. AC’s\ncontentions lack merit. The first misunderstands our role\non appeal. We evaluate whether substantial evidence\nsupports the Board, but “[w]e may not re-\n\f14 AC TECHS. v. AMAZON.COM\n\n\n\n\nweigh . . . evidence.” In re Warsaw Orthopedic, Inc.,\n832 F.3d 1327, 1333 (Fed. Cir. 2016). The second misap-\nprehends the law. Contrary to AC’s suggestion, a refer-\nence need not state a feature’s absence in order to disclose\na negative limitation. See, e.g., Sud-Chemie, Inc. v. Mul-\ntisorb Techs., Inc., 554 F.3d 1001, 1004–05 (Fed. Cir.\n2009) (affirming finding that reference disclosed “uncoat-\ned” film where it did not describe the film as coated and\ndid not suggest necessity of coatings).\n B\n We review the Board’s ultimate determination that\nclaims 2, 4, and 6 would have been obvious de novo, and\nwe review its underlying factual findings for substantial\nevidence. See Harmonic Inc. v. Avid Tech., Inc., 815 F.3d\n1356, 1363 (Fed. Cir. 2016).\n AC asserts that per the Board’s constructions and\nAmazon’s petition, Rabinovich’s data storage units and its\ncomputer unit must both serve as hosts. Continuing from\nthat premise, it contends that only “ad hoc” networks\npermit hosts to directly connect to one another and that\nRabinovich could not operate with an ad hoc network. As\na result, AC claims, the Board erred in finding that it\nwould have been obvious to connect Rabinovich’s system\nover a wireless network.\n AC assumes that the phrase “connected over a wire-\nless network” requires a direct wireless connection. But\nthe Board specifically found the claims “broad enough to\nencompass a connection through a wireless hub.” Rehear-\ning Decision, at 8. AC fails to explain how or why the\nBoard erred in doing so, and we see no error in the\nBoard’s construction. 2 Consequently, we affirm.\n\n\n\n 2 Though AC does not directly challenge the Board’s\nconstruction, we note that it finds support in the claims,\n\fAC TECHS. v. AMAZON.COM 15\n\n\n\n CONCLUSION\n We have reviewed the parties’ remaining arguments\nand find them unpersuasive. Accordingly, we affirm the\nBoard.\n AFFIRMED\n COSTS\n Costs to Appellees.\n\n\n\n\nwhich do not recite “direct” or “ad hoc” network connec-\ntions, the specification, which describes the claimed\nwireless connections in only the broadest terms, see\n’680 patent col. 3 ll. 41–49, and in the prosecution history,\nin which the examiner specifically recognized that “wire-\nless networks were notoriously well known in the art and\ncommonly used at the time of the invention,” see Rehear-\ning Decision, at 6.\n[END_CASE]",
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4,580,424 | Realtime Data, LLC v. Iancu | 2019-01-10 | 18-1154 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before DYK, TARANTO, and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "STOLL, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n REALTIME DATA, LLC, DBA IXO,\n Appellant\n\n v.\n\n ANDREI IANCU, UNDER SECRETARY OF\n COMMERCE FOR INTELLECTUAL PROPERTY\n AND DIRECTOR OF THE UNITED STATES\n PATENT AND TRADEMARK OFFICE,\n Intervenor\n ______________________\n\n 2018-1154\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2016-\n00783.\n ______________________\n\n Decided: January 10, 2019\n ______________________\n\n KAYVAN B. NOROOZI, Noroozi PC, Santa Monica, CA,\nargued for appellant.\n\n SARAH E. CRAVEN, Office of the Solicitor, United\nStates Patent and Trademark Office, Alexandria, VA,\nargued for intervenor. Also represented by THOMAS W.\nKRAUSE, JOSEPH MATAL, FARHEENA YASMEEN RASHEED.\n ______________________\n\f2 REALTIME DATA, LLC v. IANCU\n\n\n\n\n Before DYK, TARANTO, and STOLL, Circuit Judges.\nSTOLL, Circuit Judge.\n Hewlett Packard Enterprise Co., HP Enterprise Ser-\nvices, LLC, and Teradata Operations, Inc. (collectively,\n“HP”) sought inter partes review of claims 1–4, 8, 14–17,\n21, and 28 of U.S. Patent No. 6,597,812 (the ’812 patent)\nbefore the U.S. Patent and Trademark Office’s Patent\nTrial and Appeal Board. The Board instituted review\nand, in its final written decision, found that all of the\nchallenged claims would have been obvious over the prior\nart. Realtime Data, LLC, owner of the ’812 patent, ap-\npeals the Board’s decision. We affirm.\n BACKGROUND\n I\n The ’812 patent discloses “[s]ystems and methods for\nproviding lossless data compression and decompres-\nsion . . . [that] exploit various characteristics of run-length\nencoding, parametric dictionary encoding, and bit pack-\ning.” ’812 patent Abstract. Run-length encoding is a form\nof lossless data compression where a “run” of characters is\nreplaced with an identifier for each individual character\nand the number of times it is repeated. For example,\nusing run-length encoding, the input string\nAAABBBBBBCCCCAA could be represented as\n3A6B4C2A, which contains seven fewer characters.\n Dictionary encoding is a form of lossless data com-\npression that assigns a code word to a particular data\nstring, maps that code word to an index, and replaces\nevery matching data string with the corresponding code\nword. For example, the same input string described\nabove could be assigned the code word “EASY123,” which\ncontains eight fewer characters. This assignment would\nbe mapped into an index, or dictionary, so that every time\nthe input string AAABBBBBBCCCCAA appeared, it\nwould be replaced with EASY123.\n\fREALTIME DATA, LLC v. IANCU 3\n\n\n\n Claim 1, which combines run-length and dictionary\nencoding techniques, is illustrative of the challenged\nclaims:\n 1. A method for compressing input data compris-\n ing a plurality of data blocks, the method compris-\n ing the steps of:\n detecting if the input data comprises a\n run-length sequence of data blocks;\n outputting an encoded run-length se-\n quence, if a run-length sequence of data\n blocks is detected;\n maintaining a dictionary comprising a\n plurality of code words, wherein each code\n word in the dictionary is associated with a\n unique data block string;\n building a data block string from at least\n one data block in the input data that is\n not part of a run-length sequence;\n searching for a code word in the dictionary\n having a unique data block string associ-\n ated therewith that matches the built data\n block string; and\n outputting the code word representing the\n built data block string.\nId. at col. 16 l. 53–col. 17 l. 2.\n Claim 4 is relevant to the claim construction dispute\nraised by Realtime on appeal. The claim further limits\nthe “maintaining a dictionary” step and reads as follows:\n 4. The method of claim 1, wherein the step of\n maintaining a dictionary comprises the steps of:\n dynamically generating a new code word\n corresponding to a built data block string,\n\f4 REALTIME DATA, LLC v. IANCU\n\n\n\n\n if the built data block string does not\n match a unique data block string in the\n dictionary; and\n adding the new code word in the diction-\n ary.\nId. at col. 17 ll. 17–23.\n II\n In April 2016, HP petitioned for inter partes review of\nthe ’812 patent, alleging that claims 1–4, 8, 14–17, 21,\nand 28 would have been obvious under\n35 U.S.C. § 103(a). In particular, HP argued that claims\n 1\n\n1–4, 8, and 28 would have been obvious over U.S. Patent\nNo. 4,929,946 (“O’Brien”) in view of Nelson, a data com-\npression textbook, 2 and that claims 14–17 and 21 would\nhave been obvious over O’Brien in view of Nelson and\nU.S. Patent No. 4,558,302 (“Welch”).\n With respect to independent claim 1, HP argued that\nO’Brien disclosed the preamble, the “detecting” step, and\nthe first “outputting” step, and that O’Brien and Nelson\nboth individually disclosed the “maintaining” step, the\n“building” step, the “searching” step, and the second\n“outputting” step. For the “maintaining” and “searching”\nsteps, HP clarified that even though O’Brien did not use\nthe specific claim term “dictionary,” a person of ordinary\n\n\n\n 1 Because the issue date of the ’812 patent is Ju-\nly 22, 2003, and neither the ’812 patent nor the applica-\ntion from which it issued ever contained a claim with an\neffective filing date on or after March 16, 2013, the ver-\nsion of 35 U.S.C. § 103 that applies here is the one preced-\ning the changes made by the America Invents Act. See\nLeahy-Smith America Invents Act, Pub. L. No. 112-29,\n125 Stat. 284, 293, § 3(n) (2011).\n 2 Mark Nelson, The Data Compression Book (1992).\n\fREALTIME DATA, LLC v. IANCU 5\n\n\n\nskill in the art “would have recognized this and known, as\ntaught in Nelson, that O’Brien’s string compression is a\ndictionary algorithm.” Pet. Requesting Inter Partes\nReview, SAP Am. Inc. et al. v. Realtime Data LLC,\nIPR2016-00783, Paper 1 at 41 (P.T.A.B. Apr. 1, 2016).\n In its response, Realtime conceded that O’Brien’s\nstring compression was, in fact, dictionary encoding as\nrequired by the claims. Instead of challenging O’Brien’s\nteaching of dictionary encoding, Realtime primarily\nfocused its response on the “maintaining” step. Specifical-\nly, Realtime argued that O’Brien did not disclose “main-\ntaining a dictionary” because O’Brien generates a new\ndictionary for each data segment, while the ’812 patent\nprocesses an input data stream through a single diction-\nary that resets to its initial state only when full. Realtime\nalso argued that HP presented insufficient evidence of a\nmotivation to combine O’Brien and Nelson, and that HP\nattempted instead to sidestep this requirement by argu-\ning Nelson as an alternative to O’Brien. As Realtime\nnoted, “[i]ndeed, Petitioner and its declarant allege\nO’Brien in fact discloses all of the limitations of all claims\nchallenged in Ground 1.” Patent Owner Resp., Hewlett-\nPackard Enter. Co. v. Realtime Data LLC, IPR2016-\n00783, Paper 29 at 44 (P.T.A.B. Jan. 5, 2017) (emphasis in\noriginal).\n The Board agreed with Realtime’s statement, finding\nthat O’Brien discloses the “maintaining a dictionary”\nlimitation and every other limitation in independent\nclaim 1. While recognizing that there was a dispute as to\nthe construction of the phrase “maintaining a dictionary,”\nthe Board determined that no construction was necessary\nas O’Brien taught every step for “maintaining a diction-\nary” identified in dependent claim 4. The Board also\ndetermined that O’Brien teaches the limitations of claims\n1–4, 8, and 28.\n\f6 REALTIME DATA, LLC v. IANCU\n\n\n\n\n The Board next addressed why “a person having ordi-\nnary skill in the art would have had to turn to Nelson\nafter reading O’Brien when O’Brien allegedly teaches all\nthe limitations of all claims challenged in Ground 1.”\nHewlett-Packard Enter. Co. v. Realtime Data LLC,\nIPR2016-00783, 2017 WL 4349409, at *9 (P.T.A.B.\nSept. 28, 2017). The Board noted that HP’s primary\nobviousness argument established only that “Nelson\nmakes clear that O’Brien’s string encoding . . . is diction-\nary-based encoding” without using Nelson for the disclo-\nsure of a particular claim limitation. Id. at *12.\nAccording to the Board, HP’s other argument—that it\nwould have been obvious to a person of ordinary skill in\nthe art to substitute Nelson’s dictionary compression\ntechniques with O’Brien’s string compression—was an\n“argument[] in the alternative.” Id.\n Even though the Board agreed with HP’s primary ob-\nviousness argument—that O’Brien alone teaches every\nlimitation in claims 1–4, 8, and 28—the Board neverthe-\nless addressed the question of motivation to combine\nO’Brien in view of Nelson. The Board compared the\ncompression techniques in O’Brien and Nelson and found\nthat they “share striking similarities.” Id. at *11. The\nBoard also found that O’Brien “suggests that a wide\nvariety of adaptive compression algorithms could be used\nand encourages a person having ordinary skill in the art\nto turn to ‘well known’ algorithms such as Nelson’s algo-\nrithms for techniques of performing string compression in\nO’Brien’s system, which would be a simple substitution\nyielding predictable results.” Id. Thus, the Board con-\ncluded, “Petitioner has established by a preponderance of\nthe evidence that a person having ordinary skill in the art\nwould have been motivated to turn to Nelson after read-\ning O’Brien even though O’Brien teaches all the limita-\ntions of all claims challenged in ground 1.” Id. at *12.\n As to claims 14–17 and 21, the Board found that\nWelch taught the additional limitation that a software\n\fREALTIME DATA, LLC v. IANCU 7\n\n\n\nprogram be used to implement the claimed method. Id. at\n*21. Consequently, the Board held that claims 1–4, 8,\nand 28 would have been unpatentable under\n35 U.S.C. § 103 in view of O’Brien alone, or alternatively,\nin further view of Nelson, and claims 14–17 and 21 would\nhave been unpatentable under 35 U.S.C. § 103 in view of\nO’Brien, Nelson, and Welch. Realtime appeals. We have\njurisdiction under 28 U.S.C. § 1295(a)(4)(A).\n DISCUSSION\n Realtime makes two primary arguments on appeal:\n(1) that the Board erred in its determination that a person\nof ordinary skill in the art would have been motivated to\ncombine the teachings of O’Brien and Nelson; and (2) that\nthe Board erred by failing to construe the “maintaining a\ndictionary” limitation and in finding that O’Brien dis-\nclosed the “maintaining a dictionary” limitation. We\naddress these issues in turn.\n I\n An invention cannot be patented, “though the inven-\ntion is not identically disclosed or described as set forth in\nsection 102,” if, at the time of the invention, the differ-\nences between the claimed invention and the prior art\nwould have rendered the claimed invention “obvious” to a\nperson of ordinary skill in the art. 35 U.S.C. § 103(a). We\nhave long held that when a party claims that a combina-\ntion of references renders a patented invention obvious,\nthe “factfinder must further consider the factual questions\nof whether a person of ordinary skill in the art would be\nmotivated to combine those references.” Dome Patent L.P.\nv. Lee, 799 F.3d 1372, 1380 (Fed. Cir. 2015); see also KSR\nInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[A]\npatent composed of several elements is not proved obvious\nmerely by demonstrating that each of its elements was,\nindependently, known in the prior art.”). This require-\nment is necessary because “claimed discoveries almost of\nnecessity will be combinations of what, in some sense, is\n\f8 REALTIME DATA, LLC v. IANCU\n\n\n\n\nalready known,” and the mere existence of independent\nelements in the prior art does not in itself foreclose the\npossibility of an inventive combination. KSR,\n550 U.S. at 418–19.\n Here, HP’s primary argument to the Board was that\nall of the elements of claims 1–4, 8, and 28 were disclosed\nin O’Brien, a single reference. HP relied on Nelson simply\nto demonstrate that a person of ordinary skill in the art\nwould have understood that the string compression dis-\nclosed in O’Brien was, in fact, a type of dictionary encoder,\nthe terminology used in the ’812 patent. As both the\nBoard and Realtime recognized, HP also argued in the\nalternative that Nelson disclosed some of the elements in\nthe claims at issue.\n We conclude that, in this case, the Board was not re-\nquired to make any finding regarding a motivation to\ncombine given its reliance on O’Brien alone. Certainly,\nhad the Board relied on HP’s alternative argument, HP\nwould have been required to demonstrate a sufficient\nmotivation to combine the two references. In its primary\nargument, however, HP relied on Nelson merely to ex-\nplain that O’Brien’s encoder is a type of dictionary encod-\ner. In addition, Realtime conceded the point HP sought to\nuse Nelson to prove: that O’Brien disclosed a dictionary\nencoder. See Hewlett-Packard, 2017 WL 4349409, at *5\n(“At the outset, we note that Petitioner, Patent Owner,\nand their respective declarants all agree that O’Brien’s\nencoder is a type of dictionary encoder.”).\n Under these circumstances, the Board was free to\ncome to the very conclusion it reached: that O’Brien alone\ndisclosed every element of claims 1–4, 8, and 28. And\nbecause the Board did not rely on Nelson for the disclo-\nsure of a particular element or teaching, the Board had no\nobligation to find a motivation to combine O’Brien and\nNelson. While Realtime argues that the use of O’Brien as\na single anticipatory reference would have been more\n\fREALTIME DATA, LLC v. IANCU 9\n\n\n\nproperly raised under § 102, it is well settled that “a\ndisclosure that anticipates under § 102 also renders the\nclaim invalid under § 103, for ‘anticipation is the epitome\nof obviousness.’” Connell v. Sears, Roebuck & Co., 722\nF.2d 1542, 1548 (Fed. Cir. 1983) (quoting In re Fracalossi,\n681 F.2d 792, 794 (CCPA 1982)); cf. Wasica Fin. GmbH v.\nCont’l Auto. Sys., Inc., 853 F.3d 1272, 1278 n.3 (Fed. Cir.\n2017) (noting the Board’s conclusion that a prior art\nreference rendered certain claims obvious “by virtue of its\nanticipation of them”). The Board therefore did not err\nwhen it concluded that claim 1 was invalid under § 103\nbased on O’Brien alone.\n For this same reason, we are not persuaded by\nRealtime’s argument that the Board violated 35 U.S.C.\n§ 312(a)(3) or other notice requirements by relying on\nO’Brien alone. Section 312(a)(3) requires a petition to\nidentify “in writing and with particularity, each claim\nchallenged, the grounds on which the challenge to each\nclaim is based, and the evidence that supports the\ngrounds for the challenge to each claim.” § 312(a)(3). And\nwe have held that the Board may not rely on a basis for\ndecision unless the party adversely affected by such\nreliance had notice of the basis and an adequate oppor-\ntunity to address it. See SAS Inst. Inc. v. Complemen-\ntSoft, LLC, 825 F.3d 1341, 1351–52 (Fed. Cir. 2016)\n(citing authorities), rev’d on other grounds, SAS Inst. Inc.\nv. Iancu, 138 S. Ct. 1348 (2018).\n HP’s petition identified O’Brien as disclosing every el-\nement of claim 1. The sole purpose for which HP relied on\nNelson, to demonstrate that O’Brien disclosed a diction-\nary encoder, was conceded by Realtime. Realtime cannot\nnow argue that its own admissions, which obviated the\nneed for any of Nelson’s teachings, deprived it of notice or\notherwise foreclosed HP from arguing obviousness based\non O’Brien’s disclosures without Nelson. The Board’s\ndecision rested solely on the arguments and grounds\nproffered by HP in its petition, for which Realtime both\n\f10 REALTIME DATA, LLC v. IANCU\n\n\n\n\nhad notice and the opportunity to respond. Accordingly,\nwe conclude that the Board did not violate § 312(a)(3) or\nother notice requirements.\n In any event, even if the Board were required to make\na finding regarding a motivation to combine O’Brien with\nNelson, its finding in this case is supported by substantial\nevidence. 3 A motivation to combine may be found “explic-\nitly or implicitly in market forces; design incentives; the\n‘interrelated teachings of multiple patents’; ‘any need or\nproblem known in the field of endeavor at the time of\ninvention and addressed by the patent’; and the back-\nground knowledge, creativity, and common sense of the\nperson of ordinary skill.” ZUP, LLC v. Nash Mfg., Inc.,\n896 F.3d 1365, 1371 (Fed. Cir. 2018) (quoting Plantronics,\nInc. v. Aliph, Inc., 724 F.3d 1343, 1354 (Fed. Cir. 2013)).\nThe Board specifically noted that HP “brings in Nelson to\nprovide a more explicit teaching of ‘dictionary,’” Hewlett-\nPackard, 2017 WL 4349409, at *13, and that the motiva-\ntion to combine was premised on “the rationale a person\nhaving ordinary skill in the art would have had to turn to\nNelson after reading O’Brien when O’Brien allegedly\nteaches all the limitations of all claims challenged in\nGround 1,” id. at *9. The Board found that a person of\nordinary skill in the art would have looked to Nelson\nbecause Nelson is “well known,” the compression tech-\nniques taught in Nelson that were described as dictionary\nencoders “share striking similarities” to O’Brien’s com-\npression techniques, and O’Brien itself “suggests that a\nwide variety of adaptive compression algorithms could be\nused and encourages a person having ordinary skill in the\nart to turn to ‘well known’ algorithms such as Nelson’s.”\n\n\n\n 3 We limit our review to HP’s primary obviousness\nargument, which uses O’Brien to disclose every element of\nclaims 1–4, 8, and 28 and Nelson to demonstrate that\nO’Brien teaches a dictionary encoder.\n\fREALTIME DATA, LLC v. IANCU 11\n\n\n\nId. at *11. This is enough evidence to support a finding\nthat a person of ordinary skill in the art would have\nturned to Nelson, a well-known data compression text-\nbook, to better understand or interpret O’Brien’s compres-\nsion algorithms.\n II\n We now turn to whether the Board erred in finding\nthat O’Brien disclosed the “maintaining a dictionary”\nlimitation in independent claim 1. Realtime argues that\nthe Board erroneously failed to construe the term “main-\ntaining a dictionary” to include the requirement that the\ndictionary be retained during the entirety of the data\ncompression unless and until the number of entries in the\ndictionary exceeds a predetermined threshold, in which\ncase the dictionary is reset.\n We review the ultimate question of the proper con-\nstruction of a patent de novo, with any underlying fact\nfindings reviewed for substantial evidence. Teva Pharm.\nUSA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 838 (2015);\nPraxair Distrib., Inc. v. Mallinckrodt Hosp. Prods. IP Ltd.,\n890 F.3d 1024, 1031 (Fed. Cir. 2018) (citing HTC Corp. v.\nCellular Commc’ns Equip., LLC, 877 F.3d 1361, 1367\n(Fed. Cir. 2017)). While the words of a claim “are general-\nly given their ordinary and customary meaning,” a claim\nterm is read “not only in the context of the particular\nclaim in which the disputed term appears, but in the\ncontext of the entire patent, including the specification.”\nPhillips v. AWH Corp., 415 F.3d 1303, 1312–13\n(Fed. Cir. 2005) (en banc). Those claim construction\nprinciples are important even in an inter partes review\nproceeding like this one, in which the claims were proper-\nly given the “broadest reasonable interpretation” con-\n\f12 REALTIME DATA, LLC v. IANCU\n\n\n\n\nsistent with the specification. 4 In re Cuozzo Speed Techs.,\nLLC, 793 F.3d 1268, 1279 (Fed. Cir. 2015), aff’d sub nom.\nCuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016).\nThe Board is required to construe “only those terms . . .\nthat are in controversy, and only to the extent necessary\nto resolve the controversy.” Vivid Techs., Inc. v. Am. Sci.\n& Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).\n The Board did not expressly construe the phrase\n“maintaining a dictionary,” but found that O’Brien satis-\nfied this limitation because it disclosed all of the steps in\ndependent claim 4. As noted above, claim 4 depends from\nclaim 1 and recites:\n 4. The method of claim 1, wherein the step of\n maintaining a dictionary comprises the steps of:\n dynamically generating a new code word\n corresponding to a built data block string,\n if the built data block string does not\n match a unique data block string in the\n dictionary; and\n adding the new code word in the diction-\n ary.\n’812 patent col. 17 ll. 17–23. In other words, the Board\nfound that the steps outlined in dependent claim 4 were\nsufficient to satisfy the “maintaining a dictionary” limita-\ntion in independent claim 1.\n\n\n\n\n 4 This standard has recently changed. For petitions\nfiled on or after November 13, 2018, the Board will apply\nthe Phillips claim construction standard. See Changes to\nthe Claim Construction Standard for Interpreting Claims\nin Trial Proceedings Before the Patent Trial and Appeal\nBoard, 83 Fed. Reg. 51340 (Oct. 11, 2018) (to be codified\nat 37 C.F.R. pt. 42).\n\fREALTIME DATA, LLC v. IANCU 13\n\n\n\n The Board’s interpretation is supported by both the\nclaim language itself and the specification. The term\n“maintaining a dictionary” is not defined in claim 1, and\ndependent claim 4 is the first of the claims to lend mean-\ning to the phrase. More tellingly, the language of claim 4\ndirectly mimics the portion of the specification that teach-\nes that:\n the dictionary is dynamically maintained and up-\n dated during the encoding process by generating a\n new code word corresponding to a built data block\n string, if the built data block string does not\n match a unique data block string in the diction-\n ary; and then adding the new code word in the\n dictionary.\nId. at col. 3 ll. 31–36 (emphasis added). This passage,\nwith its “by” language, strongly suggests that the steps\noutlined in claim 4 are one way of “maintaining a diction-\nary,” as the Board concluded.\n Realtime does not contest that O’Brien discloses these\nsteps, but instead argues that because the claim recites\nthe word “comprising,” it does not foreclose the possibility\nof additional unstated limitations in the interpretation of\n“maintaining a dictionary.” Realtime notes that\n“‘[c]omprising’ is a term of art used in claim language\nwhich means that the named elements are essential, but\nother elements may be added and still form a construct\nwithin the scope of the claim.” Genentech, Inc. v. Chiron\nCorp., 112 F.3d 495, 501 (Fed. Cir. 1997). Thus, Realtime\nargues, the Board erred by failing to consider its proposed\nconstruction, which would add further requirements to\nsatisfy the “maintaining a dictionary” limitation.\n The word “comprising” does not mean that the claim\ncan be read to require additional unstated elements, only\nthat adding other elements to the device or method is not\nincompatible with the claim. Id. Realtime points to no\nlaw undermining the Board’s view in this case that the\n\f14 REALTIME DATA, LLC v. IANCU\n\n\n\n\nclaim elements introduced in dependent claim 4 with\n“comprising” language are properly understood as giving\ndetails sufficient to constitute a particular embodiment of\nthe more general “maintaining a dictionary” term of\nindependent claim 1. That view, as already noted above,\nis strongly supported by the specification.\n Realtime’s other arguments in support of its proposed\nconstruction do not alter our conclusion. Realtime points\nto the portion of the specification that teaches that “[i]n\nyet another aspect of the present invention, the dictionary\nis initialized during the encoding process if the number of\ncode words (e.g., dictionary indices) in the dictionary\nexceeds a predetermined threshold.” ’812 patent col. 3\nll. 37–40. We note that the specification contemplates\ninitializing (starting a new dictionary) only as a possible\nembodiment. Nowhere does the specification state or\nimply that this step is a mandatory part of the step of\n“maintaining a dictionary.” This is confirmed by depend-\nent claim 5, which states:\n 5. The method of claim 4, wherein the step of\n maintaining the dictionary further comprises the\n step of initializing the dictionary if the number of\n code words exceeds a predetermined threshold.\nId. at col. 17 ll. 24–27. The fact that claim 5 “further”\nadds this step indicates that this step was neither a\nnecessary element of claim 4 nor required in the step of\n“maintaining a dictionary” in independent claim 1. See\nPhillips, 415 F.3d at 1315 (“[T]he presence of a dependent\nclaim that adds a particular limitation gives rise to a\npresumption that the limitation in question is not present\nin the independent claim.”). Because the intrinsic evi-\ndence does not support Realtime’s proposed construction,\nRealtime has not demonstrated that the Board committed\nlegal error by failing to adopt it.\n\fREALTIME DATA, LLC v. IANCU 15\n\n\n\n CONCLUSION\n We conclude that the Board did not err in concluding\nthat the claims would have been obvious in view of a\nsingle reference. Additionally, the Board did not err in\nfinding that O’Brien disclosed the “maintaining a diction-\nary” limitation in independent claim 1. We therefore\naffirm.\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4357677/", "author_raw": "STOLL, Circuit Judge."}]} | DYK | TARANTO | STOLL | 1 | {"DYK": ", Circuit", "TARANTO": ", Circuit", "STOLL": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580424/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Realtime Data, LLC v. Iancu\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n REALTIME DATA, LLC, DBA IXO,\n Appellant\n\n v.\n\n ANDREI IANCU, UNDER SECRETARY OF\n COMMERCE FOR INTELLECTUAL PROPERTY\n AND DIRECTOR OF THE UNITED STATES\n PATENT AND TRADEMARK OFFICE,\n Intervenor\n ______________________\n\n 2018-1154\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2016-\n00783.\n ______________________\n\n Decided: January 10, 2019\n ______________________\n\n KAYVAN B. NOROOZI, Noroozi PC, Santa Monica, CA,\nargued for appellant.\n\n SARAH E. CRAVEN, Office of the Solicitor, United\nStates Patent and Trademark Office, Alexandria, VA,\nargued for intervenor. Also represented by THOMAS W.\nKRAUSE, JOSEPH MATAL, FARHEENA YASMEEN RASHEED.\n ______________________\n\f2 REALTIME DATA, LLC v. IANCU\n\n\n\n\n Before DYK, TARANTO, and STOLL, Circuit Judges.\nSTOLL, Circuit Judge.\n Hewlett Packard Enterprise Co., HP Enterprise Ser-\nvices, LLC, and Teradata Operations, Inc. (collectively,\n“HP”) sought inter partes review of claims 1–4, 8, 14–17,\n21, and 28 of U.S. Patent No. 6,597,812 (the ’812 patent)\nbefore the U.S. Patent and Trademark Office’s Patent\nTrial and Appeal Board. The Board instituted review\nand, in its final written decision, found that all of the\nchallenged claims would have been obvious over the prior\nart. Realtime Data, LLC, owner of the ’812 patent, ap-\npeals the Board’s decision. We affirm.\n BACKGROUND\n I\n The ’812 patent discloses “[s]ystems and methods for\nproviding lossless data compression and decompres-\nsion . . . [that] exploit various characteristics of run-length\nencoding, parametric dictionary encoding, and bit pack-\ning.” ’812 patent Abstract. Run-length encoding is a form\nof lossless data compression where a “run” of characters is\nreplaced with an identifier for each individual character\nand the number of times it is repeated. For example,\nusing run-length encoding, the input string\nAAABBBBBBCCCCAA could be represented as\n3A6B4C2A, which contains seven fewer characters.\n Dictionary encoding is a form of lossless data com-\npression that assigns a code word to a particular data\nstring, maps that code word to an index, and replaces\nevery matching data string with the corresponding code\nword. For example, the same input string described\nabove could be assigned the code word “EASY123,” which\ncontains eight fewer characters. This assignment would\nbe mapped into an index, or dictionary, so that every time\nthe input string AAABBBBBBCCCCAA appeared, it\nwould be replaced with EASY123.\n\fREALTIME DATA, LLC v. IANCU 3\n\n\n\n Claim 1, which combines run-length and dictionary\nencoding techniques, is illustrative of the challenged\nclaims:\n 1. A method for compressing input data compris-\n ing a plurality of data blocks, the method compris-\n ing the steps of:\n detecting if the input data comprises a\n run-length sequence of data blocks;\n outputting an encoded run-length se-\n quence, if a run-length sequence of data\n blocks is detected;\n maintaining a dictionary comprising a\n plurality of code words, wherein each code\n word in the dictionary is associated with a\n unique data block string;\n building a data block string from at least\n one data block in the input data that is\n not part of a run-length sequence;\n searching for a code word in the dictionary\n having a unique data block string associ-\n ated therewith that matches the built data\n block string; and\n outputting the code word representing the\n built data block string.\nId. at col. 16 l. 53–col. 17 l. 2.\n Claim 4 is relevant to the claim construction dispute\nraised by Realtime on appeal. The claim further limits\nthe “maintaining a dictionary” step and reads as follows:\n 4. The method of claim 1, wherein the step of\n maintaining a dictionary comprises the steps of:\n dynamically generating a new code word\n corresponding to a built data block string,\n\f4 REALTIME DATA, LLC v. IANCU\n\n\n\n\n if the built data block string does not\n match a unique data block string in the\n dictionary; and\n adding the new code word in the diction-\n ary.\nId. at col. 17 ll. 17–23.\n II\n In April 2016, HP petitioned for inter partes review of\nthe ’812 patent, alleging that claims 1–4, 8, 14–17, 21,\nand 28 would have been obvious under\n35 U.S.C. § 103(a). In particular, HP argued that claims\n 1\n\n1–4, 8, and 28 would have been obvious over U.S. Patent\nNo. 4,929,946 (“O’Brien”) in view of Nelson, a data com-\npression textbook, 2 and that claims 14–17 and 21 would\nhave been obvious over O’Brien in view of Nelson and\nU.S. Patent No. 4,558,302 (“Welch”).\n With respect to independent claim 1, HP argued that\nO’Brien disclosed the preamble, the “detecting” step, and\nthe first “outputting” step, and that O’Brien and Nelson\nboth individually disclosed the “maintaining” step, the\n“building” step, the “searching” step, and the second\n“outputting” step. For the “maintaining” and “searching”\nsteps, HP clarified that even though O’Brien did not use\nthe specific claim term “dictionary,” a person of ordinary\n\n\n\n 1 Because the issue date of the ’812 patent is Ju-\nly 22, 2003, and neither the ’812 patent nor the applica-\ntion from which it issued ever contained a claim with an\neffective filing date on or after March 16, 2013, the ver-\nsion of 35 U.S.C. § 103 that applies here is the one preced-\ning the changes made by the America Invents Act. See\nLeahy-Smith America Invents Act, Pub. L. No. 112-29,\n125 Stat. 284, 293, § 3(n) (2011).\n 2 Mark Nelson, The Data Compression Book (1992).\n\fREALTIME DATA, LLC v. IANCU 5\n\n\n\nskill in the art “would have recognized this and known, as\ntaught in Nelson, that O’Brien’s string compression is a\ndictionary algorithm.” Pet. Requesting Inter Partes\nReview, SAP Am. Inc. et al. v. Realtime Data LLC,\nIPR2016-00783, Paper 1 at 41 (P.T.A.B. Apr. 1, 2016).\n In its response, Realtime conceded that O’Brien’s\nstring compression was, in fact, dictionary encoding as\nrequired by the claims. Instead of challenging O’Brien’s\nteaching of dictionary encoding, Realtime primarily\nfocused its response on the “maintaining” step. Specifical-\nly, Realtime argued that O’Brien did not disclose “main-\ntaining a dictionary” because O’Brien generates a new\ndictionary for each data segment, while the ’812 patent\nprocesses an input data stream through a single diction-\nary that resets to its initial state only when full. Realtime\nalso argued that HP presented insufficient evidence of a\nmotivation to combine O’Brien and Nelson, and that HP\nattempted instead to sidestep this requirement by argu-\ning Nelson as an alternative to O’Brien. As Realtime\nnoted, “[i]ndeed, Petitioner and its declarant allege\nO’Brien in fact discloses all of the limitations of all claims\nchallenged in Ground 1.” Patent Owner Resp., Hewlett-\nPackard Enter. Co. v. Realtime Data LLC, IPR2016-\n00783, Paper 29 at 44 (P.T.A.B. Jan. 5, 2017) (emphasis in\noriginal).\n The Board agreed with Realtime’s statement, finding\nthat O’Brien discloses the “maintaining a dictionary”\nlimitation and every other limitation in independent\nclaim 1. While recognizing that there was a dispute as to\nthe construction of the phrase “maintaining a dictionary,”\nthe Board determined that no construction was necessary\nas O’Brien taught every step for “maintaining a diction-\nary” identified in dependent claim 4. The Board also\ndetermined that O’Brien teaches the limitations of claims\n1–4, 8, and 28.\n\f6 REALTIME DATA, LLC v. IANCU\n\n\n\n\n The Board next addressed why “a person having ordi-\nnary skill in the art would have had to turn to Nelson\nafter reading O’Brien when O’Brien allegedly teaches all\nthe limitations of all claims challenged in Ground 1.”\nHewlett-Packard Enter. Co. v. Realtime Data LLC,\nIPR2016-00783, 2017 WL 4349409, at *9 (P.T.A.B.\nSept. 28, 2017). The Board noted that HP’s primary\nobviousness argument established only that “Nelson\nmakes clear that O’Brien’s string encoding . . . is diction-\nary-based encoding” without using Nelson for the disclo-\nsure of a particular claim limitation. Id. at *12.\nAccording to the Board, HP’s other argument—that it\nwould have been obvious to a person of ordinary skill in\nthe art to substitute Nelson’s dictionary compression\ntechniques with O’Brien’s string compression—was an\n“argument[] in the alternative.” Id.\n Even though the Board agreed with HP’s primary ob-\nviousness argument—that O’Brien alone teaches every\nlimitation in claims 1–4, 8, and 28—the Board neverthe-\nless addressed the question of motivation to combine\nO’Brien in view of Nelson. The Board compared the\ncompression techniques in O’Brien and Nelson and found\nthat they “share striking similarities.” Id. at *11. The\nBoard also found that O’Brien “suggests that a wide\nvariety of adaptive compression algorithms could be used\nand encourages a person having ordinary skill in the art\nto turn to ‘well known’ algorithms such as Nelson’s algo-\nrithms for techniques of performing string compression in\nO’Brien’s system, which would be a simple substitution\nyielding predictable results.” Id. Thus, the Board con-\ncluded, “Petitioner has established by a preponderance of\nthe evidence that a person having ordinary skill in the art\nwould have been motivated to turn to Nelson after read-\ning O’Brien even though O’Brien teaches all the limita-\ntions of all claims challenged in ground 1.” Id. at *12.\n As to claims 14–17 and 21, the Board found that\nWelch taught the additional limitation that a software\n\fREALTIME DATA, LLC v. IANCU 7\n\n\n\nprogram be used to implement the claimed method. Id. at\n*21. Consequently, the Board held that claims 1–4, 8,\nand 28 would have been unpatentable under\n35 U.S.C. § 103 in view of O’Brien alone, or alternatively,\nin further view of Nelson, and claims 14–17 and 21 would\nhave been unpatentable under 35 U.S.C. § 103 in view of\nO’Brien, Nelson, and Welch. Realtime appeals. We have\njurisdiction under 28 U.S.C. § 1295(a)(4)(A).\n DISCUSSION\n Realtime makes two primary arguments on appeal:\n(1) that the Board erred in its determination that a person\nof ordinary skill in the art would have been motivated to\ncombine the teachings of O’Brien and Nelson; and (2) that\nthe Board erred by failing to construe the “maintaining a\ndictionary” limitation and in finding that O’Brien dis-\nclosed the “maintaining a dictionary” limitation. We\naddress these issues in turn.\n I\n An invention cannot be patented, “though the inven-\ntion is not identically disclosed or described as set forth in\nsection 102,” if, at the time of the invention, the differ-\nences between the claimed invention and the prior art\nwould have rendered the claimed invention “obvious” to a\nperson of ordinary skill in the art. 35 U.S.C. § 103(a). We\nhave long held that when a party claims that a combina-\ntion of references renders a patented invention obvious,\nthe “factfinder must further consider the factual questions\nof whether a person of ordinary skill in the art would be\nmotivated to combine those references.” Dome Patent L.P.\nv. Lee, 799 F.3d 1372, 1380 (Fed. Cir. 2015); see also KSR\nInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[A]\npatent composed of several elements is not proved obvious\nmerely by demonstrating that each of its elements was,\nindependently, known in the prior art.”). This require-\nment is necessary because “claimed discoveries almost of\nnecessity will be combinations of what, in some sense, is\n\f8 REALTIME DATA, LLC v. IANCU\n\n\n\n\nalready known,” and the mere existence of independent\nelements in the prior art does not in itself foreclose the\npossibility of an inventive combination. KSR,\n550 U.S. at 418–19.\n Here, HP’s primary argument to the Board was that\nall of the elements of claims 1–4, 8, and 28 were disclosed\nin O’Brien, a single reference. HP relied on Nelson simply\nto demonstrate that a person of ordinary skill in the art\nwould have understood that the string compression dis-\nclosed in O’Brien was, in fact, a type of dictionary encoder,\nthe terminology used in the ’812 patent. As both the\nBoard and Realtime recognized, HP also argued in the\nalternative that Nelson disclosed some of the elements in\nthe claims at issue.\n We conclude that, in this case, the Board was not re-\nquired to make any finding regarding a motivation to\ncombine given its reliance on O’Brien alone. Certainly,\nhad the Board relied on HP’s alternative argument, HP\nwould have been required to demonstrate a sufficient\nmotivation to combine the two references. In its primary\nargument, however, HP relied on Nelson merely to ex-\nplain that O’Brien’s encoder is a type of dictionary encod-\ner. In addition, Realtime conceded the point HP sought to\nuse Nelson to prove: that O’Brien disclosed a dictionary\nencoder. See Hewlett-Packard, 2017 WL 4349409, at *5\n(“At the outset, we note that Petitioner, Patent Owner,\nand their respective declarants all agree that O’Brien’s\nencoder is a type of dictionary encoder.”).\n Under these circumstances, the Board was free to\ncome to the very conclusion it reached: that O’Brien alone\ndisclosed every element of claims 1–4, 8, and 28. And\nbecause the Board did not rely on Nelson for the disclo-\nsure of a particular element or teaching, the Board had no\nobligation to find a motivation to combine O’Brien and\nNelson. While Realtime argues that the use of O’Brien as\na single anticipatory reference would have been more\n\fREALTIME DATA, LLC v. IANCU 9\n\n\n\nproperly raised under § 102, it is well settled that “a\ndisclosure that anticipates under § 102 also renders the\nclaim invalid under § 103, for ‘anticipation is the epitome\nof obviousness.’” Connell v. Sears, Roebuck & Co., 722\nF.2d 1542, 1548 (Fed. Cir. 1983) (quoting In re Fracalossi,\n681 F.2d 792, 794 (CCPA 1982)); cf. Wasica Fin. GmbH v.\nCont’l Auto. Sys., Inc., 853 F.3d 1272, 1278 n.3 (Fed. Cir.\n2017) (noting the Board’s conclusion that a prior art\nreference rendered certain claims obvious “by virtue of its\nanticipation of them”). The Board therefore did not err\nwhen it concluded that claim 1 was invalid under § 103\nbased on O’Brien alone.\n For this same reason, we are not persuaded by\nRealtime’s argument that the Board violated 35 U.S.C.\n§ 312(a)(3) or other notice requirements by relying on\nO’Brien alone. Section 312(a)(3) requires a petition to\nidentify “in writing and with particularity, each claim\nchallenged, the grounds on which the challenge to each\nclaim is based, and the evidence that supports the\ngrounds for the challenge to each claim.” § 312(a)(3). And\nwe have held that the Board may not rely on a basis for\ndecision unless the party adversely affected by such\nreliance had notice of the basis and an adequate oppor-\ntunity to address it. See SAS Inst. Inc. v. Complemen-\ntSoft, LLC, 825 F.3d 1341, 1351–52 (Fed. Cir. 2016)\n(citing authorities), rev’d on other grounds, SAS Inst. Inc.\nv. Iancu, 138 S. Ct. 1348 (2018).\n HP’s petition identified O’Brien as disclosing every el-\nement of claim 1. The sole purpose for which HP relied on\nNelson, to demonstrate that O’Brien disclosed a diction-\nary encoder, was conceded by Realtime. Realtime cannot\nnow argue that its own admissions, which obviated the\nneed for any of Nelson’s teachings, deprived it of notice or\notherwise foreclosed HP from arguing obviousness based\non O’Brien’s disclosures without Nelson. The Board’s\ndecision rested solely on the arguments and grounds\nproffered by HP in its petition, for which Realtime both\n\f10 REALTIME DATA, LLC v. IANCU\n\n\n\n\nhad notice and the opportunity to respond. Accordingly,\nwe conclude that the Board did not violate § 312(a)(3) or\nother notice requirements.\n In any event, even if the Board were required to make\na finding regarding a motivation to combine O’Brien with\nNelson, its finding in this case is supported by substantial\nevidence. 3 A motivation to combine may be found “explic-\nitly or implicitly in market forces; design incentives; the\n‘interrelated teachings of multiple patents’; ‘any need or\nproblem known in the field of endeavor at the time of\ninvention and addressed by the patent’; and the back-\nground knowledge, creativity, and common sense of the\nperson of ordinary skill.” ZUP, LLC v. Nash Mfg., Inc.,\n896 F.3d 1365, 1371 (Fed. Cir. 2018) (quoting Plantronics,\nInc. v. Aliph, Inc., 724 F.3d 1343, 1354 (Fed. Cir. 2013)).\nThe Board specifically noted that HP “brings in Nelson to\nprovide a more explicit teaching of ‘dictionary,’” Hewlett-\nPackard, 2017 WL 4349409, at *13, and that the motiva-\ntion to combine was premised on “the rationale a person\nhaving ordinary skill in the art would have had to turn to\nNelson after reading O’Brien when O’Brien allegedly\nteaches all the limitations of all claims challenged in\nGround 1,” id. at *9. The Board found that a person of\nordinary skill in the art would have looked to Nelson\nbecause Nelson is “well known,” the compression tech-\nniques taught in Nelson that were described as dictionary\nencoders “share striking similarities” to O’Brien’s com-\npression techniques, and O’Brien itself “suggests that a\nwide variety of adaptive compression algorithms could be\nused and encourages a person having ordinary skill in the\nart to turn to ‘well known’ algorithms such as Nelson’s.”\n\n\n\n 3 We limit our review to HP’s primary obviousness\nargument, which uses O’Brien to disclose every element of\nclaims 1–4, 8, and 28 and Nelson to demonstrate that\nO’Brien teaches a dictionary encoder.\n\fREALTIME DATA, LLC v. IANCU 11\n\n\n\nId. at *11. This is enough evidence to support a finding\nthat a person of ordinary skill in the art would have\nturned to Nelson, a well-known data compression text-\nbook, to better understand or interpret O’Brien’s compres-\nsion algorithms.\n II\n We now turn to whether the Board erred in finding\nthat O’Brien disclosed the “maintaining a dictionary”\nlimitation in independent claim 1. Realtime argues that\nthe Board erroneously failed to construe the term “main-\ntaining a dictionary” to include the requirement that the\ndictionary be retained during the entirety of the data\ncompression unless and until the number of entries in the\ndictionary exceeds a predetermined threshold, in which\ncase the dictionary is reset.\n We review the ultimate question of the proper con-\nstruction of a patent de novo, with any underlying fact\nfindings reviewed for substantial evidence. Teva Pharm.\nUSA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 838 (2015);\nPraxair Distrib., Inc. v. Mallinckrodt Hosp. Prods. IP Ltd.,\n890 F.3d 1024, 1031 (Fed. Cir. 2018) (citing HTC Corp. v.\nCellular Commc’ns Equip., LLC, 877 F.3d 1361, 1367\n(Fed. Cir. 2017)). While the words of a claim “are general-\nly given their ordinary and customary meaning,” a claim\nterm is read “not only in the context of the particular\nclaim in which the disputed term appears, but in the\ncontext of the entire patent, including the specification.”\nPhillips v. AWH Corp., 415 F.3d 1303, 1312–13\n(Fed. Cir. 2005) (en banc). Those claim construction\nprinciples are important even in an inter partes review\nproceeding like this one, in which the claims were proper-\nly given the “broadest reasonable interpretation” con-\n\f12 REALTIME DATA, LLC v. IANCU\n\n\n\n\nsistent with the specification. 4 In re Cuozzo Speed Techs.,\nLLC, 793 F.3d 1268, 1279 (Fed. Cir. 2015), aff’d sub nom.\nCuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016).\nThe Board is required to construe “only those terms . . .\nthat are in controversy, and only to the extent necessary\nto resolve the controversy.” Vivid Techs., Inc. v. Am. Sci.\n& Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).\n The Board did not expressly construe the phrase\n“maintaining a dictionary,” but found that O’Brien satis-\nfied this limitation because it disclosed all of the steps in\ndependent claim 4. As noted above, claim 4 depends from\nclaim 1 and recites:\n 4. The method of claim 1, wherein the step of\n maintaining a dictionary comprises the steps of:\n dynamically generating a new code word\n corresponding to a built data block string,\n if the built data block string does not\n match a unique data block string in the\n dictionary; and\n adding the new code word in the diction-\n ary.\n’812 patent col. 17 ll. 17–23. In other words, the Board\nfound that the steps outlined in dependent claim 4 were\nsufficient to satisfy the “maintaining a dictionary” limita-\ntion in independent claim 1.\n\n\n\n\n 4 This standard has recently changed. For petitions\nfiled on or after November 13, 2018, the Board will apply\nthe Phillips claim construction standard. See Changes to\nthe Claim Construction Standard for Interpreting Claims\nin Trial Proceedings Before the Patent Trial and Appeal\nBoard, 83 Fed. Reg. 51340 (Oct. 11, 2018) (to be codified\nat 37 C.F.R. pt. 42).\n\fREALTIME DATA, LLC v. IANCU 13\n\n\n\n The Board’s interpretation is supported by both the\nclaim language itself and the specification. The term\n“maintaining a dictionary” is not defined in claim 1, and\ndependent claim 4 is the first of the claims to lend mean-\ning to the phrase. More tellingly, the language of claim 4\ndirectly mimics the portion of the specification that teach-\nes that:\n the dictionary is dynamically maintained and up-\n dated during the encoding process by generating a\n new code word corresponding to a built data block\n string, if the built data block string does not\n match a unique data block string in the diction-\n ary; and then adding the new code word in the\n dictionary.\nId. at col. 3 ll. 31–36 (emphasis added). This passage,\nwith its “by” language, strongly suggests that the steps\noutlined in claim 4 are one way of “maintaining a diction-\nary,” as the Board concluded.\n Realtime does not contest that O’Brien discloses these\nsteps, but instead argues that because the claim recites\nthe word “comprising,” it does not foreclose the possibility\nof additional unstated limitations in the interpretation of\n“maintaining a dictionary.” Realtime notes that\n“‘[c]omprising’ is a term of art used in claim language\nwhich means that the named elements are essential, but\nother elements may be added and still form a construct\nwithin the scope of the claim.” Genentech, Inc. v. Chiron\nCorp., 112 F.3d 495, 501 (Fed. Cir. 1997). Thus, Realtime\nargues, the Board erred by failing to consider its proposed\nconstruction, which would add further requirements to\nsatisfy the “maintaining a dictionary” limitation.\n The word “comprising” does not mean that the claim\ncan be read to require additional unstated elements, only\nthat adding other elements to the device or method is not\nincompatible with the claim. Id. Realtime points to no\nlaw undermining the Board’s view in this case that the\n\f14 REALTIME DATA, LLC v. IANCU\n\n\n\n\nclaim elements introduced in dependent claim 4 with\n“comprising” language are properly understood as giving\ndetails sufficient to constitute a particular embodiment of\nthe more general “maintaining a dictionary” term of\nindependent claim 1. That view, as already noted above,\nis strongly supported by the specification.\n Realtime’s other arguments in support of its proposed\nconstruction do not alter our conclusion. Realtime points\nto the portion of the specification that teaches that “[i]n\nyet another aspect of the present invention, the dictionary\nis initialized during the encoding process if the number of\ncode words (e.g., dictionary indices) in the dictionary\nexceeds a predetermined threshold.” ’812 patent col. 3\nll. 37–40. We note that the specification contemplates\ninitializing (starting a new dictionary) only as a possible\nembodiment. Nowhere does the specification state or\nimply that this step is a mandatory part of the step of\n“maintaining a dictionary.” This is confirmed by depend-\nent claim 5, which states:\n 5. The method of claim 4, wherein the step of\n maintaining the dictionary further comprises the\n step of initializing the dictionary if the number of\n code words exceeds a predetermined threshold.\nId. at col. 17 ll. 24–27. The fact that claim 5 “further”\nadds this step indicates that this step was neither a\nnecessary element of claim 4 nor required in the step of\n“maintaining a dictionary” in independent claim 1. See\nPhillips, 415 F.3d at 1315 (“[T]he presence of a dependent\nclaim that adds a particular limitation gives rise to a\npresumption that the limitation in question is not present\nin the independent claim.”). Because the intrinsic evi-\ndence does not support Realtime’s proposed construction,\nRealtime has not demonstrated that the Board committed\nlegal error by failing to adopt it.\n\fREALTIME DATA, LLC v. IANCU 15\n\n\n\n CONCLUSION\n We conclude that the Board did not err in concluding\nthat the claims would have been obvious in view of a\nsingle reference. Additionally, the Board did not err in\nfinding that O’Brien disclosed the “maintaining a diction-\nary” limitation in independent claim 1. We therefore\naffirm.\n AFFIRMED\n[END_CASE]",
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4,580,831 | WESTERNGECO L.L.C., Plaintiff-Cross-Appellant v. ION GEOPHYSICAL CORPORATION, Defendant-Appellant | Westerngeco L.L.C. v. Ion Geophysical Corp. | 2019-01-11 | 2013-1527; 2014-1121; 2014-1526; 2014-1528 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Wallach, Hughes", "parties": "", "opinions": [{"author": "DYK, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n WESTERNGECO L.L.C.,\n Plaintiff-Cross-Appellant\n\n v.\n\n ION GEOPHYSICAL CORPORATION,\n Defendant-Appellant\n ______________________\n\n 2013-1527, 2014-1121, 2014-1526, 2014-1528\n ______________________\n\n Appeals from the United States District Court for the\nSouthern District of Texas in No. 4:09-cv-01827, Judge\nKeith P. Ellison.\n ______________________\n\n Decided: January 11, 2019\n ______________________\n\n JOHN C. O'QUINN, Kirkland & Ellis LLP, Washington,\nDC, argued for plaintiff-cross-appellant. Also represented\nby GREGG F. LOCASCIO, WILLIAM H. B URGESS; TIMOTHY\nGILMAN, LESLIE M. SCHMIDT, New York, NY; LEE LANDA\nKAPLAN, Smyser, Kaplan & Veselka, LLP, Houston, TX.\n\n DAVID I. BERL, Williams & Connolly LLP, Washington,\nDC, argued for defendant-appellant. Also represented by\nKANNON K. SHANMUGAM, MASHA HANSFORD, ANDREW\nCHARLES MCBRIDE, JAMES MATTHEW RICE; FRANK\nPORCELLI, KEVIN SU, Fish & Richardson, PC, Boston, MA;\nJACKOB BEN-EZRA, B AILEY KATHLEEN HARRIS, DANIELLE J.\n\f2 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nHEALEY, BRIAN GREGORY S TRAND, Houston, TX; FRANCIS\nJ. ALBERT, OLGA I. MAY, San Diego, CA; JUSTIN BARNES,\nTroutman Sanders LLP, San Diego, CA.\n ______________________\n\n Before DYK, WALLACH, and HUGHES, Circuit Judges.\nDYK, Circuit Judge.\n This case returns to us from the Supreme Court.\nWesternGeco LLC v. ION Geophysical Corp., 138 S. Ct.\n2129 (2018) (“WesternGeco III”). The sole claim remanded\nto us by the Supreme Court is the lost profits award. The\nSupreme Court held “that WesternGeco’s damages award\nfor lost profits was a permissible domestic application of\n[35 U.S.C.] § 284,” id. at 2139, reversing our decision in\nWesternGeco LLC v. ION Geophysical Corp., 791 F.3d\n1340, 1349–52 (Fed. Cir. 2015), (“WesternGeco I”).1 But\nthe Supreme Court did not decide other challenges to the\nlost profits award. In light of the Supreme Court’s deci-\nsion and the intervening invalidation of four of the five\nasserted patent claims that could support the lost profits\naward, we remand to the district court.\n BACKGROUND\n This case involves a patent infringement suit brought\nby WesternGeco L.L.C. (“WesternGeco”) against ION\nGeophysical Corp. (“ION”) for infringement of claims 18,\n19, and 23 of U.S. Patent No. 7,293,520, claim 15 of U.S.\nPatent No. 7,162,967, and claim 15 of U.S. Patent No.\n\n\n\n 1 Our decision in WesternGeco I was vacated on\nother grounds by WesternGeco LLC v. ION Geophysical\nCorp., 136 S. Ct. 2486 (2016), but was reinstated in rele-\nvant part on remand by WesternGeco LLC v. ION Geo-\nphysical Corp., 837 F.3d 1358 (Fed. Cir. 2016)\n(“WesternGeco II”).\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 3\n\n\n\n7,080,607 (“Bittleston patents”), as well as claim 14 of\nU.S. Patent No. 6,691,038 (“Zajac patent”).\n The patented technology in this case relates to marine\nseismic surveys for discovering oil and gas deposits be-\nneath the ocean floor. The patent claims are directed to\ntechnology for controlling the movement and positioning\nof long streamers towed by a ship. Sensors are located\nalong the length of these streamers, and they detect\nreturning sound waves that are bounced off of the ocean\nfloor by an airgun. The collected data is then used to\ncreate a map of the ocean’s subsurface geology. Control-\nling the positioning of the various streamers in the array\nis important to the quality of the maps generated, which,\nin turn, is important to identifying drilling locations for\noil or gas.\n Both WesternGeco and ION domestically manufac-\nture devices, the Q-Marine and DigiFin respectively, for\nsteering streamers in marine seismic surveys. Western-\nGeco does not sell its device, instead using it to perform\nsurveys abroad for oil companies. ION does not perform\nsurveys, instead supplying its device to customers who\nperform the surveys abroad. This case does not involve\nany question as to lost profits from domestic surveys.\n In 2009, WesternGeco sued ION for patent infringe-\nment based on ION’s sales of its DigiFin devices to West-\nernGeco’s competitors in the marine seismic survey\nmarket. After a jury trial, the asserted patent claims were\nfound to be not invalid, and ION was found to have in-\nfringed all of the asserted patent claims under 35 U.S.C.\n§§ 271(f)(1) and (2). The jury awarded WesternGeco a\nreasonable royalty of $ 12.5 million and lost profits of\n$ 93.4 million, but declined to award WesternGeco en-\nhanced damages for willful infringement. The lost profits\naward was based on 10 surveys, which, according to\nWesternGeco, it would have won “but-for” ION’s sales of\nits DigiFin device to WesternGeco’s competitors. West-\n\f4 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nernGeco argues that without the patented technology\nembodied in the device, ION’s customers would not have\nbeen able to win the bids for the 10 surveys at issue.\n In WesternGeco I we reversed the lost profits award as\nbeing based on an unauthorized extraterritorial applica-\ntion of the patent laws. Judge Wallach dissented on this\npoint. 791 F.3d at 1349–52, 1354–64. We unanimously\naffirmed the district court’s refusal to award enhanced\ndamages for willful infringement. WesternGeco I, 791 F.3d\nat 1353–54. WesternGeco petitioned for certiorari, which\nthe Supreme Court granted, vacated our original decision\nin WesternGeco I, and remanded for further proceedings\nconsistent with its decision in Halo Elecs., Inc. v. Pulse\nElecs., Inc., 136 S. Ct. 1923, 1935–36 (2016). We reinstat-\ned our earlier opinion, including reversal of the lost prof-\nits award, but we vacated the district court’s denial of\nenhanced damages and remanded for further considera-\ntion in light of Halo. WesternGeco II, 837 F.3d at 1361–64.\n On remand, WesternGeco sought $ 43.6 million in en-\nhanced damages, and the district court awarded West-\nernGeco $ 5 million in enhanced damages. The parties\nthen entered into a stipulated “Final Judgment pursuant\nto Fed. R. Civ. P. 58.” The stipulation noted that the\nparties had agreed to the reasonable royalty amount and\nthat ION had paid the full amount on November 25, 2016.\nBoth parties agreed not to appeal the enhanced damages\naward and provided a schedule for payment of the en-\nhanced damages award. The only item exempt from the\nstipulation was the lost profits award, which Western-\nGeco had petitioned for certiorari, requesting review of\nour decision on the lost profits award. Neither party\nappealed the stipulated final judgment.\n The petition was granted with respect to the lost prof-\nits award, and in WesternGeco III, the Supreme Court\nreversed our decision on lost profits, holding that “West-\nernGeco’s damages award for lost profits [under 35 U.S.C.\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 5\n\n\n\n§ 271(f)(2)] was a permissible domestic application of\n§ 284,” 138 S. Ct. at 2139, “as it was ION’s domestic act of\nsupplying the components that infringed WesternGeco’s\npatents,” id. at 2138. The Supreme Court also noted that\n“[i]n reaching this holding, we do not address the extent\nto which other doctrines, such as proximate cause, could\nlimit or preclude damages in particular cases.” Id. at 2139\nn.3. The Court then remanded the case to us “for further\nproceedings consistent with this opinion.” Id. at 2139.\n In December 2015, the United States Patent and\nTrademark Office’s Patent Trial and Appeal Board\n(“PTAB”) held four of the six asserted patent claims—’520\npatent claims 18 and 19, ’967 patent claim 15, and ’607\npatent claim 15—unpatentable. See WesternGeco LLC v.\nION Geophysical Corp., 889 F.3d 1308, 1331 (Fed. Cir.\n2018) (“WesternGeco IPR”). While the case was pending in\nthe Supreme Court, we affirmed the PTAB’s unpatenta-\nbility determination of these four claims. Id. Thus, the\nonly asserted claims that remain are ’520 patent claim 23\nand ’038 patent claim 14, and it is uncontested that only\n’520 patent claim 23 may now support the lost profits\naward.\n DISCUSSION\n On remand from the Supreme Court, two issues re-\nmain for us to resolve: (1) the impact of the intervening\ninvalidation of four of the six asserted patent claims on\nthe fully paid reasonable royalty award, and (2) the\nimpact of the invalidation of the four claims on the lost\nprofits award and ION’s argument (presented in its\noriginal appeal) that “Panduit cannot be satisfied because\nION and [WesternGeco] do not compete in the market-\nplace.” ION Open. Br. 56.\n I. Reasonable Royalty Award\n ION challenges the fully paid and satisfied reasonable\nroyalty award based on subsequent invalidation of a\n\f6 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nnumber of WesternGeco’s asserted patent claims. See\nWesternGeco IPR, 889 F.3d at 1331. ION argues that the\ncalculation of the reasonable royalty under Georgia-\nPacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116,\n1120 (S.D.N.Y. 1970), would be affected by the invalida-\ntion of four of the six asserted patent claims, and there-\nfore a new trial is required. For support, ION frames the\ndecision in Fresenius USA, Inc. v. Baxter International,\nInc., 721 F.3d 1330 (Fed. Cir. 2013) as holding that a\njudgment cannot be final for purposes of intervening\npatent invalidations if any part of the litigation remains\npending, and that here the lost profits award continues to\nbe litigated and is not final.\n We disagree. Fresenius only applies where a judgment\nis not final. Id. at 1340–41 & n.9; see also Fresenius USA,\nInc. v. Baxter Int’l, Inc., 733 F.3d 1369, 1371 (Fed. Cir.\n2013) (Dyk, J., concurring in denial of rehearing en banc).\nTo be sure, finality under Fresenius requires that “the\nlitigation must be entirely concluded so that [the] cause of\naction [against the infringer] was merged into a final\njudgment . . . one that ends the litigation on the merits\nand leaves nothing for the court to do but execute the\njudgment.” 721 F.3d at 1341 (alterations in original)\n(quoting Mendenhall v. Barber–Greene Co., 26 F.3d 1573,\n1580 (Fed. Cir. 1994); see ePlus, Inc. v. Lawson Software,\nInc., 789 F.3d 1349, 1358 (Fed. Cir. 2015). But Fresenius\nmade clear that it does not allow reopening of a satisfied\nand unappealable final judgment. 721 F.3d at 1340 (“As\nthe Supreme Court’s decision in Moffitt made clear, ‘[i]t is\na mistake to suppose . . . that . . . moneys recovered on\njudgments in suits . . . might be recovered back [after a\npatent is cancelled]. The title to these moneys does not\ndepend upon the patent, but upon . . . the judgment of the\ncourt.’” (alterations in original) (quoting Moffitt v. Garr,\n66 U.S. 273, 283 (1861)); see Pennsylvania v. Wheeling &\nBelmont Bridge Co., 59 U.S. 421, 431 (1855).\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 7\n\n\n\n The particular facts of this case establish that the\nreasonable royalty award constitutes a fully satisfied and\nunappealable final judgment such that the subsequent\ninvalidation of asserted patent claims does not support\nreopening. Here, ION and WesternGeco entered into a\ncompromise agreement resolving all of the issues in the\ncase except for the lost profits award. They stipulated to a\n“Final Judgment pursuant to Fed. R. Civ. P. 58,” and ION\nfurther manifested assent to the finality of the judgment\nas to the reasonable royalty award by not appealing the\njudgment and completing its payments under the agree-\nment. The parties’ agreement was reflected in a joint\nmotion filed in June 2017 that resolved all of the issues\nexcept for lost profits, although the IPR decisions holding\nthat four of the six asserted patent claims were unpatent-\nable had issued in December 2015. In these unique cir-\ncumstances, it is clear that the reasonable royalty and\nenhanced damages awards were agreed to by the parties\nand subject to an unappealable final judgment, which was\nsatisfied and paid in full by ION to WesternGeco. ION\ncannot now reopen the agreed and fully paid unappeala-\nble final judgment on the reasonable royalty based on the\nsubsequent invalidation of a subset of asserted patent\nclaims.\n II. Lost Profits\n ION argues that, despite the Supreme Court’s deci-\nsion in WesternGeco III, we should either hold that lost\nprofits are not recoverable in this case or remand for a\nnew trial.\n First, ION contends that the district court erred when\nit denied ION’s renewed motion for judgment as a matter\nof law (“JMOL”) on the theory that WesternGeco is not\nentitled to lost profits based on a Panduit theory of but-\nfor causation because ION and WesternGeco are not\n“direct competitors.” ION sells only devices and Western-\nGeco sells only surveys. According to ION, because West-\n\f8 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nernGeco and ION do not compete in the same market, lost\nprofits in the surveys are not recoverable. For legal sup-\nport, ION relies on a statement from Rite-Hite Corp. v.\nKelley Co., 56 F.3d 1538 (Fed. Cir. 1995) (en banc) that\n“the patentee must show a reasonable probability that,\n‘but for’ the infringement, it would have made the sales\nthat were made by the infringer.” Id. at 1545 (emphasis\nadded). ION argues that the emphasized language estab-\nlished a “direct competition” requirement between the\npatentee and alleged infringer. ION also relies on our\ndecision in BIC Leisure Products, Inc. v. Windsurfing\nInternational Inc., 1 F.3d 1214 (Fed. Cir. 1993), that “[t]he\nPanduit test . . . operates under an inherent assumption\n. . . that the patent owner and the infringer sell products\nsufficiently similar to compete against each other in the\nsame market segment.” Id. at 1217–20.\n We are not convinced. In context, the statement from\nRite-Hite was addressing the requirement of “but-for”\ncausation to recover lost profits, not imposing a require-\nment of direct competition between the patentee and\nalleged infringer that was neither at issue in the case nor\nfurther discussed in the opinion. See 56 F.3d at 1545. BIC\nclearly focused the inquiry on whether the patent owner’s\nand the infringer’s products are adequate substitutes for\nconsumers in a particular market. 1 F.3d at 1219. West-\nernGeco’s and ION’s devices competed by performing the\nsame types of functions for surveys. And there was suffi-\ncient evidence in the record for the jury to conclude that\nthe products did compete—i.e., that consumers in the\nsurveying market (oil companies) considered Western-\nGeco’s Q-Marine device and ION’s DigiFin device to be\nsubstitutes for their surveying needs (i.e., that the prod-\nucts competed in the same market). See, e.g., J.A. 3791:1–\n23; 7006; 7135.\n To be sure, the fact that ION sells only devices while\nWesternGeco only sells surveys may be relevant to the\ncomputation of lost profits. WesternGeco had two catego-\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 9\n\n\n\nries of lost profits: the profits attributable to providing the\npatented device and the profits attributable to providing\nother aspects of the surveys (e.g., the ship for towing the\nstreamers). “[A]pportionment is required even for non-\nroyalty forms of damages.” Ericsson, Inc. v. D-Link Sys.,\nInc., 773 F.3d 1201, 1226 (Fed. Cir. 2014). If the applica-\ntion of the Panduit factors does not result in the separa-\ntion of profits attributable to the patented device and the\nprofits attributable to providing other aspects of the\nsurveys (e.g., the ship for towing the streamers), it ap-\npears that apportionment is necessary. 2\n This apportionment argument was not made in the\nsupplemental briefing and was raised for the first time at\noral argument. We conclude that the argument was\nwaived on this appeal. However, if the district court\norders a new trial on damages, ION may present argu-\nments concerning apportionment at the new trial.\n ION’s second argument is that the lost profits award\ncannot be sustained due to the intervening invalidation of\nfour of the five asserted Bittleston patent claims. Here,\nthe jury found all of the asserted claims to be infringed\nand made a single lost profits award. But four of the five\nclaims relied on to support lost profits liability have since\nbeen eliminated, and now the only remaining claim that\ncould support the lost profits award is ’520 patent claim\n23, a dependent device claim. The jury instructions and\nverdict form did not instruct the jury to award damages\nbased separately on infringement of each of the asserted\nclaims, and the jury did not do so.\n\n\n 2 See Mentor Graphics Corp. v. EVE-USA, Inc., 851\nF.3d 1275, 1287–88 (Fed. Cir. 2017) (holding that “satis-\nfaction of the Panduit factors satisifie[d] principles of\napportionment” where, “on the undisputed facts of this\nrecord,” it was clear the plaintiff’s damages were “tied to\nthe worth of its patented features”).\n\f10 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\n The jury could have rested its award on infringement\nof a now-invalidated claim, which cannot be sustained on\nreview. The general rule is that when a “jury was told it\ncould rely on any of two or more independent legal theo-\nries, one of which was defective,” the general verdict must\nbe set aside. i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d\n831, 849–50 (Fed. Cir. 2010) (citing Walther v. Lone Star\nGas Co., 952 F.2d 119, 126 (5th Cir. 1992)), aff’d, 564 U.S.\n91 (2011); see Northpoint Tech., Ltd. v. MDS Am., Inc.,\n413 F.3d 1301, 1311–12 (Fed. Cir. 2005); United N.Y. &\nN.J. Sandy Hook Pilots Ass’n v. Halecki, 358 U.S. 613,\n619 (1959) (“[A] new trial will be required, for there is no\nway to know that the invalid [legal theory] was not the\nsole basis for the verdict.”); Maryland v. Baldwin, 112\nU.S. 490, 493 (1884). We have recognized such a rule “[i]n\na situation—such as this one—where the jury rendered a\nsingle verdict on damages, without breaking down the\ndamages attributable to each patent,” and at least one of\nthe patent claims was held to be defective. Verizon Servs.\nCorp. v. Vonage Holdings Corp., 503 F.3d 1295, 1310\n(Fed. Cir. 2007) (citing Memphis Cmty. Sch. Dist. v.\nStachura, 477 U.S. 299, 312 (1986)); see Accentra, Inc. v.\nStaples, Inc., 500 F. App’x 922, 931 (Fed. Cir. 2013).\n But we do not think a new trial is automatically re-\nquired here if the jury must have found the technology\ncovered by ’520 patent claim 23 was essential for perform-\ning the surveys. In other words, the award can be sus-\ntained if there was undisputed evidence that the\ntechnology covered by ’520 patent claim 23 was necessary\nto perform the surveys. In this area we apply a harmless-\nness analysis similar to our approach in the case of erro-\nneous jury instructions. See Avid Tech., Inc. v. Harmonic,\nInc., 812 F.3d 1040, 1047 (Fed. Cir. 2016) (“[T]he error in\nthe instruction governing this central dispute at trial\nwould be harmless only if a reasonable jury would have\nbeen required by the evidence to find non-infringement\neven without the error.”).\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 11\n\n\n\n WesternGeco argues that both parties’ damages ex-\nperts informed the jury that infringement of any one of\nthe Bittleston patent claims would support the full\namount of the lost profits award. It cites to ION’s own\nexpert, Mr. Gunderson. He testified that he “assumed\nthat . . . the patents are not found to be invalid and that—\nthat there is infringement that is occurring on at least one\nvalid claim,” “one of the base assumptions” for damages\nexperts. WesternGeco Open. Suppl. Br. 15 (citing Trial Tr.\nat 4655:12–4656:3, WesternGeco LLC v. ION Geophysical\nCorp., 953 F. Supp. 2d 731 (S.D. Tex. 2013), ECF No.\n507). WesternGeco reads too much into this testimony.\nMr. Gunderson was merely identifying the basic assump-\ntion of his patent damages calculations, and his testimony\nwas directed to showing that WesternGeco was not enti-\ntled to the claimed lost profits for infringement based on\nany of the patents. See, e.g., Trial Tr. at 4658, 4664, 4736,\nECF No. 507. We do not interpret this testimony as\nsupporting the theory that the entirety of the lost profits\ncould be supported by infringement of any one Bittleston\npatent claim.\n WesternGeco also relies on its own expert, Mr. Sims.\nHe testified that Bittleston’s lateral steering technology\nwas required to perform surveys and that “my under-\nstanding is that the benefits would be attributable to each\nof the [Bittleston] patents because each of the patents\nwould prohibit ION from being able to sell and supply\nand, therefore, the contractors from being able to use the\nlateral steering technology.” WesternGeco Open. Supp.\nBr. 14–15 (citing Trial Tr. at 2661:13–2662:6, ECF No.\n497).\n But it is clear that Sims was simply making an as-\nsumption rather than making an independent determina-\ntion the technology represented in the claims was\nnecessary to perform the surveys. See, e.g., Trial Tr. at\n2386:2–7, ECF No. 474. Sims was a damages expert. He\ndisclaimed knowledge as to the technical aspects, and\n\f12 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nexplicitly relied on others to support his assumption that\ninfringement of any one of the Bittleston patent claims\nwould have been necessary to perform the 10 surveys at\nissue in the lost profits award. See, e.g., Trial Tr. at\n2378:24–25 (“I confirmed with Mr. Walker, that there was\na requirement for lateral steering”), 2386, ECF No. 474;\nTrial Tr. at 2657–58, ECF No. 497. Sims testified that he\nrelied on Mr. Walker for help in identifying surveys where\nthe patented technology was required, but Mr. Walker\ndisclaimed any knowledge as to the scope of the patents.\nSee Trial Tr. at 1760–61, ECF No. 453. Thus, this testi-\nmony cannot support the jury award on lost profits.\n WesternGeco has also not cited to any other specific\ntestimony that infringement of ’520 patent claim 23 was\nnecessary to perform the 10 surveys at issue. Instead, at\noral argument, WesternGeco argued that the jury was\ninformed generally that the lateral steering technology\nwas required for the surveys at issue and that claim 23\ncovers part of that technology. But lateral steering tech-\nnology was also reflected in the four other, now-invalid,\nasserted claims—’520 patent claims 18 and 19, ’967\npatent claim 15, and ’607 patent claim 15. For example,\nnow-invalid ’520 patent claim 18 recites:\n An apparatus comprising:\n (a) an array of streamers each having a plu-\n rality of streamer positioning devices there\n along;\n (b) a control system configured to use a control\n mode selected from a feather angle mode, a\n turn control mode, a streamer separation\n mode, and two or more of these modes. ’520\n Claim 18.\nAnd now-invalid ’520 patent claim 19 recites:\n The apparatus of claim 18 wherein the control\n mode is the feather angle mode, and the control-\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 13\n\n\n\n ling comprises the control system attempting to\n keep each streamer in a straight line offset from a\n towing direction by a feather angle.\nThe only surviving claim, ’520 patent claim 23, recites:\n The apparatus of claim 18 wherein the towing\n comprises ending one pass, turning a towing ves-\n sel having the streamers attached thereto while\n throwing out the streamers before beginning an-\n other pass, with the control mode in the turn con-\n trol mode during the turning and throwing out.\nTo sustain the lost profits award, the record must estab-\nlish that there was no dispute that the technology covered\nby claim 23, independent of the technology covered by the\nnow-invalid claims (e.g., ’520 patent claim 18 and 19), was\nrequired to perform the surveys at issue. This determina-\ntion must be made on the present record.\n Because of inadequate briefing on this issue prior to\noral argument, 3 and because the district court is in a\nbetter position to consider the issue in the first instance,\nwe remand to the district court to determine whether a\nnew trial on lost profit damages is required. See Verizon,\n503 F.3d at 1310; DDR Holdings, LLC v. Hotels.com, L.P.,\n773 F.3d 1245, 1262 (Fed. Cir. 2014). The district court\nmay deny a new trial on lost profits if, but only if, it\nconcludes that WesternGeco established at trial with\nundisputed evidence that ’520 patent claim 23 covers\ntechnology necessary to perform the surveys upon which\nthe lost profits award is based.\n\n\n\n\n 3 The parties subsequently filed Fed. R. App. P.\n28(j) letters addressing where in the record the jury was\ninformed that the technology covered by ’520 patent claim\n23 was necessary to perform the surveys at issue.\n\f14 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\n CONCLUSION\n For the foregoing reasons, we reject ION’s challenge\nto the reasonable royalty award and remand to the dis-\ntrict court for further proceedings as to the lost profits.\nWe also reinstate sections I, II, and IV of our decision in\nWesternGeco I and sections I and II of our decision in\nWesternGeco II, which were not affected by either the\ninitial vacatur and remand from the Supreme Court, 136\nS. Ct. 2486 (2016), or the Supreme Court’s subsequent\ndecision in WesternGeco III.\n AFFIRMED-IN-PART, VACATED-IN-PART, AND\n REMANDED\n COSTS\n No costs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358084/", "author_raw": "DYK, Circuit Judge."}]} | DYK | WALLACH | HUGHES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580831/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: WESTERNGECO L.L.C., Plaintiff-Cross-Appellant v. ION GEOPHYSICAL CORPORATION, Defendant-Appellant\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n WESTERNGECO L.L.C.,\n Plaintiff-Cross-Appellant\n\n v.\n\n ION GEOPHYSICAL CORPORATION,\n Defendant-Appellant\n ______________________\n\n 2013-1527, 2014-1121, 2014-1526, 2014-1528\n ______________________\n\n Appeals from the United States District Court for the\nSouthern District of Texas in No. 4:09-cv-01827, Judge\nKeith P. Ellison.\n ______________________\n\n Decided: January 11, 2019\n ______________________\n\n JOHN C. O'QUINN, Kirkland & Ellis LLP, Washington,\nDC, argued for plaintiff-cross-appellant. Also represented\nby GREGG F. LOCASCIO, WILLIAM H. B URGESS; TIMOTHY\nGILMAN, LESLIE M. SCHMIDT, New York, NY; LEE LANDA\nKAPLAN, Smyser, Kaplan & Veselka, LLP, Houston, TX.\n\n DAVID I. BERL, Williams & Connolly LLP, Washington,\nDC, argued for defendant-appellant. Also represented by\nKANNON K. SHANMUGAM, MASHA HANSFORD, ANDREW\nCHARLES MCBRIDE, JAMES MATTHEW RICE; FRANK\nPORCELLI, KEVIN SU, Fish & Richardson, PC, Boston, MA;\nJACKOB BEN-EZRA, B AILEY KATHLEEN HARRIS, DANIELLE J.\n\f2 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nHEALEY, BRIAN GREGORY S TRAND, Houston, TX; FRANCIS\nJ. ALBERT, OLGA I. MAY, San Diego, CA; JUSTIN BARNES,\nTroutman Sanders LLP, San Diego, CA.\n ______________________\n\n Before DYK, WALLACH, and HUGHES, Circuit Judges.\nDYK, Circuit Judge.\n This case returns to us from the Supreme Court.\nWesternGeco LLC v. ION Geophysical Corp., 138 S. Ct.\n2129 (2018) (“WesternGeco III”). The sole claim remanded\nto us by the Supreme Court is the lost profits award. The\nSupreme Court held “that WesternGeco’s damages award\nfor lost profits was a permissible domestic application of\n[35 U.S.C.] § 284,” id. at 2139, reversing our decision in\nWesternGeco LLC v. ION Geophysical Corp., 791 F.3d\n1340, 1349–52 (Fed. Cir. 2015), (“WesternGeco I”).1 But\nthe Supreme Court did not decide other challenges to the\nlost profits award. In light of the Supreme Court’s deci-\nsion and the intervening invalidation of four of the five\nasserted patent claims that could support the lost profits\naward, we remand to the district court.\n BACKGROUND\n This case involves a patent infringement suit brought\nby WesternGeco L.L.C. (“WesternGeco”) against ION\nGeophysical Corp. (“ION”) for infringement of claims 18,\n19, and 23 of U.S. Patent No. 7,293,520, claim 15 of U.S.\nPatent No. 7,162,967, and claim 15 of U.S. Patent No.\n\n\n\n 1 Our decision in WesternGeco I was vacated on\nother grounds by WesternGeco LLC v. ION Geophysical\nCorp., 136 S. Ct. 2486 (2016), but was reinstated in rele-\nvant part on remand by WesternGeco LLC v. ION Geo-\nphysical Corp., 837 F.3d 1358 (Fed. Cir. 2016)\n(“WesternGeco II”).\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 3\n\n\n\n7,080,607 (“Bittleston patents”), as well as claim 14 of\nU.S. Patent No. 6,691,038 (“Zajac patent”).\n The patented technology in this case relates to marine\nseismic surveys for discovering oil and gas deposits be-\nneath the ocean floor. The patent claims are directed to\ntechnology for controlling the movement and positioning\nof long streamers towed by a ship. Sensors are located\nalong the length of these streamers, and they detect\nreturning sound waves that are bounced off of the ocean\nfloor by an airgun. The collected data is then used to\ncreate a map of the ocean’s subsurface geology. Control-\nling the positioning of the various streamers in the array\nis important to the quality of the maps generated, which,\nin turn, is important to identifying drilling locations for\noil or gas.\n Both WesternGeco and ION domestically manufac-\nture devices, the Q-Marine and DigiFin respectively, for\nsteering streamers in marine seismic surveys. Western-\nGeco does not sell its device, instead using it to perform\nsurveys abroad for oil companies. ION does not perform\nsurveys, instead supplying its device to customers who\nperform the surveys abroad. This case does not involve\nany question as to lost profits from domestic surveys.\n In 2009, WesternGeco sued ION for patent infringe-\nment based on ION’s sales of its DigiFin devices to West-\nernGeco’s competitors in the marine seismic survey\nmarket. After a jury trial, the asserted patent claims were\nfound to be not invalid, and ION was found to have in-\nfringed all of the asserted patent claims under 35 U.S.C.\n§§ 271(f)(1) and (2). The jury awarded WesternGeco a\nreasonable royalty of $ 12.5 million and lost profits of\n$ 93.4 million, but declined to award WesternGeco en-\nhanced damages for willful infringement. The lost profits\naward was based on 10 surveys, which, according to\nWesternGeco, it would have won “but-for” ION’s sales of\nits DigiFin device to WesternGeco’s competitors. West-\n\f4 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nernGeco argues that without the patented technology\nembodied in the device, ION’s customers would not have\nbeen able to win the bids for the 10 surveys at issue.\n In WesternGeco I we reversed the lost profits award as\nbeing based on an unauthorized extraterritorial applica-\ntion of the patent laws. Judge Wallach dissented on this\npoint. 791 F.3d at 1349–52, 1354–64. We unanimously\naffirmed the district court’s refusal to award enhanced\ndamages for willful infringement. WesternGeco I, 791 F.3d\nat 1353–54. WesternGeco petitioned for certiorari, which\nthe Supreme Court granted, vacated our original decision\nin WesternGeco I, and remanded for further proceedings\nconsistent with its decision in Halo Elecs., Inc. v. Pulse\nElecs., Inc., 136 S. Ct. 1923, 1935–36 (2016). We reinstat-\ned our earlier opinion, including reversal of the lost prof-\nits award, but we vacated the district court’s denial of\nenhanced damages and remanded for further considera-\ntion in light of Halo. WesternGeco II, 837 F.3d at 1361–64.\n On remand, WesternGeco sought $ 43.6 million in en-\nhanced damages, and the district court awarded West-\nernGeco $ 5 million in enhanced damages. The parties\nthen entered into a stipulated “Final Judgment pursuant\nto Fed. R. Civ. P. 58.” The stipulation noted that the\nparties had agreed to the reasonable royalty amount and\nthat ION had paid the full amount on November 25, 2016.\nBoth parties agreed not to appeal the enhanced damages\naward and provided a schedule for payment of the en-\nhanced damages award. The only item exempt from the\nstipulation was the lost profits award, which Western-\nGeco had petitioned for certiorari, requesting review of\nour decision on the lost profits award. Neither party\nappealed the stipulated final judgment.\n The petition was granted with respect to the lost prof-\nits award, and in WesternGeco III, the Supreme Court\nreversed our decision on lost profits, holding that “West-\nernGeco’s damages award for lost profits [under 35 U.S.C.\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 5\n\n\n\n§ 271(f)(2)] was a permissible domestic application of\n§ 284,” 138 S. Ct. at 2139, “as it was ION’s domestic act of\nsupplying the components that infringed WesternGeco’s\npatents,” id. at 2138. The Supreme Court also noted that\n“[i]n reaching this holding, we do not address the extent\nto which other doctrines, such as proximate cause, could\nlimit or preclude damages in particular cases.” Id. at 2139\nn.3. The Court then remanded the case to us “for further\nproceedings consistent with this opinion.” Id. at 2139.\n In December 2015, the United States Patent and\nTrademark Office’s Patent Trial and Appeal Board\n(“PTAB”) held four of the six asserted patent claims—’520\npatent claims 18 and 19, ’967 patent claim 15, and ’607\npatent claim 15—unpatentable. See WesternGeco LLC v.\nION Geophysical Corp., 889 F.3d 1308, 1331 (Fed. Cir.\n2018) (“WesternGeco IPR”). While the case was pending in\nthe Supreme Court, we affirmed the PTAB’s unpatenta-\nbility determination of these four claims. Id. Thus, the\nonly asserted claims that remain are ’520 patent claim 23\nand ’038 patent claim 14, and it is uncontested that only\n’520 patent claim 23 may now support the lost profits\naward.\n DISCUSSION\n On remand from the Supreme Court, two issues re-\nmain for us to resolve: (1) the impact of the intervening\ninvalidation of four of the six asserted patent claims on\nthe fully paid reasonable royalty award, and (2) the\nimpact of the invalidation of the four claims on the lost\nprofits award and ION’s argument (presented in its\noriginal appeal) that “Panduit cannot be satisfied because\nION and [WesternGeco] do not compete in the market-\nplace.” ION Open. Br. 56.\n I. Reasonable Royalty Award\n ION challenges the fully paid and satisfied reasonable\nroyalty award based on subsequent invalidation of a\n\f6 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nnumber of WesternGeco’s asserted patent claims. See\nWesternGeco IPR, 889 F.3d at 1331. ION argues that the\ncalculation of the reasonable royalty under Georgia-\nPacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116,\n1120 (S.D.N.Y. 1970), would be affected by the invalida-\ntion of four of the six asserted patent claims, and there-\nfore a new trial is required. For support, ION frames the\ndecision in Fresenius USA, Inc. v. Baxter International,\nInc., 721 F.3d 1330 (Fed. Cir. 2013) as holding that a\njudgment cannot be final for purposes of intervening\npatent invalidations if any part of the litigation remains\npending, and that here the lost profits award continues to\nbe litigated and is not final.\n We disagree. Fresenius only applies where a judgment\nis not final. Id. at 1340–41 & n.9; see also Fresenius USA,\nInc. v. Baxter Int’l, Inc., 733 F.3d 1369, 1371 (Fed. Cir.\n2013) (Dyk, J., concurring in denial of rehearing en banc).\nTo be sure, finality under Fresenius requires that “the\nlitigation must be entirely concluded so that [the] cause of\naction [against the infringer] was merged into a final\njudgment . . . one that ends the litigation on the merits\nand leaves nothing for the court to do but execute the\njudgment.” 721 F.3d at 1341 (alterations in original)\n(quoting Mendenhall v. Barber–Greene Co., 26 F.3d 1573,\n1580 (Fed. Cir. 1994); see ePlus, Inc. v. Lawson Software,\nInc., 789 F.3d 1349, 1358 (Fed. Cir. 2015). But Fresenius\nmade clear that it does not allow reopening of a satisfied\nand unappealable final judgment. 721 F.3d at 1340 (“As\nthe Supreme Court’s decision in Moffitt made clear, ‘[i]t is\na mistake to suppose . . . that . . . moneys recovered on\njudgments in suits . . . might be recovered back [after a\npatent is cancelled]. The title to these moneys does not\ndepend upon the patent, but upon . . . the judgment of the\ncourt.’” (alterations in original) (quoting Moffitt v. Garr,\n66 U.S. 273, 283 (1861)); see Pennsylvania v. Wheeling &\nBelmont Bridge Co., 59 U.S. 421, 431 (1855).\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 7\n\n\n\n The particular facts of this case establish that the\nreasonable royalty award constitutes a fully satisfied and\nunappealable final judgment such that the subsequent\ninvalidation of asserted patent claims does not support\nreopening. Here, ION and WesternGeco entered into a\ncompromise agreement resolving all of the issues in the\ncase except for the lost profits award. They stipulated to a\n“Final Judgment pursuant to Fed. R. Civ. P. 58,” and ION\nfurther manifested assent to the finality of the judgment\nas to the reasonable royalty award by not appealing the\njudgment and completing its payments under the agree-\nment. The parties’ agreement was reflected in a joint\nmotion filed in June 2017 that resolved all of the issues\nexcept for lost profits, although the IPR decisions holding\nthat four of the six asserted patent claims were unpatent-\nable had issued in December 2015. In these unique cir-\ncumstances, it is clear that the reasonable royalty and\nenhanced damages awards were agreed to by the parties\nand subject to an unappealable final judgment, which was\nsatisfied and paid in full by ION to WesternGeco. ION\ncannot now reopen the agreed and fully paid unappeala-\nble final judgment on the reasonable royalty based on the\nsubsequent invalidation of a subset of asserted patent\nclaims.\n II. Lost Profits\n ION argues that, despite the Supreme Court’s deci-\nsion in WesternGeco III, we should either hold that lost\nprofits are not recoverable in this case or remand for a\nnew trial.\n First, ION contends that the district court erred when\nit denied ION’s renewed motion for judgment as a matter\nof law (“JMOL”) on the theory that WesternGeco is not\nentitled to lost profits based on a Panduit theory of but-\nfor causation because ION and WesternGeco are not\n“direct competitors.” ION sells only devices and Western-\nGeco sells only surveys. According to ION, because West-\n\f8 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nernGeco and ION do not compete in the same market, lost\nprofits in the surveys are not recoverable. For legal sup-\nport, ION relies on a statement from Rite-Hite Corp. v.\nKelley Co., 56 F.3d 1538 (Fed. Cir. 1995) (en banc) that\n“the patentee must show a reasonable probability that,\n‘but for’ the infringement, it would have made the sales\nthat were made by the infringer.” Id. at 1545 (emphasis\nadded). ION argues that the emphasized language estab-\nlished a “direct competition” requirement between the\npatentee and alleged infringer. ION also relies on our\ndecision in BIC Leisure Products, Inc. v. Windsurfing\nInternational Inc., 1 F.3d 1214 (Fed. Cir. 1993), that “[t]he\nPanduit test . . . operates under an inherent assumption\n. . . that the patent owner and the infringer sell products\nsufficiently similar to compete against each other in the\nsame market segment.” Id. at 1217–20.\n We are not convinced. In context, the statement from\nRite-Hite was addressing the requirement of “but-for”\ncausation to recover lost profits, not imposing a require-\nment of direct competition between the patentee and\nalleged infringer that was neither at issue in the case nor\nfurther discussed in the opinion. See 56 F.3d at 1545. BIC\nclearly focused the inquiry on whether the patent owner’s\nand the infringer’s products are adequate substitutes for\nconsumers in a particular market. 1 F.3d at 1219. West-\nernGeco’s and ION’s devices competed by performing the\nsame types of functions for surveys. And there was suffi-\ncient evidence in the record for the jury to conclude that\nthe products did compete—i.e., that consumers in the\nsurveying market (oil companies) considered Western-\nGeco’s Q-Marine device and ION’s DigiFin device to be\nsubstitutes for their surveying needs (i.e., that the prod-\nucts competed in the same market). See, e.g., J.A. 3791:1–\n23; 7006; 7135.\n To be sure, the fact that ION sells only devices while\nWesternGeco only sells surveys may be relevant to the\ncomputation of lost profits. WesternGeco had two catego-\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 9\n\n\n\nries of lost profits: the profits attributable to providing the\npatented device and the profits attributable to providing\nother aspects of the surveys (e.g., the ship for towing the\nstreamers). “[A]pportionment is required even for non-\nroyalty forms of damages.” Ericsson, Inc. v. D-Link Sys.,\nInc., 773 F.3d 1201, 1226 (Fed. Cir. 2014). If the applica-\ntion of the Panduit factors does not result in the separa-\ntion of profits attributable to the patented device and the\nprofits attributable to providing other aspects of the\nsurveys (e.g., the ship for towing the streamers), it ap-\npears that apportionment is necessary. 2\n This apportionment argument was not made in the\nsupplemental briefing and was raised for the first time at\noral argument. We conclude that the argument was\nwaived on this appeal. However, if the district court\norders a new trial on damages, ION may present argu-\nments concerning apportionment at the new trial.\n ION’s second argument is that the lost profits award\ncannot be sustained due to the intervening invalidation of\nfour of the five asserted Bittleston patent claims. Here,\nthe jury found all of the asserted claims to be infringed\nand made a single lost profits award. But four of the five\nclaims relied on to support lost profits liability have since\nbeen eliminated, and now the only remaining claim that\ncould support the lost profits award is ’520 patent claim\n23, a dependent device claim. The jury instructions and\nverdict form did not instruct the jury to award damages\nbased separately on infringement of each of the asserted\nclaims, and the jury did not do so.\n\n\n 2 See Mentor Graphics Corp. v. EVE-USA, Inc., 851\nF.3d 1275, 1287–88 (Fed. Cir. 2017) (holding that “satis-\nfaction of the Panduit factors satisifie[d] principles of\napportionment” where, “on the undisputed facts of this\nrecord,” it was clear the plaintiff’s damages were “tied to\nthe worth of its patented features”).\n\f10 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\n The jury could have rested its award on infringement\nof a now-invalidated claim, which cannot be sustained on\nreview. The general rule is that when a “jury was told it\ncould rely on any of two or more independent legal theo-\nries, one of which was defective,” the general verdict must\nbe set aside. i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d\n831, 849–50 (Fed. Cir. 2010) (citing Walther v. Lone Star\nGas Co., 952 F.2d 119, 126 (5th Cir. 1992)), aff’d, 564 U.S.\n91 (2011); see Northpoint Tech., Ltd. v. MDS Am., Inc.,\n413 F.3d 1301, 1311–12 (Fed. Cir. 2005); United N.Y. &\nN.J. Sandy Hook Pilots Ass’n v. Halecki, 358 U.S. 613,\n619 (1959) (“[A] new trial will be required, for there is no\nway to know that the invalid [legal theory] was not the\nsole basis for the verdict.”); Maryland v. Baldwin, 112\nU.S. 490, 493 (1884). We have recognized such a rule “[i]n\na situation—such as this one—where the jury rendered a\nsingle verdict on damages, without breaking down the\ndamages attributable to each patent,” and at least one of\nthe patent claims was held to be defective. Verizon Servs.\nCorp. v. Vonage Holdings Corp., 503 F.3d 1295, 1310\n(Fed. Cir. 2007) (citing Memphis Cmty. Sch. Dist. v.\nStachura, 477 U.S. 299, 312 (1986)); see Accentra, Inc. v.\nStaples, Inc., 500 F. App’x 922, 931 (Fed. Cir. 2013).\n But we do not think a new trial is automatically re-\nquired here if the jury must have found the technology\ncovered by ’520 patent claim 23 was essential for perform-\ning the surveys. In other words, the award can be sus-\ntained if there was undisputed evidence that the\ntechnology covered by ’520 patent claim 23 was necessary\nto perform the surveys. In this area we apply a harmless-\nness analysis similar to our approach in the case of erro-\nneous jury instructions. See Avid Tech., Inc. v. Harmonic,\nInc., 812 F.3d 1040, 1047 (Fed. Cir. 2016) (“[T]he error in\nthe instruction governing this central dispute at trial\nwould be harmless only if a reasonable jury would have\nbeen required by the evidence to find non-infringement\neven without the error.”).\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 11\n\n\n\n WesternGeco argues that both parties’ damages ex-\nperts informed the jury that infringement of any one of\nthe Bittleston patent claims would support the full\namount of the lost profits award. It cites to ION’s own\nexpert, Mr. Gunderson. He testified that he “assumed\nthat . . . the patents are not found to be invalid and that—\nthat there is infringement that is occurring on at least one\nvalid claim,” “one of the base assumptions” for damages\nexperts. WesternGeco Open. Suppl. Br. 15 (citing Trial Tr.\nat 4655:12–4656:3, WesternGeco LLC v. ION Geophysical\nCorp., 953 F. Supp. 2d 731 (S.D. Tex. 2013), ECF No.\n507). WesternGeco reads too much into this testimony.\nMr. Gunderson was merely identifying the basic assump-\ntion of his patent damages calculations, and his testimony\nwas directed to showing that WesternGeco was not enti-\ntled to the claimed lost profits for infringement based on\nany of the patents. See, e.g., Trial Tr. at 4658, 4664, 4736,\nECF No. 507. We do not interpret this testimony as\nsupporting the theory that the entirety of the lost profits\ncould be supported by infringement of any one Bittleston\npatent claim.\n WesternGeco also relies on its own expert, Mr. Sims.\nHe testified that Bittleston’s lateral steering technology\nwas required to perform surveys and that “my under-\nstanding is that the benefits would be attributable to each\nof the [Bittleston] patents because each of the patents\nwould prohibit ION from being able to sell and supply\nand, therefore, the contractors from being able to use the\nlateral steering technology.” WesternGeco Open. Supp.\nBr. 14–15 (citing Trial Tr. at 2661:13–2662:6, ECF No.\n497).\n But it is clear that Sims was simply making an as-\nsumption rather than making an independent determina-\ntion the technology represented in the claims was\nnecessary to perform the surveys. See, e.g., Trial Tr. at\n2386:2–7, ECF No. 474. Sims was a damages expert. He\ndisclaimed knowledge as to the technical aspects, and\n\f12 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\nexplicitly relied on others to support his assumption that\ninfringement of any one of the Bittleston patent claims\nwould have been necessary to perform the 10 surveys at\nissue in the lost profits award. See, e.g., Trial Tr. at\n2378:24–25 (“I confirmed with Mr. Walker, that there was\na requirement for lateral steering”), 2386, ECF No. 474;\nTrial Tr. at 2657–58, ECF No. 497. Sims testified that he\nrelied on Mr. Walker for help in identifying surveys where\nthe patented technology was required, but Mr. Walker\ndisclaimed any knowledge as to the scope of the patents.\nSee Trial Tr. at 1760–61, ECF No. 453. Thus, this testi-\nmony cannot support the jury award on lost profits.\n WesternGeco has also not cited to any other specific\ntestimony that infringement of ’520 patent claim 23 was\nnecessary to perform the 10 surveys at issue. Instead, at\noral argument, WesternGeco argued that the jury was\ninformed generally that the lateral steering technology\nwas required for the surveys at issue and that claim 23\ncovers part of that technology. But lateral steering tech-\nnology was also reflected in the four other, now-invalid,\nasserted claims—’520 patent claims 18 and 19, ’967\npatent claim 15, and ’607 patent claim 15. For example,\nnow-invalid ’520 patent claim 18 recites:\n An apparatus comprising:\n (a) an array of streamers each having a plu-\n rality of streamer positioning devices there\n along;\n (b) a control system configured to use a control\n mode selected from a feather angle mode, a\n turn control mode, a streamer separation\n mode, and two or more of these modes. ’520\n Claim 18.\nAnd now-invalid ’520 patent claim 19 recites:\n The apparatus of claim 18 wherein the control\n mode is the feather angle mode, and the control-\n\fWESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP. 13\n\n\n\n ling comprises the control system attempting to\n keep each streamer in a straight line offset from a\n towing direction by a feather angle.\nThe only surviving claim, ’520 patent claim 23, recites:\n The apparatus of claim 18 wherein the towing\n comprises ending one pass, turning a towing ves-\n sel having the streamers attached thereto while\n throwing out the streamers before beginning an-\n other pass, with the control mode in the turn con-\n trol mode during the turning and throwing out.\nTo sustain the lost profits award, the record must estab-\nlish that there was no dispute that the technology covered\nby claim 23, independent of the technology covered by the\nnow-invalid claims (e.g., ’520 patent claim 18 and 19), was\nrequired to perform the surveys at issue. This determina-\ntion must be made on the present record.\n Because of inadequate briefing on this issue prior to\noral argument, 3 and because the district court is in a\nbetter position to consider the issue in the first instance,\nwe remand to the district court to determine whether a\nnew trial on lost profit damages is required. See Verizon,\n503 F.3d at 1310; DDR Holdings, LLC v. Hotels.com, L.P.,\n773 F.3d 1245, 1262 (Fed. Cir. 2014). The district court\nmay deny a new trial on lost profits if, but only if, it\nconcludes that WesternGeco established at trial with\nundisputed evidence that ’520 patent claim 23 covers\ntechnology necessary to perform the surveys upon which\nthe lost profits award is based.\n\n\n\n\n 3 The parties subsequently filed Fed. R. App. P.\n28(j) letters addressing where in the record the jury was\ninformed that the technology covered by ’520 patent claim\n23 was necessary to perform the surveys at issue.\n\f14 WESTERNGECO L.L.C. v. ION GEOPHYSICAL CORP.\n\n\n\n\n CONCLUSION\n For the foregoing reasons, we reject ION’s challenge\nto the reasonable royalty award and remand to the dis-\ntrict court for further proceedings as to the lost profits.\nWe also reinstate sections I, II, and IV of our decision in\nWesternGeco I and sections I and II of our decision in\nWesternGeco II, which were not affected by either the\ninitial vacatur and remand from the Supreme Court, 136\nS. Ct. 2486 (2016), or the Supreme Court’s subsequent\ndecision in WesternGeco III.\n AFFIRMED-IN-PART, VACATED-IN-PART, AND\n REMANDED\n COSTS\n No costs.\n[END_CASE]",
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4,580,833 | AMERIGEN PHARMACEUTICALS LIMITED, Appellant v. UCB PHARMA GMBH, Appellee | Amerigen Pharmaceuticals v. Ucb Pharma Gmbh | 2019-01-11 | 2017-2596 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Lourie, Chen, Stoll", "parties": "", "opinions": [{"author": "LOURIE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n AMERIGEN PHARMACEUTICALS LIMITED,\n Appellant\n\n v.\n\n UCB PHARMA GMBH,\n Appellee\n ______________________\n\n 2017-2596\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2016-\n01665.\n ______________________\n\n Decided: January 11, 2019\n ______________________\n\n WILLIAM HARE, McNeely Hare & War LLP, Princeton,\nNJ, argued for appellant. Also represented by SHYAM\nDIXIT, Dixit Law Firm, Tampa, FL.\n\n JEFFREY J. OELKE, Fenwick & West, New York, NY,\nargued for appellee. Also represented by RYAN JOHNSON,\nLAURA MORAN, JAMES TRAINOR.\n ______________________\n\n Before LOURIE, CHEN, and STOLL, Circuit Judges.\nLOURIE, Circuit Judge.\n\f2 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n Amerigen Pharmaceuticals Limited (“Amerigen”) ap-\npeals from the decision of the United States Patent and\nTrademark Office Patent Trial and Appeal Board (the\n“Board”) in an inter partes review (“IPR”) holding that\nclaims 1–5 and 21–24 of U.S. Patent 6,858,650 (the “’650\npatent”) are not unpatentable as obvious. Mylan Pharm.\nInc. v. UCB Pharma GmbH, No. 2016-00510 (P.T.A.B.\nJuly 19, 2017) (“Decision”). We conclude that the Board\ndid not err in its conclusions and affirm.\n I. BACKGROUND\n A.\n UCB Pharma GmbH (“UCB”) owns the ’650 patent,\nwhich covers certain chemical derivatives of 3,3-\ndiphenylpropylamines, including a compound called\nfesoterodine. Fesoterodine is an antimuscarinic drug\nmarketed as Toviaz® to treat urinary incontinence.\n The chemical structure of fesoterodine is depicted be-\nlow:\n\n\n\n\n Fesoterodine\n\nOn the upper left hand benzene ring above, we will refer\nto the position of the hydroxymethyl group as the 5-\nposition, and the position of the isobutyryl ester as the 2-\nposition.\n Fesoterodine is a prodrug. Unlike a typical drug, a\nprodrug is an inactive molecule as-delivered and requires\ntransformation within the body into its active therapeutic\nform. A prodrug may be employed when administering\nthe active molecule itself is infeasible because of poor\n\f\f4 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n B.\n Mylan Pharmaceuticals Inc. petitioned for IPR of the\n’650 patent, and the Board instituted review of claims 1–5\nand 21–24 on two grounds: (1) obviousness over the\nDetrol Label, 2 Postlind, 3 Bundgaard, 4 Bundgaard PCT, 5\nand Berge 6; and (2) obviousness over Brynne, 7\nBundgaard, Bundgaard PCT, and Johansson. 8 After\ninstitution, Amerigen and two other companies were\njoined as parties to the proceeding. Only Amerigen has\nappealed.\n 1.\n The references fall into three general categories.\nFirst, the Detrol Label, Postlind, and Brynne discuss\ntolterodine and its metabolism and pharmacokinetics.\nSecond, Bundgaard and Bundgaard PCT focus on prodrug\ndesign principles. Third, Berge and Johansson relate to\n\n\n\n\nfocused on the motivation to make the claimed alkyl ester,\nwhich we do as well.\n 2 Detrol® Prescribing Information (1998).\n 3 Hans Postlind et al., Tolterodine, a New Musca-\nrinic Receptor Antagonist, Is Metabolized by Cytochromes\nP450 2D6 and 3A in Human Liver Microsomes, 26 Drug\nMetabolism & Disposition 289 (1998).\n 4 Hans Bundgaard, Design of Prodrugs (1985).\n 5 International Application WO 92/08459.\n 6 Stephen M. Berge et al., Pharmaceutical Salts, 66\nJ. Pharm. Sci. 1 (1977).\n 7 Niclas Brynne et al., Influence of CYP2D6 Poly-\nmorphism on the Pharmacokinetics and Pharmacodynam-\nics of Tolterodine, 63 Clinical Pharmacology &\nTherapeutics 529 (1998).\n 8 International Application WO 94/11337.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 5\n\n\n\npharmaceutical salts. We will summarize each group in\nturn.\n The Detrol Label discloses the structure of tolterodine\nand its metabolism to 5-HMT via the enzyme CYP2D6.\nThe metabolite 5-HMT is reported to have antimuscarinic\nactivity similar to tolterodine and contribute to toltero-\ndine’s therapeutic effect. The Detrol Label taught that a\nsubset of the population (known as “poor metabolizers”)\nlacks CYP2D6 activity and instead metabolizes toltero-\ndine by means of the enzyme CYP34A. Since the CYP34A\npathway metabolizes tolterodine more slowly than\nCYP2D6, poor metabolizers have higher concentrations of\ntolterodine and negligible concentrations of 5-HMT.\nHowever, because the sum of unbound tolterodine and 5-\nHMT concentrations is similar in extensive (i.e., patients\nwith normal CYP2D6 activity) and poor metabolizers, the\nDetrol Label teaches that the net therapeutic activity of\ntolterodine would be similar between both groups.\n Brynne is a research paper that describes the influ-\nence of patients’ varying CYP2D6 activity on tolterodine\nactivity. Like the Detrol Label, Brynne posits that “the\nCYP2D6 polymorphism does not appear to be of great\nimportance in the antimuscarinic effect, probably because\nof the additive action of parent drug and active metabo-\nlite.” J.A. 301. However, Brynne did observe that\n“[t]olterodine is tenfold more lipophilic than 5-HM[T], and\nconsequently tolterodine penetrates membranes more\nrapidly.” J.A. 310. The reference suggests that this\ndifference might contribute to poor metabolizers experi-\nencing a slightly worse side effect than extensive metabo-\nlizers. But ultimately, Brynne concludes that the\nvariation in CYP2D6 activity between poor and extensive\nmetabolizers “does not appear to be of great pharmacody-\nnamic importance.” Id.\n Postlind, another published research paper, focuses\non tolterodine metabolism. J.A. 296. Postlind cautions\n\f6 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nthat tolterodine has a potential for drug-drug interactions\nbecause other drugs are metabolized by CYP2D6 and that\nCYP2D6 poor metabolizers could be particularly affected\nby such interactions.\n Bundgaard describes prodrugs and their design prin-\nciples. The reference defines a prodrug as “a pharmaco-\nlogically inactive derivative of a parent drug molecule\nthat requires spontaneous or enzymatic transformation\nwithin the body in order to release the active drug, and\nthat has improved delivery properties over the parent\ndrug molecule.” J.A. 316. Thus, “[t]he prodrug per se is\nan inactive species, and therefore, once its job is complet-\ned, intact prodrug represents unavailable drug.” J.A. 319.\nEsters are listed as common prodrug substituents. Specif-\nically, “[a]ctive drug species containing hydroxyl or car-\nboxyl groups can often be converted to prodrug esters\nfrom which the active forms are regenerated by esterases\nwithin the body.” J.A. 319; see J.A. 320 (listing ester\nprodrugs). Bundgaard further states that esters can be\nused to improve aqueous solubility of drugs containing a\nhydroxy group and that with esterification “it is feasible\nto obtain derivatives with almost any desirable hydro-\nphilicity or lipophilicity.” J.A. 321. Relatedly, Bundgaard\nPCT discloses an ester prodrug of morphine that improves\ntransdermal delivery and is more lipophilic than the\nparent drug.\n Berge and Johannson both disclose pharmaceutical\nsalts including fumarate salts.\n 2.\n In its obviousness analysis, the Board accepted that a\nperson of ordinary skill would have chosen 5-HMT as a\nlead compound for development in order to reduce the\nnumber of potential metabolic steps and to avoid\nCYP2D6-related drug-drug interactions. Decision, slip op.\nat 22. However, after considering expert testimony from\nboth the petitioners and UCB, the Board found that a\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 7\n\n\n\nperson of ordinary skill would not have been motivated to\nmodify 5-HMT to make a prodrug by replacing the 2-\nposition hydroxy group with an alkyl ester of six or fewer\ncarbons. Id. at 34–35, 40–41. This factual determination\nwas premised on several subsidiary findings that Ameri-\ngen challenges on appeal. We summarize these findings\nhere.\n The Board found that a person of ordinary skill would\nnot have been motivated to modify 5-HMT to improve its\nbioavailability. Decision, slip op. at 32–33. Petitioners’\nexpert, Dr. Patterson, testified that 5-HMT was insuffi-\nciently lipophilic because of its two hydroxy groups, and\nthat its lipophilicity would cause bioavailability problems.\nIn support, Dr. Patterson pointed to Brynne’s statement\nthat tolterodine is 10-fold more lipophilic than 5-HMT\nand could penetrate cell membranes more rapidly. UCB\nresponded that no prior art reference suggested that 5-\nHMT would not be well-absorbed, and that the lipophilici-\nty of 5-HMT relative to tolterodine, a known, well-\nabsorbed drug, did not show that 5-HMT had a bioavaila-\nbility problem.\n Furthermore, UCB’s expert, Dr. Roush, conducted an\nanalysis of 5-HMT using the “Rule of 5” discussed in a\nresearch article on drug delivery by Lipinski. 9 Dr. Patter-\nson agreed that a person of ordinary skill would consider\nthe Rule of 5. The Rule of 5 assesses four inherent prop-\nerties of a compound that may help to predict whether it\nwill have a bioavailability problem. 10 Dr. Roush consid-\n\n\n 9 Christopher Lipinski et al., Experimental and\nComputational Approaches to Estimate Solubility and\nPermeability in Drug Discovery and Development Settings,\n23 Advanced Drug Delivery Reviews 3 (1997).\n 10 Specifically, poor absorption is more likely under\nthe Rule of 5 if: (1) there are more than 5 hydrogen-bond\n\f8 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nered these properties as they pertained to 5-HMT and\nconcluded that none of them indicated that 5-HMT had a\nbioavailability problem. Dr. Patterson did not rebut this\nanalysis. The Board thus credited Dr. Roush and deter-\nmined that a person of ordinary skill would not have been\nmotivated to modify 5-HMT because of bioavailability\nconcerns. Decision, slip op. at 32–33.\n Given its determination that 5-HMT did not have a\nbioavailability problem, the Board found that a person of\nordinary skill would not have made a 5-HMT prodrug to\nsolve a bioavailability problem that did not exist. Deci-\nsion, slip op. at 35. Designing a prodrug was a complex\nendeavor, the Board found, as toxicity, bioavailability,\nand other drug characteristics must be monitored for two\ncompounds rather than just one. Id. The Board also\nfound that Bundgaard defined the prodrug form of a\ncompound as inactive, but the petitioners did not demon-\nstrate that esters of 5-HMT would be inactive. Id. at 36.\nMoreover, the petitioners did not point to any prodrugs\nanalogous to fesoterodine, for example, prodrugs in the\nsame chemical class, with the same mechanism of action,\nor in the same field of treatment. Id. at 36–37. The\nBoard thus found that a person of ordinary skill would not\nhave been motivated to develop a prodrug of 5-HMT.\n Even assuming that a person of ordinary skill would\nhave been motivated to modify 5-HMT, the Board found\nthat producing the specific claimed compounds would not\nhave been a matter of routine optimization. Id. at 40–43.\nNo prior art reference disclosed the molecule fesoterodine.\nId. at 38, 40. Considering competing expert testimony,\nthe Board determined that there were many possible\n\n\ndonors; (2) there are more than 10 hydrogen-bond accep-\ntors; (3) the molecular weight is greater than 500; and\n(4) the calculated log P is greater than 5.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 9\n\n\n\nmolecular modifications of 5-HMT consistent with a\nprodrug design. Id. at 40. For example, Bundgaard\nexplained that diesters could be used in a prodrug. Id.\nThe Board credited Dr. Roush’s testimony that a person of\nordinary skill would have considered esterifying the\nhydroxy groups at both the 2- and 5-positions. Id. at 42.\nAnd even if a person of ordinary skill only considered\nesterifying the 2-position hydroxy group, the Board cred-\nited Dr. Roush’s testimony that there was no scientific\njustification to limit the ester to six carbons or fewer. Id.\nat 43. Finally, even if the universe of possible esters was\nlimited to alkyl esters of six carbons or fewer at the 2-\nposition, that still left 86 possible monoesters. The Board\nfound that it would not have been routine to test each one.\nId. at 41. Altogether, the Board held that the prior art\ndid not suggest modifying 5-HMT to make the specific\nclaimed compounds. Id. at 40.\n Regarding the dependent claims, the Board held that\nit would not have been obvious to make the R-enantiomer\nor a fumarate salt of the claimed compounds. Id. at 45,\n47. As we resolve this appeal with respect to independent\nclaim 1, we do not further discuss the Board’s findings on\nthe dependent claims.\n Petitioners also argued, in a footnote in the petition,\nthat a person of ordinary skill would have been motivated\nto modify 5-HMT because at the time of the invention 5-\nHMT was covered by a patent. Id. at 23. The Board gave\nlittle weight to this argument. Id. at 24. Based on the\nabove findings, the Board concluded that the petitioners\ndid not sustain their burden to prove any of the instituted\nclaims unpatentable as obvious over the references in\neither ground. Id. at 48–50.\n Amerigen appealed. UCB moved to dismiss for lack of\nstanding, which we denied without prejudice to UCB\nraising its standing arguments at the merits stage.\nAmerigen Pharm. Ltd. v. UCB Pharma GmbH, No. 17-\n\f10 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n2596, ECF No. 23 (Fed. Cir. Mar. 15, 2018). As UCB’s\nstanding challenge implicates our jurisdiction, we begin\nwith standing and then turn to the merits.\n II. DISCUSSION\n A. Standing\n UCB argues that Amerigen lacks standing to appeal\nfrom the Board’s decision because the Food and Drug\nAdministration (“FDA”) will not approve Amerigen’s\nabbreviated new drug application (“ANDA”) until the\nexpiration of the ’650 patent, previously upheld in a\nseparate suit in the District of Delaware, in 2022. Accord-\ningly, UCB contends that Amerigen is foreclosed from\ninfringing the ’650 patent, and without a possibility of\ninfringement there can be no justiciable dispute. Sepa-\nrately, UCB argues any alleged injury is traceable to\nAmerigen’s own conduct, not UCB’s, because Amerigen\nacquiesced to the Delaware district court’s infringement\nand validity holdings.\n Amerigen responds that its ANDA product has al-\nready secured tentative approval from the FDA, that the\n’650 patent delays entry of its competing product, and\nthat invalidating the claims of the ’650 patent would\nadvance the launch of its product. By blocking its release\nof a competing drug, Amerigen argues that the ’650\npatent imposes a concrete injury sufficient for Article III\nstanding.\n Although we have jurisdiction to review final deci-\nsions of the Board under 28 U.S.C. § 1295(a)(4)(A), an\nappellant must meet “the irreducible constitutional\nminimum of standing,” Lujan v. Defenders of Wildlife, 504\nU.S. 555, 560 (1992), even if there is no such requirement\nin order to appear before the administrative agency being\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 11\n\n\n\nreviewed, Consumer Watchdog v. Wis. Alumni Research\nFound., 753 F.3d 1258, 1261 (Fed. Cir. 2014). 11 Standing\nrequires an appellant to have “(1) suffered an injury in\nfact, (2) that is fairly traceable to the challenged conduct\nof the defendant, and (3) that is likely to be redressed by a\nfavorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.\nCt. 1540, 1547 (2016). As the party seeking judicial\nreview, the appellant bears the burden of proving that it\nhas standing. Phigenix, Inc. v. Immunogen, Inc., 845 F.3d\n1168, 1171 (Fed. Cir. 2017). We accept as true Amerigen’s\nmaterial representations of fact for purposes of assessing\nits standing. See Warth v. Seldin, 422 U.S. 490, 501\n(1975); James v. J2 Cloud Servs., LLC, 887 F.3d 1368,\n1372 (Fed. Cir. 2018); see also Am. Inst. of Certified Pub.\nAccountants v. IRS, 804 F.3d 1193, 1197 (D.C. Cir. 2015).\n We agree with Amerigen that it has standing to ap-\npeal from the Board’s decision because the launch of its\ntentatively approved drug is blocked by the ’650 patent,\nand invalidation of the patent would advance its drug’s\nlaunch. The ’650 patent is listed in the FDA’s “Orange\nBook” 12 entry for Toviaz®. Amerigen has a Paragraph III\ncertification for the ’650 patent, 13 which means that the\n\n\n\n 11 However, “where Congress has accorded a proce-\ndural right to a litigant, such as the right to appeal an\nadministrative decision, certain requirements of stand-\ning—namely immediacy and redressability, as well as\nprudential aspects that are not part of Article III—may be\nrelaxed.” Consumer Watchdog, 753 F.3d at 1261 (citing\nMassachusetts v. EPA, 549 U.S. 497, 517–18 (2007)).\n 12 This publication is formally entitled “Approved\nDrug Products with Therapeutic Equivalence Evalua-\ntions.”\n 13 Amerigen had initially filed a Paragraph IV certi-\nfication against the ’650 patent. See 21 U.S.C.\n\f12 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nFDA will only approve Amerigen’s ANDA after the ’650\npatent has expired. 21 U.S.C. § 355(j)(5)(B)(ii). However,\nif the ’650 patent is held unpatentable through reversal of\nthe Board’s decision, then the New Drug Application\n(“NDA”) holder 14 must “promptly notify” the FDA that the\npatent “no longer meet[s] the statutory requirements for\nlisting.” 21 C.F.R. § 314.53(f)(2)(i). And § 314.53 express-\nly states that a patent does not meet the requirements for\nlisting “if there has been a judicial finding of invalidity for\na listed patent, from which no appeal has been or can be\ntaken.” Id. After a notification from the NDA holder that\na patent may no longer be listed, the FDA “will remove a\npatent . . . from the list if there is no first applicant eligi-\nble for 180–day exclusivity based on a paragraph IV\ncertification to that patent or after the 180–day exclusivi-\nty period of a first applicant based on that patent has\nexpired or has been extinguished.” Id.\n Amerigen has represented that its “ANDA has al-\nready received tentative approval and would be able to\nobtain final approval for launch in 2019 if the ’650 patent\nis invalidated.” Reply Br. 13. The ’650 patent expires on\nJuly 3, 2022. UCB’s other earlier-expiring patents listed\n\n\n\n§ 355(j)(2)(A)(vii)(IV). Pfizer and UCB then sued Ameri-\ngen for patent infringement under 35 U.S.C. § 271(e)(2),\nAmerigen stipulated to infringement, and the district\ncourt held the ’650 patent not invalid. Pfizer v. Sandoz,\nNo. 12-1110-GMS, 2016 WL 1611377, at *6, *10 (D. Del.\nApr. 20, 2016). Amerigen waived its right to appeal. The\ndistrict court’s holding that the ’650 patent was not inva-\nlid and was infringed resulted in the conversion of Ameri-\ngen’s Paragraph IV certification to a Paragraph III. See\n21 C.F.R. § 314.94(a)(12)(viii)(A).\n 14 The NDA holder is Pfizer Inc., which holds a li-\ncense to UCB’s ’650 patent.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 13\n\n\n\nin the Orange Book, which are not at issue in this appeal,\nexpire on May 11, 2019. Consequently, there would be a\nroughly three-year period beginning in May 2019 during\nwhich Amerigen’s sales would be blocked by the ’650\npatent. The record is unclear whether a different compa-\nny’s generic product is eligible for the 180–day exclusivity\nperiod. However, even assuming that another generic\nproduct is entitled to 180-day exclusivity, a conclusion\nfrom this court that the instituted claims of the ’650\npatent are unpatentable and the FDA’s consequent delist-\ning of the patent would enable Amerigen to launch its\ncompeting product substantially earlier than it otherwise\ncould upon the patent’s expiration. We thus conclude that\nAmerigen has a concrete, economic interest in the sales of\nits tentatively approved drug obstructed by the listing of\nthe ’650 patent, and has thereby demonstrated a contro-\nversy “of sufficient immediacy and reality” for Article III\nstanding. MedImmune, Inc. v. Genentech, Inc., 549 U.S.\n118, 127 (2007); see E.I. DuPont de Nemours & Co. v.\nSynvina C.V., 904 F.3d 996, 1004 (Fed. Cir. 2018).\n UCB’s arguments that Amerigen lacks standing are\nlargely premised on the theory that under the Hatch-\nWaxman Act, 21 U.S.C. §§ 355, 360 (2012), a “Paragraph\nIV certification is the fundamental, jurisdictional basis\nenabling parties to litigate Orange Book-listed patents in\nthe Article III courts,” and without that basis there can be\nno injury in fact. Appellee’s Br. 27. But this case does not\narise under the Hatch-Waxman Act, and the causes of\naction available under that Act do not necessarily control\nthe standing inquiry in an appeal from an IPR decision.\nThey do not control here because Amerigen does not rely\non a risk of infringement liability as a basis for injury in\nfact; rather, it contends that the mere listing of the ’650\npatent in the Orange Book inflicts a concrete commercial\ninjury redressable by this court.\n We have previously recognized that listing a patent in\nthe Orange Book may create a cognizable injury inde-\n\f14 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\npendent of the prospect of infringement liability. In\nApotex, Inc. v. Daiichi Sankyo, Inc., one generic company,\nApotex, sought to cause the forfeiture of a third-party\ngeneric company’s 180-day exclusivity period by securing\na declaratory judgment of noninfringement of Daiichi’s\npatent that had been disclaimed. 781 F.3d 1356, 1359–61\n(Fed. Cir. 2015). 15 Apotex could not show harm via in-\nfringement because the disclaimed patent could not be\ninfringed. But Apotex could show harm from the fact that\nthe patent was still listed in the Orange Book, because\nthe listing delayed the start of the third party’s 180-day\nexclusivity period, which in turn delayed the date on\nwhich Apotex could market its drug. Apotex argued that\na declaratory judgment of noninfringement, in accelerat-\ning the end of the third party’s exclusivity period, “would\nallow it to enter the market earlier than it could without\nthe judgment.” Id. at 1360. We agreed that Apotex\ndemonstrated a controversy “of sufficient immediacy and\nreality” for Article III standing. Id. at 1361–62 (quoting\nMedImmune, 549 U.S. at 127). That controversy origi-\nnated from the “listing of [a] patent, with its current\nconsequence of preventing FDA approval” of Apotex’s\nproposed drug during the other generic company’s exclu-\nsivity period. Id. at 1362.\n\n\n\n 15 The Hatch-Waxman Act, as amended by the Med-\nicare Modernization Act (“MMA”), Pub. L. No. 108-173,\n117 Stat. 2066 (2003), provides for forfeiture of a first\nfiler’s 180-day exclusivity under certain conditions, in-\ncluding via a declaratory judgment of non-infringement in\nfavor of a different generic company. 21 U.S.C.\n§ 355(j)(5)(D)(i)(I)(bb). Such a judgment triggers a 75-day\nperiod for the first filer to market its drug—and start its\n180 days of exclusivity—or otherwise lose its period of\nexclusivity. Id.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 15\n\n\n\n This case presents the same essential scenario, where\nthe listing of a drug company’s patent delays the launch\nof a competing generic product. If Amerigen succeeds in\ninvalidating the ’650 patent here and having the patent\ndelisted, then it, like Apotex, could launch its proposed\ndrug substantially earlier than it otherwise could. Conse-\nquently, “by any common-sense measure,” Amerigen has a\n“substantial, concrete stake[] in whether” it succeeds in\nproving the invalidity of the ’650 patent. Id. at 1363.\n UCB contends that this case is controlled by Janssen\nPharmaceutica, N.V. v. Apotex, Inc., 540 F.3d 1353 (Fed.\nCir. 2008), not Daiichi. Similar to Daiichi, Janssen\ninvolved one generic company, coincidentally also Apotex,\nseeking a declaratory judgment of noninfringement of\nJanssen’s listed patent in order to trigger another generic\ncompany’s 180-day exclusivity period, thereby advancing\nthe launch of Apotex’s drug. 540 F.3d at 1358–60. How-\never, unlike Daiichi, Janssen applied the pre-MMA ver-\nsion of the Hatch-Waxman Act that did not provide an\nexpress path for one generic firm to trigger the forfeiture\nof the first filer’s 180-day exclusivity period. Daiichi, 781\nF.3d at 1367–68. Janssen thus concluded that the inabil-\nity of the later filing generic company “to promptly launch\nits generic [product] because of [the first filer’s] 180–day\nexclusivity period is not a cognizable Article III controver-\nsy, but a result envisioned by the Hatch-Waxman Act.”\n540 F.3d at 1361.\n The America Invents Act (“AIA”) and its provisions\ngoverning IPRs do not support an analogous statutory\nimplication. Congress granted parties broad access to\nchallenge patents through the IPR procedure. Any “per-\nson who is not the owner of a patent may file with the\n[Patent] Office a petition to institute an [IPR] of the\npatent.” 35 U.S.C. § 311. Likewise, any “party dissatis-\nfied with the final written decision of the [Board] . . . may\nappeal the decision . . . .” Id. § 319. The AIA thus pro-\nvides no basis for us to premise standing in an appeal\n\f16 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nfrom an IPR decision on the availability of particular\ncauses of action under the Hatch-Waxman Act. Rather,\nan appellant must demonstrate an injury consistent with\nthe generally applicable requirements of Article III, i.e., a\ncontroversy “of sufficient immediacy and reality” to war-\nrant the requested judicial relief. MedImmune, 549 U.S.\nat 127; DuPont, 904 F.3d at 1004. Because Amerigen has\ndemonstrated such a controversy traceable to UCB’s ’650\npatent and redressable by this court, it has standing to\nappeal from the Board’s decision even though it may be\nincapable (as a Paragraph III filer) of maintaining a\nparallel Hatch-Waxman suit.\n We are not persuaded by UCB’s remaining argu-\nments. UCB contends that any delisting-based relief\nwould be too speculative to support standing. However,\nas Amerigen has already been granted tentative approval\nfor its proposed drug, the only uncertainty is whether\nAmerigen would have to wait for another generic compa-\nny’s potential 180-day exclusivity period to expire. As we\nhave explained, Amerigen’s launch would be substantially\nadvanced even if another generic company has 180 days of\nexclusivity.\n UCB additionally disputes whether Amerigen’s al-\nleged injury is traceable to UCB. The injury plainly is\ncaused by UCB’s listing of the ’650 patent; absent that\nentry barrier, approval of Amerigen’s proposed drug\nwould be advanced. See Daiichi, 781 F.3d at 1363.\n For the foregoing reasons, we conclude that Amerigen\nhas standing to appeal from the Board’s decision. We\ntherefore proceed to the merits.\n B. Obviousness\n Amerigen argues that the Board did not properly con-\nsider the evidence in support of obviousness. In particu-\nlar, Amerigen alleges that: (1) the Board misunderstood\nAmerigen’s arguments concerning lipophilicity, and it\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 17\n\n\n\nshould have recognized that a person of ordinary skill\nwould have increased the lipophilicity of 5-HMT for its\nown sake; (2) the Board placed an excessive burden on\nAmerigen to show a motivation to make a 5-HMT pro-\ndrug; and (3) the Board failed to recognize that arriving at\nthe specific claimed compounds would have been routine\noptimization. Amerigen additionally contends that the\nBoard ignored its argument concerning the effect of the\npatent covering 5-HMT.\n UCB responds that Amerigen points to no legal error\nand that substantial evidence supports the Board’s find-\nings.\n Our review of a Board decision is limited. In re Baxter\nInt’l, Inc. 678 F.3d 1357, 1361 (Fed. Cir. 2012). While we\nreview the Board’s legal determinations de novo, In re\nElsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), we review\nthe Board’s factual findings underlying those determina-\ntions for substantial evidence, In re Gartside, 203 F.3d\n1305, 1316 (Fed. Cir. 2000). A finding is supported by\nsubstantial evidence if a reasonable mind might accept\nthe evidence as adequate to support the finding. Consol.\nEdison Co. v. NLRB, 305 U.S. 197, 229 (1938).\n Under 35 U.S.C. § 103 (2006), 16\n [a] patent may not be obtained . . . if the\n differences between the subject matter\n sought to be patented and the prior art are\n such that the subject matter as a whole\n would have been obvious at the time the\n invention was made to a person having\n\n\n 16 Because the application of the ’650 patent was\nfiled before March 16, 2013, the pre-Leahy-Smith America\nInvents Act version of § 103 applies. See Pub L. No. 112-\n29, 125 Stat. 284 (2011).\n\f18 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n ordinary skill in the art to which said sub-\n ject matter pertains.\nObviousness is a question of law based on underlying\nfacts, including the scope and content of the prior art,\ndifferences between the prior art and the claims at issue,\nthe level of ordinary skill, and relevant evidence of sec-\nondary considerations. Graham v. John Deere Co., 383\nU.S. 1, 17–18 (1966). Whether a person of ordinary skill\nwould have been motivated to modify the teachings of a\nreference is a question of fact. WBIP, LLC v. Kohler Co.,\n829 F.3d 1317, 1327 (Fed. Cir. 2016). In an IPR, the\npetitioner has the burden of proving unpatentability by a\npreponderance of the evidence. 35 U.S.C. § 316(e).\n We agree with UCB that the Board did not legally err\nand that substantial evidence supports the Board’s find-\nings. We address Amerigen’s arguments in turn.\n Amerigen argues that a person of ordinary skill would\nhave been motivated to modify 5-HMT to increase its\nlipophilicity. Based on the analysis of UCB’s expert, Dr.\nRoush, the Board disagreed. Decision, slip op. at 31–33.\nPetitioners argued that 5-HMT’s lower lipophilicity com-\npared to tolterodine suggested that 5-HMT had a bioa-\nvailability problem. Id. at 28 (“Petitioner argues that ‘a\nperson of ordinary skill in the art would have appreciated\nthat 5-HMT was [too hydrophilic] and needed to be modi-\nfied in a way to improve bioavailability . . . .’” (alteration\nin original)). Dr. Roush, however, testified that since 5-\nHMT did not violate any of the Lipinski rules, a person of\nordinary skill would not have thought 5-HMT had a\nbioavailability problem. Id. at 29–30. Specifically, Dr.\nRoush testified that Lipinski predicts a potential bioa-\nvailability problem if a compound meets two of the follow-\ning four factors: (1) more than 5 hydrogen bond donors;\n(2) a molecular weight over 500; (3) a logP over 5; and (4)\nmore than 10 hydrogen bond acceptors. According to Dr.\nRoush, 5-HMT had: (1) 2 hydrogen bond donors; (2) a\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 19\n\n\n\nmolecular weight of 341.5; (3) a logP of 3.7; and (4) 3\nhydrogen bond acceptors. As 5-HMT satisfied none of the\nLipinski factors, Dr. Roush found that “there would have\nbeen no reason to suspect that 5-HMT would possess poor\noral absorption.” J.A. 1295. Petitioners’ expert, Dr.\nPatterson, agreed that a person of ordinary skill would\nhave considered Lipinski in assessing bioavailability and\ndid not rebut Dr. Roush’s analysis. Decision, slip op. at\n30.\n The Board weighed the unrebutted testimony of Dr.\nRoush against petitioners’ argument based on the relative\nlipophilicity of 5-HMT to tolterodine and Dr. Patterson’s\ntestimony that 5-HMT’s two hydroxy groups suggested a\nbioavailability problem. Id. at 31. The Board found that\nDr. Roush better addressed the bioavailability issue and\nthat the lipophilicity of 5-HMT relative to tolterodine did\nnot demonstrate a bioavailability problem. Id. at 31–32.\nWe agree with UCB that a reasonable fact finder could\nhave weighed Dr. Roush’s testimony over Dr. Patterson’s.\nBased on the record before us, we conclude that substan-\ntial evidence supports the Board’s finding that a person of\nordinary skill would not have been motivated to modify 5-\nHMT to increase its lipophilicity.\n On appeal, Amerigen does not point to a specific error\nin the Board’s findings, but generally argues that “there\nneed not be a specific problem with bioavailability of 5-\nHMT for one of ordinary skill in the art to be motivated to\nmodify 5-HMT to further improve its bioavailability.”\nAppellant’s Br. 33. While that may be true in some cases,\nAmerigen’s conclusory argument is not sufficient to\novercome the substantial evidence to the contrary under-\npinning the Board’s analysis. The Board found that a\nperson of ordinary skill would have considered prodrug\ndevelopment to involve tradeoffs, including having to\nmonitor “the toxicity, bioavailability, receptor affinity,\npharmacokinetics, and pharmacodynamics of” two com-\npounds: the prodrug and the active compound. Decision,\n\f20 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nslip op. at 35. Given such complexities, the Board deter-\nmined that a person of ordinary skill would not have\nturned to a prodrug approach “to solve an undefined\nproblem.” Id. We see no reversible error in the Board’s\nfindings.\n Amerigen then argues that increasing lipophilicity “in\nand of itself” (i.e., independent of bioavailability concerns)\nwould have motivated a person of ordinary skill to modify\n5-HMT. Appellant’s Br. 32. However, Amerigen did not\npresent this theory to the Board, points us to no evidence\nin the record in support of it, and does not explain why a\nskilled artisan would modify a drug to increase its lipo-\nphilicity independent of bioavailability. We thus do not\nconsider Amerigen’s argument persuasive.\n Even assuming that a person of ordinary skill would\nhave had some motivation to modify 5-HMT, the Board\nadditionally found that the petitioners did not prove that\na skilled artisan would have made the specific modifica-\ntions leading to the claimed compounds. Amerigen argues\nthat the Board erred in its findings. We disagree.\n The Board held that the petitioners did not sustain\ntheir burden of proof for primarily three reasons. First,\nthe Board considered Bundgaard’s teaching that the\nprodrug form of a drug is inactive. Decision, slip op. at\n35–36; see J.A. 316 (defining a prodrug as “a pharmacolog-\nically inactive derivative of a parent drug molecule that\nrequires spontaneous or enzymatic transformation within\nthe body in order to release the active drug, and that has\nimproved delivery properties over the parent drug mole-\ncule.”); J.A. 319 (“The prodrug per se is an inactive spe-\ncies, and therefore, once its job is completed, intact\nprodrug represents unavailable drug.”). Petitioners\npresented no evidence that an ester of 5-HMT would be\ninactive, and the Board thus found that this deficiency\nsupported nonobviousness. Decision, slip op. at 36.\nAmerigen argues that the Board imposed an “insur-\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 21\n\n\n\nmountable burden” on petitioners, Appellant’s Br. 38, but\nwe disagree. The Board sensibly found that a skilled\nartisan would “seek some degree of certainty that a pro-\ndrug of a particular molecule would be inactive before\nembarking on the process of attempting to create the\nprodrug,” and the petitioners failed to provide any such\ncertainty. Decision, slip op. at 36.\n This deficiency is compounded by the Board’s second\nfinding that the petitioners did not point to any prodrugs\nanalogous to 5-HMT. Specifically, the Board found no\nevidence of prodrugs in the same chemical class, with the\nsame mechanism of action, or in the same field of treat-\nment. Id. Again, Amerigen argues that the Board im-\nposed too high a burden on petitioners, effectively a\n“[r]equirement for a [p]rior [t]eaching of a 5-HMT [a]nalog\n[p]rodrug.” Appellant’s Br. 39. But the Board did not\nrequire such evidence, Decision, slip op. at 37 (“Petitioner\ndoes not have to demonstrate explicitly that there were\nprodrug examples analogous to 5-HMT . . . .”); it just\nfound that the absence of such evidence supported UCB’s\nargument that at the time of the invention skilled arti-\nsans had not considered “a prodrug of an antimuscarinic\ndrug or any sort of overactive bladder drug.” Id. Alt-\nhough not dispositive, the Board did not err in inquiring\nwhether there existed at the time of the invention pro-\ndrugs similar to the claimed compounds.\n Third, the Board found that it would not have been\nroutine to make the claimed molecular modifications to 5-\nHMT to produce the claimed compounds. Citing Dr.\nRoush, the Board found: (1) that a skilled artisan would\nhave considered diester substitutions as well as other\nprodrug moieties taught in Bundgaard, id. at 40; (2) that\na person of ordinary skill would have considered modify-\ning the 5-position in addition to the 2-position, id. at 41–\n42; and (3) that Bundgaard did not specifically teach the\nisobutyryl ester of fesoterodine, id. at 40.\n\f22 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n Amerigen argues that Bundgaard disclosed esters as\nprototypical prodrug moieties and that modifying the 2-\nposition alone would have been the most obvious choice.\nWhile the Board considered Bundgaard’s disclosure of\nester prodrugs, id. at 39, the Board also observed, citing\nDr. Roush, that Bundgaard taught many other prodrug\nsubstitutions that a person of ordinary skill would have\nconsidered, id. at 40. Dr. Roush testified that these\nadditional substitutions included ethers, carbamates,\ncarbonates, phosphate esters, Mannich bases, and mac-\nromolecular prodrugs. Moreover, the Board also found\nthat a person of ordinary skill would have considered\nmodifications at the 5-position because the prior art did\nnot indicate a preference for either the 2- or 5-position,\nand the inventors themselves considered modifying the 5-\nposition. Id. at 42. The Board did not consider the con-\ntrary evidence persuasive: Dr. Patterson argued that\nmodifying only the 5-position would pose a risk of trans-\nesterification, but did not sufficiently explain that risk,\nand petitioners primarily relied on a separate theory\naltogether regarding possible metabolic complications at\nthe 5-position that was devoid of evidentiary support, id.\nat 42. Amerigen has demonstrated no discernible error in\nthe Board’s technical analysis, and asks this court to\nreweigh these matters on appeal. We conclude that\nsubstantial evidence supports the Board’s determination\nthat the prior art did not suggest making the claimed\nmonoester substitutions solely at the 2-position.\n Altogether, the Board found that the petitioners nei-\nther established a general motivation to make a 5-HMT\nprodrug nor proved that the specific claimed modifications\nwould have been obvious. We conclude that Amerigen’s\nfactual challenges to the Board’s decision are without\nmerit and that substantial evidence supports the Board’s\nfindings.\n Amerigen additionally contends that the Board did\nnot give sufficient weight to its theory—presented in a\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 23\n\n\n\nsingle-sentence footnote to its argument about salt forms\nof fesoterodine—that a skilled artisan would have been\nmotivated to modify 5-HMT because 5-HMT was patented\nat the time of invention. However, even accepting, for the\nsake of discussion, that a patent on 5-HMT would provide\na commercial motivation for a skilled artisan to modify 5-\nHMT, such a motivation would not be sufficient to prove\nthat the claimed compounds would have been obvious. It\nwas Amerigen’s burden to show that the “prior art would\nhave suggested making the specific molecular modifica-\ntions necessary to achieve the claimed invention.” Takeda\nChem. Indus., Ltd. v. Alapharm Pty., Ltd., 492 F.3d 1350,\n1356 (Fed. Cir. 2007) (emphasis added) (quoting In re\nDeuel, 51 F.3d 1552, 1558 (Fed. Cir. 1995)). A general\nmotivation to modify 5-HMT based on a prior patent\nwould not suffice, and as we have already explained,\nAmerigen did not otherwise meet its burden to prove that\nthe specific claimed modifications to 5-HMT would have\nbeen obvious. Any compound may look obvious once\nsomeone has made it and found it to be useful, but work-\ning backwards from that compound, with the benefit of\nhindsight, once one is aware of it does not render it obvi-\nous.\n Amerigen also challenges the Board’s findings con-\ncerning whether it would have been routine to optimize\nthe possible monoesters at the 2-position and whether the\nparticular salts and enantiomer claimed in the dependent\nclaims would have been obvious. The Board held in\nUCB’s favor for each issue. Decision, slip op. at 42–47.\nHowever, we conclude that these findings were not neces-\nsary to the Board’s judgment, and we do not rely on them\nfor ours.\n CONCLUSION\n We have considered Amerigen’s remaining arguments\nbut do not find them persuasive. For the foregoing rea-\nsons, we affirm the Board’s decision.\n\f24 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n AFFIRMED", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358086/", "author_raw": "LOURIE, Circuit Judge."}]} | LOURIE | CHEN | STOLL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580833/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: AMERIGEN PHARMACEUTICALS LIMITED, Appellant v. UCB PHARMA GMBH, Appellee\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n AMERIGEN PHARMACEUTICALS LIMITED,\n Appellant\n\n v.\n\n UCB PHARMA GMBH,\n Appellee\n ______________________\n\n 2017-2596\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2016-\n01665.\n ______________________\n\n Decided: January 11, 2019\n ______________________\n\n WILLIAM HARE, McNeely Hare & War LLP, Princeton,\nNJ, argued for appellant. Also represented by SHYAM\nDIXIT, Dixit Law Firm, Tampa, FL.\n\n JEFFREY J. OELKE, Fenwick & West, New York, NY,\nargued for appellee. Also represented by RYAN JOHNSON,\nLAURA MORAN, JAMES TRAINOR.\n ______________________\n\n Before LOURIE, CHEN, and STOLL, Circuit Judges.\nLOURIE, Circuit Judge.\n\f2 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n Amerigen Pharmaceuticals Limited (“Amerigen”) ap-\npeals from the decision of the United States Patent and\nTrademark Office Patent Trial and Appeal Board (the\n“Board”) in an inter partes review (“IPR”) holding that\nclaims 1–5 and 21–24 of U.S. Patent 6,858,650 (the “’650\npatent”) are not unpatentable as obvious. Mylan Pharm.\nInc. v. UCB Pharma GmbH, No. 2016-00510 (P.T.A.B.\nJuly 19, 2017) (“Decision”). We conclude that the Board\ndid not err in its conclusions and affirm.\n I. BACKGROUND\n A.\n UCB Pharma GmbH (“UCB”) owns the ’650 patent,\nwhich covers certain chemical derivatives of 3,3-\ndiphenylpropylamines, including a compound called\nfesoterodine. Fesoterodine is an antimuscarinic drug\nmarketed as Toviaz® to treat urinary incontinence.\n The chemical structure of fesoterodine is depicted be-\nlow:\n\n\n\n\n Fesoterodine\n\nOn the upper left hand benzene ring above, we will refer\nto the position of the hydroxymethyl group as the 5-\nposition, and the position of the isobutyryl ester as the 2-\nposition.\n Fesoterodine is a prodrug. Unlike a typical drug, a\nprodrug is an inactive molecule as-delivered and requires\ntransformation within the body into its active therapeutic\nform. A prodrug may be employed when administering\nthe active molecule itself is infeasible because of poor\n\f\f4 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n B.\n Mylan Pharmaceuticals Inc. petitioned for IPR of the\n’650 patent, and the Board instituted review of claims 1–5\nand 21–24 on two grounds: (1) obviousness over the\nDetrol Label, 2 Postlind, 3 Bundgaard, 4 Bundgaard PCT, 5\nand Berge 6; and (2) obviousness over Brynne, 7\nBundgaard, Bundgaard PCT, and Johansson. 8 After\ninstitution, Amerigen and two other companies were\njoined as parties to the proceeding. Only Amerigen has\nappealed.\n 1.\n The references fall into three general categories.\nFirst, the Detrol Label, Postlind, and Brynne discuss\ntolterodine and its metabolism and pharmacokinetics.\nSecond, Bundgaard and Bundgaard PCT focus on prodrug\ndesign principles. Third, Berge and Johansson relate to\n\n\n\n\nfocused on the motivation to make the claimed alkyl ester,\nwhich we do as well.\n 2 Detrol® Prescribing Information (1998).\n 3 Hans Postlind et al., Tolterodine, a New Musca-\nrinic Receptor Antagonist, Is Metabolized by Cytochromes\nP450 2D6 and 3A in Human Liver Microsomes, 26 Drug\nMetabolism & Disposition 289 (1998).\n 4 Hans Bundgaard, Design of Prodrugs (1985).\n 5 International Application WO 92/08459.\n 6 Stephen M. Berge et al., Pharmaceutical Salts, 66\nJ. Pharm. Sci. 1 (1977).\n 7 Niclas Brynne et al., Influence of CYP2D6 Poly-\nmorphism on the Pharmacokinetics and Pharmacodynam-\nics of Tolterodine, 63 Clinical Pharmacology &\nTherapeutics 529 (1998).\n 8 International Application WO 94/11337.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 5\n\n\n\npharmaceutical salts. We will summarize each group in\nturn.\n The Detrol Label discloses the structure of tolterodine\nand its metabolism to 5-HMT via the enzyme CYP2D6.\nThe metabolite 5-HMT is reported to have antimuscarinic\nactivity similar to tolterodine and contribute to toltero-\ndine’s therapeutic effect. The Detrol Label taught that a\nsubset of the population (known as “poor metabolizers”)\nlacks CYP2D6 activity and instead metabolizes toltero-\ndine by means of the enzyme CYP34A. Since the CYP34A\npathway metabolizes tolterodine more slowly than\nCYP2D6, poor metabolizers have higher concentrations of\ntolterodine and negligible concentrations of 5-HMT.\nHowever, because the sum of unbound tolterodine and 5-\nHMT concentrations is similar in extensive (i.e., patients\nwith normal CYP2D6 activity) and poor metabolizers, the\nDetrol Label teaches that the net therapeutic activity of\ntolterodine would be similar between both groups.\n Brynne is a research paper that describes the influ-\nence of patients’ varying CYP2D6 activity on tolterodine\nactivity. Like the Detrol Label, Brynne posits that “the\nCYP2D6 polymorphism does not appear to be of great\nimportance in the antimuscarinic effect, probably because\nof the additive action of parent drug and active metabo-\nlite.” J.A. 301. However, Brynne did observe that\n“[t]olterodine is tenfold more lipophilic than 5-HM[T], and\nconsequently tolterodine penetrates membranes more\nrapidly.” J.A. 310. The reference suggests that this\ndifference might contribute to poor metabolizers experi-\nencing a slightly worse side effect than extensive metabo-\nlizers. But ultimately, Brynne concludes that the\nvariation in CYP2D6 activity between poor and extensive\nmetabolizers “does not appear to be of great pharmacody-\nnamic importance.” Id.\n Postlind, another published research paper, focuses\non tolterodine metabolism. J.A. 296. Postlind cautions\n\f6 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nthat tolterodine has a potential for drug-drug interactions\nbecause other drugs are metabolized by CYP2D6 and that\nCYP2D6 poor metabolizers could be particularly affected\nby such interactions.\n Bundgaard describes prodrugs and their design prin-\nciples. The reference defines a prodrug as “a pharmaco-\nlogically inactive derivative of a parent drug molecule\nthat requires spontaneous or enzymatic transformation\nwithin the body in order to release the active drug, and\nthat has improved delivery properties over the parent\ndrug molecule.” J.A. 316. Thus, “[t]he prodrug per se is\nan inactive species, and therefore, once its job is complet-\ned, intact prodrug represents unavailable drug.” J.A. 319.\nEsters are listed as common prodrug substituents. Specif-\nically, “[a]ctive drug species containing hydroxyl or car-\nboxyl groups can often be converted to prodrug esters\nfrom which the active forms are regenerated by esterases\nwithin the body.” J.A. 319; see J.A. 320 (listing ester\nprodrugs). Bundgaard further states that esters can be\nused to improve aqueous solubility of drugs containing a\nhydroxy group and that with esterification “it is feasible\nto obtain derivatives with almost any desirable hydro-\nphilicity or lipophilicity.” J.A. 321. Relatedly, Bundgaard\nPCT discloses an ester prodrug of morphine that improves\ntransdermal delivery and is more lipophilic than the\nparent drug.\n Berge and Johannson both disclose pharmaceutical\nsalts including fumarate salts.\n 2.\n In its obviousness analysis, the Board accepted that a\nperson of ordinary skill would have chosen 5-HMT as a\nlead compound for development in order to reduce the\nnumber of potential metabolic steps and to avoid\nCYP2D6-related drug-drug interactions. Decision, slip op.\nat 22. However, after considering expert testimony from\nboth the petitioners and UCB, the Board found that a\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 7\n\n\n\nperson of ordinary skill would not have been motivated to\nmodify 5-HMT to make a prodrug by replacing the 2-\nposition hydroxy group with an alkyl ester of six or fewer\ncarbons. Id. at 34–35, 40–41. This factual determination\nwas premised on several subsidiary findings that Ameri-\ngen challenges on appeal. We summarize these findings\nhere.\n The Board found that a person of ordinary skill would\nnot have been motivated to modify 5-HMT to improve its\nbioavailability. Decision, slip op. at 32–33. Petitioners’\nexpert, Dr. Patterson, testified that 5-HMT was insuffi-\nciently lipophilic because of its two hydroxy groups, and\nthat its lipophilicity would cause bioavailability problems.\nIn support, Dr. Patterson pointed to Brynne’s statement\nthat tolterodine is 10-fold more lipophilic than 5-HMT\nand could penetrate cell membranes more rapidly. UCB\nresponded that no prior art reference suggested that 5-\nHMT would not be well-absorbed, and that the lipophilici-\nty of 5-HMT relative to tolterodine, a known, well-\nabsorbed drug, did not show that 5-HMT had a bioavaila-\nbility problem.\n Furthermore, UCB’s expert, Dr. Roush, conducted an\nanalysis of 5-HMT using the “Rule of 5” discussed in a\nresearch article on drug delivery by Lipinski. 9 Dr. Patter-\nson agreed that a person of ordinary skill would consider\nthe Rule of 5. The Rule of 5 assesses four inherent prop-\nerties of a compound that may help to predict whether it\nwill have a bioavailability problem. 10 Dr. Roush consid-\n\n\n 9 Christopher Lipinski et al., Experimental and\nComputational Approaches to Estimate Solubility and\nPermeability in Drug Discovery and Development Settings,\n23 Advanced Drug Delivery Reviews 3 (1997).\n 10 Specifically, poor absorption is more likely under\nthe Rule of 5 if: (1) there are more than 5 hydrogen-bond\n\f8 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nered these properties as they pertained to 5-HMT and\nconcluded that none of them indicated that 5-HMT had a\nbioavailability problem. Dr. Patterson did not rebut this\nanalysis. The Board thus credited Dr. Roush and deter-\nmined that a person of ordinary skill would not have been\nmotivated to modify 5-HMT because of bioavailability\nconcerns. Decision, slip op. at 32–33.\n Given its determination that 5-HMT did not have a\nbioavailability problem, the Board found that a person of\nordinary skill would not have made a 5-HMT prodrug to\nsolve a bioavailability problem that did not exist. Deci-\nsion, slip op. at 35. Designing a prodrug was a complex\nendeavor, the Board found, as toxicity, bioavailability,\nand other drug characteristics must be monitored for two\ncompounds rather than just one. Id. The Board also\nfound that Bundgaard defined the prodrug form of a\ncompound as inactive, but the petitioners did not demon-\nstrate that esters of 5-HMT would be inactive. Id. at 36.\nMoreover, the petitioners did not point to any prodrugs\nanalogous to fesoterodine, for example, prodrugs in the\nsame chemical class, with the same mechanism of action,\nor in the same field of treatment. Id. at 36–37. The\nBoard thus found that a person of ordinary skill would not\nhave been motivated to develop a prodrug of 5-HMT.\n Even assuming that a person of ordinary skill would\nhave been motivated to modify 5-HMT, the Board found\nthat producing the specific claimed compounds would not\nhave been a matter of routine optimization. Id. at 40–43.\nNo prior art reference disclosed the molecule fesoterodine.\nId. at 38, 40. Considering competing expert testimony,\nthe Board determined that there were many possible\n\n\ndonors; (2) there are more than 10 hydrogen-bond accep-\ntors; (3) the molecular weight is greater than 500; and\n(4) the calculated log P is greater than 5.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 9\n\n\n\nmolecular modifications of 5-HMT consistent with a\nprodrug design. Id. at 40. For example, Bundgaard\nexplained that diesters could be used in a prodrug. Id.\nThe Board credited Dr. Roush’s testimony that a person of\nordinary skill would have considered esterifying the\nhydroxy groups at both the 2- and 5-positions. Id. at 42.\nAnd even if a person of ordinary skill only considered\nesterifying the 2-position hydroxy group, the Board cred-\nited Dr. Roush’s testimony that there was no scientific\njustification to limit the ester to six carbons or fewer. Id.\nat 43. Finally, even if the universe of possible esters was\nlimited to alkyl esters of six carbons or fewer at the 2-\nposition, that still left 86 possible monoesters. The Board\nfound that it would not have been routine to test each one.\nId. at 41. Altogether, the Board held that the prior art\ndid not suggest modifying 5-HMT to make the specific\nclaimed compounds. Id. at 40.\n Regarding the dependent claims, the Board held that\nit would not have been obvious to make the R-enantiomer\nor a fumarate salt of the claimed compounds. Id. at 45,\n47. As we resolve this appeal with respect to independent\nclaim 1, we do not further discuss the Board’s findings on\nthe dependent claims.\n Petitioners also argued, in a footnote in the petition,\nthat a person of ordinary skill would have been motivated\nto modify 5-HMT because at the time of the invention 5-\nHMT was covered by a patent. Id. at 23. The Board gave\nlittle weight to this argument. Id. at 24. Based on the\nabove findings, the Board concluded that the petitioners\ndid not sustain their burden to prove any of the instituted\nclaims unpatentable as obvious over the references in\neither ground. Id. at 48–50.\n Amerigen appealed. UCB moved to dismiss for lack of\nstanding, which we denied without prejudice to UCB\nraising its standing arguments at the merits stage.\nAmerigen Pharm. Ltd. v. UCB Pharma GmbH, No. 17-\n\f10 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n2596, ECF No. 23 (Fed. Cir. Mar. 15, 2018). As UCB’s\nstanding challenge implicates our jurisdiction, we begin\nwith standing and then turn to the merits.\n II. DISCUSSION\n A. Standing\n UCB argues that Amerigen lacks standing to appeal\nfrom the Board’s decision because the Food and Drug\nAdministration (“FDA”) will not approve Amerigen’s\nabbreviated new drug application (“ANDA”) until the\nexpiration of the ’650 patent, previously upheld in a\nseparate suit in the District of Delaware, in 2022. Accord-\ningly, UCB contends that Amerigen is foreclosed from\ninfringing the ’650 patent, and without a possibility of\ninfringement there can be no justiciable dispute. Sepa-\nrately, UCB argues any alleged injury is traceable to\nAmerigen’s own conduct, not UCB’s, because Amerigen\nacquiesced to the Delaware district court’s infringement\nand validity holdings.\n Amerigen responds that its ANDA product has al-\nready secured tentative approval from the FDA, that the\n’650 patent delays entry of its competing product, and\nthat invalidating the claims of the ’650 patent would\nadvance the launch of its product. By blocking its release\nof a competing drug, Amerigen argues that the ’650\npatent imposes a concrete injury sufficient for Article III\nstanding.\n Although we have jurisdiction to review final deci-\nsions of the Board under 28 U.S.C. § 1295(a)(4)(A), an\nappellant must meet “the irreducible constitutional\nminimum of standing,” Lujan v. Defenders of Wildlife, 504\nU.S. 555, 560 (1992), even if there is no such requirement\nin order to appear before the administrative agency being\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 11\n\n\n\nreviewed, Consumer Watchdog v. Wis. Alumni Research\nFound., 753 F.3d 1258, 1261 (Fed. Cir. 2014). 11 Standing\nrequires an appellant to have “(1) suffered an injury in\nfact, (2) that is fairly traceable to the challenged conduct\nof the defendant, and (3) that is likely to be redressed by a\nfavorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.\nCt. 1540, 1547 (2016). As the party seeking judicial\nreview, the appellant bears the burden of proving that it\nhas standing. Phigenix, Inc. v. Immunogen, Inc., 845 F.3d\n1168, 1171 (Fed. Cir. 2017). We accept as true Amerigen’s\nmaterial representations of fact for purposes of assessing\nits standing. See Warth v. Seldin, 422 U.S. 490, 501\n(1975); James v. J2 Cloud Servs., LLC, 887 F.3d 1368,\n1372 (Fed. Cir. 2018); see also Am. Inst. of Certified Pub.\nAccountants v. IRS, 804 F.3d 1193, 1197 (D.C. Cir. 2015).\n We agree with Amerigen that it has standing to ap-\npeal from the Board’s decision because the launch of its\ntentatively approved drug is blocked by the ’650 patent,\nand invalidation of the patent would advance its drug’s\nlaunch. The ’650 patent is listed in the FDA’s “Orange\nBook” 12 entry for Toviaz®. Amerigen has a Paragraph III\ncertification for the ’650 patent, 13 which means that the\n\n\n\n 11 However, “where Congress has accorded a proce-\ndural right to a litigant, such as the right to appeal an\nadministrative decision, certain requirements of stand-\ning—namely immediacy and redressability, as well as\nprudential aspects that are not part of Article III—may be\nrelaxed.” Consumer Watchdog, 753 F.3d at 1261 (citing\nMassachusetts v. EPA, 549 U.S. 497, 517–18 (2007)).\n 12 This publication is formally entitled “Approved\nDrug Products with Therapeutic Equivalence Evalua-\ntions.”\n 13 Amerigen had initially filed a Paragraph IV certi-\nfication against the ’650 patent. See 21 U.S.C.\n\f12 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nFDA will only approve Amerigen’s ANDA after the ’650\npatent has expired. 21 U.S.C. § 355(j)(5)(B)(ii). However,\nif the ’650 patent is held unpatentable through reversal of\nthe Board’s decision, then the New Drug Application\n(“NDA”) holder 14 must “promptly notify” the FDA that the\npatent “no longer meet[s] the statutory requirements for\nlisting.” 21 C.F.R. § 314.53(f)(2)(i). And § 314.53 express-\nly states that a patent does not meet the requirements for\nlisting “if there has been a judicial finding of invalidity for\na listed patent, from which no appeal has been or can be\ntaken.” Id. After a notification from the NDA holder that\na patent may no longer be listed, the FDA “will remove a\npatent . . . from the list if there is no first applicant eligi-\nble for 180–day exclusivity based on a paragraph IV\ncertification to that patent or after the 180–day exclusivi-\nty period of a first applicant based on that patent has\nexpired or has been extinguished.” Id.\n Amerigen has represented that its “ANDA has al-\nready received tentative approval and would be able to\nobtain final approval for launch in 2019 if the ’650 patent\nis invalidated.” Reply Br. 13. The ’650 patent expires on\nJuly 3, 2022. UCB’s other earlier-expiring patents listed\n\n\n\n§ 355(j)(2)(A)(vii)(IV). Pfizer and UCB then sued Ameri-\ngen for patent infringement under 35 U.S.C. § 271(e)(2),\nAmerigen stipulated to infringement, and the district\ncourt held the ’650 patent not invalid. Pfizer v. Sandoz,\nNo. 12-1110-GMS, 2016 WL 1611377, at *6, *10 (D. Del.\nApr. 20, 2016). Amerigen waived its right to appeal. The\ndistrict court’s holding that the ’650 patent was not inva-\nlid and was infringed resulted in the conversion of Ameri-\ngen’s Paragraph IV certification to a Paragraph III. See\n21 C.F.R. § 314.94(a)(12)(viii)(A).\n 14 The NDA holder is Pfizer Inc., which holds a li-\ncense to UCB’s ’650 patent.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 13\n\n\n\nin the Orange Book, which are not at issue in this appeal,\nexpire on May 11, 2019. Consequently, there would be a\nroughly three-year period beginning in May 2019 during\nwhich Amerigen’s sales would be blocked by the ’650\npatent. The record is unclear whether a different compa-\nny’s generic product is eligible for the 180–day exclusivity\nperiod. However, even assuming that another generic\nproduct is entitled to 180-day exclusivity, a conclusion\nfrom this court that the instituted claims of the ’650\npatent are unpatentable and the FDA’s consequent delist-\ning of the patent would enable Amerigen to launch its\ncompeting product substantially earlier than it otherwise\ncould upon the patent’s expiration. We thus conclude that\nAmerigen has a concrete, economic interest in the sales of\nits tentatively approved drug obstructed by the listing of\nthe ’650 patent, and has thereby demonstrated a contro-\nversy “of sufficient immediacy and reality” for Article III\nstanding. MedImmune, Inc. v. Genentech, Inc., 549 U.S.\n118, 127 (2007); see E.I. DuPont de Nemours & Co. v.\nSynvina C.V., 904 F.3d 996, 1004 (Fed. Cir. 2018).\n UCB’s arguments that Amerigen lacks standing are\nlargely premised on the theory that under the Hatch-\nWaxman Act, 21 U.S.C. §§ 355, 360 (2012), a “Paragraph\nIV certification is the fundamental, jurisdictional basis\nenabling parties to litigate Orange Book-listed patents in\nthe Article III courts,” and without that basis there can be\nno injury in fact. Appellee’s Br. 27. But this case does not\narise under the Hatch-Waxman Act, and the causes of\naction available under that Act do not necessarily control\nthe standing inquiry in an appeal from an IPR decision.\nThey do not control here because Amerigen does not rely\non a risk of infringement liability as a basis for injury in\nfact; rather, it contends that the mere listing of the ’650\npatent in the Orange Book inflicts a concrete commercial\ninjury redressable by this court.\n We have previously recognized that listing a patent in\nthe Orange Book may create a cognizable injury inde-\n\f14 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\npendent of the prospect of infringement liability. In\nApotex, Inc. v. Daiichi Sankyo, Inc., one generic company,\nApotex, sought to cause the forfeiture of a third-party\ngeneric company’s 180-day exclusivity period by securing\na declaratory judgment of noninfringement of Daiichi’s\npatent that had been disclaimed. 781 F.3d 1356, 1359–61\n(Fed. Cir. 2015). 15 Apotex could not show harm via in-\nfringement because the disclaimed patent could not be\ninfringed. But Apotex could show harm from the fact that\nthe patent was still listed in the Orange Book, because\nthe listing delayed the start of the third party’s 180-day\nexclusivity period, which in turn delayed the date on\nwhich Apotex could market its drug. Apotex argued that\na declaratory judgment of noninfringement, in accelerat-\ning the end of the third party’s exclusivity period, “would\nallow it to enter the market earlier than it could without\nthe judgment.” Id. at 1360. We agreed that Apotex\ndemonstrated a controversy “of sufficient immediacy and\nreality” for Article III standing. Id. at 1361–62 (quoting\nMedImmune, 549 U.S. at 127). That controversy origi-\nnated from the “listing of [a] patent, with its current\nconsequence of preventing FDA approval” of Apotex’s\nproposed drug during the other generic company’s exclu-\nsivity period. Id. at 1362.\n\n\n\n 15 The Hatch-Waxman Act, as amended by the Med-\nicare Modernization Act (“MMA”), Pub. L. No. 108-173,\n117 Stat. 2066 (2003), provides for forfeiture of a first\nfiler’s 180-day exclusivity under certain conditions, in-\ncluding via a declaratory judgment of non-infringement in\nfavor of a different generic company. 21 U.S.C.\n§ 355(j)(5)(D)(i)(I)(bb). Such a judgment triggers a 75-day\nperiod for the first filer to market its drug—and start its\n180 days of exclusivity—or otherwise lose its period of\nexclusivity. Id.\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 15\n\n\n\n This case presents the same essential scenario, where\nthe listing of a drug company’s patent delays the launch\nof a competing generic product. If Amerigen succeeds in\ninvalidating the ’650 patent here and having the patent\ndelisted, then it, like Apotex, could launch its proposed\ndrug substantially earlier than it otherwise could. Conse-\nquently, “by any common-sense measure,” Amerigen has a\n“substantial, concrete stake[] in whether” it succeeds in\nproving the invalidity of the ’650 patent. Id. at 1363.\n UCB contends that this case is controlled by Janssen\nPharmaceutica, N.V. v. Apotex, Inc., 540 F.3d 1353 (Fed.\nCir. 2008), not Daiichi. Similar to Daiichi, Janssen\ninvolved one generic company, coincidentally also Apotex,\nseeking a declaratory judgment of noninfringement of\nJanssen’s listed patent in order to trigger another generic\ncompany’s 180-day exclusivity period, thereby advancing\nthe launch of Apotex’s drug. 540 F.3d at 1358–60. How-\never, unlike Daiichi, Janssen applied the pre-MMA ver-\nsion of the Hatch-Waxman Act that did not provide an\nexpress path for one generic firm to trigger the forfeiture\nof the first filer’s 180-day exclusivity period. Daiichi, 781\nF.3d at 1367–68. Janssen thus concluded that the inabil-\nity of the later filing generic company “to promptly launch\nits generic [product] because of [the first filer’s] 180–day\nexclusivity period is not a cognizable Article III controver-\nsy, but a result envisioned by the Hatch-Waxman Act.”\n540 F.3d at 1361.\n The America Invents Act (“AIA”) and its provisions\ngoverning IPRs do not support an analogous statutory\nimplication. Congress granted parties broad access to\nchallenge patents through the IPR procedure. Any “per-\nson who is not the owner of a patent may file with the\n[Patent] Office a petition to institute an [IPR] of the\npatent.” 35 U.S.C. § 311. Likewise, any “party dissatis-\nfied with the final written decision of the [Board] . . . may\nappeal the decision . . . .” Id. § 319. The AIA thus pro-\nvides no basis for us to premise standing in an appeal\n\f16 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nfrom an IPR decision on the availability of particular\ncauses of action under the Hatch-Waxman Act. Rather,\nan appellant must demonstrate an injury consistent with\nthe generally applicable requirements of Article III, i.e., a\ncontroversy “of sufficient immediacy and reality” to war-\nrant the requested judicial relief. MedImmune, 549 U.S.\nat 127; DuPont, 904 F.3d at 1004. Because Amerigen has\ndemonstrated such a controversy traceable to UCB’s ’650\npatent and redressable by this court, it has standing to\nappeal from the Board’s decision even though it may be\nincapable (as a Paragraph III filer) of maintaining a\nparallel Hatch-Waxman suit.\n We are not persuaded by UCB’s remaining argu-\nments. UCB contends that any delisting-based relief\nwould be too speculative to support standing. However,\nas Amerigen has already been granted tentative approval\nfor its proposed drug, the only uncertainty is whether\nAmerigen would have to wait for another generic compa-\nny’s potential 180-day exclusivity period to expire. As we\nhave explained, Amerigen’s launch would be substantially\nadvanced even if another generic company has 180 days of\nexclusivity.\n UCB additionally disputes whether Amerigen’s al-\nleged injury is traceable to UCB. The injury plainly is\ncaused by UCB’s listing of the ’650 patent; absent that\nentry barrier, approval of Amerigen’s proposed drug\nwould be advanced. See Daiichi, 781 F.3d at 1363.\n For the foregoing reasons, we conclude that Amerigen\nhas standing to appeal from the Board’s decision. We\ntherefore proceed to the merits.\n B. Obviousness\n Amerigen argues that the Board did not properly con-\nsider the evidence in support of obviousness. In particu-\nlar, Amerigen alleges that: (1) the Board misunderstood\nAmerigen’s arguments concerning lipophilicity, and it\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 17\n\n\n\nshould have recognized that a person of ordinary skill\nwould have increased the lipophilicity of 5-HMT for its\nown sake; (2) the Board placed an excessive burden on\nAmerigen to show a motivation to make a 5-HMT pro-\ndrug; and (3) the Board failed to recognize that arriving at\nthe specific claimed compounds would have been routine\noptimization. Amerigen additionally contends that the\nBoard ignored its argument concerning the effect of the\npatent covering 5-HMT.\n UCB responds that Amerigen points to no legal error\nand that substantial evidence supports the Board’s find-\nings.\n Our review of a Board decision is limited. In re Baxter\nInt’l, Inc. 678 F.3d 1357, 1361 (Fed. Cir. 2012). While we\nreview the Board’s legal determinations de novo, In re\nElsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), we review\nthe Board’s factual findings underlying those determina-\ntions for substantial evidence, In re Gartside, 203 F.3d\n1305, 1316 (Fed. Cir. 2000). A finding is supported by\nsubstantial evidence if a reasonable mind might accept\nthe evidence as adequate to support the finding. Consol.\nEdison Co. v. NLRB, 305 U.S. 197, 229 (1938).\n Under 35 U.S.C. § 103 (2006), 16\n [a] patent may not be obtained . . . if the\n differences between the subject matter\n sought to be patented and the prior art are\n such that the subject matter as a whole\n would have been obvious at the time the\n invention was made to a person having\n\n\n 16 Because the application of the ’650 patent was\nfiled before March 16, 2013, the pre-Leahy-Smith America\nInvents Act version of § 103 applies. See Pub L. No. 112-\n29, 125 Stat. 284 (2011).\n\f18 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n ordinary skill in the art to which said sub-\n ject matter pertains.\nObviousness is a question of law based on underlying\nfacts, including the scope and content of the prior art,\ndifferences between the prior art and the claims at issue,\nthe level of ordinary skill, and relevant evidence of sec-\nondary considerations. Graham v. John Deere Co., 383\nU.S. 1, 17–18 (1966). Whether a person of ordinary skill\nwould have been motivated to modify the teachings of a\nreference is a question of fact. WBIP, LLC v. Kohler Co.,\n829 F.3d 1317, 1327 (Fed. Cir. 2016). In an IPR, the\npetitioner has the burden of proving unpatentability by a\npreponderance of the evidence. 35 U.S.C. § 316(e).\n We agree with UCB that the Board did not legally err\nand that substantial evidence supports the Board’s find-\nings. We address Amerigen’s arguments in turn.\n Amerigen argues that a person of ordinary skill would\nhave been motivated to modify 5-HMT to increase its\nlipophilicity. Based on the analysis of UCB’s expert, Dr.\nRoush, the Board disagreed. Decision, slip op. at 31–33.\nPetitioners argued that 5-HMT’s lower lipophilicity com-\npared to tolterodine suggested that 5-HMT had a bioa-\nvailability problem. Id. at 28 (“Petitioner argues that ‘a\nperson of ordinary skill in the art would have appreciated\nthat 5-HMT was [too hydrophilic] and needed to be modi-\nfied in a way to improve bioavailability . . . .’” (alteration\nin original)). Dr. Roush, however, testified that since 5-\nHMT did not violate any of the Lipinski rules, a person of\nordinary skill would not have thought 5-HMT had a\nbioavailability problem. Id. at 29–30. Specifically, Dr.\nRoush testified that Lipinski predicts a potential bioa-\nvailability problem if a compound meets two of the follow-\ning four factors: (1) more than 5 hydrogen bond donors;\n(2) a molecular weight over 500; (3) a logP over 5; and (4)\nmore than 10 hydrogen bond acceptors. According to Dr.\nRoush, 5-HMT had: (1) 2 hydrogen bond donors; (2) a\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 19\n\n\n\nmolecular weight of 341.5; (3) a logP of 3.7; and (4) 3\nhydrogen bond acceptors. As 5-HMT satisfied none of the\nLipinski factors, Dr. Roush found that “there would have\nbeen no reason to suspect that 5-HMT would possess poor\noral absorption.” J.A. 1295. Petitioners’ expert, Dr.\nPatterson, agreed that a person of ordinary skill would\nhave considered Lipinski in assessing bioavailability and\ndid not rebut Dr. Roush’s analysis. Decision, slip op. at\n30.\n The Board weighed the unrebutted testimony of Dr.\nRoush against petitioners’ argument based on the relative\nlipophilicity of 5-HMT to tolterodine and Dr. Patterson’s\ntestimony that 5-HMT’s two hydroxy groups suggested a\nbioavailability problem. Id. at 31. The Board found that\nDr. Roush better addressed the bioavailability issue and\nthat the lipophilicity of 5-HMT relative to tolterodine did\nnot demonstrate a bioavailability problem. Id. at 31–32.\nWe agree with UCB that a reasonable fact finder could\nhave weighed Dr. Roush’s testimony over Dr. Patterson’s.\nBased on the record before us, we conclude that substan-\ntial evidence supports the Board’s finding that a person of\nordinary skill would not have been motivated to modify 5-\nHMT to increase its lipophilicity.\n On appeal, Amerigen does not point to a specific error\nin the Board’s findings, but generally argues that “there\nneed not be a specific problem with bioavailability of 5-\nHMT for one of ordinary skill in the art to be motivated to\nmodify 5-HMT to further improve its bioavailability.”\nAppellant’s Br. 33. While that may be true in some cases,\nAmerigen’s conclusory argument is not sufficient to\novercome the substantial evidence to the contrary under-\npinning the Board’s analysis. The Board found that a\nperson of ordinary skill would have considered prodrug\ndevelopment to involve tradeoffs, including having to\nmonitor “the toxicity, bioavailability, receptor affinity,\npharmacokinetics, and pharmacodynamics of” two com-\npounds: the prodrug and the active compound. Decision,\n\f20 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\nslip op. at 35. Given such complexities, the Board deter-\nmined that a person of ordinary skill would not have\nturned to a prodrug approach “to solve an undefined\nproblem.” Id. We see no reversible error in the Board’s\nfindings.\n Amerigen then argues that increasing lipophilicity “in\nand of itself” (i.e., independent of bioavailability concerns)\nwould have motivated a person of ordinary skill to modify\n5-HMT. Appellant’s Br. 32. However, Amerigen did not\npresent this theory to the Board, points us to no evidence\nin the record in support of it, and does not explain why a\nskilled artisan would modify a drug to increase its lipo-\nphilicity independent of bioavailability. We thus do not\nconsider Amerigen’s argument persuasive.\n Even assuming that a person of ordinary skill would\nhave had some motivation to modify 5-HMT, the Board\nadditionally found that the petitioners did not prove that\na skilled artisan would have made the specific modifica-\ntions leading to the claimed compounds. Amerigen argues\nthat the Board erred in its findings. We disagree.\n The Board held that the petitioners did not sustain\ntheir burden of proof for primarily three reasons. First,\nthe Board considered Bundgaard’s teaching that the\nprodrug form of a drug is inactive. Decision, slip op. at\n35–36; see J.A. 316 (defining a prodrug as “a pharmacolog-\nically inactive derivative of a parent drug molecule that\nrequires spontaneous or enzymatic transformation within\nthe body in order to release the active drug, and that has\nimproved delivery properties over the parent drug mole-\ncule.”); J.A. 319 (“The prodrug per se is an inactive spe-\ncies, and therefore, once its job is completed, intact\nprodrug represents unavailable drug.”). Petitioners\npresented no evidence that an ester of 5-HMT would be\ninactive, and the Board thus found that this deficiency\nsupported nonobviousness. Decision, slip op. at 36.\nAmerigen argues that the Board imposed an “insur-\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 21\n\n\n\nmountable burden” on petitioners, Appellant’s Br. 38, but\nwe disagree. The Board sensibly found that a skilled\nartisan would “seek some degree of certainty that a pro-\ndrug of a particular molecule would be inactive before\nembarking on the process of attempting to create the\nprodrug,” and the petitioners failed to provide any such\ncertainty. Decision, slip op. at 36.\n This deficiency is compounded by the Board’s second\nfinding that the petitioners did not point to any prodrugs\nanalogous to 5-HMT. Specifically, the Board found no\nevidence of prodrugs in the same chemical class, with the\nsame mechanism of action, or in the same field of treat-\nment. Id. Again, Amerigen argues that the Board im-\nposed too high a burden on petitioners, effectively a\n“[r]equirement for a [p]rior [t]eaching of a 5-HMT [a]nalog\n[p]rodrug.” Appellant’s Br. 39. But the Board did not\nrequire such evidence, Decision, slip op. at 37 (“Petitioner\ndoes not have to demonstrate explicitly that there were\nprodrug examples analogous to 5-HMT . . . .”); it just\nfound that the absence of such evidence supported UCB’s\nargument that at the time of the invention skilled arti-\nsans had not considered “a prodrug of an antimuscarinic\ndrug or any sort of overactive bladder drug.” Id. Alt-\nhough not dispositive, the Board did not err in inquiring\nwhether there existed at the time of the invention pro-\ndrugs similar to the claimed compounds.\n Third, the Board found that it would not have been\nroutine to make the claimed molecular modifications to 5-\nHMT to produce the claimed compounds. Citing Dr.\nRoush, the Board found: (1) that a skilled artisan would\nhave considered diester substitutions as well as other\nprodrug moieties taught in Bundgaard, id. at 40; (2) that\na person of ordinary skill would have considered modify-\ning the 5-position in addition to the 2-position, id. at 41–\n42; and (3) that Bundgaard did not specifically teach the\nisobutyryl ester of fesoterodine, id. at 40.\n\f22 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n Amerigen argues that Bundgaard disclosed esters as\nprototypical prodrug moieties and that modifying the 2-\nposition alone would have been the most obvious choice.\nWhile the Board considered Bundgaard’s disclosure of\nester prodrugs, id. at 39, the Board also observed, citing\nDr. Roush, that Bundgaard taught many other prodrug\nsubstitutions that a person of ordinary skill would have\nconsidered, id. at 40. Dr. Roush testified that these\nadditional substitutions included ethers, carbamates,\ncarbonates, phosphate esters, Mannich bases, and mac-\nromolecular prodrugs. Moreover, the Board also found\nthat a person of ordinary skill would have considered\nmodifications at the 5-position because the prior art did\nnot indicate a preference for either the 2- or 5-position,\nand the inventors themselves considered modifying the 5-\nposition. Id. at 42. The Board did not consider the con-\ntrary evidence persuasive: Dr. Patterson argued that\nmodifying only the 5-position would pose a risk of trans-\nesterification, but did not sufficiently explain that risk,\nand petitioners primarily relied on a separate theory\naltogether regarding possible metabolic complications at\nthe 5-position that was devoid of evidentiary support, id.\nat 42. Amerigen has demonstrated no discernible error in\nthe Board’s technical analysis, and asks this court to\nreweigh these matters on appeal. We conclude that\nsubstantial evidence supports the Board’s determination\nthat the prior art did not suggest making the claimed\nmonoester substitutions solely at the 2-position.\n Altogether, the Board found that the petitioners nei-\nther established a general motivation to make a 5-HMT\nprodrug nor proved that the specific claimed modifications\nwould have been obvious. We conclude that Amerigen’s\nfactual challenges to the Board’s decision are without\nmerit and that substantial evidence supports the Board’s\nfindings.\n Amerigen additionally contends that the Board did\nnot give sufficient weight to its theory—presented in a\n\fAMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH 23\n\n\n\nsingle-sentence footnote to its argument about salt forms\nof fesoterodine—that a skilled artisan would have been\nmotivated to modify 5-HMT because 5-HMT was patented\nat the time of invention. However, even accepting, for the\nsake of discussion, that a patent on 5-HMT would provide\na commercial motivation for a skilled artisan to modify 5-\nHMT, such a motivation would not be sufficient to prove\nthat the claimed compounds would have been obvious. It\nwas Amerigen’s burden to show that the “prior art would\nhave suggested making the specific molecular modifica-\ntions necessary to achieve the claimed invention.” Takeda\nChem. Indus., Ltd. v. Alapharm Pty., Ltd., 492 F.3d 1350,\n1356 (Fed. Cir. 2007) (emphasis added) (quoting In re\nDeuel, 51 F.3d 1552, 1558 (Fed. Cir. 1995)). A general\nmotivation to modify 5-HMT based on a prior patent\nwould not suffice, and as we have already explained,\nAmerigen did not otherwise meet its burden to prove that\nthe specific claimed modifications to 5-HMT would have\nbeen obvious. Any compound may look obvious once\nsomeone has made it and found it to be useful, but work-\ning backwards from that compound, with the benefit of\nhindsight, once one is aware of it does not render it obvi-\nous.\n Amerigen also challenges the Board’s findings con-\ncerning whether it would have been routine to optimize\nthe possible monoesters at the 2-position and whether the\nparticular salts and enantiomer claimed in the dependent\nclaims would have been obvious. The Board held in\nUCB’s favor for each issue. Decision, slip op. at 42–47.\nHowever, we conclude that these findings were not neces-\nsary to the Board’s judgment, and we do not rely on them\nfor ours.\n CONCLUSION\n We have considered Amerigen’s remaining arguments\nbut do not find them persuasive. For the foregoing rea-\nsons, we affirm the Board’s decision.\n\f24 AMERIGEN PHARMACEUTICALS v. UCB PHARMA GMBH\n\n\n\n\n AFFIRMED\n[END_CASE]",
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4,581,213 | In Re: Guild Mortgage Company | 2019-01-14 | 17-2620 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before MOORE, REYNA, and CHEN, Circuit Judges.", "parties": "", "opinions": [{"author": "MOORE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n IN RE: GUILD MORTGAGE COMPANY,\n Appellant\n ______________________\n\n 2017-2620\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Trademark Trial and Appeal Board in No.\n86709944.\n ______________________\n\n Decided: January 14, 2019\n ______________________\n\n GEORGE EHRICH LENZ, Incorvaia & Associates, APC,\nCarlsbad, CA, argued for appellant. Also represented by\nJOEL L. INCORVAIA.\n\n THOMAS L. CASAGRANDE, Office of the Solicitor, United\nStates Patent and Trademark Office, Alexandria, VA,\nargued for appellee Andrei Iancu. Also represented by\nTHOMAS W. KRAUSE, CHRISTINA J. HIEBER, MARY BETH\nWALKER.\n ______________________\n\n Before MOORE, REYNA, and CHEN, Circuit Judges.\n\f2 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\nMOORE, Circuit Judge.\n\n Guild Mortgage Co. (“Guild”) appeals a decision of the\nTrademark Trial and Appeal Board affirming the examin-\ner’s refusal to register the mark “GUILD MORTGAGE\nCOMPANY” and design shown below based on a likeli-\nhood of confusion with the registered mark “GUILD\nINVESTMENT MANAGEMENT.” Because the Board\nfailed to consider relevant evidence and argument di-\nrected to DuPont factor 8, we vacate and remand.\n BACKGROUND\n Guild is in the business of making mortgage loans and\nhas used the mark “GUILD MORTGAGE COMPANY”\nsince 1960. Guild was founded in San Diego, California,\nand has expanded to over 40 other states. It applied to\nregister the mark “GUILD MORTGAGE COMPANY,” and\ndesign, in International Class 36 for “mortgage banking\nservices, namely, origination, acquisition, servicing,\nsecuritization and brokerage of mortgage loans.” J.A. 1–\n2; J.A. 32. The application states that color is not claimed\nas a feature of the mark and that the “mark consists of\nthe name Guild Mortgage Company with three lines\nshooting out above the letters I and L”: J.A. 2; J.A. 31.\n\fIN RE: GUILD MORTGAGE COMPANY 3\n\n\n\n Registration was refused due to a likelihood of confu-\nsion between Guild’s mark and the mark “GUILD\nINVESTMENT MANAGEMENT” registered in Interna-\ntional Class 36 for “investment advisory services,” which\nis owned by Guild Investment Management, Inc. (“Regis-\ntrant”), an investment company in Los Angeles, Califor-\nnia. The examiner concluded there was a likelihood of\nconfusion based on her findings that the marks, nature of\nthe services, and trade channels were similar. The Board\naffirmed those findings, concluding that, on balance, those\nfactors outweighed the Board’s finding that consumers\n“may exercise a certain degree of care in investing money,\nif not perhaps in seeking a mortgage loan.” J.A. 10–11.\nGuild appeals. We have jurisdiction under 28 U.S.C.\n§ 1295(a)(4)(B).\n DISCUSSION\n Section 2(d) of the Lanham Act provides that the Pa-\ntent and Trademark Office may refuse to register a\ntrademark if it so resembles a prior used or registered\nmark “as to be likely, when used on or in connection with\nthe goods of the applicant, to cause confusion, or to cause\nmistake, or to deceive.” 15 U.S.C. § 1052(d). Whether a\nlikelihood of confusion exists is determined using the\nfactors set out in In re E.I. DuPont DeNemours & Co., 476\nF.2d 1357, 1361 (C.C.P.A. 1973). Likelihood of confusion\nis a question of law based on underlying factual findings\nmade pursuant to the DuPont factors, which on appeal\nfrom the Board are reviewed for substantial evidence.\nStone Lion Capital Partners, LP v. Lion Capital LLP, 746\nF.3d 1317, 1321 (Fed. Cir. 2014). Those factors are:\n (1) The similarity or dissimilarity of the marks in\n their entireties as to appearance, sound, connota-\n tion and commercial impression.\n (2) The similarity or dissimilarity and nature of\n the goods or services as described in an applica-\n\f4 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\n tion or registration or in connection with which a\n prior mark is in use.\n (3) The similarity or dissimilarity of established,\n likely-to-continue trade channels.\n (4) The conditions under which and buyers to\n whom sales are made, i.e. “impulse” vs. careful,\n sophisticated purchasing.\n (5) The fame of the prior mark (sales, advertising,\n length of use).\n (6) The number and nature of similar marks in\n use on similar goods.\n (7) The nature and extent of any actual confusion.\n (8) The length of time during and conditions un-\n der which there has been concurrent use without\n evidence of actual confusion.\n (9) The variety of goods on which a mark is or is\n not used (house mark, “family” mark, product\n mark).\n (10) The market interface between applicant and\n the owner of a prior mark . . . .\n (11) The extent to which applicant has a right to\n exclude others from use of its mark on its goods.\n (12) The extent of potential confusion, i.e., wheth-\n er de minimis or substantial.\n (13) Any other established fact probative of the ef-\n fect of use.\nId. at 1319–20 (citing DuPont, 476 F.2d at 1361).\n On appeal, Guild argues the Board’s findings with re-\nspect to DuPont factors 1 through 3 are not supported by\nsubstantial evidence. It also argues the Board failed to\naddress its argument and evidence directed to DuPont\n\fIN RE: GUILD MORTGAGE COMPANY 5\n\n\n\nfactor 8. Because we agree that the Board failed to con-\nsider relevant argument and evidence directed to DuPont\nfactor 8, we vacate and remand and do not reach Guild’s\narguments regarding the other factors.\n “In every case turning on likelihood of confusion, it is\nthe duty of the examiner, the board and this court to find,\nupon consideration of all the evidence, whether or not\nconfusion appears likely.” DuPont, 476 F.2d at 1362\n(emphasis in original). “In discharging this duty, the\nthirteen DuPont factors ‘must be considered’ ‘when [they]\nare of record.’” In re Dixie Rests., Inc., 105 F.3d 1405,\n1406 (Fed. Cir. 1997) (quoting DuPont, 476 F.2d at 1361).\nThis is true even though “not all of the DuPont factors are\nrelevant or of similar weight in every case.” Id. at 1406;\nsee also Hewlett-Packard Co. v. Packard Press, Inc., 281\nF.3d 1261, 1265 (Fed. Cir. 2002) (noting the likelihood of\nconfusion analysis “considers all DuPont factors for which\nthere is evidence of record” but may focus on dispositive\nfactors).\n The Board erred by failing to address Guild’s argu-\nment and evidence related to DuPont factor 8, which\nexamines the “length of time during and conditions under\nwhich there has been concurrent use without evidence of\nactual confusion.” DuPont, 476 F.2d at 1361. In response\nto the examiner’s refusal to register Guild’s mark on the\nbasis of likelihood of confusion, Guild argued that it and\nRegistrant have coexisted in business for over 40 years\nwithout any evidence of actual confusion. Guild attached\nthe declaration of Mary Ann McGarry, its President and\nCEO, who stated that\n Guild is not aware of any instances of actual con-\n fusion, or of any evidence to indicate that actual\n confusion has ever existed between Guild’s use of\n the mark “GUILD MORTGAGE COMPANY” and\n the mark “GUILD INVESTMENT\n MANAGEMENT,” or any other mark incorporat-\n\f6 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\n ing the term “Guild.” Guild has never received\n any communication from Guild Investment Man-\n agement, Inc., or from any third party contending\n that Guild’s use of its mark has infringed upon\n Guild Investment Management Inc[.]’s mark, or\n has caused confusion with regard to any other\n business which uses or incorporates the word\n “Guild” in its mark, in any way. Guild has no\n knowledge of ever receiving any inquiries from\n consumers regarding investment management\n services of any kind. Guild has never received\n any communication from consumers or any third\n party inquiring as to whether Guild was in any\n way affiliated with Guild Investment Manage-\n ment, Inc.\nJ.A. 139 ¶ 5; see also J.A. 130. The examiner rejected this\nargument in a final office action refusing registration of\nGuild’s mark. On appeal to the Board, Guild argued that\nas to DuPont factor 8, the examiner failed to consider that\n“the fact that there has been over 40 years of concurrent\nuse of [both marks] with no evidence of actual confusion\ndemonstrates that there is no possibility of confusion in\nthe minds of consumers between [both marks].” J.A. 439\n(emphasis in original) (citing J.A. 139 ¶ 5); see also J.A.\n438–40, 420, 474.\n In its decision, the Board stated that it “consider[ed]\nthe DuPont factors for which there were arguments and\nevidence” and considered the others to be neutral. J.A. 3.\nThe Board’s opinion, however, provides no indication that\nit considered DuPont factor 8, for which there was argu-\nment and evidence. The Board’s opinion does not mention\nfactor 8, let alone address Guild’s argument and evidence\ndirected to that factor. The Board erred in failing to\nconsider Guild’s arguments and evidence. Cf. Juice\nGeneration, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340\n(Fed. Cir. 2015) (vacating and remanding where the\nBoard did not properly assess all relevant evidence);\n\fIN RE: GUILD MORTGAGE COMPANY 7\n\n\n\nHewlett-Packard, 281 F.3d at 1267 (“Because it must\nconsider each DuPont factor for which it has evidence of\nrecord, the Board erred when it declined to compare the\nservices described in Packard Press’s application with the\ngoods and services described in HP’s registrations.” (cita-\ntion omitted)); DuPont, 476 F.2d at 1362 (“We find no\nwarrant, in the statute or elsewhere, for discarding any\nevidence bearing on the question of likelihood of confu-\nsion.” (emphasis in original)).\n The PTO responds that the Board properly need not\ncredit this argument because in ex parte registration\nproceedings, the “uncorroborated statements of no known\ninstances of actual confusion” of the only party involved in\nthe case are “of little evidentiary value.” Appellee’s Br. 42\n(quoting In re Majestic Distilling Co., 315 F.3d 1311, 1317\n(Fed. Cir. 2003)). And during oral argument, the PTO\nargued that evidence related to DuPont factor 8 was\n“irrelevant.” Oral Arg. at 24:06–25:12, 26:36–27:40. But\nthese proclamations to dismiss Guild’s evidence out of\nhand sweep too broadly. DuPont factor 7 considers the\n“nature and extent of any actual confusion.” DuPont\nfactor 8 considers the “length of time during and condi-\ntions under which there has been concurrent use without\nevidence of actual confusion.” In Majestic Distilling, this\ncourt held, “[w]ith regard to the seventh DuPont factor,\nwe agree with the Board that Majestic’s uncorroborated\nstatements of no known instances of actual confusion are\nof little evidentiary value.” 315 F.3d at 1317. The Majes-\ntic Distilling court did not extend this holding to the\neighth factor, which it termed one of Majestic’s “principal\nchallenge[s].” Id. The court considered evidence that the\nmarks were used concurrently for 16 years without creat-\ning confusion. Id. Such evidence weighs against a likeli-\nhood of confusion, but must then be balanced against the\nother evidence of record. The Majestic Distilling court\nheld that while “Majestic’s principal arguments are not\n\f8 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\nwithout merit, . . . we find the balance in this case tilts\ntowards a likelihood of confusion.” Id. at 1319.\n In this case, although Guild did not submit declara-\ntions from the owner of the registered mark or other\nparties testifying as to the absence of actual confusion,\nGuild nonetheless presented evidence of concurrent use of\nthe two marks for a particularly long period of time—over\n40 years—in which the two businesses operated in the\nsame geographic market—southern California—without\nany evidence of actual confusion. Further, the Board has\nfound that Guild’s and Registrant’s services are similar\nand move in the same channels of trade, which is relevant\nwhen assessing whether the absence of actual confusion is\nindicative of the likelihood of confusion. The Board erred\nin its analysis by failing to consider this evidence and\nargument as to factor 8. Because this evidence weighs in\nfavor of no likelihood of confusion, we do not deem the\nBoard’s error harmless. We make no assessment as to the\nevidentiary weight that should be given to Guild’s CEO’s\ndeclaration and simply hold that it was error to not con-\nsider it. We leave it to the Board to reconsider its likeli-\nhood of confusion determination in the first instance in\nlight of all the evidence.\n CONCLUSION\n For the foregoing reasons, we vacate the Board’s deci-\nsion that there is a likelihood of confusion between the\nmarks, and we remand for further proceedings consistent\nwith this opinion.\n VACATED AND REMANDED\n COSTS\n Costs to Appellant.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358466/", "author_raw": "MOORE, Circuit Judge."}]} | MOORE | REYNA | CHEN | 1 | {"MOORE": ", Circuit", "REYNA": ", Circuit", "CHEN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581213/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: In Re: Guild Mortgage Company\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n IN RE: GUILD MORTGAGE COMPANY,\n Appellant\n ______________________\n\n 2017-2620\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Trademark Trial and Appeal Board in No.\n86709944.\n ______________________\n\n Decided: January 14, 2019\n ______________________\n\n GEORGE EHRICH LENZ, Incorvaia & Associates, APC,\nCarlsbad, CA, argued for appellant. Also represented by\nJOEL L. INCORVAIA.\n\n THOMAS L. CASAGRANDE, Office of the Solicitor, United\nStates Patent and Trademark Office, Alexandria, VA,\nargued for appellee Andrei Iancu. Also represented by\nTHOMAS W. KRAUSE, CHRISTINA J. HIEBER, MARY BETH\nWALKER.\n ______________________\n\n Before MOORE, REYNA, and CHEN, Circuit Judges.\n\f2 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\nMOORE, Circuit Judge.\n\n Guild Mortgage Co. (“Guild”) appeals a decision of the\nTrademark Trial and Appeal Board affirming the examin-\ner’s refusal to register the mark “GUILD MORTGAGE\nCOMPANY” and design shown below based on a likeli-\nhood of confusion with the registered mark “GUILD\nINVESTMENT MANAGEMENT.” Because the Board\nfailed to consider relevant evidence and argument di-\nrected to DuPont factor 8, we vacate and remand.\n BACKGROUND\n Guild is in the business of making mortgage loans and\nhas used the mark “GUILD MORTGAGE COMPANY”\nsince 1960. Guild was founded in San Diego, California,\nand has expanded to over 40 other states. It applied to\nregister the mark “GUILD MORTGAGE COMPANY,” and\ndesign, in International Class 36 for “mortgage banking\nservices, namely, origination, acquisition, servicing,\nsecuritization and brokerage of mortgage loans.” J.A. 1–\n2; J.A. 32. The application states that color is not claimed\nas a feature of the mark and that the “mark consists of\nthe name Guild Mortgage Company with three lines\nshooting out above the letters I and L”: J.A. 2; J.A. 31.\n\fIN RE: GUILD MORTGAGE COMPANY 3\n\n\n\n Registration was refused due to a likelihood of confu-\nsion between Guild’s mark and the mark “GUILD\nINVESTMENT MANAGEMENT” registered in Interna-\ntional Class 36 for “investment advisory services,” which\nis owned by Guild Investment Management, Inc. (“Regis-\ntrant”), an investment company in Los Angeles, Califor-\nnia. The examiner concluded there was a likelihood of\nconfusion based on her findings that the marks, nature of\nthe services, and trade channels were similar. The Board\naffirmed those findings, concluding that, on balance, those\nfactors outweighed the Board’s finding that consumers\n“may exercise a certain degree of care in investing money,\nif not perhaps in seeking a mortgage loan.” J.A. 10–11.\nGuild appeals. We have jurisdiction under 28 U.S.C.\n§ 1295(a)(4)(B).\n DISCUSSION\n Section 2(d) of the Lanham Act provides that the Pa-\ntent and Trademark Office may refuse to register a\ntrademark if it so resembles a prior used or registered\nmark “as to be likely, when used on or in connection with\nthe goods of the applicant, to cause confusion, or to cause\nmistake, or to deceive.” 15 U.S.C. § 1052(d). Whether a\nlikelihood of confusion exists is determined using the\nfactors set out in In re E.I. DuPont DeNemours & Co., 476\nF.2d 1357, 1361 (C.C.P.A. 1973). Likelihood of confusion\nis a question of law based on underlying factual findings\nmade pursuant to the DuPont factors, which on appeal\nfrom the Board are reviewed for substantial evidence.\nStone Lion Capital Partners, LP v. Lion Capital LLP, 746\nF.3d 1317, 1321 (Fed. Cir. 2014). Those factors are:\n (1) The similarity or dissimilarity of the marks in\n their entireties as to appearance, sound, connota-\n tion and commercial impression.\n (2) The similarity or dissimilarity and nature of\n the goods or services as described in an applica-\n\f4 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\n tion or registration or in connection with which a\n prior mark is in use.\n (3) The similarity or dissimilarity of established,\n likely-to-continue trade channels.\n (4) The conditions under which and buyers to\n whom sales are made, i.e. “impulse” vs. careful,\n sophisticated purchasing.\n (5) The fame of the prior mark (sales, advertising,\n length of use).\n (6) The number and nature of similar marks in\n use on similar goods.\n (7) The nature and extent of any actual confusion.\n (8) The length of time during and conditions un-\n der which there has been concurrent use without\n evidence of actual confusion.\n (9) The variety of goods on which a mark is or is\n not used (house mark, “family” mark, product\n mark).\n (10) The market interface between applicant and\n the owner of a prior mark . . . .\n (11) The extent to which applicant has a right to\n exclude others from use of its mark on its goods.\n (12) The extent of potential confusion, i.e., wheth-\n er de minimis or substantial.\n (13) Any other established fact probative of the ef-\n fect of use.\nId. at 1319–20 (citing DuPont, 476 F.2d at 1361).\n On appeal, Guild argues the Board’s findings with re-\nspect to DuPont factors 1 through 3 are not supported by\nsubstantial evidence. It also argues the Board failed to\naddress its argument and evidence directed to DuPont\n\fIN RE: GUILD MORTGAGE COMPANY 5\n\n\n\nfactor 8. Because we agree that the Board failed to con-\nsider relevant argument and evidence directed to DuPont\nfactor 8, we vacate and remand and do not reach Guild’s\narguments regarding the other factors.\n “In every case turning on likelihood of confusion, it is\nthe duty of the examiner, the board and this court to find,\nupon consideration of all the evidence, whether or not\nconfusion appears likely.” DuPont, 476 F.2d at 1362\n(emphasis in original). “In discharging this duty, the\nthirteen DuPont factors ‘must be considered’ ‘when [they]\nare of record.’” In re Dixie Rests., Inc., 105 F.3d 1405,\n1406 (Fed. Cir. 1997) (quoting DuPont, 476 F.2d at 1361).\nThis is true even though “not all of the DuPont factors are\nrelevant or of similar weight in every case.” Id. at 1406;\nsee also Hewlett-Packard Co. v. Packard Press, Inc., 281\nF.3d 1261, 1265 (Fed. Cir. 2002) (noting the likelihood of\nconfusion analysis “considers all DuPont factors for which\nthere is evidence of record” but may focus on dispositive\nfactors).\n The Board erred by failing to address Guild’s argu-\nment and evidence related to DuPont factor 8, which\nexamines the “length of time during and conditions under\nwhich there has been concurrent use without evidence of\nactual confusion.” DuPont, 476 F.2d at 1361. In response\nto the examiner’s refusal to register Guild’s mark on the\nbasis of likelihood of confusion, Guild argued that it and\nRegistrant have coexisted in business for over 40 years\nwithout any evidence of actual confusion. Guild attached\nthe declaration of Mary Ann McGarry, its President and\nCEO, who stated that\n Guild is not aware of any instances of actual con-\n fusion, or of any evidence to indicate that actual\n confusion has ever existed between Guild’s use of\n the mark “GUILD MORTGAGE COMPANY” and\n the mark “GUILD INVESTMENT\n MANAGEMENT,” or any other mark incorporat-\n\f6 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\n ing the term “Guild.” Guild has never received\n any communication from Guild Investment Man-\n agement, Inc., or from any third party contending\n that Guild’s use of its mark has infringed upon\n Guild Investment Management Inc[.]’s mark, or\n has caused confusion with regard to any other\n business which uses or incorporates the word\n “Guild” in its mark, in any way. Guild has no\n knowledge of ever receiving any inquiries from\n consumers regarding investment management\n services of any kind. Guild has never received\n any communication from consumers or any third\n party inquiring as to whether Guild was in any\n way affiliated with Guild Investment Manage-\n ment, Inc.\nJ.A. 139 ¶ 5; see also J.A. 130. The examiner rejected this\nargument in a final office action refusing registration of\nGuild’s mark. On appeal to the Board, Guild argued that\nas to DuPont factor 8, the examiner failed to consider that\n“the fact that there has been over 40 years of concurrent\nuse of [both marks] with no evidence of actual confusion\ndemonstrates that there is no possibility of confusion in\nthe minds of consumers between [both marks].” J.A. 439\n(emphasis in original) (citing J.A. 139 ¶ 5); see also J.A.\n438–40, 420, 474.\n In its decision, the Board stated that it “consider[ed]\nthe DuPont factors for which there were arguments and\nevidence” and considered the others to be neutral. J.A. 3.\nThe Board’s opinion, however, provides no indication that\nit considered DuPont factor 8, for which there was argu-\nment and evidence. The Board’s opinion does not mention\nfactor 8, let alone address Guild’s argument and evidence\ndirected to that factor. The Board erred in failing to\nconsider Guild’s arguments and evidence. Cf. Juice\nGeneration, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340\n(Fed. Cir. 2015) (vacating and remanding where the\nBoard did not properly assess all relevant evidence);\n\fIN RE: GUILD MORTGAGE COMPANY 7\n\n\n\nHewlett-Packard, 281 F.3d at 1267 (“Because it must\nconsider each DuPont factor for which it has evidence of\nrecord, the Board erred when it declined to compare the\nservices described in Packard Press’s application with the\ngoods and services described in HP’s registrations.” (cita-\ntion omitted)); DuPont, 476 F.2d at 1362 (“We find no\nwarrant, in the statute or elsewhere, for discarding any\nevidence bearing on the question of likelihood of confu-\nsion.” (emphasis in original)).\n The PTO responds that the Board properly need not\ncredit this argument because in ex parte registration\nproceedings, the “uncorroborated statements of no known\ninstances of actual confusion” of the only party involved in\nthe case are “of little evidentiary value.” Appellee’s Br. 42\n(quoting In re Majestic Distilling Co., 315 F.3d 1311, 1317\n(Fed. Cir. 2003)). And during oral argument, the PTO\nargued that evidence related to DuPont factor 8 was\n“irrelevant.” Oral Arg. at 24:06–25:12, 26:36–27:40. But\nthese proclamations to dismiss Guild’s evidence out of\nhand sweep too broadly. DuPont factor 7 considers the\n“nature and extent of any actual confusion.” DuPont\nfactor 8 considers the “length of time during and condi-\ntions under which there has been concurrent use without\nevidence of actual confusion.” In Majestic Distilling, this\ncourt held, “[w]ith regard to the seventh DuPont factor,\nwe agree with the Board that Majestic’s uncorroborated\nstatements of no known instances of actual confusion are\nof little evidentiary value.” 315 F.3d at 1317. The Majes-\ntic Distilling court did not extend this holding to the\neighth factor, which it termed one of Majestic’s “principal\nchallenge[s].” Id. The court considered evidence that the\nmarks were used concurrently for 16 years without creat-\ning confusion. Id. Such evidence weighs against a likeli-\nhood of confusion, but must then be balanced against the\nother evidence of record. The Majestic Distilling court\nheld that while “Majestic’s principal arguments are not\n\f8 IN RE: GUILD MORTGAGE COMPANY\n\n\n\n\nwithout merit, . . . we find the balance in this case tilts\ntowards a likelihood of confusion.” Id. at 1319.\n In this case, although Guild did not submit declara-\ntions from the owner of the registered mark or other\nparties testifying as to the absence of actual confusion,\nGuild nonetheless presented evidence of concurrent use of\nthe two marks for a particularly long period of time—over\n40 years—in which the two businesses operated in the\nsame geographic market—southern California—without\nany evidence of actual confusion. Further, the Board has\nfound that Guild’s and Registrant’s services are similar\nand move in the same channels of trade, which is relevant\nwhen assessing whether the absence of actual confusion is\nindicative of the likelihood of confusion. The Board erred\nin its analysis by failing to consider this evidence and\nargument as to factor 8. Because this evidence weighs in\nfavor of no likelihood of confusion, we do not deem the\nBoard’s error harmless. We make no assessment as to the\nevidentiary weight that should be given to Guild’s CEO’s\ndeclaration and simply hold that it was error to not con-\nsider it. We leave it to the Board to reconsider its likeli-\nhood of confusion determination in the first instance in\nlight of all the evidence.\n CONCLUSION\n For the foregoing reasons, we vacate the Board’s deci-\nsion that there is a likelihood of confusion between the\nmarks, and we remand for further proceedings consistent\nwith this opinion.\n VACATED AND REMANDED\n COSTS\n Costs to Appellant.\n[END_CASE]",
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4,581,215 | Hanh DO, Petitioner v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent | Do v. Dep't of Hous. & Urban Dev. | 2019-01-14 | 2018-1147 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Reyna, Chen", "parties": "", "opinions": [{"author": "DYK, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n HANH DO,\n Petitioner\n\n v.\n\n DEPARTMENT OF HOUSING AND URBAN\n DEVELOPMENT,\n Respondent\n ______________________\n\n 2018-1147\n ______________________\n\n Petition for review of the Merit Systems Protection\nBoard in No. DC-0752-17-0149-I-1.\n ______________________\n\n Decided: January 14, 2019\n ______________________\n\n TAMARA LOUISE MILLER, MillerMasciola, Washington,\nDC, argued for petitioner.\n\n SONIA W. MURPHY, Commercial Litigation Branch,\nCivil Division, United States Department of Justice,\nWashington, DC, argued for respondent. Also represent-\ned by RETA EMMA BEZAK, REGINALD THOMAS B LADES, JR .,\nROBERT EDWARD KIRSCHMAN, JR., JOSEPH H. HUNT.\n ______________________\n\n Before DYK, REYNA, and CHEN, Circuit Judges.\n\f2 DO v. HUD\n\n\n\n\nDYK, Circuit Judge.\n Hanh Do petitions for review of a decision of the Merit\nSystems Protection Board (“Board”). The Board sustained\nthe Department of Housing and Urban Development’s\n(“HUD’s” or “agency’s”) action demoting and suspending\nDo. In its notice of proposed action, HUD charged Do\nwith “negligence of duty” for hiring and later promoting\nan employee when Do knew that the employee did not\nhave a college degree, which the agency viewed as a\nrequirement. On appeal, the Board agreed with Do that a\ncollege degree was not required and that the employee\ncould alternatively qualify for the positions by having a\ncombination of education and experience. The Board,\nnonetheless, sustained the charge, concluding that Do\nwas negligent because she failed to ensure that the em-\nployee met the alternative qualification requirements.\n We hold that Do’s due process rights were violated be-\ncause the Board exceeded the scope of the agency’s\ncharge, relying on a new ground to sustain the discipline.\nWe reverse and remand.\n BACKGROUND\n Do has been a government employee since 1990.\nFrom 1990 to 1998, Do worked as an auditor for the\nInternal Revenue Service. In 1998, HUD Office of Inspec-\ntor General (“OIG”) hired Do as auditor in the Infor-\nmation Systems Audit Division. She was promoted to\nAssistant Director of that division and then to Director in\n2003 and 2005, respectively. She held the position of\nDirector until she was demoted on November 27, 2016.\n In November 2006, Do was responsible for selecting\ncandidates for auditor positions in her division. Uyen\nAsuncion applied for a GS-11 auditor position in Do’s\ndivision. At the time she applied, Asuncion was working\nas a GS-11 auditor at the Department of Justice (“DOJ”).\n\fDO v. HUD 3\n\n\n\nBoth on her resume and Questionnaire for Public Trust\nPositions, Asuncion claimed she had a college degree in\naccounting.\n In December 2006, a pre-employment background in-\nvestigation revealed that Asuncion did not have a degree\nin accounting. Do was informed of this discrepancy and\nquestioned Asuncion about it. It turned out that Asun-\ncion was never awarded her degree because, even though\nshe had completed the required coursework, her grade\npoint average was not high enough for the university to\nconfer the degree. Apparently, Asuncion needed to take\none additional course to raise her grade point average to\nmeet the minimum and obtain the degree.\n Asuncion told Do that she had made an honest mis-\ntake and believed that she had completed the require-\nments for her degree when she applied. Asuncion\npromised to complete an additional college course to\nsecure her degree. After conferring with her supervisor,\nDo approved Asuncion’s selection for the auditor position.\nAt the same time, Do urged Asuncion to complete her\ndegree.\n Over the next few years, Asuncion was promoted to a\nGS-12 auditor position and then to a GS-13 auditor posi-\ntion. In 2009, Do posted two GS-14 auditor positions (one\nof which was created with Asuncion in mind). Asuncion\napplied for one of the positions, and human resources\nflagged Asuncion “as a qualified candidate” and included\nher on a list of “eligible candidates” for the position. J.A.\n3. Do selected Asuncion for one of the positions. At that\ntime, Do knew that Asuncion still did not have an ac-\ncounting degree.\n In 2013 or 2014, Do consulted with her supervisor re-\ngarding Asuncion’s lack of degree. After consulting with\nhuman resources, Do’s supervisor advised Do that Asun-\n\f4 DO v. HUD\n\n\n\n\ncion could continue as an auditor but must obtain her\ndegree. Asuncion resigned in March 2016.\n On July 20, 2016, HUD issued a notice of proposal to\ndemote Do from the position of Director (GS-15) to Non-\nsupervisory Senior Auditor (GS-14) and to suspend her for\nfourteen days for negligence of duty. The notice alleged\nthat Do was negligent in hiring Asuncion in 2006 and\npromoting her in 2009 because a college degree was\n“required for the position[s],” and “Asuncion . . . admitted\nto [Do] that she did not have her degree.” J.A. 367. Do\nresponded both in writing and orally to the agency. On\nNovember 9, 2016, after considering Do’s submitted\nreplies, the HUD deciding official issued a formal written\ndecision, concluding that “demotion and suspension [we]re\nwarranted and serve to promote the efficiency of the\nservice.” J.A. 355. Do was demoted and suspended\neffective November 27, 2016.\n Do timely appealed to the Board. After a hearing, the\nadministrative judge sustained the agency’s action. Do\ndid not appeal to the full Board (which then lacked a\nquorum), and the administrative judge’s decision became\nthe final decision of the Board.\n Do petitioned for review in our court. We have juris-\ndiction under 5 U.S.C. § 7703(b)(1) and 28 U.S.C.\n§ 1295(a)(9). In reviewing the Board’s decision, we must\naffirm the decision unless it is “(1) arbitrary, capricious,\nan abuse of discretion, or otherwise not in accordance\nwith law; (2) obtained without procedures required by\nlaw, rule, or regulation having been followed; or\n(3) unsupported by substantial evidence.” 5 U.S.C.\n§ 7703(c); Ward v. U.S. Postal Serv., 634 F.3d 1274, 1278\n(Fed. Cir. 2011). “We ‘must reverse a decision of the\nBoard if it . . . is not in accordance with the requirements\nof the Due Process Clause of the Fifth Amendment.’”\nWard, 634 F.3d at 1278 (alteration in original) (quoting\n\fDO v. HUD 5\n\n\n\nBlank v. Dep’t of the Army, 247 F.3d 1225, 1228 (Fed. Cir.\n2001)).\n DISCUSSION\n I\n In general, public employees possess a constitutional-\nly protected property right in their employment and are\nentitled to pre-deprivation due process. See Cleveland Bd.\nof Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Stone v.\nFed. Deposit Ins. Corp., 179 F.3d 1368, 1374–76 (Fed. Cir.\n1999) (“An employee is entitled to a certain amount of due\nprocess rights at each stage and, when these rights are\nundermined, the employee is entitled to relief regardless\nof the stage of the proceedings.”). “The essential require-\nments of due process . . . are notice and an opportunity to\nbe heard.” Loudermill, 470 U.S. at 546. As the Supreme\nCourt stated in Loudermill, due process “requires some\nkind of hearing prior to the discharge of an employee.” Id.\nat 542 (quotation marks and citations omitted). Pre-\ntermination due process is important because “[e]ven\nwhere the facts are clear, the appropriateness or necessity\nof the discharge may not be; in such cases, the only mean-\ningful opportunity to invoke the discretion of the deci-\nsionmaker is likely to be before the termination takes\neffect.” Id. at 543; see also Young v. Dep’t of Housing &\nUrban Devel., 706 F.3d 1372, 1377 (Fed. Cir. 2013) (“[A]n\nemployee is entitled to notice of the charges against him,\nan explanation of the employer’s evidence, and an oppor-\ntunity to present his side of the story before termination.”\n(citing Stone, 179 F.3d at 1376)); see also 2 Richard J.\nPierce, Jr., Admin. Law Treatise § 9.5, p. 823 (5th ed.\n2010) (“Notice is one of the most important procedural\nsafeguards.”).\n To be sure, not every disciplinary action requires pre-\ndeprivation notice and opportunity to be heard. For\nexample, in Gilbert v. Homar, 520 U.S. 924, 933 (1997),\n\f6 DO v. HUD\n\n\n\n\nthe Supreme Court held that a pre-disciplinary hearing\nwas not required where the disciplinary action—\nsuspension—was only temporary, and “the State ha[d] a\nsignificant interest in immediately suspending” an em-\nployee who had been arrested and charged with a felony.\n Although Do’s case does not involve a termination, the\ngovernment does not argue that demotions should be\ntreated differently than terminations or that there was a\nneed to take action quickly without advance notice and\nopportunity to be heard. In the past, this court has as-\nsumed in demotion cases that there is a right to pre-\ndemotion notice and an opportunity to be heard. See, e.g.,\nNguyen v. Dep’t of Homeland Sec., 737 F.3d 711, 718 (Fed.\nCir. 2013); Pope v. U.S. Postal Serv., 114 F.3d 1144, 1148–\n49 (Fed. Cir. 1997); see also Ciambriello v. Cty. of Nassau,\n292 F.3d 307, 321 (2d Cir. 2002) (holding “that the process\ndue [to the employee] was notice of the charges against\nhim and the opportunity to be heard before demotion”).\n It is well-established that, in the civil service system,\n“[o]nly the charge and specifications set out in the Notice\nmay be used to justify punishment because due process\nrequires that an employee be given notice of the charges\nagainst him in sufficient detail to allow the employee to\nmake an informed reply.” O’Keefe v. U.S. Postal Serv.,\n318 F.3d 1310, 1315 (Fed. Cir. 2002); see Lachance v.\nMerit Sys. Prot. Bd., 147 F.3d 1367, 1371–72 (Fed. Cir.\n1998); Brook v. Corrado, 999 F.2d 523, 526–27 (Fed. Cir.\n1993). When an agency relies on a charge not included in\nthe notice, due process is violated because the notice does\nnot fully inform the employee of the grounds for the\nproposed removal and deprives the employee of an oppor-\ntunity to make an informed response before the agency\ntakes disciplinary action. See Brook, 999 F.2d at 527;\nPope, 114 F.3d at 1148–49.\n\fDO v. HUD 7\n\n\n\n Likewise, the Board is limited to reviewing the\ngrounds invoked by the agency and may not “substitute\nwhat it considers to be a better basis for removal than\nwhat was identified by the agency.” O’Keefe, 318 F.3d at\n1315 (citations omitted); see James v. Dale, 355 F.3d 1375,\n1378–79 (Fed. Cir. 2004); Licausi v. Office of Pers. Mgmt.,\n350 F.3d 1359, 1363 n.1 (Fed. Cir. 2003); see also Horne v.\nMerit Sys. Prot. Bd., 684 F.2d 155, 157–58 (D.C. Cir.\n1982) (cited with approval in Licausi, 350 F.3d at 1363).\n“Simply put, the Board should not be in the business of\naffirming administrative decisions based upon how an\nagency might have acted if it had followed proper proce-\ndures.” Horne, 684 F.2d at 157–58.\n For example, in O’Keefe, we held that the Board vio-\nlated an employee’s due process rights when it sustained\na removal based on alleged misconduct that appeared\nnowhere in the notice of proposed removal. 318 F.3d at\n1315. “By accusing [the employee] of specific misdeeds\nthat were not within the scope of the Notice of Proposed\nRemoval, the Board . . . exceeded the scope of its review of\nthe agency’s decision.” Id.\n Thus, as a general matter, when an agency disciplines\nan employee, it may do so based only on the charges in\nthe notice of proposed action, and the Board, in turn, can\naffirm the disciplinary action based only on the charges\nactually noticed and relied on by the agency. The gov-\nernment does not dispute these general principles estab-\nlished by a long line of this court’s cases.\n II\n These due process requirements were violated here.\nDo was issued a notice of proposal to demote and suspend.\nThe notice alleged a single charge of “negligence of duty”\nand stated as follows:\n\f8 DO v. HUD\n\n\n\n\n Charge: Negligence of Duty\n Specification #1: In 2006 you were\n made aware by security personnel at the\n Bureau of the Fiscal Service (formerly the\n Bureau of the Public Debt) that during a\n pre-employment background investigation\n for Uyen Asuncion attendance at the Uni-\n versity of Colorado – Boulder was con-\n firmed but there was no record that Ms.\n Asuncion had received her Bachelor of\n Science degree which was required for the\n position for which she was being consid-\n ered. Ms. Asuncion also admitted to you\n that she did not have her degree; regard-\n less she was hired for the position.\n Specification #2: In 2009, you created a\n GS-14 auditor position within your divi-\n sion for Ms. Asuncion knowing that she\n did not possess a Bachelor of Science de-\n gree as required for auditor positions with\n HUD OIG.\nJ.A. 367 (emphases added). The notice further character-\nized the offense as “serious” because “[t]he fact Ms. Asun-\ncion did not have a [college] degree calls into question all\nof the work Ms. Asuncion has completed on behalf of HUD\nOIG.” J.A. 368.\n The Office of Personnel Management (“OPM”) sets\nforth minimum qualification requirements for positions in\nthe federal competitive service. Contrary to the notice, a\ncollege degree was not required for these positions in 2006\nor 2009. Under the OPM standard, there were two ways\nan individual could qualify for a GS-11 or GS-14 auditor\nposition: (1) by having a degree in accounting or related\nfield, or (2) by having a specified combination of education\nand experience.\n\fDO v. HUD 9\n\n\n\n A. THE AGENCY PROCEEDINGS\n As HUD contends, Do argued in her responses to the\nagency that a degree was not required for the auditor\npositions; that there was an alternative way to qualify;\nand that she believed Asuncion qualified for the positions\nunder this alternative. But Do was not on notice that she\nneeded to defend against a charge of negligence for alleg-\nedly failing to investigate whether Asuncion was qualified\nbased on a combination of education and experience. The\ncentral issue was not Do’s belief but whether her actions\nwere negligent.\n Do did not have a meaningful opportunity to address\nthe unstated charge of negligence of duty in this respect\n(i.e., whether Do should have taken other actions to verify\ncompliance under the alternative standard). The deciding\nofficial appeared not to have addressed the issue of negli-\ngence in failing to investigate the alternative qualifica-\ntions. In her formal decision, the deciding official\nappeared to instead address Do’s contention that she\nbelieved that Asuncion was qualified under the education\nand experience standard, ultimately concluding that\ndemotion and suspension were warranted because Do\nbelieved a degree was required and knew that Asuncion\ndid not have a degree. The deciding official stated:\n In conclusion, the information in the case file\n shows you repeatedly emphasized Ms. Asuncion’s\n need to obtain a college degree, beginning with\n your obtaining a promise from Ms. Asuncion\n around the time of her hire to complete that de-\n gree. Your emphasis on obtaining the degree\n demonstrates that you believed, on some level, Ms.\n Asuncion needed to possess a college degree to\n qualify for the auditor position, yet you allowed\n her to continue working in that position and even\n promoted her to a higher level auditor position\n knowing she did not possess the degree. You\n\f10 DO v. HUD\n\n\n\n\n demonstrated poor judgment, which continued\n over a number of years, with regard to the hiring\n and subsequent promotion of Ms. Asuncion. Your\n actions directly led to Ms. Asuncion working and\n supervising audits for nearly a decade without\n possessing a college degree.\nJ.A. 337 (emphases added).\n B. THE BOARD PROCEEDINGS\n Although agreeing that a college degree was not re-\nquired, the Board sustained the charge on a different\nground than the ground relied on by the agency. The\nBoard found that Asuncion did not meet OPM’s require-\nments in 2006 or 2009 because she did not possess the\nrequisite combination of education and experience that\nwas an alternative basis for qualifying. The education\nand experience standard at issue here required that the\napplicant have (1) “at least 4 years of experience in ac-\ncounting or an equivalent combination of accounting\nexperience, college-level education, and training that\nprovided professional accounting knowledge” and (2)\n“[t]wenty-four semester hours in accounting or auditing\ncourses of appropriate type and quality[,] [which] can\ninclude up to 6 hours of business law.” J.A. 421. With\nrespect to the 2006 hiring, the Board found that Asuncion\ndid not have at least four years of accounting experience\nor the equivalent when she transferred from the DOJ to\nHUD OIG. 1 Even if this requirement were met, the\n\n\n 1 Do had argued that Asuncion worked as a student\ntrainee at HUD OIG’s Denver, Colorado, office from\nMarch 2003 through January 2005, as an auditor at HUD\nOIG’s Baltimore, Maryland, office from January 2005\nthrough April 2006, and as an auditor at the DOJ from\nApril 2006 until March 2007. Do argued that Asuncion’s\n\fDO v. HUD 11\n\n\n\nBoard further found that Asuncion did not have twenty-\nfour semester hours in accounting because her transcript\nreflected only twenty-one semester hours in accounting. 2\n With respect to the 2009 promotion, the Board simi-\nlarly rejected Do’s arguments and found that Asuncion\ndid not meet OPM’s requirements in 2009 because, “while\nshe had more years of experience at the time of her pro-\nmotion, she still lacked a college degree and it was not\nestablished that she completed 24 hours of coursework as\nrequired by OPM’s qualifications.” J.A. 12. Both for 2006\nand 2009, the Board concluded that Do was guilty of\n“negligence of duty” because she did not determine that\nAsuncion met the required qualifications, and she could\nnot rely on human resources or her supervisors without\nmaking an independent investigation.\n The Board’s decision is inconsistent with the agency’s\ncharge and supporting specifications. On appeal, the\nBoard was required to limit its review to the grounds\nspecified in the notice and relied on by the deciding offi-\ncial, namely, that a degree was required and that Do\n\n\n\nalmost two years of experience working as a student\ntrainee and her nearly two years of experience working as\nan auditor met the “at least 4 years of experience in\naccounting or an equivalent combination of accounting\nexperience, college-level education, and training.”\n 2 Do had argued that a course titled “Accounting\nand Financial Analysis,” which was worth four credits,\nwas an accounting course on its face, and thus Asuncion\nhad twenty-four semester hours in accounting courses.\nThe Board acknowledged that, “[i]f the course was appli-\ncable, Ms. Asuncion would have had 25 hours of applica-\nble coursework.” J.A. 7.\n\f12 DO v. HUD\n\n\n\n\nhired and later promoted Asuncion, knowing that Asun-\ncion did not have a degree. See O’Keefe, 318 F.3d at 1315;\nLachance, 147 F.3d at 1371–72 (Where an agency “use[s]\ngeneral charge labels such as ‘unacceptable and inappro-\npriate behavior’ or ‘misconduct,’” it “would be inconsistent\nwith due process” to allow “an agency . . . to prove any\nconduct generally relating to the conduct described in the\nspecification, as long as that conduct could be character-\nized as ‘inappropriate’ or ‘misconduct.’”). But the Board\nsustained the disciplinary action because it concluded\nthat Do negligently failed to investigate whether Asun-\ncion met OPM’s alternative requirements. The alterna-\ntive theory relied on by the Board appears nowhere in the\nnotice or in the deciding official’s decision, and HUD\nconceded as much at oral argument.\n Of course, the magnitude of the procedural error is\nrelevant to determining whether there has been a due\nprocess violation. As we have stated, not every “proce-\ndural defect [is] so substantial and so likely to cause\nprejudice that it undermines the due process guarantee\nand entitles the claimant to an entirely new administra-\ntive proceeding.” Stone, 179 F.3d at 1376–77. 3 But this is\n\n\n 3 The Mathews v. Eldridge, 424 U.S. 319 (1976),\nbalancing test takes account of the substantiality of the\ndeprivation in determining whether an individual has\nbeen afforded procedural due process. 424 U.S. at 335,\n340–42; Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230,\n242 (1988) (examining the “importance of the private\ninterest and the harm to this interest occasioned by\n[agency] delay” in determining “how long a delay is justi-\nfied in affording a post-suspension hearing and decision”);\nLoudermill, 470 U.S. at 546–47 (holding that a 9-month\ndelay in final decision was not “unconstitutionally lengthy\nper se”).\n\fDO v. HUD 13\n\n\n\nnot a case where the departures are minor. 4 Rather, Do\ndid not have the opportunity to meaningfully address\nnegligence at the agency under the alternative standard\nfor qualifying, and the Board’s departure from the agen-\ncy’s decision was significant. Procedural due process\nguarantees are not met when the agency fails to give\nnotice of and fails to consider the proper standard, and\nthe Board, as it did here, departs significantly from the\ngrounds relied on by the agency and substitutes its own\nalternative theory.\n III\n HUD argues that, if there was a due process violation,\nit was at most harmless error. Even if we applied a\nharmless error test here, we are convinced that the error\n\n\n\n 4 See, e.g., Pope, 114 F.3d at 1148–49 (rejecting pe-\ntitioner’s argument “that his due process rights were\nviolated because the charges lacked specificity regarding\ndates, times, and places” because “[t]he notice given to\nMr. Pope [wa]s quite detailed and clearly informed him of\nthe charges as well as the evidence the Postal Service had\nin support”); Brook, 999 F.2d at 526–27 (rejecting due\nprocess challenge where the notice did not explicitly state\nthe nexus between the employee’s misconduct and the\nproposed disciplinary action, but “the notice fully in-\nformed Mr. Corrado of the grounds for the proposed\nremoval [and] . . . clearly identified the details of Mr.\nCorrado’s arrest and conviction”); Hayes v. Dep’t of the\nNavy, 727 F.2d 1535, 1538 (Fed. Cir. 1984) (rejecting\npetitioner’s due process challenge because, even though\n“[t]he specific date of the offense charged appear[ed] to\nhave been a little off target,” the notice said “on or about\n22 January 1982” and “it [wa]s clear to us that petitioner\nknew what charge he had to defend”).\n\f14 DO v. HUD\n\n\n\n\nis harmful. We fail to see how the Board’s error could\nhave been harmless. There is certainly no showing that\nthe Board would have reached the same result if it had\nconsidered only the agency’s original charge since the\nBoard agreed that a college degree was not required.\nWith respect to the agency, the government argues that\nthe deciding official testified that she would have reached\nthe same result absent the error. HUD, however, has not\nproven by a preponderance of evidence that the deciding\nofficial would have reached the same result if Do had been\ncharged with negligence in determining Asuncion’s quali-\nfications under the correct standard. The deciding offi-\ncial’s testimony that she believes she would have arrived\nat the same conclusion and imposed the same penalty\nunder proper procedures is not sufficient to show that the\ndue process violation in this case was harmless because\nthe test for harmlessness is an objective one, not a subjec-\ntive one.\n In Ryder v. United States, the government argued\nthat the decision should be affirmed despite the procedur-\nal defect in the employee’s firing because he would have\nbeen removed on the merits in the absence of the proce-\ndural defect. 585 F.2d 482, 487–88 (Ct. Cl. 1978), super-\nseded by statute as recognized in Adams v. Dep’t of\nTransp., F.A.A., 735 F.2d 488, 496 (Fed. Cir. 1984) (Nies,\nJ., concurring). The Court of Claims rejected this reason-\ning, stating:\n [W]here a serious procedural curtailment mars an\n adverse personnel action which deprives the em-\n ployee of pay, the court has regularly taken the po-\n sition that the defect divests the removal (or\n demotion) of legality . . . . In that situation, the\n merits of the adverse action are wholly disregard-\n ed.\nId. at 487–488. Similarly, in Sullivan, we rejected the\ngovernment’s argument that the due process violation\n\fDO v. HUD 15\n\n\n\n“was harmless error” and “made absolutely no difference\nin the case because . . . the petitioner would have been\nremoved in any event because of the evidence against\nhim” and held that the violation there “tainted the inves-\ntigation, voided the entire proceeding, and rendered [the]\nremoval decision a nullity.” 720 F.2d at 1273–74 (citing\nRyder, 585 F.2d 482). We also rejected as irrelevant a\nsimilar argument in Stone, where the deciding official\nstated that he would have concluded that the employee\nshould be removed “whether or not” the due process\nviolation occurred. 179 F.3d at 1373.\n Thus, there is no basis to conclude that the errors\nhere were harmless.\n CONCLUSION\n Because the Board violated Do’s due process rights in\nsustaining her demotion and suspension, we reverse and\nremand.\n REVERSED AND REMANDED\n COSTS\n Costs to the petitioner.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4358468/", "author_raw": "DYK, Circuit Judge."}]} | DYK | REYNA | CHEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581215/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: Hanh DO, Petitioner v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n HANH DO,\n Petitioner\n\n v.\n\n DEPARTMENT OF HOUSING AND URBAN\n DEVELOPMENT,\n Respondent\n ______________________\n\n 2018-1147\n ______________________\n\n Petition for review of the Merit Systems Protection\nBoard in No. DC-0752-17-0149-I-1.\n ______________________\n\n Decided: January 14, 2019\n ______________________\n\n TAMARA LOUISE MILLER, MillerMasciola, Washington,\nDC, argued for petitioner.\n\n SONIA W. MURPHY, Commercial Litigation Branch,\nCivil Division, United States Department of Justice,\nWashington, DC, argued for respondent. Also represent-\ned by RETA EMMA BEZAK, REGINALD THOMAS B LADES, JR .,\nROBERT EDWARD KIRSCHMAN, JR., JOSEPH H. HUNT.\n ______________________\n\n Before DYK, REYNA, and CHEN, Circuit Judges.\n\f2 DO v. HUD\n\n\n\n\nDYK, Circuit Judge.\n Hanh Do petitions for review of a decision of the Merit\nSystems Protection Board (“Board”). The Board sustained\nthe Department of Housing and Urban Development’s\n(“HUD’s” or “agency’s”) action demoting and suspending\nDo. In its notice of proposed action, HUD charged Do\nwith “negligence of duty” for hiring and later promoting\nan employee when Do knew that the employee did not\nhave a college degree, which the agency viewed as a\nrequirement. On appeal, the Board agreed with Do that a\ncollege degree was not required and that the employee\ncould alternatively qualify for the positions by having a\ncombination of education and experience. The Board,\nnonetheless, sustained the charge, concluding that Do\nwas negligent because she failed to ensure that the em-\nployee met the alternative qualification requirements.\n We hold that Do’s due process rights were violated be-\ncause the Board exceeded the scope of the agency’s\ncharge, relying on a new ground to sustain the discipline.\nWe reverse and remand.\n BACKGROUND\n Do has been a government employee since 1990.\nFrom 1990 to 1998, Do worked as an auditor for the\nInternal Revenue Service. In 1998, HUD Office of Inspec-\ntor General (“OIG”) hired Do as auditor in the Infor-\nmation Systems Audit Division. She was promoted to\nAssistant Director of that division and then to Director in\n2003 and 2005, respectively. She held the position of\nDirector until she was demoted on November 27, 2016.\n In November 2006, Do was responsible for selecting\ncandidates for auditor positions in her division. Uyen\nAsuncion applied for a GS-11 auditor position in Do’s\ndivision. At the time she applied, Asuncion was working\nas a GS-11 auditor at the Department of Justice (“DOJ”).\n\fDO v. HUD 3\n\n\n\nBoth on her resume and Questionnaire for Public Trust\nPositions, Asuncion claimed she had a college degree in\naccounting.\n In December 2006, a pre-employment background in-\nvestigation revealed that Asuncion did not have a degree\nin accounting. Do was informed of this discrepancy and\nquestioned Asuncion about it. It turned out that Asun-\ncion was never awarded her degree because, even though\nshe had completed the required coursework, her grade\npoint average was not high enough for the university to\nconfer the degree. Apparently, Asuncion needed to take\none additional course to raise her grade point average to\nmeet the minimum and obtain the degree.\n Asuncion told Do that she had made an honest mis-\ntake and believed that she had completed the require-\nments for her degree when she applied. Asuncion\npromised to complete an additional college course to\nsecure her degree. After conferring with her supervisor,\nDo approved Asuncion’s selection for the auditor position.\nAt the same time, Do urged Asuncion to complete her\ndegree.\n Over the next few years, Asuncion was promoted to a\nGS-12 auditor position and then to a GS-13 auditor posi-\ntion. In 2009, Do posted two GS-14 auditor positions (one\nof which was created with Asuncion in mind). Asuncion\napplied for one of the positions, and human resources\nflagged Asuncion “as a qualified candidate” and included\nher on a list of “eligible candidates” for the position. J.A.\n3. Do selected Asuncion for one of the positions. At that\ntime, Do knew that Asuncion still did not have an ac-\ncounting degree.\n In 2013 or 2014, Do consulted with her supervisor re-\ngarding Asuncion’s lack of degree. After consulting with\nhuman resources, Do’s supervisor advised Do that Asun-\n\f4 DO v. HUD\n\n\n\n\ncion could continue as an auditor but must obtain her\ndegree. Asuncion resigned in March 2016.\n On July 20, 2016, HUD issued a notice of proposal to\ndemote Do from the position of Director (GS-15) to Non-\nsupervisory Senior Auditor (GS-14) and to suspend her for\nfourteen days for negligence of duty. The notice alleged\nthat Do was negligent in hiring Asuncion in 2006 and\npromoting her in 2009 because a college degree was\n“required for the position[s],” and “Asuncion . . . admitted\nto [Do] that she did not have her degree.” J.A. 367. Do\nresponded both in writing and orally to the agency. On\nNovember 9, 2016, after considering Do’s submitted\nreplies, the HUD deciding official issued a formal written\ndecision, concluding that “demotion and suspension [we]re\nwarranted and serve to promote the efficiency of the\nservice.” J.A. 355. Do was demoted and suspended\neffective November 27, 2016.\n Do timely appealed to the Board. After a hearing, the\nadministrative judge sustained the agency’s action. Do\ndid not appeal to the full Board (which then lacked a\nquorum), and the administrative judge’s decision became\nthe final decision of the Board.\n Do petitioned for review in our court. We have juris-\ndiction under 5 U.S.C. § 7703(b)(1) and 28 U.S.C.\n§ 1295(a)(9). In reviewing the Board’s decision, we must\naffirm the decision unless it is “(1) arbitrary, capricious,\nan abuse of discretion, or otherwise not in accordance\nwith law; (2) obtained without procedures required by\nlaw, rule, or regulation having been followed; or\n(3) unsupported by substantial evidence.” 5 U.S.C.\n§ 7703(c); Ward v. U.S. Postal Serv., 634 F.3d 1274, 1278\n(Fed. Cir. 2011). “We ‘must reverse a decision of the\nBoard if it . . . is not in accordance with the requirements\nof the Due Process Clause of the Fifth Amendment.’”\nWard, 634 F.3d at 1278 (alteration in original) (quoting\n\fDO v. HUD 5\n\n\n\nBlank v. Dep’t of the Army, 247 F.3d 1225, 1228 (Fed. Cir.\n2001)).\n DISCUSSION\n I\n In general, public employees possess a constitutional-\nly protected property right in their employment and are\nentitled to pre-deprivation due process. See Cleveland Bd.\nof Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Stone v.\nFed. Deposit Ins. Corp., 179 F.3d 1368, 1374–76 (Fed. Cir.\n1999) (“An employee is entitled to a certain amount of due\nprocess rights at each stage and, when these rights are\nundermined, the employee is entitled to relief regardless\nof the stage of the proceedings.”). “The essential require-\nments of due process . . . are notice and an opportunity to\nbe heard.” Loudermill, 470 U.S. at 546. As the Supreme\nCourt stated in Loudermill, due process “requires some\nkind of hearing prior to the discharge of an employee.” Id.\nat 542 (quotation marks and citations omitted). Pre-\ntermination due process is important because “[e]ven\nwhere the facts are clear, the appropriateness or necessity\nof the discharge may not be; in such cases, the only mean-\ningful opportunity to invoke the discretion of the deci-\nsionmaker is likely to be before the termination takes\neffect.” Id. at 543; see also Young v. Dep’t of Housing &\nUrban Devel., 706 F.3d 1372, 1377 (Fed. Cir. 2013) (“[A]n\nemployee is entitled to notice of the charges against him,\nan explanation of the employer’s evidence, and an oppor-\ntunity to present his side of the story before termination.”\n(citing Stone, 179 F.3d at 1376)); see also 2 Richard J.\nPierce, Jr., Admin. Law Treatise § 9.5, p. 823 (5th ed.\n2010) (“Notice is one of the most important procedural\nsafeguards.”).\n To be sure, not every disciplinary action requires pre-\ndeprivation notice and opportunity to be heard. For\nexample, in Gilbert v. Homar, 520 U.S. 924, 933 (1997),\n\f6 DO v. HUD\n\n\n\n\nthe Supreme Court held that a pre-disciplinary hearing\nwas not required where the disciplinary action—\nsuspension—was only temporary, and “the State ha[d] a\nsignificant interest in immediately suspending” an em-\nployee who had been arrested and charged with a felony.\n Although Do’s case does not involve a termination, the\ngovernment does not argue that demotions should be\ntreated differently than terminations or that there was a\nneed to take action quickly without advance notice and\nopportunity to be heard. In the past, this court has as-\nsumed in demotion cases that there is a right to pre-\ndemotion notice and an opportunity to be heard. See, e.g.,\nNguyen v. Dep’t of Homeland Sec., 737 F.3d 711, 718 (Fed.\nCir. 2013); Pope v. U.S. Postal Serv., 114 F.3d 1144, 1148–\n49 (Fed. Cir. 1997); see also Ciambriello v. Cty. of Nassau,\n292 F.3d 307, 321 (2d Cir. 2002) (holding “that the process\ndue [to the employee] was notice of the charges against\nhim and the opportunity to be heard before demotion”).\n It is well-established that, in the civil service system,\n“[o]nly the charge and specifications set out in the Notice\nmay be used to justify punishment because due process\nrequires that an employee be given notice of the charges\nagainst him in sufficient detail to allow the employee to\nmake an informed reply.” O’Keefe v. U.S. Postal Serv.,\n318 F.3d 1310, 1315 (Fed. Cir. 2002); see Lachance v.\nMerit Sys. Prot. Bd., 147 F.3d 1367, 1371–72 (Fed. Cir.\n1998); Brook v. Corrado, 999 F.2d 523, 526–27 (Fed. Cir.\n1993). When an agency relies on a charge not included in\nthe notice, due process is violated because the notice does\nnot fully inform the employee of the grounds for the\nproposed removal and deprives the employee of an oppor-\ntunity to make an informed response before the agency\ntakes disciplinary action. See Brook, 999 F.2d at 527;\nPope, 114 F.3d at 1148–49.\n\fDO v. HUD 7\n\n\n\n Likewise, the Board is limited to reviewing the\ngrounds invoked by the agency and may not “substitute\nwhat it considers to be a better basis for removal than\nwhat was identified by the agency.” O’Keefe, 318 F.3d at\n1315 (citations omitted); see James v. Dale, 355 F.3d 1375,\n1378–79 (Fed. Cir. 2004); Licausi v. Office of Pers. Mgmt.,\n350 F.3d 1359, 1363 n.1 (Fed. Cir. 2003); see also Horne v.\nMerit Sys. Prot. Bd., 684 F.2d 155, 157–58 (D.C. Cir.\n1982) (cited with approval in Licausi, 350 F.3d at 1363).\n“Simply put, the Board should not be in the business of\naffirming administrative decisions based upon how an\nagency might have acted if it had followed proper proce-\ndures.” Horne, 684 F.2d at 157–58.\n For example, in O’Keefe, we held that the Board vio-\nlated an employee’s due process rights when it sustained\na removal based on alleged misconduct that appeared\nnowhere in the notice of proposed removal. 318 F.3d at\n1315. “By accusing [the employee] of specific misdeeds\nthat were not within the scope of the Notice of Proposed\nRemoval, the Board . . . exceeded the scope of its review of\nthe agency’s decision.” Id.\n Thus, as a general matter, when an agency disciplines\nan employee, it may do so based only on the charges in\nthe notice of proposed action, and the Board, in turn, can\naffirm the disciplinary action based only on the charges\nactually noticed and relied on by the agency. The gov-\nernment does not dispute these general principles estab-\nlished by a long line of this court’s cases.\n II\n These due process requirements were violated here.\nDo was issued a notice of proposal to demote and suspend.\nThe notice alleged a single charge of “negligence of duty”\nand stated as follows:\n\f8 DO v. HUD\n\n\n\n\n Charge: Negligence of Duty\n Specification #1: In 2006 you were\n made aware by security personnel at the\n Bureau of the Fiscal Service (formerly the\n Bureau of the Public Debt) that during a\n pre-employment background investigation\n for Uyen Asuncion attendance at the Uni-\n versity of Colorado – Boulder was con-\n firmed but there was no record that Ms.\n Asuncion had received her Bachelor of\n Science degree which was required for the\n position for which she was being consid-\n ered. Ms. Asuncion also admitted to you\n that she did not have her degree; regard-\n less she was hired for the position.\n Specification #2: In 2009, you created a\n GS-14 auditor position within your divi-\n sion for Ms. Asuncion knowing that she\n did not possess a Bachelor of Science de-\n gree as required for auditor positions with\n HUD OIG.\nJ.A. 367 (emphases added). The notice further character-\nized the offense as “serious” because “[t]he fact Ms. Asun-\ncion did not have a [college] degree calls into question all\nof the work Ms. Asuncion has completed on behalf of HUD\nOIG.” J.A. 368.\n The Office of Personnel Management (“OPM”) sets\nforth minimum qualification requirements for positions in\nthe federal competitive service. Contrary to the notice, a\ncollege degree was not required for these positions in 2006\nor 2009. Under the OPM standard, there were two ways\nan individual could qualify for a GS-11 or GS-14 auditor\nposition: (1) by having a degree in accounting or related\nfield, or (2) by having a specified combination of education\nand experience.\n\fDO v. HUD 9\n\n\n\n A. THE AGENCY PROCEEDINGS\n As HUD contends, Do argued in her responses to the\nagency that a degree was not required for the auditor\npositions; that there was an alternative way to qualify;\nand that she believed Asuncion qualified for the positions\nunder this alternative. But Do was not on notice that she\nneeded to defend against a charge of negligence for alleg-\nedly failing to investigate whether Asuncion was qualified\nbased on a combination of education and experience. The\ncentral issue was not Do’s belief but whether her actions\nwere negligent.\n Do did not have a meaningful opportunity to address\nthe unstated charge of negligence of duty in this respect\n(i.e., whether Do should have taken other actions to verify\ncompliance under the alternative standard). The deciding\nofficial appeared not to have addressed the issue of negli-\ngence in failing to investigate the alternative qualifica-\ntions. In her formal decision, the deciding official\nappeared to instead address Do’s contention that she\nbelieved that Asuncion was qualified under the education\nand experience standard, ultimately concluding that\ndemotion and suspension were warranted because Do\nbelieved a degree was required and knew that Asuncion\ndid not have a degree. The deciding official stated:\n In conclusion, the information in the case file\n shows you repeatedly emphasized Ms. Asuncion’s\n need to obtain a college degree, beginning with\n your obtaining a promise from Ms. Asuncion\n around the time of her hire to complete that de-\n gree. Your emphasis on obtaining the degree\n demonstrates that you believed, on some level, Ms.\n Asuncion needed to possess a college degree to\n qualify for the auditor position, yet you allowed\n her to continue working in that position and even\n promoted her to a higher level auditor position\n knowing she did not possess the degree. You\n\f10 DO v. HUD\n\n\n\n\n demonstrated poor judgment, which continued\n over a number of years, with regard to the hiring\n and subsequent promotion of Ms. Asuncion. Your\n actions directly led to Ms. Asuncion working and\n supervising audits for nearly a decade without\n possessing a college degree.\nJ.A. 337 (emphases added).\n B. THE BOARD PROCEEDINGS\n Although agreeing that a college degree was not re-\nquired, the Board sustained the charge on a different\nground than the ground relied on by the agency. The\nBoard found that Asuncion did not meet OPM’s require-\nments in 2006 or 2009 because she did not possess the\nrequisite combination of education and experience that\nwas an alternative basis for qualifying. The education\nand experience standard at issue here required that the\napplicant have (1) “at least 4 years of experience in ac-\ncounting or an equivalent combination of accounting\nexperience, college-level education, and training that\nprovided professional accounting knowledge” and (2)\n“[t]wenty-four semester hours in accounting or auditing\ncourses of appropriate type and quality[,] [which] can\ninclude up to 6 hours of business law.” J.A. 421. With\nrespect to the 2006 hiring, the Board found that Asuncion\ndid not have at least four years of accounting experience\nor the equivalent when she transferred from the DOJ to\nHUD OIG. 1 Even if this requirement were met, the\n\n\n 1 Do had argued that Asuncion worked as a student\ntrainee at HUD OIG’s Denver, Colorado, office from\nMarch 2003 through January 2005, as an auditor at HUD\nOIG’s Baltimore, Maryland, office from January 2005\nthrough April 2006, and as an auditor at the DOJ from\nApril 2006 until March 2007. Do argued that Asuncion’s\n\fDO v. HUD 11\n\n\n\nBoard further found that Asuncion did not have twenty-\nfour semester hours in accounting because her transcript\nreflected only twenty-one semester hours in accounting. 2\n With respect to the 2009 promotion, the Board simi-\nlarly rejected Do’s arguments and found that Asuncion\ndid not meet OPM’s requirements in 2009 because, “while\nshe had more years of experience at the time of her pro-\nmotion, she still lacked a college degree and it was not\nestablished that she completed 24 hours of coursework as\nrequired by OPM’s qualifications.” J.A. 12. Both for 2006\nand 2009, the Board concluded that Do was guilty of\n“negligence of duty” because she did not determine that\nAsuncion met the required qualifications, and she could\nnot rely on human resources or her supervisors without\nmaking an independent investigation.\n The Board’s decision is inconsistent with the agency’s\ncharge and supporting specifications. On appeal, the\nBoard was required to limit its review to the grounds\nspecified in the notice and relied on by the deciding offi-\ncial, namely, that a degree was required and that Do\n\n\n\nalmost two years of experience working as a student\ntrainee and her nearly two years of experience working as\nan auditor met the “at least 4 years of experience in\naccounting or an equivalent combination of accounting\nexperience, college-level education, and training.”\n 2 Do had argued that a course titled “Accounting\nand Financial Analysis,” which was worth four credits,\nwas an accounting course on its face, and thus Asuncion\nhad twenty-four semester hours in accounting courses.\nThe Board acknowledged that, “[i]f the course was appli-\ncable, Ms. Asuncion would have had 25 hours of applica-\nble coursework.” J.A. 7.\n\f12 DO v. HUD\n\n\n\n\nhired and later promoted Asuncion, knowing that Asun-\ncion did not have a degree. See O’Keefe, 318 F.3d at 1315;\nLachance, 147 F.3d at 1371–72 (Where an agency “use[s]\ngeneral charge labels such as ‘unacceptable and inappro-\npriate behavior’ or ‘misconduct,’” it “would be inconsistent\nwith due process” to allow “an agency . . . to prove any\nconduct generally relating to the conduct described in the\nspecification, as long as that conduct could be character-\nized as ‘inappropriate’ or ‘misconduct.’”). But the Board\nsustained the disciplinary action because it concluded\nthat Do negligently failed to investigate whether Asun-\ncion met OPM’s alternative requirements. The alterna-\ntive theory relied on by the Board appears nowhere in the\nnotice or in the deciding official’s decision, and HUD\nconceded as much at oral argument.\n Of course, the magnitude of the procedural error is\nrelevant to determining whether there has been a due\nprocess violation. As we have stated, not every “proce-\ndural defect [is] so substantial and so likely to cause\nprejudice that it undermines the due process guarantee\nand entitles the claimant to an entirely new administra-\ntive proceeding.” Stone, 179 F.3d at 1376–77. 3 But this is\n\n\n 3 The Mathews v. Eldridge, 424 U.S. 319 (1976),\nbalancing test takes account of the substantiality of the\ndeprivation in determining whether an individual has\nbeen afforded procedural due process. 424 U.S. at 335,\n340–42; Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230,\n242 (1988) (examining the “importance of the private\ninterest and the harm to this interest occasioned by\n[agency] delay” in determining “how long a delay is justi-\nfied in affording a post-suspension hearing and decision”);\nLoudermill, 470 U.S. at 546–47 (holding that a 9-month\ndelay in final decision was not “unconstitutionally lengthy\nper se”).\n\fDO v. HUD 13\n\n\n\nnot a case where the departures are minor. 4 Rather, Do\ndid not have the opportunity to meaningfully address\nnegligence at the agency under the alternative standard\nfor qualifying, and the Board’s departure from the agen-\ncy’s decision was significant. Procedural due process\nguarantees are not met when the agency fails to give\nnotice of and fails to consider the proper standard, and\nthe Board, as it did here, departs significantly from the\ngrounds relied on by the agency and substitutes its own\nalternative theory.\n III\n HUD argues that, if there was a due process violation,\nit was at most harmless error. Even if we applied a\nharmless error test here, we are convinced that the error\n\n\n\n 4 See, e.g., Pope, 114 F.3d at 1148–49 (rejecting pe-\ntitioner’s argument “that his due process rights were\nviolated because the charges lacked specificity regarding\ndates, times, and places” because “[t]he notice given to\nMr. Pope [wa]s quite detailed and clearly informed him of\nthe charges as well as the evidence the Postal Service had\nin support”); Brook, 999 F.2d at 526–27 (rejecting due\nprocess challenge where the notice did not explicitly state\nthe nexus between the employee’s misconduct and the\nproposed disciplinary action, but “the notice fully in-\nformed Mr. Corrado of the grounds for the proposed\nremoval [and] . . . clearly identified the details of Mr.\nCorrado’s arrest and conviction”); Hayes v. Dep’t of the\nNavy, 727 F.2d 1535, 1538 (Fed. Cir. 1984) (rejecting\npetitioner’s due process challenge because, even though\n“[t]he specific date of the offense charged appear[ed] to\nhave been a little off target,” the notice said “on or about\n22 January 1982” and “it [wa]s clear to us that petitioner\nknew what charge he had to defend”).\n\f14 DO v. HUD\n\n\n\n\nis harmful. We fail to see how the Board’s error could\nhave been harmless. There is certainly no showing that\nthe Board would have reached the same result if it had\nconsidered only the agency’s original charge since the\nBoard agreed that a college degree was not required.\nWith respect to the agency, the government argues that\nthe deciding official testified that she would have reached\nthe same result absent the error. HUD, however, has not\nproven by a preponderance of evidence that the deciding\nofficial would have reached the same result if Do had been\ncharged with negligence in determining Asuncion’s quali-\nfications under the correct standard. The deciding offi-\ncial’s testimony that she believes she would have arrived\nat the same conclusion and imposed the same penalty\nunder proper procedures is not sufficient to show that the\ndue process violation in this case was harmless because\nthe test for harmlessness is an objective one, not a subjec-\ntive one.\n In Ryder v. United States, the government argued\nthat the decision should be affirmed despite the procedur-\nal defect in the employee’s firing because he would have\nbeen removed on the merits in the absence of the proce-\ndural defect. 585 F.2d 482, 487–88 (Ct. Cl. 1978), super-\nseded by statute as recognized in Adams v. Dep’t of\nTransp., F.A.A., 735 F.2d 488, 496 (Fed. Cir. 1984) (Nies,\nJ., concurring). The Court of Claims rejected this reason-\ning, stating:\n [W]here a serious procedural curtailment mars an\n adverse personnel action which deprives the em-\n ployee of pay, the court has regularly taken the po-\n sition that the defect divests the removal (or\n demotion) of legality . . . . In that situation, the\n merits of the adverse action are wholly disregard-\n ed.\nId. at 487–488. Similarly, in Sullivan, we rejected the\ngovernment’s argument that the due process violation\n\fDO v. HUD 15\n\n\n\n“was harmless error” and “made absolutely no difference\nin the case because . . . the petitioner would have been\nremoved in any event because of the evidence against\nhim” and held that the violation there “tainted the inves-\ntigation, voided the entire proceeding, and rendered [the]\nremoval decision a nullity.” 720 F.2d at 1273–74 (citing\nRyder, 585 F.2d 482). We also rejected as irrelevant a\nsimilar argument in Stone, where the deciding official\nstated that he would have concluded that the employee\nshould be removed “whether or not” the due process\nviolation occurred. 179 F.3d at 1373.\n Thus, there is no basis to conclude that the errors\nhere were harmless.\n CONCLUSION\n Because the Board violated Do’s due process rights in\nsustaining her demotion and suspension, we reverse and\nremand.\n REVERSED AND REMANDED\n COSTS\n Costs to the petitioner.\n[END_CASE]",
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4,583,378 | PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff-Cross-Appellant v. OFFICE DEPOT INC., J.C. Penney Company, Inc., QVC Inc., Sears Holdings Corporation, Limited Brands Inc., Gap, Inc., Williams-Sonoma, Inc., Costco Wholesale Corporation, Nordstrom.com LLC, Nordstrom.com Inc., Nordstrom Inc., Defendants Adobe Inc., Defendant-Appellant | Princeton Digital Image Corp. v. Office Depot Inc. | 2019-01-22 | 2017-2597; 2017-2598; 2017-2600; 2017-2602; 2017-2605; 2017-2606; 2017-2609; 2017-2611; 2017-2612; 2017-2627; 2017-2628; 2017-2629; 2017-2630; 2017-2631; 2017-2632; 2017-2633; 2017-2634; 2018-1006 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Taranto, Stoll", "parties": "", "opinions": [{"author": "DYK, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n PRINCETON DIGITAL IMAGE CORPORATION,\n Plaintiff-Cross-Appellant\n\n v.\n\n OFFICE DEPOT INC., J.C. PENNEY COMPANY,\n INC., QVC INC., SEARS HOLDINGS\n CORPORATION, LIMITED BRANDS INC., GAP,\n INC., WILLIAMS-SONOMA, INC., COSTCO\nWHOLESALE CORPORATION, NORDSTROM.COM\nLLC, NORDSTROM.COM INC., NORDSTROM INC.,\n Defendants\n\n ADOBE INC.,\n Defendant-Appellant\n ______________________\n\n2017-2597, 2017-2598, 2017-2600, 2017-2602, 2017-2605,\n2017-2606, 2017-2609, 2017-2611, 2017-2612, 2017-2627,\n2017-2628, 2017-2629, 2017-2630, 2017-2631, 2017-2632,\n 2017-2633, 2017-2634, 2018-1006\n ______________________\n\n Appeals from the United States District Court for the\nDistrict of Delaware in Nos. 1:13-cv-00239-LPS, 1:13-cv-\n00287-LPS, 1:13-cv-00288-LPS, 1:13-cv-00289-LPS, 1:13-\ncv-00326-LPS, 1:13-cv-00330-LPS, 1:13-cv-00331-LPS,\n1:13-cv-00404-LPS, 1:13-cv-00408-LPS, Chief Judge\nLeonard P. Stark.\n\f2 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\n ______________________\n\n Decided: January 22, 2019\n ______________________\n\n GEORGE PAZUNIAK, O'Kelly, Ernst, & Bielli, LLC,\nWilmington, DE, argued for plaintiff-cross-appellant.\n\n TARA ELLIOTT, Latham & Watkins LLP, Washington,\nDC, argued for defendant-appellant. Also represented by\nRACHEL WEINER COHEN.\n ______________________\n\n Before DYK, TARANTO, and STOLL, Circuit Judges.\nDYK, Circuit Judge.\n The parties appeal and cross appeal from various rul-\nings by the U.S. District Court for the District of Dela-\nware in a patent and breach of contract dispute. Because\nthere was no final decision on the merits, we dismiss the\nappeal for lack of jurisdiction.\n BACKGROUND\n Princeton Digital Image Corporation (“PDIC”) owns\nU.S. Patent No. 4,813,056 (“the ’056 patent”), which\nrelates to methods for encoding image data and allegedly\ncovers the encoding of digital images in the JPEG file\nformat. In June 2011, PDIC licensed the ’056 patent to\nAdobe, Inc. In the license agreement, PDIC promised not\nto sue Adobe or Adobe’s customers for claims arising “in\nwhole or part owing to an Adobe Licensed Product.” J.A.\n1538–39.\n Beginning in December 2012, PDIC sued numerous\ncustomers of Adobe, alleging that the encoding of JPEG\nimages on the customers’ websites infringed claims of the\n’056 patent. In November 2014, Adobe moved to inter-\nvene to defend nine of its customers, contending that its\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 3\n\n\n\ncustomers were using Adobe products to display images\non their websites, which was covered by PDIC’s license to\nAdobe. The district court granted Adobe’s motion to\nintervene on May 5, 2015.\n On May 8, 2015, Adobe filed a complaint in interven-\ntion, asserting that PDIC breached its license agreement\nwith Adobe by suing Adobe’s customers. For this breach\nof contract claim, Adobe sought damages consisting of (1)\nits attorneys’ fees expended in connection with defending\nits customers and responding to customers’ indemnity\nrequests and (2) its fees expended in bringing the breach\nof contract claim itself.\n By July 31, 2015, PDIC had dismissed each of the in-\nfringement actions brought against Adobe’s customers in\nwhich Adobe had intervened. Adobe moved for attorneys’\nfees under 35 U.S.C. § 285, which permits an award of\nattorneys’ fees to the prevailing party in “exceptional\ncases,” and for sanctions under Federal Rule of Civil\nProcedure 11. The district court denied both fees and\nsanctions. As to § 285 fees, the district court concluded\nthat it “cannot determine at this time whether PDIC or\nAdobe is the prevailing party.” J.A. 26. Assuming that\nAdobe was the prevailing party, the court found that the\ncase was “exceptional” in that it “stand[s] out from the\nrest,” J.A. 39–40, but that in its discretion, it would deny\nthe request for attorneys’ fees because the conduct was\nnot “so exceptional,” J.A. 41 (emphasis in original) (cita-\ntion omitted). As to Rule 11 sanctions, the court conclud-\ned that it “cannot say that PDIC’s pre-suit investigation\nwas inadequate or that any filing was made for any\nimproper purpose.” J.A. 42.\n Litigation continued on Adobe’s breach of contract\nclaim. On August 1, 2017, the district court granted in\npart and denied in part PDIC’s motion for summary\njudgment based on liability and damages. As to liability,\n\f4 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nthe court held that there were “genuine issues of material\nfact precluding summary judgment,” because a “reasona-\nble juror could accept Adobe’s view that PDIC’s infringe-\nment allegations . . . cover the use of Adobe products,”\nwhich would violate the license agreement’s covenant not\nto sue. J.A. 60. But as to damages, the court held that\nAdobe could only collect “defense” fees—“that is, those\nAdobe incurred in defending [its customers] from PDIC’s\ninfringement suit, suits that were brought in alleged\nviolation of the covenant not to sue.” J.A. 64. Adobe\ncould not recover the fees that Adobe incurred “in at-\ntempting to vindicate its contract rights,” that is, “any\nattorney fees Adobe incurred in the affirmative breach-of-\ncontract suit.” J.A. 64. The court ordered Adobe to file a\nsupplemental report disclosing Adobe’s defense fees.\nAdobe filed the supplemental report on August 7, 2017.\n On August 17, 2017, the court struck Adobe’s supple-\nmental report because it did “not separate Adobe’s de-\nfense fees from its affirmative fees” but instead “claim[ed]\nall fees as defensive so long as they were incurred while at\nleast one Defendant (who requested indemnification) was\nstill involved in litigation with PDIC.” J.A. 82. The court\nconcluded, however, that “there is sufficient evidence in\nthe record to determine the amount of Adobe’s fees that\nare purely defense fees,” and therefore directed Adobe to\nfile a letter disclosing the total amount of such fees and\nthe record support for the claimed amount. J.A. 86–87.\nWhen Adobe filed its letter, however, the court struck it\nbecause it too “did not disclose a purely defensive num-\nber.” J.A. 106.\n The court nevertheless declined to grant summary\njudgment to PDIC on damages, explaining that it was\n“undisputed that some amount of Adobe’s legal fees are\npurely defensive.” J.A. 106. It ruled that Adobe would be\npermitted to present a purely defensive number to the\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 5\n\n\n\njury, but Adobe would have to disclose that number to\nPDIC before opening statements.\n In an effort to secure an appealable decision, Adobe\nthen requested that the court enter judgment in favor of\nPDIC, contending that in light of the court’s rulings,\n“Adobe doesn’t have damages to present,” which Adobe\ncontended was “an element of what is to be tried.” Tr. of\nPre-Trial Conference at 67:23–24, Princeton Digital Image\nCorp. v. Office Depot Inc., No. 1:13-cv-00239-LPS (D. Del.\nSept. 1, 2017), ECF No. 281. The court reiterated its\nconclusion “that there are purely defensive damages that\ncan be proven on this record,” but granted Adobe’s request\nand entered judgment in favor of PDIC. J.A. 106–08.\n Adobe appeals, contending that the district court\nerred in (1) not awarding fees under § 285 and sanctions\nunder Rule 11; (2) limiting the damages for Adobe’s\nbreach of contract claim; and (3) refusing to compel PDIC\nto produce additional documents (regarding PDIC’s pre-\nsuit investigation and litigation conduct) that Adobe\nasserted were encompassed within PDIC’s waiver of\nattorney-client privilege.\n PDIC cross appeals, contending that the district court\nerred in imposing two monetary sanctions on PDIC. The\nsanctions required PDIC to pay Adobe’s attorneys’ fees\nand costs in connection with (1) PDIC’s failure to timely\nanswer Adobe’s complaint in intervention in one of PDIC’s\ninfringement cases against an Adobe customer; and\n(2) PDIC’s failure to present a competent Rule 30(b)(6)\nwitness for deposition.\n DISCUSSION\n Adobe contends that we have jurisdiction under 28\nU.S.C. § 1295 because this is an appeal “from a final\ndecision of a district court.” Id. § 1295(a)(1). “Section\n1295’s final judgment rule mirrors that of its counterpart\n\f6 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nfound at 28 U.S.C. § 1291.” Pause Tech. LLC v. TiVo Inc.,\n401 F.3d 1290, 1292 (Fed. Cir. 2005) (quoting Nystrom v.\nTREX Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003)). The\ncentral question is whether the judgment entered by the\ndistrict court at Adobe’s request constitutes a final deci-\nsion. We hold that it does not.\n I\n A\n Generally, a final decision is a decision by the district\ncourt that “ends the litigation on the merits and leaves\nnothing for the court to do but execute the judgment.”\nCatlin v. United States, 324 U.S. 229, 233 (1945). “If a\n‘case is not fully adjudicated as to all claims for all par-\nties,’ there is no ‘final decision’ and therefore no jurisdic-\ntion.” Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320\nF.3d 1354, 1362 (Fed. Cir. 2003) (quoting Syntex Pharm.\nInt’l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526\n(Fed. Cir. 1990)).\n At one time, several circuit courts recognized an ex-\nception to this rule, permitting an appeal from a denial of\nclass certification if that denial sounded the “death knell”\nof the litigation. See Coopers & Lybrand v. Livesay, 437\nU.S. 463, 469–70 (1978), superseded on other grounds by\nrule as stated in Microsoft v. Baker, 137 S. Ct. 1702, 1708–\n09 (2017). The rationale for this exception was that\n“without the incentive of a possible group recovery the\nindividual plaintiff may find it economically imprudent to\npursue his lawsuit to a final judgment and then seek\nappellate review of an adverse class determination.” Id.\nThus, under this doctrine, appealability turned on wheth-\ner the plaintiff had an “adequate incentive to continue”\nlitigating. Id. at 471.\n The Supreme Court in Coopers & Lybrand rejected\nthe death knell doctrine. Id. at 476. “[T]he fact that an\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 7\n\n\n\ninterlocutory order may induce a party to abandon his\nclaim before final judgment is not a sufficient reason for\nconsidering it a ‘final decision’ within the meaning of\n§ 1291.” Id. at 477. Otherwise, many “other kinds of\ninterlocutory orders” that “create the risk of a premature\ndemise” of a plaintiff’s economic incentive to continue\nlitigating would become appealable as a matter of right.\nId. at 474. The Court held that the order decertifying the\nplaintiffs’ class was not a final decision and therefore not\nappealable. Id. at 464–65.\n More recently, in Microsoft v. Baker, the Supreme\nCourt again addressed appellate jurisdiction in the con-\ntext of an adverse class determination. There, following\nthe denial of class certification, plaintiffs took an addi-\ntional step that the Coopers & Lybrand plaintiffs did not:\nthey dismissed with prejudice their individual claims\nwhile reserving the right to revive their claims if the\ncertification decision were reversed, and then sought to\nappeal the denial of class certification. 137 S. Ct. at\n1706–07. The Court held that this “voluntary-dismissal\ntactic” “subverts the final-judgment rule” and “does not\ngive rise to a ‘final decision’ under § 1291.” Id. at 1712–13\n(brackets omitted). The Court reasoned that treating\nevery voluntary dismissal as a final decision would im-\npermissibly “allow indiscriminate appellate review of\ninterlocutory orders.” Id. at 1714. 1\n\n\n\n 1 The Court distinguished its earlier decision in\nUnited States v. Procter & Gamble Co., 356 U.S. 677, 680–\n81 (1958), where the district court ordered the govern-\nment, as plaintiff in a civil antitrust action, to produce a\ngrand jury transcript to the defendants. At the govern-\nment’s request, the district court amended the order to\nprovide that if the government did not produce the tran-\nscript, the complaint would be dismissed. Id. at 679. The\n\f8 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\n Contrary to Adobe’s argument, although the Supreme\nCourt in Microsoft relied in part on the conflict between\nallowing the appeal and the limited appeal right in the\nclass action context, id. at 1714–15, we think that Mi-\ncrosoft’s reasoning extends beyond that context. Follow-\ning Microsoft, other courts of appeals have applied its\nholding in cases not involving a denial of class certifica-\ntion. In Keena v. Groupon, Inc., 886 F.3d 360 (4th Cir.\n2018), the plaintiff voluntarily dismissed her claims after\nthe district court ordered her to arbitrate, because in her\nview “the costs of that process outweighed the potential\nrecovery.” Id. at 362. The Fourth Circuit held that the\norder to arbitrate was not a final decision under Microsoft\nand thus not appealable. Id. at 364.\n In Board of Trustees of the Plumbers, Pipe Fitters &\nMechanical Equipment Service, Local Union No. 392 v.\nHumbert, 884 F.3d 624, 625 (6th Cir. 2018), the district\ncourt held that certain defendants were liable to a union\nunder a collective bargaining agreement. The defendants\nattempted to facilitate an immediate appeal as to liability\nby stipulating to damages. Id. However, the stipulated\njudgment order also provided that “none of the parties are\nwaiving any rights or arguments in any subsequent\n\n\ngovernment refused to produce the transcript and the\ncourt dismissed the complaint. Id. at 679–80. Although\nthe government could have obtained an appeal of the\nproduction order “by the route of civil contempt,” the\nCourt treated the voluntary dismissal as final under the\ncircumstances, noting that this avoided “any unseemly\nconflict with the District Court.” Id. at 680. The Court in\nMicrosoft distinguished Procter & Gamble because “that\ncase—a civil antitrust enforcement action—involved\nneither class-action certification nor the sort of dismissal\ntactic at issue here.” 137 S. Ct. at 1715 n.11. Adobe does\nnot contend that this case is similar to Procter & Gamble.\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 9\n\n\n\nproceedings . . . including but not limited to the amount of\nthe damages.” Id. The Sixth Circuit held that because\nthis order “specifically reserve[d] the parties’ right to\nlitigate ‘the amount of the damages’” in future proceed-\nings, it did not “conclusively resolve” even the issue of\ndamages and hence was not a final judgment for the\nplaintiff under Microsoft. Id. at 626. 2\n B\n In an attempt to distinguish Microsoft and the cases\nfollowing it, Adobe argues that the district court’s damag-\nes rulings here are unlike the denial of class certification\nin Microsoft, and instead are “akin to an unfavorable\nclaim construction ruling, after which a party may stipu-\nlate to judgment of non-infringement to facilitate an\nimmediate appeal.” Appellant’s Reply Br. at 3. As in the\nclaim construction context, Adobe maintains, the district\ncourt’s order here “meant that Adobe’s claim was effec-\ntively dismissed.” Id. at 4.\n We disagree. Under our precedent, to be appealable a\nclaim construction order must preclude a finding of in-\nfringement—a required element of the plaintiff’s cause of\naction. Such preclusion of infringement may be estab-\nlished by the patent owner’s binding admission that the\naccused activities are not infringing under the adopted\nclaim construction. But where a claim construction order\ndoes not resolve the issue of infringement, it is not a final\ndecision, and, accordingly, is not appealable. See Taylor\nBrands, LLC v. GB II Corp., 627 F.3d 874, 877 (Fed. Cir.\n\n\n 2 But see Xlear, Inc. v. Focus Nutrition, LLC, 893\nF.3d 1227, 1236 (10th Cir. 2018) (“We read Microsoft as\naddressing the narrow situation where a hopeful class\naction plaintiff uses a stipulation of dismissal as a tactic\nto overcome the limitations placed on appellate jurisdic-\ntion by 28 U.S.C. § 1291.”).\n\f10 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\n2010) (only “a stipulated final judgment after a dispositive\nruling” is appealable); see also Wilson Sporting Goods Co.\nv. Hillerich & Bradsby Co., 442 F.3d 1322, 1326 (Fed. Cir.\n2006) (“[F]inal judgment in a patent case will usually\nproduce a judgment of infringement or non-infringement.\nThis court reviews claim construction only as necessary to\nreach that final judgment on an infringement cause of\naction.”); Nystrom v. TREX Co., 339 F.3d 1347, 1350\n(Fed. Cir. 2003) (“[I]mmediate appeal of an interlocutory\nclaim construction ruling without a resolution of all of the\nfactual issues of infringement or validity dependent\nthereon is often desired by one or both of the parties for\nstrategic or other reasons. But, other than the accommo-\ndation for deferred accounting in 28 U.S.C. § 1292(c)(2),\nthe rules of finality that define the jurisdiction of this\ncourt do not contain special provisions for patent cases or\nadmit to exceptions for strategic reasons or other-\nwise . . . .”).\n Here the district court’s damages rulings were not\ndispositive, as is required under Microsoft. In Microsoft,\nthe interlocutory order denying class certification was not\ndispositive because the order did not resolve any element\nof the plaintiffs’ claims on the merits. See 137 S. Ct. at\n1710–11. Microsoft at least establishes that a voluntary\ndismissal does not constitute a final judgment where the\ndistrict court’s ruling has not foreclosed the plaintiff’s\nability to prove the required elements of the cause of\naction. This interpretation of Microsoft has been adopted\nby the other circuits that have followed Microsoft. In\nKeena there was no final resolution of liability. See 886\nF.3d at 362. In Board of Trustees there was no final\nruling as to damages. See 884 F.3d at 626.\n Several decisions by other circuits pre-dating Mi-\ncrosoft reached the same result and are virtually identical\nto this case. In Palmieri v. Defaria, 88 F.3d 136, 139–40\n(2d Cir. 1996), the district court entered an order dismiss-\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 11\n\n\n\ning the complaint after the district court had excluded\nplaintiff’s preferred evidence in an in limine order. The\nSecond Circuit held that there was no appealable final\ndecision because the district court had “expressly declined\nto take the position . . . that [the plaintiff’s remaining]\nproof as a whole was insufficient as a matter of law.” Id.\nat 140. “The district court judge here continually showed\nhis willingness to revisit all of his rulings depending upon\nhow the evidence developed.” Id. at 141. Plaintiff “made\nclear to the district court that he sought to appeal the in\nlimine evidentiary rulings without proceeding to trial.\nHowever, under the circumstances, there was no course of\naction he could have taken that would have allowed this\nto occur.” Id.; see also Ali v. Fed. Ins. Co., 719 F.3d 83, 88\n(2d Cir. 2013) (explaining that although a plaintiff may\n“appeal from a voluntary dismissal” when “a prior or-\nder . . . had in effect dismissed plaintiffs’ complaint,” “to\nqualify as an ‘effective dismissal’ of the claim, . . . the\nadverse ruling must have rejected the claim as a matter of\nlaw” (citation omitted)).\n In Verzilli v. Flexon, Inc., 295 F.3d 421, 422 (3d Cir.\n2002), the district court had entered an order restricting\nthe plaintiff’s damages for failure to follow the court’s pre-\ntrial discovery rules. The plaintiff then entered into a\nconsent judgment in an attempt to facilitate an appeal\nchallenging the limitation of damages. Id. The Third\nCircuit dismissed for lack of jurisdiction, concluding that\nthe challenged order was interlocutory and that the\nconsent judgment did not create finality under § 1291.\nSee id. at 422–25.\n In Union Oil Co. of California v. John Brown E&C,\n121 F.3d 305, 309 (7th Cir. 1997), the district court had\nruled that the plaintiff’s breach of contract damages were\nlimited to $332,000, rather than the $8 million it sought.\nThe plaintiff, “not wishing to continue with the litigation\nif damages were so limited, entered into a stipulation . . .\n\f12 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nconditionally settling the case” and obtained a purported\nfinal order. Id. at 306. The Seventh Circuit held that\nthere was no final decision and dismissed the appeal,\nbecause “the merits were never decided”—the plaintiff\nmerely “d[id] not believe it’s worth the fight” to continue\nlitigating. Id. at 309, 312; see also Massey Ferguson Div.\nof Variety Corp. v. Gurley, 51 F.3d 102, 104–05 (7th Cir.\n1995) (“Not until all of the elements of a case have been\nwrapped up is there a final judgment . . . .”). Nothing in\nMicrosoft calls these cases into question.\n In sum, the cases both before and after Microsoft\nmake clear that unless the district court has conclusively\ndetermined, including determined by consent, that the\nplaintiff has failed to satisfy a required element of the\ncause of action, a voluntarily dismissal lacks finality. 3\n C\n Here there was no final ruling by the district court\nbarring recovery on Adobe’s breach claim because of a\nfailure to prove a required element of that claim. Under\nNew Jersey law, actual damages are not even a required\nelement of a breach of contract claim. “[W]henever there\nis a breach of contract . . . the law ordinarily infers that\ndamage ensued, and, in the absence of actual damages,\nthe law vindicates the right by awarding nominal damag-\nes.” Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477\n\n\n 3 We have held that “a final judgment exists when a\ndistrict court fully adjudicates some claims and by con-\nsent dismisses” all remaining unadjudicated claims,\nincluding counterclaims. Atlas IP, LLC v. Medtronic, Inc.,\n809 F.3d 599, 604 (Fed. Cir. 2015) (emphasis added).\nThat final judgment allows review of the adjudicated\nclaims but not of the unadjudicated claims. Atlas pro-\nvides no support for reviewing claims that have been\npartially adjudicated.\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 13\n\n\n\nA.2d 1224, 1228 (N.J. 1984); Karcher v. Phil. Fire &\nMarine Ins. Co., 116 A.2d 1, 3 (N.J. 1955) (plaintiff who\n“established a breach of the contract” “was entitled to at\nleast a judgment for nominal damages”). Nothing in the\ndistrict court’s rulings foreclosed an award of nominal\ndamages. Moreover, the district court did not even pre-\nclude Adobe from establishing actual damages, but in fact\nruled multiple times that “there are purely defensive\ndamages that can be proven on this record.” J.A. 106–07.\nThe district court’s rulings did not foreclose Adobe’s\nability to satisfy a required element of its breach claim;\nthey merely limited Adobe’s potential actual damages as\nin the cases discussed above.\n Accordingly, we conclude that Adobe could still have\nproceeded to trial on its breach claim, and was required to\ndo so to obtain a final decision on the merits that could be\nappealed. To be sure, the prospect of only a small damag-\nes recovery may have discouraged Adobe from going to\ntrial, but the cases discussed earlier establish that the\nfact that continuing litigation could be economically\nimprudent does not create a “final decision.” See Coopers\n& Lybrand, 437 U.S. at 477; Keena, 886 F.3d at 362;\nUnion Oil, 121 F.3d at 309.\n Adobe resists this conclusion, arguing that the district\ncourt’s judgment here qualifies as a “final decision” be-\ncause “there is no action remaining for the district court\nto take.” Appellant’s Reply Br. at 4. But the fact that\nAdobe “persuade[d] [the] district court to issue an order\npurporting to end the litigation” does not create finality\nunder Microsoft. 137 S. Ct. at 1715. Because the pur-\nported final judgment is ineffective, the district court\nmust treat the case as though final judgment had never\nbeen entered. There are thus further steps remaining for\nthe district court to take: it must determine whether\nPDIC breached its license agreement with Adobe, and if\nso, it must determine the damages (actual or nominal) to\n\f14 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nwhich Adobe is entitled. In short, the case must continue\nuntil there is a final disposition of the breach claim, at\nwhich point there can be an appeal.\n II\n Because there is no final judgment in the case, we al-\nso lack jurisdiction to consider Adobe’s objections to the\ndistrict court’s denial of attorneys’ fees under § 285 and\nsanctions under Rule 11, as well as PDIC’s cross-appeal\nregarding the two sanctions imposed on it.\n Although an order regarding attorneys’ fees entered\nafter a final judgment on the merits is separately appeal-\nable, here the district court’s order denying fees preceded\nany judgment on the merits. Such an interim order\ndenying fees is generally not appealable. See Giraldo v.\nBuilding Serv. 32B-J Pension Fund, 502 F.3d 200, 203 (2d\nCir. 2007) (denial of fees while merits litigation continued\nwas not appealable until “following the district court’s\nfinal judgment on the merits”); 15B Charles A. Wright,\nArthur R. Miller & Edward H. Cooper, Federal Practice\nand Procedure § 3915.6 (2d ed. 1992) [hereinafter “Wright\n& Miller”] (“Interim attorney fee awards present appeal\nquestions quite different from awards made upon conclu-\nsion of proceedings on the merits. Refusal to make an\ninterim award is not appealable . . . .”). In some limited\nand unusual circumstances, decisions as to fees before a\nfinal judgment on the merits might be appealable as\ncollateral orders, particularly if there is reason to believe\nthat there will be no opportunity for a future appeal on\nthe issue. See Graham v. Hartford Life & Accident Ins.\nCo., 501 F.3d 1153, 1163 n.11 (10th Cir. 2007) (denial of\npetition for fees in an ERISA case appealable as a collat-\neral order); Wright & Miller, supra, § 3915.6 (“Appeal\nmay be allowed, however, if there is substantial ground to\nfear that the award [of fees] cannot be recaptured if later\nproceedings make that appropriate or if the award is\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 15\n\n\n\nmade in a complex proceeding that promises to endure a\nlong time.”). No circumstances exist here that would\njustify treating the denial of fees as an order collateral to\nthe merits.\n The same is true for orders imposing or denying sanc-\ntions on a party to the proceeding: in general, such orders\nare separately appealable only if entered after a final\njudgment on the merits. See Sanders Assocs., Inc. v.\nSummagraphics Corp., 2 F.3d 394, 398 (Fed. Cir. 1993)\n(order imposing monetary sanctions in the course of\nlitigation not immediately appealable, but would only be\n“reviewable after final judgment is entered” on the mer-\nits); Tenkku v. Normandy Bank, 218 F.3d 926, 927 (8th\nCir. 2000) (order imposing discovery sanctions on party\nnot immediately appealable); McCright v. Santoki, 976\nF.2d 568, 570 (9th Cir. 1992) (denial of motion for Rule 11\nsanctions not immediately appealable); Wright & Miller\nsupra, § 3914.30 (“Denial of a party’s request for sanctions\nof whatever variety ordinarily should not be appealable”\nbefore final judgment on the merits).\n Only once there has been a final decision on the con-\ntract claim may there be an appeal from the denial of fees\npursuant to § 285, the denial of Rule 11 sanctions, and the\nimposition of monetary sanctions on PDIC.\n CONCLUSION\n The district court’s judgment is not final. We lack\njurisdiction over this appeal and cross appeal.\n DISMISSED\n COSTS\n No costs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360631/", "author_raw": "DYK, Circuit Judge."}]} | DYK | TARANTO | STOLL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583378/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: PRINCETON DIGITAL IMAGE CORPORATION, Plaintiff-Cross-Appellant v. OFFICE DEPOT INC., J.C. Penney Company, Inc., QVC Inc., Sears Holdings Corporation, Limited Brands Inc., Gap, Inc., Williams-Sonoma, Inc., Costco Wholesale Corporation, Nordstrom.com LLC, Nordstrom.com Inc., Nordstrom Inc., Defendants Adobe Inc., Defendant-Appellant\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n PRINCETON DIGITAL IMAGE CORPORATION,\n Plaintiff-Cross-Appellant\n\n v.\n\n OFFICE DEPOT INC., J.C. PENNEY COMPANY,\n INC., QVC INC., SEARS HOLDINGS\n CORPORATION, LIMITED BRANDS INC., GAP,\n INC., WILLIAMS-SONOMA, INC., COSTCO\nWHOLESALE CORPORATION, NORDSTROM.COM\nLLC, NORDSTROM.COM INC., NORDSTROM INC.,\n Defendants\n\n ADOBE INC.,\n Defendant-Appellant\n ______________________\n\n2017-2597, 2017-2598, 2017-2600, 2017-2602, 2017-2605,\n2017-2606, 2017-2609, 2017-2611, 2017-2612, 2017-2627,\n2017-2628, 2017-2629, 2017-2630, 2017-2631, 2017-2632,\n 2017-2633, 2017-2634, 2018-1006\n ______________________\n\n Appeals from the United States District Court for the\nDistrict of Delaware in Nos. 1:13-cv-00239-LPS, 1:13-cv-\n00287-LPS, 1:13-cv-00288-LPS, 1:13-cv-00289-LPS, 1:13-\ncv-00326-LPS, 1:13-cv-00330-LPS, 1:13-cv-00331-LPS,\n1:13-cv-00404-LPS, 1:13-cv-00408-LPS, Chief Judge\nLeonard P. Stark.\n\f2 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\n ______________________\n\n Decided: January 22, 2019\n ______________________\n\n GEORGE PAZUNIAK, O'Kelly, Ernst, & Bielli, LLC,\nWilmington, DE, argued for plaintiff-cross-appellant.\n\n TARA ELLIOTT, Latham & Watkins LLP, Washington,\nDC, argued for defendant-appellant. Also represented by\nRACHEL WEINER COHEN.\n ______________________\n\n Before DYK, TARANTO, and STOLL, Circuit Judges.\nDYK, Circuit Judge.\n The parties appeal and cross appeal from various rul-\nings by the U.S. District Court for the District of Dela-\nware in a patent and breach of contract dispute. Because\nthere was no final decision on the merits, we dismiss the\nappeal for lack of jurisdiction.\n BACKGROUND\n Princeton Digital Image Corporation (“PDIC”) owns\nU.S. Patent No. 4,813,056 (“the ’056 patent”), which\nrelates to methods for encoding image data and allegedly\ncovers the encoding of digital images in the JPEG file\nformat. In June 2011, PDIC licensed the ’056 patent to\nAdobe, Inc. In the license agreement, PDIC promised not\nto sue Adobe or Adobe’s customers for claims arising “in\nwhole or part owing to an Adobe Licensed Product.” J.A.\n1538–39.\n Beginning in December 2012, PDIC sued numerous\ncustomers of Adobe, alleging that the encoding of JPEG\nimages on the customers’ websites infringed claims of the\n’056 patent. In November 2014, Adobe moved to inter-\nvene to defend nine of its customers, contending that its\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 3\n\n\n\ncustomers were using Adobe products to display images\non their websites, which was covered by PDIC’s license to\nAdobe. The district court granted Adobe’s motion to\nintervene on May 5, 2015.\n On May 8, 2015, Adobe filed a complaint in interven-\ntion, asserting that PDIC breached its license agreement\nwith Adobe by suing Adobe’s customers. For this breach\nof contract claim, Adobe sought damages consisting of (1)\nits attorneys’ fees expended in connection with defending\nits customers and responding to customers’ indemnity\nrequests and (2) its fees expended in bringing the breach\nof contract claim itself.\n By July 31, 2015, PDIC had dismissed each of the in-\nfringement actions brought against Adobe’s customers in\nwhich Adobe had intervened. Adobe moved for attorneys’\nfees under 35 U.S.C. § 285, which permits an award of\nattorneys’ fees to the prevailing party in “exceptional\ncases,” and for sanctions under Federal Rule of Civil\nProcedure 11. The district court denied both fees and\nsanctions. As to § 285 fees, the district court concluded\nthat it “cannot determine at this time whether PDIC or\nAdobe is the prevailing party.” J.A. 26. Assuming that\nAdobe was the prevailing party, the court found that the\ncase was “exceptional” in that it “stand[s] out from the\nrest,” J.A. 39–40, but that in its discretion, it would deny\nthe request for attorneys’ fees because the conduct was\nnot “so exceptional,” J.A. 41 (emphasis in original) (cita-\ntion omitted). As to Rule 11 sanctions, the court conclud-\ned that it “cannot say that PDIC’s pre-suit investigation\nwas inadequate or that any filing was made for any\nimproper purpose.” J.A. 42.\n Litigation continued on Adobe’s breach of contract\nclaim. On August 1, 2017, the district court granted in\npart and denied in part PDIC’s motion for summary\njudgment based on liability and damages. As to liability,\n\f4 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nthe court held that there were “genuine issues of material\nfact precluding summary judgment,” because a “reasona-\nble juror could accept Adobe’s view that PDIC’s infringe-\nment allegations . . . cover the use of Adobe products,”\nwhich would violate the license agreement’s covenant not\nto sue. J.A. 60. But as to damages, the court held that\nAdobe could only collect “defense” fees—“that is, those\nAdobe incurred in defending [its customers] from PDIC’s\ninfringement suit, suits that were brought in alleged\nviolation of the covenant not to sue.” J.A. 64. Adobe\ncould not recover the fees that Adobe incurred “in at-\ntempting to vindicate its contract rights,” that is, “any\nattorney fees Adobe incurred in the affirmative breach-of-\ncontract suit.” J.A. 64. The court ordered Adobe to file a\nsupplemental report disclosing Adobe’s defense fees.\nAdobe filed the supplemental report on August 7, 2017.\n On August 17, 2017, the court struck Adobe’s supple-\nmental report because it did “not separate Adobe’s de-\nfense fees from its affirmative fees” but instead “claim[ed]\nall fees as defensive so long as they were incurred while at\nleast one Defendant (who requested indemnification) was\nstill involved in litigation with PDIC.” J.A. 82. The court\nconcluded, however, that “there is sufficient evidence in\nthe record to determine the amount of Adobe’s fees that\nare purely defense fees,” and therefore directed Adobe to\nfile a letter disclosing the total amount of such fees and\nthe record support for the claimed amount. J.A. 86–87.\nWhen Adobe filed its letter, however, the court struck it\nbecause it too “did not disclose a purely defensive num-\nber.” J.A. 106.\n The court nevertheless declined to grant summary\njudgment to PDIC on damages, explaining that it was\n“undisputed that some amount of Adobe’s legal fees are\npurely defensive.” J.A. 106. It ruled that Adobe would be\npermitted to present a purely defensive number to the\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 5\n\n\n\njury, but Adobe would have to disclose that number to\nPDIC before opening statements.\n In an effort to secure an appealable decision, Adobe\nthen requested that the court enter judgment in favor of\nPDIC, contending that in light of the court’s rulings,\n“Adobe doesn’t have damages to present,” which Adobe\ncontended was “an element of what is to be tried.” Tr. of\nPre-Trial Conference at 67:23–24, Princeton Digital Image\nCorp. v. Office Depot Inc., No. 1:13-cv-00239-LPS (D. Del.\nSept. 1, 2017), ECF No. 281. The court reiterated its\nconclusion “that there are purely defensive damages that\ncan be proven on this record,” but granted Adobe’s request\nand entered judgment in favor of PDIC. J.A. 106–08.\n Adobe appeals, contending that the district court\nerred in (1) not awarding fees under § 285 and sanctions\nunder Rule 11; (2) limiting the damages for Adobe’s\nbreach of contract claim; and (3) refusing to compel PDIC\nto produce additional documents (regarding PDIC’s pre-\nsuit investigation and litigation conduct) that Adobe\nasserted were encompassed within PDIC’s waiver of\nattorney-client privilege.\n PDIC cross appeals, contending that the district court\nerred in imposing two monetary sanctions on PDIC. The\nsanctions required PDIC to pay Adobe’s attorneys’ fees\nand costs in connection with (1) PDIC’s failure to timely\nanswer Adobe’s complaint in intervention in one of PDIC’s\ninfringement cases against an Adobe customer; and\n(2) PDIC’s failure to present a competent Rule 30(b)(6)\nwitness for deposition.\n DISCUSSION\n Adobe contends that we have jurisdiction under 28\nU.S.C. § 1295 because this is an appeal “from a final\ndecision of a district court.” Id. § 1295(a)(1). “Section\n1295’s final judgment rule mirrors that of its counterpart\n\f6 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nfound at 28 U.S.C. § 1291.” Pause Tech. LLC v. TiVo Inc.,\n401 F.3d 1290, 1292 (Fed. Cir. 2005) (quoting Nystrom v.\nTREX Co., 339 F.3d 1347, 1350 (Fed. Cir. 2003)). The\ncentral question is whether the judgment entered by the\ndistrict court at Adobe’s request constitutes a final deci-\nsion. We hold that it does not.\n I\n A\n Generally, a final decision is a decision by the district\ncourt that “ends the litigation on the merits and leaves\nnothing for the court to do but execute the judgment.”\nCatlin v. United States, 324 U.S. 229, 233 (1945). “If a\n‘case is not fully adjudicated as to all claims for all par-\nties,’ there is no ‘final decision’ and therefore no jurisdic-\ntion.” Pandrol USA, LP v. Airboss Ry. Prods., Inc., 320\nF.3d 1354, 1362 (Fed. Cir. 2003) (quoting Syntex Pharm.\nInt’l, Ltd. v. K-Line Pharm., Ltd., 905 F.2d 1525, 1526\n(Fed. Cir. 1990)).\n At one time, several circuit courts recognized an ex-\nception to this rule, permitting an appeal from a denial of\nclass certification if that denial sounded the “death knell”\nof the litigation. See Coopers & Lybrand v. Livesay, 437\nU.S. 463, 469–70 (1978), superseded on other grounds by\nrule as stated in Microsoft v. Baker, 137 S. Ct. 1702, 1708–\n09 (2017). The rationale for this exception was that\n“without the incentive of a possible group recovery the\nindividual plaintiff may find it economically imprudent to\npursue his lawsuit to a final judgment and then seek\nappellate review of an adverse class determination.” Id.\nThus, under this doctrine, appealability turned on wheth-\ner the plaintiff had an “adequate incentive to continue”\nlitigating. Id. at 471.\n The Supreme Court in Coopers & Lybrand rejected\nthe death knell doctrine. Id. at 476. “[T]he fact that an\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 7\n\n\n\ninterlocutory order may induce a party to abandon his\nclaim before final judgment is not a sufficient reason for\nconsidering it a ‘final decision’ within the meaning of\n§ 1291.” Id. at 477. Otherwise, many “other kinds of\ninterlocutory orders” that “create the risk of a premature\ndemise” of a plaintiff’s economic incentive to continue\nlitigating would become appealable as a matter of right.\nId. at 474. The Court held that the order decertifying the\nplaintiffs’ class was not a final decision and therefore not\nappealable. Id. at 464–65.\n More recently, in Microsoft v. Baker, the Supreme\nCourt again addressed appellate jurisdiction in the con-\ntext of an adverse class determination. There, following\nthe denial of class certification, plaintiffs took an addi-\ntional step that the Coopers & Lybrand plaintiffs did not:\nthey dismissed with prejudice their individual claims\nwhile reserving the right to revive their claims if the\ncertification decision were reversed, and then sought to\nappeal the denial of class certification. 137 S. Ct. at\n1706–07. The Court held that this “voluntary-dismissal\ntactic” “subverts the final-judgment rule” and “does not\ngive rise to a ‘final decision’ under § 1291.” Id. at 1712–13\n(brackets omitted). The Court reasoned that treating\nevery voluntary dismissal as a final decision would im-\npermissibly “allow indiscriminate appellate review of\ninterlocutory orders.” Id. at 1714. 1\n\n\n\n 1 The Court distinguished its earlier decision in\nUnited States v. Procter & Gamble Co., 356 U.S. 677, 680–\n81 (1958), where the district court ordered the govern-\nment, as plaintiff in a civil antitrust action, to produce a\ngrand jury transcript to the defendants. At the govern-\nment’s request, the district court amended the order to\nprovide that if the government did not produce the tran-\nscript, the complaint would be dismissed. Id. at 679. The\n\f8 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\n Contrary to Adobe’s argument, although the Supreme\nCourt in Microsoft relied in part on the conflict between\nallowing the appeal and the limited appeal right in the\nclass action context, id. at 1714–15, we think that Mi-\ncrosoft’s reasoning extends beyond that context. Follow-\ning Microsoft, other courts of appeals have applied its\nholding in cases not involving a denial of class certifica-\ntion. In Keena v. Groupon, Inc., 886 F.3d 360 (4th Cir.\n2018), the plaintiff voluntarily dismissed her claims after\nthe district court ordered her to arbitrate, because in her\nview “the costs of that process outweighed the potential\nrecovery.” Id. at 362. The Fourth Circuit held that the\norder to arbitrate was not a final decision under Microsoft\nand thus not appealable. Id. at 364.\n In Board of Trustees of the Plumbers, Pipe Fitters &\nMechanical Equipment Service, Local Union No. 392 v.\nHumbert, 884 F.3d 624, 625 (6th Cir. 2018), the district\ncourt held that certain defendants were liable to a union\nunder a collective bargaining agreement. The defendants\nattempted to facilitate an immediate appeal as to liability\nby stipulating to damages. Id. However, the stipulated\njudgment order also provided that “none of the parties are\nwaiving any rights or arguments in any subsequent\n\n\ngovernment refused to produce the transcript and the\ncourt dismissed the complaint. Id. at 679–80. Although\nthe government could have obtained an appeal of the\nproduction order “by the route of civil contempt,” the\nCourt treated the voluntary dismissal as final under the\ncircumstances, noting that this avoided “any unseemly\nconflict with the District Court.” Id. at 680. The Court in\nMicrosoft distinguished Procter & Gamble because “that\ncase—a civil antitrust enforcement action—involved\nneither class-action certification nor the sort of dismissal\ntactic at issue here.” 137 S. Ct. at 1715 n.11. Adobe does\nnot contend that this case is similar to Procter & Gamble.\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 9\n\n\n\nproceedings . . . including but not limited to the amount of\nthe damages.” Id. The Sixth Circuit held that because\nthis order “specifically reserve[d] the parties’ right to\nlitigate ‘the amount of the damages’” in future proceed-\nings, it did not “conclusively resolve” even the issue of\ndamages and hence was not a final judgment for the\nplaintiff under Microsoft. Id. at 626. 2\n B\n In an attempt to distinguish Microsoft and the cases\nfollowing it, Adobe argues that the district court’s damag-\nes rulings here are unlike the denial of class certification\nin Microsoft, and instead are “akin to an unfavorable\nclaim construction ruling, after which a party may stipu-\nlate to judgment of non-infringement to facilitate an\nimmediate appeal.” Appellant’s Reply Br. at 3. As in the\nclaim construction context, Adobe maintains, the district\ncourt’s order here “meant that Adobe’s claim was effec-\ntively dismissed.” Id. at 4.\n We disagree. Under our precedent, to be appealable a\nclaim construction order must preclude a finding of in-\nfringement—a required element of the plaintiff’s cause of\naction. Such preclusion of infringement may be estab-\nlished by the patent owner’s binding admission that the\naccused activities are not infringing under the adopted\nclaim construction. But where a claim construction order\ndoes not resolve the issue of infringement, it is not a final\ndecision, and, accordingly, is not appealable. See Taylor\nBrands, LLC v. GB II Corp., 627 F.3d 874, 877 (Fed. Cir.\n\n\n 2 But see Xlear, Inc. v. Focus Nutrition, LLC, 893\nF.3d 1227, 1236 (10th Cir. 2018) (“We read Microsoft as\naddressing the narrow situation where a hopeful class\naction plaintiff uses a stipulation of dismissal as a tactic\nto overcome the limitations placed on appellate jurisdic-\ntion by 28 U.S.C. § 1291.”).\n\f10 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\n2010) (only “a stipulated final judgment after a dispositive\nruling” is appealable); see also Wilson Sporting Goods Co.\nv. Hillerich & Bradsby Co., 442 F.3d 1322, 1326 (Fed. Cir.\n2006) (“[F]inal judgment in a patent case will usually\nproduce a judgment of infringement or non-infringement.\nThis court reviews claim construction only as necessary to\nreach that final judgment on an infringement cause of\naction.”); Nystrom v. TREX Co., 339 F.3d 1347, 1350\n(Fed. Cir. 2003) (“[I]mmediate appeal of an interlocutory\nclaim construction ruling without a resolution of all of the\nfactual issues of infringement or validity dependent\nthereon is often desired by one or both of the parties for\nstrategic or other reasons. But, other than the accommo-\ndation for deferred accounting in 28 U.S.C. § 1292(c)(2),\nthe rules of finality that define the jurisdiction of this\ncourt do not contain special provisions for patent cases or\nadmit to exceptions for strategic reasons or other-\nwise . . . .”).\n Here the district court’s damages rulings were not\ndispositive, as is required under Microsoft. In Microsoft,\nthe interlocutory order denying class certification was not\ndispositive because the order did not resolve any element\nof the plaintiffs’ claims on the merits. See 137 S. Ct. at\n1710–11. Microsoft at least establishes that a voluntary\ndismissal does not constitute a final judgment where the\ndistrict court’s ruling has not foreclosed the plaintiff’s\nability to prove the required elements of the cause of\naction. This interpretation of Microsoft has been adopted\nby the other circuits that have followed Microsoft. In\nKeena there was no final resolution of liability. See 886\nF.3d at 362. In Board of Trustees there was no final\nruling as to damages. See 884 F.3d at 626.\n Several decisions by other circuits pre-dating Mi-\ncrosoft reached the same result and are virtually identical\nto this case. In Palmieri v. Defaria, 88 F.3d 136, 139–40\n(2d Cir. 1996), the district court entered an order dismiss-\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 11\n\n\n\ning the complaint after the district court had excluded\nplaintiff’s preferred evidence in an in limine order. The\nSecond Circuit held that there was no appealable final\ndecision because the district court had “expressly declined\nto take the position . . . that [the plaintiff’s remaining]\nproof as a whole was insufficient as a matter of law.” Id.\nat 140. “The district court judge here continually showed\nhis willingness to revisit all of his rulings depending upon\nhow the evidence developed.” Id. at 141. Plaintiff “made\nclear to the district court that he sought to appeal the in\nlimine evidentiary rulings without proceeding to trial.\nHowever, under the circumstances, there was no course of\naction he could have taken that would have allowed this\nto occur.” Id.; see also Ali v. Fed. Ins. Co., 719 F.3d 83, 88\n(2d Cir. 2013) (explaining that although a plaintiff may\n“appeal from a voluntary dismissal” when “a prior or-\nder . . . had in effect dismissed plaintiffs’ complaint,” “to\nqualify as an ‘effective dismissal’ of the claim, . . . the\nadverse ruling must have rejected the claim as a matter of\nlaw” (citation omitted)).\n In Verzilli v. Flexon, Inc., 295 F.3d 421, 422 (3d Cir.\n2002), the district court had entered an order restricting\nthe plaintiff’s damages for failure to follow the court’s pre-\ntrial discovery rules. The plaintiff then entered into a\nconsent judgment in an attempt to facilitate an appeal\nchallenging the limitation of damages. Id. The Third\nCircuit dismissed for lack of jurisdiction, concluding that\nthe challenged order was interlocutory and that the\nconsent judgment did not create finality under § 1291.\nSee id. at 422–25.\n In Union Oil Co. of California v. John Brown E&C,\n121 F.3d 305, 309 (7th Cir. 1997), the district court had\nruled that the plaintiff’s breach of contract damages were\nlimited to $332,000, rather than the $8 million it sought.\nThe plaintiff, “not wishing to continue with the litigation\nif damages were so limited, entered into a stipulation . . .\n\f12 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nconditionally settling the case” and obtained a purported\nfinal order. Id. at 306. The Seventh Circuit held that\nthere was no final decision and dismissed the appeal,\nbecause “the merits were never decided”—the plaintiff\nmerely “d[id] not believe it’s worth the fight” to continue\nlitigating. Id. at 309, 312; see also Massey Ferguson Div.\nof Variety Corp. v. Gurley, 51 F.3d 102, 104–05 (7th Cir.\n1995) (“Not until all of the elements of a case have been\nwrapped up is there a final judgment . . . .”). Nothing in\nMicrosoft calls these cases into question.\n In sum, the cases both before and after Microsoft\nmake clear that unless the district court has conclusively\ndetermined, including determined by consent, that the\nplaintiff has failed to satisfy a required element of the\ncause of action, a voluntarily dismissal lacks finality. 3\n C\n Here there was no final ruling by the district court\nbarring recovery on Adobe’s breach claim because of a\nfailure to prove a required element of that claim. Under\nNew Jersey law, actual damages are not even a required\nelement of a breach of contract claim. “[W]henever there\nis a breach of contract . . . the law ordinarily infers that\ndamage ensued, and, in the absence of actual damages,\nthe law vindicates the right by awarding nominal damag-\nes.” Nappe v. Anschelewitz, Barr, Ansell & Bonello, 477\n\n\n 3 We have held that “a final judgment exists when a\ndistrict court fully adjudicates some claims and by con-\nsent dismisses” all remaining unadjudicated claims,\nincluding counterclaims. Atlas IP, LLC v. Medtronic, Inc.,\n809 F.3d 599, 604 (Fed. Cir. 2015) (emphasis added).\nThat final judgment allows review of the adjudicated\nclaims but not of the unadjudicated claims. Atlas pro-\nvides no support for reviewing claims that have been\npartially adjudicated.\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 13\n\n\n\nA.2d 1224, 1228 (N.J. 1984); Karcher v. Phil. Fire &\nMarine Ins. Co., 116 A.2d 1, 3 (N.J. 1955) (plaintiff who\n“established a breach of the contract” “was entitled to at\nleast a judgment for nominal damages”). Nothing in the\ndistrict court’s rulings foreclosed an award of nominal\ndamages. Moreover, the district court did not even pre-\nclude Adobe from establishing actual damages, but in fact\nruled multiple times that “there are purely defensive\ndamages that can be proven on this record.” J.A. 106–07.\nThe district court’s rulings did not foreclose Adobe’s\nability to satisfy a required element of its breach claim;\nthey merely limited Adobe’s potential actual damages as\nin the cases discussed above.\n Accordingly, we conclude that Adobe could still have\nproceeded to trial on its breach claim, and was required to\ndo so to obtain a final decision on the merits that could be\nappealed. To be sure, the prospect of only a small damag-\nes recovery may have discouraged Adobe from going to\ntrial, but the cases discussed earlier establish that the\nfact that continuing litigation could be economically\nimprudent does not create a “final decision.” See Coopers\n& Lybrand, 437 U.S. at 477; Keena, 886 F.3d at 362;\nUnion Oil, 121 F.3d at 309.\n Adobe resists this conclusion, arguing that the district\ncourt’s judgment here qualifies as a “final decision” be-\ncause “there is no action remaining for the district court\nto take.” Appellant’s Reply Br. at 4. But the fact that\nAdobe “persuade[d] [the] district court to issue an order\npurporting to end the litigation” does not create finality\nunder Microsoft. 137 S. Ct. at 1715. Because the pur-\nported final judgment is ineffective, the district court\nmust treat the case as though final judgment had never\nbeen entered. There are thus further steps remaining for\nthe district court to take: it must determine whether\nPDIC breached its license agreement with Adobe, and if\nso, it must determine the damages (actual or nominal) to\n\f14 PRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC.\n\n\n\n\nwhich Adobe is entitled. In short, the case must continue\nuntil there is a final disposition of the breach claim, at\nwhich point there can be an appeal.\n II\n Because there is no final judgment in the case, we al-\nso lack jurisdiction to consider Adobe’s objections to the\ndistrict court’s denial of attorneys’ fees under § 285 and\nsanctions under Rule 11, as well as PDIC’s cross-appeal\nregarding the two sanctions imposed on it.\n Although an order regarding attorneys’ fees entered\nafter a final judgment on the merits is separately appeal-\nable, here the district court’s order denying fees preceded\nany judgment on the merits. Such an interim order\ndenying fees is generally not appealable. See Giraldo v.\nBuilding Serv. 32B-J Pension Fund, 502 F.3d 200, 203 (2d\nCir. 2007) (denial of fees while merits litigation continued\nwas not appealable until “following the district court’s\nfinal judgment on the merits”); 15B Charles A. Wright,\nArthur R. Miller & Edward H. Cooper, Federal Practice\nand Procedure § 3915.6 (2d ed. 1992) [hereinafter “Wright\n& Miller”] (“Interim attorney fee awards present appeal\nquestions quite different from awards made upon conclu-\nsion of proceedings on the merits. Refusal to make an\ninterim award is not appealable . . . .”). In some limited\nand unusual circumstances, decisions as to fees before a\nfinal judgment on the merits might be appealable as\ncollateral orders, particularly if there is reason to believe\nthat there will be no opportunity for a future appeal on\nthe issue. See Graham v. Hartford Life & Accident Ins.\nCo., 501 F.3d 1153, 1163 n.11 (10th Cir. 2007) (denial of\npetition for fees in an ERISA case appealable as a collat-\neral order); Wright & Miller, supra, § 3915.6 (“Appeal\nmay be allowed, however, if there is substantial ground to\nfear that the award [of fees] cannot be recaptured if later\nproceedings make that appropriate or if the award is\n\fPRINCETON DIGITAL IMAGE CORP. v. OFFICE DEPOT INC. 15\n\n\n\nmade in a complex proceeding that promises to endure a\nlong time.”). No circumstances exist here that would\njustify treating the denial of fees as an order collateral to\nthe merits.\n The same is true for orders imposing or denying sanc-\ntions on a party to the proceeding: in general, such orders\nare separately appealable only if entered after a final\njudgment on the merits. See Sanders Assocs., Inc. v.\nSummagraphics Corp., 2 F.3d 394, 398 (Fed. Cir. 1993)\n(order imposing monetary sanctions in the course of\nlitigation not immediately appealable, but would only be\n“reviewable after final judgment is entered” on the mer-\nits); Tenkku v. Normandy Bank, 218 F.3d 926, 927 (8th\nCir. 2000) (order imposing discovery sanctions on party\nnot immediately appealable); McCright v. Santoki, 976\nF.2d 568, 570 (9th Cir. 1992) (denial of motion for Rule 11\nsanctions not immediately appealable); Wright & Miller\nsupra, § 3914.30 (“Denial of a party’s request for sanctions\nof whatever variety ordinarily should not be appealable”\nbefore final judgment on the merits).\n Only once there has been a final decision on the con-\ntract claim may there be an appeal from the denial of fees\npursuant to § 285, the denial of Rule 11 sanctions, and the\nimposition of monetary sanctions on PDIC.\n CONCLUSION\n The district court’s judgment is not final. We lack\njurisdiction over this appeal and cross appeal.\n DISMISSED\n COSTS\n No costs.\n[END_CASE]",
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4,583,711 | SUPERNUS PHARMACEUTICALS, INC., United Therapeutics Corporation, Plaintiffs-Appellants v. Andrei IANCU, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant-Appellee | Supernus Pharmaceuticals, Inc. v. Iancu | 2019-01-23 | 2017-1357 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Dyk, Schall, Reyna", "parties": "", "opinions": [{"author": "REYNA, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SUPERNUS PHARMACEUTICALS, INC., UNITED\n THERAPEUTICS CORPORATION,\n Plaintiffs-Appellants\n\n v.\n\n ANDREI IANCU, UNDER SECRETARY OF\n COMMERCE FOR INTELLECTUAL PROPERTY\n AND DIRECTOR OF THE UNITED STATES\n PATENT AND TRADEMARK OFFICE,\n Defendant-Appellee\n ______________________\n\n 2017-1357\n ______________________\n\n Appeal from the United States District Court for the\nEastern District of Virginia in No. 1:16-cv-00342-GBL-\nIDD, Judge Gerald Bruce Lee.\n ______________________\n\n Decided: January 23, 2019\n ______________________\n\n DOUGLAS H. CARSTEN, Wilson, Sonsini, Goodrich &\nRosati, PC, San Diego, CA, argued for plaintiffs-\nappellants. Also represented by VERONICA SUSANA\nASCARRUNZ, ADAM WILLIAM BURROWBRIDGE, Washington,\nDC.\n\f2 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\n SHAUN R. SNADER, United Therapeutics Corporation,\nWashington, DC, for plaintiff-appellant United Therapeu-\ntics Corporation.\n\n R. TRENT MCCOTTER, Office of the United States\nAttorney for the Eastern District of Virginia, Alexandria,\nVA, argued for defendant-appellee Andrei Iancu. Also\nrepresented by KAKOLI CAPRIHAN, BRIAN RACILLA, Office\nof the Solicitor, United States Patent and Trademark\nOffice, Alexandria, VA.\n ______________________\n\n Before DYK, SCHALL, and REYNA, Circuit Judges.\nREYNA, Circuit Judge.\n Supernus Pharmaceuticals, Inc. and United Thera-\npeutics Corp. appeal the entry of summary judgment by\nthe U.S. District Court for the Eastern District of Virgin-\nia. The district court determined that, based on this\ncourt’s decision in Gilead Sciences, Inc. v. Lee, the U.S.\nPatent and Trademark Office’s calculation of the patent\nterm adjustment for the patent at issue was correct, and\nthat summary judgment was warranted as a matter of\nlaw. We reverse the district court’s grant of summary\njudgment because the patent term adjustment in this case\nwent beyond the period during which the applicant failed\nto undertake reasonable efforts and thereby exceeded the\nlimitations set by the patent term adjustment statute.\n BACKGROUND\n I.\n The life of a patent, the period of time during which\nthe exclusive nature of a patent is in effect, is measured\nin years and days and is referred to as the “term” of the\npatent or “patent term.” Prior to June 8, 1995, the term\nof a patent was seventeen years, measured from the date\nthat the patent issued to its expiration date seventeen\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 3\n\n\n\nyears later. See Merck & Co. v. Kessler, 80 F.3d 1543,\n1547 (Fed. Cir. 1996).\n When the United States entered the World Trade Or-\nganization, it assumed certain obligations and commit-\nments under the terms of the World Trade Organization\nAgreement on Trade Related Aspects of Intellectual\nProperty Rights. See Agreement on Trade-Related As-\npects of Intellectual Property Rights, 33 I.L.M. 1197\n(1994). As a result, Congress changed the patent term\nfrom seventeen years to twenty years, measured from the\nfiling date of the earliest United States non-provisional\napplication for the patent. See Pub. L. No. 103-465, § 532,\n108 Stat. 4809, 4984 (1994) (codified at 35 U.S.C.\n§ 154(a)(2)).\n In addition to extending the patent term from seven-\nteen years to twenty years, Congress passed the patent\nterm adjustment (“PTA”) statute in 1999 in an effort to\ndiscourage delay in the patent application process. See\nPub. L. No. 106-113, § 1000(a)(9), 113 Stat. 1501, 1536\n(1999) (codified at 35 U.S.C. § 154(b)). Specifically,\n§ 154(b) grants the U.S. Patent and Trademark Office\n(“USPTO”) authority to adjust the patent term by adding\ndays to account for delays caused by the USPTO. See id.\n§§ 154(b)(1)(A)–(C). Such adjustments are favorable to an\napplicant because they extend the life of the patent. But\nthe USPTO may also reduce the PTA in order to account\nfor delays caused by the applicant. Id. § 154(b)(2); see,\ne.g., Gilead Scis., Inc. v. Lee, 778 F.3d 1341, 1343–45 (Fed.\nCir. 2015).\n Section 154(b)(1) outlines three types of delays caused\nby the USPTO, known as Types A, B, and C, that can\nresult in a PTA. Adjustments for a Type A delay apply\nwhen the USPTO fails to provide a notification under 35\nU.S.C. § 132 or a notice of allowance within fourteen\nmonths of an application’s filing. 35 U.S.C.\n§ 154(b)(1)(A)(i). The statute provides that “the term of\n\f4 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nthe patent shall be extended 1 day for each day” the\nUSPTO does not meet its response deadlines. Id.\n§ 154(b)(1)(A). Similarly, Type B adjustments extend the\npatent term by one day for every day that the USPTO\nfails to issue a patent after three years have passed\nbetween the filing date of the application and the date of\nallowance. Id. § 154(b)(1)(B). Finally, Type C adjust-\nments are for delays that are excluded from the Type B\ndelay due to derivation proceedings, secrecy orders, or\nsuccessful appeals. Id. § 154(b)(1)(C).\n As noted above, the statute recognizes that conduct by\nthe applicant may also cause delay in the examination or\nprosecution of the application. Section 154(b)(2)(C) au-\nthorizes the USPTO to reduce the total amount of PTA for\nType A, B, and C delays by deducting the number of days\nequal to the period of time that “the applicant failed to\nengage in reasonable efforts to conclude prosecution of the\napplication.” Id. § 154(b)(2)(C)(i). An applicant is deemed\nto have failed to engage in reasonable efforts for the\ncumulative time in excess of three months that the appli-\ncant takes to respond to a notice of rejection, objection,\nargument, or other request from the USPTO. Id.\n§ 154(b)(2)(C)(ii). The statute provides that the Director\nof the USPTO “shall prescribe regulations establishing\nthe circumstances that constitute a failure of an applicant\nto engage in reasonable efforts to conclude processing or\nexamination of an application.” Id. § 154(b)(2)(C)(iii).\n The Director of the USPTO has promulgated such\nregulations: 37 C.F.R. § 1.704, titled “Reduction of period\nof adjustment of patent term.” 37 C.F.R. § 1.704 (2015).\nRelevant here is § 1.704(c)(8), which regulates the calcu-\nlation for reduction of PTA in instances where the appli-\ncant submits a supplemental paper to the USPTO.\nSection 1.704(c)(8) provides:\n Submission of a supplemental reply or other pa-\n per, other than a supplemental reply or other pa-\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 5\n\n\n\n per expressly requested by the examiner, after a\n reply has been filed, in which case the period of\n adjustment set forth in § 1.703 [that extends the\n patent’s term due to USPTO delay] shall be re-\n duced by the number of days, if any, beginning on\n the day after the date the initial reply was filed\n and ending on the date that the supplemental re-\n ply or other such paper was filed . . . .\nId.\n The USPTO has also promulgated regulations that\npermit an applicant to file an information disclosure\nstatement (“IDS”) up to the end of the patent examination\nprocess, while providing incentives for an applicant to\nsubmit any necessary IDS promptly. Id. §§ 1.97(a)–(d).\nAs relevant here, the USPTO will accept without condi-\ntion an IDS that is filed before notice of the first office\naction after the applicant has filed a request for continued\nexamination (“RCE”). Id. § 1.97(b)(4). Also relevant here,\nwhen an applicant submits an IDS disclosing a communi-\ncation from a foreign patent office, there is a thirty-day\nsafe harbor that exempts reduction of PTAs under\n§ 1.704(c)(8), provided that the IDS is submitted within\nthirty days of the applicant receiving the information\nfrom the foreign patent office that is eventually contained\nin the IDS. 1 Id. § 1.704(d)(1).\n\n\n\n 1 There are various requirements that apply to a\nsubmission of an IDS that are independent of the PTA.\nFor example, during prosecution, the applicant generally\nhas a duty of candor and good faith that includes a duty to\ndisclose all information known to the applicant to be\nmaterial to the patentability of the claims. See 37 C.F.R.\n§ 1.56(a). Specifically, applicants are encouraged to\n“carefully examine” prior art cited in search reports of a\n\f6 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\n II.\n The relevant facts in this case are not in dispute. Ap-\npellant Supernus Pharmaceuticals, Inc. (“Supernus”) is\nthe owner and assignee of the patent at issue, U.S. Patent\nNo. 8,747,897 (“the ’897 patent”), titled “Osmotic Drug\nDelivery System.” Co-Appellant United Therapeutics\nCorp. (“UTC”) is the exclusive licensee of the ’897 patent.\nUTC assisted in the prosecution of the patent application\nand took action as the applicant in that capacity. Super-\nnus and UTC are collectively referred to herein as “Su-\npernus.”\n On April 27, 2006, Supernus filed U.S. Patent Appli-\ncation No. 11/412,100 (“the ’100 application”). On August\n20, 2010, the USPTO issued a final rejection. On Febru-\nary 22, 2011, Supernus filed an RCE, which removed the\nfinality of the rejection and permitted the examiner to\nconsider additional information submitted by Supernus.\n35 U.S.C. § 132(b); 37 C.F.R. § 1.114. The ’100 application\nissued on June 10, 2014, as the ’897 patent.\n On the same day it filed the ’100 application, Super-\nnus filed international application PCT/US2007/009969,\nclaiming priority from the ’100 application. The interna-\ntional application gave rise to European Application No.\n07755989.6. On October 13, 2011, the European Patent\nOffice (“EPO”) issued the European application as Euro-\npean Patent EP2010189 (“the EP patent”). On August 21,\n2012, the EPO notified Supernus’s European patent\ncounsel that a Notice of Opposition was filed by Sandoz\n\n\n\n\nforeign patent office in a counterpart application “to make\nsure that any material information contained therein is\ndisclosed” to the USPTO. Id. Such disclosure can be\nsubmitted in the form of an IDS. See id. § 1.98.\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 7\n\n\n\nAG to the EP patent, citing 10 documents (“the Sandoz\nOpposition”).\n On September 11, 2012, Supernus received a letter\nfrom its European patent counsel disclosing the EPO\nnotification and the Sandoz Opposition. Seventy-nine\ndays later, or 100 days from the EPO notification of the\nSandoz Opposition, Supernus submitted a supplemental\nIDS on November 29, 2012, informing the USPTO of the\nSandoz Opposition and providing the documents cited in\nthe Sandoz Opposition, the Sandoz Opposition itself, the\nEPO notification, and the letter from Supernus’s Europe-\nan patent counsel. 2\n On September 10, 2013, the USPTO issued a first Of-\nfice Action responding to Supernus’s RCE. On January\n10, 2014, Supernus filed a response. On February 4,\n2014, the USPTO issued a Notice of Allowance. On June\n10, 2014, the USPTO issued the ’897 patent, reflecting a\nPTA of 1,260 days, meaning that the USPTO had added\n1,260 days to the patent’s twenty-year term.\n In calculating the PTA, the USPTO attributed 2,321\ndays to USPTO delay: 1,656 days for Type A delays (for\nthe USPTO’s failure to meet the mandated statutory\nresponse deadlines), and 665 days for Type B delays (for\nthe USPTO’s failure to issue the patent within three\nyears of the application’s filing date). See J.A. 80. Next,\nthe USPTO reduced the PTA of 2,321 days by 175 days to\naccount for overlapping Type A and Type B delays, and by\n886 days for applicant delay to arrive at the total 1,260-\nday PTA. Relevant here, of the 886 days attributed to\napplicant delay, 646 days were assessed for the period\n\n\n\n 2 Supernus did not attempt to invoke the protec-\ntions of the thirty-day safe harbor established by\n37 C.F.R. § 1.704(d)(1).\n\f8 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nbetween the February 22, 2011 filing of the RCE and the\nNovember 29, 2012 submission of the IDS. This appeal\nfocuses on this 646-day reduction in the PTA due to\npurported applicant delay.\n Supernus filed a request for Reconsideration of Patent\nTerm Adjustment on grounds that the deduction of the\n646-day period was improper. 3 Supernus argued that “37\nC.F.R. § 1.704(c)(8) does not govern post-RCE submis-\nsions.” J.A. 510–11. According to Supernus, another\nregulation—37 C.F.R. § 1.704(c)(6)—should apply instead.\n The USPTO rejected the request for reconsideration.\nThe USPTO determined that under this court’s decision\nin Gilead, submission of an IDS after the filing of a re-\nsponse to an election or restriction requirement is subject\nto a reduction under 37 C.F.R. § 1.704(c)(8) because any\nrelevant information submitted to the USPTO after an\ninitial reply interferes with the USPTO’s ability to process\nan application. J.A. 521. The USPTO found that “[t]he\nsame analysis applies to submission of an IDS document\nafter the filing of an RCE” because “[a]ny IDS submission\nby [a] patentee after the filing of a[n] RCE ‘interferes’\nwith the [USPTO’s ability] to process an application\nbecause the examiner may be forced to go back and review\nthe application again.” Id. The USPTO concluded that\n37 C.F.R. § 1.704(c)(8) applies and that the reduction of\n\n\n 3 Supernus also argued that the USPTO erred in\ndeducting 126 days from the PTA for the period between\nthe time of allowance and the time of issuance, following\nthis court’s then recent decision in Novartis AG v. Lee,\n740 F.3d 593, 602 (Fed. Cir. 2014) (holding that the time\nbetween allowance and issuance may not be reduced from\nthe PTA). The USPTO agreed and awarded the 126 days\nto Supernus, which brought the final total PTA of the ’897\npatent to 1,386 days.\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 9\n\n\n\nthe PTA by the 646 days due to applicant delay was\nproper.\n Supernus appealed to the U.S. District Court for the\nEastern District of Virginia and filed a motion for sum-\nmary judgment on the grounds that 37 C.F.R.\n§ 1.704(c)(8) is arbitrary, capricious, and contrary to the\nPTA statute. Supernus Pharm., Inc. v. Lee, No. 1:16-CV-\n00342, 2016 WL 8739331, at *4 (E.D. Va. Oct. 18, 2016).\nSupernus also argued that 37 C.F.R. § 1.704(d)(1) is\nsimilarly arbitrary and capricious, and contrary to the\nPTA statute. Id. at *6. Finally, Supernus argued that out\nof the 646-day period that the USPTO attributed to\napplicant delay, it was entitled to at least 546 of those\ndays—i.e., the period between its filing of the RCE and\nthe EPO notification of the Sandoz Opposition. 4 Id. The\nUSPTO filed an opposition and cross-motion for summary\njudgment. Id. at *2.\n The district court granted summary judgment in favor\nof the USPTO. Id. at *8. The district court concluded\nthat the USPTO did not err in the PTA calculation for the\n’897 patent and that this court’s decision in Gilead fore-\nclosed, as a matter of law, Supernus’s statutory interpre-\ntation arguments that 37 C.F.R. § 1.704(c)(8) and\n§ 1.704(d)(1) are arbitrary, capricious, and otherwise\ncontrary to the PTA statute. Id. at *4–8 (citing Gilead,\n778 F.3d at 1350).\n\n\n\n 4 Supernus concedes that it failed to engage in “rea-\nsonable efforts” for the remaining 100 days of the 646-day\nperiod: from the EPO notification to Supernus’s submis-\nsion of the supplemental IDS. Appellant Reply Br. 2. On\nappeal, Supernus only challenges the USPTO’s assess-\nment of the preceding 546 days as applicant delay. Appel-\nlant Br. 59.\n\f10 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\n Supernus timely filed this appeal. We have jurisdic-\ntion pursuant to 28 U.S.C. §§ 1295(a)(1), 1295(a)(4)(C)\n(2012).\n DISCUSSION\n I. Standard of Review\n This court reviews a district court’s grant of summary\njudgment under the law of the regional circuit, in this\ncase, the Fourth Circuit. See Mohsenzadeh v. Lee, 790\nF.3d 1377, 1381 (Fed. Cir. 2015); Charles Mach. Works,\nInc. v. Vermeer Mfg. Co., 723 F.3d 1376, 1378 (Fed. Cir.\n2013). Applying the law of the Fourth Circuit, we review\nthe grant of summary judgment de novo. Gallagher v.\nReliance Standard Life Ins. Co., 305 F.3d 264, 268 (4th\nCir. 2002). Patent term adjustment decisions of the\nUSPTO are reviewed in accordance with the Administra-\ntive Procedure Act (“APA”). 35 U.S.C. § 154(b)(4)(A);\nGilead, 778 F.3d at 1346. Under the APA, a court should\nset aside the USPTO’s actions if found to be “in excess of\nstatutory jurisdiction, authority, or limitations,” or “arbi-\ntrary, capricious, an abuse of discretion, or otherwise not\nin accordance with law.” 5 U.S.C. §§ 706(2)(A), (C); Gile-\nad, 778 F.3d at 1346. When reviewing an agency’s statu-\ntory interpretation, this court applies the two-step\nframework established in Chevron U.S.A. Inc. v. Nat. Res.\nDef. Council, Inc., 467 U.S. 837 (1984). See Gilead, 778\nF.3d at 1346.\n II. Gilead\n As a preliminary issue, we note that this court has\ngrappled with the reasonableness of 37 C.F.R.\n§ 1.704(c)(8), a regulation asserted in this appeal by the\nUSPTO. In Gilead, this court held that the regulation “is\na reasonable interpretation of the [PTA] statute” insofar\nas it includes “not only applicant conduct or behavior that\nresult in actual delay, but also those having the potential\nto result in delay irrespective of whether such delay\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 11\n\n\n\nactually occurred.” Gilead, 778 F.3d at 1349–50. This\ncourt also acknowledged that § 1.704(c)(8) encompasses\nthe filing of a supplemental IDS in the calculated delay\nperiod. Id. at 1349.\n In Gilead, the patent owner Gilead brought an action\nchallenging the USPTO’s assessment of a 57-day appli-\ncant delay in calculating PTA deduction, based on Gile-\nad’s delay during examination between its initial reply to\na restriction requirement and its submission of a supple-\nmental IDS disclosing two other co-pending Gilead patent\napplications. Id. at 1345–46. The district court granted\nsummary judgment in favor of the USPTO, and we af-\nfirmed. Id. at 1346, 1350–51. Engaging in the Chevron\nanalysis, this court concluded that Congress did not\naddress the precise question at issue, i.e., “whether a\nfailure to engage in reasonable efforts requires conduct\nthat actually causes delay,” and that Congress expressly\ndelegated authority to the USPTO to prescribe regula-\ntions establishing circumstances that constitute a failure\nof an applicant to engage in reasonable efforts to conclude\nexamination. See id. at 1349–50. At step two of Chevron,\nwe recognized that we give deference to the agency where\nCongress explicitly left a gap to fill and held that a rea-\nsonable interpretation of the PTA statute was that “Con-\ngress intended to sanction not only applicant conduct or\nbehavior that result in actual delay, but also those having\nthe potential to result in delay irrespective of whether\nsuch delay actually occurred.” Id. Thus, the resultant\nregulation, 37 C.F.R. § 1.704(c)(8), was reasonable insofar\nas it included both potential and actual delay. Id.\n We conclude that Gilead does not foreclose Supernus’s\nstatutory interpretation argument. Supernus’s argument\nis that any reduction in PTA may not exceed the “time\nduring which the applicant failed to engage in reasonable\nefforts to conclude prosecution of the application.” 35\nU.S.C. § 154(b)(2)(C)(i). Gilead ruled only that the regu-\nlation reasonably drew no line between actual and poten-\n\f12 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\ntial delay and could include a supplemental IDS. It did\nnot hold the regulation was reasonable in reducing PTA\nfor periods during which there was no failure to engage in\nreasonable efforts to conclude prosecution. Gilead simply\ndid not address the precondition—failure to engage in\nreasonable efforts—at issue here.\n In Gilead, Appellant Gilead had two other co-pending\npatent applications that it disclosed in the supplemental\nIDS. Gilead could have submitted the supplemental IDS\ndisclosing its co-pending applications when it filed its\nresponse to the restriction requirement. Gilead, there-\nfore, involved a period of time during which the applicant\ncould have taken identifiable efforts to conclude prosecu-\ntion but did not. Gilead focused on whether the statute\nrequired the applicant’s failure to take reasonable efforts\nto have resulted in actual delay, as opposed to the poten-\ntial to cause delay, to count towards reduction of PTA.\n In contrast, this case is not about whether efforts tak-\nen by Supernus, or those it could have taken, resulted in\nactual or potential delay. Supernus contends, and the\nUSPTO does not dispute, that Supernus could not have\nundertaken any efforts to conclude prosecution of the ’100\napplication during the 546-day period between the filing\nof the RCE on February 22, 2011, and the EPO’s notifica-\ntion of the Sandoz Opposition on August 21, 2012.\nJ.A. 552–53; Appellant Br. 7 n.3; Appellee Br. 16–17.\n In addition, the precise question addressed in Gilead\nwas not the precise question under review in this case. In\nGilead, the “precise question” reviewed by the court in its\nChevron analysis was “whether a failure to engage in\nreasonable efforts requires conduct that actually causes\ndelay.” Gilead, 778 F.3d at 1349. That question fell\nwithin the USPTO’s gap-filling authority to determine\nwhat constitutes “reasonable efforts.” Id.; 35 U.S.C.\n§ 154(b)(2)(C)(iii). The precise question in this case is\nwhether the USPTO may reduce PTA by a period that\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 13\n\n\n\nexceeds the “time during which the applicant failed to\nengage in reasonable efforts to conclude prosecution.” 35\nU.S.C. § 154(b)(2)(C)(i). Gilead did not decide that ques-\ntion.\n Because Gilead involved different facts and a different\nlegal question, Gilead is not controlling in this action. Cf.\nFed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S.\n449, 456, 467 (2007) (Roberts, C.J., writing in non-\nmajority section of the opinion of the Court) (noting that\nupholding a facial challenge to a statute does not foreclose\nall future challenges to the statute in the particular\ncircumstances of another case). The district court erred,\ntherefore, when it granted the USPTO summary judg-\nment on the basis of this court’s decision in Gilead. And\nbecause, as we next conclude, the statute plainly resolves\nthe question at issue here against the USPTO, we reverse\nthe district court’s grant of summary judgment.\n III. Chevron Framework\n A. The PTA Statute Answers the Precise Question\n This case presents a question of statutory interpreta-\ntion by an agency to which we apply the Chevron frame-\nwork. The first step of our legal analysis, therefore, is to\n“ask whether the statute’s plain terms ‘directly addres[s]\nthe precise question at issue.’” Nat’l Cable & Telecomms.\nAss’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005)\n(quoting Chevron, 467 U.S. at 843). The precise question\nat issue in this case is whether the USPTO may reduce\nPTA by a period that exceeds the “time during which the\napplicant failed to engage in reasonable efforts to con-\nclude prosecution.” 35 U.S.C. § 154(b)(2)(C)(i).\n We begin by looking at the plain language of the PTA\nstatute. See United States v. Hohri, 482 U.S. 64, 69\n(1987) (“[T]he ‘starting point in every case involving\nconstruction of a statute is the language itself.’” (quoting\nKelly v. Robinson, 479 U.S. 36, 43 (1986))); Suprema, Inc.\n\f14 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nv. Int’l Trade Comm’n, 796 F.3d 1338, 1346 (Fed. Cir.\n2015) (en banc) (“Chevron’s framework begins with the\nlanguage of the statute.”). “Absent a clearly expressed\nlegislative intention to the contrary, [the statute’s plain]\nlanguage must ordinarily be regarded as conclusive.”\nConsumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,\n447 U.S. 102, 108 (1980).\n In this case, the pertinent language of the PTA stat-\nute is plain, clear, and conclusive. “Congress has supplied\na clear and unambiguous answer to the interpretive\nquestion at hand.” Pereira v. Sessions, 138 S. Ct. 2105,\n2113 (2018); see also Chevron, 467 U.S. at 842–43 (“If the\nintent of Congress is clear, that is the end of the matter;\nfor the court, as well as the agency, must give effect to the\nunambiguously expressed intent of Congress.”) On the\nbasis of the plain language of the statute, we hold that the\nUSPTO may not count as applicant delay a period of time\nduring which there was no action that the applicant could\ntake to conclude prosecution of the patent. Doing so\nwould exceed the time during which the applicant failed\nto engage in reasonable efforts.\n The PTA statute provides in pertinent part:\n (b) Adjustment of patent term.—\n ....\n (2) Limitations.—\n ....\n (C) Reduction of period of adjustment.—\n (i) The period of adjustment of the term of a patent\n under paragraph (1) shall be reduced by a period\n equal to the period of time during which the ap-\n plicant failed to engage in reasonable efforts to\n conclude prosecution of the application.\n35 U.S.C. § 154(b)(2)(C)(i) (emphases added).\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 15\n\n\n\n A plain reading of the statute shows that Congress\nimposed two limitations on the amount of time that the\nUSPTO can use as applicant delay for purposes of reduc-\ning PTA. First, the statute expressly requires that any\nreduction to PTA be equal to the period of time during\nwhich an applicant fails to engage in reasonable efforts.\nSecond, the statute expressly ties reduction of the PTA to\nthe specific time period during which the applicant\nfailed to engage in reasonable efforts.\n The PTA statute requires that any PTA reduction be\nequal to the period of time during which an applicant\nfails to engage in reasonable efforts. The word “equal” is\nwidely understood to mean “the same in amount, number,\nor size.” E.g., Equal, Cambridge Dictionary of American\nEnglish 287 (2000). Stated differently, PTA reduction\ncannot exceed the period of time during which an appli-\ncant failed to engage in reasonable efforts. Thus, if there\nis no period of time during which the applicant could\nhave but failed to engage in reasonable efforts, there can\nbe no reduction to the PTA. The word “during” is similar-\nly understood to mean “from the beginning to the end of (a\nparticular period)” or “at some time between the begin-\nning and the end of (a period).” E.g., During, Cambridge\nDictionary of American English 267 (2000). The preced-\ning “shall” “generally imposes a nondiscretionary duty.”\nSAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018); see\nalso Kingdomware Techs., Inc. v. United States, 136 S. Ct.\n1969, 1977 (2016) (discussing that “shall” is mandatory\nand connotes a requirement). Thus, the statutory period\nof PTA reduction must be the same number of days as the\nperiod from the beginning to the end of the applicant’s\nfailure to engage in reasonable efforts to conclude prose-\ncution. PTA cannot be reduced by a period of time during\nwhich there is no identifiable effort in which the applicant\ncould have engaged to conclude prosecution because such\ntime would not be “equal to” and would instead exceed the\ntime during which an applicant failed to engage in rea-\n\f16 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nsonable efforts. This is consistent with the PTA exten-\nsions of “1 day for each day” granted for the A, B, and C\ntypes of USPTO delays.\n The “equal to” limitation ensures that applicants will\nbe charged the full amount of time corresponding to their\nown delay. See Gilead, 778 F.3d at 1348–49 (“[I]t appears\nCongress’s primary intent was to penalize applicant\nconduct as opposed to the results of such conduct.”). By\nthe same token, the “equal to” limitation protects appli-\ncants by ensuring that PTA can only be reduced by peri-\nods of time during which the applicant failed to engage in\nsuch efforts. See id. at 1344 (“[B]ecause the duration of a\npatent is no longer solely predicated on its date of issu-\nance, delays in the patent examination process decrease\nthe length of an applicant’s patent term.”); H.R. Rep. No.\n106-287, pt. 1, at 50 (1999) (“[N]o patent applicant dili-\ngently seeking to obtain a patent will receive a term of\nless than the 17 years as provided under the pre-GATT\nstandard.” (footnote omitted)). The expressed legislative\nintent is consistent with the plain language of the statute.\nThe USPTO cannot, therefore, count as applicant delay\nany period of time during which there were no efforts in\nwhich the applicant could have engaged to conclude\nprosecution of the patent. See SAS Inst., 138 S. Ct. at\n1355 (“Where a statute’s language carries a plain mean-\ning, the duty of an administrative agency is to follow its\ncommands as written, not to supplant those commands\nwith others it may prefer.”).\n A period of time including no identifiable efforts that\ncould have been undertaken cannot be “equal to” the\nperiod of failure to undertake reasonable efforts under the\nterms of the statute. To conclude otherwise renders the\nPTA statute’s “reasonable efforts” language superfluous.\nThis understanding of the plain language makes practical\nsense and is consistent with the legislative history be-\ncause Congress intended the PTA statute to discourage\ndilatory conduct by patent applicants and reward appli-\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 17\n\n\n\ncants that take action to conclude prosecution of the\npatent. See H.R. Rep. 106-287, at 49–50.\nB. The USPTO’s Assessment of Applicant Delay is Incon-\n sistent with the PTA Statute\n As shown in the figure below, the USPTO reduced the\nPTA by 646 days due to applicant delay. Supernus con-\ncedes that it failed to engage in “reasonable efforts” for\nthe last 100 days of the 646-day period. It states, howev-\ner, that there was nothing it could have done during the\nperiod of time from the filing of the RCE and original IDS\nto the EPO communication.\n\n\n\n\nAppellant Br. 8 (reproduced and modified).\n We agree with Supernus that there were no efforts\nthat it could have taken in the period of time during the\npreceding 546 days. The record is silent as to what Su-\npernus could have done to conclude prosecution during\nthe 546-day time period, beginning with the filing of the\nRCE/IDS on February 22, 2011, and ending on the date of\nthe EPO notification, August 21, 2012. Nor does the\nUSPTO contend that Supernus could have undertaken\nany “reasonable efforts” during the 546-day time period to\nconclude prosecution. To the contrary, the facts indicate\n\f18 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nthat there was no action Supernus could have taken to\nadvance prosecution of the patent during the 546-day\nperiod, particularly because the EPO notice of opposition\ndid not yet exist. Here, the USPTO’s interpretation of the\nstatute would unfairly penalize applicants, fail to incen-\ntivize applicants not to delay, and fail to protect appli-\ncants’ full patent terms. The USPTO’s additional 546-day\nassessment as applicant delay is contrary to the plain\nmeaning of the statute because the 646-day total reduc-\ntion is not equal to a period of time during which\nSupernus failed to engage in reasonable efforts to con-\nclude prosecution of the ’897 patent. The USPTO’s inter-\npretation of the PTA statute applied in these\ncircumstances exceeds the statutory limitations for PTA\nreduction and therefore, the USPTO actions are “in excess\nof statutory . . . authority.” See 5 U.S.C. § 706(2)(C).\n This decision is consistent with the intent of Con-\ngress. Congress chose to speak plainly to the precise issue\nby setting limitations on the period of PTA reduction. See\nCity of Arlington. v. FCC, 569 U.S. 290, 296 (2013) (“Con-\ngress knows to speak in plain terms when it wishes to\ncircumscribe, and in capacious terms when it wishes to\nenlarge, agency discretion.”). Congress intended that the\nPTA statute not adversely impact applicants like Super-\nnus who could have done nothing to advance prosecution.\nTo be sure, Congress expressly granted the USPTO au-\nthority to determine what constitutes reasonable efforts,\nbut the USPTO lacks any authority to exceed the statuto-\nry “equal to” limitation by including the 546-day time\nperiod during which it does not contend that Supernus\nfailed to undertake reasonable efforts to conclude prosecu-\ntion.\n CONCLUSION\n The USPTO argues that 37 C.F.R. §§ 1.704(c)(8) and\n(d)(1) are reasonable exercises of its rulemaking authori-\nty. For the reasons discussed above, neither regulation\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 19\n\n\n\nempowers the USPTO to exceed its statutory authority as\nit has done in these circumstances by assessing a PTA\nreduction that exceeds the statutory limitations. We\ndetermine that the PTA statute addresses the precise\nquestion at issue, so our inquiry ends at step one of the\nChevron analysis. “Because the language of the statute\nitself controls this case and sets an unambiguous rule,”\nwe need not go further in our analysis of the specific\nregulations asserted in this appeal. Wyeth v. Kappos, 591\nF.3d 1364, 1372 (Fed. Cir. 2010) (citing Smith v. City of\nJackson, 544 U.S. 228, 267 (2005) (Scalia, J., concurring\nin part and concurring in the judgment) (“Of course, it is\nelementary that ‘no deference is due to agency interpreta-\ntions at odds with the plain language of the statute it-\nself.’”)). Any reduction to PTA shall be “equal to the\nperiod of time during which the applicant fail[s] to engage\nin reasonable efforts to conclude prosecution of the appli-\ncation.” 35 U.S.C. § 154(b)(2)(C)(i).\n We find the USPTO’s PTA reduction to be incon-\nsistent with the PTA statute and, as a result, we accord\nno deference to the USPTO’s application of the regula-\ntions at issue in these circumstances. See Wyeth, 591\nF.3d at 1372. We have considered the USTPO’s remain-\ning arguments and find them unpersuasive. We conclude\nthat the district court erred in granting summary judg-\nment in favor of the USPTO. Based on the foregoing\nreasoning, we reverse the district court’s summary judg-\nment order and remand for further proceedings consistent\nwith this opinion.\n REVERSED AND REMANDED\n COSTS\n No costs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4360964/", "author_raw": "REYNA, Circuit Judge."}]} | DYK | SCHALL | REYNA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4583711/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: SUPERNUS PHARMACEUTICALS, INC., United Therapeutics Corporation, Plaintiffs-Appellants v. Andrei IANCU, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Defendant-Appellee\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n SUPERNUS PHARMACEUTICALS, INC., UNITED\n THERAPEUTICS CORPORATION,\n Plaintiffs-Appellants\n\n v.\n\n ANDREI IANCU, UNDER SECRETARY OF\n COMMERCE FOR INTELLECTUAL PROPERTY\n AND DIRECTOR OF THE UNITED STATES\n PATENT AND TRADEMARK OFFICE,\n Defendant-Appellee\n ______________________\n\n 2017-1357\n ______________________\n\n Appeal from the United States District Court for the\nEastern District of Virginia in No. 1:16-cv-00342-GBL-\nIDD, Judge Gerald Bruce Lee.\n ______________________\n\n Decided: January 23, 2019\n ______________________\n\n DOUGLAS H. CARSTEN, Wilson, Sonsini, Goodrich &\nRosati, PC, San Diego, CA, argued for plaintiffs-\nappellants. Also represented by VERONICA SUSANA\nASCARRUNZ, ADAM WILLIAM BURROWBRIDGE, Washington,\nDC.\n\f2 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\n SHAUN R. SNADER, United Therapeutics Corporation,\nWashington, DC, for plaintiff-appellant United Therapeu-\ntics Corporation.\n\n R. TRENT MCCOTTER, Office of the United States\nAttorney for the Eastern District of Virginia, Alexandria,\nVA, argued for defendant-appellee Andrei Iancu. Also\nrepresented by KAKOLI CAPRIHAN, BRIAN RACILLA, Office\nof the Solicitor, United States Patent and Trademark\nOffice, Alexandria, VA.\n ______________________\n\n Before DYK, SCHALL, and REYNA, Circuit Judges.\nREYNA, Circuit Judge.\n Supernus Pharmaceuticals, Inc. and United Thera-\npeutics Corp. appeal the entry of summary judgment by\nthe U.S. District Court for the Eastern District of Virgin-\nia. The district court determined that, based on this\ncourt’s decision in Gilead Sciences, Inc. v. Lee, the U.S.\nPatent and Trademark Office’s calculation of the patent\nterm adjustment for the patent at issue was correct, and\nthat summary judgment was warranted as a matter of\nlaw. We reverse the district court’s grant of summary\njudgment because the patent term adjustment in this case\nwent beyond the period during which the applicant failed\nto undertake reasonable efforts and thereby exceeded the\nlimitations set by the patent term adjustment statute.\n BACKGROUND\n I.\n The life of a patent, the period of time during which\nthe exclusive nature of a patent is in effect, is measured\nin years and days and is referred to as the “term” of the\npatent or “patent term.” Prior to June 8, 1995, the term\nof a patent was seventeen years, measured from the date\nthat the patent issued to its expiration date seventeen\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 3\n\n\n\nyears later. See Merck & Co. v. Kessler, 80 F.3d 1543,\n1547 (Fed. Cir. 1996).\n When the United States entered the World Trade Or-\nganization, it assumed certain obligations and commit-\nments under the terms of the World Trade Organization\nAgreement on Trade Related Aspects of Intellectual\nProperty Rights. See Agreement on Trade-Related As-\npects of Intellectual Property Rights, 33 I.L.M. 1197\n(1994). As a result, Congress changed the patent term\nfrom seventeen years to twenty years, measured from the\nfiling date of the earliest United States non-provisional\napplication for the patent. See Pub. L. No. 103-465, § 532,\n108 Stat. 4809, 4984 (1994) (codified at 35 U.S.C.\n§ 154(a)(2)).\n In addition to extending the patent term from seven-\nteen years to twenty years, Congress passed the patent\nterm adjustment (“PTA”) statute in 1999 in an effort to\ndiscourage delay in the patent application process. See\nPub. L. No. 106-113, § 1000(a)(9), 113 Stat. 1501, 1536\n(1999) (codified at 35 U.S.C. § 154(b)). Specifically,\n§ 154(b) grants the U.S. Patent and Trademark Office\n(“USPTO”) authority to adjust the patent term by adding\ndays to account for delays caused by the USPTO. See id.\n§§ 154(b)(1)(A)–(C). Such adjustments are favorable to an\napplicant because they extend the life of the patent. But\nthe USPTO may also reduce the PTA in order to account\nfor delays caused by the applicant. Id. § 154(b)(2); see,\ne.g., Gilead Scis., Inc. v. Lee, 778 F.3d 1341, 1343–45 (Fed.\nCir. 2015).\n Section 154(b)(1) outlines three types of delays caused\nby the USPTO, known as Types A, B, and C, that can\nresult in a PTA. Adjustments for a Type A delay apply\nwhen the USPTO fails to provide a notification under 35\nU.S.C. § 132 or a notice of allowance within fourteen\nmonths of an application’s filing. 35 U.S.C.\n§ 154(b)(1)(A)(i). The statute provides that “the term of\n\f4 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nthe patent shall be extended 1 day for each day” the\nUSPTO does not meet its response deadlines. Id.\n§ 154(b)(1)(A). Similarly, Type B adjustments extend the\npatent term by one day for every day that the USPTO\nfails to issue a patent after three years have passed\nbetween the filing date of the application and the date of\nallowance. Id. § 154(b)(1)(B). Finally, Type C adjust-\nments are for delays that are excluded from the Type B\ndelay due to derivation proceedings, secrecy orders, or\nsuccessful appeals. Id. § 154(b)(1)(C).\n As noted above, the statute recognizes that conduct by\nthe applicant may also cause delay in the examination or\nprosecution of the application. Section 154(b)(2)(C) au-\nthorizes the USPTO to reduce the total amount of PTA for\nType A, B, and C delays by deducting the number of days\nequal to the period of time that “the applicant failed to\nengage in reasonable efforts to conclude prosecution of the\napplication.” Id. § 154(b)(2)(C)(i). An applicant is deemed\nto have failed to engage in reasonable efforts for the\ncumulative time in excess of three months that the appli-\ncant takes to respond to a notice of rejection, objection,\nargument, or other request from the USPTO. Id.\n§ 154(b)(2)(C)(ii). The statute provides that the Director\nof the USPTO “shall prescribe regulations establishing\nthe circumstances that constitute a failure of an applicant\nto engage in reasonable efforts to conclude processing or\nexamination of an application.” Id. § 154(b)(2)(C)(iii).\n The Director of the USPTO has promulgated such\nregulations: 37 C.F.R. § 1.704, titled “Reduction of period\nof adjustment of patent term.” 37 C.F.R. § 1.704 (2015).\nRelevant here is § 1.704(c)(8), which regulates the calcu-\nlation for reduction of PTA in instances where the appli-\ncant submits a supplemental paper to the USPTO.\nSection 1.704(c)(8) provides:\n Submission of a supplemental reply or other pa-\n per, other than a supplemental reply or other pa-\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 5\n\n\n\n per expressly requested by the examiner, after a\n reply has been filed, in which case the period of\n adjustment set forth in § 1.703 [that extends the\n patent’s term due to USPTO delay] shall be re-\n duced by the number of days, if any, beginning on\n the day after the date the initial reply was filed\n and ending on the date that the supplemental re-\n ply or other such paper was filed . . . .\nId.\n The USPTO has also promulgated regulations that\npermit an applicant to file an information disclosure\nstatement (“IDS”) up to the end of the patent examination\nprocess, while providing incentives for an applicant to\nsubmit any necessary IDS promptly. Id. §§ 1.97(a)–(d).\nAs relevant here, the USPTO will accept without condi-\ntion an IDS that is filed before notice of the first office\naction after the applicant has filed a request for continued\nexamination (“RCE”). Id. § 1.97(b)(4). Also relevant here,\nwhen an applicant submits an IDS disclosing a communi-\ncation from a foreign patent office, there is a thirty-day\nsafe harbor that exempts reduction of PTAs under\n§ 1.704(c)(8), provided that the IDS is submitted within\nthirty days of the applicant receiving the information\nfrom the foreign patent office that is eventually contained\nin the IDS. 1 Id. § 1.704(d)(1).\n\n\n\n 1 There are various requirements that apply to a\nsubmission of an IDS that are independent of the PTA.\nFor example, during prosecution, the applicant generally\nhas a duty of candor and good faith that includes a duty to\ndisclose all information known to the applicant to be\nmaterial to the patentability of the claims. See 37 C.F.R.\n§ 1.56(a). Specifically, applicants are encouraged to\n“carefully examine” prior art cited in search reports of a\n\f6 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\n II.\n The relevant facts in this case are not in dispute. Ap-\npellant Supernus Pharmaceuticals, Inc. (“Supernus”) is\nthe owner and assignee of the patent at issue, U.S. Patent\nNo. 8,747,897 (“the ’897 patent”), titled “Osmotic Drug\nDelivery System.” Co-Appellant United Therapeutics\nCorp. (“UTC”) is the exclusive licensee of the ’897 patent.\nUTC assisted in the prosecution of the patent application\nand took action as the applicant in that capacity. Super-\nnus and UTC are collectively referred to herein as “Su-\npernus.”\n On April 27, 2006, Supernus filed U.S. Patent Appli-\ncation No. 11/412,100 (“the ’100 application”). On August\n20, 2010, the USPTO issued a final rejection. On Febru-\nary 22, 2011, Supernus filed an RCE, which removed the\nfinality of the rejection and permitted the examiner to\nconsider additional information submitted by Supernus.\n35 U.S.C. § 132(b); 37 C.F.R. § 1.114. The ’100 application\nissued on June 10, 2014, as the ’897 patent.\n On the same day it filed the ’100 application, Super-\nnus filed international application PCT/US2007/009969,\nclaiming priority from the ’100 application. The interna-\ntional application gave rise to European Application No.\n07755989.6. On October 13, 2011, the European Patent\nOffice (“EPO”) issued the European application as Euro-\npean Patent EP2010189 (“the EP patent”). On August 21,\n2012, the EPO notified Supernus’s European patent\ncounsel that a Notice of Opposition was filed by Sandoz\n\n\n\n\nforeign patent office in a counterpart application “to make\nsure that any material information contained therein is\ndisclosed” to the USPTO. Id. Such disclosure can be\nsubmitted in the form of an IDS. See id. § 1.98.\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 7\n\n\n\nAG to the EP patent, citing 10 documents (“the Sandoz\nOpposition”).\n On September 11, 2012, Supernus received a letter\nfrom its European patent counsel disclosing the EPO\nnotification and the Sandoz Opposition. Seventy-nine\ndays later, or 100 days from the EPO notification of the\nSandoz Opposition, Supernus submitted a supplemental\nIDS on November 29, 2012, informing the USPTO of the\nSandoz Opposition and providing the documents cited in\nthe Sandoz Opposition, the Sandoz Opposition itself, the\nEPO notification, and the letter from Supernus’s Europe-\nan patent counsel. 2\n On September 10, 2013, the USPTO issued a first Of-\nfice Action responding to Supernus’s RCE. On January\n10, 2014, Supernus filed a response. On February 4,\n2014, the USPTO issued a Notice of Allowance. On June\n10, 2014, the USPTO issued the ’897 patent, reflecting a\nPTA of 1,260 days, meaning that the USPTO had added\n1,260 days to the patent’s twenty-year term.\n In calculating the PTA, the USPTO attributed 2,321\ndays to USPTO delay: 1,656 days for Type A delays (for\nthe USPTO’s failure to meet the mandated statutory\nresponse deadlines), and 665 days for Type B delays (for\nthe USPTO’s failure to issue the patent within three\nyears of the application’s filing date). See J.A. 80. Next,\nthe USPTO reduced the PTA of 2,321 days by 175 days to\naccount for overlapping Type A and Type B delays, and by\n886 days for applicant delay to arrive at the total 1,260-\nday PTA. Relevant here, of the 886 days attributed to\napplicant delay, 646 days were assessed for the period\n\n\n\n 2 Supernus did not attempt to invoke the protec-\ntions of the thirty-day safe harbor established by\n37 C.F.R. § 1.704(d)(1).\n\f8 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nbetween the February 22, 2011 filing of the RCE and the\nNovember 29, 2012 submission of the IDS. This appeal\nfocuses on this 646-day reduction in the PTA due to\npurported applicant delay.\n Supernus filed a request for Reconsideration of Patent\nTerm Adjustment on grounds that the deduction of the\n646-day period was improper. 3 Supernus argued that “37\nC.F.R. § 1.704(c)(8) does not govern post-RCE submis-\nsions.” J.A. 510–11. According to Supernus, another\nregulation—37 C.F.R. § 1.704(c)(6)—should apply instead.\n The USPTO rejected the request for reconsideration.\nThe USPTO determined that under this court’s decision\nin Gilead, submission of an IDS after the filing of a re-\nsponse to an election or restriction requirement is subject\nto a reduction under 37 C.F.R. § 1.704(c)(8) because any\nrelevant information submitted to the USPTO after an\ninitial reply interferes with the USPTO’s ability to process\nan application. J.A. 521. The USPTO found that “[t]he\nsame analysis applies to submission of an IDS document\nafter the filing of an RCE” because “[a]ny IDS submission\nby [a] patentee after the filing of a[n] RCE ‘interferes’\nwith the [USPTO’s ability] to process an application\nbecause the examiner may be forced to go back and review\nthe application again.” Id. The USPTO concluded that\n37 C.F.R. § 1.704(c)(8) applies and that the reduction of\n\n\n 3 Supernus also argued that the USPTO erred in\ndeducting 126 days from the PTA for the period between\nthe time of allowance and the time of issuance, following\nthis court’s then recent decision in Novartis AG v. Lee,\n740 F.3d 593, 602 (Fed. Cir. 2014) (holding that the time\nbetween allowance and issuance may not be reduced from\nthe PTA). The USPTO agreed and awarded the 126 days\nto Supernus, which brought the final total PTA of the ’897\npatent to 1,386 days.\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 9\n\n\n\nthe PTA by the 646 days due to applicant delay was\nproper.\n Supernus appealed to the U.S. District Court for the\nEastern District of Virginia and filed a motion for sum-\nmary judgment on the grounds that 37 C.F.R.\n§ 1.704(c)(8) is arbitrary, capricious, and contrary to the\nPTA statute. Supernus Pharm., Inc. v. Lee, No. 1:16-CV-\n00342, 2016 WL 8739331, at *4 (E.D. Va. Oct. 18, 2016).\nSupernus also argued that 37 C.F.R. § 1.704(d)(1) is\nsimilarly arbitrary and capricious, and contrary to the\nPTA statute. Id. at *6. Finally, Supernus argued that out\nof the 646-day period that the USPTO attributed to\napplicant delay, it was entitled to at least 546 of those\ndays—i.e., the period between its filing of the RCE and\nthe EPO notification of the Sandoz Opposition. 4 Id. The\nUSPTO filed an opposition and cross-motion for summary\njudgment. Id. at *2.\n The district court granted summary judgment in favor\nof the USPTO. Id. at *8. The district court concluded\nthat the USPTO did not err in the PTA calculation for the\n’897 patent and that this court’s decision in Gilead fore-\nclosed, as a matter of law, Supernus’s statutory interpre-\ntation arguments that 37 C.F.R. § 1.704(c)(8) and\n§ 1.704(d)(1) are arbitrary, capricious, and otherwise\ncontrary to the PTA statute. Id. at *4–8 (citing Gilead,\n778 F.3d at 1350).\n\n\n\n 4 Supernus concedes that it failed to engage in “rea-\nsonable efforts” for the remaining 100 days of the 646-day\nperiod: from the EPO notification to Supernus’s submis-\nsion of the supplemental IDS. Appellant Reply Br. 2. On\nappeal, Supernus only challenges the USPTO’s assess-\nment of the preceding 546 days as applicant delay. Appel-\nlant Br. 59.\n\f10 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\n Supernus timely filed this appeal. We have jurisdic-\ntion pursuant to 28 U.S.C. §§ 1295(a)(1), 1295(a)(4)(C)\n(2012).\n DISCUSSION\n I. Standard of Review\n This court reviews a district court’s grant of summary\njudgment under the law of the regional circuit, in this\ncase, the Fourth Circuit. See Mohsenzadeh v. Lee, 790\nF.3d 1377, 1381 (Fed. Cir. 2015); Charles Mach. Works,\nInc. v. Vermeer Mfg. Co., 723 F.3d 1376, 1378 (Fed. Cir.\n2013). Applying the law of the Fourth Circuit, we review\nthe grant of summary judgment de novo. Gallagher v.\nReliance Standard Life Ins. Co., 305 F.3d 264, 268 (4th\nCir. 2002). Patent term adjustment decisions of the\nUSPTO are reviewed in accordance with the Administra-\ntive Procedure Act (“APA”). 35 U.S.C. § 154(b)(4)(A);\nGilead, 778 F.3d at 1346. Under the APA, a court should\nset aside the USPTO’s actions if found to be “in excess of\nstatutory jurisdiction, authority, or limitations,” or “arbi-\ntrary, capricious, an abuse of discretion, or otherwise not\nin accordance with law.” 5 U.S.C. §§ 706(2)(A), (C); Gile-\nad, 778 F.3d at 1346. When reviewing an agency’s statu-\ntory interpretation, this court applies the two-step\nframework established in Chevron U.S.A. Inc. v. Nat. Res.\nDef. Council, Inc., 467 U.S. 837 (1984). See Gilead, 778\nF.3d at 1346.\n II. Gilead\n As a preliminary issue, we note that this court has\ngrappled with the reasonableness of 37 C.F.R.\n§ 1.704(c)(8), a regulation asserted in this appeal by the\nUSPTO. In Gilead, this court held that the regulation “is\na reasonable interpretation of the [PTA] statute” insofar\nas it includes “not only applicant conduct or behavior that\nresult in actual delay, but also those having the potential\nto result in delay irrespective of whether such delay\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 11\n\n\n\nactually occurred.” Gilead, 778 F.3d at 1349–50. This\ncourt also acknowledged that § 1.704(c)(8) encompasses\nthe filing of a supplemental IDS in the calculated delay\nperiod. Id. at 1349.\n In Gilead, the patent owner Gilead brought an action\nchallenging the USPTO’s assessment of a 57-day appli-\ncant delay in calculating PTA deduction, based on Gile-\nad’s delay during examination between its initial reply to\na restriction requirement and its submission of a supple-\nmental IDS disclosing two other co-pending Gilead patent\napplications. Id. at 1345–46. The district court granted\nsummary judgment in favor of the USPTO, and we af-\nfirmed. Id. at 1346, 1350–51. Engaging in the Chevron\nanalysis, this court concluded that Congress did not\naddress the precise question at issue, i.e., “whether a\nfailure to engage in reasonable efforts requires conduct\nthat actually causes delay,” and that Congress expressly\ndelegated authority to the USPTO to prescribe regula-\ntions establishing circumstances that constitute a failure\nof an applicant to engage in reasonable efforts to conclude\nexamination. See id. at 1349–50. At step two of Chevron,\nwe recognized that we give deference to the agency where\nCongress explicitly left a gap to fill and held that a rea-\nsonable interpretation of the PTA statute was that “Con-\ngress intended to sanction not only applicant conduct or\nbehavior that result in actual delay, but also those having\nthe potential to result in delay irrespective of whether\nsuch delay actually occurred.” Id. Thus, the resultant\nregulation, 37 C.F.R. § 1.704(c)(8), was reasonable insofar\nas it included both potential and actual delay. Id.\n We conclude that Gilead does not foreclose Supernus’s\nstatutory interpretation argument. Supernus’s argument\nis that any reduction in PTA may not exceed the “time\nduring which the applicant failed to engage in reasonable\nefforts to conclude prosecution of the application.” 35\nU.S.C. § 154(b)(2)(C)(i). Gilead ruled only that the regu-\nlation reasonably drew no line between actual and poten-\n\f12 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\ntial delay and could include a supplemental IDS. It did\nnot hold the regulation was reasonable in reducing PTA\nfor periods during which there was no failure to engage in\nreasonable efforts to conclude prosecution. Gilead simply\ndid not address the precondition—failure to engage in\nreasonable efforts—at issue here.\n In Gilead, Appellant Gilead had two other co-pending\npatent applications that it disclosed in the supplemental\nIDS. Gilead could have submitted the supplemental IDS\ndisclosing its co-pending applications when it filed its\nresponse to the restriction requirement. Gilead, there-\nfore, involved a period of time during which the applicant\ncould have taken identifiable efforts to conclude prosecu-\ntion but did not. Gilead focused on whether the statute\nrequired the applicant’s failure to take reasonable efforts\nto have resulted in actual delay, as opposed to the poten-\ntial to cause delay, to count towards reduction of PTA.\n In contrast, this case is not about whether efforts tak-\nen by Supernus, or those it could have taken, resulted in\nactual or potential delay. Supernus contends, and the\nUSPTO does not dispute, that Supernus could not have\nundertaken any efforts to conclude prosecution of the ’100\napplication during the 546-day period between the filing\nof the RCE on February 22, 2011, and the EPO’s notifica-\ntion of the Sandoz Opposition on August 21, 2012.\nJ.A. 552–53; Appellant Br. 7 n.3; Appellee Br. 16–17.\n In addition, the precise question addressed in Gilead\nwas not the precise question under review in this case. In\nGilead, the “precise question” reviewed by the court in its\nChevron analysis was “whether a failure to engage in\nreasonable efforts requires conduct that actually causes\ndelay.” Gilead, 778 F.3d at 1349. That question fell\nwithin the USPTO’s gap-filling authority to determine\nwhat constitutes “reasonable efforts.” Id.; 35 U.S.C.\n§ 154(b)(2)(C)(iii). The precise question in this case is\nwhether the USPTO may reduce PTA by a period that\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 13\n\n\n\nexceeds the “time during which the applicant failed to\nengage in reasonable efforts to conclude prosecution.” 35\nU.S.C. § 154(b)(2)(C)(i). Gilead did not decide that ques-\ntion.\n Because Gilead involved different facts and a different\nlegal question, Gilead is not controlling in this action. Cf.\nFed. Election Comm’n v. Wis. Right To Life, Inc., 551 U.S.\n449, 456, 467 (2007) (Roberts, C.J., writing in non-\nmajority section of the opinion of the Court) (noting that\nupholding a facial challenge to a statute does not foreclose\nall future challenges to the statute in the particular\ncircumstances of another case). The district court erred,\ntherefore, when it granted the USPTO summary judg-\nment on the basis of this court’s decision in Gilead. And\nbecause, as we next conclude, the statute plainly resolves\nthe question at issue here against the USPTO, we reverse\nthe district court’s grant of summary judgment.\n III. Chevron Framework\n A. The PTA Statute Answers the Precise Question\n This case presents a question of statutory interpreta-\ntion by an agency to which we apply the Chevron frame-\nwork. The first step of our legal analysis, therefore, is to\n“ask whether the statute’s plain terms ‘directly addres[s]\nthe precise question at issue.’” Nat’l Cable & Telecomms.\nAss’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005)\n(quoting Chevron, 467 U.S. at 843). The precise question\nat issue in this case is whether the USPTO may reduce\nPTA by a period that exceeds the “time during which the\napplicant failed to engage in reasonable efforts to con-\nclude prosecution.” 35 U.S.C. § 154(b)(2)(C)(i).\n We begin by looking at the plain language of the PTA\nstatute. See United States v. Hohri, 482 U.S. 64, 69\n(1987) (“[T]he ‘starting point in every case involving\nconstruction of a statute is the language itself.’” (quoting\nKelly v. Robinson, 479 U.S. 36, 43 (1986))); Suprema, Inc.\n\f14 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nv. Int’l Trade Comm’n, 796 F.3d 1338, 1346 (Fed. Cir.\n2015) (en banc) (“Chevron’s framework begins with the\nlanguage of the statute.”). “Absent a clearly expressed\nlegislative intention to the contrary, [the statute’s plain]\nlanguage must ordinarily be regarded as conclusive.”\nConsumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,\n447 U.S. 102, 108 (1980).\n In this case, the pertinent language of the PTA stat-\nute is plain, clear, and conclusive. “Congress has supplied\na clear and unambiguous answer to the interpretive\nquestion at hand.” Pereira v. Sessions, 138 S. Ct. 2105,\n2113 (2018); see also Chevron, 467 U.S. at 842–43 (“If the\nintent of Congress is clear, that is the end of the matter;\nfor the court, as well as the agency, must give effect to the\nunambiguously expressed intent of Congress.”) On the\nbasis of the plain language of the statute, we hold that the\nUSPTO may not count as applicant delay a period of time\nduring which there was no action that the applicant could\ntake to conclude prosecution of the patent. Doing so\nwould exceed the time during which the applicant failed\nto engage in reasonable efforts.\n The PTA statute provides in pertinent part:\n (b) Adjustment of patent term.—\n ....\n (2) Limitations.—\n ....\n (C) Reduction of period of adjustment.—\n (i) The period of adjustment of the term of a patent\n under paragraph (1) shall be reduced by a period\n equal to the period of time during which the ap-\n plicant failed to engage in reasonable efforts to\n conclude prosecution of the application.\n35 U.S.C. § 154(b)(2)(C)(i) (emphases added).\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 15\n\n\n\n A plain reading of the statute shows that Congress\nimposed two limitations on the amount of time that the\nUSPTO can use as applicant delay for purposes of reduc-\ning PTA. First, the statute expressly requires that any\nreduction to PTA be equal to the period of time during\nwhich an applicant fails to engage in reasonable efforts.\nSecond, the statute expressly ties reduction of the PTA to\nthe specific time period during which the applicant\nfailed to engage in reasonable efforts.\n The PTA statute requires that any PTA reduction be\nequal to the period of time during which an applicant\nfails to engage in reasonable efforts. The word “equal” is\nwidely understood to mean “the same in amount, number,\nor size.” E.g., Equal, Cambridge Dictionary of American\nEnglish 287 (2000). Stated differently, PTA reduction\ncannot exceed the period of time during which an appli-\ncant failed to engage in reasonable efforts. Thus, if there\nis no period of time during which the applicant could\nhave but failed to engage in reasonable efforts, there can\nbe no reduction to the PTA. The word “during” is similar-\nly understood to mean “from the beginning to the end of (a\nparticular period)” or “at some time between the begin-\nning and the end of (a period).” E.g., During, Cambridge\nDictionary of American English 267 (2000). The preced-\ning “shall” “generally imposes a nondiscretionary duty.”\nSAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1354 (2018); see\nalso Kingdomware Techs., Inc. v. United States, 136 S. Ct.\n1969, 1977 (2016) (discussing that “shall” is mandatory\nand connotes a requirement). Thus, the statutory period\nof PTA reduction must be the same number of days as the\nperiod from the beginning to the end of the applicant’s\nfailure to engage in reasonable efforts to conclude prose-\ncution. PTA cannot be reduced by a period of time during\nwhich there is no identifiable effort in which the applicant\ncould have engaged to conclude prosecution because such\ntime would not be “equal to” and would instead exceed the\ntime during which an applicant failed to engage in rea-\n\f16 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nsonable efforts. This is consistent with the PTA exten-\nsions of “1 day for each day” granted for the A, B, and C\ntypes of USPTO delays.\n The “equal to” limitation ensures that applicants will\nbe charged the full amount of time corresponding to their\nown delay. See Gilead, 778 F.3d at 1348–49 (“[I]t appears\nCongress’s primary intent was to penalize applicant\nconduct as opposed to the results of such conduct.”). By\nthe same token, the “equal to” limitation protects appli-\ncants by ensuring that PTA can only be reduced by peri-\nods of time during which the applicant failed to engage in\nsuch efforts. See id. at 1344 (“[B]ecause the duration of a\npatent is no longer solely predicated on its date of issu-\nance, delays in the patent examination process decrease\nthe length of an applicant’s patent term.”); H.R. Rep. No.\n106-287, pt. 1, at 50 (1999) (“[N]o patent applicant dili-\ngently seeking to obtain a patent will receive a term of\nless than the 17 years as provided under the pre-GATT\nstandard.” (footnote omitted)). The expressed legislative\nintent is consistent with the plain language of the statute.\nThe USPTO cannot, therefore, count as applicant delay\nany period of time during which there were no efforts in\nwhich the applicant could have engaged to conclude\nprosecution of the patent. See SAS Inst., 138 S. Ct. at\n1355 (“Where a statute’s language carries a plain mean-\ning, the duty of an administrative agency is to follow its\ncommands as written, not to supplant those commands\nwith others it may prefer.”).\n A period of time including no identifiable efforts that\ncould have been undertaken cannot be “equal to” the\nperiod of failure to undertake reasonable efforts under the\nterms of the statute. To conclude otherwise renders the\nPTA statute’s “reasonable efforts” language superfluous.\nThis understanding of the plain language makes practical\nsense and is consistent with the legislative history be-\ncause Congress intended the PTA statute to discourage\ndilatory conduct by patent applicants and reward appli-\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 17\n\n\n\ncants that take action to conclude prosecution of the\npatent. See H.R. Rep. 106-287, at 49–50.\nB. The USPTO’s Assessment of Applicant Delay is Incon-\n sistent with the PTA Statute\n As shown in the figure below, the USPTO reduced the\nPTA by 646 days due to applicant delay. Supernus con-\ncedes that it failed to engage in “reasonable efforts” for\nthe last 100 days of the 646-day period. It states, howev-\ner, that there was nothing it could have done during the\nperiod of time from the filing of the RCE and original IDS\nto the EPO communication.\n\n\n\n\nAppellant Br. 8 (reproduced and modified).\n We agree with Supernus that there were no efforts\nthat it could have taken in the period of time during the\npreceding 546 days. The record is silent as to what Su-\npernus could have done to conclude prosecution during\nthe 546-day time period, beginning with the filing of the\nRCE/IDS on February 22, 2011, and ending on the date of\nthe EPO notification, August 21, 2012. Nor does the\nUSPTO contend that Supernus could have undertaken\nany “reasonable efforts” during the 546-day time period to\nconclude prosecution. To the contrary, the facts indicate\n\f18 SUPERNUS PHARMACEUTICALS, INC v. IANCU\n\n\n\nthat there was no action Supernus could have taken to\nadvance prosecution of the patent during the 546-day\nperiod, particularly because the EPO notice of opposition\ndid not yet exist. Here, the USPTO’s interpretation of the\nstatute would unfairly penalize applicants, fail to incen-\ntivize applicants not to delay, and fail to protect appli-\ncants’ full patent terms. The USPTO’s additional 546-day\nassessment as applicant delay is contrary to the plain\nmeaning of the statute because the 646-day total reduc-\ntion is not equal to a period of time during which\nSupernus failed to engage in reasonable efforts to con-\nclude prosecution of the ’897 patent. The USPTO’s inter-\npretation of the PTA statute applied in these\ncircumstances exceeds the statutory limitations for PTA\nreduction and therefore, the USPTO actions are “in excess\nof statutory . . . authority.” See 5 U.S.C. § 706(2)(C).\n This decision is consistent with the intent of Con-\ngress. Congress chose to speak plainly to the precise issue\nby setting limitations on the period of PTA reduction. See\nCity of Arlington. v. FCC, 569 U.S. 290, 296 (2013) (“Con-\ngress knows to speak in plain terms when it wishes to\ncircumscribe, and in capacious terms when it wishes to\nenlarge, agency discretion.”). Congress intended that the\nPTA statute not adversely impact applicants like Super-\nnus who could have done nothing to advance prosecution.\nTo be sure, Congress expressly granted the USPTO au-\nthority to determine what constitutes reasonable efforts,\nbut the USPTO lacks any authority to exceed the statuto-\nry “equal to” limitation by including the 546-day time\nperiod during which it does not contend that Supernus\nfailed to undertake reasonable efforts to conclude prosecu-\ntion.\n CONCLUSION\n The USPTO argues that 37 C.F.R. §§ 1.704(c)(8) and\n(d)(1) are reasonable exercises of its rulemaking authori-\nty. For the reasons discussed above, neither regulation\n\fSUPERNUS PHARMACEUTICALS, INC v. IANCU 19\n\n\n\nempowers the USPTO to exceed its statutory authority as\nit has done in these circumstances by assessing a PTA\nreduction that exceeds the statutory limitations. We\ndetermine that the PTA statute addresses the precise\nquestion at issue, so our inquiry ends at step one of the\nChevron analysis. “Because the language of the statute\nitself controls this case and sets an unambiguous rule,”\nwe need not go further in our analysis of the specific\nregulations asserted in this appeal. Wyeth v. Kappos, 591\nF.3d 1364, 1372 (Fed. Cir. 2010) (citing Smith v. City of\nJackson, 544 U.S. 228, 267 (2005) (Scalia, J., concurring\nin part and concurring in the judgment) (“Of course, it is\nelementary that ‘no deference is due to agency interpreta-\ntions at odds with the plain language of the statute it-\nself.’”)). Any reduction to PTA shall be “equal to the\nperiod of time during which the applicant fail[s] to engage\nin reasonable efforts to conclude prosecution of the appli-\ncation.” 35 U.S.C. § 154(b)(2)(C)(i).\n We find the USPTO’s PTA reduction to be incon-\nsistent with the PTA statute and, as a result, we accord\nno deference to the USPTO’s application of the regula-\ntions at issue in these circumstances. See Wyeth, 591\nF.3d at 1372. We have considered the USTPO’s remain-\ning arguments and find them unpersuasive. We conclude\nthat the district court erred in granting summary judg-\nment in favor of the USPTO. Based on the foregoing\nreasoning, we reverse the district court’s summary judg-\nment order and remand for further proceedings consistent\nwith this opinion.\n REVERSED AND REMANDED\n COSTS\n No costs.\n[END_CASE]",
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4,584,269 | Mark A. BARRY, Plaintiff-Appellee v. MEDTRONIC, INC., Defendant-Appellant | Barry v. Medtronic, Inc. | 2019-01-24 | 2017-2463 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Prost, Moore, Taranto", "parties": "", "opinions": [{"author": "TARANTO, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n MARK A. BARRY,\n Plaintiff-Appellee\n\n v.\n\n MEDTRONIC, INC.,\n Defendant-Appellant\n ______________________\n\n 2017-2463\n ______________________\n\n Appeal from the United States District Court for the\nEastern District of Texas in No. 1:14-cv-00104-RC, Chief\nJudge Ron Clark.\n ______________________\n\n Decided: January 24, 2019\n ______________________\n\n DAVID CLAY HOLLOWAY, Kilpatrick Townsend &\nStockton LLP, Atlanta, GA, argued for plaintiff-appellee.\nAlso represented by COURTNEY DABBIERE; ADAM HOWARD\nCHARNES, Dallas, TX; ERWIN CENA, San Diego, CA; DARIO\nALEXANDER MACHLEIDT, Seattle, WA; SEAN PAUL\nDEBRUINE, Law Office of Sean DeBruine, Menlo Park,\nCA.\n\n SETH P. WAXMAN, Wilmer Cutler Pickering Hale and\nDorr LLP, Washington, DC, argued for defendant-\nappellant. Also represented by BRITTANY BLUEITT AMADI;\nMARK CHRISTOPHER FLEMING, Boston, MA; MARY-OLGA\n\n2 BARRY v. MEDTRONIC, INC.\n\n\n\n\nLOVETT, Greenberg Traurig LLP, Houston, TX; JULIE\nPAMELA BOOKBINDER, SCOTT JOSEPH BORNSTEIN, ALLAN A.\nKASSENOFF, RICHARD CHARLES PETTUS, New York, NY.\n ______________________\n\n Before PROST, Chief Judge, MOORE and TARANTO,\n Circuit Judges.\n Opinion for the court filed by Circuit Judge TARANTO.\n Opinion dissenting in part filed by Chief Judge PROST.\nTARANTO, Circuit Judge.\n Dr. Mark Barry brought this action against Medtron-\nic, Inc., alleging that Medtronic induced surgeons to\ninfringe U.S. Patent Nos. 7,670,358 and 8,361,121, which\nDr. Barry owns and which name him as the sole inventor.\nThe jury found infringement of method claims 4 and 5 of\nthe ’358 patent and system claims 2, 3, and 4 of the ’121\npatent, rejected Medtronic’s several invalidity defenses,\nand awarded damages. In post-trial rulings on the jury\nissues, Barry v. Medtronic, Inc., 230 F. Supp. 3d 630 (E.D.\nTex. 2017) (Barry), the district court upheld the verdict as\nrelevant here—rejecting challenges as to induced in-\nfringement and associated damages for domestic conduct,\nid. at 640–47, 650–51, invalidity of the asserted ’358\npatent claims under the public-use and on-sale bars, id. at\n653–59, and invalidity of all asserted claims due to anoth-\ner’s prior invention, id. at 659–63. The district court then\nrejected Medtronic’s inequitable-conduct challenge, Barry\nv. Medtronic, Inc., 245 F. Supp. 3d 793, 823 (E.D. Tex.\n2017) (Inequitable Conduct Op.), and, in a ruling not\nseparately challenged on appeal, enhanced damages by\ntwenty percent while denying attorney’s fees to Dr. Barry,\nBarry v. Medtronic, Inc., 250 F. Supp. 3d 107, 111, 119\n(E.D. Tex. 2017) (Enhancement Op.). Medtronic appeals\non numerous grounds, principally concerning the public-\nuse and on-sale statutory bars, but also concerning prior\n\nBARRY v. MEDTRONIC, INC. 3\n\n\n\ninvention, inequitable conduct, and induced infringement\nand associated damages. We affirm.\n I\n A\n Both patents at issue are entitled “System and Meth-\nod for Aligning Vertebrae in the Amelioration of Aberrant\nSpinal Column Deviation Conditions.” The patents claim\nmethods and systems for correcting spinal column anoma-\nlies, such as those due to scoliosis, by applying force to\nmultiple vertebrae at once. ’358 patent, col. 2, line 63,\nthrough col. 3, line 6; ’121 patent, col. 3, line 53, through\ncol. 4, line 2. The ’358 issued in 2010 from an application\nthat Dr. Barry filed on December 30, 2004. The ’121\npatent issued in 2013 from an application—a continuation\nof an August 2005 application that was a continuation-in-\npart of the December 30, 2004 application—that Dr.\nBarry filed in 2010.\n The asserted claims of the ’358 patent are method\nclaims 4 and 5. They depend ultimately on independent\nclaim 1, which reads:\n 1. A method for aligning vertebrae in the ame-\n lioration of aberrant spinal column deviation con-\n ditions comprising the steps of:\n selecting a first set of pedicle screws, said pedi-\n cle screws each having a threaded shank seg-\n ment and a head segment;\n selecting a first pedicle screw cluster derotation\n tool, said first pedicle screw cluster derotation\n tool having first handle means and a first group\n of pedicle screw engagement members which\n are mechanically linked with said first handle\n means, each pedicle screw engagement member\n being configured for engaging with, and trans-\n mitting manipulative forces applied to said first\n\n4 BARRY v. MEDTRONIC, INC.\n\n\n\n\n handle means to said head segment of each\n pedicle screw of said first set of pedicle screws,\n implanting each pedicle screw in a pedicle re-\n gion of each of a first group of multiple verte-\n brae of a spinal column which exhibits an\n aberrant spinal column deviation condition;\n engaging each pedicle screw engagement mem-\n ber respectively with said head segment of each\n pedicle screw of said first set of pedicle screws;\n and\n applying manipulative force to said first handle\n means in a manner for simultaneously engag-\n ing said first group of pedicle screw engage-\n ment members and first set of pedicle screws\n and thereby in a single motion simultaneously\n rotating said vertebrae of said first group of\n multiple vertebrae in which said pedicle screws\n are implanted to achieve an amelioration of an\n aberrant spinal column deviation condition;\n selecting a first length of a spinal rod member;\n wherein one or more of said pedicle screws of\n said first set of pedicle screws each includes:\n a spinal rod conduit formed substantially\n transverse of the length of said pedicle screw\n and sized and shaped for receiving passage\n of said spinal rod member therethrough; and\n spinal rod engagement means for securing\n said pedicle screw and said spinal rod mem-\n ber, when extending through said spinal rod\n conduit, in a substantially fixed relative po-\n sition and orientation;\n extending said first length of said spinal rod\n member through said spinal rod conduits of one\n\nBARRY v. MEDTRONIC, INC. 5\n\n\n\n or more of said pedicle screws of said first set of\n pedicle screws; and\n after applying said manipulative force to said\n first handle means, actuating said spinal rod\n engagement means to secure said vertebrae in\n their respective and relative positions and ori-\n entations as achieved through application of\n said manipulative force thereto.\n’358 patent, col. 6, lines 7–56. Claim 2, which depends on\nclaim 1, adds steps requiring a second set of pedicle\nscrews and a second derotation tool with a second group of\nengagement members and a second “handle means.” Id.,\ncol. 6, line 57, through col. 7, line 15. Claim 3, which\ndepends on claim 2, adds steps requiring a second spinal\nrod. Id., col. 7, line 16, through col. 8, line 11. Claim 4,\nwhich depends on claim 3, adds that the steps of applying\n“manipulative force” to the first and second handle means\n“are carried out substantially simultaneously to coopera-\ntively achieve an amelioration of an aberrant spinal\ncolumn deviation condition.” Id., col. 8, lines 12–17.\nClaim 5 adds the same requirement to claim 2 (on which\nit depends). Id., col. 8, lines 18–23.\n The asserted claims of the ’121 patent are system\nclaims 2–4. Claim 2, an independent claim, reads:\n 2. A system for aligning vertebrae in the amelio-\n ration of aberrant spinal column deviation condi-\n tions comprising:\n a first set of pedicle screws, each pedicle screw\n having a threaded shank segment and a head\n segment; and\n a first pedicle screw cluster derotation tool, said\n first pedicle screw cluster derotation tool hav-\n ing a first handle means for facilitating simul-\n taneous application of manipulative forces to\n\n6 BARRY v. MEDTRONIC, INC.\n\n\n\n\n said first set of pedicle screws and a first group\n of three or more pedicle screw engagement\n members which are mechanically linked with\n said first handle means, said first handle\n means having a handle linked to each pedicle\n screw engagement member of the first group of\n three or more pedicle screw engagement mem-\n bers and a linking member to join together the\n handles linked to the pedicle screw engagement\n members, wherein the handle means is config-\n ured to move simultaneously each pedicle screw\n engagement member; wherein each pedicle\n screw engagement member is configured to en-\n gage respectively with said head segment of\n each pedicle screw of said first set of pedicle\n screws; and wherein each pedicle screw en-\n gagement member is configured to transmit\n manipulative forces applied to said first handle\n means to said head segment of each pedicle\n screw of said first set of pedicle screws;\n a second set of pedicle screws, each pedicle\n screw having a threaded shank segment and a\n head segment;\n a second pedicle screw cluster derotation tool,\n said second pedicle screw cluster derotation tool\n having a second handle means for facilitating\n simultaneous application of manipulative forces\n to said second set of pedicle screws and a sec-\n ond group of three or more pedicle screw en-\n gagement members which are mechanically\n linked with said second handle means, said\n second handle means having a handle linked to\n each pedicle screw engagement member of the\n second group of three or more pedicle screw en-\n gagement members and a handle linking mem-\n ber to join together the handles linked to the\n\nBARRY v. MEDTRONIC, INC. 7\n\n\n\n pedicle screw engagement members, wherein\n the handle means is configured to move simul-\n taneously each pedicle screw engagement\n member; wherein each pedicle screw engage-\n ment member is configured to engage respec-\n tively with said head segment of each pedicle\n screw of said second set of pedicle screws; and\n wherein each pedicle screw engagement mem-\n ber is configured to transmit manipulative forc-\n es applied to said second handle means to said\n head segment of each pedicle screw of said sec-\n ond set of pedicle screws;\n a cross-linking member that links the first\n handle means to the second handle means.\n’121 patent, col. 7, line 57, through col. 8, line 45. The\nparties have highlighted the “cross-linking member”\nelement in identifying the advance of the ’121 patent\nclaims over those of the ’358 patent. Claim 3, which\ndepends on claim 2, and claim 4, which depends on claim\n3, add requirements that have had no material role in the\narguments made to this court. Id., col. 8, lines 46–58.\n B\n The following facts form the core of the background\nneeded to understand the issues before us. Dr. Barry\nbegan working in late 2002 or early 2003 on trying to link\nderotation components (which grab screws in vertebrae to\nmove the vertebrae) of devices for ameliorating spinal\ncolumn deviation conditions. During 2003 he worked\nwith a sales representative from the DePuy medical-\ndevice company, Mr. Pfefferkorn, to adjust standard\nDePuy tools for Dr. Barry’s purposes and in accordance\nwith Dr. Barry’s ideas. Dr. Barry also spoke about his\nideas with representatives from another company, Spine-\nVision. By July 2003, Dr. Barry had a tool that allowed\n\n8 BARRY v. MEDTRONIC, INC.\n\n\n\n\nhim to link the screw-grabbing, vertebrae-moving\nwrenches together.\n Dr. Barry used that tool in three surgeries—on Au-\ngust 4, August 5, and October 14. Dr. Barry testified,\nwithout contradiction by any evidence the jury had to\ncredit, that the three surgeries represent the three most\ncommon types of scoliosis-caused spinal deviation condi-\ntions that surgeons typically see. Between August 2003\nand January 2004, the patients in those surgeries re-\nturned to Dr. Barry several times for follow-up appoint-\nments. During the follow-up appointments, Dr. Barry\nviewed x-rays of the patients’ spines, after they had been\nable to stand up and walk following the three-month\nacute phase of recovery, to determine if the curvature\nconditions had been successfully ameliorated by the\nsurgery.\n According to Dr. Barry’s testimony at trial, it was only\nin January 2004, after the three-month follow-up for the\nOctober 14, 2003 surgery, that he felt confident that his\ninvention functioned for its intended purpose and was\nready to publicize it in a professional forum. J.A. 1161–\n65, 1195–96. He prepared an abstract summarizing the\ndevelopment of his methods and submitted it, by Febru-\nary 1, 2004, for inclusion in the materials to be presented\nat a July 2004 International Meeting of Advanced Spinal\nTechniques—the selection committee for which accepted\nit in April. On December 30, 2004, he filed the applica-\ntion for what issued as the ’358 patent, making December\n30, 2003, the critical date for that patent for purposes of\nthe public-use and on-sale bar issues under 35 U.S.C.\n§ 102(b) (2002). 1\n\n\n\n 1 We refer throughout this opinion to the Title 35\nprovisions in effect before the changes made by the\nLeahy-Smith America Invents Act (AIA), Pub. L. No. 112-\n\nBARRY v. MEDTRONIC, INC. 9\n\n\n\n Around the same time, Dr. Lawrence Lenke, a sur-\ngeon who works with Medtronic, was also working on a\nspinal derotation project. His work began in 2002. Med-\ntronic contends that Dr. Lenke, through that work, was a\nprior inventor and that Dr. Barry’s patents are therefore\ninvalid under 35 U.S.C. § 102(g).\n By 2006, Medtronic introduced its Vertebral Column\nManipulation (VCM) kit, which is used in conjunction\nwith Medtronic’s CD Horizon Legacy and Solera spinal-\nsurgery systems. Dr. Barry alleges that surgeons’ use of\nthat combination infringes the asserted claims of the two\npatents at issue and that Medtronic has induced such\ninfringement through its extensive training materials and\ninstructions relating to its VCM kit. As to the latter,\ninstructions appear on the lid of each kit. Medtronic\nemployees have trained surgeons in how to use the VCM\nkit. Medtronic has included instructions for using the\nVCM kit in surgical guides, which Dr. Barry’s expert, Dr.\nWalid Yassir, testified Medtronic “put . . . out all of the\ntime.” J.A. 1782. And Dr. Lenke testified that he used\nthe VCM kit when performing derotations, even after\n2010, the year the ’358 patent issued.\n In this case, the jury found for Dr. Barry, and specifi-\ncally did so on the key issues contested by Medtronic in\nthis appeal—involving whether Dr. Barry’s ’358 invention\nwas in public use or on sale before December 30, 2003;\nwhether Dr. Lenke was a prior inventor for both patents;\nand whether, and to what extent, Medtronic induced\ninfringement. As relevant here, the jury awarded Dr.\nBarry $15,095,970 for domestic infringement of the ’358\npatent and $2,625,210 for domestic infringement of the\n\n\n\n\n29, 125 Stat. 284 (2011), took effect. As the parties agree,\nthe pre-AIA provisions apply here.\n\n10 BARRY v. MEDTRONIC, INC.\n\n\n\n\n’121 patent. J.A. 135. 2 The district court denied Med-\ntronic’s post-trial challenges regarding induced infringe-\nment, Barry, 230 F. Supp. 3d at 640–47; domestic in-\ninfringement damages, id. at 650–51; invalidity under\n§ 102(b), id. at 653–59; and invalidity under § 102(g), id.\nat 659–63. The district court also rejected Medtronic’s\ncharge of inequitable conduct by Dr. Barry in his interac-\ntions with the Patent and Trademark Office, based on an\nadmitted mistake in identifying Figure 6 in both patents,\nfinding absent the intent required for unenforceability on\nthat ground in a case like this. Inequitable Conduct Op.\nat 797–98.\n On appeal, Medtronic raises issues involving the § 102\nstatutory bars as to the ’358 patent, Br. of Appellant at\n26–41; inequitable conduct as to both patents, id. at 44–\n48; prior invention as to both patents, id. at 48–58; and\ninduced infringement and associated damages as to both\npatents, id. at 58–67 (infringement), 67–69 (damages).\nWe have jurisdiction under 28 U.S.C. § 1295(a)(1).\n II\n We review the denial of judgment as a matter of law\nde novo, and we review the denial of a new trial as well as\nrulings on jury instructions for abuse of discretion. i4i\nLtd. P’ship v. Microsoft Corp., 598 F.3d 831, 841 (Fed. Cir.\n2010) (following Fifth Circuit law), aff’d on other issues,\n564 U.S. 91 (2011). We review evidentiary rulings for an\nabuse of discretion. Summit 6, LLC v. Samsung Elecs.\n\n\n\n 2 The district court eliminated non-domestic in-\nfringement and damages from the judgment, a ruling not\non appeal here. Barry, 230 F. Supp. 3d at 647–49. The\ncourt also enhanced the domestic damages by twenty\npercent (while denying Dr. Barry attorney’s fees), a ruling\nnot on appeal here. Enhancement Op. at 111, 119; see\nJ.A. 309 (final judgment).\n\nBARRY v. MEDTRONIC, INC. 11\n\n\n\nCo., 802 F.3d 1283, 1294–95 (Fed. Cir. 2015) (following\nFifth Circuit law).\n A\n We begin with Medtronic’s argument for judgment as\na matter of law that the ’358 patent’s asserted claims are\ninvalid under § 102(b)’s statutory bar on patenting of\ninventions in “public use” in the United States more than\none year before the application for the patent was filed.\nHere, the application was filed on December 30, 2004, so\nthe critical date for an invalidating domestic public use is\nDecember 30, 2003. We reject Medtronic’s challenge.\n “The public use bar is triggered where, before the crit-\nical date, the invention is in public use and ready for\npatenting.” Polara Eng’g Inc v. Campbell Co., 894 F.3d\n1339, 1348 (Fed. Cir. 2018) (emphasis added) (internal\nquotation marks omitted); see also Pfaff v. Wells Elecs.,\nInc., 525 U.S. 55, 67 (1998); Invitrogen Corp. v. Biocrest\nMfg., L.P., 424 F.3d 1374, 1379 (Fed. Cir. 2005). “[T]he\ndetermination of whether a patent is invalid for public\nuse is a question of law that we review de novo,” but “the\ndisputed facts found to support that determination are\nreviewed for substantial evidence.” Polara, 894 F.3d at\n1348; Manville Sales Corp. v. Paramount Sys., Inc., 917\nF.2d 544, 549 (Fed. Cir. 1990). “We treat the jury’s ver-\ndict of no invalidating public use as a resolution of all\ngenuinely disputed underlying factual issues in favor of\nthe verdict winner”—here, Dr. Barry. Polara, 894 F.3d at\n1348 (internal quotation marks omitted).\n We discuss “ready for patenting” first, then “in public\nuse.” We conclude that Medtronic’s § 102(b) public-use\nchallenge fails on two grounds, which are substantively\nrelated. First, the invention was not ready for patenting\nbefore the critical date. Second, there was no public use\nexcept for an experimental use, and “[p]roof of experi-\nmental use serves as a negation of the statutory bars,”\nPolara, 894 F.3d at 1348 (internal quotation marks omit-\n\n12 BARRY v. MEDTRONIC, INC.\n\n\n\n\nted); see New Railhead Mfg., L.L.C. v. Vermeer Mfg. Co.,\n298 F.3d 1290, 1297–98 (Fed. Cir. 2002); EZ Dock, Inc. v.\nSchafer Sys., Inc., 276 F.3d 1347, 1352 (Fed. Cir. 2002).\n We place our discussion of experimental use within\nour discussion of the “public use” element. This place-\nment fits the facts that commercial exploitation may\nsometimes satisfy that element, Invitrogen, 424 F.3d at\n1380, and “[t]he law has long recognized the distinction\nbetween inventions put to experimental use and products\nsold commercially,” Pfaff, 525 U.S. at 64; id. at 64–65\n(discussing Elizabeth v. American Nicholson Pavement\nCo., 97 U.S. 126, 133–37 (1877)). But this placement is\nnot inevitable: we have observed that “evidence of exper-\nimental use may negate either the ‘ready for patenting’ or\n‘public use’ prong [of the public-use-bar standard]” and\n“recogniz[ed] an overlap of the experimental use negation\nand the ready for patenting standard.” Invitrogen, 424\nF.3d at 1379–80 (citing EZ Dock, 276 F.3d at 1352). The\noverlap is reflected in the fact that the timing of\nknowledge that the invention will “work for its intended\npurpose” is important to both experimental use and\nreadiness for patenting. Polara, 894 F.3d at 1348 (de-\nscribing such an inquiry for both the “ready for patenting”\nand “experimental use” standards); see EZ Dock, 276 F.3d\nat 1356–57. In any event, whatever the best doctrinal\norganization, experimental use negates invalidity under\nthe public use bar. We discuss both readiness for patent-\ning and experimental use because they are related and\nbecause the dissent, agreeing with Medtronic about the\nfirst, addresses the second to complete its reasoning to\nsupport its conclusion of invalidity under § 102(b). 3\n\n\n\n 3 The dissent proposes several changes to the legal\nstandards stated in governing case law, such as a change\nto impose a (high) burden of persuasion on the patent\nowner to establish experimental use. Dissent at 14–19.\n\nBARRY v. MEDTRONIC, INC. 13\n\n\n\n 1\n The jury could reasonably find facts that support re-\njection of Medtronic’s contention that Dr. Barry’s ’358\ninvention was ready for patenting before December 30,\n2003. Medtronic’s contention required it to prove that,\nbefore that date, the method was “‘shown or known to\nwork for its intended purpose.’” Polara, 894 F.3d at 1348\n(quoting Helsinn Healthcare S.A. v. Teva Pharm. USA,\nInc., 855 F.3d 1356, 1371 (Fed. Cir. 2017), cert. granted on\na different issue, 138 S. Ct 2678 (2018)); see Electromotive\nDiv. of Gen. Motors Corp. v. Transp. System Div. of Gen.\nElec. Co., 417 F.3d 1203, 1211 (Fed. Cir. 2005); Manville,\n917 F.2d at 550–51. But there is substantial evidence\nthat Dr. Barry’s invention was not ready for patenting\nuntil January 2004 because the final follow-up from the\nOctober surgery was reasonably needed for the determi-\nnation that the invention worked for its intended purpose.\n This court has long held that “the Supreme Court’s\n‘ready for patenting test’” from Pfaff, involving the on-sale\nbar, also “applies to the public use bar under § 102(b).”\nInvitrogen, 424 F.3d at 1379. Medtronic accepts in this\nappeal that, to show readiness for patenting, it had to\nshow (a) a reduction to practice or (b) drawings or descrip-\ntions enabling an ordinarily skilled artisan to practice the\ninvention. Pfaff, 525 U.S. at 67–68. 4 Here, Medtronic’s\n\n\nMedtronic has not argued for such changes. We follow\nexisting case law. We also note that we see nothing in the\ndissent’s proposed changes that would alter our § 102(b)\nresult—at the least on the sufficient ground that Med-\ntronic failed to establish readiness for patenting.\n 4 The dissent states that readiness for patenting\nmight be shown in some other way. Dissent at 7–9. We\nhave no such alternative before us. Reduction to practice\nand enabling drawings or descriptions are the sole bases\non which Medtronic argues for readiness for patenting.\n\n14 BARRY v. MEDTRONIC, INC.\n\n\n\n\nability to support judgment as a matter of law in its favor\nunder that test depends on its succeeding under the\nreduction-to-practice alternative. 5\n Under the test for a reduction to practice, the chal-\nlenger must show that “the inventor (1) constructed an\nembodiment or performed a process that met all the\nlimitations and (2) determined that the invention would\nwork for its intended purpose.” In re Omeprazole Patent\nLitig., 536 F.3d 1361, 1373 (Fed. Cir. 2008) (internal\nquotations omitted). What testing was in order to deter-\nmine whether an invention would work for its intended\npurpose is one of the subsidiary fact questions underlying\na determination of whether an invention was in public\nuse. See Z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340,\n1352 (Fed. Cir. 2007) (“Because the necessity and suffi-\nciency of such testing [of an invention to determine if it\nwill work for its intended purpose] are factual issues,\n\n\n\nBr. of Appellant at 29–34. The jury instructions, not\nchallenged here, are similarly limited. J.A. 158–61.\n 5 On appeal, Medtronic also points to drawings pre-\npared in November 30, 2003, by a device company, Spine-\nVision, based on conversations with Dr. Barry, and argues\nthat the drawings show that “prior to the critical date the\ninventor [Dr. Barry] had prepared drawings or other\ndescriptions of the invention that were sufficiently specific\nto enable a person skilled in the art to practice the inven-\ntion.” Pfaff, 525 U.S. at 67–68 (footnote omitted). But\nMedtronic identifies no expert testimony making the\nnecessary enablement showing. The jury could reasona-\nbly find that Medtronic failed to prove that descriptions\nby Dr. Barry (leading to the SpineVision-prepared draw-\nings of devices), or even the drawings, enabled a person of\nordinary skill in the art to practice the surgical-procedure\nclaims. We therefore limit our discussion in text to Med-\ntronic’s argument based on reduction to practice.\n\nBARRY v. MEDTRONIC, INC. 15\n\n\n\nsubstantial evidence . . . will suffice to support the jury’s\nverdict.”); Slip Track Sys., Inc. v. Metal-Lite, Inc., 304\nF.3d 1256, 1268 (Fed. Cir. 2002) (“[W]e leave to the fact\nfinder the determination of whether testing was necessary\n. . . or whether the mere construction of the First Proto-\ntype, in and of itself, was enough to demonstrate to one of\nskill in the art that the invention would work for its\nintended purpose without any testing.”); Seal-Flex, Inc. v.\nAthletic Track & Court Const., 98 F.3d 1318, 1324 (Fed.\nCir. 1996) (“The trier of fact must determine whether the\ninvention was completed and known to work for its in-\ntended purpose . . . .”). 6\n\n\n\n 6 Pfaff supports the “intended purpose” standard in\nseveral ways. In a footnote, see 525 U.S. at 57 n.2, Pfaff\nquotes the statement in Corona Cord Tire Co. v. Dovan\nChemical Corp., 276 U.S. 358, 383 (1928), that “[a] pro-\ncess is reduced to practice when it is successfully per-\nformed.” What “successfully” means in Corona is\nachieving the purpose of accelerating the curing of rubber,\nas detailed extensively in Corona and summarized just\nbefore the “successfully performed” language—“It was the\nfact that it would work with great activity as an accelera-\ntor that was the discovery, and that was all, and the\nnecessary reduction to use is shown by instances making\nclear that it did so work, and was a completed discovery,”\nid. at 382–83 (emphasis added)—a summary that the\nCourt quoted in Pfaff, 525 U.S. at 66 n.12. The “intended\npurpose” standard is also reflected in Pfaff’s reliance, in\nits rationale leading to the “ready for patenting” standard,\non the statement in Elizabeth that a public use does not\ninclude an inventor’s “bona fide effort to bring his inven-\ntion to perfection, or to ascertain whether it will answer\nthe purpose intended,” Elizabeth, 97 U.S. at 137 (emphasis\nadded), which was quoted in Pfaff, 525 U.S. at 64–65.\nThat reliance reflects the intertwining, as opposed to any\n\n16 BARRY v. MEDTRONIC, INC.\n\n\n\n\n Here, Medtronic relied on the August and October\n2003 surgeries as reductions to practice that immediately\nproved that the claimed invention of the ’358 patent\nwould work for its intended purpose. But the evidence\nallows a reasonable finding that Dr. Barry did not know\nthat his invention would work for its intended purpose\nuntil January 2004, when he completed the follow-ups on\nthose surgeries, which were on three patients who fairly\nreflected the real-world range of application of the in-\nventive method.\n We have already noted the evidence that the three\nsurgeries involved “the three most common[] curve types\nof scoliosis” seen by surgeons, J.A. 1195, and that it was\nnot until January 2004 that Dr. Barry completed the\nstandard-practice follow-up on the third patient, at which\npoint the three-month acute phase of recovery was over\nand the patient could stand up and walk. We also have\nnoted Dr. Barry’s testimony that only then did he con-\nclude that the surgical method would work for its intend-\ned purpose, testimony confirmed by the fact that only\nthen did he write up his development work for publication\nin a professional forum.\n The record contains further supporting evidence. Dr.\nLenke noted the range of scoliosis conditions. J.A. 2644.\nEvidence from several sources confirmed that, to evaluate\nthe success of a spinal-deviation correction, it is important\nfor the surgeon to evaluate the patient after some time\nhas elapsed following the surgery, particularly once the\npatient can stand. See J.A. 1159–60, 1190–95, 1372,\n5406, 5417, 13016. Dr. Barry’s expert testified that “you\nknow nominally if you have performed a correction of the\n\n\n\nclean separation, of experimental use and reduction to\npractice standards, which is further reinforced in a later\nfootnote in Pfaff, 525 U.S. at 66 n.12.\n\nBARRY v. MEDTRONIC, INC. 17\n\n\n\nspine”—agreeing to the “some amelioration” characteriza-\ntion by Medtronic’s counsel only to that limited extent—\nand then immediately explained, starting in the same\nanswer, that what happened afterward was crucial:\n“when the patient stands up, there are some changes that\nhappen over time.” J.A. 1959–60. As a result, he added,\nalthough “normally you can see the straightening” at the\ntime of the surgery, “follow-up is absolutely required to\ndetermine that it lasts,” J.A. 2906, and the follow-up\nappointments allowed Dr. Barry to conclude, “‘[o]kay, this\nthing is holding up’ and . . . ‘[n]ow I know I’ve got a meth-\nod that works,’” J.A. 2899. Both Dr. Barry and his expert\nindicated that at least that amount of follow-up is not just\nprudent but consistent with standards for peer-reviewed\npublications reporting new techniques.\n That evidence suffices for the jury to have rejected\nMedtronic’s contention that Dr. Barry is charged with\nknowing that the surgical technique worked for its in-\ntended purpose immediately upon completion of the\nsurgical operation—at least the last operation, in October\n2003. The evidence is not limited to Dr. Barry’s own\ntestimony, as just indicated. And credibility assessments,\nwithin a broad range, are for the factfinders, especially\nwhen they have seen the witnesses live, as the jurors in\nthis case did. See, e.g., Cooper v. Harris, 137 S. Ct. 1455,\n1474 (2017); Perry v. New Hampshire, 565 U.S. 228, 237\n(2012); Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009);\nReeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,\n150 (2000); Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88\n(1891); Power Integrations, Inc. v. Fairchild Semiconduc-\ntor Int’l, Inc., 843 F.3d 1315, 1341 (Fed. Cir. 2016); Co-\nmark Comm’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1192–\n93 (Fed. Cir. 2000). On the evidence in this case, the jury\ncould readily credit the testimony of Dr. Barry—who has\nextensive medical experience and day-to-day professional\nresponsibility for patient health and safety—about what\nevaluation was reasonably necessary for a prudent de-\n\n18 BARRY v. MEDTRONIC, INC.\n\n\n\n\ntermination that his technique worked for its intended\npurpose.\n To the extent that Medtronic contends, and the dis-\nsent concludes, that the patent claims compel narrowing\nthe “intended purpose” determination to a single surgery,\nor even two surgeries, assessed for success immediately\nupon its completion, we disagree. The claims do not limit\nthe intended purpose in that way. They are not limited to\na particular type of curvature correction. Nor do they\nindicate that the intended purpose is limited to observing\na straightening at the completion of surgery, without\nregard to the correction lasting so as to improve the\npatient’s health. To the contrary, the preamble to the\nindependent claim calls for “the amelioration of aberrant\nspinal column deviation conditions,” ’358 patent, col. 6,\nlines 8–9, which Medtronic argues is the intended pur-\npose, Br. of Appellant at 30. See also ’358 patent, col. 3,\nlines 10–34 (specification statement of first four objects of\nthe invention using materially the same language). In a\nruling not disputed on appeal, the district court concluded\nthat the phrase would be given its “normal, customary\nmeaning,” without further construction, and that no\nindefiniteness problem would result because, in this\nmedical context, a skilled artisan, focused on “benefit to a\npatient,” would understand the scope of the phrase. J.A.\n33. That common-sense approach to identifying the\nintended purpose is rooted in the preamble claim lan-\nguage as well as the specification. And it is properly\nunderstood, consistent with the specification’s background\ndiscussion of patients’ conditions beyond the end of sur-\ngery, ’358 patent, cols. 1–2 (discussing patient health over\ntime), as looking past the time of a surgery to evaluate\nthe improvement in patients’ conditions and allowing the\nwithholding of judgment about the technique reliably\nworking until follow-up on a small but representative\n\nBARRY v. MEDTRONIC, INC. 19\n\n\n\nrange of “deviation conditions” surgeons would regularly\nencounter. 7\n The “intended purpose” need not be stated in claim\nlimitations that define the claim scope. Even in this case,\nthe claim language that Medtronic treats as identifying\n\n\n 7 The dissent suggests that at most two surgeries,\nnot three, were needed for the plural “conditions.” Dis-\nsent at 12–13. But Medtronic has not meaningfully\npresented, let alone supported, such a rationale for rever-\nsal. Only a single sentence in Medtronic’s opening brief,\nwhere arguments must be made, is of even possible rele-\nvance. After reciting the district court’s reliance on Dr.\nBarry’s testimony that “he wanted to follow up with his\npatients three months after the surgery,” citing J.A. 215,\n1196, Medtronic said: “That reasoning fails even on its\nown terms: three months after surgeries on August 4 and\n5, 2003, would mean reduction to practice in early No-\nvember, which is still nearly two months before the De-\ncember 30, 2003 critical date.” Br. of Appellant at 30,\nlines 6–9. If the dissent’s point is one about the claim\npreamble’s plural language, Medtronic’s sentence says\nnothing about that. If the dissent’s point is a medical-\njudgment point about the need for three rather than two\nsurgeries, Medtronic’s sentence is doubly deficient. The\ntestimony Medtronic says it is answering is not about\nthree versus two, but merely about the length of follow-up\ntime, as confirmed by the citations to J.A. 215, 1196. In\nany event, and decisively, a medical-judgment point must\nbe supported by evidence, but Medtronic’s sentence is\nunaccompanied by any citation to the record at all. Spe-\ncifically, there is no citation to evidence contrary to Dr.\nBarry’s testimony as a factual matter about the need for\nfollow-ups of three surgeries, much less evidence that\ncompelled a determination in Medtronic’s favor on this\npoint.\n\n20 BARRY v. MEDTRONIC, INC.\n\n\n\n\nthe “intended purpose” is preamble language that, it is\nundisputed here, is not limiting, i.e., it does not state a\nrequirement that must be proved to establish infringe-\nment. See J.A. 152 (unchallenged jury instruction). The\ncase law cited by the dissent (at 10–11) looks to the claims\nand specification as a whole for guidance, without declar-\ning strict requirements even as to those sources. We note\nthat it is hardly surprising that intended purpose need\nnot be stated in claim limitations, given that one typical\nway of claiming is simply to define the physical steps of\nthe process, or the physical elements of a product, without\nbuilding functional or purpose language into the claim\nlimitations at all. See, e.g., In re Schreiber, 128 F.3d 1473,\n1478 (Fed. Cir. 1997) (explaining that “[a] patent appli-\ncant is free to recite features of an apparatus either struc-\nturally or functionally” but that the latter choice presents\ndistinctive risks) (emphasis added).\n Case law confirms this approach. For example, in Co-\nrona Cord, the Supreme Court, for its reduction-to-\npractice analysis, inferred the accelerate-curing purpose\nfrom the specification. And it described the main claims\nat issue (No. 1,411,231, claims 4, 8, and 12) as stating\nsimple process steps without any reference to that pur-\npose. 276 U.S. at 366.\n In Manville, the patentee designed a light pole as-\nsembly that could be easily raised and lowered. 917 F.2d\nat 547–48. None of the claims included language about\nthe light pole being durable in different weather condi-\ntions, but we determined that the patentee’s testing of the\ninvention “under wind, cold and corrosive atmospheric\nconditions” did not qualify as a public use because “[p]rior\nto its testing in the winter environment, there really was\nno basis for confidence by the inventor that the invention\nwould perform as intended, and hence no proven inven-\ntion to disclose.” Id. at 550. It was not necessary for the\npatent to claim durability in order for durability to be\npart of the patent’s intended purpose because a certain\n\nBARRY v. MEDTRONIC, INC. 21\n\n\n\nfunction can be “inherent to the purpose of an invention,”\nnecessitating further testing even when that inherent\npurpose is not claimed. Id. at 551.\n Similarly, in Polara, we agreed with Polara that it\n“needed to test the claimed invention at actual crosswalks\nof different sizes and configurations and where the proto-\ntype would experience different weather conditions to\nensure that the invention would work for its intended\npurpose.” 894 F.3d at 1349. The patent in that case was\nfor a control system that would alert pedestrians when it\nwas safe to cross the street. Id. at 1344. The claim lan-\nguage did not include limitations about the weather\nconditions or the size of the crosswalk, id., but we deter-\nmined that the inventor could not know if the invention\nworked for its intended purpose until it had been tested in\na variety of settings where it would operate, id. at 1349.\nTesting an invention in practical situations was part of\nthe determination of whether it was ready for patenting.\n In Honeywell International v. Universal Avionics Sys-\ntems, we likewise recognized that an invention might not\nbe ready for patenting until the inventor ascertains how\nthat invention will function in practical circumstances.\nHoneywell Int’l Inc. v. Universal Avionics Systems Corp.,\n488 F.3d 982 (Fed. Cir. 2007). Honeywell was developing\na terrain warning system for airplanes to address a\nproblem in the prior art, whose ground proximity detec-\ntors could not detect sudden changes in terrain. Id. at\n987. Honeywell’s system “compare[d] the aircraft’s posi-\ntion with an on-board digitized map of the earth’s terrain\nand man-made obstacles.” Id. at 987–88. Because there\nwas evidence that Honeywell negotiated to sell its system\nto a customer, raising an issue under the on-sale bar, we\nhad to determine if the invention was ready for patenting\nunder the Pfaff test for that statutory bar. Id. at 997. We\nheld that Honeywell’s system was not ready for patenting\nbefore the critical date because the sale and integration of\nthe system in real planes flown by human pilots “were a\n\n22 BARRY v. MEDTRONIC, INC.\n\n\n\n\npart of Honeywell’s program to determine that the inven-\ntion worked for its intended purpose.” Id. at 996. In\nshort, Honeywell’s determination that the system worked\nfor its intended purpose was reasonably dependent on\ncompletion of a range of tests in a variety of real-world\nsituations in which the system would be used. 8\n In TP Laboratories, Inc. v. Professional Positioners,\nInc., 724 F.2d 965 (Fed. Cir. 1984), moreover, we con-\nfirmed the common-sense proposition that, for medical\nprocedures, follow-up appointments can be necessary to\ndetermine when an invention is performing its intended\npurpose. The invention at issue was a means of correct-\ning irregularities in teeth. Id. at 972. We determined\nthat the inventor could not have immediately assessed\nafter implantation whether the device was working for its\nintended purpose; therefore, it was reasonable for the\ndoctor to continue to follow patients and test the inven-\ntion on several patients before determining if it was\nworking for the purpose intended. Id.\n The three types of curvature addressed by Dr. Barry’s\nthree surgeries are analogous to the different weather\nconditions in Manville and Polara, the different crosswalk\ndimensions in Polara, and the different types of terrain in\nHoneywell. And Dr. Barry’s reliance on follow-up ap-\npointments is analogous to the role of follow-up appoint-\nments in TP Laboratories. We therefore affirm the\ndetermination that the claimed ’358 patent invention was\nnot ready for patenting before the critical date.\n\n\n 8 In the related context of experimental use, we\nhave likewise recognized that sometimes testing for a\nproperty can fall outside the statutory bars even if that\nproperty is not required by a claim limitation. See Elec-\ntromotive, 417 F.3d at 1212 (first citing Manville as well\nas EZ Dock, 276 F.3d at 1353, then citing Seal-Flex, 98\nF.3d at 1320).\n\nBARRY v. MEDTRONIC, INC. 23\n\n\n\n 2\n Although the foregoing discussion suffices to affirm\nthe rejection of Medtronic’s invalidity challenge under\n§ 102(b)’s public-use bar, we think it worthwhile to ad-\ndress Medtronic’s contentions regarding the other element\nof the test of invalidity under the public-use bar: whether\nthe invention was “in public use.” We conclude that\nMedtronic also fails under this element.\n Medtronic sought to establish this element by show-\ning that the invention was accessible to the public and\nthat it was commercially exploited. We conclude, howev-\ner, that the evidence permitted a reasonable finding that\nDr. Barry’s ’358 patent invention was not accessible to the\npublic before the critical date. We also conclude that the\nasserted acts of commercial exploitation, namely, the\nAugust and October 2003 surgeries, come within the\nexperimental-use exception.\n i\n In assessing accessibility to the public, we have fo-\ncused on several underlying facts: “the nature of the\nactivity that occurred in public; the public access to and\nknowledge of the public use; [and] whether there was any\nconfidentiality obligation imposed on persons who ob-\nserved the use.” Dey, L.P. v. Sunovion Pharm., Inc., 715\nF.3d 1351, 1355 (Fed. Cir. 2013). Here, the alleged public\nuse consisted of Dr. Barry’s surgeries. But there is sub-\nstantial evidence that Dr. Barry’s surgeries were not\nexposed or accessible to the public.\n Unlike in the classic case of Egbert v. Lippmann, 104\nU.S. 333, 335 (1881), the inventor here did not relinquish\ncontrol of his invention. Dr. Barry was the only one who\nactually practiced the invention, i.e., performed the sur-\ngery using the claim-required manipulation of linked\nderotators. And while other people were present in the\noperating room—an anesthesiologist, two assistant physi-\n\n24 BARRY v. MEDTRONIC, INC.\n\n\n\n\ncians, a scrub technician, a neurophysiologist, a circulat-\ning nurse, and an equipment representative—there was\nsufficient evidence for the jury to find facts establishing\nthat the technique was not accessible to the public\nthrough those people.\n The evidence showed that very few of the people in\nthe operating room had a clear view of the surgical field,\nwhere Dr. Barry was using his invention, because they\nwere either not permitted near the sterile field or because\nthere was a drape blocking the view. More dispositively,\nalthough sometimes (as in Egbert) even a limited disclo-\nsure can make an invention accessible to the public, see\nDey 715 F.3d at 1355–56, an accessibility determination\nmay be rejected where the evidence establishes a suffi-\ncient obligation of confidentiality, which can be implied\nrather than express. Id. at 1357; Delano Farms Co. v.\nCal. Table Grape Comm’n, 778 F.3d 1243, 1249 (Fed. Cir.\n2015) (“[D]emonstration of a prototype to ‘friends and\ncolleagues’ was not invalidating because the evidence\nsupported the existence of ‘a general understanding of\nconfidentiality.’”); Invitrogen, 424 F.3d at 1381 (“[T]his\ncourt has determined that a use before the critical period\nwas not public even without an express agreement of\nconfidentiality.”). Here, the jury could find that those in\nthe operating room were under an implied duty of confi-\ndentiality covering at least the tools and techniques used.\nSee J.A. 1311, 1167–68, 1679, 2388–89. These confidenti-\nality understandings suffice to support the jury’s finding\nof no public accessibility.\n ii\n For commercial exploitation, as for public accessibil-\nity, Medtronic relies on the August and October surgeries.\nIt rightly recognizes that “an inventor’s own prior com-\nmercial use, albeit kept secret, may constitute a public\nuse or sale under § 102(b), barring him from obtaining a\npatent.” Woodland Tr. v. Flowertree Nursery, Inc., 148\n\nBARRY v. MEDTRONIC, INC. 25\n\n\n\nF.3d 1368, 1370 (Fed. Cir. 1998); see TP Labs., 724 F.2d at\n972. And it points out, correctly, that Dr. Barry was\ncompensated for the three surgeries in which he used his\ninvention. It also cites precedents to support its conten-\ntion that a determination of commercial exploitation\nwould not be defeated simply because Dr. Barry charged\nhis standard fee for the surgeries, not an extra amount\nreflecting use of the inventive method. See, e.g., Cargill,\nInc. v. Canbra Foods, Ltd., 476 F.3d 1359, 1369, 1370\n(Fed. Cir. 2007); In re Kollar, 286 F.3d 1326, 1333 (2002)\n(citing Scaltech, Inc. v. Retec/Tetra, LLC, 269 F.3d 1321,\n1328 (Fed. Cir. 2001)) (relying on “[a]ctually performing\nthe process itself for consideration”); Application of Dybel,\n524 F.2d 1393, 1401 (CCPA 1975); Application of Joss-\nerand, 188 F.2d 486, 493–94 (C.C.P.A. 1951). But cf. TP\nLabs., 724 F.2d at 968, 973 (finding no commercial exploi-\ntation, in part, because “the inventor[s] made no extra\ncharge for fitting the three patients” with the invention\nand “followed ‘their’ regular practice of setting a fixed\ntotal fee”).\n But regardless of the foregoing, the August and Octo-\nber surgeries come within the experimental-use exception.\nAn inventor’s use, while public in one sense, will not be\nconsidered a statutory public use if the use was experi-\nmental. Electromotive, 417 F.3d at 1211; City of Eliza-\nbeth, 97 U.S. at 134–35 (“The use of an invention by the\ninventor himself, or of any other person under his direc-\ntion, by way of experiment, and in order to bring the\ninvention to perfection, has never been regarded as [a\npublic] use. . . . [Testing an invention in a building even\nwith the doors open] is not a public use, within the mean-\ning of the statute, so long as the inventor is engaged, in\ngood faith, in testing its operation. He may see cause to\nalter it and improve it, or not. His experiments will\nreveal the fact whether any and what alterations may be\nnecessary.”). “[I]n the context of a public use bar, evi-\ndence of experimental use may negate either the ‘ready\n\n26 BARRY v. MEDTRONIC, INC.\n\n\n\n\nfor patenting’ or ‘public use’ prong.” Invitrogen, 424 F.3d\nat 1379–80. “A use may be experimental if its purpose is:\n‘(1) [to] test claimed features of the invention or (2) to\ndetermine whether an invention will work for its intended\npurpose—itself a requirement of patentability.’” Polara,\n894 F.3d at 1348; see Clock Spring, L.P. v. Wrapmaster,\nInc., 560 F.3d 1317, 1327 (Fed. Cir. 2009).\n This court has identified a host of factors that can be\nrelevant to assessing whether a use is experimental,\nincluding:\n (1) the necessity for public testing, (2) the amount\n of control over the experiment retained by the in-\n ventor, (3) the nature of the invention, (4) the\n length of the test period, (5) whether payment was\n made, (6) whether there was a secrecy obligation,\n (7) whether records of the experiment were kept,\n (8) who conducted the experiment, (9) the degree\n of commercial exploitation during testing, (10)\n whether the invention reasonably requires evalu-\n ation under actual conditions of use, (11) whether\n testing was systematically performed, (12) wheth-\n er the inventor continually monitored the inven-\n tion during testing, and (13) the nature of contacts\n made with potential customers.\nId.; see Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d\n1336, 1353 (Fed. Cir. 2002). Many of those considerations\nare factual, but “[e]xperimental use is a question of law to\nbe analyzed based on the totality of the surrounding\ncircumstances.” Petrolite Corp. v. Baker Hughes Inc., 96\nF.3d 1423, 1426 (Fed. Cir. 1996).\n In this case, the evidence—including the evidence al-\nready discussed when addressing “ready for patenting”—\nshows that many of the above-recited factors point toward\na conclusion of experimental use. Dr. Barry was not sure\nthat the device would work on different types of scoliosis,\nso he performed surgeries on the three main types. He\n\nBARRY v. MEDTRONIC, INC. 27\n\n\n\nwas not confident that the new procedure was effective\nuntil the January 2004 follow-up appointment for the\nthird of those surgeries. In the context of this medical\npatent, as we have discussed, it is reasonable, to truly\ndetermine whether a method works, to engage in such\ntesting for a brief time on a small but representative\nrange of expected circumstances of use and to rely on\nfollow-up. See TP Labs., 724 F.2d at 972. Dr. Barry\nearned no more from the surgeries than he would have\nearned had he used prior-art methods; and there is no\nbasis for finding that he attracted the three customers\nbecause of the new technique—indeed, Medtronic insists\nthat they did not even know it was being used. 9 In addi-\ntion, Dr. Barry was the only one to perform the method\nusing his device. More generally, he did not surrender\ncontrol of the claimed invention before the critical date.\nJ.A. 1312. He kept control through the expectation of\nsecrecy binding the other medical professionals present at\nthe surgeries and the other circumstances that, as ex-\nplained above, support the jury’s determination of no\npublic accessibility. And other people were aware that he\nwas experimenting, including one doctor, one of the\nnurses in the operating room, and a representative of the\nDePuy medical-device firm who was helping with the\n\n\n\n 9 Contrary to the dissent (at 21–22), this fact reduc-\nes the “degree of commercial exploitation,” Clock Spring,\n560 F.3d at 1327, in the sense at the heart of the § 102(b)\npolicy of preventing an overlong period of commercial\nexploitation of an invention. Though earning his normal\nfees from the three surgeries, Dr. Barry did not “exploit”\nhis invention as a means to attract the three patients for\nthose surgeries or to charge more because he used his new\ntechnique. The jury could find that he would have gotten\nthe same business, and earned the same fee, even if he\nhad not planned to use or used the inventive process.\n\n28 BARRY v. MEDTRONIC, INC.\n\n\n\n\ninstrumentation. See J.A. 1370, 1178–79, 1733–35.\nThese are all facts that the jury could reasonably find;\nconsidered together, not in isolation from each other, they\nweigh in favor of a determination of experimental use.\n Medtronic relies centrally on two factors as pointing\nagainst a finding of experimental use: that Dr. Barry\ncharged his patients for the surgeries; and that Dr. Barry\ndid not inform his patients that he was engaged in testing\nof his particular technique. The first factor is not by itself\nweighty in this case. Receipt of payment, if sufficiently\nincidental to an experiment, is not automatically disquali-\nfying. See, e.g., Int’l Tooth Crown Co. v. Gaylord, 140 U.S.\n55, 62–63 (1891); Allen, 299 F.3d at 1354. The evidence\npermitted the jury to find that Dr. Barry earned no more\nfrom the surgeries than he would have earned from using\nprior-art methods and did not attract his three patients\nbased on use of the inventive method. On these facts, his\nfee can be viewed as merely incidental to experimental\nwork—a very limited number of tests, “reasonably neces-\nsary” to the experimental purpose, Int’l Tooth Crown, 140\nU.S. at 63—if the surgeries are otherwise experimental.\n Medtronic must rely, therefore, on the second factor,\nat least when present together with the first. Both cir-\ncumstances were present in Sinskey v. Pharmacia Oph-\nthalmics, Inc., 982 F.2d 494 (Fed. Cir. 1992), overruled on\nother grounds by Pfaff, 525 U.S. 55 (1998), on which\nMedtronic heavily relies. Dr. Sinskey was working on an\nintraocular lens that would be “implanted in the human\neye to restore or improve the visions of patients who ha[d]\nhad their natural lens removed because of damage or\ndisease.” Id. at 496. Between January and February\n1980—before the critical date of February 24, 1980—Dr.\nSinskey implanted the lens in eight patients. Id. at 497.\nHe followed standard hospital procedures and was paid\nfor the surgery. Id. We determined that the “objective\nevidence . . . cut[] heavily against experimental use.” Id.\nat 499. We noted that he “charged his usual surgical fee\n\nBARRY v. MEDTRONIC, INC. 29\n\n\n\nfor the operation and a standard price for the implants.”\nId. And we relied on the fact that he “did not inform the\npatients that they were being treated with a ‘new’ or\n‘experimental’ lens.” Id.\n The facts in Sinskey differ from the facts here in ways\nthat we think are crucial. First, there was evidence here\nthat not just Dr. Barry, but others, understood the surger-\nies to be experimental. In Sinskey, there was no such\nobjective confirmation; and Dr. Sinskey himself, during\nhis deposition, had stated that he did not consider his\nprior uses to be experimental. Id. at 497–98. Second, the\nnature of the invention and conduct is critically different\nin the two cases. Whereas Dr. Barry’s invention is of a\nmethod, Dr. Sinskey’s patent was for a physical product,\ni.e., a lens. Id. at 496 (“The patent is directed to an intra-\nocular lens.”). And when Dr. Sinskey implanted the lens\nin a patient, he was surrendering control of his invention,\nwhereas Dr. Barry did not surrender control of his inven-\ntion when he performed the derotation surgeries.\n The experimental-use inquiry asks whether the in-\nventor’s conduct would lead the “‘public’ to reasonably\nbelieve the invention was in the public domain,” Manville,\n917 F.2d at 550, and in particular whether there has been\n“any use of that invention by a person other than the\ninventor who is under no limitation, restriction or obliga-\ntion of secrecy to the inventor,” In re Smith, 714 F.2d\n1127, 1134 (Fed. Cir. 1983). When Dr. Sinskey surren-\ndered control of the invention to another, without explain-\ning that the device was experimental, the public was\nentitled to believe that the device was in the public do-\nmain. That conclusion answered the statutory question\nat least in the absence of any objective evidence support-\ning Dr. Sinskey’s litigation claim of experimental use.\n This court stated the principle in LaBounty Mfg., Inc.\nv. U.S. Int’l Trade Comm’n: “When sales are made in an\nordinary commercial environment and the goods are\n\n30 BARRY v. MEDTRONIC, INC.\n\n\n\n\nplaced outside the inventor’s control, an inventor’s secret-\nly held subjective intent to ‘experiment,’ even if true, is\nunavailing without objective evidence to support the\ncontention. Under such circumstances, the customer at a\nminimum must be made aware of the experimentation.”\n958 F.2d 1066, 1072 (Fed. Cir. 1992) (citation omitted).\nThat statement ties a demand for a warning of experi-\nmentation to at least two premises (which were present in\nSinskey and LaBounty) beyond the “ordinary commercial\nenvironment”—there was no other objective evidence of\nexperimentation, but merely a subjective inventor belief;\nand “the goods [were] placed outside the inventor’s con-\ntrol.” Id. But both of those premises are missing in the\npresent case. There is objective evidence of experimenta-\ntion, not just a purely subjective intent of Dr. Barry. And\nthere was no loss of control—a factor that this court has\nstressed “is critically important.” Lough v. Brunswick\nCorp., 86 F.3d 1113, 1120 (Fed. Cir. 1996). No person left\nthe operating room with the (method) invention, and no\nperson learned the method without an obligation of confi-\ndentiality. In these circumstances, there was no placing\nof the invention in the public domain that is inconsistent\nwith experimentation.\n Medtronic cites several of our opinions that contain\nlanguage that, taken out of context, might be read as\nmaking a necessary requirement for experimental use\nthat the experimenter inform patients or customers of the\nexperimental nature of the product. But the statements\nshould not be taken out of context. Like LaBounty, which\nexpressly tied the inform-customers statement to placing\na product invention outside the inventor’s control, every\none of those cases in fact involved a device placed into a\npatient’s or customer’s control, and out of the inventor’s\ncontrol. See, e.g., Electromotive, 417 F.3d at 1213 (focus-\ning on the importance of customer awareness when the\ninvention is put squarely in the hands and in the control\nof the customer); Paragon Podiatry Lab., Inc. v. KLM\n\nBARRY v. MEDTRONIC, INC. 31\n\n\n\nLabs., Inc., 984 F.2d 1182, 1186–87 (Fed. Cir. 1993)\n(discussing the importance of communicating with cus-\ntomers the experimental nature of orthotic devices placed\nin the customer’s shoes); Sinskey, 982 F.2d at 499 (dis-\ncussing how Mr. Sinskey fitted the patients with a new\nkind of lens); LaBounty, 958 F.2d at 1069–70, 1072 (dis-\ncussing the need to inform customers who used the scrap\nmetal shears that the shears were experimental); In re\nDybel, 524 F.2d at 1394–95, 1401 (discussing how the\ninventor’s failure to disclose the experimental nature of\nhis “load sensing piezoelectric transducer” when he sold it\nto a customer was fatal to the inventor’s experimental-use\nargument). We have not applied the inform-customer\nprinciple in a context, like the present, involving a meth-\nod kept within the inventor’s control. The underlying\nlogic of the principle does not justify its extension here:\nexplaining to patients (or their parents or insurers) that\nthe procedure was experimental was not vital to keeping\nit from the public domain.\n The experimental-use exception is properly applied in\nlight of the recognized mix of § 102(b) policies—permitting\nexperimental testing, protecting existing public domain\nknowledge, limiting extension of the statutory period of\ngaining revenues due to the invention, and encouraging\nprompt disclosure. See, e.g., Lough, 86 F.3d at 1119–20.\nHere, on all the facts the jury could properly find, we\nconclude that the surgeries fall within the experimental-\nuse exception. 10\n B\n The second asserted § 102(b) ground of invalidity of\nthe asserted claims of the ’358 patent is the on-sale bar.\n\n\n\n 10 We discuss Medtronic’s new-trial challenge to a\njury instruction regarding experimental use in our discus-\nsion of the on-sale bar next.\n\n32 BARRY v. MEDTRONIC, INC.\n\n\n\n\n“A person shall be entitled to a patent unless . . . the\ninvention was . . . on sale in this country, more than one\nyear prior to the date of the application for patent in the\nUnited States[.]” 35 U.S.C. § 102(b) (2002). To be ren-\ndered invalid under the on-sale bar, an invention “must\nbe the subject of a commercial offer for sale” in the United\nStates and it “must be ready for patenting.” Pfaff, 525\nU.S. at 67; see Helsinn Healthcare S.A. v. Teva Pharms.\nUSA, Inc., No. 17-1229, slip op. at 1, 6 (U.S. Jan. 22,\n2019). But experimental use negates applicability of the\non-sale bar, as it does the public-use bar. Polara, 894\nF.3d at 1348.\n We have already concluded, in discussing the public-\nuse bar, that the ’358 patent’s invention was not ready for\npatenting before the critical date and that the August and\nOctober 2003 surgeries come within the experimental-use\nexception. Those conclusions leave only one aspect of\nMedtronic’s on-sale-bar challenge that requires discus-\nsion. 11\n Medtronic argues on one ground for a new trial re-\ngarding experimental use. It challenges a jury instruction\nthat informed the jury that “there is a difference between\n‘experimental use’ in the context of patent law and the\nway that the word ‘experiment’ is used in the context of\nmedicine.” J.A. 160. We reject this challenge.\n Although underlying questions of patent law are mat-\nters of this court’s law, we generally apply regional-circuit\nlaw on the overall standards for setting aside a verdict\nbecause of asserted error in jury instructions. See Kinetic\n\n\n\n 11 We need not discuss whether certain pre-critical-\ndate communications between Dr. Barry and two device\nmakers, DePuy and SpineVision, would constitute offers\nfor sale under “traditional contract law principles.” Allen\nEng’g, 299 F.3d at 1352.\n\nBARRY v. MEDTRONIC, INC. 33\n\n\n\nConcepts, Inc. v. Blue Sky Med. Grp., Inc., 554 F.3d 1010,\n1021 (Fed. Cir. 2009); Voda v. Cordis Corp., 536 F.3d\n1311, 1328 (Fed. Cir. 2008). The Fifth Circuit asks\nwhether “the ‘charge as a whole leaves [the court] with\nsubstantial and ineradicable doubt whether the jury [was]\nproperly guided in its deliberations’ and the challenged\ninstructions, separately or collectively, ‘affected the out-\ncome of the case.’” Janvey v. Dillon Gage, Inc. of Dallas,\n856 F.3d 377, 388 (5th Cir. 2017).\n The district court’s instruction was not an abuse of\ndiscretion. In light of Medtronic’s suggestions regarding\nthe impropriety of medical experimentation without\ninformed consent, it was reasonable for the court to\naddress potential confusion about borrowing, for § 102(b),\nlegal standards that govern experiments in quite different\nlegal contexts. And what the court said on the subject\nwas both modest and consistent with our holdings. This\ncourt has explained, specifically with regard to testing,\nthat legal standards in other contexts do not control in the\npatent-validity context. Pennwalt Corp. v. Akzona Inc.,\n740 F.2d 1573, 1580 (Fed. Cir. 1984) (“The fact that a sale\nor use occurs under a regulatory testing procedure, such\nas a FIFRA15 experimental use permit, does not make\nsuch uses or sales per se experimental for purposes of 35\nU.S.C. § 102(b).” (footnote omitted)); see also Helsinn, 855\nF.3d at 1373 (explaining that the standards for FDA\nexperimentation are different from patent law’s “ready for\npatenting” standards); Clock Spring, 560 F.3d at 1328\n(explaining that actions and regulations by the Depart-\nment of Transportation did not impact the analysis of\nwhether the inventor’s use was experimental). The\ndistrict court’s jury instruction in this case reasonably\nmade that point to reduce the potential for a confused\napplication of § 102(b)’s standards.\n\n34 BARRY v. MEDTRONIC, INC.\n\n\n\n\n C\n Medtronic’s final invalidity challenge, applicable to\nboth patents at issue here, is that Dr. Lenke invented the\nclaimed matter before Dr. Barry, rendering the asserted\nclaims invalid under 35 U.S.C. § 102(g). “A person shall\nbe entitled to a patent unless . . . before such person’s\ninvention thereof, the invention was made in this country\nby another inventor who had not abandoned, suppressed,\nor concealed it.” 35 U.S.C. § 102(g)(2) (2002). “[P]riority\nof invention goes to the first party to reduce an invention\nto practice unless the other party can show that it was the\nfirst to conceive the invention and that it exercised rea-\nsonable diligence in later reducing that invention to\npractice.” Z4 Techs., 507 F.3d at 1352.\n Reduction to practice requires that the inventor prove\nthat “(1) he constructed an embodiment or performed a\nprocess that met all the limitations . . . and (2) he deter-\nmined that the invention would work for its intended\npurpose.” Id. Medtronic had the burden of showing by\nclear and convincing evidence that Dr. Lenke reduced to\npractice first. See id. Reduction to practice is a mixed\nquestion of law and fact. Id. “[W]e must sustain the\njury’s conclusion unless the jury was not presented with\nsubstantial evidence to support any set of implicit find-\nings sufficient under the law to arrive at its conclusion.”\nEli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1362\n(Fed.Cir.2004).\n We uphold the jury’s rejection of Medtronic’s § 102(g)\nchallenge because there is substantial evidence to support\na finding that Dr. Lenke did not reduce the claimed\ninventions to practice before February 2006, after Dr.\nBarry did so (for both patents at issue here). Weaknesses\nin Medtronic’s evidence, including credibility issues,\nallowed the jury to reject Medtronic’s assertion that Dr.\nLenke, having worked on linked derotators since 2002,\nreduced the Barry-claimed inventions to practice before\n\nBARRY v. MEDTRONIC, INC. 35\n\n\n\nDr. Barry did so in 2004. See Barry, 230 F. Supp. 3d at\n659–63. At the same time, substantial evidence supports\nDr. Barry’s account of his invention and reduction to\npractice before February 9, 2006, including his 2003\nsurgeries and follow-up appointments, his securing of\nassistance from device makers, and his continued work in\n2004.\n D\n Medtronic asserted in the district court that the two\npatents are unenforceable because Dr. Barry engaged in\ninequitable conduct during patent prosecution in the\nPTO. The district court found no such inequitable con-\nduct. We affirm that determination.\n “Inequitable conduct is an equitable issue committed\nto the discretion of the trial court and is, therefore, re-\nviewed by this court under an abuse of discretion stand-\nard.” Energy Heating, LLC v. Heat On-The-Fly, LLC, 889\nF.3d 1291, 1299 (Fed. Cir. 2018). Inequitable conduct\nhere requires a showing of both materiality and intent.\nTherasense, Inc. v. Becton, Dickinson & Co., 649 F.3d\n1276, 1290 (Fed. Cir. 2011) (en banc). “[W]e review the\ndistrict court’s findings of materiality and intent for clear\nerror.” Regeneron Pharm., Inc. v. Merus N.V., 864 F.3d\n1343, 1351 (Fed. Cir. 2017) (quotation marks omitted).\n The basis of the charge of inequitable conduct is Fig-\nure 6 of both patents, which Dr. Barry initially described\nincorrectly. Both patents describe Figure 6 as displaying\n“a three frame x-ray view showing ‘before and after’ views\nof a scoliosis patient who was treated in an investigation-\nal procedure using the system and method of the present\ninvention.” ’358 patent, col. 4, lines 38–41; ’121 patent,\ncol. 4, lines 44–47. In January 2008, during the initial\nprosecution, the examiner requested clearer drawings\nthan those originally submitted, including the x-rays that\nmake up Figure 6. J.A. 5077 (“Figures 1-4 and 6-7 are\nobjected [to] as they are unclear and do not distinctly\n\n36 BARRY v. MEDTRONIC, INC.\n\n\n\n\nshow features which are pertinent to the understanding of\nthe disclosed device. New corrected drawings are re-\nquired.”). In September 2008, Dr. Barry’s counsel submit-\nted a different set of x-rays for Figure 6. The evidence in\nthis case indicates that counsel was not aware that,\ncontrary to the description, the subject of the submitted x-\nrays actually was not a patient treated with the inventive\nmethods, but instead was a patient treated on June 23,\n2003, using a method that was not the invention claimed\nin the ’358 patent (or the ’121 patent’s follow-on inven-\ntion).\n In March 2016, Dr. Barry sought to correct the de-\nscription during this litigation. For the ’121 patent, the\nPTO allowed the correction, issuing a Certificate of Cor-\nrection in August 2016. Dr. Barry simultaneously re-\nquested the same correction of the ’358 patent, but the\n’358 patent was the subject of an inter partes review\nproceeding at the time, so he withdrew the request in\nApril 2016. Dr. Barry then filed a motion to correct under\n37 C.F.R. § 1.323. The Patent Trial and Appeal Board\ndenied the motion, expressing uncertainty about why the\nmistake had happened and why Dr. Barry had taken as\nlong as he did to ask for the correction. When Dr. Barry\nagain requested a certificate of correction from the PTO\non May 25, 2017, the PTO granted the request and issued\na Certificate of Correction in June 2017.\n The district court found that there was no intent to\ndeceive the PTO on the part of Dr. Barry and his counsel.\nInequitable Conduct Op., 245 F. Supp. 3d at 804–06. The\ndistrict court found that both Dr. Barry and his counsel\nwere credible in explaining why the errors occurred,\nwithout any intent to deceive, and why the errors were\nnot discovered until this litigation. Id. We see no clear\nerror in the court’s finding that the intent required for\ninequitable conduct is absent here. We need not reach the\nissue of materiality.\n\nBARRY v. MEDTRONIC, INC. 37\n\n\n\n E\n Medtronic challenges the jury’s finding that Medtron-\nic directly infringed the patents and that it induced others\nto infringe. “Whoever actively induces infringement of a\npatent shall be liable as an infringer.” 35 U.S.C. § 271(b).\n“[I]nducement liability may arise if, but only if, [there is]\n. . . direct infringement.” Limelight Networks, Inc. v.\nAkamai Techs., Inc., 134 S. Ct. 2111, 2117 (2014) (internal\nquotation marks omitted). “The patentee must also show\nthat the alleged infringer possessed the requisite intent to\ninduce infringement, which we have held requires that\nthe alleged infringer knew or should have known his\nactions would induce actual infringements.” Eli Lilly &\nCo. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357,\n1364 (Fed. Cir. 2017) (internal quotation marks omitted).\n“Circumstantial evidence can support a finding of specific\nintent to induce infringement.” Vanda Pharm. Inc. v. W.-\nWard Pharm. Int’l Ltd., 887 F.3d 1117, 1129 (Fed. Cir.\n2018); Warsaw Orthopedic, Inc. v. NuVasive, Inc., 824\nF.3d 1344, 1347 (Fed. Cir. 2016). “[I]nducement can be\nfound where there is [e]vidence of active steps taken to\nencourage direct infringement, which can in turn be found\nin advertising an infringing use or instructing how to\nengage in an infringing use.” Vanda, 887 F.3d at 1129\n(internal quotation marks omitted). Direct infringement\nand inducement are issues of fact. Sanofi v. Watson\nLabs., Inc., 875 F.3d 636, 645 (Fed. Cir. 2017); 01 Com-\nmunique Lab., Inc. v. LogMeIn, Inc., 687 F.3d 1292, 1296\n(Fed. Cir. 2012).\n 1\n Substantial evidence supports the jury’s finding of\nunderlying direct infringement by surgeons. Dr. Barry\npresented the results of a survey—the Neal Survey—that\nasked spine surgeons questions about the spine derotation\n\n38 BARRY v. MEDTRONIC, INC.\n\n\n\n\nsurgeries they had performed in the last two years. See\nJ.A. 5449–57. 12 In particular, the survey asked doctors\nwhether they had performed surgeries that included the\nfollowing steps:\n Insert 2 spinal rods through pedicle screws on\n multiple vertebrae (at any stage of the proce-\n dure)[.] Attach derotators to pedicle screws on 2\n or more vertebrae. Mechanically link 2 or more\n derotators. Link 2 or more different derotators at-\n tached to screws in a second group of 2 or more\n vertebrae (the 2 groups may have vertebrae in\n common). Both sets of linked derotators are\n moved simultaneously[.] Engage pedicle screw\n locking mechanism to hold vertebrae in derotated\n position[.]\nJ.A. 5454.\n Medtronic argues insufficiency, or even inadmissibil-\nity, of the Neal Survey because it did not specifically\nname the accused Medtronic VCM kit in asking doctors\nwhat they did. We do not think, however, that Medtronic\nhas shown error in the admission of or reliance on the\nsurvey as reasonably indicating the amount of activity by\nsurgeons that would infringe.\n The steps recited in the survey’s inquiry track the\nclaim language in the patent. The patent claim language\nincludes: “implanting . . . each pedicle screw in a pedicle\nregion of each . . . first group of multiple vertebrae of a\nspinal column,” ’358 patent, col. 6, lines 22–23; “a first\ngroup of pedicle screw engagement members which are\n\n\n 12 The parties have not specified precisely when the\nNeal Survey was conducted. But the district court said\nthat it was not completed when Dr. Barry filed a motion\nconcerning non-VCM products, a motion filed in late\nFebruary 2016. J.A. 15168 n.8.\n\nBARRY v. MEDTRONIC, INC. 39\n\n\n\nmechanically linked with said first handle means” of the\n“first pedicle screw cluster derotation tool, id., col. 6, lines\n13–17; “in a single motion simultaneously rotating said\nvertebrae of said first group of multiple vertebrae,” id.,\ncol. 6, lines 33–35; and “actuating said spinal rod en-\ngagement means to secure said vertebrae in their respec-\ntive and relative positions,” id., col. 6, lines 53–55. On the\nrecord before us, we cannot say, as a matter of law, that a\nsurvey like this one had to itemize every single claim\nelement: some claim elements might, for example, be\nessentially universal accompaniments of the steps includ-\ned in the questions, making their inclusion pointlessly\ncomplicating. To establish the inadequacy of the survey,\nMedtronic had to show with specificity that the absence of\nsome inquiry made the questions asked and answers\ngiven an unreliable indicator of the occurrence of activity\nthat constitutes direct infringement. It has not done so.\nAnd if the identification of substantive steps in the survey\nwas adequate, the omission of the “VCM” name makes no\ndifference.\n The Neal Survey asked not only about specific steps\nbut also about surgeons’ use of Medtronic’s Horizon\nSystem. J.A. 5451. According to Dr. Barry’s expert,\nmoreover, any use of the Horizon System to derotate a\nspine would have used the VCM kit. The jury could\naccept that testimony. Although Medtronic has argued\nthat use of certain tube derotators might not infringe yet\nwould have been captured by the Neal Survey about what\nsurgeons actually used, the jury could reject that conten-\ntion. There was evidence indicating that such derotators\nwould not have worked as the claims require. Medtronic\nhas also argued, in this court and in its post-trial motion,\nthat the Neal Survey would have captured use of its\nSmartLink product, which it says would be non-\ninfringing; but all evidence of SmartLink was excluded\nfrom the trial, with Medronic’s agreement, so such evi-\n\n40 BARRY v. MEDTRONIC, INC.\n\n\n\n\ndence cannot support Medtronic’s challenge to the verdict.\nBarry, 230 F. Supp. 3d at 642 n.9.\n The Neal Survey is not the only evidence of direct in-\nfringement. The jury could find that Dr. Lenke himself\nused the accused VCM kit. Dr. Lenke testified that when\nhe performed derotations, the technique involving the\nVCM kit “would be the technique . . . that [he] would use”\nand continued to use after 2010 (the year the ’358 patent\nissued). J.A. 2706–08. He also continued to educate other\nsurgeons on this technique after 2010.\n Medtronic also makes an argument directed specifi-\ncally to infringement of the ’121 patent. It points to the\nrequirement, stated in that patent’s claim 2 as quoted\nabove, of a cross-linking member connecting two handle\nmeans, each of which links three screw engagement\nmembers (for simultaneous manipulation). Medtronic\ncontends that there was insufficient evidence, from the\nNeal Survey or otherwise, of surgeons’ using such a three-\nby-three linking step with the VCM kit. We disagree.\nThe Neal Survey asked about surgeons’ using “6 or more\nderotators linked by lateral and transverse connections\nand moved simultaneously,” J.A. 5454, and Dr. Barry’s\nexpert testified that the three-by-three linking step would\nbe carried out by surgeons following the instructions on\nthe VCM kit’s lid. See Barry, 230 F. Supp. 3d at 644–45.\n In sum, the jury could properly find that there was di-\nrect infringement of both patents at issue here, of a scope\nindicated by the Neal Survey.\n 2\n Substantial evidence also supports the finding that\nMedtronic induced infringement after issuance of Dr.\nBarry’s two patents. On appeal, Medtronic focuses on the\ntiming of its inducing actions to contend otherwise, argu-\ning that there was insufficient proof of inducement after\nthe patents’ issuance. We reject the contention, agreeing\n\nBARRY v. MEDTRONIC, INC. 41\n\n\n\nwith the district court. See Barry, 230 F. Supp. 3d at\n245–46.\n VCM was on the market four years before the ’358 pa-\ntent issued and seven years before the ’121 patent issued.\nThe Neal Survey asked whether surgeons “received any\ninformation or training (formal or informal) regarding\nderotation of multiple vertebrae using linked derotators\nfrom that source,” without asking the dates of the infor-\nmation received. J.A. 5455. There was extensive evi-\ndence about the training materials provided by Medtronic\nand its sales representatives. Importantly, every VCM kit\nthat went out had instructions on it, and the Medtronic\nsales force was constantly teaching surgeons the nuances\nof and techniques for using the devices. Dr. Lenke also\ntestified that he was still instructing surgeons on using\nthe VCM kit after 2010. On the evidence of record, we\nconclude, the jury could permissibly find inducement in\nthe period after patenting.\n F\n Medtronic challenges the jury’s damages award. But\nthe challenge is dependent on our accepting Medtronic’s\nchallenges to use of the Neal Survey to establish in-\nfringement, which we have rejected. We add here only\nthat the district court carefully considered Medtronic’s\nchallenges to the methodology of the Neal Survey and\ndenied Medtronic’s motion to exclude the survey, conclud-\ning that Medtronic’s criticisms went to the weight of the\nevidence, not its relevance and reliability. Barry, 230 F.\nSupp. 3d at 641. We see no abuse of discretion in that\nevidentiary ruling.\n III\n For the foregoing reasons, we reject Medtronic’s chal-\nlenges on appeal and affirm the judgment of the district\ncourt.\n Costs to Dr. Barry.\n\n42 BARRY v. MEDTRONIC, INC.\n\n\n\n\n AFFIRMED\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n MARK A. BARRY,\n Plaintiff-Appellee\n\n v.\n\n MEDTRONIC, INC.,\n Defendant-Appellant\n ______________________\n\n 2017-2463\n ______________________\n\n Appeal from the United States District Court for the\nEastern District of Texas in No. 1:14-cv-00104-RC, Chief\nJudge Ron Clark.\n ______________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361522/", "author_raw": "TARANTO, Circuit Judge."}, {"author": "PROST, Chief Judge, dissenting", "type": "dissent", "text": "PROST, Chief Judge, dissenting in part.\n I join the majority’s opinion regarding the ’121 patent.\nI respectfully dissent, however, from its conclusion re-\ngarding the ’358 patent.\n The facts are simple. More than one year before filing\nfor the ’358 patent, Dr. Barry successfully performed his\nclaimed surgical method on three different patients,\ncharging each his normal fee. Dr. Barry’s method was\n\n2 BARRY v. MEDTRONIC, INC.\n\n\n\n\nthus prima facie “on sale” or in “public use” before the\ncritical date under 35 U.S.C. § 102(b). 1\n The majority concludes otherwise based on Dr. Bar-\nry’s litigation testimony. Dr. Barry testified that, even\nthough he charged his patients and successfully per-\nformed the claimed method three times before the critical\ndate, he was not truly satisfied with his method until a\nfollow-up after the third surgery—a follow-up that oc-\ncurred just after the critical date. Never mind that Dr.\nBarry appreciated that his method worked as of a sur-\ngery’s completion. And never mind that successful follow-\nups for the first two surgeries occurred before the critical\ndate. Dr. Barry testified that he needed that third follow-\nup to be satisfied. On this basis, the majority concludes\nMedtronic failed to show that the asserted claims of the\n’358 patent are invalid under § 102(b)’s statutory bars.\n Both the Supreme Court’s and our precedent require\ninvalidating the asserted claims under § 102(b) as a\nmatter of law on this record. For this reason, I dissent.\n I\n A\n Whether an invalidating sale or public use has oc-\ncurred is a question of law reviewed de novo, based on\nunderlying facts reviewed for substantial evidence follow-\ning a jury verdict. Leader Techs., Inc. v. Facebook, Inc.,\n678 F.3d 1300, 1305 (Fed. Cir. 2012).\n The § 102(b) on-sale bar applies when, before the crit-\nical date, the claimed invention was (1) the subject of a\ncommercial offer for sale; and (2) ready for patenting.\n\n\n\n 1 All citations to sections of Title 35 are to their pre-\nAIA version.\n\nBARRY v. MEDTRONIC, INC. 3\n\n\n\nPfaff v. Wells Elecs., Inc., 525 U.S. 55, 67 (1998). 2 Med-\ntronic needed to prove the facts underlying these two\nconditions by clear and convincing evidence. See, e.g.,\nAllen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336,\n1352 (Fed. Cir. 2002).\n This case mostly concerns Pfaff’s ready-for-patenting\nprong. This prong may be satisfied “in at least two ways”:\nby proof of reduction to practice before the critical date; or\nby proof that before the critical date the inventor had\nprepared enabling drawings or other descriptions. 525\nU.S. at 67–68. And to establish a reduction to practice,\nwe have held that a patent challenger must show that the\ninventor “(1) constructed an embodiment or performed a\nprocess that met all the [claim] limitations and (2) deter-\nmined that the invention would work for its intended\npurpose.” In re Omeprazole Patent Litig., 536 F.3d 1361,\n1373 (Fed. Cir. 2008) (internal quotation marks omitted)\n(quoting z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340,\n1352 (Fed. Cir. 2007)).\n\n\n\n 2 I focus the rest of my discussion on § 102(b)’s on-\nsale bar as opposed to its public-use bar, though my\nultimate conclusion is the same for each. The public-use\nbar applies when, before the critical date, the claimed\ninvention was (1) in public use; and (2) ready for patent-\ning. Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d\n1374, 1379 (Fed. Cir. 2005). The ready-for-patenting\nprong is the same for both bars, and the public-use prong\nis met if the purported use was accessible to the public or\ncommercially exploited. Id. at 1379–80. The claimed\ninventions were commercially exploited for essentially the\nsame reasons that they were the subject of a commercial\nsale or offer for sale. I see no material difference between\nthe two bars in this case or in the way that evidence of\nexperimental use would affect their application.\n\n4 BARRY v. MEDTRONIC, INC.\n\n\n\n\n Even if a patent challenger makes out a prima facie\ncase of the on-sale bar, a patentee may negate the bar’s\napplication with evidence that the sale was primarily for\nexperimental purposes. See Electromotive Div. of Gen.\nMotors Corp. v. Transp. Sys. Div. of Gen. Elec. Co., 417\nF.3d 1203, 1210 (Fed. Cir. 2005) (proceeding in a “step-\nwise fashion,” analyzing first whether there were any pre-\ncritical-date sales and then whether any such sales were\nnegated by experimentation); Netscape Commc’ns Corp. v.\nKonrad, 295 F.3d 1315, 1321 (Fed. Cir. 2002) (“To estab-\nlish that an otherwise public use does not run afoul of\n[§] 102(b), it must be shown that the activity was substan-\ntially for purposes of experiment.” (internal quotation\nmarks omitted)); TP Labs., Inc. v. Prof’l Positioners, Inc.,\n724 F.2d 965, 971–72 (Fed. Cir. 1984).\n B\n The majority provides two bases for its conclusion\nthat the asserted claims are not invalid under § 102(b)\nand Pfaff. Majority Op. 11–12. First, it says that the\nclaimed methods were not ready for patenting before the\ncritical date because they did not satisfy this court’s\nreduction-to-practice test before that date. Majority Op.\n13–18. Second, it says that the three pre-critical-date\nsurgeries were for experimental purposes, thus negating\napplication of a § 102(b) bar. Majority Op. 24–31.\n Part II below concerns how Medtronic met Pfaff’s two-\nprong test. Specifically, Part II.A shows that Pfaff’s\ncommercial-sale prong was satisfied. Part II.B shows that\nPfaff’s ready-for-patenting prong was satisfied because\nour reduction-to-practice test was satisfied. Part II.C\nshows that, regardless of whether the claimed methods\nwere “reduced to practice,” they were ready for patenting.\n Part III concerns how the majority misapplies our re-\nduction-to-practice test. This part also addresses a con-\nfusing aspect of our case law that the majority’s opinion\n\nBARRY v. MEDTRONIC, INC. 5\n\n\n\nperpetuates. Part IV concerns the experimental-use\ndoctrine.\n II\n The key facts are undisputed. The ’358 patent’s criti-\ncal date is December 30, 2003. Dr. Barry performed three\npre-critical-date surgeries that practiced all the limita-\ntions of the asserted ’358 patent claims. These surgeries\noccurred on August 4, 2003; August 5, 2003; and October\n14, 2003. Dr. Barry charged his normal fee for them.\n A\n The foregoing evidence establishes Pfaff’s commercial-\nsale prong for each of the three pre-critical-date surgeries.\nSee Plumtree Software, Inc. v. Datamize, LLC, 473 F.3d\n1152, 1163 (Fed. Cir. 2006) (“[P]erforming the patented\nmethod for commercial purposes before the critical date\nconstitutes a sale under § 102(b).”); In re Kollar, 286 F.3d\n1326, 1333 (Fed. Cir. 2002) (“[P]erforming the process\nitself for consideration would . . . trigger the application of\n§ 102(b).”). Therefore, absent sufficient evidence that\nthese surgeries were done for primarily experimental\npurposes, they would satisfy the first Pfaff prong as a\nmatter of law.\n B\n Medtronic also established that the inventions were\nreduced to practice no later than the second surgery’s\ncompletion, and therefore were ready for patenting by\nthen. Pfaff, 525 U.S. at 67–68 (identifying reduction to\npractice as a basis for establishing the ready-for-patenting\nprong).\n Reduction to practice is a question of law we review de\nnovo. DSL Dynamic Scis. Ltd. v. Union Switch & Signal,\nInc., 928 F.2d 1122, 1125 (Fed. Cir. 1991). To establish a\nreduction to practice, we have held that a patent chal-\nlenger must show that the inventor (1) constructed an\n\n6 BARRY v. MEDTRONIC, INC.\n\n\n\n\nembodiment or performed a process that met all the claim\nlimitations and (2) determined that the invention would\nwork for its intended purpose. In re Omeprazole, 536 F.3d\nat 1373. It is undisputed that each of the three pre-\ncritical-date surgeries met all the claim limitations. The\nonly question is when Dr. Barry determined that his\nmethods worked for their intended purpose.\n The claims state the inventions’ intended purpose:\n“the amelioration of aberrant spinal column deviation\nconditions.” ’358 patent col. 6 ll. 7–8. Dr. Barry testified\nthat such amelioration happened during surgery:\n Q. And there is a term that is used in the patent\n that is not a term that is familiar to me as a lay-\n person, but it’s “amelioration.” Does that mean\n correction?\n A. Yes.\n Q. Okay. So, it happens right there in the operat-\n ing room, on the spot, true?\n A. The surgical correction of the rotated vertebrae\n back to the midline, yeah, happens with that ma-\n neuver. Yes.\nJ.A. 1369–70. Dr. Barry’s expert testified similarly.\nJ.A. 1960 (“Q. And at least for the vertebrae, that dero-\ntation problem, you’ll know if there was at least some\namelioration when the surgery is over. A. Fair enough.”)\n Once this amelioration happened, Dr. Barry secured\nthe derotated vertebrae in place with rods and screws, as\nthe claims require:\n Q. And can you explain for the jury, please, what\n happens once you get the vertebrae derotated into\n the proper alignment? How do you hold it there?\n A. Well, as mentioned, you have screws up and\n down throughout that area of that curve. Once\n\nBARRY v. MEDTRONIC, INC. 7\n\n\n\n those vertebrae are rotated back into the midline\n and you have the correction that you are happy\n with, you are comfortable with, you lock down the\n screws to the two rods. . . . So, that’s at the end of\n the procedure where all of the implants—screws,\n rods, and the setscrews—are all tightened down,\n locked down.\nJ.A. 1158–59 (emphasis added); see ’358 patent col. 6\nll. 52–56.\n Thus, by no later than the second surgery’s comple-\ntion, Dr. Barry appreciated that his invention worked for\nits intended purpose—to ameliorate aberrant spinal\ncolumn deviation conditions. 3 His inventions were re-\nduced to practice by then as a matter of law.\n C\n Though sufficient, reduction to practice is not neces-\nsary for § 102(b)’s on-sale bar to apply. Pfaff, 525 U.S. at\n66 (concluding that it is unnecessary “to engraft a reduc-\ntion to practice element into the meaning of the term\n‘invention’ as used in § 102(b)”). Rather, the standard is\nwhether the invention was “ready for patenting”—that is,\nwhether the inventor “could have obtained a patent.” Id.\nat 67–68; see id. at 62–63.\n\n\n\n\n 3 Because the claims’ preamble refers to the amelio-\nration of “aberrant spinal column deviation conditions”\n(plural), and because Dr. Barry testified that his patients\nhad different types of conditions, I place the time of\nreduction to practice at the completion of the second\nsurgery—not the first. Given that both of the first two\nsurgeries (and their respective follow-ups) occurred before\nthe critical date, the difference is immaterial here.\n\n8 BARRY v. MEDTRONIC, INC.\n\n\n\n\n The record demonstrates that, regardless of when his\ninventions were reduced to practice, Dr. Barry could have\nobtained a patent before the critical date. By August 5,\n2003, he had already performed the claimed methods on\nwhat he contends were two different types of aberrant\nspinal column deviation conditions. There was at least\nsome amelioration of those conditions by the end of the\nsurgeries. At this point, Dr. Barry could have satisfied\nthe enablement and written-description requirements of\n§ 112 and credibly claimed utility under § 101. See Alcon\nResearch Ltd. v. Barr Labs., Inc., 745 F.3d 1180, 1189–90\n(Fed. Cir. 2014) (noting that “a patent does not need to\nguarantee that the invention works for a claim to be\nenabled” and that “[t]here is no requirement that the\ndisclosure contain either examples or an actual reduction\nto practice” (internal quotation marks omitted)); CFMT,\nInc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1339 (Fed. Cir.\n2003) (describing the relationship between enablement\nand utility and concluding that, “[b]ecause the preamble\nterm ‘cleaning’ means only ‘removal of contaminants,’ not\nremoval of all contaminants or removal of contaminants\naccording to [a] commercial standard, the inventor shows\nutility and enables the invention by disclosing ‘removal of\ncontaminants’”).\n By focusing only on reduction to practice, the majority\nmisses Pfaff’s point—readiness for patenting is broader\nthan reduction to practice and is meant to answer wheth-\ner the inventor could have obtained a patent on his or her\ninvention. This court captured a similar insight even\nbefore Pfaff. We noted that “the thrust of the on-sale\ninquiry is whether the inventor thought he had a product\nwhich could be and was offered to customers, not whether\nhe could prevail under the technicalities of reduction to\npractice appropriate to determining priority of invention\nunder interference law.” Paragon Podiatry Lab., Inc. v.\nKLM Labs., Inc., 984 F.2d 1182, 1187 n.5 (Fed. Cir. 1993);\ncf. Pfaff, 525 U.S. at 60–61 (observing that neither § 100\n\nBARRY v. MEDTRONIC, INC. 9\n\n\n\nnor § 101 mentions “reduction to practice” and that the\nstatute’s only specific reference to that term is in § 102(g),\nwhich concerns resolving priority disputes between two\ncompeting claimants to a patent).\n The same insights apply here. Regardless of whether\nDr. Barry satisfied our reduction-to-practice test as of the\nsecond surgery’s completion, his inventions were ready for\npatenting by then.\n III\n The majority disagrees that Dr. Barry’s inventions\nwere ready for patenting before the critical date. The\nconcept of an “intended purpose” is central to the majori-\nty’s analysis and conclusion.\n First, the majority reasons that Dr. Barry’s claimed\nmethods were not ready for patenting until they were\nreduced to practice, and that they were not reduced to\npractice until Dr. Barry knew that they would work for\ntheir intended purpose. The majority accepts that Dr.\nBarry needed the third follow-up to determine that the\ninventions worked for their intended purpose. Majority\nOp. 13; see id. at 14–19. This is error, because the majori-\nty asks more of the “intended purpose” than what the\nclaims and specification define it to be.\n Second, the majority finds support in cases where we\nhave discussed “intended purpose” in the context of the\nexperimental-use doctrine. But that doctrine contem-\nplates a broader conception of “intended purpose” than\nwhat is required to show reduction to practice. State-\nments in our case law that loosely refer to an “intended\npurpose” are, regrettably, confusing. But the majority\nperpetuates the confusion in reaching its result. And its\napproach threatens to render superfluous a substantial\nbody of law starting with the Supreme Court’s seminal\nCity of Elizabeth case.\n I discuss these two problems in turn.\n\n10 BARRY v. MEDTRONIC, INC.\n\n\n\n\n A\n To know whether and when the inventor determined\nthat the invention would work for its intended purpose for\nreduction to practice, we must first know what the “in-\ntended purpose” is. Although the testing necessary to\ndetermine whether an invention would work for its in-\ntended purpose is a factual question, z4 Techs., 507 F.3d\nat 1352, defining the intended purpose is a legal question\nbased on the claims and specification, see Manning v.\nParadis, 296 F.3d 1098, 1102–04 (Fed. Cir. 2002).\n Here, the claims define the intended purpose as “the\namelioration of aberrant spinal column deviation condi-\ntions.” ’358 patent col. 6 ll. 7–8. As both Dr. Barry and\nhis expert testified, that amelioration is apparent and\nappreciated during a surgery when the surgeon rotates\nand straightens the vertebrae and then locks them into\nplace. See supra Part II.B. That testimony, along with\nthe undisputed fact that the pre-critical-date surgeries\nmet all the claim limitations, should end the reduction-to-\npractice inquiry.\n To conclude otherwise, the majority must conceive of a\nmore exacting intended purpose—one that, based on Dr.\nBarry’s testimony, includes clearing a follow-up at a\ncertain time and working across three different types of\nconditions (not just two). In doing so, the majority legally\nerrs by looking beyond the claims and the specification to\neffectively define the “intended purpose” for reduction to\npractice. 4 Conner v. Joris, 241 F.2d 944, 947 (CCPA 1957)\n\n\n\n 4 The majority also references Dr. Barry’s expert’s\ntestimony as supporting Dr. Barry. Majority Op. 16–17.\nBut much of that testimony concerns what the expert\nthought Dr. Barry was thinking, J.A. 2899, which adds\nvery little to an objective, patent-based assessment of\n\nBARRY v. MEDTRONIC, INC. 11\n\n\n\n(“In going beyond both the [claim] and the specification to\nglean [an inventor’s] intended purpose the [B]oard has\ngone far beyond any position supported by the cases cited\nor any that we have been able to find.”); see Land v.\nRegan, 342 F.2d 92, 98–99 (CCPA 1965) (criticizing going\nbeyond the claims and specification to glean an inven-\ntion’s intended purpose); cf. z4 Techs., 507 F.3d at 1352\n(finding error in the district court’s definition of intended\npurpose as “stop[ping] piracy” because the claim language\nindicated a purpose only of reducing piracy).\n To be sure, the majority suggests that the ’358 patent\ndescribes follow-up time and the three-surgery require-\nment as part of the inventions’ intended purpose. See\nMajority Op. 18–19 (referencing a “common-sense ap-\nproach to identifying the intended purpose [that] is rooted\nin the preamble claim language as well as the specifica-\ntion”). I am unpersuaded.\n The claims say nothing about follow-up time. They\nsay, “the amelioration of aberrant spinal column deviation\nconditions.” ’358 patent col. 6 ll. 7–8. The district court\nconcluded that “amelioration” would be accorded its\ncustomary meaning, which a person of ordinary skill in\nthe art would understand as “to improve.” J.A. 33–34.\nBoth Dr. Barry and his expert testified that the aberrant\nspinal column deviation conditions were ameliorated, or\n\n\nwhat the inventions’ intended purpose is. And, insofar as\nthe majority relies on standards for peer-reviewed publi-\ncations as they relate to follow-up time, Majority Op. 17, I\nam not convinced that those standards are, or should be,\nrelevant to reduction to practice or readiness for patent-\ning under the U.S. patent laws. For instance, Dr. Barry’s\nexpert testified that such publications require two years’\nfollow-up time, J.A. 2900, but Dr. Barry successfully filed\nfor a patent well before that.\n\n12 BARRY v. MEDTRONIC, INC.\n\n\n\n\nimproved, as of a surgery’s completion. And Dr. Barry\ntestified that he appreciated as much at the time. Supra\nPart II.B.\n The specification also says nothing relating follow-up\ntime to the inventions’ intended purpose. The majority\nreferences two portions of the specification in its discus-\nsion, but neither supports its position. First, it cites the\nbackground section. Majority Op. 18–19 (citing ’358\npatent cols. 1–2). This section discusses prior-art treat-\nment regimens and problems from untreated scoliosis; it\nsays nothing about follow-up criteria as it relates to the\nintended purpose of Dr. Barry’s inventions. Second, the\nmajority refers to the four “objects of the invention”\narticulated in the summary of the invention. Majority\nOp. 18 (citing ’358 patent col. 3 ll. 10–34). Again, these\nobjectives say nothing about follow-up time. Quite the\ncontrary; they describe what happens in the operating\nroom—for example, (1) “facilitat[ing] the application of\nsignificant derotational forces to individual vertebra, with\nsubstantially reduced risk for fracture thereof upon\napplication of such forces,” ’358 patent col. 3 ll. 23–25\n(emphasis added); and (2) “facilitat[ing] the application of\nforces to vertebrae of affected spinal column segments en\nbloc, thereby distributing otherwise potentially injurious\nforces in a manner for safely achieving over-all spinal\ncolumn correction or derotation,” id. at col. 3 ll. 30–33\n(emphasis added).\n Nor does the intended purpose contemplate working\nacross three different types of curvatures, as opposed to\njust two. The claims’ body requires amelioration of “an\naberrant spinal column deviation condition,” ’358 patent\ncol. 6 ll. 35–36 (emphasis added), and the preamble men-\ntions only “amelioration of aberrant spinal column devia-\ntion conditions,” id. at col. 6 ll. 7–8. The majority\nidentifies nothing in the patent itself—whether in the\nclaims or specification—that explains how working across\nthree, not just two, curvatures is part of the inventions’\n\nBARRY v. MEDTRONIC, INC. 13\n\n\n\nintended purpose. Therefore, even if I were to accept that\nthe ’358 patent’s language made follow-up time relevant\nto the inventions’ intended purpose, I would still fail to\nunderstand the legal relevance of Dr. Barry’s alleged need\nfor the third surgery’s follow-up, as opposed to just the\nfirst two, to determine whether his invention worked for\nits intended purpose (so as to establish reduction to\npractice).\n The majority suggests that Medtronic “has not mean-\ningfully presented, let alone supported” the argument\nthat follow-ups on two surgeries (covering two conditions)\nwere enough to establish reduction to practice. Majority\nOp. 19 n.7. I disagree. The majority acknowledges that\nMedtronic’s opening brief argued that the two follow-ups\nfrom the August surgeries were enough. Id. Dr. Barry\nresponded that he needed to test his invention on “differ-\nent anatomies” and that it was only after the third follow-\nup that he knew whether he had successfully treated the\n“three most common[] curve types.” Dr. Barry’s Resp. Br.\n25–26 (alteration in original). Medtronic replied:\n [A]n invention works for its intended purpose as\n long as there is some demonstration of the worka-\n bility or utility of the claimed invention. A\n demonstration of its use in two patients certainly\n qualifies. After all, the claims are not confined to\n methods that ameliorate every patient’s spinal\n deviation condition.\nMedtronic’s Reply Br. 8 (citation and internal quotation\nmarks omitted); see id. at 8–9 (citing Dr. Barry’s testimo-\nny regarding the surgeries, their follow-ups, and the\npatients’ curve types). This straightforward argument is\nbefore us. Not even Dr. Barry has urged otherwise.\n If Dr. Barry wanted to claim or describe his inven-\ntions’ intended purpose differently—for example, with\nreference to satisfying a standard of care that contem-\nplates a certain amount of follow-up time, or versatility\n\n14 BARRY v. MEDTRONIC, INC.\n\n\n\n\nacross more than two curvature types—he could have\ndone so. But his claims and specification say nothing of\nthe sort. Given his testimony that before the critical date\nhe practiced his invention (as he later claimed it) and\nachieved its purpose (as he later described it), his inven-\ntion was reduced to practice before then as a matter of\nlaw.\n B\n To find Dr. Barry’s inventions not ready for patenting,\nthe majority analogizes to several cases it says support its\nview of the inventions’ intended purpose. Majority Op.\n20–22. Its analysis of Pfaff’s ready-for-patenting prong\nreflects some confusion in our case law regarding the\nrelationship among reduction to practice, an invention’s\nintended purpose, and the experimental-use doctrine.\n Again, reduction to practice requires proof that the\ninventor determined that the invention would work for its\nintended purpose. In re Omeprazole, 536 F.3d at 1373.\nTherefore, showing readiness for patenting (at least, via\nreduction to practice) requires proof that the inventor\ndetermined that the invention would work for its intended\npurpose. Yet we have also said that a use may be experi-\nmental if it is to “determine whether an invention will\nwork for its intended purpose.” Polara Eng’g Inc. v.\nCampbell Co., 894 F.3d 1339, 1348 (Fed. Cir. 2018) (quot-\ning Clock Spring, L.P. v. Wrapmaster, Inc., 560 F.3d 1317,\n1327 (Fed. Cir. 2009)). But if that determination has not\nalready been made, then the invention would not be ready\nfor patenting in the first place. Therefore, any considera-\ntion of whether a use was experimental would be super-\nfluous, as there would be no prima facie case of a § 102(b)\nbar to begin with. This is how the majority resolves the\ncase. See Majority Op. 23.\n I am skeptical, however, of an approach that would\nrender the experimental-use doctrine superfluous based\nupon the same considerations of an “intended purpose”\n\nBARRY v. MEDTRONIC, INC. 15\n\n\n\nbeing considered elsewhere. 5 Instead of rendering this\ndoctrine superfluous, the better and more accurate view is\nthat the considerations of an “intended purpose” are not\nreally the same as between reduction to practice and\nexperimental use.\n The experimental-use doctrine exists to afford an in-\nventor the ability to experiment with his or her invention\nvia what would otherwise constitute a barring sale or\npublic use. The focus is on the inventor’s intent in mak-\ning the sale or using the invention publicly; if it is for\nprimarily experimental purposes, we do not consider the\nsale or use barring. See Electromotive Div., 417 F.3d at\n1211. Several factors have emerged to evaluate that\nintent—e.g., the amount of control the inventor main-\ntained, whether there was a secrecy obligation, the degree\nof commercial exploitation, and whether customers were\naware the inventor was experimenting. Id. at 1212–14.\nSuch factors are unrelated to how far along the invention\nis in terms of reduction to practice. Rather, they bear on\nthe inventor’s intent.\n Given these differences, a subjective, expansive un-\nderstanding of an invention’s “intended purpose”—one\nthat accommodates the good-faith, perfectionist inven-\ntor—is considered as part of the experimental-use inquiry.\nThis is the way the Supreme Court addressed the issue in\nthe City of Elizabeth pavement case:\n Durability was one of the qualities to be attained.\n [The inventor] wanted to know whether his\n pavement would stand, and whether it would re-\n sist decay. Its character for durability could not\n\n\n\n 5 I am all the more skeptical given that Pfaff explic-\nitly reaffirmed the continued vitality of the experimental-\nuse doctrine. 525 U.S. at 64–65, 67.\n\n16 BARRY v. MEDTRONIC, INC.\n\n\n\n\n be ascertained without its being subjected to use\n for a considerable time. He subjected it to such\n use, in good faith, for the simple purpose of ascer-\n taining whether it was what he claimed it to be.\nCity of Elizabeth v. Am. Nicholson Pavement Co., 97 U.S.\n126, 136 (1877); id. at 137 (justifying, on policy grounds,\ndelaying filing for a patent when the delay is “occasioned\nby a bona fide effort to bring [the] invention to perfection,\nor to ascertain whether it will answer the purpose intend-\ned”).\n In fact, most of the cases the majority analogizes to in\nits not-ready-for-patenting discussion actually analyze\nthis subjective, outside-the-patent-language “intended\npurpose” as part of experimental use. Majority Op. 20–\n22; see Polara, 894 F.3d at 1349 (“The jury could have\nproperly based its finding of experimental use on the need\nfor testing to ensure the durability and safety of the\nclaimed [invention].”); Manville Sales Corp. v. Paramount\nSys., Inc., 917 F.2d 544, 550 (Fed. Cir. 1990) (“Because\n[the inventor] . . . did not offer to sell the [invention] to\nanyone else until after it was tested in the cold, rain,\nsnow, and wind—an environment in which it was de-\nsigned to operate—we must agree with the district court\nthat experimentation, and not profit, was the primary\nmotive behind [the use].”); TP Labs., 724 F.2d at 972.\n Thus, if an inventor’s pre-critical-date sale or public\nuse is to test an unclaimed or undescribed, yet inherent,\nfeature of an invention (e.g., durability, safety), such\ntesting may support the inventor’s overall claim of exper-\nimental use and thereby avoid invalidity. See Electromo-\ntive Div., 417 F.3d at 1211–12. But neither this testing\nnor the inventor’s assertions regarding his or her subjec-\ntive desire for such testing should control the ready-for-\npatenting inquiry. Pfaff’s “ready for patenting” does not\nmean whenever the inventor was ready to file for a pa-\ntent.\n\nBARRY v. MEDTRONIC, INC. 17\n\n\n\n IV\n Given my conclusion that Medtronic made a prima fa-\ncie showing of both Pfaff prongs, I must address whether\nDr. Barry presented enough evidence that he conducted\nthe three surgeries with experimental purpose sufficient\nto negate an on-sale bar. Although the majority does not\naddress the parties’ respective burdens in this context, I\naddress them briefly. I then address the evidence.\n A\n The Supreme Court addressed the burdens issue in\nSmith & Griggs Manufacturing Co. v. Sprague:\n In considering the evidence as to the alleged prior\n use for more than two years of an invention,\n which, if established, will have the effect of inval-\n idating the patent, and where the defense is met\n only by the allegation that the use was not a pub-\n lic use in the sense of the statute, because it was\n for the purpose of perfecting an incomplete inven-\n tion by tests and experiments, the proof, on the\n part of the patentee, the period covered by the use\n having been clearly established, should be full,\n unequivocal, and convincing.\n123 U.S. 249, 264 (1887) (emphasis added). The Court\nreiterated the rule in Root v. Third Avenue Railroad Co.,\n146 U.S. 210, 226 (1892).\n Over forty years later, the Second Circuit interpreted\nand applied this language. With Judge Learned Hand\nwriting, the court concluded that, on the issue of experi-\nmental purpose, “the patentee has the burden, once the\n[prior] use is proved, and he must establish it by stronger\nproof than in ordinary civil suits.” Aerovox Corp. v.\nPolymet Mfg. Corp., 67 F.2d 860, 861 (2d Cir. 1933)\n(Hand, J.). The court noted that the First, Third, and\nSeventh Circuits all read Smith & Griggs the same way.\nId. (collecting cases). Indeed, the court “should have\n\n18 BARRY v. MEDTRONIC, INC.\n\n\n\n\nsupposed this settled” but for contrary language in a\nSixth Circuit case, Austin Machinery Co. v. Buckeye\nTraction Ditcher Co., which said that “the legal and heavy\nburden of proof as to all the elements involved continues\nuntil the end upon one who attacks the patent grant.” 13\nF.2d 697, 700 (6th Cir. 1926). Although Judge Hand saw\nmerit in both positions, he concluded that the majority\nview was authoritative “until the Supreme Court decides\notherwise.” Aerovox, 67 F.2d at 861. The Supreme Court\nhas not decided otherwise.\n This court has, though. In TP Laboratories, Inc. v.\nProfessional Positioners, Inc., the court addressed the\nburdens applicable to a patent challenger’s § 102(b)\ndefense and a patentee’s corresponding assertion of exper-\nimental use. It followed Austin and held that “the burden\nof proof [is] upon the party attacking the validity of the\npatent, and that burden of persuasion does not shift at\nany time to the patent owner.” 724 F.2d at 971; id. at 971\nn.3 (citing Austin, 13 F.2d at 700). Although the court\nacknowledged Smith & Griggs in a footnote, it saw no\nconflict there. 724 F.2d at 971 & n.3.\n The TP Laboratories court further opined that, even if\nSmith & Griggs expressed a contrary view—i.e., one that\n“impose[d] the ultimate burden of persuasion on the\npatent holder rather than merely the burden of going\nforward with countering evidence”—the Supreme Court’s\nview would not be “tenable” in light of the subsequently\nenacted statutory presumption of validity in 35 U.S.C.\n§ 282. 724 F.2d at 971 n.3. This reasoning was question-\nable even at the time. As several commentators noted,\nthe presumption of validity long predated the 1952 Patent\nAct. 6 The court’s reasoning has not improved with age.\n\n\n E.g., William C. Rooklidge & Stephen C. Jensen,\n 6\n\nCommon Sense, Simplicity and Experimental Use Nega-\n\nBARRY v. MEDTRONIC, INC. 19\n\n\n\nSee Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 102\n(2011) (“[B]y the time Congress enacted § 282 and de-\nclared that a patent is ‘presumed valid,’ the presumption\nof patent validity had long been a fixture of the common\nlaw.” (citing Radio Corp. of Am. v. Radio Eng’g Labs.,\nInc., 293 U.S. 1 (1934))).\n Thus, in TP Laboratories, the patentee’s burden of\npersuasion on experimental use became a burden of\nproduction: “[I]f a prima facie case is made of public use,\nthe patent owner must be able to point to or must come\nforward with convincing evidence to counter that show-\ning.” 724 F.2d at 971 (emphasis added). And while TP\nLaboratories at least required a patentee to come forward\nwith “convincing” evidence of experimental use, we later\nheld that this does not imply a heightened standard, such\nas one akin to “clear and convincing.” Lisle Corp. v. A.J.\nMfg. Co., 398 F.3d 1306, 1316 (Fed. Cir. 2005). But cf. In\nre Dybel, 524 F.2d 1393, 1401 (CCPA 1975) (holding that,\nin light of a prima facie case of an on-sale bar, the appli-\ncant “had the burden of establishing by clear and convinc-\ning evidence that such sales were for experimental\npurposes”).\n B\n Even under the burden-of-production approach set\nforth in TP Laboratories, I conclude that Dr. Barry’s\n\n\n\ntion of the Public Use and On Sale Bars to Patentability,\n29 J. Marshall L. Rev. 1, 44–45 (1995) (cited favorably in\nPfaff, albeit for a different proposition); see also 2A Chi-\nsum on Patents § 6.02[8], p. 6-292 n.41 (2017) (noting that\n“[t]he court’s basis for this holding is questionable” given\nthat “[t]he enactment of [§] 282 on the presumption of\nvalidity in 1952 was generally thought to have codified\nprior law”).\n\n20 BARRY v. MEDTRONIC, INC.\n\n\n\n\nevidence of experimental purpose was insufficient as a\nmatter of law to negate a bar.\n Most of Dr. Barry’s evidence of experimental purpose\nas to the three pre-critical-date surgeries is just his own\nafter-the-fact testimony. See Majority Op. 26–27 (refer-\nencing Dr. Barry’s testimony). 7 “[C]ertain things are\nsettled. Significantly, an inventor’s subjective intent to\nexperiment cannot establish that his activities are, in\nfact, experimental.” Electromotive Div., 417 F.3d at 1212.\nIndeed, we have repeatedly noted the minimal eviden-\ntiary value of an inventor’s after-the-fact, litigation-\ninspired testimony as to experimental intent. E.g., La-\nBounty Mfg., Inc. v. ITC, 958 F.2d 1066, 1071 (Fed. Cir.\n1992) (“An inventor’s protestation of an intent to experi-\nment, expressed for the first time during litigation, is of\nlittle evidentiary value, at best.”); see also Sinskey v.\nPharmacia Ophthalmics, Inc., 982 F.2d 494, 499 (Fed.\nCir. 1992) (“[A]fter-the-fact testimony of an inventor’s\nsubjective ‘experimental intent’ is entitled to minimal\n\n\n\n 7 The majority suggests that other people were\naware that Dr. Barry was experimenting, Majority Op.\n27–28, but its record citations do not withstand scrutiny.\nDr. Barry’s doctor colleague testified that she understood\nhim to be working on a technique sometime “in the 2002–\n2004 time frame.” J.A. 1733. This testimony is vague\nand says nothing about these particular surgeries, much\nless their experimental purpose. Dr. Barry’s nurse col-\nleague said that it was “exciting when [the] team uses\n[the] levers to correct the curve,” but said nothing about\nwhether she understood the procedure to be experimental.\nJ.A. 1370. And testimony concerning the DePuy medical-\ndevice representative relates only to the development of\nsurgical tools, not these particular surgeries or whether\nthey were experimental. J.A. 1178–79.\n\nBARRY v. MEDTRONIC, INC. 21\n\n\n\nweight.”), abrogated on other grounds by Pfaff, 525 U.S.\n55 (1998); TP Labs., 724 F.2d at 972 (similar).\n Rather, we generally look to objective evidence to de-\ntermine whether a sale was for experimentation. Elec-\ntromotive Div., 417 F.3d at 1212–13 (listing various\nobjective indicia); see Lough v. Brunswick Corp., 86 F.3d\n1113, 1121 (Fed. Cir. 1996); In re Smith, 714 F.2d 1127,\n1135 (Fed. Cir. 1983). The record is thin on objective\nevidence indicating such a purpose.\n To begin, Dr. Barry kept no records reflecting any ex-\nperimental intent as to these surgeries. We have ob-\nserved that the absence of such records weighs against a\nfinding of experimental use. See Lough, 86 F.3d at 1121\n(finding the lack of recordkeeping important even with an\ninventor less sophisticated than Dr. Barry); see also Clock\nSpring, 560 F.3d at 1328; Netscape, 295 F.3d at 1322.\n Dr. Barry also charged his normal fee for the surger-\nies. The majority concludes that this fact points toward a\nconclusion of experimental use. Majority Op. 27–28. Yet\nI cannot see how charging one’s normal fee makes the sale\nlook like anything other than a normal sale. See Electro-\nmotive Div., 417 F.3d at 1217; Sinskey, 982 F.2d at 499.\nHad Dr. Barry charged a premium, a claim of experi-\nmental purpose would be difficult to maintain. Had he\ncharged less, it might suggest experimental purpose—or\nit might not. Compare EZ Dock, Inc. v. Schafer Sys., Inc.,\n276 F.3d 1347, 1352 (Fed. Cir. 2002) (citing, in support of\na conclusion of experimental use, fact that customer did\nnot pay full market price for the product and received free\nequipment and free installation), with Petrolite Corp. v.\nBaker Hughes Inc., 96 F.3d 1423, 1428 (Fed. Cir. 1996)\n(finding evidence of a discount not determinative because\na patentee “may have created an on-sale bar despite\nlosing money on a sale” (citation omitted)). Either way, I\ndisagree with the majority’s conclusion that charging the\nnormal fee permits an inference of experimental use.\n\n22 BARRY v. MEDTRONIC, INC.\n\n\n\n\nMajority Op. 27–28. At best, this fact is neutral for Dr.\nBarry. But the more natural inference is one of a sale for\ncommercial purposes.\n The majority places weight on the fact that Dr. Barry\nmaintained control over his method, but I find it hard to\ndo the same. Control can be a useful objective indicator of\nexperimental intent when it serves to distinguish between\na commercial sale and one that is experimental. For\nexample, if an inventor sells his or her inventive product\nbut retains some control over its use, that scenario looks\ndifferent from a normal sale—thus, more likely experi-\nmental. Similarly, if an inventor sells his or her product\nbut forgoes an opportunity to retain some control, that\nscenario looks more like a normal sale. In this case,\nhowever, the nature of the inventor (a practicing surgeon)\nand his invention (a surgical method) means the inventor\nwas likely going to retain sole control over the method for\nas long as he was practicing it. Although Dr. Barry’s\ncontrol over his method is consistent with experimental\nintent, given these circumstances, I cannot place much\nweight on this consideration.\n Dr. Barry also did not inform his patients that he was\nperforming his surgical method for experimental purpos-\nes. The majority dedicates considerable discussion to\nminimizing the importance of this fact. It carefully parses\na statement in one of our prior cases, LaBounty, and finds\nthat informing a customer of experimental intent is only\nrelevant or necessary if at least two premises exist:\n(1) the absence of other objective evidence of experimenta-\ntion; and (2) the placement of the invention outside of the\ninventor’s control. Majority Op. 29–30. Respectfully, I\nbelieve the majority’s two-necessary-premises require-\nment over-reads LaBounty and overcomplicates what\nshould be a simple observation: if an inventor tells his or\nher customer that the invention is for experimental\npurposes, it is more likely that the inventor’s intent was\nexperimental; if he or she does not, it is less likely. Re-\n\nBARRY v. MEDTRONIC, INC. 23\n\n\n\ngardless, even if I were to accept that informing custom-\ners of experimental intent is more important when control\nis lost, that would not mean it is irrelevant when control\nis maintained. It remains useful as an objective indicator\nof the inventor’s contemporaneous intent.\n In Dr. Barry’s case, all of the foregoing considera-\ntions—the lack of records indicating experimentation, the\nnormal fee charged, the control exercised, and the failure\nto inform customers of experimental purpose—would look\nthe same if the surgeries were for commercial purposes.\nThe only thing that affirmatively suggests these surgeries\nwere experimental is that Dr. Barry said they were—after\nthe fact, during litigation. As a matter of law, that is\ninsufficient to show experimental purpose.\n * * *\n The record in this case shows that Dr. Barry waited\ntoo long to file for the ’358 patent and that the on-sale bar\napplies. I respectfully dissent from the majority’s contra-\nry conclusion.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4361522/", "author_raw": "PROST, Chief Judge, dissenting"}]} | PROST | MOORE | TARANTO | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584269/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Mark A. BARRY, Plaintiff-Appellee v. MEDTRONIC, INC., Defendant-Appellant\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-24\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n MARK A. BARRY,\n Plaintiff-Appellee\n\n v.\n\n MEDTRONIC, INC.,\n Defendant-Appellant\n ______________________\n\n 2017-2463\n ______________________\n\n Appeal from the United States District Court for the\nEastern District of Texas in No. 1:14-cv-00104-RC, Chief\nJudge Ron Clark.\n ______________________\n\n Decided: January 24, 2019\n ______________________\n\n DAVID CLAY HOLLOWAY, Kilpatrick Townsend &\nStockton LLP, Atlanta, GA, argued for plaintiff-appellee.\nAlso represented by COURTNEY DABBIERE; ADAM HOWARD\nCHARNES, Dallas, TX; ERWIN CENA, San Diego, CA; DARIO\nALEXANDER MACHLEIDT, Seattle, WA; SEAN PAUL\nDEBRUINE, Law Office of Sean DeBruine, Menlo Park,\nCA.\n\n SETH P. WAXMAN, Wilmer Cutler Pickering Hale and\nDorr LLP, Washington, DC, argued for defendant-\nappellant. Also represented by BRITTANY BLUEITT AMADI;\nMARK CHRISTOPHER FLEMING, Boston, MA; MARY-OLGA\n\n2 BARRY v. MEDTRONIC, INC.\n\n\n\n\nLOVETT, Greenberg Traurig LLP, Houston, TX; JULIE\nPAMELA BOOKBINDER, SCOTT JOSEPH BORNSTEIN, ALLAN A.\nKASSENOFF, RICHARD CHARLES PETTUS, New York, NY.\n ______________________\n\n Before PROST, Chief Judge, MOORE and TARANTO,\n Circuit Judges.\n Opinion for the court filed by Circuit Judge TARANTO.\n Opinion dissenting in part filed by Chief Judge PROST.\nTARANTO, Circuit Judge.\n Dr. Mark Barry brought this action against Medtron-\nic, Inc., alleging that Medtronic induced surgeons to\ninfringe U.S. Patent Nos. 7,670,358 and 8,361,121, which\nDr. Barry owns and which name him as the sole inventor.\nThe jury found infringement of method claims 4 and 5 of\nthe ’358 patent and system claims 2, 3, and 4 of the ’121\npatent, rejected Medtronic’s several invalidity defenses,\nand awarded damages. In post-trial rulings on the jury\nissues, Barry v. Medtronic, Inc., 230 F. Supp. 3d 630 (E.D.\nTex. 2017) (Barry), the district court upheld the verdict as\nrelevant here—rejecting challenges as to induced in-\nfringement and associated damages for domestic conduct,\nid. at 640–47, 650–51, invalidity of the asserted ’358\npatent claims under the public-use and on-sale bars, id. at\n653–59, and invalidity of all asserted claims due to anoth-\ner’s prior invention, id. at 659–63. The district court then\nrejected Medtronic’s inequitable-conduct challenge, Barry\nv. Medtronic, Inc., 245 F. Supp. 3d 793, 823 (E.D. Tex.\n2017) (Inequitable Conduct Op.), and, in a ruling not\nseparately challenged on appeal, enhanced damages by\ntwenty percent while denying attorney’s fees to Dr. Barry,\nBarry v. Medtronic, Inc., 250 F. Supp. 3d 107, 111, 119\n(E.D. Tex. 2017) (Enhancement Op.). Medtronic appeals\non numerous grounds, principally concerning the public-\nuse and on-sale statutory bars, but also concerning prior\n\nBARRY v. MEDTRONIC, INC. 3\n\n\n\ninvention, inequitable conduct, and induced infringement\nand associated damages. We affirm.\n I\n A\n Both patents at issue are entitled “System and Meth-\nod for Aligning Vertebrae in the Amelioration of Aberrant\nSpinal Column Deviation Conditions.” The patents claim\nmethods and systems for correcting spinal column anoma-\nlies, such as those due to scoliosis, by applying force to\nmultiple vertebrae at once. ’358 patent, col. 2, line 63,\nthrough col. 3, line 6; ’121 patent, col. 3, line 53, through\ncol. 4, line 2. The ’358 issued in 2010 from an application\nthat Dr. Barry filed on December 30, 2004. The ’121\npatent issued in 2013 from an application—a continuation\nof an August 2005 application that was a continuation-in-\npart of the December 30, 2004 application—that Dr.\nBarry filed in 2010.\n The asserted claims of the ’358 patent are method\nclaims 4 and 5. They depend ultimately on independent\nclaim 1, which reads:\n 1. A method for aligning vertebrae in the ame-\n lioration of aberrant spinal column deviation con-\n ditions comprising the steps of:\n selecting a first set of pedicle screws, said pedi-\n cle screws each having a threaded shank seg-\n ment and a head segment;\n selecting a first pedicle screw cluster derotation\n tool, said first pedicle screw cluster derotation\n tool having first handle means and a first group\n of pedicle screw engagement members which\n are mechanically linked with said first handle\n means, each pedicle screw engagement member\n being configured for engaging with, and trans-\n mitting manipulative forces applied to said first\n\n4 BARRY v. MEDTRONIC, INC.\n\n\n\n\n handle means to said head segment of each\n pedicle screw of said first set of pedicle screws,\n implanting each pedicle screw in a pedicle re-\n gion of each of a first group of multiple verte-\n brae of a spinal column which exhibits an\n aberrant spinal column deviation condition;\n engaging each pedicle screw engagement mem-\n ber respectively with said head segment of each\n pedicle screw of said first set of pedicle screws;\n and\n applying manipulative force to said first handle\n means in a manner for simultaneously engag-\n ing said first group of pedicle screw engage-\n ment members and first set of pedicle screws\n and thereby in a single motion simultaneously\n rotating said vertebrae of said first group of\n multiple vertebrae in which said pedicle screws\n are implanted to achieve an amelioration of an\n aberrant spinal column deviation condition;\n selecting a first length of a spinal rod member;\n wherein one or more of said pedicle screws of\n said first set of pedicle screws each includes:\n a spinal rod conduit formed substantially\n transverse of the length of said pedicle screw\n and sized and shaped for receiving passage\n of said spinal rod member therethrough; and\n spinal rod engagement means for securing\n said pedicle screw and said spinal rod mem-\n ber, when extending through said spinal rod\n conduit, in a substantially fixed relative po-\n sition and orientation;\n extending said first length of said spinal rod\n member through said spinal rod conduits of one\n\nBARRY v. MEDTRONIC, INC. 5\n\n\n\n or more of said pedicle screws of said first set of\n pedicle screws; and\n after applying said manipulative force to said\n first handle means, actuating said spinal rod\n engagement means to secure said vertebrae in\n their respective and relative positions and ori-\n entations as achieved through application of\n said manipulative force thereto.\n’358 patent, col. 6, lines 7–56. Claim 2, which depends on\nclaim 1, adds steps requiring a second set of pedicle\nscrews and a second derotation tool with a second group of\nengagement members and a second “handle means.” Id.,\ncol. 6, line 57, through col. 7, line 15. Claim 3, which\ndepends on claim 2, adds steps requiring a second spinal\nrod. Id., col. 7, line 16, through col. 8, line 11. Claim 4,\nwhich depends on claim 3, adds that the steps of applying\n“manipulative force” to the first and second handle means\n“are carried out substantially simultaneously to coopera-\ntively achieve an amelioration of an aberrant spinal\ncolumn deviation condition.” Id., col. 8, lines 12–17.\nClaim 5 adds the same requirement to claim 2 (on which\nit depends). Id., col. 8, lines 18–23.\n The asserted claims of the ’121 patent are system\nclaims 2–4. Claim 2, an independent claim, reads:\n 2. A system for aligning vertebrae in the amelio-\n ration of aberrant spinal column deviation condi-\n tions comprising:\n a first set of pedicle screws, each pedicle screw\n having a threaded shank segment and a head\n segment; and\n a first pedicle screw cluster derotation tool, said\n first pedicle screw cluster derotation tool hav-\n ing a first handle means for facilitating simul-\n taneous application of manipulative forces to\n\n6 BARRY v. MEDTRONIC, INC.\n\n\n\n\n said first set of pedicle screws and a first group\n of three or more pedicle screw engagement\n members which are mechanically linked with\n said first handle means, said first handle\n means having a handle linked to each pedicle\n screw engagement member of the first group of\n three or more pedicle screw engagement mem-\n bers and a linking member to join together the\n handles linked to the pedicle screw engagement\n members, wherein the handle means is config-\n ured to move simultaneously each pedicle screw\n engagement member; wherein each pedicle\n screw engagement member is configured to en-\n gage respectively with said head segment of\n each pedicle screw of said first set of pedicle\n screws; and wherein each pedicle screw en-\n gagement member is configured to transmit\n manipulative forces applied to said first handle\n means to said head segment of each pedicle\n screw of said first set of pedicle screws;\n a second set of pedicle screws, each pedicle\n screw having a threaded shank segment and a\n head segment;\n a second pedicle screw cluster derotation tool,\n said second pedicle screw cluster derotation tool\n having a second handle means for facilitating\n simultaneous application of manipulative forces\n to said second set of pedicle screws and a sec-\n ond group of three or more pedicle screw en-\n gagement members which are mechanically\n linked with said second handle means, said\n second handle means having a handle linked to\n each pedicle screw engagement member of the\n second group of three or more pedicle screw en-\n gagement members and a handle linking mem-\n ber to join together the handles linked to the\n\nBARRY v. MEDTRONIC, INC. 7\n\n\n\n pedicle screw engagement members, wherein\n the handle means is configured to move simul-\n taneously each pedicle screw engagement\n member; wherein each pedicle screw engage-\n ment member is configured to engage respec-\n tively with said head segment of each pedicle\n screw of said second set of pedicle screws; and\n wherein each pedicle screw engagement mem-\n ber is configured to transmit manipulative forc-\n es applied to said second handle means to said\n head segment of each pedicle screw of said sec-\n ond set of pedicle screws;\n a cross-linking member that links the first\n handle means to the second handle means.\n’121 patent, col. 7, line 57, through col. 8, line 45. The\nparties have highlighted the “cross-linking member”\nelement in identifying the advance of the ’121 patent\nclaims over those of the ’358 patent. Claim 3, which\ndepends on claim 2, and claim 4, which depends on claim\n3, add requirements that have had no material role in the\narguments made to this court. Id., col. 8, lines 46–58.\n B\n The following facts form the core of the background\nneeded to understand the issues before us. Dr. Barry\nbegan working in late 2002 or early 2003 on trying to link\nderotation components (which grab screws in vertebrae to\nmove the vertebrae) of devices for ameliorating spinal\ncolumn deviation conditions. During 2003 he worked\nwith a sales representative from the DePuy medical-\ndevice company, Mr. Pfefferkorn, to adjust standard\nDePuy tools for Dr. Barry’s purposes and in accordance\nwith Dr. Barry’s ideas. Dr. Barry also spoke about his\nideas with representatives from another company, Spine-\nVision. By July 2003, Dr. Barry had a tool that allowed\n\n8 BARRY v. MEDTRONIC, INC.\n\n\n\n\nhim to link the screw-grabbing, vertebrae-moving\nwrenches together.\n Dr. Barry used that tool in three surgeries—on Au-\ngust 4, August 5, and October 14. Dr. Barry testified,\nwithout contradiction by any evidence the jury had to\ncredit, that the three surgeries represent the three most\ncommon types of scoliosis-caused spinal deviation condi-\ntions that surgeons typically see. Between August 2003\nand January 2004, the patients in those surgeries re-\nturned to Dr. Barry several times for follow-up appoint-\nments. During the follow-up appointments, Dr. Barry\nviewed x-rays of the patients’ spines, after they had been\nable to stand up and walk following the three-month\nacute phase of recovery, to determine if the curvature\nconditions had been successfully ameliorated by the\nsurgery.\n According to Dr. Barry’s testimony at trial, it was only\nin January 2004, after the three-month follow-up for the\nOctober 14, 2003 surgery, that he felt confident that his\ninvention functioned for its intended purpose and was\nready to publicize it in a professional forum. J.A. 1161–\n65, 1195–96. He prepared an abstract summarizing the\ndevelopment of his methods and submitted it, by Febru-\nary 1, 2004, for inclusion in the materials to be presented\nat a July 2004 International Meeting of Advanced Spinal\nTechniques—the selection committee for which accepted\nit in April. On December 30, 2004, he filed the applica-\ntion for what issued as the ’358 patent, making December\n30, 2003, the critical date for that patent for purposes of\nthe public-use and on-sale bar issues under 35 U.S.C.\n§ 102(b) (2002). 1\n\n\n\n 1 We refer throughout this opinion to the Title 35\nprovisions in effect before the changes made by the\nLeahy-Smith America Invents Act (AIA), Pub. L. No. 112-\n\nBARRY v. MEDTRONIC, INC. 9\n\n\n\n Around the same time, Dr. Lawrence Lenke, a sur-\ngeon who works with Medtronic, was also working on a\nspinal derotation project. His work began in 2002. Med-\ntronic contends that Dr. Lenke, through that work, was a\nprior inventor and that Dr. Barry’s patents are therefore\ninvalid under 35 U.S.C. § 102(g).\n By 2006, Medtronic introduced its Vertebral Column\nManipulation (VCM) kit, which is used in conjunction\nwith Medtronic’s CD Horizon Legacy and Solera spinal-\nsurgery systems. Dr. Barry alleges that surgeons’ use of\nthat combination infringes the asserted claims of the two\npatents at issue and that Medtronic has induced such\ninfringement through its extensive training materials and\ninstructions relating to its VCM kit. As to the latter,\ninstructions appear on the lid of each kit. Medtronic\nemployees have trained surgeons in how to use the VCM\nkit. Medtronic has included instructions for using the\nVCM kit in surgical guides, which Dr. Barry’s expert, Dr.\nWalid Yassir, testified Medtronic “put . . . out all of the\ntime.” J.A. 1782. And Dr. Lenke testified that he used\nthe VCM kit when performing derotations, even after\n2010, the year the ’358 patent issued.\n In this case, the jury found for Dr. Barry, and specifi-\ncally did so on the key issues contested by Medtronic in\nthis appeal—involving whether Dr. Barry’s ’358 invention\nwas in public use or on sale before December 30, 2003;\nwhether Dr. Lenke was a prior inventor for both patents;\nand whether, and to what extent, Medtronic induced\ninfringement. As relevant here, the jury awarded Dr.\nBarry $15,095,970 for domestic infringement of the ’358\npatent and $2,625,210 for domestic infringement of the\n\n\n\n\n29, 125 Stat. 284 (2011), took effect. As the parties agree,\nthe pre-AIA provisions apply here.\n\n10 BARRY v. MEDTRONIC, INC.\n\n\n\n\n’121 patent. J.A. 135. 2 The district court denied Med-\ntronic’s post-trial challenges regarding induced infringe-\nment, Barry, 230 F. Supp. 3d at 640–47; domestic in-\ninfringement damages, id. at 650–51; invalidity under\n§ 102(b), id. at 653–59; and invalidity under § 102(g), id.\nat 659–63. The district court also rejected Medtronic’s\ncharge of inequitable conduct by Dr. Barry in his interac-\ntions with the Patent and Trademark Office, based on an\nadmitted mistake in identifying Figure 6 in both patents,\nfinding absent the intent required for unenforceability on\nthat ground in a case like this. Inequitable Conduct Op.\nat 797–98.\n On appeal, Medtronic raises issues involving the § 102\nstatutory bars as to the ’358 patent, Br. of Appellant at\n26–41; inequitable conduct as to both patents, id. at 44–\n48; prior invention as to both patents, id. at 48–58; and\ninduced infringement and associated damages as to both\npatents, id. at 58–67 (infringement), 67–69 (damages).\nWe have jurisdiction under 28 U.S.C. § 1295(a)(1).\n II\n We review the denial of judgment as a matter of law\nde novo, and we review the denial of a new trial as well as\nrulings on jury instructions for abuse of discretion. i4i\nLtd. P’ship v. Microsoft Corp., 598 F.3d 831, 841 (Fed. Cir.\n2010) (following Fifth Circuit law), aff’d on other issues,\n564 U.S. 91 (2011). We review evidentiary rulings for an\nabuse of discretion. Summit 6, LLC v. Samsung Elecs.\n\n\n\n 2 The district court eliminated non-domestic in-\nfringement and damages from the judgment, a ruling not\non appeal here. Barry, 230 F. Supp. 3d at 647–49. The\ncourt also enhanced the domestic damages by twenty\npercent (while denying Dr. Barry attorney’s fees), a ruling\nnot on appeal here. Enhancement Op. at 111, 119; see\nJ.A. 309 (final judgment).\n\nBARRY v. MEDTRONIC, INC. 11\n\n\n\nCo., 802 F.3d 1283, 1294–95 (Fed. Cir. 2015) (following\nFifth Circuit law).\n A\n We begin with Medtronic’s argument for judgment as\na matter of law that the ’358 patent’s asserted claims are\ninvalid under § 102(b)’s statutory bar on patenting of\ninventions in “public use” in the United States more than\none year before the application for the patent was filed.\nHere, the application was filed on December 30, 2004, so\nthe critical date for an invalidating domestic public use is\nDecember 30, 2003. We reject Medtronic’s challenge.\n “The public use bar is triggered where, before the crit-\nical date, the invention is in public use and ready for\npatenting.” Polara Eng’g Inc v. Campbell Co., 894 F.3d\n1339, 1348 (Fed. Cir. 2018) (emphasis added) (internal\nquotation marks omitted); see also Pfaff v. Wells Elecs.,\nInc., 525 U.S. 55, 67 (1998); Invitrogen Corp. v. Biocrest\nMfg., L.P., 424 F.3d 1374, 1379 (Fed. Cir. 2005). “[T]he\ndetermination of whether a patent is invalid for public\nuse is a question of law that we review de novo,” but “the\ndisputed facts found to support that determination are\nreviewed for substantial evidence.” Polara, 894 F.3d at\n1348; Manville Sales Corp. v. Paramount Sys., Inc., 917\nF.2d 544, 549 (Fed. Cir. 1990). “We treat the jury’s ver-\ndict of no invalidating public use as a resolution of all\ngenuinely disputed underlying factual issues in favor of\nthe verdict winner”—here, Dr. Barry. Polara, 894 F.3d at\n1348 (internal quotation marks omitted).\n We discuss “ready for patenting” first, then “in public\nuse.” We conclude that Medtronic’s § 102(b) public-use\nchallenge fails on two grounds, which are substantively\nrelated. First, the invention was not ready for patenting\nbefore the critical date. Second, there was no public use\nexcept for an experimental use, and “[p]roof of experi-\nmental use serves as a negation of the statutory bars,”\nPolara, 894 F.3d at 1348 (internal quotation marks omit-\n\n12 BARRY v. MEDTRONIC, INC.\n\n\n\n\nted); see New Railhead Mfg., L.L.C. v. Vermeer Mfg. Co.,\n298 F.3d 1290, 1297–98 (Fed. Cir. 2002); EZ Dock, Inc. v.\nSchafer Sys., Inc., 276 F.3d 1347, 1352 (Fed. Cir. 2002).\n We place our discussion of experimental use within\nour discussion of the “public use” element. This place-\nment fits the facts that commercial exploitation may\nsometimes satisfy that element, Invitrogen, 424 F.3d at\n1380, and “[t]he law has long recognized the distinction\nbetween inventions put to experimental use and products\nsold commercially,” Pfaff, 525 U.S. at 64; id. at 64–65\n(discussing Elizabeth v. American Nicholson Pavement\nCo., 97 U.S. 126, 133–37 (1877)). But this placement is\nnot inevitable: we have observed that “evidence of exper-\nimental use may negate either the ‘ready for patenting’ or\n‘public use’ prong [of the public-use-bar standard]” and\n“recogniz[ed] an overlap of the experimental use negation\nand the ready for patenting standard.” Invitrogen, 424\nF.3d at 1379–80 (citing EZ Dock, 276 F.3d at 1352). The\noverlap is reflected in the fact that the timing of\nknowledge that the invention will “work for its intended\npurpose” is important to both experimental use and\nreadiness for patenting. Polara, 894 F.3d at 1348 (de-\nscribing such an inquiry for both the “ready for patenting”\nand “experimental use” standards); see EZ Dock, 276 F.3d\nat 1356–57. In any event, whatever the best doctrinal\norganization, experimental use negates invalidity under\nthe public use bar. We discuss both readiness for patent-\ning and experimental use because they are related and\nbecause the dissent, agreeing with Medtronic about the\nfirst, addresses the second to complete its reasoning to\nsupport its conclusion of invalidity under § 102(b). 3\n\n\n\n 3 The dissent proposes several changes to the legal\nstandards stated in governing case law, such as a change\nto impose a (high) burden of persuasion on the patent\nowner to establish experimental use. Dissent at 14–19.\n\nBARRY v. MEDTRONIC, INC. 13\n\n\n\n 1\n The jury could reasonably find facts that support re-\njection of Medtronic’s contention that Dr. Barry’s ’358\ninvention was ready for patenting before December 30,\n2003. Medtronic’s contention required it to prove that,\nbefore that date, the method was “‘shown or known to\nwork for its intended purpose.’” Polara, 894 F.3d at 1348\n(quoting Helsinn Healthcare S.A. v. Teva Pharm. USA,\nInc., 855 F.3d 1356, 1371 (Fed. Cir. 2017), cert. granted on\na different issue, 138 S. Ct 2678 (2018)); see Electromotive\nDiv. of Gen. Motors Corp. v. Transp. System Div. of Gen.\nElec. Co., 417 F.3d 1203, 1211 (Fed. Cir. 2005); Manville,\n917 F.2d at 550–51. But there is substantial evidence\nthat Dr. Barry’s invention was not ready for patenting\nuntil January 2004 because the final follow-up from the\nOctober surgery was reasonably needed for the determi-\nnation that the invention worked for its intended purpose.\n This court has long held that “the Supreme Court’s\n‘ready for patenting test’” from Pfaff, involving the on-sale\nbar, also “applies to the public use bar under § 102(b).”\nInvitrogen, 424 F.3d at 1379. Medtronic accepts in this\nappeal that, to show readiness for patenting, it had to\nshow (a) a reduction to practice or (b) drawings or descrip-\ntions enabling an ordinarily skilled artisan to practice the\ninvention. Pfaff, 525 U.S. at 67–68. 4 Here, Medtronic’s\n\n\nMedtronic has not argued for such changes. We follow\nexisting case law. We also note that we see nothing in the\ndissent’s proposed changes that would alter our § 102(b)\nresult—at the least on the sufficient ground that Med-\ntronic failed to establish readiness for patenting.\n 4 The dissent states that readiness for patenting\nmight be shown in some other way. Dissent at 7–9. We\nhave no such alternative before us. Reduction to practice\nand enabling drawings or descriptions are the sole bases\non which Medtronic argues for readiness for patenting.\n\n14 BARRY v. MEDTRONIC, INC.\n\n\n\n\nability to support judgment as a matter of law in its favor\nunder that test depends on its succeeding under the\nreduction-to-practice alternative. 5\n Under the test for a reduction to practice, the chal-\nlenger must show that “the inventor (1) constructed an\nembodiment or performed a process that met all the\nlimitations and (2) determined that the invention would\nwork for its intended purpose.” In re Omeprazole Patent\nLitig., 536 F.3d 1361, 1373 (Fed. Cir. 2008) (internal\nquotations omitted). What testing was in order to deter-\nmine whether an invention would work for its intended\npurpose is one of the subsidiary fact questions underlying\na determination of whether an invention was in public\nuse. See Z4 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340,\n1352 (Fed. Cir. 2007) (“Because the necessity and suffi-\nciency of such testing [of an invention to determine if it\nwill work for its intended purpose] are factual issues,\n\n\n\nBr. of Appellant at 29–34. The jury instructions, not\nchallenged here, are similarly limited. J.A. 158–61.\n 5 On appeal, Medtronic also points to drawings pre-\npared in November 30, 2003, by a device company, Spine-\nVision, based on conversations with Dr. Barry, and argues\nthat the drawings show that “prior to the critical date the\ninventor [Dr. Barry] had prepared drawings or other\ndescriptions of the invention that were sufficiently specific\nto enable a person skilled in the art to practice the inven-\ntion.” Pfaff, 525 U.S. at 67–68 (footnote omitted). But\nMedtronic identifies no expert testimony making the\nnecessary enablement showing. The jury could reasona-\nbly find that Medtronic failed to prove that descriptions\nby Dr. Barry (leading to the SpineVision-prepared draw-\nings of devices), or even the drawings, enabled a person of\nordinary skill in the art to practice the surgical-procedure\nclaims. We therefore limit our discussion in text to Med-\ntronic’s argument based on reduction to practice.\n\nBARRY v. MEDTRONIC, INC. 15\n\n\n\nsubstantial evidence . . . will suffice to support the jury’s\nverdict.”); Slip Track Sys., Inc. v. Metal-Lite, Inc., 304\nF.3d 1256, 1268 (Fed. Cir. 2002) (“[W]e leave to the fact\nfinder the determination of whether testing was necessary\n. . . or whether the mere construction of the First Proto-\ntype, in and of itself, was enough to demonstrate to one of\nskill in the art that the invention would work for its\nintended purpose without any testing.”); Seal-Flex, Inc. v.\nAthletic Track & Court Const., 98 F.3d 1318, 1324 (Fed.\nCir. 1996) (“The trier of fact must determine whether the\ninvention was completed and known to work for its in-\ntended purpose . . . .”). 6\n\n\n\n 6 Pfaff supports the “intended purpose” standard in\nseveral ways. In a footnote, see 525 U.S. at 57 n.2, Pfaff\nquotes the statement in Corona Cord Tire Co. v. Dovan\nChemical Corp., 276 U.S. 358, 383 (1928), that “[a] pro-\ncess is reduced to practice when it is successfully per-\nformed.” What “successfully” means in Corona is\nachieving the purpose of accelerating the curing of rubber,\nas detailed extensively in Corona and summarized just\nbefore the “successfully performed” language—“It was the\nfact that it would work with great activity as an accelera-\ntor that was the discovery, and that was all, and the\nnecessary reduction to use is shown by instances making\nclear that it did so work, and was a completed discovery,”\nid. at 382–83 (emphasis added)—a summary that the\nCourt quoted in Pfaff, 525 U.S. at 66 n.12. The “intended\npurpose” standard is also reflected in Pfaff’s reliance, in\nits rationale leading to the “ready for patenting” standard,\non the statement in Elizabeth that a public use does not\ninclude an inventor’s “bona fide effort to bring his inven-\ntion to perfection, or to ascertain whether it will answer\nthe purpose intended,” Elizabeth, 97 U.S. at 137 (emphasis\nadded), which was quoted in Pfaff, 525 U.S. at 64–65.\nThat reliance reflects the intertwining, as opposed to any\n\n16 BARRY v. MEDTRONIC, INC.\n\n\n\n\n Here, Medtronic relied on the August and October\n2003 surgeries as reductions to practice that immediately\nproved that the claimed invention of the ’358 patent\nwould work for its intended purpose. But the evidence\nallows a reasonable finding that Dr. Barry did not know\nthat his invention would work for its intended purpose\nuntil January 2004, when he completed the follow-ups on\nthose surgeries, which were on three patients who fairly\nreflected the real-world range of application of the in-\nventive method.\n We have already noted the evidence that the three\nsurgeries involved “the three most common[] curve types\nof scoliosis” seen by surgeons, J.A. 1195, and that it was\nnot until January 2004 that Dr. Barry completed the\nstandard-practice follow-up on the third patient, at which\npoint the three-month acute phase of recovery was over\nand the patient could stand up and walk. We also have\nnoted Dr. Barry’s testimony that only then did he con-\nclude that the surgical method would work for its intend-\ned purpose, testimony confirmed by the fact that only\nthen did he write up his development work for publication\nin a professional forum.\n The record contains further supporting evidence. Dr.\nLenke noted the range of scoliosis conditions. J.A. 2644.\nEvidence from several sources confirmed that, to evaluate\nthe success of a spinal-deviation correction, it is important\nfor the surgeon to evaluate the patient after some time\nhas elapsed following the surgery, particularly once the\npatient can stand. See J.A. 1159–60, 1190–95, 1372,\n5406, 5417, 13016. Dr. Barry’s expert testified that “you\nknow nominally if you have performed a correction of the\n\n\n\nclean separation, of experimental use and reduction to\npractice standards, which is further reinforced in a later\nfootnote in Pfaff, 525 U.S. at 66 n.12.\n\nBARRY v. MEDTRONIC, INC. 17\n\n\n\nspine”—agreeing to the “some amelioration” characteriza-\ntion by Medtronic’s counsel only to that limited extent—\nand then immediately explained, starting in the same\nanswer, that what happened afterward was crucial:\n“when the patient stands up, there are some changes that\nhappen over time.” J.A. 1959–60. As a result, he added,\nalthough “normally you can see the straightening” at the\ntime of the surgery, “follow-up is absolutely required to\ndetermine that it lasts,” J.A. 2906, and the follow-up\nappointments allowed Dr. Barry to conclude, “‘[o]kay, this\nthing is holding up’ and . . . ‘[n]ow I know I’ve got a meth-\nod that works,’” J.A. 2899. Both Dr. Barry and his expert\nindicated that at least that amount of follow-up is not just\nprudent but consistent with standards for peer-reviewed\npublications reporting new techniques.\n That evidence suffices for the jury to have rejected\nMedtronic’s contention that Dr. Barry is charged with\nknowing that the surgical technique worked for its in-\ntended purpose immediately upon completion of the\nsurgical operation—at least the last operation, in October\n2003. The evidence is not limited to Dr. Barry’s own\ntestimony, as just indicated. And credibility assessments,\nwithin a broad range, are for the factfinders, especially\nwhen they have seen the witnesses live, as the jurors in\nthis case did. See, e.g., Cooper v. Harris, 137 S. Ct. 1455,\n1474 (2017); Perry v. New Hampshire, 565 U.S. 228, 237\n(2012); Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009);\nReeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,\n150 (2000); Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88\n(1891); Power Integrations, Inc. v. Fairchild Semiconduc-\ntor Int’l, Inc., 843 F.3d 1315, 1341 (Fed. Cir. 2016); Co-\nmark Comm’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1192–\n93 (Fed. Cir. 2000). On the evidence in this case, the jury\ncould readily credit the testimony of Dr. Barry—who has\nextensive medical experience and day-to-day professional\nresponsibility for patient health and safety—about what\nevaluation was reasonably necessary for a prudent de-\n\n18 BARRY v. MEDTRONIC, INC.\n\n\n\n\ntermination that his technique worked for its intended\npurpose.\n To the extent that Medtronic contends, and the dis-\nsent concludes, that the patent claims compel narrowing\nthe “intended purpose” determination to a single surgery,\nor even two surgeries, assessed for success immediately\nupon its completion, we disagree. The claims do not limit\nthe intended purpose in that way. They are not limited to\na particular type of curvature correction. Nor do they\nindicate that the intended purpose is limited to observing\na straightening at the completion of surgery, without\nregard to the correction lasting so as to improve the\npatient’s health. To the contrary, the preamble to the\nindependent claim calls for “the amelioration of aberrant\nspinal column deviation conditions,” ’358 patent, col. 6,\nlines 8–9, which Medtronic argues is the intended pur-\npose, Br. of Appellant at 30. See also ’358 patent, col. 3,\nlines 10–34 (specification statement of first four objects of\nthe invention using materially the same language). In a\nruling not disputed on appeal, the district court concluded\nthat the phrase would be given its “normal, customary\nmeaning,” without further construction, and that no\nindefiniteness problem would result because, in this\nmedical context, a skilled artisan, focused on “benefit to a\npatient,” would understand the scope of the phrase. J.A.\n33. That common-sense approach to identifying the\nintended purpose is rooted in the preamble claim lan-\nguage as well as the specification. And it is properly\nunderstood, consistent with the specification’s background\ndiscussion of patients’ conditions beyond the end of sur-\ngery, ’358 patent, cols. 1–2 (discussing patient health over\ntime), as looking past the time of a surgery to evaluate\nthe improvement in patients’ conditions and allowing the\nwithholding of judgment about the technique reliably\nworking until follow-up on a small but representative\n\nBARRY v. MEDTRONIC, INC. 19\n\n\n\nrange of “deviation conditions” surgeons would regularly\nencounter. 7\n The “intended purpose” need not be stated in claim\nlimitations that define the claim scope. Even in this case,\nthe claim language that Medtronic treats as identifying\n\n\n 7 The dissent suggests that at most two surgeries,\nnot three, were needed for the plural “conditions.” Dis-\nsent at 12–13. But Medtronic has not meaningfully\npresented, let alone supported, such a rationale for rever-\nsal. Only a single sentence in Medtronic’s opening brief,\nwhere arguments must be made, is of even possible rele-\nvance. After reciting the district court’s reliance on Dr.\nBarry’s testimony that “he wanted to follow up with his\npatients three months after the surgery,” citing J.A. 215,\n1196, Medtronic said: “That reasoning fails even on its\nown terms: three months after surgeries on August 4 and\n5, 2003, would mean reduction to practice in early No-\nvember, which is still nearly two months before the De-\ncember 30, 2003 critical date.” Br. of Appellant at 30,\nlines 6–9. If the dissent’s point is one about the claim\npreamble’s plural language, Medtronic’s sentence says\nnothing about that. If the dissent’s point is a medical-\njudgment point about the need for three rather than two\nsurgeries, Medtronic’s sentence is doubly deficient. The\ntestimony Medtronic says it is answering is not about\nthree versus two, but merely about the length of follow-up\ntime, as confirmed by the citations to J.A. 215, 1196. In\nany event, and decisively, a medical-judgment point must\nbe supported by evidence, but Medtronic’s sentence is\nunaccompanied by any citation to the record at all. Spe-\ncifically, there is no citation to evidence contrary to Dr.\nBarry’s testimony as a factual matter about the need for\nfollow-ups of three surgeries, much less evidence that\ncompelled a determination in Medtronic’s favor on this\npoint.\n\n20 BARRY v. MEDTRONIC, INC.\n\n\n\n\nthe “intended purpose” is preamble language that, it is\nundisputed here, is not limiting, i.e., it does not state a\nrequirement that must be proved to establish infringe-\nment. See J.A. 152 (unchallenged jury instruction). The\ncase law cited by the dissent (at 10–11) looks to the claims\nand specification as a whole for guidance, without declar-\ning strict requirements even as to those sources. We note\nthat it is hardly surprising that intended purpose need\nnot be stated in claim limitations, given that one typical\nway of claiming is simply to define the physical steps of\nthe process, or the physical elements of a product, without\nbuilding functional or purpose language into the claim\nlimitations at all. See, e.g., In re Schreiber, 128 F.3d 1473,\n1478 (Fed. Cir. 1997) (explaining that “[a] patent appli-\ncant is free to recite features of an apparatus either struc-\nturally or functionally” but that the latter choice presents\ndistinctive risks) (emphasis added).\n Case law confirms this approach. For example, in Co-\nrona Cord, the Supreme Court, for its reduction-to-\npractice analysis, inferred the accelerate-curing purpose\nfrom the specification. And it described the main claims\nat issue (No. 1,411,231, claims 4, 8, and 12) as stating\nsimple process steps without any reference to that pur-\npose. 276 U.S. at 366.\n In Manville, the patentee designed a light pole as-\nsembly that could be easily raised and lowered. 917 F.2d\nat 547–48. None of the claims included language about\nthe light pole being durable in different weather condi-\ntions, but we determined that the patentee’s testing of the\ninvention “under wind, cold and corrosive atmospheric\nconditions” did not qualify as a public use because “[p]rior\nto its testing in the winter environment, there really was\nno basis for confidence by the inventor that the invention\nwould perform as intended, and hence no proven inven-\ntion to disclose.” Id. at 550. It was not necessary for the\npatent to claim durability in order for durability to be\npart of the patent’s intended purpose because a certain\n\nBARRY v. MEDTRONIC, INC. 21\n\n\n\nfunction can be “inherent to the purpose of an invention,”\nnecessitating further testing even when that inherent\npurpose is not claimed. Id. at 551.\n Similarly, in Polara, we agreed with Polara that it\n“needed to test the claimed invention at actual crosswalks\nof different sizes and configurations and where the proto-\ntype would experience different weather conditions to\nensure that the invention would work for its intended\npurpose.” 894 F.3d at 1349. The patent in that case was\nfor a control system that would alert pedestrians when it\nwas safe to cross the street. Id. at 1344. The claim lan-\nguage did not include limitations about the weather\nconditions or the size of the crosswalk, id., but we deter-\nmined that the inventor could not know if the invention\nworked for its intended purpose until it had been tested in\na variety of settings where it would operate, id. at 1349.\nTesting an invention in practical situations was part of\nthe determination of whether it was ready for patenting.\n In Honeywell International v. Universal Avionics Sys-\ntems, we likewise recognized that an invention might not\nbe ready for patenting until the inventor ascertains how\nthat invention will function in practical circumstances.\nHoneywell Int’l Inc. v. Universal Avionics Systems Corp.,\n488 F.3d 982 (Fed. Cir. 2007). Honeywell was developing\na terrain warning system for airplanes to address a\nproblem in the prior art, whose ground proximity detec-\ntors could not detect sudden changes in terrain. Id. at\n987. Honeywell’s system “compare[d] the aircraft’s posi-\ntion with an on-board digitized map of the earth’s terrain\nand man-made obstacles.” Id. at 987–88. Because there\nwas evidence that Honeywell negotiated to sell its system\nto a customer, raising an issue under the on-sale bar, we\nhad to determine if the invention was ready for patenting\nunder the Pfaff test for that statutory bar. Id. at 997. We\nheld that Honeywell’s system was not ready for patenting\nbefore the critical date because the sale and integration of\nthe system in real planes flown by human pilots “were a\n\n22 BARRY v. MEDTRONIC, INC.\n\n\n\n\npart of Honeywell’s program to determine that the inven-\ntion worked for its intended purpose.” Id. at 996. In\nshort, Honeywell’s determination that the system worked\nfor its intended purpose was reasonably dependent on\ncompletion of a range of tests in a variety of real-world\nsituations in which the system would be used. 8\n In TP Laboratories, Inc. v. Professional Positioners,\nInc., 724 F.2d 965 (Fed. Cir. 1984), moreover, we con-\nfirmed the common-sense proposition that, for medical\nprocedures, follow-up appointments can be necessary to\ndetermine when an invention is performing its intended\npurpose. The invention at issue was a means of correct-\ning irregularities in teeth. Id. at 972. We determined\nthat the inventor could not have immediately assessed\nafter implantation whether the device was working for its\nintended purpose; therefore, it was reasonable for the\ndoctor to continue to follow patients and test the inven-\ntion on several patients before determining if it was\nworking for the purpose intended. Id.\n The three types of curvature addressed by Dr. Barry’s\nthree surgeries are analogous to the different weather\nconditions in Manville and Polara, the different crosswalk\ndimensions in Polara, and the different types of terrain in\nHoneywell. And Dr. Barry’s reliance on follow-up ap-\npointments is analogous to the role of follow-up appoint-\nments in TP Laboratories. We therefore affirm the\ndetermination that the claimed ’358 patent invention was\nnot ready for patenting before the critical date.\n\n\n 8 In the related context of experimental use, we\nhave likewise recognized that sometimes testing for a\nproperty can fall outside the statutory bars even if that\nproperty is not required by a claim limitation. See Elec-\ntromotive, 417 F.3d at 1212 (first citing Manville as well\nas EZ Dock, 276 F.3d at 1353, then citing Seal-Flex, 98\nF.3d at 1320).\n\nBARRY v. MEDTRONIC, INC. 23\n\n\n\n 2\n Although the foregoing discussion suffices to affirm\nthe rejection of Medtronic’s invalidity challenge under\n§ 102(b)’s public-use bar, we think it worthwhile to ad-\ndress Medtronic’s contentions regarding the other element\nof the test of invalidity under the public-use bar: whether\nthe invention was “in public use.” We conclude that\nMedtronic also fails under this element.\n Medtronic sought to establish this element by show-\ning that the invention was accessible to the public and\nthat it was commercially exploited. We conclude, howev-\ner, that the evidence permitted a reasonable finding that\nDr. Barry’s ’358 patent invention was not accessible to the\npublic before the critical date. We also conclude that the\nasserted acts of commercial exploitation, namely, the\nAugust and October 2003 surgeries, come within the\nexperimental-use exception.\n i\n In assessing accessibility to the public, we have fo-\ncused on several underlying facts: “the nature of the\nactivity that occurred in public; the public access to and\nknowledge of the public use; [and] whether there was any\nconfidentiality obligation imposed on persons who ob-\nserved the use.” Dey, L.P. v. Sunovion Pharm., Inc., 715\nF.3d 1351, 1355 (Fed. Cir. 2013). Here, the alleged public\nuse consisted of Dr. Barry’s surgeries. But there is sub-\nstantial evidence that Dr. Barry’s surgeries were not\nexposed or accessible to the public.\n Unlike in the classic case of Egbert v. Lippmann, 104\nU.S. 333, 335 (1881), the inventor here did not relinquish\ncontrol of his invention. Dr. Barry was the only one who\nactually practiced the invention, i.e., performed the sur-\ngery using the claim-required manipulation of linked\nderotators. And while other people were present in the\noperating room—an anesthesiologist, two assistant physi-\n\n24 BARRY v. MEDTRONIC, INC.\n\n\n\n\ncians, a scrub technician, a neurophysiologist, a circulat-\ning nurse, and an equipment representative—there was\nsufficient evidence for the jury to find facts establishing\nthat the technique was not accessible to the public\nthrough those people.\n The evidence showed that very few of the people in\nthe operating room had a clear view of the surgical field,\nwhere Dr. Barry was using his invention, because they\nwere either not permitted near the sterile field or because\nthere was a drape blocking the view. More dispositively,\nalthough sometimes (as in Egbert) even a limited disclo-\nsure can make an invention accessible to the public, see\nDey 715 F.3d at 1355–56, an accessibility determination\nmay be rejected where the evidence establishes a suffi-\ncient obligation of confidentiality, which can be implied\nrather than express. Id. at 1357; Delano Farms Co. v.\nCal. Table Grape Comm’n, 778 F.3d 1243, 1249 (Fed. Cir.\n2015) (“[D]emonstration of a prototype to ‘friends and\ncolleagues’ was not invalidating because the evidence\nsupported the existence of ‘a general understanding of\nconfidentiality.’”); Invitrogen, 424 F.3d at 1381 (“[T]his\ncourt has determined that a use before the critical period\nwas not public even without an express agreement of\nconfidentiality.”). Here, the jury could find that those in\nthe operating room were under an implied duty of confi-\ndentiality covering at least the tools and techniques used.\nSee J.A. 1311, 1167–68, 1679, 2388–89. These confidenti-\nality understandings suffice to support the jury’s finding\nof no public accessibility.\n ii\n For commercial exploitation, as for public accessibil-\nity, Medtronic relies on the August and October surgeries.\nIt rightly recognizes that “an inventor’s own prior com-\nmercial use, albeit kept secret, may constitute a public\nuse or sale under § 102(b), barring him from obtaining a\npatent.” Woodland Tr. v. Flowertree Nursery, Inc., 148\n\nBARRY v. MEDTRONIC, INC. 25\n\n\n\nF.3d 1368, 1370 (Fed. Cir. 1998); see TP Labs., 724 F.2d at\n972. And it points out, correctly, that Dr. Barry was\ncompensated for the three surgeries in which he used his\ninvention. It also cites precedents to support its conten-\ntion that a determination of commercial exploitation\nwould not be defeated simply because Dr. Barry charged\nhis standard fee for the surgeries, not an extra amount\nreflecting use of the inventive method. See, e.g., Cargill,\nInc. v. Canbra Foods, Ltd., 476 F.3d 1359, 1369, 1370\n(Fed. Cir. 2007); In re Kollar, 286 F.3d 1326, 1333 (2002)\n(citing Scaltech, Inc. v. Retec/Tetra, LLC, 269 F.3d 1321,\n1328 (Fed. Cir. 2001)) (relying on “[a]ctually performing\nthe process itself for consideration”); Application of Dybel,\n524 F.2d 1393, 1401 (CCPA 1975); Application of Joss-\nerand, 188 F.2d 486, 493–94 (C.C.P.A. 1951). But cf. TP\nLabs., 724 F.2d at 968, 973 (finding no commercial exploi-\ntation, in part, because “the inventor[s] made no extra\ncharge for fitting the three patients” with the invention\nand “followed ‘their’ regular practice of setting a fixed\ntotal fee”).\n But regardless of the foregoing, the August and Octo-\nber surgeries come within the experimental-use exception.\nAn inventor’s use, while public in one sense, will not be\nconsidered a statutory public use if the use was experi-\nmental. Electromotive, 417 F.3d at 1211; City of Eliza-\nbeth, 97 U.S. at 134–35 (“The use of an invention by the\ninventor himself, or of any other person under his direc-\ntion, by way of experiment, and in order to bring the\ninvention to perfection, has never been regarded as [a\npublic] use. . . . [Testing an invention in a building even\nwith the doors open] is not a public use, within the mean-\ning of the statute, so long as the inventor is engaged, in\ngood faith, in testing its operation. He may see cause to\nalter it and improve it, or not. His experiments will\nreveal the fact whether any and what alterations may be\nnecessary.”). “[I]n the context of a public use bar, evi-\ndence of experimental use may negate either the ‘ready\n\n26 BARRY v. MEDTRONIC, INC.\n\n\n\n\nfor patenting’ or ‘public use’ prong.” Invitrogen, 424 F.3d\nat 1379–80. “A use may be experimental if its purpose is:\n‘(1) [to] test claimed features of the invention or (2) to\ndetermine whether an invention will work for its intended\npurpose—itself a requirement of patentability.’” Polara,\n894 F.3d at 1348; see Clock Spring, L.P. v. Wrapmaster,\nInc., 560 F.3d 1317, 1327 (Fed. Cir. 2009).\n This court has identified a host of factors that can be\nrelevant to assessing whether a use is experimental,\nincluding:\n (1) the necessity for public testing, (2) the amount\n of control over the experiment retained by the in-\n ventor, (3) the nature of the invention, (4) the\n length of the test period, (5) whether payment was\n made, (6) whether there was a secrecy obligation,\n (7) whether records of the experiment were kept,\n (8) who conducted the experiment, (9) the degree\n of commercial exploitation during testing, (10)\n whether the invention reasonably requires evalu-\n ation under actual conditions of use, (11) whether\n testing was systematically performed, (12) wheth-\n er the inventor continually monitored the inven-\n tion during testing, and (13) the nature of contacts\n made with potential customers.\nId.; see Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d\n1336, 1353 (Fed. Cir. 2002). Many of those considerations\nare factual, but “[e]xperimental use is a question of law to\nbe analyzed based on the totality of the surrounding\ncircumstances.” Petrolite Corp. v. Baker Hughes Inc., 96\nF.3d 1423, 1426 (Fed. Cir. 1996).\n In this case, the evidence—including the evidence al-\nready discussed when addressing “ready for patenting”—\nshows that many of the above-recited factors point toward\na conclusion of experimental use. Dr. Barry was not sure\nthat the device would work on different types of scoliosis,\nso he performed surgeries on the three main types. He\n\nBARRY v. MEDTRONIC, INC. 27\n\n\n\nwas not confident that the new procedure was effective\nuntil the January 2004 follow-up appointment for the\nthird of those surgeries. In the context of this medical\npatent, as we have discussed, it is reasonable, to truly\ndetermine whether a method works, to engage in such\ntesting for a brief time on a small but representative\nrange of expected circumstances of use and to rely on\nfollow-up. See TP Labs., 724 F.2d at 972. Dr. Barry\nearned no more from the surgeries than he would have\nearned had he used prior-art methods; and there is no\nbasis for finding that he attracted the three customers\nbecause of the new technique—indeed, Medtronic insists\nthat they did not even know it was being used. 9 In addi-\ntion, Dr. Barry was the only one to perform the method\nusing his device. More generally, he did not surrender\ncontrol of the claimed invention before the critical date.\nJ.A. 1312. He kept control through the expectation of\nsecrecy binding the other medical professionals present at\nthe surgeries and the other circumstances that, as ex-\nplained above, support the jury’s determination of no\npublic accessibility. And other people were aware that he\nwas experimenting, including one doctor, one of the\nnurses in the operating room, and a representative of the\nDePuy medical-device firm who was helping with the\n\n\n\n 9 Contrary to the dissent (at 21–22), this fact reduc-\nes the “degree of commercial exploitation,” Clock Spring,\n560 F.3d at 1327, in the sense at the heart of the § 102(b)\npolicy of preventing an overlong period of commercial\nexploitation of an invention. Though earning his normal\nfees from the three surgeries, Dr. Barry did not “exploit”\nhis invention as a means to attract the three patients for\nthose surgeries or to charge more because he used his new\ntechnique. The jury could find that he would have gotten\nthe same business, and earned the same fee, even if he\nhad not planned to use or used the inventive process.\n\n28 BARRY v. MEDTRONIC, INC.\n\n\n\n\ninstrumentation. See J.A. 1370, 1178–79, 1733–35.\nThese are all facts that the jury could reasonably find;\nconsidered together, not in isolation from each other, they\nweigh in favor of a determination of experimental use.\n Medtronic relies centrally on two factors as pointing\nagainst a finding of experimental use: that Dr. Barry\ncharged his patients for the surgeries; and that Dr. Barry\ndid not inform his patients that he was engaged in testing\nof his particular technique. The first factor is not by itself\nweighty in this case. Receipt of payment, if sufficiently\nincidental to an experiment, is not automatically disquali-\nfying. See, e.g., Int’l Tooth Crown Co. v. Gaylord, 140 U.S.\n55, 62–63 (1891); Allen, 299 F.3d at 1354. The evidence\npermitted the jury to find that Dr. Barry earned no more\nfrom the surgeries than he would have earned from using\nprior-art methods and did not attract his three patients\nbased on use of the inventive method. On these facts, his\nfee can be viewed as merely incidental to experimental\nwork—a very limited number of tests, “reasonably neces-\nsary” to the experimental purpose, Int’l Tooth Crown, 140\nU.S. at 63—if the surgeries are otherwise experimental.\n Medtronic must rely, therefore, on the second factor,\nat least when present together with the first. Both cir-\ncumstances were present in Sinskey v. Pharmacia Oph-\nthalmics, Inc., 982 F.2d 494 (Fed. Cir. 1992), overruled on\nother grounds by Pfaff, 525 U.S. 55 (1998), on which\nMedtronic heavily relies. Dr. Sinskey was working on an\nintraocular lens that would be “implanted in the human\neye to restore or improve the visions of patients who ha[d]\nhad their natural lens removed because of damage or\ndisease.” Id. at 496. Between January and February\n1980—before the critical date of February 24, 1980—Dr.\nSinskey implanted the lens in eight patients. Id. at 497.\nHe followed standard hospital procedures and was paid\nfor the surgery. Id. We determined that the “objective\nevidence . . . cut[] heavily against experimental use.” Id.\nat 499. We noted that he “charged his usual surgical fee\n\nBARRY v. MEDTRONIC, INC. 29\n\n\n\nfor the operation and a standard price for the implants.”\nId. And we relied on the fact that he “did not inform the\npatients that they were being treated with a ‘new’ or\n‘experimental’ lens.” Id.\n The facts in Sinskey differ from the facts here in ways\nthat we think are crucial. First, there was evidence here\nthat not just Dr. Barry, but others, understood the surger-\nies to be experimental. In Sinskey, there was no such\nobjective confirmation; and Dr. Sinskey himself, during\nhis deposition, had stated that he did not consider his\nprior uses to be experimental. Id. at 497–98. Second, the\nnature of the invention and conduct is critically different\nin the two cases. Whereas Dr. Barry’s invention is of a\nmethod, Dr. Sinskey’s patent was for a physical product,\ni.e., a lens. Id. at 496 (“The patent is directed to an intra-\nocular lens.”). And when Dr. Sinskey implanted the lens\nin a patient, he was surrendering control of his invention,\nwhereas Dr. Barry did not surrender control of his inven-\ntion when he performed the derotation surgeries.\n The experimental-use inquiry asks whether the in-\nventor’s conduct would lead the “‘public’ to reasonably\nbelieve the invention was in the public domain,” Manville,\n917 F.2d at 550, and in particular whether there has been\n“any use of that invention by a person other than the\ninventor who is under no limitation, restriction or obliga-\ntion of secrecy to the inventor,” In re Smith, 714 F.2d\n1127, 1134 (Fed. Cir. 1983). When Dr. Sinskey surren-\ndered control of the invention to another, without explain-\ning that the device was experimental, the public was\nentitled to believe that the device was in the public do-\nmain. That conclusion answered the statutory question\nat least in the absence of any objective evidence support-\ning Dr. Sinskey’s litigation claim of experimental use.\n This court stated the principle in LaBounty Mfg., Inc.\nv. U.S. Int’l Trade Comm’n: “When sales are made in an\nordinary commercial environment and the goods are\n\n30 BARRY v. MEDTRONIC, INC.\n\n\n\n\nplaced outside the inventor’s control, an inventor’s secret-\nly held subjective intent to ‘experiment,’ even if true, is\nunavailing without objective evidence to support the\ncontention. Under such circumstances, the customer at a\nminimum must be made aware of the experimentation.”\n958 F.2d 1066, 1072 (Fed. Cir. 1992) (citation omitted).\nThat statement ties a demand for a warning of experi-\nmentation to at least two premises (which were present in\nSinskey and LaBounty) beyond the “ordinary commercial\nenvironment”—there was no other objective evidence of\nexperimentation, but merely a subjective inventor belief;\nand “the goods [were] placed outside the inventor’s con-\ntrol.” Id. But both of those premises are missing in the\npresent case. There is objective evidence of experimenta-\ntion, not just a purely subjective intent of Dr. Barry. And\nthere was no loss of control—a factor that this court has\nstressed “is critically important.” Lough v. Brunswick\nCorp., 86 F.3d 1113, 1120 (Fed. Cir. 1996). No person left\nthe operating room with the (method) invention, and no\nperson learned the method without an obligation of confi-\ndentiality. In these circumstances, there was no placing\nof the invention in the public domain that is inconsistent\nwith experimentation.\n Medtronic cites several of our opinions that contain\nlanguage that, taken out of context, might be read as\nmaking a necessary requirement for experimental use\nthat the experimenter inform patients or customers of the\nexperimental nature of the product. But the statements\nshould not be taken out of context. Like LaBounty, which\nexpressly tied the inform-customers statement to placing\na product invention outside the inventor’s control, every\none of those cases in fact involved a device placed into a\npatient’s or customer’s control, and out of the inventor’s\ncontrol. See, e.g., Electromotive, 417 F.3d at 1213 (focus-\ning on the importance of customer awareness when the\ninvention is put squarely in the hands and in the control\nof the customer); Paragon Podiatry Lab., Inc. v. KLM\n\nBARRY v. MEDTRONIC, INC. 31\n\n\n\nLabs., Inc., 984 F.2d 1182, 1186–87 (Fed. Cir. 1993)\n(discussing the importance of communicating with cus-\ntomers the experimental nature of orthotic devices placed\nin the customer’s shoes); Sinskey, 982 F.2d at 499 (dis-\ncussing how Mr. Sinskey fitted the patients with a new\nkind of lens); LaBounty, 958 F.2d at 1069–70, 1072 (dis-\ncussing the need to inform customers who used the scrap\nmetal shears that the shears were experimental); In re\nDybel, 524 F.2d at 1394–95, 1401 (discussing how the\ninventor’s failure to disclose the experimental nature of\nhis “load sensing piezoelectric transducer” when he sold it\nto a customer was fatal to the inventor’s experimental-use\nargument). We have not applied the inform-customer\nprinciple in a context, like the present, involving a meth-\nod kept within the inventor’s control. The underlying\nlogic of the principle does not justify its extension here:\nexplaining to patients (or their parents or insurers) that\nthe procedure was experimental was not vital to keeping\nit from the public domain.\n The experimental-use exception is properly applied in\nlight of the recognized mix of § 102(b) policies—permitting\nexperimental testing, protecting existing public domain\nknowledge, limiting extension of the statutory period of\ngaining revenues due to the invention, and encouraging\nprompt disclosure. See, e.g., Lough, 86 F.3d at 1119–20.\nHere, on all the facts the jury could properly find, we\nconclude that the surgeries fall within the experimental-\nuse exception. 10\n B\n The second asserted § 102(b) ground of invalidity of\nthe asserted claims of the ’358 patent is the on-sale bar.\n\n\n\n 10 We discuss Medtronic’s new-trial challenge to a\njury instruction regarding experimental use in our discus-\nsion of the on-sale bar next.\n\n32 BARRY v. MEDTRONIC, INC.\n\n\n\n\n“A person shall be entitled to a patent unless . . . the\ninvention was . . . on sale in this country, more than one\nyear prior to the date of the application for patent in the\nUnited States[.]” 35 U.S.C. § 102(b) (2002). To be ren-\ndered invalid under the on-sale bar, an invention “must\nbe the subject of a commercial offer for sale” in the United\nStates and it “must be ready for patenting.” Pfaff, 525\nU.S. at 67; see Helsinn Healthcare S.A. v. Teva Pharms.\nUSA, Inc., No. 17-1229, slip op. at 1, 6 (U.S. Jan. 22,\n2019). But experimental use negates applicability of the\non-sale bar, as it does the public-use bar. Polara, 894\nF.3d at 1348.\n We have already concluded, in discussing the public-\nuse bar, that the ’358 patent’s invention was not ready for\npatenting before the critical date and that the August and\nOctober 2003 surgeries come within the experimental-use\nexception. Those conclusions leave only one aspect of\nMedtronic’s on-sale-bar challenge that requires discus-\nsion. 11\n Medtronic argues on one ground for a new trial re-\ngarding experimental use. It challenges a jury instruction\nthat informed the jury that “there is a difference between\n‘experimental use’ in the context of patent law and the\nway that the word ‘experiment’ is used in the context of\nmedicine.” J.A. 160. We reject this challenge.\n Although underlying questions of patent law are mat-\nters of this court’s law, we generally apply regional-circuit\nlaw on the overall standards for setting aside a verdict\nbecause of asserted error in jury instructions. See Kinetic\n\n\n\n 11 We need not discuss whether certain pre-critical-\ndate communications between Dr. Barry and two device\nmakers, DePuy and SpineVision, would constitute offers\nfor sale under “traditional contract law principles.” Allen\nEng’g, 299 F.3d at 1352.\n\nBARRY v. MEDTRONIC, INC. 33\n\n\n\nConcepts, Inc. v. Blue Sky Med. Grp., Inc., 554 F.3d 1010,\n1021 (Fed. Cir. 2009); Voda v. Cordis Corp., 536 F.3d\n1311, 1328 (Fed. Cir. 2008). The Fifth Circuit asks\nwhether “the ‘charge as a whole leaves [the court] with\nsubstantial and ineradicable doubt whether the jury [was]\nproperly guided in its deliberations’ and the challenged\ninstructions, separately or collectively, ‘affected the out-\ncome of the case.’” Janvey v. Dillon Gage, Inc. of Dallas,\n856 F.3d 377, 388 (5th Cir. 2017).\n The district court’s instruction was not an abuse of\ndiscretion. In light of Medtronic’s suggestions regarding\nthe impropriety of medical experimentation without\ninformed consent, it was reasonable for the court to\naddress potential confusion about borrowing, for § 102(b),\nlegal standards that govern experiments in quite different\nlegal contexts. And what the court said on the subject\nwas both modest and consistent with our holdings. This\ncourt has explained, specifically with regard to testing,\nthat legal standards in other contexts do not control in the\npatent-validity context. Pennwalt Corp. v. Akzona Inc.,\n740 F.2d 1573, 1580 (Fed. Cir. 1984) (“The fact that a sale\nor use occurs under a regulatory testing procedure, such\nas a FIFRA15 experimental use permit, does not make\nsuch uses or sales per se experimental for purposes of 35\nU.S.C. § 102(b).” (footnote omitted)); see also Helsinn, 855\nF.3d at 1373 (explaining that the standards for FDA\nexperimentation are different from patent law’s “ready for\npatenting” standards); Clock Spring, 560 F.3d at 1328\n(explaining that actions and regulations by the Depart-\nment of Transportation did not impact the analysis of\nwhether the inventor’s use was experimental). The\ndistrict court’s jury instruction in this case reasonably\nmade that point to reduce the potential for a confused\napplication of § 102(b)’s standards.\n\n34 BARRY v. MEDTRONIC, INC.\n\n\n\n\n C\n Medtronic’s final invalidity challenge, applicable to\nboth patents at issue here, is that Dr. Lenke invented the\nclaimed matter before Dr. Barry, rendering the asserted\nclaims invalid under 35 U.S.C. § 102(g). “A person shall\nbe entitled to a patent unless . . . before such person’s\ninvention thereof, the invention was made in this country\nby another inventor who had not abandoned, suppressed,\nor concealed it.” 35 U.S.C. § 102(g)(2) (2002). “[P]riority\nof invention goes to the first party to reduce an invention\nto practice unless the other party can show that it was the\nfirst to conceive the invention and that it exercised rea-\nsonable diligence in later reducing that invention to\npractice.” Z4 Techs., 507 F.3d at 1352.\n Reduction to practice requires that the inventor prove\nthat “(1) he constructed an embodiment or performed a\nprocess that met all the limitations . . . and (2) he deter-\nmined that the invention would work for its intended\npurpose.” Id. Medtronic had the burden of showing by\nclear and convincing evidence that Dr. Lenke reduced to\npractice first. See id. Reduction to practice is a mixed\nquestion of law and fact. Id. “[W]e must sustain the\njury’s conclusion unless the jury was not presented with\nsubstantial evidence to support any set of implicit find-\nings sufficient under the law to arrive at its conclusion.”\nEli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1362\n(Fed.Cir.2004).\n We uphold the jury’s rejection of Medtronic’s § 102(g)\nchallenge because there is substantial evidence to support\na finding that Dr. Lenke did not reduce the claimed\ninventions to practice before February 2006, after Dr.\nBarry did so (for both patents at issue here). Weaknesses\nin Medtronic’s evidence, including credibility issues,\nallowed the jury to reject Medtronic’s assertion that Dr.\nLenke, having worked on linked derotators since 2002,\nreduced the Barry-claimed inventions to practice before\n\nBARRY v. MEDTRONIC, INC. 35\n\n\n\nDr. Barry did so in 2004. See Barry, 230 F. Supp. 3d at\n659–63. At the same time, substantial evidence supports\nDr. Barry’s account of his invention and reduction to\npractice before February 9, 2006, including his 2003\nsurgeries and follow-up appointments, his securing of\nassistance from device makers, and his continued work in\n2004.\n D\n Medtronic asserted in the district court that the two\npatents are unenforceable because Dr. Barry engaged in\ninequitable conduct during patent prosecution in the\nPTO. The district court found no such inequitable con-\nduct. We affirm that determination.\n “Inequitable conduct is an equitable issue committed\nto the discretion of the trial court and is, therefore, re-\nviewed by this court under an abuse of discretion stand-\nard.” Energy Heating, LLC v. Heat On-The-Fly, LLC, 889\nF.3d 1291, 1299 (Fed. Cir. 2018). Inequitable conduct\nhere requires a showing of both materiality and intent.\nTherasense, Inc. v. Becton, Dickinson & Co., 649 F.3d\n1276, 1290 (Fed. Cir. 2011) (en banc). “[W]e review the\ndistrict court’s findings of materiality and intent for clear\nerror.” Regeneron Pharm., Inc. v. Merus N.V., 864 F.3d\n1343, 1351 (Fed. Cir. 2017) (quotation marks omitted).\n The basis of the charge of inequitable conduct is Fig-\nure 6 of both patents, which Dr. Barry initially described\nincorrectly. Both patents describe Figure 6 as displaying\n“a three frame x-ray view showing ‘before and after’ views\nof a scoliosis patient who was treated in an investigation-\nal procedure using the system and method of the present\ninvention.” ’358 patent, col. 4, lines 38–41; ’121 patent,\ncol. 4, lines 44–47. In January 2008, during the initial\nprosecution, the examiner requested clearer drawings\nthan those originally submitted, including the x-rays that\nmake up Figure 6. J.A. 5077 (“Figures 1-4 and 6-7 are\nobjected [to] as they are unclear and do not distinctly\n\n36 BARRY v. MEDTRONIC, INC.\n\n\n\n\nshow features which are pertinent to the understanding of\nthe disclosed device. New corrected drawings are re-\nquired.”). In September 2008, Dr. Barry’s counsel submit-\nted a different set of x-rays for Figure 6. The evidence in\nthis case indicates that counsel was not aware that,\ncontrary to the description, the subject of the submitted x-\nrays actually was not a patient treated with the inventive\nmethods, but instead was a patient treated on June 23,\n2003, using a method that was not the invention claimed\nin the ’358 patent (or the ’121 patent’s follow-on inven-\ntion).\n In March 2016, Dr. Barry sought to correct the de-\nscription during this litigation. For the ’121 patent, the\nPTO allowed the correction, issuing a Certificate of Cor-\nrection in August 2016. Dr. Barry simultaneously re-\nquested the same correction of the ’358 patent, but the\n’358 patent was the subject of an inter partes review\nproceeding at the time, so he withdrew the request in\nApril 2016. Dr. Barry then filed a motion to correct under\n37 C.F.R. § 1.323. The Patent Trial and Appeal Board\ndenied the motion, expressing uncertainty about why the\nmistake had happened and why Dr. Barry had taken as\nlong as he did to ask for the correction. When Dr. Barry\nagain requested a certificate of correction from the PTO\non May 25, 2017, the PTO granted the request and issued\na Certificate of Correction in June 2017.\n The district court found that there was no intent to\ndeceive the PTO on the part of Dr. Barry and his counsel.\nInequitable Conduct Op., 245 F. Supp. 3d at 804–06. The\ndistrict court found that both Dr. Barry and his counsel\nwere credible in explaining why the errors occurred,\nwithout any intent to deceive, and why the errors were\nnot discovered until this litigation. Id. We see no clear\nerror in the court’s finding that the intent required for\ninequitable conduct is absent here. We need not reach the\nissue of materiality.\n\nBARRY v. MEDTRONIC, INC. 37\n\n\n\n E\n Medtronic challenges the jury’s finding that Medtron-\nic directly infringed the patents and that it induced others\nto infringe. “Whoever actively induces infringement of a\npatent shall be liable as an infringer.” 35 U.S.C. § 271(b).\n“[I]nducement liability may arise if, but only if, [there is]\n. . . direct infringement.” Limelight Networks, Inc. v.\nAkamai Techs., Inc., 134 S. Ct. 2111, 2117 (2014) (internal\nquotation marks omitted). “The patentee must also show\nthat the alleged infringer possessed the requisite intent to\ninduce infringement, which we have held requires that\nthe alleged infringer knew or should have known his\nactions would induce actual infringements.” Eli Lilly &\nCo. v. Teva Parenteral Medicines, Inc., 845 F.3d 1357,\n1364 (Fed. Cir. 2017) (internal quotation marks omitted).\n“Circumstantial evidence can support a finding of specific\nintent to induce infringement.” Vanda Pharm. Inc. v. W.-\nWard Pharm. Int’l Ltd., 887 F.3d 1117, 1129 (Fed. Cir.\n2018); Warsaw Orthopedic, Inc. v. NuVasive, Inc., 824\nF.3d 1344, 1347 (Fed. Cir. 2016). “[I]nducement can be\nfound where there is [e]vidence of active steps taken to\nencourage direct infringement, which can in turn be found\nin advertising an infringing use or instructing how to\nengage in an infringing use.” Vanda, 887 F.3d at 1129\n(internal quotation marks omitted). Direct infringement\nand inducement are issues of fact. Sanofi v. Watson\nLabs., Inc., 875 F.3d 636, 645 (Fed. Cir. 2017); 01 Com-\nmunique Lab., Inc. v. LogMeIn, Inc., 687 F.3d 1292, 1296\n(Fed. Cir. 2012).\n 1\n Substantial evidence supports the jury’s finding of\nunderlying direct infringement by surgeons. Dr. Barry\npresented the results of a survey—the Neal Survey—that\nasked spine surgeons questions about the spine derotation\n\n38 BARRY v. MEDTRONIC, INC.\n\n\n\n\nsurgeries they had performed in the last two years. See\nJ.A. 5449–57. 12 In particular, the survey asked doctors\nwhether they had performed surgeries that included the\nfollowing steps:\n Insert 2 spinal rods through pedicle screws on\n multiple vertebrae (at any stage of the proce-\n dure)[.] Attach derotators to pedicle screws on 2\n or more vertebrae. Mechanically link 2 or more\n derotators. Link 2 or more different derotators at-\n tached to screws in a second group of 2 or more\n vertebrae (the 2 groups may have vertebrae in\n common). Both sets of linked derotators are\n moved simultaneously[.] Engage pedicle screw\n locking mechanism to hold vertebrae in derotated\n position[.]\nJ.A. 5454.\n Medtronic argues insufficiency, or even inadmissibil-\nity, of the Neal Survey because it did not specifically\nname the accused Medtronic VCM kit in asking doctors\nwhat they did. We do not think, however, that Medtronic\nhas shown error in the admission of or reliance on the\nsurvey as reasonably indicating the amount of activity by\nsurgeons that would infringe.\n The steps recited in the survey’s inquiry track the\nclaim language in the patent. The patent claim language\nincludes: “implanting . . . each pedicle screw in a pedicle\nregion of each . . . first group of multiple vertebrae of a\nspinal column,” ’358 patent, col. 6, lines 22–23; “a first\ngroup of pedicle screw engagement members which are\n\n\n 12 The parties have not specified precisely when the\nNeal Survey was conducted. But the district court said\nthat it was not completed when Dr. Barry filed a motion\nconcerning non-VCM products, a motion filed in late\nFebruary 2016. J.A. 15168 n.8.\n\nBARRY v. MEDTRONIC, INC. 39\n\n\n\nmechanically linked with said first handle means” of the\n“first pedicle screw cluster derotation tool, id., col. 6, lines\n13–17; “in a single motion simultaneously rotating said\nvertebrae of said first group of multiple vertebrae,” id.,\ncol. 6, lines 33–35; and “actuating said spinal rod en-\ngagement means to secure said vertebrae in their respec-\ntive and relative positions,” id., col. 6, lines 53–55. On the\nrecord before us, we cannot say, as a matter of law, that a\nsurvey like this one had to itemize every single claim\nelement: some claim elements might, for example, be\nessentially universal accompaniments of the steps includ-\ned in the questions, making their inclusion pointlessly\ncomplicating. To establish the inadequacy of the survey,\nMedtronic had to show with specificity that the absence of\nsome inquiry made the questions asked and answers\ngiven an unreliable indicator of the occurrence of activity\nthat constitutes direct infringement. It has not done so.\nAnd if the identification of substantive steps in the survey\nwas adequate, the omission of the “VCM” name makes no\ndifference.\n The Neal Survey asked not only about specific steps\nbut also about surgeons’ use of Medtronic’s Horizon\nSystem. J.A. 5451. According to Dr. Barry’s expert,\nmoreover, any use of the Horizon System to derotate a\nspine would have used the VCM kit. The jury could\naccept that testimony. Although Medtronic has argued\nthat use of certain tube derotators might not infringe yet\nwould have been captured by the Neal Survey about what\nsurgeons actually used, the jury could reject that conten-\ntion. There was evidence indicating that such derotators\nwould not have worked as the claims require. Medtronic\nhas also argued, in this court and in its post-trial motion,\nthat the Neal Survey would have captured use of its\nSmartLink product, which it says would be non-\ninfringing; but all evidence of SmartLink was excluded\nfrom the trial, with Medronic’s agreement, so such evi-\n\n40 BARRY v. MEDTRONIC, INC.\n\n\n\n\ndence cannot support Medtronic’s challenge to the verdict.\nBarry, 230 F. Supp. 3d at 642 n.9.\n The Neal Survey is not the only evidence of direct in-\nfringement. The jury could find that Dr. Lenke himself\nused the accused VCM kit. Dr. Lenke testified that when\nhe performed derotations, the technique involving the\nVCM kit “would be the technique . . . that [he] would use”\nand continued to use after 2010 (the year the ’358 patent\nissued). J.A. 2706–08. He also continued to educate other\nsurgeons on this technique after 2010.\n Medtronic also makes an argument directed specifi-\ncally to infringement of the ’121 patent. It points to the\nrequirement, stated in that patent’s claim 2 as quoted\nabove, of a cross-linking member connecting two handle\nmeans, each of which links three screw engagement\nmembers (for simultaneous manipulation). Medtronic\ncontends that there was insufficient evidence, from the\nNeal Survey or otherwise, of surgeons’ using such a three-\nby-three linking step with the VCM kit. We disagree.\nThe Neal Survey asked about surgeons’ using “6 or more\nderotators linked by lateral and transverse connections\nand moved simultaneously,” J.A. 5454, and Dr. Barry’s\nexpert testified that the three-by-three linking step would\nbe carried out by surgeons following the instructions on\nthe VCM kit’s lid. See Barry, 230 F. Supp. 3d at 644–45.\n In sum, the jury could properly find that there was di-\nrect infringement of both patents at issue here, of a scope\nindicated by the Neal Survey.\n 2\n Substantial evidence also supports the finding that\nMedtronic induced infringement after issuance of Dr.\nBarry’s two patents. On appeal, Medtronic focuses on the\ntiming of its inducing actions to contend otherwise, argu-\ning that there was insufficient proof of inducement after\nthe patents’ issuance. We reject the contention, agreeing\n\nBARRY v. MEDTRONIC, INC. 41\n\n\n\nwith the district court. See Barry, 230 F. Supp. 3d at\n245–46.\n VCM was on the market four years before the ’358 pa-\ntent issued and seven years before the ’121 patent issued.\nThe Neal Survey asked whether surgeons “received any\ninformation or training (formal or informal) regarding\nderotation of multiple vertebrae using linked derotators\nfrom that source,” without asking the dates of the infor-\nmation received. J.A. 5455. There was extensive evi-\ndence about the training materials provided by Medtronic\nand its sales representatives. Importantly, every VCM kit\nthat went out had instructions on it, and the Medtronic\nsales force was constantly teaching surgeons the nuances\nof and techniques for using the devices. Dr. Lenke also\ntestified that he was still instructing surgeons on using\nthe VCM kit after 2010. On the evidence of record, we\nconclude, the jury could permissibly find inducement in\nthe period after patenting.\n F\n Medtronic challenges the jury’s damages award. But\nthe challenge is dependent on our accepting Medtronic’s\nchallenges to use of the Neal Survey to establish in-\nfringement, which we have rejected. We add here only\nthat the district court carefully considered Medtronic’s\nchallenges to the methodology of the Neal Survey and\ndenied Medtronic’s motion to exclude the survey, conclud-\ning that Medtronic’s criticisms went to the weight of the\nevidence, not its relevance and reliability. Barry, 230 F.\nSupp. 3d at 641. We see no abuse of discretion in that\nevidentiary ruling.\n III\n For the foregoing reasons, we reject Medtronic’s chal-\nlenges on appeal and affirm the judgment of the district\ncourt.\n Costs to Dr. Barry.\n\n42 BARRY v. MEDTRONIC, INC.\n\n\n\n\n AFFIRMED\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n MARK A. BARRY,\n Plaintiff-Appellee\n\n v.\n\n MEDTRONIC, INC.,\n Defendant-Appellant\n ______________________\n\n 2017-2463\n ______________________\n\n Appeal from the United States District Court for the\nEastern District of Texas in No. 1:14-cv-00104-RC, Chief\nJudge Ron Clark.\n ______________________\n[END_CASE]",
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4,584,769 | UNITED STATES CAPITOL POLICE, Petitioner v. OFFICE OF COMPLIANCE, Cross-Applicant Fraternal Order of Police, District of Columbia Lodge No. 1, U.S. Capitol Police Labor Committee, Intervenor | U.S. Capitol Police v. Office of Compliance | 2019-01-25 | 2018-1201, 2018-1395 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Newman, Lourie, Clevenger", "parties": "", "opinions": [{"author": "CLEVENGER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n UNITED STATES CAPITOL POLICE,\n Petitioner\n\n v.\n\n OFFICE OF COMPLIANCE,\n Cross-Applicant\n\n FRATERNAL ORDER OF POLICE, DISTRICT OF\n COLUMBIA LODGE NO. 1, U.S. CAPITOL POLICE\n LABOR COMMITTEE,\n Intervenor\n ______________________\n\n 2018-1201, 2018-1395\n ______________________\n\n Petitions for review of a decision of the Board of Di-\nrectors of the Office of Compliance in No. 15-LMR-02\n(CA).\n ______________________\n\n Decided: January 25, 2019\n ______________________\n\n KELLY MARISSA SCINDIAN, Office of Employment\nCounsel, United States Capitol Police, Washington, DC,\nargued for petitioner. Also represented by FREDERICK M.\nHERRERA.\n\n JOHN D. UELMEN, Office of the General Counsel,\nUnited States Office of Compliance, Washington, DC,\n\f2 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nargued for cross-applicant. Also represented by JULIA\nAKINS CLARK; SIMONE N. JENKINS, Congressional Office of\nCompliance, Washington, DC.\n\n DAVID WILLIAM RICKSECKER, Woodley & McGillivary\nLLP, Washington, DC, argued for intervenor.\n ______________________\n\nBefore NEWMAN, LOURIE, and CLEVENGER, Circuit Judges.\nCLEVENGER, Circuit Judge.\n On September 25, 2017, the Board of Directors of the\nCongressional Accountability Office of Compliance\n(“Board”) issued a decision stating that the United States\nCapitol Police (“Police”) committed an unfair labor prac-\ntice when it refused to comply with a decision of an arbi-\ntrator made pursuant to a collective bargaining\nagreement to which the Police is a party. U.S. Capitol\nPolice and Fraternal Order of Police, D.C. Lodge No. 1\nU.S. Capitol Police Labor Comm., No. 15–LMR–02, 2017\nWL 4335143 (C.A.O.C. Sept. 25, 2017).\n BACKGROUND\n The Congressional Accountability Act of 1995 (“Act”),\namong other things, affords congressional employees the\nright to join together in bargaining units, bargain with\ntheir employer over conditions of employment, enter\ncollective bargaining agreements, and resolve disputes\nthrough grievance and arbitration procedures specified in\nthose collective bargaining agreements. 2 U.S.C. §§ 1301–\n1438. 1 The Act achieves those goals by incorporation of\n\n\n 1 The CAA was amended on December 21, 2018.\nSee Congressional Accountability Act of 1995 Reform Act,\nPub L. No. 115-397, 132 Stat. 5297 (2018). All citations to\nthe Act refer to the applicable provisions in effect before\nthe 2018 amendments, unless otherwise indicated.\n\fUNITED STATES CAPITOL POLICE v. OOC 3\n\n\n\nmany provisions found in chapter 71 of Title 5 of the U.S.\nCode relating to federal service labor-management rela-\ntions. See, e.g., id. § 1351 (incorporating provisions in\nchapter 71 of Title 5). The Act created the Office of Com-\npliance (“OOC”), which is overseen by its Board. Id.\n§ 1381. For labor-management relations arising under\nthe Act, the Board exercises the authorities of the Federal\nLabor Relations Authority under specified sections of\nchapter 71. Id. § 1351(c)(1). The Board is authorized to\nissue regulations to carry out the Act, and to submit a\nmatter presented to it to a hearing officer, subject to\nreview by the Board. Id. §§ 1351(c)(1), 1351(d)–(e), 1384.\n The Fraternal Order of Police, District of Columbia\nLodge No. 1, U.S. Capitol Police Labor Committee (“Un-\nion”) entered into a Collective Bargaining Agreement\n(“CBA”) with the Police, effective June 8, 2010. The CBA\nprovides that employee termination (defined as “removal”)\nis a disciplinary action subject to the grievance and arbi-\ntration provisions of the CBA. J.A. 691, 697–98, 701–02.\nSection 32.14 of the CBA provides that when the griev-\nance and arbitration processes are invoked, “[t]he decision\nof the arbitrator is final and binding.” J.A. 702. The\nrefusal by an agency to comply with a final arbitration\naward constitutes an unfair labor practice under the Act.\n2 U.S.C. § 1351(a)(1) (incorporating 5 U.S.C. § 7116(a)(1),\n(8) into the Act).\n The Police is headed by the Chief of Police, who is ap-\npointed by and serves at the pleasure of the Capitol Police\nBoard, which was created in 1867, and is composed of the\nArchitect of the Capitol as well as the Sergeants at Arms\nof the U.S. House of Representatives and the U.S. Senate.\nId. §§ 1901, 1961(a), 1969(a). The Capitol Police Board\noversees the Police and supports its mission. H.R.J. Res.\n2, 108th Cong. § 1014 (2003). The Chief of Police, an ex\nofficio member of the Capitol Police Board, “is authorized\nto appoint, hire, suspend with or without pay, discipline,\ndischarge, and set the terms, conditions, and privileges of\n\f4 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nemployment of employees of the Capitol Police, subject to\nand in accordance with applicable laws and regulations.”\n2 U.S.C. § 1907(e)(1)(A). The United States Capitol Police\nAdministrative Technical Corrections Act of 2009 (“TCA”),\nPub. L. No. 111-145, 124 Stat. 49 (2010), amended a\nprevious law providing for approval of Chief of Police\ntermination decisions by the Committee on House Admin-\nistration of the House of Representatives and the Com-\nmittee on Rules and Administration of the Senate to\ninstead place that approval authority in the Capitol Police\nBoard. Compare 2 U.S.C. § 1907(e)(1)(B)(i) (2006), with\nid. § 1907(e)(1)(B) (2012). With regard to the role of the\nCapitol Police Board in an employee termination, the TCA\nreads:\n The Chief may terminate an officer, member, or\n employee only after the Chief has provided notice\n of the termination to the Capitol Police Board (in\n such manner as the Board may from time to time\n require) and the Board has approved the termina-\n tion, except that if the Board has not disapproved\n the termination prior to the expiration of the 30-\n day period which begins on the date the Board re-\n ceives the notice, the Board shall be deemed to\n have approved the termination.\n2 U.S.C. § 1907(e)(1)(B) (2012).\n Under the Act, the duty to bargain in good faith over\nconditions of employment extends to such conditions “to\nthe extent not inconsistent with any Federal law or any\nGovernment-wide rule or regulation . . . .” 5 U.S.C.\n§§ 7102, 7117(a)(1); see also 2 U.S.C. § 1351(a)(1) (incor-\nporating those provisions of chapter 71 of Title 5 into the\nAct). In addition, matters “specifically provided for by\nFederal statute” are not “conditions of employment”\nsubject to collective bargaining, and therefore fall outside\nthe duty to bargain. 5 U.S.C. § 7103(a)(14)(C), effective\nunder the Act pursuant to Office of Compliance Final\n\fUNITED STATES CAPITOL POLICE v. OOC 5\n\n\n\nRegulations § 2421.3(m)(3) (“OOC Regs.”); see also 142\nCong. Rec. H10237, at H10370–71 (daily ed. Sept. 12,\n1996) (noticing the OOC’s issuance of final regulations).\n In this case, the Police on June 28, 2013, terminated\none of its officers for misconduct, and the termination was\nspecifically approved by the Capitol Police Board. The\nterminated officer invoked his rights under the CBA,\nseeking to arbitrate the question of whether his termina-\ntion was proper. The arbitrator on May 13, 2014, held\nthat for the misconduct shown, termination was excessive,\nand instead a 30-day suspension was proper. The arbitra-\ntor directed the Police to reinstate the officer, without\nsetting a deadline for reinstatement, and awarded the\nofficer back pay and benefits. The Police filed exceptions\nto the arbitration award with the Board, which in due\ncourse the Board denied on December 12, 2014. After\nback and forth communications among the Union, the\nPolice, and the arbitrator over whether the Police would\ncomply with the arbitrator’s decision, the arbitrator on\nFebruary 18, 2015, gave the Police a 30-day deadline for\ncompliance. Just a few days before the deadline, the\nPolice told the Union for the first time that it absolutely\nrefused to comply with the direction of the arbitrator to\nreinstate the officer and provide the Union with infor-\nmation it previously requested.\n The Union filed charges with the OOC alleging that\nthe refusal by the Police to comply with the arbitrator’s\ndecision constituted an unfair labor practice, and the\nGeneral Counsel of the OOC filed an unfair labor practice\ncomplaint with the Board. The hearing officer assigned to\nthe complaint sustained the charge, and on review the\nBoard agreed with the hearing officer.\n Before the Board, the Police argued on the merits that\nthe arbitrator lacked jurisdiction over the subject of\nemployee termination. Without jurisdiction, the arbitra-\ntor’s award would be of no effect, and consequently refusal\n\f6 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nto comply with the arbitrator’s decision could not consti-\ntute an unfair labor practice. In addition, the Police\nargued that the Union’s unfair labor practice charge was\nuntimely filed, and consequently the hearing officer’s\ndecision has no effect. The Police’s jurisdictional argu-\nments, repeated now on appeal, contended that the sub-\nject of employee termination is barred from inclusion in a\nCBA because inclusion would be inconsistent with law. In\naddition, the Police argued that the subject of employee\ntermination is specifically provided for by federal statute,\nand thus excluded from the scope of a CBA.\n The Board held that the unfair labor practice charge\nwas timely filed, and rejected the Police’s jurisdictional\narguments. On September 25, 2017, the Board issued its\ndecision and order. The order specifies that the Police\ncease and desist from failing to fully implement the\narbitrator’s May 13, 2014, award, as supplemented by the\narbitrator’s June 17, 2014, order.\n The Police petitions this court for review of the\nBoard’s decision, and the OOC for its part crossapplies to\nthis court for an order enforcing the Board’s decision and\norder. We have jurisdiction over the Police’s petition\nunder 2 U.S.C. § 1407(a)(1)(D) and jurisdiction over the\nOOC’s application under 2 U.S.C. § 1407(a)(2). We apply\nthe Administrative Procedure Act (“APA”) standard of\nreview, 5 U.S.C. § 706, to enforcement actions brought\nunder § 1407(a)(2). U.S. Capitol Police v. Office of Com-\npliance (“Capitol Police I”), 908 F.3d 748, 758 (Fed. Cir.\n2018). As for the Police’s petition, we apply the standard\nof review set out in 2 U.S.C. § 1407(d), which we have said\n“is essentially identical to the APA standard.” Id. at 755\nn.4.\n For the reasons set forth below, we deny the Police’s\npetition and grant the OOC’s application.\n\fUNITED STATES CAPITOL POLICE v. OOC 7\n\n\n\n THE ISSUES\n This case does not present any challenge to the merits\nof the arbitrator’s decision to reinstate the officer in\nquestion, nor is there any question that the CBA, to which\nthe Police is bound, required an arbitrator vested with\njurisdiction to make a final decision in the case. The only\nquestion before us is whether the Police committed an\nunfair labor practice. The Police does not contest that\nrefusal to comply with an arbitrator’s award under a CBA\nis an unfair labor practice. The Police argues here, as\nbelow, that the arbitrator had no jurisdiction over the\ncase in the first place, leaving the arbitral award a nullity\non its face, and thus refusal to comply with the award\ncannot constitute an unfair labor practice.\n The Police’s jurisdictional argument is presented in\ntwo forms. The first is that the subject of employee ter-\nmination is excluded entirely from CBAs covering legisla-\ntive branch employees. That argument is premised on the\nfact that the Act does not provide for judicial review of\nemployee termination decisions, and borrows its strength\nfrom cases decided under the Civil Service Reform Act of\n1978 (“CSRA”), Pub. L. No. 95-454, § 205, 92 Stat. 1111,\n1143. Under that statutory regime, which covers execu-\ntive branch employees, certain employees lack judicial\nreview of adverse actions taken against them by executive\nbranch agencies. In a number of post-CSRA cases, execu-\ntive branch employees lacking statutory appeal rights\nunder the CSRA sought to obtain judicial review of ad-\nverse actions taken against them in other fora. In United\nStates v. Fausto, 484 U.S. 439 (1988), and subsequent\nrelated cases, it was held that where Congress denied\ndirect judicial review in the CSRA, it would violate the\nCSRA to permit an alternative avenue of judicial review.\nBecause the Act provides no direct judicial review for\nemployee termination, and because the CBA grants\nreview of employee termination, the Police argues the\nsituation under the CBA is like that in the post-CSRA\n\f8 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\ncases, where a party denied judicial review by the CSRA\nwas denied judicial review elsewhere. The Police thus\ncontends that it is inconsistent with that CSRA body of\nlaw to allow employee termination to be covered in a CBA.\nThe Police argues that the above body of law should lead\nthis court to conclude that it would violate the Act to\npermit arbitration over employee termination. The Act on\nits face permits the subject of employee termination to be\nincluded in a CBA, but the Police argues that to give the\nAct its plain meaning will make the Act inconsistent with\nlaw.\n The Police’s second jurisdictional argument rests on\nits view that the subject of employee termination is not a\ncondition of employment, because it has been “specifically\nprovided for” by the TCA, and therefore the subject of\nemployee termination must be deemed excluded from the\nCBA.\n The Police also asserts that the unfair labor practice\ncomplaint filed by the Union was untimely, and as such\nthe hearing officer’s decision cannot stand, and that the\nBoard’s determination that the Police committed an\nunfair labor practice by its refusal to respond to the\nUnion’s information requests is erroneous.\n The OOC does not take issue in this case with the Po-\nlice’s view that lack of subject matter authority over an\nissue renders an arbitral award a nullity and hence that\nnon-compliance is not an unfair labor practice. Instead,\nthe OOC argues that the Police’s grounds for removing\nemployee termination from the CBA lack merit. The OOC\nalso argues that the Police’s challenge to the timeliness of\nthe unfair labor practice complaint lacks merit, as well as\nthe Police’s challenge to the unfair labor practice offense\nbased on failure to provide requested information.\n We address the Police’s arguments in turn below.\n\fUNITED STATES CAPITOL POLICE v. OOC 9\n\n\n\n EMPLOYEE TERMINATION AS AN IMPERMISSIBLE CBA\n SUBJECT\n As noted above, the Police fashions the broad subject\nmatter exclusion argument as based on case law devel-\noped under the CSRA. In its brief, the Police argues that\nit would be inconsistent with law to allow employee\ntermination to be decided under a CBA. That argument\nby the Police has been rejected recently by this court, and\nhence need not be addressed in great detail here.\n In Capitol Police I, the Police argued, as here, that\nemployee termination is not legal subject matter for a\nCBA, because allowing the subject in a CBA would be\ninconsistent with law. 908 F.3d at 763. Capitol Police I\ninvolved an attempt by the Police to avoid bargaining over\nthe subject of employee termination, id. at 753, whereas\nthe Police attempts here to avoid an unfair labor practice\non the ground that the subject of employee termination is\nwholly outside the reach of a CBA. While the fact setting\nof the two cases is different, the jurisdictional argument is\nthe same. The complete rejection of the Police’s CSRA-\nbased jurisdictional contention in Capitol Police I com-\nmands its rejection here.\n In Capitol Police I, this court explained in detail why\nthe subject matter exclusion argument fails. See id. at\n763–65. In short, Fausto dealt with executive branch\nemployees who sought to end run the CSRA to obtain\njudicial review when Congress had specified that those\nemployees should not have judicial review. Id. at 763.\nThe related cases in our sister circuits, mainly Depart-\nment of the Treasury, Office of Chief Counsel v. Federal\nLabor Relations Authority, 873 F.2d 1467 (D.C. Cir. 1989),\nand U.S. Department of Health & Human Services v.\nFederal Labor Relations Authority, 858 F.2d 1278 (7th\nCir. 1988), which were discussed in Capitol Police I, dealt\nwith executive branch employees who were also seeking\nto end run the CSRA’s denial of judicial review by asser-\n\f10 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\ntion of arbitration remedies and similarly held that such\nremedies would violate the CSRA. Capitol Police I, 908\nF.3d at 763–64. But those cases dealt with the CSRA,\nwhich created the Merit Systems Protection Board\n(“MSPB”), and gave certain classes of executive branch\nemployees the right to challenge their terminations by\nelection either through the MSPB hearing mechanism, or\nthrough arbitration where available under a CBA, but not\nboth. Id. at 764 (citing 5 U.S.C. § 7121(e)(1)). Under\neither avenue, the initial adjudication is reviewed in this\ncourt on appeal. The Act, on the other hand, does not\nafford some legislative branch employees a choice between\naccess to the MSPB or arbitration, and deny such choice\nto other legislative branch employees. The post-CSRA\ncase law was necessary to preserve the structure of the\nCSRA. Denying arbitration of employee termination is\nnot necessary to preserve the structure of the Act, which\nby its explicit terms allows for arbitration of employee\ntermination. Id. at 764–65.\n Capitol Police I rejected the analogy to Fausto and its\nprogeny. Id. at 763–65. Indeed, the lead circuit court\ncase relied on by the Police, as explained in Capitol Police\nI, supports the conclusion that the absence of judicial\nreview of legislative employee termination under the Act\ndoes not undermine arbitrator review of termination\ndecisions. See id. at 764 (discussing Dep’t of the Treasury,\n873 F.2d 1467). We again reject the Police’s Fausto-based\njurisdictional argument.\n THE TCA AS A BAR TO ARBITRATION OF EMPLOYEE\n TERMINATION\n The Police mounts two jurisdictional arguments based\non the TCA, which as noted above provides a form of\nratification of an employee termination decision of the\nChief of Police by the Capitol Police Board. First, the\nPolice asserts that to permit arbitration over employee\ntermination would be inconsistent with law, meaning\n\fUNITED STATES CAPITOL POLICE v. OOC 11\n\n\n\ninconsistent with the TCA because of the Capitol Police\nBoard’s ratification authority. That argument was\nsquarely rejected in Capitol Police I, and we need not\nrepeat our detailed statutory analysis of the TCA, which\nled us to conclude that the TCA does not stand in the way\nof arbitration of employee termination. Id. at 760–62.\n The Police also argues that the TCA should be inter-\npreted to specifically provide for employee termination,\neliminating the subject of employee removal from arbitra-\ntion because, if specifically provided for by law, it would\nnot be a condition of employment. OOC Regs.\n§ 2421.3(m)(3). The rationale underlying both jurisdic-\ntional arguments based on the TCA is similar. The ra-\ntionale is that the TCA gave the Capitol Police Board\nsufficient authority over employee termination both to\n“specifically provide” for employee termination and to\nmake arbitration over employee termination inconsistent\nwith the TCA.\n The Chief of Police has the authority to decide wheth-\ner an officer should be terminated. 2 U.S.C.\n§ 1907(e)(1)(A). Once the Chief of Police exercises his\ndiscretion and orders a termination, the TCA gives the\nCapitol Police Board three options. It can act specifically\nto ratify that decision, or act specifically to disapprove a\ntermination. Id. § 1907(e)(1)(B). Its third option is to\nremain silent, taking no position. Id. If the Capitol Police\nBoard elects the third option, it fails to act and the TCA\nacts for it by providing ratification of the termination\ndecision made by the Chief of Police. Id. Ratification\nprovided by the third option provides approval by the\nforce of law, not by an active decision by the Capitol Police\nBoard. In short, the TCA does not require the Capitol\nPolice Board’s actual participation in employee termina-\ntion decisions.\n The Supreme Court has interpreted the language “to\nthe extent such matters are specifically provided for by\n\f12 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nFederal statute.” In Fort Stewart Schools v. Federal\nLabor Relations Authority, 495 U.S. 641 (1990), the statu-\ntory language was construed narrowly to mean that a\nfederal statute must occupy a subject entirely in order to\nspecifically provide for a subject and thus make it not a\ncondition of employment. Id. at 645–50. In that case, the\nissue was wages and benefits for employees of two ele-\nmentary schools owned and operated by the U.S. Army.\nId. at 643. The schools refused to bargain over the issue\non the ground that wages and benefits for the overwhelm-\ning majority of Executive Branch employees are fixed by\nlaw, in accordance with the General Schedules of the Civil\nService Act, and therefore are specifically provided for by\nfederal statute. Id. at 643–50. The Supreme Court\nrejected the school’s argument, because the school’s\nemployees were among a miniscule minority of Executive\nBranch federal employees whose wages and benefits are\nexcluded from operation of the General Schedules. Id. at\n649. Because the subject of wages and benefits for all\nExecutive Branch federal employees is not completely\ngoverned by the statute cited, the Supreme Court held\nthat the subject is not specifically provided for by federal\nlaw. Id. at 645–50.\n The narrow reading of the “specifically provided for”\nlanguage in Fort Stewart has been applied in subsequent\ncases. Where a federal statute completely occupies a\nsubject, leaving entire authority over a subject within the\nstatute, the statute is considered to specifically provide\nfor the subject. Conversely, where a federal statute refers\nto a matter and provides for it but leaves some authority\nover the subject outside the reach of the statute, the\nstatute does not specifically provide for the subject. See\nDep’t of the Air Force v. Fed. Labor Relations Auth., 844\nF.3d 957, 964 (D.C. Cir. 2016); Int’l Ass’n of Machinists &\nAerospace Workers Franklin Lodge No. 2135 and U.S.\nDep’t of the Treasury Bureau of Engraving & Printing, 50\nF.L.R.A. 677, 681–84 (1995).\n\fUNITED STATES CAPITOL POLICE v. OOC 13\n\n\n\n Because the TCA gives the Capitol Police Board only a\npiece of the subject matter of employee termination, and\neven that piece—its stated ratification of the actual\ntermination decision made by the Chief of Police—can be\navoided by remaining silent in the face of termination\nordered by the Chief of Police, it hardly can be said that\nthe TCA meets the test of Fort Stewart.\n We also note that we previously observed in Capitol\nPolice I that the TCA falls short of the Fort Stewart test.\nThat observation was made in connection with the “specif-\nically provided for” jurisdictional argument in the Police’s\nopening brief, after the Police at oral argument aban-\ndoned the specifically provided for argument under the\nTCA in favor of its alternative “inconsistent with law”\nargument under the TCA. Capitol Police I, 908 F.3d at\n760 n.10. Moreover, it is also noteworthy that the Police\nin its reply brief in this case did not respond to the OOC’s\ncontention that the TCA is not a “specifically provided for”\nstatute under Fort Stewart.\n TIMELINESS OF THE UNFAIR LABOR PRACTICE COMPLAINT\n An unfair labor practice charge must be filed within\n180 days of the occurrence of the alleged unfair labor\npractice. See 2 U.S.C. § 1351(c)(2) (incorporating 5 U.S.C.\n§ 7118(a)(4)(A)). The Union charged that the Police\ncommitted an unfair labor practice when it failed to\nimplement the May 13, 2014 arbitrator’s award that had\nbeen supplemented and clarified by the arbitrator’s June\n17, 2015 final order. The Union’s charge, filed July 28,\n2015, was challenged by the Police as untimely.\n The limitations period for filing an unfair labor prac-\ntice charge is triggered in one of two ways: “(1) when a\nparty expressly notifies a party that it will not comply\nwith the obligations required by an award, or (2) when an\naward establishes a deadline for implementing obligations\nrequired by the award and the deadline passes without\nthe party taking any action to implement the award.”\n\f14 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nU.S. Dep’t of the Treasury Internal Revenue Serv. Wash.\nD.C. and Nat’l Treasury Emps. Union, 61 F.L.R.A. 146,\n150 (2005); accord Nat’l Treasury Emps. Union v. Fed.\nLabor Relations Auth. (“NTEU”), 392 F.3d 498, 500–01\n(D.C. Cir. 2004).\n The timeline concerning the arbitrator’s award in this\ncase starts with the date of the initial arbitration award:\n 1. May 13, 2014 – arbitrator directs the officer to\n be returned to service, without setting a dead-\n line for compliance.\n 2. May 22, 2014 – Union requests additional in-\n formation from the Police necessary to imple-\n ment the arbitration award.\n 3. June 12, 2014 – Police files exceptions to the\n arbitration award with the Board, and arbitra-\n tor stays implementation of his award pending\n Board review.\n 4. December 12, 2014 – Board denies the Police’s\n exceptions.\n 5. December 16, 2014 – arbitrator removes the\n stay on implementation of the May 13, 2014\n award, and directs the Police to provide the\n Union with its May 22, 2014 information re-\n quest, without setting any deadline for compli-\n ance.\n 6. December 19, 2014 – Police responds to the ar-\n bitrator’s December 16, 2014 communication,\n acknowledging its receipt and saying “[w]e will\n continue to work with the Union’s counsel on\n issues related to the award . . . .” J.A. 135.\n 7. January 15, 2015 – Union sends email mes-\n sage to the Police, asking for the status on its\n information request and when the officer\n should report for duty.\n\fUNITED STATES CAPITOL POLICE v. OOC 15\n\n\n\n 8. January 26, 2015 – arbitrator writes the Police\n and the Union, inquiring about the status of\n the officer’s reinstatement, and if reinstate-\n ment had not occurred, asking to be informed\n when the parties expected to fully enforce the\n arbitration award, without setting any dead-\n line for compliance.\n 9. January 26, 2015 – Union notifies the arbitra-\n tor that the Police has not reinstated the of-\n ficer and has ignored the Union’s information\n request.\n 10. January 26, 2015 – counsel for the Police re-\n sponds to the January 15, 2015 inquiry from\n the Union, saying “I am waiting to hear from\n my client as to how it wishes to proceed, and\n will notify you once I have a response. I antic-\n ipate knowing something in the next couple of\n weeks.” J.A. 498.\n 11. February 11, 2015 – Union emails the arbitra-\n tor complaining that it has heard nothing from\n the Police about the officer’s reinstatement or\n its information request, and requesting the ar-\n bitrator to order the Police to comply with the\n reinstatement and the information request.\n 12. February 18, 2015 – arbitrator communicates\n to both parties, directing the Police to comply\n in full with respect to reinstatement and\n providing the Union with the requested infor-\n mation, setting a 30-day deadline for compli-\n ance.\n 13. March 13, 2015 – Police notifies the Union that\n it will not comply with the arbitration award,\n citing jurisdictional grounds.\n\f16 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\n 14. March 23, 2015 – arbitrator notifies the parties\n of the procedures he will use to determine\n compensation for the officer.\n 15. June 17, 2015 – arbitrator issues a final order\n clarifying and amending the May 13, 2014\n award, calculating compensation and ordering\n the Police to reinstate the officer immediately.\n 16. July 28, 2015 – Union files its unfair labor\n practice charge.\n The Police argues that the 180-day time period should\nrun starting sometime between December 15, 2014, the\nfirst business day after the Board denied the Police’s\nexceptions to the arbitration award, and January 26,\n2015, when it allegedly was clear to the Union that the\nPolice would not meet its obligations. The Police contends\nthat the time for filing should begin to run when the\nUnion knew or should have known that the Police would\nnot comply. Here, the Police tries to impose what is\nknown as the discovery rule as the test for when the filing\ntime should be triggered. But the discovery rule has no\nplace when measuring the time for filing an unfair labor\npractice complaint, having been flatly rejected in NTEU\nin favor of the standard set forth above. 392 F.3d at 501.\nAnd even if the discovery rule had any weight in this case,\nthe Police could hardly claim that the Union knew or\nshould have known that the Police would not comply\nduring a time when the Police told the Union it did not\nknow whether its client would comply. The Police’s\nposition on the test for measuring time wholly lacks\nmerit.\n Under the correct standard, the question is whether\nmore than 180 days passed after the Police gave actual\nnotice that it would not comply, or after the deadline set\nby the arbitrator for compliance.\n\fUNITED STATES CAPITOL POLICE v. OOC 17\n\n\n\n The record demonstrates that the deadline for compli-\nance set by the arbitrator on February 18, 2015, was\nMarch 20, 2015. 2 And the date on which the Police an-\nnounced it would not comply was March 13, 2015. The\nunfair labor practice complaint was filed within 180 days\nof both March 13 and 20, and therefore was timely filed.\n FAILURE TO PROVIDE INFORMATION AS AN UNFAIR\n LABOR PRACTICE\n The Police argued below that failure to provide the in-\nformation requested by the Union as necessary for it to\nparticipate in implementation of the arbitral award is not\nan unfair labor practice. Its argument was based on its\njurisdictional challenges to arbitration over employee\nterminations, and on the alleged failure of the arbitrator\nto comply with CBA provisions covering requests for\ninformation. The hearing officer rejected the challenge,\nstating that the CBA provided sufficient authority for the\narbitrator to enforce information requests.\n The Board sustained the hearing officer’s determina-\ntion that failure to provide the requested documents\nconstituted an unfair labor practice. In doing so, the\nBoard rejected the primary jurisdictional challenge (as did\nCapitol Police I and as do we), and affirmed the hearing\nofficer’s findings that the arbitrator exercised proper\nauthority under the CBA in pressing the Police to comply\nwith the Union’s information requests.\n\n\n\n\n 2 Although the Board implied that the 30-day dead-\nline concluded on March 17, 2015, we note that 30 days\nfrom the date of the arbitrator’s decision is March 20,\n2015. See J.A. 6 (“[T]he Arbitrator ordered the [Police] to\ncomply with his Award within 30 days, i.e., by March 17,\n2015.”); J.A. 507 (arbitrator’s decision dated February 18,\n2015, setting 30-day deadline).\n\f18 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\n The Police repeats here its previous challenge to the\nBoard’s decision sustaining the unfair labor practice\ncharge for failure to comply with the Union’s information\nrequests. Like the Board, we conclude that the Police’s\nchallenge lacks merit.\n CONCLUSION\n For the reasons set forth above, we hold that the Po-\nlice’s petition for review lacks merit, and must be denied.\nAs the Police’s challenge to the OOC’s application seeking\nenforcement of the Board’s decision and order depends on\nits jurisdictional challenge to the Board’s final decision,\nits opposition to the OOC’s application fails. We therefore\ngrant the OOC’s application for enforcement of the\nBoard’s September 25, 2017 decision and order.\n DENIED AS TO 2018-1201 AND GRANTED AS TO\n 2018-1395\n COSTS\n No costs.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362022/", "author_raw": "CLEVENGER, Circuit Judge."}]} | NEWMAN | LOURIE | CLEVENGER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4584769/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES CAPITOL POLICE, Petitioner v. OFFICE OF COMPLIANCE, Cross-Applicant Fraternal Order of Police, District of Columbia Lodge No. 1, U.S. Capitol Police Labor Committee, Intervenor\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n UNITED STATES CAPITOL POLICE,\n Petitioner\n\n v.\n\n OFFICE OF COMPLIANCE,\n Cross-Applicant\n\n FRATERNAL ORDER OF POLICE, DISTRICT OF\n COLUMBIA LODGE NO. 1, U.S. CAPITOL POLICE\n LABOR COMMITTEE,\n Intervenor\n ______________________\n\n 2018-1201, 2018-1395\n ______________________\n\n Petitions for review of a decision of the Board of Di-\nrectors of the Office of Compliance in No. 15-LMR-02\n(CA).\n ______________________\n\n Decided: January 25, 2019\n ______________________\n\n KELLY MARISSA SCINDIAN, Office of Employment\nCounsel, United States Capitol Police, Washington, DC,\nargued for petitioner. Also represented by FREDERICK M.\nHERRERA.\n\n JOHN D. UELMEN, Office of the General Counsel,\nUnited States Office of Compliance, Washington, DC,\n\f2 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nargued for cross-applicant. Also represented by JULIA\nAKINS CLARK; SIMONE N. JENKINS, Congressional Office of\nCompliance, Washington, DC.\n\n DAVID WILLIAM RICKSECKER, Woodley & McGillivary\nLLP, Washington, DC, argued for intervenor.\n ______________________\n\nBefore NEWMAN, LOURIE, and CLEVENGER, Circuit Judges.\nCLEVENGER, Circuit Judge.\n On September 25, 2017, the Board of Directors of the\nCongressional Accountability Office of Compliance\n(“Board”) issued a decision stating that the United States\nCapitol Police (“Police”) committed an unfair labor prac-\ntice when it refused to comply with a decision of an arbi-\ntrator made pursuant to a collective bargaining\nagreement to which the Police is a party. U.S. Capitol\nPolice and Fraternal Order of Police, D.C. Lodge No. 1\nU.S. Capitol Police Labor Comm., No. 15–LMR–02, 2017\nWL 4335143 (C.A.O.C. Sept. 25, 2017).\n BACKGROUND\n The Congressional Accountability Act of 1995 (“Act”),\namong other things, affords congressional employees the\nright to join together in bargaining units, bargain with\ntheir employer over conditions of employment, enter\ncollective bargaining agreements, and resolve disputes\nthrough grievance and arbitration procedures specified in\nthose collective bargaining agreements. 2 U.S.C. §§ 1301–\n1438. 1 The Act achieves those goals by incorporation of\n\n\n 1 The CAA was amended on December 21, 2018.\nSee Congressional Accountability Act of 1995 Reform Act,\nPub L. No. 115-397, 132 Stat. 5297 (2018). All citations to\nthe Act refer to the applicable provisions in effect before\nthe 2018 amendments, unless otherwise indicated.\n\fUNITED STATES CAPITOL POLICE v. OOC 3\n\n\n\nmany provisions found in chapter 71 of Title 5 of the U.S.\nCode relating to federal service labor-management rela-\ntions. See, e.g., id. § 1351 (incorporating provisions in\nchapter 71 of Title 5). The Act created the Office of Com-\npliance (“OOC”), which is overseen by its Board. Id.\n§ 1381. For labor-management relations arising under\nthe Act, the Board exercises the authorities of the Federal\nLabor Relations Authority under specified sections of\nchapter 71. Id. § 1351(c)(1). The Board is authorized to\nissue regulations to carry out the Act, and to submit a\nmatter presented to it to a hearing officer, subject to\nreview by the Board. Id. §§ 1351(c)(1), 1351(d)–(e), 1384.\n The Fraternal Order of Police, District of Columbia\nLodge No. 1, U.S. Capitol Police Labor Committee (“Un-\nion”) entered into a Collective Bargaining Agreement\n(“CBA”) with the Police, effective June 8, 2010. The CBA\nprovides that employee termination (defined as “removal”)\nis a disciplinary action subject to the grievance and arbi-\ntration provisions of the CBA. J.A. 691, 697–98, 701–02.\nSection 32.14 of the CBA provides that when the griev-\nance and arbitration processes are invoked, “[t]he decision\nof the arbitrator is final and binding.” J.A. 702. The\nrefusal by an agency to comply with a final arbitration\naward constitutes an unfair labor practice under the Act.\n2 U.S.C. § 1351(a)(1) (incorporating 5 U.S.C. § 7116(a)(1),\n(8) into the Act).\n The Police is headed by the Chief of Police, who is ap-\npointed by and serves at the pleasure of the Capitol Police\nBoard, which was created in 1867, and is composed of the\nArchitect of the Capitol as well as the Sergeants at Arms\nof the U.S. House of Representatives and the U.S. Senate.\nId. §§ 1901, 1961(a), 1969(a). The Capitol Police Board\noversees the Police and supports its mission. H.R.J. Res.\n2, 108th Cong. § 1014 (2003). The Chief of Police, an ex\nofficio member of the Capitol Police Board, “is authorized\nto appoint, hire, suspend with or without pay, discipline,\ndischarge, and set the terms, conditions, and privileges of\n\f4 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nemployment of employees of the Capitol Police, subject to\nand in accordance with applicable laws and regulations.”\n2 U.S.C. § 1907(e)(1)(A). The United States Capitol Police\nAdministrative Technical Corrections Act of 2009 (“TCA”),\nPub. L. No. 111-145, 124 Stat. 49 (2010), amended a\nprevious law providing for approval of Chief of Police\ntermination decisions by the Committee on House Admin-\nistration of the House of Representatives and the Com-\nmittee on Rules and Administration of the Senate to\ninstead place that approval authority in the Capitol Police\nBoard. Compare 2 U.S.C. § 1907(e)(1)(B)(i) (2006), with\nid. § 1907(e)(1)(B) (2012). With regard to the role of the\nCapitol Police Board in an employee termination, the TCA\nreads:\n The Chief may terminate an officer, member, or\n employee only after the Chief has provided notice\n of the termination to the Capitol Police Board (in\n such manner as the Board may from time to time\n require) and the Board has approved the termina-\n tion, except that if the Board has not disapproved\n the termination prior to the expiration of the 30-\n day period which begins on the date the Board re-\n ceives the notice, the Board shall be deemed to\n have approved the termination.\n2 U.S.C. § 1907(e)(1)(B) (2012).\n Under the Act, the duty to bargain in good faith over\nconditions of employment extends to such conditions “to\nthe extent not inconsistent with any Federal law or any\nGovernment-wide rule or regulation . . . .” 5 U.S.C.\n§§ 7102, 7117(a)(1); see also 2 U.S.C. § 1351(a)(1) (incor-\nporating those provisions of chapter 71 of Title 5 into the\nAct). In addition, matters “specifically provided for by\nFederal statute” are not “conditions of employment”\nsubject to collective bargaining, and therefore fall outside\nthe duty to bargain. 5 U.S.C. § 7103(a)(14)(C), effective\nunder the Act pursuant to Office of Compliance Final\n\fUNITED STATES CAPITOL POLICE v. OOC 5\n\n\n\nRegulations § 2421.3(m)(3) (“OOC Regs.”); see also 142\nCong. Rec. H10237, at H10370–71 (daily ed. Sept. 12,\n1996) (noticing the OOC’s issuance of final regulations).\n In this case, the Police on June 28, 2013, terminated\none of its officers for misconduct, and the termination was\nspecifically approved by the Capitol Police Board. The\nterminated officer invoked his rights under the CBA,\nseeking to arbitrate the question of whether his termina-\ntion was proper. The arbitrator on May 13, 2014, held\nthat for the misconduct shown, termination was excessive,\nand instead a 30-day suspension was proper. The arbitra-\ntor directed the Police to reinstate the officer, without\nsetting a deadline for reinstatement, and awarded the\nofficer back pay and benefits. The Police filed exceptions\nto the arbitration award with the Board, which in due\ncourse the Board denied on December 12, 2014. After\nback and forth communications among the Union, the\nPolice, and the arbitrator over whether the Police would\ncomply with the arbitrator’s decision, the arbitrator on\nFebruary 18, 2015, gave the Police a 30-day deadline for\ncompliance. Just a few days before the deadline, the\nPolice told the Union for the first time that it absolutely\nrefused to comply with the direction of the arbitrator to\nreinstate the officer and provide the Union with infor-\nmation it previously requested.\n The Union filed charges with the OOC alleging that\nthe refusal by the Police to comply with the arbitrator’s\ndecision constituted an unfair labor practice, and the\nGeneral Counsel of the OOC filed an unfair labor practice\ncomplaint with the Board. The hearing officer assigned to\nthe complaint sustained the charge, and on review the\nBoard agreed with the hearing officer.\n Before the Board, the Police argued on the merits that\nthe arbitrator lacked jurisdiction over the subject of\nemployee termination. Without jurisdiction, the arbitra-\ntor’s award would be of no effect, and consequently refusal\n\f6 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nto comply with the arbitrator’s decision could not consti-\ntute an unfair labor practice. In addition, the Police\nargued that the Union’s unfair labor practice charge was\nuntimely filed, and consequently the hearing officer’s\ndecision has no effect. The Police’s jurisdictional argu-\nments, repeated now on appeal, contended that the sub-\nject of employee termination is barred from inclusion in a\nCBA because inclusion would be inconsistent with law. In\naddition, the Police argued that the subject of employee\ntermination is specifically provided for by federal statute,\nand thus excluded from the scope of a CBA.\n The Board held that the unfair labor practice charge\nwas timely filed, and rejected the Police’s jurisdictional\narguments. On September 25, 2017, the Board issued its\ndecision and order. The order specifies that the Police\ncease and desist from failing to fully implement the\narbitrator’s May 13, 2014, award, as supplemented by the\narbitrator’s June 17, 2014, order.\n The Police petitions this court for review of the\nBoard’s decision, and the OOC for its part crossapplies to\nthis court for an order enforcing the Board’s decision and\norder. We have jurisdiction over the Police’s petition\nunder 2 U.S.C. § 1407(a)(1)(D) and jurisdiction over the\nOOC’s application under 2 U.S.C. § 1407(a)(2). We apply\nthe Administrative Procedure Act (“APA”) standard of\nreview, 5 U.S.C. § 706, to enforcement actions brought\nunder § 1407(a)(2). U.S. Capitol Police v. Office of Com-\npliance (“Capitol Police I”), 908 F.3d 748, 758 (Fed. Cir.\n2018). As for the Police’s petition, we apply the standard\nof review set out in 2 U.S.C. § 1407(d), which we have said\n“is essentially identical to the APA standard.” Id. at 755\nn.4.\n For the reasons set forth below, we deny the Police’s\npetition and grant the OOC’s application.\n\fUNITED STATES CAPITOL POLICE v. OOC 7\n\n\n\n THE ISSUES\n This case does not present any challenge to the merits\nof the arbitrator’s decision to reinstate the officer in\nquestion, nor is there any question that the CBA, to which\nthe Police is bound, required an arbitrator vested with\njurisdiction to make a final decision in the case. The only\nquestion before us is whether the Police committed an\nunfair labor practice. The Police does not contest that\nrefusal to comply with an arbitrator’s award under a CBA\nis an unfair labor practice. The Police argues here, as\nbelow, that the arbitrator had no jurisdiction over the\ncase in the first place, leaving the arbitral award a nullity\non its face, and thus refusal to comply with the award\ncannot constitute an unfair labor practice.\n The Police’s jurisdictional argument is presented in\ntwo forms. The first is that the subject of employee ter-\nmination is excluded entirely from CBAs covering legisla-\ntive branch employees. That argument is premised on the\nfact that the Act does not provide for judicial review of\nemployee termination decisions, and borrows its strength\nfrom cases decided under the Civil Service Reform Act of\n1978 (“CSRA”), Pub. L. No. 95-454, § 205, 92 Stat. 1111,\n1143. Under that statutory regime, which covers execu-\ntive branch employees, certain employees lack judicial\nreview of adverse actions taken against them by executive\nbranch agencies. In a number of post-CSRA cases, execu-\ntive branch employees lacking statutory appeal rights\nunder the CSRA sought to obtain judicial review of ad-\nverse actions taken against them in other fora. In United\nStates v. Fausto, 484 U.S. 439 (1988), and subsequent\nrelated cases, it was held that where Congress denied\ndirect judicial review in the CSRA, it would violate the\nCSRA to permit an alternative avenue of judicial review.\nBecause the Act provides no direct judicial review for\nemployee termination, and because the CBA grants\nreview of employee termination, the Police argues the\nsituation under the CBA is like that in the post-CSRA\n\f8 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\ncases, where a party denied judicial review by the CSRA\nwas denied judicial review elsewhere. The Police thus\ncontends that it is inconsistent with that CSRA body of\nlaw to allow employee termination to be covered in a CBA.\nThe Police argues that the above body of law should lead\nthis court to conclude that it would violate the Act to\npermit arbitration over employee termination. The Act on\nits face permits the subject of employee termination to be\nincluded in a CBA, but the Police argues that to give the\nAct its plain meaning will make the Act inconsistent with\nlaw.\n The Police’s second jurisdictional argument rests on\nits view that the subject of employee termination is not a\ncondition of employment, because it has been “specifically\nprovided for” by the TCA, and therefore the subject of\nemployee termination must be deemed excluded from the\nCBA.\n The Police also asserts that the unfair labor practice\ncomplaint filed by the Union was untimely, and as such\nthe hearing officer’s decision cannot stand, and that the\nBoard’s determination that the Police committed an\nunfair labor practice by its refusal to respond to the\nUnion’s information requests is erroneous.\n The OOC does not take issue in this case with the Po-\nlice’s view that lack of subject matter authority over an\nissue renders an arbitral award a nullity and hence that\nnon-compliance is not an unfair labor practice. Instead,\nthe OOC argues that the Police’s grounds for removing\nemployee termination from the CBA lack merit. The OOC\nalso argues that the Police’s challenge to the timeliness of\nthe unfair labor practice complaint lacks merit, as well as\nthe Police’s challenge to the unfair labor practice offense\nbased on failure to provide requested information.\n We address the Police’s arguments in turn below.\n\fUNITED STATES CAPITOL POLICE v. OOC 9\n\n\n\n EMPLOYEE TERMINATION AS AN IMPERMISSIBLE CBA\n SUBJECT\n As noted above, the Police fashions the broad subject\nmatter exclusion argument as based on case law devel-\noped under the CSRA. In its brief, the Police argues that\nit would be inconsistent with law to allow employee\ntermination to be decided under a CBA. That argument\nby the Police has been rejected recently by this court, and\nhence need not be addressed in great detail here.\n In Capitol Police I, the Police argued, as here, that\nemployee termination is not legal subject matter for a\nCBA, because allowing the subject in a CBA would be\ninconsistent with law. 908 F.3d at 763. Capitol Police I\ninvolved an attempt by the Police to avoid bargaining over\nthe subject of employee termination, id. at 753, whereas\nthe Police attempts here to avoid an unfair labor practice\non the ground that the subject of employee termination is\nwholly outside the reach of a CBA. While the fact setting\nof the two cases is different, the jurisdictional argument is\nthe same. The complete rejection of the Police’s CSRA-\nbased jurisdictional contention in Capitol Police I com-\nmands its rejection here.\n In Capitol Police I, this court explained in detail why\nthe subject matter exclusion argument fails. See id. at\n763–65. In short, Fausto dealt with executive branch\nemployees who sought to end run the CSRA to obtain\njudicial review when Congress had specified that those\nemployees should not have judicial review. Id. at 763.\nThe related cases in our sister circuits, mainly Depart-\nment of the Treasury, Office of Chief Counsel v. Federal\nLabor Relations Authority, 873 F.2d 1467 (D.C. Cir. 1989),\nand U.S. Department of Health & Human Services v.\nFederal Labor Relations Authority, 858 F.2d 1278 (7th\nCir. 1988), which were discussed in Capitol Police I, dealt\nwith executive branch employees who were also seeking\nto end run the CSRA’s denial of judicial review by asser-\n\f10 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\ntion of arbitration remedies and similarly held that such\nremedies would violate the CSRA. Capitol Police I, 908\nF.3d at 763–64. But those cases dealt with the CSRA,\nwhich created the Merit Systems Protection Board\n(“MSPB”), and gave certain classes of executive branch\nemployees the right to challenge their terminations by\nelection either through the MSPB hearing mechanism, or\nthrough arbitration where available under a CBA, but not\nboth. Id. at 764 (citing 5 U.S.C. § 7121(e)(1)). Under\neither avenue, the initial adjudication is reviewed in this\ncourt on appeal. The Act, on the other hand, does not\nafford some legislative branch employees a choice between\naccess to the MSPB or arbitration, and deny such choice\nto other legislative branch employees. The post-CSRA\ncase law was necessary to preserve the structure of the\nCSRA. Denying arbitration of employee termination is\nnot necessary to preserve the structure of the Act, which\nby its explicit terms allows for arbitration of employee\ntermination. Id. at 764–65.\n Capitol Police I rejected the analogy to Fausto and its\nprogeny. Id. at 763–65. Indeed, the lead circuit court\ncase relied on by the Police, as explained in Capitol Police\nI, supports the conclusion that the absence of judicial\nreview of legislative employee termination under the Act\ndoes not undermine arbitrator review of termination\ndecisions. See id. at 764 (discussing Dep’t of the Treasury,\n873 F.2d 1467). We again reject the Police’s Fausto-based\njurisdictional argument.\n THE TCA AS A BAR TO ARBITRATION OF EMPLOYEE\n TERMINATION\n The Police mounts two jurisdictional arguments based\non the TCA, which as noted above provides a form of\nratification of an employee termination decision of the\nChief of Police by the Capitol Police Board. First, the\nPolice asserts that to permit arbitration over employee\ntermination would be inconsistent with law, meaning\n\fUNITED STATES CAPITOL POLICE v. OOC 11\n\n\n\ninconsistent with the TCA because of the Capitol Police\nBoard’s ratification authority. That argument was\nsquarely rejected in Capitol Police I, and we need not\nrepeat our detailed statutory analysis of the TCA, which\nled us to conclude that the TCA does not stand in the way\nof arbitration of employee termination. Id. at 760–62.\n The Police also argues that the TCA should be inter-\npreted to specifically provide for employee termination,\neliminating the subject of employee removal from arbitra-\ntion because, if specifically provided for by law, it would\nnot be a condition of employment. OOC Regs.\n§ 2421.3(m)(3). The rationale underlying both jurisdic-\ntional arguments based on the TCA is similar. The ra-\ntionale is that the TCA gave the Capitol Police Board\nsufficient authority over employee termination both to\n“specifically provide” for employee termination and to\nmake arbitration over employee termination inconsistent\nwith the TCA.\n The Chief of Police has the authority to decide wheth-\ner an officer should be terminated. 2 U.S.C.\n§ 1907(e)(1)(A). Once the Chief of Police exercises his\ndiscretion and orders a termination, the TCA gives the\nCapitol Police Board three options. It can act specifically\nto ratify that decision, or act specifically to disapprove a\ntermination. Id. § 1907(e)(1)(B). Its third option is to\nremain silent, taking no position. Id. If the Capitol Police\nBoard elects the third option, it fails to act and the TCA\nacts for it by providing ratification of the termination\ndecision made by the Chief of Police. Id. Ratification\nprovided by the third option provides approval by the\nforce of law, not by an active decision by the Capitol Police\nBoard. In short, the TCA does not require the Capitol\nPolice Board’s actual participation in employee termina-\ntion decisions.\n The Supreme Court has interpreted the language “to\nthe extent such matters are specifically provided for by\n\f12 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nFederal statute.” In Fort Stewart Schools v. Federal\nLabor Relations Authority, 495 U.S. 641 (1990), the statu-\ntory language was construed narrowly to mean that a\nfederal statute must occupy a subject entirely in order to\nspecifically provide for a subject and thus make it not a\ncondition of employment. Id. at 645–50. In that case, the\nissue was wages and benefits for employees of two ele-\nmentary schools owned and operated by the U.S. Army.\nId. at 643. The schools refused to bargain over the issue\non the ground that wages and benefits for the overwhelm-\ning majority of Executive Branch employees are fixed by\nlaw, in accordance with the General Schedules of the Civil\nService Act, and therefore are specifically provided for by\nfederal statute. Id. at 643–50. The Supreme Court\nrejected the school’s argument, because the school’s\nemployees were among a miniscule minority of Executive\nBranch federal employees whose wages and benefits are\nexcluded from operation of the General Schedules. Id. at\n649. Because the subject of wages and benefits for all\nExecutive Branch federal employees is not completely\ngoverned by the statute cited, the Supreme Court held\nthat the subject is not specifically provided for by federal\nlaw. Id. at 645–50.\n The narrow reading of the “specifically provided for”\nlanguage in Fort Stewart has been applied in subsequent\ncases. Where a federal statute completely occupies a\nsubject, leaving entire authority over a subject within the\nstatute, the statute is considered to specifically provide\nfor the subject. Conversely, where a federal statute refers\nto a matter and provides for it but leaves some authority\nover the subject outside the reach of the statute, the\nstatute does not specifically provide for the subject. See\nDep’t of the Air Force v. Fed. Labor Relations Auth., 844\nF.3d 957, 964 (D.C. Cir. 2016); Int’l Ass’n of Machinists &\nAerospace Workers Franklin Lodge No. 2135 and U.S.\nDep’t of the Treasury Bureau of Engraving & Printing, 50\nF.L.R.A. 677, 681–84 (1995).\n\fUNITED STATES CAPITOL POLICE v. OOC 13\n\n\n\n Because the TCA gives the Capitol Police Board only a\npiece of the subject matter of employee termination, and\neven that piece—its stated ratification of the actual\ntermination decision made by the Chief of Police—can be\navoided by remaining silent in the face of termination\nordered by the Chief of Police, it hardly can be said that\nthe TCA meets the test of Fort Stewart.\n We also note that we previously observed in Capitol\nPolice I that the TCA falls short of the Fort Stewart test.\nThat observation was made in connection with the “specif-\nically provided for” jurisdictional argument in the Police’s\nopening brief, after the Police at oral argument aban-\ndoned the specifically provided for argument under the\nTCA in favor of its alternative “inconsistent with law”\nargument under the TCA. Capitol Police I, 908 F.3d at\n760 n.10. Moreover, it is also noteworthy that the Police\nin its reply brief in this case did not respond to the OOC’s\ncontention that the TCA is not a “specifically provided for”\nstatute under Fort Stewart.\n TIMELINESS OF THE UNFAIR LABOR PRACTICE COMPLAINT\n An unfair labor practice charge must be filed within\n180 days of the occurrence of the alleged unfair labor\npractice. See 2 U.S.C. § 1351(c)(2) (incorporating 5 U.S.C.\n§ 7118(a)(4)(A)). The Union charged that the Police\ncommitted an unfair labor practice when it failed to\nimplement the May 13, 2014 arbitrator’s award that had\nbeen supplemented and clarified by the arbitrator’s June\n17, 2015 final order. The Union’s charge, filed July 28,\n2015, was challenged by the Police as untimely.\n The limitations period for filing an unfair labor prac-\ntice charge is triggered in one of two ways: “(1) when a\nparty expressly notifies a party that it will not comply\nwith the obligations required by an award, or (2) when an\naward establishes a deadline for implementing obligations\nrequired by the award and the deadline passes without\nthe party taking any action to implement the award.”\n\f14 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\nU.S. Dep’t of the Treasury Internal Revenue Serv. Wash.\nD.C. and Nat’l Treasury Emps. Union, 61 F.L.R.A. 146,\n150 (2005); accord Nat’l Treasury Emps. Union v. Fed.\nLabor Relations Auth. (“NTEU”), 392 F.3d 498, 500–01\n(D.C. Cir. 2004).\n The timeline concerning the arbitrator’s award in this\ncase starts with the date of the initial arbitration award:\n 1. May 13, 2014 – arbitrator directs the officer to\n be returned to service, without setting a dead-\n line for compliance.\n 2. May 22, 2014 – Union requests additional in-\n formation from the Police necessary to imple-\n ment the arbitration award.\n 3. June 12, 2014 – Police files exceptions to the\n arbitration award with the Board, and arbitra-\n tor stays implementation of his award pending\n Board review.\n 4. December 12, 2014 – Board denies the Police’s\n exceptions.\n 5. December 16, 2014 – arbitrator removes the\n stay on implementation of the May 13, 2014\n award, and directs the Police to provide the\n Union with its May 22, 2014 information re-\n quest, without setting any deadline for compli-\n ance.\n 6. December 19, 2014 – Police responds to the ar-\n bitrator’s December 16, 2014 communication,\n acknowledging its receipt and saying “[w]e will\n continue to work with the Union’s counsel on\n issues related to the award . . . .” J.A. 135.\n 7. January 15, 2015 – Union sends email mes-\n sage to the Police, asking for the status on its\n information request and when the officer\n should report for duty.\n\fUNITED STATES CAPITOL POLICE v. OOC 15\n\n\n\n 8. January 26, 2015 – arbitrator writes the Police\n and the Union, inquiring about the status of\n the officer’s reinstatement, and if reinstate-\n ment had not occurred, asking to be informed\n when the parties expected to fully enforce the\n arbitration award, without setting any dead-\n line for compliance.\n 9. January 26, 2015 – Union notifies the arbitra-\n tor that the Police has not reinstated the of-\n ficer and has ignored the Union’s information\n request.\n 10. January 26, 2015 – counsel for the Police re-\n sponds to the January 15, 2015 inquiry from\n the Union, saying “I am waiting to hear from\n my client as to how it wishes to proceed, and\n will notify you once I have a response. I antic-\n ipate knowing something in the next couple of\n weeks.” J.A. 498.\n 11. February 11, 2015 – Union emails the arbitra-\n tor complaining that it has heard nothing from\n the Police about the officer’s reinstatement or\n its information request, and requesting the ar-\n bitrator to order the Police to comply with the\n reinstatement and the information request.\n 12. February 18, 2015 – arbitrator communicates\n to both parties, directing the Police to comply\n in full with respect to reinstatement and\n providing the Union with the requested infor-\n mation, setting a 30-day deadline for compli-\n ance.\n 13. March 13, 2015 – Police notifies the Union that\n it will not comply with the arbitration award,\n citing jurisdictional grounds.\n\f16 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\n 14. March 23, 2015 – arbitrator notifies the parties\n of the procedures he will use to determine\n compensation for the officer.\n 15. June 17, 2015 – arbitrator issues a final order\n clarifying and amending the May 13, 2014\n award, calculating compensation and ordering\n the Police to reinstate the officer immediately.\n 16. July 28, 2015 – Union files its unfair labor\n practice charge.\n The Police argues that the 180-day time period should\nrun starting sometime between December 15, 2014, the\nfirst business day after the Board denied the Police’s\nexceptions to the arbitration award, and January 26,\n2015, when it allegedly was clear to the Union that the\nPolice would not meet its obligations. The Police contends\nthat the time for filing should begin to run when the\nUnion knew or should have known that the Police would\nnot comply. Here, the Police tries to impose what is\nknown as the discovery rule as the test for when the filing\ntime should be triggered. But the discovery rule has no\nplace when measuring the time for filing an unfair labor\npractice complaint, having been flatly rejected in NTEU\nin favor of the standard set forth above. 392 F.3d at 501.\nAnd even if the discovery rule had any weight in this case,\nthe Police could hardly claim that the Union knew or\nshould have known that the Police would not comply\nduring a time when the Police told the Union it did not\nknow whether its client would comply. The Police’s\nposition on the test for measuring time wholly lacks\nmerit.\n Under the correct standard, the question is whether\nmore than 180 days passed after the Police gave actual\nnotice that it would not comply, or after the deadline set\nby the arbitrator for compliance.\n\fUNITED STATES CAPITOL POLICE v. OOC 17\n\n\n\n The record demonstrates that the deadline for compli-\nance set by the arbitrator on February 18, 2015, was\nMarch 20, 2015. 2 And the date on which the Police an-\nnounced it would not comply was March 13, 2015. The\nunfair labor practice complaint was filed within 180 days\nof both March 13 and 20, and therefore was timely filed.\n FAILURE TO PROVIDE INFORMATION AS AN UNFAIR\n LABOR PRACTICE\n The Police argued below that failure to provide the in-\nformation requested by the Union as necessary for it to\nparticipate in implementation of the arbitral award is not\nan unfair labor practice. Its argument was based on its\njurisdictional challenges to arbitration over employee\nterminations, and on the alleged failure of the arbitrator\nto comply with CBA provisions covering requests for\ninformation. The hearing officer rejected the challenge,\nstating that the CBA provided sufficient authority for the\narbitrator to enforce information requests.\n The Board sustained the hearing officer’s determina-\ntion that failure to provide the requested documents\nconstituted an unfair labor practice. In doing so, the\nBoard rejected the primary jurisdictional challenge (as did\nCapitol Police I and as do we), and affirmed the hearing\nofficer’s findings that the arbitrator exercised proper\nauthority under the CBA in pressing the Police to comply\nwith the Union’s information requests.\n\n\n\n\n 2 Although the Board implied that the 30-day dead-\nline concluded on March 17, 2015, we note that 30 days\nfrom the date of the arbitrator’s decision is March 20,\n2015. See J.A. 6 (“[T]he Arbitrator ordered the [Police] to\ncomply with his Award within 30 days, i.e., by March 17,\n2015.”); J.A. 507 (arbitrator’s decision dated February 18,\n2015, setting 30-day deadline).\n\f18 UNITED STATES CAPITOL POLICE v. OOC\n\n\n\n\n The Police repeats here its previous challenge to the\nBoard’s decision sustaining the unfair labor practice\ncharge for failure to comply with the Union’s information\nrequests. Like the Board, we conclude that the Police’s\nchallenge lacks merit.\n CONCLUSION\n For the reasons set forth above, we hold that the Po-\nlice’s petition for review lacks merit, and must be denied.\nAs the Police’s challenge to the OOC’s application seeking\nenforcement of the Board’s decision and order depends on\nits jurisdictional challenge to the Board’s final decision,\nits opposition to the OOC’s application fails. We therefore\ngrant the OOC’s application for enforcement of the\nBoard’s September 25, 2017 decision and order.\n DENIED AS TO 2018-1201 AND GRANTED AS TO\n 2018-1395\n COSTS\n No costs.\n[END_CASE]",
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4,585,389 | Alfred PROCOPIO, Jr., Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee | Procopio v. Wilkie | 2019-01-29 | 2017-1821 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, and STOLL, Circuit Judges.", "parties": "", "opinions": [{"author": "MOORE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ALFRED PROCOPIO, JR.,\n Claimant-Appellant\n\n v.\n\n ROBERT WILKIE, SECRETARY OF VETERANS\n AFFAIRS,\n Respondent-Appellee\n ______________________\n\n 2017-1821\n ______________________\n\n Appeal from the United States Court of Appeals for\nVeterans Claims in No. 15-4082, Judge Coral Wong\nPietsch.\n ______________________\n\n Decided: January 29, 2019\n ______________________\n\n MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe\nLLP, Washington, DC, argued for claimant-appellant.\nAlso represented by THOMAS MARK BONDY, ROBERT\nMANHAS; MATTHEW R. SHAHABIAN, New York, NY; JOHN\nB. WELLS, Law Office of John B. Wells, Slidell, LA.\n\n ERIC PETER BRUSKIN, Commercial Litigation Branch,\nCivil Division, United States Department of Justice,\nWashington, DC, argued for respondent-appellee. Also\nrepresented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN,\nJR., MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, BRANDON\n\n2 PROCOPIO v. WILKIE\n\n\n\n\nA. JONAS, Office of General Counsel, United States De-\npartment of Veterans Affairs, Washington, DC.\n\n CATHERINE EMILY STETSON, Hogan Lovells US LLP,\nWashington, DC, for amici curiae National Organization\nof Veterans' Advocates, Inc., Paralyzed Veterans of Amer-\nica, Military Officers Association of America, AMVETS,\nVeterans and Military Law Section, Federal Bar Associa-\ntion. Also represented by WILLIAM DAVID MAXWELL.\nAmicus curiae National Organization of Veterans' Advo-\ncates, Inc. also represented by CHRIS ATTIG, Attig Steel,\nPLLC, Little Rock, AR.\n\n KENNETH M. CARPENTER, Law Offices of Carpenter\nChartered, Topeka, KS, for amicus curiae Joseph A.\nTaina.\n\n GLENN R. BERGMANN, Bergmann Moore, LLC, Bethes-\nda, MD, for amicus curiae The American Legion. Also\nrepresented by JAMES DANIEL RIDGWAY.\n\n ANGELA K. DRAKE, The Veterans Clinic at The Uni-\nversity of Missouri School of Law, Columbia, MO, for\namicus curiae National Law School Veterans Clinic\nConsortium.\n\n DORIS HINES, Finnegan, Henderson, Farabow, Garrett\n& Dunner, LLP, Washington, DC, for amicus curiae\nDisabled American Veterans. Also represented by\nCHARLES COLLINS-CHASE, SEAN DAMON, RONALD LEE\nSMITH.\n\n STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP\n(US), San Diego, CA, for amici curiae Blue Water Navy\nVietnam Veterans Association, Association of the United\nStates Navy, Fleet Reserve Association. Also represented\nby JACOB ANDERSON, ERIN GIBSON.\n\nPROCOPIO v. WILKIE 3\n\n\n\n STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Wash-\nington, DC, for amici curiae National Veterans Legal\nServices Program, Veterans of Foreign Wars of the United\nStates. Amicus curiae National Veterans Legal Services\nProgram also represented by BARTON F. STICHMAN, Na-\ntional Veterans Legal Services Program, Washington, DC.\n ______________________\n\n Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,\nMOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, and\n STOLL, Circuit Judges.\n Opinion for the court filed by Circuit Judge MOORE, in\n which Chief Judge PROST and Circuit Judges NEWMAN,\n O’MALLEY, REYNA, WALLACH, TARANTO, and STOLL join.\n Concurring opinion filed by Circuit Judge LOURIE.\n Concurring opinion filed by Circuit Judge O’MALLEY.\nDissenting opinion filed by Circuit Judge CHEN, in which\n Circuit Judge DYK joins.\nMOORE, Circuit Judge.\n Alfred Procopio, Jr., appeals a decision of the Court of\nAppeals for Veterans Claims denying service connection\nfor prostate cancer and diabetes mellitus as a result of\nexposure to an herbicide agent, Agent Orange, during his\nVietnam War-era service in the United States Navy.\nBecause we hold that the unambiguous language of 38\nU.S.C. § 1116 entitles Mr. Procopio to a presumption of\nservice connection for his prostate cancer and diabetes\nmellitus, we reverse.\n BACKGROUND\n In 1991, Congress passed the Agent Orange Act, codi-\nfied at 38 U.S.C. § 1116, granting a presumption of ser-\nvice connection for certain diseases to veterans who\n“served in the Republic of Vietnam”:\n\n4 PROCOPIO v. WILKIE\n\n\n\n\n [A] disease specified in paragraph (2) of this\n subsection becoming manifest as specified in that\n paragraph in a veteran who, during active\n military, naval, or air service, served in the\n Republic of Vietnam during the period beginning\n on January 9, 1962, and ending on May 7, 1975;\n and [B] each additional disease (if any) that (i) the\n Secretary determines in regulations prescribed\n under this section warrants a presumption of\n service-connection by reason of having positive\n association with exposure to an herbicide agent,\n and (ii) becomes manifest within the period (if\n any) prescribed in such regulations in a veteran\n who, during active military, naval, or air service,\n served in the Republic of Vietnam during the\n period beginning on January 9, 1962, and ending\n on May 7, 1975, and while so serving was exposed\n to that herbicide agent, shall be considered to\n have been incurred in or aggravated by such\n service, notwithstanding that there is no record of\n evidence of such disease during the period of such\n service.\n38 U.S.C. § 1116(a) (emphasis added). Under § 1116(f),\nsuch a veteran “shall be presumed to have been exposed\nduring such service to [the] herbicide agent . . . unless\nthere is affirmative evidence to establish that the veteran\nwas not exposed to any such agent during that service.”\n In 1993, the Department of Veterans Affairs issued\nregulations pursuant to § 1116 that stated “‘Service in the\nRepublic of Vietnam’ includes service in the waters off-\nshore and service in other locations if the conditions of\nservice involved duty or visitation in the Republic of\nVietnam.” 38 C.F.R. § 3.307(a)(6) (1993) (“Regula-\ntion 307”). In 1997 in a General Counsel opinion about a\ndifferent regulation, the government interpreted Regula-\ntion 307 as limiting service “in the Republic of Vietnam”\n\nPROCOPIO v. WILKIE 5\n\n\n\nto service in waters offshore the landmass of the Republic\nof Vietnam only if the service involved duty or visitation\non the landmass, including the inland waterways of the\nRepublic of Vietnam, (“foot-on-land” requirement). Gen.\nCounsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63,603,\n63,604 (Dec. 1, 1997).\n A panel of this court considered the government’s in-\nterpretation of § 1116 in Haas v. Peake, 525 F.3d 1168\n(Fed. Cir. 2008). Mr. Haas had served in waters offshore\nthe landmass of the Republic of Vietnam but was denied\n§ 1116’s presumption of service connection because he\ncould not meet the government’s foot-on-land require-\nment. Id. at 1173. Accordingly, we were asked to decide\nwhether “serv[ice] in the Republic of Vietnam” in § 1116\nrequired presence on the landmass or inland waterways of\nthe Republic of Vietnam. Id. at 1172.\n We applied the two-step framework of Chevron\nU.S.A., Inc. v. Natural Resources Defense Council, Inc.,\n467 U.S. 837, 842–43 (1984), to § 1116 and Regula-\ntion 307. At Chevron step one, the Haas court held that\n§ 1116 was ambiguous as applied to veterans who, like\nMr. Haas, served in the waters offshore the landmass of\nthe Republic of Vietnam but did not meet the foot-on-land\nrequirement. 525 F.3d at 1184. At Chevron step two, the\nHaas court held Regulation 307 was “a reasonable inter-\npretation of the statute” but itself ambiguous. Id. at\n1186. It then “[a]ppl[ied] the substantial deference that is\ndue to an agency’s interpretation of its own regulations”\nunder Auer v. Robbins, 519 U.S. 452, 461–63 (1997), to\nuphold the government’s interpretation of Regulation 307,\ni.e., the foot-on-land requirement. Id. at 1195. See also\nHaas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008).\n Mr. Procopio served aboard the U.S.S. Intrepid from\nNovember 1964 to July 1967. In July 1966, the Intrepid\n\n6 PROCOPIO v. WILKIE\n\n\n\n\nwas deployed in the waters offshore the landmass of the\nRepublic of Vietnam, including its territorial sea. 1\nMr. Procopio sought entitlement to service connection for\ndiabetes mellitus in October 2006 and for prostate cancer\nin October 2007 but was denied service connection for\nboth in April 2009. Diabetes mellitus is listed in the\nstatute under paragraph (2) of § 1116(a), and prostate\ncancer is listed in the pertinent regulation, 38 C.F.R.\n§ 3.309(e). The Board of Veterans’ Appeals likewise\ndenied him service connection in March 2011 and again in\nJuly 2015, finding “[t]he competent and credible evidence\nof record is against a finding that the Veteran was pre-\nsent on the landmass or the inland waters of Vietnam\nduring service and, therefore, he is not presumed to have\nbeen exposed to herbicides, including Agent Orange,”\nunder § 1116. The Veterans Court affirmed, determining\nit was bound by our decision in Haas. Mr. Procopio timely\nappealed.\n A panel of this court heard oral argument on May 4,\n2018, and on May 21, 2018, the parties were directed to\nfile supplemental briefs on “the impact of the\npro-claimant canon on step one of the Chevron analysis in\nthis case, assuming that Haas v. Peake did not consider\nits impact.” On August 16, 2018, the court sua sponte\nordered the case be heard en banc. We asked the parties\nto address two issues:\n Does the phrase “served in the Republic of\n Vietnam” in . . . § 1116 unambiguously include\n service in offshore waters within the legally\n recognized territorial limits of the Republic of\n Vietnam, regardless of whether such service\n\n\n\n 1 The Board of Veterans’ Appeals found, and the\nparties do not dispute, that Mr. Procopio served in the\nRepublic of Vietnam’s territorial sea. J.A. 32, 49-52.\n\nPROCOPIO v. WILKIE 7\n\n\n\n included presence on or within the landmass of\n the Republic of Vietnam?\n What role, if any, does the pro-claimant canon\n play in this analysis?\n In addition to the parties’ briefs, we received seven\namicus briefs. The en banc court heard oral argument on\nDecember 7, 2018.\n DISCUSSION\n Section 1116 extends the presumption of service con-\nnection to veterans who “served in the Republic of Vi-\netnam” during a specified period if they came down with\ncertain diseases. At issue is whether Mr. Procopio, who\nserved in the territorial sea of the “Republic of Vietnam”\nduring the specified period, “served in the Republic of\nVietnam” under § 1116.\n Chevron sets forth a two-step framework for inter-\npreting a statute, like § 1116, that is administered by an\nagency. 467 U.S. at 842. Step one asks “whether Con-\ngress has directly spoken to the precise question at issue.”\nId. “If the intent of Congress is clear, that is the end of\nthe matter,” and we “must give effect to the unambiguous-\nly expressed intent of Congress.” Id. at 842–43. If, on the\nother hand, “the statute is silent or ambiguous with\nrespect to the specific issue,” we proceed to Chevron step\ntwo, at which we ask “whether the agency’s answer is\nbased on a permissible construction of the statute.” Id. at\n843.\n Here, we determine at Chevron step one that Con-\ngress has spoken directly to the question of whether\nMr. Procopio, who served in the territorial sea of the\n“Republic of Vietnam,” “served in the Republic of Vi-\netnam.” He did. Congress chose to use the formal name\nof the country and invoke a notion of territorial bounda-\nries by stating that “service in the Republic of Vietnam” is\nincluded. The intent of Congress is clear from its use of\n\n8 PROCOPIO v. WILKIE\n\n\n\n\nthe term “in the Republic of Vietnam,” which all available\ninternational law unambiguously confirms includes its\nterritorial sea. Because we must “give effect to the un-\nambiguously expressed intent of Congress,” we do not\nreach Chevron step two.\n In 1954, the nation then known as Vietnam was parti-\ntioned by a “provisional military demarcation line” into\ntwo regions colloquially known as “North Vietnam” and\n“South Vietnam.” Geneva Agreements on the Cessation\nof Hostilities in Vietnam, art. 1, July 20, 1954, 935\nU.N.T.S. 149 (“Geneva Accords”). In 1955, South Vietnam\nwas formally named, by proclamation of its president, the\n“Republic of Vietnam.” Provisional Constitutional Act\nEstablishing the Republic of Viet-Nam, Oct. 26, 1955,\nreprinted in A.W. Cameron (ed.), Viet-Nam Crisis: A\nDocumentary History, Volume I: 1940-1956 (1971).\n International law uniformly confirms that the “Re-\npublic of Vietnam,” like all sovereign nations, included its\nterritorial sea. This was true in 1955 when the “Republic\nof Vietnam” was created. Geneva Accords at art. 4 (ex-\ntending the provisional military demarcation line into the\n“territorial waters”). And this was true in 1991 when\nCongress adopted the Agent Orange Act. In 1958, the\nUnited States entered into the Convention on the Territo-\nrial Sea and the Contiguous Zone (“1958 Convention”),\nagreeing that “[t]he sovereignty of a State extends, be-\nyond its land territory and its internal waters, to a belt of\nsea adjacent to its coast, described as the territorial sea.”\n1958 Convention, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No.\n5639 (Apr. 29, 1958); see also United States v. California,\n381 U.S. 139, 165 (1965) (stating the 1958 Convention\nprovides “the best and most workable definitions availa-\nble” for defining coastal boundaries); Legal Issues Raised\nby the Proposed Presidential Proclamation to Extend the\nTerritorial Sea, 12 O.L.C. 238, 247 (1988) (“[T]he modern\nview is that the territorial sea is part of a nation and that\na nation asserts full sovereignty rights over its territorial\n\nPROCOPIO v. WILKIE 9\n\n\n\nsea . . . .”). In 1982, the United Nations Convention on\nthe Law of the Sea (“UNCLOS”) echoed the 1958 Conven-\ntion, stating “[t]he sovereignty of a coastal State extends\n. . . to an adjacent belt of sea, described as the territorial\nsea,” having a breadth “not exceeding 12 nautical miles.”\nPart II, arts. 2, 3, 1833 U.N.T.S. 397, 400 (Dec. 10, 1982).\nAnd the Restatement of Foreign Relations Law in effect\nwhen the Agent Orange Act was passed provided that “[a]\nstate has complete sovereignty over the territorial sea,\nanalogous to that which it possesses over its land territo-\nry, internal waters, and archipelagic waters,” meaning\n“[t]he rights and duties of a state and its jurisdiction are\nthe same in the territorial sea as in its land territory.”\nRestatement (Third) of Foreign Relations Law §§ 511,\ncmt. b, 512, cmt. a (1987); see also id. (“[I]nternational law\ntreats the territorial sea like land territory . . . .”); Presi-\ndential Proclamation 5928, 103 Stat. 2981 (1988) (“Inter-\nnational law recognizes that coastal nations may exercise\nsovereignty and jurisdiction over their territorial seas.”). 2\n\n\n\n 2 The dissent criticizes that these sources of inter-\nnational law merely “define the territorial waters over\nwhich a sovereign nation has dominion and control” but\n“do not purport to define territorial waters as part of the\ndefinition of the country itself.” Dissent at 5. But the\narea over which a sovereign nation has dominion and\ncontrol is a definition of the country itself, and the dissent\npoints to no sources supporting any other definition of the\n“Republic of Vietnam.” The dictionaries and maps the\ndissent cites define other terms (“Vietnam,” “United\nStates,” “Socialist Republic of Vietnam”). Dissent at 6, 8\nnn.2-3. When trying to discern what Congress meant by\n“in the Republic of Vietnam,” we think the contemporane-\nous definition provided by international law is a better\nsource than the definitions of other countries provided by\nthese generalist dictionaries and maps.\n\n10 PROCOPIO v. WILKIE\n\n\n\n\n Thus, all available international law, including but\nnot limited to the congressionally ratified\n1958 Convention, confirms that, when the Agent Orange\nAct was passed in 1991, the “Republic of Vietnam” includ-\ned both its landmass and its 12 nautical mile territorial\nsea. 3 The government has pointed to no law to the con-\ntrary. This uniform international law was the backdrop\nagainst which Congress adopted the Agent Orange Act.\nBy using the formal term “Republic of Vietnam,” Congress\nunambiguously referred, consistent with that backdrop, to\nboth its landmass and its territorial sea. 4 We also note\nthat the statute expressly includes “active military, naval,\nor air service . . . in the Republic of Vietnam,”\n§ 1116(a)(1), reinforcing our conclusion that Congress was\nexpressly extending the presumption to naval personnel\nwho served in the territorial sea. We conclude at Chevron\nstep one that the intent of Congress is clear from the text\nof § 1116: Mr. Procopio, who served in the territorial sea\nof the “Republic of Vietnam,” is entitled to § 1116’s pre-\nsumption.\n We find no merit in the government’s arguments to\nthe contrary. Its primary argument is that it injected\nambiguity into the term “Republic of Vietnam” prior to\nthe Agent Orange Act by promulgating two regulations,\n38 C.F.R. § 3.311a(a)(1) (“Regulation 311”) and § 3.313(a)\n\n\n\n 3 There is no dispute that, when the Agent Orange\nAct was passed in 1991, a nation’s territorial sea had a\nbreadth “not exceeding 12 nautical miles.” UNCLOS,\n1833 U.N.T.S. at 400.\n 4 We do not, as the dissent contends, “create[] a new\ncanon of statutory construction that any use of a formal\ncountry name necessarily includes the nation’s territorial\nseas.” Dissent at 6. This case requires us to determine\nonly what Congress meant when it used the phrase “in\nthe Republic of Vietnam” in 1991.\n\nPROCOPIO v. WILKIE 11\n\n\n\n(“Regulation 313”). According to the government, Regula-\ntion 311 imposed the foot-on-land requirement, but Regu-\nlation 313 did not. The government contends that § 1116\ncodified both regulations and that, accordingly, it is\nambiguous whether Congress intended to impose the foot-\non-land requirement. We are not persuaded.\n Regulation 311 created a presumption of service con-\nnection for chloracne and later soft-tissue sarcomas for\nveterans who served in “the Republic of Vietnam.” It\nstated:\n “Service in the Republic of Vietnam” includes\n service in the waters offshore and service in other\n locations, if the conditions of service involved duty\n or visitation in the Republic of Vietnam.\nRegulation 313 created a presumption of service connec-\ntion for Non-Hodgkin’s lymphoma for veterans who served\nin “Vietnam.” It stated:\n “Service in Vietnam” includes service in the\n waters offshore, or service in other locations if the\n conditions of service involved duty or visitation in\n Vietnam.\nThe government asks us to infer that Regulation 311\nimposed the foot-on-land requirement, and that Regula-\ntion 313 did not. This distinction is essential to its argu-\nment that § 1116, which codified both, is ambiguous. We\ndo not agree. We do not read Regulation 311, Regula-\ntion 313, or even later-adopted Regulation 307 as articu-\nlating the government’s current foot-on-land requirement.\nAnd there is no indication anyone, including the govern-\nment, did before § 1116 was adopted.\n Regulation 311 grants a presumption of service con-\nnection for “service in the waters offshore and service in\nother locations, if the conditions of service involved duty\nor visitation in the Republic of Vietnam.” Regulation 313\ngrants the presumption for “service in the waters offshore,\n\n12 PROCOPIO v. WILKIE\n\n\n\n\nor service in other locations if the conditions of service\ninvolved duty or visitation in Vietnam.” We do not read\nthese minor grammatical differences to compel the dis-\ntinction the government urges. At best, the addition of a\ncomma in Regulation 311 permits the clause “if the condi-\ntions of service involved duty or visitation in the Republic\nof Vietnam” to modify both “service in the waters off-\nshore” and “service in other locations.” But even if Regu-\nlation 311 is so read, it still does not impose the foot-on-\nland requirement: it covers everyone whose service in-\ncluded duty or visitation “in the Republic of Vietnam,”\nwhich, under background law, embraces the territorial\nsea.\n That is the straightforward meaning of the regulation\neven after taking full account of the comma. As the\ngovernment concedes, the “waters offshore” are broader\nthan the territorial sea. See Oral Argument at 55:08–\n55:19 (government’s counsel acknowledging offshore\nwaters “can also include beyond the territorial seas”); id.\nat 55:40–56:10 (government’s counsel confirming offshore\nwaters extend beyond the territorial sea); cf. id. at 2:00–\n2:16 (Mr. Procopio’s counsel stating “[t]he offshore water\nis broader than the territorial sea . . . and it’s an im-\nportant difference because a nation is sovereign only in its\nterritorial sea.”). Regulation 311’s requirement of “duty\nor visitation in the Republic of Vietnam” brings within\ncoverage only a subset of all those who served “offshore,”\nnamely, those whose service included presence on land, in\nthe inland waterways, or in the territorial sea, consistent\nwith international law. That is, veterans who served in\nthe waters offshore or in other locations would be eligible\nfor the presumption if during such service they visited the\nRepublic of Vietnam (which is defined as the landmass\nand territorial sea by international law).\n Given the undisputed distinction between offshore\nwaters and territorial seas, we see no basis for incorporat-\ning a foot-on-land requirement into Regulation 311. The\n\nPROCOPIO v. WILKIE 13\n\n\n\nonly discussion of this provision appears in the proposed\nrulemaking where the government explains that,\n“[b]ecause some military personnel stationed elsewhere\nmay have been present in the Republic of Vietnam, ‘ser-\nvice in the Republic of Vietnam’ will encompass services\nelsewhere if the person concerned actually was in the\nRepublic of Vietnam, however briefly.” 50 Fed. Reg. at\n15,848, 15,849 (Apr. 22, 1985). We see no evidence that\nthe government understood Regulation 311 to include the\nfoot-on-land requirement until after the Agent Orange Act\nwas passed. The government first articulated this posi-\ntion in 1997, six years after the Act. Gen. Counsel Prec.\n27-97 (July 23, 1997). We cannot read into § 1116 an\nambiguity that relies on a distinction made only after\n§ 1116 was adopted.\n It is undisputed that Regulation 313 covering Non-\nHodgkin’s lymphoma does not include the foot-on-land\nrequirement, meaning the presumption of service connec-\ntion for Non-Hodgkin’s lymphoma would have applied to\nveterans who served on the landmass or in the territorial\nsea. The government asserts that Regulation 311 pre-\nsumed service connection for diseases—chloracne and\nsoft-tissue sarcomas—linked to herbicide exposure, while\nRegulation 313 presumed service connection for a dis-\nease—Non-Hodgkin’s lymphoma—not linked to herbicide\nexposure. But that asserted distinction does not indicate\nambiguity in § 1116. Indeed, when Congress enacted\n§ 1116 it expressly extended the presumption to Non-\nHodgkin’s lymphoma, as well as chloracne and soft-tissue\nsarcomas. And the government argues that § 1116 in-\ntended to codify Regulation 311 and Regulation 313. No\nfair reading of § 1116 can exclude the very veterans\nsuffering from Non-Hodgkin’s lymphoma that were enti-\ntled to Regulation 313’s presumption, yet the govern-\nment’s (and the dissent’s) reading does just that:\nAccording to the government, a veteran with Non-\nHodgkin’s lymphoma who served in the Republic of Vi-\n\n14 PROCOPIO v. WILKIE\n\n\n\n\netnam’s territorial sea would have been entitled to service\nconnection under Regulation 313, but this same veteran\nwould not be entitled to service connection under § 1116.\nThis cannot be right. We decline to read § 1116, as the\ndissent urges, to both codify Regulation 313 and erode\nthat regulation’s coverage. We see no basis to conclude\nthat Congress chose to reduce the scope of service connec-\ntion for Non-Hodgkin’s lymphoma without explanation.\n In short, we do not understand Regulation 311 or\nRegulation 313 to articulate a foot-on-land requirement.\nWe find no merit to the government’s argument that\n§ 1116 is ambiguous because “Congress’s codification of\nthe existing regulatory presumptions . . . tells, at best, a\nconflicting story.” Appellee’s Br. 39–40. In 1991, Con-\ngress legislated against the backdrop of international law\nthat had defined the “Republic of Vietnam” as including\nits territorial sea for decades. The government’s foot-on-\nland requirement, first articulated in 1997, does not\nprovide a basis to find ambiguity in the language Con-\ngress chose.\n The government also argues the “Republic of Vi-\netnam” in § 1116 does not include its territorial sea be-\ncause when Congress intends to bring a territorial sea\nwithin the ambit of a statute, it says so expressly. 5 But\nthe examples the government points to address not a\nnation’s territorial sea, but only “waters adjacent.” 10\nU.S.C. §§ 3756, 6258, 8756 (extending the Korea Defense\nService Medal to those who “served in the Republic of\n\n\n 5 The government conceded, though, at oral argu-\nment that if Congress were to pass a statute forbidding\nmilitary action within a nation, that statute would be\nviolated if the President sent forces into the nation’s 12-\nmile territorial sea, as that would “impact the sovereign\nboundary of [the nation].” See Oral Argument at 27:37-\n28:13.\n\nPROCOPIO v. WILKIE 15\n\n\n\nKorea or the waters adjacent thereto”); Veterans’ Rehabil-\nitation and Education Amendments of 1980, Pub. L.\nNo. 96-466, § 513(b) (providing for the publishing of labor\nstatistics on “veterans . . . who served . . . in naval mis-\nsions in the waters adjacent to Vietnam”); 38 U.S.C.\n§ 101(30) (defining the term “Mexican border period” in\nthe case of “a veteran who . . . served in Mexico, on the\nborders thereof, or in the waters adjacent thereto”).\nWhile the dissent calls this distinction “speculative,”\nDissent at 10, both parties conceded at oral argument\nthat the “waters adjacent” to a nation are distinct from,\nand extend beyond, its territorial sea. See Oral Argument\nat 26:50-27:18 (Mr. Procopio); id. at 55:00–55:15 (govern-\nment). It is precisely because “waters adjacent” go beyond\na nation’s landmass and territorial sea that Congress\nneeded to specify “waters adjacent” in these statutes. See,\ne.g., Keene Corp. v. United States, 508 U.S. 200, 208\n(1993) (“[I]t is generally presumed that Congress acts\nintentionally and purposely in the disparate inclusion or\nexclusion” of “particular language”); W. Va. Univ. Hosps.,\nInc. v. Casey, 499 U.S. 83, 88-92 (1991) (comparing dis-\ntinct usage of “attorney’s fees” and “expert fees” among\nstatutes). These statutes cast no doubt on our conclusion\nthat, by using the formal term “Republic of Vietnam,”\nCongress unambiguously referred, consistent with uni-\nform international law, to both its landmass and its 12\nnautical mile territorial sea.\n The other statutes the government cites likewise cast\nno doubt on this conclusion. The government has failed to\ncite any instance in which the unmodified use of a formal\nsovereign name has been construed to not include its\nterritorial sea. Instead, the government would have us\ninfer that because several statutes refer to both the\n“United States” and its “territorial seas” or “territorial\nwaters,” the term “United States” cannot be generally\nunderstood to include territorial sea. We see no basis for\ndrawing that inference. As the Supreme Court has ob-\n\n16 PROCOPIO v. WILKIE\n\n\n\n\nserved, there are “many examples of Congress legislating\nin that hyper-vigilant way, to ‘remov[e] any doubt’ as to\nthings not particularly doubtful in the first instance.”\nCyan, Inc. v. Beaver Cty. Employees Ret. Fund, 138 S. Ct.\n1061, 1074 (2018). 6\n\n\n\n 6 In several cases, it is clear Congress’ express ref-\nerence to territorial sea was to remove any doubt as to a\nprovision’s meaning. For instance, in 16 U.S.C.\n§ 2402(8)’s definition of “import,” the statement that “any\nplace subject to the jurisdiction of the United States”\n“include[s] the 12-mile territorial sea of the United\nStates,” clearly reflects Congress’ express concern that\n“import” as defined in § 2402(8) could be misread to have\nthe same meaning as it has under the customs laws of the\nUnited States. For customs purposes a good may not be\nimported until it arrives at a port, see, e.g., 19 C.F.R. §\n101.1, and the “customs territory of the United States” is\nlimited to the States, the District of Columbia, and Puerto\nRico, and does not include other sovereign territory of the\nUnited States, see Harmonized Tariff Schedule of the\nUnited States, General Note 2. Similarly, the reference to\n“United States waters” in 8 U.S.C. § 1158(a)(1) serves a\nclarifying purpose in light of caselaw holding “physical\npresence” is a term of art in immigration law requiring an\nalien to have landed on shore, see Zhang v. Slattery, 55\nF.3d 732, 754 (2d Cir. 1995). Nothing in these provisions,\n18 U.S.C. § 2280(b)(1)(A)(ii), or 33 U.S.C. § 1203, suggests\nCongress did not understand the term “United States” to\ngenerally include its territorial sea.\n It is also unsurprising that Congress has found it ex-\npedient to define phrases including the term “United\nStates” for use in particular statutes and in some of those\ninstances it referred to the territorial sea of the United\nStates. E.g., 16 U.S.C. § 1362(15); 26 U.S.C. § 638(1);\n46 U.S.C. §§ 2301, 4301, 4701(3). That provides little\n\nPROCOPIO v. WILKIE 17\n\n\n\n Respectfully, the Haas court went astray when it\nfound ambiguity in § 1116 based on “competing methods\nof defining the reaches of a sovereign nation” and the\ngovernment’s urged distinction between Regulations 311\nand 313. 525 F.3d at 1184–86. As discussed above,\ninternational law uniformly confirms that the “Republic of\nVietnam” included its territorial sea. And we cannot read\ninto § 1116 an ambiguity that relies on a distinction\nbetween Regulations 311 and 313 made by the govern-\nment only after § 1116 was adopted. Haas is overruled. 7\n\n\n\n\ninsight into Congress’ use of the formal name of a foreign\ncountry absent an express definition. In short, none of\nthese statutes sheds any light on how Congress under-\nstood the “Republic of Vietnam” when it passed the Agent\nOrange Act in 1991, and none create any ambiguity in the\nface of long-established, uniform international law recog-\nnizing the “Republic of Vietnam” includes its territorial\nsea.\n 7 “[W]e have never applied stare decisis mechanical-\nly to prohibit overruling our earlier decisions determining\nthe meaning of statutes.” Monell v. Dep’t of Social Servs.\nof City of New York, 436 U.S. 658, 695 (1978). Charging\nthat “stare decisis in respect to statutory interpretation\nhas ‘special force,’ for ‘Congress remains free to alter what\nwe have done,’” the dissent seems to suggest we can never\noverrule a precedent interpreting a statute. Dissent at 4\n(quoting John R. Sand & Gravel Co. v. United States, 552\nU.S. 130, 139 (2008)). But we see no reason here to “place\non the shoulders of Congress the burden of the Court’s\nown error.” Monell, 436 U.S. at 695. The parties have\npresented arguments and evidence not considered in\nHaas. Haas, 525 F.3d at 1183-86. Moreover, the dissent’s\nconcern for “stability in the law” is misplaced. Dissent at\n3 (quoting Robert Bosch, LLC v. Pylon Mfg. Corp., 719\nF.3d 1305, 1316 (Fed. Cir. 2013). While there are certain-\n\n18 PROCOPIO v. WILKIE\n\n\n\n\n The parties and amici have differing views on the role\nthe pro-veteran canon should play in this analysis. See\ngenerally Henderson v. Shinseki, 562 U.S. 428, 441 (2011);\nBrown v. Gardner, 513 U.S. 115, 117-18 (1994); King v.\nSt. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991); Fishgold\nv. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285\n(1946); Boone v. Lightner, 319 U.S. 561, 575 (1943). Given\nour conclusion that the intent of Congress is clear from\nthe text of § 1116—and that clear intent favors veterans—\nwe have no reason to reach this issue.\n No judge on this court has determined that this veter-\nan should be denied benefits under § 1116. One concur-\nrence concludes that § 1116 is ambiguous but finds the\nagency’s interpretation unreasonable. See Lourie, J.,\nconcurring. Because we decide that the statute is unam-\nbiguous, we need not decide whether the agency’s inter-\npretation is reasonable. The dissent concludes that\n§ 1116 is ambiguous but claims it is “premature” to decide\nwhether the agency’s interpretation is unreasonable.\nDissent at 17 (refusing to consider the reasonableness of\nthe agency’s interpretation). Respectfully, by declining to\nreach Chevron step two, the dissent fails to decide this\ncase. 8\n\n\n\nly situations where parties’ reliance on our settled law is\nof paramount concern (see, e.g., Dickerson v. United\nStates, 530 U.S. 428, 443 (2000) (declining to overrule\nMiranda v. Arizona, 384 U.S. 436 (1966), because “Mi-\nranda has become embedded in routine police practice to\nthe point where the warnings have become part of our\nnational culture”)), no such reliance concern exists here.\n 8 The dissent criticizes our interpretation of § 1116\nas a “policy choice [that] should be left to Congress,”\nnoting the “cost of expanding the presumption of service\nconnection.” Dissent at 16. Respectfully, we are inter-\npreting a statute, not making a policy judgment. Moreo-\n\nPROCOPIO v. WILKIE 19\n\n\n\n CONCLUSION\n Congress has spoken directly to the question of\nwhether those who served in the 12 nautical mile territo-\nrial sea of the “Republic of Vietnam” are entitled to\n§ 1116’s presumption if they meet the section’s other\nrequirements. They are. Because “the intent of Congress\nis clear, that is the end of the matter.” Chevron, 467 U.S.\nat 842. Mr. Procopio is entitled to a presumption of\nservice connection for his prostate cancer and diabetes\nmellitus. Accordingly, we reverse.\n REVERSED AND REMANDED\n\n\n\n\nver, the dissent’s criticism seems out of place where it has\nnot concluded that the agency’s determination is reasona-\nble or that Mr. Procopio should be denied his benefits.\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ALFRED PROCOPIO, JR.,\n Claimant-Appellant\n\n v.\n\n ROBERT WILKIE, SECRETARY OF VETERANS\n AFFAIRS,\n Respondent-Appellee\n ______________________\n\n 2017-1821\n ______________________\n\n Appeal from the United States Court of Appeals for\nVeterans Claims in No. 15-4082, Judge Coral Wong\nPietsch.\n ______________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362642/", "author_raw": "MOORE, Circuit Judge."}, {"author": "LOURIE, Circuit Judge, concurring", "type": "concurrence", "text": "LOURIE, Circuit Judge, concurring in the judgment.\n I join the majority in reversing the judgment of the\nVeterans Court, but, respectfully, I would do so for differ-\nent reasons.\n I do not agree with the majority that international\nlaw and sovereignty principles, which would include the\nterritorial waters of the Republic of Vietnam, render the\nphrase “served in the Republic of Vietnam” in 38 U.S.C.\n§ 1116 unambiguous. See Majority at 8–10. Sovereign\nborders are not necessarily what Congress had in mind\nwhen it enacted statutes for veterans’ benefits, and specif-\nically, when it enacted the Agent Orange Act. See Haas v.\nPeake, 525 F.3d 1168, 1175–83 (Fed. Cir. 2008) (discuss-\n\n2 PROCOPIO v. WILKIE\n\n\n\ning the difficulty in determining the likelihood of exposure\nto herbicides rather than any sovereignty concerns). The\nmajority’s holding thus covers more legal territory than\nnecessary and decides an issue not before us.\n I instead agree with the court in Haas, see id. at\n1183–86, and the dissent, see Dissent at 5–15, that\n“served in the Republic of Vietnam” is ambiguous under\nChevron step one. The statute entitles a veteran to a\npresumption of service connection for certain diseases if\nthe veteran “served in the Republic of Vietnam.” 38\nU.S.C. § 1116(a). That qualification does not tell us\nwhether offshore waters are or are not included. Thus, as\nto that issue, the statute surely is ambiguous.\n I also agree with the Haas court that under Chevron\nstep two, the regulation promulgated by the agency\nreflects a reasonable interpretation of the statute. See\nHaas, 525 F.3d at 1186. However, unlike the court in\nHaas, I would hold that the agency’s interpretation of its\nregulation is not owed any deference as generally re-\nquired by Auer v. Robbins, 519 U.S. 452, 461–63 (1997),\nbecause the regulation is not ambiguous, see Christensen\nv. Harris Cty., 529 U.S. 576, 588 (2000) (“Auer deference\nis warranted only when the language of the regulation is\nambiguous.”). Contra Haas, 525 F.3d at 1186–97.\n The agency’s regulation states that “‘[s]ervice in the\nRepublic of Vietnam’ includes service in the waters off-\nshore and service in other locations if the conditions of\nservice involved duty or visitation in the Republic of\nVietnam.” 38 C.F.R. § 3.307(a)(6)(iii) (emphasis added).\nIn interpreting the regulation, we need not resort to\ninternational definitions of national sovereignty over\nwaters adjacent to land or to the pro-veteran canon; we\nshould simply read the plain language of the regulation.\nAnd, the plain reading of this inclusive regulation speci-\nfies that service in the Republic of Vietnam includes\n(1) “service in the waters offshore” and (2) “service in\n\nPROCOPIO v. WILKIE 3\n\n\n\nother locations if the conditions of service involved duty or\nvisitation in the Republic of Vietnam.” Id. Thus, a veter-\nan who served in the “waters offshore” is included within\nthe meaning of “service in the Republic of Vietnam” and\nentitled to presumptive service connection.\n The agency in this case appears to have interpreted\nthe “duty or visitation” clause to modify not only the\nservice in “other locations,” but also “waters offshore,”\ncreating a foot-on-land requirement. See Majority at 4–5\n(discussing the agency’s interpretation). However, if\n“duty or visitation” were required for all Vietnam veter-\nans, the phrases “waters offshore” and “other locations”\nwould be superfluous. Cf. Hibbs v. Winn, 542 U.S. 88, 102\n(2004) (citation omitted) (“A statute should be construed\nso that effect is given to all its provisions, so that no part\nwill be inoperative or superfluous, void or insignificant\n. . . .”). Under the agency’s interpretation, it would matter\nnot whether the veteran served in the “waters offshore” or\n“other locations” as long as the veteran set foot on the\nVietnam landmass, which renders the “duty or visitation”\nclause the only operative phrase. That is contrary to the\nregulation’s plain language.\n While we, at least until higher law says otherwise, are\nobligated to give some degree of deference to an agency in\ninterpreting its own regulation, see Auer, 519 U.S. at 461,\ndeference has its limits. We are not obligated to give an\nagency deference when the regulation is not ambiguous,\nsee Christensen, 529 U.S. at 588, or when an “alternative\nreading is compelled by the regulation’s plain language,”\nThomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512\n(1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430\n(1988)), as it does here. Thus, I would reverse the judg-\nment of the Veterans Court because the agency’s regula-\ntion plainly entitled Mr. Procopio to a presumption of\nservice connection for his prostate cancer and diabetes\nmellitus based on his service in the offshore waters of\nVietnam.\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ALFRED PROCOPIO, JR.,\n Claimant-Appellant\n\n v.\n\n ROBERT WILKIE, SECRETARY OF VETERANS\n AFFAIRS,\n Respondent-Appellee\n ______________________\n\n 2017-1821\n ______________________\n\n Appeal from the United States Court of Appeals for\nVeterans Claims in No. 15-4082, Judge Coral Wong\nPietsch.\n ______________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362642/", "author_raw": "LOURIE, Circuit Judge, concurring"}, {"author": "O’MALLEY, Circuit Judge, concurring", "type": "concurrence", "text": "O’MALLEY, Circuit Judge, concurring.\n I agree with the majority’s well-reasoned decision.\nThe term “Republic of Vietnam,” as it appears in\n38 U.S.C. § 1116, unambiguously encompasses its territo-\nrial waters.\n I write separately because I believe the pro-veteran\ncanon of construction adds further support to the majori-\nty’s conclusion. Specifically, I write to explain that: (1)\nthe pro-veteran canon, like every other canon of statutory\nconstruction, can and should apply at step one of Chevron\nto help determine whether a statutory ambiguity exists;\nand, (2) even when a statute remains irresolvably ambig-\n\n2 PROCOPIO v. WILKIE\n\n\n\n\nuous, when a choice between deferring to an agency\ninterpretation of that statute—or particularly where that\ninterpretation is itself ambiguous—and resolving any\nambiguity by application of the pro-veteran canon come to\na head, traditional notions of agency deference must give\nway. 1\n The Supreme Court has made clear that courts are ob-\nligated to apply all traditional tools of statutory interpre-\ntation at step one of Chevron. 467 U.S. at 843 n.9.\nIndeed, “we owe an agency’s interpretation of the law no\ndeference unless, after ‘employing traditional tools of\nstatutory construction,’ we find ourselves unable to dis-\ncern Congress’s meaning.” SAS Inst., Inc. v. Iancu, 138 S.\nCt. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at 843\nn.9.); see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,\n1630 (2018) (“[D]eference is not due unless a court, em-\nploying traditional tools of statutory construction, is left\nwith an unresolved ambiguity. And [here,] that [] is\nmissing: the canon against reading conflicts into statutes\nis a traditional tool of statutory construction and it, along\nwith the other traditional canons we have discussed, is\nmore than up to the job of solving today’s interpretive\npuzzle. Where, as here, the canons supply an answer,\nChevron leaves the stage.” (internal citations and quota-\ntions omitted)); Food & Drug Admin. v. Brown & Wil-\nliamson Tobacco Corp., 529 U.S. 120, 132–33 (2000)\n(employing at Chevron step one the “fundamental canon\nof statutory construction that the words of a statute must\n\n\n\n 1 I address both Chevron and Auer deference be-\ncause we relied on both in Haas v. Peake to uphold the\nagency’s regulation. We deferred to the agency’s interpre-\ntation of its own ambiguous regulation under Auer, and\nthen, in turn, found “that the regulation reflects a reason-\nable interpretation of the statute” under Chevron. 525\nF.3d 1168, 1186 (Fed. Cir. 2008).\n\nPROCOPIO v. WILKIE 3\n\n\n\nbe read in their context and with a view to their place in\nthe overall statutory scheme”); Gazelle v. Shulkin, 868\nF.3d 1006, 1011–12 (Fed. Cir. 2017) (employing at Chev-\nron step one the canon that “Congress ‘legislate[s] against\nthe backdrop of existing law’” (citation omitted)).\n A court similarly may not defer to an agency’s inter-\npretation of its own regulation or any other interpretive\nruling unless, after applying the same interpretative\nprinciples that apply in the context of statutory interpre-\ntation, the court finds the regulation or interpretation to\nbe ambiguous. Christensen v. Harris County, 529 U.S.\n576, 588 (2000) (“Auer deference is warranted only when\nthe language of the regulation is ambiguous.”); Aqua\nProds., Inc. v. Matal, 872 F.3d 1290, 1316 (Fed. Cir. 2017)\n(en banc) (“We use the same interpretive rules to construe\nregulations as we do statutes[.]”); Roberto v. Dep’t of\nNavy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (same). Thus,\nthere is no doubt that courts must apply all traditional\ntools of statutory construction before resort to agency\ndeference, regardless of at what point the agency seeks\ndeference.\n There is also no doubt that the pro-veteran canon is\none such traditional tool. Henderson v. Shinseki, 562 U.S.\n428, 441 (2011) (“We have long applied the canon that\nprovisions for benefits to members of the Armed Services\nare to be construed in the beneficiaries’ favor.” (quotations\nomitted)); see Antonin Scalia, Judicial Deference to Ad-\nministrative Interpretations of Law, 1989 DUKE L.J. 511,\n515 (1989) (“[T]he consideration and evaluation of policy\nconsequences” is “part of the traditional judicial tool-kit\nthat is used in applying the first step of Chevron[.]”). The\npro-veteran canon instructs that provisions providing\nbenefits to veterans should be liberally construed in the\nveterans’ favor, with any interpretative doubt resolved to\ntheir benefit. See, e.g., King v. St. Vincent’s Hosp., 502\nU.S. 215, 220 n.9 (1991). The Supreme Court first articu-\nlated this canon in Boone v. Lightner to reflect the sound\n\n4 PROCOPIO v. WILKIE\n\n\n\n\npolicy that we must “protect those who have been obliged\nto drop their own affairs to take up the burdens of the\nnation.” 319 U.S. 561, 575 (1943). This same policy\nunderlies the entire veterans benefit scheme. Barrett v.\nPrincipi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he\nveterans benefit system is designed to award entitlements\nto a special class of citizens, those who risked harm to\nserve and defend their country. This entire scheme is\nimbued with special beneficence from a grateful sover-\neign.” (quotations omitted)).\n Few provisions embody this veteran-friendly purpose\nmore than § 1116’s presumption of service connection for\nthose who served in the Republic of Vietnam. Congress\nenacted this presumption in response to concerns that the\nagency was “utilizing too high a standard for determining\nif there is a linkage between exposure to Agent Orange\nand a subsequent manifestation of a disease” and was\nthereby “failing to give the benefit of the doubt to veter-\nans in prescribing the standards in the regulations for VA\nto use in deciding whether to provide service connection\nfor any specific disease.” Sidath Viranga Panangala et\nal., Cong. Research Serv., R41405, Veterans Affairs:\nPresumptive Service Connection and Disability Compen-\nsation 14 (2014) (quoting Nehmer v. United States Veter-\nans’ Admin.¸712 F. Supp. 1420, 1423 (N.D. Cal. 1989)); see\nalso Agent Orange Legislation and Oversight: Hearing on\nS. 1692 & S. 1787 Before the S. Comm. on Veterans’\nAffairs, 1988 Leg., 2nd Sess. 5 (statement of Sen. Thomas\nA. Daschle, Member, S. Comm. on Veterans’ Affairs)\n(“[T]here is a time for study and more study, and there is\na time for leadership. In the case of veterans exposed to\nAgent Orange . . . science will never be able to dictate\npolicy. That is our role.”). Section 1116 was designed to\nafford veterans the benefit of the doubt in the face of\nscientific uncertainty.\n Courts have “long applied” the pro-veteran canon of\nconstruction to such provisions. Henderson, 562 U.S. at\n\nPROCOPIO v. WILKIE 5\n\n\n\n441. And, because we presume Congress legislates with\nthe knowledge of judicial canons of statutory construction,\nwe should apply this canon to resolve doubt in a claim-\nant’s favor because that is precisely what Congress in-\ntended when it enacted the Agent Orange Act in 1991\nagainst the backdrop of Boone. King, 502 U.S. at 220 n.9.\nThus, when interpreting such statutes, or regulations\npromulgated thereunder, we may not resort to agency\ndeference unless, after applying the pro-veteran canon\nalong with other tools of statutory interpretation, we are\nleft with an unresolved ambiguity. 2\n The government contends that applying the pro-\nveteran canon before resorting to agency deference would\nusurp the agency’s role of gap-filling. But the government\nforgets that an agency has no responsibility to fill gaps if\nwe find that Congress did not leave such a gap. SAS, 138\nS. Ct. at 1358; City of Arlington v. F.C.C., 569 U.S. 290,\n327 (2013) (Roberts, C.J., dissenting) (“We do not leave it\nto the agency to decide when it is in charge.”). And,\n\n\n\n 2 Of course, application of the pro-veteran canon\nwill not always resolve ambiguities in a statute or regula-\ntion in the veterans’ favor. For example, in Nat’l Org. of\nVeterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, we\nresorted to agency deference despite applying the pro-\nveteran canon because other canons of statutory construc-\ntion and the pro-veteran canon pulled in opposite direc-\ntions. 260 F.3d 1365, 1378 (Fed. Cir. 2001). And, in\nBurden v. Shinseki, we found that the pro-veteran canon\nwas not enough to resolve a statutory ambiguity when\ndeciding whether to award benefits to a veteran’s surviv-\ning common law spouse over the veteran’s children be-\ncause neither interpretation had a particularly pro-\nveteran reading. 727 F.3d 1161, 1169–70 (Fed. Cir. 2013).\nThus, while application of the pro-veteran canon may\nresolve any apparent ambiguity, it will not always do so.\n\n6 PROCOPIO v. WILKIE\n\n\n\n\nimportantly, it ignores that “the duty to interpret statutes\nas set forth by Congress is a duty that rests with the\njudiciary.” Bankers Tr. N.Y. Corp. v. United States, 225\nF.3d 1368, 1376 (Fed. Cir. 2000). Deference cannot dis-\nplace either this duty or the duty to consider appropriate\nlegal doctrines when exercising it.\n When the pro-veteran canon and agency deference\ncome to a head, it is agency deference—the weaker of two\ndoctrines at any level—that must give way. Several\njustices of the Supreme Court have urged their colleagues\n“to reconsider, in an appropriate case, the premises that\nunderlie Chevron and how courts have implemented that\ndecision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121\n(2018) (Kennedy, J., concurring); see also Michigan v.\nE.P.A., 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concur-\nring) (“I write separately to note that [the agency’s] re-\nquest for deference raises serious questions about the\nconstitutionality of our broader practice of deferring to\nagency interpretations of federal statutes.”). By requiring\ncourts to defer to an agency’s interpretation of a statute—\nnot because it is the correct interpretation but because it\nis merely reasonable—Chevron deference “wrests from\nCourts the ultimate interpretative authority to say what\nthe law is,” and thereby “raises serious separation-of-\npowers questions.” Michigan, 135 S. Ct. at 2712.\n The case for Auer deference is even weaker. Not only\nhave several justices expressed concerns with Auer defer-\nence, the Supreme Court recently granted certiorari on\nthe question of whether the Court should overrule Auer\nentirely. Kisor v. Shulkin, 880 F.3d 1378 (Fed. Cir. 2018),\ncert. granted, Kisor v. Wilkie, 2018 WL 6439837 (2018)\n(granting certiorari on question of “[w]hether the Court\nshould overrule Auer and Seminole Rock” and declining to\nconsider “[a]lternatively”-presented question of “whether\nAuer deference should yield to a substantive canon of\nconstruction”). As I have previously opined, Auer defer-\nence “encourages agencies to write ambiguous regulations\n\nPROCOPIO v. WILKIE 7\n\n\n\nand interpret them later, which defeats the purpose of\ndelegation, undermines the rule of law, and ultimately\nallows agencies to circumvent the notice-and-comment\nrulemaking process.” Kisor v. Shulkin, 880 F.3d 1378,\n1379–80 (Fed. Cir. 2018) (O’Malley, J., dissenting from\ndenial of en banc) (internal quotations and alterations\nomitted) (citing Hudgens v. McDonald, 823 F.3d 630, 639\nn.5 (Fed. Cir. 2016) (O’Malley, J.); Johnson v. McDonald,\n762 F.3d 1362, 1366–68 (Fed. Cir. 2014) (O’Malley, J.,\nconcurring)). In this way, Auer deference leaves agencies’\nrulemaking authority unchecked and, as with Chevron,\nraises serious questions regarding separation of powers.\nDecker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 621 (2013)\n(Scalia, J., dissenting) (explaining that Auer “contravenes\none of the great rules of separation of powers” that “[h]e\nwho writes the law must not adjudge its violation”)\n Of course, we have no authority to overturn either\nChevron or Auer. But we can and should consider these\nwell-documented weaknesses when agency deference\nconflicts with the pro-veteran canon of construction.\nQuestionable principles of deference should not displace\nlong-standing canons of construction. Here, there is no\njustification for deferring to the agency’s interpretation of\n“Republic of Vietnam” when that interpretation fails to\naccount for the purpose underlying the entire statutory\nscheme providing benefits to veterans. See Util. Air\nRegulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) (“Even\nunder Chevron’s deferential framework, agencies must\noperate within the bounds of reasonable interpreta-\ntion. . . . A statutory provision that may seem ambiguous\nin isolation is often clarified by the remainder of the\nstatutory scheme because only one of the permissible\nmeanings produces a substantive effect that is compatible\nwith the rest of the law.” (internal quotations and altera-\ntions omitted)). Rather, deference should yield to the\ncanon that embodies this very purpose. To hold otherwise\nwould not only wrest from us our interpretative authority\n\n8 PROCOPIO v. WILKIE\n\n\n\n\nto say what the law is, it would displace congressional\nintent.\n Similarly, there is no justification for deferring to the\nagency’s interpretation of its own ambiguous regulation\nwhen it twice attempted and failed to codify the foot-on-\nland requirement through the notice-and-comment rule-\nmaking process. Presumptions of Service Connection for\nCertain Disabilities, and Related Matters, 69 Fed. Reg.\n44,614, 44,620 (July 27, 2004); Definition of Service in the\nRepublic of Vietnam, 73 Fed. Reg. 20,566, 20,567 (Apr. 16,\n2008). We should not reward the agency with Auer defer-\nence when it circumvents the rules mandated by Congress\nin the Administrative Procedure Act in its effort to reach\na result contrary to the pro-veteran canon. And, when the\nagency does not deny that its interpretation of the regula-\ntions to which it now points to support the foot-on-land\nrequirement has been inconsistent over the years, the\ncase for deference is weaker still. Haas, 525 F.3d at 1190\n(“[T]he agency’s current interpretation of its regulations\ndiffers from the position it took in some previous adjudi-\ncations and seemed to take in its Adjudication Manu-\nal[.]”). Thus, in a case like this one, where questionable\nresort to agency deference and the pro-veteran canon\ncome to a head, agency deference must yield.\n The government contends that the pro-veteran canon,\nlike the rule of lenity—which “requires interpreters to\nresolve ambiguity in criminal laws in favor of defend-\nants”—is a canon of last resort that cannot trump agency\ndeference. Whitman v. United States, 135 S. Ct. 352, 353\n(2014). This comparison misses the mark. While the\nSupreme Court cautions against the overuse of the rule of\nlenity, it has treated the pro-veteran canon more favora-\nbly. Compare Moskal v. United States, 498 U.S. 103, 108\n(1990) (“[W]e have always reserved lenity for those situa-\ntions in which a reasonable doubt persists about a stat-\nute’s intended scope even after resort to the language and\nstructure, legislative history, and motivating policies of\n\nPROCOPIO v. WILKIE 9\n\n\n\nthe statute.” (internal quotations omitted)), with Hender-\nson, 562 U.S. at 441 (“We have long applied the canon\nthat provisions for benefits to members of the Armed\nServices are to be construed in the beneficiaries’ favor.”\n(quotations omitted)). This is not surprising considering\nthat the principles animating the rule of lenity differ\ngreatly from those of the pro-veteran canon. The rule of\nlenity merely reflects a “presupposition of our law to\nresolve doubts in the enforcement of a penal code against\nthe imposition of a harsher punishment,” but it is “not out\nof any sentimental consideration, or for want of sympathy\nwith the purpose of Congress in proscribing evil or anti-\nsocial conduct.” Bell v. United States, 349 U.S. 81, 83\n(1955). In contrast, the pro-veteran canon recognizes this\ncountry’s equitable obligation to “those who have been\nobliged to drop their own affairs to take up the burdens of\nthe nation.” Boone, 319 U.S. at 575.\n In this way, the pro-veteran canon is more analogous\nto the substantive canon of construction applied in the\ncontext of Indian law, which instructs that “statutes are\nto be construed liberally in favor of Indians, with ambigu-\nous provisions interpreted to their benefit.” Montana v.\nBlackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). As\nthe Supreme Court has explained, “standard principles of\nstatutory construction do not have their usual force” when\nweighed against the pro-Indian canon because the canon\nis “rooted in the unique trust relationship between the\nUnited States and the Indians.” Id.\n Applying this principle, courts have found that the\npro-Indian canon trumps agency deference under Chev-\nron. Cobell v. Norton, 240 F.3d 1081, 1101 (D.C. Cir.\n2001) (“Chevron deference is not applicable” in the context\nof Indian law because “the special strength” of this canon\ntrumps the normally-applicable deference.); see also\nRamah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461–62\n(10th Cir. 1997) (“[T]he canon of construction favoring\nNative Americans controls over the more general rule of\n\n10 PROCOPIO v. WILKIE\n\n\n\n\ndeference to agency interpretations of ambiguous stat-\nutes.”). The same should be true in this context.\n As explained above, this country’s relationship with\nits veterans is also both unique and important. The policy\nthat we owe a debt of gratitude to those who served our\ncountry, which is the driving purpose behind the Agent\nOrange Act, is derived from the same sources as the pro-\nveteran canon, i.e., that those who served their country\nare entitled to special benefits from a grateful nation.\nSee, e.g., 137 Cong. Rec. E1486-01, 137 Cong. Rec. E1486-\n01, E1486, 1991 WL 65877, *1 (“We owe it to our Vietnam\nveterans to enact badly needed legislation such as this so\nthat they are given a full and proper ‘thank you.’”); Bar-\nrett, 363 F.3d at 1320. Therefore, when the pro-veteran\ncanon and reflexive agency deference conflict, the canon\nshould control.\n By codifying in § 1116 a presumption of service con-\nnection for those who served in the Republic of Vietnam,\nCongress recognized that veterans should not have to\nfight for benefits from the very government they once\nrisked their lives to defend. We ignore this purpose when\nwe fail to apply the pro-veteran canon to resolve ambigui-\nties in statutes and regulations that provide benefits to\nveterans; and, by failing to hold that agency deference\nmust yield to the pro-veteran canon, we permit agencies\nto do the same. The practical result is that veterans like\nMr. Procopio, even after returning home, are still fighting.\nTherefore, while I agree with the majority’s decision, I\nwrite separately to lament the court’s failure—yet again—\nto address and resolve the tension between the pro-\nveteran canon and agency deference. 3\n\n\n\n 3 While the Supreme Court will consider whether\nAuer should be overruled and, thus, not available in any\ncases, it did not agree to consider a second question\n\nPROCOPIO v. WILKIE 11\n\n\n\n\nraising whether principles of agency deference generally\nmust yield when at odds with the pro-veteran canon of\nconstruction.\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ALFRED PROCOPIO, JR.,\n Claimant-Appellant\n\n v.\n\n ROBERT WILKIE, SECRETARY OF VETERANS\n AFFAIRS,\n Respondent-Appellee\n ______________________\n\n 2017-1821\n ______________________\n\n Appeal from the United States Court of Appeals for\nVeterans Claims in No. 15-4082, Judge Coral Wong\nPietsch.\n ______________________", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362642/", "author_raw": "O’MALLEY, Circuit Judge, concurring"}, {"author": "CHEN, Circuit Judge, dissenting", "type": "dissent", "text": "CHEN, Circuit Judge, dissenting, with whom Circuit\nJudge DYK joins.\n Mr. Procopio suffers from prostate cancer and type 2\ndiabetes. He claims that his conditions are service con-\nnected, relying on a statutory provision, 38 U.S.C. § 1116,\nthat creates a presumption of service connection for\nservice members who “served in the Republic of Vietnam\nduring the period beginning on January 9, 1962, and\nending on May 7, 1975.” We granted en banc review to\ndetermine whether this provision unambiguously applies\nto Blue Water Navy veterans, like Mr. Procopio, who\nserved in the territorial waters of Vietnam.\n\n2 PROCOPIO v. WILKIE\n\n\n\n\n The majority concludes that the statute unambiguous-\nly applies to Blue Water Navy veterans who did not set\nfoot on the Vietnam landmass and overrules our prior\ndecision to the contrary in Haas v. Peake, 525 F.3d 1168\n(Fed. Cir. 2008). In my view, the statute is ambiguous,\nand the majority inappropriately preempts Congress’s\nrole in determining whether the statute should apply in\nthese circumstances—an issue which Congress is grap-\npling with at this very time.\n Our court has already confronted this precise inter-\npretive question for veterans who served on ships off the\ncoast of Vietnam during the Vietnam War. And we con-\ncluded, after considering the statute and its legislative\nhistory, that this statutory phrase is ambiguous. See id.\nat 1185–86. By repudiating a statutory interpretation\nfrom a 10-year old precedential opinion without any\nevidence of changed circumstances, today’s decision\nundermines the principle of stare decisis.\n Contrary to the majority’s conclusion, international\nlaw and sovereignty principles do not dictate that Con-\ngress unambiguously intended “Republic of Vietnam” to\ninclude its territorial waters. No prior case has an-\nnounced a principle that a statute’s reference to a country\nname should be treated as a term of art that encompasses\nboth the country’s landmass and territorial waters. Such\na rule is particularly anomalous in the context of a statute\ngoverning veterans’ disability benefits, which in no way\nimplicates a foreign country’s sovereignty over territorial\nwaters. Further, I see nothing in the legislative history of\n§ 1116 suggesting that Blue Water Navy veterans would\nbe covered by the presumption of service connection.\nBecause herbicides were sprayed throughout the land-\nmass of the Republic of Vietnam, it is at least a reasona-\nble understanding of the statute that Congress at the\ntime of the Agent Orange Act directed its statutory pre-\nsumption of service connection towards those service\nmembers who had actually served within the country’s\n\nPROCOPIO v. WILKIE 3\n\n\n\nland borders. I would therefore find, as we did in Haas,\nthat § 1116 is ambiguous under Chevron step one. Ac-\ncordingly, I respectfully dissent.\n STARE DECISIS AND HAAS V. PEAKE\n This court has already ruled on the statutory inter-\npretation of service “in the Republic of Vietnam” under 38\nU.S.C. § 1116(a)(1). In Haas, we addressed whether a\nveteran who served on a ship that traveled in the territo-\nrial waters of Vietnam but who never went ashore “served\nin the Republic of Vietnam.” 525 F.3d at 1172. There, we\nreviewed the statute and legislative history and concluded\nthat the phrase was ambiguous. Id. at 1184.\n Despite our court’s settled statutory interpretation\nfrom a decade ago, the majority nevertheless elects to re-\nopen this already-decided interpretive issue. In doing so,\nthe majority disregards stare decisis, which serves an\nimportant purpose in American law. See Deckers Corp. v.\nUnited States, 752 F.3d 949, 956 (Fed. Cir. 2014) (“[S]tare\ndecisis exists to ‘enhance [ ] predictability and efficiency\nin dispute resolution and legal proceedings’ through\ncreation of settled expectations in prior decisions of the\ncourt.”) (citation omitted).\n In Robert Bosch, LLC v. Pylon Manufacturing Corp.,\nwe considered what effect stare decisis has when this\ncourt reviews panel decisions en banc. 719 F.3d 1305,\n1316 (Fed. Cir. 2013) (en banc). We pointed out that “the\nimplications of stare decisis are less weighty than if we\nwere [reconsidering] a precedent established by the court\nen banc.” Id. (internal quotation marks omitted). Never-\ntheless, we concluded that “panel opinions, like en banc\nopinions, invoke the principle of stare decisis,” reasoning\nthat, “because [our precedent] represents the established\nlaw of the circuit, a due regard for the value of stability in\nthe law requires that we have good and sufficient reason\nto reject it at this late date.” Id. (internal quotation\nmarks and citation omitted) (alteration in original).\n\n4 PROCOPIO v. WILKIE\n\n\n\n\n The Supreme Court has warned that “stare decisis in\nrespect to statutory interpretation has ‘special force,’ for\n‘Congress remains free to alter what we have done.’”\nJohn R. Sand & Gravel Co. v. United States, 552 U.S.\n130, 139 (2008) (citation omitted). “A difference of opinion\nwithin the Court . . . does not keep the door open for\nanother try at statutory construction . . . .” Watson v.\nUnited States, 552 U.S. 74, 82 (2007). Indeed, “the very\npoint of stare decisis is to forbid us from revisiting a\ndebate every time there are reasonable arguments to be\nmade on both sides.” Lighting Ballast Control LLC v.\nPhilips Elecs. N. Am. Corp., 744 F.3d 1272, 1283 (Fed.\nCir. 2014) (en banc), abrogated by Teva Pharm. USA, Inc.\nv. Sandoz, Inc., 135 S. Ct. 831 (2015) (quoting Morrow v.\nBalaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J.,\nconcurring)). Congress has the responsibility for revising\nits statutes; the Judiciary should be more circumspect\nbefore forsaking prior statutory interpretations. See Neal\nv. United States, 516 U.S. 284, 295–96 (1996). Indeed, the\nrecent debates in Congress, which required consideration\nof the significant cost of the proposed addition of Blue\nWater Navy veterans underscores why Congress, rather\nthan the courts, should be the one to revisit our interpre-\ntation in Haas. See Citation of Supplemental Authority 1,\nECF No. 39; Blue Water Navy Vietnam Veterans Act,\nH.R. 299, 115th Cong. (2017–18) (“Blue Water Navy\nVietnam Veterans Act of 2018”). The Supreme Court’s\nadmonishment against overruling prior statutory inter-\npretation is particularly apt here, where Congress has\nbeen actively considering whether to take any action in\nresponse to this court’s interpretation.\n Our statutory interpretation in Haas has been the law\nof this court for over ten years. Neither party has identi-\nfied any intervening development of the law that has\nremoved or weakened the conceptual underpinnings from\nHaas in this regard. I would therefore follow Haas to\nconclude that the statutory phrase at issue is ambiguous.\n\nPROCOPIO v. WILKIE 5\n\n\n\n STATUTORY AMBIGUITY\n I do not find persuasive the majority’s conclusion that\ninternational law dictates its interpretation. The Haas\ncourt considered similar sources of evidence but still\nconcluded that the statutory phrase was ambiguous.\nHaas, 525 F.3d at 1184. All of the international law\nsources relied upon by the majority relate to laws that\nstatutorily define the territorial waters over which a\nsovereign nation has dominion and control. See, e.g.,\nRestatement (Third) of Foreign Relations Law § 511(a)\n(“The territorial sea: a belt of sea that may not exceed 12\nnautical miles, measured from a baseline that is either\nthe low-water line along the coast or the seaward limit of\nthe internal waters of the coastal state or, in the case of\nan archipelagic state, the seaward limit of the archipelag-\nic waters”); United States v. California, 332 U.S. 19, 33\n(1947) (“That the political agencies of this nation both\nclaim and exercise broad dominion and control over our\nthree-mile marginal belt is now a settled fact.”); 1958\nConvention on the Territorial Sea and the Contiguous\nZone, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29,\n1958) (“The sovereignty of a State extends, beyond its\nland territory and its internal waters, to a belt of sea\nadjacent to its coast, described as the territorial sea.”);\nUnited Nations Convention on the Law of the Sea, art. 2,\n1833 U.N.T.S. 397, 400 (Dec. 10, 1982, entered into force\non Nov. 16, 1994) (“The sovereignty of a coastal State\nextends, beyond its land territory and internal waters\nand, in the case of an archipelagic State, its archipelagic\nwaters, to an adjacent belt of sea, described as the territo-\nrial sea.”). They do not purport to define territorial wa-\nters as part of the definition of the country itself.\n Section 1116, a U.S. veterans’ disability benefits stat-\nute, has nothing to do with the dominion and control of a\nforeign sovereign over territorial waters. Nor would an\nopinion construing a U.S. veterans’ disability benefits\nstatute be in any danger of violating the law of the na-\n\n6 PROCOPIO v. WILKIE\n\n\n\n\ntions. See Murray v. Schooner Charming Betsy, 6 U.S. 64\n(1804).\n There is no support for a rule that a statute that re-\nfers to a country includes the country’s territorial waters. 1\nThe majority admonishes the government for “fail[ing] to\ncite any instance in which the unmodified use of a formal\nsovereign name has been construed to not include its\nterritorial sea” (Majority Op. at 15) but the same can be\nsaid of the majority. The majority creates a new canon of\nstatutory construction that any use of a formal country\nname necessarily includes the nation’s territorial seas,\nwithout citing a single instance where Congress has\nstated this intent or where the Judiciary has construed a\nstatute’s use of a formal country name to include the\ncountry’s territorial seas.\n Dictionaries from 1991, when the Agent Orange Act\nwas passed, often defined countries in terms of square\nmiles of the land mass. 2 The same is true of maps, which\n\n\n 1 Moreover, there is no clear evidence that the now-\ndefunct Republic of Vietnam ever claimed a territorial sea\nextending 12 nautical miles from its shore, including\nduring the Vietnam War. See Majority Op. at 10. Up\nuntil 1988, the United States only claimed a three-mile\nnautical belt as its territorial sea. See Territorial Sea of\nthe United States of America, Presidential Proclamation\n5,928, 103 Stat. 2981, 2982 (Dec. 27, 1988); see also Unit-\ned States v. California, 332 U.S. 19, 33–34 (1947). There\nis no reason to believe that the Republic of Vietnam, when\nit existed, would have done otherwise.\n 2 See, e.g., Vietnam, RANDOM HOUSE WEBSTER’S\nCOLLEGE DICTIONARY (1991) (“a country in SE Asia,\ncomprising the former states of Annam, Tonkin, and\nCochin-China: formerly part of French Indochina; divided\ninto North Vietnam and South Vietnam in 1954 and\n\nPROCOPIO v. WILKIE 7\n\n\n\n\nreunified in 1976. [pop] 64,000,000; 126,104 sq. mi.\n(326,609 sq. km)”); Vietnam, WEBSTER’S NINTH NEW\nCOLLEGIATE DICTIONARY (1991) (“country SE Asia in\nIndochina; state, including Tonkin & N Annam, set up\n1945–46; with S. Annam & Cochin China, an associated\nstate of French Union 1950–54; after civil war, divided\n1954–75 at 17th parallel into republics of North Vietnam\n(* Hanoi) & South Vietnam (* Saigon) reunited 1975 (*\nHanoi) area 127,207 sq mi (330,738 sq km), pop\n52,741,766” (emphasis omitted)); Vietnam, WEBSTER’S\nNEW GEOGRAPHIC DICTIONARY (1988) (“Republic, SE Asia,\ndivided 1954–75 into North Vietnam and South Vietnam .\n. .”); United States of America, RANDOM HOUSE WEBSTER’S\nCOLLEGE DICTIONARY (1991) (“country made up of the\nNorth American area extending from the Atlantic Ocean\nto the Pacific Ocean between Canada and Mexico, togeth-\ner with Alas. & Hawaii; 3,615,211 sq. mi. (9,376,614 sq.\nkm); pop. 240,856,000; cap. Washington; also called the\nUnited States”); United States of America, WEBSTER’S\nNINTH NEW COLLEGIATE DICTIONARY (2001) (“United\nStates”); United States, WEBSTER’S NINTH NEW\nCOLLEGIATE DICTIONARY (2001) (“a republic in the N\nWestern Hemisphere comprising 48 conterminous states,\nthe District of Columbia, and Alaska in North America,\nand Hawaii in the N Pacific. 249,632,692; conterminous\nUnited States, 3,615,122 sq. mi. (9,363,166 sq. km);\nWashington, D.C. . . . Also called United States of Ameri-\nca”); United States of America commonly shortened to\nUnited States, WEBSTER’S NEW GEOGRAPHIC DICTIONARY\n(1988) (“Federal republic, North America, bounded on N\nby Canada and (in Alaska) by the Arctic Ocean, on E by\nthe Atlantic Ocean, on S by Mexico and Gulf of Mexico,\nand on W by Pacific Ocean; 3,615,123 sq. m. (excluding\nGreat Lakes); pop. (1980c) 226,545,805; * Washington,\nD.C.”).\n\n8 PROCOPIO v. WILKIE\n\n\n\n\ntypically show the land area of a country. 3 I am unaware\nof any dictionary or standard map that defines countries\nin terms of land plus the territorial sea, nor does the\nmajority point to any.\n Congress has repeatedly shown that when it wants to\ninclude a country’s territorial waters, it does so expressly.\nSee, e.g., Veterans’ Rehabilitation and Education\nAmendments of 1980, Pub. L. No. 96-466, § 513(b), 94\nStat. 2171 (1980) (defining eligibility for educational\nassistance and other service-connected benefits as “veter-\nans who during the Vietnam era served in Vietnam, in air\nmissions over Vietnam, or in naval missions in the waters\nadjacent to Vietnam shall be considered to be veterans\nwho served in the Vietnam theatre of operations”); Tax\nReform Act of 1986, H. Rep. No. 99-841, at 599 (1986), as\nreprinted in 1986 U.S.C.C.A.N. 4075, 4687 (clarifying that\n“income attributable to services performed in the United\nStates or in the U.S. territorial waters is U.S. source.”); 18\nU.S.C. § 2280(b)(1)(A)(ii) (criminalizing certain acts if\ncommitted “in the United States, including the territorial\nseas”). 4 This is true even when Congress uses a sovereign\n\n\n\n 3 See, e.g., NATIONAL GEOGRAPHIC, ATLAS OF THE\nWORLD 18–19 (6th ed. 1990) [hereinafter, “ATLAS OF THE\nWORLD”] (depicting the United States in terms of land\narea); CENTRAL INTELLIGENCE AGENCY, THE WORLD\nFACTBOOK 1991 324, 332 (1991). National Geographic’s\nAtlas of the World also defined countries in terms of the\nsize of their land mass. See, e.g., ATLAS OF THE WORLD at\n127 (“Socialist Republic of Vietnam Area: 329,556 sq km\n(127,242 sq mi)”).\n 4 See also, e.g., 38 U.S.C. § 101(30) (referring to vet-\nerans who “served in Mexico, on the borders thereof, or in\nthe waters adjacent thereto”); Omnibus Consolidated\nAppropriations Act, 1997, Pub. L. No. 104- 208, Division\n\nPROCOPIO v. WILKIE 9\n\n\n\nnation’s formal name in the statute. See 10 U.S.C.\n§§ 3756, 6258, 8756 (extending the Korea Defense Service\nMedal to veterans who “served in the Republic of Korea or\nthe waters adjacent thereto”). The underlying assump-\ntion in each of these statutes is that the use of the country\nname is not sufficient to include territorial or adjacent\nwaters. The majority’s contrary conclusion renders Con-\ngress’s express inclusion or exclusion of territorial seas in\nthese statutes superfluous, which is “at odds with one of\nthe most basic interpretive canons, that ‘“[a] statute\nshould be construed so that effect is given to all its provi-\nsions, so that no part will be inoperative or superfluous,\nvoid or insignificant.”’” Corley v. United States, 556 U.S.\n303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101\n(2004) (quoting 2A N. Singer, Statutes and Statutory\nConstruction § 46.06 pp. 181–186 (rev. 6th ed. 2000))).\nAnd the majority’s attempt to explain a few of these\nexamples away by creating a distinction between Con-\n\n\nC, § 604, 110 Stat. 3009 (1996) (codified at 8 U.S.C.\n§ 1158(a)(1)) (“[a]ny alien who is physically present in the\nUnited States or who arrives in the United States\n(whether or not at a designated port of arrival and includ-\ning an alien who is brought to the United States after\nhaving been interdicted in international or United States\nwaters), irrespective of such alien’s status, may apply for\nasylum in accordance with this section . . . .”); 16 U.S.C.\n§ 2402(8) (defining “import” to mean “to land on, bring\ninto, or introduce into, or attempt to land on, bring into or\nintroduce into, any place subject to the jurisdiction of the\nUnited States, including the 12-mile territorial sea of the\nUnited States”). Compare 26 U.S.C. § 638(1) (“United\nStates” includes “subsoil of those submarine areas which\nare adjacent to the territorial waters of the United\nStates”), with id. at § 7701(a)(9) (“United States” includes\n“only the States and the District of Columbia”).\n\n10 PROCOPIO v. WILKIE\n\n\n\n\ngress’s use of the term “waters adjacent” versus territorial\nwaters or seas is speculative and entirely unconvincing.\nSee Majority Op. at 14–15.\n By enacting the Agent Orange Act, Congress intended\nto help Vietnam veterans who had manifested certain\nspecified diseases as a result of having been exposed to\nAgent Orange. See 38 U.S.C. § 1116. The VA has ex-\nplained that “virtually all herbicide spraying in Vietnam,\nwhich was for the purpose of eliminating plant cover for\nthe enemy, took place over land.” 73 Fed. Reg. 20566–01,\n20568 (Apr. 16, 2008) (citing Jeanne Mager Stellman et\nal., The extent and patterns of usage of Agent Orange and\nother herbicides in Vietnam, 422 NATURE 681, 681–687\n(2003)). It therefore stands to reason that Congress\nwould restrict the service connection presumption to those\nveterans who were actually exposed to Agent Orange on\nthe landmass of Vietnam. 5 Accord Haas, 525 F.3d at\n1192–93. Congress did not possess any information\nsuggesting that herbicides had been used up to three or\ntwelve nautical miles from the shore.\n The majority errs in dismissing the relevance of\n§§ 3.311a and 3.313, regulations that existed before the\n\n\n 5 Mr. Procopio counters this understanding with\nanother theory—that “ships in the near-shore marine\nwaters collected water that was contaminated with the\nrunoff from areas sprayed with Agent Orange,” and the\n“[s]hipboard distillers converted the marine water into\nwater for the boilers and potable water by vaporizing\nthem and condensing the liquid” in a way that “enhanced\nthe effect of Agent Orange.” Appellant En Banc Op. Br. at\n19. But Mr. Procopio presents no evidence that Congress\nat the time of the Agent Orange Act was aware of or had\nconsidered the potential dangers from contaminated\nrunoff.\n\nPROCOPIO v. WILKIE 11\n\n\n\nenactment of § 1116. The majority suggests that Con-\ngress was enacting the statute against a background in\nwhich the existing regulations covered territorial waters,\nbut it misunderstands the history behind each rule.\nRegulation 3.311a was promulgated in 1985 to implement\nthe Veterans’ Dioxin and Radiation Exposure Compensa-\ntion Standards Act, Public Law 98–542, 98 Stat. 2725,\n2725–34 (1984) (”1984 Dioxin Act”). Section 5 of the 1984\nDioxin Act directed the VA to establish guidelines\ngrounded in “sound scientific and medical evidence” that\nrequire the veterans’ death or disability be based on\nactual exposure to herbicides containing dioxin. Id. at\n2727–28. The 1984 Dioxin Act noted that there was\nevidence that specific diseases—chloracne, porphyria\ncutanea tarda, and soft tissue sarcoma—were linked to\nexposure to dioxin-containing herbicides. Id. at 2725.\nThereafter, the VA promulgated § 3.311a. The § 3.311a\nrulemaking notice noted that herbicides “were used\nduring the Vietnam conflict to defoliate trees, remove\nground cover, and destroy crops,” and that many veterans\n“were deployed in or near locations where Agent Orange\nwas sprayed.” Adjudication of Claims Based on Exposure\nto Dioxin or Ionizing Radiation, 50 Fed. Reg. 15848, 15849\n(Apr. 22, 1985). Because the regulation required exposure\nto dioxin-containing herbicides and herbicides had been\nsprayed on Vietnam’s landmass, the VA imposed a foot-\non-land requirement for veterans that served offshore or\nin locations other than Vietnam:\n “Service in the Republic of Vietnam” includes ser-\n vice in the waters offshore and service in other lo-\n cations, if the conditions of service involved duty\n or visitation in the Republic of Vietnam.\n38 C.F.R. § 3.311a(b) (1986). The natural reading of the\nregulation’s use of the conjunctive “and” confirms that the\nprepositional phrase applied both to offshore veterans and\nthose stationed outside of Vietnam.\n\n12 PROCOPIO v. WILKIE\n\n\n\n\n The VA promulgated § 3.313 for an entirely different\npurpose. Contrary to § 3.311a, § 3.313 was not linked to\nherbicide exposure, but rather was based on a 1990 CDC\nstudy that determined that all Vietnam veterans—\nincluding those that served on the landmass as well as\nthose who served offshore—had a higher incidence rate of\nnon-Hodgkin’s lymphoma than non-Vietnam veterans.\nClaims Based on Service in Vietnam, 55 Fed. Reg. 43123–\n01 (Oct. 26, 1990). The 1990 study further concluded that\nno correlation existed between non-Hodgkin’s lymphoma\nand exposure to Agent Orange. Id. The VA therefore\nworded § 3.313 specifically to apply to all offshore veter-\nans, without a foot-on-land requirement:\n Service in Vietnam includes service in the waters\n offshore, or service in other locations if the condi-\n tions of service involved duty or visitation in Vi-\n etnam.\n38 C.F.R. § 3.313(a) (1990). The natural reading of the\nregulation’s use of the disjunctive “or” and movement of\nthe comma to offset “offshore” from the rest of the sen-\ntence confirms that the offshore veterans were not subject\nto a foot-on-land requirement. While the grammatical\ndifferences between the two regulations may appear to be\nsmall, they set forth critical distinctions driven by the\ndifferent purposes between the regulations.\n When the VA promulgated these two regulations,\ntheir meanings were not ambiguous. The ambiguity arose\nwhen Congress appeared to codify both VA regulations in\nthe Agent Orange Act, one regulation with a foot-on-land\nrequirement and one without. 137 Cong. Rec. H719-01\n(1991) (“[T]he bill would . . . codify decisions the Secretary\nof Veterans Affairs has announced to grant presumptions\nof service connection for non-Hodgkin’s lymphoma and\nsoft-tissue sarcoma in veterans who served in Vi-\netnam . . . .”). The Agent Orange Act used the term\n\nPROCOPIO v. WILKIE 13\n\n\n\n“served in the Republic of Vietnam” without defining the\nterm:\n [A] disease specified in paragraph (2) of this sub-\n section becoming manifest as specified in that\n paragraph in a veteran who, during active mili-\n tary, naval, or air service, served in the Republic\n of Vietnam during the period beginning on Janu-\n ary 9, 1962, and ending on May 7, 1975;\n38 U.S.C. § 1116(a)(1)(A).\n As we concluded in Haas, § 1116’s use of “Republic of\nVietnam” rather than “Vietnam” counsels against the\nmajority’s reading of the statute because the language\nmore closely tracks that used in § 3.311a, which imposed\nthe foot-on-land requirement on offshore veterans. Haas,\n525 F.3d at 1185–86. A congressional choice to codify the\nfoot-on-land requirement from § 3.311a would have been a\nreasonable one, since both § 3.311a and the Agent Orange\nAct—unlike § 3.313—required that the service connection\nbe based on actual exposure to herbicides during the war.\nMoreover, “Congress included non-Hodgkin’s lymphoma\n[from § 3.313(a)] on the list of diseases specifically identi-\nfied in the Agent Orange Act based on evidence that,\ncontrary to the conclusion of the 1990 CDC study, non-\nHodgkin’s lymphoma was in fact associated with exposure\nto Agent Orange.” Id. at 1179 n.1 (citing Report to the\nSecretary of Veterans Affairs on the Association Between\nAdverse Health Effects and Exposure to Agent Orange,\nreprinted in Links Between Agent Orange, Herbicides, and\nRare Diseases: Hearing before the Human Resources and\nIntergovernmental Relations Subcomm. of the Comm. on\nGov't Relations, 101st Cong., 2d Sess. 22, 41 (1990)).\nAgainst this regulatory backdrop prior to the codification\nof service connection presumption for certain diseases\nthrough the Agent Orange Act, it is far from clear that\nCongress intended § 1116 to encompass veterans who\nserved in offshore waters up to 12 nautical miles away\n\n14 PROCOPIO v. WILKIE\n\n\n\n\nfrom Vietnam. During that lead-up to the Agent Orange\nAct, the majority cites no evidence that Blue Water Navy\nveterans had been receiving service connection presump-\ntions for any of these diseases listed in § 3.311a.\n The majority’s conclusion that “Republic of Vietnam”\nin § 3.311a “covers everyone whose service included duty\nor visitation ‘in the Republic of Vietnam,’ which, under\nbackground law, embraces the territorial sea” (Majority\nOp. at 12) is incorrect, because it assumes that the VA\nalso bought into the majority’s newly announced principle\nthat reciting a sovereign’s formal name in a statute or—\nfor purposes of § 3.311a—a regulation, necessarily in-\ncludes the country’s territorial seas. The majority cites no\ncase law or other support for this assumption. Nor does\nthe majority cite support for its subsequent conclusion\nthat § 3.311a encompasses “only a subset” of offshore\nveterans—those that served on land, within the internal\nwaterways, or within the territorial seas of Vietnam. See\nid. There is no evidence in the regulation or its history\nthat the VA intended this interpretation.\n I also disagree with the majority’s conclusion that\n§ 1116’s language specifying that the presumption is\napplicable to veterans regardless of what military branch\nthey served in (i.e., “active military, naval, or air service\nin the Republic of Vietnam”) has any bearing on whether\noffshore veterans are subject to a foot-on-land require-\nment. See Majority Op. at 10. A veteran who served in\nthe Navy but spent time on the landmass of Vietnam is no\nless likely to have a service connection due to exposure to\nAgent Orange than a veteran who served on the land in\nVietnam in the Army. Moreover, this statutory phrase is\ncommonly used in other sections of Title 38, suggesting\nthat Congress did not have something particular in mind\nas to how it repeated this phrase in § 1116. See, e.g., 38\nU.S.C. § 1110 (entitling certain veterans to compensation\nfor disability, injury, or disease contracted or aggravated\n“in the active military, naval, or air service, during a\n\nPROCOPIO v. WILKIE 15\n\n\n\nperiod of war”); id. § 1112(b) (establishing presumption of\nservice connection for prisoners of war where condition\nbecame manifest “after active military, naval, or air\nservice”).\n After reviewing the applicable provisions, it is not\nclear to me that Congress unambiguously intended\n“served in the Republic of Vietnam” to include Blue Water\nveterans. Although international law establishes that\nsovereign nations have dominion and control over their\nterritorial seas, a U.S. veterans’ benefits statute has\nnothing to do with regulating interactions with a foreign\nsovereign. And the Agent Orange Act’s legislative history\nprovides no support for the majority’s conclusion. I there-\nfore believe, as this court concluded in Haas, that the\nstatutory phrase “Republic of Vietnam” is ambiguous\nwhen applied to service in the waters adjoining the land-\nmass of Vietnam. See Haas, 525 F.3d at 1184.\n As for the liberal construction principle known as the\npro-veteran canon, neither the Supreme Court nor this\ncourt has applied it at step one of Chevron as a means for\ndeeming Congress’s intent clear for an otherwise unclear\nstatute. But even if it were relevant to the step one\ninquiry, I do not view this canon, given its indeterminate\nnature, as compelling the conversion of this ambiguous\nstatute into an unambiguous one.\n The significance of the policy choice and budget im-\npact that the court makes today further underscores why\nmore compelling indicia are required before concluding\nthat Congress clearly intended the majority’s statutory\ninterpretation. Congress recently estimated that it would\nneed to allocate an additional $1.8 billion during fiscal\nyear 2019, and $5.7 billion over 10 years, to fund the Blue\nWater Navy Vietnam Veterans Act of 2018, a bill that\nwould have explicitly expanded the presumption of Agent\nOrange exposure to Blue Water Navy veterans. See Blue\nWater Navy Vietnam Veterans Act of 2018: Hearing on\n\n16 PROCOPIO v. WILKIE\n\n\n\n\nH.R. 299 Before the S. Comm. on Veterans’ Affairs, 115th\nCong. 1, 4 (2018) (statement of Dr. Paul R. Lawrence,\nUnder Secretary, Benefits Department, Veterans’ Affairs).\nThe bill passed the House unanimously in 2018 but failed\nto pass the Senate before the end of the 2018 session, due,\nin part, to concerns over the cost of expanding the pre-\nsumption of service connection. It is not for the Judiciary\nto step in and redirect such a significant budget item—\nrather, that policy choice should be left to Congress.\n I do not reach the question of whether Haas should be\nreaffirmed insofar as it held that at step two of Chevron,\ndeference was owed to the interpretation of the statute by\nthe VA. See id. at 1184, 1192–93. Relying on principles of\nAuer deference, the Haas panel held that the VA had\ninterpreted the statute to preclude coverage of Blue Water\nNavy veterans who had not set foot on the Vietnam\nlandmass. See id. at 1186–90, 1197. The court also held\nthat the interpretation was reasonable in the light of the\nevidence available to the VA at the time it made its\ninterpretation. Id. at 1195, 1197. The court declined to\nconsider other evidence not considered by the VA. Id. at\n1194.\n In ordering rehearing en banc we asked that the par-\nties address the question of ambiguity. 6 In accordance\nwith our order the parties have not, in fact, fully ad-\n\n\n 6 See Order Granting En Banc Rehearing at 2, Pro-\ncopio v. Wilkie, No. 17-1821 (Fed. Cir. Aug. 16, 2018), ECF\nNo. 63 (ordering the parties to brief the following issue:\n“Does the phrase ‘served in the Republic of Vietnam’ in 38\nU.S.C. § 1116 unambiguously include service in offshore\nwaters within the legally recognized territorial limits of\nthe Republic of Vietnam, regardless of whether such\nservice included presence on or within the landmass of\nthe Republic of Vietnam?”).\n\nPROCOPIO v. WILKIE 17\n\n\n\ndressed the step two Chevron issues. At the same time\nthere have been relevant developments that bear on that\nquestion. The Supreme Court has recently granted\ncertiorari to address the question of whether Auer should\nbe overruled. 7 There have been additional studies of the\nissue of Blue Water Navy diseases attributable to dioxin\nexposure, and the issue continues to be studied, with a\nnew report predicted to become available next April.\nUnder these circumstances, I think it premature to ad-\ndress Haas’ treatment of step two of Chevron.\n\n\n\n\n 7 See Order Granting Certiorari, Kisor v. Wilkie,\nNo. 18-15, ___ S. Ct. ___ (Dec. 10, 2018) (“The petition for\nwrit of certiorari is granted limited to Question 1 present-\ned by the petition”); Cert. Pet., Kisor v. Wilkie, No. 18-15\n(Jun. 29, 2018) (“1. Whether the Court should overrule\nAuer and Seminole Rock.”).", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4362642/", "author_raw": "CHEN, Circuit Judge, dissenting"}]} | PROST | NEWMAN | LOURIE | 2 | DYK; MOORE; O'MALLEY; REYNA; WALLACH; TARANTO; CHEN; STOLL | {"PROST": ", Chief", "NEWMAN": ", Circuit", "LOURIE": ", Circuit", "DYK": ", Circuit", "MOORE": ", Circuit", "O'MALLEY": ", Circuit", "REYNA": ", Circuit", "WALLACH": ", Circuit", "TARANTO": ", Circuit", "CHEN": ", Circuit", "STOLL": ", Circuit"} | 4 | 0 | 1 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4585389/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Alfred PROCOPIO, Jr., Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-29\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ALFRED PROCOPIO, JR.,\n Claimant-Appellant\n\n v.\n\n ROBERT WILKIE, SECRETARY OF VETERANS\n AFFAIRS,\n Respondent-Appellee\n ______________________\n\n 2017-1821\n ______________________\n\n Appeal from the United States Court of Appeals for\nVeterans Claims in No. 15-4082, Judge Coral Wong\nPietsch.\n ______________________\n\n Decided: January 29, 2019\n ______________________\n\n MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe\nLLP, Washington, DC, argued for claimant-appellant.\nAlso represented by THOMAS MARK BONDY, ROBERT\nMANHAS; MATTHEW R. SHAHABIAN, New York, NY; JOHN\nB. WELLS, Law Office of John B. Wells, Slidell, LA.\n\n ERIC PETER BRUSKIN, Commercial Litigation Branch,\nCivil Division, United States Department of Justice,\nWashington, DC, argued for respondent-appellee. Also\nrepresented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN,\nJR., MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, BRANDON\n\n2 PROCOPIO v. WILKIE\n\n\n\n\nA. JONAS, Office of General Counsel, United States De-\npartment of Veterans Affairs, Washington, DC.\n\n CATHERINE EMILY STETSON, Hogan Lovells US LLP,\nWashington, DC, for amici curiae National Organization\nof Veterans' Advocates, Inc., Paralyzed Veterans of Amer-\nica, Military Officers Association of America, AMVETS,\nVeterans and Military Law Section, Federal Bar Associa-\ntion. Also represented by WILLIAM DAVID MAXWELL.\nAmicus curiae National Organization of Veterans' Advo-\ncates, Inc. also represented by CHRIS ATTIG, Attig Steel,\nPLLC, Little Rock, AR.\n\n KENNETH M. CARPENTER, Law Offices of Carpenter\nChartered, Topeka, KS, for amicus curiae Joseph A.\nTaina.\n\n GLENN R. BERGMANN, Bergmann Moore, LLC, Bethes-\nda, MD, for amicus curiae The American Legion. Also\nrepresented by JAMES DANIEL RIDGWAY.\n\n ANGELA K. DRAKE, The Veterans Clinic at The Uni-\nversity of Missouri School of Law, Columbia, MO, for\namicus curiae National Law School Veterans Clinic\nConsortium.\n\n DORIS HINES, Finnegan, Henderson, Farabow, Garrett\n& Dunner, LLP, Washington, DC, for amicus curiae\nDisabled American Veterans. Also represented by\nCHARLES COLLINS-CHASE, SEAN DAMON, RONALD LEE\nSMITH.\n\n STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP\n(US), San Diego, CA, for amici curiae Blue Water Navy\nVietnam Veterans Association, Association of the United\nStates Navy, Fleet Reserve Association. Also represented\nby JACOB ANDERSON, ERIN GIBSON.\n\nPROCOPIO v. WILKIE 3\n\n\n\n STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Wash-\nington, DC, for amici curiae National Veterans Legal\nServices Program, Veterans of Foreign Wars of the United\nStates. Amicus curiae National Veterans Legal Services\nProgram also represented by BARTON F. STICHMAN, Na-\ntional Veterans Legal Services Program, Washington, DC.\n ______________________\n\n Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,\nMOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, and\n STOLL, Circuit Judges.\n Opinion for the court filed by Circuit Judge MOORE, in\n which Chief Judge PROST and Circuit Judges NEWMAN,\n O’MALLEY, REYNA, WALLACH, TARANTO, and STOLL join.\n Concurring opinion filed by Circuit Judge LOURIE.\n Concurring opinion filed by Circuit Judge O’MALLEY.\nDissenting opinion filed by Circuit Judge CHEN, in which\n Circuit Judge DYK joins.\nMOORE, Circuit Judge.\n Alfred Procopio, Jr., appeals a decision of the Court of\nAppeals for Veterans Claims denying service connection\nfor prostate cancer and diabetes mellitus as a result of\nexposure to an herbicide agent, Agent Orange, during his\nVietnam War-era service in the United States Navy.\nBecause we hold that the unambiguous language of 38\nU.S.C. § 1116 entitles Mr. Procopio to a presumption of\nservice connection for his prostate cancer and diabetes\nmellitus, we reverse.\n BACKGROUND\n In 1991, Congress passed the Agent Orange Act, codi-\nfied at 38 U.S.C. § 1116, granting a presumption of ser-\nvice connection for certain diseases to veterans who\n“served in the Republic of Vietnam”:\n\n4 PROCOPIO v. WILKIE\n\n\n\n\n [A] disease specified in paragraph (2) of this\n subsection becoming manifest as specified in that\n paragraph in a veteran who, during active\n military, naval, or air service, served in the\n Republic of Vietnam during the period beginning\n on January 9, 1962, and ending on May 7, 1975;\n and [B] each additional disease (if any) that (i) the\n Secretary determines in regulations prescribed\n under this section warrants a presumption of\n service-connection by reason of having positive\n association with exposure to an herbicide agent,\n and (ii) becomes manifest within the period (if\n any) prescribed in such regulations in a veteran\n who, during active military, naval, or air service,\n served in the Republic of Vietnam during the\n period beginning on January 9, 1962, and ending\n on May 7, 1975, and while so serving was exposed\n to that herbicide agent, shall be considered to\n have been incurred in or aggravated by such\n service, notwithstanding that there is no record of\n evidence of such disease during the period of such\n service.\n38 U.S.C. § 1116(a) (emphasis added). Under § 1116(f),\nsuch a veteran “shall be presumed to have been exposed\nduring such service to [the] herbicide agent . . . unless\nthere is affirmative evidence to establish that the veteran\nwas not exposed to any such agent during that service.”\n In 1993, the Department of Veterans Affairs issued\nregulations pursuant to § 1116 that stated “‘Service in the\nRepublic of Vietnam’ includes service in the waters off-\nshore and service in other locations if the conditions of\nservice involved duty or visitation in the Republic of\nVietnam.” 38 C.F.R. § 3.307(a)(6) (1993) (“Regula-\ntion 307”). In 1997 in a General Counsel opinion about a\ndifferent regulation, the government interpreted Regula-\ntion 307 as limiting service “in the Republic of Vietnam”\n\nPROCOPIO v. WILKIE 5\n\n\n\nto service in waters offshore the landmass of the Republic\nof Vietnam only if the service involved duty or visitation\non the landmass, including the inland waterways of the\nRepublic of Vietnam, (“foot-on-land” requirement). Gen.\nCounsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63,603,\n63,604 (Dec. 1, 1997).\n A panel of this court considered the government’s in-\nterpretation of § 1116 in Haas v. Peake, 525 F.3d 1168\n(Fed. Cir. 2008). Mr. Haas had served in waters offshore\nthe landmass of the Republic of Vietnam but was denied\n§ 1116’s presumption of service connection because he\ncould not meet the government’s foot-on-land require-\nment. Id. at 1173. Accordingly, we were asked to decide\nwhether “serv[ice] in the Republic of Vietnam” in § 1116\nrequired presence on the landmass or inland waterways of\nthe Republic of Vietnam. Id. at 1172.\n We applied the two-step framework of Chevron\nU.S.A., Inc. v. Natural Resources Defense Council, Inc.,\n467 U.S. 837, 842–43 (1984), to § 1116 and Regula-\ntion 307. At Chevron step one, the Haas court held that\n§ 1116 was ambiguous as applied to veterans who, like\nMr. Haas, served in the waters offshore the landmass of\nthe Republic of Vietnam but did not meet the foot-on-land\nrequirement. 525 F.3d at 1184. At Chevron step two, the\nHaas court held Regulation 307 was “a reasonable inter-\npretation of the statute” but itself ambiguous. Id. at\n1186. It then “[a]ppl[ied] the substantial deference that is\ndue to an agency’s interpretation of its own regulations”\nunder Auer v. Robbins, 519 U.S. 452, 461–63 (1997), to\nuphold the government’s interpretation of Regulation 307,\ni.e., the foot-on-land requirement. Id. at 1195. See also\nHaas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008).\n Mr. Procopio served aboard the U.S.S. Intrepid from\nNovember 1964 to July 1967. In July 1966, the Intrepid\n\n6 PROCOPIO v. WILKIE\n\n\n\n\nwas deployed in the waters offshore the landmass of the\nRepublic of Vietnam, including its territorial sea. 1\nMr. Procopio sought entitlement to service connection for\ndiabetes mellitus in October 2006 and for prostate cancer\nin October 2007 but was denied service connection for\nboth in April 2009. Diabetes mellitus is listed in the\nstatute under paragraph (2) of § 1116(a), and prostate\ncancer is listed in the pertinent regulation, 38 C.F.R.\n§ 3.309(e). The Board of Veterans’ Appeals likewise\ndenied him service connection in March 2011 and again in\nJuly 2015, finding “[t]he competent and credible evidence\nof record is against a finding that the Veteran was pre-\nsent on the landmass or the inland waters of Vietnam\nduring service and, therefore, he is not presumed to have\nbeen exposed to herbicides, including Agent Orange,”\nunder § 1116. The Veterans Court affirmed, determining\nit was bound by our decision in Haas. Mr. Procopio timely\nappealed.\n A panel of this court heard oral argument on May 4,\n2018, and on May 21, 2018, the parties were directed to\nfile supplemental briefs on “the impact of the\npro-claimant canon on step one of the Chevron analysis in\nthis case, assuming that Haas v. Peake did not consider\nits impact.” On August 16, 2018, the court sua sponte\nordered the case be heard en banc. We asked the parties\nto address two issues:\n Does the phrase “served in the Republic of\n Vietnam” in . . . § 1116 unambiguously include\n service in offshore waters within the legally\n recognized territorial limits of the Republic of\n Vietnam, regardless of whether such service\n\n\n\n 1 The Board of Veterans’ Appeals found, and the\nparties do not dispute, that Mr. Procopio served in the\nRepublic of Vietnam’s territorial sea. J.A. 32, 49-52.\n\nPROCOPIO v. WILKIE 7\n\n\n\n included presence on or within the landmass of\n the Republic of Vietnam?\n What role, if any, does the pro-claimant canon\n play in this analysis?\n In addition to the parties’ briefs, we received seven\namicus briefs. The en banc court heard oral argument on\nDecember 7, 2018.\n DISCUSSION\n Section 1116 extends the presumption of service con-\nnection to veterans who “served in the Republic of Vi-\netnam” during a specified period if they came down with\ncertain diseases. At issue is whether Mr. Procopio, who\nserved in the territorial sea of the “Republic of Vietnam”\nduring the specified period, “served in the Republic of\nVietnam” under § 1116.\n Chevron sets forth a two-step framework for inter-\npreting a statute, like § 1116, that is administered by an\nagency. 467 U.S. at 842. Step one asks “whether Con-\ngress has directly spoken to the precise question at issue.”\nId. “If the intent of Congress is clear, that is the end of\nthe matter,” and we “must give effect to the unambiguous-\nly expressed intent of Congress.” Id. at 842–43. If, on the\nother hand, “the statute is silent or ambiguous with\nrespect to the specific issue,” we proceed to Chevron step\ntwo, at which we ask “whether the agency’s answer is\nbased on a permissible construction of the statute.” Id. at\n843.\n Here, we determine at Chevron step one that Con-\ngress has spoken directly to the question of whether\nMr. Procopio, who served in the territorial sea of the\n“Republic of Vietnam,” “served in the Republic of Vi-\netnam.” He did. Congress chose to use the formal name\nof the country and invoke a notion of territorial bounda-\nries by stating that “service in the Republic of Vietnam” is\nincluded. The intent of Congress is clear from its use of\n\n8 PROCOPIO v. WILKIE\n\n\n\n\nthe term “in the Republic of Vietnam,” which all available\ninternational law unambiguously confirms includes its\nterritorial sea. Because we must “give effect to the un-\nambiguously expressed intent of Congress,” we do not\nreach Chevron step two.\n In 1954, the nation then known as Vietnam was parti-\ntioned by a “provisional military demarcation line” into\ntwo regions colloquially known as “North Vietnam” and\n“South Vietnam.” Geneva Agreements on the Cessation\nof Hostilities in Vietnam, art. 1, July 20, 1954, 935\nU.N.T.S. 149 (“Geneva Accords”). In 1955, South Vietnam\nwas formally named, by proclamation of its president, the\n“Republic of Vietnam.” Provisional Constitutional Act\nEstablishing the Republic of Viet-Nam, Oct. 26, 1955,\nreprinted in A.W. Cameron (ed.), Viet-Nam Crisis: A\nDocumentary History, Volume I: 1940-1956 (1971).\n International law uniformly confirms that the “Re-\npublic of Vietnam,” like all sovereign nations, included its\nterritorial sea. This was true in 1955 when the “Republic\nof Vietnam” was created. Geneva Accords at art. 4 (ex-\ntending the provisional military demarcation line into the\n“territorial waters”). And this was true in 1991 when\nCongress adopted the Agent Orange Act. In 1958, the\nUnited States entered into the Convention on the Territo-\nrial Sea and the Contiguous Zone (“1958 Convention”),\nagreeing that “[t]he sovereignty of a State extends, be-\nyond its land territory and its internal waters, to a belt of\nsea adjacent to its coast, described as the territorial sea.”\n1958 Convention, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No.\n5639 (Apr. 29, 1958); see also United States v. California,\n381 U.S. 139, 165 (1965) (stating the 1958 Convention\nprovides “the best and most workable definitions availa-\nble” for defining coastal boundaries); Legal Issues Raised\nby the Proposed Presidential Proclamation to Extend the\nTerritorial Sea, 12 O.L.C. 238, 247 (1988) (“[T]he modern\nview is that the territorial sea is part of a nation and that\na nation asserts full sovereignty rights over its territorial\n\nPROCOPIO v. WILKIE 9\n\n\n\nsea . . . .”). In 1982, the United Nations Convention on\nthe Law of the Sea (“UNCLOS”) echoed the 1958 Conven-\ntion, stating “[t]he sovereignty of a coastal State extends\n. . . to an adjacent belt of sea, described as the territorial\nsea,” having a breadth “not exceeding 12 nautical miles.”\nPart II, arts. 2, 3, 1833 U.N.T.S. 397, 400 (Dec. 10, 1982).\nAnd the Restatement of Foreign Relations Law in effect\nwhen the Agent Orange Act was passed provided that “[a]\nstate has complete sovereignty over the territorial sea,\nanalogous to that which it possesses over its land territo-\nry, internal waters, and archipelagic waters,” meaning\n“[t]he rights and duties of a state and its jurisdiction are\nthe same in the territorial sea as in its land territory.”\nRestatement (Third) of Foreign Relations Law §§ 511,\ncmt. b, 512, cmt. a (1987); see also id. (“[I]nternational law\ntreats the territorial sea like land territory . . . .”); Presi-\ndential Proclamation 5928, 103 Stat. 2981 (1988) (“Inter-\nnational law recognizes that coastal nations may exercise\nsovereignty and jurisdiction over their territorial seas.”). 2\n\n\n\n 2 The dissent criticizes that these sources of inter-\nnational law merely “define the territorial waters over\nwhich a sovereign nation has dominion and control” but\n“do not purport to define territorial waters as part of the\ndefinition of the country itself.” Dissent at 5. But the\narea over which a sovereign nation has dominion and\ncontrol is a definition of the country itself, and the dissent\npoints to no sources supporting any other definition of the\n“Republic of Vietnam.” The dictionaries and maps the\ndissent cites define other terms (“Vietnam,” “United\nStates,” “Socialist Republic of Vietnam”). Dissent at 6, 8\nnn.2-3. When trying to discern what Congress meant by\n“in the Republic of Vietnam,” we think the contemporane-\nous definition provided by international law is a better\nsource than the definitions of other countries provided by\nthese generalist dictionaries and maps.\n\n10 PROCOPIO v. WILKIE\n\n\n\n\n Thus, all available international law, including but\nnot limited to the congressionally ratified\n1958 Convention, confirms that, when the Agent Orange\nAct was passed in 1991, the “Republic of Vietnam” includ-\ned both its landmass and its 12 nautical mile territorial\nsea. 3 The government has pointed to no law to the con-\ntrary. This uniform international law was the backdrop\nagainst which Congress adopted the Agent Orange Act.\nBy using the formal term “Republic of Vietnam,” Congress\nunambiguously referred, consistent with that backdrop, to\nboth its landmass and its territorial sea. 4 We also note\nthat the statute expressly includes “active military, naval,\nor air service . . . in the Republic of Vietnam,”\n§ 1116(a)(1), reinforcing our conclusion that Congress was\nexpressly extending the presumption to naval personnel\nwho served in the territorial sea. We conclude at Chevron\nstep one that the intent of Congress is clear from the text\nof § 1116: Mr. Procopio, who served in the territorial sea\nof the “Republic of Vietnam,” is entitled to § 1116’s pre-\nsumption.\n We find no merit in the government’s arguments to\nthe contrary. Its primary argument is that it injected\nambiguity into the term “Republic of Vietnam” prior to\nthe Agent Orange Act by promulgating two regulations,\n38 C.F.R. § 3.311a(a)(1) (“Regulation 311”) and § 3.313(a)\n\n\n\n 3 There is no dispute that, when the Agent Orange\nAct was passed in 1991, a nation’s territorial sea had a\nbreadth “not exceeding 12 nautical miles.” UNCLOS,\n1833 U.N.T.S. at 400.\n 4 We do not, as the dissent contends, “create[] a new\ncanon of statutory construction that any use of a formal\ncountry name necessarily includes the nation’s territorial\nseas.” Dissent at 6. This case requires us to determine\nonly what Congress meant when it used the phrase “in\nthe Republic of Vietnam” in 1991.\n\nPROCOPIO v. WILKIE 11\n\n\n\n(“Regulation 313”). According to the government, Regula-\ntion 311 imposed the foot-on-land requirement, but Regu-\nlation 313 did not. The government contends that § 1116\ncodified both regulations and that, accordingly, it is\nambiguous whether Congress intended to impose the foot-\non-land requirement. We are not persuaded.\n Regulation 311 created a presumption of service con-\nnection for chloracne and later soft-tissue sarcomas for\nveterans who served in “the Republic of Vietnam.” It\nstated:\n “Service in the Republic of Vietnam” includes\n service in the waters offshore and service in other\n locations, if the conditions of service involved duty\n or visitation in the Republic of Vietnam.\nRegulation 313 created a presumption of service connec-\ntion for Non-Hodgkin’s lymphoma for veterans who served\nin “Vietnam.” It stated:\n “Service in Vietnam” includes service in the\n waters offshore, or service in other locations if the\n conditions of service involved duty or visitation in\n Vietnam.\nThe government asks us to infer that Regulation 311\nimposed the foot-on-land requirement, and that Regula-\ntion 313 did not. This distinction is essential to its argu-\nment that § 1116, which codified both, is ambiguous. We\ndo not agree. We do not read Regulation 311, Regula-\ntion 313, or even later-adopted Regulation 307 as articu-\nlating the government’s current foot-on-land requirement.\nAnd there is no indication anyone, including the govern-\nment, did before § 1116 was adopted.\n Regulation 311 grants a presumption of service con-\nnection for “service in the waters offshore and service in\nother locations, if the conditions of service involved duty\nor visitation in the Republic of Vietnam.” Regulation 313\ngrants the presumption for “service in the waters offshore,\n\n12 PROCOPIO v. WILKIE\n\n\n\n\nor service in other locations if the conditions of service\ninvolved duty or visitation in Vietnam.” We do not read\nthese minor grammatical differences to compel the dis-\ntinction the government urges. At best, the addition of a\ncomma in Regulation 311 permits the clause “if the condi-\ntions of service involved duty or visitation in the Republic\nof Vietnam” to modify both “service in the waters off-\nshore” and “service in other locations.” But even if Regu-\nlation 311 is so read, it still does not impose the foot-on-\nland requirement: it covers everyone whose service in-\ncluded duty or visitation “in the Republic of Vietnam,”\nwhich, under background law, embraces the territorial\nsea.\n That is the straightforward meaning of the regulation\neven after taking full account of the comma. As the\ngovernment concedes, the “waters offshore” are broader\nthan the territorial sea. See Oral Argument at 55:08–\n55:19 (government’s counsel acknowledging offshore\nwaters “can also include beyond the territorial seas”); id.\nat 55:40–56:10 (government’s counsel confirming offshore\nwaters extend beyond the territorial sea); cf. id. at 2:00–\n2:16 (Mr. Procopio’s counsel stating “[t]he offshore water\nis broader than the territorial sea . . . and it’s an im-\nportant difference because a nation is sovereign only in its\nterritorial sea.”). Regulation 311’s requirement of “duty\nor visitation in the Republic of Vietnam” brings within\ncoverage only a subset of all those who served “offshore,”\nnamely, those whose service included presence on land, in\nthe inland waterways, or in the territorial sea, consistent\nwith international law. That is, veterans who served in\nthe waters offshore or in other locations would be eligible\nfor the presumption if during such service they visited the\nRepublic of Vietnam (which is defined as the landmass\nand territorial sea by international law).\n Given the undisputed distinction between offshore\nwaters and territorial seas, we see no basis for incorporat-\ning a foot-on-land requirement into Regulation 311. The\n\nPROCOPIO v. WILKIE 13\n\n\n\nonly discussion of this provision appears in the proposed\nrulemaking where the government explains that,\n“[b]ecause some military personnel stationed elsewhere\nmay have been present in the Republic of Vietnam, ‘ser-\nvice in the Republic of Vietnam’ will encompass services\nelsewhere if the person concerned actually was in the\nRepublic of Vietnam, however briefly.” 50 Fed. Reg. at\n15,848, 15,849 (Apr. 22, 1985). We see no evidence that\nthe government understood Regulation 311 to include the\nfoot-on-land requirement until after the Agent Orange Act\nwas passed. The government first articulated this posi-\ntion in 1997, six years after the Act. Gen. Counsel Prec.\n27-97 (July 23, 1997). We cannot read into § 1116 an\nambiguity that relies on a distinction made only after\n§ 1116 was adopted.\n It is undisputed that Regulation 313 covering Non-\nHodgkin’s lymphoma does not include the foot-on-land\nrequirement, meaning the presumption of service connec-\ntion for Non-Hodgkin’s lymphoma would have applied to\nveterans who served on the landmass or in the territorial\nsea. The government asserts that Regulation 311 pre-\nsumed service connection for diseases—chloracne and\nsoft-tissue sarcomas—linked to herbicide exposure, while\nRegulation 313 presumed service connection for a dis-\nease—Non-Hodgkin’s lymphoma—not linked to herbicide\nexposure. But that asserted distinction does not indicate\nambiguity in § 1116. Indeed, when Congress enacted\n§ 1116 it expressly extended the presumption to Non-\nHodgkin’s lymphoma, as well as chloracne and soft-tissue\nsarcomas. And the government argues that § 1116 in-\ntended to codify Regulation 311 and Regulation 313. No\nfair reading of § 1116 can exclude the very veterans\nsuffering from Non-Hodgkin’s lymphoma that were enti-\ntled to Regulation 313’s presumption, yet the govern-\nment’s (and the dissent’s) reading does just that:\nAccording to the government, a veteran with Non-\nHodgkin’s lymphoma who served in the Republic of Vi-\n\n14 PROCOPIO v. WILKIE\n\n\n\n\netnam’s territorial sea would have been entitled to service\nconnection under Regulation 313, but this same veteran\nwould not be entitled to service connection under § 1116.\nThis cannot be right. We decline to read § 1116, as the\ndissent urges, to both codify Regulation 313 and erode\nthat regulation’s coverage. We see no basis to conclude\nthat Congress chose to reduce the scope of service connec-\ntion for Non-Hodgkin’s lymphoma without explanation.\n In short, we do not understand Regulation 311 or\nRegulation 313 to articulate a foot-on-land requirement.\nWe find no merit to the government’s argument that\n§ 1116 is ambiguous because “Congress’s codification of\nthe existing regulatory presumptions . . . tells, at best, a\nconflicting story.” Appellee’s Br. 39–40. In 1991, Con-\ngress legislated against the backdrop of international law\nthat had defined the “Republic of Vietnam” as including\nits territorial sea for decades. The government’s foot-on-\nland requirement, first articulated in 1997, does not\nprovide a basis to find ambiguity in the language Con-\ngress chose.\n The government also argues the “Republic of Vi-\netnam” in § 1116 does not include its territorial sea be-\ncause when Congress intends to bring a territorial sea\nwithin the ambit of a statute, it says so expressly. 5 But\nthe examples the government points to address not a\nnation’s territorial sea, but only “waters adjacent.” 10\nU.S.C. §§ 3756, 6258, 8756 (extending the Korea Defense\nService Medal to those who “served in the Republic of\n\n\n 5 The government conceded, though, at oral argu-\nment that if Congress were to pass a statute forbidding\nmilitary action within a nation, that statute would be\nviolated if the President sent forces into the nation’s 12-\nmile territorial sea, as that would “impact the sovereign\nboundary of [the nation].” See Oral Argument at 27:37-\n28:13.\n\nPROCOPIO v. WILKIE 15\n\n\n\nKorea or the waters adjacent thereto”); Veterans’ Rehabil-\nitation and Education Amendments of 1980, Pub. L.\nNo. 96-466, § 513(b) (providing for the publishing of labor\nstatistics on “veterans . . . who served . . . in naval mis-\nsions in the waters adjacent to Vietnam”); 38 U.S.C.\n§ 101(30) (defining the term “Mexican border period” in\nthe case of “a veteran who . . . served in Mexico, on the\nborders thereof, or in the waters adjacent thereto”).\nWhile the dissent calls this distinction “speculative,”\nDissent at 10, both parties conceded at oral argument\nthat the “waters adjacent” to a nation are distinct from,\nand extend beyond, its territorial sea. See Oral Argument\nat 26:50-27:18 (Mr. Procopio); id. at 55:00–55:15 (govern-\nment). It is precisely because “waters adjacent” go beyond\na nation’s landmass and territorial sea that Congress\nneeded to specify “waters adjacent” in these statutes. See,\ne.g., Keene Corp. v. United States, 508 U.S. 200, 208\n(1993) (“[I]t is generally presumed that Congress acts\nintentionally and purposely in the disparate inclusion or\nexclusion” of “particular language”); W. Va. Univ. Hosps.,\nInc. v. Casey, 499 U.S. 83, 88-92 (1991) (comparing dis-\ntinct usage of “attorney’s fees” and “expert fees” among\nstatutes). These statutes cast no doubt on our conclusion\nthat, by using the formal term “Republic of Vietnam,”\nCongress unambiguously referred, consistent with uni-\nform international law, to both its landmass and its 12\nnautical mile territorial sea.\n The other statutes the government cites likewise cast\nno doubt on this conclusion. The government has failed to\ncite any instance in which the unmodified use of a formal\nsovereign name has been construed to not include its\nterritorial sea. Instead, the government would have us\ninfer that because several statutes refer to both the\n“United States” and its “territorial seas” or “territorial\nwaters,” the term “United States” cannot be generally\nunderstood to include territorial sea. We see no basis for\ndrawing that inference. As the Supreme Court has ob-\n\n16 PROCOPIO v. WILKIE\n\n\n\n\nserved, there are “many examples of Congress legislating\nin that hyper-vigilant way, to ‘remov[e] any doubt’ as to\nthings not particularly doubtful in the first instance.”\nCyan, Inc. v. Beaver Cty. Employees Ret. Fund, 138 S. Ct.\n1061, 1074 (2018). 6\n\n\n\n 6 In several cases, it is clear Congress’ express ref-\nerence to territorial sea was to remove any doubt as to a\nprovision’s meaning. For instance, in 16 U.S.C.\n§ 2402(8)’s definition of “import,” the statement that “any\nplace subject to the jurisdiction of the United States”\n“include[s] the 12-mile territorial sea of the United\nStates,” clearly reflects Congress’ express concern that\n“import” as defined in § 2402(8) could be misread to have\nthe same meaning as it has under the customs laws of the\nUnited States. For customs purposes a good may not be\nimported until it arrives at a port, see, e.g., 19 C.F.R. §\n101.1, and the “customs territory of the United States” is\nlimited to the States, the District of Columbia, and Puerto\nRico, and does not include other sovereign territory of the\nUnited States, see Harmonized Tariff Schedule of the\nUnited States, General Note 2. Similarly, the reference to\n“United States waters” in 8 U.S.C. § 1158(a)(1) serves a\nclarifying purpose in light of caselaw holding “physical\npresence” is a term of art in immigration law requiring an\nalien to have landed on shore, see Zhang v. Slattery, 55\nF.3d 732, 754 (2d Cir. 1995). Nothing in these provisions,\n18 U.S.C. § 2280(b)(1)(A)(ii), or 33 U.S.C. § 1203, suggests\nCongress did not understand the term “United States” to\ngenerally include its territorial sea.\n It is also unsurprising that Congress has found it ex-\npedient to define phrases including the term “United\nStates” for use in particular statutes and in some of those\ninstances it referred to the territorial sea of the United\nStates. E.g., 16 U.S.C. § 1362(15); 26 U.S.C. § 638(1);\n46 U.S.C. §§ 2301, 4301, 4701(3). That provides little\n\nPROCOPIO v. WILKIE 17\n\n\n\n Respectfully, the Haas court went astray when it\nfound ambiguity in § 1116 based on “competing methods\nof defining the reaches of a sovereign nation” and the\ngovernment’s urged distinction between Regulations 311\nand 313. 525 F.3d at 1184–86. As discussed above,\ninternational law uniformly confirms that the “Republic of\nVietnam” included its territorial sea. And we cannot read\ninto § 1116 an ambiguity that relies on a distinction\nbetween Regulations 311 and 313 made by the govern-\nment only after § 1116 was adopted. Haas is overruled. 7\n\n\n\n\ninsight into Congress’ use of the formal name of a foreign\ncountry absent an express definition. In short, none of\nthese statutes sheds any light on how Congress under-\nstood the “Republic of Vietnam” when it passed the Agent\nOrange Act in 1991, and none create any ambiguity in the\nface of long-established, uniform international law recog-\nnizing the “Republic of Vietnam” includes its territorial\nsea.\n 7 “[W]e have never applied stare decisis mechanical-\nly to prohibit overruling our earlier decisions determining\nthe meaning of statutes.” Monell v. Dep’t of Social Servs.\nof City of New York, 436 U.S. 658, 695 (1978). Charging\nthat “stare decisis in respect to statutory interpretation\nhas ‘special force,’ for ‘Congress remains free to alter what\nwe have done,’” the dissent seems to suggest we can never\noverrule a precedent interpreting a statute. Dissent at 4\n(quoting John R. Sand & Gravel Co. v. United States, 552\nU.S. 130, 139 (2008)). But we see no reason here to “place\non the shoulders of Congress the burden of the Court’s\nown error.” Monell, 436 U.S. at 695. The parties have\npresented arguments and evidence not considered in\nHaas. Haas, 525 F.3d at 1183-86. Moreover, the dissent’s\nconcern for “stability in the law” is misplaced. Dissent at\n3 (quoting Robert Bosch, LLC v. Pylon Mfg. Corp., 719\nF.3d 1305, 1316 (Fed. Cir. 2013). While there are certain-\n\n18 PROCOPIO v. WILKIE\n\n\n\n\n The parties and amici have differing views on the role\nthe pro-veteran canon should play in this analysis. See\ngenerally Henderson v. Shinseki, 562 U.S. 428, 441 (2011);\nBrown v. Gardner, 513 U.S. 115, 117-18 (1994); King v.\nSt. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991); Fishgold\nv. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285\n(1946); Boone v. Lightner, 319 U.S. 561, 575 (1943). Given\nour conclusion that the intent of Congress is clear from\nthe text of § 1116—and that clear intent favors veterans—\nwe have no reason to reach this issue.\n No judge on this court has determined that this veter-\nan should be denied benefits under § 1116. One concur-\nrence concludes that § 1116 is ambiguous but finds the\nagency’s interpretation unreasonable. See Lourie, J.,\nconcurring. Because we decide that the statute is unam-\nbiguous, we need not decide whether the agency’s inter-\npretation is reasonable. The dissent concludes that\n§ 1116 is ambiguous but claims it is “premature” to decide\nwhether the agency’s interpretation is unreasonable.\nDissent at 17 (refusing to consider the reasonableness of\nthe agency’s interpretation). Respectfully, by declining to\nreach Chevron step two, the dissent fails to decide this\ncase. 8\n\n\n\nly situations where parties’ reliance on our settled law is\nof paramount concern (see, e.g., Dickerson v. United\nStates, 530 U.S. 428, 443 (2000) (declining to overrule\nMiranda v. Arizona, 384 U.S. 436 (1966), because “Mi-\nranda has become embedded in routine police practice to\nthe point where the warnings have become part of our\nnational culture”)), no such reliance concern exists here.\n 8 The dissent criticizes our interpretation of § 1116\nas a “policy choice [that] should be left to Congress,”\nnoting the “cost of expanding the presumption of service\nconnection.” Dissent at 16. Respectfully, we are inter-\npreting a statute, not making a policy judgment. Moreo-\n\nPROCOPIO v. WILKIE 19\n\n\n\n CONCLUSION\n Congress has spoken directly to the question of\nwhether those who served in the 12 nautical mile territo-\nrial sea of the “Republic of Vietnam” are entitled to\n§ 1116’s presumption if they meet the section’s other\nrequirements. They are. Because “the intent of Congress\nis clear, that is the end of the matter.” Chevron, 467 U.S.\nat 842. Mr. Procopio is entitled to a presumption of\nservice connection for his prostate cancer and diabetes\nmellitus. Accordingly, we reverse.\n REVERSED AND REMANDED\n\n\n\n\nver, the dissent’s criticism seems out of place where it has\nnot concluded that the agency’s determination is reasona-\nble or that Mr. Procopio should be denied his benefits.\n\n United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n ALFRED PROCOPIO, JR.,\n Claimant-Appellant\n\n v.\n\n ROBERT WILKIE, SECRETARY OF VETERANS\n AFFAIRS,\n Respondent-Appellee\n ______________________\n\n 2017-1821\n ______________________\n\n Appeal from the United States Court of Appeals for\nVeterans Claims in No. 15-4082, Judge Coral Wong\nPietsch.\n ______________________\n[END_CASE]",
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4,586,298 | DUNCAN PARKING TECHNOLOGIES, INC., Appellant v. IPS GROUP, INC., Appellee IPS Group, Inc., Plaintiff-Appellant v. Duncan Solutions Inc., Duncan Parking Technologies, Inc., CivicSmart, Inc., Defendants-Appellees | Duncan Parking Technologies v. Ips Group, Inc. | 2019-01-31 | 2018-1205; 2018-1360 | U.S. Court of Appeals for the Federal Circuit | {"judges": "Lourie, Dyk, Taranto", "parties": "", "opinions": [{"author": "LOURIE, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n for the Federal Circuit\n ______________________\n\n DUNCAN PARKING TECHNOLOGIES, INC.,\n Appellant\n\n v.\n\n IPS GROUP, INC.,\n Appellee\n ______________________\n\n 2018-1205\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2016-\n00067.\n\n --------------------------------------------------\n\n IPS GROUP, INC.,\n Plaintiff-Appellant\n\n v.\n\n DUNCAN SOLUTIONS INC., DUNCAN PARKING\n TECHNOLOGIES, INC., CIVICSMART, INC.,\n Defendants-Appellees\n ______________________\n\n 2018-1360\n ______________________\n\f2 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n Appeal from the United States District Court for the\nSouthern District of California in No. 3:15-cv-01526-CAB-\nMDD, Judge Cathy Ann Bencivengo.\n\n ______________________\n\n Decided: January 31, 2019\n ______________________\n\n STUART ALAN RAPHAEL, Hunton Andrews Kurth LLP,\nWashington, DC, argued for appellant in 2018-1205. Also\nrepresented by DANIEL GEORGE VIVARELLI, JR., STEVEN\nLESLIE WOOD.\n\n RICHARD TORCZON, Wilson, Sonsini, Goodrich &\nRosati, PC, Washington, DC, argued for appellee in 2018-\n1205. Also represented by MATTHEW A. ARGENTI, Palo\nAlto, CA; DOUGLAS H. CARSTEN, San Diego, CA; MICHAEL\nT. ROSATO, Seattle, WA.\n\n DOUGLAS H. CARSTEN, Wilson, Sonsini, Goodrich &\nRosati, PC, San Diego, CA, argued for plaintiff-appellant\nin 2018-1360. Also represented by NATHANIEL RYAN\nSCHARN, JAMES PATRICK HEALY STEPHENS; ADAM WILLIAM\nBURROWBRIDGE, Washington, DC; CHRISTOPHER D. MAYS,\nPalo Alto, CA.\n\n JOSHUA M. KALB, Hunton Andrews Kurth LLP, Atlan-\nta, GA, argued for defendants-appellees in 2018-1360.\nAlso represented by DANIEL GEORGE VIVARELLI, JR.,\nSTUART ALAN RAPHAEL, Washington, DC.\n ______________________\n\n Before LOURIE, DYK, and TARANTO, Circuit Judges.\nLOURIE, Circuit Judge.\n IPS Group Inc. (“IPS”) appeals from two decisions of\nthe United States District Court for the Southern District\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 3\n\n\n\nof California granting summary judgment of nonin-\nfringement of U.S. Patents 8,595,054 (“the ’054 patent”)—\nIPS Grp., Inc. v. Duncan Sols., Inc., No. 15-CV-1526-CAB-\n(MDD), 2017 WL 5973337 (S.D. Cal. Dec. 1, 2017) (“’054\nDecision”)—and 7,854,310 (“the ’310 patent”)—IPS Grp.,\nInc. v. Duncan Sols., Inc., No. 15-CV-1526-CAB-(MDD),\n2017 WL 3530968 (S.D. Cal. Aug. 16, 2017) (“’310 Deci-\nsion”) (collectively, the “1360 Appeal”).\n Duncan Parking Technologies Inc. (“DPT”) appeals\nfrom a related decision of the Patent Trial and Appeal\nBoard (“the Board”), Duncan Parking Techs., Inc. v. IPS\nGrp., Inc., No. IPR2016-00067, Paper 29 (P.T.A.B. Mar.\n27, 2017) (“Board Decision”), modified on reh’g, Paper 37\n(P.T.A.B. Aug. 18, 2017) (“Rehearing Decision”), in an\ninter partes review holding that claims 1–5 and 7–10 of\nthe ’310 patent were not shown to be unpatentable as\nanticipated under 35 U.S.C. § 102(e) (the “1205 Appeal”).\nWe address these appeals together in this combined\nopinion.\n We reverse the Board’s decision in the 1205 Appeal\nthat claims 1–5 and 7–10 of the ’310 patent are not un-\npatentable as anticipated. We affirm the district court’s\ndecision in the 1360 Appeal granting summary judgment\nof noninfringement of the ’310 patent. Finally, we vacate\nthe district court’s decision in the 1360 Appeal granting\nsummary judgment of noninfringement of the ’054 patent\nbecause the district court erred in construing the claims\ntoo narrowly, and we remand the case to the district court\nfor further proceedings consistent with the claim con-\nstruction we set forth.\n I. BACKGROUND\n A.\n IPS designs parking meter technology. It is run by\nfounder and CEO Dave King and Chief Technical Officer\nAlexander Schwarz. Both are electrical engineers by\n\f4 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ntraining. The company manufactured multi-space park-\ning meters from its founding in 1994 until it changed its\nfocus to cellular phone technology around 2000. Accord-\ning to King, he conceived the idea for a credit-card ena-\nbled, solar-powered, single-space parking meter in May\n2003, when he had trouble finding change to pay for a\nparking meter in Newport Beach, California. IPS began\nwork on the project shortly thereafter, and King consulted\nwith Schwarz as he developed his idea. Eventually, King\ndecided that IPS could gain greater market access by\noffering a retrofit device that replaces the internal com-\nponents of an existing parking meter, rather than a costly\nreplacement of the entire meter.\n King identified “two big hurdles” to developing IPS’s\nsingle-space parking technology: (1) designing a device\nwith all of the requisite components that could easily\nretrofit existing parking meter housings and (2) integrat-\ning the electronic components and designing software and\na controller to coordinate the electrical system. J.A.\n1336. 1 To assist with the first challenge, IPS engaged a\ndesign firm, D+I, in November 2004 and provided it with\na list of desired components and functionalities that King\npurportedly conceived, including a credit card reader, a\nsolar panel, and a switch pad, among others.\n King assigned Schwarz responsibility for “figuring out\nhow to implement the electronics.” J.A. 1337. According\nto King, “[Schwarz’s] inventive contribution [was] limited\nto conception and development of how the various electri-\ncal components of the meter are interconnected and\n\n\n 1 Because we decide two appeals in this opinion,\nthere are two sets of briefs and two sets of joint appen-\ndices. All citations in the 1360 Appeal section refer to the\nbriefs and joint appendices of the 1360 Appeal, while all\nprevious citations, including those in the background\nsection, refer to those of the 1205 Appeal.\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 5\n\n\n\noperate together.” J.A. 1345. Schwarz sourced the elec-\ntronic components, and generally took responsibility for\nsolving electronics obstacles. In July 2005, Schwarz\ncompiled a list of electrical components to be included in\nthe device, along with product specifications for many of\nthem, and drew a block diagram conceptualizing the\nelectrical connections between the components. A slightly\nmodified version of that block diagram was later disclosed\nin the ’054 patent as Figure 8, illustrating “[t]he various\nelectrical and other components of the parking meter\ndevice.” ’054 patent col. 4 ll. 15–16.\n B.\n The ’310 and ’054 patents are similar but do not have\nthe same specifications. The ’054 patent issued in 2013\nfrom a PCT application filed on December 4, 2006, nam-\ning King and Schwarz as inventors. It claims a credit\ncard-enabled, solar-powered, single-space parking meter\ndevice that can be used to retrofit the internal compo-\nnents of existing parking meters. Claim 1 is the sole\nindependent claim and is representative:\n 1. A parking meter device that is receivable with-\n in a housing base of a single space parking meter,\n the parking meter device including:\n a timer;\n a payment facilitating arrangement operable in\n cooperation with a non-cash payment medium for\n effecting payment of a monetary amount for a\n parking period;\n a display configured to visually provide a balance\n remaining of the parking period;\n a power management facility that supplies power\n to the timer, payment facilitating arrangement,\n and display;\n\f6 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n a wireless communications subsystem configured\n to receive information relating to the non-cash\n payment medium in respect of the payment facili-\n tating arrangement;\n a keypad sensor that receives input comprising\n manipulation by the user;\n a coin slot into which coins are inserted for deliv-\n ery to the coin sensor and then to a coin recepta-\n cle; and\n a lower portion and an upper portion;\n wherein the keypad sensor operates the parking-\n meter and determines parking time amount for\n purchase in accordance with the received input\n from the user;\n wherein the display provides the amount of time\n purchased in response to the received input from\n the user;\n wherein the upper portion of the parking meter\n device includes a solar panel that charges the\n power management facility;\n wherein the lower portion of the parking meter\n device is configured to have a shape and dimen-\n sions such that the lower portion is receivable\n within the housing base of the single space parking\n meter; and\n wherein the upper portion of the parking meter\n device is covered by a cover that is configured to\n accommodate the upper portion and that is en-\n gageable with the housing base of the single space\n parking meter such that the payment facilitating\n arrangement is accessible by the user for user\n manipulation effecting the payment of the mone-\n tary amount for the parking period when the low-\n er portion of the parking meter device is received\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 7\n\n\n\n within the housing base and the upper portion is\n covered by the cover.\n’054 patent col. 5 l. 43–col. 6 l. 17 (emphasis added).\n The ’310 patent issued in 2010 from an application\nfiled on February 27, 2008, more than a year after the\n’054 patent’s application had been filed, naming as inven-\ntors King and three engineers from D+I, Murray Hunter,\nMathew Hall, and David Jones. It claims a credit card-\nenabled, solar-powered, single-space parking meter.\nClaim 9 is exemplary:\n 9. A parking meter comprising:\n a housing comprising an intermediate panel set\n and a cover panel, the cover panel being movably\n attached to the intermediate panel set, wherein a\n first surface of the cover panel and a first surface\n of the intermediate panel set comprise a parking\n meter front face, the first surface of the cover panel\n having a first window and a plurality of buttons\n that operate the parking meter upon manipulation\n by a user, wherein a second surface of the cover\n panel and a second surface of the intermediate\n panel set comprise a parking meter rear face, the\n rear face surface of the cover panel providing a\n second window;\n a module configured to be removably received by\n the housing, the module comprising\n (a) a coin sensor,\n (b) a card reader, and\n (c) an electronic device electrically connect-\n ed to the sensor and the reader so as to re-\n ceive information electronically therefrom,\n the electronic device comprising\n\f8 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n (i) a screen to provide information\n visually via the first window when\n the cover panel is attached to the\n intermediate panel set,\n (ii) a telephone connection to pro-\n vide receiving information in re-\n spect of the card reader,\n (iii) a rechargeable battery electri-\n cally coupled to provide power to\n the reader, the sensor, and the elec-\n tronic device, and\n (iv) a solar cell operatively coupled\n with the rechargeable battery to\n charge the rechargeable batter[y],\n the solar cell being disposed to re-\n ceive light via the second window;\n a coin slot in the parking meter front face into\n which coins are inserted for delivery to the coin\n sensor and then to a coin receptacle; and\n a card slot in the parking meter front face into\n which a card is inserted to be read by the reader;\n wherein the coin sensor and the card reader are\n electrically linked to provide information to the\n electronic device to provide information of wheth-\n er payment has been made.\n’310 patent col. 4 l. 36–col. 5 l. 8 (emphases added).\n The patents disclose closely related preferred embod-\niments based on the prototype D+I created for IPS.\nFigure 4 of the ’310 patent is illustrative; it shows the\nfront view of the parking meter, with the cover panel (16)\npivoted to an open position:\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 9\n\n\n\n\n Figure 7 of the ’054 patent shows the parking meter\ndevice alongside the empty housing, with the cover panel\n(36) again in the open position:\n\n\n\n\n Figure 8 of the ’054 patent shows the block diagram of\nthe preferred embodiment’s electrical components, which\nare described from col. 4 l. 15–col. 5 l. 8:\n\f10 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n C.\n In July 2015, IPS filed a complaint against DPT in the\nSouthern District of California asserting infringement of\nthe ’054 and ’310 patents. The district court in August\n2017 granted DPT’s motion for summary judgment that\nDPT’s accused product, the Liberty® Single-Space Meter\n(“the Liberty Meter”), does not infringe claims 1–9 or\nclaim 11 of the ’310 patent because the Liberty Meter’s\ncover panel does not include a “plurality of buttons,” as is\nrequired by the ’310 patent claims. ’310 Decision at 9.\nInstead, the Liberty Meter has a keypad that is part of\nthe parking meter device itself, which protrudes through\nan opening in the housing. The court construed “cover\npanel” in the ’310 patent claims as the “upper structural\ncomponent of the exterior casing,” id. at 8, and thus held\nthat the Liberty Meter does not infringe, literally or under\nthe doctrine of equivalents, any claim of the ’310 patent.\nId. at 10–11. The Liberty Meter is depicted below:\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 11\n\n\n\n\nJ.A. 23.\n In December 2017, the district court further held that\nthe Liberty Meter does not infringe any claim of the ’054\npatent. The claims require the “lower portion of the\nparking meter device [be] configured to have a shape and\ndimensions such that the lower portion is receivable\nwithin the housing base of the single space parking me-\nter.” ’054 patent col. 6 ll. 4–7. The court construed “re-\nceivable within” as “capable of being contained inside,”\nand applied this construction to require that the “entire\nlower portion” of the infringing product be “receivable\nwithin the housing base.” ’054 Decision at 8. The district\ncourt granted summary judgment of noninfringement\nbecause it found that the Liberty Meter’s keypad extends\nthrough an opening in the lower portion of the housing\nand, as a result, the lower portion of the Liberty Meter’s\ndevice is not “receivable within” its housing base. Id.\n Meanwhile, shortly after IPS filed its complaint, DPT\npetitioned in the U.S. Patent and Trademark Office for\ninter partes review of claims 1–5 and 7–10 of the ’310\npatent. The Board instituted a review on the ground that\nthe ’054 patent anticipates the ’310 patent under\n35 U.S.C. § 102(e). After institution, IPS chose not to\n\f12 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ndispute whether, on the merits, the ’054 patent antici-\npates the ’310 patent claims. IPS instead argued in its\nPatent Owner Response that the anticipating portions of\nthe ’054 patent are solely King’s invention, not that “of\nanother” under 35 U.S.C. § 102(e), and therefore cannot\nbe applied as prior art against the ’310 patent claims. To\nsupport its argument that King alone conceived the\nrelevant disclosure, IPS submitted declarations from\nKing, Schwarz, and David Jones—an engineer from D+I\nand a named inventor of the ’310 patent—along with\ncontemporaneous documents reflecting the invention’s\ndevelopment from 2003 to 2005. In the Petitioner’s Reply,\nDPT argued that the ’054 patent is prior art because\nSchwarz conceived at least a portion of the ’054 patent’s\nanticipating disclosure.\n The Board held that, while Schwarz “contributed to\nthe creation of at least some aspects of the block diagram\nof Figure 8 . . . [the Board was] skeptical that the general\nrecitation in claims 1 and 9 of connections and operative\nassociations of components constitutes more than what\nMr. King broadly envisioned.” Board Decision at 9–10.\nThe Board also found that, in order to account for certain\nclaim limitations, DPT’s anticipation argument “relie[d]\non content of [the ’054 patent] that is outside of any\ndepiction or description associated with Figure 8,” which\nwas indisputably the work of King alone. Id. at 10. The\nBoard ultimately held that King was the sole inventor of\nthe anticipating disclosure of the ’054 patent, id. at 14,\nand thus claims 1–5 and 7–10 were held not unpatentable\nas anticipated by the ’054 patent. 2\n\n\n\n 2 The Board found that King was the sole inventor\nof all of the limitations of claims 1–5, 7, and 9, Board\nDecision at 14; that King, Hunter, Hall, and Jones (the\n’310 patent inventors) jointly invented the limitations of\nclaims 8 and 10, id. at 15; and that King and Schwarz\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 13\n\n\n\n DPT timely appealed from the Board’s decision, and\nIPS timely appealed from the district court’s summary\njudgments of noninfringement. We have jurisdiction over\nboth appeals under 28 U.S.C. §§ 1295(a)(1), (a)(4)(A). We\nfirst address the Board’s decision.\n II. DISCUSSION\n A. The 1205 Appeal\n We review the Board’s legal determinations de novo,\nIn re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), but we\nreview the Board’s factual findings underlying those\ndeterminations for substantial evidence, In re Gartside,\n203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding is sup-\nported by substantial evidence if a reasonable mind might\naccept the evidence as adequate to support the finding.\nConsol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).\nAnticipation is a question of fact. In re Gleave, 560 F.3d\n1331, 1334–35 (Fed. Cir. 2009). Inventorship is a ques-\ntion of law based on underlying findings of fact, Gen. Elec.\nCo. v. Wilkins, 750 F.3d 1324, 1329 (Fed. Cir. 2014),\nwhich we review for substantial evidence.\n DPT argues in the 1205 Appeal that Schwarz is a\njoint inventor of the relevant portions of the ’054 patent\nbecause he conceived the electrical system depicted in\nFigure 8. Thus, DPT contends that the ’310 patent claims\nare anticipated by the ’054 patent. In addition, DPT\nargues that the Board abused its discretion by denying\nDPT’s motion for additional discovery, under\n\n\n\n\nderived the subject matter in the ’054 patent which dis-\ncloses the limitations of claims 8 and 10 from King,\nHunter, Hall and Jones, removing that subject matter as\nprior art under § 102(e), Rehearing Decision at 6. DPT\ndoes not dispute the inventorship of Hunter, Hall, and\nJones on appeal. Appellant’s Reply Br. 8.\n\f14 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n37 C.F.R. § 42.51(b)(2), of documents that concern the\ninvention of the relevant portions of the ’054 patent.\n IPS responds that Schwarz’s drawing the block dia-\ngram does not mean that he conceived the relevant elec-\ntronics, and that “Schwarz’s conception of aspects of\nFigure 8 not recited in the ’310 claims is irrelevant.”\nAppellee Br. 33. IPS further argues that the fact that\n“King communicated his idea in terms of the ‘general’\nconnectivity of certain components does not matter since\nthat merely reflects the connectivity of those components\nas recited in the ’310 claims.” Appellee Br. 37. IPS does\nnot dispute the Board’s finding that the ’054 patent would\nanticipate the ’310 patent claims if it were prior art.\nBoard Decision at 6.\n We agree with DPT that the ’054 patent anticipates\nthe challenged claims of the ’310 patent. The Board\nclearly erred in concluding otherwise. A patent is antici-\npated under 35 U.S.C. § 102(e) if “the invention was\ndescribed in . . . a patent granted on an application for\npatent by another filed in the United States before the\ninvention by the applicant for patent” (emphasis added). 3\n“The statute’s reference to ‘by another’ means that an\napplication issued to the same inventive entity cannot\nqualify as § 102(e) prior art.” EmeraChem Holdings, LLC\nv. Volkswagen Grp. of Am., Inc., 859 F.3d 1341, 1345 (Fed.\nCir. 2017) (citing Riverwood Int’l Corp. v. R.A. Jones &\nCo., 324 F.3d 1346, 1355–56 (Fed. Cir. 2003)).\n\n\n\n\n 3 The ’310 patent was filed in 2006 and issued in\n2010, so pre-AIA § 102(e) applies. See Leahy–Smith\nAmerica Invents Act, Pub. L. No. 112–29, sec. 3(c), 125\nStat. 284, 293 (2011) (explaining that the pre-AIA version\nof the Patent Act generally applies to patents with effec-\ntive filing dates before March 16, 2013).\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 15\n\n\n\n We must review here whether the Board erred in con-\ncluding that the applied portions of the ’054 patent were\ninvented by King alone and not by King and Schwarz\njointly. See In re DeBaun, 687 F.2d 459, 463 (CCPA\n1982). If Schwarz is a joint inventor of the anticipating\ndisclosure, then it is “by another” for the purposes of §\n102(e). In re Land, 368 F.2d 866, 879 (CCPA 1966) (“[A]n\ninvention made jointly by A & B cannot be the sole inven-\ntion of A or B . . . .”). To be a joint inventor, one must:\n (1) contribute in some significant manner to the\n conception or reduction to practice of the inven-\n tion, (2) make a contribution to the claimed inven-\n tion that is not insignificant in quality, when that\n contribution is measured against the dimension of\n the full invention, and (3) do more than merely\n explain to the real inventors well-known concepts\n and/or the current state of the art.\nIn re VerHoef, 888 F.3d 1362, 1366 (Fed. Cir. 2018) (quot-\ning Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed. Cir.\n1998)). “The law of inventorship does not hinge co-\ninventorship status on whether a person contributed to\nthe conception of all of the limitations in any one claim of\nthe patent. Rather, the law requires only that a co-\ninventor make a contribution to the conception of the\nsubject matter of the claim.” Eli Lilly & Co. v. Aradigm\nCorp., 376 F.3d 1352, 1361–62 (Fed. Cir. 2004); see Fina\nOil & Chem. Co. v. Ewen, 123 F.3d 1466, 1474 (Fed. Cir.\n1997).\n Thus, to decide whether a reference patent is “by an-\nother” for the purposes of 35 U.S.C. § 102(e), the Board\nmust (1) determine what portions of the reference patent\nwere relied on as prior art to anticipate the claim limita-\ntions at issue, (2) evaluate the degree to which those\nportions were conceived “by another,” and (3) decide\nwhether that other person’s contribution is significant\nenough, when measured against the full anticipating\n\f16 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ndisclosure, to render him a joint inventor of the applied\nportions of the reference patent. We conclude that the\nBoard erred in not holding that King and Schwarz are\njoint inventors of the anticipating disclosure.\n As is clear from DPT’s Petition, J.A. 84–100, as well\nas the Institution Decision, Duncan Parking Techs., Inc.\nv. IPS Grp., Inc., No. IPR2016-00067, 2016 WL 5679596,\nPaper 9 (P.T.A.B. Mar. 30, 2016), DPT relied on the ’054\npatent’s disclosure of a specific parking meter device,\ndepicted in the figures and described in detail in the\nspecification. See, e.g., ’054 patent col. 3 ll. 9–10 (“The\ninvention is now described, by way of a non-limiting\nexample, with reference to the accompanying drawings . .\n. .”); id. col. 4 ll. 15–34. As noted above, IPS does not\ndispute that the ’054 patent’s embodiment discloses all of\nthe limitations of the ’310 patent claims at issue. On\nappeal, DPT relies on Figure 8, a block diagram depicting\nthe embodiment’s electrical system, as anticipatory prior\nart “by another” disclosing the electrical connections and\ncomponents claimed in the ’310 patent. See, e.g., Appel-\nlant Br. 19–21 (comparing the electrical connections and\ncomponents recited in claims 1 and 9 with the disclosure\nin Figure 8); ’054 patent col. 4 ll. 15–34 (“The various\nelectrical and other components of the parking meter\ndevice 10 are indicated in FIG. 8. . . . [T]here is a power\nmanagement facility 46 . . . . The controller 52 controls\noperation of the meter. An integrated device is used . . . .”\n(emphases added)).\n In particular, Figure 8 discloses each of the electrical\ncomponents claimed in the ’310 patent, along with a\ndetailed diagram showing how each component is con-\nnected. The electrical system limitations of the ’310\npatent claims require such connections and operability.\nClaim 9 recites “[a]n electronic device electrically connect-\ned to the sensor and the reader” along with “a rechargea-\nble battery electrically coupled to provide power to the\nreader, the sensor, and the electronic device” and “a solar\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 17\n\n\n\ncell operatively coupled with the rechargeable battery to\ncharge the rechargeable batter[y].” Claim 1 similarly\nrecites “[a]n electronic device electrically connected to the\nsensor and reader” and “connections for at least one\nrechargeable battery to power the reader, sensor, and\ndevice” along with a “solar cell operatively associated with\nsaid connections to charge said battery.” The ’310 patent\nclaims are clear on their face that they require electronic\nconnections and components disclosed by Figure 8 in the\n’054 patent. Because the ’310 patent claims clearly in-\nclude elements previously disclosed in Figure 8, the\nquestion is whether Schwarz conceived those elements as\nthey were disclosed in the ’054 patent. Cf. In re Carreira,\n532 F.2d 1356, 1358–59 (CCPA 1976) (holding that a\nreference patentees’ declaration that they did not invent\nthe claimed method is insufficient to remove the reference\npatent as § 102(e) prior art because “the declarants could\nbe the inventors of the species disclosed in their patents,\nbut at the same time never have conceived of the general\nor generic use [claimed in the patent at issue]”).\n It is clear that Schwarz conceived much of the ’054\npatent’s electrical system, including designing the dia-\ngram showing how all the electronic components are\nconnected. See Board Decision at 9. Schwarz invented\n“how the various electrical components of the meter are\ninterconnected and operate together.” J.A. 1345.\nSchwarz’s block diagram, depicted in Figure 8, organizes\n26 separate electrical components and specific electrical\nconnections between them. ’054 patent Fig. 8; J.A. 1390.\nThe record shows that Schwarz conceived many of these\ndetails. See, e.g., J.A. 1517 (“I came up with the [idea]\nthat there needs to be a power management block next to\nthe central controller that controls the power and how to\nactually connect that in detail.”); J.A. 1381–82 (communi-\ncating product specifications and electrical requirements\nof the solar panel, card reader, display, antenna, and\nbattery to King); J.A. 1391–92 (directing procurement and\n\f18 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ndesign of all sourced electrical components); J.A. 1533\n(noting he conceived of ideas to connect the solar panels to\nrecharge the battery).\n Schwarz’s contribution to the invention defined by the\n’310 patent claims, as disclosed in the ’054 patent, was\nsignificant in light of the invention as a whole. While IPS\nargues that Schwarz’s role consisted of “drawing a sche-\nmatic,” Appellee Br. 33, the record shows that creating\nthe block diagram was not a minor task. Schwarz had to\ncoordinate with D+I as they designed a device that could\nphysically fit within an existing parking meter housing.\nSee J.A. 1376–77 (telling D+I that “determin[ing] a wiring\nschematic . . . [will] be easier once we have some compo-\nnents and can lay them out – [it will] give me a better\nidea”). As a result of Schwarz’s contribution, the ’054\npatent discloses a parking meter device with a detailed\nelectrical system, a challenge King described as one of\n“two big hurdles” to the invention, J.A. 1336. Thus,\nSchwarz’s contribution, measured against the dimension\nof the full invention, was significant.\n Further, the ’054 patent’s parking meter device, its\nsole embodiment, contains the specific electrical system\ndisclosed in Figure 8. As the Board found, Board Decision\nat 9–10, Schwarz conceived, at the very least, some as-\npects of that electrical system which are required by the\nelectrical system limitations of the ’310 patent claims.\nThe record indicates that these aspects of the electrical\nsystem were a significant contribution to the invention\nclaimed in the ’310 patent. Thus, the anticipating embod-\niment was the joint invention of King and Schwarz, an\ninventive entity different from that of the ’310 patent, and\nthe ’054 patent is prior art under 35 U.S.C. § 102(e).\nSince IPS does not dispute the Board’s finding that this\nembodiment discloses every limitation of claims 1–5 and\n7–10, id. at 6, we hold those claims of the ’310 patent\nunpatentable as anticipated. We therefore need not\naddress the discovery dispute concerning them.\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 19\n\n\n\n B. The 1360 Appeal\n We review a district court’s grant of summary judg-\nment according to the law of the regional circuit. Kaneka\nCorp. v. Xiamen Kingdomway Grp. Co., 790 F.3d 1298,\n1303 (Fed. Cir. 2015) (citing Halo Elecs., Inc. v. Pulse\nElecs., Inc., 769 F.3d 1371, 1377 (Fed. Cir. 2014)). In the\nNinth Circuit, summary judgment is reviewed de novo,\nBrunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th\nCir. 2017) (citing Ctr. for Bio-Ethical Reform, Inc. v. L.A.\nCty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)), and\nis appropriate when, viewing the evidence in favor of the\nnon-movant, there is no genuine dispute as to any mate-\nrial fact, Zetwick v. Cty. of Yolo, 850 F.3d 436, 440 (9th\nCir. 2017).\n While infringement is a question of fact, Lucent\nTechs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1309 (Fed.\nCir. 2009), we review de novo the district court’s grant of\nsummary judgment of noninfringement, Innogenetics,\nN.V. v. Abbott Labs., 512 F.3d 1363, 1378 (Fed. Cir. 2008).\n“An infringement analysis entails two steps. The first\nstep is determining the meaning and scope of the patent\nclaims asserted to be infringed. The second step is com-\nparing the properly construed claims to the device ac-\ncused of infringing.” Markman v. Westview Instruments,\nInc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc) (citations\nomitted), aff’d, 517 U.S. 370 (1996).\n “To establish literal infringement, every limitation set\nforth in a claim must be found in an accused product,\nexactly.” Southwall Techs., Inc. v. Cardinal IG Co., 54\nF.3d 1570, 1575 (Fed. Cir. 1995). The patentee has the\nburden of proving infringement by a preponderance of the\nevidence. SmithKline Diagnostics, Inc. v. Helena Labs.\nCorp., 859 F.2d 878, 889 (Fed. Cir. 1988). Claim construc-\ntion is ultimately an issue of law, which we review de\nnovo. Shire Dev., LLC v. Watson Pharm., Inc., 787 F.3d\n1359, 1364 (Fed. Cir. 2015). We review de novo the dis-\n\f20 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ntrict court’s findings of fact on evidence “intrinsic to the\npatent (the patent claims and specification[], along with\nthe patent’s prosecution history),” and review for clear\nerror all other findings of fact subsidiary to the district\ncourt’s claim construction. Teva Pharm. USA, Inc. v.\nSandoz, Inc., 135 S. Ct. 831, 841 (2015).\n 1. The ’310 Patent\n IPS asserted claims 1–9 and 11 of the ’310 patent in\nthe district court. ’310 Decision at 2. These claims are\nnot coextensive with the claims DPT challenged in its\npetition for IPR, claims 1–5 and 7–10, Board Decision at\n1, which makes it necessary for us to consider IPS’s\ninfringement arguments relating to claims 6 and 11\ndespite our holding claims 1–5 and 7–10 unpatentable.\nBecause we affirm the district court’s grant of summary\njudgment of noninfringement of claims 1 and 9, the only\nindependent claims of the ’310 patent, we need not sepa-\nrately address the additional limitations of the remaining\ndependent claims 6 and 11, which IPS has not specifically\nargued. See Wahpeton Canvas Co. v. Frontier, Inc., 870\nF.2d 1546, 1552 n.9 (Fed. Cir. 1989) (“One who does not\ninfringe an independent claim cannot infringe a claim\ndependent on (and thus containing all the limitations of)\nthat claim.” (citing Teledyne McCormick Selph v. United\nStates, 558 F.2d 1000, 1004 (Ct. Cl. 1977))). We therefore\nwill only review the infringement arguments relating to\nclaim 9, which IPS has indicated is exemplary.\n IPS argues in the 1360 Appeal that the district court\nshould not have granted summary judgment of nonin-\nfringement of the ’310 patent because the Liberty Meter\ninfringes claim 9 either literally or through the doctrine of\nequivalents. The essence of IPS’s argument for literal\ninfringement is that the district court applied its con-\nstruction of the term “cover panel” as “the upper structur-\nal component of the exterior casing” too narrowly, relying\non the preferred embodiment and the figures to limit the\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 21\n\n\n\nscope of the claimed invention to a cover panel that\nswings open, as in Figure 4. Specifically, IPS argues that\nthe Liberty Meter’s keypad, a part of the device itself that\nextends through an opening in the housing base, meets\nthe limitation of a “cover panel movably attached to the\nintermediate panel set . . . [with] a plurality of buttons”\nbecause it is “slidably attached” to the housing, which the\n’310 patent specification discloses as an alternative cover\npanel mechanism. ’310 patent col. 2 ll. 49–50.\n DPT responds that the ’310 patent discloses the cover\npanel as a singular component, not as a collection of\ncomponents, and as a part of the housing, not the internal\ndevice as in the Liberty Meter. DPT also argues that the\nLiberty Meter’s keypad is not “attached” to the intermedi-\nate panel set but is instead merely in contact with its\noutside surface. Appellee Br. 37 (analogizing the Liberty\nMeter keypad’s sliding over the surface of the housing to a\ngolf ball on a tee).\n We are unpersuaded by IPS’s arguments. The Liberty\nMeter’s keypad is an extension of its device, and constru-\ning part of the device as the cover panel is inconsistent\nwith the claims of the ’310 patent. See ’310 patent col. 4 l.\n36–col. 5 l. 3 (defining “a housing comprising . . . a cover\npanel” in contradistinction to the module “removably\nreceived by the housing” as well as the coin slot); see\ngenerally id. col. 3 l. 45–col. 4 l. 4, col. 4 l. 36–col. 5 l. 5.\nThe specification is equally clear that the cover panel is a\npart of the housing and does not include the device. See\nid. col. 2 ll. 66–67 (“The panel set 15 and cover panel 16\nprovide a housing 31 within which a module 32 is locat-\ned.”). DPT is also correct that the cover panel is described\nas a singular component. See, e.g., id. col. 2 ll. 44–49\n(“The cover panel 16 is pivotally attached to the panel set\n. . . . In an alternative form, the panel 16 may be slidably\nattached.” (emphases added)).\n\f22 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n Nor is the Liberty Meter’s keypad “attached” to an in-\ntermediate panel set, as required by the ’310 patent\nclaims, simply by virtue of making contact with its hous-\ning. The word “attach” is never used in so broad a sense\nin the ’310 patent. See, e.g., ’310 patent col. 2 ll. 28, 30,\n44, 50. IPS has not presented any argument that a per-\nson of skill in the art would understand the term more\nbroadly than its ordinary meaning of “to fasten or join.”\nAttach, The New Oxford American Dictionary (2d ed.\n2005). Accordingly, there is no genuine dispute that the\nLiberty Meter does not meet the limitation of a “cover\npanel movably attached to the intermediate panel set . . .\n[with] a plurality of buttons,” and the district court there-\nfore did not err by granting summary judgment of nonin-\nfringement of the ’310 patent claims.\n IPS argues in the alternative that the Liberty Meter\ninfringes under the doctrine of equivalents because its\nkeypad performs substantially the same function as the\ncover panel buttons of the claimed parking meter, in the\nsame way, to achieve the same result. The keypad oper-\nates the parking meter, as in the claimed invention, by\nusing buttons to allow the user to purchase time and\nprocess credit card transactions. According to IPS, chang-\ning the location of the buttons from the cover panel to the\ndevice itself is an insubstantial change, and thus the case\nshould not have been resolved on summary judgment.\nSee Brilliant Instruments, Inc. v. GuideTech, LLC, 707\nF.3d 1342, 1348 (Fed. Cir. 2013) (finding that an alleged\ndifference in location of a structural claim limitation is a\ngenuine dispute of material fact).\n DPT contends that finding the Liberty Meter to be an\nequivalent, as sought by IPS, would vitiate the claim\nlimitation requiring buttons to be located on the cover\npanel, which is a part of the housing, not the device.\nConsequently, the Liberty Meter’s keypad does not work\nin the “same way” as required by the doctrine of equiva-\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 23\n\n\n\nlents. DPT argues that summary judgment was therefore\nappropriate.\n We agree with DPT that the Liberty Meter’s keypad\ndoes not work in the same way as the claimed invention.\nUnder the doctrine of equivalents, a product or process\nthat does not literally infringe a patent claim may never-\ntheless be held to infringe “if it performs substantially the\nsame function in substantially the same way to obtain the\nsame result.” Graver Tank & Mfg. Co. v. Linde Air Prods.\nCo., 339 U.S. 605, 608 (1950) (quoting Sanitary Refrigera-\ntor Co. v. Winters, 280 U.S. 30, 42 (1929)). But the doc-\ntrine of equivalents cannot be used to effectively read out\na claim limitation, Primos, Inc. v. Hunter’s Specialties,\nInc., 451 F.3d 841, 850 (Fed. Cir. 2006), because the\npublic has a right to rely on the language of patent claims.\nSee London v. Carson Pirie Scott & Co., 946 F.2d 1534,\n1538 (Fed. Cir. 1991) (“[I]f the public comes to believe (or\nfear) that the language of patent claims can never be\nrelied on, and that the doctrine of equivalents is simply\nthe second prong of every infringement charge, regularly\navailable to extend protection beyond the scope of the\nclaims, then claims will cease to serve their intended\npurpose.”).\n The ’310 patent claims fundamentally distinguish the\nhousing from the device. See, e.g., ’310 patent col. 4 ll. 37,\n47. Holding that the Liberty Meter infringes the ’310\npatent claims under the doctrine of equivalents would\nessentially void the claim limitation of a “housing [with] a\ncover panel being movably attached to the intermediate\npanel set [and with] a plurality of buttons.” We have\nconsistently held that the doctrine of equivalents does not\nextend so broadly. See, e.g., Conopco, Inc. v. May Dep’t\nStores Co., 46 F.3d 1556, 1562 (Fed. Cir. 1994) (“The\ndoctrine of equivalents cannot be used to erase ‘meaning-\nful structural and functional limitations of the claim on\nwhich the public is entitled to rely in avoiding infringe-\nment.’” (quoting Pennwalt Corp. v. Durand-Wayland, Inc.,\n\f24 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n833 F.2d 931, 935 (Fed. Cir. 1987))); Freedman Seating\nCo. v. Am. Seating Co., 420 F.3d 1350, 1361 (Fed. Cir.\n2005) (holding that a rotatably mounted stowable seat\nwas not equivalent to the claimed slidably mounted\nstowable seat because it was a “structural difference” that\nconstituted a “clear, substantial difference or difference in\nkind”).\n The district court correctly found that IPS’s doctrine\nof equivalents argument required vitiating a claim limita-\ntion. ’310 Decision at 10. Allowing IPS to greatly expand\nthe scope of the ’310 patent claims, to cover a parking\nmeter with buttons located nearly anywhere on the out-\nside of the meter, would disserve members of the public\nwho seek to avoid infringing those claims. See London,\n946 F.2d at 1538. Thus, the district court did not err by\ngranting summary judgment of noninfringement. Warn-\ner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17,\n39 n.8 (1997) (“[I]f a theory of equivalence would entirely\nvitiate a particular claim element, partial or complete\njudgment should be rendered by the court, as there would\nbe no further material issue for the jury to resolve.”\n(emphasis omitted)).\n The parties also argue at length about whether prose-\ncution history estoppel bars IPS’s doctrine of equivalents\nargument. We find it unnecessary to address this dispute\nbecause we agree with the district court that the Liberty\nMeter is simply not an equivalent to the ’310 patent\nclaims.\n IPS further maintains that the district court resolved\ndisputed issues of fact over its expert Dr. Rosing’s testi-\nmony, but “[w]here the parties do not dispute any rele-\nvant facts regarding the accused product . . . but disagree\nover possible claim interpretations, the question of literal\ninfringement collapses into claim construction and is\namenable to summary judgment.” See Gen. Mills, Inc. v.\nHunt–Wesson, Inc., 103 F.3d 978, 983 (Fed. Cir. 1997).\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 25\n\n\n\nHere, Dr. Rosing’s opinion that the Liberty Meter’s key-\npad may comprise a portion of the cover panel is clearly\nforeclosed by the district court’s claim construction. In\nsuch a situation, the district court is not obligated to\ncredit an expert’s testimony. See TechSearch, L.L.C. v.\nIntel Corp., 286 F.3d 1360, 1372 (Fed. Cir. 2002) (holding\nthat unsupported expert testimony is “insufficient to\navoid summary judgment where the moving party has\nmet its initial burden”). We discern no error in the dis-\ntrict court’s consideration of Dr. Rosing’s report.\n We have considered IPS’s other arguments but do not\nfind them persuasive. We therefore affirm the district\ncourt’s grant of summary judgment of noninfringement of\nclaims 1–9 and 11 of the ’310 patent.\n 2. The ’054 Patent\n IPS also contends in the 1360 Appeal that the district\ncourt’s grant of summary judgment of noninfringement of\nthe ’054 patent was erroneous. Its arguments pertain\nessentially to claim construction. IPS argues that the\ndistrict court construed the term “receivable within,” in\nthe claim limitation “a lower portion [of the parking meter\ndevice] . . . receivable within the housing base” too nar-\nrowly, requiring that the entire lower portion of the\nparking meter device be contained inside the parking\nmeter housing. IPS further argues that the district court\nerroneously construed claim 1 to exclude a potential\nunclaimed “middle portion” of the device between the\nupper and lower portions.\n According to IPS, the district court’s claim construc-\ntion as a whole renders the preferred embodiment outside\nthe scope of claim 1. The card slot and the coin slot (both\nparts of the device itself) cannot be part of the upper\nportion of the device because the upper portion must be\ncovered by the cover panel. But they also cannot be a part\nof the lower portion of the device because they are not\n“receivable within” the housing base as per the district\n\f26 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ncourt’s claim construction. Instead, they are accessible\nthrough openings in the housing. Thus, either the coin\nslot and card slot comprise a “middle portion” not defined\nby the claims or the specification, or the district court’s\nconstruction of “receivable within” is too narrow.\n DPT responds that the plain meaning of “within” is\n“inside,” and IPS did not choose to modify the term with\nthe words “generally” or “substantially.” Appellee Br. 12–\n13. DPT argues that the district court’s claim construc-\ntion does not actually exclude the preferred embodiment\nbecause the coin slot is still inside the housing base.\nWhile the coin slot of the preferred embodiment is acces-\nsible through an opening in the housing, it does not\nactually protrude through that opening. See ’054 patent\nFig. 6. DPT further argues that prosecution history\nestoppel bars IPS from asserting that claim 1 includes\nparking meter devices that are not entirely contained\nwithin a housing.\n We agree with IPS and conclude that the district\ncourt erred by construing “receivable within” as meaning\n“capable of being contained [entirely] inside.” The district\ncourt construed the term “receivable within” as “capable\nof being contained inside,” ’054 Decision at 5, but upon\napplying the claim construction in its infringement analy-\nsis added a requirement that the “entire” lower portion of\nthe device must be contained within the housing, id. at 8,\neffectively altering the construction to “capable of being\ncontained entirely inside.” Thus, we read the district\ncourt’s claim construction as meaning “capable of being\ncontained [entirely] inside,” but through operation of the\nword “entirely,” this construction is much narrower than\nthe plain meaning of the claim limitation and is unsup-\nported by either the specification or the prosecution\nhistory of the ’054 patent.\n Claim terms must be given the ordinary and custom-\nary meaning that the term would have to a person of\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 27\n\n\n\nordinary skill in the art when read in the context of the\nspecification and prosecution history. Phillips v. AWH\nCorp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). The\nspecification and prosecution history are important to\ninterpreting the claim language. Id. at 1316–17; Trs. of\nColumbia Univ. v. Symantec Corp., 811 F.3d 1359, 1362–\n63 (Fed. Cir. 2016). A “term’s ordinary meaning must be\nconsidered in the context of all the intrinsic evidence,\nincluding the claims, specification, and prosecution histo-\nry.” Biogen Idec, Inc. v. GlaxoSmithKline LLC, 713 F.3d\n1090, 1094 (Fed. Cir. 2013). A patentee is normally\nentitled to the full scope of its claim language, Home\nDiagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358\n(Fed. Cir. 2004), and a departure from this general rule\nmay be warranted only where the patentee either clearly\nsets forth a different definition of a claim term in the\nspecification or disavows the full scope of the claim term\nduring prosecution. See Thorner v. Sony Comput. Entm’t\nAm. LLC, 669 F.3d 1362, 1365–66 (Fed. Cir. 2012).\n A reasonable meaning of the term “receivable within”\nin the context of the ’054 patent is “capable of being\ncontained inside.” Receive, The New Oxford American\nDictionary (2d ed. 2005) (defining “receive” as “to act as a\nreceptacle for” and “receptacle” as “an object or space used\nto contain something”). The suffix “-able” further implies\nthat the lower portion of the device is capable of being\ncontained within the housing base. But this definition\ncontains no limitation to “completely” or “entirely” con-\ntained, nor is there any evidence that persons of skill in\nthe art would understand it to be so limited. Indeed, DPT\nadvertised the Liberty Meter on the basis that it “fits\nwithin” existing parking meter housings. J.A. 8589.\n Likewise, the specification’s sole use of the term “re-\nceivable” does not imply any limitation to devices “entire-\nly” contained by the housing. ’054 patent col. 2 ll. 11–14\n(“The parking meter device in accordance with the inven-\ntion may be receivable in a conventional single space\n\f28 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\nparking meter housing, such as that supplied by Duncan\nIndustries, POM or Mackay.”).\n We also agree with IPS that the district court’s claim\nconstruction excludes the preferred embodiment. The\nspecification defines the coin slot as a part of the lower\nportion, see ’054 patent col. 3 ll. 44–45, even though it is\nnot located “within” the housing base but is instead\naccessible through an opening, id. at Fig. 6. Whether the\ncoin slot “protrudes” or not is beside the point; it is a part\nof the lower portion of the parking meter device but is not\n“capable of being contained [entirely] within” the housing\nbase as required by the district court’s claim construction.\nAs IPS notes, a claim construction that excludes the\npreferred embodiment is highly disfavored. See Vitrionics\nCorp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir.\n1996) (holding that a claim construction that excludes the\npreferred embodiment is “rarely, if ever, correct and\nwould require highly persuasive evidentiary support”).\n DPT argues that the district court’s narrow construc-\ntion is warranted by the prosecution history of the ’054\npatent because IPS disavowed parking meter devices not\nfully enclosed by a housing in its response to an office\naction. DPT specifically contends that by differentiating\nthe prior art on the basis that it discloses an embodiment\nexposed to the elements, rather than one enclosed within\na housing, IPS disavowed parking meter devices not\nentirely enclosed within a housing.\n We note that the district court never relied upon the\n’054 patent’s prosecution history in the ’054 Decision. In\nany case, IPS’s statements fall far short of the disavowal\nDPT urges. IPS distinguished the cited prior art—an\nactual parking meter, not an insertable device—on the\nbasis that it discloses a “self-contained unit,” as opposed\nto the claimed device, which is “a retro-fit upgrade to\nexisting parking meters.” J.A. 1424. Whether IPS was\nwise to use “exposure to the elements” as a point of dis-\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 29\n\n\n\ntinction is debatable, but IPS’s statements certainly do\nnot amount to clear disavowal of parking meter devices\nnot “completely” or “entirely” contained by a housing nor\ndo we think the prosecution history sheds any light on the\nproper interpretation of the claim.\n We have considered DPT’s other arguments but do not\nfind them persuasive. The claims cannot be limited to a\nparking meter device with a lower portion “entirely”\ncontained by the parking meter housing, and we therefore\nhold that the term “receivable within” should be con-\nstrued as “capable of being contained substantially inside”\nthe housing base. This construction is consistent with the\nplain meaning of the terms, as well as the evidence from\nthe intrinsic record that the inventors aimed to design a\nparking meter device that could practically retrofit an\nexisting parking meter, not to create a device completely\nsealed from the elements.\n Because we agree with IPS that the district court’s\nclaim construction of “receivable within” was erroneous,\nwe vacate the district court’s grant of summary judgment\nof noninfringement of the ’054 patent and remand for\nfurther proceedings consistent with the claim construction\nwe have set forth, including whether DPT’s product\ninfringes under the proper claim construction.\n III. CONCLUSION\n For the foregoing reasons, we reverse the Board’s de-\ncision and hold claims 1–5 and 7–10 of the ’310 patent\nunpatentable as anticipated by the ’054 patent. We\naffirm the district court’s grant of summary judgment of\nnoninfringement of the ’310 patent, vacate its grant of\nsummary judgment of noninfringement of the ’054 patent,\nand remand to the district court for further proceedings\nconsistent with the construction of the ’054 patent claims\nset forth in this opinion.\n REVERSED IN APPEAL NO. 2018-1205\n\f30 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n AFFIRMED-IN-PART, VACATED-IN-PART, AND\n REMANDED IN APPEAL NO. 2018-1360", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4363551/", "author_raw": "LOURIE, Circuit Judge."}]} | LOURIE | DYK | TARANTO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586298/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: DUNCAN PARKING TECHNOLOGIES, INC., Appellant v. IPS GROUP, INC., Appellee IPS Group, Inc., Plaintiff-Appellant v. Duncan Solutions Inc., Duncan Parking Technologies, Inc., CivicSmart, Inc., Defendants-Appellees\nCourt: U.S. Court of Appeals for the Federal Circuit\nDate decided: 2019-01-31\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n for the Federal Circuit\n ______________________\n\n DUNCAN PARKING TECHNOLOGIES, INC.,\n Appellant\n\n v.\n\n IPS GROUP, INC.,\n Appellee\n ______________________\n\n 2018-1205\n ______________________\n\n Appeal from the United States Patent and Trademark\nOffice, Patent Trial and Appeal Board in No. IPR2016-\n00067.\n\n --------------------------------------------------\n\n IPS GROUP, INC.,\n Plaintiff-Appellant\n\n v.\n\n DUNCAN SOLUTIONS INC., DUNCAN PARKING\n TECHNOLOGIES, INC., CIVICSMART, INC.,\n Defendants-Appellees\n ______________________\n\n 2018-1360\n ______________________\n\f2 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n Appeal from the United States District Court for the\nSouthern District of California in No. 3:15-cv-01526-CAB-\nMDD, Judge Cathy Ann Bencivengo.\n\n ______________________\n\n Decided: January 31, 2019\n ______________________\n\n STUART ALAN RAPHAEL, Hunton Andrews Kurth LLP,\nWashington, DC, argued for appellant in 2018-1205. Also\nrepresented by DANIEL GEORGE VIVARELLI, JR., STEVEN\nLESLIE WOOD.\n\n RICHARD TORCZON, Wilson, Sonsini, Goodrich &\nRosati, PC, Washington, DC, argued for appellee in 2018-\n1205. Also represented by MATTHEW A. ARGENTI, Palo\nAlto, CA; DOUGLAS H. CARSTEN, San Diego, CA; MICHAEL\nT. ROSATO, Seattle, WA.\n\n DOUGLAS H. CARSTEN, Wilson, Sonsini, Goodrich &\nRosati, PC, San Diego, CA, argued for plaintiff-appellant\nin 2018-1360. Also represented by NATHANIEL RYAN\nSCHARN, JAMES PATRICK HEALY STEPHENS; ADAM WILLIAM\nBURROWBRIDGE, Washington, DC; CHRISTOPHER D. MAYS,\nPalo Alto, CA.\n\n JOSHUA M. KALB, Hunton Andrews Kurth LLP, Atlan-\nta, GA, argued for defendants-appellees in 2018-1360.\nAlso represented by DANIEL GEORGE VIVARELLI, JR.,\nSTUART ALAN RAPHAEL, Washington, DC.\n ______________________\n\n Before LOURIE, DYK, and TARANTO, Circuit Judges.\nLOURIE, Circuit Judge.\n IPS Group Inc. (“IPS”) appeals from two decisions of\nthe United States District Court for the Southern District\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 3\n\n\n\nof California granting summary judgment of nonin-\nfringement of U.S. Patents 8,595,054 (“the ’054 patent”)—\nIPS Grp., Inc. v. Duncan Sols., Inc., No. 15-CV-1526-CAB-\n(MDD), 2017 WL 5973337 (S.D. Cal. Dec. 1, 2017) (“’054\nDecision”)—and 7,854,310 (“the ’310 patent”)—IPS Grp.,\nInc. v. Duncan Sols., Inc., No. 15-CV-1526-CAB-(MDD),\n2017 WL 3530968 (S.D. Cal. Aug. 16, 2017) (“’310 Deci-\nsion”) (collectively, the “1360 Appeal”).\n Duncan Parking Technologies Inc. (“DPT”) appeals\nfrom a related decision of the Patent Trial and Appeal\nBoard (“the Board”), Duncan Parking Techs., Inc. v. IPS\nGrp., Inc., No. IPR2016-00067, Paper 29 (P.T.A.B. Mar.\n27, 2017) (“Board Decision”), modified on reh’g, Paper 37\n(P.T.A.B. Aug. 18, 2017) (“Rehearing Decision”), in an\ninter partes review holding that claims 1–5 and 7–10 of\nthe ’310 patent were not shown to be unpatentable as\nanticipated under 35 U.S.C. § 102(e) (the “1205 Appeal”).\nWe address these appeals together in this combined\nopinion.\n We reverse the Board’s decision in the 1205 Appeal\nthat claims 1–5 and 7–10 of the ’310 patent are not un-\npatentable as anticipated. We affirm the district court’s\ndecision in the 1360 Appeal granting summary judgment\nof noninfringement of the ’310 patent. Finally, we vacate\nthe district court’s decision in the 1360 Appeal granting\nsummary judgment of noninfringement of the ’054 patent\nbecause the district court erred in construing the claims\ntoo narrowly, and we remand the case to the district court\nfor further proceedings consistent with the claim con-\nstruction we set forth.\n I. BACKGROUND\n A.\n IPS designs parking meter technology. It is run by\nfounder and CEO Dave King and Chief Technical Officer\nAlexander Schwarz. Both are electrical engineers by\n\f4 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ntraining. The company manufactured multi-space park-\ning meters from its founding in 1994 until it changed its\nfocus to cellular phone technology around 2000. Accord-\ning to King, he conceived the idea for a credit-card ena-\nbled, solar-powered, single-space parking meter in May\n2003, when he had trouble finding change to pay for a\nparking meter in Newport Beach, California. IPS began\nwork on the project shortly thereafter, and King consulted\nwith Schwarz as he developed his idea. Eventually, King\ndecided that IPS could gain greater market access by\noffering a retrofit device that replaces the internal com-\nponents of an existing parking meter, rather than a costly\nreplacement of the entire meter.\n King identified “two big hurdles” to developing IPS’s\nsingle-space parking technology: (1) designing a device\nwith all of the requisite components that could easily\nretrofit existing parking meter housings and (2) integrat-\ning the electronic components and designing software and\na controller to coordinate the electrical system. J.A.\n1336. 1 To assist with the first challenge, IPS engaged a\ndesign firm, D+I, in November 2004 and provided it with\na list of desired components and functionalities that King\npurportedly conceived, including a credit card reader, a\nsolar panel, and a switch pad, among others.\n King assigned Schwarz responsibility for “figuring out\nhow to implement the electronics.” J.A. 1337. According\nto King, “[Schwarz’s] inventive contribution [was] limited\nto conception and development of how the various electri-\ncal components of the meter are interconnected and\n\n\n 1 Because we decide two appeals in this opinion,\nthere are two sets of briefs and two sets of joint appen-\ndices. All citations in the 1360 Appeal section refer to the\nbriefs and joint appendices of the 1360 Appeal, while all\nprevious citations, including those in the background\nsection, refer to those of the 1205 Appeal.\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 5\n\n\n\noperate together.” J.A. 1345. Schwarz sourced the elec-\ntronic components, and generally took responsibility for\nsolving electronics obstacles. In July 2005, Schwarz\ncompiled a list of electrical components to be included in\nthe device, along with product specifications for many of\nthem, and drew a block diagram conceptualizing the\nelectrical connections between the components. A slightly\nmodified version of that block diagram was later disclosed\nin the ’054 patent as Figure 8, illustrating “[t]he various\nelectrical and other components of the parking meter\ndevice.” ’054 patent col. 4 ll. 15–16.\n B.\n The ’310 and ’054 patents are similar but do not have\nthe same specifications. The ’054 patent issued in 2013\nfrom a PCT application filed on December 4, 2006, nam-\ning King and Schwarz as inventors. It claims a credit\ncard-enabled, solar-powered, single-space parking meter\ndevice that can be used to retrofit the internal compo-\nnents of existing parking meters. Claim 1 is the sole\nindependent claim and is representative:\n 1. A parking meter device that is receivable with-\n in a housing base of a single space parking meter,\n the parking meter device including:\n a timer;\n a payment facilitating arrangement operable in\n cooperation with a non-cash payment medium for\n effecting payment of a monetary amount for a\n parking period;\n a display configured to visually provide a balance\n remaining of the parking period;\n a power management facility that supplies power\n to the timer, payment facilitating arrangement,\n and display;\n\f6 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n a wireless communications subsystem configured\n to receive information relating to the non-cash\n payment medium in respect of the payment facili-\n tating arrangement;\n a keypad sensor that receives input comprising\n manipulation by the user;\n a coin slot into which coins are inserted for deliv-\n ery to the coin sensor and then to a coin recepta-\n cle; and\n a lower portion and an upper portion;\n wherein the keypad sensor operates the parking-\n meter and determines parking time amount for\n purchase in accordance with the received input\n from the user;\n wherein the display provides the amount of time\n purchased in response to the received input from\n the user;\n wherein the upper portion of the parking meter\n device includes a solar panel that charges the\n power management facility;\n wherein the lower portion of the parking meter\n device is configured to have a shape and dimen-\n sions such that the lower portion is receivable\n within the housing base of the single space parking\n meter; and\n wherein the upper portion of the parking meter\n device is covered by a cover that is configured to\n accommodate the upper portion and that is en-\n gageable with the housing base of the single space\n parking meter such that the payment facilitating\n arrangement is accessible by the user for user\n manipulation effecting the payment of the mone-\n tary amount for the parking period when the low-\n er portion of the parking meter device is received\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 7\n\n\n\n within the housing base and the upper portion is\n covered by the cover.\n’054 patent col. 5 l. 43–col. 6 l. 17 (emphasis added).\n The ’310 patent issued in 2010 from an application\nfiled on February 27, 2008, more than a year after the\n’054 patent’s application had been filed, naming as inven-\ntors King and three engineers from D+I, Murray Hunter,\nMathew Hall, and David Jones. It claims a credit card-\nenabled, solar-powered, single-space parking meter.\nClaim 9 is exemplary:\n 9. A parking meter comprising:\n a housing comprising an intermediate panel set\n and a cover panel, the cover panel being movably\n attached to the intermediate panel set, wherein a\n first surface of the cover panel and a first surface\n of the intermediate panel set comprise a parking\n meter front face, the first surface of the cover panel\n having a first window and a plurality of buttons\n that operate the parking meter upon manipulation\n by a user, wherein a second surface of the cover\n panel and a second surface of the intermediate\n panel set comprise a parking meter rear face, the\n rear face surface of the cover panel providing a\n second window;\n a module configured to be removably received by\n the housing, the module comprising\n (a) a coin sensor,\n (b) a card reader, and\n (c) an electronic device electrically connect-\n ed to the sensor and the reader so as to re-\n ceive information electronically therefrom,\n the electronic device comprising\n\f8 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n (i) a screen to provide information\n visually via the first window when\n the cover panel is attached to the\n intermediate panel set,\n (ii) a telephone connection to pro-\n vide receiving information in re-\n spect of the card reader,\n (iii) a rechargeable battery electri-\n cally coupled to provide power to\n the reader, the sensor, and the elec-\n tronic device, and\n (iv) a solar cell operatively coupled\n with the rechargeable battery to\n charge the rechargeable batter[y],\n the solar cell being disposed to re-\n ceive light via the second window;\n a coin slot in the parking meter front face into\n which coins are inserted for delivery to the coin\n sensor and then to a coin receptacle; and\n a card slot in the parking meter front face into\n which a card is inserted to be read by the reader;\n wherein the coin sensor and the card reader are\n electrically linked to provide information to the\n electronic device to provide information of wheth-\n er payment has been made.\n’310 patent col. 4 l. 36–col. 5 l. 8 (emphases added).\n The patents disclose closely related preferred embod-\niments based on the prototype D+I created for IPS.\nFigure 4 of the ’310 patent is illustrative; it shows the\nfront view of the parking meter, with the cover panel (16)\npivoted to an open position:\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 9\n\n\n\n\n Figure 7 of the ’054 patent shows the parking meter\ndevice alongside the empty housing, with the cover panel\n(36) again in the open position:\n\n\n\n\n Figure 8 of the ’054 patent shows the block diagram of\nthe preferred embodiment’s electrical components, which\nare described from col. 4 l. 15–col. 5 l. 8:\n\f10 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n C.\n In July 2015, IPS filed a complaint against DPT in the\nSouthern District of California asserting infringement of\nthe ’054 and ’310 patents. The district court in August\n2017 granted DPT’s motion for summary judgment that\nDPT’s accused product, the Liberty® Single-Space Meter\n(“the Liberty Meter”), does not infringe claims 1–9 or\nclaim 11 of the ’310 patent because the Liberty Meter’s\ncover panel does not include a “plurality of buttons,” as is\nrequired by the ’310 patent claims. ’310 Decision at 9.\nInstead, the Liberty Meter has a keypad that is part of\nthe parking meter device itself, which protrudes through\nan opening in the housing. The court construed “cover\npanel” in the ’310 patent claims as the “upper structural\ncomponent of the exterior casing,” id. at 8, and thus held\nthat the Liberty Meter does not infringe, literally or under\nthe doctrine of equivalents, any claim of the ’310 patent.\nId. at 10–11. The Liberty Meter is depicted below:\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 11\n\n\n\n\nJ.A. 23.\n In December 2017, the district court further held that\nthe Liberty Meter does not infringe any claim of the ’054\npatent. The claims require the “lower portion of the\nparking meter device [be] configured to have a shape and\ndimensions such that the lower portion is receivable\nwithin the housing base of the single space parking me-\nter.” ’054 patent col. 6 ll. 4–7. The court construed “re-\nceivable within” as “capable of being contained inside,”\nand applied this construction to require that the “entire\nlower portion” of the infringing product be “receivable\nwithin the housing base.” ’054 Decision at 8. The district\ncourt granted summary judgment of noninfringement\nbecause it found that the Liberty Meter’s keypad extends\nthrough an opening in the lower portion of the housing\nand, as a result, the lower portion of the Liberty Meter’s\ndevice is not “receivable within” its housing base. Id.\n Meanwhile, shortly after IPS filed its complaint, DPT\npetitioned in the U.S. Patent and Trademark Office for\ninter partes review of claims 1–5 and 7–10 of the ’310\npatent. The Board instituted a review on the ground that\nthe ’054 patent anticipates the ’310 patent under\n35 U.S.C. § 102(e). After institution, IPS chose not to\n\f12 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ndispute whether, on the merits, the ’054 patent antici-\npates the ’310 patent claims. IPS instead argued in its\nPatent Owner Response that the anticipating portions of\nthe ’054 patent are solely King’s invention, not that “of\nanother” under 35 U.S.C. § 102(e), and therefore cannot\nbe applied as prior art against the ’310 patent claims. To\nsupport its argument that King alone conceived the\nrelevant disclosure, IPS submitted declarations from\nKing, Schwarz, and David Jones—an engineer from D+I\nand a named inventor of the ’310 patent—along with\ncontemporaneous documents reflecting the invention’s\ndevelopment from 2003 to 2005. In the Petitioner’s Reply,\nDPT argued that the ’054 patent is prior art because\nSchwarz conceived at least a portion of the ’054 patent’s\nanticipating disclosure.\n The Board held that, while Schwarz “contributed to\nthe creation of at least some aspects of the block diagram\nof Figure 8 . . . [the Board was] skeptical that the general\nrecitation in claims 1 and 9 of connections and operative\nassociations of components constitutes more than what\nMr. King broadly envisioned.” Board Decision at 9–10.\nThe Board also found that, in order to account for certain\nclaim limitations, DPT’s anticipation argument “relie[d]\non content of [the ’054 patent] that is outside of any\ndepiction or description associated with Figure 8,” which\nwas indisputably the work of King alone. Id. at 10. The\nBoard ultimately held that King was the sole inventor of\nthe anticipating disclosure of the ’054 patent, id. at 14,\nand thus claims 1–5 and 7–10 were held not unpatentable\nas anticipated by the ’054 patent. 2\n\n\n\n 2 The Board found that King was the sole inventor\nof all of the limitations of claims 1–5, 7, and 9, Board\nDecision at 14; that King, Hunter, Hall, and Jones (the\n’310 patent inventors) jointly invented the limitations of\nclaims 8 and 10, id. at 15; and that King and Schwarz\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 13\n\n\n\n DPT timely appealed from the Board’s decision, and\nIPS timely appealed from the district court’s summary\njudgments of noninfringement. We have jurisdiction over\nboth appeals under 28 U.S.C. §§ 1295(a)(1), (a)(4)(A). We\nfirst address the Board’s decision.\n II. DISCUSSION\n A. The 1205 Appeal\n We review the Board’s legal determinations de novo,\nIn re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), but we\nreview the Board’s factual findings underlying those\ndeterminations for substantial evidence, In re Gartside,\n203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding is sup-\nported by substantial evidence if a reasonable mind might\naccept the evidence as adequate to support the finding.\nConsol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).\nAnticipation is a question of fact. In re Gleave, 560 F.3d\n1331, 1334–35 (Fed. Cir. 2009). Inventorship is a ques-\ntion of law based on underlying findings of fact, Gen. Elec.\nCo. v. Wilkins, 750 F.3d 1324, 1329 (Fed. Cir. 2014),\nwhich we review for substantial evidence.\n DPT argues in the 1205 Appeal that Schwarz is a\njoint inventor of the relevant portions of the ’054 patent\nbecause he conceived the electrical system depicted in\nFigure 8. Thus, DPT contends that the ’310 patent claims\nare anticipated by the ’054 patent. In addition, DPT\nargues that the Board abused its discretion by denying\nDPT’s motion for additional discovery, under\n\n\n\n\nderived the subject matter in the ’054 patent which dis-\ncloses the limitations of claims 8 and 10 from King,\nHunter, Hall and Jones, removing that subject matter as\nprior art under § 102(e), Rehearing Decision at 6. DPT\ndoes not dispute the inventorship of Hunter, Hall, and\nJones on appeal. Appellant’s Reply Br. 8.\n\f14 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n37 C.F.R. § 42.51(b)(2), of documents that concern the\ninvention of the relevant portions of the ’054 patent.\n IPS responds that Schwarz’s drawing the block dia-\ngram does not mean that he conceived the relevant elec-\ntronics, and that “Schwarz’s conception of aspects of\nFigure 8 not recited in the ’310 claims is irrelevant.”\nAppellee Br. 33. IPS further argues that the fact that\n“King communicated his idea in terms of the ‘general’\nconnectivity of certain components does not matter since\nthat merely reflects the connectivity of those components\nas recited in the ’310 claims.” Appellee Br. 37. IPS does\nnot dispute the Board’s finding that the ’054 patent would\nanticipate the ’310 patent claims if it were prior art.\nBoard Decision at 6.\n We agree with DPT that the ’054 patent anticipates\nthe challenged claims of the ’310 patent. The Board\nclearly erred in concluding otherwise. A patent is antici-\npated under 35 U.S.C. § 102(e) if “the invention was\ndescribed in . . . a patent granted on an application for\npatent by another filed in the United States before the\ninvention by the applicant for patent” (emphasis added). 3\n“The statute’s reference to ‘by another’ means that an\napplication issued to the same inventive entity cannot\nqualify as § 102(e) prior art.” EmeraChem Holdings, LLC\nv. Volkswagen Grp. of Am., Inc., 859 F.3d 1341, 1345 (Fed.\nCir. 2017) (citing Riverwood Int’l Corp. v. R.A. Jones &\nCo., 324 F.3d 1346, 1355–56 (Fed. Cir. 2003)).\n\n\n\n\n 3 The ’310 patent was filed in 2006 and issued in\n2010, so pre-AIA § 102(e) applies. See Leahy–Smith\nAmerica Invents Act, Pub. L. No. 112–29, sec. 3(c), 125\nStat. 284, 293 (2011) (explaining that the pre-AIA version\nof the Patent Act generally applies to patents with effec-\ntive filing dates before March 16, 2013).\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 15\n\n\n\n We must review here whether the Board erred in con-\ncluding that the applied portions of the ’054 patent were\ninvented by King alone and not by King and Schwarz\njointly. See In re DeBaun, 687 F.2d 459, 463 (CCPA\n1982). If Schwarz is a joint inventor of the anticipating\ndisclosure, then it is “by another” for the purposes of §\n102(e). In re Land, 368 F.2d 866, 879 (CCPA 1966) (“[A]n\ninvention made jointly by A & B cannot be the sole inven-\ntion of A or B . . . .”). To be a joint inventor, one must:\n (1) contribute in some significant manner to the\n conception or reduction to practice of the inven-\n tion, (2) make a contribution to the claimed inven-\n tion that is not insignificant in quality, when that\n contribution is measured against the dimension of\n the full invention, and (3) do more than merely\n explain to the real inventors well-known concepts\n and/or the current state of the art.\nIn re VerHoef, 888 F.3d 1362, 1366 (Fed. Cir. 2018) (quot-\ning Pannu v. Iolab Corp., 155 F.3d 1344, 1351 (Fed. Cir.\n1998)). “The law of inventorship does not hinge co-\ninventorship status on whether a person contributed to\nthe conception of all of the limitations in any one claim of\nthe patent. Rather, the law requires only that a co-\ninventor make a contribution to the conception of the\nsubject matter of the claim.” Eli Lilly & Co. v. Aradigm\nCorp., 376 F.3d 1352, 1361–62 (Fed. Cir. 2004); see Fina\nOil & Chem. Co. v. Ewen, 123 F.3d 1466, 1474 (Fed. Cir.\n1997).\n Thus, to decide whether a reference patent is “by an-\nother” for the purposes of 35 U.S.C. § 102(e), the Board\nmust (1) determine what portions of the reference patent\nwere relied on as prior art to anticipate the claim limita-\ntions at issue, (2) evaluate the degree to which those\nportions were conceived “by another,” and (3) decide\nwhether that other person’s contribution is significant\nenough, when measured against the full anticipating\n\f16 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ndisclosure, to render him a joint inventor of the applied\nportions of the reference patent. We conclude that the\nBoard erred in not holding that King and Schwarz are\njoint inventors of the anticipating disclosure.\n As is clear from DPT’s Petition, J.A. 84–100, as well\nas the Institution Decision, Duncan Parking Techs., Inc.\nv. IPS Grp., Inc., No. IPR2016-00067, 2016 WL 5679596,\nPaper 9 (P.T.A.B. Mar. 30, 2016), DPT relied on the ’054\npatent’s disclosure of a specific parking meter device,\ndepicted in the figures and described in detail in the\nspecification. See, e.g., ’054 patent col. 3 ll. 9–10 (“The\ninvention is now described, by way of a non-limiting\nexample, with reference to the accompanying drawings . .\n. .”); id. col. 4 ll. 15–34. As noted above, IPS does not\ndispute that the ’054 patent’s embodiment discloses all of\nthe limitations of the ’310 patent claims at issue. On\nappeal, DPT relies on Figure 8, a block diagram depicting\nthe embodiment’s electrical system, as anticipatory prior\nart “by another” disclosing the electrical connections and\ncomponents claimed in the ’310 patent. See, e.g., Appel-\nlant Br. 19–21 (comparing the electrical connections and\ncomponents recited in claims 1 and 9 with the disclosure\nin Figure 8); ’054 patent col. 4 ll. 15–34 (“The various\nelectrical and other components of the parking meter\ndevice 10 are indicated in FIG. 8. . . . [T]here is a power\nmanagement facility 46 . . . . The controller 52 controls\noperation of the meter. An integrated device is used . . . .”\n(emphases added)).\n In particular, Figure 8 discloses each of the electrical\ncomponents claimed in the ’310 patent, along with a\ndetailed diagram showing how each component is con-\nnected. The electrical system limitations of the ’310\npatent claims require such connections and operability.\nClaim 9 recites “[a]n electronic device electrically connect-\ned to the sensor and the reader” along with “a rechargea-\nble battery electrically coupled to provide power to the\nreader, the sensor, and the electronic device” and “a solar\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 17\n\n\n\ncell operatively coupled with the rechargeable battery to\ncharge the rechargeable batter[y].” Claim 1 similarly\nrecites “[a]n electronic device electrically connected to the\nsensor and reader” and “connections for at least one\nrechargeable battery to power the reader, sensor, and\ndevice” along with a “solar cell operatively associated with\nsaid connections to charge said battery.” The ’310 patent\nclaims are clear on their face that they require electronic\nconnections and components disclosed by Figure 8 in the\n’054 patent. Because the ’310 patent claims clearly in-\nclude elements previously disclosed in Figure 8, the\nquestion is whether Schwarz conceived those elements as\nthey were disclosed in the ’054 patent. Cf. In re Carreira,\n532 F.2d 1356, 1358–59 (CCPA 1976) (holding that a\nreference patentees’ declaration that they did not invent\nthe claimed method is insufficient to remove the reference\npatent as § 102(e) prior art because “the declarants could\nbe the inventors of the species disclosed in their patents,\nbut at the same time never have conceived of the general\nor generic use [claimed in the patent at issue]”).\n It is clear that Schwarz conceived much of the ’054\npatent’s electrical system, including designing the dia-\ngram showing how all the electronic components are\nconnected. See Board Decision at 9. Schwarz invented\n“how the various electrical components of the meter are\ninterconnected and operate together.” J.A. 1345.\nSchwarz’s block diagram, depicted in Figure 8, organizes\n26 separate electrical components and specific electrical\nconnections between them. ’054 patent Fig. 8; J.A. 1390.\nThe record shows that Schwarz conceived many of these\ndetails. See, e.g., J.A. 1517 (“I came up with the [idea]\nthat there needs to be a power management block next to\nthe central controller that controls the power and how to\nactually connect that in detail.”); J.A. 1381–82 (communi-\ncating product specifications and electrical requirements\nof the solar panel, card reader, display, antenna, and\nbattery to King); J.A. 1391–92 (directing procurement and\n\f18 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ndesign of all sourced electrical components); J.A. 1533\n(noting he conceived of ideas to connect the solar panels to\nrecharge the battery).\n Schwarz’s contribution to the invention defined by the\n’310 patent claims, as disclosed in the ’054 patent, was\nsignificant in light of the invention as a whole. While IPS\nargues that Schwarz’s role consisted of “drawing a sche-\nmatic,” Appellee Br. 33, the record shows that creating\nthe block diagram was not a minor task. Schwarz had to\ncoordinate with D+I as they designed a device that could\nphysically fit within an existing parking meter housing.\nSee J.A. 1376–77 (telling D+I that “determin[ing] a wiring\nschematic . . . [will] be easier once we have some compo-\nnents and can lay them out – [it will] give me a better\nidea”). As a result of Schwarz’s contribution, the ’054\npatent discloses a parking meter device with a detailed\nelectrical system, a challenge King described as one of\n“two big hurdles” to the invention, J.A. 1336. Thus,\nSchwarz’s contribution, measured against the dimension\nof the full invention, was significant.\n Further, the ’054 patent’s parking meter device, its\nsole embodiment, contains the specific electrical system\ndisclosed in Figure 8. As the Board found, Board Decision\nat 9–10, Schwarz conceived, at the very least, some as-\npects of that electrical system which are required by the\nelectrical system limitations of the ’310 patent claims.\nThe record indicates that these aspects of the electrical\nsystem were a significant contribution to the invention\nclaimed in the ’310 patent. Thus, the anticipating embod-\niment was the joint invention of King and Schwarz, an\ninventive entity different from that of the ’310 patent, and\nthe ’054 patent is prior art under 35 U.S.C. § 102(e).\nSince IPS does not dispute the Board’s finding that this\nembodiment discloses every limitation of claims 1–5 and\n7–10, id. at 6, we hold those claims of the ’310 patent\nunpatentable as anticipated. We therefore need not\naddress the discovery dispute concerning them.\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 19\n\n\n\n B. The 1360 Appeal\n We review a district court’s grant of summary judg-\nment according to the law of the regional circuit. Kaneka\nCorp. v. Xiamen Kingdomway Grp. Co., 790 F.3d 1298,\n1303 (Fed. Cir. 2015) (citing Halo Elecs., Inc. v. Pulse\nElecs., Inc., 769 F.3d 1371, 1377 (Fed. Cir. 2014)). In the\nNinth Circuit, summary judgment is reviewed de novo,\nBrunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th\nCir. 2017) (citing Ctr. for Bio-Ethical Reform, Inc. v. L.A.\nCty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)), and\nis appropriate when, viewing the evidence in favor of the\nnon-movant, there is no genuine dispute as to any mate-\nrial fact, Zetwick v. Cty. of Yolo, 850 F.3d 436, 440 (9th\nCir. 2017).\n While infringement is a question of fact, Lucent\nTechs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1309 (Fed.\nCir. 2009), we review de novo the district court’s grant of\nsummary judgment of noninfringement, Innogenetics,\nN.V. v. Abbott Labs., 512 F.3d 1363, 1378 (Fed. Cir. 2008).\n“An infringement analysis entails two steps. The first\nstep is determining the meaning and scope of the patent\nclaims asserted to be infringed. The second step is com-\nparing the properly construed claims to the device ac-\ncused of infringing.” Markman v. Westview Instruments,\nInc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc) (citations\nomitted), aff’d, 517 U.S. 370 (1996).\n “To establish literal infringement, every limitation set\nforth in a claim must be found in an accused product,\nexactly.” Southwall Techs., Inc. v. Cardinal IG Co., 54\nF.3d 1570, 1575 (Fed. Cir. 1995). The patentee has the\nburden of proving infringement by a preponderance of the\nevidence. SmithKline Diagnostics, Inc. v. Helena Labs.\nCorp., 859 F.2d 878, 889 (Fed. Cir. 1988). Claim construc-\ntion is ultimately an issue of law, which we review de\nnovo. Shire Dev., LLC v. Watson Pharm., Inc., 787 F.3d\n1359, 1364 (Fed. Cir. 2015). We review de novo the dis-\n\f20 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ntrict court’s findings of fact on evidence “intrinsic to the\npatent (the patent claims and specification[], along with\nthe patent’s prosecution history),” and review for clear\nerror all other findings of fact subsidiary to the district\ncourt’s claim construction. Teva Pharm. USA, Inc. v.\nSandoz, Inc., 135 S. Ct. 831, 841 (2015).\n 1. The ’310 Patent\n IPS asserted claims 1–9 and 11 of the ’310 patent in\nthe district court. ’310 Decision at 2. These claims are\nnot coextensive with the claims DPT challenged in its\npetition for IPR, claims 1–5 and 7–10, Board Decision at\n1, which makes it necessary for us to consider IPS’s\ninfringement arguments relating to claims 6 and 11\ndespite our holding claims 1–5 and 7–10 unpatentable.\nBecause we affirm the district court’s grant of summary\njudgment of noninfringement of claims 1 and 9, the only\nindependent claims of the ’310 patent, we need not sepa-\nrately address the additional limitations of the remaining\ndependent claims 6 and 11, which IPS has not specifically\nargued. See Wahpeton Canvas Co. v. Frontier, Inc., 870\nF.2d 1546, 1552 n.9 (Fed. Cir. 1989) (“One who does not\ninfringe an independent claim cannot infringe a claim\ndependent on (and thus containing all the limitations of)\nthat claim.” (citing Teledyne McCormick Selph v. United\nStates, 558 F.2d 1000, 1004 (Ct. Cl. 1977))). We therefore\nwill only review the infringement arguments relating to\nclaim 9, which IPS has indicated is exemplary.\n IPS argues in the 1360 Appeal that the district court\nshould not have granted summary judgment of nonin-\nfringement of the ’310 patent because the Liberty Meter\ninfringes claim 9 either literally or through the doctrine of\nequivalents. The essence of IPS’s argument for literal\ninfringement is that the district court applied its con-\nstruction of the term “cover panel” as “the upper structur-\nal component of the exterior casing” too narrowly, relying\non the preferred embodiment and the figures to limit the\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 21\n\n\n\nscope of the claimed invention to a cover panel that\nswings open, as in Figure 4. Specifically, IPS argues that\nthe Liberty Meter’s keypad, a part of the device itself that\nextends through an opening in the housing base, meets\nthe limitation of a “cover panel movably attached to the\nintermediate panel set . . . [with] a plurality of buttons”\nbecause it is “slidably attached” to the housing, which the\n’310 patent specification discloses as an alternative cover\npanel mechanism. ’310 patent col. 2 ll. 49–50.\n DPT responds that the ’310 patent discloses the cover\npanel as a singular component, not as a collection of\ncomponents, and as a part of the housing, not the internal\ndevice as in the Liberty Meter. DPT also argues that the\nLiberty Meter’s keypad is not “attached” to the intermedi-\nate panel set but is instead merely in contact with its\noutside surface. Appellee Br. 37 (analogizing the Liberty\nMeter keypad’s sliding over the surface of the housing to a\ngolf ball on a tee).\n We are unpersuaded by IPS’s arguments. The Liberty\nMeter’s keypad is an extension of its device, and constru-\ning part of the device as the cover panel is inconsistent\nwith the claims of the ’310 patent. See ’310 patent col. 4 l.\n36–col. 5 l. 3 (defining “a housing comprising . . . a cover\npanel” in contradistinction to the module “removably\nreceived by the housing” as well as the coin slot); see\ngenerally id. col. 3 l. 45–col. 4 l. 4, col. 4 l. 36–col. 5 l. 5.\nThe specification is equally clear that the cover panel is a\npart of the housing and does not include the device. See\nid. col. 2 ll. 66–67 (“The panel set 15 and cover panel 16\nprovide a housing 31 within which a module 32 is locat-\ned.”). DPT is also correct that the cover panel is described\nas a singular component. See, e.g., id. col. 2 ll. 44–49\n(“The cover panel 16 is pivotally attached to the panel set\n. . . . In an alternative form, the panel 16 may be slidably\nattached.” (emphases added)).\n\f22 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n Nor is the Liberty Meter’s keypad “attached” to an in-\ntermediate panel set, as required by the ’310 patent\nclaims, simply by virtue of making contact with its hous-\ning. The word “attach” is never used in so broad a sense\nin the ’310 patent. See, e.g., ’310 patent col. 2 ll. 28, 30,\n44, 50. IPS has not presented any argument that a per-\nson of skill in the art would understand the term more\nbroadly than its ordinary meaning of “to fasten or join.”\nAttach, The New Oxford American Dictionary (2d ed.\n2005). Accordingly, there is no genuine dispute that the\nLiberty Meter does not meet the limitation of a “cover\npanel movably attached to the intermediate panel set . . .\n[with] a plurality of buttons,” and the district court there-\nfore did not err by granting summary judgment of nonin-\nfringement of the ’310 patent claims.\n IPS argues in the alternative that the Liberty Meter\ninfringes under the doctrine of equivalents because its\nkeypad performs substantially the same function as the\ncover panel buttons of the claimed parking meter, in the\nsame way, to achieve the same result. The keypad oper-\nates the parking meter, as in the claimed invention, by\nusing buttons to allow the user to purchase time and\nprocess credit card transactions. According to IPS, chang-\ning the location of the buttons from the cover panel to the\ndevice itself is an insubstantial change, and thus the case\nshould not have been resolved on summary judgment.\nSee Brilliant Instruments, Inc. v. GuideTech, LLC, 707\nF.3d 1342, 1348 (Fed. Cir. 2013) (finding that an alleged\ndifference in location of a structural claim limitation is a\ngenuine dispute of material fact).\n DPT contends that finding the Liberty Meter to be an\nequivalent, as sought by IPS, would vitiate the claim\nlimitation requiring buttons to be located on the cover\npanel, which is a part of the housing, not the device.\nConsequently, the Liberty Meter’s keypad does not work\nin the “same way” as required by the doctrine of equiva-\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 23\n\n\n\nlents. DPT argues that summary judgment was therefore\nappropriate.\n We agree with DPT that the Liberty Meter’s keypad\ndoes not work in the same way as the claimed invention.\nUnder the doctrine of equivalents, a product or process\nthat does not literally infringe a patent claim may never-\ntheless be held to infringe “if it performs substantially the\nsame function in substantially the same way to obtain the\nsame result.” Graver Tank & Mfg. Co. v. Linde Air Prods.\nCo., 339 U.S. 605, 608 (1950) (quoting Sanitary Refrigera-\ntor Co. v. Winters, 280 U.S. 30, 42 (1929)). But the doc-\ntrine of equivalents cannot be used to effectively read out\na claim limitation, Primos, Inc. v. Hunter’s Specialties,\nInc., 451 F.3d 841, 850 (Fed. Cir. 2006), because the\npublic has a right to rely on the language of patent claims.\nSee London v. Carson Pirie Scott & Co., 946 F.2d 1534,\n1538 (Fed. Cir. 1991) (“[I]f the public comes to believe (or\nfear) that the language of patent claims can never be\nrelied on, and that the doctrine of equivalents is simply\nthe second prong of every infringement charge, regularly\navailable to extend protection beyond the scope of the\nclaims, then claims will cease to serve their intended\npurpose.”).\n The ’310 patent claims fundamentally distinguish the\nhousing from the device. See, e.g., ’310 patent col. 4 ll. 37,\n47. Holding that the Liberty Meter infringes the ’310\npatent claims under the doctrine of equivalents would\nessentially void the claim limitation of a “housing [with] a\ncover panel being movably attached to the intermediate\npanel set [and with] a plurality of buttons.” We have\nconsistently held that the doctrine of equivalents does not\nextend so broadly. See, e.g., Conopco, Inc. v. May Dep’t\nStores Co., 46 F.3d 1556, 1562 (Fed. Cir. 1994) (“The\ndoctrine of equivalents cannot be used to erase ‘meaning-\nful structural and functional limitations of the claim on\nwhich the public is entitled to rely in avoiding infringe-\nment.’” (quoting Pennwalt Corp. v. Durand-Wayland, Inc.,\n\f24 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n833 F.2d 931, 935 (Fed. Cir. 1987))); Freedman Seating\nCo. v. Am. Seating Co., 420 F.3d 1350, 1361 (Fed. Cir.\n2005) (holding that a rotatably mounted stowable seat\nwas not equivalent to the claimed slidably mounted\nstowable seat because it was a “structural difference” that\nconstituted a “clear, substantial difference or difference in\nkind”).\n The district court correctly found that IPS’s doctrine\nof equivalents argument required vitiating a claim limita-\ntion. ’310 Decision at 10. Allowing IPS to greatly expand\nthe scope of the ’310 patent claims, to cover a parking\nmeter with buttons located nearly anywhere on the out-\nside of the meter, would disserve members of the public\nwho seek to avoid infringing those claims. See London,\n946 F.2d at 1538. Thus, the district court did not err by\ngranting summary judgment of noninfringement. Warn-\ner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17,\n39 n.8 (1997) (“[I]f a theory of equivalence would entirely\nvitiate a particular claim element, partial or complete\njudgment should be rendered by the court, as there would\nbe no further material issue for the jury to resolve.”\n(emphasis omitted)).\n The parties also argue at length about whether prose-\ncution history estoppel bars IPS’s doctrine of equivalents\nargument. We find it unnecessary to address this dispute\nbecause we agree with the district court that the Liberty\nMeter is simply not an equivalent to the ’310 patent\nclaims.\n IPS further maintains that the district court resolved\ndisputed issues of fact over its expert Dr. Rosing’s testi-\nmony, but “[w]here the parties do not dispute any rele-\nvant facts regarding the accused product . . . but disagree\nover possible claim interpretations, the question of literal\ninfringement collapses into claim construction and is\namenable to summary judgment.” See Gen. Mills, Inc. v.\nHunt–Wesson, Inc., 103 F.3d 978, 983 (Fed. Cir. 1997).\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 25\n\n\n\nHere, Dr. Rosing’s opinion that the Liberty Meter’s key-\npad may comprise a portion of the cover panel is clearly\nforeclosed by the district court’s claim construction. In\nsuch a situation, the district court is not obligated to\ncredit an expert’s testimony. See TechSearch, L.L.C. v.\nIntel Corp., 286 F.3d 1360, 1372 (Fed. Cir. 2002) (holding\nthat unsupported expert testimony is “insufficient to\navoid summary judgment where the moving party has\nmet its initial burden”). We discern no error in the dis-\ntrict court’s consideration of Dr. Rosing’s report.\n We have considered IPS’s other arguments but do not\nfind them persuasive. We therefore affirm the district\ncourt’s grant of summary judgment of noninfringement of\nclaims 1–9 and 11 of the ’310 patent.\n 2. The ’054 Patent\n IPS also contends in the 1360 Appeal that the district\ncourt’s grant of summary judgment of noninfringement of\nthe ’054 patent was erroneous. Its arguments pertain\nessentially to claim construction. IPS argues that the\ndistrict court construed the term “receivable within,” in\nthe claim limitation “a lower portion [of the parking meter\ndevice] . . . receivable within the housing base” too nar-\nrowly, requiring that the entire lower portion of the\nparking meter device be contained inside the parking\nmeter housing. IPS further argues that the district court\nerroneously construed claim 1 to exclude a potential\nunclaimed “middle portion” of the device between the\nupper and lower portions.\n According to IPS, the district court’s claim construc-\ntion as a whole renders the preferred embodiment outside\nthe scope of claim 1. The card slot and the coin slot (both\nparts of the device itself) cannot be part of the upper\nportion of the device because the upper portion must be\ncovered by the cover panel. But they also cannot be a part\nof the lower portion of the device because they are not\n“receivable within” the housing base as per the district\n\f26 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\ncourt’s claim construction. Instead, they are accessible\nthrough openings in the housing. Thus, either the coin\nslot and card slot comprise a “middle portion” not defined\nby the claims or the specification, or the district court’s\nconstruction of “receivable within” is too narrow.\n DPT responds that the plain meaning of “within” is\n“inside,” and IPS did not choose to modify the term with\nthe words “generally” or “substantially.” Appellee Br. 12–\n13. DPT argues that the district court’s claim construc-\ntion does not actually exclude the preferred embodiment\nbecause the coin slot is still inside the housing base.\nWhile the coin slot of the preferred embodiment is acces-\nsible through an opening in the housing, it does not\nactually protrude through that opening. See ’054 patent\nFig. 6. DPT further argues that prosecution history\nestoppel bars IPS from asserting that claim 1 includes\nparking meter devices that are not entirely contained\nwithin a housing.\n We agree with IPS and conclude that the district\ncourt erred by construing “receivable within” as meaning\n“capable of being contained [entirely] inside.” The district\ncourt construed the term “receivable within” as “capable\nof being contained inside,” ’054 Decision at 5, but upon\napplying the claim construction in its infringement analy-\nsis added a requirement that the “entire” lower portion of\nthe device must be contained within the housing, id. at 8,\neffectively altering the construction to “capable of being\ncontained entirely inside.” Thus, we read the district\ncourt’s claim construction as meaning “capable of being\ncontained [entirely] inside,” but through operation of the\nword “entirely,” this construction is much narrower than\nthe plain meaning of the claim limitation and is unsup-\nported by either the specification or the prosecution\nhistory of the ’054 patent.\n Claim terms must be given the ordinary and custom-\nary meaning that the term would have to a person of\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 27\n\n\n\nordinary skill in the art when read in the context of the\nspecification and prosecution history. Phillips v. AWH\nCorp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). The\nspecification and prosecution history are important to\ninterpreting the claim language. Id. at 1316–17; Trs. of\nColumbia Univ. v. Symantec Corp., 811 F.3d 1359, 1362–\n63 (Fed. Cir. 2016). A “term’s ordinary meaning must be\nconsidered in the context of all the intrinsic evidence,\nincluding the claims, specification, and prosecution histo-\nry.” Biogen Idec, Inc. v. GlaxoSmithKline LLC, 713 F.3d\n1090, 1094 (Fed. Cir. 2013). A patentee is normally\nentitled to the full scope of its claim language, Home\nDiagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358\n(Fed. Cir. 2004), and a departure from this general rule\nmay be warranted only where the patentee either clearly\nsets forth a different definition of a claim term in the\nspecification or disavows the full scope of the claim term\nduring prosecution. See Thorner v. Sony Comput. Entm’t\nAm. LLC, 669 F.3d 1362, 1365–66 (Fed. Cir. 2012).\n A reasonable meaning of the term “receivable within”\nin the context of the ’054 patent is “capable of being\ncontained inside.” Receive, The New Oxford American\nDictionary (2d ed. 2005) (defining “receive” as “to act as a\nreceptacle for” and “receptacle” as “an object or space used\nto contain something”). The suffix “-able” further implies\nthat the lower portion of the device is capable of being\ncontained within the housing base. But this definition\ncontains no limitation to “completely” or “entirely” con-\ntained, nor is there any evidence that persons of skill in\nthe art would understand it to be so limited. Indeed, DPT\nadvertised the Liberty Meter on the basis that it “fits\nwithin” existing parking meter housings. J.A. 8589.\n Likewise, the specification’s sole use of the term “re-\nceivable” does not imply any limitation to devices “entire-\nly” contained by the housing. ’054 patent col. 2 ll. 11–14\n(“The parking meter device in accordance with the inven-\ntion may be receivable in a conventional single space\n\f28 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\nparking meter housing, such as that supplied by Duncan\nIndustries, POM or Mackay.”).\n We also agree with IPS that the district court’s claim\nconstruction excludes the preferred embodiment. The\nspecification defines the coin slot as a part of the lower\nportion, see ’054 patent col. 3 ll. 44–45, even though it is\nnot located “within” the housing base but is instead\naccessible through an opening, id. at Fig. 6. Whether the\ncoin slot “protrudes” or not is beside the point; it is a part\nof the lower portion of the parking meter device but is not\n“capable of being contained [entirely] within” the housing\nbase as required by the district court’s claim construction.\nAs IPS notes, a claim construction that excludes the\npreferred embodiment is highly disfavored. See Vitrionics\nCorp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir.\n1996) (holding that a claim construction that excludes the\npreferred embodiment is “rarely, if ever, correct and\nwould require highly persuasive evidentiary support”).\n DPT argues that the district court’s narrow construc-\ntion is warranted by the prosecution history of the ’054\npatent because IPS disavowed parking meter devices not\nfully enclosed by a housing in its response to an office\naction. DPT specifically contends that by differentiating\nthe prior art on the basis that it discloses an embodiment\nexposed to the elements, rather than one enclosed within\na housing, IPS disavowed parking meter devices not\nentirely enclosed within a housing.\n We note that the district court never relied upon the\n’054 patent’s prosecution history in the ’054 Decision. In\nany case, IPS’s statements fall far short of the disavowal\nDPT urges. IPS distinguished the cited prior art—an\nactual parking meter, not an insertable device—on the\nbasis that it discloses a “self-contained unit,” as opposed\nto the claimed device, which is “a retro-fit upgrade to\nexisting parking meters.” J.A. 1424. Whether IPS was\nwise to use “exposure to the elements” as a point of dis-\n\fDUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC. 29\n\n\n\ntinction is debatable, but IPS’s statements certainly do\nnot amount to clear disavowal of parking meter devices\nnot “completely” or “entirely” contained by a housing nor\ndo we think the prosecution history sheds any light on the\nproper interpretation of the claim.\n We have considered DPT’s other arguments but do not\nfind them persuasive. The claims cannot be limited to a\nparking meter device with a lower portion “entirely”\ncontained by the parking meter housing, and we therefore\nhold that the term “receivable within” should be con-\nstrued as “capable of being contained substantially inside”\nthe housing base. This construction is consistent with the\nplain meaning of the terms, as well as the evidence from\nthe intrinsic record that the inventors aimed to design a\nparking meter device that could practically retrofit an\nexisting parking meter, not to create a device completely\nsealed from the elements.\n Because we agree with IPS that the district court’s\nclaim construction of “receivable within” was erroneous,\nwe vacate the district court’s grant of summary judgment\nof noninfringement of the ’054 patent and remand for\nfurther proceedings consistent with the claim construction\nwe have set forth, including whether DPT’s product\ninfringes under the proper claim construction.\n III. CONCLUSION\n For the foregoing reasons, we reverse the Board’s de-\ncision and hold claims 1–5 and 7–10 of the ’310 patent\nunpatentable as anticipated by the ’054 patent. We\naffirm the district court’s grant of summary judgment of\nnoninfringement of the ’310 patent, vacate its grant of\nsummary judgment of noninfringement of the ’054 patent,\nand remand to the district court for further proceedings\nconsistent with the construction of the ’054 patent claims\nset forth in this opinion.\n REVERSED IN APPEAL NO. 2018-1205\n\f30 DUNCAN PARKING TECHNOLOGIES v. IPS GROUP, INC.\n\n\n\n\n AFFIRMED-IN-PART, VACATED-IN-PART, AND\n REMANDED IN APPEAL NO. 2018-1360\n[END_CASE]",
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4,586,894 | UNITED STATES of America, Appellee, v. Joel SALDAÑA-RIVERA, Defendant, Appellant. | United States v. Saldana-Rivera | 2019-02-01 | 17-1262P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Thompson, Kayatta", "parties": "", "opinions": [{"author": "KAYATTA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1262\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n JOEL SALDAÑA-RIVERA,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n Jessica E. Earl, Assistant Federal Public Defender, with whom\nEric Alexander Vos, Federal Public Defender, Vivianne M. Marrero,\nAssistant Federal Public Defender, Supervisor, Appeals Section,\nand Franco L. Pérez-Redondo, Research and Writing Specialist, were\non brief, for appellant.\n Francisco A. Besosa-Martínez, Assistant United States\nAttorney, with whom Rosa Emilia Rodríguez-Vélez, United States\nAttorney, and Mariana E. Bauzá-Almonte, Assistant United States\nAttorney, Chief, Appellate Division, were on brief, for appellee.\n\n\n February 1, 2019\n\n\n\t\n\f KAYATTA, Circuit Judge. In March 2017, a jury convicted\n\nJoel Saldaña-Rivera (\"Saldaña\") under 18 U.S.C. § 2422(b) of\n\nattempted coercion and enticement of a minor to engage in sexual\n\nactivity for which Saldaña could be charged with sexual assault\n\nunder the laws of Puerto Rico. Saldaña appeals his conviction,\n\narguing that he could not have been charged with sexual assault\n\nunder Puerto Rico law because the person he tried to entice was an\n\nadult federal agent posing as a minor. Saldaña also challenges\n\nthe jury instructions regarding the government's burden of proof.\n\nFor the following reasons, we affirm Saldaña's conviction.\n\n I.\n\n In February 2016, Saldaña, an adult using the moniker\n\n\"Irresistible,\" engaged in an online conversation with an\n\nundercover Department of Homeland Security (\"DHS\") agent. The\n\nagent, using the moniker \"JessiRiv,\" told Saldaña he was an eleven-\n\nyear-old girl. The conversation began in an online chatroom before\n\nmoving to Kik Messenger, a messaging application for mobile devices\n\nthat provides some degree of anonymity to users.\n\n During the conversation, Saldaña sent photographs of\n\nhimself to \"JessiRiv\" and asked her to send photographs back.\n\nSaldaña also asked \"JessiRiv\" where her father was and what she\n\nwas wearing. During the course of their conversation, Saldaña\n\nagreed to meet \"JessiRiv\" in person with the understanding that\n\n\n\n\n - 2 -\n\fthey would go to her parents' house, have sex, and watch\n\npornography.\n\n When Saldaña arrived at the location where he thought he\n\nwould be meeting an eleven-year-old \"JessiRiv,\" he instead met the\n\nDHS agent and other law enforcement officials. After being\n\nMirandized and arrested, Saldaña told the officials that he\n\nbelieved he had been communicating with an eleven-year-old girl\n\nand that he had gone to the meeting location with the intent to\n\nhave sex with her.\n\n Saldaña was indicted with one count of attempted sexual\n\ncoercion and enticement of a minor, in violation of 18 U.S.C.\n\n§ 2422(b). He initially pleaded guilty before a magistrate judge,\n\nbut he withdrew his guilty plea before the district court accepted\n\nthe magistrate judge's report and recommendation. After he moved\n\nunsuccessfully to dismiss the indictment, the case went to trial\n\n\"solely,\" in Saldaña's words, \"to preserve the legal ruling for\n\nappellate review.\"\n\n At trial, the undercover DHS agent, another DHS agent,\n\nand a Puerto Rico Police Department officer testified. The\n\ngovernment also presented screenshots of the conversations between\n\nSaldaña and \"JessiRiv.\" As Saldaña acknowledges, \"the evidence\n\nand testimony of the witnesses went largely uncontested.\" At the\n\nend of the government's case, Saldaña moved under Rule 29 for a\n\n\n\n\n - 3 -\n\fjudgment of acquittal, which the district court denied. See Fed.\n\nR. Crim. P. 29.\n\n The jury found Saldaña guilty of violating\n\nsection 2422(b). The district court sentenced Saldaña to 120\n\nmonths' imprisonment, the statutory minimum, to be followed by\n\nfifteen years of supervised release. Saldaña now appeals.\n\n II.\n\n A.\n\n The federal coercion-and-enticement-of-a-minor statute,\n\nsection 2422(b), provides:\n\n Whoever, using the mail or any facility or means of\n interstate or foreign commerce, . . . knowingly\n persuades, induces, entices, or coerces any individual\n who has not attained the age of 18 years, to engage in\n . . . any sexual activity for which any person can be\n charged with a criminal offense, or attempts to do so,\n shall be fined under this title and imprisoned not less\n than 10 years or for life.\n\n18 U.S.C. § 2422(b).\n\n A conviction under section 2422(b) for attempting to\n\nentice a minor to engage in sexual activity plainly requires that\n\nthe attempted sexual activity be activity \"for which any person\n\ncan be charged with a [crime].\" Id. And chargeable sexual\n\nactivity includes crimes defined by state law. United States v.\n\nDwinells, 508 F.3d 63, 72 (1st Cir. 2007). In this case, the\n\ngovernment asserted that the sexual activity that Saldaña sought\n\n\n\n\n - 4 -\n\fcould have been charged as a crime under Article 130 of the Puerto\n\nRico Penal Code, which states:\n\n [A]ny person who purposely, knowingly, or recklessly\n carries out . . . an oral/genital act or vaginal act or\n anal sexual penetration, whether genital, digital, or\n instrumental . . . if the victim at the time of the\n offense had not reached 16 years of age [shall be\n punished in accordance with the remainder of the Code].\n\nSee P.R. Laws Ann. tit. 33, § 5191(a).1\n\n Saldaña counters that, given the actual facts, he could\n\nnot have been charged under Article 130 because Article 130 only\n\ncriminalizes sex with an actual minor, and Puerto Rico law (he\n\nsays) does not criminalize an attempt to commit a crime where\n\nsuccess is factually impossible. The government concedes the\n\nformer point and disputes the latter. Neither party, though,\n\nrefers us to any Puerto Rican case law on the latter point. And\n\nit is not clear why Puerto Rico's attempt statute, which appears\n\nto prohibit factual impossibility as a defense, would not apply to\n\nArticle 130.2 Regardless, for purposes of this appeal, we will\n\nassume without deciding that Saldaña could not have been charged\n\n\n 1 The statute is drafted in Spanish. Both parties agree on\nthis English translation, which mirrors the instruction the\ndistrict court gave to the jury.\n 2 Puerto Rico law defines attempt as existing \"when the person\n\nacts with the purpose of producing the crime or with knowledge\nthat the crime would be produced, and the person performs\nunequivocal actions directed to the consummation of a crime that\nit is not consummated due to circumstances not of its own will.\"\nP.R. Laws Ann. tit. 33, § 5048. We rely on a certified English\ntranslation that the government submitted to the district court\nand was included in the appendix on appeal.\n\n\n - 5 -\n\fwith any crime under Article 130 because he was not communicating\n\nwith a minor.\n\n This assumption nevertheless does not provide the\n\nexculpation Saldaña seeks. Nothing in the language of\n\nsection 2422(b) requires the government to show that Saldaña\n\nhimself could have been charged under Article 130. Rather,\n\ncriminal liability arises under section 2422(b) if a defendant\n\n\"attempts\" \"to engage in any sexual activity for which any person\n\ncan be charged.\" We therefore look to Commonwealth law not to see\n\nif Saldaña could have been charged under that law, but rather to\n\nsee if any adult who engages in the sexual activity in which\n\nSaldaña attempted to engage could be charged. Answering this\n\nquestion requires that we pick the proper perspective for defining\n\nthe \"sexual activity\" in which Saldaña sought to engage. Do we\n\nassay the facts objectively, as they actually existed? If so,\n\nthen one could say that, in fact, Saldaña was seeking to have sex\n\nwith an adult Homeland Security agent. Or do we define the facts\n\nsubjectively, from Saldaña's perspective? If so, then clearly he\n\nwas attempting to have sex with a child, an activity plainly\n\nprohibited by Puerto Rico law. Two reasons point to the subjective\n\nperspective.\n\n\n\n\n - 6 -\n\f First, \"attempt\" crimes under federal law3 train our\n\nattention on the defendant's \"intention to commit the substantive\n\noffense.\" United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011)\n\n(citing United States v. Burgos, 254 F.3d 8, 12 (1st Cir. 2001)).\n\n Second, while conviction for an attempted offense under\n\nfederal law also requires evidence that the defendant in fact took\n\na \"substantial step towards\" the commission of the offenses (here,\n\nfor example, going to the assigned meeting), id., we have rejected\n\nfactual impossibility as a defense to an attempt crime, albeit in\n\nthe context of a different substantive offense, see United States\n\nv. Dixon, 449 F.3d 194, 201-202 (1st Cir. 2006) (holding that\n\nfactual impossibility is not a defense against liability for\n\nattempted use of the mails to deliver a communication containing\n\na threat to injure the addressee); United States v. Mehanna, 735\n\nF.3d 32, 53 (1st Cir. 2013). We see no reason not to take the\n\nsame position in connection with this particular attempt crime.\n\nAnd our sister circuits have so far, without exception, taken just\n\nsuch a position in refusing to read section 2422(b) as requiring\n\nthe government to prove that the attempt could in fact have\n\nresulted in unlawful sexual activity with a minor. See United\n\nStates v. Tykarsky, 446 F.3d 458, 465-69 (3d Cir. 2006) (so holding\n\n\n 3 There is no general federal \"attempt\" crime, but federal\nlaw criminalizes the attempt of many specific crimes, including\nsection 2422(b). See, e.g., 21 U.S.C. § 846 (drugs); 18 U.S.C.\n§ 1113 (murder/manslaughter); 18 U.S.C. § 1349 (fraud).\n\n\n - 7 -\n\fand collecting cases); see also United States v. Jockisch, 857\n\nF.3d 1122, 1129 (11th Cir.), cert. denied, 138 S. Ct. 284 (2017);\n\nUnited States v. Hart, 635 F.3d 850, 855 (6th Cir. 2011); United\n\nStates v. Mannava, 565 F.3d 412, 416 (7th Cir. 2009); United States\n\nv. Gagliardi, 506 F.3d 140, 145-147 (2d Cir. 2007); United States\n\nv. Helder, 452 F.3d 751, 753-56 (8th Cir. 2006); United States v.\n\nSims, 428 F.3d 945, 959-60 (10th Cir. 2005); United States v. Meek,\n\n366 F.3d 705, 717-720 (9th Cir. 2004); United States v. Farner,\n\n251 F.3d 510, 513 (5th Cir. 2001).4\n\n Saldaña points out that in several instances federal\n\ncourts have upheld convictions under section 2422(b) by pointing\n\nout that the applicable state law (unlike, we assume, the\n\nCommonwealth's law) criminalized not just the act of having sex\n\nwith a minor, but also the attempt to do so. See, e.g., Mannava,\n\n565 F.3d at 416; United States v. Kaye, 243 Fed. Appx. 763, 766\n\n(4th Cir. 2007). Saldaña would have us read these cases as\n\nimplying that the result would have been different in those cases\n\nhad the applicable state law not itself criminalized attempts. We\n\n\n\n\n 4As some of our sister courts have acknowledged, holding\notherwise would prevent law enforcement from using sting\noperations and decoys to police the criminal coercion and\npersuasion of minors for sex. See, e.g., Gagliardi, 506 F.3d at\n146-47; Tykarsky, 446 F.3d at 468; Meek, 366 F.3d at 719. These\ncommon practices have led to convictions that we have upheld. See,\ne.g., United States v. Hinkel, 837 F.3d 111, 115-16 (1st Cir.\n2016), cert. denied, 137 S. Ct. 1106 (2017); United States v.\nDwinells, 508 F.3d 63, 65-67 (1st Cir. 2007).\n\n\n - 8 -\n\fdisagree. The courts in those cases chose to rest on obviously\n\nsufficient grounds for affirmance without suggesting that other\n\ngrounds were also not available. And this is not an issue upon\n\nwhich a court would likely rule only by implication bereft of any\n\nanalysis and against the unanimous weight of authority. Saldaña\n\nalso cites United States v. Tello, 600 F.3d 1161 (9th Cir. 2010),\n\nbut in that case the court actually confirmed (though without\n\nrelevant discussion) a conviction under section 2422(b) for a\n\nsimilar, factually impossible attempt.\n\n Having read the statutory text and surveyed the case\n\nlaw, including the comprehensive analysis set forth in Tykarsky,\n\nwe see no reason to chart a minority path. The sexual activity\n\nattempted by Saldaña was sex with an eleven-year-old girl; and sex\n\nwith an eleven-year-old girl is sexual activity for which he could\n\nhave been charged with a crime under Puerto Rico law. The district\n\ncourt therefore did not err in denying Saldaña's Rule 29 motion\n\nfor a judgment of acquittal.\n\n III.\n\n Saldaña challenges the jury instructions on two grounds.\n\nHis first argument -- that the district court erred by failing to\n\ninstruct the jury that an actual minor was required to convict\n\nunder section 2422(b) -- fails for the reasons discussed above.\n\n Saldaña's second argument arises out of the fact that\n\nsection 2422(b) requires that the sexual activity the defendant\n\n\n - 9 -\n\fsought to bring about be \"sexual activity for which any person can\n\nbe charged with a criminal offense.\" One might literally read\n\nthat language as including suspicious but nevertheless lawful\n\nconduct that might furnish probable cause for an indictment. See\n\nMannava, 565 F.3d at 416 (\"Indeed, read literally,\n\n[section 2422(b)] would make it a federal offense to engage in\n\nconduct that created only probable cause to think that one had\n\ncommitted a criminal offense, since probable cause is all that is\n\nrequired to charge someone with an offense.\"). For example, there\n\nmight be probable cause to indict under Article 130, but\n\ninsufficient evidence to convict, a defendant who plausibly claims\n\nthat his sexually explicit, coercive messages to a minor were the\n\nresult of intimidation or violence sufficient to negate the\n\nrequisite criminal intent. See P.R. Laws Ann. tit. 33, § 5045\n\n(listing exclusions from criminal liability). Not surprisingly,\n\nthe Seventh Circuit has eschewed this arguably literal reading of\n\nsection 2422(b). See Mannava, 565 F.3d at 416 (\"That would be a\n\ngood example of an interpretation that, though literally correct\n\n-- though dictated by 'plain meaning' -- was absurd, and therefore\n\nerroneous.\").\n\n In this case, the district court pretty much tracked the\n\nstatutory language literally when instructing the jurors on the\n\n\n\n\n - 10 -\n\fgovernment's burden.5 That normally quite prudent approach created\n\na risk with this particular statute that jurors might construe the\n\nlanguage as requiring only that the sexual activity be chargeable\n\nrather than criminally unlawful. The accompanying instructions\n\nroutinely given in federal criminal trials can increase this risk.\n\nSuch instructions often warn jurors not to place weight on the\n\nfact that the government indicted the defendant for the federal\n\noffense being tried. The court will explain (as in this very case)\n\nthat there only need be \"probable cause,\" a \"very low standard of\n\nproof,\" to justify \"a charge.\" So one can see how jurors might\n\npiece together the wrong conclusion that the facts concerning the\n\nnature of the attempted sexual activity need only provide probable\n\ncause to support a charge under Article 130. All in all, this is\n\none of those unusual instances in which a paraphrase of the statute\n\n-- as requiring that the sexual activity be a crime -- would have\n\nbeen far preferable. See, e.g., Nancy Torresen, 2018 Revisions to\n\nPattern Criminal Jury Instructions for the District Courts of the\n\nFirst Circuit (2018), http://www.med.uscourts.gov/pdf/crpjilinks.pdf\n\n\n\n\n5 The district court instructed:\n\n For the government to prove Mr. Saldaña guilty of this\n crime and for you to find that the government proved\n this case beyond a reasonable doubt the United States\n must prove . . . that if a sexual activity had occurred\n Mr. Saldaña could have been charged with a criminal\n offense under the laws of the United States and Puerto\n Rico.\n\n\n - 11 -\n\f(tracking the statute but then instructing that jurors must find\n\nbeyond a reasonable doubt \"that the sexual activity was a criminal\n\noffense\"); Pattern Criminal Jury Instructions of the Seventh\n\nCircuit 630 (2012 ed.), http://www.ca7.uscourts.gov/pattern-jury-\n\ninstructions/7th_criminal_jury_instr.doc (instructing that, \"if\n\nthe sexual activity had occurred,\" the defendant \"would have\n\ncommitted the criminal offense\"); see also United States v. Lundy,\n\n676 F.3d 444, 450-51 (5th Cir. 2012) (affirming the instruction\n\nthat the government must prove that the defendant \"attempted to\n\npersuade, induce or entice a minor to engage in some form of\n\nunlawful sexual activity\" (emphasis added)).\n\n Saldaña, though, did not object to the district court's\n\ninstruction, likely because his lawyer did not construe the\n\ninstruction in the arguably literal -- but incorrect -- manner we\n\nacknowledge could be possible. So we review this whole issue only\n\nfor plain error, which requires among other things that there be\n\nclear error that \"affected [Saldaña's] substantial rights.\"\n\nUnited States v. Vicente, 909 F.3d 20, 23 (1st Cir. 2018) (quoting\n\nUnited States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). In\n\nother words, he need \"'show a reasonable probability that, but for\n\nthe error,' the outcome of the proceeding would have been\n\ndifferent.\" Molina-Martinez v. United States, 136 S. Ct. 1338,\n\n1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S.\n\n74, 76 (2004)). Saldaña cannot make this showing because the\n\n\n - 12 -\n\fevidence of his guilt was overwhelming. He did not even contest\n\nthat he sought sex with an eleven-year-old. And no juror could\n\nreasonably construe such activity as anything other than unlawful\n\nunder Article 130.\n\n IV.\n\n For the foregoing reasons, we affirm Saldaña's\n\nconviction under 18 U.S.C. § 2422(b).\n\n\n\n\n - 13 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364147/", "author_raw": "KAYATTA, Circuit Judge"}]} | TORRUELLA | THOMPSON | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4586894/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Joel SALDAÑA-RIVERA, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-1262\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n JOEL SALDAÑA-RIVERA,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n Jessica E. Earl, Assistant Federal Public Defender, with whom\nEric Alexander Vos, Federal Public Defender, Vivianne M. Marrero,\nAssistant Federal Public Defender, Supervisor, Appeals Section,\nand Franco L. Pérez-Redondo, Research and Writing Specialist, were\non brief, for appellant.\n Francisco A. Besosa-Martínez, Assistant United States\nAttorney, with whom Rosa Emilia Rodríguez-Vélez, United States\nAttorney, and Mariana E. Bauzá-Almonte, Assistant United States\nAttorney, Chief, Appellate Division, were on brief, for appellee.\n\n\n February 1, 2019\n\n\n\t\n\f KAYATTA, Circuit Judge. In March 2017, a jury convicted\n\nJoel Saldaña-Rivera (\"Saldaña\") under 18 U.S.C. § 2422(b) of\n\nattempted coercion and enticement of a minor to engage in sexual\n\nactivity for which Saldaña could be charged with sexual assault\n\nunder the laws of Puerto Rico. Saldaña appeals his conviction,\n\narguing that he could not have been charged with sexual assault\n\nunder Puerto Rico law because the person he tried to entice was an\n\nadult federal agent posing as a minor. Saldaña also challenges\n\nthe jury instructions regarding the government's burden of proof.\n\nFor the following reasons, we affirm Saldaña's conviction.\n\n I.\n\n In February 2016, Saldaña, an adult using the moniker\n\n\"Irresistible,\" engaged in an online conversation with an\n\nundercover Department of Homeland Security (\"DHS\") agent. The\n\nagent, using the moniker \"JessiRiv,\" told Saldaña he was an eleven-\n\nyear-old girl. The conversation began in an online chatroom before\n\nmoving to Kik Messenger, a messaging application for mobile devices\n\nthat provides some degree of anonymity to users.\n\n During the conversation, Saldaña sent photographs of\n\nhimself to \"JessiRiv\" and asked her to send photographs back.\n\nSaldaña also asked \"JessiRiv\" where her father was and what she\n\nwas wearing. During the course of their conversation, Saldaña\n\nagreed to meet \"JessiRiv\" in person with the understanding that\n\n\n\n\n - 2 -\n\fthey would go to her parents' house, have sex, and watch\n\npornography.\n\n When Saldaña arrived at the location where he thought he\n\nwould be meeting an eleven-year-old \"JessiRiv,\" he instead met the\n\nDHS agent and other law enforcement officials. After being\n\nMirandized and arrested, Saldaña told the officials that he\n\nbelieved he had been communicating with an eleven-year-old girl\n\nand that he had gone to the meeting location with the intent to\n\nhave sex with her.\n\n Saldaña was indicted with one count of attempted sexual\n\ncoercion and enticement of a minor, in violation of 18 U.S.C.\n\n§ 2422(b). He initially pleaded guilty before a magistrate judge,\n\nbut he withdrew his guilty plea before the district court accepted\n\nthe magistrate judge's report and recommendation. After he moved\n\nunsuccessfully to dismiss the indictment, the case went to trial\n\n\"solely,\" in Saldaña's words, \"to preserve the legal ruling for\n\nappellate review.\"\n\n At trial, the undercover DHS agent, another DHS agent,\n\nand a Puerto Rico Police Department officer testified. The\n\ngovernment also presented screenshots of the conversations between\n\nSaldaña and \"JessiRiv.\" As Saldaña acknowledges, \"the evidence\n\nand testimony of the witnesses went largely uncontested.\" At the\n\nend of the government's case, Saldaña moved under Rule 29 for a\n\n\n\n\n - 3 -\n\fjudgment of acquittal, which the district court denied. See Fed.\n\nR. Crim. P. 29.\n\n The jury found Saldaña guilty of violating\n\nsection 2422(b). The district court sentenced Saldaña to 120\n\nmonths' imprisonment, the statutory minimum, to be followed by\n\nfifteen years of supervised release. Saldaña now appeals.\n\n II.\n\n A.\n\n The federal coercion-and-enticement-of-a-minor statute,\n\nsection 2422(b), provides:\n\n Whoever, using the mail or any facility or means of\n interstate or foreign commerce, . . . knowingly\n persuades, induces, entices, or coerces any individual\n who has not attained the age of 18 years, to engage in\n . . . any sexual activity for which any person can be\n charged with a criminal offense, or attempts to do so,\n shall be fined under this title and imprisoned not less\n than 10 years or for life.\n\n18 U.S.C. § 2422(b).\n\n A conviction under section 2422(b) for attempting to\n\nentice a minor to engage in sexual activity plainly requires that\n\nthe attempted sexual activity be activity \"for which any person\n\ncan be charged with a [crime].\" Id. And chargeable sexual\n\nactivity includes crimes defined by state law. United States v.\n\nDwinells, 508 F.3d 63, 72 (1st Cir. 2007). In this case, the\n\ngovernment asserted that the sexual activity that Saldaña sought\n\n\n\n\n - 4 -\n\fcould have been charged as a crime under Article 130 of the Puerto\n\nRico Penal Code, which states:\n\n [A]ny person who purposely, knowingly, or recklessly\n carries out . . . an oral/genital act or vaginal act or\n anal sexual penetration, whether genital, digital, or\n instrumental . . . if the victim at the time of the\n offense had not reached 16 years of age [shall be\n punished in accordance with the remainder of the Code].\n\nSee P.R. Laws Ann. tit. 33, § 5191(a).1\n\n Saldaña counters that, given the actual facts, he could\n\nnot have been charged under Article 130 because Article 130 only\n\ncriminalizes sex with an actual minor, and Puerto Rico law (he\n\nsays) does not criminalize an attempt to commit a crime where\n\nsuccess is factually impossible. The government concedes the\n\nformer point and disputes the latter. Neither party, though,\n\nrefers us to any Puerto Rican case law on the latter point. And\n\nit is not clear why Puerto Rico's attempt statute, which appears\n\nto prohibit factual impossibility as a defense, would not apply to\n\nArticle 130.2 Regardless, for purposes of this appeal, we will\n\nassume without deciding that Saldaña could not have been charged\n\n\n 1 The statute is drafted in Spanish. Both parties agree on\nthis English translation, which mirrors the instruction the\ndistrict court gave to the jury.\n 2 Puerto Rico law defines attempt as existing \"when the person\n\nacts with the purpose of producing the crime or with knowledge\nthat the crime would be produced, and the person performs\nunequivocal actions directed to the consummation of a crime that\nit is not consummated due to circumstances not of its own will.\"\nP.R. Laws Ann. tit. 33, § 5048. We rely on a certified English\ntranslation that the government submitted to the district court\nand was included in the appendix on appeal.\n\n\n - 5 -\n\fwith any crime under Article 130 because he was not communicating\n\nwith a minor.\n\n This assumption nevertheless does not provide the\n\nexculpation Saldaña seeks. Nothing in the language of\n\nsection 2422(b) requires the government to show that Saldaña\n\nhimself could have been charged under Article 130. Rather,\n\ncriminal liability arises under section 2422(b) if a defendant\n\n\"attempts\" \"to engage in any sexual activity for which any person\n\ncan be charged.\" We therefore look to Commonwealth law not to see\n\nif Saldaña could have been charged under that law, but rather to\n\nsee if any adult who engages in the sexual activity in which\n\nSaldaña attempted to engage could be charged. Answering this\n\nquestion requires that we pick the proper perspective for defining\n\nthe \"sexual activity\" in which Saldaña sought to engage. Do we\n\nassay the facts objectively, as they actually existed? If so,\n\nthen one could say that, in fact, Saldaña was seeking to have sex\n\nwith an adult Homeland Security agent. Or do we define the facts\n\nsubjectively, from Saldaña's perspective? If so, then clearly he\n\nwas attempting to have sex with a child, an activity plainly\n\nprohibited by Puerto Rico law. Two reasons point to the subjective\n\nperspective.\n\n\n\n\n - 6 -\n\f First, \"attempt\" crimes under federal law3 train our\n\nattention on the defendant's \"intention to commit the substantive\n\noffense.\" United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011)\n\n(citing United States v. Burgos, 254 F.3d 8, 12 (1st Cir. 2001)).\n\n Second, while conviction for an attempted offense under\n\nfederal law also requires evidence that the defendant in fact took\n\na \"substantial step towards\" the commission of the offenses (here,\n\nfor example, going to the assigned meeting), id., we have rejected\n\nfactual impossibility as a defense to an attempt crime, albeit in\n\nthe context of a different substantive offense, see United States\n\nv. Dixon, 449 F.3d 194, 201-202 (1st Cir. 2006) (holding that\n\nfactual impossibility is not a defense against liability for\n\nattempted use of the mails to deliver a communication containing\n\na threat to injure the addressee); United States v. Mehanna, 735\n\nF.3d 32, 53 (1st Cir. 2013). We see no reason not to take the\n\nsame position in connection with this particular attempt crime.\n\nAnd our sister circuits have so far, without exception, taken just\n\nsuch a position in refusing to read section 2422(b) as requiring\n\nthe government to prove that the attempt could in fact have\n\nresulted in unlawful sexual activity with a minor. See United\n\nStates v. Tykarsky, 446 F.3d 458, 465-69 (3d Cir. 2006) (so holding\n\n\n 3 There is no general federal \"attempt\" crime, but federal\nlaw criminalizes the attempt of many specific crimes, including\nsection 2422(b). See, e.g., 21 U.S.C. § 846 (drugs); 18 U.S.C.\n§ 1113 (murder/manslaughter); 18 U.S.C. § 1349 (fraud).\n\n\n - 7 -\n\fand collecting cases); see also United States v. Jockisch, 857\n\nF.3d 1122, 1129 (11th Cir.), cert. denied, 138 S. Ct. 284 (2017);\n\nUnited States v. Hart, 635 F.3d 850, 855 (6th Cir. 2011); United\n\nStates v. Mannava, 565 F.3d 412, 416 (7th Cir. 2009); United States\n\nv. Gagliardi, 506 F.3d 140, 145-147 (2d Cir. 2007); United States\n\nv. Helder, 452 F.3d 751, 753-56 (8th Cir. 2006); United States v.\n\nSims, 428 F.3d 945, 959-60 (10th Cir. 2005); United States v. Meek,\n\n366 F.3d 705, 717-720 (9th Cir. 2004); United States v. Farner,\n\n251 F.3d 510, 513 (5th Cir. 2001).4\n\n Saldaña points out that in several instances federal\n\ncourts have upheld convictions under section 2422(b) by pointing\n\nout that the applicable state law (unlike, we assume, the\n\nCommonwealth's law) criminalized not just the act of having sex\n\nwith a minor, but also the attempt to do so. See, e.g., Mannava,\n\n565 F.3d at 416; United States v. Kaye, 243 Fed. Appx. 763, 766\n\n(4th Cir. 2007). Saldaña would have us read these cases as\n\nimplying that the result would have been different in those cases\n\nhad the applicable state law not itself criminalized attempts. We\n\n\n\n\n 4As some of our sister courts have acknowledged, holding\notherwise would prevent law enforcement from using sting\noperations and decoys to police the criminal coercion and\npersuasion of minors for sex. See, e.g., Gagliardi, 506 F.3d at\n146-47; Tykarsky, 446 F.3d at 468; Meek, 366 F.3d at 719. These\ncommon practices have led to convictions that we have upheld. See,\ne.g., United States v. Hinkel, 837 F.3d 111, 115-16 (1st Cir.\n2016), cert. denied, 137 S. Ct. 1106 (2017); United States v.\nDwinells, 508 F.3d 63, 65-67 (1st Cir. 2007).\n\n\n - 8 -\n\fdisagree. The courts in those cases chose to rest on obviously\n\nsufficient grounds for affirmance without suggesting that other\n\ngrounds were also not available. And this is not an issue upon\n\nwhich a court would likely rule only by implication bereft of any\n\nanalysis and against the unanimous weight of authority. Saldaña\n\nalso cites United States v. Tello, 600 F.3d 1161 (9th Cir. 2010),\n\nbut in that case the court actually confirmed (though without\n\nrelevant discussion) a conviction under section 2422(b) for a\n\nsimilar, factually impossible attempt.\n\n Having read the statutory text and surveyed the case\n\nlaw, including the comprehensive analysis set forth in Tykarsky,\n\nwe see no reason to chart a minority path. The sexual activity\n\nattempted by Saldaña was sex with an eleven-year-old girl; and sex\n\nwith an eleven-year-old girl is sexual activity for which he could\n\nhave been charged with a crime under Puerto Rico law. The district\n\ncourt therefore did not err in denying Saldaña's Rule 29 motion\n\nfor a judgment of acquittal.\n\n III.\n\n Saldaña challenges the jury instructions on two grounds.\n\nHis first argument -- that the district court erred by failing to\n\ninstruct the jury that an actual minor was required to convict\n\nunder section 2422(b) -- fails for the reasons discussed above.\n\n Saldaña's second argument arises out of the fact that\n\nsection 2422(b) requires that the sexual activity the defendant\n\n\n - 9 -\n\fsought to bring about be \"sexual activity for which any person can\n\nbe charged with a criminal offense.\" One might literally read\n\nthat language as including suspicious but nevertheless lawful\n\nconduct that might furnish probable cause for an indictment. See\n\nMannava, 565 F.3d at 416 (\"Indeed, read literally,\n\n[section 2422(b)] would make it a federal offense to engage in\n\nconduct that created only probable cause to think that one had\n\ncommitted a criminal offense, since probable cause is all that is\n\nrequired to charge someone with an offense.\"). For example, there\n\nmight be probable cause to indict under Article 130, but\n\ninsufficient evidence to convict, a defendant who plausibly claims\n\nthat his sexually explicit, coercive messages to a minor were the\n\nresult of intimidation or violence sufficient to negate the\n\nrequisite criminal intent. See P.R. Laws Ann. tit. 33, § 5045\n\n(listing exclusions from criminal liability). Not surprisingly,\n\nthe Seventh Circuit has eschewed this arguably literal reading of\n\nsection 2422(b). See Mannava, 565 F.3d at 416 (\"That would be a\n\ngood example of an interpretation that, though literally correct\n\n-- though dictated by 'plain meaning' -- was absurd, and therefore\n\nerroneous.\").\n\n In this case, the district court pretty much tracked the\n\nstatutory language literally when instructing the jurors on the\n\n\n\n\n - 10 -\n\fgovernment's burden.5 That normally quite prudent approach created\n\na risk with this particular statute that jurors might construe the\n\nlanguage as requiring only that the sexual activity be chargeable\n\nrather than criminally unlawful. The accompanying instructions\n\nroutinely given in federal criminal trials can increase this risk.\n\nSuch instructions often warn jurors not to place weight on the\n\nfact that the government indicted the defendant for the federal\n\noffense being tried. The court will explain (as in this very case)\n\nthat there only need be \"probable cause,\" a \"very low standard of\n\nproof,\" to justify \"a charge.\" So one can see how jurors might\n\npiece together the wrong conclusion that the facts concerning the\n\nnature of the attempted sexual activity need only provide probable\n\ncause to support a charge under Article 130. All in all, this is\n\none of those unusual instances in which a paraphrase of the statute\n\n-- as requiring that the sexual activity be a crime -- would have\n\nbeen far preferable. See, e.g., Nancy Torresen, 2018 Revisions to\n\nPattern Criminal Jury Instructions for the District Courts of the\n\nFirst Circuit (2018), http://www.med.uscourts.gov/pdf/crpjilinks.pdf\n\n\n\n\n5 The district court instructed:\n\n For the government to prove Mr. Saldaña guilty of this\n crime and for you to find that the government proved\n this case beyond a reasonable doubt the United States\n must prove . . . that if a sexual activity had occurred\n Mr. Saldaña could have been charged with a criminal\n offense under the laws of the United States and Puerto\n Rico.\n\n\n - 11 -\n\f(tracking the statute but then instructing that jurors must find\n\nbeyond a reasonable doubt \"that the sexual activity was a criminal\n\noffense\"); Pattern Criminal Jury Instructions of the Seventh\n\nCircuit 630 (2012 ed.), http://www.ca7.uscourts.gov/pattern-jury-\n\ninstructions/7th_criminal_jury_instr.doc (instructing that, \"if\n\nthe sexual activity had occurred,\" the defendant \"would have\n\ncommitted the criminal offense\"); see also United States v. Lundy,\n\n676 F.3d 444, 450-51 (5th Cir. 2012) (affirming the instruction\n\nthat the government must prove that the defendant \"attempted to\n\npersuade, induce or entice a minor to engage in some form of\n\nunlawful sexual activity\" (emphasis added)).\n\n Saldaña, though, did not object to the district court's\n\ninstruction, likely because his lawyer did not construe the\n\ninstruction in the arguably literal -- but incorrect -- manner we\n\nacknowledge could be possible. So we review this whole issue only\n\nfor plain error, which requires among other things that there be\n\nclear error that \"affected [Saldaña's] substantial rights.\"\n\nUnited States v. Vicente, 909 F.3d 20, 23 (1st Cir. 2018) (quoting\n\nUnited States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). In\n\nother words, he need \"'show a reasonable probability that, but for\n\nthe error,' the outcome of the proceeding would have been\n\ndifferent.\" Molina-Martinez v. United States, 136 S. Ct. 1338,\n\n1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S.\n\n74, 76 (2004)). Saldaña cannot make this showing because the\n\n\n - 12 -\n\fevidence of his guilt was overwhelming. He did not even contest\n\nthat he sought sex with an eleven-year-old. And no juror could\n\nreasonably construe such activity as anything other than unlawful\n\nunder Article 130.\n\n IV.\n\n For the foregoing reasons, we affirm Saldaña's\n\nconviction under 18 U.S.C. § 2422(b).\n\n\n\n\n - 13 -\n[END_CASE]",
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4,588,103 | THOMAS & BETTS CORPORATION, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee, v. NEW ALBERTSON'S, INC., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellee, Alfa Laval Inc.; Boston Renaissance Charter Public School; Boston Renaissance Charter School, Inc.; Siemens Industry, Inc.; Allis-Chalmers Energy, Inc.; Dampney Company, Inc., Third-Party Defendants, Appellees/Cross-Appellants/Cross-Appellees, Jeanette Yukon, as General Partner of Yukon/Hyde Park Avenue Limited Partnership; Jewel Food Stores, Inc.; Star Markets Company; Hyde Park Manager, Inc., as Administrative Trustee for W/S Cardinal Hyde Park-MA Trust; Dampney Company, Inc., Third-Party Defendants, Appellees/Cross-Appellees. Thomas & Betts Corporation, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee, v. New Albertson's, Inc., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant, Alfa Laval Inc.; Boston Renaissance Charter Public School; Boston Renaissance Charter School, Inc.; Siemens Industry Inc.; Allis-Chalmers Energy, Inc.; Dampney Company, Inc., Third-Party Defendants, Appellees. | Thomas & Betts Corporation v. Alfa Laval, Inc. | 2019-02-06 | 16-1133P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Selya, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNos. 16-1133, 16-1134, 16-1189, 16-1204\n\n THOMAS & BETTS CORPORATION,\n\n Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,\n\n v.\n\n NEW ALBERTSON'S, INC.,\n\n Defendant/Third-Party Plaintiff, Appellee/Cross-Appellee,\n\n ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL;\n BOSTON RENAISSANCE CHARTER SCHOOL, INC.;\n SIEMENS INDUSTRY, INC.; ALLIS-CHALMERS ENERGY, INC.;\n DAMPNEY COMPANY, INC.,\n\n Third-Party Defendants, Appellees/Cross-Appellants/Cross-\n Appellees,\n\n JEANETTE YUKON, as General Partner of Yukon/Hyde Park Avenue\n Limited Partnership; JEWEL FOOD STORES, INC.; STAR MARKETS\n COMPANY; HYDE PARK MANAGER, INC., as Administrative Trustee for\n W/S Cardinal Hyde Park-MA Trust; DAMPNEY COMPANY, INC.,\n\n Third-Party Defendants, Appellees/Cross-Appellees.\n\n\nNos. 17-1360, 17-1361\n\n THOMAS & BETTS CORPORATION,\n\n Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,\n\n v.\n\n NEW ALBERTSON'S, INC.,\n\n Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant,\n\f ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL;\n BOSTON RENAISSANCE CHARTER SCHOOL, INC.;\n SIEMENS INDUSTRY INC.; ALLIS-CHALMERS ENERGY, INC.;\n DAMPNEY COMPANY, INC.,\n\n Third-Party Defendants, Appellees.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. William G. Young, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Selya and Barron, Circuit Judges.\n\n\n Howard Merten, with whom Paul M. Kessimian, Robert K. Taylor,\nand Partridge, Snow, & Hahn LLP were on brief for appellant/ cross-\nappellee.\n C. Dylan Sanders, with whom Lisa C. Goodheart and Sugarman,\nRogers, Barshak, and Cohen, P.C. were on brief for New Albertson's,\nInc.; Jewel Food Stores, Inc.; Star Markets Company, Inc.; and\nHyde Park Manager, Inc.\n Jonathon C. Burwood, with whom Hinshaw and Culbertson LLP\nwere on brief for Alfa Laval, Inc.\n John T. Harding, with whom Lewis, Brisbois, Bisgaard, & Smith\nLLP were on brief for appellee/cross-appellant Boston Renaissance\nCharter School, Inc. and Boston Renaissance Charter Public School.\n Eric L. Klein, with whom Marc J. Goldstein, Brook Detterman,\nand Beveridge & Diamond, P.C. were on brief for Siemens Industry,\nInc. and Allis-Chalmers Energy, Inc.\n A. Neil Hartzell, with whom LeClair Ryan, A Professional\nCorporation were on brief for Jeanette Yukon.\n Carolyn M. Miller, with whom Matthew C. Welnicki and Melick\n& Porter, P.C. were on brief for Dampney Company, Inc.\n\n\n February 6, 2019\n\f BARRON, Circuit Judge. In 2007, at the direction of the\n\nMassachusetts Department of the Environment (\"MassDEP\"), an\n\nextensive cleanup of Mother Brook, a canal in Boston,\n\nMassachusetts, began following its contamination by\n\npolychlorinated biphenyls (\"PCBs\"). The cleanup ultimately\n\nresulted in a 2010 lawsuit in which two parties -- Thomas & Betts\n\nand New Albertson's -- brought Massachusetts law claims in the\n\nUnited States District Court for the District of Massachusetts\n\nagainst each other and various third parties. The claims, which\n\nwere primarily brought under § 4 of Chapter 21E, see Mass. Gen.\n\nLaws ch. 21E, § 4, sought reimbursement for the money that Thomas\n\n& Betts and New Albertson's each had spent on the cleanup.\n\n After a lengthy trial, a jury rendered a special verdict.\n\nThe jury found, among other things, that Thomas & Betts was \"liable\n\nto\" New Albertson's under § 4 of Chapter 21E for a portion of what\n\nare known as the response costs that New Albertson's had incurred\n\nin connection with the cleanup of the canal. The jury also found\n\nthat other parties (but not New Albertson's) were \"liable to\"\n\nThomas & Betts under § 4 of Chapter 21E for various portions of\n\nthe response costs that it had incurred in the cleanup. The jury\n\nthen allocated the percentage of the response costs that each of\n\nthe various parties were responsible for reimbursing to,\n\nrespectively, New Albertson's and Thomas & Betts.\n\n\n\n\n - 3 -\n\f The District Court entered judgment based on the jury's\n\nspecial verdict and awarded prejudgment interest, under § 6B or\n\n§ 6H of Chapter 231, without specifying which applied, to New\n\nAlbertson's and Thomas & Betts on the funds that had been awarded\n\nto each of them on their § 4 claims. The District Court then\n\nentered a separate judgment in which it awarded New Albertson's\n\nattorney's fees under § 15 of Chapter 21E. The consolidated\n\nappeals that are now before us concern both judgments. We affirm\n\neach of them.1\n\n I.\n\n To understand the many issues that we need to address,\n\nwe first provide some background on Chapter 21E and the cleanup of\n\nMother Brook. We then review the travel of the litigation.\n\n A.\n\n Chapter 21E is the Massachusetts version of the\n\nComprehensive Environmental Response, Compensation, and Liability\n\nAct (\"CERCLA\"), 42 U.S.C. §§ 9601-28. See John S. Boyd Co. v.\n\nBoston Gas Co., 992 F.2d 401, 404 n.3 (1st Cir. 1993). The\n\nMassachusetts Supreme Judicial Court (\"SJC\") has explained that\n\nChapter 21E, like its federal analogue, seeks \"to compel the prompt\n\n\n\n 1 One of the appeals, No. 16-1204, has been brought by a\nparty -- Allis-Chalmers Energy, Inc. -- that was not found liable\nby the jury. The appeal concerns the District Court's denial of\nthat party's motion for summary judgment. In light of our\ndisposition of the other appeals, we dismiss this appeal as moot.\n\n\n - 4 -\n\fand efficient cleanup of hazardous material and to ensure that\n\ncosts and damages are borne by the appropriate responsible\n\nparties.\" Bank v. Thermo Elemental Inc., 888 N.E.2d 897, 911\n\n(Mass. 2008) (quoting Taygeta Corp. v. Varian Assocs., 763 N.E.2d\n\n1053, 1059 (Mass. 2002)). To that end, whenever the MassDEP \"has\n\nreason to believe\" that \"hazardous material has been released\" or\n\nthat there is a \"threat\" of such a release, it \"is authorized to\n\ntake or arrange for such response actions as it reasonably deems\n\nnecessary.\" Mass. Gen. Laws ch. 21E, § 4.\n\n Section 4 further provides that, when the MassDEP has\n\nreason to believe that there has been such a release or the threat\n\nof one, it must notify the \"owner or operator of the site . . . of\n\nits intent to take such action,\" except under certain circumstances\n\nnot relevant here.2 Id. Section 4 then provides that \"[a]ny\n\nperson who undertakes a necessary and appropriate response action\n\nregarding the release or threat of release of . . . hazardous\n\nmaterials shall be entitled to reimbursement from any other person\n\nliable for such release or threat of release for the reasonable\n\ncosts of such response action.\" Id. And, § 4 provides as well,\n\n\n\n 2\n Chapter 21E defines a \"site\" as \"any building, structure,\ninstallation, equipment, pipe or pipeline, . . . well, pit, pond,\nlagoon, impoundment, ditch, landfill, storage container, motor\nvehicle, rolling stock, or aircraft, or any other place or area\nwhere oil or hazardous material has been deposited, stored,\ndisposed of or placed, or otherwise come to be located.\" Mass.\nGen. Laws ch. 21E, § 2.\n\n\n - 5 -\n\f\"[i]f two or more persons are liable pursuant to section five [of\n\nChapter 21E] for such release or threat of release, each shall be\n\nliable to the others for their equitable share of the costs of\n\nsuch response action.\" Id.\n\n Section 5(a) in turn spells out the \"person[s]\" who are\n\n\"liable\" for such release or threat of release and to whom they\n\nare \"liable.\"3 The \"person[s]\" who are \"liable\" pursuant to § 5\n\nfor a release or threat of such release include, in relevant part:\n\n\"the owner or operator of . . . a site from or at which there is\n\nor has been a release or threat of release of oil or hazardous\n\nmaterial,\" id. § 5(a)(1); \"any person who at the time of storage\n\nor disposal of any hazardous material owned or operated any site\n\nat or upon which such hazardous material was stored or disposed of\n\nand from which there is or has been a release or threat of release\n\nof hazardous material,\" id. § 5(a)(2); and \"any person who\n\notherwise caused or is legally responsible for a release or threat\n\nof release of oil or hazardous material from a . . . site,\" id.\n\n§ 5(a)(5). A \"person\" described in § 5(a) is, under § 5(a)(i),\n\n\"liable . . . to the [C]ommonwealth [of Massachusetts] for all\n\ncosts of assessment, containment and removal incurred . . .\n\n\n\n 3Chapter 21E defines a \"release\" as \"any spilling, leaking,\npumping, pouring, emitting, emptying, discharging, injecting,\nescaping, leaching, dumping or disposing into the environment,\"\nsave for several exceptions not relevant here. Mass. Gen. Laws\nch. 21E, § 2.\n\n\n - 6 -\n\frelative to such release or threat of release;\" and, under\n\n§ 5(a)(iv), \"liable . . . to any person for any liability that\n\nanother person is relieved of pursuant to [Mass. Gen. Laws ch.\n\n21E, § 4.]\"\n\n These portions of the statute are relatively\n\nstraightforward. There is, however, one additional point about\n\nthe statute that is critical to bear in mind in considering the\n\nanalysis that follows, though it is quite technical. The point is\n\nthis.\n\n Section 5(b) recognizes that a \"person who is liable\n\nsolely pursuant to [§ 5(a)(1)]\" -- a so-called \"current\n\nowner\" -- is \"liable to\" other current owners and is \"liable to\"\n\nthe Commonwealth. Id. § 5(b). But, § 5(b) provides that such a\n\ncurrent owner in some circumstances may not be \"liable to\" any\n\nother \"person[s]\" who are described in § 5(a). Specifically, §\n\n5(b) provides that a current owner is not \"liable to\" any \"person\n\nwho is liable pursuant to\" §§ 5(a)(2)-(5), if the current owner\n\ncan show that (1) it \"did not own or operate the site at the time\n\nof the release or threat of release in question\" and (2) it \"did\n\nnot cause or contribute to such release or threat of release.\"\n\nId.\n\n The upshot of this limitation in § 5(b) -- by virtue of\n\nhow §§ 5(a)(1) and 5(b) interact both with each other and with\n\n§ 4 -- is the following. A \"person\" may be \"liable\" within the\n\n\n - 7 -\n\fmeaning of § 5 -- for example, by virtue of being \"liable to the\n\n[C]ommonwealth\" under § 5(a)(1), in consequence of owning a site\n\nfrom which there \"has been a release\" -- and yet not be \"liable\n\nto\" a \"person\" who seeks reimbursement under § 4 for the costs\n\nthat it incurred in connection with a response action that it\n\nundertook in consequence of that release. Id. And, as we will\n\nsee, this limitation on liability in § 4, arising from § 5(b),\n\nbears directly on a number of the issues that we must address in\n\nthese appeals.\n\n There is one final statutory provision that warrants\n\nmuch briefer mention. Section 4A of Chapter 21E creates a cause\n\nof action premised on the liability that § 4 imposes. It provides\n\nthat parties may seek reimbursement from other parties, based on\n\ntheir liability under § 4, for the costs that they have incurred\n\nin undertaking response actions. Specifically, § 4A provides that\n\n\"any person who has given notice pursuant to this section may\n\ncommence a civil action in the superior court department of the\n\ntrial court seeking from the notice recipient contribution,\n\nreimbursement or an equitable share of the costs of such response\n\naction or of such actual or potential liability.\" Id. § 4A.4\n\n\n 4\n The District Court ruled that Thomas & Betts was excused\nfrom complying with the notice requirement in § 4A because the\nChapter 21E claims under § 4 that Thomas & Betts brought were\neither cross-claims or third-party claims. No party appeals that\nruling.\n\n\n\n - 8 -\n\f There are also certain Massachusetts regulations that\n\nare useful to understand. That is because the MassDEP implements\n\nChapter 21E through the Massachusetts Contingency Plan (the\n\n\"Plan\"), 310 Mass. Code Regs. 40. See Mass. Gen. Laws ch. 21E,\n\n§ 3(b).\n\n The Plan defines a \"response action\" as the\n\n\"assessment[], containment[], and/or removal[]\" of hazardous\n\nmaterials. 310 Mass. Code Regs. 40.0006(2)(a). The Plan further\n\nprovides that, in carrying out the authority to arrange for\n\nresponse actions, the MassDEP may issue a \"Notice of\n\nResponsibility\" to a \"potentially responsible party\" or a\n\n\"responsible party.\" Id. at 40.0160(1); see also Mass. Gen. Laws\n\nch. 21E, § 9 (describing MassDEP's authority to order a responsible\n\nparty to undertake a response action). The Plan defines a\n\n\"potentially responsible party\" as \"a person who is potentially\n\nliable pursuant to [Chapter 21E].\" 310 Mass. Code Regs.\n\n40.0006(12). The Plan defines a \"responsible party,\" by contrast,\n\nas \"a person who is liable under [Chapter 21E].\" Id.\n\n\n\n We note that, while § 4 imposes liability on certain persons\nto reimburse the response costs that a \"potentially responsible\nparty\" incurs, § 5(a)(iii) separately makes a \"person\" described\nin §§ 5(a)(1)-(5) \"liable to . . . any person for damage to . . .\nreal or personal property incurred or suffered as a result of such\nrelease or threat of release.\" Mass. Gen. Laws ch. 21E, § 5(a);\nsee also Martignetti v. Haigh-Farr Inc., 680 N.E.2d 1131, 1135-36\n(Mass. 1997). No party to this litigation advances such a § 5\nclaim, however. The claims at issue -- insofar as they are brought\npursuant to Chapter 21E -- are all brought under § 4.\n\n\n - 9 -\n\f The MassDEP has the \"sole discretion\" to determine \"whom\n\nto notify of their potential liability under [Chapter 21E].\" 310\n\nMass. Code Regs. 40.0160(1)(a). Once notified by the MassDEP,\n\n\"potentially responsible parties\" may undertake a response action,\n\nwhile \"responsible parties\" must do so. Id. at 40.0403(1).\n\n B.\n\n It is against this dense statutory and regulatory\n\nbackground that the dispute between the parties to these appeals\n\ncomes to us. The dispute itself has its origins in events that\n\ntook place nearly two decades ago.\n\n Thomas & Betts is one of the two principal parties to\n\nthese appeals. In 1999, it acquired a company that owned a\n\nproperty upstream from Mother Brook. Thomas & Betts, along with\n\nthe other parties to these appeals, has stipulated that the company\n\nthat it had acquired had used and stored PCBs on its property while\n\nit conducted industrial operations there.\n\n New Albertson's is the other principal party to these\n\nappeals. It has stipulated, along with the other parties, that it\n\n\"stands in the shoes\" of a number of parties that had leased a\n\nproperty downstream from Thomas & Betts's property, that this\n\ndownstream property had long been home to a supermarket, and that\n\nNew Albertson's had indemnified the owner of the supermarket\n\nproperty against certain environmental costs and responsibilities.\n\n\n\n\n - 10 -\n\f In 2000, sediment samples from the upstream property\n\nthat Thomas & Betts owned tested positive for PCBs. The next year,\n\nThomas & Betts developed and began carrying out a remediation plan\n\nfor that property as well as for Mother Brook in its entirety.\n\n On October 17, 2007, the MassDEP sent an email to Thomas\n\n& Betts, as the owner of the upstream property, and to the owner\n\nat that time of the downstream supermarket property. The email\n\nreported that the MassDEP had found PCB contamination along both\n\nbanks of Mother Brook in the area adjacent to the supermarket\n\nproperty and potentially extending downstream to the canal's\n\nterminus at the Neponset River. The email also indicated that,\n\npursuant to § 4 of Chapter 21E, the MassDEP would be issuing a\n\nNotice of Responsibility both to Thomas & Betts and to the owner\n\nof the supermarket property in connection with the contamination\n\nof Mother Brook.\n\n The next month, the MassDEP issued the Notice of\n\nResponsibility. The Notice of Responsibility stated that the\n\nMassDEP had reason to believe that Thomas & Betts and the owner of\n\nthe supermarket property were \"Potentially Responsible Parties.\"\n\nThe Notice of Responsibility also stated that \"responsible\n\nparties\" must take necessary response actions or risk \"liab[ility]\n\nfor up to three (3) times all response costs incurred by [the]\n\nMassDEP.\" See Mass. Gen. Laws ch. 21E, §§ 5(e), 9; 310 Mass. Code\n\nRegs. 40.1220(5). Finally, the Notice of Responsibility stated\n\n\n - 11 -\n\fthat \"[t]he subject site shall not be deemed to have all the\n\nnecessary and required response actions taken unless and until all\n\nsubstantial hazards presented by the site have been eliminated and\n\na level of No Significant Risk exists.\"5\n\n In response to the email from the MassDEP, but before\n\nthe MassDEP had sent the Notice of Responsibility, Thomas & Betts\n\nand New Albertson's entered into a joint remediation agreement.\n\nSpecifically, the two parties agreed \"to cooperate with each other\n\nin good faith and with due haste to implement the [MassDEP's]\n\nexpectations set forth in . . . the October 17 Email.\" Pursuant\n\nto that same agreement, Thomas & Betts and New Albertson's also\n\nagreed to an \"interim\" allocation of the costs that they would\n\njointly incur in cleaning up Mother Brook. Thomas & Betts and New\n\nAlbertson's did so on the understanding that this interim\n\nallocation was \"not intended to reflect the parties' ultimate cost\n\nresponsibility.\"\n\n At the time that Thomas & Betts entered into the joint\n\nremediation agreement with New Albertson's, Thomas & Betts already\n\nhad the necessary permits and authorizations to remediate Mother\n\nBrook. Thus, Thomas & Betts and New Albertson's agreed to\n\n\n 5 A Massachusetts regulation promulgated by the MassDEP\ndefines \"No Significant Risk\" as a \"level of control of each\nidentified substance of concern at a site . . . such that no such\nsubstance of concern shall present a significant risk of harm to\nhealth, safety, public welfare or the environment during any\nforeseeable period of time.\" 310 Mass. Code Regs. 40.0006(12).\n\n\n - 12 -\n\fundertake their joint remediation effort pursuant to those permits\n\nand authorizations.\n\n To clean up Mother Brook, the canal had to be drained\n\nand the contaminated sediment completely removed. The portion of\n\nMother Brook adjacent to the supermarket property was bounded by\n\ntwo parallel bridges that spanned the canal. To drain and excavate\n\nthis portion of the canal, access to either the north bank, where\n\nthe supermarket property was located, or the south bank, was\n\nneeded.\n\n The cleanup of Mother Brook was completed by December of\n\n2009. In the end, Thomas & Betts incurred $12,703,322.52 in\n\nresponse costs. Pursuant to the joint remediation agreement, New\n\nAlbertson's paid Thomas & Betts $2,924,306.88. New Albertson's\n\nitself incurred an additional $791,398.31 in response costs in\n\nconnection with the cleanup.\n\n C.\n\n In November of 2010, Thomas & Betts filed a complaint,\n\ninvoking federal diversity jurisdiction, against New Albertson's\n\nin the United States District Court for the District of\n\nMassachusetts. See 28 U.S.C. § 1332(a). Thomas & Betts alleged\n\nthat New Albertson's had ceased paying it pursuant to the agreement\n\nto allocate the costs of the cleanup set forth in the joint\n\nremediation agreement. On that basis, Thomas & Betts asserted\n\nclaims against New Albertson's under Massachusetts law for breach\n\n\n - 13 -\n\fof contract, breach of the covenant of good faith, and unfair and\n\ndeceptive business practices.\n\n In January of 2011, New Albertson's filed counterclaims\n\nagainst Thomas & Betts under Massachusetts law for breach of\n\ncontract, breach of the covenant of good faith, and unfair and\n\ndeceptive business practices. New Albertson's also asserted a\n\ncounterclaim against Thomas & Betts for reimbursement based on § 4\n\nof Chapter 21E for all the response costs that it had incurred in\n\nconnection with the cleanup of Mother Brook and for costs,\n\nincluding attorney's fees, under § 15 of Chapter 21E.\n\n Later that year, Thomas & Betts responded by filing its\n\nown counterclaims based on § 4 of Chapter 21E against New\n\nAlbertson's for reimbursement for the response costs that it had\n\nincurred in connection with the cleanup and for costs, including\n\nattorney's fees, under § 15 of Chapter 21E. Thomas & Betts also\n\nadded a new breach of contract counterclaim under Massachusetts\n\nlaw against New Albertson's. This counterclaim alleged that New\n\nAlbertson's had breached the joint remediation agreement's duty\n\n\"to cooperate in good faith\" by, among other things, \"[r]efusing\n\nto allow timely access to New Albertson's' property, which access\n\nwas necessary to complete the bank remediation work.\"\n\n Eventually, Thomas & Betts and New Albertson's each also\n\nfiled complaints pursuant to § 4A of Chapter 21E against other\n\nparties. Those third-party complaints sought reimbursement from\n\n\n - 14 -\n\fthe third parties for the response costs that Thomas & Betts and\n\nNew Albertson's, respectively, each had incurred in remediating\n\nthe contamination of Mother Brook.\n\n One of these third-party defendants is Alfa Laval Inc.,\n\nwhich is also a party on appeal. Alfa Laval manufactured\n\ncentrifuges on the south bank of Mother Brook, across from where\n\nthe supermarket property is located, from the 1960s until the late\n\n1970s. Alfa Laval purchased the site and assets of the centrifuge\n\nbusiness from another manufacturer that, the parties to these\n\nappeals have stipulated, used and stored PCBs at this south bank\n\nproperty.\n\n Another set of third-party defendants who are parties on\n\nappeal includes the Boston Renaissance Foundation, Inc.\n\n(\"Foundation\"), which purchased the south bank property in 2008,\n\nand the Boston Renaissance Charter Public School, which leased\n\nthat same property from the Foundation. We will refer to these\n\nparties collectively as \"the Charter School Parties.\" The Charter\n\nSchool Parties were joined as defendants in this litigation by\n\nThomas & Betts in late 2011. Thomas & Betts claimed that the\n\nCharter School Parties were \"liable to\" it, under § 4 of Chapter\n\n21E, for the reimbursement of a portion of the response costs that\n\nit had incurred.\n\n Finally, we need to mention one other pair of parties to\n\nthese appeals. These parties are Dampney Company, Inc. (\"Dampney\")\n\n\n - 15 -\n\fand Jeanette Yukon, as general partner of Yukon/Hyde Park Avenue\n\nLimited Partnership (\"Yukon\"). Dampney was a paint manufacturer\n\nthat owned a site just north of Thomas & Betts's property between\n\n1930 and 1970.\n\n Thomas & Betts filed a third-party complaint against\n\nDampney under § 4A of Chapter 21E in December of 2011. The\n\nYukon/Hyde Park Avenue Limited Partnership at one point owned the\n\nsouth bank property where the Boston Renaissance Charter Public\n\nSchool is now located. Yukon became a party to the suit due to\n\nthe third-party complaint that Alfa Laval filed pursuant to § 4A\n\nof Chapter 21E in 2012. Neither Dampney nor Yukon claim that the\n\nDistrict Court erred, and we need only mention them briefly at\n\npoints in considering the challenges that Thomas & Betts brings on\n\nappeal.\n\n The trial on these various claims took place in late\n\n2015 and lasted twenty-one days. Only the claims based on § 4 of\n\nChapter 21E for reimbursement by Thomas & Betts and New\n\nAlbertson's -- against each other and the other parties that we\n\nhave mentioned -- went to the jury.\n\n On December 22, 2015, the jury returned a special\n\nverdict. The first part of the special verdict addressed \"Question\n\nOne\" on the special verdict form, which concerned the claims that\n\nThomas & Betts had brought based on § 4 of Chapter 21E.\n\nSpecifically, the jury found that Thomas & Betts had incurred\n\n\n - 16 -\n\f$12,703,322.52 in reasonable and necessary response costs. The\n\njury also found that Alfa Laval and the Charter School Parties\n\nwere \"liable to\" Thomas & Betts for a portion of the response costs\n\nthat had been incurred by Thomas & Betts. The jury then allocated\n\nresponsibility for 14 percent of those response costs to Alfa Laval\n\nand 1 percent of them to the Charter School Parties. The jury\n\nfound that no other party to the litigation, including New\n\nAlbertson's, was \"liable to\" Thomas & Betts for any portion of\n\nThomas & Betts's response costs. The jury assigned Thomas & Betts\n\nthe other 85 percent of the response costs.\n\n The second part of the special verdict addressed\n\n\"Question Two,\" which concerned the claims that New Albertson's\n\nhad brought based on § 4 of Chapter 21E. The jury found that New\n\nAlbertson's had incurred $791,398.31 in reasonable and necessary\n\nresponse costs. The jury also found that Thomas & Betts was\n\n\"liable to\" New Albertson's for 75 percent of those response costs\n\nand that no other party to the litigation was \"liable to\" New\n\nAlbertson's for them. The jury assigned New Albertson's the other\n\n25 percent of the response costs. In addition, the jury found\n\nthat New Albertson's did not \"cause[] or contribute[] to the\n\nrelease of PCBs to the banks or streambed of Middle or Lower Mother\n\nBrook[.]\"\n\n The District Court entered judgment based on the jury's\n\nspecial verdict on December 31, 2015. The various parties then\n\n\n - 17 -\n\ffiled a number of post-trial motions, including motions to alter\n\nthe judgment. The District Court denied most of these motions on\n\nMarch 29, 2016, although the District Court did grant motions by\n\nThomas & Betts and New Albertson's to alter the judgment and to\n\ninclude prejudgment interest on the funds that each had been\n\nawarded pursuant to their respective claims under § 4 of Chapter\n\n21E. The District Court did so pursuant to either § 6B or § 6H of\n\nChapter 231, without specifying which provision applied. On May\n\n2, 2016, the District Court issued a written decision explaining\n\nboth its prejudgment interest rulings and its ruling rejecting\n\nThomas & Betts's post-trial motion for a new trial. A number of\n\nparties appealed from the District Court's amended judgment.6\n\n The District Court then issued two written\n\ndecisions -- the first on September 29, 2016 and the second on\n\nMarch 10, 2017 -- on still-pending motions concerning costs,\n\nincluding attorney's and expert's fees. The District Court finally\n\nentered judgment on the motions for attorney's fees on April 4,\n\n\n 6\n The judgment initially entered pursuant to the verdict did\nnot address the roughly $2.9 million that New Albertson's paid\nThomas & Betts pursuant to the joint remediation agreement. Both\nNew Albertson's and Thomas & Betts moved to amend the judgment.\nThe District Court granted the motions.\n The District Court's judgment on the verdict, as amended, was\na final and appealable decision prior to its later order on\nattorney's fees, which is separately appealable. See Budinich v.\nBecton Dickinson & Co., 486 U.S. 196, 200-03 (1988). Thomas &\nBetts appealed in No. 16-1189. Alfa Laval appealed in No. 16-\n1133. The Charter School Parties appealed in No. 16-1134.\n\n\n - 18 -\n\f2017. In the portion of the judgment on those costs that is at\n\nissue on appeal, the District Court ordered Thomas & Betts to pay\n\n$1,747,188.59 in costs, including attorney's and expert's fees, to\n\nNew Albertson's under § 15 of Chapter 21E.\n\n Thomas & Betts then appealed this judgment in No. 17-\n\n1360, as did New Albertson's in No. 17-1361. These appeals, along\n\nwith the others mentioned above, were all then consolidated.\n\n II.\n\n We begin with the appeal that Thomas & Betts brings from\n\nthe District Court's denial of its motion for a new trial pursuant\n\nto Federal Rule of Civil Procedure 59. Thomas & Betts contends\n\nthat the District Court erred in denying its Rule 59 motion based\n\non what it contends were a number of alleged legal errors at trial.\n\nThese alleged legal errors are: that the District Court reversibly\n\nerred by refusing to instruct the jury on one of its breach of\n\ncontract claims; that the District Court reversibly erred by giving\n\nfour erroneous instructions concerning the potential liability,\n\nunder § 4 of Chapter 21E, of other parties to Thomas & Betts for\n\nat least some of its response costs; and that the jury rendered\n\ninconsistent verdicts on certain of Thomas & Betts's claims under\n\n§ 4 of Chapter 21E. We address each asserted error in turn.\n\n A.\n\n We start with the contention by Thomas & Betts that the\n\nDistrict Court committed reversible error by failing to instruct\n\n\n - 19 -\n\fthe jury on its breach of contract claim against New Albertson's\n\nfor failing to provide access to its property despite its duty\n\nunder the joint remediation agreement to \"cooperate in good faith.\"\n\nWe review the District Court's denial of a motion for a new trial\n\nfor abuse of discretion. Kennedy v. Town of Billerica, 617 F.3d\n\n520, 527 (1st Cir. 2010). Where, however, a motion for a new trial\n\nrelies on \"preserved claims of instructional error, we afford de\n\nnovo review to 'questions as to whether the jury instructions\n\ncapture the essence of the applicable law.'\" Ira Green, Inc. v.\n\nMilitary Sales & Service Co., 775 F.3d 12, 18 (1st Cir. 2014)\n\n(quoting DeCaro v. Hasbro, Inc., 580 F.3d 55, 61 (1st Cir. 2009)).\n\n Here, of course, the claimed instructional error\n\nconsists of a failure by the District Court to give an instruction\n\non a claim at all rather than of an instruction that was given but\n\nthat was allegedly wrong. \"The district court must give a jury\n\ninstruction on a material issue if the evidence presented at trial\n\ncould plausibly support a finding for either side.\" Id. \"The\n\nstandard for determining whether a factual issue is sufficiently\n\ncontested to require an instruction is identical to the standard\n\nfor determining whether a factual controversy prevents the entry\n\nof judgment as a matter of law.\" Wilson v. Mar. Overseas Corp.,\n\n150 F.3d 1, 10 (1st Cir. 1998). Thus, to show error here, Thomas\n\n& Betts must demonstrate that there is more than \"a mere scintilla\n\nof evidence\" in the record to support the claim on which the jury\n\n\n - 20 -\n\fwas not instructed. Fashion House, Inc. v. K Mart Corp., 892 F.2d\n\n1076, 1088 (1st Cir. 1989). Our review of this matter of law is\n\nde novo. See Wilson, 150 F.3d at 10.\n\n Thomas & Betts contends -- as it did below in moving for\n\na new trial -- that the record shows that a jury supportably could\n\nhave found that, in 2007, and then, again, from 2008 into 2009,\n\nNew Albertson's breached the duty at issue. Thomas & Betts further\n\ncontends that there was enough evidence in the record to permit\n\nthe jury to have found that the alleged breach -- no matter when\n\nit occurred -- resulted in damages. Accordingly, Thomas & Betts\n\ncontends that the District Court was obliged to instruct the jury\n\non this claim of contractual breach.\n\n In ruling otherwise in denying Thomas & Betts's motion\n\nfor new trial, the District Court concluded, among other things,\n\nthat the record did not contain sufficient evidence for a jury\n\nreasonably to find damages resulting from the alleged breach.7\n\n\n 7 We note that the District Court, in rejecting the motion by\nThomas & Betts for a new trial concerning this instruction,\nexplained that \"the [joint remediation] [a]greement does nothing\nmore than codify the signatories' duties under Chapter 21E and\nprovide for certain interim payments from New Albertson's to Thomas\n& Betts.\" Thomas & Betts does not argue that, insofar as this\nconclusion regarding codification formed the basis for the\nDistrict Court’s rejection of its motion for new trial as to this\ninstruction, this conclusion was error. And, even assuming error\non this score, it was harmless, as, for the reasons that we\nexplain, Thomas & Betts cannot show that it put forth enough\nevidence to permit a jury to find that New Albertson’s breached\nthe duty \"to cooperate in good faith\" that the joint remediation\nagreement establishes.\n\n\n - 21 -\n\fBut, as \"[w]e are at liberty to affirm a district court's judgment\n\non any ground made manifest by the record,\" United States v.\n\nGeorge, 886 F.3d 31, 39 (1st Cir. 2018), we may affirm the District\n\nCourt based on our resolution of the antecedent question of whether\n\nthe evidence sufficed to support a finding that New Albertson's\n\nhad committed the alleged breach at all. And, because we conclude\n\nthat the evidence did not suffice in that regard, we reject the\n\nchallenge that Thomas & Betts brings concerning the District\n\nCourt's failure to give this instruction.\n\n 1.\n\n To make the case that the District Court erred by not\n\ninstructing the jury on the breach of contract claim, Thomas &\n\nBetts first argues that a jury supportably could have found that\n\nNew Albertson's breached the contractual duty at issue by rejecting\n\na proposal to conduct simultaneous remediation in 2007. Thomas &\n\nBetts points to the testimony of John Mitchell, the project manager\n\nfor Shaw Environmental & Infrastructure, Inc., which was the\n\noutside consultant retained by Thomas & Betts for the remediation\n\nproject.\n\n Mitchell's testimony concerned a 2007 proposal -- never\n\nimplemented -- that New Albertson's remediate both banks of Mother\n\nBrook and its streambed simultaneously. Citing only to this\n\ntestimony, Thomas & Betts contends on appeal that \"the jury heard\n\nthat [New Albertson's] insisted that the North Bank (its side) be\n\n\n - 22 -\n\fdone first.\" Thomas & Betts then contends, on that basis, that a\n\njury supportably could find that New Albertson's unreasonably\n\nstood in the way of this proposal being put into operation.\n\nAccordingly, Thomas & Betts contends, for this reason alone the\n\nrecord adequately supports a finding that New Albertson's breached\n\nits duty under the remediation agreement to cooperate in good\n\nfaith.\n\n The problem with this contention, however, is that\n\nMitchell testified that he did not know who had decided to reject\n\nthe simultaneous remediation proposal or how the decision not to\n\npursue it had been made. Moreover, Thomas & Betts points to no\n\nother evidence to support its contention that New Albertson's\n\nunreasonably stood in the way of the 2007 proposal. We thus see\n\nno basis for concluding that a jury could find that New Albertson's\n\nunreasonably rejected the 2007 proposal. Accordingly, we do not\n\nsee any basis for concluding that a jury supportably could have\n\nfound a breach of the duty at issue -- the duty under the joint\n\nremediation agreement \"to cooperate in good faith\" -- based on the\n\nevidence concerning that proposal. After all, a jury cannot be\n\nasked to rely on \"mere speculation and conjecture[,]\" see Mullins\n\nv. Pine Manor Coll., 449 N.E.2d 331, 338 (Mass. 1983) (quoting\n\nInt’l Fidelity Ins. Co. v. Wilson, 443 N.E.2d 1308, 1313 (Mass.\n\n1983)), and, under Massachusetts law, \"[t]here is a presumption\n\nthat all parties act in good faith, and the plaintiff bears the\n\n\n - 23 -\n\fburden of presenting evidence of bad faith or an absence of good\n\nfaith.\" T.W. Nickerson, Inc. v. Fleet Nat. Bank, 924 N.E.2d 696,\n\n706 (Mass. 2010).\n\n 2.\n\n Thomas & Betts alternatively contends that the District\n\nCourt erred in not instructing the jury on this breach of contract\n\nclaim because of evidence about actions that New Albertson's took\n\nfrom 2008 to 2009. Thomas & Betts contends that the evidence of\n\nthese actions suffices to support a jury finding that the duty at\n\nissue was breached. Again, though, we do not agree.\n\n Thomas & Betts points to the fact that the record\n\nsupportably shows that, during this time, New Albertson's failed\n\nto offer Thomas & Betts access to Mother Brook through its property\n\nvia the north bank of the canal despite knowing that Thomas & Betts\n\nhad no other available means of accessing the canal. But, as we\n\nhave noted, under Massachusetts law, we \"presum[e] that all parties\n\nact in good faith\" and that \"the plaintiff bears the burden of\n\npresenting evidence of bad faith or an absence of good faith[.]\"\n\nId. Thus, we do not see how evidence of New Albertson's failure\n\nto offer access in and of itself could suffice to support a finding\n\nthat that New Albertson's breached its contractual duty under the\n\njoint remediation agreement \"to cooperate in good faith.\" Nor\n\ndoes Thomas & Betts identify any authority to support a conclusion\n\nthat such evidence could suffice.\n\n\n - 24 -\n\f Thomas & Betts does point to an email exchange from June\n\nof 2009 in which Thomas & Betts asked a representative of New\n\nAlbertson's for north bank access and the representative from New\n\nAlbertson's turned down the request. This exchange does show that,\n\nafter conferring on the matter with other parties tied to the\n\ndownstream supermarket property, the New Albertson's\n\nrepresentative responded. The record shows that he stated that\n\n\"we continue to see a number of serious obstacles associated with\n\nthe idea of using the north bank for access\" and that \"our shared\n\nposition at this point is to press the [south bank property owner]\n\nto comply with its existing access obligations.\"\n\n But, evidence that New Albertson's rejected a request\n\nfor access and gave its reasons for doing so is not in and of\n\nitself evidence that New Albertson's breached its duty \"to\n\ncooperate in good faith.\" And the effort by Thomas & Betts to\n\nsupply what is missing by pointing to other evidence fails.\n\n Thomas & Betts points in particular to Mitchell's\n\ntestimony that, once New Albertson's granted access to the north\n\nbank three months later in 2009, workers did not encounter any\n\n\"obstacles.\" But, the fact that Mitchell did not report any\n\nobstacles once New Albertson's did provide access in September of\n\n2009 reveals nothing about whether New Albertson's had a reasonable\n\nbasis for concluding that there were serious obstacles to providing\n\nsuch access three months earlier, in June. Moreover, Thomas &\n\n\n - 25 -\n\fBetts points to nothing in the record that indicates that it\n\nchallenged the representation that New Albertson's made regarding\n\nthe serious nature of those obstacles at the time that New\n\nAlbertson's made it. In fact, Thomas & Betts does not even\n\nidentify what it believes the record shows that those \"obstacles\"\n\nwere or on what basis a jury could find -- despite the absence of\n\nany record evidence indicating what those obstacles were -- that\n\nthe representation made by New Albertson's about the seriousness\n\nof them was not made in good faith or was otherwise unreasonable.\n\n Thus, the evidence of the exchange reflected in the email\n\ndoes not suffice to support the finding of breach that Thomas &\n\nBetts alleges. Accordingly, we reject this aspect, too, of the\n\nchallenge that Thomas & Betts brings to the District Court's\n\nfailure to give the instruction on this breach of contract claim.\n\n B.\n\n Thomas & Betts next turns its attention away from the\n\nomitted instruction concerning the breach of contract claim to\n\nfocus on four instructions that the District Court did give but\n\nthat Thomas & Betts contends were erroneous. These instructions\n\nconcerned the claims that had been brought by Thomas & Betts\n\npursuant to § 4A of Chapter 21E against New Albertson's and various\n\nof the other parties to these appeals for reimbursement, based on\n\n§ 4 of Chapter 21E, of the response costs that Thomas & Betts had\n\nincurred. We conclude, however, that the challenges to these\n\n\n - 26 -\n\finstructions provide no basis for finding that the District Court\n\nerred in denying the motion for new trial.\n\n 1.\n\n \"An erroneous jury instruction warrants a new trial if\n\n'the preserved error, based on a review of the entire record, can\n\nfairly be said to have prejudiced the objecting party.'\" Goodman\n\nv. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004) (quoting\n\nLevinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st\n\nCir. 1997)). We review de novo \"whether [each] charge in its\n\nentirety -- and in the context of the evidence -- presented the\n\nrelevant issues to the jury fairly and adequately.\" Id. Any\n\npreserved challenge to an instruction's \"matter of form or\n\nwording,\" however, is reviewed only for an abuse of discretion.\n\nId.\n\n Even if a jury instruction is erroneous, it must still\n\ncause prejudice to constitute reversible error.8 And, to be\n\nprejudicial, the error must \"adversely affect[] the jury verdict\n\nand the 'substantial rights' of the objecting party.\" Davignon v.\n\nClemmey, 322 F.3d 1, 9 (1st Cir. 2003); see also Costa-Urena v.\n\n\n\n 8\n \"Because the standard of review is a procedural matter, not\na substantive one, we are bound by federal law\" in determining\nwhether an erroneous jury instruction constitutes reversible\nerror. Alison H. v. Byard, 163 F.3d 2, 4 (1st Cir. 1998); but see\nGasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 416 (1996)\n(applying state law where the state's \"objective\" in using a\ndifferent standard of review was \"manifestly substantive\").\n\n\n - 27 -\n\fSegarra, 590 F.3d 18, 24 n.2 (1st Cir. 2009) (\"This 'harmless\n\nerror' standard applies where . . . a party has properly objected\n\nto the court's instruction at trial.\").\n\n Finally, we note that to obtain the benefit of the\n\nstandards of review described above, a party must preserve the\n\nchallenge to instructional error. If the challenge is unpreserved,\n\nhowever, it may be either forfeited or waived. A right is waived\n\nby its intentional relinquishment. Dávila v. Corporación De P.R.\n\nPara La Difusión Pública, 498 F.3d 9, 15 n.2 (1st Cir. 2007).\n\nWaived claims are generally not reviewable on appeal. See Ji v.\n\nBose Corp., 626 F.3d 116, 129 (1st Cir. 2010) (deeming an issue\n\nwaived and denying review). A forfeited claim, by contrast, may\n\nbe reviewed, but ordinarily only for plain error. See Sony BMG\n\nMusic Entm't v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011).\n\n To prevail on plain error review, the party claiming\n\nerror must show \"(1) that there was error, (2) that it was plain,\n\n(3) that it likely altered the outcome, and (4) that it was\n\nsufficiently fundamental to threaten the fairness, integrity or\n\npublic reputation of the judicial proceedings.\" Id. This standard\n\nis high, and \"it is rare indeed for a panel to find plain error in\n\na civil case.\" Id. (quoting Diaz-Fonseca v. Puerto Rico, 451 F.3d\n\n13, 36 (1st Cir. 2006)).\n\n\n\n\n - 28 -\n\f 2.\n\n Thomas & Betts first contends that the District Court\n\nerred in instructing the jury about an affirmative defense -- for\n\nlack of knowledge -- that New Albertson's, Yukon, and the Charter\n\nSchool Parties would each have to the claims by Thomas & Betts for\n\nreimbursement under § 4 of Chapter 21E of the response costs that\n\nThomas & Betts had incurred. The instruction stated that the\n\ndefense would be available to any of those parties if, as an owner\n\nof a site at which there is or has been a release or threat of\n\nrelease of hazardous material, see Mass. Gen. Laws ch. 21E,\n\n§ 5(a)(1), that owner could prove that it \"didn't know anything\"\n\nabout the release or threatened release of that material.\n\n In giving the instruction, the District Court\n\nemphasized: \"But [the owners of the site have] got to prove it.\n\nThey've got to prove it. Thomas & Betts doesn't have to prove\n\nit.\"\n\n Thomas & Betts contends that the instruction\n\n\"erroneously and confusingly conflated the question of whether a\n\ncurrent owner 'caused or contributed' to a release with the\n\nquestion of whether the current owner had knowledge of PCB\n\ncontamination.\" And, on that basis, Thomas & Betts now argues\n\nthat the instruction, insofar as it was erroneous in stating that\n\nlack of knowledge could be a defense, was also prejudicial. And,\n\nfurther, Thomas & Betts contends, that is so notwithstanding the\n\n\n - 29 -\n\fjury's finding that New Albertson's did not \"cause[] or\n\ncontribute[] to the release of PCBs to the banks or streambed of\n\nMiddle or Lower Mother Brook[.]\"\n\n The prejudice argument that Thomas & Betts advances\n\nproceeds as follows. Thomas & Betts first asserts that the\n\nliability of New Albertson's to Thomas & Betts under § 4 could be\n\nbased on New Albertson's being found liable under § 5(a)(1), as\n\nthe \"owner or operator of . . . a site from or at which there is\n\nor has been a release or threat of release\" of PCBs. Thomas &\n\nBetts then contends that New Albertson's, if it were found liable\n\nunder § 5(a)(1), could avoid being found \"liable to\" Thomas & Betts\n\nunder § 4 for a proportionate share of the response costs that\n\nThomas & Betts incurred in cleaning up Mother Brook only if the\n\njury also found that, per § 5(b), New Albertson's did not \"cause\n\nor contribute\" to the release or threat of release of PCBs into\n\nthat canal.\n\n Thus, Thomas & Betts suggests, if the instruction\n\nmistakenly conflated causation and knowledge, it could potentially\n\nhave led the jury to conclude that lack of knowledge on the part\n\nof New Albertson's -- in and of itself -- required a finding that\n\nNew Albertson's did not \"cause or contribute\" to the release. And,\n\nhence, New Albertson's thereby could wrongly escape liability to\n\nThomas & Betts, even if the record could have -- save for the\n\nmistaken instruction conflating knowledge and\n\n\n - 30 -\n\fcausation -- permitted the jury to have found that New Albertson's\n\ndid, in fact, \"cause or contribute\" to the release.\n\n But, Thomas & Betts did not argue below that the\n\ninstruction was problematic because it conflated the concepts of\n\ncausation and knowledge in the way that Thomas & Betts now contends\n\nthat the instruction conflated them. At most, Thomas & Betts\n\nargued below that the instruction was problematic simply because\n\nit permitted a lack of knowledge defense at all under § 4, such\n\nthat, even if a jury found that a party was \"liable\" under\n\n§ 5(a)(1) and had \"caused or contributed to a release\" under\n\n§ 5(b), that party could escape liability under § 4 for an\n\nequitable share of another party's response costs because that\n\nparty did not know that it had \"caused or contributed to the\n\nrelease.\"\n\n Accordingly, Thomas & Betts's new argument is forfeited,\n\nif not waived. And, as Thomas & Betts makes no argument on appeal\n\nthat it can satisfy the demanding plain error standard that\n\ntherefore applies to its new argument, this aspect of Thomas &\n\nBetts's challenge to the instruction necessarily fails. See Sony\n\nBMG Music Entm't, 660 F.3d at 503.\n\n To be sure, Thomas & Betts appears on appeal also to\n\nreprise its argument below that the instruction was wrong because\n\nit indicated that lack of knowledge is, generally, a defense to\n\nliability under § 4, even if the instruction did not thereby\n\n\n - 31 -\n\fconflate knowledge and causation. But, this aspect of its\n\nchallenge to the instruction fails on prejudice grounds. And it\n\ndoes so even if we assume that the instruction erroneously stated\n\nthat a current owner's lack of knowledge of a release or threat of\n\nrelease necessarily precludes that current owner from being found\n\nliable for \"caus[ing] or contribut[ing]\" to a release or threat of\n\nrelease.\n\n Thomas & Betts contends otherwise with respect to\n\nprejudice as follows. But for the instruction about the lack of\n\nknowledge defense, the jury could have found both New Albertson's\n\nand the Charter School Parties \"liable to\" it under § 4 of Chapter\n\n21E for at least some of its response costs based on the evidence\n\nthat New Albertson's and the Charter School Parties each \"hired\n\ncontractors who failed to properly or adequately test for PCBs in\n\nspite of the known industrial history of the properties that\n\npointed towards PCB contamination.\"\n\n As this description of Thomas & Betts's argument for\n\nshowing prejudice reveals, however, Thomas & Betts does not develop\n\nany argument as to prejudice with respect to its claim under § 4\n\nagainst Yukon. Thus, the asserted instructional error has no\n\nbearing on Thomas & Betts's appeal of the ruling below as to that\n\nclaim.\n\n With respect to the Charter School Parties, moreover,\n\nThomas & Betts obviously cannot make a showing of prejudice\n\n\n - 32 -\n\fconcerning this instruction, even assuming that it was erroneous.\n\nThe jury found that the Charter School Parties were \"liable to\"\n\nThomas & Betts for the response costs that it had incurred.\n\n That leaves, then, only the issue of prejudice as to the\n\n§ 4 claim that Thomas & Betts brings against New Albertson's. But,\n\nthe jury found, as reflected in the special verdict form, that New\n\nAlbertson's did not \"cause[] or contribute[] to the release of\n\nPCBs to the banks or streambed of Middle or Lower Mother Brook[.]\"\n\nAnd Thomas & Betts makes no argument to us -- aside from an\n\nunpreserved contention that the instruction conflated knowledge\n\nand causation -- as to how the instruction concerning the lack of\n\nknowledge could have impacted that finding. Thus, we see no basis\n\nfor concluding that the instruction wrongly led the jury to\n\nfind -- per § 5(b)'s limitation on § 5(a)(1) -- that New\n\nAlbertson's was not liable to Thomas & Betts under § 4 for\n\nreimbursement of an equitable portion of its response costs. Thus,\n\nthe challenge to the instruction fails on prejudice grounds.9\n\n\n\n\n 9\n We note that Thomas & Betts also develops no argument that\nthe failure on the part of the contractors for New Albertson's to\ntest, in and of itself, could suffice to show liability under\n§ 5(a)(5), which provides that \"any person who otherwise caused or\nis legally responsible for a release or threat of release\" is\nliable to both the Commonwealth and to parties seeking\nreimbursement under § 4 of Chapter 21E.\n\n\n - 33 -\n\f 3.\n\n Thomas & Betts next focuses on an instruction that the\n\nDistrict Court gave to the jury in response to a question that it\n\nhad asked after deliberations had begun. The District Court\n\ninitially instructed the jury that: \"[T]he law imposes on New\n\nAlbertson’s and the Charter School [Parties] the duty of giving\n\nThomas & Betts reasonable access to the area so they can clean it\n\nup. And if they do not give reasonable access to the area, well,\n\nthen they're liable for contribution anyway.\" During\n\ndeliberations, the jury asked for clarification: \"If no PCBs were\n\nreleased from a property[,] are the property owners, operators,\n\n[and] tenants, still required to provide reasonable access for\n\ncleaning up another contaminated property?\"\n\n The District Court gave the following response:\n\n The short answer is \"No.\" . . . As to current\n owners the statute imposes liability for a\n release or a continued release while they own\n it, and the business about reasonable access\n is if you are otherwise liable because of a\n release and then you don't provide reasonable\n access, then you may take that into account\n with respect to the contribution.\n\n Thomas & Betts contends that the District Court's answer\n\nto the jury's question conflicted with § 5(a)(5) of Chapter 21E.\n\nThat provision makes any \"person\" liable both to the Commonwealth\n\nand to a \"person\" seeking reimbursement under § 4 if that \"person\"\n\n\"otherwise caused or is legally responsible for a release or threat\n\n\n\n\n - 34 -\n\fof release of oil or hazardous material from a vessel or site.\"\n\nMass. Gen. Laws ch. 21E, § 5(a)(5).10\n\n By answering \"no\" to the jury's question, Thomas & Betts\n\ncontends, the District Court's instruction mistakenly precluded\n\nthe jury from finding that New Albertson's \"caused or [was] legally\n\nresponsible for a release or threat of release\" under § 5(a)(5),\n\neven if the jury found that New Albertson's denied Thomas & Betts\n\nreasonable access to Mother Brook. Thomas & Betts contends that\n\nthe District Court's \"No\" answer amounted to an erroneous\n\ninstruction to the jury that it could not find New Albertson's\n\nliable to Thomas & Betts under § 4, per § 5(a)(5), in consequence\n\nof having denied reasonable access, if the jury also found that\n\nNew Albertson's was not \"otherwise liable\" for a release.\n\n Thomas & Betts contends, moreover, that this instruction\n\nwas not only wrong, but prejudicial. With respect to prejudice,\n\nThomas & Betts argues, this instructional error foreclosed a\n\n\n 10We note that it appears that Thomas & Betts means also to\ncontend that this instruction conflicts with § 5(a)(1) of Chapter\n21E. That provision concerns a party's liability for a \"release\"\nor \"threat of release\" when it occurs \"from or at\" the property\nbelonging to that party. Thomas & Betts appears to contend on\nappeal that the instruction was problematic because it referred\nonly to a \"release\" and did not refer also to a \"threat of release.\"\nBut, Thomas & Betts's own account to us of what transpired below\ndoes not indicate that it objected below to the District Court's\ninstruction on that basis. Nor does Thomas & Betts make any\nargument that it can satisfy the plain error standard. See, e.g.,\nUnited States v. Edelkind, 467 F.3d 791, 797 (1st Cir. 2006);\nUnited States v. González-Mercado, 402 F.3d 294, 301-02 (1st Cir.\n2005).\n\n\n - 35 -\n\fsupportable basis on which the jury could have found New\n\nAlbertson's \"liable\" under § 5(a)(5). That supportable basis was\n\nthat New Albertson's \"caused or was legally responsible for a\n\nrelease\" because it denied Thomas & Betts reasonable access to\n\nMother Brook. Thus, Thomas & Betts contends, the erroneous\n\ninstruction in this way wrongly prevented the jury from finding\n\nthat Thomas & Betts was entitled to be reimbursed for response\n\ncosts by New Albertson's under § 4.\n\n But, even if we assume that Thomas & Betts is right that\n\nthe instruction was mistaken for the reasons that Thomas & Betts\n\ngives, the record does not support a finding of prejudice. See\n\nFigueroa v. Aponte-Roque, 864 F.2d 947, 951 (1st Cir. 1989). And\n\nso, for this reason, the challenge fails.\n\n In this regard, we note that, as we have already\n\nexplained in connection with the challenge that Thomas & Betts\n\nbrings to the District Court's failure to have given the breach of\n\ncontract instruction, none of the evidence that Thomas & Betts\n\nidentifies concerning New Albertson's failure to make access to\n\nits property available in 2007, 2008, or 2009 suffices to permit\n\na jury to find that New Albertson's unreasonably denied Thomas &\n\nBetts such access. For that reason, we concluded that none of\n\nthat evidence sufficed to support a finding that New Albertson's\n\n\n\n\n - 36 -\n\fthereby breached the duty to cooperate in good faith that the joint\n\nremediation agreement imposed.\n\n At most, then, the evidence that Thomas & Betts relies\n\non to show prejudice supportably shows only that New Albertson's\n\nfailed to provide access, not that it failed to provide reasonable\n\naccess. Accordingly, we do not see how, even if the instruction\n\nerred in describing § 5(a)(5) to preclude a finding of liability\n\nbased on a denial of reasonable access simply because the party\n\ndenying such access \"was not otherwise liable\" for a release of\n\nPCBs, Thomas & Betts was harmed by that error.\n\n 4.\n\n The next instruction that Thomas & Betts challenges\n\nconcerns the approximately $2.9 million that New Albertson's paid\n\nThomas & Betts pursuant to the joint remediation agreement. The\n\nparties stipulated that this nearly $2.9 million amount\n\nconstituted an interim payment to Thomas & Betts pursuant to the\n\njoint remediation agreement for the response costs that Thomas &\n\nBetts had incurred.\n\n Consistent with that stipulation, the District Court,\n\nwhile instructing the jury regarding the approximately $12.7\n\nmillion in response costs incurred by Thomas & Betts, told the\n\njury:\n\n Let me pause for a moment and say, because I\n think it will occur to you, but what about the\n 2.9 million that it's undisputed New\n\n\n - 37 -\n\f Albertsons has already paid to Thomas & Betts?\n The way we've worked that out is I'm taking\n care of that. It's undisputed as to that. If\n when all the things you find it turns out that\n New Albertsons owes more money than that to\n Thomas & Betts, whatever that amount is, I'm\n going to subtract the 2.9 million from that.\n If when the dust settles it's less than that,\n I'm going to have Thomas & Betts reimburse New\n Albertsons for that amount of money.\n\n Thomas & Betts did not object to this instruction at the\n\ntime that it was given. Our review, therefore, is only for plain\n\nerror. Sony BMG Music Entm't, 660 F.3d at 503. Thomas & Betts\n\nmakes no argument, however, as to how it can satisfy that high\n\nbar. This failure alone dictates that Thomas & Betts must lose on\n\nthis issue. See, e.g., Edelkind, 467 F.3d at 797; González-\n\nMercado, 402 F.3d at 301-02.\n\n Moreover, Thomas & Betts could not prevail even if it\n\nhad properly preserved this challenge. Thomas & Betts contends\n\nthat the wording of the instruction created \"confusion.\" Thomas\n\n& Betts points out that the verdict form asked the jury to\n\napportion response costs between Thomas & Betts and New Albertson's\n\nwith respect to two seemingly distinct pools of money. Thomas &\n\nBetts notes in this regard that Question One on the special verdict\n\nform asked the jury about the $12.7 million in response costs that\n\nThomas & Betts had incurred, while Question Two on the special\n\nverdict form asked the jury about the $790,000 in response costs\n\nthat New Albertson's had incurred. According to Thomas & Betts,\n\n\n\n - 38 -\n\fhowever, the District Court's instruction did not make clear\n\nwhether the roughly $2.9 million that New Albertson's had paid to\n\nThomas & Betts under the joint remediation agreement was to be\n\nconsidered as part of the pool of money referenced in Question One\n\nor as part of the pool of money referenced in Question Two.\n\n But, as this challenge to the instruction concerns only\n\nits wording, our review would be for an abuse of discretion even\n\nif it were not forfeited. Mejías-Aguayo v. Doreste-Rodríguez, 863\n\nF.3d 50, 57 n.5 (1st Cir. 2017). The question thus would be\n\n\"whether the jury instructions as a whole 'adequately explained\n\nthe law or whether they tended to confuse or mislead the jury on\n\ncontrolling issues.'\" McDonald v. Town of Brookline, 863 F.3d 57,\n\n65 (1st Cir. 2017) (quoting Federico v. Order of Saint Benedict in\n\nR.I., 64 F.3d 1, 4 (1st Cir. 1995)).\n\n When considered in the context of the instructions as a\n\nwhole, and given the discretion that we afford district courts to\n\nchoose the wording of their instructions, the instruction sufficed\n\nto make clear that the roughly $2.9 million should be considered\n\npart of the $12.7 million in response costs that Thomas & Betts\n\nhad incurred. After all, the District Court explained to the jury\n\nimmediately before giving the instruction that it was undisputed\n\nthat Thomas & Betts had incurred $12.7 million in response costs;\n\nthat \"of that amount\" New Albertson's had paid roughly $2.9 million\n\nto Thomas & Betts; and that the jury had to determine which\n\n\n - 39 -\n\fentities were liable to Thomas & Betts for those costs incurred by\n\nThomas & Betts. Accordingly, the challenge that Thomas & Betts\n\nbrings to this instruction is without merit.\n\n 5.\n\n The last instruction that Thomas & Betts focuses on in\n\nchallenging the District Court's denial of its motion for new trial\n\nstates in part that \"Thomas & Betts has to prove [the amount of\n\nresponse costs Thomas & Betts incurred] and they have to prove\n\nthat they incurred costs in performing the response actions. The\n\nresponse actions here are cleaning up Middle and Lower Mother\n\nBrook.\" The instruction then goes on to state that Thomas & Betts\n\nhad to prove \"that it was the release of PCBs [by the parties from\n\nwhich Thomas & Betts seeks to recover] is what caused Thomas &\n\nBetts to incur the response costs, that is the release of PCBs now\n\non the banks or into the brook itself was a substantial\n\ncontributing factor in bringing about the response costs.\"\n\n Thomas & Betts contends that this instruction -- by using\n\nthe phrase \"substantial contributing factor\" -- wrongly instructed\n\nthe jury that the defendants, including Dampney, were entitled to\n\na de minimis defense to being found liable under § 5 of Chapter\n\n21E. Thus, Thomas & Betts goes on to contend, the jury could have\n\nfound on that mistaken basis that these defendants were not\n\nrequired to reimburse Thomas & Betts for response costs under § 4.\n\nIn pressing this point, Thomas & Betts contends that because\n\n\n - 40 -\n\fAcushnet Co. v. Mohasco Corp., 191 F.3d 69, 72, 76-78 (1st Cir.\n\n1999), precludes such a de minimis defense under CERCLA, Chapter\n\n21E must be construed to preclude such a defense as well. See\n\nJohn S. Boyd Co., 992 F.2d at 404 n.3.\n\n Thomas & Betts, however, misapprehends the instruction.\n\nThe instruction merely permits a court to take account of the de\n\nminimis nature of a release or threatened release in determining\n\nthe equitable allocation of response costs under § 4 of Chapter\n\n21E. Yet, Massachusetts law allows a court to do just that. See\n\nJohn Beaudette, Inc. v. J.P. Noonan Transp., Inc., 644 N.E.2d 218,\n\n220-21 (Mass. 1995) (construing Chapter 21E). In fact, Acushnet\n\nitself allows a court to do the same in apportioning equitable\n\nshares of similar cleanup costs under CERCLA. 191 F.3d at 76-78\n\n(construing CERCLA).\n\n Thomas & Betts's briefing on appeal could be read to\n\nargue that the instruction was problematic for an additional but\n\nrelated reason. Thomas & Betts appears to contend that the\n\ninstruction was worded in such a way as to suggest incorrectly the\n\nfollowing: The de minimis exception applies not only to the\n\nequitable allocation of response costs among \"liable\" parties\n\nunder § 4 but also to the threshold question of whether a \"person\"\n\nis \"liable\" pursuant to § 5 of Chapter 21E for a release or\n\n\n\n\n - 41 -\n\fthreatened release of PCBs, such that the \"person\" may be \"liable\"\n\nunder § 4 for any share at all of another's response costs.\n\n But, Thomas & Betts did not raise such an objection to\n\nthe instruction's allegedly confusing wording at the time that the\n\ninstruction was given. Nor does Thomas & Betts argue on appeal\n\nthat the instruction was so confusingly worded in this respect\n\nthat it constituted plain error. See, e.g., Edelkind, 467 F.3d at\n\n797; González-Mercado, 402 F.3d at 301-02. And, in any event,\n\ninsofar as that is the objection that Thomas & Betts now means to\n\nmake, the text of the instruction simply does not permit a reading\n\nthat would give rise to this sort of confusion.\n\n C.\n\n The final challenge to the District Court's denial of\n\nthe motion for new trial that Thomas & Betts brings is that the\n\njury's special verdict was inconsistent in a key respect. Our\n\nreview is de novo, Trull v. Volkswagen of Am., Inc., 320 F.3d 1,\n\n5-6 (1st Cir. 2002), but \"[a] special verdict will be upheld if\n\nthere is a view of the case which makes the jury's answers\n\nconsistent.\" McIsaac v. Didriksen Fishing Corp., 809 F.2d 129,\n\n133 (1st Cir. 1987).11\n\n\n\n 11 The standard of review for verdict inconsistency in\ndiversity cases is a matter of procedure and thus governed by\nfederal law. See McIsaac, 809 F.2d at 133 (applying federal\nstandard of review to claim of verdict inconsistency in a diversity\ncase).\n\n\n - 42 -\n\f The jury found, as to Question One on the special verdict\n\nform, that New Albertson's was not \"liable to\" Thomas & Betts for\n\nany of its response costs. The jury found, by contrast, in\n\nresponse to Question Two on the special verdict form, that other\n\nparties were \"liable to\" New Albertson's for only 75 percent of\n\nits response costs.\n\n Thomas & Betts contends that these findings cannot be\n\nreconciled. The parties clash over whether Thomas & Betts\n\nsufficiently preserved this challenge. They thus dispute whether\n\nit has been waived and whether, if it has not, it at least has\n\nbeen forfeited.\n\n Thomas & Betts did arguably waive this objection by\n\nrepeatedly asserting to the District Court, in defending the use\n\nof the verdict form, that it would be permissible for the jury to\n\nmake different findings in response to Questions One and Two. See\n\nCorreia v. Fitzgerald, 354 F.3d 47, 57 (1st Cir. 2003) (explaining\n\nthat \"failure to object to an alleged inconsistency while the jury\n\nis still in the box forfeits a party's objection, subject only to\n\nthe possibility of relief for plain error.\"). But, even if we\n\nwere to conclude that Thomas & Betts's failure to object to the\n\nverdict form merely forfeited the issue, Thomas & Betts's\n\ninconsistent-verdicts challenge would still fail.\n\n Thomas & Betts makes no argument, after all, that any\n\nerror here constituted plain error. See United States v. Zannino,\n\n\n - 43 -\n\f895 F.2d 1, 17 (1st Cir. 1990). We also conclude, however, that\n\nThomas & Betts's argument would fail even if we were to treat the\n\nchallenge as preserved.\n\n The defendants' joint response contends that the jury\n\nreasonably could be understood to have found -- perfectly\n\nconsistently -- two things simultaneously. The jury could have\n\nfound that New Albertson's was not \"liable to\" Thomas & Betts,\n\nbased on § 4 of Chapter 21E, for the response costs that Thomas &\n\nBetts had incurred. The jury also could have found, at the same\n\ntime, that New Albertson's failed to meet its own separate burden\n\nto prove that Thomas & Betts was \"liable to\" it under that same\n\nsection of Chapter 21E for 100 percent (rather than merely 75\n\npercent, as the jury found) of its own response costs.\n\n Thomas & Betts attempts to show that the jury's verdicts\n\ncannot be reconciled in this manner, but its effort to do so fails.\n\nThomas & Betts premises this effort to demonstrate that the\n\nreconciliation of the verdicts proposed by the defendants' joint\n\nresponse is untenable on its reading of the SJC's decision in\n\nMartignetti v. Haigh-Farr Inc., 680 N.E.2d 1131 (Mass. 1997).\n\nThomas & Betts points out that Martignetti states that, under § 4\n\nof Chapter 21E, \"100% of the reasonable response costs must be\n\napportioned among the liable parties.\" Id. at 1141-42.\n\nAccordingly, Thomas & Betts contends, Martignetti forecloses the\n\n\n\n\n - 44 -\n\freconciliation of the verdicts offered by the defendants' joint\n\nresponse in the following way.\n\n Thomas & Betts argues that, because the jury allocated\n\nonly 75 percent of the response costs that New Albertson's incurred\n\nto a party other than New Albertson's, the jury necessarily\n\nconcluded that New Albertson's was \"liable\" under Chapter 21E.\n\nOtherwise, Thomas & Betts maintains, the jury could not have found\n\nThomas & Betts \"liable to\" New Albertson's for less than all of\n\nits response costs. In consequence, Thomas & Betts proceeds to\n\nargue, the proposed reconciliation of the verdicts necessarily and\n\nimpermissibly depends on attributing to the jury -- in violation\n\nof the passage quoted above from Martignetti -- an allocation of\n\nless than 100 percent of the response costs among the \"liable\"\n\nparties.\n\n Thomas & Betts, however, misunderstands the passage in\n\nMartignetti on which it relies. In that case, the SJC construed\n\n§ 4 of Chapter 21E merely to require that response costs be shared\n\n\"among parties whose underlying liability to the Commonwealth is\n\nimposed by the provisions of § 5.\" Id. (emphasis added). In other\n\nwords, Martignetti does hold that, under § 4, a party must at least\n\nbe \"liable to the Commonwealth\" under § 5 in order to be \"liable\n\nto\" another party, under § 4, for the response costs that party\n\nhad incurred. But, Martignetti does not hold that § 5 requires\n\nthat every party who is \"liable to the Commonwealth\" is also\n\n\n - 45 -\n\fnecessarily, under § 4, \"liable\" to other parties for the response\n\ncosts that each of them had incurred. Mass. Gen. Laws ch. 21E,\n\n§ 5(b). Rather, a person who is \"liable to the Commonwealth\"\n\nsolely under § 5(a)(1), i.e., a current owner, is not liable to\n\nparties seeking reimbursement under § 4 -- unless the party seeking\n\nreimbursement is also \"liable to the Commonwealth\" solely under\n\n§ 5(a)(1) -- if the current owner can show, per § 5(b), that it\n\ndid not own the site at the time of the release in question and\n\ndid not \"cause or contribute\" to the release.\n\n This parsing of Martignetti matters, moreover, in the\n\nfollowing way. In considering this challenge to the verdicts, we\n\n\"must attempt to reconcile the jury's findings, by exegesis if\n\nnecessary.\" Acevedo-Diaz v. Aponte, 1 F.3d 62, 74 n.15 (1st Cir.\n\n1993) (quoting Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108,\n\n119 (1963)). And, on the basis of this parsing, we conclude,\n\nconsistent with Martignetti, that the jury's verdicts may be\n\nreconciled in the manner that the defendants' joint response\n\nproposes without running afoul of Chapter 21E.\n\n Chapter 21E permitted the jury to find that New\n\nAlbertson's was \"liable to\" the Commonwealth under § 5(a)(1) for\n\nthe release or threat of release of PCBs into Mother Brook and\n\nthus incurred response costs of its own. But, Chapter 21E did not\n\nthereby require the jury also to find that, under § 4, New\n\nAlbertson's was \"liable to\" Thomas & Betts for any (let alone all)\n\n\n - 46 -\n\fof its response costs. A party \"liable to\" the Commonwealth under\n\n§ 5(a)(1) need not also be found, under § 4, \"liable to\" any other\n\nparty that incurred response costs. And, the jury could also have\n\nfound, New Albertson's was entitled to reimbursement under § 4 by\n\nThomas & Betts for the portion of the response costs New\n\nAlbertson's incurred that New Albertson's could prove that Thomas\n\n& Betts owed to it, even though New Albertson's could not show\n\nunder § 4 that Thomas & Betts was liable to it for all the response\n\ncosts that New Albertson's had incurred.\n\n Thomas & Betts, moreover, makes no argument that the\n\nrecord fails to provide adequate evidentiary support for any such\n\nfindings. And that is no surprise. The jury found that New\n\nAlbertson's did not \"cause[] or contribute[] to the release of\n\nPCBs to the banks or streambed of Middle or Lower Mother Brook[.]\"\n\nThat is the finding that, pursuant to § 5(b), a jury has to make\n\nin order for the jury to find that a party that is \"liable to\" the\n\nCommonwealth under § 5(a)(1) is not, under § 4, \"liable to\" other\n\nparties for a share of their response costs.\n\n We thus find no inconsistency in the verdicts. And,\n\nhaving thus dispensed with the challenges that Thomas & Betts\n\nbrings to the judgment concerning its claims based on § 4 of\n\nChapter 21E, we turn to the challenges that the other parties to\n\nthese consolidated appeals bring.\n\n\n\n\n - 47 -\n\f III.\n\n We start by considering the challenges brought by Alfa\n\nLaval, a centrifuge manufacturer and a past owner of the south\n\nbank property across the canal from New Albertson's property. We\n\nfind no merit in them.\n\n A.\n\n The jury found that Alfa Laval, under § 4 of Chapter\n\n21E, was \"liable to\" Thomas & Betts for 14 percent of its response\n\ncosts but was not \"liable to\" New Albertson's for any of its\n\nresponse costs. Alfa Laval contends both that the evidence did\n\nnot suffice to support the judgment that it was \"liable to\" Thomas\n\n& Betts under § 4 for the response costs that it had incurred and\n\nthat the District Court made two reversible trial errors. We\n\naddress these three arguments in turn.\n\n 1.\n\n Alfa Laval unsuccessfully pressed its sufficiency\n\nchallenge in both a (renewed) motion for judgment as a matter of\n\nlaw under Rule 50(b) of the Federal Rules of Civil Procedure and\n\nin an alternative motion for a new trial under Rule 59 of the\n\nFederal Rules of Civil Procedure. A renewed motion for judgment\n\nas a matter of law under Rule 50(b) may be granted \"only if a\n\nreasonable person, on the evidence presented, could not reach the\n\nconclusion that the jury reached,\" and we review its denial de\n\nnovo. Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st\n\n\n - 48 -\n\fCir. 2008). A motion for a new trial under Rule 59 may be granted\n\nonly \"if the verdict is against the law, against the weight of the\n\ncredible evidence, or tantamount to a miscarriage of justice,\" and\n\nwe review its denial for an abuse of discretion. Teixeira v. Town\n\nof Coventry, 882 F.3d 13, 16 (1st Cir. 2018)(quoting Casillas-Díaz\n\nv. Palau, 463 F.3d 77, 81 (1st Cir. 2006)).\n\n Alfa Laval contends that the evidence was insufficient\n\nfor a jury reasonably to find an adequate basis for its liability\n\nunder either § 5(a)(2) or § 5(a)(5) of Chapter 21E. Thus, Alfa\n\nLaval contends, a jury could not reasonably find it liable, under\n\n§ 4 of that Chapter, for an equitable share of the response costs\n\nthat Thomas & Betts incurred.12 Because the rule in our circuit\n\nin civil cases is that a new trial that has been requested is\n\n\"usually warranted\" if the evidence is insufficient with respect\n\nto any one of multiple theories covered by a special verdict\n\nquestion, Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 29-30\n\n(1st Cir. 2004) (quoting Kerkhof v. MCI Worldcom, Inc., 282 F.3d\n\n44, 52 (1st Cir. 2002)), we address each of Alfa Laval's\n\nsufficiency challenges in turn.\n\n Under § 5(a)(2), a \"person\" is liable both to the\n\nCommonwealth and to parties seeking reimbursement under § 4 if \"at\n\n\n 12We note, though, that Alfa Laval does not argue that,\ninsofar as the evidence does suffice to show that it could be\nallocated an equitable share of the response costs of others under\n§ 4, the share allocated to it was too high.\n\n\n - 49 -\n\fthe time of storage or disposal\" that person \"owned or operated\n\nany site at or upon which such hazardous material was stored or\n\ndisposed of and from which there is or has been a release or threat\n\nof release of hazardous material.\" Mass. Gen. Laws ch. 21E,\n\n§ 5(a)(2). Alfa Laval contends that Thomas & Betts failed to\n\nprovide an adequate evidentiary basis -- as opposed to mere\n\n\"conjecture or speculation\" -- upon which a jury could rely to\n\nfind that it \"stored or used PCBs during its ownership/operation\n\nof the 1415 property.\"\n\n All parties stipulated that American Tool & Machine\n\nCompany (\"AT&M\"), which owned and operated that property before\n\nAlfa Laval purchased it, caused or contributed to a release of\n\nPCBs because of its industrial operations on that property. And,\n\nAlfa Laval contends, the PCBs on its property are attributable\n\nonly to AT&M's prior operations on that site and not to Alfa\n\nLaval's own activity on that property after purchasing AT&M's\n\nbusiness operations in 1968.\n\n But, Thomas & Betts contends, \"[l]ooking at the record\n\nas a whole[,] . . . it was eminently reasonable for a jury to\n\nconclude that Alfa Laval, which bought AT&M's tool-making\n\noperation lock, stock and barrel, also used and disposed of PCBs\n\nand is therefore liable under § 5(a)(2).\" To support this\n\ncontention, Thomas & Betts points to the following facts: \"All of\n\nthe employees, [including] the foreman and the manager for Alfa\n\n\n - 50 -\n\fLaval came directly from AT&M[;]\" Alfa Laval manufactured the same\n\nproducts as AT&M; and Alfa Laval \"used cutting, hydraulic and\n\nlubricating oils in the manufacture of those products, as did\n\nAT&M.\" Thomas & Betts further notes that Alfa Laval presented no\n\nevidence to the jury that its operations differed in any material\n\nrespects from AT&M's.\n\n We agree that, on this record, an inference of continued\n\nPCB usage was \"plainly reasonable in the absence of any evidence\n\ncutting against it.\" W. Props. Serv. Corp. v. Shell Oil Co., 358\n\nF.3d 678 (9th Cir. 2004); see also United States v. Davis, 261\n\nF.3d 1, 32 (1st Cir. 2001) (\"[D]irect evidence is not a\n\nprerequisite to proving the elements of liability in a contribution\n\naction [under CERCLA].\"); Niagara Mohawk Power Corp. v. Chevron\n\nU.S.A., 596 F.3d 112, 131 (2d Cir. 2010) (\"[T]here is nothing\n\nobjectionable in basing findings [for purposes of liability in\n\nCERCLA] solely on circumstantial evidence, especially where the\n\npassage of time has made direct evidence difficult or impossible\n\nto obtain.\" (quoting Franklin Cty. Convention Facilities Auth. v.\n\nAm. Premier Underwriters Inc., 240 F.3d 534, 547 (6th Cir. 2001))).\n\nThus, Alfa Laval's first challenge to the sufficiency of the\n\nevidence fails.\n\n Moreover, Thomas & Betts contends that spreading\n\ncontaminated soil during construction is properly considered\n\n\"disposal\" for purposes of § 5(a)(2), based in part on precedent\n\n\n - 51 -\n\fconstruing that term in CERCLA. See Tanglewood E. Homeowners v.\n\nCharles-Thomas, Inc., 849 F.2d 1568, 1573 (5th Cir. 1988);\n\nBonnieview Homeowners Ass'n v. Woodmont Builders, LLC, 655 F. Supp.\n\n2d 473, 492 (D.N.J. 2009) (finding that under CERCLA \"a 'disposal'\n\nmay occur when a party disperses contaminated soil during the\n\ncourse of grading and filling a construction site\" (quoting Redwing\n\nCarriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1510 (11th\n\nCir. 1996))). We have previously explained that \"CERCLA is in\n\nmany ways analogous to the Massachusetts statute,\" and that \"the\n\nMassachusetts courts construe [Chapter 21E] in line with the\n\nfederal decisions absent compelling reasons to the contrary or\n\nsignificant differences in the content.\" John S. Boyd Co., Inc.\n\nv. Bos. Gas. Co., 992 F.2d 401, 404 n.3 (1st Cir. 1993). Alfa\n\nLaval, for its part, does contest this legal point, but only in\n\nits reply brief, which it may not do.13 See Waste Mgmt. Holdings,\n\nInc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000).\n\n We turn, then, to Alfa Laval's contention that the record\n\nfailed to provide a supportable basis for a jury to find Alfa Laval\n\nliable under § 5(a)(2) on the basis of its construction-related\n\n\n\n 13 Alfa Laval's reply brief, we note, concludes that the\nconduct at issue does not constitute a \"disposal\" for purposes of\n§ 5(a)(2) solely on the basis of a Massachusetts Superior Court\ncase, Byrnes v. Massachusetts Port Auth., No. 920178, 1994 WL\n879644 (Mass. Super. Mar. 2, 1994), that concerned \"leaking\" and\n\"leaching\" of contaminants and not the kind of construction-\nrelated activities that are at issue here.\n\n\n - 52 -\n\fgrading and excavation activities. Thomas & Betts introduced\n\naerial photographs of the site that showed that Alfa Laval\n\ndemolished buildings, engaged in construction, graded an area to\n\nbuild a parking lot, and otherwise disturbed the soil on the\n\nproperty where significant PCB concentrations were later found.\n\nAlfa Laval responds that Thomas & Betts's expert impermissibly\n\nprovided \"speculation, conjecture and generalization\" in claiming\n\nthat these activities caused releases of PCBs into Mother Brook.\n\n But, a jury could have drawn a reasonable inference that\n\n\"[t]he amount of earthwork and [] disturbance of the soil\" and the\n\nundisputed fact that Alfa Laval \"removed certain improvements from\n\nthe property[] and added a new building and parking surface\" showed\n\nthat there was a release of PCBs from the property into Mother\n\nBrook during Alfa Laval's period of ownership and thus that Alfa\n\nLaval was liable under § 5(a)(2). See Davis, 261 F.3d at 32;\n\nNiagara Mohawk Power Corp., 596 F.3d at 131. Thus, we conclude\n\nthat the concerns that Alfa Laval raises about Thomas & Betts's\n\nexpert's testimony go only to the \"weight, not sufficiency,\" of\n\nthe evidence. See Milone v. Moceri Family, Inc., 847 F.2d 35, 40\n\nn.5 (1st Cir. 1988). Accordingly, we reject Alfa Laval's challenge\n\n\n\n\n - 53 -\n\fthat a reasonable jury could not have found it liable under\n\n§ 5(a)(2).14\n\n Alfa Laval separately contends that there was\n\ninsufficient evidence for a jury to find that it was liable to\n\nThomas & Betts under § 5(a)(5). That provision imposes liability\n\nto the Commonwealth and to parties seeking reimbursement under § 4\n\non \"any person who otherwise caused or is legally responsible for\n\na release or threat of release of oil or hazardous material from\n\na . . . site.\" Mass. Gen. Laws ch. 21E, § 5(a)(5). Alfa Laval\n\ncorrectly contends that, to prevail on a § 5(a)(5) theory of\n\nliability, \"a plaintiff must first establish both that the\n\ndefendant caused the release and that the release caused the\n\ncontamination.\" And, Alfa Laval notes, \"cause\" in this context\n\n\"means legal or proximate cause.\" One Wheeler Rd. Assocs. v.\n\nFoxboro Co., No. 90-12873, 1995 WL 791937, at *8 (D. Mass. Dec.\n\n13, 1995).\n\n Alfa Laval argues that this standard of liability is\n\n\"higher than that applied to § 5(a)(2).\" Thus, for the same\n\n\n\n 14 To the extent Alfa Laval is making the separate argument\nthat the release of PCBs from its property was not a \"but for\"\ncause of the contamination and thus that it is not \"liable\" under\n§ 5(a)(5) of Chapter 21E, this challenge also fails. Alfa Laval\npoints to testimony from Dr. Neil Shifrin to show that the\ncontamination from Thomas & Betts's property was \"more than\nsufficient\" to cause the contamination in Mother Brook. But this\nis merely another form of a de minimis defense to liability under\n§ 5, which is expressly foreclosed by Acushnet. 191 F.3d at 71.\n\n\n - 54 -\n\freasons that it contends that Thomas & Betts failed to prove\n\n§ 5(a)(2) liability, Alfa Laval argues that Thomas & Betts also\n\nfalls short on this theory as well.\n\n Alfa Laval's only argument that Thomas & Betts failed to\n\nprovide sufficient evidence of liability under § 5(a)(5), however,\n\nis that Thomas & Betts failed to provide adequate evidence of\n\ncausation of a release. But, as we have already explained, a\n\nreasonable jury could have found that Alfa Laval's industrial\n\noperations on the site involved the active use, storage, and\n\ndisposal of PCBs and that releases of PCBs occurred at this time.\n\nAnd, as we also have already explained, a jury could additionally\n\nhave concluded that construction-related activities by Alfa Laval\n\non the site further caused releases of PCBs.\n\n Moreover, Alfa Laval makes no argument -- aside from\n\nmerely pointing out that the legal standard for liability is higher\n\nunder § 5(a)(5) than it is under § 5(a)(2) -- that, even if a jury\n\ncould reasonably have found these facts and imposed liability\n\npursuant to § 5(a)(2), these actions by Alfa Laval do not suffice\n\nalso to show § 5(a)(5) liability. Thus, we fail to see why a\n\nreasonable jury could not conclude that Alfa Laval \"legal[ly] or\n\nproximate[ly] caused,\" One Wheeler Rd. Assocs., 1995 WL 791937, at\n\n*8, a release of PCBs into Mother Brook based on its industrial\n\nand construction activities. Accordingly, we reject Alfa Laval's\n\nchallenge to the verdict on sufficiency grounds.\n\n\n - 55 -\n\f 2.\n\n Having rejected the challenges to the sufficiency of the\n\nevidence of liability under § 5, such that Alfa Laval could be\n\nfound \"liable to\" Thomas & Betts under § 4, we now turn to Alfa\n\nLaval's challenges to certain alleged trial errors. The first\n\nchallenge is to the District Court's denial of Alfa Laval's motion\n\nfor a new trial because of an instructional error that it contends\n\nthat the District Court made during its charge to the jury. The\n\ninstruction concerned Alfa Laval's potential liability under § 4\n\nto Thomas & Betts for reimbursement of its response costs based on\n\nAlfa Laval being the alleged successor to a company -- AT&M --\n\nthat previously owned the site.\n\n The District Court instructed the jury that \"Thomas &\n\nBetts has to prove what's called 'successor liability'\" and that\n\nthe jury should consider four factors in deciding whether Thomas\n\n& Betts has proven such. The District Court then listed the four\n\nfactors that must be considered with respect to this de-facto-\n\nmerger exception to the default no-liability rule. After doing\n\nso, the District Court also told the jury that: \"No single one\n\nfactor is necessary or sufficient, you must determine the substance\n\nof the agreement of the parties, is it implicit that Alfa Laval\n\nwould succeed to the legal obligations of [AT&M]?\"\n\n Alfa Laval objected to this instruction on the ground\n\nthat the District Court had not \"talked about the general rule\n\n\n - 56 -\n\fthat there is no liability and that there has to be an element of\n\nproof proving up an exception.\" The District Court overruled that\n\nobjection, and Alfa Laval now presses that same challenge to the\n\ninstruction on appeal.15\n\n We review de novo whether a jury instruction in context\n\n\"presented the relevant issues to the jury fairly and adequately.\"\n\nGoodman, 380 F.3d at 47. Here, however, the District Court plainly\n\ninstructed the jury that \"Thomas & Betts has to prove what's called\n\n'successor liability.'\" But, because \"judges generally need not\n\nmimic the precise wording of a party's preferred instruction,\"\n\nUnited States v. Denson, 689 F.3d 21, 26 (1st Cir. 2012), we reject\n\nAlfa Laval's challenge to this jury instruction.\n\n 3.\n\n Alfa Laval's challenge to the other asserted trial error\n\nconcerns the District Court's exclusion of certain testimony by an\n\nexpert witness, James O'Brien. Alfa Laval did not make this\n\n\n\n 15Alfa Laval also contends on appeal that the District Court\nerred by not instructing the jury regarding the other\nexceptions -- beyond the exception for a de-facto merger -- to the\ndefault no-liability rule. We agree with Thomas & Betts, however,\nthat Alfa Laval did not preserve this issue below. Nor does Alfa\nLaval make a plain error argument. See Chestnut v. City of Lowell,\n305 F.3d 18, 20 (1st Cir. 2002) (describing the plain error test).\nIn any event, we fail to see how Alfa Laval could have been\nprejudiced by an instruction that minimized the grounds on which\nAlfa Laval could be found liable. See Goodman, 380 F.3d at 47\n(explaining that instructional error warrants a new trial only\nupon a showing of prejudice).\n\n\n\n - 57 -\n\fchallenge before the District Court in either its motion for a new\n\ntrial or in its motion for judgment as a matter of law. Thomas &\n\nBetts, however, makes no argument that our review should thus be\n\nfor plain error, let alone that the issue is waived. In any event,\n\nwe conclude that Alfa Laval fails even under the more generous\n\nabuse of discretion standard that we apply when reviewing a\n\nDistrict Court's decision to exclude expert testimony. Wilder v.\n\nEberhart, 977 F.2d 673, 676 (1st Cir. 1992).16\n\n At trial, O'Brien attempted to testify as to the\n\nlikelihood that PCBs flowed from Alfa Laval's property to the south\n\nbank on the basis of \"total PCB\" data. Thomas & Betts objected to\n\nthis testimony on the basis that it constituted a \"new opinion.\"\n\nThe District Court sustained this objection. See Poulis-Minott v.\n\nSmith, 388 F.3d 354, 358 (1st Cir. 2004) (explaining that the\n\nfailure to disclose an expert opinion before trial precludes the\n\nintroduction of that opinion at trial), and O'Brien was prevented\n\nfrom testifying about that opinion at trial.\n\n\n\n\n 16 Alfa Laval separately contends that the District Court's\nfailure to rule comprehensively on Thomas & Betts's pretrial motion\nto exclude reference, including by O'Brien, to so-called Aroclor\ndata was an abdication of the District Court's gatekeeping role.\nAroclor data differentiates between types of PCBs. Yet Alfa Laval\ncites no authority to support its contention that the District\nCourt's ruling on the presentation of the Aroclor data on an\nexpert-by-expert basis constitutes an abdication of this\ngatekeeping role. Accordingly, this challenge is waived for lack\nof development. Zannino, 895 F.2d at 17.\n\n\n - 58 -\n\f Alfa Laval now contends on appeal that the District Court\n\nerred because O'Brien's pre-trial expert report itself referenced\n\n\"total PCB [] data\" that were available for various sediment\n\nsamples. Thus, Alfa Laval contends, the proposed testimony that\n\nthe District Court barred O'Brien from giving did not constitute\n\na new opinion because the pre-trial report had already disclosed\n\nit.\n\n O'Brien did not reach any conclusions, however, in his\n\npre-trial report on the basis of total PCB data. Nor did he\n\ndisclose in that report -- or elsewhere -- the methodology by which\n\nhe would reach any such conclusions. Thus, the mere fact that\n\nO'Brien's pre-trial report disclosed that he had reviewed total\n\nPCB data did not preclude the District Court from finding, in its\n\ndiscretion, that the opinions and conclusions that he drew from\n\nthat data were \"new\" and thus inadmissible because they were not\n\npreviously disclosed. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,\n\n146 (1997) (finding that district courts do not abuse their\n\ndiscretion when they decline to admit opinion evidence that \"is\n\nconnected to existing data only by the ipse dixit of the expert\"\n\nor where there is \"simply too great an analytical gap between the\n\ndata and the opinion proffered\"); see also Licciardi v. TIG Ins.\n\nGrp., 140 F.3d 357, 363 (1st Cir. 1998) (explaining that the\n\ndisclosure requirements regarding expert opinions are intended \"to\n\nalleviate the heavy burden placed on a cross-examiner confronted\n\n\n - 59 -\n\fby an opponent's expert whose testimony had just been revealed for\n\nthe first time in open court\" (internal quotations omitted)).\n\n IV.\n\n We now turn to the appeal by the Charter School Parties.\n\nThe jury found the Charter School Parties \"liable to\" Thomas &\n\nBetts, with respect to its claims based on § 4 of Chapter 21E, for\n\n1 percent of the response costs that it had incurred. The District\n\nCourt entered judgment against the Charter School Parties on that\n\nbasis. The Charter School Parties challenge the District Court's\n\ndenial of its renewed motion for judgment as a matter of law. They\n\nargued in that motion that the evidence was insufficient as a\n\nmatter of law to support a finding that they were \"liable to\"\n\nThomas & Betts under § 4 of Chapter 21E for any of its response\n\ncosts, and that, to the extent that they were liable, the evidence\n\ndid not suffice to support the finding that they were responsible\n\nfor 1 percent of the response costs, small though that allocation\n\nis. See Fed. R. Civ. P. 50(b). Accordingly, they contend that\n\nbecause there is insufficient evidence on any of the theories to\n\nsupport the judgment below, they are entitled to judgment as a\n\nmatter of law. Judgment as a matter of law is warranted only if\n\nthe evidence \"is so one-sided that the movant is plainly entitled\n\nto judgment\" such that \"reasonable minds could not differ as to\n\nthe outcome.\" Gibson v. City of Cranston, 37 F.3d 731, 735 (1st\n\n\n\n\n - 60 -\n\fCir. 1994). Our review of the District Court's denial of such a\n\nmotion is de novo. See Visible Sys., 551 F.3d at 71.\n\n A.\n\n It is true, as the Charter School Parties point out,\n\nthat they did not become the owners of the south bank property\n\nabutting Mother Brook until September of 2008. But, contrary to\n\nthe Charter School Parties' contention, Thomas & Betts offered\n\nsufficient evidence from which the jury could have reasonably found\n\nthat, after the Charter School Parties acquired the south bank\n\nproperty in 2008, there was a \"release or threat of release\" from\n\nor at that property. Mass. Gen. Laws ch. 21E, § 5(a)(1). Thus,\n\na jury could reasonably find that the Charter School Parties were\n\n\"liable to\" Thomas & Betts for at least some portion of its\n\nresponse costs under § 4, as the jury could have found that, under\n\n§ 5(a)(1), the Charter School Parties were \"liable\" for a \"release\n\nor threat of release\" of PCBs as a current owner of a property.\n\nId.\n\n In arguing otherwise, the Charter School Parties devote\n\na great deal of time and attention to what the evidence showed\n\nabout a single drain basin, discovered on its property in 2009.\n\nThey contend that this evidence alone does not permit a jury\n\nreasonably to find that there had been a release or threat of\n\nrelease of PCBs into Mother Brook at all during their period of\n\nownership of the property. The Charter School Parties emphasize\n\n\n - 61 -\n\fthat the evidence of the amount of PCBs traceable to that basin\n\nwas simply too miniscule to support any such finding. Thus, the\n\nCharter School Parties contend that they fall within the exception\n\nfound in § 5(b). That exception provides that parties whose\n\nliability under § 5 is premised on § 5(a)(1) are liable only to\n\nthe Commonwealth -- and thus not to other parties in a § 4\n\nreimbursement suit -- if the release occurred prior to their period\n\nof ownership and they did not \"cause or contribute\" to the release\n\nor threat of release in question. Id. § 5(b).\n\n But, even if we accept that point about the drain basin\n\nevidence, there is still the testimony of an expert for Thomas &\n\nBetts, Dr. David Langseth. He testified that the PCBs lurking in\n\nthe Charter School Parties' soil were carried into Mother Brook by\n\nsurface runoff and thus that there was a release of PCBs into\n\nMother Brook from the Charter School Parties' property during their\n\nperiod of ownership of it.\n\n The Charter School Parties do attempt to address this\n\ntestimony. They argue that Langseth testified that any PCBs on\n\ntheir soil were \"at depth\" -- i.e., located only very deep in the\n\nsoil -- and thus could not be mobilized by surface runoff or\n\nerosion.\n\n But, Langseth also testified that there were PCBs at the\n\nsurface level. Indeed, the jury heard testimony and saw evidence\n\n\n\n\n - 62 -\n\fof significant concentrations of PCBs at the surface level of the\n\nCharter School Parties' property as late as October of 2009.\n\n Thus, the jury could reasonably find that there were\n\nhigh concentrations of PCBs in the topsoil on the property during\n\nthe relevant period. Such a finding would be significant.\n\nLangseth testified that surface runoff carries soil and PCB\n\nparticles with it, and that, in consequence of the slope of the\n\nproperty, all rainfall -- and thus all surface runoff from the\n\nproperty -- would end up in Mother Brook.\n\n The Charter School Parties further argue in response\n\nthat Langseth's testimony is too \"speculative.\" They contend that\n\nhis testimony focused primarily on features of the property -- such\n\nas its slope and the extent of paved surfaces -- that long predated\n\ntheir ownership of that property. And, the Charter School Parties\n\ncontend, there were significant changes to the property, including\n\nthe addition of paved surfaces that would prevent runoff and the\n\nconstruction of a barrier to prevent erosion from the property\n\ninto Mother Brook, in the years leading up to the Charter School\n\nParties' purchase.\n\n The Charter School Parties overlook the fact, however,\n\nthat the jury received evidence that showed that not all of the\n\nproperty was paved during the time that they owned it and that the\n\nportions of the property that were not paved included portions\n\nwith the highest concentration of PCBs, which were located closest\n\n\n - 63 -\n\fto Mother Brook. Moreover, Dr. Mark Tompkins, an expert for\n\nanother defendant, testified that while the protective barrier\n\nalong the streambed would have helped prevent erosion of\n\ncontaminated soil into Mother Brook, there were \"unprotected\n\narea[s]\" on the property from which PCBs \"could be mobilized and\n\ntransported over the [barrier].\"\n\n Thus, we agree with Thomas & Betts that a reasonable\n\njury could have found, based on the evidence, that there were high\n\nlevels of PCBs in the surface-level soil at the time the Charter\n\nSchool Parties owned the property, that some portions of the\n\ncontaminated areas of that property were unpaved at that time, and\n\nthat all runoff from the property goes to Mother Brook. We thus\n\nagree with Thomas & Betts that a jury supportably could have found\n\nthat the Charter School Parties were liable under § 5(a)(1) based\n\non a release or threat of release of PCBs that occurred after they\n\nacquired the property. And, therefore, the jury was entitled to\n\nfind, under § 4, that the Charter School Parties were \"liable to\"\n\nThomas & Betts for an equitable share of its response costs.\n\n Separately, the jury also could have based that same\n\nfinding on still other evidence in the record. Specifically, the\n\njury could have found that the Charter School Parties' construction\n\nprojects on the property led to soil disruption and thus a release\n\nof PCBs into Mother Brook. In particular, the jury received\n\nevidence that showed both that there was significant construction\n\n\n - 64 -\n\fon the Charter School Parties' property near Mother Brook after\n\nthe Charter School Parties acquired the property and that the\n\nconstruction had to be halted because of the presence of PCBs. In\n\nfact, the record contains evidence of correspondence between the\n\nCharter School Parties' project management company and\n\nconstruction company, in which the construction company wrote\n\n\"[o]n September 2, 2009 we received notice from your office to\n\nhalt the work on the north side . . . of the [Charter School] site\n\ndue to the detection of PCB[s].\" Therefore, a jury could\n\nsupportably find that there were construction activities on the\n\nproperty that led to a release of PCBs during the Charter School\n\nParties' period of ownership and, thus, that the Charter School\n\nParties must reimburse Thomas & Betts for response costs. See\n\nMass. Gen. Laws ch. 21E, §§ 4, 5(a)(1).\n\n In their reply brief, the Charter School Parties make\n\none additional argument about why, under § 4, they cannot be found\n\n\"liable to\" Thomas & Betts for the response costs that they\n\nincurred. They contend that any release or threat of release of\n\nPCBs that a jury could supportably have found to have occurred on\n\nthe property during the time that the Charter School Parties owned\n\nit occurred after the MassDEP directed Thomas & Betts to remediate\n\nMother Brook (albeit before Thomas & Betts completed the\n\nremediation). And, the Charter School Parties contend, any release\n\n\n\n\n - 65 -\n\for threat of release at that point is not one that may make them\n\nliable to reimburse Thomas & Betts for its response costs.\n\n The Charter School Parties rely for this argument on\n\n§ 5(b) of Chapter 21E. That provision states, in pertinent part,\n\nthat a current owner \"who did not own or operate the site at the\n\ntime of the release . . . in question and did not cause or\n\ncontribute to such release\" may not be liable under Chapter 21E.\n\nMass. Gen. Laws ch. 21E, § 5(b). The Charter School Parties\n\ncontend that \"the release . . . in question\" is necessarily the\n\nrelease of PCBs that the MassDEP directed Thomas & Betts to\n\nremediate, as opposed to the \"release\" from or at the Charter\n\nSchool Parties' site to which the immediately preceding section\n\nrefers. See id. § 5(a). And, the Charter School Parties contend,\n\nbecause the MassDEP directed that remediation before they\n\npurchased the south bank property in 2008, they \"did not own or\n\noperate the site at the time of the release . . . in question\" and\n\nare not \"liable to\" a \"person,\" such as Thomas & Betts, seeking\n\nreimbursement under § 4 of Chapter 21E. Id. § 5(b).\n\n The Charter School Parties did not, however, make this\n\nargument either to the District Court or in its opening brief to\n\nus. And, \"[w]e have held, with a regularity bordering on the\n\nmonotonous, that issues advanced for the first time in an\n\nappellant's reply brief are deemed waived.\" Waste Mgmt. Holdings,\n\nInc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000). That rule,\n\n\n - 66 -\n\fmoreover, is especially applicable here. The Charter School\n\nParties appeared to take a contrary position in their opening brief\n\nabout the import of the phrase \"release . . . in question\" than\n\nthe one that they advance for the first time in their reply brief.\n\nIn their opening brief, they conceded that \"the jury could have\n\nfound [them] liable if there was evidence that [they] 'caused' or\n\n'contributed to' a release of PCBs to the banks or streambed of\n\nMother Brook after [they] bought the property.\" (emphasis added).\n\n B.\n\n In their appeal from the District Court's denial of their\n\nmotion for a judgment as a matter of law, the Charter School\n\nParties also contend the following. They argue that, even if the\n\nevidence sufficed to support a finding that they were \"liable\" for\n\na release or threat of release of PCBs under § 5 of Chapter 21E,\n\nthe jury's verdict that, under § 4, they were \"liable to\" Thomas\n\n& Betts for 1 percent of the response costs that it had incurred\n\nis not supportable. They contend that the evidence simply did not\n\nsuffice to support the jury's determination that there was enough\n\nof a \"causal link,\" John Beaudette, 644 N.E.2d at 220 (quoting\n\nProvidence & Worcester R.R. v. Chevron U.S.A., Inc., 622 N.E.2d\n\n262, 264 (Mass. 1993)), between a release or threat of release\n\nfrom their property after they purchased it and the response costs\n\nincurred by Thomas & Betts to justify an allocation under § 4 of\n\neven 1 percent of those response costs to them. Id. at 220-21.\n\n\n - 67 -\n\fThus, they contend, Thomas & Betts was not entitled to have them\n\nreimburse it for that share (small though it is) of those costs.\n\nId. at 220-21; see Acushnet 191 F.3d at 78. Accordingly, the\n\nCharter School Parties contend that they are entitled to judgment\n\nas a matter of law for this reason, too.\n\n In support of this aspect of the Charter School Parties'\n\nchallenge, the Charter School Parties first argue that they should\n\nnot be liable to Thomas & Betts for any share of response costs\n\nunder § 4 incurred by Thomas & Betts as a result of PCBs released\n\nfrom their property prior to the Charter School Parties possession\n\nof the property. But, this argument is beside the point, given\n\nour conclusion that the jury could supportably find that there\n\nwere releases from that property following the point in time at\n\nwhich the Charter School Parties owned the property.\n\n The Charter School Parties also argue that the release\n\ncaused by the drain pipe is too minimal to justify allocation of\n\nany response costs to the Charter School Parties, let alone\n\n1 percent of them. But, as we have already explained, a jury could\n\nsupportably find on the basis of other evidence the Charter School\n\nParties liable to Thomas & Betts under § 4 of Chapter 21E for an\n\nequitable share of its response costs because of a release or\n\nthreat of release from their property during the time that they\n\nowned or operated it. And the Charter School Parties make no\n\n\n\n\n - 68 -\n\fargument that an allocation of 1 percent of the response costs, if\n\nbased on that evidence, cannot be sustained.\n\n V.\n\n We next turn to the challenge that Thomas & Betts brings\n\nto the portion of the District Court's judgment that awarded\n\nprejudgment interest to New Albertson's on the amount that Thomas\n\n& Betts was found liable to pay it pursuant to Chapter 21E. New\n\nAlbertson's moved, over Thomas & Betts's objection, to amend the\n\ninitial judgment on the verdict to include the roughly $2.9 million\n\nthat it had already paid pursuant to the joint remediation\n\nagreement and for an award of prejudgment interest on that amount\n\npursuant to § 6B or § 6H of Chapter 231. The District Court then\n\ngranted the motion and awarded prejudgment interest to New\n\nAlbertson's on the amount that included the roughly $2.9 million.\n\n\"We review an award of prejudgment interest for abuse of\n\ndiscretion, . . . but legal issues relating to the prejudgment\n\ninterest award are reviewed de novo.\" Analysis Grp., Inc. v.\n\nCentral Florida Invs., Inc., 629 F.3d 18, 24 (1st Cir. 2010).\n\n Thomas & Betts contends that it was legal error to award\n\nprejudgment interest \"based on an arbitrary interpretation of the\n\nprovisions of the Joint Response Agreement.\" Specifically, Thomas\n\n& Betts argues that \"[w]hile the Joint Response Agreement reserves\n\neach party's claims to 'recover its costs,'\" including the\n\nreallocation of the roughly $2.9 million dollars previously paid\n\n\n - 69 -\n\fby New Albertson's to Thomas & Betts, the terms of the Joint\n\nResponse Agreement \"d[id] not provide for interest on the recovered\n\namount.\"\n\n But, the District Court did not base the award of\n\nprejudgment interest on the terms of the agreement. The District\n\nCourt entered judgment \"in favor of [New Albertson's] against\n\n[Thomas & Betts] in the amount of $3,517,855.61, computed as the\n\nsum of $593,548.73 awarded by the jury's verdict plus $2,924,306.88\n\nthat all parties have stipulated [New Albertson's] paid [Thomas &\n\nBetts] on an interim basis under those parties' November 8, 2007\n\n'Mother Brook Stream Bank Remediation / Stabilization Agreement'\n\n. . . .\" The District Court then awarded prejudgment interest on\n\nthe entire amount pursuant to either § 6B or § 6H of Chapter 231,\n\nas each makes clear that prejudgment interest \"shall be added\" in\n\ncertain kinds of cases. Mass. Gen. Laws ch. 231, §§ 6B, 6H.\n\n Notably, Thomas & Betts does not dispute that funds\n\nawarded in a judgment based on § 4 of Chapter 21E for \"response\n\ncosts\" qualify as funds for which prejudgment interest \"shall be\n\nadded\" under § 6B or § 6H of Chapter 231. Thus, we fail to see\n\nhow, in light of the text of the District Court's judgment, the\n\nroughly $2.9 million awarded to New Albertson's is not an amount\n\nthat is subject to these statutory provisions regarding the adding\n\non of prejudgment interest.\n\n\n\n\n - 70 -\n\f Consistent with this conclusion, we note that the very\n\nterms of the stipulation that the District Court references as the\n\nbasis for including the roughly $2.9 million in the judgment is\n\nthe fact that \"New Albertson[']s reimbursed Thomas & Betts\n\n$2,924,306.88 for response costs incurred in the remediation of\n\nthe banks of Middle Mother Brook.\" We note, too, that Thomas &\n\nBetts does not develop any argument that, under the joint\n\nremediation agreement, even if prejudgment interest must be added\n\non to the roughly $2.9 million referenced in the judgment pursuant\n\nto § 6B or § 6H, New Albertson's somehow contractually relinquished\n\nits right to obtain those funds.\n\n For these reasons, we reject the contention by Thomas &\n\nBetts that the District Court's award of prejudgment interest on\n\nthe response costs awarded in the judgment constitutes legal error.\n\nWe thus turn to the only remaining issues, which concern the\n\nDistrict Court's judgment awarding attorney's fees under Chapter\n\n21E.\n\n VI.\n\n Section 15 of Chapter 21E allows an award of \"costs,\n\nincluding reasonable attorney and expert witness fees, to any party\n\nwho advances the purposes of this chapter.\" Mass. Gen. Laws ch.\n\n21E, § 15.17 New Albertson's requested attorney's fees pursuant\n\n\n 17 The provision provides in full:\n\n\n\n - 71 -\n\fto this section. Over Thomas & Betts's objection, the District\n\nCourt entered a judgment in favor of New Albertson's and against\n\nThomas & Betts in the amount of $1,747,188.59 for costs, including\n\nreasonable attorney and expert witness fees.\n\n Both parties have appealed that ruling. The challenge\n\nto the award of attorney's fees raises a question of Massachusetts\n\nlaw. Peckham v. Cont’l Cas. Ins. Co., 895 F.2d 830, 841 (1st Cir.\n\n1990). We review the District Court's award determination \"only\n\nfor a mistake of law or abuse of discretion.\" Heien v. Archstone,\n\n837 F.3d 97, 100 (1st Cir. 2016) (reviewing the award of attorney's\n\nfees in a diversity case applying Massachusetts law).\n\n A.\n\n Thomas & Betts challenges the attorney's fees award to\n\nNew Albertson's on the ground that New Albertson's is not entitled\n\nto attorney's fees under § 15 of Chapter 21E because it is not a\n\nparty \"who advance[d] the purposes of this chapter.\" Mass. Gen.\n\n\n\n\n In any suit by Massachusetts residents to\n enforce the requirements of this chapter, or\n to abate a hazard related to oil or hazardous\n materials in the environment, the court may\n award costs, including reasonable attorney and\n expert witness fees, to any party other than\n the commonwealth who advances the purposes of\n this chapter.\n\nMass. Gen. Laws ch. 21E, § 15.\n\n\n\n - 72 -\n\fLaws ch. 21E, § 15.18 Thomas & Betts asserts that the SJC's\n\nprecedents establish a \"two part test\" under § 15 to determine\n\nwhether a party advanced the purposes of Chapter 21E.\n\nSpecifically, Thomas & Betts contends, \"even if the equitable\n\nallocation [to the party seeking to recover attorney's fees] is\n\nzero, [that party] must also be found not to have caused or\n\ncontributed to a release in order to recover fees.\" Thomas & Betts\n\ntherefore argues that New Albertson's did not advance the purposes\n\nof Chapter 21E because the jury found New Albertson's equitably\n\nresponsible for 25 percent of its own response costs.\n\n But, in the SJC's most recent decision on § 15, Bank,\n\nthe SJC expressly stated that \"[a]ll that [Mass Gen. Laws ch.]\n\n21E, § 15, requires is that a plaintiff has sought reimbursement\n\nunder [Mass Gen. Laws ch.] 21E, § 4, and has not contributed to\n\nthe hazardous waste release.\" 888 N.E.2d at 921. And, while\n\nThomas & Betts is correct that the plaintiffs who won an attorney's\n\nfees award in Bank were not found responsible for any equitable\n\nshare of the response costs incurred in the cleanup, Bank did not\n\n\n 18 Thomas & Betts contends in the alternative that, even if\nNew Albertson's may recover fees under Chapter 21E, the liability\nfor the fees should have been allocated severally among Thomas &\nBetts and the other two parties found \"liable to\" Thomas & Betts\nunder § 4 of Chapter 21E for portions of its response costs (albeit\nnot New Albertson's) -- that is, Alfa Laval and the Charter School\nParties. As the District Court correctly pointed out, however,\nthe problem with this argument is that neither Alfa Laval nor the\nCharter School Parties were found \"liable to\" New Albertson's in\nthe action that New Albertson's brought under § 4 of Chapter 21E.\n\n\n - 73 -\n\frely on that fact to determine which parties could recover the\n\nfees. See id. at 905.\n\n Moreover, Bank relied on Martignetti. The SJC explained\n\nthere that \"a party which has not contributed to, or caused, the\n\nrelease of hazardous materials necessitating its response actions\n\ncan 'advance[] the purposes' of [Mass. Gen. Laws ch.] 21E by\n\nbringing a § 4 claim, and therefore only such a party may be\n\nawarded attorney's fees and costs under § 15.\" Martignetti, 680\n\nN.E.2d at 1148 (alteration in original); see also id. at 1148\n\nn.42.19 Notably, Martignetti did not state that a party was\n\nprecluded from obtaining fees if it incurred response costs of its\n\nown that were not fully reimbursed.\n\n We note as well that Martignetti drew upon Sanitoy v.\n\nIlco Unican Corp., 602 N.E.2d 193, 197 (Mass. 1992), which involved\n\nfacts quite similar to those presented by this appeal. There, the\n\nSJC allowed a plaintiff to recover attorney's fees under § 15 of\n\nChapter 21E, even though the jury did not award the plaintiff 100\n\npercent of its response costs for which it sought reimbursement\n\nunder § 4. The jury had found the defendant \"wholly responsible\n\n\n\n 19\n We need not address whether a \"person\" who did not \"cause\nor contribute\" to the release within the meaning of § 5(b) of\nChapter 21E, but nevertheless owned the property at the time of\nthe release and thus is \"liable to\" both the Commonwealth and a\n\"person\" seeking reimbursement for response costs under § 4, see\nMass. Gen. Laws ch. 21E, § 5(b), would be considered to have\n\"advanced the purposes\" of Chapter 21E. Id. § 15.\n\n\n - 74 -\n\ffor the contamination on the portion of the site it had previously\n\nowned,\" and the jury awarded the plaintiff its response costs\n\nincurred in cleaning up that portion of the site. Martignetti,\n\n680 N.E.2d at 1147. But, the plaintiff had incurred additional\n\nresponse costs for cleaning up other portions of the site for which\n\nit was not reimbursed (and for which the record did not indicate\n\nthat it was causally responsible for the contamination). Id. The\n\nSJC nevertheless held that the plaintiff was entitled to \"the full\n\namount\" of its attorney's fees. Sanitoy, 602 N.E.2d at 197.20\n\n Thomas & Betts does point to a passage in Martignetti in\n\norder to support its position. In that passage, the SJC, upon\n\nvacating a Chapter 21E verdict and remanding the case, concluded\n\nthat \"if, in a new trial, the plaintiffs are found to be liable\n\nfor an equitable share of the response costs, they will not be\n\nentitled to an award of attorney's fees and costs under § 15.\"\n\n680 N.E.2d at 1147. Thomas & Betts asserts that this passage shows\n\nthe following: Any plaintiff that does not fully recover its\n\nresponse costs -- and thus that must pay for at least some of them\n\nin a Chapter 21E reimbursement action based on § 4 -- may not\n\n\n\n 20Thomas & Betts does point out that the plaintiff in Sanitoy\nwas not found liable for an equitable share of response costs under\n§ 4 of Chapter 21E with respect to the defendant's portion of the\ncontaminated site for which it was awarded response costs and\nattorney's fees. See 602 N.E.2d at 197. However, Thomas & Betts\ndoes not explain how that fact bore on the SJC's fees analysis,\nnor do we see how it did.\n\n\n - 75 -\n\frecover attorney's fees, even if the jury finds that the plaintiff\n\ndid not cause or contribute to a release of hazardous material.\n\n But, as we have already explained, under Martignetti,\n\nand in consequence of § 5(b) of Chapter 21E, a \"person\" may be\n\n\"liable to the Commonwealth\" by virtue of § 5(a)(1) but not \"liable\n\nto\" others under § 4 of Chapter 21E. That is only the case,\n\nthough, if that \"person\" neither owned the property at the time of\n\nthe release (or threat of release) nor \"caused or contributed\" to\n\nthe release (or threat of release) in question. Mass. Gen. Laws\n\nch. 21E, § 5(b). And so the phrase in Martignetti \"liable for an\n\nequitable share,\" 680 N.E.2d at 1147 (emphasis added) -- which\n\ncomes straight from § 4 itself -- is, in context, best read as\n\nfollows. The phrase is merely a reference to whether, for purposes\n\nof § 5(b), the plaintiffs there had \"caused or contributed\" to a\n\nrelease of hazardous material, such that they were \"liable\" under\n\n§ 4 of Chapter 21E to other parties to reimburse them for their\n\nresponse costs.\n\n This understanding is further bolstered by another\n\nportion of Martignetti. There, the SJC explained that only a\n\nplaintiff that \"has not contributed to, or caused, the release of\n\nhazardous materials necessitating its response actions can\n\n'advance[] the purposes' of [Mass. Gen. Laws ch.] 21E by bringing\n\na § 4 claim, and therefore only such a party may be awarded\n\n\n\n\n - 76 -\n\fattorney's fees and costs under § 15.\" 680 N.E.2d at 1148\n\n(alteration in original).\n\n Thus, we conclude that New Albertson's was entitled to\n\nattorney's fees from Thomas & Betts because New Albertson's \"has\n\nsought reimbursement under [Mass. Gen. Laws ch.] 21E, § 4, and has\n\nnot contributed to the hazardous waste release.\" Bank, 888 N.E.2d\n\nat 921. Accordingly, we move on to the challenge that New\n\nAlbertson's makes to the District Court judgment awarding it costs,\n\nincluding attorney's fees.\n\n B.\n\n The sole challenge that New Albertson's makes to the\n\nfees award concerns its amount. In order to understand the nature\n\nof its challenge, some additional background on the work done by\n\nits attorneys is helpful.\n\n The law firm that represented New Albertson's below,\n\nSugarman, Rogers, Barshak & Cohen, also represented three other\n\nparties related to the supermarket at the north bank property.\n\nThe District Court concluded that the supermarket parties were not\n\n\"so similarly situated that this case falls into the 'multiple\n\ninterrelated claims' category.\" Thus, the District Court\n\nconcluded that New Albertson's could only recover fees for the\n\nwork its counsel did for its benefit and not for the benefit of\n\nthe other supermarket parties.\n\n\n\n\n - 77 -\n\f New Albertson's identified 89 out of 5,469 billing\n\nentries that did not involve work for New Albertson's. But, the\n\nDistrict Court found that some other billing entries corresponded\n\nto work performed \"not solely for New Albertsons's benefit (and in\n\nsome cases, not for its benefit at all).\" Moreover, the District\n\nCourt found, New Albertson's had not provided a \"meaningful way of\n\ndifferentiating those entries to which New Albertson[']s has\n\nalready applied a discount from various others on which it seeks\n\nto recoup 100 percent\" -- which the District Court attributed to\n\nSugarman Rogers's \"purposeful\" \"failure to keep more detailed\n\nrecords.\" Accordingly, the District Court adopted a \"keyword\n\nsearch methodology,\" which was proposed in an affidavit by Thomas\n\n& Betts's attorney, Howard Merten, so that the District Court could\n\nidentify billing entries that corresponded to work done for\n\nmultiple parties.\n\n The District Court then discounted the fees awarded\n\nbased on these entries to reflect the fact that the work was not\n\ndone solely on behalf of New Albertson's. As for how much to\n\ndiscount those entries, the District Court found the method\n\nproposed by New Albertson's involving \"a range of discount\n\npercentages\" based on an \"individualized\" assessment of the\n\nvarious billing entries to be \"so opaque as to preclude effective\n\nreview.\" The District Court therefore adopted Thomas & Betts's\n\nproposed pro-rata discount of 75 percent.\n\n\n - 78 -\n\f The parties next submitted motions for the entry of\n\njudgment for fees based on competing keyword lists. The District\n\nCourt then issued a written decision determining which proposed\n\nkeywords would be accepted or rejected, with an explanation for\n\neach proposed keyword.\n\n New Albertson's asserts that the District Court erred in\n\nseveral ways. First, New Albertson's contends that the District\n\nCourt erred by not addressing whether the work attributable to the\n\nmultiple supermarket parties was nevertheless compensable because\n\nit would have been appropriate for that work to have been done for\n\nNew Albertson's alone. Second, New Albertson's alleges that the\n\n75 percent discount rate was arbitrary insofar as this rate does\n\nnot correspond to the relative litigation interests and risk of\n\nthe four supermarket parties. Finally, New Albertson's contends\n\nthat the keywords used to identify entries for discounting (such\n\nas \"discovery\" and \"expert\") were overbroad.21\n\n As the party seeking the award of attorney's fees, New\n\nAlbertson's \"bear[s] the burden of producing the necessary\n\nevidence\" for it. Bank, 888 N.E.2d at 920. We review for abuse\n\nof discretion. See Sanitoy, 602 N.E.2d at 197. We see none.\n\n\n\n\n 21New Albertson's also contends that the District Court erred\nby effectively requiring \"separate billing accounts for each of\nthe four Supermarket Parties.\" However, the record does not show\nthat the District Court required such.\n\n\n - 79 -\n\f We start with New Albertson's argument that the District\n\nCourt failed to address whether the billed work was appropriate to\n\nhave been done for New Albertson's alone. But, the District Court\n\ndid address -- and reject -- that argument. The District Court\n\nexplained in its September 29, 2016 order that, \"[a]s is clear\n\nfrom New Albertson[']s's decision to remove certain billing\n\nentries from its fee motion and to reduce others by some\n\npercentage, not all of the work performed by Sugarman Rogers in\n\nconnection with this case served New Albertson[']s exclusively or\n\nat all.\" Yet, the District Court went on to explain, \"the Court\n\nhas no meaningful way of differentiating those entries to which\n\nNew Albertson[']s has already applied a discount from various\n\nothers on which it seeks to recoup 100 percent.\" New Albertson's\n\ndoes not explain how such a determination represented an abuse of\n\nthe District Court's considerable discretion to determine fee\n\nawards.\n\n In addition, the District Court explained that it was\n\n\"not convinced that each [supermarket] party is so similarly\n\nsituated that this case falls into the 'multiple interrelated\n\nclaims' category.\" New Albertson's has not persuasively\n\nexplained, however, why the District Court was wrong on that score,\n\nespecially given the distinct facts and theories of liability that\n\ncorresponded to the various supermarket parties. For example, two\n\nof the supermarket parties were sued as prior owners of the\n\n\n - 80 -\n\fsupermarket property during the 1970s through 1990s, whereas New\n\nAlbertson's stood in the shoes of a current owner and operator as\n\nof the 2000s.\n\n Finally, as for the arguments that New Albertson's makes\n\nregarding the discount rate and keyword methodology, the District\n\nCourt explained that it adopted these methods because it determined\n\nthat New Albertson's had not put forth records that allowed for\n\nbetter alternatives. And, we note, the District Court undertook\n\nan exhaustive evaluation of each keyword proposed by both parties\n\nin its second written decision on attorney's fees on March 10,\n\n2017. Accordingly, we conclude that New Albertson's has not shown\n\nthat the District Court's fees award was an abuse of discretion.22\n\n VII.\n\n The contamination of Mother Brook precipitated an\n\nextensive cleanup operation. So, too, did the litigation that\n\nfollowed. We affirm the District Court's judgment in Nos. 16-\n\n1133, 16-1134, 16-1189, 17-1360, and 17-1361. And we dismiss No.\n\n16-1204 as moot.\n\n\n\n\n 22\n New Albertson's also argues that it is entitled under § 15\nto fees and costs related to this appeal. We deny its request\nwithout prejudice to its filing an attorney's fee application in\naccordance with our normal procedure set forth in Local Rule\n39.1(b) of the First Circuit Court of Appeals.\n\n\n - 81 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365356/", "author_raw": "BARRON, Circuit Judge"}]} | HOWARD | SELYA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588103/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: THOMAS & BETTS CORPORATION, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee, v. NEW ALBERTSON'S, INC., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellee, Alfa Laval Inc.; Boston Renaissance Charter Public School; Boston Renaissance Charter School, Inc.; Siemens Industry, Inc.; Allis-Chalmers Energy, Inc.; Dampney Company, Inc., Third-Party Defendants, Appellees/Cross-Appellants/Cross-Appellees, Jeanette Yukon, as General Partner of Yukon/Hyde Park Avenue Limited Partnership; Jewel Food Stores, Inc.; Star Markets Company; Hyde Park Manager, Inc., as Administrative Trustee for W/S Cardinal Hyde Park-MA Trust; Dampney Company, Inc., Third-Party Defendants, Appellees/Cross-Appellees. Thomas & Betts Corporation, Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee, v. New Albertson's, Inc., Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant, Alfa Laval Inc.; Boston Renaissance Charter Public School; Boston Renaissance Charter School, Inc.; Siemens Industry Inc.; Allis-Chalmers Energy, Inc.; Dampney Company, Inc., Third-Party Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNos. 16-1133, 16-1134, 16-1189, 16-1204\n\n THOMAS & BETTS CORPORATION,\n\n Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,\n\n v.\n\n NEW ALBERTSON'S, INC.,\n\n Defendant/Third-Party Plaintiff, Appellee/Cross-Appellee,\n\n ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL;\n BOSTON RENAISSANCE CHARTER SCHOOL, INC.;\n SIEMENS INDUSTRY, INC.; ALLIS-CHALMERS ENERGY, INC.;\n DAMPNEY COMPANY, INC.,\n\n Third-Party Defendants, Appellees/Cross-Appellants/Cross-\n Appellees,\n\n JEANETTE YUKON, as General Partner of Yukon/Hyde Park Avenue\n Limited Partnership; JEWEL FOOD STORES, INC.; STAR MARKETS\n COMPANY; HYDE PARK MANAGER, INC., as Administrative Trustee for\n W/S Cardinal Hyde Park-MA Trust; DAMPNEY COMPANY, INC.,\n\n Third-Party Defendants, Appellees/Cross-Appellees.\n\n\nNos. 17-1360, 17-1361\n\n THOMAS & BETTS CORPORATION,\n\n Plaintiff/Third-Party Plaintiff, Appellant/Cross-Appellee,\n\n v.\n\n NEW ALBERTSON'S, INC.,\n\n Defendant/Third-Party Plaintiff, Appellee/Cross-Appellant,\n\f ALFA LAVAL INC.; BOSTON RENAISSANCE CHARTER PUBLIC SCHOOL;\n BOSTON RENAISSANCE CHARTER SCHOOL, INC.;\n SIEMENS INDUSTRY INC.; ALLIS-CHALMERS ENERGY, INC.;\n DAMPNEY COMPANY, INC.,\n\n Third-Party Defendants, Appellees.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. William G. Young, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Selya and Barron, Circuit Judges.\n\n\n Howard Merten, with whom Paul M. Kessimian, Robert K. Taylor,\nand Partridge, Snow, & Hahn LLP were on brief for appellant/ cross-\nappellee.\n C. Dylan Sanders, with whom Lisa C. Goodheart and Sugarman,\nRogers, Barshak, and Cohen, P.C. were on brief for New Albertson's,\nInc.; Jewel Food Stores, Inc.; Star Markets Company, Inc.; and\nHyde Park Manager, Inc.\n Jonathon C. Burwood, with whom Hinshaw and Culbertson LLP\nwere on brief for Alfa Laval, Inc.\n John T. Harding, with whom Lewis, Brisbois, Bisgaard, & Smith\nLLP were on brief for appellee/cross-appellant Boston Renaissance\nCharter School, Inc. and Boston Renaissance Charter Public School.\n Eric L. Klein, with whom Marc J. Goldstein, Brook Detterman,\nand Beveridge & Diamond, P.C. were on brief for Siemens Industry,\nInc. and Allis-Chalmers Energy, Inc.\n A. Neil Hartzell, with whom LeClair Ryan, A Professional\nCorporation were on brief for Jeanette Yukon.\n Carolyn M. Miller, with whom Matthew C. Welnicki and Melick\n& Porter, P.C. were on brief for Dampney Company, Inc.\n\n\n February 6, 2019\n\f BARRON, Circuit Judge. In 2007, at the direction of the\n\nMassachusetts Department of the Environment (\"MassDEP\"), an\n\nextensive cleanup of Mother Brook, a canal in Boston,\n\nMassachusetts, began following its contamination by\n\npolychlorinated biphenyls (\"PCBs\"). The cleanup ultimately\n\nresulted in a 2010 lawsuit in which two parties -- Thomas & Betts\n\nand New Albertson's -- brought Massachusetts law claims in the\n\nUnited States District Court for the District of Massachusetts\n\nagainst each other and various third parties. The claims, which\n\nwere primarily brought under § 4 of Chapter 21E, see Mass. Gen.\n\nLaws ch. 21E, § 4, sought reimbursement for the money that Thomas\n\n& Betts and New Albertson's each had spent on the cleanup.\n\n After a lengthy trial, a jury rendered a special verdict.\n\nThe jury found, among other things, that Thomas & Betts was \"liable\n\nto\" New Albertson's under § 4 of Chapter 21E for a portion of what\n\nare known as the response costs that New Albertson's had incurred\n\nin connection with the cleanup of the canal. The jury also found\n\nthat other parties (but not New Albertson's) were \"liable to\"\n\nThomas & Betts under § 4 of Chapter 21E for various portions of\n\nthe response costs that it had incurred in the cleanup. The jury\n\nthen allocated the percentage of the response costs that each of\n\nthe various parties were responsible for reimbursing to,\n\nrespectively, New Albertson's and Thomas & Betts.\n\n\n\n\n - 3 -\n\f The District Court entered judgment based on the jury's\n\nspecial verdict and awarded prejudgment interest, under § 6B or\n\n§ 6H of Chapter 231, without specifying which applied, to New\n\nAlbertson's and Thomas & Betts on the funds that had been awarded\n\nto each of them on their § 4 claims. The District Court then\n\nentered a separate judgment in which it awarded New Albertson's\n\nattorney's fees under § 15 of Chapter 21E. The consolidated\n\nappeals that are now before us concern both judgments. We affirm\n\neach of them.1\n\n I.\n\n To understand the many issues that we need to address,\n\nwe first provide some background on Chapter 21E and the cleanup of\n\nMother Brook. We then review the travel of the litigation.\n\n A.\n\n Chapter 21E is the Massachusetts version of the\n\nComprehensive Environmental Response, Compensation, and Liability\n\nAct (\"CERCLA\"), 42 U.S.C. §§ 9601-28. See John S. Boyd Co. v.\n\nBoston Gas Co., 992 F.2d 401, 404 n.3 (1st Cir. 1993). The\n\nMassachusetts Supreme Judicial Court (\"SJC\") has explained that\n\nChapter 21E, like its federal analogue, seeks \"to compel the prompt\n\n\n\n 1 One of the appeals, No. 16-1204, has been brought by a\nparty -- Allis-Chalmers Energy, Inc. -- that was not found liable\nby the jury. The appeal concerns the District Court's denial of\nthat party's motion for summary judgment. In light of our\ndisposition of the other appeals, we dismiss this appeal as moot.\n\n\n - 4 -\n\fand efficient cleanup of hazardous material and to ensure that\n\ncosts and damages are borne by the appropriate responsible\n\nparties.\" Bank v. Thermo Elemental Inc., 888 N.E.2d 897, 911\n\n(Mass. 2008) (quoting Taygeta Corp. v. Varian Assocs., 763 N.E.2d\n\n1053, 1059 (Mass. 2002)). To that end, whenever the MassDEP \"has\n\nreason to believe\" that \"hazardous material has been released\" or\n\nthat there is a \"threat\" of such a release, it \"is authorized to\n\ntake or arrange for such response actions as it reasonably deems\n\nnecessary.\" Mass. Gen. Laws ch. 21E, § 4.\n\n Section 4 further provides that, when the MassDEP has\n\nreason to believe that there has been such a release or the threat\n\nof one, it must notify the \"owner or operator of the site . . . of\n\nits intent to take such action,\" except under certain circumstances\n\nnot relevant here.2 Id. Section 4 then provides that \"[a]ny\n\nperson who undertakes a necessary and appropriate response action\n\nregarding the release or threat of release of . . . hazardous\n\nmaterials shall be entitled to reimbursement from any other person\n\nliable for such release or threat of release for the reasonable\n\ncosts of such response action.\" Id. And, § 4 provides as well,\n\n\n\n 2\n Chapter 21E defines a \"site\" as \"any building, structure,\ninstallation, equipment, pipe or pipeline, . . . well, pit, pond,\nlagoon, impoundment, ditch, landfill, storage container, motor\nvehicle, rolling stock, or aircraft, or any other place or area\nwhere oil or hazardous material has been deposited, stored,\ndisposed of or placed, or otherwise come to be located.\" Mass.\nGen. Laws ch. 21E, § 2.\n\n\n - 5 -\n\f\"[i]f two or more persons are liable pursuant to section five [of\n\nChapter 21E] for such release or threat of release, each shall be\n\nliable to the others for their equitable share of the costs of\n\nsuch response action.\" Id.\n\n Section 5(a) in turn spells out the \"person[s]\" who are\n\n\"liable\" for such release or threat of release and to whom they\n\nare \"liable.\"3 The \"person[s]\" who are \"liable\" pursuant to § 5\n\nfor a release or threat of such release include, in relevant part:\n\n\"the owner or operator of . . . a site from or at which there is\n\nor has been a release or threat of release of oil or hazardous\n\nmaterial,\" id. § 5(a)(1); \"any person who at the time of storage\n\nor disposal of any hazardous material owned or operated any site\n\nat or upon which such hazardous material was stored or disposed of\n\nand from which there is or has been a release or threat of release\n\nof hazardous material,\" id. § 5(a)(2); and \"any person who\n\notherwise caused or is legally responsible for a release or threat\n\nof release of oil or hazardous material from a . . . site,\" id.\n\n§ 5(a)(5). A \"person\" described in § 5(a) is, under § 5(a)(i),\n\n\"liable . . . to the [C]ommonwealth [of Massachusetts] for all\n\ncosts of assessment, containment and removal incurred . . .\n\n\n\n 3Chapter 21E defines a \"release\" as \"any spilling, leaking,\npumping, pouring, emitting, emptying, discharging, injecting,\nescaping, leaching, dumping or disposing into the environment,\"\nsave for several exceptions not relevant here. Mass. Gen. Laws\nch. 21E, § 2.\n\n\n - 6 -\n\frelative to such release or threat of release;\" and, under\n\n§ 5(a)(iv), \"liable . . . to any person for any liability that\n\nanother person is relieved of pursuant to [Mass. Gen. Laws ch.\n\n21E, § 4.]\"\n\n These portions of the statute are relatively\n\nstraightforward. There is, however, one additional point about\n\nthe statute that is critical to bear in mind in considering the\n\nanalysis that follows, though it is quite technical. The point is\n\nthis.\n\n Section 5(b) recognizes that a \"person who is liable\n\nsolely pursuant to [§ 5(a)(1)]\" -- a so-called \"current\n\nowner\" -- is \"liable to\" other current owners and is \"liable to\"\n\nthe Commonwealth. Id. § 5(b). But, § 5(b) provides that such a\n\ncurrent owner in some circumstances may not be \"liable to\" any\n\nother \"person[s]\" who are described in § 5(a). Specifically, §\n\n5(b) provides that a current owner is not \"liable to\" any \"person\n\nwho is liable pursuant to\" §§ 5(a)(2)-(5), if the current owner\n\ncan show that (1) it \"did not own or operate the site at the time\n\nof the release or threat of release in question\" and (2) it \"did\n\nnot cause or contribute to such release or threat of release.\"\n\nId.\n\n The upshot of this limitation in § 5(b) -- by virtue of\n\nhow §§ 5(a)(1) and 5(b) interact both with each other and with\n\n§ 4 -- is the following. A \"person\" may be \"liable\" within the\n\n\n - 7 -\n\fmeaning of § 5 -- for example, by virtue of being \"liable to the\n\n[C]ommonwealth\" under § 5(a)(1), in consequence of owning a site\n\nfrom which there \"has been a release\" -- and yet not be \"liable\n\nto\" a \"person\" who seeks reimbursement under § 4 for the costs\n\nthat it incurred in connection with a response action that it\n\nundertook in consequence of that release. Id. And, as we will\n\nsee, this limitation on liability in § 4, arising from § 5(b),\n\nbears directly on a number of the issues that we must address in\n\nthese appeals.\n\n There is one final statutory provision that warrants\n\nmuch briefer mention. Section 4A of Chapter 21E creates a cause\n\nof action premised on the liability that § 4 imposes. It provides\n\nthat parties may seek reimbursement from other parties, based on\n\ntheir liability under § 4, for the costs that they have incurred\n\nin undertaking response actions. Specifically, § 4A provides that\n\n\"any person who has given notice pursuant to this section may\n\ncommence a civil action in the superior court department of the\n\ntrial court seeking from the notice recipient contribution,\n\nreimbursement or an equitable share of the costs of such response\n\naction or of such actual or potential liability.\" Id. § 4A.4\n\n\n 4\n The District Court ruled that Thomas & Betts was excused\nfrom complying with the notice requirement in § 4A because the\nChapter 21E claims under § 4 that Thomas & Betts brought were\neither cross-claims or third-party claims. No party appeals that\nruling.\n\n\n\n - 8 -\n\f There are also certain Massachusetts regulations that\n\nare useful to understand. That is because the MassDEP implements\n\nChapter 21E through the Massachusetts Contingency Plan (the\n\n\"Plan\"), 310 Mass. Code Regs. 40. See Mass. Gen. Laws ch. 21E,\n\n§ 3(b).\n\n The Plan defines a \"response action\" as the\n\n\"assessment[], containment[], and/or removal[]\" of hazardous\n\nmaterials. 310 Mass. Code Regs. 40.0006(2)(a). The Plan further\n\nprovides that, in carrying out the authority to arrange for\n\nresponse actions, the MassDEP may issue a \"Notice of\n\nResponsibility\" to a \"potentially responsible party\" or a\n\n\"responsible party.\" Id. at 40.0160(1); see also Mass. Gen. Laws\n\nch. 21E, § 9 (describing MassDEP's authority to order a responsible\n\nparty to undertake a response action). The Plan defines a\n\n\"potentially responsible party\" as \"a person who is potentially\n\nliable pursuant to [Chapter 21E].\" 310 Mass. Code Regs.\n\n40.0006(12). The Plan defines a \"responsible party,\" by contrast,\n\nas \"a person who is liable under [Chapter 21E].\" Id.\n\n\n\n We note that, while § 4 imposes liability on certain persons\nto reimburse the response costs that a \"potentially responsible\nparty\" incurs, § 5(a)(iii) separately makes a \"person\" described\nin §§ 5(a)(1)-(5) \"liable to . . . any person for damage to . . .\nreal or personal property incurred or suffered as a result of such\nrelease or threat of release.\" Mass. Gen. Laws ch. 21E, § 5(a);\nsee also Martignetti v. Haigh-Farr Inc., 680 N.E.2d 1131, 1135-36\n(Mass. 1997). No party to this litigation advances such a § 5\nclaim, however. The claims at issue -- insofar as they are brought\npursuant to Chapter 21E -- are all brought under § 4.\n\n\n - 9 -\n\f The MassDEP has the \"sole discretion\" to determine \"whom\n\nto notify of their potential liability under [Chapter 21E].\" 310\n\nMass. Code Regs. 40.0160(1)(a). Once notified by the MassDEP,\n\n\"potentially responsible parties\" may undertake a response action,\n\nwhile \"responsible parties\" must do so. Id. at 40.0403(1).\n\n B.\n\n It is against this dense statutory and regulatory\n\nbackground that the dispute between the parties to these appeals\n\ncomes to us. The dispute itself has its origins in events that\n\ntook place nearly two decades ago.\n\n Thomas & Betts is one of the two principal parties to\n\nthese appeals. In 1999, it acquired a company that owned a\n\nproperty upstream from Mother Brook. Thomas & Betts, along with\n\nthe other parties to these appeals, has stipulated that the company\n\nthat it had acquired had used and stored PCBs on its property while\n\nit conducted industrial operations there.\n\n New Albertson's is the other principal party to these\n\nappeals. It has stipulated, along with the other parties, that it\n\n\"stands in the shoes\" of a number of parties that had leased a\n\nproperty downstream from Thomas & Betts's property, that this\n\ndownstream property had long been home to a supermarket, and that\n\nNew Albertson's had indemnified the owner of the supermarket\n\nproperty against certain environmental costs and responsibilities.\n\n\n\n\n - 10 -\n\f In 2000, sediment samples from the upstream property\n\nthat Thomas & Betts owned tested positive for PCBs. The next year,\n\nThomas & Betts developed and began carrying out a remediation plan\n\nfor that property as well as for Mother Brook in its entirety.\n\n On October 17, 2007, the MassDEP sent an email to Thomas\n\n& Betts, as the owner of the upstream property, and to the owner\n\nat that time of the downstream supermarket property. The email\n\nreported that the MassDEP had found PCB contamination along both\n\nbanks of Mother Brook in the area adjacent to the supermarket\n\nproperty and potentially extending downstream to the canal's\n\nterminus at the Neponset River. The email also indicated that,\n\npursuant to § 4 of Chapter 21E, the MassDEP would be issuing a\n\nNotice of Responsibility both to Thomas & Betts and to the owner\n\nof the supermarket property in connection with the contamination\n\nof Mother Brook.\n\n The next month, the MassDEP issued the Notice of\n\nResponsibility. The Notice of Responsibility stated that the\n\nMassDEP had reason to believe that Thomas & Betts and the owner of\n\nthe supermarket property were \"Potentially Responsible Parties.\"\n\nThe Notice of Responsibility also stated that \"responsible\n\nparties\" must take necessary response actions or risk \"liab[ility]\n\nfor up to three (3) times all response costs incurred by [the]\n\nMassDEP.\" See Mass. Gen. Laws ch. 21E, §§ 5(e), 9; 310 Mass. Code\n\nRegs. 40.1220(5). Finally, the Notice of Responsibility stated\n\n\n - 11 -\n\fthat \"[t]he subject site shall not be deemed to have all the\n\nnecessary and required response actions taken unless and until all\n\nsubstantial hazards presented by the site have been eliminated and\n\na level of No Significant Risk exists.\"5\n\n In response to the email from the MassDEP, but before\n\nthe MassDEP had sent the Notice of Responsibility, Thomas & Betts\n\nand New Albertson's entered into a joint remediation agreement.\n\nSpecifically, the two parties agreed \"to cooperate with each other\n\nin good faith and with due haste to implement the [MassDEP's]\n\nexpectations set forth in . . . the October 17 Email.\" Pursuant\n\nto that same agreement, Thomas & Betts and New Albertson's also\n\nagreed to an \"interim\" allocation of the costs that they would\n\njointly incur in cleaning up Mother Brook. Thomas & Betts and New\n\nAlbertson's did so on the understanding that this interim\n\nallocation was \"not intended to reflect the parties' ultimate cost\n\nresponsibility.\"\n\n At the time that Thomas & Betts entered into the joint\n\nremediation agreement with New Albertson's, Thomas & Betts already\n\nhad the necessary permits and authorizations to remediate Mother\n\nBrook. Thus, Thomas & Betts and New Albertson's agreed to\n\n\n 5 A Massachusetts regulation promulgated by the MassDEP\ndefines \"No Significant Risk\" as a \"level of control of each\nidentified substance of concern at a site . . . such that no such\nsubstance of concern shall present a significant risk of harm to\nhealth, safety, public welfare or the environment during any\nforeseeable period of time.\" 310 Mass. Code Regs. 40.0006(12).\n\n\n - 12 -\n\fundertake their joint remediation effort pursuant to those permits\n\nand authorizations.\n\n To clean up Mother Brook, the canal had to be drained\n\nand the contaminated sediment completely removed. The portion of\n\nMother Brook adjacent to the supermarket property was bounded by\n\ntwo parallel bridges that spanned the canal. To drain and excavate\n\nthis portion of the canal, access to either the north bank, where\n\nthe supermarket property was located, or the south bank, was\n\nneeded.\n\n The cleanup of Mother Brook was completed by December of\n\n2009. In the end, Thomas & Betts incurred $12,703,322.52 in\n\nresponse costs. Pursuant to the joint remediation agreement, New\n\nAlbertson's paid Thomas & Betts $2,924,306.88. New Albertson's\n\nitself incurred an additional $791,398.31 in response costs in\n\nconnection with the cleanup.\n\n C.\n\n In November of 2010, Thomas & Betts filed a complaint,\n\ninvoking federal diversity jurisdiction, against New Albertson's\n\nin the United States District Court for the District of\n\nMassachusetts. See 28 U.S.C. § 1332(a). Thomas & Betts alleged\n\nthat New Albertson's had ceased paying it pursuant to the agreement\n\nto allocate the costs of the cleanup set forth in the joint\n\nremediation agreement. On that basis, Thomas & Betts asserted\n\nclaims against New Albertson's under Massachusetts law for breach\n\n\n - 13 -\n\fof contract, breach of the covenant of good faith, and unfair and\n\ndeceptive business practices.\n\n In January of 2011, New Albertson's filed counterclaims\n\nagainst Thomas & Betts under Massachusetts law for breach of\n\ncontract, breach of the covenant of good faith, and unfair and\n\ndeceptive business practices. New Albertson's also asserted a\n\ncounterclaim against Thomas & Betts for reimbursement based on § 4\n\nof Chapter 21E for all the response costs that it had incurred in\n\nconnection with the cleanup of Mother Brook and for costs,\n\nincluding attorney's fees, under § 15 of Chapter 21E.\n\n Later that year, Thomas & Betts responded by filing its\n\nown counterclaims based on § 4 of Chapter 21E against New\n\nAlbertson's for reimbursement for the response costs that it had\n\nincurred in connection with the cleanup and for costs, including\n\nattorney's fees, under § 15 of Chapter 21E. Thomas & Betts also\n\nadded a new breach of contract counterclaim under Massachusetts\n\nlaw against New Albertson's. This counterclaim alleged that New\n\nAlbertson's had breached the joint remediation agreement's duty\n\n\"to cooperate in good faith\" by, among other things, \"[r]efusing\n\nto allow timely access to New Albertson's' property, which access\n\nwas necessary to complete the bank remediation work.\"\n\n Eventually, Thomas & Betts and New Albertson's each also\n\nfiled complaints pursuant to § 4A of Chapter 21E against other\n\nparties. Those third-party complaints sought reimbursement from\n\n\n - 14 -\n\fthe third parties for the response costs that Thomas & Betts and\n\nNew Albertson's, respectively, each had incurred in remediating\n\nthe contamination of Mother Brook.\n\n One of these third-party defendants is Alfa Laval Inc.,\n\nwhich is also a party on appeal. Alfa Laval manufactured\n\ncentrifuges on the south bank of Mother Brook, across from where\n\nthe supermarket property is located, from the 1960s until the late\n\n1970s. Alfa Laval purchased the site and assets of the centrifuge\n\nbusiness from another manufacturer that, the parties to these\n\nappeals have stipulated, used and stored PCBs at this south bank\n\nproperty.\n\n Another set of third-party defendants who are parties on\n\nappeal includes the Boston Renaissance Foundation, Inc.\n\n(\"Foundation\"), which purchased the south bank property in 2008,\n\nand the Boston Renaissance Charter Public School, which leased\n\nthat same property from the Foundation. We will refer to these\n\nparties collectively as \"the Charter School Parties.\" The Charter\n\nSchool Parties were joined as defendants in this litigation by\n\nThomas & Betts in late 2011. Thomas & Betts claimed that the\n\nCharter School Parties were \"liable to\" it, under § 4 of Chapter\n\n21E, for the reimbursement of a portion of the response costs that\n\nit had incurred.\n\n Finally, we need to mention one other pair of parties to\n\nthese appeals. These parties are Dampney Company, Inc. (\"Dampney\")\n\n\n - 15 -\n\fand Jeanette Yukon, as general partner of Yukon/Hyde Park Avenue\n\nLimited Partnership (\"Yukon\"). Dampney was a paint manufacturer\n\nthat owned a site just north of Thomas & Betts's property between\n\n1930 and 1970.\n\n Thomas & Betts filed a third-party complaint against\n\nDampney under § 4A of Chapter 21E in December of 2011. The\n\nYukon/Hyde Park Avenue Limited Partnership at one point owned the\n\nsouth bank property where the Boston Renaissance Charter Public\n\nSchool is now located. Yukon became a party to the suit due to\n\nthe third-party complaint that Alfa Laval filed pursuant to § 4A\n\nof Chapter 21E in 2012. Neither Dampney nor Yukon claim that the\n\nDistrict Court erred, and we need only mention them briefly at\n\npoints in considering the challenges that Thomas & Betts brings on\n\nappeal.\n\n The trial on these various claims took place in late\n\n2015 and lasted twenty-one days. Only the claims based on § 4 of\n\nChapter 21E for reimbursement by Thomas & Betts and New\n\nAlbertson's -- against each other and the other parties that we\n\nhave mentioned -- went to the jury.\n\n On December 22, 2015, the jury returned a special\n\nverdict. The first part of the special verdict addressed \"Question\n\nOne\" on the special verdict form, which concerned the claims that\n\nThomas & Betts had brought based on § 4 of Chapter 21E.\n\nSpecifically, the jury found that Thomas & Betts had incurred\n\n\n - 16 -\n\f$12,703,322.52 in reasonable and necessary response costs. The\n\njury also found that Alfa Laval and the Charter School Parties\n\nwere \"liable to\" Thomas & Betts for a portion of the response costs\n\nthat had been incurred by Thomas & Betts. The jury then allocated\n\nresponsibility for 14 percent of those response costs to Alfa Laval\n\nand 1 percent of them to the Charter School Parties. The jury\n\nfound that no other party to the litigation, including New\n\nAlbertson's, was \"liable to\" Thomas & Betts for any portion of\n\nThomas & Betts's response costs. The jury assigned Thomas & Betts\n\nthe other 85 percent of the response costs.\n\n The second part of the special verdict addressed\n\n\"Question Two,\" which concerned the claims that New Albertson's\n\nhad brought based on § 4 of Chapter 21E. The jury found that New\n\nAlbertson's had incurred $791,398.31 in reasonable and necessary\n\nresponse costs. The jury also found that Thomas & Betts was\n\n\"liable to\" New Albertson's for 75 percent of those response costs\n\nand that no other party to the litigation was \"liable to\" New\n\nAlbertson's for them. The jury assigned New Albertson's the other\n\n25 percent of the response costs. In addition, the jury found\n\nthat New Albertson's did not \"cause[] or contribute[] to the\n\nrelease of PCBs to the banks or streambed of Middle or Lower Mother\n\nBrook[.]\"\n\n The District Court entered judgment based on the jury's\n\nspecial verdict on December 31, 2015. The various parties then\n\n\n - 17 -\n\ffiled a number of post-trial motions, including motions to alter\n\nthe judgment. The District Court denied most of these motions on\n\nMarch 29, 2016, although the District Court did grant motions by\n\nThomas & Betts and New Albertson's to alter the judgment and to\n\ninclude prejudgment interest on the funds that each had been\n\nawarded pursuant to their respective claims under § 4 of Chapter\n\n21E. The District Court did so pursuant to either § 6B or § 6H of\n\nChapter 231, without specifying which provision applied. On May\n\n2, 2016, the District Court issued a written decision explaining\n\nboth its prejudgment interest rulings and its ruling rejecting\n\nThomas & Betts's post-trial motion for a new trial. A number of\n\nparties appealed from the District Court's amended judgment.6\n\n The District Court then issued two written\n\ndecisions -- the first on September 29, 2016 and the second on\n\nMarch 10, 2017 -- on still-pending motions concerning costs,\n\nincluding attorney's and expert's fees. The District Court finally\n\nentered judgment on the motions for attorney's fees on April 4,\n\n\n 6\n The judgment initially entered pursuant to the verdict did\nnot address the roughly $2.9 million that New Albertson's paid\nThomas & Betts pursuant to the joint remediation agreement. Both\nNew Albertson's and Thomas & Betts moved to amend the judgment.\nThe District Court granted the motions.\n The District Court's judgment on the verdict, as amended, was\na final and appealable decision prior to its later order on\nattorney's fees, which is separately appealable. See Budinich v.\nBecton Dickinson & Co., 486 U.S. 196, 200-03 (1988). Thomas &\nBetts appealed in No. 16-1189. Alfa Laval appealed in No. 16-\n1133. The Charter School Parties appealed in No. 16-1134.\n\n\n - 18 -\n\f2017. In the portion of the judgment on those costs that is at\n\nissue on appeal, the District Court ordered Thomas & Betts to pay\n\n$1,747,188.59 in costs, including attorney's and expert's fees, to\n\nNew Albertson's under § 15 of Chapter 21E.\n\n Thomas & Betts then appealed this judgment in No. 17-\n\n1360, as did New Albertson's in No. 17-1361. These appeals, along\n\nwith the others mentioned above, were all then consolidated.\n\n II.\n\n We begin with the appeal that Thomas & Betts brings from\n\nthe District Court's denial of its motion for a new trial pursuant\n\nto Federal Rule of Civil Procedure 59. Thomas & Betts contends\n\nthat the District Court erred in denying its Rule 59 motion based\n\non what it contends were a number of alleged legal errors at trial.\n\nThese alleged legal errors are: that the District Court reversibly\n\nerred by refusing to instruct the jury on one of its breach of\n\ncontract claims; that the District Court reversibly erred by giving\n\nfour erroneous instructions concerning the potential liability,\n\nunder § 4 of Chapter 21E, of other parties to Thomas & Betts for\n\nat least some of its response costs; and that the jury rendered\n\ninconsistent verdicts on certain of Thomas & Betts's claims under\n\n§ 4 of Chapter 21E. We address each asserted error in turn.\n\n A.\n\n We start with the contention by Thomas & Betts that the\n\nDistrict Court committed reversible error by failing to instruct\n\n\n - 19 -\n\fthe jury on its breach of contract claim against New Albertson's\n\nfor failing to provide access to its property despite its duty\n\nunder the joint remediation agreement to \"cooperate in good faith.\"\n\nWe review the District Court's denial of a motion for a new trial\n\nfor abuse of discretion. Kennedy v. Town of Billerica, 617 F.3d\n\n520, 527 (1st Cir. 2010). Where, however, a motion for a new trial\n\nrelies on \"preserved claims of instructional error, we afford de\n\nnovo review to 'questions as to whether the jury instructions\n\ncapture the essence of the applicable law.'\" Ira Green, Inc. v.\n\nMilitary Sales & Service Co., 775 F.3d 12, 18 (1st Cir. 2014)\n\n(quoting DeCaro v. Hasbro, Inc., 580 F.3d 55, 61 (1st Cir. 2009)).\n\n Here, of course, the claimed instructional error\n\nconsists of a failure by the District Court to give an instruction\n\non a claim at all rather than of an instruction that was given but\n\nthat was allegedly wrong. \"The district court must give a jury\n\ninstruction on a material issue if the evidence presented at trial\n\ncould plausibly support a finding for either side.\" Id. \"The\n\nstandard for determining whether a factual issue is sufficiently\n\ncontested to require an instruction is identical to the standard\n\nfor determining whether a factual controversy prevents the entry\n\nof judgment as a matter of law.\" Wilson v. Mar. Overseas Corp.,\n\n150 F.3d 1, 10 (1st Cir. 1998). Thus, to show error here, Thomas\n\n& Betts must demonstrate that there is more than \"a mere scintilla\n\nof evidence\" in the record to support the claim on which the jury\n\n\n - 20 -\n\fwas not instructed. Fashion House, Inc. v. K Mart Corp., 892 F.2d\n\n1076, 1088 (1st Cir. 1989). Our review of this matter of law is\n\nde novo. See Wilson, 150 F.3d at 10.\n\n Thomas & Betts contends -- as it did below in moving for\n\na new trial -- that the record shows that a jury supportably could\n\nhave found that, in 2007, and then, again, from 2008 into 2009,\n\nNew Albertson's breached the duty at issue. Thomas & Betts further\n\ncontends that there was enough evidence in the record to permit\n\nthe jury to have found that the alleged breach -- no matter when\n\nit occurred -- resulted in damages. Accordingly, Thomas & Betts\n\ncontends that the District Court was obliged to instruct the jury\n\non this claim of contractual breach.\n\n In ruling otherwise in denying Thomas & Betts's motion\n\nfor new trial, the District Court concluded, among other things,\n\nthat the record did not contain sufficient evidence for a jury\n\nreasonably to find damages resulting from the alleged breach.7\n\n\n 7 We note that the District Court, in rejecting the motion by\nThomas & Betts for a new trial concerning this instruction,\nexplained that \"the [joint remediation] [a]greement does nothing\nmore than codify the signatories' duties under Chapter 21E and\nprovide for certain interim payments from New Albertson's to Thomas\n& Betts.\" Thomas & Betts does not argue that, insofar as this\nconclusion regarding codification formed the basis for the\nDistrict Court’s rejection of its motion for new trial as to this\ninstruction, this conclusion was error. And, even assuming error\non this score, it was harmless, as, for the reasons that we\nexplain, Thomas & Betts cannot show that it put forth enough\nevidence to permit a jury to find that New Albertson’s breached\nthe duty \"to cooperate in good faith\" that the joint remediation\nagreement establishes.\n\n\n - 21 -\n\fBut, as \"[w]e are at liberty to affirm a district court's judgment\n\non any ground made manifest by the record,\" United States v.\n\nGeorge, 886 F.3d 31, 39 (1st Cir. 2018), we may affirm the District\n\nCourt based on our resolution of the antecedent question of whether\n\nthe evidence sufficed to support a finding that New Albertson's\n\nhad committed the alleged breach at all. And, because we conclude\n\nthat the evidence did not suffice in that regard, we reject the\n\nchallenge that Thomas & Betts brings concerning the District\n\nCourt's failure to give this instruction.\n\n 1.\n\n To make the case that the District Court erred by not\n\ninstructing the jury on the breach of contract claim, Thomas &\n\nBetts first argues that a jury supportably could have found that\n\nNew Albertson's breached the contractual duty at issue by rejecting\n\na proposal to conduct simultaneous remediation in 2007. Thomas &\n\nBetts points to the testimony of John Mitchell, the project manager\n\nfor Shaw Environmental & Infrastructure, Inc., which was the\n\noutside consultant retained by Thomas & Betts for the remediation\n\nproject.\n\n Mitchell's testimony concerned a 2007 proposal -- never\n\nimplemented -- that New Albertson's remediate both banks of Mother\n\nBrook and its streambed simultaneously. Citing only to this\n\ntestimony, Thomas & Betts contends on appeal that \"the jury heard\n\nthat [New Albertson's] insisted that the North Bank (its side) be\n\n\n - 22 -\n\fdone first.\" Thomas & Betts then contends, on that basis, that a\n\njury supportably could find that New Albertson's unreasonably\n\nstood in the way of this proposal being put into operation.\n\nAccordingly, Thomas & Betts contends, for this reason alone the\n\nrecord adequately supports a finding that New Albertson's breached\n\nits duty under the remediation agreement to cooperate in good\n\nfaith.\n\n The problem with this contention, however, is that\n\nMitchell testified that he did not know who had decided to reject\n\nthe simultaneous remediation proposal or how the decision not to\n\npursue it had been made. Moreover, Thomas & Betts points to no\n\nother evidence to support its contention that New Albertson's\n\nunreasonably stood in the way of the 2007 proposal. We thus see\n\nno basis for concluding that a jury could find that New Albertson's\n\nunreasonably rejected the 2007 proposal. Accordingly, we do not\n\nsee any basis for concluding that a jury supportably could have\n\nfound a breach of the duty at issue -- the duty under the joint\n\nremediation agreement \"to cooperate in good faith\" -- based on the\n\nevidence concerning that proposal. After all, a jury cannot be\n\nasked to rely on \"mere speculation and conjecture[,]\" see Mullins\n\nv. Pine Manor Coll., 449 N.E.2d 331, 338 (Mass. 1983) (quoting\n\nInt’l Fidelity Ins. Co. v. Wilson, 443 N.E.2d 1308, 1313 (Mass.\n\n1983)), and, under Massachusetts law, \"[t]here is a presumption\n\nthat all parties act in good faith, and the plaintiff bears the\n\n\n - 23 -\n\fburden of presenting evidence of bad faith or an absence of good\n\nfaith.\" T.W. Nickerson, Inc. v. Fleet Nat. Bank, 924 N.E.2d 696,\n\n706 (Mass. 2010).\n\n 2.\n\n Thomas & Betts alternatively contends that the District\n\nCourt erred in not instructing the jury on this breach of contract\n\nclaim because of evidence about actions that New Albertson's took\n\nfrom 2008 to 2009. Thomas & Betts contends that the evidence of\n\nthese actions suffices to support a jury finding that the duty at\n\nissue was breached. Again, though, we do not agree.\n\n Thomas & Betts points to the fact that the record\n\nsupportably shows that, during this time, New Albertson's failed\n\nto offer Thomas & Betts access to Mother Brook through its property\n\nvia the north bank of the canal despite knowing that Thomas & Betts\n\nhad no other available means of accessing the canal. But, as we\n\nhave noted, under Massachusetts law, we \"presum[e] that all parties\n\nact in good faith\" and that \"the plaintiff bears the burden of\n\npresenting evidence of bad faith or an absence of good faith[.]\"\n\nId. Thus, we do not see how evidence of New Albertson's failure\n\nto offer access in and of itself could suffice to support a finding\n\nthat that New Albertson's breached its contractual duty under the\n\njoint remediation agreement \"to cooperate in good faith.\" Nor\n\ndoes Thomas & Betts identify any authority to support a conclusion\n\nthat such evidence could suffice.\n\n\n - 24 -\n\f Thomas & Betts does point to an email exchange from June\n\nof 2009 in which Thomas & Betts asked a representative of New\n\nAlbertson's for north bank access and the representative from New\n\nAlbertson's turned down the request. This exchange does show that,\n\nafter conferring on the matter with other parties tied to the\n\ndownstream supermarket property, the New Albertson's\n\nrepresentative responded. The record shows that he stated that\n\n\"we continue to see a number of serious obstacles associated with\n\nthe idea of using the north bank for access\" and that \"our shared\n\nposition at this point is to press the [south bank property owner]\n\nto comply with its existing access obligations.\"\n\n But, evidence that New Albertson's rejected a request\n\nfor access and gave its reasons for doing so is not in and of\n\nitself evidence that New Albertson's breached its duty \"to\n\ncooperate in good faith.\" And the effort by Thomas & Betts to\n\nsupply what is missing by pointing to other evidence fails.\n\n Thomas & Betts points in particular to Mitchell's\n\ntestimony that, once New Albertson's granted access to the north\n\nbank three months later in 2009, workers did not encounter any\n\n\"obstacles.\" But, the fact that Mitchell did not report any\n\nobstacles once New Albertson's did provide access in September of\n\n2009 reveals nothing about whether New Albertson's had a reasonable\n\nbasis for concluding that there were serious obstacles to providing\n\nsuch access three months earlier, in June. Moreover, Thomas &\n\n\n - 25 -\n\fBetts points to nothing in the record that indicates that it\n\nchallenged the representation that New Albertson's made regarding\n\nthe serious nature of those obstacles at the time that New\n\nAlbertson's made it. In fact, Thomas & Betts does not even\n\nidentify what it believes the record shows that those \"obstacles\"\n\nwere or on what basis a jury could find -- despite the absence of\n\nany record evidence indicating what those obstacles were -- that\n\nthe representation made by New Albertson's about the seriousness\n\nof them was not made in good faith or was otherwise unreasonable.\n\n Thus, the evidence of the exchange reflected in the email\n\ndoes not suffice to support the finding of breach that Thomas &\n\nBetts alleges. Accordingly, we reject this aspect, too, of the\n\nchallenge that Thomas & Betts brings to the District Court's\n\nfailure to give the instruction on this breach of contract claim.\n\n B.\n\n Thomas & Betts next turns its attention away from the\n\nomitted instruction concerning the breach of contract claim to\n\nfocus on four instructions that the District Court did give but\n\nthat Thomas & Betts contends were erroneous. These instructions\n\nconcerned the claims that had been brought by Thomas & Betts\n\npursuant to § 4A of Chapter 21E against New Albertson's and various\n\nof the other parties to these appeals for reimbursement, based on\n\n§ 4 of Chapter 21E, of the response costs that Thomas & Betts had\n\nincurred. We conclude, however, that the challenges to these\n\n\n - 26 -\n\finstructions provide no basis for finding that the District Court\n\nerred in denying the motion for new trial.\n\n 1.\n\n \"An erroneous jury instruction warrants a new trial if\n\n'the preserved error, based on a review of the entire record, can\n\nfairly be said to have prejudiced the objecting party.'\" Goodman\n\nv. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004) (quoting\n\nLevinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st\n\nCir. 1997)). We review de novo \"whether [each] charge in its\n\nentirety -- and in the context of the evidence -- presented the\n\nrelevant issues to the jury fairly and adequately.\" Id. Any\n\npreserved challenge to an instruction's \"matter of form or\n\nwording,\" however, is reviewed only for an abuse of discretion.\n\nId.\n\n Even if a jury instruction is erroneous, it must still\n\ncause prejudice to constitute reversible error.8 And, to be\n\nprejudicial, the error must \"adversely affect[] the jury verdict\n\nand the 'substantial rights' of the objecting party.\" Davignon v.\n\nClemmey, 322 F.3d 1, 9 (1st Cir. 2003); see also Costa-Urena v.\n\n\n\n 8\n \"Because the standard of review is a procedural matter, not\na substantive one, we are bound by federal law\" in determining\nwhether an erroneous jury instruction constitutes reversible\nerror. Alison H. v. Byard, 163 F.3d 2, 4 (1st Cir. 1998); but see\nGasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 416 (1996)\n(applying state law where the state's \"objective\" in using a\ndifferent standard of review was \"manifestly substantive\").\n\n\n - 27 -\n\fSegarra, 590 F.3d 18, 24 n.2 (1st Cir. 2009) (\"This 'harmless\n\nerror' standard applies where . . . a party has properly objected\n\nto the court's instruction at trial.\").\n\n Finally, we note that to obtain the benefit of the\n\nstandards of review described above, a party must preserve the\n\nchallenge to instructional error. If the challenge is unpreserved,\n\nhowever, it may be either forfeited or waived. A right is waived\n\nby its intentional relinquishment. Dávila v. Corporación De P.R.\n\nPara La Difusión Pública, 498 F.3d 9, 15 n.2 (1st Cir. 2007).\n\nWaived claims are generally not reviewable on appeal. See Ji v.\n\nBose Corp., 626 F.3d 116, 129 (1st Cir. 2010) (deeming an issue\n\nwaived and denying review). A forfeited claim, by contrast, may\n\nbe reviewed, but ordinarily only for plain error. See Sony BMG\n\nMusic Entm't v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011).\n\n To prevail on plain error review, the party claiming\n\nerror must show \"(1) that there was error, (2) that it was plain,\n\n(3) that it likely altered the outcome, and (4) that it was\n\nsufficiently fundamental to threaten the fairness, integrity or\n\npublic reputation of the judicial proceedings.\" Id. This standard\n\nis high, and \"it is rare indeed for a panel to find plain error in\n\na civil case.\" Id. (quoting Diaz-Fonseca v. Puerto Rico, 451 F.3d\n\n13, 36 (1st Cir. 2006)).\n\n\n\n\n - 28 -\n\f 2.\n\n Thomas & Betts first contends that the District Court\n\nerred in instructing the jury about an affirmative defense -- for\n\nlack of knowledge -- that New Albertson's, Yukon, and the Charter\n\nSchool Parties would each have to the claims by Thomas & Betts for\n\nreimbursement under § 4 of Chapter 21E of the response costs that\n\nThomas & Betts had incurred. The instruction stated that the\n\ndefense would be available to any of those parties if, as an owner\n\nof a site at which there is or has been a release or threat of\n\nrelease of hazardous material, see Mass. Gen. Laws ch. 21E,\n\n§ 5(a)(1), that owner could prove that it \"didn't know anything\"\n\nabout the release or threatened release of that material.\n\n In giving the instruction, the District Court\n\nemphasized: \"But [the owners of the site have] got to prove it.\n\nThey've got to prove it. Thomas & Betts doesn't have to prove\n\nit.\"\n\n Thomas & Betts contends that the instruction\n\n\"erroneously and confusingly conflated the question of whether a\n\ncurrent owner 'caused or contributed' to a release with the\n\nquestion of whether the current owner had knowledge of PCB\n\ncontamination.\" And, on that basis, Thomas & Betts now argues\n\nthat the instruction, insofar as it was erroneous in stating that\n\nlack of knowledge could be a defense, was also prejudicial. And,\n\nfurther, Thomas & Betts contends, that is so notwithstanding the\n\n\n - 29 -\n\fjury's finding that New Albertson's did not \"cause[] or\n\ncontribute[] to the release of PCBs to the banks or streambed of\n\nMiddle or Lower Mother Brook[.]\"\n\n The prejudice argument that Thomas & Betts advances\n\nproceeds as follows. Thomas & Betts first asserts that the\n\nliability of New Albertson's to Thomas & Betts under § 4 could be\n\nbased on New Albertson's being found liable under § 5(a)(1), as\n\nthe \"owner or operator of . . . a site from or at which there is\n\nor has been a release or threat of release\" of PCBs. Thomas &\n\nBetts then contends that New Albertson's, if it were found liable\n\nunder § 5(a)(1), could avoid being found \"liable to\" Thomas & Betts\n\nunder § 4 for a proportionate share of the response costs that\n\nThomas & Betts incurred in cleaning up Mother Brook only if the\n\njury also found that, per § 5(b), New Albertson's did not \"cause\n\nor contribute\" to the release or threat of release of PCBs into\n\nthat canal.\n\n Thus, Thomas & Betts suggests, if the instruction\n\nmistakenly conflated causation and knowledge, it could potentially\n\nhave led the jury to conclude that lack of knowledge on the part\n\nof New Albertson's -- in and of itself -- required a finding that\n\nNew Albertson's did not \"cause or contribute\" to the release. And,\n\nhence, New Albertson's thereby could wrongly escape liability to\n\nThomas & Betts, even if the record could have -- save for the\n\nmistaken instruction conflating knowledge and\n\n\n - 30 -\n\fcausation -- permitted the jury to have found that New Albertson's\n\ndid, in fact, \"cause or contribute\" to the release.\n\n But, Thomas & Betts did not argue below that the\n\ninstruction was problematic because it conflated the concepts of\n\ncausation and knowledge in the way that Thomas & Betts now contends\n\nthat the instruction conflated them. At most, Thomas & Betts\n\nargued below that the instruction was problematic simply because\n\nit permitted a lack of knowledge defense at all under § 4, such\n\nthat, even if a jury found that a party was \"liable\" under\n\n§ 5(a)(1) and had \"caused or contributed to a release\" under\n\n§ 5(b), that party could escape liability under § 4 for an\n\nequitable share of another party's response costs because that\n\nparty did not know that it had \"caused or contributed to the\n\nrelease.\"\n\n Accordingly, Thomas & Betts's new argument is forfeited,\n\nif not waived. And, as Thomas & Betts makes no argument on appeal\n\nthat it can satisfy the demanding plain error standard that\n\ntherefore applies to its new argument, this aspect of Thomas &\n\nBetts's challenge to the instruction necessarily fails. See Sony\n\nBMG Music Entm't, 660 F.3d at 503.\n\n To be sure, Thomas & Betts appears on appeal also to\n\nreprise its argument below that the instruction was wrong because\n\nit indicated that lack of knowledge is, generally, a defense to\n\nliability under § 4, even if the instruction did not thereby\n\n\n - 31 -\n\fconflate knowledge and causation. But, this aspect of its\n\nchallenge to the instruction fails on prejudice grounds. And it\n\ndoes so even if we assume that the instruction erroneously stated\n\nthat a current owner's lack of knowledge of a release or threat of\n\nrelease necessarily precludes that current owner from being found\n\nliable for \"caus[ing] or contribut[ing]\" to a release or threat of\n\nrelease.\n\n Thomas & Betts contends otherwise with respect to\n\nprejudice as follows. But for the instruction about the lack of\n\nknowledge defense, the jury could have found both New Albertson's\n\nand the Charter School Parties \"liable to\" it under § 4 of Chapter\n\n21E for at least some of its response costs based on the evidence\n\nthat New Albertson's and the Charter School Parties each \"hired\n\ncontractors who failed to properly or adequately test for PCBs in\n\nspite of the known industrial history of the properties that\n\npointed towards PCB contamination.\"\n\n As this description of Thomas & Betts's argument for\n\nshowing prejudice reveals, however, Thomas & Betts does not develop\n\nany argument as to prejudice with respect to its claim under § 4\n\nagainst Yukon. Thus, the asserted instructional error has no\n\nbearing on Thomas & Betts's appeal of the ruling below as to that\n\nclaim.\n\n With respect to the Charter School Parties, moreover,\n\nThomas & Betts obviously cannot make a showing of prejudice\n\n\n - 32 -\n\fconcerning this instruction, even assuming that it was erroneous.\n\nThe jury found that the Charter School Parties were \"liable to\"\n\nThomas & Betts for the response costs that it had incurred.\n\n That leaves, then, only the issue of prejudice as to the\n\n§ 4 claim that Thomas & Betts brings against New Albertson's. But,\n\nthe jury found, as reflected in the special verdict form, that New\n\nAlbertson's did not \"cause[] or contribute[] to the release of\n\nPCBs to the banks or streambed of Middle or Lower Mother Brook[.]\"\n\nAnd Thomas & Betts makes no argument to us -- aside from an\n\nunpreserved contention that the instruction conflated knowledge\n\nand causation -- as to how the instruction concerning the lack of\n\nknowledge could have impacted that finding. Thus, we see no basis\n\nfor concluding that the instruction wrongly led the jury to\n\nfind -- per § 5(b)'s limitation on § 5(a)(1) -- that New\n\nAlbertson's was not liable to Thomas & Betts under § 4 for\n\nreimbursement of an equitable portion of its response costs. Thus,\n\nthe challenge to the instruction fails on prejudice grounds.9\n\n\n\n\n 9\n We note that Thomas & Betts also develops no argument that\nthe failure on the part of the contractors for New Albertson's to\ntest, in and of itself, could suffice to show liability under\n§ 5(a)(5), which provides that \"any person who otherwise caused or\nis legally responsible for a release or threat of release\" is\nliable to both the Commonwealth and to parties seeking\nreimbursement under § 4 of Chapter 21E.\n\n\n - 33 -\n\f 3.\n\n Thomas & Betts next focuses on an instruction that the\n\nDistrict Court gave to the jury in response to a question that it\n\nhad asked after deliberations had begun. The District Court\n\ninitially instructed the jury that: \"[T]he law imposes on New\n\nAlbertson’s and the Charter School [Parties] the duty of giving\n\nThomas & Betts reasonable access to the area so they can clean it\n\nup. And if they do not give reasonable access to the area, well,\n\nthen they're liable for contribution anyway.\" During\n\ndeliberations, the jury asked for clarification: \"If no PCBs were\n\nreleased from a property[,] are the property owners, operators,\n\n[and] tenants, still required to provide reasonable access for\n\ncleaning up another contaminated property?\"\n\n The District Court gave the following response:\n\n The short answer is \"No.\" . . . As to current\n owners the statute imposes liability for a\n release or a continued release while they own\n it, and the business about reasonable access\n is if you are otherwise liable because of a\n release and then you don't provide reasonable\n access, then you may take that into account\n with respect to the contribution.\n\n Thomas & Betts contends that the District Court's answer\n\nto the jury's question conflicted with § 5(a)(5) of Chapter 21E.\n\nThat provision makes any \"person\" liable both to the Commonwealth\n\nand to a \"person\" seeking reimbursement under § 4 if that \"person\"\n\n\"otherwise caused or is legally responsible for a release or threat\n\n\n\n\n - 34 -\n\fof release of oil or hazardous material from a vessel or site.\"\n\nMass. Gen. Laws ch. 21E, § 5(a)(5).10\n\n By answering \"no\" to the jury's question, Thomas & Betts\n\ncontends, the District Court's instruction mistakenly precluded\n\nthe jury from finding that New Albertson's \"caused or [was] legally\n\nresponsible for a release or threat of release\" under § 5(a)(5),\n\neven if the jury found that New Albertson's denied Thomas & Betts\n\nreasonable access to Mother Brook. Thomas & Betts contends that\n\nthe District Court's \"No\" answer amounted to an erroneous\n\ninstruction to the jury that it could not find New Albertson's\n\nliable to Thomas & Betts under § 4, per § 5(a)(5), in consequence\n\nof having denied reasonable access, if the jury also found that\n\nNew Albertson's was not \"otherwise liable\" for a release.\n\n Thomas & Betts contends, moreover, that this instruction\n\nwas not only wrong, but prejudicial. With respect to prejudice,\n\nThomas & Betts argues, this instructional error foreclosed a\n\n\n 10We note that it appears that Thomas & Betts means also to\ncontend that this instruction conflicts with § 5(a)(1) of Chapter\n21E. That provision concerns a party's liability for a \"release\"\nor \"threat of release\" when it occurs \"from or at\" the property\nbelonging to that party. Thomas & Betts appears to contend on\nappeal that the instruction was problematic because it referred\nonly to a \"release\" and did not refer also to a \"threat of release.\"\nBut, Thomas & Betts's own account to us of what transpired below\ndoes not indicate that it objected below to the District Court's\ninstruction on that basis. Nor does Thomas & Betts make any\nargument that it can satisfy the plain error standard. See, e.g.,\nUnited States v. Edelkind, 467 F.3d 791, 797 (1st Cir. 2006);\nUnited States v. González-Mercado, 402 F.3d 294, 301-02 (1st Cir.\n2005).\n\n\n - 35 -\n\fsupportable basis on which the jury could have found New\n\nAlbertson's \"liable\" under § 5(a)(5). That supportable basis was\n\nthat New Albertson's \"caused or was legally responsible for a\n\nrelease\" because it denied Thomas & Betts reasonable access to\n\nMother Brook. Thus, Thomas & Betts contends, the erroneous\n\ninstruction in this way wrongly prevented the jury from finding\n\nthat Thomas & Betts was entitled to be reimbursed for response\n\ncosts by New Albertson's under § 4.\n\n But, even if we assume that Thomas & Betts is right that\n\nthe instruction was mistaken for the reasons that Thomas & Betts\n\ngives, the record does not support a finding of prejudice. See\n\nFigueroa v. Aponte-Roque, 864 F.2d 947, 951 (1st Cir. 1989). And\n\nso, for this reason, the challenge fails.\n\n In this regard, we note that, as we have already\n\nexplained in connection with the challenge that Thomas & Betts\n\nbrings to the District Court's failure to have given the breach of\n\ncontract instruction, none of the evidence that Thomas & Betts\n\nidentifies concerning New Albertson's failure to make access to\n\nits property available in 2007, 2008, or 2009 suffices to permit\n\na jury to find that New Albertson's unreasonably denied Thomas &\n\nBetts such access. For that reason, we concluded that none of\n\nthat evidence sufficed to support a finding that New Albertson's\n\n\n\n\n - 36 -\n\fthereby breached the duty to cooperate in good faith that the joint\n\nremediation agreement imposed.\n\n At most, then, the evidence that Thomas & Betts relies\n\non to show prejudice supportably shows only that New Albertson's\n\nfailed to provide access, not that it failed to provide reasonable\n\naccess. Accordingly, we do not see how, even if the instruction\n\nerred in describing § 5(a)(5) to preclude a finding of liability\n\nbased on a denial of reasonable access simply because the party\n\ndenying such access \"was not otherwise liable\" for a release of\n\nPCBs, Thomas & Betts was harmed by that error.\n\n 4.\n\n The next instruction that Thomas & Betts challenges\n\nconcerns the approximately $2.9 million that New Albertson's paid\n\nThomas & Betts pursuant to the joint remediation agreement. The\n\nparties stipulated that this nearly $2.9 million amount\n\nconstituted an interim payment to Thomas & Betts pursuant to the\n\njoint remediation agreement for the response costs that Thomas &\n\nBetts had incurred.\n\n Consistent with that stipulation, the District Court,\n\nwhile instructing the jury regarding the approximately $12.7\n\nmillion in response costs incurred by Thomas & Betts, told the\n\njury:\n\n Let me pause for a moment and say, because I\n think it will occur to you, but what about the\n 2.9 million that it's undisputed New\n\n\n - 37 -\n\f Albertsons has already paid to Thomas & Betts?\n The way we've worked that out is I'm taking\n care of that. It's undisputed as to that. If\n when all the things you find it turns out that\n New Albertsons owes more money than that to\n Thomas & Betts, whatever that amount is, I'm\n going to subtract the 2.9 million from that.\n If when the dust settles it's less than that,\n I'm going to have Thomas & Betts reimburse New\n Albertsons for that amount of money.\n\n Thomas & Betts did not object to this instruction at the\n\ntime that it was given. Our review, therefore, is only for plain\n\nerror. Sony BMG Music Entm't, 660 F.3d at 503. Thomas & Betts\n\nmakes no argument, however, as to how it can satisfy that high\n\nbar. This failure alone dictates that Thomas & Betts must lose on\n\nthis issue. See, e.g., Edelkind, 467 F.3d at 797; González-\n\nMercado, 402 F.3d at 301-02.\n\n Moreover, Thomas & Betts could not prevail even if it\n\nhad properly preserved this challenge. Thomas & Betts contends\n\nthat the wording of the instruction created \"confusion.\" Thomas\n\n& Betts points out that the verdict form asked the jury to\n\napportion response costs between Thomas & Betts and New Albertson's\n\nwith respect to two seemingly distinct pools of money. Thomas &\n\nBetts notes in this regard that Question One on the special verdict\n\nform asked the jury about the $12.7 million in response costs that\n\nThomas & Betts had incurred, while Question Two on the special\n\nverdict form asked the jury about the $790,000 in response costs\n\nthat New Albertson's had incurred. According to Thomas & Betts,\n\n\n\n - 38 -\n\fhowever, the District Court's instruction did not make clear\n\nwhether the roughly $2.9 million that New Albertson's had paid to\n\nThomas & Betts under the joint remediation agreement was to be\n\nconsidered as part of the pool of money referenced in Question One\n\nor as part of the pool of money referenced in Question Two.\n\n But, as this challenge to the instruction concerns only\n\nits wording, our review would be for an abuse of discretion even\n\nif it were not forfeited. Mejías-Aguayo v. Doreste-Rodríguez, 863\n\nF.3d 50, 57 n.5 (1st Cir. 2017). The question thus would be\n\n\"whether the jury instructions as a whole 'adequately explained\n\nthe law or whether they tended to confuse or mislead the jury on\n\ncontrolling issues.'\" McDonald v. Town of Brookline, 863 F.3d 57,\n\n65 (1st Cir. 2017) (quoting Federico v. Order of Saint Benedict in\n\nR.I., 64 F.3d 1, 4 (1st Cir. 1995)).\n\n When considered in the context of the instructions as a\n\nwhole, and given the discretion that we afford district courts to\n\nchoose the wording of their instructions, the instruction sufficed\n\nto make clear that the roughly $2.9 million should be considered\n\npart of the $12.7 million in response costs that Thomas & Betts\n\nhad incurred. After all, the District Court explained to the jury\n\nimmediately before giving the instruction that it was undisputed\n\nthat Thomas & Betts had incurred $12.7 million in response costs;\n\nthat \"of that amount\" New Albertson's had paid roughly $2.9 million\n\nto Thomas & Betts; and that the jury had to determine which\n\n\n - 39 -\n\fentities were liable to Thomas & Betts for those costs incurred by\n\nThomas & Betts. Accordingly, the challenge that Thomas & Betts\n\nbrings to this instruction is without merit.\n\n 5.\n\n The last instruction that Thomas & Betts focuses on in\n\nchallenging the District Court's denial of its motion for new trial\n\nstates in part that \"Thomas & Betts has to prove [the amount of\n\nresponse costs Thomas & Betts incurred] and they have to prove\n\nthat they incurred costs in performing the response actions. The\n\nresponse actions here are cleaning up Middle and Lower Mother\n\nBrook.\" The instruction then goes on to state that Thomas & Betts\n\nhad to prove \"that it was the release of PCBs [by the parties from\n\nwhich Thomas & Betts seeks to recover] is what caused Thomas &\n\nBetts to incur the response costs, that is the release of PCBs now\n\non the banks or into the brook itself was a substantial\n\ncontributing factor in bringing about the response costs.\"\n\n Thomas & Betts contends that this instruction -- by using\n\nthe phrase \"substantial contributing factor\" -- wrongly instructed\n\nthe jury that the defendants, including Dampney, were entitled to\n\na de minimis defense to being found liable under § 5 of Chapter\n\n21E. Thus, Thomas & Betts goes on to contend, the jury could have\n\nfound on that mistaken basis that these defendants were not\n\nrequired to reimburse Thomas & Betts for response costs under § 4.\n\nIn pressing this point, Thomas & Betts contends that because\n\n\n - 40 -\n\fAcushnet Co. v. Mohasco Corp., 191 F.3d 69, 72, 76-78 (1st Cir.\n\n1999), precludes such a de minimis defense under CERCLA, Chapter\n\n21E must be construed to preclude such a defense as well. See\n\nJohn S. Boyd Co., 992 F.2d at 404 n.3.\n\n Thomas & Betts, however, misapprehends the instruction.\n\nThe instruction merely permits a court to take account of the de\n\nminimis nature of a release or threatened release in determining\n\nthe equitable allocation of response costs under § 4 of Chapter\n\n21E. Yet, Massachusetts law allows a court to do just that. See\n\nJohn Beaudette, Inc. v. J.P. Noonan Transp., Inc., 644 N.E.2d 218,\n\n220-21 (Mass. 1995) (construing Chapter 21E). In fact, Acushnet\n\nitself allows a court to do the same in apportioning equitable\n\nshares of similar cleanup costs under CERCLA. 191 F.3d at 76-78\n\n(construing CERCLA).\n\n Thomas & Betts's briefing on appeal could be read to\n\nargue that the instruction was problematic for an additional but\n\nrelated reason. Thomas & Betts appears to contend that the\n\ninstruction was worded in such a way as to suggest incorrectly the\n\nfollowing: The de minimis exception applies not only to the\n\nequitable allocation of response costs among \"liable\" parties\n\nunder § 4 but also to the threshold question of whether a \"person\"\n\nis \"liable\" pursuant to § 5 of Chapter 21E for a release or\n\n\n\n\n - 41 -\n\fthreatened release of PCBs, such that the \"person\" may be \"liable\"\n\nunder § 4 for any share at all of another's response costs.\n\n But, Thomas & Betts did not raise such an objection to\n\nthe instruction's allegedly confusing wording at the time that the\n\ninstruction was given. Nor does Thomas & Betts argue on appeal\n\nthat the instruction was so confusingly worded in this respect\n\nthat it constituted plain error. See, e.g., Edelkind, 467 F.3d at\n\n797; González-Mercado, 402 F.3d at 301-02. And, in any event,\n\ninsofar as that is the objection that Thomas & Betts now means to\n\nmake, the text of the instruction simply does not permit a reading\n\nthat would give rise to this sort of confusion.\n\n C.\n\n The final challenge to the District Court's denial of\n\nthe motion for new trial that Thomas & Betts brings is that the\n\njury's special verdict was inconsistent in a key respect. Our\n\nreview is de novo, Trull v. Volkswagen of Am., Inc., 320 F.3d 1,\n\n5-6 (1st Cir. 2002), but \"[a] special verdict will be upheld if\n\nthere is a view of the case which makes the jury's answers\n\nconsistent.\" McIsaac v. Didriksen Fishing Corp., 809 F.2d 129,\n\n133 (1st Cir. 1987).11\n\n\n\n 11 The standard of review for verdict inconsistency in\ndiversity cases is a matter of procedure and thus governed by\nfederal law. See McIsaac, 809 F.2d at 133 (applying federal\nstandard of review to claim of verdict inconsistency in a diversity\ncase).\n\n\n - 42 -\n\f The jury found, as to Question One on the special verdict\n\nform, that New Albertson's was not \"liable to\" Thomas & Betts for\n\nany of its response costs. The jury found, by contrast, in\n\nresponse to Question Two on the special verdict form, that other\n\nparties were \"liable to\" New Albertson's for only 75 percent of\n\nits response costs.\n\n Thomas & Betts contends that these findings cannot be\n\nreconciled. The parties clash over whether Thomas & Betts\n\nsufficiently preserved this challenge. They thus dispute whether\n\nit has been waived and whether, if it has not, it at least has\n\nbeen forfeited.\n\n Thomas & Betts did arguably waive this objection by\n\nrepeatedly asserting to the District Court, in defending the use\n\nof the verdict form, that it would be permissible for the jury to\n\nmake different findings in response to Questions One and Two. See\n\nCorreia v. Fitzgerald, 354 F.3d 47, 57 (1st Cir. 2003) (explaining\n\nthat \"failure to object to an alleged inconsistency while the jury\n\nis still in the box forfeits a party's objection, subject only to\n\nthe possibility of relief for plain error.\"). But, even if we\n\nwere to conclude that Thomas & Betts's failure to object to the\n\nverdict form merely forfeited the issue, Thomas & Betts's\n\ninconsistent-verdicts challenge would still fail.\n\n Thomas & Betts makes no argument, after all, that any\n\nerror here constituted plain error. See United States v. Zannino,\n\n\n - 43 -\n\f895 F.2d 1, 17 (1st Cir. 1990). We also conclude, however, that\n\nThomas & Betts's argument would fail even if we were to treat the\n\nchallenge as preserved.\n\n The defendants' joint response contends that the jury\n\nreasonably could be understood to have found -- perfectly\n\nconsistently -- two things simultaneously. The jury could have\n\nfound that New Albertson's was not \"liable to\" Thomas & Betts,\n\nbased on § 4 of Chapter 21E, for the response costs that Thomas &\n\nBetts had incurred. The jury also could have found, at the same\n\ntime, that New Albertson's failed to meet its own separate burden\n\nto prove that Thomas & Betts was \"liable to\" it under that same\n\nsection of Chapter 21E for 100 percent (rather than merely 75\n\npercent, as the jury found) of its own response costs.\n\n Thomas & Betts attempts to show that the jury's verdicts\n\ncannot be reconciled in this manner, but its effort to do so fails.\n\nThomas & Betts premises this effort to demonstrate that the\n\nreconciliation of the verdicts proposed by the defendants' joint\n\nresponse is untenable on its reading of the SJC's decision in\n\nMartignetti v. Haigh-Farr Inc., 680 N.E.2d 1131 (Mass. 1997).\n\nThomas & Betts points out that Martignetti states that, under § 4\n\nof Chapter 21E, \"100% of the reasonable response costs must be\n\napportioned among the liable parties.\" Id. at 1141-42.\n\nAccordingly, Thomas & Betts contends, Martignetti forecloses the\n\n\n\n\n - 44 -\n\freconciliation of the verdicts offered by the defendants' joint\n\nresponse in the following way.\n\n Thomas & Betts argues that, because the jury allocated\n\nonly 75 percent of the response costs that New Albertson's incurred\n\nto a party other than New Albertson's, the jury necessarily\n\nconcluded that New Albertson's was \"liable\" under Chapter 21E.\n\nOtherwise, Thomas & Betts maintains, the jury could not have found\n\nThomas & Betts \"liable to\" New Albertson's for less than all of\n\nits response costs. In consequence, Thomas & Betts proceeds to\n\nargue, the proposed reconciliation of the verdicts necessarily and\n\nimpermissibly depends on attributing to the jury -- in violation\n\nof the passage quoted above from Martignetti -- an allocation of\n\nless than 100 percent of the response costs among the \"liable\"\n\nparties.\n\n Thomas & Betts, however, misunderstands the passage in\n\nMartignetti on which it relies. In that case, the SJC construed\n\n§ 4 of Chapter 21E merely to require that response costs be shared\n\n\"among parties whose underlying liability to the Commonwealth is\n\nimposed by the provisions of § 5.\" Id. (emphasis added). In other\n\nwords, Martignetti does hold that, under § 4, a party must at least\n\nbe \"liable to the Commonwealth\" under § 5 in order to be \"liable\n\nto\" another party, under § 4, for the response costs that party\n\nhad incurred. But, Martignetti does not hold that § 5 requires\n\nthat every party who is \"liable to the Commonwealth\" is also\n\n\n - 45 -\n\fnecessarily, under § 4, \"liable\" to other parties for the response\n\ncosts that each of them had incurred. Mass. Gen. Laws ch. 21E,\n\n§ 5(b). Rather, a person who is \"liable to the Commonwealth\"\n\nsolely under § 5(a)(1), i.e., a current owner, is not liable to\n\nparties seeking reimbursement under § 4 -- unless the party seeking\n\nreimbursement is also \"liable to the Commonwealth\" solely under\n\n§ 5(a)(1) -- if the current owner can show, per § 5(b), that it\n\ndid not own the site at the time of the release in question and\n\ndid not \"cause or contribute\" to the release.\n\n This parsing of Martignetti matters, moreover, in the\n\nfollowing way. In considering this challenge to the verdicts, we\n\n\"must attempt to reconcile the jury's findings, by exegesis if\n\nnecessary.\" Acevedo-Diaz v. Aponte, 1 F.3d 62, 74 n.15 (1st Cir.\n\n1993) (quoting Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108,\n\n119 (1963)). And, on the basis of this parsing, we conclude,\n\nconsistent with Martignetti, that the jury's verdicts may be\n\nreconciled in the manner that the defendants' joint response\n\nproposes without running afoul of Chapter 21E.\n\n Chapter 21E permitted the jury to find that New\n\nAlbertson's was \"liable to\" the Commonwealth under § 5(a)(1) for\n\nthe release or threat of release of PCBs into Mother Brook and\n\nthus incurred response costs of its own. But, Chapter 21E did not\n\nthereby require the jury also to find that, under § 4, New\n\nAlbertson's was \"liable to\" Thomas & Betts for any (let alone all)\n\n\n - 46 -\n\fof its response costs. A party \"liable to\" the Commonwealth under\n\n§ 5(a)(1) need not also be found, under § 4, \"liable to\" any other\n\nparty that incurred response costs. And, the jury could also have\n\nfound, New Albertson's was entitled to reimbursement under § 4 by\n\nThomas & Betts for the portion of the response costs New\n\nAlbertson's incurred that New Albertson's could prove that Thomas\n\n& Betts owed to it, even though New Albertson's could not show\n\nunder § 4 that Thomas & Betts was liable to it for all the response\n\ncosts that New Albertson's had incurred.\n\n Thomas & Betts, moreover, makes no argument that the\n\nrecord fails to provide adequate evidentiary support for any such\n\nfindings. And that is no surprise. The jury found that New\n\nAlbertson's did not \"cause[] or contribute[] to the release of\n\nPCBs to the banks or streambed of Middle or Lower Mother Brook[.]\"\n\nThat is the finding that, pursuant to § 5(b), a jury has to make\n\nin order for the jury to find that a party that is \"liable to\" the\n\nCommonwealth under § 5(a)(1) is not, under § 4, \"liable to\" other\n\nparties for a share of their response costs.\n\n We thus find no inconsistency in the verdicts. And,\n\nhaving thus dispensed with the challenges that Thomas & Betts\n\nbrings to the judgment concerning its claims based on § 4 of\n\nChapter 21E, we turn to the challenges that the other parties to\n\nthese consolidated appeals bring.\n\n\n\n\n - 47 -\n\f III.\n\n We start by considering the challenges brought by Alfa\n\nLaval, a centrifuge manufacturer and a past owner of the south\n\nbank property across the canal from New Albertson's property. We\n\nfind no merit in them.\n\n A.\n\n The jury found that Alfa Laval, under § 4 of Chapter\n\n21E, was \"liable to\" Thomas & Betts for 14 percent of its response\n\ncosts but was not \"liable to\" New Albertson's for any of its\n\nresponse costs. Alfa Laval contends both that the evidence did\n\nnot suffice to support the judgment that it was \"liable to\" Thomas\n\n& Betts under § 4 for the response costs that it had incurred and\n\nthat the District Court made two reversible trial errors. We\n\naddress these three arguments in turn.\n\n 1.\n\n Alfa Laval unsuccessfully pressed its sufficiency\n\nchallenge in both a (renewed) motion for judgment as a matter of\n\nlaw under Rule 50(b) of the Federal Rules of Civil Procedure and\n\nin an alternative motion for a new trial under Rule 59 of the\n\nFederal Rules of Civil Procedure. A renewed motion for judgment\n\nas a matter of law under Rule 50(b) may be granted \"only if a\n\nreasonable person, on the evidence presented, could not reach the\n\nconclusion that the jury reached,\" and we review its denial de\n\nnovo. Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st\n\n\n - 48 -\n\fCir. 2008). A motion for a new trial under Rule 59 may be granted\n\nonly \"if the verdict is against the law, against the weight of the\n\ncredible evidence, or tantamount to a miscarriage of justice,\" and\n\nwe review its denial for an abuse of discretion. Teixeira v. Town\n\nof Coventry, 882 F.3d 13, 16 (1st Cir. 2018)(quoting Casillas-Díaz\n\nv. Palau, 463 F.3d 77, 81 (1st Cir. 2006)).\n\n Alfa Laval contends that the evidence was insufficient\n\nfor a jury reasonably to find an adequate basis for its liability\n\nunder either § 5(a)(2) or § 5(a)(5) of Chapter 21E. Thus, Alfa\n\nLaval contends, a jury could not reasonably find it liable, under\n\n§ 4 of that Chapter, for an equitable share of the response costs\n\nthat Thomas & Betts incurred.12 Because the rule in our circuit\n\nin civil cases is that a new trial that has been requested is\n\n\"usually warranted\" if the evidence is insufficient with respect\n\nto any one of multiple theories covered by a special verdict\n\nquestion, Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 29-30\n\n(1st Cir. 2004) (quoting Kerkhof v. MCI Worldcom, Inc., 282 F.3d\n\n44, 52 (1st Cir. 2002)), we address each of Alfa Laval's\n\nsufficiency challenges in turn.\n\n Under § 5(a)(2), a \"person\" is liable both to the\n\nCommonwealth and to parties seeking reimbursement under § 4 if \"at\n\n\n 12We note, though, that Alfa Laval does not argue that,\ninsofar as the evidence does suffice to show that it could be\nallocated an equitable share of the response costs of others under\n§ 4, the share allocated to it was too high.\n\n\n - 49 -\n\fthe time of storage or disposal\" that person \"owned or operated\n\nany site at or upon which such hazardous material was stored or\n\ndisposed of and from which there is or has been a release or threat\n\nof release of hazardous material.\" Mass. Gen. Laws ch. 21E,\n\n§ 5(a)(2). Alfa Laval contends that Thomas & Betts failed to\n\nprovide an adequate evidentiary basis -- as opposed to mere\n\n\"conjecture or speculation\" -- upon which a jury could rely to\n\nfind that it \"stored or used PCBs during its ownership/operation\n\nof the 1415 property.\"\n\n All parties stipulated that American Tool & Machine\n\nCompany (\"AT&M\"), which owned and operated that property before\n\nAlfa Laval purchased it, caused or contributed to a release of\n\nPCBs because of its industrial operations on that property. And,\n\nAlfa Laval contends, the PCBs on its property are attributable\n\nonly to AT&M's prior operations on that site and not to Alfa\n\nLaval's own activity on that property after purchasing AT&M's\n\nbusiness operations in 1968.\n\n But, Thomas & Betts contends, \"[l]ooking at the record\n\nas a whole[,] . . . it was eminently reasonable for a jury to\n\nconclude that Alfa Laval, which bought AT&M's tool-making\n\noperation lock, stock and barrel, also used and disposed of PCBs\n\nand is therefore liable under § 5(a)(2).\" To support this\n\ncontention, Thomas & Betts points to the following facts: \"All of\n\nthe employees, [including] the foreman and the manager for Alfa\n\n\n - 50 -\n\fLaval came directly from AT&M[;]\" Alfa Laval manufactured the same\n\nproducts as AT&M; and Alfa Laval \"used cutting, hydraulic and\n\nlubricating oils in the manufacture of those products, as did\n\nAT&M.\" Thomas & Betts further notes that Alfa Laval presented no\n\nevidence to the jury that its operations differed in any material\n\nrespects from AT&M's.\n\n We agree that, on this record, an inference of continued\n\nPCB usage was \"plainly reasonable in the absence of any evidence\n\ncutting against it.\" W. Props. Serv. Corp. v. Shell Oil Co., 358\n\nF.3d 678 (9th Cir. 2004); see also United States v. Davis, 261\n\nF.3d 1, 32 (1st Cir. 2001) (\"[D]irect evidence is not a\n\nprerequisite to proving the elements of liability in a contribution\n\naction [under CERCLA].\"); Niagara Mohawk Power Corp. v. Chevron\n\nU.S.A., 596 F.3d 112, 131 (2d Cir. 2010) (\"[T]here is nothing\n\nobjectionable in basing findings [for purposes of liability in\n\nCERCLA] solely on circumstantial evidence, especially where the\n\npassage of time has made direct evidence difficult or impossible\n\nto obtain.\" (quoting Franklin Cty. Convention Facilities Auth. v.\n\nAm. Premier Underwriters Inc., 240 F.3d 534, 547 (6th Cir. 2001))).\n\nThus, Alfa Laval's first challenge to the sufficiency of the\n\nevidence fails.\n\n Moreover, Thomas & Betts contends that spreading\n\ncontaminated soil during construction is properly considered\n\n\"disposal\" for purposes of § 5(a)(2), based in part on precedent\n\n\n - 51 -\n\fconstruing that term in CERCLA. See Tanglewood E. Homeowners v.\n\nCharles-Thomas, Inc., 849 F.2d 1568, 1573 (5th Cir. 1988);\n\nBonnieview Homeowners Ass'n v. Woodmont Builders, LLC, 655 F. Supp.\n\n2d 473, 492 (D.N.J. 2009) (finding that under CERCLA \"a 'disposal'\n\nmay occur when a party disperses contaminated soil during the\n\ncourse of grading and filling a construction site\" (quoting Redwing\n\nCarriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1510 (11th\n\nCir. 1996))). We have previously explained that \"CERCLA is in\n\nmany ways analogous to the Massachusetts statute,\" and that \"the\n\nMassachusetts courts construe [Chapter 21E] in line with the\n\nfederal decisions absent compelling reasons to the contrary or\n\nsignificant differences in the content.\" John S. Boyd Co., Inc.\n\nv. Bos. Gas. Co., 992 F.2d 401, 404 n.3 (1st Cir. 1993). Alfa\n\nLaval, for its part, does contest this legal point, but only in\n\nits reply brief, which it may not do.13 See Waste Mgmt. Holdings,\n\nInc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000).\n\n We turn, then, to Alfa Laval's contention that the record\n\nfailed to provide a supportable basis for a jury to find Alfa Laval\n\nliable under § 5(a)(2) on the basis of its construction-related\n\n\n\n 13 Alfa Laval's reply brief, we note, concludes that the\nconduct at issue does not constitute a \"disposal\" for purposes of\n§ 5(a)(2) solely on the basis of a Massachusetts Superior Court\ncase, Byrnes v. Massachusetts Port Auth., No. 920178, 1994 WL\n879644 (Mass. Super. Mar. 2, 1994), that concerned \"leaking\" and\n\"leaching\" of contaminants and not the kind of construction-\nrelated activities that are at issue here.\n\n\n - 52 -\n\fgrading and excavation activities. Thomas & Betts introduced\n\naerial photographs of the site that showed that Alfa Laval\n\ndemolished buildings, engaged in construction, graded an area to\n\nbuild a parking lot, and otherwise disturbed the soil on the\n\nproperty where significant PCB concentrations were later found.\n\nAlfa Laval responds that Thomas & Betts's expert impermissibly\n\nprovided \"speculation, conjecture and generalization\" in claiming\n\nthat these activities caused releases of PCBs into Mother Brook.\n\n But, a jury could have drawn a reasonable inference that\n\n\"[t]he amount of earthwork and [] disturbance of the soil\" and the\n\nundisputed fact that Alfa Laval \"removed certain improvements from\n\nthe property[] and added a new building and parking surface\" showed\n\nthat there was a release of PCBs from the property into Mother\n\nBrook during Alfa Laval's period of ownership and thus that Alfa\n\nLaval was liable under § 5(a)(2). See Davis, 261 F.3d at 32;\n\nNiagara Mohawk Power Corp., 596 F.3d at 131. Thus, we conclude\n\nthat the concerns that Alfa Laval raises about Thomas & Betts's\n\nexpert's testimony go only to the \"weight, not sufficiency,\" of\n\nthe evidence. See Milone v. Moceri Family, Inc., 847 F.2d 35, 40\n\nn.5 (1st Cir. 1988). Accordingly, we reject Alfa Laval's challenge\n\n\n\n\n - 53 -\n\fthat a reasonable jury could not have found it liable under\n\n§ 5(a)(2).14\n\n Alfa Laval separately contends that there was\n\ninsufficient evidence for a jury to find that it was liable to\n\nThomas & Betts under § 5(a)(5). That provision imposes liability\n\nto the Commonwealth and to parties seeking reimbursement under § 4\n\non \"any person who otherwise caused or is legally responsible for\n\na release or threat of release of oil or hazardous material from\n\na . . . site.\" Mass. Gen. Laws ch. 21E, § 5(a)(5). Alfa Laval\n\ncorrectly contends that, to prevail on a § 5(a)(5) theory of\n\nliability, \"a plaintiff must first establish both that the\n\ndefendant caused the release and that the release caused the\n\ncontamination.\" And, Alfa Laval notes, \"cause\" in this context\n\n\"means legal or proximate cause.\" One Wheeler Rd. Assocs. v.\n\nFoxboro Co., No. 90-12873, 1995 WL 791937, at *8 (D. Mass. Dec.\n\n13, 1995).\n\n Alfa Laval argues that this standard of liability is\n\n\"higher than that applied to § 5(a)(2).\" Thus, for the same\n\n\n\n 14 To the extent Alfa Laval is making the separate argument\nthat the release of PCBs from its property was not a \"but for\"\ncause of the contamination and thus that it is not \"liable\" under\n§ 5(a)(5) of Chapter 21E, this challenge also fails. Alfa Laval\npoints to testimony from Dr. Neil Shifrin to show that the\ncontamination from Thomas & Betts's property was \"more than\nsufficient\" to cause the contamination in Mother Brook. But this\nis merely another form of a de minimis defense to liability under\n§ 5, which is expressly foreclosed by Acushnet. 191 F.3d at 71.\n\n\n - 54 -\n\freasons that it contends that Thomas & Betts failed to prove\n\n§ 5(a)(2) liability, Alfa Laval argues that Thomas & Betts also\n\nfalls short on this theory as well.\n\n Alfa Laval's only argument that Thomas & Betts failed to\n\nprovide sufficient evidence of liability under § 5(a)(5), however,\n\nis that Thomas & Betts failed to provide adequate evidence of\n\ncausation of a release. But, as we have already explained, a\n\nreasonable jury could have found that Alfa Laval's industrial\n\noperations on the site involved the active use, storage, and\n\ndisposal of PCBs and that releases of PCBs occurred at this time.\n\nAnd, as we also have already explained, a jury could additionally\n\nhave concluded that construction-related activities by Alfa Laval\n\non the site further caused releases of PCBs.\n\n Moreover, Alfa Laval makes no argument -- aside from\n\nmerely pointing out that the legal standard for liability is higher\n\nunder § 5(a)(5) than it is under § 5(a)(2) -- that, even if a jury\n\ncould reasonably have found these facts and imposed liability\n\npursuant to § 5(a)(2), these actions by Alfa Laval do not suffice\n\nalso to show § 5(a)(5) liability. Thus, we fail to see why a\n\nreasonable jury could not conclude that Alfa Laval \"legal[ly] or\n\nproximate[ly] caused,\" One Wheeler Rd. Assocs., 1995 WL 791937, at\n\n*8, a release of PCBs into Mother Brook based on its industrial\n\nand construction activities. Accordingly, we reject Alfa Laval's\n\nchallenge to the verdict on sufficiency grounds.\n\n\n - 55 -\n\f 2.\n\n Having rejected the challenges to the sufficiency of the\n\nevidence of liability under § 5, such that Alfa Laval could be\n\nfound \"liable to\" Thomas & Betts under § 4, we now turn to Alfa\n\nLaval's challenges to certain alleged trial errors. The first\n\nchallenge is to the District Court's denial of Alfa Laval's motion\n\nfor a new trial because of an instructional error that it contends\n\nthat the District Court made during its charge to the jury. The\n\ninstruction concerned Alfa Laval's potential liability under § 4\n\nto Thomas & Betts for reimbursement of its response costs based on\n\nAlfa Laval being the alleged successor to a company -- AT&M --\n\nthat previously owned the site.\n\n The District Court instructed the jury that \"Thomas &\n\nBetts has to prove what's called 'successor liability'\" and that\n\nthe jury should consider four factors in deciding whether Thomas\n\n& Betts has proven such. The District Court then listed the four\n\nfactors that must be considered with respect to this de-facto-\n\nmerger exception to the default no-liability rule. After doing\n\nso, the District Court also told the jury that: \"No single one\n\nfactor is necessary or sufficient, you must determine the substance\n\nof the agreement of the parties, is it implicit that Alfa Laval\n\nwould succeed to the legal obligations of [AT&M]?\"\n\n Alfa Laval objected to this instruction on the ground\n\nthat the District Court had not \"talked about the general rule\n\n\n - 56 -\n\fthat there is no liability and that there has to be an element of\n\nproof proving up an exception.\" The District Court overruled that\n\nobjection, and Alfa Laval now presses that same challenge to the\n\ninstruction on appeal.15\n\n We review de novo whether a jury instruction in context\n\n\"presented the relevant issues to the jury fairly and adequately.\"\n\nGoodman, 380 F.3d at 47. Here, however, the District Court plainly\n\ninstructed the jury that \"Thomas & Betts has to prove what's called\n\n'successor liability.'\" But, because \"judges generally need not\n\nmimic the precise wording of a party's preferred instruction,\"\n\nUnited States v. Denson, 689 F.3d 21, 26 (1st Cir. 2012), we reject\n\nAlfa Laval's challenge to this jury instruction.\n\n 3.\n\n Alfa Laval's challenge to the other asserted trial error\n\nconcerns the District Court's exclusion of certain testimony by an\n\nexpert witness, James O'Brien. Alfa Laval did not make this\n\n\n\n 15Alfa Laval also contends on appeal that the District Court\nerred by not instructing the jury regarding the other\nexceptions -- beyond the exception for a de-facto merger -- to the\ndefault no-liability rule. We agree with Thomas & Betts, however,\nthat Alfa Laval did not preserve this issue below. Nor does Alfa\nLaval make a plain error argument. See Chestnut v. City of Lowell,\n305 F.3d 18, 20 (1st Cir. 2002) (describing the plain error test).\nIn any event, we fail to see how Alfa Laval could have been\nprejudiced by an instruction that minimized the grounds on which\nAlfa Laval could be found liable. See Goodman, 380 F.3d at 47\n(explaining that instructional error warrants a new trial only\nupon a showing of prejudice).\n\n\n\n - 57 -\n\fchallenge before the District Court in either its motion for a new\n\ntrial or in its motion for judgment as a matter of law. Thomas &\n\nBetts, however, makes no argument that our review should thus be\n\nfor plain error, let alone that the issue is waived. In any event,\n\nwe conclude that Alfa Laval fails even under the more generous\n\nabuse of discretion standard that we apply when reviewing a\n\nDistrict Court's decision to exclude expert testimony. Wilder v.\n\nEberhart, 977 F.2d 673, 676 (1st Cir. 1992).16\n\n At trial, O'Brien attempted to testify as to the\n\nlikelihood that PCBs flowed from Alfa Laval's property to the south\n\nbank on the basis of \"total PCB\" data. Thomas & Betts objected to\n\nthis testimony on the basis that it constituted a \"new opinion.\"\n\nThe District Court sustained this objection. See Poulis-Minott v.\n\nSmith, 388 F.3d 354, 358 (1st Cir. 2004) (explaining that the\n\nfailure to disclose an expert opinion before trial precludes the\n\nintroduction of that opinion at trial), and O'Brien was prevented\n\nfrom testifying about that opinion at trial.\n\n\n\n\n 16 Alfa Laval separately contends that the District Court's\nfailure to rule comprehensively on Thomas & Betts's pretrial motion\nto exclude reference, including by O'Brien, to so-called Aroclor\ndata was an abdication of the District Court's gatekeeping role.\nAroclor data differentiates between types of PCBs. Yet Alfa Laval\ncites no authority to support its contention that the District\nCourt's ruling on the presentation of the Aroclor data on an\nexpert-by-expert basis constitutes an abdication of this\ngatekeeping role. Accordingly, this challenge is waived for lack\nof development. Zannino, 895 F.2d at 17.\n\n\n - 58 -\n\f Alfa Laval now contends on appeal that the District Court\n\nerred because O'Brien's pre-trial expert report itself referenced\n\n\"total PCB [] data\" that were available for various sediment\n\nsamples. Thus, Alfa Laval contends, the proposed testimony that\n\nthe District Court barred O'Brien from giving did not constitute\n\na new opinion because the pre-trial report had already disclosed\n\nit.\n\n O'Brien did not reach any conclusions, however, in his\n\npre-trial report on the basis of total PCB data. Nor did he\n\ndisclose in that report -- or elsewhere -- the methodology by which\n\nhe would reach any such conclusions. Thus, the mere fact that\n\nO'Brien's pre-trial report disclosed that he had reviewed total\n\nPCB data did not preclude the District Court from finding, in its\n\ndiscretion, that the opinions and conclusions that he drew from\n\nthat data were \"new\" and thus inadmissible because they were not\n\npreviously disclosed. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,\n\n146 (1997) (finding that district courts do not abuse their\n\ndiscretion when they decline to admit opinion evidence that \"is\n\nconnected to existing data only by the ipse dixit of the expert\"\n\nor where there is \"simply too great an analytical gap between the\n\ndata and the opinion proffered\"); see also Licciardi v. TIG Ins.\n\nGrp., 140 F.3d 357, 363 (1st Cir. 1998) (explaining that the\n\ndisclosure requirements regarding expert opinions are intended \"to\n\nalleviate the heavy burden placed on a cross-examiner confronted\n\n\n - 59 -\n\fby an opponent's expert whose testimony had just been revealed for\n\nthe first time in open court\" (internal quotations omitted)).\n\n IV.\n\n We now turn to the appeal by the Charter School Parties.\n\nThe jury found the Charter School Parties \"liable to\" Thomas &\n\nBetts, with respect to its claims based on § 4 of Chapter 21E, for\n\n1 percent of the response costs that it had incurred. The District\n\nCourt entered judgment against the Charter School Parties on that\n\nbasis. The Charter School Parties challenge the District Court's\n\ndenial of its renewed motion for judgment as a matter of law. They\n\nargued in that motion that the evidence was insufficient as a\n\nmatter of law to support a finding that they were \"liable to\"\n\nThomas & Betts under § 4 of Chapter 21E for any of its response\n\ncosts, and that, to the extent that they were liable, the evidence\n\ndid not suffice to support the finding that they were responsible\n\nfor 1 percent of the response costs, small though that allocation\n\nis. See Fed. R. Civ. P. 50(b). Accordingly, they contend that\n\nbecause there is insufficient evidence on any of the theories to\n\nsupport the judgment below, they are entitled to judgment as a\n\nmatter of law. Judgment as a matter of law is warranted only if\n\nthe evidence \"is so one-sided that the movant is plainly entitled\n\nto judgment\" such that \"reasonable minds could not differ as to\n\nthe outcome.\" Gibson v. City of Cranston, 37 F.3d 731, 735 (1st\n\n\n\n\n - 60 -\n\fCir. 1994). Our review of the District Court's denial of such a\n\nmotion is de novo. See Visible Sys., 551 F.3d at 71.\n\n A.\n\n It is true, as the Charter School Parties point out,\n\nthat they did not become the owners of the south bank property\n\nabutting Mother Brook until September of 2008. But, contrary to\n\nthe Charter School Parties' contention, Thomas & Betts offered\n\nsufficient evidence from which the jury could have reasonably found\n\nthat, after the Charter School Parties acquired the south bank\n\nproperty in 2008, there was a \"release or threat of release\" from\n\nor at that property. Mass. Gen. Laws ch. 21E, § 5(a)(1). Thus,\n\na jury could reasonably find that the Charter School Parties were\n\n\"liable to\" Thomas & Betts for at least some portion of its\n\nresponse costs under § 4, as the jury could have found that, under\n\n§ 5(a)(1), the Charter School Parties were \"liable\" for a \"release\n\nor threat of release\" of PCBs as a current owner of a property.\n\nId.\n\n In arguing otherwise, the Charter School Parties devote\n\na great deal of time and attention to what the evidence showed\n\nabout a single drain basin, discovered on its property in 2009.\n\nThey contend that this evidence alone does not permit a jury\n\nreasonably to find that there had been a release or threat of\n\nrelease of PCBs into Mother Brook at all during their period of\n\nownership of the property. The Charter School Parties emphasize\n\n\n - 61 -\n\fthat the evidence of the amount of PCBs traceable to that basin\n\nwas simply too miniscule to support any such finding. Thus, the\n\nCharter School Parties contend that they fall within the exception\n\nfound in § 5(b). That exception provides that parties whose\n\nliability under § 5 is premised on § 5(a)(1) are liable only to\n\nthe Commonwealth -- and thus not to other parties in a § 4\n\nreimbursement suit -- if the release occurred prior to their period\n\nof ownership and they did not \"cause or contribute\" to the release\n\nor threat of release in question. Id. § 5(b).\n\n But, even if we accept that point about the drain basin\n\nevidence, there is still the testimony of an expert for Thomas &\n\nBetts, Dr. David Langseth. He testified that the PCBs lurking in\n\nthe Charter School Parties' soil were carried into Mother Brook by\n\nsurface runoff and thus that there was a release of PCBs into\n\nMother Brook from the Charter School Parties' property during their\n\nperiod of ownership of it.\n\n The Charter School Parties do attempt to address this\n\ntestimony. They argue that Langseth testified that any PCBs on\n\ntheir soil were \"at depth\" -- i.e., located only very deep in the\n\nsoil -- and thus could not be mobilized by surface runoff or\n\nerosion.\n\n But, Langseth also testified that there were PCBs at the\n\nsurface level. Indeed, the jury heard testimony and saw evidence\n\n\n\n\n - 62 -\n\fof significant concentrations of PCBs at the surface level of the\n\nCharter School Parties' property as late as October of 2009.\n\n Thus, the jury could reasonably find that there were\n\nhigh concentrations of PCBs in the topsoil on the property during\n\nthe relevant period. Such a finding would be significant.\n\nLangseth testified that surface runoff carries soil and PCB\n\nparticles with it, and that, in consequence of the slope of the\n\nproperty, all rainfall -- and thus all surface runoff from the\n\nproperty -- would end up in Mother Brook.\n\n The Charter School Parties further argue in response\n\nthat Langseth's testimony is too \"speculative.\" They contend that\n\nhis testimony focused primarily on features of the property -- such\n\nas its slope and the extent of paved surfaces -- that long predated\n\ntheir ownership of that property. And, the Charter School Parties\n\ncontend, there were significant changes to the property, including\n\nthe addition of paved surfaces that would prevent runoff and the\n\nconstruction of a barrier to prevent erosion from the property\n\ninto Mother Brook, in the years leading up to the Charter School\n\nParties' purchase.\n\n The Charter School Parties overlook the fact, however,\n\nthat the jury received evidence that showed that not all of the\n\nproperty was paved during the time that they owned it and that the\n\nportions of the property that were not paved included portions\n\nwith the highest concentration of PCBs, which were located closest\n\n\n - 63 -\n\fto Mother Brook. Moreover, Dr. Mark Tompkins, an expert for\n\nanother defendant, testified that while the protective barrier\n\nalong the streambed would have helped prevent erosion of\n\ncontaminated soil into Mother Brook, there were \"unprotected\n\narea[s]\" on the property from which PCBs \"could be mobilized and\n\ntransported over the [barrier].\"\n\n Thus, we agree with Thomas & Betts that a reasonable\n\njury could have found, based on the evidence, that there were high\n\nlevels of PCBs in the surface-level soil at the time the Charter\n\nSchool Parties owned the property, that some portions of the\n\ncontaminated areas of that property were unpaved at that time, and\n\nthat all runoff from the property goes to Mother Brook. We thus\n\nagree with Thomas & Betts that a jury supportably could have found\n\nthat the Charter School Parties were liable under § 5(a)(1) based\n\non a release or threat of release of PCBs that occurred after they\n\nacquired the property. And, therefore, the jury was entitled to\n\nfind, under § 4, that the Charter School Parties were \"liable to\"\n\nThomas & Betts for an equitable share of its response costs.\n\n Separately, the jury also could have based that same\n\nfinding on still other evidence in the record. Specifically, the\n\njury could have found that the Charter School Parties' construction\n\nprojects on the property led to soil disruption and thus a release\n\nof PCBs into Mother Brook. In particular, the jury received\n\nevidence that showed both that there was significant construction\n\n\n - 64 -\n\fon the Charter School Parties' property near Mother Brook after\n\nthe Charter School Parties acquired the property and that the\n\nconstruction had to be halted because of the presence of PCBs. In\n\nfact, the record contains evidence of correspondence between the\n\nCharter School Parties' project management company and\n\nconstruction company, in which the construction company wrote\n\n\"[o]n September 2, 2009 we received notice from your office to\n\nhalt the work on the north side . . . of the [Charter School] site\n\ndue to the detection of PCB[s].\" Therefore, a jury could\n\nsupportably find that there were construction activities on the\n\nproperty that led to a release of PCBs during the Charter School\n\nParties' period of ownership and, thus, that the Charter School\n\nParties must reimburse Thomas & Betts for response costs. See\n\nMass. Gen. Laws ch. 21E, §§ 4, 5(a)(1).\n\n In their reply brief, the Charter School Parties make\n\none additional argument about why, under § 4, they cannot be found\n\n\"liable to\" Thomas & Betts for the response costs that they\n\nincurred. They contend that any release or threat of release of\n\nPCBs that a jury could supportably have found to have occurred on\n\nthe property during the time that the Charter School Parties owned\n\nit occurred after the MassDEP directed Thomas & Betts to remediate\n\nMother Brook (albeit before Thomas & Betts completed the\n\nremediation). And, the Charter School Parties contend, any release\n\n\n\n\n - 65 -\n\for threat of release at that point is not one that may make them\n\nliable to reimburse Thomas & Betts for its response costs.\n\n The Charter School Parties rely for this argument on\n\n§ 5(b) of Chapter 21E. That provision states, in pertinent part,\n\nthat a current owner \"who did not own or operate the site at the\n\ntime of the release . . . in question and did not cause or\n\ncontribute to such release\" may not be liable under Chapter 21E.\n\nMass. Gen. Laws ch. 21E, § 5(b). The Charter School Parties\n\ncontend that \"the release . . . in question\" is necessarily the\n\nrelease of PCBs that the MassDEP directed Thomas & Betts to\n\nremediate, as opposed to the \"release\" from or at the Charter\n\nSchool Parties' site to which the immediately preceding section\n\nrefers. See id. § 5(a). And, the Charter School Parties contend,\n\nbecause the MassDEP directed that remediation before they\n\npurchased the south bank property in 2008, they \"did not own or\n\noperate the site at the time of the release . . . in question\" and\n\nare not \"liable to\" a \"person,\" such as Thomas & Betts, seeking\n\nreimbursement under § 4 of Chapter 21E. Id. § 5(b).\n\n The Charter School Parties did not, however, make this\n\nargument either to the District Court or in its opening brief to\n\nus. And, \"[w]e have held, with a regularity bordering on the\n\nmonotonous, that issues advanced for the first time in an\n\nappellant's reply brief are deemed waived.\" Waste Mgmt. Holdings,\n\nInc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000). That rule,\n\n\n - 66 -\n\fmoreover, is especially applicable here. The Charter School\n\nParties appeared to take a contrary position in their opening brief\n\nabout the import of the phrase \"release . . . in question\" than\n\nthe one that they advance for the first time in their reply brief.\n\nIn their opening brief, they conceded that \"the jury could have\n\nfound [them] liable if there was evidence that [they] 'caused' or\n\n'contributed to' a release of PCBs to the banks or streambed of\n\nMother Brook after [they] bought the property.\" (emphasis added).\n\n B.\n\n In their appeal from the District Court's denial of their\n\nmotion for a judgment as a matter of law, the Charter School\n\nParties also contend the following. They argue that, even if the\n\nevidence sufficed to support a finding that they were \"liable\" for\n\na release or threat of release of PCBs under § 5 of Chapter 21E,\n\nthe jury's verdict that, under § 4, they were \"liable to\" Thomas\n\n& Betts for 1 percent of the response costs that it had incurred\n\nis not supportable. They contend that the evidence simply did not\n\nsuffice to support the jury's determination that there was enough\n\nof a \"causal link,\" John Beaudette, 644 N.E.2d at 220 (quoting\n\nProvidence & Worcester R.R. v. Chevron U.S.A., Inc., 622 N.E.2d\n\n262, 264 (Mass. 1993)), between a release or threat of release\n\nfrom their property after they purchased it and the response costs\n\nincurred by Thomas & Betts to justify an allocation under § 4 of\n\neven 1 percent of those response costs to them. Id. at 220-21.\n\n\n - 67 -\n\fThus, they contend, Thomas & Betts was not entitled to have them\n\nreimburse it for that share (small though it is) of those costs.\n\nId. at 220-21; see Acushnet 191 F.3d at 78. Accordingly, the\n\nCharter School Parties contend that they are entitled to judgment\n\nas a matter of law for this reason, too.\n\n In support of this aspect of the Charter School Parties'\n\nchallenge, the Charter School Parties first argue that they should\n\nnot be liable to Thomas & Betts for any share of response costs\n\nunder § 4 incurred by Thomas & Betts as a result of PCBs released\n\nfrom their property prior to the Charter School Parties possession\n\nof the property. But, this argument is beside the point, given\n\nour conclusion that the jury could supportably find that there\n\nwere releases from that property following the point in time at\n\nwhich the Charter School Parties owned the property.\n\n The Charter School Parties also argue that the release\n\ncaused by the drain pipe is too minimal to justify allocation of\n\nany response costs to the Charter School Parties, let alone\n\n1 percent of them. But, as we have already explained, a jury could\n\nsupportably find on the basis of other evidence the Charter School\n\nParties liable to Thomas & Betts under § 4 of Chapter 21E for an\n\nequitable share of its response costs because of a release or\n\nthreat of release from their property during the time that they\n\nowned or operated it. And the Charter School Parties make no\n\n\n\n\n - 68 -\n\fargument that an allocation of 1 percent of the response costs, if\n\nbased on that evidence, cannot be sustained.\n\n V.\n\n We next turn to the challenge that Thomas & Betts brings\n\nto the portion of the District Court's judgment that awarded\n\nprejudgment interest to New Albertson's on the amount that Thomas\n\n& Betts was found liable to pay it pursuant to Chapter 21E. New\n\nAlbertson's moved, over Thomas & Betts's objection, to amend the\n\ninitial judgment on the verdict to include the roughly $2.9 million\n\nthat it had already paid pursuant to the joint remediation\n\nagreement and for an award of prejudgment interest on that amount\n\npursuant to § 6B or § 6H of Chapter 231. The District Court then\n\ngranted the motion and awarded prejudgment interest to New\n\nAlbertson's on the amount that included the roughly $2.9 million.\n\n\"We review an award of prejudgment interest for abuse of\n\ndiscretion, . . . but legal issues relating to the prejudgment\n\ninterest award are reviewed de novo.\" Analysis Grp., Inc. v.\n\nCentral Florida Invs., Inc., 629 F.3d 18, 24 (1st Cir. 2010).\n\n Thomas & Betts contends that it was legal error to award\n\nprejudgment interest \"based on an arbitrary interpretation of the\n\nprovisions of the Joint Response Agreement.\" Specifically, Thomas\n\n& Betts argues that \"[w]hile the Joint Response Agreement reserves\n\neach party's claims to 'recover its costs,'\" including the\n\nreallocation of the roughly $2.9 million dollars previously paid\n\n\n - 69 -\n\fby New Albertson's to Thomas & Betts, the terms of the Joint\n\nResponse Agreement \"d[id] not provide for interest on the recovered\n\namount.\"\n\n But, the District Court did not base the award of\n\nprejudgment interest on the terms of the agreement. The District\n\nCourt entered judgment \"in favor of [New Albertson's] against\n\n[Thomas & Betts] in the amount of $3,517,855.61, computed as the\n\nsum of $593,548.73 awarded by the jury's verdict plus $2,924,306.88\n\nthat all parties have stipulated [New Albertson's] paid [Thomas &\n\nBetts] on an interim basis under those parties' November 8, 2007\n\n'Mother Brook Stream Bank Remediation / Stabilization Agreement'\n\n. . . .\" The District Court then awarded prejudgment interest on\n\nthe entire amount pursuant to either § 6B or § 6H of Chapter 231,\n\nas each makes clear that prejudgment interest \"shall be added\" in\n\ncertain kinds of cases. Mass. Gen. Laws ch. 231, §§ 6B, 6H.\n\n Notably, Thomas & Betts does not dispute that funds\n\nawarded in a judgment based on § 4 of Chapter 21E for \"response\n\ncosts\" qualify as funds for which prejudgment interest \"shall be\n\nadded\" under § 6B or § 6H of Chapter 231. Thus, we fail to see\n\nhow, in light of the text of the District Court's judgment, the\n\nroughly $2.9 million awarded to New Albertson's is not an amount\n\nthat is subject to these statutory provisions regarding the adding\n\non of prejudgment interest.\n\n\n\n\n - 70 -\n\f Consistent with this conclusion, we note that the very\n\nterms of the stipulation that the District Court references as the\n\nbasis for including the roughly $2.9 million in the judgment is\n\nthe fact that \"New Albertson[']s reimbursed Thomas & Betts\n\n$2,924,306.88 for response costs incurred in the remediation of\n\nthe banks of Middle Mother Brook.\" We note, too, that Thomas &\n\nBetts does not develop any argument that, under the joint\n\nremediation agreement, even if prejudgment interest must be added\n\non to the roughly $2.9 million referenced in the judgment pursuant\n\nto § 6B or § 6H, New Albertson's somehow contractually relinquished\n\nits right to obtain those funds.\n\n For these reasons, we reject the contention by Thomas &\n\nBetts that the District Court's award of prejudgment interest on\n\nthe response costs awarded in the judgment constitutes legal error.\n\nWe thus turn to the only remaining issues, which concern the\n\nDistrict Court's judgment awarding attorney's fees under Chapter\n\n21E.\n\n VI.\n\n Section 15 of Chapter 21E allows an award of \"costs,\n\nincluding reasonable attorney and expert witness fees, to any party\n\nwho advances the purposes of this chapter.\" Mass. Gen. Laws ch.\n\n21E, § 15.17 New Albertson's requested attorney's fees pursuant\n\n\n 17 The provision provides in full:\n\n\n\n - 71 -\n\fto this section. Over Thomas & Betts's objection, the District\n\nCourt entered a judgment in favor of New Albertson's and against\n\nThomas & Betts in the amount of $1,747,188.59 for costs, including\n\nreasonable attorney and expert witness fees.\n\n Both parties have appealed that ruling. The challenge\n\nto the award of attorney's fees raises a question of Massachusetts\n\nlaw. Peckham v. Cont’l Cas. Ins. Co., 895 F.2d 830, 841 (1st Cir.\n\n1990). We review the District Court's award determination \"only\n\nfor a mistake of law or abuse of discretion.\" Heien v. Archstone,\n\n837 F.3d 97, 100 (1st Cir. 2016) (reviewing the award of attorney's\n\nfees in a diversity case applying Massachusetts law).\n\n A.\n\n Thomas & Betts challenges the attorney's fees award to\n\nNew Albertson's on the ground that New Albertson's is not entitled\n\nto attorney's fees under § 15 of Chapter 21E because it is not a\n\nparty \"who advance[d] the purposes of this chapter.\" Mass. Gen.\n\n\n\n\n In any suit by Massachusetts residents to\n enforce the requirements of this chapter, or\n to abate a hazard related to oil or hazardous\n materials in the environment, the court may\n award costs, including reasonable attorney and\n expert witness fees, to any party other than\n the commonwealth who advances the purposes of\n this chapter.\n\nMass. Gen. Laws ch. 21E, § 15.\n\n\n\n - 72 -\n\fLaws ch. 21E, § 15.18 Thomas & Betts asserts that the SJC's\n\nprecedents establish a \"two part test\" under § 15 to determine\n\nwhether a party advanced the purposes of Chapter 21E.\n\nSpecifically, Thomas & Betts contends, \"even if the equitable\n\nallocation [to the party seeking to recover attorney's fees] is\n\nzero, [that party] must also be found not to have caused or\n\ncontributed to a release in order to recover fees.\" Thomas & Betts\n\ntherefore argues that New Albertson's did not advance the purposes\n\nof Chapter 21E because the jury found New Albertson's equitably\n\nresponsible for 25 percent of its own response costs.\n\n But, in the SJC's most recent decision on § 15, Bank,\n\nthe SJC expressly stated that \"[a]ll that [Mass Gen. Laws ch.]\n\n21E, § 15, requires is that a plaintiff has sought reimbursement\n\nunder [Mass Gen. Laws ch.] 21E, § 4, and has not contributed to\n\nthe hazardous waste release.\" 888 N.E.2d at 921. And, while\n\nThomas & Betts is correct that the plaintiffs who won an attorney's\n\nfees award in Bank were not found responsible for any equitable\n\nshare of the response costs incurred in the cleanup, Bank did not\n\n\n 18 Thomas & Betts contends in the alternative that, even if\nNew Albertson's may recover fees under Chapter 21E, the liability\nfor the fees should have been allocated severally among Thomas &\nBetts and the other two parties found \"liable to\" Thomas & Betts\nunder § 4 of Chapter 21E for portions of its response costs (albeit\nnot New Albertson's) -- that is, Alfa Laval and the Charter School\nParties. As the District Court correctly pointed out, however,\nthe problem with this argument is that neither Alfa Laval nor the\nCharter School Parties were found \"liable to\" New Albertson's in\nthe action that New Albertson's brought under § 4 of Chapter 21E.\n\n\n - 73 -\n\frely on that fact to determine which parties could recover the\n\nfees. See id. at 905.\n\n Moreover, Bank relied on Martignetti. The SJC explained\n\nthere that \"a party which has not contributed to, or caused, the\n\nrelease of hazardous materials necessitating its response actions\n\ncan 'advance[] the purposes' of [Mass. Gen. Laws ch.] 21E by\n\nbringing a § 4 claim, and therefore only such a party may be\n\nawarded attorney's fees and costs under § 15.\" Martignetti, 680\n\nN.E.2d at 1148 (alteration in original); see also id. at 1148\n\nn.42.19 Notably, Martignetti did not state that a party was\n\nprecluded from obtaining fees if it incurred response costs of its\n\nown that were not fully reimbursed.\n\n We note as well that Martignetti drew upon Sanitoy v.\n\nIlco Unican Corp., 602 N.E.2d 193, 197 (Mass. 1992), which involved\n\nfacts quite similar to those presented by this appeal. There, the\n\nSJC allowed a plaintiff to recover attorney's fees under § 15 of\n\nChapter 21E, even though the jury did not award the plaintiff 100\n\npercent of its response costs for which it sought reimbursement\n\nunder § 4. The jury had found the defendant \"wholly responsible\n\n\n\n 19\n We need not address whether a \"person\" who did not \"cause\nor contribute\" to the release within the meaning of § 5(b) of\nChapter 21E, but nevertheless owned the property at the time of\nthe release and thus is \"liable to\" both the Commonwealth and a\n\"person\" seeking reimbursement for response costs under § 4, see\nMass. Gen. Laws ch. 21E, § 5(b), would be considered to have\n\"advanced the purposes\" of Chapter 21E. Id. § 15.\n\n\n - 74 -\n\ffor the contamination on the portion of the site it had previously\n\nowned,\" and the jury awarded the plaintiff its response costs\n\nincurred in cleaning up that portion of the site. Martignetti,\n\n680 N.E.2d at 1147. But, the plaintiff had incurred additional\n\nresponse costs for cleaning up other portions of the site for which\n\nit was not reimbursed (and for which the record did not indicate\n\nthat it was causally responsible for the contamination). Id. The\n\nSJC nevertheless held that the plaintiff was entitled to \"the full\n\namount\" of its attorney's fees. Sanitoy, 602 N.E.2d at 197.20\n\n Thomas & Betts does point to a passage in Martignetti in\n\norder to support its position. In that passage, the SJC, upon\n\nvacating a Chapter 21E verdict and remanding the case, concluded\n\nthat \"if, in a new trial, the plaintiffs are found to be liable\n\nfor an equitable share of the response costs, they will not be\n\nentitled to an award of attorney's fees and costs under § 15.\"\n\n680 N.E.2d at 1147. Thomas & Betts asserts that this passage shows\n\nthe following: Any plaintiff that does not fully recover its\n\nresponse costs -- and thus that must pay for at least some of them\n\nin a Chapter 21E reimbursement action based on § 4 -- may not\n\n\n\n 20Thomas & Betts does point out that the plaintiff in Sanitoy\nwas not found liable for an equitable share of response costs under\n§ 4 of Chapter 21E with respect to the defendant's portion of the\ncontaminated site for which it was awarded response costs and\nattorney's fees. See 602 N.E.2d at 197. However, Thomas & Betts\ndoes not explain how that fact bore on the SJC's fees analysis,\nnor do we see how it did.\n\n\n - 75 -\n\frecover attorney's fees, even if the jury finds that the plaintiff\n\ndid not cause or contribute to a release of hazardous material.\n\n But, as we have already explained, under Martignetti,\n\nand in consequence of § 5(b) of Chapter 21E, a \"person\" may be\n\n\"liable to the Commonwealth\" by virtue of § 5(a)(1) but not \"liable\n\nto\" others under § 4 of Chapter 21E. That is only the case,\n\nthough, if that \"person\" neither owned the property at the time of\n\nthe release (or threat of release) nor \"caused or contributed\" to\n\nthe release (or threat of release) in question. Mass. Gen. Laws\n\nch. 21E, § 5(b). And so the phrase in Martignetti \"liable for an\n\nequitable share,\" 680 N.E.2d at 1147 (emphasis added) -- which\n\ncomes straight from § 4 itself -- is, in context, best read as\n\nfollows. The phrase is merely a reference to whether, for purposes\n\nof § 5(b), the plaintiffs there had \"caused or contributed\" to a\n\nrelease of hazardous material, such that they were \"liable\" under\n\n§ 4 of Chapter 21E to other parties to reimburse them for their\n\nresponse costs.\n\n This understanding is further bolstered by another\n\nportion of Martignetti. There, the SJC explained that only a\n\nplaintiff that \"has not contributed to, or caused, the release of\n\nhazardous materials necessitating its response actions can\n\n'advance[] the purposes' of [Mass. Gen. Laws ch.] 21E by bringing\n\na § 4 claim, and therefore only such a party may be awarded\n\n\n\n\n - 76 -\n\fattorney's fees and costs under § 15.\" 680 N.E.2d at 1148\n\n(alteration in original).\n\n Thus, we conclude that New Albertson's was entitled to\n\nattorney's fees from Thomas & Betts because New Albertson's \"has\n\nsought reimbursement under [Mass. Gen. Laws ch.] 21E, § 4, and has\n\nnot contributed to the hazardous waste release.\" Bank, 888 N.E.2d\n\nat 921. Accordingly, we move on to the challenge that New\n\nAlbertson's makes to the District Court judgment awarding it costs,\n\nincluding attorney's fees.\n\n B.\n\n The sole challenge that New Albertson's makes to the\n\nfees award concerns its amount. In order to understand the nature\n\nof its challenge, some additional background on the work done by\n\nits attorneys is helpful.\n\n The law firm that represented New Albertson's below,\n\nSugarman, Rogers, Barshak & Cohen, also represented three other\n\nparties related to the supermarket at the north bank property.\n\nThe District Court concluded that the supermarket parties were not\n\n\"so similarly situated that this case falls into the 'multiple\n\ninterrelated claims' category.\" Thus, the District Court\n\nconcluded that New Albertson's could only recover fees for the\n\nwork its counsel did for its benefit and not for the benefit of\n\nthe other supermarket parties.\n\n\n\n\n - 77 -\n\f New Albertson's identified 89 out of 5,469 billing\n\nentries that did not involve work for New Albertson's. But, the\n\nDistrict Court found that some other billing entries corresponded\n\nto work performed \"not solely for New Albertsons's benefit (and in\n\nsome cases, not for its benefit at all).\" Moreover, the District\n\nCourt found, New Albertson's had not provided a \"meaningful way of\n\ndifferentiating those entries to which New Albertson[']s has\n\nalready applied a discount from various others on which it seeks\n\nto recoup 100 percent\" -- which the District Court attributed to\n\nSugarman Rogers's \"purposeful\" \"failure to keep more detailed\n\nrecords.\" Accordingly, the District Court adopted a \"keyword\n\nsearch methodology,\" which was proposed in an affidavit by Thomas\n\n& Betts's attorney, Howard Merten, so that the District Court could\n\nidentify billing entries that corresponded to work done for\n\nmultiple parties.\n\n The District Court then discounted the fees awarded\n\nbased on these entries to reflect the fact that the work was not\n\ndone solely on behalf of New Albertson's. As for how much to\n\ndiscount those entries, the District Court found the method\n\nproposed by New Albertson's involving \"a range of discount\n\npercentages\" based on an \"individualized\" assessment of the\n\nvarious billing entries to be \"so opaque as to preclude effective\n\nreview.\" The District Court therefore adopted Thomas & Betts's\n\nproposed pro-rata discount of 75 percent.\n\n\n - 78 -\n\f The parties next submitted motions for the entry of\n\njudgment for fees based on competing keyword lists. The District\n\nCourt then issued a written decision determining which proposed\n\nkeywords would be accepted or rejected, with an explanation for\n\neach proposed keyword.\n\n New Albertson's asserts that the District Court erred in\n\nseveral ways. First, New Albertson's contends that the District\n\nCourt erred by not addressing whether the work attributable to the\n\nmultiple supermarket parties was nevertheless compensable because\n\nit would have been appropriate for that work to have been done for\n\nNew Albertson's alone. Second, New Albertson's alleges that the\n\n75 percent discount rate was arbitrary insofar as this rate does\n\nnot correspond to the relative litigation interests and risk of\n\nthe four supermarket parties. Finally, New Albertson's contends\n\nthat the keywords used to identify entries for discounting (such\n\nas \"discovery\" and \"expert\") were overbroad.21\n\n As the party seeking the award of attorney's fees, New\n\nAlbertson's \"bear[s] the burden of producing the necessary\n\nevidence\" for it. Bank, 888 N.E.2d at 920. We review for abuse\n\nof discretion. See Sanitoy, 602 N.E.2d at 197. We see none.\n\n\n\n\n 21New Albertson's also contends that the District Court erred\nby effectively requiring \"separate billing accounts for each of\nthe four Supermarket Parties.\" However, the record does not show\nthat the District Court required such.\n\n\n - 79 -\n\f We start with New Albertson's argument that the District\n\nCourt failed to address whether the billed work was appropriate to\n\nhave been done for New Albertson's alone. But, the District Court\n\ndid address -- and reject -- that argument. The District Court\n\nexplained in its September 29, 2016 order that, \"[a]s is clear\n\nfrom New Albertson[']s's decision to remove certain billing\n\nentries from its fee motion and to reduce others by some\n\npercentage, not all of the work performed by Sugarman Rogers in\n\nconnection with this case served New Albertson[']s exclusively or\n\nat all.\" Yet, the District Court went on to explain, \"the Court\n\nhas no meaningful way of differentiating those entries to which\n\nNew Albertson[']s has already applied a discount from various\n\nothers on which it seeks to recoup 100 percent.\" New Albertson's\n\ndoes not explain how such a determination represented an abuse of\n\nthe District Court's considerable discretion to determine fee\n\nawards.\n\n In addition, the District Court explained that it was\n\n\"not convinced that each [supermarket] party is so similarly\n\nsituated that this case falls into the 'multiple interrelated\n\nclaims' category.\" New Albertson's has not persuasively\n\nexplained, however, why the District Court was wrong on that score,\n\nespecially given the distinct facts and theories of liability that\n\ncorresponded to the various supermarket parties. For example, two\n\nof the supermarket parties were sued as prior owners of the\n\n\n - 80 -\n\fsupermarket property during the 1970s through 1990s, whereas New\n\nAlbertson's stood in the shoes of a current owner and operator as\n\nof the 2000s.\n\n Finally, as for the arguments that New Albertson's makes\n\nregarding the discount rate and keyword methodology, the District\n\nCourt explained that it adopted these methods because it determined\n\nthat New Albertson's had not put forth records that allowed for\n\nbetter alternatives. And, we note, the District Court undertook\n\nan exhaustive evaluation of each keyword proposed by both parties\n\nin its second written decision on attorney's fees on March 10,\n\n2017. Accordingly, we conclude that New Albertson's has not shown\n\nthat the District Court's fees award was an abuse of discretion.22\n\n VII.\n\n The contamination of Mother Brook precipitated an\n\nextensive cleanup operation. So, too, did the litigation that\n\nfollowed. We affirm the District Court's judgment in Nos. 16-\n\n1133, 16-1134, 16-1189, 17-1360, and 17-1361. And we dismiss No.\n\n16-1204 as moot.\n\n\n\n\n 22\n New Albertson's also argues that it is entitled under § 15\nto fees and costs related to this appeal. We deny its request\nwithout prejudice to its filing an attorney's fee application in\naccordance with our normal procedure set forth in Local Rule\n39.1(b) of the First Circuit Court of Appeals.\n\n\n - 81 -\n[END_CASE]",
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4,589,039 | United States v. Vazquez-Mendez | 2019-02-08 | 18-1107P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Howard, Chief Judge Boudin and Lynch, Circuit Judges.", "parties": "", "opinions": [{"author": "BOUDIN, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1107\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n ADRIÁN VÁZQUEZ-MÉNDEZ,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Juan M. Pérez-Giménez, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge\n Boudin and Lynch, Circuit Judges.\n\n\n Eric Alexander Vos, Federal Public Defender, District of\nPuerto Rico, Vivianne M. Marrero, Assistant Federal Public\nDefender, Supervisor, Appeals Section, and Ivan Santos-Castaldo,\nResearch and Writing Specialist, on brief for appellant.\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\nAppellate Division, and Julia M. Meconiates, Assistant United\nStates Attorney, on brief for appellee.\n\n\n February 8, 2019\n\f BOUDIN, Circuit Judge. Adrián Vázquez-Méndez (\"Vázquez\")\n\npled guilty in federal district court in Puerto Rico in 2001 to\n\none count of conspiracy to distribute cocaine, 21 U.S.C. § 846,\n\nand was sentenced to 168 months in prison followed by five years\n\nof supervised release. After serving more than eleven years in\n\nprison, Vázquez began supervised release on December 28, 2012.\n\n Vázquez's period of supervised release--accompanied by\n\nthe common requirements that he refrain from unlawfully using\n\ncontrolled substances, report any changes in address, and\n\nregularly check in with his probation officer--passed without\n\nknown incident until nearly the end. But in 2017, the probation\n\nofficer reported several violations, including three positive drug\n\ntests for marijuana and a failure to inform his probation officer\n\nthat he was living at a new location.\n\n Vázquez was also arrested on July 25, 2017, after his\n\ngirlfriend called the police to report a domestic dispute. Police\n\nalso questioned him about a domestic-violence incident on August\n\n30, 2017. Neither incident resulted in criminal charges but a\n\nrestraining order was placed against him after the second incident,\n\npending a later hearing. Vázquez also failed to timely report the\n\nincidents to his probation officer as required by his supervised\n\nrelease conditions.\n\n He also missed a scheduled drug-treatment program and a\n\ndrug-screening appointment. In each instance Vázquez claimed he\n\n - 2 -\n\fwas at the hospital, first to attend to a wrist injury and later\n\nbecause his girlfriend was experiencing complications with her\n\npregnancy; in at least one case the hospital records showed that\n\nhis time there did not conflict with his scheduled treatment\n\nappointment.\n\n Eventually the government filed a motion to revoke\n\nVázquez's supervised release. Vázquez admitted that he had\n\nviolated the terms of his supervised release and declined an\n\nevidentiary hearing. The parties jointly recommended a sentence\n\nof time served (forty-two days) with six months of supervised\n\nrelease, including three months of home detention with electronic\n\nmonitoring.\n\n The applicable guidelines range was three to nine\n\nmonths, U.S.S.G. § 7B1.4(a), and the statutory maximum for a\n\nrevocation of supervised release arising out of a conviction for\n\na Class A felony--here, Vázquez's original conviction for\n\nconspiracy to distribute cocaine--was five years, 18 U.S.C.\n\n§ 3583(e)(3).\n\n The district judge imposed an upward variance,\n\nsentencing Vázquez to two years' imprisonment plus two years of\n\nsupervised release. The district court described the various\n\nviolations, set forth above, and concluded:\n\n Based on the nature and circumstances of the violations\n and characteristics of Mr. Vazquez, the Court will\n impose a sentence that reflects the seriousness of the\n\n - 3 -\n\f violations, promote respect for the law and compliance\n with the Court's orders, provide just punishment,\n adequate deterrence, and protect our community from\n further non-compliance behavior by Mr. Vazquez-Mendez.\n This may assist Mr. Vazquez-Mendez to work on his\n rehabilitation process and his reintegration into the\n community. Mr. Vazquez will be placed in a controlled\n environment where he will have the space to think,\n reflect and establish new goals for himself, to continue\n working on his rehabilitation plan once he is released\n from prison.\n\n On the spot Vázquez's counsel objected to the sentence\n\nas substantively unreasonable and further objected to the judge's\n\nmention of rehabilitation, arguing that lengthening a criminal\n\nsentence to promote rehabilitation was impermissible. The court\n\nrejected the objection, adding that \"two times he was very\n\naggressive with his consensual partner to the point where she had\n\nto submit a complaint against him.\"\n\n On appeal Vázquez argues that the sentence was\n\nunreasonable and specifically that the judge erred in citing\n\nrehabilitation needs and unproven domestic-violence allegations,\n\nand that the sentence was substantively unreasonable. Whether all\n\nthree objections were fully preserved could be debated, but the\n\ntwo specific claimed errors are patent and here presumptively\n\nprejudicial.\n\n Under the Sentencing Reform Act a court may not impose\n\nor lengthen a prison sentence in order to promote a defendant's\n\nrehabilitation or to enable him to complete in prison a\n\nrehabilitative program. Tapia v. United States, 564 U.S. 319, 335\n\n - 4 -\n\f(2011). The rule applies to resentencing after a revocation of\n\nsupervised release. United States v. Molignaro, 649 F.3d 1, 5\n\n(1st Cir. 2011).\n\n Cases subsequent to Tapia hold that where a general\n\ndesire to rehabilitate the defendant is thrown into a blender with\n\nmyriad other factors at sentencing, there is not necessarily\n\nreversible error. United States v. Del Valle-Rodríguez, 761 F.3d\n\n171, 174-75 (1st Cir. 2014). Reversal follows only where \"the\n\nrecord indicates that rehabilitative concerns were the driving\n\nforce behind, or a dominant factor in, the length of a sentence.\"\n\nId. at 175.\n\n But here the district court concluded its sentence by\n\nsaying that it \"may assist Mr. Vazquez-Mendez to work on his\n\nrehabilitation process and his reintegration into the community,\"\n\nand that time in prison would give him \"the space to think, reflect\n\nand establish new goals for himself, to continue working on his\n\nrehabilitation plan once he is released from prison.\" When defense\n\ncounsel objected, the judge ended discussion: \"I think that the\n\nbest way to try to straighten him up again is by imposing two years\n\nof imprisonment.\"\n\n The district court's statements show that it did or\n\nlikely did rely on rehabilitation in fixing the sentence in a way\n\nthat is at odds with the statute as this circuit has read Tapia.\n\n\n\n - 5 -\n\fThe defense objection removes any need to consider whether the\n\njudge's statements alone might amount to plain error.\n\n Whether the district court relied on the unproven\n\ndomestic-violence allegations as a basis for its upward variant\n\nsentence is doubtful, for the reference came after the sentence\n\nhad been set, but on remand the district will know that charges\n\nwithout proof are not to be considered. United States v. Marrero-\n\nPérez, No. 17-136, 2019 WL 324988 (1st Cir. Jan. 25, 2019).\n\n The district court was well within its authority to\n\nconsider an upward adjustment to the guidelines sentence.\n\nVázquez's transgressions were multiple and that they happened near\n\nthe end of the supervised release term is hardly reassuring. The\n\ngovernment's agreement to a time-served sentence may suggest\n\nmerely that new felonies are properly its main priority.\n\n This circuit once regularly remanded cases like this one\n\nto a different judge, but this occurs now only in very unusual\n\ncases, United States v. Bryant, 643 F.3d 28, 35 (1st Cir. 2011),\n\nand rightly so, for a new judge every time is wasteful; and the\n\nconduct of judges in remanded matters bears out the faith that\n\ncitizens still retain in their judiciary.\n\n The sentence is vacated, and the matter remanded for\n\nresentencing in accordance with this decision.\n\n It is so ordered.\n\n\n\n - 6 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366292/", "author_raw": "BOUDIN, Circuit Judge"}]} | HOWARD | BOUDIN | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589039/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: United States v. Vazquez-Mendez\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1107\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n ADRIÁN VÁZQUEZ-MÉNDEZ,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Juan M. Pérez-Giménez, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge\n Boudin and Lynch, Circuit Judges.\n\n\n Eric Alexander Vos, Federal Public Defender, District of\nPuerto Rico, Vivianne M. Marrero, Assistant Federal Public\nDefender, Supervisor, Appeals Section, and Ivan Santos-Castaldo,\nResearch and Writing Specialist, on brief for appellant.\n Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana\nE. Bauzá-Almonte, Assistant United States Attorney, Chief,\nAppellate Division, and Julia M. Meconiates, Assistant United\nStates Attorney, on brief for appellee.\n\n\n February 8, 2019\n\f BOUDIN, Circuit Judge. Adrián Vázquez-Méndez (\"Vázquez\")\n\npled guilty in federal district court in Puerto Rico in 2001 to\n\none count of conspiracy to distribute cocaine, 21 U.S.C. § 846,\n\nand was sentenced to 168 months in prison followed by five years\n\nof supervised release. After serving more than eleven years in\n\nprison, Vázquez began supervised release on December 28, 2012.\n\n Vázquez's period of supervised release--accompanied by\n\nthe common requirements that he refrain from unlawfully using\n\ncontrolled substances, report any changes in address, and\n\nregularly check in with his probation officer--passed without\n\nknown incident until nearly the end. But in 2017, the probation\n\nofficer reported several violations, including three positive drug\n\ntests for marijuana and a failure to inform his probation officer\n\nthat he was living at a new location.\n\n Vázquez was also arrested on July 25, 2017, after his\n\ngirlfriend called the police to report a domestic dispute. Police\n\nalso questioned him about a domestic-violence incident on August\n\n30, 2017. Neither incident resulted in criminal charges but a\n\nrestraining order was placed against him after the second incident,\n\npending a later hearing. Vázquez also failed to timely report the\n\nincidents to his probation officer as required by his supervised\n\nrelease conditions.\n\n He also missed a scheduled drug-treatment program and a\n\ndrug-screening appointment. In each instance Vázquez claimed he\n\n - 2 -\n\fwas at the hospital, first to attend to a wrist injury and later\n\nbecause his girlfriend was experiencing complications with her\n\npregnancy; in at least one case the hospital records showed that\n\nhis time there did not conflict with his scheduled treatment\n\nappointment.\n\n Eventually the government filed a motion to revoke\n\nVázquez's supervised release. Vázquez admitted that he had\n\nviolated the terms of his supervised release and declined an\n\nevidentiary hearing. The parties jointly recommended a sentence\n\nof time served (forty-two days) with six months of supervised\n\nrelease, including three months of home detention with electronic\n\nmonitoring.\n\n The applicable guidelines range was three to nine\n\nmonths, U.S.S.G. § 7B1.4(a), and the statutory maximum for a\n\nrevocation of supervised release arising out of a conviction for\n\na Class A felony--here, Vázquez's original conviction for\n\nconspiracy to distribute cocaine--was five years, 18 U.S.C.\n\n§ 3583(e)(3).\n\n The district judge imposed an upward variance,\n\nsentencing Vázquez to two years' imprisonment plus two years of\n\nsupervised release. The district court described the various\n\nviolations, set forth above, and concluded:\n\n Based on the nature and circumstances of the violations\n and characteristics of Mr. Vazquez, the Court will\n impose a sentence that reflects the seriousness of the\n\n - 3 -\n\f violations, promote respect for the law and compliance\n with the Court's orders, provide just punishment,\n adequate deterrence, and protect our community from\n further non-compliance behavior by Mr. Vazquez-Mendez.\n This may assist Mr. Vazquez-Mendez to work on his\n rehabilitation process and his reintegration into the\n community. Mr. Vazquez will be placed in a controlled\n environment where he will have the space to think,\n reflect and establish new goals for himself, to continue\n working on his rehabilitation plan once he is released\n from prison.\n\n On the spot Vázquez's counsel objected to the sentence\n\nas substantively unreasonable and further objected to the judge's\n\nmention of rehabilitation, arguing that lengthening a criminal\n\nsentence to promote rehabilitation was impermissible. The court\n\nrejected the objection, adding that \"two times he was very\n\naggressive with his consensual partner to the point where she had\n\nto submit a complaint against him.\"\n\n On appeal Vázquez argues that the sentence was\n\nunreasonable and specifically that the judge erred in citing\n\nrehabilitation needs and unproven domestic-violence allegations,\n\nand that the sentence was substantively unreasonable. Whether all\n\nthree objections were fully preserved could be debated, but the\n\ntwo specific claimed errors are patent and here presumptively\n\nprejudicial.\n\n Under the Sentencing Reform Act a court may not impose\n\nor lengthen a prison sentence in order to promote a defendant's\n\nrehabilitation or to enable him to complete in prison a\n\nrehabilitative program. Tapia v. United States, 564 U.S. 319, 335\n\n - 4 -\n\f(2011). The rule applies to resentencing after a revocation of\n\nsupervised release. United States v. Molignaro, 649 F.3d 1, 5\n\n(1st Cir. 2011).\n\n Cases subsequent to Tapia hold that where a general\n\ndesire to rehabilitate the defendant is thrown into a blender with\n\nmyriad other factors at sentencing, there is not necessarily\n\nreversible error. United States v. Del Valle-Rodríguez, 761 F.3d\n\n171, 174-75 (1st Cir. 2014). Reversal follows only where \"the\n\nrecord indicates that rehabilitative concerns were the driving\n\nforce behind, or a dominant factor in, the length of a sentence.\"\n\nId. at 175.\n\n But here the district court concluded its sentence by\n\nsaying that it \"may assist Mr. Vazquez-Mendez to work on his\n\nrehabilitation process and his reintegration into the community,\"\n\nand that time in prison would give him \"the space to think, reflect\n\nand establish new goals for himself, to continue working on his\n\nrehabilitation plan once he is released from prison.\" When defense\n\ncounsel objected, the judge ended discussion: \"I think that the\n\nbest way to try to straighten him up again is by imposing two years\n\nof imprisonment.\"\n\n The district court's statements show that it did or\n\nlikely did rely on rehabilitation in fixing the sentence in a way\n\nthat is at odds with the statute as this circuit has read Tapia.\n\n\n\n - 5 -\n\fThe defense objection removes any need to consider whether the\n\njudge's statements alone might amount to plain error.\n\n Whether the district court relied on the unproven\n\ndomestic-violence allegations as a basis for its upward variant\n\nsentence is doubtful, for the reference came after the sentence\n\nhad been set, but on remand the district will know that charges\n\nwithout proof are not to be considered. United States v. Marrero-\n\nPérez, No. 17-136, 2019 WL 324988 (1st Cir. Jan. 25, 2019).\n\n The district court was well within its authority to\n\nconsider an upward adjustment to the guidelines sentence.\n\nVázquez's transgressions were multiple and that they happened near\n\nthe end of the supervised release term is hardly reassuring. The\n\ngovernment's agreement to a time-served sentence may suggest\n\nmerely that new felonies are properly its main priority.\n\n This circuit once regularly remanded cases like this one\n\nto a different judge, but this occurs now only in very unusual\n\ncases, United States v. Bryant, 643 F.3d 28, 35 (1st Cir. 2011),\n\nand rightly so, for a new judge every time is wasteful; and the\n\nconduct of judges in remanded matters bears out the faith that\n\ncitizens still retain in their judiciary.\n\n The sentence is vacated, and the matter remanded for\n\nresentencing in accordance with this decision.\n\n It is so ordered.\n\n\n\n - 6 -\n[END_CASE]",
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4,589,040 | Mark R. THOMPSON; Beth A. Thompson, Plaintiffs, Appellants, v. JPMORGAN CHASE BANK, N.A., Defendant, Appellee. | Thompson v. JPMorgan Chase Bank, N.A. | 2019-02-08 | 18-1559P | U.S. Court of Appeals for the First Circuit | {"judges": "Thompson, Boudin, Kayatta", "parties": "", "opinions": [{"author": "BOUDIN, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1559\n\n MARK R. THOMPSON; BETH A. THOMPSON,\n\n Plaintiffs, Appellants,\n\n v.\n\n JPMORGAN CHASE BANK, N.A.,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Rya W. Zobel, U.S. District Judge]\n\n\n Before\n\n Thompson, Boudin, and Kayatta,\n Circuit Judges.\n\n\n Todd S. Dion on brief for appellants.\n Juan S. Lopez, Jeffrey D. Adams, and Parker Ibrahim & Berg\nLLP on brief for appellee.\n\n\n February 8, 2019\n\f BOUDIN, Circuit Judge. Mark and Beth Thompson sued\n\nJPMorgan Chase Bank (\"Chase\") for breach of contract and violating\n\nthe statutory power of sale Massachusetts affords mortgagees.\n\nMass. Gen. Laws ch. 183, § 21. The Thompsons alleged Chase failed\n\nto comply with the notice requirements in their mortgage before\n\nforeclosing on their property. The district court granted Chase's\n\nmotion to dismiss for failure to state a claim.\n\n On June 13, 2006, the Thompsons granted a mortgage to\n\nWashington Mutual Bank on their house to secure a loan in the\n\namount of $322,500. The mortgage included two paragraphs, both\n\nstandard mortgage provisions in Massachusetts, relevant to this\n\nappeal.\n\n First, paragraph 22 required that prior to accelerating\n\npayment by the Thompsons, Washington Mutual had to provide the\n\nThompsons notice specifying:\n\n (a) the default; (b) the action required to\n cure the default; (c) a date, not less than 30\n days from the date the notice is given to\n Borrower, by which the default must be cured;\n and (d) that failure to cure the default on or\n before the date specified in the notice may\n result in acceleration of the sums secured by\n this Security Instrument and sale of the\n Property.\n\nIn addition, paragraph 22 required Washington Mutual to inform the\n\nThompsons of \"the right to reinstate after acceleration and the\n\nright to bring a court action to assert the non-existence of a\n\ndefault or any other defense of Borrower to acceleration and sale.\"\n\n\n - 2 -\n\f Second, paragraph 19 described the Thompsons' right to\n\nreinstate after acceleration, including the conditions and time\n\nlimitations related to that right.\n\n If Borrower meets certain conditions, Borrower\n shall have the right to have enforcement of\n this Security Instrument discontinued at any\n time prior to the earliest of: (a) five days\n before the sale of the Property pursuant to\n any power of sale contained in this Security\n Instrument; (b) such other period as\n Applicable Law might specify for the\n termination of Borrower’s right to reinstate;\n or (c) entry of judgment enforcing this\n Security Instrument. Those conditions are\n that Borrower: (a) pays Lender all sums which\n then would be due under this Security\n Instrument and the Note as if no acceleration\n had occurred; (b) cures any default of any\n other covenants or agreements; (c) pays all\n expenses incurred in enforcing this Security\n Instrument, including, but not limited to,\n reasonable attorneys’ fees, property\n inspection and valuation fees, and other fees\n incurred for the purpose of protecting\n Lender’s interest in the Property and rights\n under this Security Instrument; and (d) takes\n such action as Lender may reasonably require\n to assure that Lender’s interest in the\n Property and rights under this Security\n Instrument, and Borrower’s obligation to pay\n the sums secured by this Security Instrument,\n shall continue unchanged.\n\n In 2008, after the United States Office of Thrift\n\nSupervision seized Washington Mutual Bank and placed it in\n\nreceivership with the Federal Deposit Insurance Corporation\n\n(\"FDIC\"), FDIC sold the banking subsidiaries to Chase, which became\n\nthe mortgagee on the Thompsons' mortgage.\n\n\n\n\n - 3 -\n\f On August 12, 2016, Chase sent default and acceleration\n\nnotices to the Thompsons. The notices informed the Thompsons that\n\n(1) their mortgage loan was in default; (2) tendering the past-\n\ndue amount of $200,056.60 would cure the default; (3) the default\n\nmust be cured by November 10, 2016; and (4) if the Thompsons failed\n\n\"to cure the default on or before 11/10/2016, Chase [could]\n\naccelerate the maturity of the Loan, . . . declare all sums secured\n\nby the Security Instrument immediately due and payable, commence\n\nforeclosure proceedings, and sell the Property.\"\n\n The notices explained to the Thompsons that they had\n\n\"the right to reinstate after acceleration of the Loan and the\n\nright to bring a court action to assert the nonexistence of a\n\ndefault, or any other defense to acceleration, foreclosure, and\n\nsale.\" The notices also said the Thompsons could \"still avoid\n\nforeclosure by paying the total past-due amount before a\n\nforeclosure sale takes place.\"\n\n On November 15, 2017, after the Thompsons failed to cure\n\nthe default, Chase foreclosed on the property and conducted a\n\nforeclosure sale. On December 15, 2017, the Thompsons filed a\n\ncomplaint in Plymouth County Superior Court, alleging Chase failed\n\nto comply with the paragraph 22 notice requirements prior to\n\nforeclosing on their property. On January 23, 2018, Chase removed\n\nthe suit to the District Court for the District of Massachusetts.\n\n\n\n\n - 4 -\n\f Chase then filed a motion to dismiss for failure to state\n\na claim. After opposition and reply, the district court concluded\n\nthat Chase's default and acceleration notice strictly complied\n\nwith paragraph 22, including advising the Thompsons of their post-\n\nacceleration reinstatement right, and granted Chase's motion to\n\ndismiss. The Thompsons now appeal. They argue that the default\n\nletter failed to comply strictly with paragraph 22 because the\n\nletter did not inform the Thompsons of the conditions and time\n\nlimitations included in their post-acceleration reinstatement\n\nright as described in paragraph 19. They also claim that the\n\nportion of the notice that specified that the Thompsons could\n\n\"still avoid foreclosure by paying the total past-due amount before\n\na foreclosure sale takes place\" was inaccurate and misleading,\n\nthough they do not say that their conduct was in any way altered.\n\n A district court's dismissal for failure to state a claim\n\nis reviewed de novo, Galvin v. U.S. Bank, N.A., 852 F.3d 146, 153\n\n(1st Cir. 2017), taking all factual assertions in a complaint as\n\ntrue and drawing all reasonable inferences in the plaintiffs'\n\nfavor; but this does not include legal conclusions clothed as\n\nfactual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S.\n\n544, 555–56 (2007). To survive a motion to dismiss, the claim\n\nmust be \"plausible.\" Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).\n\n In Massachusetts, upon default in the performance of a\n\nmortgage, a mortgagee may sell the mortgaged property using the\n\n\n - 5 -\n\fstatutory power of sale, so long as the mortgage itself gives the\n\nmortgagee the statutory power by reference. Mass. Gen. Laws ch.\n\n183, § 21. Section 21 requires that, prior to conducting a\n\nforeclosure sale, a mortgagee must \"first comply[] with the terms\n\nof the mortgage and with the statutes relating to the foreclosure\n\nof mortgages by the exercise of a power of sale.\" Id.\n\n Because Massachusetts does not require a mortgagee to\n\nobtain a judicial judgment approving foreclosure of a mortgaged\n\nproperty, see U.S. Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d 40, 49\n\n(Mass. 2011), Massachusetts courts require mortgagees to comply\n\nstrictly with two types of mortgage terms: (1) terms \"directly\n\nconcerned with the foreclosure sale authorized by the power of\n\nsale in the mortgage\" and (2) terms \"prescribing actions the\n\nmortgagee must take in connection with the foreclosure sale--\n\nwhether before or after the sale takes place.\" Pinti v. Emigrant\n\nMortg. Co., 33 N.E.3d 1213, 1220–21 (Mass. 2015).\n\n The mortgage terms for which Massachusetts courts demand\n\nstrict compliance include the provisions in paragraph 22 requiring\n\nand prescribing the pre-foreclosure default notice. Pinti, 33\n\nN.E.3d at 1221. At first glance, Chase's acceleration and default\n\nnotice appears to comply strictly with paragraph 22 in the\n\nThompsons' mortgage. By its terms, paragraph 22 required Chase to\n\n\"inform [the Thompsons] of the right to reinstate after\n\nacceleration.\" Mirroring this language, the notice explained to\n\n\n - 6 -\n\fthe Thompsons that they had \"the right to reinstate after\n\nacceleration of the Loan.\"\n\n Because paragraph 19, which defines the Thompsons' post-\n\nacceleration reinstatement right, imposes conditions and time\n\nlimitations on that right, the Thompsons argue that Chase failed\n\nto comply strictly with paragraph 22's notice requirement by\n\nfailing to inform the Thompsons of the conditions and limitations\n\non the reinstatement right. Paragraph 22, however, instructs that\n\nChase inform the Thompsons of their substantive right to reinstate;\n\nit does not require that Chase describe in detail the procedure\n\nthat the Thompsons must follow to exercise the right or the\n\ndeadlines associated with the right. And paragraph 19 does not,\n\non its own, impose any notice requirements on Chase.\n\n However, Massachusetts law requires that the paragraph\n\n22 notice given to the mortgagor be accurate and not deceptive--\n\nnote the possible difference between the two concepts--and the\n\nSupreme Judicial Court has made clear that inaccuracy or deceptive\n\ncharacter can be fatal. In Pinti, the mortgagee's notice said\n\nthat the mortgagors \"have the right to assert in any lawsuit for\n\nforeclosure and sale the nonexistence of a default.\" Pinti, 33\n\nN.E.3d at 1222 (emphasis omitted). This, the Pinti court reasoned,\n\ncould mislead mortgagors into thinking that they could await a\n\nlawsuit by the mortgagee before attacking the foreclosure. Id.\n\n\n\n\n - 7 -\n\f Here, the notice's additional language--\"you can still\n\navoid foreclosure by paying the total past-due amount before a\n\nforeclosure sale takes place\"--could mislead the Thompsons into\n\nthinking that they could wait until a few days before the sale to\n\ntender the required payment. Suppose the Thompsons had showed up\n\nwith the payment three days before the sale believing that their\n\ntender was timely since the notice said that the tender may be\n\nmade before the sale. The bank would properly have pointed out\n\nthat under paragraph 19 a tender must be made at least five days\n\nbefore the sale.\n\n The Thompsons do not claim to have been prejudicially\n\nmisled, and they certainly did not tender the payment at any time\n\nbefore the sale. The mind of the common-law lawyer is steeped in\n\nthe proposition that a mistake must ordinarily have had an adverse\n\nimpact on the plaintiff or a court will disregard it: no harm, no\n\nfoul. See, e.g., Shaulis v. Nordstrom, Inc., 865 F.3d 1, 15 (1st\n\nCir. 2017) (concluding that fraudulent-misrepresentation claim\n\nfails because plaintiff did not allege an actionable injury caused\n\nby defendant's false statement). But Pinti frees the mortgagor of\n\nany need to prove that the inaccuracy or deception caused harm:\n\n\"The defendants' assertion that the plaintiffs in this case were\n\nnot prejudiced by any failure to comply with the provisions of\n\nparagraph 22 misses the point. Paragraph 22 demands strict\n\ncompliance, regardless of the existence, or not, of prejudice to\n\n\n - 8 -\n\fa particular mortgagor.\" Pinti, 33 N.E.3d at 1223 n.20 (citing\n\nFoster, Hall & Adams Co. v. Sayles, 100 N.E. 644, 646 (Mass.\n\n1913)).\n\n After all, the bank is the one writing the notice and\n\nhas ample opportunity and expertise to make it entirely accurate.\n\nIt may take some imagination to consider every possible way it\n\ncould be misleading; but the foreclosure procedure allowed to the\n\nbank is itself favorable to the bank. In exchange, both accuracy\n\nand avoidance of potential deception are conditions of the validity\n\nof the foreclosure, lifting from the Thompsons the need to show\n\nprejudice. The state-court reading of Massachusetts law binds a\n\nfederal court sitting in diversity. N. Am. Specialty Ins. Co. v.\n\nLapalme, 258 F.3d 35, 38 (1st Cir. 2001).\n\n In sum, the bank had no obligation under paragraph 19 to\n\nlay out its procedures, but it did have an obligation under\n\nparagraph 22 to provide notice and, under Pinti, to make anything\n\nit did say accurate and avoid potential deception. Words are\n\nusually elastic, but it does not matter that the purist could well\n\nthink that the notice in this case was potentially deceptive rather\n\nthan literally inaccurate (for the Thompsons could defeat\n\nforeclosure by payment before the foreclosure date). Omitting the\n\nqualification (that the payment must be tendered at least five\n\ndays before the foreclosure date) in our view rendered the notice\n\npotentially deceptive.\n\n\n - 9 -\n\f The Thompson brief squarely raised the objection; the\n\nbank offered no response to it. Despite the absence of a claim of\n\nactual prejudice, the strict-compliance requirement, supported by\n\nboth the Pinti holding and the rationale supplied for the holding,\n\ninvalidates the foreclosure. The judgment must be reversed, and\n\nthe case remanded for further proceedings consistent with this\n\nopinion.\n\n It is so ordered.\n\n\n\n\n - 10 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366293/", "author_raw": "BOUDIN, Circuit Judge"}]} | THOMPSON | BOUDIN | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589040/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Mark R. THOMPSON; Beth A. Thompson, Plaintiffs, Appellants, v. JPMORGAN CHASE BANK, N.A., Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1559\n\n MARK R. THOMPSON; BETH A. THOMPSON,\n\n Plaintiffs, Appellants,\n\n v.\n\n JPMORGAN CHASE BANK, N.A.,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Rya W. Zobel, U.S. District Judge]\n\n\n Before\n\n Thompson, Boudin, and Kayatta,\n Circuit Judges.\n\n\n Todd S. Dion on brief for appellants.\n Juan S. Lopez, Jeffrey D. Adams, and Parker Ibrahim & Berg\nLLP on brief for appellee.\n\n\n February 8, 2019\n\f BOUDIN, Circuit Judge. Mark and Beth Thompson sued\n\nJPMorgan Chase Bank (\"Chase\") for breach of contract and violating\n\nthe statutory power of sale Massachusetts affords mortgagees.\n\nMass. Gen. Laws ch. 183, § 21. The Thompsons alleged Chase failed\n\nto comply with the notice requirements in their mortgage before\n\nforeclosing on their property. The district court granted Chase's\n\nmotion to dismiss for failure to state a claim.\n\n On June 13, 2006, the Thompsons granted a mortgage to\n\nWashington Mutual Bank on their house to secure a loan in the\n\namount of $322,500. The mortgage included two paragraphs, both\n\nstandard mortgage provisions in Massachusetts, relevant to this\n\nappeal.\n\n First, paragraph 22 required that prior to accelerating\n\npayment by the Thompsons, Washington Mutual had to provide the\n\nThompsons notice specifying:\n\n (a) the default; (b) the action required to\n cure the default; (c) a date, not less than 30\n days from the date the notice is given to\n Borrower, by which the default must be cured;\n and (d) that failure to cure the default on or\n before the date specified in the notice may\n result in acceleration of the sums secured by\n this Security Instrument and sale of the\n Property.\n\nIn addition, paragraph 22 required Washington Mutual to inform the\n\nThompsons of \"the right to reinstate after acceleration and the\n\nright to bring a court action to assert the non-existence of a\n\ndefault or any other defense of Borrower to acceleration and sale.\"\n\n\n - 2 -\n\f Second, paragraph 19 described the Thompsons' right to\n\nreinstate after acceleration, including the conditions and time\n\nlimitations related to that right.\n\n If Borrower meets certain conditions, Borrower\n shall have the right to have enforcement of\n this Security Instrument discontinued at any\n time prior to the earliest of: (a) five days\n before the sale of the Property pursuant to\n any power of sale contained in this Security\n Instrument; (b) such other period as\n Applicable Law might specify for the\n termination of Borrower’s right to reinstate;\n or (c) entry of judgment enforcing this\n Security Instrument. Those conditions are\n that Borrower: (a) pays Lender all sums which\n then would be due under this Security\n Instrument and the Note as if no acceleration\n had occurred; (b) cures any default of any\n other covenants or agreements; (c) pays all\n expenses incurred in enforcing this Security\n Instrument, including, but not limited to,\n reasonable attorneys’ fees, property\n inspection and valuation fees, and other fees\n incurred for the purpose of protecting\n Lender’s interest in the Property and rights\n under this Security Instrument; and (d) takes\n such action as Lender may reasonably require\n to assure that Lender’s interest in the\n Property and rights under this Security\n Instrument, and Borrower’s obligation to pay\n the sums secured by this Security Instrument,\n shall continue unchanged.\n\n In 2008, after the United States Office of Thrift\n\nSupervision seized Washington Mutual Bank and placed it in\n\nreceivership with the Federal Deposit Insurance Corporation\n\n(\"FDIC\"), FDIC sold the banking subsidiaries to Chase, which became\n\nthe mortgagee on the Thompsons' mortgage.\n\n\n\n\n - 3 -\n\f On August 12, 2016, Chase sent default and acceleration\n\nnotices to the Thompsons. The notices informed the Thompsons that\n\n(1) their mortgage loan was in default; (2) tendering the past-\n\ndue amount of $200,056.60 would cure the default; (3) the default\n\nmust be cured by November 10, 2016; and (4) if the Thompsons failed\n\n\"to cure the default on or before 11/10/2016, Chase [could]\n\naccelerate the maturity of the Loan, . . . declare all sums secured\n\nby the Security Instrument immediately due and payable, commence\n\nforeclosure proceedings, and sell the Property.\"\n\n The notices explained to the Thompsons that they had\n\n\"the right to reinstate after acceleration of the Loan and the\n\nright to bring a court action to assert the nonexistence of a\n\ndefault, or any other defense to acceleration, foreclosure, and\n\nsale.\" The notices also said the Thompsons could \"still avoid\n\nforeclosure by paying the total past-due amount before a\n\nforeclosure sale takes place.\"\n\n On November 15, 2017, after the Thompsons failed to cure\n\nthe default, Chase foreclosed on the property and conducted a\n\nforeclosure sale. On December 15, 2017, the Thompsons filed a\n\ncomplaint in Plymouth County Superior Court, alleging Chase failed\n\nto comply with the paragraph 22 notice requirements prior to\n\nforeclosing on their property. On January 23, 2018, Chase removed\n\nthe suit to the District Court for the District of Massachusetts.\n\n\n\n\n - 4 -\n\f Chase then filed a motion to dismiss for failure to state\n\na claim. After opposition and reply, the district court concluded\n\nthat Chase's default and acceleration notice strictly complied\n\nwith paragraph 22, including advising the Thompsons of their post-\n\nacceleration reinstatement right, and granted Chase's motion to\n\ndismiss. The Thompsons now appeal. They argue that the default\n\nletter failed to comply strictly with paragraph 22 because the\n\nletter did not inform the Thompsons of the conditions and time\n\nlimitations included in their post-acceleration reinstatement\n\nright as described in paragraph 19. They also claim that the\n\nportion of the notice that specified that the Thompsons could\n\n\"still avoid foreclosure by paying the total past-due amount before\n\na foreclosure sale takes place\" was inaccurate and misleading,\n\nthough they do not say that their conduct was in any way altered.\n\n A district court's dismissal for failure to state a claim\n\nis reviewed de novo, Galvin v. U.S. Bank, N.A., 852 F.3d 146, 153\n\n(1st Cir. 2017), taking all factual assertions in a complaint as\n\ntrue and drawing all reasonable inferences in the plaintiffs'\n\nfavor; but this does not include legal conclusions clothed as\n\nfactual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S.\n\n544, 555–56 (2007). To survive a motion to dismiss, the claim\n\nmust be \"plausible.\" Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).\n\n In Massachusetts, upon default in the performance of a\n\nmortgage, a mortgagee may sell the mortgaged property using the\n\n\n - 5 -\n\fstatutory power of sale, so long as the mortgage itself gives the\n\nmortgagee the statutory power by reference. Mass. Gen. Laws ch.\n\n183, § 21. Section 21 requires that, prior to conducting a\n\nforeclosure sale, a mortgagee must \"first comply[] with the terms\n\nof the mortgage and with the statutes relating to the foreclosure\n\nof mortgages by the exercise of a power of sale.\" Id.\n\n Because Massachusetts does not require a mortgagee to\n\nobtain a judicial judgment approving foreclosure of a mortgaged\n\nproperty, see U.S. Bank Nat'l Ass'n v. Ibanez, 941 N.E.2d 40, 49\n\n(Mass. 2011), Massachusetts courts require mortgagees to comply\n\nstrictly with two types of mortgage terms: (1) terms \"directly\n\nconcerned with the foreclosure sale authorized by the power of\n\nsale in the mortgage\" and (2) terms \"prescribing actions the\n\nmortgagee must take in connection with the foreclosure sale--\n\nwhether before or after the sale takes place.\" Pinti v. Emigrant\n\nMortg. Co., 33 N.E.3d 1213, 1220–21 (Mass. 2015).\n\n The mortgage terms for which Massachusetts courts demand\n\nstrict compliance include the provisions in paragraph 22 requiring\n\nand prescribing the pre-foreclosure default notice. Pinti, 33\n\nN.E.3d at 1221. At first glance, Chase's acceleration and default\n\nnotice appears to comply strictly with paragraph 22 in the\n\nThompsons' mortgage. By its terms, paragraph 22 required Chase to\n\n\"inform [the Thompsons] of the right to reinstate after\n\nacceleration.\" Mirroring this language, the notice explained to\n\n\n - 6 -\n\fthe Thompsons that they had \"the right to reinstate after\n\nacceleration of the Loan.\"\n\n Because paragraph 19, which defines the Thompsons' post-\n\nacceleration reinstatement right, imposes conditions and time\n\nlimitations on that right, the Thompsons argue that Chase failed\n\nto comply strictly with paragraph 22's notice requirement by\n\nfailing to inform the Thompsons of the conditions and limitations\n\non the reinstatement right. Paragraph 22, however, instructs that\n\nChase inform the Thompsons of their substantive right to reinstate;\n\nit does not require that Chase describe in detail the procedure\n\nthat the Thompsons must follow to exercise the right or the\n\ndeadlines associated with the right. And paragraph 19 does not,\n\non its own, impose any notice requirements on Chase.\n\n However, Massachusetts law requires that the paragraph\n\n22 notice given to the mortgagor be accurate and not deceptive--\n\nnote the possible difference between the two concepts--and the\n\nSupreme Judicial Court has made clear that inaccuracy or deceptive\n\ncharacter can be fatal. In Pinti, the mortgagee's notice said\n\nthat the mortgagors \"have the right to assert in any lawsuit for\n\nforeclosure and sale the nonexistence of a default.\" Pinti, 33\n\nN.E.3d at 1222 (emphasis omitted). This, the Pinti court reasoned,\n\ncould mislead mortgagors into thinking that they could await a\n\nlawsuit by the mortgagee before attacking the foreclosure. Id.\n\n\n\n\n - 7 -\n\f Here, the notice's additional language--\"you can still\n\navoid foreclosure by paying the total past-due amount before a\n\nforeclosure sale takes place\"--could mislead the Thompsons into\n\nthinking that they could wait until a few days before the sale to\n\ntender the required payment. Suppose the Thompsons had showed up\n\nwith the payment three days before the sale believing that their\n\ntender was timely since the notice said that the tender may be\n\nmade before the sale. The bank would properly have pointed out\n\nthat under paragraph 19 a tender must be made at least five days\n\nbefore the sale.\n\n The Thompsons do not claim to have been prejudicially\n\nmisled, and they certainly did not tender the payment at any time\n\nbefore the sale. The mind of the common-law lawyer is steeped in\n\nthe proposition that a mistake must ordinarily have had an adverse\n\nimpact on the plaintiff or a court will disregard it: no harm, no\n\nfoul. See, e.g., Shaulis v. Nordstrom, Inc., 865 F.3d 1, 15 (1st\n\nCir. 2017) (concluding that fraudulent-misrepresentation claim\n\nfails because plaintiff did not allege an actionable injury caused\n\nby defendant's false statement). But Pinti frees the mortgagor of\n\nany need to prove that the inaccuracy or deception caused harm:\n\n\"The defendants' assertion that the plaintiffs in this case were\n\nnot prejudiced by any failure to comply with the provisions of\n\nparagraph 22 misses the point. Paragraph 22 demands strict\n\ncompliance, regardless of the existence, or not, of prejudice to\n\n\n - 8 -\n\fa particular mortgagor.\" Pinti, 33 N.E.3d at 1223 n.20 (citing\n\nFoster, Hall & Adams Co. v. Sayles, 100 N.E. 644, 646 (Mass.\n\n1913)).\n\n After all, the bank is the one writing the notice and\n\nhas ample opportunity and expertise to make it entirely accurate.\n\nIt may take some imagination to consider every possible way it\n\ncould be misleading; but the foreclosure procedure allowed to the\n\nbank is itself favorable to the bank. In exchange, both accuracy\n\nand avoidance of potential deception are conditions of the validity\n\nof the foreclosure, lifting from the Thompsons the need to show\n\nprejudice. The state-court reading of Massachusetts law binds a\n\nfederal court sitting in diversity. N. Am. Specialty Ins. Co. v.\n\nLapalme, 258 F.3d 35, 38 (1st Cir. 2001).\n\n In sum, the bank had no obligation under paragraph 19 to\n\nlay out its procedures, but it did have an obligation under\n\nparagraph 22 to provide notice and, under Pinti, to make anything\n\nit did say accurate and avoid potential deception. Words are\n\nusually elastic, but it does not matter that the purist could well\n\nthink that the notice in this case was potentially deceptive rather\n\nthan literally inaccurate (for the Thompsons could defeat\n\nforeclosure by payment before the foreclosure date). Omitting the\n\nqualification (that the payment must be tendered at least five\n\ndays before the foreclosure date) in our view rendered the notice\n\npotentially deceptive.\n\n\n - 9 -\n\f The Thompson brief squarely raised the objection; the\n\nbank offered no response to it. Despite the absence of a claim of\n\nactual prejudice, the strict-compliance requirement, supported by\n\nboth the Pinti holding and the rationale supplied for the holding,\n\ninvalidates the foreclosure. The judgment must be reversed, and\n\nthe case remanded for further proceedings consistent with this\n\nopinion.\n\n It is so ordered.\n\n\n\n\n - 10 -\n[END_CASE]",
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4,589,041 | Mark GILBERT, Plaintiff, Appellant, v. CITY OF CHICOPEE; William Jebb; John Pronovost; Richard J. Kos, Defendants, Appellees, John Doe; Jane Doe, Defendants. | Gilbert v. City of Chicopee | 2019-02-08 | 17-2206P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Torruella, Thompson", "parties": "", "opinions": [{"author": "THOMPSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2206\n\n MARK GILBERT,\n\n Plaintiff, Appellant,\n\n v.\n\n CITY OF CHICOPEE; WILLIAM JEBB; JOHN PRONOVOST; RICHARD J. KOS,\n\n Defendants, Appellees,\n\n JOHN DOE; JANE DOE,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Michael A. Ponsor, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n Shawn P. Allyn, with whom Allyn & Ball, P.C. was on brief,\nfor appellant Mark Gilbert.\n John J. McCarthy, with whom Doherty, Wallace, Pillsbury and\nMurphy, P.C. was on brief, for appellee William Jebb.\n John T. Liebel, with whom Law Office of John T. Liebel was on\nbrief, for appellee John Pronovost.\n Nancy Frankel Pelletier, with whom David S. Lawless and\nRobinson Donovan, P.C. were on brief, for appellees City of\nChicopee and Richard J. Kos.\n\fFebruary 8, 2019\n\f THOMPSON, Circuit Judge.\n\n PREFACE\n\n After a near decade-long saga within the fragmented City\n\nof Chicopee Police Department, Plaintiff-Appellant Mark Gilbert,\n\na Captain in the police department, sued a host of Defendants-\n\nAppellees, including the City of Chicopee, Police Chief William\n\nJebb, Mayor Richard J. Kos, and fellow police officer John\n\nPronovost, seeking redress under 42 U.S.C. § 1983 and various state\n\nlaws.1 From what we can glean, Gilbert claims his First Amendment\n\nrights were violated after appellees improperly targeted him for\n\n\"speaking out and participating in a government investigation.\"\n\nIn this appeal (which causes us to seriously ponder \"who's policing\n\nthe police?\"), Gilbert seeks reversal of the district court's\n\ndismissal of his claims pursuant to Federal Rule of Civil Procedure\n\n12(b)(6). Finding no reason to reverse, we close the curtain on\n\nthis workplace drama.\n\n GETTING OUR FACTUAL BEARINGS\n\n In sharing this tale, we construe the facts of the\n\ncomplaint in the light most favorable to Gilbert. Ocasio–Hernández\n\nv. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011) (citing Fed. R.\n\nCiv. P. 12(b)(6)). While doing so, we observe, as did the district\n\n\n 1 Although Gilbert named Defendants Jane and John Doe in the\ncaption of his amended complaint, they were not mentioned in its\nbody.\n\n\n\n - 3 -\n\fcourt, that Gilbert's one-hundred-eighty-one paragraph complaint\n\nis particularly difficult to follow.2 Because the district court\n\nalready parsed as best it could the facts drawn from Gilbert's\n\ncomplaint and gave the narrative some coherence, we provide and\n\nadopt the district court's recitation of facts contained in its\n\nNovember 14, 2017 Memorandum and Order Regarding Defendants'\n\nMotions to Dismiss (and we thank the district court for its\n\nherculean effort).\n\n Over at least the past decade, [Gilbert] has been\n a police officer for the City of Chicopee. Defendants\n Jebb and Pronovost were fellow officers during this\n time. In 2007, Defendant Pronovost fell into a\n depression after his wife died, and he began behaving\n strangely at work.[*] At some point, [Gilbert]\n complained about this behavior to [] Jebb, who was at\n the time Captain of his shift. Nothing was done in\n response to [Gilbert]'s complaint. Thereafter, on an\n unspecified date in December, [Gilbert] and Pronovost\n\n 2 The district court underscored that Gilbert's \"complaint\nwavers back and forth chronologically and sometimes offers\ndisconnected narratives, with links between the factual\nallegations and [Gilbert]'s supposed injuries often difficult to\ndiscern.\" Gilbert v. City of Chicopee, No. 3:16-cv-30024-MAP,\n2017 WL 8730474, at *1 (D. Mass. Nov. 14, 2017). Indeed,\n\"[i]mportant details confusingly appear for the first time only\nafter the Statement of Facts.\" Id. at *4 (emphasis in original).\nFor example, the district court pointed to \"a reference to an email\nsent by Defendant Jebb regarding one 'Lieutenant Watson' on\nSeptember 12, 2014\" that \"appears out of the blue in the text of\nCount 3\" and noted that \"critical factual details, such as the\ntiming and nature of the supposed 'pretextual discipline' are\nsimply absent from the complaint.\" Id.\n\n [*] We pause to note this strange behavior Gilbert speaks of\ntook place in the Police Department's booking and cellblock areas\nand involved Pronovost's efforts to communicate with the dead using\ncrystal rocks tied to strings, and hardware store lights which he\ncalled \"ghost traps.\"\n\n\n - 4 -\n\fgot into an argument about Pronovost's behavior. During\nthe interchange, Pronovost allegedly pulled out his gun\nand pointed it at [Gilbert]. [Gilbert] verbally\nreported the incident to his commanding officer Thomas\nCharette.2\n\n 2[Gilbert] alleges that Jebb was in the\n room with [him] and Pronovost during this\n incident. However, [] Jebb disputes\n [Gilbert]'s version, stating that the event in\n question \"never happened.\"\n\nAgain, nothing was done.\n\n In 2012, [Gilbert] was promoted to the rank of\nCaptain, and Charette was appointed Acting Police Chief.\nDefendant Jebb, also a candidate for Acting Police\nChief, allegedly resented Charette and other police\nofficers, including [Gilbert], who he believed had\nsupported Charette's appointment.\n\n That same year, certain Chicopee Police Officers\nresponding to a murder scene took pictures of the\nvictim's body and shared them with one another and with\ncivilians outside the police department in violation of\ndepartment regulations. At the time, Defendant Jebb was\nthe Internal Affairs Investigative Officer tasked with\ninvestigating this incident. Jebb concluded that only\none officer was responsible for the improper conduct,\nand he failed to recommend, in [Gilbert]'s view, a\nsufficiently stringent sanction.\n\n At some point in the 2012-2013 time frame, the\ninvestigation into the murder scene misconduct by\nChicopee Police Officers resumed. This time the inquiry\nincluded an incident where photographs of the murder\nvictim's corpse were allegedly displayed to civilians\noutside the police department at a football game.\n\n In May 2013, Jebb was relieved of his duties with\nInternal Affairs, and he himself became a target of an\ninvestigation into his conduct as the Internal Affairs\nInvestigative Officer. This second investigation\nfocused, in part, on allegations that Jebb failed to\nlook into sexual harassment charges against several\nofficers. It also looked into whether Jebb had properly\n\n\n\n - 5 -\n\finvestigated the officers who had distributed the\ngruesome photographs from the murder scene.\n\n Jebb had made an unsuccessful bid for the office of\nPresident of the Police Union in 2013, and the complaint\nrefers to an allegation that he improperly numbered the\nballots in that election in order to be able to identify\nwhich officers supported him and which supported his\nopponent, Sgt. Dan Major. Finally, [] Jebb was also\naccused of hiding evidence to thwart an internal\ninvestigation into allegations that Sgt. Major had\nchoked a prisoner.3\n\n 3\"[Gilbert]'s complaint implies that\n these charges formed part of the\n investigation(s) then pending against Jebb and\n not merely allegations on [Gilbert]'s part\n offered in this litigation. (Dkt. No. 72 at 3-\n 4). Although the complaint is ambiguous on\n this point,[] Jebb and Kos's Memoranda in\n support of their Motions to Dismiss clarify\n the context to some extent. Jebb's Memorandum\n notes that [Gilbert] made \"written statements\n and testimony . . . to a government\n investigator relating to Jebb's alleged\n mishandling of ballots.\" (Dkt. No. 28 at 1).\n Kos's Memorandum observes that [Gilbert], \"as\n a police captain and internal affairs\n investigator had investigated Chief Jebb's\n removal of evidence from the booking room.\"\n\n[Gilbert] had been the investigating officer for the\nMajor investigation, and he had recommended no\ndiscipline be taken against Sgt. Major . . . . [Gilbert]\ncharacterizes his participation in the ongoing\ninvestigations to include \"provid[ing] information and\nparticipat[ing] in activity which focused on Police\nChief William Jebb's conduct and practices of\nimplementing less than proper discipline towards his\nfriends and retaliating against those he was not friends\nwith; and those who did not vote for him to be the Union\nPresident.\" (Dkt. No. 67-2 at 1).\n\n In July 2013, then-Acting Police Chief Charette\nasked [Gilbert] to draft and file a written incident\nreport about the episode six years earlier when []\nPronovost had threatened [Gilbert] with his gun.\n\n\n - 6 -\n\f[Gilbert] did so. The report was technically late, in\nviolation of Department policy, but Charette did not\ndiscipline [Gilbert], as [Gilbert] had verbally reported\nthe incident to Charette and another of his immediate\nsupervisors at the time it occurred.\n\n According to [Gilbert], [] Jebb was unhappy with\n[Gilbert]'s participation in the ongoing investigation\nof the gun incident and possibly other incidents. On\nOctober 15, 2013, [Gilbert] received a phone call from\n[] Jebb in which the latter told him, \"You have no idea\nabout internal affairs, but you are going to learn. I\nam definitely without a doubt going to win my appeal\n[regarding his having been passed over for Acting Chief]\nand when I do, your [sic] fucked.\" (Dkt. No. 67-3 at 1).\n\n In 2014, [] Mayor Kos appointed [] Jebb as Police\nChief. [Gilbert] alleges that thereafter Jebb \"began\nchanging [Gilbert's] terms and conditions of employment\nand engaged in a concerted effort to have criminal\ncharges initiated against [him].\" (Dkt. No. 72 at 9).\n[Gilbert] claims [] Jebb ordered him off all of his\novertime details, citing as a reason [Gilbert]'s filing\nof a false police report in regard to the 2007 gun\nincident. [He] claims that [] Jebb repeatedly\n\"initiat[ed] pretextual discipline\" against him, but he\ndoes not provide details or state when this occurred.\nIn any event, the [amended] complaint specifies no\ndisciplinary sanctions resulting from these proceedings.\n\n Around this time, according to the complaint, []\nJebb met with [] Kos and Pronovost as part of a\nconspiracy to bring retaliatory criminal charges against\n[Gilbert] and Charette. Charges were eventually brought\nagainst [Gilbert] in Holyoke District Court, perhaps for\nfiling a False Police Report. It is difficult to tell\nfrom the amended complaint, which does not provide a\ndate these charges were brought, what exactly those\ncharges were, or how the criminal case resolved. Count\n4 in the amended complaint states that [Gilbert] was\ncharged with Filing a False Police, which presumably is\nthe criminal case [Gilbert] is referring to.\nAdditionally, Gilbert states that the \"process\nterminated in [his] favor,\" (Dkt. No. 72 at 17), though\nit is not clear if that means he was acquitted of the\ncharge after a trial or the charge was dropped.\n\n\n\n - 7 -\n\fGilbert, 2017 WL 8730474 at *1-3.\n\n WHAT HAPPENED IN THE DISTRICT COURT\n\n Gilbert filed his federal complaint on February 4, 2016,\n\nto which the defendants responded with Rule 12(b)(6) motions to\n\ndismiss. Gilbert then sought leave to amend the complaint, which\n\nthe district court allowed on March 7, 2017 (but struck the\n\nproposed amended complaint due to its \"extreme sloppiness\"). Three\n\ndays later, Gilbert filed the operative amended complaint (which\n\nwe refer to herein as \"the complaint\") in which he asserted eight\n\ncounts:\n\n Count 1: a claim under 42 U.S.C. § 1983 and Mass. Gen.\n\n Laws ch. 12, § 11H against all defendants individually for\n\n retaliating against him for exercising his First Amendment\n\n rights to speak on a matter of public concern and for due process\n\n rights violations;3\n\n Count 2: a claim under 42 U.S.C. § 1983 against the\n\n City for maintaining policies and customs that resulted in the\n\n violation of Gilbert's First Amendment rights;\n\n Count 3: a claim under Mass. Gen. Laws ch. 149, § 185\n\n (the Massachusetts whistleblower statute) against the City,\n\n\n\n 3 In Count 1 of his complaint, Gilbert conclusorily states,\n\"The Defendants acting under the color of state law violated the\nPlaintiff's due process rights . . . .\" He does not allege anything\nfurther and his brief is completely silent as to this claim. We\nthus deem any due process arguments waived.\n\n\n - 8 -\n\f Police Chief Jebb, and Mayor Kos for taking retaliatory actions\n\n against Gilbert;\n\n Counts 4 through 8: common law claims against all\n\n defendants individually for Abuse of Process, Defamation,\n\n Intentional Infliction of Emotional Distress, Malicious\n\n Prosecution, and Civil Conspiracy.\n\n In due course, the defendants renewed their dismissal\n\nmotions, which the district court ultimately granted.4 In\n\nconsidering Gilbert's Count 1 First Amendment claim which got\n\ntossed with prejudice as to all defendants, the district court\n\nstruggled to identify the exact speech Gilbert alleged to be\n\nprotected: \"This is not a case where Plaintiff wrote a letter or\n\nspoke out at a public meeting. Exactly what Plaintiff said, and\n\nwhen, is left very vague.\" Gilbert, 2017 WL 8730474 at *5. But\n\nafter generously combing through the complaint, the district court\n\ndetermined that the speech Gilbert most emphasized as warranting\n\nFirst Amendment protections was the July 19, 2013 written report,\n\nin which he described the 2007 gun-pointing incident involving\n\nPronovost and Gilbert. And to the extent the July report was the\n\n\"speech\" in question, the district court reasoned it was offered\n\npursuant to Gilbert's official duties as a police officer and\n\n\n 4 In so holding, the district court dismissed all claims\nagainst John Doe and Jane Doe with prejudice since those defendants\nwere not named anywhere in the body of the amended complaint.\n\n\n\n - 9 -\n\fpublic employee, and not as a private citizen, and, therefore, not\n\nafforded First Amendment protections.\n\n The district court also dismissed with prejudice Count\n\n2's municipal liability claim. To succeed on this claim Gilbert\n\nhad to \"offer sufficient facts to permit the court to identify an\n\nunconstitutional custom or policy of the city that was the moving\n\nforce behind the injury alleged.\" Gilbert, 2017 WL 8730474 at *6\n\n(quoting Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011))\n\n(citation and internal quotation marks omitted). The district\n\ncourt found that although the complaint conveyed Gilbert's sense\n\nof grievance about general misconduct at the police department it\n\nfailed to \"articulate a specific municipal custom or policy[] or\n\nto offer concrete allegations demonstrating its existence.\" Id.\n\n After rejecting Gilbert's federal claims, the district\n\ncourt declined to exercise supplemental jurisdiction over Counts\n\n3 through 8 state law claims save the ones involving Kos: those\n\ngot dismissed with prejudice. As to them, the district court found\n\nthat Gilbert either complained about events which occurred before\n\nKos was elected mayor or made conjectural and speculative\n\nallegations devoid of any facts which could support a viable cause\n\nof action.\n\n And here we are.\n\n\n\n\n - 10 -\n\f STANDARD OF REVIEW\n\n We review the district court's ruling on a motion to\n\ndismiss de novo, accepting all well-pled facts in the complaint as\n\ntrue, and drawing all reasonable inferences in favor of the\n\nplaintiff. Ocasio-Hernández, 640 F.3d at 7; Gargano v. Liberty\n\nInt'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). To\n\nsurvive a motion to dismiss under Rule 12(b)(6), the complaint\n\nmust give the defendant fair notice of what the claim is and the\n\nground upon which it rests and allege a plausible entitlement to\n\nrelief. Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011).\n\nDismissal for failure to state a claim is warranted when the\n\ncomplaint lacks \"sufficient factual matter . . . to 'state a claim\n\nto relief that is plausible on its face.'\" Ashcroft v. Iqbal, 556\n\nU.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.\n\n544, 570 (2007)). We make this determination through a holistic,\n\ncontext-specific analysis of the complaint. See Iqbal, 556 U.S.\n\nat 679; Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009).\n\nNevertheless, the plausibility standard \"asks for more than a sheer\n\npossibility that a defendant has acted unlawfully.\" Iqbal, 556\n\nU.S. at 678 (citing Twombly, 550 U.S. at 556).\n\n Also relevant here (in part) is this: when the district\n\ncourt \"accurately takes the measure of a case, persuasively\n\nexplains its reasoning, and reaches a correct result, it serves no\n\nuseful purpose for a reviewing court to write at length in placing\n\n\n - 11 -\n\fits seal of approval on the decision below.\" Moses v. Mele, 711\n\nF.3d 213, 216 (1st Cir. 2013).\n\n With these standards in mind, we turn to the limited\n\nissues presented on appeal. Did the district court blunder, as\n\nGilbert contends, in dismissing Count 1 against Kos, Jebb, and\n\nPronovost, Count 2 against the City, and most of the state law\n\nclaims against Kos?5\n\n ANALYSIS6\n\n1. First Amendment Retaliation Claim\n\n We begin our analysis with Gilbert's claim that \"[t]he\n\nDefendants acting under the color of state law violated and\n\n\n\n\n 5 Gilbert is not appealing the dismissal of Count 5.\n\n 6 Pronovost argues that we have no jurisdiction to review the\ndistrict court's November 14, 2017 order granting the defendants'\nmotions to dismiss because Gilbert's notice of appeal is defective,\nin violation of Federal Rule of Appellate Procedure 3(c)(1)(B).\nTrue, Gilbert's notice of appeal stated that he appealed from\nDocket #86, which is the district court judge's Memorandum and\nOrder, instead of Docket #87, which is the Order of Dismissal. We\nreject Pronovost's contention. That Gilbert mixed up the dismissal\norder's docket number is of no matter in this instance because\n\"[a] mistake in designating a judgment . . . in the notice of\nappeal ordinarily will not result in loss of the appeal as long as\nthe intent to appeal a specific judgment can be fairly inferred\nfrom the notice and the appellee is not misled by the mistake.\"\nIn re Spookyworld, Inc., 346 F.3d 1, 6 (1st Cir. 2003) (quoting\nKelly v. United States, 780 F.2d 94, 96 n.3 (1st Cir. 1986)).\nHere, Gilbert's intent is unambiguous. From the face of the notice\nof appeal, Gilbert specified that he sought to appeal \"from the\nDistrict Court's Order entered November 14, 2017 . . . allowing\nDefendants' Motion to Dismiss and dismissing Plaintiff's\nComplaint.\" Thus, we conclude that we have jurisdiction to review\nthe district court's dismissal order.\n\n\n - 12 -\n\fretaliated against the Plaintiff for exercising his First\n\nAmendment rights and in retaliation for speaking out and\n\nparticipating in a government investigation.\" As Gilbert tells\n\nit, he was removed from working all overtime hours, subjected to\n\na criminal proceeding, and suspended from the police department in\n\nretaliation for voicing his protected speech.\n\n But before diving into the merits, we pause to again\n\nnote our agreement with the district court's observation: our de\n\nnovo review of Gilbert's First Amendment claim is handcuffed by\n\nthe lack of specificity regarding exactly what speech underlies\n\nhis claim. Gilbert's complaint muddlingly sketches a litany of\n\noccasions spanning years during which he griped to superiors and\n\ninvestigators, orally and in writing, about the professional\n\nbehavior of his colleagues or public officials. Through their\n\nbriefing the appellees give us a clue as to their understanding of\n\nGilbert's complaint. For their part, the City, Jebb, Kos, and\n\nPronovost suggest that they, like the district court, understand\n\nGilbert's most significant at-issue speech to refer to the July\n\n2013 written report of Pronovost misusing his firearm. However,\n\nwhether we view Gilbert's complaint as encompassing one or multiple\n\nevents of speaking out, the result is the same. He fails to state\n\na First Amendment claim.\n\n In general, government officials may not subject \"an\n\nindividual to retaliatory actions . . . for speaking out.\"\n\n\n - 13 -\n\fMercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 25 (1st Cir. 2010)\n\n(quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). This is so\n\nbecause \"[p]ublic employees do not lose their First Amendment\n\nrights to speak on matters of public concern simply because they\n\nare public employees.\" Rodriguez-Garcia v. Miranda-Marin, 610\n\nF.3d 756, 765 (1st Cir. 2010) (quoting Curran v. Cousins, 509 F.3d\n\n36, 44 (1st Cir. 2007)). However, \"in recognition of the\n\ngovernment's interest in running an effective workplace,\" those\n\nrights are not absolute. Decotiis, 635 F.3d at 29 (quoting\n\nMercado-Berrios, 611 F.2d at 26); see also Garcetti v. Ceballos,\n\n547 U.S. 410, 418 (2006).\n\n To determine whether an adverse employment action\n\nagainst a public employee violated an individual's First Amendment\n\nfree speech rights, we employ a three-part inquiry. See Rodriguez-\n\nGarcia, 610 F.3d at 765-66. First, we must assess whether Gilbert\n\n\"spoke as a citizen on a matter of public concern.\" Curran, 509\n\nF.3d at 45 (quoting Garcetti, 547 U.S. at 418). In making this\n\ndetermination, we ask whether the \"speech\" underlying Gilbert's\n\nclaim was made \"pursuant to his official duties.\" Garcetti, 547\n\nU.S. at 421. In considering this question, we look to several\n\n\"non-exclusive factors,\" which help distinguish speech by a public\n\nemployee in a professional versus a private capacity. These\n\ninclude:\n\n\n\n\n - 14 -\n\f whether the employee was commissioned or paid to make\n the speech in question; the subject matter of the speech;\n whether the speech was made up the chain of command;\n whether the employee spoke at her place of employment;\n whether the speech gave objective observers the\n impression that the employee represented the employer\n when she spoke (lending it \"official significance\");\n whether the employee's speech derived from special\n knowledge obtained during the course of her employment;\n and whether there is a so-called citizen analogue to the\n speech.\n\nDecotiis, 635 F.3d at 32 (internal citations omitted). If we\n\nconclude, as we do, after applying these factors, that Gilbert’s\n\nspeech was made \"pursuant to his official duties,\" then Gilbert\n\nhas no First Amendment claim, since, generally, \"[r]estricting\n\nspeech that owes its existence to a public employee's professional\n\nresponsibilities does not infringe any liberties.\" Garcetti, 547\n\nU.S. at 421-22.7\n\n Because Gilbert's claim founders at the first prong of\n\nthe Garcetti inquiry -- that is, whether Gilbert \"spoke as a\n\n\n\n\n 7 Hadwe concluded that Gilbert made the speech in his private\ncapacity, then we would have proceeded to the second requirement\nand balanced Gilbert's interest in speaking as a private citizen\nregarding matters of public concern with the interest of the\ngovernment, as an employer, in promoting the efficiency of the\npublic services it performs. See Decotiis, 635 F.3d at 29 (citing\nPickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Then under\nthe third requirement, Gilbert would have to have shown that the\nspeech was a substantial or motivating factor in the adverse\nemployment decision. See Curran, 509 F.3d at 45. If all three\nparts of the inquiry had been resolved in Gilbert's favor, the\ndefendants could still escape liability if they had shown the same\ndecision would have been reached even absent the protected conduct.\nRodriguez-Garcia, 610 F.3d at 765-66 (citing Mt. Healthy City Sch.\nDist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).\n\n\n - 15 -\n\fcitizen on a matter of public concern\" -- we decline to reach the\n\nsecond and third prongs.\n\n As to Gilbert's federal constitutional claim, it is\n\npremised solely on his assertion that his speech involved matters\n\nof public concern and thus enjoys First Amendment protections.\n\nAccording to him \"[i]t is in the interest of the police department,\n\nand the general public, to ensure that officers take considerable\n\ncare in how they handle their service weapons.\" And of public\n\nconcern is \"the failure to properly address police misconduct,\n\nwhich has the potential to impact the larger public.\" Gilbert\n\ncontinues -- failing to \"investigate sexual harassment\n\ncomplaints,\" exuding \"leniency in investigating officers who\n\ndistributed photographs\" of a corpse, and removing evidence from\n\nan evidence room \"for the purpose of interfering with an IIU\n\ninvestigation\" would also rise to the level of creating a public\n\nconcern for the citizens of Chicopee.\n\n In response, the appellees argue that the district court\n\ngot it just right: it properly dismissed Gilbert's First Amendment\n\nclaim because all of Gilbert's speech was compelled as part of his\n\nemployment and thus was made within the scope of his official\n\nduties rather than as a citizen.8 We agree.\n\n\n 8 In his brief, Gilbert tells us that the Decotiis factors\nwhich we enumerated above are the analytical tools we must use to\ndetermine whether Gilbert spoke in his capacity as a citizen or\n\n\n\n - 16 -\n\f Applying the Decotiis factors spelled out above, there\n\nis no plausible inference which can be drawn from the complaint\n\nthat Gilbert's statements were made in his capacity as a citizen.\n\n Explicating first on the July 2013 report, Gilbert\n\nacknowledges in the complaint that he wrote the report in response\n\nto an \"order,\" and that he \"would have been disciplined for\n\nrefusing to follow a command if he refused\" to write the report.\n\nHe makes clear that he \"did not initiate the subject complaints\n\nagainst Defendant Jebb . . . [and that the] City of Chicopee,\n\nthrough its executive [i.e., Charette], created this issue by\n\nordering [Gilbert] to provide a summary of these events again to\n\nmanagement.\" Further, the subject matter about which he spoke\n\nconcerned the gun incident and Pronovost's conduct \"in the work\n\nplace\" -- that is, bringing crystal rocks and setting up\n\n\"ghost traps\" in the booking area and cells of inmates at the\n\npolice station. The content of the July report also includes a\n\ndiscussion about another work colleague -- Jebb -- whom Gilbert\n\ntold about the incident and allegedly failed to properly discipline\n\n\n\n\npursuant to his official duties. And his brief is replete with\nwhy his words should be deemed of public concern. Yet Gilbert\nnever bothers either in his initial brief or reply brief to provide\nus with any reasoned explanation for why we should deem his speech\nthat of a private citizen under the Decotiis test. Therefore, his\nargument is likely waived. Fernandez-Salicrup v. Figueroa-Sancha,\n790 F.3d 312, 327 (1st Cir. 2015) (citing U.S. v. Zannino, 895\nF.2d 1, 17 (1st Cir. 1990)); McCoy v. Mass. Inst. of Tech., 950\nF.2d 13, 22 (1st Cir. 1991). Regardless, it lacks merit.\n\n\n - 17 -\n\fPronovost. Gilbert derived this information from the special\n\nknowledge obtained during the course of his employment. The\n\nparties involved in the gun incident were two work colleagues --\n\nthat is, Pronovost and Gilbert. And, although Gilbert does not\n\nspecify where precisely this confrontation occurred, inferentially\n\nfrom the complaint, it happened at work. Additionally, his speech\n\nwas made up the chain of command, in Gilbert's words, \"to\n\nmanagement.\" After Charette, \"an executive\" as Gilbert tells us,\n\nordered him to draft the report, it was then turned over to the\n\ninvestigator, hired by the City, who requested any and all\n\ndocumentation related to Jebb's conduct. This type of\n\ncommunication -- complaints or concerns made up the chain of\n\ncommand -- is the quintessential example of speech that owes its\n\nexistence to a public employee's official responsibilities and\n\nthus is not protected under the First Amendment. See, e.g.,\n\nDecotiis v. Whittemore, 635 F.3d at 32 (suggesting that speech an\n\nemployee is \"authorized or instructed to make\" is \"made pursuant\n\nto [his] job duties in the most literal sense\") (citations\n\nomitted); see also Kimmett v. Corbett, 554 F. App'x 106, 112 (3d\n\nCir. 2014); Hagen v. City of Eugene, 736 F.3d 1251, 1258 (9th Cir.\n\n2013); Davis v. McKinney, 518 F.3d 304, 315-16 (5th Cir. 2008).\n\nMoreover, nowhere in his complaint does Gilbert assert or even\n\nsuggest that he spoke publicly about this report. On the contrary,\n\nthis particular statement Gilbert uttered concerning the gun-\n\n\n - 18 -\n\fpointing incident was communicated, either in accordance with\n\npolice department procedure or because of police department\n\ndirective, solely internally.\n\n As for Gilbert's other instances of speech involving his\n\ngrievances against fellow officers or public officials, because it\n\nis clear from his complaint that they arose in essentially the\n\nsame police department internal affairs context, the reasoning is\n\nthe same. Therefore, we are looking at quintessential employment-\n\nrelated speech made pursuant to official duties. See O'Connell v.\n\nMarrero-Recio, 724 F.3d 117, 123 (1st Cir. 2013) (noting that\n\nspeech solely focused on workplace events and made to fulfill work\n\nresponsibilities is \"the quintessential example of speech that\n\nowes its existence to a public employee's professional\n\nresponsibilities and thus is not protected under the First\n\nAmendment\"). As such, Gilbert is unable to state a plausible claim\n\nfor relief that he spoke as a citizen regarding matters of public\n\nconcern rather than as an employee simply carrying out his job-\n\nrelated responsibilities. Our First Amendment inquiry ends there.9\n\n\n 9\n The City and Kos also argue (anticipatorily) that, to the\nextent Gilbert is attempting to liken this case to Lane v. Franks,\n573 U.S. 228 (2014), his argument fails. As the City and Kos tell\nus, the Supreme Court held that \"[t]ruthful testimony under oath\nby a public employee outside the scope of his ordinary job duties\nis speech as a citizen for First Amendment purposes . . . even\nwhen the testimony relates to his public employment or concerns\ninformation learned during that employment.\" Lane, 573 U.S. at\n238. According to Kos and the City, because Gilbert does not\n\n\n\n - 19 -\n\f2. Municipal Liability Claim\n\n To make out a municipal liability claim, Gilbert would\n\nhave to first prove a viable First Amendment retaliation claim,\n\nsatisfying Garcetti's three-part inquiry. But because we conclude\n\nthat no constitutional injury was inflicted, it is unnecessary to\n\nconsider Gilbert's municipal liability claim. See Evans v. Avery,\n\n100 F.3d 1033, 1039 (1st Cir. 1996) (citing City of Los Angeles v.\n\nHeller, 475 U.S. 796, 799 (1986)); see, e.g., Wagner v. Devine,\n\n122 F.3d 53, 57 (1st Cir. 1997).\n\n3. State Law Claims Against Kos\n\n Gilbert argues that the district court erred in\n\ndismissing the state law claims against Kos.10 He says that his\n\ncomplaint \"pled plausible and sufficient facts against Defendant\n\nKos . . . as to his abuse of process claim[] (Count 4), intentional\n\ninfliction of emotional distress claim (Count 6), malicious\n\n\n\n\nallege that he testified under oath pursuant to a subpoena, Lane\ndoes not aid his cause. They also contend that Gilbert is unlike\nthe plaintiff in Lane because sworn testimony, as opposed to\ninternal reporting within the walls of a public employer, has a\ncitizen element. Given that Gilbert never mentions Lane in his\nopening brief, even though the district court addressed it in its\nMemorandum and Order Regarding Defendants' Motions to Dismiss, and\nsince even in his reply brief, he never explains why he is\nsimilarly situated to Lane, we need say no more.\n\n 10 Gilbert does not challenge the district court's exercise\nof discretion in deciding to rule on the merits of his state law\nclaims against Kos. He thus waives any argument that the district\ncourt abused its discretion.\n\n\n - 20 -\n\fprosecution claim (Count 7), and civil conspiracy claim[] (Count\n\n8)[.]\" We disagree.\n\n Gilbert mentions Kos only in a handful of places when\n\npleading the facts in the complaint, and when he does, it is, to\n\ndescribe it charitably, skimpy. For example, Gilbert nakedly\n\nasserts that Kos \"acquiesced to Defendant Jebb's conduct,\" but he\n\ndoes not flesh out how (or when or where) he did so. Likewise,\n\nGilbert asserts that after Kos \"appointed Defendant Jebb to Police\n\nChief, the Defendants jointly engaged in conduct attempting to\n\ncommand a voluntary separation of employment by the Plaintiff with\n\nthe City of Chicopee\" but he alleged no detailed facts that would\n\nenable a court to draw the reasonable inference that Kos was liable\n\nfor the misconduct alleged. To boot, as the district court noted,\n\nmuch of the complaint refers to events that occurred before Kos\n\nbecame Chicopee's mayor. For these reasons, the state law claims\n\nagainst Kos were properly dismissed. Citizens Awareness Network,\n\nInc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284, 293–94 (1st\n\nCir. 1995); see also Agema v. City of Allegan, 826 F.3d 326, 332-\n\n33 (6th Cir. 2016); Santiago v. Warminster Twp., 629 F.3d 121, 131\n\n(3d Cir. 2010); McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th\n\nCir. 1997).\n\n\n\n\n - 21 -\n\f CONCLUSION\n\n We affirm11 and award costs to appellees. Over and\n\nout.\n\n\n\n\n 11\n Because we conclude Gilbert's claims fail to survive Rule\n12(b)(6) muster, we need not address appellees' alternative\ntheories of defense.\n\n\n - 22 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366294/", "author_raw": "THOMPSON, Circuit Judge."}]} | HOWARD | TORRUELLA | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589041/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Mark GILBERT, Plaintiff, Appellant, v. CITY OF CHICOPEE; William Jebb; John Pronovost; Richard J. Kos, Defendants, Appellees, John Doe; Jane Doe, Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2206\n\n MARK GILBERT,\n\n Plaintiff, Appellant,\n\n v.\n\n CITY OF CHICOPEE; WILLIAM JEBB; JOHN PRONOVOST; RICHARD J. KOS,\n\n Defendants, Appellees,\n\n JOHN DOE; JANE DOE,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Michael A. Ponsor, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n Shawn P. Allyn, with whom Allyn & Ball, P.C. was on brief,\nfor appellant Mark Gilbert.\n John J. McCarthy, with whom Doherty, Wallace, Pillsbury and\nMurphy, P.C. was on brief, for appellee William Jebb.\n John T. Liebel, with whom Law Office of John T. Liebel was on\nbrief, for appellee John Pronovost.\n Nancy Frankel Pelletier, with whom David S. Lawless and\nRobinson Donovan, P.C. were on brief, for appellees City of\nChicopee and Richard J. Kos.\n\fFebruary 8, 2019\n\f THOMPSON, Circuit Judge.\n\n PREFACE\n\n After a near decade-long saga within the fragmented City\n\nof Chicopee Police Department, Plaintiff-Appellant Mark Gilbert,\n\na Captain in the police department, sued a host of Defendants-\n\nAppellees, including the City of Chicopee, Police Chief William\n\nJebb, Mayor Richard J. Kos, and fellow police officer John\n\nPronovost, seeking redress under 42 U.S.C. § 1983 and various state\n\nlaws.1 From what we can glean, Gilbert claims his First Amendment\n\nrights were violated after appellees improperly targeted him for\n\n\"speaking out and participating in a government investigation.\"\n\nIn this appeal (which causes us to seriously ponder \"who's policing\n\nthe police?\"), Gilbert seeks reversal of the district court's\n\ndismissal of his claims pursuant to Federal Rule of Civil Procedure\n\n12(b)(6). Finding no reason to reverse, we close the curtain on\n\nthis workplace drama.\n\n GETTING OUR FACTUAL BEARINGS\n\n In sharing this tale, we construe the facts of the\n\ncomplaint in the light most favorable to Gilbert. Ocasio–Hernández\n\nv. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011) (citing Fed. R.\n\nCiv. P. 12(b)(6)). While doing so, we observe, as did the district\n\n\n 1 Although Gilbert named Defendants Jane and John Doe in the\ncaption of his amended complaint, they were not mentioned in its\nbody.\n\n\n\n - 3 -\n\fcourt, that Gilbert's one-hundred-eighty-one paragraph complaint\n\nis particularly difficult to follow.2 Because the district court\n\nalready parsed as best it could the facts drawn from Gilbert's\n\ncomplaint and gave the narrative some coherence, we provide and\n\nadopt the district court's recitation of facts contained in its\n\nNovember 14, 2017 Memorandum and Order Regarding Defendants'\n\nMotions to Dismiss (and we thank the district court for its\n\nherculean effort).\n\n Over at least the past decade, [Gilbert] has been\n a police officer for the City of Chicopee. Defendants\n Jebb and Pronovost were fellow officers during this\n time. In 2007, Defendant Pronovost fell into a\n depression after his wife died, and he began behaving\n strangely at work.[*] At some point, [Gilbert]\n complained about this behavior to [] Jebb, who was at\n the time Captain of his shift. Nothing was done in\n response to [Gilbert]'s complaint. Thereafter, on an\n unspecified date in December, [Gilbert] and Pronovost\n\n 2 The district court underscored that Gilbert's \"complaint\nwavers back and forth chronologically and sometimes offers\ndisconnected narratives, with links between the factual\nallegations and [Gilbert]'s supposed injuries often difficult to\ndiscern.\" Gilbert v. City of Chicopee, No. 3:16-cv-30024-MAP,\n2017 WL 8730474, at *1 (D. Mass. Nov. 14, 2017). Indeed,\n\"[i]mportant details confusingly appear for the first time only\nafter the Statement of Facts.\" Id. at *4 (emphasis in original).\nFor example, the district court pointed to \"a reference to an email\nsent by Defendant Jebb regarding one 'Lieutenant Watson' on\nSeptember 12, 2014\" that \"appears out of the blue in the text of\nCount 3\" and noted that \"critical factual details, such as the\ntiming and nature of the supposed 'pretextual discipline' are\nsimply absent from the complaint.\" Id.\n\n [*] We pause to note this strange behavior Gilbert speaks of\ntook place in the Police Department's booking and cellblock areas\nand involved Pronovost's efforts to communicate with the dead using\ncrystal rocks tied to strings, and hardware store lights which he\ncalled \"ghost traps.\"\n\n\n - 4 -\n\fgot into an argument about Pronovost's behavior. During\nthe interchange, Pronovost allegedly pulled out his gun\nand pointed it at [Gilbert]. [Gilbert] verbally\nreported the incident to his commanding officer Thomas\nCharette.2\n\n 2[Gilbert] alleges that Jebb was in the\n room with [him] and Pronovost during this\n incident. However, [] Jebb disputes\n [Gilbert]'s version, stating that the event in\n question \"never happened.\"\n\nAgain, nothing was done.\n\n In 2012, [Gilbert] was promoted to the rank of\nCaptain, and Charette was appointed Acting Police Chief.\nDefendant Jebb, also a candidate for Acting Police\nChief, allegedly resented Charette and other police\nofficers, including [Gilbert], who he believed had\nsupported Charette's appointment.\n\n That same year, certain Chicopee Police Officers\nresponding to a murder scene took pictures of the\nvictim's body and shared them with one another and with\ncivilians outside the police department in violation of\ndepartment regulations. At the time, Defendant Jebb was\nthe Internal Affairs Investigative Officer tasked with\ninvestigating this incident. Jebb concluded that only\none officer was responsible for the improper conduct,\nand he failed to recommend, in [Gilbert]'s view, a\nsufficiently stringent sanction.\n\n At some point in the 2012-2013 time frame, the\ninvestigation into the murder scene misconduct by\nChicopee Police Officers resumed. This time the inquiry\nincluded an incident where photographs of the murder\nvictim's corpse were allegedly displayed to civilians\noutside the police department at a football game.\n\n In May 2013, Jebb was relieved of his duties with\nInternal Affairs, and he himself became a target of an\ninvestigation into his conduct as the Internal Affairs\nInvestigative Officer. This second investigation\nfocused, in part, on allegations that Jebb failed to\nlook into sexual harassment charges against several\nofficers. It also looked into whether Jebb had properly\n\n\n\n - 5 -\n\finvestigated the officers who had distributed the\ngruesome photographs from the murder scene.\n\n Jebb had made an unsuccessful bid for the office of\nPresident of the Police Union in 2013, and the complaint\nrefers to an allegation that he improperly numbered the\nballots in that election in order to be able to identify\nwhich officers supported him and which supported his\nopponent, Sgt. Dan Major. Finally, [] Jebb was also\naccused of hiding evidence to thwart an internal\ninvestigation into allegations that Sgt. Major had\nchoked a prisoner.3\n\n 3\"[Gilbert]'s complaint implies that\n these charges formed part of the\n investigation(s) then pending against Jebb and\n not merely allegations on [Gilbert]'s part\n offered in this litigation. (Dkt. No. 72 at 3-\n 4). Although the complaint is ambiguous on\n this point,[] Jebb and Kos's Memoranda in\n support of their Motions to Dismiss clarify\n the context to some extent. Jebb's Memorandum\n notes that [Gilbert] made \"written statements\n and testimony . . . to a government\n investigator relating to Jebb's alleged\n mishandling of ballots.\" (Dkt. No. 28 at 1).\n Kos's Memorandum observes that [Gilbert], \"as\n a police captain and internal affairs\n investigator had investigated Chief Jebb's\n removal of evidence from the booking room.\"\n\n[Gilbert] had been the investigating officer for the\nMajor investigation, and he had recommended no\ndiscipline be taken against Sgt. Major . . . . [Gilbert]\ncharacterizes his participation in the ongoing\ninvestigations to include \"provid[ing] information and\nparticipat[ing] in activity which focused on Police\nChief William Jebb's conduct and practices of\nimplementing less than proper discipline towards his\nfriends and retaliating against those he was not friends\nwith; and those who did not vote for him to be the Union\nPresident.\" (Dkt. No. 67-2 at 1).\n\n In July 2013, then-Acting Police Chief Charette\nasked [Gilbert] to draft and file a written incident\nreport about the episode six years earlier when []\nPronovost had threatened [Gilbert] with his gun.\n\n\n - 6 -\n\f[Gilbert] did so. The report was technically late, in\nviolation of Department policy, but Charette did not\ndiscipline [Gilbert], as [Gilbert] had verbally reported\nthe incident to Charette and another of his immediate\nsupervisors at the time it occurred.\n\n According to [Gilbert], [] Jebb was unhappy with\n[Gilbert]'s participation in the ongoing investigation\nof the gun incident and possibly other incidents. On\nOctober 15, 2013, [Gilbert] received a phone call from\n[] Jebb in which the latter told him, \"You have no idea\nabout internal affairs, but you are going to learn. I\nam definitely without a doubt going to win my appeal\n[regarding his having been passed over for Acting Chief]\nand when I do, your [sic] fucked.\" (Dkt. No. 67-3 at 1).\n\n In 2014, [] Mayor Kos appointed [] Jebb as Police\nChief. [Gilbert] alleges that thereafter Jebb \"began\nchanging [Gilbert's] terms and conditions of employment\nand engaged in a concerted effort to have criminal\ncharges initiated against [him].\" (Dkt. No. 72 at 9).\n[Gilbert] claims [] Jebb ordered him off all of his\novertime details, citing as a reason [Gilbert]'s filing\nof a false police report in regard to the 2007 gun\nincident. [He] claims that [] Jebb repeatedly\n\"initiat[ed] pretextual discipline\" against him, but he\ndoes not provide details or state when this occurred.\nIn any event, the [amended] complaint specifies no\ndisciplinary sanctions resulting from these proceedings.\n\n Around this time, according to the complaint, []\nJebb met with [] Kos and Pronovost as part of a\nconspiracy to bring retaliatory criminal charges against\n[Gilbert] and Charette. Charges were eventually brought\nagainst [Gilbert] in Holyoke District Court, perhaps for\nfiling a False Police Report. It is difficult to tell\nfrom the amended complaint, which does not provide a\ndate these charges were brought, what exactly those\ncharges were, or how the criminal case resolved. Count\n4 in the amended complaint states that [Gilbert] was\ncharged with Filing a False Police, which presumably is\nthe criminal case [Gilbert] is referring to.\nAdditionally, Gilbert states that the \"process\nterminated in [his] favor,\" (Dkt. No. 72 at 17), though\nit is not clear if that means he was acquitted of the\ncharge after a trial or the charge was dropped.\n\n\n\n - 7 -\n\fGilbert, 2017 WL 8730474 at *1-3.\n\n WHAT HAPPENED IN THE DISTRICT COURT\n\n Gilbert filed his federal complaint on February 4, 2016,\n\nto which the defendants responded with Rule 12(b)(6) motions to\n\ndismiss. Gilbert then sought leave to amend the complaint, which\n\nthe district court allowed on March 7, 2017 (but struck the\n\nproposed amended complaint due to its \"extreme sloppiness\"). Three\n\ndays later, Gilbert filed the operative amended complaint (which\n\nwe refer to herein as \"the complaint\") in which he asserted eight\n\ncounts:\n\n Count 1: a claim under 42 U.S.C. § 1983 and Mass. Gen.\n\n Laws ch. 12, § 11H against all defendants individually for\n\n retaliating against him for exercising his First Amendment\n\n rights to speak on a matter of public concern and for due process\n\n rights violations;3\n\n Count 2: a claim under 42 U.S.C. § 1983 against the\n\n City for maintaining policies and customs that resulted in the\n\n violation of Gilbert's First Amendment rights;\n\n Count 3: a claim under Mass. Gen. Laws ch. 149, § 185\n\n (the Massachusetts whistleblower statute) against the City,\n\n\n\n 3 In Count 1 of his complaint, Gilbert conclusorily states,\n\"The Defendants acting under the color of state law violated the\nPlaintiff's due process rights . . . .\" He does not allege anything\nfurther and his brief is completely silent as to this claim. We\nthus deem any due process arguments waived.\n\n\n - 8 -\n\f Police Chief Jebb, and Mayor Kos for taking retaliatory actions\n\n against Gilbert;\n\n Counts 4 through 8: common law claims against all\n\n defendants individually for Abuse of Process, Defamation,\n\n Intentional Infliction of Emotional Distress, Malicious\n\n Prosecution, and Civil Conspiracy.\n\n In due course, the defendants renewed their dismissal\n\nmotions, which the district court ultimately granted.4 In\n\nconsidering Gilbert's Count 1 First Amendment claim which got\n\ntossed with prejudice as to all defendants, the district court\n\nstruggled to identify the exact speech Gilbert alleged to be\n\nprotected: \"This is not a case where Plaintiff wrote a letter or\n\nspoke out at a public meeting. Exactly what Plaintiff said, and\n\nwhen, is left very vague.\" Gilbert, 2017 WL 8730474 at *5. But\n\nafter generously combing through the complaint, the district court\n\ndetermined that the speech Gilbert most emphasized as warranting\n\nFirst Amendment protections was the July 19, 2013 written report,\n\nin which he described the 2007 gun-pointing incident involving\n\nPronovost and Gilbert. And to the extent the July report was the\n\n\"speech\" in question, the district court reasoned it was offered\n\npursuant to Gilbert's official duties as a police officer and\n\n\n 4 In so holding, the district court dismissed all claims\nagainst John Doe and Jane Doe with prejudice since those defendants\nwere not named anywhere in the body of the amended complaint.\n\n\n\n - 9 -\n\fpublic employee, and not as a private citizen, and, therefore, not\n\nafforded First Amendment protections.\n\n The district court also dismissed with prejudice Count\n\n2's municipal liability claim. To succeed on this claim Gilbert\n\nhad to \"offer sufficient facts to permit the court to identify an\n\nunconstitutional custom or policy of the city that was the moving\n\nforce behind the injury alleged.\" Gilbert, 2017 WL 8730474 at *6\n\n(quoting Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011))\n\n(citation and internal quotation marks omitted). The district\n\ncourt found that although the complaint conveyed Gilbert's sense\n\nof grievance about general misconduct at the police department it\n\nfailed to \"articulate a specific municipal custom or policy[] or\n\nto offer concrete allegations demonstrating its existence.\" Id.\n\n After rejecting Gilbert's federal claims, the district\n\ncourt declined to exercise supplemental jurisdiction over Counts\n\n3 through 8 state law claims save the ones involving Kos: those\n\ngot dismissed with prejudice. As to them, the district court found\n\nthat Gilbert either complained about events which occurred before\n\nKos was elected mayor or made conjectural and speculative\n\nallegations devoid of any facts which could support a viable cause\n\nof action.\n\n And here we are.\n\n\n\n\n - 10 -\n\f STANDARD OF REVIEW\n\n We review the district court's ruling on a motion to\n\ndismiss de novo, accepting all well-pled facts in the complaint as\n\ntrue, and drawing all reasonable inferences in favor of the\n\nplaintiff. Ocasio-Hernández, 640 F.3d at 7; Gargano v. Liberty\n\nInt'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). To\n\nsurvive a motion to dismiss under Rule 12(b)(6), the complaint\n\nmust give the defendant fair notice of what the claim is and the\n\nground upon which it rests and allege a plausible entitlement to\n\nrelief. Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011).\n\nDismissal for failure to state a claim is warranted when the\n\ncomplaint lacks \"sufficient factual matter . . . to 'state a claim\n\nto relief that is plausible on its face.'\" Ashcroft v. Iqbal, 556\n\nU.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.\n\n544, 570 (2007)). We make this determination through a holistic,\n\ncontext-specific analysis of the complaint. See Iqbal, 556 U.S.\n\nat 679; Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009).\n\nNevertheless, the plausibility standard \"asks for more than a sheer\n\npossibility that a defendant has acted unlawfully.\" Iqbal, 556\n\nU.S. at 678 (citing Twombly, 550 U.S. at 556).\n\n Also relevant here (in part) is this: when the district\n\ncourt \"accurately takes the measure of a case, persuasively\n\nexplains its reasoning, and reaches a correct result, it serves no\n\nuseful purpose for a reviewing court to write at length in placing\n\n\n - 11 -\n\fits seal of approval on the decision below.\" Moses v. Mele, 711\n\nF.3d 213, 216 (1st Cir. 2013).\n\n With these standards in mind, we turn to the limited\n\nissues presented on appeal. Did the district court blunder, as\n\nGilbert contends, in dismissing Count 1 against Kos, Jebb, and\n\nPronovost, Count 2 against the City, and most of the state law\n\nclaims against Kos?5\n\n ANALYSIS6\n\n1. First Amendment Retaliation Claim\n\n We begin our analysis with Gilbert's claim that \"[t]he\n\nDefendants acting under the color of state law violated and\n\n\n\n\n 5 Gilbert is not appealing the dismissal of Count 5.\n\n 6 Pronovost argues that we have no jurisdiction to review the\ndistrict court's November 14, 2017 order granting the defendants'\nmotions to dismiss because Gilbert's notice of appeal is defective,\nin violation of Federal Rule of Appellate Procedure 3(c)(1)(B).\nTrue, Gilbert's notice of appeal stated that he appealed from\nDocket #86, which is the district court judge's Memorandum and\nOrder, instead of Docket #87, which is the Order of Dismissal. We\nreject Pronovost's contention. That Gilbert mixed up the dismissal\norder's docket number is of no matter in this instance because\n\"[a] mistake in designating a judgment . . . in the notice of\nappeal ordinarily will not result in loss of the appeal as long as\nthe intent to appeal a specific judgment can be fairly inferred\nfrom the notice and the appellee is not misled by the mistake.\"\nIn re Spookyworld, Inc., 346 F.3d 1, 6 (1st Cir. 2003) (quoting\nKelly v. United States, 780 F.2d 94, 96 n.3 (1st Cir. 1986)).\nHere, Gilbert's intent is unambiguous. From the face of the notice\nof appeal, Gilbert specified that he sought to appeal \"from the\nDistrict Court's Order entered November 14, 2017 . . . allowing\nDefendants' Motion to Dismiss and dismissing Plaintiff's\nComplaint.\" Thus, we conclude that we have jurisdiction to review\nthe district court's dismissal order.\n\n\n - 12 -\n\fretaliated against the Plaintiff for exercising his First\n\nAmendment rights and in retaliation for speaking out and\n\nparticipating in a government investigation.\" As Gilbert tells\n\nit, he was removed from working all overtime hours, subjected to\n\na criminal proceeding, and suspended from the police department in\n\nretaliation for voicing his protected speech.\n\n But before diving into the merits, we pause to again\n\nnote our agreement with the district court's observation: our de\n\nnovo review of Gilbert's First Amendment claim is handcuffed by\n\nthe lack of specificity regarding exactly what speech underlies\n\nhis claim. Gilbert's complaint muddlingly sketches a litany of\n\noccasions spanning years during which he griped to superiors and\n\ninvestigators, orally and in writing, about the professional\n\nbehavior of his colleagues or public officials. Through their\n\nbriefing the appellees give us a clue as to their understanding of\n\nGilbert's complaint. For their part, the City, Jebb, Kos, and\n\nPronovost suggest that they, like the district court, understand\n\nGilbert's most significant at-issue speech to refer to the July\n\n2013 written report of Pronovost misusing his firearm. However,\n\nwhether we view Gilbert's complaint as encompassing one or multiple\n\nevents of speaking out, the result is the same. He fails to state\n\na First Amendment claim.\n\n In general, government officials may not subject \"an\n\nindividual to retaliatory actions . . . for speaking out.\"\n\n\n - 13 -\n\fMercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 25 (1st Cir. 2010)\n\n(quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)). This is so\n\nbecause \"[p]ublic employees do not lose their First Amendment\n\nrights to speak on matters of public concern simply because they\n\nare public employees.\" Rodriguez-Garcia v. Miranda-Marin, 610\n\nF.3d 756, 765 (1st Cir. 2010) (quoting Curran v. Cousins, 509 F.3d\n\n36, 44 (1st Cir. 2007)). However, \"in recognition of the\n\ngovernment's interest in running an effective workplace,\" those\n\nrights are not absolute. Decotiis, 635 F.3d at 29 (quoting\n\nMercado-Berrios, 611 F.2d at 26); see also Garcetti v. Ceballos,\n\n547 U.S. 410, 418 (2006).\n\n To determine whether an adverse employment action\n\nagainst a public employee violated an individual's First Amendment\n\nfree speech rights, we employ a three-part inquiry. See Rodriguez-\n\nGarcia, 610 F.3d at 765-66. First, we must assess whether Gilbert\n\n\"spoke as a citizen on a matter of public concern.\" Curran, 509\n\nF.3d at 45 (quoting Garcetti, 547 U.S. at 418). In making this\n\ndetermination, we ask whether the \"speech\" underlying Gilbert's\n\nclaim was made \"pursuant to his official duties.\" Garcetti, 547\n\nU.S. at 421. In considering this question, we look to several\n\n\"non-exclusive factors,\" which help distinguish speech by a public\n\nemployee in a professional versus a private capacity. These\n\ninclude:\n\n\n\n\n - 14 -\n\f whether the employee was commissioned or paid to make\n the speech in question; the subject matter of the speech;\n whether the speech was made up the chain of command;\n whether the employee spoke at her place of employment;\n whether the speech gave objective observers the\n impression that the employee represented the employer\n when she spoke (lending it \"official significance\");\n whether the employee's speech derived from special\n knowledge obtained during the course of her employment;\n and whether there is a so-called citizen analogue to the\n speech.\n\nDecotiis, 635 F.3d at 32 (internal citations omitted). If we\n\nconclude, as we do, after applying these factors, that Gilbert’s\n\nspeech was made \"pursuant to his official duties,\" then Gilbert\n\nhas no First Amendment claim, since, generally, \"[r]estricting\n\nspeech that owes its existence to a public employee's professional\n\nresponsibilities does not infringe any liberties.\" Garcetti, 547\n\nU.S. at 421-22.7\n\n Because Gilbert's claim founders at the first prong of\n\nthe Garcetti inquiry -- that is, whether Gilbert \"spoke as a\n\n\n\n\n 7 Hadwe concluded that Gilbert made the speech in his private\ncapacity, then we would have proceeded to the second requirement\nand balanced Gilbert's interest in speaking as a private citizen\nregarding matters of public concern with the interest of the\ngovernment, as an employer, in promoting the efficiency of the\npublic services it performs. See Decotiis, 635 F.3d at 29 (citing\nPickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Then under\nthe third requirement, Gilbert would have to have shown that the\nspeech was a substantial or motivating factor in the adverse\nemployment decision. See Curran, 509 F.3d at 45. If all three\nparts of the inquiry had been resolved in Gilbert's favor, the\ndefendants could still escape liability if they had shown the same\ndecision would have been reached even absent the protected conduct.\nRodriguez-Garcia, 610 F.3d at 765-66 (citing Mt. Healthy City Sch.\nDist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).\n\n\n - 15 -\n\fcitizen on a matter of public concern\" -- we decline to reach the\n\nsecond and third prongs.\n\n As to Gilbert's federal constitutional claim, it is\n\npremised solely on his assertion that his speech involved matters\n\nof public concern and thus enjoys First Amendment protections.\n\nAccording to him \"[i]t is in the interest of the police department,\n\nand the general public, to ensure that officers take considerable\n\ncare in how they handle their service weapons.\" And of public\n\nconcern is \"the failure to properly address police misconduct,\n\nwhich has the potential to impact the larger public.\" Gilbert\n\ncontinues -- failing to \"investigate sexual harassment\n\ncomplaints,\" exuding \"leniency in investigating officers who\n\ndistributed photographs\" of a corpse, and removing evidence from\n\nan evidence room \"for the purpose of interfering with an IIU\n\ninvestigation\" would also rise to the level of creating a public\n\nconcern for the citizens of Chicopee.\n\n In response, the appellees argue that the district court\n\ngot it just right: it properly dismissed Gilbert's First Amendment\n\nclaim because all of Gilbert's speech was compelled as part of his\n\nemployment and thus was made within the scope of his official\n\nduties rather than as a citizen.8 We agree.\n\n\n 8 In his brief, Gilbert tells us that the Decotiis factors\nwhich we enumerated above are the analytical tools we must use to\ndetermine whether Gilbert spoke in his capacity as a citizen or\n\n\n\n - 16 -\n\f Applying the Decotiis factors spelled out above, there\n\nis no plausible inference which can be drawn from the complaint\n\nthat Gilbert's statements were made in his capacity as a citizen.\n\n Explicating first on the July 2013 report, Gilbert\n\nacknowledges in the complaint that he wrote the report in response\n\nto an \"order,\" and that he \"would have been disciplined for\n\nrefusing to follow a command if he refused\" to write the report.\n\nHe makes clear that he \"did not initiate the subject complaints\n\nagainst Defendant Jebb . . . [and that the] City of Chicopee,\n\nthrough its executive [i.e., Charette], created this issue by\n\nordering [Gilbert] to provide a summary of these events again to\n\nmanagement.\" Further, the subject matter about which he spoke\n\nconcerned the gun incident and Pronovost's conduct \"in the work\n\nplace\" -- that is, bringing crystal rocks and setting up\n\n\"ghost traps\" in the booking area and cells of inmates at the\n\npolice station. The content of the July report also includes a\n\ndiscussion about another work colleague -- Jebb -- whom Gilbert\n\ntold about the incident and allegedly failed to properly discipline\n\n\n\n\npursuant to his official duties. And his brief is replete with\nwhy his words should be deemed of public concern. Yet Gilbert\nnever bothers either in his initial brief or reply brief to provide\nus with any reasoned explanation for why we should deem his speech\nthat of a private citizen under the Decotiis test. Therefore, his\nargument is likely waived. Fernandez-Salicrup v. Figueroa-Sancha,\n790 F.3d 312, 327 (1st Cir. 2015) (citing U.S. v. Zannino, 895\nF.2d 1, 17 (1st Cir. 1990)); McCoy v. Mass. Inst. of Tech., 950\nF.2d 13, 22 (1st Cir. 1991). Regardless, it lacks merit.\n\n\n - 17 -\n\fPronovost. Gilbert derived this information from the special\n\nknowledge obtained during the course of his employment. The\n\nparties involved in the gun incident were two work colleagues --\n\nthat is, Pronovost and Gilbert. And, although Gilbert does not\n\nspecify where precisely this confrontation occurred, inferentially\n\nfrom the complaint, it happened at work. Additionally, his speech\n\nwas made up the chain of command, in Gilbert's words, \"to\n\nmanagement.\" After Charette, \"an executive\" as Gilbert tells us,\n\nordered him to draft the report, it was then turned over to the\n\ninvestigator, hired by the City, who requested any and all\n\ndocumentation related to Jebb's conduct. This type of\n\ncommunication -- complaints or concerns made up the chain of\n\ncommand -- is the quintessential example of speech that owes its\n\nexistence to a public employee's official responsibilities and\n\nthus is not protected under the First Amendment. See, e.g.,\n\nDecotiis v. Whittemore, 635 F.3d at 32 (suggesting that speech an\n\nemployee is \"authorized or instructed to make\" is \"made pursuant\n\nto [his] job duties in the most literal sense\") (citations\n\nomitted); see also Kimmett v. Corbett, 554 F. App'x 106, 112 (3d\n\nCir. 2014); Hagen v. City of Eugene, 736 F.3d 1251, 1258 (9th Cir.\n\n2013); Davis v. McKinney, 518 F.3d 304, 315-16 (5th Cir. 2008).\n\nMoreover, nowhere in his complaint does Gilbert assert or even\n\nsuggest that he spoke publicly about this report. On the contrary,\n\nthis particular statement Gilbert uttered concerning the gun-\n\n\n - 18 -\n\fpointing incident was communicated, either in accordance with\n\npolice department procedure or because of police department\n\ndirective, solely internally.\n\n As for Gilbert's other instances of speech involving his\n\ngrievances against fellow officers or public officials, because it\n\nis clear from his complaint that they arose in essentially the\n\nsame police department internal affairs context, the reasoning is\n\nthe same. Therefore, we are looking at quintessential employment-\n\nrelated speech made pursuant to official duties. See O'Connell v.\n\nMarrero-Recio, 724 F.3d 117, 123 (1st Cir. 2013) (noting that\n\nspeech solely focused on workplace events and made to fulfill work\n\nresponsibilities is \"the quintessential example of speech that\n\nowes its existence to a public employee's professional\n\nresponsibilities and thus is not protected under the First\n\nAmendment\"). As such, Gilbert is unable to state a plausible claim\n\nfor relief that he spoke as a citizen regarding matters of public\n\nconcern rather than as an employee simply carrying out his job-\n\nrelated responsibilities. Our First Amendment inquiry ends there.9\n\n\n 9\n The City and Kos also argue (anticipatorily) that, to the\nextent Gilbert is attempting to liken this case to Lane v. Franks,\n573 U.S. 228 (2014), his argument fails. As the City and Kos tell\nus, the Supreme Court held that \"[t]ruthful testimony under oath\nby a public employee outside the scope of his ordinary job duties\nis speech as a citizen for First Amendment purposes . . . even\nwhen the testimony relates to his public employment or concerns\ninformation learned during that employment.\" Lane, 573 U.S. at\n238. According to Kos and the City, because Gilbert does not\n\n\n\n - 19 -\n\f2. Municipal Liability Claim\n\n To make out a municipal liability claim, Gilbert would\n\nhave to first prove a viable First Amendment retaliation claim,\n\nsatisfying Garcetti's three-part inquiry. But because we conclude\n\nthat no constitutional injury was inflicted, it is unnecessary to\n\nconsider Gilbert's municipal liability claim. See Evans v. Avery,\n\n100 F.3d 1033, 1039 (1st Cir. 1996) (citing City of Los Angeles v.\n\nHeller, 475 U.S. 796, 799 (1986)); see, e.g., Wagner v. Devine,\n\n122 F.3d 53, 57 (1st Cir. 1997).\n\n3. State Law Claims Against Kos\n\n Gilbert argues that the district court erred in\n\ndismissing the state law claims against Kos.10 He says that his\n\ncomplaint \"pled plausible and sufficient facts against Defendant\n\nKos . . . as to his abuse of process claim[] (Count 4), intentional\n\ninfliction of emotional distress claim (Count 6), malicious\n\n\n\n\nallege that he testified under oath pursuant to a subpoena, Lane\ndoes not aid his cause. They also contend that Gilbert is unlike\nthe plaintiff in Lane because sworn testimony, as opposed to\ninternal reporting within the walls of a public employer, has a\ncitizen element. Given that Gilbert never mentions Lane in his\nopening brief, even though the district court addressed it in its\nMemorandum and Order Regarding Defendants' Motions to Dismiss, and\nsince even in his reply brief, he never explains why he is\nsimilarly situated to Lane, we need say no more.\n\n 10 Gilbert does not challenge the district court's exercise\nof discretion in deciding to rule on the merits of his state law\nclaims against Kos. He thus waives any argument that the district\ncourt abused its discretion.\n\n\n - 20 -\n\fprosecution claim (Count 7), and civil conspiracy claim[] (Count\n\n8)[.]\" We disagree.\n\n Gilbert mentions Kos only in a handful of places when\n\npleading the facts in the complaint, and when he does, it is, to\n\ndescribe it charitably, skimpy. For example, Gilbert nakedly\n\nasserts that Kos \"acquiesced to Defendant Jebb's conduct,\" but he\n\ndoes not flesh out how (or when or where) he did so. Likewise,\n\nGilbert asserts that after Kos \"appointed Defendant Jebb to Police\n\nChief, the Defendants jointly engaged in conduct attempting to\n\ncommand a voluntary separation of employment by the Plaintiff with\n\nthe City of Chicopee\" but he alleged no detailed facts that would\n\nenable a court to draw the reasonable inference that Kos was liable\n\nfor the misconduct alleged. To boot, as the district court noted,\n\nmuch of the complaint refers to events that occurred before Kos\n\nbecame Chicopee's mayor. For these reasons, the state law claims\n\nagainst Kos were properly dismissed. Citizens Awareness Network,\n\nInc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284, 293–94 (1st\n\nCir. 1995); see also Agema v. City of Allegan, 826 F.3d 326, 332-\n\n33 (6th Cir. 2016); Santiago v. Warminster Twp., 629 F.3d 121, 131\n\n(3d Cir. 2010); McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th\n\nCir. 1997).\n\n\n\n\n - 21 -\n\f CONCLUSION\n\n We affirm11 and award costs to appellees. Over and\n\nout.\n\n\n\n\n 11\n Because we conclude Gilbert's claims fail to survive Rule\n12(b)(6) muster, we need not address appellees' alternative\ntheories of defense.\n\n\n - 22 -\n[END_CASE]",
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8,619,566 | United States v. Adrián VÁZQUEZ-MÉNDEZ | United States v. Vázquez-Méndez | 2019-02-08 | No. 18-1107 | U.S. Court of Appeals for the First Circuit | {"judges": "Boudin, Howard, Lynch", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8598816/", "author_raw": ""}]} | BOUDIN | HOWARD | LYNCH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8619566/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: United States v. Adrián VÁZQUEZ-MÉNDEZ\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,589,549 | Rickie PATTON and Cathleen Marquardt, Plaintiffs, Appellees, v. Barry JOHNSON, Defendant, Appellant, and Steven Johnson, Individually and as Law Offices of Steven M. Johnson D/B/A the Johnson Law Firm, Co-Defendants. | Patton v. Johnson | 2019-02-11 | 18-1750P | U.S. Court of Appeals for the First Circuit | {"judges": "Barron, Souter, Selya", "parties": "", "opinions": [{"author": "Hon. William E. Smith, U.S. District Judge]", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1750\n\n RICKIE PATTON and CATHLEEN MARQUARDT,\n\n Plaintiffs, Appellees,\n\n v.\n\n BARRY JOHNSON,\n\n Defendant, Appellant,\n\n and\n\n STEVEN JOHNSON, individually and as LAW OFFICES OF\n STEVEN M. JOHNSON d/b/a THE JOHNSON LAW FIRM,\n\n Co-defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF RHODE ISLAND\n\n [Hon. William E. Smith, U.S. District Judge]\n [Hon. Patricia A. Sullivan, U.S. Magistrate Judge]\n\n\n Before\n\n Barron, Circuit Judge,\n Souter, Associate Justice,\n and Selya, Circuit Judge.\n\n\n Samuel D. Zurier for appellant.\n Matthew S. Dawson, with whom Lynch & Pine, Attorneys at Law,\nLLC was on brief, for appellees.\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the Supreme\nCourt of the United States, sitting by designation.\n\fFebruary 11, 2019\n\f SELYA, Circuit Judge. Over time, this case has become\n\na procedural motley. In its current iteration, defendant-\n\nappellant Barry Johnson emphasizes his association with the\n\nJohnson Law Firm (JLF) in attempting to compel the plaintiffs,\n\nRickie Patton and his wife Cathleen Marquardt, to arbitrate various\n\ntort claims (including their claims of legal malpractice). The\n\ndistrict court, adopting a magistrate judge's report and\n\nrecommendation (R&R)1 and applying principles of collateral\n\nestoppel derived from Rhode Island law, determined that the\n\nappellant was barred from relitigating his contention that the\n\nclaims should be heard before an arbitrator. The appellant assigns\n\nerror. After threading our way through the labyrinth of prior\n\nproceedings, we affirm.\n\nI. BACKGROUND\n\n We briefly rehearse the background and travel of the\n\ncase. In 2007, the plaintiffs retained defendants JLF and Steven\n\nM. Johnson to represent them in a products liability suit\n\nconcerning an allegedly defective hernia mesh device (Kugel Mesh).2\n\nThe parties executed an Attorney Representation Agreement (the\n\n\n\n\n 1\n The district court entered a brief order, which adopted and\nincorporated by reference the R&R. See Patton v. Johnson (Patton\nI), No. 17-259WES, 2018 WL 3655785, at *1 (D.R.I. Aug. 2, 2018).\nWe refer to the order and the R&R, together, as Patton I.\n 2 Despite their identical surnames, the appellant is not\n\nrelated to Attorney Stephen M. Johnson, who is the principal of\nJLF (his eponymous law firm).\n\n\n - 3 -\n\fARA), which contained a three-paragraph arbitration provision.\n\nThe plaintiffs did not, however, initial or otherwise specifically\n\nacknowledge the arbitration paragraphs.\n\n JLF filed the plaintiffs' products liability suit in the\n\nUnited States District Court for the Southern District of Texas.\n\nAs part of a centralized multi-district litigation proceeding, see\n\n28 U.S.C. § 1407, the suit was subsequently transferred to the\n\nDistrict of Rhode Island, where it joined more than 1,000 similar\n\nsuits brought against the Rhode Island-based Kugel Mesh\n\nmanufacturer. In due course, JLF hired the appellant as an\n\nemployed attorney. In that capacity, the appellant worked, inter\n\nalia, on the plaintiffs' suit.\n\n When the suit was settled in 2015, a dispute arose among\n\nthe plaintiffs, the appellant, JLF, and John Deaton (the Rhode\n\nIsland-based local counsel retained by JLF). Central to this\n\ndispute were representations allegedly made by the appellant\n\nconcerning settlement amounts. The dispute was not resolved, and\n\nthe appellant came to believe that the plaintiffs would be filing\n\na malpractice suit against him.\n\n In an attempt to get out in front of such a suit, the\n\nappellant — in April of 2016 — filed a civil action against JLF\n\nand Patton in a Texas state court seeking to compel arbitration\n\nbased on the provisions of the ARA. Patton challenged the court's\n\njurisdiction over his person, as did Deaton (who had been impleaded\n\n\n - 4 -\n\fby JLF). The Texas trial court rejected these jurisdictional\n\nchallenges, striking the special appearances made on behalf of\n\nboth Patton and Deaton. Deaton appealed, and the Texas Court of\n\nAppeals affirmed. See Deaton v. Johnson, No. 05-16-01221-CV, 2017\n\nWL 2991939, at *4 (Tex. App. July 14, 2017), review dismissed (Aug.\n\n10, 2018).\n\n While Deaton's appeal was pending, JLF initiated a\n\nJudicial Arbitration and Mediation Service (JAMS) arbitration\n\nproceeding against Patton in Fort Worth, Texas. The appellant was\n\nnot named as a party to the JAMS arbitration. Patton challenged\n\nJLF's right to arbitrate, arguing that the uninitialed arbitration\n\nparagraphs in the ARA were of no effect. By decision dated\n\nNovember 15, 2016, the arbitrator determined that the ARA did not\n\ncontain a valid and enforceable agreement to arbitrate.\n\nAccordingly, the arbitrator dismissed the JAMS proceeding.\n\n The plaintiffs made the next move. On April 3, 2017,\n\nthey sued the appellant, JLF, and JLF's principal in a Rhode Island\n\nstate court, asserting claims for malpractice, other torts, and\n\nunfair trade practices (all relating to the handling and settlement\n\nof the plaintiffs' Kugel Mesh suit). The defendants removed the\n\nsuit to the United States District Court for the District of Rhode\n\nIsland, noting diversity of citizenship and the existence of a\n\ncontroversy in the requisite amount. See 28 U.S.C. §§ 1332(a),\n\n1441. At roughly the same time, the appellant initiated a second\n\n\n - 5 -\n\fJAMS arbitration proceeding against Patton in Texas, premised upon\n\nthe arbitration provision in the appellant's 2013 employment\n\nagreement with JLF — an agreement to which the plaintiffs were not\n\nparties. By means of this proceeding, the appellant sought what\n\namounted to a declaration that the plaintiffs were bound to\n\narbitrate their claims against him. The appellant proceeded to\n\nfile a motion to compel arbitration in the United States District\n\nCourt for the Northern District of Texas.\n\n With this foundation in place, the appellant turned his\n\nattention to the Rhode Island case, moving to stay the civil action\n\nand compel arbitration pursuant to the Federal Arbitration Act\n\n(FAA). See 9 U.S.C. §§ 3,4. His motion sought to invoke the\n\narbitration provisions of both his 2013 employment agreement and\n\nthe ARA. While his motion was pending before the federal district\n\ncourt in Rhode Island, the federal district court in Texas denied\n\nthe appellant's motion to compel arbitration on the ground that\n\nthe 2013 employment agreement did not in any way bind Patton.\n\nConsequently, the court dismissed the Texas suit without\n\nprejudice.\n\n Back in Rhode Island, the appellant abandoned his\n\nreliance on the 2013 employment agreement. Nevertheless, he\n\ncontinued to pursue his motion to compel arbitration, relying\n\nexclusively on the uninitialed arbitration paragraphs contained in\n\nthe ARA. He alleged in relevant part that he was not a party to\n\n\n - 6 -\n\fthe first JAMS arbitration and, thus, was not bound by the decision\n\nof the first JAMS arbitrator (who had found the uninitialed\n\narbitration paragraphs in the ARA impuissant as to Patton). The\n\nplaintiffs opposed this motion, arguing that the appellant was in\n\nprivity with JLF and was therefore precluded from re-litigating\n\nthe issue of arbitrability under principles of collateral\n\nestoppel.\n\n The court below referred the appellant's motion to\n\ncompel arbitration to a magistrate judge, who applied Rhode Island\n\nlaw and concluded that principles of collateral estoppel\n\nforeclosed the appellant's attempt to invoke the arbitration\n\nprovision of the ARA. Accordingly, the magistrate judge\n\nrecommended that the appellant's motion to compel arbitration be\n\ndenied. See Patton I, 2018 WL 3655785, at *9. Represented by new\n\ncounsel, the appellant served written objections to the R&R, but\n\nthe district court overruled the objections, adopted the R&R, and\n\ndenied the motion to compel arbitration. See id. at *1. This\n\ntimely appeal followed.\n\nII. ANALYSIS\n\n Before beginning our analysis, we pause to smooth out a\n\nprocedural wrinkle. We then proceed to the merits.\n\n A. Judicial Review of the R&R.\n\n \"[A]s Article I judicial officers, magistrate judges\n\nordinarily may not decide motions that are dispositive either of\n\n\n - 7 -\n\fa case or of a claim or defense within a case.\" PowerShare, Inc.\n\nv. Syntel, Inc., 597 F.3d 10, 13 (1st Cir. 2010). While a\n\nmagistrate judge may decide a non-dispositive motion, see Fed R.\n\nCiv. P. 72(a), she may only make a recommended disposition of a\n\ndispositive motion, see Fed. R. Civ. P. 72(b).\n\n This dispositive/non-dispositive dichotomy has\n\nimplications for judicial review. When a magistrate judge issues\n\na recommended decision on a dispositive motion and an objection is\n\ninterposed, district court review is de novo. See id. By\n\ncontrast, when a magistrate judge enters an order resolving a non-\n\ndispositive motion and a first-tier appeal is taken to the district\n\ncourt, review is for clear error (that is, the district court must\n\naccept the magistrate judge's findings of fact and inferences drawn\n\ntherefrom unless those findings and inferences are clearly\n\nerroneous). See Fed. R. Civ. P. 72(a); Phinney v. Wentworth\n\nDouglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999).\n\n In this case, the magistrate judge treated the\n\nappellant's motion to compel arbitration as a dispositive motion\n\nand recommended a decision. See Patton I, 2018 WL 3655785, at *1.\n\nThis was error because a motion to compel arbitration is a non-\n\ndispositive motion. See PowerShare, 597 F.3d at 14. Accordingly,\n\nan order, not a recommended decision, would have been the\n\nappropriate vehicle for the magistrate judge's findings and\n\nconclusions.\n\n\n - 8 -\n\f But the district court came to the rescue: it recognized\n\nthis discrepancy and treated the R&R as an order. See Patton I,\n\n2018 WL 3655785 at *1. The district court's prophylactic action\n\ncured the defect and rendered any procedural error harmless. See\n\nUnited States v. Weissberger, 951 F.2d 392, 398 (D.C. Cir. 1991)\n\n(holding that district court's application of proper standard of\n\nreview \"cured any arguable defect\" in magistrate judge's order).\n\n That the error was harmless is all the more evident\n\nbecause the appellant's motion to compel turned on questions of\n\nlaw. See, e.g., PowerShare, 597 F.3d at 14 (explaining that\n\n\"interpreting a contractual term [is] a question of law for the\n\ncourts\"); Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978\n\n(1st Cir. 1995) (\"The applicability vel non of preclusion\n\nprinciples is a question of law.\"). This is significant because\n\na magistrate judge's answers to questions of law, whether rendered\n\nin connection with a dispositive motion or a non-dispositive\n\nmotion, engender de novo review. See PowerShare, 597 F.3d at 15\n\n(explaining that, for questions of law, \"there is no practical\n\ndifference between review under Rule 72(a)'s 'contrary to law'\n\nstandard and review under Rule 72(b)'s de novo standard\"). It\n\nfollows that whether the magistrate judge issued an R&R or an\n\norder, the district court was obliged to apply the same standard\n\nof review to the questions at issue.\n\n\n\n\n - 9 -\n\f B. The Merits.\n\n We review de novo the district court's denial of a motion\n\nto compel arbitration. See Nat'l Fed'n of the Blind v. The\n\nContainer Store, Inc., 904 F.3d 70, 78 (1st Cir. 2018); Kristian\n\nv. Comcast Corp., 446 F.3d 25, 31 (1st Cir. 2006). We may affirm\n\nthe district court's ruling \"on any independent ground made\n\napparent by the record.\" Escobar-Noble v. Luxury Hotels Int'l of\n\nP.R., Inc., 680 F.3d 118, 121 (1st Cir. 2012).\n\n To compel arbitration, the movant must demonstrate \"that\n\na valid agreement to arbitrate exists, that [he] is entitled to\n\ninvoke the arbitration clause, that the other party is bound by\n\nthat clause, and that the claim asserted comes within the clause's\n\nscope.\" InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003).\n\nHere, the first JAMS arbitrator answered the question of whether\n\nthe ARA contained a valid and enforceable arbitration agreement in\n\nthe negative, and the magistrate judge — applying Rhode Island law\n\n— concluded that this determination was entitled to preclusive\n\neffect. See Patton I, 2018 WL 3655785, at *1-2. The appellant\n\nlays siege to this conclusion.\n\n Some groundwork is helpful. \"Collateral estoppel,\n\nsometimes called issue preclusion, bars parties from re-litigating\n\nissues of either fact or law that were adjudicated in an earlier\n\nproceeding\" before a court or other tribunal of competent\n\njurisdiction. Robb Evans & Assocs., LLC v. United States, 850\n\n\n - 10 -\n\fF.3d 24, 31 (1st Cir. 2017); see Ramallo Bros. Printing, Inc. v.\n\nEl Día, Inc., 490 F.3d 86, 89 (1st Cir. 2007) (quoting S. Pac.\n\nR.R. Co. v. United States, 168 U.S. 1, 48 (1897)). The doctrine\n\nserves the \"dual purpose of protecting litigants from the burden\n\nof relitigating an identical issue with the same party or his privy\n\nand of promoting judicial economy by preventing needless\n\nlitigation.\" Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 329\n\n(1st Cir. 2009) (quoting Parklane Hosiery Co. v. Shore, 439 U.S.\n\n322, 326 (1979)). As \"issue preclusion prevent[s] relitigation of\n\nwrong decisions just as much as right ones,\" a court charged with\n\napplying collateral estoppel ought not inquire into the\n\ncorrectness of the earlier determination of a precluded issue.\n\nVargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 29 (1st Cir.\n\n2017) (quoting B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S.\n\nCt. 1293, 1308 (2015)) (alteration in original).\n\n As a threshold matter, the appellant posits that\n\ncollateral estoppel principles are inapposite here because the\n\narbitrator lacked the authority to decide the issue of whether an\n\nagreement to arbitrate existed. Although the plaintiffs argue\n\nthat this issue was not properly preserved for appeal, our review\n\nof the record leaves us less sanguine. Thus, we proceed to\n\nconsider the appellant's challenges to the arbitrator's authority\n\nto determine the arbitrability of claims arising in connection\n\nwith the ARA.\n\n\n - 11 -\n\f To begin, the premise on which the appellant's argument\n\nrests is sound: as a customary tenant, collateral estoppel \"is\n\nnot implicated if the forum which rendered the prior 'judgment'\n\n(viz., the arbitral award) lacked 'jurisdiction' over the\n\nputatively precluded claim.\" Wolf v. Gruntal & Co., 45 F.3d 524,\n\n527 (1st Cir. 1995); see, e.g., Montana v. United States, 440 U.S.\n\n147, 153 (1979); S. Pac. R.R., 168 U.S. at 48. But as we explain\n\nbelow, the appellant's attempt to invoke this premise here is\n\nfaulty.\n\n The appellant's principal claim is that the arbitrator\n\nlacked authority to resolve the issue of arbitrability because\n\nthat issue already had been resolved by the Texas state court when\n\nit rejected the jurisdictional challenges mounted by Patton and\n\nDeaton. In response to the magistrate judge's statement that \"[i]t\n\nis difficult to discern a holding of this scope in the Texas state\n\ncourt materials filed by the parties,\" Patton I, 2018 WL 3655785,\n\nat *3 n.5, the appellant does not identify any such holding but,\n\nrather, notes only that the parties' briefing in the Texas court\n\nincluded arguments on arbitrability. The appellant, though, reads\n\ntoo much into this briefing: the mere fact that an issue is\n\nbriefed before a court, without more, does not mean that the court\n\ndecided the issue. See Wingard v. Emerald Venture Fla. LLC, 438\n\nF.3d 1288, 1294 (11th Cir. 2006); Benoni v. Bos. & Me. Corp., 828\n\nF.2d 52, 56 (1st Cir. 1987).\n\n\n - 12 -\n\f Critically, there is nothing in the Texas state court's\n\nsuccinct jurisdictional determination that indicates it was\n\npredicated upon the arbitrability vel non of disputes under the\n\nARA. Given the nature of the jurisdictional issue, it is equally\n\nlikely that the Texas state court's retention of jurisdiction\n\nrelied on the facts surrounding the plaintiffs' engagement of JLF.\n\nThese facts indicated, among other things, that Texas was the place\n\nwhere the contract was formed and that Texas was the anticipated\n\nplace of performance and payment. See, e.g., Griffith Techs.,\n\nInc. v. Packers Plus Energy Servs. (USA), Inc., No. 01-17-00097-\n\nCV, 2017 WL 6759200, at *3 (Tex. App. Dec. 28, 2017) (holding that\n\ncontract's place of performance is an important consideration with\n\nrespect to personal jurisdiction); Hoagland v. Butcher, 474 S.W.3d\n\n802, 815 (Tex. App. 2014) (same). Thus, there is no principled\n\nway in which we can read the Texas state court's jurisdictional\n\ndetermination as a determination that a valid and enforceable\n\nagreement to arbitrate existed.\n\n The appellant has a fallback position. He argues that\n\nthe first JAMS arbitrator exceeded his authority because the\n\nparties did not agree to submit the question of arbitrability to\n\nan arbitrator. This is whistling past the graveyard.\n\n Parties to a contract may, by mutual agreement, place\n\nbefore an arbitrator \"not only the merits of a particular dispute\n\nbut also 'gateway' questions of 'arbitrability,' such as whether\n\n\n - 13 -\n\fthe parties have agreed to arbitrate or whether their agreement\n\ncovers a particular controversy.\" Henry Schein, Inc. v. Archer &\n\nWhite Sales, Inc., ___ S. Ct. ___, ___ (2019) [2019 WL 122164, at\n\n*3 (2019)] (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63,\n\n68-69 (2010)). For such gateway questions, a court \"should not\n\nassume that the parties agreed to arbitrate arbitrability unless\n\nthere is clear and unmistakable evidence that they did so.\" Id.\n\nat ___ [2019 WL 122164, at *6] (quoting First Options of Chi.,\n\nInc. v. Kaplan, 514 U.S. 938, 944 (1995)).\n\n The \"clear and unmistakable evidence\" standard is\n\ndemanding. See Shank/Balfour Beatty v. Int'l Bhd. of Elec. Workers\n\nLocal 99, 497 F.3d 83, 89-90 (1st Cir. 2007); Marie v. Allied Home\n\nMortg. Corp., 402 F.3d 1, 14 (1st Cir. 2005). Generally speaking,\n\na court must look to the language of the parties' agreement to\n\ndetermine whether the agreement to arbitrate extends to questions\n\nof arbitrability. See, e.g., Rent-A-Ctr., 561 U.S. at 66-67;\n\nPowerShare, 597 F.3d at 15-18. Even so, the language of the\n\ncontract is not always the exclusive source of relevant\n\ninformation; the parties' conduct also may herald an agreement to\n\narbitrate the question of arbitrability. See Local 36 Sheet Metal\n\nWorkers' Int'l Ass'n v. Whitney, 670 F.3d 865, 869 (8th Cir. 2012);\n\nCleveland Elec. Illuminating Co. v. Util. Workers Union of Am.,\n\n440 F.3d 809, 813 (6th Cir. 2006); see also Coady v. Ashcraft &\n\nGerel, 223 F.3d 1, 9 n.10 (1st Cir. 2000) (explaining that\n\n\n - 14 -\n\f\"[p]arties may supplement by their submissions the authority\n\ngranted an arbitration panel under a contract\"). Relatedly, \"a\n\ncourt must defer to an arbitrator's arbitrability decision when\n\nthe parties submitted that matter to arbitration.\" First Options,\n\n514 U.S. at 943.\n\n The decision in Cleveland Electric is instructive.\n\nThere, the Sixth Circuit determined that parties who \"submitted\n\nthe question of arbitrability to the arbitrator for his\n\ndetermination\" and manifested no intent to \"reserve the question\n\nof arbitrability for the court\" had \"clearly and unmistakably\n\nconsented\" to arbitrate questions of arbitrability. 440 F.3d at\n\n813. In making this determination, the court convincingly\n\ndistinguished First Options, in which the Supreme Court found that\n\nbecause parties had filed written objections to the arbitration in\n\nwhich they challenged the arbitrators' jurisdiction over questions\n\nof arbitrability, those parties \"did not clearly agree to submit\n\nthe question of arbitrability to arbitration.\" 514 U.S. at 947.\n\n Here, we discern much the same type of factual mosaic\n\nthat the Sixth Circuit found persuasive in Cleveland Electric.\n\nJLF took the unequivocal position before the first JAMS arbitrator\n\nthat, pursuant to JAMS rules, the arbitrator had the authority to\n\nadjudicate any \"[j]urisdictional and arbitrability disputes,\n\nincluding disputes over the formation, existence, validity,\n\ninterpretation or scope of the agreement under which Arbitration\n\n\n - 15 -\n\fis sought.\" All of the parties to the first JAMS arbitration\n\nsubmitted briefs to the arbitrator on the issue of whether the\n\nclaims asserted were arbitrable at all, and no one questioned the\n\narbitrator's authority to decide that issue. Nor did any party\n\nseek to vacate the arbitrator's decision on such a ground. Given\n\nthis history, we conclude that the parties to the first JAMS\n\narbitration clearly and unmistakably accepted the proposition that\n\nthe arbitrator possessed the requisite authority to determine\n\nwhether claims arising under the ARA were arbitrable.\n\n Our conclusion that the first JAMS arbitrator had\n\nauthority to decide the issue of arbitrability brings us to the\n\nnext facet of the appellant's asseverational array. The magistrate\n\njudge, following the parties' lead, applied Rhode Island law and\n\nconcluded that collateral estoppel principles demanded the denial\n\nof the appellant's motion to compel arbitration. See Patton I,\n\n2018 WL 3655785, at *7. The appellant now submits that the court\n\nbelow should not have applied Rhode Island law in resolving this\n\nquestion. Instead, he contends that Texas law should control.\n\n With respect to the preclusive effect of an unconfirmed\n\narbitral award,3 it is an open question whether, in this diversity\n\n\n 3 Under the Full Faith and Credit Act, 28 U.S.C. § 1738, we\nare required to \"give the same preclusive effect to state court\njudgments that those judgments would be given in the courts of the\nState from which the judgments emerged.\" Kremer v. Chem. Const.\nCorp., 456 U.S. 461, 466 (1982). An arbitration award that has\nbeen reviewed by a state court may fall within the ambit of the\n\n\n - 16 -\n\faction, we should apply the choice-of-law rules of the forum state\n\n(Rhode Island), see Cochran v. Quest Software, Inc., 328 F.3d 1,\n\n6 (1st Cir. 2003), or the choice-of-law rules dictated by federal\n\ncommon law, see McDonald v. City of W. Branch, Mich., 466 U.S.\n\n284, 288 (1984). The absence of controlling authority is not\n\nsurprising as \"[t]he source of the law that governs the preclusion\n\nconsequences of an [unconfirmed] arbitration award has not been\n\nmuch developed.\" 18B Charles Alan Wright et al., Federal Practice\n\nand Procedure § 4475.1 (2d ed. 2002); see W.J. O'Neil Co. v.\n\nShepley, Bulfinch, Richardson & Abbott, Inc., 765 F.3d 625, 629\n\n(6th Cir. 2014) (referring to the source-of-law issue for\n\nunconfirmed arbitral awards as \"underdeveloped and murky\").\n\n Here, however, we need not explore this uncertain\n\nsource-of-law terrain. In his briefing before the magistrate\n\njudge, the appellant stated unequivocally that the preclusive\n\neffect of the arbitrator's ruling \"should be determined under Rhode\n\nIsland law, because this issue does not involve the construction\n\nof the ARA and is therefore not subject to determination under\n\nTexas law.\" The other parties acquiesced. Where, as here, all\n\n\n\nFull Faith and Credit Act. See In Re CWS Enters., Inc., 870 F.3d\n1106, 1119 (9th Cir. 2017); Ryan v. City of Shawnee, 13 F.3d 345,\n347 (10th Cir. 1993); Jalil v. Avdel Corp., 873 F.2d 701, 704 (3d\nCir. 1989). It is settled beyond hope of peradventure, though,\nthat \"section 1738's 'full faith and credit' provision does not\napply to unconfirmed arbitral awards.\" Wolf, 45 F.3d at 527 n.3\n(citing McDonald v. City of W. Branch, Mich., 466 U.S. 284, 287-\n88 (1984)) (emphasis in original).\n\n\n - 17 -\n\fparties agree to the application of a particular source of law, a\n\ncourt is \"free to 'forego an independent analysis and accept the\n\nparties' agreement.'\" Hershey v. Donaldson, Lufkin & Jenrette\n\nSec. Corp., 317 F.3d 16, 20 (1st Cir. 2003) (quoting Borden v.\n\nPaul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991)).\n\nThe magistrate judge followed this praxis, stating explicitly that\n\nshe was applying Rhode Island law at the parties' behest. See\n\nPatton I, 2018 WL 3655785, at *7 n. 10.\n\n In this venue, the appellant reverses direction and\n\nassigns error to the district court's reliance on Rhode Island\n\ncollateral estoppel law. But a party cannot so easily change\n\nhorses in midstream, abandoning a position that he advocated below\n\nin search of a swifter steed. We think it self-evident that a\n\nparty cannot invite the trial court to employ one source of\n\napplicable law and then — after the trial court has accepted his\n\ninvitation — try to convince the court of appeals that some other\n\nsource of law would be preferable. See Lott v. Levitt, 556 F.3d\n\n564, 568 (7th Cir. 2009); Ortiz v. Gaston Cty. Dyeing Mach. Co.,\n\n277 F.3d 594, 597 (1st Cir. 2002). After all, the appellant \"is\n\nnot entitled to get a free peek at how his dispute will shake out\n\nunder [Rhode Island] law and, when things don't go his way, ask\n\nfor a mulligan under the laws of a different jurisdiction.\" Lott,\n\n556 F.3d at 568. The opposite is true: \"[w]hen the parties agree\n\non the substantive law that should govern, 'we may hold the parties\n\n\n - 18 -\n\fto their plausible choice of law.'\" Lluberes v. Uncommon Prods.,\n\nLLC, 663 F.3d 6, 23 (1st Cir. 2011) (quoting Perry v. Blum, 629\n\nF.3d 1, 8 (1st Cir. 2010)).\n\n To be sure, in the memorandum of law that accompanied\n\nhis objections to the magistrate judge's R&R, the appellant couched\n\nhis arguments in terms of Texas collateral estoppel law. But this\n\nwas little more than an attempt to lock the barn door after the\n\nhorses had galloped away. A party cannot successfully urge a\n\nmagistrate judge to apply a particular body of law and then,\n\ndissatisfied with the outcome that he invited, ask the district\n\ncourt to apply some other body of law. See Robb Evans & Assocs.,\n\n850 F.3d at 35, (\"[T]he law is settled that a litigant must put\n\nits best foot forward before a magistrate judge, and cannot\n\nintroduce new arguments for the first time on the district court's\n\nreview of the magistrate judge's ruling or recommendation.\").\n\n\"[I]t would be fundamentally unfair to permit a litigant to set\n\nits case in motion before the magistrate, wait to see which way\n\nthe wind was blowing, and — having received an unfavorable\n\nrecommendation — shift gears before the district judge.\" Paterson-\n\nLeitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991\n\n(1st Cir. 1988).\n\n To say more on this point would be to paint the lily.\n\nSince the appellant has waived any argument for an alternative\n\nchoice of law, we conclude that Rhode Island collateral estoppel\n\n\n - 19 -\n\fprinciples must be applied here. To hold otherwise would be to\n\nsanction the use of misdirection as a tool for subsequent appellate\n\nadvocacy. See id. (\"[A party cannot] feint and weave at the\n\ninitial hearing, and save its knockout punch for the second\n\nround.\").\n\n Under Rhode Island law, the doctrine of collateral\n\nestoppel provides that an issue \"that has been actually litigated\n\nand determined cannot be re-litigated between the same parties or\n\ntheir privies in future proceedings.\" Commercial Union Ins. Co.\n\nv. Pelchat, 727 A.2d 676, 680 (R.I. 1999). \"Subject to situations\n\nin which application of the doctrine would lead to inequitable\n\nresults,\" Foster-Glocester Reg'l Sch. Comm. v. Bd. of Review, 854\n\nA.2d 1008, 1014 (R.I. 2004), collateral estoppel under Rhode Island\n\nlaw requires that there is an identity of issues; that the prior\n\nproceeding resulted in a final judgment on the merits; and that\n\nthe party against whom collateral estoppel is asserted is the same\n\nas or in privity with a party from that proceeding, see E.W. Audet\n\n& Sons, Inc. v. Fireman's Fund Ins. Co., 635 A.2d 1181, 1186 (R.I.\n\n1994). The district court found that this case fit comfortably\n\nwithin the Rhode Island collateral estoppel framework: there was\n\na sufficient identity of issues; the arbitral decision, though\n\nunconfirmed, was a final judgment warranting preclusive effect;\n\nthe appellant was in privity with JLF and, therefore, was bound by\n\nthe arbitral decision; and application of the doctrine would not\n\n\n - 20 -\n\flead to any inequitable results. See Patton I, 2018 WL 3655785,\n\nat *1-9.\n\n In his briefs before this court, the appellant does not\n\nchallenge the correctness of the district court's application of\n\nRhode Island collateral estoppel principles. Rather, the\n\nappellant makes a more limited argument, submitting only that Texas\n\ncollateral estoppel law should be applied. He does not argue at\n\nall that the court below misapplied Rhode Island collateral\n\nestoppel law.\n\n \"It is axiomatic that arguments not developed on appeal\n\nare abandoned.\" Soto-Cintrón v. United States, 901 F.3d 29, 32\n\nn.3 (1st Cir. 2018) (citing United States v. Zannino, 895 F.2d 1,\n\n17 (1st Cir. 1990)); see Rivera-Gomez v. de Castro, 843 F.2d 631,\n\n635 (1st Cir. 1988) (explaining that \"a litigant has an obligation\n\n'to spell out its arguments squarely and distinctly' or else\n\nforever hold its peace\" (quoting Paterson-Leitch, 840 F.2d at\n\n990)). It follows inexorably, as night follows day, that the\n\nappellant has waived any claim of error regarding the magistrate\n\njudge's analysis under Rhode Island collateral estoppel law.\n\nAccordingly, the denial of the appellant's motion to compel\n\narbitration must stand.\n\n\n\n\n - 21 -\n\fIII. CONCLUSION\n\n We need go no further. For the reasons elucidated above,\n\nthe judgment of the district court is affirmed, and the case is\n\nremanded for further proceedings consistent with this opinion.\n\n\n\n\n - 22 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366802/", "author_raw": "Hon. William E. Smith, U.S. District Judge]"}]} | BARRON | SOUTER | SELYA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589549/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Rickie PATTON and Cathleen Marquardt, Plaintiffs, Appellees, v. Barry JOHNSON, Defendant, Appellant, and Steven Johnson, Individually and as Law Offices of Steven M. Johnson D/B/A the Johnson Law Firm, Co-Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1750\n\n RICKIE PATTON and CATHLEEN MARQUARDT,\n\n Plaintiffs, Appellees,\n\n v.\n\n BARRY JOHNSON,\n\n Defendant, Appellant,\n\n and\n\n STEVEN JOHNSON, individually and as LAW OFFICES OF\n STEVEN M. JOHNSON d/b/a THE JOHNSON LAW FIRM,\n\n Co-defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF RHODE ISLAND\n\n [Hon. William E. Smith, U.S. District Judge]\n [Hon. Patricia A. Sullivan, U.S. Magistrate Judge]\n\n\n Before\n\n Barron, Circuit Judge,\n Souter, Associate Justice,\n and Selya, Circuit Judge.\n\n\n Samuel D. Zurier for appellant.\n Matthew S. Dawson, with whom Lynch & Pine, Attorneys at Law,\nLLC was on brief, for appellees.\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the Supreme\nCourt of the United States, sitting by designation.\n\fFebruary 11, 2019\n\f SELYA, Circuit Judge. Over time, this case has become\n\na procedural motley. In its current iteration, defendant-\n\nappellant Barry Johnson emphasizes his association with the\n\nJohnson Law Firm (JLF) in attempting to compel the plaintiffs,\n\nRickie Patton and his wife Cathleen Marquardt, to arbitrate various\n\ntort claims (including their claims of legal malpractice). The\n\ndistrict court, adopting a magistrate judge's report and\n\nrecommendation (R&R)1 and applying principles of collateral\n\nestoppel derived from Rhode Island law, determined that the\n\nappellant was barred from relitigating his contention that the\n\nclaims should be heard before an arbitrator. The appellant assigns\n\nerror. After threading our way through the labyrinth of prior\n\nproceedings, we affirm.\n\nI. BACKGROUND\n\n We briefly rehearse the background and travel of the\n\ncase. In 2007, the plaintiffs retained defendants JLF and Steven\n\nM. Johnson to represent them in a products liability suit\n\nconcerning an allegedly defective hernia mesh device (Kugel Mesh).2\n\nThe parties executed an Attorney Representation Agreement (the\n\n\n\n\n 1\n The district court entered a brief order, which adopted and\nincorporated by reference the R&R. See Patton v. Johnson (Patton\nI), No. 17-259WES, 2018 WL 3655785, at *1 (D.R.I. Aug. 2, 2018).\nWe refer to the order and the R&R, together, as Patton I.\n 2 Despite their identical surnames, the appellant is not\n\nrelated to Attorney Stephen M. Johnson, who is the principal of\nJLF (his eponymous law firm).\n\n\n - 3 -\n\fARA), which contained a three-paragraph arbitration provision.\n\nThe plaintiffs did not, however, initial or otherwise specifically\n\nacknowledge the arbitration paragraphs.\n\n JLF filed the plaintiffs' products liability suit in the\n\nUnited States District Court for the Southern District of Texas.\n\nAs part of a centralized multi-district litigation proceeding, see\n\n28 U.S.C. § 1407, the suit was subsequently transferred to the\n\nDistrict of Rhode Island, where it joined more than 1,000 similar\n\nsuits brought against the Rhode Island-based Kugel Mesh\n\nmanufacturer. In due course, JLF hired the appellant as an\n\nemployed attorney. In that capacity, the appellant worked, inter\n\nalia, on the plaintiffs' suit.\n\n When the suit was settled in 2015, a dispute arose among\n\nthe plaintiffs, the appellant, JLF, and John Deaton (the Rhode\n\nIsland-based local counsel retained by JLF). Central to this\n\ndispute were representations allegedly made by the appellant\n\nconcerning settlement amounts. The dispute was not resolved, and\n\nthe appellant came to believe that the plaintiffs would be filing\n\na malpractice suit against him.\n\n In an attempt to get out in front of such a suit, the\n\nappellant — in April of 2016 — filed a civil action against JLF\n\nand Patton in a Texas state court seeking to compel arbitration\n\nbased on the provisions of the ARA. Patton challenged the court's\n\njurisdiction over his person, as did Deaton (who had been impleaded\n\n\n - 4 -\n\fby JLF). The Texas trial court rejected these jurisdictional\n\nchallenges, striking the special appearances made on behalf of\n\nboth Patton and Deaton. Deaton appealed, and the Texas Court of\n\nAppeals affirmed. See Deaton v. Johnson, No. 05-16-01221-CV, 2017\n\nWL 2991939, at *4 (Tex. App. July 14, 2017), review dismissed (Aug.\n\n10, 2018).\n\n While Deaton's appeal was pending, JLF initiated a\n\nJudicial Arbitration and Mediation Service (JAMS) arbitration\n\nproceeding against Patton in Fort Worth, Texas. The appellant was\n\nnot named as a party to the JAMS arbitration. Patton challenged\n\nJLF's right to arbitrate, arguing that the uninitialed arbitration\n\nparagraphs in the ARA were of no effect. By decision dated\n\nNovember 15, 2016, the arbitrator determined that the ARA did not\n\ncontain a valid and enforceable agreement to arbitrate.\n\nAccordingly, the arbitrator dismissed the JAMS proceeding.\n\n The plaintiffs made the next move. On April 3, 2017,\n\nthey sued the appellant, JLF, and JLF's principal in a Rhode Island\n\nstate court, asserting claims for malpractice, other torts, and\n\nunfair trade practices (all relating to the handling and settlement\n\nof the plaintiffs' Kugel Mesh suit). The defendants removed the\n\nsuit to the United States District Court for the District of Rhode\n\nIsland, noting diversity of citizenship and the existence of a\n\ncontroversy in the requisite amount. See 28 U.S.C. §§ 1332(a),\n\n1441. At roughly the same time, the appellant initiated a second\n\n\n - 5 -\n\fJAMS arbitration proceeding against Patton in Texas, premised upon\n\nthe arbitration provision in the appellant's 2013 employment\n\nagreement with JLF — an agreement to which the plaintiffs were not\n\nparties. By means of this proceeding, the appellant sought what\n\namounted to a declaration that the plaintiffs were bound to\n\narbitrate their claims against him. The appellant proceeded to\n\nfile a motion to compel arbitration in the United States District\n\nCourt for the Northern District of Texas.\n\n With this foundation in place, the appellant turned his\n\nattention to the Rhode Island case, moving to stay the civil action\n\nand compel arbitration pursuant to the Federal Arbitration Act\n\n(FAA). See 9 U.S.C. §§ 3,4. His motion sought to invoke the\n\narbitration provisions of both his 2013 employment agreement and\n\nthe ARA. While his motion was pending before the federal district\n\ncourt in Rhode Island, the federal district court in Texas denied\n\nthe appellant's motion to compel arbitration on the ground that\n\nthe 2013 employment agreement did not in any way bind Patton.\n\nConsequently, the court dismissed the Texas suit without\n\nprejudice.\n\n Back in Rhode Island, the appellant abandoned his\n\nreliance on the 2013 employment agreement. Nevertheless, he\n\ncontinued to pursue his motion to compel arbitration, relying\n\nexclusively on the uninitialed arbitration paragraphs contained in\n\nthe ARA. He alleged in relevant part that he was not a party to\n\n\n - 6 -\n\fthe first JAMS arbitration and, thus, was not bound by the decision\n\nof the first JAMS arbitrator (who had found the uninitialed\n\narbitration paragraphs in the ARA impuissant as to Patton). The\n\nplaintiffs opposed this motion, arguing that the appellant was in\n\nprivity with JLF and was therefore precluded from re-litigating\n\nthe issue of arbitrability under principles of collateral\n\nestoppel.\n\n The court below referred the appellant's motion to\n\ncompel arbitration to a magistrate judge, who applied Rhode Island\n\nlaw and concluded that principles of collateral estoppel\n\nforeclosed the appellant's attempt to invoke the arbitration\n\nprovision of the ARA. Accordingly, the magistrate judge\n\nrecommended that the appellant's motion to compel arbitration be\n\ndenied. See Patton I, 2018 WL 3655785, at *9. Represented by new\n\ncounsel, the appellant served written objections to the R&R, but\n\nthe district court overruled the objections, adopted the R&R, and\n\ndenied the motion to compel arbitration. See id. at *1. This\n\ntimely appeal followed.\n\nII. ANALYSIS\n\n Before beginning our analysis, we pause to smooth out a\n\nprocedural wrinkle. We then proceed to the merits.\n\n A. Judicial Review of the R&R.\n\n \"[A]s Article I judicial officers, magistrate judges\n\nordinarily may not decide motions that are dispositive either of\n\n\n - 7 -\n\fa case or of a claim or defense within a case.\" PowerShare, Inc.\n\nv. Syntel, Inc., 597 F.3d 10, 13 (1st Cir. 2010). While a\n\nmagistrate judge may decide a non-dispositive motion, see Fed R.\n\nCiv. P. 72(a), she may only make a recommended disposition of a\n\ndispositive motion, see Fed. R. Civ. P. 72(b).\n\n This dispositive/non-dispositive dichotomy has\n\nimplications for judicial review. When a magistrate judge issues\n\na recommended decision on a dispositive motion and an objection is\n\ninterposed, district court review is de novo. See id. By\n\ncontrast, when a magistrate judge enters an order resolving a non-\n\ndispositive motion and a first-tier appeal is taken to the district\n\ncourt, review is for clear error (that is, the district court must\n\naccept the magistrate judge's findings of fact and inferences drawn\n\ntherefrom unless those findings and inferences are clearly\n\nerroneous). See Fed. R. Civ. P. 72(a); Phinney v. Wentworth\n\nDouglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999).\n\n In this case, the magistrate judge treated the\n\nappellant's motion to compel arbitration as a dispositive motion\n\nand recommended a decision. See Patton I, 2018 WL 3655785, at *1.\n\nThis was error because a motion to compel arbitration is a non-\n\ndispositive motion. See PowerShare, 597 F.3d at 14. Accordingly,\n\nan order, not a recommended decision, would have been the\n\nappropriate vehicle for the magistrate judge's findings and\n\nconclusions.\n\n\n - 8 -\n\f But the district court came to the rescue: it recognized\n\nthis discrepancy and treated the R&R as an order. See Patton I,\n\n2018 WL 3655785 at *1. The district court's prophylactic action\n\ncured the defect and rendered any procedural error harmless. See\n\nUnited States v. Weissberger, 951 F.2d 392, 398 (D.C. Cir. 1991)\n\n(holding that district court's application of proper standard of\n\nreview \"cured any arguable defect\" in magistrate judge's order).\n\n That the error was harmless is all the more evident\n\nbecause the appellant's motion to compel turned on questions of\n\nlaw. See, e.g., PowerShare, 597 F.3d at 14 (explaining that\n\n\"interpreting a contractual term [is] a question of law for the\n\ncourts\"); Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978\n\n(1st Cir. 1995) (\"The applicability vel non of preclusion\n\nprinciples is a question of law.\"). This is significant because\n\na magistrate judge's answers to questions of law, whether rendered\n\nin connection with a dispositive motion or a non-dispositive\n\nmotion, engender de novo review. See PowerShare, 597 F.3d at 15\n\n(explaining that, for questions of law, \"there is no practical\n\ndifference between review under Rule 72(a)'s 'contrary to law'\n\nstandard and review under Rule 72(b)'s de novo standard\"). It\n\nfollows that whether the magistrate judge issued an R&R or an\n\norder, the district court was obliged to apply the same standard\n\nof review to the questions at issue.\n\n\n\n\n - 9 -\n\f B. The Merits.\n\n We review de novo the district court's denial of a motion\n\nto compel arbitration. See Nat'l Fed'n of the Blind v. The\n\nContainer Store, Inc., 904 F.3d 70, 78 (1st Cir. 2018); Kristian\n\nv. Comcast Corp., 446 F.3d 25, 31 (1st Cir. 2006). We may affirm\n\nthe district court's ruling \"on any independent ground made\n\napparent by the record.\" Escobar-Noble v. Luxury Hotels Int'l of\n\nP.R., Inc., 680 F.3d 118, 121 (1st Cir. 2012).\n\n To compel arbitration, the movant must demonstrate \"that\n\na valid agreement to arbitrate exists, that [he] is entitled to\n\ninvoke the arbitration clause, that the other party is bound by\n\nthat clause, and that the claim asserted comes within the clause's\n\nscope.\" InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003).\n\nHere, the first JAMS arbitrator answered the question of whether\n\nthe ARA contained a valid and enforceable arbitration agreement in\n\nthe negative, and the magistrate judge — applying Rhode Island law\n\n— concluded that this determination was entitled to preclusive\n\neffect. See Patton I, 2018 WL 3655785, at *1-2. The appellant\n\nlays siege to this conclusion.\n\n Some groundwork is helpful. \"Collateral estoppel,\n\nsometimes called issue preclusion, bars parties from re-litigating\n\nissues of either fact or law that were adjudicated in an earlier\n\nproceeding\" before a court or other tribunal of competent\n\njurisdiction. Robb Evans & Assocs., LLC v. United States, 850\n\n\n - 10 -\n\fF.3d 24, 31 (1st Cir. 2017); see Ramallo Bros. Printing, Inc. v.\n\nEl Día, Inc., 490 F.3d 86, 89 (1st Cir. 2007) (quoting S. Pac.\n\nR.R. Co. v. United States, 168 U.S. 1, 48 (1897)). The doctrine\n\nserves the \"dual purpose of protecting litigants from the burden\n\nof relitigating an identical issue with the same party or his privy\n\nand of promoting judicial economy by preventing needless\n\nlitigation.\" Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 329\n\n(1st Cir. 2009) (quoting Parklane Hosiery Co. v. Shore, 439 U.S.\n\n322, 326 (1979)). As \"issue preclusion prevent[s] relitigation of\n\nwrong decisions just as much as right ones,\" a court charged with\n\napplying collateral estoppel ought not inquire into the\n\ncorrectness of the earlier determination of a precluded issue.\n\nVargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 29 (1st Cir.\n\n2017) (quoting B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S.\n\nCt. 1293, 1308 (2015)) (alteration in original).\n\n As a threshold matter, the appellant posits that\n\ncollateral estoppel principles are inapposite here because the\n\narbitrator lacked the authority to decide the issue of whether an\n\nagreement to arbitrate existed. Although the plaintiffs argue\n\nthat this issue was not properly preserved for appeal, our review\n\nof the record leaves us less sanguine. Thus, we proceed to\n\nconsider the appellant's challenges to the arbitrator's authority\n\nto determine the arbitrability of claims arising in connection\n\nwith the ARA.\n\n\n - 11 -\n\f To begin, the premise on which the appellant's argument\n\nrests is sound: as a customary tenant, collateral estoppel \"is\n\nnot implicated if the forum which rendered the prior 'judgment'\n\n(viz., the arbitral award) lacked 'jurisdiction' over the\n\nputatively precluded claim.\" Wolf v. Gruntal & Co., 45 F.3d 524,\n\n527 (1st Cir. 1995); see, e.g., Montana v. United States, 440 U.S.\n\n147, 153 (1979); S. Pac. R.R., 168 U.S. at 48. But as we explain\n\nbelow, the appellant's attempt to invoke this premise here is\n\nfaulty.\n\n The appellant's principal claim is that the arbitrator\n\nlacked authority to resolve the issue of arbitrability because\n\nthat issue already had been resolved by the Texas state court when\n\nit rejected the jurisdictional challenges mounted by Patton and\n\nDeaton. In response to the magistrate judge's statement that \"[i]t\n\nis difficult to discern a holding of this scope in the Texas state\n\ncourt materials filed by the parties,\" Patton I, 2018 WL 3655785,\n\nat *3 n.5, the appellant does not identify any such holding but,\n\nrather, notes only that the parties' briefing in the Texas court\n\nincluded arguments on arbitrability. The appellant, though, reads\n\ntoo much into this briefing: the mere fact that an issue is\n\nbriefed before a court, without more, does not mean that the court\n\ndecided the issue. See Wingard v. Emerald Venture Fla. LLC, 438\n\nF.3d 1288, 1294 (11th Cir. 2006); Benoni v. Bos. & Me. Corp., 828\n\nF.2d 52, 56 (1st Cir. 1987).\n\n\n - 12 -\n\f Critically, there is nothing in the Texas state court's\n\nsuccinct jurisdictional determination that indicates it was\n\npredicated upon the arbitrability vel non of disputes under the\n\nARA. Given the nature of the jurisdictional issue, it is equally\n\nlikely that the Texas state court's retention of jurisdiction\n\nrelied on the facts surrounding the plaintiffs' engagement of JLF.\n\nThese facts indicated, among other things, that Texas was the place\n\nwhere the contract was formed and that Texas was the anticipated\n\nplace of performance and payment. See, e.g., Griffith Techs.,\n\nInc. v. Packers Plus Energy Servs. (USA), Inc., No. 01-17-00097-\n\nCV, 2017 WL 6759200, at *3 (Tex. App. Dec. 28, 2017) (holding that\n\ncontract's place of performance is an important consideration with\n\nrespect to personal jurisdiction); Hoagland v. Butcher, 474 S.W.3d\n\n802, 815 (Tex. App. 2014) (same). Thus, there is no principled\n\nway in which we can read the Texas state court's jurisdictional\n\ndetermination as a determination that a valid and enforceable\n\nagreement to arbitrate existed.\n\n The appellant has a fallback position. He argues that\n\nthe first JAMS arbitrator exceeded his authority because the\n\nparties did not agree to submit the question of arbitrability to\n\nan arbitrator. This is whistling past the graveyard.\n\n Parties to a contract may, by mutual agreement, place\n\nbefore an arbitrator \"not only the merits of a particular dispute\n\nbut also 'gateway' questions of 'arbitrability,' such as whether\n\n\n - 13 -\n\fthe parties have agreed to arbitrate or whether their agreement\n\ncovers a particular controversy.\" Henry Schein, Inc. v. Archer &\n\nWhite Sales, Inc., ___ S. Ct. ___, ___ (2019) [2019 WL 122164, at\n\n*3 (2019)] (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63,\n\n68-69 (2010)). For such gateway questions, a court \"should not\n\nassume that the parties agreed to arbitrate arbitrability unless\n\nthere is clear and unmistakable evidence that they did so.\" Id.\n\nat ___ [2019 WL 122164, at *6] (quoting First Options of Chi.,\n\nInc. v. Kaplan, 514 U.S. 938, 944 (1995)).\n\n The \"clear and unmistakable evidence\" standard is\n\ndemanding. See Shank/Balfour Beatty v. Int'l Bhd. of Elec. Workers\n\nLocal 99, 497 F.3d 83, 89-90 (1st Cir. 2007); Marie v. Allied Home\n\nMortg. Corp., 402 F.3d 1, 14 (1st Cir. 2005). Generally speaking,\n\na court must look to the language of the parties' agreement to\n\ndetermine whether the agreement to arbitrate extends to questions\n\nof arbitrability. See, e.g., Rent-A-Ctr., 561 U.S. at 66-67;\n\nPowerShare, 597 F.3d at 15-18. Even so, the language of the\n\ncontract is not always the exclusive source of relevant\n\ninformation; the parties' conduct also may herald an agreement to\n\narbitrate the question of arbitrability. See Local 36 Sheet Metal\n\nWorkers' Int'l Ass'n v. Whitney, 670 F.3d 865, 869 (8th Cir. 2012);\n\nCleveland Elec. Illuminating Co. v. Util. Workers Union of Am.,\n\n440 F.3d 809, 813 (6th Cir. 2006); see also Coady v. Ashcraft &\n\nGerel, 223 F.3d 1, 9 n.10 (1st Cir. 2000) (explaining that\n\n\n - 14 -\n\f\"[p]arties may supplement by their submissions the authority\n\ngranted an arbitration panel under a contract\"). Relatedly, \"a\n\ncourt must defer to an arbitrator's arbitrability decision when\n\nthe parties submitted that matter to arbitration.\" First Options,\n\n514 U.S. at 943.\n\n The decision in Cleveland Electric is instructive.\n\nThere, the Sixth Circuit determined that parties who \"submitted\n\nthe question of arbitrability to the arbitrator for his\n\ndetermination\" and manifested no intent to \"reserve the question\n\nof arbitrability for the court\" had \"clearly and unmistakably\n\nconsented\" to arbitrate questions of arbitrability. 440 F.3d at\n\n813. In making this determination, the court convincingly\n\ndistinguished First Options, in which the Supreme Court found that\n\nbecause parties had filed written objections to the arbitration in\n\nwhich they challenged the arbitrators' jurisdiction over questions\n\nof arbitrability, those parties \"did not clearly agree to submit\n\nthe question of arbitrability to arbitration.\" 514 U.S. at 947.\n\n Here, we discern much the same type of factual mosaic\n\nthat the Sixth Circuit found persuasive in Cleveland Electric.\n\nJLF took the unequivocal position before the first JAMS arbitrator\n\nthat, pursuant to JAMS rules, the arbitrator had the authority to\n\nadjudicate any \"[j]urisdictional and arbitrability disputes,\n\nincluding disputes over the formation, existence, validity,\n\ninterpretation or scope of the agreement under which Arbitration\n\n\n - 15 -\n\fis sought.\" All of the parties to the first JAMS arbitration\n\nsubmitted briefs to the arbitrator on the issue of whether the\n\nclaims asserted were arbitrable at all, and no one questioned the\n\narbitrator's authority to decide that issue. Nor did any party\n\nseek to vacate the arbitrator's decision on such a ground. Given\n\nthis history, we conclude that the parties to the first JAMS\n\narbitration clearly and unmistakably accepted the proposition that\n\nthe arbitrator possessed the requisite authority to determine\n\nwhether claims arising under the ARA were arbitrable.\n\n Our conclusion that the first JAMS arbitrator had\n\nauthority to decide the issue of arbitrability brings us to the\n\nnext facet of the appellant's asseverational array. The magistrate\n\njudge, following the parties' lead, applied Rhode Island law and\n\nconcluded that collateral estoppel principles demanded the denial\n\nof the appellant's motion to compel arbitration. See Patton I,\n\n2018 WL 3655785, at *7. The appellant now submits that the court\n\nbelow should not have applied Rhode Island law in resolving this\n\nquestion. Instead, he contends that Texas law should control.\n\n With respect to the preclusive effect of an unconfirmed\n\narbitral award,3 it is an open question whether, in this diversity\n\n\n 3 Under the Full Faith and Credit Act, 28 U.S.C. § 1738, we\nare required to \"give the same preclusive effect to state court\njudgments that those judgments would be given in the courts of the\nState from which the judgments emerged.\" Kremer v. Chem. Const.\nCorp., 456 U.S. 461, 466 (1982). An arbitration award that has\nbeen reviewed by a state court may fall within the ambit of the\n\n\n - 16 -\n\faction, we should apply the choice-of-law rules of the forum state\n\n(Rhode Island), see Cochran v. Quest Software, Inc., 328 F.3d 1,\n\n6 (1st Cir. 2003), or the choice-of-law rules dictated by federal\n\ncommon law, see McDonald v. City of W. Branch, Mich., 466 U.S.\n\n284, 288 (1984). The absence of controlling authority is not\n\nsurprising as \"[t]he source of the law that governs the preclusion\n\nconsequences of an [unconfirmed] arbitration award has not been\n\nmuch developed.\" 18B Charles Alan Wright et al., Federal Practice\n\nand Procedure § 4475.1 (2d ed. 2002); see W.J. O'Neil Co. v.\n\nShepley, Bulfinch, Richardson & Abbott, Inc., 765 F.3d 625, 629\n\n(6th Cir. 2014) (referring to the source-of-law issue for\n\nunconfirmed arbitral awards as \"underdeveloped and murky\").\n\n Here, however, we need not explore this uncertain\n\nsource-of-law terrain. In his briefing before the magistrate\n\njudge, the appellant stated unequivocally that the preclusive\n\neffect of the arbitrator's ruling \"should be determined under Rhode\n\nIsland law, because this issue does not involve the construction\n\nof the ARA and is therefore not subject to determination under\n\nTexas law.\" The other parties acquiesced. Where, as here, all\n\n\n\nFull Faith and Credit Act. See In Re CWS Enters., Inc., 870 F.3d\n1106, 1119 (9th Cir. 2017); Ryan v. City of Shawnee, 13 F.3d 345,\n347 (10th Cir. 1993); Jalil v. Avdel Corp., 873 F.2d 701, 704 (3d\nCir. 1989). It is settled beyond hope of peradventure, though,\nthat \"section 1738's 'full faith and credit' provision does not\napply to unconfirmed arbitral awards.\" Wolf, 45 F.3d at 527 n.3\n(citing McDonald v. City of W. Branch, Mich., 466 U.S. 284, 287-\n88 (1984)) (emphasis in original).\n\n\n - 17 -\n\fparties agree to the application of a particular source of law, a\n\ncourt is \"free to 'forego an independent analysis and accept the\n\nparties' agreement.'\" Hershey v. Donaldson, Lufkin & Jenrette\n\nSec. Corp., 317 F.3d 16, 20 (1st Cir. 2003) (quoting Borden v.\n\nPaul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991)).\n\nThe magistrate judge followed this praxis, stating explicitly that\n\nshe was applying Rhode Island law at the parties' behest. See\n\nPatton I, 2018 WL 3655785, at *7 n. 10.\n\n In this venue, the appellant reverses direction and\n\nassigns error to the district court's reliance on Rhode Island\n\ncollateral estoppel law. But a party cannot so easily change\n\nhorses in midstream, abandoning a position that he advocated below\n\nin search of a swifter steed. We think it self-evident that a\n\nparty cannot invite the trial court to employ one source of\n\napplicable law and then — after the trial court has accepted his\n\ninvitation — try to convince the court of appeals that some other\n\nsource of law would be preferable. See Lott v. Levitt, 556 F.3d\n\n564, 568 (7th Cir. 2009); Ortiz v. Gaston Cty. Dyeing Mach. Co.,\n\n277 F.3d 594, 597 (1st Cir. 2002). After all, the appellant \"is\n\nnot entitled to get a free peek at how his dispute will shake out\n\nunder [Rhode Island] law and, when things don't go his way, ask\n\nfor a mulligan under the laws of a different jurisdiction.\" Lott,\n\n556 F.3d at 568. The opposite is true: \"[w]hen the parties agree\n\non the substantive law that should govern, 'we may hold the parties\n\n\n - 18 -\n\fto their plausible choice of law.'\" Lluberes v. Uncommon Prods.,\n\nLLC, 663 F.3d 6, 23 (1st Cir. 2011) (quoting Perry v. Blum, 629\n\nF.3d 1, 8 (1st Cir. 2010)).\n\n To be sure, in the memorandum of law that accompanied\n\nhis objections to the magistrate judge's R&R, the appellant couched\n\nhis arguments in terms of Texas collateral estoppel law. But this\n\nwas little more than an attempt to lock the barn door after the\n\nhorses had galloped away. A party cannot successfully urge a\n\nmagistrate judge to apply a particular body of law and then,\n\ndissatisfied with the outcome that he invited, ask the district\n\ncourt to apply some other body of law. See Robb Evans & Assocs.,\n\n850 F.3d at 35, (\"[T]he law is settled that a litigant must put\n\nits best foot forward before a magistrate judge, and cannot\n\nintroduce new arguments for the first time on the district court's\n\nreview of the magistrate judge's ruling or recommendation.\").\n\n\"[I]t would be fundamentally unfair to permit a litigant to set\n\nits case in motion before the magistrate, wait to see which way\n\nthe wind was blowing, and — having received an unfavorable\n\nrecommendation — shift gears before the district judge.\" Paterson-\n\nLeitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991\n\n(1st Cir. 1988).\n\n To say more on this point would be to paint the lily.\n\nSince the appellant has waived any argument for an alternative\n\nchoice of law, we conclude that Rhode Island collateral estoppel\n\n\n - 19 -\n\fprinciples must be applied here. To hold otherwise would be to\n\nsanction the use of misdirection as a tool for subsequent appellate\n\nadvocacy. See id. (\"[A party cannot] feint and weave at the\n\ninitial hearing, and save its knockout punch for the second\n\nround.\").\n\n Under Rhode Island law, the doctrine of collateral\n\nestoppel provides that an issue \"that has been actually litigated\n\nand determined cannot be re-litigated between the same parties or\n\ntheir privies in future proceedings.\" Commercial Union Ins. Co.\n\nv. Pelchat, 727 A.2d 676, 680 (R.I. 1999). \"Subject to situations\n\nin which application of the doctrine would lead to inequitable\n\nresults,\" Foster-Glocester Reg'l Sch. Comm. v. Bd. of Review, 854\n\nA.2d 1008, 1014 (R.I. 2004), collateral estoppel under Rhode Island\n\nlaw requires that there is an identity of issues; that the prior\n\nproceeding resulted in a final judgment on the merits; and that\n\nthe party against whom collateral estoppel is asserted is the same\n\nas or in privity with a party from that proceeding, see E.W. Audet\n\n& Sons, Inc. v. Fireman's Fund Ins. Co., 635 A.2d 1181, 1186 (R.I.\n\n1994). The district court found that this case fit comfortably\n\nwithin the Rhode Island collateral estoppel framework: there was\n\na sufficient identity of issues; the arbitral decision, though\n\nunconfirmed, was a final judgment warranting preclusive effect;\n\nthe appellant was in privity with JLF and, therefore, was bound by\n\nthe arbitral decision; and application of the doctrine would not\n\n\n - 20 -\n\flead to any inequitable results. See Patton I, 2018 WL 3655785,\n\nat *1-9.\n\n In his briefs before this court, the appellant does not\n\nchallenge the correctness of the district court's application of\n\nRhode Island collateral estoppel principles. Rather, the\n\nappellant makes a more limited argument, submitting only that Texas\n\ncollateral estoppel law should be applied. He does not argue at\n\nall that the court below misapplied Rhode Island collateral\n\nestoppel law.\n\n \"It is axiomatic that arguments not developed on appeal\n\nare abandoned.\" Soto-Cintrón v. United States, 901 F.3d 29, 32\n\nn.3 (1st Cir. 2018) (citing United States v. Zannino, 895 F.2d 1,\n\n17 (1st Cir. 1990)); see Rivera-Gomez v. de Castro, 843 F.2d 631,\n\n635 (1st Cir. 1988) (explaining that \"a litigant has an obligation\n\n'to spell out its arguments squarely and distinctly' or else\n\nforever hold its peace\" (quoting Paterson-Leitch, 840 F.2d at\n\n990)). It follows inexorably, as night follows day, that the\n\nappellant has waived any claim of error regarding the magistrate\n\njudge's analysis under Rhode Island collateral estoppel law.\n\nAccordingly, the denial of the appellant's motion to compel\n\narbitration must stand.\n\n\n\n\n - 21 -\n\fIII. CONCLUSION\n\n We need go no further. For the reasons elucidated above,\n\nthe judgment of the district court is affirmed, and the case is\n\nremanded for further proceedings consistent with this opinion.\n\n\n\n\n - 22 -\n[END_CASE]",
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4,589,550 | Scott L. HEAGNEY, Plaintiff, Appellee, v. Lisa A. WONG; City of Fitchburg, Defendants, Appellants, Badgequest, Inc. ; Stephan Unsworth, Defendants. | Heagney v. Wong | 2019-02-11 | 17-2033P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Thompson, Barron", "parties": "", "opinions": [{"author": "BARRON, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2033\n\n SCOTT L. HEAGNEY,\n\n Plaintiff, Appellee,\n\n v.\n\n LISA A. WONG; CITY OF FITCHBURG,\n\n Defendants, Appellants,\n\n BADGEQUEST, INC.; STEPHAN UNSWORTH,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Timothy S. Hillman, U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Barron,\n Circuit Judges.\n\n\n Leonard H. Kesten, with whom Judy A. Levenson, Deidre Brennan\nRegan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief,\nfor appellants.\n Nicholas B. Carter, with whom Joseph M. Cacace and Todd &\nWeld LLP were on brief, for appellee.\n\fFebruary 11, 2019\n\f BARRON, Circuit Judge. This case concerns a suit that\n\nScott Heagney, a past applicant for the position of the police\n\nchief of Fitchburg, Massachusetts, brought against the City of\n\nFitchburg (\"Fitchburg\") and its mayor after the mayor decided not\n\nto nominate him for the job. The mayor made her decision after\n\nshe discovered late in the hiring process that Heagney had not\n\ndisclosed, among other things, that he was charged with serious\n\ncriminal offenses (of which he was later acquitted at trial) during\n\nthe time period in which he was employed at another local police\n\ndepartment. The mayor was quoted thereafter in local newspapers\n\nexplaining her decision not to nominate Heagney for the position.\n\n Heagney's suit claims that Fitchburg violated his rights\n\nunder Massachusetts General Laws Chapter 151B by basing its\n\ndecision not to hire him for the position on his failure to\n\ndisclose the criminal case against him. Heagney's suit also\n\nclaims, under Massachusetts law, that the mayor defamed him through\n\nstatements that she made to the local newspapers explaining the\n\ndecision.\n\n At trial, the jury found for Heagney on both claims.\n\nFor the defamation claim, the jury awarded Heagney $750,000 in\n\ncompensatory damages and for the Chapter 151B claim, no\n\ncompensatory damages but $750,000 in punitive damages. The\n\nDistrict Court denied Fitchburg's motions for judgment as a matter\n\nof law and for a new trial or remittitur, and entered judgment for\n\n\n - 3 -\n\fHeagney. Fitchburg now appeals. We reverse the judgment on the\n\ndefamation claim, affirm the judgment on the Chapter 151B claim,\n\nand reverse the award of punitive damages for the Chapter 151B\n\nclaim.\n\n I.\n\n Heagney first submitted his application for the position\n\nof Fitchburg Police Chief in October 2013. On the résumé\n\naccompanying his application, Heagney listed positions that he had\n\nheld at the Police Department of Franklin, Massachusetts from 1987\n\nto 2001 and at the United States Bureau of Alcohol Tobacco and\n\nFirearms (\"ATF\"), where he had been employed since 2001.\n\n Heagney did not list on his résumé, however, his prior\n\nemployment as an officer in the Police Department of Falmouth,\n\nMassachusetts where, after being fired by the Franklin Police\n\nDepartment, he had worked from 1990 to 1993. Instead, on his\n\nrésumé, Heagney stated that he had worked as a patrolman at the\n\nFranklin Police Department from 1987 to 1994, without noting the\n\nbreak in his service. Heagney also did not list his prior\n\nemployment at the Police Department of Attleboro, Massachusetts,\n\nwhere he had worked from 1985 to 1987.\n\n As part of the application process, Heagney was also\n\nasked to fill out a standard employment application. The\n\napplication asked candidates to list their employment for the past\n\nfifteen years. Heagney stated in the application only that he had\n\n\n - 4 -\n\fworked in the Franklin Police Department from 1987 to 2001 and at\n\nthe ATF from 2001 to present. He also answered \"no\" to two\n\nquestions: \"Have you ever been disciplined, fired or forced to\n\nresign because of misconduct or unsatisfactory employment?\" and\n\n\"Prior to the hiring of our next police chief, a thorough and\n\ncomprehensive background investigation will be conducted. Are\n\nthere any issues that we should be aware of that would arise during\n\nsuch an investigation?\"\n\n Over the course of several months, Bernard Stephens --\n\nFitchburg's personnel director -- and the rest of the selection\n\ncommittee -- whose members had been chosen by Lisa Wong, the mayor\n\nof Fitchburg -- gradually narrowed the pool of potential candidates\n\nwith the assistance of an \"assessment center\" and through various\n\ninterviews. After interviewing the three remaining candidates,\n\nWong chose Heagney as the finalist for the position of Fitchburg\n\nPolice Chief. She sent an email to the city council on March 10,\n\n2014 announcing her decision to nominate him for the position.\n\n Before Wong would officially nominate any candidate for\n\nFitchburg Police Chief to the city council, however, that candidate\n\nwas required to pass a background check by BadgeQuest, a consulting\n\nfirm that Fitchburg had hired to assist in the selection process.\n\nThus, BadgeQuest, at Fitchburg's request, proceeded to complete\n\nits background investigation of Heagney. And, after an initial\n\ninvestigation, Stephan Unsworth, Fitchburg's primary contact at\n\n\n - 5 -\n\fBadgeQuest, communicated BadgeQuest's tentative conclusion to\n\nStephens that \"there [we]re no issues in [Heagney's] background\n\nthat would have a negative impact on [his] suitability for the\n\nposition of Fitchburg [P]olice [C]hief.\" Unsworth did indicate,\n\nthough, that BadgeQuest was still waiting for Heagney's personnel\n\nfile from the ATF.\n\n The next significant development occurred on March 17,\n\n2014, before Heagney's personnel file arrived from the ATF. On\n\nthat date, Wong's office received an anonymous letter that raised\n\nconcerns about Heagney's pending nomination for Fitchburg Police\n\nChief. The letter stated that Heagney had worked and had been\n\ninvolved in various incidents of misconduct at the Attleboro,\n\nFalmouth, and Franklin Police Departments. The letter also stated\n\nthat Heagney had been charged with various criminal offenses\n\nrelated to pistol whipping an individual (which subsequent\n\ninvestigation revealed to be his ex-girlfriend) but that the\n\ncriminal \"case was dismissed[.]\"\n\n At Wong's request, Stephens immediately asked BadgeQuest\n\nto \"check out\" the allegations in the letter, which BadgeQuest\n\nbegan to do. Before BadgeQuest had conclusively verified any of\n\nthe letter's allegations, however, Stephens sent Unsworth an email\n\non the afternoon of March 18, 2014, in which he called off the\n\nBadgeQuest investigation into Heagney. In his email to Unsworth\n\nexplaining why, Stephens gave as \"[r]easons\": (1) \"[y]our question\n\n\n - 6 -\n\fearly on to him about any problems in the past . . . that we should\n\nknow about. He answered no\"; (2) \"[a]pplication was not filled out\n\nwith all the police jobs that he had early in his career\"; and (3)\n\n\"[h]e has lost Mayor Wong's support.\"\n\n On the afternoon of March 18, 2014, Wong spoke with\n\nHeagney and gave him an end-of-business-day deadline to withdraw\n\nhis name as an applicant for the chief of police position. After\n\nthat deadline passed and Heagney still had not withdrawn his name,\n\nWong sent an email to the city council in which she withdrew her\n\nnomination of Heagney to be the Fitchburg Police Chief. In the\n\nemail, Wong stated that \"[t]he nomination was subject to the\n\nexecution of a contract and a background check, both of which have\n\nbeen suspended.\"\n\n Local newspapers covered Wong's withdrawal of Heagney's\n\nnomination. One of the articles about this news, written by Paula\n\nOwen, appeared in the Worcester Telegram & Gazette and stated:\n\n\"Now, Ms. Wong claims the 46-year-old ATF agent, who runs the\n\nRochester, N.Y., office, was not forthcoming on his résumé about\n\nhis work experience or about a court case on alleged assault and\n\nbattery and other charges when he was 21.\"1\n\n\n 1 That same article also included a statement attributed to\nWong that she sent via text to Owen: \"The city is not interested\nin pursuing a candidate for police chief who was not forthcoming\nwith his résumé.\" Another article, published in the Fitchburg\nSentinel & Enterprise, included a statement attributed to Wong\n\n\n\n - 7 -\n\f Fitchburg eventually received Heagney's personnel files\n\nfrom the ATF and the Falmouth and Attleboro Police Departments.\n\nThose files included the following information related to the\n\n\"court case\" -- and the underlying allegations of criminal conduct\n\nby Heagney -- referenced in the anonymous letter. In 1988, Cheryl\n\nCollins, Heagney's ex-girlfriend, filed complaints with the\n\nFranklin and Wrentham Police Departments against Heagney in which\n\nshe alleged that he had physically abused and threatened her with\n\na pistol. Following the allegations, Heagney was placed on\n\ntemporary leave from his job at the Franklin Police Department\n\nafter an internal investigation. The criminal case against Heagney\n\nin Wrentham District Court for assault and battery of Collins with\n\na dangerous weapon ended in Heagney's acquittal.\n\n The personnel files also revealed other disciplinary\n\nactions that had been taken against Heagney by police departments\n\nat which he had previously worked. Those actions were for various\n\ninstances of misconduct, including fabricating a police report,\n\nacting unprofessionally during a suicide watch, and failing to\n\nappear in court for a trial.\n\n\n\nthat \"[t]he city [wa]s not interested in pursuing a candidate for\npolice chief who withheld key information about their work résumé\nand character.\" The jury rejected Heagney's defamation claims\narising from these statements because the jury found that both\nstatements were true. On appeal, the parties do not contest the\njury's verdicts as to these statements, so we need not address\nthem here.\n\n\n - 8 -\n\f In 2015, Heagney filed suit in state court against Wong,\n\nFitchburg, BadgeQuest, and Unsworth. The defendants removed the\n\ncase to federal court based on diversity jurisdiction. See 28\n\nU.S.C. § 1332(a). Heagney's complaint alleged that all defendants\n\nexcept for Fitchburg had defamed him in violation of Massachusetts\n\nlaw and that Fitchburg had violated Massachusetts General Laws\n\nChapter 151B by not hiring Heagney due to his failure to inform it\n\nof the criminal case against him. As relevant here, Chapter 151B\n\nprovides that it is unlawful for\n\n an employer, himself or through his agent, . . . to\n exclude, limit or otherwise discriminate against any\n person by reason of his or her failure to furnish such\n information through a written application or oral\n inquiry or otherwise regarding . . . an arrest,\n detention, or disposition regarding any violation of law\n in which no conviction resulted.\n\nMass. Gen. Laws ch. 151B, § 4(9).\n\n Prior to trial, Heagney settled with BadgeQuest and\n\nUnsworth. Heagney then proceeded to trial on his claims against\n\nWong and Fitchburg. At the end of the trial on those claims, the\n\ndefendants filed a motion for judgment as a matter of law under\n\nFederal Rule of Civil Procedure 50(a), which the District Court\n\ndenied. The case was submitted to the jury. The jury specifically\n\nfound that Wong had made the statement to the Worcester Telegram\n\n& Gazette that Heagney \"was not forthcoming . . . about a court\n\ncase on alleged assault and battery and other charges when he was\n\n21\" and that this statement was both false and defamatory. On\n\n\n - 9 -\n\fthis defamation claim, the jury awarded Heagney $125,000 \"for\n\ndamages to his reputation, including emotional distress\" and\n\n$625,000 \"for economic losses.\" Separately, the jury found that\n\nthe other statements at issue were not false.\n\n The jury also found Fitchburg liable, in violation of\n\nChapter 151B, for discriminating against Heagney because of his\n\nfailure to disclose the information concerning the criminal case\n\nagainst him. But, with respect to damages, the jury found, based\n\non after-acquired evidence of administrative actions that had been\n\ntaken against Heagney by other police departments, that Fitchburg\n\nwould have refused to hire Heagney on the basis of that evidence\n\nalone and thus independently of the fact that he had not disclosed\n\nthe criminal case. As a result, the jury did not award Heagney\n\nany compensatory damages on the Chapter 151B claim. The jury did\n\naward him, however, $750,000 in punitive damages on that claim.\n\n The defendants renewed their motion for judgment as a\n\nmatter of law under Federal Rule of Civil Procedure 50(b) and\n\nalternatively requested a new trial under Federal Rule of Civil\n\nProcedure 59(a) or remittitur under Federal Rule of Civil Procedure\n\n59(e). The District Court denied all the motions. Wong and\n\nFitchburg now appeal.\n\n II.\n\n Wong's appeal of the denial of both her motion for\n\njudgment as a matter of law and for a new trial on Heagney's\n\n\n - 10 -\n\fdefamation claim focuses on the statement attributed to her that\n\nappeared in the story by Owen that was published in the Worcester\n\nTelegram & Gazette on March 20, 2014. To repeat, the story stated,\n\nin relevant part: \"Now, Ms. Wong claims the 46-year old ATF agent,\n\nwho runs the Rochester, N.Y., office, was not forthcoming on his\n\nrésumé about his work experience or about a court case on alleged\n\nassault and battery and other charges when he was 21.\"\n\n Under Massachusetts law, to prove defamation against a\n\npublic figure (which Heagney concedes that he is), Heagney must\n\nshow that: (1) Wong made a statement concerning him to a third\n\nparty; (2) the statement could damage Heagney's reputation in the\n\ncommunity; (3) Wong made the statement with actual malice; and (4)\n\nthe statement caused economic loss or is actionable without\n\neconomic loss. See Ravnikar v. Bogojavlensky, 782 N.E.2d 508,\n\n510-11 (Mass. 2003).\n\n The jury found that Wong made the entire statement\n\nattributed to her in the story by Owen. The jury found that the\n\nportion of the statement in which Wong stated that Heagney \"was\n\nnot forthcoming on his résumé about his work experience\" was not\n\nfalse. But, the jury found that the portion of the statement in\n\nwhich Wong stated that Heagney \"was not forthcoming . . . about a\n\ncourt case on alleged assault and battery and other charges when\n\nhe was 21\" was both false and defamatory. The jury's finding on\n\n\n\n\n - 11 -\n\fthat portion of the statement is the sole basis for the finding of\n\nliability on Heagney's defamation claim.\n\n We can easily dispose of Wong's threshold contention\n\nthat the evidence was too slight to permit a jury to find that she\n\nin fact made the statement at issue to the Worcester Telegram &\n\nGazette. Owen, the reporter at the Worcester Telegram & Gazette\n\nwho wrote the March 20, 2014 article, testified at trial that Wong\n\nmade the statement to her during a phone call. The jury reasonably\n\ncould have credited Owen's testimony as to that point.\n\n Nevertheless, truth is \"an absolute defense\" to this\n\ndefamation claim.2 Noonan v. Staples, Inc., 556 F.3d 20, 26 (1st\n\nCir. 2009) (citing Mass. Sch. of Law at Andover, Inc. v. Am. Bar\n\n\n 2 A Massachusetts statute permits a plaintiff in a libel\naction to recover for a truthful defamatory statement if the\nplaintiff proves that it was made in writing with actual malice.\nSee Mass. Gen. Laws ch. 231, § 92. However, the First Amendment\nlimits the scope of that statute such that \"a statement on matters\nof public concern must be provable as false before there can be\nliability under state defamation law.\" Shaari v. Harvard Student\nAgencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998) (internal\nquotation marks omitted) (emphasis added); see also Materia v.\nHuff, 475 N.E.2d 1212, 1216 n.6 (Mass. 1985) (\"[A] judge cannot\nconstitutionally apply [the statute] to a public figure or public\nofficial.\"); Ravnikar, 782 N.E.2d at 510 n.3 (noting that \"the\nprovisions of the First Amendment to the United States\nConstitution\" limit \"[t]he scope of the statute\"); White v. Blue\nCross & Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036 (Mass.\n2004). Because the parties agree that Heagney is a public figure,\nsee Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 287 (Mass. 2000)\n(holding that \"police officers . . . are 'public officials' for\npurposes of defamation\"), and that the statement at issue was on\na matter of public concern, we do not need to address whether Wong\nmade that statement with actual malice if we decide that the\nevidence was insufficient to show that the statement was false.\n\n\n - 12 -\n\fAss'n, 142 F.3d 26, 42 (1st Cir. 1998); McAvoy v. Shufrin, 518\n\nN.E.2d 513, 517 (Mass. 1988)); see also Shaari, 691 N.E.2d at 927.\n\nAnd, under the First Amendment, Heagney bears the burden of showing\n\nthat the statement at issue was false. See Philadelphia\n\nNewspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). Moreover,\n\nthe First Amendment compels us to \"afford plenary review\" instead\n\nof the \"usual deferential Rule 50 standard\" to \"'mixed fact/law\n\nmatters which implicate core First Amendment concerns,' such as\n\nthe jury's conclusions regarding falsity.\" Sindi v. El-Moslimany,\n\n896 F.3d 1, 14 (1st Cir. 2018) (quoting AIDS Action Comm. of Mass.,\n\nInc. v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994)).\n\n Essentially, Wong's position is that the record shows\n\nthat Heagney was, in fact, \"not forthcoming\" about the \"court case\"\n\ninvolving the criminal charges that had been lodged against him in\n\nthe ordinary sense of being \"not forthcoming.\" After all, she\n\npoints out, Heagney at no point actually brought the case to the\n\nattention of Wong or the search committee. Thus, Wong contends\n\nthe statement at issue cannot ground a defamation claim because it\n\nwas true rather than false. And, we conclude, applying plenary\n\nreview, that, under the ordinary construction of the phrase \"not\n\nforthcoming,\" Wong is right. See Oxford Living Dictionaries:\n\nEnglish, https://en.oxforddictionaries.com/definition/forthcoming\n\n(defining \"forthcoming\" as \"willing to divulge information\");\n\n\n\n\n - 13 -\n\fMerriam-Webster Dictionary (2005) (defining \"forthcoming\" as\n\n\"characterized by openness, candidness, and forthrightness\").\n\n The evidence shows that Heagney had been put on notice\n\nthat \"a thorough and comprehensive background investigation\n\nw[ould] be conducted\" as part of the selection process. Yet,\n\ndespite multiple opportunities during that process to do so,\n\nHeagney never in fact \"alert[ed] the Defendants that his background\n\ninvestigation would reveal [the assault and battery] allegations,\n\nthe resulting internal affairs investigation, the suspension, and\n\nthe subsequent criminal charges.\" In fact, when asked on the\n\ninitial application form whether he had \"ever been disciplined,\n\nfired, or forced to resign because of misconduct or unsatisfactory\n\nemployment\" and whether he had \"any issues that [the committee]\n\nshould be aware of,\" Heagney answered \"no.\"\n\n Heagney nevertheless argues that the jury could have\n\nfound that the statement at issue was false because it \"conveyed\n\nthat Heagney wrongfully concealed the prior criminal charges\n\nbecause he was obligated to disclose the charges to the City.\"\n\nHeagney contends, in that respect, that the statement was false,\n\nbecause \"[t]he law is clear that Mr. Heagney was legally allowed\n\nto withhold this information about the prior criminal charges he\n\nwas acquitted on[.]\" See Mass. Gen. Laws ch. 151B, § 4(9).\n\n We do not see, however, why Chapter 151B is relevant to\n\nthe question of whether the statement at issue was true or false.\n\n\n - 14 -\n\fThe statement makes no assertion as to whether Heagney was\n\nprotected by Massachusetts law from being asked or required to\n\nfurnish information concerning the prior criminal case or whether\n\nHeagney violated Massachusetts law by not doing so. The portion\n\nof the statement at issue simply describes, accurately, his failure\n\nto be forthcoming as to the existence of that case. Whether or\n\nnot, under Chapter 151B, Heagney's failure to furnish the protected\n\ninformation could lawfully provide the basis for Wong's decision\n\nto withdraw his nomination for the position thus does not bear on\n\nwhether he was in fact forthcoming in regard to that information.\n\nCertainly the protection afforded to him by Chapter 151B did not\n\nin any way bar Heagney from being forthcoming about the criminal\n\ncase against him if he wished to be.\n\n This conclusion comports with our decision in Noonan v.\n\nStaples, Inc., 556 F.3d at 27. There, we declined to construe\n\nMassachusetts defamation law to permit \"even an objectively true\n\nstatement [to] give rise to a libel claim if reasonable readers\n\nmight infer from it other, untrue characteristics of the plaintiff\n\nor conduct by him.\" Id. (noting that \"our survey of the relevant\n\nMassachusetts law ha[d] uncovered no clear support for this\n\ninterpretation\"). And, under the \"much simpler\" \"truth-or-falsity\n\ninquiry\" that we continue to discern in Massachusetts law, we find\n\nhere that \"everything said in [Wong's statement] was true . . . .\"\n\nId. at 28 (citing Murphy v. Boston Herald, Inc., 865 N.E.2d 746,\n\n\n - 15 -\n\f754 (Mass. 2007); Jones v. Taibbi, 512 N.E.2d 260, 266 (Mass.\n\n1987)).\n\n In sum, the fact that the statement attributed to Wong\n\nmay help Heagney in bringing his Chapter 151B claim does nothing\n\nto make that statement false rather than true. And yet that\n\nstatement must be false in order to sustain Heagney's defamation\n\nclaim. Accordingly, because we conclude that the statement at\n\nissue was not false, we need not address whether the evidence\n\nsufficed to permit a jury to find any of the other elements of the\n\ntort of defamation nor Wong's arguments relating to damages. We\n\nthus reverse the judgment on the defamation claim.\n\n III.\n\n We turn, then, to Fitchburg's challenges to the portion\n\nof the judgment that concerns Heagney's claim against Fitchburg\n\nfor allegedly violating Chapter 151B. As we have noted, the jury\n\nfound for Heagney on that claim. And, although the jury awarded\n\nhim no compensatory damages, it did find that he was entitled to\n\na sizable punitive damages award. Fitchburg raises several\n\nobjections to the District Court's denial of its motion for\n\njudgment as a matter of law and for a new trial or remittitur on\n\nthe Chapter 151B claim as well as to the award of punitive damages.\n\nWe consider each of these arguments in turn.\n\n\n\n\n - 16 -\n\f A.\n\n Fitchburg first challenges the sufficiency of the\n\nevidence with respect to the Chapter 151B claim on the following\n\ngrounds. Fitchburg contends that the evidence sufficed to show\n\nonly that it obtained the information about the prior criminal\n\ncase against Heagney from a third party unprompted, that it did so\n\nwithout either having prompted or directly asked Heagney to\n\ndisclose it, and that it then relied solely on the content of that\n\ninformation to make its employment decision and not on the fact\n\nthat the information had not been disclosed by Heagney. Fitchburg\n\nthen goes on to contend, citing Bynes v. School Committee of\n\nBoston, 581 N.E.2d 1019 (Mass. 1991), that, in such circumstances,\n\nChapter 151B does not apply. See id. at 1021-22.\n\n But, Fitchburg makes no argument, that, if the evidence\n\nsufficed to show that its decision not to hire Heagney was based\n\non Heagney's failure to disclose information regarding the\n\ncriminal case, rather than simply on the content of the information\n\nitself, Chapter 151B does not apply because Fitchburg never asked\n\nhim to disclose the information and only obtained it, unprompted,\n\nfrom a third party. Accordingly, if the evidence does suffice to\n\nshow that Fitchburg declined to move forward with Heagney's\n\ncandidacy because of the nondisclosure, rather than simply because\n\nof the content of the information that he did not disclose, we\n\nmust reject this sufficiency challenge. And, reviewing \"de novo,\n\n\n - 17 -\n\f[while] viewing the evidence in the light most favorable to the\n\nverdict,\" Kennedy v. Town of Billerica, 617 F.3d 520, 527 (1st\n\nCir. 2010) (citing Jennings v. Jones, 587 F.3d 430, 438 (1st Cir.\n\n2009); Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st\n\nCir. 2008)), we disagree with Fitchburg's characterization of what\n\nthe record sufficed to show.\n\n As we have already explained, a jury could reasonably\n\nfind that Wong made the statement -- confirmed by Owen's in-court\n\ntestimony and published in the Worcester Telegram & Gazette --\n\nthat she withdrew Heagney's nomination because he \"was not\n\nforthcoming about . . . a court case on alleged assault and battery\n\nand other charges when he was 21.\" That statement quite clearly\n\nrepresents that Wong made that decision not because of the criminal\n\ncase against Heagney, but because Heagney was \"not forthcoming\"\n\nabout that case. Accordingly, we reject this aspect of Fitchburg's\n\nsufficiency challenge.\n\n B.\n\n Fitchburg next challenges the District Court's charge to\n\nthe jury, over its objection, that this was a so-called \"mixed\n\nmotive\" case. In a Chapter 151B case of this type, the plaintiff\n\nneed not prove that the prohibited ground for the employment action\n\n-- here, Heagney's failure to disclose the criminal case -- was\n\nthe sole basis for that action. Rather, the plaintiff need only\n\nprovide \"strong\" or \"direct\" evidence that it was one reason.\n\n\n - 18 -\n\fHaddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59, 76 (Mass. 2009)\n\n(internal quotation marks omitted). If the plaintiff makes that\n\nshowing, the burden then shifts to the defendant to prove that it\n\n\"would have taken the same action absent the unlawful motive\" on\n\nthe basis of its other \"legitimate reason[s], standing alone.\"\n\nId. at 77 (internal quotation marks omitted).\n\n Fitchburg contends that the District Court erred in\n\nissuing the mixed-motive instruction here because Heagney had not\n\nput forth the requisite \"strong\" or \"direct\" evidence that\n\nFitchburg had relied on an illegitimate reason in refusing to hire\n\nhim. See id. Relatedly, Fitchburg contends that, insofar as the\n\nmixed-motive instruction was warranted, Fitchburg was entitled to\n\njudgment as a matter of law because no reasonable jury could find\n\nthat Fitchburg had failed to meet its burden to prove that it would\n\nhave refused to hire Heagney even apart from his nondisclosure of\n\nthe criminal case.\n\n In reviewing whether the evidence suffices to prove\n\ndiscrimination under Chapter 151B on a mixed-motive theory, we\n\nmust construe the evidence in the light most favorable to the\n\nverdict. See id. at 64 n.5. And, we review de novo whether that\n\nevidence, so construed, suffices. See Kennedy, 617 F.3d at 527.\n\n Before turning directly to our consideration of\n\nFitchburg's challenge to the evidentiary basis for both the mixed-\n\nmotive instruction and the sufficiency of the evidence of liability\n\n\n - 19 -\n\funder that instruction, however, we need to make one point clear\n\nat the outset about the focus of our inquiry. That point concerns\n\nthe timing of the employment decision by Fitchburg that Heagney\n\ncontends violated Chapter 151B.\n\n Fitchburg contends that the employment decision at issue\n\nconcerns whether Fitchburg would have ultimately hired Heagney for\n\nthe position. But, Chapter 151B expressly applies to the decisions\n\nof \"an employer, himself or through his agent, . . . to exclude,\n\nlimit, or otherwise discriminate\" against an applicant. Mass.\n\nGen. Laws ch. 151B, § 4(9) (emphasis added). And, Fitchburg\n\nprovides no authority for the doubtful proposition that Wong was\n\nnot acting in her official capacity as mayor of Fitchburg when she\n\ndecided not to nominate Heagney or that her official role in the\n\nemployment decision would have no bearing on whether Fitchburg\n\nviolated Chapter 151B.\n\n To the contrary, the record supportably shows that\n\nWong's nomination of Heagney was a necessary step before the city\n\ncouncil would even consider a candidate. Moreover, Wong did in\n\nfact withdraw Heagney's nomination to the city council, which ended\n\nHeagney's candidacy for the position.\n\n Thus, we conclude that, to determine whether the\n\nevidence sufficed to warrant the mixed-motive instruction -- and,\n\nrelatedly, whether the evidence sufficed to support a finding of\n\nliability under that instruction -- we must consider the portions\n\n\n - 20 -\n\fof the record that concern Wong's motivation for deciding to\n\nwithdraw Heagney's nomination. Cf. Price Waterhouse v. Hopkins,\n\n490 U.S. 228, 252 (1989) (\"An employer may not . . . prevail in a\n\nmixed-motives case by offering a legitimate and sufficient reason\n\nfor its decision if that reason did not motivate it at the time of\n\nthe decision.\").\n\n The timing of Wong's decision to withdraw Heagney's\n\nnomination, however, is itself a source of dispute between the\n\nparties, and so we need to address that point up front as well.\n\nThe parties agree that Wong formally withdrew that nomination in\n\nan email to the city council around 5 p.m. on March 18, 2014.\n\nFitchburg asserts that Wong had not yet definitely made up her\n\nmind to withdraw her support from Heagney when she made that call.\n\nBut, Heagney argues, Wong had already made up her mind not to\n\nnominate Heagney when she called him around 3:45 p.m. that\n\nafternoon to ask him to withdraw his name from consideration.\n\n We conclude that a jury could reasonably infer from the\n\nevidence that Wong had already made up her mind not to nominate\n\nHeagney at the point that she called him to ask him to withdraw\n\nhis name. We thus focus on what the record shows about what Wong\n\nknew up until that time in assessing both whether the mixed-motive\n\ninstruction was warranted and whether a reasonable jury could have\n\nfound that Wong would not have taken the same action on the basis\n\nof a motive other than the one prohibited by Chapter 151B.\n\n\n - 21 -\n\f 1.\n\n We first address Fitchburg's contention that it was\n\nentitled to judgment as a matter of law because Heagney failed to\n\nmeet his initial burden to provide \"either 'direct or strong'\n\nevidence\" that his failure to disclose the prior criminal case did\n\nmotivate Wong's decision not to nominate him. Haddad, 914 N.E.2d\n\nat 77 (quoting Wynn & Wynn, P.C. v. Massachusetts Comm'n Against\n\nDiscrimination, 729 N.E.2d 1068, 1078 (Mass. 2000), overruled on\n\nother grounds by Stonehill Coll. v. Massachusetts Comm'n Against\n\nDiscrimination, 808 N.E.2d 205 (Mass. 2004)). \"Direct evidence in\n\nthis context is evidence that if believed, results in an\n\ninescapable, or at least highly probable, inference that a\n\nforbidden bias was present in the workplace.\" Wynn & Wynn, 729\n\nN.E.2d at 1078 (internal quotation marks omitted).\n\n \"[I]n determining whether a 'mixed-motive' claim\n\nsurvives a motion for judgment as a matter of law, a [district]\n\ncourt must determine whether the plaintiff has put forth sufficient\n\nevidence for a jury to conclude that it is more likely than not\n\nthat the [illegitimate ground] was 'a motivating factor' for the\n\ndefendant's employment decision.\" Resare v. Raytheon Co., 981\n\nF.2d 32, 40 (1st Cir. 1992). Reviewing the District Court's\n\ndetermination de novo and reading \"the evidence, taking all\n\ninferences in favor of [the non-moving party],\" Burton v. Town of\n\n\n\n\n - 22 -\n\fLittleton, 426 F.3d 9, 14 (1st Cir. 2005), we conclude that Heagney\n\nmet his initial burden.\n\n The most \"direct\" evidence is the statement attributed\n\nto Wong in the Worcester Telegram & Gazette that Owen testified\n\nthat Wong made to her. That statement asserts that Wong withdrew\n\nHeagney's nomination because Heagney \"was not forthcoming about .\n\n. . a court case on alleged assault and battery and other charges\n\nwhen he was 21.\"\n\n That statement, if attributed to Wong and credited, was\n\ncertainly not a \"[s]tray remark[] in the workplace,\" \"[a]\n\nstatement[] by [someone] without the power to make employment\n\ndecisions,\" or a \"statement[] made by [a] decision maker[]\n\nunrelated to the decisional process itself.\" Wynn & Wynn, 729\n\nN.E.2d at 1078. The record, moreover, also contains \"strong\"\n\ncircumstantial evidence that Wong was motivated by Heagney's\n\nfailure to disclose the criminal case. The jury heard testimony\n\nthat Wong was prepared to send Heagney's nomination to the city\n\ncouncil up until the moment that she received the anonymous letter\n\non March 17, 2014 informing her, among other things, that Heagney\n\nhad been charged with pistol whipping an individual. By her own\n\nadmission, however, Wong decided to withdraw her support for\n\nHeagney before she \"knew whether the allegations about the criminal\n\ncharges mentioned in the letter were true.\"\n\n\n\n\n - 23 -\n\f \"[A] reasonable jury could\" thus infer that it was\n\nHeagney's failure to disclose the criminal case that motivated\n\nWong's decision to withdraw his nomination. Burton, 426 F.3d at\n\n14. Accordingly, we see no reason to reverse the District Court's\n\ndetermination that Heagney met his burden to \"first . . . present\n\na convincing case that there [wa]s an illegitimate motive present.\"\n\nHaddad, 914 N.E.2d at 78.\n\n 2.\n\n We, turn, then to the question whether Fitchburg carried\n\nits burden to show that, \"at the time of its decision to exclude\n\n. . . Heagney as an applicant for Police Chief, [it] had a lawful,\n\nnondiscriminatory reason to do so, and that this lawful reason,\n\nstanding alone, would have caused it to make the same decision.\"\n\nAs to that question, \"once the plaintiff has met her initial burden\n\nof persuasion on the presence of an illegitimate motive, the\n\ndecision whether the employer has met its burden of proving that\n\nanother legitimate, nondiscriminatory reason actually led it to\n\nmake the decision, is normally for the jury or other finder of\n\nfact to decide.\" Wynn & Wynn, 729 N.E.2d at 1081. In fact, we\n\nmay overturn the jury's verdict only \"when the evidence points so\n\nstrongly and overwhelmingly in favor of the moving party that no\n\nreasonable jury could have returned a verdict adverse to that\n\nparty.\" Monteagudo v. Asociación de Empleados del Estado Libre\n\nAsociado de P.R., 554 F.3d 164, 170 (1st Cir. 2009). And, in\n\n\n - 24 -\n\freviewing the sufficiency of the evidence on that score, \"we may\n\nnot take into consideration the credibility of witnesses, resolve\n\nconflicts in testimony, or in any other manner weigh the evidence.\"\n\nÁlvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152\n\nF.3d 17, 23 (1st Cir. 1998).\n\n Fitchburg points to two non-discriminatory reasons that,\n\nit contends, the record indisputably shows would have been the\n\nbasis -- even setting aside Heagney's failure to disclose the prior\n\ncriminal case -- for its decision not to go forward with Heagney's\n\ncandidacy. But, we are not persuaded that a reasonable jury would\n\nhave been required to find that Wong would have withdrawn Heagney's\n\nnomination based on these reasons alone.\n\n First, Fitchburg points to Heagney's omissions regarding\n\nhis prior employment history. Fitchburg did provide some evidence\n\nthat Heagney's omissions in this regard in fact motivated Wong's\n\ndecision not to nominate him. For example, the record supportably\n\nshows that, by the time that she made up her mind not to nominate\n\nHeagney, Wong had learned the following. The record supportably\n\nshows that Wong had learned that Heagney had not disclosed on his\n\nrésumé or his application materials that he had worked at the\n\nFalmouth Police Department from 1990 to 1993, despite representing\n\non those materials that he had worked as a patrolman in the\n\nFranklin Police Department from 1987 to 1994. And, the record\n\nsupportably shows that Wong had learned that Heagney had worked at\n\n\n - 25 -\n\fthe Attleboro Police Department from 1985 to 1987, even though\n\nthat information had not been provided on Heagney's résumé or his\n\napplication materials. Wong also testified that she decided to\n\nwithdraw her support on the basis of those omissions because she\n\nhad concluded that Heagney would not be successful before the city\n\ncouncil given that \"the only information [she] could give the\n\ncouncil was that what [she] had given them, his résumé, was a lie.\"\n\n But, Heagney testified that, although he had not\n\nincluded his prior work at the Attleboro and Falmouth Police\n\nDepartments on his résumé or application materials, he had told\n\nWong and other search committee members during a phone interview\n\nconducted on March 3 and during an in-person interview conducted\n\non March 8 about his experience working at those departments. The\n\nrecord also supportably shows that Wong was ready to nominate\n\nHeagney after the latter interview.\n\n Thus, a jury could reasonably find on this record that\n\nwhat changed between March 8 and March 18 was Wong's receipt of\n\nthe anonymous letter. A jury could reasonably have credited\n\nHeagney's testimony that, by the time that Wong's office had\n\nreceived the letter on March 17, he had already informed Wong of\n\nhis previous employment at the Attleboro and Falmouth Police\n\nDepartments. If a jury credited that testimony, then it could\n\nreasonably infer that Wong was already aware of that previous\n\nemployment and its omission from Heagney's résumé and application\n\n\n - 26 -\n\fmaterials when she chose him as the finalist. Accordingly, a jury\n\ncould reasonably find, on this record, that Wong would not have\n\nwithdrawn Heagney's nomination when she did based only on his\n\nfailure to include this employment on his application materials.\n\nFor this reason, the record does not support Fitchburg's contention\n\nthat no reasonable jury could find that Wong's motives were mixed.\n\n Second, Fitchburg argues that the record indisputably\n\nshows that Wong would have decided not to nominate Heagney solely\n\nbecause Heagney was \"combative, insubordinate, and rude\" during\n\nher call with him where she asked him to withdraw. But, as we\n\nhave explained, we must conclude, after reading the evidence in\n\nthe light most favorable to the verdict, that a reasonable jury\n\ncould have found that Wong had already made up her mind not to\n\nnominate Heagney before she got on the phone with him.\n\nAccordingly, this line of argument also lacks merit.\n\n C.\n\n Fitchburg next challenges the District Court's \"after-\n\nacquired evidence\" instruction to the jury, which stated, in\n\nrelevant part:\n\n [E]vidence that . . . sometime after the city excluded\n Mr. Heagney as an applicant, the city acquired evidence\n that Mr. Heagney was subject to administrative actions\n that may or may not have constituted discipline while\n serving as a police officer . . . is so-called after-\n acquired evidence, and its purpose is limited. . . .\n [I]t is irrelevant to the question of whether defendants\n are liable for violating General Law Chapter 151B.\n Rather, the possible relevance would be to limit or\n\n\n - 27 -\n\f exclude damages that you might find that Mr. Heagney\n suffered as a result of any violation.\n\nBased on this instruction, the jury found that \"the administrative\n\naction taken against Scott L. Heagney was of such severity that,\n\nhad . . . Fitchburg known of this administrative action in March\n\n2014, it would have in fact refused to hire Scott L. Heagney on\n\nthose grounds alone.\" The jury therefore awarded Heagney no\n\ncompensatory damages on his Chapter 151B claim.\n\n Fitchburg contends that the District Court's\n\n\"characterization of [the] files from other departments and the\n\nATF as 'After Acquired Evidence'\" and the resulting exclusion of\n\nevidence relating to those files were so \"highly prejudicial to\n\nthe City\" that it is entitled to a new trial.3 We review the\n\nDistrict Court's \"denial of a motion for a new trial for abuse of\n\ndiscretion.\" Teixeira v. Town of Coventry by & through Przybyla,\n\n882 F.3d 13, 16 (1st Cir. 2018) (citing Ira Green, Inc. v. Military\n\nSales & Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014)). \"An abuse of\n\ndiscretion will be found whenever a reviewed ruling is based on an\n\nerror of law.\" Ira Green, 775 F.3d at 18. Because Fitchburg\n\n\n 3 Fitchburg appears to have argued below that the jury's\nfinding that Fitchburg would not have hired Heagney had it known\nof the administrative actions against him -- which it contends the\njury should have been allowed to consider in determining liability\n-- means that the \"Court should enter a judgement for the City on\nthe [Chapter] 151B claim.\" But, Fitchburg seems to have abandoned\nthat argument on appeal, arguing only that the alleged error in\nissuing the \"After-Acquired Evidence\" instruction means only that\n\"[t]he judgment against the City on this claim must be vacated.\"\n\n\n - 28 -\n\fraises a \"question[] as to whether [the] jury instruction[]\n\ncapture[s] the essence of the applicable law,\" we \"afford de novo\n\nreview.\" Teixeira, 882 F.3d at 16 (quoting DeCaro v. Hasbro, Inc.,\n\n580 F.3d 55, 61 (1st Cir. 2009)).\n\n We note that Massachusetts law has not yet expressly\n\n\"adopted, or declined to adopt, th[e] [after-acquired evidence]\n\ndoctrine.\" EventMonitor, Inc. v. Leness, 44 N.E.3d 848, 851 (Mass.\n\n2016) (citing Flesner v. Technical Comm'ns Corp., 575 N.E.2d 1107,\n\n1113-14 (Mass. 1991); Prozinski v. Ne. Real Estate Servs., LLC,\n\n797 N.E.2d 415, 425 (Mass. App. Ct. 2003)). But, we need not\n\ndecide whether Massachusetts law has \"implicitly adopted\" the\n\ndoctrine. Prozinski, 797 N.E.2d at 425. Fitchburg challenges the\n\ninstruction only on the ground that it erroneously stated that the\n\njury could consider the after-acquired evidence solely for the\n\nlimited purpose of assessing damages and not also for the purpose\n\nof assessing liability.\n\n Specifically, Fitchburg concedes that there is much\n\nprecedent in \"wrongful discharge\" cases limiting the consideration\n\nof after-acquired evidence only to the assessment of damages and\n\nnot liability. See, e.g., Nieves-Villanueva v. Soto-Rivera, 133\n\nF.3d 92, 101 (1st Cir. 1997) (\"[A]fter-acquired evidence is\n\nnormally admissible only as to remedy, and not on liability.\");\n\nKapche v. Holder, 677 F.3d 454, 464 (D.C. Cir. 2012) (\"[E]vidence\n\nof the plaintiff's wrongdoing acquired subsequent to an employer's\n\n\n - 29 -\n\fdiscriminatory hiring decision does not negate liability.\");\n\nSerrano v. Cintas Corp., 699 F.3d 884, 903 (6th Cir. 2012)\n\n(\"[A]fter-the-fact evidence of [employee wrongdoing] should be\n\nconsidered only in determining the amount of damages due to the\n\nindividual and not in the initial liability stage\"). But,\n\nFitchburg contends, this limitation on the jury's consideration of\n\nafter-acquired evidence has no application to \"failure to hire\"\n\ncases like this one.\n\n Fitchburg, however, has not pointed to a single\n\nprecedent -- from any court, let alone one from Massachusetts --\n\nwhich has permitted an employer to rely on after-acquired evidence\n\nto defeat the plaintiff's showing of liability for discrimination,\n\nwhether the discrimination motivates a \"failure to hire\" or a\n\n\"wrongful discharge.\" To the contrary, precedent seems to bar an\n\nemployer from doing so. See, e.g., Price Waterhouse, 490 U.S. at\n\n252 (\"An employer may not . . . prevail in a mixed-motives case by\n\noffering a legitimate and sufficient reason for its decision if\n\nthat reason did not motivate it at the time of the decision.\"\n\n(emphasis added)); McKennon v. Nashville Banner Pub. Co., 513 U.S.\n\n352, 360 (1995) (\"The employer could not have been motivated by\n\nknowledge it did not have [at the time of the decision] and it\n\ncannot now claim that the employee was fired for the\n\nnondiscriminatory reason.\"). Therefore, we conclude that the\n\nDistrict Court did not err in rejecting Fitchburg's contention\n\n\n - 30 -\n\fthat its instruction to the jury not to consider the after-acquired\n\nevidence in determining liability under Chapter 151B requires a\n\nnew trial.\n\n D.\n\n We come, then, to Fitchburg's arguments that the jury's\n\naward of punitive damages cannot be sustained. First, Fitchburg\n\ncontends that the evidence was insufficient to support any punitive\n\ndamages award. In the alternative, Fitchburg contends that the\n\njury's award of punitive damages was unreasonable.\n\n Chapter 151B authorizes the award of punitive damages,\n\nsee Mass. Gen. Laws 151B, § 9; Int'l Fid. Ins. Co. v. Wilson, 443\n\nN.E.2d 1308, 1317 n.20 (Mass. 1983) (\"Under Massachusetts law,\n\npunitive damages may be awarded only by statute.\"), based on\n\n\"common law and constitutional principles,\" Dartt v. Browning-\n\nFerris Indus., Inc., 691 N.E.2d 526, 536 (Mass. 1998). And, under\n\nMassachusetts law, punitive damages are only warranted for\n\n\"intentional and outrageous conduct.\" Haddad, 914 N.E.2d at 63\n\n(emphasis added).\n\n The Supreme Judicial Court (\"SJC\") has explained,\n\nmoreover, that \"[d]iscrimination [under Chapter 151B] necessarily\n\ninvolves an intentional act.\" Id. at 75. Therefore, \"[t]o sustain\n\nan award of punitive damages under [Chapter 151B], a finding of\n\nintentional discrimination alone is not sufficient.\" Id. Instead,\n\nthe plaintiff must make an additional showing that \"the defendant's\n\n\n - 31 -\n\fconduct is [so] outrageous or egregious. . . . that it justifies\n\npunishment and not merely compensation.\" Id. In other words,\n\n\"the fact finder should determine that the award is needed to deter\n\nsuch behavior toward the class of which plaintiff is a member, or\n\nthat the defendant's behavior is so egregious that it warrants\n\npublic condemnation and punishment.\" Id.\n\n Our review of whether the evidence suffices to permit an\n\naward of punitive damages is de novo. See Intercity Maint. Co. v.\n\nLocal 254, Serv. Employees Int'l Union AFL-CIO, 241 F.3d 82, 86\n\n(1st Cir. 2001). And, in performing that review, we must be\n\nmindful that \"[a]n award of punitive damages . . . should be\n\nsustained if it could 'reasonably have [been] arrived at . . .\n\nfrom any . . . evidence . . . presented.'\" Haddad, 914 N.E.2d at\n\n72 (quoting Dartt, 691 N.E.2d at 536) (alteration in original).\n\n 1.\n\n In challenging Fitchburg's contention that there was\n\ninsufficient evidence to support the punitive damages award,\n\nHeagney first contends that the record supportably showed that\n\nWong, a public official, knowingly violated Chapter 151B. Heagney\n\nfurther contends that this evidence of Wong's knowledge alone\n\npermitted a reasonable jury to find that her conduct was\n\n\"outrageous or egregious\" enough to warrant punitive damages. See\n\nHaddad, 914 N.E.2d at 75. Fitchburg counters that, under Haddad,\n\n\"[a]n award of punitive damages requires a heightened finding\n\n\n - 32 -\n\fbeyond mere liability and also beyond a knowing violation of the\n\nstatute.\" Id. (emphasis added). But, we need not decide this\n\ndispute over whether, under Haddad, such a showing of a public\n\nofficial's knowledge that her conduct violated Chapter 151B can\n\nalone suffice to sustain an award of punitive damages. And that\n\nis because we conclude that Heagney did not make the requisite\n\nshowing of knowledge here in any event.4\n\n To show that the evidence does suffice to support a\n\nfinding that Wong knew that her actions violated Chapter 151B,\n\nsuch that punitive damages may be awarded against Fitchburg under\n\nHaddad, Heagney points to testimony from Unsworth and Stephens.\n\nThey testified that they were aware that Fitchburg could not\n\n\n\n 4 Haddad does note that prior Massachusetts \"cases ha[d] held\nthat . . . a defendant know[ing] that it has acted unlawfully by\ninterfering with the legally protected rights of the plaintiff .\n. . could be sufficient to support an award of punitive damages.\"\nId. at 73 (citing Clifton v. Massachusetts Bay Transp. Auth., 839\nN.E.2d 314, 323-24 (Mass. 2005); Goodrow v. Lane Bryant, Inc., 732\nN.E.2d 289, 299 (Mass. 2000); Dartt, 691 N.E.2d at 536-37)\n(emphasis added). Although acknowledging that \"the defendant['s]\nact[ing] with the knowledge that it was interfering with the\nplaintiff's right to be free of unlawful discrimination . . . has\nbeen . . . one circumstance warranting an award of punitive\ndamages,\" Haddad stated that \"an award of punitive damages has\n[also] been allowed\" where \"the defendant's act was otherwise\noutrageous, egregious, evil in motive, or undertaken with reckless\nindifference to the rights of others.\" Id. at 73 (emphasis added).\nHaddad then announced a \"new standard describing the circumstances\nin which punitive damages may be awarded.\" Id. at 75 (emphasis\nadded). That new standard, however, does not appear to address a\ndefendant's deliberate or knowing violation of Chapter 151B, and\nwe have found no post-Haddad case sustaining an award of punitive\ndamages on such a basis alone.\n\n\n - 33 -\n\flawfully ask candidates about a criminal case not resulting in a\n\nconviction and that it could not lawfully exclude a candidate\n\nbecause of the candidate's failure to furnish that information.\n\nHeagney also points to a handbook provided by a law firm to\n\nFitchburg on \"[b]asic considerations in hiring process,\" which\n\ninstructed that \"[e]mployers must be careful how they inquire about\n\nan applicant's criminal history\" and that employers \"may not\n\ninquire about arrests not resulting in conviction.\"\n\n But, none of those materials purport to address a\n\nsituation in which, as was the case here, an employer does not ask\n\nan applicant directly about a prior criminal case but learns of\n\nit, independently and without prompting the applicant, from a third\n\nparty. Nor is this case one in which the evidence is such that a\n\nreasonable jury \"could infer\" from the employer's general\n\npractices -- unlike, for example, from an employer's general\n\npolicies prohibiting racial or gender discrimination -- that the\n\ndefendant \"was aware that [the] discrimination was not legally\n\npermitted.\" Haddad, 914 N.E.2d at 73.\n\n There is also \"scant case law\" in Massachusetts\n\ninterpreting the Chapter 151B provision at issue, let alone any\n\ncase law applying that statute to facts remotely like those we\n\nhave here. In fact, there is some case law that construes the\n\nChapter 151B provision quite narrowly. See, e.g., Bynes, 581\n\nN.E.2d at 1021 (noting that \"the [Massachusetts] Legislature's\n\n\n - 34 -\n\fintent\" in enacting Chapter 151B, § 4(9) \"was merely to protect\n\nemployees from such requests from their employers and not to\n\nproscribe employers from seeking such information elsewhere\");\n\nRyan v. Chief Admin. Justice of Trial Court, 779 N.E.2d 1005\n\n(Table), 2002 WL 31770115 at *3 (Mass. App. Ct. 2002) (unpublished)\n\n(holding that an employer did not violate Chapter 151B § 4(9) where\n\nthe employer \"did not request the information from the plaintiff\");\n\nMcGowan v. Stoneham Police Dep't, 6 M.D.L.R. 1639, 1648 (1984)\n\n(construing the protection afforded by § 4(9) to be \"quite narrow\n\nin scope\" and \"directed primarily at the preemployment inquiry,\n\nparticularly the application form\" (internal quotation marks\n\nomitted)).\n\n We have here, then, a high degree of \"uncertainty of the\n\nstate of the law in Massachusetts\" regarding the conduct at issue.\n\nGoodrow, 732 N.E.2d at 299. We also have a paucity of evidence\n\ndemonstrating knowledge by either Wong or Fitchburg that this\n\nparticular conduct was unlawful under Chapter 151B. We thus\n\nconclude that no reasonable jury could find that Wong\n\n\"intentionally or willfully violated Massachusetts law,\" id., such\n\nthat, under Haddad, for that reason alone the conduct at issue was\n\n\"outrageous or egregious\" enough to warrant punitive damages,\n\nHaddad, 914 N.E.2d at 75.\n\n\n\n\n - 35 -\n\f 2.\n\n Heagney separately responds to Fitchburg's contention\n\nthat the record does not reflect the \"additional level of\n\negregiousness necessary to support an award of punitive damages,\"\n\nHaddad, 914 N.E.2d at 73, by pointing to the portion of the record\n\nthat purportedly shows that Wong concealed her discriminatory\n\nconduct. Specifically, Heagney contends, the record shows that\n\nWong lied at trial by denying that she had read the anonymous\n\nletter, that she had withdrawn Heagney's nomination because of his\n\nfailure to disclose the criminal case, and that she had told Owen\n\nthe same.\n\n Under Haddad's \"definition of outrageous conduct\n\nappropriate specifically for discrimination claims . . . under\n\n[Chapter] 151B,\" id. at 75 (emphasis added), a jury is to consider:\n\n 1. whether there was a conscious or purposeful effort to\n demean or diminish the class of which the plaintiff\n is a part (or the plaintiff because he or she is a\n member of the class);\n 2. whether the defendant was aware that the\n discriminatory conduct would likely cause serious\n harm, or recklessly disregarded the likelihood that\n serious harm would arise;\n 3. the actual harm to the plaintiff;\n 4. the defendant's conduct after learning that the\n initial conduct would likely cause harm;\n 5. the duration of the wrongful conduct and any\n concealment of that conduct by the defendant.\n\nId. We do not see, though, how the record suffices to support a\n\nfinding that the first four of these factors had been satisfied.\n\nNor do we see what basis there is in Massachusetts law for finding\n\n\n - 36 -\n\fthat the evidence pertaining to the last of these factors --\n\nconcerning concealment -- could alone suffice to support an award\n\nof punitive damages in this case. See generally Kiely v. Teradyne,\n\nInc., 13 N.E.3d 615, 620 (Mass. App. Ct. 2014) (\"reject[ing]\n\n[plaintiff's] argument that a showing on a single Haddad factor is\n\nsufficient to support a punitive damages award\").\n\n The jury found that Heagney suffered no actual harm from\n\nthe Chapter 151B violation in that it awarded no compensatory\n\ndamages to Heagney. See id. at 621; cf. Labonte v. Hutchins &\n\nWheeler, 678 N.E.2d 853, 862 (Mass. 1997) (\"scrutiniz[ing] the\n\nrelationship between actual damages and the award of punitive\n\ndamages\"). And, although we recognize that Massachusetts law\n\nimposes no requirement \"that punitive damages may only be awarded\n\nif there is an award of compensatory damages,\" Bain v. City of\n\nSpringfield, 678 N.E.2d 155, 161 (Mass. 1997), the jury's finding\n\nof no actual harm to Heagney counsels, at least to some extent,\n\nagainst the imposition of punitive damages under Haddad, see\n\nHaddad, 914 N.E.2d at 75; Kiely, 13 N.E.3d at 621.\n\n That is especially so here. There was no basis for a\n\nreasonable jury to find that the defendant \"was aware that the\n\ndiscriminatory conduct would likely cause serious harm, or\n\nrecklessly disregarded the likelihood that serious harm would\n\narise,\" Haddad, 914 N.E.2d at 75, as there has been in other cases\n\nin which the second Haddad factor has been found to have been met.\n\n\n - 37 -\n\fSee, e.g., Gyulakian v. Lexus of Watertown, Inc., 56 N.E.3d 785,\n\n799 (Mass. 2016) (finding the second Haddad factor met where the\n\ndefendant-employer was aware that the plaintiff had made multiple\n\nsexual harassment complaints regarding an employee and neglected\n\nto initiate an investigation despite the requirement in its sexual\n\nharassment policy that it do so); Kiely, 13 N.E.3d at 621 (finding\n\nthe second Haddad factor met where the employer did not rehire the\n\nplaintiff despite being aware that the plaintiff had repeatedly\n\ninquired about open positions at least three times and the\n\nplaintiff had spent her entire career at the employer and was\n\ngrandfathered into generous benefits); Dimanche v. Massachusetts\n\nBay Transportation Auth., 893 F.3d 1, 10 (1st Cir. 2018) (noting\n\nthe employer's failure to act despite \"numerous instances of notice\n\nto [defendant] of racially-based and racially-demeaning comments\n\nmade to [the plaintiff]\").5\n\n Nor could a jury have reasonably concluded that the\n\ndefendants engaged in a \"conscious or purposeful effort to demean\n\nor diminish the class of which the plaintiff is a part (or the\n\nplaintiff because he or she is a member of the class).\"6 Haddad,\n\n\n 5 There was thus necessarily also no basis for a reasonable\njury to find that \"the defendant's conduct after learning that the\ninitial conduct would likely cause harm\" counseled in favor of\npunitive damages. Haddad, 914 N.E.2d at 75.\n 6 We note that the District Court's instruction described the\nfirst Haddad factor only as \"[w]hether the city's conduct was\nconscious or purposeful\" instead of the full formulation. Heagney\n\n\n\n - 38 -\n\f914 N.E.2d at 75 (emphasis added). As the defendant points out,\n\n\"this case involved a unique set of circumstances[.]\" The mayor\n\nlearned that the candidate that she had chosen to nominate to be\n\npolice chief had previously been the subject of criminal and\n\ninternal investigations for engaging in domestic violence. She\n\nalso learned that he had not disclosed that information during an\n\nextensive vetting process for this leadership position in law\n\nenforcement. That the mayor decided to withdraw the candidate's\n\nnomination in that specific context does not indicate any\n\n\"purposeful effort\" by Fitchburg -- through Wong -- to demean the\n\nclass that this part of Chapter 151B protects more generally. Id.\n\nAnd, thus, far from \"need[ing] [punitive damages] to deter such\n\nbehavior toward the class of which plaintiff is a member,\" id., we\n\nagree with Fitchburg that such conduct \"is unlikely to be\n\nrepeated.\"\n\n Finally, we cannot conclude that evidence of Wong's\n\npurported \"attempted cover-up\" of the statutory violation by\n\nallegedly lying at trial constitutes \"concealment\" of a degree\n\n\"warrant[ing] public condemnation and punishment.\" Id. at 75. To\n\nbe sure, Heagney points to some precedent supporting the notion\n\nthat a jury may award punitive damages on the basis of a public\n\n\ndoes not make any argument, however, that evidence that Fitchburg's\nconduct was conscious or purposeful (as opposed to its violation\nof Chapter 151B) supports the award of punitive damages, and\nFitchburg does not challenge the instruction.\n\n\n - 39 -\n\fofficial's conduct at trial. See, e.g., Hall v. Ochs, 817 F.2d\n\n920, 927 (1st Cir. 1987) (upholding the jury's award of punitive\n\ndamages under Massachusetts law in part because of the police\n\nofficers' conduct at trial); Ciccarelli v. Sch. Dep't of Lowell,\n\n877 N.E.2d 609, 618 (Mass. App. Ct. 2007) (upholding punitive\n\ndamages award in part because of a superintendent's false testimony\n\nat trial). But this case is readily distinguished from those\n\nprecedents.\n\n In Hall, the defendants, four police officers found to\n\nhave engaged in racially motivated false arrests, argued at trial\n\nthat the plaintiffs' testimony against them was deliberately false\n\nand provided a likely fabricated police report to support their\n\nallegations. See Hall, 817 F.2d at 927-28. \"On this evidence, a\n\nfactfinder might [have] infer[red] that the stark clash could not\n\nhave resulted from innocent misrecollection, and that its\n\nintentional quality intensified any need the jury may have found\n\nfor punishment and deterrence.\" Id. at 928.\n\n In Ciccarelli, moreover, the defendant was a school\n\nsuperintendent who was found to have retaliated against a teacher\n\nwho was about to testify against the city in a separate hearing by\n\nfiring her. At the trial, the superintendent gave false testimony\n\nthat she did not know about the teacher's prospective testimony.\n\nCiccarelli, 877 N.E.2d at 618. But, that evidence was directly\n\ncontradicted by affirmative evidence of the superintendent's\n\n\n - 40 -\n\fpresence at the hearing where the teacher testified. Id.\n\nMoreover, Ciccarelli concluded that the evidence sufficed to show\n\nthat the superintendent later actively fabricated an excuse that\n\nshe fired the teacher because the teacher was not on track to\n\ncomplete coursework toward advanced certification. Id. And, the\n\nrecord further showed that the superintendent had offered to\n\nreinstate the teacher the day before the teacher's prospective\n\ntestimony in the hearing, which, Ciccarelli concluded, \"the jury\n\ncould therefore infer . . . was meant to influence that testimony.\"\n\nId. Ciccarelli thus determined from the totality of this evidence\n\nthat \"such behavior by a high-ranking public official in charge of\n\neducation of a city's children was outrageous\" enough to \"place\n\nthe issue of punitive damages before the jury.\" Id. at 617-18.\n\n Here, by contrast, Wong's account at trial was that she\n\ndecided not to nominate Heagney because he had lied on his résumé\n\nand application materials regarding prior employment. And, the\n\njury found that Wong's statement that Heagney \"was not forthcoming\n\non his résumé about his work experience\" was true. Thus, unlike\n\nin Hall, 817 F.2d at 928, where the police officers fabricated a\n\npolice report, or in Ciccarelli, 877 N.E.2d at 618, where the\n\nsuperintendent manufactured an excuse in order to fire the teacher,\n\nWong did not actively fabricate an allegation of misconduct to use\n\nas an excuse for her decision not to nominate Heagney.\n\n\n\n\n - 41 -\n\f Nor is the other testimony on which Heagney relies \"so\n\negregious as to warrant the condemnation and enhanced deterrence\n\nthat underlie the imposition of punitive damages.\" Smith v. Bell\n\nAtl., 829 N.E.2d 228, 245 (Mass. App. Ct. 2005). As to Wong's\n\nanswer \"no\" when asked if she had read the anonymous letter, Wong\n\nimmediately qualified her answer by stating that she \"didn't really\n\nread the letter,\" but instead \"perused it and saw that it was\n\nsomething related to Scott Heagney, and . . . forwarded it to Mr.\n\nStephens to be part of his file.\" Similarly, Wong's answer \"no\"\n\nwhen asked if she told Owen that she \"could no longer support Mr.\n\nHeagney because he had not disclosed the early criminal charge\"\n\nwas immediately qualified by a statement \"that is what [Owen] wrote\n\nwithout quotes.\"\n\n Of course, the jury's finding for Heagney on the Chapter\n\n151B claim suggests that it did not credit some of Wong's testimony\n\nconcerning her motivation for withdrawing his nomination. But,\n\n\"the fact that the jury drew an inference against [Wong] does not\n\nequate with positive evidence that [s]he lied or . . . orchestrated\n\na cover up.\" Kiely, 13 N.E.2d at 622. Thus, the most that Heagney\n\nhas offered is an \"assert[ion] that the jury's apparent disbelief\n\nof [Wong's] testimony . . . is also proof that [Wong] attempted to\n\ncover up [her] wrongdoing.\" Id. at 621-22. But, as Kiely shows,\n\nthat alone is not enough to support punitive damages. See id. at\n\n620.\n\n\n - 42 -\n\f We thus do not see how the record reflects conduct so\n\n\"outrageous or egregious\" so as to require punitive damages in\n\norder to \"deter such behavior\" or to express \"public condemnation\n\nand punishment[.]\"7 Haddad, 914 N.E.2d at 75. Because we conclude\n\nthat there was insufficient evidence to support the award of\n\npunitive damages under Haddad, we need not reach whether the award\n\nwas unreasonable or excessive. Accordingly, the award of punitive\n\ndamages is reversed.\n\n IV.\n\n For the foregoing reasons, we reverse the judgment on\n\nthe defamation claim, affirm the judgment on the Chapter 151B\n\nclaim, and reverse the award of punitive damages on the Chapter\n\n151B claim. Each party shall bear its own costs.\n\n\n\n\n 7 Wong was an official \"charged with the public duty to enforce\nthe law equally,\" Dalrymple v. Winthrop, 740 N.E.2d 204, 211 (Mass.\nApp. Ct. 2000), and that fact may give her actions \"a heightened\ndegree of reprehensibility,\" Clifton, 839 N.E.2d at 323; see also\nKiely, 13 N.E.3d at 622 n.6 (noting that this \"factor\" was \"absent\nfrom the case at bar\"). But, Heagney makes no argument -- nor\nhave we found any post-Haddad authority suggesting -- that Wong's\nstatus as a public official alone is sufficient to sustain a jury's\naward of punitive damages for a Chapter 151B violation by the city\nthat employs that official in a case involving facts like these.\nCompare with Clifton, 839 N.E.2d at 316 (upholding award of\npunitive damages against city transit authority where \"both\nsupervisors and coworkers\" engaged in extensive racial\ndiscrimination against a plaintiff \"throughout nine years of his\nemployment\").\n\n\n - 43 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366803/", "author_raw": "BARRON, Circuit Judge"}]} | TORRUELLA | THOMPSON | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589550/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Scott L. HEAGNEY, Plaintiff, Appellee, v. Lisa A. WONG; City of Fitchburg, Defendants, Appellants, Badgequest, Inc. ; Stephan Unsworth, Defendants.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2033\n\n SCOTT L. HEAGNEY,\n\n Plaintiff, Appellee,\n\n v.\n\n LISA A. WONG; CITY OF FITCHBURG,\n\n Defendants, Appellants,\n\n BADGEQUEST, INC.; STEPHAN UNSWORTH,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Timothy S. Hillman, U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Barron,\n Circuit Judges.\n\n\n Leonard H. Kesten, with whom Judy A. Levenson, Deidre Brennan\nRegan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief,\nfor appellants.\n Nicholas B. Carter, with whom Joseph M. Cacace and Todd &\nWeld LLP were on brief, for appellee.\n\fFebruary 11, 2019\n\f BARRON, Circuit Judge. This case concerns a suit that\n\nScott Heagney, a past applicant for the position of the police\n\nchief of Fitchburg, Massachusetts, brought against the City of\n\nFitchburg (\"Fitchburg\") and its mayor after the mayor decided not\n\nto nominate him for the job. The mayor made her decision after\n\nshe discovered late in the hiring process that Heagney had not\n\ndisclosed, among other things, that he was charged with serious\n\ncriminal offenses (of which he was later acquitted at trial) during\n\nthe time period in which he was employed at another local police\n\ndepartment. The mayor was quoted thereafter in local newspapers\n\nexplaining her decision not to nominate Heagney for the position.\n\n Heagney's suit claims that Fitchburg violated his rights\n\nunder Massachusetts General Laws Chapter 151B by basing its\n\ndecision not to hire him for the position on his failure to\n\ndisclose the criminal case against him. Heagney's suit also\n\nclaims, under Massachusetts law, that the mayor defamed him through\n\nstatements that she made to the local newspapers explaining the\n\ndecision.\n\n At trial, the jury found for Heagney on both claims.\n\nFor the defamation claim, the jury awarded Heagney $750,000 in\n\ncompensatory damages and for the Chapter 151B claim, no\n\ncompensatory damages but $750,000 in punitive damages. The\n\nDistrict Court denied Fitchburg's motions for judgment as a matter\n\nof law and for a new trial or remittitur, and entered judgment for\n\n\n - 3 -\n\fHeagney. Fitchburg now appeals. We reverse the judgment on the\n\ndefamation claim, affirm the judgment on the Chapter 151B claim,\n\nand reverse the award of punitive damages for the Chapter 151B\n\nclaim.\n\n I.\n\n Heagney first submitted his application for the position\n\nof Fitchburg Police Chief in October 2013. On the résumé\n\naccompanying his application, Heagney listed positions that he had\n\nheld at the Police Department of Franklin, Massachusetts from 1987\n\nto 2001 and at the United States Bureau of Alcohol Tobacco and\n\nFirearms (\"ATF\"), where he had been employed since 2001.\n\n Heagney did not list on his résumé, however, his prior\n\nemployment as an officer in the Police Department of Falmouth,\n\nMassachusetts where, after being fired by the Franklin Police\n\nDepartment, he had worked from 1990 to 1993. Instead, on his\n\nrésumé, Heagney stated that he had worked as a patrolman at the\n\nFranklin Police Department from 1987 to 1994, without noting the\n\nbreak in his service. Heagney also did not list his prior\n\nemployment at the Police Department of Attleboro, Massachusetts,\n\nwhere he had worked from 1985 to 1987.\n\n As part of the application process, Heagney was also\n\nasked to fill out a standard employment application. The\n\napplication asked candidates to list their employment for the past\n\nfifteen years. Heagney stated in the application only that he had\n\n\n - 4 -\n\fworked in the Franklin Police Department from 1987 to 2001 and at\n\nthe ATF from 2001 to present. He also answered \"no\" to two\n\nquestions: \"Have you ever been disciplined, fired or forced to\n\nresign because of misconduct or unsatisfactory employment?\" and\n\n\"Prior to the hiring of our next police chief, a thorough and\n\ncomprehensive background investigation will be conducted. Are\n\nthere any issues that we should be aware of that would arise during\n\nsuch an investigation?\"\n\n Over the course of several months, Bernard Stephens --\n\nFitchburg's personnel director -- and the rest of the selection\n\ncommittee -- whose members had been chosen by Lisa Wong, the mayor\n\nof Fitchburg -- gradually narrowed the pool of potential candidates\n\nwith the assistance of an \"assessment center\" and through various\n\ninterviews. After interviewing the three remaining candidates,\n\nWong chose Heagney as the finalist for the position of Fitchburg\n\nPolice Chief. She sent an email to the city council on March 10,\n\n2014 announcing her decision to nominate him for the position.\n\n Before Wong would officially nominate any candidate for\n\nFitchburg Police Chief to the city council, however, that candidate\n\nwas required to pass a background check by BadgeQuest, a consulting\n\nfirm that Fitchburg had hired to assist in the selection process.\n\nThus, BadgeQuest, at Fitchburg's request, proceeded to complete\n\nits background investigation of Heagney. And, after an initial\n\ninvestigation, Stephan Unsworth, Fitchburg's primary contact at\n\n\n - 5 -\n\fBadgeQuest, communicated BadgeQuest's tentative conclusion to\n\nStephens that \"there [we]re no issues in [Heagney's] background\n\nthat would have a negative impact on [his] suitability for the\n\nposition of Fitchburg [P]olice [C]hief.\" Unsworth did indicate,\n\nthough, that BadgeQuest was still waiting for Heagney's personnel\n\nfile from the ATF.\n\n The next significant development occurred on March 17,\n\n2014, before Heagney's personnel file arrived from the ATF. On\n\nthat date, Wong's office received an anonymous letter that raised\n\nconcerns about Heagney's pending nomination for Fitchburg Police\n\nChief. The letter stated that Heagney had worked and had been\n\ninvolved in various incidents of misconduct at the Attleboro,\n\nFalmouth, and Franklin Police Departments. The letter also stated\n\nthat Heagney had been charged with various criminal offenses\n\nrelated to pistol whipping an individual (which subsequent\n\ninvestigation revealed to be his ex-girlfriend) but that the\n\ncriminal \"case was dismissed[.]\"\n\n At Wong's request, Stephens immediately asked BadgeQuest\n\nto \"check out\" the allegations in the letter, which BadgeQuest\n\nbegan to do. Before BadgeQuest had conclusively verified any of\n\nthe letter's allegations, however, Stephens sent Unsworth an email\n\non the afternoon of March 18, 2014, in which he called off the\n\nBadgeQuest investigation into Heagney. In his email to Unsworth\n\nexplaining why, Stephens gave as \"[r]easons\": (1) \"[y]our question\n\n\n - 6 -\n\fearly on to him about any problems in the past . . . that we should\n\nknow about. He answered no\"; (2) \"[a]pplication was not filled out\n\nwith all the police jobs that he had early in his career\"; and (3)\n\n\"[h]e has lost Mayor Wong's support.\"\n\n On the afternoon of March 18, 2014, Wong spoke with\n\nHeagney and gave him an end-of-business-day deadline to withdraw\n\nhis name as an applicant for the chief of police position. After\n\nthat deadline passed and Heagney still had not withdrawn his name,\n\nWong sent an email to the city council in which she withdrew her\n\nnomination of Heagney to be the Fitchburg Police Chief. In the\n\nemail, Wong stated that \"[t]he nomination was subject to the\n\nexecution of a contract and a background check, both of which have\n\nbeen suspended.\"\n\n Local newspapers covered Wong's withdrawal of Heagney's\n\nnomination. One of the articles about this news, written by Paula\n\nOwen, appeared in the Worcester Telegram & Gazette and stated:\n\n\"Now, Ms. Wong claims the 46-year-old ATF agent, who runs the\n\nRochester, N.Y., office, was not forthcoming on his résumé about\n\nhis work experience or about a court case on alleged assault and\n\nbattery and other charges when he was 21.\"1\n\n\n 1 That same article also included a statement attributed to\nWong that she sent via text to Owen: \"The city is not interested\nin pursuing a candidate for police chief who was not forthcoming\nwith his résumé.\" Another article, published in the Fitchburg\nSentinel & Enterprise, included a statement attributed to Wong\n\n\n\n - 7 -\n\f Fitchburg eventually received Heagney's personnel files\n\nfrom the ATF and the Falmouth and Attleboro Police Departments.\n\nThose files included the following information related to the\n\n\"court case\" -- and the underlying allegations of criminal conduct\n\nby Heagney -- referenced in the anonymous letter. In 1988, Cheryl\n\nCollins, Heagney's ex-girlfriend, filed complaints with the\n\nFranklin and Wrentham Police Departments against Heagney in which\n\nshe alleged that he had physically abused and threatened her with\n\na pistol. Following the allegations, Heagney was placed on\n\ntemporary leave from his job at the Franklin Police Department\n\nafter an internal investigation. The criminal case against Heagney\n\nin Wrentham District Court for assault and battery of Collins with\n\na dangerous weapon ended in Heagney's acquittal.\n\n The personnel files also revealed other disciplinary\n\nactions that had been taken against Heagney by police departments\n\nat which he had previously worked. Those actions were for various\n\ninstances of misconduct, including fabricating a police report,\n\nacting unprofessionally during a suicide watch, and failing to\n\nappear in court for a trial.\n\n\n\nthat \"[t]he city [wa]s not interested in pursuing a candidate for\npolice chief who withheld key information about their work résumé\nand character.\" The jury rejected Heagney's defamation claims\narising from these statements because the jury found that both\nstatements were true. On appeal, the parties do not contest the\njury's verdicts as to these statements, so we need not address\nthem here.\n\n\n - 8 -\n\f In 2015, Heagney filed suit in state court against Wong,\n\nFitchburg, BadgeQuest, and Unsworth. The defendants removed the\n\ncase to federal court based on diversity jurisdiction. See 28\n\nU.S.C. § 1332(a). Heagney's complaint alleged that all defendants\n\nexcept for Fitchburg had defamed him in violation of Massachusetts\n\nlaw and that Fitchburg had violated Massachusetts General Laws\n\nChapter 151B by not hiring Heagney due to his failure to inform it\n\nof the criminal case against him. As relevant here, Chapter 151B\n\nprovides that it is unlawful for\n\n an employer, himself or through his agent, . . . to\n exclude, limit or otherwise discriminate against any\n person by reason of his or her failure to furnish such\n information through a written application or oral\n inquiry or otherwise regarding . . . an arrest,\n detention, or disposition regarding any violation of law\n in which no conviction resulted.\n\nMass. Gen. Laws ch. 151B, § 4(9).\n\n Prior to trial, Heagney settled with BadgeQuest and\n\nUnsworth. Heagney then proceeded to trial on his claims against\n\nWong and Fitchburg. At the end of the trial on those claims, the\n\ndefendants filed a motion for judgment as a matter of law under\n\nFederal Rule of Civil Procedure 50(a), which the District Court\n\ndenied. The case was submitted to the jury. The jury specifically\n\nfound that Wong had made the statement to the Worcester Telegram\n\n& Gazette that Heagney \"was not forthcoming . . . about a court\n\ncase on alleged assault and battery and other charges when he was\n\n21\" and that this statement was both false and defamatory. On\n\n\n - 9 -\n\fthis defamation claim, the jury awarded Heagney $125,000 \"for\n\ndamages to his reputation, including emotional distress\" and\n\n$625,000 \"for economic losses.\" Separately, the jury found that\n\nthe other statements at issue were not false.\n\n The jury also found Fitchburg liable, in violation of\n\nChapter 151B, for discriminating against Heagney because of his\n\nfailure to disclose the information concerning the criminal case\n\nagainst him. But, with respect to damages, the jury found, based\n\non after-acquired evidence of administrative actions that had been\n\ntaken against Heagney by other police departments, that Fitchburg\n\nwould have refused to hire Heagney on the basis of that evidence\n\nalone and thus independently of the fact that he had not disclosed\n\nthe criminal case. As a result, the jury did not award Heagney\n\nany compensatory damages on the Chapter 151B claim. The jury did\n\naward him, however, $750,000 in punitive damages on that claim.\n\n The defendants renewed their motion for judgment as a\n\nmatter of law under Federal Rule of Civil Procedure 50(b) and\n\nalternatively requested a new trial under Federal Rule of Civil\n\nProcedure 59(a) or remittitur under Federal Rule of Civil Procedure\n\n59(e). The District Court denied all the motions. Wong and\n\nFitchburg now appeal.\n\n II.\n\n Wong's appeal of the denial of both her motion for\n\njudgment as a matter of law and for a new trial on Heagney's\n\n\n - 10 -\n\fdefamation claim focuses on the statement attributed to her that\n\nappeared in the story by Owen that was published in the Worcester\n\nTelegram & Gazette on March 20, 2014. To repeat, the story stated,\n\nin relevant part: \"Now, Ms. Wong claims the 46-year old ATF agent,\n\nwho runs the Rochester, N.Y., office, was not forthcoming on his\n\nrésumé about his work experience or about a court case on alleged\n\nassault and battery and other charges when he was 21.\"\n\n Under Massachusetts law, to prove defamation against a\n\npublic figure (which Heagney concedes that he is), Heagney must\n\nshow that: (1) Wong made a statement concerning him to a third\n\nparty; (2) the statement could damage Heagney's reputation in the\n\ncommunity; (3) Wong made the statement with actual malice; and (4)\n\nthe statement caused economic loss or is actionable without\n\neconomic loss. See Ravnikar v. Bogojavlensky, 782 N.E.2d 508,\n\n510-11 (Mass. 2003).\n\n The jury found that Wong made the entire statement\n\nattributed to her in the story by Owen. The jury found that the\n\nportion of the statement in which Wong stated that Heagney \"was\n\nnot forthcoming on his résumé about his work experience\" was not\n\nfalse. But, the jury found that the portion of the statement in\n\nwhich Wong stated that Heagney \"was not forthcoming . . . about a\n\ncourt case on alleged assault and battery and other charges when\n\nhe was 21\" was both false and defamatory. The jury's finding on\n\n\n\n\n - 11 -\n\fthat portion of the statement is the sole basis for the finding of\n\nliability on Heagney's defamation claim.\n\n We can easily dispose of Wong's threshold contention\n\nthat the evidence was too slight to permit a jury to find that she\n\nin fact made the statement at issue to the Worcester Telegram &\n\nGazette. Owen, the reporter at the Worcester Telegram & Gazette\n\nwho wrote the March 20, 2014 article, testified at trial that Wong\n\nmade the statement to her during a phone call. The jury reasonably\n\ncould have credited Owen's testimony as to that point.\n\n Nevertheless, truth is \"an absolute defense\" to this\n\ndefamation claim.2 Noonan v. Staples, Inc., 556 F.3d 20, 26 (1st\n\nCir. 2009) (citing Mass. Sch. of Law at Andover, Inc. v. Am. Bar\n\n\n 2 A Massachusetts statute permits a plaintiff in a libel\naction to recover for a truthful defamatory statement if the\nplaintiff proves that it was made in writing with actual malice.\nSee Mass. Gen. Laws ch. 231, § 92. However, the First Amendment\nlimits the scope of that statute such that \"a statement on matters\nof public concern must be provable as false before there can be\nliability under state defamation law.\" Shaari v. Harvard Student\nAgencies, Inc., 691 N.E.2d 925, 927 (Mass. 1998) (internal\nquotation marks omitted) (emphasis added); see also Materia v.\nHuff, 475 N.E.2d 1212, 1216 n.6 (Mass. 1985) (\"[A] judge cannot\nconstitutionally apply [the statute] to a public figure or public\nofficial.\"); Ravnikar, 782 N.E.2d at 510 n.3 (noting that \"the\nprovisions of the First Amendment to the United States\nConstitution\" limit \"[t]he scope of the statute\"); White v. Blue\nCross & Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036 (Mass.\n2004). Because the parties agree that Heagney is a public figure,\nsee Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 287 (Mass. 2000)\n(holding that \"police officers . . . are 'public officials' for\npurposes of defamation\"), and that the statement at issue was on\na matter of public concern, we do not need to address whether Wong\nmade that statement with actual malice if we decide that the\nevidence was insufficient to show that the statement was false.\n\n\n - 12 -\n\fAss'n, 142 F.3d 26, 42 (1st Cir. 1998); McAvoy v. Shufrin, 518\n\nN.E.2d 513, 517 (Mass. 1988)); see also Shaari, 691 N.E.2d at 927.\n\nAnd, under the First Amendment, Heagney bears the burden of showing\n\nthat the statement at issue was false. See Philadelphia\n\nNewspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). Moreover,\n\nthe First Amendment compels us to \"afford plenary review\" instead\n\nof the \"usual deferential Rule 50 standard\" to \"'mixed fact/law\n\nmatters which implicate core First Amendment concerns,' such as\n\nthe jury's conclusions regarding falsity.\" Sindi v. El-Moslimany,\n\n896 F.3d 1, 14 (1st Cir. 2018) (quoting AIDS Action Comm. of Mass.,\n\nInc. v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994)).\n\n Essentially, Wong's position is that the record shows\n\nthat Heagney was, in fact, \"not forthcoming\" about the \"court case\"\n\ninvolving the criminal charges that had been lodged against him in\n\nthe ordinary sense of being \"not forthcoming.\" After all, she\n\npoints out, Heagney at no point actually brought the case to the\n\nattention of Wong or the search committee. Thus, Wong contends\n\nthe statement at issue cannot ground a defamation claim because it\n\nwas true rather than false. And, we conclude, applying plenary\n\nreview, that, under the ordinary construction of the phrase \"not\n\nforthcoming,\" Wong is right. See Oxford Living Dictionaries:\n\nEnglish, https://en.oxforddictionaries.com/definition/forthcoming\n\n(defining \"forthcoming\" as \"willing to divulge information\");\n\n\n\n\n - 13 -\n\fMerriam-Webster Dictionary (2005) (defining \"forthcoming\" as\n\n\"characterized by openness, candidness, and forthrightness\").\n\n The evidence shows that Heagney had been put on notice\n\nthat \"a thorough and comprehensive background investigation\n\nw[ould] be conducted\" as part of the selection process. Yet,\n\ndespite multiple opportunities during that process to do so,\n\nHeagney never in fact \"alert[ed] the Defendants that his background\n\ninvestigation would reveal [the assault and battery] allegations,\n\nthe resulting internal affairs investigation, the suspension, and\n\nthe subsequent criminal charges.\" In fact, when asked on the\n\ninitial application form whether he had \"ever been disciplined,\n\nfired, or forced to resign because of misconduct or unsatisfactory\n\nemployment\" and whether he had \"any issues that [the committee]\n\nshould be aware of,\" Heagney answered \"no.\"\n\n Heagney nevertheless argues that the jury could have\n\nfound that the statement at issue was false because it \"conveyed\n\nthat Heagney wrongfully concealed the prior criminal charges\n\nbecause he was obligated to disclose the charges to the City.\"\n\nHeagney contends, in that respect, that the statement was false,\n\nbecause \"[t]he law is clear that Mr. Heagney was legally allowed\n\nto withhold this information about the prior criminal charges he\n\nwas acquitted on[.]\" See Mass. Gen. Laws ch. 151B, § 4(9).\n\n We do not see, however, why Chapter 151B is relevant to\n\nthe question of whether the statement at issue was true or false.\n\n\n - 14 -\n\fThe statement makes no assertion as to whether Heagney was\n\nprotected by Massachusetts law from being asked or required to\n\nfurnish information concerning the prior criminal case or whether\n\nHeagney violated Massachusetts law by not doing so. The portion\n\nof the statement at issue simply describes, accurately, his failure\n\nto be forthcoming as to the existence of that case. Whether or\n\nnot, under Chapter 151B, Heagney's failure to furnish the protected\n\ninformation could lawfully provide the basis for Wong's decision\n\nto withdraw his nomination for the position thus does not bear on\n\nwhether he was in fact forthcoming in regard to that information.\n\nCertainly the protection afforded to him by Chapter 151B did not\n\nin any way bar Heagney from being forthcoming about the criminal\n\ncase against him if he wished to be.\n\n This conclusion comports with our decision in Noonan v.\n\nStaples, Inc., 556 F.3d at 27. There, we declined to construe\n\nMassachusetts defamation law to permit \"even an objectively true\n\nstatement [to] give rise to a libel claim if reasonable readers\n\nmight infer from it other, untrue characteristics of the plaintiff\n\nor conduct by him.\" Id. (noting that \"our survey of the relevant\n\nMassachusetts law ha[d] uncovered no clear support for this\n\ninterpretation\"). And, under the \"much simpler\" \"truth-or-falsity\n\ninquiry\" that we continue to discern in Massachusetts law, we find\n\nhere that \"everything said in [Wong's statement] was true . . . .\"\n\nId. at 28 (citing Murphy v. Boston Herald, Inc., 865 N.E.2d 746,\n\n\n - 15 -\n\f754 (Mass. 2007); Jones v. Taibbi, 512 N.E.2d 260, 266 (Mass.\n\n1987)).\n\n In sum, the fact that the statement attributed to Wong\n\nmay help Heagney in bringing his Chapter 151B claim does nothing\n\nto make that statement false rather than true. And yet that\n\nstatement must be false in order to sustain Heagney's defamation\n\nclaim. Accordingly, because we conclude that the statement at\n\nissue was not false, we need not address whether the evidence\n\nsufficed to permit a jury to find any of the other elements of the\n\ntort of defamation nor Wong's arguments relating to damages. We\n\nthus reverse the judgment on the defamation claim.\n\n III.\n\n We turn, then, to Fitchburg's challenges to the portion\n\nof the judgment that concerns Heagney's claim against Fitchburg\n\nfor allegedly violating Chapter 151B. As we have noted, the jury\n\nfound for Heagney on that claim. And, although the jury awarded\n\nhim no compensatory damages, it did find that he was entitled to\n\na sizable punitive damages award. Fitchburg raises several\n\nobjections to the District Court's denial of its motion for\n\njudgment as a matter of law and for a new trial or remittitur on\n\nthe Chapter 151B claim as well as to the award of punitive damages.\n\nWe consider each of these arguments in turn.\n\n\n\n\n - 16 -\n\f A.\n\n Fitchburg first challenges the sufficiency of the\n\nevidence with respect to the Chapter 151B claim on the following\n\ngrounds. Fitchburg contends that the evidence sufficed to show\n\nonly that it obtained the information about the prior criminal\n\ncase against Heagney from a third party unprompted, that it did so\n\nwithout either having prompted or directly asked Heagney to\n\ndisclose it, and that it then relied solely on the content of that\n\ninformation to make its employment decision and not on the fact\n\nthat the information had not been disclosed by Heagney. Fitchburg\n\nthen goes on to contend, citing Bynes v. School Committee of\n\nBoston, 581 N.E.2d 1019 (Mass. 1991), that, in such circumstances,\n\nChapter 151B does not apply. See id. at 1021-22.\n\n But, Fitchburg makes no argument, that, if the evidence\n\nsufficed to show that its decision not to hire Heagney was based\n\non Heagney's failure to disclose information regarding the\n\ncriminal case, rather than simply on the content of the information\n\nitself, Chapter 151B does not apply because Fitchburg never asked\n\nhim to disclose the information and only obtained it, unprompted,\n\nfrom a third party. Accordingly, if the evidence does suffice to\n\nshow that Fitchburg declined to move forward with Heagney's\n\ncandidacy because of the nondisclosure, rather than simply because\n\nof the content of the information that he did not disclose, we\n\nmust reject this sufficiency challenge. And, reviewing \"de novo,\n\n\n - 17 -\n\f[while] viewing the evidence in the light most favorable to the\n\nverdict,\" Kennedy v. Town of Billerica, 617 F.3d 520, 527 (1st\n\nCir. 2010) (citing Jennings v. Jones, 587 F.3d 430, 438 (1st Cir.\n\n2009); Visible Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st\n\nCir. 2008)), we disagree with Fitchburg's characterization of what\n\nthe record sufficed to show.\n\n As we have already explained, a jury could reasonably\n\nfind that Wong made the statement -- confirmed by Owen's in-court\n\ntestimony and published in the Worcester Telegram & Gazette --\n\nthat she withdrew Heagney's nomination because he \"was not\n\nforthcoming about . . . a court case on alleged assault and battery\n\nand other charges when he was 21.\" That statement quite clearly\n\nrepresents that Wong made that decision not because of the criminal\n\ncase against Heagney, but because Heagney was \"not forthcoming\"\n\nabout that case. Accordingly, we reject this aspect of Fitchburg's\n\nsufficiency challenge.\n\n B.\n\n Fitchburg next challenges the District Court's charge to\n\nthe jury, over its objection, that this was a so-called \"mixed\n\nmotive\" case. In a Chapter 151B case of this type, the plaintiff\n\nneed not prove that the prohibited ground for the employment action\n\n-- here, Heagney's failure to disclose the criminal case -- was\n\nthe sole basis for that action. Rather, the plaintiff need only\n\nprovide \"strong\" or \"direct\" evidence that it was one reason.\n\n\n - 18 -\n\fHaddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59, 76 (Mass. 2009)\n\n(internal quotation marks omitted). If the plaintiff makes that\n\nshowing, the burden then shifts to the defendant to prove that it\n\n\"would have taken the same action absent the unlawful motive\" on\n\nthe basis of its other \"legitimate reason[s], standing alone.\"\n\nId. at 77 (internal quotation marks omitted).\n\n Fitchburg contends that the District Court erred in\n\nissuing the mixed-motive instruction here because Heagney had not\n\nput forth the requisite \"strong\" or \"direct\" evidence that\n\nFitchburg had relied on an illegitimate reason in refusing to hire\n\nhim. See id. Relatedly, Fitchburg contends that, insofar as the\n\nmixed-motive instruction was warranted, Fitchburg was entitled to\n\njudgment as a matter of law because no reasonable jury could find\n\nthat Fitchburg had failed to meet its burden to prove that it would\n\nhave refused to hire Heagney even apart from his nondisclosure of\n\nthe criminal case.\n\n In reviewing whether the evidence suffices to prove\n\ndiscrimination under Chapter 151B on a mixed-motive theory, we\n\nmust construe the evidence in the light most favorable to the\n\nverdict. See id. at 64 n.5. And, we review de novo whether that\n\nevidence, so construed, suffices. See Kennedy, 617 F.3d at 527.\n\n Before turning directly to our consideration of\n\nFitchburg's challenge to the evidentiary basis for both the mixed-\n\nmotive instruction and the sufficiency of the evidence of liability\n\n\n - 19 -\n\funder that instruction, however, we need to make one point clear\n\nat the outset about the focus of our inquiry. That point concerns\n\nthe timing of the employment decision by Fitchburg that Heagney\n\ncontends violated Chapter 151B.\n\n Fitchburg contends that the employment decision at issue\n\nconcerns whether Fitchburg would have ultimately hired Heagney for\n\nthe position. But, Chapter 151B expressly applies to the decisions\n\nof \"an employer, himself or through his agent, . . . to exclude,\n\nlimit, or otherwise discriminate\" against an applicant. Mass.\n\nGen. Laws ch. 151B, § 4(9) (emphasis added). And, Fitchburg\n\nprovides no authority for the doubtful proposition that Wong was\n\nnot acting in her official capacity as mayor of Fitchburg when she\n\ndecided not to nominate Heagney or that her official role in the\n\nemployment decision would have no bearing on whether Fitchburg\n\nviolated Chapter 151B.\n\n To the contrary, the record supportably shows that\n\nWong's nomination of Heagney was a necessary step before the city\n\ncouncil would even consider a candidate. Moreover, Wong did in\n\nfact withdraw Heagney's nomination to the city council, which ended\n\nHeagney's candidacy for the position.\n\n Thus, we conclude that, to determine whether the\n\nevidence sufficed to warrant the mixed-motive instruction -- and,\n\nrelatedly, whether the evidence sufficed to support a finding of\n\nliability under that instruction -- we must consider the portions\n\n\n - 20 -\n\fof the record that concern Wong's motivation for deciding to\n\nwithdraw Heagney's nomination. Cf. Price Waterhouse v. Hopkins,\n\n490 U.S. 228, 252 (1989) (\"An employer may not . . . prevail in a\n\nmixed-motives case by offering a legitimate and sufficient reason\n\nfor its decision if that reason did not motivate it at the time of\n\nthe decision.\").\n\n The timing of Wong's decision to withdraw Heagney's\n\nnomination, however, is itself a source of dispute between the\n\nparties, and so we need to address that point up front as well.\n\nThe parties agree that Wong formally withdrew that nomination in\n\nan email to the city council around 5 p.m. on March 18, 2014.\n\nFitchburg asserts that Wong had not yet definitely made up her\n\nmind to withdraw her support from Heagney when she made that call.\n\nBut, Heagney argues, Wong had already made up her mind not to\n\nnominate Heagney when she called him around 3:45 p.m. that\n\nafternoon to ask him to withdraw his name from consideration.\n\n We conclude that a jury could reasonably infer from the\n\nevidence that Wong had already made up her mind not to nominate\n\nHeagney at the point that she called him to ask him to withdraw\n\nhis name. We thus focus on what the record shows about what Wong\n\nknew up until that time in assessing both whether the mixed-motive\n\ninstruction was warranted and whether a reasonable jury could have\n\nfound that Wong would not have taken the same action on the basis\n\nof a motive other than the one prohibited by Chapter 151B.\n\n\n - 21 -\n\f 1.\n\n We first address Fitchburg's contention that it was\n\nentitled to judgment as a matter of law because Heagney failed to\n\nmeet his initial burden to provide \"either 'direct or strong'\n\nevidence\" that his failure to disclose the prior criminal case did\n\nmotivate Wong's decision not to nominate him. Haddad, 914 N.E.2d\n\nat 77 (quoting Wynn & Wynn, P.C. v. Massachusetts Comm'n Against\n\nDiscrimination, 729 N.E.2d 1068, 1078 (Mass. 2000), overruled on\n\nother grounds by Stonehill Coll. v. Massachusetts Comm'n Against\n\nDiscrimination, 808 N.E.2d 205 (Mass. 2004)). \"Direct evidence in\n\nthis context is evidence that if believed, results in an\n\ninescapable, or at least highly probable, inference that a\n\nforbidden bias was present in the workplace.\" Wynn & Wynn, 729\n\nN.E.2d at 1078 (internal quotation marks omitted).\n\n \"[I]n determining whether a 'mixed-motive' claim\n\nsurvives a motion for judgment as a matter of law, a [district]\n\ncourt must determine whether the plaintiff has put forth sufficient\n\nevidence for a jury to conclude that it is more likely than not\n\nthat the [illegitimate ground] was 'a motivating factor' for the\n\ndefendant's employment decision.\" Resare v. Raytheon Co., 981\n\nF.2d 32, 40 (1st Cir. 1992). Reviewing the District Court's\n\ndetermination de novo and reading \"the evidence, taking all\n\ninferences in favor of [the non-moving party],\" Burton v. Town of\n\n\n\n\n - 22 -\n\fLittleton, 426 F.3d 9, 14 (1st Cir. 2005), we conclude that Heagney\n\nmet his initial burden.\n\n The most \"direct\" evidence is the statement attributed\n\nto Wong in the Worcester Telegram & Gazette that Owen testified\n\nthat Wong made to her. That statement asserts that Wong withdrew\n\nHeagney's nomination because Heagney \"was not forthcoming about .\n\n. . a court case on alleged assault and battery and other charges\n\nwhen he was 21.\"\n\n That statement, if attributed to Wong and credited, was\n\ncertainly not a \"[s]tray remark[] in the workplace,\" \"[a]\n\nstatement[] by [someone] without the power to make employment\n\ndecisions,\" or a \"statement[] made by [a] decision maker[]\n\nunrelated to the decisional process itself.\" Wynn & Wynn, 729\n\nN.E.2d at 1078. The record, moreover, also contains \"strong\"\n\ncircumstantial evidence that Wong was motivated by Heagney's\n\nfailure to disclose the criminal case. The jury heard testimony\n\nthat Wong was prepared to send Heagney's nomination to the city\n\ncouncil up until the moment that she received the anonymous letter\n\non March 17, 2014 informing her, among other things, that Heagney\n\nhad been charged with pistol whipping an individual. By her own\n\nadmission, however, Wong decided to withdraw her support for\n\nHeagney before she \"knew whether the allegations about the criminal\n\ncharges mentioned in the letter were true.\"\n\n\n\n\n - 23 -\n\f \"[A] reasonable jury could\" thus infer that it was\n\nHeagney's failure to disclose the criminal case that motivated\n\nWong's decision to withdraw his nomination. Burton, 426 F.3d at\n\n14. Accordingly, we see no reason to reverse the District Court's\n\ndetermination that Heagney met his burden to \"first . . . present\n\na convincing case that there [wa]s an illegitimate motive present.\"\n\nHaddad, 914 N.E.2d at 78.\n\n 2.\n\n We, turn, then to the question whether Fitchburg carried\n\nits burden to show that, \"at the time of its decision to exclude\n\n. . . Heagney as an applicant for Police Chief, [it] had a lawful,\n\nnondiscriminatory reason to do so, and that this lawful reason,\n\nstanding alone, would have caused it to make the same decision.\"\n\nAs to that question, \"once the plaintiff has met her initial burden\n\nof persuasion on the presence of an illegitimate motive, the\n\ndecision whether the employer has met its burden of proving that\n\nanother legitimate, nondiscriminatory reason actually led it to\n\nmake the decision, is normally for the jury or other finder of\n\nfact to decide.\" Wynn & Wynn, 729 N.E.2d at 1081. In fact, we\n\nmay overturn the jury's verdict only \"when the evidence points so\n\nstrongly and overwhelmingly in favor of the moving party that no\n\nreasonable jury could have returned a verdict adverse to that\n\nparty.\" Monteagudo v. Asociación de Empleados del Estado Libre\n\nAsociado de P.R., 554 F.3d 164, 170 (1st Cir. 2009). And, in\n\n\n - 24 -\n\freviewing the sufficiency of the evidence on that score, \"we may\n\nnot take into consideration the credibility of witnesses, resolve\n\nconflicts in testimony, or in any other manner weigh the evidence.\"\n\nÁlvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152\n\nF.3d 17, 23 (1st Cir. 1998).\n\n Fitchburg points to two non-discriminatory reasons that,\n\nit contends, the record indisputably shows would have been the\n\nbasis -- even setting aside Heagney's failure to disclose the prior\n\ncriminal case -- for its decision not to go forward with Heagney's\n\ncandidacy. But, we are not persuaded that a reasonable jury would\n\nhave been required to find that Wong would have withdrawn Heagney's\n\nnomination based on these reasons alone.\n\n First, Fitchburg points to Heagney's omissions regarding\n\nhis prior employment history. Fitchburg did provide some evidence\n\nthat Heagney's omissions in this regard in fact motivated Wong's\n\ndecision not to nominate him. For example, the record supportably\n\nshows that, by the time that she made up her mind not to nominate\n\nHeagney, Wong had learned the following. The record supportably\n\nshows that Wong had learned that Heagney had not disclosed on his\n\nrésumé or his application materials that he had worked at the\n\nFalmouth Police Department from 1990 to 1993, despite representing\n\non those materials that he had worked as a patrolman in the\n\nFranklin Police Department from 1987 to 1994. And, the record\n\nsupportably shows that Wong had learned that Heagney had worked at\n\n\n - 25 -\n\fthe Attleboro Police Department from 1985 to 1987, even though\n\nthat information had not been provided on Heagney's résumé or his\n\napplication materials. Wong also testified that she decided to\n\nwithdraw her support on the basis of those omissions because she\n\nhad concluded that Heagney would not be successful before the city\n\ncouncil given that \"the only information [she] could give the\n\ncouncil was that what [she] had given them, his résumé, was a lie.\"\n\n But, Heagney testified that, although he had not\n\nincluded his prior work at the Attleboro and Falmouth Police\n\nDepartments on his résumé or application materials, he had told\n\nWong and other search committee members during a phone interview\n\nconducted on March 3 and during an in-person interview conducted\n\non March 8 about his experience working at those departments. The\n\nrecord also supportably shows that Wong was ready to nominate\n\nHeagney after the latter interview.\n\n Thus, a jury could reasonably find on this record that\n\nwhat changed between March 8 and March 18 was Wong's receipt of\n\nthe anonymous letter. A jury could reasonably have credited\n\nHeagney's testimony that, by the time that Wong's office had\n\nreceived the letter on March 17, he had already informed Wong of\n\nhis previous employment at the Attleboro and Falmouth Police\n\nDepartments. If a jury credited that testimony, then it could\n\nreasonably infer that Wong was already aware of that previous\n\nemployment and its omission from Heagney's résumé and application\n\n\n - 26 -\n\fmaterials when she chose him as the finalist. Accordingly, a jury\n\ncould reasonably find, on this record, that Wong would not have\n\nwithdrawn Heagney's nomination when she did based only on his\n\nfailure to include this employment on his application materials.\n\nFor this reason, the record does not support Fitchburg's contention\n\nthat no reasonable jury could find that Wong's motives were mixed.\n\n Second, Fitchburg argues that the record indisputably\n\nshows that Wong would have decided not to nominate Heagney solely\n\nbecause Heagney was \"combative, insubordinate, and rude\" during\n\nher call with him where she asked him to withdraw. But, as we\n\nhave explained, we must conclude, after reading the evidence in\n\nthe light most favorable to the verdict, that a reasonable jury\n\ncould have found that Wong had already made up her mind not to\n\nnominate Heagney before she got on the phone with him.\n\nAccordingly, this line of argument also lacks merit.\n\n C.\n\n Fitchburg next challenges the District Court's \"after-\n\nacquired evidence\" instruction to the jury, which stated, in\n\nrelevant part:\n\n [E]vidence that . . . sometime after the city excluded\n Mr. Heagney as an applicant, the city acquired evidence\n that Mr. Heagney was subject to administrative actions\n that may or may not have constituted discipline while\n serving as a police officer . . . is so-called after-\n acquired evidence, and its purpose is limited. . . .\n [I]t is irrelevant to the question of whether defendants\n are liable for violating General Law Chapter 151B.\n Rather, the possible relevance would be to limit or\n\n\n - 27 -\n\f exclude damages that you might find that Mr. Heagney\n suffered as a result of any violation.\n\nBased on this instruction, the jury found that \"the administrative\n\naction taken against Scott L. Heagney was of such severity that,\n\nhad . . . Fitchburg known of this administrative action in March\n\n2014, it would have in fact refused to hire Scott L. Heagney on\n\nthose grounds alone.\" The jury therefore awarded Heagney no\n\ncompensatory damages on his Chapter 151B claim.\n\n Fitchburg contends that the District Court's\n\n\"characterization of [the] files from other departments and the\n\nATF as 'After Acquired Evidence'\" and the resulting exclusion of\n\nevidence relating to those files were so \"highly prejudicial to\n\nthe City\" that it is entitled to a new trial.3 We review the\n\nDistrict Court's \"denial of a motion for a new trial for abuse of\n\ndiscretion.\" Teixeira v. Town of Coventry by & through Przybyla,\n\n882 F.3d 13, 16 (1st Cir. 2018) (citing Ira Green, Inc. v. Military\n\nSales & Serv. Co., 775 F.3d 12, 18 (1st Cir. 2014)). \"An abuse of\n\ndiscretion will be found whenever a reviewed ruling is based on an\n\nerror of law.\" Ira Green, 775 F.3d at 18. Because Fitchburg\n\n\n 3 Fitchburg appears to have argued below that the jury's\nfinding that Fitchburg would not have hired Heagney had it known\nof the administrative actions against him -- which it contends the\njury should have been allowed to consider in determining liability\n-- means that the \"Court should enter a judgement for the City on\nthe [Chapter] 151B claim.\" But, Fitchburg seems to have abandoned\nthat argument on appeal, arguing only that the alleged error in\nissuing the \"After-Acquired Evidence\" instruction means only that\n\"[t]he judgment against the City on this claim must be vacated.\"\n\n\n - 28 -\n\fraises a \"question[] as to whether [the] jury instruction[]\n\ncapture[s] the essence of the applicable law,\" we \"afford de novo\n\nreview.\" Teixeira, 882 F.3d at 16 (quoting DeCaro v. Hasbro, Inc.,\n\n580 F.3d 55, 61 (1st Cir. 2009)).\n\n We note that Massachusetts law has not yet expressly\n\n\"adopted, or declined to adopt, th[e] [after-acquired evidence]\n\ndoctrine.\" EventMonitor, Inc. v. Leness, 44 N.E.3d 848, 851 (Mass.\n\n2016) (citing Flesner v. Technical Comm'ns Corp., 575 N.E.2d 1107,\n\n1113-14 (Mass. 1991); Prozinski v. Ne. Real Estate Servs., LLC,\n\n797 N.E.2d 415, 425 (Mass. App. Ct. 2003)). But, we need not\n\ndecide whether Massachusetts law has \"implicitly adopted\" the\n\ndoctrine. Prozinski, 797 N.E.2d at 425. Fitchburg challenges the\n\ninstruction only on the ground that it erroneously stated that the\n\njury could consider the after-acquired evidence solely for the\n\nlimited purpose of assessing damages and not also for the purpose\n\nof assessing liability.\n\n Specifically, Fitchburg concedes that there is much\n\nprecedent in \"wrongful discharge\" cases limiting the consideration\n\nof after-acquired evidence only to the assessment of damages and\n\nnot liability. See, e.g., Nieves-Villanueva v. Soto-Rivera, 133\n\nF.3d 92, 101 (1st Cir. 1997) (\"[A]fter-acquired evidence is\n\nnormally admissible only as to remedy, and not on liability.\");\n\nKapche v. Holder, 677 F.3d 454, 464 (D.C. Cir. 2012) (\"[E]vidence\n\nof the plaintiff's wrongdoing acquired subsequent to an employer's\n\n\n - 29 -\n\fdiscriminatory hiring decision does not negate liability.\");\n\nSerrano v. Cintas Corp., 699 F.3d 884, 903 (6th Cir. 2012)\n\n(\"[A]fter-the-fact evidence of [employee wrongdoing] should be\n\nconsidered only in determining the amount of damages due to the\n\nindividual and not in the initial liability stage\"). But,\n\nFitchburg contends, this limitation on the jury's consideration of\n\nafter-acquired evidence has no application to \"failure to hire\"\n\ncases like this one.\n\n Fitchburg, however, has not pointed to a single\n\nprecedent -- from any court, let alone one from Massachusetts --\n\nwhich has permitted an employer to rely on after-acquired evidence\n\nto defeat the plaintiff's showing of liability for discrimination,\n\nwhether the discrimination motivates a \"failure to hire\" or a\n\n\"wrongful discharge.\" To the contrary, precedent seems to bar an\n\nemployer from doing so. See, e.g., Price Waterhouse, 490 U.S. at\n\n252 (\"An employer may not . . . prevail in a mixed-motives case by\n\noffering a legitimate and sufficient reason for its decision if\n\nthat reason did not motivate it at the time of the decision.\"\n\n(emphasis added)); McKennon v. Nashville Banner Pub. Co., 513 U.S.\n\n352, 360 (1995) (\"The employer could not have been motivated by\n\nknowledge it did not have [at the time of the decision] and it\n\ncannot now claim that the employee was fired for the\n\nnondiscriminatory reason.\"). Therefore, we conclude that the\n\nDistrict Court did not err in rejecting Fitchburg's contention\n\n\n - 30 -\n\fthat its instruction to the jury not to consider the after-acquired\n\nevidence in determining liability under Chapter 151B requires a\n\nnew trial.\n\n D.\n\n We come, then, to Fitchburg's arguments that the jury's\n\naward of punitive damages cannot be sustained. First, Fitchburg\n\ncontends that the evidence was insufficient to support any punitive\n\ndamages award. In the alternative, Fitchburg contends that the\n\njury's award of punitive damages was unreasonable.\n\n Chapter 151B authorizes the award of punitive damages,\n\nsee Mass. Gen. Laws 151B, § 9; Int'l Fid. Ins. Co. v. Wilson, 443\n\nN.E.2d 1308, 1317 n.20 (Mass. 1983) (\"Under Massachusetts law,\n\npunitive damages may be awarded only by statute.\"), based on\n\n\"common law and constitutional principles,\" Dartt v. Browning-\n\nFerris Indus., Inc., 691 N.E.2d 526, 536 (Mass. 1998). And, under\n\nMassachusetts law, punitive damages are only warranted for\n\n\"intentional and outrageous conduct.\" Haddad, 914 N.E.2d at 63\n\n(emphasis added).\n\n The Supreme Judicial Court (\"SJC\") has explained,\n\nmoreover, that \"[d]iscrimination [under Chapter 151B] necessarily\n\ninvolves an intentional act.\" Id. at 75. Therefore, \"[t]o sustain\n\nan award of punitive damages under [Chapter 151B], a finding of\n\nintentional discrimination alone is not sufficient.\" Id. Instead,\n\nthe plaintiff must make an additional showing that \"the defendant's\n\n\n - 31 -\n\fconduct is [so] outrageous or egregious. . . . that it justifies\n\npunishment and not merely compensation.\" Id. In other words,\n\n\"the fact finder should determine that the award is needed to deter\n\nsuch behavior toward the class of which plaintiff is a member, or\n\nthat the defendant's behavior is so egregious that it warrants\n\npublic condemnation and punishment.\" Id.\n\n Our review of whether the evidence suffices to permit an\n\naward of punitive damages is de novo. See Intercity Maint. Co. v.\n\nLocal 254, Serv. Employees Int'l Union AFL-CIO, 241 F.3d 82, 86\n\n(1st Cir. 2001). And, in performing that review, we must be\n\nmindful that \"[a]n award of punitive damages . . . should be\n\nsustained if it could 'reasonably have [been] arrived at . . .\n\nfrom any . . . evidence . . . presented.'\" Haddad, 914 N.E.2d at\n\n72 (quoting Dartt, 691 N.E.2d at 536) (alteration in original).\n\n 1.\n\n In challenging Fitchburg's contention that there was\n\ninsufficient evidence to support the punitive damages award,\n\nHeagney first contends that the record supportably showed that\n\nWong, a public official, knowingly violated Chapter 151B. Heagney\n\nfurther contends that this evidence of Wong's knowledge alone\n\npermitted a reasonable jury to find that her conduct was\n\n\"outrageous or egregious\" enough to warrant punitive damages. See\n\nHaddad, 914 N.E.2d at 75. Fitchburg counters that, under Haddad,\n\n\"[a]n award of punitive damages requires a heightened finding\n\n\n - 32 -\n\fbeyond mere liability and also beyond a knowing violation of the\n\nstatute.\" Id. (emphasis added). But, we need not decide this\n\ndispute over whether, under Haddad, such a showing of a public\n\nofficial's knowledge that her conduct violated Chapter 151B can\n\nalone suffice to sustain an award of punitive damages. And that\n\nis because we conclude that Heagney did not make the requisite\n\nshowing of knowledge here in any event.4\n\n To show that the evidence does suffice to support a\n\nfinding that Wong knew that her actions violated Chapter 151B,\n\nsuch that punitive damages may be awarded against Fitchburg under\n\nHaddad, Heagney points to testimony from Unsworth and Stephens.\n\nThey testified that they were aware that Fitchburg could not\n\n\n\n 4 Haddad does note that prior Massachusetts \"cases ha[d] held\nthat . . . a defendant know[ing] that it has acted unlawfully by\ninterfering with the legally protected rights of the plaintiff .\n. . could be sufficient to support an award of punitive damages.\"\nId. at 73 (citing Clifton v. Massachusetts Bay Transp. Auth., 839\nN.E.2d 314, 323-24 (Mass. 2005); Goodrow v. Lane Bryant, Inc., 732\nN.E.2d 289, 299 (Mass. 2000); Dartt, 691 N.E.2d at 536-37)\n(emphasis added). Although acknowledging that \"the defendant['s]\nact[ing] with the knowledge that it was interfering with the\nplaintiff's right to be free of unlawful discrimination . . . has\nbeen . . . one circumstance warranting an award of punitive\ndamages,\" Haddad stated that \"an award of punitive damages has\n[also] been allowed\" where \"the defendant's act was otherwise\noutrageous, egregious, evil in motive, or undertaken with reckless\nindifference to the rights of others.\" Id. at 73 (emphasis added).\nHaddad then announced a \"new standard describing the circumstances\nin which punitive damages may be awarded.\" Id. at 75 (emphasis\nadded). That new standard, however, does not appear to address a\ndefendant's deliberate or knowing violation of Chapter 151B, and\nwe have found no post-Haddad case sustaining an award of punitive\ndamages on such a basis alone.\n\n\n - 33 -\n\flawfully ask candidates about a criminal case not resulting in a\n\nconviction and that it could not lawfully exclude a candidate\n\nbecause of the candidate's failure to furnish that information.\n\nHeagney also points to a handbook provided by a law firm to\n\nFitchburg on \"[b]asic considerations in hiring process,\" which\n\ninstructed that \"[e]mployers must be careful how they inquire about\n\nan applicant's criminal history\" and that employers \"may not\n\ninquire about arrests not resulting in conviction.\"\n\n But, none of those materials purport to address a\n\nsituation in which, as was the case here, an employer does not ask\n\nan applicant directly about a prior criminal case but learns of\n\nit, independently and without prompting the applicant, from a third\n\nparty. Nor is this case one in which the evidence is such that a\n\nreasonable jury \"could infer\" from the employer's general\n\npractices -- unlike, for example, from an employer's general\n\npolicies prohibiting racial or gender discrimination -- that the\n\ndefendant \"was aware that [the] discrimination was not legally\n\npermitted.\" Haddad, 914 N.E.2d at 73.\n\n There is also \"scant case law\" in Massachusetts\n\ninterpreting the Chapter 151B provision at issue, let alone any\n\ncase law applying that statute to facts remotely like those we\n\nhave here. In fact, there is some case law that construes the\n\nChapter 151B provision quite narrowly. See, e.g., Bynes, 581\n\nN.E.2d at 1021 (noting that \"the [Massachusetts] Legislature's\n\n\n - 34 -\n\fintent\" in enacting Chapter 151B, § 4(9) \"was merely to protect\n\nemployees from such requests from their employers and not to\n\nproscribe employers from seeking such information elsewhere\");\n\nRyan v. Chief Admin. Justice of Trial Court, 779 N.E.2d 1005\n\n(Table), 2002 WL 31770115 at *3 (Mass. App. Ct. 2002) (unpublished)\n\n(holding that an employer did not violate Chapter 151B § 4(9) where\n\nthe employer \"did not request the information from the plaintiff\");\n\nMcGowan v. Stoneham Police Dep't, 6 M.D.L.R. 1639, 1648 (1984)\n\n(construing the protection afforded by § 4(9) to be \"quite narrow\n\nin scope\" and \"directed primarily at the preemployment inquiry,\n\nparticularly the application form\" (internal quotation marks\n\nomitted)).\n\n We have here, then, a high degree of \"uncertainty of the\n\nstate of the law in Massachusetts\" regarding the conduct at issue.\n\nGoodrow, 732 N.E.2d at 299. We also have a paucity of evidence\n\ndemonstrating knowledge by either Wong or Fitchburg that this\n\nparticular conduct was unlawful under Chapter 151B. We thus\n\nconclude that no reasonable jury could find that Wong\n\n\"intentionally or willfully violated Massachusetts law,\" id., such\n\nthat, under Haddad, for that reason alone the conduct at issue was\n\n\"outrageous or egregious\" enough to warrant punitive damages,\n\nHaddad, 914 N.E.2d at 75.\n\n\n\n\n - 35 -\n\f 2.\n\n Heagney separately responds to Fitchburg's contention\n\nthat the record does not reflect the \"additional level of\n\negregiousness necessary to support an award of punitive damages,\"\n\nHaddad, 914 N.E.2d at 73, by pointing to the portion of the record\n\nthat purportedly shows that Wong concealed her discriminatory\n\nconduct. Specifically, Heagney contends, the record shows that\n\nWong lied at trial by denying that she had read the anonymous\n\nletter, that she had withdrawn Heagney's nomination because of his\n\nfailure to disclose the criminal case, and that she had told Owen\n\nthe same.\n\n Under Haddad's \"definition of outrageous conduct\n\nappropriate specifically for discrimination claims . . . under\n\n[Chapter] 151B,\" id. at 75 (emphasis added), a jury is to consider:\n\n 1. whether there was a conscious or purposeful effort to\n demean or diminish the class of which the plaintiff\n is a part (or the plaintiff because he or she is a\n member of the class);\n 2. whether the defendant was aware that the\n discriminatory conduct would likely cause serious\n harm, or recklessly disregarded the likelihood that\n serious harm would arise;\n 3. the actual harm to the plaintiff;\n 4. the defendant's conduct after learning that the\n initial conduct would likely cause harm;\n 5. the duration of the wrongful conduct and any\n concealment of that conduct by the defendant.\n\nId. We do not see, though, how the record suffices to support a\n\nfinding that the first four of these factors had been satisfied.\n\nNor do we see what basis there is in Massachusetts law for finding\n\n\n - 36 -\n\fthat the evidence pertaining to the last of these factors --\n\nconcerning concealment -- could alone suffice to support an award\n\nof punitive damages in this case. See generally Kiely v. Teradyne,\n\nInc., 13 N.E.3d 615, 620 (Mass. App. Ct. 2014) (\"reject[ing]\n\n[plaintiff's] argument that a showing on a single Haddad factor is\n\nsufficient to support a punitive damages award\").\n\n The jury found that Heagney suffered no actual harm from\n\nthe Chapter 151B violation in that it awarded no compensatory\n\ndamages to Heagney. See id. at 621; cf. Labonte v. Hutchins &\n\nWheeler, 678 N.E.2d 853, 862 (Mass. 1997) (\"scrutiniz[ing] the\n\nrelationship between actual damages and the award of punitive\n\ndamages\"). And, although we recognize that Massachusetts law\n\nimposes no requirement \"that punitive damages may only be awarded\n\nif there is an award of compensatory damages,\" Bain v. City of\n\nSpringfield, 678 N.E.2d 155, 161 (Mass. 1997), the jury's finding\n\nof no actual harm to Heagney counsels, at least to some extent,\n\nagainst the imposition of punitive damages under Haddad, see\n\nHaddad, 914 N.E.2d at 75; Kiely, 13 N.E.3d at 621.\n\n That is especially so here. There was no basis for a\n\nreasonable jury to find that the defendant \"was aware that the\n\ndiscriminatory conduct would likely cause serious harm, or\n\nrecklessly disregarded the likelihood that serious harm would\n\narise,\" Haddad, 914 N.E.2d at 75, as there has been in other cases\n\nin which the second Haddad factor has been found to have been met.\n\n\n - 37 -\n\fSee, e.g., Gyulakian v. Lexus of Watertown, Inc., 56 N.E.3d 785,\n\n799 (Mass. 2016) (finding the second Haddad factor met where the\n\ndefendant-employer was aware that the plaintiff had made multiple\n\nsexual harassment complaints regarding an employee and neglected\n\nto initiate an investigation despite the requirement in its sexual\n\nharassment policy that it do so); Kiely, 13 N.E.3d at 621 (finding\n\nthe second Haddad factor met where the employer did not rehire the\n\nplaintiff despite being aware that the plaintiff had repeatedly\n\ninquired about open positions at least three times and the\n\nplaintiff had spent her entire career at the employer and was\n\ngrandfathered into generous benefits); Dimanche v. Massachusetts\n\nBay Transportation Auth., 893 F.3d 1, 10 (1st Cir. 2018) (noting\n\nthe employer's failure to act despite \"numerous instances of notice\n\nto [defendant] of racially-based and racially-demeaning comments\n\nmade to [the plaintiff]\").5\n\n Nor could a jury have reasonably concluded that the\n\ndefendants engaged in a \"conscious or purposeful effort to demean\n\nor diminish the class of which the plaintiff is a part (or the\n\nplaintiff because he or she is a member of the class).\"6 Haddad,\n\n\n 5 There was thus necessarily also no basis for a reasonable\njury to find that \"the defendant's conduct after learning that the\ninitial conduct would likely cause harm\" counseled in favor of\npunitive damages. Haddad, 914 N.E.2d at 75.\n 6 We note that the District Court's instruction described the\nfirst Haddad factor only as \"[w]hether the city's conduct was\nconscious or purposeful\" instead of the full formulation. Heagney\n\n\n\n - 38 -\n\f914 N.E.2d at 75 (emphasis added). As the defendant points out,\n\n\"this case involved a unique set of circumstances[.]\" The mayor\n\nlearned that the candidate that she had chosen to nominate to be\n\npolice chief had previously been the subject of criminal and\n\ninternal investigations for engaging in domestic violence. She\n\nalso learned that he had not disclosed that information during an\n\nextensive vetting process for this leadership position in law\n\nenforcement. That the mayor decided to withdraw the candidate's\n\nnomination in that specific context does not indicate any\n\n\"purposeful effort\" by Fitchburg -- through Wong -- to demean the\n\nclass that this part of Chapter 151B protects more generally. Id.\n\nAnd, thus, far from \"need[ing] [punitive damages] to deter such\n\nbehavior toward the class of which plaintiff is a member,\" id., we\n\nagree with Fitchburg that such conduct \"is unlikely to be\n\nrepeated.\"\n\n Finally, we cannot conclude that evidence of Wong's\n\npurported \"attempted cover-up\" of the statutory violation by\n\nallegedly lying at trial constitutes \"concealment\" of a degree\n\n\"warrant[ing] public condemnation and punishment.\" Id. at 75. To\n\nbe sure, Heagney points to some precedent supporting the notion\n\nthat a jury may award punitive damages on the basis of a public\n\n\ndoes not make any argument, however, that evidence that Fitchburg's\nconduct was conscious or purposeful (as opposed to its violation\nof Chapter 151B) supports the award of punitive damages, and\nFitchburg does not challenge the instruction.\n\n\n - 39 -\n\fofficial's conduct at trial. See, e.g., Hall v. Ochs, 817 F.2d\n\n920, 927 (1st Cir. 1987) (upholding the jury's award of punitive\n\ndamages under Massachusetts law in part because of the police\n\nofficers' conduct at trial); Ciccarelli v. Sch. Dep't of Lowell,\n\n877 N.E.2d 609, 618 (Mass. App. Ct. 2007) (upholding punitive\n\ndamages award in part because of a superintendent's false testimony\n\nat trial). But this case is readily distinguished from those\n\nprecedents.\n\n In Hall, the defendants, four police officers found to\n\nhave engaged in racially motivated false arrests, argued at trial\n\nthat the plaintiffs' testimony against them was deliberately false\n\nand provided a likely fabricated police report to support their\n\nallegations. See Hall, 817 F.2d at 927-28. \"On this evidence, a\n\nfactfinder might [have] infer[red] that the stark clash could not\n\nhave resulted from innocent misrecollection, and that its\n\nintentional quality intensified any need the jury may have found\n\nfor punishment and deterrence.\" Id. at 928.\n\n In Ciccarelli, moreover, the defendant was a school\n\nsuperintendent who was found to have retaliated against a teacher\n\nwho was about to testify against the city in a separate hearing by\n\nfiring her. At the trial, the superintendent gave false testimony\n\nthat she did not know about the teacher's prospective testimony.\n\nCiccarelli, 877 N.E.2d at 618. But, that evidence was directly\n\ncontradicted by affirmative evidence of the superintendent's\n\n\n - 40 -\n\fpresence at the hearing where the teacher testified. Id.\n\nMoreover, Ciccarelli concluded that the evidence sufficed to show\n\nthat the superintendent later actively fabricated an excuse that\n\nshe fired the teacher because the teacher was not on track to\n\ncomplete coursework toward advanced certification. Id. And, the\n\nrecord further showed that the superintendent had offered to\n\nreinstate the teacher the day before the teacher's prospective\n\ntestimony in the hearing, which, Ciccarelli concluded, \"the jury\n\ncould therefore infer . . . was meant to influence that testimony.\"\n\nId. Ciccarelli thus determined from the totality of this evidence\n\nthat \"such behavior by a high-ranking public official in charge of\n\neducation of a city's children was outrageous\" enough to \"place\n\nthe issue of punitive damages before the jury.\" Id. at 617-18.\n\n Here, by contrast, Wong's account at trial was that she\n\ndecided not to nominate Heagney because he had lied on his résumé\n\nand application materials regarding prior employment. And, the\n\njury found that Wong's statement that Heagney \"was not forthcoming\n\non his résumé about his work experience\" was true. Thus, unlike\n\nin Hall, 817 F.2d at 928, where the police officers fabricated a\n\npolice report, or in Ciccarelli, 877 N.E.2d at 618, where the\n\nsuperintendent manufactured an excuse in order to fire the teacher,\n\nWong did not actively fabricate an allegation of misconduct to use\n\nas an excuse for her decision not to nominate Heagney.\n\n\n\n\n - 41 -\n\f Nor is the other testimony on which Heagney relies \"so\n\negregious as to warrant the condemnation and enhanced deterrence\n\nthat underlie the imposition of punitive damages.\" Smith v. Bell\n\nAtl., 829 N.E.2d 228, 245 (Mass. App. Ct. 2005). As to Wong's\n\nanswer \"no\" when asked if she had read the anonymous letter, Wong\n\nimmediately qualified her answer by stating that she \"didn't really\n\nread the letter,\" but instead \"perused it and saw that it was\n\nsomething related to Scott Heagney, and . . . forwarded it to Mr.\n\nStephens to be part of his file.\" Similarly, Wong's answer \"no\"\n\nwhen asked if she told Owen that she \"could no longer support Mr.\n\nHeagney because he had not disclosed the early criminal charge\"\n\nwas immediately qualified by a statement \"that is what [Owen] wrote\n\nwithout quotes.\"\n\n Of course, the jury's finding for Heagney on the Chapter\n\n151B claim suggests that it did not credit some of Wong's testimony\n\nconcerning her motivation for withdrawing his nomination. But,\n\n\"the fact that the jury drew an inference against [Wong] does not\n\nequate with positive evidence that [s]he lied or . . . orchestrated\n\na cover up.\" Kiely, 13 N.E.2d at 622. Thus, the most that Heagney\n\nhas offered is an \"assert[ion] that the jury's apparent disbelief\n\nof [Wong's] testimony . . . is also proof that [Wong] attempted to\n\ncover up [her] wrongdoing.\" Id. at 621-22. But, as Kiely shows,\n\nthat alone is not enough to support punitive damages. See id. at\n\n620.\n\n\n - 42 -\n\f We thus do not see how the record reflects conduct so\n\n\"outrageous or egregious\" so as to require punitive damages in\n\norder to \"deter such behavior\" or to express \"public condemnation\n\nand punishment[.]\"7 Haddad, 914 N.E.2d at 75. Because we conclude\n\nthat there was insufficient evidence to support the award of\n\npunitive damages under Haddad, we need not reach whether the award\n\nwas unreasonable or excessive. Accordingly, the award of punitive\n\ndamages is reversed.\n\n IV.\n\n For the foregoing reasons, we reverse the judgment on\n\nthe defamation claim, affirm the judgment on the Chapter 151B\n\nclaim, and reverse the award of punitive damages on the Chapter\n\n151B claim. Each party shall bear its own costs.\n\n\n\n\n 7 Wong was an official \"charged with the public duty to enforce\nthe law equally,\" Dalrymple v. Winthrop, 740 N.E.2d 204, 211 (Mass.\nApp. Ct. 2000), and that fact may give her actions \"a heightened\ndegree of reprehensibility,\" Clifton, 839 N.E.2d at 323; see also\nKiely, 13 N.E.3d at 622 n.6 (noting that this \"factor\" was \"absent\nfrom the case at bar\"). But, Heagney makes no argument -- nor\nhave we found any post-Haddad authority suggesting -- that Wong's\nstatus as a public official alone is sufficient to sustain a jury's\naward of punitive damages for a Chapter 151B violation by the city\nthat employs that official in a case involving facts like these.\nCompare with Clifton, 839 N.E.2d at 316 (upholding award of\npunitive damages against city transit authority where \"both\nsupervisors and coworkers\" engaged in extensive racial\ndiscrimination against a plaintiff \"throughout nine years of his\nemployment\").\n\n\n - 43 -\n[END_CASE]",
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4,591,322 | AURELIUS INVESTMENT, LLC, Et Al., Appellants, v. Commonwealth of PUERTO RICO, Et Al., Appellees. Assured Guaranty Corporation, Et Al., Appellants, v. Financial Oversight and Management Board, Et Al., Appellees. Unión De Trabajadores De La Industria Eléctrica Y Riego (Utier), Appellant, v. Puerto Rico Electric Power Authority, Et Al., Appellees. | Aurelius Inv., LLC v. Puerto Rico | 2019-02-15 | 18-1671P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Thompson, Kayatta", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNos. 18-1671, 18-1746, 18-1787\n\n AURELIUS INVESTMENT, LLC, ET AL.,\n Appellants,\n\n v.\n\n COMMONWEALTH OF PUERTO RICO, ET AL.,\n Appellees.\n ____________________\n\n ASSURED GUARANTY CORPORATION, ET AL.,\n Appellants,\n\n v.\n\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD, ET AL.,\n Appellees.\n ____________________\n\n UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO (UTIER),\n Appellant,\n\n v.\n\n PUERTO RICO ELECTRIC POWER AUTHORITY, ET AL.,\n Appellees.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Laura Taylor Swain,* U.S. District Judge]\n\n\t\n\n\n\n\n* Of the Southern District of New York, sitting by designation.\n\f Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n Theodore B. Olson, with whom Matthew D. McGill, Helgi C.\nWalker, Lucas C. Townsend, Lochlan F. Shelfer, Jeremy M.\nChristiansen, and Gibson, Dunn & Crutcher LLP were on brief, for\nappellants Aurelius Investment, LLC and Assured Guaranty\nCorporation.\n Rolando Emmanuelli-Jiménez, with whom Jessica E. Méndez-\nColberg, Yasmín Colón-Colón, and Bufete Emmanuelli, C.S.P. were on\nbrief, for appellant UTIER.\n Donald B. Verrilli, Jr., with whom Ginger D. Anders, Chad I.\nGolder, Sarah G. Boyce, Rachel G. Miller-Ziegler, Munger, Tolles\n& Olson LLP, Martin J. Bienenstock, Stephen L. Ratner, Timothy W.\nMungovan, Mark D. Harris, Chantel L. Febus, Proskauer Rose LLP,\nHermann D. Bauer, Ubaldo M. Fernández, and O'Neill & Borges LLC\nwere on brief, for appellee The Financial Oversight and Management\nBoard for Puerto Rico.\nWalter Dellinger, Peter Friedman, John J. Rapisardi, William J.\nSushon, and O'Melveny & Myers LLP on brief, for The Puerto Rico\nFiscal Agency and Financial Advisory Authority.\n Jeffrey B. Wall, with whom Laura E. Myron, Attorney, Appellate\nStaff, Civil Division, U.S. Department of Justice, Joseph H. Hunt,\nAssistant Attorney General, Thomas G. Ward, Deputy Assistant\nAttorney General, Mark R. Freeman, Michael S. Raab, and Michael\nShih, Attorneys, Appellate Staff, Civil Division, were on brief,\nfor appellee the United States.\n José A. Hernández-Mayoral, with whom Rafael Hernández-Colón,\nand Héctor Ferrer-Ríos, were on brief, as amicus curiae, for the\nPopular Democratic Party of Puerto Rico and its President.\n Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero,\nM.L. & R.E. Law Firm, Aníbal Acevedo-Vilá and Law Office Aníbal\nAcevedo-Vilá were on brief, as amici curiae.\n Luc A. Despins and Paul Hastings LLP on brief, for The\nOfficial Committee of Unsecured Creditors of All Puerto Rico Title\nIII Debtors.\n Ian Heath Gershengorn, Lindsay C. Harrison, William K.\nDreher, Catherine Steege, Melissa Root, Robert Gordon, Richard\nLevin, A.J. Bennazar-Zequeira, and Bennazar, García, & Milián,\nC.S.P. on brief, for The Official Committee of Retired Employees\nof the Commonwealth of Puerto Rico.\n\n\n -2-\t\n\f Charles J. Cooper, Michael W. Kirk, Howard C. Nielson, Jr.,\nJohn D. Ohlendorf, Haley N. Proctor, Cooper & Kirk, PLLC, Rafael\nEscalera, Carlos R. Rivera-Ortiz, Sylvia M. Arizmendi-López de\nVictoria, and Reichard & Escalera on brief, for Creditors-\nAppellees the Cofina Senior Bondholders' Coalition.\n Manuel A. Rodríguez-Banchs, and Matthew S. Blumin, on brief,\nfor appellee American Federal of State, County & Municipal\nEmployees.\n\n\n\n\n February 15, 2019\n\n\n\n\n -3-\n\f TORRUELLA, Circuit Judge. The matter before us arises\n\nfrom the restructuring of Puerto Rico's public debt under the 2016\n\nPuerto Rico Oversight, Management, and Economic Stability Act\n\n(\"PROMESA\"). This time, however, we are not tasked with delving\n\ninto the intricacies of bankruptcy proceedings. Instead, we are\n\nrequired to square off with a single question of constitutional\n\nmagnitude: whether members of the Financial Oversight and\n\nManagement Board created by PROMESA (\"Board Members\") are\n\n\"Officers of the United States\" subject to the U.S. Constitution's\n\nAppointments Clause. Title III of PROMESA authorizes the Board\n\nto initiate debt adjustment proceedings on behalf of the Puerto\n\nRico government, and the Board exercised this authority in May\n\n2017. Appellants seek to dismiss the Title III proceedings,\n\nclaiming the Board lacked authority to initiate them given that\n\nthe Board Members were allegedly appointed in contravention of the\n\nAppointments Clause.\n\n Before we can determine whether the Board Members are\n\nsubject to the Appointments Clause, we must first consider two\n\nantecedent questions that need be answered in sequence, with the\n\nanswer to each deciding whether we proceed to the next item of\n\ninquiry. The first question is whether, as decided by the district\n\ncourt and claimed by appellees, the Territorial Clause displaces\n\nthe Appointments Clause in an unincorporated territory such as\n\n\n -4-\n\fPuerto Rico. If the answer to this first question is \"no,\" our\n\nsecond area of discussion turns to determining whether the Board\n\nMembers are \"Officers of the United States,\" as only officers of\n\nthe federal government fall under the purview of the Appointments\n\nClause. If the answer to this second question is \"yes,\" we must\n\nthen determine whether the Board Members are \"principal\" or\n\n\"inferior\" United States officers, as that classification will\n\ndictate how they must be appointed pursuant to the Appointments\n\nClause. But before we enter fully into these matters, it is\n\nappropriate that we take notice of the developments that led to\n\nthe present appeal.\n\n BACKGROUND\n\n The centerpieces of the present appeals are two\n\nprovisions of the Constitution of the United States. The first\n\nis Article II, Section 2, Clause 2, commonly referred to as the\n\n\"Appointments Clause,\" which establishes that:\n\n [The President] . . . shall nominate, and by and with\n the Advice and Consent of the Senate, shall appoint\n . . . all other Officers of the United States, whose\n Appointments are not herein otherwise provided for,\n and which shall be established by Law: but the\n Congress may by Law vest the Appointment of such\n inferior Officers, as they think proper, in the\n President alone, in the Courts of Law, or in the Heads\n of Departments.\n\nU.S. Const. art. II, § 2, cl. 2.\n\t\n\n\n\n -5-\n\f The second is Article IV, Section 3, Clause 2, or the\n\n\"Territorial Clause,\" providing Congress with the \"power to\n\ndispose of and make all needful Rules and Regulations respecting\n\nthe Territory . . . belonging to the United States.\" U.S. Const.\n\nart. IV, § 3, cl. 2.\n\n A. Puerto Rico's Financial Crisis\n\n The interaction between these two clauses comes into\n\nfocus because of events resulting from the serious economic\n\ndownfall that has ailed the Commonwealth of Puerto Rico since the\n\nturn of the 21st Century, see Center for Puerto Rican Studies,\n\nPuerto Rico in Crisis Timeline, Hunter College (2017),\n\nhttps://centropr.hunter.cuny.edu/sites/default/files/PDF_Publica\n\ntions/Puerto-Rico-Crisis-Timeline-2017.pdf; see generally Juan R.\n\nTorruella, Why Puerto Rico Does Not Need Further Experimentation\n\nwith Its Future: A Reply to the Notion of \"Territorial Federalism\",\n\n131 Harv. L. Rev. F. 65 (2018), and its Governor's declaration in\n\nthe summer of 2015 that the Commonwealth was unable to meet its\n\nestimated $72 billion public debt obligation, see Michael Corkery\n\n& Mary Williams Walsh, Puerto Rico's Governor Says Island's Debts\n\nAre \"Not Payable\", N.Y. Times (June 28, 2015), https://www.nytimes\n\n.com/2015/06/29/business/dealbook/puerto-ricos-governor-says-\n\nislands-debts-are-not-payable.html. This obligation developed,\n\nin substantial part, from the triple tax-exempt bonds issued and\n\n\n -6-\n\fsold to a large variety of individual and institutional investors,\n\nnot only in Puerto Rico but also throughout the United States.1\n\nGiven the unprecedented expansiveness of the default in terms of\n\ntotal debt, the number of creditors affected, and the creditors'\n\ngeographic diversity, it became self-evident that the\n\nCommonwealth's insolvency necessitated a national response from\n\nCongress. Puerto Rico's default was of particular detriment to\n\nthe municipal bond market where Commonwealth bonds are traded and\n\nupon which state and local governments across the United States\n\nrely to finance many of their capital projects. See Nat'l Assoc.\n\nof Bond Lawyers, Tax-Exempt Bonds: Their Importance to the National\n\nEconomy and to State and Local Governments 5 (Sept. 2012),\n\nhttps://www.nabl.org/portals/0/documents/NABL_White_Paper.pdf.\n\n From 1938 until 1984, Puerto Rico was able, like all\n\nother U.S. jurisdictions, to seek the protection of Chapter 9 of\n\nthe U.S. Bankruptcy Code when its municipal instrumentalities ran\n\ninto financial difficulties. See Franklin Cal. Tax-Free Trust v.\n\nPuerto Rico, 805 F.3d 322, 345-50 (1st Cir. 2015) (Torruella, J.,\n\nconcurring). But without any known or documented explanation, in\n\n1984, Congress extirpated from the Bankruptcy Code the\n\n\n1 Since 1917 Congress has authorized exemption of Puerto Rico\nbonds from taxation by the federal, state, and municipal\ngovernments. See An Act to provide a civil government for Porto\nRico, and for other purposes, ch. 145, § 3, 39 Stat. 953 (1917).\n\n\n -7-\n\favailability of this relief for the Island. Id. at 350. In an\n\nattempt to seek self-help, and amidst the Commonwealth's deepening\n\nfinancial crisis, the Puerto Rico Legislature passed its own\n\nmunicipal bankruptcy legislation in 2014. See Puerto Rico Public\n\nCorporation Debt Enforcement and Recovery Act of 2014, 2014 P.R.\n\nLaws Act No. 71; see generally Lorraine S. McGowen, Puerto Rico\n\nAdopts a Debt Recovery Act for Its Public Corporations, 10 Pratt's\n\nJ. Bankr. L. 453 (2014). The Commonwealth's self-help journey,\n\nhowever, was cut short by the Supreme Court in Puerto Rico v.\n\nFranklin Cal. Tax-Free Tr., 136 S. Ct. 1938 (2016), which\n\ninvalidated the Puerto Rico bankruptcy statute. Coincidentally,\n\nthe Supreme Court decided Franklin Cal. on June 13, 2016 -- seven\n\ndays before the following congressional intervention into this\n\nsequence of luckless events.\n\n B. Congress Enacts PROMESA\n\n On June 30, 2016, Congress's next incursion into Puerto\n\nRico's economic fortunes took place in the form of Public Law 114-\n\n187, the Puerto Rico Oversight, Management, and Economic Stability\n\nAct (PROMESA),2 48 U.S.C. § 2101 et seq., which Congress found\n\nnecessary to deal with Puerto Rico's \"fiscal emergency\" and to\n\n\n\n2 Since its proposed enactment this legislation has been labeled\nby the acronym \"PROMESA,\" which in the Spanish language stands for\n\"promise.\"\n\n\n -8-\n\fhelp mitigate the Island's \"severe economic decline.\" See id.\n\n§ 2194(m)(1). Congress identified the Territorial Clause as the\n\nsource of its authority to enact this law. See id. § 2121(b)(2).\n\n To implement PROMESA, Congress created the Financial\n\nOversight and Management Board of Puerto Rico (the \"Board\").\n\nCongress charged the Board with providing independent supervision\n\nand control over Puerto Rico's financial affairs and helping the\n\nIsland \"achieve fiscal responsibility and access to the capital\n\nmarkets.\" Id. § 2121(a). In so proceeding, Congress stipulated\n\nthat the Board was \"an entity [created] within the territorial\n\ngovernment\" of Puerto Rico, id. § 2121(c)(1), which \"shall not be\n\nconsidered to be a department, agency, establishment, or\n\ninstrumentality of the Federal Government,\" id. § 2121(c)(2), and\n\nthat it was to be funded entirely from Commonwealth resources, id.\n\n§ 2127.3\n\n Although PROMESA places the Board \"within\" the Puerto\n\nRico territorial government, Section 108 of PROMESA, which is\n\nlabeled \"Autonomy of Oversight Board,\" id. § 2128, precludes the\n\nPuerto Rico Governor and Legislature from exercising any power or\n\nauthority over the so-called \"territorial entity\" that PROMESA\n\n\n\n3 A new account -- under the Board's exclusive control -- was\nrequired to be established by the Puerto Rico government within\nits Treasury Department to fund Board operations.\n\n\n -9-\n\fcreates. Instead, it subordinates the Puerto Rico territorial\n\ngovernment to the Board, as it unambiguously pronounces that:\n\n (a) . . . Neither the Governor nor the\n Legislature may --\n\n (1) exercise any control, supervision,\n oversight, or review over the . . . Board or\n its activities; or\n\n (2) enact, implement, or enforce any statute,\n resolution, policy, or rule that would impair\n or defeat the purposes of this chapter, as\n determined by the . . . Board.\n\nId. § 2128(a).\n\n PROMESA also provides additional authority and powers to\n\nthe Board with similarly unfettered discretion. For example,\n\nSection 101(d)(1)(A) grants the Board, \"in its sole discretion at\n\nsuch time as the . . . Board determines to be appropriate,\" the\n\ndesignation of \"any territorial instrumentality as a covered\n\nterritorial instrumentality that is subject to the requirements of\n\n[PROMESA].\" Id. § 2121(d)(1)(A). Under Section 101(d)(1)(B),\n\nthe Board, \"in its sole discretion,\" may require the Governor of\n\nPuerto Rico to submit \"such budgets and monthly or quarterly\n\nreports regarding a covered territorial instrumentality as the\n\n. . . Board determines to be necessary . . .\" Id. § 2121(d)(1)(B).\n\nPursuant to Section 101(d)(1)(C), the Board is allowed, \"in its\n\nsole discretion,\" to require separate budgets and reports for\n\ncovered territorial instrumentalities apart from the\n\n\n -10-\n\fCommonwealth's budget, and to require the Governor to develop said\n\nseparate documents. Id. § 2121(d)(1)(C). Per Section 101(d)(1)(D),\n\nthe \"Board may require, in its sole discretion,\" that the Governor\n\n\"include a covered territorial instrumentality in the applicable\n\nTerritory Fiscal Plan.\" Id. § 2121(d)(1)(D). Further, as\n\nprovided in Section 101(d)(1)(E), the Board may, \"in its sole\n\ndiscretion,\" designate \"a covered territorial instrumentality to\n\nbe the subject of [a separate] Instrumentality Fiscal Plan.\" Id.\n\n§ 2121(d)(1)(E). Finally, Section 101(d)(2)(A) bestows upon the\n\nBoard, again \"in its sole discretion, at such time as the . . .\n\nBoard determines to be appropriate,\" the authority to \"exclude any\n\nterritorial instrumentality from the requirements of [PROMESA].\"\n\nId. § 2121(d)(2)(A).\n\n PROMESA also requires the Board to have an office in\n\nPuerto Rico and elsewhere as it deems necessary, and that at any\n\ntime the United States may provide the Board with use of federal\n\nfacilities and equipment on a reimbursable or non-reimbursable\n\nbasis. Id. § 2122. Additionally, Section 103(c) waives the\n\napplication of Puerto Rico procurement laws to the Board, id.\n\n§ 2123(c), while Section 104(c) authorizes the Board to acquire\n\ninformation directly from both the federal and Puerto Rico\n\ngovernments without the usual bureaucratic hurdles, id. § 2124(c).\n\nMoreover, the Board's power to issue and enforce compliance with\n\n\n -11-\n\fsubpoenas is to be carried out in accordance with Puerto Rico law.\n\nId. § 2124(f).4 Finally, PROMESA directs the Board to ensure that\n\nany laws prohibiting public employees from striking or engaging in\n\nlockouts be strictly enforced. Id. § 2124(h).\n\n We thus come to PROMESA's Title III, the central\n\nprovision of this statute, which creates a special bankruptcy\n\nregime allowing the territories and their instrumentalities to\n\nadjust their debt. Id. §§ 2161-77. This new bankruptcy safe\n\nhaven applies to territories more broadly than Chapter 9 applies\n\nto states because it covers not just the subordinate\n\ninstrumentalities of the territory, but also the territory itself.\n\nId. § 2162.\n\n An important provision of PROMESA's bankruptcy regime is\n\nthat the Board serves as the sole representative of Puerto Rico's\n\ngovernment in Title III debtor-related proceedings, id. § 2175(b),\n\nand that the Board is empowered to \"take any action necessary on\n\nbehalf of the debtor\" -- whether the Commonwealth government or\n\nany of its instrumentalities -- \"to prosecute the case of the\n\ndebtor,\" id. § 2175(a).\n\n\t\n\n\n4 We note that 48 U.S.C. § 2124(f)(1) makes reference to the\nPuerto Rico Rules of Civil Procedure of 1979, 32 L.P.R.A. App. III,\neven though those rules were repealed and replaced by the Puerto\nRico Rules of Civil Procedure of 2009, 32 L.P.R.A. App. V.\n\n\n -12-\n\f C. Appointment of Members to PROMESA's Board\n\n PROMESA establishes that the \"Board shall consist of\n\nseven members appointed by the President,\" who must comply with\n\nfederal conflict of interest statutes. Id. § 2121(e)(1)(A).5 The\n\nBoard's membership is divided into six categories, labelled A\n\nthrough F, with one member for Categories A, B, D, E, and F, and\n\ntwo members for Category C. Id. § 2121(e)(1)(B).6 The Governor\n\nof Puerto Rico, or his designee, also serves on the Board, but in\n\nan ex officio, non-voting capacity. Id. § 2121(e)(3). The\n\nBoard's duration is for an indefinite period, at a minimum four\n\nyears and likely more, given the certifications that Section 209\n\nof PROMESA requires.7\n\n\n5 Section 2121(e)(1)(A) of PROMESA cross-references section\n2129(a), which, for its part, incorporates 18 U.S.C. § 208's\ndispositions governing conflicts of interest.\n6 As will be discussed in detail below, the assigned category\naffects a prospective Board member's eligibility requirements and\nappointment procedure.\n7 Section 209 of PROMESA states that the Board shall terminate\nwhen it certifies that:\n\n (1) the applicable territorial government has adequate\n access to short-term and long-term credit markets at\n reasonable interest rates to meet the borrowing needs of\n the territorial government; and\n\n (2) for at least 4 consecutive fiscal years --\n\n (A) the territorial government has developed its\n Budgets in accordance with modified accrual\n accounting standards; and\n\n\n -13-\n\f Pursuant to Section 101(f) of PROMESA, individuals are\n\neligible for appointment to the Board only if they:\n\n (1) ha[ve] knowledge and expertise in finance,\n municipal bond markets, management, law, or the\n organization or operation of business or government;\n and\n\n (2) prior to appointment, [they are] not an officer,\n elected official, or employee of the territorial\n government, a candidate for elected office of the\n territorial government, or a former elected official\n of the territorial government.\n\nId. § 2121(f). In addition, there are certain primary residency\n\nor primary business place requirements that must be met by some of\n\nthe Board Members. Id. § 2121(e)(2)(B)(i), (D) (requiring that\n\nthe Category A Board Member \"maintain a primary residence in the\n\nterritory or have a primary place of business in the territory\").\n\n Of particular importance to our task at hand is\n\nSection 101(e)(2)(A), which outlines the procedure for the\n\nappointment of the Board Members:\n\n (A) The President shall appoint the individual members\n of the . . . Board of which --\n\n (i) the Category A member should be selected from a\n list of individuals submitted by the Speaker of the\n House of Representatives;\n\n (B) the expenditures made by the territorial\n government during each fiscal year did not exceed the\n revenues of the territorial government during that\n year, as determined in accordance with modified\n accrual accounting standards.\n\n48 U.S.C. § 2149.\n\n\n -14-\n\f (ii) the Category B member should be selected from a\n separate, non-overlapping list of individuals\n submitted by the Speaker of the House of\n Representatives;\n\n (iii) the Category C member should be selected from a\n list submitted by the Majority Leader of the Senate;\n\n (iv) the Category D member should be selected from a\n list submitted by the Minority Leader of the House of\n Representatives;\n\n (v) the Category E member should be selected from a\n list submitted by the Minority leader of the Senate;\n and\n\n (vi) the category F member may be selected in the\n President's sole discretion.\n\nId. § 2121(e)(2)(A).\n\n In synthesis, pursuant to this scheme, six of the seven\n\nBoard Members shall be selected by the President from the lists\n\nprovided by House and Senate leadership, with PROMESA allowing the\n\nPresident to select the seventh member at his or her sole\n\ndiscretion. Senatorial advice and consent is not required if the\n\nPresident makes the appointment from one of the aforementioned\n\nlists. Id. § 2121(e)(2)(E). In theory, the statute allows the\n\nPresident to appoint a member to the Board who is not on the lists,\n\nin which case, \"such an appointment shall be by and with the advice\n\nand consent of the Senate.\" Id. Consent by the Senate had to be\n\nobtained by September 1, 2016 so as to allow an off-list\n\nappointment, else the President was required to appoint directly\n\n\n -15-\n\ffrom the lists. And because the Senate was in recess for all but\n\neight business days between enactment of the statute and\n\nSeptember 1, one might conclude that, in practical effect, the\n\nstatute forced the selection of persons on the list.\n\n As was arguably inevitable, on August 31, 2016, the\n\nPresident chose all Category A through E members from the lists\n\nsubmitted by congressional leadership and appointed the Category F\n\nmember at his sole discretion.8\n\n\n8 President Obama Announces the Appointment of Seven Individuals\nto the Financial Oversight and Management Board for Puerto Rico,\nThe White House Off. of the Press Sec'y (Aug. 31, 2016),\nhttps://obamawhitehouse.archives.gov/the-press-office/2016/08/\n31/president-obama-announces-appointment-seven-individuals-\nfinancial. The appointees included Andrew G. Biggs, a resident\nscholar at the American Enterprise Institute, and former holder of\nmultiple high ranking positions in the Social Security\nAdministration; José B. Carrión III, an experienced insurance\nindustry executive from Puerto Rico and the President and Principal\nPartner of HUB International CLC, LLC, which operates therein;\nCarlos M. García, a resident of Puerto Rico, the Chief Executive\nOfficer of BayBoston Managers LLC, Managing Partner of BayBoston\nCapital LP, who formerly served as Senior Executive Vice President\nand board member at Santander Holdings USA, Inc. (2011-2013), among\nother executive posts at Santander entities (1997-2008), and as\nChairman of the Board, President, and CEO of the Government\nDevelopment Bank for Puerto Rico (2009-2011); Arthur J. González,\na Senior Fellow at the New York University School of Law and former\nU.S. Bankruptcy Judge in the Southern District of New York (1995-\n2002); José R. González, CEO and President of the Federal Home\nLoan Bank of New York, which he joined in 2013, former Chief\nExecutive Officer and President of Santander Bancorp (2002-2008),\nand President of Santander Securities Corporation (1996-2001) and\nthe Government Development Bank of Puerto Rico (1986-1989); Ana J.\nMatosantos, President of Matosantos Consulting, former Director of\nthe State of California's Department of Finance (2009-2013) and\nChief Deputy Director for Budgets (2008-2009); and, David A. Skeel\nJr., professor of Corporate Law at the University of Pennsylvania\n\n -16-\n\f It is undisputed that the President did not submit any\n\nof the Board member appointments to the Senate for its advice and\n\nconsent prior to the Board Members assuming the duties of their\n\noffice, or, for that matter, at any other time.\n\n D. Litigation Before the District Court\n\n In May 2017, the Board initiated Title III debt\n\nadjustment proceedings on behalf of the Commonwealth in the U.S.\n\nDistrict Court for the District of Puerto Rico. See Title III\n\nPetition, In re Commonwealth of P.R., Bankruptcy Case No. 17-BK-\n\n3283 (LTS) (D.P.R. May 3, 2017). This was followed by the filing\n\nof several other Title III proceedings on behalf of various\n\nCommonwealth government instrumentalities. See Title III\n\nPetitions in: In re P.R. Sales Tax Fin. Corp. (COFINA), Bankruptcy\n\nCase No. 17-BK-3284 (LTS) (D.P.R. May 5, 2017); In re Emps. Ret.\n\nSys. of the Gov't of the Commonwealth of P.R. (ERS), 17-BK-3566\n\n(LTS) (D.P.R. May 21, 2017); In re P.R. Highways and Transp. Aut.\n\n(HTA); Bankruptcy Case No. 17-BK-3567 (LTS) (D.P.R. May 21, 2017);\n\nIn re P.R. Elec. Power Auth. (PREPA) [hereinafter In re PREPA],\n\nBankruptcy Case No. 17-BK-4780 (LTS) (D.P.R. Jul. 7, 2017).\n\nThereafter, some entities -- now the appellants before us -- arose\n\n\n\n\nLaw School, which he joined in 1999.\n\n\n -17-\n\fin opposition to the Board's initiation of debt adjustment\n\nproceedings on behalf of the Commonwealth.\n\n Among the challengers are Aurelius Investment, LLC, et\n\nal. and Assured Guaranty Corporation, et al. (\"Aurelius\"). Before\n\nthe district court, Aurelius argued that the Board lacked authority\n\nto initiate the Title III proceeding because its members were\n\nappointed in violation of the Appointments Clause and the principle\n\nof separation of powers. The Board rejected this argument,\n\npositing that its members were not \"Officers of the United States\"\n\nwithin the meaning of the Appointments Clause, and that the Board's\n\npowers were purely local in nature, not federal as would be needed\n\nto qualify for Appointments Clause coverage. The Board further\n\nargued that, in any event, the Appointments Clause did not apply\n\neven if the individual members were federal officers, because they\n\nexercised authority in Puerto Rico, an unincorporated territory\n\nwhere the Territorial Clause endows Congress with plenary powers.\n\nThis, according to the Board, exempted Congress from complying\n\nwith the Appointments Clause when legislating in relation to Puerto\n\nRico. In the alternative, the Board argued that the Board Members'\n\nappointment did not require Senate advice and consent because they\n\nwere \"inferior officers.\" The United States intervened on behalf\n\nof the Board, pursuant to 28 U.S.C. § 2403(a), to defend the\n\n\n\n\n -18-\n\fconstitutionality of PROMESA and the validity of the appointments\n\nand was generally in agreement with the Board's contentions.\n\n The other challenger to the Board's appointments\n\nprocess, and an appellant here, is the Unión de Trabajadores de la\n\nIndustria Eléctrica y Riego (\"UTIER\"), a Puerto Rican labor\n\norganization that represents employees of the government-owned\n\nelectric power company, the Puerto Rico Electric Power Authority\n\n(\"PREPA\"). The Board had also filed a Title III petition on behalf\n\nof PREPA, see In re PREPA, supra, which led the UTIER to file an\n\nadversary proceeding as a party of interest before the District\n\nCourt in which it raised substantially the same arguments as\n\nAurelius regarding the Board Members' defective appointment, see\n\nUnión de Trabajadores de la Industria Eléctrica y Riego v. P.R.\n\nElec. Power Auth., No. 17-228 (LTS) (D.P.R. Aug. 15, 2018); see\n\nalso Adversary Complaint, Unión de Trabajadores de la Industria\n\nEléctrica y Riego v. P.R. Elec. Power Auth., No. 17-229 (LTS)\n\n(D.P.R. Aug. 7, 2017) (describing the terms of the UTIER-PREPA\n\ncollective bargaining agreement).\n\n E. The District Court's Opinion\n\n The district court, in separate decisions, ruled against\n\nAurelius and UTIER and rejected their motions to dismiss the\n\nBoard's Title III petitions. In re Commonwealth of P.R.,\n\nBankruptcy Case No. 17-BK-3283 (LTS) (D.P.R. July 3, 2018);\n\n\n -19-\n\fAssured Guar. Mun. Corp. v. Fin. Oversight and Mgmt. Bd. for P.R.,\n\nNo. 18-87 (LTS) (D.P.R. Aug. 3, 2018); UTIER v. PREPA, No. 17-228\n\n(LTS). In brief, the district court determined that the Board is\n\nan instrumentality of the Commonwealth government established\n\npursuant to Congress's plenary powers under the Territorial\n\nClause, that Board Members are not \"Officers of the United States,\"\n\nand that therefore there was no constitutional defect in the method\n\nof their appointment. The court arrived at this conclusion after\n\nconsidering the jurisprudence and practice surrounding the\n\nrelationship between Congress and the territories, including\n\nPuerto Rico, along with Congress's intent with regards to PROMESA.\n\n The district court based its ruling on the premise that\n\n\"the Supreme Court has long held that Congress's power under [the\n\nTerritorial Clause] is both 'general and plenary.'\" Such a\n\nplenary authority is what, according to the district court, allows\n\nCongress to \"establish governmental institutions for territories\n\nthat are not only distinct from federal government entities but\n\ninclude features that would not comport with the requirements of\n\nthe Constitution if they pertained to the governance of the United\n\nStates.\" The district court further pronounced that Congress \"has\n\nexercised [its plenary] power with respect to Puerto Rico over the\n\ncourse of nearly 120 years, including the delegation to the people\n\n\n\n\n -20-\n\fof Puerto Rico elements of its . . . Article IV authority by\n\nauthorizing a significant degree of local self-governance.\"\n\n The district court also relied on judicial precedents\n\nholding that Congress may create territorial courts that do not\n\n\"incorporate the structural assurances of judicial independence\"\n\nprovided for in Article III of the Constitution -- namely, life\n\ntenure and protection against reduction in pay -- as decisive\n\nauthority. From the perdurance of these non-Article III courts\n\nacross the territories (excepting, of course, Puerto Rico which\n\nalthough still an unincorporated territory has had, since 1966, an\n\nArticle III court),9 the district court reasoned that \"Congress\n\ncan thus create territorial entities that are distinct in\n\nstructure, jurisdiction, and powers from the federal government.\"\n\n\n\n9 Act of Sept. 12, 1966, Public Law 89-571, 80 Stat. 764 (granting\njudges appointed to the District of Puerto Rico the same life\ntenure and retirement rights granted to judges of all other United\nStates district courts); see also Examining Bd. of Engineers,\nArchitects & Surveyors v. Flores de Otero, 426 U.S. 572, 594 n.26\n(1976) (\"The reason given [by Congress] for [Public Law 89-571]\nwas that the Federal District Court in Puerto Rico 'is in its\njurisdiction, powers, and responsibilities the same as the U. S.\ndistrict courts in the (several) States.'\" (quoting S. Rep. No.\n89-1504 at 2 (1966))); Igartúa-De La Rosa v. United States, 417\nF.3d 145, 169 (1st Cir. 2005) (en banc) (Torruella, J., dissenting)\n(\"An Article III District Court sits [in Puerto Rico], providing\nnearly one-third of the appeals filed before [the Court of Appeals\nfor the First Circuit], which sits in Puerto Rico at least twice\na year, also in the exercise of Article III power.\"); United States\nv. Santiago, 23 F. Supp. 3d 68, 69 (D.P.R. Feb. 12, 2014)\n(collecting cases and scholarly articles).\n\n\n -21-\n\f Turning to the relationship between Congress and Puerto\n\nRico, the district court noted that \"Congress has long exercised\n\nits Article IV plenary power to structure and define governmental\n\nentities for the island,\" in reference to the litany of\n\ncongressional acts that have shaped Puerto Rico's local government\n\nsince 1898, including the Treaty of Paris of 1898, the Foraker Act\n\nof 1900, the Jones-Shafroth Act of 1917, and Public Law 600 of\n\n1950.\n\n Furthermore, with regards to PROMESA and its Board, the\n\ndistrict court afforded \"substantial deference\" to \"Congress's\n\ndetermination that it was acting pursuant to its Article IV\n\nterritorial powers in creating the . . . Board as an entity of the\n\ngovernment of Puerto Rico.\" The district court then proceeded to\n\nconsider whether Congress can create an entity that is not\n\ninherently federal. It concluded in the affirmative, because\n\nfinding otherwise would \"ignore[] both the plenary nature of\n\ncongressional power under Article IV and the well-rooted\n\njurisprudence . . . establish[ing] that any powers of self-\n\ngovernance exercised by territorial governments are exercised by\n\nvirtue of congressional delegation rather than inherent local\n\nsovereignty.\" Accordingly, the district court found that the\n\n\"creation of an entity such as the . . . Board through popular\n\nelection would not change the . . . Board's ultimate source of\n\n\n -22-\n\fauthority from a constitutional perspective.\" The court deemed\n\nthis so because \"neither the case law nor the historical practice\n\n. . . compels a finding that federal appointment necessarily\n\nrenders an appointee a federal officer.\" The district court\n\ntherefore concluded that the Board is a territorial entity\n\nnotwithstanding\n\n [t]he fact that the . . . Board's members hold office\n by virtue of a federally enacted statutory regime and\n are appointed by the President[,] [because this] does\n not vitiate Congress's express provisions for\n creation of the . . . Board as a territorial\n government entity that \"shall not be considered to be\n a department, agency, establishment, or\n instrumentality of the Federal Government.\"\n\n After ruling that the Board is a \"territorial entity and\n\nits members are territorial officers,\" the district court finally\n\ndetermined that \"Congress had broad discretion to determine the\n\nmanner of selection for members of the . . . Board,\" which Congress\n\n\"exercised . . . in empowering the President with the ability to\n\nboth appoint and remove members from the . . . Board.\" On this\n\nfinal point, the district court observed that \"[a]lthough\n\nhistorical practice . . . indicates that Congress has required\n\nSenate confirmation for certain territorial offices, nothing in\n\nthe Constitution precludes the use of that mechanism for positions\n\ncreated under Article IV, and its use does not establish that\n\nCongress was obligated to invoke it.\"\n\n\n\n -23-\n\f The district court was certainly correct that Article IV\n\nconveys to Congress greater power to rule and regulate within a\n\nterritory than it can bring to bear within the fifty states. In\n\nbrief, within a territory, Congress has not only its customary\n\npower, but also the power to make rules and regulations such as a\n\nstate government may make within its state. See U.S. Const.\n\nart. IV, § 3, cl. 2; D.C. v. John R. Thompson Co., 346 U.S. 100,\n\n106 (1953); Simms v. Simms, 175 U.S. 162, 168 (1899). As we will\n\nexplain, however, we do not view these expanded Article IV powers\n\nas enabling Congress to ignore the structural limitations on the\n\nmanner in which the federal government chooses federal officers,\n\nand we deem the Board Members -- save its ex officio member10 --\n\nto be federal officers.\n\n DISCUSSION\n\n A. The Territorial Clause Does Not Trump the Appointments\n Clause\n\n However much Article IV may broaden the reach of\n\nCongress's powers over a territory as compared to its power within\n\na state, this case presents no claim that the substance of\n\nPROMESA's numerous rules and regulations exceed that reach.\n\n\n10 No Appointments Clause challenge has been brought concerning\nthe Governor of Puerto Rico, or the Governor's designee, who serves\nas an ex officio Board member without voting rights. See 48 U.S.C.\n§ 2121(e)(3). Our holding is therefore limited to the seven Board\nMembers appointed pursuant to 48 U.S.C. § 2121(e)(1)-(2).\n\n\n -24-\n\fInstead, appellants challenge the way the federal government has\n\nchosen the individuals who will implement those rules and\n\nregulations. This challenge trains our focus on the power of\n\nCongress vis-à-vis the other branches of the federal government.\n\nSpecifically, the Board claims that Article IV effectively allows\n\nCongress to assume what is otherwise a power of the President, and\n\nto share within the two bodies of Congress a power only assigned\n\nto the Senate.\n\n We reject this notion that Article IV enhances\n\nCongress's capabilities in the intramural competitions established\n\nby our divided system of government. First, the Board seems to\n\nforget -- and the district court failed to recognize and honor --\n\nthe ancient canon of interpretation that we believe is a helpful\n\nguide to disentangle the interface between the Appointments Clause\n\nand the Territorial Clause: generalia specialibus non derogant\n\n(the \"specific governs the general\"). See, e.g., Turner v.\n\nRogers, 564 U.S. 431, 452-53 (2011) (Thomas, J., dissenting)\n\n(applying this canon in the context of constitutional\n\ninterpretation in a conflict between the Due Process Clause and\n\nthe Sixth Amendment); Albright v. Oliver, 510 U.S. 266, 273-74\n\n(1994) (plurality opinion).\n\n The Territorial Clause is one of general application\n\nauthorizing Congress to engage in rulemaking for the temporary\n\n\n -25-\n\fgovernance of territories. See Reid v. Covert, 354 U.S. 1, 14\n\n(1957) (plurality opinion). But such a general empowerment does\n\nnot extend to areas where the Constitution explicitly contemplates\n\na particular subject, such as the appointment of federal officers.\n\nNowhere does the Territorial Clause reference the subject matter\n\nof federal appointments or the process to effectuate them. On the\n\nother hand, federal officer appointment is, of course, the raison\n\nd'etre of the Appointments Clause. It cannot be clearer or more\n\nunequivocal that the Appointments Clause mandates that it be\n\napplied to \"all . . . Officers of the United States.\" U.S. Const.\n\nart II, § 2, cl. 2 (emphasis added). Thus, we find in answering\n\nthe first question before us a prime candidate for application of\n\nthe specialibus canon and for the strict enforcement of the\n\nconstitutional mandate contained in the Appointments Clause.\n\n Consider next the Presentment Clause of Article I,\n\nSection 7. Under that clause, a bill passed by both chambers of\n\nCongress cannot become law until it is presented to, and signed\n\nby, the President (or the President's veto is overridden). U.S.\n\nConst. art. I, § 7, cl. 2. Surely no one argues that Article IV\n\nshould be construed so as to have allowed Congress to enact PROMESA\n\nwithout presentment, or to have overridden a veto without the\n\nrequisite super-majority vote in both houses. Nor does anyone\n\nseriously argue that Congress could have relied on its plenary\n\n\n -26-\n\fpowers under Article IV to alter the constitutional roles of its\n\ntwo respective houses in enacting PROMESA.\n\n Like the Presentment Clause, the Appointments Clause\n\nconstitutionally regulates how Congress brings its power to bear,\n\nwhatever the reach of that power might be. The Appointments Clause\n\nserves as one of the Constitution's important structural pillars,\n\none that was intended to prevent the \"manipulation of official\n\nappointments\" -- an \"insidious . . . weapon of eighteenth century\n\ndespotism.\" Freytag v. Comm'r, 501 U.S. 868, 883 (1991)\n\n(citations omitted); see also Edmond v. United States, 520 U.S.\n\n651, 659 (1997). The Appointments Clause was designed \"to\n\nprevent[] congressional encroachment\" on the President's\n\nappointment power, while \"curb[ing] Executive abuses\" by requiring\n\nSenate confirmation of all principal officers. Edmond, 520 U.S.\n\nat 659. It is thus universally considered \"among the significant\n\nstructural safeguards of the constitutional scheme.\" Id.\n\n It is true that another restriction that is arguably a\n\nstructural limitation on Congress's exercise of its powers -- the\n\nnondelegation doctrine -- does bend to the peculiar demands of\n\nproviding for governance within the territories. In normal\n\napplication, the doctrine requires that \"when Congress confers\n\ndecisionmaking authority upon agencies,\" it must \"lay down by\n\nlegislative act an intelligible principle to which the person or\n\n\n -27-\n\fbody authorized to [act] is directed to conform.\" Whitman v. Am.\n\nTrucking Ass'ns, 531 U.S. 457, 472 (2001) (quoting J.W. Hampton,\n\nJr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Otherwise,\n\nCongress has violated Article I, Section 1 of the Constitution,\n\nwhich vests \"[a]ll legislative Powers herein granted . . . in a\n\nCongress of the United States.\" Id.; see also U.S. Const. art.\n\nI, § 1. In connection with the territories, though, Congress can\n\ndelegate to territorial governments the power to enact rules and\n\nregulations governing territorial affairs. See John R. Thompson\n\nCo., 346 U.S. at 106 (\"The power of Congress to delegate\n\nlegislative power to a territory is well settled.\"); Cincinnati\n\nSoap Co. v. United States, 301 U.S. 308, 321-23 (1937); see also\n\nSimms, 175 U.S. at 168 (\"In the territories of the United States,\n\nCongress has the entire dominion and sovereignty, national and\n\nlocal, Federal and state, and has full legislative power over all\n\nsubjects upon which the legislature of a state might legislate\n\nwithin the state; and may, at its discretion, intrust that power\n\nto the legislative assembly of a territory.\"). The Supreme Court\n\nhas analogized the powers of Congress over the District of Columbia\n\nand the territories to that of states over their municipalities.\n\nSee John R. Thompson Co., 346 U.S. at 109. In the state-\n\nmunicipality context, \"[a] municipal corporation . . . is but a\n\ndepartment of the State. The legislature may give it all the\n\n\n -28-\n\fpowers such a being is capable of receiving, making it a miniature\n\nState within its locality.\" Barnes v. D.C., 91 U.S. 540, 544\n\n(1875); see also John R. Thompson Co., 346 U.S. at 109 (\"It would\n\nseem then that on the analogy of the delegation of powers of self-\n\ngovernment and home rule both to municipalities and to territories\n\nthere is no constitutional barrier to the delegation by Congress\n\nto the District of Columbia of full legislative power subject of\n\ncourse to constitutional limitations to which all lawmaking is\n\nsubservient and subject also to the power of Congress at any time\n\nto revise, alter, or revoke the authority granted.\"). The Supreme\n\nCourt has also made clear that, in delegating power to the\n\nterritories, Congress can only act insofar as \"other provisions of\n\nthe Constitution are not infringed.\" Atl. Cleaners & Dyers v.\n\nUnited States, 286 U.S. 427, 435 (1932).\n\n The territorial variations on the traditional\n\nrestrictions of the nondelegation doctrine pose no challenge by\n\nCongress to the power of the other branches. Any delegation must\n\ntake the form of a duly enacted statute subject to the President's\n\nveto. Furthermore, the territorial exception to the nondelegation\n\ndoctrine strikes us as strongly implicit in the notion of a\n\nterritory as envisioned by the drafters of the Constitution. The\n\nexpectation was that territories would become states. See Downes\n\nv. Bidwell, 182 U.S. 244, 380 (1901) (Harlan, J., dissenting).\n\n\n -29-\n\fHence, Congress had a duty -- at least a moral duty -- to manage\n\na transition from federal to home rule. While the final delegation\n\ntakes place in the act of formally creating a state, it makes\n\nevident sense that partial delegations of home-rule powers would\n\nincrementally precede full statehood. Accordingly, from the very\n\nbeginning, Congress created territorial legislatures to which it\n\ndelegated rule-making authority. See, e.g., An Ordinance for the\n\nGovernment of the Territory of the United States north-west of the\n\nriver Ohio (1787), ch. 8, 1 Stat. 50, 51 n.(a) (1789).\n\n None of these justifications for limiting the\n\nnondelegation doctrine to accommodate one of Congress's most\n\nsalient purposes in exercising its powers under Article IV applies\n\nto the Appointments Clause. Nor does the teaching of founding era\n\nhistory. To the contrary, the evidence suggests strongly that\n\nCongress in 1789 viewed the process of presidential appointment\n\nand Senate confirmation as applicable to the appointment by the\n\nfederal government of federal officers within the territories.\n\nThat first Congress passed several amendments to the Northwest\n\nOrdinance of 1787 \"so as to adopt the same to the present\n\nConstitution of the United States.\" Id. at 51. One such\n\nconforming amendment eliminated the pre-constitutional procedure\n\nfor congressional appointment of officers within the territory and\n\n\n\n\n -30-\n\freplaced it with presidential nomination and appointment \"by and\n\nwith the advice and consent of the Senate.\" Id. at 53.\n\n More difficult to explain is United States v. Heinszen,\n\n206 U.S. 370, 384-85 (1907). The actual holding in Heinszen\n\nsustained tariffs on goods to the Philippines where the tariffs\n\nwere imposed first by the President and then thereafter expressly\n\nratified by Congress. In sustaining those tariffs, the Court\n\nstated that Congress could have delegated the power to impose the\n\ntariffs to the President beforehand, citing United States v. Dorr,\n\n195 U.S. 138 (1904), a case that simply held that Congress could\n\nprovide for criminal tribunals in the territories without also\n\nproviding for trial by jury. Id. at 149. Heinszen cannot be\n\nexplained as an instance of Congress enabling home rule in a\n\nterritory. Rather, it seems to allow Congress to delegate\n\nlegislative power to the President, citing the territorial context\n\nas a justification. Heinszen, though, has no progeny that might\n\nshed light on how reliable it might serve as an apt analogy in the\n\ncase before us. Moreover, Heinszen concerned a grant of power by\n\nCongress, not a grab for power at the expense of the executive.\n\n For the foregoing reasons, we find in the nondelegation\n\ndoctrine no apt example to justify an exception to the application\n\nof the Appointments Clause within the territories. An exception\n\nfrom the Appointments Clause would alter the balance of power\n\n\n -31-\n\fwithin the federal government itself and would serve no necessary\n\npurpose in the transitioning of territories to states.\n\n Further, the Board points us to Palmore v. United States,\n\n411 U.S. 389 (1973). That case arose out of Congress's exercise\n\nof its plenary powers over the District of Columbia under Article\n\nI, Section 8, Clause 17, powers which are fairly analogous to those\n\nunder Article IV. See John R. Thompson Co., 346 U.S. at 105-09.\n\nThe Court held that Congress could create local courts -- like\n\nstate courts -- that did not satisfy the requirements of\n\nArticle III. Palmore, 411 U.S. at 410. The Board would have us\n\nread Palmore as an instance of Congress's plenary powers over a\n\nterritory trumping the requirements of another structural pillar\n\nof the Constitution. We disagree. The Court explained at length\n\nhow Article III itself did not require that all courts created by\n\nCongress satisfy the selection and tenure requirements of\n\nArticle III. Id. at 407 (\"It is apparent that neither this Court\n\nnor Congress has read the Constitution as requiring every federal\n\nquestion arising under the federal law, or even every criminal\n\nprosecution for violating an Act of Congress, to be tried in an\n\nArt. III court before a judge enjoying lifetime tenure and\n\nprotection against salary reduction.\"). Rather, the requirements\n\nof Article III are applicable to courts \"devoted to matters of\n\nnational concern,\" id. at 408, and that local courts \"primarily\n\n\n -32-\n\f. . . concern[ed] . . . with local law and to serve as a local\n\ncourt system\" created by Congress pursuant to its plenary powers\n\nare simply another example of those courts that did not fit the\n\nArticle III template (like state courts empowered to hear federal\n\ncases, military tribunals, the Court of Private Land Claims, and\n\nconsular courts), id. at 404, 407, 408. In short, Article III was\n\nnot trumped by Congress's creation of local courts pursuant to its\n\nArticle I power. Rather, Article III itself accommodates\n\nexceptions, and the local D.C. court system fits within the range\n\nof those exceptions. That there are courts in other territories\n\nof the same ilk does not alter this analysis. Palmore therefore\n\noffers no firm ground upon which to erect a general Article IV\n\nexception to separation-of-powers stalwarts such as the\n\nAppointments Clause.\n\n Finally, nothing about the \"Insular Cases\"11 casts doubt\n\nover our foregoing analysis. This discredited12 lineage of cases,\n\n\n11 De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States,\n182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901);\nArmstrong v. United States, 182 U.S. 243 (1901); Downes, 182 U.S.\n244; Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392\n(1901).\n12 See, e.g., Christina Duffy Burnett, A Convenient Constitution?:\nExtraterritoriality After Boumediene, 109 Colum. L. Rev. 973, 982\n(2009) (noting the Insular Cases have \"long been reviled\" for\nconcluding that \"the Constitution does not 'follow the flag'\noutside the United States\"); Jamal Greene, The Anticanon, 125 Harv.\nL. Rev. 379, 437 (2011) (criticizing that \"the Insular Cases relied\non Dred Scott as authority for the constitutional relationship\n\n -33-\n\fwhich ushered the unincorporated territories doctrine, hovers like\n\na dark cloud over this case. To our knowledge there is no case\n\neven intimating that if Congress acts pursuant to its authority\n\nunder the Territorial Clause it is excused from conforming with\n\nthe Appointments Clause, whether this be by virtue of the \"Insular\n\nCases\" or otherwise. Nor could there be, for it would amount to\n\nthe emasculation from the Constitution of one of its most important\n\nstructural pillars. We thus have no trouble in concluding that\n\nthe Constitution's structural provisions are not limited by\n\ngeography and follow the United States into its unincorporated\n\n\n\nbetween Congress and acquired territories\"); Andrew Kent,\nBoumediene, Munaf, and the Supreme Court's Misreading of the\nInsular Cases, 97 Iowa L. Rev. 101 (2011); Charles E.\nLittlefield, The Insular Cases, 15 Harv. L. Rev. 169, 170 (1901)\n(\"The Insular Cases, in the manner in which the results were\nreached, the incongruity of the results, and the variety of\ninconsistent views expressed by the different members of the court,\nare, I believe, without a parallel in our judicial history.\");\nGerald L. Neuman, Anomalous Zones, 48 Stan. L. Rev. 1197, 1221\n(1996) (observing that \"the colonialism authorized in\nthe Insular Cases . . . was not justified by either peculiar\nnecessity or consent\"); Efrén Rivera Ramos, The Legal Construction\nof American Colonialism: The Insular Cases (1901-1922), 65 Rev.\nJur. U.P.R. 225 (1996); Juan R. Torruella, The Insular Cases: The\nEstablishment of a Regime of Political Apartheid, 29 U. Pa. J.\nInt'l L. 283 (2007); Adriel I. Cepeda Derieux, Note, A Most Insular\nMinority: Reconsidering Judicial Deference to Unequal Treatment in\nLight of Puerto Rico's Political Process Failure, 110 Colum. L.\nRev. 797 (2010); Lisa María Pérez, Note, Citizenship Denied: The\nInsular Cases and the Fourteenth Amendment, 94 Va. L. Rev. 1029\n(2008); see also José A. Cabranes, Puerto Rico: Colonialism as\nConstitutional Doctrine, 100 Harv. L. Rev. 450 (1986) (reviewing\nJuan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine\nof Separate and Unequal (1985)).\n\n -34-\n\fterritories. See Downes, 182 U.S. at 277 (Brown, J.) (noting that\n\n\"prohibitions [going] to the very root of the power of Congress to\n\nact at all, irrespective of time or place\" are operative in the\n\nunincorporated territories).\n\n Notwithstanding this doctrine, appellant UTIER asks us\n\nto go one step further and reverse the \"Insular Cases.\" Although\n\nthere is a lack of enthusiasm for the perdurance of these cases,13\n\nwhich have been regarded as a \"relic from a different era,\" Reid,\n\n354 U.S. at 12, and which Justice Frankfurter described as\n\n\"historically and juridically, an episode of the dead past about\n\nas unrelated to the world of today as the one-hoss shay is to the\n\nlatest jet airplane,\" Reid v. Covert 351 U.S. 487, 492\n\n(1956)(Frankfurter, J., reserving judgment), we cannot be induced\n\nto engage in an ultra vires act merely by siren songs. Not only\n\ndo we lack the authority to meet UTIER's request, but even if we\n\nwere writing on a clean slate, we would be required to stay our\n\nhand when dealing with constitutional litigation if other avenues\n\nof decision were available, and we believe there are in this case.\n\n In this respect, we are aided again by the Supreme\n\nCourt's decision in Reid, which although refusing to reverse the\n\n\"Insular Cases\" outright, provides in its plurality opinion\n\n\n\n13 See supra note 12.\n\n\n -35-\n\finstructive language that outlines the appropriate course we ought\n\nto pursue in the instant appeal:\n\n The \"Insular Cases\" can be distinguished from the\n present cases in that they involved the power of\n Congress to provide rules and regulations to govern\n temporarily territories with wholly dissimilar\n traditions and institutions whereas here the basis\n for governmental power is American citizenship. . . .\n [I]t is our judgment that neither the cases nor their\n reasoning should be given any further expansion.\n\nReid, 354 U.S. at 14 (plurality opinion) (emphasis added); see\n\nalso Boumediene v. Bush, 553 U.S. 723, 765 (2008) (\"Our basic\n\ncharter cannot be contracted away . . . . The Constitution grants\n\nCongress and the President the power to acquire, dispose of, and\n\ngovern territory, not the power to decide when and where its terms\n\napply.\").\n\n The only course, therefore, which we are allowed in light\n\nof Reid is to not further expand the reach of the \"Insular Cases.\"\n\nAccordingly, we conclude that the Territorial Clause and the\n\n\"Insular Cases\" do not impede the application of the Appointments\n\nClause in an unincorporated territory, assuming all other\n\nrequirements of that provision are duly met.\n\n B. Board Members Are \"Officers of the United States\"\n Subject to the Appointments Clause\n\n We must now determine whether the Board Members qualify\n\nwithin the rubric of \"Officers of the United States,\" the\n\nAppointments Clause's job description that marks the entry point\n\n\n -36-\n\ffor its coverage. The district court determined that the Board\n\nMembers do not fall under such a rubric. We disagree.\n\n We begin our analysis by turning to a triad of Supreme\n\nCourt decisions: Lucia v. SEC, 138 S. Ct. 2044 (2018); Freytag,\n\n501 U.S. 868; and Buckley v. Valeo, 424 U.S. 1 (1976). From these\n\ncases, we gather that the following \"test\" must be met for an\n\nappointee to qualify as an \"Officer of the United States\" subject\n\nto the Appointments Clause: (1) the appointee occupies a\n\n\"continuing\" position established by federal law; (2) the\n\nappointee \"exercis[es] significant authority\"; and (3) the\n\nsignificant authority is exercised \"pursuant to the laws of the\n\nUnited States.\" See Lucia, 138 S. Ct. at 2050-51; Freytag, 501\n\nU.S. at 881; Buckley, 424 U.S. at 126. In our view, the Board\n\nMembers readily meet these requirements.\n\n First, Board Members occupy \"continuing positions\" under\n\na federal law since PROMESA provides for their appointment to an\n\ninitial term of three years and they can thereafter be reappointed\n\nand serve until a successor takes office. 48 U.S.C. § 2121(e)(5)\n\n(A), (C)-(D). The continuity of the Board Members' position is\n\nfortified by the provision that only the President can remove them\n\nfrom office and then only for cause. Id. § 2121(e)(5)(B). In\n\nfact, the Board Members' term in office could well extend beyond\n\nthree years, as PROMESA stipulates that the Board will continue in\n\n\n -37-\n\foperation until it certifies that the Commonwealth government has\n\nmet various fiscal objectives \"for at least 4 consecutive fiscal\n\nyears.\" Id. § 2149(2).\n\n Second, the Board Members plainly exercise \"significant\n\nauthority.\" For example, PROMESA empowers the Board Members to\n\ninitiate and prosecute the largest bankruptcy in the history of\n\nthe United States municipal bond market, see Yasmeen Serhan, Puerto\n\nRico Files for Bankruptcy, The Atlantic (May 3, 2017),\n\nhttps://www.theatlantic.com/news/archive/2017/05/puerto-rico-\n\nfiles-for-bankruptcy/525258/, with the bankruptcy power being a\n\nquintessential federal subject matter, see U.S. Const. art. I,\n\n§ 8, cl. 4 (\"The Congress shall have Power . . . [t]o establish\n\nuniform Laws on the subject of Bankruptcies throughout the United\n\nStates.\"). The Supreme Court recently reminded the Commonwealth\n\ngovernment of the bankruptcy power's exclusive federal nature in\n\nFranklin Cal. Tax-Free Trust, 136 S. Ct. at 1938.\n\n The Board Members' federal authority includes the power\n\nto veto, rescind, or revise Commonwealth laws and regulations that\n\nit deems inconsistent with the provisions of PROMESA or the fiscal\n\nplans developed pursuant to it. See 48 U.S.C. § 2144 (\"Review of\n\nactivities to ensure compliance with fiscal plan.\"). Likewise,\n\nthe Board showcases what can be construed as nothing but its\n\nsignificant authority when it rejects the budget of the\n\n\n -38-\n\fCommonwealth or one of its instrumentalities, see id. § 2143\n\n(\"Effect of finding of noncompliance with budget\"); when it rules\n\non the validity of a fiscal plan proposed by the Commonwealth, id.\n\n§ 2141(c)(3); when it issues its own fiscal plan if it rejects the\n\nCommonwealth's proposed plan, id. § 2141(d)(2) (authorizing the\n\nBoard to develop a \"Revised Fiscal Plan\"); and when it exercises\n\nits sole discretion to file a plan of adjustment for Commonwealth\n\ndebt, id. § 2172(a) (\"Only the Oversight Board . . . may file a\n\nplan of adjustment of the debts of the debtor.\"). The Board can\n\nonly employ these significant powers because a federal law so\n\nprovides.\n\n Moreover, Board Members' investigatory and enforcement\n\npowers, as carried out collectively by way of the Board, exceed or\n\nare at least equal to those of the judicial officers the Supreme\n\nCourt found to be \"Officers of the United States\" in Lucia. See\n\n138 S. Ct. at 2053. There, the Supreme Court held that\n\nadministrative law judges are \"Officers of the United States,\" in\n\npart, because they can receive evidence at hearings and administer\n\noaths. Id. PROMESA grants the Board Members the same right and\n\nmore. See 48 U.S.C. § 2124(a); id. § 2124(b) (\"Any member . . .\n\nof the Oversight Board may, if authorized by the Oversight Board,\n\ntake any action that the Oversight Board is authorized to take by\n\nthis section.\"); id. § 2124(c) (\"Obtaining official data\"); id.\n\n\n -39-\n\f§ 2124(f) (\"Subpoena power\"). In short, the Board Members enjoy\n\n\"significant discretion\" as they carry out \"important functions,\"\n\nFreytag, 501 U.S. at 881, under a federal law -- qualities that\n\nthe Supreme Court has considered for decades as the birthmark of\n\nfederal officers who are subject to the Appointments Clause.\n\n Third, the Board Members' authority is exercised\n\n\"pursuant to the laws of the United States.\" The Board Members\n\ntrace their authority directly and exclusively to a federal law,\n\nPROMESA. That federal law provides both their authority and their\n\nduties. Essentially everything they do is pursuant to federal law\n\nunder which the adequacy of their performance is judged by their\n\nfederal master. And this federal master serves in the seat of\n\nfederal power, not San Juan. The Board Members are, in short,\n\nmore like Roman proconsuls picked in Rome to enforce Roman law and\n\noversee territorial leaders than they are like the locally selected\n\nleaders that Rome allowed to continue exercising some authority.\n\nSee, e.g., Louis J. Sirico, Jr., The Federalist and the Lessons of\n\nRome, 75 Miss. L.J. 431, 484 (2006); Dávila Asks House for Reily\n\nInquiry, N.Y. Times (Apr. 5, 1922), https://timesmachine.nytimes.\n\ncom/timesmachine/1922/04/05/112681107.pdf. (comparing the then-\n\nappointed Governor of Puerto Rico to a Roman proconsul)\n\n The United States makes two arguments in support of the\n\ndistrict court's opinion and PROMESA's current appointments\n\n\n -40-\n\fprotocol that warrant our direct response at this point. First,\n\nthe United States argues that historical precedent suggests the\n\ninapplicability of the Appointments Clause to the territories.\n\nSecond, the United States contends that if we find for appellants,\n\nsuch a ruling will invalidate the present-day democratically\n\nelected local governments of Puerto Rico and the other\n\nunincorporated territories because the officers of such\n\ngovernments took office without the Senate's advice and consent.\n\nWe reject each argument in turn.\n\n The relevant historical precedents of which we are aware\n\nlead us to a different conclusion than that claimed by the United\n\nStates. Excepting the short period during which Puerto Rico was\n\nunder military administration following the Spanish-American War,\n\nthe major federal appointments to Puerto Rico's civil government\n\nthroughout the first half of the 20th century all complied with\n\nthe Appointments Clause.\n\n Beginning in 1900 with the Foraker Act, the Governor of\n\nPuerto Rico was to be nominated by the President and confirmed by\n\nthe Senate to a term of four years \"unless sooner removed by the\n\nPresident.\" An Act temporarily to provide revenues and a civil\n\ngovernment for Porto Rico, ch. 191, 31 Stat. 77, 81 (1900). The\n\nForaker Act also mandated presidential nomination and Senate\n\nconfirmation of the members of Puerto Rico's \"Executive Council\"\n\n\n -41-\n\f(which assumed the dual role of executive cabinet and upper chamber\n\nof the territorial legislature). Id. The Executive Council\n\nconsisted of a secretary, an attorney general, a treasurer, an\n\nauditor, a commissioner of the interior, a commissioner of\n\neducation, and five other persons \"of good repute.\" Id. In\n\naddition, the Foraker Act also subjected the justices of the Puerto\n\nRico Supreme Court, along with the marshal and judge of the\n\nterritorial U.S. District Court for the District of \"Porto\" Rico,\n\nto the strictures of the Appointments Clause. Id. Even the three\n\nmembers of a commission established to compile and revise the laws\n\nof \"Porto\" Rico were made subject to the Appointments Clause. Id.\n\n The Foraker Act regime lasted until 1917, when Congress\n\npassed the Jones-Shafroth Act. See An Act to provide a civil\n\ngovernment for Porto Rico, ch. 145, 39 Stat. 951 (1917). Here\n\nagain, Congress provided for all key appointments by Washington to\n\nPuerto Rico's territorial government to meet the Appointments\n\nClause: the governor, attorney general, commissioner of education,\n\nsupreme court justices, district attorney, U.S. marshal, and U.S.\n\nterritorial district judge were to be appointed by the President\n\nwith the advice and consent of the Senate. Id. In sum, between\n\n1900 and 1947 -- the last time the Island had a federally-selected\n\nGovernor -- each of the presidentially appointed Governors of\n\n\n\n\n -42-\n\fPuerto Rico acquired their office after receiving the Senate's\n\nblessing.14\n\n As the United States would have it, Congress's\n\nrequirement of Senate confirmation for presidential nominees in\n\nall of the aforementioned contexts was mere voluntary legislative\n\nsurplusage. This position, however, directly contravenes the\n\npublished opinions of the United States' own Office of Legal\n\nCounsel issued as recently as 2007. See \"Officers of the United\n\nStates Within the Meaning of the Appointments Clause,\" 31 Op.\n\nO.L.C. 73, 122 (2007) (\"[A]n individual who will occupy a position\n\nto which has been delegated by legal authority a portion of the\n\nsovereign powers of the federal government, which is 'continuing,'\n\nmust be appointed pursuant to the Appointments Clause.\"); see also\n\nJennifer L. Mascott, Who Are \"Officers of the United States\", 70\n\nStan. L. Rev. 443, 564 (2018) (\"Extensive evidence suggests that\n\n\n\n14 The early appointments to high-level office in the territorial\ngovernments of the Philippines, Guam, and the Virgin Islands also\nconformed with the Appointments Clause. See Organic Act of Guam\nof 1950, § 6, 64 Stat. 512 (1950) (providing that the Governor of\nGuam \"shall be appointed by the President, by and with the advice\nand consent of the Senate of the United States\"); Organic Act of\nVirgin Islands, § 20, 49 Stat. 1807 (1936) (providing for the\npresidential nomination and Senate confirmation of the Governor,\nwho will then be under supervision of the Secretary of the\nInterior). Even the Panama Canal Zone, during its period under\nUnited States control, had a Governor appointed by the President\n\"by and with the advice of the Senate.\" See Panama Canal Act, 37\nStat. 560 (1912).\n\n\n -43-\n\fthe original public meaning of 'officer' in Article II includes\n\nall federal officials with responsibility for an ongoing statutory\n\nduty.\"). At a minimum, the United States' posture runs head\n\nagainst the sound principle of legislative interpretation\n\nbordering on dogma that \"'[l]ong settled and established practice\n\nis a consideration of great weight in proper interpretation of\n\nconstitutional provisions' regulating the relationship between\n\nCongress and the President.\" NLRB v. Noel Canning, 134 S. Ct.\n\n2550, 2559 (2014) (citing The Pocket Veto Case, 279 U.S. 655, 689\n\n(1929)). Furthermore, the United States fails to support its\n\nassertion with legislative history or other evidence establishing\n\nthat Congress's largely consistent adherence to Appointments\n\nClause procedures in appointing territorial officials was\n\ngratuitous. Lacking such an explanation, we believe it is more\n\nprobable that Congress was simply complying with what the\n\nConstitution requires. Furthermore, that largely consistent\n\ncompliance with Appointment Clause procedures in hundreds if not\n\nthousands of instances over two centuries belies any claim that\n\nadherence to those procedures impedes Congress's exercise of its\n\nplenary powers within the territories.\n\n The United States, as well as the Board, also point to\n\nthe manner in which Congress has for centuries allowed territories\n\nto elect territorial officials, including for example the governor\n\n\n -44-\n\fof Puerto Rico since 1947. See An Act to amend the Organic Act\n\nof Puerto Rico, ch. 490, 61 Stat. 770 (1947). Congress created\n\nmany of these territorial positions and they were filled not\n\nthrough presidential nomination and Senate confirmation, but\n\nrather by elections within the territory. The Board's basic point\n\n(and the United States' basic point as well) is this: If we find\n\nthat the Board Members must be selected by presidential nomination\n\nand Senate confirmation, then that would mean that, for example,\n\nall elected territorial governors and legislators have been\n\nselected in an unconstitutional manner.\n\n We disagree. The elected officials to which the Board\n\nand the United States point -- even at the highest levels -- are\n\nnot federal officers. They do not \"exercise significant authority\n\npursuant to the laws of the United States.\" See Lucia, 138 S. Ct.\n\nat 2051; Freytag, 501 U.S. at 881; Buckley, 424 U.S. at 126; see\n\nalso United States v. Germaine, 99 U.S. 508, 511-12 (1878).\n\nRather, they exercise authority pursuant to the laws of the\n\nterritory. Thus, in Puerto Rico for example, the Governor is\n\nelected by the citizens of Puerto Rico, his position and power are\n\nproducts of the Commonwealth's Constitution, see Puerto Rico\n\nConst. art. IV, and he takes an oath similar to that taken by the\n\ngovernor of a state, id. § 16; see also, e.g., N.Y. Const.\n\n\n\n\n -45-\n\fart. XIII, § 1; Ala. Const. art. XVI, § 279; N.H. Const. pt. II,\n\nart. 84.\n\n It is true that the Commonwealth laws are themselves the\n\nproduct of authority Congress has delegated by statute. See\n\nPuerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1875 (2016). So\n\nthe elected Governor's power ultimately depends on the\n\ncontinuation of a federal grant. But that fact alone does not\n\nmake the laws of Puerto Rico the laws of the United States, else\n\nevery claim brought under Puerto Rico's laws would pose a federal\n\nquestion. See Viqueira v. First Bank, 140 F.3d 12, 19 (1st Cir.\n\n1998) (\"[T]he plaintiffs' complaint alleges manifold claims under\n\nPuerto Rico law, but it fails to assert any claim arising under\n\nfederal law. Accordingly, no jurisdiction lies under 28 U.S.C.\n\n§ 1331.\"); Everlasting Dev. Corp. v. Sol Luis Descartes, 192 F.2d\n\n1, 6 (1st Cir. 1951) (\"Of course, in so far as the controversy\n\nrelates to the construction of an insular [Puerto Rico] tax\n\nexemption statute, that is not a federal question.\").\n\n C. The Board Members are Principal Officers of the United\n States\n\n Having concluded that the Board Members are indeed\n\nUnited States officers, we now turn to the specific means by which\n\nthey must be appointed pursuant to the Appointments Clause. If\n\nthe officer is a \"principal\" officer, the only constitutional\n\nmethod of appointment is by the President, by and with the advice\n\n -46-\n\fand consent of the Senate. U.S. Const. Art. II, § 2, cl. 2;\n\nEdmond, 520 U.S. at 659. But when an officer is \"inferior,\"\n\nCongress may choose to vest the appointment in the President alone,\n\nthe courts, or a department head. Edmond, 520 U.S. at 660; U.S.\n\nConst. Art. II, § 2, cl. 2. And the Board argues (but we do not\n\ndecide) that the President appointed the Board Members\n\nnotwithstanding the restricted choice from congressional lists.\n\n In Morrison v. Olson, the Supreme Court held that an\n\nindependent counsel was an \"inferior\" officer because she was\n\nsubject to removal by the attorney general and because she had\n\nlimited duties, jurisdiction, and tenure, among other factors.\n\n487 U.S. 654, 671-672 (1988). More than a decade later, the Court\n\nheld that an \"inferior\" officer was one \"whose work is directed\n\nand supervised at some level by others who were appointed by\n\nPresidential nomination with the advice and consent of the Senate.\"\n\nEdmond, 520 U.S. at 663. Our circuit later squared the two cases\n\nby holding that Edmond's supervision test was sufficient, but not\n\nnecessary.15 See United States v. Hilario, 218 F.3d 19, 25 (1st\n\n\n15 There has been long-lasting confusion as to whether Morrison\nis still good law. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947\n(2017) (Thomas, J., concurring) (\"Although we did not explicitly\noverrule Morrison in Edmond, it is difficult to see how Morrison's\nnebulous approach survived our opinion in Edmond.\"); Akhil Reed\nAmar, Intratextualism, 112 Harv. L. Rev. 747, 810, 811 (1999)\n(arguing that Morrison provided \"a doctrinal test good for one day\nonly\" and that in Edmond the Supreme Court \"apparently abandoned\nMorrison's ad hoc test\"); but see In re Grand Jury Investigation,\n\n -47-\n\fCir. 2000). Therefore, inferior officers are those who are\n\ndirected and supervised by a presidential appointee; otherwise,\n\nthey \"might still be considered inferior officers if the nature of\n\ntheir work suggests sufficient limitations of responsibility and\n\nauthority.\" Id.\n\n The Board Members clearly satisfy the Edmond test. They\n\nare answerable to and removable only by the President and are not\n\ndirected or supervised by others who were appointed by the\n\nPresident with Senate confirmation. 48 U.S.C. § 2121(e)(5)(B);\n\nEdmond, 520 U.S. at 663. Considering the additional Morrison\n\nfactors does not change the calculus. Though the Board Members'\n\ntenure \"is 'temporary' in the sense that [they are] appointed\n\nessentially to accomplish a single task, and when that task is\n\nover the [Board] is terminated,\" Morrison, 487 U.S. at 672, the\n\nBoard's vast duties and jurisdiction are insufficiently limited.\n\nSignificantly, while the independent counsel in Morrison was\n\n\n315 F. Supp. 3d 602, 640 (D.D.C. 2018) (considering the Morrison\nfactors in determining that special counsel is an inferior officer\nof the United States). More recently, in Free Enter. Fund v.\nPublic Co. Accounting Oversight Bd., the Supreme Court held that\nmembers of the Public Company Accounting Oversight Board, who were\nsupervised by the SEC, were inferior officers. 561 U.S. 477, 510\n(2010). In so doing, the Court cited Edmond for the proposition\nthat \"[w]hether one is an 'inferior' officer depends on whether he\nhas a superior.\" Id. However, the Edmond language has already\nbeen analyzed by this court and reconciled with Morrison. Because\nFree Enterprise does not explicitly overrule Morrison, it does not\naffect our precedent.\n\n\n -48-\n\funable to \"formulate policy for the Government or the Executive\n\nBranch,\" PROMESA explicitly grants such authority. See 48 U.S.C.\n\n§ 2144(b)(2). And whereas the jurisdiction of the independent\n\ncounsel was limited, Morrison, 487 U.S. at 672, the Board's\n\nauthority spans across the economy of Puerto Rico -- a territory\n\nwith a population of nearly 3.5 million -- overpowering that of\n\nthe Commonwealth's own elected officials. Under Edmond and\n\nMorrison, the Board Members are \"principal\" United States\n\nofficers. See Hilario, 218 F.3d at 25. They therefore should\n\nhave been appointed by the President, by and with the advice and\n\nconsent of the Senate. Art. II, § 2, cl.2.\n\n THE REMEDY\n\n Having concluded that the process PROMESA provides for\n\nthe appointment of Board Members is unconstitutional, we are left\n\nto determine the relief to which appellants are entitled. Both\n\nAurelius and the UTIER ask that we order dismissal of the Title\n\nIII petitions that the Board filed to commence the restructuring\n\nof Commonwealth debt. In doing so, appellants suggest that we\n\nought to deem invalid all of the Board's actions until today and\n\nthat this case does not warrant application of the de facto officer\n\ndoctrine. It would then be on a constitutionally reconstituted\n\nBoard, they say, to ratify or not ratify the unconstitutional\n\nBoard's actions. Appellants also request that we sever from 48\n\n\n -49-\n\fU.S.C. § 2121(e) the language that authorizes the Board Members'\n\nappointment without Senate confirmation.\n\n There is no question but that in fashioning a remedy to\n\ncorrect the constitutional violation we have found it is unlikely\n\nthat a perfect solution is available. In choosing among potential\n\noptions, we ought to reduce the disruption that our decision may\n\ncause. But we are readily aided by several factors in this\n\nrespect.\n\n First, PROMESA itself contains an express severability\n\nclause, stating as follows:\n\n Except as provided in subsection (b) [regarding\n uniformity of similarly situated territories], if any\n provision of this chapter or the application thereof\n to any person or circumstance is held invalid, the\n remainder of this chapter, or the application of that\n provision to persons or circumstances other than those\n as to which it is held invalid, is not affected\n thereby, provided that subchapter III is not severable\n from subchapters I and II, and subchapters I and II\n are not severable from subchapter III.\n\n48 U.S.C. § 2102.\n\n Such a clause \"creates a presumption that Congress did\n\nnot intend the validity of the statute in question to depend on\n\nthe validity of [a] constitutionally offensive provision.\" Alaska\n\nAirlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).\n\n Severability in this instance is especially appropriate\n\nbecause Congress, within PROMESA, has already provided an\n\nalternative appointments mechanism, at least as to six of the Board\n\n -50-\n\fMembers. PROMESA directs that if the mechanism we found\n\nunconstitutional is not employed, \"[w]ith respect to the\n\nappointment of a Board member . . . such an appointment shall be\n\nby and with the advice and consent of the Senate, unless the\n\nPresident appoints an individual from a list, . . . in which case\n\nno Senate confirmation is required.\" 48 U.S.C. § 2121(e)(2)(E)\n\n(emphasis added).\n\n Accordingly, we hold that the present provisions\n\nallowing the appointment of Board Members in a manner other than\n\nby presidential nomination followed by the Senate's confirmation\n\nare invalid and severable. We do not hold invalid the remainder\n\nof the Board membership provisions, including those providing the\n\nqualifications for office and for appointment by the President\n\nwith the advice and consent of the Senate.\n\n Second, we reject appellants' invitation to dismiss the\n\nTitle III petitions and cast a specter of invalidity over all of\n\nthe Board's actions until the present day. To the contrary, we\n\nfind that application of the de facto officer doctrine is\n\nespecially appropriate in this case.\n\n An ancient tool of equity, the de facto officer doctrine\n\n\"confers validity upon acts performed by a person acting under the\n\ncolor of official title even though it is later discovered that\n\nthe legality of that person's appointment . . . to office is\n\n\n -51-\n\fdeficient.\" Ryder v. United States, 515 U.S. 179, 180 (1995)\n\n(citing Norton v. Shelby Cnty., 118 U.S. 425, 440 (1886)); see\n\nalso Note, The De Facto Officer Doctrine, 63 Colum. L. Rev. 909,\n\n909 n.1 (1963) (\"The first reported case to discuss the concept of\n\nde facto authority was The Abbe of Fountaine, 9 Hen. VI, at 32(3)\n\n(1431).\"). A de facto officer is \"one whose title is not good in\n\nlaw, but who is in fact in the unobstructed possession of an office\n\nand discharging its duties in full view of the public, in such\n\nmanner and under such circumstances as not to present the\n\nappearance of being an intruder or usurper.\" Waite v. Santa Cruz,\n\n184 U.S. 302, 323 (1902). Our sister court for the D.C. Circuit\n\nhas described the doctrine as \"protect[ing] citizens' reliance on\n\npast government actions and the government's ability to take\n\neffective and final action.\" Andrade v. Lauer, 729 F.2d 1475,\n\n1499 (D.C. Cir. 1984).\n\n Here, the Board Members were acting with the color of\n\nauthority -- namely, PROMESA -- when, as an entity, they decided\n\nto file the Title III petitions on the Commonwealth's behalf, a\n\npower squarely within their lawful toolkit. And there is no\n\nindication but that the Board Members acted in good faith in moving\n\nto initiate such proceedings. See Leary v. United States, 268\n\nF.2d 623, 627 (9th Cir. 1959). Moreover, the Board Members' titles\n\nto office were never in question until our resolution of this\n\n\n -52-\n\fappeal.\n\n Other considerations further counsel for our application\n\nof the de facto officer doctrine. We fear that awarding to\n\nappellants the full extent of their requested relief will have\n\nnegative consequences for the many, if not thousands, of innocent\n\nthird parties who have relied on the Board's actions until now.\n\nIn addition, a summary invalidation of everything the Board has\n\ndone since 2016 will likely introduce further delay into a historic\n\ndebt restructuring process that was already turned upside down\n\nonce before by the ravage of the hurricanes that affected Puerto\n\nRico in September 2017. See Stephanie Gleason, Puerto Rico's\n\nBankruptcy Delayed, Moved to New York Following Hurricane María,\n\nThe Street (Sept. 26, 2017), https://www.thestreet.com/story/\n\n14320965/1/puerto-rico-s-bankruptcy-delayed-moved-to-new-york-\n\nfollowing-hurricane-maria.html. At a minimum, dismissing the\n\nTitle III petitions and nullifying the Board's years of work will\n\ncancel out any progress made towards PROMESA's aim of helping\n\nPuerto Rico \"achieve fiscal responsibility and access to the\n\ncapital markets.\" 48 U.S.C. § 2121(a).\n\n We therefore decline to order dismissal of the Board's\n\nTitle III petitions. Our ruling, as such, does not eliminate any\n\notherwise valid actions of the Board prior to the issuance of our\n\nmandate in this case. In so doing, we follow the Supreme Court's\n\n\n -53-\n\fexact approach in Buckley, 424 U.S. at 1, which involved an\n\nAppointments Clause challenge to the then recently formed Federal\n\nElection Commission. Although the Court held that the Commission\n\nwas in fact constituted in violation of the Appointments Clause,\n\nid. at 140, it nonetheless found that such a constitutional\n\ninfirmity did \"not affect the validity of the Commission's . . .\n\npast acts,\" id. at 142. We conclude the same here and find that\n\nseverance is the appropriate relief to which appellants are\n\nentitled after they successfully and \"timely challenge[d] . . .\n\nthe constitutional validity of\" the Board Members' appointment.\n\nRyder, 515 U.S. at 182-83.\n\n Finally, our mandate in these appeals shall not issue\n\nfor 90 days, so as to allow the President and the Senate to validate\n\nthe currently defective appointments or reconstitute the Board in\n\naccordance with the Appointments Clause. Cf. Weinberger v.\n\nRomero-Barceló, 456 U.S. 305, 312-313 (1982). During the 90-day\n\nstay period, the Board may continue to operate as until now.\n\n CONCLUSION\n\n In sum, we hold that the Board Members (other than the\n\nex officio Member) must be, and were not, appointed in compliance\n\nwith the Appointments Clause. Accordingly, the district court's\n\nconclusion to the contrary is reversed. We direct the district\n\ncourt to enter a declaratory judgment to the effect that PROMESA's\n\n\n -54-\n\fprotocol for the appointment of Board Members is unconstitutional\n\nand must be severed. We affirm, however, the district court's\n\ndenial of appellants' motions to dismiss the Title III\n\nproceedings. Each party shall bear its own costs.\n\n So ordered.\n\n Reversed in part and Affirmed in part.\n\n\n\n\n -55-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368575/", "author_raw": "TORRUELLA, Circuit Judge"}]} | TORRUELLA | THOMPSON | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591322/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: AURELIUS INVESTMENT, LLC, Et Al., Appellants, v. Commonwealth of PUERTO RICO, Et Al., Appellees. Assured Guaranty Corporation, Et Al., Appellants, v. Financial Oversight and Management Board, Et Al., Appellees. Unión De Trabajadores De La Industria Eléctrica Y Riego (Utier), Appellant, v. Puerto Rico Electric Power Authority, Et Al., Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNos. 18-1671, 18-1746, 18-1787\n\n AURELIUS INVESTMENT, LLC, ET AL.,\n Appellants,\n\n v.\n\n COMMONWEALTH OF PUERTO RICO, ET AL.,\n Appellees.\n ____________________\n\n ASSURED GUARANTY CORPORATION, ET AL.,\n Appellants,\n\n v.\n\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD, ET AL.,\n Appellees.\n ____________________\n\n UNIÓN DE TRABAJADORES DE LA INDUSTRIA ELÉCTRICA Y RIEGO (UTIER),\n Appellant,\n\n v.\n\n PUERTO RICO ELECTRIC POWER AUTHORITY, ET AL.,\n Appellees.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Laura Taylor Swain,* U.S. District Judge]\n\n\t\n\n\n\n\n* Of the Southern District of New York, sitting by designation.\n\f Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n Theodore B. Olson, with whom Matthew D. McGill, Helgi C.\nWalker, Lucas C. Townsend, Lochlan F. Shelfer, Jeremy M.\nChristiansen, and Gibson, Dunn & Crutcher LLP were on brief, for\nappellants Aurelius Investment, LLC and Assured Guaranty\nCorporation.\n Rolando Emmanuelli-Jiménez, with whom Jessica E. Méndez-\nColberg, Yasmín Colón-Colón, and Bufete Emmanuelli, C.S.P. were on\nbrief, for appellant UTIER.\n Donald B. Verrilli, Jr., with whom Ginger D. Anders, Chad I.\nGolder, Sarah G. Boyce, Rachel G. Miller-Ziegler, Munger, Tolles\n& Olson LLP, Martin J. Bienenstock, Stephen L. Ratner, Timothy W.\nMungovan, Mark D. Harris, Chantel L. Febus, Proskauer Rose LLP,\nHermann D. Bauer, Ubaldo M. Fernández, and O'Neill & Borges LLC\nwere on brief, for appellee The Financial Oversight and Management\nBoard for Puerto Rico.\nWalter Dellinger, Peter Friedman, John J. Rapisardi, William J.\nSushon, and O'Melveny & Myers LLP on brief, for The Puerto Rico\nFiscal Agency and Financial Advisory Authority.\n Jeffrey B. Wall, with whom Laura E. Myron, Attorney, Appellate\nStaff, Civil Division, U.S. Department of Justice, Joseph H. Hunt,\nAssistant Attorney General, Thomas G. Ward, Deputy Assistant\nAttorney General, Mark R. Freeman, Michael S. Raab, and Michael\nShih, Attorneys, Appellate Staff, Civil Division, were on brief,\nfor appellee the United States.\n José A. Hernández-Mayoral, with whom Rafael Hernández-Colón,\nand Héctor Ferrer-Ríos, were on brief, as amicus curiae, for the\nPopular Democratic Party of Puerto Rico and its President.\n Jorge Martínez-Luciano, with whom Emil Rodríguez-Escudero,\nM.L. & R.E. Law Firm, Aníbal Acevedo-Vilá and Law Office Aníbal\nAcevedo-Vilá were on brief, as amici curiae.\n Luc A. Despins and Paul Hastings LLP on brief, for The\nOfficial Committee of Unsecured Creditors of All Puerto Rico Title\nIII Debtors.\n Ian Heath Gershengorn, Lindsay C. Harrison, William K.\nDreher, Catherine Steege, Melissa Root, Robert Gordon, Richard\nLevin, A.J. Bennazar-Zequeira, and Bennazar, García, & Milián,\nC.S.P. on brief, for The Official Committee of Retired Employees\nof the Commonwealth of Puerto Rico.\n\n\n -2-\t\n\f Charles J. Cooper, Michael W. Kirk, Howard C. Nielson, Jr.,\nJohn D. Ohlendorf, Haley N. Proctor, Cooper & Kirk, PLLC, Rafael\nEscalera, Carlos R. Rivera-Ortiz, Sylvia M. Arizmendi-López de\nVictoria, and Reichard & Escalera on brief, for Creditors-\nAppellees the Cofina Senior Bondholders' Coalition.\n Manuel A. Rodríguez-Banchs, and Matthew S. Blumin, on brief,\nfor appellee American Federal of State, County & Municipal\nEmployees.\n\n\n\n\n February 15, 2019\n\n\n\n\n -3-\n\f TORRUELLA, Circuit Judge. The matter before us arises\n\nfrom the restructuring of Puerto Rico's public debt under the 2016\n\nPuerto Rico Oversight, Management, and Economic Stability Act\n\n(\"PROMESA\"). This time, however, we are not tasked with delving\n\ninto the intricacies of bankruptcy proceedings. Instead, we are\n\nrequired to square off with a single question of constitutional\n\nmagnitude: whether members of the Financial Oversight and\n\nManagement Board created by PROMESA (\"Board Members\") are\n\n\"Officers of the United States\" subject to the U.S. Constitution's\n\nAppointments Clause. Title III of PROMESA authorizes the Board\n\nto initiate debt adjustment proceedings on behalf of the Puerto\n\nRico government, and the Board exercised this authority in May\n\n2017. Appellants seek to dismiss the Title III proceedings,\n\nclaiming the Board lacked authority to initiate them given that\n\nthe Board Members were allegedly appointed in contravention of the\n\nAppointments Clause.\n\n Before we can determine whether the Board Members are\n\nsubject to the Appointments Clause, we must first consider two\n\nantecedent questions that need be answered in sequence, with the\n\nanswer to each deciding whether we proceed to the next item of\n\ninquiry. The first question is whether, as decided by the district\n\ncourt and claimed by appellees, the Territorial Clause displaces\n\nthe Appointments Clause in an unincorporated territory such as\n\n\n -4-\n\fPuerto Rico. If the answer to this first question is \"no,\" our\n\nsecond area of discussion turns to determining whether the Board\n\nMembers are \"Officers of the United States,\" as only officers of\n\nthe federal government fall under the purview of the Appointments\n\nClause. If the answer to this second question is \"yes,\" we must\n\nthen determine whether the Board Members are \"principal\" or\n\n\"inferior\" United States officers, as that classification will\n\ndictate how they must be appointed pursuant to the Appointments\n\nClause. But before we enter fully into these matters, it is\n\nappropriate that we take notice of the developments that led to\n\nthe present appeal.\n\n BACKGROUND\n\n The centerpieces of the present appeals are two\n\nprovisions of the Constitution of the United States. The first\n\nis Article II, Section 2, Clause 2, commonly referred to as the\n\n\"Appointments Clause,\" which establishes that:\n\n [The President] . . . shall nominate, and by and with\n the Advice and Consent of the Senate, shall appoint\n . . . all other Officers of the United States, whose\n Appointments are not herein otherwise provided for,\n and which shall be established by Law: but the\n Congress may by Law vest the Appointment of such\n inferior Officers, as they think proper, in the\n President alone, in the Courts of Law, or in the Heads\n of Departments.\n\nU.S. Const. art. II, § 2, cl. 2.\n\t\n\n\n\n -5-\n\f The second is Article IV, Section 3, Clause 2, or the\n\n\"Territorial Clause,\" providing Congress with the \"power to\n\ndispose of and make all needful Rules and Regulations respecting\n\nthe Territory . . . belonging to the United States.\" U.S. Const.\n\nart. IV, § 3, cl. 2.\n\n A. Puerto Rico's Financial Crisis\n\n The interaction between these two clauses comes into\n\nfocus because of events resulting from the serious economic\n\ndownfall that has ailed the Commonwealth of Puerto Rico since the\n\nturn of the 21st Century, see Center for Puerto Rican Studies,\n\nPuerto Rico in Crisis Timeline, Hunter College (2017),\n\nhttps://centropr.hunter.cuny.edu/sites/default/files/PDF_Publica\n\ntions/Puerto-Rico-Crisis-Timeline-2017.pdf; see generally Juan R.\n\nTorruella, Why Puerto Rico Does Not Need Further Experimentation\n\nwith Its Future: A Reply to the Notion of \"Territorial Federalism\",\n\n131 Harv. L. Rev. F. 65 (2018), and its Governor's declaration in\n\nthe summer of 2015 that the Commonwealth was unable to meet its\n\nestimated $72 billion public debt obligation, see Michael Corkery\n\n& Mary Williams Walsh, Puerto Rico's Governor Says Island's Debts\n\nAre \"Not Payable\", N.Y. Times (June 28, 2015), https://www.nytimes\n\n.com/2015/06/29/business/dealbook/puerto-ricos-governor-says-\n\nislands-debts-are-not-payable.html. This obligation developed,\n\nin substantial part, from the triple tax-exempt bonds issued and\n\n\n -6-\n\fsold to a large variety of individual and institutional investors,\n\nnot only in Puerto Rico but also throughout the United States.1\n\nGiven the unprecedented expansiveness of the default in terms of\n\ntotal debt, the number of creditors affected, and the creditors'\n\ngeographic diversity, it became self-evident that the\n\nCommonwealth's insolvency necessitated a national response from\n\nCongress. Puerto Rico's default was of particular detriment to\n\nthe municipal bond market where Commonwealth bonds are traded and\n\nupon which state and local governments across the United States\n\nrely to finance many of their capital projects. See Nat'l Assoc.\n\nof Bond Lawyers, Tax-Exempt Bonds: Their Importance to the National\n\nEconomy and to State and Local Governments 5 (Sept. 2012),\n\nhttps://www.nabl.org/portals/0/documents/NABL_White_Paper.pdf.\n\n From 1938 until 1984, Puerto Rico was able, like all\n\nother U.S. jurisdictions, to seek the protection of Chapter 9 of\n\nthe U.S. Bankruptcy Code when its municipal instrumentalities ran\n\ninto financial difficulties. See Franklin Cal. Tax-Free Trust v.\n\nPuerto Rico, 805 F.3d 322, 345-50 (1st Cir. 2015) (Torruella, J.,\n\nconcurring). But without any known or documented explanation, in\n\n1984, Congress extirpated from the Bankruptcy Code the\n\n\n1 Since 1917 Congress has authorized exemption of Puerto Rico\nbonds from taxation by the federal, state, and municipal\ngovernments. See An Act to provide a civil government for Porto\nRico, and for other purposes, ch. 145, § 3, 39 Stat. 953 (1917).\n\n\n -7-\n\favailability of this relief for the Island. Id. at 350. In an\n\nattempt to seek self-help, and amidst the Commonwealth's deepening\n\nfinancial crisis, the Puerto Rico Legislature passed its own\n\nmunicipal bankruptcy legislation in 2014. See Puerto Rico Public\n\nCorporation Debt Enforcement and Recovery Act of 2014, 2014 P.R.\n\nLaws Act No. 71; see generally Lorraine S. McGowen, Puerto Rico\n\nAdopts a Debt Recovery Act for Its Public Corporations, 10 Pratt's\n\nJ. Bankr. L. 453 (2014). The Commonwealth's self-help journey,\n\nhowever, was cut short by the Supreme Court in Puerto Rico v.\n\nFranklin Cal. Tax-Free Tr., 136 S. Ct. 1938 (2016), which\n\ninvalidated the Puerto Rico bankruptcy statute. Coincidentally,\n\nthe Supreme Court decided Franklin Cal. on June 13, 2016 -- seven\n\ndays before the following congressional intervention into this\n\nsequence of luckless events.\n\n B. Congress Enacts PROMESA\n\n On June 30, 2016, Congress's next incursion into Puerto\n\nRico's economic fortunes took place in the form of Public Law 114-\n\n187, the Puerto Rico Oversight, Management, and Economic Stability\n\nAct (PROMESA),2 48 U.S.C. § 2101 et seq., which Congress found\n\nnecessary to deal with Puerto Rico's \"fiscal emergency\" and to\n\n\n\n2 Since its proposed enactment this legislation has been labeled\nby the acronym \"PROMESA,\" which in the Spanish language stands for\n\"promise.\"\n\n\n -8-\n\fhelp mitigate the Island's \"severe economic decline.\" See id.\n\n§ 2194(m)(1). Congress identified the Territorial Clause as the\n\nsource of its authority to enact this law. See id. § 2121(b)(2).\n\n To implement PROMESA, Congress created the Financial\n\nOversight and Management Board of Puerto Rico (the \"Board\").\n\nCongress charged the Board with providing independent supervision\n\nand control over Puerto Rico's financial affairs and helping the\n\nIsland \"achieve fiscal responsibility and access to the capital\n\nmarkets.\" Id. § 2121(a). In so proceeding, Congress stipulated\n\nthat the Board was \"an entity [created] within the territorial\n\ngovernment\" of Puerto Rico, id. § 2121(c)(1), which \"shall not be\n\nconsidered to be a department, agency, establishment, or\n\ninstrumentality of the Federal Government,\" id. § 2121(c)(2), and\n\nthat it was to be funded entirely from Commonwealth resources, id.\n\n§ 2127.3\n\n Although PROMESA places the Board \"within\" the Puerto\n\nRico territorial government, Section 108 of PROMESA, which is\n\nlabeled \"Autonomy of Oversight Board,\" id. § 2128, precludes the\n\nPuerto Rico Governor and Legislature from exercising any power or\n\nauthority over the so-called \"territorial entity\" that PROMESA\n\n\n\n3 A new account -- under the Board's exclusive control -- was\nrequired to be established by the Puerto Rico government within\nits Treasury Department to fund Board operations.\n\n\n -9-\n\fcreates. Instead, it subordinates the Puerto Rico territorial\n\ngovernment to the Board, as it unambiguously pronounces that:\n\n (a) . . . Neither the Governor nor the\n Legislature may --\n\n (1) exercise any control, supervision,\n oversight, or review over the . . . Board or\n its activities; or\n\n (2) enact, implement, or enforce any statute,\n resolution, policy, or rule that would impair\n or defeat the purposes of this chapter, as\n determined by the . . . Board.\n\nId. § 2128(a).\n\n PROMESA also provides additional authority and powers to\n\nthe Board with similarly unfettered discretion. For example,\n\nSection 101(d)(1)(A) grants the Board, \"in its sole discretion at\n\nsuch time as the . . . Board determines to be appropriate,\" the\n\ndesignation of \"any territorial instrumentality as a covered\n\nterritorial instrumentality that is subject to the requirements of\n\n[PROMESA].\" Id. § 2121(d)(1)(A). Under Section 101(d)(1)(B),\n\nthe Board, \"in its sole discretion,\" may require the Governor of\n\nPuerto Rico to submit \"such budgets and monthly or quarterly\n\nreports regarding a covered territorial instrumentality as the\n\n. . . Board determines to be necessary . . .\" Id. § 2121(d)(1)(B).\n\nPursuant to Section 101(d)(1)(C), the Board is allowed, \"in its\n\nsole discretion,\" to require separate budgets and reports for\n\ncovered territorial instrumentalities apart from the\n\n\n -10-\n\fCommonwealth's budget, and to require the Governor to develop said\n\nseparate documents. Id. § 2121(d)(1)(C). Per Section 101(d)(1)(D),\n\nthe \"Board may require, in its sole discretion,\" that the Governor\n\n\"include a covered territorial instrumentality in the applicable\n\nTerritory Fiscal Plan.\" Id. § 2121(d)(1)(D). Further, as\n\nprovided in Section 101(d)(1)(E), the Board may, \"in its sole\n\ndiscretion,\" designate \"a covered territorial instrumentality to\n\nbe the subject of [a separate] Instrumentality Fiscal Plan.\" Id.\n\n§ 2121(d)(1)(E). Finally, Section 101(d)(2)(A) bestows upon the\n\nBoard, again \"in its sole discretion, at such time as the . . .\n\nBoard determines to be appropriate,\" the authority to \"exclude any\n\nterritorial instrumentality from the requirements of [PROMESA].\"\n\nId. § 2121(d)(2)(A).\n\n PROMESA also requires the Board to have an office in\n\nPuerto Rico and elsewhere as it deems necessary, and that at any\n\ntime the United States may provide the Board with use of federal\n\nfacilities and equipment on a reimbursable or non-reimbursable\n\nbasis. Id. § 2122. Additionally, Section 103(c) waives the\n\napplication of Puerto Rico procurement laws to the Board, id.\n\n§ 2123(c), while Section 104(c) authorizes the Board to acquire\n\ninformation directly from both the federal and Puerto Rico\n\ngovernments without the usual bureaucratic hurdles, id. § 2124(c).\n\nMoreover, the Board's power to issue and enforce compliance with\n\n\n -11-\n\fsubpoenas is to be carried out in accordance with Puerto Rico law.\n\nId. § 2124(f).4 Finally, PROMESA directs the Board to ensure that\n\nany laws prohibiting public employees from striking or engaging in\n\nlockouts be strictly enforced. Id. § 2124(h).\n\n We thus come to PROMESA's Title III, the central\n\nprovision of this statute, which creates a special bankruptcy\n\nregime allowing the territories and their instrumentalities to\n\nadjust their debt. Id. §§ 2161-77. This new bankruptcy safe\n\nhaven applies to territories more broadly than Chapter 9 applies\n\nto states because it covers not just the subordinate\n\ninstrumentalities of the territory, but also the territory itself.\n\nId. § 2162.\n\n An important provision of PROMESA's bankruptcy regime is\n\nthat the Board serves as the sole representative of Puerto Rico's\n\ngovernment in Title III debtor-related proceedings, id. § 2175(b),\n\nand that the Board is empowered to \"take any action necessary on\n\nbehalf of the debtor\" -- whether the Commonwealth government or\n\nany of its instrumentalities -- \"to prosecute the case of the\n\ndebtor,\" id. § 2175(a).\n\n\t\n\n\n4 We note that 48 U.S.C. § 2124(f)(1) makes reference to the\nPuerto Rico Rules of Civil Procedure of 1979, 32 L.P.R.A. App. III,\neven though those rules were repealed and replaced by the Puerto\nRico Rules of Civil Procedure of 2009, 32 L.P.R.A. App. V.\n\n\n -12-\n\f C. Appointment of Members to PROMESA's Board\n\n PROMESA establishes that the \"Board shall consist of\n\nseven members appointed by the President,\" who must comply with\n\nfederal conflict of interest statutes. Id. § 2121(e)(1)(A).5 The\n\nBoard's membership is divided into six categories, labelled A\n\nthrough F, with one member for Categories A, B, D, E, and F, and\n\ntwo members for Category C. Id. § 2121(e)(1)(B).6 The Governor\n\nof Puerto Rico, or his designee, also serves on the Board, but in\n\nan ex officio, non-voting capacity. Id. § 2121(e)(3). The\n\nBoard's duration is for an indefinite period, at a minimum four\n\nyears and likely more, given the certifications that Section 209\n\nof PROMESA requires.7\n\n\n5 Section 2121(e)(1)(A) of PROMESA cross-references section\n2129(a), which, for its part, incorporates 18 U.S.C. § 208's\ndispositions governing conflicts of interest.\n6 As will be discussed in detail below, the assigned category\naffects a prospective Board member's eligibility requirements and\nappointment procedure.\n7 Section 209 of PROMESA states that the Board shall terminate\nwhen it certifies that:\n\n (1) the applicable territorial government has adequate\n access to short-term and long-term credit markets at\n reasonable interest rates to meet the borrowing needs of\n the territorial government; and\n\n (2) for at least 4 consecutive fiscal years --\n\n (A) the territorial government has developed its\n Budgets in accordance with modified accrual\n accounting standards; and\n\n\n -13-\n\f Pursuant to Section 101(f) of PROMESA, individuals are\n\neligible for appointment to the Board only if they:\n\n (1) ha[ve] knowledge and expertise in finance,\n municipal bond markets, management, law, or the\n organization or operation of business or government;\n and\n\n (2) prior to appointment, [they are] not an officer,\n elected official, or employee of the territorial\n government, a candidate for elected office of the\n territorial government, or a former elected official\n of the territorial government.\n\nId. § 2121(f). In addition, there are certain primary residency\n\nor primary business place requirements that must be met by some of\n\nthe Board Members. Id. § 2121(e)(2)(B)(i), (D) (requiring that\n\nthe Category A Board Member \"maintain a primary residence in the\n\nterritory or have a primary place of business in the territory\").\n\n Of particular importance to our task at hand is\n\nSection 101(e)(2)(A), which outlines the procedure for the\n\nappointment of the Board Members:\n\n (A) The President shall appoint the individual members\n of the . . . Board of which --\n\n (i) the Category A member should be selected from a\n list of individuals submitted by the Speaker of the\n House of Representatives;\n\n (B) the expenditures made by the territorial\n government during each fiscal year did not exceed the\n revenues of the territorial government during that\n year, as determined in accordance with modified\n accrual accounting standards.\n\n48 U.S.C. § 2149.\n\n\n -14-\n\f (ii) the Category B member should be selected from a\n separate, non-overlapping list of individuals\n submitted by the Speaker of the House of\n Representatives;\n\n (iii) the Category C member should be selected from a\n list submitted by the Majority Leader of the Senate;\n\n (iv) the Category D member should be selected from a\n list submitted by the Minority Leader of the House of\n Representatives;\n\n (v) the Category E member should be selected from a\n list submitted by the Minority leader of the Senate;\n and\n\n (vi) the category F member may be selected in the\n President's sole discretion.\n\nId. § 2121(e)(2)(A).\n\n In synthesis, pursuant to this scheme, six of the seven\n\nBoard Members shall be selected by the President from the lists\n\nprovided by House and Senate leadership, with PROMESA allowing the\n\nPresident to select the seventh member at his or her sole\n\ndiscretion. Senatorial advice and consent is not required if the\n\nPresident makes the appointment from one of the aforementioned\n\nlists. Id. § 2121(e)(2)(E). In theory, the statute allows the\n\nPresident to appoint a member to the Board who is not on the lists,\n\nin which case, \"such an appointment shall be by and with the advice\n\nand consent of the Senate.\" Id. Consent by the Senate had to be\n\nobtained by September 1, 2016 so as to allow an off-list\n\nappointment, else the President was required to appoint directly\n\n\n -15-\n\ffrom the lists. And because the Senate was in recess for all but\n\neight business days between enactment of the statute and\n\nSeptember 1, one might conclude that, in practical effect, the\n\nstatute forced the selection of persons on the list.\n\n As was arguably inevitable, on August 31, 2016, the\n\nPresident chose all Category A through E members from the lists\n\nsubmitted by congressional leadership and appointed the Category F\n\nmember at his sole discretion.8\n\n\n8 President Obama Announces the Appointment of Seven Individuals\nto the Financial Oversight and Management Board for Puerto Rico,\nThe White House Off. of the Press Sec'y (Aug. 31, 2016),\nhttps://obamawhitehouse.archives.gov/the-press-office/2016/08/\n31/president-obama-announces-appointment-seven-individuals-\nfinancial. The appointees included Andrew G. Biggs, a resident\nscholar at the American Enterprise Institute, and former holder of\nmultiple high ranking positions in the Social Security\nAdministration; José B. Carrión III, an experienced insurance\nindustry executive from Puerto Rico and the President and Principal\nPartner of HUB International CLC, LLC, which operates therein;\nCarlos M. García, a resident of Puerto Rico, the Chief Executive\nOfficer of BayBoston Managers LLC, Managing Partner of BayBoston\nCapital LP, who formerly served as Senior Executive Vice President\nand board member at Santander Holdings USA, Inc. (2011-2013), among\nother executive posts at Santander entities (1997-2008), and as\nChairman of the Board, President, and CEO of the Government\nDevelopment Bank for Puerto Rico (2009-2011); Arthur J. González,\na Senior Fellow at the New York University School of Law and former\nU.S. Bankruptcy Judge in the Southern District of New York (1995-\n2002); José R. González, CEO and President of the Federal Home\nLoan Bank of New York, which he joined in 2013, former Chief\nExecutive Officer and President of Santander Bancorp (2002-2008),\nand President of Santander Securities Corporation (1996-2001) and\nthe Government Development Bank of Puerto Rico (1986-1989); Ana J.\nMatosantos, President of Matosantos Consulting, former Director of\nthe State of California's Department of Finance (2009-2013) and\nChief Deputy Director for Budgets (2008-2009); and, David A. Skeel\nJr., professor of Corporate Law at the University of Pennsylvania\n\n -16-\n\f It is undisputed that the President did not submit any\n\nof the Board member appointments to the Senate for its advice and\n\nconsent prior to the Board Members assuming the duties of their\n\noffice, or, for that matter, at any other time.\n\n D. Litigation Before the District Court\n\n In May 2017, the Board initiated Title III debt\n\nadjustment proceedings on behalf of the Commonwealth in the U.S.\n\nDistrict Court for the District of Puerto Rico. See Title III\n\nPetition, In re Commonwealth of P.R., Bankruptcy Case No. 17-BK-\n\n3283 (LTS) (D.P.R. May 3, 2017). This was followed by the filing\n\nof several other Title III proceedings on behalf of various\n\nCommonwealth government instrumentalities. See Title III\n\nPetitions in: In re P.R. Sales Tax Fin. Corp. (COFINA), Bankruptcy\n\nCase No. 17-BK-3284 (LTS) (D.P.R. May 5, 2017); In re Emps. Ret.\n\nSys. of the Gov't of the Commonwealth of P.R. (ERS), 17-BK-3566\n\n(LTS) (D.P.R. May 21, 2017); In re P.R. Highways and Transp. Aut.\n\n(HTA); Bankruptcy Case No. 17-BK-3567 (LTS) (D.P.R. May 21, 2017);\n\nIn re P.R. Elec. Power Auth. (PREPA) [hereinafter In re PREPA],\n\nBankruptcy Case No. 17-BK-4780 (LTS) (D.P.R. Jul. 7, 2017).\n\nThereafter, some entities -- now the appellants before us -- arose\n\n\n\n\nLaw School, which he joined in 1999.\n\n\n -17-\n\fin opposition to the Board's initiation of debt adjustment\n\nproceedings on behalf of the Commonwealth.\n\n Among the challengers are Aurelius Investment, LLC, et\n\nal. and Assured Guaranty Corporation, et al. (\"Aurelius\"). Before\n\nthe district court, Aurelius argued that the Board lacked authority\n\nto initiate the Title III proceeding because its members were\n\nappointed in violation of the Appointments Clause and the principle\n\nof separation of powers. The Board rejected this argument,\n\npositing that its members were not \"Officers of the United States\"\n\nwithin the meaning of the Appointments Clause, and that the Board's\n\npowers were purely local in nature, not federal as would be needed\n\nto qualify for Appointments Clause coverage. The Board further\n\nargued that, in any event, the Appointments Clause did not apply\n\neven if the individual members were federal officers, because they\n\nexercised authority in Puerto Rico, an unincorporated territory\n\nwhere the Territorial Clause endows Congress with plenary powers.\n\nThis, according to the Board, exempted Congress from complying\n\nwith the Appointments Clause when legislating in relation to Puerto\n\nRico. In the alternative, the Board argued that the Board Members'\n\nappointment did not require Senate advice and consent because they\n\nwere \"inferior officers.\" The United States intervened on behalf\n\nof the Board, pursuant to 28 U.S.C. § 2403(a), to defend the\n\n\n\n\n -18-\n\fconstitutionality of PROMESA and the validity of the appointments\n\nand was generally in agreement with the Board's contentions.\n\n The other challenger to the Board's appointments\n\nprocess, and an appellant here, is the Unión de Trabajadores de la\n\nIndustria Eléctrica y Riego (\"UTIER\"), a Puerto Rican labor\n\norganization that represents employees of the government-owned\n\nelectric power company, the Puerto Rico Electric Power Authority\n\n(\"PREPA\"). The Board had also filed a Title III petition on behalf\n\nof PREPA, see In re PREPA, supra, which led the UTIER to file an\n\nadversary proceeding as a party of interest before the District\n\nCourt in which it raised substantially the same arguments as\n\nAurelius regarding the Board Members' defective appointment, see\n\nUnión de Trabajadores de la Industria Eléctrica y Riego v. P.R.\n\nElec. Power Auth., No. 17-228 (LTS) (D.P.R. Aug. 15, 2018); see\n\nalso Adversary Complaint, Unión de Trabajadores de la Industria\n\nEléctrica y Riego v. P.R. Elec. Power Auth., No. 17-229 (LTS)\n\n(D.P.R. Aug. 7, 2017) (describing the terms of the UTIER-PREPA\n\ncollective bargaining agreement).\n\n E. The District Court's Opinion\n\n The district court, in separate decisions, ruled against\n\nAurelius and UTIER and rejected their motions to dismiss the\n\nBoard's Title III petitions. In re Commonwealth of P.R.,\n\nBankruptcy Case No. 17-BK-3283 (LTS) (D.P.R. July 3, 2018);\n\n\n -19-\n\fAssured Guar. Mun. Corp. v. Fin. Oversight and Mgmt. Bd. for P.R.,\n\nNo. 18-87 (LTS) (D.P.R. Aug. 3, 2018); UTIER v. PREPA, No. 17-228\n\n(LTS). In brief, the district court determined that the Board is\n\nan instrumentality of the Commonwealth government established\n\npursuant to Congress's plenary powers under the Territorial\n\nClause, that Board Members are not \"Officers of the United States,\"\n\nand that therefore there was no constitutional defect in the method\n\nof their appointment. The court arrived at this conclusion after\n\nconsidering the jurisprudence and practice surrounding the\n\nrelationship between Congress and the territories, including\n\nPuerto Rico, along with Congress's intent with regards to PROMESA.\n\n The district court based its ruling on the premise that\n\n\"the Supreme Court has long held that Congress's power under [the\n\nTerritorial Clause] is both 'general and plenary.'\" Such a\n\nplenary authority is what, according to the district court, allows\n\nCongress to \"establish governmental institutions for territories\n\nthat are not only distinct from federal government entities but\n\ninclude features that would not comport with the requirements of\n\nthe Constitution if they pertained to the governance of the United\n\nStates.\" The district court further pronounced that Congress \"has\n\nexercised [its plenary] power with respect to Puerto Rico over the\n\ncourse of nearly 120 years, including the delegation to the people\n\n\n\n\n -20-\n\fof Puerto Rico elements of its . . . Article IV authority by\n\nauthorizing a significant degree of local self-governance.\"\n\n The district court also relied on judicial precedents\n\nholding that Congress may create territorial courts that do not\n\n\"incorporate the structural assurances of judicial independence\"\n\nprovided for in Article III of the Constitution -- namely, life\n\ntenure and protection against reduction in pay -- as decisive\n\nauthority. From the perdurance of these non-Article III courts\n\nacross the territories (excepting, of course, Puerto Rico which\n\nalthough still an unincorporated territory has had, since 1966, an\n\nArticle III court),9 the district court reasoned that \"Congress\n\ncan thus create territorial entities that are distinct in\n\nstructure, jurisdiction, and powers from the federal government.\"\n\n\n\n9 Act of Sept. 12, 1966, Public Law 89-571, 80 Stat. 764 (granting\njudges appointed to the District of Puerto Rico the same life\ntenure and retirement rights granted to judges of all other United\nStates district courts); see also Examining Bd. of Engineers,\nArchitects & Surveyors v. Flores de Otero, 426 U.S. 572, 594 n.26\n(1976) (\"The reason given [by Congress] for [Public Law 89-571]\nwas that the Federal District Court in Puerto Rico 'is in its\njurisdiction, powers, and responsibilities the same as the U. S.\ndistrict courts in the (several) States.'\" (quoting S. Rep. No.\n89-1504 at 2 (1966))); Igartúa-De La Rosa v. United States, 417\nF.3d 145, 169 (1st Cir. 2005) (en banc) (Torruella, J., dissenting)\n(\"An Article III District Court sits [in Puerto Rico], providing\nnearly one-third of the appeals filed before [the Court of Appeals\nfor the First Circuit], which sits in Puerto Rico at least twice\na year, also in the exercise of Article III power.\"); United States\nv. Santiago, 23 F. Supp. 3d 68, 69 (D.P.R. Feb. 12, 2014)\n(collecting cases and scholarly articles).\n\n\n -21-\n\f Turning to the relationship between Congress and Puerto\n\nRico, the district court noted that \"Congress has long exercised\n\nits Article IV plenary power to structure and define governmental\n\nentities for the island,\" in reference to the litany of\n\ncongressional acts that have shaped Puerto Rico's local government\n\nsince 1898, including the Treaty of Paris of 1898, the Foraker Act\n\nof 1900, the Jones-Shafroth Act of 1917, and Public Law 600 of\n\n1950.\n\n Furthermore, with regards to PROMESA and its Board, the\n\ndistrict court afforded \"substantial deference\" to \"Congress's\n\ndetermination that it was acting pursuant to its Article IV\n\nterritorial powers in creating the . . . Board as an entity of the\n\ngovernment of Puerto Rico.\" The district court then proceeded to\n\nconsider whether Congress can create an entity that is not\n\ninherently federal. It concluded in the affirmative, because\n\nfinding otherwise would \"ignore[] both the plenary nature of\n\ncongressional power under Article IV and the well-rooted\n\njurisprudence . . . establish[ing] that any powers of self-\n\ngovernance exercised by territorial governments are exercised by\n\nvirtue of congressional delegation rather than inherent local\n\nsovereignty.\" Accordingly, the district court found that the\n\n\"creation of an entity such as the . . . Board through popular\n\nelection would not change the . . . Board's ultimate source of\n\n\n -22-\n\fauthority from a constitutional perspective.\" The court deemed\n\nthis so because \"neither the case law nor the historical practice\n\n. . . compels a finding that federal appointment necessarily\n\nrenders an appointee a federal officer.\" The district court\n\ntherefore concluded that the Board is a territorial entity\n\nnotwithstanding\n\n [t]he fact that the . . . Board's members hold office\n by virtue of a federally enacted statutory regime and\n are appointed by the President[,] [because this] does\n not vitiate Congress's express provisions for\n creation of the . . . Board as a territorial\n government entity that \"shall not be considered to be\n a department, agency, establishment, or\n instrumentality of the Federal Government.\"\n\n After ruling that the Board is a \"territorial entity and\n\nits members are territorial officers,\" the district court finally\n\ndetermined that \"Congress had broad discretion to determine the\n\nmanner of selection for members of the . . . Board,\" which Congress\n\n\"exercised . . . in empowering the President with the ability to\n\nboth appoint and remove members from the . . . Board.\" On this\n\nfinal point, the district court observed that \"[a]lthough\n\nhistorical practice . . . indicates that Congress has required\n\nSenate confirmation for certain territorial offices, nothing in\n\nthe Constitution precludes the use of that mechanism for positions\n\ncreated under Article IV, and its use does not establish that\n\nCongress was obligated to invoke it.\"\n\n\n\n -23-\n\f The district court was certainly correct that Article IV\n\nconveys to Congress greater power to rule and regulate within a\n\nterritory than it can bring to bear within the fifty states. In\n\nbrief, within a territory, Congress has not only its customary\n\npower, but also the power to make rules and regulations such as a\n\nstate government may make within its state. See U.S. Const.\n\nart. IV, § 3, cl. 2; D.C. v. John R. Thompson Co., 346 U.S. 100,\n\n106 (1953); Simms v. Simms, 175 U.S. 162, 168 (1899). As we will\n\nexplain, however, we do not view these expanded Article IV powers\n\nas enabling Congress to ignore the structural limitations on the\n\nmanner in which the federal government chooses federal officers,\n\nand we deem the Board Members -- save its ex officio member10 --\n\nto be federal officers.\n\n DISCUSSION\n\n A. The Territorial Clause Does Not Trump the Appointments\n Clause\n\n However much Article IV may broaden the reach of\n\nCongress's powers over a territory as compared to its power within\n\na state, this case presents no claim that the substance of\n\nPROMESA's numerous rules and regulations exceed that reach.\n\n\n10 No Appointments Clause challenge has been brought concerning\nthe Governor of Puerto Rico, or the Governor's designee, who serves\nas an ex officio Board member without voting rights. See 48 U.S.C.\n§ 2121(e)(3). Our holding is therefore limited to the seven Board\nMembers appointed pursuant to 48 U.S.C. § 2121(e)(1)-(2).\n\n\n -24-\n\fInstead, appellants challenge the way the federal government has\n\nchosen the individuals who will implement those rules and\n\nregulations. This challenge trains our focus on the power of\n\nCongress vis-à-vis the other branches of the federal government.\n\nSpecifically, the Board claims that Article IV effectively allows\n\nCongress to assume what is otherwise a power of the President, and\n\nto share within the two bodies of Congress a power only assigned\n\nto the Senate.\n\n We reject this notion that Article IV enhances\n\nCongress's capabilities in the intramural competitions established\n\nby our divided system of government. First, the Board seems to\n\nforget -- and the district court failed to recognize and honor --\n\nthe ancient canon of interpretation that we believe is a helpful\n\nguide to disentangle the interface between the Appointments Clause\n\nand the Territorial Clause: generalia specialibus non derogant\n\n(the \"specific governs the general\"). See, e.g., Turner v.\n\nRogers, 564 U.S. 431, 452-53 (2011) (Thomas, J., dissenting)\n\n(applying this canon in the context of constitutional\n\ninterpretation in a conflict between the Due Process Clause and\n\nthe Sixth Amendment); Albright v. Oliver, 510 U.S. 266, 273-74\n\n(1994) (plurality opinion).\n\n The Territorial Clause is one of general application\n\nauthorizing Congress to engage in rulemaking for the temporary\n\n\n -25-\n\fgovernance of territories. See Reid v. Covert, 354 U.S. 1, 14\n\n(1957) (plurality opinion). But such a general empowerment does\n\nnot extend to areas where the Constitution explicitly contemplates\n\na particular subject, such as the appointment of federal officers.\n\nNowhere does the Territorial Clause reference the subject matter\n\nof federal appointments or the process to effectuate them. On the\n\nother hand, federal officer appointment is, of course, the raison\n\nd'etre of the Appointments Clause. It cannot be clearer or more\n\nunequivocal that the Appointments Clause mandates that it be\n\napplied to \"all . . . Officers of the United States.\" U.S. Const.\n\nart II, § 2, cl. 2 (emphasis added). Thus, we find in answering\n\nthe first question before us a prime candidate for application of\n\nthe specialibus canon and for the strict enforcement of the\n\nconstitutional mandate contained in the Appointments Clause.\n\n Consider next the Presentment Clause of Article I,\n\nSection 7. Under that clause, a bill passed by both chambers of\n\nCongress cannot become law until it is presented to, and signed\n\nby, the President (or the President's veto is overridden). U.S.\n\nConst. art. I, § 7, cl. 2. Surely no one argues that Article IV\n\nshould be construed so as to have allowed Congress to enact PROMESA\n\nwithout presentment, or to have overridden a veto without the\n\nrequisite super-majority vote in both houses. Nor does anyone\n\nseriously argue that Congress could have relied on its plenary\n\n\n -26-\n\fpowers under Article IV to alter the constitutional roles of its\n\ntwo respective houses in enacting PROMESA.\n\n Like the Presentment Clause, the Appointments Clause\n\nconstitutionally regulates how Congress brings its power to bear,\n\nwhatever the reach of that power might be. The Appointments Clause\n\nserves as one of the Constitution's important structural pillars,\n\none that was intended to prevent the \"manipulation of official\n\nappointments\" -- an \"insidious . . . weapon of eighteenth century\n\ndespotism.\" Freytag v. Comm'r, 501 U.S. 868, 883 (1991)\n\n(citations omitted); see also Edmond v. United States, 520 U.S.\n\n651, 659 (1997). The Appointments Clause was designed \"to\n\nprevent[] congressional encroachment\" on the President's\n\nappointment power, while \"curb[ing] Executive abuses\" by requiring\n\nSenate confirmation of all principal officers. Edmond, 520 U.S.\n\nat 659. It is thus universally considered \"among the significant\n\nstructural safeguards of the constitutional scheme.\" Id.\n\n It is true that another restriction that is arguably a\n\nstructural limitation on Congress's exercise of its powers -- the\n\nnondelegation doctrine -- does bend to the peculiar demands of\n\nproviding for governance within the territories. In normal\n\napplication, the doctrine requires that \"when Congress confers\n\ndecisionmaking authority upon agencies,\" it must \"lay down by\n\nlegislative act an intelligible principle to which the person or\n\n\n -27-\n\fbody authorized to [act] is directed to conform.\" Whitman v. Am.\n\nTrucking Ass'ns, 531 U.S. 457, 472 (2001) (quoting J.W. Hampton,\n\nJr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Otherwise,\n\nCongress has violated Article I, Section 1 of the Constitution,\n\nwhich vests \"[a]ll legislative Powers herein granted . . . in a\n\nCongress of the United States.\" Id.; see also U.S. Const. art.\n\nI, § 1. In connection with the territories, though, Congress can\n\ndelegate to territorial governments the power to enact rules and\n\nregulations governing territorial affairs. See John R. Thompson\n\nCo., 346 U.S. at 106 (\"The power of Congress to delegate\n\nlegislative power to a territory is well settled.\"); Cincinnati\n\nSoap Co. v. United States, 301 U.S. 308, 321-23 (1937); see also\n\nSimms, 175 U.S. at 168 (\"In the territories of the United States,\n\nCongress has the entire dominion and sovereignty, national and\n\nlocal, Federal and state, and has full legislative power over all\n\nsubjects upon which the legislature of a state might legislate\n\nwithin the state; and may, at its discretion, intrust that power\n\nto the legislative assembly of a territory.\"). The Supreme Court\n\nhas analogized the powers of Congress over the District of Columbia\n\nand the territories to that of states over their municipalities.\n\nSee John R. Thompson Co., 346 U.S. at 109. In the state-\n\nmunicipality context, \"[a] municipal corporation . . . is but a\n\ndepartment of the State. The legislature may give it all the\n\n\n -28-\n\fpowers such a being is capable of receiving, making it a miniature\n\nState within its locality.\" Barnes v. D.C., 91 U.S. 540, 544\n\n(1875); see also John R. Thompson Co., 346 U.S. at 109 (\"It would\n\nseem then that on the analogy of the delegation of powers of self-\n\ngovernment and home rule both to municipalities and to territories\n\nthere is no constitutional barrier to the delegation by Congress\n\nto the District of Columbia of full legislative power subject of\n\ncourse to constitutional limitations to which all lawmaking is\n\nsubservient and subject also to the power of Congress at any time\n\nto revise, alter, or revoke the authority granted.\"). The Supreme\n\nCourt has also made clear that, in delegating power to the\n\nterritories, Congress can only act insofar as \"other provisions of\n\nthe Constitution are not infringed.\" Atl. Cleaners & Dyers v.\n\nUnited States, 286 U.S. 427, 435 (1932).\n\n The territorial variations on the traditional\n\nrestrictions of the nondelegation doctrine pose no challenge by\n\nCongress to the power of the other branches. Any delegation must\n\ntake the form of a duly enacted statute subject to the President's\n\nveto. Furthermore, the territorial exception to the nondelegation\n\ndoctrine strikes us as strongly implicit in the notion of a\n\nterritory as envisioned by the drafters of the Constitution. The\n\nexpectation was that territories would become states. See Downes\n\nv. Bidwell, 182 U.S. 244, 380 (1901) (Harlan, J., dissenting).\n\n\n -29-\n\fHence, Congress had a duty -- at least a moral duty -- to manage\n\na transition from federal to home rule. While the final delegation\n\ntakes place in the act of formally creating a state, it makes\n\nevident sense that partial delegations of home-rule powers would\n\nincrementally precede full statehood. Accordingly, from the very\n\nbeginning, Congress created territorial legislatures to which it\n\ndelegated rule-making authority. See, e.g., An Ordinance for the\n\nGovernment of the Territory of the United States north-west of the\n\nriver Ohio (1787), ch. 8, 1 Stat. 50, 51 n.(a) (1789).\n\n None of these justifications for limiting the\n\nnondelegation doctrine to accommodate one of Congress's most\n\nsalient purposes in exercising its powers under Article IV applies\n\nto the Appointments Clause. Nor does the teaching of founding era\n\nhistory. To the contrary, the evidence suggests strongly that\n\nCongress in 1789 viewed the process of presidential appointment\n\nand Senate confirmation as applicable to the appointment by the\n\nfederal government of federal officers within the territories.\n\nThat first Congress passed several amendments to the Northwest\n\nOrdinance of 1787 \"so as to adopt the same to the present\n\nConstitution of the United States.\" Id. at 51. One such\n\nconforming amendment eliminated the pre-constitutional procedure\n\nfor congressional appointment of officers within the territory and\n\n\n\n\n -30-\n\freplaced it with presidential nomination and appointment \"by and\n\nwith the advice and consent of the Senate.\" Id. at 53.\n\n More difficult to explain is United States v. Heinszen,\n\n206 U.S. 370, 384-85 (1907). The actual holding in Heinszen\n\nsustained tariffs on goods to the Philippines where the tariffs\n\nwere imposed first by the President and then thereafter expressly\n\nratified by Congress. In sustaining those tariffs, the Court\n\nstated that Congress could have delegated the power to impose the\n\ntariffs to the President beforehand, citing United States v. Dorr,\n\n195 U.S. 138 (1904), a case that simply held that Congress could\n\nprovide for criminal tribunals in the territories without also\n\nproviding for trial by jury. Id. at 149. Heinszen cannot be\n\nexplained as an instance of Congress enabling home rule in a\n\nterritory. Rather, it seems to allow Congress to delegate\n\nlegislative power to the President, citing the territorial context\n\nas a justification. Heinszen, though, has no progeny that might\n\nshed light on how reliable it might serve as an apt analogy in the\n\ncase before us. Moreover, Heinszen concerned a grant of power by\n\nCongress, not a grab for power at the expense of the executive.\n\n For the foregoing reasons, we find in the nondelegation\n\ndoctrine no apt example to justify an exception to the application\n\nof the Appointments Clause within the territories. An exception\n\nfrom the Appointments Clause would alter the balance of power\n\n\n -31-\n\fwithin the federal government itself and would serve no necessary\n\npurpose in the transitioning of territories to states.\n\n Further, the Board points us to Palmore v. United States,\n\n411 U.S. 389 (1973). That case arose out of Congress's exercise\n\nof its plenary powers over the District of Columbia under Article\n\nI, Section 8, Clause 17, powers which are fairly analogous to those\n\nunder Article IV. See John R. Thompson Co., 346 U.S. at 105-09.\n\nThe Court held that Congress could create local courts -- like\n\nstate courts -- that did not satisfy the requirements of\n\nArticle III. Palmore, 411 U.S. at 410. The Board would have us\n\nread Palmore as an instance of Congress's plenary powers over a\n\nterritory trumping the requirements of another structural pillar\n\nof the Constitution. We disagree. The Court explained at length\n\nhow Article III itself did not require that all courts created by\n\nCongress satisfy the selection and tenure requirements of\n\nArticle III. Id. at 407 (\"It is apparent that neither this Court\n\nnor Congress has read the Constitution as requiring every federal\n\nquestion arising under the federal law, or even every criminal\n\nprosecution for violating an Act of Congress, to be tried in an\n\nArt. III court before a judge enjoying lifetime tenure and\n\nprotection against salary reduction.\"). Rather, the requirements\n\nof Article III are applicable to courts \"devoted to matters of\n\nnational concern,\" id. at 408, and that local courts \"primarily\n\n\n -32-\n\f. . . concern[ed] . . . with local law and to serve as a local\n\ncourt system\" created by Congress pursuant to its plenary powers\n\nare simply another example of those courts that did not fit the\n\nArticle III template (like state courts empowered to hear federal\n\ncases, military tribunals, the Court of Private Land Claims, and\n\nconsular courts), id. at 404, 407, 408. In short, Article III was\n\nnot trumped by Congress's creation of local courts pursuant to its\n\nArticle I power. Rather, Article III itself accommodates\n\nexceptions, and the local D.C. court system fits within the range\n\nof those exceptions. That there are courts in other territories\n\nof the same ilk does not alter this analysis. Palmore therefore\n\noffers no firm ground upon which to erect a general Article IV\n\nexception to separation-of-powers stalwarts such as the\n\nAppointments Clause.\n\n Finally, nothing about the \"Insular Cases\"11 casts doubt\n\nover our foregoing analysis. This discredited12 lineage of cases,\n\n\n11 De Lima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States,\n182 U.S. 221 (1901); Dooley v. United States, 182 U.S. 222 (1901);\nArmstrong v. United States, 182 U.S. 243 (1901); Downes, 182 U.S.\n244; Huus v. New York & Porto Rico Steamship Co., 182 U.S. 392\n(1901).\n12 See, e.g., Christina Duffy Burnett, A Convenient Constitution?:\nExtraterritoriality After Boumediene, 109 Colum. L. Rev. 973, 982\n(2009) (noting the Insular Cases have \"long been reviled\" for\nconcluding that \"the Constitution does not 'follow the flag'\noutside the United States\"); Jamal Greene, The Anticanon, 125 Harv.\nL. Rev. 379, 437 (2011) (criticizing that \"the Insular Cases relied\non Dred Scott as authority for the constitutional relationship\n\n -33-\n\fwhich ushered the unincorporated territories doctrine, hovers like\n\na dark cloud over this case. To our knowledge there is no case\n\neven intimating that if Congress acts pursuant to its authority\n\nunder the Territorial Clause it is excused from conforming with\n\nthe Appointments Clause, whether this be by virtue of the \"Insular\n\nCases\" or otherwise. Nor could there be, for it would amount to\n\nthe emasculation from the Constitution of one of its most important\n\nstructural pillars. We thus have no trouble in concluding that\n\nthe Constitution's structural provisions are not limited by\n\ngeography and follow the United States into its unincorporated\n\n\n\nbetween Congress and acquired territories\"); Andrew Kent,\nBoumediene, Munaf, and the Supreme Court's Misreading of the\nInsular Cases, 97 Iowa L. Rev. 101 (2011); Charles E.\nLittlefield, The Insular Cases, 15 Harv. L. Rev. 169, 170 (1901)\n(\"The Insular Cases, in the manner in which the results were\nreached, the incongruity of the results, and the variety of\ninconsistent views expressed by the different members of the court,\nare, I believe, without a parallel in our judicial history.\");\nGerald L. Neuman, Anomalous Zones, 48 Stan. L. Rev. 1197, 1221\n(1996) (observing that \"the colonialism authorized in\nthe Insular Cases . . . was not justified by either peculiar\nnecessity or consent\"); Efrén Rivera Ramos, The Legal Construction\nof American Colonialism: The Insular Cases (1901-1922), 65 Rev.\nJur. U.P.R. 225 (1996); Juan R. Torruella, The Insular Cases: The\nEstablishment of a Regime of Political Apartheid, 29 U. Pa. J.\nInt'l L. 283 (2007); Adriel I. Cepeda Derieux, Note, A Most Insular\nMinority: Reconsidering Judicial Deference to Unequal Treatment in\nLight of Puerto Rico's Political Process Failure, 110 Colum. L.\nRev. 797 (2010); Lisa María Pérez, Note, Citizenship Denied: The\nInsular Cases and the Fourteenth Amendment, 94 Va. L. Rev. 1029\n(2008); see also José A. Cabranes, Puerto Rico: Colonialism as\nConstitutional Doctrine, 100 Harv. L. Rev. 450 (1986) (reviewing\nJuan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine\nof Separate and Unequal (1985)).\n\n -34-\n\fterritories. See Downes, 182 U.S. at 277 (Brown, J.) (noting that\n\n\"prohibitions [going] to the very root of the power of Congress to\n\nact at all, irrespective of time or place\" are operative in the\n\nunincorporated territories).\n\n Notwithstanding this doctrine, appellant UTIER asks us\n\nto go one step further and reverse the \"Insular Cases.\" Although\n\nthere is a lack of enthusiasm for the perdurance of these cases,13\n\nwhich have been regarded as a \"relic from a different era,\" Reid,\n\n354 U.S. at 12, and which Justice Frankfurter described as\n\n\"historically and juridically, an episode of the dead past about\n\nas unrelated to the world of today as the one-hoss shay is to the\n\nlatest jet airplane,\" Reid v. Covert 351 U.S. 487, 492\n\n(1956)(Frankfurter, J., reserving judgment), we cannot be induced\n\nto engage in an ultra vires act merely by siren songs. Not only\n\ndo we lack the authority to meet UTIER's request, but even if we\n\nwere writing on a clean slate, we would be required to stay our\n\nhand when dealing with constitutional litigation if other avenues\n\nof decision were available, and we believe there are in this case.\n\n In this respect, we are aided again by the Supreme\n\nCourt's decision in Reid, which although refusing to reverse the\n\n\"Insular Cases\" outright, provides in its plurality opinion\n\n\n\n13 See supra note 12.\n\n\n -35-\n\finstructive language that outlines the appropriate course we ought\n\nto pursue in the instant appeal:\n\n The \"Insular Cases\" can be distinguished from the\n present cases in that they involved the power of\n Congress to provide rules and regulations to govern\n temporarily territories with wholly dissimilar\n traditions and institutions whereas here the basis\n for governmental power is American citizenship. . . .\n [I]t is our judgment that neither the cases nor their\n reasoning should be given any further expansion.\n\nReid, 354 U.S. at 14 (plurality opinion) (emphasis added); see\n\nalso Boumediene v. Bush, 553 U.S. 723, 765 (2008) (\"Our basic\n\ncharter cannot be contracted away . . . . The Constitution grants\n\nCongress and the President the power to acquire, dispose of, and\n\ngovern territory, not the power to decide when and where its terms\n\napply.\").\n\n The only course, therefore, which we are allowed in light\n\nof Reid is to not further expand the reach of the \"Insular Cases.\"\n\nAccordingly, we conclude that the Territorial Clause and the\n\n\"Insular Cases\" do not impede the application of the Appointments\n\nClause in an unincorporated territory, assuming all other\n\nrequirements of that provision are duly met.\n\n B. Board Members Are \"Officers of the United States\"\n Subject to the Appointments Clause\n\n We must now determine whether the Board Members qualify\n\nwithin the rubric of \"Officers of the United States,\" the\n\nAppointments Clause's job description that marks the entry point\n\n\n -36-\n\ffor its coverage. The district court determined that the Board\n\nMembers do not fall under such a rubric. We disagree.\n\n We begin our analysis by turning to a triad of Supreme\n\nCourt decisions: Lucia v. SEC, 138 S. Ct. 2044 (2018); Freytag,\n\n501 U.S. 868; and Buckley v. Valeo, 424 U.S. 1 (1976). From these\n\ncases, we gather that the following \"test\" must be met for an\n\nappointee to qualify as an \"Officer of the United States\" subject\n\nto the Appointments Clause: (1) the appointee occupies a\n\n\"continuing\" position established by federal law; (2) the\n\nappointee \"exercis[es] significant authority\"; and (3) the\n\nsignificant authority is exercised \"pursuant to the laws of the\n\nUnited States.\" See Lucia, 138 S. Ct. at 2050-51; Freytag, 501\n\nU.S. at 881; Buckley, 424 U.S. at 126. In our view, the Board\n\nMembers readily meet these requirements.\n\n First, Board Members occupy \"continuing positions\" under\n\na federal law since PROMESA provides for their appointment to an\n\ninitial term of three years and they can thereafter be reappointed\n\nand serve until a successor takes office. 48 U.S.C. § 2121(e)(5)\n\n(A), (C)-(D). The continuity of the Board Members' position is\n\nfortified by the provision that only the President can remove them\n\nfrom office and then only for cause. Id. § 2121(e)(5)(B). In\n\nfact, the Board Members' term in office could well extend beyond\n\nthree years, as PROMESA stipulates that the Board will continue in\n\n\n -37-\n\foperation until it certifies that the Commonwealth government has\n\nmet various fiscal objectives \"for at least 4 consecutive fiscal\n\nyears.\" Id. § 2149(2).\n\n Second, the Board Members plainly exercise \"significant\n\nauthority.\" For example, PROMESA empowers the Board Members to\n\ninitiate and prosecute the largest bankruptcy in the history of\n\nthe United States municipal bond market, see Yasmeen Serhan, Puerto\n\nRico Files for Bankruptcy, The Atlantic (May 3, 2017),\n\nhttps://www.theatlantic.com/news/archive/2017/05/puerto-rico-\n\nfiles-for-bankruptcy/525258/, with the bankruptcy power being a\n\nquintessential federal subject matter, see U.S. Const. art. I,\n\n§ 8, cl. 4 (\"The Congress shall have Power . . . [t]o establish\n\nuniform Laws on the subject of Bankruptcies throughout the United\n\nStates.\"). The Supreme Court recently reminded the Commonwealth\n\ngovernment of the bankruptcy power's exclusive federal nature in\n\nFranklin Cal. Tax-Free Trust, 136 S. Ct. at 1938.\n\n The Board Members' federal authority includes the power\n\nto veto, rescind, or revise Commonwealth laws and regulations that\n\nit deems inconsistent with the provisions of PROMESA or the fiscal\n\nplans developed pursuant to it. See 48 U.S.C. § 2144 (\"Review of\n\nactivities to ensure compliance with fiscal plan.\"). Likewise,\n\nthe Board showcases what can be construed as nothing but its\n\nsignificant authority when it rejects the budget of the\n\n\n -38-\n\fCommonwealth or one of its instrumentalities, see id. § 2143\n\n(\"Effect of finding of noncompliance with budget\"); when it rules\n\non the validity of a fiscal plan proposed by the Commonwealth, id.\n\n§ 2141(c)(3); when it issues its own fiscal plan if it rejects the\n\nCommonwealth's proposed plan, id. § 2141(d)(2) (authorizing the\n\nBoard to develop a \"Revised Fiscal Plan\"); and when it exercises\n\nits sole discretion to file a plan of adjustment for Commonwealth\n\ndebt, id. § 2172(a) (\"Only the Oversight Board . . . may file a\n\nplan of adjustment of the debts of the debtor.\"). The Board can\n\nonly employ these significant powers because a federal law so\n\nprovides.\n\n Moreover, Board Members' investigatory and enforcement\n\npowers, as carried out collectively by way of the Board, exceed or\n\nare at least equal to those of the judicial officers the Supreme\n\nCourt found to be \"Officers of the United States\" in Lucia. See\n\n138 S. Ct. at 2053. There, the Supreme Court held that\n\nadministrative law judges are \"Officers of the United States,\" in\n\npart, because they can receive evidence at hearings and administer\n\noaths. Id. PROMESA grants the Board Members the same right and\n\nmore. See 48 U.S.C. § 2124(a); id. § 2124(b) (\"Any member . . .\n\nof the Oversight Board may, if authorized by the Oversight Board,\n\ntake any action that the Oversight Board is authorized to take by\n\nthis section.\"); id. § 2124(c) (\"Obtaining official data\"); id.\n\n\n -39-\n\f§ 2124(f) (\"Subpoena power\"). In short, the Board Members enjoy\n\n\"significant discretion\" as they carry out \"important functions,\"\n\nFreytag, 501 U.S. at 881, under a federal law -- qualities that\n\nthe Supreme Court has considered for decades as the birthmark of\n\nfederal officers who are subject to the Appointments Clause.\n\n Third, the Board Members' authority is exercised\n\n\"pursuant to the laws of the United States.\" The Board Members\n\ntrace their authority directly and exclusively to a federal law,\n\nPROMESA. That federal law provides both their authority and their\n\nduties. Essentially everything they do is pursuant to federal law\n\nunder which the adequacy of their performance is judged by their\n\nfederal master. And this federal master serves in the seat of\n\nfederal power, not San Juan. The Board Members are, in short,\n\nmore like Roman proconsuls picked in Rome to enforce Roman law and\n\noversee territorial leaders than they are like the locally selected\n\nleaders that Rome allowed to continue exercising some authority.\n\nSee, e.g., Louis J. Sirico, Jr., The Federalist and the Lessons of\n\nRome, 75 Miss. L.J. 431, 484 (2006); Dávila Asks House for Reily\n\nInquiry, N.Y. Times (Apr. 5, 1922), https://timesmachine.nytimes.\n\ncom/timesmachine/1922/04/05/112681107.pdf. (comparing the then-\n\nappointed Governor of Puerto Rico to a Roman proconsul)\n\n The United States makes two arguments in support of the\n\ndistrict court's opinion and PROMESA's current appointments\n\n\n -40-\n\fprotocol that warrant our direct response at this point. First,\n\nthe United States argues that historical precedent suggests the\n\ninapplicability of the Appointments Clause to the territories.\n\nSecond, the United States contends that if we find for appellants,\n\nsuch a ruling will invalidate the present-day democratically\n\nelected local governments of Puerto Rico and the other\n\nunincorporated territories because the officers of such\n\ngovernments took office without the Senate's advice and consent.\n\nWe reject each argument in turn.\n\n The relevant historical precedents of which we are aware\n\nlead us to a different conclusion than that claimed by the United\n\nStates. Excepting the short period during which Puerto Rico was\n\nunder military administration following the Spanish-American War,\n\nthe major federal appointments to Puerto Rico's civil government\n\nthroughout the first half of the 20th century all complied with\n\nthe Appointments Clause.\n\n Beginning in 1900 with the Foraker Act, the Governor of\n\nPuerto Rico was to be nominated by the President and confirmed by\n\nthe Senate to a term of four years \"unless sooner removed by the\n\nPresident.\" An Act temporarily to provide revenues and a civil\n\ngovernment for Porto Rico, ch. 191, 31 Stat. 77, 81 (1900). The\n\nForaker Act also mandated presidential nomination and Senate\n\nconfirmation of the members of Puerto Rico's \"Executive Council\"\n\n\n -41-\n\f(which assumed the dual role of executive cabinet and upper chamber\n\nof the territorial legislature). Id. The Executive Council\n\nconsisted of a secretary, an attorney general, a treasurer, an\n\nauditor, a commissioner of the interior, a commissioner of\n\neducation, and five other persons \"of good repute.\" Id. In\n\naddition, the Foraker Act also subjected the justices of the Puerto\n\nRico Supreme Court, along with the marshal and judge of the\n\nterritorial U.S. District Court for the District of \"Porto\" Rico,\n\nto the strictures of the Appointments Clause. Id. Even the three\n\nmembers of a commission established to compile and revise the laws\n\nof \"Porto\" Rico were made subject to the Appointments Clause. Id.\n\n The Foraker Act regime lasted until 1917, when Congress\n\npassed the Jones-Shafroth Act. See An Act to provide a civil\n\ngovernment for Porto Rico, ch. 145, 39 Stat. 951 (1917). Here\n\nagain, Congress provided for all key appointments by Washington to\n\nPuerto Rico's territorial government to meet the Appointments\n\nClause: the governor, attorney general, commissioner of education,\n\nsupreme court justices, district attorney, U.S. marshal, and U.S.\n\nterritorial district judge were to be appointed by the President\n\nwith the advice and consent of the Senate. Id. In sum, between\n\n1900 and 1947 -- the last time the Island had a federally-selected\n\nGovernor -- each of the presidentially appointed Governors of\n\n\n\n\n -42-\n\fPuerto Rico acquired their office after receiving the Senate's\n\nblessing.14\n\n As the United States would have it, Congress's\n\nrequirement of Senate confirmation for presidential nominees in\n\nall of the aforementioned contexts was mere voluntary legislative\n\nsurplusage. This position, however, directly contravenes the\n\npublished opinions of the United States' own Office of Legal\n\nCounsel issued as recently as 2007. See \"Officers of the United\n\nStates Within the Meaning of the Appointments Clause,\" 31 Op.\n\nO.L.C. 73, 122 (2007) (\"[A]n individual who will occupy a position\n\nto which has been delegated by legal authority a portion of the\n\nsovereign powers of the federal government, which is 'continuing,'\n\nmust be appointed pursuant to the Appointments Clause.\"); see also\n\nJennifer L. Mascott, Who Are \"Officers of the United States\", 70\n\nStan. L. Rev. 443, 564 (2018) (\"Extensive evidence suggests that\n\n\n\n14 The early appointments to high-level office in the territorial\ngovernments of the Philippines, Guam, and the Virgin Islands also\nconformed with the Appointments Clause. See Organic Act of Guam\nof 1950, § 6, 64 Stat. 512 (1950) (providing that the Governor of\nGuam \"shall be appointed by the President, by and with the advice\nand consent of the Senate of the United States\"); Organic Act of\nVirgin Islands, § 20, 49 Stat. 1807 (1936) (providing for the\npresidential nomination and Senate confirmation of the Governor,\nwho will then be under supervision of the Secretary of the\nInterior). Even the Panama Canal Zone, during its period under\nUnited States control, had a Governor appointed by the President\n\"by and with the advice of the Senate.\" See Panama Canal Act, 37\nStat. 560 (1912).\n\n\n -43-\n\fthe original public meaning of 'officer' in Article II includes\n\nall federal officials with responsibility for an ongoing statutory\n\nduty.\"). At a minimum, the United States' posture runs head\n\nagainst the sound principle of legislative interpretation\n\nbordering on dogma that \"'[l]ong settled and established practice\n\nis a consideration of great weight in proper interpretation of\n\nconstitutional provisions' regulating the relationship between\n\nCongress and the President.\" NLRB v. Noel Canning, 134 S. Ct.\n\n2550, 2559 (2014) (citing The Pocket Veto Case, 279 U.S. 655, 689\n\n(1929)). Furthermore, the United States fails to support its\n\nassertion with legislative history or other evidence establishing\n\nthat Congress's largely consistent adherence to Appointments\n\nClause procedures in appointing territorial officials was\n\ngratuitous. Lacking such an explanation, we believe it is more\n\nprobable that Congress was simply complying with what the\n\nConstitution requires. Furthermore, that largely consistent\n\ncompliance with Appointment Clause procedures in hundreds if not\n\nthousands of instances over two centuries belies any claim that\n\nadherence to those procedures impedes Congress's exercise of its\n\nplenary powers within the territories.\n\n The United States, as well as the Board, also point to\n\nthe manner in which Congress has for centuries allowed territories\n\nto elect territorial officials, including for example the governor\n\n\n -44-\n\fof Puerto Rico since 1947. See An Act to amend the Organic Act\n\nof Puerto Rico, ch. 490, 61 Stat. 770 (1947). Congress created\n\nmany of these territorial positions and they were filled not\n\nthrough presidential nomination and Senate confirmation, but\n\nrather by elections within the territory. The Board's basic point\n\n(and the United States' basic point as well) is this: If we find\n\nthat the Board Members must be selected by presidential nomination\n\nand Senate confirmation, then that would mean that, for example,\n\nall elected territorial governors and legislators have been\n\nselected in an unconstitutional manner.\n\n We disagree. The elected officials to which the Board\n\nand the United States point -- even at the highest levels -- are\n\nnot federal officers. They do not \"exercise significant authority\n\npursuant to the laws of the United States.\" See Lucia, 138 S. Ct.\n\nat 2051; Freytag, 501 U.S. at 881; Buckley, 424 U.S. at 126; see\n\nalso United States v. Germaine, 99 U.S. 508, 511-12 (1878).\n\nRather, they exercise authority pursuant to the laws of the\n\nterritory. Thus, in Puerto Rico for example, the Governor is\n\nelected by the citizens of Puerto Rico, his position and power are\n\nproducts of the Commonwealth's Constitution, see Puerto Rico\n\nConst. art. IV, and he takes an oath similar to that taken by the\n\ngovernor of a state, id. § 16; see also, e.g., N.Y. Const.\n\n\n\n\n -45-\n\fart. XIII, § 1; Ala. Const. art. XVI, § 279; N.H. Const. pt. II,\n\nart. 84.\n\n It is true that the Commonwealth laws are themselves the\n\nproduct of authority Congress has delegated by statute. See\n\nPuerto Rico v. Sánchez Valle, 136 S. Ct. 1863, 1875 (2016). So\n\nthe elected Governor's power ultimately depends on the\n\ncontinuation of a federal grant. But that fact alone does not\n\nmake the laws of Puerto Rico the laws of the United States, else\n\nevery claim brought under Puerto Rico's laws would pose a federal\n\nquestion. See Viqueira v. First Bank, 140 F.3d 12, 19 (1st Cir.\n\n1998) (\"[T]he plaintiffs' complaint alleges manifold claims under\n\nPuerto Rico law, but it fails to assert any claim arising under\n\nfederal law. Accordingly, no jurisdiction lies under 28 U.S.C.\n\n§ 1331.\"); Everlasting Dev. Corp. v. Sol Luis Descartes, 192 F.2d\n\n1, 6 (1st Cir. 1951) (\"Of course, in so far as the controversy\n\nrelates to the construction of an insular [Puerto Rico] tax\n\nexemption statute, that is not a federal question.\").\n\n C. The Board Members are Principal Officers of the United\n States\n\n Having concluded that the Board Members are indeed\n\nUnited States officers, we now turn to the specific means by which\n\nthey must be appointed pursuant to the Appointments Clause. If\n\nthe officer is a \"principal\" officer, the only constitutional\n\nmethod of appointment is by the President, by and with the advice\n\n -46-\n\fand consent of the Senate. U.S. Const. Art. II, § 2, cl. 2;\n\nEdmond, 520 U.S. at 659. But when an officer is \"inferior,\"\n\nCongress may choose to vest the appointment in the President alone,\n\nthe courts, or a department head. Edmond, 520 U.S. at 660; U.S.\n\nConst. Art. II, § 2, cl. 2. And the Board argues (but we do not\n\ndecide) that the President appointed the Board Members\n\nnotwithstanding the restricted choice from congressional lists.\n\n In Morrison v. Olson, the Supreme Court held that an\n\nindependent counsel was an \"inferior\" officer because she was\n\nsubject to removal by the attorney general and because she had\n\nlimited duties, jurisdiction, and tenure, among other factors.\n\n487 U.S. 654, 671-672 (1988). More than a decade later, the Court\n\nheld that an \"inferior\" officer was one \"whose work is directed\n\nand supervised at some level by others who were appointed by\n\nPresidential nomination with the advice and consent of the Senate.\"\n\nEdmond, 520 U.S. at 663. Our circuit later squared the two cases\n\nby holding that Edmond's supervision test was sufficient, but not\n\nnecessary.15 See United States v. Hilario, 218 F.3d 19, 25 (1st\n\n\n15 There has been long-lasting confusion as to whether Morrison\nis still good law. See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947\n(2017) (Thomas, J., concurring) (\"Although we did not explicitly\noverrule Morrison in Edmond, it is difficult to see how Morrison's\nnebulous approach survived our opinion in Edmond.\"); Akhil Reed\nAmar, Intratextualism, 112 Harv. L. Rev. 747, 810, 811 (1999)\n(arguing that Morrison provided \"a doctrinal test good for one day\nonly\" and that in Edmond the Supreme Court \"apparently abandoned\nMorrison's ad hoc test\"); but see In re Grand Jury Investigation,\n\n -47-\n\fCir. 2000). Therefore, inferior officers are those who are\n\ndirected and supervised by a presidential appointee; otherwise,\n\nthey \"might still be considered inferior officers if the nature of\n\ntheir work suggests sufficient limitations of responsibility and\n\nauthority.\" Id.\n\n The Board Members clearly satisfy the Edmond test. They\n\nare answerable to and removable only by the President and are not\n\ndirected or supervised by others who were appointed by the\n\nPresident with Senate confirmation. 48 U.S.C. § 2121(e)(5)(B);\n\nEdmond, 520 U.S. at 663. Considering the additional Morrison\n\nfactors does not change the calculus. Though the Board Members'\n\ntenure \"is 'temporary' in the sense that [they are] appointed\n\nessentially to accomplish a single task, and when that task is\n\nover the [Board] is terminated,\" Morrison, 487 U.S. at 672, the\n\nBoard's vast duties and jurisdiction are insufficiently limited.\n\nSignificantly, while the independent counsel in Morrison was\n\n\n315 F. Supp. 3d 602, 640 (D.D.C. 2018) (considering the Morrison\nfactors in determining that special counsel is an inferior officer\nof the United States). More recently, in Free Enter. Fund v.\nPublic Co. Accounting Oversight Bd., the Supreme Court held that\nmembers of the Public Company Accounting Oversight Board, who were\nsupervised by the SEC, were inferior officers. 561 U.S. 477, 510\n(2010). In so doing, the Court cited Edmond for the proposition\nthat \"[w]hether one is an 'inferior' officer depends on whether he\nhas a superior.\" Id. However, the Edmond language has already\nbeen analyzed by this court and reconciled with Morrison. Because\nFree Enterprise does not explicitly overrule Morrison, it does not\naffect our precedent.\n\n\n -48-\n\funable to \"formulate policy for the Government or the Executive\n\nBranch,\" PROMESA explicitly grants such authority. See 48 U.S.C.\n\n§ 2144(b)(2). And whereas the jurisdiction of the independent\n\ncounsel was limited, Morrison, 487 U.S. at 672, the Board's\n\nauthority spans across the economy of Puerto Rico -- a territory\n\nwith a population of nearly 3.5 million -- overpowering that of\n\nthe Commonwealth's own elected officials. Under Edmond and\n\nMorrison, the Board Members are \"principal\" United States\n\nofficers. See Hilario, 218 F.3d at 25. They therefore should\n\nhave been appointed by the President, by and with the advice and\n\nconsent of the Senate. Art. II, § 2, cl.2.\n\n THE REMEDY\n\n Having concluded that the process PROMESA provides for\n\nthe appointment of Board Members is unconstitutional, we are left\n\nto determine the relief to which appellants are entitled. Both\n\nAurelius and the UTIER ask that we order dismissal of the Title\n\nIII petitions that the Board filed to commence the restructuring\n\nof Commonwealth debt. In doing so, appellants suggest that we\n\nought to deem invalid all of the Board's actions until today and\n\nthat this case does not warrant application of the de facto officer\n\ndoctrine. It would then be on a constitutionally reconstituted\n\nBoard, they say, to ratify or not ratify the unconstitutional\n\nBoard's actions. Appellants also request that we sever from 48\n\n\n -49-\n\fU.S.C. § 2121(e) the language that authorizes the Board Members'\n\nappointment without Senate confirmation.\n\n There is no question but that in fashioning a remedy to\n\ncorrect the constitutional violation we have found it is unlikely\n\nthat a perfect solution is available. In choosing among potential\n\noptions, we ought to reduce the disruption that our decision may\n\ncause. But we are readily aided by several factors in this\n\nrespect.\n\n First, PROMESA itself contains an express severability\n\nclause, stating as follows:\n\n Except as provided in subsection (b) [regarding\n uniformity of similarly situated territories], if any\n provision of this chapter or the application thereof\n to any person or circumstance is held invalid, the\n remainder of this chapter, or the application of that\n provision to persons or circumstances other than those\n as to which it is held invalid, is not affected\n thereby, provided that subchapter III is not severable\n from subchapters I and II, and subchapters I and II\n are not severable from subchapter III.\n\n48 U.S.C. § 2102.\n\n Such a clause \"creates a presumption that Congress did\n\nnot intend the validity of the statute in question to depend on\n\nthe validity of [a] constitutionally offensive provision.\" Alaska\n\nAirlines, Inc. v. Brock, 480 U.S. 678, 686 (1987).\n\n Severability in this instance is especially appropriate\n\nbecause Congress, within PROMESA, has already provided an\n\nalternative appointments mechanism, at least as to six of the Board\n\n -50-\n\fMembers. PROMESA directs that if the mechanism we found\n\nunconstitutional is not employed, \"[w]ith respect to the\n\nappointment of a Board member . . . such an appointment shall be\n\nby and with the advice and consent of the Senate, unless the\n\nPresident appoints an individual from a list, . . . in which case\n\nno Senate confirmation is required.\" 48 U.S.C. § 2121(e)(2)(E)\n\n(emphasis added).\n\n Accordingly, we hold that the present provisions\n\nallowing the appointment of Board Members in a manner other than\n\nby presidential nomination followed by the Senate's confirmation\n\nare invalid and severable. We do not hold invalid the remainder\n\nof the Board membership provisions, including those providing the\n\nqualifications for office and for appointment by the President\n\nwith the advice and consent of the Senate.\n\n Second, we reject appellants' invitation to dismiss the\n\nTitle III petitions and cast a specter of invalidity over all of\n\nthe Board's actions until the present day. To the contrary, we\n\nfind that application of the de facto officer doctrine is\n\nespecially appropriate in this case.\n\n An ancient tool of equity, the de facto officer doctrine\n\n\"confers validity upon acts performed by a person acting under the\n\ncolor of official title even though it is later discovered that\n\nthe legality of that person's appointment . . . to office is\n\n\n -51-\n\fdeficient.\" Ryder v. United States, 515 U.S. 179, 180 (1995)\n\n(citing Norton v. Shelby Cnty., 118 U.S. 425, 440 (1886)); see\n\nalso Note, The De Facto Officer Doctrine, 63 Colum. L. Rev. 909,\n\n909 n.1 (1963) (\"The first reported case to discuss the concept of\n\nde facto authority was The Abbe of Fountaine, 9 Hen. VI, at 32(3)\n\n(1431).\"). A de facto officer is \"one whose title is not good in\n\nlaw, but who is in fact in the unobstructed possession of an office\n\nand discharging its duties in full view of the public, in such\n\nmanner and under such circumstances as not to present the\n\nappearance of being an intruder or usurper.\" Waite v. Santa Cruz,\n\n184 U.S. 302, 323 (1902). Our sister court for the D.C. Circuit\n\nhas described the doctrine as \"protect[ing] citizens' reliance on\n\npast government actions and the government's ability to take\n\neffective and final action.\" Andrade v. Lauer, 729 F.2d 1475,\n\n1499 (D.C. Cir. 1984).\n\n Here, the Board Members were acting with the color of\n\nauthority -- namely, PROMESA -- when, as an entity, they decided\n\nto file the Title III petitions on the Commonwealth's behalf, a\n\npower squarely within their lawful toolkit. And there is no\n\nindication but that the Board Members acted in good faith in moving\n\nto initiate such proceedings. See Leary v. United States, 268\n\nF.2d 623, 627 (9th Cir. 1959). Moreover, the Board Members' titles\n\nto office were never in question until our resolution of this\n\n\n -52-\n\fappeal.\n\n Other considerations further counsel for our application\n\nof the de facto officer doctrine. We fear that awarding to\n\nappellants the full extent of their requested relief will have\n\nnegative consequences for the many, if not thousands, of innocent\n\nthird parties who have relied on the Board's actions until now.\n\nIn addition, a summary invalidation of everything the Board has\n\ndone since 2016 will likely introduce further delay into a historic\n\ndebt restructuring process that was already turned upside down\n\nonce before by the ravage of the hurricanes that affected Puerto\n\nRico in September 2017. See Stephanie Gleason, Puerto Rico's\n\nBankruptcy Delayed, Moved to New York Following Hurricane María,\n\nThe Street (Sept. 26, 2017), https://www.thestreet.com/story/\n\n14320965/1/puerto-rico-s-bankruptcy-delayed-moved-to-new-york-\n\nfollowing-hurricane-maria.html. At a minimum, dismissing the\n\nTitle III petitions and nullifying the Board's years of work will\n\ncancel out any progress made towards PROMESA's aim of helping\n\nPuerto Rico \"achieve fiscal responsibility and access to the\n\ncapital markets.\" 48 U.S.C. § 2121(a).\n\n We therefore decline to order dismissal of the Board's\n\nTitle III petitions. Our ruling, as such, does not eliminate any\n\notherwise valid actions of the Board prior to the issuance of our\n\nmandate in this case. In so doing, we follow the Supreme Court's\n\n\n -53-\n\fexact approach in Buckley, 424 U.S. at 1, which involved an\n\nAppointments Clause challenge to the then recently formed Federal\n\nElection Commission. Although the Court held that the Commission\n\nwas in fact constituted in violation of the Appointments Clause,\n\nid. at 140, it nonetheless found that such a constitutional\n\ninfirmity did \"not affect the validity of the Commission's . . .\n\npast acts,\" id. at 142. We conclude the same here and find that\n\nseverance is the appropriate relief to which appellants are\n\nentitled after they successfully and \"timely challenge[d] . . .\n\nthe constitutional validity of\" the Board Members' appointment.\n\nRyder, 515 U.S. at 182-83.\n\n Finally, our mandate in these appeals shall not issue\n\nfor 90 days, so as to allow the President and the Senate to validate\n\nthe currently defective appointments or reconstitute the Board in\n\naccordance with the Appointments Clause. Cf. Weinberger v.\n\nRomero-Barceló, 456 U.S. 305, 312-313 (1982). During the 90-day\n\nstay period, the Board may continue to operate as until now.\n\n CONCLUSION\n\n In sum, we hold that the Board Members (other than the\n\nex officio Member) must be, and were not, appointed in compliance\n\nwith the Appointments Clause. Accordingly, the district court's\n\nconclusion to the contrary is reversed. We direct the district\n\ncourt to enter a declaratory judgment to the effect that PROMESA's\n\n\n -54-\n\fprotocol for the appointment of Board Members is unconstitutional\n\nand must be severed. We affirm, however, the district court's\n\ndenial of appellants' motions to dismiss the Title III\n\nproceedings. Each party shall bear its own costs.\n\n So ordered.\n\n Reversed in part and Affirmed in part.\n\n\n\n\n -55-\n[END_CASE]",
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4,591,386 | MS. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. REGIONAL SCHOOL UNIT 72, Defendant, Appellant, Maine Department of Education, Defendant. Ms. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. Maine Department of Education, Defendant, Appellant, Regional School Unit 72, Defendant. | Ms. S. v. Regional School Unit 72 | 2019-02-15 | 17-2214P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Selya, Lipez", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888028/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888029/", "author_raw": ""}, {"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2214\n\n MS. S., individually and\n as parent and legal guardian of B.S., a minor,\n\n Plaintiff, Appellee,\n\n v.\n\n REGIONAL SCHOOL UNIT 72,\n\n Defendant, Appellant,\n\n MAINE DEPARTMENT OF EDUCATION,\n\n Defendant.\n\nNo. 18-1004\n\n MS. S., individually and\n as parent and legal guardian of B.S., a minor,\n\n Plaintiff, Appellee,\n\n v.\n\n MAINE DEPARTMENT OF EDUCATION,\n\n Defendant, Appellant,\n\n REGIONAL SCHOOL UNIT 72,\n\n Defendant.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Jon D. Levy, U.S. District Judge]\n\n Before\n\n Lynch, Selya, and Lipez,\n Circuit Judges.\n\n\n Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on\nbrief, for appellant, Regional School Unit 72.\n Sarah A. Forster, Assistant Attorney General, with whom\nThomas A. Knowlton, Assistant Attorney General, Of Counsel, and\nPhyllis Gardiner, Assistant Attorney General, were on brief, for\nappellant, Maine Department of Education.\n Richard L. O'Meara, with whom Murray, Plumb & Murray was on\nbrief, for appellee.\n\n\n February 15, 2019\n\n LYNCH, Circuit Judge. These appeals stem from a\n\ncomplaint filed by Ms. S. with the Maine Department of Education\n\n(\"MDOE\") in May 2013 alleging violations of the Individuals with\n\nDisabilities Education Act (\"IDEA\"). The state due process hearing\n\nofficer dismissed as untimely Ms. S.'s claims about her son B.S.'s\n\neducation in school years 2009-2010 and 2010-2011 and found no\n\nviolations as to school years 2011-2012 and 2012-2013.\n\n In this second decision from this court, we hold that\n\nMaine has established a two-year statute of limitations for due\n\nprocess complaints and that it has done so to align its statute of\n\nlimitations with the IDEA's. Ms. S.'s claims about 2009-2010 and\n\n2010-2011 are thus time barred. More specifically, we reverse the\n\ndistrict court's ruling that our earlier decision in Ms. S. v.\n\nRegional School Unit 72 (Ms. S. I), 829 F.3d 95 (1st Cir. 2016),\n\nforeclosed this interpretation of Maine's Unified Special\n\nEducation Regulation (\"MUSER\"), as well as the district court's\n\njudgment that Ms. S.'s claims were timely. See MS. S. v. Reg'l\n\nSch. Unit 72, No. 2:13-CV-453-JDL, 2017 WL 5565206, at *7-11 (D.\n\nMe. Nov. 20, 2017). And we reject Ms. S's proposed construction\n\nof MUSER, her waiver argument, and her contention that Regional\n\nSchool Unit 72 (\"RSU 72\") misled her. We remand with instructions\n\nto dismiss her action with prejudice.\n\n\n\n\n - 3 -\n\n I.\n\nA. Legal Background\n\n 1. The IDEA\n\n The IDEA requires states receiving federal special\n\neducation funds to provide eligible children with a free\n\nappropriate public education, or FAPE. 20 U.S.C. § 1412(a)(1).\n\nParents concerned that their child is not receiving a FAPE can\n\nrequest a due process hearing before a \"State educational agency\"\n\nin accordance with procedures \"determined by State law or by the\n\nState educational agency.\" Id. § 1415(f)(1)(A). State procedures\n\nmust be consistent with the IDEA's guidelines, which are laid out\n\nat 20 U.S.C. § 1415. See Burlington v. Dep't of Educ. for the\n\nComm. of Mass., 736 F.2d 773, 783-85 (1st Cir. 1984).\n\n Section 1415 did not initially include a statute of\n\nlimitations, but when Congress reauthorized the IDEA in 2004, it\n\naddressed the timeline for due process hearings in three\n\nprovisions. First, at § 1415(b)(6)(B), in a subsection covering\n\nvarious \"[t]ypes of procedures,\" the IDEA states that a party may\n\nfile a complaint that:\n\n sets forth an alleged violation that occurred not more\n than 2 years before the date the parent or public agency\n knew or should have known about the alleged action that\n forms the basis of the complaint, or, if the State has\n an explicit time limitation for presenting such a\n complaint under this subchapter, in such time as the\n State law allows, except that the exceptions to the\n timeline described in subsection (f)(3)(D) shall apply\n to the timeline described in this subparagraph.\n\n\n\n - 4 -\n\n20 U.S.C. § 1415(b)(6)(B) (emphasis added).\n\n Second, § 1415 describes due process hearings with\n\nparticularity, at § 1415 (f). Section 1415(f)(3)(C) provides:\n\n A parent or agency shall request an impartial due process\n hearing within 2 years of the date the parent or agency\n knew or should have known about the alleged action that\n forms the basis of the complaint, or, if the State has\n an explicit time limitation for requesting such a\n hearing under this subchapter, in such time as the State\n law allows.\n\nId. § 1415(f)(3)(C) (emphasis added).\n\n Third, the statute outlines the \"[e]xceptions to the\n\ntimeline\" referenced at § 1415(b)(6)(B). One exception applies\n\nwhere \"the parent was prevented from requesting the hearing due\n\nto . . . specific misrepresentations by the local educational\n\nagency that it had resolved the problem forming the basis of the\n\ncomplaint.\" Id. § 1415(f)(3)(D).\n\n In 2015, the Third Circuit held in G.L. v. Ligonier\n\nValley School District Authority, 802 F.3d 601, 604-05 (3d Cir.\n\n2015), that \"§ 1415(b)(6)(B) is simply an inartful attempt to\n\nmirror § 1415(f)(3)(C)'s two-year statute of limitations.\" In\n\n2017, the Ninth Circuit concluded the same. See Avila v. Spokane\n\nSch. Dist. 81, 852 F.3d 936, 937 (9th Cir. 2017).\n\n 2. MUSER\n\n In 2007, Maine enacted a state-specific time limitation,\n\nwhich is provided in MUSER. MUSER mirrors the language of the\n\n\n\n\n - 5 -\n\nIDEA. First, MUSER § XVI.5.A(2) tracks the language of 20 U.S.C.\n\n§ 1415(b)(6)(B) and states:\n\n The due process hearing request must allege a\n violation that occurred not more than two\n years before the date the parent . . . knew or\n should have known about the alleged action\n that forms the basis of the due process\n hearing request.\n\nMe. Code R. 05-071, Ch. 101 (\"MUSER\") § XVI.5.A(2) (emphasis\n\nadded). Second, MUSER § XVI.13.E tracks the language of 20 U.S.C.\n\n§ 1415(f)(3)(C) and reads:\n\n A parent . . . must request an impartial\n hearing on their due process hearing request\n within two years of the date the parent or\n agency knew or should have known about the\n alleged action that forms the basis of the due\n process hearing request.\n\nId. § XVI.13.E (emphasis added). Third, at § XVI.13.F, MUSER\n\ndescribes the \"[e]xceptions to the timeline\" provided at\n\n§ 1415(f)(3)(D) of the IDEA. Id. § XVI.13.F.\n\nB. Procedural Background\n\n Our decision in Ms. S. I offers background on B.S.'s\n\neducation. See 829 F.3d at 100–02. Here, we give the relevant\n\nprocedural facts.\n\n Ms. S. filed a due process hearing request in May 2013\n\nalleging that B.S. had not received a FAPE in his four years of\n\nhigh school, from 2009 through 2013. The Maine hearing officer\n\ndismissed as untimely the claims about B.S.'s ninth and tenth grade\n\nyears because they had been filed more than two years after Ms. S.\n\n\n\n - 6 -\n\nknew or should have known of any IDEA violations. On B.S.'s\n\neleventh and twelfth grade years, the hearing officer determined\n\nthat B.S. had received a FAPE, except during a short period when\n\nhe was between schools.\n\n Ms. S. sought judicial review in federal district court.\n\nShe did not contest that the ninth and tenth grade claims had been\n\nfiled more than two years after the reasonable discovery date.\n\nInstead, she challenged MUSER's two-year statute of limitations as\n\ninvalid under the Maine Administrative Procedure Act (\"MAPA\").\n\nThe time periods at MUSER §§ XVI.5.A(2) and XVI.13.E had been\n\nchanged from four to two years in a 2010 rulemaking. Ms. S.\n\nalleged that procedural errors during that rulemaking invalidated\n\nthe change in the time period at § XVI.13.E. About § XVI.5.A(2),\n\nshe argued not that the change was invalid but that it was\n\nirrelevant: § XVI.5.A(2), she said, established not a statute of\n\nlimitations but a separate \"look-back term\" restricting relief to\n\nviolations that occurred up to two years before the reasonable\n\ndiscovery date.\n\n The district court ruled that the revision of the statute\n\nof limitations to two years was valid and that Ms. S. could not\n\nbring her claims about B.S.'s ninth and tenth grade years under\n\nthe specific misrepresentation exception. The district court also\n\nagreed with the hearing officer's FAPE determination. Ms. S.\n\n\n\n\n - 7 -\n\nappealed. The school district, as appellee, defended against her\n\nclaims of error.\n\n Our first decision in Ms. S. I affirmed the district\n\ncourt's FAPE judgment. 829 F.3d at 113-15. The decision vacated\n\nand remanded on the timing issue after finding errors in the\n\ndistrict court's application of MAPA. Id. at 100. Ms. S. I did\n\nnot rule on the statute of limitations issue. Holding that the\n\nrecord was \"insufficient,\" we remanded to the district court for\n\nfurther factfinding and reevaluation. Id.\n\n On remand, the district court immediately granted MDOE\n\nleave to intervene, limited to the issue of whether MUSER had a\n\nvalid two-year statute of limitations.1 MDOE was ordered to\n\n\"compile a record of relevant administrative and legislative\n\nproceedings,\" and it later submitted over 500 pages of materials.\n\nIn her briefing, Ms. S. maintained that the change at § XVI.13.E\n\nwas void under MAPA. MDOE and RSU 72 offered a reworking of their\n\nview of the legal framework: the two MUSER provisions, they argued,\n\nmirror the IDEA and, like that statute, establish a single statute\n\nof limitations, not a statute of limitations and a \"look-back\n\nterm.\" Rejecting MDOE and RSU 72's reading as foreclosed by Ms.\n\nS. I, the district court agreed with Ms. S.'s MAPA arguments and\n\n\n\n 1 The district court rejected MDOE's request to intervene\non a second question: whether B.S. had received a FAPE in ninth\nand tenth grades.\n\n\n - 8 -\n\nheld that her claims were timely. RSU 72 and MDOE both appealed\n\nto this court.\n\n II.\n\n We address two threshold arguments before turning to the\n\ntiming limitations question.\n\nA. Law of the Case\n\n \"The law of the case doctrine 'posits that when a court\n\ndecides upon a rule of law, that decision should continue to govern\n\nthe same issues in subsequent stages in the same case.'\" United\n\nStates v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v.\n\nCalifornia, 460 U.S. 605, 618 (1983), supplemented by 466 U.S. 144\n\n(1984)). One form of the doctrine, known as the mandate rule,\n\nprohibits a trial court from reopening issues decided by an earlier\n\nappellate ruling in the same case. Id. According to the district\n\ncourt, Ms. S. I \"viewed the MUSER Look-Back Term and Filing\n\nLimitation rules as separate, 'unambiguous' provisions.\" Ms. S.,\n\n2017 WL 5565206, at *6. That \"construction of the MUSER rules in\n\nthis case, as the law of the case, is controlling,\" the district\n\ncourt held. Id. at *7. The application of the law of the case\n\ndoctrine is a question of law, which we review de novo. Buntin v.\n\nCity of Boston, 857 F.3d 69, 72 (1st Cir. 2017).\n\n Another form of the doctrine binds successor appellate\n\npanels to holdings of earlier appellate panels. Id. This branch\n\nof the doctrine is \"flexible,\" and has its exceptions. Ellis v.\n\n\n\n - 9 -\n\nUnited States, 313 F.3d 636, 646 (1st Cir. 2002); see also Bryan\n\nGarner et al., The Law of Judicial Precedent § 59 (2016) (detailing\n\nexceptions). The parties spar over whether Ms. S. I bars us from\n\nconsidering the theory that the two provisions of MUSER,\n\n§§ XVI.5.A(2) and XVI.13.E, contain a single statute of\n\nlimitations.\n\n For the law of the case doctrine to be a bar in either\n\nform, the issue must have been \"'actually considered and decided\n\nby the appellate court,' or a decision on the issue must be\n\n'necessarily inferred from the disposition on appeal.'\" Field v.\n\nMans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Commercial Union\n\nIns. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.\n\n1994)). In short, \"[p]rior holdings, as opposed to dicta, measure\n\nthe rule's reach.\" Garner et al., supra, § 54.\n\n Ms. S. I did not reach the issues involved here. The\n\ndistrict court concluded that our prior opinion had held that MUSER\n\ncontained both a look-back term and a filing limitation. The\n\nopinion did no such thing. The parties did not dispute and did\n\nnot brief the MUSER interpretive issue now before us. Instead,\n\nMs. S. I simply used the terminology the parties had used in the\n\nbriefs, which described § XVI.5.A(2) as the \"look-back term\" and\n\n§ XVI.13.E as the \"filing limitation.\" This reading was not, as\n\nM. S. calls it, a \"basic legal conclusion . . . central to [Ms. S.\n\nI's] analysis.\" It was presented only as \"[b]ackground.\" Ms. S.\n\n\n - 10 -\n\nI, 829 F.3d at 100-02. And MUSER played no essential role,\n\nexplicit or implicit, in any of Ms. S. I's remand instructions to\n\nthe district court. The prior panel's first two remand\n\ninstructions both dealt only with state administrative law. See\n\nid. at 105-09. And the third ordered the district court to\n\n\"reevaluate the[] content\" of certain legislative materials.2 Id.\n\nat 112.\n\n Independently, even if a holding from Ms. S. I did\n\noverlap (and none do) with an issue we are now asked to consider,\n\nthe law of the case doctrine would not be a hurdle. An exception\n\nto the doctrine would justify our addressing the issues here:\n\nEverything the panel majority said in Ms. S. I was provisioned on\n\nthe \"insufficient\" record in that first appeal. Id. at 100.\n\nDecisions made on an \"inadequate record or . . . designed to be\n\npreliminary or tentative\" are excepted from the law of the case\n\n\n\n\n 2 In guiding the district court's use of legislative\nevidence, Ms. S. I did remark on MUSER. Ms. S. had argued that\ncourts can never look at legislative intent in evaluating MAPA\ncompliance, so we noted that \"[o]rdinarily, the Law Court does not\nlook beyond language approved by the Legislature to determine the\nLegislature's intent where, as here, the language is unambiguous.\"\nMs. S. I, 829 F.3d at 110. This was not a holding that MUSER\nunambiguously contains two separate timing requirements. Our\ndirective to the district court was evidence-specific and\nemphatically was not that legislative intent is irrelevant because\nof MUSER's clarity. See id at 110-12. Further, what we found\nclear was circumscribed: that the proposed version of § XVI.13.E\nsaid \"four,\" not \"two.\" Id. at 110.\n\n\n - 11 -\n\ndoctrine. Ellis, 313 F.3d at 647.3 In sum, the law of the case\n\ndoctrine does not bar consideration of the theory that MUSER has\n\none statute of limitations mirroring the IDEA's. The district\n\ncourt erred.\n\nB. Waiver\n\n We must deal with one more objection. Ms. S. contends\n\nthat the doctrine of waiver prohibits RSU 72 from arguing that\n\nMUSER has a single statute of limitations because RSU 72 did not\n\ndo so in its briefing in Ms. S. I.4 RSU 72 was the appellee, not\n\nthe appellant, in Ms. S. I. While \"an appellee might in some\n\nsituations be required to raise\" an alternative argument\n\nsupporting affirmance \"in its appellate briefs\" to preserve that\n\nargument for later appeals, this court found no waiver of such an\n\nargument in Field v. Mans. See 157 F.3d at 41-42; see also Field\n\n\n\n 3 Relevant changes in the law –- notably, other circuits'\ndeterminations that the IDEA contains a single statute of\nlimitations -- and in the facts -- including new administrative\nand legislative evidence -- reinforce our conclusion that\nreconsideration is proper. Cf. Nkihtaqmikon v. Impson, 585 F.3d\n495, 498 (1st Cir. 2009) (\"We could revisit our own earlier\ndecision if [the appellant] could show that controlling legal\nauthority has changed dramatically; [or could] proffer significant\nnew evidence, not earlier obtainable in the exercise of due\ndiligence\" (internal quotation marks omitted)); Garner et al.,\nsupra, § 59 (\"[I]n exceptional circumstances involving a dramatic\nchange in controlling legal authority, a court may deviate from\nthe law of the case.\").\n 4 RSU 72 developed the argument that MUSER has a single\nstatute of limitations mirroring the IDEA's on remand in the\ndistrict court.\n\n\n - 12 -\n\nv. Mans, 516 U.S. 59, 78-79 (1995) (Ginsburg, J., concurring)\n\n(suggesting that the argument was not waived and should be\n\nconsidered in future proceedings). In United States v. Moran, we\n\nalso found no waiver of claims of error which were not raised by\n\ndefendants as appellees in prior appeal of a\n\n\"judgment . . . entirely favorable to the appellee.\"5 393 F.3d at\n\n12.\n\n These cases reflect the general rule that \"the failure\n\nof an appellee to have raised all possible alternative grounds for\n\naffirming the district court's original decision, unlike an\n\nappellant's failure to raise all possible grounds for reversal,\n\nshould not operate as a waiver.\" Schering Corp. v. Ill.\n\nAntibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996);6 see also, e.g.,\n\n\n\n 5 Ms. S. leans heavily on Moran, but that case does not\nsupport her position. Moran ultimately found no waiver by former\nappellees, reasoning that they had not been required to raise in\nthe first appeal \"irrelevant\" or \"redundant\" arguments. 393 F.3d\nat 12 (quoting Field, 157 F.3d at 41-42).\n 6 Ms. S. embraces Schering Corp., 89 F.3d at 358-59, but\nit hurts rather than helps her. The Seventh Circuit found waiver\nby a former appellee in circumstances entirely unlike these. The\ncourt found waiver of a challenge, omitted in the first appeal, to\na trial court's ruling excluding evidence supporting affirmance.\nSee id. In the second appeal, the former appellee sought to reopen\nthe previous ruling based on \"newly discovered evidence\" -- i.e.,\nthe evidence excluded by the district court and not raised in the\nfirst appeal. Id. at 359. Schering explicitly distinguished that\nsituation from the one we face, in which \"an alternative ground\nfor affirmance [was omitted] in the previous round\" by appellee\nand no waiver of that argument would be found on subsequent appeal.\nId. at 358.\n\n\n - 13 -\n\nEichorn v. AT&T Corp., 484 F.3d 644, 657–58 (3d Cir. 2007) (\"As\n\n[appellees in the previous appeal], [defendants] were not required\n\nto raise all possible alternative grounds for affirmance to avoid\n\nwaiving those grounds.\"); Indep. Park Apartments v. United States,\n\n449 F.3d 1235, 1240 (Fed. Cir.), decision clarified on reh'g, 465\n\nF.3d 1308 (Fed. Cir. 2006) (\"As appellee, the government was not\n\nrequired to raise all possible alternative grounds for affirmance\n\nin order to avoid waiving any of those grounds.\"); Crocker v.\n\nPiedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (finding\n\nno waiver of issue omitted in prior appeal by then-appellee).\n\n The differing roles of appellees and appellants in\n\nframing the issues and in presenting arguments justifies differing\n\nwaiver rules on subsequent appeal. See Crocker, 49 F.3d at 741\n\n(weighing appellees' \"procedural disadvantage\"). This\n\ndifferentiation also makes practical sense: application of the\n\nwaiver rule to former appellees' omitted arguments would create\n\n\"judicial diseconomies.\" Id. at 741 (emphasis omitted); see also\n\nField, 157 F.3d at 41-42. It would fuel a multiplication of\n\narguments by appellees, even if \"entirely redundant.\" Field, 157\n\nF.3d at 42; see also Crocker, 49 F.3d at 740 (\"[F]orcing appellees\n\nto put forth every conceivable ground for affirmance might increase\n\nthe complexity and scope of appeals.\"). And it would incentivize\n\n\"dubious cross-appeal[s]\" by appellees to fully air their\n\n\n\n\n - 14 -\n\nalternative grounds. Field, 157 F.3d at 41-42; see also Crocker,\n\n49 F.3d at 741.\n\n Whether application of this general rule is justified\n\n\"depends on the particular facts\" of the case. Field, 157 F.3d at\n\n41. And the facts do not support a finding of waiver in RSU 72's\n\nappeal. Ms. S., as appellant, not RSU 72, as appellee, \"defined\n\nthe battleground on the first appeal.\" Crocker, 49 F.3d at 740.\n\nHer briefing adopted the look-back term and filing limitation\n\nframework. To be sure, RSU 72 had an opportunity to advance a\n\none-statute-of-limitations reading in its response brief in Ms. S.\n\nI, as the basis for an alternative ground on which it should\n\nprevail. But it would have been difficult, if not impossible, for\n\nRSU 72's response brief to both defend the district court's\n\ndecision and to present, as the basis for an alternative ground,\n\na reworking of the interpretative framework assumed by the district\n\ncourt. And, had RSU 72 done this, it would not have had a chance\n\nto answer Ms. S.'s reply brief.\n\n Further, as Ms. S. has conceded, the argument does not\n\napply to MDOE because MDOE was not a party to the first appeal.\n\nMDOE, like RSU 72, reads MUSER to contain a single statute of\n\nlimitations, and has strongly urged us to so hold. As MDOE and\n\nRSU 72 argue, the issue at hand is one of \"public concern\" --\n\ntimelines for IDEA due process hearings affect children, parents,\n\nschool districts, states, and taxpayers. Nat'l Ass'n of Soc.\n\n\n - 15 -\n\nWorkers v. Harwood, 69 F.3d 622, 629 (1st Cir. 1995). There is a\n\nstrong public interest in a clear and correct ruling on the purely\n\nlegal question of how to read Maine's statute of limitations for\n\nIDEA due process hearings. See id. at 627-29 (finding no waiver\n\nof publicly important and compelling legal argument); Sindi v. El-\n\nMoslimany, 896 F.3d 1, 28 (1st Cir. 2018) (same).\n\nC. MUSER's Statute of Limitations\n\n 1. Interpreting the Regulation\n\n We hold that Maine intended to adopt a two-year\n\nlimitations period that mirrors the IDEA's timing provisions. This\n\nintent is evident from the language of the provisions: as noted,\n\nMUSER § XVI.5.A(2) mirrors 20 U.S.C. § 1415(b)(6)(B) and MUSER\n\n§ XVI.13.E mirrors 20 U.S.C. § 1414(f)(C)(3). Further, at § I,\n\nMUSER states, \"[t]hroughout this regulation the Department has\n\nreflected the federal statute and regulatory requirements in non-\n\nitalicized text,\" while, \"State requirements are in italicized\n\ntext.\" MUSER § I. The provisions that concern us contain no\n\nrelevant italics; they vary little from the \"federal statute and\n\nregulatory requirements.\"7\n\n So, we turn to the IDEA to determine how to read MUSER.\n\nThe federal Department of Education stated in 2016 that \"[t]he\n\n\n\n 7 Only a state-specific acronym -- \"SAU,\" or school\nadministrative unit -- is italicized in the provisions. See MUSER\n§§ XVI.5.A(2), XVI.13.E.\n\n\n - 16 -\n\nstatute of limitations in section [1415(b)(6)(B)] is the same as\n\nthe statute of limitations in section [1415(f)(3)(C)].\"\n\nAssistance to States for the Education of Children with\n\nDisabilities and Preschool Grants for Children With Disabilities,\n\n71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006). We hold that the\n\nIDEA has a single two-year statute of limitations regulating the\n\namount of time to file a complaint after the reasonable discovery\n\ndate. In holding this, we join the Third and Ninth Circuits. See\n\nG.L., 802 F.3d at 604-05; Avila, 852 F.3d at 937.\n\n When Congress writes a statute of limitations, it\n\nchooses a rule from among several types. See, e.g., TRW Inc. v.\n\nAndrews, 534 U.S. 19, 32 (2001) (discussing various types). One\n\noption is the occurrence rule -- that is, counting from the date\n\nof the violation. See G.L., 802 F.3d at 613. Another option is\n\nthe discovery rule, which counts from the date of discovery. See\n\nid. Section 1415(b)(6)(B) defies categorization: in counting from\n\nthe injury date to the reasonable discovery date, it appears to be\n\na hybrid of these two rules. Like our sister circuits, we doubt\n\nthat Congress intended to invent a new type of timing limit or to\n\nsneak a \"remedy cap\" into § 1415(b)(6)(B). See G.L., 802 F.3d at\n\n613-15; Avila, 852 F.3d at 941-42. Indeed, the Third Circuit\n\ntraced the hints of the occurrence rule in § 1415(b)(6)(B) to a\n\ndrafting error during the reconciliation of the House and Senate\n\nversions of the 2004 IDEA reauthorization. G.L., 802 F.3d at 622-\n\n\n - 17 -\n\n23 (explaining that the House version had used the occurrence rule\n\nand identifying errors in conforming that version to the Senate's).\n\nSection 1415(f)(3)(C), on the other hand, is clear: it establishes\n\na discovery rule. As a result, in the IDEA, a single \"discovery\n\nrule controls.\" G.L., 802 F.3d at 613.\n\n Ms. S. disputes that MUSER can also be read to establish\n\na two-year statute of limitations but not a look-back term. She\n\npoints primarily to MUSER's language. But the reference to the\n\ndate of the \"alleged action\" in the text of § XVI.5.A(2) is a\n\nreplication of the IDEA's drafting mistake, not evidence that Maine\n\nintended to set up two separate state standards. Unconvinced by\n\nMs. S.'s textual arguments, we conclude that MUSER follows the\n\nIDEA in establishing a single statute of limitations that runs\n\nfrom the reasonable discovery date to the filing date.\n\n In addition to being contrary to the state's intent in\n\ndesigning MUSER, Ms. S.'s reading could put MUSER in active\n\nconflict with federal law. Because \"§ 1415(b)(6)(B) is simply an\n\ninartful attempt to mirror § 1415(f)(3)(C)'s two-year statute of\n\nlimitations,\" G.L., 802 F.3d at 604-05; see also Avila, 852 F.3d\n\nat 942, the IDEA likely authorizes states to enact a single state-\n\nspecific statute of limitations, not a look-back term and a filing\n\nlimitation. In fact, most states that have chosen to enact a\n\nstate-specific \"explicit time limitation,\" see G.L., 802 F.3d at\n\n617, including Massachusetts, see Michelle K. v. Pentucket Reg'l\n\n\n - 18 -\n\nSch. Dist., 79 F. Supp. 3d 361, 372-73 (D. Mass. 2015) (discussing\n\nBSEA Hearing Rule I(C)), and New Hampshire, see N.H. Rev. Stat.\n\nAnn. § 186–C:16–b, I; see also Pass v. Rollinsford Sch. Dist., 928\n\nF. Supp. 2d 349, 364 (D.N.H. 2013), have done just that: enacted\n\na single statute of limitations. Ms. S. points to no states that\n\nhave adopted a look-back term and a filing limitation.\n\n 2. Application to Ms. S.'s Claims\n\n It follows that Ms. S.'s claims about the 2009-2010 and\n\n2010-2011 school years were untimely when filed in May 2013. As\n\nMs. S. concedes, these claims alleged violations that Ms. S. knew\n\nor should have known about during school years 2009-2010 and 2010-\n\n2011. The claims were more than two years old when filed, and the\n\nversion of MUSER in force in May 2013 stated that the statute of\n\nlimitations was two years. MUSER §§ XVI.5.A(2), XVI.13.E. The\n\ndistrict court erred in ruling that Ms. S.'s claims were timely.\n\n We have no reason to reach the state law issue of whether\n\nthe MDOE complied with MAPA in promulgating the 2010 amendments to\n\nMUSER. It does not affect the outcome of the case. If there were\n\nno state law procedural errors during the rulemaking or if the\n\nerrors were insubstantial or harmless, then MUSER's statute of\n\nlimitations was validly set at two years as a matter of state\n\nprocedural law. See 5 Me. Rev. Stat. Ann. § 8058(1). Likewise,\n\nif procedural errors were to render the change from four to two at\n\n§ XVI.13.E void under MAPA, then we would conclude that Maine\n\n\n - 19 -\n\nlacked a valid \"explicit time limitation\" and so the federal\n\ndefault, also set at two years, would apply. See 20 U.S.C.\n\n§§ 1415(b)(6)(B); 1415(f)(3)(C) (emphasis added).\n\n The dissent concedes that the IDEA sets a single time\n\nlimitations period for due process hearings; that MUSER \"is\n\nintended to track the federal law\"; and (as does Ms. S.) that the\n\ntime limit at § XVI.5.A(2) was validly changed to two years during\n\nthe 2010 rulemaking. Nonetheless, the dissent rejects our\n\nconclusion that, if there were invalidating procedural errors, the\n\nfederal default would step in. It protests that we should not\n\napply the federal default because the IDEA does not require states\n\nto adopt the federal limitations period. That is true, but it is\n\nbeside the point here. MDOE has consistently taken the position\n\nthat MUSER's timing provisions parallel the IDEA's in structure.\n\nSignificantly, during the 2010 rulemaking, MDOE's concise summary\n\nin the rulemaking Notice explained that \"the statute of limitations\n\nfor due process hearings will be changed to the federal standard\n\nof two years.\" That is, MDOE has always viewed MUSER's statute of\n\nlimitations as tracking the federal law's.8 The IDEA only provides\n\n\n 8 Although the dissent agrees that MUSER tracks the\nfederal law, it suggests that MDOE has not always held this view.\nIt embraces Ms. S.'s unsupported assertion that a 2011 decision by\nan MDOE hearing officer, which, in dicta, described § XVI.5.A(2)\nand § XVI.13.E as distinct, represented the accepted understanding\namong MDOE hearing officers. But MDOE emphasizes that Ms. S. has\npointed to no other, similar statements by hearing officers. And\neven if she had, MDOE, whose hearing officers are independent, cf.\n\n\n - 20 -\n\nfor one statute of limitations,9 so it follows that if the 2010\n\nrulemaking somehow left Maine with two different limitations\n\nperiods, the state lacked its intended \"explicit time limitation,\"\n\nand the federal default should govern.\n\n In short, a two-year statute of limitations was in force\n\nin 2013 when MS. S. filed her due process hearing request and that\n\nrequest was therefore untimely.\n\nD. Specific Misrepresentation Exception\n\n Ms. S. finally argues that, even if a two-year statute\n\nof limitations applies, her claims should be allowed under the\n\nspecific misrepresentation exception. Ms. S. claims that she\n\nfailed to file earlier because of statements by the district that\n\nB.S.'s academic performance made him ineligible for IDEA services.\n\nAs Maine has implemented the IDEA, academic as well as \"functional\"\n\nperformance determine eligibility. MUSER § II.10-II.11; see also\n\nMr. I v. MSAD No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (describing\n\n\n\n\nMUSER § XVI.4.A(4)(c) (requiring the state to enforce due process\nhearing decisions), says that it has never adopted the view\nexpressed in the hearing officer's 2011 dicta. MDOE is best\npositioned to state its views.\n 9 Contrary to the dissent's suggestion, it is immaterial\nto this case that the Third Circuit's decision in G.L. holding\nthat the IDEA contains a single time limitation for due process\nhearings post-dated the 2010 rulemaking. G.L. held, as we do\ntoday, that the IDEA has contained a single statute of limitations\nsince the relevant provisions' enactment in 2004.\n\n\n - 21 -\n\nhow federal and state regulations interact to define IDEA-eligible\n\ndisabilities).\n\n The district court, in its first decision, determined\n\nthat Ms. S. did not qualify for the exception because no\n\nmisrepresentations had occurred. We declined to consider the issue\n\nthen. Ms. S. I, 829 F.3d at 113. Ms. S. does not cross appeal it\n\nhere but raises it as an alternative ground for relief.\n\n The record reveals no misrepresentations –- intentional\n\nor otherwise. The school district never told Ms. S. that academic\n\nperformance alone determined eligibility. Rather, district\n\nemployees, as the record and the district court's first decision\n\nshow, discussed B.S.'s academic performance alongside other\n\nfactors, like his social, behavioral, and emotional development.\n\nWe hold that Ms. S.'s claims regarding B.S.'s ninth and tenth grade\n\nyears are not allowed under the specific misrepresentation\n\nexception to MUSER's statute of limitations.\n\n III.\n\n We reverse and remand to the district court with\n\ninstructions to dismiss with prejudice.\n\n\n\n -Dissenting Opinion Follows-\n\n\n\n\n - 22 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368639/", "author_raw": "LYNCH, Circuit Judge"}, {"author": "LIPEZ, Circuit Judge, dissenting", "type": "dissent", "text": "LIPEZ, Circuit Judge, dissenting. From the vantage\n\npoint of hindsight, my colleagues conclude that a clarifying\n\ninterpretation of federal law rendered for the first time in 2015\n\ncleanses an improper state administrative process that occurred\n\nfive years earlier. I cannot agree that we should ignore the flaws\n\nin the rulemaking process and disregard the purpose of the bypassed\n\nprocedures: to ensure that the public and Legislature understand,\n\nand have an opportunity to comment on, important changes in the\n\nlaw. In my view, the procedural irregularity requires us to affirm\n\nthe district court's conclusion that a four-year filing deadline\n\napplies to Ms. S.'s claims. Accordingly, I respectfully dissent.\n\n I.\n\n The statute-of-limitations question at the heart of this\n\nappeal has perplexed both the parties and the courts from the\n\noutset of the case. In the prior round of decisions, the district\n\ncourt and our panel were challenged by an inadequate record\n\nand -- as it turns out -- the parties' incorrect assumptions about\n\nthe substance of the two provisions of the federal Individuals\n\nwith Disabilities Education Act (\"IDEA\") that govern the timeline\n\nfor requesting a hearing on the claimed denial of a \"free\n\nappropriate public education\" (\"FAPE\"). See Ms. S. v. Reg'l Sch.\n\nUnit 72, 829 F.3d 95 (1st Cir. 2016) (\"Ms. S. I\"); 20 U.S.C.\n\n§§ 1415(b)(6)(B), 1415(f)(3)(C). To some extent, those problems\n\nhave now been addressed. With respect to the IDEA, the thoughtful\n\n\n - 23 -\n\nanalysis by the Third Circuit in G.L. v. Ligonier Valley School\n\nDistrict Authority, 802 F.3d 601, 611-26 (3d Cir. 2015),\n\npersuasively demonstrates that the IDEA has a single two-year\n\nstatute of limitations. Accord Avila v. Spokane Sch. Dist. 81,\n\n852 F.3d 936, 940-44 (9th Cir. 2017). As for the Maine\n\nadministrative process, the parties on remand \"compiled and\n\nsubmitted a more complete record of the rulemaking proceedings\"\n\nthat underlie the state law question. Ms. S. v. Reg'l Sch. Unit\n\n72, No. 2:13-cv-453-JDL, 2017 WL 5565206, at *5 (D. Me. Nov. 20,\n\n2017) (\"Ms. S. II\").\n\n The new light shed by the recent IDEA interpretation and\n\nthe expanded state administrative record does not, however,\n\njustify the outcome reached by my colleagues. Indeed, as I shall\n\nexplain, it is now even more apparent that the limitations\n\nprovisions were unclear for a substantial time. The lack of\n\nclarity contributed to the improper method by which the Maine\n\nDepartment of Education (\"MDOE\" or \"the Department\") attempted to\n\nchange the filing deadline under Maine's Unified Special Education\n\nRegulation (\"MUSER\") for claims asserting denial of a FAPE. That\n\nflawed attempt should prevent us from finding Ms. S.'s claims time-\n\nbarred.10\n\n\n 10\n Because I conclude that, notwithstanding the new arguments\noffered by the MDOE, Ms. S.'s claims are not barred by a regulatory\nfiling deadline, I do not address the issues of waiver or law of\nthe case.\n\n\n - 24 -\n\nA. The Timeline for FAPE Challenges\n\n Like the majority, I agree with the fully elaborated\n\nconclusion of the Third Circuit that the two IDEA provisions\n\npertinent to this case set a single limitations period for\n\nrequesting a FAPE due process hearing. See 20 U.S.C.\n\n§ 1415(b)(6)(B), (f)(3)(C). I also agree that the equivalent\n\nprovisions in Maine's analogue to the IDEA -- MUSER -- are intended\n\nto track the federal law. See Me. Code R. 05-071, Ch. 101 (\"MUSER\")\n\n§§ XVI.5.A(2), XVI.13.E.11 In other words, contrary to the\n\nposition accepted by both parties in the prior appeal, neither the\n\nIDEA nor MUSER has a separate \"lookback\" provision that limits the\n\nremedy for a violation of the FAPE requirement to the two years\n\npreceding the reasonable discovery date for the violation. See\n\nG.L., 802 F.3d at 604-05 (observing that \"§ 1415(b)(6)(B) is simply\n\nan inartful attempt to mirror § 1415(f)(3)(C)'s two-year statute\n\nof limitations\"). Rather, the remedial period has no fixed limit,\n\n\n\n 11\n Section XVI.5.A(2) largely incorporates the language of 20\nU.S.C. § 1415(b)(6)(B) and currently provides that a \"due process\nhearing request must allege a violation that occurred not more\nthan two years before the date the parent or public agency knew or\nshould have known about the alleged action that forms the basis of\nthe due process hearing request.\"\n Section XVI.13.E closely tracks the language of 20 U.S.C.\n§ 1415(f)(3)(C) and currently provides that \"[a] parent or\nagency must request an impartial hearing on their due process\nhearing request within two years of the date the parent or agency\nknew or should have known about the alleged action that forms the\nbasis of the due process hearing request.\"\n\n\n - 25 -\n\nbut the plaintiff must file a FAPE challenge within two years of\n\nthe date the alleged violation was, or reasonably should have been,\n\ndiscovered. See id. at 616, 620-21.\n\n Under the IDEA, the filing deadline has been two years\n\nsince Congress first adopted a limitations period in 2004. Id. at\n\n608-09. Although the text of the equivalent MUSER provisions\n\nlargely mirrors the federal law, their stated timelines have not\n\nalways aligned.12 When the Maine Legislature first enacted\n\nlimitations provisions in MUSER in 2007, it departed from federal\n\nlaw by providing for four-year time periods.13 In 2009, however,\n\nthe MDOE initiated the process for amending several MUSER\n\nprovisions, including changing the \"statute of limitations for due\n\nprocess hearings\" to conform to \"the federal standard of two\n\nyears.\" Notice of Agency Rule-making Proposal, Nov. 24, 2009.\n\n In the notices of the proposed amendments submitted by\n\nthe MDOE to the Secretary of State, as required by the Maine\n\nAdministrative Procedure Act (\"MAPA\"), see Me. Rev. Stat. Ann.\n\ntit. 5, § 8053, the Department stated that the change in timing\n\n\n 12Although the IDEA and its associated regulations provide\nthe default provisions governing due process hearings, states are\npermitted to vary some requirements -- including, specifically,\nthe time limitations at issue in this case. See 20 U.S.C.\n§ 1415(b)(6)(B), (f)(3)(C).\n 13Technically, MUSER initially provided for a four-year\nperiod in one of the two provisions at issue and a two-year period\nfor the other, but the latter was \"corrected\" to four years in\n2008. That change will be discussed below as part of my analysis.\n\n\n - 26 -\n\nwas being proposed \"pursuant to [its] intent to not exceed minimum\n\nfederal requirements and to address cost containment.\"14 The\n\nmaterials submitted with the notices are particularly significant\n\nto this case. I reproduce below the district court's clear and\n\nconcise summary of the documents, noting that the district court\n\nused the descriptive terminology for the two limitations\n\nprovisions (\"look-back term, for § XVI.5.A(2), and \"filing\n\nlimitation\" or \"filing deadline,\" for § XVI.13.E, that the courts\n\nand parties previously used to distinguish them:\n\n Each notice was accompanied by a version of\n MUSER with strikeouts and underlines\n indicating the proposed changes. In the\n proposed changes, the Look-Back Term's\n strikeouts and underlines indicated a change\n from four years to two, while the filing\n deadline provision was untouched.\n Additionally, MUSER contains an Appendix with\n a document entitled \"Notice of Procedural\n Safeguards,\" which is used to instruct the\n public about the rights guaranteed under\n MUSER, and it was also revised to reflect the\n proposed changes. The Notice of Procedural\n Safeguards contained strikeouts and\n underlines that corresponded to the proposed\n change to the Look-Back Term from four years\n to two years:\n\n The due process hearing request must\n allege a violation whether a State or\n federal cause of action under the IDEA\n\n 14\n Two notices were submitted because the MDOE was proposing\nboth an emergency rule change through an accelerated process and\na permanent rule change. The proposals were identical in substance\nbut subject to different procedures. See Ms. S. I, 829 F.3d at\n105-06. The Secretary of State is charged with publishing notice\nof the date of the public hearing on a proposed rule. See Me.\nRev. Stat. Ann. tit. 5, § 8053.\n\n\n - 27 -\n\n that happened not more than four two\n years before you or the SAU [school\n administrative unit] knew or should\n have known about the alleged action\n that forms the basis of the due process\n hearing request.\n\n The Filing Limitation was addressed in the\n \"Due Process Hearing Procedure\" section of\n the Notice of Procedural Safeguards. It\n indicated two non-substantive corrections\n and did not show any change to the four-\n year Filing Limitation:\n\n You or the SAU must request an\n impartial hearing on a due process\n hearing request within—four years of\n the date you or the SAU knew or should\n have known about the issue addressed in\n the hearing request.\n\n Thus, both the MUSER Filing Limitation and the\n explanation of that rule in the Notice of\n Procedural Safeguards did not indicate any\n changes to the substance of the four-year\n Filing Limitation.\n\nMs. S. II, 2017 WL 5565206, at *3 (footnote omitted) (citations\n\nomitted); see also Ms. S. I, 829 F.3d at 103.\n\n The inconsistent treatment of the two provisions also\n\nappeared on the form used to obtain comments from members of the\n\npublic. The comments sheet characterized the proposed change in\n\ntiming as follows: \"§XVI(5)(A)(2) The statute of limitations for\n\ndue process hearings will be changed to the federal standard of\n\ntwo years, Page 161.\" Ms. S. II, No. 2:13-cv-00453-JDL (D. Me.),\n\nDkt. No. 71-1, at 12 (emphasis in comments document); see also Ms.\n\nS. II, 2017 WL 5565206, at *3. Page 161 of the provisional adoption\n\n\n\n - 28 -\n\nproposal displayed the change to two years for § XVI(5)(A)(2),\n\ni.e., the provision that came to be known as the \"lookback term.\"\n\nSee id.; see also Joint App'x at 175. Meanwhile, § XVI.13.E --\n\nthe filing deadline -- appeared in the same document on page 171,\n\nand it remained unchanged at four years. See 2017 WL 5565206, at\n\n*3; Joint App'x at 177.\n\n The Maine Legislature approved the MUSER rule changes in\n\n2010, having reviewed only versions of the proposed revisions that\n\nretained the four-year filing limitation in § XVI.13.E. See Ms.\n\nS. I, 829 F.3d at 104. Then, without any process to alert either\n\nthe public or the Legislature that it was departing from the text\n\nshown in the provisional adoption document, the MDOE adopted a\n\nfinal amended version of MUSER in which the timing in § XVI.13.E\n\nwas reduced to two years. See id. Appellants describe this action\n\nas a \"correction\" that was made to remedy \"a clerical oversight.\"\n\nDOE Br. at 5, 11. A proposal to increase the timeframe for due\n\nprocess hearings was rejected the following year, see Ms. S. II,\n\nNo. 2:13-cv-00453-JDL (D. Me.), Dkt. 71-13, at 33-36, and both\n\n§ XVI(5)(A)(2) and § XVI.13.E thus currently contain two-year\n\nperiods.\n\nB. MUSER's Timing Provisions in Practice\n\n The question at the core of this appeal is whether the\n\nMDOE's adoption of a two-year filing deadline in § XVI.13.E was a\n\npermissible correction of an oversight or a substantive change\n\n\n - 29 -\n\nthat required adherence to formal administrative procedures. Put\n\nanother way, is the two-year limitations period currently stated\n\nin § XVI.13.E invalid because it was enacted unlawfully?\n\n Although my colleagues purport not to reach the \"issue\n\nof whether the MDOE complied with MAPA in promulgating the 2010\n\namendments to MUSER,\" they implicitly accept the oversight\n\nrationale. They conclude that the MDOE intended from the outset\n\nof the 2009-2010 amendment process to revise both MUSER provisions\n\nto reflect a single two-year deadline for due process hearing\n\nrequests. Consistency was necessarily the objective, they\n\nsuggest, because MUSER -- like the IDEA -- contains one limitations\n\nperiod that applies to both provisions. Their position is that,\n\nbecause the two provisions operate in tandem, approval of the two-\n\nyear period in § XVI.5.A(2) (the \"lookback term\") also constituted\n\napproval of the same timeframe for § XVI.13.E (the \"filing\n\ndeadline\"). Accordingly, the MDOE's final version of MUSER in\n\n2010 effected the Legislature's intent and corrected a minor\n\ndrafting error.\n\n The primary problem with the majority's conclusion is\n\nthe failure to account for the uncertainty that long surrounded\n\nthe two distinctly worded provisions in both the IDEA and MUSER.\n\nEven if my colleagues are correct that the MDOE intended in 2009-\n\n2010 to change both timing provisions -- despite all documentary\n\nevidence to the contrary -- that intention would not cure the\n\n\n - 30 -\n\nproblems with the rule-making process. Inexplicably, the majority\n\ngives no consideration at all to what the public and Legislature\n\nwould have reasonably understood in 2009 about the meaning of each\n\nprovision. Yet, as the Third Circuit highlighted in unraveling\n\nthe history of the two IDEA sections, the provisions' differing\n\nlanguage had long posed interpretive difficulties. See G.L., 802\n\nF.3d 610-12.\n\n The sequentially first provision -- i.e., the so-called\n\nlookback provision -- allows a remedy based on actions that\n\noccurred \"not more than two years before the date the parent . . .\n\nknew or should have known about\" the challenged action. MUSER\n\n§ XVI.5.A(2) (emphasis added); see also 20 U.S.C. § 1415(b)(6)(B).\n\nMeanwhile, the second provision sets the filing deadline (for\n\nrequesting a hearing) at two years after the discovery date, see\n\nMUSER § XVI.13.E; 20 U.S.C. § 1415(f)(3)(C). As the Third Circuit\n\nnoted, \"[t]he differences in the language of these provisions and\n\nthe fact that they appear to move in opposite directions from the\n\nreasonable discovery date, has given rise to confusion.\" G.L.,\n\n802 F.3d at 610. Indeed, in determining that the two IDEA\n\nprovisions \"reflect the same statute of limitations,\" id. at 612\n\n(internal quotation marks omitted), the Third Circuit acknowledged\n\nthat \"applying the plain language of the text would force us to\n\ngive § 1415(b)(6)(B) a meaning that 'turns out to be untenable in\n\nlight of the statute as a whole.'\" Id. at 612 (quoting King v.\n\n\n - 31 -\n\nBurwell, 135 S. Ct. 2480, 2495 (2015)). In other words, on their\n\nface, the two provisions do not align, and only the court's close\n\nexamination of context and legislative history revealed their\n\nconformity. See id. at 611-12.\n\n In Maine, the same discrepancy in MUSER's language led\n\nto the notion of two independent timeframes: the \"lookback period\"\n\nof § XVI.5.A(2) and the \"filing deadline\" of § XVI.13.E. The wide\n\nacceptance of that nomenclature -- and the substantive distinction\n\nit denotes -- informed the first round of proceedings in this case.\n\nAs the MDOE observes, the two experienced special education\n\nattorneys who represented the opposing parties treated those terms\n\nas \"commonly used and ha[ving] distinctly different meanings.\"\n\nMDOE Br. at 24. In addition, there is no challenge in the record\n\nto Ms. S.'s representation that attorneys in the field in Maine\n\nhad consistently treated the two provisions as distinct at least\n\nsince an MDOE hearing officer adopted that construction in 2011.\n\nSee Ms. S. II, No. 2:13-cv-00453-JDL (D. Me.), Dkt. 22-5, at 9\n\n(Hearing Officer's Order on Application of Statute of Limitations,\n\nSept. 1, 2011); id. at 17 (referring to \"the IDEA's two year look-\n\nback provision\"). Nor have appellants rebutted Ms. S.'s assertion\n\nthat the 2011 interpretation was consistently followed thereafter\n\nby other Maine hearing officers. To the contrary, the school\n\ndistrict acknowledges that \"the dichotomy offered by the hearing\n\n\n\n\n - 32 -\n\nofficer in 2011 [was] a reading that seemed relatively consistent\n\nwith some components of the language in question.\"\n\n The MDOE attempts both to discredit the hearing\n\nofficer's interpretation and to disclaim any responsibility for\n\nthe subsequent reliance on it by parties and other hearing\n\nofficers. The Department emphatically denies that it necessarily\n\nwas aware of the decision or had an obligation to correct the\n\nmistaken view of the law. These protestations defy common sense.\n\nThe possibility that the Department remained unaware for years of\n\nan \"incorrect\" interpretation of an important component of the\n\nstatutory scheme for which it was responsible strikes me as absurd.\n\nMoreover, even if the Department technically had no affirmative\n\nobligation to clarify the law, its failure to do so is inexplicable\n\nif, in fact, the MDOE always believed the MUSER timing provisions\n\nestablished a single limitations period.\n\n In any event, regardless of the MDOE's unspoken\n\nintention with respect to the MUSER amendments proposed in 2009,\n\nthe history makes plain that it was far from evident to\n\npractitioners and decisionmakers in the field -- i.e., the\n\n\"experts\" charged with day-to-day advocacy or dispute resolution\n\ninvolving the IDEA and MUSER -- that the two provisions stated the\n\nsame limitations period. Indeed, at least by 2011, they had the\n\nopposite understanding.\n\n\n\n\n - 33 -\n\nC. The Need to Fulfill MAPA Requirements\n\n The interpretive confusion documented above has great\n\nsignificance. It means that the MDOE was not free to change the\n\ntiming in § XVI.13.E (the \"filing deadline\") from four years to\n\ntwo years without engaging in the formal administrative process\n\napplicable to major substantive rule changes.15 That is so because,\n\ngiven the retention of \"four years\" in the proposed text of\n\n§ XVI.13.E disseminated throughout the 2009-2010 rulemaking\n\nproceedings, the public and Maine Legislature lacked the required\n\nclear notice that the MDOE was proposing a single two-year\n\nlimitations period. Indeed, the repeated presentation of four\n\nyears as the filing time limit would have bolstered the view that\n\nthe provisions contained independent timelines. Put another way,\n\nthe MDOE owed the public and the Legislature a clear statement of\n\nits intention to reduce by one-half the time allowed for seeking\n\na FAPE due process hearing.16 Instead, the Department effectively\n\n\n\n 15The process for adopting a \"major substantive rule\" -- such\nas the changed filing limitation at issue here -- is described in\ndetail in Ms. S. I. See 829 F.3d at 105-06.\n 16 The MDOE acknowledges the importance of providing notice\nto the public of changes in the limitations period. It points out\nthat the Department could have adopted the emergency version of\nthe rule without a comment period, but \"because the Department\nrecognized that the parents of children with disabilities and their\nadvocates would react strongly to what they viewed as a reduction\nin their rights, the Department elected to provide a public hearing\nand comment period on the emergency rule as well as the permanent\nrule.\" MDOE Br. at 3 n.2.\n\n\n - 34 -\n\ntold the public that the four-year deadline was to remain\n\nunchanged.\n\n The MDOE asserts that the comments submitted during the\n\n2009 administrative proceedings indicated that all concerned\n\nunderstood that the proposal to limit the \"statute of limitations\"\n\ncovered both provisions. The Department emphasizes that none of\n\nthe individuals who commented on the proposed amendments at public\n\nhearings held by the MDOE and the Legislature's Education Committee\n\nsuggested that there was more than one statute of limitations.\n\nHence, the Department posits, no one was misled by the flawed\n\nnotices and supplemental materials, and the errors in the\n\nadministrative process were therefore harmless.\n\n This effort to minimize the errors is both unpersuasive\n\nand unacceptable. The shorthand label \"statute of limitations\"\n\nmay reasonably be applied to a \"limitation\" on the remedial\n\nperiod.17 Moreover, the fact remains that every relevant document\n\n\n\n 17 As we observed in Ms. S. I:\n\n [T]he phrase \"statute of limitations\" is used\n without definition by the MDOE in its public\n notice statement, by the MDOE Commissioner in\n her testimony to the Maine Legislature, by\n many additional witnesses and advocates, and\n by the Legislature itself. Both the filing\n limitation and look-back term involve time\n restrictions, and both periods were originally\n four years while the parallel federal periods\n are both two years. Hence, the \"statute of\n limitations\" label could be used to describe\n\n\n - 35 -\n\ndepicted a revision only to the provision that was treated\n\nthereafter as a limitation on the remedial period. Hence, there\n\nwas no reason to expect comments from the public on a different\n\nlimitations provision that ostensibly was not being changed. See\n\nMs. S. II, 2017 WL 5565206, at *9 (\"The absence of comments\n\nexplicitly addressing the Filing Limitation change from four years\n\nto two years is not surprising given that the proposed MUSER rules\n\ndid not describe such a change in the notice or in the Filing\n\nLimitation rule, nor did the proposal direct commenters to the\n\npage the Filing Limitation appeared on as it did with respect to\n\nthe Look-Back Term.\"). The MDOE's casual, unilateral change to\n\nsuch a significant element of the MUSER scheme was thus patently\n\nimproper.\n\n As well, the MDOE's contention that the inconsistency\n\nwas merely an oversight pushes against the bounds of plausibility.\n\nThe Notice of Procedural Safeguards prepared by the Department and\n\ndisseminated during the 2009-2010 proceedings specified two non-\n\nsubstantive corrections for § XVI.13.E (the \"filing deadline\"),\n\nbut it failed to show a change in the number of years. It is\n\ndifficult to see how a \"mistaken\" retention of the four-year\n\nlanguage could have escaped MDOE attention when the Department\n\n\n the filing limitation, the look-back term, or\n both.\n\n 829 F.3d at 109.\n\n\n - 36 -\n\nmust have focused directly on the provision to make the non-\n\nsubstantive revisions. See Ms. S. II, 2017 WL 5565206, at *10 (\"A\n\nreader could logically conclude from the Notice of Procedural\n\nSafeguards that the drafters had looked at the provision,\n\nconsidered what changes were necessary, and decided to make only\n\nminor, non-substantive adjustments.\"). Hence, even if some\n\nindividuals within the Department viewed the two provisions to\n\nstate the same deadline, the drafting inconsistency is compelling\n\nevidence that there was no uniform understanding even within the\n\nMDOE. It is therefore unsurprising that practitioners in the field\n\nsubsequently accepted the hearing officer's assumption of two\n\nindependent timelines.\n\n To bolster its oversight claim, and in rejecting the\n\nneed for formal MAPA procedures, the MDOE points out that the same\n\ntype of \"clerical\" error accounts for the different time periods\n\ncontained in the original, 2007 versions of the limitations\n\nprovisions. The Department reports that, after final adoption of\n\nthe MUSER rules in 2007, \"the Department discovered several\n\ninconsistencies that had slipped through in the rewriting\n\nprocess.\" MDOE Reply Br. at 6. One such inconsistency, the MDOE\n\nexplains, was retention of the originally proposed two-year\n\nlimitations period in § XVI.13.E (the \"filing deadline\") instead\n\nof the four-year period that the Legislature had expressly directed\n\nfor § XVI.5A(2) (the \"lookback term\"). The MDOE rectified the\n\n\n - 37 -\n\ninconsistency through a new rulemaking in 2008, explaining in\n\npublic materials that \"[t]he purpose and scope of this rulemaking\n\nwas to make several corrections not addressed in the [2007\n\nproceedings] to make consistent . . . the statute of limitations\n\nat four years in appropriate sections.\" MDOE Reply Br., Supp.\n\nApp'x at 21 (quoting Comments and Responses to Proposed Amendments\n\nChapter 101 Public Hearing, Nov. 13, 2007). The change to\n\n§ XVI.13.E, replacing \"two years\" with \"four years\" for the filing\n\ndeadline, was adopted in April 2008 -- i.e., about a year and a\n\nhalf before the MDOE initiated the MUSER rulemaking proceedings\n\nunderlying this case.\n\n The MDOE cites the 2007-2008 history as proof that it\n\nalways construed the timeframes in the two provisions to refer to\n\nthe same deadline for filing a request for a due process hearing,\n\nand it implies that the earlier corrective process validates the\n\n\"technical, conforming correction\" it made in 2010. But regardless\n\nof what the MDOE's actions in 2007 and 2008 reveal about the\n\nDepartment's intentions at that time with respect to the two\n\nprovisions,18 its handling of the earlier inconsistency cannot\n\nlegitimize the subsequent flawed process. Among other factors,\n\nthe earlier change extended the deadline specified in the\n\n\n 18The \"correction\" does not necessarily show that the MDOE\nviewed the two provisions to state the same limitations period;\nthe objective just as easily could have been to adopt a four-year\nperiod for each of two independent provisions.\n\n\n - 38 -\n\nregulation for requesting a due process hearing; now, the MDOE\n\nseeks to cut off remedies for students with disabilities.\n\nMoreover, the MDOE in 2007-2008 did not unilaterally amend the\n\nprovision approved by the Legislature. It gave notice to the\n\npublic of the proposed revision to § XVI.13.E and sought comments.\n\nGiven the handling of the 2007-2008 \"oversight\" in the recent past,\n\nthe Legislature and knowledgeable members of the public in 2009\n\ncould fairly presume that the lack of uniformity in the proposed\n\ntext was intentional, even if it was not.\n\n It bears repeating that confusion abounded concerning\n\nthe two MUSER provisions and their federal counterparts. The MDOE\n\nnonetheless made a significant behind-the-scenes change to a major\n\nsubstantive rule without adhering to the MAPA procedures that are\n\nmeant to ensure that the public and Legislature are informed of\n\nsuch revisions and have the opportunity to raise concerns. See\n\nMs. S. II, 2017 WL 5565206, at *8-11. That improper process cannot\n\nbe cured by relying on the Third Circuit's clarifying\n\ninterpretation of the IDEA more than five years later. See Ms. S.\n\nI, 829 F.3d at 108 (noting the Maine Law Court's conclusion that\n\nthe \"circumstances in which invalidation [of a rule] is automatic\n\nprincipally involve a denial of public participation\" (quoting\n\nFulkerson v. Comm'r, Me. Dep't of Human Servs., 628 A.2d 661, 664\n\n(Me. 1993)) (alteration in original)); id. at 109 (noting that\n\n\n\n\n - 39 -\n\n\"the Legislature at least must have had the opportunity to review\n\nthe substance of a finally adopted rule\").\n\n My colleagues alternatively state that, even if\n\nprocedural errors rendered the revision of § XVI.13.E void under\n\nMAPA, they would conclude that MUSER lacked \"a valid 'explicit\n\ntime limitation'\" and would therefore impose the federal default\n\nof two years for the filing limitation. See Maj. Op. § II.C.2\n\n(quoting 20 U.S.C. § 1415(b)(6)(B), (f)(3)(C) (emphasis added by\n\nmajority)). But there is no justification for such a presumptuous\n\nstep -- that is, overriding a state's prevailing, properly\n\nimplemented limitations period to the detriment of the individuals\n\nthe statute is meant to protect. The IDEA does not require\n\nlockstep between a state's filing limitations period and the\n\nfederal timeline, and, if the change made to § XVI.13.E by the\n\nMDOE in 2010 is invalid, the four-year deadline remains in place.\n\n Moreover, fairness requires our adherence to the longer\n\nfiling limitations period. Section XVI.13.E, the provision\n\nunilaterally amended by the MDOE, has always been understood to\n\nestablish the deadline for requesting a due process hearing. Even\n\nif we now understand that § XVI.5.A(2) is another statement of\n\nthat same deadline, rather than an independent \"lookback term,\" we\n\ncannot simply disregard MAPA's notice and comment requirements for\n\namending the \"filing deadline\" in § XVI.13.E. Put differently,\n\nthis panel's clarifying ruling in this case that federal and state\n\n\n - 40 -\n\nlaw each set a single limitations period cannot undo the flaws in\n\n2009-2010 that -- as the district court properly\n\nfound -- invalidate the MDOE's attempt to reduce the limitations\n\nperiod for requesting a due process hearing. We cannot undo with\n\na few strokes of the pen the confusion or improper administrative\n\nproceedings of the past.\n\n The majority skims over the departure from MAPA's\n\nrequirements, concluding that the unauthorized change to\n\n§ XVI.13.E must be given effect in this case simply because the\n\nMDOE has now explained why a two-year timeframe is appropriate.\n\nThat conclusion fails to respect the objective of public\n\nparticipation reflected in Maine's detailed administrative scheme.\n\nIf the MDOE wants to change the governing four-year statute of\n\nlimitations, it must do so the right way. Unlike my colleagues,\n\nI cannot condone the MDOE's improper adoption of the reduced filing\n\ndeadline, contrary to the public disclosures required by law, or\n\nthe resulting unfair refusal to consider Ms. S.'s claims concerning\n\nher son's ninth and tenth grade years. I therefore respectfully\n\ndissent.\n\n\n\n\n - 41 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368639/", "author_raw": "LIPEZ, Circuit Judge, dissenting"}]} | LYNCH | SELYA | LIPEZ | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591386/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: MS. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. REGIONAL SCHOOL UNIT 72, Defendant, Appellant, Maine Department of Education, Defendant. Ms. S., Individually and as Parent and Legal Guardian of B.S., a Minor, Plaintiff, Appellee, v. Maine Department of Education, Defendant, Appellant, Regional School Unit 72, Defendant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2214\n\n MS. S., individually and\n as parent and legal guardian of B.S., a minor,\n\n Plaintiff, Appellee,\n\n v.\n\n REGIONAL SCHOOL UNIT 72,\n\n Defendant, Appellant,\n\n MAINE DEPARTMENT OF EDUCATION,\n\n Defendant.\n\nNo. 18-1004\n\n MS. S., individually and\n as parent and legal guardian of B.S., a minor,\n\n Plaintiff, Appellee,\n\n v.\n\n MAINE DEPARTMENT OF EDUCATION,\n\n Defendant, Appellant,\n\n REGIONAL SCHOOL UNIT 72,\n\n Defendant.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Jon D. Levy, U.S. District Judge]\n\n Before\n\n Lynch, Selya, and Lipez,\n Circuit Judges.\n\n\n Eric R. Herlan, with whom Drummond Woodsum & MacMahon were on\nbrief, for appellant, Regional School Unit 72.\n Sarah A. Forster, Assistant Attorney General, with whom\nThomas A. Knowlton, Assistant Attorney General, Of Counsel, and\nPhyllis Gardiner, Assistant Attorney General, were on brief, for\nappellant, Maine Department of Education.\n Richard L. O'Meara, with whom Murray, Plumb & Murray was on\nbrief, for appellee.\n\n\n February 15, 2019\n\n LYNCH, Circuit Judge. These appeals stem from a\n\ncomplaint filed by Ms. S. with the Maine Department of Education\n\n(\"MDOE\") in May 2013 alleging violations of the Individuals with\n\nDisabilities Education Act (\"IDEA\"). The state due process hearing\n\nofficer dismissed as untimely Ms. S.'s claims about her son B.S.'s\n\neducation in school years 2009-2010 and 2010-2011 and found no\n\nviolations as to school years 2011-2012 and 2012-2013.\n\n In this second decision from this court, we hold that\n\nMaine has established a two-year statute of limitations for due\n\nprocess complaints and that it has done so to align its statute of\n\nlimitations with the IDEA's. Ms. S.'s claims about 2009-2010 and\n\n2010-2011 are thus time barred. More specifically, we reverse the\n\ndistrict court's ruling that our earlier decision in Ms. S. v.\n\nRegional School Unit 72 (Ms. S. I), 829 F.3d 95 (1st Cir. 2016),\n\nforeclosed this interpretation of Maine's Unified Special\n\nEducation Regulation (\"MUSER\"), as well as the district court's\n\njudgment that Ms. S.'s claims were timely. See MS. S. v. Reg'l\n\nSch. Unit 72, No. 2:13-CV-453-JDL, 2017 WL 5565206, at *7-11 (D.\n\nMe. Nov. 20, 2017). And we reject Ms. S's proposed construction\n\nof MUSER, her waiver argument, and her contention that Regional\n\nSchool Unit 72 (\"RSU 72\") misled her. We remand with instructions\n\nto dismiss her action with prejudice.\n\n\n\n\n - 3 -\n\n I.\n\nA. Legal Background\n\n 1. The IDEA\n\n The IDEA requires states receiving federal special\n\neducation funds to provide eligible children with a free\n\nappropriate public education, or FAPE. 20 U.S.C. § 1412(a)(1).\n\nParents concerned that their child is not receiving a FAPE can\n\nrequest a due process hearing before a \"State educational agency\"\n\nin accordance with procedures \"determined by State law or by the\n\nState educational agency.\" Id. § 1415(f)(1)(A). State procedures\n\nmust be consistent with the IDEA's guidelines, which are laid out\n\nat 20 U.S.C. § 1415. See Burlington v. Dep't of Educ. for the\n\nComm. of Mass., 736 F.2d 773, 783-85 (1st Cir. 1984).\n\n Section 1415 did not initially include a statute of\n\nlimitations, but when Congress reauthorized the IDEA in 2004, it\n\naddressed the timeline for due process hearings in three\n\nprovisions. First, at § 1415(b)(6)(B), in a subsection covering\n\nvarious \"[t]ypes of procedures,\" the IDEA states that a party may\n\nfile a complaint that:\n\n sets forth an alleged violation that occurred not more\n than 2 years before the date the parent or public agency\n knew or should have known about the alleged action that\n forms the basis of the complaint, or, if the State has\n an explicit time limitation for presenting such a\n complaint under this subchapter, in such time as the\n State law allows, except that the exceptions to the\n timeline described in subsection (f)(3)(D) shall apply\n to the timeline described in this subparagraph.\n\n\n\n - 4 -\n\n20 U.S.C. § 1415(b)(6)(B) (emphasis added).\n\n Second, § 1415 describes due process hearings with\n\nparticularity, at § 1415 (f). Section 1415(f)(3)(C) provides:\n\n A parent or agency shall request an impartial due process\n hearing within 2 years of the date the parent or agency\n knew or should have known about the alleged action that\n forms the basis of the complaint, or, if the State has\n an explicit time limitation for requesting such a\n hearing under this subchapter, in such time as the State\n law allows.\n\nId. § 1415(f)(3)(C) (emphasis added).\n\n Third, the statute outlines the \"[e]xceptions to the\n\ntimeline\" referenced at § 1415(b)(6)(B). One exception applies\n\nwhere \"the parent was prevented from requesting the hearing due\n\nto . . . specific misrepresentations by the local educational\n\nagency that it had resolved the problem forming the basis of the\n\ncomplaint.\" Id. § 1415(f)(3)(D).\n\n In 2015, the Third Circuit held in G.L. v. Ligonier\n\nValley School District Authority, 802 F.3d 601, 604-05 (3d Cir.\n\n2015), that \"§ 1415(b)(6)(B) is simply an inartful attempt to\n\nmirror § 1415(f)(3)(C)'s two-year statute of limitations.\" In\n\n2017, the Ninth Circuit concluded the same. See Avila v. Spokane\n\nSch. Dist. 81, 852 F.3d 936, 937 (9th Cir. 2017).\n\n 2. MUSER\n\n In 2007, Maine enacted a state-specific time limitation,\n\nwhich is provided in MUSER. MUSER mirrors the language of the\n\n\n\n\n - 5 -\n\nIDEA. First, MUSER § XVI.5.A(2) tracks the language of 20 U.S.C.\n\n§ 1415(b)(6)(B) and states:\n\n The due process hearing request must allege a\n violation that occurred not more than two\n years before the date the parent . . . knew or\n should have known about the alleged action\n that forms the basis of the due process\n hearing request.\n\nMe. Code R. 05-071, Ch. 101 (\"MUSER\") § XVI.5.A(2) (emphasis\n\nadded). Second, MUSER § XVI.13.E tracks the language of 20 U.S.C.\n\n§ 1415(f)(3)(C) and reads:\n\n A parent . . . must request an impartial\n hearing on their due process hearing request\n within two years of the date the parent or\n agency knew or should have known about the\n alleged action that forms the basis of the due\n process hearing request.\n\nId. § XVI.13.E (emphasis added). Third, at § XVI.13.F, MUSER\n\ndescribes the \"[e]xceptions to the timeline\" provided at\n\n§ 1415(f)(3)(D) of the IDEA. Id. § XVI.13.F.\n\nB. Procedural Background\n\n Our decision in Ms. S. I offers background on B.S.'s\n\neducation. See 829 F.3d at 100–02. Here, we give the relevant\n\nprocedural facts.\n\n Ms. S. filed a due process hearing request in May 2013\n\nalleging that B.S. had not received a FAPE in his four years of\n\nhigh school, from 2009 through 2013. The Maine hearing officer\n\ndismissed as untimely the claims about B.S.'s ninth and tenth grade\n\nyears because they had been filed more than two years after Ms. S.\n\n\n\n - 6 -\n\nknew or should have known of any IDEA violations. On B.S.'s\n\neleventh and twelfth grade years, the hearing officer determined\n\nthat B.S. had received a FAPE, except during a short period when\n\nhe was between schools.\n\n Ms. S. sought judicial review in federal district court.\n\nShe did not contest that the ninth and tenth grade claims had been\n\nfiled more than two years after the reasonable discovery date.\n\nInstead, she challenged MUSER's two-year statute of limitations as\n\ninvalid under the Maine Administrative Procedure Act (\"MAPA\").\n\nThe time periods at MUSER §§ XVI.5.A(2) and XVI.13.E had been\n\nchanged from four to two years in a 2010 rulemaking. Ms. S.\n\nalleged that procedural errors during that rulemaking invalidated\n\nthe change in the time period at § XVI.13.E. About § XVI.5.A(2),\n\nshe argued not that the change was invalid but that it was\n\nirrelevant: § XVI.5.A(2), she said, established not a statute of\n\nlimitations but a separate \"look-back term\" restricting relief to\n\nviolations that occurred up to two years before the reasonable\n\ndiscovery date.\n\n The district court ruled that the revision of the statute\n\nof limitations to two years was valid and that Ms. S. could not\n\nbring her claims about B.S.'s ninth and tenth grade years under\n\nthe specific misrepresentation exception. The district court also\n\nagreed with the hearing officer's FAPE determination. Ms. S.\n\n\n\n\n - 7 -\n\nappealed. The school district, as appellee, defended against her\n\nclaims of error.\n\n Our first decision in Ms. S. I affirmed the district\n\ncourt's FAPE judgment. 829 F.3d at 113-15. The decision vacated\n\nand remanded on the timing issue after finding errors in the\n\ndistrict court's application of MAPA. Id. at 100. Ms. S. I did\n\nnot rule on the statute of limitations issue. Holding that the\n\nrecord was \"insufficient,\" we remanded to the district court for\n\nfurther factfinding and reevaluation. Id.\n\n On remand, the district court immediately granted MDOE\n\nleave to intervene, limited to the issue of whether MUSER had a\n\nvalid two-year statute of limitations.1 MDOE was ordered to\n\n\"compile a record of relevant administrative and legislative\n\nproceedings,\" and it later submitted over 500 pages of materials.\n\nIn her briefing, Ms. S. maintained that the change at § XVI.13.E\n\nwas void under MAPA. MDOE and RSU 72 offered a reworking of their\n\nview of the legal framework: the two MUSER provisions, they argued,\n\nmirror the IDEA and, like that statute, establish a single statute\n\nof limitations, not a statute of limitations and a \"look-back\n\nterm.\" Rejecting MDOE and RSU 72's reading as foreclosed by Ms.\n\nS. I, the district court agreed with Ms. S.'s MAPA arguments and\n\n\n\n 1 The district court rejected MDOE's request to intervene\non a second question: whether B.S. had received a FAPE in ninth\nand tenth grades.\n\n\n - 8 -\n\nheld that her claims were timely. RSU 72 and MDOE both appealed\n\nto this court.\n\n II.\n\n We address two threshold arguments before turning to the\n\ntiming limitations question.\n\nA. Law of the Case\n\n \"The law of the case doctrine 'posits that when a court\n\ndecides upon a rule of law, that decision should continue to govern\n\nthe same issues in subsequent stages in the same case.'\" United\n\nStates v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) (quoting Arizona v.\n\nCalifornia, 460 U.S. 605, 618 (1983), supplemented by 466 U.S. 144\n\n(1984)). One form of the doctrine, known as the mandate rule,\n\nprohibits a trial court from reopening issues decided by an earlier\n\nappellate ruling in the same case. Id. According to the district\n\ncourt, Ms. S. I \"viewed the MUSER Look-Back Term and Filing\n\nLimitation rules as separate, 'unambiguous' provisions.\" Ms. S.,\n\n2017 WL 5565206, at *6. That \"construction of the MUSER rules in\n\nthis case, as the law of the case, is controlling,\" the district\n\ncourt held. Id. at *7. The application of the law of the case\n\ndoctrine is a question of law, which we review de novo. Buntin v.\n\nCity of Boston, 857 F.3d 69, 72 (1st Cir. 2017).\n\n Another form of the doctrine binds successor appellate\n\npanels to holdings of earlier appellate panels. Id. This branch\n\nof the doctrine is \"flexible,\" and has its exceptions. Ellis v.\n\n\n\n - 9 -\n\nUnited States, 313 F.3d 636, 646 (1st Cir. 2002); see also Bryan\n\nGarner et al., The Law of Judicial Precedent § 59 (2016) (detailing\n\nexceptions). The parties spar over whether Ms. S. I bars us from\n\nconsidering the theory that the two provisions of MUSER,\n\n§§ XVI.5.A(2) and XVI.13.E, contain a single statute of\n\nlimitations.\n\n For the law of the case doctrine to be a bar in either\n\nform, the issue must have been \"'actually considered and decided\n\nby the appellate court,' or a decision on the issue must be\n\n'necessarily inferred from the disposition on appeal.'\" Field v.\n\nMans, 157 F.3d 35, 40 (1st Cir. 1998) (quoting Commercial Union\n\nIns. Co. v. Walbrook Ins. Co., Ltd., 41 F.3d 764, 770 (1st Cir.\n\n1994)). In short, \"[p]rior holdings, as opposed to dicta, measure\n\nthe rule's reach.\" Garner et al., supra, § 54.\n\n Ms. S. I did not reach the issues involved here. The\n\ndistrict court concluded that our prior opinion had held that MUSER\n\ncontained both a look-back term and a filing limitation. The\n\nopinion did no such thing. The parties did not dispute and did\n\nnot brief the MUSER interpretive issue now before us. Instead,\n\nMs. S. I simply used the terminology the parties had used in the\n\nbriefs, which described § XVI.5.A(2) as the \"look-back term\" and\n\n§ XVI.13.E as the \"filing limitation.\" This reading was not, as\n\nM. S. calls it, a \"basic legal conclusion . . . central to [Ms. S.\n\nI's] analysis.\" It was presented only as \"[b]ackground.\" Ms. S.\n\n\n - 10 -\n\nI, 829 F.3d at 100-02. And MUSER played no essential role,\n\nexplicit or implicit, in any of Ms. S. I's remand instructions to\n\nthe district court. The prior panel's first two remand\n\ninstructions both dealt only with state administrative law. See\n\nid. at 105-09. And the third ordered the district court to\n\n\"reevaluate the[] content\" of certain legislative materials.2 Id.\n\nat 112.\n\n Independently, even if a holding from Ms. S. I did\n\noverlap (and none do) with an issue we are now asked to consider,\n\nthe law of the case doctrine would not be a hurdle. An exception\n\nto the doctrine would justify our addressing the issues here:\n\nEverything the panel majority said in Ms. S. I was provisioned on\n\nthe \"insufficient\" record in that first appeal. Id. at 100.\n\nDecisions made on an \"inadequate record or . . . designed to be\n\npreliminary or tentative\" are excepted from the law of the case\n\n\n\n\n 2 In guiding the district court's use of legislative\nevidence, Ms. S. I did remark on MUSER. Ms. S. had argued that\ncourts can never look at legislative intent in evaluating MAPA\ncompliance, so we noted that \"[o]rdinarily, the Law Court does not\nlook beyond language approved by the Legislature to determine the\nLegislature's intent where, as here, the language is unambiguous.\"\nMs. S. I, 829 F.3d at 110. This was not a holding that MUSER\nunambiguously contains two separate timing requirements. Our\ndirective to the district court was evidence-specific and\nemphatically was not that legislative intent is irrelevant because\nof MUSER's clarity. See id at 110-12. Further, what we found\nclear was circumscribed: that the proposed version of § XVI.13.E\nsaid \"four,\" not \"two.\" Id. at 110.\n\n\n - 11 -\n\ndoctrine. Ellis, 313 F.3d at 647.3 In sum, the law of the case\n\ndoctrine does not bar consideration of the theory that MUSER has\n\none statute of limitations mirroring the IDEA's. The district\n\ncourt erred.\n\nB. Waiver\n\n We must deal with one more objection. Ms. S. contends\n\nthat the doctrine of waiver prohibits RSU 72 from arguing that\n\nMUSER has a single statute of limitations because RSU 72 did not\n\ndo so in its briefing in Ms. S. I.4 RSU 72 was the appellee, not\n\nthe appellant, in Ms. S. I. While \"an appellee might in some\n\nsituations be required to raise\" an alternative argument\n\nsupporting affirmance \"in its appellate briefs\" to preserve that\n\nargument for later appeals, this court found no waiver of such an\n\nargument in Field v. Mans. See 157 F.3d at 41-42; see also Field\n\n\n\n 3 Relevant changes in the law –- notably, other circuits'\ndeterminations that the IDEA contains a single statute of\nlimitations -- and in the facts -- including new administrative\nand legislative evidence -- reinforce our conclusion that\nreconsideration is proper. Cf. Nkihtaqmikon v. Impson, 585 F.3d\n495, 498 (1st Cir. 2009) (\"We could revisit our own earlier\ndecision if [the appellant] could show that controlling legal\nauthority has changed dramatically; [or could] proffer significant\nnew evidence, not earlier obtainable in the exercise of due\ndiligence\" (internal quotation marks omitted)); Garner et al.,\nsupra, § 59 (\"[I]n exceptional circumstances involving a dramatic\nchange in controlling legal authority, a court may deviate from\nthe law of the case.\").\n 4 RSU 72 developed the argument that MUSER has a single\nstatute of limitations mirroring the IDEA's on remand in the\ndistrict court.\n\n\n - 12 -\n\nv. Mans, 516 U.S. 59, 78-79 (1995) (Ginsburg, J., concurring)\n\n(suggesting that the argument was not waived and should be\n\nconsidered in future proceedings). In United States v. Moran, we\n\nalso found no waiver of claims of error which were not raised by\n\ndefendants as appellees in prior appeal of a\n\n\"judgment . . . entirely favorable to the appellee.\"5 393 F.3d at\n\n12.\n\n These cases reflect the general rule that \"the failure\n\nof an appellee to have raised all possible alternative grounds for\n\naffirming the district court's original decision, unlike an\n\nappellant's failure to raise all possible grounds for reversal,\n\nshould not operate as a waiver.\" Schering Corp. v. Ill.\n\nAntibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996);6 see also, e.g.,\n\n\n\n 5 Ms. S. leans heavily on Moran, but that case does not\nsupport her position. Moran ultimately found no waiver by former\nappellees, reasoning that they had not been required to raise in\nthe first appeal \"irrelevant\" or \"redundant\" arguments. 393 F.3d\nat 12 (quoting Field, 157 F.3d at 41-42).\n 6 Ms. S. embraces Schering Corp., 89 F.3d at 358-59, but\nit hurts rather than helps her. The Seventh Circuit found waiver\nby a former appellee in circumstances entirely unlike these. The\ncourt found waiver of a challenge, omitted in the first appeal, to\na trial court's ruling excluding evidence supporting affirmance.\nSee id. In the second appeal, the former appellee sought to reopen\nthe previous ruling based on \"newly discovered evidence\" -- i.e.,\nthe evidence excluded by the district court and not raised in the\nfirst appeal. Id. at 359. Schering explicitly distinguished that\nsituation from the one we face, in which \"an alternative ground\nfor affirmance [was omitted] in the previous round\" by appellee\nand no waiver of that argument would be found on subsequent appeal.\nId. at 358.\n\n\n - 13 -\n\nEichorn v. AT&T Corp., 484 F.3d 644, 657–58 (3d Cir. 2007) (\"As\n\n[appellees in the previous appeal], [defendants] were not required\n\nto raise all possible alternative grounds for affirmance to avoid\n\nwaiving those grounds.\"); Indep. Park Apartments v. United States,\n\n449 F.3d 1235, 1240 (Fed. Cir.), decision clarified on reh'g, 465\n\nF.3d 1308 (Fed. Cir. 2006) (\"As appellee, the government was not\n\nrequired to raise all possible alternative grounds for affirmance\n\nin order to avoid waiving any of those grounds.\"); Crocker v.\n\nPiedmont Aviation, Inc., 49 F.3d 735, 740 (D.C. Cir. 1995) (finding\n\nno waiver of issue omitted in prior appeal by then-appellee).\n\n The differing roles of appellees and appellants in\n\nframing the issues and in presenting arguments justifies differing\n\nwaiver rules on subsequent appeal. See Crocker, 49 F.3d at 741\n\n(weighing appellees' \"procedural disadvantage\"). This\n\ndifferentiation also makes practical sense: application of the\n\nwaiver rule to former appellees' omitted arguments would create\n\n\"judicial diseconomies.\" Id. at 741 (emphasis omitted); see also\n\nField, 157 F.3d at 41-42. It would fuel a multiplication of\n\narguments by appellees, even if \"entirely redundant.\" Field, 157\n\nF.3d at 42; see also Crocker, 49 F.3d at 740 (\"[F]orcing appellees\n\nto put forth every conceivable ground for affirmance might increase\n\nthe complexity and scope of appeals.\"). And it would incentivize\n\n\"dubious cross-appeal[s]\" by appellees to fully air their\n\n\n\n\n - 14 -\n\nalternative grounds. Field, 157 F.3d at 41-42; see also Crocker,\n\n49 F.3d at 741.\n\n Whether application of this general rule is justified\n\n\"depends on the particular facts\" of the case. Field, 157 F.3d at\n\n41. And the facts do not support a finding of waiver in RSU 72's\n\nappeal. Ms. S., as appellant, not RSU 72, as appellee, \"defined\n\nthe battleground on the first appeal.\" Crocker, 49 F.3d at 740.\n\nHer briefing adopted the look-back term and filing limitation\n\nframework. To be sure, RSU 72 had an opportunity to advance a\n\none-statute-of-limitations reading in its response brief in Ms. S.\n\nI, as the basis for an alternative ground on which it should\n\nprevail. But it would have been difficult, if not impossible, for\n\nRSU 72's response brief to both defend the district court's\n\ndecision and to present, as the basis for an alternative ground,\n\na reworking of the interpretative framework assumed by the district\n\ncourt. And, had RSU 72 done this, it would not have had a chance\n\nto answer Ms. S.'s reply brief.\n\n Further, as Ms. S. has conceded, the argument does not\n\napply to MDOE because MDOE was not a party to the first appeal.\n\nMDOE, like RSU 72, reads MUSER to contain a single statute of\n\nlimitations, and has strongly urged us to so hold. As MDOE and\n\nRSU 72 argue, the issue at hand is one of \"public concern\" --\n\ntimelines for IDEA due process hearings affect children, parents,\n\nschool districts, states, and taxpayers. Nat'l Ass'n of Soc.\n\n\n - 15 -\n\nWorkers v. Harwood, 69 F.3d 622, 629 (1st Cir. 1995). There is a\n\nstrong public interest in a clear and correct ruling on the purely\n\nlegal question of how to read Maine's statute of limitations for\n\nIDEA due process hearings. See id. at 627-29 (finding no waiver\n\nof publicly important and compelling legal argument); Sindi v. El-\n\nMoslimany, 896 F.3d 1, 28 (1st Cir. 2018) (same).\n\nC. MUSER's Statute of Limitations\n\n 1. Interpreting the Regulation\n\n We hold that Maine intended to adopt a two-year\n\nlimitations period that mirrors the IDEA's timing provisions. This\n\nintent is evident from the language of the provisions: as noted,\n\nMUSER § XVI.5.A(2) mirrors 20 U.S.C. § 1415(b)(6)(B) and MUSER\n\n§ XVI.13.E mirrors 20 U.S.C. § 1414(f)(C)(3). Further, at § I,\n\nMUSER states, \"[t]hroughout this regulation the Department has\n\nreflected the federal statute and regulatory requirements in non-\n\nitalicized text,\" while, \"State requirements are in italicized\n\ntext.\" MUSER § I. The provisions that concern us contain no\n\nrelevant italics; they vary little from the \"federal statute and\n\nregulatory requirements.\"7\n\n So, we turn to the IDEA to determine how to read MUSER.\n\nThe federal Department of Education stated in 2016 that \"[t]he\n\n\n\n 7 Only a state-specific acronym -- \"SAU,\" or school\nadministrative unit -- is italicized in the provisions. See MUSER\n§§ XVI.5.A(2), XVI.13.E.\n\n\n - 16 -\n\nstatute of limitations in section [1415(b)(6)(B)] is the same as\n\nthe statute of limitations in section [1415(f)(3)(C)].\"\n\nAssistance to States for the Education of Children with\n\nDisabilities and Preschool Grants for Children With Disabilities,\n\n71 Fed. Reg. 46,540, 46,706 (Aug. 14, 2006). We hold that the\n\nIDEA has a single two-year statute of limitations regulating the\n\namount of time to file a complaint after the reasonable discovery\n\ndate. In holding this, we join the Third and Ninth Circuits. See\n\nG.L., 802 F.3d at 604-05; Avila, 852 F.3d at 937.\n\n When Congress writes a statute of limitations, it\n\nchooses a rule from among several types. See, e.g., TRW Inc. v.\n\nAndrews, 534 U.S. 19, 32 (2001) (discussing various types). One\n\noption is the occurrence rule -- that is, counting from the date\n\nof the violation. See G.L., 802 F.3d at 613. Another option is\n\nthe discovery rule, which counts from the date of discovery. See\n\nid. Section 1415(b)(6)(B) defies categorization: in counting from\n\nthe injury date to the reasonable discovery date, it appears to be\n\na hybrid of these two rules. Like our sister circuits, we doubt\n\nthat Congress intended to invent a new type of timing limit or to\n\nsneak a \"remedy cap\" into § 1415(b)(6)(B). See G.L., 802 F.3d at\n\n613-15; Avila, 852 F.3d at 941-42. Indeed, the Third Circuit\n\ntraced the hints of the occurrence rule in § 1415(b)(6)(B) to a\n\ndrafting error during the reconciliation of the House and Senate\n\nversions of the 2004 IDEA reauthorization. G.L., 802 F.3d at 622-\n\n\n - 17 -\n\n23 (explaining that the House version had used the occurrence rule\n\nand identifying errors in conforming that version to the Senate's).\n\nSection 1415(f)(3)(C), on the other hand, is clear: it establishes\n\na discovery rule. As a result, in the IDEA, a single \"discovery\n\nrule controls.\" G.L., 802 F.3d at 613.\n\n Ms. S. disputes that MUSER can also be read to establish\n\na two-year statute of limitations but not a look-back term. She\n\npoints primarily to MUSER's language. But the reference to the\n\ndate of the \"alleged action\" in the text of § XVI.5.A(2) is a\n\nreplication of the IDEA's drafting mistake, not evidence that Maine\n\nintended to set up two separate state standards. Unconvinced by\n\nMs. S.'s textual arguments, we conclude that MUSER follows the\n\nIDEA in establishing a single statute of limitations that runs\n\nfrom the reasonable discovery date to the filing date.\n\n In addition to being contrary to the state's intent in\n\ndesigning MUSER, Ms. S.'s reading could put MUSER in active\n\nconflict with federal law. Because \"§ 1415(b)(6)(B) is simply an\n\ninartful attempt to mirror § 1415(f)(3)(C)'s two-year statute of\n\nlimitations,\" G.L., 802 F.3d at 604-05; see also Avila, 852 F.3d\n\nat 942, the IDEA likely authorizes states to enact a single state-\n\nspecific statute of limitations, not a look-back term and a filing\n\nlimitation. In fact, most states that have chosen to enact a\n\nstate-specific \"explicit time limitation,\" see G.L., 802 F.3d at\n\n617, including Massachusetts, see Michelle K. v. Pentucket Reg'l\n\n\n - 18 -\n\nSch. Dist., 79 F. Supp. 3d 361, 372-73 (D. Mass. 2015) (discussing\n\nBSEA Hearing Rule I(C)), and New Hampshire, see N.H. Rev. Stat.\n\nAnn. § 186–C:16–b, I; see also Pass v. Rollinsford Sch. Dist., 928\n\nF. Supp. 2d 349, 364 (D.N.H. 2013), have done just that: enacted\n\na single statute of limitations. Ms. S. points to no states that\n\nhave adopted a look-back term and a filing limitation.\n\n 2. Application to Ms. S.'s Claims\n\n It follows that Ms. S.'s claims about the 2009-2010 and\n\n2010-2011 school years were untimely when filed in May 2013. As\n\nMs. S. concedes, these claims alleged violations that Ms. S. knew\n\nor should have known about during school years 2009-2010 and 2010-\n\n2011. The claims were more than two years old when filed, and the\n\nversion of MUSER in force in May 2013 stated that the statute of\n\nlimitations was two years. MUSER §§ XVI.5.A(2), XVI.13.E. The\n\ndistrict court erred in ruling that Ms. S.'s claims were timely.\n\n We have no reason to reach the state law issue of whether\n\nthe MDOE complied with MAPA in promulgating the 2010 amendments to\n\nMUSER. It does not affect the outcome of the case. If there were\n\nno state law procedural errors during the rulemaking or if the\n\nerrors were insubstantial or harmless, then MUSER's statute of\n\nlimitations was validly set at two years as a matter of state\n\nprocedural law. See 5 Me. Rev. Stat. Ann. § 8058(1). Likewise,\n\nif procedural errors were to render the change from four to two at\n\n§ XVI.13.E void under MAPA, then we would conclude that Maine\n\n\n - 19 -\n\nlacked a valid \"explicit time limitation\" and so the federal\n\ndefault, also set at two years, would apply. See 20 U.S.C.\n\n§§ 1415(b)(6)(B); 1415(f)(3)(C) (emphasis added).\n\n The dissent concedes that the IDEA sets a single time\n\nlimitations period for due process hearings; that MUSER \"is\n\nintended to track the federal law\"; and (as does Ms. S.) that the\n\ntime limit at § XVI.5.A(2) was validly changed to two years during\n\nthe 2010 rulemaking. Nonetheless, the dissent rejects our\n\nconclusion that, if there were invalidating procedural errors, the\n\nfederal default would step in. It protests that we should not\n\napply the federal default because the IDEA does not require states\n\nto adopt the federal limitations period. That is true, but it is\n\nbeside the point here. MDOE has consistently taken the position\n\nthat MUSER's timing provisions parallel the IDEA's in structure.\n\nSignificantly, during the 2010 rulemaking, MDOE's concise summary\n\nin the rulemaking Notice explained that \"the statute of limitations\n\nfor due process hearings will be changed to the federal standard\n\nof two years.\" That is, MDOE has always viewed MUSER's statute of\n\nlimitations as tracking the federal law's.8 The IDEA only provides\n\n\n 8 Although the dissent agrees that MUSER tracks the\nfederal law, it suggests that MDOE has not always held this view.\nIt embraces Ms. S.'s unsupported assertion that a 2011 decision by\nan MDOE hearing officer, which, in dicta, described § XVI.5.A(2)\nand § XVI.13.E as distinct, represented the accepted understanding\namong MDOE hearing officers. But MDOE emphasizes that Ms. S. has\npointed to no other, similar statements by hearing officers. And\neven if she had, MDOE, whose hearing officers are independent, cf.\n\n\n - 20 -\n\nfor one statute of limitations,9 so it follows that if the 2010\n\nrulemaking somehow left Maine with two different limitations\n\nperiods, the state lacked its intended \"explicit time limitation,\"\n\nand the federal default should govern.\n\n In short, a two-year statute of limitations was in force\n\nin 2013 when MS. S. filed her due process hearing request and that\n\nrequest was therefore untimely.\n\nD. Specific Misrepresentation Exception\n\n Ms. S. finally argues that, even if a two-year statute\n\nof limitations applies, her claims should be allowed under the\n\nspecific misrepresentation exception. Ms. S. claims that she\n\nfailed to file earlier because of statements by the district that\n\nB.S.'s academic performance made him ineligible for IDEA services.\n\nAs Maine has implemented the IDEA, academic as well as \"functional\"\n\nperformance determine eligibility. MUSER § II.10-II.11; see also\n\nMr. I v. MSAD No. 55, 480 F.3d 1, 11 (1st Cir. 2007) (describing\n\n\n\n\nMUSER § XVI.4.A(4)(c) (requiring the state to enforce due process\nhearing decisions), says that it has never adopted the view\nexpressed in the hearing officer's 2011 dicta. MDOE is best\npositioned to state its views.\n 9 Contrary to the dissent's suggestion, it is immaterial\nto this case that the Third Circuit's decision in G.L. holding\nthat the IDEA contains a single time limitation for due process\nhearings post-dated the 2010 rulemaking. G.L. held, as we do\ntoday, that the IDEA has contained a single statute of limitations\nsince the relevant provisions' enactment in 2004.\n\n\n - 21 -\n\nhow federal and state regulations interact to define IDEA-eligible\n\ndisabilities).\n\n The district court, in its first decision, determined\n\nthat Ms. S. did not qualify for the exception because no\n\nmisrepresentations had occurred. We declined to consider the issue\n\nthen. Ms. S. I, 829 F.3d at 113. Ms. S. does not cross appeal it\n\nhere but raises it as an alternative ground for relief.\n\n The record reveals no misrepresentations –- intentional\n\nor otherwise. The school district never told Ms. S. that academic\n\nperformance alone determined eligibility. Rather, district\n\nemployees, as the record and the district court's first decision\n\nshow, discussed B.S.'s academic performance alongside other\n\nfactors, like his social, behavioral, and emotional development.\n\nWe hold that Ms. S.'s claims regarding B.S.'s ninth and tenth grade\n\nyears are not allowed under the specific misrepresentation\n\nexception to MUSER's statute of limitations.\n\n III.\n\n We reverse and remand to the district court with\n\ninstructions to dismiss with prejudice.\n\n\n\n -Dissenting Opinion Follows-\n\n\n\n\n - 22 -\n[END_CASE]",
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4,591,741 | DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR FFMLT TRUST 2005-FF2, Mortgage Pass-Through Certificates, Series 2005-FF2, Plaintiff, Appellant/Cross-Appellee, v. Jennifer L. PIKE, Defendant, Appellee/Cross-Appellant. | Deutsche Bank Nat'l Trust Co. v. Pike | 2019-02-19 | 17-1815 | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Lipez, Thompson", "parties": "", "opinions": [{"author": "LIPEZ, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNos. 17-1815, 17-1936\n\n\n DEUTSCHE BANK NATIONAL TRUST COMPANY,\n Trustee for FFMLT Trust 2005-FF2,\n Mortgage Pass-Through Certificates, Series 2005-FF2,\n\n Plaintiff, Appellant/Cross-Appellee,\n\n v.\n\n JENNIFER L. PIKE,\n\n Defendant, Appellee/Cross-Appellant.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\n\n\n Before\n\n Torruella, Lipez, and Thompson,\n Circuit Judges.\n\n\n Kevin P. Polansky, with whom Christine M. Kingston and Nelson\nMullins Riley Scarborough LLP were on brief, for appellant.\n Stephen T. Martin, with whom The Law Offices of Martin &\nHipple, PLLC was on brief, for appellee.\n\n\n February 19, 2019\n\f LIPEZ, Circuit Judge. In this diversity case, Deutsche\n\nBank National Trust Company contends that the district court erred\n\nin concluding that its mortgage interest in a property in New\n\nLondon, New Hampshire, is subject to a homestead right of the\n\nproperty's resident, Jennifer Pike. In a cross-appeal, Pike\n\ncontends that the district court erred in denying her post-judgment\n\nmotion for attorney's fees. After careful review, we affirm both\n\nthe rejection of Deutsche Bank's claims and the denial of Pike's\n\nrequest for attorney's fees.\n\n I.\n\nA. Factual Background\n\n William and Jennifer Pike were married in 2000.1 In\n\n2001, William bought the property at 34 Dogwood Lane in New London\n\n(\"the Property\"). Only William was listed on the deed, but\n\nJennifer continuously resided at the address from the time of\n\npurchase through the filing of the present suit. In 2003, William\n\nobtained a loan from New Century Mortgage Corporation secured by\n\na mortgage on the Property. Both William's and Jennifer's\n\nsignatures were on this mortgage, which included a provision\n\nstating that \"[b]orrower[] and [b]orrower's spouse . . . release\n\nall rights of homestead in the Property.\" Jennifer disputes that\n\n\n\n\n 1For ease of reference, we will refer to William Pike as\n\"William\" and Jennifer Pike as \"Jennifer.\"\n\n\n - 2 -\n\fshe signed the New Century mortgage and asserts that she only later\n\nbecame aware of its existence.\n\n In late 2004, William obtained another loan, secured by\n\nthe Property, from First Franklin Financial Corporation, pursuant\n\nto which he again waived his homestead right. The parties agree\n\nthat William did not obtain the First Franklin loan through fraud\n\nor other egregious misconduct. Jennifer did not sign the note or\n\nmortgage.2 A few months later, the New Century loan balance was\n\npaid off and that mortgage was discharged.\n\n The Pikes subsequently executed several transfers of the\n\nProperty between William, Jennifer, and a family trust. The\n\nProperty was deeded back to William in 2007.3 The First Franklin\n\nmortgage was assigned to Deutsche Bank in 2009.4\n\n The Pikes were divorced by decree on July 3, 2013. The\n\ndecree included the following provision regarding the Property\n\n\n\n\n 2 Although the First Franklin mortgage document stipulates\nthat the borrower and the \"borrower's spouse\" release their\nhomestead rights, the parties appear to assume that this provision\nwould not be effective against a non-signatory spouse, and we\nproceed on that assumption.\n\n 3 William filed for bankruptcy subsequent to these transfers,\nbut the parties do not contend that his bankruptcy is relevant to\nthe issues on appeal.\n\n 4 The appellant's full name is Deutsche Bank National Trust\nCompany, Trustee for FFMLT Trust 2005 FF2, Mortgage Pass-Through\nCertificates, Series 2005-FF2.\n\n\n - 3 -\n\f(strikethroughs in original; initialed, handwritten addition in\n\nitalics):\n\n 14. Marital Homestead:\n\n A. Jennifer Pike is awarded the exclusive use and\n\n possession of the marital homestead located at 34\n\n Dogwood Lane, New London, New Hampshire free and clear\n\n of any interest of William Pike.\n\n B. Jennifer may remain in the home until it goes\n\n into foreclosure, or [their son] graduates high school.\n\n C. If the house does not go [into] foreclosure and\n\n the parties can sell the home, the parties shall list\n\n the house for sale once [their son] graduates high\n\n school. The Parties will share equally any equity in\n\n the home.\n\n D. The Parties will share equally the cost of any\n\n necessary home repairs over $500. If a repair is\n\n necessary, Jennifer will inform William of the repair\n\n via email and provide him an explanation of the repair\n\n needed and include a quote for the work, if possible.\n\n William will forward his share of the repair cost to the\n\n contractor directly if possible. If that is not\n\n possible, he will give his share of the repair cost to\n\n Jennifer within 30 days of the repair. [With respect to\n\n repairs necessary to preserve the habitability of the\n\n\n - 4 -\n\f house, Jennifer will give notice to Bill of the need,\n\n and upon Bill's review, and inspection, and agreement\n\n that the repair is necessary, Bill shall share up to 50%\n\n of the cost of the Repair.]\n\nThe decree also provides, \"[e]xcept as otherwise provide[d]\n\nherein, each party shall sign and deliver to the other party any\n\ndocument that is needed to fulfill or accomplish the terms of this\n\nDecree within thirty (30) days of the request to do so.\"\n\n Deutsche Bank began foreclosure proceedings on the\n\nProperty on July 11, 2013. About two weeks later -- on July 26 -\n\n- William deeded the Property to Jennifer, and the deed was\n\nrecorded shortly thereafter. The deed states, \"[t]his conveyance\n\nis in conformance with [the] divorce decree in the Matter of\n\nJennifer Pike and William T. Pike, Jr.\"\n\n Jennifer subsequently filed a complaint in state court\n\nasserting a homestead right in the Property and seeking to enjoin\n\nDeutsche Bank from foreclosing. The state court entered summary\n\njudgment in Deutsche Bank's favor after determining that the Bank\n\nhad standing to foreclose, and that Jennifer's assertion of a\n\nhomestead right was premature. The New Hampshire Supreme Court\n\naffirmed. See Pike v. Deutsche Bank Nat'l Tr. Co., 121 A.3d 279\n\n(N.H. 2015).\n\n\n\n\n - 5 -\n\fB. Procedural Background\n\n Shortly after the conclusion of the litigation in state\n\ncourt, Deutsche Bank filed this suit in federal court seeking a\n\ndeclaratory judgment either that its interest in the Property is\n\nnot subject to Jennifer's homestead right (Count I), or that it is\n\nentitled to equitable subrogation \"as to the amount it paid to\n\ndischarge the prior mortgage\" (Count II). In support of its\n\nequitable subrogation claim, Deutsche Bank contends that, as\n\nsuccessor to First Franklin, it is entitled to step into the shoes\n\nof New Century -- the 2003 lender -- and benefit from Jennifer's\n\nwaiver of her homestead right in the New Century mortgage because\n\nfunds from the First Franklin loan -- obtained in 2004 -- were\n\nused to pay off the New Century loan. Jennifer pleaded\n\ncounterclaims asserting the priority of her homestead right over\n\nDeutsche Bank's interest.5 The parties eventually cross-moved for\n\nsummary judgment.\n\n Jennifer argued that she had a homestead right in the\n\nProperty from the date of its purchase by virtue of her marriage\n\nto William and that the divorce decree did not automatically\n\nterminate her right. She also argued that Deutsche Bank could not\n\ndemonstrate the presence of every element required for equitable\n\nsubrogation under New Hampshire law. In particular, Jennifer\n\n\n 5\n Jennifer later voluntarily dismissed counterclaims for\nintentional and negligent infliction of emotional distress.\n\n\n - 6 -\n\fasserted that there was a material factual dispute concerning\n\nwhether the First Franklin loan funds were used to pay off the New\n\nCentury loan. She further argued that it would be unjust for\n\nDeutsche Bank to rely on the homestead waiver in the New Century\n\nmortgage given her contention that she had not in fact signed that\n\nmortgage.\n\n For its part, Deutsche Bank argued that Jennifer's\n\nhomestead right in the Property was extinguished or waived by the\n\ntransfers after its purchase -- that is, the transfers of the\n\nProperty between William, Jennifer, and a family trust before it\n\nwas deeded back to William in 2007 -- or by the divorce decree.\n\nAs to equitable subrogation, Deutsche Bank contended that all\n\nnecessary elements were satisfied, and that Jennifer could not\n\ncontest her signature on the New Century mortgage because she had\n\nnot done so in the prior state litigation.\n\n The district court concluded that factual disputes\n\nremained concerning the effect of the divorce decree, and it\n\ntherefore denied the parties' cross-motions for summary judgment\n\nand scheduled a bench trial. In her pretrial briefing, Jennifer\n\nargued for the first time that Deutsche Bank could not invoke\n\nequitable subrogation because it had not shown that William\n\nobtained the First Franklin loan by fraud or other egregious\n\nmisconduct. In response, Deutsche Bank argued that fraud is not\n\na precondition to equitable subrogation under New Hampshire law.\n\n\n - 7 -\n\f In a pretrial order issued without prior notice to the\n\nparties, the district court explained that it viewed the\n\napplicability of equitable subrogation as \"an issue of law that\n\ncan be resolved without further factual development.\"\n\nAccordingly, the court ruled that, \"as a matter of [New Hampshire]\n\nlaw, the circumstances in this case do not meet the threshold\n\nrequirement of fraud or misconduct that would support the use of\n\nequitable subrogation to overcome the protections provided by\" the\n\nhomestead right.\n\n The district court also cancelled the bench trial on the\n\nremaining issue concerning the effect of the divorce decree on\n\nJennifer's homestead right. However, it granted Deutsche Bank's\n\nrequest to further brief the equitable subrogation issue and agreed\n\nto reconsider the viability of the claim. The court further stated\n\nthat the bench trial would be rescheduled \"[i]f the equitable\n\nsubrogation claim is found to be viable.\"\n\n Deutsche Bank then moved for reconsideration of the\n\nequitable subrogation decision, arguing that fraud is not an\n\nelement of equitable subrogation and that, in any event, Jennifer\n\nhad forfeited the fraud argument by not raising it earlier. The\n\ndistrict court denied the motion. Notably, the court directly\n\nengaged with Deutsche Bank's arguments instead of taking the\n\nstandard approach to a motion for reconsideration and considering\n\n\n\n\n - 8 -\n\fonly whether the Bank had identified flaws in the original\n\ndecision.\n\n After the parties submitted briefs on whether the\n\ndivorce extinguished Jennifer's homestead right, the district\n\ncourt issued a final order holding that (1) Jennifer's homestead\n\nright was not extinguished by the divorce, (2) her homestead right\n\ntakes priority over Deutsche Bank's mortgage, and, hence, (3)\n\n\"Jennifer may assert her homestead interest in the [P]roperty\n\n. . . if and when Deutsche Bank forecloses.\" The court, however,\n\ndismissed Jennifer's quiet title counterclaim because she had not\n\ndemonstrated that \"title to the [P]roperty can be settled in her\n\nexclusive of Deutsche Bank's mortgage interest.\" Deutsche Bank\n\ntimely appealed, contending that the district court erred in (1)\n\n\"sua sponte\" dismissing the Bank's equitable subrogation claim on\n\nthe basis that it had not demonstrated the First Franklin mortgage\n\nwas acquired by fraud, and (2) ruling that Jennifer has a homestead\n\nright superior to the Bank's mortgage.\n\n Jennifer subsequently moved for attorney's fees and\n\ncosts pursuant to Federal Rule of Civil Procedure 54(d). The court\n\ngranted her uncontested request for costs but denied her request\n\nfor attorney's fees. We consolidated Jennifer's timely appeal\n\nwith Deutsche Bank's appeal.\n\n\n\n\n - 9 -\n\f II.\n\nA. The District Court's \"Sua Sponte\" Rulings\n\n Deutsche Bank contends that the district court erred in\n\n\"sua sponte\" (1) dismissing its claim for a declaratory judgment\n\nthat it is entitled to equitable subrogation, and (2) cancelling\n\nthe bench trial. In other words, Deutsche Bank faults the court\n\nfor taking these actions on its own initiative and without prior\n\nnotice to the parties.\n\n The district court arguably caught Deutsche Bank\n\nunawares when it dismissed the equitable subrogation claim based\n\non the pretrial briefing. However, even assuming error, we discern\n\nno prejudice to the Bank. See Watchtower Bible & Tract Soc'y of\n\nN.Y., Inc. v. Municipality of San Juan, 773 F.3d 1, 13 (1st Cir.\n\n2014) (\"[A] sua sponte dismissal will not be set aside where the\n\naggrieved party cannot show any prejudice.\"). Deutsche Bank\n\naddressed Jennifer's argument that fraud was required to apply\n\nequitable subrogation in its pretrial briefs and was given the\n\nopportunity to provide additional briefing after the court\n\ndismissed the equitable subrogation claim. Although Deutsche\n\nBank's post-dismissal brief was styled as a motion for\n\nreconsideration, the district court did not hold Deutsche Bank to\n\nthe stringent standard for this type of motion. See Palmer v.\n\nChampion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (noting that a\n\nparty seeking reconsideration of a legal ruling must demonstrate\n\n\n - 10 -\n\fthat \"the rendering court committed a manifest error of law\").\n\nRather, the district court addressed the merits of Deutsche Bank's\n\narguments and again concluded that equitable subrogation did not\n\napply as a matter of law. Thus, even assuming the arguable\n\nproposition that the court erred by initially dismissing the\n\nequitable subrogation claim sua sponte, the court adequately\n\ncorrected any error.6\n\n Regarding the district court's decision to cancel the\n\nbench trial, the simple fact is that the district court did so\n\nafter a pretrial conference at which, according to the district\n\ncourt, \"counsel and the court agreed that there are no factual\n\nissues remaining in the case for the bench trial.\" To the extent\n\nDeutsche Bank now contends that the court misunderstood or\n\nmisrepresented the Bank's position, it has waived that argument by\n\nfailing to raise it before the district court and by failing to\n\nproperly develop the record on appeal. See Barilaro v. Consol.\n\nRail Corp., 876 F.2d 260, 263 (1st Cir. 1989) (stating that we\n\n\"cannot use counsel's allegations regarding what occurred at the\n\npretrial conference as grounds for appeal\").\n\n\n\n\n 6 We are unconvinced by Deutsche Bank's analogy of the\ndistrict court's actions to those of the court in Berkovitz v.\nHBO, Inc., 89 F.3d 24 (1st Cir. 1996). Unlike in Berkovitz, the\ndistrict court did not substantially change the rationale for its\nruling from the initial dismissal to the denial of Deutsche Bank's\nmotion for reconsideration. See id. at 30-31.\n\n\n - 11 -\n\fB. Jennifer's Homestead Right\n\n Deutsche Bank argues that the district court erred in\n\ndetermining that its mortgage interest is subject to Jennifer's\n\nhomestead right in the Property. Before this court, the parties\n\ndo not appear to dispute, putting aside the equitable subrogation\n\nissue, that Jennifer had a homestead right in the Property, by\n\nvirtue of her marriage to William and continuous occupancy, at\n\nleast until the date of the divorce decree.7 Deutsche Bank contends\n\nthat she lost her homestead right either because it was terminated\n\nby the divorce decree or because she waived the right through her\n\nacceptance of certain language in the decree. The district court\n\nin effect concluded that Jennifer retained her homestead right\n\nbecause the decree transferred ownership of the Property to her,\n\nwithout the need for any subsequent conveyance. We review the\n\ndistrict court's conclusion, based on its interpretation of the\n\ndivorce decree and New Hampshire law, de novo.8\n\n\n\n 7 The district court determined that none of the transfers\nprior to the divorce extinguished Jennifer's homestead right.\nDeutsche Bank does not press the issue on appeal.\n 8 Under New Hampshire law, \"[q]uestions of intent [in a\ndivorce decree] are to be resolved by the trier of fact, whose\nfindings will be upheld if supported by the evidence, while the\nmeaning of the language in the agreement is a matter of law.\"\nMiller v. Miller, 578 A.2d 872, 873 (N.H. 1990) (citation omitted)\n(internal quotation marks omitted). We take this to mean that\nwhere, as here, the trial court's interpretation of the parties'\nintent is based on the face of the agreement, the appellate court\nreviews this interpretation de novo as a conclusion of law.\n\n\n\n - 12 -\n\f 1. New Hampshire's Homestead Law\n\n The New Hampshire homestead right, or homestead\n\nexemption, protects $120,000 of the value of a person's homestead\n\nfrom creditors, N.H. Rev. Stat. Ann. § 480:1, with certain\n\nstatutorily defined exceptions, see id. § 480:4, which the parties\n\ndo not contend are relevant to this appeal.9 A homestead is the\n\nplace a person occupies as his or her home; \"actual residency or\n\noccupancy,\" excluding temporary absences, is essential to the\n\ncreation of a homestead because \"[t]he purpose of the homestead\n\nexemption is 'to secure to debtors and their families, the shelter\n\nof the homestead roof[,] not to exempt mere investments in real\n\nestate, or the rents and profits derived therefrom.'\" Stewart v.\n\nBader, 907 A.2d 931, 943 (N.H. 2006)(quoting Austin v. Stanley, 46\n\nN.H. 51, 52 (1865)). The \"shelter of the homestead roof\" does not\n\nmean a person is entitled to keep his or her home in all\n\ncircumstances. Rather, in the event of a forced sale, a person\n\n\n\n\n 9\n Before the district court, the parties appeared to dispute\nwhether Jennifer could claim $120,000 or only the lesser amount --\n$30,000 -- that applied at the time she first acquired a homestead\nright in the Property. See In re Bartlett, 168 B.R. 488, 494-98\n(Bankr. D.N.H. 1994) (discussing whether an increase in the\nstatutory homestead amount can be \"retroactively\" applied). We\nleave that issue for the appropriate court to decide if and when\nJennifer seeks a set-off in the amount of her homestead right.\n\n\n - 13 -\n\fwith a homestead right is entitled to a set-off in the statutorily\n\ndefined amount.10 See N.H. Rev. Stat. Ann. § 480:7.\n\n When a married couple resides together in a home, the\n\nhomestead right \"extends to . . . both spouses, even when only one\n\nspouse legally owns the homestead.\" Maroun v. Deutsche Bank Nat'l\n\nTr. Co., 109 A.3d 203, 208 (N.H. 2014) (citing N.H. Rev. Stat.\n\nAnn. § 480:3-a); see also N.H. Rev. Stat. Ann. § 529:20-a. The\n\nhomestead right of a property owner's spouse is established once\n\nhe or she physically occupies the subject property. Walbridge v.\n\nEstate of Beaudoin, 48 A.3d 964, 966 (N.H. 2012). The spouse's\n\nhomestead right is then ordinarily exempt from any subsequent\n\nattachment or encumbrance; however, the right is not exempt from\n\nany attachment or encumbrance that predates its establishment.\n\nId.; see also Mason v. Wells Fargo Bank, N.A., No. 14-cv-77-JL,\n\n2014 WL 2737601, at *3 (D.N.H. June 17, 2014) (concluding that a\n\nperson who established a homestead right after the execution of a\n\nmortgage on a property \"took the property subject to\" the mortgage\n\nand \"cannot invoke her homestead right as a defense to enforcement\n\nof the mortgage\").\n\n\n\n\n 10 Alternatively, a person with a homestead right can seek an\ninjunction to prevent a forced sale if the equity in the home is\nnot sufficient to cover both the creditor's claim and the homestead\nright. See, e.g., Deyeso v. Cavadi, 66 A.3d 1236, 1238 (N.H.\n2013).\n\n\n - 14 -\n\f The homestead right also can be waived, that is,\n\nvoluntarily or intentionally relinquished. Maroun, 109 A.3d at\n\n228. Although evidence of waiver must be \"unequivocal,\" \"if a\n\nmortgage document is signed by both spouses, 'with the formalities\n\nrequired for the conveyance of land,' no further evidence of waiver\n\nis required.\" Id. (quoting N.H. Rev. Stat. Ann. § 480:5-a).\n\n 2. Property Distribution by Divorce Decree\n\n In New Hampshire, \"[t]he question of whether and to what\n\nextent property rights have been transferred from one person to\n\nanother generally is resolved upon a determination of the\n\ntransferor's intent.\" Mamalis v. Bornovas, 297 A.2d 660, 662 (N.H.\n\n1972). When property rights are transferred in a stipulated\n\nagreement, such as in the form of a stipulated divorce decree,\n\n\"absent fraud, duress, mutual mistake, or ambiguity, the parties'\n\nintentions will be gleaned from the face of the agreement.\" Miller\n\nv. Miller, 578 A.2d 872, 873 (N.H. 1990). Courts consider \"the\n\nplain meaning of the language viewed in the context of the entire\n\ndecree[,]\" Matter of Oligny, 153 A.3d 194, 196 (N.H. 2016), and\n\nconstrue \"[s]ubsidiary clauses . . . so as not to conflict with\n\nthe primary purpose of the decree,\" id. (quoting Bonneville v.\n\nBonneville, 702 A.2d 823, 825 (N.H. 1997)). See also Sommers v.\n\nSommers, 742 A.2d 94, 99 (N.H. 1999) (\"We consider the intent of\n\nthe parties as expressed in the language of the stipulation.\").\n\n\n\n\n - 15 -\n\f Broadly speaking, a major purpose of a divorce decree\n\n\"is to establish a final and equitable distribution of the marital\n\nproperty.\" Bonneville, 702 A.2d at 825; see also McSherry v.\n\nMcSherry, 606 A.2d 311, 313 (N.H. 1992) (\"[A] property settlement\n\nin a divorce decree is 'a final distribution of a sum of money or\n\na specific portion of the spouses' property . . . [and] is not\n\nsubject to judicial modification on account of changed\n\ncircumstances.\" (alteration in original) (quoting Stebbins v.\n\nStebbins, 438 A.2d 295, 297 (N.H. 1981))); see also N.H. Rev. Stat.\n\nAnn. § 458:16-a (providing that \"[w]hen a dissolution of a marriage\n\nis decreed, the court may order an equitable division of property\n\nbetween the parties\" and specifying that \"[p]roperty shall include\n\nall tangible and intangible property and assets, real or personal,\n\nbelonging to either or both parties, whether title to the property\n\nis held in the name of either or both parties\"). Given that\n\ndivorce decrees establish a final division of property, it is\n\nunsurprising that such decrees can effectuate a conveyance of\n\npersonal or real property. See Swett v. Swett, 49 N.H. 264, 264\n\n(1870) (holding that an interest in real estate \"vested in the\n\nwife, 'by the mere force of the [divorce] decree,' 'as effectually\n\nas the same could be done by any conveyance of the husband\n\nhimself'\" (quoting Whittier v. Whittier, 31 N.H. 452, 458 (1855)));\n\nsee also Johnson v. Coe, 697 A.2d 939, 943 (N.H. 1997) (\"The award\n\nof the . . . house to the plaintiff in the divorce decree was a\n\n\n - 16 -\n\fproperty settlement and, as such, not modifiable.\"); Bonneville,\n\n702 A.2d at 826 (holding that a stock transfer in a divorce decree\n\noccurred \"by operation of law\"); Sommers, 742 A.2d at 99 (holding\n\nthat language in a divorce decree \"creat[ed] an immediate property\n\ninterest\" in a vehicle).\n\n Not all conveyances in a divorce decree are\n\nself-executing. That is, a stipulated conveyance in a divorce\n\ndecree may require a future occurrence or further action by the\n\nparties (a condition precedent) to take effect. See Spellman v.\n\nSpellman, 614 A.2d 1054, 1055 (N.H. 1992). However, \"[b]ecause\n\nconditions precedent are disfavored, [courts] infer that the\n\nparties intended a condition precedent only where the plain\n\nlanguage of the decree or stipulation requires such a\n\nconstruction.\" Sommers, 742 A.2d at 99 (emphasis added); see also\n\nUnited States v. Baker, No. 13-cv-213-PB, 2014 WL 4199120, at *3\n\n(D.N.H. Aug. 22, 2014)(\"The husband and wife's subsequent failure\n\nto comply with a provision of the divorce judgment -- in this case,\n\nthe execution and recording of a deed to the . . . properties --\n\nwill not invalidate or delay the conveyance unless the parties\n\nclearly intended for the provision to serve as a condition\n\nprecedent.\"). Therefore, under New Hampshire law, a divorce decree\n\nmay effectuate an immediate property transfer where its language\n\nplainly demonstrates an intention to do so. See Baker,\n\n2014 WL 4199120, at *3 (\"When a 'stipulation between the parties\n\n\n - 17 -\n\f. . . incorporated and merged into the divorce decree' 'clearly\n\nand affirmatively expresse[s] their intention' to convey a real\n\nproperty interest, that interest vests in the grantee 'on the\n\neffective date of the divorce decree.'\" (alteration and omission\n\nin original) (quoting Mamalis, 297 A.2d at 663)).\n\n 3. Application of the Law\n\n The district court correctly determined that Jennifer\n\nretained her homestead right under the plain language of the\n\ndivorce decree, which clearly indicates the parties' intention\n\nthat ownership of the Property immediately transfer to Jennifer:\n\n\"Jennifer Pike is awarded the marital homestead located at 34\n\nDogwood Lane, New London, New Hampshire[,] free and clear of any\n\ninterest of William Pike.\" This declarative statement, with no\n\nmention of any contingency or condition precedent, is the type of\n\nlanguage that the New Hampshire Supreme Court has read to\n\neffectuate an immediate property transfer. See Bonneville, 702\n\nA.2d at 826; Sommers, 742 A.2d at 99; cf. Spellman, 614 A.2d at\n\n236-37 (concluding that a stipulated award of the marital home was\n\nnot \"self-executing\" because the language of the stipulation\n\nspecifically made the transfer contingent on, among other things,\n\nan appraisal of the home).\n\n The other provisions regarding the \"marital homestead\"\n\ndo not negate the parties' clear intent to transfer ownership to\n\nJennifer. See Matter of Oligny, 153 A.3d at 196 (stating that\n\n\n - 18 -\n\f\"[s]ubsidiary clauses\" must be read \"so as not to conflict with\n\nthe primary purpose of the decree\") (quoting Bonneville, 702 A.2d\n\nat 825). Agreeing to share the proceeds from a potential sale of\n\nthe home once their son graduates high school, for example, is not\n\nincompatible with Jennifer's ownership. Nor does the decree's\n\ngeneral provision that the parties \"shall sign and deliver to the\n\nother party any document that is needed to fulfill or accomplish\n\nthe terms of this Decree\" evince an intention to make a deed\n\ntransfer a condition precedent to Jennifer's ownership of the\n\nProperty.11\n\n There also is no unequivocal evidence that Jennifer\n\nwaived her homestead right by agreeing to certain language in the\n\ndecree. See Maroun, 109 A.3d at 228-29. Deutsche Bank makes much\n\nof the fact that the divorce decree mentions the possibility of a\n\nforeclosure on the Property. As discussed above, however, a\n\npotential foreclosure does not necessarily negate a property\n\nowner's homestead right. Rather, a homestead right superior to a\n\nmortgage may simply require the mortgagee to pay the holder of the\n\n\n\n\n 11 The district court noted that William later deeded the\nProperty to Jennifer in support of its conclusion that the parties\nintended to transfer ownership of the Property to her. However,\ncontrary to Deutsche Bank's contention, the district court did not\nsuggest that the deed transfer was a condition precedent. It\nexpressly held that \"Jennifer's right to the [P]roperty became\neffective immediately when the divorce decree issued on July 3,\n2013.\"\n\n\n\n - 19 -\n\fright from the proceeds of a foreclosure sale. See supra section\n\nII.B.1. Therefore, the decree's mention of a possible foreclosure\n\ndoes not indicate that Jennifer relinquished her homestead right.\n\nFor these reasons, the district court did not err in concluding\n\nthat Jennifer enjoys a homestead right in the Property with\n\npriority over Deutsche Bank's mortgage.\n\nC. Equitable Subrogation\n\n Deutsche Bank's equitable subrogation argument\n\nessentially goes as follows: First Franklin discharged the debt\n\nowed to New Century and thus stood to benefit from Jennifer's\n\nwaiver of her homestead right in the New Century mortgage. As\n\nsuccessor to First Franklin, Deutsche Bank can stand in First\n\nFranklin's shoes, and thus benefit from Jennifer's waiver. In\n\nother words, Deutsche Bank does not have to recognize Jennifer's\n\nclaimed homestead right.12\n\n Deutsche Bank further contends that the district court\n\nerred in dismissing the Bank's equitable subrogation claim because\n\n(1) Jennifer waived the argument that equitable subrogation cannot\n\nbe applied to defeat a homestead right in the absence of fraud,\n\nand (2) New Hampshire law does not, in fact, require fraud. As to\n\n\n\n 12 To be precise, Deutsche Bank argues that it is entitled\nto equitable subrogation \"as to the amount that [First Franklin]\npaid to discharge the [New Century] [m]ortgage.\" In practical\nterms, this would mean that Deutsche Bank does not have to pay\nJennifer anything in the event of a foreclosure.\n\n\n - 20 -\n\f\"waiver,\" we are unconvinced that Jennifer \"waived\" or \"forfeited\"\n\nher legal argument given that she raised it at a time when Deutsche\n\nBank still had an opportunity to meaningfully respond and before\n\nthe district court had rendered judgment.13 As to the merits of\n\nher claim, we must first outline the relevant law in New Hampshire.\n\n 1. Background Law\n\n Under New Hampshire law, equitable subrogation \"is a\n\nbroad doctrine [that] 'applies where one who has discharged the\n\ndebt of another may, under certain circumstances, succeed to the\n\nrights and position of the satisfied creditor.'\" Chase v.\n\nAmeriquest Mortg. Co., 921 A.2d 369, 376 (N.H. 2007) (quoting 73\n\nAm. Jur. 2d Subrogation § 5 (2001)). For equitable subrogation to\n\napply, certain conditions \"must be met: (1) the subrogee [the\n\nentity who discharged the debt] cannot have acted as a volunteer;\n\n(2) the subrogee must have paid a debt upon which it was not\n\nprimarily liable; (3) the subrogee must have paid the entire debt;\n\nand (4) subrogation may not work any injustice to the rights of\n\nothers.\" Id.\n\n\n\n\n 13 Deutsche Bank specifically argues that Jennifer forfeited\nthe fraud contention by failing to plead it as an affirmative\ndefense, but the Bank forfeited this argument by failing to raise\nit in its opening brief. See Sparkle Hill, Inc. v. Interstate Mat\nCorp., 788 F.3d 25, 29 (1st Cir. 2015) (noting that arguments first\nasserted in a reply brief ordinarily are deemed waived or\nforfeited).\n\n\n\n - 21 -\n\f The subrogee has the burden of demonstrating an\n\nentitlement to equitable subrogation, \"which generally includes\n\npro[ving] . . . [t]he existence and applicability of equitable\n\nprinciples or contractual provisions as to subrogation and\n\nreimbursement.\" Wolters v. Am. Republic Ins. Co., 827 A.2d 197,\n\n200 (N.H. 2003) (second alteration in original) (quoting 16 L.\n\nRuss & T. Segalla, Couch on Insurance 3d § 222:7 (2000)).\n\nCrucially, the New Hampshire Supreme Court has held that equitable\n\nprinciples, such as equitable subrogation, \"may be applied to reach\n\nbeyond the literal language of the exceptions\" to the homestead\n\nright -- that is, to create a new exception to application of the\n\nhomestead right -- \"only when there has been fraud, deception, or\n\nother misconduct in the procurement of funds spent on a homestead.\"\n\nDeyeso v. Cavadi, 66 A.3d 1236, 1241 (N.H. 2013)(emphasis added).\n\n 2. Application of the Law\n\n On de novo review, we conclude that the district court\n\ncorrectly applied New Hampshire law and declined to apply equitable\n\nsubrogation to defeat Jennifer's homestead right because there was\n\nno \"fraud, deception, or other misconduct in the procurement of\n\nfunds spent on [the] homestead.\" Deyeso, 66 A.3d at 1241.14\n\n\n 14\n Although Deutsche Bank faults the district court for\noffering a shifting rationale for its ruling, we disagree with\nthis characterization. In both of its orders, the district court\nread Deyeso to hold that equitable principles cannot be invoked to\n\"reach beyond the literal language of the homestead exceptions\" in\nthe absence of fraud. Contrary to Deutsche Bank's suggestion, the\n\n\n - 22 -\n\fDeutsche Bank's fallback argument is that even if the district\n\ncourt correctly interpreted New Hampshire law, it could have --\n\nand should have -- exercised its equitable powers to apply\n\nequitable subrogation in the Bank's favor. We need not address\n\nthe complex question of whether and in what circumstances a federal\n\ncourt sitting in diversity may order equitable relief that is not\n\nauthorized under state law. See Guar. Tr. Co. of N.Y. v. York,\n\n326 U.S. 99, 106 (1945) (\"[A] federal court may afford an equitable\n\nremedy for a substantive right recognized by a State even though\n\na State court cannot give it.\"); Bogosian v. Woloohojian Realty\n\nCorp., 923 F.2d 898, 904 (1st Cir. 1991) (noting conflicting\n\ncircuit authority regarding the source of law for determining the\n\nequitable powers of a federal court sitting in diversity). Even\n\nassuming the district court had the ability to apply equitable\n\nsubrogation outside the parameters of New Hampshire law, it was\n\nnot compelled to do so, and it certainly did not abuse its\n\ndiscretion by declining to use its equitable powers in a manner at\n\nodds with state law. See Morgan v. Kerrigan, 523 F.2d 917, 921\n\n(1st Cir. 1975) (per curiam) (\"This court's review of orders issued\n\nin the exercise of the district court's equitable powers is limited\n\n\n\n\ndistrict court never held that fraud is an element of equitable\nsubrogation or a precondition to applying equitable subrogation in\nall situations.\n\n\n - 23 -\n\fto a determination whether there has been an abuse of\n\ndiscretion.\").15\n\n III.\n\n In her cross-appeal, Jennifer contends that she is\n\nentitled to attorney's fees based on a state statute and a\n\nprovision in the Deutsche Bank mortgage. The statute provides, in\n\nrelevant part, as follows:\n\n If a retail installment contract or evidence of\n indebtedness provides for attorney's fees to be awarded\n to the retail seller, lender or creditor in any action,\n suit or proceeding against the retail buyer, borrower or\n debtor involving the sale, loan or extension of credit,\n such contract or evidence of indebtedness shall also\n provide that:\n\n I. Reasonable attorney's fees shall be awarded to the\n buyer, borrower or debtor if he prevails in\n\n (a) Any action, suit or proceeding brought by the retail\n seller, lender or creditor; or\n\n (b) An action brought by the buyer, borrower or debtor[.]\n\nN.H. Rev. Stat. Ann. § 361-C:2 (emphases added). The Deutsche\n\nBank mortgage provides:\n\n\n\n\n 15 We recognize that the district court, at various places in\nits two orders related to equitable subrogation, seems to suggest\nthat its hands were tied by state law. However, we understand the\ndistrict court's rulings ultimately to rest on its determination\nthat equity would not be served by applying equitable subrogation\nin a situation where it would not be applied by state courts. See,\ne.g., Deutsche Bank Nat'l Tr. Co. v. Pike, No. 15-cv-304-JD, 2017\nWL 2608727, at *3 (D.N.H. Feb. 12, 2017) (\"Contrary to Deutsche\nBank's theory, [Jennifer] would not receive a windfall through her\nhomestead interest but instead would receive the protection\nintended and provided by [the homestead statute].\").\n\n\n - 24 -\n\f 25. Attorneys' Fees. Pursuant to . . . § 361-C:2, in\n the event that Borrower shall prevail in (a) any action,\n suit or proceeding, brought by Lender, or (b) an action\n brought by Borrower, reasonable attorneys' fees shall be\n awarded to Borrower.\n\n(Emphases added.) Jennifer did not sign the First Franklin, now\n\nDeutsche Bank, mortgage, and William is listed as the sole\n\n\"borrower.\" The term is not defined in the mortgage or in section\n\n361-C, but Jennifer concedes that she is not the \"borrower\" for\n\npurposes of the mortgage.\n\n The district court concluded that Jennifer is not\n\nentitled to attorney's fees under the statutory provision and the\n\nmortgage precisely because she \"is not the borrower.\" The court\n\nfurther held that even if Jennifer could be considered a \"debtor,\"\n\nthe statute and the mortgage provision do not apply because\n\nDeutsche Bank did not sue her for breach of the note or mortgage.\n\nNevertheless, on appeal, Jennifer presses the argument that she is\n\na \"debtor\" for purposes of the mortgage and, as such, is entitled\n\nto attorney's fees pursuant to the mortgage provision and section\n\n361-C:2. We generally review the district court's denial of\n\nattorney's fees for abuse of discretion but review any underlying\n\nconclusions of law de novo. In re Volkswagen & Audi Warranty\n\nExtension Litig., 692 F.3d 4, 13 (1st Cir. 2012).\n\n Deutsche Bank raises a plethora of reasons why Jennifer\n\nis not entitled to attorney's fees under section 361-C:2 and the\n\nmortgage. It suffices to say, however, that we essentially agree\n\n\n - 25 -\n\fwith the district court's straightforward analysis.16 The court\n\ncorrectly determined that Jennifer is not entitled to the benefit\n\nof the mortgage's attorney's fees provision, which is expressly\n\nlimited to the \"borrower.\" Section 361-C:2 requires reciprocal\n\ntreatment of both sides of a debt contract -- here, the mortgagee\n\nand William -- but does not rewrite the mortgage's terms to render\n\nthe Bank responsible for the attorney's fees of a third party.\n\nThe district court did not commit legal error or otherwise abuse\n\nits discretion in denying her fee request.17\n\n\n\n\n 16Among its other arguments, Deutsche Bank contends that the\ndistrict court did not have jurisdiction to consider Jennifer's\nfee request. Because Jennifer's entitlement to attorney's fees is\neasily resolved on the merits, we do not address the jurisdictional\nissue. See Cozza v. Network Assocs., Inc., 362 F.3d 12, 15 (1st\nCir. 2004) (\"The rule is well established in this Circuit that\nresolution of a complex jurisdictional issue may be avoided when\nthe merits can easily be resolved in favor of the party challenging\njurisdiction.\").\n\n 17 We note that it is somewhat disingenuous for Jennifer to\ncontend she has rights arising under the mortgage given that she\nhas repeatedly disavowed any connection to the mortgage, both in\nstate court and before the district court. Courts generally do\nnot approve of such attempts to have it both ways. See RFF Family\nP'ship, LP v. Ross, 814 F.3d 520, 527 (1st Cir. 2016) (discussing\nthe doctrine of judicial estoppel, which \"prevent[s] a litigant\nfrom taking a litigation position that is inconsistent with a\nlitigation position successfully asserted by him in an earlier\nphase of the same case or in an earlier court proceeding\"\n(alteration in original) (quoting Perry v. Blum, 629 F.3d 1, 8\n(1st Cir. 2010))).\n\n\n - 26 -\n\f ***\n\n For the foregoing reasons, we affirm as to both appeals.\n\nEach side shall bear its own costs.\n\n So ordered.\n\n\n\n\n - 27 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368994/", "author_raw": "LIPEZ, Circuit Judge"}]} | TORRUELLA | LIPEZ | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591741/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR FFMLT TRUST 2005-FF2, Mortgage Pass-Through Certificates, Series 2005-FF2, Plaintiff, Appellant/Cross-Appellee, v. Jennifer L. PIKE, Defendant, Appellee/Cross-Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNos. 17-1815, 17-1936\n\n\n DEUTSCHE BANK NATIONAL TRUST COMPANY,\n Trustee for FFMLT Trust 2005-FF2,\n Mortgage Pass-Through Certificates, Series 2005-FF2,\n\n Plaintiff, Appellant/Cross-Appellee,\n\n v.\n\n JENNIFER L. PIKE,\n\n Defendant, Appellee/Cross-Appellant.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]\n\n\n Before\n\n Torruella, Lipez, and Thompson,\n Circuit Judges.\n\n\n Kevin P. Polansky, with whom Christine M. Kingston and Nelson\nMullins Riley Scarborough LLP were on brief, for appellant.\n Stephen T. Martin, with whom The Law Offices of Martin &\nHipple, PLLC was on brief, for appellee.\n\n\n February 19, 2019\n\f LIPEZ, Circuit Judge. In this diversity case, Deutsche\n\nBank National Trust Company contends that the district court erred\n\nin concluding that its mortgage interest in a property in New\n\nLondon, New Hampshire, is subject to a homestead right of the\n\nproperty's resident, Jennifer Pike. In a cross-appeal, Pike\n\ncontends that the district court erred in denying her post-judgment\n\nmotion for attorney's fees. After careful review, we affirm both\n\nthe rejection of Deutsche Bank's claims and the denial of Pike's\n\nrequest for attorney's fees.\n\n I.\n\nA. Factual Background\n\n William and Jennifer Pike were married in 2000.1 In\n\n2001, William bought the property at 34 Dogwood Lane in New London\n\n(\"the Property\"). Only William was listed on the deed, but\n\nJennifer continuously resided at the address from the time of\n\npurchase through the filing of the present suit. In 2003, William\n\nobtained a loan from New Century Mortgage Corporation secured by\n\na mortgage on the Property. Both William's and Jennifer's\n\nsignatures were on this mortgage, which included a provision\n\nstating that \"[b]orrower[] and [b]orrower's spouse . . . release\n\nall rights of homestead in the Property.\" Jennifer disputes that\n\n\n\n\n 1For ease of reference, we will refer to William Pike as\n\"William\" and Jennifer Pike as \"Jennifer.\"\n\n\n - 2 -\n\fshe signed the New Century mortgage and asserts that she only later\n\nbecame aware of its existence.\n\n In late 2004, William obtained another loan, secured by\n\nthe Property, from First Franklin Financial Corporation, pursuant\n\nto which he again waived his homestead right. The parties agree\n\nthat William did not obtain the First Franklin loan through fraud\n\nor other egregious misconduct. Jennifer did not sign the note or\n\nmortgage.2 A few months later, the New Century loan balance was\n\npaid off and that mortgage was discharged.\n\n The Pikes subsequently executed several transfers of the\n\nProperty between William, Jennifer, and a family trust. The\n\nProperty was deeded back to William in 2007.3 The First Franklin\n\nmortgage was assigned to Deutsche Bank in 2009.4\n\n The Pikes were divorced by decree on July 3, 2013. The\n\ndecree included the following provision regarding the Property\n\n\n\n\n 2 Although the First Franklin mortgage document stipulates\nthat the borrower and the \"borrower's spouse\" release their\nhomestead rights, the parties appear to assume that this provision\nwould not be effective against a non-signatory spouse, and we\nproceed on that assumption.\n\n 3 William filed for bankruptcy subsequent to these transfers,\nbut the parties do not contend that his bankruptcy is relevant to\nthe issues on appeal.\n\n 4 The appellant's full name is Deutsche Bank National Trust\nCompany, Trustee for FFMLT Trust 2005 FF2, Mortgage Pass-Through\nCertificates, Series 2005-FF2.\n\n\n - 3 -\n\f(strikethroughs in original; initialed, handwritten addition in\n\nitalics):\n\n 14. Marital Homestead:\n\n A. Jennifer Pike is awarded the exclusive use and\n\n possession of the marital homestead located at 34\n\n Dogwood Lane, New London, New Hampshire free and clear\n\n of any interest of William Pike.\n\n B. Jennifer may remain in the home until it goes\n\n into foreclosure, or [their son] graduates high school.\n\n C. If the house does not go [into] foreclosure and\n\n the parties can sell the home, the parties shall list\n\n the house for sale once [their son] graduates high\n\n school. The Parties will share equally any equity in\n\n the home.\n\n D. The Parties will share equally the cost of any\n\n necessary home repairs over $500. If a repair is\n\n necessary, Jennifer will inform William of the repair\n\n via email and provide him an explanation of the repair\n\n needed and include a quote for the work, if possible.\n\n William will forward his share of the repair cost to the\n\n contractor directly if possible. If that is not\n\n possible, he will give his share of the repair cost to\n\n Jennifer within 30 days of the repair. [With respect to\n\n repairs necessary to preserve the habitability of the\n\n\n - 4 -\n\f house, Jennifer will give notice to Bill of the need,\n\n and upon Bill's review, and inspection, and agreement\n\n that the repair is necessary, Bill shall share up to 50%\n\n of the cost of the Repair.]\n\nThe decree also provides, \"[e]xcept as otherwise provide[d]\n\nherein, each party shall sign and deliver to the other party any\n\ndocument that is needed to fulfill or accomplish the terms of this\n\nDecree within thirty (30) days of the request to do so.\"\n\n Deutsche Bank began foreclosure proceedings on the\n\nProperty on July 11, 2013. About two weeks later -- on July 26 -\n\n- William deeded the Property to Jennifer, and the deed was\n\nrecorded shortly thereafter. The deed states, \"[t]his conveyance\n\nis in conformance with [the] divorce decree in the Matter of\n\nJennifer Pike and William T. Pike, Jr.\"\n\n Jennifer subsequently filed a complaint in state court\n\nasserting a homestead right in the Property and seeking to enjoin\n\nDeutsche Bank from foreclosing. The state court entered summary\n\njudgment in Deutsche Bank's favor after determining that the Bank\n\nhad standing to foreclose, and that Jennifer's assertion of a\n\nhomestead right was premature. The New Hampshire Supreme Court\n\naffirmed. See Pike v. Deutsche Bank Nat'l Tr. Co., 121 A.3d 279\n\n(N.H. 2015).\n\n\n\n\n - 5 -\n\fB. Procedural Background\n\n Shortly after the conclusion of the litigation in state\n\ncourt, Deutsche Bank filed this suit in federal court seeking a\n\ndeclaratory judgment either that its interest in the Property is\n\nnot subject to Jennifer's homestead right (Count I), or that it is\n\nentitled to equitable subrogation \"as to the amount it paid to\n\ndischarge the prior mortgage\" (Count II). In support of its\n\nequitable subrogation claim, Deutsche Bank contends that, as\n\nsuccessor to First Franklin, it is entitled to step into the shoes\n\nof New Century -- the 2003 lender -- and benefit from Jennifer's\n\nwaiver of her homestead right in the New Century mortgage because\n\nfunds from the First Franklin loan -- obtained in 2004 -- were\n\nused to pay off the New Century loan. Jennifer pleaded\n\ncounterclaims asserting the priority of her homestead right over\n\nDeutsche Bank's interest.5 The parties eventually cross-moved for\n\nsummary judgment.\n\n Jennifer argued that she had a homestead right in the\n\nProperty from the date of its purchase by virtue of her marriage\n\nto William and that the divorce decree did not automatically\n\nterminate her right. She also argued that Deutsche Bank could not\n\ndemonstrate the presence of every element required for equitable\n\nsubrogation under New Hampshire law. In particular, Jennifer\n\n\n 5\n Jennifer later voluntarily dismissed counterclaims for\nintentional and negligent infliction of emotional distress.\n\n\n - 6 -\n\fasserted that there was a material factual dispute concerning\n\nwhether the First Franklin loan funds were used to pay off the New\n\nCentury loan. She further argued that it would be unjust for\n\nDeutsche Bank to rely on the homestead waiver in the New Century\n\nmortgage given her contention that she had not in fact signed that\n\nmortgage.\n\n For its part, Deutsche Bank argued that Jennifer's\n\nhomestead right in the Property was extinguished or waived by the\n\ntransfers after its purchase -- that is, the transfers of the\n\nProperty between William, Jennifer, and a family trust before it\n\nwas deeded back to William in 2007 -- or by the divorce decree.\n\nAs to equitable subrogation, Deutsche Bank contended that all\n\nnecessary elements were satisfied, and that Jennifer could not\n\ncontest her signature on the New Century mortgage because she had\n\nnot done so in the prior state litigation.\n\n The district court concluded that factual disputes\n\nremained concerning the effect of the divorce decree, and it\n\ntherefore denied the parties' cross-motions for summary judgment\n\nand scheduled a bench trial. In her pretrial briefing, Jennifer\n\nargued for the first time that Deutsche Bank could not invoke\n\nequitable subrogation because it had not shown that William\n\nobtained the First Franklin loan by fraud or other egregious\n\nmisconduct. In response, Deutsche Bank argued that fraud is not\n\na precondition to equitable subrogation under New Hampshire law.\n\n\n - 7 -\n\f In a pretrial order issued without prior notice to the\n\nparties, the district court explained that it viewed the\n\napplicability of equitable subrogation as \"an issue of law that\n\ncan be resolved without further factual development.\"\n\nAccordingly, the court ruled that, \"as a matter of [New Hampshire]\n\nlaw, the circumstances in this case do not meet the threshold\n\nrequirement of fraud or misconduct that would support the use of\n\nequitable subrogation to overcome the protections provided by\" the\n\nhomestead right.\n\n The district court also cancelled the bench trial on the\n\nremaining issue concerning the effect of the divorce decree on\n\nJennifer's homestead right. However, it granted Deutsche Bank's\n\nrequest to further brief the equitable subrogation issue and agreed\n\nto reconsider the viability of the claim. The court further stated\n\nthat the bench trial would be rescheduled \"[i]f the equitable\n\nsubrogation claim is found to be viable.\"\n\n Deutsche Bank then moved for reconsideration of the\n\nequitable subrogation decision, arguing that fraud is not an\n\nelement of equitable subrogation and that, in any event, Jennifer\n\nhad forfeited the fraud argument by not raising it earlier. The\n\ndistrict court denied the motion. Notably, the court directly\n\nengaged with Deutsche Bank's arguments instead of taking the\n\nstandard approach to a motion for reconsideration and considering\n\n\n\n\n - 8 -\n\fonly whether the Bank had identified flaws in the original\n\ndecision.\n\n After the parties submitted briefs on whether the\n\ndivorce extinguished Jennifer's homestead right, the district\n\ncourt issued a final order holding that (1) Jennifer's homestead\n\nright was not extinguished by the divorce, (2) her homestead right\n\ntakes priority over Deutsche Bank's mortgage, and, hence, (3)\n\n\"Jennifer may assert her homestead interest in the [P]roperty\n\n. . . if and when Deutsche Bank forecloses.\" The court, however,\n\ndismissed Jennifer's quiet title counterclaim because she had not\n\ndemonstrated that \"title to the [P]roperty can be settled in her\n\nexclusive of Deutsche Bank's mortgage interest.\" Deutsche Bank\n\ntimely appealed, contending that the district court erred in (1)\n\n\"sua sponte\" dismissing the Bank's equitable subrogation claim on\n\nthe basis that it had not demonstrated the First Franklin mortgage\n\nwas acquired by fraud, and (2) ruling that Jennifer has a homestead\n\nright superior to the Bank's mortgage.\n\n Jennifer subsequently moved for attorney's fees and\n\ncosts pursuant to Federal Rule of Civil Procedure 54(d). The court\n\ngranted her uncontested request for costs but denied her request\n\nfor attorney's fees. We consolidated Jennifer's timely appeal\n\nwith Deutsche Bank's appeal.\n\n\n\n\n - 9 -\n\f II.\n\nA. The District Court's \"Sua Sponte\" Rulings\n\n Deutsche Bank contends that the district court erred in\n\n\"sua sponte\" (1) dismissing its claim for a declaratory judgment\n\nthat it is entitled to equitable subrogation, and (2) cancelling\n\nthe bench trial. In other words, Deutsche Bank faults the court\n\nfor taking these actions on its own initiative and without prior\n\nnotice to the parties.\n\n The district court arguably caught Deutsche Bank\n\nunawares when it dismissed the equitable subrogation claim based\n\non the pretrial briefing. However, even assuming error, we discern\n\nno prejudice to the Bank. See Watchtower Bible & Tract Soc'y of\n\nN.Y., Inc. v. Municipality of San Juan, 773 F.3d 1, 13 (1st Cir.\n\n2014) (\"[A] sua sponte dismissal will not be set aside where the\n\naggrieved party cannot show any prejudice.\"). Deutsche Bank\n\naddressed Jennifer's argument that fraud was required to apply\n\nequitable subrogation in its pretrial briefs and was given the\n\nopportunity to provide additional briefing after the court\n\ndismissed the equitable subrogation claim. Although Deutsche\n\nBank's post-dismissal brief was styled as a motion for\n\nreconsideration, the district court did not hold Deutsche Bank to\n\nthe stringent standard for this type of motion. See Palmer v.\n\nChampion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (noting that a\n\nparty seeking reconsideration of a legal ruling must demonstrate\n\n\n - 10 -\n\fthat \"the rendering court committed a manifest error of law\").\n\nRather, the district court addressed the merits of Deutsche Bank's\n\narguments and again concluded that equitable subrogation did not\n\napply as a matter of law. Thus, even assuming the arguable\n\nproposition that the court erred by initially dismissing the\n\nequitable subrogation claim sua sponte, the court adequately\n\ncorrected any error.6\n\n Regarding the district court's decision to cancel the\n\nbench trial, the simple fact is that the district court did so\n\nafter a pretrial conference at which, according to the district\n\ncourt, \"counsel and the court agreed that there are no factual\n\nissues remaining in the case for the bench trial.\" To the extent\n\nDeutsche Bank now contends that the court misunderstood or\n\nmisrepresented the Bank's position, it has waived that argument by\n\nfailing to raise it before the district court and by failing to\n\nproperly develop the record on appeal. See Barilaro v. Consol.\n\nRail Corp., 876 F.2d 260, 263 (1st Cir. 1989) (stating that we\n\n\"cannot use counsel's allegations regarding what occurred at the\n\npretrial conference as grounds for appeal\").\n\n\n\n\n 6 We are unconvinced by Deutsche Bank's analogy of the\ndistrict court's actions to those of the court in Berkovitz v.\nHBO, Inc., 89 F.3d 24 (1st Cir. 1996). Unlike in Berkovitz, the\ndistrict court did not substantially change the rationale for its\nruling from the initial dismissal to the denial of Deutsche Bank's\nmotion for reconsideration. See id. at 30-31.\n\n\n - 11 -\n\fB. Jennifer's Homestead Right\n\n Deutsche Bank argues that the district court erred in\n\ndetermining that its mortgage interest is subject to Jennifer's\n\nhomestead right in the Property. Before this court, the parties\n\ndo not appear to dispute, putting aside the equitable subrogation\n\nissue, that Jennifer had a homestead right in the Property, by\n\nvirtue of her marriage to William and continuous occupancy, at\n\nleast until the date of the divorce decree.7 Deutsche Bank contends\n\nthat she lost her homestead right either because it was terminated\n\nby the divorce decree or because she waived the right through her\n\nacceptance of certain language in the decree. The district court\n\nin effect concluded that Jennifer retained her homestead right\n\nbecause the decree transferred ownership of the Property to her,\n\nwithout the need for any subsequent conveyance. We review the\n\ndistrict court's conclusion, based on its interpretation of the\n\ndivorce decree and New Hampshire law, de novo.8\n\n\n\n 7 The district court determined that none of the transfers\nprior to the divorce extinguished Jennifer's homestead right.\nDeutsche Bank does not press the issue on appeal.\n 8 Under New Hampshire law, \"[q]uestions of intent [in a\ndivorce decree] are to be resolved by the trier of fact, whose\nfindings will be upheld if supported by the evidence, while the\nmeaning of the language in the agreement is a matter of law.\"\nMiller v. Miller, 578 A.2d 872, 873 (N.H. 1990) (citation omitted)\n(internal quotation marks omitted). We take this to mean that\nwhere, as here, the trial court's interpretation of the parties'\nintent is based on the face of the agreement, the appellate court\nreviews this interpretation de novo as a conclusion of law.\n\n\n\n - 12 -\n\f 1. New Hampshire's Homestead Law\n\n The New Hampshire homestead right, or homestead\n\nexemption, protects $120,000 of the value of a person's homestead\n\nfrom creditors, N.H. Rev. Stat. Ann. § 480:1, with certain\n\nstatutorily defined exceptions, see id. § 480:4, which the parties\n\ndo not contend are relevant to this appeal.9 A homestead is the\n\nplace a person occupies as his or her home; \"actual residency or\n\noccupancy,\" excluding temporary absences, is essential to the\n\ncreation of a homestead because \"[t]he purpose of the homestead\n\nexemption is 'to secure to debtors and their families, the shelter\n\nof the homestead roof[,] not to exempt mere investments in real\n\nestate, or the rents and profits derived therefrom.'\" Stewart v.\n\nBader, 907 A.2d 931, 943 (N.H. 2006)(quoting Austin v. Stanley, 46\n\nN.H. 51, 52 (1865)). The \"shelter of the homestead roof\" does not\n\nmean a person is entitled to keep his or her home in all\n\ncircumstances. Rather, in the event of a forced sale, a person\n\n\n\n\n 9\n Before the district court, the parties appeared to dispute\nwhether Jennifer could claim $120,000 or only the lesser amount --\n$30,000 -- that applied at the time she first acquired a homestead\nright in the Property. See In re Bartlett, 168 B.R. 488, 494-98\n(Bankr. D.N.H. 1994) (discussing whether an increase in the\nstatutory homestead amount can be \"retroactively\" applied). We\nleave that issue for the appropriate court to decide if and when\nJennifer seeks a set-off in the amount of her homestead right.\n\n\n - 13 -\n\fwith a homestead right is entitled to a set-off in the statutorily\n\ndefined amount.10 See N.H. Rev. Stat. Ann. § 480:7.\n\n When a married couple resides together in a home, the\n\nhomestead right \"extends to . . . both spouses, even when only one\n\nspouse legally owns the homestead.\" Maroun v. Deutsche Bank Nat'l\n\nTr. Co., 109 A.3d 203, 208 (N.H. 2014) (citing N.H. Rev. Stat.\n\nAnn. § 480:3-a); see also N.H. Rev. Stat. Ann. § 529:20-a. The\n\nhomestead right of a property owner's spouse is established once\n\nhe or she physically occupies the subject property. Walbridge v.\n\nEstate of Beaudoin, 48 A.3d 964, 966 (N.H. 2012). The spouse's\n\nhomestead right is then ordinarily exempt from any subsequent\n\nattachment or encumbrance; however, the right is not exempt from\n\nany attachment or encumbrance that predates its establishment.\n\nId.; see also Mason v. Wells Fargo Bank, N.A., No. 14-cv-77-JL,\n\n2014 WL 2737601, at *3 (D.N.H. June 17, 2014) (concluding that a\n\nperson who established a homestead right after the execution of a\n\nmortgage on a property \"took the property subject to\" the mortgage\n\nand \"cannot invoke her homestead right as a defense to enforcement\n\nof the mortgage\").\n\n\n\n\n 10 Alternatively, a person with a homestead right can seek an\ninjunction to prevent a forced sale if the equity in the home is\nnot sufficient to cover both the creditor's claim and the homestead\nright. See, e.g., Deyeso v. Cavadi, 66 A.3d 1236, 1238 (N.H.\n2013).\n\n\n - 14 -\n\f The homestead right also can be waived, that is,\n\nvoluntarily or intentionally relinquished. Maroun, 109 A.3d at\n\n228. Although evidence of waiver must be \"unequivocal,\" \"if a\n\nmortgage document is signed by both spouses, 'with the formalities\n\nrequired for the conveyance of land,' no further evidence of waiver\n\nis required.\" Id. (quoting N.H. Rev. Stat. Ann. § 480:5-a).\n\n 2. Property Distribution by Divorce Decree\n\n In New Hampshire, \"[t]he question of whether and to what\n\nextent property rights have been transferred from one person to\n\nanother generally is resolved upon a determination of the\n\ntransferor's intent.\" Mamalis v. Bornovas, 297 A.2d 660, 662 (N.H.\n\n1972). When property rights are transferred in a stipulated\n\nagreement, such as in the form of a stipulated divorce decree,\n\n\"absent fraud, duress, mutual mistake, or ambiguity, the parties'\n\nintentions will be gleaned from the face of the agreement.\" Miller\n\nv. Miller, 578 A.2d 872, 873 (N.H. 1990). Courts consider \"the\n\nplain meaning of the language viewed in the context of the entire\n\ndecree[,]\" Matter of Oligny, 153 A.3d 194, 196 (N.H. 2016), and\n\nconstrue \"[s]ubsidiary clauses . . . so as not to conflict with\n\nthe primary purpose of the decree,\" id. (quoting Bonneville v.\n\nBonneville, 702 A.2d 823, 825 (N.H. 1997)). See also Sommers v.\n\nSommers, 742 A.2d 94, 99 (N.H. 1999) (\"We consider the intent of\n\nthe parties as expressed in the language of the stipulation.\").\n\n\n\n\n - 15 -\n\f Broadly speaking, a major purpose of a divorce decree\n\n\"is to establish a final and equitable distribution of the marital\n\nproperty.\" Bonneville, 702 A.2d at 825; see also McSherry v.\n\nMcSherry, 606 A.2d 311, 313 (N.H. 1992) (\"[A] property settlement\n\nin a divorce decree is 'a final distribution of a sum of money or\n\na specific portion of the spouses' property . . . [and] is not\n\nsubject to judicial modification on account of changed\n\ncircumstances.\" (alteration in original) (quoting Stebbins v.\n\nStebbins, 438 A.2d 295, 297 (N.H. 1981))); see also N.H. Rev. Stat.\n\nAnn. § 458:16-a (providing that \"[w]hen a dissolution of a marriage\n\nis decreed, the court may order an equitable division of property\n\nbetween the parties\" and specifying that \"[p]roperty shall include\n\nall tangible and intangible property and assets, real or personal,\n\nbelonging to either or both parties, whether title to the property\n\nis held in the name of either or both parties\"). Given that\n\ndivorce decrees establish a final division of property, it is\n\nunsurprising that such decrees can effectuate a conveyance of\n\npersonal or real property. See Swett v. Swett, 49 N.H. 264, 264\n\n(1870) (holding that an interest in real estate \"vested in the\n\nwife, 'by the mere force of the [divorce] decree,' 'as effectually\n\nas the same could be done by any conveyance of the husband\n\nhimself'\" (quoting Whittier v. Whittier, 31 N.H. 452, 458 (1855)));\n\nsee also Johnson v. Coe, 697 A.2d 939, 943 (N.H. 1997) (\"The award\n\nof the . . . house to the plaintiff in the divorce decree was a\n\n\n - 16 -\n\fproperty settlement and, as such, not modifiable.\"); Bonneville,\n\n702 A.2d at 826 (holding that a stock transfer in a divorce decree\n\noccurred \"by operation of law\"); Sommers, 742 A.2d at 99 (holding\n\nthat language in a divorce decree \"creat[ed] an immediate property\n\ninterest\" in a vehicle).\n\n Not all conveyances in a divorce decree are\n\nself-executing. That is, a stipulated conveyance in a divorce\n\ndecree may require a future occurrence or further action by the\n\nparties (a condition precedent) to take effect. See Spellman v.\n\nSpellman, 614 A.2d 1054, 1055 (N.H. 1992). However, \"[b]ecause\n\nconditions precedent are disfavored, [courts] infer that the\n\nparties intended a condition precedent only where the plain\n\nlanguage of the decree or stipulation requires such a\n\nconstruction.\" Sommers, 742 A.2d at 99 (emphasis added); see also\n\nUnited States v. Baker, No. 13-cv-213-PB, 2014 WL 4199120, at *3\n\n(D.N.H. Aug. 22, 2014)(\"The husband and wife's subsequent failure\n\nto comply with a provision of the divorce judgment -- in this case,\n\nthe execution and recording of a deed to the . . . properties --\n\nwill not invalidate or delay the conveyance unless the parties\n\nclearly intended for the provision to serve as a condition\n\nprecedent.\"). Therefore, under New Hampshire law, a divorce decree\n\nmay effectuate an immediate property transfer where its language\n\nplainly demonstrates an intention to do so. See Baker,\n\n2014 WL 4199120, at *3 (\"When a 'stipulation between the parties\n\n\n - 17 -\n\f. . . incorporated and merged into the divorce decree' 'clearly\n\nand affirmatively expresse[s] their intention' to convey a real\n\nproperty interest, that interest vests in the grantee 'on the\n\neffective date of the divorce decree.'\" (alteration and omission\n\nin original) (quoting Mamalis, 297 A.2d at 663)).\n\n 3. Application of the Law\n\n The district court correctly determined that Jennifer\n\nretained her homestead right under the plain language of the\n\ndivorce decree, which clearly indicates the parties' intention\n\nthat ownership of the Property immediately transfer to Jennifer:\n\n\"Jennifer Pike is awarded the marital homestead located at 34\n\nDogwood Lane, New London, New Hampshire[,] free and clear of any\n\ninterest of William Pike.\" This declarative statement, with no\n\nmention of any contingency or condition precedent, is the type of\n\nlanguage that the New Hampshire Supreme Court has read to\n\neffectuate an immediate property transfer. See Bonneville, 702\n\nA.2d at 826; Sommers, 742 A.2d at 99; cf. Spellman, 614 A.2d at\n\n236-37 (concluding that a stipulated award of the marital home was\n\nnot \"self-executing\" because the language of the stipulation\n\nspecifically made the transfer contingent on, among other things,\n\nan appraisal of the home).\n\n The other provisions regarding the \"marital homestead\"\n\ndo not negate the parties' clear intent to transfer ownership to\n\nJennifer. See Matter of Oligny, 153 A.3d at 196 (stating that\n\n\n - 18 -\n\f\"[s]ubsidiary clauses\" must be read \"so as not to conflict with\n\nthe primary purpose of the decree\") (quoting Bonneville, 702 A.2d\n\nat 825). Agreeing to share the proceeds from a potential sale of\n\nthe home once their son graduates high school, for example, is not\n\nincompatible with Jennifer's ownership. Nor does the decree's\n\ngeneral provision that the parties \"shall sign and deliver to the\n\nother party any document that is needed to fulfill or accomplish\n\nthe terms of this Decree\" evince an intention to make a deed\n\ntransfer a condition precedent to Jennifer's ownership of the\n\nProperty.11\n\n There also is no unequivocal evidence that Jennifer\n\nwaived her homestead right by agreeing to certain language in the\n\ndecree. See Maroun, 109 A.3d at 228-29. Deutsche Bank makes much\n\nof the fact that the divorce decree mentions the possibility of a\n\nforeclosure on the Property. As discussed above, however, a\n\npotential foreclosure does not necessarily negate a property\n\nowner's homestead right. Rather, a homestead right superior to a\n\nmortgage may simply require the mortgagee to pay the holder of the\n\n\n\n\n 11 The district court noted that William later deeded the\nProperty to Jennifer in support of its conclusion that the parties\nintended to transfer ownership of the Property to her. However,\ncontrary to Deutsche Bank's contention, the district court did not\nsuggest that the deed transfer was a condition precedent. It\nexpressly held that \"Jennifer's right to the [P]roperty became\neffective immediately when the divorce decree issued on July 3,\n2013.\"\n\n\n\n - 19 -\n\fright from the proceeds of a foreclosure sale. See supra section\n\nII.B.1. Therefore, the decree's mention of a possible foreclosure\n\ndoes not indicate that Jennifer relinquished her homestead right.\n\nFor these reasons, the district court did not err in concluding\n\nthat Jennifer enjoys a homestead right in the Property with\n\npriority over Deutsche Bank's mortgage.\n\nC. Equitable Subrogation\n\n Deutsche Bank's equitable subrogation argument\n\nessentially goes as follows: First Franklin discharged the debt\n\nowed to New Century and thus stood to benefit from Jennifer's\n\nwaiver of her homestead right in the New Century mortgage. As\n\nsuccessor to First Franklin, Deutsche Bank can stand in First\n\nFranklin's shoes, and thus benefit from Jennifer's waiver. In\n\nother words, Deutsche Bank does not have to recognize Jennifer's\n\nclaimed homestead right.12\n\n Deutsche Bank further contends that the district court\n\nerred in dismissing the Bank's equitable subrogation claim because\n\n(1) Jennifer waived the argument that equitable subrogation cannot\n\nbe applied to defeat a homestead right in the absence of fraud,\n\nand (2) New Hampshire law does not, in fact, require fraud. As to\n\n\n\n 12 To be precise, Deutsche Bank argues that it is entitled\nto equitable subrogation \"as to the amount that [First Franklin]\npaid to discharge the [New Century] [m]ortgage.\" In practical\nterms, this would mean that Deutsche Bank does not have to pay\nJennifer anything in the event of a foreclosure.\n\n\n - 20 -\n\f\"waiver,\" we are unconvinced that Jennifer \"waived\" or \"forfeited\"\n\nher legal argument given that she raised it at a time when Deutsche\n\nBank still had an opportunity to meaningfully respond and before\n\nthe district court had rendered judgment.13 As to the merits of\n\nher claim, we must first outline the relevant law in New Hampshire.\n\n 1. Background Law\n\n Under New Hampshire law, equitable subrogation \"is a\n\nbroad doctrine [that] 'applies where one who has discharged the\n\ndebt of another may, under certain circumstances, succeed to the\n\nrights and position of the satisfied creditor.'\" Chase v.\n\nAmeriquest Mortg. Co., 921 A.2d 369, 376 (N.H. 2007) (quoting 73\n\nAm. Jur. 2d Subrogation § 5 (2001)). For equitable subrogation to\n\napply, certain conditions \"must be met: (1) the subrogee [the\n\nentity who discharged the debt] cannot have acted as a volunteer;\n\n(2) the subrogee must have paid a debt upon which it was not\n\nprimarily liable; (3) the subrogee must have paid the entire debt;\n\nand (4) subrogation may not work any injustice to the rights of\n\nothers.\" Id.\n\n\n\n\n 13 Deutsche Bank specifically argues that Jennifer forfeited\nthe fraud contention by failing to plead it as an affirmative\ndefense, but the Bank forfeited this argument by failing to raise\nit in its opening brief. See Sparkle Hill, Inc. v. Interstate Mat\nCorp., 788 F.3d 25, 29 (1st Cir. 2015) (noting that arguments first\nasserted in a reply brief ordinarily are deemed waived or\nforfeited).\n\n\n\n - 21 -\n\f The subrogee has the burden of demonstrating an\n\nentitlement to equitable subrogation, \"which generally includes\n\npro[ving] . . . [t]he existence and applicability of equitable\n\nprinciples or contractual provisions as to subrogation and\n\nreimbursement.\" Wolters v. Am. Republic Ins. Co., 827 A.2d 197,\n\n200 (N.H. 2003) (second alteration in original) (quoting 16 L.\n\nRuss & T. Segalla, Couch on Insurance 3d § 222:7 (2000)).\n\nCrucially, the New Hampshire Supreme Court has held that equitable\n\nprinciples, such as equitable subrogation, \"may be applied to reach\n\nbeyond the literal language of the exceptions\" to the homestead\n\nright -- that is, to create a new exception to application of the\n\nhomestead right -- \"only when there has been fraud, deception, or\n\nother misconduct in the procurement of funds spent on a homestead.\"\n\nDeyeso v. Cavadi, 66 A.3d 1236, 1241 (N.H. 2013)(emphasis added).\n\n 2. Application of the Law\n\n On de novo review, we conclude that the district court\n\ncorrectly applied New Hampshire law and declined to apply equitable\n\nsubrogation to defeat Jennifer's homestead right because there was\n\nno \"fraud, deception, or other misconduct in the procurement of\n\nfunds spent on [the] homestead.\" Deyeso, 66 A.3d at 1241.14\n\n\n 14\n Although Deutsche Bank faults the district court for\noffering a shifting rationale for its ruling, we disagree with\nthis characterization. In both of its orders, the district court\nread Deyeso to hold that equitable principles cannot be invoked to\n\"reach beyond the literal language of the homestead exceptions\" in\nthe absence of fraud. Contrary to Deutsche Bank's suggestion, the\n\n\n - 22 -\n\fDeutsche Bank's fallback argument is that even if the district\n\ncourt correctly interpreted New Hampshire law, it could have --\n\nand should have -- exercised its equitable powers to apply\n\nequitable subrogation in the Bank's favor. We need not address\n\nthe complex question of whether and in what circumstances a federal\n\ncourt sitting in diversity may order equitable relief that is not\n\nauthorized under state law. See Guar. Tr. Co. of N.Y. v. York,\n\n326 U.S. 99, 106 (1945) (\"[A] federal court may afford an equitable\n\nremedy for a substantive right recognized by a State even though\n\na State court cannot give it.\"); Bogosian v. Woloohojian Realty\n\nCorp., 923 F.2d 898, 904 (1st Cir. 1991) (noting conflicting\n\ncircuit authority regarding the source of law for determining the\n\nequitable powers of a federal court sitting in diversity). Even\n\nassuming the district court had the ability to apply equitable\n\nsubrogation outside the parameters of New Hampshire law, it was\n\nnot compelled to do so, and it certainly did not abuse its\n\ndiscretion by declining to use its equitable powers in a manner at\n\nodds with state law. See Morgan v. Kerrigan, 523 F.2d 917, 921\n\n(1st Cir. 1975) (per curiam) (\"This court's review of orders issued\n\nin the exercise of the district court's equitable powers is limited\n\n\n\n\ndistrict court never held that fraud is an element of equitable\nsubrogation or a precondition to applying equitable subrogation in\nall situations.\n\n\n - 23 -\n\fto a determination whether there has been an abuse of\n\ndiscretion.\").15\n\n III.\n\n In her cross-appeal, Jennifer contends that she is\n\nentitled to attorney's fees based on a state statute and a\n\nprovision in the Deutsche Bank mortgage. The statute provides, in\n\nrelevant part, as follows:\n\n If a retail installment contract or evidence of\n indebtedness provides for attorney's fees to be awarded\n to the retail seller, lender or creditor in any action,\n suit or proceeding against the retail buyer, borrower or\n debtor involving the sale, loan or extension of credit,\n such contract or evidence of indebtedness shall also\n provide that:\n\n I. Reasonable attorney's fees shall be awarded to the\n buyer, borrower or debtor if he prevails in\n\n (a) Any action, suit or proceeding brought by the retail\n seller, lender or creditor; or\n\n (b) An action brought by the buyer, borrower or debtor[.]\n\nN.H. Rev. Stat. Ann. § 361-C:2 (emphases added). The Deutsche\n\nBank mortgage provides:\n\n\n\n\n 15 We recognize that the district court, at various places in\nits two orders related to equitable subrogation, seems to suggest\nthat its hands were tied by state law. However, we understand the\ndistrict court's rulings ultimately to rest on its determination\nthat equity would not be served by applying equitable subrogation\nin a situation where it would not be applied by state courts. See,\ne.g., Deutsche Bank Nat'l Tr. Co. v. Pike, No. 15-cv-304-JD, 2017\nWL 2608727, at *3 (D.N.H. Feb. 12, 2017) (\"Contrary to Deutsche\nBank's theory, [Jennifer] would not receive a windfall through her\nhomestead interest but instead would receive the protection\nintended and provided by [the homestead statute].\").\n\n\n - 24 -\n\f 25. Attorneys' Fees. Pursuant to . . . § 361-C:2, in\n the event that Borrower shall prevail in (a) any action,\n suit or proceeding, brought by Lender, or (b) an action\n brought by Borrower, reasonable attorneys' fees shall be\n awarded to Borrower.\n\n(Emphases added.) Jennifer did not sign the First Franklin, now\n\nDeutsche Bank, mortgage, and William is listed as the sole\n\n\"borrower.\" The term is not defined in the mortgage or in section\n\n361-C, but Jennifer concedes that she is not the \"borrower\" for\n\npurposes of the mortgage.\n\n The district court concluded that Jennifer is not\n\nentitled to attorney's fees under the statutory provision and the\n\nmortgage precisely because she \"is not the borrower.\" The court\n\nfurther held that even if Jennifer could be considered a \"debtor,\"\n\nthe statute and the mortgage provision do not apply because\n\nDeutsche Bank did not sue her for breach of the note or mortgage.\n\nNevertheless, on appeal, Jennifer presses the argument that she is\n\na \"debtor\" for purposes of the mortgage and, as such, is entitled\n\nto attorney's fees pursuant to the mortgage provision and section\n\n361-C:2. We generally review the district court's denial of\n\nattorney's fees for abuse of discretion but review any underlying\n\nconclusions of law de novo. In re Volkswagen & Audi Warranty\n\nExtension Litig., 692 F.3d 4, 13 (1st Cir. 2012).\n\n Deutsche Bank raises a plethora of reasons why Jennifer\n\nis not entitled to attorney's fees under section 361-C:2 and the\n\nmortgage. It suffices to say, however, that we essentially agree\n\n\n - 25 -\n\fwith the district court's straightforward analysis.16 The court\n\ncorrectly determined that Jennifer is not entitled to the benefit\n\nof the mortgage's attorney's fees provision, which is expressly\n\nlimited to the \"borrower.\" Section 361-C:2 requires reciprocal\n\ntreatment of both sides of a debt contract -- here, the mortgagee\n\nand William -- but does not rewrite the mortgage's terms to render\n\nthe Bank responsible for the attorney's fees of a third party.\n\nThe district court did not commit legal error or otherwise abuse\n\nits discretion in denying her fee request.17\n\n\n\n\n 16Among its other arguments, Deutsche Bank contends that the\ndistrict court did not have jurisdiction to consider Jennifer's\nfee request. Because Jennifer's entitlement to attorney's fees is\neasily resolved on the merits, we do not address the jurisdictional\nissue. See Cozza v. Network Assocs., Inc., 362 F.3d 12, 15 (1st\nCir. 2004) (\"The rule is well established in this Circuit that\nresolution of a complex jurisdictional issue may be avoided when\nthe merits can easily be resolved in favor of the party challenging\njurisdiction.\").\n\n 17 We note that it is somewhat disingenuous for Jennifer to\ncontend she has rights arising under the mortgage given that she\nhas repeatedly disavowed any connection to the mortgage, both in\nstate court and before the district court. Courts generally do\nnot approve of such attempts to have it both ways. See RFF Family\nP'ship, LP v. Ross, 814 F.3d 520, 527 (1st Cir. 2016) (discussing\nthe doctrine of judicial estoppel, which \"prevent[s] a litigant\nfrom taking a litigation position that is inconsistent with a\nlitigation position successfully asserted by him in an earlier\nphase of the same case or in an earlier court proceeding\"\n(alteration in original) (quoting Perry v. Blum, 629 F.3d 1, 8\n(1st Cir. 2010))).\n\n\n - 26 -\n\f ***\n\n For the foregoing reasons, we affirm as to both appeals.\n\nEach side shall bear its own costs.\n\n So ordered.\n\n\n\n\n - 27 -\n[END_CASE]",
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4,592,238 | Theresa FORTIER, Plaintiff, Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; Dartmouth Hitchcock Clinic Company Long Term Disability Plan, Defendants, Appellees. | Fortier v. Hartford Life & Accident Ins. Co. | 2019-02-20 | 18-1752P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Thompson, Barron", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1752\n\n THERESA FORTIER,\n\n Plaintiff, Appellant,\n\n v.\n\n HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; DARTMOUTH\n HITCHCOCK CLINIC COMPANY LONG TERM DISABILITY PLAN,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Landya B. McCafferty, U.S. District Judge]\n\n\n Before\n\n Lynch, Thompson, and Barron,\n Circuit Judges.\n\n\n Jonathan M. Feigenbaum for Theresa Fortier.\n Byrne J. Decker, with whom Scott K. Pomeroy and Ogletree,\nDeakins, Nash, Smoak & Stewart, P.C. were on brief, for Hartford\nLife and Accident Insurance Company and Dartmouth Hitchcock Clinic\nCompany Long Term Disability Plan.\n\n\n February 20, 2019\n\f LYNCH, Circuit Judge. A disability insurer, Hartford\n\nLife and Accident Insurance Company (\"Hartford\"), gave notice to\n\nTheresa Fortier that the long-term disability (\"LTD\") benefits it\n\nhad provided her under the Dartmouth Hitchcock Clinic Company Long\n\nTerm Disability Plan (the \"Plan\") would expire because she had not\n\nshown she was eligible for a continuation of those benefits. The\n\nnotice informed her she must file any appeal within 180 days of\n\nreceipt of the notice. She did not do so, filing her appeal about\n\ntwo months after this deadline.\n\n In this Employee Retirement Income Security Act of 1974\n\n(\"ERISA\") suit, Fortier first argues that her appeal was timely\n\nunder the Plan. She then argues that even if untimely, that\n\nuntimeliness should be excused under either of two doctrines: the\n\nERISA substantial compliance doctrine or a state law notice-\n\nprejudice rule. The district court rejected these arguments and\n\ngranted a motion for judgment on the administrative record for\n\nHartford and the Plan. Fortier v. Hartford Life & Accident Ins.\n\nCo., No. 16-CV-322-LM, 2018 WL 3542863, at *12 (D.N.H. July 23,\n\n2018). We also reject all these arguments and affirm. In\n\nrejecting the equitable arguments, our result is similar to that\n\nreached by the Seventh Circuit in Edwards v. Briggs & Stratton\n\nRet. Plan, 639 F.3d 355 (7th Cir. 2011).\n\n\n\n\n - 2 -\n\f I.\n\n We describe the material undisputed facts. Because this\n\ncourt is not reviewing the merits of Hartford's 2013 \"adverse\n\nbenefit determination\"1 on Fortier's claim, facts concerning\n\nFortier's medical condition(s) and medical treatment are described\n\nonly where relevant.\n\nA. Illness and Initial LTD Claim\n\n In January 2008, Fortier was employed as a doctor by the\n\nDartmouth-Hitchcock Clinic, and so became a beneficiary and\n\nparticipant in an LTD benefits plan (the Plan), offered through\n\nHartford. The Plan provided for LTD benefits if a participant\n\nbecame disabled. There is no dispute that Fortier became disabled\n\nin May 2009.\n\n The Plan had limitations on the duration of LTD benefits,\n\nas relevant here, depending on the cause of the disability. One\n\nsuch duration limit was a twenty-four month limitation for\n\n\n\n\n 1 Under ERISA regulations, an \"adverse benefit\ndetermination\" is defined, in part, as:\n\n Any of the following: A denial, reduction, or\n termination of, or a failure to provide or\n make payment (in whole or in part) for, a\n benefit, including any such denial, reduction,\n termination, or failure to provide or make\n payment that is based on a determination of a\n participant's or beneficiary's eligibility to\n participate in a plan . . . .\n\n29 C.F.R. § 2560.503–1(m)(4)(i).\n\n - 3 -\n\fdisability caused by \"Mental Illness and Substance Abuse Benefits\"\n\n(the \"Mental Illness Limitation\"). The Mental Illness Limitation\n\nstated, in part:\n\n If You are Disabled because of:\n 1) Mental Illness that results from any\n cause;\n 2) any condition that may result from\n Mental Illness . . .\n [b]enefits will be payable:\n 1) for as long as you are confined in\n a hospital or other place licensed\n to provide medical care for the\n disabling condition; or\n 2) if not confined, or after you are\n discharged and still Disabled, for\n a total of 24 month(s) for all such\n disabilities during your lifetime.\n\nThe Plan defined \"Mental Illness\" as \"a mental disorder as listed\n\nin the current version of the Diagnostic and Statistical Manual of\n\nMental Disorders, published by the American Psychiatric\n\nAssociation. A Mental Illness may be caused by biological factors\n\nor result in physical symptoms or manifestations.\"\n\n Under the Plan, \"Mental Illness does not include the\n\nfollowing mental disorders outlined in the Diagnostic and\n\nStatistical Manual of Mental Disorders: . . . Delirium, Dementia,\n\nand Amnesic and Other Cognitive Disorders\" (emphasis added). It\n\nhas been Fortier's position that she suffers from a \"Cognitive\n\nDisorder\" such that the limitation period does not apply. To be\n\nclear, Fortier was eligible for and received benefits for at least\n\n\n\n\n - 4 -\n\ftwenty-four months regardless of whether the cause of her\n\ndisability was a \"Mental Illness\" or a \"Cognitive Disorder.\"\n\n In November 2009, Fortier filed a disability claim with\n\nHartford under the Plan, stating that she could not work because\n\nof a disability as of May 6, 2009.2 In a \"Claimant Interview\" with\n\nHartford, Fortier, according to Hartford's contemporaneous notes,\n\nexplained that she had \"got[ten] sick with some form of infection\"\n\nand subsequently had \"significant problems with memory.\" Fortier\n\nmaintained this was corroborated by \"neurophysch[ological]\n\neval[uation].\"\n\n As part of Hartford's review of Fortier's claim,\n\nHartford obtained medical records from several doctors who had\n\ntreated Fortier. Her psychiatrist, Dr. Paul Belliveau, stated in\n\nJune 2009 that Fortier's primary diagnoses were \"Major Depressive\n\nDisorder\" and \"Cognitive Disorder NOS [(Not Otherwise\n\nSpecified)],\" from \"resolving encephalopathy.\"3 Her neurologist\n\n\n\n\n 2 Fortier contracted a viral infection in April 2009 and\nreported subsequent symptoms including issues with memory and\ngeneral \"difficulty with various aspects of . . . cognitive\nfunction.\" On May 6, 2009, Fortier stopped working due to her\nmedical condition(s).\n 3 Fortier has referred to this condition as one caused by\n\"encephalitis,\" meaning inflammation of the brain generally caused\nby an infection (often viral). Merriam Webster Medical Dictionary,\nhttp://www.merriam-webster.com/medical (definition of\n\"encephalitis\"). Dr. Belliveau, however, stated that the cause\nwas \"encephalopathy,\" which is a broader term meaning a \"disease\n\n\n - 5 -\n\fat the time, Dr. Evan Murray, found that the results of\n\nelectroencephalogram (EEG) and brain magnetic resonance imaging\n\n(MRI) tests were normal and stated that \"[i]t is probable that the\n\nmajority of Dr. Fortier's current cognitive difficulties are due\n\nto a mood disorder.\" In Dr. Murray's view, then, \"both the EEG\n\nand brain MRI did not reveal evidence to support such an etiology\n\n[of encephalopathy].\"\n\n After reviewing medical records and having the \"Claimant\n\nInterview\" with Fortier, Hartford notified Fortier in a letter\n\ndated December 18, 2009, that it had approved her disability claim\n\nand would start paying the appropriate benefits effective November\n\n2, 2009. This letter stated that \"[o]n a periodic basis we will\n\nbe providing you with supplemental claim forms for the purpose of\n\nfurnishing us with continued proof of disability.\" When Fortier's\n\nclaim was granted, a Manager at Hartford stated in Hartford's\n\ninternal notes that \"further clarification should be requested to\n\ndetermine whether Dr. Fortier's primary disabling diagnosis is due\n\nto a physical or [a] mental/nervous condition.\" Hartford had\n\npreviously \"coded\" Fortier's disability claim as a physical\n\ndiagnosis.\n\n\n\n\nof the brain[,] especially: one involving alterations of brain\nstructure.\" Id. (definition of \"encephalopathy\").\n\n\n\n - 6 -\n\fB. 2011 Adverse Benefit Determination and 2012 Appeal\n\n In 2010 and 2011, Hartford periodically requested\n\nupdated medical information from Fortier. In response, Dr.\n\nBelliveau stated in January 2011, on an \"Attending Physician's\n\nStatement\" form, that Fortier's \"[c]ognitive dysfunction appears\n\nto be grad[ually] improving\" and the \"[p]rimary concern now is\n\nincreasing depression.\" In February 2010, an Examiner at Hartford\n\nspoke with Fortier on the phone and, according to Hartford's notes,\n\nFortier declined to undergo further testing, saying that further\n\nneuropsychological tests would not make sense. Later, Hartford\n\nrequested updated medical records from Dr. Belliveau on April 8,\n\n2011, which he provided promptly. Dr. Belliveau's notes indicated\n\nthat Fortier was \"reluctant to retake the neuropsychology testing\"\n\nin July 2010. After further requests for information and\n\ncommunication with Fortier, an Examiner at Hartford referred the\n\ncase for a medical review \"for clarification of [Fortier's]\n\ndisabling condition\" in June 2011. In July 2011, a nurse employed\n\nby Hartford determined that Fortier's disabling condition was a\n\nmental illness rather than a cognitive disorder or other physical\n\nailment. In August 2011, Hartford continued to write to Fortier's\n\ntreating physicians for further information. On September 13,\n\n2011, Hartford determined, in its view, that an \"in-depth . . .\n\nreview\" had \"found no support for a physical [disabling\n\ncondition].\"\n\n\n - 7 -\n\f In a letter dated September 13, 2011, Hartford notified\n\nFortier that her benefits would terminate on November 1, 2011,\n\nbecause the Plan's Mental Illness Limitation applied to her\n\ndisability. Hartford's letter stated that \"[i]f you do not agree\n\nwith our denial, in whole or in part, and you wish to appeal our\n\ndecision, you or your authorized representative must write to us\n\nwithin one hundred eighty (180) days from your receipt of this\n\nletter.\" About 174 days after receipt of this letter, Fortier's\n\nattorney requested a sixty-day extension to appeal the adverse\n\nbenefit determination. Hartford granted this request, and the\n\ntime to file an appeal was extended to May 11, 2012. Fortier,\n\nthrough her attorney, appealed. That appeal resulted in an\n\nextension of LTD benefits.\n\n In a letter to Fortier's attorney dated May 22, 2012,\n\nHartford stated that \"we have determined that Dr. Fortier is\n\nentitled to continued LTD benefits beyond November 1, 2011, subject\n\nto all policy provisions and guidelines,\" but did not specify the\n\nreason. This deficiency was cured within two weeks. In a June 4,\n\n2012, follow-up letter to Fortier's attorney, Hartford provided a\n\nreason for not cutting off and for continuing her LTD benefits:\n\n\"As Dr. Fortier was not notified until the letter dated 09/13/2011\n\nof the limitation for Mental Illness Benefits she is subject to\n\nthe limitation beginning 09/13/2011.\" That is, Hartford restarted\n\nthe twenty-four month period (for benefits paid due to a disability\n\n\n - 8 -\n\ffalling under the Mental Illness Limitation) anew from September\n\n13, 2011, because of the lack of prior notice to Fortier regarding\n\nthe Mental Illness Limitation. The letter explicitly stated that\n\n\"no benefits will be payable beyond 09/12/2013,\" except that\n\nbenefits would be payable if, and for as long as, \"[Fortier is]\n\nconfined in a hospital or other place licensed to provided medical\n\ncare for the disabling condition.\" This letter also sought further\n\ninformation from Fortier and Fortier's treating physicians.\n\n After the June 4, 2012, letter, Hartford repeatedly\n\nrequested more information about Fortier's disabling condition\n\nfrom Fortier, Fortier's attorney, and Fortier's healthcare\n\nproviders4 throughout the rest of 2012 and the first seven months\n\nof 2013. A June 6, 2012, letter to Fortier's attorney requested\n\n\"more information to evaluate [Fortier's] claim,\" including an\n\n\"Attending Physician's Statement of Continued Disability\" from\n\neach of Fortier's treating physicians. This letter requested this\n\ninformation by July 9, 2012, but the record does not show that\n\nHartford received any such information by this date. A July 13,\n\n2012, letter referred to the June 6 letter and made the same\n\nrequest for \"more information to evaluate [Fortier's] claim,\" this\n\ntime by August 5, 2012. Hartford received an updated Attending\n\n\n\n 4 All of the letters sent directly to healthcare providers\nattached a proper authorization form, signed by Fortier, for the\nrelease of medical records and personal information.\n\n\n\n - 9 -\n\fPhysician's Statement from Dr. Belliveau, dated August 16, 2012,\n\nbut the record does not show the receipt of an Attending\n\nPhysician's Statement from any other treating physician. An August\n\n7, 2012, letter from Hartford requested assistance from Fortier's\n\nattorney in obtaining records from two particular hospitals where\n\nFortier had received medical care. Nothing in the record suggests\n\nthat Hartford received the requested information from the two\n\nhospitals from Fortier's attorney.\n\n A February 15, 2013, Hartford letter to Fortier's\n\nattorney similarly requested assistance in obtaining information\n\nfrom a medical provider, including updated Attending Physician's\n\nStatements. Dr. Belliveau returned an Attending Physician's\n\nStatement form that stated \"See attached\" and was otherwise nearly\n\nblank. The attached documents were Dr. Belliveau's office notes\n\nregarding Fortier for May 2011 through November 2012. There were\n\nno records pertaining to January and February 2013. A February\n\n18, 2013, letter to Dr. Belliveau requested a completed Attending\n\nPhysician's Statement as well as \"any other information you feel\n\nis pertinent to the processing of [Fortier's] claim.\" A March 29,\n\n2013, letter to Fortier's attorney sought assistance in obtaining\n\na completed form from Dr. Belliveau, rather than office notes and\n\nthe \"incomplete\" form. There is no evidence that this information\n\nwas then provided.\n\n\n\n\n - 10 -\n\f Hartford sent a May 10, 2013, letter to Fortier's\n\nattorney, which stated that the letter was a \"final request for\n\nthe information [an Attending Physician's Statement] we need to\n\nfully evaluate Dr. Fortier's claim for LTD benefits\" (emphasis\n\nadded). It referred to several prior letters requesting\n\ninformation. According to Hartford's internal records, on July 8,\n\n2013, Dr. Belliveau sent a copy of the same incomplete form that\n\nhe had previously sent in February 2013.\n\n Even after this \"final request,\" Hartford sent several\n\nletters in July 2013 -- one directly to Fortier, two to Fortier's\n\nhealthcare providers -- seeking additional records or other\n\npertinent information.\n\nC. 2013 Adverse Benefit Determination\n\n In a letter to Fortier's attorney dated July 17, 2013,\n\nand apparently sent on July 23, 2013, (the \"July 17/23 letter\")\n\nHartford stated that it had \"completed [its] review of [Fortier's]\n\nclaim for benefits\" and it would stop paying LTD benefits to\n\nFortier on September 13, 2013, because it had determined on the\n\nrecord that the Mental Illness Limitation applied to Fortier. The\n\nletter stated: \"If you do not agree with our denial, in whole or\n\nin part, and you wish to appeal our decision, you or your\n\nauthorized representative must write to us within one hundred\n\neighty (180) days from the receipt of this letter\" and briefly\n\n\n\n\n - 11 -\n\fexplained the appeals procedure (such as the address to which\n\ndocumentation should be sent).\n\n A few weeks after this letter, on August 10, 2013,\n\nFortier's attorney wrote to Hartford. He acknowledged notice of\n\nan adverse benefit determination and stated he had reviewed the\n\n\"adverse-benefit-decision-letter\"; he requested Fortier's claim\n\nfile, among other things. Hartford complied with this request on\n\nAugust 19, 2013. Between August 2013 and March 2014, nothing in\n\nthe record indicates that Fortier's attorney retracted his\n\nstatement that Hartford had made an adverse benefit determination.\n\nD. March 2014 Appeal Letter\n\n Fortier did not appeal within 180 days of receipt of the\n\nnotice (the July 17/23 letter). Fortier, through her attorney,\n\nsent a letter dated March 7, 2014, purporting to appeal. This was\n\nabout two months later than 180 days from the receipt of the July\n\n17/23 letter. Hartford responded in a letter dated March 26, 2014,\n\nstating that it would not consider Fortier's appeal because it was\n\nuntimely.5\n\n\n\n\n 5 That same day, the Harford Appeal Specialist who signed\nthe March 26 letter spoke with Fortier's attorney on the phone.\nHartford's call notes from this call state that Fortier's attorney\n\"disagree[d] with the decision because the claimant's last payment\nwas in September,\" but do not show that he offered any other excuse\nfor filing later than 180 days after receiving the July 17/23\nletter.\n\n\n - 12 -\n\fE. Federal Lawsuit\n\n About two years after Fortier's attempted administrative\n\nappeal in March 2014, she filed a two-count complaint in federal\n\ndistrict court under ERISA Section 502(a), 29 U.S.C. § 1132(a) on\n\nJuly 15, 2016. Count One sought reinstatement of LTD benefits,\n\nwhich had been terminated in accordance with the July 17/23 letter.\n\nCount Two sought attorneys' fees and costs under 29 U.S.C.\n\n§ 1132(g)(1). On December 14, 2016, Fortier filed an amended\n\ncomplaint, adding a count challenging the legality of the Mental\n\nIllness Limitation under the Americans with Disabilities Act\n\n(\"ADA\").\n\n On January 27, 2017, Hartford moved to dismiss (styled\n\nas a partial motion to dismiss), arguing that Fortier had not\n\nexhausted her administrative remedies and had not set forth a claim\n\nunder the ADA; Fortier opposed this motion. On September 11, 2017,\n\nthe District Court dismissed the ADA claim but not Count One\n\nregarding the denial of LTD benefits. The parties each then filed\n\nmotions for judgment on the administrative record.\n\n The district court issued a Memorandum and Opinion and\n\nentered judgment in Hartford's favor. Fortier, 2018 WL 3542863.\n\nThe district court held that Fortier had not timely appealed, and\n\nso had not exhausted her administrative remedies. Id. at *11.\n\nThe district court rejected Fortier's equitable arguments that her\n\nappeal was timely under either the substantial compliance doctrine\n\n\n - 13 -\n\for New Hampshire's notice-prejudice rule. Id. at *8-*11. Fortier\n\nappealed from the judgment. Her appeal does not contest the\n\ndismissal of the ADA claim.\n\n II.\n\n We review the district court's grant of judgment on the\n\nadministrative record de novo. Glista v. Unum Life Ins. Co. of\n\nAm., 378 F.3d 113, 125 (1st Cir. 2004). We need not consider the\n\nappropriate standard of review for \"reviewing determinations made\n\nregarding benefits claims,\" Rodríguez–López v. Triple-S Vida,\n\nInc., 850 F.3d 14, 20 (1st Cir. 2017), because our review examines\n\nwhether Fortier exhausted her administrative remedies and not the\n\nmerits of Hartford's adverse benefit determination.\n\n In order to bring suit under a benefits plan subject to\n\nERISA, a beneficiary must exhaust the plan's administrative\n\nremedies. Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d\n\n49, 51-52 (1st Cir. 2014); see Heimeshoff v. Hartford Life &\n\nAccident Ins. Co., 571 U.S. 99, 105 (2013) (noting that \"courts of\n\nappeals have uniformly required that participants exhaust internal\n\nreview before bringing a claim [under ERISA] for judicial review\").\n\n We first address Fortier's arguments about the proper\n\nstarting date for the 180-day time limit for appeals and about\n\nHartford's compliance with the Plan, before considering Fortier's\n\nequitable arguments concerning the substantial compliance doctrine\n\nand New Hampshire's common law notice-prejudice rule.\n\n\n - 14 -\n\fA. ERISA's Requirements and the 180-Day Time Limit\n\n Fortier argues that an ERISA regulation defining an\n\n\"adverse benefit determination\" requires that the 180-day time\n\nlimit start at the date of termination of benefits and not from\n\nthe date of notice. This argument fails.\n\n Fortier's reading of ERISA regulations is plainly wrong.\n\nThe relevant ERISA regulation does not define an \"adverse benefit\n\ndetermination\" as a \"contemporary cessation of benefits,\" as\n\nFortier contends.6 The ERISA regulation concerning notice of an\n\nadverse benefit determination states in part that a complying group\n\nhealth plan7 must \"[p]rovide claimants at least 180 days following\n\nreceipt of a notification of an adverse benefit determination\n\nwithin which to appeal the determination.\" 29 C.F.R. § 2560.503-\n\n1(h)(3)(i) (emphasis added). Notice is the key event. The ERISA\n\n\n\n\n 6 In relevant part, the regulation states that \"[t]he term\n'adverse benefit determination' means: (i) Any of the following:\na denial, reduction, or termination of, or a failure to provide or\nmake payment (in whole or in part) for, a benefit.\" 29 C.F.R.\n§ 2560.503–1(m)(4)(i). Denial of benefits, termination of\nbenefits, and reduction of benefits are listed separately by this\ndefinition, and so it would not make sense for the term \"denial\"\nto mean only the \"termination\" of benefits.\n 7 The parties agree that the Plan was a group health plan.\nUnder ERISA, \"[t]he term 'group health plan' means an employee\nwelfare benefit plan providing medical care . . . to participants\nor beneficiaries directly or through insurance, reimbursement, or\notherwise.\" 29 U.S.C. § 1167(1).\n\n\n\n - 15 -\n\fregulations do not require that the time limit for an\n\nadministrative appeal run from the date of termination of benefits.\n\nB. Hartford's Conduct\n\n Fortier also argues that: Hartford's letters from June\n\n4, 2012, and July 17/23, 2013, were inconsistent; and a portion of\n\nHartford's \"Product Manual\" (in essence, internal guidelines)\n\nshows that Hartford breached its own internal guidelines.8 We\n\nassume for the sake of argument that Hartford's conduct is relevant\n\nhere.\n\n These arguments fail, as Hartford's conduct was\n\nconsistent with ERISA and relevant regulations. The Plan (which\n\nis the governing document) plainly laid out the 180-day notice\n\nrule. Specifically, the Plan's Certificate of Insurance, which\n\nwas expressly incorporated as part of the Plan terms, included --\n\nunder the heading \"Claim Denial: What recourse do I have if my\n\nclaim is denied?\" -- a clear statement that a claimant \"must\n\nrequest a review upon written application within . . . 180 days of\n\nreceipt of claim denial.\" The Certificate of Insurance also\n\n\n 8 Fortier makes a passing reference in the \"Statement of\nthe Relevant Facts\" section of her brief to language in the\nCertificate of Insurance requiring that, \"On any wholly or\npartially denied claim, you or your representative must appeal\nonce to [Hartford] for a full and fair review.\" However, Fortier's\npoint is not clear; if the implicit argument is that the latter\nappeal filed in March 2014 was unnecessary to exhaust Fortier's\nadministrative remedies because she had already appealed in 2012\non the same claim, it is waived for lack of development. See\nUnited States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\n\n\n - 16 -\n\fstated, under the heading \"Appealing Denials of Claims for\n\nBenefits,\" that:\n\n On any wholly or partially denied claim, you\n or your representative must appeal once to\n [Hartford] for a full and fair review. You\n must complete this claim appeal process before\n you file an action in court. Your appeal\n request must be in writing and be received by\n [Hartford] no later than the expiration of 180\n days from the date you received your claim\n denial.\n\nThis document refutes Fortier's argument. Further, the 180-day\n\ntime limit complies with the relevant ERISA regulation. See 29\n\nC.F.R. § 2560.503-1(h)(3)(i).\n\n The July 17/23 letter from Hartford to Fortier's\n\nattorney clearly stated, \"If you do not agree with our denial, in\n\nwhole or in part, and you wish to appeal our decision, you or your\n\nauthorized representative must write to us within one hundred\n\neighty (180) days from the receipt of this letter.\" Fortier\n\nacknowledges that this letter gave notice of her appeal rights.\n\n Fortier contrasts the June 4, 2012, and the July 17/23,\n\n2013, letters from Hartford, arguing that \"[o]ne cannot be an\n\n'adverse benefit determination' and not the other.\" This argument\n\nis simply wrong and mischaracterizes the letters. The June 4,\n\n2012, letter gave reasons for the extension of benefits discussed\n\nin the May 22, 2012, letter, but also warned of the new termination\n\ndate of those benefits. The July 17/23 letter, sent more than a\n\nyear later, announced the final adverse benefit determination and\n\n\n - 17 -\n\fgave notice of the right to appeal within 180 days of receipt of\n\nthe letter.\n\n Fortier also argues that a page from Hartford's Product\n\nManual demonstrates that \"Hartford believes a letter should be\n\nsent advising of presuit appeals rights when the claim is paid and\n\nclosed, not two months before.\" The language Fortier focuses on\n\nis a portion of an instruction to Hartford employees that \"appeal\n\nlanguage should again be utilized once the limited benefit duration\n\nhas been paid and the claim terminated.\" This page is not relevant\n\nhere, and likely not admissible.9\n\n\n\n\n 9 This page from the Product Manual is not part of the\nadministrative record in this case and was obtained by Fortier's\nattorney through discovery in a different and unrelated case in\n2009 (which he acknowledges). \"[S]ome very good reason is needed\nto overcome the presumption that the record on review is limited\nto the record before the administrator.\" Morales-Alejandro v.\nMed. Card Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007) (quoting\nListon v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st\nCir. 2003)).\n In Glista, this court allowed the consideration of two\ninternal insurance company documents; such internal documents \"are\nmost likely to be relevant where they have been authenticated,\nhave been generated or adopted by the plan administrator, concern\nthe policy in question, are timely to the issue in the case, are\nconsistently used, and were known or should have been known by\nthose who made the decision.\" 378 F.3d at 123.\n Here, we do not know whether the Product Manual reflects\nHartford's understanding of the Plan or its appeals procedures.\nFurther, there is no evidence in the record showing that Hartford\nused this Product Manual, or that it was or should have been known\nto the relevant Hartford employees. Taken together, these facts\nmake the Product Manual irrelevant here.\n\n\n\n - 18 -\n\f In summary, Hartford properly followed the terms of the\n\nPlan, which met the ERISA requirements. Hartford's July 17/23\n\nletter was an adverse benefit determination and provided notice of\n\nthe right to appeal. The 180-day time limit began at the receipt\n\nof this letter, and so Fortier's attempted appeal in March 2014\n\nwas untimely. In the ERISA context, \"[h]aphazard waiver of time\n\nlimits would increase the probability of inconsistent results.\"\n\nTerry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998).\n\nC. Inapplicability of the Doctrine of Substantial Compliance\n\n The judicially-created doctrine of \"substantial\n\ncompliance,\" an ERISA doctrine, has been applied to excuse an\n\ninsurer's failure to comply precisely with ERISA's notice\n\nrequirements, so long as the insured person was \"supplied with a\n\nstatement of reasons that, under the circumstances of the case,\n\npermitted a sufficiently clear understanding of the\n\nadministrator's position to permit effective review.\" Niebauer v.\n\nCrane & Co., 783 F.3d 914, 927 (1st Cir. 2015) (quoting Terry, 145\n\nF.3d at 39); see Santana-Díaz v. Metro. Life Ins. Co., 816 F.3d\n\n172, 178 (1st Cir. 2016).10 In fact, the doctrine assists with the\n\n\n 10 Some other circuits have applied a broader version of\nthe doctrine to other situations under ERISA, such as an insurer's\nsubstantial compliance with a change of beneficiary. See, e.g.,\nDavis v. Combes, 294 F.3d 931, 941-42 (7th Cir. 2002) (change of\nbeneficiary); but see Hall v. Metro. Life Ins. Co., 750 F.3d 995,\n1000-01 (8th Cir. 2014) (in a different context, rejecting the\ndoctrine in a change of beneficiary situation). But no circuit\nhas applied the doctrine to excuse a late administrative appeal by\n\n\n - 19 -\n\fprompt review of denial of benefits, and Fortier is arguing for\n\ndelay, not prompt review.\n\n Fortier makes a fairness argument: since Hartford has at\n\nleast once had the doctrine applied in its favor, Fortier should\n\nreceive the benefit of the doctrine. See, e.g., Topalian v.\n\nHartford Life Ins. Co., 945 F. Supp. 2d 294, 339 (E.D.N.Y. 2013)\n\n(finding that \"Hartford was in substantial compliance with the\n\n[Department of Labor]'s regulatory deadlines\" despite Hartford\n\nmaking a late benefit determination). Neither the caselaw nor 29\n\nC.F.R. § 2560.503-1(b)(5)11 supports Fortier's argument.12\n\n We agree generally with Edwards, where the Seventh\n\nCircuit held that the substantial compliance doctrine did not apply\n\n\n\n\na claimant, which is what Fortier asks that we do, and some have\nrejected the argument. See, e.g., Edwards, 639 F.3d at 362-63.\n 11 This regulation addresses the \"[o]bligation to establish\nand maintain reasonable claims procedures.\"\n 12 We do not specifically address all of Fortier's broad\nstatements concerning duties of loyalty, good faith, and fair\ndealing. These assertions rest on the assumption that a \"desire\nto save money had to be the overriding force in Hartford's biased\nclaim adjudication\" and the related assumption that \"Hartford's\nimproper motive caused it to ultimately refuse to review Dr.\nFortier's . . . appeal.\"\n These assumptions are not adequately supported in\nFortier's briefs, nor in the record. Fortier does not point to\nanything in the record that clearly suggests, let alone proves,\nsuch an improper motive. Her primary support for such a motive is\nthe relative speed (about two weeks) in which Hartford granted\nFortier's May 2012 appeal, but this does not itself demonstrate a\n\"biased claim adjudication.\"\n\n\n - 20 -\n\fto a claimant's late appeal from a denial of benefits. The Seventh\n\nCircuit reasoned that:\n\n [I]t seems consistent neither with the\n policies underlying the requirement of\n exhaustion of administrative remedies in ERISA\n cases nor with judicial economy to import into\n the exhaustion requirement the substantial\n compliance doctrine. To so hold would render\n it effectively impossible for plan\n administrators to fix and enforce\n administrative deadlines while involving\n courts incessantly in detailed, case-by-case\n determinations as to whether a given\n claimant's failure to bring a timely appeal\n from a denial of benefits should be excused or\n not.\n\nEdwards, 639 F.3d at 362.13 As in Edwards, see id. at 359, the\n\nPlan here contained a clear deadline for appeals of adverse benefit\n\ndeterminations. In coming to its conclusion, the Seventh Circuit\n\ndetermined that, though the plan administrator had discretion to\n\nconsider an untimely appeal, the claimant \"ha[d] never offered an\n\nexplanation for the untimeliness of her appeal that would warrant\n\nsuch an exercise of discretion in her favor [by the plan\n\nadministrator].\" Id. at 362. The same is true here. We find\n\nconvincing the concerns about the harms that would result from\n\napplying the substantial compliance doctrine to excuse a\n\nclaimant's failure to meet the exhaustion requirement.14\n\n\n\n\n 13 We acknowledge that there may well be ERISA cases where\ncertain exceptions and doctrines can dictate a different outcome.\n\n 14 Fortier has not made an equitable tolling argument.\n\n\n - 21 -\n\f Further, the Supreme Court has discussed ERISA's\n\n\"'careful balancing' between ensuring fair and prompt enforcement\n\nof rights under a plan and the encouragement of the creation of\n\nsuch plans.\" Aetna Health Inc. v. Davila, 542 U.S. 200, 215 (2004)\n\n(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987));\n\nsee also Heimeshoff, 571 U.S. at 108 (noting that a \"focus on the\n\nwritten terms of the plan is the linchpin of\" the ERISA system).\n\nAdoption of Fortier's argument would risk upsetting this balance\n\nand reducing the incentive for employers to set up benefit plans.\n\n Next, Fortier's reliance on 29 C.F.R. § 2560.503-1(b)(5)\n\nis fundamentally misconceived. Nothing in the regulation would be\n\n\"undermined by Hartford when it applies deadlines strictly against\n\nplan participants.\" In fact, \"ERISA's exhaustion requirement\n\nserves different purposes than the denial of claims process,\"\n\nFortier, 2018 WL 3542863, at *10, and so all aspects of such\n\nprocesses need not be the same.\n\n The substantial compliance doctrine does not excuse\n\nFortier's untimely ERISA administrative appeal.15\n\n\n\n\n 15 Fortier makes no argument that we should excuse her\nfailure to exhaust the available administrative remedies. See,\ne.g., Medina v. Metro. Life Ins. Co., 588 F.3d 41, 47 (1st Cir.\n2009); Madera v. Marsh USA, Inc., 426 F.3d 56, 62-63 (1st Cir.\n2005); Turner v. Fallono Cmty. Health Plan, Inc., 127 F.3d 196,\n200 (1st Cir. 1997); Drinkwater v. Metro. Life Ins. Co., 846 F.2d\n821, 826 (1st Cir. 1988).\n\n\n - 22 -\n\fD. Inapplicability of New Hampshire's Notice-Prejudice Rule\n\n Fortier argues next that New Hampshire's common law\n\nnotice-prejudice rule (where an insurer must show prejudice in\n\norder to deny certain limited types of untimely insurance claims)\n\nshould apply to her situation. Our own case law leads us to reject\n\nthe argument, as do decisions of our sister circuits. See Edwards,\n\n639 F.3d at 363; Chang v. Liberty Life Assurance Co., 247 F. App'x\n\n875, 878 (9th Cir. 2007).\n\n This court, discussing ERISA appeals procedures and the\n\nexhaustion requirement, has stated that:\n\n Congress' apparent intent in mandating these\n internal claims procedures was to minimize the\n number of frivolous ERISA lawsuits; promote\n the consistent treatment of benefit claims;\n provide a nonadversarial dispute resolution\n process; and decrease the cost and time of\n claims settlement. It would be anomalous if\n the same reasons which led Congress to require\n plans to provide remedies for ERISA claimants\n did not lead courts to see that those remedies\n are regularly utilized.\n\nTerry, 145 F.3d at 40 (quoting Makar v. Health Care Corp. of the\n\nMid-Atlantic (CareFirst), 872 F.2d 80, 83 (4th Cir. 1989)); accord\n\nSchorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734, 739\n\n(7th Cir. 2012); Kennedy v. Empire Blue Cross & Blue Shield, 989\n\nF.2d 588, 594 (2d Cir. 1993). This court stated further in Terry\n\nthat \"[i]t would hardly make sense to permit the filing of [a late]\n\nappeal . . . in light of the internal claims procedures' aims of\n\nconsistency and economy.\" Terry, 145 F.3d at 40. Adopting\n\n\n - 23 -\n\fFortier's argument would reduce consistency in determinations and\n\nnational consistency. Further, \"permitting appeals well after the\n\ntime for them has passed can only increase the cost and time of\n\nthe settlement process.\" Id. The exhaustion requirement -- and\n\nseveral of its underlying policy goals -- would be undercut by an\n\nextension of a state law notice-prejudice rule to ERISA appeals.\n\nSee Stacy v. Appalachian Regional Healthcare, Inc., 259 F. Supp.\n\n3d 644, 654 (E.D. Ky. 2017).\n\n The Seventh and Ninth Circuits have agreed that state\n\ncommon law notice-prejudice rules do not apply to ERISA appeals.\n\nSee Edwards, 639 F.3d at 363; Chang, 247 F. App'x at 878. Indeed,\n\nno federal court has applied any state's common law notice-\n\nprejudice rule to excuse a late administrative ERISA appeal.16\n\n\n\n\n 16 The District Court for the Eastern District of\nPennsylvania suggested in dictum that an untimely ERISA appeal\nwould have been subject to the notice-prejudice rule. Foley v.\nInt'l Bhd. of Elec. Workers Local Union 98 Pension Fund, 91 F.\nSupp. 2d 797, 803 n.6 (E.D. Pa. 2000) (\"Even if [the plaintiff's]\nappeal were untimely, defendants would not prevail, because they\nhave not shown that they were prejudiced by the untimely\nsubmission, as they are required to do under the Supreme Court's\nrecent decision in UNUM.\")\n This footnote appears to rest on a misunderstanding of\nUNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999), though, and is\nnot a holding. UNUM focused on California's relatively broad\nnotice-prejudice rule and on California's specific policy\ninterests underlying this rule; it still did not extend\nCalifornia's notice-prejudice rule to an ERISA appeal. See id. at\n372-73. Further, it made no express holding about other states'\nnotice-prejudice rules, see generally id., and simply noted that\n\"[d]ecisions of courts in [some] other States . . . indicate that\nthe notice-prejudice rule addresses policy concerns specific to\n\n\n - 24 -\n\fSee, e.g., Chang, 247 F. App'x at 878 (\"[T]o extend the notice-\n\nprejudice rule to ERISA appeals would extend the rule substantially\n\nbeyond its previous uses.\").\n\n We add that New Hampshire has never suggested that its\n\nnotice-prejudice rule applies to ERISA appeals, and note that the\n\nstate has only applied the doctrine where the facts involve an\n\ninitial claim made in an occurrence-based insurance policy.17 See,\n\ne.g., Bianco Prof'l Ass'n v. Home Ins. Co., 740 A.2d 1051, 1057\n\n(N.H. 1999). There is no reason to think that the New Hampshire\n\ncourts would countenance Fortier's attempted use of the notice-\n\nprejudice rule.\n\n III.\n\n For the stated reasons, the decision of the district\n\ncourt is affirmed. Costs are awarded to Hartford.\n\n\n\n\ninsurance,\" id. at 372. Indeed, the court acknowledged \"States'\nvarying insurance regulations.\" Id. at 376 n.6.\n 17 Fortier also cites a New Hampshire law in support of her\nargument that an initial claim should be treated the same as an\nappeal under New Hampshire's notice-prejudice rule. This law,\ntitled \"Unfair Methods, Acts, and Practices Defined,\" bars\ninsurers from \"[n]ot attempting in good faith to effectuate prompt,\nfair and equitable settlements or compromises of claims in which\nliability has become reasonably clear.\" N.H. Rev. Stat. Ann.\n§ 417:4(XV)(a)(4). This provision is inapposite: Liability was\nnot reasonably clear, and the record does not demonstrate bad faith\non the part of Hartford.\n\n\n - 25 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4369491/", "author_raw": "LYNCH, Circuit Judge"}]} | LYNCH | THOMPSON | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4592238/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Theresa FORTIER, Plaintiff, Appellant, v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; Dartmouth Hitchcock Clinic Company Long Term Disability Plan, Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1752\n\n THERESA FORTIER,\n\n Plaintiff, Appellant,\n\n v.\n\n HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY; DARTMOUTH\n HITCHCOCK CLINIC COMPANY LONG TERM DISABILITY PLAN,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Landya B. McCafferty, U.S. District Judge]\n\n\n Before\n\n Lynch, Thompson, and Barron,\n Circuit Judges.\n\n\n Jonathan M. Feigenbaum for Theresa Fortier.\n Byrne J. Decker, with whom Scott K. Pomeroy and Ogletree,\nDeakins, Nash, Smoak & Stewart, P.C. were on brief, for Hartford\nLife and Accident Insurance Company and Dartmouth Hitchcock Clinic\nCompany Long Term Disability Plan.\n\n\n February 20, 2019\n\f LYNCH, Circuit Judge. A disability insurer, Hartford\n\nLife and Accident Insurance Company (\"Hartford\"), gave notice to\n\nTheresa Fortier that the long-term disability (\"LTD\") benefits it\n\nhad provided her under the Dartmouth Hitchcock Clinic Company Long\n\nTerm Disability Plan (the \"Plan\") would expire because she had not\n\nshown she was eligible for a continuation of those benefits. The\n\nnotice informed her she must file any appeal within 180 days of\n\nreceipt of the notice. She did not do so, filing her appeal about\n\ntwo months after this deadline.\n\n In this Employee Retirement Income Security Act of 1974\n\n(\"ERISA\") suit, Fortier first argues that her appeal was timely\n\nunder the Plan. She then argues that even if untimely, that\n\nuntimeliness should be excused under either of two doctrines: the\n\nERISA substantial compliance doctrine or a state law notice-\n\nprejudice rule. The district court rejected these arguments and\n\ngranted a motion for judgment on the administrative record for\n\nHartford and the Plan. Fortier v. Hartford Life & Accident Ins.\n\nCo., No. 16-CV-322-LM, 2018 WL 3542863, at *12 (D.N.H. July 23,\n\n2018). We also reject all these arguments and affirm. In\n\nrejecting the equitable arguments, our result is similar to that\n\nreached by the Seventh Circuit in Edwards v. Briggs & Stratton\n\nRet. Plan, 639 F.3d 355 (7th Cir. 2011).\n\n\n\n\n - 2 -\n\f I.\n\n We describe the material undisputed facts. Because this\n\ncourt is not reviewing the merits of Hartford's 2013 \"adverse\n\nbenefit determination\"1 on Fortier's claim, facts concerning\n\nFortier's medical condition(s) and medical treatment are described\n\nonly where relevant.\n\nA. Illness and Initial LTD Claim\n\n In January 2008, Fortier was employed as a doctor by the\n\nDartmouth-Hitchcock Clinic, and so became a beneficiary and\n\nparticipant in an LTD benefits plan (the Plan), offered through\n\nHartford. The Plan provided for LTD benefits if a participant\n\nbecame disabled. There is no dispute that Fortier became disabled\n\nin May 2009.\n\n The Plan had limitations on the duration of LTD benefits,\n\nas relevant here, depending on the cause of the disability. One\n\nsuch duration limit was a twenty-four month limitation for\n\n\n\n\n 1 Under ERISA regulations, an \"adverse benefit\ndetermination\" is defined, in part, as:\n\n Any of the following: A denial, reduction, or\n termination of, or a failure to provide or\n make payment (in whole or in part) for, a\n benefit, including any such denial, reduction,\n termination, or failure to provide or make\n payment that is based on a determination of a\n participant's or beneficiary's eligibility to\n participate in a plan . . . .\n\n29 C.F.R. § 2560.503–1(m)(4)(i).\n\n - 3 -\n\fdisability caused by \"Mental Illness and Substance Abuse Benefits\"\n\n(the \"Mental Illness Limitation\"). The Mental Illness Limitation\n\nstated, in part:\n\n If You are Disabled because of:\n 1) Mental Illness that results from any\n cause;\n 2) any condition that may result from\n Mental Illness . . .\n [b]enefits will be payable:\n 1) for as long as you are confined in\n a hospital or other place licensed\n to provide medical care for the\n disabling condition; or\n 2) if not confined, or after you are\n discharged and still Disabled, for\n a total of 24 month(s) for all such\n disabilities during your lifetime.\n\nThe Plan defined \"Mental Illness\" as \"a mental disorder as listed\n\nin the current version of the Diagnostic and Statistical Manual of\n\nMental Disorders, published by the American Psychiatric\n\nAssociation. A Mental Illness may be caused by biological factors\n\nor result in physical symptoms or manifestations.\"\n\n Under the Plan, \"Mental Illness does not include the\n\nfollowing mental disorders outlined in the Diagnostic and\n\nStatistical Manual of Mental Disorders: . . . Delirium, Dementia,\n\nand Amnesic and Other Cognitive Disorders\" (emphasis added). It\n\nhas been Fortier's position that she suffers from a \"Cognitive\n\nDisorder\" such that the limitation period does not apply. To be\n\nclear, Fortier was eligible for and received benefits for at least\n\n\n\n\n - 4 -\n\ftwenty-four months regardless of whether the cause of her\n\ndisability was a \"Mental Illness\" or a \"Cognitive Disorder.\"\n\n In November 2009, Fortier filed a disability claim with\n\nHartford under the Plan, stating that she could not work because\n\nof a disability as of May 6, 2009.2 In a \"Claimant Interview\" with\n\nHartford, Fortier, according to Hartford's contemporaneous notes,\n\nexplained that she had \"got[ten] sick with some form of infection\"\n\nand subsequently had \"significant problems with memory.\" Fortier\n\nmaintained this was corroborated by \"neurophysch[ological]\n\neval[uation].\"\n\n As part of Hartford's review of Fortier's claim,\n\nHartford obtained medical records from several doctors who had\n\ntreated Fortier. Her psychiatrist, Dr. Paul Belliveau, stated in\n\nJune 2009 that Fortier's primary diagnoses were \"Major Depressive\n\nDisorder\" and \"Cognitive Disorder NOS [(Not Otherwise\n\nSpecified)],\" from \"resolving encephalopathy.\"3 Her neurologist\n\n\n\n\n 2 Fortier contracted a viral infection in April 2009 and\nreported subsequent symptoms including issues with memory and\ngeneral \"difficulty with various aspects of . . . cognitive\nfunction.\" On May 6, 2009, Fortier stopped working due to her\nmedical condition(s).\n 3 Fortier has referred to this condition as one caused by\n\"encephalitis,\" meaning inflammation of the brain generally caused\nby an infection (often viral). Merriam Webster Medical Dictionary,\nhttp://www.merriam-webster.com/medical (definition of\n\"encephalitis\"). Dr. Belliveau, however, stated that the cause\nwas \"encephalopathy,\" which is a broader term meaning a \"disease\n\n\n - 5 -\n\fat the time, Dr. Evan Murray, found that the results of\n\nelectroencephalogram (EEG) and brain magnetic resonance imaging\n\n(MRI) tests were normal and stated that \"[i]t is probable that the\n\nmajority of Dr. Fortier's current cognitive difficulties are due\n\nto a mood disorder.\" In Dr. Murray's view, then, \"both the EEG\n\nand brain MRI did not reveal evidence to support such an etiology\n\n[of encephalopathy].\"\n\n After reviewing medical records and having the \"Claimant\n\nInterview\" with Fortier, Hartford notified Fortier in a letter\n\ndated December 18, 2009, that it had approved her disability claim\n\nand would start paying the appropriate benefits effective November\n\n2, 2009. This letter stated that \"[o]n a periodic basis we will\n\nbe providing you with supplemental claim forms for the purpose of\n\nfurnishing us with continued proof of disability.\" When Fortier's\n\nclaim was granted, a Manager at Hartford stated in Hartford's\n\ninternal notes that \"further clarification should be requested to\n\ndetermine whether Dr. Fortier's primary disabling diagnosis is due\n\nto a physical or [a] mental/nervous condition.\" Hartford had\n\npreviously \"coded\" Fortier's disability claim as a physical\n\ndiagnosis.\n\n\n\n\nof the brain[,] especially: one involving alterations of brain\nstructure.\" Id. (definition of \"encephalopathy\").\n\n\n\n - 6 -\n\fB. 2011 Adverse Benefit Determination and 2012 Appeal\n\n In 2010 and 2011, Hartford periodically requested\n\nupdated medical information from Fortier. In response, Dr.\n\nBelliveau stated in January 2011, on an \"Attending Physician's\n\nStatement\" form, that Fortier's \"[c]ognitive dysfunction appears\n\nto be grad[ually] improving\" and the \"[p]rimary concern now is\n\nincreasing depression.\" In February 2010, an Examiner at Hartford\n\nspoke with Fortier on the phone and, according to Hartford's notes,\n\nFortier declined to undergo further testing, saying that further\n\nneuropsychological tests would not make sense. Later, Hartford\n\nrequested updated medical records from Dr. Belliveau on April 8,\n\n2011, which he provided promptly. Dr. Belliveau's notes indicated\n\nthat Fortier was \"reluctant to retake the neuropsychology testing\"\n\nin July 2010. After further requests for information and\n\ncommunication with Fortier, an Examiner at Hartford referred the\n\ncase for a medical review \"for clarification of [Fortier's]\n\ndisabling condition\" in June 2011. In July 2011, a nurse employed\n\nby Hartford determined that Fortier's disabling condition was a\n\nmental illness rather than a cognitive disorder or other physical\n\nailment. In August 2011, Hartford continued to write to Fortier's\n\ntreating physicians for further information. On September 13,\n\n2011, Hartford determined, in its view, that an \"in-depth . . .\n\nreview\" had \"found no support for a physical [disabling\n\ncondition].\"\n\n\n - 7 -\n\f In a letter dated September 13, 2011, Hartford notified\n\nFortier that her benefits would terminate on November 1, 2011,\n\nbecause the Plan's Mental Illness Limitation applied to her\n\ndisability. Hartford's letter stated that \"[i]f you do not agree\n\nwith our denial, in whole or in part, and you wish to appeal our\n\ndecision, you or your authorized representative must write to us\n\nwithin one hundred eighty (180) days from your receipt of this\n\nletter.\" About 174 days after receipt of this letter, Fortier's\n\nattorney requested a sixty-day extension to appeal the adverse\n\nbenefit determination. Hartford granted this request, and the\n\ntime to file an appeal was extended to May 11, 2012. Fortier,\n\nthrough her attorney, appealed. That appeal resulted in an\n\nextension of LTD benefits.\n\n In a letter to Fortier's attorney dated May 22, 2012,\n\nHartford stated that \"we have determined that Dr. Fortier is\n\nentitled to continued LTD benefits beyond November 1, 2011, subject\n\nto all policy provisions and guidelines,\" but did not specify the\n\nreason. This deficiency was cured within two weeks. In a June 4,\n\n2012, follow-up letter to Fortier's attorney, Hartford provided a\n\nreason for not cutting off and for continuing her LTD benefits:\n\n\"As Dr. Fortier was not notified until the letter dated 09/13/2011\n\nof the limitation for Mental Illness Benefits she is subject to\n\nthe limitation beginning 09/13/2011.\" That is, Hartford restarted\n\nthe twenty-four month period (for benefits paid due to a disability\n\n\n - 8 -\n\ffalling under the Mental Illness Limitation) anew from September\n\n13, 2011, because of the lack of prior notice to Fortier regarding\n\nthe Mental Illness Limitation. The letter explicitly stated that\n\n\"no benefits will be payable beyond 09/12/2013,\" except that\n\nbenefits would be payable if, and for as long as, \"[Fortier is]\n\nconfined in a hospital or other place licensed to provided medical\n\ncare for the disabling condition.\" This letter also sought further\n\ninformation from Fortier and Fortier's treating physicians.\n\n After the June 4, 2012, letter, Hartford repeatedly\n\nrequested more information about Fortier's disabling condition\n\nfrom Fortier, Fortier's attorney, and Fortier's healthcare\n\nproviders4 throughout the rest of 2012 and the first seven months\n\nof 2013. A June 6, 2012, letter to Fortier's attorney requested\n\n\"more information to evaluate [Fortier's] claim,\" including an\n\n\"Attending Physician's Statement of Continued Disability\" from\n\neach of Fortier's treating physicians. This letter requested this\n\ninformation by July 9, 2012, but the record does not show that\n\nHartford received any such information by this date. A July 13,\n\n2012, letter referred to the June 6 letter and made the same\n\nrequest for \"more information to evaluate [Fortier's] claim,\" this\n\ntime by August 5, 2012. Hartford received an updated Attending\n\n\n\n 4 All of the letters sent directly to healthcare providers\nattached a proper authorization form, signed by Fortier, for the\nrelease of medical records and personal information.\n\n\n\n - 9 -\n\fPhysician's Statement from Dr. Belliveau, dated August 16, 2012,\n\nbut the record does not show the receipt of an Attending\n\nPhysician's Statement from any other treating physician. An August\n\n7, 2012, letter from Hartford requested assistance from Fortier's\n\nattorney in obtaining records from two particular hospitals where\n\nFortier had received medical care. Nothing in the record suggests\n\nthat Hartford received the requested information from the two\n\nhospitals from Fortier's attorney.\n\n A February 15, 2013, Hartford letter to Fortier's\n\nattorney similarly requested assistance in obtaining information\n\nfrom a medical provider, including updated Attending Physician's\n\nStatements. Dr. Belliveau returned an Attending Physician's\n\nStatement form that stated \"See attached\" and was otherwise nearly\n\nblank. The attached documents were Dr. Belliveau's office notes\n\nregarding Fortier for May 2011 through November 2012. There were\n\nno records pertaining to January and February 2013. A February\n\n18, 2013, letter to Dr. Belliveau requested a completed Attending\n\nPhysician's Statement as well as \"any other information you feel\n\nis pertinent to the processing of [Fortier's] claim.\" A March 29,\n\n2013, letter to Fortier's attorney sought assistance in obtaining\n\na completed form from Dr. Belliveau, rather than office notes and\n\nthe \"incomplete\" form. There is no evidence that this information\n\nwas then provided.\n\n\n\n\n - 10 -\n\f Hartford sent a May 10, 2013, letter to Fortier's\n\nattorney, which stated that the letter was a \"final request for\n\nthe information [an Attending Physician's Statement] we need to\n\nfully evaluate Dr. Fortier's claim for LTD benefits\" (emphasis\n\nadded). It referred to several prior letters requesting\n\ninformation. According to Hartford's internal records, on July 8,\n\n2013, Dr. Belliveau sent a copy of the same incomplete form that\n\nhe had previously sent in February 2013.\n\n Even after this \"final request,\" Hartford sent several\n\nletters in July 2013 -- one directly to Fortier, two to Fortier's\n\nhealthcare providers -- seeking additional records or other\n\npertinent information.\n\nC. 2013 Adverse Benefit Determination\n\n In a letter to Fortier's attorney dated July 17, 2013,\n\nand apparently sent on July 23, 2013, (the \"July 17/23 letter\")\n\nHartford stated that it had \"completed [its] review of [Fortier's]\n\nclaim for benefits\" and it would stop paying LTD benefits to\n\nFortier on September 13, 2013, because it had determined on the\n\nrecord that the Mental Illness Limitation applied to Fortier. The\n\nletter stated: \"If you do not agree with our denial, in whole or\n\nin part, and you wish to appeal our decision, you or your\n\nauthorized representative must write to us within one hundred\n\neighty (180) days from the receipt of this letter\" and briefly\n\n\n\n\n - 11 -\n\fexplained the appeals procedure (such as the address to which\n\ndocumentation should be sent).\n\n A few weeks after this letter, on August 10, 2013,\n\nFortier's attorney wrote to Hartford. He acknowledged notice of\n\nan adverse benefit determination and stated he had reviewed the\n\n\"adverse-benefit-decision-letter\"; he requested Fortier's claim\n\nfile, among other things. Hartford complied with this request on\n\nAugust 19, 2013. Between August 2013 and March 2014, nothing in\n\nthe record indicates that Fortier's attorney retracted his\n\nstatement that Hartford had made an adverse benefit determination.\n\nD. March 2014 Appeal Letter\n\n Fortier did not appeal within 180 days of receipt of the\n\nnotice (the July 17/23 letter). Fortier, through her attorney,\n\nsent a letter dated March 7, 2014, purporting to appeal. This was\n\nabout two months later than 180 days from the receipt of the July\n\n17/23 letter. Hartford responded in a letter dated March 26, 2014,\n\nstating that it would not consider Fortier's appeal because it was\n\nuntimely.5\n\n\n\n\n 5 That same day, the Harford Appeal Specialist who signed\nthe March 26 letter spoke with Fortier's attorney on the phone.\nHartford's call notes from this call state that Fortier's attorney\n\"disagree[d] with the decision because the claimant's last payment\nwas in September,\" but do not show that he offered any other excuse\nfor filing later than 180 days after receiving the July 17/23\nletter.\n\n\n - 12 -\n\fE. Federal Lawsuit\n\n About two years after Fortier's attempted administrative\n\nappeal in March 2014, she filed a two-count complaint in federal\n\ndistrict court under ERISA Section 502(a), 29 U.S.C. § 1132(a) on\n\nJuly 15, 2016. Count One sought reinstatement of LTD benefits,\n\nwhich had been terminated in accordance with the July 17/23 letter.\n\nCount Two sought attorneys' fees and costs under 29 U.S.C.\n\n§ 1132(g)(1). On December 14, 2016, Fortier filed an amended\n\ncomplaint, adding a count challenging the legality of the Mental\n\nIllness Limitation under the Americans with Disabilities Act\n\n(\"ADA\").\n\n On January 27, 2017, Hartford moved to dismiss (styled\n\nas a partial motion to dismiss), arguing that Fortier had not\n\nexhausted her administrative remedies and had not set forth a claim\n\nunder the ADA; Fortier opposed this motion. On September 11, 2017,\n\nthe District Court dismissed the ADA claim but not Count One\n\nregarding the denial of LTD benefits. The parties each then filed\n\nmotions for judgment on the administrative record.\n\n The district court issued a Memorandum and Opinion and\n\nentered judgment in Hartford's favor. Fortier, 2018 WL 3542863.\n\nThe district court held that Fortier had not timely appealed, and\n\nso had not exhausted her administrative remedies. Id. at *11.\n\nThe district court rejected Fortier's equitable arguments that her\n\nappeal was timely under either the substantial compliance doctrine\n\n\n - 13 -\n\for New Hampshire's notice-prejudice rule. Id. at *8-*11. Fortier\n\nappealed from the judgment. Her appeal does not contest the\n\ndismissal of the ADA claim.\n\n II.\n\n We review the district court's grant of judgment on the\n\nadministrative record de novo. Glista v. Unum Life Ins. Co. of\n\nAm., 378 F.3d 113, 125 (1st Cir. 2004). We need not consider the\n\nappropriate standard of review for \"reviewing determinations made\n\nregarding benefits claims,\" Rodríguez–López v. Triple-S Vida,\n\nInc., 850 F.3d 14, 20 (1st Cir. 2017), because our review examines\n\nwhether Fortier exhausted her administrative remedies and not the\n\nmerits of Hartford's adverse benefit determination.\n\n In order to bring suit under a benefits plan subject to\n\nERISA, a beneficiary must exhaust the plan's administrative\n\nremedies. Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d\n\n49, 51-52 (1st Cir. 2014); see Heimeshoff v. Hartford Life &\n\nAccident Ins. Co., 571 U.S. 99, 105 (2013) (noting that \"courts of\n\nappeals have uniformly required that participants exhaust internal\n\nreview before bringing a claim [under ERISA] for judicial review\").\n\n We first address Fortier's arguments about the proper\n\nstarting date for the 180-day time limit for appeals and about\n\nHartford's compliance with the Plan, before considering Fortier's\n\nequitable arguments concerning the substantial compliance doctrine\n\nand New Hampshire's common law notice-prejudice rule.\n\n\n - 14 -\n\fA. ERISA's Requirements and the 180-Day Time Limit\n\n Fortier argues that an ERISA regulation defining an\n\n\"adverse benefit determination\" requires that the 180-day time\n\nlimit start at the date of termination of benefits and not from\n\nthe date of notice. This argument fails.\n\n Fortier's reading of ERISA regulations is plainly wrong.\n\nThe relevant ERISA regulation does not define an \"adverse benefit\n\ndetermination\" as a \"contemporary cessation of benefits,\" as\n\nFortier contends.6 The ERISA regulation concerning notice of an\n\nadverse benefit determination states in part that a complying group\n\nhealth plan7 must \"[p]rovide claimants at least 180 days following\n\nreceipt of a notification of an adverse benefit determination\n\nwithin which to appeal the determination.\" 29 C.F.R. § 2560.503-\n\n1(h)(3)(i) (emphasis added). Notice is the key event. The ERISA\n\n\n\n\n 6 In relevant part, the regulation states that \"[t]he term\n'adverse benefit determination' means: (i) Any of the following:\na denial, reduction, or termination of, or a failure to provide or\nmake payment (in whole or in part) for, a benefit.\" 29 C.F.R.\n§ 2560.503–1(m)(4)(i). Denial of benefits, termination of\nbenefits, and reduction of benefits are listed separately by this\ndefinition, and so it would not make sense for the term \"denial\"\nto mean only the \"termination\" of benefits.\n 7 The parties agree that the Plan was a group health plan.\nUnder ERISA, \"[t]he term 'group health plan' means an employee\nwelfare benefit plan providing medical care . . . to participants\nor beneficiaries directly or through insurance, reimbursement, or\notherwise.\" 29 U.S.C. § 1167(1).\n\n\n\n - 15 -\n\fregulations do not require that the time limit for an\n\nadministrative appeal run from the date of termination of benefits.\n\nB. Hartford's Conduct\n\n Fortier also argues that: Hartford's letters from June\n\n4, 2012, and July 17/23, 2013, were inconsistent; and a portion of\n\nHartford's \"Product Manual\" (in essence, internal guidelines)\n\nshows that Hartford breached its own internal guidelines.8 We\n\nassume for the sake of argument that Hartford's conduct is relevant\n\nhere.\n\n These arguments fail, as Hartford's conduct was\n\nconsistent with ERISA and relevant regulations. The Plan (which\n\nis the governing document) plainly laid out the 180-day notice\n\nrule. Specifically, the Plan's Certificate of Insurance, which\n\nwas expressly incorporated as part of the Plan terms, included --\n\nunder the heading \"Claim Denial: What recourse do I have if my\n\nclaim is denied?\" -- a clear statement that a claimant \"must\n\nrequest a review upon written application within . . . 180 days of\n\nreceipt of claim denial.\" The Certificate of Insurance also\n\n\n 8 Fortier makes a passing reference in the \"Statement of\nthe Relevant Facts\" section of her brief to language in the\nCertificate of Insurance requiring that, \"On any wholly or\npartially denied claim, you or your representative must appeal\nonce to [Hartford] for a full and fair review.\" However, Fortier's\npoint is not clear; if the implicit argument is that the latter\nappeal filed in March 2014 was unnecessary to exhaust Fortier's\nadministrative remedies because she had already appealed in 2012\non the same claim, it is waived for lack of development. See\nUnited States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\n\n\n - 16 -\n\fstated, under the heading \"Appealing Denials of Claims for\n\nBenefits,\" that:\n\n On any wholly or partially denied claim, you\n or your representative must appeal once to\n [Hartford] for a full and fair review. You\n must complete this claim appeal process before\n you file an action in court. Your appeal\n request must be in writing and be received by\n [Hartford] no later than the expiration of 180\n days from the date you received your claim\n denial.\n\nThis document refutes Fortier's argument. Further, the 180-day\n\ntime limit complies with the relevant ERISA regulation. See 29\n\nC.F.R. § 2560.503-1(h)(3)(i).\n\n The July 17/23 letter from Hartford to Fortier's\n\nattorney clearly stated, \"If you do not agree with our denial, in\n\nwhole or in part, and you wish to appeal our decision, you or your\n\nauthorized representative must write to us within one hundred\n\neighty (180) days from the receipt of this letter.\" Fortier\n\nacknowledges that this letter gave notice of her appeal rights.\n\n Fortier contrasts the June 4, 2012, and the July 17/23,\n\n2013, letters from Hartford, arguing that \"[o]ne cannot be an\n\n'adverse benefit determination' and not the other.\" This argument\n\nis simply wrong and mischaracterizes the letters. The June 4,\n\n2012, letter gave reasons for the extension of benefits discussed\n\nin the May 22, 2012, letter, but also warned of the new termination\n\ndate of those benefits. The July 17/23 letter, sent more than a\n\nyear later, announced the final adverse benefit determination and\n\n\n - 17 -\n\fgave notice of the right to appeal within 180 days of receipt of\n\nthe letter.\n\n Fortier also argues that a page from Hartford's Product\n\nManual demonstrates that \"Hartford believes a letter should be\n\nsent advising of presuit appeals rights when the claim is paid and\n\nclosed, not two months before.\" The language Fortier focuses on\n\nis a portion of an instruction to Hartford employees that \"appeal\n\nlanguage should again be utilized once the limited benefit duration\n\nhas been paid and the claim terminated.\" This page is not relevant\n\nhere, and likely not admissible.9\n\n\n\n\n 9 This page from the Product Manual is not part of the\nadministrative record in this case and was obtained by Fortier's\nattorney through discovery in a different and unrelated case in\n2009 (which he acknowledges). \"[S]ome very good reason is needed\nto overcome the presumption that the record on review is limited\nto the record before the administrator.\" Morales-Alejandro v.\nMed. Card Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007) (quoting\nListon v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st\nCir. 2003)).\n In Glista, this court allowed the consideration of two\ninternal insurance company documents; such internal documents \"are\nmost likely to be relevant where they have been authenticated,\nhave been generated or adopted by the plan administrator, concern\nthe policy in question, are timely to the issue in the case, are\nconsistently used, and were known or should have been known by\nthose who made the decision.\" 378 F.3d at 123.\n Here, we do not know whether the Product Manual reflects\nHartford's understanding of the Plan or its appeals procedures.\nFurther, there is no evidence in the record showing that Hartford\nused this Product Manual, or that it was or should have been known\nto the relevant Hartford employees. Taken together, these facts\nmake the Product Manual irrelevant here.\n\n\n\n - 18 -\n\f In summary, Hartford properly followed the terms of the\n\nPlan, which met the ERISA requirements. Hartford's July 17/23\n\nletter was an adverse benefit determination and provided notice of\n\nthe right to appeal. The 180-day time limit began at the receipt\n\nof this letter, and so Fortier's attempted appeal in March 2014\n\nwas untimely. In the ERISA context, \"[h]aphazard waiver of time\n\nlimits would increase the probability of inconsistent results.\"\n\nTerry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998).\n\nC. Inapplicability of the Doctrine of Substantial Compliance\n\n The judicially-created doctrine of \"substantial\n\ncompliance,\" an ERISA doctrine, has been applied to excuse an\n\ninsurer's failure to comply precisely with ERISA's notice\n\nrequirements, so long as the insured person was \"supplied with a\n\nstatement of reasons that, under the circumstances of the case,\n\npermitted a sufficiently clear understanding of the\n\nadministrator's position to permit effective review.\" Niebauer v.\n\nCrane & Co., 783 F.3d 914, 927 (1st Cir. 2015) (quoting Terry, 145\n\nF.3d at 39); see Santana-Díaz v. Metro. Life Ins. Co., 816 F.3d\n\n172, 178 (1st Cir. 2016).10 In fact, the doctrine assists with the\n\n\n 10 Some other circuits have applied a broader version of\nthe doctrine to other situations under ERISA, such as an insurer's\nsubstantial compliance with a change of beneficiary. See, e.g.,\nDavis v. Combes, 294 F.3d 931, 941-42 (7th Cir. 2002) (change of\nbeneficiary); but see Hall v. Metro. Life Ins. Co., 750 F.3d 995,\n1000-01 (8th Cir. 2014) (in a different context, rejecting the\ndoctrine in a change of beneficiary situation). But no circuit\nhas applied the doctrine to excuse a late administrative appeal by\n\n\n - 19 -\n\fprompt review of denial of benefits, and Fortier is arguing for\n\ndelay, not prompt review.\n\n Fortier makes a fairness argument: since Hartford has at\n\nleast once had the doctrine applied in its favor, Fortier should\n\nreceive the benefit of the doctrine. See, e.g., Topalian v.\n\nHartford Life Ins. Co., 945 F. Supp. 2d 294, 339 (E.D.N.Y. 2013)\n\n(finding that \"Hartford was in substantial compliance with the\n\n[Department of Labor]'s regulatory deadlines\" despite Hartford\n\nmaking a late benefit determination). Neither the caselaw nor 29\n\nC.F.R. § 2560.503-1(b)(5)11 supports Fortier's argument.12\n\n We agree generally with Edwards, where the Seventh\n\nCircuit held that the substantial compliance doctrine did not apply\n\n\n\n\na claimant, which is what Fortier asks that we do, and some have\nrejected the argument. See, e.g., Edwards, 639 F.3d at 362-63.\n 11 This regulation addresses the \"[o]bligation to establish\nand maintain reasonable claims procedures.\"\n 12 We do not specifically address all of Fortier's broad\nstatements concerning duties of loyalty, good faith, and fair\ndealing. These assertions rest on the assumption that a \"desire\nto save money had to be the overriding force in Hartford's biased\nclaim adjudication\" and the related assumption that \"Hartford's\nimproper motive caused it to ultimately refuse to review Dr.\nFortier's . . . appeal.\"\n These assumptions are not adequately supported in\nFortier's briefs, nor in the record. Fortier does not point to\nanything in the record that clearly suggests, let alone proves,\nsuch an improper motive. Her primary support for such a motive is\nthe relative speed (about two weeks) in which Hartford granted\nFortier's May 2012 appeal, but this does not itself demonstrate a\n\"biased claim adjudication.\"\n\n\n - 20 -\n\fto a claimant's late appeal from a denial of benefits. The Seventh\n\nCircuit reasoned that:\n\n [I]t seems consistent neither with the\n policies underlying the requirement of\n exhaustion of administrative remedies in ERISA\n cases nor with judicial economy to import into\n the exhaustion requirement the substantial\n compliance doctrine. To so hold would render\n it effectively impossible for plan\n administrators to fix and enforce\n administrative deadlines while involving\n courts incessantly in detailed, case-by-case\n determinations as to whether a given\n claimant's failure to bring a timely appeal\n from a denial of benefits should be excused or\n not.\n\nEdwards, 639 F.3d at 362.13 As in Edwards, see id. at 359, the\n\nPlan here contained a clear deadline for appeals of adverse benefit\n\ndeterminations. In coming to its conclusion, the Seventh Circuit\n\ndetermined that, though the plan administrator had discretion to\n\nconsider an untimely appeal, the claimant \"ha[d] never offered an\n\nexplanation for the untimeliness of her appeal that would warrant\n\nsuch an exercise of discretion in her favor [by the plan\n\nadministrator].\" Id. at 362. The same is true here. We find\n\nconvincing the concerns about the harms that would result from\n\napplying the substantial compliance doctrine to excuse a\n\nclaimant's failure to meet the exhaustion requirement.14\n\n\n\n\n 13 We acknowledge that there may well be ERISA cases where\ncertain exceptions and doctrines can dictate a different outcome.\n\n 14 Fortier has not made an equitable tolling argument.\n\n\n - 21 -\n\f Further, the Supreme Court has discussed ERISA's\n\n\"'careful balancing' between ensuring fair and prompt enforcement\n\nof rights under a plan and the encouragement of the creation of\n\nsuch plans.\" Aetna Health Inc. v. Davila, 542 U.S. 200, 215 (2004)\n\n(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987));\n\nsee also Heimeshoff, 571 U.S. at 108 (noting that a \"focus on the\n\nwritten terms of the plan is the linchpin of\" the ERISA system).\n\nAdoption of Fortier's argument would risk upsetting this balance\n\nand reducing the incentive for employers to set up benefit plans.\n\n Next, Fortier's reliance on 29 C.F.R. § 2560.503-1(b)(5)\n\nis fundamentally misconceived. Nothing in the regulation would be\n\n\"undermined by Hartford when it applies deadlines strictly against\n\nplan participants.\" In fact, \"ERISA's exhaustion requirement\n\nserves different purposes than the denial of claims process,\"\n\nFortier, 2018 WL 3542863, at *10, and so all aspects of such\n\nprocesses need not be the same.\n\n The substantial compliance doctrine does not excuse\n\nFortier's untimely ERISA administrative appeal.15\n\n\n\n\n 15 Fortier makes no argument that we should excuse her\nfailure to exhaust the available administrative remedies. See,\ne.g., Medina v. Metro. Life Ins. Co., 588 F.3d 41, 47 (1st Cir.\n2009); Madera v. Marsh USA, Inc., 426 F.3d 56, 62-63 (1st Cir.\n2005); Turner v. Fallono Cmty. Health Plan, Inc., 127 F.3d 196,\n200 (1st Cir. 1997); Drinkwater v. Metro. Life Ins. Co., 846 F.2d\n821, 826 (1st Cir. 1988).\n\n\n - 22 -\n\fD. Inapplicability of New Hampshire's Notice-Prejudice Rule\n\n Fortier argues next that New Hampshire's common law\n\nnotice-prejudice rule (where an insurer must show prejudice in\n\norder to deny certain limited types of untimely insurance claims)\n\nshould apply to her situation. Our own case law leads us to reject\n\nthe argument, as do decisions of our sister circuits. See Edwards,\n\n639 F.3d at 363; Chang v. Liberty Life Assurance Co., 247 F. App'x\n\n875, 878 (9th Cir. 2007).\n\n This court, discussing ERISA appeals procedures and the\n\nexhaustion requirement, has stated that:\n\n Congress' apparent intent in mandating these\n internal claims procedures was to minimize the\n number of frivolous ERISA lawsuits; promote\n the consistent treatment of benefit claims;\n provide a nonadversarial dispute resolution\n process; and decrease the cost and time of\n claims settlement. It would be anomalous if\n the same reasons which led Congress to require\n plans to provide remedies for ERISA claimants\n did not lead courts to see that those remedies\n are regularly utilized.\n\nTerry, 145 F.3d at 40 (quoting Makar v. Health Care Corp. of the\n\nMid-Atlantic (CareFirst), 872 F.2d 80, 83 (4th Cir. 1989)); accord\n\nSchorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734, 739\n\n(7th Cir. 2012); Kennedy v. Empire Blue Cross & Blue Shield, 989\n\nF.2d 588, 594 (2d Cir. 1993). This court stated further in Terry\n\nthat \"[i]t would hardly make sense to permit the filing of [a late]\n\nappeal . . . in light of the internal claims procedures' aims of\n\nconsistency and economy.\" Terry, 145 F.3d at 40. Adopting\n\n\n - 23 -\n\fFortier's argument would reduce consistency in determinations and\n\nnational consistency. Further, \"permitting appeals well after the\n\ntime for them has passed can only increase the cost and time of\n\nthe settlement process.\" Id. The exhaustion requirement -- and\n\nseveral of its underlying policy goals -- would be undercut by an\n\nextension of a state law notice-prejudice rule to ERISA appeals.\n\nSee Stacy v. Appalachian Regional Healthcare, Inc., 259 F. Supp.\n\n3d 644, 654 (E.D. Ky. 2017).\n\n The Seventh and Ninth Circuits have agreed that state\n\ncommon law notice-prejudice rules do not apply to ERISA appeals.\n\nSee Edwards, 639 F.3d at 363; Chang, 247 F. App'x at 878. Indeed,\n\nno federal court has applied any state's common law notice-\n\nprejudice rule to excuse a late administrative ERISA appeal.16\n\n\n\n\n 16 The District Court for the Eastern District of\nPennsylvania suggested in dictum that an untimely ERISA appeal\nwould have been subject to the notice-prejudice rule. Foley v.\nInt'l Bhd. of Elec. Workers Local Union 98 Pension Fund, 91 F.\nSupp. 2d 797, 803 n.6 (E.D. Pa. 2000) (\"Even if [the plaintiff's]\nappeal were untimely, defendants would not prevail, because they\nhave not shown that they were prejudiced by the untimely\nsubmission, as they are required to do under the Supreme Court's\nrecent decision in UNUM.\")\n This footnote appears to rest on a misunderstanding of\nUNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999), though, and is\nnot a holding. UNUM focused on California's relatively broad\nnotice-prejudice rule and on California's specific policy\ninterests underlying this rule; it still did not extend\nCalifornia's notice-prejudice rule to an ERISA appeal. See id. at\n372-73. Further, it made no express holding about other states'\nnotice-prejudice rules, see generally id., and simply noted that\n\"[d]ecisions of courts in [some] other States . . . indicate that\nthe notice-prejudice rule addresses policy concerns specific to\n\n\n - 24 -\n\fSee, e.g., Chang, 247 F. App'x at 878 (\"[T]o extend the notice-\n\nprejudice rule to ERISA appeals would extend the rule substantially\n\nbeyond its previous uses.\").\n\n We add that New Hampshire has never suggested that its\n\nnotice-prejudice rule applies to ERISA appeals, and note that the\n\nstate has only applied the doctrine where the facts involve an\n\ninitial claim made in an occurrence-based insurance policy.17 See,\n\ne.g., Bianco Prof'l Ass'n v. Home Ins. Co., 740 A.2d 1051, 1057\n\n(N.H. 1999). There is no reason to think that the New Hampshire\n\ncourts would countenance Fortier's attempted use of the notice-\n\nprejudice rule.\n\n III.\n\n For the stated reasons, the decision of the district\n\ncourt is affirmed. Costs are awarded to Hartford.\n\n\n\n\ninsurance,\" id. at 372. Indeed, the court acknowledged \"States'\nvarying insurance regulations.\" Id. at 376 n.6.\n 17 Fortier also cites a New Hampshire law in support of her\nargument that an initial claim should be treated the same as an\nappeal under New Hampshire's notice-prejudice rule. This law,\ntitled \"Unfair Methods, Acts, and Practices Defined,\" bars\ninsurers from \"[n]ot attempting in good faith to effectuate prompt,\nfair and equitable settlements or compromises of claims in which\nliability has become reasonably clear.\" N.H. Rev. Stat. Ann.\n§ 417:4(XV)(a)(4). This provision is inapposite: Liability was\nnot reasonably clear, and the record does not demonstrate bad faith\non the part of Hartford.\n\n\n - 25 -\n[END_CASE]",
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4,593,288 | UNITED STATES of America, Appellee, v. Shawn SAYER, Defendant, Appellant. | United States v. Sayer | 2019-02-22 | 17-2065P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Torruella, Thompson", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2065\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n SHAWN SAYER,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Jon D. Levy, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n William S. Maddox, on brief for appellant.\n Renée M. Bunker, Assistant United States Attorney, Appellate\nChief, and Halsey B. Frank, United States Attorney, on brief for\nappellee.\n\n\n\n February 22, 2018\n\f TORRUELLA, Circuit Judge. In 2012, appellant Shawn\n\nSayer (\"Sayer\") pled guilty to one count of cyberstalking in\n\nviolation of 18 U.S.C. §§ 2261A(2) and 2261(b)(5). He commenced\n\nhis supervised release term in 2016, but it was revoked in 2017\n\nbecause he violated some of his conditions. On appeal, Sayer\n\ncontends that the district court's upwardly-variant sentence\n\nfollowing revocation is procedurally and substantively\n\nunreasonable. Moreover, he challenges the district court's\n\nimposition of a supervised release term in addition to the\n\nstatutory maximum term of imprisonment upon revocation.1 After\n\ncareful review, we affirm.\n\n I. Background\n\n We briefly summarize the relevant facts and procedural\n\ncourse of this case.2\n\n After Jane Doe3 ended her relationship with Sayer in\n\nJanuary 2006, Sayer stalked and harassed her for various years,\n\n\n1 The maximum prison term that may be imposed following revocation\nis set forth at 18 U.S.C. § 3583(e)(3) and is based on the class\nof the original offense.\n2 We draw the uncontested facts underpinning Sayer's original\nsentence from this court's opinion affirming that sentence. See\nUnited States v. Sayer, 748 F.3d 425 (1st Cir. 2014). The facts\nregarding Sayer's conduct while on supervised release derive from\nthe Probation Office's Revocation Report, which the district court\nadopted in its entirety with no objection from Sayer to the\ninformation therein.\n3 As before, we refer to Sayer's victim as \"Jane Doe\" to preserve\n\n -2-\n\fcausing her to seek a protective order against him in state court.\n\nUnited States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014). In the\n\nfall of 2008, Sayer started using the internet to induce random\n\nthird parties to harass Jane Doe. Id. After several unknown,\n\n\"'dangerous'-looking men\" arrived at Doe's house in Maine in\n\nOctober 2008 \"seeking 'sexual entertainment,'\" she discovered an\n\nad in the \"casual encounters\" section of Craigslist that showed\n\npictures of her in lingerie, which Sayer had taken while they were\n\ndating. Id. The ad described a list of sexual acts she was\n\nsupposedly willing to perform and provided her address. Id. Jane\n\nDoe had not posted the ad, nor authorized Sayer to do so. Id.\n\n The unwanted visits from unknown men persisted until\n\nJane Doe moved to her aunt's house in Louisiana and changed her\n\nname, seeking to avoid Sayer's harassment. The visits stopped\n\nuntil August 2009, when, once again, an unknown man showed up at\n\nher aunt's home in Louisiana, referring to Doe by her new name,\n\nclaiming that he had met her over the internet, and seeking a\n\nsexual encounter. Id. Jane Doe later found: 1) videos of herself\n\nand Sayer engaged in sexual acts on various pornography websites\n\ndetailing her name and current Louisiana address; (2) a fraudulent\n\nFacebook account including sexually explicit pictures of her; and\n\n\nher privacy. Sayer, 748 F.3d at 428 n.1. For the same reason,\nwe will refer to Sayer's second victim as \"M.G.\"\n\n\n -3-\n\f(3) a fake account on another social network, Myspace, which\n\nprovided both her old and new names, her Louisiana address, and\n\nlinks to pornography sites hosting sex videos of her. Id. at 428-\n\n429. After police searched Sayer's home in June 2010, a forensic\n\nanalysis of his computer showed that between June and November\n\n2009, Sayer had created \"numerous fake profiles\" on Yahoo!\n\nMessenger using a variation of Jane Doe's name. Id. at 429. In\n\nmany cases, \"Sayer, posing as Jane Doe, chatted with men online\n\nand encouraged them to visit [her] at her home in Louisiana.\"4\n\nId.\n\n In 2012, Sayer pled guilty to cyberstalking. 5 The\n\ndistrict court imposed a prison term of sixty months, the statutory\n\nmaximum, to be followed by three years of supervised release.\n\n\n\n\n4 Jane Doe was forced to return to Maine in November 2009, as the\nmen that Sayer sent to the Louisiana residence scared her aunt and\ncousin, with whom she was staying. Id.\n5 The indictment encompassed conduct from \"about July 2009, the\nexact date being unknown, until about November 2009,\" and alleged\nthat the defendant:\n\n with the intent to injure, harass, and cause substantial\n emotional distress to a person in another state, namely,\n Louisiana, used facilities of interstate or foreign\n commerce, including electronic mail and internet\n websites, to engage in a course of conduct that caused\n substantial emotional distress to the victim and placed\n her in reasonable fear of death or serious bodily injury.\n\n\n -4-\n\f Sayer commenced his supervised release in February 2016.\n\nDuring the initial supervised release orientation, Sayer\n\nidentified several goals, including finding full-time employment,\n\nsaving money, and purchasing a truck. He worked in the school\n\nlunch program for the City of Portland while searching for\n\ncarpentry-related employment. 6 In May 2016, Sayer secured\n\nemployment with a construction company in the carpentry industry.\n\n In June 2016, the Probation Office filed a petition to\n\nmodify Sayer's supervised release conditions to add a requirement\n\nthat he participate in a Computer and Internet Monitoring Program\n\n(\"CIMP\"), which involved partial or full restriction of his use of\n\ncomputers and the internet and required him to submit to\n\nunannounced searches of his computer, storage media, and\n\nelectronic or internet-capable devices. Despite Sayer's\n\nopposition, the district court imposed the CIMP condition,\n\nexplaining that it had inadvertently omitted it at the time of\n\nSayer's original sentencing but that it was warranted considering\n\nthe \"nature and seriousness\" of Sayer's underlying offense.\n\n During his supervised release term, Sayer began a\n\nrelationship with M.G. On October 25, 2016, Sayer called the\n\n\n\n6 He secured this employment while serving the final part of his\ncustodial sentence (pre-release) in the Pharos House Residential\nReentry Center.\n\n\n -5-\n\fProbation Officer to inform that \"things [had gone] sour\" with\n\nM.G. While Sayer insisted that M.G. \"never explicitly asked him\n\nto not contact her,\" he acknowledged that she had blocked\n\ncommunications with him on Facebook and ignored multiple text\n\nmessages. The Probation Officer encouraged him to stop contacting\n\nM.G. During a meeting with Sayer days later, the Probation Officer\n\nbrought up Sayer's communications with M.G., emphasizing that\n\nSayer was \"exhibiting at risk communication that reached an\n\nobsessive level.\" The Probation Officer informed Sayer that his\n\ninternet access would be restricted for a while to allow the\n\nProbation Office to investigate the extent of his communication\n\nwith M.G.\n\n On November 18, 2016, M.G. denied any issues of\n\nharassment and said she and Sayer were \"working things out.\"\n\nHence, on November 29, 2016, the Probation Officer informed Sayer\n\nthat he would restore his internet access, based on the results of\n\nthe investigation. The Probation Officer later discovered that\n\nSayer continued to use the internet during his period of\n\nrestriction as the software installed by the Probation Office had\n\nfailed to block his access. When confronted, Sayer said that\n\nalthough he had felt \"shocked\" when he was able to access the\n\ninternet after being told he would not be able to, he just \"went\n\nalong with it.\"\n\n\n -6-\n\f In a meeting on January 4, 2017, Sayer and the Probation\n\nOfficer once again discussed Sayer's communications with M.G., as\n\nshe had recently requested he \"leave her alone.\" Sayer insisted\n\nthat his multiple messages were \"his way of 'helping' her through\n\nperiods of depression.\" He seemed \"very bothered\" by the breakdown\n\nof his relationship and expressed concern for an iPhone and iPad\n\nthat he had let M.G. borrow and she had not returned. The\n\nProbation Officer suggested a mental health assessment, but Sayer\n\nsaid he was \"not really that upset.\" During this meeting, the\n\nProbation Officer also discussed nude photos of M.G. in Sayer's\n\ncellphone, some in which M.G. was \"not looking at the camera and\n\nit [was] unclear how aware she [was].\" The Probation Officer\n\ninstructed Sayer to inform M.G. that his cellphone was monitored\n\nand other people had access to her photos.\n\n In mid-January 2017, the Probation Office discovered a\n\nGPS tracker application in Sayer's cellphone, which Sayer admitted\n\nto connecting to the iPad he had lent M.G.7 The following month,\n\nSayer scheduled a mental health assessment as instructed by the\n\nProbation Office, which he referred to as \"ridiculous.\"\n\n\n7 Sayer alleged that he installed the tracker because he wanted\nto know whether M.G. had mailed his iPad back. He provided\nevidence that it had been disabled. From the Revocation Report,\nit is unclear whether Sayer had previously disabled the tracker of\nhis own volition, or whether he had only done so after prodding by\nthe Probation Office.\n\n\n -7-\n\f In late February 2017, M.G. sought a no contact order\n\nregarding Sayer from the Ellsworth, Maine Police Department, and\n\nas a result Sayer was verbally instructed to cease all\n\ncommunications with her. On May 8, 2017, M.G. contacted the\n\nProbation Office to inform that Sayer had been obsessively\n\ncontacting her via phone and email. She reported that he called\n\nfrom different numbers and was able to mask his phone number to\n\nappear as though another contact was calling. She also reported\n\nhe emailed her from multiple accounts.\n\n On May 23, 2017, the Probation Office filed a petition\n\nto revoke Sayer's supervised release, alleging that Sayer had\n\nviolated the CIMP condition by opening and using a series of online\n\naccounts without prior permission from Probation. Sayer waived\n\nthe preliminary revocation hearing, and the district court\n\nscheduled the final revocation hearing for October 24, 2017. On\n\nthat day, Sayer waived the right to a hearing and admitted to\n\ncommitting the violations. Specifically, Sayer admitted to: (1)\n\ninstalling twenty-two \"spoofing\" applications on his phone, which\n\nenabled him to place outgoing phone calls under the guise of a\n\ndifferent phone number, to call M.G.; (2) downloading twenty\n\nunapproved messenger applications; (3) opening 4 different email\n\naccounts, 3 of which were never reported to, nor approved by, the\n\nProbation Office, and were used to send multiple messages to M.G.;\n\n\n -8-\n\fand (4) creating two dating profiles appearing to resemble M.G.,\n\nseeking to pose as a representation of her to find out if she was\n\ndating other men.\n\n Sayer also accepted the Probation Officer's Revocation\n\nReport without any objection to its content, except for a complaint\n\nthat it omitted some \"mutual\" communications between M.G. and him.\n\nWithout any further objection from Sayer, the district court\n\nadopted the Revocation Report in its entirety as findings in\n\nsupport of the revocation sentence. While the Guidelines\n\nSentencing Range was five to eleven months, the court ultimately\n\nvaried upwards to impose a sentence of a twenty-four-month prison\n\nterm and twelve months of supervised release.\n\n II. Discussion\n\n \"Appellate review of federal criminal sentences is\n\ncharacterized by a frank recognition of the substantial discretion\n\nvested in a sentencing court.\" United States v. Flores-Machicote,\n\n706 F.3d 16, 20 (1st Cir 2013). We review sentencing decisions\n\nunder the United States Sentencing Guidelines (\"U.S.S.G.\") for\n\n\"reasonableness, regardless of whether they fall inside or outside\n\nthe applicable [Guidelines Sentencing Range].\" United States v.\n\nTurbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our \"review\n\nprocess is bifurcated: we first determine whether the sentence\n\nimposed is procedurally reasonable and then determine whether it\n\n\n -9-\n\fis substantively reasonable.\" United States v. Clogston, 662 F.3d\n\n588, 590 (1st Cir. 2011).\n\nA. Procedural Reasonableness of Sayer's Sentence\n\n We must ensure that the district court did not commit\n\nany \"significant procedural error\" to arrive at a sentence. Gall\n\nv. United States, 552 U.S. 38, 51 (2007). Examples of this include\n\n\"failing to calculate (or improperly calculating) the [GSR],\n\ntreating the Guidelines as mandatory, failing to consider the [18\n\nU.S.C.] § 3553(a) factors, selecting a sentence based on clearly\n\nerroneous facts, or failing to adequately explain the chosen\n\nsentence-including an explanation for any deviation from the\n\nGuidelines range.\" Flores-Machicote, 706 F.3d at 20 (alterations\n\nin original) (quoting Gall, 552 U.S. at 51).\n\n Preserved claims of sentencing error are generally\n\nreviewed for abuse of discretion. United States v. Márquez-\n\nGarcía, 862 F.3d 143, 145 (1st Cir. 2017). However, when a\n\ndefendant fails to contemporaneously object to the procedural\n\nreasonableness of a court's sentencing determination, we review\n\nfor plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,\n\n226 (1st Cir. 2015). Under the plain error standard, \"an appellant\n\nmust show: '(1) that an error occurred (2) which was clear or\n\nobvious and which not only (3) affected the [appellant's]\n\nsubstantial rights, but also (4) seriously impaired the fairness,\n\n\n -10-\n\fintegrity, or public reputation of judicial proceedings.'\"\n\nMárquez-García, 862 F.3d at 145 (alterations in original)(quoting\n\nUnited States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Sayer\n\ndid not raise his procedural reasonableness argument before the\n\nsentencing court, so we review for plain error.8 See United States\n\nv. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).\n\n Sayer claims that the district court procedurally erred\n\nby failing to adequately explain the rationale for its chosen\n\nsentence. The revocation hearing transcript, however, refutes\n\nSayer's argument. The district court's remarks at sentencing made\n\nclear that it considered the factors required by 18 U.S.C.\n\n§ 3583(e), weighed them, and used its discretion to arrive at a\n\nreasoned, defensible decision. The court primarily stressed three\n\nfactors in support of its variant sentence: (1) Sayer's criminal\n\n\n\n8 Sayer argues that he properly preserved all of his arguments on\nappeal. As the transcript of the revocation hearing reflects,\nSayer's attorney stated: \"I would like to object to the upward\nvariance. I think that is necessary to preserve all of Mr. Sayer's\nappeal rights.\" This is insufficient. \"A general objection to\nthe procedural reasonableness of a sentence is not sufficient to\npreserve a specific challenge to any of the sentencing court's\nparticularized findings. . . . [A]n objection must be sufficiently\nspecific to call the district court's attention to the asserted\nerror.\" United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st\nCir. 2017); see also United States v. Sosa-González, 900 F.3d 1,\n4 (1st Cir. 2018) (finding \"we object as to the sentence because\nwe believe it is unreasonable\" to be insufficient to preserve a\nprocedural objection). In any event, even reviewed under the\nabuse of discretion standard, Sayer cannot meet his burden.\n\n\n -11-\n\fhistory and the similarity of Sayer's conduct on supervised release\n\nto the conduct for which he had been convicted; (2) Sayer's\n\nunwillingness to accept responsibility; and (3) the need to protect\n\nthe public from further crimes.\n\n First, the court expressed that Sayer's behavior while\n\non supervised release \"demonstrates that he has continued with the\n\nsame sort of resistance to authority and compulsive thinking that\n\nresulted in his underlying cyberstalking conviction.\" It\n\nexplained that although Sayer's conduct while on supervision did\n\nnot \"rise to the level\" of the conduct for which he was originally\n\nconvicted, \"it certainly hearken[ed] toward it.\" Moreover, the\n\ncourt noted that Sayer had a Criminal History Category of III and\n\nemphasized that \"more important than that number is the nature of\n\nhis history,\" which is a:\n\n chronic pattern of stalking . . . and behavior involving\n violations of protective orders and bail orders which\n . . . [all] paint[] a picture . . . of a defendant who\n is absolutely resistant to court order, court\n supervision and respecting the rule of law as it pertains\n to . . . employing cell phones and the Internet to\n interfere with others.\n\n As to Sayer's unwillingness to accept responsibility,\n\nthe court emphasized that Sayer had described the Probation\n\nOfficer's order that he receive a mental health assessment as\n\n\"ridiculous\" and that \"today even I hear him blaming his\n\nrelationship with M.G. for his problems . . . as opposed to\n\n\n -12-\n\faccepting full responsibility.\" Moreover, the court stressed the\n\neffect of Sayer's conduct on others and explained: \"[t]o some\n\ndegree the analogy to a drug addict is not appropriate. This is\n\nnot a situation where he is using illegal substances to his own\n\ndetriment only. This is a situation in which his behavior harms\n\nothers.\" Thus, the court ultimately concluded that: \"an upward\n\nvariant sentence is essential, because I have before me a defendant\n\nwho cannot control his behavior after all this history and for\n\nthat reason poses what I regard to be a substantial risk of harm\n\nto the public.\"\n\n This explanation was adequate, more than enough to\n\ndefeat Sayer's procedural challenge under both the plain error and\n\nabuse of discretion standards. Sentencing courts need not recount\n\nevery detail of their decisional processes; identification of the\n\n\"main factors behind [the] decision\" is enough. United States v.\n\nVargas-García, 794 F.3d 162, 166 (1st Cir. 2015). And although\n\nSayer contends that the court did not sufficiently explain why it\n\nrejected his arguments for a lower prison term, courts are not\n\nrequired to specifically explain why they rejected a particular\n\ndefense argument in favor of a lower sentence. See id. at 167\n\n(holding that while a \"sentencing court may have a duty to explain\n\nwhy it chose a particular sentence, it has 'no corollary duty to\n\n\n\n\n -13-\n\fexplain why it eschewed other suggested sentences'\" (quoting\n\nUnited States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014))).\n\n In any case, the court did explain that although it had\n\nconsidered Sayer's progress while on supervised release, it\n\n\"pale[d] next to the continued absence of insight on his part as\n\nto the type of thinking and the type of behavior which is unlawful\n\nand is harmful, and it's harmful to other people, not just to him.\"\n\nHence, the district court's explanation of its variant sentence\n\nwas sufficient, and we discern no error, much less plain error.\n\nB. Substantive Reasonableness of Sayer's Sentence9\n\n \"[I]f the sentence is procedurally sound, we then ask\n\nwhether the sentence is substantively reasonable.\" United States\n\nv. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). A sentence is\n\nsubstantively reasonable so long as the sentencing court has\n\nprovided a \"plausible sentencing rationale\" and reached a\n\n\"defensible result.\" United States v. Martin, 520 F.3d 87, 96\n\n(1st Cir. 2008). In assessing the substantive reasonableness of\n\na sentence, this court should \"take into account the totality of\n\nthe circumstances, including the extent of any variance from the\n\nGuidelines [Sentencing] [R]ange.\" United States v. Contreras-\n\nDelgado, 913 F.3d 232, 243 (1st Cir. 2019) (quoting Gall, 552 U.S.\n\n\n9 Sayer claims this issue should be reviewed for abuse of\ndiscretion, and the government does not contest it.\n\n\n -14-\n\fat 51). \"[T]he greater the variance, the more compelling the\n\nsentencing court's justification must be.\" United States v.\n\nVázquez-Vázquez, 852 F.3d 62, 67 (1st Cir. 2017) (quoting United\n\nStates v. Guzmán-Fernández, 824 F.3d 173, 178 (1st Cir. 2016)).\n\n Sayer's violation while on supervised release was a\n\nGrade C violation.10 Because Sayer had a Criminal History Category\n\nof III, the Guidelines Sentencing Range of imprisonment was five\n\nto eleven months. By imposing an imprisonment term of twenty-four\n\nmonths on revocation, the district court varied upwards by thirteen\n\nmonths. Sayer argues that his sentence is longer than necessary,\n\nand therefore substantially unreasonable because the court: (1)\n\n\"failed to calibrate the decisional scales\" by not accounting for\n\n\"obvious mitigating factors\"; and (2) left no room for harsher\n\nsentences for those with higher Criminal History Categories and\n\nmore serious violations.\n\n Sayer's arguments are without merit. To begin with, the\n\ndistrict court clearly stated that it considered the sentencing\n\nfactors set forth in 18 U.S.C. § 3553(a), including \"Sayer's\n\n\n\n10 The Sentencing Commission's policy statement divides conduct\nthat violates conditions of supervision into three categories:\nGrade A, B, and C violations. U.S.S.G. § 7B1.1(a). There are two\ntypes of Grade C violations: \"(A) a federal, state, or local\noffense punishable by a term of imprisonment of one year or less;\nor (B) a violation of any other condition of supervision.\"\nU.S.S.G. § 7B1.1(a)(3)(emphasis added).\n\n\n -15-\n\fpersonal history and characteristics\" and \"the need for the\n\nsentence imposed to . . . avoid unwanted sentencing disparities.\"\n\nSee United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir.\n\n2014) (noting that a judge's statement that he has considered all\n\nof the § 3553(a) factors is entitled to significant weight).\n\nMoreover, the court adopted the Revocation Report, which mentioned\n\nthe mitigating factors that Sayer refers to, as findings of fact\n\nin support of the sentence that it would impose. Finally, the\n\ndistrict court even expressly mentioned the \"progress\" that Sayer\n\nachieved while on supervised release, but ultimately concluded\n\nthat it \"pale[d]\" compared to his harmful thinking and behavior.\n\nHence, it is evident that the district court considered all the\n\nfactors it was required to.\n\n In essence, then, Sayer's challenge is directed at the\n\nsentencing judge's weighing of the factors that affect sentencing.\n\nHe understands that the district judge should have given certain\n\nmitigating factors greater significance. However, although the\n\ndistrict court must consider a \"myriad of relevant factors,\" the\n\nweighing of those factors is \"within the court's informed\n\ndiscretion.\" Clogston, 662 F.3d at 593. Moreover, the reasons\n\ncited by the district court and described above, including Sayer's\n\nextensive criminal history and the seriousness of his offenses,\n\nhis proclivity upon release towards the type of conduct for which\n\n\n -16-\n\fhe had been convicted, his unwillingness to accept responsibility,\n\nand the need to protect the public from further crimes, constitute\n\na \"plausible rationale\" for a \"defensible\" sentence. See Martin,\n\n520 F.3d at 91, 98. And while Sayer argues that the sentence\n\nimposed did not leave room for harsher sentences for those with\n\nhigher Criminal History Categories and more serious violations, it\n\nis evident from the hearing transcript that the sentencing judge\n\nconsidered Sayer's criminal history and the nature of his\n\nviolations to be serious enough to warrant the sentence imposed.\n\nSee Clogston, 662 F.3d at 592 (\"There is no one reasonable sentence\n\nin any given case but, rather, a universe of reasonable sentencing\n\noutcomes.\"). Thus, considering the totality of the circumstances,\n\nwe find the district court's sentence to be substantively\n\nreasonable and not an abuse of discretion. 11\n\n\nC. Sayer's Additional Term of Supervised Release upon Revocation\n\n Finally, Sayer argues for the first time on appeal that\n\nthe district court erred by imposing a term of supervised release\n\nin addition to the statutory maximum term of imprisonment upon\n\nrevocation. He contends that because the court sentenced him to\n\n\n11 We have reviewed the cases Sayer cited in his briefs and in a\npost-argument letter submitted pursuant to Federal Rule of\nAppellate Procedure 28(j), but they fail to persuade us to the\ncontrary. They are either distinguishable, lacking a record from\nwhich the appellate court could have deciphered a sentencing\nrationale, or inapposite.\n\n\n -17-\n\fthe statutory maximum imprisonment term on revocation, it could\n\nnot also impose an additional term of supervised release. He\n\nbases this argument on the Probation Officer's erroneous\n\nparaphrasing of U.S.S.G. § 7B1.3(g)(2) in the Revocation Report12\n\nand several cited cases that imposed a statutory maximum sentence\n\non revocation but no additional term of supervised release.\n\n The plain text of 18 U.S.C. § 3583(h) and U.S.S.G.\n\n§ 7B1.3(g)(2) negates Sayer's position. Section 3583(h)\n\nestablishes that:\n\n When a term of supervised release is revoked and the\n defendant is required to serve a term of imprisonment,\n the court may include a requirement that the defendant\n be placed on a term of supervised release after\n imprisonment. The length of such a term of supervised\n release shall not exceed the term of supervised release\n authorized by statute for the offense that resulted in\n the original term of supervised release, less any term\n of imprisonment that was imposed upon revocation of\n supervised release.\n\n(Emphasis added). U.S.S.G. § 7B1.3(g)(2) basically mirrors the\n\nstatute. Here, Sayer does not dispute that the maximum supervised\n\nrelease term authorized for his original cyberstalking offense is\n\n\n12 On page 5 of the Revocation Report, the Probation Officer\nerroneously appears to suggest that supervised release can be\nimposed upon revocation only if the term of imprisonment imposed\nis \"less\" than the maximum term of imprisonment imposable upon\nrevocation. Nevertheless, the Probation Officer correctly stated\nthe calculation on the Revocation Report's page 4 when he explained\nthat \"the term of supervised release that can be imposed upon\nrevocation is 36 months, less any imprisonment imposed for this\nrevocation.\"\n\n\n -18-\n\fthirty-six months. According to Section 3583(h), the district\n\ncourt could impose a second supervised release term as long as it\n\ndid not exceed the term of supervised release authorized for the\n\nunderlying conviction (i.e., thirty-six months), less the term of\n\nimprisonment that was imposed upon revocation (i.e., twenty-four\n\nmonths). As thirty-six minus twenty-four equals twelve, simple\n\narithmetic reveals that the new twelve-month supervised release\n\nterm does not exceed the maximum allowed upon revocation.\n\n Finally, the fact that some district courts exercise\n\ntheir discretion to impose only the maximum statutory imprisonment\n\nterm upon revocation, without a new supervised release term,13 does\n\nnot affect the district court's authority here to impose the\n\ntwelve-month supervised release term upon revocation. Thus, Sayer\n\nhas not been able to show any error in the district court's\n\nimposition of his supervised release term on revocation.\n\n III. Conclusion\n\n For the reasons expounded above, Sayer's revocation\n\nsentence is affirmed.\n\n Affirmed.\n\n\n\n\n13 See United States v. Márquez-García, 862 F.3d 143, 145 (1st\nCir. 2017), United States v. Alejandro-Rosado, 878 F.3d 435, 438\n(1st Cir. 2017), United States v. Soto-Soto, 855 F.3d 445, 448\n(1st Cir. 2017).\n\n\n -19-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370541/", "author_raw": "TORRUELLA, Circuit Judge"}]} | HOWARD | TORRUELLA | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593288/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Shawn SAYER, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 17-2065\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n SHAWN SAYER,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n\n [Hon. Jon D. Levy, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n William S. Maddox, on brief for appellant.\n Renée M. Bunker, Assistant United States Attorney, Appellate\nChief, and Halsey B. Frank, United States Attorney, on brief for\nappellee.\n\n\n\n February 22, 2018\n\f TORRUELLA, Circuit Judge. In 2012, appellant Shawn\n\nSayer (\"Sayer\") pled guilty to one count of cyberstalking in\n\nviolation of 18 U.S.C. §§ 2261A(2) and 2261(b)(5). He commenced\n\nhis supervised release term in 2016, but it was revoked in 2017\n\nbecause he violated some of his conditions. On appeal, Sayer\n\ncontends that the district court's upwardly-variant sentence\n\nfollowing revocation is procedurally and substantively\n\nunreasonable. Moreover, he challenges the district court's\n\nimposition of a supervised release term in addition to the\n\nstatutory maximum term of imprisonment upon revocation.1 After\n\ncareful review, we affirm.\n\n I. Background\n\n We briefly summarize the relevant facts and procedural\n\ncourse of this case.2\n\n After Jane Doe3 ended her relationship with Sayer in\n\nJanuary 2006, Sayer stalked and harassed her for various years,\n\n\n1 The maximum prison term that may be imposed following revocation\nis set forth at 18 U.S.C. § 3583(e)(3) and is based on the class\nof the original offense.\n2 We draw the uncontested facts underpinning Sayer's original\nsentence from this court's opinion affirming that sentence. See\nUnited States v. Sayer, 748 F.3d 425 (1st Cir. 2014). The facts\nregarding Sayer's conduct while on supervised release derive from\nthe Probation Office's Revocation Report, which the district court\nadopted in its entirety with no objection from Sayer to the\ninformation therein.\n3 As before, we refer to Sayer's victim as \"Jane Doe\" to preserve\n\n -2-\n\fcausing her to seek a protective order against him in state court.\n\nUnited States v. Sayer, 748 F.3d 425, 428 (1st Cir. 2014). In the\n\nfall of 2008, Sayer started using the internet to induce random\n\nthird parties to harass Jane Doe. Id. After several unknown,\n\n\"'dangerous'-looking men\" arrived at Doe's house in Maine in\n\nOctober 2008 \"seeking 'sexual entertainment,'\" she discovered an\n\nad in the \"casual encounters\" section of Craigslist that showed\n\npictures of her in lingerie, which Sayer had taken while they were\n\ndating. Id. The ad described a list of sexual acts she was\n\nsupposedly willing to perform and provided her address. Id. Jane\n\nDoe had not posted the ad, nor authorized Sayer to do so. Id.\n\n The unwanted visits from unknown men persisted until\n\nJane Doe moved to her aunt's house in Louisiana and changed her\n\nname, seeking to avoid Sayer's harassment. The visits stopped\n\nuntil August 2009, when, once again, an unknown man showed up at\n\nher aunt's home in Louisiana, referring to Doe by her new name,\n\nclaiming that he had met her over the internet, and seeking a\n\nsexual encounter. Id. Jane Doe later found: 1) videos of herself\n\nand Sayer engaged in sexual acts on various pornography websites\n\ndetailing her name and current Louisiana address; (2) a fraudulent\n\nFacebook account including sexually explicit pictures of her; and\n\n\nher privacy. Sayer, 748 F.3d at 428 n.1. For the same reason,\nwe will refer to Sayer's second victim as \"M.G.\"\n\n\n -3-\n\f(3) a fake account on another social network, Myspace, which\n\nprovided both her old and new names, her Louisiana address, and\n\nlinks to pornography sites hosting sex videos of her. Id. at 428-\n\n429. After police searched Sayer's home in June 2010, a forensic\n\nanalysis of his computer showed that between June and November\n\n2009, Sayer had created \"numerous fake profiles\" on Yahoo!\n\nMessenger using a variation of Jane Doe's name. Id. at 429. In\n\nmany cases, \"Sayer, posing as Jane Doe, chatted with men online\n\nand encouraged them to visit [her] at her home in Louisiana.\"4\n\nId.\n\n In 2012, Sayer pled guilty to cyberstalking. 5 The\n\ndistrict court imposed a prison term of sixty months, the statutory\n\nmaximum, to be followed by three years of supervised release.\n\n\n\n\n4 Jane Doe was forced to return to Maine in November 2009, as the\nmen that Sayer sent to the Louisiana residence scared her aunt and\ncousin, with whom she was staying. Id.\n5 The indictment encompassed conduct from \"about July 2009, the\nexact date being unknown, until about November 2009,\" and alleged\nthat the defendant:\n\n with the intent to injure, harass, and cause substantial\n emotional distress to a person in another state, namely,\n Louisiana, used facilities of interstate or foreign\n commerce, including electronic mail and internet\n websites, to engage in a course of conduct that caused\n substantial emotional distress to the victim and placed\n her in reasonable fear of death or serious bodily injury.\n\n\n -4-\n\f Sayer commenced his supervised release in February 2016.\n\nDuring the initial supervised release orientation, Sayer\n\nidentified several goals, including finding full-time employment,\n\nsaving money, and purchasing a truck. He worked in the school\n\nlunch program for the City of Portland while searching for\n\ncarpentry-related employment. 6 In May 2016, Sayer secured\n\nemployment with a construction company in the carpentry industry.\n\n In June 2016, the Probation Office filed a petition to\n\nmodify Sayer's supervised release conditions to add a requirement\n\nthat he participate in a Computer and Internet Monitoring Program\n\n(\"CIMP\"), which involved partial or full restriction of his use of\n\ncomputers and the internet and required him to submit to\n\nunannounced searches of his computer, storage media, and\n\nelectronic or internet-capable devices. Despite Sayer's\n\nopposition, the district court imposed the CIMP condition,\n\nexplaining that it had inadvertently omitted it at the time of\n\nSayer's original sentencing but that it was warranted considering\n\nthe \"nature and seriousness\" of Sayer's underlying offense.\n\n During his supervised release term, Sayer began a\n\nrelationship with M.G. On October 25, 2016, Sayer called the\n\n\n\n6 He secured this employment while serving the final part of his\ncustodial sentence (pre-release) in the Pharos House Residential\nReentry Center.\n\n\n -5-\n\fProbation Officer to inform that \"things [had gone] sour\" with\n\nM.G. While Sayer insisted that M.G. \"never explicitly asked him\n\nto not contact her,\" he acknowledged that she had blocked\n\ncommunications with him on Facebook and ignored multiple text\n\nmessages. The Probation Officer encouraged him to stop contacting\n\nM.G. During a meeting with Sayer days later, the Probation Officer\n\nbrought up Sayer's communications with M.G., emphasizing that\n\nSayer was \"exhibiting at risk communication that reached an\n\nobsessive level.\" The Probation Officer informed Sayer that his\n\ninternet access would be restricted for a while to allow the\n\nProbation Office to investigate the extent of his communication\n\nwith M.G.\n\n On November 18, 2016, M.G. denied any issues of\n\nharassment and said she and Sayer were \"working things out.\"\n\nHence, on November 29, 2016, the Probation Officer informed Sayer\n\nthat he would restore his internet access, based on the results of\n\nthe investigation. The Probation Officer later discovered that\n\nSayer continued to use the internet during his period of\n\nrestriction as the software installed by the Probation Office had\n\nfailed to block his access. When confronted, Sayer said that\n\nalthough he had felt \"shocked\" when he was able to access the\n\ninternet after being told he would not be able to, he just \"went\n\nalong with it.\"\n\n\n -6-\n\f In a meeting on January 4, 2017, Sayer and the Probation\n\nOfficer once again discussed Sayer's communications with M.G., as\n\nshe had recently requested he \"leave her alone.\" Sayer insisted\n\nthat his multiple messages were \"his way of 'helping' her through\n\nperiods of depression.\" He seemed \"very bothered\" by the breakdown\n\nof his relationship and expressed concern for an iPhone and iPad\n\nthat he had let M.G. borrow and she had not returned. The\n\nProbation Officer suggested a mental health assessment, but Sayer\n\nsaid he was \"not really that upset.\" During this meeting, the\n\nProbation Officer also discussed nude photos of M.G. in Sayer's\n\ncellphone, some in which M.G. was \"not looking at the camera and\n\nit [was] unclear how aware she [was].\" The Probation Officer\n\ninstructed Sayer to inform M.G. that his cellphone was monitored\n\nand other people had access to her photos.\n\n In mid-January 2017, the Probation Office discovered a\n\nGPS tracker application in Sayer's cellphone, which Sayer admitted\n\nto connecting to the iPad he had lent M.G.7 The following month,\n\nSayer scheduled a mental health assessment as instructed by the\n\nProbation Office, which he referred to as \"ridiculous.\"\n\n\n7 Sayer alleged that he installed the tracker because he wanted\nto know whether M.G. had mailed his iPad back. He provided\nevidence that it had been disabled. From the Revocation Report,\nit is unclear whether Sayer had previously disabled the tracker of\nhis own volition, or whether he had only done so after prodding by\nthe Probation Office.\n\n\n -7-\n\f In late February 2017, M.G. sought a no contact order\n\nregarding Sayer from the Ellsworth, Maine Police Department, and\n\nas a result Sayer was verbally instructed to cease all\n\ncommunications with her. On May 8, 2017, M.G. contacted the\n\nProbation Office to inform that Sayer had been obsessively\n\ncontacting her via phone and email. She reported that he called\n\nfrom different numbers and was able to mask his phone number to\n\nappear as though another contact was calling. She also reported\n\nhe emailed her from multiple accounts.\n\n On May 23, 2017, the Probation Office filed a petition\n\nto revoke Sayer's supervised release, alleging that Sayer had\n\nviolated the CIMP condition by opening and using a series of online\n\naccounts without prior permission from Probation. Sayer waived\n\nthe preliminary revocation hearing, and the district court\n\nscheduled the final revocation hearing for October 24, 2017. On\n\nthat day, Sayer waived the right to a hearing and admitted to\n\ncommitting the violations. Specifically, Sayer admitted to: (1)\n\ninstalling twenty-two \"spoofing\" applications on his phone, which\n\nenabled him to place outgoing phone calls under the guise of a\n\ndifferent phone number, to call M.G.; (2) downloading twenty\n\nunapproved messenger applications; (3) opening 4 different email\n\naccounts, 3 of which were never reported to, nor approved by, the\n\nProbation Office, and were used to send multiple messages to M.G.;\n\n\n -8-\n\fand (4) creating two dating profiles appearing to resemble M.G.,\n\nseeking to pose as a representation of her to find out if she was\n\ndating other men.\n\n Sayer also accepted the Probation Officer's Revocation\n\nReport without any objection to its content, except for a complaint\n\nthat it omitted some \"mutual\" communications between M.G. and him.\n\nWithout any further objection from Sayer, the district court\n\nadopted the Revocation Report in its entirety as findings in\n\nsupport of the revocation sentence. While the Guidelines\n\nSentencing Range was five to eleven months, the court ultimately\n\nvaried upwards to impose a sentence of a twenty-four-month prison\n\nterm and twelve months of supervised release.\n\n II. Discussion\n\n \"Appellate review of federal criminal sentences is\n\ncharacterized by a frank recognition of the substantial discretion\n\nvested in a sentencing court.\" United States v. Flores-Machicote,\n\n706 F.3d 16, 20 (1st Cir 2013). We review sentencing decisions\n\nunder the United States Sentencing Guidelines (\"U.S.S.G.\") for\n\n\"reasonableness, regardless of whether they fall inside or outside\n\nthe applicable [Guidelines Sentencing Range].\" United States v.\n\nTurbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our \"review\n\nprocess is bifurcated: we first determine whether the sentence\n\nimposed is procedurally reasonable and then determine whether it\n\n\n -9-\n\fis substantively reasonable.\" United States v. Clogston, 662 F.3d\n\n588, 590 (1st Cir. 2011).\n\nA. Procedural Reasonableness of Sayer's Sentence\n\n We must ensure that the district court did not commit\n\nany \"significant procedural error\" to arrive at a sentence. Gall\n\nv. United States, 552 U.S. 38, 51 (2007). Examples of this include\n\n\"failing to calculate (or improperly calculating) the [GSR],\n\ntreating the Guidelines as mandatory, failing to consider the [18\n\nU.S.C.] § 3553(a) factors, selecting a sentence based on clearly\n\nerroneous facts, or failing to adequately explain the chosen\n\nsentence-including an explanation for any deviation from the\n\nGuidelines range.\" Flores-Machicote, 706 F.3d at 20 (alterations\n\nin original) (quoting Gall, 552 U.S. at 51).\n\n Preserved claims of sentencing error are generally\n\nreviewed for abuse of discretion. United States v. Márquez-\n\nGarcía, 862 F.3d 143, 145 (1st Cir. 2017). However, when a\n\ndefendant fails to contemporaneously object to the procedural\n\nreasonableness of a court's sentencing determination, we review\n\nfor plain error. See United States v. Ruiz-Huertas, 792 F.3d 223,\n\n226 (1st Cir. 2015). Under the plain error standard, \"an appellant\n\nmust show: '(1) that an error occurred (2) which was clear or\n\nobvious and which not only (3) affected the [appellant's]\n\nsubstantial rights, but also (4) seriously impaired the fairness,\n\n\n -10-\n\fintegrity, or public reputation of judicial proceedings.'\"\n\nMárquez-García, 862 F.3d at 145 (alterations in original)(quoting\n\nUnited States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Sayer\n\ndid not raise his procedural reasonableness argument before the\n\nsentencing court, so we review for plain error.8 See United States\n\nv. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).\n\n Sayer claims that the district court procedurally erred\n\nby failing to adequately explain the rationale for its chosen\n\nsentence. The revocation hearing transcript, however, refutes\n\nSayer's argument. The district court's remarks at sentencing made\n\nclear that it considered the factors required by 18 U.S.C.\n\n§ 3583(e), weighed them, and used its discretion to arrive at a\n\nreasoned, defensible decision. The court primarily stressed three\n\nfactors in support of its variant sentence: (1) Sayer's criminal\n\n\n\n8 Sayer argues that he properly preserved all of his arguments on\nappeal. As the transcript of the revocation hearing reflects,\nSayer's attorney stated: \"I would like to object to the upward\nvariance. I think that is necessary to preserve all of Mr. Sayer's\nappeal rights.\" This is insufficient. \"A general objection to\nthe procedural reasonableness of a sentence is not sufficient to\npreserve a specific challenge to any of the sentencing court's\nparticularized findings. . . . [A]n objection must be sufficiently\nspecific to call the district court's attention to the asserted\nerror.\" United States v. Soto-Soto, 855 F.3d 445, 448 n.1 (1st\nCir. 2017); see also United States v. Sosa-González, 900 F.3d 1,\n4 (1st Cir. 2018) (finding \"we object as to the sentence because\nwe believe it is unreasonable\" to be insufficient to preserve a\nprocedural objection). In any event, even reviewed under the\nabuse of discretion standard, Sayer cannot meet his burden.\n\n\n -11-\n\fhistory and the similarity of Sayer's conduct on supervised release\n\nto the conduct for which he had been convicted; (2) Sayer's\n\nunwillingness to accept responsibility; and (3) the need to protect\n\nthe public from further crimes.\n\n First, the court expressed that Sayer's behavior while\n\non supervised release \"demonstrates that he has continued with the\n\nsame sort of resistance to authority and compulsive thinking that\n\nresulted in his underlying cyberstalking conviction.\" It\n\nexplained that although Sayer's conduct while on supervision did\n\nnot \"rise to the level\" of the conduct for which he was originally\n\nconvicted, \"it certainly hearken[ed] toward it.\" Moreover, the\n\ncourt noted that Sayer had a Criminal History Category of III and\n\nemphasized that \"more important than that number is the nature of\n\nhis history,\" which is a:\n\n chronic pattern of stalking . . . and behavior involving\n violations of protective orders and bail orders which\n . . . [all] paint[] a picture . . . of a defendant who\n is absolutely resistant to court order, court\n supervision and respecting the rule of law as it pertains\n to . . . employing cell phones and the Internet to\n interfere with others.\n\n As to Sayer's unwillingness to accept responsibility,\n\nthe court emphasized that Sayer had described the Probation\n\nOfficer's order that he receive a mental health assessment as\n\n\"ridiculous\" and that \"today even I hear him blaming his\n\nrelationship with M.G. for his problems . . . as opposed to\n\n\n -12-\n\faccepting full responsibility.\" Moreover, the court stressed the\n\neffect of Sayer's conduct on others and explained: \"[t]o some\n\ndegree the analogy to a drug addict is not appropriate. This is\n\nnot a situation where he is using illegal substances to his own\n\ndetriment only. This is a situation in which his behavior harms\n\nothers.\" Thus, the court ultimately concluded that: \"an upward\n\nvariant sentence is essential, because I have before me a defendant\n\nwho cannot control his behavior after all this history and for\n\nthat reason poses what I regard to be a substantial risk of harm\n\nto the public.\"\n\n This explanation was adequate, more than enough to\n\ndefeat Sayer's procedural challenge under both the plain error and\n\nabuse of discretion standards. Sentencing courts need not recount\n\nevery detail of their decisional processes; identification of the\n\n\"main factors behind [the] decision\" is enough. United States v.\n\nVargas-García, 794 F.3d 162, 166 (1st Cir. 2015). And although\n\nSayer contends that the court did not sufficiently explain why it\n\nrejected his arguments for a lower prison term, courts are not\n\nrequired to specifically explain why they rejected a particular\n\ndefense argument in favor of a lower sentence. See id. at 167\n\n(holding that while a \"sentencing court may have a duty to explain\n\nwhy it chose a particular sentence, it has 'no corollary duty to\n\n\n\n\n -13-\n\fexplain why it eschewed other suggested sentences'\" (quoting\n\nUnited States v. Vega-Salgado, 769 F.3d 100, 104 (1st Cir. 2014))).\n\n In any case, the court did explain that although it had\n\nconsidered Sayer's progress while on supervised release, it\n\n\"pale[d] next to the continued absence of insight on his part as\n\nto the type of thinking and the type of behavior which is unlawful\n\nand is harmful, and it's harmful to other people, not just to him.\"\n\nHence, the district court's explanation of its variant sentence\n\nwas sufficient, and we discern no error, much less plain error.\n\nB. Substantive Reasonableness of Sayer's Sentence9\n\n \"[I]f the sentence is procedurally sound, we then ask\n\nwhether the sentence is substantively reasonable.\" United States\n\nv. Rossignol, 780 F.3d 475, 477 (1st Cir. 2015). A sentence is\n\nsubstantively reasonable so long as the sentencing court has\n\nprovided a \"plausible sentencing rationale\" and reached a\n\n\"defensible result.\" United States v. Martin, 520 F.3d 87, 96\n\n(1st Cir. 2008). In assessing the substantive reasonableness of\n\na sentence, this court should \"take into account the totality of\n\nthe circumstances, including the extent of any variance from the\n\nGuidelines [Sentencing] [R]ange.\" United States v. Contreras-\n\nDelgado, 913 F.3d 232, 243 (1st Cir. 2019) (quoting Gall, 552 U.S.\n\n\n9 Sayer claims this issue should be reviewed for abuse of\ndiscretion, and the government does not contest it.\n\n\n -14-\n\fat 51). \"[T]he greater the variance, the more compelling the\n\nsentencing court's justification must be.\" United States v.\n\nVázquez-Vázquez, 852 F.3d 62, 67 (1st Cir. 2017) (quoting United\n\nStates v. Guzmán-Fernández, 824 F.3d 173, 178 (1st Cir. 2016)).\n\n Sayer's violation while on supervised release was a\n\nGrade C violation.10 Because Sayer had a Criminal History Category\n\nof III, the Guidelines Sentencing Range of imprisonment was five\n\nto eleven months. By imposing an imprisonment term of twenty-four\n\nmonths on revocation, the district court varied upwards by thirteen\n\nmonths. Sayer argues that his sentence is longer than necessary,\n\nand therefore substantially unreasonable because the court: (1)\n\n\"failed to calibrate the decisional scales\" by not accounting for\n\n\"obvious mitigating factors\"; and (2) left no room for harsher\n\nsentences for those with higher Criminal History Categories and\n\nmore serious violations.\n\n Sayer's arguments are without merit. To begin with, the\n\ndistrict court clearly stated that it considered the sentencing\n\nfactors set forth in 18 U.S.C. § 3553(a), including \"Sayer's\n\n\n\n10 The Sentencing Commission's policy statement divides conduct\nthat violates conditions of supervision into three categories:\nGrade A, B, and C violations. U.S.S.G. § 7B1.1(a). There are two\ntypes of Grade C violations: \"(A) a federal, state, or local\noffense punishable by a term of imprisonment of one year or less;\nor (B) a violation of any other condition of supervision.\"\nU.S.S.G. § 7B1.1(a)(3)(emphasis added).\n\n\n -15-\n\fpersonal history and characteristics\" and \"the need for the\n\nsentence imposed to . . . avoid unwanted sentencing disparities.\"\n\nSee United States v. Santiago-Rivera, 744 F.3d 229, 233 (1st Cir.\n\n2014) (noting that a judge's statement that he has considered all\n\nof the § 3553(a) factors is entitled to significant weight).\n\nMoreover, the court adopted the Revocation Report, which mentioned\n\nthe mitigating factors that Sayer refers to, as findings of fact\n\nin support of the sentence that it would impose. Finally, the\n\ndistrict court even expressly mentioned the \"progress\" that Sayer\n\nachieved while on supervised release, but ultimately concluded\n\nthat it \"pale[d]\" compared to his harmful thinking and behavior.\n\nHence, it is evident that the district court considered all the\n\nfactors it was required to.\n\n In essence, then, Sayer's challenge is directed at the\n\nsentencing judge's weighing of the factors that affect sentencing.\n\nHe understands that the district judge should have given certain\n\nmitigating factors greater significance. However, although the\n\ndistrict court must consider a \"myriad of relevant factors,\" the\n\nweighing of those factors is \"within the court's informed\n\ndiscretion.\" Clogston, 662 F.3d at 593. Moreover, the reasons\n\ncited by the district court and described above, including Sayer's\n\nextensive criminal history and the seriousness of his offenses,\n\nhis proclivity upon release towards the type of conduct for which\n\n\n -16-\n\fhe had been convicted, his unwillingness to accept responsibility,\n\nand the need to protect the public from further crimes, constitute\n\na \"plausible rationale\" for a \"defensible\" sentence. See Martin,\n\n520 F.3d at 91, 98. And while Sayer argues that the sentence\n\nimposed did not leave room for harsher sentences for those with\n\nhigher Criminal History Categories and more serious violations, it\n\nis evident from the hearing transcript that the sentencing judge\n\nconsidered Sayer's criminal history and the nature of his\n\nviolations to be serious enough to warrant the sentence imposed.\n\nSee Clogston, 662 F.3d at 592 (\"There is no one reasonable sentence\n\nin any given case but, rather, a universe of reasonable sentencing\n\noutcomes.\"). Thus, considering the totality of the circumstances,\n\nwe find the district court's sentence to be substantively\n\nreasonable and not an abuse of discretion. 11\n\n\nC. Sayer's Additional Term of Supervised Release upon Revocation\n\n Finally, Sayer argues for the first time on appeal that\n\nthe district court erred by imposing a term of supervised release\n\nin addition to the statutory maximum term of imprisonment upon\n\nrevocation. He contends that because the court sentenced him to\n\n\n11 We have reviewed the cases Sayer cited in his briefs and in a\npost-argument letter submitted pursuant to Federal Rule of\nAppellate Procedure 28(j), but they fail to persuade us to the\ncontrary. They are either distinguishable, lacking a record from\nwhich the appellate court could have deciphered a sentencing\nrationale, or inapposite.\n\n\n -17-\n\fthe statutory maximum imprisonment term on revocation, it could\n\nnot also impose an additional term of supervised release. He\n\nbases this argument on the Probation Officer's erroneous\n\nparaphrasing of U.S.S.G. § 7B1.3(g)(2) in the Revocation Report12\n\nand several cited cases that imposed a statutory maximum sentence\n\non revocation but no additional term of supervised release.\n\n The plain text of 18 U.S.C. § 3583(h) and U.S.S.G.\n\n§ 7B1.3(g)(2) negates Sayer's position. Section 3583(h)\n\nestablishes that:\n\n When a term of supervised release is revoked and the\n defendant is required to serve a term of imprisonment,\n the court may include a requirement that the defendant\n be placed on a term of supervised release after\n imprisonment. The length of such a term of supervised\n release shall not exceed the term of supervised release\n authorized by statute for the offense that resulted in\n the original term of supervised release, less any term\n of imprisonment that was imposed upon revocation of\n supervised release.\n\n(Emphasis added). U.S.S.G. § 7B1.3(g)(2) basically mirrors the\n\nstatute. Here, Sayer does not dispute that the maximum supervised\n\nrelease term authorized for his original cyberstalking offense is\n\n\n12 On page 5 of the Revocation Report, the Probation Officer\nerroneously appears to suggest that supervised release can be\nimposed upon revocation only if the term of imprisonment imposed\nis \"less\" than the maximum term of imprisonment imposable upon\nrevocation. Nevertheless, the Probation Officer correctly stated\nthe calculation on the Revocation Report's page 4 when he explained\nthat \"the term of supervised release that can be imposed upon\nrevocation is 36 months, less any imprisonment imposed for this\nrevocation.\"\n\n\n -18-\n\fthirty-six months. According to Section 3583(h), the district\n\ncourt could impose a second supervised release term as long as it\n\ndid not exceed the term of supervised release authorized for the\n\nunderlying conviction (i.e., thirty-six months), less the term of\n\nimprisonment that was imposed upon revocation (i.e., twenty-four\n\nmonths). As thirty-six minus twenty-four equals twelve, simple\n\narithmetic reveals that the new twelve-month supervised release\n\nterm does not exceed the maximum allowed upon revocation.\n\n Finally, the fact that some district courts exercise\n\ntheir discretion to impose only the maximum statutory imprisonment\n\nterm upon revocation, without a new supervised release term,13 does\n\nnot affect the district court's authority here to impose the\n\ntwelve-month supervised release term upon revocation. Thus, Sayer\n\nhas not been able to show any error in the district court's\n\nimposition of his supervised release term on revocation.\n\n III. Conclusion\n\n For the reasons expounded above, Sayer's revocation\n\nsentence is affirmed.\n\n Affirmed.\n\n\n\n\n13 See United States v. Márquez-García, 862 F.3d 143, 145 (1st\nCir. 2017), United States v. Alejandro-Rosado, 878 F.3d 435, 438\n(1st Cir. 2017), United States v. Soto-Soto, 855 F.3d 445, 448\n(1st Cir. 2017).\n\n\n -19-\n[END_CASE]",
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4,593,289 | Rivera-Schatz v. FOMB | 2019-02-22 | 18-1773P | U.S. Court of Appeals for the First Circuit | {"judges": "Before Lynch, Circuit Judge, Souter,** Associate Justice, and Stahl, Circuit Judge.", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1773\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\n\n Debtors.\n\n\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\n the House of Representatives of Puerto Rico,\n\n Plaintiff, Appellant,\n\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\n the Senate of Puerto Rico,\n\n Plaintiff,\n\n v.\n\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\n SKEEL, JR.; NATALIE A. JARESKO,\n\n Defendants, Appellees,\n\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\n\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\n ELECTRIC POWER AUTHORITY (PREPA),\n\n Debtors, Appellees.\n\n\nNo. 18-1777\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\n\n Debtors.\n\n\n\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\n the Senate of Puerto Rico,\n\n Plaintiff, Appellant,\n\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\n the House of Representatives of Puerto Rico,\n\n Plaintiff,\n\n v.\n\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\n SKEEL, JR.; NATALIE A. JARESKO,\n\n Defendants, Appellees,\n\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\n\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\n ELECTRIC POWER AUTHORITY (PREPA),\n\n Debtors, Appellees.\n\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Laura Taylor Swain,* U.S. District Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter,** Associate Justice,\n and Stahl, Circuit Judge.\n\n\n\n Israel Roldán-González for Carlos Méndez-Núñez.\n Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,\nSheila Torres-Delgado, David Rodríguez-Burns, and Aldarondo &\nLópez Bras ALB, were on brief for Thomas Rivera-Schatz.\n Timothy W. Mungovan, with whom John E. Roberts, Guy Brenner,\nMartin J. Bienenstock, Steven L. Ratner, Mark D. Harris, Kevin J.\nPerra, and Proskauer Rose LLP, were on brief, for the Financial\nOversight and Management Board for Puerto Rico; Jose B. Carrion,\nIII; Andrew G. Biggs; Carlos M. Garcia; Arthur J. Gonzalez; Jose\nR. Gonzalez; Ana J. Matosantos; David A. Skeel, Jr.; Natalie A.\nJaresko.\n\n\n February 22, 2019\n\n\n\n\n * Of the Southern District of New York, sitting by\ndesignation.\n ** Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f LYNCH, Circuit Judge. These appeals raise several\n\nquestions about the authority, under the Puerto Rico Oversight,\n\nManagement and Economic Stability Act (PROMESA), of the Financial\n\nOversight and Management Board for Puerto Rico to develop and\n\ncertify Fiscal Plans and Territory Budgets for the Commonwealth.\n\n48 U.S.C. §§ 2141-2142. In particular, this case is about the\n\n2019 Fiscal Plan and Territory Budget.\n\n The plaintiffs, the Speaker of Puerto Rico's House of\n\nRepresentatives, Carlos Méndez-Núñez, and the President of its\n\nSenate, Thomas Rivera-Schatz, in their official capacities and on\n\nbehalf of the Legislative Assembly, sued the Board, its members,\n\nand its executive director after the Board developed and certified\n\na Fiscal Plan and a Territory Budget for Fiscal Year 2019. The\n\ncomplaint alleged that the Board had made several erroneous\n\ncertification decisions and had exceeded its power under PROMESA\n\nduring the Fiscal Plan and Territory Budget development and\n\ncertification processes. It sought declaratory and injunctive\n\nrelief. The district court dismissed the complaint, in part for\n\nlack of subject matter jurisdiction and in part for failure to\n\nstate a claim. See Rivera-Schatz v. Fin. Oversight & Mgmt. Bd.\n\nfor P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 327 F. Supp.\n\n3d 364 (D.P.R. 2018). We affirm the dismissal on the same grounds.\n\n\n\n\n - 4 -\n\f I.\n\n We describe the statutory context and the relevant\n\nevents surrounding the 2019 Fiscal Plan and Territory Budget.1\n\nA. PROMESA's Basic Structure\n\n Finding Puerto Rico to be amid a \"fiscal emergency,\"\n\nCongress enacted PROMESA in 2016. See Pub. L. No. 114-187\n\n§ 405(m)(1), 130 Stat. 549, 591 (2016); see also Aurelius Inv.,\n\nLLC v. Commonwealth of P.R., Nos. 18-1671, 18-1746, 18-1787, 2019\n\nWL 642328, at *1-2 (1st Cir. Feb. 15, 2019) (recounting the origins\n\nof the emergency and the responses before PROMESA). PROMESA\n\ncreated mechanisms for restructuring the debts of U.S. territories\n\nand for overseeing reforms of their fiscal and economic policies.\n\nSee 48 U.S.C. § 2121(a) (stating this purpose). The Board,\n\nestablished \"as an entity within the territorial government\" of\n\nPuerto Rico, id. § 2121(c)(1), was empowered by PROMESA to, among\n\nother things, develop, approve, and certify Fiscal Plans and\n\nTerritory Budgets, id. §§ 2141-2142, negotiate with the\n\nCommonwealth's creditors, id. § 2146, and, under Title III, to\n\ncommence a bankruptcy-type proceeding on behalf of the\n\nCommonwealth, id. § 2175; see generally Aurelius Inv., 2019 WL\n\n\n\n 1 Because the complaint was disposed of at the motion to\ndismiss stage, we take the facts from the complaint, its\nattachments, and the motion to dismiss and its attachments. See,\ne.g., In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 14-15 (1st\nCir. 2003). There are no material disputes about this record.\n\n\n - 5 -\n\f642328, at *2-3, *11-12 (outlining key powers granted to the\n\nBoard).\n\n Congress enacted PROMESA under its Article IV \"Power to\n\ndispose of and make all needful Rules and Regulations respecting\n\nthe Territory . . . belonging to the United States.\" U.S. Const.\n\nart. IV § 3, cl. 2; see 48 U.S.C. § 2121(b)(2). Puerto Rico became\n\na U.S. territory in 1898, see Treaty of Paris, art. 9, Dec. 10,\n\n1898, 30 Stat. 1759, and is governed by a popularly elected\n\nGovernor and Legislative Assembly under a constitution adopted by\n\nPuerto Rico and approved by Congress under the Territorial Clause,\n\nsee Act of July 3, 1952, Pub. L. No. 447, ch. 567, 66 Stat. 327;\n\nsee also Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1875 (2016)\n\n(recognizing the congressional role in authorizing Puerto Rico's\n\n\"constitution-making process\" and in approving the resulting\n\nConstitution).\n\n PROMESA explicitly reserves \"the power of [Puerto Rico]\n\nto control, by legislation or otherwise, the territory,\" except as\n\nthat power is limited by Titles I and II of PROMESA. 48 U.S.C.\n\n§ 2163. In addition to that exception, PROMESA's provisions\n\npreempt any inconsistent \"general or specific provisions of\n\nterritory law,\" including provisions of Puerto Rico's\n\nConstitution. See id. § 2103; see also United States v. Maldonado-\n\nBurgos, 844 F.3d 339, 346 (1st Cir. 2016) (citing United States v.\n\nQuinones, 758 F.2d 40 (1st Cir. 1985) and then citing United States\n\n\n - 6 -\n\fv. Acosta-Martinez, 252 F.3d 13, 18 (1st Cir. 2001)) (\"[A]\n\nprovision of the Puerto Rico Constitution cannot prevail where it\n\nconflicts with applicable federal law.\").\n\n We have previously had occasion to interpret aspects of\n\nPROMESA's Title III. See Fin. Oversight & Mgmt. Bd. for P.R. v.\n\nAd Hoc Grp. of PREPA Bondholders (In re Fin. Oversight & Mgmt. Bd.\n\nfor P.R.), 899 F.3d 13, 18 (1st Cir. 2018); Peaje Invs. LLC v.\n\nGarcía-Padilla, 845 F.3d 505, 511 (1st Cir. 2017); Lex Claims, LLC\n\nv. Fin. Oversight & Mgmt. Bd., 853 F.3d 548, 552 (1st Cir. 2017);\n\nsee also Altair Glob. Credit Opportunities Fund, LLC v. The Emps.\n\nRet. Sys. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 914 F.3d\n\n694, 707 (1st Cir. 2019) (noting PROMESA's enactment). Recently,\n\nin Aurelius Investment, LLC v. Commonwealth of Puerto Rico, 2019\n\nWL 642328, at *1, this court considered the constitutionality of\n\nPROMESA's procedure for appointing Board members, see 48 U.S.C.\n\n§ 2121(e). Aurelius' holding that this procedure violates the\n\nAppointments Clause, U.S. Const. art. II, § 2, cl. 2, has no effect\n\non the \"otherwise valid actions of the Board prior to the issuance\n\nof [Aurelius'] mandate,\" and so does not impact the outcome of\n\nthese appeals, Aurelius Inv., 2019 WL 642328, at *17.\n\n At issue here are events that occurred in 2018 and\n\nquestions of first impression about Title II's provisions related\n\nto Fiscal Plans and Territory Budgets. 48 U.S.C. §§ 2141-2142.\n\nWe explain those provisions in greater detail below.\n\n\n - 7 -\n\fB. 2019 Fiscal Plan\n\n Congress intended for Fiscal Plans to provide roadmaps\n\nfor Puerto Rico \"to achieve fiscal responsibility and access to\n\nthe capital markets.\" Id. § 2141(b)(1). PROMESA § 201 grants the\n\nBoard exclusive authority to review, approve, and certify these\n\nPlans.2 See id. § 2141(c)-(e); cf. Aurelius Inv., 2019 WL 642328,\n\nat *12 (describing these and related powers and characterizing\n\nthem as \"significant\"). That section also outlines a yearly\n\nprocess, involving only the Governor and the Board, for development\n\nof Fiscal Plans. See generally 48 U.S.C. § 2141. The Legislative\n\nAssembly has a formal role in economic planning and budgeting under\n\nPROMESA, but that role is limited to the Territory Budget\n\ndevelopment process. See id. § 2142(d).\n\n\n\n 2 PROMESA does provide one path for the Governor and the\nBoard to jointly develop and certify Fiscal Plans \"that meet[] the\nrequirements under [§ 201].\" 48 U.S.C. § 2141(f). The full\nprovision reads:\n (f) Joint development of Fiscal Plan\n Notwithstanding any other provision of this\n section, if the Governor and the Oversight\n Board jointly develop a Fiscal Plan for the\n fiscal year that meets the requirements under\n this section, and that the Governor and the\n Oversight Board certify that the fiscal plan\n reflects a consensus between the Governor and\n the Oversight Board, then such Fiscal Plan\n shall serve as the Fiscal Plan for the\n territory or territorial instrumentality for\n that fiscal year.\n\nId.\n\n\n - 8 -\n\f 1. Initial Development\n\n PROMESA's prescribed process for \"[d]evelopment, review,\n\napproval, and certification of Fiscal Plans\" occurs on a schedule\n\nset by the Board, id. § 2141(c); see id. § 2141(a), and begins\n\nwith the submission of a proposed Fiscal Plan by the Governor, see\n\nid. § 2141(c) (\"The Governor shall submit to the Oversight Board\n\nany proposed Fiscal Plan . . . .\"). For 2019, the Governor sent\n\nseveral versions of his proposed Fiscal Plan to the Board between\n\nJanuary and April 2018.\n\n The Board reviewed each of these proposals, as required\n\nby § 201(c)(3), which states that \"[t]he Oversight Board shall\n\nreview any proposed Fiscal Plan to determine whether it satisfies\n\nthe requirements set forth in subsection (b).\" Id. § 2141(c)(3).\n\nContained in subsection (b) are over a dozen specific requirements.\n\nThose include \"provid[ing] for the elimination of structural\n\ndeficits\" and \"for the investments necessary to promote economic\n\ngrowth.\" Id. § 2141(b)(1)(A)–(N).3\n\n\n 3 The requirements \"set forth in\" § 201(b) are:\n (A) provide for estimates of revenues and\n expenditures in conformance with agreed\n accounting standards and be based on --\n (i) applicable laws; or\n (ii) specific bills that require\n enactment in order to reasonably achieve\n the projections of the Fiscal Plan;\n (B) ensure the funding of essential public\n services;\n (C) provide adequate funding for public\n pension systems;\n\n - 9 -\n\f Here, the Board rejected each of the Governor's proposed\n\n2019 Fiscal Plans as not satisfying § 201(b)'s requirements.4 The\n\n\n\n\n (D) provide for the elimination of structural\n deficits;\n (E) for fiscal years covered by a Fiscal Plan\n in which a stay under subchapters III or IV is\n not effective, provide for a debt burden that\n is sustainable;\n (F) improve fiscal governance,\n accountability, and internal controls;\n (G) enable the achievement of fiscal targets;\n (H) create independent forecasts of revenue\n for the period covered by the Fiscal Plan;\n (I) include a debt sustainability analysis;\n (J) provide for capital expenditures and\n investments necessary to promote economic\n growth;\n (K) adopt appropriate recommendations\n submitted by the Oversight Board under section\n 2145(a) of this title;\n (L) include such additional information as the\n Oversight Board deems necessary;\n (M) ensure that assets, funds, or resources of\n a territorial instrumentality are not loaned\n to, transferred to, or otherwise used for the\n benefit of a covered territory or another\n covered territorial instrumentality of a\n covered territory, unless permitted by the\n constitution of the territory, an approved\n plan of adjustment under subchapter III, or a\n Qualifying Modification approved under\n subchapter VI; and\n (N) respect the relative lawful priorities or\n lawful liens, as may be applicable, in the\n constitution, other laws, or agreements of a\n covered territory or covered territorial\n instrumentality in effect prior to June 30,\n 2016.\n\n48 U.S.C. § 2141(b)(1).\n 4 If the Board had determined that one of the Fiscal Plans\nproposed by the Governor did \"satisf[y] such requirements, the\n\n\n - 10 -\n\fBoard returned two of the Governor's proposals to him, as required\n\nby § 201(c)(3)(B), with \"a notice of violation that includes\n\nrecommendations for revisions to the applicable Fiscal Plan;\n\nand . . . an opportunity to correct the violation.\" Id.\n\n§ 2141(c)(3)(B). At the time the Board rejected the Governor's\n\nfinal, April 2018, proposal, the deadline for certifying a 2019\n\nFiscal Plan had passed. Under such circumstances (that is, when\n\n\"the Governor fails to submit to the Oversight Board a Fiscal Plan\n\nthat the Oversight Board determines in its sole discretion\n\nsatisfies the requirements . . . by the time specified\"), PROMESA\n\n§ 201(d)(2) provides that \"the Oversight Board shall develop and\n\nsubmit to the Governor and the Legislature a Fiscal Plan that\n\nsatisfies the requirements.\" Id. § 2141(d)(2).\n\n 2. April 19, 2018 Fiscal Plan\n\n On April 19, 2018, the Board accordingly certified a\n\n2019 Fiscal Plan that it had developed. That Fiscal Plan was\n\nautomatically \"deemed approved by the Governor\" under § 201(e)(2).\n\nSee id. § 2141(e)(2) (\"If the Oversight Board develops a Fiscal\n\nPlan under subsection (d)(2), such Fiscal Plan shall be deemed\n\napproved by the Governor . . . .\").\n\n The April Fiscal Plan incorporated many aspects of the\n\nGovernor's proposed Fiscal Plan. It also included a labor reform\n\n\nOversight Board\" would have been required to \"approve\" and certify\nthat proposed Fiscal Plan. Id. § 2141(c)(3)(A), (e)(1).\n\n\n - 11 -\n\fpackage not proposed by the Governor. This was one among a set of\n\n\"comprehensive structural reforms to the economy of Puerto Rico\"\n\nset forth in the Plan. These comprehensive reforms, to Puerto\n\nRico's labor laws, business regulations, and infrastructure (among\n\nother areas), were designed by the Board to \"revers[e] the negative\n\ntrend [of economic] growth over the last 10 years and enabl[e] the\n\nIsland to become a vibrant and productive economy going forward.\"\n\n \"[I]ncreasing labor force participation may be the\n\nsingle most important reform for long-term economic well-being in\n\nPuerto Rico,\" the April Plan stated. It identified three \"labor\n\nmarket reforms\" intended \"[t]o reduce the cost to hire and\n\nencourage job creation, including movement of informal jobs to the\n\nformal economy.\" The three \"initiatives to change labor\n\nconditions\" were: a shift to at-will employment; a \"[r]eduction of\n\nmandated paid leave, including sick leave and vacation pay;\" and\n\nan end to \"mandated Christmas bonuses.\" The called-for adoption\n\nof at-will employment required the repeal of Puerto Rico's Law No.\n\n80 of May 30, 1976, P.R. Laws Ann. tit 29 §§ 185a-185m, which bars\n\ntermination of many private-sector employees without cause.\n\n As to this first reform, the Plan noted that \"49 out of\n\n50 U.S. states are employment at-will jurisdictions, giving\n\nemployers the flexibility to dismiss an employee without having to\n\nfirst prove just cause.\" It acknowledged that \"some employees\n\nbenefit from Puerto Rico's lack of at-will employment\" but credited\n\n\n - 12 -\n\fevidence that for-cause employment \"makes it more costly and risky\n\nnot only to dismiss, but also to hire, an employee.\" \"For\n\nexample,\" the Plan summarized, \"studies have found that laws\n\npreventing unfair dismissal caused reductions in employment,\n\nparticularly in labor-intensive industries.\" It concluded that\n\nswitching to at-will employment \"will lower the cost and risk of\n\nhiring in Puerto Rico.\"\n\n The Plan quantified the impact of the labor reform\n\npackage on the Commonwealth's annual budget surplus over thirty\n\nyears. It projected that, with the adoption of at-will employment,\n\nPuerto Rico would have a $39 billion cumulative surplus over that\n\nperiod, compared with a $2 billion cumulative surplus without the\n\nenactment of at-will employment.\n\n The April Fiscal Plan also cut the operating budget of\n\nthe Puerto Rican Legislative Assembly. These \"reductions for the\n\nLegislative Assembly\" were \"informed by benchmarking against other\n\nfull-time legislatures\" in the United States, the Plan explained.\n\nThe Puerto Rican Legislative Assembly's expenditure in Fiscal Year\n\n2018 was about 300% greater than the (population-weighted)\n\nnational average of full-time U.S. legislatures, according to an\n\nanalysis by the Board of publicly available data.5 The Plan stated\n\n\n\n\n 5 This analysis appeared in the Board's motion to dismiss.\n\n\n - 13 -\n\fthat these reductions would achieve \"reinvestment savings\" of\n\nbetween $23.6 and $25 million per year for the next five years.\n\n 3. May 30, 2018 Fiscal Plan\n\n The Governor and the Board continued negotiating about\n\nthe labor reform package and other matters after the April Fiscal\n\nPlan had been certified. Eventually, the Board agreed to certify\n\na revised Fiscal Plan that it had developed. It did so on May 30,\n\n2018. Two aspects of the Board's May Fiscal Plan are relevant to\n\nthese appeals.\n\n First, the May Fiscal Plan provided for a shift to\n\nat-will employment. Specifically:\n\n The Legislature shall introduce and the\n Governor shall sign a bill that repeals Act\n No. 80 . . . on or before June 27, 2018, which\n shall become effective on or before January 1,\n 2019. . . . The Bill shall state that, for\n the avoidance of doubt, an employee hired for\n an indefinite period of time does not have a\n cause of action against their employer merely\n for the employer's termination of the\n employment relation.\n\nThat is, the government of Puerto Rico would repeal Law 80 and\n\nclarify that employment is at will.\n\n Second, the cut to the Legislative Assembly's budget was\n\nremoved from the May version of the Fiscal Plan. In addition,\n\ncuts to the budget of the judiciary included in the April Fiscal\n\nPlan were \"reduced by half each year\" in the May version, a change\n\nthat increased the court system's budget by up to $23 million per\n\n\n\n\n - 14 -\n\fyear over what had been budgeted in the April version. According\n\nto a statement of understanding between the Governor and the Board,\n\nthese operating budgets were to \"be revisited annually,\" and these\n\nfunding levels were made contingent on Puerto Rico's \"compliance\n\nwith the then-applicable fiscal plan.\" That is, the May Fiscal\n\nPlan stated that the allocations for the Legislative Assembly and\n\nthe judiciary\n\n are pursuant to Puerto Rico becoming an\n employment at-will jurisdiction by repealing\n Law 80 of May 30, 1976 on or before June 27,\n 2018 . . . . If the repeal does not occur,\n none of these changes and alterations [to the\n Legislative Assembly's and the judiciary's\n budgets] shall be implemented.\n\n The Legislative Assembly did not repeal Law 80. Instead,\n\nthe day the Board certified the May Fiscal Plan, May 30, Puerto\n\nRico's Senate passed Senate Bill 1011, which made at-will\n\nemployment the rule for employees hired after the date of the\n\nbill's enactment, while retaining Law 80's for-cause rule for those\n\nalready employed.6\n\n The House of Representatives immediately began\n\nconsidering Senate Bill 1011. Recognizing that the bill did not\n\n\n\n\n 6 The Senate also studied a labor reform bill that the\nBoard had drafted based on the April Fiscal Plan. Based on\ntestimony from experts and a review of studies, a Senate committee\npenned a report in July 2018 rejecting the proposed bill and\nstating that the bill's reforms, including at-will employment,\n\"have not had a positive or significant impact in [other] economies\nwhere similar . . . reforms have been implemented.\"\n\n\n - 15 -\n\ffully repeal Law 80, the President of the House Government Affairs\n\nCommittee sent a letter to the Board asking about the \"effect on\n\nthe Fiscal Plan and the budget to be certified by the Financial\n\nOversight Board\" were the House to pass Senate Bill 1011. The\n\nBoard responded that same day, June 4, that, if the Legislative\n\nAssembly \"fails to comply exactly with the understanding reached\n\nwith the Oversight Board concerning the repeal of Law 80, the\n\nOversight Board will amend the Fiscal Plan and Budget to,\" among\n\nother things, \"[m]aintain the cuts to the budgets of the\n\nLegislature and Judiciary as outlined in the April 19 Fiscal Plan.\"\n\nTen days later, on June 14, the House passed Senate Bill 1011.\n\nThe parties agree that Senate Bill 1011 never became law; the\n\nrecord does not explain why.\n\n 4. June 29, 2018 Fiscal Plan\n\n On June 29, 2018, the Board informed the Governor and\n\nthe Legislative Assembly by letter that it was certifying a new\n\nFiscal Plan. As had been promised in the May Fiscal Plan and in\n\nthe Board's June 4 letter, the Board's June Fiscal Plan funded the\n\njudiciary and the Legislative Assembly at the levels stated in the\n\nApril Plan. The letter explained, \"Unfortunately, we now know\n\nthat the Government of Puerto Rico will not implement the [May]\n\nFiscal Plan in full because the Legislature . . . failed to pass\n\nthe most important component of the Labor Reform Package -- the\n\n\n\n\n - 16 -\n\frepeal of Law 80 and turning Puerto Rico into an at-will employment\n\njurisdiction.\"\n\n The labor reform package was absent from the Board's\n\nJune Fiscal Plan, certified June 29, 2018. On that subject, the\n\nJune Plan stated the following:\n\n [W]hile successful human capital and welfare\n reforms would have been projected to generate\n approximately $39 billion in additional\n revenues by FY2048 and over ~$320 million from\n FY2018-FY2023, the Legislature's demonstrated\n noncompliance with the comprehensive labor\n reform requirements of previous fiscal plans\n has forced the removal of these projected\n revenues from the New Fiscal Plan.\n\nC. 2019 Territory Budget\n\n PROMESA § 202 grants the Board exclusive authority to\n\nreview, approve, and certify Territory Budgets. See 48 U.S.C.\n\n§ 2142; see also Aurelius Inv., 2019 WL 642328, at *12 (recognizing\n\nthe Board's \"significant\" power to approve and reject Commonwealth\n\nbudgets). The Legislative Assembly's only responsibility under\n\n§ 202 is to \"submit to the Oversight Board the Territory Budget\n\nadopted by the Legislature.\" 48 U.S.C. § 2142(d)(1).\n\n For 2019, the Legislative Assembly did this on June 30,\n\n2018, the day before the start of the Fiscal Year. Earlier that\n\nday, the Legislature had approved an $8,708,623,000 Commonwealth\n\nbudget (which the Governor later signed).\n\n Also on June 30, the Board determined that the\n\nLegislative Assembly's Budget was non-compliant with the\n\n\n\n - 17 -\n\fBoard-certified June Fiscal Plan.7 The Legislative Assembly's\n\n$84,275,000 combined allocation for Puerto Rico's House of\n\nRepresentatives ($45,470,000) and Senate ($38,805,000) matched the\n\nbudget for the Legislative Assembly under the Board's May Fiscal\n\nPlan but exceeded the reduced allocation in the June Plan.\n\n The Board then immediately certified a Territory Budget\n\nit had developed totaling $8,757,524,000. Of this, and consistent\n\nwith the June Fiscal Plan, $65,292,000 was allocated to the\n\nLegislative Assembly ($35,228,000 to the House and $30,064,000 to\n\nthe Senate). In developing and certifying this Budget, the Board\n\nrelied on its authority under § 202(e)(3). That provision\n\nprovides:\n\n If the Governor and the Legislature fail to\n develop and approve a Territory Budget that is\n a compliant budget by the day before the first\n day of the fiscal year for which the Territory\n Budget is being developed, the Oversight Board\n shall submit a Budget to the Governor and the\n Legislature . . . and such Budget shall be --\n (A) deemed to be approved by the Governor\n and the Legislature; . . .\n (C) in full force and effect beginning on\n the first day of the applicable fiscal\n year.\n\n\n\n\n 7 If the Board had deemed this \"adopted Territory Budget\"\nto be compliant with the Fiscal Plan, then the Oversight Board\nwould have been required to \"issue a compliance certification for\nsuch compliant budget.\" 48 U.S.C. § 2142(d)(1)(A).\n\n\n - 18 -\n\fId. § 2142(e)(3).8 By operation of law, then, the Board's 2019\n\nTerritory Budget went into effect.\n\nD. Procedural History\n\n On July 9, plaintiffs filed their complaint against the\n\nBoard seeking the following relief:9 (1) a declaration \"that the\n\nrejected policy recommendations in the Fiscal Plan are non-binding\n\nrecommendations, and that the Legislative Assembly cannot be\n\ncompelled to implement any of those policies, and the [Board] may\n\nnot take any actions to force compliance with such\n\nrecommendations;\" (2) a declaration that the Territory Budget\n\ncertified by the Board \"is null and void;\" and (3) an injunction\n\n\"prohibiting the defendants from implementing and enforcing\" the\n\nBoard-developed and certified Budget and \"reinstat[ing]\" the\n\nBudget adopted by the Legislative Assembly. We describe the pled\n\ntheories for relief in the analysis.\n\n Defendants moved to dismiss the complaint for lack of\n\nsubject matter jurisdiction and for failure to state a claim to\n\nrelief, and the district court granted the motion. Rivera-Schatz,\n\n\n 8 Had these events occurred before \"the day before the\nfirst day of the fiscal year\" and had the Board determined that\nthe submitted Budget was not compliant, then PROMESA says that\n\"the Oversight Board shall provide to the Legislature -- (i) a\nnotice of violation that includes a description of any necessary\ncorrective action; and (ii) an opportunity to correct the\nviolation.\" 48 U.S.C. § 2142(d)(1)(B).\n 9 The complaint was filed in the District of Puerto Rico\nin the Commonwealth's ongoing case under Title III of PROMESA.\n\n\n - 19 -\n\f327 F. Supp. 3d at 369-71. The court first held that the request\n\nfor a declaration about Fiscal Plan recommendations did not rest\n\non a proper Article III case or controversy, and it dismissed that\n\nrequest, which appeared in Paragraph 79 of the complaint, for lack\n\nof subject matter jurisdiction. Id. at 370-71. Next, in\n\ndismissing the remaining declaratory- and injunctive-relief\n\nclaims, the district court gave two reasons. To the extent those\n\nclaims directly challenged the Board's budget certification\n\ndecisions, the district court dismissed them for lack of subject\n\nmatter jurisdiction, relying on PROMESA § 106(e). Id. at 371.\n\nThat provision states that \"[t]here shall be no jurisdiction in\n\nany United States district court to review challenges to the\n\nOversight Board's certification determinations under [PROMESA].\"\n\n48 U.S.C. § 2126(e); see Rivera-Schatz, 327 F. Supp. 3d at 371.\n\nTo the extent that the remaining claims challenged the Board's\n\nactions as exceeding its authority under PROMESA or as encroaching\n\non the Legislative Assembly's power under Puerto Rico's\n\nConstitution, the district court dismissed them for failure to\n\nstate a claim. Rivera-Schatz, 327 F. Supp. 3d at 372-73.\n\n II.\n\n We review the district court's grant of the motion to\n\ndismiss de novo. See, e.g., Flores v. OneWest Bank, F.S.B., 886\n\nF.3d 160, 162 (1st Cir. 2018). In doing so, we analyze the issues\n\nwithin the basic three-part framework outlined by the district\n\n\n - 20 -\n\fcourt, considering first the request for a declaration about Fiscal\n\nPlan recommendations, and then the declaratory- and injunctive-\n\nrelief claims about the 2019 Budget.\n\n We affirm the district court's grounds for dismissal.\n\nFirst, the federal courts lack Article III jurisdiction over the\n\ncomplaint's request for a declaration about Fiscal Plan\n\nrecommendations. Second, the district court correctly concluded\n\nthat, under § 106(e), it lacked jurisdiction to review alleged\n\nerrors in the Board's certification determinations. Third, the\n\ncomplaint fails to state a claim to relief on the theory that the\n\nBoard exceeded its authority under PROMESA during the 2019 Fiscal\n\nPlan and Territorial Budget processes.\n\n The Board defends these grounds. It does not challenge\n\nthe district court's reading of § 106(e), and we do not engage\n\nthat topic.\n\nA. Article III Jurisdiction\n\n Count I of the complaint alleges that \"PROMESA does not\n\nallow the [Board] to bypass or usurp the Legislative Assembly's\n\nlegislative power\" by \"set[ting] forth the Commonwealth's public\n\npolicy\" as to \"the rights of employees in Puerto Rico.\" The Board\n\ndid just that, the complaint asserts, \"when it tried to force the\n\nLegislative Assembly to pass a bill retroactively repealing Law 80\n\nas a condition to approve the Commonwealth's budget.\" And when\n\nthe Legislative Assembly declined to repeal Law 80, the complaint\n\n\n - 21 -\n\fsays, the Board \"punished it by imposing severe cuts in its\n\noperational budget.\" Based on those allegations, Paragraph 79 of\n\nthe complaint says:\n\n Plaintiffs are therefore entitled to a\n judicial declaration under [the Declaratory\n Judgment Act] . . . that the rejected policy\n recommendations in the Fiscal Plan are\n non-binding recommendations, and that the\n Legislative Assembly cannot be compelled to\n implement any of those policies, and the\n [Board] may not take any actions to force\n compliance with such recommendations.\n\nThe federal courts lack Article III jurisdiction over Paragraph\n\n79's request.\n\n The Declaratory Judgment Act allows \"any court of the\n\nUnited States\" to \"declare the rights and other legal relations of\n\nany interested party seeking such declaration, whether or not\n\nfurther relief is or could be sought,\" but only \"[i]n a case of\n\nactual controversy within [that court's] jurisdiction.\" 28 U.S.C.\n\n§ 2201(a). As the Supreme Court has explained, \"the phrase 'case\n\nof actual controversy' in the Act refers to the type of 'Cases'\n\nand 'Controversies' that are justiciable under Article III.\"\n\nMedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)\n\n(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)).\n\nAlthough there is not \"the brightest of lines between those\n\ndeclaratory-judgment actions that satisfy the case-or-controversy\n\nrequirement and those that do not,\" id., \"[b]asically, the question\n\nin each case is whether the facts alleged, under all the\n\n\n - 22 -\n\fcircumstances, show that there is a substantial controversy,\n\nbetween parties having adverse legal interests, of sufficient\n\nimmediacy and reality to warrant the issuance of a declaratory\n\njudgment,\" Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,\n\n273 (1941).\n\n This standard cannot be satisfied if Paragraph 79 is\n\nread to request a declaration about the rights of the Board and\n\nthe Legislative Assembly whenever there is disagreement about\n\nwhether to implement a Fiscal Plan policy included by the Board.10\n\nThat would be a request for an advisory opinion about the import\n\nof Fiscal Plans under PROMESA.\n\n Appellants' attempts to read into Paragraph 79 a\n\njusticiable dispute with definite legal and factual dimensions\n\nfare no better under Article III's standard. The request cannot\n\nbe made justiciable by defining the \"rejected policy\n\nrecommendations\" as the labor reform package introduced in the\n\n\n\n 10 The district court observed that \"recommendations\" could\nrefer to \"the concept of 'recommendations' under Section 205 of\nPROMESA.\" Rivera-Schatz, 327 F. Supp. 3d at 370. Section 205\nallows the Board to make policy recommendations to the Governor or\nthe Legislative Assembly \"at any time\" and provides a procedure\nfor \"the territorial government\" to adopt or reject the\nrecommendations. 48 U.S.C. § 2145. In his brief, Méndez-Núñez,\nthe House Speaker, alludes to this reading. We agree with the\ndistrict court that, if Paragraph 79 refers to § 205\nrecommendations in the abstract, that paragraph requests an\nadvisory opinion about the \"meaning and effect of a section of the\nstatute,\" and we lack Article III jurisdiction. Rivera-Schatz,\n327 F. Supp. 3d at 371.\n\n\n - 23 -\n\fApril Fiscal Plan, as Rivera-Schatz, the Senate President, does in\n\nhis brief. Under this reading of Paragraph 79, the dispute lacks\n\nthe requisite reality: The currently certified Fiscal Plan does\n\nnot include the objected-to labor reforms, which were removed\n\nbefore the June version. To provide the declarations, then, would\n\nrequire a court to imagine a set of labor reforms into the Fiscal\n\nPlan and to predict the Board and the Legislative Assembly's\n\nreactive moves and counter-moves. The resulting declaration would\n\nbe an impermissible \"opinion advising what the law would be upon\n\na hypothetical state of facts.\" Aetna, 300 U.S. at 241.\n\n Appellants cannot get around this by reading Paragraph\n\n79 to request a declaration about the April or May Fiscal Plans\n\nand the ensuing actions of the Legislative Assembly and the Board.\n\nSuch a request would still be one for an advisory opinion, as past\n\ndifferences are not amenable to the type of relief that Article\n\nIII allows courts to give -- \"decree[s] of a conclusive character\"\n\nadjudicating adverse parties' actual rights and interests. Aetna,\n\n300 U.S. at 241; cf. Hall v. Beals, 396 U.S. 45, 48 (1969) (holding\n\nthat an amendment to the challenged statute eliminated any\n\n\"controversy of the kind that must exist if we are to avoid\n\nadvisory opinions\").\n\n Nor can the request be made justiciable by reading\n\nParagraph 79 to request a declaration on disputes that the\n\nappellants say are likely to arise under future Fiscal Plans. In\n\n\n - 24 -\n\fDeclaratory Judgment Act cases where jurisdiction is exercised\n\nbased on a threat of future injury, the potential injury is\n\ntypically legal liability on a set of already defined facts,11 so\n\nthat the Act merely \"defin[es] procedure\" to enable judicial\n\nresolution of a case or controversy that might otherwise be\n\nadjudicated at a different time or in a slightly different form.\n\nSee Aetna, 300 U.S. at 240. That is not this request. Whatever\n\nfuture disputes may arise have not yet been and may never be\n\nadequately framed by their factual dimensions. See Texas v. United\n\nStates, 523 U.S. 296, 300 (1998) (stating that a dispute is not\n\njusticiable \"if it rests upon 'contingent future events that may\n\nnot occur as anticipated, or indeed may not occur at all'\" (quoting\n\nThomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81\n\n(1985))). Declaratory claims based on abstractions are not\n\njusticiable under Article III. See Int'l Longshoremen's &\n\nWarehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 224 (1954)\n\n(\"Determination of the scope . . . of legislation\" on fictional\n\nfacts \"involves too remote and abstract an inquiry for the proper\n\nexercise of the judicial function.\").\n\n\n\n\n 11 See, e.g., Steffel v. Thompson, 415 U.S. 452, 475 (1974)\n(exercising jurisdiction over pre-prosecution challenge to\ncriminal statute); MedImmune, 549 U.S. at 137 (recognizing Article\nIII jurisdiction over declaratory claims based on threatened\nprivate enforcement action).\n\n\n - 25 -\n\fB. Statutory Subject Matter Jurisdiction\n\n The complaint also seeks a declaration that the June\n\nBudget certified by the Board \"is null and void\" and an injunction\n\n\"prohibiting the defendants from implementing and enforcing\" the\n\nBoard-developed and certified Budget and \"reinstat[ing]\" the\n\nLegislative Assembly's Budget. In support of this, Count II of\n\nthe complaint outlines a theory that the Board erred in determining\n\nthat Senate Bill 1011 did not conform with the May Fiscal Plan.\n\nThis error, Count II asserts, led the Board to a second erroneous\n\ndetermination that the June Fiscal Plan should be certified, then\n\nto a third erroneous determination that the Legislative Assembly's\n\nBudget should not be certified because it did not comply with the\n\nJune Fiscal Plan, and finally to a fourth erroneous determination\n\nthat the Board-developed Budget should be certified. The district\n\ncourt held that it lacked jurisdiction under § 106(e) over the\n\nclaims that rested on Count II's allegations. See Rivera-Schatz,\n\n327 F. Supp. 3d at 371.\n\n We agree. PROMESA grants the Board exclusive authority\n\nto certify Fiscal Plans and Territory Budgets for Puerto Rico. It\n\nthen insulates those certification decisions from judicial review\n\nin § 106(e): \"There shall be no jurisdiction in any United States\n\ndistrict court to review challenges to the Oversight Board's\n\ncertification determinations under this chapter.\" 48 U.S.C.\n\n§ 2126(e). Section 106(e) is an exception to PROMESA's general\n\n\n - 26 -\n\fgrant of jurisdiction at § 106(a), which provides that \"any action\n\nagainst the Oversight Board, and any action otherwise arising out\n\nof this chapter, in whole or in part, shall be brought in a United\n\nStates district court for the covered territory.\" Id. § 2126(a).\n\n Count II of the complaint alleges four unreviewable\n\nBoard errors in \"certification determinations under this chapter.\"\n\nId. § 2126(e). The district court was correct that it lacked\n\njurisdiction to review the Board's determination that the passage\n\nof Senate Bill 1011 was inconsistent with the May Fiscal Plan's\n\nrequirement to repeal Law 80. That determination was the basis\n\nfor the Board's decision to certify, under § 201(e)(2), the June\n\nFiscal Plan. And § 106(e) bars district courts from reviewing the\n\nreasons for certification determinations as much as the\n\ncertification determinations themselves. Nor did the district\n\ncourt have jurisdiction to review whether the Board erred in\n\ndeeming the Legislative Assembly's Budget non-compliant with the\n\napplicable Fiscal Plan and in certifying instead a Board-developed\n\nTerritory Budget. These decisions, which § 202 expressly empowers\n\nthe Board to make, see id. § 2142(d)-(e), are prototypical\n\n\"certification determinations under this chapter,\" id. § 2126(e).\n\n Rivera-Schatz's argument that the Board's determinations\n\nabout Territory Budgets adopted by the Legislative Assembly are\n\nreviewable runs headlong into the text of § 106(e). His argument\n\nrests on the following attempted contrast of §§ 201 and 202: § 201\n\n\n - 27 -\n\fstates that the Board has \"sole discretion\" to determine whether\n\nto certify a Fiscal Plan or a Budget proposed by the Governor, see\n\nid. § 2141(c)(3), (c)(1), while § 202 does not use the phrase \"sole\n\ndiscretion\" in granting the Board authority to \"determine whether\n\nthe [Legislature-]adopted Territory Budget is a compliant budget,\"\n\nid. § 2142(d)(1). From this, Rivera-Schatz asks us to infer first\n\nthat the Board's authority to make determinations about\n\nLegislature-adopted Budgets is non-exclusive. Rivera-Schatz urges\n\nthat a second inference -- that such determinations are subject to\n\njudicial review -- follows. Section 106(e)'s text forecloses\n\nthese inferences. It plainly bars judicial review of \"challenges\n\nto the Oversight Board's certification determinations.\" Id.\n\n§ 2126(e). It does not distinguish among the various certification\n\ndeterminations that PROMESA commits to the Board.\n\n Appellants next argue, by analogy to a doctrine of\n\nadministrative law, that the challenged certification\n\ndeterminations are reviewable, despite § 106(e)'s jurisdictional\n\nprohibition, because the Board's actions violated clear statutory\n\ndirectives in §§ 201 and 202. This court has never recognized\n\nsuch an exception to any statutory provision explicitly precluding\n\njudicial review. Cf. Paluca v. Sec'y of Labor, 813 F.2d 524, 528\n\n(1st Cir. 1987) (declining the invitation). Nor do we here. That\n\nis because (among other reasons) PROMESA's instructions to the\n\nBoard about certification are not comparable to the types of\n\n\n - 28 -\n\fcongressional commands that can prompt \"judicial review\n\nindependent of [statutory] review provisions.\" Kirby Corp. v.\n\nPeña, 109 F.3d 258, 269 (5th Cir. 1997) (defining the \"clear\n\nstatutory mandate\" exception as limited to administrative agency\n\nactions \"so contrary to the terms of the relevant statute that\n\n[they] necessitate[] judicial review independent of [statutory]\n\nreview provisions\"). To see this, compare the statutory rule\n\nviolated in Leedom v. Kyne, 358 U.S. 184 (1958), with the standards\n\nlaid out in PROMESA §§ 201 and 202. Kyne reviewed (without a\n\nstatute authorizing judicial review) a National Labor Relations\n\nBoard order certifying a collective bargaining unit mixing two\n\ntypes of employees, despite an unambiguous statutory bar on units\n\nmixing those employees. Id. at 185. In contrast, under § 201,\n\nthe Board has \"sole discretion\" to determine whether Fiscal Plans\n\ncomply with statutory requirements such as \"provide for the\n\nelimination of structural deficits.\" 48 U.S.C. § 2141(b)(1)(D);\n\nsee id. § 2141(b)-(c). Similarly, § 202 gives the Board\n\n\"discretion\" to decide whether a Territory Budget comports with a\n\nmultifaceted Fiscal Plan. See id. § 2142.\n\n Nor, finally, are appellants helped by their citations\n\nto McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).\n\nThat case allowed jurisdiction, despite a statutory bar on judicial\n\nreview, over a challenge to an agency's procedures under the Due\n\n\n\n\n - 29 -\n\fProcess Clause. Id. at 481-84. But no federal constitutional\n\nclaims have been brought here.\n\n The district court properly dismissed the challenges to\n\nthe Board's certification decisions in Count II for lack of\n\nstatutory subject matter jurisdiction.\n\nC. Failure to State a Claim\n\n The complaint could arguably be read to allege three\n\nremaining theories for relief.12 First, we read it to assert that\n\nthe Board exceeded its authority under PROMESA §§ 204 and 205,\n\nwhich grant the Board powers related to legislation. See 48 U.S.C.\n\n§§ 2144-2145; see also Aurelius Inv., 2019 WL 642328, at *12\n\n(noting the Board's legislation-related powers). Second, we read\n\nthe complaint as alleging that the Board's decision to certify a\n\n\n 12 Also remaining are two arguments made by appellants on\nappeal but not to the district court: (1) The Board exceeded its\nauthority under § 201 when it certified its June Fiscal Plan\nwithout allowing the Governor another opportunity to submit a\ncompliant Fiscal Plan. (2) The Board deliberately delayed\ncertifying its June Fiscal Plan so that the Legislative Assembly\nwould not have time before the start of Fiscal Year 2019 to approve\nand submit to the Board under § 202(d)(1) a Territory Budget\ncompliant with the Board's June Fiscal Plan. Neither argument was\ndeveloped in the pleadings, see Rivera-Schatz, 327 F. Supp. 3d at\n371 (cataloging other theories pled), and so we consider both\nwaived, see, e.g., French v. Bank of N.Y. Mellon, 729 F.3d 17, 19\nn.1 (1st Cir. 2013) (\"[B]elated allegations\" are waived.). In any\nevent, both arguments are also inconsistent with the events of the\nwinter, spring, and summer of 2018. The arguments overlook the\nlineage of the Board's June Fiscal Plan: That Fiscal Plan was the\nculmination of the formal development process and the informal\nnegotiation process between the Governor and the Board between\nJanuary and May. And the June Fiscal Plan was also identical, in\nall respects relevant to this case, to the April Fiscal Plan.\n\n\n - 30 -\n\fBoard-developed Budget that cut the Legislative Assembly's funds\n\nwas punitive and therefore \"contraven[ed] . . . the limited powers\n\ndelegated by Congress to the [Board].\" Third, we read the\n\ncomplaint to allege that the Board's decision to certify its Budget\n\nover the Legislative Assembly's impinged on the Legislative\n\nAssembly's power under Puerto Rico's Constitution.\n\n The district court chose to exercise jurisdiction over\n\nthese claims that the Board exceeded its authority under PROMESA,\n\na choice we do not evaluate,13 and to dismiss them for failure to\n\nstate a claim to relief. We affirm the dismissal, taking the three\n\nremaining arguments in turn.\n\n First, the complaint's assertions that the Board\n\nviolated §§ 204 and 205 rest on an inaccurate factual premise:\n\nthat the Board forced the Legislative Assembly to repeal or that\n\nthe Board otherwise nullified Law 80. The Board did nothing of\n\nthe sort; Law 80 remains on the books and the applicable Fiscal\n\nPlan does not call for its repeal.\n\n\n\n\n 13 The issue of whether § 106(e) also precludes\njurisdiction over these claims is not free from doubt, but we\nbypass it here and assume statutory subject matter jurisdiction\nbecause the merits of the remaining claims are quite easily\nresolved against the party invoking our jurisdiction. See, e.g.,\nMoriarty v. Colvin, 806 F.3d 664, 668 (1st Cir. 2015) (using\nhypothetical jurisdiction where the sidestepped jurisdictional\nquestion is statutory); Umstead v. Umstead, 446 F.3d 17, 20 n.2\n(1st Cir. 2006) (citing Restoration Pres. Masonry, Inc. v. Grove\nEur. Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003)) (same).\n\n\n - 31 -\n\f As to § 204, the complaint alleges that the Board\n\n\"invalidate[d]\" Law 80 and, in doing so, exceeded its authority\n\nunder § 204(a) to review laws that were enacted \"after, rather\n\nthan before the [Board] became operational.\"14 That provision\n\nauthorizes the Board to review, for consistency with the governing\n\nFiscal Plan, legislation that \"a territorial government duly\n\nenacts . . . during any fiscal year in which the Oversight Board\n\nis in operation.\" 48 U.S.C. § 2144(a)(1). It also empowers the\n\nBoard to \"direct the territorial government to . . . correct the\n\nlaw to eliminate\" any \"significant[] inconsisten[cy]\" with the\n\nFiscal Plan. Id. § 2144(a)(4)(B). And if \"the territorial\n\ngovernment fails to comply with\" such a directive, the Board may\n\n\"take such actions as it considers necessary . . . to ensure that\n\nthe enactment or enforcement of the law will not adversely affect\n\nthe territorial government's compliance with the Fiscal Plan,\n\nincluding preventing enforcement or application of the law.\" Id.\n\n§ 2144(a)(5). But the Board did not \"prevent[] enforcement or\n\napplication\" of Law 80. Id. The complaint fails to state a claim\n\nto relief based on § 204.\n\n\n\n\n 14 In his brief on appeal, Rivera-Schatz argues instead\nthat the Board unlawfully bypassed the § 204 process in deeming\nSenate Bill 1011 to be inconsistent with the Fiscal Plan. This\ntheory was not raised in the complaint or otherwise before the\ndistrict court and is therefore waived. See, e.g., French, 729\nF.3d at 19 n.1.\n\n\n - 32 -\n\f The complaint also fails to state a claim to relief based\n\non § 205. That provision allows the Board to \"at any time submit\n\nrecommendations to the Governor or the Legislature on actions the\n\nterritorial government may take to ensure compliance with the\n\nFiscal Plan.\" Id. § 2145(a). The Governor and the Legislative\n\nAssembly may then decide \"whether the territorial government will\n\nadopt the recommendations.\" Id. § 2145(b)(1). The complaint\n\nalleges that the labor reform package was a § 205 recommendation\n\nand that, because § 205 empowers the Legislative Assembly to reject\n\nsuch recommendations, the Board violated that provision in making\n\nthe reforms mandatory. But the Board did not impose any reforms.\n\nInstead, it removed the labor package from the Fiscal Plan after\n\nthe Legislative Assembly chose not to repeal Law 80.\n\n Next, the sequence of events leading to the\n\ncertification of the 2019 Budget refutes the second alleged theory.\n\nOn that theory, the complaint specifically says that, although the\n\nBoard lacks \"the power to impose penalties on Commonwealth officers\n\nor employees,\"15 the Board certified a 2019 Budget with a cut to\n\nthe Legislative Assembly's budget, a cut which the complaint\n\nalleges was a punitive response to the Legislative Assembly's\n\n\n\n 15 The complaint cites § 104(l), which subjects\nCommonwealth officials to discipline by the Governor, not by the\nBoard, for violation of \"any valid order of the Oversight Board.\"\n48 U.S.C. § 2124(l). We take no position on the meaning or effect\nof this provision.\n\n\n - 33 -\n\fdecision not to repeal Law 80. Yet, the recommendation that the\n\nLegislative Assembly's budget should be reduced, along with the\n\nbudgets of other government entities, originated in the April\n\nFiscal Plan, and preceded by months the Legislative Assembly's\n\nactions on Law 80. Further, after the Legislative Assembly\n\ndeclined to repeal Law 80, the Board acted within its authority\n\nwhen it certified a June Fiscal Plan and 2019 Territory Budget\n\nthat included the previously proposed cuts to the Legislative\n\nAssembly's operating budget. PROMESA authorizes the Board to adopt\n\nFiscal Plans and Budgets incentivizing the Legislative Assembly to\n\nenact the Board's recommended policies and accounting for the\n\nLegislative Assembly's responses to those recommended policies.\n\nSee id. §§ 2141-2151. Indeed, it is difficult to see how, without\n\nsuch powers, the Board could be effective in achieving Congress's\n\n\"purpose\" of \"provid[ing] a method for [Puerto Rico] to achieve\n\nfiscal responsibility and access to the capital markets.\" Id.\n\n§ 2121(a) (stating Board's purpose).\n\n Finally, the complaint alleges that the Board's decision\n\nto certify its Budget over the Legislative Assembly's was an\n\n\"unlawful[] encroach[ment] upon the Legislative Assembly's\n\nexclusive legislative power under the Puerto Rico Constitution.\"\n\nBut PROMESA accounts for the Legislative Assembly's power under\n\nthe Constitution: Under PROMESA's preemption provision, the grants\n\nof authority to the Board at §§ 201 and 202 to approve Fiscal Plans\n\n\n - 34 -\n\fand Budgets \"prevail over any general or specific provisions of\n\nterritory law,\" including provisions of Puerto Rico's Constitution\n\nthat are \"inconsistent with [PROMESA].\" Id. § 2103; see also\n\nMaldonado-Burgos, 844 F.3d at 346. PROMESA does generally reserve\n\n\"the power of [Puerto Rico] to control, by legislation or\n\notherwise, the territory.\" 48 U.S.C. § 2163. But this reservation\n\nof power is expressly \"[s]ubject to the limitations set forth in\n\n[Titles] I and II of [PROMESA],\" where §§ 201 and 202 appear. Id.\n\nWhen the Board certified the 2019 Fiscal Plan and Budget, then, it\n\nexercised authority granted to it under PROMESA.\n\n III.\n\n The judgment of the district court is affirmed. No costs\n\nare awarded.\n\n\n\n\n - 35 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370542/", "author_raw": "LYNCH, Circuit Judge"}]} | LYNCH | SOUTER | STAHL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593289/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Rivera-Schatz v. FOMB\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1773\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\n\n Debtors.\n\n\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\n the House of Representatives of Puerto Rico,\n\n Plaintiff, Appellant,\n\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\n the Senate of Puerto Rico,\n\n Plaintiff,\n\n v.\n\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\n SKEEL, JR.; NATALIE A. JARESKO,\n\n Defendants, Appellees,\n\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\n\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\n ELECTRIC POWER AUTHORITY (PREPA),\n\n Debtors, Appellees.\n\n\nNo. 18-1777\n\n IN RE: THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO\nRICO, AS REPRESENTATIVE FOR THE COMMONWEALTH OF PUERTO RICO; THE\n FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE PUERTO RICO HIGHWAYS AND TRANSPORTATION\n AUTHORITY; THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR\n PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO ELECTRIC\n POWER AUTHORITY (PREPA); THE FINANCIAL OVERSIGHT AND MANAGEMENT\n BOARD FOR PUERTO RICO, AS REPRESENTATIVE FOR THE PUERTO RICO\n SALES TAX FINANCING CORPORATION, a/k/a Cofina; THE FINANCIAL\n OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, AS\n REPRESENTATIVE FOR THE EMPLOYEES RETIREMENT SYSTEM OF THE\n GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO,\n\n Debtors.\n\n\n\n THOMAS RIVERA-SCHATZ, in his official capacity and on behalf of\n the Senate of Puerto Rico,\n\n Plaintiff, Appellant,\n\n CARLOS MÉNDEZ-NÚÑEZ, in his official capacity and on behalf of\n the House of Representatives of Puerto Rico,\n\n Plaintiff,\n\n v.\n\n THE FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO;\n JOSE B. CARRION, III; ANDREW G. BIGGS; CARLOS M. GARCIA; ARTHUR\n J. GONZALEZ; JOSE R. GONZALEZ; ANA J. MATOSANTOS; DAVID A.\n SKEEL, JR.; NATALIE A. JARESKO,\n\n Defendants, Appellees,\n\n COMMONWEALTH OF PUERTO RICO; PUERTO RICO SALES TAX FINANCING\n CORPORATION, a/k/a Cofina; PUERTO RICO HIGHWAYS AND\n TRANSPORTATION AUTHORITY; EMPLOYEES RETIREMENT SYSTEM OF THE\n\f GOVERNMENT OF THE COMMONWEALTH OF PUERTO RICO; PUERTO RICO\n ELECTRIC POWER AUTHORITY (PREPA),\n\n Debtors, Appellees.\n\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n\n [Hon. Laura Taylor Swain,* U.S. District Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter,** Associate Justice,\n and Stahl, Circuit Judge.\n\n\n\n Israel Roldán-González for Carlos Méndez-Núñez.\n Claudio Aliff-Ortiz, with whom Eliezer Aldarondo-Ortiz,\nSheila Torres-Delgado, David Rodríguez-Burns, and Aldarondo &\nLópez Bras ALB, were on brief for Thomas Rivera-Schatz.\n Timothy W. Mungovan, with whom John E. Roberts, Guy Brenner,\nMartin J. Bienenstock, Steven L. Ratner, Mark D. Harris, Kevin J.\nPerra, and Proskauer Rose LLP, were on brief, for the Financial\nOversight and Management Board for Puerto Rico; Jose B. Carrion,\nIII; Andrew G. Biggs; Carlos M. Garcia; Arthur J. Gonzalez; Jose\nR. Gonzalez; Ana J. Matosantos; David A. Skeel, Jr.; Natalie A.\nJaresko.\n\n\n February 22, 2019\n\n\n\n\n * Of the Southern District of New York, sitting by\ndesignation.\n ** Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f LYNCH, Circuit Judge. These appeals raise several\n\nquestions about the authority, under the Puerto Rico Oversight,\n\nManagement and Economic Stability Act (PROMESA), of the Financial\n\nOversight and Management Board for Puerto Rico to develop and\n\ncertify Fiscal Plans and Territory Budgets for the Commonwealth.\n\n48 U.S.C. §§ 2141-2142. In particular, this case is about the\n\n2019 Fiscal Plan and Territory Budget.\n\n The plaintiffs, the Speaker of Puerto Rico's House of\n\nRepresentatives, Carlos Méndez-Núñez, and the President of its\n\nSenate, Thomas Rivera-Schatz, in their official capacities and on\n\nbehalf of the Legislative Assembly, sued the Board, its members,\n\nand its executive director after the Board developed and certified\n\na Fiscal Plan and a Territory Budget for Fiscal Year 2019. The\n\ncomplaint alleged that the Board had made several erroneous\n\ncertification decisions and had exceeded its power under PROMESA\n\nduring the Fiscal Plan and Territory Budget development and\n\ncertification processes. It sought declaratory and injunctive\n\nrelief. The district court dismissed the complaint, in part for\n\nlack of subject matter jurisdiction and in part for failure to\n\nstate a claim. See Rivera-Schatz v. Fin. Oversight & Mgmt. Bd.\n\nfor P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 327 F. Supp.\n\n3d 364 (D.P.R. 2018). We affirm the dismissal on the same grounds.\n\n\n\n\n - 4 -\n\f I.\n\n We describe the statutory context and the relevant\n\nevents surrounding the 2019 Fiscal Plan and Territory Budget.1\n\nA. PROMESA's Basic Structure\n\n Finding Puerto Rico to be amid a \"fiscal emergency,\"\n\nCongress enacted PROMESA in 2016. See Pub. L. No. 114-187\n\n§ 405(m)(1), 130 Stat. 549, 591 (2016); see also Aurelius Inv.,\n\nLLC v. Commonwealth of P.R., Nos. 18-1671, 18-1746, 18-1787, 2019\n\nWL 642328, at *1-2 (1st Cir. Feb. 15, 2019) (recounting the origins\n\nof the emergency and the responses before PROMESA). PROMESA\n\ncreated mechanisms for restructuring the debts of U.S. territories\n\nand for overseeing reforms of their fiscal and economic policies.\n\nSee 48 U.S.C. § 2121(a) (stating this purpose). The Board,\n\nestablished \"as an entity within the territorial government\" of\n\nPuerto Rico, id. § 2121(c)(1), was empowered by PROMESA to, among\n\nother things, develop, approve, and certify Fiscal Plans and\n\nTerritory Budgets, id. §§ 2141-2142, negotiate with the\n\nCommonwealth's creditors, id. § 2146, and, under Title III, to\n\ncommence a bankruptcy-type proceeding on behalf of the\n\nCommonwealth, id. § 2175; see generally Aurelius Inv., 2019 WL\n\n\n\n 1 Because the complaint was disposed of at the motion to\ndismiss stage, we take the facts from the complaint, its\nattachments, and the motion to dismiss and its attachments. See,\ne.g., In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 14-15 (1st\nCir. 2003). There are no material disputes about this record.\n\n\n - 5 -\n\f642328, at *2-3, *11-12 (outlining key powers granted to the\n\nBoard).\n\n Congress enacted PROMESA under its Article IV \"Power to\n\ndispose of and make all needful Rules and Regulations respecting\n\nthe Territory . . . belonging to the United States.\" U.S. Const.\n\nart. IV § 3, cl. 2; see 48 U.S.C. § 2121(b)(2). Puerto Rico became\n\na U.S. territory in 1898, see Treaty of Paris, art. 9, Dec. 10,\n\n1898, 30 Stat. 1759, and is governed by a popularly elected\n\nGovernor and Legislative Assembly under a constitution adopted by\n\nPuerto Rico and approved by Congress under the Territorial Clause,\n\nsee Act of July 3, 1952, Pub. L. No. 447, ch. 567, 66 Stat. 327;\n\nsee also Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1875 (2016)\n\n(recognizing the congressional role in authorizing Puerto Rico's\n\n\"constitution-making process\" and in approving the resulting\n\nConstitution).\n\n PROMESA explicitly reserves \"the power of [Puerto Rico]\n\nto control, by legislation or otherwise, the territory,\" except as\n\nthat power is limited by Titles I and II of PROMESA. 48 U.S.C.\n\n§ 2163. In addition to that exception, PROMESA's provisions\n\npreempt any inconsistent \"general or specific provisions of\n\nterritory law,\" including provisions of Puerto Rico's\n\nConstitution. See id. § 2103; see also United States v. Maldonado-\n\nBurgos, 844 F.3d 339, 346 (1st Cir. 2016) (citing United States v.\n\nQuinones, 758 F.2d 40 (1st Cir. 1985) and then citing United States\n\n\n - 6 -\n\fv. Acosta-Martinez, 252 F.3d 13, 18 (1st Cir. 2001)) (\"[A]\n\nprovision of the Puerto Rico Constitution cannot prevail where it\n\nconflicts with applicable federal law.\").\n\n We have previously had occasion to interpret aspects of\n\nPROMESA's Title III. See Fin. Oversight & Mgmt. Bd. for P.R. v.\n\nAd Hoc Grp. of PREPA Bondholders (In re Fin. Oversight & Mgmt. Bd.\n\nfor P.R.), 899 F.3d 13, 18 (1st Cir. 2018); Peaje Invs. LLC v.\n\nGarcía-Padilla, 845 F.3d 505, 511 (1st Cir. 2017); Lex Claims, LLC\n\nv. Fin. Oversight & Mgmt. Bd., 853 F.3d 548, 552 (1st Cir. 2017);\n\nsee also Altair Glob. Credit Opportunities Fund, LLC v. The Emps.\n\nRet. Sys. (In re Fin. Oversight & Mgmt. Bd. for P.R.), 914 F.3d\n\n694, 707 (1st Cir. 2019) (noting PROMESA's enactment). Recently,\n\nin Aurelius Investment, LLC v. Commonwealth of Puerto Rico, 2019\n\nWL 642328, at *1, this court considered the constitutionality of\n\nPROMESA's procedure for appointing Board members, see 48 U.S.C.\n\n§ 2121(e). Aurelius' holding that this procedure violates the\n\nAppointments Clause, U.S. Const. art. II, § 2, cl. 2, has no effect\n\non the \"otherwise valid actions of the Board prior to the issuance\n\nof [Aurelius'] mandate,\" and so does not impact the outcome of\n\nthese appeals, Aurelius Inv., 2019 WL 642328, at *17.\n\n At issue here are events that occurred in 2018 and\n\nquestions of first impression about Title II's provisions related\n\nto Fiscal Plans and Territory Budgets. 48 U.S.C. §§ 2141-2142.\n\nWe explain those provisions in greater detail below.\n\n\n - 7 -\n\fB. 2019 Fiscal Plan\n\n Congress intended for Fiscal Plans to provide roadmaps\n\nfor Puerto Rico \"to achieve fiscal responsibility and access to\n\nthe capital markets.\" Id. § 2141(b)(1). PROMESA § 201 grants the\n\nBoard exclusive authority to review, approve, and certify these\n\nPlans.2 See id. § 2141(c)-(e); cf. Aurelius Inv., 2019 WL 642328,\n\nat *12 (describing these and related powers and characterizing\n\nthem as \"significant\"). That section also outlines a yearly\n\nprocess, involving only the Governor and the Board, for development\n\nof Fiscal Plans. See generally 48 U.S.C. § 2141. The Legislative\n\nAssembly has a formal role in economic planning and budgeting under\n\nPROMESA, but that role is limited to the Territory Budget\n\ndevelopment process. See id. § 2142(d).\n\n\n\n 2 PROMESA does provide one path for the Governor and the\nBoard to jointly develop and certify Fiscal Plans \"that meet[] the\nrequirements under [§ 201].\" 48 U.S.C. § 2141(f). The full\nprovision reads:\n (f) Joint development of Fiscal Plan\n Notwithstanding any other provision of this\n section, if the Governor and the Oversight\n Board jointly develop a Fiscal Plan for the\n fiscal year that meets the requirements under\n this section, and that the Governor and the\n Oversight Board certify that the fiscal plan\n reflects a consensus between the Governor and\n the Oversight Board, then such Fiscal Plan\n shall serve as the Fiscal Plan for the\n territory or territorial instrumentality for\n that fiscal year.\n\nId.\n\n\n - 8 -\n\f 1. Initial Development\n\n PROMESA's prescribed process for \"[d]evelopment, review,\n\napproval, and certification of Fiscal Plans\" occurs on a schedule\n\nset by the Board, id. § 2141(c); see id. § 2141(a), and begins\n\nwith the submission of a proposed Fiscal Plan by the Governor, see\n\nid. § 2141(c) (\"The Governor shall submit to the Oversight Board\n\nany proposed Fiscal Plan . . . .\"). For 2019, the Governor sent\n\nseveral versions of his proposed Fiscal Plan to the Board between\n\nJanuary and April 2018.\n\n The Board reviewed each of these proposals, as required\n\nby § 201(c)(3), which states that \"[t]he Oversight Board shall\n\nreview any proposed Fiscal Plan to determine whether it satisfies\n\nthe requirements set forth in subsection (b).\" Id. § 2141(c)(3).\n\nContained in subsection (b) are over a dozen specific requirements.\n\nThose include \"provid[ing] for the elimination of structural\n\ndeficits\" and \"for the investments necessary to promote economic\n\ngrowth.\" Id. § 2141(b)(1)(A)–(N).3\n\n\n 3 The requirements \"set forth in\" § 201(b) are:\n (A) provide for estimates of revenues and\n expenditures in conformance with agreed\n accounting standards and be based on --\n (i) applicable laws; or\n (ii) specific bills that require\n enactment in order to reasonably achieve\n the projections of the Fiscal Plan;\n (B) ensure the funding of essential public\n services;\n (C) provide adequate funding for public\n pension systems;\n\n - 9 -\n\f Here, the Board rejected each of the Governor's proposed\n\n2019 Fiscal Plans as not satisfying § 201(b)'s requirements.4 The\n\n\n\n\n (D) provide for the elimination of structural\n deficits;\n (E) for fiscal years covered by a Fiscal Plan\n in which a stay under subchapters III or IV is\n not effective, provide for a debt burden that\n is sustainable;\n (F) improve fiscal governance,\n accountability, and internal controls;\n (G) enable the achievement of fiscal targets;\n (H) create independent forecasts of revenue\n for the period covered by the Fiscal Plan;\n (I) include a debt sustainability analysis;\n (J) provide for capital expenditures and\n investments necessary to promote economic\n growth;\n (K) adopt appropriate recommendations\n submitted by the Oversight Board under section\n 2145(a) of this title;\n (L) include such additional information as the\n Oversight Board deems necessary;\n (M) ensure that assets, funds, or resources of\n a territorial instrumentality are not loaned\n to, transferred to, or otherwise used for the\n benefit of a covered territory or another\n covered territorial instrumentality of a\n covered territory, unless permitted by the\n constitution of the territory, an approved\n plan of adjustment under subchapter III, or a\n Qualifying Modification approved under\n subchapter VI; and\n (N) respect the relative lawful priorities or\n lawful liens, as may be applicable, in the\n constitution, other laws, or agreements of a\n covered territory or covered territorial\n instrumentality in effect prior to June 30,\n 2016.\n\n48 U.S.C. § 2141(b)(1).\n 4 If the Board had determined that one of the Fiscal Plans\nproposed by the Governor did \"satisf[y] such requirements, the\n\n\n - 10 -\n\fBoard returned two of the Governor's proposals to him, as required\n\nby § 201(c)(3)(B), with \"a notice of violation that includes\n\nrecommendations for revisions to the applicable Fiscal Plan;\n\nand . . . an opportunity to correct the violation.\" Id.\n\n§ 2141(c)(3)(B). At the time the Board rejected the Governor's\n\nfinal, April 2018, proposal, the deadline for certifying a 2019\n\nFiscal Plan had passed. Under such circumstances (that is, when\n\n\"the Governor fails to submit to the Oversight Board a Fiscal Plan\n\nthat the Oversight Board determines in its sole discretion\n\nsatisfies the requirements . . . by the time specified\"), PROMESA\n\n§ 201(d)(2) provides that \"the Oversight Board shall develop and\n\nsubmit to the Governor and the Legislature a Fiscal Plan that\n\nsatisfies the requirements.\" Id. § 2141(d)(2).\n\n 2. April 19, 2018 Fiscal Plan\n\n On April 19, 2018, the Board accordingly certified a\n\n2019 Fiscal Plan that it had developed. That Fiscal Plan was\n\nautomatically \"deemed approved by the Governor\" under § 201(e)(2).\n\nSee id. § 2141(e)(2) (\"If the Oversight Board develops a Fiscal\n\nPlan under subsection (d)(2), such Fiscal Plan shall be deemed\n\napproved by the Governor . . . .\").\n\n The April Fiscal Plan incorporated many aspects of the\n\nGovernor's proposed Fiscal Plan. It also included a labor reform\n\n\nOversight Board\" would have been required to \"approve\" and certify\nthat proposed Fiscal Plan. Id. § 2141(c)(3)(A), (e)(1).\n\n\n - 11 -\n\fpackage not proposed by the Governor. This was one among a set of\n\n\"comprehensive structural reforms to the economy of Puerto Rico\"\n\nset forth in the Plan. These comprehensive reforms, to Puerto\n\nRico's labor laws, business regulations, and infrastructure (among\n\nother areas), were designed by the Board to \"revers[e] the negative\n\ntrend [of economic] growth over the last 10 years and enabl[e] the\n\nIsland to become a vibrant and productive economy going forward.\"\n\n \"[I]ncreasing labor force participation may be the\n\nsingle most important reform for long-term economic well-being in\n\nPuerto Rico,\" the April Plan stated. It identified three \"labor\n\nmarket reforms\" intended \"[t]o reduce the cost to hire and\n\nencourage job creation, including movement of informal jobs to the\n\nformal economy.\" The three \"initiatives to change labor\n\nconditions\" were: a shift to at-will employment; a \"[r]eduction of\n\nmandated paid leave, including sick leave and vacation pay;\" and\n\nan end to \"mandated Christmas bonuses.\" The called-for adoption\n\nof at-will employment required the repeal of Puerto Rico's Law No.\n\n80 of May 30, 1976, P.R. Laws Ann. tit 29 §§ 185a-185m, which bars\n\ntermination of many private-sector employees without cause.\n\n As to this first reform, the Plan noted that \"49 out of\n\n50 U.S. states are employment at-will jurisdictions, giving\n\nemployers the flexibility to dismiss an employee without having to\n\nfirst prove just cause.\" It acknowledged that \"some employees\n\nbenefit from Puerto Rico's lack of at-will employment\" but credited\n\n\n - 12 -\n\fevidence that for-cause employment \"makes it more costly and risky\n\nnot only to dismiss, but also to hire, an employee.\" \"For\n\nexample,\" the Plan summarized, \"studies have found that laws\n\npreventing unfair dismissal caused reductions in employment,\n\nparticularly in labor-intensive industries.\" It concluded that\n\nswitching to at-will employment \"will lower the cost and risk of\n\nhiring in Puerto Rico.\"\n\n The Plan quantified the impact of the labor reform\n\npackage on the Commonwealth's annual budget surplus over thirty\n\nyears. It projected that, with the adoption of at-will employment,\n\nPuerto Rico would have a $39 billion cumulative surplus over that\n\nperiod, compared with a $2 billion cumulative surplus without the\n\nenactment of at-will employment.\n\n The April Fiscal Plan also cut the operating budget of\n\nthe Puerto Rican Legislative Assembly. These \"reductions for the\n\nLegislative Assembly\" were \"informed by benchmarking against other\n\nfull-time legislatures\" in the United States, the Plan explained.\n\nThe Puerto Rican Legislative Assembly's expenditure in Fiscal Year\n\n2018 was about 300% greater than the (population-weighted)\n\nnational average of full-time U.S. legislatures, according to an\n\nanalysis by the Board of publicly available data.5 The Plan stated\n\n\n\n\n 5 This analysis appeared in the Board's motion to dismiss.\n\n\n - 13 -\n\fthat these reductions would achieve \"reinvestment savings\" of\n\nbetween $23.6 and $25 million per year for the next five years.\n\n 3. May 30, 2018 Fiscal Plan\n\n The Governor and the Board continued negotiating about\n\nthe labor reform package and other matters after the April Fiscal\n\nPlan had been certified. Eventually, the Board agreed to certify\n\na revised Fiscal Plan that it had developed. It did so on May 30,\n\n2018. Two aspects of the Board's May Fiscal Plan are relevant to\n\nthese appeals.\n\n First, the May Fiscal Plan provided for a shift to\n\nat-will employment. Specifically:\n\n The Legislature shall introduce and the\n Governor shall sign a bill that repeals Act\n No. 80 . . . on or before June 27, 2018, which\n shall become effective on or before January 1,\n 2019. . . . The Bill shall state that, for\n the avoidance of doubt, an employee hired for\n an indefinite period of time does not have a\n cause of action against their employer merely\n for the employer's termination of the\n employment relation.\n\nThat is, the government of Puerto Rico would repeal Law 80 and\n\nclarify that employment is at will.\n\n Second, the cut to the Legislative Assembly's budget was\n\nremoved from the May version of the Fiscal Plan. In addition,\n\ncuts to the budget of the judiciary included in the April Fiscal\n\nPlan were \"reduced by half each year\" in the May version, a change\n\nthat increased the court system's budget by up to $23 million per\n\n\n\n\n - 14 -\n\fyear over what had been budgeted in the April version. According\n\nto a statement of understanding between the Governor and the Board,\n\nthese operating budgets were to \"be revisited annually,\" and these\n\nfunding levels were made contingent on Puerto Rico's \"compliance\n\nwith the then-applicable fiscal plan.\" That is, the May Fiscal\n\nPlan stated that the allocations for the Legislative Assembly and\n\nthe judiciary\n\n are pursuant to Puerto Rico becoming an\n employment at-will jurisdiction by repealing\n Law 80 of May 30, 1976 on or before June 27,\n 2018 . . . . If the repeal does not occur,\n none of these changes and alterations [to the\n Legislative Assembly's and the judiciary's\n budgets] shall be implemented.\n\n The Legislative Assembly did not repeal Law 80. Instead,\n\nthe day the Board certified the May Fiscal Plan, May 30, Puerto\n\nRico's Senate passed Senate Bill 1011, which made at-will\n\nemployment the rule for employees hired after the date of the\n\nbill's enactment, while retaining Law 80's for-cause rule for those\n\nalready employed.6\n\n The House of Representatives immediately began\n\nconsidering Senate Bill 1011. Recognizing that the bill did not\n\n\n\n\n 6 The Senate also studied a labor reform bill that the\nBoard had drafted based on the April Fiscal Plan. Based on\ntestimony from experts and a review of studies, a Senate committee\npenned a report in July 2018 rejecting the proposed bill and\nstating that the bill's reforms, including at-will employment,\n\"have not had a positive or significant impact in [other] economies\nwhere similar . . . reforms have been implemented.\"\n\n\n - 15 -\n\ffully repeal Law 80, the President of the House Government Affairs\n\nCommittee sent a letter to the Board asking about the \"effect on\n\nthe Fiscal Plan and the budget to be certified by the Financial\n\nOversight Board\" were the House to pass Senate Bill 1011. The\n\nBoard responded that same day, June 4, that, if the Legislative\n\nAssembly \"fails to comply exactly with the understanding reached\n\nwith the Oversight Board concerning the repeal of Law 80, the\n\nOversight Board will amend the Fiscal Plan and Budget to,\" among\n\nother things, \"[m]aintain the cuts to the budgets of the\n\nLegislature and Judiciary as outlined in the April 19 Fiscal Plan.\"\n\nTen days later, on June 14, the House passed Senate Bill 1011.\n\nThe parties agree that Senate Bill 1011 never became law; the\n\nrecord does not explain why.\n\n 4. June 29, 2018 Fiscal Plan\n\n On June 29, 2018, the Board informed the Governor and\n\nthe Legislative Assembly by letter that it was certifying a new\n\nFiscal Plan. As had been promised in the May Fiscal Plan and in\n\nthe Board's June 4 letter, the Board's June Fiscal Plan funded the\n\njudiciary and the Legislative Assembly at the levels stated in the\n\nApril Plan. The letter explained, \"Unfortunately, we now know\n\nthat the Government of Puerto Rico will not implement the [May]\n\nFiscal Plan in full because the Legislature . . . failed to pass\n\nthe most important component of the Labor Reform Package -- the\n\n\n\n\n - 16 -\n\frepeal of Law 80 and turning Puerto Rico into an at-will employment\n\njurisdiction.\"\n\n The labor reform package was absent from the Board's\n\nJune Fiscal Plan, certified June 29, 2018. On that subject, the\n\nJune Plan stated the following:\n\n [W]hile successful human capital and welfare\n reforms would have been projected to generate\n approximately $39 billion in additional\n revenues by FY2048 and over ~$320 million from\n FY2018-FY2023, the Legislature's demonstrated\n noncompliance with the comprehensive labor\n reform requirements of previous fiscal plans\n has forced the removal of these projected\n revenues from the New Fiscal Plan.\n\nC. 2019 Territory Budget\n\n PROMESA § 202 grants the Board exclusive authority to\n\nreview, approve, and certify Territory Budgets. See 48 U.S.C.\n\n§ 2142; see also Aurelius Inv., 2019 WL 642328, at *12 (recognizing\n\nthe Board's \"significant\" power to approve and reject Commonwealth\n\nbudgets). The Legislative Assembly's only responsibility under\n\n§ 202 is to \"submit to the Oversight Board the Territory Budget\n\nadopted by the Legislature.\" 48 U.S.C. § 2142(d)(1).\n\n For 2019, the Legislative Assembly did this on June 30,\n\n2018, the day before the start of the Fiscal Year. Earlier that\n\nday, the Legislature had approved an $8,708,623,000 Commonwealth\n\nbudget (which the Governor later signed).\n\n Also on June 30, the Board determined that the\n\nLegislative Assembly's Budget was non-compliant with the\n\n\n\n - 17 -\n\fBoard-certified June Fiscal Plan.7 The Legislative Assembly's\n\n$84,275,000 combined allocation for Puerto Rico's House of\n\nRepresentatives ($45,470,000) and Senate ($38,805,000) matched the\n\nbudget for the Legislative Assembly under the Board's May Fiscal\n\nPlan but exceeded the reduced allocation in the June Plan.\n\n The Board then immediately certified a Territory Budget\n\nit had developed totaling $8,757,524,000. Of this, and consistent\n\nwith the June Fiscal Plan, $65,292,000 was allocated to the\n\nLegislative Assembly ($35,228,000 to the House and $30,064,000 to\n\nthe Senate). In developing and certifying this Budget, the Board\n\nrelied on its authority under § 202(e)(3). That provision\n\nprovides:\n\n If the Governor and the Legislature fail to\n develop and approve a Territory Budget that is\n a compliant budget by the day before the first\n day of the fiscal year for which the Territory\n Budget is being developed, the Oversight Board\n shall submit a Budget to the Governor and the\n Legislature . . . and such Budget shall be --\n (A) deemed to be approved by the Governor\n and the Legislature; . . .\n (C) in full force and effect beginning on\n the first day of the applicable fiscal\n year.\n\n\n\n\n 7 If the Board had deemed this \"adopted Territory Budget\"\nto be compliant with the Fiscal Plan, then the Oversight Board\nwould have been required to \"issue a compliance certification for\nsuch compliant budget.\" 48 U.S.C. § 2142(d)(1)(A).\n\n\n - 18 -\n\fId. § 2142(e)(3).8 By operation of law, then, the Board's 2019\n\nTerritory Budget went into effect.\n\nD. Procedural History\n\n On July 9, plaintiffs filed their complaint against the\n\nBoard seeking the following relief:9 (1) a declaration \"that the\n\nrejected policy recommendations in the Fiscal Plan are non-binding\n\nrecommendations, and that the Legislative Assembly cannot be\n\ncompelled to implement any of those policies, and the [Board] may\n\nnot take any actions to force compliance with such\n\nrecommendations;\" (2) a declaration that the Territory Budget\n\ncertified by the Board \"is null and void;\" and (3) an injunction\n\n\"prohibiting the defendants from implementing and enforcing\" the\n\nBoard-developed and certified Budget and \"reinstat[ing]\" the\n\nBudget adopted by the Legislative Assembly. We describe the pled\n\ntheories for relief in the analysis.\n\n Defendants moved to dismiss the complaint for lack of\n\nsubject matter jurisdiction and for failure to state a claim to\n\nrelief, and the district court granted the motion. Rivera-Schatz,\n\n\n 8 Had these events occurred before \"the day before the\nfirst day of the fiscal year\" and had the Board determined that\nthe submitted Budget was not compliant, then PROMESA says that\n\"the Oversight Board shall provide to the Legislature -- (i) a\nnotice of violation that includes a description of any necessary\ncorrective action; and (ii) an opportunity to correct the\nviolation.\" 48 U.S.C. § 2142(d)(1)(B).\n 9 The complaint was filed in the District of Puerto Rico\nin the Commonwealth's ongoing case under Title III of PROMESA.\n\n\n - 19 -\n\f327 F. Supp. 3d at 369-71. The court first held that the request\n\nfor a declaration about Fiscal Plan recommendations did not rest\n\non a proper Article III case or controversy, and it dismissed that\n\nrequest, which appeared in Paragraph 79 of the complaint, for lack\n\nof subject matter jurisdiction. Id. at 370-71. Next, in\n\ndismissing the remaining declaratory- and injunctive-relief\n\nclaims, the district court gave two reasons. To the extent those\n\nclaims directly challenged the Board's budget certification\n\ndecisions, the district court dismissed them for lack of subject\n\nmatter jurisdiction, relying on PROMESA § 106(e). Id. at 371.\n\nThat provision states that \"[t]here shall be no jurisdiction in\n\nany United States district court to review challenges to the\n\nOversight Board's certification determinations under [PROMESA].\"\n\n48 U.S.C. § 2126(e); see Rivera-Schatz, 327 F. Supp. 3d at 371.\n\nTo the extent that the remaining claims challenged the Board's\n\nactions as exceeding its authority under PROMESA or as encroaching\n\non the Legislative Assembly's power under Puerto Rico's\n\nConstitution, the district court dismissed them for failure to\n\nstate a claim. Rivera-Schatz, 327 F. Supp. 3d at 372-73.\n\n II.\n\n We review the district court's grant of the motion to\n\ndismiss de novo. See, e.g., Flores v. OneWest Bank, F.S.B., 886\n\nF.3d 160, 162 (1st Cir. 2018). In doing so, we analyze the issues\n\nwithin the basic three-part framework outlined by the district\n\n\n - 20 -\n\fcourt, considering first the request for a declaration about Fiscal\n\nPlan recommendations, and then the declaratory- and injunctive-\n\nrelief claims about the 2019 Budget.\n\n We affirm the district court's grounds for dismissal.\n\nFirst, the federal courts lack Article III jurisdiction over the\n\ncomplaint's request for a declaration about Fiscal Plan\n\nrecommendations. Second, the district court correctly concluded\n\nthat, under § 106(e), it lacked jurisdiction to review alleged\n\nerrors in the Board's certification determinations. Third, the\n\ncomplaint fails to state a claim to relief on the theory that the\n\nBoard exceeded its authority under PROMESA during the 2019 Fiscal\n\nPlan and Territorial Budget processes.\n\n The Board defends these grounds. It does not challenge\n\nthe district court's reading of § 106(e), and we do not engage\n\nthat topic.\n\nA. Article III Jurisdiction\n\n Count I of the complaint alleges that \"PROMESA does not\n\nallow the [Board] to bypass or usurp the Legislative Assembly's\n\nlegislative power\" by \"set[ting] forth the Commonwealth's public\n\npolicy\" as to \"the rights of employees in Puerto Rico.\" The Board\n\ndid just that, the complaint asserts, \"when it tried to force the\n\nLegislative Assembly to pass a bill retroactively repealing Law 80\n\nas a condition to approve the Commonwealth's budget.\" And when\n\nthe Legislative Assembly declined to repeal Law 80, the complaint\n\n\n - 21 -\n\fsays, the Board \"punished it by imposing severe cuts in its\n\noperational budget.\" Based on those allegations, Paragraph 79 of\n\nthe complaint says:\n\n Plaintiffs are therefore entitled to a\n judicial declaration under [the Declaratory\n Judgment Act] . . . that the rejected policy\n recommendations in the Fiscal Plan are\n non-binding recommendations, and that the\n Legislative Assembly cannot be compelled to\n implement any of those policies, and the\n [Board] may not take any actions to force\n compliance with such recommendations.\n\nThe federal courts lack Article III jurisdiction over Paragraph\n\n79's request.\n\n The Declaratory Judgment Act allows \"any court of the\n\nUnited States\" to \"declare the rights and other legal relations of\n\nany interested party seeking such declaration, whether or not\n\nfurther relief is or could be sought,\" but only \"[i]n a case of\n\nactual controversy within [that court's] jurisdiction.\" 28 U.S.C.\n\n§ 2201(a). As the Supreme Court has explained, \"the phrase 'case\n\nof actual controversy' in the Act refers to the type of 'Cases'\n\nand 'Controversies' that are justiciable under Article III.\"\n\nMedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)\n\n(citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937)).\n\nAlthough there is not \"the brightest of lines between those\n\ndeclaratory-judgment actions that satisfy the case-or-controversy\n\nrequirement and those that do not,\" id., \"[b]asically, the question\n\nin each case is whether the facts alleged, under all the\n\n\n - 22 -\n\fcircumstances, show that there is a substantial controversy,\n\nbetween parties having adverse legal interests, of sufficient\n\nimmediacy and reality to warrant the issuance of a declaratory\n\njudgment,\" Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270,\n\n273 (1941).\n\n This standard cannot be satisfied if Paragraph 79 is\n\nread to request a declaration about the rights of the Board and\n\nthe Legislative Assembly whenever there is disagreement about\n\nwhether to implement a Fiscal Plan policy included by the Board.10\n\nThat would be a request for an advisory opinion about the import\n\nof Fiscal Plans under PROMESA.\n\n Appellants' attempts to read into Paragraph 79 a\n\njusticiable dispute with definite legal and factual dimensions\n\nfare no better under Article III's standard. The request cannot\n\nbe made justiciable by defining the \"rejected policy\n\nrecommendations\" as the labor reform package introduced in the\n\n\n\n 10 The district court observed that \"recommendations\" could\nrefer to \"the concept of 'recommendations' under Section 205 of\nPROMESA.\" Rivera-Schatz, 327 F. Supp. 3d at 370. Section 205\nallows the Board to make policy recommendations to the Governor or\nthe Legislative Assembly \"at any time\" and provides a procedure\nfor \"the territorial government\" to adopt or reject the\nrecommendations. 48 U.S.C. § 2145. In his brief, Méndez-Núñez,\nthe House Speaker, alludes to this reading. We agree with the\ndistrict court that, if Paragraph 79 refers to § 205\nrecommendations in the abstract, that paragraph requests an\nadvisory opinion about the \"meaning and effect of a section of the\nstatute,\" and we lack Article III jurisdiction. Rivera-Schatz,\n327 F. Supp. 3d at 371.\n\n\n - 23 -\n\fApril Fiscal Plan, as Rivera-Schatz, the Senate President, does in\n\nhis brief. Under this reading of Paragraph 79, the dispute lacks\n\nthe requisite reality: The currently certified Fiscal Plan does\n\nnot include the objected-to labor reforms, which were removed\n\nbefore the June version. To provide the declarations, then, would\n\nrequire a court to imagine a set of labor reforms into the Fiscal\n\nPlan and to predict the Board and the Legislative Assembly's\n\nreactive moves and counter-moves. The resulting declaration would\n\nbe an impermissible \"opinion advising what the law would be upon\n\na hypothetical state of facts.\" Aetna, 300 U.S. at 241.\n\n Appellants cannot get around this by reading Paragraph\n\n79 to request a declaration about the April or May Fiscal Plans\n\nand the ensuing actions of the Legislative Assembly and the Board.\n\nSuch a request would still be one for an advisory opinion, as past\n\ndifferences are not amenable to the type of relief that Article\n\nIII allows courts to give -- \"decree[s] of a conclusive character\"\n\nadjudicating adverse parties' actual rights and interests. Aetna,\n\n300 U.S. at 241; cf. Hall v. Beals, 396 U.S. 45, 48 (1969) (holding\n\nthat an amendment to the challenged statute eliminated any\n\n\"controversy of the kind that must exist if we are to avoid\n\nadvisory opinions\").\n\n Nor can the request be made justiciable by reading\n\nParagraph 79 to request a declaration on disputes that the\n\nappellants say are likely to arise under future Fiscal Plans. In\n\n\n - 24 -\n\fDeclaratory Judgment Act cases where jurisdiction is exercised\n\nbased on a threat of future injury, the potential injury is\n\ntypically legal liability on a set of already defined facts,11 so\n\nthat the Act merely \"defin[es] procedure\" to enable judicial\n\nresolution of a case or controversy that might otherwise be\n\nadjudicated at a different time or in a slightly different form.\n\nSee Aetna, 300 U.S. at 240. That is not this request. Whatever\n\nfuture disputes may arise have not yet been and may never be\n\nadequately framed by their factual dimensions. See Texas v. United\n\nStates, 523 U.S. 296, 300 (1998) (stating that a dispute is not\n\njusticiable \"if it rests upon 'contingent future events that may\n\nnot occur as anticipated, or indeed may not occur at all'\" (quoting\n\nThomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81\n\n(1985))). Declaratory claims based on abstractions are not\n\njusticiable under Article III. See Int'l Longshoremen's &\n\nWarehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 224 (1954)\n\n(\"Determination of the scope . . . of legislation\" on fictional\n\nfacts \"involves too remote and abstract an inquiry for the proper\n\nexercise of the judicial function.\").\n\n\n\n\n 11 See, e.g., Steffel v. Thompson, 415 U.S. 452, 475 (1974)\n(exercising jurisdiction over pre-prosecution challenge to\ncriminal statute); MedImmune, 549 U.S. at 137 (recognizing Article\nIII jurisdiction over declaratory claims based on threatened\nprivate enforcement action).\n\n\n - 25 -\n\fB. Statutory Subject Matter Jurisdiction\n\n The complaint also seeks a declaration that the June\n\nBudget certified by the Board \"is null and void\" and an injunction\n\n\"prohibiting the defendants from implementing and enforcing\" the\n\nBoard-developed and certified Budget and \"reinstat[ing]\" the\n\nLegislative Assembly's Budget. In support of this, Count II of\n\nthe complaint outlines a theory that the Board erred in determining\n\nthat Senate Bill 1011 did not conform with the May Fiscal Plan.\n\nThis error, Count II asserts, led the Board to a second erroneous\n\ndetermination that the June Fiscal Plan should be certified, then\n\nto a third erroneous determination that the Legislative Assembly's\n\nBudget should not be certified because it did not comply with the\n\nJune Fiscal Plan, and finally to a fourth erroneous determination\n\nthat the Board-developed Budget should be certified. The district\n\ncourt held that it lacked jurisdiction under § 106(e) over the\n\nclaims that rested on Count II's allegations. See Rivera-Schatz,\n\n327 F. Supp. 3d at 371.\n\n We agree. PROMESA grants the Board exclusive authority\n\nto certify Fiscal Plans and Territory Budgets for Puerto Rico. It\n\nthen insulates those certification decisions from judicial review\n\nin § 106(e): \"There shall be no jurisdiction in any United States\n\ndistrict court to review challenges to the Oversight Board's\n\ncertification determinations under this chapter.\" 48 U.S.C.\n\n§ 2126(e). Section 106(e) is an exception to PROMESA's general\n\n\n - 26 -\n\fgrant of jurisdiction at § 106(a), which provides that \"any action\n\nagainst the Oversight Board, and any action otherwise arising out\n\nof this chapter, in whole or in part, shall be brought in a United\n\nStates district court for the covered territory.\" Id. § 2126(a).\n\n Count II of the complaint alleges four unreviewable\n\nBoard errors in \"certification determinations under this chapter.\"\n\nId. § 2126(e). The district court was correct that it lacked\n\njurisdiction to review the Board's determination that the passage\n\nof Senate Bill 1011 was inconsistent with the May Fiscal Plan's\n\nrequirement to repeal Law 80. That determination was the basis\n\nfor the Board's decision to certify, under § 201(e)(2), the June\n\nFiscal Plan. And § 106(e) bars district courts from reviewing the\n\nreasons for certification determinations as much as the\n\ncertification determinations themselves. Nor did the district\n\ncourt have jurisdiction to review whether the Board erred in\n\ndeeming the Legislative Assembly's Budget non-compliant with the\n\napplicable Fiscal Plan and in certifying instead a Board-developed\n\nTerritory Budget. These decisions, which § 202 expressly empowers\n\nthe Board to make, see id. § 2142(d)-(e), are prototypical\n\n\"certification determinations under this chapter,\" id. § 2126(e).\n\n Rivera-Schatz's argument that the Board's determinations\n\nabout Territory Budgets adopted by the Legislative Assembly are\n\nreviewable runs headlong into the text of § 106(e). His argument\n\nrests on the following attempted contrast of §§ 201 and 202: § 201\n\n\n - 27 -\n\fstates that the Board has \"sole discretion\" to determine whether\n\nto certify a Fiscal Plan or a Budget proposed by the Governor, see\n\nid. § 2141(c)(3), (c)(1), while § 202 does not use the phrase \"sole\n\ndiscretion\" in granting the Board authority to \"determine whether\n\nthe [Legislature-]adopted Territory Budget is a compliant budget,\"\n\nid. § 2142(d)(1). From this, Rivera-Schatz asks us to infer first\n\nthat the Board's authority to make determinations about\n\nLegislature-adopted Budgets is non-exclusive. Rivera-Schatz urges\n\nthat a second inference -- that such determinations are subject to\n\njudicial review -- follows. Section 106(e)'s text forecloses\n\nthese inferences. It plainly bars judicial review of \"challenges\n\nto the Oversight Board's certification determinations.\" Id.\n\n§ 2126(e). It does not distinguish among the various certification\n\ndeterminations that PROMESA commits to the Board.\n\n Appellants next argue, by analogy to a doctrine of\n\nadministrative law, that the challenged certification\n\ndeterminations are reviewable, despite § 106(e)'s jurisdictional\n\nprohibition, because the Board's actions violated clear statutory\n\ndirectives in §§ 201 and 202. This court has never recognized\n\nsuch an exception to any statutory provision explicitly precluding\n\njudicial review. Cf. Paluca v. Sec'y of Labor, 813 F.2d 524, 528\n\n(1st Cir. 1987) (declining the invitation). Nor do we here. That\n\nis because (among other reasons) PROMESA's instructions to the\n\nBoard about certification are not comparable to the types of\n\n\n - 28 -\n\fcongressional commands that can prompt \"judicial review\n\nindependent of [statutory] review provisions.\" Kirby Corp. v.\n\nPeña, 109 F.3d 258, 269 (5th Cir. 1997) (defining the \"clear\n\nstatutory mandate\" exception as limited to administrative agency\n\nactions \"so contrary to the terms of the relevant statute that\n\n[they] necessitate[] judicial review independent of [statutory]\n\nreview provisions\"). To see this, compare the statutory rule\n\nviolated in Leedom v. Kyne, 358 U.S. 184 (1958), with the standards\n\nlaid out in PROMESA §§ 201 and 202. Kyne reviewed (without a\n\nstatute authorizing judicial review) a National Labor Relations\n\nBoard order certifying a collective bargaining unit mixing two\n\ntypes of employees, despite an unambiguous statutory bar on units\n\nmixing those employees. Id. at 185. In contrast, under § 201,\n\nthe Board has \"sole discretion\" to determine whether Fiscal Plans\n\ncomply with statutory requirements such as \"provide for the\n\nelimination of structural deficits.\" 48 U.S.C. § 2141(b)(1)(D);\n\nsee id. § 2141(b)-(c). Similarly, § 202 gives the Board\n\n\"discretion\" to decide whether a Territory Budget comports with a\n\nmultifaceted Fiscal Plan. See id. § 2142.\n\n Nor, finally, are appellants helped by their citations\n\nto McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991).\n\nThat case allowed jurisdiction, despite a statutory bar on judicial\n\nreview, over a challenge to an agency's procedures under the Due\n\n\n\n\n - 29 -\n\fProcess Clause. Id. at 481-84. But no federal constitutional\n\nclaims have been brought here.\n\n The district court properly dismissed the challenges to\n\nthe Board's certification decisions in Count II for lack of\n\nstatutory subject matter jurisdiction.\n\nC. Failure to State a Claim\n\n The complaint could arguably be read to allege three\n\nremaining theories for relief.12 First, we read it to assert that\n\nthe Board exceeded its authority under PROMESA §§ 204 and 205,\n\nwhich grant the Board powers related to legislation. See 48 U.S.C.\n\n§§ 2144-2145; see also Aurelius Inv., 2019 WL 642328, at *12\n\n(noting the Board's legislation-related powers). Second, we read\n\nthe complaint as alleging that the Board's decision to certify a\n\n\n 12 Also remaining are two arguments made by appellants on\nappeal but not to the district court: (1) The Board exceeded its\nauthority under § 201 when it certified its June Fiscal Plan\nwithout allowing the Governor another opportunity to submit a\ncompliant Fiscal Plan. (2) The Board deliberately delayed\ncertifying its June Fiscal Plan so that the Legislative Assembly\nwould not have time before the start of Fiscal Year 2019 to approve\nand submit to the Board under § 202(d)(1) a Territory Budget\ncompliant with the Board's June Fiscal Plan. Neither argument was\ndeveloped in the pleadings, see Rivera-Schatz, 327 F. Supp. 3d at\n371 (cataloging other theories pled), and so we consider both\nwaived, see, e.g., French v. Bank of N.Y. Mellon, 729 F.3d 17, 19\nn.1 (1st Cir. 2013) (\"[B]elated allegations\" are waived.). In any\nevent, both arguments are also inconsistent with the events of the\nwinter, spring, and summer of 2018. The arguments overlook the\nlineage of the Board's June Fiscal Plan: That Fiscal Plan was the\nculmination of the formal development process and the informal\nnegotiation process between the Governor and the Board between\nJanuary and May. And the June Fiscal Plan was also identical, in\nall respects relevant to this case, to the April Fiscal Plan.\n\n\n - 30 -\n\fBoard-developed Budget that cut the Legislative Assembly's funds\n\nwas punitive and therefore \"contraven[ed] . . . the limited powers\n\ndelegated by Congress to the [Board].\" Third, we read the\n\ncomplaint to allege that the Board's decision to certify its Budget\n\nover the Legislative Assembly's impinged on the Legislative\n\nAssembly's power under Puerto Rico's Constitution.\n\n The district court chose to exercise jurisdiction over\n\nthese claims that the Board exceeded its authority under PROMESA,\n\na choice we do not evaluate,13 and to dismiss them for failure to\n\nstate a claim to relief. We affirm the dismissal, taking the three\n\nremaining arguments in turn.\n\n First, the complaint's assertions that the Board\n\nviolated §§ 204 and 205 rest on an inaccurate factual premise:\n\nthat the Board forced the Legislative Assembly to repeal or that\n\nthe Board otherwise nullified Law 80. The Board did nothing of\n\nthe sort; Law 80 remains on the books and the applicable Fiscal\n\nPlan does not call for its repeal.\n\n\n\n\n 13 The issue of whether § 106(e) also precludes\njurisdiction over these claims is not free from doubt, but we\nbypass it here and assume statutory subject matter jurisdiction\nbecause the merits of the remaining claims are quite easily\nresolved against the party invoking our jurisdiction. See, e.g.,\nMoriarty v. Colvin, 806 F.3d 664, 668 (1st Cir. 2015) (using\nhypothetical jurisdiction where the sidestepped jurisdictional\nquestion is statutory); Umstead v. Umstead, 446 F.3d 17, 20 n.2\n(1st Cir. 2006) (citing Restoration Pres. Masonry, Inc. v. Grove\nEur. Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003)) (same).\n\n\n - 31 -\n\f As to § 204, the complaint alleges that the Board\n\n\"invalidate[d]\" Law 80 and, in doing so, exceeded its authority\n\nunder § 204(a) to review laws that were enacted \"after, rather\n\nthan before the [Board] became operational.\"14 That provision\n\nauthorizes the Board to review, for consistency with the governing\n\nFiscal Plan, legislation that \"a territorial government duly\n\nenacts . . . during any fiscal year in which the Oversight Board\n\nis in operation.\" 48 U.S.C. § 2144(a)(1). It also empowers the\n\nBoard to \"direct the territorial government to . . . correct the\n\nlaw to eliminate\" any \"significant[] inconsisten[cy]\" with the\n\nFiscal Plan. Id. § 2144(a)(4)(B). And if \"the territorial\n\ngovernment fails to comply with\" such a directive, the Board may\n\n\"take such actions as it considers necessary . . . to ensure that\n\nthe enactment or enforcement of the law will not adversely affect\n\nthe territorial government's compliance with the Fiscal Plan,\n\nincluding preventing enforcement or application of the law.\" Id.\n\n§ 2144(a)(5). But the Board did not \"prevent[] enforcement or\n\napplication\" of Law 80. Id. The complaint fails to state a claim\n\nto relief based on § 204.\n\n\n\n\n 14 In his brief on appeal, Rivera-Schatz argues instead\nthat the Board unlawfully bypassed the § 204 process in deeming\nSenate Bill 1011 to be inconsistent with the Fiscal Plan. This\ntheory was not raised in the complaint or otherwise before the\ndistrict court and is therefore waived. See, e.g., French, 729\nF.3d at 19 n.1.\n\n\n - 32 -\n\f The complaint also fails to state a claim to relief based\n\non § 205. That provision allows the Board to \"at any time submit\n\nrecommendations to the Governor or the Legislature on actions the\n\nterritorial government may take to ensure compliance with the\n\nFiscal Plan.\" Id. § 2145(a). The Governor and the Legislative\n\nAssembly may then decide \"whether the territorial government will\n\nadopt the recommendations.\" Id. § 2145(b)(1). The complaint\n\nalleges that the labor reform package was a § 205 recommendation\n\nand that, because § 205 empowers the Legislative Assembly to reject\n\nsuch recommendations, the Board violated that provision in making\n\nthe reforms mandatory. But the Board did not impose any reforms.\n\nInstead, it removed the labor package from the Fiscal Plan after\n\nthe Legislative Assembly chose not to repeal Law 80.\n\n Next, the sequence of events leading to the\n\ncertification of the 2019 Budget refutes the second alleged theory.\n\nOn that theory, the complaint specifically says that, although the\n\nBoard lacks \"the power to impose penalties on Commonwealth officers\n\nor employees,\"15 the Board certified a 2019 Budget with a cut to\n\nthe Legislative Assembly's budget, a cut which the complaint\n\nalleges was a punitive response to the Legislative Assembly's\n\n\n\n 15 The complaint cites § 104(l), which subjects\nCommonwealth officials to discipline by the Governor, not by the\nBoard, for violation of \"any valid order of the Oversight Board.\"\n48 U.S.C. § 2124(l). We take no position on the meaning or effect\nof this provision.\n\n\n - 33 -\n\fdecision not to repeal Law 80. Yet, the recommendation that the\n\nLegislative Assembly's budget should be reduced, along with the\n\nbudgets of other government entities, originated in the April\n\nFiscal Plan, and preceded by months the Legislative Assembly's\n\nactions on Law 80. Further, after the Legislative Assembly\n\ndeclined to repeal Law 80, the Board acted within its authority\n\nwhen it certified a June Fiscal Plan and 2019 Territory Budget\n\nthat included the previously proposed cuts to the Legislative\n\nAssembly's operating budget. PROMESA authorizes the Board to adopt\n\nFiscal Plans and Budgets incentivizing the Legislative Assembly to\n\nenact the Board's recommended policies and accounting for the\n\nLegislative Assembly's responses to those recommended policies.\n\nSee id. §§ 2141-2151. Indeed, it is difficult to see how, without\n\nsuch powers, the Board could be effective in achieving Congress's\n\n\"purpose\" of \"provid[ing] a method for [Puerto Rico] to achieve\n\nfiscal responsibility and access to the capital markets.\" Id.\n\n§ 2121(a) (stating Board's purpose).\n\n Finally, the complaint alleges that the Board's decision\n\nto certify its Budget over the Legislative Assembly's was an\n\n\"unlawful[] encroach[ment] upon the Legislative Assembly's\n\nexclusive legislative power under the Puerto Rico Constitution.\"\n\nBut PROMESA accounts for the Legislative Assembly's power under\n\nthe Constitution: Under PROMESA's preemption provision, the grants\n\nof authority to the Board at §§ 201 and 202 to approve Fiscal Plans\n\n\n - 34 -\n\fand Budgets \"prevail over any general or specific provisions of\n\nterritory law,\" including provisions of Puerto Rico's Constitution\n\nthat are \"inconsistent with [PROMESA].\" Id. § 2103; see also\n\nMaldonado-Burgos, 844 F.3d at 346. PROMESA does generally reserve\n\n\"the power of [Puerto Rico] to control, by legislation or\n\notherwise, the territory.\" 48 U.S.C. § 2163. But this reservation\n\nof power is expressly \"[s]ubject to the limitations set forth in\n\n[Titles] I and II of [PROMESA],\" where §§ 201 and 202 appear. Id.\n\nWhen the Board certified the 2019 Fiscal Plan and Budget, then, it\n\nexercised authority granted to it under PROMESA.\n\n III.\n\n The judgment of the district court is affirmed. No costs\n\nare awarded.\n\n\n\n\n - 35 -\n[END_CASE]",
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4,593,290 | Brendan KELLY, Plaintiff, Appellant, v. LIBERTY INSURANCE CORPORATION, D/B/A Liberty Mutual, Defendant, Appellee. | Kelly v. Liberty Insurance Corp. | 2019-02-22 | 18-1614P | U.S. Court of Appeals for the First Circuit | {"judges": "Kayatta, Souter, Selya", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 18-1614\n\n BRENDAN KELLY,\n\n Plaintiff, Appellant,\n\n v.\n\n LIBERTY INSURANCE CORPORATION,\n\n D/B/A LIBERTY MUTUAL,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Joseph N. Laplante, U.S. District Judge]\n\n\n Before\n\n Kayatta, Circuit Judge,\n Souter, Associate Justice,*\n and Selya, Circuit Judge.\n\n\n Robert A. Stein, with whom Diane L. Perin and The Stein Law\nFirm, PLLC, were on briefs, for appellant.\n Nancy D. Adams, with whom Lavinia M. Weizel and Mintz, Levin,\nCohn, Ferris, Glovsky and Popeo, P.C., were on brief, for appellee.\n\n\n February 22, 2019\n\n\n\n\n * Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f SOUTER, Associate Justice. In this diversity case,\n\nBrendan Kelly sought a declaratory judgment against Liberty Mutual\n\nInsurance Corporation, on his claim that Liberty was bound to\n\nprovide uninsured (or underinsured) motorist coverage for his\n\nbenefit. See N.H. RSA 259:117. The insurance contract in question\n\nwas an umbrella policy issued to Plum Creek Timber Company, Kelly's\n\nemployer and the named insured. The District Court granted summary\n\njudgment for Liberty Mutual. We affirm.\n\n The policy was issued in New Hampshire, whose law\n\ncontrols. Thus the insurer bears the burden of proof, N.H. RSA\n\n491:22-a, and policy language is to be construed as a reasonable\n\nperson would understand it upon more than a casual reading of the\n\npolicy as a whole, Russell v. NGM Ins. Co., 176 A.3d 196, 200 (N.H.\n\n2017).\n\n Liberty's policy was one of two issued to Plum Creek\n\nthat provided benefits to its employees as additional insureds\n\nwhen acting within the scope of employment, as Liberty recognizes\n\nthat Kelly was doing when injured in a two-party highway collision\n\nwhile driving a Plum Creek truck. Terms of the umbrella policy,\n\nlike those of the underlying basic policy, were regulated by RSA\n\n264:15, which included the following mandate relevant here:\n\n \"[U]mbrella or excess policies . . . shall\n also provide uninsured motorist coverage equal\n to the limits of liability purchased, unless\n the named insured rejects such coverage in\n writing. Rejection of such coverage by a\n\n\n - 2 -\n\f named insured shall constitute a rejection of\n coverage by all insureds . . . .\"\n\n There is no dispute that Plum Creek, the named insured,\n\ndid reject uninsured motorist coverage and did so in writing. The\n\nwriting itself, however, was not incorporated into the policy. It\n\nwas not attached to the other policy papers, nor was it mentioned\n\nin the text of the policy or in any incorporated attachment. It\n\nis this absence from the policy materials of an express mention of\n\nthe rejection that is the point on which Kelly's coverage claim\n\nturns: Kelly claims that the want of an explicit reference to\n\nPlum Creek's written rejection renders the rejection inoperative\n\nagainst an additional insured like Kelly, with the consequence\n\nthat RSA 264:15 requires provision of uninsured motorist coverage\n\nunder the statute's general rule.\n\n The apparently fatal flaw undermining this position is\n\nthe absence from RSA 264:15 of any requirement that the policy\n\nmaterials explicitly speak of the rejection of uninsured motorist\n\ncoverage. Rather, it is the requirement that the rejection be \"in\n\nwriting\" that ostensibly regulates the contractual relationship\n\nbetween the insurer and the named insured and, derivatively, an\n\nadditional insured. Thus, the apparent statutory objective is\n\nprotection against an act of rejection that is not well considered\n\nand a failure of the insurer to provide the coverage that the named\n\ninsured has reason to expect. See Angela Spradling, Hearing on SB\n\n\n\n - 3 -\n\f38 Before the S. Comm. on Commerce, Labor, and Consumer Protection\n\n(Comm. Print 2007) (statement of Sen. Lou D'Allesandro).\n\n Because the statute does not contain an explicit\n\nreference requirement, Kelly is left to argue that his position is\n\nimplicit in the statute, on the ground that its object is also to\n\nprotect additional insureds who need to know whether they should\n\nprocure insurance independently in order to obtain adequate\n\nprotection against uninsured motorists. But even assuming that\n\nthe statute implicitly protects additional insureds, the statute\n\ndoes not support Kelly's argument because the additional insureds\n\nare not left in the dark under this umbrella policy as it is. This\n\nis clear from three policy provisions that a reasonable and\n\nattentive reader would find:\n\n 1. \"This policy contains all the agreements\n between you and us concerning the insurance\n afforded. This policy's terms can be amended\n or waived only by endorsement issued by us and\n made a part of this policy.\" Umbrella Policy\n § IV.15.\n\n 2. \"We will pay those sums . . . that the\n insured becomes legally obligated to pay as\n damages because of: (1) 'Bodily injury'; (2)\n 'Property damage'; or (3) 'Personal and\n advertising injury'; to which this insurance\n applies.\" Id. § I.1.a.1\n\n\n 1 Though not on point here, this provision is elsewhere\nlimited. A different provision of the policy states: \"This\ninsurance does not apply to: . . . '[b]odily injury' or 'property\ndamage' arising out of the ownership, maintenance, use or\nentrustment to others . . . of any 'auto.'\" Umbrella Policy\n§§ I.2, I.2.f.1.\n\n\n - 4 -\n\f 3. \"This insurance does not apply to: . . .\n [a]ny loss, cost or expense payable under or\n resulting from a[n] . . . uninsured or\n underinsured motorist law, except to the\n extent coverage is specifically provided by\n endorsement to this policy.\" Id. §§ I.2,\n I.2.f.2.\n\n These provisions amount to a belt-and-suspenders\n\napproach to omission of uninsured motorist coverage in the Plum\n\nCreek policy. The integration clause (1) says clearly that there\n\nare no relevant agreements outside the policy. The statement of\n\nbasic coverage (2) describes the policy's scope as covering sums\n\nthat \"the insured becomes legally obligated to pay.\" Id. § I.1.a.\n\nThat is, it describes what insureds are liable to pay to someone\n\nelse for damage insureds caused or are responsible for, not what\n\ninsureds could claim as recompense for harm inflicted on them by\n\nsomeone else, which uninsured motorist coverage provides. We have\n\nbeen directed to no policy language that could be construed to\n\nprovide the latter. And finally, lest there be any doubt about it\n\nin the mind of the reasonable reader, the statement of exclusions\n\n(3) expressly indicates that the policy does not cover any \"loss,\n\ncost or expense payable under or resulting from a[n] . . .\n\nuninsured or underinsured motorist law, except to the extent\n\ncoverage is specifically provided by endorsement to this policy.\"\n\nId. § I.2.f.2.\n\n It is the certain impact of these policy terms in\n\nproviding no uninsured motorist coverage and, for good measure,\n\n\n - 5 -\n\fexpressly excluding it, that answers Kelly's arguments for looking\n\nbeyond the fact that the statute does not require a coverage\n\nrejection to be incorporated into the policy. If Plum Creek\n\nemployees, who are additional insureds, wish to assess the extent\n\nof their protection against an uninsured or underinsured driver\n\nunder the umbrella policy, all they have to do is read it. If\n\nthey have any reason to suspect some failure to satisfy the\n\nstatutory written rejection requirement, they can ask the named\n\ninsured or the insurer for a copy of the written instrument. While\n\nit is true that a state whose law does require the rejection to be\n\nmade part of the policy as such would save him the trouble, see\n\nRomero v. Dairyland Ins. Co., 803 P.2d 243, 244 (N.M. 1990), that\n\npossible convenience is a far cry from any statutory ambiguity or\n\na clear implication requiring judicial expansion of the plain\n\nstatutory text.\n\n In particular we see no such implication in the\n\nintegration clause, quoted above, providing that the policy states\n\nthe complete agreement of the insurer and named insured.\n\n\"Agreement\" is readily understood as referring to the substance or\n\ncontent of the parties' contract, and on the point at issue in\n\nthis case we have already seen that the policy incorporates the\n\nagreement that the policy provides no uninsured motorist coverage.\n\nIndeed, on a straightforward reading of the integration clause,\n\nthe \"policy's terms\" can be modified only by an \"endorsement issued\n\n\n - 6 -\n\fby [the insurer] and made a part of this policy.\" Umbrella Policy\n\n§ IV.15.\n\n Thus, Kelly's position must be seen as a request for\n\njudicial action to add to the statute an optional provision that\n\nthe legislature was satisfied to omit. New Hampshire law forbids\n\nthis. See Carlisle v. Frisbie Memorial Hosp., 888 A.2d 405, 416\n\n(N.H. 2005). The judgment is accordingly affirmed.\n\n\n\n\n - 7 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370543/", "author_raw": ""}]} | KAYATTA | SOUTER | SELYA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593290/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Brendan KELLY, Plaintiff, Appellant, v. LIBERTY INSURANCE CORPORATION, D/B/A Liberty Mutual, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 18-1614\n\n BRENDAN KELLY,\n\n Plaintiff, Appellant,\n\n v.\n\n LIBERTY INSURANCE CORPORATION,\n\n D/B/A LIBERTY MUTUAL,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF NEW HAMPSHIRE\n\n [Hon. Joseph N. Laplante, U.S. District Judge]\n\n\n Before\n\n Kayatta, Circuit Judge,\n Souter, Associate Justice,*\n and Selya, Circuit Judge.\n\n\n Robert A. Stein, with whom Diane L. Perin and The Stein Law\nFirm, PLLC, were on briefs, for appellant.\n Nancy D. Adams, with whom Lavinia M. Weizel and Mintz, Levin,\nCohn, Ferris, Glovsky and Popeo, P.C., were on brief, for appellee.\n\n\n February 22, 2019\n\n\n\n\n * Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f SOUTER, Associate Justice. In this diversity case,\n\nBrendan Kelly sought a declaratory judgment against Liberty Mutual\n\nInsurance Corporation, on his claim that Liberty was bound to\n\nprovide uninsured (or underinsured) motorist coverage for his\n\nbenefit. See N.H. RSA 259:117. The insurance contract in question\n\nwas an umbrella policy issued to Plum Creek Timber Company, Kelly's\n\nemployer and the named insured. The District Court granted summary\n\njudgment for Liberty Mutual. We affirm.\n\n The policy was issued in New Hampshire, whose law\n\ncontrols. Thus the insurer bears the burden of proof, N.H. RSA\n\n491:22-a, and policy language is to be construed as a reasonable\n\nperson would understand it upon more than a casual reading of the\n\npolicy as a whole, Russell v. NGM Ins. Co., 176 A.3d 196, 200 (N.H.\n\n2017).\n\n Liberty's policy was one of two issued to Plum Creek\n\nthat provided benefits to its employees as additional insureds\n\nwhen acting within the scope of employment, as Liberty recognizes\n\nthat Kelly was doing when injured in a two-party highway collision\n\nwhile driving a Plum Creek truck. Terms of the umbrella policy,\n\nlike those of the underlying basic policy, were regulated by RSA\n\n264:15, which included the following mandate relevant here:\n\n \"[U]mbrella or excess policies . . . shall\n also provide uninsured motorist coverage equal\n to the limits of liability purchased, unless\n the named insured rejects such coverage in\n writing. Rejection of such coverage by a\n\n\n - 2 -\n\f named insured shall constitute a rejection of\n coverage by all insureds . . . .\"\n\n There is no dispute that Plum Creek, the named insured,\n\ndid reject uninsured motorist coverage and did so in writing. The\n\nwriting itself, however, was not incorporated into the policy. It\n\nwas not attached to the other policy papers, nor was it mentioned\n\nin the text of the policy or in any incorporated attachment. It\n\nis this absence from the policy materials of an express mention of\n\nthe rejection that is the point on which Kelly's coverage claim\n\nturns: Kelly claims that the want of an explicit reference to\n\nPlum Creek's written rejection renders the rejection inoperative\n\nagainst an additional insured like Kelly, with the consequence\n\nthat RSA 264:15 requires provision of uninsured motorist coverage\n\nunder the statute's general rule.\n\n The apparently fatal flaw undermining this position is\n\nthe absence from RSA 264:15 of any requirement that the policy\n\nmaterials explicitly speak of the rejection of uninsured motorist\n\ncoverage. Rather, it is the requirement that the rejection be \"in\n\nwriting\" that ostensibly regulates the contractual relationship\n\nbetween the insurer and the named insured and, derivatively, an\n\nadditional insured. Thus, the apparent statutory objective is\n\nprotection against an act of rejection that is not well considered\n\nand a failure of the insurer to provide the coverage that the named\n\ninsured has reason to expect. See Angela Spradling, Hearing on SB\n\n\n\n - 3 -\n\f38 Before the S. Comm. on Commerce, Labor, and Consumer Protection\n\n(Comm. Print 2007) (statement of Sen. Lou D'Allesandro).\n\n Because the statute does not contain an explicit\n\nreference requirement, Kelly is left to argue that his position is\n\nimplicit in the statute, on the ground that its object is also to\n\nprotect additional insureds who need to know whether they should\n\nprocure insurance independently in order to obtain adequate\n\nprotection against uninsured motorists. But even assuming that\n\nthe statute implicitly protects additional insureds, the statute\n\ndoes not support Kelly's argument because the additional insureds\n\nare not left in the dark under this umbrella policy as it is. This\n\nis clear from three policy provisions that a reasonable and\n\nattentive reader would find:\n\n 1. \"This policy contains all the agreements\n between you and us concerning the insurance\n afforded. This policy's terms can be amended\n or waived only by endorsement issued by us and\n made a part of this policy.\" Umbrella Policy\n § IV.15.\n\n 2. \"We will pay those sums . . . that the\n insured becomes legally obligated to pay as\n damages because of: (1) 'Bodily injury'; (2)\n 'Property damage'; or (3) 'Personal and\n advertising injury'; to which this insurance\n applies.\" Id. § I.1.a.1\n\n\n 1 Though not on point here, this provision is elsewhere\nlimited. A different provision of the policy states: \"This\ninsurance does not apply to: . . . '[b]odily injury' or 'property\ndamage' arising out of the ownership, maintenance, use or\nentrustment to others . . . of any 'auto.'\" Umbrella Policy\n§§ I.2, I.2.f.1.\n\n\n - 4 -\n\f 3. \"This insurance does not apply to: . . .\n [a]ny loss, cost or expense payable under or\n resulting from a[n] . . . uninsured or\n underinsured motorist law, except to the\n extent coverage is specifically provided by\n endorsement to this policy.\" Id. §§ I.2,\n I.2.f.2.\n\n These provisions amount to a belt-and-suspenders\n\napproach to omission of uninsured motorist coverage in the Plum\n\nCreek policy. The integration clause (1) says clearly that there\n\nare no relevant agreements outside the policy. The statement of\n\nbasic coverage (2) describes the policy's scope as covering sums\n\nthat \"the insured becomes legally obligated to pay.\" Id. § I.1.a.\n\nThat is, it describes what insureds are liable to pay to someone\n\nelse for damage insureds caused or are responsible for, not what\n\ninsureds could claim as recompense for harm inflicted on them by\n\nsomeone else, which uninsured motorist coverage provides. We have\n\nbeen directed to no policy language that could be construed to\n\nprovide the latter. And finally, lest there be any doubt about it\n\nin the mind of the reasonable reader, the statement of exclusions\n\n(3) expressly indicates that the policy does not cover any \"loss,\n\ncost or expense payable under or resulting from a[n] . . .\n\nuninsured or underinsured motorist law, except to the extent\n\ncoverage is specifically provided by endorsement to this policy.\"\n\nId. § I.2.f.2.\n\n It is the certain impact of these policy terms in\n\nproviding no uninsured motorist coverage and, for good measure,\n\n\n - 5 -\n\fexpressly excluding it, that answers Kelly's arguments for looking\n\nbeyond the fact that the statute does not require a coverage\n\nrejection to be incorporated into the policy. If Plum Creek\n\nemployees, who are additional insureds, wish to assess the extent\n\nof their protection against an uninsured or underinsured driver\n\nunder the umbrella policy, all they have to do is read it. If\n\nthey have any reason to suspect some failure to satisfy the\n\nstatutory written rejection requirement, they can ask the named\n\ninsured or the insurer for a copy of the written instrument. While\n\nit is true that a state whose law does require the rejection to be\n\nmade part of the policy as such would save him the trouble, see\n\nRomero v. Dairyland Ins. Co., 803 P.2d 243, 244 (N.M. 1990), that\n\npossible convenience is a far cry from any statutory ambiguity or\n\na clear implication requiring judicial expansion of the plain\n\nstatutory text.\n\n In particular we see no such implication in the\n\nintegration clause, quoted above, providing that the policy states\n\nthe complete agreement of the insurer and named insured.\n\n\"Agreement\" is readily understood as referring to the substance or\n\ncontent of the parties' contract, and on the point at issue in\n\nthis case we have already seen that the policy incorporates the\n\nagreement that the policy provides no uninsured motorist coverage.\n\nIndeed, on a straightforward reading of the integration clause,\n\nthe \"policy's terms\" can be modified only by an \"endorsement issued\n\n\n - 6 -\n\fby [the insurer] and made a part of this policy.\" Umbrella Policy\n\n§ IV.15.\n\n Thus, Kelly's position must be seen as a request for\n\njudicial action to add to the statute an optional provision that\n\nthe legislature was satisfied to omit. New Hampshire law forbids\n\nthis. See Carlisle v. Frisbie Memorial Hosp., 888 A.2d 405, 416\n\n(N.H. 2005). The judgment is accordingly affirmed.\n\n\n\n\n - 7 -\n[END_CASE]",
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4,593,291 | Judith GRAY, Plaintiff, Appellant, v. Thomas A. CUMMINGS ; Town of Athol, Massachusetts, Defendants, Appellees. | Gray v. Cummings | 2019-02-22 | 18-1303P | U.S. Court of Appeals for the First Circuit | {"judges": "Kayatta, Souter, Selya", "parties": "", "opinions": [{"author": "Judge David L. Bazelon Center for Mental Health Law, amici curiae", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1303\n\n JUDITH GRAY,\n\n Plaintiff, Appellant,\n\n v.\n\n THOMAS A. CUMMINGS;\n TOWN OF ATHOL, MASSACHUSETTS,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Timothy S. Hillman, U.S. District Judge]\n [Hon. David H. Hennessy, U.S. Magistrate Judge]\n\n\n Before\n\n Kayatta, Circuit Judge,\n Souter, Associate Justice,\n and Selya, Circuit Judge.\n\n\n Matthew R. Segal, with whom Ruth A. Bourquin, American Civil\nLiberties Union Foundation of Massachusetts, Inc., Claudia Center,\nAmerican Civil Liberties Union Foundation, Richard L. Neumeier,\nand Morrison Mahoney LLP, were on brief, for appellant.\n David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer\nCutler Pickering Hale and Dorr LLP, Aaron M. Panner, Kellogg,\nHansen, Todd, Figel & Frederick, P.L.L.C., Nathalie F. P. Gilfoyle,\nDeanne M. Ottaviano, and Jennifer Mathis on brief for American\nPsychiatric Association, American Psychological Association, and\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the Supreme\nCourt of the United States, sitting by designation.\n\fJudge David L. Bazelon Center for Mental Health Law, amici curiae\n(in support of neither party).\n Thomas R. Donohue, with whom Deidre Brennan Regan, Leonard H.\nKesten, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief,\nfor appellees.\n Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello,\nand Petrini & Associates, P.C. on brief for International Municipal\nLawyers Association and Massachusetts Chiefs of Police\nAssociation, Inc., amici curiae (in support of affirmance).\n Pamela B. Petersen on brief for Axon Enterprise, Inc., amicus\ncuriae (in support of affirmance).\n\n\n February 22, 2019\n\f SELYA, Circuit Judge. This appeal arises at the\n\nintersection of constitutional law and disability-rights law. It\n\ntouches upon a plethora of important issues. Some of these issues\n\nrelate to the appropriateness of a police officer's use of a Taser\n\nin attempting to regain custody of a mentally ill person who, after\n\nbeing involuntarily committed, absconded from a hospital. Others\n\nrelate to the applicability vel non of Title II of the Americans\n\nwith Disabilities Act (ADA), 42 U.S.C. §§ 12131-65, to ad hoc\n\npolice encounters. In the end, we decide the case on the narrowest\n\navailable grounds and affirm the entry of summary judgment for the\n\ndefendants.\n\nI. BACKGROUND\n\n This case has its genesis in an on-the-street encounter\n\nbetween plaintiff-appellant Judith Gray (who suffers from bipolar\n\ndisorder) and Thomas Cummings, a police officer in Athol,\n\nMassachusetts (the Town). Because the case was decided below at\n\nthe summary judgment stage, we must take the facts in the light\n\nmost hospitable to the non-moving party (here, Gray), consistent\n\nwith record support. See Houlton Citizens' Coal. v. Town of\n\nHoulton, 175 F.3d 178, 184 (1st Cir. 1999). We caution, though,\n\nthat we are not obliged to credit \"conclusory allegations,\n\nimprobable inferences, acrimonious invective, or rank\n\nspeculation.\" Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).\n\n\n\n\n - 3 -\n\f Here, the raw facts are largely undisputed. In her\n\ndeposition, Gray testified that she \"really [didn't] know what\n\nhappened\" during the incident because she \"was in a full-blown\n\nmanic phase.\" She added that she \"wouldn't know Officer Cummings\n\nif [she] fell over him\" and that she had reviewed the police report\n\nprepared by Cummings and did not know whether or not it accurately\n\ndescribed the events that had transpired. Nor did she present any\n\nother evidence contradicting Cummings's version of the relevant\n\nevents. Although we recognize that juries have some leeway to\n\n\"reject uncontradicted, unimpeached testimony when it is\n\nimprobable, inherently contradictory, riddled with omissions, or\n\ndelivered in a manner giving rise to doubts,\" Quintana-Ruiz v.\n\nHyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002), that\n\nprinciple has no application here. Accordingly, we elicit many of\n\nthe facts from Cummings's account. See Harriman v. Hancock County,\n\n627 F.3d 22, 34 (1st Cir. 2010) (finding no material factual\n\ndispute when plaintiff \"had no memory of being beaten by anyone at\n\nanytime relevant to this case\"); see also Wertish v. Krueger, 433\n\nF.3d 1062, 1065 (8th Cir. 2006) (deeming police officer's version\n\nof events \"unrefuted\" when plaintiff testified that he had very\n\nlittle memory of relevant events). Even so, we draw all reasonable\n\ninferences from those facts in Gray's favor.\n\n On May 2, 2013, Gray — who was then fifty-seven years\n\nold — experienced a manic episode and called 911. Athol police\n\n\n - 4 -\n\fofficers arrived at Gray's home and transported her to Athol\n\nMemorial Hospital. She was admitted to the hospital at around\n\n4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, § 12 (authorizing\n\ninvoluntary \"[e]mergency restraint and hospitalization of persons\n\nposing risk of serious harm by reason of mental illness\").\n\nApproximately six hours later, Gray absconded from the hospital on\n\nfoot. Hospital staff called the Athol Police Department, asking\n\nthat Gray — \"a section 12 patient\" — be \"picked up and brought\n\nback.\"\n\n Cummings responded to the call and quickly located Gray,\n\nwalking barefoot along the sidewalk less than a quarter-mile from\n\nthe hospital. Cummings got out of his police cruiser. Gray swore\n\nat him, and Cummings told her that she \"ha[d] to go back to the\n\nhospital.\" Gray again used profanity, declared that she was not\n\ngoing back, and continued to walk away. In response, Cummings\n\nradioed for backup and followed Gray on foot. He repeatedly\n\nimplored Gray to return to the hospital, but his importunings were\n\ngreeted only by more profanity.\n\n Initially, Cummings followed Gray at a distance of\n\nroughly one hundred feet. Within twenty-five to thirty seconds,\n\nhe closed to within five feet. At that point, Gray stopped, turned\n\naround, \"clenched her fists, clenched her teeth, flexed her body\n\nand stared at [Cummings] as if she was looking right through\n\n[him].\" She again swore at Cummings and started walking toward\n\n\n - 5 -\n\fhim. Cummings grabbed Gray's shirt but he could feel Gray moving\n\nher body forward, so he \"took her to the ground.\" It is undisputed\n\nthat Cummings had a distinct height and weight advantage: he was\n\nsix feet, three inches tall and weighed 215 pounds, whereas Gray\n\nwas five feet, ten inches tall and weighed 140 pounds.\n\n Cummings testified that once on the ground, he\n\nrepeatedly instructed Gray to place her hands behind her back.\n\nShe did not comply. Instead, she \"tucked her arms underneath her\n\nchest and flex[ed] tightly,\" swearing all the while. Cummings\n\nwarned Gray that she was \"going to get ta[s]ed\" if she did not\n\nplace her hands behind her back.1 Gray did not heed this warning\n\nbut, rather, swore at Cummings again and told him to \"do it.\"\n\nCummings made \"one last final demand [for Gray] to stop resisting\"\n\nand when \"Gray refused to listen,\" he removed the cartridge from\n\nhis Taser, placed it in drive-stun mode,2 and tased Gray's back\n\nfor four to six seconds. Gray then allowed him to handcuff her.\n\n\n\n\n 1\n Gray testified she was told that she would be tased if she\nstood up. She also testified that at some point she was ordered\nto get to her knees, but that, due to prior injuries, she was\nunable to obey this order. Given Gray's repeated statements that\nshe could not recall the details of the encounter and that she\ncould not identify any factual inaccuracies in Cummings's police\nreport, we find these assertions insufficient to refute Cummings's\naccount. See Wertish, 433 F.3d at 1065.\n 2 Drive-stun mode is the least intrusive setting for a Taser:\n\nit delivers only a localized impact to the target. This contrasts\nwith probe-deployment mode, which disrupts the target's entire\nnervous system.\n\n\n - 6 -\n\f Cummings helped Gray to her feet and called an ambulance,\n\nwhich transported Gray to the hospital. According to Gray, she\n\nfelt \"pain all over\" at the moment she was tased, but she \"must\n\nhave passed out because [she] woke up in Emergency.\" Charges were\n\nsubsequently filed against Gray for assault on a police officer,\n\nresisting arrest, disturbing the peace, and disorderly conduct,\n\nbut were eventually dropped.\n\n In due season, Gray sued Cummings and the Town in the\n\nfederal district court. She invoked federal question\n\njurisdiction, see 28 U.S.C. § 1331, and asserted causes of action\n\nunder 42 U.S.C. § 1983 and Title II of the ADA, along with\n\nsupplemental state-law claims for assault and battery, malicious\n\nprosecution, and violations of the Massachusetts Civil Rights Act\n\n(MCRA), Mass. Gen. Laws ch. 12, §§ 11H-11I. After the completion\n\nof pretrial discovery, the defendants moved for summary judgment.\n\nSee Fed. R. Civ. P. 56(a). The district court referred the opposed\n\nmotion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.\n\nR. Civ. P. 72(b). Following a hearing, the magistrate judge issued\n\na report and recommendation, suggesting that the motion be granted.\n\nSpecifically, the magistrate judge found no violation of the Fourth\n\nAmendment under section 1983 on the part of either Cummings or the\n\nTown and no viable state-law claims. As to Cummings, the\n\nmagistrate judge added that, in any event, he was entitled to\n\nqualified immunity. The magistrate judge further concluded that\n\n\n - 7 -\n\fthere had been no abridgement of the ADA because, regardless of\n\nGray's disability, Cummings was entitled to employ an \"appropriate\n\nlevel of force in response to an ongoing threat.\"\n\n Gray objected to the magistrate judge's report and\n\nrecommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.\n\n72(b). On de novo review, see Mercy Hosp., Inc. v. Mass. Nurses\n\nAss'n, 429 F.3d 338, 343 (1st Cir. 2005), the district court\n\nentered a two-sentence text order adopting the magistrate judge's\n\nreport and recommendation in substantial part. Because the court\n\nagreed that Cummings was entitled to qualified immunity, it\n\ndeclined to express any opinion on the magistrate judge's\n\ndetermination that \"Cummings employed reasonable force under all\n\nof the circumstances.\"\n\n This timely appeal followed. In addition to the parties'\n\nbriefs and oral argument, we have had the benefit of able briefing\n\nby several amici.\n\nII. ANALYSIS\n\n We review an order granting summary judgment de novo.\n\nSee Houlten Citizens' Coal., 175 F.3d at 184. \"We will affirm\n\nonly if the record reveals 'that there is no genuine dispute as to\n\nany material fact and the movant is entitled to judgment as a\n\nmatter of law.'\" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.\n\n2011) (quoting Fed. R. Civ. P. 56(a)). Against this backdrop, we\n\nproceed to Gray's claims.\n\n\n - 8 -\n\f A. The Section 1983 Claims.\n\n Section 1983 supplies a private right of action against\n\na person who, under color of state law, deprives another of \"any\n\nrights, privileges, or immunities secured by the Constitution and\n\n[federal] laws.\" 42 U.S.C. § 1983. To maintain a cause of action\n\nunder section 1983, \"the plaintiff must show a deprivation of a\n\nfederally secured right.\" Harrington v. City of Nashua, 610 F.3d\n\n24, 28 (1st Cir. 2010). Gray has advanced separate section 1983\n\nclaims against Cummings and the Town. We address these claims\n\nsequentially.\n\n 1. Cummings. Gray's section 1983 claim against Cummings\n\nis premised on the notion that Cummings used excessive force in\n\neffecting her arrest and, thus, violated her Fourth Amendment\n\nrights. To prevail on such a claim, \"a plaintiff must show that\n\nthe defendant employed force that was unreasonable under all the\n\ncircumstances.\" Morelli v. Webster, 552 F.3d 12, 23 (1st Cir.\n\n2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The\n\ndegree of force to be used in any given situation is most often a\n\njudgment call, which sometimes must be made in a split second by\n\na police officer confronted with rapidly evolving circumstances.\n\nDetermining whether a particular use of force is reasonable\n\nrequires consideration of the totality of the circumstances. See\n\nGraham, 490 U.S. at 396. This consideration entails the weighing\n\nof a myriad of factors such as \"the severity of the crime at issue,\n\n\n - 9 -\n\fwhether the suspect pose[d] an immediate threat to the safety of\n\nthe officers or others, and whether [the suspect was] actively\n\nresisting arrest or attempting to evade arrest by flight.\" Id.\n\n Our starting point is the question of whether a\n\nreasonable jury could find that Cummings violated Gray's Fourth\n\nAmendment rights through the use of excessive force. The\n\nmagistrate judge answered this question in the negative,\n\nconcluding that, as a matter of law, \"the single deployment of a\n\ntaser in drive stun mode\" in these particular circumstances was\n\nreasonable. Viewing the record most hospitably to Gray and drawing\n\nall reasonable inferences to her behoof, we think that a reasonable\n\njury could find that the force employed by Cummings violated the\n\nFourth Amendment. We explain briefly.\n\n The Town's policies describe a Taser in drive-stun mode\n\nas a \"pain compliance tool.\"3 Thus, the question reduces to whether\n\nthe circumstances surrounding the confrontation between Gray and\n\nCummings, interpreted in the light most favorable to Gray,\n\njustified Cummings's use of such a tool.\n\n The magistrate judge analyzed this question in\n\naccordance with the Graham factors. In his view, the first factor\n\n— \"the severity of the crime at issue,\" id. — favored Cummings\n\n\n 3 This description is consistent with the descriptions found\nin the case law. See, e.g., Crowell v. Kirkpatrick, 400 F. App'x\n592, 595 (2d Cir. 2010) (explaining that drive-stun mode \"typically\ncauses temporary, if significant, pain and no permanent injury\").\n\n\n - 10 -\n\fbecause \"Ms. Gray assaulted [him].\" At summary judgment, though,\n\nthis assessment is insupportable: it fails to view the facts in\n\nthe light most favorable to Gray.\n\n In this regard, we think it important that Cummings was\n\nnot called to the scene to investigate a crime; he was there to\n\nreturn a person suffering from mental illness to the hospital.\n\nWhen the subject of a seizure has not committed any crime, the\n\nfirst Graham factor ordinarily cuts in the subject's favor. See\n\nEstate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810\n\nF.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not submit to\n\nCummings's orders. Withal, this failure to obey was at most a\n\nminor crime, not one that would tip the first Graham factor in\n\nCummings's favor. See id. at 899-900.\n\n Nor does the alleged assault tilt the scales. In\n\nCummings's view, the assault occurred when, after Gray walked\n\ntoward him, he grabbed her shirt and she \"continued pushing against\n\n[his] arm.\" In the circumstances of this case, we think that a\n\nreasonable jury could find that the facts did not support the\n\ncharacterization of Gray's actions as an \"assault.\"\n\n The same kind of defect mars the magistrate judge's\n\ndetermination that the second Graham factor — \"whether the suspect\n\nposes an immediate threat to the safety of the officers or others,\"\n\n490 U.S. at 396 — favored Cummings. It is true that Gray was a\n\nsection 12 patient, that is, an individual who has been\n\n\n - 11 -\n\finvoluntarily committed to a hospital pursuant to Mass. Gen. Laws\n\nch. 123, § 12, based on a determination by a qualified medical\n\nprofessional (or, in emergency situations, a police officer) that\n\n\"failure to hospitalize [her] would create a likelihood of serious\n\nharm by reason of mental illness.\" Id. § 12(a). It is also true\n\nthat Cummings knew as much. Although a jury could supportably\n\nfind on these facts that Cummings reasonably believed that Gray\n\nposed a danger to him, it could supportably find instead that Gray\n\n— who was shuffling down the sidewalk barefoot and unarmed — only\n\nposed a danger to herself (especially given Cummings's distinct\n\nheight and weight advantage). So, too, a jury could supportably\n\nfind that, at the time of the tasing, Gray had been subdued to a\n\npoint at which she no longer posed a threat.\n\n The magistrate judge concluded that the final Graham\n\nfactor — whether Gray was \"actively resisting arrest,\" 490 U.S. at\n\n396 — favored Cummings. This conclusion seems unimpugnable given\n\nCummings's testimony that he asked Gray several times to put her\n\nhands behind her back, but that she would not do so.\n\n The short of it is that the Graham factors point in\n\nconflicting directions. Seen through the prism of the totality of\n\nthe circumstances, the evidence is subject to interpretation and\n\ncan support plausible though inconsistent inferences. Drawing\n\nthose inferences beneficially to Gray and aware that Cummings not\n\nonly had her down on the ground but also outweighed her by some\n\n\n - 12 -\n\fseventy-five pounds, a reasonable jury could find that Gray had\n\ncommitted no crime and that she posed no threat to Cummings when\n\nhe tased her. When all is said and done, we think that Gray has\n\npresented sufficient evidence to make out a jury question as to\n\nwhether Cummings used excessive force. See, e.g., Morelli, 552\n\nF.3d at 23 (finding triable excessive force claim when officer\n\nslammed plaintiff, who \"at worst, was suspected of being a petty\n\nthief,\" against wall); Alexis v. McDonald's Rests. of Mass., Inc.,\n\n67 F.3d 341, 353 (1st Cir. 1995) (concluding that jury could find\n\nexcessive force when officer seized and dragged plaintiff to\n\neffectuate arrest for crime of trespassing in public restaurant);\n\nsee also Estate of Armstrong, 810 F.3d at 906 (finding excessive\n\nforce when officer tased \"mentally ill man being seized for his\n\nown protection, [who] was seated on the ground, was hugging a post\n\nto ensure his immobility, . . . and had failed to submit to a\n\nlawful seizure for only 30 seconds\").\n\n This conclusion does not end our inquiry. Cummings has\n\ninvoked the defense of qualified immunity. Qualified immunity is\n\na doctrine aimed at providing government officials (including\n\npolice officers) a modicum of protection from civil damages\n\nliability for actions taken under color of state law. See Harlow\n\nv. Fitzgerald, 457 U.S. 800, 818 (1982); McKenney v. Mangino, 873\n\nF.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018).\n\nThis protection attaches \"to all but the plainly incompetent or\n\n\n - 13 -\n\fthose who knowingly violate the law.\" Malley v. Briggs, 475 U.S.\n\n335, 341 (1986). Thus, a government official may invoke the\n\ndefense of qualified immunity when his actions, though causing\n\ninjury, did \"not violate clearly established statutory or\n\nconstitutional rights of which a reasonable person would have\n\nknown.\" Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)\n\n(quoting Harlow, 457 U.S. at 818).\n\n The qualified immunity analysis has two facets: \"[t]he\n\ncourt must determine whether the defendant violated the\n\nplaintiff's constitutional rights\" and then must determine\n\n\"whether the allegedly abridged right was 'clearly established' at\n\nthe time of the defendant's claimed misconduct.\" Id. at 155\n\n(quoting McKenney, 873 F.3d at 81). In this instance, we already\n\nhave decided that a jury could find that Cummings violated Gray's\n\nFourth Amendment rights. We must now determine whether the alleged\n\nright was clearly established at the time of Cummings's violation.\n\nSee id. Specifically, we must ask whether, given the circumstances\n\nat hand, Gray's right to be free from the degree of force that\n\nCummings used — particularly, the Taser — was clearly established.\n\n This question, too, has two facets. First, the plaintiff\n\nmust \"identify either 'controlling authority' or a 'consensus of\n\ncases of persuasive authority' sufficient to send a clear signal\n\nto a reasonable official that certain conduct falls short of the\n\nconstitutional norm.\" Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir.\n\n\n - 14 -\n\f2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Second,\n\nthe plaintiff must demonstrate that \"an objectively reasonable\n\nofficial in the defendant's position would have known that his\n\nconduct violated that rule of law.\" Id. This latter step is\n\ndesigned to achieve a prophylactic purpose: it affords \"some\n\nbreathing room for a police officer even if he has made a mistake\n\n(albeit a reasonable one) about the lawfulness of his conduct.\"\n\nConlogue, 906 F.3d at 155. Taken together, these steps normally\n\nrequire that, to defeat a police officer's qualified immunity\n\ndefense, a plaintiff must \"identify a case where an officer acting\n\nunder similar circumstances was held to have violated the Fourth\n\nAmendment.\" City of Escondido v. Emmons, 139 S. Ct. 500, 504\n\n(2019) (per curiam) (quoting District of Columbia v. Wesby, 138 S.\n\nCt. 577, 590 (2018)); see Anderson v. Creighton, 483 U.S. 635,\n\n639-40 (1987). Although such a case need not arise on identical\n\nfacts, it must be sufficiently analogous to make pellucid to an\n\nobjectively reasonable officer the unlawfulness of his actions.4\n\nSee City of Escondido, 139 S. Ct. at 504; Ashcroft v. al-Kidd, 563\n\nU.S. 731, 741 (2011).\n\n\n\n\n 4 Sometimes, however, this requirement is relaxed. In\ncircumstances in which a violation of rights is apparent, a\nplaintiff may thwart a qualified immunity defense simply by\ndemonstrating that \"the unlawfulness of the officer's conduct is\nsufficiently clear even though existing precedent does not address\nsimilar circumstances.\" City of Escondido, 139 S. Ct. at 504\n(quoting Wesby, 138 S. Ct. at 590). This is not such a case.\n\n\n - 15 -\n\f The district court determined that \"the right not to be\n\ntased while offering non-violent stationary, resistance to a\n\nlawful seizure was not clearly established at the time of the\n\nconfrontation between Ms. Gray and Officer Cummings\" and,\n\ntherefore, ruled that Cummings was entitled to qualified immunity.\n\nWe examine the foundation on which this ruling rests.\n\n We begin with Estate of Armstrong, in which the Fourth\n\nCircuit conducted a similar qualified immunity analysis.\n\nSpecifically, the court considered whether the \"right not to be\n\nsubjected to tasing while offering stationary and non-violent\n\nresistance to a lawful seizure\" was clearly established. 810 F.3d\n\nat 907. Armstrong, who suffered from bipolar disorder and paranoid\n\nschizophrenia, had absconded from the hospital to which he had\n\nbeen committed. See id. at 896. The police were called and\n\nlocated Armstrong near the hospital's main entrance. See id.\n\nThree police officers approached Armstrong, who responded by\n\n\"wrapping himself around a four-by-four post that was supporting\n\na nearby stop sign.\" Id. The officers attempted to pry\n\nArmstrong's arms and legs loose but were unsuccessful. See id.\n\nOne of the officers then warned Armstrong that he would be tased\n\nif he did not let go of the post. See id. at 897. Armstrong did\n\nnot comply, and the officer proceeded to tase him five times in\n\ndrive-stun mode, over a span of approximately two minutes. See\n\nid. Even though Armstrong continued resisting, he was pried loose\n\n\n - 16 -\n\ffrom the post. See id. A struggle ensued, resulting in\n\nArmstrong's demise. See id. at 897-98.\n\n Although the court found that a jury could find the\n\nofficers had used excessive force, see id. at 906, it nonetheless\n\naffirmed summary judgment in favor of the defendants. The court\n\nreasoned that even though its finding that the officers had\n\nviolated Armstrong's Fourth Amendment rights was supported by\n\nprecedent, the law \"was not so settled [as of April 2011] such\n\nthat 'every reasonable official would have understood that' tasing\n\nArmstrong was unconstitutional\" under the circumstances. Id. at\n\n908 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per\n\ncuriam)).5\n\n The Fourth Circuit's conclusion in Estate of Armstrong\n\n— that the use of a Taser in drive-stun mode against a noncompliant\n\nand resisting individual was not clearly unconstitutional as of\n\n2011 — is not an outlier. Prior to Cummings's encounter with Gray,\n\nseveral other courts of appeals had found the use of a Taser\n\nreasonable in situations involving subjects who acted with a level\n\nof resistance analogous to that displayed by Gray. See, e.g.,\n\nHagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 507 (6th\n\nCir. 2012) (granting qualified immunity for use of Taser in drive-\n\n\n\n\n 5\n We note that Estate of Armstrong was decided in 2016 and,\nthus, Cummings did not have the benefit of the Fourth Circuit's\ndecision at the time of the incident sub judice.\n\n\n - 17 -\n\fstun mode in 2007 when plaintiff \"refused to be handcuffed,\" \"lay\n\ndown on the pavement and locked his arms tightly under his body,\n\nkicking his feet and continuing to scream\"); Draper v. Reynolds,\n\n369 F.3d 1270, 1278 (11th Cir. 2004) (finding single use of Taser\n\nin 2001 reasonable when plaintiff \"used profanity, moved around\n\nand paced in agitation,\" and \"repeatedly refused to comply with\n\n[the officer]'s verbal commands\" during traffic stop). Thus, an\n\nobjectively reasonable officer in Cummings's place and stead could\n\nreasonably have believed, in 2013, that the use of a Taser was\n\ngenerally permissible when a subject refuses to be handcuffed.\n\n Even so, the level of force that is constitutionally\n\npermissible in dealing with a mentally ill person \"differs both in\n\ndegree and in kind from the use of force that would be justified\n\nagainst a person who has committed a crime or who poses a threat\n\nto the community.\" Bryan v. MacPherson, 630 F.3d 805, 829 (9th\n\nCir. 2010). Consequently, a subject's mental illness is a factor\n\nthat a police officer must take into account in determining what\n\ndegree of force, if any, is appropriate. See Estate of Armstrong,\n\n810 F.3d at 900; Champion v. Outlook Nashville, Inc., 380 F.3d\n\n893, 904 (6th Cir. 2004). Here, however, the only thing that\n\nCummings knew about Gray's mental health was that she had been\n\ninvoluntarily committed under section 12; he did not know whether\n\nGray had been deemed a danger to others or only to herself. Given\n\nthe skimpiness of this information, we think that an objectively\n\n\n - 18 -\n\freasonable police officer, standing in Cummings's shoes, would\n\nhave had to be prepared for the worst.\n\n Based on the body of available case law, we hold that an\n\nobjectively reasonable police officer in May of 2013 could have\n\nconcluded that a single use of the Taser in drive-stun mode to\n\nquell a nonviolent, mentally ill individual who was resisting\n\narrest, did not violate the Fourth Amendment. Even if such a\n\nconclusion was constitutionally mistaken — as a jury could find on\n\nthe facts of this case — Cummings is shielded by qualified\n\nimmunity.\n\n Gray demurs. She identifies two of our precedents and\n\nposits that — whether viewed singly or in combination — they evince\n\nthe clearly established nature of her right to be free from tasing.\n\nBoth precedents are inapposite.\n\n The case on which Gray relies most heavily is Parker v.\n\nGerrish, 547 F.3d 1 (1st Cir. 2008). There, the plaintiff had\n\nbeen stopped on suspicion of driving while intoxicated. After the\n\nplaintiff failed several sobriety tests, the officer tried to\n\narrest him. See id. at 3-4. When the plaintiff resisted, the\n\nofficer drew his Taser and ordered the plaintiff to turn around\n\nand place his hands behind his back. See id. at 4. The plaintiff\n\ncomplied but clasped his right wrist with his left hand. See id.\n\nAnother officer approached and cuffed the plaintiff's left wrist.\n\nSee id. There was substantial dispute about what happened next,\n\n\n - 19 -\n\fbut according to the plaintiff's account (to which the court was\n\nrequired to defer in the posture of the case), he released his\n\nright wrist, yet was tased anyway. See id. at 4-5. On these\n\nfacts, we held that the police officer could be found to have\n\nviolated the Fourth Amendment by tasing an unarmed suspect who, in\n\nthe course of an arrest, \"present[ed] no significant 'active\n\nresistance' or threat\"6 at the time of the tasing. Id. at 10-11.\n\n The case at hand is a horse of a quite different hue.\n\nThere is no indication here that Gray, despite ample opportunity\n\nto do so, ever complied with Cummings's command to put her hands\n\nbehind her back. Even when Cummings warned her that she would be\n\ntased, she did not comply but, rather, continued cursing and told\n\nhim to \"do it.\"\n\n The second case upon which Gray relies is Ciolino v.\n\nGikas, 861 F.3d 296 (1st Cir. 2017), which involved events\n\noccurring in 2013. There, a police officer grabbed the plaintiff\n\nin a crowded street and forced him to the ground without giving\n\nhim any warning. See id. at 299-300. We held that the jury could\n\nfind that although the plaintiff had \"disobeyed a police order,\"\n\nhe \"was not given a chance to submit peacefully to arrest before\n\nsignificant force was used to subdue him\" and, therefore, \"an\n\n\n\n\n 6 We had no occasion in Parker to mull the implications of a\nqualified immunity defense. There, the officer waived any such\ndefense. See 547 F.3d at 13.\n\n\n - 20 -\n\f'objectively reasonable police officer' would have taken a more\n\nmeasured approach.\" Id. at 304 (quoting Raiche v. Pietroski, 623\n\nF.3d 30, 39 (1st Cir. 2010)).\n\n Once again, the case at hand is readily distinguishable.\n\nCummings repeatedly told Gray that she needed to return to the\n\nhospital, and she adamantly refused to obey. What is more, he\n\nwarned her that he would use his Taser if she remained\n\nintransigent, yet she defied the warning. Thus — unlike the\n\nplaintiff in Ciolino — Gray was afforded an adequate opportunity\n\nto submit to Cummings's authority before she was tased.\n\n Gray cites a number of other cases in support of her\n\nargument that her resistance was \"passive\" rather than \"active\"\n\nand, thus, did not justify the use of the Taser. This argument is\n\ndeeply flawed. Labels such as \"passive\" and \"active\" are\n\ngeneralizations and cannot serve as substitutes for a careful\n\nanalysis of the facts of a particular case. In point of fact, the\n\nSupreme Court — in an excessive force case — recently cautioned\n\nagainst \"defin[ing] the clearly established right at a high level\n\nof generality.\" City of Escondido, 139 S. Ct. at 503. There, the\n\nCourt reversed a denial of qualified immunity sought by an officer\n\nwho had tackled a man after he had closed the door to a dwelling\n\ndespite being instructed not to do so and \"tried to brush past\"\n\nthe officer. Id. at 502. The Court criticized the Ninth Circuit\n\nfor relying on \"case law [that] involved police force against\n\n\n - 21 -\n\findividuals engaged in passive resistance\" without making any\n\n\"effort to explain how that case law prohibited [the officer]'s\n\nactions in this case.\" Id. at 503-04 (emphasis in original). And\n\nin all events, respectable authority suggests that refusing to be\n\nhandcuffed constitutes active resistance and may justify the use\n\nof a Taser. See Hagans, 695 F.3d at 509 (collecting cases).\n\n We add, moreover, that several of the cases cited by\n\nGray involve deployment of a Taser subsequent to an initial Taser\n\nshock. See, e.g., Meyers v. Baltimore County, 713 F.3d 723, 733-\n\n34 (4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 F.3d 856, 859-\n\n63 (7th Cir. 2010). Nothing of that sort happened here.7\n\n In the last analysis, Gray does not cite any case,\n\ndecided before her encounter with Cummings, that arose out of the\n\nuse of a Taser on facts fairly comparable to the facts at hand.\n\nIn the absence of either controlling authority or a consensus of\n\n\n\n\n 7 In furtherance of her argument that an objectively\nreasonable officer standing in Cummings's shoes would have known\nthat the degree of force used was unreasonable, Gray argues in her\nreply brief that the Town has a policy against tasing someone\n\"known to be suffering from severe mental illness.\" This argument\nis doubly waived: first, it was not advanced in the district\ncourt, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st\nCir. 1991) (\"It is hornbook law that theories not raised squarely\nin the district court cannot be surfaced for the first time on\nappeal.\"); and second, it was not advanced in Gray's opening brief\nin this court, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86\n(1st Cir. 1990) (\"[B]ecause the argument . . . surfac[ed] only in\n[appellant's] reply brief, it has been waived.\").\n\n\n - 22 -\n\fpersuasive authority to the contrary, we conclude that Cummings\n\nwas entitled to qualified immunity.\n\n As a fallback, Gray argues that the doctrine of qualified\n\nimmunity, as expounded by the Supreme Court, should be modified or\n\noverruled. Gray did not raise this argument in the district court\n\nand, thus, cannot advance it here. See Teamsters Union, Local No.\n\n59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (\"If\n\nany principle is settled in this circuit, it is that, absent the\n\nmost extraordinary circumstances, legal theories not raised\n\nsquarely in the lower court cannot be broached for the first time\n\non appeal.\").\n\n 2. Town of Athol. In addition to her section 1983 claim\n\nagainst Cummings, Gray makes a section 1983 failure-to-train claim\n\nagainst the Town. She alleges that her Fourth Amendment rights\n\nwere violated by the Town's deficient training of its police\n\nofficers (including Cummings) with respect to proper protocols for\n\ninteracting with persons suffering from mental illness. Gray's\n\nevidence, though, falls well short of making out a failure-to-\n\ntrain claim against the Town.\n\n We cut directly to the chase. \"Triggering municipal\n\nliability on a claim of failure to train requires a showing that\n\nmunicipal decisionmakers either knew or should have known that\n\ntraining was inadequate but nonetheless exhibited deliberate\n\nindifference to the unconstitutional effects of those\n\n\n - 23 -\n\finadequacies.\" Haley v. City of Boston, 657 F.3d 39, 52 (1st Cir.\n\n2011). A plaintiff typically must show a \"pattern of similar\n\nconstitutional violations by untrained employees . . . to\n\ndemonstrate deliberate indifference for purposes of failure to\n\ntrain.\" Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bd.\n\nof Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).\n\nHere, however, Gray has made no such showing.\n\n In an effort to close this gap, Gray offers expert\n\ntestimony about appropriate police practices for interacting with\n\npersons with disabilities. Building on this foundation, she\n\ninsists that \"coupled with the facts of the encounter,\" such\n\nevidence \"create[s] questions of material fact as to whether the\n\nTown failed to properly train Cummings.\" In our view, these\n\nassertions are insufficient to support a failure-to-train claim.\n\nIt is not enough to show that the Town's training regimen was\n\nfaulty; Gray must also show that the Town knew or had reason to\n\nbelieve that such a regimen had unconstitutional effects. Gray\n\nhas tendered no evidence of past violations sufficient to put the\n\nTown on notice of such effects. Given this yawning gap in her\n\nproof, Gray has not made out a genuine issue of material fact as\n\nto whether the Town was deliberately indifferent to the risk of\n\nthe alleged constitutional violation. Consequently, her failure-\n\nto-train claim founders. See id. at 72; Hill v. Walsh, 884 F.3d\n\n16, 24 (1st Cir. 2018).\n\n\n - 24 -\n\f B. The State-Law Claims.\n\n Gray's supplemental state-law claims need not detain us.\n\nGray concedes that the assault and battery and MCRA claims \"rise\n\nand fall with . . . [her] § 1983 claim.\" This concession, coupled\n\nwith Gray's failure to offer any developed argumentation with\n\nrespect to these claims, ends our inquiry. See Torres-Arroyo v.\n\nRullán, 436 F.3d 1, 7 (1st Cir. 2006) (\"Gauzy generalizations are\n\nmanifestly insufficient to preserve an issue for appellate\n\nreview.\"). We deem waived any claim of error related to the\n\ndisposition of Gray's assault and battery and MCRA claims.\n\n The magistrate judge also granted summary judgment on\n\nGray's malicious prosecution claim. On appeal, Gray does not\n\nchallenge this ruling. Consequently, we deem the malicious\n\nprosecution claim abandoned. See United States v. Zannino, 895\n\nF.2d 1, 17 (1st Cir. 1990) (explaining that \"issues adverted to in\n\na perfunctory manner, unaccompanied by some effort at developed\n\nargumentation, are deemed waived\").\n\n C. The ADA Claim.\n\n There is one last hill to climb: Gray's claim against\n\nthe Town under the ADA. Some background is helpful.\n\n Congress enacted the ADA \"to provide a clear and\n\ncomprehensive national mandate for the elimination of\n\ndiscrimination against individuals with disabilities.\" 42 U.S.C.\n\n§ 12101(b)(1). Title I proscribes disability-related\n\n\n - 25 -\n\fdiscrimination in employment, see id. § 12112, and Title III\n\nproscribes disability-related discrimination in the provision of\n\npublic accommodations (such as hotels, restaurants, and theaters),\n\nsee id. §§ 12182, 12184. Neither of these titles is implicated\n\nhere.\n\n Title II broadly provides that \"no qualified individual\n\nwith a disability shall, by reason of such disability, be excluded\n\nfrom participation in or be denied the benefits of the services,\n\nprograms, or activities of a public entity, or be subjected to\n\ndiscrimination by any such entity.\" Id. § 12132. Gray's ADA claim\n\nagainst the Town is rooted in this Title.\n\n To establish a violation of Title II, a plaintiff must\n\nshow:\n\n (1) that [s]he is a qualified individual with\n a disability; (2) that [s]he was either\n excluded from participation in or denied the\n benefits of some public entity's services,\n programs, or activities or was otherwise\n discriminated against; and (3) that such\n exclusion, denial of benefits, or\n discrimination was by reason of the\n plaintiff's disability.\n\nBuchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting\n\nParker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.\n\n2000)). A \"qualified individual with a disability\" is\n\n an individual with a disability who, with or\n without reasonable modifications to rules,\n policies, or practices, the removal of\n architectural, communication, or\n transportation barriers, or the provision of\n\n\n - 26 -\n\f auxiliary aids and services, meets the\n essential eligibility requirements for the\n receipt of services or the participation in\n programs or activities provided by a public\n entity.\n\n42 U.S.C. § 12131(2). In turn, the term \"public entity\" includes\n\n\"any State or local government\" as well as \"any department, agency,\n\nspecial purpose district, or other instrumentality of a State or\n\nStates or local government.\" Id. § 12131(1).\n\n The Town does not gainsay either that Gray is a qualified\n\nperson with a disability or that the Town is a public entity.\n\nThus, the focal point of our inquiry is whether, during Gray's\n\nencounter with Cummings, she was \"denied the benefits of [the\n\nTown's] services, programs, or activities or was otherwise\n\ndiscriminated against . . . by reason of [her] disability.\"\n\nBuchanan, 469 F.3d at 170-71.\n\n Courts have identified two general theories describing\n\nways in which a police officer may violate the ADA in executing an\n\narrest. The first such theory (which we shall call the \"effects\"\n\ntheory) holds that a violation may be found when \"police wrongly\n\narrested someone with a disability because they misperceived the\n\neffects of that disability as criminal activity.\" Gohier v.\n\nEnright, 186 F.3d 1216, 1220 (10th Cir. 1999). The second such\n\ntheory (which we shall call the \"accommodation\" theory) holds that\n\na violation may be found when police officers \"properly\n\ninvestigated and arrested a person with a disability for a crime\n\n\n - 27 -\n\funrelated to that disability, [but] they failed to reasonably\n\naccommodate the person's disability in the course of investigation\n\nor arrest, causing the person to suffer greater injury or indignity\n\nin that process than other arrestees.\" Id. at 1220-21. Before\n\nus, Gray advances arguments under both theories.8 With respect to\n\nthe \"effects\" theory, Gray argues that the criminal charges filed\n\nagainst her are an indication that Cummings misperceived her\n\nfailure to follow his commands as a crime rather than a symptom of\n\nher disability. With respect to the \"accommodation\" theory, Gray\n\nargues that Cummings should have accommodated her disability by\n\n\"employ[ing] . . . time, patience, nonthreatening communication,\n\nmonitoring from a distance, and contacting and waiting for\n\nassistance such as an ambulance or a mental health care\n\nprofessional.\"\n\n In mounting our inquiry, we start with the\n\nuncontroversial premise that the services, programs, and\n\nactivities of a municipal police department are generally subject\n\nto the provisions of Title II of the ADA. See, e.g., Haberle v.\n\n\n\n\n 8 The magistrate judge concluded that \"Gray's complaint very\nclearly proceeds solely on the basis of the second theory of\nliability — that is, an alleged failure to reasonably accommodate.\"\nThis conclusion seems to overlook the allegation in Gray's amended\ncomplaint that the Town \"brought criminal charges against [Gray]\nwithout taking her mental illness into account.\" Even so, any\nerror was harmless: the magistrate judge prudently considered the\nmerits of Gray's arguments under both the \"effects\" theory and the\n\"accommodation\" theory.\n\n\n - 28 -\n\fTroxel, 885 F.3d 170, 179-80 (3d Cir. 2018); Gorman v. Bartch, 152\n\nF.3d 907, 912 (8th Cir. 1998). Yet, three questions loom that are\n\nmatters of first impression in this circuit:\n\n Does Title II apply to ad hoc police encounters\n\n with members of the public during investigations\n\n and arrests, and if so, to what extent?\n\n Assuming that Title II applies to the encounter\n\n that occurred here, may a public entity be held\n\n liable under Title II for a line employee's actions9\n\n on a theory of respondeat superior?\n\n Is proof of a defendant's deliberate indifference\n\n (as opposed to discriminatory animus) sufficient to\n\n support a plaintiff's claim for damages under Title\n\n II?\n\nWe are reluctant to plunge headlong into these murky waters. As\n\nwe explain below, the answers to these questions are less than\n\ncertain, and adjudicating Gray's ADA claim against the Town does\n\nnot require us to run this gauntlet.\n\n The first question asks whether and to what extent Title\n\nII of the ADA applies to ad hoc police encounters. The Fifth\n\nCircuit has held that \"Title II does not apply to an officer's on-\n\nthe-street responses to reported disturbances or other similar\n\n\n 9 We use the term \"line employee\" to describe an employee who\nis not involved in policymaking.\n\n\n - 29 -\n\fincidents, whether or not those calls involve subjects with mental\n\ndisabilities, prior to the officer's securing the scene and\n\nensuring that there is no threat to human life.\" Hainze v.\n\nRichards, 207 F.3d 795, 801 (5th Cir. 2000). Other circuits,\n\nthough, have charted a different course, holding that Title II\n\napplies without exception to ad hoc police encounters. See, e.g.,\n\nHaberle, 885 F.3d at 180 (concluding that \"police officers may\n\nviolate the ADA when making an arrest by failing to provide\n\nreasonable accommodations for a qualified arrestee's disability\");\n\nBircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)\n\n(explaining that \"Title II prohibits discrimination by a public\n\nentity by reason of [plaintiff]'s disability\" during\n\ninvestigations and arrests); see also Gohier, 186 F.3d at 1221\n\n(stating that \"a broad rule categorically excluding arrests from\n\nthe scope of Title II . . . is not the law\"). Under this approach,\n\nexigent circumstances attendant to a police officer's decisions\n\nduring an ad hoc encounter simply weigh in the balance when\n\nevaluating the reasonableness of a prospective ADA accommodation.\n\nSee Haberle, 885 F.3d at 181 n.11; Bircoll, 480 F.3d at 1085-86.10\n\n\n 10 The Ninth Circuit reached the same conclusion in Sheehan\nv. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir.\n2014). The Supreme Court granted certiorari in Sheehan in order\nto resolve whether Title II of the ADA \"requires law enforcement\nofficers to provide accommodations to an armed, violent, and\nmentally ill suspect in the course of bringing the suspect into\ncustody.\" City & County of San Francisco v. Sheehan, 135 S. Ct.\n1765, 1772 (2015). The Court later concluded that certiorari on\n\n\n - 30 -\n\fWhile no circuit has found Title II of the ADA wholly inapplicable\n\nto ad hoc police encounters, the differences in approach indicate\n\nto us that we should tread cautiously. For present purposes, it\n\nis sufficient for us to assume, favorably to Gray, that Title II\n\nof the ADA applies to ad hoc police encounters (such as the\n\nencounter here) and that exigent circumstances may shed light on\n\nthe reasonableness of an officer's actions.\n\n The second question asks whether a public entity can be\n\nvicariously liable for money damages under Title II of the ADA\n\nbased on the conduct of a line employee. This question arises\n\nbecause, in Gebser v. Lago Vista Independent School District, 524\n\nU.S. 274 (1998), the Supreme Court held that a school district\n\ncould not be held liable under Title IX of the Education Amendments\n\nof 1972 \"unless an official who at a minimum has authority to\n\naddress the alleged discrimination and to institute corrective\n\nmeasures on the [district]'s behalf has actual knowledge of\n\ndiscrimination.\" Id. at 290. Whether the rationale of Gebser\n\nshould be extended to insulate public entities from liability under\n\nTitle II of the ADA on a theory of respondeat superior is an open\n\nquestion. Compare, e.g., Duvall v. County of Kitsap, 260 F.3d\n\n1124, 1141 (9th Cir. 2001) (stating that \"public entity is liable\n\n\n\n\nthis question had been improvidently granted. See id. at 1774.\nThe Court took pains to note, though, that whether Title II\n\"applies to arrests is an important question.\" Id. at 1773.\n\n\n - 31 -\n\ffor the vicarious acts of its employees\" under Title II), with,\n\ne.g., Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348-\n\n49 (11th Cir. 2012) (finding no respondeat superior liability under\n\nsection 504 of Rehabilitation Act in light of Gebser).11 For\n\npresent purposes, it is sufficient for us to assume, favorably to\n\nGray, that the Town could be held vicariously liable under Title\n\nII for Cummings's actions.\n\n The third question asks whether a showing of deliberate\n\nindifference is enough to support recovery of money damages under\n\nTitle II. Since a plaintiff must show \"intentional discrimination\"\n\non the part of the public entity to be eligible for damages on a\n\nTitle II claim, Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126\n\n(1st Cir. 2003), some uncertainty exists as to whether \"deliberate\n\nindifference\" is the functional equivalent of \"intentional\n\ndiscrimination.\" Several of our sister circuits have held that a\n\nshowing of deliberate indifference may suffice to prove this\n\nelement. See, e.g., Haberle, 885 F.3d at 181; Duvall, 260 F.3d at\n\n1138. But the question is open in this circuit, and we have stated\n\nthat, \"under Title II, non-economic damages are only available\n\nwhen there is evidence 'of economic harm or animus toward the\n\n\n\n\n 11 As a general matter, Title II of the ADA \"is to be\ninterpreted consistently with\" section 504 of the Rehabilitation\nAct, which prohibits disability discrimination by entities\nreceiving federal financial assistance. Theriault v. Flynn, 162\nF.3d 46, 48 n.3 (1st Cir. 1998).\n\n\n - 32 -\n\fdisabled.'\" Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st\n\nCir. 2006) (quoting Nieves-Márquez, 353 F.3d at 126-27). This\n\ncase does not require us to parse whether our use of the word\n\n\"animus\" demands more than a showing of deliberate indifference,\n\ncf. S.H. ex. rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d\n\n248, 263 (3d Cir. 2013) (interpreting Nieves-Márquez as requiring\n\n\"a higher showing of intentional discrimination than deliberate\n\nindifference\"), particularly since the Town has not advanced such\n\nan argument. For present purposes, it is sufficient for us to\n\nassume, favorably to Gray, that deliberate indifference is the\n\nappropriate standard.\n\n Adjudicating Grays's ADA claim against the Town does not\n\nrequire us to run the gauntlet of these questions. After all, we\n\nhave admonished before — and today reaffirm — that \"courts should\n\nnot rush to decide unsettled legal issues that can easily be\n\navoided.\" United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir.\n\n2013). Consistent with this prudential principle, we decline to\n\nanswer any of the three questions identified above. No matter how\n\nthe loaf is sliced, Gray was obliged at a bare minimum to make out\n\na genuine issue of material fact as to Cummings's deliberate\n\nindifference to the risk of an ADA violation.\n\n In this context, such a showing requires proof that the\n\ndefendant knew that an ADA-protected right was likely to be\n\nabridged, yet neglected to take available preventative action\n\n\n - 33 -\n\fnotwithstanding such knowledge. See Haberle, 885 F.3d at 181;\n\nDuvall, 260 F.3d at 1139-40. In other words, to hold the Town\n\nvicariously liable under Title II based on Cummings's deliberate\n\nindifference, Gray would have to show that Cummings knew that Gray\n\nhad a disability that required him to act differently than he would\n\notherwise have acted, yet failed to adjust his behavior\n\naccordingly. See, e.g., Crane v. Lifemark Hosps., Inc., 898 F.3d\n\n1130, 1136 (11th Cir. 2018); Duvall, 260 F.3d at 1140. Thus, to\n\nprevail on her version of the \"effects\" theory, Gray would at least\n\nhave to show that Cummings knew that her failure to follow his\n\norders was a symptom of her mental illness rather than deliberate\n\ndisobedience (warranting criminal charges). Similarly, to prevail\n\non her version of the \"accommodation\" theory, Gray would at least\n\nhave to show that Cummings knew that there was a reasonable\n\naccommodation, which he was required to provide. Gray has not\n\nmade either such showing.\n\n To be sure, it is undisputed that Cummings knew that\n\nGray was a section 12 patient and, thus, had a disability\n\n(specifically, that she suffered from an unspecified mental\n\nillness). See Mass. Gen. Laws ch. 123, § 12. But Gray has not\n\nshown that Cummings had any particularized knowledge about the\n\nnature or degree of Gray's disability. As we have explained, see\n\nsupra Part II.A, the fact that Gray was a section 12 patient served\n\nonly to put Cummings on notice that she had been deemed a danger\n\n\n - 34 -\n\fto herself or to others. There is insufficient evidence to suggest\n\nthat Cummings knew either that Gray suffered from bipolar disorder\n\nor that she was experiencing a manic episode. Without such\n\nparticularized knowledge, Cummings had no way of gauging whether\n\nthe conduct that appeared unlawful to him was likely to be a\n\nmanifestation of the symptoms of Gray's mental illness. So, too,\n\nwithout such particularized knowledge, Cummings had no way of\n\ngauging what specific accommodation, if any, might have been\n\nreasonable under the circumstances.\n\n Of course, Gray has adduced evidence that national\n\npolice standards provide protocols for dealing with individuals\n\nsuffering from any type of mental illness. Critically, though,\n\nGray has not adduced any evidence showing that Cummings knew of\n\nthe existence of such standards.12 Consequently, Cummings had no\n\nway of knowing that an ADA-protected right was likely to be\n\njeopardized by his actions.\n\n\n\n\n 12For the sake of completeness, we again note that the Town\nhas a policy, which states that Tasers should not be used against\n\"[t]hose known to be suffering from severe mental illness.\" Based\non this policy, it might be argued that refraining from using a\nTaser against Gray would have been a reasonable accommodation for\nher disability. It might also be argued that, in tasing Gray in\ncontravention of the policy, Cummings exhibited deliberate\nindifference. The rub, though, is that Gray has not advanced any\nsuch argument either below or in her appellate briefing. \"In the\nabsence of extraordinary circumstances, none of which are apparent\nhere, we have regularly declined to consider points which were not\nseasonably advanced below.\" Clauson v. Smith, 823 F.2d 660, 666\n(1st Cir. 1987).\n\n\n - 35 -\n\f Nor were Cummings's actions so plainly antithetic to the\n\nADA as to obviate the knowledge requirement. See Haberle, 885\n\nF.3d at 182. The record makes manifest that Cummings tried to\n\ntalk to Gray before physically engaging with her, telling her\n\nrepeatedly that she needed to return to the hospital. He followed\n\nher from a distance and did not make physical contact with her\n\nuntil she reversed direction and moved toward him. And in the\n\nensuing encounter, he warned her that she would be tased if she\n\ndid not put her hands behind her back and gave her several chances\n\nto comply before using the Taser (in the least intrusive mode\n\navailable).\n\n Gray has also offered evidence that in failing to wait\n\nfor backup or to call an ambulance prior to approaching her,\n\nCummings fell short of nationally recognized police standards.\n\nBut as we have said, she has not shown that Cummings knew of such\n\nstandards; and in all events, \"falling below national standards\n\ndoes not, in and of itself, make the risk of an ADA violation\" so\n\nobvious as to eliminate the knowledge requirement. Id.\n\n By the same token, Gray has not offered evidence\n\nsufficient to sustain a claim of direct liability against the Town.\n\nTo make out such a claim, Gray could show that the Town's \"existing\n\npolicies caused a failure to 'adequately respond to a pattern of\n\npast occurrences of injuries like [hers].'\" Id. at 181 (quoting\n\nBeers-Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001)). Or\n\n\n - 36 -\n\fshe could show \"that the risk of . . . cognizable harm was 'so\n\ngreat and so obvious'\" as to override the requirement of\n\ndemonstrating a pattern. Id. (quoting Beers-Capitol, 256 F.3d at\n\n136-37). Gray has not made either showing: she has proffered no\n\nevidence of a pattern, nor has she shown an obvious risk of harm.\n\nAt most, she has put forth evidence that the Town's policies failed\n\nto comply with national standards. But such a failure — without\n\nmore — does not render the risk of harm so great and obvious as to\n\nexcuse a failure to satisfy the pattern requirement. See id. at\n\n182.\n\n To this point, we have explained why Gray's claim for\n\nmoney damages is impuissant. But Gray's amended complaint also\n\nprays for injunctive relief. This form of redress, too, is beyond\n\nGray's reach. Past injury, in and of itself, \"is an insufficient\n\npredicate for equitable relief.\" Am. Postal Workers Union v.\n\nFrank, 968 F.2d 1373, 1376 (1st Cir. 1992). To have standing to\n\npursue injunctive relief, a plaintiff must \"establish a real and\n\nimmediate threat\" resulting in \"a sufficient likelihood that [s]he\n\nwill again be wronged in a similar way.\" Id. (quoting Los Angeles\n\nv. Lyons, 461 U.S. 95, 109, 111 (1983)); see Updike v. Multnomah\n\nCounty, 870 F.3d 939, 948 (9th Cir. 2017), cert. denied sub nom.\n\nMultnomah County v. Updike, 139 S. Ct. 55 (2018) (finding that ADA\n\nplaintiff \"lack[ed] standing to pursue his claims for injunctive\n\nrelief\"); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st\n\n\n - 37 -\n\fCir. 2003) (requiring \"real and immediate threat of ongoing harm\"\n\nfor injunctive relief in ADA case). Gray cannot clear this hurdle.\n\nWhen all is said and done, it is not enough for Gray to show that\n\nbecause she has bipolar disorder, she is likely to encounter the\n\npolice again. She must show that she is likely to be tased once\n\nmore, see Lyons, 461 U.S. at 105-06, and she has not managed any\n\nsuch showing.\n\n Because there is no remedy available to Gray under Title\n\nII of the ADA, it follows that the district court did not err in\n\nentering summary judgment for the Town on Gray's ADA claim. See\n\nCarmona-Rivera, 464 F.3d at 18 (affirming summary judgment for\n\ndefendants where no remedy was available to plaintiff on ADA\n\nclaim).\n\nIII. CONCLUSION\n\n We need go no further. We add only that this is a hard\n\ncase — a case that is made all the more difficult because of two\n\ncompeting concerns: our concern for the rights of the disabled\n\nand our concern that the police not be unduly hampered in the\n\nperformance of their important duties. In the end, though, we\n\nthink that the protections provided by Title II of the ADA can be\n\nharmonized with the doctrines of excessive force and qualified\n\nimmunity, as explicated by the Supreme Court, to achieve a result\n\nthat gives each of these competing concerns their due. We think\n\nthat our ruling today — which establishes in this circuit that a\n\n\n - 38 -\n\fjury could supportably find the use of a Taser to quell a\n\nnonviolent, mentally ill person who is resisting arrest to be\n\nexcessive force — satisfies this exacting standard.\n\n\n\nAffirmed.\n\n\n\n\n - 39 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370544/", "author_raw": "Judge David L. Bazelon Center for Mental Health Law, amici curiae"}]} | KAYATTA | SOUTER | SELYA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593291/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Judith GRAY, Plaintiff, Appellant, v. Thomas A. CUMMINGS ; Town of Athol, Massachusetts, Defendants, Appellees.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1303\n\n JUDITH GRAY,\n\n Plaintiff, Appellant,\n\n v.\n\n THOMAS A. CUMMINGS;\n TOWN OF ATHOL, MASSACHUSETTS,\n\n Defendants, Appellees.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Timothy S. Hillman, U.S. District Judge]\n [Hon. David H. Hennessy, U.S. Magistrate Judge]\n\n\n Before\n\n Kayatta, Circuit Judge,\n Souter, Associate Justice,\n and Selya, Circuit Judge.\n\n\n Matthew R. Segal, with whom Ruth A. Bourquin, American Civil\nLiberties Union Foundation of Massachusetts, Inc., Claudia Center,\nAmerican Civil Liberties Union Foundation, Richard L. Neumeier,\nand Morrison Mahoney LLP, were on brief, for appellant.\n David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer\nCutler Pickering Hale and Dorr LLP, Aaron M. Panner, Kellogg,\nHansen, Todd, Figel & Frederick, P.L.L.C., Nathalie F. P. Gilfoyle,\nDeanne M. Ottaviano, and Jennifer Mathis on brief for American\nPsychiatric Association, American Psychological Association, and\n\n \n Hon. David H. Souter, Associate Justice (Ret.) of the Supreme\nCourt of the United States, sitting by designation.\n\fJudge David L. Bazelon Center for Mental Health Law, amici curiae\n(in support of neither party).\n Thomas R. Donohue, with whom Deidre Brennan Regan, Leonard H.\nKesten, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief,\nfor appellees.\n Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello,\nand Petrini & Associates, P.C. on brief for International Municipal\nLawyers Association and Massachusetts Chiefs of Police\nAssociation, Inc., amici curiae (in support of affirmance).\n Pamela B. Petersen on brief for Axon Enterprise, Inc., amicus\ncuriae (in support of affirmance).\n\n\n February 22, 2019\n\f SELYA, Circuit Judge. This appeal arises at the\n\nintersection of constitutional law and disability-rights law. It\n\ntouches upon a plethora of important issues. Some of these issues\n\nrelate to the appropriateness of a police officer's use of a Taser\n\nin attempting to regain custody of a mentally ill person who, after\n\nbeing involuntarily committed, absconded from a hospital. Others\n\nrelate to the applicability vel non of Title II of the Americans\n\nwith Disabilities Act (ADA), 42 U.S.C. §§ 12131-65, to ad hoc\n\npolice encounters. In the end, we decide the case on the narrowest\n\navailable grounds and affirm the entry of summary judgment for the\n\ndefendants.\n\nI. BACKGROUND\n\n This case has its genesis in an on-the-street encounter\n\nbetween plaintiff-appellant Judith Gray (who suffers from bipolar\n\ndisorder) and Thomas Cummings, a police officer in Athol,\n\nMassachusetts (the Town). Because the case was decided below at\n\nthe summary judgment stage, we must take the facts in the light\n\nmost hospitable to the non-moving party (here, Gray), consistent\n\nwith record support. See Houlton Citizens' Coal. v. Town of\n\nHoulton, 175 F.3d 178, 184 (1st Cir. 1999). We caution, though,\n\nthat we are not obliged to credit \"conclusory allegations,\n\nimprobable inferences, acrimonious invective, or rank\n\nspeculation.\" Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).\n\n\n\n\n - 3 -\n\f Here, the raw facts are largely undisputed. In her\n\ndeposition, Gray testified that she \"really [didn't] know what\n\nhappened\" during the incident because she \"was in a full-blown\n\nmanic phase.\" She added that she \"wouldn't know Officer Cummings\n\nif [she] fell over him\" and that she had reviewed the police report\n\nprepared by Cummings and did not know whether or not it accurately\n\ndescribed the events that had transpired. Nor did she present any\n\nother evidence contradicting Cummings's version of the relevant\n\nevents. Although we recognize that juries have some leeway to\n\n\"reject uncontradicted, unimpeached testimony when it is\n\nimprobable, inherently contradictory, riddled with omissions, or\n\ndelivered in a manner giving rise to doubts,\" Quintana-Ruiz v.\n\nHyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002), that\n\nprinciple has no application here. Accordingly, we elicit many of\n\nthe facts from Cummings's account. See Harriman v. Hancock County,\n\n627 F.3d 22, 34 (1st Cir. 2010) (finding no material factual\n\ndispute when plaintiff \"had no memory of being beaten by anyone at\n\nanytime relevant to this case\"); see also Wertish v. Krueger, 433\n\nF.3d 1062, 1065 (8th Cir. 2006) (deeming police officer's version\n\nof events \"unrefuted\" when plaintiff testified that he had very\n\nlittle memory of relevant events). Even so, we draw all reasonable\n\ninferences from those facts in Gray's favor.\n\n On May 2, 2013, Gray — who was then fifty-seven years\n\nold — experienced a manic episode and called 911. Athol police\n\n\n - 4 -\n\fofficers arrived at Gray's home and transported her to Athol\n\nMemorial Hospital. She was admitted to the hospital at around\n\n4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, § 12 (authorizing\n\ninvoluntary \"[e]mergency restraint and hospitalization of persons\n\nposing risk of serious harm by reason of mental illness\").\n\nApproximately six hours later, Gray absconded from the hospital on\n\nfoot. Hospital staff called the Athol Police Department, asking\n\nthat Gray — \"a section 12 patient\" — be \"picked up and brought\n\nback.\"\n\n Cummings responded to the call and quickly located Gray,\n\nwalking barefoot along the sidewalk less than a quarter-mile from\n\nthe hospital. Cummings got out of his police cruiser. Gray swore\n\nat him, and Cummings told her that she \"ha[d] to go back to the\n\nhospital.\" Gray again used profanity, declared that she was not\n\ngoing back, and continued to walk away. In response, Cummings\n\nradioed for backup and followed Gray on foot. He repeatedly\n\nimplored Gray to return to the hospital, but his importunings were\n\ngreeted only by more profanity.\n\n Initially, Cummings followed Gray at a distance of\n\nroughly one hundred feet. Within twenty-five to thirty seconds,\n\nhe closed to within five feet. At that point, Gray stopped, turned\n\naround, \"clenched her fists, clenched her teeth, flexed her body\n\nand stared at [Cummings] as if she was looking right through\n\n[him].\" She again swore at Cummings and started walking toward\n\n\n - 5 -\n\fhim. Cummings grabbed Gray's shirt but he could feel Gray moving\n\nher body forward, so he \"took her to the ground.\" It is undisputed\n\nthat Cummings had a distinct height and weight advantage: he was\n\nsix feet, three inches tall and weighed 215 pounds, whereas Gray\n\nwas five feet, ten inches tall and weighed 140 pounds.\n\n Cummings testified that once on the ground, he\n\nrepeatedly instructed Gray to place her hands behind her back.\n\nShe did not comply. Instead, she \"tucked her arms underneath her\n\nchest and flex[ed] tightly,\" swearing all the while. Cummings\n\nwarned Gray that she was \"going to get ta[s]ed\" if she did not\n\nplace her hands behind her back.1 Gray did not heed this warning\n\nbut, rather, swore at Cummings again and told him to \"do it.\"\n\nCummings made \"one last final demand [for Gray] to stop resisting\"\n\nand when \"Gray refused to listen,\" he removed the cartridge from\n\nhis Taser, placed it in drive-stun mode,2 and tased Gray's back\n\nfor four to six seconds. Gray then allowed him to handcuff her.\n\n\n\n\n 1\n Gray testified she was told that she would be tased if she\nstood up. She also testified that at some point she was ordered\nto get to her knees, but that, due to prior injuries, she was\nunable to obey this order. Given Gray's repeated statements that\nshe could not recall the details of the encounter and that she\ncould not identify any factual inaccuracies in Cummings's police\nreport, we find these assertions insufficient to refute Cummings's\naccount. See Wertish, 433 F.3d at 1065.\n 2 Drive-stun mode is the least intrusive setting for a Taser:\n\nit delivers only a localized impact to the target. This contrasts\nwith probe-deployment mode, which disrupts the target's entire\nnervous system.\n\n\n - 6 -\n\f Cummings helped Gray to her feet and called an ambulance,\n\nwhich transported Gray to the hospital. According to Gray, she\n\nfelt \"pain all over\" at the moment she was tased, but she \"must\n\nhave passed out because [she] woke up in Emergency.\" Charges were\n\nsubsequently filed against Gray for assault on a police officer,\n\nresisting arrest, disturbing the peace, and disorderly conduct,\n\nbut were eventually dropped.\n\n In due season, Gray sued Cummings and the Town in the\n\nfederal district court. She invoked federal question\n\njurisdiction, see 28 U.S.C. § 1331, and asserted causes of action\n\nunder 42 U.S.C. § 1983 and Title II of the ADA, along with\n\nsupplemental state-law claims for assault and battery, malicious\n\nprosecution, and violations of the Massachusetts Civil Rights Act\n\n(MCRA), Mass. Gen. Laws ch. 12, §§ 11H-11I. After the completion\n\nof pretrial discovery, the defendants moved for summary judgment.\n\nSee Fed. R. Civ. P. 56(a). The district court referred the opposed\n\nmotion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.\n\nR. Civ. P. 72(b). Following a hearing, the magistrate judge issued\n\na report and recommendation, suggesting that the motion be granted.\n\nSpecifically, the magistrate judge found no violation of the Fourth\n\nAmendment under section 1983 on the part of either Cummings or the\n\nTown and no viable state-law claims. As to Cummings, the\n\nmagistrate judge added that, in any event, he was entitled to\n\nqualified immunity. The magistrate judge further concluded that\n\n\n - 7 -\n\fthere had been no abridgement of the ADA because, regardless of\n\nGray's disability, Cummings was entitled to employ an \"appropriate\n\nlevel of force in response to an ongoing threat.\"\n\n Gray objected to the magistrate judge's report and\n\nrecommendation. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.\n\n72(b). On de novo review, see Mercy Hosp., Inc. v. Mass. Nurses\n\nAss'n, 429 F.3d 338, 343 (1st Cir. 2005), the district court\n\nentered a two-sentence text order adopting the magistrate judge's\n\nreport and recommendation in substantial part. Because the court\n\nagreed that Cummings was entitled to qualified immunity, it\n\ndeclined to express any opinion on the magistrate judge's\n\ndetermination that \"Cummings employed reasonable force under all\n\nof the circumstances.\"\n\n This timely appeal followed. In addition to the parties'\n\nbriefs and oral argument, we have had the benefit of able briefing\n\nby several amici.\n\nII. ANALYSIS\n\n We review an order granting summary judgment de novo.\n\nSee Houlten Citizens' Coal., 175 F.3d at 184. \"We will affirm\n\nonly if the record reveals 'that there is no genuine dispute as to\n\nany material fact and the movant is entitled to judgment as a\n\nmatter of law.'\" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir.\n\n2011) (quoting Fed. R. Civ. P. 56(a)). Against this backdrop, we\n\nproceed to Gray's claims.\n\n\n - 8 -\n\f A. The Section 1983 Claims.\n\n Section 1983 supplies a private right of action against\n\na person who, under color of state law, deprives another of \"any\n\nrights, privileges, or immunities secured by the Constitution and\n\n[federal] laws.\" 42 U.S.C. § 1983. To maintain a cause of action\n\nunder section 1983, \"the plaintiff must show a deprivation of a\n\nfederally secured right.\" Harrington v. City of Nashua, 610 F.3d\n\n24, 28 (1st Cir. 2010). Gray has advanced separate section 1983\n\nclaims against Cummings and the Town. We address these claims\n\nsequentially.\n\n 1. Cummings. Gray's section 1983 claim against Cummings\n\nis premised on the notion that Cummings used excessive force in\n\neffecting her arrest and, thus, violated her Fourth Amendment\n\nrights. To prevail on such a claim, \"a plaintiff must show that\n\nthe defendant employed force that was unreasonable under all the\n\ncircumstances.\" Morelli v. Webster, 552 F.3d 12, 23 (1st Cir.\n\n2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The\n\ndegree of force to be used in any given situation is most often a\n\njudgment call, which sometimes must be made in a split second by\n\na police officer confronted with rapidly evolving circumstances.\n\nDetermining whether a particular use of force is reasonable\n\nrequires consideration of the totality of the circumstances. See\n\nGraham, 490 U.S. at 396. This consideration entails the weighing\n\nof a myriad of factors such as \"the severity of the crime at issue,\n\n\n - 9 -\n\fwhether the suspect pose[d] an immediate threat to the safety of\n\nthe officers or others, and whether [the suspect was] actively\n\nresisting arrest or attempting to evade arrest by flight.\" Id.\n\n Our starting point is the question of whether a\n\nreasonable jury could find that Cummings violated Gray's Fourth\n\nAmendment rights through the use of excessive force. The\n\nmagistrate judge answered this question in the negative,\n\nconcluding that, as a matter of law, \"the single deployment of a\n\ntaser in drive stun mode\" in these particular circumstances was\n\nreasonable. Viewing the record most hospitably to Gray and drawing\n\nall reasonable inferences to her behoof, we think that a reasonable\n\njury could find that the force employed by Cummings violated the\n\nFourth Amendment. We explain briefly.\n\n The Town's policies describe a Taser in drive-stun mode\n\nas a \"pain compliance tool.\"3 Thus, the question reduces to whether\n\nthe circumstances surrounding the confrontation between Gray and\n\nCummings, interpreted in the light most favorable to Gray,\n\njustified Cummings's use of such a tool.\n\n The magistrate judge analyzed this question in\n\naccordance with the Graham factors. In his view, the first factor\n\n— \"the severity of the crime at issue,\" id. — favored Cummings\n\n\n 3 This description is consistent with the descriptions found\nin the case law. See, e.g., Crowell v. Kirkpatrick, 400 F. App'x\n592, 595 (2d Cir. 2010) (explaining that drive-stun mode \"typically\ncauses temporary, if significant, pain and no permanent injury\").\n\n\n - 10 -\n\fbecause \"Ms. Gray assaulted [him].\" At summary judgment, though,\n\nthis assessment is insupportable: it fails to view the facts in\n\nthe light most favorable to Gray.\n\n In this regard, we think it important that Cummings was\n\nnot called to the scene to investigate a crime; he was there to\n\nreturn a person suffering from mental illness to the hospital.\n\nWhen the subject of a seizure has not committed any crime, the\n\nfirst Graham factor ordinarily cuts in the subject's favor. See\n\nEstate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810\n\nF.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not submit to\n\nCummings's orders. Withal, this failure to obey was at most a\n\nminor crime, not one that would tip the first Graham factor in\n\nCummings's favor. See id. at 899-900.\n\n Nor does the alleged assault tilt the scales. In\n\nCummings's view, the assault occurred when, after Gray walked\n\ntoward him, he grabbed her shirt and she \"continued pushing against\n\n[his] arm.\" In the circumstances of this case, we think that a\n\nreasonable jury could find that the facts did not support the\n\ncharacterization of Gray's actions as an \"assault.\"\n\n The same kind of defect mars the magistrate judge's\n\ndetermination that the second Graham factor — \"whether the suspect\n\nposes an immediate threat to the safety of the officers or others,\"\n\n490 U.S. at 396 — favored Cummings. It is true that Gray was a\n\nsection 12 patient, that is, an individual who has been\n\n\n - 11 -\n\finvoluntarily committed to a hospital pursuant to Mass. Gen. Laws\n\nch. 123, § 12, based on a determination by a qualified medical\n\nprofessional (or, in emergency situations, a police officer) that\n\n\"failure to hospitalize [her] would create a likelihood of serious\n\nharm by reason of mental illness.\" Id. § 12(a). It is also true\n\nthat Cummings knew as much. Although a jury could supportably\n\nfind on these facts that Cummings reasonably believed that Gray\n\nposed a danger to him, it could supportably find instead that Gray\n\n— who was shuffling down the sidewalk barefoot and unarmed — only\n\nposed a danger to herself (especially given Cummings's distinct\n\nheight and weight advantage). So, too, a jury could supportably\n\nfind that, at the time of the tasing, Gray had been subdued to a\n\npoint at which she no longer posed a threat.\n\n The magistrate judge concluded that the final Graham\n\nfactor — whether Gray was \"actively resisting arrest,\" 490 U.S. at\n\n396 — favored Cummings. This conclusion seems unimpugnable given\n\nCummings's testimony that he asked Gray several times to put her\n\nhands behind her back, but that she would not do so.\n\n The short of it is that the Graham factors point in\n\nconflicting directions. Seen through the prism of the totality of\n\nthe circumstances, the evidence is subject to interpretation and\n\ncan support plausible though inconsistent inferences. Drawing\n\nthose inferences beneficially to Gray and aware that Cummings not\n\nonly had her down on the ground but also outweighed her by some\n\n\n - 12 -\n\fseventy-five pounds, a reasonable jury could find that Gray had\n\ncommitted no crime and that she posed no threat to Cummings when\n\nhe tased her. When all is said and done, we think that Gray has\n\npresented sufficient evidence to make out a jury question as to\n\nwhether Cummings used excessive force. See, e.g., Morelli, 552\n\nF.3d at 23 (finding triable excessive force claim when officer\n\nslammed plaintiff, who \"at worst, was suspected of being a petty\n\nthief,\" against wall); Alexis v. McDonald's Rests. of Mass., Inc.,\n\n67 F.3d 341, 353 (1st Cir. 1995) (concluding that jury could find\n\nexcessive force when officer seized and dragged plaintiff to\n\neffectuate arrest for crime of trespassing in public restaurant);\n\nsee also Estate of Armstrong, 810 F.3d at 906 (finding excessive\n\nforce when officer tased \"mentally ill man being seized for his\n\nown protection, [who] was seated on the ground, was hugging a post\n\nto ensure his immobility, . . . and had failed to submit to a\n\nlawful seizure for only 30 seconds\").\n\n This conclusion does not end our inquiry. Cummings has\n\ninvoked the defense of qualified immunity. Qualified immunity is\n\na doctrine aimed at providing government officials (including\n\npolice officers) a modicum of protection from civil damages\n\nliability for actions taken under color of state law. See Harlow\n\nv. Fitzgerald, 457 U.S. 800, 818 (1982); McKenney v. Mangino, 873\n\nF.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018).\n\nThis protection attaches \"to all but the plainly incompetent or\n\n\n - 13 -\n\fthose who knowingly violate the law.\" Malley v. Briggs, 475 U.S.\n\n335, 341 (1986). Thus, a government official may invoke the\n\ndefense of qualified immunity when his actions, though causing\n\ninjury, did \"not violate clearly established statutory or\n\nconstitutional rights of which a reasonable person would have\n\nknown.\" Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018)\n\n(quoting Harlow, 457 U.S. at 818).\n\n The qualified immunity analysis has two facets: \"[t]he\n\ncourt must determine whether the defendant violated the\n\nplaintiff's constitutional rights\" and then must determine\n\n\"whether the allegedly abridged right was 'clearly established' at\n\nthe time of the defendant's claimed misconduct.\" Id. at 155\n\n(quoting McKenney, 873 F.3d at 81). In this instance, we already\n\nhave decided that a jury could find that Cummings violated Gray's\n\nFourth Amendment rights. We must now determine whether the alleged\n\nright was clearly established at the time of Cummings's violation.\n\nSee id. Specifically, we must ask whether, given the circumstances\n\nat hand, Gray's right to be free from the degree of force that\n\nCummings used — particularly, the Taser — was clearly established.\n\n This question, too, has two facets. First, the plaintiff\n\nmust \"identify either 'controlling authority' or a 'consensus of\n\ncases of persuasive authority' sufficient to send a clear signal\n\nto a reasonable official that certain conduct falls short of the\n\nconstitutional norm.\" Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir.\n\n\n - 14 -\n\f2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Second,\n\nthe plaintiff must demonstrate that \"an objectively reasonable\n\nofficial in the defendant's position would have known that his\n\nconduct violated that rule of law.\" Id. This latter step is\n\ndesigned to achieve a prophylactic purpose: it affords \"some\n\nbreathing room for a police officer even if he has made a mistake\n\n(albeit a reasonable one) about the lawfulness of his conduct.\"\n\nConlogue, 906 F.3d at 155. Taken together, these steps normally\n\nrequire that, to defeat a police officer's qualified immunity\n\ndefense, a plaintiff must \"identify a case where an officer acting\n\nunder similar circumstances was held to have violated the Fourth\n\nAmendment.\" City of Escondido v. Emmons, 139 S. Ct. 500, 504\n\n(2019) (per curiam) (quoting District of Columbia v. Wesby, 138 S.\n\nCt. 577, 590 (2018)); see Anderson v. Creighton, 483 U.S. 635,\n\n639-40 (1987). Although such a case need not arise on identical\n\nfacts, it must be sufficiently analogous to make pellucid to an\n\nobjectively reasonable officer the unlawfulness of his actions.4\n\nSee City of Escondido, 139 S. Ct. at 504; Ashcroft v. al-Kidd, 563\n\nU.S. 731, 741 (2011).\n\n\n\n\n 4 Sometimes, however, this requirement is relaxed. In\ncircumstances in which a violation of rights is apparent, a\nplaintiff may thwart a qualified immunity defense simply by\ndemonstrating that \"the unlawfulness of the officer's conduct is\nsufficiently clear even though existing precedent does not address\nsimilar circumstances.\" City of Escondido, 139 S. Ct. at 504\n(quoting Wesby, 138 S. Ct. at 590). This is not such a case.\n\n\n - 15 -\n\f The district court determined that \"the right not to be\n\ntased while offering non-violent stationary, resistance to a\n\nlawful seizure was not clearly established at the time of the\n\nconfrontation between Ms. Gray and Officer Cummings\" and,\n\ntherefore, ruled that Cummings was entitled to qualified immunity.\n\nWe examine the foundation on which this ruling rests.\n\n We begin with Estate of Armstrong, in which the Fourth\n\nCircuit conducted a similar qualified immunity analysis.\n\nSpecifically, the court considered whether the \"right not to be\n\nsubjected to tasing while offering stationary and non-violent\n\nresistance to a lawful seizure\" was clearly established. 810 F.3d\n\nat 907. Armstrong, who suffered from bipolar disorder and paranoid\n\nschizophrenia, had absconded from the hospital to which he had\n\nbeen committed. See id. at 896. The police were called and\n\nlocated Armstrong near the hospital's main entrance. See id.\n\nThree police officers approached Armstrong, who responded by\n\n\"wrapping himself around a four-by-four post that was supporting\n\na nearby stop sign.\" Id. The officers attempted to pry\n\nArmstrong's arms and legs loose but were unsuccessful. See id.\n\nOne of the officers then warned Armstrong that he would be tased\n\nif he did not let go of the post. See id. at 897. Armstrong did\n\nnot comply, and the officer proceeded to tase him five times in\n\ndrive-stun mode, over a span of approximately two minutes. See\n\nid. Even though Armstrong continued resisting, he was pried loose\n\n\n - 16 -\n\ffrom the post. See id. A struggle ensued, resulting in\n\nArmstrong's demise. See id. at 897-98.\n\n Although the court found that a jury could find the\n\nofficers had used excessive force, see id. at 906, it nonetheless\n\naffirmed summary judgment in favor of the defendants. The court\n\nreasoned that even though its finding that the officers had\n\nviolated Armstrong's Fourth Amendment rights was supported by\n\nprecedent, the law \"was not so settled [as of April 2011] such\n\nthat 'every reasonable official would have understood that' tasing\n\nArmstrong was unconstitutional\" under the circumstances. Id. at\n\n908 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per\n\ncuriam)).5\n\n The Fourth Circuit's conclusion in Estate of Armstrong\n\n— that the use of a Taser in drive-stun mode against a noncompliant\n\nand resisting individual was not clearly unconstitutional as of\n\n2011 — is not an outlier. Prior to Cummings's encounter with Gray,\n\nseveral other courts of appeals had found the use of a Taser\n\nreasonable in situations involving subjects who acted with a level\n\nof resistance analogous to that displayed by Gray. See, e.g.,\n\nHagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 507 (6th\n\nCir. 2012) (granting qualified immunity for use of Taser in drive-\n\n\n\n\n 5\n We note that Estate of Armstrong was decided in 2016 and,\nthus, Cummings did not have the benefit of the Fourth Circuit's\ndecision at the time of the incident sub judice.\n\n\n - 17 -\n\fstun mode in 2007 when plaintiff \"refused to be handcuffed,\" \"lay\n\ndown on the pavement and locked his arms tightly under his body,\n\nkicking his feet and continuing to scream\"); Draper v. Reynolds,\n\n369 F.3d 1270, 1278 (11th Cir. 2004) (finding single use of Taser\n\nin 2001 reasonable when plaintiff \"used profanity, moved around\n\nand paced in agitation,\" and \"repeatedly refused to comply with\n\n[the officer]'s verbal commands\" during traffic stop). Thus, an\n\nobjectively reasonable officer in Cummings's place and stead could\n\nreasonably have believed, in 2013, that the use of a Taser was\n\ngenerally permissible when a subject refuses to be handcuffed.\n\n Even so, the level of force that is constitutionally\n\npermissible in dealing with a mentally ill person \"differs both in\n\ndegree and in kind from the use of force that would be justified\n\nagainst a person who has committed a crime or who poses a threat\n\nto the community.\" Bryan v. MacPherson, 630 F.3d 805, 829 (9th\n\nCir. 2010). Consequently, a subject's mental illness is a factor\n\nthat a police officer must take into account in determining what\n\ndegree of force, if any, is appropriate. See Estate of Armstrong,\n\n810 F.3d at 900; Champion v. Outlook Nashville, Inc., 380 F.3d\n\n893, 904 (6th Cir. 2004). Here, however, the only thing that\n\nCummings knew about Gray's mental health was that she had been\n\ninvoluntarily committed under section 12; he did not know whether\n\nGray had been deemed a danger to others or only to herself. Given\n\nthe skimpiness of this information, we think that an objectively\n\n\n - 18 -\n\freasonable police officer, standing in Cummings's shoes, would\n\nhave had to be prepared for the worst.\n\n Based on the body of available case law, we hold that an\n\nobjectively reasonable police officer in May of 2013 could have\n\nconcluded that a single use of the Taser in drive-stun mode to\n\nquell a nonviolent, mentally ill individual who was resisting\n\narrest, did not violate the Fourth Amendment. Even if such a\n\nconclusion was constitutionally mistaken — as a jury could find on\n\nthe facts of this case — Cummings is shielded by qualified\n\nimmunity.\n\n Gray demurs. She identifies two of our precedents and\n\nposits that — whether viewed singly or in combination — they evince\n\nthe clearly established nature of her right to be free from tasing.\n\nBoth precedents are inapposite.\n\n The case on which Gray relies most heavily is Parker v.\n\nGerrish, 547 F.3d 1 (1st Cir. 2008). There, the plaintiff had\n\nbeen stopped on suspicion of driving while intoxicated. After the\n\nplaintiff failed several sobriety tests, the officer tried to\n\narrest him. See id. at 3-4. When the plaintiff resisted, the\n\nofficer drew his Taser and ordered the plaintiff to turn around\n\nand place his hands behind his back. See id. at 4. The plaintiff\n\ncomplied but clasped his right wrist with his left hand. See id.\n\nAnother officer approached and cuffed the plaintiff's left wrist.\n\nSee id. There was substantial dispute about what happened next,\n\n\n - 19 -\n\fbut according to the plaintiff's account (to which the court was\n\nrequired to defer in the posture of the case), he released his\n\nright wrist, yet was tased anyway. See id. at 4-5. On these\n\nfacts, we held that the police officer could be found to have\n\nviolated the Fourth Amendment by tasing an unarmed suspect who, in\n\nthe course of an arrest, \"present[ed] no significant 'active\n\nresistance' or threat\"6 at the time of the tasing. Id. at 10-11.\n\n The case at hand is a horse of a quite different hue.\n\nThere is no indication here that Gray, despite ample opportunity\n\nto do so, ever complied with Cummings's command to put her hands\n\nbehind her back. Even when Cummings warned her that she would be\n\ntased, she did not comply but, rather, continued cursing and told\n\nhim to \"do it.\"\n\n The second case upon which Gray relies is Ciolino v.\n\nGikas, 861 F.3d 296 (1st Cir. 2017), which involved events\n\noccurring in 2013. There, a police officer grabbed the plaintiff\n\nin a crowded street and forced him to the ground without giving\n\nhim any warning. See id. at 299-300. We held that the jury could\n\nfind that although the plaintiff had \"disobeyed a police order,\"\n\nhe \"was not given a chance to submit peacefully to arrest before\n\nsignificant force was used to subdue him\" and, therefore, \"an\n\n\n\n\n 6 We had no occasion in Parker to mull the implications of a\nqualified immunity defense. There, the officer waived any such\ndefense. See 547 F.3d at 13.\n\n\n - 20 -\n\f'objectively reasonable police officer' would have taken a more\n\nmeasured approach.\" Id. at 304 (quoting Raiche v. Pietroski, 623\n\nF.3d 30, 39 (1st Cir. 2010)).\n\n Once again, the case at hand is readily distinguishable.\n\nCummings repeatedly told Gray that she needed to return to the\n\nhospital, and she adamantly refused to obey. What is more, he\n\nwarned her that he would use his Taser if she remained\n\nintransigent, yet she defied the warning. Thus — unlike the\n\nplaintiff in Ciolino — Gray was afforded an adequate opportunity\n\nto submit to Cummings's authority before she was tased.\n\n Gray cites a number of other cases in support of her\n\nargument that her resistance was \"passive\" rather than \"active\"\n\nand, thus, did not justify the use of the Taser. This argument is\n\ndeeply flawed. Labels such as \"passive\" and \"active\" are\n\ngeneralizations and cannot serve as substitutes for a careful\n\nanalysis of the facts of a particular case. In point of fact, the\n\nSupreme Court — in an excessive force case — recently cautioned\n\nagainst \"defin[ing] the clearly established right at a high level\n\nof generality.\" City of Escondido, 139 S. Ct. at 503. There, the\n\nCourt reversed a denial of qualified immunity sought by an officer\n\nwho had tackled a man after he had closed the door to a dwelling\n\ndespite being instructed not to do so and \"tried to brush past\"\n\nthe officer. Id. at 502. The Court criticized the Ninth Circuit\n\nfor relying on \"case law [that] involved police force against\n\n\n - 21 -\n\findividuals engaged in passive resistance\" without making any\n\n\"effort to explain how that case law prohibited [the officer]'s\n\nactions in this case.\" Id. at 503-04 (emphasis in original). And\n\nin all events, respectable authority suggests that refusing to be\n\nhandcuffed constitutes active resistance and may justify the use\n\nof a Taser. See Hagans, 695 F.3d at 509 (collecting cases).\n\n We add, moreover, that several of the cases cited by\n\nGray involve deployment of a Taser subsequent to an initial Taser\n\nshock. See, e.g., Meyers v. Baltimore County, 713 F.3d 723, 733-\n\n34 (4th Cir. 2013); Cyrus v. Town of Mukwonago, 624 F.3d 856, 859-\n\n63 (7th Cir. 2010). Nothing of that sort happened here.7\n\n In the last analysis, Gray does not cite any case,\n\ndecided before her encounter with Cummings, that arose out of the\n\nuse of a Taser on facts fairly comparable to the facts at hand.\n\nIn the absence of either controlling authority or a consensus of\n\n\n\n\n 7 In furtherance of her argument that an objectively\nreasonable officer standing in Cummings's shoes would have known\nthat the degree of force used was unreasonable, Gray argues in her\nreply brief that the Town has a policy against tasing someone\n\"known to be suffering from severe mental illness.\" This argument\nis doubly waived: first, it was not advanced in the district\ncourt, see McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st\nCir. 1991) (\"It is hornbook law that theories not raised squarely\nin the district court cannot be surfaced for the first time on\nappeal.\"); and second, it was not advanced in Gray's opening brief\nin this court, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86\n(1st Cir. 1990) (\"[B]ecause the argument . . . surfac[ed] only in\n[appellant's] reply brief, it has been waived.\").\n\n\n - 22 -\n\fpersuasive authority to the contrary, we conclude that Cummings\n\nwas entitled to qualified immunity.\n\n As a fallback, Gray argues that the doctrine of qualified\n\nimmunity, as expounded by the Supreme Court, should be modified or\n\noverruled. Gray did not raise this argument in the district court\n\nand, thus, cannot advance it here. See Teamsters Union, Local No.\n\n59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) (\"If\n\nany principle is settled in this circuit, it is that, absent the\n\nmost extraordinary circumstances, legal theories not raised\n\nsquarely in the lower court cannot be broached for the first time\n\non appeal.\").\n\n 2. Town of Athol. In addition to her section 1983 claim\n\nagainst Cummings, Gray makes a section 1983 failure-to-train claim\n\nagainst the Town. She alleges that her Fourth Amendment rights\n\nwere violated by the Town's deficient training of its police\n\nofficers (including Cummings) with respect to proper protocols for\n\ninteracting with persons suffering from mental illness. Gray's\n\nevidence, though, falls well short of making out a failure-to-\n\ntrain claim against the Town.\n\n We cut directly to the chase. \"Triggering municipal\n\nliability on a claim of failure to train requires a showing that\n\nmunicipal decisionmakers either knew or should have known that\n\ntraining was inadequate but nonetheless exhibited deliberate\n\nindifference to the unconstitutional effects of those\n\n\n - 23 -\n\finadequacies.\" Haley v. City of Boston, 657 F.3d 39, 52 (1st Cir.\n\n2011). A plaintiff typically must show a \"pattern of similar\n\nconstitutional violations by untrained employees . . . to\n\ndemonstrate deliberate indifference for purposes of failure to\n\ntrain.\" Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing Bd.\n\nof Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).\n\nHere, however, Gray has made no such showing.\n\n In an effort to close this gap, Gray offers expert\n\ntestimony about appropriate police practices for interacting with\n\npersons with disabilities. Building on this foundation, she\n\ninsists that \"coupled with the facts of the encounter,\" such\n\nevidence \"create[s] questions of material fact as to whether the\n\nTown failed to properly train Cummings.\" In our view, these\n\nassertions are insufficient to support a failure-to-train claim.\n\nIt is not enough to show that the Town's training regimen was\n\nfaulty; Gray must also show that the Town knew or had reason to\n\nbelieve that such a regimen had unconstitutional effects. Gray\n\nhas tendered no evidence of past violations sufficient to put the\n\nTown on notice of such effects. Given this yawning gap in her\n\nproof, Gray has not made out a genuine issue of material fact as\n\nto whether the Town was deliberately indifferent to the risk of\n\nthe alleged constitutional violation. Consequently, her failure-\n\nto-train claim founders. See id. at 72; Hill v. Walsh, 884 F.3d\n\n16, 24 (1st Cir. 2018).\n\n\n - 24 -\n\f B. The State-Law Claims.\n\n Gray's supplemental state-law claims need not detain us.\n\nGray concedes that the assault and battery and MCRA claims \"rise\n\nand fall with . . . [her] § 1983 claim.\" This concession, coupled\n\nwith Gray's failure to offer any developed argumentation with\n\nrespect to these claims, ends our inquiry. See Torres-Arroyo v.\n\nRullán, 436 F.3d 1, 7 (1st Cir. 2006) (\"Gauzy generalizations are\n\nmanifestly insufficient to preserve an issue for appellate\n\nreview.\"). We deem waived any claim of error related to the\n\ndisposition of Gray's assault and battery and MCRA claims.\n\n The magistrate judge also granted summary judgment on\n\nGray's malicious prosecution claim. On appeal, Gray does not\n\nchallenge this ruling. Consequently, we deem the malicious\n\nprosecution claim abandoned. See United States v. Zannino, 895\n\nF.2d 1, 17 (1st Cir. 1990) (explaining that \"issues adverted to in\n\na perfunctory manner, unaccompanied by some effort at developed\n\nargumentation, are deemed waived\").\n\n C. The ADA Claim.\n\n There is one last hill to climb: Gray's claim against\n\nthe Town under the ADA. Some background is helpful.\n\n Congress enacted the ADA \"to provide a clear and\n\ncomprehensive national mandate for the elimination of\n\ndiscrimination against individuals with disabilities.\" 42 U.S.C.\n\n§ 12101(b)(1). Title I proscribes disability-related\n\n\n - 25 -\n\fdiscrimination in employment, see id. § 12112, and Title III\n\nproscribes disability-related discrimination in the provision of\n\npublic accommodations (such as hotels, restaurants, and theaters),\n\nsee id. §§ 12182, 12184. Neither of these titles is implicated\n\nhere.\n\n Title II broadly provides that \"no qualified individual\n\nwith a disability shall, by reason of such disability, be excluded\n\nfrom participation in or be denied the benefits of the services,\n\nprograms, or activities of a public entity, or be subjected to\n\ndiscrimination by any such entity.\" Id. § 12132. Gray's ADA claim\n\nagainst the Town is rooted in this Title.\n\n To establish a violation of Title II, a plaintiff must\n\nshow:\n\n (1) that [s]he is a qualified individual with\n a disability; (2) that [s]he was either\n excluded from participation in or denied the\n benefits of some public entity's services,\n programs, or activities or was otherwise\n discriminated against; and (3) that such\n exclusion, denial of benefits, or\n discrimination was by reason of the\n plaintiff's disability.\n\nBuchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting\n\nParker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.\n\n2000)). A \"qualified individual with a disability\" is\n\n an individual with a disability who, with or\n without reasonable modifications to rules,\n policies, or practices, the removal of\n architectural, communication, or\n transportation barriers, or the provision of\n\n\n - 26 -\n\f auxiliary aids and services, meets the\n essential eligibility requirements for the\n receipt of services or the participation in\n programs or activities provided by a public\n entity.\n\n42 U.S.C. § 12131(2). In turn, the term \"public entity\" includes\n\n\"any State or local government\" as well as \"any department, agency,\n\nspecial purpose district, or other instrumentality of a State or\n\nStates or local government.\" Id. § 12131(1).\n\n The Town does not gainsay either that Gray is a qualified\n\nperson with a disability or that the Town is a public entity.\n\nThus, the focal point of our inquiry is whether, during Gray's\n\nencounter with Cummings, she was \"denied the benefits of [the\n\nTown's] services, programs, or activities or was otherwise\n\ndiscriminated against . . . by reason of [her] disability.\"\n\nBuchanan, 469 F.3d at 170-71.\n\n Courts have identified two general theories describing\n\nways in which a police officer may violate the ADA in executing an\n\narrest. The first such theory (which we shall call the \"effects\"\n\ntheory) holds that a violation may be found when \"police wrongly\n\narrested someone with a disability because they misperceived the\n\neffects of that disability as criminal activity.\" Gohier v.\n\nEnright, 186 F.3d 1216, 1220 (10th Cir. 1999). The second such\n\ntheory (which we shall call the \"accommodation\" theory) holds that\n\na violation may be found when police officers \"properly\n\ninvestigated and arrested a person with a disability for a crime\n\n\n - 27 -\n\funrelated to that disability, [but] they failed to reasonably\n\naccommodate the person's disability in the course of investigation\n\nor arrest, causing the person to suffer greater injury or indignity\n\nin that process than other arrestees.\" Id. at 1220-21. Before\n\nus, Gray advances arguments under both theories.8 With respect to\n\nthe \"effects\" theory, Gray argues that the criminal charges filed\n\nagainst her are an indication that Cummings misperceived her\n\nfailure to follow his commands as a crime rather than a symptom of\n\nher disability. With respect to the \"accommodation\" theory, Gray\n\nargues that Cummings should have accommodated her disability by\n\n\"employ[ing] . . . time, patience, nonthreatening communication,\n\nmonitoring from a distance, and contacting and waiting for\n\nassistance such as an ambulance or a mental health care\n\nprofessional.\"\n\n In mounting our inquiry, we start with the\n\nuncontroversial premise that the services, programs, and\n\nactivities of a municipal police department are generally subject\n\nto the provisions of Title II of the ADA. See, e.g., Haberle v.\n\n\n\n\n 8 The magistrate judge concluded that \"Gray's complaint very\nclearly proceeds solely on the basis of the second theory of\nliability — that is, an alleged failure to reasonably accommodate.\"\nThis conclusion seems to overlook the allegation in Gray's amended\ncomplaint that the Town \"brought criminal charges against [Gray]\nwithout taking her mental illness into account.\" Even so, any\nerror was harmless: the magistrate judge prudently considered the\nmerits of Gray's arguments under both the \"effects\" theory and the\n\"accommodation\" theory.\n\n\n - 28 -\n\fTroxel, 885 F.3d 170, 179-80 (3d Cir. 2018); Gorman v. Bartch, 152\n\nF.3d 907, 912 (8th Cir. 1998). Yet, three questions loom that are\n\nmatters of first impression in this circuit:\n\n Does Title II apply to ad hoc police encounters\n\n with members of the public during investigations\n\n and arrests, and if so, to what extent?\n\n Assuming that Title II applies to the encounter\n\n that occurred here, may a public entity be held\n\n liable under Title II for a line employee's actions9\n\n on a theory of respondeat superior?\n\n Is proof of a defendant's deliberate indifference\n\n (as opposed to discriminatory animus) sufficient to\n\n support a plaintiff's claim for damages under Title\n\n II?\n\nWe are reluctant to plunge headlong into these murky waters. As\n\nwe explain below, the answers to these questions are less than\n\ncertain, and adjudicating Gray's ADA claim against the Town does\n\nnot require us to run this gauntlet.\n\n The first question asks whether and to what extent Title\n\nII of the ADA applies to ad hoc police encounters. The Fifth\n\nCircuit has held that \"Title II does not apply to an officer's on-\n\nthe-street responses to reported disturbances or other similar\n\n\n 9 We use the term \"line employee\" to describe an employee who\nis not involved in policymaking.\n\n\n - 29 -\n\fincidents, whether or not those calls involve subjects with mental\n\ndisabilities, prior to the officer's securing the scene and\n\nensuring that there is no threat to human life.\" Hainze v.\n\nRichards, 207 F.3d 795, 801 (5th Cir. 2000). Other circuits,\n\nthough, have charted a different course, holding that Title II\n\napplies without exception to ad hoc police encounters. See, e.g.,\n\nHaberle, 885 F.3d at 180 (concluding that \"police officers may\n\nviolate the ADA when making an arrest by failing to provide\n\nreasonable accommodations for a qualified arrestee's disability\");\n\nBircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007)\n\n(explaining that \"Title II prohibits discrimination by a public\n\nentity by reason of [plaintiff]'s disability\" during\n\ninvestigations and arrests); see also Gohier, 186 F.3d at 1221\n\n(stating that \"a broad rule categorically excluding arrests from\n\nthe scope of Title II . . . is not the law\"). Under this approach,\n\nexigent circumstances attendant to a police officer's decisions\n\nduring an ad hoc encounter simply weigh in the balance when\n\nevaluating the reasonableness of a prospective ADA accommodation.\n\nSee Haberle, 885 F.3d at 181 n.11; Bircoll, 480 F.3d at 1085-86.10\n\n\n 10 The Ninth Circuit reached the same conclusion in Sheehan\nv. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir.\n2014). The Supreme Court granted certiorari in Sheehan in order\nto resolve whether Title II of the ADA \"requires law enforcement\nofficers to provide accommodations to an armed, violent, and\nmentally ill suspect in the course of bringing the suspect into\ncustody.\" City & County of San Francisco v. Sheehan, 135 S. Ct.\n1765, 1772 (2015). The Court later concluded that certiorari on\n\n\n - 30 -\n\fWhile no circuit has found Title II of the ADA wholly inapplicable\n\nto ad hoc police encounters, the differences in approach indicate\n\nto us that we should tread cautiously. For present purposes, it\n\nis sufficient for us to assume, favorably to Gray, that Title II\n\nof the ADA applies to ad hoc police encounters (such as the\n\nencounter here) and that exigent circumstances may shed light on\n\nthe reasonableness of an officer's actions.\n\n The second question asks whether a public entity can be\n\nvicariously liable for money damages under Title II of the ADA\n\nbased on the conduct of a line employee. This question arises\n\nbecause, in Gebser v. Lago Vista Independent School District, 524\n\nU.S. 274 (1998), the Supreme Court held that a school district\n\ncould not be held liable under Title IX of the Education Amendments\n\nof 1972 \"unless an official who at a minimum has authority to\n\naddress the alleged discrimination and to institute corrective\n\nmeasures on the [district]'s behalf has actual knowledge of\n\ndiscrimination.\" Id. at 290. Whether the rationale of Gebser\n\nshould be extended to insulate public entities from liability under\n\nTitle II of the ADA on a theory of respondeat superior is an open\n\nquestion. Compare, e.g., Duvall v. County of Kitsap, 260 F.3d\n\n1124, 1141 (9th Cir. 2001) (stating that \"public entity is liable\n\n\n\n\nthis question had been improvidently granted. See id. at 1774.\nThe Court took pains to note, though, that whether Title II\n\"applies to arrests is an important question.\" Id. at 1773.\n\n\n - 31 -\n\ffor the vicarious acts of its employees\" under Title II), with,\n\ne.g., Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348-\n\n49 (11th Cir. 2012) (finding no respondeat superior liability under\n\nsection 504 of Rehabilitation Act in light of Gebser).11 For\n\npresent purposes, it is sufficient for us to assume, favorably to\n\nGray, that the Town could be held vicariously liable under Title\n\nII for Cummings's actions.\n\n The third question asks whether a showing of deliberate\n\nindifference is enough to support recovery of money damages under\n\nTitle II. Since a plaintiff must show \"intentional discrimination\"\n\non the part of the public entity to be eligible for damages on a\n\nTitle II claim, Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126\n\n(1st Cir. 2003), some uncertainty exists as to whether \"deliberate\n\nindifference\" is the functional equivalent of \"intentional\n\ndiscrimination.\" Several of our sister circuits have held that a\n\nshowing of deliberate indifference may suffice to prove this\n\nelement. See, e.g., Haberle, 885 F.3d at 181; Duvall, 260 F.3d at\n\n1138. But the question is open in this circuit, and we have stated\n\nthat, \"under Title II, non-economic damages are only available\n\nwhen there is evidence 'of economic harm or animus toward the\n\n\n\n\n 11 As a general matter, Title II of the ADA \"is to be\ninterpreted consistently with\" section 504 of the Rehabilitation\nAct, which prohibits disability discrimination by entities\nreceiving federal financial assistance. Theriault v. Flynn, 162\nF.3d 46, 48 n.3 (1st Cir. 1998).\n\n\n - 32 -\n\fdisabled.'\" Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 17 (1st\n\nCir. 2006) (quoting Nieves-Márquez, 353 F.3d at 126-27). This\n\ncase does not require us to parse whether our use of the word\n\n\"animus\" demands more than a showing of deliberate indifference,\n\ncf. S.H. ex. rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d\n\n248, 263 (3d Cir. 2013) (interpreting Nieves-Márquez as requiring\n\n\"a higher showing of intentional discrimination than deliberate\n\nindifference\"), particularly since the Town has not advanced such\n\nan argument. For present purposes, it is sufficient for us to\n\nassume, favorably to Gray, that deliberate indifference is the\n\nappropriate standard.\n\n Adjudicating Grays's ADA claim against the Town does not\n\nrequire us to run the gauntlet of these questions. After all, we\n\nhave admonished before — and today reaffirm — that \"courts should\n\nnot rush to decide unsettled legal issues that can easily be\n\navoided.\" United States v. Gonzalez, 736 F.3d 40, 40 (1st Cir.\n\n2013). Consistent with this prudential principle, we decline to\n\nanswer any of the three questions identified above. No matter how\n\nthe loaf is sliced, Gray was obliged at a bare minimum to make out\n\na genuine issue of material fact as to Cummings's deliberate\n\nindifference to the risk of an ADA violation.\n\n In this context, such a showing requires proof that the\n\ndefendant knew that an ADA-protected right was likely to be\n\nabridged, yet neglected to take available preventative action\n\n\n - 33 -\n\fnotwithstanding such knowledge. See Haberle, 885 F.3d at 181;\n\nDuvall, 260 F.3d at 1139-40. In other words, to hold the Town\n\nvicariously liable under Title II based on Cummings's deliberate\n\nindifference, Gray would have to show that Cummings knew that Gray\n\nhad a disability that required him to act differently than he would\n\notherwise have acted, yet failed to adjust his behavior\n\naccordingly. See, e.g., Crane v. Lifemark Hosps., Inc., 898 F.3d\n\n1130, 1136 (11th Cir. 2018); Duvall, 260 F.3d at 1140. Thus, to\n\nprevail on her version of the \"effects\" theory, Gray would at least\n\nhave to show that Cummings knew that her failure to follow his\n\norders was a symptom of her mental illness rather than deliberate\n\ndisobedience (warranting criminal charges). Similarly, to prevail\n\non her version of the \"accommodation\" theory, Gray would at least\n\nhave to show that Cummings knew that there was a reasonable\n\naccommodation, which he was required to provide. Gray has not\n\nmade either such showing.\n\n To be sure, it is undisputed that Cummings knew that\n\nGray was a section 12 patient and, thus, had a disability\n\n(specifically, that she suffered from an unspecified mental\n\nillness). See Mass. Gen. Laws ch. 123, § 12. But Gray has not\n\nshown that Cummings had any particularized knowledge about the\n\nnature or degree of Gray's disability. As we have explained, see\n\nsupra Part II.A, the fact that Gray was a section 12 patient served\n\nonly to put Cummings on notice that she had been deemed a danger\n\n\n - 34 -\n\fto herself or to others. There is insufficient evidence to suggest\n\nthat Cummings knew either that Gray suffered from bipolar disorder\n\nor that she was experiencing a manic episode. Without such\n\nparticularized knowledge, Cummings had no way of gauging whether\n\nthe conduct that appeared unlawful to him was likely to be a\n\nmanifestation of the symptoms of Gray's mental illness. So, too,\n\nwithout such particularized knowledge, Cummings had no way of\n\ngauging what specific accommodation, if any, might have been\n\nreasonable under the circumstances.\n\n Of course, Gray has adduced evidence that national\n\npolice standards provide protocols for dealing with individuals\n\nsuffering from any type of mental illness. Critically, though,\n\nGray has not adduced any evidence showing that Cummings knew of\n\nthe existence of such standards.12 Consequently, Cummings had no\n\nway of knowing that an ADA-protected right was likely to be\n\njeopardized by his actions.\n\n\n\n\n 12For the sake of completeness, we again note that the Town\nhas a policy, which states that Tasers should not be used against\n\"[t]hose known to be suffering from severe mental illness.\" Based\non this policy, it might be argued that refraining from using a\nTaser against Gray would have been a reasonable accommodation for\nher disability. It might also be argued that, in tasing Gray in\ncontravention of the policy, Cummings exhibited deliberate\nindifference. The rub, though, is that Gray has not advanced any\nsuch argument either below or in her appellate briefing. \"In the\nabsence of extraordinary circumstances, none of which are apparent\nhere, we have regularly declined to consider points which were not\nseasonably advanced below.\" Clauson v. Smith, 823 F.2d 660, 666\n(1st Cir. 1987).\n\n\n - 35 -\n\f Nor were Cummings's actions so plainly antithetic to the\n\nADA as to obviate the knowledge requirement. See Haberle, 885\n\nF.3d at 182. The record makes manifest that Cummings tried to\n\ntalk to Gray before physically engaging with her, telling her\n\nrepeatedly that she needed to return to the hospital. He followed\n\nher from a distance and did not make physical contact with her\n\nuntil she reversed direction and moved toward him. And in the\n\nensuing encounter, he warned her that she would be tased if she\n\ndid not put her hands behind her back and gave her several chances\n\nto comply before using the Taser (in the least intrusive mode\n\navailable).\n\n Gray has also offered evidence that in failing to wait\n\nfor backup or to call an ambulance prior to approaching her,\n\nCummings fell short of nationally recognized police standards.\n\nBut as we have said, she has not shown that Cummings knew of such\n\nstandards; and in all events, \"falling below national standards\n\ndoes not, in and of itself, make the risk of an ADA violation\" so\n\nobvious as to eliminate the knowledge requirement. Id.\n\n By the same token, Gray has not offered evidence\n\nsufficient to sustain a claim of direct liability against the Town.\n\nTo make out such a claim, Gray could show that the Town's \"existing\n\npolicies caused a failure to 'adequately respond to a pattern of\n\npast occurrences of injuries like [hers].'\" Id. at 181 (quoting\n\nBeers-Capitol v. Whetzel, 256 F.3d 120, 136 (3d Cir. 2001)). Or\n\n\n - 36 -\n\fshe could show \"that the risk of . . . cognizable harm was 'so\n\ngreat and so obvious'\" as to override the requirement of\n\ndemonstrating a pattern. Id. (quoting Beers-Capitol, 256 F.3d at\n\n136-37). Gray has not made either showing: she has proffered no\n\nevidence of a pattern, nor has she shown an obvious risk of harm.\n\nAt most, she has put forth evidence that the Town's policies failed\n\nto comply with national standards. But such a failure — without\n\nmore — does not render the risk of harm so great and obvious as to\n\nexcuse a failure to satisfy the pattern requirement. See id. at\n\n182.\n\n To this point, we have explained why Gray's claim for\n\nmoney damages is impuissant. But Gray's amended complaint also\n\nprays for injunctive relief. This form of redress, too, is beyond\n\nGray's reach. Past injury, in and of itself, \"is an insufficient\n\npredicate for equitable relief.\" Am. Postal Workers Union v.\n\nFrank, 968 F.2d 1373, 1376 (1st Cir. 1992). To have standing to\n\npursue injunctive relief, a plaintiff must \"establish a real and\n\nimmediate threat\" resulting in \"a sufficient likelihood that [s]he\n\nwill again be wronged in a similar way.\" Id. (quoting Los Angeles\n\nv. Lyons, 461 U.S. 95, 109, 111 (1983)); see Updike v. Multnomah\n\nCounty, 870 F.3d 939, 948 (9th Cir. 2017), cert. denied sub nom.\n\nMultnomah County v. Updike, 139 S. Ct. 55 (2018) (finding that ADA\n\nplaintiff \"lack[ed] standing to pursue his claims for injunctive\n\nrelief\"); Dudley v. Hannaford Bros. Co., 333 F.3d 299, 306 (1st\n\n\n - 37 -\n\fCir. 2003) (requiring \"real and immediate threat of ongoing harm\"\n\nfor injunctive relief in ADA case). Gray cannot clear this hurdle.\n\nWhen all is said and done, it is not enough for Gray to show that\n\nbecause she has bipolar disorder, she is likely to encounter the\n\npolice again. She must show that she is likely to be tased once\n\nmore, see Lyons, 461 U.S. at 105-06, and she has not managed any\n\nsuch showing.\n\n Because there is no remedy available to Gray under Title\n\nII of the ADA, it follows that the district court did not err in\n\nentering summary judgment for the Town on Gray's ADA claim. See\n\nCarmona-Rivera, 464 F.3d at 18 (affirming summary judgment for\n\ndefendants where no remedy was available to plaintiff on ADA\n\nclaim).\n\nIII. CONCLUSION\n\n We need go no further. We add only that this is a hard\n\ncase — a case that is made all the more difficult because of two\n\ncompeting concerns: our concern for the rights of the disabled\n\nand our concern that the police not be unduly hampered in the\n\nperformance of their important duties. In the end, though, we\n\nthink that the protections provided by Title II of the ADA can be\n\nharmonized with the doctrines of excessive force and qualified\n\nimmunity, as explicated by the Supreme Court, to achieve a result\n\nthat gives each of these competing concerns their due. We think\n\nthat our ruling today — which establishes in this circuit that a\n\n\n - 38 -\n\fjury could supportably find the use of a Taser to quell a\n\nnonviolent, mentally ill person who is resisting arrest to be\n\nexcessive force — satisfies this exacting standard.\n\n\n\nAffirmed.\n\n\n\n\n - 39 -\n[END_CASE]",
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4,593,292 | EASTHAMPTON CONGREGATIONAL CHURCH, Plaintiff, Appellee, v. CHURCH MUTUAL INSURANCE COMPANY, Defendant, Appellant. | Easthampton Congregational v. Church Mutual Insurance Co. | 2019-02-22 | 18-1881P | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch, Souter, Stahl", "parties": "", "opinions": [{"author": "STAHL, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 18-1881\n\n EASTHAMPTON CONGREGATIONAL CHURCH,\n\n Plaintiff, Appellee,\n\n v.\n\n CHURCH MUTUAL INSURANCE COMPANY,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Katherine A. Robertson, Magistrate Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter, Associate Justice,*\n and Stahl, Circuit Judge.\n\n\n John Egan, with whom Rubin and Rudman, LLP was on brief, for\nappellant.\n William P. Rose, with whom Melick & Porter LLP was on brief,\nfor appellee.\n\n\n February 22, 2019\n\n\n\n\n * Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f STAHL, Circuit Judge. This appeal requires the\n\ninterpretation of words and terms in an insurance policy.\n\nPlaintiff-Appellee Easthampton Congregational Church (the\n\n\"Church\") had a property insurance policy (the \"Policy\") with\n\nDefendant-Appellant Church Mutual Insurance Company (the\n\n\"Insurance Company\"). On April 25, 2016, the ceiling in one\n\nsection of the Church collapsed. The Church filed a claim pursuant\n\nto the Policy, which the Insurance Company denied. The Church\n\nthen filed suit, seeking a declaratory judgment that the claim was\n\ncovered. On cross-motions for summary judgment, the district court\n\nruled for the Church. Noting that the Policy did not define the\n\nword \"decay,\" the court adopted a dictionary definition of the\n\nword and used that definition to conclude that the Policy provided\n\ncoverage. We affirm, albeit for different reasons.\n\n I. Factual Background\n\n A. The Insurance Policy\n\n The Policy was in effect at the time of the collapse and\n\ncarries a coverage limit of $5,353,000. The parties agree that\n\nthe damaged section of the Church, Fellowship Hall, \"is among the\n\n[covered] premises described in the [P]olicy's Declarations Page.\"\n\n The coverage provisions are governed by two primary\n\nforms. The first is the \"Building and Personal Property Coverage\n\nForm,\" which covers \"direct physical loss of or damage to Covered\n\nProperty . . . caused by or resulting from any Covered Cause of\n\n\n - 2 -\n\fLoss.\" The second is the \"Causes of Loss - Special Form.\" That\n\nform sets forth various exclusions and limitations in Sections B\n\nand C, respectively.\n\n The Insurance Company argues that two exclusionary\n\nclauses are relevant to this case. First, in Section B-2(d), the\n\nPolicy includes a \"Wear and Tear Exclusion\" which states:\n\n We will not pay for loss or damage caused by\n or resulting from any of the following:\n\n . . .\n\n d. (1) Wear and tear;\n (2) Rust, or other corrosion, decay,\n deterioration, hidden or latent\n defect, or any quality in property\n that causes it to damage or destroy\n itself;[1]\n\nSecond, in Section B-3(c), the Policy includes a \"Faulty\n\nConstruction Exclusion\" which excludes coverage for:\n\n loss or damage caused by or resulting from any\n of the following [sections] but if an excluded\n cause of loss that is listed in [the following\n sections] results in a Covered Cause of Loss,\n we will pay for the loss or damage caused by\n that Covered Cause of Loss.\n\n . . .\n\n c. Faulty, inadequate, or defective:\n\n . . .\n\n\n\n 1 The Insurance Company did not cite the exclusions for \"wear\nand tear\" and for \"any quality in property that causes it to damage\nor destroy itself\" in its letters to the Church denying coverage,\nthough it did raise them before the district court.\n\n\n - 3 -\n\f (2) Design, specifications,\n workmanship, repair, construction,\n renovation, remodeling, grading,\n compaction;\n (3) Materials used in repair,\n construction, renovation, or\n remodeling; or\n (4) Maintenance;\n\n of part or all of any property on or off\n the described premises.\n\n In Section B-2(j), the Policy also includes a \"Collapse\n\nExclusion\" which excludes coverage for:\n\n Collapse, except as provided below in the\n Additional Coverage - Collapse [provision].\n But if collapse results in a Covered Cause of\n Loss at the described premises, we will pay\n for the loss or damage caused by that Covered\n Cause of Loss.\n\nThe Additional Coverage - Collapse provision, Section D-2, in turn\n\nstates:\n\n The term Covered Cause of Loss includes the\n Additional Coverage - Collapse as described\n and limited in [the sections] below.\n\n 1. With respect to buildings:\n\n a. Collapse means an abrupt falling\n down or caving in of a building or\n any part of a building with the\n result that the building or part of\n the building cannot be occupied for\n its intended purpose;\n\n . . .\n\n 2. We will pay for direct physical loss or\n damage to Covered Property, caused by\n collapse of a [Covered Property] . . . if\n the collapse is caused by one or more of\n the following:\n\n\n - 4 -\n\f . . .\n\n b. Decay that is hidden from view,\n unless the presence of such decay is\n known to an insured prior to\n collapse;\n\n . . .\n\n f. Use of defective material or methods\n in construction, remodeling, or\n renovation if the collapse occurs\n during the course of the\n construction, remodeling, or\n renovation. However, if the\n collapse occurs after construction,\n remodeling, or renovation is\n complete and is caused in part by a\n cause of loss listed in [the\n previous sections]; we will pay for\n the loss or damage even if use of\n defective material or methods, in\n construction, remodeling, or\n renovation, contributes to the\n collapse.\n\nTherefore, although Section B-2(j) excludes coverage for collapses\n\ngenerally, Section D-2 effectively reinstates coverage under\n\nlimited circumstances, including where the collapse was caused in\n\npart by \"[d]ecay that is hidden from view.\" It is noted that the\n\nPolicy does not define the word \"decay.\"\n\n B. The Ceiling Collapse\n\n On April 25, 2016, the ceiling in the Fellowship section\n\nof the Church fell to the floor. The Church promptly reported the\n\nincident to the Insurance Company. Eight days later, at the\n\nrequest of the Insurance Company, forensic engineer Joseph Malo\n\n\n\n - 5 -\n\finspected the ceiling collapse and detailed his findings in a\n\nwritten report. The parties accepted the contents of Malo's report\n\nas \"agreed material facts.\"\n\n In that report, Malo wrote that the ceiling \"consist[ed]\n\nof three different types of materials installed one over the other\n\nwith a total thickness of approximately 3 [and] 3/4 inches.\" \"The\n\noriginal ceiling [was] constructed with wood lath and plaster\n\nattached to boards\" spaced twelve inches apart. The boards\n\nthemselves \"were attached to the ceiling joists\" by \"cut nails\n\nwith approximately 1 [and] 3/4-inch penetration.\" Although the\n\nboards were nailed to the joists, the wood lath and plaster were\n\nattached only to the boards. Sometime after the original ceiling\n\nwas constructed, two more ceiling layers were installed. The\n\nsecond layer consisted of drywall affixed to boards, which were\n\nthen nailed directly into the plaster. The third layer consisted\n\nof ceiling tiles that were attached directly to the surface of the\n\ndrywall. Neither the second nor third layers were attached to the\n\nceiling joists. In addition, there was approximately ten inches\n\nof insulation blown into the space above the ceiling. Therefore,\n\nthe only support for the three layers of ceiling materials and\n\ninsulation was the original nails that fastened the first layer of\n\nboards to the ceiling joists.\n\n Malo concluded that \"nail withdrawal\" by the smooth\n\nnails used to secure the original boards to the joists caused the\n\n\n - 6 -\n\fceiling collapse. He observed that \"cyclical volumetric changes\n\ninduce[d] by normal temperature and moisture changes in the\n\nbuilding materials\" had caused the nails' connection to the joists\n\nto weaken. Eventually, the nails completely pulled out, \"leaving\n\nonly holes in the bottoms of the ceiling joists.\" In other words,\n\nthe collapse was caused by the \"progressive failure of the\n\nfasteners used to attach the layers of ceiling to the ceiling\n\njoists due to the weight of the ceiling.\"\n\n C. Denial of Coverage\n\n On May 19, 2016, the Insurance Company denied the\n\nChurch's claim, relying on Malo's report. As relevant here, the\n\nInsurance Coverage cited the Faulty Construction Exclusion,\n\nstating that \"[t]he fasteners used to uphold the ceiling were\n\ninadequate for the size/weight of the ceiling, and the ceiling\n\nsystem was not adequately fastened to the structure.\" The Church\n\nasked the Insurance Company to reconsider its decision, arguing\n\nthat the collapse was covered under the Additional Coverage -\n\nCollapse provision. However, on July 1, 2016, the Insurance\n\nCompany denied the reconsideration request.\n\n On September 26, 2016, the Church, through counsel, sent\n\nthe Insurance Company a letter detailing its position that the\n\nloss caused by the ceiling collapse was a covered event under the\n\nPolicy. The Church disputed the application of the Faulty\n\nConstruction Exclusion, claiming that because the ceiling lasted\n\n\n - 7 -\n\fapproximately sixty years, its construction was \"entirely\n\neffective.\" In addition, the Church argued that the collapse was\n\ncaused by hidden decay and so was covered by the Additional\n\nCoverage - Collapse provision. It noted that Malo's report\n\nconcluded that the collapse occurred because of nail withdrawal,\n\nwhich was a \"progressive failure\" that \"could have taken a period\n\nof years to occur.\"\n\n The Insurance Company replied by letter through counsel\n\non October 21, 2016, reiterating its prior position that the\n\ncollapse occurred because of \"faulty construction.\"\n\nSpecifically, it argued that Malo's report concluded that the\n\nceiling's construction was flawed because the second and third\n\nlayers were not securely fastened to the ceiling joists. The\n\nletter also rejected the Church's allegation that hidden decay\n\ncontributed to the collapse.\n\n II. Procedural Background\n\n The Church filed suit in Massachusetts Superior Court in\n\nApril 2017 seeking a declaratory judgment that the Policy provided\n\ncoverage for the collapse. The Insurance Company timely removed\n\nthe case to federal court based on diversity jurisdiction.2 Both\n\n\n\n\n 2 The Church is an organization located in Easthampton,\nMassachusetts; the Insurance Company is a corporation with its\nprincipal place of business in Merrill, Wisconsin; and the amount\nin controversy exceeds $75,000.\n\n\n - 8 -\n\fparties consented to have the case heard by a magistrate judge and\n\nfiled cross-motions for summary judgment.\n\n On May 10, 2018, the district court granted summary\n\njudgment for the Church. Easthampton Congregational Church v.\n\nChurch Mut. Ins. Co., 322 F. Supp. 3d 230 (D. Mass. 2018). The\n\ncourt concluded that the collapse resulted at least in part from\n\n\"hidden decay\" such that the Additional Coverage - Collapse\n\nprovision applied. Id. at 235-41. After noting that the Policy\n\nfailed to define \"decay,\" the court looked to dictionary\n\ndefinitions of that term and adopted a definition that encompassed\n\n\"a gradual deterioration or decline in strength or soundness.\"\n\nId. at 236-37. From there, the court held that there was\n\nsufficient evidence (i.e., the Malo report) to show that the\n\ncollapse \"was 'caused in part' by 'decay'\" \"hidden from view\" --\n\nnamely, the gradual nail withdrawal. Id. at 236-38. Accordingly,\n\nit held that the collapse fell within the Additional Coverage -\n\nCollapse provision. Id. Because that provision expressly provided\n\ncoverage, the court declined to address the Insurance Company's\n\narguments that the Wear and Tear and Faulty Construction Exclusions\n\napplied. Id. at 241-42. This timely appeal followed.\n\n III. Analysis\n\n A. Legal Framework\n\n We review the district court's grant of summary judgment\n\nde novo. AJC Int'l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3\n\n\n - 9 -\n\f(1st Cir. 2015). \"Cross motions [for summary judgment] simply\n\nrequire us to determine whether either of the parties deserves\n\njudgment as a matter of law on facts that are not disputed.\"\n\nLittlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004)\n\n(quotation marks and citation omitted).\n\n \"Because this case is brought in diversity jurisdiction,\n\nwe must look to state law for the substantive rules of decision.\"\n\nSanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)\n\n(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The\n\nparties agree that Massachusetts law controls the disposition of\n\nthis case. See Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st\n\nCir. 2011) (\"In determining which state's law applies, a diversity\n\ncourt is free to honor the parties' reasonable agreement.\").\n\n \"[T]he construction of an insurance policy is a question\n\nof law . . . .\" Lind-Hernández v. Hosp. Episcopal San Lucas\n\nGuayama, 898 F.3d 99, 103 (1st Cir. 2018) (internal quotation marks\n\nand citation omitted). \"Under Massachusetts law, we construe an\n\ninsurance policy under the general rules of contract\n\ninterpretation, beginning with the actual language of the\n\npolicies, given its plain and ordinary meaning.\" AIG Prop. Cas.\n\nCo. v. Cosby, 892 F.3d 25, 27 (1st Cir. 2018) (internal quotation\n\nmarks, alterations, and citation omitted).\n\n As a general matter, in Massachusetts, the insured bears\n\nthe \"initial burden of showing that the case involves a generally\n\n\n - 10 -\n\fcovered risk under the policy.\" Stor/Gard, Inc. v. Strathmore\n\nIns. Co., 717 F.3d 242, 247 (1st Cir. 2013) (citation omitted).\n\nWhere, as is here, the parties do not dispute that the incident\n\nwas a generally covered risk, the burden shifts such that the\n\ninsurer must demonstrate that an exclusion precludes coverage.\n\nClark Sch. for Creative Learning, Inc. v. Phila. Indem. Ins. Co.,\n\n734 F.3d 51, 55 & n.1 (1st Cir. 2013). \"And if the insurer\n\nsatisfies that burden, the burden shifts back to the insureds to\n\nshow an exception to the exclusion holds sway.\" Stor/Gard, Inc.,\n\n717 F.3d at 247 (citation omitted).\n\n However, where \"a term is 'susceptible of more than one\n\nmeaning and reasonably intelligent persons would differ as to which\n\nmeaning is the proper one,' the term is ambiguous.\" U.S. Liab.\n\nIns. Co. v. Benchmark Constr. Servs., Inc., 797 F.3d 116, 119-20\n\n(1st Cir. 2015) (quoting Citation Ins. Co. v. Gomez, 426 Mass.\n\n379, 381 (1998)). To the extent an ambiguity does exist, it is\n\nstrictly construed against the insurer. See Metro. Prop. & Cas.\n\nIns. Co. v. Morrison, 460 Mass. 352, 362-63 (2011).\n\n It is also a principle of Massachusetts law that \"[m]ore\n\nspecific contract terms ordinarily control over more general\n\ncontract terms.\" Davis v. Dawson, Inc., 15 F. Supp. 2d 64, 109\n\n(D. Mass. 1998) (citing Lawson v. Fed. Deposit Ins. Corp., 3 F.3d\n\n11, 17 (1st Cir. 1993)). Therefore, if a policy provision is found\n\n\n\n\n - 11 -\n\fto provide for coverage, then general exclusion clauses are\n\ninapplicable. See id.\n\n B. Definition of \"Decay\"\n\n The parties agree that we must first determine whether\n\nthe hidden decay section of the Additional Coverage - Collapse\n\nprovision applies. If the ceiling collapse is covered by that\n\nsection, or if the language is ambiguous with respect to coverage,\n\nthen the general Faulty Construction and Wear and Tear Exclusions\n\nare inapplicable. The parties further agree that the nail\n\nwithdrawal was \"hidden,\" so that the disposition of this case turns\n\nat the outset on the definition and application of the word\n\n\"decay.\"\n\n As we have said, the Policy does not define \"decay.\" In\n\nsuch circumstances, \"courts often look to dictionaries for\n\nassistance in determining ordinary meaning.\" Fed. Ins. Co. v.\n\nRaytheon Co., 426 F.3d 491, 498-99 (1st Cir. 2005) (citation\n\nomitted). Here, the district court consulted two dictionaries.\n\nEasthampton, 322 F. Supp. 3d at 236. First, it looked to the\n\nMerriam-Webster Dictionary, which defined \"decay\" (in noun form)\n\nas a \"gradual decline in strength, soundness, or prosperity or in\n\ndegree of excellence or perfection,\" \"a wasting or wearing away,\"\n\nand a \"rot . . . specifically[,] aerobic decomposition of proteins\n\nchiefly by bacteria.\" Decay, Merriam-Webster Dictionary,\n\navailable at https://www.merriam-webster.com/dictionary/decay.\n\n\n - 12 -\n\fSecond, it turned to the Oxford English Dictionary, which defined\n\n\"decay\" as \"[t]he process of falling off from a prosperous or\n\nthriving condition; progressive decline; the condition of one who\n\nhas thus fallen off or declined,\" \"falling off (in quantity,\n\nvolume, intensity, etc.); dwindling, decrease,\" and \"the\n\ndestructive decomposition or wasting of organic tissue; rotting.\"\n\nDecay, Oxford English Dictionary, available at\n\nhttp://www.oed.com/view/Entry/48067?rskey=z7ljDr& result=1#eid.\n\n The district court held that \"[t]he most reasonable\n\nreading of the word 'decay' as it is used in the Policy is that it\n\nrefers to the broader concept of the word.\" Easthampton, 322 F.\n\nSupp. 3d at 236. That is, a \"gradual decline in strength\" or\n\n\"progressive decline\" as opposed to a narrower definition that\n\nentails organic rotting. Id. at 236-37. In support, it noted\n\nthat the Policy used the word \"rot\" in a separate exclusion titled\n\n\"'Fungus,' Wet Rot, Dry Rot and Bacteria.\" Id. at 236.\n\nTherefore, the district court reasoned that the Insurance Company\n\nmust have intended \"decay\" to mean something broader than rot.\n\nId. at 236-37.\n\n We agree with the district court's decision, although\n\nnot its reasoning. As used in the Policy, the word \"decay\" could\n\nplausibly be read to mean either \"progressive decline\" or \"rot.\"\n\nAccordingly, its meaning is ambiguous and that ambiguity must be\n\n\n\n\n - 13 -\n\fresolved in the Church's favor.3 See U.S. Liab. Ins. Co., 797 F.3d\n\nat 119-21; Allmerica Fin. Corp. v. Certain Underwriters at Lloyd's,\n\nLondon, 449 Mass. 621, 628 (2007). On that basis alone, we affirm\n\nthe district court's judgment.\n\n We note that other courts have resolved this issue in\n\nthe same way. For example, in Stamm Theatres, Inc. v. Hartford\n\nCas. Ins. Co., 93 Cal. App. 4th 531, 535 (2001), the ceiling in\n\nthe insured's theater \"was in a state of 'imminent collapse.'\"\n\nSeveral wooden trusses supporting the ceiling had cracked\n\n\"completely through.\" Id. at 536. The theater produced an expert\n\nwho attributed the cracks to, inter alia, \"the increased load\n\ncreated by a partial reroofing.\" Id. The insurer produced experts\n\nwho similarly concluded that the cracks were caused by excessive\n\npressure on the trusses. Id. at 537. Considering an insurance\n\npolicy that, like the Policy in question here, covered losses\n\nattributable to \"hidden decay,\" the California Court of Appeals\n\nrejected the insurer's argument that the definition of \"decay\"\n\nshould be limited to organic rot. Id. at 538-41. In doing so,\n\nthe court stated that the insurer's failure to define \"decay,\"\n\ncoupled with the existence of multiple dictionary definitions of\n\n\n\n\n 3 Neither party argued that the term was ambiguous at the\ndistrict court. However, on appeal, the Church appears to have\nraised an ambiguity argument.\n\n\n - 14 -\n\fthe term, created an ambiguity that must be resolved in favor of\n\nthe insured.4 Id. at 543.\n\n The Insurance Company raises a variety of arguments in\n\nresponse, none of which are availing. First, it suggests that the\n\ncases the district court relied upon were inapposite because the\n\n\"'decay' that was the actual subject of each [case] was uniformly,\n\nand more narrowly, associated with a discrete physical impairment\n\nto the material quality of a component of the collapsed property.\"\n\nHowever, that argument does nothing to refute the core holding of\n\nthe cited cases -- namely, that those \"physical impairments\" were\n\ncovered because they fell within a broader definition of \"decay\"\n\nthat included gradual degradation.\n\n\n\n\n 4 It is also a principle that contract terms should be\nconstrued in their plain and ordinary meaning. AIG Prop. Cas.\nCo., 892 F.3d at 27. While \"decay\" has a definition connoting\n\"rot\" in the biological sciences, other courts have found that its\n\"'ordinary, plain meaning' [] encompasses a 'generalized\ndefinition of decomposition.'\" Joy Tabernacle—The New Testament\nChurch v. State Farm Fire and Cas. Co., 616 F. App'x 802, 809 (6th\nCir. 2015) (unpublished) (quoting Hani & Ramiz, Inc. v. North\nPointe Ins. Co., No. 316453, 2014 WL 523492, at *3 (Mich. Ct. App.\nFeb. 4, 2014) (unpublished per curiam opinion)); accord Quality\nTime, Inc. v. West Bend Mut. Ins. Co., No. 12-1008-JTM, 2013 WL\n474289, at *13 (D. Kan. Feb. 7, 2013) (\"Because the term decay\nmay, consistent with popular understanding, be construed to mean\ngradual deterioration or degradation, without organic\ndecomposition, this is how the court construes the term here.\");\nNe. Ctr. Inc. v. St. Paul Fire and Marine Ins. Co., No. 03-246-\nTS, 2006 WL 842396, at *5 (N.D. Ind. Mar. 28, 2006) (concluding\nthat \"decay\" \"is not ordinarily understood to mean only 'rot,'\"\nbut rather connotes \"a progressive failure in strength or\nsoundness\" or \"wasting and wearing away.\").\n\n\n - 15 -\n\f Second, the Insurance Company complains that the\n\ndistrict court's chosen definition would encompass all collapses,\n\nbecause \"it is difficult to imagine any collapse, of any structure,\n\nbeing caused by something other than 'decay.'\" But, even if the\n\nInsurance Company did not intend to provide coverage for collapses\n\nlike the one in question, that is a self-inflicted problem. The\n\nInsurance Company, which wrote the Policy, could simply have\n\ndefined \"decay\" narrowly or limited the coverage period. Despite\n\nthe Insurance Company's protestations, our interpretation of the\n\nPolicy would not result in coverage for all collapses. As the\n\ndistrict court correctly noted, \"[t]he insured still has to prove\n\nthat one of the . . . enumerated causes of loss contributed to the\n\ncollapse, and where an insured relies on hidden decay, the insured\n\nstill has to show a gradual deterioration or decline in strength\n\nor soundness that was not apparent to the insured.\" Easthampton,\n\n322 F. Supp. 3d at 241.\n\n Finally, the Insurance Company argues that the district\n\ncourt's decision \"cannot be reconciled with [the First Circuit's]\n\nopinion in Parker v. Worcester Ins. Co., 247 F.3d 1 (1st Cir.\n\n2001).\" In that case, the plaintiff homeowner obtained homeowner's\n\ninsurance shortly after acquiring her Connecticut home. Parker,\n\n247 F.3d at 2. Soon after moving in, she noticed hairline cracks\n\nin the concrete walls of the basement but disregarded them as\n\ncosmetic. Id. Approximately ten years later, she \"noticed that\n\n\n - 16 -\n\fthe cracks were growing larger,\" threatening the home's\n\nfoundation, and filed a claim for collapse with the defendant\n\ninsurer.5 Id. The insurer denied coverage based on an engineering\n\nreport which concluded that the cracks were caused by \"defective\n\nconcrete\" and \"high lateral earth pressures due to poor drainage.\"\n\nId. at 3.\n\n The district court granted summary judgment for the\n\ninsurer, finding that the claim was time-barred. Id. at 3-4. This\n\ncourt reversed, concluding that the Connecticut Supreme Court6\n\nwould likely toll the limitations period until \"the point of real\n\nor imputed knowledge of such a threat [of loss].\" Id. at 5.\n\nHowever, in dicta, the decision expressed skepticism as to the\n\nmerits of the claim, cautioning that the policy excluded coverage\n\nfor loss \"due to faulty construction of the foundation.\" Id. at\n\n6. While there was a coverage provision for \"hidden decay,\" the\n\ndecision also stated that \"'decay' is not a backdoor to coverage\n\nfor poor construction materials and workmanship.\" Id.\n\n Here, because the second and third layers of the ceiling\n\nwere never fastened to the joists, the Insurance Company argues\n\n\n 5In Connecticut, a property owner may file a claim for\ncollapse \"as soon as structural integrity is substantially\nimpaired.\" Parker, 247 F.3d at 4 (citing Beach v. Middlesex Mut.\nAssurance Co., 532 A.2d 1297, 1300-01 (Conn. 1987)).\n 6In Parker, although the case was filed in Massachusetts,\nthe parties agreed that Connecticut law controlled. 247 F.3d at\n3.\n\n\n - 17 -\n\fthat the collapse was attributable to defective workmanship and\n\nthat the above-quoted dicta from Parker compels reversal. It\n\nargues that to do otherwise would be to \"sneak in through the\n\nbackdoor of coverage in the guise of 'hidden decay.'\" In support,\n\nthe Insurance Company claims that \"[t]he policy language in the\n\ntwo [cases] is essentially the same.\"\n\n Even ignoring the fact that the cited language was dicta,\n\nwhich is not binding, there are important distinctions between\n\nParker and this case. In Parker, the insurer limited coverage for\n\ncollapses attributable to \"defective material or methods\" only to\n\nsituations where the collapse occurred \"during construction.\" 247\n\nF.3d at 6. By contrast, in this case, the Insurance Company\n\nexplicitly granted coverage for collapses occurring after\n\nconstruction, provided the collapse was caused in part by hidden\n\ndecay. Moreover, in Parker, because the concrete that caused the\n\ncollapse was defective to begin with, it was doubtful that it\n\n\"could be called 'decay,'\" so the hidden decay provision was\n\ninapplicable. Id. at 6. Here, even assuming that the ceiling as\n\nput together at the time of collapse was defective, the Malo report\n\nestablishes that the cause of the collapse was the progressive\n\nweakening of the smooth nails connecting the first layer of the\n\nceiling to the joists. Our holding is not inconsistent with\n\nParker.\n\n\n\n\n - 18 -\n\f IV. Conclusion\n\n Because ambiguities in the Policy result in coverage for\n\nthe collapse, we need not consider the application of the general\n\nexclusions. For the foregoing reasons, the judgment of the\n\ndistrict court is AFFIRMED. Costs are awarded to the Church.\n\n\n\n\n - 19 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4370545/", "author_raw": "STAHL, Circuit Judge"}]} | LYNCH | SOUTER | STAHL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4593292/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: EASTHAMPTON CONGREGATIONAL CHURCH, Plaintiff, Appellee, v. CHURCH MUTUAL INSURANCE COMPANY, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 18-1881\n\n EASTHAMPTON CONGREGATIONAL CHURCH,\n\n Plaintiff, Appellee,\n\n v.\n\n CHURCH MUTUAL INSURANCE COMPANY,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Katherine A. Robertson, Magistrate Judge]\n\n\n Before\n\n Lynch, Circuit Judge,\n Souter, Associate Justice,*\n and Stahl, Circuit Judge.\n\n\n John Egan, with whom Rubin and Rudman, LLP was on brief, for\nappellant.\n William P. Rose, with whom Melick & Porter LLP was on brief,\nfor appellee.\n\n\n February 22, 2019\n\n\n\n\n * Hon. David H. Souter, Associate Justice (Ret.) of the\nSupreme Court of the United States, sitting by designation.\n\f STAHL, Circuit Judge. This appeal requires the\n\ninterpretation of words and terms in an insurance policy.\n\nPlaintiff-Appellee Easthampton Congregational Church (the\n\n\"Church\") had a property insurance policy (the \"Policy\") with\n\nDefendant-Appellant Church Mutual Insurance Company (the\n\n\"Insurance Company\"). On April 25, 2016, the ceiling in one\n\nsection of the Church collapsed. The Church filed a claim pursuant\n\nto the Policy, which the Insurance Company denied. The Church\n\nthen filed suit, seeking a declaratory judgment that the claim was\n\ncovered. On cross-motions for summary judgment, the district court\n\nruled for the Church. Noting that the Policy did not define the\n\nword \"decay,\" the court adopted a dictionary definition of the\n\nword and used that definition to conclude that the Policy provided\n\ncoverage. We affirm, albeit for different reasons.\n\n I. Factual Background\n\n A. The Insurance Policy\n\n The Policy was in effect at the time of the collapse and\n\ncarries a coverage limit of $5,353,000. The parties agree that\n\nthe damaged section of the Church, Fellowship Hall, \"is among the\n\n[covered] premises described in the [P]olicy's Declarations Page.\"\n\n The coverage provisions are governed by two primary\n\nforms. The first is the \"Building and Personal Property Coverage\n\nForm,\" which covers \"direct physical loss of or damage to Covered\n\nProperty . . . caused by or resulting from any Covered Cause of\n\n\n - 2 -\n\fLoss.\" The second is the \"Causes of Loss - Special Form.\" That\n\nform sets forth various exclusions and limitations in Sections B\n\nand C, respectively.\n\n The Insurance Company argues that two exclusionary\n\nclauses are relevant to this case. First, in Section B-2(d), the\n\nPolicy includes a \"Wear and Tear Exclusion\" which states:\n\n We will not pay for loss or damage caused by\n or resulting from any of the following:\n\n . . .\n\n d. (1) Wear and tear;\n (2) Rust, or other corrosion, decay,\n deterioration, hidden or latent\n defect, or any quality in property\n that causes it to damage or destroy\n itself;[1]\n\nSecond, in Section B-3(c), the Policy includes a \"Faulty\n\nConstruction Exclusion\" which excludes coverage for:\n\n loss or damage caused by or resulting from any\n of the following [sections] but if an excluded\n cause of loss that is listed in [the following\n sections] results in a Covered Cause of Loss,\n we will pay for the loss or damage caused by\n that Covered Cause of Loss.\n\n . . .\n\n c. Faulty, inadequate, or defective:\n\n . . .\n\n\n\n 1 The Insurance Company did not cite the exclusions for \"wear\nand tear\" and for \"any quality in property that causes it to damage\nor destroy itself\" in its letters to the Church denying coverage,\nthough it did raise them before the district court.\n\n\n - 3 -\n\f (2) Design, specifications,\n workmanship, repair, construction,\n renovation, remodeling, grading,\n compaction;\n (3) Materials used in repair,\n construction, renovation, or\n remodeling; or\n (4) Maintenance;\n\n of part or all of any property on or off\n the described premises.\n\n In Section B-2(j), the Policy also includes a \"Collapse\n\nExclusion\" which excludes coverage for:\n\n Collapse, except as provided below in the\n Additional Coverage - Collapse [provision].\n But if collapse results in a Covered Cause of\n Loss at the described premises, we will pay\n for the loss or damage caused by that Covered\n Cause of Loss.\n\nThe Additional Coverage - Collapse provision, Section D-2, in turn\n\nstates:\n\n The term Covered Cause of Loss includes the\n Additional Coverage - Collapse as described\n and limited in [the sections] below.\n\n 1. With respect to buildings:\n\n a. Collapse means an abrupt falling\n down or caving in of a building or\n any part of a building with the\n result that the building or part of\n the building cannot be occupied for\n its intended purpose;\n\n . . .\n\n 2. We will pay for direct physical loss or\n damage to Covered Property, caused by\n collapse of a [Covered Property] . . . if\n the collapse is caused by one or more of\n the following:\n\n\n - 4 -\n\f . . .\n\n b. Decay that is hidden from view,\n unless the presence of such decay is\n known to an insured prior to\n collapse;\n\n . . .\n\n f. Use of defective material or methods\n in construction, remodeling, or\n renovation if the collapse occurs\n during the course of the\n construction, remodeling, or\n renovation. However, if the\n collapse occurs after construction,\n remodeling, or renovation is\n complete and is caused in part by a\n cause of loss listed in [the\n previous sections]; we will pay for\n the loss or damage even if use of\n defective material or methods, in\n construction, remodeling, or\n renovation, contributes to the\n collapse.\n\nTherefore, although Section B-2(j) excludes coverage for collapses\n\ngenerally, Section D-2 effectively reinstates coverage under\n\nlimited circumstances, including where the collapse was caused in\n\npart by \"[d]ecay that is hidden from view.\" It is noted that the\n\nPolicy does not define the word \"decay.\"\n\n B. The Ceiling Collapse\n\n On April 25, 2016, the ceiling in the Fellowship section\n\nof the Church fell to the floor. The Church promptly reported the\n\nincident to the Insurance Company. Eight days later, at the\n\nrequest of the Insurance Company, forensic engineer Joseph Malo\n\n\n\n - 5 -\n\finspected the ceiling collapse and detailed his findings in a\n\nwritten report. The parties accepted the contents of Malo's report\n\nas \"agreed material facts.\"\n\n In that report, Malo wrote that the ceiling \"consist[ed]\n\nof three different types of materials installed one over the other\n\nwith a total thickness of approximately 3 [and] 3/4 inches.\" \"The\n\noriginal ceiling [was] constructed with wood lath and plaster\n\nattached to boards\" spaced twelve inches apart. The boards\n\nthemselves \"were attached to the ceiling joists\" by \"cut nails\n\nwith approximately 1 [and] 3/4-inch penetration.\" Although the\n\nboards were nailed to the joists, the wood lath and plaster were\n\nattached only to the boards. Sometime after the original ceiling\n\nwas constructed, two more ceiling layers were installed. The\n\nsecond layer consisted of drywall affixed to boards, which were\n\nthen nailed directly into the plaster. The third layer consisted\n\nof ceiling tiles that were attached directly to the surface of the\n\ndrywall. Neither the second nor third layers were attached to the\n\nceiling joists. In addition, there was approximately ten inches\n\nof insulation blown into the space above the ceiling. Therefore,\n\nthe only support for the three layers of ceiling materials and\n\ninsulation was the original nails that fastened the first layer of\n\nboards to the ceiling joists.\n\n Malo concluded that \"nail withdrawal\" by the smooth\n\nnails used to secure the original boards to the joists caused the\n\n\n - 6 -\n\fceiling collapse. He observed that \"cyclical volumetric changes\n\ninduce[d] by normal temperature and moisture changes in the\n\nbuilding materials\" had caused the nails' connection to the joists\n\nto weaken. Eventually, the nails completely pulled out, \"leaving\n\nonly holes in the bottoms of the ceiling joists.\" In other words,\n\nthe collapse was caused by the \"progressive failure of the\n\nfasteners used to attach the layers of ceiling to the ceiling\n\njoists due to the weight of the ceiling.\"\n\n C. Denial of Coverage\n\n On May 19, 2016, the Insurance Company denied the\n\nChurch's claim, relying on Malo's report. As relevant here, the\n\nInsurance Coverage cited the Faulty Construction Exclusion,\n\nstating that \"[t]he fasteners used to uphold the ceiling were\n\ninadequate for the size/weight of the ceiling, and the ceiling\n\nsystem was not adequately fastened to the structure.\" The Church\n\nasked the Insurance Company to reconsider its decision, arguing\n\nthat the collapse was covered under the Additional Coverage -\n\nCollapse provision. However, on July 1, 2016, the Insurance\n\nCompany denied the reconsideration request.\n\n On September 26, 2016, the Church, through counsel, sent\n\nthe Insurance Company a letter detailing its position that the\n\nloss caused by the ceiling collapse was a covered event under the\n\nPolicy. The Church disputed the application of the Faulty\n\nConstruction Exclusion, claiming that because the ceiling lasted\n\n\n - 7 -\n\fapproximately sixty years, its construction was \"entirely\n\neffective.\" In addition, the Church argued that the collapse was\n\ncaused by hidden decay and so was covered by the Additional\n\nCoverage - Collapse provision. It noted that Malo's report\n\nconcluded that the collapse occurred because of nail withdrawal,\n\nwhich was a \"progressive failure\" that \"could have taken a period\n\nof years to occur.\"\n\n The Insurance Company replied by letter through counsel\n\non October 21, 2016, reiterating its prior position that the\n\ncollapse occurred because of \"faulty construction.\"\n\nSpecifically, it argued that Malo's report concluded that the\n\nceiling's construction was flawed because the second and third\n\nlayers were not securely fastened to the ceiling joists. The\n\nletter also rejected the Church's allegation that hidden decay\n\ncontributed to the collapse.\n\n II. Procedural Background\n\n The Church filed suit in Massachusetts Superior Court in\n\nApril 2017 seeking a declaratory judgment that the Policy provided\n\ncoverage for the collapse. The Insurance Company timely removed\n\nthe case to federal court based on diversity jurisdiction.2 Both\n\n\n\n\n 2 The Church is an organization located in Easthampton,\nMassachusetts; the Insurance Company is a corporation with its\nprincipal place of business in Merrill, Wisconsin; and the amount\nin controversy exceeds $75,000.\n\n\n - 8 -\n\fparties consented to have the case heard by a magistrate judge and\n\nfiled cross-motions for summary judgment.\n\n On May 10, 2018, the district court granted summary\n\njudgment for the Church. Easthampton Congregational Church v.\n\nChurch Mut. Ins. Co., 322 F. Supp. 3d 230 (D. Mass. 2018). The\n\ncourt concluded that the collapse resulted at least in part from\n\n\"hidden decay\" such that the Additional Coverage - Collapse\n\nprovision applied. Id. at 235-41. After noting that the Policy\n\nfailed to define \"decay,\" the court looked to dictionary\n\ndefinitions of that term and adopted a definition that encompassed\n\n\"a gradual deterioration or decline in strength or soundness.\"\n\nId. at 236-37. From there, the court held that there was\n\nsufficient evidence (i.e., the Malo report) to show that the\n\ncollapse \"was 'caused in part' by 'decay'\" \"hidden from view\" --\n\nnamely, the gradual nail withdrawal. Id. at 236-38. Accordingly,\n\nit held that the collapse fell within the Additional Coverage -\n\nCollapse provision. Id. Because that provision expressly provided\n\ncoverage, the court declined to address the Insurance Company's\n\narguments that the Wear and Tear and Faulty Construction Exclusions\n\napplied. Id. at 241-42. This timely appeal followed.\n\n III. Analysis\n\n A. Legal Framework\n\n We review the district court's grant of summary judgment\n\nde novo. AJC Int'l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3\n\n\n - 9 -\n\f(1st Cir. 2015). \"Cross motions [for summary judgment] simply\n\nrequire us to determine whether either of the parties deserves\n\njudgment as a matter of law on facts that are not disputed.\"\n\nLittlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir. 2004)\n\n(quotation marks and citation omitted).\n\n \"Because this case is brought in diversity jurisdiction,\n\nwe must look to state law for the substantive rules of decision.\"\n\nSanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016)\n\n(citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)). The\n\nparties agree that Massachusetts law controls the disposition of\n\nthis case. See Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st\n\nCir. 2011) (\"In determining which state's law applies, a diversity\n\ncourt is free to honor the parties' reasonable agreement.\").\n\n \"[T]he construction of an insurance policy is a question\n\nof law . . . .\" Lind-Hernández v. Hosp. Episcopal San Lucas\n\nGuayama, 898 F.3d 99, 103 (1st Cir. 2018) (internal quotation marks\n\nand citation omitted). \"Under Massachusetts law, we construe an\n\ninsurance policy under the general rules of contract\n\ninterpretation, beginning with the actual language of the\n\npolicies, given its plain and ordinary meaning.\" AIG Prop. Cas.\n\nCo. v. Cosby, 892 F.3d 25, 27 (1st Cir. 2018) (internal quotation\n\nmarks, alterations, and citation omitted).\n\n As a general matter, in Massachusetts, the insured bears\n\nthe \"initial burden of showing that the case involves a generally\n\n\n - 10 -\n\fcovered risk under the policy.\" Stor/Gard, Inc. v. Strathmore\n\nIns. Co., 717 F.3d 242, 247 (1st Cir. 2013) (citation omitted).\n\nWhere, as is here, the parties do not dispute that the incident\n\nwas a generally covered risk, the burden shifts such that the\n\ninsurer must demonstrate that an exclusion precludes coverage.\n\nClark Sch. for Creative Learning, Inc. v. Phila. Indem. Ins. Co.,\n\n734 F.3d 51, 55 & n.1 (1st Cir. 2013). \"And if the insurer\n\nsatisfies that burden, the burden shifts back to the insureds to\n\nshow an exception to the exclusion holds sway.\" Stor/Gard, Inc.,\n\n717 F.3d at 247 (citation omitted).\n\n However, where \"a term is 'susceptible of more than one\n\nmeaning and reasonably intelligent persons would differ as to which\n\nmeaning is the proper one,' the term is ambiguous.\" U.S. Liab.\n\nIns. Co. v. Benchmark Constr. Servs., Inc., 797 F.3d 116, 119-20\n\n(1st Cir. 2015) (quoting Citation Ins. Co. v. Gomez, 426 Mass.\n\n379, 381 (1998)). To the extent an ambiguity does exist, it is\n\nstrictly construed against the insurer. See Metro. Prop. & Cas.\n\nIns. Co. v. Morrison, 460 Mass. 352, 362-63 (2011).\n\n It is also a principle of Massachusetts law that \"[m]ore\n\nspecific contract terms ordinarily control over more general\n\ncontract terms.\" Davis v. Dawson, Inc., 15 F. Supp. 2d 64, 109\n\n(D. Mass. 1998) (citing Lawson v. Fed. Deposit Ins. Corp., 3 F.3d\n\n11, 17 (1st Cir. 1993)). Therefore, if a policy provision is found\n\n\n\n\n - 11 -\n\fto provide for coverage, then general exclusion clauses are\n\ninapplicable. See id.\n\n B. Definition of \"Decay\"\n\n The parties agree that we must first determine whether\n\nthe hidden decay section of the Additional Coverage - Collapse\n\nprovision applies. If the ceiling collapse is covered by that\n\nsection, or if the language is ambiguous with respect to coverage,\n\nthen the general Faulty Construction and Wear and Tear Exclusions\n\nare inapplicable. The parties further agree that the nail\n\nwithdrawal was \"hidden,\" so that the disposition of this case turns\n\nat the outset on the definition and application of the word\n\n\"decay.\"\n\n As we have said, the Policy does not define \"decay.\" In\n\nsuch circumstances, \"courts often look to dictionaries for\n\nassistance in determining ordinary meaning.\" Fed. Ins. Co. v.\n\nRaytheon Co., 426 F.3d 491, 498-99 (1st Cir. 2005) (citation\n\nomitted). Here, the district court consulted two dictionaries.\n\nEasthampton, 322 F. Supp. 3d at 236. First, it looked to the\n\nMerriam-Webster Dictionary, which defined \"decay\" (in noun form)\n\nas a \"gradual decline in strength, soundness, or prosperity or in\n\ndegree of excellence or perfection,\" \"a wasting or wearing away,\"\n\nand a \"rot . . . specifically[,] aerobic decomposition of proteins\n\nchiefly by bacteria.\" Decay, Merriam-Webster Dictionary,\n\navailable at https://www.merriam-webster.com/dictionary/decay.\n\n\n - 12 -\n\fSecond, it turned to the Oxford English Dictionary, which defined\n\n\"decay\" as \"[t]he process of falling off from a prosperous or\n\nthriving condition; progressive decline; the condition of one who\n\nhas thus fallen off or declined,\" \"falling off (in quantity,\n\nvolume, intensity, etc.); dwindling, decrease,\" and \"the\n\ndestructive decomposition or wasting of organic tissue; rotting.\"\n\nDecay, Oxford English Dictionary, available at\n\nhttp://www.oed.com/view/Entry/48067?rskey=z7ljDr& result=1#eid.\n\n The district court held that \"[t]he most reasonable\n\nreading of the word 'decay' as it is used in the Policy is that it\n\nrefers to the broader concept of the word.\" Easthampton, 322 F.\n\nSupp. 3d at 236. That is, a \"gradual decline in strength\" or\n\n\"progressive decline\" as opposed to a narrower definition that\n\nentails organic rotting. Id. at 236-37. In support, it noted\n\nthat the Policy used the word \"rot\" in a separate exclusion titled\n\n\"'Fungus,' Wet Rot, Dry Rot and Bacteria.\" Id. at 236.\n\nTherefore, the district court reasoned that the Insurance Company\n\nmust have intended \"decay\" to mean something broader than rot.\n\nId. at 236-37.\n\n We agree with the district court's decision, although\n\nnot its reasoning. As used in the Policy, the word \"decay\" could\n\nplausibly be read to mean either \"progressive decline\" or \"rot.\"\n\nAccordingly, its meaning is ambiguous and that ambiguity must be\n\n\n\n\n - 13 -\n\fresolved in the Church's favor.3 See U.S. Liab. Ins. Co., 797 F.3d\n\nat 119-21; Allmerica Fin. Corp. v. Certain Underwriters at Lloyd's,\n\nLondon, 449 Mass. 621, 628 (2007). On that basis alone, we affirm\n\nthe district court's judgment.\n\n We note that other courts have resolved this issue in\n\nthe same way. For example, in Stamm Theatres, Inc. v. Hartford\n\nCas. Ins. Co., 93 Cal. App. 4th 531, 535 (2001), the ceiling in\n\nthe insured's theater \"was in a state of 'imminent collapse.'\"\n\nSeveral wooden trusses supporting the ceiling had cracked\n\n\"completely through.\" Id. at 536. The theater produced an expert\n\nwho attributed the cracks to, inter alia, \"the increased load\n\ncreated by a partial reroofing.\" Id. The insurer produced experts\n\nwho similarly concluded that the cracks were caused by excessive\n\npressure on the trusses. Id. at 537. Considering an insurance\n\npolicy that, like the Policy in question here, covered losses\n\nattributable to \"hidden decay,\" the California Court of Appeals\n\nrejected the insurer's argument that the definition of \"decay\"\n\nshould be limited to organic rot. Id. at 538-41. In doing so,\n\nthe court stated that the insurer's failure to define \"decay,\"\n\ncoupled with the existence of multiple dictionary definitions of\n\n\n\n\n 3 Neither party argued that the term was ambiguous at the\ndistrict court. However, on appeal, the Church appears to have\nraised an ambiguity argument.\n\n\n - 14 -\n\fthe term, created an ambiguity that must be resolved in favor of\n\nthe insured.4 Id. at 543.\n\n The Insurance Company raises a variety of arguments in\n\nresponse, none of which are availing. First, it suggests that the\n\ncases the district court relied upon were inapposite because the\n\n\"'decay' that was the actual subject of each [case] was uniformly,\n\nand more narrowly, associated with a discrete physical impairment\n\nto the material quality of a component of the collapsed property.\"\n\nHowever, that argument does nothing to refute the core holding of\n\nthe cited cases -- namely, that those \"physical impairments\" were\n\ncovered because they fell within a broader definition of \"decay\"\n\nthat included gradual degradation.\n\n\n\n\n 4 It is also a principle that contract terms should be\nconstrued in their plain and ordinary meaning. AIG Prop. Cas.\nCo., 892 F.3d at 27. While \"decay\" has a definition connoting\n\"rot\" in the biological sciences, other courts have found that its\n\"'ordinary, plain meaning' [] encompasses a 'generalized\ndefinition of decomposition.'\" Joy Tabernacle—The New Testament\nChurch v. State Farm Fire and Cas. Co., 616 F. App'x 802, 809 (6th\nCir. 2015) (unpublished) (quoting Hani & Ramiz, Inc. v. North\nPointe Ins. Co., No. 316453, 2014 WL 523492, at *3 (Mich. Ct. App.\nFeb. 4, 2014) (unpublished per curiam opinion)); accord Quality\nTime, Inc. v. West Bend Mut. Ins. Co., No. 12-1008-JTM, 2013 WL\n474289, at *13 (D. Kan. Feb. 7, 2013) (\"Because the term decay\nmay, consistent with popular understanding, be construed to mean\ngradual deterioration or degradation, without organic\ndecomposition, this is how the court construes the term here.\");\nNe. Ctr. Inc. v. St. Paul Fire and Marine Ins. Co., No. 03-246-\nTS, 2006 WL 842396, at *5 (N.D. Ind. Mar. 28, 2006) (concluding\nthat \"decay\" \"is not ordinarily understood to mean only 'rot,'\"\nbut rather connotes \"a progressive failure in strength or\nsoundness\" or \"wasting and wearing away.\").\n\n\n - 15 -\n\f Second, the Insurance Company complains that the\n\ndistrict court's chosen definition would encompass all collapses,\n\nbecause \"it is difficult to imagine any collapse, of any structure,\n\nbeing caused by something other than 'decay.'\" But, even if the\n\nInsurance Company did not intend to provide coverage for collapses\n\nlike the one in question, that is a self-inflicted problem. The\n\nInsurance Company, which wrote the Policy, could simply have\n\ndefined \"decay\" narrowly or limited the coverage period. Despite\n\nthe Insurance Company's protestations, our interpretation of the\n\nPolicy would not result in coverage for all collapses. As the\n\ndistrict court correctly noted, \"[t]he insured still has to prove\n\nthat one of the . . . enumerated causes of loss contributed to the\n\ncollapse, and where an insured relies on hidden decay, the insured\n\nstill has to show a gradual deterioration or decline in strength\n\nor soundness that was not apparent to the insured.\" Easthampton,\n\n322 F. Supp. 3d at 241.\n\n Finally, the Insurance Company argues that the district\n\ncourt's decision \"cannot be reconciled with [the First Circuit's]\n\nopinion in Parker v. Worcester Ins. Co., 247 F.3d 1 (1st Cir.\n\n2001).\" In that case, the plaintiff homeowner obtained homeowner's\n\ninsurance shortly after acquiring her Connecticut home. Parker,\n\n247 F.3d at 2. Soon after moving in, she noticed hairline cracks\n\nin the concrete walls of the basement but disregarded them as\n\ncosmetic. Id. Approximately ten years later, she \"noticed that\n\n\n - 16 -\n\fthe cracks were growing larger,\" threatening the home's\n\nfoundation, and filed a claim for collapse with the defendant\n\ninsurer.5 Id. The insurer denied coverage based on an engineering\n\nreport which concluded that the cracks were caused by \"defective\n\nconcrete\" and \"high lateral earth pressures due to poor drainage.\"\n\nId. at 3.\n\n The district court granted summary judgment for the\n\ninsurer, finding that the claim was time-barred. Id. at 3-4. This\n\ncourt reversed, concluding that the Connecticut Supreme Court6\n\nwould likely toll the limitations period until \"the point of real\n\nor imputed knowledge of such a threat [of loss].\" Id. at 5.\n\nHowever, in dicta, the decision expressed skepticism as to the\n\nmerits of the claim, cautioning that the policy excluded coverage\n\nfor loss \"due to faulty construction of the foundation.\" Id. at\n\n6. While there was a coverage provision for \"hidden decay,\" the\n\ndecision also stated that \"'decay' is not a backdoor to coverage\n\nfor poor construction materials and workmanship.\" Id.\n\n Here, because the second and third layers of the ceiling\n\nwere never fastened to the joists, the Insurance Company argues\n\n\n 5In Connecticut, a property owner may file a claim for\ncollapse \"as soon as structural integrity is substantially\nimpaired.\" Parker, 247 F.3d at 4 (citing Beach v. Middlesex Mut.\nAssurance Co., 532 A.2d 1297, 1300-01 (Conn. 1987)).\n 6In Parker, although the case was filed in Massachusetts,\nthe parties agreed that Connecticut law controlled. 247 F.3d at\n3.\n\n\n - 17 -\n\fthat the collapse was attributable to defective workmanship and\n\nthat the above-quoted dicta from Parker compels reversal. It\n\nargues that to do otherwise would be to \"sneak in through the\n\nbackdoor of coverage in the guise of 'hidden decay.'\" In support,\n\nthe Insurance Company claims that \"[t]he policy language in the\n\ntwo [cases] is essentially the same.\"\n\n Even ignoring the fact that the cited language was dicta,\n\nwhich is not binding, there are important distinctions between\n\nParker and this case. In Parker, the insurer limited coverage for\n\ncollapses attributable to \"defective material or methods\" only to\n\nsituations where the collapse occurred \"during construction.\" 247\n\nF.3d at 6. By contrast, in this case, the Insurance Company\n\nexplicitly granted coverage for collapses occurring after\n\nconstruction, provided the collapse was caused in part by hidden\n\ndecay. Moreover, in Parker, because the concrete that caused the\n\ncollapse was defective to begin with, it was doubtful that it\n\n\"could be called 'decay,'\" so the hidden decay provision was\n\ninapplicable. Id. at 6. Here, even assuming that the ceiling as\n\nput together at the time of collapse was defective, the Malo report\n\nestablishes that the cause of the collapse was the progressive\n\nweakening of the smooth nails connecting the first layer of the\n\nceiling to the joists. Our holding is not inconsistent with\n\nParker.\n\n\n\n\n - 18 -\n\f IV. Conclusion\n\n Because ambiguities in the Policy result in coverage for\n\nthe collapse, we need not consider the application of the general\n\nexclusions. For the foregoing reasons, the judgment of the\n\ndistrict court is AFFIRMED. Costs are awarded to the Church.\n\n\n\n\n - 19 -\n[END_CASE]",
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8,443,881 | IN RE: the FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico, Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors, In re: the Financial Oversight and Management Board for Puerto Rico, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico, Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors | Méndez-Núñez v. Fin. Oversight & Mgmt. Bd. for P.R. (In re Fin. Oversight & Mgmt. Bd. for P.R.) | 2019-02-22 | No. 18-1773; No. 18-1777 | U.S. Court of Appeals for the First Circuit | {"judges": "Lynch", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415310/", "author_raw": ""}]} | LYNCH | LYNCH | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443881/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: IN RE: the FINANCIAL OVERSIGHT AND MANAGEMENT BOARD FOR PUERTO RICO, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico, Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors, In re: the Financial Oversight and Management Board for Puerto Rico, as Representative for the Commonwealth of Puerto Rico the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Highways and Transportation Authority the Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Electric Power Authority (PREPA) The Financial Oversight and Management Board for Puerto Rico, as Representative for the Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina The Financial Oversight and Management Board for Puerto Rico, as Representative for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico, Debtors. Thomas Rivera-Schatz, in His Official Capacity and on Behalf of the Senate of Puerto Rico, Carlos Méndez-Núñez, in His Official Capacity and on Behalf of the House of Representatives of Puerto Rico v. The Financial Oversight and Management Board for Puerto Rico Jose B. Carrion, III Andrew G. Biggs Carlos M. Garcia Arthur J. Gonzalez Jose R. Gonzalez Ana J. Matosantos David A. Skeel, Jr. Natalie A. Jaresko, Commonwealth of Puerto Rico Puerto Rico Sales Tax Financing Corporation, a/k/a Cofina Puerto Rico Highways and Transportation Authority Employees Retirement System of the Government of the Commonwealth of Puerto Rico Puerto Rico Electric Power Authority (PREPA), Debtors\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,594,151 | UNITED STATES of America, Appellee, v. Gregory OWENS, Defendant, Appellant. | United States v. Owens | 2019-02-26 | 16-1945P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Torruella, Thompson", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 16-1945\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n GREGORY OWENS,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n [Hon. Nancy Torresen, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n Sarah A. Churchill, with whom Nichols & Churchill, P.A., was\non brief, for appellant.\n John M. Pellettieri, Attorney, Appellate Section, Criminal\nDivision, U.S. Department of Justice, with whom Sangita K. Rao,\nAttorney, Appellate Section, Criminal Division, John P. Cronan,\nActing Assistant Attorney General, Criminal Division, Matthew S.\nMiner, Deputy Assistant Attorney General, Criminal Division,\nHalsey B. Frank, United States Attorney, Darcie McElwee, Assistant\nUnited States Attorney, and James W. Chapman, Assistant United\nStates Attorney, were on brief, for appellee.\n\n\n\n February 26, 2019\n\f TORRUELLA, Circuit Judge. This is a case about a double\n\nlife, an attempted uxoricide, and excellent police work.\n\nDefendant-Appellant Gregory Owens (\"Owens\") was convicted of\n\ninterstate domestic violence in violation of 18 U.S.C. § 2261(a)(1)\n\nand (b)(2); and discharge of a firearm during and in relation to\n\na crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).\n\nHe was sentenced to life in prison. On appeal, Owens challenges\n\nthe sufficiency of evidence supporting his convictions, the\n\nreasonableness of his sentence, and the district court's denial of\n\nhis pretrial motions seeking to suppress evidence and dismiss the\n\nindictment on double jeopardy grounds. After careful review, we\n\nfind Owens's convictions supported by sufficient evidence, his\n\nsentence substantively reasonable, and the motions for suppression\n\nand dismissal properly denied. Seeing no reason to vacate Owens's\n\nconvictions or sentence on the grounds that he has presented, we\n\naffirm.\n\n I. BACKGROUND\n\nA. Factual Background\n\n 1. The Home Invasion\n\n In the early morning hours of December 18, 2014, at\n\napproximately 2:45 a.m., Carol Chabot (\"Carol\") awoke to a\n\nshuffling noise coming from the downstairs of her two-story house\n\nin Saco, Maine. Sensing something was not right, she woke her\n\n\n -2-\n\fhusband, Steve Chabot (\"Steve\"), who lay beside her. Steve,\n\nhowever, did not hear the noise but told Carol \"it's probably\n\nRachel\" who caused the noise — with \"Rachel\" being Rachel Owens\n\n(\"Rachel\"), a family friend who was staying the night. Then Steve\n\nrolled over to go back to sleep. Undeterred, Carol got out of bed\n\nto investigate.\n\n As she walked down the upstairs hallway, toward the spare\n\nbedroom where Rachel was staying, Carol heard a second noise --\n\nthis time the loud sound of glass shattering. With haste, she\n\nlooked into the spare bedroom and noticed Rachel was sound asleep\n\nin bed. Steve also heard the loud noise and hurried out of bed to\n\ncheck what was going on. He peeked out of his bedroom towards the\n\nstaircase and saw an intruder racing up the stairs with a gun in\n\nhis right hand. The intruder, later identified as Owens, was\n\napproximately 5 feet 9 inches tall with a slim, athletic build; he\n\nwore dark clothing, gloves, and a black mask with a single opening\n\nat the eyes and glasses protruding from it.\n\n Steve shouted an expletive at the intruder and dashed\n\nback into the master bedroom. Carol, who did not see the intruder\n\nbut saw a look of horror on her husband's face, ran into a third\n\nbedroom used as a home office and barricaded herself inside. The\n\nintruder followed her and tried to force his way into the room,\n\nbut, after a few failed attempts, suddenly stopped. He then walked\n\n\n -3-\n\ftoward the room where Rachel lay and fired at her three times,\n\nhitting her in the head, arm, and torso.\n\n Having heard the gun shots, Steve peeked out of the\n\nmaster bedroom again. He saw the intruder about two feet away,\n\nheading towards him. They looked at each other face to face.\n\nSteve immediately slammed the door shut and held his arm against\n\nit. Undaunted, the intruder kicked the door in, looked inside\n\nthrough the now slightly-opened doorway, and fired shots through\n\nthe door, striking Steve in the arm, neck, and rib area.1 The\n\nintruder then abandoned the Chabot residence. He did not take any\n\nvaluables with him.\n\n 2. The Crime Scene\n\n In response to a 911 call from Steve Chabot received at\n\n2:47 a.m., police arrived at the Chabot residence. During their\n\ninvestigation of the crime scene, officers learned that the\n\nintruder gained entry into the garage through a door located in\n\nthe back of the house, and into the interior of the Chabot\n\nresidence through a door located in the garage that led to the\n\nkitchen. The upper part of this garage door was double-paned\n\nglass, sectioned into nine squares by wood framing. The intruder\n\n\n\n1 Both Rachel and Steve survived the incident, but it left Rachel\nwith a bullet lodged in her brain and severely limited use of her\nright hand.\n\n\n -4-\n\fbroke the outer pane of the lower left square of glass, leaving\n\nglass shards scattered on the floor and separating the inner pane,\n\nwhich remained intact, from the door, thereby creating a gap that\n\nallowed the intruder to reach in and unlock the deadbolt. Officers\n\nretrieved human hair from the area between the shattered outer\n\npane of glass and the inner pane of glass, and swabbed the area\n\nfor DNA.\n\n Police officers also recovered numerous .9mm shell\n\ncasings stamped \"WCC 1987,\" later identified as 27-year-old\n\nWestern Cartridge Company casings, from the second floor of the\n\nhouse.\n\n Finally, while inspecting the periphery of the Chabot\n\nresidence, officers found a footprint in the damp dirt outside the\n\nfirst-floor window near the garage and proceeded to make a cast of\n\nit.\n\n 3. Search, Intervention, and Interview\n\n At around 5:00 a.m., Maine police officers informed New\n\nHampshire law enforcement of the shooting at the Chabot residence.\n\nTwo New Hampshire police officers, Randy Dyer (\"Officer Dyer\") and\n\nKeith Lee (\"Officer Lee\"), were instructed to visit Owens's\n\nresidence in the town of Londonderry to verify the presence of his\n\ntwo vehicles. They were, however, instructed not to make contact\n\nwith Owens.\n\n\n -5-\n\f At approximately 5:20 a.m., the two police officers\n\narrived at Owens's neighborhood and parked their car at the\n\nbeginning of Winthrop Road, the dead-end street where Owens's\n\nresidence was located. Under the cover of darkness, they began\n\nheading down Winthrop Road toward the house. At around 5:24 a.m.,\n\nbefore the officers could reach their destination, a state trooper\n\npatrol car with flashing blue lights drove near the Owens\n\nresidence. Contemporaneously, a light visible from the house's\n\nfront windows went off, making the inside of the house go dark.\n\nThe officers stopped the trooper and instructed him to turn off\n\nthe flashing lights. After this, the officers, now accompanied by\n\nthe trooper, continued their approach towards the residence. With\n\nOfficer Lee and the trooper providing cover, Officer Dyer\n\neventually made his way into the driveway, where he placed his\n\nhand on Owens's Hyundai Santa Fe SUV (\"Owens's vehicle\") and\n\nnoticed its hood and grill were warm.2 The officers and trooper\n\nthen retreated back down Winthrop Road to the staging area.\n\n Several minutes after arriving at the staging area, the\n\nofficers saw Owens's vehicle exit Winthrop Road and proceeded to\n\n\n\n2 Owens's vehicle was parked on the upper part of his driveway,\nwith its nose facing the garage. The driveway is easily observable\nand accessible to anyone passing by in the neighborhood. It is\nnot enclosed in any way, nor does it have any fences or signs\nwarning visitors to stay away.\n\n\n -6-\n\ffollow it. The vehicle stopped at a nearby Circle K store, where\n\nOwens got out. The officers approached Owens and told him that\n\nhis wife had been shot. Owens acted surprised and complained of\n\nchest pains, after which the officers requested medical attention\n\nfor him. While waiting for the medical personnel to arrive, the\n\nofficers saw blood, a pair of boots with wet stains, and a computer\n\nhard drive inside Owens's vehicle. Owens agreed to go with the\n\nofficers to the police station for a videotaped interview (the\n\n\"police interview\") after receiving medical assistance.\n\n During the police interview, Owens provided a detailed\n\naccount of his night. Specifically, he explained, albeit with\n\nsome variation, that, after speaking to his wife Rachel at around\n\n9:15 p.m., he went to bed, but got up a few times to work on his\n\ncomputer on a proposal for a military consultancy contract with\n\nthe Ukrainian government that was due the next day. In particular,\n\nOwens claimed that at around 2:30 a.m. –- fifteen minutes before\n\nthe Chabot residence was broken into -- he sent an e-mail to one\n\nof his colleagues regarding a tweak to the proposal.\n\n Owens also admitted to leaving his home on multiple\n\noccasions throughout the course of the night and early morning:\n\nfirst, to Circle K at around 12:30 a.m. to get a soda and\n\ncigarettes; then, to Dunkin' Donuts between 4:15-4:45 a.m. to get\n\ncoffee and donuts; and finally, to Circle K again at around\n\n\n -7-\n\f6:30 a.m. to grab another cup of coffee, at which point he came in\n\ncontact with officers Dyer and Lee. Furthermore, he informed the\n\ninterviewing officers that he was a military retiree and had what\n\nhe described as an \"arsenal\" of weapons in his house. After\n\ncollecting some evidence (e.g., DNA samples from his hands and\n\nmouth, clothes, etc.), the police released Owens from custody.\n\n 4. The Double-Life and Motive\n\n To fully understand the motive behind Owens's crime, we\n\nmust look back to the preceding decade. In 2005, Owens met Betsy\n\nWandtke (\"Wandtke\"), a woman from Wisconsin, in a flight back from\n\na hunters' rights convention, which they had both attended.3 About\n\nthree years later, their relationship turned into an affair. As\n\nthe affair progressed, Owens and Wandtke began to spend more time\n\ntogether -- up to ten days a month. Owens considered Wandtke his\n\n\"lover\" and his \"life.\" He represented to her that he was in the\n\nprocess of divorcing Rachel, which Wandtke was unable to\n\nindependently confirm, given that it was not true. To partly\n\nexplain his long absences when he was actually with Rachel in New\n\nHampshire, Owens told Wandtke that his work as a military\n\nconsultant required him to travel and take part in covert missions\n\nin places like Afghanistan.\n\n\n\n3 From the moment they met, Wandtke was aware of Owens's marriage.\n\n\n -8-\n\f While the affair continued, in or about 2011, Rachel\n\nbegan to develop early-onset dementia. The responsibility of\n\nhaving to care for her burdened Owens, but did not deter him from\n\ncontinuing his affair with Wandtke. Then, on December 3, 2014,\n\nthe affair came to an abrupt end. Due to an inadvertent call from\n\nOwens's mobile phone, Wandtke discovered that Owens was leading a\n\ndouble-life -- his marriage with Rachel continued in regular\n\ncourse. Wandtke confronted Owens about it and told him their\n\nrelationship was over.4 After a failed attempt to convince Wandtke\n\nthat she misunderstood the conversation she overheard, Owens\n\npromised Wandtke he was going to make it up to her.\n\n A mere fifteen days after the breakup, the events at the\n\nChabot residence unfolded. Furthermore, in the days following the\n\nshooting, Owens contacted Wandtke via e-mail and told her that he\n\nwas being \"targeted\" because of his work and instructed her to \"go\n\ndark\" and not tell anyone about their relationship. Then, on\n\nDecember 31, 2014 -- thirteen days after the incident at the Chabot\n\nresidence and with his wife still recovering from a gunshot wound\n\n\n4 Owens was with Wandtke in Wisconsin a little over a week before\ntheir breakup. They had plans to celebrate Thanksgiving together.\nNotwithstanding, the weekend before the holiday, Owens suddenly\ncancelled their plans, leaving Wisconsin for a supposed emergency\ncovert mission in Afghanistan. Then, on December 3, 2014, Wandtke\nfound out that Owens was not in Afghanistan, but rather with Rachel\nin New Hampshire, as the result of the accidental call made from\nOwens's cell phone.\n\n\n -9-\n\fto the head -- Owens unexpectedly arrived at Wandtke's doorstep\n\nwith a limousine and roses. Owens and Wandtke celebrated New\n\nYear's Eve and spent time together during the first week of 2015.\n\nOn January 4, 2015, Owens returned to New Hampshire. Shortly\n\nthereafter, on January 11, 2015, Owens was arrested.\n\nB. Procedural Background\n\n On March 11, 2015, a grand jury indicted Owens on two\n\ncounts: interstate domestic violence (Count One) and discharge of\n\na firearm during and in relation to a crime of violence (Count\n\nTwo). On July 6, 2015, Owens filed a motion to dismiss the\n\nindictment on double jeopardy grounds; a motion to suppress\n\nevidence gathered as the result of the entry into his property,\n\nnamely, into his driveway; and, a motion to suppress search\n\nwarrants issued and executed during the investigation for his\n\nvehicles and house, electronic items (e.g., an iPhone, Magellan\n\nGPS, etc.), and an external hard drive and a laptop computer in a\n\nSwiss Army case.5 The district court held an evidentiary hearing\n\n\n5 Owens also moved to suppress DNA evidence obtained from a blood\nsample collected at the Chabot residence, and from a buccal swab\nlaw enforcement performed on his cheeks during the police\ninterview. Owens, however, eventually withdrew his motion as to\nthe blood sample collected from the Chabot residence.\nNotwithstanding, we note that a heading in his brief makes specific\nreference to the collection of the blood sample, which may be\ninterpreted to suggest his intent to still seek suppression of the\nDNA test results obtained therefrom. The Government attributes\nOwens's reference to the collection of the blood sample in the\nheading to human error. It asserts that the section with this\n\n -10-\n\fon Owens's motion to dismiss and motions to suppress. Evidence\n\nwas presented, including the testimony of the officer who touched\n\nOwens's vehicle, as well as that of the officers who drafted the\n\naffidavits on which the search warrants were based. Unpersuaded,\n\nthe district court denied Owens's motions to dismiss and to\n\nsuppress.\n\n A ten-day jury trial followed. The jury found Owens\n\nguilty of both counts. For these charges, the district court\n\nsentenced Owens to life imprisonment (240 Months on Count One and\n\nLife on Count Two). Owens timely appealed.\n\n II. ANALYSIS\n\nA. Motion to Suppress Evidence Gathered as a Result of Officer\n Dyer's Entry into the Driveway\n\n We review a district court's denial of a motion to\n\nsuppress scrutinizing its factual findings for clear error and its\n\nlegal conclusions de novo. United States v. Flores, 888 F.3d 537,\n\n543 (1st Cir. 2018) (citations omitted); United States v. Brown,\n\n\n\n\nheading actually deals with Owens's challenge to a search warrant\naffidavit that mentions DNA evidence obtained from Owens's police\ninterview buccal swab. See infra at 21-24. Based on the section's\ncontent, we agree. Neither there nor anywhere else in his brief\ndoes Owens develop an argument for suppression of the DNA test\nresults obtained from the collection of a blood sample at the\nChabot residence. Accordingly, Owens must \"forever hold [his]\npeace\" with the Government's use of this evidence. United States\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations and internal\nquotation marks omitted).\n\n\n -11-\n\f510 F.3d 57, 64 (1st Cir. 2007). To succeed on appeal, a defendant\n\n\"must show that no reasonable view of the evidence supports the\n\ndistrict court's decision.\" United States v. Dunbar, 553 F.3d 48,\n\n55 (1st Cir. 2009) (citations and internal quotation marks\n\nomitted).\n\n Owens argues that Officer Dyer's entry into his driveway\n\nand touching of his vehicle parked therein constituted an illegal\n\nsearch because the driveway formed part of his house's curtilage\n\nand, therefore, was protected from warrantless searches by the\n\nFourth Amendment. Accordingly, he sustains that the district court\n\nerred in denying the suppression of evidence obtained as a result\n\nof the search, namely, any reference to the temperature of his\n\nvehicle's hood and grill.\n\n The Fourth Amendment provides in relevant part that the\n\n\"right of the people to be secure in their persons, houses, papers,\n\nand effects, against unreasonable searches and seizures, shall not\n\nbe violated.\" U.S. Const. amend. IV. \"When the Government obtains\n\ninformation by physically intruding on persons, houses, papers, or\n\neffects, a search within the original meaning of the Fourth\n\nAmendment has undoubtedly occurred.\" Florida v. Jardines, 569\n\nU.S. 1, 5 (2013) (citations and internal quotation marks omitted).\n\n For Fourth Amendment purposes, a house's curtilage is\n\n\"the area immediately surrounding and associated with the home.\"\n\n\n -12-\n\fId. at 6 (citation and internal quotation marks omitted). \"The\n\nprotection afforded [to a house's] curtilage is essentially a\n\nprotection of families and personal privacy in an area intimately\n\nlinked to the home, both physically and psychologically, where\n\nprivacy expectations are most heightened.\" California v. Ciraolo,\n\n476 U.S. 207, 212–13 (1986). Therefore, \"[w]hen a law enforcement\n\nofficer physically intrudes on the curtilage to gather evidence,\n\na search within the meaning of the Fourth Amendment has occurred.\n\n. . . Such conduct thus is presumptively unreasonable absent a\n\nwarrant.\" Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)\n\n(citation omitted).\n\n In determining whether a specific part of a house falls\n\nwithin its curtilage, we consider:\n\n [1] the proximity of the area claimed to be curtilage to\n the home, [2] whether the area is included within an\n enclosure surrounding the home, [3] the nature of the\n uses to which the area is put, and [4] the steps taken\n by the resident to protect the area from observation by\n people passing by.6\n\nBrown, 510 F.3d at 65 (alterations in original) (quoting United\n\nStates v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002) (quoting United\n\nStates v. Dunn, 480 U.S. 294, 301 (1987))). In the instant case,\n\n\n\n6 These factors are eponymously called the Dunn factors after the\nSupreme Court's seminal opinion in United States v. Dunn, 480 U.S.\n294 (1987). See, e.g., United States v. Bain, 874 F.3d 1, 14 (1st\nCir. 2017).\n\n\n -13-\n\fhowever, we need not address these factors given that, even\n\nassuming that the driveway formed part of the house's curtilage,\n\nOfficer Dyer faced exigent circumstances when he entered the\n\ndriveway and placed his hand on Owens's vehicle, which\n\ncircumscribes his warrantless search within the bounds of the\n\nFourth Amendment. We explain.\n\n Although generally a warrant must be secured before\n\nsearching a home and its curtilage, \"the warrant requirement is\n\nsubject to certain reasonable exceptions.\" Kentucky v. King\n\n(King), 563 U.S. 452, 459 (2011) (citation omitted). These\n\nexceptions are born out of courts' need to \"balance the privacy-\n\nrelated and law enforcement-related concerns to determine if the\n\nintrusion was reasonable\" under the Fourth Amendment. Maryland v.\n\nKing, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531\n\nU.S. 326, 331 (2001)). \"One well-recognized exception applies\n\nwhen 'the exigencies of the situation make the needs of law\n\nenforcement so compelling that [a] warrantless search is\n\nobjectively reasonable under the Fourth Amendment.'\" King, 563\n\nU.S. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978));\n\nsee also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016)\n\n(\"The exigent circumstances exception allows a warrantless search\n\nwhen an emergency leaves police insufficient time to seek a\n\nwarrant.\" (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))).\n\n\n -14-\n\fThis exception, commonly known as the \"exigent circumstances\n\nexception,\" has been applied in instances where the \"need 'to\n\nprevent the imminent destruction of evidence'\" justifies a\n\nwarrantless search. King, 563 U.S. at 460 (citing Brigham City,\n\nUtah v. Stuart, 547 U.S. 398, 403 (2006)).\n\n In determining whether exigent circumstances justify a\n\nwarrantless search, we examine the totality of the circumstances.\n\nMissouri v. McNeely, 569 U.S. 141, 149 (2013). Accordingly, in\n\nthe present case we begin by considering the gravity of the crime\n\nbeing investigated and the weather conditions at the time of the\n\nsearch to ascertain the constitutionality of Officer Dyer's\n\nactions. Officer Dyer was investigating a crime of the most\n\nserious nature, a potential double-homicide, on a cold December\n\nmorning. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); United\n\nStates v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985) (listing\n\nthe \"gravity of the underlying offense\" as one of the factors that\n\ncourts must consider \"[i]n determining whether the circumstances\n\nof a case fall into one of the emergency conditions characterized\n\nas exigent circumstances\"). As conceded by Owens's counsel at\n\noral argument, the temperature in Londonderry, New Hampshire at\n\nthe time of the search was 30 degrees Fahrenheit. In this cold\n\nweather, it was reasonable for Officer Dyer to believe that any\n\nwarmth emanating from the vehicle -- the evidence -- would evanesce\n\n\n -15-\n\for be destroyed before he could obtain a search warrant.\n\n It is not unprecedented to make a finding of exigency\n\nbased on a naturally occurring event's destructive consequence\n\nover critical evidence. In McNeely, the Supreme Court recognized\n\nthat the \"the natural dissipation of alcohol in the blood may\n\nsupport a finding of exigency in . . . specific case[s].\" 569\n\nU.S. at 156. Such was the case in Schmerber, where the Court\n\nconcluded that \"further delay in order to secure a warrant after\n\nthe time spent investigating the scene of the accident and\n\ntransporting the injured suspect to the hospital to receive\n\ntreatment would have threatened the destruction of evidence\" given\n\nthat it would have \"negatively affect[ed] the probative value of\n\nthe [blood alcohol test] results.\" McNeely, 569 U.S. at 152\n\n(citing Schmerber v. California, 384 U.S. 757, 770-71 (1966)).\n\n We do not find it difficult to draw parallels between\n\nthe exigent circumstances found in Schmerber and those in the\n\ninstant case. Unlike other \"destruction-of-evidence cases\" in\n\nwhich a \"suspect has control over easily disposable evidence,\"\n\nhere, like in Schmerber, law enforcement dealt with the type of\n\n\"evidence [that]. . . naturally dissipates over time in a gradual\n\nand relatively predictable manner.\" Id. at 153. Just as the\n\npassing of time negatively affected the probative value of the\n\nblood-alcohol test in Schmerber, it negatively affected the\n\n\n -16-\n\fprobative value of Officer Dyer's gauging of the temperature of\n\nOwens's vehicle through his sense of touch, and, as such,\n\nthreatened the destruction or loss of evidence. See id. at 152.\n\n The natural dissipation of the vehicle's heat, however,\n\nwas not the only way the evidence could have been lost in the\n\npresent case. If Owens turned on his vehicle's engine, as he\n\neventually did, the evidence would have likewise been destroyed.\n\nIgnition would have made it practically impossible for law\n\nenforcement to know, based on touch, whether the vehicle was\n\npreviously warm. In deciding whether to enter the driveway and\n\ntouch Owens's vehicle, Officer Dyer was \"forced to make [a] split-\n\nsecond judgment[] -- in circumstances that [were] tense,\n\nuncertain, and rapidly evolving.\" United States v. Almonte-Báez,\n\n857 F.3d 27, 31 (1st Cir. 2017) (quoting King, 563 U.S. at 466).7\n\nBecause a light inside Owens's house was shut off a few minutes\n\nbefore his entry into the driveway, Officer Dyer had an objectively\n\nreasonable basis to believe Owens was awake and therefore capable\n\nof exiting his house and turning on his vehicle at any moment,\n\nthereby destroying the evidence. These circumstances, considered\n\n\n7 Apart from knowing that Owens was being investigated in relation\nto a double-shooting, officers Dyer and Lee were aware that Owens\nhad a military background and possessed firearms in his house.\nAlso, they did not want to be seen because their instructions were\nto verify the presence of Owens's vehicles without making contact\nwith him.\n\n\n -17-\n\fin conjunction with the inevitable natural dissipation of the\n\nvehicle's warmth, support a finding of exigency and, thus, of\n\nreasonableness as to Officer Dyer's search. See Almonte-Báez, 857\n\nF.3d at 32 (\"[T]he government . . . may invoke the exigent\n\ncircumstances exception when it can identify an 'objectively\n\nreasonable basis' for concluding that, absent some immediate\n\naction, the loss or destruction of evidence is likely.\" (citation\n\nomitted)).\n\n Finally, the scope and intrusiveness of Officer Dyer's\n\nsearch also weigh in favor of its reasonableness. See Maryland v.\n\nKing, 569 U.S. at 448 (\"Th[e] application of 'traditional standards\n\nof reasonableness' requires a court to weigh 'the promotion of\n\nlegitimate governmental interests' against 'the degree to which\n\n[the search] intrudes upon an individual's privacy.'\" (quoting\n\nWyoming v. Houghton, 526 U.S. 295, 300 (1999))). The scope of\n\nOfficer Dyer's search was limited to verifying the temperature of\n\nOwens's vehicle, and its intrusiveness was minimal -- Officer Dyer\n\nsimply placed his hand on the vehicle's hood and grill for a few\n\nseconds. Cf. Schmerber, 384 U.S. at 770-72 (holding that drawing\n\na drunk-driving suspect's blood was reasonable); Cupp v. Murphy,\n\n412 U.S. 291, 296 (1973) (holding that the \"ready destructibility\n\nof the evidence\" and the suspect's observed efforts to destroy it\n\n\"justified the police in subjecting him to the very limited\n\n\n -18-\n\fsearch,\" the scraping of his fingernails, which was \"necessary to\n\npreserve the highly evanescent evidence they found under his\n\nfingernails\"); Nikolas v. City of Omaha, 605 F.3d 539, 546 (8th\n\nCir. 2010) (holding that the exterior search of a garage, which\n\nwarrants \"protection comparable to that afforded the curtilage of\n\na residence,\" by \"look[ing] through the windows was\n\nconstitutionally reasonable\").\n\n In short, based on our fact-bound and case-specific\n\ninquiry, we conclude that Officer Dyer's warrantless search of\n\nOwens's vehicle while parked in his house's driveway did not offend\n\nthe Fourth Amendment because, within the totality of the\n\ncircumstances, it was objectively reasonable for Officer Dyer to\n\nbelieve the search was necessary to prevent the imminent\n\ndestruction of evidence.8\n\n\n8 Even if we were to find that the district court erred in denying\nOwens's motion to suppress evidence referencing the temperature of\nhis vehicle, we would deem such error harmless beyond a reasonable\ndoubt. See Chapman v. California, 386 U.S. 18, 24 (1967); see\nalso Chambers v. Maroney, 399 U.S. 42, 53 (1970). As discussed in\ndetail below, the Government presented a plethora of evidence\nunrelated to the temperature of Owens's vehicle that provided a\nmore than compelling basis for Owens's convictions. See infra at\n26-29; see also United States v. Jiménez, 419 F.3d 34, 42 (1st\nCir. 2005) (finding harmless error when erroneously admitted\nevidence \"pale[d] in light of the other evidence introduced at\ntrial\").\n\n By the same token, the very limited evidence regarding the\ntemperature of Owens's vehicle was inconsequential and cumulative.\nSee Harrington v. California, 395 U.S. 250, 254 (1969) (recognizing\nthat cumulative nature of contested evidence is a factor that\n\n -19-\n\fB. Motion to Suppress the Search Warrants\n\n During the investigation of Owens's crimes, a total of\n\nfive search warrants were issued.9 On appeal, Owens argues that\n\nthe district court erred in denying his motion to suppress the\n\nevidence seized pursuant to all the warrants, albeit on two\n\ndifferent grounds. He challenges the first four warrants arguing\n\nthat the affidavits on which they were based contained false or\n\nmisleading information.10 Specifically, Owens sustains that these\n\n\n\ncontributes to the conclusion that any error in admitting the\nevidence was harmless). To the extent that the warmth emanating\nfrom Owens's vehicle was probative, it served to suggest that his\nvehicle had been recently used. But it was essentially conceded\nthat Owens had left his house and driven his vehicle in the hours\nsurrounding the incident at the Chabot residence. Owens himself\ntestified that he left his house multiple times that night and\nearly morning. Still more, video surveillance footage placed him\noutside of his house and at Dunkin' Donuts not long after the time\nof the incident. Unsurprisingly, in its closing statement the\nGovernment did not once meaningfully refer to the temperature of\nOwens's vehicle.\n\n Thus, viewed in context, the evidence that Owens's vehicle felt\nwarm when Officer Dyer touched it was simply unessential to both\nthe Government's case and the jury's guilty verdicts. See United\nStates v. Hasting, 461 U.S. 499, 506 (1983) (\"Supervisory power to\nreverse a conviction is not needed as a remedy when the error to\nwhich it is addressed is harmless since by definition, the\nconviction would have been obtained notwithstanding the asserted\nerror.\").\n9 Two state courts, New Hampshire's Salem Circuit Court and\nMaine's Biddeford District Court, and the United States District\nCourt for the District of Maine issued the search warrants Owens\nchallenges on appeal.\n10 In his brief, Owens also posits that the district court erred\nbecause on their face the search warrant affidavits did not support\n\n -20-\n\ffour affidavits contain certain misstatements, omissions, and\n\ninconsistencies that affected the issuing judges' probable cause\n\ndeterminations. Owens challenges the fifth warrant to the extent\n\nits supporting affidavit relied on: (1) evidence seized pursuant\n\nto one of the four prior \"faulty warrants,\" or (2) the match\n\nbetween DNA collected from the crime scene and the DNA obtained\n\nfrom the buccal swab taken during the police interview, which Owens\n\navers was obtained \"due to [his] uninformed and/or involuntary\n\nconsent.\" On these grounds, Owens contends that we should\n\ninvalidate the warrants or, in the alternative, remand to the\n\ndistrict court for a hearing to \"fully determine the depth and\n\nbreadth\" of the purported inaccuracies. We disagree.\n\n Affidavits supporting search warrants are presumptively\n\nvalid. United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018);\n\nUnited States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). A\n\ndefendant may \"rebut this presumption and challenge the veracity\"\n\nof a warrant affidavit at a pretrial hearing commonly known as a\n\nFranks hearing. Barbosa, 896 Fd.3d at 67 (quotation and citations\n\nomitted); see also Franks v. Delaware, 438 U.S. 154, 171 (1978).\n\n\n\n\na finding of probable cause and did not establish a nexus between\nthe locations to be searched and the items sought. Owens, however,\ndoes not support this argument with anything more than conclusory\nstatements. Accordingly, we deem it waived on appeal. Zannino,\n895 F.2d at 17 (citations omitted).\n\n\n -21-\n\fTo be entitled to a Franks hearing, however, a defendant must first\n\nmake two \"substantial preliminary showings: (1) that a false\n\nstatement or omission in the affidavit was made knowingly and\n\nintentionally or with reckless disregard for the truth; and (2) the\n\nfalsehood or omission was necessary to the finding of probable\n\ncause.\" United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)\n\n(citation and internal quotation marks omitted).11 A defendant's\n\n\"failure to make a showing on either of these two elements dooms\n\n[his] challenge.\" McLellan, 792 F.3d at 208.\n\n In its order denying Owens's motion to suppress the\n\nevidence obtained pursuant to the search warrants, the district\n\ncourt made a detailed assessment of Owens's claims as to each\n\nmisstatement and omission he identified in the affidavits. Order\n\non Def.'s Mots. to Suppress and Dismiss, United States v. Owens,\n\nNo. 2:15-CR-55-NT, 2015 WL 6445320, at *12-18 (D. Me. Oct. 23,\n\n2015). In doing so, the district court concluded that Owens did\n\nnot make a showing of the two required elements -- intentionality\n\nand materiality -- for any single misstatement or omission\n\ncontained in the affidavits. Id. Specifically, it found that the\n\nmisstatements and omissions were either the result of negligence\n\n\n\n11 These showings are referred to as the \"intentionality\" and\n\"materiality\" prongs of the Franks test. See, e.g., United States\nv. Lull, 824 F.3d 109, 113-14 (4th Cir. 2016).\n\n\n -22-\n\for innocent mistakes, or had no bearing on the probable cause\n\ndeterminations.12 Id. As to Owens's contention regarding his lack\n\nof consent to the buccal swab during the police interview, the\n\ndistrict court reviewed video recordings of the interview and\n\nconcluded that Owens's consent \"was voluntarily given, and not the\n\nresult of duress or coercion, express or implied.\" Id. at *3 n.2\n\n(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)).\n\n After a careful analysis of the record, we agree with\n\nand adopt the district court's factual findings and legal\n\nconclusions regarding Owens's failure to make the intentionality\n\nand materiality showings that would entitle him to a Franks\n\nhearing, and Owens's consent to the buccal swab during the police\n\ninterview. Accordingly, we find no error in the district court's\n\ndenial of Owens's motions to suppress the evidence seized pursuant\n\nto the search warrants. See United States v. Arias, 848 F.3d 504,\n\n511 (1st Cir. 2017) (\"In considering a district court's decision\n\nto deny a Franks hearing, we review factual determinations for\n\n\n12 We note that, in support of his motion to suppress, Owens even\nlabelled as \"recklessly false\" statements that were actually true.\nFor example, Owens argued that one of the affidavits falsely\nidentified him as a suspect, but Owens was in fact a suspect at\nthe time the affidavit was submitted. The same goes for some of\nthe omissions on which Owens's motion rested. For example, he\nclaimed that one of the affidavits omitted that the Chabot\nresidence's intruder first attempted to gain entry into the room\nwhere Carol was hiding, when the affidavit specifically mentioned\nthis fact.\n\n\n -23-\n\fclear error and the probable cause determination de novo.\"\n\n(citation omitted)); see also United States v. Tzannos, 460 F.3d\n\n128, 136 (1st Cir. 2006) (recognizing that \"a defendant must meet\n\na high bar even to get a Franks hearing\").\n\nC. Sufficiency of Evidence for Owens's Convictions\n\n In reviewing sufficiency challenges, \"[w]e view 'all\n\n[the] evidence, credibility determinations, and reasonable\n\ninferences therefrom in the light most favorable to the verdict[]\n\nin order to determine whether the jury rationally could have found\n\nthat the government established each element of the charged offense\n\nbeyond a reasonable doubt.'\" United States v. Valdés-Ayala, 900\n\nF.3d 20, 30 (1st Cir. 2018) (quoting United States v. Serunjogi,\n\n767 F.3d 132, 139 (1st Cir. 2014)). Our analysis \"is weighted\n\ntoward preservation of the jury verdict.\" Rodríguez-Torres v.\n\nCaribbean Forms Mfr., Inc., 399 F.3d 52, 57 (1st Cir. 2005). \"[A]s\n\nlong as the guilty verdict finds support in a 'plausible rendition\n\nof the record,' it must stand.\" United States v. Moran, 312 F.3d\n\n480, 487 (1st Cir. 2002) (citation omitted). Importantly, as we\n\nconduct our review, we place \"no premium . . . upon direct as\n\nopposed to circumstantial evidence\" since \"both types of proof can\n\nadequately ground a conviction.\" United States v. Valerio, 48\n\nF.3d 58, 63 (1st Cir. 1995) (quoting United States v. Ortiz, 966\n\nF.2d 707, 711 (1st Cir. 1992)).\n\n\n -24-\n\f For Owens's conviction on Count One, interstate domestic\n\nviolence, the jury must have found that the Government proved\n\nbeyond reasonable doubt that: (1) Owens was married to Rachel; (2)\n\nOwens traveled in interstate commerce -- in this case, from New\n\nHampshire to Maine -- with the intent to \"kill [or] injure\" Rachel;\n\n(3) \"as a result of such travel,\" Owens \" commit[ted] or\n\nattempt[ed] to commit a crime of violence\" against Rachel; and\n\n(4) a \"life threatening bodily injury\" resulted from Owens's\n\nactions.13 18 U.S.C. § 2261(a)(1) & (b)(2). Meanwhile, for Owens's\n\nconviction on Count Two, discharge of a firearm during and in\n\nrelation to a crime of violence, the Government had to prove that\n\n\"during and in relation to [a] crime of violence,\" namely the crime\n\nof interstate domestic violence charged in Count One, Owens\n\nknowingly \"use[d] . . . a firearm\" by discharging it \"during and\n\nin relation\" to the commission of that crime. 18 U.S.C.\n\n§ 924(c)(1)(A)(iii).\n\n Owens's sufficiency challenge rests on the Government's\n\nalleged failure to prove that Owens was the person who intruded\n\n\n\n13 The Government sought to prove the fourth prong, that Rachel\nsustained a \"life threatening bodily injury,\" for purposes of 18\nU.S.C. § 2261(b)(2), which provides a penalty of up to 20 years'\nimprisonment if defendant's commission of interstate domestic\nviolence under § 2261(a) results in \"permanent disfigurement or\nlife threatening bodily injury to the victim.\" 18 U.S.C.\n§ 2261(b)(2).\n\n\n -25-\n\finto the Chabot residence, and the purported impossibility of Owens\n\ntravelling from Londonderry to Saco, invading the Chabot\n\nresidence, and returning to Londonderry within a time frame of\n\napproximately four hours and twenty-four minutes. Owens claims\n\nthat neither Carol, Steve, nor Rachel identified him as the\n\nintruder. Furthermore, Owens stresses that Rachel identified the\n\nintruder as a \"dark skinned person with dread locks [sic],\" which\n\ndoes not match his physical description since he is a \"white male\n\nwho does not have dread locks [sic].\" As to the second ground of\n\nhis sufficiency challenge, Owens claims that, because he was\n\npresent in Londonderry at 12:11 a.m. and 4:35 a.m., as reflected\n\nby two store's video surveillance footage, it was impossible for\n\nhim to have been present in Saco when the shooting took place,\n\n2:45-2:47 a.m. He focuses on the amount of time it would have\n\ntaken him to make the trip back from Saco to Londonderry. In\n\nparticular, Owens contends that a trip from the Chabot residence\n\nin Saco to Londonderry would take him at least two hours and\n\nfifteen minutes, while under the Government's theory it took him\n\napproximately one hour and forty-eight minutes. We are not\n\npersuaded.\n\n As the Government avers, the jury was presented a vast\n\namount of direct and circumstantial evidence identifying Owens as\n\nthe Chabot residence intruder. Specifically, the Government\n\n\n -26-\n\fidentifies the following incriminating evidence presented at\n\ntrial: (1) laboratory testing confirming that Owens's DNA was found\n\nin an area where the two window panes had been affixed to each\n\nother -- an area that would not have been exposed until the\n\nintruder shattered the outer pane -- as well as in the door handle\n\nand deadlock used to access the Chabot residence; (2) boot prints\n\nand a cast of boot impression taken from the scene that matched\n\nthe boots found in Owens's car a few hours after the incident;\n\n(3) testimony regarding bloodstains found on the armrest of the\n\ndriver's door and inside the driver's door of Owens's vehicle a\n\nfew hours after the incident; (4) Steve's testimony identifying\n\nthe intruder as a person with a similar physique to Owens's and\n\nwho, like Owens, wore glasses; (5) expert testimony revealing\n\nOwens's efforts to manipulate his laptop's clock to make it seem\n\nthat he was at his Londonderry home at the time of the incident;\n\nand, relatedly, (6) testimony regarding Owens's attempt to\n\nmanufacture an alibi by having his former boss lie to law\n\nenforcement about a Skype call that never took place. This\n\nevidence, in conjunction with the rest of the evidence presented\n\nat trial, allows a reasonable jury to conclude beyond reasonable\n\ndoubt that it was Owens who broke into the Chabot's residence.14\n\n\n14 Although not specifically listed by the Government as evidence\nthat led the jury to identify Owens as the Chabot residence's\nintruder, we note that the .9mm ammunition stamped \"WCC 1987\" and\n\n -27-\n\f Owens's reference to Rachel's alleged identification of\n\nthe intruder as a \"dark skinned person with dread locks [sic],\"\n\nwhich we read as an attempt to highlight evidence of exculpatory\n\nnature, does not help him. We are not to \"weigh the evidence or\n\nmake credibility judgments\" in our sufficiency review, as \"these\n\ntasks are solely within the jury's province.\" Serunjogi, 767 F.3d\n\nat 139 (quoting United States v. Hernández, 218 F.3d 58, 64 (1st\n\nCir. 2000)).15\n\n Finally, as to the alleged impossibility of Owens making\n\nthe trip back from Saco to Londonderry in less than two hours and\n\nfifteen minutes, the jury was presented with ample testimonial\n\nevidence, including Owens's own trial testimony, reflecting that\n\nthis ninety-mile trip usually took about one hour and thirty\n\nminutes. Moreover, Carol testified that Owens frequently bragged\n\nabout making the trip in just over an hour. Accordingly, the jury\n\nwas presented with sufficient evidence to conclude that Owens's\n\nLondonderry-Saco roundtrip would have lasted three hours or less,\n\n\n\n\ndark clothes seized from Owens's house also strongly support the\njury's guilty verdicts. The .9mm ammunition casings matched the\nshell casings recovered from the Chabot residence, while the dark\nclothes, some of which was found in Owens's washing machine,\nmatched that worn by the residence's intruder.\n15 In any event, we note that the record is devoid of any testimony\ndescribing the intruder as such. What Rachel did testify was that\nthe intruder was wearing a \"Jamaican hat\" or \"floppy [black] hat.\"\n\n\n -28-\n\fwhich fits easily within the four hour and twenty-four-minute\n\nwindow separating the two instances in which he was recorded at\n\nthe Londonderry stores.\n\n Based on the foregoing analysis, we conclude that there\n\nwas sufficient evidence to support Owens's convictions.\n\nD. Reasonableness of Owens's Life Sentence\n\n Owens challenges the procedural and substantive\n\nreasonableness of his sentence. He claims the district court erred\n\nprocedurally by not considering some factors outlined in 18 U.S.C.\n\n§ 3553, and that it substantively erred in imposing a life\n\nsentence.\n\n Our review is bifurcated. First, we ensure the district\n\ncourt did not commit any procedural errors, such as \"failing to\n\nconsider the section 3553(a) factors, selecting a sentence based\n\non clearly erroneous facts, or failing to adequately explain the\n\nchosen sentence.\" United States v. Gierbolini-Rivera, 900 F.3d 7,\n\n12 (1st Cir. 2018) (citation omitted). If a sentence is\n\nprocedurally sound, we proceed to the second step of our inquiry:\n\ndetermining whether the sentence is substantively reasonable. Id.\n\nIn reviewing the substantive reasonableness of a sentence, we\n\n\"focus[] on the duration of the sentence in light of the totality\n\nof the circumstances.\" Id. (citing United States v. Del Valle-\n\nRodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). Although a district\n\n\n -29-\n\fcourt is \"under a mandate to consider a myriad of relevant\n\nfactors,\" the weight it decides to afford to those factors is\n\n\"largely within the court's informed discretion.\" United States\n\nv. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also 18 U.S.C.\n\n§ 3553(a). We will ultimately find a sentence substantively\n\nreasonable \"so long as the sentencing court has provided a\n\n'plausible sentencing rationale' and reached a 'defensible\n\nresult.'\" Gierbolini-Rivera, 900 F.3d at 12 (citing United States\n\nv. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).16\n\n Because Owens failed to preserve his objection below, we\n\nreview his procedural challenge based on the district court's\n\nalleged failure to consider § 3553(a) factors for plain error.\n\nId. at 13. Hence, for Owens's procedural challenge to succeed, he\n\nmust show: \"(1) that an error occurred, (2) which was clear or\n\nobvious and which not only (3) affected the defendant's substantial\n\nrights, but also (4) seriously impaired the fairness, integrity,\n\nor public reputation of judicial proceedings.\" Id. at 12 (citations\n\n\n\n16 In considering a challenge to the substantive reasonableness\nof a sentence preserved below, this court applies the abuse of\ndiscretion standard. Gierbolini-Rivera, 900 F.3d at 14. Owens,\nhowever, did not object to his life sentence below. In such cases,\nit remains an open question in this Circuit whether the abuse of\ndiscretion standard or the plain error standard applies. Id. at\n15 (citation omitted). Notwithstanding, we need not decide this\nissue in the instant case given that Owens's claim fails under\nboth.\n\n\n -30-\n\fomitted).\n\n Owens's procedural challenge to his sentence fails on\n\nthe first prong of the plain error test. The record reveals that\n\nthe district court took into consideration all the mitigating\n\nfactors Owens claims it did not, namely, his military accolades,\n\nlack of criminal history, productive work history, and age. See\n\n18 U.S.C. § 3553(a) (stating that a sentencing court \"shall\n\nconsider . . . the history and characteristics of the defendant\").\n\nThe district court, however, weighed these mitigating factors\n\nagainst the following aggravating factors: the severity of the\n\ncrime; Owens's premeditation, given that he planned to kill Rachel\n\nboth to avoid the responsibility of caring for her as she suffered\n\nfrom dementia and to be able to continue his affair, while avoiding\n\nthe scorn that divorcing Rachel would have caused; the attempted\n\nmurder of a witness and friend, Steve, to prevent him from\n\nidentifying Owens as the intruder; Owens's deceitful character, as\n\nrevealed through his participation at trial and during allocution;\n\nand, finally, the need to protect the public, among others. See\n\nid. This balancing of sentencing factors \"is precisely the\n\nfunction that a sentencing court is expected to perform,\" United\n\nStates v. Ledée, 772 F.3d 21, 41 (1st Cir. 2014) (citation\n\nomitted), and we find that the district judge did not procedurally\n\nerr, plainly or otherwise, while carrying it out in the present\n\n\n -31-\n\fcase.\n\n Further, the district court thoroughly explained the\n\nrationale behind Owens's life sentence. Apart from the factors\n\nlisted above, it emphasized Owens's \"cold-blooded behavior . . .\n\n[and] obvious lack of conscience,\" as well as the \"long lasting\n\nemotional damage to both Chabots\" and the severity of the injuries\n\ninflicted on Rachel. Considering the totality of the\n\ncircumstances of Owens's crime, we find that the district court's\n\nlife sentence is a defensible result. See Gierbolini-Rivera, 900\n\nF.3d at 12. Accordingly, we conclude that the district court did\n\nnot substantively err.\n\nE. Motion to Dismiss the Indictment on Double Jeopardy Grounds\n\n Finally, Owens claims that the district court erred in\n\ndenying his motion to dismiss the indictment on double jeopardy\n\ngrounds. The Double Jeopardy Clause \"provides that no person may\n\nbe tried more than once 'for the same offence.'\" Currier v.\n\nVirginia, 138 S. Ct. 2144, 2149 (2018). It protects \"an individual\n\nagainst (1) a second prosecution for the same offense, following\n\nan acquittal; (2) a second prosecution for the same offense,\n\nfollowing a conviction; and (3) multiple punishments for the same\n\noffense.\" United States v. Stoller, 78 F.3d 710, 714 (1st Cir.\n\n1996) (citation omitted). Owens, however, does not establish that\n\nhis double jeopardy challenge is premised on a prior criminal\n\n\n -32-\n\fconviction, acquittal, or punishment for the same offenses for\n\nwhich he was convicted and sentenced in this case.17 We thus find\n\nno error in the district court's denial of his motion to dismiss\n\nthe indictment on double jeopardy grounds.\n\n III. CONCLUSION\n\n For the reasons explained above, each of Owens's claims\n\nis unavailing. We therefore affirm the district court's denial of\n\nhis pretrial motions, his convictions, and sentence.\n\n Affirmed.\n\n\n\n\n17He does not even allege that he was subject to any prior criminal\nprosecution for offenses resulting from the events that unfolded\nat the Chabot residence.\n\n\n -33-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371404/", "author_raw": "TORRUELLA, Circuit Judge"}]} | HOWARD | TORRUELLA | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594151/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Gregory OWENS, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 16-1945\n\n UNITED STATES OF AMERICA,\n\n Appellee,\n\n v.\n\n GREGORY OWENS,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MAINE\n [Hon. Nancy Torresen, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Torruella and Thompson, Circuit Judges.\n\n\n Sarah A. Churchill, with whom Nichols & Churchill, P.A., was\non brief, for appellant.\n John M. Pellettieri, Attorney, Appellate Section, Criminal\nDivision, U.S. Department of Justice, with whom Sangita K. Rao,\nAttorney, Appellate Section, Criminal Division, John P. Cronan,\nActing Assistant Attorney General, Criminal Division, Matthew S.\nMiner, Deputy Assistant Attorney General, Criminal Division,\nHalsey B. Frank, United States Attorney, Darcie McElwee, Assistant\nUnited States Attorney, and James W. Chapman, Assistant United\nStates Attorney, were on brief, for appellee.\n\n\n\n February 26, 2019\n\f TORRUELLA, Circuit Judge. This is a case about a double\n\nlife, an attempted uxoricide, and excellent police work.\n\nDefendant-Appellant Gregory Owens (\"Owens\") was convicted of\n\ninterstate domestic violence in violation of 18 U.S.C. § 2261(a)(1)\n\nand (b)(2); and discharge of a firearm during and in relation to\n\na crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).\n\nHe was sentenced to life in prison. On appeal, Owens challenges\n\nthe sufficiency of evidence supporting his convictions, the\n\nreasonableness of his sentence, and the district court's denial of\n\nhis pretrial motions seeking to suppress evidence and dismiss the\n\nindictment on double jeopardy grounds. After careful review, we\n\nfind Owens's convictions supported by sufficient evidence, his\n\nsentence substantively reasonable, and the motions for suppression\n\nand dismissal properly denied. Seeing no reason to vacate Owens's\n\nconvictions or sentence on the grounds that he has presented, we\n\naffirm.\n\n I. BACKGROUND\n\nA. Factual Background\n\n 1. The Home Invasion\n\n In the early morning hours of December 18, 2014, at\n\napproximately 2:45 a.m., Carol Chabot (\"Carol\") awoke to a\n\nshuffling noise coming from the downstairs of her two-story house\n\nin Saco, Maine. Sensing something was not right, she woke her\n\n\n -2-\n\fhusband, Steve Chabot (\"Steve\"), who lay beside her. Steve,\n\nhowever, did not hear the noise but told Carol \"it's probably\n\nRachel\" who caused the noise — with \"Rachel\" being Rachel Owens\n\n(\"Rachel\"), a family friend who was staying the night. Then Steve\n\nrolled over to go back to sleep. Undeterred, Carol got out of bed\n\nto investigate.\n\n As she walked down the upstairs hallway, toward the spare\n\nbedroom where Rachel was staying, Carol heard a second noise --\n\nthis time the loud sound of glass shattering. With haste, she\n\nlooked into the spare bedroom and noticed Rachel was sound asleep\n\nin bed. Steve also heard the loud noise and hurried out of bed to\n\ncheck what was going on. He peeked out of his bedroom towards the\n\nstaircase and saw an intruder racing up the stairs with a gun in\n\nhis right hand. The intruder, later identified as Owens, was\n\napproximately 5 feet 9 inches tall with a slim, athletic build; he\n\nwore dark clothing, gloves, and a black mask with a single opening\n\nat the eyes and glasses protruding from it.\n\n Steve shouted an expletive at the intruder and dashed\n\nback into the master bedroom. Carol, who did not see the intruder\n\nbut saw a look of horror on her husband's face, ran into a third\n\nbedroom used as a home office and barricaded herself inside. The\n\nintruder followed her and tried to force his way into the room,\n\nbut, after a few failed attempts, suddenly stopped. He then walked\n\n\n -3-\n\ftoward the room where Rachel lay and fired at her three times,\n\nhitting her in the head, arm, and torso.\n\n Having heard the gun shots, Steve peeked out of the\n\nmaster bedroom again. He saw the intruder about two feet away,\n\nheading towards him. They looked at each other face to face.\n\nSteve immediately slammed the door shut and held his arm against\n\nit. Undaunted, the intruder kicked the door in, looked inside\n\nthrough the now slightly-opened doorway, and fired shots through\n\nthe door, striking Steve in the arm, neck, and rib area.1 The\n\nintruder then abandoned the Chabot residence. He did not take any\n\nvaluables with him.\n\n 2. The Crime Scene\n\n In response to a 911 call from Steve Chabot received at\n\n2:47 a.m., police arrived at the Chabot residence. During their\n\ninvestigation of the crime scene, officers learned that the\n\nintruder gained entry into the garage through a door located in\n\nthe back of the house, and into the interior of the Chabot\n\nresidence through a door located in the garage that led to the\n\nkitchen. The upper part of this garage door was double-paned\n\nglass, sectioned into nine squares by wood framing. The intruder\n\n\n\n1 Both Rachel and Steve survived the incident, but it left Rachel\nwith a bullet lodged in her brain and severely limited use of her\nright hand.\n\n\n -4-\n\fbroke the outer pane of the lower left square of glass, leaving\n\nglass shards scattered on the floor and separating the inner pane,\n\nwhich remained intact, from the door, thereby creating a gap that\n\nallowed the intruder to reach in and unlock the deadbolt. Officers\n\nretrieved human hair from the area between the shattered outer\n\npane of glass and the inner pane of glass, and swabbed the area\n\nfor DNA.\n\n Police officers also recovered numerous .9mm shell\n\ncasings stamped \"WCC 1987,\" later identified as 27-year-old\n\nWestern Cartridge Company casings, from the second floor of the\n\nhouse.\n\n Finally, while inspecting the periphery of the Chabot\n\nresidence, officers found a footprint in the damp dirt outside the\n\nfirst-floor window near the garage and proceeded to make a cast of\n\nit.\n\n 3. Search, Intervention, and Interview\n\n At around 5:00 a.m., Maine police officers informed New\n\nHampshire law enforcement of the shooting at the Chabot residence.\n\nTwo New Hampshire police officers, Randy Dyer (\"Officer Dyer\") and\n\nKeith Lee (\"Officer Lee\"), were instructed to visit Owens's\n\nresidence in the town of Londonderry to verify the presence of his\n\ntwo vehicles. They were, however, instructed not to make contact\n\nwith Owens.\n\n\n -5-\n\f At approximately 5:20 a.m., the two police officers\n\narrived at Owens's neighborhood and parked their car at the\n\nbeginning of Winthrop Road, the dead-end street where Owens's\n\nresidence was located. Under the cover of darkness, they began\n\nheading down Winthrop Road toward the house. At around 5:24 a.m.,\n\nbefore the officers could reach their destination, a state trooper\n\npatrol car with flashing blue lights drove near the Owens\n\nresidence. Contemporaneously, a light visible from the house's\n\nfront windows went off, making the inside of the house go dark.\n\nThe officers stopped the trooper and instructed him to turn off\n\nthe flashing lights. After this, the officers, now accompanied by\n\nthe trooper, continued their approach towards the residence. With\n\nOfficer Lee and the trooper providing cover, Officer Dyer\n\neventually made his way into the driveway, where he placed his\n\nhand on Owens's Hyundai Santa Fe SUV (\"Owens's vehicle\") and\n\nnoticed its hood and grill were warm.2 The officers and trooper\n\nthen retreated back down Winthrop Road to the staging area.\n\n Several minutes after arriving at the staging area, the\n\nofficers saw Owens's vehicle exit Winthrop Road and proceeded to\n\n\n\n2 Owens's vehicle was parked on the upper part of his driveway,\nwith its nose facing the garage. The driveway is easily observable\nand accessible to anyone passing by in the neighborhood. It is\nnot enclosed in any way, nor does it have any fences or signs\nwarning visitors to stay away.\n\n\n -6-\n\ffollow it. The vehicle stopped at a nearby Circle K store, where\n\nOwens got out. The officers approached Owens and told him that\n\nhis wife had been shot. Owens acted surprised and complained of\n\nchest pains, after which the officers requested medical attention\n\nfor him. While waiting for the medical personnel to arrive, the\n\nofficers saw blood, a pair of boots with wet stains, and a computer\n\nhard drive inside Owens's vehicle. Owens agreed to go with the\n\nofficers to the police station for a videotaped interview (the\n\n\"police interview\") after receiving medical assistance.\n\n During the police interview, Owens provided a detailed\n\naccount of his night. Specifically, he explained, albeit with\n\nsome variation, that, after speaking to his wife Rachel at around\n\n9:15 p.m., he went to bed, but got up a few times to work on his\n\ncomputer on a proposal for a military consultancy contract with\n\nthe Ukrainian government that was due the next day. In particular,\n\nOwens claimed that at around 2:30 a.m. –- fifteen minutes before\n\nthe Chabot residence was broken into -- he sent an e-mail to one\n\nof his colleagues regarding a tweak to the proposal.\n\n Owens also admitted to leaving his home on multiple\n\noccasions throughout the course of the night and early morning:\n\nfirst, to Circle K at around 12:30 a.m. to get a soda and\n\ncigarettes; then, to Dunkin' Donuts between 4:15-4:45 a.m. to get\n\ncoffee and donuts; and finally, to Circle K again at around\n\n\n -7-\n\f6:30 a.m. to grab another cup of coffee, at which point he came in\n\ncontact with officers Dyer and Lee. Furthermore, he informed the\n\ninterviewing officers that he was a military retiree and had what\n\nhe described as an \"arsenal\" of weapons in his house. After\n\ncollecting some evidence (e.g., DNA samples from his hands and\n\nmouth, clothes, etc.), the police released Owens from custody.\n\n 4. The Double-Life and Motive\n\n To fully understand the motive behind Owens's crime, we\n\nmust look back to the preceding decade. In 2005, Owens met Betsy\n\nWandtke (\"Wandtke\"), a woman from Wisconsin, in a flight back from\n\na hunters' rights convention, which they had both attended.3 About\n\nthree years later, their relationship turned into an affair. As\n\nthe affair progressed, Owens and Wandtke began to spend more time\n\ntogether -- up to ten days a month. Owens considered Wandtke his\n\n\"lover\" and his \"life.\" He represented to her that he was in the\n\nprocess of divorcing Rachel, which Wandtke was unable to\n\nindependently confirm, given that it was not true. To partly\n\nexplain his long absences when he was actually with Rachel in New\n\nHampshire, Owens told Wandtke that his work as a military\n\nconsultant required him to travel and take part in covert missions\n\nin places like Afghanistan.\n\n\n\n3 From the moment they met, Wandtke was aware of Owens's marriage.\n\n\n -8-\n\f While the affair continued, in or about 2011, Rachel\n\nbegan to develop early-onset dementia. The responsibility of\n\nhaving to care for her burdened Owens, but did not deter him from\n\ncontinuing his affair with Wandtke. Then, on December 3, 2014,\n\nthe affair came to an abrupt end. Due to an inadvertent call from\n\nOwens's mobile phone, Wandtke discovered that Owens was leading a\n\ndouble-life -- his marriage with Rachel continued in regular\n\ncourse. Wandtke confronted Owens about it and told him their\n\nrelationship was over.4 After a failed attempt to convince Wandtke\n\nthat she misunderstood the conversation she overheard, Owens\n\npromised Wandtke he was going to make it up to her.\n\n A mere fifteen days after the breakup, the events at the\n\nChabot residence unfolded. Furthermore, in the days following the\n\nshooting, Owens contacted Wandtke via e-mail and told her that he\n\nwas being \"targeted\" because of his work and instructed her to \"go\n\ndark\" and not tell anyone about their relationship. Then, on\n\nDecember 31, 2014 -- thirteen days after the incident at the Chabot\n\nresidence and with his wife still recovering from a gunshot wound\n\n\n4 Owens was with Wandtke in Wisconsin a little over a week before\ntheir breakup. They had plans to celebrate Thanksgiving together.\nNotwithstanding, the weekend before the holiday, Owens suddenly\ncancelled their plans, leaving Wisconsin for a supposed emergency\ncovert mission in Afghanistan. Then, on December 3, 2014, Wandtke\nfound out that Owens was not in Afghanistan, but rather with Rachel\nin New Hampshire, as the result of the accidental call made from\nOwens's cell phone.\n\n\n -9-\n\fto the head -- Owens unexpectedly arrived at Wandtke's doorstep\n\nwith a limousine and roses. Owens and Wandtke celebrated New\n\nYear's Eve and spent time together during the first week of 2015.\n\nOn January 4, 2015, Owens returned to New Hampshire. Shortly\n\nthereafter, on January 11, 2015, Owens was arrested.\n\nB. Procedural Background\n\n On March 11, 2015, a grand jury indicted Owens on two\n\ncounts: interstate domestic violence (Count One) and discharge of\n\na firearm during and in relation to a crime of violence (Count\n\nTwo). On July 6, 2015, Owens filed a motion to dismiss the\n\nindictment on double jeopardy grounds; a motion to suppress\n\nevidence gathered as the result of the entry into his property,\n\nnamely, into his driveway; and, a motion to suppress search\n\nwarrants issued and executed during the investigation for his\n\nvehicles and house, electronic items (e.g., an iPhone, Magellan\n\nGPS, etc.), and an external hard drive and a laptop computer in a\n\nSwiss Army case.5 The district court held an evidentiary hearing\n\n\n5 Owens also moved to suppress DNA evidence obtained from a blood\nsample collected at the Chabot residence, and from a buccal swab\nlaw enforcement performed on his cheeks during the police\ninterview. Owens, however, eventually withdrew his motion as to\nthe blood sample collected from the Chabot residence.\nNotwithstanding, we note that a heading in his brief makes specific\nreference to the collection of the blood sample, which may be\ninterpreted to suggest his intent to still seek suppression of the\nDNA test results obtained therefrom. The Government attributes\nOwens's reference to the collection of the blood sample in the\nheading to human error. It asserts that the section with this\n\n -10-\n\fon Owens's motion to dismiss and motions to suppress. Evidence\n\nwas presented, including the testimony of the officer who touched\n\nOwens's vehicle, as well as that of the officers who drafted the\n\naffidavits on which the search warrants were based. Unpersuaded,\n\nthe district court denied Owens's motions to dismiss and to\n\nsuppress.\n\n A ten-day jury trial followed. The jury found Owens\n\nguilty of both counts. For these charges, the district court\n\nsentenced Owens to life imprisonment (240 Months on Count One and\n\nLife on Count Two). Owens timely appealed.\n\n II. ANALYSIS\n\nA. Motion to Suppress Evidence Gathered as a Result of Officer\n Dyer's Entry into the Driveway\n\n We review a district court's denial of a motion to\n\nsuppress scrutinizing its factual findings for clear error and its\n\nlegal conclusions de novo. United States v. Flores, 888 F.3d 537,\n\n543 (1st Cir. 2018) (citations omitted); United States v. Brown,\n\n\n\n\nheading actually deals with Owens's challenge to a search warrant\naffidavit that mentions DNA evidence obtained from Owens's police\ninterview buccal swab. See infra at 21-24. Based on the section's\ncontent, we agree. Neither there nor anywhere else in his brief\ndoes Owens develop an argument for suppression of the DNA test\nresults obtained from the collection of a blood sample at the\nChabot residence. Accordingly, Owens must \"forever hold [his]\npeace\" with the Government's use of this evidence. United States\nv. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations and internal\nquotation marks omitted).\n\n\n -11-\n\f510 F.3d 57, 64 (1st Cir. 2007). To succeed on appeal, a defendant\n\n\"must show that no reasonable view of the evidence supports the\n\ndistrict court's decision.\" United States v. Dunbar, 553 F.3d 48,\n\n55 (1st Cir. 2009) (citations and internal quotation marks\n\nomitted).\n\n Owens argues that Officer Dyer's entry into his driveway\n\nand touching of his vehicle parked therein constituted an illegal\n\nsearch because the driveway formed part of his house's curtilage\n\nand, therefore, was protected from warrantless searches by the\n\nFourth Amendment. Accordingly, he sustains that the district court\n\nerred in denying the suppression of evidence obtained as a result\n\nof the search, namely, any reference to the temperature of his\n\nvehicle's hood and grill.\n\n The Fourth Amendment provides in relevant part that the\n\n\"right of the people to be secure in their persons, houses, papers,\n\nand effects, against unreasonable searches and seizures, shall not\n\nbe violated.\" U.S. Const. amend. IV. \"When the Government obtains\n\ninformation by physically intruding on persons, houses, papers, or\n\neffects, a search within the original meaning of the Fourth\n\nAmendment has undoubtedly occurred.\" Florida v. Jardines, 569\n\nU.S. 1, 5 (2013) (citations and internal quotation marks omitted).\n\n For Fourth Amendment purposes, a house's curtilage is\n\n\"the area immediately surrounding and associated with the home.\"\n\n\n -12-\n\fId. at 6 (citation and internal quotation marks omitted). \"The\n\nprotection afforded [to a house's] curtilage is essentially a\n\nprotection of families and personal privacy in an area intimately\n\nlinked to the home, both physically and psychologically, where\n\nprivacy expectations are most heightened.\" California v. Ciraolo,\n\n476 U.S. 207, 212–13 (1986). Therefore, \"[w]hen a law enforcement\n\nofficer physically intrudes on the curtilage to gather evidence,\n\na search within the meaning of the Fourth Amendment has occurred.\n\n. . . Such conduct thus is presumptively unreasonable absent a\n\nwarrant.\" Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)\n\n(citation omitted).\n\n In determining whether a specific part of a house falls\n\nwithin its curtilage, we consider:\n\n [1] the proximity of the area claimed to be curtilage to\n the home, [2] whether the area is included within an\n enclosure surrounding the home, [3] the nature of the\n uses to which the area is put, and [4] the steps taken\n by the resident to protect the area from observation by\n people passing by.6\n\nBrown, 510 F.3d at 65 (alterations in original) (quoting United\n\nStates v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002) (quoting United\n\nStates v. Dunn, 480 U.S. 294, 301 (1987))). In the instant case,\n\n\n\n6 These factors are eponymously called the Dunn factors after the\nSupreme Court's seminal opinion in United States v. Dunn, 480 U.S.\n294 (1987). See, e.g., United States v. Bain, 874 F.3d 1, 14 (1st\nCir. 2017).\n\n\n -13-\n\fhowever, we need not address these factors given that, even\n\nassuming that the driveway formed part of the house's curtilage,\n\nOfficer Dyer faced exigent circumstances when he entered the\n\ndriveway and placed his hand on Owens's vehicle, which\n\ncircumscribes his warrantless search within the bounds of the\n\nFourth Amendment. We explain.\n\n Although generally a warrant must be secured before\n\nsearching a home and its curtilage, \"the warrant requirement is\n\nsubject to certain reasonable exceptions.\" Kentucky v. King\n\n(King), 563 U.S. 452, 459 (2011) (citation omitted). These\n\nexceptions are born out of courts' need to \"balance the privacy-\n\nrelated and law enforcement-related concerns to determine if the\n\nintrusion was reasonable\" under the Fourth Amendment. Maryland v.\n\nKing, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531\n\nU.S. 326, 331 (2001)). \"One well-recognized exception applies\n\nwhen 'the exigencies of the situation make the needs of law\n\nenforcement so compelling that [a] warrantless search is\n\nobjectively reasonable under the Fourth Amendment.'\" King, 563\n\nU.S. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978));\n\nsee also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016)\n\n(\"The exigent circumstances exception allows a warrantless search\n\nwhen an emergency leaves police insufficient time to seek a\n\nwarrant.\" (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))).\n\n\n -14-\n\fThis exception, commonly known as the \"exigent circumstances\n\nexception,\" has been applied in instances where the \"need 'to\n\nprevent the imminent destruction of evidence'\" justifies a\n\nwarrantless search. King, 563 U.S. at 460 (citing Brigham City,\n\nUtah v. Stuart, 547 U.S. 398, 403 (2006)).\n\n In determining whether exigent circumstances justify a\n\nwarrantless search, we examine the totality of the circumstances.\n\nMissouri v. McNeely, 569 U.S. 141, 149 (2013). Accordingly, in\n\nthe present case we begin by considering the gravity of the crime\n\nbeing investigated and the weather conditions at the time of the\n\nsearch to ascertain the constitutionality of Officer Dyer's\n\nactions. Officer Dyer was investigating a crime of the most\n\nserious nature, a potential double-homicide, on a cold December\n\nmorning. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); United\n\nStates v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985) (listing\n\nthe \"gravity of the underlying offense\" as one of the factors that\n\ncourts must consider \"[i]n determining whether the circumstances\n\nof a case fall into one of the emergency conditions characterized\n\nas exigent circumstances\"). As conceded by Owens's counsel at\n\noral argument, the temperature in Londonderry, New Hampshire at\n\nthe time of the search was 30 degrees Fahrenheit. In this cold\n\nweather, it was reasonable for Officer Dyer to believe that any\n\nwarmth emanating from the vehicle -- the evidence -- would evanesce\n\n\n -15-\n\for be destroyed before he could obtain a search warrant.\n\n It is not unprecedented to make a finding of exigency\n\nbased on a naturally occurring event's destructive consequence\n\nover critical evidence. In McNeely, the Supreme Court recognized\n\nthat the \"the natural dissipation of alcohol in the blood may\n\nsupport a finding of exigency in . . . specific case[s].\" 569\n\nU.S. at 156. Such was the case in Schmerber, where the Court\n\nconcluded that \"further delay in order to secure a warrant after\n\nthe time spent investigating the scene of the accident and\n\ntransporting the injured suspect to the hospital to receive\n\ntreatment would have threatened the destruction of evidence\" given\n\nthat it would have \"negatively affect[ed] the probative value of\n\nthe [blood alcohol test] results.\" McNeely, 569 U.S. at 152\n\n(citing Schmerber v. California, 384 U.S. 757, 770-71 (1966)).\n\n We do not find it difficult to draw parallels between\n\nthe exigent circumstances found in Schmerber and those in the\n\ninstant case. Unlike other \"destruction-of-evidence cases\" in\n\nwhich a \"suspect has control over easily disposable evidence,\"\n\nhere, like in Schmerber, law enforcement dealt with the type of\n\n\"evidence [that]. . . naturally dissipates over time in a gradual\n\nand relatively predictable manner.\" Id. at 153. Just as the\n\npassing of time negatively affected the probative value of the\n\nblood-alcohol test in Schmerber, it negatively affected the\n\n\n -16-\n\fprobative value of Officer Dyer's gauging of the temperature of\n\nOwens's vehicle through his sense of touch, and, as such,\n\nthreatened the destruction or loss of evidence. See id. at 152.\n\n The natural dissipation of the vehicle's heat, however,\n\nwas not the only way the evidence could have been lost in the\n\npresent case. If Owens turned on his vehicle's engine, as he\n\neventually did, the evidence would have likewise been destroyed.\n\nIgnition would have made it practically impossible for law\n\nenforcement to know, based on touch, whether the vehicle was\n\npreviously warm. In deciding whether to enter the driveway and\n\ntouch Owens's vehicle, Officer Dyer was \"forced to make [a] split-\n\nsecond judgment[] -- in circumstances that [were] tense,\n\nuncertain, and rapidly evolving.\" United States v. Almonte-Báez,\n\n857 F.3d 27, 31 (1st Cir. 2017) (quoting King, 563 U.S. at 466).7\n\nBecause a light inside Owens's house was shut off a few minutes\n\nbefore his entry into the driveway, Officer Dyer had an objectively\n\nreasonable basis to believe Owens was awake and therefore capable\n\nof exiting his house and turning on his vehicle at any moment,\n\nthereby destroying the evidence. These circumstances, considered\n\n\n7 Apart from knowing that Owens was being investigated in relation\nto a double-shooting, officers Dyer and Lee were aware that Owens\nhad a military background and possessed firearms in his house.\nAlso, they did not want to be seen because their instructions were\nto verify the presence of Owens's vehicles without making contact\nwith him.\n\n\n -17-\n\fin conjunction with the inevitable natural dissipation of the\n\nvehicle's warmth, support a finding of exigency and, thus, of\n\nreasonableness as to Officer Dyer's search. See Almonte-Báez, 857\n\nF.3d at 32 (\"[T]he government . . . may invoke the exigent\n\ncircumstances exception when it can identify an 'objectively\n\nreasonable basis' for concluding that, absent some immediate\n\naction, the loss or destruction of evidence is likely.\" (citation\n\nomitted)).\n\n Finally, the scope and intrusiveness of Officer Dyer's\n\nsearch also weigh in favor of its reasonableness. See Maryland v.\n\nKing, 569 U.S. at 448 (\"Th[e] application of 'traditional standards\n\nof reasonableness' requires a court to weigh 'the promotion of\n\nlegitimate governmental interests' against 'the degree to which\n\n[the search] intrudes upon an individual's privacy.'\" (quoting\n\nWyoming v. Houghton, 526 U.S. 295, 300 (1999))). The scope of\n\nOfficer Dyer's search was limited to verifying the temperature of\n\nOwens's vehicle, and its intrusiveness was minimal -- Officer Dyer\n\nsimply placed his hand on the vehicle's hood and grill for a few\n\nseconds. Cf. Schmerber, 384 U.S. at 770-72 (holding that drawing\n\na drunk-driving suspect's blood was reasonable); Cupp v. Murphy,\n\n412 U.S. 291, 296 (1973) (holding that the \"ready destructibility\n\nof the evidence\" and the suspect's observed efforts to destroy it\n\n\"justified the police in subjecting him to the very limited\n\n\n -18-\n\fsearch,\" the scraping of his fingernails, which was \"necessary to\n\npreserve the highly evanescent evidence they found under his\n\nfingernails\"); Nikolas v. City of Omaha, 605 F.3d 539, 546 (8th\n\nCir. 2010) (holding that the exterior search of a garage, which\n\nwarrants \"protection comparable to that afforded the curtilage of\n\na residence,\" by \"look[ing] through the windows was\n\nconstitutionally reasonable\").\n\n In short, based on our fact-bound and case-specific\n\ninquiry, we conclude that Officer Dyer's warrantless search of\n\nOwens's vehicle while parked in his house's driveway did not offend\n\nthe Fourth Amendment because, within the totality of the\n\ncircumstances, it was objectively reasonable for Officer Dyer to\n\nbelieve the search was necessary to prevent the imminent\n\ndestruction of evidence.8\n\n\n8 Even if we were to find that the district court erred in denying\nOwens's motion to suppress evidence referencing the temperature of\nhis vehicle, we would deem such error harmless beyond a reasonable\ndoubt. See Chapman v. California, 386 U.S. 18, 24 (1967); see\nalso Chambers v. Maroney, 399 U.S. 42, 53 (1970). As discussed in\ndetail below, the Government presented a plethora of evidence\nunrelated to the temperature of Owens's vehicle that provided a\nmore than compelling basis for Owens's convictions. See infra at\n26-29; see also United States v. Jiménez, 419 F.3d 34, 42 (1st\nCir. 2005) (finding harmless error when erroneously admitted\nevidence \"pale[d] in light of the other evidence introduced at\ntrial\").\n\n By the same token, the very limited evidence regarding the\ntemperature of Owens's vehicle was inconsequential and cumulative.\nSee Harrington v. California, 395 U.S. 250, 254 (1969) (recognizing\nthat cumulative nature of contested evidence is a factor that\n\n -19-\n\fB. Motion to Suppress the Search Warrants\n\n During the investigation of Owens's crimes, a total of\n\nfive search warrants were issued.9 On appeal, Owens argues that\n\nthe district court erred in denying his motion to suppress the\n\nevidence seized pursuant to all the warrants, albeit on two\n\ndifferent grounds. He challenges the first four warrants arguing\n\nthat the affidavits on which they were based contained false or\n\nmisleading information.10 Specifically, Owens sustains that these\n\n\n\ncontributes to the conclusion that any error in admitting the\nevidence was harmless). To the extent that the warmth emanating\nfrom Owens's vehicle was probative, it served to suggest that his\nvehicle had been recently used. But it was essentially conceded\nthat Owens had left his house and driven his vehicle in the hours\nsurrounding the incident at the Chabot residence. Owens himself\ntestified that he left his house multiple times that night and\nearly morning. Still more, video surveillance footage placed him\noutside of his house and at Dunkin' Donuts not long after the time\nof the incident. Unsurprisingly, in its closing statement the\nGovernment did not once meaningfully refer to the temperature of\nOwens's vehicle.\n\n Thus, viewed in context, the evidence that Owens's vehicle felt\nwarm when Officer Dyer touched it was simply unessential to both\nthe Government's case and the jury's guilty verdicts. See United\nStates v. Hasting, 461 U.S. 499, 506 (1983) (\"Supervisory power to\nreverse a conviction is not needed as a remedy when the error to\nwhich it is addressed is harmless since by definition, the\nconviction would have been obtained notwithstanding the asserted\nerror.\").\n9 Two state courts, New Hampshire's Salem Circuit Court and\nMaine's Biddeford District Court, and the United States District\nCourt for the District of Maine issued the search warrants Owens\nchallenges on appeal.\n10 In his brief, Owens also posits that the district court erred\nbecause on their face the search warrant affidavits did not support\n\n -20-\n\ffour affidavits contain certain misstatements, omissions, and\n\ninconsistencies that affected the issuing judges' probable cause\n\ndeterminations. Owens challenges the fifth warrant to the extent\n\nits supporting affidavit relied on: (1) evidence seized pursuant\n\nto one of the four prior \"faulty warrants,\" or (2) the match\n\nbetween DNA collected from the crime scene and the DNA obtained\n\nfrom the buccal swab taken during the police interview, which Owens\n\navers was obtained \"due to [his] uninformed and/or involuntary\n\nconsent.\" On these grounds, Owens contends that we should\n\ninvalidate the warrants or, in the alternative, remand to the\n\ndistrict court for a hearing to \"fully determine the depth and\n\nbreadth\" of the purported inaccuracies. We disagree.\n\n Affidavits supporting search warrants are presumptively\n\nvalid. United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018);\n\nUnited States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). A\n\ndefendant may \"rebut this presumption and challenge the veracity\"\n\nof a warrant affidavit at a pretrial hearing commonly known as a\n\nFranks hearing. Barbosa, 896 Fd.3d at 67 (quotation and citations\n\nomitted); see also Franks v. Delaware, 438 U.S. 154, 171 (1978).\n\n\n\n\na finding of probable cause and did not establish a nexus between\nthe locations to be searched and the items sought. Owens, however,\ndoes not support this argument with anything more than conclusory\nstatements. Accordingly, we deem it waived on appeal. Zannino,\n895 F.2d at 17 (citations omitted).\n\n\n -21-\n\fTo be entitled to a Franks hearing, however, a defendant must first\n\nmake two \"substantial preliminary showings: (1) that a false\n\nstatement or omission in the affidavit was made knowingly and\n\nintentionally or with reckless disregard for the truth; and (2) the\n\nfalsehood or omission was necessary to the finding of probable\n\ncause.\" United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)\n\n(citation and internal quotation marks omitted).11 A defendant's\n\n\"failure to make a showing on either of these two elements dooms\n\n[his] challenge.\" McLellan, 792 F.3d at 208.\n\n In its order denying Owens's motion to suppress the\n\nevidence obtained pursuant to the search warrants, the district\n\ncourt made a detailed assessment of Owens's claims as to each\n\nmisstatement and omission he identified in the affidavits. Order\n\non Def.'s Mots. to Suppress and Dismiss, United States v. Owens,\n\nNo. 2:15-CR-55-NT, 2015 WL 6445320, at *12-18 (D. Me. Oct. 23,\n\n2015). In doing so, the district court concluded that Owens did\n\nnot make a showing of the two required elements -- intentionality\n\nand materiality -- for any single misstatement or omission\n\ncontained in the affidavits. Id. Specifically, it found that the\n\nmisstatements and omissions were either the result of negligence\n\n\n\n11 These showings are referred to as the \"intentionality\" and\n\"materiality\" prongs of the Franks test. See, e.g., United States\nv. Lull, 824 F.3d 109, 113-14 (4th Cir. 2016).\n\n\n -22-\n\for innocent mistakes, or had no bearing on the probable cause\n\ndeterminations.12 Id. As to Owens's contention regarding his lack\n\nof consent to the buccal swab during the police interview, the\n\ndistrict court reviewed video recordings of the interview and\n\nconcluded that Owens's consent \"was voluntarily given, and not the\n\nresult of duress or coercion, express or implied.\" Id. at *3 n.2\n\n(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)).\n\n After a careful analysis of the record, we agree with\n\nand adopt the district court's factual findings and legal\n\nconclusions regarding Owens's failure to make the intentionality\n\nand materiality showings that would entitle him to a Franks\n\nhearing, and Owens's consent to the buccal swab during the police\n\ninterview. Accordingly, we find no error in the district court's\n\ndenial of Owens's motions to suppress the evidence seized pursuant\n\nto the search warrants. See United States v. Arias, 848 F.3d 504,\n\n511 (1st Cir. 2017) (\"In considering a district court's decision\n\nto deny a Franks hearing, we review factual determinations for\n\n\n12 We note that, in support of his motion to suppress, Owens even\nlabelled as \"recklessly false\" statements that were actually true.\nFor example, Owens argued that one of the affidavits falsely\nidentified him as a suspect, but Owens was in fact a suspect at\nthe time the affidavit was submitted. The same goes for some of\nthe omissions on which Owens's motion rested. For example, he\nclaimed that one of the affidavits omitted that the Chabot\nresidence's intruder first attempted to gain entry into the room\nwhere Carol was hiding, when the affidavit specifically mentioned\nthis fact.\n\n\n -23-\n\fclear error and the probable cause determination de novo.\"\n\n(citation omitted)); see also United States v. Tzannos, 460 F.3d\n\n128, 136 (1st Cir. 2006) (recognizing that \"a defendant must meet\n\na high bar even to get a Franks hearing\").\n\nC. Sufficiency of Evidence for Owens's Convictions\n\n In reviewing sufficiency challenges, \"[w]e view 'all\n\n[the] evidence, credibility determinations, and reasonable\n\ninferences therefrom in the light most favorable to the verdict[]\n\nin order to determine whether the jury rationally could have found\n\nthat the government established each element of the charged offense\n\nbeyond a reasonable doubt.'\" United States v. Valdés-Ayala, 900\n\nF.3d 20, 30 (1st Cir. 2018) (quoting United States v. Serunjogi,\n\n767 F.3d 132, 139 (1st Cir. 2014)). Our analysis \"is weighted\n\ntoward preservation of the jury verdict.\" Rodríguez-Torres v.\n\nCaribbean Forms Mfr., Inc., 399 F.3d 52, 57 (1st Cir. 2005). \"[A]s\n\nlong as the guilty verdict finds support in a 'plausible rendition\n\nof the record,' it must stand.\" United States v. Moran, 312 F.3d\n\n480, 487 (1st Cir. 2002) (citation omitted). Importantly, as we\n\nconduct our review, we place \"no premium . . . upon direct as\n\nopposed to circumstantial evidence\" since \"both types of proof can\n\nadequately ground a conviction.\" United States v. Valerio, 48\n\nF.3d 58, 63 (1st Cir. 1995) (quoting United States v. Ortiz, 966\n\nF.2d 707, 711 (1st Cir. 1992)).\n\n\n -24-\n\f For Owens's conviction on Count One, interstate domestic\n\nviolence, the jury must have found that the Government proved\n\nbeyond reasonable doubt that: (1) Owens was married to Rachel; (2)\n\nOwens traveled in interstate commerce -- in this case, from New\n\nHampshire to Maine -- with the intent to \"kill [or] injure\" Rachel;\n\n(3) \"as a result of such travel,\" Owens \" commit[ted] or\n\nattempt[ed] to commit a crime of violence\" against Rachel; and\n\n(4) a \"life threatening bodily injury\" resulted from Owens's\n\nactions.13 18 U.S.C. § 2261(a)(1) & (b)(2). Meanwhile, for Owens's\n\nconviction on Count Two, discharge of a firearm during and in\n\nrelation to a crime of violence, the Government had to prove that\n\n\"during and in relation to [a] crime of violence,\" namely the crime\n\nof interstate domestic violence charged in Count One, Owens\n\nknowingly \"use[d] . . . a firearm\" by discharging it \"during and\n\nin relation\" to the commission of that crime. 18 U.S.C.\n\n§ 924(c)(1)(A)(iii).\n\n Owens's sufficiency challenge rests on the Government's\n\nalleged failure to prove that Owens was the person who intruded\n\n\n\n13 The Government sought to prove the fourth prong, that Rachel\nsustained a \"life threatening bodily injury,\" for purposes of 18\nU.S.C. § 2261(b)(2), which provides a penalty of up to 20 years'\nimprisonment if defendant's commission of interstate domestic\nviolence under § 2261(a) results in \"permanent disfigurement or\nlife threatening bodily injury to the victim.\" 18 U.S.C.\n§ 2261(b)(2).\n\n\n -25-\n\finto the Chabot residence, and the purported impossibility of Owens\n\ntravelling from Londonderry to Saco, invading the Chabot\n\nresidence, and returning to Londonderry within a time frame of\n\napproximately four hours and twenty-four minutes. Owens claims\n\nthat neither Carol, Steve, nor Rachel identified him as the\n\nintruder. Furthermore, Owens stresses that Rachel identified the\n\nintruder as a \"dark skinned person with dread locks [sic],\" which\n\ndoes not match his physical description since he is a \"white male\n\nwho does not have dread locks [sic].\" As to the second ground of\n\nhis sufficiency challenge, Owens claims that, because he was\n\npresent in Londonderry at 12:11 a.m. and 4:35 a.m., as reflected\n\nby two store's video surveillance footage, it was impossible for\n\nhim to have been present in Saco when the shooting took place,\n\n2:45-2:47 a.m. He focuses on the amount of time it would have\n\ntaken him to make the trip back from Saco to Londonderry. In\n\nparticular, Owens contends that a trip from the Chabot residence\n\nin Saco to Londonderry would take him at least two hours and\n\nfifteen minutes, while under the Government's theory it took him\n\napproximately one hour and forty-eight minutes. We are not\n\npersuaded.\n\n As the Government avers, the jury was presented a vast\n\namount of direct and circumstantial evidence identifying Owens as\n\nthe Chabot residence intruder. Specifically, the Government\n\n\n -26-\n\fidentifies the following incriminating evidence presented at\n\ntrial: (1) laboratory testing confirming that Owens's DNA was found\n\nin an area where the two window panes had been affixed to each\n\nother -- an area that would not have been exposed until the\n\nintruder shattered the outer pane -- as well as in the door handle\n\nand deadlock used to access the Chabot residence; (2) boot prints\n\nand a cast of boot impression taken from the scene that matched\n\nthe boots found in Owens's car a few hours after the incident;\n\n(3) testimony regarding bloodstains found on the armrest of the\n\ndriver's door and inside the driver's door of Owens's vehicle a\n\nfew hours after the incident; (4) Steve's testimony identifying\n\nthe intruder as a person with a similar physique to Owens's and\n\nwho, like Owens, wore glasses; (5) expert testimony revealing\n\nOwens's efforts to manipulate his laptop's clock to make it seem\n\nthat he was at his Londonderry home at the time of the incident;\n\nand, relatedly, (6) testimony regarding Owens's attempt to\n\nmanufacture an alibi by having his former boss lie to law\n\nenforcement about a Skype call that never took place. This\n\nevidence, in conjunction with the rest of the evidence presented\n\nat trial, allows a reasonable jury to conclude beyond reasonable\n\ndoubt that it was Owens who broke into the Chabot's residence.14\n\n\n14 Although not specifically listed by the Government as evidence\nthat led the jury to identify Owens as the Chabot residence's\nintruder, we note that the .9mm ammunition stamped \"WCC 1987\" and\n\n -27-\n\f Owens's reference to Rachel's alleged identification of\n\nthe intruder as a \"dark skinned person with dread locks [sic],\"\n\nwhich we read as an attempt to highlight evidence of exculpatory\n\nnature, does not help him. We are not to \"weigh the evidence or\n\nmake credibility judgments\" in our sufficiency review, as \"these\n\ntasks are solely within the jury's province.\" Serunjogi, 767 F.3d\n\nat 139 (quoting United States v. Hernández, 218 F.3d 58, 64 (1st\n\nCir. 2000)).15\n\n Finally, as to the alleged impossibility of Owens making\n\nthe trip back from Saco to Londonderry in less than two hours and\n\nfifteen minutes, the jury was presented with ample testimonial\n\nevidence, including Owens's own trial testimony, reflecting that\n\nthis ninety-mile trip usually took about one hour and thirty\n\nminutes. Moreover, Carol testified that Owens frequently bragged\n\nabout making the trip in just over an hour. Accordingly, the jury\n\nwas presented with sufficient evidence to conclude that Owens's\n\nLondonderry-Saco roundtrip would have lasted three hours or less,\n\n\n\n\ndark clothes seized from Owens's house also strongly support the\njury's guilty verdicts. The .9mm ammunition casings matched the\nshell casings recovered from the Chabot residence, while the dark\nclothes, some of which was found in Owens's washing machine,\nmatched that worn by the residence's intruder.\n15 In any event, we note that the record is devoid of any testimony\ndescribing the intruder as such. What Rachel did testify was that\nthe intruder was wearing a \"Jamaican hat\" or \"floppy [black] hat.\"\n\n\n -28-\n\fwhich fits easily within the four hour and twenty-four-minute\n\nwindow separating the two instances in which he was recorded at\n\nthe Londonderry stores.\n\n Based on the foregoing analysis, we conclude that there\n\nwas sufficient evidence to support Owens's convictions.\n\nD. Reasonableness of Owens's Life Sentence\n\n Owens challenges the procedural and substantive\n\nreasonableness of his sentence. He claims the district court erred\n\nprocedurally by not considering some factors outlined in 18 U.S.C.\n\n§ 3553, and that it substantively erred in imposing a life\n\nsentence.\n\n Our review is bifurcated. First, we ensure the district\n\ncourt did not commit any procedural errors, such as \"failing to\n\nconsider the section 3553(a) factors, selecting a sentence based\n\non clearly erroneous facts, or failing to adequately explain the\n\nchosen sentence.\" United States v. Gierbolini-Rivera, 900 F.3d 7,\n\n12 (1st Cir. 2018) (citation omitted). If a sentence is\n\nprocedurally sound, we proceed to the second step of our inquiry:\n\ndetermining whether the sentence is substantively reasonable. Id.\n\nIn reviewing the substantive reasonableness of a sentence, we\n\n\"focus[] on the duration of the sentence in light of the totality\n\nof the circumstances.\" Id. (citing United States v. Del Valle-\n\nRodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). Although a district\n\n\n -29-\n\fcourt is \"under a mandate to consider a myriad of relevant\n\nfactors,\" the weight it decides to afford to those factors is\n\n\"largely within the court's informed discretion.\" United States\n\nv. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also 18 U.S.C.\n\n§ 3553(a). We will ultimately find a sentence substantively\n\nreasonable \"so long as the sentencing court has provided a\n\n'plausible sentencing rationale' and reached a 'defensible\n\nresult.'\" Gierbolini-Rivera, 900 F.3d at 12 (citing United States\n\nv. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).16\n\n Because Owens failed to preserve his objection below, we\n\nreview his procedural challenge based on the district court's\n\nalleged failure to consider § 3553(a) factors for plain error.\n\nId. at 13. Hence, for Owens's procedural challenge to succeed, he\n\nmust show: \"(1) that an error occurred, (2) which was clear or\n\nobvious and which not only (3) affected the defendant's substantial\n\nrights, but also (4) seriously impaired the fairness, integrity,\n\nor public reputation of judicial proceedings.\" Id. at 12 (citations\n\n\n\n16 In considering a challenge to the substantive reasonableness\nof a sentence preserved below, this court applies the abuse of\ndiscretion standard. Gierbolini-Rivera, 900 F.3d at 14. Owens,\nhowever, did not object to his life sentence below. In such cases,\nit remains an open question in this Circuit whether the abuse of\ndiscretion standard or the plain error standard applies. Id. at\n15 (citation omitted). Notwithstanding, we need not decide this\nissue in the instant case given that Owens's claim fails under\nboth.\n\n\n -30-\n\fomitted).\n\n Owens's procedural challenge to his sentence fails on\n\nthe first prong of the plain error test. The record reveals that\n\nthe district court took into consideration all the mitigating\n\nfactors Owens claims it did not, namely, his military accolades,\n\nlack of criminal history, productive work history, and age. See\n\n18 U.S.C. § 3553(a) (stating that a sentencing court \"shall\n\nconsider . . . the history and characteristics of the defendant\").\n\nThe district court, however, weighed these mitigating factors\n\nagainst the following aggravating factors: the severity of the\n\ncrime; Owens's premeditation, given that he planned to kill Rachel\n\nboth to avoid the responsibility of caring for her as she suffered\n\nfrom dementia and to be able to continue his affair, while avoiding\n\nthe scorn that divorcing Rachel would have caused; the attempted\n\nmurder of a witness and friend, Steve, to prevent him from\n\nidentifying Owens as the intruder; Owens's deceitful character, as\n\nrevealed through his participation at trial and during allocution;\n\nand, finally, the need to protect the public, among others. See\n\nid. This balancing of sentencing factors \"is precisely the\n\nfunction that a sentencing court is expected to perform,\" United\n\nStates v. Ledée, 772 F.3d 21, 41 (1st Cir. 2014) (citation\n\nomitted), and we find that the district judge did not procedurally\n\nerr, plainly or otherwise, while carrying it out in the present\n\n\n -31-\n\fcase.\n\n Further, the district court thoroughly explained the\n\nrationale behind Owens's life sentence. Apart from the factors\n\nlisted above, it emphasized Owens's \"cold-blooded behavior . . .\n\n[and] obvious lack of conscience,\" as well as the \"long lasting\n\nemotional damage to both Chabots\" and the severity of the injuries\n\ninflicted on Rachel. Considering the totality of the\n\ncircumstances of Owens's crime, we find that the district court's\n\nlife sentence is a defensible result. See Gierbolini-Rivera, 900\n\nF.3d at 12. Accordingly, we conclude that the district court did\n\nnot substantively err.\n\nE. Motion to Dismiss the Indictment on Double Jeopardy Grounds\n\n Finally, Owens claims that the district court erred in\n\ndenying his motion to dismiss the indictment on double jeopardy\n\ngrounds. The Double Jeopardy Clause \"provides that no person may\n\nbe tried more than once 'for the same offence.'\" Currier v.\n\nVirginia, 138 S. Ct. 2144, 2149 (2018). It protects \"an individual\n\nagainst (1) a second prosecution for the same offense, following\n\nan acquittal; (2) a second prosecution for the same offense,\n\nfollowing a conviction; and (3) multiple punishments for the same\n\noffense.\" United States v. Stoller, 78 F.3d 710, 714 (1st Cir.\n\n1996) (citation omitted). Owens, however, does not establish that\n\nhis double jeopardy challenge is premised on a prior criminal\n\n\n -32-\n\fconviction, acquittal, or punishment for the same offenses for\n\nwhich he was convicted and sentenced in this case.17 We thus find\n\nno error in the district court's denial of his motion to dismiss\n\nthe indictment on double jeopardy grounds.\n\n III. CONCLUSION\n\n For the reasons explained above, each of Owens's claims\n\nis unavailing. We therefore affirm the district court's denial of\n\nhis pretrial motions, his convictions, and sentence.\n\n Affirmed.\n\n\n\n\n17He does not even allege that he was subject to any prior criminal\nprosecution for offenses resulting from the events that unfolded\nat the Chabot residence.\n\n\n -33-\n[END_CASE]",
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4,594,154 | GGNSC ADMINISTRATIVE SERVICES, LLC; Golden Gate National Senior Care, LLC ; GGNSC Holdings, LLC; GGNSC Chestnut Hill, LLC, D/B/A Golden Living Center-Heathwood, Plaintiffs, Appellees, v. Jackalyn M. SCHRADER, as the Personal Representative of the Estate of Emma J. Schrader, Defendant, Appellant. | GGNSC Admin. Servs., LLC v. Schrader | 2019-02-26 | 18-1779P | U.S. Court of Appeals for the First Circuit | {"judges": "Howard, Lynch, Lipez", "parties": "", "opinions": [{"author": "LYNCH, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1779\n\n GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR\n CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a\n Golden Living Center - Heathwood,\n\n Plaintiffs, Appellees,\n\n v.\n\n JACKALYN M. SCHRADER, as the personal representative of the\n estate of Emma J. Schrader,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Douglas P. Woodlock, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Lynch and Lipez, Circuit Judges.\n\n\n John Vail, with whom John Vail Law, PLLC, Daniel T. Landry,\nDavid J. Hoey, and Law Offices of David J. Hoey, P.C. were on\nbrief, for appellant.\n William Alvarado Rivera, Meryl D. Grenadier, and Kelly R.\nBagby on brief for AARP and AARP Foundation, amici curiae.\n Robert E. Curtis, Jr. on brief for Massachusetts Advocates\nfor Nursing Home Reform, amicus curiae.\n Joseph M. Desmond, with whom Justin L. Amos and Morrison\nMahoney LLP were on brief, for appellees.\n\fFebruary 26, 2019\n\f LYNCH, Circuit Judge. This case is about arbitration\n\nagreements, nursing homes, and wrongful death claims under\n\nMassachusetts law. A set of organizations (collectively, GGNSC)\n\nthat oversees the Golden Living Center Heathwood (Heathwood) in\n\nChestnut Hill sued in federal court to compel arbitration of an\n\nunderlying state wrongful death action brought by the personal\n\nrepresentative of a deceased former Heathwood resident. The\n\nfederal court compelled arbitration and declined to issue a stay\n\nof the state wrongful death action. GGNSC Chestnut Hill LLC v.\n\nSchrader, No. CV 16-10525-DPW, 2018 WL 1582555, at *9-10 (D. Mass.\n\nMar. 31, 2018). Whether arbitration was required turns on how\n\nstate law characterizes wrongful death actions.\n\n The personal representative appeals. She argues that as\n\nthe plaintiff in the wrongful death suit, under state law, she is\n\nnot bound by the decedent's agreement to arbitrate with GGNSC\n\nbecause her wrongful death right of recovery is independent of the\n\ndecedent's wrongful death claim. GGNSC argues, to the contrary,\n\nthat Massachusetts beneficiaries' wrongful death claims are\n\nderivative of the decedent's wrongful death claim, and so the\n\narbitration agreement is binding. Because that dispute turns on\n\nthe characterization of wrongful death actions by the\n\nCommonwealth, we certify questions to the Massachusetts Supreme\n\nJudicial Court (SJC) under its Rule 1:03. See Bos. Gas Co. v.\n\nCentury Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008).\n\n\n - 3 -\n\f I.\n\n The parties do not dispute the relevant facts, which we\n\ntake largely from the district court opinion. Emma Schrader was\n\nbrought by ambulance to Heathwood in February 2013. After Emma's\n\nadmission and treatment, Jackalyn M. Schrader (Schrader), Emma's\n\ndaughter and appellant here, signed several documents for her\n\nmother, including a standard (undated) \"Alternative Dispute\n\nResolution Agreement\" (Agreement). Schrader had authority to sign\n\nthese documents on her mother's behalf -- on September 11, 2011,\n\nEmma had executed a document granting Schrader her power of\n\nattorney.\n\n The Agreement states in bold letters that a signature on\n\nthe Agreement is not a condition of admission to or continued\n\nresidence in the facility. It also says that the resident may\n\nrevoke \"the Agreement by sending written notice to [Heathwood]\n\nwithin thirty (30) days of signing it.\" The Agreement form has\n\ntwo signature lines: one to accept and one to decline. Schrader\n\nsigned the accept line.\n\n The Agreement provides that any dispute covered by the\n\nAgreement \"shall be resolved exclusively by an ADR process that\n\nshall include mediation and, where mediation is not successful,\n\nbinding arbitration.\" The Agreement applies to \"the Resident,\" a\n\nterm that the Agreement defines to include \"all persons whose claim\n\nis or may be derived through or on behalf of the Resident,\n\n\n - 4 -\n\fincluding any next of kin, guardian, executor, administrator,\n\nlegal representative, or heir of the Resident, and any person who\n\nhas executed this Agreement on the Resident's behalf.\"1\n\n Emma died on December 3, 2013. Schrader brought a\n\nwrongful death action against GGNSC in Massachusetts state court\n\non February 4, 2016.2 The state complaint alleges that Schrader\n\nbrought the action as the personal representative of Emma's estate\n\n\"on behalf of the heirs of the decedent.\" And it alleges that\n\nEmma's injuries were \"injuries for which she would have been\n\nentitled to bring an action had she survived, and the right to\n\nbring such action survives her.\" The injuries alleged were a\n\n\"preventable sacral decubitus\" and resulting pain and suffering,\n\nwhich eventually required surgery and transfer to a special care\n\nfacility, and from which Emma never recovered.\n\n GGNSC then brought this federal court action on March\n\n15, 2016, under the Federal Arbitration Act to compel Schrader to\n\narbitrate the dispute. The district court granted the motion to\n\ncompel. Schrader, 2018 WL 1582555, at *10. The district court\n\n\n\n 1 GGNSC has never argued that Jackalyn's wrongful death\nclaims are subject to the Agreement's mandatory arbitration\nprovision because she is the \"person who has executed th[e]\nAgreement on the Resident's behalf.\"\n 2 Jackalyn says she also brought a negligence claim. The\ndistrict court treated this case as only concerning wrongful death,\nfinding the two claims to be equivalent for these purposes. The\nparties have done the same on appeal, so we do too.\n\n\n - 5 -\n\ffirst found that there was a valid contractual agreement to\n\narbitrate, id. at *4, and that the agreement was neither\n\nprocedurally nor substantively unconscionable under Massachusetts\n\nlaw, id. at *5. Schrader has not appealed those conclusions, so\n\nwe take them as established fact.\n\n The district court next considered whether Schrader's\n\nwrongful death claims, which she brought in her capacity as\n\npersonal representative of her mother's estate, were derivative of\n\nclaims that Emma could have brought such that the claims were\n\nsubject to arbitration. Id. at *6. Schrader contended that her\n\nwrongful death claims were not subject to the Agreement because a\n\nwrongful death beneficiary's claims are independent of any claims\n\nfalling within the scope of the Agreement. Id.\n\n Both parties argued that the issue turned on\n\nMassachusetts state law. As no state opinion clearly decided the\n\nissue, the district court made an informed prediction that the SJC\n\nwould hold that \"a wrongful death claim is a derivative claim as\n\nto which the decedent's representatives and beneficiaries would be\n\nbound by [the decedent's] agreement to arbitrate.\" Id. at *8.\n\nThe district court highlighted several reasons for its conclusion:\n\nFirst, claimants \"can only recover if the decedent died under such\n\ncircumstances that the deceased could have recovered damages for\n\npersonal injuries if his death had not resulted.\" Id. at *7\n\n(internal quotation marks omitted). Second, \"the elements in a\n\n\n - 6 -\n\fwrongful death claim mirror the elements necessary to prove\n\nnegligence had the decedent survived,\" so, \"effectively,\" \"there\n\nwould be no cause of action unless the decedent could have sued.\"\n\nId. at *7 n.3. And third, under Massachusetts law, one can only\n\nbring a \"wrongful death claim as the executor or administrator of\n\nthe decedent's estate.\" Id. at *7. The district court added that,\n\nthough the issue was one that might yield a different outcome from\n\nstate to state, \"the weight of persuasive authority treats wrongful\n\ndeath claims as derivative.\" Id. at *8.\n\n After this, Schrader, for the first time, asked the\n\ndistrict court for certification to the SJC. GGNSC Chestnut Hill\n\nLLC v. Schrader, No. CV 16-10525-DPW, 2018 WL 3405339, at *1 (D.\n\nMass. July 12, 2018). The district court declined to certify any\n\nquestion at the \"thirteenth-hour.\" Id.\n\n II.\n\n This court may, on its own motion, certify questions to\n\nthe SJC when those questions may be determinative of the pending\n\ncause of action and when there is no controlling precedent that\n\nanswers them. Hundley v. Marsh (In re Hundley), 603 F.3d 95, 98\n\n(1st Cir. 2010); Mass. S.J.C. R. 1:03. This case meets both\n\nconditions. Because the Agreement's enforceability as to\n\nSchrader's claims turns on important issues of state law, including\n\nstatutory interpretation, common law, and matters of policy, we\n\nthink it best to certify questions to the SJC.\n\n\n - 7 -\n\f We begin with background. \"[A]rbitration is a matter of\n\ncontract.\" Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67\n\n(2010). State contract law controls \"who is bound by [arbitration\n\nagreements].\" Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630\n\n(2009). We look to Massachusetts law to determine whether\n\nSchrader, in bringing the wrongful death action, is bound by her\n\nmother's Agreement to arbitrate claims against GGNSC.3 Resolution\n\nof this state law issue will resolve this federal case.\n\n The parties argue that wrongful death claims are either\n\n\"independent\" (Schrader) or \"derivative\" (GGNSC) of the claim\n\nconcerning the decedent's death. Schrader argues that\n\nMassachusetts segregates the rights of claimants and gives five\n\nindependent bases on which a claimant may bring a wrongful death\n\nclaim. See Mass. Gen. Laws ch. 229, § 2.\n\n GGNSC responds that, in a case, like this one, that is\n\nbased on Section 2(1) or 2(2) of the wrongful death statute, the\n\nplaintiff must prove that the defendant negligently caused the\n\ndecedent's death. GGNSC argues that because proving wrongful death\n\n\n 3 We reject Schrader's general argument that she, a non-\nsignatory to the Agreement (only having signed it using her\nmother's power of attorney), cannot be compelled to arbitrate her\nwrongful death beneficiary claims. Schrader waived this argument\nby not raising it before the district court. See Vineberg v.\nBissonnette, 548 F.3d 50, 57 (1st Cir. 2008). Even absent waiver,\nthe argument lacks merit: There are exceptions to the \"general\nproposition\" that \"a contract cannot bind a non-party.\" Grand\nWireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 9 (1st Cir.\n2014); see id. at 9-10.\n\n\n - 8 -\n\fis contingent on proving underlying negligence against the\n\ndecedent, the beneficiaries' right of recovery must be viewed as\n\nderived from the decedent's wrongful death claim. GGNSC highlights\n\nthat Massachusetts requires that all wrongful death actions be\n\nbrought by a personal representative of the decedent. And GGNSC\n\nadds that its view is consistent with how the SJC has treated\n\nanalogous claims, and that good policy reasons support its reading.\n\n Schrader responds that, although only a personal\n\nrepresentative may bring the suit, \"it is the [beneficiary's] cause\n\nof action.\" Gaudette v. Webb, 284 N.E.2d 222, 230 (Mass. 1972).\n\nSchrader adds that, under the Massachusetts wrongful death\n\nstatute, beneficiaries may receive different damages from those\n\nthat would have been available to a decedent or her estate.\n\n Schrader also argues that Massachusetts law is not\n\nunsettled and that it has resolved this question. She says the\n\nSJC has consistently viewed wrongful death claims as independent.\n\nGGNSC responds that, although Massachusetts may once have viewed\n\nits wrongful death action as independent, see, e.g., McCarthy v.\n\nWood Lumber Co., 107 N.E. 439, 440 (1914), later amendments to the\n\nwrongful death statute have invalidated that classification. In\n\n1958, the legislature limited recovery under the statute to \"such\n\ncircumstances that the deceased could have recovered damages for\n\npersonal injury if his death had not resulted.\" 1958 Mass. Acts\n\n122, ch. 238 § 1. And the SJC has since held that the\n\n\n - 9 -\n\fCommonwealth's \"wrongful death statutes w[ould] no longer be\n\nregarded as 'creating the right' to recovery for wrongful death\" --\n\nthe law had \"evolved to the point where it may now be held that\n\nthe right to recovery for wrongful death is of common law origin.\"\n\nGaudette, 284 N.E.2d at 229.\n\n We hold that Massachusetts law does not clearly decide\n\nthe independent/derivative or other relevant questions about the\n\nstatus of wrongful death actions in relation to the decedent. The\n\nparties have provided us with no citation to a dispositive case.\n\nOur own research reveals that the SJC has most recently reserved\n\nthe question this case presents. See Johnson v. Kindred\n\nHealthcare, Inc., 2 N.E.3d 849, 856 n.14 (Mass. 2014) (declining\n\nto address whether \"a decedent's agreement to arbitrate future\n\ndisputes\" binds \"the statutory beneficiaries of a wrongful death\n\nclaim\").\n\n Even absent controlling precedent, certification may be\n\ninappropriate when \"the course the state court would take is\n\nreasonably clear.\" Ropes & Gray LLP v. Jalbert (In re Engage,\n\nInc.), 544 F.3d 50, 53 (1st Cir. 2008) (internal quotation marks\n\nand alterations omitted). This is not such a case.\n\n It may be that the SJC will conclude that wrongful death\n\nclaims have both independent and derivative aspects. As noted, in\n\nMassachusetts, claims under the first clause of the Massachusetts\n\nwrongful death statute require a personal representative to show\n\n\n - 10 -\n\fnegligence against the decedent resulting in death. See Mass.\n\nGen. Laws ch. 229, § 2. But as the SJC has noted, \"[i]n a very\n\nreal sense,\" a wrongful death claim \"is the [beneficiary's] cause\n\nof action.\" Gaudette, 284 N.E.2d at 230.\n\n The issue here has yielded \"profound conflict\" across\n\nthe nation.4 Restatement (Second) of Judgments § 46 cmt. b. GGNSC\n\nasserts that twenty-seven states find wrongful death claims to be\n\nderivative, while fourteen states find them to be independent.\n\nGGNSC adds a wrinkle. It says that the answer to the\n\nindependent/derivative question may possibly require addressing\n\nanother state-law issue. It argues that at least one state,\n\ndespite holding that a wrongful death claim is independent, has\n\nheld that, depending on the facts, such a claim may still be\n\nsubject to the decedent's arbitration agreement. See Allen v.\n\nPacheco, 71 P.3d 375, 379 (Colo. 2003) (en banc).\n\n There are also substantial policy considerations at\n\nstake. The SJC has observed that \"[l]ike all common-law causes of\n\naction, [Massachusetts's] common law of wrongful death evolves to\n\nmeet changes in the evolving life of the Commonwealth.\" Matsuyama\n\nv. Birnbaum, 890 N.E.2d 819, 837 (Mass. 2008). The American\n\n\n 4 Decisions within the District of Massachusetts under\nMassachusetts law are also split. Compare Schrader, 2018 WL\n1582555, with Angelo v. USA Triathlon, No. CIV.A. 13-12177-LTS,\n2014 WL 4716195 (D. Mass. Sept. 19, 2014), and Chung v.\nStudentCity.com, Inc., No. CIV.A. 10-10943-RWZ, 2011 WL 4074297\n(D. Mass. Sept. 9, 2011).\n\n\n - 11 -\n\fAssociation of Retired Persons (AARP) and Massachusetts Advocates\n\nfor Nursing Home Reform, amici in favor of reversal, ably highlight\n\nnumerous issues that may or may not come under the rubric of\n\n\"changes in the evolving life of the Commonwealth.\"5\n\n Because this case presents an unresolved question of\n\nMassachusetts law whose answer is unclear, and because resolving\n\nthat issue may implicate policy judgments best left to the SJC, we\n\nexercise our discretion in favor of certification. See In re\n\nEngage, 544 F.3d at 53; see also Steinmetz v. Coyle & Caron, Inc.,\n\n862 F.3d 128, 142 (1st Cir. 2017); Showtime Entm't, LLC v. Town of\n\nMendon, 769 F.3d 61, 82 (1st Cir. 2014).\n\n We certify these questions to the Massachusetts SJC:\n\n 1. Is the wrongful death claim of Emma\n Schrader's statutory heirs derivative or\n independent of Emma Schrader's own cause\n of action?\n 2. If the answer to the first question does\n not resolve the issue presented to the\n federal court, is Jackalyn Schrader's\n wrongful death claim nonetheless subject\n to Emma Schrader's Agreement that her\n \"next of kin, guardian, executor,\n administrator, legal representative, or\n heir\" would arbitrate claims against\n GGNSC?\n\n\n 5 AARP argues that nursing facility residents suffer from\nhigh rates of abuse and neglect, that federal and state enforcement\nefforts have inadequately protected those residents, and that\narbitration fails to address that culture of abuse and neglect.\nMassachusetts Advocates for Nursing Home Reform add that the\nCommonwealth has a public policy interest in maintaining\ntransparency in nursing homes because decisions in litigation are\npublic and that is not necessarily true of arbitrations.\n\n\n - 12 -\n\fWe welcome any additional observations about Massachusetts law\n\nthat the SJC may wish to offer.\n\n III.\n\n We direct the Clerk of this court to forward to the\n\nMassachusetts SJC, under this court's official seal, a copy of the\n\ncertified questions and our decision here, and a copy of the briefs\n\nand appendix filed by the parties and amici curiae, and a copy of\n\nthe record filed in the district court, which set forth all facts\n\nrelevant to the issues certified. We retain jurisdiction pending\n\nthat court's determination.\n\n\n\n\n - 13 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4371407/", "author_raw": "LYNCH, Circuit Judge"}]} | HOWARD | LYNCH | LIPEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4594154/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: GGNSC ADMINISTRATIVE SERVICES, LLC; Golden Gate National Senior Care, LLC ; GGNSC Holdings, LLC; GGNSC Chestnut Hill, LLC, D/B/A Golden Living Center-Heathwood, Plaintiffs, Appellees, v. Jackalyn M. SCHRADER, as the Personal Representative of the Estate of Emma J. Schrader, Defendant, Appellant.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1779\n\n GGNSC ADMINISTRATIVE SERVICES, LLC; GOLDEN GATE NATIONAL SENIOR\n CARE, LLC; GGNSC HOLDINGS, LLC; GGNSC CHESTNUT HILL, LLC, d/b/a\n Golden Living Center - Heathwood,\n\n Plaintiffs, Appellees,\n\n v.\n\n JACKALYN M. SCHRADER, as the personal representative of the\n estate of Emma J. Schrader,\n\n Defendant, Appellant.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Douglas P. Woodlock, U.S. District Judge]\n\n\n Before\n\n Howard, Chief Judge,\n Lynch and Lipez, Circuit Judges.\n\n\n John Vail, with whom John Vail Law, PLLC, Daniel T. Landry,\nDavid J. Hoey, and Law Offices of David J. Hoey, P.C. were on\nbrief, for appellant.\n William Alvarado Rivera, Meryl D. Grenadier, and Kelly R.\nBagby on brief for AARP and AARP Foundation, amici curiae.\n Robert E. Curtis, Jr. on brief for Massachusetts Advocates\nfor Nursing Home Reform, amicus curiae.\n Joseph M. Desmond, with whom Justin L. Amos and Morrison\nMahoney LLP were on brief, for appellees.\n\fFebruary 26, 2019\n\f LYNCH, Circuit Judge. This case is about arbitration\n\nagreements, nursing homes, and wrongful death claims under\n\nMassachusetts law. A set of organizations (collectively, GGNSC)\n\nthat oversees the Golden Living Center Heathwood (Heathwood) in\n\nChestnut Hill sued in federal court to compel arbitration of an\n\nunderlying state wrongful death action brought by the personal\n\nrepresentative of a deceased former Heathwood resident. The\n\nfederal court compelled arbitration and declined to issue a stay\n\nof the state wrongful death action. GGNSC Chestnut Hill LLC v.\n\nSchrader, No. CV 16-10525-DPW, 2018 WL 1582555, at *9-10 (D. Mass.\n\nMar. 31, 2018). Whether arbitration was required turns on how\n\nstate law characterizes wrongful death actions.\n\n The personal representative appeals. She argues that as\n\nthe plaintiff in the wrongful death suit, under state law, she is\n\nnot bound by the decedent's agreement to arbitrate with GGNSC\n\nbecause her wrongful death right of recovery is independent of the\n\ndecedent's wrongful death claim. GGNSC argues, to the contrary,\n\nthat Massachusetts beneficiaries' wrongful death claims are\n\nderivative of the decedent's wrongful death claim, and so the\n\narbitration agreement is binding. Because that dispute turns on\n\nthe characterization of wrongful death actions by the\n\nCommonwealth, we certify questions to the Massachusetts Supreme\n\nJudicial Court (SJC) under its Rule 1:03. See Bos. Gas Co. v.\n\nCentury Indem. Co., 529 F.3d 8, 15 (1st Cir. 2008).\n\n\n - 3 -\n\f I.\n\n The parties do not dispute the relevant facts, which we\n\ntake largely from the district court opinion. Emma Schrader was\n\nbrought by ambulance to Heathwood in February 2013. After Emma's\n\nadmission and treatment, Jackalyn M. Schrader (Schrader), Emma's\n\ndaughter and appellant here, signed several documents for her\n\nmother, including a standard (undated) \"Alternative Dispute\n\nResolution Agreement\" (Agreement). Schrader had authority to sign\n\nthese documents on her mother's behalf -- on September 11, 2011,\n\nEmma had executed a document granting Schrader her power of\n\nattorney.\n\n The Agreement states in bold letters that a signature on\n\nthe Agreement is not a condition of admission to or continued\n\nresidence in the facility. It also says that the resident may\n\nrevoke \"the Agreement by sending written notice to [Heathwood]\n\nwithin thirty (30) days of signing it.\" The Agreement form has\n\ntwo signature lines: one to accept and one to decline. Schrader\n\nsigned the accept line.\n\n The Agreement provides that any dispute covered by the\n\nAgreement \"shall be resolved exclusively by an ADR process that\n\nshall include mediation and, where mediation is not successful,\n\nbinding arbitration.\" The Agreement applies to \"the Resident,\" a\n\nterm that the Agreement defines to include \"all persons whose claim\n\nis or may be derived through or on behalf of the Resident,\n\n\n - 4 -\n\fincluding any next of kin, guardian, executor, administrator,\n\nlegal representative, or heir of the Resident, and any person who\n\nhas executed this Agreement on the Resident's behalf.\"1\n\n Emma died on December 3, 2013. Schrader brought a\n\nwrongful death action against GGNSC in Massachusetts state court\n\non February 4, 2016.2 The state complaint alleges that Schrader\n\nbrought the action as the personal representative of Emma's estate\n\n\"on behalf of the heirs of the decedent.\" And it alleges that\n\nEmma's injuries were \"injuries for which she would have been\n\nentitled to bring an action had she survived, and the right to\n\nbring such action survives her.\" The injuries alleged were a\n\n\"preventable sacral decubitus\" and resulting pain and suffering,\n\nwhich eventually required surgery and transfer to a special care\n\nfacility, and from which Emma never recovered.\n\n GGNSC then brought this federal court action on March\n\n15, 2016, under the Federal Arbitration Act to compel Schrader to\n\narbitrate the dispute. The district court granted the motion to\n\ncompel. Schrader, 2018 WL 1582555, at *10. The district court\n\n\n\n 1 GGNSC has never argued that Jackalyn's wrongful death\nclaims are subject to the Agreement's mandatory arbitration\nprovision because she is the \"person who has executed th[e]\nAgreement on the Resident's behalf.\"\n 2 Jackalyn says she also brought a negligence claim. The\ndistrict court treated this case as only concerning wrongful death,\nfinding the two claims to be equivalent for these purposes. The\nparties have done the same on appeal, so we do too.\n\n\n - 5 -\n\ffirst found that there was a valid contractual agreement to\n\narbitrate, id. at *4, and that the agreement was neither\n\nprocedurally nor substantively unconscionable under Massachusetts\n\nlaw, id. at *5. Schrader has not appealed those conclusions, so\n\nwe take them as established fact.\n\n The district court next considered whether Schrader's\n\nwrongful death claims, which she brought in her capacity as\n\npersonal representative of her mother's estate, were derivative of\n\nclaims that Emma could have brought such that the claims were\n\nsubject to arbitration. Id. at *6. Schrader contended that her\n\nwrongful death claims were not subject to the Agreement because a\n\nwrongful death beneficiary's claims are independent of any claims\n\nfalling within the scope of the Agreement. Id.\n\n Both parties argued that the issue turned on\n\nMassachusetts state law. As no state opinion clearly decided the\n\nissue, the district court made an informed prediction that the SJC\n\nwould hold that \"a wrongful death claim is a derivative claim as\n\nto which the decedent's representatives and beneficiaries would be\n\nbound by [the decedent's] agreement to arbitrate.\" Id. at *8.\n\nThe district court highlighted several reasons for its conclusion:\n\nFirst, claimants \"can only recover if the decedent died under such\n\ncircumstances that the deceased could have recovered damages for\n\npersonal injuries if his death had not resulted.\" Id. at *7\n\n(internal quotation marks omitted). Second, \"the elements in a\n\n\n - 6 -\n\fwrongful death claim mirror the elements necessary to prove\n\nnegligence had the decedent survived,\" so, \"effectively,\" \"there\n\nwould be no cause of action unless the decedent could have sued.\"\n\nId. at *7 n.3. And third, under Massachusetts law, one can only\n\nbring a \"wrongful death claim as the executor or administrator of\n\nthe decedent's estate.\" Id. at *7. The district court added that,\n\nthough the issue was one that might yield a different outcome from\n\nstate to state, \"the weight of persuasive authority treats wrongful\n\ndeath claims as derivative.\" Id. at *8.\n\n After this, Schrader, for the first time, asked the\n\ndistrict court for certification to the SJC. GGNSC Chestnut Hill\n\nLLC v. Schrader, No. CV 16-10525-DPW, 2018 WL 3405339, at *1 (D.\n\nMass. July 12, 2018). The district court declined to certify any\n\nquestion at the \"thirteenth-hour.\" Id.\n\n II.\n\n This court may, on its own motion, certify questions to\n\nthe SJC when those questions may be determinative of the pending\n\ncause of action and when there is no controlling precedent that\n\nanswers them. Hundley v. Marsh (In re Hundley), 603 F.3d 95, 98\n\n(1st Cir. 2010); Mass. S.J.C. R. 1:03. This case meets both\n\nconditions. Because the Agreement's enforceability as to\n\nSchrader's claims turns on important issues of state law, including\n\nstatutory interpretation, common law, and matters of policy, we\n\nthink it best to certify questions to the SJC.\n\n\n - 7 -\n\f We begin with background. \"[A]rbitration is a matter of\n\ncontract.\" Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67\n\n(2010). State contract law controls \"who is bound by [arbitration\n\nagreements].\" Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630\n\n(2009). We look to Massachusetts law to determine whether\n\nSchrader, in bringing the wrongful death action, is bound by her\n\nmother's Agreement to arbitrate claims against GGNSC.3 Resolution\n\nof this state law issue will resolve this federal case.\n\n The parties argue that wrongful death claims are either\n\n\"independent\" (Schrader) or \"derivative\" (GGNSC) of the claim\n\nconcerning the decedent's death. Schrader argues that\n\nMassachusetts segregates the rights of claimants and gives five\n\nindependent bases on which a claimant may bring a wrongful death\n\nclaim. See Mass. Gen. Laws ch. 229, § 2.\n\n GGNSC responds that, in a case, like this one, that is\n\nbased on Section 2(1) or 2(2) of the wrongful death statute, the\n\nplaintiff must prove that the defendant negligently caused the\n\ndecedent's death. GGNSC argues that because proving wrongful death\n\n\n 3 We reject Schrader's general argument that she, a non-\nsignatory to the Agreement (only having signed it using her\nmother's power of attorney), cannot be compelled to arbitrate her\nwrongful death beneficiary claims. Schrader waived this argument\nby not raising it before the district court. See Vineberg v.\nBissonnette, 548 F.3d 50, 57 (1st Cir. 2008). Even absent waiver,\nthe argument lacks merit: There are exceptions to the \"general\nproposition\" that \"a contract cannot bind a non-party.\" Grand\nWireless, Inc. v. Verizon Wireless, Inc., 748 F.3d 1, 9 (1st Cir.\n2014); see id. at 9-10.\n\n\n - 8 -\n\fis contingent on proving underlying negligence against the\n\ndecedent, the beneficiaries' right of recovery must be viewed as\n\nderived from the decedent's wrongful death claim. GGNSC highlights\n\nthat Massachusetts requires that all wrongful death actions be\n\nbrought by a personal representative of the decedent. And GGNSC\n\nadds that its view is consistent with how the SJC has treated\n\nanalogous claims, and that good policy reasons support its reading.\n\n Schrader responds that, although only a personal\n\nrepresentative may bring the suit, \"it is the [beneficiary's] cause\n\nof action.\" Gaudette v. Webb, 284 N.E.2d 222, 230 (Mass. 1972).\n\nSchrader adds that, under the Massachusetts wrongful death\n\nstatute, beneficiaries may receive different damages from those\n\nthat would have been available to a decedent or her estate.\n\n Schrader also argues that Massachusetts law is not\n\nunsettled and that it has resolved this question. She says the\n\nSJC has consistently viewed wrongful death claims as independent.\n\nGGNSC responds that, although Massachusetts may once have viewed\n\nits wrongful death action as independent, see, e.g., McCarthy v.\n\nWood Lumber Co., 107 N.E. 439, 440 (1914), later amendments to the\n\nwrongful death statute have invalidated that classification. In\n\n1958, the legislature limited recovery under the statute to \"such\n\ncircumstances that the deceased could have recovered damages for\n\npersonal injury if his death had not resulted.\" 1958 Mass. Acts\n\n122, ch. 238 § 1. And the SJC has since held that the\n\n\n - 9 -\n\fCommonwealth's \"wrongful death statutes w[ould] no longer be\n\nregarded as 'creating the right' to recovery for wrongful death\" --\n\nthe law had \"evolved to the point where it may now be held that\n\nthe right to recovery for wrongful death is of common law origin.\"\n\nGaudette, 284 N.E.2d at 229.\n\n We hold that Massachusetts law does not clearly decide\n\nthe independent/derivative or other relevant questions about the\n\nstatus of wrongful death actions in relation to the decedent. The\n\nparties have provided us with no citation to a dispositive case.\n\nOur own research reveals that the SJC has most recently reserved\n\nthe question this case presents. See Johnson v. Kindred\n\nHealthcare, Inc., 2 N.E.3d 849, 856 n.14 (Mass. 2014) (declining\n\nto address whether \"a decedent's agreement to arbitrate future\n\ndisputes\" binds \"the statutory beneficiaries of a wrongful death\n\nclaim\").\n\n Even absent controlling precedent, certification may be\n\ninappropriate when \"the course the state court would take is\n\nreasonably clear.\" Ropes & Gray LLP v. Jalbert (In re Engage,\n\nInc.), 544 F.3d 50, 53 (1st Cir. 2008) (internal quotation marks\n\nand alterations omitted). This is not such a case.\n\n It may be that the SJC will conclude that wrongful death\n\nclaims have both independent and derivative aspects. As noted, in\n\nMassachusetts, claims under the first clause of the Massachusetts\n\nwrongful death statute require a personal representative to show\n\n\n - 10 -\n\fnegligence against the decedent resulting in death. See Mass.\n\nGen. Laws ch. 229, § 2. But as the SJC has noted, \"[i]n a very\n\nreal sense,\" a wrongful death claim \"is the [beneficiary's] cause\n\nof action.\" Gaudette, 284 N.E.2d at 230.\n\n The issue here has yielded \"profound conflict\" across\n\nthe nation.4 Restatement (Second) of Judgments § 46 cmt. b. GGNSC\n\nasserts that twenty-seven states find wrongful death claims to be\n\nderivative, while fourteen states find them to be independent.\n\nGGNSC adds a wrinkle. It says that the answer to the\n\nindependent/derivative question may possibly require addressing\n\nanother state-law issue. It argues that at least one state,\n\ndespite holding that a wrongful death claim is independent, has\n\nheld that, depending on the facts, such a claim may still be\n\nsubject to the decedent's arbitration agreement. See Allen v.\n\nPacheco, 71 P.3d 375, 379 (Colo. 2003) (en banc).\n\n There are also substantial policy considerations at\n\nstake. The SJC has observed that \"[l]ike all common-law causes of\n\naction, [Massachusetts's] common law of wrongful death evolves to\n\nmeet changes in the evolving life of the Commonwealth.\" Matsuyama\n\nv. Birnbaum, 890 N.E.2d 819, 837 (Mass. 2008). The American\n\n\n 4 Decisions within the District of Massachusetts under\nMassachusetts law are also split. Compare Schrader, 2018 WL\n1582555, with Angelo v. USA Triathlon, No. CIV.A. 13-12177-LTS,\n2014 WL 4716195 (D. Mass. Sept. 19, 2014), and Chung v.\nStudentCity.com, Inc., No. CIV.A. 10-10943-RWZ, 2011 WL 4074297\n(D. Mass. Sept. 9, 2011).\n\n\n - 11 -\n\fAssociation of Retired Persons (AARP) and Massachusetts Advocates\n\nfor Nursing Home Reform, amici in favor of reversal, ably highlight\n\nnumerous issues that may or may not come under the rubric of\n\n\"changes in the evolving life of the Commonwealth.\"5\n\n Because this case presents an unresolved question of\n\nMassachusetts law whose answer is unclear, and because resolving\n\nthat issue may implicate policy judgments best left to the SJC, we\n\nexercise our discretion in favor of certification. See In re\n\nEngage, 544 F.3d at 53; see also Steinmetz v. Coyle & Caron, Inc.,\n\n862 F.3d 128, 142 (1st Cir. 2017); Showtime Entm't, LLC v. Town of\n\nMendon, 769 F.3d 61, 82 (1st Cir. 2014).\n\n We certify these questions to the Massachusetts SJC:\n\n 1. Is the wrongful death claim of Emma\n Schrader's statutory heirs derivative or\n independent of Emma Schrader's own cause\n of action?\n 2. If the answer to the first question does\n not resolve the issue presented to the\n federal court, is Jackalyn Schrader's\n wrongful death claim nonetheless subject\n to Emma Schrader's Agreement that her\n \"next of kin, guardian, executor,\n administrator, legal representative, or\n heir\" would arbitrate claims against\n GGNSC?\n\n\n 5 AARP argues that nursing facility residents suffer from\nhigh rates of abuse and neglect, that federal and state enforcement\nefforts have inadequately protected those residents, and that\narbitration fails to address that culture of abuse and neglect.\nMassachusetts Advocates for Nursing Home Reform add that the\nCommonwealth has a public policy interest in maintaining\ntransparency in nursing homes because decisions in litigation are\npublic and that is not necessarily true of arbitrations.\n\n\n - 12 -\n\fWe welcome any additional observations about Massachusetts law\n\nthat the SJC may wish to offer.\n\n III.\n\n We direct the Clerk of this court to forward to the\n\nMassachusetts SJC, under this court's official seal, a copy of the\n\ncertified questions and our decision here, and a copy of the briefs\n\nand appendix filed by the parties and amici curiae, and a copy of\n\nthe record filed in the district court, which set forth all facts\n\nrelevant to the issues certified. We retain jurisdiction pending\n\nthat court's determination.\n\n\n\n\n - 13 -\n[END_CASE]",
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4,595,186 | UNITED STATES of America, Appellant, v. David SANTIAGO-COLÓN, Defendant, Appellee. | United States v. Santiago-Colon | 2019-02-28 | 16-2509P | U.S. Court of Appeals for the First Circuit | {"judges": "Torruella, Thompson, Kayatta", "parties": "", "opinions": [{"author": "TORRUELLA, Circuit Judge", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\nNo. 16-2509\n\n UNITED STATES OF AMERICA,\n\n Appellant,\n\n v.\n\n DAVID SANTIAGO-COLÓN,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n [Hon. Gustavo A. Gelpí, U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n John P. Taddei, Attorney, Appellate Section Criminal\nDivision, U.S. Department of Justice, with whom Kenneth A. Blanco,\nActing Assistant Attorney General, Trevor N. McFadden, Acting\nPrincipal Deputy Assistant Attorney General, Rosa E. Rodríguez-\nVélez, United States Attorney, and Mariana E. Bauzá-Almonte,\nAssistant United States Attorney, Chief, Appellate Section, were\non brief, for appellant.\n Andrew S. McCutcheon, Assistant Federal Public Defender, with\nwhom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric\nAlexander Vos, Federal Public Defender, and Vivianne M. Marrero-\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\nSection, were on brief, for appellee.\n\n\n February 28, 2019\n\f TORRUELLA, Circuit Judge. The United States appeals the\n\ndistrict court's order granting David Santiago-Colón's\n\n(\"Santiago\") motion to suppress identification evidence, giving\n\npreclusive effect to a Puerto Rico Court of Appeals's order\n\nsuppressing this same evidence in a local proceeding for different\n\noffenses. According to the district court, inasmuch as Puerto\n\nRico and the United States are a single sovereign for purposes of\n\nthe Double Jeopardy Clause, Puerto Rico v. Sánchez Valle,\n\n136 S. Ct. 1863, 1869-77 (2016), it was bound by the local court's\n\nfinal judgment suppressing identification evidence, even though\n\nfederal prosecutors \"did not participate in the [Puerto Rico] court\n\ncriminal proceedings against Santiago.\" United States v.\n\nSantiago-Colón, 213 F. Supp. 3d 297, 298 (D.P.R. 2016). In so\n\nruling, the district court deviated from our on-point precedent\n\nholding that suppression of evidence by a Puerto Rico court does\n\nnot require a federal court to suppress that same evidence unless\n\nfederal prosecutors were a party, or were in privity with a party,\n\nto the suppression hearing in the Puerto Rico court, United States\n\nv. Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987), which was\n\nnot the case here. Sánchez Valle, moreover, did not change the\n\nlaw in this area. Accordingly, we reverse and vacate the district\n\ncourt's suppression order.\n\n\t\n\n\n -2-\n\f I. Background\n\nA. Factual Background\n\n On January 13, 2013, Puerto Rico Police Department Agent\n\nCarlos Sepúlveda-Rivera (\"Sepúlveda\") was off-duty at La Casita,\n\na bar in Villalba, Puerto Rico, when he got into an altercation\n\nwith two men. Sepúlveda and the two men exchanged gunfire. After\n\nthe men shot Sepúlveda four times, he was transported to the\n\nhospital for treatment of his injuries. Sergeant Pedro Quiles-\n\nTorres (\"Quiles\") interviewed Sepúlveda at the hospital later that\n\nday. During his interview, Sepúlveda provided a description of\n\nhis two assailants. 1 Based on the descriptions provided by\n\nSepúlveda and a review of the security video footage of La Casita,\n\n\n\n1 According to the government, on the same evening the shootout\noccurred, Sepúlveda provided a description of the shooters'\nphysical characteristics and attire. He described one of his\nassailants, later identified as Santiago, as slim, tall, wearing\na jacket, a black sweater, and short blue pants. Sepúlveda also\nstated that, although he could not remember their names, he knew\nboth assailants. Sepúlveda explained that he knew Santiago\nbecause he played basketball for the team of La Sierra, the\nneighborhood where Sepúlveda resides, and that he was called\n\"Cabezón\" (Spanish for \"Big Head\"). Sepúlveda also stated that\nSantiago was either the son-in-law or former son-in-law of the\nformer mayor of Villalba. Indeed, Santiago's known nickname is\n\"Cabezón,\" he played for La Sierra basketball team, and was related\nto the former mayor of Villalba. As to the second assailant,\nlater identified as Richard Cartagena-Suárez, Sepúlveda provided\na physical description, described his clothing at the time of the\nincident, and stated that he knew him because Sepúlveda had\npreviously assisted in the individual's arrest for an unrelated\noffense.\n\n\n -3-\n\flocal law enforcement agents identified Santiago and Richard\n\nCartagena-Suárez (\"Cartagena\") as the shooters. The next day,\n\nQuiles showed two photo arrays to Sepúlveda, each of them\n\ncontaining nine photos. One array included Santiago's photo, and\n\nthe other one included Cartagena's. Sepúlveda picked Santiago and\n\nCartagena from the photo arrays.\n\nB. Local Case\n\n Puerto Rico prosecutors charged Santiago with attempted\n\nfirst-degree murder, carrying and using a firearm without a\n\nlicense, and discharging or pointing a firearm, in violation of\n\nPuerto Rico law. Santiago moved to suppress Sepúlveda's\n\nidentification of him on the grounds that it was obtained in\n\ncontravention of the Puerto Rico Rules of Criminal Procedure. The\n\nlocal prosecution opposed. The local trial court held a three-\n\nday evidentiary hearing, in which four witnesses (including\n\nSepúlveda and Quiles) testified. After the local trial court\n\ndenied suppression, Santiago appealed to the Puerto Rico Court of\n\nAppeals. The Puerto Rico Court of Appeals then reversed and\n\nsuppressed the identification evidence. It noted some\n\ncontradictions in Sepúlveda's testimony, concluded that\n\nSepúlveda's identification of Santiago \"and the photographic line\n\nup led by Sergeant Quiles were not trustworthy pursuant to the\n\ncriteria established by . . . [the Puerto Rico] Supreme Court in\n\n\n -4-\n\fPueblo v. Hernández González,\" 2009 WL 197570 (2009)\n\n(untranslated), and remanded the case to the local trial court.\n\nSee App. at 65, 84, May 18, 2017, No. 16-2509 (certified\n\ntranslation of People v. Santiago-Colón, KLCE 2014-00130, 2014 WL\n\n5438091 at *13, 20 (P.R. Ct. of App. Sept. 30, 2014)). The Puerto\n\nRico Supreme Court declined to intervene, and the case was later\n\ndismissed.\n\nC. Federal Case\n\n Based on the January 13, 2013 incident, a federal grand\n\njury returned an indictment on June 4, 2015, charging Santiago\n\nwith being a felon in possession of a firearm and ammunition, in\n\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2 Santiago moved\n\nto suppress Sepúlveda's out-of-court identification and to prevent\n\nSepúlveda from identifying him in court. He argued that the\n\nidentification procedure had been unduly suggestive, that the\n\nPuerto Rico Court of Appeals had already considered and rejected\n\nthe testimony of Sepúlveda and Quiles -- \"the only witnesses who\n\n[could] provide material testimony on the issues relevant to the\n\ncase at bar\" -- and that said determination was final. Urging the\n\ncourt to apply a standard like the one used when reviewing habeas\n\n\n\n2 Santiago was indicted after the Puerto Rico Court of Appeals\nissued its opinion suppressing his identification, but before the\nlocal case was dismissed.\n\n\n -5-\n\fcorpus petitions, Santiago argued that \"disagreement alone is not\n\nenough\" for a federal court to ignore a state court's credibility\n\ndetermination. Rather, \"[t]he federal court must conclude not\n\nonly that the state court's determination was wrong, but that it\n\nwas unreasonable in light of the evidence presented.\" Because,\n\naccording to Santiago, the Puerto Rico Court of Appeals's decision\n\nwas not unreasonable, he urged the district court to \"defer\" to\n\nthe \"findings made by Puerto Rico's courts,\" suppress Sepúlveda's\n\nout-of-court identification of Santiago, and preclude Sepúlveda\n\nfrom identifying Santiago in court.\n\n The government opposed the motion, arguing that Santiago\n\nhad failed to show that \"the identification procedure was\n\nimpermissibly suggestive under federal law\" and that, in fact, the\n\nprocedure was reliable. The government also noted that the Puerto\n\nRico Court of Appeals, in reversing the trial court, failed to\n\ngive due deference to the trial judge's findings of fact and\n\ntherefore misapplied Puerto Rico law. Additionally, the\n\ngovernment pointed out that Sepúlveda knew the perpetrators before\n\nthe shootout and identified Santiago by his nickname, supporting\n\nthe reliability of the identification.\n\n On October 4, 2016, without holding a hearing, the\n\ndistrict court granted Santiago's \"request to suppress\n\nidentification.\" That order was followed by an opinion entered\n\n\n -6-\n\fthe same day. Santiago-Colón, 213 F. Supp. 3d 297. In its opinion,\n\nthe district court noted that in Sánchez Valle the U.S. Supreme\n\nCourt held that \"for purposes of the Double Jeopardy Clause, the\n\n[Puerto Rico] and United States governments constitute a single\n\nsovereign, in as much [sic] as the former's power to prosecute\n\nderives from the latter's.\" Id. at 297. The district court\n\nconcluded that it \"must give the [Puerto Rico] court suppression\n\nfindings and judgment preclusive effect\" because \"[n]ot doing so\n\nwould ignore the constitutional reality that indeed [Puerto Rico]\n\nand [the] United States are but one sovereign when it comes to\n\ncriminally prosecuting individuals.\" Id. at 298. It further\n\nnoted that, although federal prosecutors \"did not participate in\n\nthe [Puerto Rico] court criminal proceedings against [Santiago],\n\ntheir local counterparts in fact did\" and \"[t]heir authority to do\n\nso ultimately emanates from the United States.\" Id. (citing\n\nSánchez Valle, 136 S. Ct. at 1863). The district court's order\n\nset a pre-trial conference for November 9, 2016 \"to discuss if the\n\nGovernment ha[d] independent evidence to proceed with its\n\nprosecution, or if it will appeal the Court's suppression order.\"3\n\n On November 10, 2016, the district court held the pre-\n\ntrial conference. At the beginning of the conference, the\n\n\n3 That pre-trial conference was later rescheduled for November 10,\n2016.\n\n\n -7-\n\fdistrict court stated that it believed \"there[] [was] a basis\" for\n\nfiling an interlocutory appeal. The government argued that the\n\ndistrict court's suppression of Santiago's identification was\n\ncontrary to binding First Circuit precedent applying collateral\n\nestoppel principles, including Bonilla Romero, 836 F.2d 39, and\n\nUnited States v. Pérez-Pérez, 72 F.3d 224 (1st Cir. 1995), and\n\nthat Sánchez Valle did not change the law. The district court\n\nrejected the government's arguments and clarified that the court's\n\ndecision was not based on collateral estoppel, but \"on an\n\nassumption that it's the same sovereign.\" According to the\n\ndistrict court, because under Sánchez Valle Puerto Rico and the\n\nUnited States are \"a single sovereign,\" the Puerto Rico court's\n\nsuppression findings and judgment have preclusive effect on a\n\nsubsequent federal prosecution and bind the district court.4\n\n The court then inquired whether the government had\n\nindependent evidence to proceed to trial. The government\n\nresponded that even though the court had suppressed Sepúlveda's\n\nout-of-court identification of Santiago, it \"would like to proceed\n\nto trial\" with the in-court identification, because Sepúlveda knew\n\n\n\n4 In the district court's words, although the local court's\ndecision \"may be a wrong ruling . . . it's still a ruling that's\nfinal,\" it \"binds the [f]ederal [g]overnment,\" and precludes\nrelitigation of the issue in federal court even if the district\ncourt \"disagree[s] with [the ruling].\"\n\n\n -8-\n\fSantiago prior to the January 13th incident and before he saw the\n\nphoto array. The government also indicated that it could use the\n\nsecurity video footage allegedly showing Santiago at the crime\n\nscene. Santiago responded that he thought the district court had\n\nsuppressed both the out-of-court identification (product of the\n\nphoto array) as well as any in-court identification because the\n\nPuerto Rico Court of Appeals had allegedly suppressed both\n\nidentifications. After reviewing again the decision from the\n\nPuerto Rico Court of Appeals, the district court concluded that\n\nthe Puerto Rico Court of Appeals had suppressed both Sepúlveda's\n\nout-of-court and in-court identifications of Santiago, and\n\nresolved to do the same. The court further stated that it would\n\n\"supplement\" its suppression order.\n\n The district court noted that if the government had no\n\nindependent evidence to identify Santiago at trial, the \"course to\n\nproceed would be for the government to file a notice of appeal,\"\n\nbecause the issue was \"definitely capable of repetition,\" would\n\n\"continue happening,\" and was \"appealable interlocutorily.\"\n\nAdditionally, it noted that \"[t]his may be the best case to do\n\nit.\" Santiago agreed that the government \"should go up to the\n\nFirst Circuit to clarify th[e] issue.\"\n\n Consistent with its statements during the pre-trial\n\nconference, later that day the district court entered an order\n\n\n -9-\n\fsupplementing its October 4th order by clarifying that its\n\nsuppression order was \"based on the single sovereign doctrine and\n\nnot on collateral estoppel\" and \"extend[ed] to both the in-court\n\nidentification by . . . Sepúlveda . . . , as well as the photo\n\nidentification.\" On December 2, 2016, the government filed its\n\nnotice of appeal, stating that it was appealing from the order\n\nentered on November 10, 2016. On November 15, 2017, the government\n\nfiled a certification under 18 U.S.C. § 3731 with the district\n\ncourt, in which the United States Attorney certified that \"the\n\nappeal is not taken for the purpose of delay and that the evidence\n\n[suppressed] is a substantial proof of a fact material in the\n\nproceeding.\"\n\n On appeal, the government claims the district court's\n\norder suppressing any in-court identification of Santiago as the\n\nshooter should be reversed because it is contrary to First Circuit\n\nprecedent, which has held that whether suppression of evidence by\n\na local court has preclusive effect in a federal proceeding is an\n\nissue of collateral estoppel, not double jeopardy. It further\n\nclaims that, under collateral estoppel principles, the suppression\n\nof the identification evidence was improper because the two\n\nprosecuting authorities were not in privity.5\n\n\n5 The government does not appeal the suppression of Sepúlveda's\nout-of-court identification of Santiago.\n\n\n -10-\n\f II. Discussion\n\nA. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731\n Certification Requirement\n\n Santiago claims that this court lacks jurisdiction to\n\nentertain this appeal because the government filed an untimely\n\nnotice of appeal and failed to comply with the certification\n\nrequirements under 18 U.S.C. § 3731. We address each procedural\n\nchallenge in turn.\n\n i. Standard of Review and Applicable Law\n\n This court must verify that it has appellate\n\njurisdiction before addressing the merits of any appeal. Espinal-\n\nDomínguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003).\n\n\"Jurisdiction is a question of law subject to de novo review.\"\n\nUnited States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).\n\n The Criminal Appeals Act establishes in relevant part\n\nthat:\n\n An appeal by the United States shall lie to a court of\n appeals from a decision or order of a district court\n suppressing or excluding evidence . . ., not made after\n the defendant has been put in jeopardy and before the\n verdict or finding on an indictment or information, if\n the United States attorney certifies to the district\n court that the appeal is not taken for purpose of delay\n and that the evidence is a substantial proof of a fact\n material in the proceeding.\n\n . . .\n\n The appeal in all such cases shall be taken within thirty\n days after the decision, judgment or order has been\n rendered and shall be diligently prosecuted.\n\n -11-\n\f The provisions of this section shall be liberally\n construed to effectuate its purposes.\n\n18 U.S.C. § 3731.\n\n The government is allowed to take an interlocutory\n\nappeal from suppression and exclusion orders in certain\n\ncircumstances to remedy the \"imbalance created by the\n\npeculiarities of criminal procedure.\" United States v. Watson,\n\n386 F.3d 304, 308 (1st Cir. 2004). While a criminal defendant who\n\nhad unsuccessfully sought suppression of evidence before trial\n\ncould appeal the denial of the suppression if he was convicted,\n\ndouble jeopardy principles preclude the government from appealing\n\na pre-trial order suppressing evidence in the event of an\n\nunfavorable verdict at trial. Id. Because \"Congress became\n\nconcerned about both this disparity and the lack of uniform\n\nstandards of admissibility that resulted from it,\" id., it amended\n\nthe Criminal Appeals Act in 1968 to allow the government to appeal\n\na pre-trial suppression or exclusion order, id. at 308-09. In\n\n1970, Congress further amended the Criminal Appeals Act to remedy\n\nthe courts' then-narrow interpretation of § 3731 and to include an\n\nexplicit \"command to construe the statute liberally,\" id. at 309,\n\nwhich this court has construed \"as a cue to put substance ahead of\n\nform\" in deciding whether it has jurisdiction to entertain an\n\nappeal, id. at 310; United States v. Kane, 646 F.2d 4, 7 (1st\n\n\n -12-\n\fCir. 1981) (noting that \"the liberal construction provision\"\n\ndictates \"a practical, rather than formalistic, application\").\n\n ii. Timeliness Issue\n\n Santiago argues that the government's notice of appeal\n\nwas untimely because it was filed more than thirty days after the\n\ndistrict court entered its October 4th order. According to\n\nSantiago, on October 4, 2016, the district court granted his motion\n\nto suppress, which sought to suppress not only Sepúlveda's out-\n\nof-court identification of him (the photo array), but also sought\n\nto prevent Sepúlveda from identifying him in court. Santiago\n\nargues that the government, however, failed to file a notice of\n\nappeal, or request clarification or reconsideration of the order,\n\nuntil after the thirty-day window provided in 18 U.S.C. § 3731 had\n\nexpired.\n\n Santiago acknowledges that \"when the lower court changes\n\nmatters of substance, or resolves a genuine ambiguity\" in an\n\notherwise appealable order, \"the period within which an appeal\n\nmust be taken . . . begin[s] to run anew,\" see Fed. Trade Comm'n\n\nv. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12\n\n(1952), but argues that such is not the case here. He contends\n\nthat while the government attempts to draw a distinction between\n\nthe October 4th and November 10th orders -- characterizing the\n\nformer as suppressing only the out-of-court identification and the\n\n\n -13-\n\flatter as further suppressing any in-court identification by\n\nSepúlveda -- such distinction is inappropriate because the order\n\non November 10th did not materially change the October 4th order.\n\nThe November 10th order, Santiago insists, merely reiterated that\n\nthe prior suppression ruling included both the out-of-court and\n\nthe in-court identifications, which does not serve to start the\n\nclock anew for appellate purposes.\n\n In response, the government argues that the notice of\n\nappeal was timely because it was filed within thirty days of the\n\nNovember 10th order, which it characterizes as a \"'supplement[al]'\n\nsuppression order\" that \"materially amended the original October 4\n\norders by suppressing evidence that was not covered by the original\n\norders.\"\n\n The government states that neither the Puerto Rico Court\n\nof Appeals's opinion nor the district court's October 4th order\n\n\"specifically addressed whether Agent Sepúlveda would be\n\nprohibited from identifying Santiago\" at trial. According to the\n\ngovernment, the \"ambiguous\" language of the Puerto Rico Court of\n\nAppeals's opinion and the district court's October 4th order, in\n\nconjunction with the district court's simultaneous scheduling of\n\na pre-trial conference to discuss whether the government had\n\nindependent evidence to proceed with its prosecution, as well as\n\nfederal case law suggesting that suppression of an out-of-court\n\n\n -14-\n\fidentification by a witness does not necessarily preclude an in-\n\ncourt identification by the same witness, led it to believe that\n\nonly the photo array evidence had been suppressed. The government\n\nsubmits that the October 4th order was so ambiguous that the\n\ndistrict court had to re-read the Puerto Rico Court of Appeals's\n\nopinion in order to determine whether its October 4th order also\n\nencompassed the in-court identification. The government further\n\nargues that if the October 4th order had been clear, as Santiago\n\nclaims, \"it would have been unnecessary for the district court to\n\n'issue a supplement[al] order clarifying' its original ruling\" and\n\nthat the order itself stated that it was a \"supplement\" to the\n\nOctober 4th order, which \"extend[ed]\" suppression to in-court\n\nidentification.\n\n We are persuaded by the government's arguments. The\n\nOctober 4th order did not specify the scope of the suppression,\n\nand the Puerto Rico Court of Appeals's opinion, on which the\n\ndistrict court relied, was ambiguous as to whether it also\n\nprecluded Sepúlveda from identifying Santiago in court. In fact,\n\nthe opinion of the Puerto Rico Court of Appeals gave the impression\n\nthat only the photographic lineup identification had been\n\nsuppressed.6\n\n\n6 The Puerto Rico Court of Appeals's opinion stated as follows:\n\n [P]etitioners filed a Motion to Suppress Identification\n\n -15-\n\f In addition, as the government contends, suppression of\n\na photographic lineup identification does not necessarily require\n\nexclusion of an in-court identification provided that the\n\nprosecution can \"establish by clear and convincing evidence that\n\nthe in-court identification[] w[as] based upon observations of the\n\nsuspect other than the lineup identification.\" Moore v. Illinois,\n\n434 U.S. 220, 225-26 (1977) (quoting United States v. Wade,\n\n388 U.S. 218, 240 (1967)). Hence, this supports the government's\n\nunderstanding that only the out-of-court identification had been\n\nsuppressed, and Sepúlveda could identify Santiago in court based\n\non his knowledge of Santiago prior to the photo array.\n\n Furthermore, as the government argues, the district\n\ncourt's scheduling of a pre-trial conference to discuss whether\n\nthe government had additional evidence to proceed to trial, as\n\nwell as the events that transpired during that pre-trial\n\n\n . . . alleg[ing] that . . . they were identified through\n photographs the day after the facts . . . [and] . . .\n that the process was 'severely vitiated' [in] that it\n did not comply with the provisions of Rule 252.2 of\n [Puerto Rico] Criminal Procedure Rules. . . . [W]e\n conclude that the identification that Agent Sepúlveda\n Rivera made of . . . Santiago . . . and the photographic\n line up [sic] led by Sergeant Quiles were not trustworthy\n pursuant to the criteria established by our Supreme\n Court in Pueblo v. Hernández González. . . . [Thus, the\n trial court's] resolution is vacated and set aside and\n in its consequence, the suppression of the\n identification of petitioners is ordered.\n\nApp. at 41, 84, May 18, 2017, No. 16-2509.\n\n -16-\n\fconference, also support the government's interpretation that the\n\nOctober 4th order had not suppressed all of the identification\n\nevidence. At the November 10th conference, the parties disputed\n\nthe scope of the October 4th suppression order. When the\n\ngovernment stated that it believed the order had suppressed the\n\nout-of-court identification only, the district court did not\n\nclarify that it had also suppressed the in-court identification.\n\nInstead, the court decided to hear from defense counsel. In fact,\n\neven after defense counsel argued that the October 4th order\n\n\"clear[ly]\" suppressed both identifications, the court stated as\n\nfollows:\n\n [I]f the government wants to proceed to trial, what I\n need then is for the government to file a motion and\n inform what witnesses are going to testify and if they're\n going to identify him in court or not so the defense can\n adequately respond. And then I can either -- either\n I'll grant it or deny it. And if I deny it and basically\n I'm suppressing everything, then the government can\n still appeal.\n\n The district court then took a brief recess to review\n\nthe opinion from the Puerto Rico Court of Appeals in order to\n\nascertain the scope of its own suppression order. It was after\n\nreviewing again the opinion from the Puerto Rico Court of Appeals\n\nthat the district court stated that it would suppress both\n\nidentifications. It found that a \"supplement[al] order\n\nclarifying\" its original order was warranted. The court deemed\n\nit appropriate to clarify that its ruling was based \"on the single\n\n -17-\n\fsovereign doctrine, not on collateral estoppel,\" and that its\n\n\"suppression ruling would include the identification of Agent\n\nSepúlveda of the defendant, as well as his . . . photo . . .\n\nidentification.\" It is worth noting that the court stated its\n\nsuppression ruling \"would include,\" and not that it \"included\" or\n\n\"had included,\" the in-court identification. Therefore, the\n\ncourt's chosen language supports the government's contention that\n\nthe original order did not include the in-court identification.\n\nThe court then proceeded to issue a supplemental order clarifying\n\nits October 4th order to these effects. See Dkt. No. 70,\n\nUnited States v. Santiago-Colón, 15-cv-00396 (\"supplement[ing] its\n\nruling [of October 4th] . . . to the effect that that the same\n\n[was] based on the single sovereign doctrine and not on collateral\n\nestoppel\" and \"hold[ing] that its suppression extends to both the\n\nin-court identification by Agent Sepúlveda Rivera, as well as the\n\nphoto identification\").7\n\n Considering the record as a whole, we hold that the\n\nNovember 10th order amended or materially changed the October 4th\n\norder, which had the effect of restarting the thirty-day clock.\n\n\n\n7 The court used the language \"the Court holds\" as if it was\ndetermining the scope of the suppression for the first time,\ninstead of using language such as \"clarifies,\" which would suggest\nthat the decision had been previously taken. Dkt. No. 70,\nUnited States v. Santiago-Colón, 15-cv-00396 (emphasis added).\n\n\n -18-\n\fThis makes timely the government's notice of appeal of the\n\nNovember 10th order. See United States v. Cheal, 389 F.3d 35, 53\n\n(1st Cir. 2004) (noting that courts are encouraged \"to construe\n\nnotices of appeal liberally and examine them in the context of the\n\nrecord as a whole\" (quoting Chamorro v. Puerto Rican Cars, Inc.,\n\n304 F.3d 1, 3 (1st Cir. 2002))).\n\n iii. 18 U.S.C. § 3731 Certification Issue\n\n Santiago also argues that this court lacks jurisdiction\n\nto entertain the interlocutory appeal because the United States\n\nAttorney did not timely file a § 3731 certification with the\n\ndistrict court certifying that the appeal was not taken to delay\n\nthe proceedings and that the evidence suppressed is substantial\n\nproof of a material fact. Santiago acknowledges that this court\n\nhas not addressed whether certification is a pre-condition to\n\nappellate jurisdiction but argues that we should treat it as such.\n\nHe further argues that even if we were to treat non-compliance\n\nwith the certification requirement as a \"filing irregularity\"\n\ngoverned by Federal Rule of Appellate Procedure 3(a) -- which would\n\nleave any appropriate action, including dismissal of the appeal,\n\nto the court's sound discretion -- we should not condone the\n\ngovernment's \"disregard for diligence.\"\n\n In response, the government acknowledges that it filed\n\nthe § 3731 certification belatedly, after Santiago pointed out the\n\n\n -19-\n\fgovernment's non-compliance with the certification requirement in\n\nhis response brief, and apologizes for the late filing.8 But, the\n\ngovernment claims that such late filing does not require dismissal\n\nof the appeal.\n\n The government notes that \"[t]he purpose of the\n\ncertification requirement is to ensure that the prosecutor\n\ncarefully analyzed the case before deciding to appeal\" and that,\n\ndespite its belated filing of the § 3731 certification, the\n\ngovernment did comply with the substance of § 3731 before it filed\n\nits notice of appeal. It points out that the Solicitor General,\n\nwho decides whether the government will seek appellate review in\n\na given case, \"considers a variety of factors, such as the limited\n\nresources of the government and the crowded dockets of the courts,\n\nbefore authorizing an appeal,\" and that this deliberative process\n\nwas followed here, when the Acting Solicitor General approved\n\nfiling an appeal on April 19, 2017. It further points out that\n\nthe Criminal Division of the United States Attorney's Office also\n\n\"thorough[ly] review[ed]\" this case before the government decided\n\nto file its notice of appeal.\n\n\n8 The government explains that at the time it filed its notice of\nappeal, counsel of record was a Special Assistant United States\nAttorney (\"SAUSA\") on detail from the Puerto Rico Department of\nJustice who was inexperienced in federal appellate procedures, and\nthe government first became aware of the missing certification\nwhen Santiago raised the issue in his response brief.\n\n\n -20-\n\f The government contends that most appellate courts that\n\nhave addressed the issue have not treated the certification as a\n\njurisdictional requirement. Rather, \"[t]hey have held that\n\nwhether dismissal is an appropriate remedy is a matter that falls\n\nwithin the court's discretion.\"\n\n Furthermore, the government points us to United States\n\nv. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), in which this court\n\nrejected the argument that dismissal was warranted because the\n\nUnited States Attorney had not personally signed the § 3731\n\ncertification filed with the district court. It notes that in\n\nCrespo-Ríos the court gave weight to the deliberative process the\n\ngovernment underwent before filing its appeal (including review by\n\nthe United States Attorney and the Solicitor General), as well as\n\nto Congress's mandate that § 3731 be construed liberally. The\n\ngovernment argues that both considerations are present in this\n\ncase and thus urges us to consider the appeal on its merits.\n\n It is uncontested that the government filed its § 3731\n\ncertification belatedly. However, in light of Congress's mandate\n\nthat 18 U.S.C. § 3731 be \"liberally construed to effectuate its\n\npurposes,\" we decline Santiago's invitation to treat the\n\ncertification as a jurisdictional requirement. Instead, we join\n\nmost of the circuits that have addressed the issue and leave it to\n\nthe court's sound discretion to determine whether dismissal of an\n\n\n -21-\n\fappeal for failure to comply with the § 3731 certification\n\nrequirement is appropriate in a particular case. See, e.g.,\n\nUnited States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per\n\ncuriam) (refusing to treat § 3731's certification requirement as\n\njurisdictional and exercising appellate jurisdiction even though\n\nthe United States Attorney's certification was filed after the\n\ndefendant-appellee had already filed his brief, because the\n\nSolicitor General had authorized the appeal and there seemed to be\n\nno prejudice resulting from the belated filing); see also\n\nUnited States v. McNeill, 484 F.3d 301, 309 (4th Cir. 2007) (noting\n\nthat failure to file a timely § 3731 certification does not deprive\n\nthe court of jurisdiction over the appeal, but \"is a ground for\n\nthe court of appeals to act as it considers appropriate\") (internal\n\nquotation marks and citation omitted); United States v. Smith,\n\n263 F.3d 571, 578 (6th Cir. 2001) (treating a failure to timely\n\nfile a § 3731 as \"an irregularity in perfecting [an] appeal\" and\n\nnoting that its \"sister circuits have consistently held that the\n\ndelayed filing of a section 3731 certificate, although disfavored,\n\ndoes not divest appellate courts of their jurisdiction\")\n\n(collecting cases).\n\n Here, we find that dismissal of the appeal is\n\nunwarranted. This case presents an important issue that, as the\n\ndistrict court acknowledged, is \"definitely capable of repetition\"\n\n\n -22-\n\fand would \"continue happening.\" In fact, the United States\n\nDistrict Court for the District of Puerto Rico is already split as\n\nto how to resolve this issue of law.9 Moreover, this case presents\n\na question of law and, as the district court stated, \"[t]his may\n\nbe the best case to [decide the issue],\" which has been fully\n\nbriefed. We note that although the government failed to file the\n\nrequired certification at the time it filed its notice of appeal,\n\nit complied with the substance and purpose of the certification\n\nrequirement. As the government explained, before it filed its\n\nbrief, the government engaged in the deliberative process to\n\ndetermine whether the issue should be taken on appeal. Compliance\n\nwith the essence of this deliberative process, as well as the\n\nmandate to construe the statute liberally, were determinative\n\nfactors in Crespo-Ríos. 645 F.3d at 44 n.6. Furthermore, the\n\ngovernment's failure to timely file the § 3731 certification has\n\nin no way prejudiced Santiago.10 See Smith, 263 F.3d at 578 (noting\n\n\n9 In United States v. Rosado-Cancel, the district court rejected\nthe defendant's argument that federal firearms charges should be\ndismissed under Sánchez-Valle because a Puerto Rico court had\nalready dismissed parallel Puerto Rico firearms charges for lack\nof probable cause. No. 13-731, 2017 WL 543199, at *7 (D.P.R.\nFeb. 10, 2017) (Domínguez, J.). Relying on our holding in Bonilla\nRomero, the district court held that \"any issue preclusion argument\n. . . would . . . fail on lack-of-privity grounds.\" Id.\n10 Santiago claims to have been prejudiced by the government's\nbelated filing of its § 3731 certification because he has remained\nimprisoned during the pendency of the government's appeal. He has\nfailed, however, to explain how his situation would have been\n\n -23-\n\fthat \"[i]n exercising their discretion, courts typically consider\n\na variety of factors, including: when the certificate was filed;\n\nthe reason for the failure to timely file it; whether the\n\ngovernment did in fact engage in a conscientious pre-appeal\n\nanalysis; whether the government acknowledges that the\n\ncertification requirement should be taken seriously; any delay or\n\nprejudice to the defendant; whether the appeal raises important\n\nlegal issues needing appellate clarification; and whether the\n\nappeal should be heard in the interest of justice, or for any other\n\nsignificant reason\") (internal quotation marks omitted).\n\n Finding no procedural issue that divests us of\n\njurisdiction, we now turn to the merits of this appeal.\n\nB. Suppression Issue\n\n The government argues that the district court's\n\nconclusion -- that because Puerto Rico and the United States are\n\na single sovereign for purposes of the Double Jeopardy Clause,\n\nsuppression rulings by Puerto Rico courts are binding in federal\n\nprosecutions -- is unsupported by Sánchez Valle and contrary to\n\nlongstanding First Circuit precedent.\n\n\n\n\ndifferent had the government timely complied with the\ncertification requirement. Thus, Santiago has not shown any\nprejudice stemming from the belated filing.\n\n\n -24-\n\f According to the government, Sánchez Valle does not hold\n\nthat Puerto Rico and the United States are the same for purposes\n\nof all criminal law enforcement and procedure. Instead, it\n\nnarrowly held that they are a single sovereign for double jeopardy\n\npurposes, which the government posits has no bearing in this case.\n\nThe government argues that the doctrine of collateral estoppel is\n\ncontrolling, as held in \"two precedential decisions\" which it\n\nclaims are still binding: Bonilla Romero, 836 F.2d at 42-43, and\n\nPérez-Pérez, 72 F.3d at 226. Under a collateral estoppel\n\nanalysis, the government urges us to find that the district court\n\nwas not collaterally estopped by the local court's suppression\n\ndecision because the United States was neither a party, nor in\n\nprivity with a party, at the local suppression proceedings.\n\n Santiago agrees with the government that \"the doctrine\n\nof collateral estoppel controls this case rather than double\n\njeopardy.\" He notes that the district court \"conflate[d] the\n\ntwo,\" but argues that its ruling is nevertheless \"clear.\"\n\nSantiago further argues that Sánchez Valle confirmed that Puerto\n\nRico \"has what amounts to an agency relationship with the federal\n\ngovernment.\" Yet, because Bonilla Romero predates Sánchez Valle,\n\nthe former \"did not fully confront Puerto Rico's agency\n\nrelationship with the United States\" and thus should not be\n\ncontrolling. Santiago submits that, in any event, even if Bonilla\n\n\n -25-\n\fRomero is still good law, it is \"factually and legally\n\ndistinguishable\" from his case.\n\n In Bonilla Romero, this court rejected Santiago's\n\ncontention that suppression of evidence by a Puerto Rico court in\n\na local prosecution necessarily requires suppression of the same\n\nevidence in a subsequent federal prosecution. 836 F.2d at 41-45.\n\nThere, Puerto Rico officers had seized two firearms and drugs from\n\nthe car and house of the defendant, who was charged with weapons\n\nand drug offenses under Puerto Rico law. Id. at 41. Months\n\nlater, based on that same evidence, a grand jury returned an\n\nindictment charging the defendant with federal crimes. Id. After\n\nholding a hearing, the Puerto Rico trial court granted the\n\ndefendant's motion to suppress because the local judge \"seriously\n\ndoubted the veracity\" of the officers' testimony. Id. The local\n\nprosecution was subsequently dismissed. Id. The defendant then\n\nsought suppression of the same evidence in the district court.\n\nId. The district court \"held that the federal court was not bound\n\nby the decision of the local court to suppress the evidence\" and\n\nultimately denied the defendant's motion to suppress. Id. After\n\nthe defendant was convicted on all federal counts, he appealed the\n\ndenial of his motion to suppress, arguing, inter alia, that\n\nallowing the government to relitigate the suppression issue\n\n\n\n\n -26-\n\fviolated the Double Jeopardy Clause as well as collateral estoppel\n\nprinciples. Id.\n\n We rejected both challenges. First, regarding the\n\ndouble jeopardy challenge, we noted that \"jeopardy 'attaches' when\n\na trial commences; that is, when a jury is sworn or empanelled or,\n\nin a bench trial, when the judge begins to hear evidence.\" Id.\n\nat 42 (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26\n\n(1980)). Because \"jeopardy did not attach as a result of the\n\nsuppression of evidence ordered . . . by the Puerto Rico . . .\n\n[c]ourt[,] and the subsequent dismissal of charges under Puerto\n\nRico law,\" the litigation of the suppression of evidence issue in\n\nfederal court did not violate the defendant's rights under the\n\nDouble Jeopardy Clause. Id.\n\n Second, assuming without deciding that the doctrine of\n\ncollateral estoppel applied even when jeopardy had not attached,11\n\nwe rejected the defendant's contention that \"relitigation of the\n\n\n11 As in Bonilla Romero, this appeal does not require us to decide\nwhether collateral estoppel is applicable in criminal proceedings\nregardless of whether jeopardy has attached. See Bonilla Romero,\n836 F.2d at 43. Because both parties urge us to apply the doctrine\nof collateral estoppel, and because we would reach the same result\nirrespective of whether the doctrine applies, we assume that the\ncollateral estoppel doctrine is applicable regardless of whether\njeopardy has attached. We further note that, although the\ngovernment stated at oral argument that the Supreme Court seems to\nbe moving away from applying collateral estoppel in criminal cases,\nthe parties did not brief the issue and, instead, both assumed\nthat the collateral estoppel doctrine remains applicable.\n\n\n -27-\n\fsuppression was barred by the principle of collateral estoppel\" in\n\nthat case. Id. at 42-44. We noted that the doctrine of collateral\n\nestoppel requires, inter alia, \"that the party to be precluded\n\nfrom relitigating an issue decided in a previous litigation . . .\n\neither [had been] a party or [had been] in privity with a party to\n\nthat prior litigation,\" and concluded that said requirement was\n\nnot satisfied in that case because \"the federal prosecutors were\n\nneither a party, nor in privity with a party, to the suppression\n\nhearing in the Puerto Rico Superior Court.\"12 Id. at 43. We\n\nclarified that \"the source of authority of two government entities\n\nis not dispositive of whether they are in privity.\" Id. at 43.\n\nThus, \"Puerto Rico's sovereignty status as a United States\n\nterritory\" has no bearing on the determination of whether federal\n\nprosecutors would be bound by a prior suppression of the same\n\nevidence by a Puerto Rico court.13 Id. at 44. Instead, \"we must\n\n\n12 We found that there was no evidence that federal prosecutors\nwere involved in the local prosecution or that they provided\nassistance or advice to local authorities. Id. at 44. We further\nnoted that \"[t]he initial suppression hearing concerned purely\nlocal charges over which the federal enforcement officials had no\nauthority and thus no interest,\" and, accordingly, \"[f]ederal\nprosecutors had no reason to believe that a Puerto Rico Superior\nCourt judge would be deciding any matters affecting a federal\nprosecution.\" Id.\n13 Prior to Bonilla Romero, this court had addressed Puerto Rico's\nsovereignty status as a United States territory in United States\nv. López Andino, where we held that Puerto Rico was a \"separate\nsovereign for the limited purpose of the double jeopardy clause.\"\n831 F.2d 1164, 1168 (1st Cir. 1987), overruled by Sánchez Valle,\n\n -28-\n\fdetermine whether there was a close or significant relationship\n\nbetween the federal and Puerto Rico prosecutors during the local\n\nsuppression hearing or whether the federal authorities controlled\n\nor actively participated in that hearing such that their interests\n\nin enforcing federal law were sufficiently represented.\" Id.\n\n In Pérez-Pérez, we reiterated Bonilla Romero's holding\n\nthat application of the doctrine of collateral estoppel in criminal\n\ncases requires that \"the party to be precluded . . . have been the\n\nsame as, or in privity with, the party who lost on that issue in\n\nthe prior litigation.\" 72 F.3d at 226 (citing Bonilla Romero, 836\n\nF.2d at 42-44). We noted that Bonilla Romero had already rejected\n\nthe defendant's argument that if the United States and Puerto Rico\n\nwere considered a \"single sovereign\" for double jeopardy purposes,\n\nthen they were also in privity under collateral estoppel\n\nprinciples. Id.\n\n Bonilla Romero directly addresses the issue presently\n\nbefore us. The district court, however, found that it is no longer\n\ngood law in light of Sánchez Valle. It held that because under\n\nSánchez Valle Puerto Rico and the United States are considered\n\n\"one sovereign when it comes to criminally prosecuting\n\n\n136 S. Ct. at 1868. In Bonilla Romero, we noted that there was\n\"extensive argument[]\" over that conclusion, including\ndisagreement among members of this court. 836 F.2d at 42 n.2, 44\nn.4.\n\n\n -29-\n\findividuals,\" it \"must give the [Puerto Rico] court suppression\n\nfindings and judgment preclusive effect\" even when federal\n\nprosecutors \"did not participate in the [Puerto Rico] court\n\ncriminal proceedings against Santiago.\" We disagree.\n\n Sánchez Valle is a double jeopardy case. The Double\n\nJeopardy Clause of the Fifth Amendment protects an individual from\n\nbeing \"twice put in jeopardy of life or limb\" for the same offense,\n\nU.S. Const. amend. V., if the prosecutions are brought by the same\n\nsovereign, Sánchez Valle, 136 S. Ct. at 1870. In Sánchez Valle,\n\nthe Supreme Court faced the issue of whether Puerto Rico and the\n\nUnited States were the same sovereign for purposes of the Double\n\nJeopardy Clause, which would in turn determine whether the federal\n\ngovernment and Puerto Rico were barred \"from successively\n\nprosecuting a defendant on like charges for the same conduct.\"\n\nId. To determine whether Puerto Rico and the United States were\n\nthe same or different sovereigns for double jeopardy purposes, the\n\ncourt performed a \"historical, not functional,\" inquiry, id. at\n\n1871, looking only to \"whether the prosecutorial powers of the two\n\njurisdictions ha[d] independent origins,\" id. (citing United\n\nStates v. Wheeler, 435 U.S. 313, 320 (1978)).14 It held that they\n\n\n14 The Court specifically stated that \"the 'extent of control'\nthat 'one prosecuting authority [wields] over the other'\" is\nirrelevant. Sánchez Valle, 136 S. Ct. at 1870 (alteration in\noriginal).\n\n\n -30-\n\fdid not, because \"the oldest roots of Puerto Rico's power to\n\nprosecute lie in federal soil,\" id. at 1868, inasmuch as \"Congress\n\nconferred the authority to create the Puerto Rico Constitution,\n\nwhich in turn confers the authority to bring criminal charges,\"\n\nid. at 1876. Because the prosecutorial authority of both the\n\nfederal government and Puerto Rico emanates from a single source\n\n-- Congress -- the two are considered a single sovereign for double\n\njeopardy purposes and \"the two governments cannot 'twice put' [an\n\nindividual] 'in jeopardy' for the 'same offence.'\" Id. at 1875-77.\n\n There is no doubt that double jeopardy concerns are not\n\nimplicated in this case. Santiago's local charges were dismissed\n\nbefore trial, and thus jeopardy never attached in the local\n\ncourts.15 Santiago concedes as much. The district court itself\n\nacknowledged that Sánchez Valle is a case about double jeopardy,\n\nbut stated that it would \"extend Sánchez Valle to the suppression\n\ncontext . . . based on the fact that [Puerto Rico and the United\n\nStates are] a single sovereign.\" According to the district court,\n\nalthough there is no indication in Sánchez Valle that the Supreme\n\n\n\n15 Furthermore, the local and federal charges were not for the\nsame offenses. See Brown v. Ohio, 432 U.S. 161, 165 (1977) (\"The\nDouble Jeopardy Clause 'protects against a second prosecution for\nthe same offense after acquittal. It protects against a second\nprosecution for the same offense after conviction. And it\nprotects against multiple punishments for the same offense.'\"\n(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))).\n\n\n -31-\n\fCourt intended to extend its analysis of the \"notion to\n\nsovereignty\" outside of the double jeopardy context, it did not\n\npreclude it either. The district court's holding, however, runs\n\nhead-on into the law of the circuit rule.\n\n \"The law of the circuit rule (a branch of the stare\n\ndecisis doctrine) holds that 'newly constituted panels in a multi-\n\npanel circuit court are bound by prior panel decisions that are\n\nclosely on point.'\" United States v. Wurie, 867 F.3d 28, 34 (1st\n\nCir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co.,\n\n612 F.3d 25, 33 (1st Cir. 2010)). Exceptions to this rule are\n\n\"extremely narrow and their incidence is hen's-teeth-rare.\"\n\nSan Juan Cable LLC, 612 F.3d at 33. \"Such exceptions come into\n\nplay only when the holding of the prior panel is 'contradicted by\n\ncontrolling authority, subsequently announced (say, a decision of\n\nthe authoring court en banc, a Supreme Court opinion directly on\n\npoint, or a legislative overruling).'\" Id. (quoting United States\n\nv. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)). \"An even less\n\ncommon exception has been recognized in those 'rare instances in\n\nwhich authority that postdates the original decision, although not\n\ndirectly controlling, nevertheless offers a sound reason for\n\nbelieving that the former panel, in light of fresh developments,\n\nwould change its collective mind.'\" Wurie, 867 F.3d at 34 (quoting\n\nRodríguez, 527 F.3d at 225).\n\n\n -32-\n\f Here, there has been no en banc decision from this court\n\ncontradicting our holding in Bonilla Romero. There has also been\n\nno statutory overruling. Nor is there a Supreme Court opinion\n\ndirectly on point contradicting our precedent. We are thus left\n\nto consider the only remaining exception to the law of the circuit\n\nrule -- whether Sánchez Valle, although not directly controlling,\n\noffers a sound reason for believing that the Bonilla Romero panel\n\nwould change its collective mind. We find that it does not.\n\n Sánchez Valle, which had nothing to do with collateral\n\nestoppel, and where the Supreme Court emphasized the narrowness of\n\nits holding, held that Puerto Rico and the United States are a\n\nsingle sovereign for purposes of the Double Jeopardy Clause because\n\nthe source of authority of both prosecutorial powers derive from\n\nthe same source. Although Puerto Rico and the United States had\n\nnot been considered a single sovereign in the context of a criminal\n\nproceeding at the time that Bonilla Romero and Pérez-Pérez were\n\ndecided, this court nevertheless considered in Bonilla Romero the\n\npossible effect of deeming Puerto Rico and the United States a\n\nsingle sovereign and rejected that the \"source of authority of\n\n[the] two governmental entities\" could be \"dispositive of whether\n\nthey are in privity.\" Bonilla Romero, 836 F.2d at 43.\n\n We held, both in Bonilla Romero and in Pérez-Pérez, that\n\nPuerto Rico's sovereign status as a United States territory \"does\n\n\n -33-\n\fnot determine whether the federal prosecutors are bound by a\n\npretrial suppression order issued by a Puerto Rico court.\"\n\nBonilla Romero, 836 F.2d at 44; see also Pérez-Pérez, 72 F.3d at\n\n226 (noting that Bonilla Romero rejected that finding that Puerto\n\nRico and the United States are a \"single sovereign\" \"establishes\n\nan identity between the two governments\"). Instead, what\n\ndetermines whether collateral estoppel is applicable is whether\n\n\"the party to be precluded from relitigating an issue decided in\n\na previous litigation was either a party or in privity with a party\n\nto that prior litigation.\" Bonilla Romero, 836 F.2d at 43.\n\nBecause at the time of Bonilla Romero and Pérez-Pérez we considered\n\nthe possibility that Puerto Rico and the United States could be\n\ndeemed a single sovereign, and nonetheless rejected that a finding\n\nof single sovereignty would affect our analysis of the issue, we\n\nfind no sound reason to believe that the Bonilla Romero panel would\n\nchange its collective mind in light of Sánchez Valle.\n\nAccordingly, we conclude that Bonilla Romero is still good law.\n\n Santiago, however, urges us to find his case\n\ndistinguishable from Bonilla Romero, arguing that: (1) unlike in\n\nhis case, the local decision suppressing the evidence in\n\nBonilla Romero was not \"a final decision from the highest court in\n\nPuerto Rico\"; (2) the district court in Bonilla Romero had held a\n\nsuppression hearing before the local court entered its order\n\n\n -34-\n\fsuppressing the evidence in the local proceedings; (3) it is\n\n\"unclear from the record in Bonilla Romero whether the [local]\n\ncourt applied relevant federal law in its order granting the motion\n\nto suppress\"; and, (4) because Bonilla Romero was decided shortly\n\nafter López Andino, 831 F.2d at 1164, we can presume that\n\nLópez Andino's holding \"permeated\" Bonilla Romero's rationale; yet\n\nthat rationale no longer stands on firm ground after Sánchez Valle.\n\nWe find these arguments unpersuasive. Nothing in Bonilla Romero\n\nsuggests that the first three factors played any role in this\n\ncourt's analysis.16 Santiago's last alleged distinction fares no\n\nbetter in light of Bonilla Romero's explicit statement that \"the\n\nsource of authority of the two government entities\" was also\n\nirrelevant to the analysis. Bonilla Romero, 836 F.2d at 43-44.\n\nAccordingly, we do not find Santiago's case distinguishable from\n\nBonilla Romero.\n\n Applying our on-point precedent, we conclude that the\n\ndistrict court erred when it deemed itself bound by the Puerto\n\n\n16 Furthermore, Santiago's argument that his case is\ndistinguishable from Bonilla Romero because that case did not\ninvolve \"a final decision from the highest court in Puerto Rico\"\nis misleading. The local decision suppressing the identification\nevidence in Santiago's local case, although final, was not a\ndecision from the highest court in Puerto Rico. In fact, the\nPuerto Rico Supreme Court declined to intervene in the case. Thus,\nit was a final decision from the local intermediate court. In any\nevent, how high the case went in the local courts is not relevant\nto whether there was privity between the prosecuting authorities.\n\n\n -35-\n\fRico Court of Appeals's decision to suppress the identification\n\nevidence without analyzing whether the requirements of collateral\n\nestoppel were satisfied. See id.; see also Pérez-Pérez, 75 F.3d\n\nat 226. We note that the district court went to great lengths to\n\nclarify that it was not ruling on collateral estoppel grounds, but\n\nthat was precisely the analysis that it should have applied. The\n\ndistrict court should have analyzed whether the federal prosecutor\n\nwas in privity with the local prosecutors that participated in the\n\nlocal suppression proceedings. It erred in failing to do so.\n\n As his final plea, Santiago urges us to find that the\n\ngovernment is collaterally estopped from litigating the\n\nsuppression issue in the district court. He argues that, although\n\nthe federal prosecution was not a party, it was in privity with\n\nthe local prosecution when the latter litigated the suppression\n\nissue in Puerto Rico courts. Because the parties do not dispute\n\nthe facts on which the privity analysis hinges, we proceed to\n\nanalyze the issue. See Bonilla Romero, 836 F.2d at 43-44 (analyzing\n\nthe privity issue in the first instance).\n\n Santiago posits that the federal prosecution was in\n\nprivity with the local prosecution due to the relationship between\n\nlocal and federal prosecutors. He claims that the federal\n\nprosecution was involved in his local proceedings because the\n\nevents of January 13 constituted a violation of his federal\n\n\n -36-\n\fprobation. In support of this assertion, he cites to a filing by\n\nthe SAUSA then assigned to the federal case, which stated, \"the\n\nUnited States has been in contact and coordination with the victim\n\nof the attempted murder charges and with the Puerto Rico Police\n\nDepartment agent who has conducted the investigation into the\n\nalleged crime.\"17 He further contends that the SAUSA then assigned\n\nto the federal prosecution was on detail from the Puerto Rico\n\nDepartment of Justice, and that the victim (Sepúlveda) and the\n\ninvestigating officer (Quiles) involved in the local prosecution\n\n\"were backbone[s] of the federal prosecution.\" In addition,\n\nSantiago submits that the \"charging structure . . . also supports\n\na finding of strategic cooperation between federal and local\n\nprosecutors.\" In sum, Santiago argues that because \"[local] and\n\nfederal prosecutors -- two hands of the same sovereign --\n\nsimultaneously worked two prosecutions involving the same facts,\n\nthe same witnesses, and the same law[,] [t]heir legal relationship\n\nand actions support[] a finding of privity.\"\n\n We find Santiago's arguments unpersuasive. Although\n\nSantiago argues that Puerto Rico has \"what amounts to an agency\n\nrelationship\" with the United States, Bonilla Romero is clear that\n\n\n17 This quote, taken from the government's motion for an extension\nof time to respond to Santiago's motion to suppress evidence, does\nnot indicate that the SAUSA had been in contact or coordination\nwith state prosecutors.\n\n\n -37-\n\fPuerto Rico's relationship with the United States \"is not\n\ndispositive of whether they are in privity.\" Bonilla Romero,\n\n836 F.2d at 43. Furthermore, the district court explicitly found\n\nthat the federal prosecutor did not participate in the local\n\nproceedings against Santiago, and Santiago failed to show that\n\nthis factual finding was erroneous, much less clearly erroneous.\n\nSee United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir.\n\n2014) (noting that on appeal from a district court's suppression\n\nruling, we review factual findings for clear error). Nor does the\n\nrecord support Santiago's contention that the federal prosecution\n\ncontrolled or was involved in the Commonwealth proceedings, which\n\n\"concerned purely local charges over which the federal enforcement\n\nofficials had no authority and thus no interest.\" Bonilla Romero,\n\n936 F.2d at 44.\n\n Although shortly after the shootout a United States\n\nProbation Officer filed a motion notifying the district court that\n\nhe had been in contact with the victim and the investigating\n\nofficer, the motion does not state or imply that a federal\n\nprosecutor (as opposed to a United States Probation Officer) had\n\nbeen in contact or coordination with state prosecutors. See id.\n\nat 43 (\"In this case, the requirement was not satisfied since the\n\nfederal prosecutors were neither a party, nor in privity with a\n\nparty, to the suppression hearing in the Puerto Rico Superior\n\n\n -38-\n\fCourt.\") (emphasis added). It was not until five months after the\n\nlocal suppression hearing took place that a federal prosecutor\n\nentered an appearance in Santiago's federal probation revocation\n\nproceedings. 18 In addition, although the federal prosecutor\n\nassigned to his case was a SAUSA on detail from the Puerto Rico\n\nDepartment of Justice, Santiago has offered no evidence that she\n\nwas involved in the local suppression proceedings, that she\n\nassisted or gave advice to local authorities, or even discussed\n\nthe matter with them. Moreover, this court has clarified that\n\n\"the appointment of a state prosecutor as a special federal\n\nprosecutor, subsequent to the state court action, 'does not\n\nretroactively make the federal government a party to an earlier\n\nstate court proceeding.'\" United States v. Charles, 213 F.3d 10,\n\n21 (1st Cir. 2000) (quoting United States v. Safari, 849 F.2d 891,\n\n893 (4th Cir. 1988)).\n\n We also find unpersuasive Santiago's argument that\n\nprivity can be found because both prosecutions involve the same\n\nfacts, witnesses (including the victim and the investigating\n\nofficer), or law. Involvement of the same victim and investigating\n\nofficer in two prosecutions is to be expected where local and\n\n\n18 It is understandable that the federal prosecutor would be in\ncontact with the victim and the agent conducting the investigation\nbecause they would presumably be government witnesses at the\nrevocation hearing in federal court.\n\n\n -39-\n\ffederal charges are brought for the same underlying events, even\n\nif the local and federal prosecutions are for different offenses\n\nwith different elements. In fact, the federal and local\n\nprosecutions in Bonilla Romero involved at least the same facts\n\nand witnesses, yet this court found no privity between the\n\nprosecuting authorities. Bonilla Romero, 836 F.2d at 41, 44.\n\nFinally, contrary to Santiago's contention, the timing of the\n\nevents -- where federal charges were brought before the local case\n\nwas dismissed, and local charges were refiled after Santiago's\n\nfederal case was already pending -- suggests that there was no\n\ncoordination between the federal and local prosecutions.\n\n In sum, what determines if privity exists is whether\n\nthere was \"a close or significant relationship between the federal\n\nand Puerto Rico prosecutors during the local suppression\n\n[proceedings] or whether the federal authorities controlled or\n\nactively participated in [those proceedings] such that their\n\ninterests in enforcing federal law were sufficiently represented.\"\n\nId. at 44. Because nothing suggests this happened in Santiago's\n\ncase, we find that there was no privity between the two prosecuting\n\nauthorities and, thus, collateral estoppel is not applicable.\n\n III. Conclusion\n\n For the foregoing reasons, we reverse and vacate the\n\ndistrict court's order and find that, because there was no privity\n\n\n -40-\n\fbetween the two prosecuting authorities, collateral estoppel is\n\ninapplicable. We remand the case to the district court for\n\nproceedings consistent with this decision.\n\n Reversed, Vacated and Remanded.\n\n\n\n\n -41-", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4372439/", "author_raw": "TORRUELLA, Circuit Judge"}]} | TORRUELLA | THOMPSON | KAYATTA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4595186/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellant, v. David SANTIAGO-COLÓN, Defendant, Appellee.\nCourt: U.S. Court of Appeals for the First Circuit\nDate decided: 2019-02-28\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nUnited States Court of Appeals\n For the First Circuit\n\nNo. 16-2509\n\n UNITED STATES OF AMERICA,\n\n Appellant,\n\n v.\n\n DAVID SANTIAGO-COLÓN,\n\n Defendant, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF PUERTO RICO\n [Hon. Gustavo A. Gelpí, U.S. District Judge]\n\n\n Before\n\n Torruella, Thompson, and Kayatta,\n Circuit Judges.\n\n\n John P. Taddei, Attorney, Appellate Section Criminal\nDivision, U.S. Department of Justice, with whom Kenneth A. Blanco,\nActing Assistant Attorney General, Trevor N. McFadden, Acting\nPrincipal Deputy Assistant Attorney General, Rosa E. Rodríguez-\nVélez, United States Attorney, and Mariana E. Bauzá-Almonte,\nAssistant United States Attorney, Chief, Appellate Section, were\non brief, for appellant.\n Andrew S. McCutcheon, Assistant Federal Public Defender, with\nwhom Franco L. Pérez-Redondo, Research & Writing Specialist, Eric\nAlexander Vos, Federal Public Defender, and Vivianne M. Marrero-\nTorres, Assistant Federal Public Defender, Supervisor, Appeals\nSection, were on brief, for appellee.\n\n\n February 28, 2019\n\f TORRUELLA, Circuit Judge. The United States appeals the\n\ndistrict court's order granting David Santiago-Colón's\n\n(\"Santiago\") motion to suppress identification evidence, giving\n\npreclusive effect to a Puerto Rico Court of Appeals's order\n\nsuppressing this same evidence in a local proceeding for different\n\noffenses. According to the district court, inasmuch as Puerto\n\nRico and the United States are a single sovereign for purposes of\n\nthe Double Jeopardy Clause, Puerto Rico v. Sánchez Valle,\n\n136 S. Ct. 1863, 1869-77 (2016), it was bound by the local court's\n\nfinal judgment suppressing identification evidence, even though\n\nfederal prosecutors \"did not participate in the [Puerto Rico] court\n\ncriminal proceedings against Santiago.\" United States v.\n\nSantiago-Colón, 213 F. Supp. 3d 297, 298 (D.P.R. 2016). In so\n\nruling, the district court deviated from our on-point precedent\n\nholding that suppression of evidence by a Puerto Rico court does\n\nnot require a federal court to suppress that same evidence unless\n\nfederal prosecutors were a party, or were in privity with a party,\n\nto the suppression hearing in the Puerto Rico court, United States\n\nv. Bonilla Romero, 836 F.2d 39, 43-44 (1st Cir. 1987), which was\n\nnot the case here. Sánchez Valle, moreover, did not change the\n\nlaw in this area. Accordingly, we reverse and vacate the district\n\ncourt's suppression order.\n\n\t\n\n\n -2-\n\f I. Background\n\nA. Factual Background\n\n On January 13, 2013, Puerto Rico Police Department Agent\n\nCarlos Sepúlveda-Rivera (\"Sepúlveda\") was off-duty at La Casita,\n\na bar in Villalba, Puerto Rico, when he got into an altercation\n\nwith two men. Sepúlveda and the two men exchanged gunfire. After\n\nthe men shot Sepúlveda four times, he was transported to the\n\nhospital for treatment of his injuries. Sergeant Pedro Quiles-\n\nTorres (\"Quiles\") interviewed Sepúlveda at the hospital later that\n\nday. During his interview, Sepúlveda provided a description of\n\nhis two assailants. 1 Based on the descriptions provided by\n\nSepúlveda and a review of the security video footage of La Casita,\n\n\n\n1 According to the government, on the same evening the shootout\noccurred, Sepúlveda provided a description of the shooters'\nphysical characteristics and attire. He described one of his\nassailants, later identified as Santiago, as slim, tall, wearing\na jacket, a black sweater, and short blue pants. Sepúlveda also\nstated that, although he could not remember their names, he knew\nboth assailants. Sepúlveda explained that he knew Santiago\nbecause he played basketball for the team of La Sierra, the\nneighborhood where Sepúlveda resides, and that he was called\n\"Cabezón\" (Spanish for \"Big Head\"). Sepúlveda also stated that\nSantiago was either the son-in-law or former son-in-law of the\nformer mayor of Villalba. Indeed, Santiago's known nickname is\n\"Cabezón,\" he played for La Sierra basketball team, and was related\nto the former mayor of Villalba. As to the second assailant,\nlater identified as Richard Cartagena-Suárez, Sepúlveda provided\na physical description, described his clothing at the time of the\nincident, and stated that he knew him because Sepúlveda had\npreviously assisted in the individual's arrest for an unrelated\noffense.\n\n\n -3-\n\flocal law enforcement agents identified Santiago and Richard\n\nCartagena-Suárez (\"Cartagena\") as the shooters. The next day,\n\nQuiles showed two photo arrays to Sepúlveda, each of them\n\ncontaining nine photos. One array included Santiago's photo, and\n\nthe other one included Cartagena's. Sepúlveda picked Santiago and\n\nCartagena from the photo arrays.\n\nB. Local Case\n\n Puerto Rico prosecutors charged Santiago with attempted\n\nfirst-degree murder, carrying and using a firearm without a\n\nlicense, and discharging or pointing a firearm, in violation of\n\nPuerto Rico law. Santiago moved to suppress Sepúlveda's\n\nidentification of him on the grounds that it was obtained in\n\ncontravention of the Puerto Rico Rules of Criminal Procedure. The\n\nlocal prosecution opposed. The local trial court held a three-\n\nday evidentiary hearing, in which four witnesses (including\n\nSepúlveda and Quiles) testified. After the local trial court\n\ndenied suppression, Santiago appealed to the Puerto Rico Court of\n\nAppeals. The Puerto Rico Court of Appeals then reversed and\n\nsuppressed the identification evidence. It noted some\n\ncontradictions in Sepúlveda's testimony, concluded that\n\nSepúlveda's identification of Santiago \"and the photographic line\n\nup led by Sergeant Quiles were not trustworthy pursuant to the\n\ncriteria established by . . . [the Puerto Rico] Supreme Court in\n\n\n -4-\n\fPueblo v. Hernández González,\" 2009 WL 197570 (2009)\n\n(untranslated), and remanded the case to the local trial court.\n\nSee App. at 65, 84, May 18, 2017, No. 16-2509 (certified\n\ntranslation of People v. Santiago-Colón, KLCE 2014-00130, 2014 WL\n\n5438091 at *13, 20 (P.R. Ct. of App. Sept. 30, 2014)). The Puerto\n\nRico Supreme Court declined to intervene, and the case was later\n\ndismissed.\n\nC. Federal Case\n\n Based on the January 13, 2013 incident, a federal grand\n\njury returned an indictment on June 4, 2015, charging Santiago\n\nwith being a felon in possession of a firearm and ammunition, in\n\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2 Santiago moved\n\nto suppress Sepúlveda's out-of-court identification and to prevent\n\nSepúlveda from identifying him in court. He argued that the\n\nidentification procedure had been unduly suggestive, that the\n\nPuerto Rico Court of Appeals had already considered and rejected\n\nthe testimony of Sepúlveda and Quiles -- \"the only witnesses who\n\n[could] provide material testimony on the issues relevant to the\n\ncase at bar\" -- and that said determination was final. Urging the\n\ncourt to apply a standard like the one used when reviewing habeas\n\n\n\n2 Santiago was indicted after the Puerto Rico Court of Appeals\nissued its opinion suppressing his identification, but before the\nlocal case was dismissed.\n\n\n -5-\n\fcorpus petitions, Santiago argued that \"disagreement alone is not\n\nenough\" for a federal court to ignore a state court's credibility\n\ndetermination. Rather, \"[t]he federal court must conclude not\n\nonly that the state court's determination was wrong, but that it\n\nwas unreasonable in light of the evidence presented.\" Because,\n\naccording to Santiago, the Puerto Rico Court of Appeals's decision\n\nwas not unreasonable, he urged the district court to \"defer\" to\n\nthe \"findings made by Puerto Rico's courts,\" suppress Sepúlveda's\n\nout-of-court identification of Santiago, and preclude Sepúlveda\n\nfrom identifying Santiago in court.\n\n The government opposed the motion, arguing that Santiago\n\nhad failed to show that \"the identification procedure was\n\nimpermissibly suggestive under federal law\" and that, in fact, the\n\nprocedure was reliable. The government also noted that the Puerto\n\nRico Court of Appeals, in reversing the trial court, failed to\n\ngive due deference to the trial judge's findings of fact and\n\ntherefore misapplied Puerto Rico law. Additionally, the\n\ngovernment pointed out that Sepúlveda knew the perpetrators before\n\nthe shootout and identified Santiago by his nickname, supporting\n\nthe reliability of the identification.\n\n On October 4, 2016, without holding a hearing, the\n\ndistrict court granted Santiago's \"request to suppress\n\nidentification.\" That order was followed by an opinion entered\n\n\n -6-\n\fthe same day. Santiago-Colón, 213 F. Supp. 3d 297. In its opinion,\n\nthe district court noted that in Sánchez Valle the U.S. Supreme\n\nCourt held that \"for purposes of the Double Jeopardy Clause, the\n\n[Puerto Rico] and United States governments constitute a single\n\nsovereign, in as much [sic] as the former's power to prosecute\n\nderives from the latter's.\" Id. at 297. The district court\n\nconcluded that it \"must give the [Puerto Rico] court suppression\n\nfindings and judgment preclusive effect\" because \"[n]ot doing so\n\nwould ignore the constitutional reality that indeed [Puerto Rico]\n\nand [the] United States are but one sovereign when it comes to\n\ncriminally prosecuting individuals.\" Id. at 298. It further\n\nnoted that, although federal prosecutors \"did not participate in\n\nthe [Puerto Rico] court criminal proceedings against [Santiago],\n\ntheir local counterparts in fact did\" and \"[t]heir authority to do\n\nso ultimately emanates from the United States.\" Id. (citing\n\nSánchez Valle, 136 S. Ct. at 1863). The district court's order\n\nset a pre-trial conference for November 9, 2016 \"to discuss if the\n\nGovernment ha[d] independent evidence to proceed with its\n\nprosecution, or if it will appeal the Court's suppression order.\"3\n\n On November 10, 2016, the district court held the pre-\n\ntrial conference. At the beginning of the conference, the\n\n\n3 That pre-trial conference was later rescheduled for November 10,\n2016.\n\n\n -7-\n\fdistrict court stated that it believed \"there[] [was] a basis\" for\n\nfiling an interlocutory appeal. The government argued that the\n\ndistrict court's suppression of Santiago's identification was\n\ncontrary to binding First Circuit precedent applying collateral\n\nestoppel principles, including Bonilla Romero, 836 F.2d 39, and\n\nUnited States v. Pérez-Pérez, 72 F.3d 224 (1st Cir. 1995), and\n\nthat Sánchez Valle did not change the law. The district court\n\nrejected the government's arguments and clarified that the court's\n\ndecision was not based on collateral estoppel, but \"on an\n\nassumption that it's the same sovereign.\" According to the\n\ndistrict court, because under Sánchez Valle Puerto Rico and the\n\nUnited States are \"a single sovereign,\" the Puerto Rico court's\n\nsuppression findings and judgment have preclusive effect on a\n\nsubsequent federal prosecution and bind the district court.4\n\n The court then inquired whether the government had\n\nindependent evidence to proceed to trial. The government\n\nresponded that even though the court had suppressed Sepúlveda's\n\nout-of-court identification of Santiago, it \"would like to proceed\n\nto trial\" with the in-court identification, because Sepúlveda knew\n\n\n\n4 In the district court's words, although the local court's\ndecision \"may be a wrong ruling . . . it's still a ruling that's\nfinal,\" it \"binds the [f]ederal [g]overnment,\" and precludes\nrelitigation of the issue in federal court even if the district\ncourt \"disagree[s] with [the ruling].\"\n\n\n -8-\n\fSantiago prior to the January 13th incident and before he saw the\n\nphoto array. The government also indicated that it could use the\n\nsecurity video footage allegedly showing Santiago at the crime\n\nscene. Santiago responded that he thought the district court had\n\nsuppressed both the out-of-court identification (product of the\n\nphoto array) as well as any in-court identification because the\n\nPuerto Rico Court of Appeals had allegedly suppressed both\n\nidentifications. After reviewing again the decision from the\n\nPuerto Rico Court of Appeals, the district court concluded that\n\nthe Puerto Rico Court of Appeals had suppressed both Sepúlveda's\n\nout-of-court and in-court identifications of Santiago, and\n\nresolved to do the same. The court further stated that it would\n\n\"supplement\" its suppression order.\n\n The district court noted that if the government had no\n\nindependent evidence to identify Santiago at trial, the \"course to\n\nproceed would be for the government to file a notice of appeal,\"\n\nbecause the issue was \"definitely capable of repetition,\" would\n\n\"continue happening,\" and was \"appealable interlocutorily.\"\n\nAdditionally, it noted that \"[t]his may be the best case to do\n\nit.\" Santiago agreed that the government \"should go up to the\n\nFirst Circuit to clarify th[e] issue.\"\n\n Consistent with its statements during the pre-trial\n\nconference, later that day the district court entered an order\n\n\n -9-\n\fsupplementing its October 4th order by clarifying that its\n\nsuppression order was \"based on the single sovereign doctrine and\n\nnot on collateral estoppel\" and \"extend[ed] to both the in-court\n\nidentification by . . . Sepúlveda . . . , as well as the photo\n\nidentification.\" On December 2, 2016, the government filed its\n\nnotice of appeal, stating that it was appealing from the order\n\nentered on November 10, 2016. On November 15, 2017, the government\n\nfiled a certification under 18 U.S.C. § 3731 with the district\n\ncourt, in which the United States Attorney certified that \"the\n\nappeal is not taken for the purpose of delay and that the evidence\n\n[suppressed] is a substantial proof of a fact material in the\n\nproceeding.\"\n\n On appeal, the government claims the district court's\n\norder suppressing any in-court identification of Santiago as the\n\nshooter should be reversed because it is contrary to First Circuit\n\nprecedent, which has held that whether suppression of evidence by\n\na local court has preclusive effect in a federal proceeding is an\n\nissue of collateral estoppel, not double jeopardy. It further\n\nclaims that, under collateral estoppel principles, the suppression\n\nof the identification evidence was improper because the two\n\nprosecuting authorities were not in privity.5\n\n\n5 The government does not appeal the suppression of Sepúlveda's\nout-of-court identification of Santiago.\n\n\n -10-\n\f II. Discussion\n\nA. Timeliness of the Notice of Appeal and 18 U.S.C. § 3731\n Certification Requirement\n\n Santiago claims that this court lacks jurisdiction to\n\nentertain this appeal because the government filed an untimely\n\nnotice of appeal and failed to comply with the certification\n\nrequirements under 18 U.S.C. § 3731. We address each procedural\n\nchallenge in turn.\n\n i. Standard of Review and Applicable Law\n\n This court must verify that it has appellate\n\njurisdiction before addressing the merits of any appeal. Espinal-\n\nDomínguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003).\n\n\"Jurisdiction is a question of law subject to de novo review.\"\n\nUnited States v. W.R. Grace, 526 F.3d 499, 505 (9th Cir. 2008).\n\n The Criminal Appeals Act establishes in relevant part\n\nthat:\n\n An appeal by the United States shall lie to a court of\n appeals from a decision or order of a district court\n suppressing or excluding evidence . . ., not made after\n the defendant has been put in jeopardy and before the\n verdict or finding on an indictment or information, if\n the United States attorney certifies to the district\n court that the appeal is not taken for purpose of delay\n and that the evidence is a substantial proof of a fact\n material in the proceeding.\n\n . . .\n\n The appeal in all such cases shall be taken within thirty\n days after the decision, judgment or order has been\n rendered and shall be diligently prosecuted.\n\n -11-\n\f The provisions of this section shall be liberally\n construed to effectuate its purposes.\n\n18 U.S.C. § 3731.\n\n The government is allowed to take an interlocutory\n\nappeal from suppression and exclusion orders in certain\n\ncircumstances to remedy the \"imbalance created by the\n\npeculiarities of criminal procedure.\" United States v. Watson,\n\n386 F.3d 304, 308 (1st Cir. 2004). While a criminal defendant who\n\nhad unsuccessfully sought suppression of evidence before trial\n\ncould appeal the denial of the suppression if he was convicted,\n\ndouble jeopardy principles preclude the government from appealing\n\na pre-trial order suppressing evidence in the event of an\n\nunfavorable verdict at trial. Id. Because \"Congress became\n\nconcerned about both this disparity and the lack of uniform\n\nstandards of admissibility that resulted from it,\" id., it amended\n\nthe Criminal Appeals Act in 1968 to allow the government to appeal\n\na pre-trial suppression or exclusion order, id. at 308-09. In\n\n1970, Congress further amended the Criminal Appeals Act to remedy\n\nthe courts' then-narrow interpretation of § 3731 and to include an\n\nexplicit \"command to construe the statute liberally,\" id. at 309,\n\nwhich this court has construed \"as a cue to put substance ahead of\n\nform\" in deciding whether it has jurisdiction to entertain an\n\nappeal, id. at 310; United States v. Kane, 646 F.2d 4, 7 (1st\n\n\n -12-\n\fCir. 1981) (noting that \"the liberal construction provision\"\n\ndictates \"a practical, rather than formalistic, application\").\n\n ii. Timeliness Issue\n\n Santiago argues that the government's notice of appeal\n\nwas untimely because it was filed more than thirty days after the\n\ndistrict court entered its October 4th order. According to\n\nSantiago, on October 4, 2016, the district court granted his motion\n\nto suppress, which sought to suppress not only Sepúlveda's out-\n\nof-court identification of him (the photo array), but also sought\n\nto prevent Sepúlveda from identifying him in court. Santiago\n\nargues that the government, however, failed to file a notice of\n\nappeal, or request clarification or reconsideration of the order,\n\nuntil after the thirty-day window provided in 18 U.S.C. § 3731 had\n\nexpired.\n\n Santiago acknowledges that \"when the lower court changes\n\nmatters of substance, or resolves a genuine ambiguity\" in an\n\notherwise appealable order, \"the period within which an appeal\n\nmust be taken . . . begin[s] to run anew,\" see Fed. Trade Comm'n\n\nv. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12\n\n(1952), but argues that such is not the case here. He contends\n\nthat while the government attempts to draw a distinction between\n\nthe October 4th and November 10th orders -- characterizing the\n\nformer as suppressing only the out-of-court identification and the\n\n\n -13-\n\flatter as further suppressing any in-court identification by\n\nSepúlveda -- such distinction is inappropriate because the order\n\non November 10th did not materially change the October 4th order.\n\nThe November 10th order, Santiago insists, merely reiterated that\n\nthe prior suppression ruling included both the out-of-court and\n\nthe in-court identifications, which does not serve to start the\n\nclock anew for appellate purposes.\n\n In response, the government argues that the notice of\n\nappeal was timely because it was filed within thirty days of the\n\nNovember 10th order, which it characterizes as a \"'supplement[al]'\n\nsuppression order\" that \"materially amended the original October 4\n\norders by suppressing evidence that was not covered by the original\n\norders.\"\n\n The government states that neither the Puerto Rico Court\n\nof Appeals's opinion nor the district court's October 4th order\n\n\"specifically addressed whether Agent Sepúlveda would be\n\nprohibited from identifying Santiago\" at trial. According to the\n\ngovernment, the \"ambiguous\" language of the Puerto Rico Court of\n\nAppeals's opinion and the district court's October 4th order, in\n\nconjunction with the district court's simultaneous scheduling of\n\na pre-trial conference to discuss whether the government had\n\nindependent evidence to proceed with its prosecution, as well as\n\nfederal case law suggesting that suppression of an out-of-court\n\n\n -14-\n\fidentification by a witness does not necessarily preclude an in-\n\ncourt identification by the same witness, led it to believe that\n\nonly the photo array evidence had been suppressed. The government\n\nsubmits that the October 4th order was so ambiguous that the\n\ndistrict court had to re-read the Puerto Rico Court of Appeals's\n\nopinion in order to determine whether its October 4th order also\n\nencompassed the in-court identification. The government further\n\nargues that if the October 4th order had been clear, as Santiago\n\nclaims, \"it would have been unnecessary for the district court to\n\n'issue a supplement[al] order clarifying' its original ruling\" and\n\nthat the order itself stated that it was a \"supplement\" to the\n\nOctober 4th order, which \"extend[ed]\" suppression to in-court\n\nidentification.\n\n We are persuaded by the government's arguments. The\n\nOctober 4th order did not specify the scope of the suppression,\n\nand the Puerto Rico Court of Appeals's opinion, on which the\n\ndistrict court relied, was ambiguous as to whether it also\n\nprecluded Sepúlveda from identifying Santiago in court. In fact,\n\nthe opinion of the Puerto Rico Court of Appeals gave the impression\n\nthat only the photographic lineup identification had been\n\nsuppressed.6\n\n\n6 The Puerto Rico Court of Appeals's opinion stated as follows:\n\n [P]etitioners filed a Motion to Suppress Identification\n\n -15-\n\f In addition, as the government contends, suppression of\n\na photographic lineup identification does not necessarily require\n\nexclusion of an in-court identification provided that the\n\nprosecution can \"establish by clear and convincing evidence that\n\nthe in-court identification[] w[as] based upon observations of the\n\nsuspect other than the lineup identification.\" Moore v. Illinois,\n\n434 U.S. 220, 225-26 (1977) (quoting United States v. Wade,\n\n388 U.S. 218, 240 (1967)). Hence, this supports the government's\n\nunderstanding that only the out-of-court identification had been\n\nsuppressed, and Sepúlveda could identify Santiago in court based\n\non his knowledge of Santiago prior to the photo array.\n\n Furthermore, as the government argues, the district\n\ncourt's scheduling of a pre-trial conference to discuss whether\n\nthe government had additional evidence to proceed to trial, as\n\nwell as the events that transpired during that pre-trial\n\n\n . . . alleg[ing] that . . . they were identified through\n photographs the day after the facts . . . [and] . . .\n that the process was 'severely vitiated' [in] that it\n did not comply with the provisions of Rule 252.2 of\n [Puerto Rico] Criminal Procedure Rules. . . . [W]e\n conclude that the identification that Agent Sepúlveda\n Rivera made of . . . Santiago . . . and the photographic\n line up [sic] led by Sergeant Quiles were not trustworthy\n pursuant to the criteria established by our Supreme\n Court in Pueblo v. Hernández González. . . . [Thus, the\n trial court's] resolution is vacated and set aside and\n in its consequence, the suppression of the\n identification of petitioners is ordered.\n\nApp. at 41, 84, May 18, 2017, No. 16-2509.\n\n -16-\n\fconference, also support the government's interpretation that the\n\nOctober 4th order had not suppressed all of the identification\n\nevidence. At the November 10th conference, the parties disputed\n\nthe scope of the October 4th suppression order. When the\n\ngovernment stated that it believed the order had suppressed the\n\nout-of-court identification only, the district court did not\n\nclarify that it had also suppressed the in-court identification.\n\nInstead, the court decided to hear from defense counsel. In fact,\n\neven after defense counsel argued that the October 4th order\n\n\"clear[ly]\" suppressed both identifications, the court stated as\n\nfollows:\n\n [I]f the government wants to proceed to trial, what I\n need then is for the government to file a motion and\n inform what witnesses are going to testify and if they're\n going to identify him in court or not so the defense can\n adequately respond. And then I can either -- either\n I'll grant it or deny it. And if I deny it and basically\n I'm suppressing everything, then the government can\n still appeal.\n\n The district court then took a brief recess to review\n\nthe opinion from the Puerto Rico Court of Appeals in order to\n\nascertain the scope of its own suppression order. It was after\n\nreviewing again the opinion from the Puerto Rico Court of Appeals\n\nthat the district court stated that it would suppress both\n\nidentifications. It found that a \"supplement[al] order\n\nclarifying\" its original order was warranted. The court deemed\n\nit appropriate to clarify that its ruling was based \"on the single\n\n -17-\n\fsovereign doctrine, not on collateral estoppel,\" and that its\n\n\"suppression ruling would include the identification of Agent\n\nSepúlveda of the defendant, as well as his . . . photo . . .\n\nidentification.\" It is worth noting that the court stated its\n\nsuppression ruling \"would include,\" and not that it \"included\" or\n\n\"had included,\" the in-court identification. Therefore, the\n\ncourt's chosen language supports the government's contention that\n\nthe original order did not include the in-court identification.\n\nThe court then proceeded to issue a supplemental order clarifying\n\nits October 4th order to these effects. See Dkt. No. 70,\n\nUnited States v. Santiago-Colón, 15-cv-00396 (\"supplement[ing] its\n\nruling [of October 4th] . . . to the effect that that the same\n\n[was] based on the single sovereign doctrine and not on collateral\n\nestoppel\" and \"hold[ing] that its suppression extends to both the\n\nin-court identification by Agent Sepúlveda Rivera, as well as the\n\nphoto identification\").7\n\n Considering the record as a whole, we hold that the\n\nNovember 10th order amended or materially changed the October 4th\n\norder, which had the effect of restarting the thirty-day clock.\n\n\n\n7 The court used the language \"the Court holds\" as if it was\ndetermining the scope of the suppression for the first time,\ninstead of using language such as \"clarifies,\" which would suggest\nthat the decision had been previously taken. Dkt. No. 70,\nUnited States v. Santiago-Colón, 15-cv-00396 (emphasis added).\n\n\n -18-\n\fThis makes timely the government's notice of appeal of the\n\nNovember 10th order. See United States v. Cheal, 389 F.3d 35, 53\n\n(1st Cir. 2004) (noting that courts are encouraged \"to construe\n\nnotices of appeal liberally and examine them in the context of the\n\nrecord as a whole\" (quoting Chamorro v. Puerto Rican Cars, Inc.,\n\n304 F.3d 1, 3 (1st Cir. 2002))).\n\n iii. 18 U.S.C. § 3731 Certification Issue\n\n Santiago also argues that this court lacks jurisdiction\n\nto entertain the interlocutory appeal because the United States\n\nAttorney did not timely file a § 3731 certification with the\n\ndistrict court certifying that the appeal was not taken to delay\n\nthe proceedings and that the evidence suppressed is substantial\n\nproof of a material fact. Santiago acknowledges that this court\n\nhas not addressed whether certification is a pre-condition to\n\nappellate jurisdiction but argues that we should treat it as such.\n\nHe further argues that even if we were to treat non-compliance\n\nwith the certification requirement as a \"filing irregularity\"\n\ngoverned by Federal Rule of Appellate Procedure 3(a) -- which would\n\nleave any appropriate action, including dismissal of the appeal,\n\nto the court's sound discretion -- we should not condone the\n\ngovernment's \"disregard for diligence.\"\n\n In response, the government acknowledges that it filed\n\nthe § 3731 certification belatedly, after Santiago pointed out the\n\n\n -19-\n\fgovernment's non-compliance with the certification requirement in\n\nhis response brief, and apologizes for the late filing.8 But, the\n\ngovernment claims that such late filing does not require dismissal\n\nof the appeal.\n\n The government notes that \"[t]he purpose of the\n\ncertification requirement is to ensure that the prosecutor\n\ncarefully analyzed the case before deciding to appeal\" and that,\n\ndespite its belated filing of the § 3731 certification, the\n\ngovernment did comply with the substance of § 3731 before it filed\n\nits notice of appeal. It points out that the Solicitor General,\n\nwho decides whether the government will seek appellate review in\n\na given case, \"considers a variety of factors, such as the limited\n\nresources of the government and the crowded dockets of the courts,\n\nbefore authorizing an appeal,\" and that this deliberative process\n\nwas followed here, when the Acting Solicitor General approved\n\nfiling an appeal on April 19, 2017. It further points out that\n\nthe Criminal Division of the United States Attorney's Office also\n\n\"thorough[ly] review[ed]\" this case before the government decided\n\nto file its notice of appeal.\n\n\n8 The government explains that at the time it filed its notice of\nappeal, counsel of record was a Special Assistant United States\nAttorney (\"SAUSA\") on detail from the Puerto Rico Department of\nJustice who was inexperienced in federal appellate procedures, and\nthe government first became aware of the missing certification\nwhen Santiago raised the issue in his response brief.\n\n\n -20-\n\f The government contends that most appellate courts that\n\nhave addressed the issue have not treated the certification as a\n\njurisdictional requirement. Rather, \"[t]hey have held that\n\nwhether dismissal is an appropriate remedy is a matter that falls\n\nwithin the court's discretion.\"\n\n Furthermore, the government points us to United States\n\nv. Crespo-Ríos, 645 F.3d 37 (1st Cir. 2011), in which this court\n\nrejected the argument that dismissal was warranted because the\n\nUnited States Attorney had not personally signed the § 3731\n\ncertification filed with the district court. It notes that in\n\nCrespo-Ríos the court gave weight to the deliberative process the\n\ngovernment underwent before filing its appeal (including review by\n\nthe United States Attorney and the Solicitor General), as well as\n\nto Congress's mandate that § 3731 be construed liberally. The\n\ngovernment argues that both considerations are present in this\n\ncase and thus urges us to consider the appeal on its merits.\n\n It is uncontested that the government filed its § 3731\n\ncertification belatedly. However, in light of Congress's mandate\n\nthat 18 U.S.C. § 3731 be \"liberally construed to effectuate its\n\npurposes,\" we decline Santiago's invitation to treat the\n\ncertification as a jurisdictional requirement. Instead, we join\n\nmost of the circuits that have addressed the issue and leave it to\n\nthe court's sound discretion to determine whether dismissal of an\n\n\n -21-\n\fappeal for failure to comply with the § 3731 certification\n\nrequirement is appropriate in a particular case. See, e.g.,\n\nUnited States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (per\n\ncuriam) (refusing to treat § 3731's certification requirement as\n\njurisdictional and exercising appellate jurisdiction even though\n\nthe United States Attorney's certification was filed after the\n\ndefendant-appellee had already filed his brief, because the\n\nSolicitor General had authorized the appeal and there seemed to be\n\nno prejudice resulting from the belated filing); see also\n\nUnited States v. McNeill, 484 F.3d 301, 309 (4th Cir. 2007) (noting\n\nthat failure to file a timely § 3731 certification does not deprive\n\nthe court of jurisdiction over the appeal, but \"is a ground for\n\nthe court of appeals to act as it considers appropriate\") (internal\n\nquotation marks and citation omitted); United States v. Smith,\n\n263 F.3d 571, 578 (6th Cir. 2001) (treating a failure to timely\n\nfile a § 3731 as \"an irregularity in perfecting [an] appeal\" and\n\nnoting that its \"sister circuits have consistently held that the\n\ndelayed filing of a section 3731 certificate, although disfavored,\n\ndoes not divest appellate courts of their jurisdiction\")\n\n(collecting cases).\n\n Here, we find that dismissal of the appeal is\n\nunwarranted. This case presents an important issue that, as the\n\ndistrict court acknowledged, is \"definitely capable of repetition\"\n\n\n -22-\n\fand would \"continue happening.\" In fact, the United States\n\nDistrict Court for the District of Puerto Rico is already split as\n\nto how to resolve this issue of law.9 Moreover, this case presents\n\na question of law and, as the district court stated, \"[t]his may\n\nbe the best case to [decide the issue],\" which has been fully\n\nbriefed. We note that although the government failed to file the\n\nrequired certification at the time it filed its notice of appeal,\n\nit complied with the substance and purpose of the certification\n\nrequirement. As the government explained, before it filed its\n\nbrief, the government engaged in the deliberative process to\n\ndetermine whether the issue should be taken on appeal. Compliance\n\nwith the essence of this deliberative process, as well as the\n\nmandate to construe the statute liberally, were determinative\n\nfactors in Crespo-Ríos. 645 F.3d at 44 n.6. Furthermore, the\n\ngovernment's failure to timely file the § 3731 certification has\n\nin no way prejudiced Santiago.10 See Smith, 263 F.3d at 578 (noting\n\n\n9 In United States v. Rosado-Cancel, the district court rejected\nthe defendant's argument that federal firearms charges should be\ndismissed under Sánchez-Valle because a Puerto Rico court had\nalready dismissed parallel Puerto Rico firearms charges for lack\nof probable cause. No. 13-731, 2017 WL 543199, at *7 (D.P.R.\nFeb. 10, 2017) (Domínguez, J.). Relying on our holding in Bonilla\nRomero, the district court held that \"any issue preclusion argument\n. . . would . . . fail on lack-of-privity grounds.\" Id.\n10 Santiago claims to have been prejudiced by the government's\nbelated filing of its § 3731 certification because he has remained\nimprisoned during the pendency of the government's appeal. He has\nfailed, however, to explain how his situation would have been\n\n -23-\n\fthat \"[i]n exercising their discretion, courts typically consider\n\na variety of factors, including: when the certificate was filed;\n\nthe reason for the failure to timely file it; whether the\n\ngovernment did in fact engage in a conscientious pre-appeal\n\nanalysis; whether the government acknowledges that the\n\ncertification requirement should be taken seriously; any delay or\n\nprejudice to the defendant; whether the appeal raises important\n\nlegal issues needing appellate clarification; and whether the\n\nappeal should be heard in the interest of justice, or for any other\n\nsignificant reason\") (internal quotation marks omitted).\n\n Finding no procedural issue that divests us of\n\njurisdiction, we now turn to the merits of this appeal.\n\nB. Suppression Issue\n\n The government argues that the district court's\n\nconclusion -- that because Puerto Rico and the United States are\n\na single sovereign for purposes of the Double Jeopardy Clause,\n\nsuppression rulings by Puerto Rico courts are binding in federal\n\nprosecutions -- is unsupported by Sánchez Valle and contrary to\n\nlongstanding First Circuit precedent.\n\n\n\n\ndifferent had the government timely complied with the\ncertification requirement. Thus, Santiago has not shown any\nprejudice stemming from the belated filing.\n\n\n -24-\n\f According to the government, Sánchez Valle does not hold\n\nthat Puerto Rico and the United States are the same for purposes\n\nof all criminal law enforcement and procedure. Instead, it\n\nnarrowly held that they are a single sovereign for double jeopardy\n\npurposes, which the government posits has no bearing in this case.\n\nThe government argues that the doctrine of collateral estoppel is\n\ncontrolling, as held in \"two precedential decisions\" which it\n\nclaims are still binding: Bonilla Romero, 836 F.2d at 42-43, and\n\nPérez-Pérez, 72 F.3d at 226. Under a collateral estoppel\n\nanalysis, the government urges us to find that the district court\n\nwas not collaterally estopped by the local court's suppression\n\ndecision because the United States was neither a party, nor in\n\nprivity with a party, at the local suppression proceedings.\n\n Santiago agrees with the government that \"the doctrine\n\nof collateral estoppel controls this case rather than double\n\njeopardy.\" He notes that the district court \"conflate[d] the\n\ntwo,\" but argues that its ruling is nevertheless \"clear.\"\n\nSantiago further argues that Sánchez Valle confirmed that Puerto\n\nRico \"has what amounts to an agency relationship with the federal\n\ngovernment.\" Yet, because Bonilla Romero predates Sánchez Valle,\n\nthe former \"did not fully confront Puerto Rico's agency\n\nrelationship with the United States\" and thus should not be\n\ncontrolling. Santiago submits that, in any event, even if Bonilla\n\n\n -25-\n\fRomero is still good law, it is \"factually and legally\n\ndistinguishable\" from his case.\n\n In Bonilla Romero, this court rejected Santiago's\n\ncontention that suppression of evidence by a Puerto Rico court in\n\na local prosecution necessarily requires suppression of the same\n\nevidence in a subsequent federal prosecution. 836 F.2d at 41-45.\n\nThere, Puerto Rico officers had seized two firearms and drugs from\n\nthe car and house of the defendant, who was charged with weapons\n\nand drug offenses under Puerto Rico law. Id. at 41. Months\n\nlater, based on that same evidence, a grand jury returned an\n\nindictment charging the defendant with federal crimes. Id. After\n\nholding a hearing, the Puerto Rico trial court granted the\n\ndefendant's motion to suppress because the local judge \"seriously\n\ndoubted the veracity\" of the officers' testimony. Id. The local\n\nprosecution was subsequently dismissed. Id. The defendant then\n\nsought suppression of the same evidence in the district court.\n\nId. The district court \"held that the federal court was not bound\n\nby the decision of the local court to suppress the evidence\" and\n\nultimately denied the defendant's motion to suppress. Id. After\n\nthe defendant was convicted on all federal counts, he appealed the\n\ndenial of his motion to suppress, arguing, inter alia, that\n\nallowing the government to relitigate the suppression issue\n\n\n\n\n -26-\n\fviolated the Double Jeopardy Clause as well as collateral estoppel\n\nprinciples. Id.\n\n We rejected both challenges. First, regarding the\n\ndouble jeopardy challenge, we noted that \"jeopardy 'attaches' when\n\na trial commences; that is, when a jury is sworn or empanelled or,\n\nin a bench trial, when the judge begins to hear evidence.\" Id.\n\nat 42 (citing Willhauck v. Flanagan, 448 U.S. 1323, 1325-26\n\n(1980)). Because \"jeopardy did not attach as a result of the\n\nsuppression of evidence ordered . . . by the Puerto Rico . . .\n\n[c]ourt[,] and the subsequent dismissal of charges under Puerto\n\nRico law,\" the litigation of the suppression of evidence issue in\n\nfederal court did not violate the defendant's rights under the\n\nDouble Jeopardy Clause. Id.\n\n Second, assuming without deciding that the doctrine of\n\ncollateral estoppel applied even when jeopardy had not attached,11\n\nwe rejected the defendant's contention that \"relitigation of the\n\n\n11 As in Bonilla Romero, this appeal does not require us to decide\nwhether collateral estoppel is applicable in criminal proceedings\nregardless of whether jeopardy has attached. See Bonilla Romero,\n836 F.2d at 43. Because both parties urge us to apply the doctrine\nof collateral estoppel, and because we would reach the same result\nirrespective of whether the doctrine applies, we assume that the\ncollateral estoppel doctrine is applicable regardless of whether\njeopardy has attached. We further note that, although the\ngovernment stated at oral argument that the Supreme Court seems to\nbe moving away from applying collateral estoppel in criminal cases,\nthe parties did not brief the issue and, instead, both assumed\nthat the collateral estoppel doctrine remains applicable.\n\n\n -27-\n\fsuppression was barred by the principle of collateral estoppel\" in\n\nthat case. Id. at 42-44. We noted that the doctrine of collateral\n\nestoppel requires, inter alia, \"that the party to be precluded\n\nfrom relitigating an issue decided in a previous litigation . . .\n\neither [had been] a party or [had been] in privity with a party to\n\nthat prior litigation,\" and concluded that said requirement was\n\nnot satisfied in that case because \"the federal prosecutors were\n\nneither a party, nor in privity with a party, to the suppression\n\nhearing in the Puerto Rico Superior Court.\"12 Id. at 43. We\n\nclarified that \"the source of authority of two government entities\n\nis not dispositive of whether they are in privity.\" Id. at 43.\n\nThus, \"Puerto Rico's sovereignty status as a United States\n\nterritory\" has no bearing on the determination of whether federal\n\nprosecutors would be bound by a prior suppression of the same\n\nevidence by a Puerto Rico court.13 Id. at 44. Instead, \"we must\n\n\n12 We found that there was no evidence that federal prosecutors\nwere involved in the local prosecution or that they provided\nassistance or advice to local authorities. Id. at 44. We further\nnoted that \"[t]he initial suppression hearing concerned purely\nlocal charges over which the federal enforcement officials had no\nauthority and thus no interest,\" and, accordingly, \"[f]ederal\nprosecutors had no reason to believe that a Puerto Rico Superior\nCourt judge would be deciding any matters affecting a federal\nprosecution.\" Id.\n13 Prior to Bonilla Romero, this court had addressed Puerto Rico's\nsovereignty status as a United States territory in United States\nv. López Andino, where we held that Puerto Rico was a \"separate\nsovereign for the limited purpose of the double jeopardy clause.\"\n831 F.2d 1164, 1168 (1st Cir. 1987), overruled by Sánchez Valle,\n\n -28-\n\fdetermine whether there was a close or significant relationship\n\nbetween the federal and Puerto Rico prosecutors during the local\n\nsuppression hearing or whether the federal authorities controlled\n\nor actively participated in that hearing such that their interests\n\nin enforcing federal law were sufficiently represented.\" Id.\n\n In Pérez-Pérez, we reiterated Bonilla Romero's holding\n\nthat application of the doctrine of collateral estoppel in criminal\n\ncases requires that \"the party to be precluded . . . have been the\n\nsame as, or in privity with, the party who lost on that issue in\n\nthe prior litigation.\" 72 F.3d at 226 (citing Bonilla Romero, 836\n\nF.2d at 42-44). We noted that Bonilla Romero had already rejected\n\nthe defendant's argument that if the United States and Puerto Rico\n\nwere considered a \"single sovereign\" for double jeopardy purposes,\n\nthen they were also in privity under collateral estoppel\n\nprinciples. Id.\n\n Bonilla Romero directly addresses the issue presently\n\nbefore us. The district court, however, found that it is no longer\n\ngood law in light of Sánchez Valle. It held that because under\n\nSánchez Valle Puerto Rico and the United States are considered\n\n\"one sovereign when it comes to criminally prosecuting\n\n\n136 S. Ct. at 1868. In Bonilla Romero, we noted that there was\n\"extensive argument[]\" over that conclusion, including\ndisagreement among members of this court. 836 F.2d at 42 n.2, 44\nn.4.\n\n\n -29-\n\findividuals,\" it \"must give the [Puerto Rico] court suppression\n\nfindings and judgment preclusive effect\" even when federal\n\nprosecutors \"did not participate in the [Puerto Rico] court\n\ncriminal proceedings against Santiago.\" We disagree.\n\n Sánchez Valle is a double jeopardy case. The Double\n\nJeopardy Clause of the Fifth Amendment protects an individual from\n\nbeing \"twice put in jeopardy of life or limb\" for the same offense,\n\nU.S. Const. amend. V., if the prosecutions are brought by the same\n\nsovereign, Sánchez Valle, 136 S. Ct. at 1870. In Sánchez Valle,\n\nthe Supreme Court faced the issue of whether Puerto Rico and the\n\nUnited States were the same sovereign for purposes of the Double\n\nJeopardy Clause, which would in turn determine whether the federal\n\ngovernment and Puerto Rico were barred \"from successively\n\nprosecuting a defendant on like charges for the same conduct.\"\n\nId. To determine whether Puerto Rico and the United States were\n\nthe same or different sovereigns for double jeopardy purposes, the\n\ncourt performed a \"historical, not functional,\" inquiry, id. at\n\n1871, looking only to \"whether the prosecutorial powers of the two\n\njurisdictions ha[d] independent origins,\" id. (citing United\n\nStates v. Wheeler, 435 U.S. 313, 320 (1978)).14 It held that they\n\n\n14 The Court specifically stated that \"the 'extent of control'\nthat 'one prosecuting authority [wields] over the other'\" is\nirrelevant. Sánchez Valle, 136 S. Ct. at 1870 (alteration in\noriginal).\n\n\n -30-\n\fdid not, because \"the oldest roots of Puerto Rico's power to\n\nprosecute lie in federal soil,\" id. at 1868, inasmuch as \"Congress\n\nconferred the authority to create the Puerto Rico Constitution,\n\nwhich in turn confers the authority to bring criminal charges,\"\n\nid. at 1876. Because the prosecutorial authority of both the\n\nfederal government and Puerto Rico emanates from a single source\n\n-- Congress -- the two are considered a single sovereign for double\n\njeopardy purposes and \"the two governments cannot 'twice put' [an\n\nindividual] 'in jeopardy' for the 'same offence.'\" Id. at 1875-77.\n\n There is no doubt that double jeopardy concerns are not\n\nimplicated in this case. Santiago's local charges were dismissed\n\nbefore trial, and thus jeopardy never attached in the local\n\ncourts.15 Santiago concedes as much. The district court itself\n\nacknowledged that Sánchez Valle is a case about double jeopardy,\n\nbut stated that it would \"extend Sánchez Valle to the suppression\n\ncontext . . . based on the fact that [Puerto Rico and the United\n\nStates are] a single sovereign.\" According to the district court,\n\nalthough there is no indication in Sánchez Valle that the Supreme\n\n\n\n15 Furthermore, the local and federal charges were not for the\nsame offenses. See Brown v. Ohio, 432 U.S. 161, 165 (1977) (\"The\nDouble Jeopardy Clause 'protects against a second prosecution for\nthe same offense after acquittal. It protects against a second\nprosecution for the same offense after conviction. And it\nprotects against multiple punishments for the same offense.'\"\n(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))).\n\n\n -31-\n\fCourt intended to extend its analysis of the \"notion to\n\nsovereignty\" outside of the double jeopardy context, it did not\n\npreclude it either. The district court's holding, however, runs\n\nhead-on into the law of the circuit rule.\n\n \"The law of the circuit rule (a branch of the stare\n\ndecisis doctrine) holds that 'newly constituted panels in a multi-\n\npanel circuit court are bound by prior panel decisions that are\n\nclosely on point.'\" United States v. Wurie, 867 F.3d 28, 34 (1st\n\nCir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co.,\n\n612 F.3d 25, 33 (1st Cir. 2010)). Exceptions to this rule are\n\n\"extremely narrow and their incidence is hen's-teeth-rare.\"\n\nSan Juan Cable LLC, 612 F.3d at 33. \"Such exceptions come into\n\nplay only when the holding of the prior panel is 'contradicted by\n\ncontrolling authority, subsequently announced (say, a decision of\n\nthe authoring court en banc, a Supreme Court opinion directly on\n\npoint, or a legislative overruling).'\" Id. (quoting United States\n\nv. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)). \"An even less\n\ncommon exception has been recognized in those 'rare instances in\n\nwhich authority that postdates the original decision, although not\n\ndirectly controlling, nevertheless offers a sound reason for\n\nbelieving that the former panel, in light of fresh developments,\n\nwould change its collective mind.'\" Wurie, 867 F.3d at 34 (quoting\n\nRodríguez, 527 F.3d at 225).\n\n\n -32-\n\f Here, there has been no en banc decision from this court\n\ncontradicting our holding in Bonilla Romero. There has also been\n\nno statutory overruling. Nor is there a Supreme Court opinion\n\ndirectly on point contradicting our precedent. We are thus left\n\nto consider the only remaining exception to the law of the circuit\n\nrule -- whether Sánchez Valle, although not directly controlling,\n\noffers a sound reason for believing that the Bonilla Romero panel\n\nwould change its collective mind. We find that it does not.\n\n Sánchez Valle, which had nothing to do with collateral\n\nestoppel, and where the Supreme Court emphasized the narrowness of\n\nits holding, held that Puerto Rico and the United States are a\n\nsingle sovereign for purposes of the Double Jeopardy Clause because\n\nthe source of authority of both prosecutorial powers derive from\n\nthe same source. Although Puerto Rico and the United States had\n\nnot been considered a single sovereign in the context of a criminal\n\nproceeding at the time that Bonilla Romero and Pérez-Pérez were\n\ndecided, this court nevertheless considered in Bonilla Romero the\n\npossible effect of deeming Puerto Rico and the United States a\n\nsingle sovereign and rejected that the \"source of authority of\n\n[the] two governmental entities\" could be \"dispositive of whether\n\nthey are in privity.\" Bonilla Romero, 836 F.2d at 43.\n\n We held, both in Bonilla Romero and in Pérez-Pérez, that\n\nPuerto Rico's sovereign status as a United States territory \"does\n\n\n -33-\n\fnot determine whether the federal prosecutors are bound by a\n\npretrial suppression order issued by a Puerto Rico court.\"\n\nBonilla Romero, 836 F.2d at 44; see also Pérez-Pérez, 72 F.3d at\n\n226 (noting that Bonilla Romero rejected that finding that Puerto\n\nRico and the United States are a \"single sovereign\" \"establishes\n\nan identity between the two governments\"). Instead, what\n\ndetermines whether collateral estoppel is applicable is whether\n\n\"the party to be precluded from relitigating an issue decided in\n\na previous litigation was either a party or in privity with a party\n\nto that prior litigation.\" Bonilla Romero, 836 F.2d at 43.\n\nBecause at the time of Bonilla Romero and Pérez-Pérez we considered\n\nthe possibility that Puerto Rico and the United States could be\n\ndeemed a single sovereign, and nonetheless rejected that a finding\n\nof single sovereignty would affect our analysis of the issue, we\n\nfind no sound reason to believe that the Bonilla Romero panel would\n\nchange its collective mind in light of Sánchez Valle.\n\nAccordingly, we conclude that Bonilla Romero is still good law.\n\n Santiago, however, urges us to find his case\n\ndistinguishable from Bonilla Romero, arguing that: (1) unlike in\n\nhis case, the local decision suppressing the evidence in\n\nBonilla Romero was not \"a final decision from the highest court in\n\nPuerto Rico\"; (2) the district court in Bonilla Romero had held a\n\nsuppression hearing before the local court entered its order\n\n\n -34-\n\fsuppressing the evidence in the local proceedings; (3) it is\n\n\"unclear from the record in Bonilla Romero whether the [local]\n\ncourt applied relevant federal law in its order granting the motion\n\nto suppress\"; and, (4) because Bonilla Romero was decided shortly\n\nafter López Andino, 831 F.2d at 1164, we can presume that\n\nLópez Andino's holding \"permeated\" Bonilla Romero's rationale; yet\n\nthat rationale no longer stands on firm ground after Sánchez Valle.\n\nWe find these arguments unpersuasive. Nothing in Bonilla Romero\n\nsuggests that the first three factors played any role in this\n\ncourt's analysis.16 Santiago's last alleged distinction fares no\n\nbetter in light of Bonilla Romero's explicit statement that \"the\n\nsource of authority of the two government entities\" was also\n\nirrelevant to the analysis. Bonilla Romero, 836 F.2d at 43-44.\n\nAccordingly, we do not find Santiago's case distinguishable from\n\nBonilla Romero.\n\n Applying our on-point precedent, we conclude that the\n\ndistrict court erred when it deemed itself bound by the Puerto\n\n\n16 Furthermore, Santiago's argument that his case is\ndistinguishable from Bonilla Romero because that case did not\ninvolve \"a final decision from the highest court in Puerto Rico\"\nis misleading. The local decision suppressing the identification\nevidence in Santiago's local case, although final, was not a\ndecision from the highest court in Puerto Rico. In fact, the\nPuerto Rico Supreme Court declined to intervene in the case. Thus,\nit was a final decision from the local intermediate court. In any\nevent, how high the case went in the local courts is not relevant\nto whether there was privity between the prosecuting authorities.\n\n\n -35-\n\fRico Court of Appeals's decision to suppress the identification\n\nevidence without analyzing whether the requirements of collateral\n\nestoppel were satisfied. See id.; see also Pérez-Pérez, 75 F.3d\n\nat 226. We note that the district court went to great lengths to\n\nclarify that it was not ruling on collateral estoppel grounds, but\n\nthat was precisely the analysis that it should have applied. The\n\ndistrict court should have analyzed whether the federal prosecutor\n\nwas in privity with the local prosecutors that participated in the\n\nlocal suppression proceedings. It erred in failing to do so.\n\n As his final plea, Santiago urges us to find that the\n\ngovernment is collaterally estopped from litigating the\n\nsuppression issue in the district court. He argues that, although\n\nthe federal prosecution was not a party, it was in privity with\n\nthe local prosecution when the latter litigated the suppression\n\nissue in Puerto Rico courts. Because the parties do not dispute\n\nthe facts on which the privity analysis hinges, we proceed to\n\nanalyze the issue. See Bonilla Romero, 836 F.2d at 43-44 (analyzing\n\nthe privity issue in the first instance).\n\n Santiago posits that the federal prosecution was in\n\nprivity with the local prosecution due to the relationship between\n\nlocal and federal prosecutors. He claims that the federal\n\nprosecution was involved in his local proceedings because the\n\nevents of January 13 constituted a violation of his federal\n\n\n -36-\n\fprobation. In support of this assertion, he cites to a filing by\n\nthe SAUSA then assigned to the federal case, which stated, \"the\n\nUnited States has been in contact and coordination with the victim\n\nof the attempted murder charges and with the Puerto Rico Police\n\nDepartment agent who has conducted the investigation into the\n\nalleged crime.\"17 He further contends that the SAUSA then assigned\n\nto the federal prosecution was on detail from the Puerto Rico\n\nDepartment of Justice, and that the victim (Sepúlveda) and the\n\ninvestigating officer (Quiles) involved in the local prosecution\n\n\"were backbone[s] of the federal prosecution.\" In addition,\n\nSantiago submits that the \"charging structure . . . also supports\n\na finding of strategic cooperation between federal and local\n\nprosecutors.\" In sum, Santiago argues that because \"[local] and\n\nfederal prosecutors -- two hands of the same sovereign --\n\nsimultaneously worked two prosecutions involving the same facts,\n\nthe same witnesses, and the same law[,] [t]heir legal relationship\n\nand actions support[] a finding of privity.\"\n\n We find Santiago's arguments unpersuasive. Although\n\nSantiago argues that Puerto Rico has \"what amounts to an agency\n\nrelationship\" with the United States, Bonilla Romero is clear that\n\n\n17 This quote, taken from the government's motion for an extension\nof time to respond to Santiago's motion to suppress evidence, does\nnot indicate that the SAUSA had been in contact or coordination\nwith state prosecutors.\n\n\n -37-\n\fPuerto Rico's relationship with the United States \"is not\n\ndispositive of whether they are in privity.\" Bonilla Romero,\n\n836 F.2d at 43. Furthermore, the district court explicitly found\n\nthat the federal prosecutor did not participate in the local\n\nproceedings against Santiago, and Santiago failed to show that\n\nthis factual finding was erroneous, much less clearly erroneous.\n\nSee United States v. Tiru-Plaza, 766 F.3d 111, 114-15 (1st Cir.\n\n2014) (noting that on appeal from a district court's suppression\n\nruling, we review factual findings for clear error). Nor does the\n\nrecord support Santiago's contention that the federal prosecution\n\ncontrolled or was involved in the Commonwealth proceedings, which\n\n\"concerned purely local charges over which the federal enforcement\n\nofficials had no authority and thus no interest.\" Bonilla Romero,\n\n936 F.2d at 44.\n\n Although shortly after the shootout a United States\n\nProbation Officer filed a motion notifying the district court that\n\nhe had been in contact with the victim and the investigating\n\nofficer, the motion does not state or imply that a federal\n\nprosecutor (as opposed to a United States Probation Officer) had\n\nbeen in contact or coordination with state prosecutors. See id.\n\nat 43 (\"In this case, the requirement was not satisfied since the\n\nfederal prosecutors were neither a party, nor in privity with a\n\nparty, to the suppression hearing in the Puerto Rico Superior\n\n\n -38-\n\fCourt.\") (emphasis added). It was not until five months after the\n\nlocal suppression hearing took place that a federal prosecutor\n\nentered an appearance in Santiago's federal probation revocation\n\nproceedings. 18 In addition, although the federal prosecutor\n\nassigned to his case was a SAUSA on detail from the Puerto Rico\n\nDepartment of Justice, Santiago has offered no evidence that she\n\nwas involved in the local suppression proceedings, that she\n\nassisted or gave advice to local authorities, or even discussed\n\nthe matter with them. Moreover, this court has clarified that\n\n\"the appointment of a state prosecutor as a special federal\n\nprosecutor, subsequent to the state court action, 'does not\n\nretroactively make the federal government a party to an earlier\n\nstate court proceeding.'\" United States v. Charles, 213 F.3d 10,\n\n21 (1st Cir. 2000) (quoting United States v. Safari, 849 F.2d 891,\n\n893 (4th Cir. 1988)).\n\n We also find unpersuasive Santiago's argument that\n\nprivity can be found because both prosecutions involve the same\n\nfacts, witnesses (including the victim and the investigating\n\nofficer), or law. Involvement of the same victim and investigating\n\nofficer in two prosecutions is to be expected where local and\n\n\n18 It is understandable that the federal prosecutor would be in\ncontact with the victim and the agent conducting the investigation\nbecause they would presumably be government witnesses at the\nrevocation hearing in federal court.\n\n\n -39-\n\ffederal charges are brought for the same underlying events, even\n\nif the local and federal prosecutions are for different offenses\n\nwith different elements. In fact, the federal and local\n\nprosecutions in Bonilla Romero involved at least the same facts\n\nand witnesses, yet this court found no privity between the\n\nprosecuting authorities. Bonilla Romero, 836 F.2d at 41, 44.\n\nFinally, contrary to Santiago's contention, the timing of the\n\nevents -- where federal charges were brought before the local case\n\nwas dismissed, and local charges were refiled after Santiago's\n\nfederal case was already pending -- suggests that there was no\n\ncoordination between the federal and local prosecutions.\n\n In sum, what determines if privity exists is whether\n\nthere was \"a close or significant relationship between the federal\n\nand Puerto Rico prosecutors during the local suppression\n\n[proceedings] or whether the federal authorities controlled or\n\nactively participated in [those proceedings] such that their\n\ninterests in enforcing federal law were sufficiently represented.\"\n\nId. at 44. Because nothing suggests this happened in Santiago's\n\ncase, we find that there was no privity between the two prosecuting\n\nauthorities and, thus, collateral estoppel is not applicable.\n\n III. Conclusion\n\n For the foregoing reasons, we reverse and vacate the\n\ndistrict court's order and find that, because there was no privity\n\n\n -40-\n\fbetween the two prosecuting authorities, collateral estoppel is\n\ninapplicable. We remand the case to the district court for\n\nproceedings consistent with this decision.\n\n Reversed, Vacated and Remanded.\n\n\n\n\n -41-\n[END_CASE]",
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8,443,862 | XIU JIN JIANG, Guo Zhong Dong v. Matthew G. WHITAKER, Acting United States Attorney General | Xiu Jin Jiang v. Whitaker | 2019-02-01 | 16-4077 | U.S. Court of Appeals for the Second Circuit | {"judges": "Dismissed, Jacobs, Leval, Newman, Reasons, Review", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415289/", "author_raw": ""}]} | JACOBS | LEVAL | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443862/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: XIU JIN JIANG, Guo Zhong Dong v. Matthew G. WHITAKER, Acting United States Attorney General\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,587,076 | Gary W. RICHARDS, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. DIRECT ENERGY SERVICES, LLC, Defendant-Appellee. | Richards v. Direct Energy Servs., LLC | 2019-02-04 | 17-1003-cv; August Term 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Pooler, Parker, Livingston", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887955/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9887956/", "author_raw": ""}, {"author": "DEBRA ANN LIVINGSTON, Circuit Judge:", "type": "010combined", "text": "17‐1003‐cv \nRichards v. Direct Energy Servs., LLC \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n \n August Term 2017 \n \n (Argued: April 11, 2018 Decided: February 4, 2019) \n \n No. 17‐1003‐cv \n \n –––––––––––––––––––––––––––––––––––– \n \n GARY W. RICHARDS, \n on behalf of himself and all others similarly situated, \n \n Plaintiff‐Appellant, \n \n ‐v.‐ \n \n DIRECT ENERGY SERVICES, LLC, \n \n Defendant‐Appellee. \n \n –––––––––––––––––––––––––––––––––––– \n \nBefore: POOLER, PARKER, and LIVINGSTON, Circuit Judges. \n \n Plaintiff‐Appellant Gary Richards (“Richards”) entered into a consumer \nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \nEnergy”). Richards stayed on this contract for fifteen months. The contract \ninitially guaranteed Richards a fixed electricity rate that was 10% lower than the \nstate‐approved electricity rate. Consistent with the terms of the contract, \nRichards’s fixed‐rate plan was converted into a variable rate plan after the first \ntwelve months. Direct Energy then continued supplying electricity to Richards \nat a new variable rate for three months, at two cents more per kilowatt hour \n\n 1 \n\n(“kWh”) than the state‐approved rate. The contract stated that this variable rate \nwould be calculated to reflect “business and market conditions.” After \nterminating his contract, Richards sued Direct Energy, alleging breach of contract, \ndeceptive and unfair trade practices, and unjust enrichment. The United States \nDistrict Court for the District of Connecticut (Bolden, J.) dismissed several of \nRichards’s claims, and granted summary judgment to Direct Energy on his \nremaining claims. The judgment of the district court is AFFIRMED. \n \n JUDGE POOLER concurs in part and dissents in part in a separate opinion. \n \nFOR PLAINTIFF‐APPELLANT: ROBERT A. IZARD (Craig A. Raabe, on the \n brief), Izard, Kindall & Raabe LLP, West \n Hartford, CT, for Gary W. Richards. \n \nFOR DEFENDANT‐APPELLANT: MICHAEL D. MATTHEWS (James M. \n Chambers, Hutson B. Smelley, Robert P. \n Debelak III, on the brief), McDowell & \n Hetherington LLP, Houston, TX, for Direct \n Energy Services, LLC. \n \nDEBRA ANN LIVINGSTON, Circuit Judge: \n\n Plaintiff‐Appellant Gary W. Richards (“Richards”) entered into an \n\nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \n\nEnergy”). The contract provided that, for the first twelve months, Direct Energy \n\nwould guarantee Richards a fixed electricity rate that was 10% below the state‐\n\napproved rate. But if Richards did not leave the contract at the end of that year, \n\nDirect Energy would begin charging him a new variable rate. The variable rate, \n\naccording to the contract, would be set on a month to month basis according to \n\n\n\n\n 2 \n\nDirect Energy’s “discretion” and would reflect “business and market conditions.” \n\nJ.A. 157. Richards was free to terminate the contract at any time without paying \n\na penalty. After twelve months on the discounted fixed rate plan, Richards began \n\npaying the variable rate. During this time, the variable rate was two cents more \n\nper kilowatt hour (“kWh”) than the state‐approved rate. Richards switched \n\nelectricity providers after fifteen months with Direct Energy (twelve on the \n\ndiscounted fixed rate, three on the variable rate), complaining that the variable \n\nrate was set too high. He then sued Direct Energy for breach of contract, \n\ndeceptive and unfair trade practices, and unjust enrichment, and also sought to \n\nrepresent a class of all Direct Energy customers who paid the variable rate in \n\nConnecticut and Massachusetts. The district court dismissed several of his \n\nclaims and granted summary judgment to Direct Energy as to the rest. \n\n This is the latest in a line of class actions challenging consumer gas and \n\nelectricity rates in the wake of market deregulation.1 Richards’s principal claim \n\nis that Direct Energy breached its contract with Richards and violated state unfair \n\nand deceptive trade practices law by not pegging its variable rate to Direct \n\n\n 1 See, e.g., Hamlen v. Gateway Energy Servs. Corp., No. 16 Civ 3526, 2017 WL 6398729, \nat *8 (S.D.N.Y. Dec. 8, 2017); Edwards v. N. Am. Power & Gas, LLC, 120 F. Supp. 3d 132, 142 \n(D. Conn. 2015); Yang Chen v. Hiko Energy, LLC, No. 14 CV 1771, 2014 WL 7389011, at *4 \n(S.D.N.Y. Dec. 29, 2014). \n\n\n 3 \n\nEnergy’s procurement costs. We disagree. By the contract’s plain terms, Direct \n\nEnergy promised that the variable rate would be set in its discretion and that it \n\nwould reflect “business and market conditions,” a phrase which encompasses \n\nmore than just procurement costs. Accordingly, the judgment below is \n\nAFFIRMED. \n\n BACKGROUND \n\n I. Factual Background2 \n\n A \n\n This is a contract dispute set in the context of Connecticut’s electricity \n\nmarket. ISO New England, Inc. is responsible for administering a market in \n\nwhich local electricity distribution companies bid on electricity supplied by power \n\ngenerators. In Connecticut, two electric distribution companies, Eversource and \n\nUnited Illuminating, maintain monopoly control over electricity distribution \n\nsystems within set geographic zones and are ultimately responsible for \n\ndistributing electricity to consumers in those zones. Consumers may enter into \n\n\n 2 The facts outlined below primarily relate to the claims dismissed on summary \njudgment and are therefore either undisputed or presented in the light most favorable to \nRichards. See Raspardo v. Carlone, 770 F.3d 97, 111 (2d Cir. 2014). As for Richards’s \nclaims dismissed on the pleadings, we accept all factual allegations as true and draw all \nreasonable inferences in Richards’s favor. See Trs. of Upstate N.Y. Eng’rs Pension Fund v. \nIvy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). \n\n\n 4 \n\nelectricity contracts with either company directly. All these contracts offer \n\nelectricity at “Standard Service Rates,” which Connecticut’s Public Utilities \n\nRegulatory Authority (“PURA”) approves in advance. See Conn. Gen. Stat. § 16‐\n\n19(a). \n\n In 2000, Connecticut deregulated its consumer electricity market. \n\nConsumers may still purchase electricity from either Eversource or United \n\nIlluminating at their PURA‐approved Standard Service Rates (effectively a public \n\noption), but they may instead choose to contract with one of the forty PURA‐\n\nlicensed retail electricity suppliers (the private market), all of which piggyback on \n\nEversource and United Illuminating’s electricity distribution systems. These \n\nsuppliers purchase power that they then sell to consumers at market‐based, \n\nunregulated rates. Many offer variable prices, promotional rates, guarantees that \n\nenergy will come from renewables, and incentives like cash rebates and gift cards. \n\nSome suppliers also include “guaranteed savings” provisions in their contracts, \n\nwhich ensure that consumers will save money compared to the Standard Service \n\nRates. In general, the Standard Service Rates tend to adjust more slowly in \n\nresponse to changes in the wholesale electricity market than market rates. \n\n\n\n\n 5 \n\n Although PURA does not regulate suppliers’ rates, it regulates the suppliers \n\nthemselves. PURA licenses all private electricity suppliers, id. § 16‐245(a)–(b), \n\nand reviews these licenses every five years, Conn. Agency Regs. § 16‐245‐2(f). It \n\nalso polices how suppliers word their consumer contracts. Among other things, \n\nthese contracts must contain: \n\n “all material terms of the agreement”; \n\n “a clear and conspicuous statement explaining the rates that [ea]ch \n customer will be paying, including the circumstances under which the \n rates may change”; \n\n “a clear and conspicuous statement . . . describing any penalty for early \n termination of such contract”; and \n\n “a statement that provides specific directions to the customer as to how \n to compare the price term in the contract to the customer’s existing . . . \n charge on the electric bill and how long those rates are guaranteed.” \n\nConn. Gen. Stat. § 16‐245o(f)(2). Finally, Connecticut’s state government helps \n\nmaintain an electricity‐comparison website that lists available electricity suppliers \n\nand compares electricity suppliers’ rates and other relevant contract terms to each \n\nother and to the default Standard Service Rates.3 \n\n\n\n\n See “Compare Generation Rates,” ENERGIZE CT, https://www.energizect.com/ \n 3\n\ncompare‐energy‐suppliers (last visited July 4, 2018). \n\n\n 6 \n\n B \n\n Direct Energy is a private electricity supplier that offers several different \n\nelectricity plans to consumers in the private market. Some of its plans come with \n\nadd‐ons, like an Internet‐connected Nest thermostat, a home warranty, or a \n\nguarantee that 100% of the energy will come from “green” sources. During the \n\ntime at issue in this case, all of Direct Energy’s plans were “Evergreen plans,” \n\nmeaning that Direct Energy would charge a fixed rate for a set time (between \n\ntwelve and thirty‐six months), and at the end of that period, if the customer took \n\nno action, Direct Energy would charge a variable rate that could change each \n\nmonth. \n\n Direct Energy balanced several factors when setting the variable rate. In \n\ngeneral, Direct Energy targeted a certain profit margin based on its own cost of \n\nenergy while not setting the rate so high that customers would leave. \n\nCompetitors’ prices, market‐share objectives, supply hedging strategies, \n\nlegislative and regulatory requirements, and market risk helped inform these \n\nfactors. Direct Energy’s variable rate was higher than its fixed rate, so when a \n\ncustomer switched to the variable rate, Direct Energy often reduced the customer’s \n\n\n\n\n 7 \n\nvariable rate for the first few months to smooth the transition. At one point, more \n\nthan half of Direct Energy’s Connecticut customers were paying the variable rate. \n\n In March 2012, Gary Richards signed a two‐page electricity contract with \n\nDirect Energy guaranteeing him a fixed electricity rate of 7.45 cents per kWh for \n\none year. This was an Evergreen plan, so after the year expired, Richards’s \n\n“service [would] automatically continue each month without additional notice, \n\nand [Richards] [would] pay a variable rate per kWh, which [could] be higher or \n\nlower each monthly billing cycle.” J.A. 157. The contract further stated: \n\n After the Initial Term and during the Renewal Period, the rate for electricity \n will be variable each month at Direct Energy’s discretion. The rate may be \n higher or lower each month based upon business and market conditions. \n \nId. We refer to this as “the Evergreen clause.” Richards could cancel the \n\ncontract “at any time without an early cancellation fee.” Id. These terms were \n\nall included on the first page of the contract, and PURA had earlier determined \n\nthat this contract was sufficiently clear and fulfilled all the requirements mandated \n\nby Conn. Gen. Stat. § 16‐245o(f)(2). \n\n After using the Connecticut government’s electricity‐comparison website \n\nmentioned above, Richards chose Direct Energy because it promised “the best \n\nfixed rate that [he] could get at the time” and no termination fee. J.A. 121. He \n\n\n\n\n 8 \n\ndid not consider any other factors, nor did he have any expectations about how \n\nthe variable rate would work. But he still paid attention to his electricity rate \n\nduring the fixed‐rate period and compared rates on the Connecticut electricity \n\nwebsite several times. At one point, he tried to switch electricity providers to get \n\na better fixed rate, but the new provider never followed up on his inquiries. \n\n Richards ultimately stayed on the Direct Energy contract through the full \n\ntwelve months, did not opt out at the end, and so was rolled over onto the variable \n\nrate, which he paid for three months starting in April 2013. For those three \n\nmonths, the variable rate stayed constant at 10.64 cents per kwH, or 2.36 cents per \n\nkWh higher than Eversource’s PURA‐approved Standard Service Rate during this \n\ntime.4 There is no evidence in the record that Direct Energy’s variable rate was \n\nhigher than the rates charged by Direct Energy’s market competitors. Direct \n\nEnergy’s procurement costs were also largely constant during this three‐month \n\nperiod. \n\n In August 2013, Richards noticed that his electricity bills had risen \n\ncompared to previous months, so he canceled his contract with Direct Energy and \n\nswitched electricity providers. Over the course of the fixed‐rate period, Richards \n\n\n\n 4 The record does not disclose United Illuminating’s Standard Service Rate. \n\n\n 9 \n\npaid $114 less than he would have under Eversource’s Standard Service Rate. \n\nBut his three months on the variable rate eliminated those savings. In total, for \n\nthe fifteen months he signed with Direct Energy, Richards, a former Vice President \n\nfor AT&T, paid $25 more than he would have under the Standard Service Rate — \n\nor about $1.67 per month extra. \n\n Richards submitted a letter to PURA complaining about Direct Energy in \n\nMarch 2014. Shortly after, Robert Izard, an attorney who has filed lawsuits like \n\nthis one against other electricity suppliers, see, e.g., Edwards v. N. Am. Power & Gas, \n\nLLC, 120 F. Supp. 3d 132 (D. Conn. 2015), contacted Richards and encouraged him \n\nto sue. Richards then retained Izard to represent him in this case. \n\n II. Procedural History \n\n In November 2014, Richards sued Direct Energy in the United States District \n\nCourt for the District of Connecticut (Bolden, J.) alleging breach of contract, unjust \n\nenrichment, and unfair and deceptive trade practices under the Connecticut \n\nUnfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42‐110b(a), and the \n\nMassachusetts Regulation of Business Practices for Consumers’ Protection Act, \n\nMass. Gen. Laws ch. 93A, § 1. He sought to certify a class of similarly situated \n\nDirect Energy customers who lived in Connecticut and Massachusetts. \n\n\n\n\n 10 \n\n Most of his allegations concerned Direct Energy’s variable rate beginning in \n\nthe winter of 2013–2014 — well after Richards left Direct Energy. Starting in that \n\n(unusually cold) winter, the variable rate jumped by about 50% and stayed level \n\nthrough August 2015. Generally, the variable rate was about 75% higher than \n\nDirect Energy’s procurement costs, which fluctuated significantly, but the variable \n\nrate was lower than its procurement costs during the 2013–2014 winter. Direct \n\nEnergy thus kept variable rates steady through 2014 (and into 2015) to recover \n\nfrom its winter losses. Many other electricity companies never recovered from \n\ntheir winter losses and went out of business. \n\n The district court dismissed Richards’s Massachusetts state law and \n\nConnecticut unjust enrichment claims on August 4, 2015. See Richards v. Direct \n\nEnergy Servs., LLC, 120 F. Supp. 3d 148 (D. Conn. 2015). Because Richards is a \n\nConnecticut resident who was injured in Connecticut and not Massachusetts, the \n\ncourt concluded that Richards lacked Article III standing to bring an unfair and \n\ndeceptive trade practices claim under Massachusetts law. Richards also failed to \n\nstate a claim for unjust enrichment because “[a] plaintiff . . . cannot plead a claim \n\nof unjust enrichment if he also pleads the existence of an express contract,” as \n\nRichards had. Id. at 165. \n\n\n\n\n 11 \n\n During discovery, the parties produced dueling expert witness reports. As \n\nrelevant here, Richards’s experts, economists who had been retained to produce \n\nexpert witness reports in prior class actions like this one, opined that Direct \n\nEnergy’s variable rate should be “consistent with” Direct Energy’s procurement \n\ncosts, “plus an appropriate margin to cover the legitimate costs and risks of \n\nsupplying Variable Rate customers.” Confidential App. 44. At the same time, \n\nthe experts made clear that they did not “offer an opinion on” how the Evergreen \n\nclause should be interpreted. Id. at 374; see also id. at 164 (“I’m not the expert on, \n\nyou know, legal meaning of business and market conditions. But as an \n\neconomist, you know, I do have an opinion professionally . . . .”). Their \n\nconclusions were purportedly based on, as one put it, “[their] personal economic \n\nbelief of what is reasonable,” given their knowledge of the electricity market. \n\nId. at 374. \n\n The district court granted summary judgment to Direct Energy on \n\nRichards’s remaining claims on March 31, 2017. See Richards v. Direct Energy \n\nServs., LLC, 246 F. Supp. 3d 538 (D. Conn. 2017). Direct Energy was entitled to \n\nsummary judgment on Richards’s contract claim, the district court concluded, \n\nbecause Richards had not “put forth sufficient evidence to create a material factual \n\n\n\n\n 12 \n\ndispute about Direct Energy’s bad faith,” as required for his claim based on an \n\nalleged breach of the covenant of good faith and fair dealing. Id. at 557. \n\n The district court also granted summary judgment to Direct Energy on \n\nRichards’s unfair and deceptive trade practices claims under Connecticut law. \n\nRichards had argued that the Evergreen clause was deceptive because a reasonable \n\nconsumer would interpret it to mean that Direct Energy would charge consumers \n\nits procurement costs, plus a fixed profit margin. The district court disagreed and \n\nheld that the clause plainly gave Direct Energy “discretion to set a profit margin \n\nof its choosing when determining variable rates.” Id. at 552. Next, Richards \n\ncontended that his contract with Direct Energy failed adequately to explain “the \n\ncircumstances under which the rates [could] change,” which if true, would be a \n\nper se unfair trade practice. Id. at 555 (quoting Conn. Gen. Stat. § 16–245o(f)(2)), \n\nsee also Conn. Gen. Stat. § 16–245o(j). The district court rejected this argument \n\nbecause PURA had approved the contract language at issue. Finally, Richards \n\nargued that Direct Energy set the variable rate so high as to be “unfair” under \n\nConnecticut law. Not so, the district court held, because “pricing decisions \n\nalone” do not constitute unfair trade practices. Id. at 554. \n\n\n\n\n 13 \n\n Finally, the district court dismissed Richards’s motion for class certification \n\nas moot because it had dismissed or granted summary judgment on all of \n\nRichards’s claims. Final judgment was entered on March 31, 2017. \n\n DISCUSSION \n\n On appeal, Richards challenges the district court’s March 31, 2017 grant of \n\nsummary judgment to Direct Energy on his contract and Connecticut unfair and \n\ndeceptive trade practices claims, and its August 4, 2015 dismissal of his unjust \n\nenrichment and Massachusetts unfair trade practices claims. For the reasons that \n\nfollow, we AFFIRM the judgment of the district court. \n\n I \n\n “We review a grant of summary judgment de novo, examining the evidence \n\nin the light most favorable to, and drawing all inferences in favor of, the non‐\n\nmovant.” Blackman v. New York City Transit Auth., 491 F.3d 95, 98 (2d Cir. 2007) \n\n(per curiam) (quoting Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003)). \n\n“Summary judgment is appropriate only if it can be established ‘that there is no \n\ngenuine issue as to any material fact and that the moving party is entitled to \n\njudgment as a matter of law.’” Sheppard, 317 F.3d at 354–55 (quoting Fed. R. Civ. \n\nP. 56(a)). \n\n\n\n\n 14 \n\n A \n\n Richards argues that Direct Energy breached its contract with him because \n\nit violated the implied covenant of good faith and fair dealing. Under \n\nConnecticut law, the implied covenant attaches to every contract and “requir[es] \n\nthat neither party do anything that will injure the right of the other to receive the \n\nbenefits of the agreement.” Renaissance Mgmt. Co. v. Connecticut Hous. Fin. Auth., \n\n915 A.2d 290, 297–98 (Conn. 2007) (quoting De La Concha of Hartford, Inc. v. Aetna \n\nLife Ins. Co., 849 A.2d 382, 388 (Conn. 2004)). The covenant is thus “not implicated \n\nby conduct that does not impair contractual rights.” Capstone Bldg. Corp. v. Am. \n\nMotorists Ins. Co., 67 A.3d 961, 987 (Conn. 2013). \n\n To establish a breach of the implied covenant, the plaintiff must also show \n\nthat the defendants’ allegedly wrongful acts were “taken in bad faith.” De La \n\nConcha, 849 A.2d at 388 (quoting Alexandru v. Strong, 837 A.2d 875, 883 (Conn. App. \n\nCt. 2004)). “Bad faith in general implies both actual or constructive fraud, or a \n\ndesign to mislead or deceive another, or a neglect or refusal to fulfill some duty or \n\nsome contractual obligation, not prompted by an honest mistake as to one’s rights \n\nor duties, but by some interested or sinister motive.” Id. (quoting Habetz v. \n\nCondon, 618 A.2d 501, 504 (Conn. 1992)). Because this is a high bar, “[t]he \n\n\n\n\n 15 \n\ncovenant will be breached only in a narrow range of cases.” Sec. Plans, Inc. v. \n\nCUNA Mut. Ins. Soc., 769 F.3d 807, 817 (2d Cir. 2014); see also Restatement (Second) \n\nof Contracts § 205 cmt. e (Am. Law Inst. 1981) (listing, as paradigmatic examples \n\nof such breaches, “harassing demands for assurances of performance, rejection of \n\nperformance for unstated reasons, willful failure to mitigate damages, and abuse \n\nof a power to determine compliance or to terminate the contract”). \n\n Richards’s contention that Direct Energy breached the implied covenant of \n\ngood faith and fair dealing ultimately rests on his interpretation of the Evergreen \n\nclause. Again, the clause states: \n\n After the Initial Term and during the Renewal Period, the rate for electricity \n will be variable each month at Direct Energy’s discretion. The rate may be \n higher or lower each month based upon business and market conditions. \n \nJ.A. 157. In Richards’s view, “a reasonable consumer would understand [this] \n\ncontract language to mean that [the] variable rate[] would fluctuate with [Direct \n\nEnergy’s] procurement costs.” Pl.‐Appellant Br. 54. And because the variable \n\nrate stayed constant while procurement costs fluctuated from the winter of 2013–\n\n2014 through August 2015, Direct Energy “ignored the language of the contract.” \n\nId. at 55. Richards contends that, at minimum, his two experts attested that a \n\nreasonable consumer would interpret the Evergreen clause this way, which raises \n\n\n\n\n 16 \n\na plausible question of fact as to the clause’s appropriate interpretation. He also \n\nmaintains that Direct Energy acted in bad faith because Direct Energy set its \n\nvariable rates too high, and “lure[d] new customers into enrolling . . . by offering \n\nlow fixed teaser rates for a set period of time.” Id. at 20. For the following \n\nreasons, we disagree. \n\n Direct Energy did not “evade[] [the contract’s] spirit” or frustrate Richards’s \n\n“justified expectations.” Landry v. Spitz, 925 A.2d 334, 345 (Conn. App. Ct. 2007). \n\nThe Evergreen clause states that Direct Energy had “discretion” to set the variable \n\nrate “based upon business and market conditions.” J.A. 157. The record reflects \n\nthat Direct Energy set the variable rate to achieve a target profit margin, match \n\ncompetitors’ prices, and reduce customer losses, among other objectives. As a \n\nmatter of plain meaning, these sorts of considerations constitute “business and \n\nmarket conditions.” See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining \n\n“business” as “[a] commercial enterprise carried on for profit” and “market” as “the \n\nextent of economic demand” (emphasis added)); see also U.C.C. § 2‐723(1) (Am. Law \n\nInst. & Unif. Law Comm’n 2017) (explaining that, in calculating damages in the \n\ncontracts context, “market price . . . shall be determined according to the \n\n[prevailing] price of such goods” (emphasis added)). The Evergreen clause in no \n\n\n\n\n 17 \n\nway states or implies that such considerations are improper, nor does it suggest \n\nthat the variable rate bears a direct relationship to Direct Energy’s procurement \n\ncosts. \n\n Richards’s experts’ testimony adds nothing to his breach of contract claim. \n\nThese experts opined only on what factors the variable rate should reflect, in their \n\nview, while declining to “offer an opinion on” how the Evergreen clause should \n\nbe interpreted. Confidential App. 374; see also id. at 164 (“I’m not the expert on, \n\nyou know, legal meaning of business and market conditions. But as an \n\neconomist, you know, I do have an opinion professionally . . . .”). And the \n\nexperts’ interpretation of the Evergreen clause would be irrelevant even if they had \n\nopined on its legal meaning because “the construction of unambiguous contract \n\nterms is strictly a judicial function.” 31A Am. Jur. 2d Expert and Opinion Evidence \n\n§ 294 (2018) (explaining that, “unless the words or phrases [in a contract] . . . are \n\nterms of art,” expert testimony “regarding the meanings of contractual provisions \n\n\n\n\n 18 \n\n[is] irrelevant and hence inadmissible”).5 Courts across the country have thus \n\nrightly dismissed arguments like Richards’s even at the pleadings phase.6 \n\n To be sure, even though the Evergreen clause gave Direct Energy discretion \n\nin setting the variable rate, Direct Energy was obliged to “exercise that discretion \n\n\n 5 For the same reason, the dissent’s observation that ambiguous contract language \ncreates a jury question regarding the parties’ intent, Dissenting Op. at 12, misses the point. \nIn the context of Richards’s claim, the Evergreen clause is not ambiguous. Richards \nhimself testified that even he did not interpret the contract as he would now have us read \nit. See J.A. 135 (agreeing that Direct Energy had “[p]retty much” complete discretion in \ndeciding how to set its variable rate). While there might be some pricing considerations \nthat would fall outside the “business and market conditions” that Direct Energy was \nexplicitly authorized to consider, nothing in that phrase suggests the specific limitation \nthat Richards now argues for. The dissent’s contention that a “reasonable juror . . . could \nfind that Direct Energy tied its price‐setting discretion to its cost of doing business,” \nDissenting Op. at 12–13, is patently incorrect, so long as jurors are constrained by law, and \nnot permitted to invent absent contract terms out of thin air. \n 6 See Orange v. Starion Energy PA, Inc, No. CV 15‐773, 2016 WL 1043618, at *4 (E.D. \nPa. Mar. 16, 2016), aff’d, 711 F. App’x 681 (3d Cir. 2017); Windley v. Starion Energy, Inc., No. \n14‐CV‐9053, 2016 WL 197503, at *2 (S.D.N.Y. Jan. 8, 2016), appeal withdrawn, No. 16‐320 \n(2d Cir. 2016); Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *4 \n(N.D. Ill. May 22, 2015), rev’d and vacated in part on other grounds, 847 F.3d 875 (7th Cir. \n2017); Urbino v. Ambit Energy Holdings, LLC, No. Civ. 14‐5184, 2015 WL 4510201, at *4–5 \n(D.N.J. July 24, 2015); Faistl v. Energy Plus Holdings, LLC, No. Civ. 12‐2879, 2012 WL \n3835815, at *5–6 (D.N.J. Sept. 4, 2012). \n Moreover, because there is no evidence in the record that Direct Energy \nsupplemented the terms of its written contract with additional representations to \nRichards, this case is different from those where defendants are alleged to have \nmisrepresented to the plaintiffs that the “business and market conditions” clauses would \nguarantee below‐market prices. See Todd v. XOOM Energy Maryland, LLC, No. GJH‐15‐\n0154, 2017 WL 667198, at *8 (D. Md. Feb. 16, 2017); Melville v. Spark Energy, Inc., No. 15‐\n8706, 2016 WL 6775635, at *4 (D.N.J. Nov. 15, 2016); Landau v. Viridian Energy PA LLC, 223 \nF. Supp. 3d 401, 418–19 (E.D. Pa. 2016); Mirkin v. Viridian Energy, Inc., No. 3:15‐CV‐1057, \n2016 WL 3661106, at *6–7 (D. Conn. July 5, 2016). \n\n\n 19 \n\nin good faith.” 23 Williston on Contracts § 63:22 (4th ed. 2018). Richards has \n\ncome forth with no evidence to suggest that it did not. Although Richards \n\ncharges, for instance, that Direct Energy’s variable rate was “too high,” there is no \n\nevidence that it was any higher than its competitors’ rates. See Marcus Dairy, Inc. \n\nv. Rollin Dairy Corp., No. 05‐cv‐589, 2008 WL 4425954, at *9 (D. Conn. Sept. 24, 2008) \n\n(“To determine if a price is commercially reasonable[] it must be compared to the \n\nrange of other prices in the market.”). The factors influencing the variable rate \n\n(minimizing customer losses, reaching a target profit margin) are ordinary \n\nbusiness considerations. See id. at *7 (stating that merchants act in good faith \n\nwhen setting open price terms if they adhere to “reasonable commercial standards \n\nof fair dealing in the trade” (quoting U.C.C. § 2–305 cmt. 3 (Am. Law Inst. & Unif. \n\nLaw Comm’n 2017))). And Richards in fact seems to concede that all Connecticut \n\nprivate electricity suppliers “engag[e] in similar . . . pricing behavior,” which he \n\ninsistently labels “improper” while offering no coherent explanation (much less \n\nevidence) as to why this is so. Reply Br. 17 n.12. \n\n Richards counters that Direct Energy must have abused its discretion \n\nbecause the variable rate was higher than the PURA‐approved Standard Service \n\nRate. In his view, the Standard Service Rates, rather than Direct Energy’s private \n\n\n\n\n 20 \n\ncompetitors’ rates, are the proper comparators because Connecticut’s private \n\nelectricity suppliers are all “corrupt.” Reply 17 n.12. But it is worth pausing to \n\nconsider the implications of Richards’s argument. If we were to hold private \n\nelectricity suppliers liable for departing from the Standard Service Rates, we \n\nwould in effect make those PURA‐approved rates binding on private electricity \n\nsuppliers like Direct Energy. Yet the entire point of electricity deregulation was \n\nto allow the market, rather than PURA, to determine rates. 7 Richards’s near‐\n\nfrivolous contract claim provides no basis on which a court is authorized to \n\noverrule this policy choice. \n\n Richards’s accusation that Direct Energy violated the implied covenant of \n\ngood faith by “luring new customers . . . by offering low fixed teaser rates,” Pl.‐\n\nAppellant Br. 20, is equally unavailing. Richards may find this practice \n\nobjectionable, but he received exactly what he bargained for: after paying a fixed \n\nrate below the PURA‐approved Standard Service Rates for a fixed time, Richards \n\nwould pay a variable rate set at Direct Energy’s discretion. See 23 Williston on \n\nContracts § 63:22 (4th ed. 2018) (“[T]here can be no breach of the implied promise \n\n\n\n 7 Indeed, if Richards wanted to pay less than he would have paid under the \nStandard Service Rate, he could have chosen a contract with a “guaranteed savings” \nclause that promised just that. \n\n\n 21 \n\nor covenant of good faith and fair dealing where the contract expressly permits \n\nthe actions being challenged, and the defendant acts in accordance with the \n\nexpress terms of the contract.”). Richards voluntarily chose this contract after \n\nconsidering more than forty competitor options because he thought it was the best \n\navailable. He cannot allege breach of contract where, as here, Direct Energy \n\ndelivered to him precisely what he purchased. \n\n Richards’s contract claim is thus without merit. But even if this were not \n\nthe case, Richards still could not prevail. His argument is largely predicated on \n\nthe theory that Direct Energy unjustifiably unmoored its variable rate from Direct \n\nEnergy’s procurement costs. But Richards focuses exclusively on Direct Energy’s \n\npricing practices in 2014 and 2015, yet Richards left Direct Energy in 2013. For \n\nthe three months that Richards paid it, the variable rate and Direct Energy’s costs \n\nstayed constant, and the variable rate was only 2.36 cents per kWh higher than \n\nEversource’s PURA‐approved Standard Service Rate. Cf. 14 David M. Stahl & \n\nLisa M. Cipriano, Bus. & Com. Litig. Fed. Cts. § 143:35 (4th ed. 2017) (“[A] filed and \n\napproved rate is unassailable in judicial proceedings brought by customers.”). \n\nRichards would thus not be a proper plaintiff even if his legal theory had any \n\n\n\n\n 22 \n\nmerit, which it does not. We therefore affirm the district court’s grant of \n\nsummary judgment to Direct Energy on Richards’s contract claim. \n\n B \n\n The Connecticut Unfair Trade Practices Act (“CUTPA”) prohibits “unfair \n\nmethods of competition and unfair or deceptive acts or practices in the conduct of \n\nany trade or commerce.” Conn. Gen. Stat. § 42‐110b(a). Under CUTPA, “unfair \n\nmethods of competition,” “unfair . . . acts,” and “deceptive acts” are distinct \n\ncategories of wrongful conduct. See 12 Robert M. Langer, et al., Conn. Prac., Unfair \n\nTrade Practices § 2.3 (2017). Richards argues that Direct Energy’s variable rate \n\npricing was (1) deceptive, (2) a per se violation of CUTPA, and (3) unfair. \n\nRichards’s CUTPA claims are almost entirely duplicative of his contract claim. \n\nThey are also without merit, and we affirm the district court’s grant of summary \n\njudgment as to these claims. \n\n 1 \n\n “An act or practice is deceptive” under CUTPA if the defendant makes a \n\nmaterial representation or omission likely to mislead consumers who “interpret \n\nthe message reasonably under the circumstances.” Southington Sav. Bank v. \n\nRodgers, 668 A.2d 733, 736 (Conn. App. 1995) (quoting Caldor, Inc. v. Heslin, 577 \n\n\n\n\n 23 \n\nA.2d 1009, 1013 (Conn. 1990)). “The deception standard is objective in nature,” \n\nand a representation is deceptive only if it is “‘likely’ to mislead rather than merely \n\n[has] the ‘tendency or capacity’ to do so.” Langer, et al., supra, § 2.3 (quoting \n\nMatter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 127 (1984) (Pertschuk, Comm’r, \n\nconcurring in part and dissenting in part)). A “failure to disclose can be \n\ndeceptive only if, in light of all the circumstances, there is a duty to disclose.” \n\nNormand Josef Enters., Inc. v. Connecticut Nat’l Bank, 646 A.2d 1289, 1307 (Conn. \n\n1994). \n\n Richards’s deception claim is identical to his contract claim. He contends \n\nthat “reasonable consumers” would likely interpret the Evergreen clause to mean \n\nthat the variable rate would reflect “the costs of procuring power . . . plus an \n\nappropriate margin to cover the legitimate costs and risks of supplying variable \n\nrate customers.” Reply Br. 4, 6 (quoting Confidential App. 44). But as explained \n\nabove, the contract unambiguously allowed Direct Energy to set the variable rate \n\nthe way it did. See Murphy v. Provident Mut. Life Ins. Co. of Philadelphia, 923 F.2d \n\n923, 929–30 (2d Cir. 1990) (holding, in a case predicated on deceptive advertising, \n\nthat “[n]o deception can exist where, as here, the parties’” representations are \n\n“clear[]”); see also Hinchliffe v. Am. Motors Corp., 471 A.2d 980, 988 (Conn. Super. \n\n\n\n\n 24 \n\nCt. 1982) (declining “to speculate that the public will place a patently absurd \n\ninterpretation” on a representation). Richards is also wrong, for the same reasons \n\ngiven above, when he claims that his experts’ views about the Evergreen clause \n\nraise a question of fact on this issue. Slapping the phrase “reasonable consumer” \n\ninto his argument does not change our earlier analysis in any way. See Fink v. \n\nTime Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (“[A] court may determine as a \n\nmatter of law that an allegedly deceptive [representation] would not have misled \n\na reasonable consumer.”). \n\n Accepting Richards’s argument to the contrary would mean, in effect, that \n\nif Direct Energy wished to retain the discretion in a contract to set its variable rate \n\nbased on a range of business and market conditions, it was required to disclose \n\nevery factor influencing that variable rate. But CUTPA imposes no such duty. \n\nSee, e.g., Kenney v. Healey Ford‐Lincoln‐Mercury, Inc., 730 A.2d 115, 117 (Conn. App. \n\nCt. 1999) (holding that it is not a deceptive trade practice to fail to make certain \n\ndisclosures unless the defendant has a preexisting duty to do so). Connecticut, \n\nto be sure, requires consumer electricity contracts to explain “the rates that [] \n\ncustomer[s] will be paying, including the circumstances under which the rates \n\nmay change.” Conn. Gen. Stat. § 16‐245o(f)(2). But PURA determined that the \n\n\n\n\n 25 \n\nEvergreen clause met this standard when it renewed Direct Energy’s license. \n\nRequiring Direct Energy to define “business and market conditions” in greater \n\ndetail would override PURA’s certification. Cf. Mead v. Burns, 509 A.2d 11, 19 \n\n(Conn. 1986) (holding that CUTPA claims “that build[] upon the public policy \n\nembodied in specific statutory provisions . . . must be consistent with the \n\nregulatory principles established by the underlying statutes”). \n\n 2 \n\n Richards’s argument that Direct Energy’s variable rate pricing constituted a \n\nper se violation of CUTPA is equally unavailing. As discussed above, Connecticut \n\nrequires that “[e]ach contract for electric generation services [] contain all material \n\nterms of the agreement,” including “a clear and conspicuous statement explaining \n\nthe rates that [each] consumer will be paying” and “the circumstances under \n\nwhich the rates may change.” Conn. Gen. Stat. § 16‐245o(f)(2). An electric \n\ncompany that violates this provision commits a per se unfair or deceptive trade \n\npractice under CUTPA. Id. § 16‐245o(j). \n\n Richards contends that Direct Energy violated § 16‐245o(j) because it \n\n“misrepresented that it set its variable rate based on ‘business and market \n\nconditions’ when it did not.” Pl.‐Appellant Br. 46. But Richards assumes, yet \n\n\n\n\n 26 \n\nagain, that the Evergreen clause misrepresented Direct Energy’s pricing practices. \n\nWe have already rejected that view twice in this opinion. We thus affirm the \n\ndistrict court’s grant of summary judgment on Richards’s per se CUTPA claim. \n\n 3 \n\n Finally, Richards’s claim that Direct Energy’s variable rate pricing \n\nconstituted an unfair trade practice under CUTPA is also without merit. A trade \n\npractice is unfair under CUTPA if it (1) falls within “the penumbra of some \n\ncommon law, statutory, or other established concept of unfairness,” (2) is \n\n“immoral, unethical, oppressive, or unscrupulous,” or (3) “causes substantial \n\ninjury to consumers . . . .” Votto v. Am. Car Rental, Inc., 871 A.2d 981, 984–85 \n\n(Conn. 2005). The “substantial injury to consumers” prong covers conduct that \n\nis “substantial,” is not “outweighed by any countervailing benefits,” and causes \n\n“an injury that consumers themselves could not reasonably have avoided.” A‐G \n\nFoods, Inc. v. Pepperidge Farm, Inc., 579 A.2d 69, 77 (Conn. 1990) (emphasis \n\nremoved) (quoting Letter from Federal Trade Commission to Senators Ford and \n\nDanforth (Dec. 17, 1980)). \n\n Richards’s contentions do not come close to meeting this standard. Run‐\n\nof‐the‐mill statutory violations, torts, and contract breaches do not constitute \n\n\n\n\n 27 \n\nunfair trade practices. See Jacobs v. Healey Ford‐Subaru, Inc., 652 A.2d 496, 506 \n\n(Conn. 1995) (explaining that “the violation of a consumer statute” is not “an \n\nautomatic violation of CUTPA” unless a statute “expressly” makes it so); Ventres \n\nv. Goodspeed Airport, LLC, 881 A.2d 937, 970 (Conn. 2005) (declining to “convert \n\nevery trespass claim involving business property into a CUTPA claim”); \n\nMetromedia Energy, Inc. v. Mansei, Inc., No. CV136041399S, 2014 WL 7495054, at *4 \n\n(Conn. Super. Ct. Nov. 3, 2014) (holding that “an ordinary breach of the contract” \n\nwas not unfair under CUTPA). CUTPA thus prohibits only certain particularly \n\nabusive commercial practices. See, e.g., A‐G Foods, 579 A.2d at 77 n.9 (recognizing \n\nthe core of unfair practices as: “(1) withholding material information; (2) making \n\nunsubstantiated advertising claims; (3) using high‐pressure sales techniques; and \n\n(4) depriving consumers of various post‐purchase remedies” (quoting Am. Fin. \n\nServs. Ass’n v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985)); Votto, 871 A.2d at 985 \n\n(holding that charging credit cards without the cardholder’s authorization is \n\nunfair under CUTPA). \n\n The crux of Richards’s unfairness theory is, once more, his contention that \n\nDirect Energy breached the contract by failing to tie its variable rate to “business \n\nand market conditions,” which he interprets to mean procurement costs. See Pl.‐\n\n\n\n\n 28 \n\nAppellant Br. 28 (“Richards’[s] claim is that [Direct Energy] acted in an ‘unfair’ \n\nmanner by setting variable rates that violate the terms of its contract and do not \n\nfluctuate with ‘business and market conditions.’”). But a “simple contract breach \n\nis not sufficient to establish a violation of CUTPA, particularly where the count \n\nalleging CUTPA simply incorporates by reference the breach of contract claim.” \n\nBoulevard Assocs., 72 F.3d at 1039 (quoting Chaspek Mfg. Corp. v. Tandet, No. CV \n\n9309‐2714, 1995 WL 447948, at *12 (Conn. Super. Ct. June 16, 1995)). So even if \n\nRichards had made out a contract claim — and he has not — this central feature of \n\nhis CUTPA unfairness theory would be meritless. See Ramirez v. Health Net of Ne., \n\nInc., 938 A.2d 576, 591 (Conn. 2008) (holding that a defendant did not violate \n\nCUTPA when it “availed itself of the rights afforded under the plain and \n\nunambiguous terms of [an] agreement”). \n\n Richards argues that his unfairness claim extends further and does not turn \n\non his contract claim alone. Specifically, he objects to Direct Energy’s supposed \n\npractice of (1) “lur[ing]” consumers with “teaser‐rates,” and later (2) “goug[ing] \n\n[them] with variable rates” that (3) “consumers [do] not monitor.” Pl.‐Appellant \n\nBr. 44. In his view, these practices raise a question of fact as to whether Direct \n\n\n\n\n 29 \n\nEnergy’s pricing strategy was unfair. We consider each component of his \n\nargument in turn. \n\n First, offering a teaser rate is not against public policy, unethical, or \n\nsubstantially injurious on its own, especially when, as here, consumers can cancel \n\nthe contract whenever they like without paying any fee. See A‐G Foods, 579 A.2d \n\nat 77 (holding that a trade practice does not cause a substantial injury under \n\nCUTPA if a consumer could have reasonably avoided it). Richards himself is a \n\ncase in point as to why this is so: He chose to sign with Direct Energy because it \n\noffered the best fixed rate available. That saved him more than $100 over the \n\nStandard Service Rate during the first twelve months of his contract with Direct \n\nEnergy — hardly a “substantial injury.” Votto, 871 A.2d at 985. \n\n Second, Richards’s contention that the variable rates were so high that “no \n\nrational consumer” would voluntarily sign a variable rate contract, Reply Br. 5, is \n\nirrelevant for at least two reasons. First, he did not sign a variable rate contract; \n\nhe signed a fixed rate contract that rolled over into a variable rate after a set time. \n\nAs already noted, this at first saved him money, as compared to the Standard \n\nService Rate, and ultimately cost him only about $1.67 per month above the \n\nStandard Service Rate during his time with Direct Energy. And regardless, \n\n\n\n\n 30 \n\ncharging high prices does not on its own give rise to a CUTPA violation. See, e.g., \n\nBridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 566 F. Supp. 2d 81, \n\n105 (D. Conn. 2008) (Droney, J.) (“[T]he plaintiffs have not shown that the Port \n\nAuthority’s imposition of an excessive passenger fee is an unfair trade practice by \n\nthe preponderance of the evidence.”). Even Richards concedes as \n\nmuch — several times. See, e.g., Pl.‐Appellant Br. 43 (“It is true that pricing \n\npractices “alone” may not give rise to a CUTPA unfairness claim.”); id. at 45; Reply \n\nBr. 17. \n\n Richards’s unfair practices claim thus ultimately depends on his assertion \n\nthat charging a variable rate that “consumers [do] not monitor” is a violation of \n\nCUTPA. Pl.‐Appellant Br. 44. But he supplies no legal authority for this \n\nproposition. Presumably, what bothers Richards is that many Direct Energy \n\nconsumers pay the variable rate when their initial fixed‐rate periods expire, even \n\nthough leaving their contracts would likely save them money. See id. at 44 \n\n(asserting that “no reasonable consumer . . . would remain enrolled in a [Direct \n\nEnergy] variable rate plan”). But this is just an example of “status quo bias”: a \n\ngeneral tendency by people “to stick with their current situation.” Richard H. \n\nThaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and \n\n\n\n\n 31 \n\nHappiness 34 (2008). All sorts of companies design their business strategies with \n\nthe expectation that consumers act this way.8 Many magazines and gyms, for \n\nexample, offer initial discounts on subscriptions and membership on the \n\nassumption that they can make up the loss if customers either decide they like the \n\nproduct or, crucially, forget to cancel. 9 And Connecticut law is clear that \n\n\n\n 8 The core of the dissent’s unfairness argument is thus similarly meritless. \n“People are inertial” and “not attentive,” the dissent proclaims, Dissenting Op. at 7, 8, and \ntherefore Direct Energy has violated the law by “exploit[ing] those consumer \nvulnerabilities,” id. at 7 (citing Neil W. Averitt, The Meaning of “Unfair Acts or Practices” in \nSection 5 of the Federal Trade Commission Act, 70 Geo. L.J. 225 (1981)). But the only \n“vulnerability” that Direct Energy has purportedly “exploited” is our basic tendency to \nbe creatures of habit—a far cry from the targeting of traditionally “legally vulnerable” \ngroups like children, the insane, the seriously ill, the bereaved, or the physically \ndependent, see Averitt, 70 Geo. L.J. at 256. In our view, no reasonable jury could find \nthe former tactic unfair under the circumstances presented here. \n Nor can the dissent rely on the unfounded assertion that Direct Energy has \nengaged in “strategies to avoid alerting customers to their rising rates.” Dissenting Op. \nat 9. That charge is baseless. In a footnote, the dissent references a factual dispute \nabout whether Direct Energy mailed notices to its consumers to notify them that their \nfixed rate periods would soon expire. But whether Direct Energy took it upon itself to \nremind customers of the terms of the contracts that they themselves had willingly signed, \nnothing in the record suggests that Direct Energy erected any affirmative barriers to its \ncustomers exiting those contracts at will. We reject the dissent’s attempt to impose \nadditional affirmative duties under the aegis of CUTPA, a maneuver that Connecticut \ncourts have previously rejected. See Normand Josef Enters., 646 A.2d at 1307; Kenney, \n730 A.2d at 117. \n See, e.g., Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About \n 9\n\nHealth, Wealth, and Happiness 35 (2008) (“American Express wrote [Cass] Sunstein a \ncheerful letter telling him that he could receive, for free, three‐month subscriptions to five \nmagazines of his choice. Free subscriptions seem like a bargain, even if the magazines \nrarely get read, so Sunstein happily made his choices. What he didn’t realize was that \nunless he took some action to cancel his subscription, he would continue to receive the \n\n 32 \n\nwidespread business practices that are consistent with “common business norms” \n\ndo not violate CUTPA. Landmark Inv. Grp., LLC v. Calco Const. & Dev. Co., 60 A.3d \n\n983, 992 (Conn. App. 2013).10 It is therefore clear to us that Direct Energy’s pricing \n\nstrategy during the term of its relationship with Richards was not against public \n\npolicy, immoral, or substantially injurious. \n\n At bottom, Richards signed a contract guaranteeing him a below‐market \n\nrate, which he paid for twelve months. For three months after that, he paid \n\napproximately two cents above the PURA‐approved Standard Service Rate. He \n\nthen left the contract without penalty. Richards now asks us to invalidate a \n\nPURA‐approved contract that he chose after considering more than forty private \n\noptions and the PURA‐approved Standard Service Rate. And he does so while \n\n\n\n\nmagazines, paying for them at the normal rate. For about a decade, he has continued to \nsubscribe to magazines that he hardly ever reads.”). \n 10 In response, the dissent quotes a Connecticut Superior Court decision for the \nproposition that “[t]he fact that the defendant’s practice is standard in the industry . . . \ndoes not excuse it as a violation of CUTPA.” Dissenting Op. at 3 (quoting Halloran v. \nSpillane’s Servicenter, Inc., 41 Conn. Supp. 484, 500 (Conn. Super. Ct. 1990)). But this \ncomparison ignores the substantial daylight between a standard practice within a single \nindustry and common business norms across many industries. Halloran involved a \ntowing company’s refusal to release a vehicle owner’s personal possessions before \npayment of all fees connected with the towing service, id. at 488—apparently a common \npractice within the Connecticut towing business at the time, id. at 500. That conduct \nbears no analogy to quotidian pricing practices like Direct Energy’s, which have long \nbeen mainstream across numerous sectors of American commerce. \n\n\n 33 \n\nconceding that Direct Energy’s pricing practices were akin to those of its \n\ncompetitors. See Reply Br. 17 n.12 (characterizing the private electricity market \n\nas a “corrupt industr[y]”). But Connecticut chose to deregulate consumer \n\nelectricity ratemaking, not transfer that authority from a public utility commission \n\nto the after‐the‐fact judgments of courts interpreting CUTPA. See Mead, 509 A.2d \n\nat 19 (holding that CUTPA claims “that build[] upon the public policy embodied \n\nin specific statutory provisions . . . must be consistent with the regulatory \n\nprinciples established by the underlying statutes”); see also Conn. Gen. Stat. § 42‐\n\n110c (prohibiting suits under CUTPA for “actions otherwise permitted under law \n\nas administered by any regulatory board”). We therefore conclude that \n\nRichards’s CUTPA claim is without merit and that the district court’s partial grant \n\nof summary judgment as to this claim should be affirmed. \n\n II \n\n Richards next challenges the district court’s dismissal of his unjust \n\nenrichment and Massachusetts state law claims. We review de novo a district \n\ncourt’s dismissal on the pleadings, “accepting all factual allegations as true and \n\ndrawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. \n\nEng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “To \n\n\n\n\n 34 \n\nsurvive a motion to dismiss, a complaint must contain sufficient factual matter, \n\naccepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft \n\nv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, \n\n570 (2007)). \n\n A \n\n The district court held that Richards failed to state a claim for unjust \n\nenrichment because he signed a contract with Direct Energy. See also Meaney v. \n\nConnecticut Hosp. Ass’n, Inc., 735 A.2d 813, 823 (Conn. 1999) (“[A]n express contract \n\nbetween the parties precludes recognition of an implied‐in‐law contract governing \n\nthe same subject matter.” (quoting 1 E. Farnsworth, Contracts § 2.20 (2d ed. 1998)). \n\nRichards contends that this was error. He agrees with the district court that he \n\nand Direct Energy had an enforceable contract in principle. But he argues in the \n\nalternative that if this contract did not “prevent [Direct Energy’s] predatory \n\nconduct, then the contract [was] illusory[,] and [he] is entitled to recovery under \n\nunjust enrichment.” Reply Br. 31–32. We disagree. \n\n The contract was not illusory. The implied covenant of good faith and fair \n\ndealing obliged Direct Energy to act in good faith when it set the variable rate, and \n\n“good faith is enough to avoid the finding of an illusory promise.” Sicaras v. City \n\n\n\n\n 35 \n\nof Hartford, 692 A.2d 1290, 1297 (Conn. App. Ct. 1997) (quoting 2 A. Corbin, \n\nContracts § 5.28 (Rev. Ed. 1995)). Because Richards and Direct Energy had a \n\nbinding contract, Richards could not plead an unjust enrichment claim. We \n\ntherefore affirm the district court on this issue. \n\n B \n\n Finally, we turn to Richards’s unfair trade practices claims under \n\nMassachusetts law. The district court dismissed these claims for lack of Article \n\nIII standing because Richards was not injured in Massachusetts. This was error. \n\nA plaintiff has Article III standing if he suffered (1) an injury, (2) caused by the \n\ndefendant that (3) would be redressed by a favorable judicial decision. See, e.g., \n\nMahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). There is no question \n\nthat Richards satisfies this standard: he was (1) charged money, (2) by Direct \n\nEnergy, and (3) seeks recompense for this charge. To be sure, whether a statute \n\ngrants a plaintiff a cause of action will often turn on where the tortious conduct \n\noccurred. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010) \n\n(“[T]o ask what conduct [a statute] reaches is to ask what conduct [that statute] \n\nprohibits, which is a merits question.”). But “the absence of a valid . . . cause of \n\naction does not implicate” Article III standing. Lexmark Int’l, Inc. v. Static Control \n\n\n\n\n 36 \n\nComponents, Inc., 572 U.S. 118, 128 n.4 (2014) (quoting Verizon Md., Inc. v. Pub. Serv. \n\nComm’n of Md., 535 U.S. 635, 642–43 (2002)). \n\n We still affirm the district court’s dismissal of Richards’s Massachusetts \n\nclaims, however, because dismissal was proper under Federal Rule of Civil \n\nProcedure 12(b)(6). See Sharkey v. Quarantillo, 541 F.3d 75, 92 (2d Cir. 2008) \n\n(“Although the district court erroneously dismissed the action pursuant to Rule \n\n12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise \n\nproper based on failure to state a claim under Federal Rule of Civil Procedure \n\n12(b)(6).” (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. \n\nCir. 1997)). Here, Richards failed to state a claim because Massachusetts does not \n\ngive plaintiffs a cause of action for unfair or deceptive acts that “occur[] outside” \n\nMassachusetts. Skyhook Wireless, Inc. v. Google Inc., 19 N.E.3d 440, 449 (Mass. \n\nApp. Ct. 2014). Beyond this statutory hurdle, the United States Constitution \n\nwould also bar Massachusetts from regulating, via consumer protection law, the \n\nrates that Direct Energy charged consumers in Connecticut. See, e.g., Baldwin v. \n\nG.A.F. Seelig, Inc., 294 U.S. 511, 528 (1935) (holding that the Dormant Commerce \n\nClause prohibits one state from “establish[ing] . . . a scale of prices for use in other \n\nstates”); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003) \n\n\n\n\n 37 \n\n(holding that a state may not “punish a defendant for conduct that may have been \n\nlawful where it occurred”). \n\n Richards does not challenge any of this on appeal but instead argues that he \n\nhas “‘class standing’ . . . to assert claims on behalf of” Direct Energy’s Massachusetts \n\ncustomers, even if he cannot personally assert any claims under Massachusetts law. \n\nNECA‐IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d \n\nCir. 2012). But the district court’s August 4, 2015 decision was not to the contrary. \n\nThe court held merely that Richards could not sue on his own behalf under \n\nMassachusetts law; it did not opine on whether a plaintiff asserting claims under \n\nConnecticut law could represent a class of consumers asserting claims under \n\nMassachusetts law. The court never had cause to reach the latter issue because it \n\nnever addressed the issue of class certification. Instead, it dismissed Richards’s \n\nmotion for certification as moot in March 2017 because he no longer had any viable \n\nclaims under Connecticut law. Richards does not challenge this dismissal on \n\nappeal. \n\n Accordingly, we have no occasion to address whether Article III would have \n\nprevented Richards from representing a class of plaintiffs with claims under \n\nMassachusetts law. But see Langan v. Johnson & Johnson Consumer Companies, Inc., \n\n\n\n\n 38 \n\nNo. 17‐1605, 2018 WL 3542624, at *6 (2d Cir. July 24, 2018) (holding that “whether \n\na plaintiff can bring a class action under the state laws of multiple states is a \n\nquestion of predominance under Rule 23(b)(3), not a question of standing under \n\nArticle III”). We therefore affirm the district court’s August 4, 2015 partial \n\ndismissal as to the Massachusetts claims. \n\n CONCLUSION \n\n We have considered each of Richards’s remaining arguments and have \n\ndetermined them to be without merit. Accordingly, the judgment of the district \n\ncourt is AFFIRMED. \n\n\n\n\n 39", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364329/", "author_raw": "DEBRA ANN LIVINGSTON, Circuit Judge:"}, {"author": "POOLER, Circuit Judge, concurring", "type": "concurrence", "text": "POOLER, Circuit Judge, concurring in part and dissenting in part: \n\n Direct Energy sucked customers in with an appealing teaser rate only to \n\nlater jack up the cost when those customers would not notice. The temptation of \n\nthis siren‐like path was no accident. Direct Energy created “glide paths” to ensure \n\ncustomers were lulled into inattentiveness. It ramped up rates for those who were \n\ninattentive to begin with. And then it capitalized on its customers’ lack of \n\nawareness. I am convinced that a jury could reasonably conclude that this pricing \n\npractice is unfair. Accordingly, I dissent from the majority’s conclusion that Direct \n\nEnergy did not commit an unfair practice or breach its contract with its customers. \n\nHowever, I concur that Direct Energy did not, as a matter of law, engage in \n\ndeceptive practices, commit a per se CUTPA violation, or breach any implied \n\ncontract. \n\n Utility deregulation initially promised that introducing competition would \n\nmake electricity and gas service more reliable at lower prices, perhaps even \n\nencouraging green energy alternatives. Those hopes have run up against \n\nunforeseen realities. See generally Electricity Deregulation: Choices and Challenges 145 \n\n(James M. Griffin & Steven L. Puller eds., 2005). This suit is one of a wave of cases \n\nto hit the courts alleging that electricity providers like Direct Energy are \n\n\n\n\n 40 \n\nmanipulating their pricing structures to enable them to charge well more than the \n\nregulated rate for the same service without their customers’ noticing. Competition \n\ncannot deliver its advertised benefits when businesses subvert consumer choice in \n\nthis way. When the legislature has given courts tools to address such abuses, we \n\nshould not shy away from using them with the expectation that the market will \n\nwork itself out. Doing so relies on our hopes for, rather than the reality of, market \n\ncompetition. \n\n A reasonable jury could easily conclude that at least part of Direct Energy’s \n\nbusiness model was to predict, encourage, and profit off of its customers’ \n\ninattention. Direct Energy does not dispute that it set its variable rates as high as \n\nit possibly could without attracting the attention of its customers. That includes \n\nsetting higher rates for a subset of customers who would be less likely to notice \n\nand creating “glide paths” to make all of its customers less likely to notice. A \n\nreasonable jury could also conclude that the letter and spirit of Direct Energy’s \n\nboilerplate contract language did not allow for those pricing practices. \n\n A. Unfairness under CUTPA \n\n Connecticut courts “have adopted the criteria set out in the cigarette rule by \n\nthe Federal Trade Commission for determining when a practice is unfair [under \n\n\n\n\n 41 \n\nCUTPA]: (1) whether the practice, without necessarily having been previously \n\nconsidered unlawful, offends public policy as it has been established by statutes, \n\nthe common law, or otherwise—in other words, it is within at least the penumbra \n\nof some common law, statutory, or other established concept of unfairness; (2) \n\nwhether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it \n\ncauses substantial injury to consumers, competitors, or other businesspersons.” \n\nLandmark Inv. Grp., LLC v. Calco Constr. and Dev. Co., 318 Conn. 847, 880 (2015) \n\n(brackets omitted). \n\n The majority errs in finding “Connecticut law … clear that widespread \n\nbusiness practices that are consistent with ‘common business norms’ do not violate \n\nCUTPA.” Majority op. at 32 (quoting Landmark Inv. Grp., LLC v. Calco Constr. and \n\nDev. Co., 141 Conn. App. 40, 55 (Conn. App. 2013)). To the contrary: in Connecticut, \n\n“[t]he fact that the defendant’s practice is standard in the industry … does not \n\nexcuse it as a violation of CUTPA.” Halloran v. Spillane’s Servicenter, Inc., 41 Conn. \n\nSupp. 484, 500 (Conn. Super. Ct. 1990) (emphasis added). “Common business \n\nnorms” are to be considered at most as part of a court’s determination of whether \n\nthe criterion of unscrupulousness is satisfied, not as dispositive evidence of what \n\nis and is not unfair. \n\n\n\n\n 42 \n\n That a business practice has “not previously [been] considered unlawful” \n\ncannot be considered a defense, as the purpose of unfairness doctrine is “to create \n\na new body of law … adapted to the diverse and changing needs of a complex and \n\nevolving competitive system.” In re Pfizer Inc., 81 F.T.C. 23, 28 (1972); see also Sperry \n\n& Hutchinson, 405 U.S. 233, 244 (1972) (comparing the FTC to a “court of equity”). \n\nMy colleagues suggest that in Connecticut unfairness is a rarity and “the core of \n\nunfair practices [is]: ‘withholding material information; (2) making \n\nunsubstantiated advertising claims; using high‐pressure sales techniques; and (4) \n\ndepriving consumers of various post‐purchase remedies.’” Majority op. at 28 \n\n(citing A‐G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 216 n.9) (Conn. 1990) \n\n(quoting Am. Fin. Servs. Ass’n v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985)). But \n\nneither Connecticut law nor unfairness jurisprudence more generally has \n\nrestricted the doctrine to those categories. 1 And more recent FTC enforcement \n\n\n 1 Those categories were identified in 1981 by an FTC staffer as an effort to \n“catalogu[e] some of the most common commercial practices whose unfairness … has \nalready been litigated and established” up to that point and not to “settle any controversy \nabout how [unfairness] ought to be used.” Richard Craswell, The Identification of Unfair \nActs and Practices by the Federal Trade Commission, 81 Wisc. L. Rev. 107, 108‐09 (1981). The \nD.C. Circuit referred to them in considering the meaning of “unfairness”—correctly \nidentifying them as emanating from an “article authored by a member of the [FTC’s] \nOffice of Planning,” rather than the FTC itself. Am. Fin. Servs. Ass’n, 767 F.2d at 979. \nConnecticut’s Supreme Court quoted the D.C. Circuit decision in a footnote of just one of \nits decisions, incorrectly identifying the categories as promulgated by the FTC and never \nsuggesting that they restricted the universe of unfair practices. A‐G Foods, Inc., 216 Conn. \n\n 43 \n\nactions—targeting data privacy breaches, for instance—suggest that unfairness \n\ndoctrine continues to evolve beyond the purported “core” my colleagues identify. \n\nCf., e.g., F.T.C. v. Wyndham Worldwide Corp., 799 F.3d 236 (3d Cir. 2015) (upholding \n\nan FTC enforcement against a hotel chain that had extremely lax cybersecurity \n\nprotecting its customers’ financial and personal identifying information). \n\n Here, a reasonable jury could conclude that Direct Energy’s pricing strategy \n\nwas an unfair practice. “Whether a practice is unfair and thus violates CUTPA is \n\nan issue of fact.” Landmark, 318 Conn. at 881 (brackets and internal quotation \n\nmarks omitted). Accordingly, our task at this stage is not to determine whether \n\nDirect Energy’s practices were unfair or not. Instead, the grant of summary \n\njudgment should be affirmed only if it can be concluded that no reasonable jury\n\ncould find Direct Energy’s practices were unfair on any of the cigarette rule’s \n\ncriteria. \n\n The FTC considers the third prong of the cigarette test—sometimes called \n\n“unjustified consumer injury”—as “the primary focus of the FTC Act.” Letter from \n\nFederal Trade Commission to Senators Ford and Danforth (Dec. 17, 1980), available \n\nat http://www.ftc.gov/bcp/policystmt/ad‐unfair.htm (“FTC Policy Statement”). \n\n\n\nat 216 n.9. \n\n\n 44 \n\nFollowing the Connecticut legislature’s directive to be “guided by interpretations \n\ngiven by the Federal Trade Commission and the federal courts to [the FTC Act],” \n\nConn. Gen. Stat. § 42‐110b(b), the Connecticut Supreme Court has acknowledged \n\nthat unjustified consumer injury is “the most important of the three … criteria” in \n\nthe cigarette rule, A‐G Foods, Inc., 216 Conn. at 215‐16 (internal quotation marks \n\nomitted). \n\n Connecticut courts have also adopted the FTC’s guidance that an “injury \n\nmust satisfy three tests” to be considered unfair: “[1] [i]t must be substantial; [2] it \n\nmust not be outweighed by any countervailing benefits to consumers or \n\ncompetition that the practice produces; and [3] it must be an injury that consumers \n\nthemselves could not reasonably have avoided.” Id. at 216 (quoting FTC Policy \n\nStatement, supra) (emphasis removed). The majority deems Richards’s individual \n\nharm insubstantial, but that misses the point. For an injury to be substantial, “it \n\nneed not take the form of a single crushing loss.” Neil W. Averitt, The Meaning of \n\n“Unfair Acts or Practices” in Section 5 of the Federal Trade Commission Act, 70 Geo. L.J. \n\n225, 246 (1981). Instead, “[a] recognizable harm may be one that does great injury \n\nto a small number of people, or small injury to a great number of people.” Id. Here, \n\nRichards purports to represent a class of consumers who, in the aggregate, have \n\n\n\n\n 45 \n\nlost $11.2 million—plainly a substantial injury.2 \n\n Though the majority asserts that we should categorically exclude the \n\npossibility that “offering a teaser rate” is “substantially injurious on its own, \n\nespecially when, as here, consumers can cancel the contract whenever they like \n\nwithout paying any fee,” Majority op. at 30, they offer no good reason why that \n\nshould be so. As they acknowledge, the mere fact that a customer can opt out of \n\nan auto‐renewing contract at any time without breaching it does not mean that the \n\ncustomers will do so when it is in their interest. People are inertial. The same \n\npeople who spend hours comparing electricity prices (or credit card rates or online \n\nstreaming services or magazine subscriptions or gym memberships) are quite \n\nunlikely to maintain that level of vigilance once they have habitually received and \n\npaid for electricity (or other goods or services) for months or years on end. \n\nUnfairness doctrine is designed to police such circumstances when businesses \n\nexploit those consumer vulnerabilities. Cf. Averitt, The Meaning of “Unfair Acts or \n\n\n 2 This number represents the amount of money Direct Energy made on its \nvariable‐rate customers less the amount of money it would have made if it had added the \nsame mark‐up it does for its fixed‐rate customers (which Direct Energy itself referred to \nas its “benchmark” profit margin). In other words, it takes into account the costs Direct \nEnergy actually paid and the mark‐up it uses in its own accounting. It does not, contrary \nto my colleagues’ suggestions, represent the amount by which Direct Energy’s variable \nrate prices exceed the regulated rate. That amount is $29 million—or nearly three times \nas much. \n\n\n 46 \n\nPractices”, 70 Geo. L.J. at 251‐52 (“An unfairness action … will be appropriate only \n\nwhen the respondent’s methods have undermined the ability of consumers to \n\nprotect themselves.”). A business that designs its price structure so that those who \n\nare not attentive pay significantly more than they would if they were attentive is \n\nfairly characterized as causing unjustified consumer injury. Direct Energy does not \n\ndispute that it set variable rates as high as it could without attracting the attention \n\nof customers whom it knew would be paying little attention or that, if its \n\ncustomers had been paying attention, they would have been better off. A jury \n\nshould decide if such practice is unfair. \n\n The majority notes that Richards saved money during the teaser/fixed rate \n\nperiod of the contract relative to those who paid the regulated rate—something \n\nthat seems to be true of many of Direct Energy’s customers. But that fact is entirely \n\nconsistent with Richards’s theory of the case: Direct Energy undercut other \n\nsuppliers’ prices to lure customers in, knowing that it could overcharge them once \n\nthey had been customers long enough. In other words, had Richards not saved \n\nduring the fixed term, Direct Energy would never have been able to overcharge. \n\nThat it took only three months of inattention after the fixed rate’s expiration to \n\n\n\n\n 47 \n\nvitiate a full year’s worth of savings provides support for Richards’s theory.3 \n\n A jury could reasonably find that Direct Energy’s strategies to avoid alerting \n\ncustomers to their rising rates,4 together with predictable consumer inertia, imply \n\nthat consumers could not reasonably avoid paying the higher rates. Only those \n\nwho are most anxious about money or most scrupulous about their affairs are \n\nlikely to pay close attention to the rate they are charged for energy (rather than the \n\ngross amount, which varies seasonally and may be due to one’s own changes in \n\nenergy use) and to engage in monthly price comparisons of this rate. \n\n The majority reasons that the fact that “Connecticut chose to deregulate \n\nconsumer electricity ratemaking” suggests that it did not seek to “transfer that \n\nauthority from a public utility commission to the after‐the‐fact judgments of courts \n\n\n\n\n 3 The majority harps on the fact that Richards’s rate was around “two cents above \nthe PURA‐approved Standard Service Rate” when his variable‐rate contract kicked in. \nMajority op. at 33. That is a misleading way to put it. We have to take scale into account: \nthe Standard Service Rate during this period was around eight cents per kilowatt hour. \nTwo cents above the Standard Service rate is thus 125% of the Standard Service Rate. By \ncomparison, Richards’s fixed rate price of $.0745 only saved him approximately one half \na cent per month, or 6% of the Standard Service Rate. \n 4 Direct Energy claims that it sent notices in the mail to its customers indicating \nthat the fixed rate period was about to expire, although Connecticut’s electricity \nregulator, PURA, made a finding in 2015 that Direct Energy had failed to do so in at least \nsome cases. See Richards v. Direct Energy Servs., LLC, 246 F. Supp. 3d 538, 555‐56 (D. Conn. \n2017). Even if Direct Energy did send such notices to all of its customers, it clearly could \nhave done more if it truly wanted them to switch back to a fixed‐rate plan. \n\n\n 48 \n\ninterpreting CUTPA.” Maj. op. at 33. But to infer the latter from the former is to \n\noverread the meaning of “deregulate.” As it is used in the context of electricity \n\n(and other utilities), “deregulation” is shorthand only for a state’s decision to allow \n\nmore than one company to sell electricity to its residents. Electricity provision is \n\nstill highly regulated: public utilities still own and operate the physical \n\ninfrastructure (i.e. the wires, poles, transformers, etc.) subject to state regulation; \n\nonly licensed companies can use this infrastructure to provide electricity; those \n\ncompanies are required to make a number of disclosures and to meet several state‐\n\npromulgated standards; electricity markets largely take place on exchanges \n\ncreated, managed, and regulated by the state; the prices electricity companies \n\ncharge are affected by the fact that they have to compete with the still‐regulated \n\nrates of the public utilities; etc. A state that chooses to regulate its electricity \n\nprovision in part through managed competition does not retreat from any \n\nregulation whatsoever. \n\n B. Good Faith and Breach of Contract \n\n I also disagree with my colleagues that “Richards’s CUTPA claims are \n\nalmost entirely duplicative of his contract claim.” Maj. op. at 23. Even if Direct \n\nEnergy reserved itself absolute discretion in the contract, it is reasonable for a jury \n\n\n\n\n 49 \n\nto conclude that it took advantage of its customers. I now turn to whether Direct \n\nEnergy’s contract permitted it to set prices in the way it did. A reasonable jury \n\ncould conclude that the contract did not enable Direct Energy’s practices. \n\n First, it is not a foregone conclusion that cross‐subsidization, pegging prices \n\nto competitors’, and price smoothing are pricing strategies that are “based upon \n\nbusiness and market conditions.” Maj. op. at 18. The majority concludes that since \n\nany condition Direct Energy faces is either a “business condition” or a “market \n\ncondition,” Direct Energy has effectively granted itself unmitigated discretion to \n\nset prices. If its customers don’t like the price they are getting, the majority reasons, \n\nthose customers can leave. \n\n Just as reasonable, though, is the interpretation that the phrase “business \n\nand market conditions” only includes those conditions that affect Direct Energy’s \n\ncosts of providing electricity. On this reading, “business conditions” refers to \n\nrelatively fixed costs of labor, facilities, legal representation, and the like, while \n\n“market conditions” refers to the more variable cost of purchasing electricity and \n\nelectricity derivatives. Cf. Mirkin v. Viridian Energy, Inc., No. 15‐cv‐1057, 2016 WL \n\n3661106, at *8 (D. Conn. July 5, 2016) (discussing a contract that included “a \n\nvariable rate based on wholesale market conditions” as a basis to find a breach \n\n\n\n\n 50 \n\nwhen prices were not set based on wholesale prices); Edwards v. N. Am. Power & \n\nGas, LLC, 120 F. Supp. 3d 132, 143 (D. Conn. 2015) (“While the text of the contract \n\nitself does not indicate that NAPG prices would definitively or precisely be linked \n\nwith the wholesale market price, with or without the marketing materials, it is \n\nplausible that a reasonable consumer would infer a direct link between the two.”); \n\nClaridge v. N. Am. Power & Gas, LLC, No. 15‐cv‐1261, 2015 WL 5155934, at *4‐6 \n\n(S.D.N.Y. Sept. 2, 2015) (finding bad faith on a contract that guaranteed “variable \n\nmarket rates” according to an unspecified formula). Direct Energy notified \n\nconsumers that its variable rates would be calibrated to pass on its costs—i.e. there \n\nwould be risk‐sharing—but did not place customers on notice that it would set \n\nprices in whatever matter it calculated to be most profitable. \n\n In Connecticut, “[w]hen the language of a contract is ambiguous, the \n\ndetermination of the partiesʹ intent is a question of fact” to be submitted to a jury. \n\nGabriel v. Gabriel, 324 Conn. 324, 341 (2016). “In choosing among the reasonable \n\nmeanings of a promise or agreement or a term thereof, that meaning is generally \n\npreferred which operates against the party who supplies the words or from whom \n\na writing otherwise proceeds.” Restatement (Second) of Contracts § 206; see also \n\nWilliston on Contracts § 32:13 (4th ed. 2017). A reasonable juror could find that \n\n\n\n\n 51 \n\nDirect Energy tied its price‐setting discretion to its cost of doing business. Cf. Silvis \n\nv. Ambit Energy L.P., 674 F. Appʹx 164, 168 (3d Cir. 2017) (finding that a clause that \n\npermitted price to “vary dependent upon price fluctuations in the energy and \n\ncapacity markets” was ambiguous because it was unclear whether the phrase \n\n“may vary” afforded the electricity supplier complete discretion in setting rates, \n\nor whether that discretion was limited by the clause “dependent upon price \n\nfluctuations in the energy and capacity markets”). \n\n Under Connecticut law, when a contract gives one party discretion to \n\ndetermine how to render performance on an open‐ended term, “it is axiomatic that \n\nthe duty of good faith and fair dealing” is read into the contract to cabin that \n\ndiscretion and avoid rendering the obligation illusory. De La Concha of Hartford, \n\nInc. v. Aetna Life Ins. Co., 269 Conn. 424, 432 (2004) (internal punctuation and \n\nquotation marks omitted). “The majority of courts have held that subjective bad \n\nfaith is irrelevant” and that a seller who objectively does not “charge commercially \n\nreasonable amounts” or who “discriminate[s] among its purchasers” fails to act in \n\ngood faith. Marcus Dairy, Inc. v. Rollin Dairy Corp., No. 05‐cv‐589, 2008 WL 4425954, \n\nat *8 (D. Conn. Sept. 24, 2008) (internal quotation marks omitted). In Connecticut, \n\n“a neglect or refusal to fulfill some duty … not prompted by an honest mistake as \n\n\n\n\n 52 \n\nto one’s rights or duties, but by some interested or sinister motive” may suffice to \n\ndemonstrate bad faith. De La Concha, 269 Conn. at 433 (quoting Habetz v. Condon, \n\n224 Conn. 231, 237 (1992)). \n\n Whether a party has acted in good faith or not is a question of fact for the \n\njury. See Renaissance Mgmt. Co. v. Conn. Housing Fin. Auth., 281 Conn. 227, 240‐41 \n\n(2007). The facts on this record would allow a jury to conclude that Direct Energy’s \n\npricing practices undermined the legitimate expectations5 set by the contract. It is \n\nuncontested that Direct Energy set monthly variable rate prices for reasons other \n\nthan passing on the cost of providing electricity for that month. It raised variable‐\n\nrate prices to recoup anticipated losses among fixed‐rate customers, and it \n\nsmoothed variable‐rate prices so that customers would not notice how high they \n\nwere getting. A jury should determine whether Direct Energy’s reasons amounted \n\nto bad faith or a breach of the contract given the letter and spirit of the contract—\n\na question this Court should not answer in the jury’s place. Cf. Edwards, 120 F. \n\nSupp. 3d at 147 (“While the contract left the price open to be set at NAPGʹs \n\n\n 5 Consumers’ expectations about the meaning of a term in the fine print of an \nadhesive contract are nearly always legal fictions, but the law is clear that they are fictions \non which we are to rely. One recent suggestion to tether these fictions to reality is the \nadmission of survey evidence on what particular passages mean. See Omri Ben‐Shahar & \nLior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. \n1753 (2017). \n\n\n 53 \n\ndiscretion with certain limitations, the covenant of good faith and fair dealing \n\nmandates that NAPG exercise that discretion reasonably by charging a \n\ncommercially reasonable price.”). \n\n C. Dismissal of Massachusetts Claims \n\n Another panel of this Court recently rejected the rationale supporting the \n\ndistrict court’s dismissal of Richards’s Massachusetts‐based claims for lack of \n\nstanding: \n\n in Richards v. Direct Energy Servs., LLC, the district court \n concluded that a Connecticut plaintiff that alleged that the \n defendant energy company had attracted customers with \n misleading promises of low rates lacked standing to sue on \n behalf of Massachusetts consumers who were injured by the \n same defendant. 120 F. Supp. 3d at 151. The court reasoned that \n “[w]ithout an allegation that [the named plaintiff] personally \n was injured in Massachusetts,” the plaintiff’s claim was \n essentially that, like the plaintiffs in Massachusetts, he had \n “suffered in some indefinite way in common with people \n generally.” Id. at 155 (internal quotation marks and alteration \n omitted). This reasoning falters upon its premise: the harm the \n plaintiff alleged was not a general grievance common to people \n generally; it was a specific grievance based on the defendant’s \n falsely advertised rates, suffered by specific people (Connecticut \n and Massachusetts customers of the defendant), under a specific \n set of circumstances. See id. We fail to see how the fact that the \n defendant’s wrongful conduct impacted customers in two states \n rendered the injuries of the Massachusetts consumers somehow \n more indefinite than the identical injuries of the Connecticut \n consumers. \n \n\n\n 54 \n\nLangan v. Johnson & Johnson Consumer Cos., Inc., 897 F.3d 88, 96 (2d Cir. 2018). The \n\nquestion of “whether a plaintiff can bring a class action under the state laws of \n\nmultiple states is a question of predominance under Rule 23(b)(3), not a question \n\nof standing under Article III.” Id. I would remand this case to the district court to \n\ndetermine, under Rule 23, whether a class should be certified and whether it \n\nshould include Massachusetts consumers. \n\n In sum, I would vacate the district court’s grant of summary judgment with \n\nrespect to the unfairness and contract claims and remand for consideration of class \n\ncertification in the first instance. \n\n \n\n\n\n\n 55", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364329/", "author_raw": "POOLER, Circuit Judge, concurring"}]} | POOLER | PARKER | LIVINGSTON | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587076/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Gary W. RICHARDS, on Behalf of Himself and All Others Similarly Situated, Plaintiff-Appellant, v. DIRECT ENERGY SERVICES, LLC, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n17‐1003‐cv \nRichards v. Direct Energy Servs., LLC \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n \n August Term 2017 \n \n (Argued: April 11, 2018 Decided: February 4, 2019) \n \n No. 17‐1003‐cv \n \n –––––––––––––––––––––––––––––––––––– \n \n GARY W. RICHARDS, \n on behalf of himself and all others similarly situated, \n \n Plaintiff‐Appellant, \n \n ‐v.‐ \n \n DIRECT ENERGY SERVICES, LLC, \n \n Defendant‐Appellee. \n \n –––––––––––––––––––––––––––––––––––– \n \nBefore: POOLER, PARKER, and LIVINGSTON, Circuit Judges. \n \n Plaintiff‐Appellant Gary Richards (“Richards”) entered into a consumer \nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \nEnergy”). Richards stayed on this contract for fifteen months. The contract \ninitially guaranteed Richards a fixed electricity rate that was 10% lower than the \nstate‐approved electricity rate. Consistent with the terms of the contract, \nRichards’s fixed‐rate plan was converted into a variable rate plan after the first \ntwelve months. Direct Energy then continued supplying electricity to Richards \nat a new variable rate for three months, at two cents more per kilowatt hour \n\n 1 \n\n(“kWh”) than the state‐approved rate. The contract stated that this variable rate \nwould be calculated to reflect “business and market conditions.” After \nterminating his contract, Richards sued Direct Energy, alleging breach of contract, \ndeceptive and unfair trade practices, and unjust enrichment. The United States \nDistrict Court for the District of Connecticut (Bolden, J.) dismissed several of \nRichards’s claims, and granted summary judgment to Direct Energy on his \nremaining claims. The judgment of the district court is AFFIRMED. \n \n JUDGE POOLER concurs in part and dissents in part in a separate opinion. \n \nFOR PLAINTIFF‐APPELLANT: ROBERT A. IZARD (Craig A. Raabe, on the \n brief), Izard, Kindall & Raabe LLP, West \n Hartford, CT, for Gary W. Richards. \n \nFOR DEFENDANT‐APPELLANT: MICHAEL D. MATTHEWS (James M. \n Chambers, Hutson B. Smelley, Robert P. \n Debelak III, on the brief), McDowell & \n Hetherington LLP, Houston, TX, for Direct \n Energy Services, LLC. \n \nDEBRA ANN LIVINGSTON, Circuit Judge: \n\n Plaintiff‐Appellant Gary W. Richards (“Richards”) entered into an \n\nelectricity contract with Defendant‐Appellee Direct Energy Services, LLC (“Direct \n\nEnergy”). The contract provided that, for the first twelve months, Direct Energy \n\nwould guarantee Richards a fixed electricity rate that was 10% below the state‐\n\napproved rate. But if Richards did not leave the contract at the end of that year, \n\nDirect Energy would begin charging him a new variable rate. The variable rate, \n\naccording to the contract, would be set on a month to month basis according to \n\n\n\n\n 2 \n\nDirect Energy’s “discretion” and would reflect “business and market conditions.” \n\nJ.A. 157. Richards was free to terminate the contract at any time without paying \n\na penalty. After twelve months on the discounted fixed rate plan, Richards began \n\npaying the variable rate. During this time, the variable rate was two cents more \n\nper kilowatt hour (“kWh”) than the state‐approved rate. Richards switched \n\nelectricity providers after fifteen months with Direct Energy (twelve on the \n\ndiscounted fixed rate, three on the variable rate), complaining that the variable \n\nrate was set too high. He then sued Direct Energy for breach of contract, \n\ndeceptive and unfair trade practices, and unjust enrichment, and also sought to \n\nrepresent a class of all Direct Energy customers who paid the variable rate in \n\nConnecticut and Massachusetts. The district court dismissed several of his \n\nclaims and granted summary judgment to Direct Energy as to the rest. \n\n This is the latest in a line of class actions challenging consumer gas and \n\nelectricity rates in the wake of market deregulation.1 Richards’s principal claim \n\nis that Direct Energy breached its contract with Richards and violated state unfair \n\nand deceptive trade practices law by not pegging its variable rate to Direct \n\n\n 1 See, e.g., Hamlen v. Gateway Energy Servs. Corp., No. 16 Civ 3526, 2017 WL 6398729, \nat *8 (S.D.N.Y. Dec. 8, 2017); Edwards v. N. Am. Power & Gas, LLC, 120 F. Supp. 3d 132, 142 \n(D. Conn. 2015); Yang Chen v. Hiko Energy, LLC, No. 14 CV 1771, 2014 WL 7389011, at *4 \n(S.D.N.Y. Dec. 29, 2014). \n\n\n 3 \n\nEnergy’s procurement costs. We disagree. By the contract’s plain terms, Direct \n\nEnergy promised that the variable rate would be set in its discretion and that it \n\nwould reflect “business and market conditions,” a phrase which encompasses \n\nmore than just procurement costs. Accordingly, the judgment below is \n\nAFFIRMED. \n\n BACKGROUND \n\n I. Factual Background2 \n\n A \n\n This is a contract dispute set in the context of Connecticut’s electricity \n\nmarket. ISO New England, Inc. is responsible for administering a market in \n\nwhich local electricity distribution companies bid on electricity supplied by power \n\ngenerators. In Connecticut, two electric distribution companies, Eversource and \n\nUnited Illuminating, maintain monopoly control over electricity distribution \n\nsystems within set geographic zones and are ultimately responsible for \n\ndistributing electricity to consumers in those zones. Consumers may enter into \n\n\n 2 The facts outlined below primarily relate to the claims dismissed on summary \njudgment and are therefore either undisputed or presented in the light most favorable to \nRichards. See Raspardo v. Carlone, 770 F.3d 97, 111 (2d Cir. 2014). As for Richards’s \nclaims dismissed on the pleadings, we accept all factual allegations as true and draw all \nreasonable inferences in Richards’s favor. See Trs. of Upstate N.Y. Eng’rs Pension Fund v. \nIvy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). \n\n\n 4 \n\nelectricity contracts with either company directly. All these contracts offer \n\nelectricity at “Standard Service Rates,” which Connecticut’s Public Utilities \n\nRegulatory Authority (“PURA”) approves in advance. See Conn. Gen. Stat. § 16‐\n\n19(a). \n\n In 2000, Connecticut deregulated its consumer electricity market. \n\nConsumers may still purchase electricity from either Eversource or United \n\nIlluminating at their PURA‐approved Standard Service Rates (effectively a public \n\noption), but they may instead choose to contract with one of the forty PURA‐\n\nlicensed retail electricity suppliers (the private market), all of which piggyback on \n\nEversource and United Illuminating’s electricity distribution systems. These \n\nsuppliers purchase power that they then sell to consumers at market‐based, \n\nunregulated rates. Many offer variable prices, promotional rates, guarantees that \n\nenergy will come from renewables, and incentives like cash rebates and gift cards. \n\nSome suppliers also include “guaranteed savings” provisions in their contracts, \n\nwhich ensure that consumers will save money compared to the Standard Service \n\nRates. In general, the Standard Service Rates tend to adjust more slowly in \n\nresponse to changes in the wholesale electricity market than market rates. \n\n\n\n\n 5 \n\n Although PURA does not regulate suppliers’ rates, it regulates the suppliers \n\nthemselves. PURA licenses all private electricity suppliers, id. § 16‐245(a)–(b), \n\nand reviews these licenses every five years, Conn. Agency Regs. § 16‐245‐2(f). It \n\nalso polices how suppliers word their consumer contracts. Among other things, \n\nthese contracts must contain: \n\n “all material terms of the agreement”; \n\n “a clear and conspicuous statement explaining the rates that [ea]ch \n customer will be paying, including the circumstances under which the \n rates may change”; \n\n “a clear and conspicuous statement . . . describing any penalty for early \n termination of such contract”; and \n\n “a statement that provides specific directions to the customer as to how \n to compare the price term in the contract to the customer’s existing . . . \n charge on the electric bill and how long those rates are guaranteed.” \n\nConn. Gen. Stat. § 16‐245o(f)(2). Finally, Connecticut’s state government helps \n\nmaintain an electricity‐comparison website that lists available electricity suppliers \n\nand compares electricity suppliers’ rates and other relevant contract terms to each \n\nother and to the default Standard Service Rates.3 \n\n\n\n\n See “Compare Generation Rates,” ENERGIZE CT, https://www.energizect.com/ \n 3\n\ncompare‐energy‐suppliers (last visited July 4, 2018). \n\n\n 6 \n\n B \n\n Direct Energy is a private electricity supplier that offers several different \n\nelectricity plans to consumers in the private market. Some of its plans come with \n\nadd‐ons, like an Internet‐connected Nest thermostat, a home warranty, or a \n\nguarantee that 100% of the energy will come from “green” sources. During the \n\ntime at issue in this case, all of Direct Energy’s plans were “Evergreen plans,” \n\nmeaning that Direct Energy would charge a fixed rate for a set time (between \n\ntwelve and thirty‐six months), and at the end of that period, if the customer took \n\nno action, Direct Energy would charge a variable rate that could change each \n\nmonth. \n\n Direct Energy balanced several factors when setting the variable rate. In \n\ngeneral, Direct Energy targeted a certain profit margin based on its own cost of \n\nenergy while not setting the rate so high that customers would leave. \n\nCompetitors’ prices, market‐share objectives, supply hedging strategies, \n\nlegislative and regulatory requirements, and market risk helped inform these \n\nfactors. Direct Energy’s variable rate was higher than its fixed rate, so when a \n\ncustomer switched to the variable rate, Direct Energy often reduced the customer’s \n\n\n\n\n 7 \n\nvariable rate for the first few months to smooth the transition. At one point, more \n\nthan half of Direct Energy’s Connecticut customers were paying the variable rate. \n\n In March 2012, Gary Richards signed a two‐page electricity contract with \n\nDirect Energy guaranteeing him a fixed electricity rate of 7.45 cents per kWh for \n\none year. This was an Evergreen plan, so after the year expired, Richards’s \n\n“service [would] automatically continue each month without additional notice, \n\nand [Richards] [would] pay a variable rate per kWh, which [could] be higher or \n\nlower each monthly billing cycle.” J.A. 157. The contract further stated: \n\n After the Initial Term and during the Renewal Period, the rate for electricity \n will be variable each month at Direct Energy’s discretion. The rate may be \n higher or lower each month based upon business and market conditions. \n \nId. We refer to this as “the Evergreen clause.” Richards could cancel the \n\ncontract “at any time without an early cancellation fee.” Id. These terms were \n\nall included on the first page of the contract, and PURA had earlier determined \n\nthat this contract was sufficiently clear and fulfilled all the requirements mandated \n\nby Conn. Gen. Stat. § 16‐245o(f)(2). \n\n After using the Connecticut government’s electricity‐comparison website \n\nmentioned above, Richards chose Direct Energy because it promised “the best \n\nfixed rate that [he] could get at the time” and no termination fee. J.A. 121. He \n\n\n\n\n 8 \n\ndid not consider any other factors, nor did he have any expectations about how \n\nthe variable rate would work. But he still paid attention to his electricity rate \n\nduring the fixed‐rate period and compared rates on the Connecticut electricity \n\nwebsite several times. At one point, he tried to switch electricity providers to get \n\na better fixed rate, but the new provider never followed up on his inquiries. \n\n Richards ultimately stayed on the Direct Energy contract through the full \n\ntwelve months, did not opt out at the end, and so was rolled over onto the variable \n\nrate, which he paid for three months starting in April 2013. For those three \n\nmonths, the variable rate stayed constant at 10.64 cents per kwH, or 2.36 cents per \n\nkWh higher than Eversource’s PURA‐approved Standard Service Rate during this \n\ntime.4 There is no evidence in the record that Direct Energy’s variable rate was \n\nhigher than the rates charged by Direct Energy’s market competitors. Direct \n\nEnergy’s procurement costs were also largely constant during this three‐month \n\nperiod. \n\n In August 2013, Richards noticed that his electricity bills had risen \n\ncompared to previous months, so he canceled his contract with Direct Energy and \n\nswitched electricity providers. Over the course of the fixed‐rate period, Richards \n\n\n\n 4 The record does not disclose United Illuminating’s Standard Service Rate. \n\n\n 9 \n\npaid $114 less than he would have under Eversource’s Standard Service Rate. \n\nBut his three months on the variable rate eliminated those savings. In total, for \n\nthe fifteen months he signed with Direct Energy, Richards, a former Vice President \n\nfor AT&T, paid $25 more than he would have under the Standard Service Rate — \n\nor about $1.67 per month extra. \n\n Richards submitted a letter to PURA complaining about Direct Energy in \n\nMarch 2014. Shortly after, Robert Izard, an attorney who has filed lawsuits like \n\nthis one against other electricity suppliers, see, e.g., Edwards v. N. Am. Power & Gas, \n\nLLC, 120 F. Supp. 3d 132 (D. Conn. 2015), contacted Richards and encouraged him \n\nto sue. Richards then retained Izard to represent him in this case. \n\n II. Procedural History \n\n In November 2014, Richards sued Direct Energy in the United States District \n\nCourt for the District of Connecticut (Bolden, J.) alleging breach of contract, unjust \n\nenrichment, and unfair and deceptive trade practices under the Connecticut \n\nUnfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42‐110b(a), and the \n\nMassachusetts Regulation of Business Practices for Consumers’ Protection Act, \n\nMass. Gen. Laws ch. 93A, § 1. He sought to certify a class of similarly situated \n\nDirect Energy customers who lived in Connecticut and Massachusetts. \n\n\n\n\n 10 \n\n Most of his allegations concerned Direct Energy’s variable rate beginning in \n\nthe winter of 2013–2014 — well after Richards left Direct Energy. Starting in that \n\n(unusually cold) winter, the variable rate jumped by about 50% and stayed level \n\nthrough August 2015. Generally, the variable rate was about 75% higher than \n\nDirect Energy’s procurement costs, which fluctuated significantly, but the variable \n\nrate was lower than its procurement costs during the 2013–2014 winter. Direct \n\nEnergy thus kept variable rates steady through 2014 (and into 2015) to recover \n\nfrom its winter losses. Many other electricity companies never recovered from \n\ntheir winter losses and went out of business. \n\n The district court dismissed Richards’s Massachusetts state law and \n\nConnecticut unjust enrichment claims on August 4, 2015. See Richards v. Direct \n\nEnergy Servs., LLC, 120 F. Supp. 3d 148 (D. Conn. 2015). Because Richards is a \n\nConnecticut resident who was injured in Connecticut and not Massachusetts, the \n\ncourt concluded that Richards lacked Article III standing to bring an unfair and \n\ndeceptive trade practices claim under Massachusetts law. Richards also failed to \n\nstate a claim for unjust enrichment because “[a] plaintiff . . . cannot plead a claim \n\nof unjust enrichment if he also pleads the existence of an express contract,” as \n\nRichards had. Id. at 165. \n\n\n\n\n 11 \n\n During discovery, the parties produced dueling expert witness reports. As \n\nrelevant here, Richards’s experts, economists who had been retained to produce \n\nexpert witness reports in prior class actions like this one, opined that Direct \n\nEnergy’s variable rate should be “consistent with” Direct Energy’s procurement \n\ncosts, “plus an appropriate margin to cover the legitimate costs and risks of \n\nsupplying Variable Rate customers.” Confidential App. 44. At the same time, \n\nthe experts made clear that they did not “offer an opinion on” how the Evergreen \n\nclause should be interpreted. Id. at 374; see also id. at 164 (“I’m not the expert on, \n\nyou know, legal meaning of business and market conditions. But as an \n\neconomist, you know, I do have an opinion professionally . . . .”). Their \n\nconclusions were purportedly based on, as one put it, “[their] personal economic \n\nbelief of what is reasonable,” given their knowledge of the electricity market. \n\nId. at 374. \n\n The district court granted summary judgment to Direct Energy on \n\nRichards’s remaining claims on March 31, 2017. See Richards v. Direct Energy \n\nServs., LLC, 246 F. Supp. 3d 538 (D. Conn. 2017). Direct Energy was entitled to \n\nsummary judgment on Richards’s contract claim, the district court concluded, \n\nbecause Richards had not “put forth sufficient evidence to create a material factual \n\n\n\n\n 12 \n\ndispute about Direct Energy’s bad faith,” as required for his claim based on an \n\nalleged breach of the covenant of good faith and fair dealing. Id. at 557. \n\n The district court also granted summary judgment to Direct Energy on \n\nRichards’s unfair and deceptive trade practices claims under Connecticut law. \n\nRichards had argued that the Evergreen clause was deceptive because a reasonable \n\nconsumer would interpret it to mean that Direct Energy would charge consumers \n\nits procurement costs, plus a fixed profit margin. The district court disagreed and \n\nheld that the clause plainly gave Direct Energy “discretion to set a profit margin \n\nof its choosing when determining variable rates.” Id. at 552. Next, Richards \n\ncontended that his contract with Direct Energy failed adequately to explain “the \n\ncircumstances under which the rates [could] change,” which if true, would be a \n\nper se unfair trade practice. Id. at 555 (quoting Conn. Gen. Stat. § 16–245o(f)(2)), \n\nsee also Conn. Gen. Stat. § 16–245o(j). The district court rejected this argument \n\nbecause PURA had approved the contract language at issue. Finally, Richards \n\nargued that Direct Energy set the variable rate so high as to be “unfair” under \n\nConnecticut law. Not so, the district court held, because “pricing decisions \n\nalone” do not constitute unfair trade practices. Id. at 554. \n\n\n\n\n 13 \n\n Finally, the district court dismissed Richards’s motion for class certification \n\nas moot because it had dismissed or granted summary judgment on all of \n\nRichards’s claims. Final judgment was entered on March 31, 2017. \n\n DISCUSSION \n\n On appeal, Richards challenges the district court’s March 31, 2017 grant of \n\nsummary judgment to Direct Energy on his contract and Connecticut unfair and \n\ndeceptive trade practices claims, and its August 4, 2015 dismissal of his unjust \n\nenrichment and Massachusetts unfair trade practices claims. For the reasons that \n\nfollow, we AFFIRM the judgment of the district court. \n\n I \n\n “We review a grant of summary judgment de novo, examining the evidence \n\nin the light most favorable to, and drawing all inferences in favor of, the non‐\n\nmovant.” Blackman v. New York City Transit Auth., 491 F.3d 95, 98 (2d Cir. 2007) \n\n(per curiam) (quoting Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir. 2003)). \n\n“Summary judgment is appropriate only if it can be established ‘that there is no \n\ngenuine issue as to any material fact and that the moving party is entitled to \n\njudgment as a matter of law.’” Sheppard, 317 F.3d at 354–55 (quoting Fed. R. Civ. \n\nP. 56(a)). \n\n\n\n\n 14 \n\n A \n\n Richards argues that Direct Energy breached its contract with him because \n\nit violated the implied covenant of good faith and fair dealing. Under \n\nConnecticut law, the implied covenant attaches to every contract and “requir[es] \n\nthat neither party do anything that will injure the right of the other to receive the \n\nbenefits of the agreement.” Renaissance Mgmt. Co. v. Connecticut Hous. Fin. Auth., \n\n915 A.2d 290, 297–98 (Conn. 2007) (quoting De La Concha of Hartford, Inc. v. Aetna \n\nLife Ins. Co., 849 A.2d 382, 388 (Conn. 2004)). The covenant is thus “not implicated \n\nby conduct that does not impair contractual rights.” Capstone Bldg. Corp. v. Am. \n\nMotorists Ins. Co., 67 A.3d 961, 987 (Conn. 2013). \n\n To establish a breach of the implied covenant, the plaintiff must also show \n\nthat the defendants’ allegedly wrongful acts were “taken in bad faith.” De La \n\nConcha, 849 A.2d at 388 (quoting Alexandru v. Strong, 837 A.2d 875, 883 (Conn. App. \n\nCt. 2004)). “Bad faith in general implies both actual or constructive fraud, or a \n\ndesign to mislead or deceive another, or a neglect or refusal to fulfill some duty or \n\nsome contractual obligation, not prompted by an honest mistake as to one’s rights \n\nor duties, but by some interested or sinister motive.” Id. (quoting Habetz v. \n\nCondon, 618 A.2d 501, 504 (Conn. 1992)). Because this is a high bar, “[t]he \n\n\n\n\n 15 \n\ncovenant will be breached only in a narrow range of cases.” Sec. Plans, Inc. v. \n\nCUNA Mut. Ins. Soc., 769 F.3d 807, 817 (2d Cir. 2014); see also Restatement (Second) \n\nof Contracts § 205 cmt. e (Am. Law Inst. 1981) (listing, as paradigmatic examples \n\nof such breaches, “harassing demands for assurances of performance, rejection of \n\nperformance for unstated reasons, willful failure to mitigate damages, and abuse \n\nof a power to determine compliance or to terminate the contract”). \n\n Richards’s contention that Direct Energy breached the implied covenant of \n\ngood faith and fair dealing ultimately rests on his interpretation of the Evergreen \n\nclause. Again, the clause states: \n\n After the Initial Term and during the Renewal Period, the rate for electricity \n will be variable each month at Direct Energy’s discretion. The rate may be \n higher or lower each month based upon business and market conditions. \n \nJ.A. 157. In Richards’s view, “a reasonable consumer would understand [this] \n\ncontract language to mean that [the] variable rate[] would fluctuate with [Direct \n\nEnergy’s] procurement costs.” Pl.‐Appellant Br. 54. And because the variable \n\nrate stayed constant while procurement costs fluctuated from the winter of 2013–\n\n2014 through August 2015, Direct Energy “ignored the language of the contract.” \n\nId. at 55. Richards contends that, at minimum, his two experts attested that a \n\nreasonable consumer would interpret the Evergreen clause this way, which raises \n\n\n\n\n 16 \n\na plausible question of fact as to the clause’s appropriate interpretation. He also \n\nmaintains that Direct Energy acted in bad faith because Direct Energy set its \n\nvariable rates too high, and “lure[d] new customers into enrolling . . . by offering \n\nlow fixed teaser rates for a set period of time.” Id. at 20. For the following \n\nreasons, we disagree. \n\n Direct Energy did not “evade[] [the contract’s] spirit” or frustrate Richards’s \n\n“justified expectations.” Landry v. Spitz, 925 A.2d 334, 345 (Conn. App. Ct. 2007). \n\nThe Evergreen clause states that Direct Energy had “discretion” to set the variable \n\nrate “based upon business and market conditions.” J.A. 157. The record reflects \n\nthat Direct Energy set the variable rate to achieve a target profit margin, match \n\ncompetitors’ prices, and reduce customer losses, among other objectives. As a \n\nmatter of plain meaning, these sorts of considerations constitute “business and \n\nmarket conditions.” See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining \n\n“business” as “[a] commercial enterprise carried on for profit” and “market” as “the \n\nextent of economic demand” (emphasis added)); see also U.C.C. § 2‐723(1) (Am. Law \n\nInst. & Unif. Law Comm’n 2017) (explaining that, in calculating damages in the \n\ncontracts context, “market price . . . shall be determined according to the \n\n[prevailing] price of such goods” (emphasis added)). The Evergreen clause in no \n\n\n\n\n 17 \n\nway states or implies that such considerations are improper, nor does it suggest \n\nthat the variable rate bears a direct relationship to Direct Energy’s procurement \n\ncosts. \n\n Richards’s experts’ testimony adds nothing to his breach of contract claim. \n\nThese experts opined only on what factors the variable rate should reflect, in their \n\nview, while declining to “offer an opinion on” how the Evergreen clause should \n\nbe interpreted. Confidential App. 374; see also id. at 164 (“I’m not the expert on, \n\nyou know, legal meaning of business and market conditions. But as an \n\neconomist, you know, I do have an opinion professionally . . . .”). And the \n\nexperts’ interpretation of the Evergreen clause would be irrelevant even if they had \n\nopined on its legal meaning because “the construction of unambiguous contract \n\nterms is strictly a judicial function.” 31A Am. Jur. 2d Expert and Opinion Evidence \n\n§ 294 (2018) (explaining that, “unless the words or phrases [in a contract] . . . are \n\nterms of art,” expert testimony “regarding the meanings of contractual provisions \n\n\n\n\n 18 \n\n[is] irrelevant and hence inadmissible”).5 Courts across the country have thus \n\nrightly dismissed arguments like Richards’s even at the pleadings phase.6 \n\n To be sure, even though the Evergreen clause gave Direct Energy discretion \n\nin setting the variable rate, Direct Energy was obliged to “exercise that discretion \n\n\n 5 For the same reason, the dissent’s observation that ambiguous contract language \ncreates a jury question regarding the parties’ intent, Dissenting Op. at 12, misses the point. \nIn the context of Richards’s claim, the Evergreen clause is not ambiguous. Richards \nhimself testified that even he did not interpret the contract as he would now have us read \nit. See J.A. 135 (agreeing that Direct Energy had “[p]retty much” complete discretion in \ndeciding how to set its variable rate). While there might be some pricing considerations \nthat would fall outside the “business and market conditions” that Direct Energy was \nexplicitly authorized to consider, nothing in that phrase suggests the specific limitation \nthat Richards now argues for. The dissent’s contention that a “reasonable juror . . . could \nfind that Direct Energy tied its price‐setting discretion to its cost of doing business,” \nDissenting Op. at 12–13, is patently incorrect, so long as jurors are constrained by law, and \nnot permitted to invent absent contract terms out of thin air. \n 6 See Orange v. Starion Energy PA, Inc, No. CV 15‐773, 2016 WL 1043618, at *4 (E.D. \nPa. Mar. 16, 2016), aff’d, 711 F. App’x 681 (3d Cir. 2017); Windley v. Starion Energy, Inc., No. \n14‐CV‐9053, 2016 WL 197503, at *2 (S.D.N.Y. Jan. 8, 2016), appeal withdrawn, No. 16‐320 \n(2d Cir. 2016); Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *4 \n(N.D. Ill. May 22, 2015), rev’d and vacated in part on other grounds, 847 F.3d 875 (7th Cir. \n2017); Urbino v. Ambit Energy Holdings, LLC, No. Civ. 14‐5184, 2015 WL 4510201, at *4–5 \n(D.N.J. July 24, 2015); Faistl v. Energy Plus Holdings, LLC, No. Civ. 12‐2879, 2012 WL \n3835815, at *5–6 (D.N.J. Sept. 4, 2012). \n Moreover, because there is no evidence in the record that Direct Energy \nsupplemented the terms of its written contract with additional representations to \nRichards, this case is different from those where defendants are alleged to have \nmisrepresented to the plaintiffs that the “business and market conditions” clauses would \nguarantee below‐market prices. See Todd v. XOOM Energy Maryland, LLC, No. GJH‐15‐\n0154, 2017 WL 667198, at *8 (D. Md. Feb. 16, 2017); Melville v. Spark Energy, Inc., No. 15‐\n8706, 2016 WL 6775635, at *4 (D.N.J. Nov. 15, 2016); Landau v. Viridian Energy PA LLC, 223 \nF. Supp. 3d 401, 418–19 (E.D. Pa. 2016); Mirkin v. Viridian Energy, Inc., No. 3:15‐CV‐1057, \n2016 WL 3661106, at *6–7 (D. Conn. July 5, 2016). \n\n\n 19 \n\nin good faith.” 23 Williston on Contracts § 63:22 (4th ed. 2018). Richards has \n\ncome forth with no evidence to suggest that it did not. Although Richards \n\ncharges, for instance, that Direct Energy’s variable rate was “too high,” there is no \n\nevidence that it was any higher than its competitors’ rates. See Marcus Dairy, Inc. \n\nv. Rollin Dairy Corp., No. 05‐cv‐589, 2008 WL 4425954, at *9 (D. Conn. Sept. 24, 2008) \n\n(“To determine if a price is commercially reasonable[] it must be compared to the \n\nrange of other prices in the market.”). The factors influencing the variable rate \n\n(minimizing customer losses, reaching a target profit margin) are ordinary \n\nbusiness considerations. See id. at *7 (stating that merchants act in good faith \n\nwhen setting open price terms if they adhere to “reasonable commercial standards \n\nof fair dealing in the trade” (quoting U.C.C. § 2–305 cmt. 3 (Am. Law Inst. & Unif. \n\nLaw Comm’n 2017))). And Richards in fact seems to concede that all Connecticut \n\nprivate electricity suppliers “engag[e] in similar . . . pricing behavior,” which he \n\ninsistently labels “improper” while offering no coherent explanation (much less \n\nevidence) as to why this is so. Reply Br. 17 n.12. \n\n Richards counters that Direct Energy must have abused its discretion \n\nbecause the variable rate was higher than the PURA‐approved Standard Service \n\nRate. In his view, the Standard Service Rates, rather than Direct Energy’s private \n\n\n\n\n 20 \n\ncompetitors’ rates, are the proper comparators because Connecticut’s private \n\nelectricity suppliers are all “corrupt.” Reply 17 n.12. But it is worth pausing to \n\nconsider the implications of Richards’s argument. If we were to hold private \n\nelectricity suppliers liable for departing from the Standard Service Rates, we \n\nwould in effect make those PURA‐approved rates binding on private electricity \n\nsuppliers like Direct Energy. Yet the entire point of electricity deregulation was \n\nto allow the market, rather than PURA, to determine rates. 7 Richards’s near‐\n\nfrivolous contract claim provides no basis on which a court is authorized to \n\noverrule this policy choice. \n\n Richards’s accusation that Direct Energy violated the implied covenant of \n\ngood faith by “luring new customers . . . by offering low fixed teaser rates,” Pl.‐\n\nAppellant Br. 20, is equally unavailing. Richards may find this practice \n\nobjectionable, but he received exactly what he bargained for: after paying a fixed \n\nrate below the PURA‐approved Standard Service Rates for a fixed time, Richards \n\nwould pay a variable rate set at Direct Energy’s discretion. See 23 Williston on \n\nContracts § 63:22 (4th ed. 2018) (“[T]here can be no breach of the implied promise \n\n\n\n 7 Indeed, if Richards wanted to pay less than he would have paid under the \nStandard Service Rate, he could have chosen a contract with a “guaranteed savings” \nclause that promised just that. \n\n\n 21 \n\nor covenant of good faith and fair dealing where the contract expressly permits \n\nthe actions being challenged, and the defendant acts in accordance with the \n\nexpress terms of the contract.”). Richards voluntarily chose this contract after \n\nconsidering more than forty competitor options because he thought it was the best \n\navailable. He cannot allege breach of contract where, as here, Direct Energy \n\ndelivered to him precisely what he purchased. \n\n Richards’s contract claim is thus without merit. But even if this were not \n\nthe case, Richards still could not prevail. His argument is largely predicated on \n\nthe theory that Direct Energy unjustifiably unmoored its variable rate from Direct \n\nEnergy’s procurement costs. But Richards focuses exclusively on Direct Energy’s \n\npricing practices in 2014 and 2015, yet Richards left Direct Energy in 2013. For \n\nthe three months that Richards paid it, the variable rate and Direct Energy’s costs \n\nstayed constant, and the variable rate was only 2.36 cents per kWh higher than \n\nEversource’s PURA‐approved Standard Service Rate. Cf. 14 David M. Stahl & \n\nLisa M. Cipriano, Bus. & Com. Litig. Fed. Cts. § 143:35 (4th ed. 2017) (“[A] filed and \n\napproved rate is unassailable in judicial proceedings brought by customers.”). \n\nRichards would thus not be a proper plaintiff even if his legal theory had any \n\n\n\n\n 22 \n\nmerit, which it does not. We therefore affirm the district court’s grant of \n\nsummary judgment to Direct Energy on Richards’s contract claim. \n\n B \n\n The Connecticut Unfair Trade Practices Act (“CUTPA”) prohibits “unfair \n\nmethods of competition and unfair or deceptive acts or practices in the conduct of \n\nany trade or commerce.” Conn. Gen. Stat. § 42‐110b(a). Under CUTPA, “unfair \n\nmethods of competition,” “unfair . . . acts,” and “deceptive acts” are distinct \n\ncategories of wrongful conduct. See 12 Robert M. Langer, et al., Conn. Prac., Unfair \n\nTrade Practices § 2.3 (2017). Richards argues that Direct Energy’s variable rate \n\npricing was (1) deceptive, (2) a per se violation of CUTPA, and (3) unfair. \n\nRichards’s CUTPA claims are almost entirely duplicative of his contract claim. \n\nThey are also without merit, and we affirm the district court’s grant of summary \n\njudgment as to these claims. \n\n 1 \n\n “An act or practice is deceptive” under CUTPA if the defendant makes a \n\nmaterial representation or omission likely to mislead consumers who “interpret \n\nthe message reasonably under the circumstances.” Southington Sav. Bank v. \n\nRodgers, 668 A.2d 733, 736 (Conn. App. 1995) (quoting Caldor, Inc. v. Heslin, 577 \n\n\n\n\n 23 \n\nA.2d 1009, 1013 (Conn. 1990)). “The deception standard is objective in nature,” \n\nand a representation is deceptive only if it is “‘likely’ to mislead rather than merely \n\n[has] the ‘tendency or capacity’ to do so.” Langer, et al., supra, § 2.3 (quoting \n\nMatter of Cliffdale Assocs., Inc., 103 F.T.C. 110, 127 (1984) (Pertschuk, Comm’r, \n\nconcurring in part and dissenting in part)). A “failure to disclose can be \n\ndeceptive only if, in light of all the circumstances, there is a duty to disclose.” \n\nNormand Josef Enters., Inc. v. Connecticut Nat’l Bank, 646 A.2d 1289, 1307 (Conn. \n\n1994). \n\n Richards’s deception claim is identical to his contract claim. He contends \n\nthat “reasonable consumers” would likely interpret the Evergreen clause to mean \n\nthat the variable rate would reflect “the costs of procuring power . . . plus an \n\nappropriate margin to cover the legitimate costs and risks of supplying variable \n\nrate customers.” Reply Br. 4, 6 (quoting Confidential App. 44). But as explained \n\nabove, the contract unambiguously allowed Direct Energy to set the variable rate \n\nthe way it did. See Murphy v. Provident Mut. Life Ins. Co. of Philadelphia, 923 F.2d \n\n923, 929–30 (2d Cir. 1990) (holding, in a case predicated on deceptive advertising, \n\nthat “[n]o deception can exist where, as here, the parties’” representations are \n\n“clear[]”); see also Hinchliffe v. Am. Motors Corp., 471 A.2d 980, 988 (Conn. Super. \n\n\n\n\n 24 \n\nCt. 1982) (declining “to speculate that the public will place a patently absurd \n\ninterpretation” on a representation). Richards is also wrong, for the same reasons \n\ngiven above, when he claims that his experts’ views about the Evergreen clause \n\nraise a question of fact on this issue. Slapping the phrase “reasonable consumer” \n\ninto his argument does not change our earlier analysis in any way. See Fink v. \n\nTime Warner Cable, 714 F.3d 739, 741 (2d Cir. 2013) (“[A] court may determine as a \n\nmatter of law that an allegedly deceptive [representation] would not have misled \n\na reasonable consumer.”). \n\n Accepting Richards’s argument to the contrary would mean, in effect, that \n\nif Direct Energy wished to retain the discretion in a contract to set its variable rate \n\nbased on a range of business and market conditions, it was required to disclose \n\nevery factor influencing that variable rate. But CUTPA imposes no such duty. \n\nSee, e.g., Kenney v. Healey Ford‐Lincoln‐Mercury, Inc., 730 A.2d 115, 117 (Conn. App. \n\nCt. 1999) (holding that it is not a deceptive trade practice to fail to make certain \n\ndisclosures unless the defendant has a preexisting duty to do so). Connecticut, \n\nto be sure, requires consumer electricity contracts to explain “the rates that [] \n\ncustomer[s] will be paying, including the circumstances under which the rates \n\nmay change.” Conn. Gen. Stat. § 16‐245o(f)(2). But PURA determined that the \n\n\n\n\n 25 \n\nEvergreen clause met this standard when it renewed Direct Energy’s license. \n\nRequiring Direct Energy to define “business and market conditions” in greater \n\ndetail would override PURA’s certification. Cf. Mead v. Burns, 509 A.2d 11, 19 \n\n(Conn. 1986) (holding that CUTPA claims “that build[] upon the public policy \n\nembodied in specific statutory provisions . . . must be consistent with the \n\nregulatory principles established by the underlying statutes”). \n\n 2 \n\n Richards’s argument that Direct Energy’s variable rate pricing constituted a \n\nper se violation of CUTPA is equally unavailing. As discussed above, Connecticut \n\nrequires that “[e]ach contract for electric generation services [] contain all material \n\nterms of the agreement,” including “a clear and conspicuous statement explaining \n\nthe rates that [each] consumer will be paying” and “the circumstances under \n\nwhich the rates may change.” Conn. Gen. Stat. § 16‐245o(f)(2). An electric \n\ncompany that violates this provision commits a per se unfair or deceptive trade \n\npractice under CUTPA. Id. § 16‐245o(j). \n\n Richards contends that Direct Energy violated § 16‐245o(j) because it \n\n“misrepresented that it set its variable rate based on ‘business and market \n\nconditions’ when it did not.” Pl.‐Appellant Br. 46. But Richards assumes, yet \n\n\n\n\n 26 \n\nagain, that the Evergreen clause misrepresented Direct Energy’s pricing practices. \n\nWe have already rejected that view twice in this opinion. We thus affirm the \n\ndistrict court’s grant of summary judgment on Richards’s per se CUTPA claim. \n\n 3 \n\n Finally, Richards’s claim that Direct Energy’s variable rate pricing \n\nconstituted an unfair trade practice under CUTPA is also without merit. A trade \n\npractice is unfair under CUTPA if it (1) falls within “the penumbra of some \n\ncommon law, statutory, or other established concept of unfairness,” (2) is \n\n“immoral, unethical, oppressive, or unscrupulous,” or (3) “causes substantial \n\ninjury to consumers . . . .” Votto v. Am. Car Rental, Inc., 871 A.2d 981, 984–85 \n\n(Conn. 2005). The “substantial injury to consumers” prong covers conduct that \n\nis “substantial,” is not “outweighed by any countervailing benefits,” and causes \n\n“an injury that consumers themselves could not reasonably have avoided.” A‐G \n\nFoods, Inc. v. Pepperidge Farm, Inc., 579 A.2d 69, 77 (Conn. 1990) (emphasis \n\nremoved) (quoting Letter from Federal Trade Commission to Senators Ford and \n\nDanforth (Dec. 17, 1980)). \n\n Richards’s contentions do not come close to meeting this standard. Run‐\n\nof‐the‐mill statutory violations, torts, and contract breaches do not constitute \n\n\n\n\n 27 \n\nunfair trade practices. See Jacobs v. Healey Ford‐Subaru, Inc., 652 A.2d 496, 506 \n\n(Conn. 1995) (explaining that “the violation of a consumer statute” is not “an \n\nautomatic violation of CUTPA” unless a statute “expressly” makes it so); Ventres \n\nv. Goodspeed Airport, LLC, 881 A.2d 937, 970 (Conn. 2005) (declining to “convert \n\nevery trespass claim involving business property into a CUTPA claim”); \n\nMetromedia Energy, Inc. v. Mansei, Inc., No. CV136041399S, 2014 WL 7495054, at *4 \n\n(Conn. Super. Ct. Nov. 3, 2014) (holding that “an ordinary breach of the contract” \n\nwas not unfair under CUTPA). CUTPA thus prohibits only certain particularly \n\nabusive commercial practices. See, e.g., A‐G Foods, 579 A.2d at 77 n.9 (recognizing \n\nthe core of unfair practices as: “(1) withholding material information; (2) making \n\nunsubstantiated advertising claims; (3) using high‐pressure sales techniques; and \n\n(4) depriving consumers of various post‐purchase remedies” (quoting Am. Fin. \n\nServs. Ass’n v. F.T.C., 767 F.2d 957, 979 (D.C. Cir. 1985)); Votto, 871 A.2d at 985 \n\n(holding that charging credit cards without the cardholder’s authorization is \n\nunfair under CUTPA). \n\n The crux of Richards’s unfairness theory is, once more, his contention that \n\nDirect Energy breached the contract by failing to tie its variable rate to “business \n\nand market conditions,” which he interprets to mean procurement costs. See Pl.‐\n\n\n\n\n 28 \n\nAppellant Br. 28 (“Richards’[s] claim is that [Direct Energy] acted in an ‘unfair’ \n\nmanner by setting variable rates that violate the terms of its contract and do not \n\nfluctuate with ‘business and market conditions.’”). But a “simple contract breach \n\nis not sufficient to establish a violation of CUTPA, particularly where the count \n\nalleging CUTPA simply incorporates by reference the breach of contract claim.” \n\nBoulevard Assocs., 72 F.3d at 1039 (quoting Chaspek Mfg. Corp. v. Tandet, No. CV \n\n9309‐2714, 1995 WL 447948, at *12 (Conn. Super. Ct. June 16, 1995)). So even if \n\nRichards had made out a contract claim — and he has not — this central feature of \n\nhis CUTPA unfairness theory would be meritless. See Ramirez v. Health Net of Ne., \n\nInc., 938 A.2d 576, 591 (Conn. 2008) (holding that a defendant did not violate \n\nCUTPA when it “availed itself of the rights afforded under the plain and \n\nunambiguous terms of [an] agreement”). \n\n Richards argues that his unfairness claim extends further and does not turn \n\non his contract claim alone. Specifically, he objects to Direct Energy’s supposed \n\npractice of (1) “lur[ing]” consumers with “teaser‐rates,” and later (2) “goug[ing] \n\n[them] with variable rates” that (3) “consumers [do] not monitor.” Pl.‐Appellant \n\nBr. 44. In his view, these practices raise a question of fact as to whether Direct \n\n\n\n\n 29 \n\nEnergy’s pricing strategy was unfair. We consider each component of his \n\nargument in turn. \n\n First, offering a teaser rate is not against public policy, unethical, or \n\nsubstantially injurious on its own, especially when, as here, consumers can cancel \n\nthe contract whenever they like without paying any fee. See A‐G Foods, 579 A.2d \n\nat 77 (holding that a trade practice does not cause a substantial injury under \n\nCUTPA if a consumer could have reasonably avoided it). Richards himself is a \n\ncase in point as to why this is so: He chose to sign with Direct Energy because it \n\noffered the best fixed rate available. That saved him more than $100 over the \n\nStandard Service Rate during the first twelve months of his contract with Direct \n\nEnergy — hardly a “substantial injury.” Votto, 871 A.2d at 985. \n\n Second, Richards’s contention that the variable rates were so high that “no \n\nrational consumer” would voluntarily sign a variable rate contract, Reply Br. 5, is \n\nirrelevant for at least two reasons. First, he did not sign a variable rate contract; \n\nhe signed a fixed rate contract that rolled over into a variable rate after a set time. \n\nAs already noted, this at first saved him money, as compared to the Standard \n\nService Rate, and ultimately cost him only about $1.67 per month above the \n\nStandard Service Rate during his time with Direct Energy. And regardless, \n\n\n\n\n 30 \n\ncharging high prices does not on its own give rise to a CUTPA violation. See, e.g., \n\nBridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth., 566 F. Supp. 2d 81, \n\n105 (D. Conn. 2008) (Droney, J.) (“[T]he plaintiffs have not shown that the Port \n\nAuthority’s imposition of an excessive passenger fee is an unfair trade practice by \n\nthe preponderance of the evidence.”). Even Richards concedes as \n\nmuch — several times. See, e.g., Pl.‐Appellant Br. 43 (“It is true that pricing \n\npractices “alone” may not give rise to a CUTPA unfairness claim.”); id. at 45; Reply \n\nBr. 17. \n\n Richards’s unfair practices claim thus ultimately depends on his assertion \n\nthat charging a variable rate that “consumers [do] not monitor” is a violation of \n\nCUTPA. Pl.‐Appellant Br. 44. But he supplies no legal authority for this \n\nproposition. Presumably, what bothers Richards is that many Direct Energy \n\nconsumers pay the variable rate when their initial fixed‐rate periods expire, even \n\nthough leaving their contracts would likely save them money. See id. at 44 \n\n(asserting that “no reasonable consumer . . . would remain enrolled in a [Direct \n\nEnergy] variable rate plan”). But this is just an example of “status quo bias”: a \n\ngeneral tendency by people “to stick with their current situation.” Richard H. \n\nThaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and \n\n\n\n\n 31 \n\nHappiness 34 (2008). All sorts of companies design their business strategies with \n\nthe expectation that consumers act this way.8 Many magazines and gyms, for \n\nexample, offer initial discounts on subscriptions and membership on the \n\nassumption that they can make up the loss if customers either decide they like the \n\nproduct or, crucially, forget to cancel. 9 And Connecticut law is clear that \n\n\n\n 8 The core of the dissent’s unfairness argument is thus similarly meritless. \n“People are inertial” and “not attentive,” the dissent proclaims, Dissenting Op. at 7, 8, and \ntherefore Direct Energy has violated the law by “exploit[ing] those consumer \nvulnerabilities,” id. at 7 (citing Neil W. Averitt, The Meaning of “Unfair Acts or Practices” in \nSection 5 of the Federal Trade Commission Act, 70 Geo. L.J. 225 (1981)). But the only \n“vulnerability” that Direct Energy has purportedly “exploited” is our basic tendency to \nbe creatures of habit—a far cry from the targeting of traditionally “legally vulnerable” \ngroups like children, the insane, the seriously ill, the bereaved, or the physically \ndependent, see Averitt, 70 Geo. L.J. at 256. In our view, no reasonable jury could find \nthe former tactic unfair under the circumstances presented here. \n Nor can the dissent rely on the unfounded assertion that Direct Energy has \nengaged in “strategies to avoid alerting customers to their rising rates.” Dissenting Op. \nat 9. That charge is baseless. In a footnote, the dissent references a factual dispute \nabout whether Direct Energy mailed notices to its consumers to notify them that their \nfixed rate periods would soon expire. But whether Direct Energy took it upon itself to \nremind customers of the terms of the contracts that they themselves had willingly signed, \nnothing in the record suggests that Direct Energy erected any affirmative barriers to its \ncustomers exiting those contracts at will. We reject the dissent’s attempt to impose \nadditional affirmative duties under the aegis of CUTPA, a maneuver that Connecticut \ncourts have previously rejected. See Normand Josef Enters., 646 A.2d at 1307; Kenney, \n730 A.2d at 117. \n See, e.g., Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About \n 9\n\nHealth, Wealth, and Happiness 35 (2008) (“American Express wrote [Cass] Sunstein a \ncheerful letter telling him that he could receive, for free, three‐month subscriptions to five \nmagazines of his choice. Free subscriptions seem like a bargain, even if the magazines \nrarely get read, so Sunstein happily made his choices. What he didn’t realize was that \nunless he took some action to cancel his subscription, he would continue to receive the \n\n 32 \n\nwidespread business practices that are consistent with “common business norms” \n\ndo not violate CUTPA. Landmark Inv. Grp., LLC v. Calco Const. & Dev. Co., 60 A.3d \n\n983, 992 (Conn. App. 2013).10 It is therefore clear to us that Direct Energy’s pricing \n\nstrategy during the term of its relationship with Richards was not against public \n\npolicy, immoral, or substantially injurious. \n\n At bottom, Richards signed a contract guaranteeing him a below‐market \n\nrate, which he paid for twelve months. For three months after that, he paid \n\napproximately two cents above the PURA‐approved Standard Service Rate. He \n\nthen left the contract without penalty. Richards now asks us to invalidate a \n\nPURA‐approved contract that he chose after considering more than forty private \n\noptions and the PURA‐approved Standard Service Rate. And he does so while \n\n\n\n\nmagazines, paying for them at the normal rate. For about a decade, he has continued to \nsubscribe to magazines that he hardly ever reads.”). \n 10 In response, the dissent quotes a Connecticut Superior Court decision for the \nproposition that “[t]he fact that the defendant’s practice is standard in the industry . . . \ndoes not excuse it as a violation of CUTPA.” Dissenting Op. at 3 (quoting Halloran v. \nSpillane’s Servicenter, Inc., 41 Conn. Supp. 484, 500 (Conn. Super. Ct. 1990)). But this \ncomparison ignores the substantial daylight between a standard practice within a single \nindustry and common business norms across many industries. Halloran involved a \ntowing company’s refusal to release a vehicle owner’s personal possessions before \npayment of all fees connected with the towing service, id. at 488—apparently a common \npractice within the Connecticut towing business at the time, id. at 500. That conduct \nbears no analogy to quotidian pricing practices like Direct Energy’s, which have long \nbeen mainstream across numerous sectors of American commerce. \n\n\n 33 \n\nconceding that Direct Energy’s pricing practices were akin to those of its \n\ncompetitors. See Reply Br. 17 n.12 (characterizing the private electricity market \n\nas a “corrupt industr[y]”). But Connecticut chose to deregulate consumer \n\nelectricity ratemaking, not transfer that authority from a public utility commission \n\nto the after‐the‐fact judgments of courts interpreting CUTPA. See Mead, 509 A.2d \n\nat 19 (holding that CUTPA claims “that build[] upon the public policy embodied \n\nin specific statutory provisions . . . must be consistent with the regulatory \n\nprinciples established by the underlying statutes”); see also Conn. Gen. Stat. § 42‐\n\n110c (prohibiting suits under CUTPA for “actions otherwise permitted under law \n\nas administered by any regulatory board”). We therefore conclude that \n\nRichards’s CUTPA claim is without merit and that the district court’s partial grant \n\nof summary judgment as to this claim should be affirmed. \n\n II \n\n Richards next challenges the district court’s dismissal of his unjust \n\nenrichment and Massachusetts state law claims. We review de novo a district \n\ncourt’s dismissal on the pleadings, “accepting all factual allegations as true and \n\ndrawing all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. \n\nEng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “To \n\n\n\n\n 34 \n\nsurvive a motion to dismiss, a complaint must contain sufficient factual matter, \n\naccepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft \n\nv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, \n\n570 (2007)). \n\n A \n\n The district court held that Richards failed to state a claim for unjust \n\nenrichment because he signed a contract with Direct Energy. See also Meaney v. \n\nConnecticut Hosp. Ass’n, Inc., 735 A.2d 813, 823 (Conn. 1999) (“[A]n express contract \n\nbetween the parties precludes recognition of an implied‐in‐law contract governing \n\nthe same subject matter.” (quoting 1 E. Farnsworth, Contracts § 2.20 (2d ed. 1998)). \n\nRichards contends that this was error. He agrees with the district court that he \n\nand Direct Energy had an enforceable contract in principle. But he argues in the \n\nalternative that if this contract did not “prevent [Direct Energy’s] predatory \n\nconduct, then the contract [was] illusory[,] and [he] is entitled to recovery under \n\nunjust enrichment.” Reply Br. 31–32. We disagree. \n\n The contract was not illusory. The implied covenant of good faith and fair \n\ndealing obliged Direct Energy to act in good faith when it set the variable rate, and \n\n“good faith is enough to avoid the finding of an illusory promise.” Sicaras v. City \n\n\n\n\n 35 \n\nof Hartford, 692 A.2d 1290, 1297 (Conn. App. Ct. 1997) (quoting 2 A. Corbin, \n\nContracts § 5.28 (Rev. Ed. 1995)). Because Richards and Direct Energy had a \n\nbinding contract, Richards could not plead an unjust enrichment claim. We \n\ntherefore affirm the district court on this issue. \n\n B \n\n Finally, we turn to Richards’s unfair trade practices claims under \n\nMassachusetts law. The district court dismissed these claims for lack of Article \n\nIII standing because Richards was not injured in Massachusetts. This was error. \n\nA plaintiff has Article III standing if he suffered (1) an injury, (2) caused by the \n\ndefendant that (3) would be redressed by a favorable judicial decision. See, e.g., \n\nMahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). There is no question \n\nthat Richards satisfies this standard: he was (1) charged money, (2) by Direct \n\nEnergy, and (3) seeks recompense for this charge. To be sure, whether a statute \n\ngrants a plaintiff a cause of action will often turn on where the tortious conduct \n\noccurred. See, e.g., Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254 (2010) \n\n(“[T]o ask what conduct [a statute] reaches is to ask what conduct [that statute] \n\nprohibits, which is a merits question.”). But “the absence of a valid . . . cause of \n\naction does not implicate” Article III standing. Lexmark Int’l, Inc. v. Static Control \n\n\n\n\n 36 \n\nComponents, Inc., 572 U.S. 118, 128 n.4 (2014) (quoting Verizon Md., Inc. v. Pub. Serv. \n\nComm’n of Md., 535 U.S. 635, 642–43 (2002)). \n\n We still affirm the district court’s dismissal of Richards’s Massachusetts \n\nclaims, however, because dismissal was proper under Federal Rule of Civil \n\nProcedure 12(b)(6). See Sharkey v. Quarantillo, 541 F.3d 75, 92 (2d Cir. 2008) \n\n(“Although the district court erroneously dismissed the action pursuant to Rule \n\n12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise \n\nproper based on failure to state a claim under Federal Rule of Civil Procedure \n\n12(b)(6).” (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. \n\nCir. 1997)). Here, Richards failed to state a claim because Massachusetts does not \n\ngive plaintiffs a cause of action for unfair or deceptive acts that “occur[] outside” \n\nMassachusetts. Skyhook Wireless, Inc. v. Google Inc., 19 N.E.3d 440, 449 (Mass. \n\nApp. Ct. 2014). Beyond this statutory hurdle, the United States Constitution \n\nwould also bar Massachusetts from regulating, via consumer protection law, the \n\nrates that Direct Energy charged consumers in Connecticut. See, e.g., Baldwin v. \n\nG.A.F. Seelig, Inc., 294 U.S. 511, 528 (1935) (holding that the Dormant Commerce \n\nClause prohibits one state from “establish[ing] . . . a scale of prices for use in other \n\nstates”); see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421 (2003) \n\n\n\n\n 37 \n\n(holding that a state may not “punish a defendant for conduct that may have been \n\nlawful where it occurred”). \n\n Richards does not challenge any of this on appeal but instead argues that he \n\nhas “‘class standing’ . . . to assert claims on behalf of” Direct Energy’s Massachusetts \n\ncustomers, even if he cannot personally assert any claims under Massachusetts law. \n\nNECA‐IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 158 (2d \n\nCir. 2012). But the district court’s August 4, 2015 decision was not to the contrary. \n\nThe court held merely that Richards could not sue on his own behalf under \n\nMassachusetts law; it did not opine on whether a plaintiff asserting claims under \n\nConnecticut law could represent a class of consumers asserting claims under \n\nMassachusetts law. The court never had cause to reach the latter issue because it \n\nnever addressed the issue of class certification. Instead, it dismissed Richards’s \n\nmotion for certification as moot in March 2017 because he no longer had any viable \n\nclaims under Connecticut law. Richards does not challenge this dismissal on \n\nappeal. \n\n Accordingly, we have no occasion to address whether Article III would have \n\nprevented Richards from representing a class of plaintiffs with claims under \n\nMassachusetts law. But see Langan v. Johnson & Johnson Consumer Companies, Inc., \n\n\n\n\n 38 \n\nNo. 17‐1605, 2018 WL 3542624, at *6 (2d Cir. July 24, 2018) (holding that “whether \n\na plaintiff can bring a class action under the state laws of multiple states is a \n\nquestion of predominance under Rule 23(b)(3), not a question of standing under \n\nArticle III”). We therefore affirm the district court’s August 4, 2015 partial \n\ndismissal as to the Massachusetts claims. \n\n CONCLUSION \n\n We have considered each of Richards’s remaining arguments and have \n\ndetermined them to be without merit. Accordingly, the judgment of the district \n\ncourt is AFFIRMED. \n\n\n\n\n 39\n[END_CASE]",
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4,587,416 | Velarde v. GW GJ, Inc. | 2019-02-05 | 17-330 | U.S. Court of Appeals for the Second Circuit | {"judges": "B e f o r e : CABRANES AND CARNEY, Circuit Judges, and CAPRONI, District Judge.", "parties": "", "opinions": [{"author": "SUSAN L. CARNEY, Circuit Judge:", "type": "010combined", "text": "17-330\nVelarde v. GW GJ, Inc., et al.\n\n\n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n ______________ \n \n August Term, 2017 \n \n (Argued: March 8, 2018 Decided: February 5, 2019) \n \n Docket No. 17‐330 \n ______________ \n \n PATRICK VELARDE, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY \n SITUATED, \n \n Plaintiff‐Appellant, \n \n –v.– \n \n GW GJ, INC. D/B/A THE SALON PROFESSIONAL ACADEMY OF BUFFALO, \n MARGARET GRENAUER, AND PAUL GRENAUER, \n \n Defendants‐Appellees. \n ______________ \n \nB e f o r e : \n \n CABRANES AND CARNEY, Circuit Judges, and CAPRONI, District Judge.* \n \n ______________ \n \n Plaintiff‐appellant Patrick Velarde sued The Salon Professional Academy of \nBuffalo and its owners, Margaret Grenauer and Paul Grenauer, (collectively, “the \nAcademy”) in the United States District Court for the Western District of New York \n\n \n\n Judge Valerie E. Caproni, of the United States District Court for the Southern District of New \n*\n\nYork, sitting by designation. \n\n \n\f \n\n(Skretny, J.) for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et \nseq. (“FLSA”), and Articles 6 and 19 of the New York labor law, N.Y. Lab. Law §§ 190, \n650 et seq. Velarde alleges that, as a part of his vocational training at the Academy for \nbecoming a licensed beautician, he was required to perform cosmetology services \nwithout compensation in the Academy’s student salon. He argues that the requirement \nviolated FLSA and New York labor law. The District Court granted judgment on the \npleadings to the Academy, reasoning under the test that we established in Glatt v. Fox \nSearchlight Pictures, Inc., 811 F.3d 528, 536‐537 (2d Cir. 2015), that Velarde was the \n“primary beneficiary” of his relationship with the Academy and therefore not an \n“employee” of the Academy for the purposes of both FLSA and New York labor law. \nOn de novo review, we agree with the District Court’s analysis and AFFIRM its award \nof judgment to the Academy. \n \n AFFIRMED. \n ______________ \n \n ROBERT WISNIEWSKI, ESQ., New York, NY, for Plaintiff‐\n Appellant. \n \n JAMES W. GRABLE, JR. (Terrence M. Connors on the brief), \n Connors LLP, Buffalo, NY, for Defendants‐Appellants. \n ______________ \n\nSUSAN L. CARNEY, Circuit Judge: \n\n In Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015), we addressed \n\nthe application of certain federal and state employment laws to activities performed in a \n\ncommercial setting by temporary “interns.” We applied a “primary beneficiary” test: if, \n\nunder certain enumerated circumstances, the intern is the “primary beneficiary” of the \n\nrelationship, then the host entity is not the intern’s employer and has no legal obligation \n\nto pay compensation under those laws; if, on the other hand, the host entity is the \n\n“primary beneficiary” of the relationship, then the entity is an employer and federal \n\nand state employment laws—in particular, the Fair Labor Standards Employment Act, \n\n\n 2 \n \n\f \n\n29 U.S.C. §§ 201 et seq. (“FLSA”), and Articles 6 and 19 of the New York Labor Law \n\n§§ 190, 650 et seq. (“NYLL”)—impose compensation obligations. \n\n In the case at bar, we consider the applicability of this test to individuals enrolled \n\nin a for‐profit vocational academy who are preparing to take a state licensure \n\nexamination and who must first fulfill state minimum training requirements. These \n\nindividuals fulfill those requirements by working under Academy supervision for a \n\ndefined number of hours, without pay. We determine that the Glatt test governs in the \n\nfor‐profit vocational training context, and we further conclude that here, the plaintiff, \n\nformer student of the Academy was the primary beneficiary of the relationship, thus \n\nexcusing the latter from potential compensation obligations under FLSA or NYLL \n\nrelated to plaintiff’s limited work there as a trainee. \n\n\n BACKGROUND1 \n\n On April 18, 2011, desiring to become a cosmetologist in New York state,2 Patrick \n\nVelarde enrolled in the Academy, a for‐profit cosmetology training school operated by \n\n \n\n1 We review de novo a district court’s decision under Federal Rule of Civil Procedure 12(c) to \ngrant a defendant’s motion for judgment on the pleadings. In doing so, we accept all factual \nallegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. L‐\n7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). In addition to the facts alleged \nin the complaint, we consider the defendants’ answer, any written documents attached to the \ncomplaint or the answer, any document that is incorporated by reference into the complaint, \nany document that is “integral” to the complaint, and any matter of which the court may take \njudicial notice. Id. at 422. We have identified no material conflicts in the parties’ accounts. \nAlthough the parties do dispute whether, when enrolling, Velarde was aware that he would \nhave to work in the Salon without pay to graduate, see Am. Compl. ¶ 46, App’x 17, Velarde \nundisputedly knew that the program included a practical component, and so we consider the \ndispute immaterial to our resolution of the appeal. \n\n2 The New York State Division of Licensing Services advises that “cosmetology” means: \n 3 \n \n\f \n\nthe individual defendants and located in the City of Tonawanda, in Erie County, New \n\nYork. On November 16 of that year, he finished the Academy’s program, having \n\nsuccessfully completed what the Academy’s diploma describes as a “1000 hour course \n\nof study in [c]osmetology [a]pproved by the state of New York.” App’x 96. The \n\nAcademy’s course included both classroom instruction and supervised practical \n\nexperience in its student salon (the “Salon”), in which members of the public could \n\nreceive cosmetology services and the Academy’s students could practice and refine \n\ntheir skills. Velarde provided such services, under supervision, as generally described \n\nby his enrollment agreement and course catalogue. \n\n Having become a licensed cosmetologist in 2012, Velarde sued the Academy for \n\nunpaid wages in 2014—three years after completing the program. He alleged that the \n\nAcademy violated FLSA and several sections of NYLL by failing to pay him for the \n\nwork that he did in the Salon while he was enrolled at the Academy. In his operative \n\ncomplaint,3 he charged that, “under the terms of the students’ enrollment agreement,” \n\nhe and all students enrolled in the Academy were unlawfully required to work without \n\n \n\n providing services to the hair, head, face, neck or scalp of a human being, \n including but not limited to shaving, trimming, and cutting the hair or beard \n either by hand or mechanical appliances and the application of antiseptics, \n powders, oils, clays, lotions or applying tonics to the hair, head, or scalp, and \n in addition includes providing, for a fee or any consideration or exchange, \n whether direct or indirect, services for the application of dyes, reactive \n chemicals, or other preparations to alter the color or to straighten, curl, or alter \n the structure of the hair of a human being. \n\nhttps://www.dos.ny.gov/licensing/cosmetology/cosmetology.html (last visited Jan. 9, 2019); see \nalso N.Y. Gen. Bus. Law § 400(7). \n\n Velarde filed his original complaint on August 22, 2014, and filed an amended complaint on \n3\n\nAugust 26, 2014. References to the “complaint” in this opinion are to the amended complaint. \n 4 \n \n\f \n\npay in the Salon as part of their course of instruction. Am. Compl. ¶ 4, App’x 8; \n\nEnrollment Agt., App’x 98. After finishing eight weeks in the classroom, Velarde \n\nworked at the Salon, logging 34 unpaid hours per week for 22 weeks and practicing \n\nunder the supervision of licensed practitioners. During those 22 weeks, he performed \n\n“barbering and hair styling, skin and body treatments, [and] manicure and pedicure \n\nservices,” for the public. Am. Compl. ¶¶ 4, 19, App’x at 8, 11. He and other Academy \n\nstudents were also obligated to perform janitorial and clerical work at the Salon. \n\nStudents in the Salon segment of the vocational program were further required, he \n\ncomplains, to provide “whatever cosmetological service was demanded by a customer”: \n\nthey could not “choose what services they wanted or needed additional training in.” \n\nAm. Compl. ¶ 37(c), App’x at 15. Velarde sought relief both on his own behalf and on \n\nbehalf of other former and present students. \n\n For Salon services, the Academy charges clients “discounted prices,” with prices \n\n“vary[ing] according to student [skill] level.” Am. Compl. ¶¶ 25‐26, App’x 12. The \n\nSalon’s rates are lower than those of nearby salons employing only cosmetologists who \n\nare already licensed. The Academy—which is, as mentioned, a for‐profit enterprise—\n\nderives some of its revenues from the fees paid by the Salon’s clients. Velarde would \n\nreceive tips for his work, but any gratuities were nominal in amount. The Academy also \n\nderives revenue directly from students, of course: over the course of his thirty‐week \n\ncourse of study, Velarde paid the Academy $12,823 for “tuition, books, kits, and other \n\nfees.” Am. Compl. ¶ 18, App’x 10. \n\n To offer commercial cosmetology services in New York, an individual must \n\nobtain and maintain a State cosmetology license. N.Y. Comp. Codes R. & Regs. tit. 19, \n\n§ 160.2. New York requires license applicants to have completed 1,000 hours of \n\n\n 5 \n \n\f \n\ncoursework in defined subject areas, including safety and health, hair styling, and nail \n\ncare. Id. § 162.4. Aspiring cosmetologists must also pass the state’s licensure \n\nexamination, which has both written and practical components. N.Y. Gen. Bus. Law \n\n§§ 406(2)(b), 407(1). \n\n In his suit, Velarde sought unpaid hourly minimum wages including tips and \n\novertime for his work in the Salon. He contended that, for purposes of FLSA and NYLL, \n\nhe and other Academy students were employees of the Academy while they performed \n\nservices in the Salon.4 In 2016, after the Academy filed its Answer, the assigned \n\nMagistrate Judge (Schroeder, Jr., M.J.) filed a report and recommendation concluding \n\nthat the Academy’s motion for judgment on the pleadings should be granted. In a 2017 \n\ntext order, the District Court rejected Velarde’s objections, accepted the Magistrate \n\nJudge’s report and recommendation, and entered judgment for the Academy. \n\n This appeal followed. \n\n\n DISCUSSION \n\n We review de novo a district court’s decision awarding judgment on \n\nthe pleadings. Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015). \n\n The federal Fair Labor Standards Act requires, among other things, that \n\nemployers pay “[e]mployees engaged in commerce” an hourly minimum wage. 29 \n\nU.S.C. § 206(a). Similarly, the New York Labor Law requires state employers to pay \n\n\n\n \n\n4 Velarde also pursued a claim for quantum meruit against the Academy in the district court \nproceedings. The District Court dismissed that claim. On appeal, Velarde has withdrawn his \nchallenge to the dismissal, and we therefore treat the challenge as waived. \n 6 \n \n\f \n\ntheir “employees” a set minimum wage.5 N.Y. Lab. Law § 652. As described above, \n\nVelarde’s action calls for us to decide whether students at a for‐profit vocational school \n\ncompleting state‐mandated training hours in preparation for (and to qualify for) a state \n\nlicensure exam are correctly treated as “employees” of their respective schools with \n\nrespect to the “work” that they do as they are training. \n\n We have observed elsewhere that FLSA and NYLL define “employee” in “nearly \n\nidentical terms.” Glatt, 811 F.3d at 534. Accordingly, “we construe the NYLL definition \n\nas the same in substance as the definition in the FLSA.”6 Id. FLSA’s definition of \n\n“employee,” however, is far from a model of clarity: it offers the unenlightening \n\ntautology that an “employee” is an “individual employed by an employer.” 29 U.S.C. \n\n§ 203(e)(1). FLSA advises further that to “employ” means “to suffer or permit to work.” \n\nId. § 203(g). \n\n On de novo review, we first conclude that the District Court was correct to \n\nanalyze whether Velarde was an “employee” of the Academy by using the “primary \n\nbeneficiary” test established in Glatt. Applying that test, we then determine that Velarde \n\nwas not an employee of the Academy when enrolled there and working in the Salon, \n\nbecause he was the primary beneficiary of his relationship with the Academy, including \n\nwith respect to his work in the Salon. \n\n\n\n\n \n\n NYLL sets its minimum hourly wage at an amount higher than FLSA’s floor. See N.Y. Lab. \n5\n\nLaw § 652. \n\n The parties do not dispute that our resolution of Velarde’s FLSA claim is dispositive of his \n6\n\nNYLL claim. \n 7 \n \n\f \n\nI. Primary beneficiary test \n\n In Glatt, we considered the employment status of unpaid interns who “were \n\nenrolled in or had recently completed a formal course of post‐secondary education” and \n\nwho were working temporarily in a commercial concern. 811 F.3d at 537. As we \n\nobserved there and have observed in the past, the concept of “employment”—pivotal to \n\nFLSA’s application—is “a flexible [one] to be determined on a case‐by‐case basis by \n\nreview of the totality of the circumstances” while emphasizing the “economic reality” of \n\nthe parties’ relationships. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 141–42 \n\n(2d Cir. 2008); see also Glatt, 811 F.3d at 536. \n\n We looked for guidance to the Supreme Court’s decision in Walling v. Portland \n\nTerminal Co., 330 U.S. 148 (1947). There, the Supreme Court instructed that FLSA, \n\nenacted in 1938, “covers trainees, beginners, apprentices, or learners if they are employed \n\nto work for an employer for compensation.” Id. at 151 (emphasis added). The Court \n\ncautioned, however, that “a person whose work serves only his own interest” does not \n\nnecessarily become “an employee of another person who gives him aid and \n\ninstruction.” Id. at 152. \n\n The Portland Terminal decision addressed whether unpaid “trainees” in a \n\nrailroad’s program for prospective brakemen were employees for FLSA minimum wage \n\npurposes. 330 U.S. at 149–50. The “course of practical training” that constituted the \n\nrailroad’s program had the following features: \n\n If accepted for the training course, an applicant is [assigned] \n to a yard crew for instruction. Under this supervision, he first \n learns the routine activities by observation, and is then \n gradually permitted to do actual work under close scrutiny. \n His activities do not displace any of the regular employees, \n\n 8 \n \n\f \n\n who do most of the work themselves and must stand \n immediately by to supervise whatever the trainees do. The \n applicant’s work does not expedite the company business, but \n may, and sometimes does, actually impede and retard it. \n\nId. An applicant who successfully completed the weeklong training course would be \n\nadded to the list of potential hires “from which the company can draw when their \n\nservices are needed.” Id. at 150. The Court commented that, “[h]ad these trainees taken \n\ncourses in railroading in a public or private vocational school, wholly disassociated \n\nfrom the railroad, it could not reasonably be suggested that they were employees of the \n\nschool.” Id. at 152–53. Reasoning that FLSA “was not intended to penalize railroads for \n\nproviding, free of charge, the same kind of instruction at a place and in a manner which \n\nwould most greatly benefit the trainees,” id. at 153, the Court concluded that the \n\ntrainees were not railroad employees. \n\n Distilling the import of Portland Terminal in the context of interns temporarily \n\nperforming work in a commercial enterprise, we held in Glatt that “the proper question \n\n[with respect to a purported ‘employment’ relationship] is whether the intern or the \n\nemployer is the primary beneficiary of the relationship.” Glatt, 811 F.3d at 536. We \n\nhighlighted several salient features of the “primary beneficiary” test: under it, we \n\nconsider “what the intern receives in exchange for his work”; we “accord[] courts the \n\nflexibility to examine the economic reality as it exists between the intern and the \n\nemployer”; and we acknowledge the complexities of relationships involving “the \n\nexpectation of receiving educational or vocational benefits that are not necessarily \n\nexpected with all forms of employment.” Id. \n\n Velarde argues that the District Court erred in applying Glatt’s primary \n\nbeneficiary test in his situation because he was not an “intern”; in his view, the District \n\n 9 \n \n\f \n\nCourt should have focused solely on what he identifies as the economic reality of his \n\nrelationship with the Academy. Velarde contends that one need ask only whether the \n\nputative employer received an “immediate advantage” from a putative employee’s \n\nwork to define the “economic reality” of this relationship. From this, he argues that the \n\nAcademy must have been his “employer” because it derived revenue by providing \n\nVelarde’s services to the public; any training that Velarde received and the skills that he \n\ndeveloped by virtue of his supervised work experiences in the Salon are, in Velarde’s \n\nview, besides the point. \n\n As Velarde points out, it is true that in Portland Terminal the Supreme Court \n\ncounted as one factor relevant to its holding that the railroad received no “immediate \n\nadvantage” from the trainees’ work. Portland Terminal, 330 U.S. at 153. As we explained \n\nin Glatt, however, Portland Terminal does not imply that FLSA renders any organization \n\nthat receives some immediate benefit from unpaid labor an “employer” of the \n\nindividual from which the benefit is derived. See Glatt, 811 F.3d at 535–36 (rejecting \n\n“immediate advantage” test in favor of “primary beneficiary” analysis). We agree with \n\nVelarde that the benefits gained by the Academy from his time in the Salon are relevant \n\nto determining whether it “employed” Velarde for FLSA purposes, but those benefits \n\nare only one factor among several that properly bear on our analysis. \n\n In Glatt and in subsequent decisions, we have described the primary beneficiary \n\ntest as a “way to distinguish employees from bona fide interns.” Xuedan Wang v. Hearst \n\nCorp., 877 F.3d 69, 72 (2d Cir. 2017). We conclude here that the test is equally suitable for \n\ndistinguishing between “employees” and “bona fide students” of vocational schools or \n\nvocation‐related programs (such as a training salon) where trainees acquire necessary \n\nskills by practicing their craft in a real‐world setting. Like interns, vocational students \n\n\n 10 \n \n\f \n\nenter a course of study with “the expectation of receiving educational or vocational \n\nbenefits that are not necessarily expected with all forms of employment.” Glatt, 811 F.3d \n\nat 536. The primary beneficiary test allows courts to measure the extent to which the \n\nschool meets these expectations against the economic benefits received by the school in \n\nthe form of free labor. As with interns, disentangling the threads of a complex economic \n\nfabric and teasing out the respective benefits garnered by students and their commercial \n\ntraining programs is key to determining whether, for FLSA purposes, a trainee is \n\nserving primarily as an employee of that school or training program—or is primarily a \n\nstudent. \n\n We therefore conclude that the District Court was correct to apply the primary \n\nbeneficiary test in determining whether Velarde was a student or an employee of the \n\nAcademy. \n\n\nII. Velarde was the primary beneficiary of his relationship with the Academy \n\n As set forth above, the primary beneficiary test seeks to assess the relative \n\ndominance in the relationship between host institution and the individual claiming \n\nemployee status of (1) the benefits of a relationship to the individual, (2) the benefits \n\nderived from that relationship by the putative employer, and (3) the expectations of the \n\nparties. In Glatt, we listed several considerations that may, with others, be useful in \n\ndetermining which party is the “primary” beneficiary of a relationship considering the \n\ntotality of the circumstances.7 Several of the Glatt factors are less telling in the vocational \n\n\n \n 7 In Glatt, we enumerated the following seven factors as relevant to the determination: \n\n 1. The extent to which the intern and the employer clearly \n understand that there is no expectation of compensation. Any \n 11 \n \n\f \n\nschool context, where students would seem less likely to expect a paid position with the \n\nschool after they graduate than an intern at a commercial enterprise for whom a \n\nprofessional position might be a goal. In addition, at a vocational school, the program is \n\nby definition tied to some form of an academic calendar (see factor 4, in the margin), \n\nwith students receiving course credit for their work. \n\n Others of the Glatt factors, however, provide insight for determining which party \n\nis the primary beneficiary of the vocational school relationship—a determination that is \n\nlikely to vary in different school settings and possibly in different state regulatory \n\n \n promise of compensation, express or implied, suggests that the \n intern is an employee—and vice versa. \n 2. The extent to which the internship provides training that would \n be similar to that which would be given in an educational \n environment, including the clinical and other hands‐on training \n provided by educational institutions. \n 3. The extent to which the internship is tied to the intern’s formal \n education program by integrated coursework or the receipt of \n academic credit. \n 4. The extent to which the internship accommodates the intern’s \n academic commitments by corresponding to the academic \n calendar. \n 5. The extent to which the internship’s duration is limited to the \n period in which the internship provides the intern with beneficial \n learning. \n 6. The extent to which the intern’s work complements, rather than \n displaces, the work of paid employees while providing significant \n educational benefits to the intern. \n 7. The extent to which the intern and the employer understand that \n the internship is conducted without entitlement to a paid job at the \n conclusion of the internship. \n\nGlatt, 811 F.3d at 536–37. We acknowledged that the list was non‐exhaustive. Id. \n 12 \n \n\f \n\nenvironments. For example, a vocational school is more likely to be found to “employ” \n\nits students if it does not have a “formal education program” with “integrated \n\ncoursework,” and instead exclusively requires students to perform tasks that are the \n\nsame as those done by regularly compensated employees. (See Glatt factor 3.) Similarly, \n\na vocational school that runs a training program whose duration far exceeds “the period \n\nin which the [program] provides the [student] with beneficial learning” may well be the \n\nprimary beneficiary of that relationship. (See Glatt factor 5.) See also Marshall v. Baptist \n\nHosp., Inc., 668 F.2d 234, 236 (6th Cir. 1981) (students are employees subject to FLSA \n\nwhere “the clinical training program was seriously deficient in supervision, and . . . the \n\nstudents continued to perform clerical chores long after the educational value of that \n\nwork was over”). The state licensing requirements may often serve as strong evidence \n\nof the amount of practical training necessary for a student to become a competent \n\nprofessional, but will not always be determinative.8 \n\n We provide these examples and counter‐examples not to limit future courts’ \n\nconsideration of some or all of the Glatt factors in particular circumstances, but to make \n\nplain that courts may reasonably give more weight to some considerations over others \n\nwhen applying the primary beneficiary test to vocational schools and their students. \n\n Here, evaluating the totality of the circumstances presented by the parties’ \n\npleadings and keeping in mind that the goal of the primary beneficiary test is to balance \n\nflexibly the benefits received by the student and the economic realities of the student‐\n\n \n\n8 See Meredith Kolodner & Sarah Butrymowicz, A $21,000 Cosmetology School Debt, and a $9‐an‐\nHour Job, N.Y. Times, Dec. 26, 2018, at \nhttps://www.nytimes.com/2018/12/26/business/cosmetology‐school‐debt‐iowa.html (last visited \nJan. 9, 2019) (describing widely varying state requirements for the number of school hours for a \ncosmetology license and efforts by for‐profit schools to prevent their reduction). \n 13 \n \n\f \n\nentity relationship, Glatt, 811 F.3d at 536, we have little difficulty in concluding that \n\nVelarde was the primary beneficiary of his relationship with the Academy and was not \n\nan employee of the Academy for FLSA and NYLL purposes. \n\n Several observations are key to our reasoning. \n\n To begin, Velarde obtained significant benefits from his work in the Academy’s \n\nSalon: he was required to complete 1,000 hours of coursework in specific practical areas \n\nto qualify for taking the cosmetology license examination. See N.Y. Comp. Codes R. & \n\nRegs. tit. 19, § 162.4. We find it meaningful that the Academy required that Velarde \n\ncomplete not more than, but exactly the number of hours required by the state of New \n\nYork to qualify for licensure (some of it classroom instruction, the bulk of it providing \n\nservices in the Salon). Of those hours spent in the Salon, Velarde performed services \n\nunder the supervision of the Academy’s instructors. Velarde makes no allegation that \n\nthe Academy failed in this supervision to prepare him for either the practical or written \n\ncomponent of the licensing exam. Nor does he claim that his hands‐on experience in the \n\nSalon was unrelated to his formal classroom instruction. \n\n To rebut the inference that we draw, Velarde suggests, rather, that he should \n\nhave been allowed to allocate his time differently among the various areas of study that \n\nthe school required and that he should have been able to avoid performing clerical and \n\njanitorial work that he views as without instructional benefit to him. But “practical skill \n\nmay entail practice, and a [student] gains familiarity with an industry by day to day \n\nprofessional experience” that may include relatively menial or repetitive tasks. Wang, \n\n877 F.3d at 74 (concluding that interns received “beneficial learning” even when \n\nperforming “repetitive or similar tasks”); see also Schumann v. Collier Anesthesia, P.A., 803 \n\nF.3d 1199, 1213 (11th Cir. 2015) (“[T]he mere fact that an employer obtains a benefit \n\n 14 \n \n\f \n\nfrom providing a clinical [program] does not mean that the employer is the ‘primary \n\nbeneficiary’ of the relationship.”). That a vocational school does not provide the optimal \n\nlearning experience for a student does not necessarily transform it into the primary \n\nbeneficiary of the relationship. This is especially so where the school (as did the \n\nAcademy here) provides a state‐accredited course of vocational study, requires no more \n\nthan the number of hours specified by the state, the state’s required numbers of hours \n\nare not challenged as unreasonable, see n. 8, supra, and the school adequately prepares \n\nstudents for that state’s licensure exam (as it did for Velarde). See Benjamin v. B & H \n\nEduc., Inc., 877 F.3d 1139, 1147 (9th Cir. 2017) (students not FLSA employees where \n\n“clinical work allowed students to clock the hours they needed to sit for the state \n\nlicensing exams”). \n\n Furthermore, although Velarde faults the Academy for charging customers fees \n\nfor his cosmetological services that exceeded the Academy’s relevant operating costs (as \n\nhe calculated them), the Academy has no obligation not to turn a reasonable profit on \n\nits operations. The Academy’s enrollment agreement and catalogue advised that \n\ncoursework would include both classroom and practical or “salon area” components, \n\nand Velarde was aware that he would pay the Academy, a for‐profit entity, for his \n\nparticipation in both components, as necessary for him to meet New York’s licensure \n\nrequirements.9 Velarde emphasizes that his 748 hours of unpaid work in the Salon, Am. \n\n \n\n9 Velarde offered conclusory allegations related to his now‐abandoned quantum meruit claim, \nsee n. 4, supra, that he “had a reasonable expectation of receiving payment at an appropriate \nwage rate for the hours [he] worked for Defendants,” Am. Compl. ¶ 69, App’x 21. The only \nallegation that he made in support of the objective reasonableness of any such expectation, \nhowever, was that the Academy “never told [him that] . . . [he] would be forced to work \nwithout pay,” Am. Compl. ¶ 46, App’x 17. This allegation, however, misses the point: Velarde \ndoes not allege that the Academy told him that he would be paid for his time in the Salon. We \n 15 \n \n\f \n\nCompl. ¶ 4, App’x 8, provided an “immediate advantage” to the Academy (in the form \n\nof no‐cost labor in a for‐profit setting), but he does not assert that he replaced paid \n\nemployees at the Academy. Rather, he argues that his lower‐cost labor allowed the \n\nAcademy’s Salon to better compete in the marketplace, strengthening the Academy’s \n\nrevenues and not providing commensurate educational benefit to him. \n\n It is undoubtedly true that the Academy—a for‐profit institution—derived \n\nfinancial value from Velarde’s work in the Salon. That Velarde provided “tangible \n\nbenefits” to the Academy in this way (and in addition to his tuition payments) is not \n\ndispositive of the question before us, however. The sixth Glatt factor considers “the \n\nextent to which the intern’s work complements, rather than displaces, the work of paid \n\nemployees.” Glatt, 811 F.3d at 536‐37. A student’s work is “complementary if it requires \n\nsome level of oversight or involvement by an employee, who may still bear primary \n\nresponsibility.” Wang, 877 F.3d at 75. As Velarde acknowledges in his amended \n\ncomplaint, the Academy advertises that its students provide services “under the \n\nwatchful eye of [its] industry experienced educators.” Am. Compl. ¶ 25, App’x 12. \n\nGiven the need for such supervision, that Velarde was otherwise “useful or productive” \n\nto the Academy did not render him its employee. Wang, 877 F.3d at 75 (observing that \n\nthe Glatt factors do not require that “the alleged employer derive no immediate \n\nadvantage from the activities of the intern”). This is not a case in which a business uses \n\nthe façade of a vocational school to deceive students into working unexpectedly long \n\nhours without compensation, replacing the labor of its paid employees, or working \n\n \ndetermine objectively whether a purported employee had a reasonable expectation of payment. \nSee Brown v. N.Y.C. Dep’t of Educ., 755 F.3d 154, 166 (2d Cir. 2014). Velarde has pointed to no \naffirmative acts on the part of the Academy that would cause an enrollee to expect payment for \nservices provided in the practical portion of the training program. \n 16 \n \n\f \n\nhours well beyond long‐standing state requirements. Once again evaluating the totality \n\nof the circumstances, then, we reiterate our conclusion that Velarde was the primary \n\nbeneficiary of his relationship with the Academy and therefore was not an employee of \n\nthe Academy for purposes of FLSA and NYLL. \n\n Our conclusion is consistent with those of other courts to have addressed this \n\nissue. The Seventh Circuit recently concluded in a closely parallel setting that “the fact \n\nthat [cosmetology] students pay not just for the classroom time but also for the \n\npractical‐training time is fundamentally inconsistent with the notion that during their \n\ntime on the [salon floor] the students were employees.” Hollins v. Regency Corp., 867 \n\nF.3d 830, 836 (7th Cir. 2017). Here, as in Hollins, Velarde knew that he was paying the \n\nAcademy not just for eight weeks of classroom instruction, but also for twenty‐two \n\nweeks of guided practical experience in the Academy’s salon, without which he would \n\nnot have been able to qualify to perform cosmetology services in New York. See also \n\nBenjamin, 877 F.3d at 1147–48 (cosmetology students not employees of for‐profit school \n\nthat provided state‐mandated hours of training for cosmetology licensure). \n\n Similarly, the Sixth Circuit has held that vocational “[s]tudents engage[d] in \n\ncourses of study that have been considered and approved of by the state accrediting \n\nagency” were not employees of the eldercare facility in which they worked. Solis v. \n\nLaurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 531–32 (6th Cir. 2011). That court noted \n\nthat the students received genuine benefits, both tangible and intangible. It \n\nacknowledged that the students might be “employees” covered by FLSA if the \n\n“supervision was inadequate, the exposure to various aspects of the trade limited, and \n\nthe overall value to the students nil,” but determined that none of those descriptors \n\napplied. Id. In this case, Velarde does not allege that his exposure at the Salon to \n\n\n 17 \n \n\f \n\ncosmetology was limited or that he did not obtain substantial value from his learning \n\nexperiences at the Academy. \n\n For these reasons, we are persuaded that the District Court correctly granted \n\njudgment on the pleadings to the Academy on Velarde’s FLSA and NYLL claims. \n\n\n CONCLUSION \n\n The primary beneficiary test articulated in Glatt applies to the relationship \n\nbetween students who attend vocational schools and those schools. Patrick Velarde was \n\nthe primary beneficiary of his relationship with the Academy, including with respect to \n\nhis supervised work in the Salon. Velarde was thus not an “employee” of the Academy \n\nunder FLSA and NYLL. The judgment of the District Court is AFFIRMED. \n\n\n\n\n 18", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364669/", "author_raw": "SUSAN L. CARNEY, Circuit Judge:"}]} | CABRANES | CARNEY | CAPRONI | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587416/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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{
"content": "[CASE_METADATA]\nCase name: Velarde v. GW GJ, Inc.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-330\nVelarde v. GW GJ, Inc., et al.\n\n\n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n ______________ \n \n August Term, 2017 \n \n (Argued: March 8, 2018 Decided: February 5, 2019) \n \n Docket No. 17‐330 \n ______________ \n \n PATRICK VELARDE, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY \n SITUATED, \n \n Plaintiff‐Appellant, \n \n –v.– \n \n GW GJ, INC. D/B/A THE SALON PROFESSIONAL ACADEMY OF BUFFALO, \n MARGARET GRENAUER, AND PAUL GRENAUER, \n \n Defendants‐Appellees. \n ______________ \n \nB e f o r e : \n \n CABRANES AND CARNEY, Circuit Judges, and CAPRONI, District Judge.* \n \n ______________ \n \n Plaintiff‐appellant Patrick Velarde sued The Salon Professional Academy of \nBuffalo and its owners, Margaret Grenauer and Paul Grenauer, (collectively, “the \nAcademy”) in the United States District Court for the Western District of New York \n\n \n\n Judge Valerie E. Caproni, of the United States District Court for the Southern District of New \n*\n\nYork, sitting by designation. \n\n \n\f \n\n(Skretny, J.) for alleged violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et \nseq. (“FLSA”), and Articles 6 and 19 of the New York labor law, N.Y. Lab. Law §§ 190, \n650 et seq. Velarde alleges that, as a part of his vocational training at the Academy for \nbecoming a licensed beautician, he was required to perform cosmetology services \nwithout compensation in the Academy’s student salon. He argues that the requirement \nviolated FLSA and New York labor law. The District Court granted judgment on the \npleadings to the Academy, reasoning under the test that we established in Glatt v. Fox \nSearchlight Pictures, Inc., 811 F.3d 528, 536‐537 (2d Cir. 2015), that Velarde was the \n“primary beneficiary” of his relationship with the Academy and therefore not an \n“employee” of the Academy for the purposes of both FLSA and New York labor law. \nOn de novo review, we agree with the District Court’s analysis and AFFIRM its award \nof judgment to the Academy. \n \n AFFIRMED. \n ______________ \n \n ROBERT WISNIEWSKI, ESQ., New York, NY, for Plaintiff‐\n Appellant. \n \n JAMES W. GRABLE, JR. (Terrence M. Connors on the brief), \n Connors LLP, Buffalo, NY, for Defendants‐Appellants. \n ______________ \n\nSUSAN L. CARNEY, Circuit Judge: \n\n In Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015), we addressed \n\nthe application of certain federal and state employment laws to activities performed in a \n\ncommercial setting by temporary “interns.” We applied a “primary beneficiary” test: if, \n\nunder certain enumerated circumstances, the intern is the “primary beneficiary” of the \n\nrelationship, then the host entity is not the intern’s employer and has no legal obligation \n\nto pay compensation under those laws; if, on the other hand, the host entity is the \n\n“primary beneficiary” of the relationship, then the entity is an employer and federal \n\nand state employment laws—in particular, the Fair Labor Standards Employment Act, \n\n\n 2 \n \n\f \n\n29 U.S.C. §§ 201 et seq. (“FLSA”), and Articles 6 and 19 of the New York Labor Law \n\n§§ 190, 650 et seq. (“NYLL”)—impose compensation obligations. \n\n In the case at bar, we consider the applicability of this test to individuals enrolled \n\nin a for‐profit vocational academy who are preparing to take a state licensure \n\nexamination and who must first fulfill state minimum training requirements. These \n\nindividuals fulfill those requirements by working under Academy supervision for a \n\ndefined number of hours, without pay. We determine that the Glatt test governs in the \n\nfor‐profit vocational training context, and we further conclude that here, the plaintiff, \n\nformer student of the Academy was the primary beneficiary of the relationship, thus \n\nexcusing the latter from potential compensation obligations under FLSA or NYLL \n\nrelated to plaintiff’s limited work there as a trainee. \n\n\n BACKGROUND1 \n\n On April 18, 2011, desiring to become a cosmetologist in New York state,2 Patrick \n\nVelarde enrolled in the Academy, a for‐profit cosmetology training school operated by \n\n \n\n1 We review de novo a district court’s decision under Federal Rule of Civil Procedure 12(c) to \ngrant a defendant’s motion for judgment on the pleadings. In doing so, we accept all factual \nallegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. L‐\n7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). In addition to the facts alleged \nin the complaint, we consider the defendants’ answer, any written documents attached to the \ncomplaint or the answer, any document that is incorporated by reference into the complaint, \nany document that is “integral” to the complaint, and any matter of which the court may take \njudicial notice. Id. at 422. We have identified no material conflicts in the parties’ accounts. \nAlthough the parties do dispute whether, when enrolling, Velarde was aware that he would \nhave to work in the Salon without pay to graduate, see Am. Compl. ¶ 46, App’x 17, Velarde \nundisputedly knew that the program included a practical component, and so we consider the \ndispute immaterial to our resolution of the appeal. \n\n2 The New York State Division of Licensing Services advises that “cosmetology” means: \n 3 \n \n\f \n\nthe individual defendants and located in the City of Tonawanda, in Erie County, New \n\nYork. On November 16 of that year, he finished the Academy’s program, having \n\nsuccessfully completed what the Academy’s diploma describes as a “1000 hour course \n\nof study in [c]osmetology [a]pproved by the state of New York.” App’x 96. The \n\nAcademy’s course included both classroom instruction and supervised practical \n\nexperience in its student salon (the “Salon”), in which members of the public could \n\nreceive cosmetology services and the Academy’s students could practice and refine \n\ntheir skills. Velarde provided such services, under supervision, as generally described \n\nby his enrollment agreement and course catalogue. \n\n Having become a licensed cosmetologist in 2012, Velarde sued the Academy for \n\nunpaid wages in 2014—three years after completing the program. He alleged that the \n\nAcademy violated FLSA and several sections of NYLL by failing to pay him for the \n\nwork that he did in the Salon while he was enrolled at the Academy. In his operative \n\ncomplaint,3 he charged that, “under the terms of the students’ enrollment agreement,” \n\nhe and all students enrolled in the Academy were unlawfully required to work without \n\n \n\n providing services to the hair, head, face, neck or scalp of a human being, \n including but not limited to shaving, trimming, and cutting the hair or beard \n either by hand or mechanical appliances and the application of antiseptics, \n powders, oils, clays, lotions or applying tonics to the hair, head, or scalp, and \n in addition includes providing, for a fee or any consideration or exchange, \n whether direct or indirect, services for the application of dyes, reactive \n chemicals, or other preparations to alter the color or to straighten, curl, or alter \n the structure of the hair of a human being. \n\nhttps://www.dos.ny.gov/licensing/cosmetology/cosmetology.html (last visited Jan. 9, 2019); see \nalso N.Y. Gen. Bus. Law § 400(7). \n\n Velarde filed his original complaint on August 22, 2014, and filed an amended complaint on \n3\n\nAugust 26, 2014. References to the “complaint” in this opinion are to the amended complaint. \n 4 \n \n\f \n\npay in the Salon as part of their course of instruction. Am. Compl. ¶ 4, App’x 8; \n\nEnrollment Agt., App’x 98. After finishing eight weeks in the classroom, Velarde \n\nworked at the Salon, logging 34 unpaid hours per week for 22 weeks and practicing \n\nunder the supervision of licensed practitioners. During those 22 weeks, he performed \n\n“barbering and hair styling, skin and body treatments, [and] manicure and pedicure \n\nservices,” for the public. Am. Compl. ¶¶ 4, 19, App’x at 8, 11. He and other Academy \n\nstudents were also obligated to perform janitorial and clerical work at the Salon. \n\nStudents in the Salon segment of the vocational program were further required, he \n\ncomplains, to provide “whatever cosmetological service was demanded by a customer”: \n\nthey could not “choose what services they wanted or needed additional training in.” \n\nAm. Compl. ¶ 37(c), App’x at 15. Velarde sought relief both on his own behalf and on \n\nbehalf of other former and present students. \n\n For Salon services, the Academy charges clients “discounted prices,” with prices \n\n“vary[ing] according to student [skill] level.” Am. Compl. ¶¶ 25‐26, App’x 12. The \n\nSalon’s rates are lower than those of nearby salons employing only cosmetologists who \n\nare already licensed. The Academy—which is, as mentioned, a for‐profit enterprise—\n\nderives some of its revenues from the fees paid by the Salon’s clients. Velarde would \n\nreceive tips for his work, but any gratuities were nominal in amount. The Academy also \n\nderives revenue directly from students, of course: over the course of his thirty‐week \n\ncourse of study, Velarde paid the Academy $12,823 for “tuition, books, kits, and other \n\nfees.” Am. Compl. ¶ 18, App’x 10. \n\n To offer commercial cosmetology services in New York, an individual must \n\nobtain and maintain a State cosmetology license. N.Y. Comp. Codes R. & Regs. tit. 19, \n\n§ 160.2. New York requires license applicants to have completed 1,000 hours of \n\n\n 5 \n \n\f \n\ncoursework in defined subject areas, including safety and health, hair styling, and nail \n\ncare. Id. § 162.4. Aspiring cosmetologists must also pass the state’s licensure \n\nexamination, which has both written and practical components. N.Y. Gen. Bus. Law \n\n§§ 406(2)(b), 407(1). \n\n In his suit, Velarde sought unpaid hourly minimum wages including tips and \n\novertime for his work in the Salon. He contended that, for purposes of FLSA and NYLL, \n\nhe and other Academy students were employees of the Academy while they performed \n\nservices in the Salon.4 In 2016, after the Academy filed its Answer, the assigned \n\nMagistrate Judge (Schroeder, Jr., M.J.) filed a report and recommendation concluding \n\nthat the Academy’s motion for judgment on the pleadings should be granted. In a 2017 \n\ntext order, the District Court rejected Velarde’s objections, accepted the Magistrate \n\nJudge’s report and recommendation, and entered judgment for the Academy. \n\n This appeal followed. \n\n\n DISCUSSION \n\n We review de novo a district court’s decision awarding judgment on \n\nthe pleadings. Mantena v. Johnson, 809 F.3d 721, 727 (2d Cir. 2015). \n\n The federal Fair Labor Standards Act requires, among other things, that \n\nemployers pay “[e]mployees engaged in commerce” an hourly minimum wage. 29 \n\nU.S.C. § 206(a). Similarly, the New York Labor Law requires state employers to pay \n\n\n\n \n\n4 Velarde also pursued a claim for quantum meruit against the Academy in the district court \nproceedings. The District Court dismissed that claim. On appeal, Velarde has withdrawn his \nchallenge to the dismissal, and we therefore treat the challenge as waived. \n 6 \n \n\f \n\ntheir “employees” a set minimum wage.5 N.Y. Lab. Law § 652. As described above, \n\nVelarde’s action calls for us to decide whether students at a for‐profit vocational school \n\ncompleting state‐mandated training hours in preparation for (and to qualify for) a state \n\nlicensure exam are correctly treated as “employees” of their respective schools with \n\nrespect to the “work” that they do as they are training. \n\n We have observed elsewhere that FLSA and NYLL define “employee” in “nearly \n\nidentical terms.” Glatt, 811 F.3d at 534. Accordingly, “we construe the NYLL definition \n\nas the same in substance as the definition in the FLSA.”6 Id. FLSA’s definition of \n\n“employee,” however, is far from a model of clarity: it offers the unenlightening \n\ntautology that an “employee” is an “individual employed by an employer.” 29 U.S.C. \n\n§ 203(e)(1). FLSA advises further that to “employ” means “to suffer or permit to work.” \n\nId. § 203(g). \n\n On de novo review, we first conclude that the District Court was correct to \n\nanalyze whether Velarde was an “employee” of the Academy by using the “primary \n\nbeneficiary” test established in Glatt. Applying that test, we then determine that Velarde \n\nwas not an employee of the Academy when enrolled there and working in the Salon, \n\nbecause he was the primary beneficiary of his relationship with the Academy, including \n\nwith respect to his work in the Salon. \n\n\n\n\n \n\n NYLL sets its minimum hourly wage at an amount higher than FLSA’s floor. See N.Y. Lab. \n5\n\nLaw § 652. \n\n The parties do not dispute that our resolution of Velarde’s FLSA claim is dispositive of his \n6\n\nNYLL claim. \n 7 \n \n\f \n\nI. Primary beneficiary test \n\n In Glatt, we considered the employment status of unpaid interns who “were \n\nenrolled in or had recently completed a formal course of post‐secondary education” and \n\nwho were working temporarily in a commercial concern. 811 F.3d at 537. As we \n\nobserved there and have observed in the past, the concept of “employment”—pivotal to \n\nFLSA’s application—is “a flexible [one] to be determined on a case‐by‐case basis by \n\nreview of the totality of the circumstances” while emphasizing the “economic reality” of \n\nthe parties’ relationships. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 141–42 \n\n(2d Cir. 2008); see also Glatt, 811 F.3d at 536. \n\n We looked for guidance to the Supreme Court’s decision in Walling v. Portland \n\nTerminal Co., 330 U.S. 148 (1947). There, the Supreme Court instructed that FLSA, \n\nenacted in 1938, “covers trainees, beginners, apprentices, or learners if they are employed \n\nto work for an employer for compensation.” Id. at 151 (emphasis added). The Court \n\ncautioned, however, that “a person whose work serves only his own interest” does not \n\nnecessarily become “an employee of another person who gives him aid and \n\ninstruction.” Id. at 152. \n\n The Portland Terminal decision addressed whether unpaid “trainees” in a \n\nrailroad’s program for prospective brakemen were employees for FLSA minimum wage \n\npurposes. 330 U.S. at 149–50. The “course of practical training” that constituted the \n\nrailroad’s program had the following features: \n\n If accepted for the training course, an applicant is [assigned] \n to a yard crew for instruction. Under this supervision, he first \n learns the routine activities by observation, and is then \n gradually permitted to do actual work under close scrutiny. \n His activities do not displace any of the regular employees, \n\n 8 \n \n\f \n\n who do most of the work themselves and must stand \n immediately by to supervise whatever the trainees do. The \n applicant’s work does not expedite the company business, but \n may, and sometimes does, actually impede and retard it. \n\nId. An applicant who successfully completed the weeklong training course would be \n\nadded to the list of potential hires “from which the company can draw when their \n\nservices are needed.” Id. at 150. The Court commented that, “[h]ad these trainees taken \n\ncourses in railroading in a public or private vocational school, wholly disassociated \n\nfrom the railroad, it could not reasonably be suggested that they were employees of the \n\nschool.” Id. at 152–53. Reasoning that FLSA “was not intended to penalize railroads for \n\nproviding, free of charge, the same kind of instruction at a place and in a manner which \n\nwould most greatly benefit the trainees,” id. at 153, the Court concluded that the \n\ntrainees were not railroad employees. \n\n Distilling the import of Portland Terminal in the context of interns temporarily \n\nperforming work in a commercial enterprise, we held in Glatt that “the proper question \n\n[with respect to a purported ‘employment’ relationship] is whether the intern or the \n\nemployer is the primary beneficiary of the relationship.” Glatt, 811 F.3d at 536. We \n\nhighlighted several salient features of the “primary beneficiary” test: under it, we \n\nconsider “what the intern receives in exchange for his work”; we “accord[] courts the \n\nflexibility to examine the economic reality as it exists between the intern and the \n\nemployer”; and we acknowledge the complexities of relationships involving “the \n\nexpectation of receiving educational or vocational benefits that are not necessarily \n\nexpected with all forms of employment.” Id. \n\n Velarde argues that the District Court erred in applying Glatt’s primary \n\nbeneficiary test in his situation because he was not an “intern”; in his view, the District \n\n 9 \n \n\f \n\nCourt should have focused solely on what he identifies as the economic reality of his \n\nrelationship with the Academy. Velarde contends that one need ask only whether the \n\nputative employer received an “immediate advantage” from a putative employee’s \n\nwork to define the “economic reality” of this relationship. From this, he argues that the \n\nAcademy must have been his “employer” because it derived revenue by providing \n\nVelarde’s services to the public; any training that Velarde received and the skills that he \n\ndeveloped by virtue of his supervised work experiences in the Salon are, in Velarde’s \n\nview, besides the point. \n\n As Velarde points out, it is true that in Portland Terminal the Supreme Court \n\ncounted as one factor relevant to its holding that the railroad received no “immediate \n\nadvantage” from the trainees’ work. Portland Terminal, 330 U.S. at 153. As we explained \n\nin Glatt, however, Portland Terminal does not imply that FLSA renders any organization \n\nthat receives some immediate benefit from unpaid labor an “employer” of the \n\nindividual from which the benefit is derived. See Glatt, 811 F.3d at 535–36 (rejecting \n\n“immediate advantage” test in favor of “primary beneficiary” analysis). We agree with \n\nVelarde that the benefits gained by the Academy from his time in the Salon are relevant \n\nto determining whether it “employed” Velarde for FLSA purposes, but those benefits \n\nare only one factor among several that properly bear on our analysis. \n\n In Glatt and in subsequent decisions, we have described the primary beneficiary \n\ntest as a “way to distinguish employees from bona fide interns.” Xuedan Wang v. Hearst \n\nCorp., 877 F.3d 69, 72 (2d Cir. 2017). We conclude here that the test is equally suitable for \n\ndistinguishing between “employees” and “bona fide students” of vocational schools or \n\nvocation‐related programs (such as a training salon) where trainees acquire necessary \n\nskills by practicing their craft in a real‐world setting. Like interns, vocational students \n\n\n 10 \n \n\f \n\nenter a course of study with “the expectation of receiving educational or vocational \n\nbenefits that are not necessarily expected with all forms of employment.” Glatt, 811 F.3d \n\nat 536. The primary beneficiary test allows courts to measure the extent to which the \n\nschool meets these expectations against the economic benefits received by the school in \n\nthe form of free labor. As with interns, disentangling the threads of a complex economic \n\nfabric and teasing out the respective benefits garnered by students and their commercial \n\ntraining programs is key to determining whether, for FLSA purposes, a trainee is \n\nserving primarily as an employee of that school or training program—or is primarily a \n\nstudent. \n\n We therefore conclude that the District Court was correct to apply the primary \n\nbeneficiary test in determining whether Velarde was a student or an employee of the \n\nAcademy. \n\n\nII. Velarde was the primary beneficiary of his relationship with the Academy \n\n As set forth above, the primary beneficiary test seeks to assess the relative \n\ndominance in the relationship between host institution and the individual claiming \n\nemployee status of (1) the benefits of a relationship to the individual, (2) the benefits \n\nderived from that relationship by the putative employer, and (3) the expectations of the \n\nparties. In Glatt, we listed several considerations that may, with others, be useful in \n\ndetermining which party is the “primary” beneficiary of a relationship considering the \n\ntotality of the circumstances.7 Several of the Glatt factors are less telling in the vocational \n\n\n \n 7 In Glatt, we enumerated the following seven factors as relevant to the determination: \n\n 1. The extent to which the intern and the employer clearly \n understand that there is no expectation of compensation. Any \n 11 \n \n\f \n\nschool context, where students would seem less likely to expect a paid position with the \n\nschool after they graduate than an intern at a commercial enterprise for whom a \n\nprofessional position might be a goal. In addition, at a vocational school, the program is \n\nby definition tied to some form of an academic calendar (see factor 4, in the margin), \n\nwith students receiving course credit for their work. \n\n Others of the Glatt factors, however, provide insight for determining which party \n\nis the primary beneficiary of the vocational school relationship—a determination that is \n\nlikely to vary in different school settings and possibly in different state regulatory \n\n \n promise of compensation, express or implied, suggests that the \n intern is an employee—and vice versa. \n 2. The extent to which the internship provides training that would \n be similar to that which would be given in an educational \n environment, including the clinical and other hands‐on training \n provided by educational institutions. \n 3. The extent to which the internship is tied to the intern’s formal \n education program by integrated coursework or the receipt of \n academic credit. \n 4. The extent to which the internship accommodates the intern’s \n academic commitments by corresponding to the academic \n calendar. \n 5. The extent to which the internship’s duration is limited to the \n period in which the internship provides the intern with beneficial \n learning. \n 6. The extent to which the intern’s work complements, rather than \n displaces, the work of paid employees while providing significant \n educational benefits to the intern. \n 7. The extent to which the intern and the employer understand that \n the internship is conducted without entitlement to a paid job at the \n conclusion of the internship. \n\nGlatt, 811 F.3d at 536–37. We acknowledged that the list was non‐exhaustive. Id. \n 12 \n \n\f \n\nenvironments. For example, a vocational school is more likely to be found to “employ” \n\nits students if it does not have a “formal education program” with “integrated \n\ncoursework,” and instead exclusively requires students to perform tasks that are the \n\nsame as those done by regularly compensated employees. (See Glatt factor 3.) Similarly, \n\na vocational school that runs a training program whose duration far exceeds “the period \n\nin which the [program] provides the [student] with beneficial learning” may well be the \n\nprimary beneficiary of that relationship. (See Glatt factor 5.) See also Marshall v. Baptist \n\nHosp., Inc., 668 F.2d 234, 236 (6th Cir. 1981) (students are employees subject to FLSA \n\nwhere “the clinical training program was seriously deficient in supervision, and . . . the \n\nstudents continued to perform clerical chores long after the educational value of that \n\nwork was over”). The state licensing requirements may often serve as strong evidence \n\nof the amount of practical training necessary for a student to become a competent \n\nprofessional, but will not always be determinative.8 \n\n We provide these examples and counter‐examples not to limit future courts’ \n\nconsideration of some or all of the Glatt factors in particular circumstances, but to make \n\nplain that courts may reasonably give more weight to some considerations over others \n\nwhen applying the primary beneficiary test to vocational schools and their students. \n\n Here, evaluating the totality of the circumstances presented by the parties’ \n\npleadings and keeping in mind that the goal of the primary beneficiary test is to balance \n\nflexibly the benefits received by the student and the economic realities of the student‐\n\n \n\n8 See Meredith Kolodner & Sarah Butrymowicz, A $21,000 Cosmetology School Debt, and a $9‐an‐\nHour Job, N.Y. Times, Dec. 26, 2018, at \nhttps://www.nytimes.com/2018/12/26/business/cosmetology‐school‐debt‐iowa.html (last visited \nJan. 9, 2019) (describing widely varying state requirements for the number of school hours for a \ncosmetology license and efforts by for‐profit schools to prevent their reduction). \n 13 \n \n\f \n\nentity relationship, Glatt, 811 F.3d at 536, we have little difficulty in concluding that \n\nVelarde was the primary beneficiary of his relationship with the Academy and was not \n\nan employee of the Academy for FLSA and NYLL purposes. \n\n Several observations are key to our reasoning. \n\n To begin, Velarde obtained significant benefits from his work in the Academy’s \n\nSalon: he was required to complete 1,000 hours of coursework in specific practical areas \n\nto qualify for taking the cosmetology license examination. See N.Y. Comp. Codes R. & \n\nRegs. tit. 19, § 162.4. We find it meaningful that the Academy required that Velarde \n\ncomplete not more than, but exactly the number of hours required by the state of New \n\nYork to qualify for licensure (some of it classroom instruction, the bulk of it providing \n\nservices in the Salon). Of those hours spent in the Salon, Velarde performed services \n\nunder the supervision of the Academy’s instructors. Velarde makes no allegation that \n\nthe Academy failed in this supervision to prepare him for either the practical or written \n\ncomponent of the licensing exam. Nor does he claim that his hands‐on experience in the \n\nSalon was unrelated to his formal classroom instruction. \n\n To rebut the inference that we draw, Velarde suggests, rather, that he should \n\nhave been allowed to allocate his time differently among the various areas of study that \n\nthe school required and that he should have been able to avoid performing clerical and \n\njanitorial work that he views as without instructional benefit to him. But “practical skill \n\nmay entail practice, and a [student] gains familiarity with an industry by day to day \n\nprofessional experience” that may include relatively menial or repetitive tasks. Wang, \n\n877 F.3d at 74 (concluding that interns received “beneficial learning” even when \n\nperforming “repetitive or similar tasks”); see also Schumann v. Collier Anesthesia, P.A., 803 \n\nF.3d 1199, 1213 (11th Cir. 2015) (“[T]he mere fact that an employer obtains a benefit \n\n 14 \n \n\f \n\nfrom providing a clinical [program] does not mean that the employer is the ‘primary \n\nbeneficiary’ of the relationship.”). That a vocational school does not provide the optimal \n\nlearning experience for a student does not necessarily transform it into the primary \n\nbeneficiary of the relationship. This is especially so where the school (as did the \n\nAcademy here) provides a state‐accredited course of vocational study, requires no more \n\nthan the number of hours specified by the state, the state’s required numbers of hours \n\nare not challenged as unreasonable, see n. 8, supra, and the school adequately prepares \n\nstudents for that state’s licensure exam (as it did for Velarde). See Benjamin v. B & H \n\nEduc., Inc., 877 F.3d 1139, 1147 (9th Cir. 2017) (students not FLSA employees where \n\n“clinical work allowed students to clock the hours they needed to sit for the state \n\nlicensing exams”). \n\n Furthermore, although Velarde faults the Academy for charging customers fees \n\nfor his cosmetological services that exceeded the Academy’s relevant operating costs (as \n\nhe calculated them), the Academy has no obligation not to turn a reasonable profit on \n\nits operations. The Academy’s enrollment agreement and catalogue advised that \n\ncoursework would include both classroom and practical or “salon area” components, \n\nand Velarde was aware that he would pay the Academy, a for‐profit entity, for his \n\nparticipation in both components, as necessary for him to meet New York’s licensure \n\nrequirements.9 Velarde emphasizes that his 748 hours of unpaid work in the Salon, Am. \n\n \n\n9 Velarde offered conclusory allegations related to his now‐abandoned quantum meruit claim, \nsee n. 4, supra, that he “had a reasonable expectation of receiving payment at an appropriate \nwage rate for the hours [he] worked for Defendants,” Am. Compl. ¶ 69, App’x 21. The only \nallegation that he made in support of the objective reasonableness of any such expectation, \nhowever, was that the Academy “never told [him that] . . . [he] would be forced to work \nwithout pay,” Am. Compl. ¶ 46, App’x 17. This allegation, however, misses the point: Velarde \ndoes not allege that the Academy told him that he would be paid for his time in the Salon. We \n 15 \n \n\f \n\nCompl. ¶ 4, App’x 8, provided an “immediate advantage” to the Academy (in the form \n\nof no‐cost labor in a for‐profit setting), but he does not assert that he replaced paid \n\nemployees at the Academy. Rather, he argues that his lower‐cost labor allowed the \n\nAcademy’s Salon to better compete in the marketplace, strengthening the Academy’s \n\nrevenues and not providing commensurate educational benefit to him. \n\n It is undoubtedly true that the Academy—a for‐profit institution—derived \n\nfinancial value from Velarde’s work in the Salon. That Velarde provided “tangible \n\nbenefits” to the Academy in this way (and in addition to his tuition payments) is not \n\ndispositive of the question before us, however. The sixth Glatt factor considers “the \n\nextent to which the intern’s work complements, rather than displaces, the work of paid \n\nemployees.” Glatt, 811 F.3d at 536‐37. A student’s work is “complementary if it requires \n\nsome level of oversight or involvement by an employee, who may still bear primary \n\nresponsibility.” Wang, 877 F.3d at 75. As Velarde acknowledges in his amended \n\ncomplaint, the Academy advertises that its students provide services “under the \n\nwatchful eye of [its] industry experienced educators.” Am. Compl. ¶ 25, App’x 12. \n\nGiven the need for such supervision, that Velarde was otherwise “useful or productive” \n\nto the Academy did not render him its employee. Wang, 877 F.3d at 75 (observing that \n\nthe Glatt factors do not require that “the alleged employer derive no immediate \n\nadvantage from the activities of the intern”). This is not a case in which a business uses \n\nthe façade of a vocational school to deceive students into working unexpectedly long \n\nhours without compensation, replacing the labor of its paid employees, or working \n\n \ndetermine objectively whether a purported employee had a reasonable expectation of payment. \nSee Brown v. N.Y.C. Dep’t of Educ., 755 F.3d 154, 166 (2d Cir. 2014). Velarde has pointed to no \naffirmative acts on the part of the Academy that would cause an enrollee to expect payment for \nservices provided in the practical portion of the training program. \n 16 \n \n\f \n\nhours well beyond long‐standing state requirements. Once again evaluating the totality \n\nof the circumstances, then, we reiterate our conclusion that Velarde was the primary \n\nbeneficiary of his relationship with the Academy and therefore was not an employee of \n\nthe Academy for purposes of FLSA and NYLL. \n\n Our conclusion is consistent with those of other courts to have addressed this \n\nissue. The Seventh Circuit recently concluded in a closely parallel setting that “the fact \n\nthat [cosmetology] students pay not just for the classroom time but also for the \n\npractical‐training time is fundamentally inconsistent with the notion that during their \n\ntime on the [salon floor] the students were employees.” Hollins v. Regency Corp., 867 \n\nF.3d 830, 836 (7th Cir. 2017). Here, as in Hollins, Velarde knew that he was paying the \n\nAcademy not just for eight weeks of classroom instruction, but also for twenty‐two \n\nweeks of guided practical experience in the Academy’s salon, without which he would \n\nnot have been able to qualify to perform cosmetology services in New York. See also \n\nBenjamin, 877 F.3d at 1147–48 (cosmetology students not employees of for‐profit school \n\nthat provided state‐mandated hours of training for cosmetology licensure). \n\n Similarly, the Sixth Circuit has held that vocational “[s]tudents engage[d] in \n\ncourses of study that have been considered and approved of by the state accrediting \n\nagency” were not employees of the eldercare facility in which they worked. Solis v. \n\nLaurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 531–32 (6th Cir. 2011). That court noted \n\nthat the students received genuine benefits, both tangible and intangible. It \n\nacknowledged that the students might be “employees” covered by FLSA if the \n\n“supervision was inadequate, the exposure to various aspects of the trade limited, and \n\nthe overall value to the students nil,” but determined that none of those descriptors \n\napplied. Id. In this case, Velarde does not allege that his exposure at the Salon to \n\n\n 17 \n \n\f \n\ncosmetology was limited or that he did not obtain substantial value from his learning \n\nexperiences at the Academy. \n\n For these reasons, we are persuaded that the District Court correctly granted \n\njudgment on the pleadings to the Academy on Velarde’s FLSA and NYLL claims. \n\n\n CONCLUSION \n\n The primary beneficiary test articulated in Glatt applies to the relationship \n\nbetween students who attend vocational schools and those schools. Patrick Velarde was \n\nthe primary beneficiary of his relationship with the Academy, including with respect to \n\nhis supervised work in the Salon. Velarde was thus not an “employee” of the Academy \n\nunder FLSA and NYLL. The judgment of the District Court is AFFIRMED. \n\n\n\n\n 18\n[END_CASE]",
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8,443,863 | Patrick VELARDE, on Behalf of Himself and All Others Similarly Situated v. GW GJ, INC. d/b/a the Salon Professional Academy of Buffalo, Margaret Grenauer, and Paul Grenauer | Velarde v. GW GJ, Inc. | 2019-02-05 | Docket No. 17-330; August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Cabranes, Caproni, Carney", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415290/", "author_raw": ""}]} | CABRANES | CAPRONI | CARNEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443863/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Patrick VELARDE, on Behalf of Himself and All Others Similarly Situated v. GW GJ, INC. d/b/a the Salon Professional Academy of Buffalo, Margaret Grenauer, and Paul Grenauer\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,587,729 | LEHMAN XS TRUST, SERIES 2006-GP2, (LXS 2006-GP2), BY U.S. BANK NATIONAL ASSOCIATION, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP3, (LXS 2006-GP3), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP4, (LXS 2006-GP4), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Plaintiffs-Appellants, v. GREENPOINT MORTGAGE FUNDING, INC., Defendant-Appellee. | Lehman XS Trust v. Greenpoint Mortgage Funding, Inc. | 2019-02-06 | Docket 17-1290; August Term 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Wesley, Chin, Carney", "parties": "", "opinions": [{"author": "WESLEY, Circuit Judge:", "type": "010combined", "text": "17‐1290 \nLehman XS Trust v. Greenpoint Mortgage Funding, Inc. \n\n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n ______________ \n \n August Term 2017 \n \n (Argued: April 17, 2018 Decided: February 6, 2019) \n \n Docket 17‐1290 \n \n LEHMAN XS TRUST, SERIES 2006‐GP2, (LXS 2006‐GP2), by U.S. BANK \n NATIONAL ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS \n TRUST, SERIES 2006‐GP3, (LXS 2006‐GP3), by U.S. BANK NATIONAL \n ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS TRUST, SERIES \n 2006‐GP4, (LXS 2006‐GP4), by U.S. BANK NATIONAL ASSOCIATION, solely in \n its capacity as Trustee, \n \n Plaintiffs‐Appellants, \n \n v. \n \n GREENPOINT MORTGAGE FUNDING, INC., \n \n Defendant‐Appellee.* \n ______________ \n \nBefore: \n WESLEY, CHIN, AND CARNEY, Circuit Judges. \n \n Plaintiff U.S. Bank National Association (“U.S. Bank”) appeals from a \njudgment entered in the United States District Court for the Southern District of \nNew York (Carter, J.) dismissing its second amended consolidated complaint as \nuntimely. U.S. Bank argues, among other things, that the district court erred in \n\n The Clerk of the Court is respectfully directed to amend the official caption as noted \n*\n\nabove. \n\fdismissing its complaint because (1) its claim for indemnification under the \ncontract in dispute is independent of its claim for breach of that contract, and the \nformer claim therefore was timely filed in federal court; and (2) its claim for \nindemnification based on separate contracts executed at a later date relates back \nto the original state‐court filing under Federal Rule of Civil Procedure 15(c). We \ndisagree. AFFIRMED. \n _________________ \n\n HECTOR TORRES (David J. Abrams, David J. Mark, on the brief), \n Kasowitz Benson Torres LLP, New York, NY, for Plaintiffs‐\n Appellants. \n\n THEODORE R. SNYDER (James A. Murphy, New York, NY; \n Cameron S. Matheson, Glen Allen, VA, on the brief), Murphy & \n McGonigle, P.C., for Defendant‐Appellee. \n\n _________________ \n\nWESLEY, Circuit Judge: \n\n This appeal is the most recent chapter in the ongoing saga of the last \n\ndecade’s housing finance crisis. At the core of the appeal are three trusts (the \n\n“Trusts”) composed of residential mortgage‐backed securities that Defendant‐\n\nAppellee GreenPoint Mortgage Funding, Inc. (“GreenPoint”) sold in 2006 to \n\nLehman Brothers Holding, Inc., and Lehman Brothers Bank, FSB (collectively, \n\n“Lehman”), with Plaintiff‐Appellant U.S. Bank acting as Trustee. Six years after \n\nthe sale, in 2012, a forensic review of the Trusts revealed that nearly all of the \n\n\n \n \n \n 2 \n \n \n\fsample mortgages GreenPoint sold to Lehman were in breach of the \n\nrepresentations and warranties (“R & Ws”) GreenPoint made in its Flow Mortgage \n\nLoan Purchase and Warranties Agreements (“MLPAs”) with Lehman. \n\n GreenPoint failed to cure or repurchase the loans within the contractual time \n\nframes. As a result, the Federal Housing Finance Agency (“FHFA”)—acting on \n\nbehalf of U.S. Bank as Trustee and as conservator for the Federal Home Loan \n\nMortgage Corporation (“Freddie Mac”),1 which in turn was the beneficial owner \n\nof some of the certificates issued by the Trusts—filed summonses with notice in \n\nNew York Supreme Court.2 \n\n GreenPoint removed the actions to federal court, at which point the FHFA \n\ndropped out of the litigation and U.S. Bank as Trustee filed an amended and \n\n\n\n\n On September 6, 2008, Freddie Mac was placed into conservatorship by the FHFA \n1\n\npursuant to 12 U.S.C. § 4617.\n2 In the New York courts, a plaintiff commences an action “by filing a summons and \ncomplaint or summons with notice.” N.Y. C.P.L.R. § 304(a). A party may elect to file a \nsummons with notice if the party is not prepared to serve the complaint; in that case, the \nsummons must put the defendant on notice of “the nature of the action and the relief \nsought,” as well as “the sum of money for which judgment may be taken in case of \ndefault.” Id. § 305(b). \n \n \n \n 3 \n \n \n\fconsolidated complaint.3 After discovery and the filing of a second amended \n\nconsolidated complaint, GreenPoint moved for summary judgment as to three \n\ncounts of this complaint, and to dismiss as to the fourth count, arguing, among \n\nother things, that the claims were barred by New York’s statute of limitations. \n\n The district court concluded, for various reasons discussed in this opinion, \n\nthat none of U.S. Bank’s claims was timely. The issue before this Court is whether \n\nany of U.S Bank’s claims survive GreenPoint’s motions for summary judgment \n\nand dismissal. We affirm the district court’s conclusion that none does. \n\n BACKGROUND \n\n I. Factual Background \n\n In 2006, Lehman, not a party to this appeal, purchased aggregated pools of \n\nresidential home mortgages from GreenPoint.4 The sales were governed by two \n\n\n\n3 The FHFA ceased prosecuting its claims in this case because of a “no action” clause \ncontained in the Trust Agreements. A “no action” clause bars “individual certificate \nholders from bringing independent law suits which are more effectively brought by the \ntrustee unless certain exceptions are met.” Deutsche Bank Nat’l Tr. Co. v. Quicken Loans Inc., \n810 F.3d 861, 868 n.8 (2d Cir. 2015) (cleaned up) (internal quotation marks omitted) \n(“Deutsche Bank”). \n4 In 2006, before Lehman began bankruptcy proceedings, U.S. Bank entered into \nagreements to serve as Trustee of the Trusts at issue in this case. \n \n \n \n 4 \n \n \n\fMLPAs, each of which contained a series of R & Ws as to the quality of the \n\nmortgage loans.5 When Lehman purchased the loans from GreenPoint in 2006, \n\nthey had an aggregate principal balance exceeding $3.39 billion. \n\n Lehman conveyed the mortgage loans and its rights under the MLPAs to a \n\ndepositor (also not a party to this appeal), which then conveyed the mortgage \n\nloans to three Trusts—GP2, GP3, and GP4—via another set of contracts \n\ndenominated “Trust Agreements.”6 The last dates on which Lehman purchased \n\nmortgage loans from GreenPoint (i.e., the effective dates of the R & Ws) were May \n\n15, 2006 (GP2), June 15, 2006 (GP3), and July 17, 2006 (GP4). The Trusts closed on \n\n\n5 Although the MLPAs at issue are separate contracts, the language relevant to the issues \non appeal is identical in the two documents, and U.S. Bank treats the documents as one \nin its brief to this Court. The first MLPA was signed between Lehman Brothers Bank, FSB \nand GreenPoint in 2001; the second MLPA was signed between Lehman Brothers \nHoldings, Inc. and GreenPoint in 2006. \n6 The “depositor” here was a third‐party entity called Structured Asset Securities \nCorporation (“SASC”). SASC’s role was to create the three Trusts and, “[c]oncurrently \nwith the execution” of the Trust Agreements, to “transfer, assign, set over, deposit with \nand otherwise convey to the Trustee, without recourse . . . all the right, title and interest \nof the Depositor in and to the Mortgage Loans.” J.A. 387, § 2.01(a). In other words, the \ndepositor’s role was to create the Trusts. In the same moment that the parties closed on \nthe MLPAs, SASC acquired an interest in the Trust’s assets, placed the assets in the Trusts, \nand transferred the Trusts to the Trustee (U.S. Bank). The signatories to the Trust \nAgreements were SASC as depositor; U.S. Bank as Trustee; Aurora Loan Services LLC as \nmaster servicer (a role not relevant to this appeal); and Lehman as underwriter. \n \n \n \n 5 \n \n \n\fthe MLPAs on May 31, 2006 (GP2), June 30, 2006 (GP3), and July 31, 2006 (GP4). \n\nOnce the mortgage loans were deposited into the Trusts, they were securitized and \n\ncertificates were issued representing rights to cash flows from the securitized loan \n\nportfolios. Investors then purchased the certificates, thereby acquiring an \n\nownership interest in the Trusts. Freddie Mac was one of these investors.7 \n\n The R & Ws contained in the MLPAs and the Trust Agreements made \n\nassertions about the quality of individual mortgage loans and the mortgage loan \n\npools. Specifically, Section 7 of the MLPAs represented that the mortgage loans \n\nwere “underwritten in accordance with [GreenPoint’s] Underwriting Guidelines,” \n\nJ.A. 160, 261; that the mortgage loan schedules were “complete, true and correct,” \n\nid. 154, 255; that GreenPoint possessed complete mortgage files, id. 161, 262; and \n\nthat, except as specifically scheduled, the loan‐to‐value ratio for the mortgage \n\nloans did not exceed 80%, id. 158, 259. The MLPAs provided that GreenPoint made \n\n\n7 Freddie Mac was the beneficial owner of certificates in a single class issued by each of \nthe Trusts. It did not, however, own more than 25% of “each Class affected thereby” the \nalleged default, a condition the contractual no action clause required for a certificate \nholder to commence litigation. Although we note that GreenPoint appears to be correct \nthat the FHFA (acting as conservator for Freddie Mac) did not satisfy this condition, we \nexpress no judgment on GreenPoint’s merits argument that the FHFA lacked standing to \nbring suit because of the no action clause. \n \n \n \n 6 \n \n \n\fthese R & Ws “as of” each closing date. Section 2.03 of the Trust Agreements \n\nincorporated the R & Ws from the MLPAs. \n\n In an effort to ensure compliance with the R & Ws, the MLPAs and the Trust \n\nAgreements created a contractual remedy in the event that GreenPoint breached. \n\nUnder Section 8 of the MLPAs, upon learning of a breach, GreenPoint had sixty \n\ndays to “use its best efforts promptly to cure such [b]reach in all material respects.” \n\nId. 165, 268. If the breach could not be cured, Section 8 of the MLPAs provided that \n\nGreenPoint “shall, at the Purchaser’s option, repurchase such Mortgage Loan” at \n\nan established repurchase price. Id. The Trust Agreements included an identical \n\nclause, except they gave GreenPoint ninety days from the discovery of the breach \n\nto cure or repurchase. The same section of the MLPAs contained an Accrual \n\nProvision that established how the parties would proceed in the event of a breach.8 \n\n\n\n\n8 The Accrual Provision states: \n Any cause of action against [GreenPoint] relating to or arising out of the \n Breach of any [R & Ws] . . . shall accrue as to any Mortgage Loan upon \n (i) discovery of such Breach by the Purchaser or notice thereof by \n [GreenPoint] to the Purchaser, (ii) failures by [GreenPoint] to cure such \n Breach or repurchase such Mortgage Loan as specified above, and \n \n \n \n 7 \n \n \n\f Section 9 of the MLPAs also contained an indemnification clause, which \n\nreads, in relevant part: \n\n [GreenPoint] agrees to indemnify [Lehman] and hold it harmless \n from and against any and all claims, losses, damages, penalties, fines, \n forfeitures, legal fees and related costs, judgments, and any other \n costs, fees and expenses that [Lehman] may sustain in any way \n related to (i) any act or omission on the part of [GreenPoint] or any \n other person or entity in the origination, receiving, processing, \n funding or servicing any Mortgage Loan prior to the related Transfer \n Date or otherwise arising from the transfer of servicing of the \n Mortgage Loans provided for in this Agreement, [and] (ii) any \n assertion based on, grounded upon [or] resulting from a Breach of any \n of [GreenPoint’s R & Ws] contained herein . . . . [GreenPoint] shall \n immediately notify [Lehman] if a claim is made by a third party with \n respect to this Agreement or the Mortgage Loans . . . \n \nJ.A. 167, 270. \n \n In addition to the indemnification provisions included in the MLPAs, \n\nGreenPoint (together with Lehman and SASC) entered into separate \n\nIndemnification Agreements for each Trust. The agreements provided that \n\nGreenPoint would “indemnify and hold harmless” the other parties to the MLPAs \n\n\n\n\n (iii) demand upon [GreenPoint] by the Purchaser for compliance with this \n Agreement. \nJ.A. 166, 269. \n \n \n \n 8 \n \n \n\fand Trust Agreements “from and against any and all losses, claims, liabilities, \n\ndamages, penalties, fines, forfeitures, legal fees and expenses and related costs, \n\njudgments, and any other costs, fees and expenses” that “arise out of or are based \n\nupon any untrue statement or alleged untrue statement of any material fact” or \n\nthe omission of any such fact in the information GreenPoint provided to Lehman. \n\nId. 1062, 1071, 1080. The relevant “as of” dates for the Indemnification Agreements \n\nwere May 30, 2006 (GP2); June 28, 2006 (GP3); and July 28, 2006 (GP4). \n\n In 2012, Freddie Mac conducted a forensic review of the loan files9 and \n\ndetermined that an overwhelming percentage of the mortgage loans in the Trusts \n\nbreached GreenPoint’s R & Ws under the MLPAs and Trust Agreements.10 U.S. \n\n\n9 The operative complaint discusses the forensic review in the passive voice, making it \nimpossible for us to determine from the complaint alone who initiated the review in 2012 \nand why. See, e.g., J.A. 1129 ¶ 41 (“Forensic reviews were undertaken . . . .“). However, \nU.S. Bank’s brief to this Court explains that Freddie Mac—not U.S. Bank—conducted the \nreview, presumably after it and other certificate holders suffered major losses on their \ninvestments because of high rates of default. Appellant Br. 9. \n U.S. Bank alleges that this analysis showed that 93.5% of the sampled loans in the GP2 \n10\n\nTrust were in breach, 99.8% of the sampled loans in the GP3 Trust were in breach, and \n100% of the sampled loans in the GP4 Trust were in breach. The breaches included \nmisrepresentations of borrower income, leading to a higher debt‐to‐income ratio than \nGreenPoint’s guidelines permitted; misrepresentations of occupancy status of homes to \nwhich the mortgage loans related, decreasing the value of the mortgage loans; improper \ncalculations of debt and debt‐to‐income ratios; failure to verify borrower assets or \n \n \n \n 9 \n \n \n\fBank submitted breach notices to GreenPoint on the following dates: March 19, \n\n2012, and August 24, 2012, for the GP2 Trust; March 19, 2012, for the GP3 Trust; \n\nand April 17, 2012, for the GP4 Trust. GreenPoint did not cure or repurchase within \n\nthe sixty‐ or ninety‐day periods established in the MLPAs and Trust Agreements, \n\nrespectively. \n\n II. Procedural History \n\n Almost immediately after the sixty‐day cure periods expired, the FHFA \n\ncommenced three actions against GreenPoint in New York Supreme Court, New \n\nYork County, “as conservator for” Freddie Mac and “on behalf of” U.S. Bank as \n\nTrustee. The FHFA filed summonses with notice for the GP2, GP3, and GP4 Trusts, \n\nrespectively, on May 30, 2012, June 29, 2012, and July 30, 2012, exactly one day \n\nahead of the six‐year anniversaries of the closing dates of the three Trusts. \n\nGreenPoint removed the actions to the United States District Court for the \n\nSouthern District of New York on October 24, 2012. On November 21, 2012, the \n\n\n\n\nqualifying loans with insufficient credit score; and incorrect calculations of loan‐to‐value \nand cumulative loan‐to‐value ratios, which, according to U.S. Bank, are allegedly “among \nthe most important measures of the risk of a mortgage loan.” J.A. 1130–41. \n \n \n \n 10 \n \n \n\fdistrict court consolidated the three actions and authorized the plaintiffs to file a \n\nsingle consolidated complaint, which they did on November 26, 2012. \n\n The FHFA dropped out of the litigation in January 2013, and U.S. Bank—\n\nnow the sole plaintiff—filed an amended consolidated complaint.11 The amended \n\nconsolidated complaint included three causes of action related to breach of \n\ncontract and indemnification. GreenPoint moved to dismiss, and the district court \n\ndenied the motion. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. \n\nFunding, Inc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2014 WL 1301944 (S.D.N.Y. \n\nMar. 31, 2014). \n\n The parties commenced discovery. Although they completed that task by \n\nearly December 2014, U.S. Bank requested a stay of further proceedings pending \n\nthe New York Court of Appeals’ resolution of an appeal taken from ACE Securities \n\n\n\n GreenPoint invoked federal jurisdiction under 28 U.S.C. § 1345, which provides that \n11\n\n“the district courts shall have original jurisdiction of all civil actions, suits or proceedings \ncommenced by the United States, or by any agency or officer thereof expressly authorized \nto sue by Act of Congress.” As the removal notices indicated, the FHFA is a federal \nagency for the purposes of § 1345. See 12 U.S.C. § 4511(a) (“There is established the \nFederal Housing Finance Agency, which shall be an independent agency of the Federal \nGovernment.”). When the FHFA dropped out of the suit, however, U.S. Bank filed its \namended consolidated complaint under diversity jurisdiction as well as 28 U.S.C. § 1345. \n \n \n \n 11 \n \n \n\fCorp. v. DB Structured Products, Inc., 112 A.D.3d 522 (1st Dep’t 2013), leave to appeal \n\ngranted by 23 N.Y.3d 906 (2014). Soon after the Court of Appeals issued its opinion, \n\nsee ACE Secs. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581 (2015) (“ACE”), U.S. \n\nBank moved for and was granted leave to file a second amended consolidated \n\ncomplaint (“SACC”). It filed that complaint, which is the focus of the present \n\nappeal, on March 3, 2016. \n\n The SACC mirrored the first amended consolidated complaint with respect \n\nto the first two causes of action: (1) breach of contract seeking specific \n\nperformance, based on GreenPoint’s failure to repurchase the noncompliant loans \n\nor cure its breach of the R & Ws; and (2) breach of contract seeking monetary \n\ndamages, based on the same allegations. The SACC expanded the third cause of \n\naction—indemnification based on language in the MLPAs and the Trust \n\nAgreements—to seek not only expenses incurred in connection with the first two \n\ncauses of action, but also a monetary award of $1.1 billion. Finally, the SACC \n\nadded a fourth cause of action for indemnification arising under the separate \n\nIndemnification Agreements. The fourth claim sought reimbursement for losses \n\n\n\n \n \n \n 12 \n \n \n\fbased on a separate set of R & Ws that GreenPoint made when the parties executed \n\nthe Indemnification Agreements. \n\n GreenPoint moved for summary judgment on the first three claims, arguing \n\nthey were time‐barred. It moved for dismissal of the fourth claim under Federal \n\nRules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that the FHFA and U.S. \n\nBank lacked standing and that U.S. Bank had failed to state a claim. The district \n\ncourt granted the motion for summary judgment and dismissed the fourth claim \n\nas time‐barred. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. Funding, \n\nInc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *10 (S.D.N.Y. \n\nMar. 29, 2017). The court found that the contractual claims (claims one and two) \n\nwere time‐barred because the FHFA filed the summonses with notice more than \n\nsix years after the statute of limitations began to run under New York law. Id. at \n\n*7. With respect to the third claim, seeking indemnification, the court found that \n\nU.S. Bank’s claim was “not one for indemnification” but instead was “more \n\nappropriately characterized as one to recover losses incurred by breach of \n\ncontract.” Id. at *8. Accordingly, the court concluded that the third claim, too, was \n\ntime‐barred. Finally, the court held that the fourth claim, also seeking \n \n \n \n 13 \n \n \n\findemnification, was time‐barred because it involved a new set of operative facts \n\nand therefore could not relate back to the original complaint pursuant to Federal \n\nRule of Civil Procedure 15(c), even assuming the original complaint was timely \n\nfiled. Id. at *9. U.S. Bank appealed. \n\n DISCUSSION \n\n We review a district court’s grant of summary judgment de novo, mindful \n\nthat summary judgment is appropriate only “if the movant shows that there is no \n\ngenuine dispute as to any material fact and the movant is entitled to judgment as \n\na matter of law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. \n\nCiv. P. 56(a)). We also review de novo a district court’s grant of a motion to dismiss, \n\nincluding its interpretation and application of statutes of limitations and \n\ncontractual terms. Deutsche Bank, 810 F.3d at 865. When we sit in diversity \n\njurisdiction and must decide a question of New York state law, we are bound “by \n\nthe law of New York as interpreted by the New York Court of Appeals.” Licci ex \n\nrel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (per curiam). \n\n In ACE, 25 N.Y.3d at 596, the New York Court of Appeals held that a cause \n\nof action for breach of R & Ws that guarantee particular facts as of a certain date, \n \n \n \n 14 \n \n \n\fbut do not guarantee future performance, accrues on the date those R & Ws \n\nbecome effective. We were called upon to apply ACE in Deutsche Bank. Deutsche \n\nBank involved facts similar to the case now before us: a trustee, Deutsche Bank, \n\nsought to recover from Quicken Loans, which originated a pool of mortgage loans \n\nthat Deutsche Bank later discovered breached R & Ws made in the mortgage‐loan \n\nagreements. 810 F.3d at 863. The issue was whether the trustee’s cause of action \n\nfor breach of the R & Ws accrued when the R & Ws became effective (making the \n\nclaims untimely) or when the trustee demanded repurchase or cure and was \n\nrebuffed (making the claims timely). Looking to ACE, we held that the trustee’s \n\ncause of action accrued “[i]mmediately upon effectiveness of the R & Ws,” because \n\nat that point, “the Trustee was entitled to demand the contractual remedy—cure \n\nor repurchase—as to any material breach.” Id. at 866. We also rejected the trustee’s \n\nargument that the remedy clause was substantive (meaning a condition precedent \n\nto a party’s performance) rather than procedural (seeking a remedy for a \n\npreexisting wrong). Id. at 867. Because we deemed the demand process to be \n\n“merely procedural,” we held that it did not “delay accrual of the cause of action,” \n\nmaking the trustee’s claims untimely. Id. (citing ACE, 25 N.Y.3d at 597). \n \n \n \n 15 \n \n \n\f U.S. Bank argues that, notwithstanding Deutsche Bank, ACE, and the \n\nnumerous cases that followed,12 its causes of action for breach of contract accrued \n\nnot when the R & Ws became effective, but when GreenPoint was made aware of \n\nthe breaches and failed to cure. According to U.S. Bank, this case is distinguishable \n\nfrom Deutsche Bank and ACE because here, sophisticated parties negotiated for a \n\ncontract provision establishing that a cause of action for a breach of the R & Ws \n\n“shall accrue,” J.A. 166, 269, only when the Trustee made a demand for \n\ncompliance. U.S. Bank made no such demand until 2012. \n\n While this appeal was pending, the New York Court of Appeals granted \n\nreview in a similar case, Deutsche Bank Nat’l Tr. Co. v. Flagstar Capital Mkts. Corp., \n\n32 N.Y.3d 139 (2018). U.S. Bank pinned its hopes on Flagstar and urged us to await \n\nthe New York high court’s decision. Flagstar, U.S. Bank argued, would \n\n“definitively determine the validity of an express accrual clause under New York \n\n\n See, e.g., U.S. Bank Nat’l Ass’n v. Dexia Real Estate Capital Mkts., 643 Fed. App’x 48 (2d \n12\n\nCir. 2016) (summary order); Wells Fargo Bank, NA v. JPMorgan Chase Bank, N.A., 643 Fed. \nApp’x 44 (2d Cir. 2016) (summary order); Homeward Residential, Inc. v. Sand Canyon Corp., \n12 Civ. 7319, 2018 WL 557913 (S.D.N.Y. Jan. 24, 2018); U.S. Bank Nat’l Ass’n v. Bank of Am., \nN.A., 15 Civ. 8153, 2016 WL 5118298 (S.D.N.Y. Sept. 20, 2016), appeal docketed, 16‐3560 (2d \nCir. 2016); Bank of N.Y. Mellon v. WMC Mortg., LLC, 151 A.D.3d 72 (1st Dep’t 2017); U.S. \nBank Nat’l Ass’n v. GreenPoint Mortg. Funding, Inc., 147 A.D.3d 79 (1st Dep’t 2016). \n \n \n \n 16 \n \n \n\flaw.” Appellant Br. 19. Flagstar did just that, but U.S. Bank’s prediction of \n\nvindication proved wrong. Under Flagstar, an express accrual clause cannot \n\noperate to delay the commencement of a limitations period under New York law, \n\nregardless of the parties’ sophistication or clearly expressed intentions. See \n\nFlagstar, 32 N.Y.3d at 139. In other words, Flagstar clarified the sole issue that U.S. \n\nBank asked us to resolve: namely, whether sophisticated parties could create a \n\nsubstantive condition precedent by including an express accrual clause that would \n\ndelay the running of the statute of limitations. See id. The New York Court of \n\nAppeals answered that question in the negative. The rules from ACE and Deutsche \n\nBank therefore govern U.S. Bank’s contractual claims here. \n\n I. Causes of Action One and Two: Breach of Contract \n\n The statute of limitations on a breach of contract claim in New York is six \n\nyears, and this period begins to run when a breach occurs. See N.Y. C.P.L.R. \n\n§§ 203(a), 213(2); Deutsche Bank, 810 F.3d at 865 (citing Ely‐Cruikshank Co. v. Bank of \n\nMontreal, 81 N.Y.2d 399, 402 (1993)). As we explained in Deutsche Bank on facts \n\nindistinguishable from those now before us, “the statute of limitations began to \n\n\n\n \n \n \n 17 \n \n \n\frun on the date the R & Ws became effective and were either true or false at that \n\ntime.” 810 F.3d at 867. \n\n The undisputed facts are that the effective dates of the R & Ws were May 15, \n\n2006 (GP2); June 15, 2006 (GP3);13 and July 17, 2006 (GP4). The FHFA filed in state \n\ncourt on May 30, 2012 (GP2); June 29, 2012 (GP3); and July 30, 2012 (GP4). As the \n\ndistrict court correctly concluded, “[e]ach of these actions was filed over six years \n\nafter the statute of limitations on the breach of contract actions began running.” \n\nLehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *7. \n\nThe first two causes of action were therefore untimely under settled New York \n\nlaw. The district court properly granted summary judgment to GreenPoint. \n\nII. Cause of Action Three: Indemnification Under Section 9 of the MLPAs \n\n When an aggrieved party recovers not from a wrongdoer but from a third \n\nparty, the third party’s subsequent claim against the wrongdoer becomes one for \n\n\n\n The district court’s reasoned opinion includes a scrivener’s error in its recitation of the \n13\n\neffective dates of the R & Ws. See Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \n2017 WL 1293773, at *7 (indicating that the last sale date for the GP3 Trust was “June 15, \n2008”). It is clear, however, from the rest of the opinion, the complaint, the parties’ \nsubmissions to the district court, and the parties’ papers on appeal that the final date of \nsale for loans in the GP3 Trust was June 15, 2006. \n \n \n \n 18 \n \n \n\findemnification. See Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 200 (2d Cir. \n\n2003) (applying New York law) (quoting Hooper Assocs., Ltd. v. AGS Computs., Inc., \n\n74 N.Y.2d 487, 492–93 (1989)); see also Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 \n\n(1990) (indemnification arises when “a party held legally liable to plaintiff shifts \n\nthe entire loss to another”). \n\n Thus, under New York law, absent “unmistakably clear” language in an \n\nindemnification provision that demonstrates that the parties intended the clause \n\nto cover first‐party claims, an agreement between two parties “to indemnify” each \n\nother does not mean that one party’s failure to perform gives rise to a claim for \n\nindemnification. Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, \n\n21 (2d Cir. 1996); see also BNP Paribas Mortg. Corp. v. Bank of Am., N.A., 778 F. Supp. \n\n2d 375, 415 (S.D.N.Y. 2011) (“Unless the indemnification clause refers exclusively \n\nor unequivocally to claims between the indemnitor and indemnitee, the court \n\nmust find the agreement to be lacking evidence of the required intent to cover such \n\nclaims.” (internal quotation marks omitted)). Consequently, absent such language, \n\n“[w]here parties agree to ‘indemnify’ each other for losses incurred by a breach of \n\ncontract, where those lo[s]ses do not relate to liability to a third party, the \n \n \n \n 19 \n \n \n\fcharacterization of ‘indemnification’ is no more than an epithet for recovery for \n\nbreach of contract.” Xerox State & Local Sols., Inc. v. Xchanging Sols. (USA), Inc., 216 \n\nF. Supp. 3d 355, 364 (S.D.N.Y. 2016). Put simply, “[a]n action does not become \n\n[one] for indemnity merely because the pleader has so denominated it.” Peoples’ \n\nDemocratic Rep. of Yemen v. Goodpasture, Inc., 782 F.2d 346, 350 (2d Cir. 1986) \n\n(quoting Bunker v. Bunker, 80 A.D.2d 817, 817 (1st Dep’t 1981)) (internal quotation \n\nmarks omitted). \n\n Here, the distinction between a claim for breach of contract and one for \n\nindemnification is relevant in determining the timeliness of U.S. Bank’s third \n\nclaim. Under New York law, a cause of action for contractual indemnification \n\n“does not arise until liability is incurred by way of actual payment” to a third \n\nparty. Varo, Inc. v. Alvis PLC, 261 A.D.2d 262, 265 (1st Dep’t 1999) (internal \n\nquotation marks omitted); see also McDermott v. City of New York, 50 N.Y.2d 211, \n\n216 (1980). Therefore, if U.S. Bank is correct that it has a cause of action for \n\nindemnification, the third claim in the SACC was timely. If, however, U.S. Bank’s \n\nindemnification claim is merely a reformulation of its breach‐of‐contract claims, \n\n\n\n \n \n \n 20 \n \n \n\fthe third cause of action was untimely for the same reasons as the first two causes \n\nof action. \n\n According to U.S. Bank, GreenPoint should pay for breaching the promises \n\nit made in the MLPAs concerning the quality of the mortgages it sold. This claim, \n\nU.S. Bank insists, is not the same as its breach of contract claims because “the \n\nparties here bargained for two separate remedies contained in two separate \n\nsections of the MLPAs.” Appellant Br. 28. U.S. Bank contends the third claim is \n\n“independent” because the indemnification provisions found in Section 9 of the \n\nMLPAs allow it to “pursue any and all remedies otherwise available at law or in \n\nequity, including, but not limited to, the right to seek damages,” J.A. 168, 270, in \n\naddition to the repurchase provision found in Section 8. As counsel explained at \n\noral argument, U.S. Bank is seeking “damages that relate to the \n\nmisrepresentations, so that unlike the initial claim[s], there’s an additional element \n\nof proof that has to be established.” Oral Arg. at 2:10–3:30. \n\n Had U.S. Bank paid a certificate holder for harms to the certificate holder \n\nstemming from GreenPoint’s breach, its claim against Greenpoint would be for \n\nindemnity. But the claim here seeks payment to U.S. Bank arising from \n \n \n \n 21 \n \n \n\fGreenPoint’s violations of the R & Ws that it made to U.S. Bank as Trustee. It is a \n\nbreach of contract claim, plain and simple. \n\n We reach this conclusion for two reasons. First, Section 9 of the MLPAs does \n\nnot “unequivocally” or in “unmistakably clear” language extend to first‐party \n\nclaims. See J.A. at 167–68, 270 (“[GreenPoint] agrees to indemnify [U.S. Bank] and \n\nhold it harmless from and against any and all claims, losses, damages, penalties, \n\nfines, forfeitures, legal fees and related costs, judgments, and any other costs, fees \n\nand expenses that [U.S. Bank] may sustain . . . [and GreenPoint] shall immediately \n\nnotify [U.S. Bank] if a claim is made by a third party with respect to this Agreement \n\nor the Mortgage Loans.”). In the absence of such language, the provision must be \n\nread to contemplate an actual indemnification scenario, in which U.S. Bank would \n\nbe entitled to repayment if it paid out costs to a third party. U.S. Bank does not \n\nallege that to date it has paid on claims to third parties directly tied to GreenPoint’s \n\nbreaches of its R & Ws. \n\n Second, the allegations in the SACC belie the argument that U.S. Bank is \n\nseeking to recover something different under its indemnification claim than what \n\nit seeks under the breach of contract claims. See J.A. at 1148–50, ¶ 99 (“To date, the \n \n \n \n 22 \n \n \n\fTrusts have sustained approximately $1.1 billion in aggregate collateral‐level \n\nlosses and damages as a result of GreenPoint’s breaches of its R & Ws and failure to \n\nrepurchase breaching Mortgage Loans.” (emphasis added)). The argument that \n\nSection 9 provides an “independent” remedy is, therefore, meritless: the \n\nindemnification claim cannot be “independent” if its success directly depends on \n\nthe breaches of the R & Ws in the MLPAs outlined in the contract claims. As the \n\nNew York Court of Appeals explained in ACE, even if two sections of the contract \n\nprovide alternative remedies for the same breach, “the underlying act the Trust \n\ncomplains of is the same: the quality of the loans and their conformity with the \n\n[R & Ws].” 25 N.Y.3d at 596. \n\n Thus, U.S. Bank’s “indemnification” claim is in reality a repackaged version \n\nof its breach of contract claims. See Goodpasture, 782 F.2d at 350. There is no \n\n“indemnified” party who covered a loss that should have been paid by a third‐\n\nparty obligor. There is thus no “independent” claim for indemnification. U.S. Bank \n\ncannot circumvent the statute of limitations by recasting its contract claim as one \n\n\n\n\n \n \n \n 23 \n \n \n\ffor indemnification. The district court properly dismissed the third claim as \n\nuntimely.14 \n\nIII. Cause of Action Four: Breach of the Indemnification Agreements \n\n In its fourth claim, raised for the first time in the SACC filed on March 3, \n\n2016, U.S. Bank alleges breaches of the Indemnification Agreements. These three \n\nagreements (separate and distinct from the indemnification clauses in the MLPAs) \n\nare documents the parties signed immediately before they closed on the MLPAs. \n\nIn them, GreenPoint independently represented that it had complied with the \n\nR & Ws it made in the MLPAs. All three agreements contain the same statement: \n\n“GreenPoint hereby represents and warrants, as of the date of the Prospectus \n\nSupplement, that the GreenPoint Information is true and correct in all material \n\n\n\n\n GreenPoint also argues that this claim should be dismissed under Federal Rule of Civil \n14\n\nProcedure 12(b)(1) because the FHFA did not have standing to file the summonses with \nnotice in the first instance. U.S. Bank may not, GreenPoint argues, be substituted as the \nreal party in interest under Federal Rule of Civil Procedure 17(a) because there was no \n“honest mistake” in the initial naming of the plaintiff. In a letter brief it submitted to this \nCourt pursuant to Federal Rule of Appellate Procedure 28(j), U.S. Bank directs our \nattention to a recent opinion from this Court holding that “a plaintiff’s honest mistake is \nnot a precondition for granting a Rule 17(a)(3) motion.” Klein ex rel. Qlik Techs., Inc. v. Qlik \nTechs., Inc., 906 F.3d 215, 227 (2d Cir. 2018). Because we agree with the district court that \nU.S. Bank’s claim was untimely on a different basis, we decline to address this argument. \n \n \n \n 24 \n \n \n\frespects and includes all ‘Seller Information’ as defined in the [MLPAs].” J.A. 1063 \n\n(GP2), 1072 (GP3), 1081 (GP4). \n\n According to U.S. Bank, under Federal Rule of Civil Procedure 15(c), its \n\nclaim for breach of the Indemnification Agreements relates back to the filing dates \n\nof the state court summonses with notice, therefore rendering the claim timely, at \n\nleast as to the GP2 and GP4 Trusts.15 We disagree. \n\n Rule 15(c) provides that an amendment to a pleading “relates back to the \n\ndate of the original pleading” where, as relevant here, “the amendment asserts a \n\nclaim or defense that arose out of the conduct, transaction, or occurrence set out—\n\nor attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). \n\n\n\n\n15 The FHFA filed its summons with notice for the GP2 Trust on May 30, 2012, exactly six \nyears after May 30, 2006, the date that the GP2 Indemnification Agreement was executed. \nTherefore, if U.S. Bank’s claim were to relate back to this date, it would be timely. \nSimilarly, the GP4 Indemnification Agreement was executed on July 28, 2006, and six \nyears from that date was July 28, 2012, a Saturday. The time to file therefore fell on “the \nnext succeeding business day”—Monday, July 30, 2012. See N.Y. Gen. Constr. § 25‐a(1); \nFed. R. Civ. P. 6(a)(1). This is precisely the day that the FHFA filed its summons with \nnotice, and, consequently, if U.S. Bank’s claim were to relate back to this date, it would \nbe timely as well. U.S. Bank’s claim as to the GP3 Trust, however, is untimely even under \nits “relation‐back” theory, because the GP3 Indemnification Agreement was executed on \nJune 28, 2006, and the FHFA filed its summons with notice on June 29, 2012, one day after \nthe statute of limitations had run. \n \n \n \n 25 \n \n \n\fThe purpose of Rule 15(c)’s relation‐back provision is “to balance the interests of \n\nthe defendant protected by the statute of limitations with the preference expressed \n\nin the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for \n\nresolving disputes on their merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, \n\n550 (2010). “[T]he central inquiry is whether adequate notice of the matters raised \n\nin the amended pleading has been given to the opposing party within the statute \n\nof limitations by the general fact situation alleged in the original pleading.” Slayton \n\nv. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (internal quotation marks \n\nomitted). \n\n Thus, “even where an amended complaint tracks the legal theory of the first \n\ncomplaint, claims that are based on an entirely distinct set of factual allegations \n\nwill not relate back.” Id. (internal quotation marks omitted). This includes claims \n\nthat are based on different contracts.16 \n\n\n\n See, e.g., 6A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure \n16\n\n§ 1497 (3d ed. 2018) (“[A]mendments alleging . . . the breach of an independent \ncontract . . . may be subject to the defense of statute of limitations because of a failure to \nmeet the transaction standard.”); see also Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d \n992, 994 (8th Cir. 1989); In re Rationis Enters., Inc. of Panama, 45 F. Supp. 2d 365, 367 \n(S.D.N.Y. 1999). \n \n \n \n 26 \n \n \n\f The SACC’s allegations of breaches of the GP2 and GP4 Indemnification \n\nAgreements do not relate back to the filing date of the FHFA’s original pleading \n\nin New York Supreme Court. The original summonses with notice involved \n\nactions for breach of contract and declaratory relief (GP2) and breach of contract, \n\ndeclaratory relief, specific performance, and indemnification (GP3 and GP4) under \n\nthe provisions of the MLPAs. J.A. 23 (GP2), 38 (GP3), 53 (GP4). The focus of the \n\nsummonses was GreenPoint’s contractual obligation “to cure or repurchase from \n\nthe Trust[s] those mortgage loans where R & Ws have been breached.” Id. 24, 39, \n\n54. The summonses, in other words, contained no mention of the Indemnification \n\nAgreements, and sought recovery only for breaches of the R & Ws in the MLPAs, \n\nwhich governed the initial sale of the mortgage loans from GreenPoint to Lehman. \n\nAlthough the underlying R & Ws in the MLPAs and the Indemnification \n\nAgreements employ the same terms, we cannot conclude that GreenPoint was on \n\nnotice when the FHFA filed the original complaint that the litigation would also \n\ninvolve the Indemnification Agreements. Indeed, the FHFA had no reason to \n\ninclude any claims related to the Indemnification Agreements, in which it had no \n\ninterest and to which it was never a signatory. Those documents were intended to \n \n \n \n 27 \n \n \n\foutline the scope of GreenPoint’s obligation to indemnify Lehman and its \n\nsuccessors for claims brought against Lehman by third parties—not to protect \n\ncertificate holders (like the FHFA) from the sale of unsound securitized mortgage \n\nloans. \n\n Simply put, the original complaint and the SACC invoke separate contracts; \n\nthe signatories to the Indemnification Agreements and the MLPAs are different; \n\nand the nature of the claims and the remedies they seek are not the same. See \n\nASARCO LLC v. Goodwin, 756 F.3d 191, 202–03 (2d Cir. 2014); 6A Charles Alan \n\nWright & Arthur R. Miller, Federal Practice & Procedure § 1497 (3d ed. 2018) \n\n(collecting cases); see also Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \n\n2017 WL 1293773, at *9 (“[I]t cannot be said that based on the facts alleged in the \n\noriginal pleading, GreenPoint was given adequate notice that Plaintiff would \n\nbring claims pursuant to the Indemnification Agreements.”). The fourth cause of \n\naction does not relate back to the original filing for claims based on any of the \n\nTrusts, and that cause of action was therefore untimely asserted. \n\n\n\n\n \n \n \n 28 \n \n \n\f CONCLUSION \n\n The district court properly dismissed U.S. Bank’s claims as untimely. For the \n\nforegoing reasons, the judgment of the district court granting GreenPoint’s \n\nmotions for summary judgment and to dismiss is AFFIRMED.\n\n\n\n\n \n \n \n 29", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4364982/", "author_raw": "WESLEY, Circuit Judge:"}]} | WESLEY | CHIN | CARNEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4587729/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: LEHMAN XS TRUST, SERIES 2006-GP2, (LXS 2006-GP2), BY U.S. BANK NATIONAL ASSOCIATION, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP3, (LXS 2006-GP3), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Lehman XS Trust, Series 2006-GP4, (LXS 2006-GP4), by U.S. Bank National Association, Solely in Its Capacity as Trustee, Plaintiffs-Appellants, v. GREENPOINT MORTGAGE FUNDING, INC., Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-06\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐1290 \nLehman XS Trust v. Greenpoint Mortgage Funding, Inc. \n\n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n ______________ \n \n August Term 2017 \n \n (Argued: April 17, 2018 Decided: February 6, 2019) \n \n Docket 17‐1290 \n \n LEHMAN XS TRUST, SERIES 2006‐GP2, (LXS 2006‐GP2), by U.S. BANK \n NATIONAL ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS \n TRUST, SERIES 2006‐GP3, (LXS 2006‐GP3), by U.S. BANK NATIONAL \n ASSOCIATION, solely in its capacity as Trustee, LEHMAN XS TRUST, SERIES \n 2006‐GP4, (LXS 2006‐GP4), by U.S. BANK NATIONAL ASSOCIATION, solely in \n its capacity as Trustee, \n \n Plaintiffs‐Appellants, \n \n v. \n \n GREENPOINT MORTGAGE FUNDING, INC., \n \n Defendant‐Appellee.* \n ______________ \n \nBefore: \n WESLEY, CHIN, AND CARNEY, Circuit Judges. \n \n Plaintiff U.S. Bank National Association (“U.S. Bank”) appeals from a \njudgment entered in the United States District Court for the Southern District of \nNew York (Carter, J.) dismissing its second amended consolidated complaint as \nuntimely. U.S. Bank argues, among other things, that the district court erred in \n\n The Clerk of the Court is respectfully directed to amend the official caption as noted \n*\n\nabove. \n\fdismissing its complaint because (1) its claim for indemnification under the \ncontract in dispute is independent of its claim for breach of that contract, and the \nformer claim therefore was timely filed in federal court; and (2) its claim for \nindemnification based on separate contracts executed at a later date relates back \nto the original state‐court filing under Federal Rule of Civil Procedure 15(c). We \ndisagree. AFFIRMED. \n _________________ \n\n HECTOR TORRES (David J. Abrams, David J. Mark, on the brief), \n Kasowitz Benson Torres LLP, New York, NY, for Plaintiffs‐\n Appellants. \n\n THEODORE R. SNYDER (James A. Murphy, New York, NY; \n Cameron S. Matheson, Glen Allen, VA, on the brief), Murphy & \n McGonigle, P.C., for Defendant‐Appellee. \n\n _________________ \n\nWESLEY, Circuit Judge: \n\n This appeal is the most recent chapter in the ongoing saga of the last \n\ndecade’s housing finance crisis. At the core of the appeal are three trusts (the \n\n“Trusts”) composed of residential mortgage‐backed securities that Defendant‐\n\nAppellee GreenPoint Mortgage Funding, Inc. (“GreenPoint”) sold in 2006 to \n\nLehman Brothers Holding, Inc., and Lehman Brothers Bank, FSB (collectively, \n\n“Lehman”), with Plaintiff‐Appellant U.S. Bank acting as Trustee. Six years after \n\nthe sale, in 2012, a forensic review of the Trusts revealed that nearly all of the \n\n\n \n \n \n 2 \n \n \n\fsample mortgages GreenPoint sold to Lehman were in breach of the \n\nrepresentations and warranties (“R & Ws”) GreenPoint made in its Flow Mortgage \n\nLoan Purchase and Warranties Agreements (“MLPAs”) with Lehman. \n\n GreenPoint failed to cure or repurchase the loans within the contractual time \n\nframes. As a result, the Federal Housing Finance Agency (“FHFA”)—acting on \n\nbehalf of U.S. Bank as Trustee and as conservator for the Federal Home Loan \n\nMortgage Corporation (“Freddie Mac”),1 which in turn was the beneficial owner \n\nof some of the certificates issued by the Trusts—filed summonses with notice in \n\nNew York Supreme Court.2 \n\n GreenPoint removed the actions to federal court, at which point the FHFA \n\ndropped out of the litigation and U.S. Bank as Trustee filed an amended and \n\n\n\n\n On September 6, 2008, Freddie Mac was placed into conservatorship by the FHFA \n1\n\npursuant to 12 U.S.C. § 4617.\n2 In the New York courts, a plaintiff commences an action “by filing a summons and \ncomplaint or summons with notice.” N.Y. C.P.L.R. § 304(a). A party may elect to file a \nsummons with notice if the party is not prepared to serve the complaint; in that case, the \nsummons must put the defendant on notice of “the nature of the action and the relief \nsought,” as well as “the sum of money for which judgment may be taken in case of \ndefault.” Id. § 305(b). \n \n \n \n 3 \n \n \n\fconsolidated complaint.3 After discovery and the filing of a second amended \n\nconsolidated complaint, GreenPoint moved for summary judgment as to three \n\ncounts of this complaint, and to dismiss as to the fourth count, arguing, among \n\nother things, that the claims were barred by New York’s statute of limitations. \n\n The district court concluded, for various reasons discussed in this opinion, \n\nthat none of U.S. Bank’s claims was timely. The issue before this Court is whether \n\nany of U.S Bank’s claims survive GreenPoint’s motions for summary judgment \n\nand dismissal. We affirm the district court’s conclusion that none does. \n\n BACKGROUND \n\n I. Factual Background \n\n In 2006, Lehman, not a party to this appeal, purchased aggregated pools of \n\nresidential home mortgages from GreenPoint.4 The sales were governed by two \n\n\n\n3 The FHFA ceased prosecuting its claims in this case because of a “no action” clause \ncontained in the Trust Agreements. A “no action” clause bars “individual certificate \nholders from bringing independent law suits which are more effectively brought by the \ntrustee unless certain exceptions are met.” Deutsche Bank Nat’l Tr. Co. v. Quicken Loans Inc., \n810 F.3d 861, 868 n.8 (2d Cir. 2015) (cleaned up) (internal quotation marks omitted) \n(“Deutsche Bank”). \n4 In 2006, before Lehman began bankruptcy proceedings, U.S. Bank entered into \nagreements to serve as Trustee of the Trusts at issue in this case. \n \n \n \n 4 \n \n \n\fMLPAs, each of which contained a series of R & Ws as to the quality of the \n\nmortgage loans.5 When Lehman purchased the loans from GreenPoint in 2006, \n\nthey had an aggregate principal balance exceeding $3.39 billion. \n\n Lehman conveyed the mortgage loans and its rights under the MLPAs to a \n\ndepositor (also not a party to this appeal), which then conveyed the mortgage \n\nloans to three Trusts—GP2, GP3, and GP4—via another set of contracts \n\ndenominated “Trust Agreements.”6 The last dates on which Lehman purchased \n\nmortgage loans from GreenPoint (i.e., the effective dates of the R & Ws) were May \n\n15, 2006 (GP2), June 15, 2006 (GP3), and July 17, 2006 (GP4). The Trusts closed on \n\n\n5 Although the MLPAs at issue are separate contracts, the language relevant to the issues \non appeal is identical in the two documents, and U.S. Bank treats the documents as one \nin its brief to this Court. The first MLPA was signed between Lehman Brothers Bank, FSB \nand GreenPoint in 2001; the second MLPA was signed between Lehman Brothers \nHoldings, Inc. and GreenPoint in 2006. \n6 The “depositor” here was a third‐party entity called Structured Asset Securities \nCorporation (“SASC”). SASC’s role was to create the three Trusts and, “[c]oncurrently \nwith the execution” of the Trust Agreements, to “transfer, assign, set over, deposit with \nand otherwise convey to the Trustee, without recourse . . . all the right, title and interest \nof the Depositor in and to the Mortgage Loans.” J.A. 387, § 2.01(a). In other words, the \ndepositor’s role was to create the Trusts. In the same moment that the parties closed on \nthe MLPAs, SASC acquired an interest in the Trust’s assets, placed the assets in the Trusts, \nand transferred the Trusts to the Trustee (U.S. Bank). The signatories to the Trust \nAgreements were SASC as depositor; U.S. Bank as Trustee; Aurora Loan Services LLC as \nmaster servicer (a role not relevant to this appeal); and Lehman as underwriter. \n \n \n \n 5 \n \n \n\fthe MLPAs on May 31, 2006 (GP2), June 30, 2006 (GP3), and July 31, 2006 (GP4). \n\nOnce the mortgage loans were deposited into the Trusts, they were securitized and \n\ncertificates were issued representing rights to cash flows from the securitized loan \n\nportfolios. Investors then purchased the certificates, thereby acquiring an \n\nownership interest in the Trusts. Freddie Mac was one of these investors.7 \n\n The R & Ws contained in the MLPAs and the Trust Agreements made \n\nassertions about the quality of individual mortgage loans and the mortgage loan \n\npools. Specifically, Section 7 of the MLPAs represented that the mortgage loans \n\nwere “underwritten in accordance with [GreenPoint’s] Underwriting Guidelines,” \n\nJ.A. 160, 261; that the mortgage loan schedules were “complete, true and correct,” \n\nid. 154, 255; that GreenPoint possessed complete mortgage files, id. 161, 262; and \n\nthat, except as specifically scheduled, the loan‐to‐value ratio for the mortgage \n\nloans did not exceed 80%, id. 158, 259. The MLPAs provided that GreenPoint made \n\n\n7 Freddie Mac was the beneficial owner of certificates in a single class issued by each of \nthe Trusts. It did not, however, own more than 25% of “each Class affected thereby” the \nalleged default, a condition the contractual no action clause required for a certificate \nholder to commence litigation. Although we note that GreenPoint appears to be correct \nthat the FHFA (acting as conservator for Freddie Mac) did not satisfy this condition, we \nexpress no judgment on GreenPoint’s merits argument that the FHFA lacked standing to \nbring suit because of the no action clause. \n \n \n \n 6 \n \n \n\fthese R & Ws “as of” each closing date. Section 2.03 of the Trust Agreements \n\nincorporated the R & Ws from the MLPAs. \n\n In an effort to ensure compliance with the R & Ws, the MLPAs and the Trust \n\nAgreements created a contractual remedy in the event that GreenPoint breached. \n\nUnder Section 8 of the MLPAs, upon learning of a breach, GreenPoint had sixty \n\ndays to “use its best efforts promptly to cure such [b]reach in all material respects.” \n\nId. 165, 268. If the breach could not be cured, Section 8 of the MLPAs provided that \n\nGreenPoint “shall, at the Purchaser’s option, repurchase such Mortgage Loan” at \n\nan established repurchase price. Id. The Trust Agreements included an identical \n\nclause, except they gave GreenPoint ninety days from the discovery of the breach \n\nto cure or repurchase. The same section of the MLPAs contained an Accrual \n\nProvision that established how the parties would proceed in the event of a breach.8 \n\n\n\n\n8 The Accrual Provision states: \n Any cause of action against [GreenPoint] relating to or arising out of the \n Breach of any [R & Ws] . . . shall accrue as to any Mortgage Loan upon \n (i) discovery of such Breach by the Purchaser or notice thereof by \n [GreenPoint] to the Purchaser, (ii) failures by [GreenPoint] to cure such \n Breach or repurchase such Mortgage Loan as specified above, and \n \n \n \n 7 \n \n \n\f Section 9 of the MLPAs also contained an indemnification clause, which \n\nreads, in relevant part: \n\n [GreenPoint] agrees to indemnify [Lehman] and hold it harmless \n from and against any and all claims, losses, damages, penalties, fines, \n forfeitures, legal fees and related costs, judgments, and any other \n costs, fees and expenses that [Lehman] may sustain in any way \n related to (i) any act or omission on the part of [GreenPoint] or any \n other person or entity in the origination, receiving, processing, \n funding or servicing any Mortgage Loan prior to the related Transfer \n Date or otherwise arising from the transfer of servicing of the \n Mortgage Loans provided for in this Agreement, [and] (ii) any \n assertion based on, grounded upon [or] resulting from a Breach of any \n of [GreenPoint’s R & Ws] contained herein . . . . [GreenPoint] shall \n immediately notify [Lehman] if a claim is made by a third party with \n respect to this Agreement or the Mortgage Loans . . . \n \nJ.A. 167, 270. \n \n In addition to the indemnification provisions included in the MLPAs, \n\nGreenPoint (together with Lehman and SASC) entered into separate \n\nIndemnification Agreements for each Trust. The agreements provided that \n\nGreenPoint would “indemnify and hold harmless” the other parties to the MLPAs \n\n\n\n\n (iii) demand upon [GreenPoint] by the Purchaser for compliance with this \n Agreement. \nJ.A. 166, 269. \n \n \n \n 8 \n \n \n\fand Trust Agreements “from and against any and all losses, claims, liabilities, \n\ndamages, penalties, fines, forfeitures, legal fees and expenses and related costs, \n\njudgments, and any other costs, fees and expenses” that “arise out of or are based \n\nupon any untrue statement or alleged untrue statement of any material fact” or \n\nthe omission of any such fact in the information GreenPoint provided to Lehman. \n\nId. 1062, 1071, 1080. The relevant “as of” dates for the Indemnification Agreements \n\nwere May 30, 2006 (GP2); June 28, 2006 (GP3); and July 28, 2006 (GP4). \n\n In 2012, Freddie Mac conducted a forensic review of the loan files9 and \n\ndetermined that an overwhelming percentage of the mortgage loans in the Trusts \n\nbreached GreenPoint’s R & Ws under the MLPAs and Trust Agreements.10 U.S. \n\n\n9 The operative complaint discusses the forensic review in the passive voice, making it \nimpossible for us to determine from the complaint alone who initiated the review in 2012 \nand why. See, e.g., J.A. 1129 ¶ 41 (“Forensic reviews were undertaken . . . .“). However, \nU.S. Bank’s brief to this Court explains that Freddie Mac—not U.S. Bank—conducted the \nreview, presumably after it and other certificate holders suffered major losses on their \ninvestments because of high rates of default. Appellant Br. 9. \n U.S. Bank alleges that this analysis showed that 93.5% of the sampled loans in the GP2 \n10\n\nTrust were in breach, 99.8% of the sampled loans in the GP3 Trust were in breach, and \n100% of the sampled loans in the GP4 Trust were in breach. The breaches included \nmisrepresentations of borrower income, leading to a higher debt‐to‐income ratio than \nGreenPoint’s guidelines permitted; misrepresentations of occupancy status of homes to \nwhich the mortgage loans related, decreasing the value of the mortgage loans; improper \ncalculations of debt and debt‐to‐income ratios; failure to verify borrower assets or \n \n \n \n 9 \n \n \n\fBank submitted breach notices to GreenPoint on the following dates: March 19, \n\n2012, and August 24, 2012, for the GP2 Trust; March 19, 2012, for the GP3 Trust; \n\nand April 17, 2012, for the GP4 Trust. GreenPoint did not cure or repurchase within \n\nthe sixty‐ or ninety‐day periods established in the MLPAs and Trust Agreements, \n\nrespectively. \n\n II. Procedural History \n\n Almost immediately after the sixty‐day cure periods expired, the FHFA \n\ncommenced three actions against GreenPoint in New York Supreme Court, New \n\nYork County, “as conservator for” Freddie Mac and “on behalf of” U.S. Bank as \n\nTrustee. The FHFA filed summonses with notice for the GP2, GP3, and GP4 Trusts, \n\nrespectively, on May 30, 2012, June 29, 2012, and July 30, 2012, exactly one day \n\nahead of the six‐year anniversaries of the closing dates of the three Trusts. \n\nGreenPoint removed the actions to the United States District Court for the \n\nSouthern District of New York on October 24, 2012. On November 21, 2012, the \n\n\n\n\nqualifying loans with insufficient credit score; and incorrect calculations of loan‐to‐value \nand cumulative loan‐to‐value ratios, which, according to U.S. Bank, are allegedly “among \nthe most important measures of the risk of a mortgage loan.” J.A. 1130–41. \n \n \n \n 10 \n \n \n\fdistrict court consolidated the three actions and authorized the plaintiffs to file a \n\nsingle consolidated complaint, which they did on November 26, 2012. \n\n The FHFA dropped out of the litigation in January 2013, and U.S. Bank—\n\nnow the sole plaintiff—filed an amended consolidated complaint.11 The amended \n\nconsolidated complaint included three causes of action related to breach of \n\ncontract and indemnification. GreenPoint moved to dismiss, and the district court \n\ndenied the motion. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. \n\nFunding, Inc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2014 WL 1301944 (S.D.N.Y. \n\nMar. 31, 2014). \n\n The parties commenced discovery. Although they completed that task by \n\nearly December 2014, U.S. Bank requested a stay of further proceedings pending \n\nthe New York Court of Appeals’ resolution of an appeal taken from ACE Securities \n\n\n\n GreenPoint invoked federal jurisdiction under 28 U.S.C. § 1345, which provides that \n11\n\n“the district courts shall have original jurisdiction of all civil actions, suits or proceedings \ncommenced by the United States, or by any agency or officer thereof expressly authorized \nto sue by Act of Congress.” As the removal notices indicated, the FHFA is a federal \nagency for the purposes of § 1345. See 12 U.S.C. § 4511(a) (“There is established the \nFederal Housing Finance Agency, which shall be an independent agency of the Federal \nGovernment.”). When the FHFA dropped out of the suit, however, U.S. Bank filed its \namended consolidated complaint under diversity jurisdiction as well as 28 U.S.C. § 1345. \n \n \n \n 11 \n \n \n\fCorp. v. DB Structured Products, Inc., 112 A.D.3d 522 (1st Dep’t 2013), leave to appeal \n\ngranted by 23 N.Y.3d 906 (2014). Soon after the Court of Appeals issued its opinion, \n\nsee ACE Secs. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581 (2015) (“ACE”), U.S. \n\nBank moved for and was granted leave to file a second amended consolidated \n\ncomplaint (“SACC”). It filed that complaint, which is the focus of the present \n\nappeal, on March 3, 2016. \n\n The SACC mirrored the first amended consolidated complaint with respect \n\nto the first two causes of action: (1) breach of contract seeking specific \n\nperformance, based on GreenPoint’s failure to repurchase the noncompliant loans \n\nor cure its breach of the R & Ws; and (2) breach of contract seeking monetary \n\ndamages, based on the same allegations. The SACC expanded the third cause of \n\naction—indemnification based on language in the MLPAs and the Trust \n\nAgreements—to seek not only expenses incurred in connection with the first two \n\ncauses of action, but also a monetary award of $1.1 billion. Finally, the SACC \n\nadded a fourth cause of action for indemnification arising under the separate \n\nIndemnification Agreements. The fourth claim sought reimbursement for losses \n\n\n\n \n \n \n 12 \n \n \n\fbased on a separate set of R & Ws that GreenPoint made when the parties executed \n\nthe Indemnification Agreements. \n\n GreenPoint moved for summary judgment on the first three claims, arguing \n\nthey were time‐barred. It moved for dismissal of the fourth claim under Federal \n\nRules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that the FHFA and U.S. \n\nBank lacked standing and that U.S. Bank had failed to state a claim. The district \n\ncourt granted the motion for summary judgment and dismissed the fourth claim \n\nas time‐barred. See Lehman XS Tr., Series 2006‐GP2 v. GreenPoint Mortg. Funding, \n\nInc., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *10 (S.D.N.Y. \n\nMar. 29, 2017). The court found that the contractual claims (claims one and two) \n\nwere time‐barred because the FHFA filed the summonses with notice more than \n\nsix years after the statute of limitations began to run under New York law. Id. at \n\n*7. With respect to the third claim, seeking indemnification, the court found that \n\nU.S. Bank’s claim was “not one for indemnification” but instead was “more \n\nappropriately characterized as one to recover losses incurred by breach of \n\ncontract.” Id. at *8. Accordingly, the court concluded that the third claim, too, was \n\ntime‐barred. Finally, the court held that the fourth claim, also seeking \n \n \n \n 13 \n \n \n\findemnification, was time‐barred because it involved a new set of operative facts \n\nand therefore could not relate back to the original complaint pursuant to Federal \n\nRule of Civil Procedure 15(c), even assuming the original complaint was timely \n\nfiled. Id. at *9. U.S. Bank appealed. \n\n DISCUSSION \n\n We review a district court’s grant of summary judgment de novo, mindful \n\nthat summary judgment is appropriate only “if the movant shows that there is no \n\ngenuine dispute as to any material fact and the movant is entitled to judgment as \n\na matter of law.” Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. \n\nCiv. P. 56(a)). We also review de novo a district court’s grant of a motion to dismiss, \n\nincluding its interpretation and application of statutes of limitations and \n\ncontractual terms. Deutsche Bank, 810 F.3d at 865. When we sit in diversity \n\njurisdiction and must decide a question of New York state law, we are bound “by \n\nthe law of New York as interpreted by the New York Court of Appeals.” Licci ex \n\nrel. Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (per curiam). \n\n In ACE, 25 N.Y.3d at 596, the New York Court of Appeals held that a cause \n\nof action for breach of R & Ws that guarantee particular facts as of a certain date, \n \n \n \n 14 \n \n \n\fbut do not guarantee future performance, accrues on the date those R & Ws \n\nbecome effective. We were called upon to apply ACE in Deutsche Bank. Deutsche \n\nBank involved facts similar to the case now before us: a trustee, Deutsche Bank, \n\nsought to recover from Quicken Loans, which originated a pool of mortgage loans \n\nthat Deutsche Bank later discovered breached R & Ws made in the mortgage‐loan \n\nagreements. 810 F.3d at 863. The issue was whether the trustee’s cause of action \n\nfor breach of the R & Ws accrued when the R & Ws became effective (making the \n\nclaims untimely) or when the trustee demanded repurchase or cure and was \n\nrebuffed (making the claims timely). Looking to ACE, we held that the trustee’s \n\ncause of action accrued “[i]mmediately upon effectiveness of the R & Ws,” because \n\nat that point, “the Trustee was entitled to demand the contractual remedy—cure \n\nor repurchase—as to any material breach.” Id. at 866. We also rejected the trustee’s \n\nargument that the remedy clause was substantive (meaning a condition precedent \n\nto a party’s performance) rather than procedural (seeking a remedy for a \n\npreexisting wrong). Id. at 867. Because we deemed the demand process to be \n\n“merely procedural,” we held that it did not “delay accrual of the cause of action,” \n\nmaking the trustee’s claims untimely. Id. (citing ACE, 25 N.Y.3d at 597). \n \n \n \n 15 \n \n \n\f U.S. Bank argues that, notwithstanding Deutsche Bank, ACE, and the \n\nnumerous cases that followed,12 its causes of action for breach of contract accrued \n\nnot when the R & Ws became effective, but when GreenPoint was made aware of \n\nthe breaches and failed to cure. According to U.S. Bank, this case is distinguishable \n\nfrom Deutsche Bank and ACE because here, sophisticated parties negotiated for a \n\ncontract provision establishing that a cause of action for a breach of the R & Ws \n\n“shall accrue,” J.A. 166, 269, only when the Trustee made a demand for \n\ncompliance. U.S. Bank made no such demand until 2012. \n\n While this appeal was pending, the New York Court of Appeals granted \n\nreview in a similar case, Deutsche Bank Nat’l Tr. Co. v. Flagstar Capital Mkts. Corp., \n\n32 N.Y.3d 139 (2018). U.S. Bank pinned its hopes on Flagstar and urged us to await \n\nthe New York high court’s decision. Flagstar, U.S. Bank argued, would \n\n“definitively determine the validity of an express accrual clause under New York \n\n\n See, e.g., U.S. Bank Nat’l Ass’n v. Dexia Real Estate Capital Mkts., 643 Fed. App’x 48 (2d \n12\n\nCir. 2016) (summary order); Wells Fargo Bank, NA v. JPMorgan Chase Bank, N.A., 643 Fed. \nApp’x 44 (2d Cir. 2016) (summary order); Homeward Residential, Inc. v. Sand Canyon Corp., \n12 Civ. 7319, 2018 WL 557913 (S.D.N.Y. Jan. 24, 2018); U.S. Bank Nat’l Ass’n v. Bank of Am., \nN.A., 15 Civ. 8153, 2016 WL 5118298 (S.D.N.Y. Sept. 20, 2016), appeal docketed, 16‐3560 (2d \nCir. 2016); Bank of N.Y. Mellon v. WMC Mortg., LLC, 151 A.D.3d 72 (1st Dep’t 2017); U.S. \nBank Nat’l Ass’n v. GreenPoint Mortg. Funding, Inc., 147 A.D.3d 79 (1st Dep’t 2016). \n \n \n \n 16 \n \n \n\flaw.” Appellant Br. 19. Flagstar did just that, but U.S. Bank’s prediction of \n\nvindication proved wrong. Under Flagstar, an express accrual clause cannot \n\noperate to delay the commencement of a limitations period under New York law, \n\nregardless of the parties’ sophistication or clearly expressed intentions. See \n\nFlagstar, 32 N.Y.3d at 139. In other words, Flagstar clarified the sole issue that U.S. \n\nBank asked us to resolve: namely, whether sophisticated parties could create a \n\nsubstantive condition precedent by including an express accrual clause that would \n\ndelay the running of the statute of limitations. See id. The New York Court of \n\nAppeals answered that question in the negative. The rules from ACE and Deutsche \n\nBank therefore govern U.S. Bank’s contractual claims here. \n\n I. Causes of Action One and Two: Breach of Contract \n\n The statute of limitations on a breach of contract claim in New York is six \n\nyears, and this period begins to run when a breach occurs. See N.Y. C.P.L.R. \n\n§§ 203(a), 213(2); Deutsche Bank, 810 F.3d at 865 (citing Ely‐Cruikshank Co. v. Bank of \n\nMontreal, 81 N.Y.2d 399, 402 (1993)). As we explained in Deutsche Bank on facts \n\nindistinguishable from those now before us, “the statute of limitations began to \n\n\n\n \n \n \n 17 \n \n \n\frun on the date the R & Ws became effective and were either true or false at that \n\ntime.” 810 F.3d at 867. \n\n The undisputed facts are that the effective dates of the R & Ws were May 15, \n\n2006 (GP2); June 15, 2006 (GP3);13 and July 17, 2006 (GP4). The FHFA filed in state \n\ncourt on May 30, 2012 (GP2); June 29, 2012 (GP3); and July 30, 2012 (GP4). As the \n\ndistrict court correctly concluded, “[e]ach of these actions was filed over six years \n\nafter the statute of limitations on the breach of contract actions began running.” \n\nLehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, 2017 WL 1293773, at *7. \n\nThe first two causes of action were therefore untimely under settled New York \n\nlaw. The district court properly granted summary judgment to GreenPoint. \n\nII. Cause of Action Three: Indemnification Under Section 9 of the MLPAs \n\n When an aggrieved party recovers not from a wrongdoer but from a third \n\nparty, the third party’s subsequent claim against the wrongdoer becomes one for \n\n\n\n The district court’s reasoned opinion includes a scrivener’s error in its recitation of the \n13\n\neffective dates of the R & Ws. See Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \n2017 WL 1293773, at *7 (indicating that the last sale date for the GP3 Trust was “June 15, \n2008”). It is clear, however, from the rest of the opinion, the complaint, the parties’ \nsubmissions to the district court, and the parties’ papers on appeal that the final date of \nsale for loans in the GP3 Trust was June 15, 2006. \n \n \n \n 18 \n \n \n\findemnification. See Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 200 (2d Cir. \n\n2003) (applying New York law) (quoting Hooper Assocs., Ltd. v. AGS Computs., Inc., \n\n74 N.Y.2d 487, 492–93 (1989)); see also Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 690 \n\n(1990) (indemnification arises when “a party held legally liable to plaintiff shifts \n\nthe entire loss to another”). \n\n Thus, under New York law, absent “unmistakably clear” language in an \n\nindemnification provision that demonstrates that the parties intended the clause \n\nto cover first‐party claims, an agreement between two parties “to indemnify” each \n\nother does not mean that one party’s failure to perform gives rise to a claim for \n\nindemnification. Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, \n\n21 (2d Cir. 1996); see also BNP Paribas Mortg. Corp. v. Bank of Am., N.A., 778 F. Supp. \n\n2d 375, 415 (S.D.N.Y. 2011) (“Unless the indemnification clause refers exclusively \n\nor unequivocally to claims between the indemnitor and indemnitee, the court \n\nmust find the agreement to be lacking evidence of the required intent to cover such \n\nclaims.” (internal quotation marks omitted)). Consequently, absent such language, \n\n“[w]here parties agree to ‘indemnify’ each other for losses incurred by a breach of \n\ncontract, where those lo[s]ses do not relate to liability to a third party, the \n \n \n \n 19 \n \n \n\fcharacterization of ‘indemnification’ is no more than an epithet for recovery for \n\nbreach of contract.” Xerox State & Local Sols., Inc. v. Xchanging Sols. (USA), Inc., 216 \n\nF. Supp. 3d 355, 364 (S.D.N.Y. 2016). Put simply, “[a]n action does not become \n\n[one] for indemnity merely because the pleader has so denominated it.” Peoples’ \n\nDemocratic Rep. of Yemen v. Goodpasture, Inc., 782 F.2d 346, 350 (2d Cir. 1986) \n\n(quoting Bunker v. Bunker, 80 A.D.2d 817, 817 (1st Dep’t 1981)) (internal quotation \n\nmarks omitted). \n\n Here, the distinction between a claim for breach of contract and one for \n\nindemnification is relevant in determining the timeliness of U.S. Bank’s third \n\nclaim. Under New York law, a cause of action for contractual indemnification \n\n“does not arise until liability is incurred by way of actual payment” to a third \n\nparty. Varo, Inc. v. Alvis PLC, 261 A.D.2d 262, 265 (1st Dep’t 1999) (internal \n\nquotation marks omitted); see also McDermott v. City of New York, 50 N.Y.2d 211, \n\n216 (1980). Therefore, if U.S. Bank is correct that it has a cause of action for \n\nindemnification, the third claim in the SACC was timely. If, however, U.S. Bank’s \n\nindemnification claim is merely a reformulation of its breach‐of‐contract claims, \n\n\n\n \n \n \n 20 \n \n \n\fthe third cause of action was untimely for the same reasons as the first two causes \n\nof action. \n\n According to U.S. Bank, GreenPoint should pay for breaching the promises \n\nit made in the MLPAs concerning the quality of the mortgages it sold. This claim, \n\nU.S. Bank insists, is not the same as its breach of contract claims because “the \n\nparties here bargained for two separate remedies contained in two separate \n\nsections of the MLPAs.” Appellant Br. 28. U.S. Bank contends the third claim is \n\n“independent” because the indemnification provisions found in Section 9 of the \n\nMLPAs allow it to “pursue any and all remedies otherwise available at law or in \n\nequity, including, but not limited to, the right to seek damages,” J.A. 168, 270, in \n\naddition to the repurchase provision found in Section 8. As counsel explained at \n\noral argument, U.S. Bank is seeking “damages that relate to the \n\nmisrepresentations, so that unlike the initial claim[s], there’s an additional element \n\nof proof that has to be established.” Oral Arg. at 2:10–3:30. \n\n Had U.S. Bank paid a certificate holder for harms to the certificate holder \n\nstemming from GreenPoint’s breach, its claim against Greenpoint would be for \n\nindemnity. But the claim here seeks payment to U.S. Bank arising from \n \n \n \n 21 \n \n \n\fGreenPoint’s violations of the R & Ws that it made to U.S. Bank as Trustee. It is a \n\nbreach of contract claim, plain and simple. \n\n We reach this conclusion for two reasons. First, Section 9 of the MLPAs does \n\nnot “unequivocally” or in “unmistakably clear” language extend to first‐party \n\nclaims. See J.A. at 167–68, 270 (“[GreenPoint] agrees to indemnify [U.S. Bank] and \n\nhold it harmless from and against any and all claims, losses, damages, penalties, \n\nfines, forfeitures, legal fees and related costs, judgments, and any other costs, fees \n\nand expenses that [U.S. Bank] may sustain . . . [and GreenPoint] shall immediately \n\nnotify [U.S. Bank] if a claim is made by a third party with respect to this Agreement \n\nor the Mortgage Loans.”). In the absence of such language, the provision must be \n\nread to contemplate an actual indemnification scenario, in which U.S. Bank would \n\nbe entitled to repayment if it paid out costs to a third party. U.S. Bank does not \n\nallege that to date it has paid on claims to third parties directly tied to GreenPoint’s \n\nbreaches of its R & Ws. \n\n Second, the allegations in the SACC belie the argument that U.S. Bank is \n\nseeking to recover something different under its indemnification claim than what \n\nit seeks under the breach of contract claims. See J.A. at 1148–50, ¶ 99 (“To date, the \n \n \n \n 22 \n \n \n\fTrusts have sustained approximately $1.1 billion in aggregate collateral‐level \n\nlosses and damages as a result of GreenPoint’s breaches of its R & Ws and failure to \n\nrepurchase breaching Mortgage Loans.” (emphasis added)). The argument that \n\nSection 9 provides an “independent” remedy is, therefore, meritless: the \n\nindemnification claim cannot be “independent” if its success directly depends on \n\nthe breaches of the R & Ws in the MLPAs outlined in the contract claims. As the \n\nNew York Court of Appeals explained in ACE, even if two sections of the contract \n\nprovide alternative remedies for the same breach, “the underlying act the Trust \n\ncomplains of is the same: the quality of the loans and their conformity with the \n\n[R & Ws].” 25 N.Y.3d at 596. \n\n Thus, U.S. Bank’s “indemnification” claim is in reality a repackaged version \n\nof its breach of contract claims. See Goodpasture, 782 F.2d at 350. There is no \n\n“indemnified” party who covered a loss that should have been paid by a third‐\n\nparty obligor. There is thus no “independent” claim for indemnification. U.S. Bank \n\ncannot circumvent the statute of limitations by recasting its contract claim as one \n\n\n\n\n \n \n \n 23 \n \n \n\ffor indemnification. The district court properly dismissed the third claim as \n\nuntimely.14 \n\nIII. Cause of Action Four: Breach of the Indemnification Agreements \n\n In its fourth claim, raised for the first time in the SACC filed on March 3, \n\n2016, U.S. Bank alleges breaches of the Indemnification Agreements. These three \n\nagreements (separate and distinct from the indemnification clauses in the MLPAs) \n\nare documents the parties signed immediately before they closed on the MLPAs. \n\nIn them, GreenPoint independently represented that it had complied with the \n\nR & Ws it made in the MLPAs. All three agreements contain the same statement: \n\n“GreenPoint hereby represents and warrants, as of the date of the Prospectus \n\nSupplement, that the GreenPoint Information is true and correct in all material \n\n\n\n\n GreenPoint also argues that this claim should be dismissed under Federal Rule of Civil \n14\n\nProcedure 12(b)(1) because the FHFA did not have standing to file the summonses with \nnotice in the first instance. U.S. Bank may not, GreenPoint argues, be substituted as the \nreal party in interest under Federal Rule of Civil Procedure 17(a) because there was no \n“honest mistake” in the initial naming of the plaintiff. In a letter brief it submitted to this \nCourt pursuant to Federal Rule of Appellate Procedure 28(j), U.S. Bank directs our \nattention to a recent opinion from this Court holding that “a plaintiff’s honest mistake is \nnot a precondition for granting a Rule 17(a)(3) motion.” Klein ex rel. Qlik Techs., Inc. v. Qlik \nTechs., Inc., 906 F.3d 215, 227 (2d Cir. 2018). Because we agree with the district court that \nU.S. Bank’s claim was untimely on a different basis, we decline to address this argument. \n \n \n \n 24 \n \n \n\frespects and includes all ‘Seller Information’ as defined in the [MLPAs].” J.A. 1063 \n\n(GP2), 1072 (GP3), 1081 (GP4). \n\n According to U.S. Bank, under Federal Rule of Civil Procedure 15(c), its \n\nclaim for breach of the Indemnification Agreements relates back to the filing dates \n\nof the state court summonses with notice, therefore rendering the claim timely, at \n\nleast as to the GP2 and GP4 Trusts.15 We disagree. \n\n Rule 15(c) provides that an amendment to a pleading “relates back to the \n\ndate of the original pleading” where, as relevant here, “the amendment asserts a \n\nclaim or defense that arose out of the conduct, transaction, or occurrence set out—\n\nor attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). \n\n\n\n\n15 The FHFA filed its summons with notice for the GP2 Trust on May 30, 2012, exactly six \nyears after May 30, 2006, the date that the GP2 Indemnification Agreement was executed. \nTherefore, if U.S. Bank’s claim were to relate back to this date, it would be timely. \nSimilarly, the GP4 Indemnification Agreement was executed on July 28, 2006, and six \nyears from that date was July 28, 2012, a Saturday. The time to file therefore fell on “the \nnext succeeding business day”—Monday, July 30, 2012. See N.Y. Gen. Constr. § 25‐a(1); \nFed. R. Civ. P. 6(a)(1). This is precisely the day that the FHFA filed its summons with \nnotice, and, consequently, if U.S. Bank’s claim were to relate back to this date, it would \nbe timely as well. U.S. Bank’s claim as to the GP3 Trust, however, is untimely even under \nits “relation‐back” theory, because the GP3 Indemnification Agreement was executed on \nJune 28, 2006, and the FHFA filed its summons with notice on June 29, 2012, one day after \nthe statute of limitations had run. \n \n \n \n 25 \n \n \n\fThe purpose of Rule 15(c)’s relation‐back provision is “to balance the interests of \n\nthe defendant protected by the statute of limitations with the preference expressed \n\nin the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for \n\nresolving disputes on their merits.” Krupski v. Costa Crociere S. p. A., 560 U.S. 538, \n\n550 (2010). “[T]he central inquiry is whether adequate notice of the matters raised \n\nin the amended pleading has been given to the opposing party within the statute \n\nof limitations by the general fact situation alleged in the original pleading.” Slayton \n\nv. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (internal quotation marks \n\nomitted). \n\n Thus, “even where an amended complaint tracks the legal theory of the first \n\ncomplaint, claims that are based on an entirely distinct set of factual allegations \n\nwill not relate back.” Id. (internal quotation marks omitted). This includes claims \n\nthat are based on different contracts.16 \n\n\n\n See, e.g., 6A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure \n16\n\n§ 1497 (3d ed. 2018) (“[A]mendments alleging . . . the breach of an independent \ncontract . . . may be subject to the defense of statute of limitations because of a failure to \nmeet the transaction standard.”); see also Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d \n992, 994 (8th Cir. 1989); In re Rationis Enters., Inc. of Panama, 45 F. Supp. 2d 365, 367 \n(S.D.N.Y. 1999). \n \n \n \n 26 \n \n \n\f The SACC’s allegations of breaches of the GP2 and GP4 Indemnification \n\nAgreements do not relate back to the filing date of the FHFA’s original pleading \n\nin New York Supreme Court. The original summonses with notice involved \n\nactions for breach of contract and declaratory relief (GP2) and breach of contract, \n\ndeclaratory relief, specific performance, and indemnification (GP3 and GP4) under \n\nthe provisions of the MLPAs. J.A. 23 (GP2), 38 (GP3), 53 (GP4). The focus of the \n\nsummonses was GreenPoint’s contractual obligation “to cure or repurchase from \n\nthe Trust[s] those mortgage loans where R & Ws have been breached.” Id. 24, 39, \n\n54. The summonses, in other words, contained no mention of the Indemnification \n\nAgreements, and sought recovery only for breaches of the R & Ws in the MLPAs, \n\nwhich governed the initial sale of the mortgage loans from GreenPoint to Lehman. \n\nAlthough the underlying R & Ws in the MLPAs and the Indemnification \n\nAgreements employ the same terms, we cannot conclude that GreenPoint was on \n\nnotice when the FHFA filed the original complaint that the litigation would also \n\ninvolve the Indemnification Agreements. Indeed, the FHFA had no reason to \n\ninclude any claims related to the Indemnification Agreements, in which it had no \n\ninterest and to which it was never a signatory. Those documents were intended to \n \n \n \n 27 \n \n \n\foutline the scope of GreenPoint’s obligation to indemnify Lehman and its \n\nsuccessors for claims brought against Lehman by third parties—not to protect \n\ncertificate holders (like the FHFA) from the sale of unsound securitized mortgage \n\nloans. \n\n Simply put, the original complaint and the SACC invoke separate contracts; \n\nthe signatories to the Indemnification Agreements and the MLPAs are different; \n\nand the nature of the claims and the remedies they seek are not the same. See \n\nASARCO LLC v. Goodwin, 756 F.3d 191, 202–03 (2d Cir. 2014); 6A Charles Alan \n\nWright & Arthur R. Miller, Federal Practice & Procedure § 1497 (3d ed. 2018) \n\n(collecting cases); see also Lehman XS Tr., 12 Civ. 7935, 12 Civ. 7942, & 12 Civ. 7943, \n\n2017 WL 1293773, at *9 (“[I]t cannot be said that based on the facts alleged in the \n\noriginal pleading, GreenPoint was given adequate notice that Plaintiff would \n\nbring claims pursuant to the Indemnification Agreements.”). The fourth cause of \n\naction does not relate back to the original filing for claims based on any of the \n\nTrusts, and that cause of action was therefore untimely asserted. \n\n\n\n\n \n \n \n 28 \n \n \n\f CONCLUSION \n\n The district court properly dismissed U.S. Bank’s claims as untimely. For the \n\nforegoing reasons, the judgment of the district court granting GreenPoint’s \n\nmotions for summary judgment and to dismiss is AFFIRMED.\n\n\n\n\n \n \n \n 29\n[END_CASE]",
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4,588,716 | UNITED STATES of America, Appellee, v. Oluwole OJUDUN, Defendant-Appellant. | United States v. Ojudun | 2019-02-08 | Docket 17-2348-cr; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Katzmann, Kearse, Meyer", "parties": "", "opinions": [{"author": "KEARSE, Circuit Judge:", "type": "010combined", "text": "17-2348-cr\n USA v. Ojudun\n\n\n\n 1 UNITED STATES COURT OF APPEALS\n\n 2 FOR THE SECOND CIRCUIT\n\n 3 ------\n\n 4 August Term, 2018\n\n 5 (Submitted: October 24, 2018 Decided: February 8, 2019)\n\n 6 Docket No. 17-2348-cr\n\n 7 _________________________________________________________\n\n 8 UNITED STATES OF AMERICA,\n\n 9 Appellee,\n\n10 - v. -\n\n11 OLUWOLE OJUDUN,\n\n12 Defendant-Appellant.*\n13 _________________________________________________________\n\n14 Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge**.\n\n\n\n\n * The Clerk of Court is directed to amend the official caption to conform with the\n above.\n\n ** Judge Jeffrey A. Meyer, of the United States District Court for the District of\n Connecticut, sitting by designation.\n\f 1 Appeal from a judgment of the United States District Court for the\n\n 2 Southern District of New York, Katherine B. Forrest, then-Judge, revoking defendant\n\n 3 Ojudun's supervised release--imposed following his prior federal conviction for\n\n 4 conspiracy to commit bank fraud--on the grounds that while on such release he, inter\n\n 5 alia, committed two financial crimes in violation of New Jersey law and associated\n\n 6 with a known felon and thereby violated the conditions of release, and ordering him\n\n 7 to serve 30 months' imprisonment, to be followed by two years of supervised release.\n\n 8 On appeal, Ojudun contends principally that the court erred (1) in denying his motion\n\n 9 to suppress, on Fourth Amendment grounds, evidence resulting from New Jersey\n\n10 police officers' stop of the vehicle in which he was a passenger, and (2) in admitting,\n\n11 over his hearsay objection, evidence of postarrest statements made by the vehicle's\n\n12 driver as statements against the interest of the driver. We find no merit in Ojudun's\n\n13 Fourth Amendment challenges to the stop and search of the vehicle. However, we\n\n14 conclude that evidence of statements by the driver that incriminated Ojudun without\n\n15 incriminating the driver did not fall within the hearsay exception provided by Rule\n\n16 804(b)(3) of the Federal Rules of Evidence for statements against the interest of the\n\n17 declarant, and that the court did not perform the analyses required under Rule\n\n18 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure,\n\n\n 2\n\f 1 in order to determine the admissibility of the declarant's other statements. We thus\n\n 2 vacate the judgment and remand for further proceedings.\n\n 3 Vacated and remanded.\n\n 4 GEOFFREY S. BERMAN, United States Attorney for the\n 5 Southern District of New York, New York, New York\n 6 (Daniel S. Noble, Anna M. Skotko, Assistant United\n 7 States Attorneys, New York, New York, of counsel),\n 8 for Appellee.\n\n 9 BENNO & ASSOCIATES, New York, New York (Ameer\n10 Benno, New York, New York, of counsel; Adam D.\n11 Perlmutter, Perlmutter & McGuinness, New York,\n12 New York, of counsel on the initial brief), for\n13 Defendant-Appellant.\n\n\n\n\n14 KEARSE, Circuit Judge:\n\n15 Defendant Oluwole Ojudun appeals from a judgment of the United\n\n16 States District Court for the Southern District of New York, Katherine B. Forrest,\n\n17 then-Judge, revoking his supervised release--imposed following his prior conviction\n\n18 for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349--on\n\n19 the grounds that Ojudun violated standard conditions of release by (1) committing\n\n20 forgery in violation of New Jersey law, (2) committing theft by deception in violation\n\n21 of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without\n\n\n 3\n\f 1 permission, and (4) associating with a known felon. The court ordered Ojudun to\n\n 2 serve 30 months' imprisonment, followed by two years of supervised release, to be\n\n 3 served consecutively to any state sentence that may be imposed. On appeal, Ojudun\n\n 4 challenges his convictions on charges (1), (2), and (4), contending principally that the\n\n 5 court erred (a) in denying his motion to suppress, on Fourth Amendment grounds,\n\n 6 evidence resulting from the New Jersey police officers' stop of the vehicle in which\n\n 7 he was a passenger, and (b) in admitting, over his motion to preclude as hearsay,\n\n 8 evidence of postarrest statements made about Ojudun by the vehicle's driver. For the\n\n 9 reasons that follow, we reject Ojudun's challenges to the officers' stop of the vehicle\n\n10 and the ensuing seizure of evidence. However, we conclude that statements of the\n\n11 driver that incriminated Ojudun without incriminating the driver were not properly,\n\n12 under Rule 804(b)(3) of the Federal Rules of Evidence, ruled statements against the\n\n13 interest of the driver, and that the district court did not perform the analyses required\n\n14 under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\n\n15 Procedure, in order to determine the admissibility of the declarant's other statements.\n\n16 We thus vacate the judgment and remand for further proceedings.\n\n\n\n\n 4\n\f 1 I. BACKGROUND\n\n\n\n\n 2 The present proceeding against Ojudun alleging his violations of\n\n 3 supervised release (\"VOSR\") arises from the January 12, 2017 stop by local police\n\n 4 officers in Summit, New Jersey, of a car (the \"Car\") driven by Anthony Gray, in which\n\n 5 Ojudun was a passenger. Ojudun moved to suppress any evidence resulting from the\n\n 6 stop, contending that the stop, the ensuing search of the Car, and his arrest, violated\n\n 7 the Fourth Amendment. As part of Ojudun's VOSR hearing, which was held in April\n\n 8 and June 2017, the stop and its aftermath were described principally in a suppression\n\n 9 hearing at which the only witness was Detective Christopher Medina of the Summit\n\n10 Police Department (\"SPD\"), who had participated in the stop, the search, and the\n\n11 subsequent arrests of Ojudun, Gray, and Jerry Cesaro, the Car's other passenger (see\n\n12 Part I.B. below). Medina also described his postarrest interview of Gray. That\n\n13 testimony and a videotape of the interview were introduced over Ojudun's hearsay\n\n14 objection (see Part I.C. below).\n\n15 Following the hearing, the district court, inter alia, found the testimony\n\n16 of Medina to be credible and found that his observations of the Car and Cesaro\n\n17 provided reasonable suspicion sufficient to justify the stop of the Car. Ojudun has not\n\n\n 5\n\f 1 argued that any of the court's factual findings in this regard are clearly erroneous;\n\n 2 rather, he challenges its conclusions of law as to the constitutionality of the stop of the\n\n 3 Car and the ensuing search and seizures. He also challenges the court's ruling that\n\n 4 Gray's hearsay statements were admissible under Fed. R. Evid. Rule 804(b)(3), the\n\n 5 exception for statements that are contrary to the declarant's punitive interest.\n\n\n\n\n 6 A. Ojudun's Prior Conviction\n\n 7 Relevant events leading to Ojudun's prior conviction are not disputed\n\n 8 and/or are matters of record. In 2011, the United States Postal Inspection Service\n\n 9 began investigating a bank fraud scheme that involved deposits of counterfeit checks\n\n10 at banks located in New York, New Jersey, and Connecticut. Some scheme\n\n11 participants would open bank accounts using their own identities and would provide\n\n12 their account information and personal identification numbers to other participants,\n\n13 who would then deposit counterfeit checks into the accounts. Thereafter, participants\n\n14 would obtain money from the accounts by withdrawing cash at Automated Teller\n\n15 Machines (\"ATMs\"), or using debit cards at retail locations, or purchasing money\n\n16 orders at United States Post Offices.\n\n\n\n\n 6\n\f 1 Ojudun and Gray were among the participants in the scheme. Ojudun\n\n 2 deposited counterfeit checks and withdrew cash from ATMs and local bank branches,\n\n 3 and he recruited others to do so. Gray supplied scheme participants with counterfeit\n\n 4 checks and drove them to various banks in order to cash them.\n\n 5 In 2012, Gray, following his plea of guilty, was convicted of bank fraud.\n\n 6 He was sentenced principally to time served, plus three years of supervised release.\n\n 7 In 2014, Ojudun was convicted, following his plea of guilty, of conspiracy to commit\n\n 8 bank fraud. He was sentenced to 40 months' imprisonment, to be followed by three\n\n 9 years of supervised release. Ojudun's three-year supervised-release term began upon\n\n10 his release from prison in May 2016.\n\n\n\n\n11 B. SPD's January 2017 Stop of the Car and Arrest of Ojudun\n\n12 Medina's testimony at the suppression hearing included the following.\n\n\n\n\n13 1. The Stop\n\n14 Around noon on January 12, 2017, Medina and SPD Detective Sergeant\n\n15 Mike Treiber (the \"Officers\") were driving in the center of Summit, a town in which\n\n16 the vast majority of the cars were registered in New Jersey, when they noticed the\n\n\n 7\n\f 1 Car, a black BMW with New York license plates, drive about 100 feet past a Chase\n\n 2 Bank branch and double park. (See Hearing Transcript, April 19, 2017 (\"April Tr.\"),\n\n 3 at 20-24.) A \"disheveled looking\" white male--later identified as Cesaro--whose gaunt\n\n 4 face, dirty clothing, and general appearance were, in Medina's experience, \"consistent\n\n 5 with somebody who uses drugs\" (id. at 24), exited the Car, \"meander[ed]\" toward the\n\n 6 bank, walking diagonally in the street rather than crossing and using the sidewalk\n\n 7 (Hearing Transcript, June 16, 2017 (\"June Tr.\"), at 44; see id. at 50-51), and entered the\n\n 8 rear door to the bank (see April Tr. 29). The Car drove off; the Officers, whose\n\n 9 suspicions were aroused as to the possibility of bank fraud or narcotics trafficking,\n\n10 promptly parked in the first parking spot in the bank's parking lot--one of several\n\n11 available spaces--and watched the bank's rear entrance. They saw Cesaro exit the\n\n12 bank, and at about the same time saw the Car reappear and again drive about 100 feet\n\n13 past the bank, and stop. Cesaro, again walking diagonally in the street rather than\n\n14 crossing to use the sidewalk, entered the Car, which drove off after remaining\n\n15 stationary for some 30-60 seconds. (See id. at 28-31; June Tr. 55-58.)\n\n16 The Officers followed for a time, then signaled the Car to pull over and\n\n17 stop.\n\n\n\n\n 8\n\f 1 2. The Questioning, the Search, and the Arrests\n\n 2 After the Car stopped, Medina went to the passenger side, identified\n\n 3 himself as an SPD detective, and asked the driver--Gray--for credentials. Gray\n\n 4 produced a registration, an insurance card, and his driver's license, but as he was\n\n 5 rummaging for the documents, Medina asked how the men had wound up in\n\n 6 Summit; Gray responded that they had taken a wrong exit and had gotten lost trying\n\n 7 to go to the mall in nearby Short Hills, New Jersey. (See April Tr. 36; June Tr. 78.)\n\n 8 Medina then asked how they all knew each other; Gray said the front seat passenger--\n\n 9 who was Ojudun--was his friend and that the back seat passenger was his \"uncle.\"\n\n10 (April Tr. 36.) But when Medina asked what Gray's uncle's name was, Gray just said\n\n11 \"What?\" which Medina's training and experience caused him to view as a stalling\n\n12 tactic--a view enhanced by Cesaro's appearance and his odd path to and from the\n\n13 bank, as well as by the driver's failure to avail himself of any of the empty spaces in\n\n14 the bank's parking lot or to stop in front of the bank to drop Cesaro off or pick him\n\n15 up, instead of twice proceeding 100 feet past the bank. Upon Gray's apparently\n\n16 evasive response, Medina told Cesaro to get out of the Car.\n\n17 Medina took Cesaro to the rear of the Car and attempted to have him\n\n18 place his hands on the rear of the Car. Cesaro instead resisted, kept one hand in his\n\n\n 9\n\f 1 pocket, and elbowed Medina in the ribs. Medina grabbed Cesaro and threw him to\n\n 2 the ground. While subduing Cesaro, Medina saw the Car's brake lights flare and,\n\n 3 fearing that the Car was about to either flee or back over him, yelled a warning to\n\n 4 Treiber. Treiber pulled his pistol and pointed it toward Gray, telling him to turn off\n\n 5 the engine, and summoned backup police officers.\n\n 6 When more officers arrived a few minutes later, Treiber holstered his\n\n 7 gun, and Gray and Ojudun were taken out of the Car. Cesaro was placed under\n\n 8 arrest for assaulting Medina and was searched incident to that arrest. (See June\n\n 9 Tr. 17.) In Cesaro's pockets, Medina found, inter alia, the remnants of a crack pipe that\n\n10 had broken when Cesaro was taken to the ground; a credit card in the name of one\n\n11 Frank Langendorf (see id. at 26); a New York State prison inmate identification card\n\n12 bearing Cesaro's name and picture (see April Tr. 40-41); and a Pennsylvania driver's\n\n13 license in Langendorf's name but bearing a picture of Cesaro (see id. at 41). One of the\n\n14 backup SPD officers took a cell-phone photograph of Cesaro and went into the bank\n\n15 with it to determine what Cesaro had done there.\n\n16 Meanwhile, Medina asked Gray, as the Car's driver, whether he would\n\n17 consent to a search of the Car. Neither Gray nor Ojudun had been arrested at this\n\n18 point. (See June Tr. 17.) Gray gave his consent.\n\n\n 10\n\f 1 When, in a normal speaking voice, Medina asked Gray for consent to\n\n 2 search the Car, Ojudun--seated on the curb at the rear of the car--was no more than\n\n 3 five feet away; and at no point did Ojudun reveal that the Car belonged to his\n\n 4 girlfriend, or state that Gray was not authorized to drive it or to consent to its search,\n\n 5 or say that Ojudun himself objected to the search. After Gray gave his consent,\n\n 6 Medina, at the rear of the car to search the trunk, told Gray that he could have the\n\n 7 search halted at any time if he chose. Ojudun, still seated on the curb at the rear of\n\n 8 the Car, said nothing. (See June Tr. 18-19.) No one present suggested that Gray\n\n 9 lacked authority to consent to a search. (See id. at 19; April Tr. 44-46.)\n\n10 In searching the Car, officers immediately found, on the seat that had\n\n11 been occupied by Ojudun, an envelope containing two checks made payable to Frank\n\n12 Langendorf. (See June Tr. 18.) In the meantime, the officer who had taken Cesaro's\n\n13 picture to show to bank employees learned that Cesaro had cashed a $2,845.46 check\n\n14 that was payable to Frank Langendorf and had displayed a Pennsylvania driver's\n\n15 license in that name. (See id. at 19-21.) Based on the discovery of the two Langendorf\n\n16 checks on Ojudun's seat and the information provided by the bank as to the\n\n17 Langendorf check just cashed by Cesaro, the officers then \"placed everybody under\n\n18 arrest.\" (Id. at 24-25.)\n\n\n 11\n\f 1 When Ojudun was searched incident to his arrest, the officers found that\n\n 2 he had cash in two pockets. In one, he had $233 in worn bills that looked to have\n\n 3 been in circulation for some time. (See id. at 25-26.) In the other, he had fresh bills\n\n 4 totaling exactly $2,845. (See id. at 25.)\n\n 5 In the continuing search of the Car, officers found in the center console\n\n 6 an envelope containing pedigree information for Langendorf. They also found a\n\n 7 paper that contained \"what looked to be practicing of signatures of Mr. [F]rank\n\n 8 Langendorf which matched the endorsed portion of the check cashed by Mr. Cesaro.\"\n\n 9 (June Tr. 26). SPD officers contacted the police department in nearby Millburn, New\n\n10 Jersey, where Langendorf resided, and learned that he had several times complained\n\n11 of identity theft. Millburn police arrived at the scene of the arrests in Summit and\n\n12 confirmed that the occupants of the Car possessed information belonging to the real\n\n13 Frank Langendorf.\n\n\n\n\n14 C. Gray's Postarrest Statements Incriminating Ojudun\n\n15 At SPD headquarters, Medina conducted an interview of Gray, which\n\n16 was videotaped. As described in greater detail in Part II.B. below, after initially\n\n17 denying all knowledge of a fraud scheme, Gray eventually admitted that he had been\n\n\n 12\n\f 1 promised $100 by Cesaro to drive Ojudun and Cesaro to the bank in order to cash a\n\n 2 check. Gray said he saw Ojudun give the check to Cesaro to take into the bank.\n\n 3 Although Gray had waived his Miranda rights for the interview, it was\n\n 4 established at the VOSR hearing that he would be unavailable to testify because of his\n\n 5 assertion of his Fifth Amendment privilege against self-incrimination. (See June\n\n 6 Tr. 4-5.) Ojudun moved to exclude any evidence as to Gray's statements as hearsay.\n\n\n\n\n 7 D. The District Court's Rulings\n\n 8 1. On the Challenge to the Stop\n\n 9 At the close of the June hearing, the district court denied Ojudun's\n\n10 motion to suppress evidence seized as a result of the stop of the Car. It found\n\n11 Medina's testimony to be \"very credible\" and concluded, based on the totality of the\n\n12 circumstances, that the \"accumulation of facts\" resulting from the Officers'\n\n13 observations of, inter alia, the unusual movements of the Car and of Cesaro--described\n\n14 in Part I.B.1. above--provided a \"very solid basis\" for reasonable suspicion to support\n\n15 the initial stop of the Car. (June Tr. 108). The court stated that its conclusion was \"not\n\n16 based upon one fact but based upon an accumulation of facts . . . in their totality . . . .\"\n\n17 (Id. at 108-09.)\n\n\n 13\n\f 1 2. On the Challenge to the Search for Lack of Consent\n\n 2 Just prior to the start of the suppression hearing, Ojudun filed a\n\n 3 declaration challenging the government's position that there had been a valid consent\n\n 4 to search the Car. Ojudun presented evidence that the Car belonged to his girlfriend,\n\n 5 stated that he had not consented to the search, and offered to call his girlfriend to\n\n 6 testify that she had not authorized Gray to drive her car or to consent to its search.\n\n 7 The government conceded with respect to ownership and the fact that the owner and\n\n 8 Ojudun did not give consent. (See April Tr. 13.) The district court noted that the\n\n 9 question remained whether Gray had apparent authority to consent to a search and\n\n10 whether it was reasonable for the Officers to believe he had authority.\n\n11 After the suppression hearing, the court found \"no information to\n\n12 suggest that Gray was not in control of the vehicle and didn't have apparent authority\n\n13 over [it].\" (June Tr. at 110.) Even though Gray was not the Car's owner, the court\n\n14 found that he had apparent authority and control over it, as he was driving it when\n\n15 it was first seen stopping at the bank, when it had rounded the block and returned to\n\n16 the bank, and when it was driven away after picking up Cesaro. Although Medina\n\n17 could have learned by examining the Car's registration that it belonged to someone\n\n18 other than Gray, the court concluded that that information would not have dispelled\n\n\n 14\n\f 1 the appearance that Gray was authorized to drive and exercise control over the Car.\n\n 2 Gray gave Medina the requested documents (see, e.g., Ojudun brief on appeal at 22\n\n 3 (the Car's registration \"w[as] immediately handed over\")) without providing any\n\n 4 indication that he did not have permission or authority to use or exercise dominion\n\n 5 over the Car. And when requested, he promptly gave his consent to the search,\n\n 6 giving no indication that he lacked authority to do so.\n\n 7 Ojudun himself during the events of January 12 made no mention of the\n\n 8 fact that the Car was owned by his girlfriend; he did not in any way indicate that\n\n 9 Gray lacked permission to drive the Car, or to exercise full authority over it, or to\n\n10 consent to its search. The district court found that Ojudun \"was in sufficient\n\n11 proximity\" to hear, inter alia, both Medina's request that Gray consent to a search and\n\n12 Medina's ensuing statements to Gray that, even having given his consent, Gray could\n\n13 have the search terminated at any time; the court found that \"there was no[]\n\n14 suggestion by . . . Ojudun or anyone that Mr. Gray did not have authority to consent\n\n15 to search . . . .\" (June Tr. 113.) The court concluded that Medina had reasonably relied\n\n16 on Gray's apparent authority to consent to the vehicle search. (See id. at 110-13; June\n\n17 23, 2017 Endorsement Order confirming oral ruling.)\n\n\n\n\n 15\n\f 1 3. The Admission of Gray's Postarrest Statements\n\n 2 At the start of the June session of the VOSR hearing, the district court\n\n 3 denied Ojudun's motion to exclude evidence of Gray's interview statements to\n\n 4 Medina. The court ruled that all of Gray's statements were within the Rule 804(b)(3)\n\n 5 exception for statements against the declarant's penal interest. (See Part II.B. below.)\n\n\n\n\n 6 II. DISCUSSION\n\n\n\n\n 7 On appeal, Ojudun contends that the district court erred (A) in denying\n\n 8 his Fourth Amendment motion to suppress on the grounds that the Officers lacked\n\n 9 reasonable suspicion to stop the Car and that Gray lacked authority to consent to the\n\n10 search, and (B) in concluding that Gray's hearsay statements incriminating Ojudun\n\n11 were admissible under Rule 804(b)(3) as statements against Gray's interest. We reject\n\n12 Ojudun's Fourth Amendment contentions but find merit in his Rule 804(b)(3)\n\n13 challenge.\n\n\n\n\n14 A. The Fourth Amendment Challenges to the Stop and the Search\n\n15 Ojudun's contentions that the district court erred in rejecting his Fourth\n\n\n 16\n\f 1 Amendment challenges to the stop and search of the Car do not require extended\n\n 2 discussion. In considering challenges to the denial of a suppression motion, we\n\n 3 review the district court's factual findings for clear error and its conclusions of law de\n\n 4 novo. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.), cert. denied, 135\n\n 5 S. Ct. 301 (2014). Ojudun has not argued that any of the court's factual findings\n\n 6 described in Part I.D. above are clearly erroneous; and we see no error of law.\n\n 7 It is well established that, consistent with the Fourth Amendment, a\n\n 8 \"government law enforcement agent may subject an individual to an investigative\n\n 9 stop upon a reasonable suspicion that the individual is, has been, or is about to be\n\n10 engaged in criminal activity. . . . The agent is said to have a reasonable suspicion\n\n11 when he is in possession of 'specific and articulable facts which, taken together with\n\n12 rational inferences from those facts, reasonably warrant [the] intrusion.'\" United States\n\n13 v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968));\n\n14 see generally United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975) (the\n\n15 interception of a moving vehicle, causing it to stop for questioning, is not so intrusive\n\n16 that probable cause is required, so long as it is supported by specific articulable facts\n\n17 that, together with rational inferences from those facts, reasonably warrant suspicion\n\n18 that the vehicle contains persons who are engaging in or are about to engage in\n\n\n 17\n\f 1 unlawful activity). The \"touchstone of the Fourth Amendment is reasonableness.\"\n\n 2 Florida v. Jimeno, 500 U.S. 248, 250 (1991). \"Reasonableness, in turn, is measured in\n\n 3 objective terms by examining the totality of the circumstances.\" Ohio v. Robinette, 519\n\n 4 U.S. 33, 39 (1996).\n\n 5 As described in Part I.D.1. above, the district court applied these\n\n 6 principles in evaluating the Officers' assessment of their observations of the unusual\n\n 7 conduct described in Part I.B. above. We see no error in the court's conclusion that\n\n 8 the stop of the Car was supported by reasonable suspicion, and we affirm the denial\n\n 9 of Ojudun's challenge to the stop substantially for the reasons stated by the district\n\n10 court.\n\n11 Although Ojudun makes an additional argument that the record does not\n\n12 support a finding that the Officers had reason to stop the Car for a violation of local\n\n13 traffic laws, we need not address that argument, as the district court sufficiently\n\n14 rested its decision on the ground described above.\n\n15 It is also well established that the Fourth Amendment does not forbid a\n\n16 warrantless search of private property pursuant to consent, voluntarily given, by the\n\n17 owner of the property, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), or\n\n18 by \"another person who has authority to consent by reason of that person's 'common\n\n\n 18\n\f 1 authority over or other sufficient relationship to the premises,'\" United States v. McGee,\n\n 2 564 F.3d 136, 138 (2d Cir. 2009) (\"McGee\") (quoting United States v. Matlock, 415 U.S.\n\n 3 164, 171 (1974)), or by a person who in fact lacked authority to consent but who\n\n 4 \"reasonably appeared to the police to possess authority to consent to the search,\"\n\n 5 McGee, 564 F.3d at 139. The requirement imposed by the Fourth Amendment's\n\n 6 touchstone of reasonableness \"is not that the[ officers] always be correct, but that they\n\n 7 always be reasonable.\" Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Thus, where\n\n 8 the person who gave consent did not have actual authority, the question is \"whether\n\n 9 the officers reasonably believed that [he] had the authority to consent.\" Id. at 189.\n\n10 In challenging the district court's conclusion that Gray had apparent\n\n11 authority to consent to the search of the Car and that it was reasonable for the Officers\n\n12 to believe that he had authority, Ojudun argues that \"no reasonable officer in\n\n13 Medina's position would have assumed that Gray had . . . authority\" to consent to a\n\n14 search (Ojudun brief on appeal at 22); but he points to no evidence other than the fact\n\n15 that the Car's registration was in a name other than that of Gray. While Ojudun states\n\n16 that \"Gray had only temporary access to the vehicle, . . . could not regularly access the\n\n17 vehicle, . . . and did not have permission to drive the vehicle\" (id.), not one of those\n\n18 limitations was observable by the Officers, and, as the district court found (see Part\n\n\n 19\n\f 1 I.D.2. above), none was hinted at by Ojudun on January 12. Gray was the only person\n\n 2 the Officers observed driving the Car; when asked for license and registration, Gray\n\n 3 \"immediately handed [them] over\" (Ojudun brief on appeal at 22); and although\n\n 4 Gray's consent to search the car was requested and discussed within earshot of at\n\n 5 least Ojudun, none of the occupants of the car suggested in any manner that Gray, the\n\n 6 driver, lacked authority to consent to a search. We conclude that the district court did\n\n 7 not err in ruling that it was reasonable for the Officers to believe that Gray had such\n\n 8 authority.\n\n\n\n\n 9 B. The Challenge to the Admission of Gray's Postarrest Statements\n\n10 Gray's postarrest interview by Medina was some 27 minutes long. At the\n\n11 beginning, Gray claimed that he had come to New Jersey simply to visit an outlet at\n\n12 the Short Hills mall that sold new or lightly used sneakers. For approximately the\n\n13 first half of the interview, Gray denied his involvement in any fraudulent scheme and\n\n14 persisted in proclaiming that single benign purpose. However, as Medina testified,\n\n15 Gray eventually conceded \"that he knew that they were leaving the Bronx to come to\n\n16 that bank and that they were going to cash the check\" (June Tr. 32).\n\n\n\n\n 20\n\f 1 1. Gray's Videotaped Statement\n\n 2 The videotape reveals that Gray said he became the driver for the\n\n 3 January 12 trip because he was a professional driver and preferred driving to being\n\n 4 driven. And although he said he had never heard of Ojudun or Cesaro engaging in\n\n 5 fraudulent banking activity before, Gray eventually admitted that he had known from\n\n 6 the start of the trip that Ojudun's and Cesaro's intentions were to cash a check at the\n\n 7 bank in Summit. (Gray also said near the start of the interview that he had never\n\n 8 been involved previously in any activity of this sort; but toward the end he admitted\n\n 9 that he had previously been \"arrested\" for this kind of conduct. See generally Part I.A.\n\n10 above.) Gray said that Ojudun had called him on the morning of January 12 to make\n\n11 plans to drive to New Jersey, that Ojudun already had possession of Ojudun's\n\n12 girlfriend's car, and that Cesaro promised to pay Gray $100 to drive.\n\n13 Gray said he knew when he got into the Car that the plan was to go to\n\n14 Summit to cash a check. He said, however, that he had no conversation with Ojudun\n\n15 or Cesaro as to the banking aspects of the trip; that he did not participate in selecting\n\n16 the bank at which the check would be cashed and did not know why the bank in\n\n17 question had been chosen; that he did not know the source of the checks or how\n\n18 many such checks were in the Car; that he did not know the provenance of Cesaro's\n\n\n 21\n\f 1 identification; that he did not know how much money Cesaro or Ojudun respectively\n\n 2 would receive from the check; and that he did not see, or know that, Cesaro gave\n\n 3 Ojudun money from the cashed check.\n\n 4 Gray said that when he stopped the Car to let Cesaro get out to go to the\n\n 5 bank, he saw Ojudun give Cesaro a check. Gray said he did not know exactly what\n\n 6 Cesaro was going to do in the bank once Gray dropped him off, although he knew the\n\n 7 general plan was to cash a check. Gray said he was not paying close attention to the\n\n 8 scheme because his principal purpose in driving to Summit was to look at sneakers\n\n 9 at the mall. He said he only knew they were to go to the mall after the check was\n\n10 cashed.\n\n\n\n\n11 2. The District Court's Ruling\n\n12 Over Ojudun's objection that the evidence of Gray's statements was\n\n13 hearsay, the district court admitted the videotaped interview, and Medina's\n\n14 description of it, ruling that it fell within Fed. R. Evid. 804(b)(3)'s exception for\n\n15 statements against the declarant's punitive interest. The court reasoned as follows:\n\n16 When somebody is sitting there, while it is true that Mr. Gray\n17 starts off talking to the interviewing officer and pushing back\n18 about any involvement, eventually, he concedes involvement, though\n19 he does, I agree, try to push more involvement off on others than he\n 22\n\f 1 accepts for himself. But he puts himself there and he starts to concede\n 2 some of the relevant facts. That at the very least is a statement\n 3 against interest for a conspiracy claim. So it doesn't have to be\n 4 what is actually charged for it to be a statement against interest\n 5 but he is putting himself in the vicinity and in the circumstances\n 6 where he's driving somebody in this car cause he knows how to\n 7 drive to a location where he understands there's going to be bank fraud.\n 8 So now while he may say, hey, I wasn't the really, the bad doer--\n 9 and I'm summarizing . . . . [t]hat is a statement certainly against\n10 his interest. He could not have thought that that statement was\n11 something that could not result in a potential criminal penalty.\n12 Perhaps a lesser criminal penalty than others might have suffered\n13 or feared but a statement as against interest can be construed at\n14 the level of a violation. But here we are not even talking about\n15 that. We're talking some form of criminal conduct that would be\n16 well above that level.\n\n17 (June Tr. 5-6 (emphases added).)\n\n18 Although a district court's decision to admit evidence is reviewed for\n\n19 abuse of discretion, see, e.g., United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004)\n\n20 (\"Saget\"), cert. denied, 543 U.S. 1079 (2005); United States v. Jones, 299 F.3d 103, 112 (2d\n\n21 Cir. 2002); United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998), the court \"abuses or\n\n22 exceeds the discretion accorded to it when (1) its decision rests on [(a)] an error of law\n\n23 (such as application of the wrong legal principle) or [(b)] a clearly erroneous factual\n\n24 finding, or (2) its decision . . . cannot be located within the range of permissible\n\n25 decisions,\" Jones, 299 F.3d at 112 (internal quotation marks omitted). In light of the\n\n\n\n 23\n\f 1 following legal principles, we have several difficulties with the court's decision in this\n\n 2 case.\n\n\n\n\n 3 3. Statements Against Penal Interest\n\n 4 Rule 804 provides that the hearsay rule does not exclude evidence of a\n\n 5 statement against an unavailable declarant's penal interest if the\n\n 6 statement [is one] that:\n\n 7 (A) a reasonable person in the declarant's position would have\n 8 made only if the person believed it to be true because, when made, it . . .\n 9 had so great a tendency . . . to expose the declarant to . . . criminal\n10 liability; and\n\n11 (B) is supported by corroborating circumstances that clearly\n12 indicate its trustworthiness, if it is offered in a criminal case as one that\n13 tends to expose the declarant to criminal liability.\n\n14 Fed. R. Evid. 804(b)(3). The threshold questions are whether the offered \"statement\"\n\n15 of the declarant would be perceived by \"a reasonable person in the declarant's shoes\"\n\n16 to be \"detrimental to his or her own penal interest,\" Saget, 377 F.3d at 231.\n\n17 First, although the word \"statement\" might be read broadly to refer to a\n\n18 declarant's \"entire confession,\" Williamson v. United States, 512 U.S. 594, 599 (1994), it\n\n19 must instead, in light of the principles underlying the Rule, be construed to refer to,\n\n20 and to require assessment of, each assertion individually, see id. at 600-01.\n 24\n\f 1 Rule 804(b)(3) is founded on the commonsense notion that reasonable\n 2 people, even reasonable people who are not especially honest, tend not to\n 3 make self-inculpatory statements unless they believe them to be true.\n 4 This notion simply does not extend to the broader definition of\n 5 \"statement.\" The fact that a person is making a broadly self-inculpatory\n 6 confession does not make more credible the confession's non-self-\n 7 inculpatory parts. One of the most effective ways to lie is to mix\n 8 falsehood with truth . . . .\n\n 9 Id. at 559-600 (emphases added). Thus,\n\n10 [t]he district court may not just assume for purposes of Rule 804(b)(3)\n11 that a statement is self-inculpatory because it is part of a fuller\n12 confession, and this is especially true when the statement implicates\n13 someone else. \"[T]he arrest statements of a codefendant have\n14 traditionally been viewed with special suspicion. Due to his strong\n15 motivation to implicate the defendant and to exonerate himself, a\n16 codefendant's statements about what the defendant said or did are less\n17 credible than ordinary hearsay evidence.\"\n\n18 Williamson, 512 U.S. at 601 (quoting Lee v. Illinois, 476 U.S. 530, 541 (1986) (emphases\n\n19 ours)).\n\n20 Second, as to any particular statement, \"[t]he question under Rule\n\n21 804(b)(3) is always,\" in light of all surrounding circumstances, \"whether the statement\n\n22 was sufficiently against the declarant's penal interest that a reasonable person in the\n\n23 declarant's position would not have made the statement unless believing it to be true.\"\n\n24 Id. at 603-04 (internal quotation marks omitted) (emphasis added). Thus, while some\n\n25 parts of a declarant's statement may be clearly self-incriminatory, \"other parts, . . .\n\n 25\n\f 1 especially the parts that implicated [the defendant, and] did little to subject [the\n\n 2 declarant] himself to criminal liability,\" are not within the scope of Rule 804(b)(3)(A).\n\n 3 Id. at 604; see id. (\"A reasonable person in [the declarant's] position might even think\n\n 4 that implicating someone else would decrease his practical exposure to criminal\n\n 5 liability, at least so far as sentencing goes. Small fish in a big conspiracy often get\n\n 6 shorter sentences than people who are running the whole show, . . . especially if the\n\n 7 small fish are willing to help the authorities catch the big ones.\"). Accordingly, the\n\n 8 court must \"inquire[] whether each of the statements in [the declarant's] confession\n\n 9 was truly self-inculpatory.\" Id. (emphases added). A particular statement by the\n\n10 declarant is not within \"the penal interest exception\" if it incriminated the defendant\n\n11 \"exclusively.\" United States v. Wexler, 522 F.3d 194, 202-03 (2d Cir. 2008).\n\n12 In light of these principles, we have several difficulties with the district\n\n13 court's treatment of the Gray interview. First, the court did not focus on each of his\n\n14 statements individually to determine which of them would reasonably have been\n\n15 viewed as so exposing him to criminal liability as to fall within Rule 804(b)(3)(A).\n\n16 Rather, as shown above, the court commented generally on Gray's statement as a\n\n17 whole. To be sure, several of his statements were plainly contrary to his own penal\n\n18 interest. He admitted--eventually--that he knew when he got into the Car at the start\n\n\n 26\n\f 1 of the trip that the plan was to go to the bank in Summit to cash a check, and he\n\n 2 admitted that he was going to be paid $100 by Cesaro to drive Ojudun and Cesaro\n\n 3 there. These statements were contrary to Gray's punitive interest, as the district court\n\n 4 correctly noted that admitting to \"driving somebody in this car . . . to a location where\n\n 5 he understands there's going to be bank fraud\" (June Tr. 5 (emphasis added))\n\n 6 provided evidence that could lead to Gray's conviction for conspiracy to commit\n\n 7 financial fraud. The fact that these statements also tended to implicate Ojudun, who\n\n 8 had procured the Car, and Cesaro, who had cashed the check, did not lessen their\n\n 9 detriment to Gray's interest because his statement was evidence of his foreknowledge\n\n10 of and assistance in the commission of the crime. But these statements were but a\n\n11 small part of Gray's overall interview.\n\n12 Second, the court did not at all address the Gray statement that was most\n\n13 damaging to Ojudun, Cesaro having been the person who promised Gray $100 and\n\n14 physically cashed the counterfeit check. Gray said that when he stopped the Car to\n\n15 let Cesaro out to go to the bank, Ojudun gave Cesaro the check. This was a statement\n\n16 that tied Ojudun squarely to the execution of the fraud, without in any way further\n\n17 implicating Gray. We cannot say that this statement fell within the scope of Rule\n\n18 804(b)(3)(A).\n\n\n 27\n\f 1 Third, even where the court has properly found that a particular\n\n 2 statement is against the declarant's own penal interest within the meaning of Rule\n\n 3 804(b)(3)(A), the court must then determine whether there are \"corroborating\n\n 4 circumstances that clearly indicate,\" Fed. R. Evid. 804(b)(3)(B), \"both the declarant's\n\n 5 trustworthiness and the truth of the statement,\" United States v. Lumpkin, 192 F.3d 280,\n\n 6 287 (2d Cir. 1999). For those conditions to be satisfied, \"the inference of\n\n 7 trustworthiness from the proffered 'corroborating circumstances' must be strong, not\n\n 8 merely allowable.\" United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484\n\n 9 U.S. 966 (1987).\n\n10 Here, most of Gray's statements, made to a law enforcement official,\n\n11 were designed to minimize his involvement in the planned fraud and to deflect\n\n12 responsibility onto Ojudun and Cesaro. Even after he abandoned his initial claim of\n\n13 total innocence, he claimed, as detailed in Part II.B.1. above, total ignorance about,\n\n14 inter alia, bank selection, the presence of counterfeit checks in the Car, cash in the Car,\n\n15 provenance of fraudulent identifications, division of proceeds, and the source of the\n\n16 checks. The thrust of Gray's statements, once Medina persuaded him that it would\n\n17 be in his interest to abandon his claim of innocence, was that he knew Ojudun and\n\n18 Cesaro planned to cash a check. The record does not indicate that the district court\n\n\n 28\n\f 1 made any inquiry as to whether there were corroborating circumstances to indicate\n\n 2 clearly that such of Gray's statements as fell within Rule 804(b)(3)(A) were\n\n 3 trustworthy to the extent that they were made to a law enforcement official and\n\n 4 sought to deflect responsibility onto Ojudun.\n\n 5 In sum, we conclude that the district court, in holding Gray's entire set\n\n 6 of statements to be within the scope of Rule 804(b)(3), erred in failing to make a\n\n 7 particularized assessment of the various individual assertions, in failing to determine\n\n 8 whether the relevant assertions were sufficiently corroborated as required by Rule\n\n 9 804(b)(3)(B), and in failing to recognize that the Gray statement that was most\n\n10 damaging to Ojudun was not within Rule 804(b)(3) because it did not implicate Gray\n\n11 at all.\n\n12 Although the government contends that any error with respect to the\n\n13 admission of Gray's post-arrest statement was harmless, we disagree. The district\n\n14 court stated that \"[t]he post arrest statement of Mr. Gray indicates that Mr. Gray knew\n\n15 that the check would be given from Mr. Ojudun to Mr. Cesaro and that Mr. Cesaro\n\n16 then we know as a matter of fact exited the vehicle, went into the bank and passed the\n\n17 check.\" (June Tr. 114.) In view of the district court's reliance on a portion of Gray's\n\n\n\n 29\n\f 1 statement that was not against his penal interest, the error under Rule 804(b)(3) was\n\n 2 not harmless.\n\n 3 Accordingly, we vacate the judgment and remand for the court to\n\n 4 conduct the required particularized analyses. The court should determine which of\n\n 5 Gray's statements could properly be admitted under Rule 804(b)(3), and in light of the\n\n 6 admissible evidence, determine whether the VOSR charges against Ojudun have been\n\n 7 established by a preponderance of the evidence.\n\n\n\n\n 8 4. Rule 32.1 of the Federal Rules of Criminal Procedure\n\n 9 Finally, we note that, as to such of Gray's statements as are not within the\n\n10 scope of Evidence Rule 804(b)(3), the court may consider whether they may properly\n\n11 be admitted instead pursuant to Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\n\n12 Procedure. While the Sixth Amendment right of confrontation that is applicable in\n\n13 a criminal trial does not apply in a proceeding for probation revocation, parole\n\n14 revocation, or revocation of supervised release because such a proceeding \"is not a\n\n15 stage of a criminal prosecution,\" United States v. Aspinall, 389 F.3d 332, 342 (2d Cir.\n\n16 2004) (\"Aspinall\") (supervised release) (internal quotation marks omitted), abrogated\n\n\n\n 30\n\f 1 on other grounds by United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); see\n\n 2 Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole); Gagnon v. Scarpelli, 411 U.S. 778,\n\n 3 782 (1973) (probation), the accused in such a revocation proceeding enjoys certain\n\n 4 protections under principles of due process, such as \"the right to confront and cross-\n\n 5 examine adverse witnesses (unless the hearing officer specifically finds good cause\n\n 6 for not allowing confrontation),\" Morrissey, 408 U.S. at 489.\n\n 7 This more limited right of confrontation is embodied in the Criminal\n\n 8 Rules provision that the defendant in a revocation hearing \"is entitled to . . . an\n\n 9 opportunity to . . . question any adverse witness unless the court determines that the\n\n10 interest of justice does not require the witness to appear.\" Fed. R. Crim. P.\n\n11 32.1(b)(2)(C). The balancing analysis envisioned by this Rule \"need not be made\n\n12 where the proffered out-of-court statement is admissible under an established\n\n13 exception to the hearsay rule.\" Aspinall, 389 F.3d at 344; see, e.g., Jones, 299 F.3d at 113.\n\n14 But for statements that would be inadmissible as hearsay under the Federal Rules of\n\n15 Evidence, determinations as to good cause and the interests of justice \"require[] the\n\n16 court to balance the defendant's interest in confronting the declarant against . . . the\n\n17 government's reasons for not producing the witness and the reliability of the\n\n\n\n 31\n\f1 proffered hearsay.\" United States v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (internal\n\n2 quotation marks omitted), cert. denied, 568 U.S. 1092 (2013).\n\n\n\n\n3 CONCLUSION\n\n4 We have considered all of parties' arguments in support of their\n\n5 respective positions on this appeal and, except to the extent indicated above, have\n\n6 found them to be without merit. The judgment is vacated, and the matter is\n\n7 remanded for proceedings consistent with the foregoing.\n\n\n\n\n 32", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4365969/", "author_raw": "KEARSE, Circuit Judge:"}]} | KATZMANN | KEARSE | MEYER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4588716/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Oluwole OJUDUN, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-08\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-2348-cr\n USA v. Ojudun\n\n\n\n 1 UNITED STATES COURT OF APPEALS\n\n 2 FOR THE SECOND CIRCUIT\n\n 3 ------\n\n 4 August Term, 2018\n\n 5 (Submitted: October 24, 2018 Decided: February 8, 2019)\n\n 6 Docket No. 17-2348-cr\n\n 7 _________________________________________________________\n\n 8 UNITED STATES OF AMERICA,\n\n 9 Appellee,\n\n10 - v. -\n\n11 OLUWOLE OJUDUN,\n\n12 Defendant-Appellant.*\n13 _________________________________________________________\n\n14 Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge**.\n\n\n\n\n * The Clerk of Court is directed to amend the official caption to conform with the\n above.\n\n ** Judge Jeffrey A. Meyer, of the United States District Court for the District of\n Connecticut, sitting by designation.\n\f 1 Appeal from a judgment of the United States District Court for the\n\n 2 Southern District of New York, Katherine B. Forrest, then-Judge, revoking defendant\n\n 3 Ojudun's supervised release--imposed following his prior federal conviction for\n\n 4 conspiracy to commit bank fraud--on the grounds that while on such release he, inter\n\n 5 alia, committed two financial crimes in violation of New Jersey law and associated\n\n 6 with a known felon and thereby violated the conditions of release, and ordering him\n\n 7 to serve 30 months' imprisonment, to be followed by two years of supervised release.\n\n 8 On appeal, Ojudun contends principally that the court erred (1) in denying his motion\n\n 9 to suppress, on Fourth Amendment grounds, evidence resulting from New Jersey\n\n10 police officers' stop of the vehicle in which he was a passenger, and (2) in admitting,\n\n11 over his hearsay objection, evidence of postarrest statements made by the vehicle's\n\n12 driver as statements against the interest of the driver. We find no merit in Ojudun's\n\n13 Fourth Amendment challenges to the stop and search of the vehicle. However, we\n\n14 conclude that evidence of statements by the driver that incriminated Ojudun without\n\n15 incriminating the driver did not fall within the hearsay exception provided by Rule\n\n16 804(b)(3) of the Federal Rules of Evidence for statements against the interest of the\n\n17 declarant, and that the court did not perform the analyses required under Rule\n\n18 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure,\n\n\n 2\n\f 1 in order to determine the admissibility of the declarant's other statements. We thus\n\n 2 vacate the judgment and remand for further proceedings.\n\n 3 Vacated and remanded.\n\n 4 GEOFFREY S. BERMAN, United States Attorney for the\n 5 Southern District of New York, New York, New York\n 6 (Daniel S. Noble, Anna M. Skotko, Assistant United\n 7 States Attorneys, New York, New York, of counsel),\n 8 for Appellee.\n\n 9 BENNO & ASSOCIATES, New York, New York (Ameer\n10 Benno, New York, New York, of counsel; Adam D.\n11 Perlmutter, Perlmutter & McGuinness, New York,\n12 New York, of counsel on the initial brief), for\n13 Defendant-Appellant.\n\n\n\n\n14 KEARSE, Circuit Judge:\n\n15 Defendant Oluwole Ojudun appeals from a judgment of the United\n\n16 States District Court for the Southern District of New York, Katherine B. Forrest,\n\n17 then-Judge, revoking his supervised release--imposed following his prior conviction\n\n18 for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349--on\n\n19 the grounds that Ojudun violated standard conditions of release by (1) committing\n\n20 forgery in violation of New Jersey law, (2) committing theft by deception in violation\n\n21 of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without\n\n\n 3\n\f 1 permission, and (4) associating with a known felon. The court ordered Ojudun to\n\n 2 serve 30 months' imprisonment, followed by two years of supervised release, to be\n\n 3 served consecutively to any state sentence that may be imposed. On appeal, Ojudun\n\n 4 challenges his convictions on charges (1), (2), and (4), contending principally that the\n\n 5 court erred (a) in denying his motion to suppress, on Fourth Amendment grounds,\n\n 6 evidence resulting from the New Jersey police officers' stop of the vehicle in which\n\n 7 he was a passenger, and (b) in admitting, over his motion to preclude as hearsay,\n\n 8 evidence of postarrest statements made about Ojudun by the vehicle's driver. For the\n\n 9 reasons that follow, we reject Ojudun's challenges to the officers' stop of the vehicle\n\n10 and the ensuing seizure of evidence. However, we conclude that statements of the\n\n11 driver that incriminated Ojudun without incriminating the driver were not properly,\n\n12 under Rule 804(b)(3) of the Federal Rules of Evidence, ruled statements against the\n\n13 interest of the driver, and that the district court did not perform the analyses required\n\n14 under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\n\n15 Procedure, in order to determine the admissibility of the declarant's other statements.\n\n16 We thus vacate the judgment and remand for further proceedings.\n\n\n\n\n 4\n\f 1 I. BACKGROUND\n\n\n\n\n 2 The present proceeding against Ojudun alleging his violations of\n\n 3 supervised release (\"VOSR\") arises from the January 12, 2017 stop by local police\n\n 4 officers in Summit, New Jersey, of a car (the \"Car\") driven by Anthony Gray, in which\n\n 5 Ojudun was a passenger. Ojudun moved to suppress any evidence resulting from the\n\n 6 stop, contending that the stop, the ensuing search of the Car, and his arrest, violated\n\n 7 the Fourth Amendment. As part of Ojudun's VOSR hearing, which was held in April\n\n 8 and June 2017, the stop and its aftermath were described principally in a suppression\n\n 9 hearing at which the only witness was Detective Christopher Medina of the Summit\n\n10 Police Department (\"SPD\"), who had participated in the stop, the search, and the\n\n11 subsequent arrests of Ojudun, Gray, and Jerry Cesaro, the Car's other passenger (see\n\n12 Part I.B. below). Medina also described his postarrest interview of Gray. That\n\n13 testimony and a videotape of the interview were introduced over Ojudun's hearsay\n\n14 objection (see Part I.C. below).\n\n15 Following the hearing, the district court, inter alia, found the testimony\n\n16 of Medina to be credible and found that his observations of the Car and Cesaro\n\n17 provided reasonable suspicion sufficient to justify the stop of the Car. Ojudun has not\n\n\n 5\n\f 1 argued that any of the court's factual findings in this regard are clearly erroneous;\n\n 2 rather, he challenges its conclusions of law as to the constitutionality of the stop of the\n\n 3 Car and the ensuing search and seizures. He also challenges the court's ruling that\n\n 4 Gray's hearsay statements were admissible under Fed. R. Evid. Rule 804(b)(3), the\n\n 5 exception for statements that are contrary to the declarant's punitive interest.\n\n\n\n\n 6 A. Ojudun's Prior Conviction\n\n 7 Relevant events leading to Ojudun's prior conviction are not disputed\n\n 8 and/or are matters of record. In 2011, the United States Postal Inspection Service\n\n 9 began investigating a bank fraud scheme that involved deposits of counterfeit checks\n\n10 at banks located in New York, New Jersey, and Connecticut. Some scheme\n\n11 participants would open bank accounts using their own identities and would provide\n\n12 their account information and personal identification numbers to other participants,\n\n13 who would then deposit counterfeit checks into the accounts. Thereafter, participants\n\n14 would obtain money from the accounts by withdrawing cash at Automated Teller\n\n15 Machines (\"ATMs\"), or using debit cards at retail locations, or purchasing money\n\n16 orders at United States Post Offices.\n\n\n\n\n 6\n\f 1 Ojudun and Gray were among the participants in the scheme. Ojudun\n\n 2 deposited counterfeit checks and withdrew cash from ATMs and local bank branches,\n\n 3 and he recruited others to do so. Gray supplied scheme participants with counterfeit\n\n 4 checks and drove them to various banks in order to cash them.\n\n 5 In 2012, Gray, following his plea of guilty, was convicted of bank fraud.\n\n 6 He was sentenced principally to time served, plus three years of supervised release.\n\n 7 In 2014, Ojudun was convicted, following his plea of guilty, of conspiracy to commit\n\n 8 bank fraud. He was sentenced to 40 months' imprisonment, to be followed by three\n\n 9 years of supervised release. Ojudun's three-year supervised-release term began upon\n\n10 his release from prison in May 2016.\n\n\n\n\n11 B. SPD's January 2017 Stop of the Car and Arrest of Ojudun\n\n12 Medina's testimony at the suppression hearing included the following.\n\n\n\n\n13 1. The Stop\n\n14 Around noon on January 12, 2017, Medina and SPD Detective Sergeant\n\n15 Mike Treiber (the \"Officers\") were driving in the center of Summit, a town in which\n\n16 the vast majority of the cars were registered in New Jersey, when they noticed the\n\n\n 7\n\f 1 Car, a black BMW with New York license plates, drive about 100 feet past a Chase\n\n 2 Bank branch and double park. (See Hearing Transcript, April 19, 2017 (\"April Tr.\"),\n\n 3 at 20-24.) A \"disheveled looking\" white male--later identified as Cesaro--whose gaunt\n\n 4 face, dirty clothing, and general appearance were, in Medina's experience, \"consistent\n\n 5 with somebody who uses drugs\" (id. at 24), exited the Car, \"meander[ed]\" toward the\n\n 6 bank, walking diagonally in the street rather than crossing and using the sidewalk\n\n 7 (Hearing Transcript, June 16, 2017 (\"June Tr.\"), at 44; see id. at 50-51), and entered the\n\n 8 rear door to the bank (see April Tr. 29). The Car drove off; the Officers, whose\n\n 9 suspicions were aroused as to the possibility of bank fraud or narcotics trafficking,\n\n10 promptly parked in the first parking spot in the bank's parking lot--one of several\n\n11 available spaces--and watched the bank's rear entrance. They saw Cesaro exit the\n\n12 bank, and at about the same time saw the Car reappear and again drive about 100 feet\n\n13 past the bank, and stop. Cesaro, again walking diagonally in the street rather than\n\n14 crossing to use the sidewalk, entered the Car, which drove off after remaining\n\n15 stationary for some 30-60 seconds. (See id. at 28-31; June Tr. 55-58.)\n\n16 The Officers followed for a time, then signaled the Car to pull over and\n\n17 stop.\n\n\n\n\n 8\n\f 1 2. The Questioning, the Search, and the Arrests\n\n 2 After the Car stopped, Medina went to the passenger side, identified\n\n 3 himself as an SPD detective, and asked the driver--Gray--for credentials. Gray\n\n 4 produced a registration, an insurance card, and his driver's license, but as he was\n\n 5 rummaging for the documents, Medina asked how the men had wound up in\n\n 6 Summit; Gray responded that they had taken a wrong exit and had gotten lost trying\n\n 7 to go to the mall in nearby Short Hills, New Jersey. (See April Tr. 36; June Tr. 78.)\n\n 8 Medina then asked how they all knew each other; Gray said the front seat passenger--\n\n 9 who was Ojudun--was his friend and that the back seat passenger was his \"uncle.\"\n\n10 (April Tr. 36.) But when Medina asked what Gray's uncle's name was, Gray just said\n\n11 \"What?\" which Medina's training and experience caused him to view as a stalling\n\n12 tactic--a view enhanced by Cesaro's appearance and his odd path to and from the\n\n13 bank, as well as by the driver's failure to avail himself of any of the empty spaces in\n\n14 the bank's parking lot or to stop in front of the bank to drop Cesaro off or pick him\n\n15 up, instead of twice proceeding 100 feet past the bank. Upon Gray's apparently\n\n16 evasive response, Medina told Cesaro to get out of the Car.\n\n17 Medina took Cesaro to the rear of the Car and attempted to have him\n\n18 place his hands on the rear of the Car. Cesaro instead resisted, kept one hand in his\n\n\n 9\n\f 1 pocket, and elbowed Medina in the ribs. Medina grabbed Cesaro and threw him to\n\n 2 the ground. While subduing Cesaro, Medina saw the Car's brake lights flare and,\n\n 3 fearing that the Car was about to either flee or back over him, yelled a warning to\n\n 4 Treiber. Treiber pulled his pistol and pointed it toward Gray, telling him to turn off\n\n 5 the engine, and summoned backup police officers.\n\n 6 When more officers arrived a few minutes later, Treiber holstered his\n\n 7 gun, and Gray and Ojudun were taken out of the Car. Cesaro was placed under\n\n 8 arrest for assaulting Medina and was searched incident to that arrest. (See June\n\n 9 Tr. 17.) In Cesaro's pockets, Medina found, inter alia, the remnants of a crack pipe that\n\n10 had broken when Cesaro was taken to the ground; a credit card in the name of one\n\n11 Frank Langendorf (see id. at 26); a New York State prison inmate identification card\n\n12 bearing Cesaro's name and picture (see April Tr. 40-41); and a Pennsylvania driver's\n\n13 license in Langendorf's name but bearing a picture of Cesaro (see id. at 41). One of the\n\n14 backup SPD officers took a cell-phone photograph of Cesaro and went into the bank\n\n15 with it to determine what Cesaro had done there.\n\n16 Meanwhile, Medina asked Gray, as the Car's driver, whether he would\n\n17 consent to a search of the Car. Neither Gray nor Ojudun had been arrested at this\n\n18 point. (See June Tr. 17.) Gray gave his consent.\n\n\n 10\n\f 1 When, in a normal speaking voice, Medina asked Gray for consent to\n\n 2 search the Car, Ojudun--seated on the curb at the rear of the car--was no more than\n\n 3 five feet away; and at no point did Ojudun reveal that the Car belonged to his\n\n 4 girlfriend, or state that Gray was not authorized to drive it or to consent to its search,\n\n 5 or say that Ojudun himself objected to the search. After Gray gave his consent,\n\n 6 Medina, at the rear of the car to search the trunk, told Gray that he could have the\n\n 7 search halted at any time if he chose. Ojudun, still seated on the curb at the rear of\n\n 8 the Car, said nothing. (See June Tr. 18-19.) No one present suggested that Gray\n\n 9 lacked authority to consent to a search. (See id. at 19; April Tr. 44-46.)\n\n10 In searching the Car, officers immediately found, on the seat that had\n\n11 been occupied by Ojudun, an envelope containing two checks made payable to Frank\n\n12 Langendorf. (See June Tr. 18.) In the meantime, the officer who had taken Cesaro's\n\n13 picture to show to bank employees learned that Cesaro had cashed a $2,845.46 check\n\n14 that was payable to Frank Langendorf and had displayed a Pennsylvania driver's\n\n15 license in that name. (See id. at 19-21.) Based on the discovery of the two Langendorf\n\n16 checks on Ojudun's seat and the information provided by the bank as to the\n\n17 Langendorf check just cashed by Cesaro, the officers then \"placed everybody under\n\n18 arrest.\" (Id. at 24-25.)\n\n\n 11\n\f 1 When Ojudun was searched incident to his arrest, the officers found that\n\n 2 he had cash in two pockets. In one, he had $233 in worn bills that looked to have\n\n 3 been in circulation for some time. (See id. at 25-26.) In the other, he had fresh bills\n\n 4 totaling exactly $2,845. (See id. at 25.)\n\n 5 In the continuing search of the Car, officers found in the center console\n\n 6 an envelope containing pedigree information for Langendorf. They also found a\n\n 7 paper that contained \"what looked to be practicing of signatures of Mr. [F]rank\n\n 8 Langendorf which matched the endorsed portion of the check cashed by Mr. Cesaro.\"\n\n 9 (June Tr. 26). SPD officers contacted the police department in nearby Millburn, New\n\n10 Jersey, where Langendorf resided, and learned that he had several times complained\n\n11 of identity theft. Millburn police arrived at the scene of the arrests in Summit and\n\n12 confirmed that the occupants of the Car possessed information belonging to the real\n\n13 Frank Langendorf.\n\n\n\n\n14 C. Gray's Postarrest Statements Incriminating Ojudun\n\n15 At SPD headquarters, Medina conducted an interview of Gray, which\n\n16 was videotaped. As described in greater detail in Part II.B. below, after initially\n\n17 denying all knowledge of a fraud scheme, Gray eventually admitted that he had been\n\n\n 12\n\f 1 promised $100 by Cesaro to drive Ojudun and Cesaro to the bank in order to cash a\n\n 2 check. Gray said he saw Ojudun give the check to Cesaro to take into the bank.\n\n 3 Although Gray had waived his Miranda rights for the interview, it was\n\n 4 established at the VOSR hearing that he would be unavailable to testify because of his\n\n 5 assertion of his Fifth Amendment privilege against self-incrimination. (See June\n\n 6 Tr. 4-5.) Ojudun moved to exclude any evidence as to Gray's statements as hearsay.\n\n\n\n\n 7 D. The District Court's Rulings\n\n 8 1. On the Challenge to the Stop\n\n 9 At the close of the June hearing, the district court denied Ojudun's\n\n10 motion to suppress evidence seized as a result of the stop of the Car. It found\n\n11 Medina's testimony to be \"very credible\" and concluded, based on the totality of the\n\n12 circumstances, that the \"accumulation of facts\" resulting from the Officers'\n\n13 observations of, inter alia, the unusual movements of the Car and of Cesaro--described\n\n14 in Part I.B.1. above--provided a \"very solid basis\" for reasonable suspicion to support\n\n15 the initial stop of the Car. (June Tr. 108). The court stated that its conclusion was \"not\n\n16 based upon one fact but based upon an accumulation of facts . . . in their totality . . . .\"\n\n17 (Id. at 108-09.)\n\n\n 13\n\f 1 2. On the Challenge to the Search for Lack of Consent\n\n 2 Just prior to the start of the suppression hearing, Ojudun filed a\n\n 3 declaration challenging the government's position that there had been a valid consent\n\n 4 to search the Car. Ojudun presented evidence that the Car belonged to his girlfriend,\n\n 5 stated that he had not consented to the search, and offered to call his girlfriend to\n\n 6 testify that she had not authorized Gray to drive her car or to consent to its search.\n\n 7 The government conceded with respect to ownership and the fact that the owner and\n\n 8 Ojudun did not give consent. (See April Tr. 13.) The district court noted that the\n\n 9 question remained whether Gray had apparent authority to consent to a search and\n\n10 whether it was reasonable for the Officers to believe he had authority.\n\n11 After the suppression hearing, the court found \"no information to\n\n12 suggest that Gray was not in control of the vehicle and didn't have apparent authority\n\n13 over [it].\" (June Tr. at 110.) Even though Gray was not the Car's owner, the court\n\n14 found that he had apparent authority and control over it, as he was driving it when\n\n15 it was first seen stopping at the bank, when it had rounded the block and returned to\n\n16 the bank, and when it was driven away after picking up Cesaro. Although Medina\n\n17 could have learned by examining the Car's registration that it belonged to someone\n\n18 other than Gray, the court concluded that that information would not have dispelled\n\n\n 14\n\f 1 the appearance that Gray was authorized to drive and exercise control over the Car.\n\n 2 Gray gave Medina the requested documents (see, e.g., Ojudun brief on appeal at 22\n\n 3 (the Car's registration \"w[as] immediately handed over\")) without providing any\n\n 4 indication that he did not have permission or authority to use or exercise dominion\n\n 5 over the Car. And when requested, he promptly gave his consent to the search,\n\n 6 giving no indication that he lacked authority to do so.\n\n 7 Ojudun himself during the events of January 12 made no mention of the\n\n 8 fact that the Car was owned by his girlfriend; he did not in any way indicate that\n\n 9 Gray lacked permission to drive the Car, or to exercise full authority over it, or to\n\n10 consent to its search. The district court found that Ojudun \"was in sufficient\n\n11 proximity\" to hear, inter alia, both Medina's request that Gray consent to a search and\n\n12 Medina's ensuing statements to Gray that, even having given his consent, Gray could\n\n13 have the search terminated at any time; the court found that \"there was no[]\n\n14 suggestion by . . . Ojudun or anyone that Mr. Gray did not have authority to consent\n\n15 to search . . . .\" (June Tr. 113.) The court concluded that Medina had reasonably relied\n\n16 on Gray's apparent authority to consent to the vehicle search. (See id. at 110-13; June\n\n17 23, 2017 Endorsement Order confirming oral ruling.)\n\n\n\n\n 15\n\f 1 3. The Admission of Gray's Postarrest Statements\n\n 2 At the start of the June session of the VOSR hearing, the district court\n\n 3 denied Ojudun's motion to exclude evidence of Gray's interview statements to\n\n 4 Medina. The court ruled that all of Gray's statements were within the Rule 804(b)(3)\n\n 5 exception for statements against the declarant's penal interest. (See Part II.B. below.)\n\n\n\n\n 6 II. DISCUSSION\n\n\n\n\n 7 On appeal, Ojudun contends that the district court erred (A) in denying\n\n 8 his Fourth Amendment motion to suppress on the grounds that the Officers lacked\n\n 9 reasonable suspicion to stop the Car and that Gray lacked authority to consent to the\n\n10 search, and (B) in concluding that Gray's hearsay statements incriminating Ojudun\n\n11 were admissible under Rule 804(b)(3) as statements against Gray's interest. We reject\n\n12 Ojudun's Fourth Amendment contentions but find merit in his Rule 804(b)(3)\n\n13 challenge.\n\n\n\n\n14 A. The Fourth Amendment Challenges to the Stop and the Search\n\n15 Ojudun's contentions that the district court erred in rejecting his Fourth\n\n\n 16\n\f 1 Amendment challenges to the stop and search of the Car do not require extended\n\n 2 discussion. In considering challenges to the denial of a suppression motion, we\n\n 3 review the district court's factual findings for clear error and its conclusions of law de\n\n 4 novo. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.), cert. denied, 135\n\n 5 S. Ct. 301 (2014). Ojudun has not argued that any of the court's factual findings\n\n 6 described in Part I.D. above are clearly erroneous; and we see no error of law.\n\n 7 It is well established that, consistent with the Fourth Amendment, a\n\n 8 \"government law enforcement agent may subject an individual to an investigative\n\n 9 stop upon a reasonable suspicion that the individual is, has been, or is about to be\n\n10 engaged in criminal activity. . . . The agent is said to have a reasonable suspicion\n\n11 when he is in possession of 'specific and articulable facts which, taken together with\n\n12 rational inferences from those facts, reasonably warrant [the] intrusion.'\" United States\n\n13 v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968));\n\n14 see generally United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975) (the\n\n15 interception of a moving vehicle, causing it to stop for questioning, is not so intrusive\n\n16 that probable cause is required, so long as it is supported by specific articulable facts\n\n17 that, together with rational inferences from those facts, reasonably warrant suspicion\n\n18 that the vehicle contains persons who are engaging in or are about to engage in\n\n\n 17\n\f 1 unlawful activity). The \"touchstone of the Fourth Amendment is reasonableness.\"\n\n 2 Florida v. Jimeno, 500 U.S. 248, 250 (1991). \"Reasonableness, in turn, is measured in\n\n 3 objective terms by examining the totality of the circumstances.\" Ohio v. Robinette, 519\n\n 4 U.S. 33, 39 (1996).\n\n 5 As described in Part I.D.1. above, the district court applied these\n\n 6 principles in evaluating the Officers' assessment of their observations of the unusual\n\n 7 conduct described in Part I.B. above. We see no error in the court's conclusion that\n\n 8 the stop of the Car was supported by reasonable suspicion, and we affirm the denial\n\n 9 of Ojudun's challenge to the stop substantially for the reasons stated by the district\n\n10 court.\n\n11 Although Ojudun makes an additional argument that the record does not\n\n12 support a finding that the Officers had reason to stop the Car for a violation of local\n\n13 traffic laws, we need not address that argument, as the district court sufficiently\n\n14 rested its decision on the ground described above.\n\n15 It is also well established that the Fourth Amendment does not forbid a\n\n16 warrantless search of private property pursuant to consent, voluntarily given, by the\n\n17 owner of the property, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), or\n\n18 by \"another person who has authority to consent by reason of that person's 'common\n\n\n 18\n\f 1 authority over or other sufficient relationship to the premises,'\" United States v. McGee,\n\n 2 564 F.3d 136, 138 (2d Cir. 2009) (\"McGee\") (quoting United States v. Matlock, 415 U.S.\n\n 3 164, 171 (1974)), or by a person who in fact lacked authority to consent but who\n\n 4 \"reasonably appeared to the police to possess authority to consent to the search,\"\n\n 5 McGee, 564 F.3d at 139. The requirement imposed by the Fourth Amendment's\n\n 6 touchstone of reasonableness \"is not that the[ officers] always be correct, but that they\n\n 7 always be reasonable.\" Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Thus, where\n\n 8 the person who gave consent did not have actual authority, the question is \"whether\n\n 9 the officers reasonably believed that [he] had the authority to consent.\" Id. at 189.\n\n10 In challenging the district court's conclusion that Gray had apparent\n\n11 authority to consent to the search of the Car and that it was reasonable for the Officers\n\n12 to believe that he had authority, Ojudun argues that \"no reasonable officer in\n\n13 Medina's position would have assumed that Gray had . . . authority\" to consent to a\n\n14 search (Ojudun brief on appeal at 22); but he points to no evidence other than the fact\n\n15 that the Car's registration was in a name other than that of Gray. While Ojudun states\n\n16 that \"Gray had only temporary access to the vehicle, . . . could not regularly access the\n\n17 vehicle, . . . and did not have permission to drive the vehicle\" (id.), not one of those\n\n18 limitations was observable by the Officers, and, as the district court found (see Part\n\n\n 19\n\f 1 I.D.2. above), none was hinted at by Ojudun on January 12. Gray was the only person\n\n 2 the Officers observed driving the Car; when asked for license and registration, Gray\n\n 3 \"immediately handed [them] over\" (Ojudun brief on appeal at 22); and although\n\n 4 Gray's consent to search the car was requested and discussed within earshot of at\n\n 5 least Ojudun, none of the occupants of the car suggested in any manner that Gray, the\n\n 6 driver, lacked authority to consent to a search. We conclude that the district court did\n\n 7 not err in ruling that it was reasonable for the Officers to believe that Gray had such\n\n 8 authority.\n\n\n\n\n 9 B. The Challenge to the Admission of Gray's Postarrest Statements\n\n10 Gray's postarrest interview by Medina was some 27 minutes long. At the\n\n11 beginning, Gray claimed that he had come to New Jersey simply to visit an outlet at\n\n12 the Short Hills mall that sold new or lightly used sneakers. For approximately the\n\n13 first half of the interview, Gray denied his involvement in any fraudulent scheme and\n\n14 persisted in proclaiming that single benign purpose. However, as Medina testified,\n\n15 Gray eventually conceded \"that he knew that they were leaving the Bronx to come to\n\n16 that bank and that they were going to cash the check\" (June Tr. 32).\n\n\n\n\n 20\n\f 1 1. Gray's Videotaped Statement\n\n 2 The videotape reveals that Gray said he became the driver for the\n\n 3 January 12 trip because he was a professional driver and preferred driving to being\n\n 4 driven. And although he said he had never heard of Ojudun or Cesaro engaging in\n\n 5 fraudulent banking activity before, Gray eventually admitted that he had known from\n\n 6 the start of the trip that Ojudun's and Cesaro's intentions were to cash a check at the\n\n 7 bank in Summit. (Gray also said near the start of the interview that he had never\n\n 8 been involved previously in any activity of this sort; but toward the end he admitted\n\n 9 that he had previously been \"arrested\" for this kind of conduct. See generally Part I.A.\n\n10 above.) Gray said that Ojudun had called him on the morning of January 12 to make\n\n11 plans to drive to New Jersey, that Ojudun already had possession of Ojudun's\n\n12 girlfriend's car, and that Cesaro promised to pay Gray $100 to drive.\n\n13 Gray said he knew when he got into the Car that the plan was to go to\n\n14 Summit to cash a check. He said, however, that he had no conversation with Ojudun\n\n15 or Cesaro as to the banking aspects of the trip; that he did not participate in selecting\n\n16 the bank at which the check would be cashed and did not know why the bank in\n\n17 question had been chosen; that he did not know the source of the checks or how\n\n18 many such checks were in the Car; that he did not know the provenance of Cesaro's\n\n\n 21\n\f 1 identification; that he did not know how much money Cesaro or Ojudun respectively\n\n 2 would receive from the check; and that he did not see, or know that, Cesaro gave\n\n 3 Ojudun money from the cashed check.\n\n 4 Gray said that when he stopped the Car to let Cesaro get out to go to the\n\n 5 bank, he saw Ojudun give Cesaro a check. Gray said he did not know exactly what\n\n 6 Cesaro was going to do in the bank once Gray dropped him off, although he knew the\n\n 7 general plan was to cash a check. Gray said he was not paying close attention to the\n\n 8 scheme because his principal purpose in driving to Summit was to look at sneakers\n\n 9 at the mall. He said he only knew they were to go to the mall after the check was\n\n10 cashed.\n\n\n\n\n11 2. The District Court's Ruling\n\n12 Over Ojudun's objection that the evidence of Gray's statements was\n\n13 hearsay, the district court admitted the videotaped interview, and Medina's\n\n14 description of it, ruling that it fell within Fed. R. Evid. 804(b)(3)'s exception for\n\n15 statements against the declarant's punitive interest. The court reasoned as follows:\n\n16 When somebody is sitting there, while it is true that Mr. Gray\n17 starts off talking to the interviewing officer and pushing back\n18 about any involvement, eventually, he concedes involvement, though\n19 he does, I agree, try to push more involvement off on others than he\n 22\n\f 1 accepts for himself. But he puts himself there and he starts to concede\n 2 some of the relevant facts. That at the very least is a statement\n 3 against interest for a conspiracy claim. So it doesn't have to be\n 4 what is actually charged for it to be a statement against interest\n 5 but he is putting himself in the vicinity and in the circumstances\n 6 where he's driving somebody in this car cause he knows how to\n 7 drive to a location where he understands there's going to be bank fraud.\n 8 So now while he may say, hey, I wasn't the really, the bad doer--\n 9 and I'm summarizing . . . . [t]hat is a statement certainly against\n10 his interest. He could not have thought that that statement was\n11 something that could not result in a potential criminal penalty.\n12 Perhaps a lesser criminal penalty than others might have suffered\n13 or feared but a statement as against interest can be construed at\n14 the level of a violation. But here we are not even talking about\n15 that. We're talking some form of criminal conduct that would be\n16 well above that level.\n\n17 (June Tr. 5-6 (emphases added).)\n\n18 Although a district court's decision to admit evidence is reviewed for\n\n19 abuse of discretion, see, e.g., United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004)\n\n20 (\"Saget\"), cert. denied, 543 U.S. 1079 (2005); United States v. Jones, 299 F.3d 103, 112 (2d\n\n21 Cir. 2002); United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998), the court \"abuses or\n\n22 exceeds the discretion accorded to it when (1) its decision rests on [(a)] an error of law\n\n23 (such as application of the wrong legal principle) or [(b)] a clearly erroneous factual\n\n24 finding, or (2) its decision . . . cannot be located within the range of permissible\n\n25 decisions,\" Jones, 299 F.3d at 112 (internal quotation marks omitted). In light of the\n\n\n\n 23\n\f 1 following legal principles, we have several difficulties with the court's decision in this\n\n 2 case.\n\n\n\n\n 3 3. Statements Against Penal Interest\n\n 4 Rule 804 provides that the hearsay rule does not exclude evidence of a\n\n 5 statement against an unavailable declarant's penal interest if the\n\n 6 statement [is one] that:\n\n 7 (A) a reasonable person in the declarant's position would have\n 8 made only if the person believed it to be true because, when made, it . . .\n 9 had so great a tendency . . . to expose the declarant to . . . criminal\n10 liability; and\n\n11 (B) is supported by corroborating circumstances that clearly\n12 indicate its trustworthiness, if it is offered in a criminal case as one that\n13 tends to expose the declarant to criminal liability.\n\n14 Fed. R. Evid. 804(b)(3). The threshold questions are whether the offered \"statement\"\n\n15 of the declarant would be perceived by \"a reasonable person in the declarant's shoes\"\n\n16 to be \"detrimental to his or her own penal interest,\" Saget, 377 F.3d at 231.\n\n17 First, although the word \"statement\" might be read broadly to refer to a\n\n18 declarant's \"entire confession,\" Williamson v. United States, 512 U.S. 594, 599 (1994), it\n\n19 must instead, in light of the principles underlying the Rule, be construed to refer to,\n\n20 and to require assessment of, each assertion individually, see id. at 600-01.\n 24\n\f 1 Rule 804(b)(3) is founded on the commonsense notion that reasonable\n 2 people, even reasonable people who are not especially honest, tend not to\n 3 make self-inculpatory statements unless they believe them to be true.\n 4 This notion simply does not extend to the broader definition of\n 5 \"statement.\" The fact that a person is making a broadly self-inculpatory\n 6 confession does not make more credible the confession's non-self-\n 7 inculpatory parts. One of the most effective ways to lie is to mix\n 8 falsehood with truth . . . .\n\n 9 Id. at 559-600 (emphases added). Thus,\n\n10 [t]he district court may not just assume for purposes of Rule 804(b)(3)\n11 that a statement is self-inculpatory because it is part of a fuller\n12 confession, and this is especially true when the statement implicates\n13 someone else. \"[T]he arrest statements of a codefendant have\n14 traditionally been viewed with special suspicion. Due to his strong\n15 motivation to implicate the defendant and to exonerate himself, a\n16 codefendant's statements about what the defendant said or did are less\n17 credible than ordinary hearsay evidence.\"\n\n18 Williamson, 512 U.S. at 601 (quoting Lee v. Illinois, 476 U.S. 530, 541 (1986) (emphases\n\n19 ours)).\n\n20 Second, as to any particular statement, \"[t]he question under Rule\n\n21 804(b)(3) is always,\" in light of all surrounding circumstances, \"whether the statement\n\n22 was sufficiently against the declarant's penal interest that a reasonable person in the\n\n23 declarant's position would not have made the statement unless believing it to be true.\"\n\n24 Id. at 603-04 (internal quotation marks omitted) (emphasis added). Thus, while some\n\n25 parts of a declarant's statement may be clearly self-incriminatory, \"other parts, . . .\n\n 25\n\f 1 especially the parts that implicated [the defendant, and] did little to subject [the\n\n 2 declarant] himself to criminal liability,\" are not within the scope of Rule 804(b)(3)(A).\n\n 3 Id. at 604; see id. (\"A reasonable person in [the declarant's] position might even think\n\n 4 that implicating someone else would decrease his practical exposure to criminal\n\n 5 liability, at least so far as sentencing goes. Small fish in a big conspiracy often get\n\n 6 shorter sentences than people who are running the whole show, . . . especially if the\n\n 7 small fish are willing to help the authorities catch the big ones.\"). Accordingly, the\n\n 8 court must \"inquire[] whether each of the statements in [the declarant's] confession\n\n 9 was truly self-inculpatory.\" Id. (emphases added). A particular statement by the\n\n10 declarant is not within \"the penal interest exception\" if it incriminated the defendant\n\n11 \"exclusively.\" United States v. Wexler, 522 F.3d 194, 202-03 (2d Cir. 2008).\n\n12 In light of these principles, we have several difficulties with the district\n\n13 court's treatment of the Gray interview. First, the court did not focus on each of his\n\n14 statements individually to determine which of them would reasonably have been\n\n15 viewed as so exposing him to criminal liability as to fall within Rule 804(b)(3)(A).\n\n16 Rather, as shown above, the court commented generally on Gray's statement as a\n\n17 whole. To be sure, several of his statements were plainly contrary to his own penal\n\n18 interest. He admitted--eventually--that he knew when he got into the Car at the start\n\n\n 26\n\f 1 of the trip that the plan was to go to the bank in Summit to cash a check, and he\n\n 2 admitted that he was going to be paid $100 by Cesaro to drive Ojudun and Cesaro\n\n 3 there. These statements were contrary to Gray's punitive interest, as the district court\n\n 4 correctly noted that admitting to \"driving somebody in this car . . . to a location where\n\n 5 he understands there's going to be bank fraud\" (June Tr. 5 (emphasis added))\n\n 6 provided evidence that could lead to Gray's conviction for conspiracy to commit\n\n 7 financial fraud. The fact that these statements also tended to implicate Ojudun, who\n\n 8 had procured the Car, and Cesaro, who had cashed the check, did not lessen their\n\n 9 detriment to Gray's interest because his statement was evidence of his foreknowledge\n\n10 of and assistance in the commission of the crime. But these statements were but a\n\n11 small part of Gray's overall interview.\n\n12 Second, the court did not at all address the Gray statement that was most\n\n13 damaging to Ojudun, Cesaro having been the person who promised Gray $100 and\n\n14 physically cashed the counterfeit check. Gray said that when he stopped the Car to\n\n15 let Cesaro out to go to the bank, Ojudun gave Cesaro the check. This was a statement\n\n16 that tied Ojudun squarely to the execution of the fraud, without in any way further\n\n17 implicating Gray. We cannot say that this statement fell within the scope of Rule\n\n18 804(b)(3)(A).\n\n\n 27\n\f 1 Third, even where the court has properly found that a particular\n\n 2 statement is against the declarant's own penal interest within the meaning of Rule\n\n 3 804(b)(3)(A), the court must then determine whether there are \"corroborating\n\n 4 circumstances that clearly indicate,\" Fed. R. Evid. 804(b)(3)(B), \"both the declarant's\n\n 5 trustworthiness and the truth of the statement,\" United States v. Lumpkin, 192 F.3d 280,\n\n 6 287 (2d Cir. 1999). For those conditions to be satisfied, \"the inference of\n\n 7 trustworthiness from the proffered 'corroborating circumstances' must be strong, not\n\n 8 merely allowable.\" United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484\n\n 9 U.S. 966 (1987).\n\n10 Here, most of Gray's statements, made to a law enforcement official,\n\n11 were designed to minimize his involvement in the planned fraud and to deflect\n\n12 responsibility onto Ojudun and Cesaro. Even after he abandoned his initial claim of\n\n13 total innocence, he claimed, as detailed in Part II.B.1. above, total ignorance about,\n\n14 inter alia, bank selection, the presence of counterfeit checks in the Car, cash in the Car,\n\n15 provenance of fraudulent identifications, division of proceeds, and the source of the\n\n16 checks. The thrust of Gray's statements, once Medina persuaded him that it would\n\n17 be in his interest to abandon his claim of innocence, was that he knew Ojudun and\n\n18 Cesaro planned to cash a check. The record does not indicate that the district court\n\n\n 28\n\f 1 made any inquiry as to whether there were corroborating circumstances to indicate\n\n 2 clearly that such of Gray's statements as fell within Rule 804(b)(3)(A) were\n\n 3 trustworthy to the extent that they were made to a law enforcement official and\n\n 4 sought to deflect responsibility onto Ojudun.\n\n 5 In sum, we conclude that the district court, in holding Gray's entire set\n\n 6 of statements to be within the scope of Rule 804(b)(3), erred in failing to make a\n\n 7 particularized assessment of the various individual assertions, in failing to determine\n\n 8 whether the relevant assertions were sufficiently corroborated as required by Rule\n\n 9 804(b)(3)(B), and in failing to recognize that the Gray statement that was most\n\n10 damaging to Ojudun was not within Rule 804(b)(3) because it did not implicate Gray\n\n11 at all.\n\n12 Although the government contends that any error with respect to the\n\n13 admission of Gray's post-arrest statement was harmless, we disagree. The district\n\n14 court stated that \"[t]he post arrest statement of Mr. Gray indicates that Mr. Gray knew\n\n15 that the check would be given from Mr. Ojudun to Mr. Cesaro and that Mr. Cesaro\n\n16 then we know as a matter of fact exited the vehicle, went into the bank and passed the\n\n17 check.\" (June Tr. 114.) In view of the district court's reliance on a portion of Gray's\n\n\n\n 29\n\f 1 statement that was not against his penal interest, the error under Rule 804(b)(3) was\n\n 2 not harmless.\n\n 3 Accordingly, we vacate the judgment and remand for the court to\n\n 4 conduct the required particularized analyses. The court should determine which of\n\n 5 Gray's statements could properly be admitted under Rule 804(b)(3), and in light of the\n\n 6 admissible evidence, determine whether the VOSR charges against Ojudun have been\n\n 7 established by a preponderance of the evidence.\n\n\n\n\n 8 4. Rule 32.1 of the Federal Rules of Criminal Procedure\n\n 9 Finally, we note that, as to such of Gray's statements as are not within the\n\n10 scope of Evidence Rule 804(b)(3), the court may consider whether they may properly\n\n11 be admitted instead pursuant to Rule 32.1(b)(2)(C) of the Federal Rules of Criminal\n\n12 Procedure. While the Sixth Amendment right of confrontation that is applicable in\n\n13 a criminal trial does not apply in a proceeding for probation revocation, parole\n\n14 revocation, or revocation of supervised release because such a proceeding \"is not a\n\n15 stage of a criminal prosecution,\" United States v. Aspinall, 389 F.3d 332, 342 (2d Cir.\n\n16 2004) (\"Aspinall\") (supervised release) (internal quotation marks omitted), abrogated\n\n\n\n 30\n\f 1 on other grounds by United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); see\n\n 2 Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole); Gagnon v. Scarpelli, 411 U.S. 778,\n\n 3 782 (1973) (probation), the accused in such a revocation proceeding enjoys certain\n\n 4 protections under principles of due process, such as \"the right to confront and cross-\n\n 5 examine adverse witnesses (unless the hearing officer specifically finds good cause\n\n 6 for not allowing confrontation),\" Morrissey, 408 U.S. at 489.\n\n 7 This more limited right of confrontation is embodied in the Criminal\n\n 8 Rules provision that the defendant in a revocation hearing \"is entitled to . . . an\n\n 9 opportunity to . . . question any adverse witness unless the court determines that the\n\n10 interest of justice does not require the witness to appear.\" Fed. R. Crim. P.\n\n11 32.1(b)(2)(C). The balancing analysis envisioned by this Rule \"need not be made\n\n12 where the proffered out-of-court statement is admissible under an established\n\n13 exception to the hearsay rule.\" Aspinall, 389 F.3d at 344; see, e.g., Jones, 299 F.3d at 113.\n\n14 But for statements that would be inadmissible as hearsay under the Federal Rules of\n\n15 Evidence, determinations as to good cause and the interests of justice \"require[] the\n\n16 court to balance the defendant's interest in confronting the declarant against . . . the\n\n17 government's reasons for not producing the witness and the reliability of the\n\n\n\n 31\n\f1 proffered hearsay.\" United States v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (internal\n\n2 quotation marks omitted), cert. denied, 568 U.S. 1092 (2013).\n\n\n\n\n3 CONCLUSION\n\n4 We have considered all of parties' arguments in support of their\n\n5 respective positions on this appeal and, except to the extent indicated above, have\n\n6 found them to be without merit. The judgment is vacated, and the matter is\n\n7 remanded for proceedings consistent with the foregoing.\n\n\n\n\n 32\n[END_CASE]",
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4,589,285 | Orlando v. Nassau Cty. Dist. Atty's Off. | 2019-02-11 | 17-2390 | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.", "parties": "", "opinions": [{"author": "DRONEY, Circuit Judge:", "type": "010combined", "text": "17‐2390 \n Orlando v. Nassau Cty. Dist. Atty’s Off. \n\n\n\n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4 \n 5 \n 6 August Term, 2017 \n 7 No. 17‐2390 \n 8 \n 9 MARK ORLANDO, \n10 Petitioner‐Appellant, \n11 \n12 v. \n13 \n14 NASSAU COUNTY DISTRICT ATTORNEY’S OFFICE, \n15 Respondent‐Appellee.1 2 \n16 \n17 \n18 \n19 \n20 \n\n 1 The Clerk of Court is directed to amend the caption as set forth above. \n\n 2\n The Nassau County District Attorney’s Office has proceeded as respondent in \n this case, without objection. However, “§ 2254 petitioners challenging present \n physical custody [should] name either the warden or the chief state penal officer \n as a respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 450 n.18 (2004) (emphasis \n removed) (citing Rule 2(a) of the Rules Governing Section 2254 Cases in the United \n States District Courts; Advisory Committeeʹs Note on Rule 2(a), 28 U.S.C., pp. 469‐\n 470 (adopted in 1976) (stating that this is the rule in the “usual case”)). As such, \n the district court is directed on remand (and prior to issuing the writ) to substitute \n as respondent the warden of Orlando’s place of incarceration. \n\n \n\n\n\n\n 1 \n 2 \n 3 Appeal from the United States District Court \n 4 for the Eastern District of New York. \n 5 No. 11‐cv‐3992 — Edward R. Korman, Judge. \n 6 \n 7 \n 8 ARGUED: MAY 30, 2018 \n 9 DECIDED: FEBRUARY 11, 2019 \n10 \n11 Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.* \n12 \n13 \n14 Appeal from a judgment of the United States District Court for \n15 the Eastern District of New York (Korman, J.) denying Petitioner‐\n16 Appellant Mark Orlando’s petition for a writ of habeas corpus \n17 pursuant to 28 U.S.C. § 2254. Orlando was convicted of murder in the \n18 second degree in the Supreme Court of New York, Nassau County. \n19 During the homicide investigation, police detectives separately \n20 interrogated Orlando and his alleged accomplice. The latter \n21 confessed that he had shot the victim, but that Orlando had hired him \n22 to commit the murder. At Orlando’s trial, a detective was permitted \n23 to testify that the accomplice had stated that Orlando paid him to \n24 commit the murder. The accomplice, who was tried separately, did \n25 not testify at Orlando’s trial. Orlando contends that notwithstanding \n26 a limiting instruction by the trial court, the detective’s testimony \n27 violated the Confrontation Clause of the Sixth Amendment and that \n28 the state court’s ruling to the contrary constituted an objectively \n29 unreasonable application of clearly established federal law. We \n\n *\n Judge Michael P. Shea, United States District Court for the District of Connecticut, \n sitting by designation. \n\n\n\n 2\n\n \n\n\n\n\n 1 agree. Accordingly, we REVERSE the district court’s denial of \n 2 Orlando’s petition, and REMAND the cause to the district court with \n 3 instructions to grant the petition for a writ of habeas corpus. \n 4 \n 5 Judge SHEA dissents in a separate opinion. \n 6 \n 7 \n 8 JANE SIMKIN SMITH, Millbrook, NY, for \n 9 Petitioner‐Appellant. \n10 \n11 SARAH S. RABINOWITZ, ASSISTANT \n12 DISTRICT ATTORNEY (Tammy J. \n13 Smiley, Assistant District Attorney, on \n14 the brief), for Madeline Singas, Nassau \n15 County District Attorney, Mineola, \n16 New York, for Respondent‐Appellee. \n17 DRONEY, Circuit Judge: \n\n18 On Friday night, December 3, 2004, at approximately 8:45 p.m., \n\n19 in response to a 911 call, police officers from the Long Beach, New \n\n20 York, police department found the body of Bobby Calabrese. 3 \n\n21 Calabrese was lying face down next to his Infiniti automobile, which \n\n22 was still running. He had been shot in the back of his head at close \n\n\n\n\n 3 Long Beach is in Nassau County, New York, on Long Island. \n\n\n\n 3\n\n \n\n\n\n\n 1 range three times with a .44 caliber revolver. Calabrese had been a \n\n 2 “runner” for an illegal sports betting organization. \n\n 3 The following Thursday, Nassau County police detectives \n\n 4 interviewed Mark Orlando and Herva Jeannot, who were together the \n\n 5 night of Calabrese’s homicide. The detectives believed that Orlando \n\n 6 and Jeannot had been with Calabrese that night. Orlando and Jeannot \n\n 7 were questioned in separate rooms at the police station. Jeannot \n\n 8 confessed to shooting Calabrese, stating that Orlando hired Jeannot \n\n 9 to murder Calabrese to avoid paying a gambling debt to Calabrese. \n\n10 During his questioning, Orlando gave two different statements to the \n\n11 police but denied being involved in the murder. \n\n12 Orlando and Jeannot were charged with murder for their roles \n\n13 in Calabrese’s death and, in August 2005, a jury in the New York \n\n14 Supreme Court for Nassau County convicted Mark Orlando of \n\n15 murder in the second degree. The trial court had severed Orlando \n\n16 and Jeannot’s trials to avoid a Sixth Amendment Confrontation \n\n\n\n\n 4\n\n \n\n\n\n\n 1 Clause violation that could have arisen from Orlando’s jury hearing \n\n 2 Jeannot’s confession if Jeannot did not testify and thus could not be \n\n 3 cross‐examined about it.4 Severing the trials, however, did not avoid \n\n 4 violating Orlando’s right to confront the witnesses against him, as the \n\n 5 trial court allowed the jury to learn of Jeannot’s confession \n\n 6 implicating Orlando at Orlando’s trial and Jeannot did not testify at \n\n 7 Orlando’s trial. \n\n 8 ORLANDO’S TRIAL \n\n 9 I. Evidence Before the Jury of Jeannot’s Statement \n\n10 The state’s theory at trial was that Orlando paid Jeannot to \n\n11 murder Calabrese to extinguish a $17,000 gambling debt Orlando \n\n12 owed to Calabrese and that Orlando assisted Jeannot in the murder. \n\n13 The prosecution argued that Orlando lured Calabrese to the remote \n\n\n\n\n 4 Although the record on appeal does not reflect the trial court’s decision to sever \n the trials, both Orlando and the state describe the trial court as having \n (appropriately) severed Orlando and Jeannot’s trials “pursuant to” Bruton v. \n United States, 391 U.S. 123, 124 (1968). Pet. Br. at 2; Respondent’s Br. at 39. \n\n\n\n 5\n\n \n\n\n\n\n 1 location near Long Beach5 on the pretext of meeting to pay the $17,000 \n\n 2 debt, but that Orlando had previously agreed to pay Jeannot to shoot \n\n 3 Calabrese when Orlando met up with Calabrese. Orlando did not \n\n 4 dispute at trial that he was present for the murder, but contended that \n\n 5 he had intended merely to pay Calabrese; he did not expect Jeannot \n\n 6 (who was a friend of Orlando’s and a passenger in the car Orlando \n\n 7 drove that night) to shoot Calabrese and then take the gambling \n\n 8 money for himself. \n\n 9 During his police interrogation, Orlando gave two statements \n\n10 to Nassau County Police Detectives. Detectives McHugh and \n\n11 McGinn jointly interviewed Orlando when he gave his first statement, \n\n12 and Detective McHugh testified to this statement at Orlando’s trial. \n\n13 According to McHugh, Orlando first stated that he and Jeannot were \n\n14 good friends and coworkers at Professional Credit Services, a Long \n\n\n\n 5\n Although officers from the Long Beach police department responded to the \n report of the homicide, the homicide occurred in Island Park, which is a town \n adjacent to Long Beach. \n\n\n\n 6\n\n \n\n\n\n\n 1 Island debt collection agency. Orlando regularly gambled on sports. \n\n 2 About one month before the murder, another coworker introduced \n\n 3 Orlando to Calabrese. Orlando began to place bets through Calabrese \n\n 4 and soon won $28,465. \n\n 5 Orlando’s winning streak with Calabrese ended, and Orlando \n\n 6 lost $17,800 over the course of two weeks. At that point, Orlando \n\n 7 stopped betting with Calabrese. But Orlando still owed Calabrese \n\n 8 $17,000, and he arranged to pay Calabrese on December 3. \n\n 9 In that first statement to the Nassau County detectives, Orlando \n\n10 indicated that he and Jeannot went together in Orlando’s wife’s car to \n\n11 pay Calabrese, did so, and otherwise had an uneventful evening. \n\n12 After Orlando paid Calabrese the $17,000, he and Jeannot made \n\n13 several stops: at a Suzuki car dealership to pick up a check, at an ATM, \n\n14 and at Orlando’s friend’s house to look at some new construction. \n\n15 Orlando then dropped off Jeannot at Jeannot’s home, around 10:30 \n\n16 p.m. \n\n\n\n\n 7\n\n \n\n\n\n\n 1 After Detective McHugh finished testifying, Detective McGinn \n\n 2 took the stand and confirmed much of the substance of Orlando’s first \n\n 3 statement. According to McGinn, after Orlando signed a written \n\n 4 statement summarizing that version of the night’s events, Detectives \n\n 5 McGinn and McHugh left the interview room. McHugh went to \n\n 6 speak with Jeannot. Approximately three hours after leaving \n\n 7 Orlando’s interview room, McGinn returned to speak further with \n\n 8 Orlando. \n\n 9 Before Detective McGinn had begun testifying at Orlando’s \n\n10 trial (and out of the presence of the jury), counsel for Orlando had \n\n11 objected, on hearsay and Confrontation Clause grounds, to the \n\n12 admission of McGinn’s anticipated testimony recounting Jeannot’s \n\n13 statement as to Orlando’s involvement in the murder. The trial court \n\n14 denied the objection, ruling that “this information that the People are \n\n15 intending to offer in their direct case is not being offered for the truth \n\n16 of the contents of the statement but rather to give a clear picture to the \n\n\n\n\n 8\n\n \n\n\n\n\n 1 jury [of] what was going on during the interrogation of [Orlando].” \n\n 2 T. 166–67. \n\n 3 After Orlando’s objection was denied, the prosecution asked \n\n 4 Detective McGinn about “the circumstances under which [McGinn] \n\n 5 resumed speaking with” Orlando. T. 620.6 McGinn testified that he \n\n 6 had learned from Detective McHugh that Jeannot was making \n\n 7 inculpatory statements about the murder. “I knew Detective \n\n 8 McHugh was in talking to Mr. Herva Jeannot,” McGinn testified. Id. \n\n 9 “I believe,” he told the jury, “that Herva Jeannot was relaying some \n\n10 of the events that really took place that night [of the murder].” Id. \n\n11 McGinn then testified that he re‐entered Orlando’s interview \n\n12 room. Id. “I went back in and I told Mr. Orlando that Detective \n\n13 McHugh was over there talking to Herva [Jeannot] and he was \n\n14 probably giving us . . . other facts that happened that night, the truth \n\n\n\n\n 6 Citations to the trial transcript are abbreviated “T. __” throughout this opinion. \n\n\n\n 9\n\n \n\n\n\n\n 1 as to what happened that night.” Id. “Now, would be the time . . . to \n\n 2 tell us what was going on.” Id. \n\n 3 According to McGinn’s testimony, Orlando responded, “[y]ou \n\n 4 don’t understand,” and McGinn left the interview room. T. 620. \n\n 5 McGinn testified that he returned a few minutes later. According to \n\n 6 McGinn, “[a]gain, I explained to Mr. Orlando that Herva Jeannot was, \n\n 7 in fact, giving up . . . what we felt were truer versions of the events of \n\n 8 Bobby Calabrese’s murder. That we had a videotape of the spot the \n\n 9 meeting took place. That the meeting did not take place where \n\n10 [Orlando] originally told us it had taken place. I told [Orlando] that \n\n11 Herva Jeannot had given up where the gun was and that the \n\n12 defendant should . . .[,] if he wants his version of the story told[,] . . . \n\n13 tell us the truth at this point.” T. 621. \n\n14 Orlando initially responded, again, “you don’t understand,” \n\n15 but eventually stated, without elaboration, that he was afraid (of \n\n16 Jeannot) for his family. T. 621–23. McGinn testified that he again left \n\n\n\n\n 10\n\n \n\n\n\n\n 1 the interview room and that he came back around an hour later. He \n\n 2 then testified, over the renewed objection of Orlando’s attorney, to the \n\n 3 following: “I told [Orlando] . . . that Herva Jeannot was, in fact, talking \n\n 4 to the other detectives. [Jeannot] had given a statement and that he \n\n 5 had implicated himself in the murder. [Jeannot] said that he was the \n\n 6 murderer, but that Mark Orlando had paid him to do it.” T. 623–24. \n\n 7 At this point, the trial court gave the jury a limiting instruction. \n\n 8 The trial court stated, “Ladies and gentlemen, you have been \n\n 9 permitted to hear testimony about remarks made to the defendant by \n\n10 Detective McGinn about statements allegedly made by Herva \n\n11 Jeannot. You’re to consider this testimony only when considering the \n\n12 circumstances under which the defendant himself may have made \n\n13 statements and for no other purposes.” T. 624. \n\n14 The trial court then instructed the jury “to completely disregard \n\n15 any statement allegedly made by Herva Jeannot when considering \n\n16 evidence against the defendant. . . . You are not to concern yourself \n\n\n\n\n 11\n\n \n\n\n\n\n 1 with whether Herva Jeannot did or did not make any statements to \n\n 2 the police, if he did, what those statement[s] may have been or \n\n 3 whether or not they were true.”7 Id. \n\n 4 McGinn then resumed testifying. He testified that, after \n\n 5 learning of Jeannot’s statement implicating Orlando in the murder, \n\n 6 Orlando changed his account of the evening’s events. Orlando stated \n\n 7 that when he and Jeannot met Calabrese that night, Orlando paid \n\n 8 Calabrese and then Jeannot unexpectedly shot Calabrese, taking the \n\n 9 cash.8 T. 676–82. According to Orlando, he and Jeannot then drove \n\n10 away, and Jeannot threatened to harm Orlando’s (pregnant) wife if \n\n\n\n\n 7\n During its final charge to the jury, the trial court gave substantially the same \n limiting instruction as to McGinn’s testimony regarding Jeannot’s statement as it \n had given earlier in the trial. \n\n 8 Orlando first relayed this second version of events to McGinn. Then, McGinn left \n the room, and Nassau Country Detective Cerighino, who had not been present for \n the questioning of Orlando, came into the room. Cerighino reduced Orlando’s \n second account to writing. Cerighino wrote the statement based upon what \n Orlando told him, and Orlando signed it. The written statement is substantially \n similar to McGinn’s account at trial of the second version of events that Orlando \n gave to McGinn. \n\n\n\n 12\n\n \n\n\n\n\n 1 Orlando were to tell anyone about the homicide. T. 682. Jeannot told \n\n 2 Orlando that Calabrese was not the first person Jeannot had killed \n\n 3 and that Calabrese would not be the last. Id. As a result, according to \n\n 4 Orlando, he then made the stops at the car dealership and elsewhere \n\n 5 because he wanted people and cameras to observe that Jeannot was \n\n 6 with him. In addition, at some point, Jeannot told Orlando to stop on \n\n 7 a bridge, and Jeannot then threw the gun he used to kill Calabrese \n\n 8 into the water. \n\n 9 II. The Prosecution’s Summation \n\n10 The prosecution argued in its summation to the jury that \n\n11 Orlando had paid Jeannot to murder Calabrese. The prosecution also \n\n12 specifically called to the jury’s attention that “Detective McGinn \n\n13 leaves [Orlando’s interrogation room], comes back a little later, . . . \n\n14 [and] Detective McGinn finally says, look, [Jeannot’s] giving it up. \n\n15 [Jeannot’s] telling us everything. . . . He’s telling us he did the \n\n16 shooting and you paid him.” T. 894–95. \n\n\n\n\n 13\n\n \n\n\n\n\n 1 Apart from Jeannot’s statement, there was little evidence to \n\n 2 support the state’s theory. The prosecution showed that, after the \n\n 3 murder, investigators found in Jeannot’s home five one‐hundred \n\n 4 dollar bills and found in Orlando’s home ten one‐hundred dollar bills, \n\n 5 all of which had a large‐portrait image of Benjamin Franklin. The \n\n 6 prosecution argued, “How do you know [Orlando] paid [Jeannot?] \n\n 7 Why else would [Jeannot] do it, if not for $500, those five Ben \n\n 8 Franklins hundred dollar bills . . . a week after the execution murder. \n\n 9 Just so happens the defendant has ten of his own [$100 bills] back in \n\n10 [his home]. Of course [Orlando] paid [Jeannot]. [Jeannot’s] not doing \n\n11 it as a favor.” T. 876. \n\n12 The prosecution again returned to its “murder‐for‐hire” theory \n\n13 later in its closing argument, stating that “[Orlando] wasn’t upset by \n\n14 watching Bobby die. That was what was supposed to happen. That \n\n15 is what he paid [Jeannot] to do, to do his dirty work for him. Couldn’t \n\n16 do it himself.” T. 885. The prosecution suggested that Orlando paid \n\n\n\n\n 14\n\n \n\n\n\n\n 1 Jeannot when the pair briefly stopped at Orlando’s house after the \n\n 2 murder. T. 890. \n\n 3 III. Verdict and Sentence \n 4 \n 5 The jury found Orlando guilty of murder in the second degree. \n\n 6 Orlando was sentenced to an indeterminate term of 25 years to life in \n\n 7 prison on August 18, 2005. He is currently serving his sentence. \n\n 8 Jeannot was also convicted of the murder in a separate trial. \n\n 9 STATE COURT APPELLATE PROCEEDINGS \n\n10 Orlando appealed his conviction to the New York Supreme \n\n11 Court, Appellate Division. People v. Orlando, 61 A.D.3d 1001 (N.Y. \n\n12 App. Div. 2d Dep’t 2009). Orlando contended that Detective \n\n13 McGinn’s testimony as to Jeannot’s statement was inadmissible \n\n14 hearsay and also violated Orlando’s right to confront witnesses \n\n15 through cross examination, as guaranteed by the Sixth Amendment \n\n16 of the United States Constitution and incorporated against the states \n\n17 by the Fourteenth Amendment. Appellant’s Br. at 70–77, People v. \n\n\n\n\n 15\n\n \n\n\n\n\n 1 Orlando, No. 2005‐08854 (N.Y. App. Div. 2d Dep’t Mar. 23, 2008); \n\n 2 Orlando, 61 A.D.3d at 1001–03. \n\n 3 The Appellate Division rejected Orlando’s argument in a single \n\n 4 sentence, stating: “The [trial] court properly instructed the jury that \n\n 5 the testimony was admitted for the limited purpose of explaining the \n\n 6 detectiveʹs actions and their effect on the defendant, and not for the \n\n 7 truth of the codefendantʹs statement. ” Id. (quoting People v. Ewell, 12 \n\n 8 A.D.3d 616, 617 (N.Y. App. Div. 2d Dep’t 2004)) (internal quotation \n\n 9 marks omitted).9 The Appellate Division also cited Tennessee v. Street, \n\n10 471 U.S. 409 (1985), for its conclusion that the trial court did not err in \n\n11 admitting Jeannot’s statement through Detective McGinn. Id. \n\n\n\n\n 9 Although the Appellate Division described Jeannot as a “codefendant,” as is \n mentioned in the above text, he was tried and convicted at a separate trial after the \n Bruton ruling severing the trials. \n\n\n\n 16\n\n \n\n\n\n\n 1 The New York Court of Appeals subsequently denied Orlando \n\n 2 leave to appeal, thereby rendering the Appellate Division’s decision \n\n 3 final. People v. Orlando, 981 N.E.2d 291, 291 (N.Y. 2012).10 \n\n 4 SECTION 2254 PROCEEDING IN THE DISTRICT COURT \n 5 \n 6 Orlando, proceeding pro se, filed a petition for a writ of habeas \n\n 7 corpus pursuant to 28 U.S.C. § 2254 in the United States District Court \n\n 8 for the Eastern District of New York. As in his direct appeal, Orlando \n\n 9 argued that McGinn’s testimony regarding Jeannot’s statement was \n\n10 inadmissible hearsay and violated his Confrontation Clause right. \n\n11 The district court denied the writ.11 \n\n12 The district court identified the following testimony by McGinn \n\n13 as at issue in the Confrontation Clause analysis: \n\n\n\n Following his unsuccessful state appeals, Orlando filed two unsuccessful coram \n 10\n\n nobis petitions in state court alleging ineffective assistance of appellate counsel. See \n People v. Orlando, 85 A.D.3d 823 (N.Y. App. Div. 2d Dep’t 2011); People v. Orlando, \n 98 A.D.3d 691 (N.Y. App. Div. 2d Dep’t 2012). There is no dispute that Orlando \n has properly exhausted his Confrontation Clause claim for federal habeas review. \n\n 11 Orlando pursues only his Confrontation Clause challenge on appeal. See \n generally Pet. Br. \n\n\n\n 17\n\n \n\n\n\n\n 1 I left the [interrogation] room at about 6:50 [AM]. I went \n 2 back into the room at about ten minutes to eight. About 7:50 \n 3 in the morning. And I told [Orlando] at this point that \n 4 Herva Jeannot was, in fact, talking to the other detectives. \n 5 He had given a statement and he had implicated himself in \n 6 the murder. He said that he was the murderer, but that \n 7 Mark Orlando had paid him to do it. \n 8 \n 9 Orlando v. Nassau Cty. Dist. Atty’s Office, 246 F. Supp. 3d 569, 572–73 \n\n10 (E.D.N.Y. 2017).12 \n\n11 Relying principally on Tennessee v. Street, 471 U.S. 409 (1985), \n\n12 and United States v. Logan, 419 F.3d 172 (2d Cir. 2005), the district court \n\n13 rejected Orlando’s Confrontation Clause argument. Orlando, 246 F. \n\n14 Supp. 3d at 571–76. The district court reasoned that Jeannot’s \n\n15 statement was not offered against Orlando for its truth but only \n\n16 “provided context for explaining why Orlando altered his [original] \n\n\n\n\n 12 The district court did not recount or discuss the portion of McGinn’s testimony \n to the jury that vouched for the truth of Jeannot’s statement. T. 620 (“Herva \n Jeannot was relaying some of the events that really took place that night . . . the \n truth as to what happened that night.”); T. 621 (“I explained to Mr. Orlando that \n Herva Jeannot was, in fact, giving up what we felt were truer versions of the events \n of Bobby Calabrese’s murder.”) (emphasis added). That aspect of McGinn’s \n testimony is discussed later in this opinion. \n\n\n\n 18\n\n \n\n\n\n\n 1 exculpatory story” to admit that he had in fact been present for the \n\n 2 murder but that Jeannot had unexpectedly committed it. Id. at 574. \n\n 3 The district court also held that any error was harmless. Id. at 575–76. \n\n 4 The district court issued a certificate of appealability as to \n\n 5 Orlando’s Confrontation Clause argument. Id. at 578. Orlando then \n\n 6 timely filed a notice of appeal. \n\n 7 DISCUSSION \n\n 8 Orlando argues that: (1) without his ability to cross‐examine \n\n 9 Jeannot, McGinn’s testimony recounting Jeannot’s statement violated \n\n10 Orlando’s Confrontation Clause right; (2) the Appellate Division’s \n\n11 ruling to the contrary was “objectively unreasonable;” and (3) the \n\n12 erroneous admission of the testimony was not harmless. We agree. \n\n13 Accordingly, we reverse the district court’s denial of Orlando’s \n\n14 petition. \n\n15 \n\n16 \n\n\n\n\n 19\n\n \n\n\n\n\n 1 I. Standard of Review and Section 2254 Framework \n 2 \n 3 Under 28 U.S.C. § 2254, “a person in custody pursuant to the \n\n 4 judgment of a State court” may petition a district court for a writ of \n\n 5 habeas corpus “on the ground that he is in custody in violation of the \n\n 6 Constitution or laws or treaties of the United States.” Id. § 2254(a). \n\n 7 We review de novo a district court’s denial of a petition for a writ of \n\n 8 habeas corpus pursuant to 28 U.S.C. § 2254. Lynch v. Dolce, 789 F.3d \n\n 9 303, 311–12 (2d Cir. 2015). \n\n10 A petition for a writ of habeas corpus “shall not be granted with \n\n11 respect to any claim that was adjudicated on the merits in State court \n\n12 proceedings unless the adjudication of the claim . . . resulted in a \n\n13 decision that was contrary to, or involved an unreasonable \n\n14 application of, clearly established Federal law, as determined by the \n\n15 Supreme Court of the United States.” § 2254(d). “A state court \n\n16 decision is an ‘unreasonable application’ of clearly established federal \n\n17 law ‘if the state court identifies the correct governing legal principle \n\n\n\n\n 20\n\n \n\n\n\n\n 1 from [the Supreme] Courtʹs decisions but unreasonably applies that \n\n 2 principle to the facts of the prisoner’s case.’” Howard v. Walker, 406 \n\n 3 F.3d 114, 122 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, \n\n 4 413 (2000)). However, that bar is not reached where “fairminded \n\n 5 jurists could disagree on the correctness of the state court’s decision.” \n\n 6 Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks \n\n 7 and citation omitted). \n\n 8 II. The Confrontation Clause Violation \n\n 9 The Sixth Amendment’s Confrontation Clause provides that \n\n10 “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to \n\n11 be confronted with the witnesses against him.” U.S. Const. amend. \n\n12 VI. “‘The crux of this right is that the government cannot introduce \n\n13 at trial” an out‐of‐court witness’s “statements containing accusations \n\n14 against the defendant unless the accuser takes the stand against the \n\n15 defendant and is available for cross examination.’” United States v. \n\n16 Jass, 569 F.3d 47, 55 (2d Cir. 2009) (quoting Ryan v. Miller, 303 F.3d 231, \n\n\n\n\n 21\n\n \n\n\n\n\n 1 247 (2d Cir. 2002)) (internal quotations omitted). To implicate the \n\n 2 Confrontation Clause, the statement must be used to prove the truth \n\n 3 of the matter asserted, and the statement must be “testimonial.” Davis \n\n 4 v. Washington, 547 U.S. 813, 821–22 (2006) (citing Crawford v. \n\n 5 Washington, 541 U.S. 36, 51 (2004)). In other words, it must be \n\n 6 “testimonial hearsay.” Id. at 823. \n\n 7 Out‐of‐court statements may have a proper purpose other than \n\n 8 being considered for their truth. The Supreme Court and this Circuit \n\n 9 have acknowledged that a trial court’s instruction to a jury to consider \n\n10 only for a limited, nonhearsay purpose the non‐testifying witness’s \n\n11 out‐of‐court statement “is generally sufficient to eliminate . . . \n\n12 Confrontation Clause concern[s].” Jass, 569 F.3d at 55 (citing \n\n13 Richardson v. Marsh, 481 U.S. 200, 206 (1987)). That is because “[t]he \n\n14 law ‘almost invariabl[y] assum[es]’ that jurors follow such limiting \n\n15 instructions.” Id. (quoting Richardson, 481 U.S. at 206). \n\n\n\n\n 22\n\n \n\n\n\n\n 1 “Nevertheless, in Bruton v. United States, . . . the Supreme Court \n\n 2 identified an exception to th[e] assumption” that jurors follow \n\n 3 limiting instructions. Id. In Bruton v. United States, 391 U.S. 123, 124 \n\n 4 (1968), the defendant Bruton and his codefendant were tried jointly \n\n 5 for armed postal robbery. A postal inspector testified that the \n\n 6 codefendant confessed to him that Bruton and the codefendant \n\n 7 committed the robbery together. Id. The codefendant did not take \n\n 8 the stand, so he could not be cross‐examined. Id. at 128. The district \n\n 9 court provided a limiting instruction to the jury that “although [the \n\n10 codefendant’s] confession was competent evidence against [the \n\n11 codefendant] it was inadmissible hearsay against [Bruton] and \n\n12 therefore had to be disregarded in determining [Bruton’s] guilt or \n\n13 innocence.” Id. at 125. \n\n14 The Supreme Court reversed Bruton’s conviction, holding that \n\n15 because his codefendant was not subject to cross examination and \n\n16 “because of the substantial risk that the jury, despite instructions to \n\n\n\n\n 23\n\n \n\n\n\n\n 1 the contrary, looked to the incriminating extrajudicial statements in \n\n 2 determining [Bruton’s] guilt,” admission of the codefendant’s \n\n 3 confession in front of Bruton’s jury violated Bruton’s “right of cross‐\n\n 4 examination secured by the Confrontation Clause of the Sixth \n\n 5 Amendment.” Id. at 126. \n\n 6 The Court further explained that “[n]ot only are [alleged \n\n 7 accomplices’] incriminations devastating to the defendant but their \n\n 8 credibility is inevitably suspect, a fact recognized when accomplices \n\n 9 do take the stand and the jury is instructed to weigh their testimony \n\n10 carefully given the recognized motivation to shift blame onto others. \n\n11 The unreliability of such evidence is intolerably compounded when \n\n12 the alleged accomplice . . . does not testify and cannot be tested by \n\n13 cross‐examination.” Id. at 136. \n\n14 As a result, when a non‐testifying witness’s confession \n\n15 “expressly” implicates the defendant, “the risk that the jury will not, \n\n16 or cannot, follow instructions [to limit its consideration of the \n\n\n\n\n 24\n\n \n\n\n\n\n 1 evidence for a proper purpose] is so great, and the consequences of \n\n 2 failure so vital to the defendant, that the practical and human \n\n 3 limitations of the jury system cannot be ignored.” Richardson, 481 U.S. \n\n 4 at 207–08 (quoting Bruton, 391 U.S. at 135–36). When a jury hears such \n\n 5 express incriminations, even if given a “clear” limiting instruction, \n\n 6 “the effect is the same as if there had been no instruction at all.” \n\n 7 Bruton, 391 U.S. at 137. \n\n 8 Although the non‐testifying witness in Bruton was a \n\n 9 codefendant in a joint trial, Bruton applies equally to the testimonial \n\n10 and incriminating statements of non‐testifying accomplices tried \n\n11 separately. See Crawford, 541 U.S. at 57, 69 (stating that testimonial \n\n12 statements admitted without the opportunity to cross‐examine the \n\n13 declarant violate the Confrontation Clause and referring to Bruton as \n\n14 barring “accomplice confessions where the defendant had no \n\n15 opportunity to cross‐examine”); Tennessee v Street, 471 U.S. 409, 411, \n\n16 414–15 (1985) (recognizing that if the jury had been asked to infer that \n\n\n\n\n 25\n\n \n\n\n\n\n 1 the confession of the non‐testifying accomplice—who was tried \n\n 2 separately—proved that the defendant participated in the murder, \n\n 3 “Confrontation Clause concerns would have been implicated”). \n\n 4 Here, the Appellate Division correctly acknowledged that, \n\n 5 absent cross‐examination of Jeannot, admission of his facially \n\n 6 incriminating statement risked violating the Confrontation Clause, as \n\n 7 was recognized in Bruton. 13 People v. Orlando, 61 A.D.3d at 1002. \n\n 8 However, the Appellate Division reasoned that the jury would use \n\n 9 this evidence only to “explain the detective’s actions and their effect” \n\n10 on Orlando—that effect presumably being the reason why Orlando \n\n11 changed his account of the events of the night of the murder. Id. \n\n\n\n\n 13 Although the Appellate Division did not cite Bruton or articulate its holding, a \n state reviewing court need not to do so in order for it to be considered to have \n applied the constitutional principles set forth in Supreme Court precedent. See, \n e.g., Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (“[A] state court need not even be \n aware of our precedents, so long as neither the reasoning nor the result of the state‐\n court decision contradicts them.”) (internal quotation marks and citation omitted). \n The Appellate Division did cite Tennessee v. Street, 471 U.S. 409 (1985), which is \n discussed later in this opinion. \n\n\n\n 26\n\n \n\n\n\n\n 1 That conclusion by the Appellate Division was an unreasonable \n\n 2 application of Bruton. McGinn led the jury to believe that Jeannot had \n\n 3 actually made the statement McGinn recounted, and that statement \n\n 4 expressly inculpated Orlando as Jeannot’s accomplice in the murder. \n\n 5 Bruton plainly instructs that the jury could not be presumed to \n\n 6 disregard Jeannot’s statement for its truth, even with a limiting \n\n 7 instruction.14 \n\n 8 A. Jeannot Was an Out‐of‐Court Witness \n\n 9 The state argues in its brief that “[n]either McGinn nor \n\n10 McHugh ever testified that Jeannot actually made the statements at \n\n11 issue,” Respondent’s Br. at 29–30; in other words, that Jeannot was \n\n12 not an out‐of‐court “witness” within the meaning of the \n\n13 Confrontation Clause, see Davis, 547 U.S. at 821–22. And so, the state \n\n\n\n 14 In addition, there is no doubt that Jeannot’s statement was “testimonial.” See \n Davis, 547 U.S. at 821–22 (holding that statements made “in the course of police \n interrogation” are testimonial when made under “circumstances objectively \n indicat[ing] . . . that the primary purpose of the interrogation [was] to establish or \n prove past events potentially relevant to later criminal prosecution”). \n\n\n\n 27\n\n \n\n\n\n\n 1 contends, the situation here was no different than a jury merely \n\n 2 hearing that an investigator had used deception to elicit a confession. \n\n 3 The state is incorrect; of course the prosecution led the jury to \n\n 4 believe that Jeannot had actually made the statement McGinn \n\n 5 recounted. McGinn testified that, “I knew Detective McHugh was in \n\n 6 talking to Mr. Herva Jeannot,” and that, “I believe that Herva Jeannot \n\n 7 was relaying some of the events that really took place that night.” T. \n\n 8 620. The prosecution never disavowed that Jeannot had made the \n\n 9 statement, and it even recounted the statement in its summation. And \n\n10 that very statement was the reason for the Bruton severance in the first \n\n11 place. Thus, Jeannot was indeed an out‐of‐court “witness” subject to \n\n12 the cross‐examination requirements of the Confrontation Clause.15 \n\n\n\n\n 15\n A witness need only recount the critical substance of the out‐of‐court statement \n to implicate the Confrontation Clause. See Ryan v. Miller, 303 F.3d 231, 248–49 (2d \n Cir. 2002) (granting section 2254 petition due to non‐harmless Confrontation \n Clause violation, stating that “[i]f the substance of the prohibited testimony is \n evident even though it was not introduced in the prohibited form, the testimony \n is still inadmissible,” and collecting cases); Ocampo v. Vail, 649 F.3d 1098, 1108–11 \n (9th Cir. 2011) (“Supreme Court law . . . clearly establishe[s] that testimony from \n\n 28\n\n \n\n\n\n\n 1 B. The Admission of Jeannot’s Statement Was Clearly Barred \n 2 by Bruton \n 3 \n 4 With the jury having heard this expressly incriminating \n\n 5 statement from Jeannot, the only reasonable conclusion was that the \n\n 6 Confrontation Clause was violated under Bruton. The risk that the \n\n 7 jury would consider Jeannot’s statement for its truth was simply too \n\n 8 great to allow the jury to hear it, absent cross‐examination of Jeannot. \n\n 9 Indeed, “the overwhelming probability” of jurors’ inability to “thrust \n\n10 out of mind” express “testimony that ‘the defendant helped me \n\n11 commit the crime’ . . . is the foundation of Bruton.” Richardson, 481 U.S. \n\n12 at 208 (emphasis added); see also Bruton, 391 U.S. at 129 (“The \n\n13 Government should not have the windfall of having the jury be \n\n14 influenced by evidence against a defendant which, as a matter of law, \n\n15 they should not consider but which they cannot put out of their \n\n16 minds.”) (internal quotation marks and citation omitted) (overruling \n\n\n\n which one could determine the critical content of the out‐of‐court statement [is] \n sufficient to trigger Confrontation Clause concerns.”).\n\n\n\n 29\n\n \n\n\n\n\n 1 Delli Paoli v. United States, 352 U.S. 232 (1957), and adopting the \n\n 2 reasoning of the dissent in that decision). \n\n 3 The Confrontation Clause violation here is even clearer than in \n\n 4 Bruton. Detective McGinn did not merely recount Jeannot’s \n\n 5 confession implicating Orlando; he also vouched for its veracity. \n\n 6 McGinn testified, “I believe that Herva Jeannot was relaying some of \n\n 7 the events that really took place that night . . . the truth as to what \n\n 8 happened that night,” T. 620 (emphasis added), and “I explained to \n\n 9 Mr. Orlando that Herva Jeannot was, in fact, giving up . . . what we felt \n\n10 were truer versions of the events of Bobby Calabrese’s murder.”16 T. \n\n11 621 (emphasis added). That testimony by McGinn made it even less \n\n12 likely than in Bruton that the jury would have obeyed the trial court’s \n\n13 limiting instruction. See, e.g., United States v. Forrester, 60 F.3d 52, 63–\n\n\n\n\n We acknowledge that the latter statement could possibly be read as McGinn \n 16\n\n explaining only to Orlando rather than to the jury that McGinn and McHugh \n believed Jeannot was telling the truth about Orlando’s involvement the murder. \n However, there was no such ambiguity with regard to McGinn’s first statement \n that he believed Jeannot was relaying what “really took place that night.” T. 620. \n\n\n\n 30\n\n \n\n\n\n\n 1 64 (2d Cir. 1995) (discussing the prejudicial impact of government \n\n 2 agents vouching for witnesses).\n\n 3 Likewise, the prosecution’s summation further undermined \n\n 4 any possible effectiveness of the limiting instruction when it \n\n 5 reminded the jury of its murder‐for‐hire theory three times and \n\n 6 specifically called to its attention McGinn’s testimony that he told \n\n 7 Orlando, “[Jeannot’s] telling us everything . . . . He’s telling us he did \n\n 8 the shooting and you paid him.” T. 895. But, as discussed below with \n\n 9 regard to the harmless error analysis, the evidence—other than \n\n10 Jeannot’s statement—that Orlando had hired Jeannot to murder \n\n11 Calabrese, was weak. Thus, the likelihood that the jury credited \n\n12 Jeannot’s statement was higher even than in Bruton, where the \n\n13 Supreme Court did not suggest that the prosecution had undermined \n\n14 the limiting instruction.17 \n\n\n\n 17 We note also that the limiting instruction was decidedly unclear. The trial court \n instructed the jury to consider the testimony at issue when considering “the \n circumstances under which Orlando made any statements.” T. 624. McGinn, \n however, had just told the jury that the “circumstances” which led him to resume \n\n 31\n\n \n\n\n\n\n 1 In opposing Orlando’s petition, the state relies primarily on the \n\n 2 Supreme Court’s decision in Tennessee v. Street, 471 U.S. 409 (1985). In \n\n 3 Street, the defendant, Street, was tried for murder separately from his \n\n 4 alleged accomplice, Peele. Id. at 411. Street had confessed during an \n\n 5 interview with police to participating in a burglary and the murder \n\n 6 with Peele. Id. \n\n 7 In its case‐in‐chief, the state introduced Street’s confession. Id. \n\n 8 Street then took the stand during his defense case, and he testified \n\n 9 that the police had coerced his confession and that he had not been \n\n10 involved in the murder. Id. Street claimed that the police had shown \n\n11 him Peele’s confession during his interview and forced Street to give \n\n12 the same account as Peele. Id. \n\n13 The trial court then permitted the state to introduce in its \n\n14 rebuttal case Peele’s confession through the testimony of Sheriff \n\n\n\n interrogating Orlando were that “Herva Jeannot was relaying some of the events \n that really took place that night.” T. 620. By contrast, even in Bruton, the jury \n instructions were “concededly clear.” Bruton, 391 U.S. at 137. \n\n\n\n 32\n\n \n\n\n\n\n 1 Papantoniou, the police officer who had taken it. Id. at 411–12. The \n\n 2 state showed the obvious differences between the two statements to \n\n 3 discredit Street’s testimony that his confession had been coerced and \n\n 4 that the statements’ claimed similarities demonstrated the coercion. \n\n 5 Id. at 412. Both at the time the police officer recounted Peele’s \n\n 6 statement and in its jury instructions, the trial court instructed the jury \n\n 7 that Peele’s statement was admitted not for its truth, but rather only \n\n 8 to rebut Street’s contention that his confession was coerced. Id. Peele \n\n 9 did not testify at Street’s trial and, thus, could not be cross‐examined \n\n10 about his statement. \n\n11 The Supreme Court affirmed Street’s murder conviction. Id. at \n\n12 417. According to the Court, “[t]he nonhearsay aspect of Peeleʹs \n\n13 confession—not to prove what happened at the murder scene but to \n\n14 prove what happened when respondent confessed—raises no \n\n15 Confrontation Clause concerns. The Clauseʹs fundamental role in \n\n16 protecting the right of cross‐examination . . . was [thus] satisfied by \n\n\n\n\n 33\n\n \n\n\n\n\n 1 Sheriff Papantoniouʹs presence on the stand.” Id. at 414. After all, the \n\n 2 Supreme Court stated, “[i]f [Street’s] counsel doubted that [the \n\n 3 accomplice’s] confession was accurately recounted, he was free to \n\n 4 cross‐examine the Sheriff. By cross‐examination [Street’s] counsel \n\n 5 could also challenge Sheriff Papantoniou’s testimony that he did not \n\n 6 read from Peeleʹs statement and direct respondent to say the same \n\n 7 thing. In short, the State’s rebuttal witness against [Street] was not \n\n 8 Peele, but Sheriff Papantoniou.” Id. \n\n 9 The Court in Street went on to acknowledge that its conclusion \n\n10 depended on the “crucial assumption” that the jurors followed the \n\n11 trial court’s limiting instructions. Id. at 415. There, as in Bruton, \n\n12 Street’s accomplice had expressly implicated him in the crime. But \n\n13 unlike in Bruton, Street had placed the state in the position of not \n\n14 being able to effectively challenge Street’s testimony that his \n\n15 confession was coerced. And “the State’s most important piece of \n\n16 substantive evidence was [Street’s] confession.” Id. The only \n\n\n\n\n 34\n\n \n\n\n\n\n 1 available way to rebut Street’s contention of a coerced confession was \n\n 2 to compare Peele’s confession with Street’s; if they were different, that \n\n 3 would tend to show that Street’s coercion testimony was not credible. \n\n 4 See id. at 415–16. And so, if the trial court in Street had not allowed the \n\n 5 accomplice’s confession to be brought before the jury, that “would \n\n 6 have been at odds with the Confrontation Clause’s very mission—to \n\n 7 advance the accuracy of the truth‐determining process.” Id. at 415. \n\n 8 Thus, the Court in Street found, unlike in Bruton, that there were \n\n 9 “no alternatives [but allowing admission of the accomplice’s \n\n10 confession] that would have both assured the integrity of the trial’s \n\n11 truth‐seeking function and eliminated the risk of the jury’s improper \n\n12 use of evidence.” Id. \n\n13 Notably, in its conclusion, the Court in Street also took care to \n\n14 emphasize that the “prosecutor’s questions and closing argument” \n\n15 had done nothing to distract the jury from the accomplice confession’s \n\n16 “distinctive and limited purpose.” Id. at 417. It was only “in this \n\n\n\n\n 35\n\n \n\n\n\n\n 1 context” that the trial judge’s instructions were sufficient to prevent a \n\n 2 Confrontation Clause violation. Id. (emphasis added). \n\n 3 This case is very different from Street. The prosecution argued \n\n 4 that Jeannot’s statement merely showed “context” for why Orlando \n\n 5 changed his statement. But Jeannot’s statement went far beyond any \n\n 6 limited value in showing why Orlando changed his account of what \n\n 7 happened that night. The prosecution elicited testimony from \n\n 8 Detective McGinn that Jeannot had actually made the incriminating \n\n 9 statement, and McGinn vouched for Jeannot’s account. In its \n\n10 summation, the prosecution also repeated Jeannot’s statement, and \n\n11 pressed its murder‐for‐hire theory. \n\n12 Moreover, the prosecution’s need for the purported “context” \n\n13 was of little importance as compared to the need in Street. Orlando’s \n\n14 changing his account of the homicide was no different than many \n\n15 investigations when suspects make a series of statements; absent the \n\n16 substance of Jeannot’s statement, the jury still could have learned that \n\n\n\n\n 36\n\n \n\n\n\n\n 1 after several hours of interrogation, Orlando revised his story and \n\n 2 placed himself at the scene of the murder and admitted to lying about \n\n 3 his original account. That approach would have significantly \n\n 4 advanced the prosecution’s case without a critical narrative gap and, \n\n 5 accordingly, the “truth‐seeking function” of the trial would not have \n\n 6 been impeded in a way comparable to Street. See id. at 415–16. Nor \n\n 7 did Orlando take the stand at his trial, and so the credibility of his \n\n 8 own trial testimony was not an issue, unlike in Street where the state \n\n 9 otherwise would not have been able to challenge Street’s principal \n\n10 defense of coercion in giving his statement. \n\n11 To extend Street to the situation presented here would \n\n12 eviscerate the core protection of Bruton. To allow admission of \n\n13 Jeannot’s statement through McGinn would permit the admission of \n\n14 inculpatory statements of non‐testifying codefendants whenever the \n\n15 defendant changed his initial statement to investigators after \n\n16 investigators told the defendant of an accomplice’s incriminating \n\n\n\n\n 37\n\n \n\n\n\n\n1 confession. The prosecution would need only then argue to the trial \n\n2 court that the other confession was being shown to the jury just to \n\n3 show why there were changes to the original statement.18 19 \n\n4 * * * \n\n\n\n\n 18 The state also contends that the admission of Jeannot’s statements established \n “the voluntariness of [Orlando’s] statements.” Respondent’s Br. 30–31, 35. But, \n unlike Street, Orlando did not contest their voluntariness at trial. And, there was \n other evidence that Orlando’s statements were voluntary. The detectives testified \n that Orlando was advised of his Miranda rights and agreed to speak with them, \n and Orlando indicated that he understood his Miranda rights, was willing to give \n a statement without speaking with a lawyer or having one present, and that he \n was “mak[ing] the . . . statement[s] freely and voluntarily.” T. 546. \n \n 19 Other circuits have also recognized that Street does not permit the admission of \n\n an out‐of‐court accomplice statement merely because it may have some purpose \n other than for its truth. See, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1172–73 (9th Cir. \n 2001) (granting section 2254 petition due to Confrontation Clause violation and \n other constitutional errors, and stating that “[e]ven if the statements [we]re \n classified as non‐hearsay, they are sufficiently prejudicial that the jury would be \n unable to consider them only for limited purposes and would consider them for \n their truth in violation of the Confrontation Clause”) (abrogated on unrelated \n grounds by Payton v. Woodford, 299 F.3d 815, 828–29 n.11 (9th Cir. 2002), which the \n Supreme Court then vacated, 538 U.S. 975 (2003)); cf. United States v. Taylor, 569 \n F.3d 742, 750 (7th Cir. 2009) (finding no Confrontation Clause violation because \n the out‐of‐court statements were nonhearsay and there were no “complicating \n circumstances, such as a prosecutor who exploits nonhearsay statements for their truth”) \n (internal quotation marks and citation omitted) (emphasis added). \n\n\n\n 38\n\n \n\n\n\n\n 1 We hold that the Appellate Division unreasonably applied \n\n 2 Bruton in concluding that Orlando’s Sixth Amendment right to cross‐\n\n 3 examine a witness against him was not violated when the jury heard \n\n 4 of Jeannot’s statement implicating Orlando in the murder. To the \n\n 5 extent that the Appellate Division applied Street, it also extended that \n\n 6 decision unreasonably.20 \n\n 7 III. The Error Was Not Harmless \n\n 8 As Orlando and the state agree, the improper admission of \n\n 9 evidence in violation of the Confrontation Clause is subject to review \n\n10 for harmless error. Hendrix v. Smith, 639 F.2d 113, 115 (2d Cir. 1981) \n\n11 (citing Chapman v. California, 386 U.S. 18 (1967); Schneble v. Florida, 405 \n\n12 U.S. 427 (1972)). When a state court makes a harmless error \n\n\n\n\n 20 The state’s reliance on United States v. Logan, 419 F.3d 172 (2d Cir. 2005), is also \n misplaced. In Logan, the coconspirators’ statements concerning an alibi were \n admitted only to show the existence of a conspiracy. Id. at 176–78. Moreover, the \n statements were not admitted for their truth but—to the contrary—were shown to \n be untruthful. Id. Here, Jeannot’s statement—as recounted by Detective \n McGinn—was consistent with the state’s theory and was specifically utilized by \n the state to support that theory. \n \n\n 39\n\n \n\n\n\n\n 1 determination on direct appeal, we owe the “harmlessness \n\n 2 determination itself” deference under the Antiterrorism and Effective \n\n 3 Death Penalty Act of 1996 (“AEDPA”). Ayala, 135 S. Ct. at 2199. Here, \n\n 4 because the Appellate Division did not determine that the admission \n\n 5 of McGinn’s testimony as to Jeannot’s statements was harmless, we \n\n 6 owe no deference to the Appellate Division on that issue. E.g., Cotto \n\n 7 v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003) (“In this \n\n 8 case, harmless error was never reached in the state courts, and there \n\n 9 is therefore no state ruling which commands AEDPA deference.”). \n\n10 An error was harmless unless it resulted in “actual prejudice,” \n\n11 Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. \n\n12 Abrahamson, 507 U.S. 619, 637 (1993)), meaning that a court has “grave \n\n13 doubt about whether” the error “had ‘substantial and injurious effect \n\n14 or influence in determining the jury’s verdict.’” Id. at 2198 (quoting \n\n15 O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). This “Brecht standard” \n\n\n\n\n 40\n\n \n\n\n\n\n 1 requires “more than a ‘reasonable possibility’ that the error was \n\n 2 harmful.” Id. (quoting Brecht, 507 U.S. at 637). \n\n 3 We have little doubt that the improperly admitted testimony as \n\n 4 to Jeannot’s statement had such a powerful effect on the jury. The \n\n 5 prosecution’s theory was that Orlando was guilty of murder for \n\n 6 acting as Jeannot’s accomplice by paying Jeannot to shoot Calabrese \n\n 7 and helping Jeannot to do so. The trial judge instructed the jury that, \n\n 8 to convict Orlando, the prosecution had to prove that Orlando acted \n\n 9 in concert with Jeannot. The state argues that, even absent admission \n\n10 of Jeannot’s confession through McGinn’s testimony, the evidence of \n\n11 Orlando’s guilt was “nothing short of overwhelming.” Respondent’s \n\n12 Br. at 47. \n\n13 In support, the state contends that Orlando’s $17,000 gambling \n\n14 debt to Calabrese was compelling evidence of motive; that the \n\n15 hundred‐dollar bills found in the homes of both Orlando and Jeannot \n\n16 after the murder were evidence of the murder‐for‐hire transaction; \n\n\n\n\n 41\n\n \n\n\n\n\n 1 and that forensic testimony as to the location of bullet holes in \n\n 2 Calabrese’s sweatshirt showed that Orlando pulled the sweatshirt \n\n 3 over Calabrese’s head before Jeannot shot him. Finally, the state \n\n 4 emphasizes that the video evidence, as well as cell site evidence, \n\n 5 showed that Orlando was at the location where the homicide \n\n 6 occurred. We address these arguments in turn. \n\n 7 A. Evidence of Motive \n\n 8 Although it was undisputed that Orlando owed Calabrese \n\n 9 $17,000, the evidence showed that Orlando had won $27,000 in the \n\n10 month prior. Accordingly, he had net winnings of $10,000 over a six‐\n\n11 week period. Moreover, the evidence showed that Orlando had \n\n12 $2,700 in cash in his residence after the murder (and after he \n\n13 purportedly paid Jeannot to commit the murder). And so, the \n\n14 evidence that Orlando lacked the funds to pay Calabrese was slight.21 \n\n15 \n\n\n\n 21 The state also did not introduce evidence of Orlando’s bank records at trial. \n\n\n\n 42\n\n \n\n\n\n\n 1 Moreover, it strains credulity that Orlando would have \n\n 2 believed that murdering a courier in an illegal gambling operation \n\n 3 would erase a gambling debt of $17,000 and prevent attempts by the \n\n 4 other members of the gambling operation to seek payment. The \n\n 5 prosecution argued that Orlando’s plan was to murder Calabrese and \n\n 6 then claim to Calabrese’s superiors in the illegal sports betting \n\n 7 organization that he had paid Calabrese (and that Calabrese must \n\n 8 have been robbed and murdered by someone else). But it certainly is \n\n 9 not obvious that Orlando would have thought such a plan would \n\n10 work. \n\n11 B. Evidence of a Murder‐for‐Hire Transaction \n\n12 Similarly, the discovery of a small number of one‐hundred‐\n\n13 dollar bills in the homes of both Orlando and Jeannot after the murder \n\n14 was not particularly probative of a murder‐for‐hire transaction. The \n\n15 state asserts that the hundred‐dollar bill design with “the large \n\n16 picture of Ben Franklin” was “then new” and, thus so rare as to mean \n\n\n\n\n 43\n\n \n\n\n\n\n 1 Jeannot’s bills likely came from Orlando. Respondent’s Br. at 48. But \n\n 2 that design began circulating in 1996,22 eight years before the murder \n\n 3 of Calabrese. A jury thus would not have found it remarkable that \n\n 4 the bills in both homes had the same design. Nor did the U.S. \n\n 5 currency found in Jeannot’s home have any fingerprints, sequential \n\n 6 serial numbers, or DNA that might have linked them to a transaction \n\n 7 between Orlando and Jeannot. \n\n 8 In addition, only $500 in bills was found in Jeannot’s home. It \n\n 9 is entirely unclear why Jeannot would accept only $500 to commit a \n\n10 murder, particularly given that Jeannot undisputedly knew Orlando \n\n11 owed Calabrese many times that amount. The prosecution suggested \n\n12 that the $500 found in Jeannot’s home may have been only a small \n\n13 portion of the murder‐for‐hire payment. But the prosecution \n\n\n\n\n 22 See, e.g., Carl Rochelle, Redesigned $100 Bill Aimed at Foiling Counterfeiters, CNN \n (Mar. 25, 1996, 1:35 AM), http://edition.cnn.com/US/9603/new_100_bill/index.html \n (stating that the redesigned $100 bills with a larger Ben Franklin were to go into \n circulation on March 25, 1996). \n\n\n\n 44\n\n \n\n\n\n\n 1 presented no theory or evidence as to what may have happened to \n\n 2 any cash payment that exceeded the $500 found. \n\n 3 C. Forensic Evidence \n\n 4 We turn next to the expert testimony of two other Nassau \n\n 5 County detectives and Nassau County Deputy Chief Medical \n\n 6 Examiner DeMartino regarding the bullet holes in Calabrese’s \n\n 7 sweatshirt. The state argues that forensic evidence clearly established \n\n 8 that, just before Jeannot fired the first shot, Orlando pulled \n\n 9 Calabrese’s sweatshirt over Calabrese’s head to help Jeannot shoot \n\n10 him.23 \n\n11 We disagree that this evidence was persuasive of Orlando \n\n12 helping Jeannot shoot Calabrese. First, the location of the bullet holes \n\n13 did not clearly establish that Calabrese’s sweatshirt had been pulled \n\n14 up over his head at the time the first shot was fired. That is the \n\n\n\n The district court agreed with that argument, stating that the forensic evidence \n 23\n\n gave rise to “an inescapable inference . . . that Orlando . . . pulled the sweatshirt \n over Calabreseʹs head.” Orlando, 246 F. Supp. 3d at 576. \n\n\n\n 45\n\n \n\n\n\n\n 1 relevant time that, according to the prosecution, Orlando would have \n\n 2 been pulling up the sweatshirt. The first shot undisputedly went \n\n 3 through Calabrese’s right forearm, making holes only in his \n\n 4 sweatshirt sleeve, and the bullet then lodged in the right side of \n\n 5 Calabrese’s head. The prosecution suggested to the jury that Orlando \n\n 6 had pulled the sweatshirt so far over Calabrese’s head that the back \n\n 7 of his head was exposed, allowing the first bullet to pass through the \n\n 8 sleeve without creating any other holes in the sweatshirt. That is \n\n 9 possible, but that evidence is just as—if not more—consistent with \n\n10 Calabrese, for example, putting up his arms in a defensive position, \n\n11 and the first bullet passing through his right sleeve and arm, and then, \n\n12 into his uncovered24 head. Indeed, the medical examiner DeMartino \n\n13 concluded that the wound in Calabrese’s right arm was consistent \n\n\n\n\n 24 Nassau County Forensic Evidence Bureau Detective Kovar, whom the \n prosecution called to testify as to trace forensic evidence at the scene of the crime, \n agreed that the hood of the sweatshirt was not covering Calabrese’s head at the \n time the first shot was fired. \n\n\n\n 46\n\n \n\n\n\n\n 1 with Calabrese having raised his arm in a defensive manner prior to \n\n 2 the first shot being fired. Or, even if the sweatshirt had been pulled \n\n 3 up, it could have been done by Jeannot prior to shooting Calabrese. \n\n 4 By contrast, the forensic evidence was clearer that at the time \n\n 5 the second and third shots were fired into the back of Calabrese’s \n\n 6 head, his sweatshirt was pulled up over his head. There were holes \n\n 7 in the back of Calabrese’s sweatshirt that matched up with the bullet \n\n 8 wounds in the back of his head. But, it is not disputed that at the time \n\n 9 the second and third shots were fired, Calabrese was already lying, \n\n10 face‐down, on the ground from the effect of the first shot. Maybe \n\n11 Orlando pulled the sweatshirt over Calabrese’s head after the first \n\n12 shot; maybe it was Jeannot who pulled up the sweatshirt at this point \n\n13 to avoid blood splatter; or maybe the sweatshirt came upward as \n\n14 Calabrese fell to the ground and struggled after the first shot. In any \n\n15 event, the only obvious conclusions from the sweatshirt and autopsy \n\n16 evidence were that Calabrese was first shot by Jeannot from behind, \n\n\n\n\n 47\n\n \n\n\n\n\n 1 while he was standing up, and then twice more while lying on the \n\n 2 ground, with the sweatshirt over his head for the second and third \n\n 3 shots. But it is far from clear how the sweatshirt ended up over his \n\n 4 head. \n\n 5 The state introduced no other forensic evidence pointing to \n\n 6 Orlando, such as DNA, fingerprints, or blood in his car or on his \n\n 7 clothing. In sum, the forensic evidence to support the prosecution’s \n\n 8 accomplice theory was insubstantial. \n\n 9 D. Orlando’s Choice of a Meeting Location \n\n10 The evidence that Orlando chose a discreet meeting location to \n\n11 pay his debt to Calabrese was also only minimally probative of his \n\n12 guilt. Orlando told investigators that he and Calabrese had arranged \n\n13 to meet on December 3 in Island Park, and that he called Calabrese \n\n14 shortly beforehand to change the meeting to a more secluded place \n\n15 because there were several people within sight of the planned \n\n16 meeting location. \n\n\n\n\n 48\n\n \n\n\n\n\n 1 Jurors could have credited Orlando’s choice of meeting \n\n 2 location as part of a plan to murder Calabrese, but they could also \n\n 3 reasonably have accepted that Orlando was concerned about being \n\n 4 seen engaging in an illegal $17,000 gambling transaction. \n\n 5 E. Evidence of an Attempt to Create an Alibi \n\n 6 The prosecution also contended that the jury could have \n\n 7 construed Orlando’s several stops after the murder as evidence of an \n\n 8 attempt to manufacture a false alibi. Orlando explained the stops as \n\n 9 an attempt to be seen with Jeannot, so that Jeannot could not blame \n\n10 the murder on Orlando. But, a jury could instead have reasonably \n\n11 inferred that, given Jeannot’s purported threat to Orlando to maintain \n\n12 his silence, Orlando’s behavior after the murder was consistent with \n\n13 an attempt to put Jeannot at ease that Orlando would not report \n\n14 Jeannot’s role in the murder. \n\n15 \n\n16 \n\n\n\n\n 49\n\n \n\n\n\n\n 1 F. Evidence Orlando Was at the Murder Scene \n\n 2 Lastly, we acknowledge that the prosecution needed only to \n\n 3 convict Orlando of murder and not to prove specifically its murder‐\n\n 4 for‐hire theory. In that regard, the state emphasizes, for example, the \n\n 5 evidence that Orlando was present at the murder scene. In addition, \n\n 6 Orlando’s coworker Barbara Diamant testified that Orlando told her \n\n 7 the morning after the homicide that Calabrese had been shot in the \n\n 8 back of the head three times, before this became public information. \n\n 9 However, that Orlando was present for the murder was not disputed \n\n10 by him in his second statement or at trial, and as discussed above, the \n\n11 evidence that Orlando assisted the murder in some way was made \n\n12 substantially stronger by Jeannot’s incriminating confession. \n\n13 * * * \n\n14 In sum, considered both in isolation and cumulatively, the \n\n15 properly admitted evidence of Orlando’s guilt leaves us with “grave \n\n16 doubt” about whether the trial court’s error substantially and \n\n\n\n\n 50\n\n \n\n\n\n\n 1 injuriously influenced the jury’s verdict. See Davis, 135 S. Ct. at 2198. \n\n 2 McGinn’s testimony of Jeannot’s incriminating statement was \n\n 3 essential in persuading the jury of Orlando’s guilt and meets the bar \n\n 4 set by the Brecht standard. Accordingly, the constitutional error in \n\n 5 this case was not harmless. \n\n 6 CONCLUSION \n\n 7 For the foregoing reasons, we REVERSE the district court’s \n\n 8 denial of Orlando’s petition, and REMAND the case to the district \n\n 9 court with instructions to issue a writ of habeas corpus to Orlando on \n\n10 the sixtieth calendar day after the issuance of our mandate unless the \n\n11 District Attorney of Nassau County has, by that time, taken concrete \n\n12 and substantial steps to expeditiously retry Orlando. The mandate \n\n13 shall issue forthwith. \n\n\n\n\n 51", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366538/", "author_raw": "DRONEY, Circuit Judge:"}, {"author": "1 SHEA, District Judge, dissenting", "type": "dissent", "text": "1 SHEA, District Judge, dissenting: \n\n\n 2 I respectfully dissent. Federal habeas relief is available under Section \n\n 3 2254 only to remedy “extreme malfunctions in the state criminal justice \n\n 4 systems” in “cases where there is no possibility fairminded jurists could \n\n 5 disagree that the state courtʹs decision conflicts with [the Supreme] Courtʹs \n\n 6 precedents.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011). The New \n\n 7 York court’s application of Tennessee v. Street, 471 U.S. 409 (1985), the \n\n 8 Supreme Court decision most pertinent to this case, does not satisfy that \n\n 9 demanding standard because it reflects a reasonable accommodation of the \n\n10 competing interests identified in that decision. The Street Court held that \n\n11 the Confrontation Clause’s “mission” is “to advance the accuracy of the \n\n12 truth‐determining process in criminal trials,” and that to fulfill that \n\n13 mission, trial judges must attend to both “assur[ing] the integrity of the \n\n14 trial’s truth‐seeking function and eliminat[ing] the risk of the jury’s \n\n15 improper use of evidence.” Id. at 415 (emphasis added). Here, the state \n\n16 trial judge reasonably applied the first of those two principles by admitting \n\n17 the detective’s account of Jeannot’s accusation for the proper, non‐hearsay \n\n18 purpose of allowing the State to counter the defendant’s explanation about \n\n\n 1 \n \n\n 1 why he changed his story. Excluding that evidence would have enhanced \n\n 2 the credibility of Orlando’s second version of events, which was the one \n\n 3 his lawyer urged the jury to adopt, and thus frustrated the trial’s truth‐\n\n 4 seeking function. The trial judge also reasonably applied the second \n\n 5 principle by twice giving a detailed limiting instruction that the jury was \n\n 6 not to consider Jeannot’s accusation for its truth and, indeed, not to \n\n 7 consider whether he had made it at all. While I acknowledge that this case \n\n 8 is harder than Street, I conclude that fairminded jurists could disagree on \n\n 9 whether the state court properly applied that decision and thus that the \n\n10 district court properly denied the writ. \n\n\n11 I \n\n\n12 The majority’s recounting of the record is thorough, but I offer two \n\n13 clarifications to explain my views. \n\n\n14 First, Orlando’s trial counsel did not object to all of Detective \n\n15 McGinn’s testimony about the interview with Jeannot. Indeed, he used a \n\n16 portion of it to bolster Orlando’s explanation that he changed his story and \n\n17 told the truth once his fear of Jeannot had lifted after he learned that \n\n18 Jeannot had confessed. The issue involved in this appeal first arose when \n\n 2 \n \n\n 1 the State sought a ruling in limine to admit Detective McGinn’s testimony \n\n 2 that “I confronted [Orlando], I told him that [Jeannot’s] giving it up and \n\n 3 he’s telling us he did the shooting and he’s telling us you made him.” T. \n\n 4 164. During the in limine proceeding, the prosecutor told the trial judge \n\n 5 that the purpose of this testimony would be “to establish the context in \n\n 6 which the defendant all of a sudden changes his initial story . . . .” Id. \n\n 7 Defense counsel then made his Confrontation Clause objection, pointing \n\n 8 out that there had been a Bruton severance “to protect the defendant not \n\n 9 being able to cross examine any statements that would be used against him \n\n10 in this case such as the codefendant’s Herva Jeannot . . . perhaps even six \n\n11 as a number of statements that Mr. Jeannot had made.” T. 165.1 Specifically \n\n12 addressing the prosecutor’s motion, he then stated as follows: \n\n\n13 “[I]f we’re talking perhaps about one of the last statements that Mr. \n14 Jeannot had made regarding . . . giving it up or giving up the entire \n15 thing, opposed to that Mr. Jeannot had shot Mr. Calabrese, \n16 obviously I have no opposition to that. However, it’s a matter of \n17 how much of that statement is going to be permitted . . . . But, I think \n18 in regard to what is being said and being [pared] down, I have no \n \n 1 While the record does not disclose the trial judge’s ruling regarding the Bruton \n severance, defense counsel’s reference to “a number of statements” by Jeannot \n suggests there was more to it than merely eliminating the “payment” statement \n from Orlando’s trial. It is thus not clear from the record that the “payment” \n statement “was the reason for the Bruton severance in the first place.” Maj. Op. \n at 28. \n 3 \n \n\n 1 opposition to the fact Mr. Jeannot had indicated that Mr. Jeannot \n 2 was present and Mr. Jeannot shot him. But I think anything in \n 3 addition to that, again, is prejudicial. It violates my ability and right \n 4 to cross‐examine the individual that is now accusing my client of \n 5 that, and I would move to preclude anything in addition to that first \n 6 portion . . . .” \n 7 T. 165–66. In other words, defense counsel did not object to the portion of \n\n 8 McGinn’s statement that Jeannot said he shot Calabrese but did object to \n\n 9 the portion that Jeannot said Orlando paid him to do it.2 That was a \n\n10 sensible trial strategy, because the former portion supported Orlando’s \n\n11 second version of events and his explanation that he lied initially out of \n\n12 fear of Jeannot and came clean once he learned that Jeannot had confessed. \n\n13 Defense counsel harped on this latter theme in both his opening statement \n\n14 and closing argument. T. 205 (“It’s not until Herva Jeannot tells the \n\n15 detective that Herva Jeannot himself had shot Mr. Calabrese, that Mark \n\n16 then felt at ease that now they’re not going to come after Mark.”); T. 851 \n\n17 (“And there is no question Mark met with Detective McHugh, and he lied \n\n18 about certain things to Detective McHugh. No question, not disputing that. \n\n19 And you heard from Detective McGinn, what happened, we will go over \n\n\n \n 2 I do not read defense counsel’s later, summary reference to his objection as \n changing his position on the lack of objection to the portion of McGinn’s \n statement that Jeannot said that he shot Calabrese. T. 591. \n 4 \n \n\n 1 that a little bit, before Mark finally says, now I feel safe. Now I can tell you \n\n 2 what happened. I don’t want to be the first one, that Herva Jeannot killed \n\n 3 Calabrese. I don’t want him coming after my family.”). \n\n\n 4 Second, the trial judge’s ruling admitted only the statements by \n\n 5 McGinn identified by the prosecutor in the pretrial hearing, i.e., that “I \n\n 6 confronted [Orlando], I told him that [Jeannot’s] giving it up and he’s \n\n 7 telling us he did the shooting and he’s telling us you made him.” T. 164–\n\n 8 67. The ruling did not permit McGinn to give the vouching testimony \n\n 9 stressed by the majority, i.e., that “I believe that Herva Jeannot was \n\n10 relaying some of the events that really took place that night.” T. 620. That \n\n11 testimony was problematic, but not primarily because it violated the \n\n12 Confrontation Clause; it was inadmissible on multiple grounds – lack of \n\n13 personal knowledge (McGinn was not in the room with Jeannot), opinion \n\n14 by a lay witness (“I believe . . . .”), and vouching for another’s statement \n\n15 (regardless of its content). Despite these obvious flaws, however, defense \n\n16 counsel did not object to it, move to strike it, seek a mistrial, or ask for an \n\n17 instruction that the jury disregard it – perhaps because it also vouched for \n\n18 the portion of Jeannot’s alleged statement that defense counsel would use \n\n\n 5 \n \n\n 1 to his client’s advantage – that Jeannot said he shot Calabrese. Nor did \n\n 2 Orlando raise McGinn’s vouching statement in the appeal of his \n\n 3 conviction, his habeas petition before the district court, or his appeal brief \n\n 4 in this Court. While it is still proper to consider it under Street – because it \n\n 5 goes to the risk that the statement “Orlando paid him to do it” would be \n\n 6 misused by the jury (which I discuss below) – it is important to note that \n\n 7 the trial judge’s pretrial ruling applying Street did not authorize McGinn’s \n\n 8 vouching statement.3 \n\n\n 9 II \n\n\n10 Orlando contends that the Appellate Division unreasonably applied \n\n11 Bruton and Street when it held that admitting the detective’s statement that \n\n12 “[Jeannot] said that he was the murderer but that Mark Orlando had paid \n\n13 him to do it” did not violate the Confrontation Clause.4 Whether that is so \n\n \n 3 As I explain below, when placed in context, McGinn’s other references to the \n “truth” and “truer versions” when testifying about Jeannot’s interview do not \n appear to have been attempts to vouch for Jeannot to the jury. \n 4 Orlando also argues that the Appellate Division’s ruling was an unreasonable \n\n application of Crawford. But Crawford is of limited guidance in addressing the \n factual situation here, except insofar as it reaffirms Street’s holding that \n admission of out‐of‐court statements for nonhearsay purposes does not violate \n the Confrontation Clause. Crawford, 541 U.S. at 59 n.9 (“The Clause also does not \n bar the use of testimonial statements for purposes other than establishing the \n truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414 (1985).”). \n 6 \n \n\n 1 boils down to two questions: (1) was there a proper non‐hearsay purpose \n\n 2 for the statement, which requires considering the degree to which \n\n 3 exclusion of the detective’s statement would have impeded the jury “in . . . \n\n 4 evaluating the truth of [Orlando’s explanation as to why he changed his \n\n 5 story] and . . . weighing the reliability of his [second and third statements \n\n 6 to the police]”; and (2) if so, could the statement nonetheless “have been \n\n 7 misused by the jury”? Street, 471 U.S. at 414. Street suggests that the second \n\n 8 question involves consideration of (1) the trial court’s limiting instructions; \n\n 9 (2) whether the prosecutor made proper use of the statement during the \n\n10 trial; and (3) whether there were “alternatives that would have both \n\n11 assured the integrity of the trial’s truth‐seeking function and eliminated \n\n12 the risk of the jury’s improper use of the evidence.” Id. at 415–16. There is \n\n13 at least a “possibility fairminded jurists could disagree” about whether the \n\n14 New York courts properly answered these questions. \n\n\n15 Proper Purpose \n\n\n16 The non‐hearsay purpose here was similar to the one that prevailed \n\n17 in Street: to shed light on the credibility of Orlando’s second statement to \n\n18 the police. See Street, 471 U.S. at 415 (“Had the prosecutor been denied the \n\n 7 \n \n\n 1 opportunity to present Peele’s confession in rebuttal so as to enable the \n\n 2 jury to make the relevant comparison, the jury would have been impeded \n\n 3 in its task of evaluating the truth of respondent’s testimony and \n\n 4 handicapped in weighing the reliability of his confession.”). Orlando \n\n 5 claimed that he had lied in his first statement out of fear of Jeannot, but \n\n 6 once told of Jeannot’s confession, his fear lifted and he gave a truthful \n\n 7 account in his second statement.5 The State would have had no answer to \n\n 8 the fear‐dissipation narrative had the trial judge sustained defense \n\n 9 counsel’s objection and excluded only the portion of McGinn’s statement \n\n10 in which he said Jeannot implicated Orlando in the murder. Orlando \n\n11 started hinting at his alleged fear of Jeannot as soon as McGinn told him \n\n12 that “Detective McHugh was over there talking to Herva [Jeannot] and he \n\n13 was probably giving us, you know, other facts that happened that night, \n\n14 the truth as to what happened that night.” T. 620. At that point, for the first \n\n15 time, Orlando said, “detective, you don’t understand,” a refrain he then \n\n16 repeated several times before telling McGinn that “he was afraid for his \n\n\n\n \n 5 As the majority notes, the second statement was followed by a substantially \n similar third, written statement. While there were differences between the two \n the prosecutor stressed in closing argument, they are not material to my dissent. \n 8 \n \n\n 1 family” and slept next to a shotgun. Id. at 623. According to McGinn’s \n\n 2 testimony, it was not until McGinn added “[Jeannot] stated he was the \n\n 3 murderer but that Mark Orlando paid him to do it” that Orlando finally \n\n 4 stated “okay, I will tell you the truth” and “then began to tell [McGinn] \n\n 5 another version of events that happened that night.” Id. at 624–25. \n\n\n 6 That sequence fit both the State’s account that Orlando changed his \n\n 7 tune only when told he was being accused and Orlando’s account that he \n\n 8 did so because Jeannot’s confession meant he was no longer a threat. But \n\n 9 without the piece of McGinn’s testimony that he told Orlando Jeannot was \n\n10 implicating him, Orlando’s explanation for his change of story would have \n\n11 been a good deal stronger and the overall credibility of his second \n\n12 statement would have been enhanced. And Orlando’s defense hinged on \n\n13 the credibility of that statement. In his closing argument, defense counsel \n\n14 focused on convincing the jury that Orlando’s second statement was \n\n15 truthful and that his first had been a lie born of his fear of Jeannot. T. 845 \n\n16 (“[E]verything that Mark Orlando had told Detective Cereghino is \n\n17 corroborated by the sixty or so exhibits introduced into evidence. \n\n18 Everything here supports what Mark had said.”); id. (“Herva . . . \n\n\n 9 \n \n\n 1 [t]hreatened to kill his wife if he said anything. . . . Here’s a vicious \n\n 2 murder. Why didn’t Mark go to the police. I think you see now the answer \n\n 3 to that. When I discussed how it was that he gave the first version to the \n\n 4 one detective, McHugh, and then to Detective McGinn, finally to Detective \n\n 5 Cereghino.”). That narrative would have been much more persuasive if \n\n 6 supported by the piece of McGinn’s testimony defense counsel wanted \n\n 7 before the jury – that McGinn told Orlando that Jeannot had confessed to \n\n 8 the shooting – and left unrebutted by the remaining piece defense counsel \n\n 9 wanted out – McGinn’s testimony that Jeannot was also implicating \n\n10 Orlando. Had the trial judge excluded the portion of McGinn’s testimony \n\n11 to which defense counsel objected, “the jury would have been impeded in \n\n12 its task of evaluating the truth of [the defendant’s second statement].” \n\n13 Street, 471 U.S. at 415. The Appellate Division’s affirmance of the trial \n\n14 judge’s ruling thus reflects a reasonable application of Street. \n\n\n15 To be sure, the trial judge could have excluded all testimony about \n\n16 confronting Orlando with the Jeannot interview – leaving both sides with \n\n17 no explanation about why Orlando changed his story – but no one asked \n\n18 him to do so. And no one asked the Appellate Division to decide whether \n\n\n 10 \n \n\n 1 the he should have done so sua sponte. As presented to the New York \n\n 2 courts, the issue was limited to whether McGinn could recount Jeannot’s \n\n 3 statement that Orlando had paid him to commit the murder. Orlando’s \n\n 4 trial counsel explicitly declined to object to the portion of Jeannot’s \n\n 5 statement in which he implicated himself. T. 165–166 (“I have no \n\n 6 opposition to the fact Mr. Jeannot had indicated that Mr. Jeannot was \n\n 7 present and Mr. Jeannot shot him.”). \n\n\n 8 The majority points out that Orlando did not take the stand at his \n\n 9 trial. Thus, unlike in Street, the State was not forced to rebut a defendant’s \n\n10 testimony. But the Court’s opinion in Street does not suggest that its \n\n11 sanction of non‐hearsay use of an accomplice’s statement turned on the \n\n12 defendant’s election to testify in that case. Nor does it suggest that the \n\n13 government may use such a statement to attack the credibility of a \n\n14 defendant’s statements only when the defendant offers them.6 It was not \n\n\n\n \n 6 The two concurring justices in Street did make that suggestion, but their views \n did not carry the day. See 471 U.S. at 417 (“With respect to the State’s need to \n admit the confession for rebuttal purposes, it is important to note that \n respondent created the need to admit the statement by pressing the defense that \n his confession was a coerced imitation of [his co‐defendant’s] out‐of‐court \n confession.”) (Brennan, J., concurring); see also Furr, 440 F.3d at 39 (“As the \n [Street] Court issued a majority decision endorsed by six justices, however, and \n 11 \n \n\n 1 unreasonable for the Appellate Division to read Street as allowing non‐\n\n 2 hearsay use of an accomplice’s statement to attack the credibility of, or \n\n 3 provide context for, a defendant’s statements offered in the government’s \n\n 4 case in chief. Indeed, several federal courts of appeal have interpreted \n\n 5 Street the same way. See, e.g., Lee v. McCaughtry, 892 F.2d 1318, 1325 (7th \n\n 6 Cir. 1990) (reversing order granting habeas relief where state introduced \n\n 7 tape of prosecutor’s recounting of accomplice’s statement to “place into \n\n 8 context for the jury the metamorphosis of [the defendant’s] accounts of \n\n 9 events that took place at the murder scene”: “Since the prosecutor’s \n\n10 account of [the accomplice’s] statements were offered not for the truth of \n\n11 those statements, but to explain the context of the defendant’s change in \n\n12 his story, they are not hearsay, and, absent complicating circumstances, \n\n13 would not have violated the confrontation clause.” (citing Street)); Furr, 440 \n\n14 F.3d at 36–41 (state court’s application of Street “readily passes muster” \n\n15 under Section 2254 where prosecutor introduced accomplice’s statement \n\n16 regarding gun and defendant’s threatening letter to accomplice in its case \n\n17 in chief to support witness intimidation charge); Gover v. Perry, 698 F.3d \n\n \n not merely a plurality opinion, the concurrence cannot be considered a viable \n Court holding.”). \n 12 \n \n\n 1 295, 307 (6th Cir. 2012) (“Given the fact that there was precedent at the \n\n 2 time that providing background to a police investigation through out‐of‐\n\n 3 court statements was a permissible nonhearsay purpose, we must \n\n 4 conclude that it was not unreasonable. It is certainly within the large scope \n\n 5 of conclusions ‘fairminded jurists’ could reach, even if others disagreed.”). \n\n\n 6 Risk of Misuse by Jury \n\n\n 7 While Bruton held that courts cannot expect juries to follow limiting \n\n 8 instructions when, in a joint trial, they hear a co‐defendant’s statement \n\n 9 implicating a defendant, the Supreme Court has treated that holding as a \n\n10 “narrow exception” to the “almost invariable assumption of the law that \n\n11 jurors follow their instructions.” Richardson v. Marsh, 481 U.S. 200, 207 \n\n12 (1987). Further, the exception applies “when the facially incriminating \n\n13 confession of a nontestifying codefendant is introduced at their joint trial.” \n\n14 Id. (emphasis added). Street made the same point more generally, stating \n\n15 that “[t]he assumption that jurors are able to follow the court’s instructions \n\n16 fully applies when rights guaranteed by the Confrontation Clause are at \n\n17 issue.” Street, 471 U.S. at 415 n.6. \n\n\n\n\n 13 \n \n\n 1 Here, the “invariable assumption” that jurors follow limiting \n\n 2 instructions applies, because this case is much closer to Street than to \n\n 3 Bruton. First, it was not a joint trial; indeed, like the Court in Street, the \n\n 4 New York Appellate Division upheld the admission of an accomplice’s \n\n 5 statement against the defendant after the two had been severed for trial \n\n 6 under Bruton. Second, again as in Street, the statement was not admitted \n\n 7 for its truth and the jury was instructed not to consider it for that purpose. \n\n 8 In Bruton, by contrast, the issue was whether, in a joint trial where a co‐\n\n 9 defendant’s statement implicating both Bruton and the co‐defendant was \n\n10 admitted, the jury could follow an instruction to consider the co‐\n\n11 defendant’s statement for its truth against the co‐defendant while putting \n\n12 the same statement out of its mind entirely when deciding on Bruton’s \n\n13 guilt. Bruton, 391 U.S. at 131 (“In joint trials, however, when the admissible \n\n14 confession of one defendant inculpates another defendant, the confession \n\n15 is never deleted from the case and the jury is expected to perform the \n\n16 overwhelming task of considering it in determining the guilt or innocence \n\n17 of the declarant and then of ignoring it in determining the guilt or \n\n18 innocence of any codefendants of the declarant. A jury cannot segregate \n\n\n\n 14 \n \n\n 1 evidence into separate intellectual boxes.” (internal quotation marks \n\n 2 omitted)). The Appellate Division thus properly cited Street as the most \n\n 3 pertinent Supreme Court precedent here. People v. Orlando, 61 A.D.3d 1001, \n\n 4 1002 (N.Y. App. Div., Second Dep’t. 2009). \n\n\n 5 To be sure, applying Street properly involves more than just \n\n 6 admitting any statement by an accomplice and instructing the jury not to \n\n 7 consider it for its truth. Specifically, the Court’s analysis in Street suggests \n\n 8 that, in deciding whether to uphold the admission of an accomplice’s out‐\n\n 9 of‐court statement for a non‐hearsay purpose under the Confrontation \n\n10 Clause, courts should consider (1) the adequacy of the instructions; (2) the \n\n11 manner in which the out‐of‐court statement was used at trial, 471 U.S. at \n\n12 416; and (3) whether there were “alternatives that would have both \n\n13 assured the integrity of the trial’s truth‐seeking function and eliminated \n\n14 the risk of the jury’s improper use of evidence,” id. at 415. I consider these \n\n15 factors below.7 \n\n\n \n 7 In its brief ruling, the New York Appellate Division did not canvass these \n factors, but it did cite Street and point out the non‐hearsay purpose of the \n statement and the trial court’s limiting instructions. People v. Orlando, 61 A.D.3d \n 1001, 1002 (App. Div. 2d Dep’t 2009). In Furr v. Brady, the First Circuit rejected a \n Section 2254 petition asserting that the state court had unreasonably applied \n 15 \n \n\n 1 1. Limiting Instructions \n\n\n 2 Both when McGinn’s testimony was admitted and in the final \n\n 3 charge, the trial judge instructed the jury as follows: \n\n\n 4 Ladies and gentlemen, you have been permitted to hear \n 5 testimony about remarks made to the defendant by Detective \n 6 McGinn about statements allegedly made by Herva Jeannot. \n 7 You’re to consider this testimony only when considering the \n 8 circumstances under which the defendant himself may have \n 9 made statements and for no other purposes. You are to \n10 completely disregard any statement allegedly made by Herva \n11 Jeannot when considering evidence against the defendant. \n12 Any statement allegedly made by Herva Jeannot is not \n13 evidence against the defendant and may never be considered \n14 as evidence against the defendant. You are not to concern \n15 yourself with whether Herva Jeannot did or did not make any \n\n \n Street because it had failed expressly to consider these factors. Furr v. Brady, 440 \n F.3d 34, 39–40 (1st Cir. 2006)(“[T]he [Street] Court did not purport to prescribe a \n mandatory checklist of factors to be considered in every case. Rather, it noted, \n absent other circumstances, it is sufficient that the codefendant statement is \n nonhearsay – viz., not admitted for the truth of the matter asserted, and provided \n the court gives a limiting instruction to that effect. . . . Thus the determination as \n whether the general rule of admissibility in Street applies is assessed case by case, \n based upon the presence of whatever special circumstances would create an \n unreasonable risk that the jury disregarded their instructions.”). In any event, the \n brevity of the Appellate Division’s consideration of the issue does not diminish \n the deference we owe its application of Street under 28 U.S.C. Sec. 2254. \n Harrington, 562 U.S. at 98 (“Where a state court’s decision is unaccompanied by \n an explanation, the habeas petitioner’s burden still must be met by showing that \n there was no reasonable basis for the state court to deny relief. This is so whether \n or not the state court reveals which of the elements in a multipart claim it found \n insufficient, for Section 2254(d) applies when a ‘claim,’ not a component of one, \n has been adjudicated.”). \n 16 \n \n\n 1 statements to the police, and if he did, what those statements \n 2 may have been or whether or not they were true. \n 3 I direct you in this regard and I will direct you again in \n 4 my closing instructions to you. \n 5 T. 624; id. at 930–31.8 \n\n\n 6 I do not agree that this instruction was “decidedly unclear.” Maj. \n\n 7 Op. at n.16. On its face, it directs the jurors to disregard for any purpose \n\n 8 any statement by Jeannot himself, but lets them consider how Orlando \n\n 9 reacted when McGinn told him that Jeannot had made a statement \n\n10 implicating him. I do not to see how the instruction could have been made \n\n11 much clearer, and, apparently, neither did Orlando’s counsel. His trial \n\n12 counsel did not object to the instruction, and his appellate counsel did not \n\n13 challenge it before the Appellate division. T. 136. Federal courts of appeal \n\n14 have found vaguer, less detailed instructions to be reasonable applications \n\n15 of Street. See Furr, 440 F.3d at 39 n.3 (holding that the state trial court’s \n\n16 limiting instruction was adequate under Street even though it had not \n\n17 explicitly instructed the jury that it could not consider the “truth” of the \n\n18 statement); Lee, 892 F.2d at 1321, 1325–26 (upholding the denial of a § 2254 \n\n \n 8 The first time the trial judge gave this instruction, the transcript does not reflect \n that he said “and” before “if he did, what those statements may have been or \n whether or not they were true.” \n 17 \n \n\n 1 petition where the trial court instructed the jury once – when the evidence \n\n 2 was admitted – that “[i]t’s a sequence of events. That is one thing that \n\n 3 shows why hearsay may be offered just to allow us to see what happened \n\n 4 next . . . [Y]ou are not to take as substantive evidence the statement of Mr. \n\n 5 Williams, because it is not here in Court. But it is offered to show you what \n\n 6 happened next; okay? And not to take it as substantive evidence or as \n\n 7 evidence that it actually happened.”). Cf. Adamson v. Cathel, 633 F.3d 248, \n\n 8 258–259 (3d Cir. 2011) (granting a Section 2254 petition where an \n\n 9 accomplice’s out‐of‐court statements were offered against the defendant \n\n10 for a non‐hearsay purpose but the state court failed to give any limiting \n\n11 instruction). \n\n\n12 The majority contends that McGinn’s vouching statement made the \n\n13 instruction unclear, but as noted, that statement was not a product of the \n\n14 trial court’s ruling and there was no objection to it or request for an \n\n15 instruction that the jury ignore it. Even so, the trial judge’s repeated \n\n16 admonition that the jury was not to consider whether Jeannot made any \n\n17 statement or whether it was true addressed McGinn’s improper vouching \n\n18 for Jeannot, which was limited to a single sentence, i.e., “I believe that \n\n\n 18 \n \n\n 1 Herva Jeannot was relaying some of the events that really took place that \n\n 2 night.” T. 620. McGinn’s other statements about “the truth” and “truer \n\n 3 versions” when referring to Jeannot were directed at Orlando, not the jury, \n\n 4 and when viewed in context and in the light of the limiting instruction, \n\n 5 were part of McGinn’s attempt to induce Orlando to provide more detail \n\n 6 about the murder. T. 620 (“I went back in and I told Mr. Orlando that \n\n 7 Detective McHugh was over there talking to Herva [Jeannot] and he was \n\n 8 probably giving us, you know, other facts that happened that night, the \n\n 9 truth as to what happened that night. Now would be the time for Mark \n\n10 Orlando to tell us what was going on.”); T. 621 (“I went back into the \n\n11 room. . . . Again, I explained to Mr. Orlando that Herva Jeannot was, in \n\n12 fact, giving up the, what we felt were truer versions of the events of Bobby \n\n13 Calabrese’s murder. . . . I told him that Herva Jeannot had given up where \n\n14 the gun was and that the defendant should at this point, if he wants his \n\n15 version of the story told tell us the truth at this point.”). \n\n\n16 Nor do I agree that the prosecutor undermined the trial judge’s \n\n17 limiting instructions in his closing argument. Maj. Op. at 31. The \n\n18 prosecutor’s only reference to McGinn’s testimony about Jeannot’s \n\n\n 19 \n \n\n 1 statement was followed immediately by a comment about why Orlando \n\n 2 changed his story – the very non‐hearsay use for which the testimony was \n\n 3 admitted: “And Detective McGinn finally says, look, Herva’s giving it up. \n\n 4 Herva’s telling us everything. So, come on. He’s telling us he did the \n\n 5 shooting and you paid him. And the defendant realizes the time is now. I don’t \n\n 6 care what story I had together at all. I am telling the story and he la[t]ches \n\n 7 onto it and he can’t get it straight.” T. 895 (emphasis added.). This was \n\n 8 consistent with the trial judge’s instruction that the jury was to “consider \n\n 9 [McGinn’s recounting of Jeannot’s] statement only when considering the \n\n10 circumstances under which the defendant himself may have made \n\n11 statements and for no other purpose.” T. 930. \n\n\n12 2. Use of the Statement at Trial \n\n\n13 While he made only one reference to Jeannot’s reported statement in \n\n14 his closing argument, the prosecutor made multiple references to \n\n15 Orlando’s paying Jeannot, and I agree with the majority that the evidence \n\n16 supporting those references was weak – the presence of similar hundred‐\n\n17 dollar bills in both Orlando’s and Jeannot’s homes. That circumstance \n\n18 makes this case harder than Street, because it raises the possibility that the \n\n 20 \n \n\n 1 jury might have, despite the judge’s clear instructions, turned back to \n\n 2 Jeannot’s reported accusation and considered it for its truth to find more \n\n 3 support for the prosecutor’s references to payment during closing \n\n 4 argument. Even clear jury instructions can be ineffective in some \n\n 5 circumstances, as Bruton and Street both teach. \n\n\n 6 As the majority notes, however, the state did not have to prove that \n\n 7 Orlando paid Jeannot to kill Calabrese. What it had to prove was that \n\n 8 Orlando aided and abetted the killing, and payment was not an element of \n\n 9 that crime. In addition, there was evidence other than payment from \n\n10 which the jury could have found aiding and abetting – Orlando’s soliciting \n\n11 Calabrese to meet in an isolated area, driving Jeannot to and from the \n\n12 scene, and stopping his car to enable Jeannot to take a final shot at \n\n13 Calabrese and discard the gun and ammunition, among others. \n\n14 Determining whether Orlando paid Jeannot was not a necessary part of the \n\n15 jury’s task. \n\n\n16 Further, the prosecutor’s references to payment in closing argument \n\n17 were brief, and his central theme was to emphasize the incriminating parts \n\n18 of Orlando’s second statement together with the implausibility of the part \n\n 21 \n \n\n 1 in which he cast himself as a surprised bystander at the murder scene \n\n 2 rather than an accomplice. E.g., T. 871 (“You don’t think Herva Jeannot \n\n 3 needed an accomplice, do you. Why would Jeannot need an accomplice. \n\n 4 Why would Herva Jeannot need someone to get him in and out of that \n\n 5 unfamiliar area. Why would Herva Jeannot need someone to lure Bobby \n\n 6 into that desolate corner of Long Beach with the promise of a $17,000 \n\n 7 payment. Why would Herva Jeannot need someone to distract Bobby. . . \n\n 8 .”); id. at 883–85 (“[A]sk yourselves, what would an innocent bystander in \n\n 9 that situation have done. . . . Your common sense tells you that an innocent \n\n10 bystander would have been in shock. . . . How about our defendant. . . . \n\n11 He’s just seen Herva gun down Bobby. . . . Herva says let’s go and what \n\n12 does he do? He climbs into the Verona. . . . The defendant starts to drive \n\n13 around Bobby’s dying body. The defendant tells Herva he notices his feet \n\n14 was [sic] still moving, there was a little life left in him. . . . So I stopped. \n\n15 Herva got out, Herva went over to the body and tried to shoot him a \n\n16 couple more times, but the gun wouldn’t go off. So, Herva got back in. I \n\n17 drove him away. Is that the behavior of an innocent bystander in shock \n\n18 over what he’s just seen?”); id. at 888 (“Now we’re pulling up outside [a \n\n\n\n 22 \n \n\n 1 friend’s] house and the defendant gets out of the car and Herva stays in \n\n 2 the car. . . . And you have proof beyond any reasonable doubt that the \n\n 3 defendant was right in the middle of it. . . . Do you think if the defendant \n\n 4 were really an innocent bystander, . . . who had just seen Herva execute \n\n 5 Bobby on the street, that Herva would have let the defendant go into the \n\n 6 [friend’s] house on his own. . . .”). \n\n\n 7 Finally, while I cannot say that there was no risk of juror misuse of \n\n 8 Jeannot’s reported statement in light of the weaknesses in the State’s \n\n 9 evidence of payment, Street suggests that the existence of such a risk is not \n\n10 dispositive. Rather, the risk of misuse must be weighed against the risk of \n\n11 excluding critical evidence from the jury’s consideration. Street, 471 U.S. at \n\n12 415 (“[T]here were no alternatives that would have both assured the \n\n13 integrity of the trial’s truth‐seeking function and eliminated the risk of the \n\n14 jury’s improper use of evidence.”).9 Here, the Appellate Division weighed \n\n \n 9 As for “alternatives” to admitting the detective’s statement in full, limiting the \n statement to “Jeannot said he was the murderer” would not have “assured the \n integrity of the trial’s truth‐seeking function.” 471 U.S. at 415. As discussed \n above, this redaction, which defense counsel sought, instead would have \n artificially enhanced the credibility of Orlando’s second statement by supporting \n his account that he gave it because Jeannot’s own confession had removed his \n fear that Jeannot would harm him and his wife if he told the truth. \n\n 23 \n \n\n 1 the risk of misuse against the need to admit the detective’s testimony \n\n 2 about confronting Orlando with the accomplice’s reported statement to \n\n 3 enable the jury to consider all the facts bearing on the critical issue of the \n\n 4 credibility of Orlando’s second statement. It also factored into the balance \n\n 5 the trial court’s instruction directing the jury to confine its assessment of \n\n 6 that evidence to the nonhearsay purpose for which it was admitted. Even \n\n 7 if the Appellate Division’s ruling ultimately struck the balance incorrectly, \n\n 8 it reflected an application of Street about which “fairminded jurists could \n\n 9 disagree.” Harrington, 562 U.S. at 101; id. at 101–02 (“For purposes of Sec. \n\n10 2254(d)(1), an unreasonable application of federal law is different from an \n\n11 incorrect application of federal law. . . . It bears repeating that even a \n\n12 strong case for relief does not mean the state court’s contrary conclusion \n\n13 was unreasonable.” (internal quotation marks omitted)). \n\n\n14 For these reasons, I would affirm the judgment of the district court \n\n15 denying the writ. \n\n\n\n\n 24", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366538/", "author_raw": "1 SHEA, District Judge, dissenting"}]} | JACOBS | DRONEY | SHEA | 1 | {"JACOBS": ", Circuit", "DRONEY": ", Circuit", "SHEA": ", District"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589285/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Orlando v. Nassau Cty. Dist. Atty's Off.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-11\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2390 \n Orlando v. Nassau Cty. Dist. Atty’s Off. \n\n\n\n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4 \n 5 \n 6 August Term, 2017 \n 7 No. 17‐2390 \n 8 \n 9 MARK ORLANDO, \n10 Petitioner‐Appellant, \n11 \n12 v. \n13 \n14 NASSAU COUNTY DISTRICT ATTORNEY’S OFFICE, \n15 Respondent‐Appellee.1 2 \n16 \n17 \n18 \n19 \n20 \n\n 1 The Clerk of Court is directed to amend the caption as set forth above. \n\n 2\n The Nassau County District Attorney’s Office has proceeded as respondent in \n this case, without objection. However, “§ 2254 petitioners challenging present \n physical custody [should] name either the warden or the chief state penal officer \n as a respondent.” Rumsfeld v. Padilla, 542 U.S. 426, 450 n.18 (2004) (emphasis \n removed) (citing Rule 2(a) of the Rules Governing Section 2254 Cases in the United \n States District Courts; Advisory Committeeʹs Note on Rule 2(a), 28 U.S.C., pp. 469‐\n 470 (adopted in 1976) (stating that this is the rule in the “usual case”)). As such, \n the district court is directed on remand (and prior to issuing the writ) to substitute \n as respondent the warden of Orlando’s place of incarceration. \n\n \n\n\n\n\n 1 \n 2 \n 3 Appeal from the United States District Court \n 4 for the Eastern District of New York. \n 5 No. 11‐cv‐3992 — Edward R. Korman, Judge. \n 6 \n 7 \n 8 ARGUED: MAY 30, 2018 \n 9 DECIDED: FEBRUARY 11, 2019 \n10 \n11 Before: JACOBS and DRONEY, Circuit Judges, and SHEA, District Judge.* \n12 \n13 \n14 Appeal from a judgment of the United States District Court for \n15 the Eastern District of New York (Korman, J.) denying Petitioner‐\n16 Appellant Mark Orlando’s petition for a writ of habeas corpus \n17 pursuant to 28 U.S.C. § 2254. Orlando was convicted of murder in the \n18 second degree in the Supreme Court of New York, Nassau County. \n19 During the homicide investigation, police detectives separately \n20 interrogated Orlando and his alleged accomplice. The latter \n21 confessed that he had shot the victim, but that Orlando had hired him \n22 to commit the murder. At Orlando’s trial, a detective was permitted \n23 to testify that the accomplice had stated that Orlando paid him to \n24 commit the murder. The accomplice, who was tried separately, did \n25 not testify at Orlando’s trial. Orlando contends that notwithstanding \n26 a limiting instruction by the trial court, the detective’s testimony \n27 violated the Confrontation Clause of the Sixth Amendment and that \n28 the state court’s ruling to the contrary constituted an objectively \n29 unreasonable application of clearly established federal law. We \n\n *\n Judge Michael P. Shea, United States District Court for the District of Connecticut, \n sitting by designation. \n\n\n\n 2\n\n \n\n\n\n\n 1 agree. Accordingly, we REVERSE the district court’s denial of \n 2 Orlando’s petition, and REMAND the cause to the district court with \n 3 instructions to grant the petition for a writ of habeas corpus. \n 4 \n 5 Judge SHEA dissents in a separate opinion. \n 6 \n 7 \n 8 JANE SIMKIN SMITH, Millbrook, NY, for \n 9 Petitioner‐Appellant. \n10 \n11 SARAH S. RABINOWITZ, ASSISTANT \n12 DISTRICT ATTORNEY (Tammy J. \n13 Smiley, Assistant District Attorney, on \n14 the brief), for Madeline Singas, Nassau \n15 County District Attorney, Mineola, \n16 New York, for Respondent‐Appellee. \n17 DRONEY, Circuit Judge: \n\n18 On Friday night, December 3, 2004, at approximately 8:45 p.m., \n\n19 in response to a 911 call, police officers from the Long Beach, New \n\n20 York, police department found the body of Bobby Calabrese. 3 \n\n21 Calabrese was lying face down next to his Infiniti automobile, which \n\n22 was still running. He had been shot in the back of his head at close \n\n\n\n\n 3 Long Beach is in Nassau County, New York, on Long Island. \n\n\n\n 3\n\n \n\n\n\n\n 1 range three times with a .44 caliber revolver. Calabrese had been a \n\n 2 “runner” for an illegal sports betting organization. \n\n 3 The following Thursday, Nassau County police detectives \n\n 4 interviewed Mark Orlando and Herva Jeannot, who were together the \n\n 5 night of Calabrese’s homicide. The detectives believed that Orlando \n\n 6 and Jeannot had been with Calabrese that night. Orlando and Jeannot \n\n 7 were questioned in separate rooms at the police station. Jeannot \n\n 8 confessed to shooting Calabrese, stating that Orlando hired Jeannot \n\n 9 to murder Calabrese to avoid paying a gambling debt to Calabrese. \n\n10 During his questioning, Orlando gave two different statements to the \n\n11 police but denied being involved in the murder. \n\n12 Orlando and Jeannot were charged with murder for their roles \n\n13 in Calabrese’s death and, in August 2005, a jury in the New York \n\n14 Supreme Court for Nassau County convicted Mark Orlando of \n\n15 murder in the second degree. The trial court had severed Orlando \n\n16 and Jeannot’s trials to avoid a Sixth Amendment Confrontation \n\n\n\n\n 4\n\n \n\n\n\n\n 1 Clause violation that could have arisen from Orlando’s jury hearing \n\n 2 Jeannot’s confession if Jeannot did not testify and thus could not be \n\n 3 cross‐examined about it.4 Severing the trials, however, did not avoid \n\n 4 violating Orlando’s right to confront the witnesses against him, as the \n\n 5 trial court allowed the jury to learn of Jeannot’s confession \n\n 6 implicating Orlando at Orlando’s trial and Jeannot did not testify at \n\n 7 Orlando’s trial. \n\n 8 ORLANDO’S TRIAL \n\n 9 I. Evidence Before the Jury of Jeannot’s Statement \n\n10 The state’s theory at trial was that Orlando paid Jeannot to \n\n11 murder Calabrese to extinguish a $17,000 gambling debt Orlando \n\n12 owed to Calabrese and that Orlando assisted Jeannot in the murder. \n\n13 The prosecution argued that Orlando lured Calabrese to the remote \n\n\n\n\n 4 Although the record on appeal does not reflect the trial court’s decision to sever \n the trials, both Orlando and the state describe the trial court as having \n (appropriately) severed Orlando and Jeannot’s trials “pursuant to” Bruton v. \n United States, 391 U.S. 123, 124 (1968). Pet. Br. at 2; Respondent’s Br. at 39. \n\n\n\n 5\n\n \n\n\n\n\n 1 location near Long Beach5 on the pretext of meeting to pay the $17,000 \n\n 2 debt, but that Orlando had previously agreed to pay Jeannot to shoot \n\n 3 Calabrese when Orlando met up with Calabrese. Orlando did not \n\n 4 dispute at trial that he was present for the murder, but contended that \n\n 5 he had intended merely to pay Calabrese; he did not expect Jeannot \n\n 6 (who was a friend of Orlando’s and a passenger in the car Orlando \n\n 7 drove that night) to shoot Calabrese and then take the gambling \n\n 8 money for himself. \n\n 9 During his police interrogation, Orlando gave two statements \n\n10 to Nassau County Police Detectives. Detectives McHugh and \n\n11 McGinn jointly interviewed Orlando when he gave his first statement, \n\n12 and Detective McHugh testified to this statement at Orlando’s trial. \n\n13 According to McHugh, Orlando first stated that he and Jeannot were \n\n14 good friends and coworkers at Professional Credit Services, a Long \n\n\n\n 5\n Although officers from the Long Beach police department responded to the \n report of the homicide, the homicide occurred in Island Park, which is a town \n adjacent to Long Beach. \n\n\n\n 6\n\n \n\n\n\n\n 1 Island debt collection agency. Orlando regularly gambled on sports. \n\n 2 About one month before the murder, another coworker introduced \n\n 3 Orlando to Calabrese. Orlando began to place bets through Calabrese \n\n 4 and soon won $28,465. \n\n 5 Orlando’s winning streak with Calabrese ended, and Orlando \n\n 6 lost $17,800 over the course of two weeks. At that point, Orlando \n\n 7 stopped betting with Calabrese. But Orlando still owed Calabrese \n\n 8 $17,000, and he arranged to pay Calabrese on December 3. \n\n 9 In that first statement to the Nassau County detectives, Orlando \n\n10 indicated that he and Jeannot went together in Orlando’s wife’s car to \n\n11 pay Calabrese, did so, and otherwise had an uneventful evening. \n\n12 After Orlando paid Calabrese the $17,000, he and Jeannot made \n\n13 several stops: at a Suzuki car dealership to pick up a check, at an ATM, \n\n14 and at Orlando’s friend’s house to look at some new construction. \n\n15 Orlando then dropped off Jeannot at Jeannot’s home, around 10:30 \n\n16 p.m. \n\n\n\n\n 7\n\n \n\n\n\n\n 1 After Detective McHugh finished testifying, Detective McGinn \n\n 2 took the stand and confirmed much of the substance of Orlando’s first \n\n 3 statement. According to McGinn, after Orlando signed a written \n\n 4 statement summarizing that version of the night’s events, Detectives \n\n 5 McGinn and McHugh left the interview room. McHugh went to \n\n 6 speak with Jeannot. Approximately three hours after leaving \n\n 7 Orlando’s interview room, McGinn returned to speak further with \n\n 8 Orlando. \n\n 9 Before Detective McGinn had begun testifying at Orlando’s \n\n10 trial (and out of the presence of the jury), counsel for Orlando had \n\n11 objected, on hearsay and Confrontation Clause grounds, to the \n\n12 admission of McGinn’s anticipated testimony recounting Jeannot’s \n\n13 statement as to Orlando’s involvement in the murder. The trial court \n\n14 denied the objection, ruling that “this information that the People are \n\n15 intending to offer in their direct case is not being offered for the truth \n\n16 of the contents of the statement but rather to give a clear picture to the \n\n\n\n\n 8\n\n \n\n\n\n\n 1 jury [of] what was going on during the interrogation of [Orlando].” \n\n 2 T. 166–67. \n\n 3 After Orlando’s objection was denied, the prosecution asked \n\n 4 Detective McGinn about “the circumstances under which [McGinn] \n\n 5 resumed speaking with” Orlando. T. 620.6 McGinn testified that he \n\n 6 had learned from Detective McHugh that Jeannot was making \n\n 7 inculpatory statements about the murder. “I knew Detective \n\n 8 McHugh was in talking to Mr. Herva Jeannot,” McGinn testified. Id. \n\n 9 “I believe,” he told the jury, “that Herva Jeannot was relaying some \n\n10 of the events that really took place that night [of the murder].” Id. \n\n11 McGinn then testified that he re‐entered Orlando’s interview \n\n12 room. Id. “I went back in and I told Mr. Orlando that Detective \n\n13 McHugh was over there talking to Herva [Jeannot] and he was \n\n14 probably giving us . . . other facts that happened that night, the truth \n\n\n\n\n 6 Citations to the trial transcript are abbreviated “T. __” throughout this opinion. \n\n\n\n 9\n\n \n\n\n\n\n 1 as to what happened that night.” Id. “Now, would be the time . . . to \n\n 2 tell us what was going on.” Id. \n\n 3 According to McGinn’s testimony, Orlando responded, “[y]ou \n\n 4 don’t understand,” and McGinn left the interview room. T. 620. \n\n 5 McGinn testified that he returned a few minutes later. According to \n\n 6 McGinn, “[a]gain, I explained to Mr. Orlando that Herva Jeannot was, \n\n 7 in fact, giving up . . . what we felt were truer versions of the events of \n\n 8 Bobby Calabrese’s murder. That we had a videotape of the spot the \n\n 9 meeting took place. That the meeting did not take place where \n\n10 [Orlando] originally told us it had taken place. I told [Orlando] that \n\n11 Herva Jeannot had given up where the gun was and that the \n\n12 defendant should . . .[,] if he wants his version of the story told[,] . . . \n\n13 tell us the truth at this point.” T. 621. \n\n14 Orlando initially responded, again, “you don’t understand,” \n\n15 but eventually stated, without elaboration, that he was afraid (of \n\n16 Jeannot) for his family. T. 621–23. McGinn testified that he again left \n\n\n\n\n 10\n\n \n\n\n\n\n 1 the interview room and that he came back around an hour later. He \n\n 2 then testified, over the renewed objection of Orlando’s attorney, to the \n\n 3 following: “I told [Orlando] . . . that Herva Jeannot was, in fact, talking \n\n 4 to the other detectives. [Jeannot] had given a statement and that he \n\n 5 had implicated himself in the murder. [Jeannot] said that he was the \n\n 6 murderer, but that Mark Orlando had paid him to do it.” T. 623–24. \n\n 7 At this point, the trial court gave the jury a limiting instruction. \n\n 8 The trial court stated, “Ladies and gentlemen, you have been \n\n 9 permitted to hear testimony about remarks made to the defendant by \n\n10 Detective McGinn about statements allegedly made by Herva \n\n11 Jeannot. You’re to consider this testimony only when considering the \n\n12 circumstances under which the defendant himself may have made \n\n13 statements and for no other purposes.” T. 624. \n\n14 The trial court then instructed the jury “to completely disregard \n\n15 any statement allegedly made by Herva Jeannot when considering \n\n16 evidence against the defendant. . . . You are not to concern yourself \n\n\n\n\n 11\n\n \n\n\n\n\n 1 with whether Herva Jeannot did or did not make any statements to \n\n 2 the police, if he did, what those statement[s] may have been or \n\n 3 whether or not they were true.”7 Id. \n\n 4 McGinn then resumed testifying. He testified that, after \n\n 5 learning of Jeannot’s statement implicating Orlando in the murder, \n\n 6 Orlando changed his account of the evening’s events. Orlando stated \n\n 7 that when he and Jeannot met Calabrese that night, Orlando paid \n\n 8 Calabrese and then Jeannot unexpectedly shot Calabrese, taking the \n\n 9 cash.8 T. 676–82. According to Orlando, he and Jeannot then drove \n\n10 away, and Jeannot threatened to harm Orlando’s (pregnant) wife if \n\n\n\n\n 7\n During its final charge to the jury, the trial court gave substantially the same \n limiting instruction as to McGinn’s testimony regarding Jeannot’s statement as it \n had given earlier in the trial. \n\n 8 Orlando first relayed this second version of events to McGinn. Then, McGinn left \n the room, and Nassau Country Detective Cerighino, who had not been present for \n the questioning of Orlando, came into the room. Cerighino reduced Orlando’s \n second account to writing. Cerighino wrote the statement based upon what \n Orlando told him, and Orlando signed it. The written statement is substantially \n similar to McGinn’s account at trial of the second version of events that Orlando \n gave to McGinn. \n\n\n\n 12\n\n \n\n\n\n\n 1 Orlando were to tell anyone about the homicide. T. 682. Jeannot told \n\n 2 Orlando that Calabrese was not the first person Jeannot had killed \n\n 3 and that Calabrese would not be the last. Id. As a result, according to \n\n 4 Orlando, he then made the stops at the car dealership and elsewhere \n\n 5 because he wanted people and cameras to observe that Jeannot was \n\n 6 with him. In addition, at some point, Jeannot told Orlando to stop on \n\n 7 a bridge, and Jeannot then threw the gun he used to kill Calabrese \n\n 8 into the water. \n\n 9 II. The Prosecution’s Summation \n\n10 The prosecution argued in its summation to the jury that \n\n11 Orlando had paid Jeannot to murder Calabrese. The prosecution also \n\n12 specifically called to the jury’s attention that “Detective McGinn \n\n13 leaves [Orlando’s interrogation room], comes back a little later, . . . \n\n14 [and] Detective McGinn finally says, look, [Jeannot’s] giving it up. \n\n15 [Jeannot’s] telling us everything. . . . He’s telling us he did the \n\n16 shooting and you paid him.” T. 894–95. \n\n\n\n\n 13\n\n \n\n\n\n\n 1 Apart from Jeannot’s statement, there was little evidence to \n\n 2 support the state’s theory. The prosecution showed that, after the \n\n 3 murder, investigators found in Jeannot’s home five one‐hundred \n\n 4 dollar bills and found in Orlando’s home ten one‐hundred dollar bills, \n\n 5 all of which had a large‐portrait image of Benjamin Franklin. The \n\n 6 prosecution argued, “How do you know [Orlando] paid [Jeannot?] \n\n 7 Why else would [Jeannot] do it, if not for $500, those five Ben \n\n 8 Franklins hundred dollar bills . . . a week after the execution murder. \n\n 9 Just so happens the defendant has ten of his own [$100 bills] back in \n\n10 [his home]. Of course [Orlando] paid [Jeannot]. [Jeannot’s] not doing \n\n11 it as a favor.” T. 876. \n\n12 The prosecution again returned to its “murder‐for‐hire” theory \n\n13 later in its closing argument, stating that “[Orlando] wasn’t upset by \n\n14 watching Bobby die. That was what was supposed to happen. That \n\n15 is what he paid [Jeannot] to do, to do his dirty work for him. Couldn’t \n\n16 do it himself.” T. 885. The prosecution suggested that Orlando paid \n\n\n\n\n 14\n\n \n\n\n\n\n 1 Jeannot when the pair briefly stopped at Orlando’s house after the \n\n 2 murder. T. 890. \n\n 3 III. Verdict and Sentence \n 4 \n 5 The jury found Orlando guilty of murder in the second degree. \n\n 6 Orlando was sentenced to an indeterminate term of 25 years to life in \n\n 7 prison on August 18, 2005. He is currently serving his sentence. \n\n 8 Jeannot was also convicted of the murder in a separate trial. \n\n 9 STATE COURT APPELLATE PROCEEDINGS \n\n10 Orlando appealed his conviction to the New York Supreme \n\n11 Court, Appellate Division. People v. Orlando, 61 A.D.3d 1001 (N.Y. \n\n12 App. Div. 2d Dep’t 2009). Orlando contended that Detective \n\n13 McGinn’s testimony as to Jeannot’s statement was inadmissible \n\n14 hearsay and also violated Orlando’s right to confront witnesses \n\n15 through cross examination, as guaranteed by the Sixth Amendment \n\n16 of the United States Constitution and incorporated against the states \n\n17 by the Fourteenth Amendment. Appellant’s Br. at 70–77, People v. \n\n\n\n\n 15\n\n \n\n\n\n\n 1 Orlando, No. 2005‐08854 (N.Y. App. Div. 2d Dep’t Mar. 23, 2008); \n\n 2 Orlando, 61 A.D.3d at 1001–03. \n\n 3 The Appellate Division rejected Orlando’s argument in a single \n\n 4 sentence, stating: “The [trial] court properly instructed the jury that \n\n 5 the testimony was admitted for the limited purpose of explaining the \n\n 6 detectiveʹs actions and their effect on the defendant, and not for the \n\n 7 truth of the codefendantʹs statement. ” Id. (quoting People v. Ewell, 12 \n\n 8 A.D.3d 616, 617 (N.Y. App. Div. 2d Dep’t 2004)) (internal quotation \n\n 9 marks omitted).9 The Appellate Division also cited Tennessee v. Street, \n\n10 471 U.S. 409 (1985), for its conclusion that the trial court did not err in \n\n11 admitting Jeannot’s statement through Detective McGinn. Id. \n\n\n\n\n 9 Although the Appellate Division described Jeannot as a “codefendant,” as is \n mentioned in the above text, he was tried and convicted at a separate trial after the \n Bruton ruling severing the trials. \n\n\n\n 16\n\n \n\n\n\n\n 1 The New York Court of Appeals subsequently denied Orlando \n\n 2 leave to appeal, thereby rendering the Appellate Division’s decision \n\n 3 final. People v. Orlando, 981 N.E.2d 291, 291 (N.Y. 2012).10 \n\n 4 SECTION 2254 PROCEEDING IN THE DISTRICT COURT \n 5 \n 6 Orlando, proceeding pro se, filed a petition for a writ of habeas \n\n 7 corpus pursuant to 28 U.S.C. § 2254 in the United States District Court \n\n 8 for the Eastern District of New York. As in his direct appeal, Orlando \n\n 9 argued that McGinn’s testimony regarding Jeannot’s statement was \n\n10 inadmissible hearsay and violated his Confrontation Clause right. \n\n11 The district court denied the writ.11 \n\n12 The district court identified the following testimony by McGinn \n\n13 as at issue in the Confrontation Clause analysis: \n\n\n\n Following his unsuccessful state appeals, Orlando filed two unsuccessful coram \n 10\n\n nobis petitions in state court alleging ineffective assistance of appellate counsel. See \n People v. Orlando, 85 A.D.3d 823 (N.Y. App. Div. 2d Dep’t 2011); People v. Orlando, \n 98 A.D.3d 691 (N.Y. App. Div. 2d Dep’t 2012). There is no dispute that Orlando \n has properly exhausted his Confrontation Clause claim for federal habeas review. \n\n 11 Orlando pursues only his Confrontation Clause challenge on appeal. See \n generally Pet. Br. \n\n\n\n 17\n\n \n\n\n\n\n 1 I left the [interrogation] room at about 6:50 [AM]. I went \n 2 back into the room at about ten minutes to eight. About 7:50 \n 3 in the morning. And I told [Orlando] at this point that \n 4 Herva Jeannot was, in fact, talking to the other detectives. \n 5 He had given a statement and he had implicated himself in \n 6 the murder. He said that he was the murderer, but that \n 7 Mark Orlando had paid him to do it. \n 8 \n 9 Orlando v. Nassau Cty. Dist. Atty’s Office, 246 F. Supp. 3d 569, 572–73 \n\n10 (E.D.N.Y. 2017).12 \n\n11 Relying principally on Tennessee v. Street, 471 U.S. 409 (1985), \n\n12 and United States v. Logan, 419 F.3d 172 (2d Cir. 2005), the district court \n\n13 rejected Orlando’s Confrontation Clause argument. Orlando, 246 F. \n\n14 Supp. 3d at 571–76. The district court reasoned that Jeannot’s \n\n15 statement was not offered against Orlando for its truth but only \n\n16 “provided context for explaining why Orlando altered his [original] \n\n\n\n\n 12 The district court did not recount or discuss the portion of McGinn’s testimony \n to the jury that vouched for the truth of Jeannot’s statement. T. 620 (“Herva \n Jeannot was relaying some of the events that really took place that night . . . the \n truth as to what happened that night.”); T. 621 (“I explained to Mr. Orlando that \n Herva Jeannot was, in fact, giving up what we felt were truer versions of the events \n of Bobby Calabrese’s murder.”) (emphasis added). That aspect of McGinn’s \n testimony is discussed later in this opinion. \n\n\n\n 18\n\n \n\n\n\n\n 1 exculpatory story” to admit that he had in fact been present for the \n\n 2 murder but that Jeannot had unexpectedly committed it. Id. at 574. \n\n 3 The district court also held that any error was harmless. Id. at 575–76. \n\n 4 The district court issued a certificate of appealability as to \n\n 5 Orlando’s Confrontation Clause argument. Id. at 578. Orlando then \n\n 6 timely filed a notice of appeal. \n\n 7 DISCUSSION \n\n 8 Orlando argues that: (1) without his ability to cross‐examine \n\n 9 Jeannot, McGinn’s testimony recounting Jeannot’s statement violated \n\n10 Orlando’s Confrontation Clause right; (2) the Appellate Division’s \n\n11 ruling to the contrary was “objectively unreasonable;” and (3) the \n\n12 erroneous admission of the testimony was not harmless. We agree. \n\n13 Accordingly, we reverse the district court’s denial of Orlando’s \n\n14 petition. \n\n15 \n\n16 \n\n\n\n\n 19\n\n \n\n\n\n\n 1 I. Standard of Review and Section 2254 Framework \n 2 \n 3 Under 28 U.S.C. § 2254, “a person in custody pursuant to the \n\n 4 judgment of a State court” may petition a district court for a writ of \n\n 5 habeas corpus “on the ground that he is in custody in violation of the \n\n 6 Constitution or laws or treaties of the United States.” Id. § 2254(a). \n\n 7 We review de novo a district court’s denial of a petition for a writ of \n\n 8 habeas corpus pursuant to 28 U.S.C. § 2254. Lynch v. Dolce, 789 F.3d \n\n 9 303, 311–12 (2d Cir. 2015). \n\n10 A petition for a writ of habeas corpus “shall not be granted with \n\n11 respect to any claim that was adjudicated on the merits in State court \n\n12 proceedings unless the adjudication of the claim . . . resulted in a \n\n13 decision that was contrary to, or involved an unreasonable \n\n14 application of, clearly established Federal law, as determined by the \n\n15 Supreme Court of the United States.” § 2254(d). “A state court \n\n16 decision is an ‘unreasonable application’ of clearly established federal \n\n17 law ‘if the state court identifies the correct governing legal principle \n\n\n\n\n 20\n\n \n\n\n\n\n 1 from [the Supreme] Courtʹs decisions but unreasonably applies that \n\n 2 principle to the facts of the prisoner’s case.’” Howard v. Walker, 406 \n\n 3 F.3d 114, 122 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, \n\n 4 413 (2000)). However, that bar is not reached where “fairminded \n\n 5 jurists could disagree on the correctness of the state court’s decision.” \n\n 6 Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks \n\n 7 and citation omitted). \n\n 8 II. The Confrontation Clause Violation \n\n 9 The Sixth Amendment’s Confrontation Clause provides that \n\n10 “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to \n\n11 be confronted with the witnesses against him.” U.S. Const. amend. \n\n12 VI. “‘The crux of this right is that the government cannot introduce \n\n13 at trial” an out‐of‐court witness’s “statements containing accusations \n\n14 against the defendant unless the accuser takes the stand against the \n\n15 defendant and is available for cross examination.’” United States v. \n\n16 Jass, 569 F.3d 47, 55 (2d Cir. 2009) (quoting Ryan v. Miller, 303 F.3d 231, \n\n\n\n\n 21\n\n \n\n\n\n\n 1 247 (2d Cir. 2002)) (internal quotations omitted). To implicate the \n\n 2 Confrontation Clause, the statement must be used to prove the truth \n\n 3 of the matter asserted, and the statement must be “testimonial.” Davis \n\n 4 v. Washington, 547 U.S. 813, 821–22 (2006) (citing Crawford v. \n\n 5 Washington, 541 U.S. 36, 51 (2004)). In other words, it must be \n\n 6 “testimonial hearsay.” Id. at 823. \n\n 7 Out‐of‐court statements may have a proper purpose other than \n\n 8 being considered for their truth. The Supreme Court and this Circuit \n\n 9 have acknowledged that a trial court’s instruction to a jury to consider \n\n10 only for a limited, nonhearsay purpose the non‐testifying witness’s \n\n11 out‐of‐court statement “is generally sufficient to eliminate . . . \n\n12 Confrontation Clause concern[s].” Jass, 569 F.3d at 55 (citing \n\n13 Richardson v. Marsh, 481 U.S. 200, 206 (1987)). That is because “[t]he \n\n14 law ‘almost invariabl[y] assum[es]’ that jurors follow such limiting \n\n15 instructions.” Id. (quoting Richardson, 481 U.S. at 206). \n\n\n\n\n 22\n\n \n\n\n\n\n 1 “Nevertheless, in Bruton v. United States, . . . the Supreme Court \n\n 2 identified an exception to th[e] assumption” that jurors follow \n\n 3 limiting instructions. Id. In Bruton v. United States, 391 U.S. 123, 124 \n\n 4 (1968), the defendant Bruton and his codefendant were tried jointly \n\n 5 for armed postal robbery. A postal inspector testified that the \n\n 6 codefendant confessed to him that Bruton and the codefendant \n\n 7 committed the robbery together. Id. The codefendant did not take \n\n 8 the stand, so he could not be cross‐examined. Id. at 128. The district \n\n 9 court provided a limiting instruction to the jury that “although [the \n\n10 codefendant’s] confession was competent evidence against [the \n\n11 codefendant] it was inadmissible hearsay against [Bruton] and \n\n12 therefore had to be disregarded in determining [Bruton’s] guilt or \n\n13 innocence.” Id. at 125. \n\n14 The Supreme Court reversed Bruton’s conviction, holding that \n\n15 because his codefendant was not subject to cross examination and \n\n16 “because of the substantial risk that the jury, despite instructions to \n\n\n\n\n 23\n\n \n\n\n\n\n 1 the contrary, looked to the incriminating extrajudicial statements in \n\n 2 determining [Bruton’s] guilt,” admission of the codefendant’s \n\n 3 confession in front of Bruton’s jury violated Bruton’s “right of cross‐\n\n 4 examination secured by the Confrontation Clause of the Sixth \n\n 5 Amendment.” Id. at 126. \n\n 6 The Court further explained that “[n]ot only are [alleged \n\n 7 accomplices’] incriminations devastating to the defendant but their \n\n 8 credibility is inevitably suspect, a fact recognized when accomplices \n\n 9 do take the stand and the jury is instructed to weigh their testimony \n\n10 carefully given the recognized motivation to shift blame onto others. \n\n11 The unreliability of such evidence is intolerably compounded when \n\n12 the alleged accomplice . . . does not testify and cannot be tested by \n\n13 cross‐examination.” Id. at 136. \n\n14 As a result, when a non‐testifying witness’s confession \n\n15 “expressly” implicates the defendant, “the risk that the jury will not, \n\n16 or cannot, follow instructions [to limit its consideration of the \n\n\n\n\n 24\n\n \n\n\n\n\n 1 evidence for a proper purpose] is so great, and the consequences of \n\n 2 failure so vital to the defendant, that the practical and human \n\n 3 limitations of the jury system cannot be ignored.” Richardson, 481 U.S. \n\n 4 at 207–08 (quoting Bruton, 391 U.S. at 135–36). When a jury hears such \n\n 5 express incriminations, even if given a “clear” limiting instruction, \n\n 6 “the effect is the same as if there had been no instruction at all.” \n\n 7 Bruton, 391 U.S. at 137. \n\n 8 Although the non‐testifying witness in Bruton was a \n\n 9 codefendant in a joint trial, Bruton applies equally to the testimonial \n\n10 and incriminating statements of non‐testifying accomplices tried \n\n11 separately. See Crawford, 541 U.S. at 57, 69 (stating that testimonial \n\n12 statements admitted without the opportunity to cross‐examine the \n\n13 declarant violate the Confrontation Clause and referring to Bruton as \n\n14 barring “accomplice confessions where the defendant had no \n\n15 opportunity to cross‐examine”); Tennessee v Street, 471 U.S. 409, 411, \n\n16 414–15 (1985) (recognizing that if the jury had been asked to infer that \n\n\n\n\n 25\n\n \n\n\n\n\n 1 the confession of the non‐testifying accomplice—who was tried \n\n 2 separately—proved that the defendant participated in the murder, \n\n 3 “Confrontation Clause concerns would have been implicated”). \n\n 4 Here, the Appellate Division correctly acknowledged that, \n\n 5 absent cross‐examination of Jeannot, admission of his facially \n\n 6 incriminating statement risked violating the Confrontation Clause, as \n\n 7 was recognized in Bruton. 13 People v. Orlando, 61 A.D.3d at 1002. \n\n 8 However, the Appellate Division reasoned that the jury would use \n\n 9 this evidence only to “explain the detective’s actions and their effect” \n\n10 on Orlando—that effect presumably being the reason why Orlando \n\n11 changed his account of the events of the night of the murder. Id. \n\n\n\n\n 13 Although the Appellate Division did not cite Bruton or articulate its holding, a \n state reviewing court need not to do so in order for it to be considered to have \n applied the constitutional principles set forth in Supreme Court precedent. See, \n e.g., Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (“[A] state court need not even be \n aware of our precedents, so long as neither the reasoning nor the result of the state‐\n court decision contradicts them.”) (internal quotation marks and citation omitted). \n The Appellate Division did cite Tennessee v. Street, 471 U.S. 409 (1985), which is \n discussed later in this opinion. \n\n\n\n 26\n\n \n\n\n\n\n 1 That conclusion by the Appellate Division was an unreasonable \n\n 2 application of Bruton. McGinn led the jury to believe that Jeannot had \n\n 3 actually made the statement McGinn recounted, and that statement \n\n 4 expressly inculpated Orlando as Jeannot’s accomplice in the murder. \n\n 5 Bruton plainly instructs that the jury could not be presumed to \n\n 6 disregard Jeannot’s statement for its truth, even with a limiting \n\n 7 instruction.14 \n\n 8 A. Jeannot Was an Out‐of‐Court Witness \n\n 9 The state argues in its brief that “[n]either McGinn nor \n\n10 McHugh ever testified that Jeannot actually made the statements at \n\n11 issue,” Respondent’s Br. at 29–30; in other words, that Jeannot was \n\n12 not an out‐of‐court “witness” within the meaning of the \n\n13 Confrontation Clause, see Davis, 547 U.S. at 821–22. And so, the state \n\n\n\n 14 In addition, there is no doubt that Jeannot’s statement was “testimonial.” See \n Davis, 547 U.S. at 821–22 (holding that statements made “in the course of police \n interrogation” are testimonial when made under “circumstances objectively \n indicat[ing] . . . that the primary purpose of the interrogation [was] to establish or \n prove past events potentially relevant to later criminal prosecution”). \n\n\n\n 27\n\n \n\n\n\n\n 1 contends, the situation here was no different than a jury merely \n\n 2 hearing that an investigator had used deception to elicit a confession. \n\n 3 The state is incorrect; of course the prosecution led the jury to \n\n 4 believe that Jeannot had actually made the statement McGinn \n\n 5 recounted. McGinn testified that, “I knew Detective McHugh was in \n\n 6 talking to Mr. Herva Jeannot,” and that, “I believe that Herva Jeannot \n\n 7 was relaying some of the events that really took place that night.” T. \n\n 8 620. The prosecution never disavowed that Jeannot had made the \n\n 9 statement, and it even recounted the statement in its summation. And \n\n10 that very statement was the reason for the Bruton severance in the first \n\n11 place. Thus, Jeannot was indeed an out‐of‐court “witness” subject to \n\n12 the cross‐examination requirements of the Confrontation Clause.15 \n\n\n\n\n 15\n A witness need only recount the critical substance of the out‐of‐court statement \n to implicate the Confrontation Clause. See Ryan v. Miller, 303 F.3d 231, 248–49 (2d \n Cir. 2002) (granting section 2254 petition due to non‐harmless Confrontation \n Clause violation, stating that “[i]f the substance of the prohibited testimony is \n evident even though it was not introduced in the prohibited form, the testimony \n is still inadmissible,” and collecting cases); Ocampo v. Vail, 649 F.3d 1098, 1108–11 \n (9th Cir. 2011) (“Supreme Court law . . . clearly establishe[s] that testimony from \n\n 28\n\n \n\n\n\n\n 1 B. The Admission of Jeannot’s Statement Was Clearly Barred \n 2 by Bruton \n 3 \n 4 With the jury having heard this expressly incriminating \n\n 5 statement from Jeannot, the only reasonable conclusion was that the \n\n 6 Confrontation Clause was violated under Bruton. The risk that the \n\n 7 jury would consider Jeannot’s statement for its truth was simply too \n\n 8 great to allow the jury to hear it, absent cross‐examination of Jeannot. \n\n 9 Indeed, “the overwhelming probability” of jurors’ inability to “thrust \n\n10 out of mind” express “testimony that ‘the defendant helped me \n\n11 commit the crime’ . . . is the foundation of Bruton.” Richardson, 481 U.S. \n\n12 at 208 (emphasis added); see also Bruton, 391 U.S. at 129 (“The \n\n13 Government should not have the windfall of having the jury be \n\n14 influenced by evidence against a defendant which, as a matter of law, \n\n15 they should not consider but which they cannot put out of their \n\n16 minds.”) (internal quotation marks and citation omitted) (overruling \n\n\n\n which one could determine the critical content of the out‐of‐court statement [is] \n sufficient to trigger Confrontation Clause concerns.”).\n\n\n\n 29\n\n \n\n\n\n\n 1 Delli Paoli v. United States, 352 U.S. 232 (1957), and adopting the \n\n 2 reasoning of the dissent in that decision). \n\n 3 The Confrontation Clause violation here is even clearer than in \n\n 4 Bruton. Detective McGinn did not merely recount Jeannot’s \n\n 5 confession implicating Orlando; he also vouched for its veracity. \n\n 6 McGinn testified, “I believe that Herva Jeannot was relaying some of \n\n 7 the events that really took place that night . . . the truth as to what \n\n 8 happened that night,” T. 620 (emphasis added), and “I explained to \n\n 9 Mr. Orlando that Herva Jeannot was, in fact, giving up . . . what we felt \n\n10 were truer versions of the events of Bobby Calabrese’s murder.”16 T. \n\n11 621 (emphasis added). That testimony by McGinn made it even less \n\n12 likely than in Bruton that the jury would have obeyed the trial court’s \n\n13 limiting instruction. See, e.g., United States v. Forrester, 60 F.3d 52, 63–\n\n\n\n\n We acknowledge that the latter statement could possibly be read as McGinn \n 16\n\n explaining only to Orlando rather than to the jury that McGinn and McHugh \n believed Jeannot was telling the truth about Orlando’s involvement the murder. \n However, there was no such ambiguity with regard to McGinn’s first statement \n that he believed Jeannot was relaying what “really took place that night.” T. 620. \n\n\n\n 30\n\n \n\n\n\n\n 1 64 (2d Cir. 1995) (discussing the prejudicial impact of government \n\n 2 agents vouching for witnesses).\n\n 3 Likewise, the prosecution’s summation further undermined \n\n 4 any possible effectiveness of the limiting instruction when it \n\n 5 reminded the jury of its murder‐for‐hire theory three times and \n\n 6 specifically called to its attention McGinn’s testimony that he told \n\n 7 Orlando, “[Jeannot’s] telling us everything . . . . He’s telling us he did \n\n 8 the shooting and you paid him.” T. 895. But, as discussed below with \n\n 9 regard to the harmless error analysis, the evidence—other than \n\n10 Jeannot’s statement—that Orlando had hired Jeannot to murder \n\n11 Calabrese, was weak. Thus, the likelihood that the jury credited \n\n12 Jeannot’s statement was higher even than in Bruton, where the \n\n13 Supreme Court did not suggest that the prosecution had undermined \n\n14 the limiting instruction.17 \n\n\n\n 17 We note also that the limiting instruction was decidedly unclear. The trial court \n instructed the jury to consider the testimony at issue when considering “the \n circumstances under which Orlando made any statements.” T. 624. McGinn, \n however, had just told the jury that the “circumstances” which led him to resume \n\n 31\n\n \n\n\n\n\n 1 In opposing Orlando’s petition, the state relies primarily on the \n\n 2 Supreme Court’s decision in Tennessee v. Street, 471 U.S. 409 (1985). In \n\n 3 Street, the defendant, Street, was tried for murder separately from his \n\n 4 alleged accomplice, Peele. Id. at 411. Street had confessed during an \n\n 5 interview with police to participating in a burglary and the murder \n\n 6 with Peele. Id. \n\n 7 In its case‐in‐chief, the state introduced Street’s confession. Id. \n\n 8 Street then took the stand during his defense case, and he testified \n\n 9 that the police had coerced his confession and that he had not been \n\n10 involved in the murder. Id. Street claimed that the police had shown \n\n11 him Peele’s confession during his interview and forced Street to give \n\n12 the same account as Peele. Id. \n\n13 The trial court then permitted the state to introduce in its \n\n14 rebuttal case Peele’s confession through the testimony of Sheriff \n\n\n\n interrogating Orlando were that “Herva Jeannot was relaying some of the events \n that really took place that night.” T. 620. By contrast, even in Bruton, the jury \n instructions were “concededly clear.” Bruton, 391 U.S. at 137. \n\n\n\n 32\n\n \n\n\n\n\n 1 Papantoniou, the police officer who had taken it. Id. at 411–12. The \n\n 2 state showed the obvious differences between the two statements to \n\n 3 discredit Street’s testimony that his confession had been coerced and \n\n 4 that the statements’ claimed similarities demonstrated the coercion. \n\n 5 Id. at 412. Both at the time the police officer recounted Peele’s \n\n 6 statement and in its jury instructions, the trial court instructed the jury \n\n 7 that Peele’s statement was admitted not for its truth, but rather only \n\n 8 to rebut Street’s contention that his confession was coerced. Id. Peele \n\n 9 did not testify at Street’s trial and, thus, could not be cross‐examined \n\n10 about his statement. \n\n11 The Supreme Court affirmed Street’s murder conviction. Id. at \n\n12 417. According to the Court, “[t]he nonhearsay aspect of Peeleʹs \n\n13 confession—not to prove what happened at the murder scene but to \n\n14 prove what happened when respondent confessed—raises no \n\n15 Confrontation Clause concerns. The Clauseʹs fundamental role in \n\n16 protecting the right of cross‐examination . . . was [thus] satisfied by \n\n\n\n\n 33\n\n \n\n\n\n\n 1 Sheriff Papantoniouʹs presence on the stand.” Id. at 414. After all, the \n\n 2 Supreme Court stated, “[i]f [Street’s] counsel doubted that [the \n\n 3 accomplice’s] confession was accurately recounted, he was free to \n\n 4 cross‐examine the Sheriff. By cross‐examination [Street’s] counsel \n\n 5 could also challenge Sheriff Papantoniou’s testimony that he did not \n\n 6 read from Peeleʹs statement and direct respondent to say the same \n\n 7 thing. In short, the State’s rebuttal witness against [Street] was not \n\n 8 Peele, but Sheriff Papantoniou.” Id. \n\n 9 The Court in Street went on to acknowledge that its conclusion \n\n10 depended on the “crucial assumption” that the jurors followed the \n\n11 trial court’s limiting instructions. Id. at 415. There, as in Bruton, \n\n12 Street’s accomplice had expressly implicated him in the crime. But \n\n13 unlike in Bruton, Street had placed the state in the position of not \n\n14 being able to effectively challenge Street’s testimony that his \n\n15 confession was coerced. And “the State’s most important piece of \n\n16 substantive evidence was [Street’s] confession.” Id. The only \n\n\n\n\n 34\n\n \n\n\n\n\n 1 available way to rebut Street’s contention of a coerced confession was \n\n 2 to compare Peele’s confession with Street’s; if they were different, that \n\n 3 would tend to show that Street’s coercion testimony was not credible. \n\n 4 See id. at 415–16. And so, if the trial court in Street had not allowed the \n\n 5 accomplice’s confession to be brought before the jury, that “would \n\n 6 have been at odds with the Confrontation Clause’s very mission—to \n\n 7 advance the accuracy of the truth‐determining process.” Id. at 415. \n\n 8 Thus, the Court in Street found, unlike in Bruton, that there were \n\n 9 “no alternatives [but allowing admission of the accomplice’s \n\n10 confession] that would have both assured the integrity of the trial’s \n\n11 truth‐seeking function and eliminated the risk of the jury’s improper \n\n12 use of evidence.” Id. \n\n13 Notably, in its conclusion, the Court in Street also took care to \n\n14 emphasize that the “prosecutor’s questions and closing argument” \n\n15 had done nothing to distract the jury from the accomplice confession’s \n\n16 “distinctive and limited purpose.” Id. at 417. It was only “in this \n\n\n\n\n 35\n\n \n\n\n\n\n 1 context” that the trial judge’s instructions were sufficient to prevent a \n\n 2 Confrontation Clause violation. Id. (emphasis added). \n\n 3 This case is very different from Street. The prosecution argued \n\n 4 that Jeannot’s statement merely showed “context” for why Orlando \n\n 5 changed his statement. But Jeannot’s statement went far beyond any \n\n 6 limited value in showing why Orlando changed his account of what \n\n 7 happened that night. The prosecution elicited testimony from \n\n 8 Detective McGinn that Jeannot had actually made the incriminating \n\n 9 statement, and McGinn vouched for Jeannot’s account. In its \n\n10 summation, the prosecution also repeated Jeannot’s statement, and \n\n11 pressed its murder‐for‐hire theory. \n\n12 Moreover, the prosecution’s need for the purported “context” \n\n13 was of little importance as compared to the need in Street. Orlando’s \n\n14 changing his account of the homicide was no different than many \n\n15 investigations when suspects make a series of statements; absent the \n\n16 substance of Jeannot’s statement, the jury still could have learned that \n\n\n\n\n 36\n\n \n\n\n\n\n 1 after several hours of interrogation, Orlando revised his story and \n\n 2 placed himself at the scene of the murder and admitted to lying about \n\n 3 his original account. That approach would have significantly \n\n 4 advanced the prosecution’s case without a critical narrative gap and, \n\n 5 accordingly, the “truth‐seeking function” of the trial would not have \n\n 6 been impeded in a way comparable to Street. See id. at 415–16. Nor \n\n 7 did Orlando take the stand at his trial, and so the credibility of his \n\n 8 own trial testimony was not an issue, unlike in Street where the state \n\n 9 otherwise would not have been able to challenge Street’s principal \n\n10 defense of coercion in giving his statement. \n\n11 To extend Street to the situation presented here would \n\n12 eviscerate the core protection of Bruton. To allow admission of \n\n13 Jeannot’s statement through McGinn would permit the admission of \n\n14 inculpatory statements of non‐testifying codefendants whenever the \n\n15 defendant changed his initial statement to investigators after \n\n16 investigators told the defendant of an accomplice’s incriminating \n\n\n\n\n 37\n\n \n\n\n\n\n1 confession. The prosecution would need only then argue to the trial \n\n2 court that the other confession was being shown to the jury just to \n\n3 show why there were changes to the original statement.18 19 \n\n4 * * * \n\n\n\n\n 18 The state also contends that the admission of Jeannot’s statements established \n “the voluntariness of [Orlando’s] statements.” Respondent’s Br. 30–31, 35. But, \n unlike Street, Orlando did not contest their voluntariness at trial. And, there was \n other evidence that Orlando’s statements were voluntary. The detectives testified \n that Orlando was advised of his Miranda rights and agreed to speak with them, \n and Orlando indicated that he understood his Miranda rights, was willing to give \n a statement without speaking with a lawyer or having one present, and that he \n was “mak[ing] the . . . statement[s] freely and voluntarily.” T. 546. \n \n 19 Other circuits have also recognized that Street does not permit the admission of \n\n an out‐of‐court accomplice statement merely because it may have some purpose \n other than for its truth. See, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1172–73 (9th Cir. \n 2001) (granting section 2254 petition due to Confrontation Clause violation and \n other constitutional errors, and stating that “[e]ven if the statements [we]re \n classified as non‐hearsay, they are sufficiently prejudicial that the jury would be \n unable to consider them only for limited purposes and would consider them for \n their truth in violation of the Confrontation Clause”) (abrogated on unrelated \n grounds by Payton v. Woodford, 299 F.3d 815, 828–29 n.11 (9th Cir. 2002), which the \n Supreme Court then vacated, 538 U.S. 975 (2003)); cf. United States v. Taylor, 569 \n F.3d 742, 750 (7th Cir. 2009) (finding no Confrontation Clause violation because \n the out‐of‐court statements were nonhearsay and there were no “complicating \n circumstances, such as a prosecutor who exploits nonhearsay statements for their truth”) \n (internal quotation marks and citation omitted) (emphasis added). \n\n\n\n 38\n\n \n\n\n\n\n 1 We hold that the Appellate Division unreasonably applied \n\n 2 Bruton in concluding that Orlando’s Sixth Amendment right to cross‐\n\n 3 examine a witness against him was not violated when the jury heard \n\n 4 of Jeannot’s statement implicating Orlando in the murder. To the \n\n 5 extent that the Appellate Division applied Street, it also extended that \n\n 6 decision unreasonably.20 \n\n 7 III. The Error Was Not Harmless \n\n 8 As Orlando and the state agree, the improper admission of \n\n 9 evidence in violation of the Confrontation Clause is subject to review \n\n10 for harmless error. Hendrix v. Smith, 639 F.2d 113, 115 (2d Cir. 1981) \n\n11 (citing Chapman v. California, 386 U.S. 18 (1967); Schneble v. Florida, 405 \n\n12 U.S. 427 (1972)). When a state court makes a harmless error \n\n\n\n\n 20 The state’s reliance on United States v. Logan, 419 F.3d 172 (2d Cir. 2005), is also \n misplaced. In Logan, the coconspirators’ statements concerning an alibi were \n admitted only to show the existence of a conspiracy. Id. at 176–78. Moreover, the \n statements were not admitted for their truth but—to the contrary—were shown to \n be untruthful. Id. Here, Jeannot’s statement—as recounted by Detective \n McGinn—was consistent with the state’s theory and was specifically utilized by \n the state to support that theory. \n \n\n 39\n\n \n\n\n\n\n 1 determination on direct appeal, we owe the “harmlessness \n\n 2 determination itself” deference under the Antiterrorism and Effective \n\n 3 Death Penalty Act of 1996 (“AEDPA”). Ayala, 135 S. Ct. at 2199. Here, \n\n 4 because the Appellate Division did not determine that the admission \n\n 5 of McGinn’s testimony as to Jeannot’s statements was harmless, we \n\n 6 owe no deference to the Appellate Division on that issue. E.g., Cotto \n\n 7 v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003) (“In this \n\n 8 case, harmless error was never reached in the state courts, and there \n\n 9 is therefore no state ruling which commands AEDPA deference.”). \n\n10 An error was harmless unless it resulted in “actual prejudice,” \n\n11 Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. \n\n12 Abrahamson, 507 U.S. 619, 637 (1993)), meaning that a court has “grave \n\n13 doubt about whether” the error “had ‘substantial and injurious effect \n\n14 or influence in determining the jury’s verdict.’” Id. at 2198 (quoting \n\n15 O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). This “Brecht standard” \n\n\n\n\n 40\n\n \n\n\n\n\n 1 requires “more than a ‘reasonable possibility’ that the error was \n\n 2 harmful.” Id. (quoting Brecht, 507 U.S. at 637). \n\n 3 We have little doubt that the improperly admitted testimony as \n\n 4 to Jeannot’s statement had such a powerful effect on the jury. The \n\n 5 prosecution’s theory was that Orlando was guilty of murder for \n\n 6 acting as Jeannot’s accomplice by paying Jeannot to shoot Calabrese \n\n 7 and helping Jeannot to do so. The trial judge instructed the jury that, \n\n 8 to convict Orlando, the prosecution had to prove that Orlando acted \n\n 9 in concert with Jeannot. The state argues that, even absent admission \n\n10 of Jeannot’s confession through McGinn’s testimony, the evidence of \n\n11 Orlando’s guilt was “nothing short of overwhelming.” Respondent’s \n\n12 Br. at 47. \n\n13 In support, the state contends that Orlando’s $17,000 gambling \n\n14 debt to Calabrese was compelling evidence of motive; that the \n\n15 hundred‐dollar bills found in the homes of both Orlando and Jeannot \n\n16 after the murder were evidence of the murder‐for‐hire transaction; \n\n\n\n\n 41\n\n \n\n\n\n\n 1 and that forensic testimony as to the location of bullet holes in \n\n 2 Calabrese’s sweatshirt showed that Orlando pulled the sweatshirt \n\n 3 over Calabrese’s head before Jeannot shot him. Finally, the state \n\n 4 emphasizes that the video evidence, as well as cell site evidence, \n\n 5 showed that Orlando was at the location where the homicide \n\n 6 occurred. We address these arguments in turn. \n\n 7 A. Evidence of Motive \n\n 8 Although it was undisputed that Orlando owed Calabrese \n\n 9 $17,000, the evidence showed that Orlando had won $27,000 in the \n\n10 month prior. Accordingly, he had net winnings of $10,000 over a six‐\n\n11 week period. Moreover, the evidence showed that Orlando had \n\n12 $2,700 in cash in his residence after the murder (and after he \n\n13 purportedly paid Jeannot to commit the murder). And so, the \n\n14 evidence that Orlando lacked the funds to pay Calabrese was slight.21 \n\n15 \n\n\n\n 21 The state also did not introduce evidence of Orlando’s bank records at trial. \n\n\n\n 42\n\n \n\n\n\n\n 1 Moreover, it strains credulity that Orlando would have \n\n 2 believed that murdering a courier in an illegal gambling operation \n\n 3 would erase a gambling debt of $17,000 and prevent attempts by the \n\n 4 other members of the gambling operation to seek payment. The \n\n 5 prosecution argued that Orlando’s plan was to murder Calabrese and \n\n 6 then claim to Calabrese’s superiors in the illegal sports betting \n\n 7 organization that he had paid Calabrese (and that Calabrese must \n\n 8 have been robbed and murdered by someone else). But it certainly is \n\n 9 not obvious that Orlando would have thought such a plan would \n\n10 work. \n\n11 B. Evidence of a Murder‐for‐Hire Transaction \n\n12 Similarly, the discovery of a small number of one‐hundred‐\n\n13 dollar bills in the homes of both Orlando and Jeannot after the murder \n\n14 was not particularly probative of a murder‐for‐hire transaction. The \n\n15 state asserts that the hundred‐dollar bill design with “the large \n\n16 picture of Ben Franklin” was “then new” and, thus so rare as to mean \n\n\n\n\n 43\n\n \n\n\n\n\n 1 Jeannot’s bills likely came from Orlando. Respondent’s Br. at 48. But \n\n 2 that design began circulating in 1996,22 eight years before the murder \n\n 3 of Calabrese. A jury thus would not have found it remarkable that \n\n 4 the bills in both homes had the same design. Nor did the U.S. \n\n 5 currency found in Jeannot’s home have any fingerprints, sequential \n\n 6 serial numbers, or DNA that might have linked them to a transaction \n\n 7 between Orlando and Jeannot. \n\n 8 In addition, only $500 in bills was found in Jeannot’s home. It \n\n 9 is entirely unclear why Jeannot would accept only $500 to commit a \n\n10 murder, particularly given that Jeannot undisputedly knew Orlando \n\n11 owed Calabrese many times that amount. The prosecution suggested \n\n12 that the $500 found in Jeannot’s home may have been only a small \n\n13 portion of the murder‐for‐hire payment. But the prosecution \n\n\n\n\n 22 See, e.g., Carl Rochelle, Redesigned $100 Bill Aimed at Foiling Counterfeiters, CNN \n (Mar. 25, 1996, 1:35 AM), http://edition.cnn.com/US/9603/new_100_bill/index.html \n (stating that the redesigned $100 bills with a larger Ben Franklin were to go into \n circulation on March 25, 1996). \n\n\n\n 44\n\n \n\n\n\n\n 1 presented no theory or evidence as to what may have happened to \n\n 2 any cash payment that exceeded the $500 found. \n\n 3 C. Forensic Evidence \n\n 4 We turn next to the expert testimony of two other Nassau \n\n 5 County detectives and Nassau County Deputy Chief Medical \n\n 6 Examiner DeMartino regarding the bullet holes in Calabrese’s \n\n 7 sweatshirt. The state argues that forensic evidence clearly established \n\n 8 that, just before Jeannot fired the first shot, Orlando pulled \n\n 9 Calabrese’s sweatshirt over Calabrese’s head to help Jeannot shoot \n\n10 him.23 \n\n11 We disagree that this evidence was persuasive of Orlando \n\n12 helping Jeannot shoot Calabrese. First, the location of the bullet holes \n\n13 did not clearly establish that Calabrese’s sweatshirt had been pulled \n\n14 up over his head at the time the first shot was fired. That is the \n\n\n\n The district court agreed with that argument, stating that the forensic evidence \n 23\n\n gave rise to “an inescapable inference . . . that Orlando . . . pulled the sweatshirt \n over Calabreseʹs head.” Orlando, 246 F. Supp. 3d at 576. \n\n\n\n 45\n\n \n\n\n\n\n 1 relevant time that, according to the prosecution, Orlando would have \n\n 2 been pulling up the sweatshirt. The first shot undisputedly went \n\n 3 through Calabrese’s right forearm, making holes only in his \n\n 4 sweatshirt sleeve, and the bullet then lodged in the right side of \n\n 5 Calabrese’s head. The prosecution suggested to the jury that Orlando \n\n 6 had pulled the sweatshirt so far over Calabrese’s head that the back \n\n 7 of his head was exposed, allowing the first bullet to pass through the \n\n 8 sleeve without creating any other holes in the sweatshirt. That is \n\n 9 possible, but that evidence is just as—if not more—consistent with \n\n10 Calabrese, for example, putting up his arms in a defensive position, \n\n11 and the first bullet passing through his right sleeve and arm, and then, \n\n12 into his uncovered24 head. Indeed, the medical examiner DeMartino \n\n13 concluded that the wound in Calabrese’s right arm was consistent \n\n\n\n\n 24 Nassau County Forensic Evidence Bureau Detective Kovar, whom the \n prosecution called to testify as to trace forensic evidence at the scene of the crime, \n agreed that the hood of the sweatshirt was not covering Calabrese’s head at the \n time the first shot was fired. \n\n\n\n 46\n\n \n\n\n\n\n 1 with Calabrese having raised his arm in a defensive manner prior to \n\n 2 the first shot being fired. Or, even if the sweatshirt had been pulled \n\n 3 up, it could have been done by Jeannot prior to shooting Calabrese. \n\n 4 By contrast, the forensic evidence was clearer that at the time \n\n 5 the second and third shots were fired into the back of Calabrese’s \n\n 6 head, his sweatshirt was pulled up over his head. There were holes \n\n 7 in the back of Calabrese’s sweatshirt that matched up with the bullet \n\n 8 wounds in the back of his head. But, it is not disputed that at the time \n\n 9 the second and third shots were fired, Calabrese was already lying, \n\n10 face‐down, on the ground from the effect of the first shot. Maybe \n\n11 Orlando pulled the sweatshirt over Calabrese’s head after the first \n\n12 shot; maybe it was Jeannot who pulled up the sweatshirt at this point \n\n13 to avoid blood splatter; or maybe the sweatshirt came upward as \n\n14 Calabrese fell to the ground and struggled after the first shot. In any \n\n15 event, the only obvious conclusions from the sweatshirt and autopsy \n\n16 evidence were that Calabrese was first shot by Jeannot from behind, \n\n\n\n\n 47\n\n \n\n\n\n\n 1 while he was standing up, and then twice more while lying on the \n\n 2 ground, with the sweatshirt over his head for the second and third \n\n 3 shots. But it is far from clear how the sweatshirt ended up over his \n\n 4 head. \n\n 5 The state introduced no other forensic evidence pointing to \n\n 6 Orlando, such as DNA, fingerprints, or blood in his car or on his \n\n 7 clothing. In sum, the forensic evidence to support the prosecution’s \n\n 8 accomplice theory was insubstantial. \n\n 9 D. Orlando’s Choice of a Meeting Location \n\n10 The evidence that Orlando chose a discreet meeting location to \n\n11 pay his debt to Calabrese was also only minimally probative of his \n\n12 guilt. Orlando told investigators that he and Calabrese had arranged \n\n13 to meet on December 3 in Island Park, and that he called Calabrese \n\n14 shortly beforehand to change the meeting to a more secluded place \n\n15 because there were several people within sight of the planned \n\n16 meeting location. \n\n\n\n\n 48\n\n \n\n\n\n\n 1 Jurors could have credited Orlando’s choice of meeting \n\n 2 location as part of a plan to murder Calabrese, but they could also \n\n 3 reasonably have accepted that Orlando was concerned about being \n\n 4 seen engaging in an illegal $17,000 gambling transaction. \n\n 5 E. Evidence of an Attempt to Create an Alibi \n\n 6 The prosecution also contended that the jury could have \n\n 7 construed Orlando’s several stops after the murder as evidence of an \n\n 8 attempt to manufacture a false alibi. Orlando explained the stops as \n\n 9 an attempt to be seen with Jeannot, so that Jeannot could not blame \n\n10 the murder on Orlando. But, a jury could instead have reasonably \n\n11 inferred that, given Jeannot’s purported threat to Orlando to maintain \n\n12 his silence, Orlando’s behavior after the murder was consistent with \n\n13 an attempt to put Jeannot at ease that Orlando would not report \n\n14 Jeannot’s role in the murder. \n\n15 \n\n16 \n\n\n\n\n 49\n\n \n\n\n\n\n 1 F. Evidence Orlando Was at the Murder Scene \n\n 2 Lastly, we acknowledge that the prosecution needed only to \n\n 3 convict Orlando of murder and not to prove specifically its murder‐\n\n 4 for‐hire theory. In that regard, the state emphasizes, for example, the \n\n 5 evidence that Orlando was present at the murder scene. In addition, \n\n 6 Orlando’s coworker Barbara Diamant testified that Orlando told her \n\n 7 the morning after the homicide that Calabrese had been shot in the \n\n 8 back of the head three times, before this became public information. \n\n 9 However, that Orlando was present for the murder was not disputed \n\n10 by him in his second statement or at trial, and as discussed above, the \n\n11 evidence that Orlando assisted the murder in some way was made \n\n12 substantially stronger by Jeannot’s incriminating confession. \n\n13 * * * \n\n14 In sum, considered both in isolation and cumulatively, the \n\n15 properly admitted evidence of Orlando’s guilt leaves us with “grave \n\n16 doubt” about whether the trial court’s error substantially and \n\n\n\n\n 50\n\n \n\n\n\n\n 1 injuriously influenced the jury’s verdict. See Davis, 135 S. Ct. at 2198. \n\n 2 McGinn’s testimony of Jeannot’s incriminating statement was \n\n 3 essential in persuading the jury of Orlando’s guilt and meets the bar \n\n 4 set by the Brecht standard. Accordingly, the constitutional error in \n\n 5 this case was not harmless. \n\n 6 CONCLUSION \n\n 7 For the foregoing reasons, we REVERSE the district court’s \n\n 8 denial of Orlando’s petition, and REMAND the case to the district \n\n 9 court with instructions to issue a writ of habeas corpus to Orlando on \n\n10 the sixtieth calendar day after the issuance of our mandate unless the \n\n11 District Attorney of Nassau County has, by that time, taken concrete \n\n12 and substantial steps to expeditiously retry Orlando. The mandate \n\n13 shall issue forthwith. \n\n\n\n\n 51\n[END_CASE]",
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8,443,871 | Mark ORLANDO v. NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE | Orlando v. Nassau Cnty. Dist. Attorney's Office | 2019-02-11 | No. 17-2390; August Term, 2017 | U.S. Court of Appeals for the Second Circuit | {"judges": "Droney, Jacobs, Shea", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415299/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415300/", "author_raw": ""}]} | DRONEY | JACOBS | SHEA | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443871/ | Published | 0 | 1 | 0 | 0 | 1 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Mark ORLANDO v. NASSAU COUNTY DISTRICT ATTORNEY'S OFFICE\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-11\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
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4,589,716 | Hazel B. PAPPAS, Individually and as Administratix and Sole Beneficiary of the Estate of James Pappas, Cassandra Pappas, Markos Pappas, Plaintiffs-Appellants, v. PHILIP MORRIS, INC., AKA Philip Morris USA, AKA Philip Morris USA Inc., Defendant-Appellee. | Pappas v. Philip Morris, Inc. | 2019-02-12 | Docket 17-3842-cv; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Lynch, Hall, Engelmayer", "parties": "", "opinions": [{"author": "GERARD E. LYNCH, Circuit Judge:", "type": "010combined", "text": "17-3842-cv\nPappas v. Philip Morris, Inc.\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n August Term, 2018\n\n Submitted: November 5, 2018 Decided: February 12, 2019\n\n Docket No. 17-3842-cv\n\n\n\n HAZEL B. PAPPAS, INDIVIDUALLY AND AS ADMINISTRATIX AND SOLE BENEFICIARY OF\n THE ESTATE OF JAMES PAPPAS, CASSANDRA PAPPAS, MARKOS PAPPAS,\n\n\n Plaintiffs-Appellants,\n\n — v. —\n\n PHILIP MORRIS, INC., AKA PHILIP MORRIS USA, AKA PHILIP MORRIS USA INC.,\n\n Defendant-Appellee.\n\n\n\n\nB e f o r e:\n\n LYNCH and HALL, Circuit Judges, and ENGELMAYER, District Judge.*\n\n\n\n\n Hazel B. Pappas, pro se, seeks to pursue several Connecticut state-law\nliability claims against Philip Morris, Inc., on behalf of the estate of her late\n\n\n*\n Judge Paul A. Engelmayer, of the United States District Court for the Southern\nDistrict of New York, sitting by designation.\n\fhusband, who died of respiratory and heart diseases after years of smoking\nMarlboro cigarettes. The district court dismissed certain of Pappas’s claims,\nholding that Connecticut law would not allow her to represent the estate pro se,\nand dismissed her other claims on the ground that they were barred by the\nstatute of limitations. The order of the district court is AFFIRMED in part and\nVACATED in part, and the case is REMANDED for further proceedings.\n\n\n\n\n Hazel B. Pappas, pro se, Cassandra Pappas, pro se, New Haven,\n CT; Markos Pappas, pro se, Berlin, NH, for Plaintiffs-\n Appellants.\n\n Keri L. Arnold, Arnold & Porter Kaye Scholer LLP, New York,\n NY; Paul W. Rodney, Arnold & Porter Kaye Scholer\n LLP, Denver, CO, for Defendant-Appellee.\n\n\n\nGERARD E. LYNCH, Circuit Judge:\n\n Plaintiff-Appellant Hazel B. Pappas (“Pappas”) seeks to bring several\n\nConnecticut law claims, pro se, against Defendant-Appellee Philip Morris, Inc.\n\n(“Philip Morris”), on behalf of the estate of her late husband, who died of\n\nrespiratory and heart diseases after years of smoking Marlboro cigarettes,\n\nmanufactured by Philip Morris. The United States District Court for the District\n\nof Connecticut (Alvin W. Thompson, J.) dismissed Pappas’s complaint, holding\n\nthat certain of her claims were barred by the statute of limitations and that she\n\ncould not bring the remaining claims pro se, since with respect to those claims she\n\n\n 2\n\fwas representing not herself, but the estate of her late husband. Pappas appealed.\n\nFor the reasons that follow, we VACATE the dismissal of Pappas’s claim under\n\nthe Connecticut Product Liability Act (“CPLA”), her derivative claim for loss of\n\nspousal consortium, and the claim of Plaintiffs-Appellants Cassandra and\n\nMarkos Pappas for loss of parental consortium, and REMAND for further\n\nproceedings. We AFFIRM the district court’s order in all other respects.\n\n BACKGROUND\n\n\n Acting pro se, Pappas filed a products liability suit against Philip Morris in\n\nthe district court pursuant to its diversity jurisdiction, asserting claims both on\n\nher own behalf and on behalf of her late husband’s estate, of which she is\n\nAdministratix. She alleges that in or about the late 1950s, her late husband, James\n\nPappas, was lured into cigarette smoking by a marketing strategy and conspiracy\n\namong tobacco companies to glamorize smoking and portray it as a normal and\n\nnon-dangerous part of American culture. For over five decades, James Pappas\n\nsmoked Marlboro cigarettes manufactured by Philip Morris. As a result of\n\nsmoking cigarettes, James Pappas contracted respiratory and heart diseases that\n\nled to his death on June 19, 2013, at the age of 79. In or about March 2016, a\n\nmedical professional informed Pappas that James Pappas’s smoking Marlboro\n\n\n 3\n\fcigarettes caused and aggravated the respiratory and heart disease that killed\n\nhim.\n\n\n On June 15, 2016, Pappas, and her two children with James, Cassandra and\n\nMarkos Pappas, filed a complaint stating claims against Philip Morris for (1)\n\nviolating the CPLA, Conn. Gen. Stat. § 52–572m, et seq., and Connecticut Unfair\n\nTrade Practices Act, Conn. Gen. Stat. § 42–110a, et seq., (“CUTPA”); (2) loss of\n\nspousal consortium; (3) loss of parental consortium; and (4) negligent infliction of\n\nemotional distress (“NIED”). In support of Pappas’s ability to litigate the action\n\npro se, Cassandra and Markos Pappas filed disclaimers of interest in their father’s\n\nestate, and Pappas filed an affidavit stating that to her knowledge James Pappas\n\nhas no known creditors or debtors. As a result, Pappas contends that she is the\n\nsole beneficiary of James Pappas’s estate.\n\n\n The district court held a hearing to determine, among other things,\n\nwhether Pappas could represent the estate pro se. After briefing by the parties, the\n\ndistrict court dismissed Pappas’s, Cassandra’s, and Markos’s complaint under\n\nFed. R. Civ. P. 12(b)(1) and 12(b)(6). Pappas v. Philip Morris USA Inc., No. 3:16-cv-\n\n932(AWT), 2017 WL 6629298 (D. Conn. June 21, 2017).\n\n\n\n\n 4\n\f The district court dismissed Pappas’s CPLA claim, which belongs to James\n\nPappas’s estate, on the ground that Pappas could not bring that claim pro se. The\n\ncourt held that because it was sitting in diversity jurisdiction, it had to apply\n\nConnecticut law to the question of whether Pappas could represent the estate pro\n\nse, and under Ellis v. Cohen, 982 A.2d 1130 (Conn. App. Ct. 2009), she could not\n\ndo so. Ellis explains that under Connecticut law, a litigant may appear pro se only\n\nto represent her own cause, and that individuals may not appear pro se when\n\nthey are suing in a representative capacity. Id. at 1133. The district court rejected\n\nthe applicability of a Second Circuit case, Guest v. Hansen, 603 F.3d 15 (2d Cir.\n\n2010), in which this Court held that the administrator of an estate could represent\n\nthe estate pro se under certain conditions, on the grounds that Guest was decided\n\nunder New York law. The district court also dismissed Pappas’s loss of spousal\n\nconsortium claim, and Cassandra’s and Markos’s loss of parental consortium\n\nclaims, on the ground that those claims were derivative of the dismissed CPLA\n\nclaim.\n\n\n The district court also dismissed the CUTPA claims and NIED claims as\n\ntime-barred by their respective three- and two-year statutes of limitations. The\n\ndistrict court further ruled that, even if the CUTPA claims were not time-barred,\n\n\n 5\n\fPappas’s CUTPA claims would still fail because the CPLA, not CUTPA, provides\n\nthe exclusive remedy under Connecticut law for a party seeking recompense for\n\ninjuries caused by a product defect.\n\n\n Having thus dismissed all the claims in the complaint, the district court\n\nordered the case closed. Pappas and her children moved to amend the judgment\n\nunder Fed. R. Civ. P. 59(e), asserting numerous arguments. The district court\n\ndenied the motion. Pappas and her children timely appealed.\n\n DISCUSSION\n\n We write to correct the district court’s error in applying Connecticut law to\n\nthe question of whether Pappas can represent the estate of her late husband pro\n\nse, an issue we review de novo. See Principal Nat’l Life Ins. Co. v. Coassin, 884 F.3d\n\n130, 134 (2d Cir. 2018).\n\nI. The Conflict Between Federal and Connecticut Law\n\n Connecticut law and federal law appear to conflict on the issue of whether\n\nPappas can represent the estate pro se. In Guest, this Court held that a pro se\n\nplaintiff could represent an estate when the plaintiff is the estate’s only\n\nbeneficiary and the estate has no creditors. 603 F.3d at 21. Contrary to the district\n\ncourt’s belief, that holding was not based on New York law. Although the\n\n\n 6\n\fjurisdiction of the Guest Court was based on diversity of citizenship, and the\n\nCourt applied New York law to the substantive issues before it, id. at 21–22, the\n\nportion of the Guest opinion discussing whether the estate could be represented\n\nby a pro se litigant relied exclusively on 28 U.S.C. § 1654 and federal cases\n\ngoverning the practice of law in federal courts, referencing New York law only to\n\nidentify the nature of the substantive claims being pursued. Id. at 20–21.\n\n The Guest holding was rooted in § 1654. That statute provides that “[i]n all\n\ncourts of the United States the parties may plead and conduct their own cases\n\npersonally or by counsel as [permitted] by the rules of such courts, respectively.”\n\n28 U.S.C. § 1654. As the Court explained, § 1654 limits parties to pleading and\n\nconducting their own cases personally, because “the law contains so many\n\nesoteric pitfalls for an untrained advocate . . . that the risk of inadvertent waiver\n\nor abandonment of an issue is too high for us to allow a pro se litigant to represent\n\nanother person.” Guest, 603 F.3d at 20. Nevertheless, the Court continued, when\n\nthe administrator and sole beneficiary of an estate with no creditors seeks to\n\nappear pro se on behalf of the estate, she is in fact appearing solely on her own\n\nbehalf, because she is the only party affected by the disposition of the suit. Id. at\n\n21. Under those circumstances, the assignment of the sole beneficiary’s claims to\n\n\n 7\n\fa paper entity—the estate—rather than to the beneficiary herself, is only a legal\n\nfiction. Id.\n\n Connecticut law apparently provides otherwise. In Connecticut, “a person\n\nwho has not been admitted as an attorney . . . shall not . . . [p]ractice law or\n\nappear as an attorney-at-law for another, in any court of record in [Connecticut],”\n\nConn. Gen. Stat. Ann. § 51–88(a), and Connecticut state courts have interpreted\n\nthat statute to prohibit pro se representation of an estate. See e.g., Milner v. Beckett\n\nCorp., No. HHDCV115035597S, 2012 WL 527628, at *3 (Conn. Super. Ct. Jan. 25,\n\n2012) (“[T]he plaintiff could not, in a pro se capacity, represent his father’s\n\nestate.”); Sedich v. Waynik, No. CV 970348505S, 1998 WL 328043 at *1 (Conn.\n\nSuper. Ct. June 15, 1998) (“An administrator is the personal representative of the\n\nestate and its beneficiaries and cannot bring a suit as a pro se.”) (internal\n\nquotations marks omitted). In Ellis, 982 A.2d at 1133–34, the Appellate Court of\n\nConnecticut held that the executor of an estate has no right of self-representation,\n\nand thus an executor’s pro se appearance in court on behalf of the estate\n\nconstituted the unauthorized practice of law.1 Because Connecticut law and\n\n\n1\n We note that no Connecticut court has addressed the narrow question of\nwhether there is an exception to the rule that a pro se litigant can only represent\nherself, where the pro se litigant seeks to represent an estate that has no creditors\n\n 8\n\ffederal law are in conflict on this point, we must decide which applies in the case\n\nbefore us.\n\nII. The Erie Doctrine\n\n The district court held that it was required to apply Connecticut law on\n\nthis question under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). In Erie,\n\nthe Supreme Court construed the Rules of Decision Act, § 34 of the Judiciary Act\n\nof 1789, which provides that: “[t]he laws of the several states, except where the\n\nConstitution or treaties of the United States or Acts of Congress otherwise\n\nrequire or provide, shall be regarded as rules of decision in civil actions in the\n\ncourts of the United States, in cases where they apply.” 28 U.S.C. § 1652. Erie\n\nstands for the proposition that, as a general matter, a federal district court sitting\n\nin diversity jurisdiction must apply the substantive law of the state in which it sits.\n\nSee Erie, 304 U.S. at 78.\n\n However, the Constitution also vests Congress with the power “[t]o\n\n\n\nand of which she is the only beneficiary. Connecticut cases all state the rule\nbanning pro se litigants from representing anyone other than themselves in\nabsolute terms, see e.g., Expressway Assocs. II v. Friendly Ice Cream Corp. of\nConnecticut, 642 A.2d 62, 64 (Conn. App. Ct. 1994), and we found no case\nsuggesting the existence of any exceptions. Under the circumstances, we assume,\nas do the parties, that the district court correctly interpreted Connecticut law as\nnot recognizing the exception adopted as a matter of federal law in Guest.\n\n 9\n\fconstitute Tribunals inferior to the supreme Court” and “[t]o make all Laws\n\nwhich shall be necessary and proper for carrying into Execution” that power.\n\nU.S. Const. art I, § 8, cls. 9, 18. Thus, while “Congress has no power to declare\n\nsubstantive rules of common law applicable in a state,” Erie, 304 U.S. at 78, “Erie\n\nand its offspring cast no doubt on the long-recognized power of Congress to\n\nprescribe housekeeping rules for federal courts even though some of those rules\n\nwill inevitably differ from comparable state rules,” Hanna v. Plumer, 380 U.S. 460,\n\n473 (1965); see Erie, 304 U.S. at 72–73 (“[T]he purpose of [section 34] was merely to\n\nmake certain that, in all matters except those in which some federal law is controlling,\n\nthe federal courts exercising jurisdiction in diversity of citizenship cases would\n\napply as their rules of decision the law of the state . . . .”) (emphasis added).\n\n Erie and its progeny thus require us to reconcile two different edicts: the\n\ncommand that federal courts must honor applicable state substantive law on the\n\none hand, and the integrity of the federal courts as an independent judicial\n\nsystem on the other. See 19 Charles Alan Wright et al., Fed. Prac. & Proc. Juris.\n\n§ 4501 (3d ed.). Where state and federal law are in conflict, we reconcile those\n\nprinciples by asking whether the federal law or rule “regulate[s] matters\n\nrationally capable of classification as procedure.” Shady Grove Orthopedic Assocs.,\n\n\n 10\n\fP.A. v. Allstate Ins. Co., 559 U.S. 393, 406 (2010) (internal quotation marks\n\nomitted); accord Hanna, 380 U.S. at 472 (“[T]he constitutional provision for a\n\nfederal court system (augmented by the Necessary and Proper clause) . . .\n\nincludes a power to regulate matters which, though falling within the uncertain\n\narea between substance and procedure, are rationally capable of classification as\n\neither.”). Procedure is “the judicial process for enforcing rights and duties\n\nrecognized by substantive law and for justly administering remedy and redress\n\nfor disregard or infraction of them,” Hanna, 380 U.S. at 464, while substantive law\n\nis the law that governs the rights and obligations of individuals within a given\n\njurisdiction, see Shady Grove, 559 U.S. at 407. When deciding what law to apply in\n\nfederal court, we also consider whether disregarding the law that would control\n\nin state court would significantly affect the result of the litigation in federal court.\n\nSee Hanna, 380 U.S. at 466. That “outcome-determination test,” however “cannot\n\nbe read without reference to the twin aims of the Erie rule: discouragement of\n\nforum-shopping and avoidance of inequitable administration of the laws.” Id. at\n\n468.\n\nIII. Federal Law Governs Legal Practice Before the Federal Courts\n\n The district court misread both Erie and Guest in concluding that\n\n\n 11\n\fConnecticut’s rule controlled the circumstances in which a party may appear pro\n\nse in federal court. We now make explicit what was implicit in Guest: that § 1654,\n\nand federal rules interpreting it, are procedural in nature and therefore must be\n\napplied by federal courts in diversity cases. Who may practice law before a\n\nfederal court is a matter of procedure—which Congress and the federal courts\n\nhave the power to regulate—notwithstanding contrary state law.\n\n Federal courts have discretion to adopt such rules as are necessary to carry\n\nout the business of the courts. See Frazier v. Heebe, 482 U.S. 641, 645 (1987); Fed. R.\n\nCiv. P. 83. That authority includes the regulation of admissions to a court’s own\n\nbar. Frazier, 482 U.S. at 645. “The authority to adopt rules relating to admission to\n\npractice before the federal courts was delegated by Congress to the federal courts\n\n[by] Section 35 of the Judiciary Act of 1789 . . . now codified as 28 U.S.C. § 1654.”\n\nBrown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985). Thus, while “attorneys\n\npracticing in federal court are charged with . . . the duty to conform to the state\n\ncode of professional responsibility,” Shabbir v. Pakistan Int’l Airlines, 443 F. Supp.\n\n2d 299, 306 (E.D.N.Y. 2005), district courts have the “right and duty . . . to\n\nregulate the proceedings and the counsel who come before [them],” In re\n\nSeptember 11 Litig., 236 F.R.D. 164, 172 (S.D.N.Y. 2006).\n\n\n 12\n\f The Seventh Circuit said as much in Elustra v. Mineo, 595 F.3d 699 (7th Cir.\n\n2010). In Elustra, the Court had to determine the validity of a motion filed by a\n\nnon-lawyer mother on behalf of her minor and adult daughters, after the\n\ndaughters’ lawyers had been discharged. Id. at 703–04. The Court recognized that\n\nits first decision was whether it should look to state or federal law to resolve the\n\nproblem. Id. at 704. It noted that, “[o]n the one hand, Fed. R. Civ. P. 17(b)\n\nprovides that ‘capacity to sue’ is defined by state law.” Id. But, on the other hand,\n\nfederal courts are entitled to use their own procedures, whether jurisdiction is\n\nbased on a federal question or on another ground such as diversity of citizenship\n\nor supplemental jurisdiction. Id. The Court noted that the validity of a motion\n\nfiled by a non-attorney representative had “less to do with the capacity to sue\n\nthan it does with the right to act in court, which is normally a matter regulated by\n\nthe rules of professional conduct.” Id. Because “[f]ederal courts have the inherent\n\nauthority to adopt their own rules . . . federal law [] dictate[d] whether [the\n\nmother] was entitled to act for one or more of her three daughters in the way that\n\nshe did.” Id.\n\n Indeed, district courts regulate, by means of their local rules, who may\n\npractice before them. For example, District of Connecticut Local Civil Rule 83.1 is\n\n\n 13\n\ftitled “Admission of Attorneys.” Its subsection (a) states that:\n\n Any attorney of the Bar of the State of Connecticut or of\n the bar of any United States District Court, whose\n professional character is good, may be admitted to\n practice in this Court upon a Petition for Admission, in\n form and substance prescribed by subsection (b) of this\n Rule, after paying the admission fee, taking the proper\n oath, and signing the Roll of Attorneys Admitted to the\n Bar of the United States District Court for the District of\n Connecticut.\n\nSubsection (d) also regulates the admission of visiting attorneys by motion. The\n\nDistrict of Connecticut thus does not require attorneys appearing before it to be\n\nlicensed to practice in Connecticut state courts.\n\n The ability of federal courts to regulate those who appear before them\n\ncannot be controlled by state law. “The two judicial systems of courts, the state\n\njudicatures and the federal judiciary, have autonomous control over the conduct\n\nof their officers, among whom . . . lawyers are included.” Theard v. United States,\n\n354 U.S. 278, 281 (1957) (lawyers admitted to practice in federal court are not\n\nautomatically disbarred when the state disbars them); see United States v. Dinitz,\n\n538 F.2d 1214, 1219 (5th Cir. 1976) (“Since attorneys are officers of the courts\n\nbefore which they appear, such courts are necessarily vested with the authority,\n\nwithin certain limits, to control attorneys’ conduct.”). Both we and the Supreme\n\n\n 14\n\fCourt have recognized those principles.\n\n In Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir. 1966), we had to\n\ndetermine whether a California lawyer who represented a client in federal court\n\nin New York, but was not admitted to practice law in either New York state\n\ncourts or in the federal district court, could recover attorney’s fees from his client.\n\nThe client, who was trying to avoid paying his former lawyer, argued that, under\n\nthe circumstances of the case, the New York courts would refuse to grant\n\nrecovery to the lawyer. Id. at 165. We rejected that argument, however, holding\n\nthat “it is within the power of the federal government to determine who will be\n\npermitted to practice in its courts and that this includes allowing compensation\n\nfor services rendered in regard to litigation in the federal courts,” even when the\n\nattorney would not be able to recover in state court. Id. That is so because “the\n\nrules of the federal courts concerning admission of attorneys have long\n\nrecognized that experts in federal law should be permitted, when appropriate, to\n\nconduct litigation in the federal courts regardless of whether they have been\n\nadmitted to practice in the state in which the court sits.” Id. at 166.\n\n The Supreme Court itself has recognized the same principle. In Sperry v.\n\nState of Florida ex rel. Florida Bar, 373 U.S. 379, 381 (1963), the plaintiff was a\n\n\n 15\n\fFlorida resident registered to practice before the United States Patent Office\n\n(“USPO”), but not admitted to practice law in Florida, or indeed in any other\n\nstate. The Florida Bar instituted proceedings against him in the Supreme Court of\n\nFlorida, alleging that he was engaged in the unauthorized practice of law because\n\nalthough he was not a member of the Florida Bar, he, inter alia, maintained an\n\noffice in Florida, held himself out to the public as a Patent Attorney, represented\n\nFlorida clients before the USPO, and rendered opinions as to patentability. Id.\n\nThe Florida Bar sought to enjoin the plaintiff from performing such acts within\n\nthe state. Id. The Supreme Court of Florida concluded that the plaintiff’s conduct\n\ndid constitute the unauthorized practice of law, which the state could properly\n\nprohibit acting under its police power, and that neither federal statute nor the\n\nfederal Constitution “empowered any federal body to authorize such conduct in\n\nFlorida.” Id. at 382.\n\n The United States Supreme Court reversed, holding that Congress had\n\nprovided the Commissioner of Patents with the ability to prescribe regulations\n\ngoverning the recognition and conduct of agents, attorneys, and other persons\n\nrepresenting applicants before the Patent Office. Id. at 384, 404. The Court\n\nreasoned that “registration in the Patent Office confers a right to practice before\n\n\n 16\n\fthe Office without regard to whether the State within which the practice is\n\nconducted would otherwise prohibit such conduct.” Id. at 388. See also Servidone\n\nConstr. Corp. v. St. Paul Fire & Marine Ins. Co., 911 F. Supp. 560, 574 (N.D.N.Y.\n\n1995) (“There is, of course, no question that the right to practice in federal court\n\nincludes the right to appear there not withstanding state laws which regulate the\n\npractice of law.”) (citation omitted).\n\n Federal courts routinely regulate who can appear in federal court (and\n\nhow they can appear) in ways that promote efficient court administration and the\n\norderly administration of justice without infringing on state-created substantive\n\nrights. See, e.g., Merchant Cash & Capital, LLC v. Progressive Rent A Car, Inc., 16 Civ.\n\n3720 (AMD) (VMS), 2018 WL 4268908, at *2–3 (E.D.N.Y. Aug. 15, 2018) (applying\n\nfederal law to conclude that a pro se plaintiff could not represent a corporation\n\nwhile applying New York law to the underlying substantive claims); Avent v.\n\nState Farm Fire and Cas. Co., No. 5:16-CV-278-BO, 2017 WL 4171971, at *2\n\n(E.D.N.C. Sept. 20, 2017) (noting that pro se plaintiff attempting to litigate on\n\nbehalf of estate would need to show that she is the only beneficiary of the estate\n\nand that the estate has no creditors); Georgiades v. Martin-Trigona, 729 F.2d 831,\n\n834 (D.C. Cir. 1984) (applying federal law to conclude that the defendant’s son,\n\n\n 17\n\fwho was not a lawyer, could not be admitted to represent the defendant).\n\n Similarly, several federal courts have explicitly concluded that § 1654 is a\n\nprocedural rule, and have therefore applied it notwithstanding contrary state\n\nlaw. See, e.g., United States v. Louisiana, 751 F. Supp. 608, 614 (E.D. La. 1990) (“As a\n\nfederal court of competent jurisdiction over this case . . . this Court has both the\n\nfederal statutory and inherent judicial power to resolve who may be permitted to\n\nappear before it and how appearances before it may be conducted. . . . Thus,\n\nneither state statutes nor state courts can be dispositive of any dispute over\n\nrepresentation of a party in this federal court case.”); Western Life Ins. Co. v.\n\nNanney, 296 F. Supp. 432, 440 (E.D. Tenn. 1969) (“[N]o provision of Tennessee law\n\nregulating the practice of law in the state courts could obstruct in any way such\n\npractice under the rules of a federal court, 28 U.S.C. § 1654. In the light of any\n\nincompatibility between Tennessee law and the aforecited federal statute, state\n\nlaw must yield to the federal legislation.”).\n\n Connecticut’s substantive law will not be affected by permitting Pappas to\n\nfile motions, conduct depositions, or represent the estate at trial. Nothing about\n\nConnecticut’s rule disallowing pro se litigants from representing an estate, or\n\nabout the reasoning of Ellis, indicates to us that the rule advances any important\n\n\n 18\n\fConnecticut policy other than the orderly administration of its own court system.\n\nMoreover, the district court erred in distinguishing Guest as a case “decided\n\nunder New York law.” Pappas, 2017 WL 6629298, at *3. As documented above,\n\nthe ruling in Guest was based on federal law.\n\n Allowing a pro se plaintiff to represent an estate does come with its own set\n\nof concerns. As we explained in Guest, 603 F.3d at 20, and in other cases, see e.g.,\n\nJones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983), litigation by a\n\nnon-lawyer creates unusual burdens not only for the party she represents but\n\nalso for her adversaries and the court. But that a pro se plaintiff may have\n\ndifficulty navigating the complex legal process and that it may pose an extra\n\nburden on the court, gives us no reason to believe that this federal rule\n\nencroaches on any Connecticut substantive law, would give rise to forum\n\nshopping, or would occasion the inequitable administration of the laws. See\n\nHanna, 380 U.S. at 468. The rule pertains solely to the orderly conduct of litigation\n\nbefore the federal court, and does not regulate the conduct of persons in the\n\ncommunity. It is procedural—not substantive—and therefore a matter of federal\n\nlaw even in a diversity case.\n\n\n\n\n 19\n\fIV. Other Claims\n\n The district court dismissed Pappas’s loss of spousal consortium claim,\n\nand Cassandra’s and Markos’s loss of parental consortium claims, solely on the\n\nground that those claims were derivative of the CPLA claim, which was\n\ndismissed due to Pappas’s pro se status. Our reversal of the dismissal of the CPLA\n\nclaim necessarily reinstates the derivative consortium claims.\n\n Pappas makes no arguments on appeal with regard to the district court’s\n\ndismissal of her CUTPA and NIED claims as time-barred. She has therefore\n\nabandoned those claims, and we accordingly affirm their dismissal.\n\n CONCLUSION\n\n For the reasons stated above, we VACATE the judgment of the district\n\ncourt, insofar as it dismissed Pappas’s claims under the CPLA and the derivative\n\nconsortium claims, and AFFIRM the order of the district court, insofar as it\n\ndismissed Pappas’s other claims on statute of limitations grounds.\n\n\n\n\n 20", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4366969/", "author_raw": "GERARD E. LYNCH, Circuit Judge:"}]} | LYNCH | HALL | ENGELMAYER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4589716/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: Hazel B. PAPPAS, Individually and as Administratix and Sole Beneficiary of the Estate of James Pappas, Cassandra Pappas, Markos Pappas, Plaintiffs-Appellants, v. PHILIP MORRIS, INC., AKA Philip Morris USA, AKA Philip Morris USA Inc., Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-3842-cv\nPappas v. Philip Morris, Inc.\n\n\n\n UNITED STATES COURT OF APPEALS\n FOR THE SECOND CIRCUIT\n\n\n\n August Term, 2018\n\n Submitted: November 5, 2018 Decided: February 12, 2019\n\n Docket No. 17-3842-cv\n\n\n\n HAZEL B. PAPPAS, INDIVIDUALLY AND AS ADMINISTRATIX AND SOLE BENEFICIARY OF\n THE ESTATE OF JAMES PAPPAS, CASSANDRA PAPPAS, MARKOS PAPPAS,\n\n\n Plaintiffs-Appellants,\n\n — v. —\n\n PHILIP MORRIS, INC., AKA PHILIP MORRIS USA, AKA PHILIP MORRIS USA INC.,\n\n Defendant-Appellee.\n\n\n\n\nB e f o r e:\n\n LYNCH and HALL, Circuit Judges, and ENGELMAYER, District Judge.*\n\n\n\n\n Hazel B. Pappas, pro se, seeks to pursue several Connecticut state-law\nliability claims against Philip Morris, Inc., on behalf of the estate of her late\n\n\n*\n Judge Paul A. Engelmayer, of the United States District Court for the Southern\nDistrict of New York, sitting by designation.\n\fhusband, who died of respiratory and heart diseases after years of smoking\nMarlboro cigarettes. The district court dismissed certain of Pappas’s claims,\nholding that Connecticut law would not allow her to represent the estate pro se,\nand dismissed her other claims on the ground that they were barred by the\nstatute of limitations. The order of the district court is AFFIRMED in part and\nVACATED in part, and the case is REMANDED for further proceedings.\n\n\n\n\n Hazel B. Pappas, pro se, Cassandra Pappas, pro se, New Haven,\n CT; Markos Pappas, pro se, Berlin, NH, for Plaintiffs-\n Appellants.\n\n Keri L. Arnold, Arnold & Porter Kaye Scholer LLP, New York,\n NY; Paul W. Rodney, Arnold & Porter Kaye Scholer\n LLP, Denver, CO, for Defendant-Appellee.\n\n\n\nGERARD E. LYNCH, Circuit Judge:\n\n Plaintiff-Appellant Hazel B. Pappas (“Pappas”) seeks to bring several\n\nConnecticut law claims, pro se, against Defendant-Appellee Philip Morris, Inc.\n\n(“Philip Morris”), on behalf of the estate of her late husband, who died of\n\nrespiratory and heart diseases after years of smoking Marlboro cigarettes,\n\nmanufactured by Philip Morris. The United States District Court for the District\n\nof Connecticut (Alvin W. Thompson, J.) dismissed Pappas’s complaint, holding\n\nthat certain of her claims were barred by the statute of limitations and that she\n\ncould not bring the remaining claims pro se, since with respect to those claims she\n\n\n 2\n\fwas representing not herself, but the estate of her late husband. Pappas appealed.\n\nFor the reasons that follow, we VACATE the dismissal of Pappas’s claim under\n\nthe Connecticut Product Liability Act (“CPLA”), her derivative claim for loss of\n\nspousal consortium, and the claim of Plaintiffs-Appellants Cassandra and\n\nMarkos Pappas for loss of parental consortium, and REMAND for further\n\nproceedings. We AFFIRM the district court’s order in all other respects.\n\n BACKGROUND\n\n\n Acting pro se, Pappas filed a products liability suit against Philip Morris in\n\nthe district court pursuant to its diversity jurisdiction, asserting claims both on\n\nher own behalf and on behalf of her late husband’s estate, of which she is\n\nAdministratix. She alleges that in or about the late 1950s, her late husband, James\n\nPappas, was lured into cigarette smoking by a marketing strategy and conspiracy\n\namong tobacco companies to glamorize smoking and portray it as a normal and\n\nnon-dangerous part of American culture. For over five decades, James Pappas\n\nsmoked Marlboro cigarettes manufactured by Philip Morris. As a result of\n\nsmoking cigarettes, James Pappas contracted respiratory and heart diseases that\n\nled to his death on June 19, 2013, at the age of 79. In or about March 2016, a\n\nmedical professional informed Pappas that James Pappas’s smoking Marlboro\n\n\n 3\n\fcigarettes caused and aggravated the respiratory and heart disease that killed\n\nhim.\n\n\n On June 15, 2016, Pappas, and her two children with James, Cassandra and\n\nMarkos Pappas, filed a complaint stating claims against Philip Morris for (1)\n\nviolating the CPLA, Conn. Gen. Stat. § 52–572m, et seq., and Connecticut Unfair\n\nTrade Practices Act, Conn. Gen. Stat. § 42–110a, et seq., (“CUTPA”); (2) loss of\n\nspousal consortium; (3) loss of parental consortium; and (4) negligent infliction of\n\nemotional distress (“NIED”). In support of Pappas’s ability to litigate the action\n\npro se, Cassandra and Markos Pappas filed disclaimers of interest in their father’s\n\nestate, and Pappas filed an affidavit stating that to her knowledge James Pappas\n\nhas no known creditors or debtors. As a result, Pappas contends that she is the\n\nsole beneficiary of James Pappas’s estate.\n\n\n The district court held a hearing to determine, among other things,\n\nwhether Pappas could represent the estate pro se. After briefing by the parties, the\n\ndistrict court dismissed Pappas’s, Cassandra’s, and Markos’s complaint under\n\nFed. R. Civ. P. 12(b)(1) and 12(b)(6). Pappas v. Philip Morris USA Inc., No. 3:16-cv-\n\n932(AWT), 2017 WL 6629298 (D. Conn. June 21, 2017).\n\n\n\n\n 4\n\f The district court dismissed Pappas’s CPLA claim, which belongs to James\n\nPappas’s estate, on the ground that Pappas could not bring that claim pro se. The\n\ncourt held that because it was sitting in diversity jurisdiction, it had to apply\n\nConnecticut law to the question of whether Pappas could represent the estate pro\n\nse, and under Ellis v. Cohen, 982 A.2d 1130 (Conn. App. Ct. 2009), she could not\n\ndo so. Ellis explains that under Connecticut law, a litigant may appear pro se only\n\nto represent her own cause, and that individuals may not appear pro se when\n\nthey are suing in a representative capacity. Id. at 1133. The district court rejected\n\nthe applicability of a Second Circuit case, Guest v. Hansen, 603 F.3d 15 (2d Cir.\n\n2010), in which this Court held that the administrator of an estate could represent\n\nthe estate pro se under certain conditions, on the grounds that Guest was decided\n\nunder New York law. The district court also dismissed Pappas’s loss of spousal\n\nconsortium claim, and Cassandra’s and Markos’s loss of parental consortium\n\nclaims, on the ground that those claims were derivative of the dismissed CPLA\n\nclaim.\n\n\n The district court also dismissed the CUTPA claims and NIED claims as\n\ntime-barred by their respective three- and two-year statutes of limitations. The\n\ndistrict court further ruled that, even if the CUTPA claims were not time-barred,\n\n\n 5\n\fPappas’s CUTPA claims would still fail because the CPLA, not CUTPA, provides\n\nthe exclusive remedy under Connecticut law for a party seeking recompense for\n\ninjuries caused by a product defect.\n\n\n Having thus dismissed all the claims in the complaint, the district court\n\nordered the case closed. Pappas and her children moved to amend the judgment\n\nunder Fed. R. Civ. P. 59(e), asserting numerous arguments. The district court\n\ndenied the motion. Pappas and her children timely appealed.\n\n DISCUSSION\n\n We write to correct the district court’s error in applying Connecticut law to\n\nthe question of whether Pappas can represent the estate of her late husband pro\n\nse, an issue we review de novo. See Principal Nat’l Life Ins. Co. v. Coassin, 884 F.3d\n\n130, 134 (2d Cir. 2018).\n\nI. The Conflict Between Federal and Connecticut Law\n\n Connecticut law and federal law appear to conflict on the issue of whether\n\nPappas can represent the estate pro se. In Guest, this Court held that a pro se\n\nplaintiff could represent an estate when the plaintiff is the estate’s only\n\nbeneficiary and the estate has no creditors. 603 F.3d at 21. Contrary to the district\n\ncourt’s belief, that holding was not based on New York law. Although the\n\n\n 6\n\fjurisdiction of the Guest Court was based on diversity of citizenship, and the\n\nCourt applied New York law to the substantive issues before it, id. at 21–22, the\n\nportion of the Guest opinion discussing whether the estate could be represented\n\nby a pro se litigant relied exclusively on 28 U.S.C. § 1654 and federal cases\n\ngoverning the practice of law in federal courts, referencing New York law only to\n\nidentify the nature of the substantive claims being pursued. Id. at 20–21.\n\n The Guest holding was rooted in § 1654. That statute provides that “[i]n all\n\ncourts of the United States the parties may plead and conduct their own cases\n\npersonally or by counsel as [permitted] by the rules of such courts, respectively.”\n\n28 U.S.C. § 1654. As the Court explained, § 1654 limits parties to pleading and\n\nconducting their own cases personally, because “the law contains so many\n\nesoteric pitfalls for an untrained advocate . . . that the risk of inadvertent waiver\n\nor abandonment of an issue is too high for us to allow a pro se litigant to represent\n\nanother person.” Guest, 603 F.3d at 20. Nevertheless, the Court continued, when\n\nthe administrator and sole beneficiary of an estate with no creditors seeks to\n\nappear pro se on behalf of the estate, she is in fact appearing solely on her own\n\nbehalf, because she is the only party affected by the disposition of the suit. Id. at\n\n21. Under those circumstances, the assignment of the sole beneficiary’s claims to\n\n\n 7\n\fa paper entity—the estate—rather than to the beneficiary herself, is only a legal\n\nfiction. Id.\n\n Connecticut law apparently provides otherwise. In Connecticut, “a person\n\nwho has not been admitted as an attorney . . . shall not . . . [p]ractice law or\n\nappear as an attorney-at-law for another, in any court of record in [Connecticut],”\n\nConn. Gen. Stat. Ann. § 51–88(a), and Connecticut state courts have interpreted\n\nthat statute to prohibit pro se representation of an estate. See e.g., Milner v. Beckett\n\nCorp., No. HHDCV115035597S, 2012 WL 527628, at *3 (Conn. Super. Ct. Jan. 25,\n\n2012) (“[T]he plaintiff could not, in a pro se capacity, represent his father’s\n\nestate.”); Sedich v. Waynik, No. CV 970348505S, 1998 WL 328043 at *1 (Conn.\n\nSuper. Ct. June 15, 1998) (“An administrator is the personal representative of the\n\nestate and its beneficiaries and cannot bring a suit as a pro se.”) (internal\n\nquotations marks omitted). In Ellis, 982 A.2d at 1133–34, the Appellate Court of\n\nConnecticut held that the executor of an estate has no right of self-representation,\n\nand thus an executor’s pro se appearance in court on behalf of the estate\n\nconstituted the unauthorized practice of law.1 Because Connecticut law and\n\n\n1\n We note that no Connecticut court has addressed the narrow question of\nwhether there is an exception to the rule that a pro se litigant can only represent\nherself, where the pro se litigant seeks to represent an estate that has no creditors\n\n 8\n\ffederal law are in conflict on this point, we must decide which applies in the case\n\nbefore us.\n\nII. The Erie Doctrine\n\n The district court held that it was required to apply Connecticut law on\n\nthis question under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). In Erie,\n\nthe Supreme Court construed the Rules of Decision Act, § 34 of the Judiciary Act\n\nof 1789, which provides that: “[t]he laws of the several states, except where the\n\nConstitution or treaties of the United States or Acts of Congress otherwise\n\nrequire or provide, shall be regarded as rules of decision in civil actions in the\n\ncourts of the United States, in cases where they apply.” 28 U.S.C. § 1652. Erie\n\nstands for the proposition that, as a general matter, a federal district court sitting\n\nin diversity jurisdiction must apply the substantive law of the state in which it sits.\n\nSee Erie, 304 U.S. at 78.\n\n However, the Constitution also vests Congress with the power “[t]o\n\n\n\nand of which she is the only beneficiary. Connecticut cases all state the rule\nbanning pro se litigants from representing anyone other than themselves in\nabsolute terms, see e.g., Expressway Assocs. II v. Friendly Ice Cream Corp. of\nConnecticut, 642 A.2d 62, 64 (Conn. App. Ct. 1994), and we found no case\nsuggesting the existence of any exceptions. Under the circumstances, we assume,\nas do the parties, that the district court correctly interpreted Connecticut law as\nnot recognizing the exception adopted as a matter of federal law in Guest.\n\n 9\n\fconstitute Tribunals inferior to the supreme Court” and “[t]o make all Laws\n\nwhich shall be necessary and proper for carrying into Execution” that power.\n\nU.S. Const. art I, § 8, cls. 9, 18. Thus, while “Congress has no power to declare\n\nsubstantive rules of common law applicable in a state,” Erie, 304 U.S. at 78, “Erie\n\nand its offspring cast no doubt on the long-recognized power of Congress to\n\nprescribe housekeeping rules for federal courts even though some of those rules\n\nwill inevitably differ from comparable state rules,” Hanna v. Plumer, 380 U.S. 460,\n\n473 (1965); see Erie, 304 U.S. at 72–73 (“[T]he purpose of [section 34] was merely to\n\nmake certain that, in all matters except those in which some federal law is controlling,\n\nthe federal courts exercising jurisdiction in diversity of citizenship cases would\n\napply as their rules of decision the law of the state . . . .”) (emphasis added).\n\n Erie and its progeny thus require us to reconcile two different edicts: the\n\ncommand that federal courts must honor applicable state substantive law on the\n\none hand, and the integrity of the federal courts as an independent judicial\n\nsystem on the other. See 19 Charles Alan Wright et al., Fed. Prac. & Proc. Juris.\n\n§ 4501 (3d ed.). Where state and federal law are in conflict, we reconcile those\n\nprinciples by asking whether the federal law or rule “regulate[s] matters\n\nrationally capable of classification as procedure.” Shady Grove Orthopedic Assocs.,\n\n\n 10\n\fP.A. v. Allstate Ins. Co., 559 U.S. 393, 406 (2010) (internal quotation marks\n\nomitted); accord Hanna, 380 U.S. at 472 (“[T]he constitutional provision for a\n\nfederal court system (augmented by the Necessary and Proper clause) . . .\n\nincludes a power to regulate matters which, though falling within the uncertain\n\narea between substance and procedure, are rationally capable of classification as\n\neither.”). Procedure is “the judicial process for enforcing rights and duties\n\nrecognized by substantive law and for justly administering remedy and redress\n\nfor disregard or infraction of them,” Hanna, 380 U.S. at 464, while substantive law\n\nis the law that governs the rights and obligations of individuals within a given\n\njurisdiction, see Shady Grove, 559 U.S. at 407. When deciding what law to apply in\n\nfederal court, we also consider whether disregarding the law that would control\n\nin state court would significantly affect the result of the litigation in federal court.\n\nSee Hanna, 380 U.S. at 466. That “outcome-determination test,” however “cannot\n\nbe read without reference to the twin aims of the Erie rule: discouragement of\n\nforum-shopping and avoidance of inequitable administration of the laws.” Id. at\n\n468.\n\nIII. Federal Law Governs Legal Practice Before the Federal Courts\n\n The district court misread both Erie and Guest in concluding that\n\n\n 11\n\fConnecticut’s rule controlled the circumstances in which a party may appear pro\n\nse in federal court. We now make explicit what was implicit in Guest: that § 1654,\n\nand federal rules interpreting it, are procedural in nature and therefore must be\n\napplied by federal courts in diversity cases. Who may practice law before a\n\nfederal court is a matter of procedure—which Congress and the federal courts\n\nhave the power to regulate—notwithstanding contrary state law.\n\n Federal courts have discretion to adopt such rules as are necessary to carry\n\nout the business of the courts. See Frazier v. Heebe, 482 U.S. 641, 645 (1987); Fed. R.\n\nCiv. P. 83. That authority includes the regulation of admissions to a court’s own\n\nbar. Frazier, 482 U.S. at 645. “The authority to adopt rules relating to admission to\n\npractice before the federal courts was delegated by Congress to the federal courts\n\n[by] Section 35 of the Judiciary Act of 1789 . . . now codified as 28 U.S.C. § 1654.”\n\nBrown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985). Thus, while “attorneys\n\npracticing in federal court are charged with . . . the duty to conform to the state\n\ncode of professional responsibility,” Shabbir v. Pakistan Int’l Airlines, 443 F. Supp.\n\n2d 299, 306 (E.D.N.Y. 2005), district courts have the “right and duty . . . to\n\nregulate the proceedings and the counsel who come before [them],” In re\n\nSeptember 11 Litig., 236 F.R.D. 164, 172 (S.D.N.Y. 2006).\n\n\n 12\n\f The Seventh Circuit said as much in Elustra v. Mineo, 595 F.3d 699 (7th Cir.\n\n2010). In Elustra, the Court had to determine the validity of a motion filed by a\n\nnon-lawyer mother on behalf of her minor and adult daughters, after the\n\ndaughters’ lawyers had been discharged. Id. at 703–04. The Court recognized that\n\nits first decision was whether it should look to state or federal law to resolve the\n\nproblem. Id. at 704. It noted that, “[o]n the one hand, Fed. R. Civ. P. 17(b)\n\nprovides that ‘capacity to sue’ is defined by state law.” Id. But, on the other hand,\n\nfederal courts are entitled to use their own procedures, whether jurisdiction is\n\nbased on a federal question or on another ground such as diversity of citizenship\n\nor supplemental jurisdiction. Id. The Court noted that the validity of a motion\n\nfiled by a non-attorney representative had “less to do with the capacity to sue\n\nthan it does with the right to act in court, which is normally a matter regulated by\n\nthe rules of professional conduct.” Id. Because “[f]ederal courts have the inherent\n\nauthority to adopt their own rules . . . federal law [] dictate[d] whether [the\n\nmother] was entitled to act for one or more of her three daughters in the way that\n\nshe did.” Id.\n\n Indeed, district courts regulate, by means of their local rules, who may\n\npractice before them. For example, District of Connecticut Local Civil Rule 83.1 is\n\n\n 13\n\ftitled “Admission of Attorneys.” Its subsection (a) states that:\n\n Any attorney of the Bar of the State of Connecticut or of\n the bar of any United States District Court, whose\n professional character is good, may be admitted to\n practice in this Court upon a Petition for Admission, in\n form and substance prescribed by subsection (b) of this\n Rule, after paying the admission fee, taking the proper\n oath, and signing the Roll of Attorneys Admitted to the\n Bar of the United States District Court for the District of\n Connecticut.\n\nSubsection (d) also regulates the admission of visiting attorneys by motion. The\n\nDistrict of Connecticut thus does not require attorneys appearing before it to be\n\nlicensed to practice in Connecticut state courts.\n\n The ability of federal courts to regulate those who appear before them\n\ncannot be controlled by state law. “The two judicial systems of courts, the state\n\njudicatures and the federal judiciary, have autonomous control over the conduct\n\nof their officers, among whom . . . lawyers are included.” Theard v. United States,\n\n354 U.S. 278, 281 (1957) (lawyers admitted to practice in federal court are not\n\nautomatically disbarred when the state disbars them); see United States v. Dinitz,\n\n538 F.2d 1214, 1219 (5th Cir. 1976) (“Since attorneys are officers of the courts\n\nbefore which they appear, such courts are necessarily vested with the authority,\n\nwithin certain limits, to control attorneys’ conduct.”). Both we and the Supreme\n\n\n 14\n\fCourt have recognized those principles.\n\n In Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir. 1966), we had to\n\ndetermine whether a California lawyer who represented a client in federal court\n\nin New York, but was not admitted to practice law in either New York state\n\ncourts or in the federal district court, could recover attorney’s fees from his client.\n\nThe client, who was trying to avoid paying his former lawyer, argued that, under\n\nthe circumstances of the case, the New York courts would refuse to grant\n\nrecovery to the lawyer. Id. at 165. We rejected that argument, however, holding\n\nthat “it is within the power of the federal government to determine who will be\n\npermitted to practice in its courts and that this includes allowing compensation\n\nfor services rendered in regard to litigation in the federal courts,” even when the\n\nattorney would not be able to recover in state court. Id. That is so because “the\n\nrules of the federal courts concerning admission of attorneys have long\n\nrecognized that experts in federal law should be permitted, when appropriate, to\n\nconduct litigation in the federal courts regardless of whether they have been\n\nadmitted to practice in the state in which the court sits.” Id. at 166.\n\n The Supreme Court itself has recognized the same principle. In Sperry v.\n\nState of Florida ex rel. Florida Bar, 373 U.S. 379, 381 (1963), the plaintiff was a\n\n\n 15\n\fFlorida resident registered to practice before the United States Patent Office\n\n(“USPO”), but not admitted to practice law in Florida, or indeed in any other\n\nstate. The Florida Bar instituted proceedings against him in the Supreme Court of\n\nFlorida, alleging that he was engaged in the unauthorized practice of law because\n\nalthough he was not a member of the Florida Bar, he, inter alia, maintained an\n\noffice in Florida, held himself out to the public as a Patent Attorney, represented\n\nFlorida clients before the USPO, and rendered opinions as to patentability. Id.\n\nThe Florida Bar sought to enjoin the plaintiff from performing such acts within\n\nthe state. Id. The Supreme Court of Florida concluded that the plaintiff’s conduct\n\ndid constitute the unauthorized practice of law, which the state could properly\n\nprohibit acting under its police power, and that neither federal statute nor the\n\nfederal Constitution “empowered any federal body to authorize such conduct in\n\nFlorida.” Id. at 382.\n\n The United States Supreme Court reversed, holding that Congress had\n\nprovided the Commissioner of Patents with the ability to prescribe regulations\n\ngoverning the recognition and conduct of agents, attorneys, and other persons\n\nrepresenting applicants before the Patent Office. Id. at 384, 404. The Court\n\nreasoned that “registration in the Patent Office confers a right to practice before\n\n\n 16\n\fthe Office without regard to whether the State within which the practice is\n\nconducted would otherwise prohibit such conduct.” Id. at 388. See also Servidone\n\nConstr. Corp. v. St. Paul Fire & Marine Ins. Co., 911 F. Supp. 560, 574 (N.D.N.Y.\n\n1995) (“There is, of course, no question that the right to practice in federal court\n\nincludes the right to appear there not withstanding state laws which regulate the\n\npractice of law.”) (citation omitted).\n\n Federal courts routinely regulate who can appear in federal court (and\n\nhow they can appear) in ways that promote efficient court administration and the\n\norderly administration of justice without infringing on state-created substantive\n\nrights. See, e.g., Merchant Cash & Capital, LLC v. Progressive Rent A Car, Inc., 16 Civ.\n\n3720 (AMD) (VMS), 2018 WL 4268908, at *2–3 (E.D.N.Y. Aug. 15, 2018) (applying\n\nfederal law to conclude that a pro se plaintiff could not represent a corporation\n\nwhile applying New York law to the underlying substantive claims); Avent v.\n\nState Farm Fire and Cas. Co., No. 5:16-CV-278-BO, 2017 WL 4171971, at *2\n\n(E.D.N.C. Sept. 20, 2017) (noting that pro se plaintiff attempting to litigate on\n\nbehalf of estate would need to show that she is the only beneficiary of the estate\n\nand that the estate has no creditors); Georgiades v. Martin-Trigona, 729 F.2d 831,\n\n834 (D.C. Cir. 1984) (applying federal law to conclude that the defendant’s son,\n\n\n 17\n\fwho was not a lawyer, could not be admitted to represent the defendant).\n\n Similarly, several federal courts have explicitly concluded that § 1654 is a\n\nprocedural rule, and have therefore applied it notwithstanding contrary state\n\nlaw. See, e.g., United States v. Louisiana, 751 F. Supp. 608, 614 (E.D. La. 1990) (“As a\n\nfederal court of competent jurisdiction over this case . . . this Court has both the\n\nfederal statutory and inherent judicial power to resolve who may be permitted to\n\nappear before it and how appearances before it may be conducted. . . . Thus,\n\nneither state statutes nor state courts can be dispositive of any dispute over\n\nrepresentation of a party in this federal court case.”); Western Life Ins. Co. v.\n\nNanney, 296 F. Supp. 432, 440 (E.D. Tenn. 1969) (“[N]o provision of Tennessee law\n\nregulating the practice of law in the state courts could obstruct in any way such\n\npractice under the rules of a federal court, 28 U.S.C. § 1654. In the light of any\n\nincompatibility between Tennessee law and the aforecited federal statute, state\n\nlaw must yield to the federal legislation.”).\n\n Connecticut’s substantive law will not be affected by permitting Pappas to\n\nfile motions, conduct depositions, or represent the estate at trial. Nothing about\n\nConnecticut’s rule disallowing pro se litigants from representing an estate, or\n\nabout the reasoning of Ellis, indicates to us that the rule advances any important\n\n\n 18\n\fConnecticut policy other than the orderly administration of its own court system.\n\nMoreover, the district court erred in distinguishing Guest as a case “decided\n\nunder New York law.” Pappas, 2017 WL 6629298, at *3. As documented above,\n\nthe ruling in Guest was based on federal law.\n\n Allowing a pro se plaintiff to represent an estate does come with its own set\n\nof concerns. As we explained in Guest, 603 F.3d at 20, and in other cases, see e.g.,\n\nJones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983), litigation by a\n\nnon-lawyer creates unusual burdens not only for the party she represents but\n\nalso for her adversaries and the court. But that a pro se plaintiff may have\n\ndifficulty navigating the complex legal process and that it may pose an extra\n\nburden on the court, gives us no reason to believe that this federal rule\n\nencroaches on any Connecticut substantive law, would give rise to forum\n\nshopping, or would occasion the inequitable administration of the laws. See\n\nHanna, 380 U.S. at 468. The rule pertains solely to the orderly conduct of litigation\n\nbefore the federal court, and does not regulate the conduct of persons in the\n\ncommunity. It is procedural—not substantive—and therefore a matter of federal\n\nlaw even in a diversity case.\n\n\n\n\n 19\n\fIV. Other Claims\n\n The district court dismissed Pappas’s loss of spousal consortium claim,\n\nand Cassandra’s and Markos’s loss of parental consortium claims, solely on the\n\nground that those claims were derivative of the CPLA claim, which was\n\ndismissed due to Pappas’s pro se status. Our reversal of the dismissal of the CPLA\n\nclaim necessarily reinstates the derivative consortium claims.\n\n Pappas makes no arguments on appeal with regard to the district court’s\n\ndismissal of her CUTPA and NIED claims as time-barred. She has therefore\n\nabandoned those claims, and we accordingly affirm their dismissal.\n\n CONCLUSION\n\n For the reasons stated above, we VACATE the judgment of the district\n\ncourt, insofar as it dismissed Pappas’s claims under the CPLA and the derivative\n\nconsortium claims, and AFFIRM the order of the district court, insofar as it\n\ndismissed Pappas’s other claims on statute of limitations grounds.\n\n\n\n\n 20\n[END_CASE]",
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4,590,627 | Tanvir v. Tanzin | 2019-02-14 | 16-1176 | U.S. Court of Appeals for the Second Circuit | {"judges": "PRESENT: ROBERT A. KATZMANN, Chief Judge, DENNIS JACOBS, JOSÉ A. CABRANES, ROSEMARY S. POOLER, PETER W. HALL, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, CHRISTOPHER F. DRONEY, RICHARD J. SULLIVAN, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "16‐1176 \nTanvir v. Tanzin \n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n \n At a stated term of the United States Court of Appeals for the Second \nCircuit, held at the Thurgood Marshall United States Courthouse, 40 Foley \nSquare, in the City of New York, on the fourteenth day of February, two \nthousand nineteen. \n \nPRESENT: \n ROBERT A. KATZMANN, \n Chief Judge, \n DENNIS JACOBS, \n JOSÉ A. CABRANES, \n ROSEMARY S. POOLER, \n PETER W. HALL, \n DENNY CHIN, \n RAYMOND J. LOHIER, JR., \n SUSAN L. CARNEY, \n CHRISTOPHER F. DRONEY, \n RICHARD J. SULLIVAN, \n Circuit Judges. \n \n \nMUHAMMAD TANVIR, JAMEEL ALGIBHAH, \nNAVEED SHINWARI, \n \n Plaintiffs‐Appellants, \n \n v. No. 16‐1176 \n \nFNU TANZIN, Special Agent, FBI; SANYA \nGARCIA, Special Agent, FBI; JOHN LNU, Special \nAgent, FBI; FRANCISCO ARTUSA, Special Agent, \n\n\n Circuit Judge Debra Ann Livingston recused herself from these proceedings. \n 1 \n \n\nFBI; JOHN C. HARLEY III, Special Agent, FBI; \nSTEVEN LNU, Special Agent, FBI; MICHAEL \nLNU, Special Agent, FBI; GREGG GROSSOEHMIG, \nSpecial Agent, FBI; WEYSAN DUN, Special Agent \nin Charge, FBI; JAMES C. LANGENBERG, Assistant \nSpecial Agent in Charge, FBI; JOHN DOE #1, Special \nAgent, FBI; JOHN DOE #2, Special Agent, FBI; JOHN \nDOE #3, Special Agent, FBI; JOHN DOE #4, Special \nAgent, FBI; JOHN DOE #5, Special Agent, FBI; \nJOHN DOE #6, Special Agent, FBI, \n \n Defendants‐Appellees. \n \n \n \nFor Plaintiffs‐Appellants: RAMZI KASSEM (Naz Ahmad, on the \n brief), CLEAR Project, Main Street Legal \n Services, Inc., City University of New \n York School of Law, Long Island City, \n NY. \n \n Jennifer R. Cowan, Erol Gulay, Sandy \n Tomasik, Debevoise & Plimpton LLP, \n New York, NY. \n \n Shayana D. Kadidal, Baher Azmy, \n Center for Constitutional Rights, New \n York, NY. \n \nFor Defendants‐Appellees: ELLEN BLAIN, Assistant United States \n Attorney (Benjamin H. Torrance, \n Assistant United States Attorney, on the \n brief), for Geoffrey S. Berman, United \n States Attorney for the Southern \n District of New York, New York, NY. \n \n\n 2 \n \n\n \n Following disposition of this appeal on June 25, 2018, an active judge of the \nCourt requested a poll on whether to rehear the case en banc. A poll having been \nconducted and there being no majority favoring en banc review, rehearing en banc \nis hereby DENIED. \n \n Rosemary S. Pooler, Circuit Judge, joined by Robert A. Katzmann, Chief", "author": "Chief Judge"}, {"type": "concurrence", "text": "Judge, concurs by opinion in the denial of rehearing en banc. \n \n Dennis Jacobs, Circuit Judge, joined by José A. Cabranes and Richard J.", "author": "Judge"}, {"type": "dissent", "text": "Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc. \n \n José A. Cabranes, Circuit Judge, joined by Dennis Jacobs and Richard J.", "author": "Sullivan"}, {"type": "dissent", "author": "Sullivan", "text": "Sullivan, Circuit Judges, dissents by opinion from the denial of rehearing en banc. \n \n FOR THE COURT: \n CATHERINE O’HAGAN WOLFE, CLERK \n \n\n\n\n\n 3 \n \n\nROBERT A. KATZMANN, Chief Judge, and ROSEMARY S. POOLER, Circuit"}, {"author": "Judge, concurring", "type": "concurrence", "text": "Judge, concurring in the denial of rehearing en banc:1 \n \n Our dissenting colleagues do their level best to disguise the panel’s \n\nopinion as an extension of Bivens v. Six Unknown Named Agents of Federal Bureau \n\nof Narcotics, 403 U.S. 388 (1971). They claim that despite the Supreme Court’s \n\nrecent decisions restraining Bivens actions, the panel’s opinion effectively dabbles \n\nin the now‐forbidden practice of implying private rights of action. Dissent from \n\nthe Denial of Rehearing En Banc (Jacobs, J.), slip op. at 5; Dissent from the Denial \n\nof Rehearing En Banc (Cabranes, J.), slip op. at 1‐2. But these arguments deny an \n\nincontrovertible truth: the panel’s opinion does not imply a private right of \n\naction. To the contrary, RFRA contains an express private right of action with an \n\nexpress provision for “appropriate relief.” See 42 U.S.C. § 2000bb‐1(c).2 The panel \n\nopinion interprets RFRA’s express private right of action to support a damages \n\n1 Pursuant to Second Circuit En Banc Protocol 12, Judge Gerard E. Lynch, although a \nmember of the panel that decided this case, is a Senior Judge and thus may not report \nhis views on the petition for rehearing en banc. \n \n2 RFRA’s private right of action in its entirety states: \n\n \n A person whose religious exercise has been burdened in violation of this \n section may assert that violation as a claim or defense in a judicial \n proceeding and obtain appropriate relief against a government. Standing \n to assert a claim or defense under this section shall be governed by the \n general rules of standing under article III of the Constitution. \n \n42 U.S.C. § 2000bb‐1(c). \n\nremedy where appropriate—a conclusion based on principles of statutory \n\ninterpretation that Bivens and its progeny do not touch. \n\n Separation of powers considerations compel the judiciary to exercise \n\n“caution with respect to actions in the Bivens context, where [an] action is \n\nimplied to enforce the Constitution itself.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 \n\n(2017). Undoubtedly, the Supreme Court’s hesitancy to apply Bivens to new \n\ncontexts reflect a concern for judicial absorption of legislative power: “[T]he \n\ninquiry must concentrate on whether the Judiciary is well suited, absent \n\ncongressional action or instruction, to consider and weigh the costs and benefits \n\nof allowing a damages action to proceed.” Id. at 1857‐58. The Court suggests that \n\nCongress is typically the best‐suited institution to resolve the “host of \n\nconsiderations that must be weighed and appraised” in deciding whether a \n\nremedy for constitutional or statutory rights exists. Id. at 1857 (internal quotation \n\nmarks omitted). \n\n But despite our dissenting colleagues’ protests, the Court’s reasoning in \n\nZiglar is inapplicable to the question of whether Congress’s provision in RFRA \n\nfor litigants to “obtain appropriate relief against a government,” 42 U.S.C. § \n\n2000bb‐1(c), contemplates a damages remedy. Franklin v. Gwinnett Cty. Pub. Schs., \n\n\n\n 2 \n \n\n503 U.S. 60, 65‐66 (1992) (“[T]he question of what remedies are available under a \n\nstatute that provides a private right of action is analytically distinct from the \n\nissue of whether such a right exists in the first place.” (internal quotation marks \n\nomitted)). In the context of an implied remedy, the Ziglar Court instructed that \n\nthe answer to this question is that Congress typically decides “whether to \n\nprovide for a damages remedy.” 137 S. Ct. at 1857. This truism recognizes that \n\nthe judiciary’s power to impose liability by creating a private right of action vis‐\n\nà‐vis Congress’s silence is modest. See, e.g., Cort v. Ash, 422 U.S. 66, 78 (1975) \n\n(defining four searching requirements for implying a private right of action). By \n\ncontrast, in the context of a private right of action, Congress has already spoken \n\nto impose liability and thereby bestows the judiciary with greater power to effect \n\na remedy. E.g., Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is . . . well settled that \n\nwhere legal rights have been invaded, and a federal statute provides for a \n\ngeneral right to sue for such invasion, federal courts may use any available \n\nremedy to make good the wrong done.”). The role of the court in this case is \n\ndifferent because implying a right of action is a judicially constructed remedy, \n\nwhereas interpreting a statute to provide a damages remedy is a time‐honored \n\n\n\n\n 3 \n \n\nexercise of the judiciary’s power to grant relief where Congress has legislated \n\nliability. \n\n This makes sense. While it would upset the separation of powers for \n\nfederal courts “to award remedies when the Constitution or laws of the United \n\nStates do not support a cause of action,” if federal courts declined to recognize \n\nremedies for express causes of action, it “would harm separation of powers \n\nprinciples in another way, by giving judges the power to render inutile causes of \n\naction authorized by Congress.” Franklin, 503 U.S. at 74. Thus, the opinion, rather \n\nthan narrowly skirting the Supreme Court’s Bivens jurisprudence (as the dissents \n\nfrom rehearing darkly imply), recognizes the Court’s power where separation of \n\npowers concerns are weakest. \n\n It is therefore axiomatic that the judiciary’s interpretation of “appropriate \n\nrelief” as prescribed in an express right of action is not akin to a Bivens action. \n\nUnlike a Bivens action, where the Court itself implies a cause of action, Tanvir \n\nconsiders the scope of an express right of action with an express provision of \n\nremedies from Congress. This distinction is critical, and no sleight of the law can \n\nelide Bivens and the judiciary’s power to interpret statutes. \n\n\n\n\n 4 \n \n\n The opinion stands on its own to address the dissents’ remaining \n\narguments. We write separately merely to expose the dissents’ Bivens accusations \n\nas a red herring. \n\n\n\n\n 5 \n \n\nDENNIS JACOBS, Circuit Judge, joined by JOSÉ A. CABRANES and RICHARD J.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367880/", "author_raw": "Judge, concurring"}, {"author": "SULLIVAN, Circuit Judges, dissenting", "type": "dissent", "text": "SULLIVAN, Circuit Judges, dissenting from the denial of rehearing en banc: \n \n Plaintiffs allege that they were placed on the national “No Fly List,” \n\nthough they posed no threat to aviation, in retaliation for their refusal to become \n\nFBI informants reporting on fellow Muslims. The claim is that the retaliation \n\nthey suffered substantially burdened their exercise of religion, in violation of the \n\nReligious Freedom Restoration Act (“RFRA”), because their refusal was \n\ncompelled by Muslim tenets. \n\n The sufficiency of such a claim is not at issue on appeal; so the only issue is \n\nwhether RFRA affords a money‐damages remedy against federal officers sued in \n\ntheir individual capacities. The panel opinion argues that: the statute permits \n\n“appropriate relief against a government”; a government is defined to include “a \n\nbranch, department, agency, instrumentality, and official (or other person acting \n\nunder color of law)”; money damages is presumptively “appropriate relief”; and \n\ntherefore money damages is appropriate relief against individual officers. \n\n Because the panel’s reasoning fails as a matter of law and logic and runs \n\ncounter to clear Supreme Court guidance on this subject, I would grant in banc \n\nreview and reverse the panel’s erroneous creation of a right to money damages \n\nunder RFRA. Indeed, the panel’s expansive conclusion could be viewed without \n\n 1 \n \n\nalarm only by people (judges and law clerks) who enjoy absolute immunity from \n\nsuch suits. \n\n I \n \n RFRA states in relevant part that “[a] person whose religious exercise has \n\nbeen burdened in violation of this section may assert that violation as a claim or \n\ndefense in a judicial proceeding and obtain appropriate relief against a \n\ngovernment.” 42 U.S.C. § 2000bb‐1(c). As to whether this statute affords a \n\nmoney‐damages remedy against individual federal officers, precedent points the \n\nway with graphic simplicity. \n\n This Court has already decided the scope of an identical private right of \n\naction in the Religious Land Use and Institutionalized Persons Act of 2000 \n\n(“RLUIPA”). RLUIPA and RFRA alike forbid substantial burdens on religious \n\nexercise: RLUIPA applies to the states, while RFRA applies to the federal \n\ngovernment. We held that the phrase “appropriate relief against a government” \n\nin RLUIPA does not create a private right of action against state officials sued in \n\ntheir individual capacities. Washington v. Gonyea, 731 F.3d 143, 146 (2d Cir. 2013). \n\nWashington is fully consistent with the Supreme Court’s ruling that RLUIPA does \n\n\n\n\n 2 \n \n\nnot authorize private suits for money damages against the states themselves. \n\nSossamon v. Texas, 563 U.S. 277, 293 (2011). \n\n The district court followed these precedents. The panel opinion labors to \n\ndistinguish them. To distinguish Washington and Sossamon, the panel opinion \n\nemphasizes that they were informed by Congress’s Spending Clause powers and \n\nby state sovereign immunity (respectively), considerations not present here. But \n\nin Sossamon, the Supreme Court relied not on sovereign immunity alone, but on \n\nthe plain meaning of the text. The Court explained that the phrase “appropriate \n\nrelief” takes its meaning from “context.” Sossamon, 563 U.S. at 286. In RLUIPA \n\n(as in RFRA) the context is clear: the full phrase is “appropriate relief against a \n\ngovernment.” As the Supreme Court explained, “[t]he context here‐‐where the \n\ndefendant is a sovereign‐‐suggests, if anything, that monetary damages are not \n\n‘suitable’ or ‘proper.’” Id. Given that RFRA and RLUIPA attack the same wrong, \n\nin the same way, in the same words, it is implausible that “appropriate relief \n\nagainst a government” means something different in RFRA, and includes money \n\ndamages. \n\n As the panel opinion concedes, “RLUIPA borrows . . . an express private \n\ncause of action that is taken from RFRA”; “[a]s a result, courts commonly apply \n\n\n\n 3 \n \n\nRFRA case law to issues arising under RLUIPA and vice versa.” Op. 31 n.8 \n\n(internal quotation marks omitted). And the holding in Washington‐‐that \n\nRLUIPA creates no private right of action against state officials in their \n\nindividual capacities‐‐was reached “as a matter of statutory interpretation.” 731 \n\nF.3d at 146. \n\n The panel opinion deems it significant that RFRA’s definition of \n\n“government” includes an “official (or other person acting under color of law).” \n\nThe use of language similar to that found in 42 U.S.C. § 1983, the panel argues, \n\nsuggests personal liability for money damages under RFRA. This argument is \n\nself‐defeating. First, the inclusion of the word “official” in the definition of \n\n“government” would be required simply to facilitate injunctive relief; it therefore \n\ntells us nothing about damages. Moreover, Congress’s use of a definition similar \n\nto that found in § 1983 only highlights the fact that Congress declined to enact \n\nrelief similar to that found in § 1983. RFRA contains nothing akin to § 1983’s \n\nexplicit endorsement of suits for money damages (“shall be liable to the party \n\ninjured in an action at law, suit in equity, or other proper proceedings for redress \n\n. . .”). Surely this was not a careless oversight. \n\n\n\n\n 4 \n \n\n The panel opinion also fails to account adequately for the limiting term \n\n“appropriate relief,” which “is open‐ended and ambiguous about what types of \n\nrelief it includes.” Sossamon, 563 U.S. at 286. “Far from clearly identifying money \n\ndamages, the word ‘appropriate’ is inherently context‐dependent,” Sossamon, 563 \n\nU.S. at 286, and we must therefore consider what forms of relief may be \n\nappropriate against different persons defined in RFRA as components of \n\ngovernment. \n\n The reading of RLUIPA is easily extended to the reading of RFRA. The \n\nDistrict of Columbia Circuit recognized in Webman v. Fed. Bureau of Prisons, 441 \n\nF.3d 1022, 1026 (D.C. Cir. 2006), that “appropriate relief against a government” in \n\nRFRA does not include money damages against the federal government‐‐just as \n\nthe Supreme Court in Sossamon later read the same wording in RLUIPA to \n\nforeclose a money damages award against a state. I would follow suit, and align \n\nthis case, which considers personal damages awards under RFRA, with our \n\nWashington precedent on personal damages awards under RLUIPA. \n\n As the district court opinion observed, “every other federal statute \n\nidentified by Plaintiffs as recognizing a personal capacity damages action against \n\nfederal officers . . . includes specific reference to the availability of damages.” \n\n\n\n 5 \n \n\nTanvir v. Lynch, 128 F. Supp. 3d 756, 778 (S.D.N.Y. 2015) (subsequent history \n\nomitted). The omission of any such language in RFRA is telling, and in my view \n\nconclusive. \n\n II \n \n Proceeding backwards, the panel opinion observes that RFRA’s legislative \n\nhistory does not evince “a clear and express indication that Congress intended to \n\nexclude individual damages claims from the scope of RFRA’s available relief.” \n\nOp. 55 (emphasis added). Maybe; but the absence of such an indication does not \n\nsupport a positive inference. The opinion’s (lame) conclusion is that it was “at \n\nleast possible at the time that Congress passed RFRA that an individual damages \n\nclaim would have been available for a free exercise violation.” Op. 53. \n\n If a statute imposes personal damages liability against individual federal \n\nofficers, one would expect that to be done explicitly, rather than by indirection, \n\nhint, or negative pregnant. There is no such explicit wording in RFRA because \n\nthe manifest statutory purpose has nothing to do with such a remedy. The \n\nReligious Freedom Restoration Act was enacted to restore religious freedom that \n\nCongress believed had been curtailed by Employment Division v. Smith, 494 U.S. \n\n872 (1990), which held that under the First Amendment no compelling \n\n\n\n 6 \n \n\ngovernment interest is required to justify substantial burdens on religious \n\nexercise imposed by laws of general application. \n\n As the panel opinion concedes, RFRA’s legislative history was “absolutely \n\nclear” that “the act does not expand, contract or alter the ability of a claimant to \n\nobtain relief in a manner consistent with the Supreme Court’s free exercise \n\njurisprudence under the compelling governmental interest test prior to Smith.” \n\nOp. 50 (internal quotation marks omitted). The panel opinion fails to draw the \n\nobvious inference: in the Supreme Court’s free exercise jurisprudence pre‐Smith, \n\nthe Court had never held that damages against the government for First \n\nAmendment violations were available‐‐let alone personal damages against \n\nindividual federal officers. That is unsurprising given the default principle that \n\n“a waiver of the Government’s sovereign immunity will be strictly construed, in \n\nterms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 \n\n(1996). \n\n III \n \n To support the idea that RFRA provides a personal damages remedy \n\nagainst individual officers, the panel relies on Franklin v. Gwinnett County Public \n\nSchools, 503 U.S. 60 (1992). Franklin, however, does not create a presumption in \n\n\n\n 7 \n \n\nfavor of money damages; rather, it simply recognizes a presumption (in the \n\nabsence of contrary indication) that a private right of action is enforced by all \n\n“appropriate” remedies. That of course simply begs the question. Indeed, RFRA \n\nitself already speaks of “appropriate relief”; so Franklin provides no new \n\ninformation. In other cases, of course, the Supreme Court has offered guidance \n\nregarding whether money damages are generally considered appropriate relief \n\nagainst governments and government officials. Its answer is no. See, e.g., Ziglar \n\nv. Abbasi, 137 S. Ct. 1843, 1856 (2017); Sossamon, 563 U.S. at 286. \n\n In any event, the Franklin presumption was created in the context of an \n\nimplied right of action “[w]ith no statutory text to interpret.” Sossamon, 563 U.S. \n\nat 288. That presumption is held in Sossamon to be “irrelevant to construing the \n\nscope of an express waiver of sovereign immunity.” Id. The waiver of sovereign \n\nimmunity in RFRA is of course “express.” \n\n The panel opinion detects irony in a rule that may presume a broader set \n\nof remedies in an implied right of action than in a right of action that is express. \n\nBut irony is dispelled when one considers that implied rights of action for \n\ndamages against individual federal officers‐‐i.e., Bivens actions‐‐are not in vogue; \n\nthey are tolerated in the few existing contexts, and may never be created in any \n\n\n\n 8 \n \n\nother context whatsoever. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) \n\n(“[W]e have consistently refused to extend Bivens liability to any new context or \n\nnew category of defendants.”); see also Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. \n\n2009) (in banc). \n\n The panel has done what the Supreme Court has forbidden: it has created \n\na new Bivens cause of action, albeit by another name and by other means. The \n\nSupreme Court did not shut the Bivens door so that we could climb in a window. \n\nThe panel ignores the considerations that inform the Supreme Court’s refusal to \n\nextend Bivens. A private right of action for money damages against individual \n\nofficers of “a government” entails “substantial social costs, including the risk that \n\nfear of personal monetary liability and harassing litigation will unduly inhibit \n\nofficials in the discharge of their duties.” Anderson v. Creighton, 483 U.S. 635, 638 \n\n(1987). We must consider “the burdens on Government employees who are sued \n\npersonally,” and the “costs and consequences to the Government itself when the \n\ntort and monetary liability mechanisms of the legal system are used to bring \n\nabout the proper formulation and implementation of public policies.” See Ziglar, \n\n137 S. Ct. at 1858. \n\n\n\n\n 9 \n \n\n The remedy created by the panel opinion is considerably more inhibiting \n\nthan the personal damages remedy in the context of 42 U.S.C. § 1983, which is \n\nmitigated by qualified immunity. The panel opinion mentions (without \n\ndeciding) that qualified immunity may be available as possible mitigation. \n\nMitigation of error is always encouraging, and I have no doubt that qualified \n\nimmunity does apply here. Indeed, I have difficulty imagining a scenario in \n\nwhich its applicability would be more apparent: the defendants here are FBI \n\nagents pursuing a national security investigation, and were never told that \n\nPlaintiffs believed cooperating with an investigation “burdened their religious \n\nbeliefs.” Yet a court’s finding of qualified immunity is never a foregone \n\nconclusion, and many courts‐‐including our own‐‐have occasionally failed to \n\napply it when appropriate. See, e.g., Iqbal v. Hasty, 490 F.3d 143, 153 (2d Cir. \n\n2007). The panel’s remand on this issue sows doubt where there should be none. \n\n With or without qualified immunity, such liability would result in federal \n\npolicy being made (or frozen) by the prospect of impact litigation. The safest \n\ncourse for a government employee in doubt would be to avoid doing one’s job, \n\nwhich is not a choice in need of encouragement. \n\n \n\n\n\n 10 \n \n\n * * * \n \n I respectfully dissent from the denial of in banc review because the panel \n\nopinion is quite wrong and actually dangerous. \n\n \n\n\n\n\n 11 \n \n\nJOSÉ A. CABRANES, Circuit Judge, joined by DENNIS JACOBS and RICHARD J.", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367880/", "author_raw": "SULLIVAN, Circuit Judges, dissenting"}, {"author": "SULLIVAN, Circuit Judges, dissenting", "type": "dissent", "text": "SULLIVAN, Circuit Judges, dissenting from the denial of rehearing en banc: \n \n I fully join Judge Jacobs’ thorough dissent, which does the heavy lifting on \n\nthe merits. I write separately simply to emphasize that the panel decision \n\nrepresents a transparent attempt to evade, if not defy, the precedents of the \n\nSupreme Court. \n\n For nearly half a century, the Supreme Court has “consistently rejected \n\ninvitations” to extend the Bivens remedy to new contexts. Corr. Servs. Corp. v. \n\nMalesko, 534 U.S. 61, 70 (2001). Yet twelve years ago, in Iqbal v. Hasty, 490 F.3d 143 \n\n(2d Cir. 2007), a panel of our Court entertained the extension of Bivens to several \n\nsuch contexts, including violations of the Free Exercise clause. In Ashcroft v. Iqbal, \n\n556 U.S. 662 (2009), the Supreme Court forcefully reversed, reminding us not to \n\n“extend Bivens liability to any new context or new category of defendants” \n\nincluding “an implied damages remedy under the Free Exercise Clause.” Id. at \n\n675 (internal quotation marks omitted). \n\n Nevertheless, four years ago, there was another attempt to evade the \n\nSupreme Court’s clear instruction. In Turkmen v. Hasty, 789 F.3d 218 (2d Cir. \n\n2015), a panel of our Court sought to extend the Bivens remedy to the \n\nextraordinary case of officials implementing national security policy. A motion to \n\n 1 \n \n\nrehear the case en banc failed by vote of an evenly divided court (6‐6). See 808 \n\nF.3d 197 (2d Cir. 2015). Once again, however, the Supreme Court intervened, \n\nreining in our Court’s misplaced enthusiasm for creating official liability ex nihilo. \n\nSee Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). \n\n In Ziglar, the Supreme Court not only reversed us, but patiently explained \n\nwhy damages remedies against government officials are disfavored and should \n\nnot be recognized absent explicit congressional authorization: “Claims against \n\nfederal officials often create substantial costs, in the form of defense and \n\nindemnification . . . time and administrative costs . . . resulting from the \n\ndiscovery and trial process.” Id. at 1856. These costs, the Supreme Court \n\ninstructed, provide “sound reasons to think Congress might doubt the efficacy or \n\nnecessity of a damages remedy.” Id. at 1858. Thus “courts must refrain from \n\ncreating the remedy in order to respect the role of Congress.” Id. \n\n It appears our Court is still incapable of learning this lesson. In the instant \n\ncase, however, we have developed still another rationalization for avoiding the \n\nSupreme Court’s instruction. “We are not extending Bivens,” the panel in effect \n\ninsists. “We are simply presuming that Congress legislated a Bivens‐like \n\nremedy—sub silentio—in enacting RFRA.” \n\n\n\n 2 \n \n\n This rationalization is as flawed as it is transparent. Insofar as this panel \n\nsuggests we may assume that Congress authorized such damages implicitly, \n\nZiglar reminds us that “Congress will be explicit if it intends to create a new \n\nprivate cause of action” or “substantive legal liability,” particularly for \n\ngovernment officials. Id. at 1856‐57. Insofar as the panel suggests that Congress \n\nincidentally legislated such a remedy—as part of its general intent to restore the \n\nFree Exercise legal structure antedating Employment Division v. Smith, 494 U.S. \n\n872 (1990)—Iqbal makes clear that damages are not, and never have been, \n\navailable for Free Exercise claims. 556 U.S. at 676. \n\n In sum, RFRA reveals no Congressional intent to create a damages \n\nremedy, and on no theory may we presume it. \n\n When asked why he persisted in issuing decisions that the Supreme Court \n\nwould predictably overturn, a prominent judge of another circuit once explained, \n\n“[t]hey can’t catch ’em all.”1 Such an attitude is not, and must not become, the \n\napproach of our Circuit. \n\n\n\n\n \n1 Linda Greenhouse, Dissenting Against the Supreme Court’s Rightward Shift, N.Y. TIMES, \nApril 12, 2018, https://www.nytimes.com/2018/04/12/opinion/supreme‐court‐right \n‐shift.html. \n 3", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367880/", "author_raw": "SULLIVAN, Circuit Judges, dissenting"}]} | ROBERT A KATZMANN | DENNIS JACOBS | JOSÉ A CABRANES | 2 | ROSEMARY S POOLER; PETER W HALL; DENNY CHIN; RAYMOND J LOHIER JR; SUSAN L CARNEY; CHRISTOPHER F DRONEY; RICHARD J SULLIVAN | {} | 7 | 0 | 4 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4590627/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Tanvir v. Tanzin\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-14\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n16‐1176 \nTanvir v. Tanzin \n\n United States Court of Appeals\n FOR THE SECOND CIRCUIT \n \n At a stated term of the United States Court of Appeals for the Second \nCircuit, held at the Thurgood Marshall United States Courthouse, 40 Foley \nSquare, in the City of New York, on the fourteenth day of February, two \nthousand nineteen. \n \nPRESENT: \n ROBERT A. KATZMANN, \n Chief Judge, \n DENNIS JACOBS, \n JOSÉ A. CABRANES, \n ROSEMARY S. POOLER, \n PETER W. HALL, \n DENNY CHIN, \n RAYMOND J. LOHIER, JR., \n SUSAN L. CARNEY, \n CHRISTOPHER F. DRONEY, \n RICHARD J. SULLIVAN, \n Circuit Judges. \n \n \nMUHAMMAD TANVIR, JAMEEL ALGIBHAH, \nNAVEED SHINWARI, \n \n Plaintiffs‐Appellants, \n \n v. No. 16‐1176 \n \nFNU TANZIN, Special Agent, FBI; SANYA \nGARCIA, Special Agent, FBI; JOHN LNU, Special \nAgent, FBI; FRANCISCO ARTUSA, Special Agent, \n\n\n Circuit Judge Debra Ann Livingston recused herself from these proceedings. \n 1 \n \n\nFBI; JOHN C. HARLEY III, Special Agent, FBI; \nSTEVEN LNU, Special Agent, FBI; MICHAEL \nLNU, Special Agent, FBI; GREGG GROSSOEHMIG, \nSpecial Agent, FBI; WEYSAN DUN, Special Agent \nin Charge, FBI; JAMES C. LANGENBERG, Assistant \nSpecial Agent in Charge, FBI; JOHN DOE #1, Special \nAgent, FBI; JOHN DOE #2, Special Agent, FBI; JOHN \nDOE #3, Special Agent, FBI; JOHN DOE #4, Special \nAgent, FBI; JOHN DOE #5, Special Agent, FBI; \nJOHN DOE #6, Special Agent, FBI, \n \n Defendants‐Appellees. \n \n \n \nFor Plaintiffs‐Appellants: RAMZI KASSEM (Naz Ahmad, on the \n brief), CLEAR Project, Main Street Legal \n Services, Inc., City University of New \n York School of Law, Long Island City, \n NY. \n \n Jennifer R. Cowan, Erol Gulay, Sandy \n Tomasik, Debevoise & Plimpton LLP, \n New York, NY. \n \n Shayana D. Kadidal, Baher Azmy, \n Center for Constitutional Rights, New \n York, NY. \n \nFor Defendants‐Appellees: ELLEN BLAIN, Assistant United States \n Attorney (Benjamin H. Torrance, \n Assistant United States Attorney, on the \n brief), for Geoffrey S. Berman, United \n States Attorney for the Southern \n District of New York, New York, NY. \n \n\n 2 \n \n\n \n Following disposition of this appeal on June 25, 2018, an active judge of the \nCourt requested a poll on whether to rehear the case en banc. A poll having been \nconducted and there being no majority favoring en banc review, rehearing en banc \nis hereby DENIED. \n \n Rosemary S. Pooler, Circuit Judge, joined by Robert A. Katzmann, Chief\n[END_CASE]",
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4,590,628 | John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. | Doe v. United States | 2019-02-14 | Docket 17-1841; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Katzmann, Kearse, Chin", "parties": "", "opinions": [{"author": "KATZMANN, Chief Judge", "type": "010combined", "text": "17-1841\nDoe v. United States\n\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n _______________\n\n August Term, 2018\n\n (Argued: October 22, 2018 Decided: February 14, 2019)\n\n Docket No. 17-1841\n\n _______________\n\n JOHN DOE,\n\n Petitioner-Appellant,\n\n —v.—\n\n UNITED STATES OF AMERICA,\n\n Respondent-Appellee.\n _______________\n\n B e f o r e:\n\n KATZMANN, Chief Judge, KEARSE AND CHIN, Circuit Judges.\n\n _______________\n\n Petitioner-appellant John Doe appeals from a judgment entered in the\n United States District Court for the\n Doe filed a petition for a writ of error coram nobis seeking to vacate his earlier\n\n\n 1\n\fconviction for conspiracy . The petition argues that Doe’s\ndefense counsel was ineffective in affirmatively assuring him that there should\nbe no immigration consequences for pleading guilty when, in fact, the crime to\nwhich he pleaded was an aggravated felony resulting in mandatory removal.\nThe Government joined in Doe’s petition after originally opposing it; the district\ncourt nevertheless denied the petition. On appeal, Doe argues that the district\ncourt applied incorrect legal standards in evaluating the petition and that the\ncourt abused its discretion in denying relief. The Government now argues that\nthe district court’s decision was not an abuse of discretion. We agree with Doe\nthat the court below erred and that Doe is entitled to relief. Accordingly, the\njudgment of the district court is REVERSED and the case is REMANDED.\n _______________\n\n , for Petitioner-Appellant.\n\n (argued), Assistant United\n States Attorneys, for , United States\n Attorney for the\n for Respondent-Appellee.\n\n _______________\n\n KATZMANN, Chief Judge:\n\n Petitioner-Appellant John Doe 1 filed a writ of coram nobis in 2014 to vacate\n\na prior conviction. Both the Government and Doe’s original attorney admitted\n\nthat Doe was misled as to the serious immigration consequences of the crime to\n\n\n\n\n 1\n Petitioner has been given the pseudonym “John Doe” throughout this litigation\nto safeguard his identity. All citations to the record in this case have been omitted.\n\n 2\n\fwhich he pleaded guilty. The Government, after initially opposing the coram\n\nnobis petition, joined in asking the district court to grant it. The district court\n\nnevertheless denied the petition. Troublingly, the Government has now switched\n\npositions again, arguing that the district court did not abuse its discretion. On\n\nreview, we grant the petition.\n\n BACKGROUND\n\n Pursuant to a plea agreement, Doe pleaded guilty in to a one-count\n\ninformation charging him with conspiracy\n\n\n\n\n . As part of\n\nhis agreement, Doe consented to cooperate with the Government. Doe was\n\nsentenced in to .\n\n In , Doe filed a petition for a writ of error coram nobis. According to the\n\npetition, Doe’s attorney had assured him that his plea should not result in\n\nremoval, when in fact the admitted loss amount rendered it an\n\naggravated felony, resulting in a lifetime citizenship bar, a conclusive\n\npresumption of deportability, and automatic denial of discretionary relief. See\n\n\n\n 3\n\f8 U.S.C. §§ 1101(a)(43)(M)(i) (defining aggravated felony as including “an offense\n\nthat involves fraud or deceit in which the loss to the victim or victims exceeds\n\n$10,000”), 1101(f)(8), 1227(a)(2)(A)(iii), 1228(c), 1229b(a)(3), 1229b(b)(1)(C),\n\n1427(a). The petition also included an earlier written statement in which Doe’s\n\ndefense attorney admitted that he was ignorant as to immigration law and so\n\nwas unaware that Doe’s conviction would lead to mandatory deportation. He\n\nand Doe had relied on the Government’s assurances that it would do everything\n\npossible to keep Doe in the country.\n\n After his sentencing, Doe applied to renew his green card, at which point\n\nhe was placed into removal proceedings. The agents with whom Doe had been\n\ncooperating referred him to new agents, and Doe agreed to cooperate with them\n\nin more sensitive matters. His removal proceedings were then administratively\n\nclosed. Now aware that he was deportable, Doe sought to vacate his conviction;\n\nhe was dissuaded by his handlers, who told him they would be able to obtain\n\ncitizenship for him or have his conviction vacated. With the agents’\n\nencouragement, Doe applied for citizenship; this application, however, was\n\ndenied around or . Agents continued to assure him that they would\n\n\n\n 4\n\fprocure him citizenship and to discourage him from discussing a vacatur motion\n\nwith attorneys. Finally, in , Doe recognized that the agents could not actually\n\nobtain citizenship for him and contacted a new lawyer.\n\n Doe then filed the instant coram nobis petition, after a delay of several\n\nmonths occasioned by the need to retrieve the original criminal complaint\n\nagainst him. The Government initially opposed the petition, asserting that Doe\n\ndid not meet the standard for coram nobis relief because he did not receive\n\nineffective assistance, he was not prejudiced by any ineffective assistance, and his\n\npetition was untimely. However, after meeting with Doe, the Government filed a\n\nletter with the court withdrawing its opposition. The Government requested that\n\nthe court (1) grant the coram nobis petition and (2) transfer the criminal case to the\n\n . At a hearing in , the Government\n\ninformed the court that after examining Second Circuit case law and meeting\n\nwith Doe—whose story the Government credited—the Government believed\n\nthat Doe had received ineffective assistance of counsel. Given the circuit law and\n\nthe factual circumstances, the Government determined that it “could not . . . in\n\ngood conscience oppose the motion.”\n\n\n\n 5\n\f The district court orally denied the petition, stating that it was “not\n\npersuaded.” Doe timely appealed the decision, seeking expedited summary\n\nreversal. This Court determined that the district court’s reasoning could not be\n\ndiscerned from the record; it remanded for the district court to identify the legal\n\nstandard applied and to explain its reasons for denying relief. The district court\n\nthen issued a written opinion denying Doe’s coram nobis petition. The court\n\nstated that no “‘serious constitutional question’ would be raised by withdrawing\n\n[Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly\n\nseems the remedy in this case, if one is even in order.” The court said that “the\n\nExecutive Branch . . . is requesting that the Judicial Branch remedy what the\n\nUnited States Attorney’s Office believes to be a wrong perpetrated by either ICE\n\nor the FBI,” a request which the court did “not believe . . . to be sound, given the\n\nseparation of powers doctrine.” After the district court issued its decision, Doe\n\nreinstated his appeal.\n\n\n\n\n 6\n\f DISCUSSION\n\nI. Standard of Review\n\n “A writ of error coram nobis is an ‘extraordinary remedy’” typically granted\n\nonly when a prisoner is out of custody and so cannot pursue habeas relief. Kovacs\n\nv. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting United States v. Morgan, 346\n\nU.S. 502, 511 (1954)). We review de novo the legal standards that the district court\n\nhas applied but review for abuse of discretion the court’s ultimate decision to\n\ndeny the writ. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).\n\nII. Coram Nobis Relief\n\n The sole issue on appeal is whether the district court improperly denied\n\nDoe’s coram nobis petition. While the Government’s agreement with Doe below\n\nmight normally preclude it from opposing Doe now, see, e.g., Steagald v. United\n\nStates, 451 U.S. 204, 209 (1981); United States v. Gupta, 699 F.3d 682, 690 n.2 (2d\n\nCir. 2012); United States v. Canova, 412 F.3d 331, 347 (2d Cir. 2005), we will\n\nexercise our discretion to consider the matter on the merits, see Bogle-Assegai v.\n\nConnecticut, 470 F.3d 498, 504 (2d Cir. 2006), bearing in mind the concessions the\n\nGovernment has made both below and on appeal.\n\n\n\n 7\n\f To receive coram nobis relief, a petitioner must show “that 1) there are\n\ncircumstances compelling such action to achieve justice, 2) sound reasons exist\n\nfor failure to seek appropriate earlier relief, and 3) the petitioner continues to\n\nsuffer legal consequences from his conviction that may be remedied by granting\n\nof the writ.” Kovacs, 744 F.3d at 49 (quoting Foont v. United States, 93 F.3d 76, 79\n\n(2d Cir. 1996)). 2 The district court neither laid out nor applied these legal\n\nstandards. Instead, it cited cases that asked whether “the failure to allow for\n\ncollateral review would raise serious constitutional questions,” a test used to\n\ndetermine whether untimely habeas petitions alleging constitutional violations\n\n\n\n\n 2 As the Government does not contest the third factor for receiving coram nobis\nrelief, only the first and second factors are at issue here. See Norton v. Sam’s Club, 145\nF.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered\nwaived and normally will not be addressed on appeal.”). However, we note that Doe’s\nconviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M), means that he “shall\nbe conclusively presumed to be deportable,” id. § 1228(c); see id. § 1227(a)(2)(A)(iii), and\nis ineligible for cancellation of removal or adjustment of status, id. § 1229b(a)(3),\n(b)(1)(C). He is also categorically disqualified from proving moral character, id.\n§ 1101(f)(8), which in turn disqualifies him from naturalized citizenship, id. § 1427(a).\nThe fact that his deportation proceedings have been administratively stayed does not\nalleviate these legal consequences, as Doe is still unable to apply for citizenship and\nremains subject to mandatory removal at any moment if the Government removes the\nstay. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (A.G. 2018) (prohibiting the use of\nadministrative closure in most removal cases and requiring all administratively closed\ncases to be re-calendared on the motion of either party unless they were closed pursuant\nto an explicit grant of authority via regulation or judicially approved settlement).\n\n 8\n\fmay be brought under 28 U.S.C. § 2241. Triestman v. United States, 124 F.3d 361,\n\n377 (2d Cir. 1997). Doe argues that the district court applied the wrong legal\n\nstandards, and we agree. Under the correct standards, Doe merits relief.\n\n A. Ineffective Assistance\n\n Doe claims that his attorney misadvised him as to the immigration\n\nconsequences of his plea, and that there is a reasonable probability he would\n\nhave gone to trial, litigated a defense, or negotiated a different plea had he not\n\nbeen misadvised. Ineffective assistance of counsel, including during the plea-\n\nbargaining process, is a circumstance compelling the grant of a timely\n\napplication for coram nobis relief. Kovacs, 744 F.3d at 49. To prove ineffective\n\nassistance, a petitioner must show that “defense counsel’s performance was\n\nobjectively unreasonable” and that “the deficient performance prejudiced the\n\ndefense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “The\n\nquestion of whether a defendant’s lawyer’s representation violates the Sixth\n\nAmendment right to effective assistance of counsel is a mixed question of law\n\nand fact that is reviewed de novo.” LoCascio v. United States, 395 F.3d 51, 54 (2d\n\nCir. 2005) (citation omitted).\n\n\n\n 9\n\f The Government conceded both in the district court and on appeal that\n\nDoe’s counsel’s actions were objectively unreasonable. They were. At the time of\n\nDoe’s plea in , the Supreme Court had not yet held that attorneys must\n\naffirmatively warn their clients of the immigration consequences of their\n\npotential convictions. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). However,\n\nthis court had already held that “an affirmative misrepresentation by counsel as\n\nto the deportation consequences of a guilty plea is . . . objectively unreasonable.”\n\nUnited States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), abrogated on other grounds\n\nby Padilla, 559 U.S. 356.\n\n Doe claims that when he asked his defense counsel about the immigration\n\nconsequences of the proposed plea agreement, counsel indicated that, with Doe’s\n\ncooperation and an ultimate plea of guilty in this nonviolent case, Doe should\n\nnot have a problem with the immigration authorities and should not face\n\ndeportation. An earlier statement by Doe’s defense counsel effectively admitted\n\nas much. The statement noted that counsel neither was a practitioner of nor was\n\nknowledgeable about immigration law; that he and Doe had been assured by the\n\nGovernment that the Government would do everything it could to keep Doe\n\n\n\n 10\n\ffrom being deported; that the attorney and Doe had relied on the Government’s\n\nrepresentations; and that he had not been aware that deportation was mandatory\n\nfor the offense to which Doe was considering pleading guilty. The district court\n\nmade no findings as to the credibility of Doe’s or his attorney’s representations.\n\nThe Government, however, has credited Doe’s description of the events and of\n\nwhat he was told by government agents, and the Government has admitted that\n\ndefense counsel effectively conceded that he provided incorrect information to\n\nDoe as to whether mandatory deportation would result from his plea. Reviewing\n\nthe record de novo, we conclude that there is no genuine dispute as to the fact that\n\ncounsel’s representations to Doe, which inaccurately conveyed that his plea of\n\nguilty to the charge would not make his deportation mandatory, fell below\n\nan objective standard of reasonableness. Couto, 311 F.3d at 187 (finding\n\nineffective assistance when “counsel affirmatively misled [d]efendant into\n\nbelieving there were things that could be done to avoid deportation”).\n\n The question then becomes whether this misadvice prejudiced Doe. The\n\nGovernment asserts that the district court’s decision impliedly found a lack of\n\nprejudice and claims that this holding was not an abuse of discretion. However,\n\n\n\n 11\n\fthe court did not make any clear determination regarding whether Doe had met\n\nthe Strickland standard. Instead, applying an incorrect legal test, the court stated\n\nconclusorily that “[Doe] has not demonstrated that a ‘serious constitutional\n\nquestion’ would be raised by withdrawing his guilty plea at this stage, nor that\n\nany such constitutional question would be remedied by re-opening the\n\nInformation or transferring it to the .” We respectfully think the\n\nquestion is not whether vacating Doe’s conviction would raise a constitutional\n\nquestion, but rather whether allowing his conviction to stand would constitute a\n\nmiscarriage of justice.\n\n Assuming that the district court meant to say that no serious constitutional\n\nquestion would be raised by maintaining Doe’s conviction, we believe the court\n\nneither employed the correct legal standard nor examined whether Doe was\n\nprejudiced under Strickland. We therefore analyze the question ourselves.\n\nPrejudice exists “if it is shown that, but for counsel’s unprofessional errors, there\n\nwas a reasonable probability that the petitioner could have negotiated a plea that\n\ndid not impact immigration status or that he would have litigated an available\n\ndefense.” Kovacs, 744 F.3d at 52. Doe has shown both.\n\n\n\n 12\n\f As a predicate matter, a petitioner alleging ineffective assistance based on\n\nimmigration misadvice must “clearly demonstrate ‘that he placed particular\n\nemphasis on [immigration consequences] in deciding whether or not to plead\n\nguilty.’” Id. (citation omitted). 3 Courts cannot rely solely on “post hoc assertions\n\nfrom a defendant about how he would have pleaded but for his attorney’s\n\ndeficiencies”; we must also “look to contemporaneous evidence to substantiate a\n\ndefendant’s expressed preferences.” Jae Lee v. United States, 137 S. Ct. 1958, 1967\n\n(2017). This evidence shows that Doe was deeply concerned about deportation.\n\n\n\n\n 3 The Government suggests that it was not an abuse of discretion for the district\ncourt to find a lack of prejudice in light of Jae Lee v. United States, 137 S. Ct. 1958 (2017),\nbecause Doe did not show either that deportation was the “determinative issue” for him\nor that he “had a large number of discussions with his counsel” about it. The Jae Lee\nCourt did note that, in that case, deportation was “determinative” for Lee, based on\nLee’s “repeated[]” questioning of his attorney and on the testimony of Lee and Lee’s\nattorney at an evidentiary hearing that Lee would have gone to trial if he had known\nabout the risk of deportation. 137 S. Ct. at 1967-68. But Jae Lee did not say that a\npetitioner must show that immigration consequences were his sole concern, or that he\nhad engaged in a “large” number of immigration-related discussions with counsel.\n(What constitutes a “large” number of discussions the Government does not say,\nthough apparently it is more than the three with which the Government credits Doe.)\nRather, the Court asked whether the petitioner “has adequately demonstrated a\nreasonable probability that he would have rejected the plea had he known that it would\nlead to mandatory deportation.” Jae Lee, 137 S. Ct. at 1967. Thus, Jae Lee did not alter the\nstandard this court set in Kovacs.\n\n 13\n\f While the district court did not hold an evidentiary hearing on the petition,\n\nDoe submitted a declaration stating that during an early conversation with his\n\ncounsel, Doe asked about his immigration situation and his attorney indicated\n\nthat cooperation and an ultimate plea of guilty should not lead to deportation.\n\nCounsel told Doe “that it was not a violent crime, that [Doe] had a green card,\n\nand that essentially [Doe] should ‘be okay.’” When reviewing the plea agreement\n\nthat Doe ultimately signed, Doe asked counsel about the listed penalty of\n\ndeportation—another sign that Doe was particularly concerned about\n\nimmigration consequences—but counsel “soft-peddled the warning in the\n\nagreement as a possible penalty that was put in all agreements for people who\n\nwere not citizens.” The Government credited Doe’s statements below and does\n\nnot challenge them on appeal.\n\n Doe’s defense counsel also said in an earlier statement that he and Doe\n\nwere assured by the Government that they would do everything they could to\n\nkeep Doe in the United States, that the Government was aware of the extreme\n\ndanger Doe would face if he were sent back to his home country, and that\n\ncounsel and Doe relied on the representations the Government gave them at the\n\n\n\n 14\n\ftime of Doe’s plea. These statements buttress Doe’s claim that he would not have\n\npleaded guilty had he known about the deportation consequences of doing so.\n\n Evidence regarding Doe’s background likewise backs up Doe’s later\n\nassertions that he was focused on remaining in the country. His history in the\n\nUnited States, his family circumstances, and his gainful employment all signal\n\nDoe’s strong connection to, and desire to remain in, the United States. See Jae Lee,\n\n137 S. Ct. at 1968 (finding it relevant that “Lee had lived in the United States for\n\nnearly three decades, had established two businesses in Tennessee, and was the\n\nonly family member in the United States who could care for his elderly parents,”\n\nand that “there is no indication that he had any ties to South Korea [as] he had\n\nnever returned there since leaving as a child”). The Government “has given no\n\npersuasive reason to conclude that the likely grave immigration consequences of\n\nhis plea were not of great importance” to Doe. United States v. Gonzales, 884 F.3d\n\n457, 461 (2d Cir. 2018) (per curiam).\n\n While not contemporaneously documented, Doe’s statements regarding\n\nwhat occurred at his plea hearing add to his claim. The Government attempts to\n\nuse the plea hearing against Doe: it points to Doe’s statements during the plea\n\n\n\n 15\n\fhearing to argue that he pleaded guilty after being warned of the immigration\n\nconsequences of his plea. The district court stated that Doe “was instructed that\n\nhis entry of a plea of guilty could result in his deportation given that the value of\n\n exceeded $10,000 and therefore constituted an aggravated felony.”\n\nThe latter part of this statement was clear error. The magistrate judge did ask\n\nDoe, as part of a standard plea colloquy, if he understood that he “may be\n\ndeported as a result of this conviction.” Yet nowhere during the colloquy did the\n\ncourt inform Doe that the crime to which he was pleading guilty constituted an\n\naggravated felony, or what the mandatory consequences of pleading to an\n\naggravated felony would be. And Doe indicated in a declaration that his attorney\n\nmisadvised him further in response to the judge’s question, emphasizing that the\n\njudge said “may be” rather than “would be.” The Government does not\n\nchallenge Doe’s characterization of what occurred during the plea hearing. 4\n\n Given the evidence that Doe was quite concerned about remaining in the\n\ncountry, it is clear that he would have preferred to negotiate a plea that did not\n\n\n\n\n The Government notes that there is no record that Doe’s counsel actually\n 4\n\nstopped the proceedings, as counsel did in Jae Lee. But Jae Lee did not state that actual\nstoppage is required in order to show prejudice. 137 S. Ct. at 1968 & n.4.\n\n 16\n\ftrigger mandatory removal. Likewise, there is “a reasonable probability that the\n\nprosecution would have accepted, and the court would have approved, a deal\n\nthat had no adverse effect on [his] immigration status.” Kovacs, 744 F.3d at 52.\n\nThe Government cited this language in Kovacs in explaining to the district court\n\nwhy it believed Doe’s counsel’s mistaken advice had prejudiced Doe. Therefore,\n\nin joining Doe’s motion, the Government implicitly admitted that a plea might\n\nhave been negotiated without mandatory immigration consequences. There is\n\nalso a reasonable probability that the court would have accepted a plea to a lesser\n\ncharge, since the court ultimately sentenced Doe to probation rather than prison.\n\n The entirety of the Government’s argument to the contrary on appeal is\n\nthat Doe does not cite any alternative charge that could have been brought. But it\n\nwas not necessary to bring a different charge. Doe pleaded to one count of\n\nconspiracy\n\n\n\n\n 17\n\f It was eminently possible to keep the loss amount\n\nbetween and $10,000 by charging Doe for a conspiracy that only\n\nencompassed a few of his documented transactions.\n\n Moreover, while Doe did not point to another charge that could have\n\nformed the basis of a plea, one clearly existed:\n\n\n\n\n There is a\n\nreasonable probability that, had all parties been aware of the possibility of\n\nmandatory deportation, the Government would have been willing to charge Doe\n\nwith based on one or more specific transactions with a total loss amount\n\nunder $10,000—rather than the higher loss and restitution amounts actually\n\ncharged—in exchange for the cooperation that Doe promised in his plea deal.\n\nGiven Doe’s promised cooperation, as well as the Government’s assurances\n\nduring plea negotiations that it would do everything it could to prevent Doe’s\n\nremoval, there is a reasonable probability that the Government would have\n\naccepted charging a lower loss amount.\n\n\n\n\n 18\n\f There is also a reasonable probability that, had Doe known of the\n\nmandatory removal provision, Doe would have litigated an available defense.\n\nDoe asserts that he could have (and would have) tried the case or challenged the\n\nloss figure had he known that a plea would lead to deportation. The Government\n\nresponds that the evidence against Doe was too “overwhelming” to go to trial,\n\nand that Doe would have had no way to successfully challenge the loss amount.\n\nBut this is not entirely certain. There were ways for Doe to challenge both the\n\ncharges themselves and the loss amount. Doe provided some of the evidence\n\nagainst himself during his proffer sessions, which Doe claims he would not have\n\nundertaken had his attorney told him about the possibility of mandatory\n\ndeportation. Doe also might have contested intent, as he believed he had a good\n\nargument that he did not know the purpose of the and\n\nwas just .\n\n To contest the loss amount, Doe could have challenged the extent of his\n\ninvolvement in the scheme and argued that he should be held liable only for the\n\nlosses he himself caused. See United States v. Studley, 47 F.3d 569, 575 (2d Cir.\n\n1995) (holding that “the fact that the defendant is aware of the scope of the\n\n\n\n 19\n\foverall operation is not enough to hold him accountable for the activities of the\n\nwhole operation,” and that the key question is “what role the defendant agreed\n\nto play in the operation”). There was no indication in the complaint that Doe had\n\n“suggested” the crimes that caused the loss. United States v. Germosen, 139 F.3d\n\n120, 130 (2d Cir. 1998). Therefore, Doe could have argued that “[h]e followed\n\ninstructions on potential customers but did not design or\n\ndevelop the scam.” Id. He might then have only been held responsible for the\n\ntransactions he himself made—and Doe had a possible basis to argue that these\n\ntransactions totaled less than $10,000. The criminal complaint stated that Doe and\n\n and that together they caused well over\n\n$100,000 in losses; it did not state how much of the money went to Doe rather\n\nthan —information that could weigh on the nature or extent of\n\nany conspiracy. Doe also claimed that a second person\n\n\n\n\n Thus, there\n\nwas a path available to Doe—albeit a narrow one—to challenge either the\n\n\n\n\n 20\n\fcharges against him or the loss amount had he not cooperated under a mistaken\n\nimpression that he would be safe from removal.\n\n Moreover, the Supreme Court has clarified that “there is more to consider\n\nthan simply the likelihood of success at trial”; the inquiry focuses on the\n\ndefendant’s decision-making process, and “[t]he decision whether to plead guilty\n\nalso involves assessing the respective consequences of a conviction after trial and\n\nby plea.” Jae Lee, 137 S. Ct. at 1966. Here, even if Doe were likely to lose, it would\n\nbe far from irrational for Doe to litigate either the entire charge or the loss\n\namount, given his strong interest in remaining in the country. If Doe had fought\n\nthe charge in the information and lost, he would have had a Guidelines level of\n\n , exposing him to . His plea agreement left him at a\n\nGuidelines level of , for a Guidelines sentence. This difference\n\nin risk is slight enough to pursue even a small possibility of an acquittal or a\n\nsuccessful challenge of the loss figure. See id. at 1966-67. As Doe can show that he\n\nhad a reasonable probability either of negotiating a different plea or of going to\n\ntrial or litigating the loss amount, he has proven that his counsel’s immigration\n\nmisadvice was prejudicial. See Kovacs, 744 F.3d at 53 (“[T]he question is not\n\n\n\n 21\n\fwhether the defense would ultimately have been successful. Rather, the inquiry\n\nis whether the defense was viable and sufficiently promising that [petitioner]\n\nwould have litigated the defense to avoid immigration consequences.”).\n\n B. Sound Reasons for Delay\n\n To receive coram nobis relief, Doe must also show that he provided sound\n\nreasons for his delay in seeking to vacate his conviction. The district court did\n\nnot determine whether Doe had justified his delay. However, we must do so to\n\nresolve Doe’s claim. See Kovacs, 744 F.3d at 54. While “[n]o statute of limitations\n\ngoverns the filing of a coram nobis petition,” id., a petitioner must still show\n\n“sound reasons” for the delay in bringing the petition, Foont, 93 F.3d at 79. To\n\ndecide whether sound reasons exist, the court must focus on “the circumstances\n\nsurrounding the petitioner’s failure to raise the issue earlier rather than the\n\ngovernment’s injury that resulted from the delay.” Id. at 80. “The critical inquiry\n\n. . . is whether the petitioner is able to show justifiable reasons for the delay.” Id.\n\n Doe has provided sufficient reasons to justify his delay. He claims that his\n\nhandlers promised him that he would obtain citizenship or that they would get\n\nhis criminal case dismissed. The Government does not contest Doe’s contentions\n\n\n\n 22\n\fthat his handlers dissuaded him from seeking to vacate his conviction. Instead, it\n\nasserts that the timeline after Doe was denied citizenship in is somewhat\n\nvague, such that a court could plausibly conclude that he had not sufficiently\n\nexplained why he waited five more years before filing his petition. However, as\n\nnoted above, the district court did not actually decide the issue. Abuse-of-\n\ndiscretion review, therefore, is inappropriate here.\n\n In any case, Doe’s declarations provide sufficient justification for his delay.\n\nHe states, and the Government does not dispute, that agents continued to tell\n\nhim after his failed citizenship application that they would be able to provide\n\nhim the relief he sought. Doe’s recollection of a statement that his file was\n\n“a 7 out of 10” and that he should “just hold on and it would be 10 out of 10” and\n\nhe would get the relief he wanted, further explains why Doe continued to rely on\n\nhis handlers rather than a coram nobis petition to address his immigration\n\nproblem.\n\n Nor is the timeline as vague as the Government suggests. Doe clearly\n\nstates that he decided to pursue a petition directly prior to hiring counsel in ,\n\nonce he finally realized that his handlers could not, in fact, gain him citizenship.\n\n\n\n 23\n\fHe then moved with diligence, pausing only to procure the original criminal\n\ncomplaint. These facts clearly differentiate this case from those the Government\n\ncites, in which petitioners provided either patently insufficient justifications or\n\nno justifications at all. See, e.g., United States v. Sash, 374 F. App’x 198, 200 (2d Cir.\n\n2010) (summary order); Jae Hyun Ahn v. United States, 96 F. App’x 43, 44 (2d Cir.\n\n2004) (summary order); Rodriguez v. United States, No. 98 Cr. 00764 MHD, 2012\n\nWL 6082477, at *10 (S.D.N.Y. Dec. 4, 2012). Nor does “the Government . . .\n\nsuggest any tactical reason [Doe] would have delayed pursuit of the writ” absent\n\ncontinued discouragement from his handlers, Kovacs, 744 F.3d at 54—particularly\n\nsince the Government does not contest that Doe repeatedly discussed his desire\n\nto vacate his conviction with the agents. We therefore conclude that Doe’s\n\npetition was timely.\n\nIII. Vacatur of the Plea and Transfer\n\n Having concluded that Doe has met his burden to receive coram nobis\n\nrelief, we must determine the scope of that relief. The plea for relief in Doe’s\n\npetition asks only to vacate his conviction. However, both the petition itself and\n\nthe Government’s letter supporting the petition clearly contemplate vacatur of\n\n\n\n 24\n\fDoe’s guilty plea, as well. Both parties stated at oral argument that if we were to\n\ngrant Doe’s petition, we should also vacate Doe’s plea. We agree. We therefore\n\ndirect the district court to grant Doe’s coram nobis petition and vacate both his\n\nconviction and his plea.\n\n Finally, because the district court denied Doe’s coram nobis petition, it did\n\nnot rule on the Government’s request to transfer Doe’s criminal case to the\n\n . However, both parties consented to this transfer\n\nbelow and agree that such a transfer is the preferred outcome if the district\n\ncourt’s judgment is reversed. Given that “the convenience of the parties, . . . in\n\nthe interest of justice,” clearly favors transfer, Fed. R. Crim. P. 21(b), and that the\n\nparties have given their consent, we hereby direct the district court to transfer\n\nDoe’s underlying criminal case to the for further\n\nproceedings.\n\n CONCLUSION\n\n As we reflect on the Government’s troubling changing positions in this\n\nmatter—after having once rightly concluded that Doe is entitled to relief—we are\n\nreminded of then-Attorney General Robert F. Kennedy’s cautioning words: “It is,\n\n\n\n 25\n\fafter all, not the Department of Prosecution but the Department of Justice . . . .\n\n[T]he interest of the Government . . . is not that it shall win a case, but that justice\n\nshall be done.” 5 For the foregoing reasons, the judgment below is REVERSED,\n\nand the case is REMANDED to the district court with instructions to grant the\n\nwrit, vacate Doe’s plea and conviction, and transfer Doe’s criminal case to the\n\n .\n\n\n\n\n 5\n Robert F. Kennedy, Att’y Gen., Address to the National Conference on Bail and\nCriminal Justice 2 (May 29, 1964) (available in the John F. Kennedy Library).\n\n 26", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4367881/", "author_raw": "KATZMANN, Chief Judge"}]} | KATZMANN | KEARSE | CHIN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4590628/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: John DOE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17-1841\nDoe v. United States\n\n\n\n UNITED STATES COURT OF APPEALS\n\n FOR THE SECOND CIRCUIT\n\n _______________\n\n August Term, 2018\n\n (Argued: October 22, 2018 Decided: February 14, 2019)\n\n Docket No. 17-1841\n\n _______________\n\n JOHN DOE,\n\n Petitioner-Appellant,\n\n —v.—\n\n UNITED STATES OF AMERICA,\n\n Respondent-Appellee.\n _______________\n\n B e f o r e:\n\n KATZMANN, Chief Judge, KEARSE AND CHIN, Circuit Judges.\n\n _______________\n\n Petitioner-appellant John Doe appeals from a judgment entered in the\n United States District Court for the\n Doe filed a petition for a writ of error coram nobis seeking to vacate his earlier\n\n\n 1\n\fconviction for conspiracy . The petition argues that Doe’s\ndefense counsel was ineffective in affirmatively assuring him that there should\nbe no immigration consequences for pleading guilty when, in fact, the crime to\nwhich he pleaded was an aggravated felony resulting in mandatory removal.\nThe Government joined in Doe’s petition after originally opposing it; the district\ncourt nevertheless denied the petition. On appeal, Doe argues that the district\ncourt applied incorrect legal standards in evaluating the petition and that the\ncourt abused its discretion in denying relief. The Government now argues that\nthe district court’s decision was not an abuse of discretion. We agree with Doe\nthat the court below erred and that Doe is entitled to relief. Accordingly, the\njudgment of the district court is REVERSED and the case is REMANDED.\n _______________\n\n , for Petitioner-Appellant.\n\n (argued), Assistant United\n States Attorneys, for , United States\n Attorney for the\n for Respondent-Appellee.\n\n _______________\n\n KATZMANN, Chief Judge:\n\n Petitioner-Appellant John Doe 1 filed a writ of coram nobis in 2014 to vacate\n\na prior conviction. Both the Government and Doe’s original attorney admitted\n\nthat Doe was misled as to the serious immigration consequences of the crime to\n\n\n\n\n 1\n Petitioner has been given the pseudonym “John Doe” throughout this litigation\nto safeguard his identity. All citations to the record in this case have been omitted.\n\n 2\n\fwhich he pleaded guilty. The Government, after initially opposing the coram\n\nnobis petition, joined in asking the district court to grant it. The district court\n\nnevertheless denied the petition. Troublingly, the Government has now switched\n\npositions again, arguing that the district court did not abuse its discretion. On\n\nreview, we grant the petition.\n\n BACKGROUND\n\n Pursuant to a plea agreement, Doe pleaded guilty in to a one-count\n\ninformation charging him with conspiracy\n\n\n\n\n . As part of\n\nhis agreement, Doe consented to cooperate with the Government. Doe was\n\nsentenced in to .\n\n In , Doe filed a petition for a writ of error coram nobis. According to the\n\npetition, Doe’s attorney had assured him that his plea should not result in\n\nremoval, when in fact the admitted loss amount rendered it an\n\naggravated felony, resulting in a lifetime citizenship bar, a conclusive\n\npresumption of deportability, and automatic denial of discretionary relief. See\n\n\n\n 3\n\f8 U.S.C. §§ 1101(a)(43)(M)(i) (defining aggravated felony as including “an offense\n\nthat involves fraud or deceit in which the loss to the victim or victims exceeds\n\n$10,000”), 1101(f)(8), 1227(a)(2)(A)(iii), 1228(c), 1229b(a)(3), 1229b(b)(1)(C),\n\n1427(a). The petition also included an earlier written statement in which Doe’s\n\ndefense attorney admitted that he was ignorant as to immigration law and so\n\nwas unaware that Doe’s conviction would lead to mandatory deportation. He\n\nand Doe had relied on the Government’s assurances that it would do everything\n\npossible to keep Doe in the country.\n\n After his sentencing, Doe applied to renew his green card, at which point\n\nhe was placed into removal proceedings. The agents with whom Doe had been\n\ncooperating referred him to new agents, and Doe agreed to cooperate with them\n\nin more sensitive matters. His removal proceedings were then administratively\n\nclosed. Now aware that he was deportable, Doe sought to vacate his conviction;\n\nhe was dissuaded by his handlers, who told him they would be able to obtain\n\ncitizenship for him or have his conviction vacated. With the agents’\n\nencouragement, Doe applied for citizenship; this application, however, was\n\ndenied around or . Agents continued to assure him that they would\n\n\n\n 4\n\fprocure him citizenship and to discourage him from discussing a vacatur motion\n\nwith attorneys. Finally, in , Doe recognized that the agents could not actually\n\nobtain citizenship for him and contacted a new lawyer.\n\n Doe then filed the instant coram nobis petition, after a delay of several\n\nmonths occasioned by the need to retrieve the original criminal complaint\n\nagainst him. The Government initially opposed the petition, asserting that Doe\n\ndid not meet the standard for coram nobis relief because he did not receive\n\nineffective assistance, he was not prejudiced by any ineffective assistance, and his\n\npetition was untimely. However, after meeting with Doe, the Government filed a\n\nletter with the court withdrawing its opposition. The Government requested that\n\nthe court (1) grant the coram nobis petition and (2) transfer the criminal case to the\n\n . At a hearing in , the Government\n\ninformed the court that after examining Second Circuit case law and meeting\n\nwith Doe—whose story the Government credited—the Government believed\n\nthat Doe had received ineffective assistance of counsel. Given the circuit law and\n\nthe factual circumstances, the Government determined that it “could not . . . in\n\ngood conscience oppose the motion.”\n\n\n\n 5\n\f The district court orally denied the petition, stating that it was “not\n\npersuaded.” Doe timely appealed the decision, seeking expedited summary\n\nreversal. This Court determined that the district court’s reasoning could not be\n\ndiscerned from the record; it remanded for the district court to identify the legal\n\nstandard applied and to explain its reasons for denying relief. The district court\n\nthen issued a written opinion denying Doe’s coram nobis petition. The court\n\nstated that no “‘serious constitutional question’ would be raised by withdrawing\n\n[Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly\n\nseems the remedy in this case, if one is even in order.” The court said that “the\n\nExecutive Branch . . . is requesting that the Judicial Branch remedy what the\n\nUnited States Attorney’s Office believes to be a wrong perpetrated by either ICE\n\nor the FBI,” a request which the court did “not believe . . . to be sound, given the\n\nseparation of powers doctrine.” After the district court issued its decision, Doe\n\nreinstated his appeal.\n\n\n\n\n 6\n\f DISCUSSION\n\nI. Standard of Review\n\n “A writ of error coram nobis is an ‘extraordinary remedy’” typically granted\n\nonly when a prisoner is out of custody and so cannot pursue habeas relief. Kovacs\n\nv. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting United States v. Morgan, 346\n\nU.S. 502, 511 (1954)). We review de novo the legal standards that the district court\n\nhas applied but review for abuse of discretion the court’s ultimate decision to\n\ndeny the writ. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).\n\nII. Coram Nobis Relief\n\n The sole issue on appeal is whether the district court improperly denied\n\nDoe’s coram nobis petition. While the Government’s agreement with Doe below\n\nmight normally preclude it from opposing Doe now, see, e.g., Steagald v. United\n\nStates, 451 U.S. 204, 209 (1981); United States v. Gupta, 699 F.3d 682, 690 n.2 (2d\n\nCir. 2012); United States v. Canova, 412 F.3d 331, 347 (2d Cir. 2005), we will\n\nexercise our discretion to consider the matter on the merits, see Bogle-Assegai v.\n\nConnecticut, 470 F.3d 498, 504 (2d Cir. 2006), bearing in mind the concessions the\n\nGovernment has made both below and on appeal.\n\n\n\n 7\n\f To receive coram nobis relief, a petitioner must show “that 1) there are\n\ncircumstances compelling such action to achieve justice, 2) sound reasons exist\n\nfor failure to seek appropriate earlier relief, and 3) the petitioner continues to\n\nsuffer legal consequences from his conviction that may be remedied by granting\n\nof the writ.” Kovacs, 744 F.3d at 49 (quoting Foont v. United States, 93 F.3d 76, 79\n\n(2d Cir. 1996)). 2 The district court neither laid out nor applied these legal\n\nstandards. Instead, it cited cases that asked whether “the failure to allow for\n\ncollateral review would raise serious constitutional questions,” a test used to\n\ndetermine whether untimely habeas petitions alleging constitutional violations\n\n\n\n\n 2 As the Government does not contest the third factor for receiving coram nobis\nrelief, only the first and second factors are at issue here. See Norton v. Sam’s Club, 145\nF.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered\nwaived and normally will not be addressed on appeal.”). However, we note that Doe’s\nconviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M), means that he “shall\nbe conclusively presumed to be deportable,” id. § 1228(c); see id. § 1227(a)(2)(A)(iii), and\nis ineligible for cancellation of removal or adjustment of status, id. § 1229b(a)(3),\n(b)(1)(C). He is also categorically disqualified from proving moral character, id.\n§ 1101(f)(8), which in turn disqualifies him from naturalized citizenship, id. § 1427(a).\nThe fact that his deportation proceedings have been administratively stayed does not\nalleviate these legal consequences, as Doe is still unable to apply for citizenship and\nremains subject to mandatory removal at any moment if the Government removes the\nstay. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (A.G. 2018) (prohibiting the use of\nadministrative closure in most removal cases and requiring all administratively closed\ncases to be re-calendared on the motion of either party unless they were closed pursuant\nto an explicit grant of authority via regulation or judicially approved settlement).\n\n 8\n\fmay be brought under 28 U.S.C. § 2241. Triestman v. United States, 124 F.3d 361,\n\n377 (2d Cir. 1997). Doe argues that the district court applied the wrong legal\n\nstandards, and we agree. Under the correct standards, Doe merits relief.\n\n A. Ineffective Assistance\n\n Doe claims that his attorney misadvised him as to the immigration\n\nconsequences of his plea, and that there is a reasonable probability he would\n\nhave gone to trial, litigated a defense, or negotiated a different plea had he not\n\nbeen misadvised. Ineffective assistance of counsel, including during the plea-\n\nbargaining process, is a circumstance compelling the grant of a timely\n\napplication for coram nobis relief. Kovacs, 744 F.3d at 49. To prove ineffective\n\nassistance, a petitioner must show that “defense counsel’s performance was\n\nobjectively unreasonable” and that “the deficient performance prejudiced the\n\ndefense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “The\n\nquestion of whether a defendant’s lawyer’s representation violates the Sixth\n\nAmendment right to effective assistance of counsel is a mixed question of law\n\nand fact that is reviewed de novo.” LoCascio v. United States, 395 F.3d 51, 54 (2d\n\nCir. 2005) (citation omitted).\n\n\n\n 9\n\f The Government conceded both in the district court and on appeal that\n\nDoe’s counsel’s actions were objectively unreasonable. They were. At the time of\n\nDoe’s plea in , the Supreme Court had not yet held that attorneys must\n\naffirmatively warn their clients of the immigration consequences of their\n\npotential convictions. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). However,\n\nthis court had already held that “an affirmative misrepresentation by counsel as\n\nto the deportation consequences of a guilty plea is . . . objectively unreasonable.”\n\nUnited States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), abrogated on other grounds\n\nby Padilla, 559 U.S. 356.\n\n Doe claims that when he asked his defense counsel about the immigration\n\nconsequences of the proposed plea agreement, counsel indicated that, with Doe’s\n\ncooperation and an ultimate plea of guilty in this nonviolent case, Doe should\n\nnot have a problem with the immigration authorities and should not face\n\ndeportation. An earlier statement by Doe’s defense counsel effectively admitted\n\nas much. The statement noted that counsel neither was a practitioner of nor was\n\nknowledgeable about immigration law; that he and Doe had been assured by the\n\nGovernment that the Government would do everything it could to keep Doe\n\n\n\n 10\n\ffrom being deported; that the attorney and Doe had relied on the Government’s\n\nrepresentations; and that he had not been aware that deportation was mandatory\n\nfor the offense to which Doe was considering pleading guilty. The district court\n\nmade no findings as to the credibility of Doe’s or his attorney’s representations.\n\nThe Government, however, has credited Doe’s description of the events and of\n\nwhat he was told by government agents, and the Government has admitted that\n\ndefense counsel effectively conceded that he provided incorrect information to\n\nDoe as to whether mandatory deportation would result from his plea. Reviewing\n\nthe record de novo, we conclude that there is no genuine dispute as to the fact that\n\ncounsel’s representations to Doe, which inaccurately conveyed that his plea of\n\nguilty to the charge would not make his deportation mandatory, fell below\n\nan objective standard of reasonableness. Couto, 311 F.3d at 187 (finding\n\nineffective assistance when “counsel affirmatively misled [d]efendant into\n\nbelieving there were things that could be done to avoid deportation”).\n\n The question then becomes whether this misadvice prejudiced Doe. The\n\nGovernment asserts that the district court’s decision impliedly found a lack of\n\nprejudice and claims that this holding was not an abuse of discretion. However,\n\n\n\n 11\n\fthe court did not make any clear determination regarding whether Doe had met\n\nthe Strickland standard. Instead, applying an incorrect legal test, the court stated\n\nconclusorily that “[Doe] has not demonstrated that a ‘serious constitutional\n\nquestion’ would be raised by withdrawing his guilty plea at this stage, nor that\n\nany such constitutional question would be remedied by re-opening the\n\nInformation or transferring it to the .” We respectfully think the\n\nquestion is not whether vacating Doe’s conviction would raise a constitutional\n\nquestion, but rather whether allowing his conviction to stand would constitute a\n\nmiscarriage of justice.\n\n Assuming that the district court meant to say that no serious constitutional\n\nquestion would be raised by maintaining Doe’s conviction, we believe the court\n\nneither employed the correct legal standard nor examined whether Doe was\n\nprejudiced under Strickland. We therefore analyze the question ourselves.\n\nPrejudice exists “if it is shown that, but for counsel’s unprofessional errors, there\n\nwas a reasonable probability that the petitioner could have negotiated a plea that\n\ndid not impact immigration status or that he would have litigated an available\n\ndefense.” Kovacs, 744 F.3d at 52. Doe has shown both.\n\n\n\n 12\n\f As a predicate matter, a petitioner alleging ineffective assistance based on\n\nimmigration misadvice must “clearly demonstrate ‘that he placed particular\n\nemphasis on [immigration consequences] in deciding whether or not to plead\n\nguilty.’” Id. (citation omitted). 3 Courts cannot rely solely on “post hoc assertions\n\nfrom a defendant about how he would have pleaded but for his attorney’s\n\ndeficiencies”; we must also “look to contemporaneous evidence to substantiate a\n\ndefendant’s expressed preferences.” Jae Lee v. United States, 137 S. Ct. 1958, 1967\n\n(2017). This evidence shows that Doe was deeply concerned about deportation.\n\n\n\n\n 3 The Government suggests that it was not an abuse of discretion for the district\ncourt to find a lack of prejudice in light of Jae Lee v. United States, 137 S. Ct. 1958 (2017),\nbecause Doe did not show either that deportation was the “determinative issue” for him\nor that he “had a large number of discussions with his counsel” about it. The Jae Lee\nCourt did note that, in that case, deportation was “determinative” for Lee, based on\nLee’s “repeated[]” questioning of his attorney and on the testimony of Lee and Lee’s\nattorney at an evidentiary hearing that Lee would have gone to trial if he had known\nabout the risk of deportation. 137 S. Ct. at 1967-68. But Jae Lee did not say that a\npetitioner must show that immigration consequences were his sole concern, or that he\nhad engaged in a “large” number of immigration-related discussions with counsel.\n(What constitutes a “large” number of discussions the Government does not say,\nthough apparently it is more than the three with which the Government credits Doe.)\nRather, the Court asked whether the petitioner “has adequately demonstrated a\nreasonable probability that he would have rejected the plea had he known that it would\nlead to mandatory deportation.” Jae Lee, 137 S. Ct. at 1967. Thus, Jae Lee did not alter the\nstandard this court set in Kovacs.\n\n 13\n\f While the district court did not hold an evidentiary hearing on the petition,\n\nDoe submitted a declaration stating that during an early conversation with his\n\ncounsel, Doe asked about his immigration situation and his attorney indicated\n\nthat cooperation and an ultimate plea of guilty should not lead to deportation.\n\nCounsel told Doe “that it was not a violent crime, that [Doe] had a green card,\n\nand that essentially [Doe] should ‘be okay.’” When reviewing the plea agreement\n\nthat Doe ultimately signed, Doe asked counsel about the listed penalty of\n\ndeportation—another sign that Doe was particularly concerned about\n\nimmigration consequences—but counsel “soft-peddled the warning in the\n\nagreement as a possible penalty that was put in all agreements for people who\n\nwere not citizens.” The Government credited Doe’s statements below and does\n\nnot challenge them on appeal.\n\n Doe’s defense counsel also said in an earlier statement that he and Doe\n\nwere assured by the Government that they would do everything they could to\n\nkeep Doe in the United States, that the Government was aware of the extreme\n\ndanger Doe would face if he were sent back to his home country, and that\n\ncounsel and Doe relied on the representations the Government gave them at the\n\n\n\n 14\n\ftime of Doe’s plea. These statements buttress Doe’s claim that he would not have\n\npleaded guilty had he known about the deportation consequences of doing so.\n\n Evidence regarding Doe’s background likewise backs up Doe’s later\n\nassertions that he was focused on remaining in the country. His history in the\n\nUnited States, his family circumstances, and his gainful employment all signal\n\nDoe’s strong connection to, and desire to remain in, the United States. See Jae Lee,\n\n137 S. Ct. at 1968 (finding it relevant that “Lee had lived in the United States for\n\nnearly three decades, had established two businesses in Tennessee, and was the\n\nonly family member in the United States who could care for his elderly parents,”\n\nand that “there is no indication that he had any ties to South Korea [as] he had\n\nnever returned there since leaving as a child”). The Government “has given no\n\npersuasive reason to conclude that the likely grave immigration consequences of\n\nhis plea were not of great importance” to Doe. United States v. Gonzales, 884 F.3d\n\n457, 461 (2d Cir. 2018) (per curiam).\n\n While not contemporaneously documented, Doe’s statements regarding\n\nwhat occurred at his plea hearing add to his claim. The Government attempts to\n\nuse the plea hearing against Doe: it points to Doe’s statements during the plea\n\n\n\n 15\n\fhearing to argue that he pleaded guilty after being warned of the immigration\n\nconsequences of his plea. The district court stated that Doe “was instructed that\n\nhis entry of a plea of guilty could result in his deportation given that the value of\n\n exceeded $10,000 and therefore constituted an aggravated felony.”\n\nThe latter part of this statement was clear error. The magistrate judge did ask\n\nDoe, as part of a standard plea colloquy, if he understood that he “may be\n\ndeported as a result of this conviction.” Yet nowhere during the colloquy did the\n\ncourt inform Doe that the crime to which he was pleading guilty constituted an\n\naggravated felony, or what the mandatory consequences of pleading to an\n\naggravated felony would be. And Doe indicated in a declaration that his attorney\n\nmisadvised him further in response to the judge’s question, emphasizing that the\n\njudge said “may be” rather than “would be.” The Government does not\n\nchallenge Doe’s characterization of what occurred during the plea hearing. 4\n\n Given the evidence that Doe was quite concerned about remaining in the\n\ncountry, it is clear that he would have preferred to negotiate a plea that did not\n\n\n\n\n The Government notes that there is no record that Doe’s counsel actually\n 4\n\nstopped the proceedings, as counsel did in Jae Lee. But Jae Lee did not state that actual\nstoppage is required in order to show prejudice. 137 S. Ct. at 1968 & n.4.\n\n 16\n\ftrigger mandatory removal. Likewise, there is “a reasonable probability that the\n\nprosecution would have accepted, and the court would have approved, a deal\n\nthat had no adverse effect on [his] immigration status.” Kovacs, 744 F.3d at 52.\n\nThe Government cited this language in Kovacs in explaining to the district court\n\nwhy it believed Doe’s counsel’s mistaken advice had prejudiced Doe. Therefore,\n\nin joining Doe’s motion, the Government implicitly admitted that a plea might\n\nhave been negotiated without mandatory immigration consequences. There is\n\nalso a reasonable probability that the court would have accepted a plea to a lesser\n\ncharge, since the court ultimately sentenced Doe to probation rather than prison.\n\n The entirety of the Government’s argument to the contrary on appeal is\n\nthat Doe does not cite any alternative charge that could have been brought. But it\n\nwas not necessary to bring a different charge. Doe pleaded to one count of\n\nconspiracy\n\n\n\n\n 17\n\f It was eminently possible to keep the loss amount\n\nbetween and $10,000 by charging Doe for a conspiracy that only\n\nencompassed a few of his documented transactions.\n\n Moreover, while Doe did not point to another charge that could have\n\nformed the basis of a plea, one clearly existed:\n\n\n\n\n There is a\n\nreasonable probability that, had all parties been aware of the possibility of\n\nmandatory deportation, the Government would have been willing to charge Doe\n\nwith based on one or more specific transactions with a total loss amount\n\nunder $10,000—rather than the higher loss and restitution amounts actually\n\ncharged—in exchange for the cooperation that Doe promised in his plea deal.\n\nGiven Doe’s promised cooperation, as well as the Government’s assurances\n\nduring plea negotiations that it would do everything it could to prevent Doe’s\n\nremoval, there is a reasonable probability that the Government would have\n\naccepted charging a lower loss amount.\n\n\n\n\n 18\n\f There is also a reasonable probability that, had Doe known of the\n\nmandatory removal provision, Doe would have litigated an available defense.\n\nDoe asserts that he could have (and would have) tried the case or challenged the\n\nloss figure had he known that a plea would lead to deportation. The Government\n\nresponds that the evidence against Doe was too “overwhelming” to go to trial,\n\nand that Doe would have had no way to successfully challenge the loss amount.\n\nBut this is not entirely certain. There were ways for Doe to challenge both the\n\ncharges themselves and the loss amount. Doe provided some of the evidence\n\nagainst himself during his proffer sessions, which Doe claims he would not have\n\nundertaken had his attorney told him about the possibility of mandatory\n\ndeportation. Doe also might have contested intent, as he believed he had a good\n\nargument that he did not know the purpose of the and\n\nwas just .\n\n To contest the loss amount, Doe could have challenged the extent of his\n\ninvolvement in the scheme and argued that he should be held liable only for the\n\nlosses he himself caused. See United States v. Studley, 47 F.3d 569, 575 (2d Cir.\n\n1995) (holding that “the fact that the defendant is aware of the scope of the\n\n\n\n 19\n\foverall operation is not enough to hold him accountable for the activities of the\n\nwhole operation,” and that the key question is “what role the defendant agreed\n\nto play in the operation”). There was no indication in the complaint that Doe had\n\n“suggested” the crimes that caused the loss. United States v. Germosen, 139 F.3d\n\n120, 130 (2d Cir. 1998). Therefore, Doe could have argued that “[h]e followed\n\ninstructions on potential customers but did not design or\n\ndevelop the scam.” Id. He might then have only been held responsible for the\n\ntransactions he himself made—and Doe had a possible basis to argue that these\n\ntransactions totaled less than $10,000. The criminal complaint stated that Doe and\n\n and that together they caused well over\n\n$100,000 in losses; it did not state how much of the money went to Doe rather\n\nthan —information that could weigh on the nature or extent of\n\nany conspiracy. Doe also claimed that a second person\n\n\n\n\n Thus, there\n\nwas a path available to Doe—albeit a narrow one—to challenge either the\n\n\n\n\n 20\n\fcharges against him or the loss amount had he not cooperated under a mistaken\n\nimpression that he would be safe from removal.\n\n Moreover, the Supreme Court has clarified that “there is more to consider\n\nthan simply the likelihood of success at trial”; the inquiry focuses on the\n\ndefendant’s decision-making process, and “[t]he decision whether to plead guilty\n\nalso involves assessing the respective consequences of a conviction after trial and\n\nby plea.” Jae Lee, 137 S. Ct. at 1966. Here, even if Doe were likely to lose, it would\n\nbe far from irrational for Doe to litigate either the entire charge or the loss\n\namount, given his strong interest in remaining in the country. If Doe had fought\n\nthe charge in the information and lost, he would have had a Guidelines level of\n\n , exposing him to . His plea agreement left him at a\n\nGuidelines level of , for a Guidelines sentence. This difference\n\nin risk is slight enough to pursue even a small possibility of an acquittal or a\n\nsuccessful challenge of the loss figure. See id. at 1966-67. As Doe can show that he\n\nhad a reasonable probability either of negotiating a different plea or of going to\n\ntrial or litigating the loss amount, he has proven that his counsel’s immigration\n\nmisadvice was prejudicial. See Kovacs, 744 F.3d at 53 (“[T]he question is not\n\n\n\n 21\n\fwhether the defense would ultimately have been successful. Rather, the inquiry\n\nis whether the defense was viable and sufficiently promising that [petitioner]\n\nwould have litigated the defense to avoid immigration consequences.”).\n\n B. Sound Reasons for Delay\n\n To receive coram nobis relief, Doe must also show that he provided sound\n\nreasons for his delay in seeking to vacate his conviction. The district court did\n\nnot determine whether Doe had justified his delay. However, we must do so to\n\nresolve Doe’s claim. See Kovacs, 744 F.3d at 54. While “[n]o statute of limitations\n\ngoverns the filing of a coram nobis petition,” id., a petitioner must still show\n\n“sound reasons” for the delay in bringing the petition, Foont, 93 F.3d at 79. To\n\ndecide whether sound reasons exist, the court must focus on “the circumstances\n\nsurrounding the petitioner’s failure to raise the issue earlier rather than the\n\ngovernment’s injury that resulted from the delay.” Id. at 80. “The critical inquiry\n\n. . . is whether the petitioner is able to show justifiable reasons for the delay.” Id.\n\n Doe has provided sufficient reasons to justify his delay. He claims that his\n\nhandlers promised him that he would obtain citizenship or that they would get\n\nhis criminal case dismissed. The Government does not contest Doe’s contentions\n\n\n\n 22\n\fthat his handlers dissuaded him from seeking to vacate his conviction. Instead, it\n\nasserts that the timeline after Doe was denied citizenship in is somewhat\n\nvague, such that a court could plausibly conclude that he had not sufficiently\n\nexplained why he waited five more years before filing his petition. However, as\n\nnoted above, the district court did not actually decide the issue. Abuse-of-\n\ndiscretion review, therefore, is inappropriate here.\n\n In any case, Doe’s declarations provide sufficient justification for his delay.\n\nHe states, and the Government does not dispute, that agents continued to tell\n\nhim after his failed citizenship application that they would be able to provide\n\nhim the relief he sought. Doe’s recollection of a statement that his file was\n\n“a 7 out of 10” and that he should “just hold on and it would be 10 out of 10” and\n\nhe would get the relief he wanted, further explains why Doe continued to rely on\n\nhis handlers rather than a coram nobis petition to address his immigration\n\nproblem.\n\n Nor is the timeline as vague as the Government suggests. Doe clearly\n\nstates that he decided to pursue a petition directly prior to hiring counsel in ,\n\nonce he finally realized that his handlers could not, in fact, gain him citizenship.\n\n\n\n 23\n\fHe then moved with diligence, pausing only to procure the original criminal\n\ncomplaint. These facts clearly differentiate this case from those the Government\n\ncites, in which petitioners provided either patently insufficient justifications or\n\nno justifications at all. See, e.g., United States v. Sash, 374 F. App’x 198, 200 (2d Cir.\n\n2010) (summary order); Jae Hyun Ahn v. United States, 96 F. App’x 43, 44 (2d Cir.\n\n2004) (summary order); Rodriguez v. United States, No. 98 Cr. 00764 MHD, 2012\n\nWL 6082477, at *10 (S.D.N.Y. Dec. 4, 2012). Nor does “the Government . . .\n\nsuggest any tactical reason [Doe] would have delayed pursuit of the writ” absent\n\ncontinued discouragement from his handlers, Kovacs, 744 F.3d at 54—particularly\n\nsince the Government does not contest that Doe repeatedly discussed his desire\n\nto vacate his conviction with the agents. We therefore conclude that Doe’s\n\npetition was timely.\n\nIII. Vacatur of the Plea and Transfer\n\n Having concluded that Doe has met his burden to receive coram nobis\n\nrelief, we must determine the scope of that relief. The plea for relief in Doe’s\n\npetition asks only to vacate his conviction. However, both the petition itself and\n\nthe Government’s letter supporting the petition clearly contemplate vacatur of\n\n\n\n 24\n\fDoe’s guilty plea, as well. Both parties stated at oral argument that if we were to\n\ngrant Doe’s petition, we should also vacate Doe’s plea. We agree. We therefore\n\ndirect the district court to grant Doe’s coram nobis petition and vacate both his\n\nconviction and his plea.\n\n Finally, because the district court denied Doe’s coram nobis petition, it did\n\nnot rule on the Government’s request to transfer Doe’s criminal case to the\n\n . However, both parties consented to this transfer\n\nbelow and agree that such a transfer is the preferred outcome if the district\n\ncourt’s judgment is reversed. Given that “the convenience of the parties, . . . in\n\nthe interest of justice,” clearly favors transfer, Fed. R. Crim. P. 21(b), and that the\n\nparties have given their consent, we hereby direct the district court to transfer\n\nDoe’s underlying criminal case to the for further\n\nproceedings.\n\n CONCLUSION\n\n As we reflect on the Government’s troubling changing positions in this\n\nmatter—after having once rightly concluded that Doe is entitled to relief—we are\n\nreminded of then-Attorney General Robert F. Kennedy’s cautioning words: “It is,\n\n\n\n 25\n\fafter all, not the Department of Prosecution but the Department of Justice . . . .\n\n[T]he interest of the Government . . . is not that it shall win a case, but that justice\n\nshall be done.” 5 For the foregoing reasons, the judgment below is REVERSED,\n\nand the case is REMANDED to the district court with instructions to grant the\n\nwrit, vacate Doe’s plea and conviction, and transfer Doe’s criminal case to the\n\n .\n\n\n\n\n 5\n Robert F. Kennedy, Att’y Gen., Address to the National Conference on Bail and\nCriminal Justice 2 (May 29, 1964) (available in the John F. Kennedy Library).\n\n 26\n[END_CASE]",
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8,443,879 | Muhammad TANVIR, Jameel Algibhah, Naveed Shinwari v. FNU TANZIN, Special Agent, FBI Sanya Garcia, Special Agent, FBI John LNU, Special Agent, FBI Francisco Artusa, Special Agent, FBI John C. Harley III, Special Agent, FBI Steven LNU, Special Agent, FBI Michael LNU, Special Agent, FBI Gregg Grossoehmig, Special Agent, FBI Weysan Dun, Special Agent in Charge, FBI James C. Langenberg, Assistant Special Agent in Charge, FBI John Doe 1, Special Agent, FBI John Doe 2, Special Agent, FBI John Doe 3, Special Agent, FBI John Doe 4, Special Agent, FBI John Doe 5, Special Agent, FBI John Doe 6, Special Agent, FBI | Tanvir v. Tanzin | 2019-02-14 | No. 16-1176 | U.S. Court of Appeals for the Second Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415308/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443879/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 2 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
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"content": "[CASE_METADATA]\nCase name: Muhammad TANVIR, Jameel Algibhah, Naveed Shinwari v. FNU TANZIN, Special Agent, FBI Sanya Garcia, Special Agent, FBI John LNU, Special Agent, FBI Francisco Artusa, Special Agent, FBI John C. Harley III, Special Agent, FBI Steven LNU, Special Agent, FBI Michael LNU, Special Agent, FBI Gregg Grossoehmig, Special Agent, FBI Weysan Dun, Special Agent in Charge, FBI James C. Langenberg, Assistant Special Agent in Charge, FBI John Doe 1, Special Agent, FBI John Doe 2, Special Agent, FBI John Doe 3, Special Agent, FBI John Doe 4, Special Agent, FBI John Doe 5, Special Agent, FBI John Doe 6, Special Agent, FBI\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-14\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]",
"role": "user"
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4,591,185 | UNITED STATES of America, Appellee, v. Scott VALENTE, Defendant-Appellant. | United States v. Valente | 2019-02-15 | 17-2311-cr; August Term, 2018 | U.S. Court of Appeals for the Second Circuit | {"judges": "Raggi, Lynch, Droney", "parties": "", "opinions": [{"author": "DRONEY, Circuit Judge:", "type": "010combined", "text": "17-2311-cr\nUnited States v. Valente\n\n\n\n 17‐2311‐cr\n United States v. Valente \n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4\n 5\n 6 August Term, 2018 \n 7 No. 17‐2311‐cr \n 8\n 9 UNITED STATES OF AMERICA, \n 10 Appellee, \n 11\n 12 v. \n 13\n 14 SCOTT VALENTE, \n 15 Defendant‐Appellant. \n 16\n 17\n 18\n 19 Appeal from the United States District Court \n 20 for the Northern District of New York \n 21 No. 1:15‐cr‐00124‐GLS‐1 \n 22\n 23\n 24 ARGUED: NOVEMBER 1, 2018 \n 25 DECIDED: FEBRUARY 15, 2019 \n 26\n 27\n 28 Before: RAGGI, LYNCH and DRONEY, Circuit Judges. \n 29\n 30\n 31 Appeal from an amended judgment of conviction of the United States \n\n 1\n\n 1 District Court for the Northern District of New York entered on July 21, 2017 \n 2 (Sharpe, J.). The defendant contends that his sentence was procedurally and \n 3 substantively unreasonable and that the district court lacked authority to impose \n 4 the amended restitution order that it imposed on resentencing. We VACATE in \n 5 part the district court’s sentence of incarceration as procedurally unreasonable \n 6 because of an incorrect criminal history finding and REMAND on that issue, but \n 7 we AFFIRM the district court’s imposition of the amended restitution order. \n 8 \n 9 Judge Lynch, Circuit Judge, concurs in a separate opinion. \n10 \n11 \n12 STEVEN D. CLYMER (Richard D. Belliss, Assistant \n13 United States Attorneys, on the brief), for Grant C. \n14 Jaquith, United States Attorney for the Northern \n15 District of New York, Syracuse, NY, for Appellee. \n16 \n17 MOLLY CORBETT (James P. Egan, on the brief), for \n18 Lisa A. Peebles, Federal Public Defender for the \n19 Northern District of New York, Albany, NY, for \n20 Appellant. \n21 \n22 DRONEY, Circuit Judge: \n\n23 Scott Valente (“Valente”) appeals from the district court’s amended \n\n24 judgment of conviction entered on July 21, 2017. He contends that his sentence was \n\n25 procedurally and substantively unreasonable and that the district court lacked \n\n26 authority to impose the amended restitution order on resentencing. We vacate a \n\n27 portion of the district court’s sentence of incarceration as procedurally \n\n\n\n 2\n\n 1 unreasonable because of an incorrect criminal history finding, but we affirm the \n\n 2 amended restitution order. \n\n 3 VALENTE’S GUILTY PLEA AND SENTENCE \n\n 4 On May 11, 2015, Valente pleaded guilty to a three‐count information \n\n 5 charging Securities Fraud in violation of 15 U.S.C. § 78j (Count 1), Mail Fraud in \n\n 6 violation of 18 U.S.C. § 1341 (Count 2), and Obstructing and Impeding the Internal \n\n 7 Revenue Laws in violation of 26 U.S.C. § 7212(a) (Count 3). On November 20, 2015, \n\n 8 the United States District Court for the Northern District of New York (Sharpe, J.) \n\n 9 sentenced Valente to 240 months on each of the first two counts, and 36 months on \n\n10 Count 3, all to run concurrently, and to three years of supervised release. The \n\n11 district court also ordered Valente to pay restitution in the amount of \n\n12 $8,200,579.69. Judgment was entered the same day. Valente appealed, and this \n\n13 Court remanded to the district court to reconsider the assessment of certain \n\n14 criminal history points to Valente’s criminal history score. United States v. Valente, \n\n15 688 F. Appʹx 76, 79–80 (2d Cir. 2017) (summary order). On July 20, 2017, the district \n\n16 court reconsidered its application of those points, applied them again, and \n\n17 resentenced Valente to the same terms of imprisonment and of supervised release \n\n\n 3\n\n 1 as it had previously imposed. The district court also, over defense counsel’s \n\n 2 objection, increased the prior restitution amount to $8,616,113.39. The amended \n\n 3 judgment was entered on July 21, 2017, and a second amended judgment was \n\n 4 entered on August 8, 2017.1 \n\n 5 THE UNDERLYING FRAUDS \n\n 6 This case arises out of frauds that Valente, a former registered investment \n\n 7 broker, perpetrated on the clients of The ELIV Group, LLC (“ELIV”), an \n\n 8 unregistered investment and consulting group that Valente owned and operated \n\n 9 in Albany, New York. Valente established ELIV in 2010 after he was barred in 2009 \n\n10 from associating with Financial Industry Regulatory Authority (“FINRA”) \n\n11 members, based on findings that he had made unauthorized trades for customers \n\n12 and provided false written account information to customers. To establish ELIV \n\n13 and open brokerage accounts on its behalf, Valente arranged for his wife to be the \n\n14 nominal owner of ELIV, even though she had never been registered as a broker or \n\n15 held any type of brokerage license. Valente was ELIV’s de facto owner, as well as \n\n\n\n\n 1 The second amended judgment was entered because of a clerical error, and it is not challenged \n here except for the same reasons as the appeal of the amended judgment. \n\n 4\n\n 1 its manager and sole employee. \n\n 2 Valente recruited investors for ELIV through hotel conferences, seminars, \n\n 3 and references from existing clients, and he used investors’ funds to purchase \n\n 4 various securities. Valente represented that, in exchange for managing these \n\n 5 investments, he would be charging an annual 1% fee. When soliciting investors, \n\n 6 Valente fraudulently stated that ELIV was an accredited investment and \n\n 7 consulting firm. Valente also falsely stated on ELIV’s website that ELIV had \n\n 8 achieved a five year average annual return of 34.5%, even though it had not been \n\n 9 in business for five years and consistently lost money through speculative \n\n10 investments. After Valente obtained investments in ELIV, he continued to deceive \n\n11 investors by, inter alia, creating and mailing monthly performance statements that \n\n12 falsely reported gains in various accounts. \n\n13 Valente further deceived potential investors by falsely representing that \n\n14 ELIV was an approved custodian for tax‐deferred individual retirement accounts \n\n15 (“IRAs”) and that ELIV could open new IRAs and create rollover IRA accounts. In \n\n16 reliance on these misrepresentations, approximately forty‐eight of ELIV’s clients \n\n17 rolled over IRA or other retirement accounts to the purported ELIV IRAs. As a \n\n\n 5\n\n 1 result, these clients lost their tax‐deferred investments and exposed themselves to \n\n 2 early withdrawal penalties. In addition, Valente issued to ELIV investors false \n\n 3 financial account statements to make it appear as if ELIV was holding the \n\n 4 investors’ retirement accounts as legitimate IRA accounts. Some of these altered \n\n 5 statements were then sent to the Internal Revenue Service by accountants who \n\n 6 believed that they were valid, creating potentially adverse tax implications for \n\n 7 investors. \n\n 8 Valente also submitted fraudulent information to the Securities and \n\n 9 Exchange Commission (“SEC”) after it commenced an investigation of ELIV. \n\n10 The SEC moved for a preliminary injunction against Valente and ELIV, \n\n11 which the United States District Court for the Southern District of New York \n\n12 granted in June 2014, ordering Valente and ELIV to cease operations and freezing \n\n13 their assets. The SEC’s analysis of ELIV’s financial records revealed that, between \n\n14 November 2010 and June 2014, Valente, through ELIV, had obtained \n\n15 approximately $10.5 million from more than 100 investors. The SEC investigation \n\n16 revealed that, as of the date of the asset freeze, ELIV had suffered significant losses, \n\n17 as ELIV’s investments were worth approximately $4.7 million less than what \n\n\n 6\n\n 1 investors had provided in principal. It also revealed that these losses were not \n\n 2 attributable solely to poor investment strategy, as Valente had appropriated \n\n 3 approximately $2.2 million of the funds invested for personal expenses, which was \n\n 4 well in excess of the 1% management fee that he had promised investors. \n\n 5 On May 11, 2015, Valente waived indictment and pleaded guilty in the \n\n 6 Northern District of New York. He was sentenced on November 20, 2015, and \n\n 7 resentenced on July 20, 2017, as mentioned above. This appeal revisits certain \n\n 8 criminal history issues discussed in the initial appeal and addresses the amended \n\n 9 restitution order. \n\n10 APPLICATION OF THE SENTENCING GUIDELINES \n\n11 At resentencing, the district court found that Valente’s adjusted offense level \n\n12 under the Sentencing Guidelines was 34, that he fell within Criminal History \n\n13 Category IV, based on eight criminal history points, and that the Guidelines \n\n14 imprisonment range was 210–262 months. \n\n15 Valente’s criminal history includes multiple state convictions related to \n\n16 driving while intoxicated, including two Driving While Ability Impaired \n\n17 (“DWAI”) infractions, a recidivist DWAI misdemeanor, a driving while \n\n\n 7\n\n 1 intoxicated misdemeanor, and a misdemeanor for operating a motor vehicle \n\n 2 without an ignition interlock device.2 \n\n 3 On appeal, Valente first challenges the procedural reasonableness of the \n\n 4 district court’s assignment of two particular criminal history points: one for his \n\n 5 prior state misdemeanor conviction of failing to use a vehicle with an interlock \n\n 6 device, and a second for being a recidivist DWAI offender. Valente had been given \n\n 7 a sixty‐day sentence of imprisonment in state court for the latter conviction. We \n\n 8 consider the district court’s assignment of each point in turn. \n\n 9 Section 4A1.2(c) of the Sentencing Guidelines provides guidance for \n\n10 determining whether “prior sentences” are counted in an offender’s criminal \n\n11 history score. All felonies are counted. U.S.S.G. § 4A1.2(c). Certain prior \n\n12 misdemeanor convictions are not counted if they are listed under § 4A1.2(c)(1) or \n\n13 are similar to the listed offenses. But, an unlisted misdemeanor offense is counted \n\n14 if it is categorically more serious than a listed offense. United States v. Morales, 239 \n\n15 F.3d 113, 118 (2d Cir. 2000). In this context, “categorically more serious” does not \n\n\n\n\n Due to his prior DWAI convictions, Valente was required to install an ignition “interlock device” \n 2 \n\n on his motor vehicle to prevent his operation of the vehicle while intoxicated. \n\n 8\n\n 1 mean that the unlisted offense is “within a category that is more serious than the \n\n 2 [l]isted [o]ffenses” based solely on its underlying elements. Id. at 118 n.5. Rather, \n\n 3 we “use[] the adverb [‘categorically’] in its ordinary sense to mean ‘without \n\n 4 qualification or reservation.’” Id. (quoting Webster’s Third New International \n\n 5 Dictionary (1993) (“categorically”)). In determining whether an offense is \n\n 6 categorically more serious than a listed offense, \n\n 7 the court should use a common sense approach that includes \n 8 consideration of relevant factors such as (i) a comparison of \n 9 punishments imposed for the listed and unlisted offenses, (ii) the \n10 perceived seriousness of the offense as indicated by the level of \n11 punishment; (iii) the elements of the offense, (iv) the level of \n12 culpability involved; and (v) the degree to which the commission of \n13 the offense indicates a likelihood of recurring criminal conduct. \n\n14 U.S.S.G. § 4A1.2 cmt. n.12(A).3 The district court may also consider “any other \n\n15 factor the court reasonably finds relevant in comparing prior offenses and [l]isted \n\n16 [o]ffenses.” United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d Cir. 1999). The \n\n17 misdemeanor interlock device offense is not listed in U.S.S.G. § 4A1.2(c)(1). \n\n\n\n\n The United States Sentencing Commission adopted this multifactor “common sense approach” \n 3 \n\n when it amended Application Note 12 to U.S.S.G. § 4A1.2 in 2007. U.S. Sentencing Guidelines \n Manual supp. to app. C at 237 (2007). But our case law required this approach even before that \n amendment. See Morales, 239 F.3d at 118; United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d \n Cir. 1999). \n\n 9\n\n 1 We review a district court’s interpretation of the Sentencing Guidelines de \n\n 2 novo, but we examine its factual findings only for clear error. United States v. Potes‐\n\n 3 Castillo, 638 F.3d 106, 108–09 (2d Cir. 2011). When reviewing challenged U.S.S.G. § \n\n 4 4A1.2(c) rulings, this Court examines de novo the district court’s determinations \n\n 5 based on an offender’s prior offense that “punishes only one basic form of \n\n 6 conduct,” Morales, 239 F.3d at 117–18, but, where “the inquiry will necessarily \n\n 7 focus on the particular conduct of the defendant, we give due deference to a court’s \n\n 8 application of the Guidelines to the facts.” United States v. DeJesus‐Concepcion, 607 \n\n 9 F.3d 303, 305 (2d Cir. 2010). By extension, we also give due deference to a court’s \n\n10 application of the Guidelines to the facts where, as here, the court considers the \n\n11 particular conduct of the defendant as to the factors listed in Application Note \n\n12 12(A) to U.S.S.G. § 4A1.2. \n\n13 Regarding the prior interlock device conviction, the district court \n\n14 determined that the conviction, coupled with the criminal history that led to that \n\n15 offense, indicated a likelihood of recurring criminal conduct and increased the \n\n16 culpability of the defendant. Valente argues, however, that the district court erred \n\n17 by not considering the other factors listed in Application Note 12(A) to U.S.S.G. § \n\n\n 10\n\n 1 4A1.2, which, he contends, would have led the district court to determine that the \n\n 2 offense was not more serious than those listed. We are not persuaded. The \n\n 3 Application Note (and the cases applying it) identifies the factors as ones that a \n\n 4 district court may consider. See U.S.S.G. § 4A1.2 cmt. n.12(A); see also DeJesus‐\n\n 5 Concepcion, 607 F.3d at 305. Accordingly, the district court is not required to \n\n 6 explicitly indicate that it considered the other listed factors or assign any one of \n\n 7 them particular weight. In any event, the record indicates that the district court \n\n 8 considered other factors, see Joint App’x at 286–87; it simply focused on two factors \n\n 9 that, in its view, made the prior conviction more serious than the listed offenses. \n\n10 Nor did the court err in concluding that, based on the factors that it considered, \n\n11 the interlock device conviction merited the assignment of a criminal history point \n\n12 under § 4A1.1(c). \n\n13 We turn next to Valente’s argument regarding his prior conviction as a \n\n14 recidivist DWAI offender. U.S.S.G. § 4A1.1(b) assigns two points to prior \n\n15 convictions which result in a “sentence of imprisonment of at least sixty days.” \n\n16 The Application Notes to U.S.S.G. § 4A1.2 provide that “[t]o qualify as a sentence \n\n17 of imprisonment, the defendant must have actually served a period of \n\n\n 11\n\n 1 imprisonment on such sentence.” Id. at § 4A1.2 cmt. n.2. If the defendant did not \n\n 2 do so, the Sentencing Guidelines provide for only a one‐point enhancement under \n\n 3 U.S.S.G. § 4A1.1(c). Valente argues that the district court erred in adding a second \n\n 4 criminal history point for this offense because, although the state sentence that was \n\n 5 imposed was for sixty days imprisonment, he had not yet served it because of \n\n 6 medical issues. \n\n 7 Valente argues that the sentence was essentially suspended. The district \n\n 8 court determined that the sentence was not suspended or stayed and that Valente \n\n 9 had not been relieved of his obligation to eventually serve the period of \n\n10 imprisonment. The district court thus concluded that Valente’s unserved sentence \n\n11 satisfied § 4A1.1(b). We disagree because the unambiguous language of the \n\n12 Application Note precludes the district court’s conclusion. It states: “the defendant \n\n13 must have actually served a period of imprisonment on such sentence.” Id. at § 4A1.2 \n\n14 cmt. n.2 (emphasis added). At the time of his resentencing in this case, Valente had \n\n15 not yet served that sentence. As such, to assign two points for that DWAI \n\n16 conviction was error. \n\n17 We recognize that other Circuits have not required strict adherence to the \n\n\n 12\n\n 1 text of the Application Note. See, e.g., United States v. Reid, 827 F.3d 797, 803 (8th \n\n 2 Cir. 2016) (concluding that Guidelines context compels the conclusion that, for § \n\n 3 4A1.1(b) not to be implicated, state must take “affirmative steps” to relieve \n\n 4 defendant of obligation to serve prison time); United States v. Rayborn, 957 F.2d 841, \n\n 5 844–45 (11th Cir. 1992) (affirming assignment of three additional criminal history \n\n 6 points where defendant was free on bond and had not begun serving a prior \n\n 7 sentence at the time he committed the instant offense); United States v. Duffy, 29 \n\n 8 F.3d 625, 625 (5th Cir. 1994) (per curiam) (affirming assignment of additional \n\n 9 criminal history points where defendant had not begun to serve his state \n\n10 sentences). However, not only is the language of the Application Note \n\n11 unambiguous, but a strict reading of this Note accords with “one of the most basic \n\n12 interpretative canons, that [language] should be construed . . . so that no part will \n\n13 be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 \n\n14 U.S. 303, 314 (2009) (internal quotation marks and citations omitted). Any \n\n15 alternative reading ignores the emphasis communicated by the word “actually.” \n\n16 In addition, we conclude that the Application Note’s plain meaning provides a \n\n17 practicable means for gauging the severity of a prior state conviction and sentence \n\n\n 13\n\n 1 because the sentencing methods of states vary significantly, and it is thus, at times, \n\n 2 difficult for the district court to assess the severity of sentences imposed by those \n\n 3 courts. \n\n 4 Because Valente’s prior sentence was not actually served, it was error to \n\n 5 assign an additional criminal history point for that sentence.4 \n\n 6 In its brief, the Government maintained that even if there were error in \n\n 7 assigning the second criminal history point to the recidivist DWAI conviction, it \n\n 8 would be harmless because, without that point, Valente would still have had seven \n\n 9 criminal history points and fallen within Criminal History Category IV, which \n\n10 requires 7, 8, or 9 criminal history points. The error was not harmless, however, \n\n11 because Valente should have been assigned only six criminal history points, \n\n12 placing him in Criminal History Category III. \n\n13 We have concluded that the district court erred in determining that the \n\n14 recidivist DWAI conviction merited the assignment of two criminal history points \n\n\n\n 4 We recognize that there may be cases where the reason that the defendant did not serve his \n sentence appears to lie outside the heartland of the Application Note. In such cases, the plain \n language of the Application Note controls the district court’s guidelines calculation, but it does \n not preclude it from departing or varying from the Guidelines Sentencing Range when the \n particular facts justify such a departure or nonguidelines sentence.\n\n 14\n\n 1 under § 4A1.1(b) based on the plain language of Application Note 12 to U.S.S.G. § \n\n 2 4A1.2. Accordingly, the DWAI conviction only merits the assignment of one \n\n 3 criminal history point under § 4A1.1(c). As the Government conceded at oral \n\n 4 argument, however, § 4A.1.1(c) provides that only four criminal history points \n\n 5 may be added under that subsection, and the four point maximum has already \n\n 6 been met in this case. We held above that Valente’s prior interlock device \n\n 7 conviction merited the addition of one point under § 4A1.1(c), and Valente has \n\n 8 three other prior convictions for which the district court properly assigned three \n\n 9 points under § 4A1.1(c).5 As a result, both of the criminal history points that the \n\n10 district court assigned for Valente’s recidivist DWAI conviction must be \n\n11 disallowed, and Valente’s criminal convictions should have resulted in only four \n\n12 criminal history points rather than six. Because Valente was convicted of the \n\n13 current offenses while under criminal sentences for two other convictions, two \n\n14 points are added under § 4A1.1(d). His resulting criminal history score is six, \n\n15 rather than the eight that the district court used to sentence Valente. \n\n\n\n 5 Valente challenged the assessment of these three criminal history points in his prior appeal, and \n we held that the district court did not err in assessing these points. See Valente, 688 F. App’x at 78‐\n 79. \n\n 15\n\n 1 Valente thus is in Criminal History Category III, rather than Category IV, \n\n 2 pursuant to U.S.S.G. Chapter 5, Part A. His offense level is 34, and his correct \n\n 3 Guidelines Range is therefore 188–235 months, rather than 210–262 months. \n\n 4 Because that error resulted in a higher Guidelines Range, it is prejudicial, and we \n\n 5 remand to the district court for resentencing, applying the correct Guidelines \n\n 6 Range.6 \n\n 7 THE RESTITUTION ORDER \n\n 8 Finally, Valente appeals the district court’s imposition of an amended \n\n 9 restitution order. The government originally calculated the total net loss for all \n\n10 investors to be $8,200,579.69, and the district court used this calculation when \n\n11 imposing the initial restitution order. After Valente filed his notice of appeal for \n\n12 his original sentence, the Government realized it had made an error in the loss \n\n13 calculation by reducing the loss amount by the total net gain of some investors, \n\n14 when that gain was not available to repay the losses to other investors. Thus, the \n\n\n 6 Having remanded on the sentencing issue for procedural error, we need not consider Valente’s \n other arguments as to sentencing. Valente’s other arguments are that (1) the district court \n committed procedural error by refusing to consider the prior conduct and prior sentences of \n similarly situated defendants; (2) the district court committed procedural error by misstating the \n Guidelines calculations in a court exhibit distributed to the parties during resentencing; and (3) \n his sentence is substantively unreasonable. \n\n 16\n\n 1 Government sought to have the restitution order amended to $8,616,113.39. The \n\n 2 district court imposed an amended restitution order for this amount during \n\n 3 resentencing. Valente argues that the district court did not have authority to \n\n 4 amend the restitution order. \n\n 5 In general, when we remand to a district court for resentencing, that remand \n\n 6 is “for limited, and not de novo sentencing.” United States v. Malki, 718 F.3d 178, 182 \n\n 7 (2d Cir. 2013). “When our remand is limited, the mandate rule generally forecloses \n\n 8 re‐litigation of issues previously waived by the parties or decided by the appellate \n\n 9 court.” Id. However, there is a narrow exception providing that “[a] court’s \n\n10 reconsideration of its own earlier decision in a case may . . . be justified in \n\n11 compelling circumstances, consisting principally of (1) an intervening change in \n\n12 controlling law, (2) new evidence, or (3) the need to correct a clear error of law or \n\n13 to prevent manifest injustice.” United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009); \n\n14 see also Malki, 718 F.3d at 182 (“The presumption of limited resentencing may be \n\n15 overcome if issues ‘became relevant only after the initial appellate review’ or if the \n\n16 court is presented with a ‘cogent or compelling reason for resentencing de novo.’”) \n\n17 (quoting United States v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010)). \n\n\n 17\n\n 1 In United States v. Johnson, we permitted the district court to impose \n\n 2 restitution during resentencing on other grounds where the government had not \n\n 3 requested restitution in the initial sentencing and the district court had not \n\n 4 imposed it. 378 F.3d 230, 244 (2d Cir. 2004). There we found that it was clear legal \n\n 5 error to have not imposed restitution pursuant to the Mandatory Victim \n\n 6 Restitution Act (“MVRA”), and that imposing a restitution order on resentencing \n\n 7 was therefore appropriate. Id. Valente conceded at oral argument that, if we found \n\n 8 clear error in the district court’s original restitution order or found a “cogent or \n\n 9 compelling reason for resentencing,” the district court did not err in imposing the \n\n10 greater amount in the amended order. \n\n11 The MVRA required the district court to impose a restitution order \n\n12 requiring Valente to repay each victim in the full amount of his losses due to \n\n13 Valente’s fraudulent scheme. 18 U.S.C. §§ 3663A(a), (b)(1)(B)(i)(II); see also United \n\n14 States v. Dupes, 513 F. 3d 338, 345 (2d Cir. 2008) (“The MVRA makes full restitution \n\n15 mandatory for certain crimes.”). Therefore, it was appropriate for the district court \n\n16 to impose an amended order that required Valente to pay each victim in full, and \n\n\n\n\n 18\n\n1 thus, by correcting the restitution amount during resentencing, the district court \n\n2 did not err. \n\n3 CONCLUSION \n\n4 For the reasons stated above, we VACATE and REMAND in part and \n\n5 AFFIRM in part the district court’s amended judgment. \n\n6 \n\n\n\n\n 19", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368438/", "author_raw": "DRONEY, Circuit Judge:"}, {"author": "GERARD E. LYNCH, Circuit Judge, concurring", "type": "concurrence", "text": "GERARD E. LYNCH, Circuit Judge, concurring:\n\n I fully concur in the opinion of the Court. It is well established that the\n\nrecommended guideline sentencing range is the starting point for sentencing, see\n\nRita v. United States, 551 U.S. 338, 347–48 (2007), and that an error in calculating\n\nthe guidelines recommendation ordinarily requires a remand for a resentencing\n\nthat takes account of the correct guideline range, see Peugh v. United States, 569\n\nU.S. 530, 537 (2013). Since the guideline range was incorrectly calculated here,1\n\nthe vacatur of the sentence and remand for resentencing is required, because the\n\nguideline range is one of the factors that a district court must take into account in\n\nimposing sentence, see 18 U.S.C. § 3553(a)(4)(A), and we must therefore presume\n\n\n\n 1\n Although I agree with my colleagues that the plain language of Application\nNote 2 to U.S.S.G. § 4A1.2 is ultimately controlling, I note that the point is not free from\ndoubt, and that the positions taken by our sister Circuits, discussed at pp. 13-14 of Judge\nDroney’s opinion for the Court, are not without force. It is possible that the Sentencing\nCommission’s “actually served” language was intended to distinguish sentences,\ncommon in many state sentencing regimes, that nominally impose a sentence of\nincarceration, but then suspend that sentence in favor of a term of probation, from\nsentences of incarceration that were intended to be actually served. See United States v.\nReid, 827 F.3d 797, 803 (8th Cir. 2016) (citing U.S.S.G. §§ 4A1.2(a)(3) and (b)(2), which are\nreferenced in Application Note 2). The use of suspended sentences as a vehicle to\nimpose a sentence of probation is common enough that it must have been present to the\nminds of the Sentencing Commissioners, while situations like the one in this case and\nthose in the other cases discussed in our opinion, in which sentenced prisoners seem to\nslip through the cracks in the system, are anomalous, and may not have been fully\nconsidered. In light of the disagreement among the Courts of Appeals about the\napplication of the “actually served” language, the Commission may wish to clarify its\nintended meaning.\n\nthat the inaccurately calculated range may have had an effect on the sentence\n\nimposed.\n\n I add a few words only to emphasize that while the guidelines are the\n\nstarting point, they are most certainly not an end point to the district court’s role\n\nin determining and imposing a just sentence. The technical nature of the error in\n\nthis case is a good example of why that is so.\n\n Congress has commanded that the job of the sentencing judge is to\n\n“impose a sentence sufficient, but not greater than necessary, to comply with the\n\npurposes” of sentencing set forth” in § 3553(a)(2) — roughly paraphrased, the\n\ntraditional purposes of providing just punishment (retribution), affording\n\nadequate specific and general deterrence, protecting the public from future\n\ncrimes the defendant might commit (incapacitation), and providing the\n\ndefendant with necessary correctional treatment (rehabilitation). See 18 U.S.C. §\n\n3553(a)(2)(A)–(D). In making this assessment, the court is instructed to consider,\n\nin addition to the guideline recommendation and the goals of avoiding\n\nunjustified disparity and providing restitution to any victims, “the nature and\n\ncircumstances of the offense and the history and characteristics of the\n\ndefendant.” Id. § 3553(a)(1).\n\n\n 2\n\n The Sentencing Guidelines themselves are to some degree premised on\n\nthose factors. Although many types of crimes can be committed in various ways\n\nthat implicate a broad range of aggravating and mitigating circumstances,\n\nmaking it difficult to reduce the seriousness of a crime to a simple score, the\n\nSentencing Guidelines take account, for each category of crime, of a large number\n\nof such circumstances, and will often (though not always) provide a reasonable\n\n(if imperfect) approximation of the seriousness of the defendant’s crime as\n\ncompared to other violations of the law. With respect to the “history and\n\ncharacteristics of the defendant,” however — an even more difficult assessment\n\nto reduce to a single number — the Guidelines essentially give up, attempting to\n\nassess only the significance and weight of the offender’s record of criminal\n\nconvictions, as a kind of proxy for the much more complex inquiry involved in\n\njudging the defendant’s character.\n\n Moreover, even within the narrow area that the Guidelines attempt to\n\nmeasure, the “criminal history score” and attendant “criminal history categories”\n\nare at best a crude measure of the seriousness of the offender’s record of prior\n\nconvictions. That is not a criticism of the Sentencing Commission, which has\n\ndeveloped a complex and generally reasonable method of scoring prior\n\n\n 3\n\nconvictions; it is simply a recognition of the impossibility of the task. The\n\ncriminal history score can serve at best a rough guide to the seriousness of the\n\ndefendant’s prior adjudicated criminal conduct, and an even rougher way of\n\nassessing the defendant’s overall character.\n\n This case exemplifies the difficulty. Valente has accumulated a striking\n\nnumber of convictions for drunk or impaired driving. All six of his criminal\n\nhistory points, which place him at the top of Criminal History Category III,\n\nderive from his problems with drinking and driving. Criminal defendants can\n\naccumulate six criminal history points in a variety of ways. For example, two\n\nconvictions for armed robbery, for each of which the offender received a sentence\n\nof more than 13 months in prison, would similarly yield six criminal history\n\npoints. So would two non-violent felony fraud convictions with sentences of over\n\n13 months. So would an accumulation of misdemeanor petty larceny convictions\n\nequivalent in number and timing to this defendant’s alcohol and driving\n\nmisdemeanors.\n\n Each of these hypothetical offenders would have the same number of\n\ncriminal history points as Valente. Reasonable people, however, might well see\n\nthese offenders as significantly different, and could differ as to how to rank the\n\n\n 4\n\nseriousness of their records. More importantly, the “character” of each of these\n\noffenders would present (even putting aside every other characteristic that a\n\nhuman being can have, and focusing, solely and somewhat artificially, only on\n\nwhat is demonstrated by the criminal offenses for which he was convicted and\n\npunished) a somewhat different profile, in terms of the likelihood of recidivism\n\nrelevant to the crime of conviction – in this case, financial fraud — and the\n\ndanger presented to the community. The two-time mugger might suggest a\n\nviolent street predator, the recidivist fraudster a professional con artist, the\n\nhabitual shoplifter perhaps a homeless drug addict. And even those profiles\n\nwould be an oversimplified portrait of the “history and characteristics” of a\n\ncomplicated human being. A district judge looking at Valente’s record in light of\n\nall the other information about his history and character presented in a\n\nPresentence Report (“PSR”) might see a hopeless alcoholic, more ill than evil;\n\nalternatively, a judge might see a man who arrogantly persists in trying to beat\n\nthe system and continue to operate a dangerous motor vehicle even when clearly\n\nimpaired, and to evade mechanisms to prevent such conduct. In determining\n\nwhether either of these caricatures is an accurate depiction of the defendant, the\n\ndistrict court, via the PSR and other sources of information such as input from\n\n\n 5\n\nvictims of the crime of conviction and from the defendant’s family members and\n\nfriends, would have much more information at its disposal than simply a score.\n\n Some of that information is highly relevant to assessing the risk that a\n\ndefendant poses to the community, but is completely excluded from the criminal\n\nhistory calculation. In this case, for example, a reasonable judge might think that\n\nValente’s actual record of convictions is of limited relevance in assessing the\n\ndanger that he will commit another fraud: if the judge believed that Valente\n\nsincerely wanted to engage in alcohol treatment and get his alcoholism under\n\ncontrol, he or she might significantly discount his history.2 On the other hand,\n\none factor in the PSR, mentioned only briefly in the Court’s opinion because it is\n\nirrelevant to the issues before this Court, precisely because it plays no role in\n\ncalculating the Guidelines recommendation, would seem unquestionably\n\nrelevant, not only to judging Valente’s overall character, but specifically to\n\nassessing the risk that he would repeat the criminal conduct for which he faces\n\nsentence.\n\n\n 2\n I do not suggest that this is a correct view of Valente’s history; on the cold\nappellate record, I would not presume to judge such a question. I suggest only that,\ndepending on what else the judge knew besides the bare fact of a series of\nalcohol/driving related offenses, this might be a possible conclusion. One can easily\nimagine facts that would lead a judge to take a very different, and much harsher, view\nof these convictions.\n\n 6\n\n For some seventeen years before he began the investment advisory\n\nbusiness through which he committed the fraud for which he was convicted,\n\nValente was a registered investment broker. During that time, he was the subject\n\nof seventeen consumer complaints, and twice filed for bankruptcy. He was\n\neventually fired by the company for whom he worked as a broker and was\n\npermanently barred from employment by regulated financial industry entities\n\n“based on findings that on multiple occasions [he] had made unauthorized,\n\nexcessive, and unsuitable trades for customers and had provided false written\n\naccount information to customers.” PSR ¶ 33.\n\n I do not presume to suggest precisely how much weight those facts should\n\nbear in assessing Valente’s “history and characteristics,” or to attempt to translate\n\nthis factor into a number of days, weeks, or months of incarceration. That\n\ndemanding task is for the district court, which has a fuller picture of the offender\n\nwho stands before it. I would venture to predict, however, that most judges\n\nwould give such a factor more weight in assessing the danger of recidivism than\n\nthey would give to whether his record of impaired driving earned him five or\n\nonly four “criminal history points” in a complex and technical scheme for\n\napproximating the seriousness of his prior criminal convictions.\n\n\n 7\n\n The experienced district judge in this case had before him a multiplicity of\n\nfacts about the defendant, including letters from people who knew him, the\n\nperspective of victims of his fraud, the criminal record discussed above, and the\n\nfact of his regulatory, non-criminal offenses. The judge surely weighed the\n\nguideline recommendation along with these factors in arriving at an appropriate\n\nsentence. It might be that, having been corrected by this Court with respect to the\n\ntechnical error made in calculating the criminal history score (an error, I should\n\nnote, the precise scope of which escaped the government, which initially\n\ndefended the district court’s calculation, and then withdrew its argument by\n\nnoting an aspect of the case that the district court, the government, and even\n\nValente’s own attorney had overlooked), the district court may conclude that a\n\ndifferent sentence is appropriate. Or it might not; the court might conclude that\n\nthe guideline calculation played only a minimal role in its original sentence, and\n\nthat the factors that primarily influenced the selection of a particular sentence as\n\nthe minimum necessary to accomplish the purposes of sentencing outweighed\n\nthen, and outweigh now, the recommended guideline range. That is for the\n\ndistrict court to determine. The Court’s opinion specifically notes that while “the\n\nplain meaning of the Application Note controls the district court’s guidelines\n\n\n 8\n\ncalculation, . . . it does not preclude [the court] from departing or varying from\n\nthe Guidelines Sentencing Range [if] the particular facts justify such a departure\n\nor nonguidelines sentence.” Maj. Op. 14 n.4. This concurrence is essentially a\n\ngloss on, or partial explanation of, that footnote.\n\n Sentencing involves difficult, painful exercises of judgment about the\n\ndegree of punishment that is required in particular cases. It requires a judge to\n\nmeasure and translate into a quantifiable fine or period of incarceration or\n\nsupervision a multiplicity of aspects of a particular crime and offender, while\n\nbalancing a variety of incommensurate goals of sentencing each of which may\n\npull the court in different directions. It is not easily reduced to a formula. That is\n\nwhy the Guidelines are only advisory, and it is why an error in the guideline\n\ncalculation may have a greater or lesser impact — or no impact at all — on the\n\nactual sentence eventually imposed.\n\n We, as an appellate tribunal, can say that in this case an error was made in\n\ncalculating the range of sentences recommended by the Guidelines. It is for the\n\ndistrict court to rebalance the factors that go into its difficult decision, taking that\n\ncorrection into account. Perhaps we will yet be called upon to decide whether the\n\nsentence the district court imposes on remand is a reasonable one. We have not\n\n\n 9\n\nyet undertaken that analysis with respect to the sentence previously imposed,\n\nand nothing in our opinion purports to instruct the district court on what\n\nsentence it should impose. On that understanding, I join fully in that opinion.\n\n\n\n\n 10", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368438/", "author_raw": "GERARD E. LYNCH, Circuit Judge, concurring"}]} | RAGGI | LYNCH | DRONEY | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591185/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: UNITED STATES of America, Appellee, v. Scott VALENTE, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n17-2311-cr\nUnited States v. Valente\n\n\n\n 17‐2311‐cr\n United States v. Valente \n\n 1 In the\n 2 United States Court of Appeals\n 3 For the Second Circuit\n 4\n 5\n 6 August Term, 2018 \n 7 No. 17‐2311‐cr \n 8\n 9 UNITED STATES OF AMERICA, \n 10 Appellee, \n 11\n 12 v. \n 13\n 14 SCOTT VALENTE, \n 15 Defendant‐Appellant. \n 16\n 17\n 18\n 19 Appeal from the United States District Court \n 20 for the Northern District of New York \n 21 No. 1:15‐cr‐00124‐GLS‐1 \n 22\n 23\n 24 ARGUED: NOVEMBER 1, 2018 \n 25 DECIDED: FEBRUARY 15, 2019 \n 26\n 27\n 28 Before: RAGGI, LYNCH and DRONEY, Circuit Judges. \n 29\n 30\n 31 Appeal from an amended judgment of conviction of the United States \n\n 1\n\n 1 District Court for the Northern District of New York entered on July 21, 2017 \n 2 (Sharpe, J.). The defendant contends that his sentence was procedurally and \n 3 substantively unreasonable and that the district court lacked authority to impose \n 4 the amended restitution order that it imposed on resentencing. We VACATE in \n 5 part the district court’s sentence of incarceration as procedurally unreasonable \n 6 because of an incorrect criminal history finding and REMAND on that issue, but \n 7 we AFFIRM the district court’s imposition of the amended restitution order. \n 8 \n 9 Judge Lynch, Circuit Judge, concurs in a separate opinion. \n10 \n11 \n12 STEVEN D. CLYMER (Richard D. Belliss, Assistant \n13 United States Attorneys, on the brief), for Grant C. \n14 Jaquith, United States Attorney for the Northern \n15 District of New York, Syracuse, NY, for Appellee. \n16 \n17 MOLLY CORBETT (James P. Egan, on the brief), for \n18 Lisa A. Peebles, Federal Public Defender for the \n19 Northern District of New York, Albany, NY, for \n20 Appellant. \n21 \n22 DRONEY, Circuit Judge: \n\n23 Scott Valente (“Valente”) appeals from the district court’s amended \n\n24 judgment of conviction entered on July 21, 2017. He contends that his sentence was \n\n25 procedurally and substantively unreasonable and that the district court lacked \n\n26 authority to impose the amended restitution order on resentencing. We vacate a \n\n27 portion of the district court’s sentence of incarceration as procedurally \n\n\n\n 2\n\n 1 unreasonable because of an incorrect criminal history finding, but we affirm the \n\n 2 amended restitution order. \n\n 3 VALENTE’S GUILTY PLEA AND SENTENCE \n\n 4 On May 11, 2015, Valente pleaded guilty to a three‐count information \n\n 5 charging Securities Fraud in violation of 15 U.S.C. § 78j (Count 1), Mail Fraud in \n\n 6 violation of 18 U.S.C. § 1341 (Count 2), and Obstructing and Impeding the Internal \n\n 7 Revenue Laws in violation of 26 U.S.C. § 7212(a) (Count 3). On November 20, 2015, \n\n 8 the United States District Court for the Northern District of New York (Sharpe, J.) \n\n 9 sentenced Valente to 240 months on each of the first two counts, and 36 months on \n\n10 Count 3, all to run concurrently, and to three years of supervised release. The \n\n11 district court also ordered Valente to pay restitution in the amount of \n\n12 $8,200,579.69. Judgment was entered the same day. Valente appealed, and this \n\n13 Court remanded to the district court to reconsider the assessment of certain \n\n14 criminal history points to Valente’s criminal history score. United States v. Valente, \n\n15 688 F. Appʹx 76, 79–80 (2d Cir. 2017) (summary order). On July 20, 2017, the district \n\n16 court reconsidered its application of those points, applied them again, and \n\n17 resentenced Valente to the same terms of imprisonment and of supervised release \n\n\n 3\n\n 1 as it had previously imposed. The district court also, over defense counsel’s \n\n 2 objection, increased the prior restitution amount to $8,616,113.39. The amended \n\n 3 judgment was entered on July 21, 2017, and a second amended judgment was \n\n 4 entered on August 8, 2017.1 \n\n 5 THE UNDERLYING FRAUDS \n\n 6 This case arises out of frauds that Valente, a former registered investment \n\n 7 broker, perpetrated on the clients of The ELIV Group, LLC (“ELIV”), an \n\n 8 unregistered investment and consulting group that Valente owned and operated \n\n 9 in Albany, New York. Valente established ELIV in 2010 after he was barred in 2009 \n\n10 from associating with Financial Industry Regulatory Authority (“FINRA”) \n\n11 members, based on findings that he had made unauthorized trades for customers \n\n12 and provided false written account information to customers. To establish ELIV \n\n13 and open brokerage accounts on its behalf, Valente arranged for his wife to be the \n\n14 nominal owner of ELIV, even though she had never been registered as a broker or \n\n15 held any type of brokerage license. Valente was ELIV’s de facto owner, as well as \n\n\n\n\n 1 The second amended judgment was entered because of a clerical error, and it is not challenged \n here except for the same reasons as the appeal of the amended judgment. \n\n 4\n\n 1 its manager and sole employee. \n\n 2 Valente recruited investors for ELIV through hotel conferences, seminars, \n\n 3 and references from existing clients, and he used investors’ funds to purchase \n\n 4 various securities. Valente represented that, in exchange for managing these \n\n 5 investments, he would be charging an annual 1% fee. When soliciting investors, \n\n 6 Valente fraudulently stated that ELIV was an accredited investment and \n\n 7 consulting firm. Valente also falsely stated on ELIV’s website that ELIV had \n\n 8 achieved a five year average annual return of 34.5%, even though it had not been \n\n 9 in business for five years and consistently lost money through speculative \n\n10 investments. After Valente obtained investments in ELIV, he continued to deceive \n\n11 investors by, inter alia, creating and mailing monthly performance statements that \n\n12 falsely reported gains in various accounts. \n\n13 Valente further deceived potential investors by falsely representing that \n\n14 ELIV was an approved custodian for tax‐deferred individual retirement accounts \n\n15 (“IRAs”) and that ELIV could open new IRAs and create rollover IRA accounts. In \n\n16 reliance on these misrepresentations, approximately forty‐eight of ELIV’s clients \n\n17 rolled over IRA or other retirement accounts to the purported ELIV IRAs. As a \n\n\n 5\n\n 1 result, these clients lost their tax‐deferred investments and exposed themselves to \n\n 2 early withdrawal penalties. In addition, Valente issued to ELIV investors false \n\n 3 financial account statements to make it appear as if ELIV was holding the \n\n 4 investors’ retirement accounts as legitimate IRA accounts. Some of these altered \n\n 5 statements were then sent to the Internal Revenue Service by accountants who \n\n 6 believed that they were valid, creating potentially adverse tax implications for \n\n 7 investors. \n\n 8 Valente also submitted fraudulent information to the Securities and \n\n 9 Exchange Commission (“SEC”) after it commenced an investigation of ELIV. \n\n10 The SEC moved for a preliminary injunction against Valente and ELIV, \n\n11 which the United States District Court for the Southern District of New York \n\n12 granted in June 2014, ordering Valente and ELIV to cease operations and freezing \n\n13 their assets. The SEC’s analysis of ELIV’s financial records revealed that, between \n\n14 November 2010 and June 2014, Valente, through ELIV, had obtained \n\n15 approximately $10.5 million from more than 100 investors. The SEC investigation \n\n16 revealed that, as of the date of the asset freeze, ELIV had suffered significant losses, \n\n17 as ELIV’s investments were worth approximately $4.7 million less than what \n\n\n 6\n\n 1 investors had provided in principal. It also revealed that these losses were not \n\n 2 attributable solely to poor investment strategy, as Valente had appropriated \n\n 3 approximately $2.2 million of the funds invested for personal expenses, which was \n\n 4 well in excess of the 1% management fee that he had promised investors. \n\n 5 On May 11, 2015, Valente waived indictment and pleaded guilty in the \n\n 6 Northern District of New York. He was sentenced on November 20, 2015, and \n\n 7 resentenced on July 20, 2017, as mentioned above. This appeal revisits certain \n\n 8 criminal history issues discussed in the initial appeal and addresses the amended \n\n 9 restitution order. \n\n10 APPLICATION OF THE SENTENCING GUIDELINES \n\n11 At resentencing, the district court found that Valente’s adjusted offense level \n\n12 under the Sentencing Guidelines was 34, that he fell within Criminal History \n\n13 Category IV, based on eight criminal history points, and that the Guidelines \n\n14 imprisonment range was 210–262 months. \n\n15 Valente’s criminal history includes multiple state convictions related to \n\n16 driving while intoxicated, including two Driving While Ability Impaired \n\n17 (“DWAI”) infractions, a recidivist DWAI misdemeanor, a driving while \n\n\n 7\n\n 1 intoxicated misdemeanor, and a misdemeanor for operating a motor vehicle \n\n 2 without an ignition interlock device.2 \n\n 3 On appeal, Valente first challenges the procedural reasonableness of the \n\n 4 district court’s assignment of two particular criminal history points: one for his \n\n 5 prior state misdemeanor conviction of failing to use a vehicle with an interlock \n\n 6 device, and a second for being a recidivist DWAI offender. Valente had been given \n\n 7 a sixty‐day sentence of imprisonment in state court for the latter conviction. We \n\n 8 consider the district court’s assignment of each point in turn. \n\n 9 Section 4A1.2(c) of the Sentencing Guidelines provides guidance for \n\n10 determining whether “prior sentences” are counted in an offender’s criminal \n\n11 history score. All felonies are counted. U.S.S.G. § 4A1.2(c). Certain prior \n\n12 misdemeanor convictions are not counted if they are listed under § 4A1.2(c)(1) or \n\n13 are similar to the listed offenses. But, an unlisted misdemeanor offense is counted \n\n14 if it is categorically more serious than a listed offense. United States v. Morales, 239 \n\n15 F.3d 113, 118 (2d Cir. 2000). In this context, “categorically more serious” does not \n\n\n\n\n Due to his prior DWAI convictions, Valente was required to install an ignition “interlock device” \n 2 \n\n on his motor vehicle to prevent his operation of the vehicle while intoxicated. \n\n 8\n\n 1 mean that the unlisted offense is “within a category that is more serious than the \n\n 2 [l]isted [o]ffenses” based solely on its underlying elements. Id. at 118 n.5. Rather, \n\n 3 we “use[] the adverb [‘categorically’] in its ordinary sense to mean ‘without \n\n 4 qualification or reservation.’” Id. (quoting Webster’s Third New International \n\n 5 Dictionary (1993) (“categorically”)). In determining whether an offense is \n\n 6 categorically more serious than a listed offense, \n\n 7 the court should use a common sense approach that includes \n 8 consideration of relevant factors such as (i) a comparison of \n 9 punishments imposed for the listed and unlisted offenses, (ii) the \n10 perceived seriousness of the offense as indicated by the level of \n11 punishment; (iii) the elements of the offense, (iv) the level of \n12 culpability involved; and (v) the degree to which the commission of \n13 the offense indicates a likelihood of recurring criminal conduct. \n\n14 U.S.S.G. § 4A1.2 cmt. n.12(A).3 The district court may also consider “any other \n\n15 factor the court reasonably finds relevant in comparing prior offenses and [l]isted \n\n16 [o]ffenses.” United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d Cir. 1999). The \n\n17 misdemeanor interlock device offense is not listed in U.S.S.G. § 4A1.2(c)(1). \n\n\n\n\n The United States Sentencing Commission adopted this multifactor “common sense approach” \n 3 \n\n when it amended Application Note 12 to U.S.S.G. § 4A1.2 in 2007. U.S. Sentencing Guidelines \n Manual supp. to app. C at 237 (2007). But our case law required this approach even before that \n amendment. See Morales, 239 F.3d at 118; United States v. Martinez‐Santos, 184 F.3d 196, 206 (2d \n Cir. 1999). \n\n 9\n\n 1 We review a district court’s interpretation of the Sentencing Guidelines de \n\n 2 novo, but we examine its factual findings only for clear error. United States v. Potes‐\n\n 3 Castillo, 638 F.3d 106, 108–09 (2d Cir. 2011). When reviewing challenged U.S.S.G. § \n\n 4 4A1.2(c) rulings, this Court examines de novo the district court’s determinations \n\n 5 based on an offender’s prior offense that “punishes only one basic form of \n\n 6 conduct,” Morales, 239 F.3d at 117–18, but, where “the inquiry will necessarily \n\n 7 focus on the particular conduct of the defendant, we give due deference to a court’s \n\n 8 application of the Guidelines to the facts.” United States v. DeJesus‐Concepcion, 607 \n\n 9 F.3d 303, 305 (2d Cir. 2010). By extension, we also give due deference to a court’s \n\n10 application of the Guidelines to the facts where, as here, the court considers the \n\n11 particular conduct of the defendant as to the factors listed in Application Note \n\n12 12(A) to U.S.S.G. § 4A1.2. \n\n13 Regarding the prior interlock device conviction, the district court \n\n14 determined that the conviction, coupled with the criminal history that led to that \n\n15 offense, indicated a likelihood of recurring criminal conduct and increased the \n\n16 culpability of the defendant. Valente argues, however, that the district court erred \n\n17 by not considering the other factors listed in Application Note 12(A) to U.S.S.G. § \n\n\n 10\n\n 1 4A1.2, which, he contends, would have led the district court to determine that the \n\n 2 offense was not more serious than those listed. We are not persuaded. The \n\n 3 Application Note (and the cases applying it) identifies the factors as ones that a \n\n 4 district court may consider. See U.S.S.G. § 4A1.2 cmt. n.12(A); see also DeJesus‐\n\n 5 Concepcion, 607 F.3d at 305. Accordingly, the district court is not required to \n\n 6 explicitly indicate that it considered the other listed factors or assign any one of \n\n 7 them particular weight. In any event, the record indicates that the district court \n\n 8 considered other factors, see Joint App’x at 286–87; it simply focused on two factors \n\n 9 that, in its view, made the prior conviction more serious than the listed offenses. \n\n10 Nor did the court err in concluding that, based on the factors that it considered, \n\n11 the interlock device conviction merited the assignment of a criminal history point \n\n12 under § 4A1.1(c). \n\n13 We turn next to Valente’s argument regarding his prior conviction as a \n\n14 recidivist DWAI offender. U.S.S.G. § 4A1.1(b) assigns two points to prior \n\n15 convictions which result in a “sentence of imprisonment of at least sixty days.” \n\n16 The Application Notes to U.S.S.G. § 4A1.2 provide that “[t]o qualify as a sentence \n\n17 of imprisonment, the defendant must have actually served a period of \n\n\n 11\n\n 1 imprisonment on such sentence.” Id. at § 4A1.2 cmt. n.2. If the defendant did not \n\n 2 do so, the Sentencing Guidelines provide for only a one‐point enhancement under \n\n 3 U.S.S.G. § 4A1.1(c). Valente argues that the district court erred in adding a second \n\n 4 criminal history point for this offense because, although the state sentence that was \n\n 5 imposed was for sixty days imprisonment, he had not yet served it because of \n\n 6 medical issues. \n\n 7 Valente argues that the sentence was essentially suspended. The district \n\n 8 court determined that the sentence was not suspended or stayed and that Valente \n\n 9 had not been relieved of his obligation to eventually serve the period of \n\n10 imprisonment. The district court thus concluded that Valente’s unserved sentence \n\n11 satisfied § 4A1.1(b). We disagree because the unambiguous language of the \n\n12 Application Note precludes the district court’s conclusion. It states: “the defendant \n\n13 must have actually served a period of imprisonment on such sentence.” Id. at § 4A1.2 \n\n14 cmt. n.2 (emphasis added). At the time of his resentencing in this case, Valente had \n\n15 not yet served that sentence. As such, to assign two points for that DWAI \n\n16 conviction was error. \n\n17 We recognize that other Circuits have not required strict adherence to the \n\n\n 12\n\n 1 text of the Application Note. See, e.g., United States v. Reid, 827 F.3d 797, 803 (8th \n\n 2 Cir. 2016) (concluding that Guidelines context compels the conclusion that, for § \n\n 3 4A1.1(b) not to be implicated, state must take “affirmative steps” to relieve \n\n 4 defendant of obligation to serve prison time); United States v. Rayborn, 957 F.2d 841, \n\n 5 844–45 (11th Cir. 1992) (affirming assignment of three additional criminal history \n\n 6 points where defendant was free on bond and had not begun serving a prior \n\n 7 sentence at the time he committed the instant offense); United States v. Duffy, 29 \n\n 8 F.3d 625, 625 (5th Cir. 1994) (per curiam) (affirming assignment of additional \n\n 9 criminal history points where defendant had not begun to serve his state \n\n10 sentences). However, not only is the language of the Application Note \n\n11 unambiguous, but a strict reading of this Note accords with “one of the most basic \n\n12 interpretative canons, that [language] should be construed . . . so that no part will \n\n13 be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 \n\n14 U.S. 303, 314 (2009) (internal quotation marks and citations omitted). Any \n\n15 alternative reading ignores the emphasis communicated by the word “actually.” \n\n16 In addition, we conclude that the Application Note’s plain meaning provides a \n\n17 practicable means for gauging the severity of a prior state conviction and sentence \n\n\n 13\n\n 1 because the sentencing methods of states vary significantly, and it is thus, at times, \n\n 2 difficult for the district court to assess the severity of sentences imposed by those \n\n 3 courts. \n\n 4 Because Valente’s prior sentence was not actually served, it was error to \n\n 5 assign an additional criminal history point for that sentence.4 \n\n 6 In its brief, the Government maintained that even if there were error in \n\n 7 assigning the second criminal history point to the recidivist DWAI conviction, it \n\n 8 would be harmless because, without that point, Valente would still have had seven \n\n 9 criminal history points and fallen within Criminal History Category IV, which \n\n10 requires 7, 8, or 9 criminal history points. The error was not harmless, however, \n\n11 because Valente should have been assigned only six criminal history points, \n\n12 placing him in Criminal History Category III. \n\n13 We have concluded that the district court erred in determining that the \n\n14 recidivist DWAI conviction merited the assignment of two criminal history points \n\n\n\n 4 We recognize that there may be cases where the reason that the defendant did not serve his \n sentence appears to lie outside the heartland of the Application Note. In such cases, the plain \n language of the Application Note controls the district court’s guidelines calculation, but it does \n not preclude it from departing or varying from the Guidelines Sentencing Range when the \n particular facts justify such a departure or nonguidelines sentence.\n\n 14\n\n 1 under § 4A1.1(b) based on the plain language of Application Note 12 to U.S.S.G. § \n\n 2 4A1.2. Accordingly, the DWAI conviction only merits the assignment of one \n\n 3 criminal history point under § 4A1.1(c). As the Government conceded at oral \n\n 4 argument, however, § 4A.1.1(c) provides that only four criminal history points \n\n 5 may be added under that subsection, and the four point maximum has already \n\n 6 been met in this case. We held above that Valente’s prior interlock device \n\n 7 conviction merited the addition of one point under § 4A1.1(c), and Valente has \n\n 8 three other prior convictions for which the district court properly assigned three \n\n 9 points under § 4A1.1(c).5 As a result, both of the criminal history points that the \n\n10 district court assigned for Valente’s recidivist DWAI conviction must be \n\n11 disallowed, and Valente’s criminal convictions should have resulted in only four \n\n12 criminal history points rather than six. Because Valente was convicted of the \n\n13 current offenses while under criminal sentences for two other convictions, two \n\n14 points are added under § 4A1.1(d). His resulting criminal history score is six, \n\n15 rather than the eight that the district court used to sentence Valente. \n\n\n\n 5 Valente challenged the assessment of these three criminal history points in his prior appeal, and \n we held that the district court did not err in assessing these points. See Valente, 688 F. App’x at 78‐\n 79. \n\n 15\n\n 1 Valente thus is in Criminal History Category III, rather than Category IV, \n\n 2 pursuant to U.S.S.G. Chapter 5, Part A. His offense level is 34, and his correct \n\n 3 Guidelines Range is therefore 188–235 months, rather than 210–262 months. \n\n 4 Because that error resulted in a higher Guidelines Range, it is prejudicial, and we \n\n 5 remand to the district court for resentencing, applying the correct Guidelines \n\n 6 Range.6 \n\n 7 THE RESTITUTION ORDER \n\n 8 Finally, Valente appeals the district court’s imposition of an amended \n\n 9 restitution order. The government originally calculated the total net loss for all \n\n10 investors to be $8,200,579.69, and the district court used this calculation when \n\n11 imposing the initial restitution order. After Valente filed his notice of appeal for \n\n12 his original sentence, the Government realized it had made an error in the loss \n\n13 calculation by reducing the loss amount by the total net gain of some investors, \n\n14 when that gain was not available to repay the losses to other investors. Thus, the \n\n\n 6 Having remanded on the sentencing issue for procedural error, we need not consider Valente’s \n other arguments as to sentencing. Valente’s other arguments are that (1) the district court \n committed procedural error by refusing to consider the prior conduct and prior sentences of \n similarly situated defendants; (2) the district court committed procedural error by misstating the \n Guidelines calculations in a court exhibit distributed to the parties during resentencing; and (3) \n his sentence is substantively unreasonable. \n\n 16\n\n 1 Government sought to have the restitution order amended to $8,616,113.39. The \n\n 2 district court imposed an amended restitution order for this amount during \n\n 3 resentencing. Valente argues that the district court did not have authority to \n\n 4 amend the restitution order. \n\n 5 In general, when we remand to a district court for resentencing, that remand \n\n 6 is “for limited, and not de novo sentencing.” United States v. Malki, 718 F.3d 178, 182 \n\n 7 (2d Cir. 2013). “When our remand is limited, the mandate rule generally forecloses \n\n 8 re‐litigation of issues previously waived by the parties or decided by the appellate \n\n 9 court.” Id. However, there is a narrow exception providing that “[a] court’s \n\n10 reconsideration of its own earlier decision in a case may . . . be justified in \n\n11 compelling circumstances, consisting principally of (1) an intervening change in \n\n12 controlling law, (2) new evidence, or (3) the need to correct a clear error of law or \n\n13 to prevent manifest injustice.” United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009); \n\n14 see also Malki, 718 F.3d at 182 (“The presumption of limited resentencing may be \n\n15 overcome if issues ‘became relevant only after the initial appellate review’ or if the \n\n16 court is presented with a ‘cogent or compelling reason for resentencing de novo.’”) \n\n17 (quoting United States v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010)). \n\n\n 17\n\n 1 In United States v. Johnson, we permitted the district court to impose \n\n 2 restitution during resentencing on other grounds where the government had not \n\n 3 requested restitution in the initial sentencing and the district court had not \n\n 4 imposed it. 378 F.3d 230, 244 (2d Cir. 2004). There we found that it was clear legal \n\n 5 error to have not imposed restitution pursuant to the Mandatory Victim \n\n 6 Restitution Act (“MVRA”), and that imposing a restitution order on resentencing \n\n 7 was therefore appropriate. Id. Valente conceded at oral argument that, if we found \n\n 8 clear error in the district court’s original restitution order or found a “cogent or \n\n 9 compelling reason for resentencing,” the district court did not err in imposing the \n\n10 greater amount in the amended order. \n\n11 The MVRA required the district court to impose a restitution order \n\n12 requiring Valente to repay each victim in the full amount of his losses due to \n\n13 Valente’s fraudulent scheme. 18 U.S.C. §§ 3663A(a), (b)(1)(B)(i)(II); see also United \n\n14 States v. Dupes, 513 F. 3d 338, 345 (2d Cir. 2008) (“The MVRA makes full restitution \n\n15 mandatory for certain crimes.”). Therefore, it was appropriate for the district court \n\n16 to impose an amended order that required Valente to pay each victim in full, and \n\n\n\n\n 18\n\n1 thus, by correcting the restitution amount during resentencing, the district court \n\n2 did not err. \n\n3 CONCLUSION \n\n4 For the reasons stated above, we VACATE and REMAND in part and \n\n5 AFFIRM in part the district court’s amended judgment. \n\n6 \n\n\n\n\n 19\n[END_CASE]",
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4,591,186 | U.S. Bank Nat'l Ass'n v. Bank of America N.A. | 2019-02-15 | 16-3560-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: 28 LEVAL, LIVINGSTON, and CHIN, Circuit Judges.", "parties": "", "opinions": [{"author": "LEVAL, Circuit Judge:", "type": "010combined", "text": "16‐3560‐cv \n U.S. Bank Natʹl Assʹn v. Bank of America N.A. \n \t \t \n 1 UNITED STATES COURT OF APPEALS \n 2 FOR THE SECOND CIRCUIT \n 3 \n\n 4 August Term 2017 \n\n 5 (Argued: November 8, 2017 Decided: February 15, 2019) \n\n 6 Docket No. 16‐3560‐cv \n 7 \n\n 8 U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR (WELLS FARGO \n 9 BANK, NA), AS TRUSTEE (REGISTERED HOLDERS OF CITIGROUP \n10 COMMERCIAL MORTGAGE TRUST 2007‐C6, COMMERCIAL MORTGAGE \n11 PASS‐THROUGH CERTIFICATES, SERIES 2007‐C6), ACTING BY AND \n12 THROUGH SPECIAL SERVICER CWCAPITAL ASSET MANAGEMENT LLC, \n13 \n14 Plaintiff‐Appellant, \n15 \n16 v. \n17 \n18 BANK OF AMERICA N.A., \n19 \n20 Defendant‐Appellee. \n21 \n22 \n\n23 ON APPEAL FROM THE UNITED STATES DISTRICT COURT \n24 FOR THE SOUTHERN DISTRICT OF NEW YORK \n\n25 \n26 \n27 Before: \n28 LEVAL, LIVINGSTON, and CHIN, Circuit Judges. \n29 \n\n30 Appeal by Plaintiff U.S. Bank National Association from orders of the \n31 United States District Court for the Southern District of New York (Paul G. \n\n 1 Gardephe, J.) denying Plaintiff’s motion to retransfer the suit to the United States \n 2 District Court for the Southern District of Indiana, where it was instituted, and \n 3 granting judgment on the pleadings in favor of Defendant Bank of America N.A., \n 4 by reason of untimeliness under the laws of New York. The district court in \n 5 Indiana had transferred the case to New York under 28 U.S.C. § 1631 based on its \n 6 conclusion that the defendant was not subject to personal jurisdiction in Indiana. \n 7 Although we disagree with that conclusion (and therefore with the propriety of \n 8 the transfer under § 1631), we affirm the New York district court’s denial of the \n 9 motion to retransfer to Indiana, treat the original transfer as one made under 28 \n10 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment that the suit was \n11 untimely under the laws of New York. The judgment is VACATED and the case \n12 is REMANDED for further proceedings. \n\n13 Judge CHIN concurs in a separate opinion. \n\n14 \n15 \n16 COLLEEN M. MALLON (Gregory A. Cross, on the brief), \n17 Venable LLP, Baltimore, Maryland, for Plaintiff‐\n18 Appellant. \n19 \n20 ELIZABETH P. PAPEZ (Luke A. Connelly, Stephanie A. \n21 Maloney, on the brief), Winston & Strawn LLP, \n22 Washington, D.C. and New York, New York, for \n23 Defendant‐Appellee. \n24 \n\n25 LEVAL, Circuit Judge: \n\n26 In this suit for breach of contract, Plaintiff U.S. Bank National Association \n\n27 appeals from orders of the United States District Court for the Southern District \n\n28 of New York (Paul G. Gardephe, J.) denying its motion to retransfer the suit to \n\n29 the United States District Court for the Southern District of Indiana, where it was \n\n\n\n ‐ 2 ‐ \n \n\n 1 instituted, and granting judgment on the pleadings in favor of Defendant Bank of \n\n 2 America N.A., by reason of the untimeliness of the suit under New York’s statute \n\n 3 of limitations. The district court in Indiana had transferred the case to New York \n\n 4 under 28 U.S.C. § 1631, based on its conclusion that the suit could not be brought \n\n 5 in Indiana because the Defendant (a nationally chartered bank and citizen of \n\n 6 North Carolina) was not subject to personal jurisdiction in Indiana. \n\n 7 We disagree with the Indiana district court’s conclusion that the Defendant \n\n 8 was not subject to the jurisdiction of the Indiana court, and therefore we \n\n 9 necessarily conclude that the Indiana court’s transfer to New York was not \n\n10 authorized by § 1631. We nonetheless affirm the New York district court’s denial \n\n11 of Plaintiff’s motion to retransfer to Indiana, treat the original transfer as one \n\n12 made under 28 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment of \n\n13 dismissal rendered on the ground that the suit was untimely under the laws of \n\n14 New York. \n\n15 \n\n16 \n\n17 \n\n18 \n\n\n\n ‐ 3 ‐ \n \n\n 1 BACKGROUND \n\n 2 I. The Mortgage Loan Purchase Agreement \n\n 3 In 2007, Defendant Bank of America’s predecessor, LaSalle Bank N.A.,1 \n\n 4 entered into a Mortgage Loan Purchase Agreement (the “MLPA”), for the sale of \n\n 5 a portfolio (of approximately 100 commercial mortgage loans) to an entity2 acting \n\n 6 for the benefit of an investment trust (the “Trust”), for which Plaintiff U.S. Bank \n\n 7 (a nationally chartered bank and citizen of Ohio) serves as Trustee. The MLPA \n\n 8 was supplemented by a Pooling and Servicing Agreement (the “PSA”), which \n\n 9 provided that the purchaser would deposit the loans into the Trust and assign all \n\n10 of its rights under the MLPA to the Trust. \n\n11 In the MLPA, the seller made representations and warranties regarding the \n\n12 loans. These included Representation No. 8 (set forth in the margin),3 which \n\n\n \n 1 LaSalle Bank later merged with Defendant Bank of America. \n\n 2 Citigroup Commercial Mortgage Securities, Inc. was the purchaser under the MLPA \n\n for the benefit of the Trust. \n 3 “Each related Mortgage is a valid and enforceable first lien on the related Mortgaged \n\n Property subject only to . . . [exceptions not relevant here] and the following title \n exceptions . . . (b) covenants, conditions and restrictions, rights of way, easements and \n other matters of public record, none of which, individually or in the aggregate, materially \n and adversely interferes with the current use of the Mortgaged Property or the security intended \n to be provided by such Mortgage or with the Mortgagorʹs ability to pay its obligations under the \n Mortgage Loan when they become due or materially and adversely affects the value of the \n Mortgaged Property . . . .” App. 93. (emphasis added) \n \n ‐ 4 ‐ \n \n\n 1 effectively represented the absence of any restrictions that would interfere with \n\n 2 the mortgagorʹs ability to pay its obligations under the mortgage loan or would \n\n 3 materially and adversely affect the value of the mortgaged property. \n\n 4 The MLPA prescribes specific remedies available to the mortgagee in the \n\n 5 event of a “Document Defect or a Breach” of a representation. App. 79. Pursuant \n\n 6 to Section 3(c), the seller of the loan portfolio (Defendant’s predecessor) \n\n 7 undertook a commitment that, upon receipt of notice of a Document Defect or \n\n 8 Breach, it would: \n\n 9 cure such Document Defect or Breach . . . in all material \n10 respects, or, if such Document Defect or Breach . . . \n11 cannot be cured . . . , (i) repurchase the affected \n12 Mortgage Loan at the applicable Purchase Price . . . , or \n13 (ii) substitute a Qualified Substitute Mortgage Loan for \n14 such affected Mortgage Loan . . . . \n\n15 App. 79. \n\n16 The PSA, in Section 2.03, similarly provides that, after receiving timely \n\n17 notice of a Document Defect or Breach, the seller shall: \n\n18 (i) cure such Document Defect or Breach, as the case \n19 may be, in accordance with Section 3 of the applicable \n20 [MLPA], (ii) repurchase the affected Trust Mortgage \n21 Loan in accordance with Section 3 of the related \n22 [MLPA], or (iii) within two (2) years of the Closing \n\n\n\n\n ‐ 5 ‐ \n \n\n 1 \n 2 Date, substitute a Qualified Substitute Mortgage Loan \n 3 for such affected Trust Mortgage Loan . . . . \n\n 4 App. 247. \n\n 5 II. The Indiana Loan \n\n 6 One of the items in the portfolio sold pursuant to the MLPA, was a $9 \n\n 7 million loan (the “Loan”), which is the subject of this litigation, made in 2007 to \n\n 8 Womenʹs Physicians Group, LLC. Repayment of the Loan was secured in part by \n\n 9 a mortgage on a two‐story commercial building (the “Property”) (then owned by \n\n10 the borrower/mortgagor Womenʹs Physicians Group), which was located on a \n\n11 hospital campus in Indiana. Womenʹs Physicians Group had purchased the \n\n12 Property from Galen Hospital Corporation (the “Hospital”) pursuant to a special \n\n13 warranty deed. The deed includes two title exceptions that run with the \n\n14 property: (1) a use restriction, which, absent the consent of the Hospital, \n\n15 prohibits use of the Property otherwise than as an ambulatory surgery center and \n\n16 medical offices, and (2) a right of first refusal in favor of the Hospital for any sale, \n\n17 transfer, or assignment. \n\n18 In 2012, Women’s Physicians Group lost the major tenant for the Property, \n\n19 was unable to secure a new tenant that would use the Property in a manner that \n\n20 conformed to the use restriction, and consequently defaulted on the Loan. On \n ‐ 6 ‐ \n \n\n 1 December 13, 2012, the Trust, which had acquired the Loan pursuant to the \n\n 2 MLPA, commenced a foreclosure action in Indiana state court against Womenʹs \n\n 3 Physicians Group. The foreclosure court appointed a receiver, who similarly \n\n 4 failed to secure either a tenant or a waiver or modification of the deed \n\n 5 restrictions. \n\n 6 On October 18, 2013, Plaintiff‐Trustee notified Bank of America that it had \n\n 7 violated MLPA Representation No. 8 and demanded that Bank of America cure \n\n 8 the violation or repurchase the Loan, as provided in the MLPA. Bank of America \n\n 9 did not do so. \n\n10 III. The Proceedings Below \n\n11 On September 12, 2014, Plaintiff, as Trustee, brought this action against \n\n12 Bank of America in the Indiana district court, alleging breach of Representation \n\n13 No. 8. Bank of America moved to dismiss the suit, or alternatively to transfer it to \n\n14 the Southern District of New York, asserting that it was not subject to personal \n\n15 jurisdiction in Indiana. The Indiana district court ruled that Bank of America was \n\n16 not subject to personal jurisdiction in Indiana. The Indiana district court \n\n17 transferred the case to the New York district court pursuant to 28 U.S.C. § 1631, \n\n18 which authorizes a federal district court, on the basis of a “want of jurisdiction, . . \n\n\n\n ‐ 7 ‐ \n \n\n 1 . if it is in the interest of justice, [to] transfer such action . . . to any other such \n\n 2 court . . . in which the action . . . could have been brought.”4 It is undisputed that \n\n 3 venue and jurisdiction are proper in the Southern District of New York. \n\n 4 Following the transfer, Plaintiff moved in the New York district court to \n\n 5 retransfer the case to the Indiana district court, arguing that, contrary to the \n\n 6 Indiana district court’s ruling, Bank of America was subject to the court’s \n\n 7 personal jurisdiction in Indiana on several different bases. The New York district \n\n 8 court denied the motion. In the meantime, Bank of America had moved in the \n\n 9 New York district court for judgment on the pleadings. The district court \n\n10 granted that motion, concluding that Plaintiff’s claim for breach of contract was \n\n11 time‐barred under New Yorkʹs six‐year statute of limitations. The court entered \n\n12 judgment in favor of Defendant Bank of America on September 22, 2016. This \n\n13 appeal followed. \n\n\n\n \n 4 28 U.S.C. § 1631 provides for transfers to cure want of jurisdiction, as follows: \n\n \n Whenever a civil action is filed in a court . . . and that court finds that \n there is a want of jurisdiction, the court shall, if it is in the interest of \n justice, transfer such action or appeal to any other such court . . . in which \n the action or appeal could have been brought at the time it was filed or \n noticed, and the action or appeal shall proceed as if it had been filed in or \n noticed for the court to which it is transferred on the date upon which it \n was actually filed in or noticed for the court from which it is transferred. \n ‐ 8 ‐ \n \n\n 1 DISCUSSION \n\n 2 Plaintiff raises a number of arguments on appeal, including that the \n\n 3 Indiana district court erred in finding that Bank of America was not subject to its \n\n 4 jurisdiction, that the New York district court erred in refusing to retransfer the \n\n 5 case to Indiana, and that the New York district court accordingly should not \n\n 6 have entered judgment in favor of Defendant. We address these issues in turn. \n\n\n 7 I. Was Defendant Subject to the Personal Jurisdiction of the Indiana District \n\n 8 Court? \n\n 9 Plaintiff contends that, contrary to the Indiana district court’s ruling, Bank \n\n10 of America was subject to personal jurisdiction in Indiana, both on the basis of \n\n11 general jurisdiction (because of either its waiver or its extensive activities in \n\n12 Indiana) and specific jurisdiction (because of the contractual representations it \n\n13 undertook concerning real property in Indiana and the commitments it \n\n14 undertook in the terms of the MLPA to perform acts in Indiana). We are \n\n15 persuaded that Bank of America made itself subject to Indiana personal \n\n16 jurisdiction in this case. Accordingly, we have no need to consider Plaintiff’s less \n\n17 persuasive arguments that Bank of America was also subject to general Indiana \n\n18 jurisdiction. \n\n\n ‐ 9 ‐ \n \n\n 1 To determine personal jurisdiction, a federal district court applies the long‐\n\n 2 arm statute of the state in which it sits. See Chloé v. Queen Bee of Beverly Hills, LLC, \n\n 3 616 F.3d 158, 163 (2d Cir. 2010). Indianaʹs long‐arm statute authorizes courts to \n\n 4 exercise jurisdiction on any basis permitted by the U.S. Constitution. Advanced \n\n 5 Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. \n\n 6 2014) (“Under Indianaʹs long‐arm statute, Indiana state courts may exercise \n\n 7 personal jurisdiction on a number of prescribed bases, as well as ‘on any basis \n\n 8 not inconsistent with the Constitution of this state or the United States.’”) \n\n 9 (quoting Ind. R. Trial P. 4.4(A)). To comport with due process, a forum state \n\n10 may exercise jurisdiction over an out‐of‐state corporate defendant only if the \n\n11 defendant has ʺcertain minimum contacts with [the State] such that the \n\n12 maintenance of the suit does not offend ʹtraditional notions of fair play and \n\n13 substantial justice.ʹʺ Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, \n\n14 923 (2011) (alteration in original) (quoting Intʹl Shoe Co. v. Washington, 326 U.S. \n\n15 310, 316 (1945)). Specific jurisdiction over an out‐of‐state defendant “is available \n\n16 when the cause of action sued upon arises out of the defendantʹs activities in a \n\n17 state.ʺ Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016). \n\n\n\n\n ‐ 10 ‐ \n \n\n 1 When deciding whether personal jurisdiction over a defendant exists in a \n\n 2 district court that falls outside this Circuit, we need not predict how our sister \n\n 3 circuit would decide the question, ʺsince we are at liberty to decide for ourselves \n\n 4 what the Due Process Clause requires to sustain personal jurisdiction.ʺ Chew v. \n\n 5 Dietrich, 143 F.3d 24, 30 (2d Cir. 1998); see also SongByrd, Inc. v. Estate of Grossman, \n\n 6 206 F.3d 172, 180‐81 (2d Cir. 2000) (applying this circuitʹs case law to decide \n\n 7 whether Louisiana could exercise personal jurisdiction over a defendant). \n\n 8 Although we consider the decisions of our sister circuits, ʺwe are permitted ‐‐ \n\n 9 indeed, required ‐‐ to reach our own conclusionsʺ on issues of federal law. \n\n10 Desiano v. Warner‐Lambert & Co., 467 F.3d 85, 90 (2d Cir. 2006); see also Rates Tech. \n\n11 Inc. v. Speakeasy, Inc., 685 F.3d 163, 173‐74 (2d Cir. 2012) (ʺ[O]ur court is not \n\n12 bound by the holdings ‐‐ much less the dicta ‐‐ of other federal courts of \n\n13 appeal.ʺ). But we ʺdefer conclusivelyʺ to another circuitʹs decision when it \n\n14 addresses a question of state law from a state within that circuit. Desiano, 467 \n\n15 F.3d at 90. \n\n16 1. Applicable Law of Specific Personal Jurisdiction \n\n17 The Supreme Court has set out three conditions for the exercise of specific \n\n18 jurisdiction over a nonresident defendant. See Bristol‐Myers Squibb Co. v. Superior \n\n\n\n ‐ 11 ‐ \n \n\n 1 Court of California, San Francisco Cty., 137 S. Ct. 1773, 1785‐86 (2017). “First, the \n\n 2 defendant must have purposefully availed itself of the privilege of conducting \n\n 3 activities within the forum State or have purposefully directed its conduct into \n\n 4 the forum State.” Id. at 1785 (quoting J. McIntyre Machinery, Ltd. v. Nicastro, 564 \n\n 5 U.S. 873, 877 (2011) (plurality opinion)). “Second, the plaintiff’s claim must arise \n\n 6 out of or relate to the defendant’s forum conduct.” Id. at 1786 (quoting \n\n 7 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). “Finally, \n\n 8 the exercise of jurisdiction must be reasonable under the circumstances.” Id. \n\n 9 (citing Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, \n\n10 113‐114 (1987)). \n\n11 At the first step, the minimum contacts inquiry is “satisfied if the \n\n12 defendant has ‘purposefully directed’ his activities at residents of the forum.” \n\n13 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v. Hustler \n\n14 Magazine, Inc., 465 U.S. 770, 774 (1984)); see also Charles Schwab Corp. v. Bank of Am. \n\n15 Corp., 883 F.3d 68, 82 (2d Cir. 2018) (ʺ[M]inimum contacts . . . exist where the \n\n16 defendant purposefully availed itself of the privilege of doing business in the \n\n17 forum and could foresee being haled into court there.ʺ). \n\n\n\n\n ‐ 12 ‐ \n \n\n 1 To meet the minimum contacts requirement, ʺthe defendantʹs suit‐related \n\n 2 conduct must create a substantial connection with the forum Stateʺ ‐‐ that is, the \n\n 3 ʺdefendant [it]selfʺ must create those contacts, and those contacts must be with \n\n 4 the ʺforum State itself,ʺ not simply with persons who reside there. Walden v. \n\n 5 Fiore, 134 S. Ct. 1115, 1121‐22 (2014) (citation omitted). Thus, although a \n\n 6 defendantʹs contacts with the forum state may be ʺintertwined with [its] \n\n 7 transactions or interactions with the plaintiff or other parties . . .[,] a defendantʹs \n\n 8 relationship with a . . . third party, standing alone, is an insufficient basis for \n\n 9 jurisdiction.ʺ Id. at 1123; see also Bristol‐Myers Squibb, 137 S. Ct. at 1783 (2017) \n\n10 (same). It is “insufficient to rely on a defendantʹs random, fortuitous, or \n\n11 attenuated contacts or on the unilateral activity of a plaintiff with the forum to \n\n12 establish specific jurisdiction.” Waldman v. Palestine Liberation Org., 835 F.3d 317, \n\n13 337 (2d Cir. 2016) (quoting Walden, 134 S. Ct. at 1123) (internal quotation marks \n\n14 omitted). \n\n15 Nor is it sufficient for a plaintiff to show simply that a defendantʹs actions \n\n16 caused an ʺeffectʺ in the forum state where the defendant has not ʺexpressly \n\n17 aimed its conduct at the forum.ʺ Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, \n\n18 732 F.3d 161, 173 (2d Cir. 2013). And “mere injury to a forum resident” is \n\n\n\n ‐ 13 ‐ \n \n\n 1 insufficient. Walden, 134 S. Ct. at 1125; see also SongByrd, 206 F.3d at 181 (rejecting \n\n 2 specific personal jurisdiction over a defendant even if defendant’s action could \n\n 3 be viewed as a “but for” cause of relevant events in forum state); accord Noboa v. \n\n 4 Barceló Corporación Empresarial, SA, 812 F.3d 571, 572 (7th Cir. 2016) (“[T]he \n\n 5 pertinent question is whether the defendant has links to the jurisdiction in which \n\n 6 the suit was filed, not whether the plaintiff has such links ‐‐ or whether the loss \n\n 7 flowed through a causal chain from the plaintiffʹs contacts with the jurisdiction of \n\n 8 suit.ʺ). Similarly, “the fact that harm in the forum is foreseeable . . . is insufficient \n\n 9 for the purpose of establishing specific personal jurisdiction over a defendant.” \n\n10 In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 674 (2d Cir. 2013). \n\n11 Where the underlying dispute involves a contract, we use a ʺhighly \n\n12 realisticʺ approach and evaluate factors such as “prior negotiations and \n\n13 contemplated future consequences, along with the terms of the contract and the \n\n14 partiesʹ actual course of dealing.” Burger King, 471 U.S. at 479. \n\n15 At the second step, we must be satisfied that “the litigation results from \n\n16 alleged injuries that ‘arise out of or relate to’ those activities.” Id. at 472 (quoting \n\n17 Helicopteros, 466 U.S. at 414). We have found that a claim arises out of forum \n\n18 contacts when defendant’s allegedly culpable conduct involves at least in part \n\n\n\n ‐ 14 ‐ \n \n\n 1 financial transactions that touch the forum. Licci, 732 F.3d at 169‐70. And finally, \n\n 2 for the third step, once it is established that the defendant has minimum contacts \n\n 3 with the forum and the cause of action relates to or arises from those contacts, “a \n\n 4 court considers those contacts ʹin light of other factors to determine whether the \n\n 5 assertion of personal jurisdiction would comport with fair play and substantial \n\n 6 justice.ʹʺ Charles Schwab, 883 F.3d at 82 (quoting Licci, 732 F.3d at 170).5 \n\n 7 2. Application \n\n 8 We conclude that Plaintiff met the requirements summarized above for \n\n 9 establishing specific Indiana jurisdiction over Defendant in this case. The central \n\n10 tenets of Plaintiff’s theory of liability are that (i) Defendant breached \n\n11 Representation No. 8 of the MLPA that there were no restrictions on the use of \n\n12 the Indiana Property that would interfere with the mortgagor’s ability to make \n\n13 its payments or adversely affect the value of the Property and (ii) Defendant \n\n14 failed to comply with its contractual commitment to cure the breach. The \n\n\n \n 5 Under the reasonableness inquiry, we evaluate the following factors: (1) the \n burden on the defendant, (2) the interests of the forum state, (3) the plaintiffʹs interest in \n obtaining relief, (4) the ʺinterstate judicial systemʹs interest in obtaining the most \n efficient resolution of controversies,ʺ and (5) ʺthe shared interests of the several States in \n furthering fundamental substantive social policies.ʺ Asahi, 480 U.S. at 113 (citations \n omitted). Although we consider a variety of factors, ʺthe ʹprimary concernʹ is ʹthe \n burden on the defendant.ʹʺ Bristol‐Myers Squibb, 137 S. Ct. at 1780 (quoting World‐Wide \n Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). \n ‐ 15 ‐ \n \n\n 1 restrictions imposed by the Hospital included the clause forbidding use of the \n\n 2 Property except for in a specified manner (which allegedly prevented the \n\n 3 mortgagor from obtaining a new tenant and thus caused it to default on payment \n\n 4 of the Loan), as well as the right of first refusal in favor of the Hospital (which \n\n 5 allegedly interfered with the mortgagor’s ability to pay the Loan and adversely \n\n 6 affected the value of the Property). Plaintiff alleges that Bank of America then \n\n 7 breached its commitments under Section 3(c) of the MLPA to either “cure such . . \n\n 8 . Breach . . . or, if such . . . Breach . . . cannot be cured, [to] (i) repurchase the \n\n 9 affected Mortgage Loan at the applicable Purchase Price . . . or (ii) substitute a \n\n10 Qualified Substitute Mortgage Loan for such affected Mortgage Loan . ” App. At \n\n11 79. Bank of America’s obligation to “cure” the breach, according to Plaintiff’s \n\n12 theory, required it, among other possibilities, to perform some act in Indiana \n\n13 such as obtaining the Indiana Hospital’s consent to relinquish the deed \n\n14 restrictions that prevented the mortgagor from meeting its Loan obligations. \n\n15 Defendant’s alleged breach of its contractual representations involved the \n\n16 existence of restrictions on the use and value of Indiana Property. In addition, the \n\n17 obligations expressly undertaken by Defendant under the MLPA were \n\n18 purposefully directed toward residents of Indiana, and the suit arose from and \n\n\n\n ‐ 16 ‐ \n \n\n 1 related directly to those Indiana contacts. In view of Defendant’s undertaking of \n\n 2 those commitments in the terms of the contract here in question, we see no \n\n 3 reason why obliging Defendant to litigate this claim in Indiana would offend \n\n 4 traditional notions of fair play or substantial justice, or be unreasonable. \n\n 5 II. Was the New York District Court Correct to Deny Plaintiff’s Motion to \n\n 6 Retransfer? \n\n 7 Plaintiff contends that if, as we have concluded, Bank of America was \n\n 8 subject to personal jurisdiction in the Indiana court, the Indiana court could not \n\n 9 lawfully transfer the venue of the action to New York under § 1631, because that \n\n10 statute authorizes transfer only for “want of jurisdiction.” Plaintiff contends \n\n11 accordingly that the New York district court should have granted its motion to \n\n12 send the case back to Indiana and that we should direct that this be done. We \n\n13 disagree. \n\n14 Such a ruling would fail to heed the Supreme Court’s sagacious warning in \n\n15 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988). Confronting a \n\n16 similar circumstance, the Court cautioned, ʺ[T]ransferee courts that feel entirely \n\n17 free to revisit transfer decisions of a coordinate court threaten to send litigants \n\n18 into a vicious circle of litigation,ʺ culminating in a ʺperpetual game of \n\n\n\n ‐ 17 ‐ \n \n\n 1 jurisdictional ping‐pong.ʺ Id. at 816, 818. Although Christianson differed slightly \n\n 2 in that the potentially dueling transfer orders were entered by coordinate courts of \n\n 3 appeals, as opposed to a court of appeals reviewing of a transfer order of a district \n\n 4 court in another circuit, that distinction does not lessen the pertinence or \n\n 5 importance of the Supreme Court’s observation. \n\n 6 If we were to direct that the case be retransferred to Indiana, eventual \n\n 7 review by the Seventh Circuit might well result in a ruling that that circuit, and \n\n 8 not ours, is authoritative on the reach of jurisdiction of the Indiana courts, a \n\n 9 reaffirmance of the Indiana district court’s original ruling that Bank of America is \n\n10 not subject to personal jurisdiction in Indiana, and a reinstitution of the original \n\n11 transfer to the district court in New York. Whether and where it would end \n\n12 could not be predicted. Such a scenario would be intolerable. Regardless of \n\n13 which court is correct in its appraisal of the jurisdiction question, such a duel \n\n14 between courts of transfers and retransfers would subject the parties to \n\n15 unacceptably mounting expenses and delays. If such occurs, the federal court \n\n16 system abjectly fails to perform its mission of deciding cases with reasonable \n\n17 speed and efficiency at reasonable cost to the parties. \n\n\n\n\n ‐ 18 ‐ \n \n\n 1 The New York district court was sensitive to the Supreme Court’s warning \n\n 2 in rejecting Plaintiff’s motion for retransfer to Indiana. Citing Christianson, it \n\n 3 ruled that it would treat the Indiana court’s transfer of venue as the law of the \n\n 4 case. It reviewed the Indiana court’s decision with respect to the absence of \n\n 5 personal jurisdiction over Defendant in Indiana to the extent of ruling that it \n\n 6 found no clear error in that ruling, and thus denied the motion. While we are not \n\n 7 in complete agreement with the New York district court’s ruling (as explained \n\n 8 below) we entirely approve of its rejection of the motion to retransfer to Indiana. \n\n 9 Arguably, the standard for this court’s review of a transfer order of a \n\n10 district court in a different circuit differs from the standard to be exercised by the \n\n11 transferee district court. As we noted in SongByrd, 206 F.3d at 178 n.7, it would \n\n12 be rare for the doctrine of the law of the case to commit a higher court to adhere \n\n13 to a ruling of a lower court. Nonetheless, as noted above, for this court to require \n\n14 retransfer to the Indiana district court based on our conclusion that the Indiana \n\n15 court erred would give rise to the same unacceptable use of the parties as a ping‐\n\n16 pong ball as if the retransfer order were made by the transferee district court. \n\n17 Plaintiff has not shown that litigating in New York would subject it to any great \n\n18 inconvenience or unfairness. Allowing the case to remain in the Southern District \n\n\n\n ‐ 19 ‐ \n \n\n 1 of New York, notwithstanding that the Indiana court’s transfer order was based \n\n 2 on a mistake of law, is a far lesser evil than subjecting the parties to the further \n\n 3 expense and delay of a retransfer, with the attendant risk of still further rounds \n\n 4 of transfers. \n\n 5 Because the transfer of venue was not available under § 1631, which \n\n 6 authorizes transfers only for want of jurisdiction, we think it is our best course to \n\n 7 treat the erroneous § 1631 transfer as a transfer under 28 U.S.C. § 1404(a) “[f]or \n\n 8 the convenience of [the] parties and witnesses, in the interest of justice.”6 The \n\n 9 interest of justice and the convenience of the parties are served by a transfer \n\n10 under § 1404(a) in that it spares the parties from the intolerable expenses, delays, \n\n11 and attendant burdens that would result from having the case batted back and \n\n\n\n\n \n 6 “For the convenience of parties and witnesses, in the interest of justice, a district court \n\n may transfer any civil action to any other district or division where it might have been \n brought or to any district or division to which all parties have consented.” 28 U.S.C. \n § 1404(a). While the Indiana district court expressly relied on § 1631 as authority for the \n transfer, see U.S. Bank Nat’l Ass’n v. Bank of America N.A., No. 1:14‐cv‐01492, 2015 WL \n 5971126, at *10 (S.D. Ind. Oct. 14, 2015) (“[T]he Court concludes that it does not have \n personal jurisdiction over Bank of America. As a result, the Court TRANSFERS this \n case to the Southern District of New York, pursuant to 28 U.S.C. § 1631.”), the court also \n observed, although making no findings relating to the convenience of the parties and \n witnesses or the interest of justice, that transfer would also be appropriate under \n § 1404(a). Id. \n ‐ 20 ‐ \n \n\n 1 forth from district to district, and that it positions a court to fulfill the mission of \n\n 2 the judicial system by deciding the case. \n\n 3 The New York district court denied the Plaintiff’s motion to retransfer on \n\n 4 the ground that the Indiana court’s transfer under § 1631 for want of jurisdiction \n\n 5 was not clearly erroneous. We see the issue somewhat differently. To say that the \n\n 6 Indiana court’s transfer order was not clearly erroneous does not say it was not \n\n 7 erroneous. Because Bank of America was subject to personal jurisdiction in the \n\n 8 Indiana court, that court’s transfer of venue under § 1631 was not in accordance \n\n 9 with law. Nonetheless, transfer of venue to the Southern District of New York \n\n10 would have been appropriate under § 1404(a). Giving regard to Plaintiff’s failure \n\n11 to show that it would suffer great harm in being compelled to litigate its case in \n\n12 New York instead of in the forum it chose, the unjust burdens that the courts \n\n13 would inflict on the parties by shuttling them back and forth between Indiana \n\n14 and New York, and the Supreme Court’s warnings in Christianson, we find it \n\n15 preferable to affirm the New York district court’s denial of retransfer on a \n\n16 different basis than that court relied on. Accordingly, we affirm the New York \n\n17 district court’s denial of Plaintiff’s motion for retransfer to Indiana, treating the \n\n\n\n\n ‐ 21 ‐ \n \n\n 1 Indiana transfer order as if issued under § 1404(a) and finding such a transfer to \n\n 2 be lawful. \n\n 3 III. Did the New York District Court Err in Granting Defendant’s Motion for \n\n 4 Judgment on the Pleadings under Rule 12(c)? \n\n 5 In denying Plaintiff’s motion to retransfer to Indiana, the New York \n\n 6 district court treated the Indiana court’s transfer order as lawful and efficacious \n\n 7 not only as a transfer of venue to New York, but also as a determination that \n\n 8 Bank of America was not subject to personal jurisdiction in the Indiana court and \n\n 9 that the case would accordingly be decided under the laws of New York, the \n\n10 transferee state. The court explained, “If a district court receives a case pursuant \n\n11 to a transfer under . . . 28 U.S.C. § 1631, for want of jurisdiction, it logically \n\n12 applies the law of the state in which it sits, since the original venue, with its \n\n13 governing laws, was never a proper option.” U.S. Bank Nat’l Ass’n v. Bank of \n\n14 America N.A., No. 15 Civ. 8153, 2016 WL 5118298, at *12 (S.D.N.Y. Sept. 20, 2016) \n\n15 (quoting Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010)). While we agree with \n\n16 that proposition, we find it has no application to this case because, in our view, \n\n17 Bank of America was subject to personal jurisdiction in the Indiana district court, \n\n18 and the original venue, with its governing laws, was a proper option. While we \n\n\n\n ‐ 22 ‐ \n \n\n 1 affirm the New York district court’s denial of Plaintiff’s motion to retransfer to \n\n 2 Indiana, we do not affirm the propriety of the original transfer for want of \n\n 3 jurisdiction under § 1631. We instead affirm the transfer as if made under § 1404(a) \n\n 4 by a court that had jurisdiction of the case. \n\n 5 A transfer under § 1404(a) by a court that has jurisdiction of the case has \n\n 6 different consequences from a transfer under § 1631 by a court that lacks \n\n 7 jurisdiction of the case. Transfers under § 1404(a) by a court that has jurisdiction \n\n 8 are adjudicated in the transferee state under the law of the transferor state. This \n\n 9 is to avoid the unfairness of having a discretionary transfer done for convenience \n\n10 change the law under which the case will be decided. See Van Dusen v. Barrack, \n\n11 376 U.S. 612, 633‐34 (1964); 17 Moore’s Federal Practice § 111.20[1][b] (3d ed. \n\n12 2018) (“[W]hen a case is transferred under Section 1404(a), Van Dusen requires \n\n13 the same choice of law analysis that would have been applied in the transferor \n\n14 court to be conducted in the transferee court, which may require the transferee \n\n15 court to apply its own law, the law of the transferor court, or some other state’s \n\n16 law.”). \n\n17 Under the New York district court’s analysis, Indiana’s 10‐year statute of \n\n18 limitations and its choice of law rules had no pertinence because the case was \n\n\n\n ‐ 23 ‐ \n \n\n 1 never properly lodged in the Indiana court. The transfer under § 1631 to New \n\n 2 York mandated the application of New York’s six‐year statute of limitations, \n\n 3 under which the suit was untimely. Our disposition requires that the New York \n\n 4 district court treat the case as one properly filed in Indiana, applying Indiana’s \n\n 5 choice of law rules to determine whether the suit was timely filed. We therefore \n\n 6 vacate the New York district court’s grant of Bank of America’s motion for \n\n 7 judgment on the pleadings. We express no view on the question whether the suit \n\n 8 was timely filed, when that question is judged under Indiana’s choice‐of‐law \n\n 9 rules, as appropriate for a suit properly brought in Indiana and subsequently \n\n10 transferred to New York under § 1404(a). \n\n11 IV. Response to Judge Chin’s Concurrence", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368439/", "author_raw": "LEVAL, Circuit Judge:"}, {"author": "12 Judge Chin’s concurring", "type": "concurrence", "text": "12 Judge Chin’s concurring opinion expresses doubt whether Bank of America, \n\n13 as the successor entity following its merger with LaSalle, is subject to personal \n\n14 jurisdiction where LaSalle’s activities in relation to the events giving rise to liability \n\n15 would have subjected LaSalle to specific jurisdiction in a suit alleging breach of \n\n16 LaSalle’s contracts. Our first answer is that this issue is not in the case, having been \n\n17 forfeited, and/or waived, by Bank of America. See United States v. Quiroz, 22 F.3d \n\n18 489, 490‐91 (2d Cir. 1994) (argument not raised on appeal is deemed abandoned, \n\n\n\n ‐ 24 ‐ \n \n\n 1 unless manifest injustice otherwise would result); see also Fed. R. Civ. P. 12(h)(1) \n\n 2 (“A party waives a[] defense [of lack of personal jurisdiction] by . . . failing to \n\n 3 either: (i) make it by motion . . . or (ii) include it in a responsive pleading . . . .”). \n\n 4 Bank of America has not argued in this appeal that it is not subject to personal \n\n 5 jurisdiction in Indiana for that reason. Indeed, so far as we are aware, Bank of \n\n 6 America has never raised that argument in this litigation, notwithstanding its \n\n 7 persistent objection, based on other grounds, to personal jurisdiction in Indiana. \n\n 8 Its argument has been that it is not subject to Indiana jurisdiction because LaSalle, \n\n 9 in negotiating and entering the contract in New York, did not subject itself to \n\n10 Indiana jurisdiction. In fact, in framing its arguments against Indiana jurisdiction, \n\n11 Bank of America has repeatedly acknowledged that LaSalle’s actions in \n\n12 negotiating, drafting, and entering into the MLPA are imputed to Bank of America \n\n13 for the purpose of analyzing where Bank of America is subject to personal \n\n14 jurisdiction, effectively conceding that if LaSalle’s actions would make it subject to \n\n15 personal jurisdiction in Indiana, Bank of America is also subject. See, e.g., Br. of \n\n16 Def.‐Appellee at 33; Def.’s Memo. Opp. Pl.’s Mot. Retransfer (App. 2772‐73); Def.’s \n\n17 Reply Memo. Supp. Mot. Transfer (App. 2191); Def.’s Memo. Supp. Mot. Transfer \n\n18 (App. 46); see also Def.’s Memo. Opp. Pl.’s Mot. Retransfer (App. at 2784) \n\n\n\n ‐ 25 ‐ \n \n\n 1 (recognizing that “[t]he Transferor Court correctly focused its analysis on [Bank of \n\n 2 America’s] (and LaSalle’s) activities with respect to the MLPA and PSA” in \n\n 3 determining whether it had specific jurisdiction over Bank of America) (emphasis \n\n 4 added). \n\n 5 Because the issue is forfeited, we do not rule on it. We nonetheless observe \n\n 6 that we can see no reason why, in a suit to enforce a merger partner’s contract, the \n\n 7 entity that survives the merger should not be subject to personal jurisdiction in \n\n 8 whatever court the actions of the merger partner in relation to the contract would \n\n 9 have made the merger partner subject. Upon a merger between two (or more) \n\n10 corporations, each of the merger partners is deemed to survive in the merged \n\n11 entity, and the surviving entity is therefore liable for the liabilities of the \n\n12 corporations that joined in the merger. According to James D. Cox & Thomas Lee \n\n13 Hazen, 4 Treatise of the Law of Corporations § 22:8, “A distinguishing feature of \n\n14 a business combination carried out as a merger or consolidation is that by \n\n15 operation of law the surviving corporation is subject to all the liabilities of the \n\n16 acquired companies.” “In contrast,” the treatise explains, “when the combination \n\n17 is structured as an asset or stock purchase‐sale, absent special circumstances, the \n\n18 acquiring company is subject only to those liabilities it has agreed to assume.” Id. \n\n\n\n ‐ 26 ‐ \n \n\n 1 Because a successor by merger is deemed by operation of law to be both the \n\n 2 surviving corporation and the absorbed corporation, subject to all the liabilities of \n\n 3 the absorbed corporation, we see no reason to doubt that Bank of America, as the \n\n 4 surviving entity, would be subject to jurisdiction in Indiana in a suit based on \n\n 5 breach of LaSalle’s contract if LaSalle’s Indiana‐directed actions in relation to the \n\n 6 contract would have made Lasalle subject to Indiana jurisdiction. (In contrast, the \n\n 7 theory of general jurisdiction would allow the suit against the successor by merger \n\n 8 only in those jurisdictions where the defendant corporation at the time of filing is \n\n 9 “essentially at home,” see Daimler AG v. Bauman , 517 U.S. 117, 122 (2014) and not \n\n10 in places where, prior to the merger, the absorbed merger partner was at home.) \n\n11 Furthermore, if the rule were as Judge Chin suggests, the rule would be \n\n12 subject to serious abuse: a corporation liable to suit in a state in which it does not \n\n13 wish to be sued could simply arrange a merger with a dummy corporation and \n\n14 thus avoid being subject to an undesired jurisdiction in the state where its actions \n\n15 incurred the liability. \n\n16 We think Judge Chin has misread the New York precedent he cites. He relies \n\n17 on a short passage from BRG Corp. v. Chevron U.S.A., Inc., 82 N.Y.S.3d 798, 799 \n\n18 (N.Y. App. Div. 2018), which quotes from and adopts the rule stated in Semenetz \n\n\n\n ‐ 27 ‐ \n \n\n 1 v. Sherling v. Walden Inc., 801 N.Y.S.2d 78 (N.Y. App. Div. 2005), aff’d on other \n\n 2 grounds 851 N.E.2d 1170 (N.Y. 2006). The line of authority Judge Chin cites does \n\n 3 not apply to successor liability that results from a merger. \n\n 4 What those New York decisions reveal is that the answer to our question—\n\n 5 whether liability as a successor in interest also entails being subject to personal \n\n 6 jurisdiction where the actions of the predecessor would have made the \n\n 7 predecessor subject—depends on the basis of the successor liability. The fair \n\n 8 inference of the precedents is that, while successor liability based on acquisition of \n\n 9 a predecessor’s assets does not necessarily make the defendant also amenable to \n\n10 jurisdiction where the predecessor’s actions would have made the predecessor \n\n11 subject to specific jurisdiction, the rule is different where the successor liability of \n\n12 the defendant derives from a merger with the predecessor. So far as appears from \n\n13 the decisions, none of Judge Chin’s cases involves successor liability based on \n\n14 merger; nonetheless, these decisions imply, indeed virtually state, that where the \n\n15 successor status is based on merger, the merged entity is subject to jurisdiction \n\n16 wherever its merger partner’s actions would have made the merger partner \n\n17 subject in a suit based on the merger partner’s liability. \n\n\n\n\n ‐ 28 ‐ \n \n\n 1 In Semenetz, the plaintiff, who was injured in New York while operating a \n\n 2 sawmill brought a New York personal injury action for products liability against \n\n 3 an Alabama corporation (identified as “Sawmills”), which had purchased the \n\n 4 assets of the company (“Edger”) that had sold the sawmill to plaintiff’s New York \n\n 5 employer. The plaintiff sought to impose both New York jurisdiction and liability \n\n 6 on Sawmills based on the argument that Sawmills, having purchased the assets of \n\n 7 Edger, was subject to “successor liability” under either the so‐called “product line” \n\n 8 or “continuing enterprise” exceptions to “the general rule [that] a corporation \n\n 9 which acquires the assets of another is not liable for the torts of its predecessor.” \n\n10 Semenetz, 801 N.Y.S.2d at 80. The Appellate Division ruled, “[T]he ‘product line’ \n\n11 and ‘continuing enterprise’ exceptions [to nonliability of successor entities] deal \n\n12 with the concept of tort liability, not jurisdiction.” Id. at 81. Therefore, even \n\n13 assuming that Sawmills was liable under a products liability claim for the tort of \n\n14 Edger, whose assets it had purchased, its successor liability did not render it \n\n15 subject to New York jurisdiction, as Edger would have been. However, in the very \n\n16 next sentence, the decision explicitly “recognize[d]” that, in contrast, “in certain \n\n17 circumstances the successor corporation ‘may inherit its predecessor’s \n\n18 jurisdictional status,’” and cited to a number of cases addressing those \n\n\n\n ‐ 29 ‐ \n \n\n 1 circumstances. Id. Among the cases cited by Semenetz with approval as discussing \n\n 2 circumstances where the successor to the predecessor’s liability also “inherits” the \n\n 3 predecessor’s jurisdictional status is Schenin v. Micro Copper Corp., 272 F. Supp. 523, \n\n 4 526 (S.D.N.Y. 1967), which recognized that, had the successor liability been based \n\n 5 on merger (as opposed to successor liability based on purchase of assets), the \n\n 6 successor would “inherit” the predecessor’s jurisdictional status. \n\n 7 The Schenin suit was brought in New York against an out‐of‐state \n\n 8 corporation, Micro Copper Corporation (“Micro”), as successor to the liability of \n\n 9 Vanura Uranium (“Vanura”), on the theory that Micro, having purchased the \n\n10 assets of Vanura, was not only liable for Vanura’s liabilities but also subject to \n\n11 jurisdiction where Vanura would have been subject. The court ruled that where \n\n12 the theory of successor liability is based on the successor’s purchase of the \n\n13 predecessor’s assets, the successor is not rendered subject to jurisdiction where the \n\n14 predecessor would have been subject in such a suit. The court, however, explicitly \n\n15 contrasted successor liability based on purchase of the predecessor’s assets with \n\n16 successor liability based on a merger with the predecessor, stating, “The \n\n17 insurmountable hurdle in plaintiff’s path [in seeking to subject the defendant to \n\n18 New York jurisdiction on the basis of its successor liability] is the sound distinction \n\n\n\n ‐ 30 ‐ \n \n\n 1 in law between a statutory merger and an acquisition of assets.” Schenin, 272 F. \n\n 2 Supp. at 526. The court observed that the plaintiff “has sought through ambiguous \n\n 3 rhetoric and disproven implication” to represent Micro’s acquisition as a merger, \n\n 4 but had “failed to adduce a single shred of probative evidence that the transaction \n\n 5 . . . was anything but an acquisition of assets . . . .” Id. \n\n 6 In other words, while the holding of Semenetz was that successor liability on \n\n 7 the basis of the “product line” or “continuing enterprise” exceptions to successor‐\n\n 8 nonliability does not confer on the successor the jurisdictional status of the \n\n 9 predecessor, the decision explicitly recognizes that the rule is otherwise when the \n\n10 successor status results from merger with the predecessor. \n\n11 As noted, Judge Chin cites a sentence from BRG, which relies on, and \n\n12 substantially quotes from, the Semenetz precedent. In BRG, the plaintiff brought a \n\n13 New York suit against Valero Energy Corporation (“Valero”), a foreign \n\n14 corporation, asserting liability to recover the costs of remediating environmental \n\n15 contamination that was caused by Valero’s “predecessor[] in interest.” BRG, 82 \n\n16 N.Y.S.3d at 798. The court of first instance had denied Valero’s motion to dismiss \n\n17 for lack of jurisdiction, reasoning that Valero “was the successor in interest to a \n\n18 company that was itself subject to personal jurisdiction in New York.” Id. at 799. \n\n\n\n ‐ 31 ‐ \n \n\n 1 The Appellate Division reversed explicitly basing its decision on the Semenetz \n\n 2 precedent, ruling that while Valero’s status as a successor might make it liable for \n\n 3 its predecessor’s tort, its successor status did not subject it to personal jurisdiction \n\n 4 in New York merely because its predecessor was so subject. BRG did not explain \n\n 5 the basis for deeming Valero a successor in interest to the tortfeasor. The decision \n\n 6 says nothing to suggest that Valero had merged with the predecessor. Because (a) \n\n 7 the BRG court deemed the Semenetz precedent to be controlling, (b) the Semenetz \n\n 8 court had distinguished successorship resulting from merger from the \n\n 9 successorship involved in that case, and (c) nothing in the BRG decision indicated \n\n10 that the defendant’s successor status resulted from merger with the obligor, BRG’s \n\n11 ruling expressed in its quotation from Semenetz presumably did not involve \n\n12 successorship through merger. If it had, the BRG ruling would have been contrary \n\n13 to the rule expressed by the Semenetz decision, which BRG purported to follow. \n\n14 Indeed, BRG recognized as per Semenetz that in some circumstances (unlike the \n\n15 facts of BRG) a successor entity does “inherit jurisdictional status.” Id. at 799. BRG \n\n16 therefore does not support the proposition that a successor by merger is not subject \n\n17 to jurisdiction where its merger partner’s actions would have subjected the merger \n\n18 partner to jurisdiction for breach of its contracts. \n\n\n\n ‐ 32 ‐ \n \n\n 1 Judge Chin may have been misled by the BRG’s slight misquotation of the \n\n 2 Semenetz precedent. In its critical sentence that was quoted in the BRG opinion, the \n\n 3 Semenetz court had made clear that it was “[t]he ‘product line’ and ‘continuing \n\n 4 enterprise’ exceptions to the [nonliability of a successor that] deal with the concept \n\n 5 of tort liability, not jurisdiction.” Semenetz, 801 N.Y.S.2d at 81. In quoting that \n\n 6 sentence from Semenetz, however, BRG changed Semenetz’s sentence to say, “The \n\n 7 ‘successor liability rule[s]’ deal with the concept of tort liability, not jurisdiction.” \n\n 8 BRG, 82 N.Y.S.3d at 799 (emphasis added). The alteration of the Semenetz sentence, \n\n 9 if considered out of context, could suggest that successor liability never entails \n\n10 successorship to the predecessor’s jurisdictional status. If that had been BRG’s \n\n11 meaning, its rule would have been contrary to the Semenetz holding. BRG, \n\n12 however, made clear that it was adopting Semenetz’s rationale. Id. (“Plaintiffs do \n\n13 not challenge Semenetz’s holding or its rationale, nor do they ask us to chart our \n\n14 own course on this novel and unsettled jurisdictional issue.”). \n\n15 Nor is Judge Chin’s speculation supported by the Seventh Circuit case he \n\n16 cites. See Purdue Research Found. v. Sanofi‐Synthelabo, S.A., 338 F.3d 773 (7th Cir. \n\n17 2003). In Purdue Research, the plaintiff sued a French corporation in Indiana for \n\n18 breach of contract. The plaintiff’s contract, however, was not originally with the \n\n\n\n ‐ 33 ‐ \n \n\n 1 French defendant. The contract had been assigned by the plaintiff’s contractual \n\n 2 counterpart to the French defendant in an asset purchase. The plaintiff sought to \n\n 3 justify subjecting the French defendant to Indiana jurisdiction on a successor‐in‐\n\n 4 interest theory by reason of its purchase of the contract in question from an entity \n\n 5 that was subject to suit in Indiana. The Seventh Circuit upheld the District \n\n 6 Court’s dismissal for want of personal jurisdiction in Indiana. The court ruled \n\n 7 that the French defendant’s purchase of limited assets including the breached \n\n 8 contract from an entity that was subject to suit in Indiana did not render it \n\n 9 subject to Indiana jurisdiction as a successor. The court explicitly noted that the \n\n10 defendant “did not merge with [the seller of the assets] nor did it purchase all (or \n\n11 substantially all) of [the seller’s] assets,” implying that the result would be \n\n12 otherwise had either of these been true. Id. at 785. \n\n13 CONCLUSION \n\n14 For the reasons set forth above, we hereby (i) REVERSE the Indiana \n\n15 district court’s ruling that it lacked personal jurisdiction over Defendant; (ii) \n\n16 AFFIRM the New York district court’s denial of Plaintiff’s motion for retransfer \n\n17 to Indiana (treating the transfer order as one made under § 1404(a) of Title 28, \n\n18 rather than under § 1631); (iii) VACATE the judgment rendered in favor of \n\n\n\n ‐ 34 ‐ \n \n\n1 Defendant on the basis of the untimeliness of the suit as judged under New York \n\n2 choice of law rules; and (iv) REMAND to the district court to adjudicate under \n\n3 the choice‐of‐law rules of Indiana. \n\n\n\n\n ‐ 35 ‐", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368439/", "author_raw": "12 Judge Chin’s concurring"}, {"author": "1 CHIN, Circuit Judge, concurring", "type": "concurrence", "text": "1 CHIN, Circuit Judge, concurring: \n\n 2 I concur in the majorityʹs decision to affirm the denial of the motion to \n\n 3 retransfer, and agree that the case should be remanded for further proceedings. \n\n 4 I am not persuaded, on the present record, that Indiana had specific \n\n 5 personal jurisdiction over Bank of America. Bank of Americaʹs contacts with \n\n 6 respect to the relevant contracts were in New York only. The MLPA and PSA \n\n 7 were negotiated, drafted, and executed in New York, and include New York \n\n 8 choice‐of‐law clauses. Bank of America is subject to personal jurisdiction in \n\n 9 Indiana, if at all, only because it is a successor‐by‐merger to LaSalle. While a \n\n10 successor‐by‐merger is ʺsubject to all the liabilities of the acquired compan[y],ʺ \n\n11 James D. Cox & Thomas Lee Hazen, 4 Treatise of the Law of Corporations § 22:8 \n\n12 (3d ed.), it is not always the case that an acquired companyʹs jurisdictional \n\n13 contacts can be imputed to the successor‐by‐merger. Even though Bank of \n\n14 America is liable on the agreements, that does not mean that Bank of America is \n\n15 necessarily subject to suit in Indiana because of LaSalleʹs jurisdictional contacts. \n\n16 Compare BRG Corp. v. Chevron U.S.A., Inc., 82 N.Y.S.3d 798, 799 (App. Div. 4th \n\n17 Depʹt 2018) (ʺThe successor liability rule[s] deal with the concept of tort liability, \n\n18 not jurisdiction. When and if [successor liability] is found applicable, the \n\n 1 corporate successor would be subject to liability for the torts of its predecessor in \n\n 2 any forum having in personam jurisdiction over the successor, but the [successor \n\n 3 liability rules] do not and cannot confer such jurisdiction over the successor in \n\n 4 the first instance.ʺ (alteration in original) (internal quotation marks omitted)), \n\n 5 with Purdue Research Found. v. Sanofi‐Synthelabo, S.A., 338 F.3d 773, 783 (7th Cir. \n\n 6 2003) (recognizing a predecessorʹs jurisdictional contacts may be imputed to a \n\n 7 successor corporation where the successor corporation is a mere continuation of \n\n 8 the predecessor or where the forumʹs successor liability laws would hold the \n\n 9 successor liable for the predecessorʹs actions). \n\n10 I do not believe, on the record before us, that it is clear that Indiana has \n\n11 specific personal jurisdiction over Bank of America. I would, therefore, leave the \n\n12 question of personal jurisdiction to the district court in the first instance to decide \n\n13 after it determines the choice of law question. See 4A Charles Alan Wright & \n\n14 Arthur R. Miller, Federal Practice and Procedure § 1069.4 (4th ed. April 2018 \n\n15 Update) (ʺ[S]pecial problems are presented when [personal] jurisdiction over a \n\n16 defendant is justified by a related entityʹs contacts with the forum . . . . The very \n\n17 nature of these often difficult issues makes their resolution extremely fact \n\n18 dependent.ʺ). \n\n\n\n 2 \n \n\n1 Accordingly, I would remand for the district court to resolve the question \n\n2 of specific personal jurisdiction, in addition to the choice‐of‐law and statute of \n\n3 limitations issues. \n\n4 \n\n\n\n\n 3", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368439/", "author_raw": "1 CHIN, Circuit Judge, concurring"}]} | LEVAL | LIVINGSTON | CHIN | 1 | {"LEVAL": ", Circuit", "LIVINGSTON": ", Circuit", "CHIN": ", Circuit"} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591186/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
},
{
"content": "[CASE_METADATA]\nCase name: U.S. Bank Nat'l Ass'n v. Bank of America N.A.\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n16‐3560‐cv \n U.S. Bank Natʹl Assʹn v. Bank of America N.A. \n \t \t \n 1 UNITED STATES COURT OF APPEALS \n 2 FOR THE SECOND CIRCUIT \n 3 \n\n 4 August Term 2017 \n\n 5 (Argued: November 8, 2017 Decided: February 15, 2019) \n\n 6 Docket No. 16‐3560‐cv \n 7 \n\n 8 U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR (WELLS FARGO \n 9 BANK, NA), AS TRUSTEE (REGISTERED HOLDERS OF CITIGROUP \n10 COMMERCIAL MORTGAGE TRUST 2007‐C6, COMMERCIAL MORTGAGE \n11 PASS‐THROUGH CERTIFICATES, SERIES 2007‐C6), ACTING BY AND \n12 THROUGH SPECIAL SERVICER CWCAPITAL ASSET MANAGEMENT LLC, \n13 \n14 Plaintiff‐Appellant, \n15 \n16 v. \n17 \n18 BANK OF AMERICA N.A., \n19 \n20 Defendant‐Appellee. \n21 \n22 \n\n23 ON APPEAL FROM THE UNITED STATES DISTRICT COURT \n24 FOR THE SOUTHERN DISTRICT OF NEW YORK \n\n25 \n26 \n27 Before: \n28 LEVAL, LIVINGSTON, and CHIN, Circuit Judges. \n29 \n\n30 Appeal by Plaintiff U.S. Bank National Association from orders of the \n31 United States District Court for the Southern District of New York (Paul G. \n\n 1 Gardephe, J.) denying Plaintiff’s motion to retransfer the suit to the United States \n 2 District Court for the Southern District of Indiana, where it was instituted, and \n 3 granting judgment on the pleadings in favor of Defendant Bank of America N.A., \n 4 by reason of untimeliness under the laws of New York. The district court in \n 5 Indiana had transferred the case to New York under 28 U.S.C. § 1631 based on its \n 6 conclusion that the defendant was not subject to personal jurisdiction in Indiana. \n 7 Although we disagree with that conclusion (and therefore with the propriety of \n 8 the transfer under § 1631), we affirm the New York district court’s denial of the \n 9 motion to retransfer to Indiana, treat the original transfer as one made under 28 \n10 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment that the suit was \n11 untimely under the laws of New York. The judgment is VACATED and the case \n12 is REMANDED for further proceedings. \n\n13 Judge CHIN concurs in a separate opinion. \n\n14 \n15 \n16 COLLEEN M. MALLON (Gregory A. Cross, on the brief), \n17 Venable LLP, Baltimore, Maryland, for Plaintiff‐\n18 Appellant. \n19 \n20 ELIZABETH P. PAPEZ (Luke A. Connelly, Stephanie A. \n21 Maloney, on the brief), Winston & Strawn LLP, \n22 Washington, D.C. and New York, New York, for \n23 Defendant‐Appellee. \n24 \n\n25 LEVAL, Circuit Judge: \n\n26 In this suit for breach of contract, Plaintiff U.S. Bank National Association \n\n27 appeals from orders of the United States District Court for the Southern District \n\n28 of New York (Paul G. Gardephe, J.) denying its motion to retransfer the suit to \n\n29 the United States District Court for the Southern District of Indiana, where it was \n\n\n\n ‐ 2 ‐ \n \n\n 1 instituted, and granting judgment on the pleadings in favor of Defendant Bank of \n\n 2 America N.A., by reason of the untimeliness of the suit under New York’s statute \n\n 3 of limitations. The district court in Indiana had transferred the case to New York \n\n 4 under 28 U.S.C. § 1631, based on its conclusion that the suit could not be brought \n\n 5 in Indiana because the Defendant (a nationally chartered bank and citizen of \n\n 6 North Carolina) was not subject to personal jurisdiction in Indiana. \n\n 7 We disagree with the Indiana district court’s conclusion that the Defendant \n\n 8 was not subject to the jurisdiction of the Indiana court, and therefore we \n\n 9 necessarily conclude that the Indiana court’s transfer to New York was not \n\n10 authorized by § 1631. We nonetheless affirm the New York district court’s denial \n\n11 of Plaintiff’s motion to retransfer to Indiana, treat the original transfer as one \n\n12 made under 28 U.S.C. § 1404(a) (rather than § 1631), and vacate the judgment of \n\n13 dismissal rendered on the ground that the suit was untimely under the laws of \n\n14 New York. \n\n15 \n\n16 \n\n17 \n\n18 \n\n\n\n ‐ 3 ‐ \n \n\n 1 BACKGROUND \n\n 2 I. The Mortgage Loan Purchase Agreement \n\n 3 In 2007, Defendant Bank of America’s predecessor, LaSalle Bank N.A.,1 \n\n 4 entered into a Mortgage Loan Purchase Agreement (the “MLPA”), for the sale of \n\n 5 a portfolio (of approximately 100 commercial mortgage loans) to an entity2 acting \n\n 6 for the benefit of an investment trust (the “Trust”), for which Plaintiff U.S. Bank \n\n 7 (a nationally chartered bank and citizen of Ohio) serves as Trustee. The MLPA \n\n 8 was supplemented by a Pooling and Servicing Agreement (the “PSA”), which \n\n 9 provided that the purchaser would deposit the loans into the Trust and assign all \n\n10 of its rights under the MLPA to the Trust. \n\n11 In the MLPA, the seller made representations and warranties regarding the \n\n12 loans. These included Representation No. 8 (set forth in the margin),3 which \n\n\n \n 1 LaSalle Bank later merged with Defendant Bank of America. \n\n 2 Citigroup Commercial Mortgage Securities, Inc. was the purchaser under the MLPA \n\n for the benefit of the Trust. \n 3 “Each related Mortgage is a valid and enforceable first lien on the related Mortgaged \n\n Property subject only to . . . [exceptions not relevant here] and the following title \n exceptions . . . (b) covenants, conditions and restrictions, rights of way, easements and \n other matters of public record, none of which, individually or in the aggregate, materially \n and adversely interferes with the current use of the Mortgaged Property or the security intended \n to be provided by such Mortgage or with the Mortgagorʹs ability to pay its obligations under the \n Mortgage Loan when they become due or materially and adversely affects the value of the \n Mortgaged Property . . . .” App. 93. (emphasis added) \n \n ‐ 4 ‐ \n \n\n 1 effectively represented the absence of any restrictions that would interfere with \n\n 2 the mortgagorʹs ability to pay its obligations under the mortgage loan or would \n\n 3 materially and adversely affect the value of the mortgaged property. \n\n 4 The MLPA prescribes specific remedies available to the mortgagee in the \n\n 5 event of a “Document Defect or a Breach” of a representation. App. 79. Pursuant \n\n 6 to Section 3(c), the seller of the loan portfolio (Defendant’s predecessor) \n\n 7 undertook a commitment that, upon receipt of notice of a Document Defect or \n\n 8 Breach, it would: \n\n 9 cure such Document Defect or Breach . . . in all material \n10 respects, or, if such Document Defect or Breach . . . \n11 cannot be cured . . . , (i) repurchase the affected \n12 Mortgage Loan at the applicable Purchase Price . . . , or \n13 (ii) substitute a Qualified Substitute Mortgage Loan for \n14 such affected Mortgage Loan . . . . \n\n15 App. 79. \n\n16 The PSA, in Section 2.03, similarly provides that, after receiving timely \n\n17 notice of a Document Defect or Breach, the seller shall: \n\n18 (i) cure such Document Defect or Breach, as the case \n19 may be, in accordance with Section 3 of the applicable \n20 [MLPA], (ii) repurchase the affected Trust Mortgage \n21 Loan in accordance with Section 3 of the related \n22 [MLPA], or (iii) within two (2) years of the Closing \n\n\n\n\n ‐ 5 ‐ \n \n\n 1 \n 2 Date, substitute a Qualified Substitute Mortgage Loan \n 3 for such affected Trust Mortgage Loan . . . . \n\n 4 App. 247. \n\n 5 II. The Indiana Loan \n\n 6 One of the items in the portfolio sold pursuant to the MLPA, was a $9 \n\n 7 million loan (the “Loan”), which is the subject of this litigation, made in 2007 to \n\n 8 Womenʹs Physicians Group, LLC. Repayment of the Loan was secured in part by \n\n 9 a mortgage on a two‐story commercial building (the “Property”) (then owned by \n\n10 the borrower/mortgagor Womenʹs Physicians Group), which was located on a \n\n11 hospital campus in Indiana. Womenʹs Physicians Group had purchased the \n\n12 Property from Galen Hospital Corporation (the “Hospital”) pursuant to a special \n\n13 warranty deed. The deed includes two title exceptions that run with the \n\n14 property: (1) a use restriction, which, absent the consent of the Hospital, \n\n15 prohibits use of the Property otherwise than as an ambulatory surgery center and \n\n16 medical offices, and (2) a right of first refusal in favor of the Hospital for any sale, \n\n17 transfer, or assignment. \n\n18 In 2012, Women’s Physicians Group lost the major tenant for the Property, \n\n19 was unable to secure a new tenant that would use the Property in a manner that \n\n20 conformed to the use restriction, and consequently defaulted on the Loan. On \n ‐ 6 ‐ \n \n\n 1 December 13, 2012, the Trust, which had acquired the Loan pursuant to the \n\n 2 MLPA, commenced a foreclosure action in Indiana state court against Womenʹs \n\n 3 Physicians Group. The foreclosure court appointed a receiver, who similarly \n\n 4 failed to secure either a tenant or a waiver or modification of the deed \n\n 5 restrictions. \n\n 6 On October 18, 2013, Plaintiff‐Trustee notified Bank of America that it had \n\n 7 violated MLPA Representation No. 8 and demanded that Bank of America cure \n\n 8 the violation or repurchase the Loan, as provided in the MLPA. Bank of America \n\n 9 did not do so. \n\n10 III. The Proceedings Below \n\n11 On September 12, 2014, Plaintiff, as Trustee, brought this action against \n\n12 Bank of America in the Indiana district court, alleging breach of Representation \n\n13 No. 8. Bank of America moved to dismiss the suit, or alternatively to transfer it to \n\n14 the Southern District of New York, asserting that it was not subject to personal \n\n15 jurisdiction in Indiana. The Indiana district court ruled that Bank of America was \n\n16 not subject to personal jurisdiction in Indiana. The Indiana district court \n\n17 transferred the case to the New York district court pursuant to 28 U.S.C. § 1631, \n\n18 which authorizes a federal district court, on the basis of a “want of jurisdiction, . . \n\n\n\n ‐ 7 ‐ \n \n\n 1 . if it is in the interest of justice, [to] transfer such action . . . to any other such \n\n 2 court . . . in which the action . . . could have been brought.”4 It is undisputed that \n\n 3 venue and jurisdiction are proper in the Southern District of New York. \n\n 4 Following the transfer, Plaintiff moved in the New York district court to \n\n 5 retransfer the case to the Indiana district court, arguing that, contrary to the \n\n 6 Indiana district court’s ruling, Bank of America was subject to the court’s \n\n 7 personal jurisdiction in Indiana on several different bases. The New York district \n\n 8 court denied the motion. In the meantime, Bank of America had moved in the \n\n 9 New York district court for judgment on the pleadings. The district court \n\n10 granted that motion, concluding that Plaintiff’s claim for breach of contract was \n\n11 time‐barred under New Yorkʹs six‐year statute of limitations. The court entered \n\n12 judgment in favor of Defendant Bank of America on September 22, 2016. This \n\n13 appeal followed. \n\n\n\n \n 4 28 U.S.C. § 1631 provides for transfers to cure want of jurisdiction, as follows: \n\n \n Whenever a civil action is filed in a court . . . and that court finds that \n there is a want of jurisdiction, the court shall, if it is in the interest of \n justice, transfer such action or appeal to any other such court . . . in which \n the action or appeal could have been brought at the time it was filed or \n noticed, and the action or appeal shall proceed as if it had been filed in or \n noticed for the court to which it is transferred on the date upon which it \n was actually filed in or noticed for the court from which it is transferred. \n ‐ 8 ‐ \n \n\n 1 DISCUSSION \n\n 2 Plaintiff raises a number of arguments on appeal, including that the \n\n 3 Indiana district court erred in finding that Bank of America was not subject to its \n\n 4 jurisdiction, that the New York district court erred in refusing to retransfer the \n\n 5 case to Indiana, and that the New York district court accordingly should not \n\n 6 have entered judgment in favor of Defendant. We address these issues in turn. \n\n\n 7 I. Was Defendant Subject to the Personal Jurisdiction of the Indiana District \n\n 8 Court? \n\n 9 Plaintiff contends that, contrary to the Indiana district court’s ruling, Bank \n\n10 of America was subject to personal jurisdiction in Indiana, both on the basis of \n\n11 general jurisdiction (because of either its waiver or its extensive activities in \n\n12 Indiana) and specific jurisdiction (because of the contractual representations it \n\n13 undertook concerning real property in Indiana and the commitments it \n\n14 undertook in the terms of the MLPA to perform acts in Indiana). We are \n\n15 persuaded that Bank of America made itself subject to Indiana personal \n\n16 jurisdiction in this case. Accordingly, we have no need to consider Plaintiff’s less \n\n17 persuasive arguments that Bank of America was also subject to general Indiana \n\n18 jurisdiction. \n\n\n ‐ 9 ‐ \n \n\n 1 To determine personal jurisdiction, a federal district court applies the long‐\n\n 2 arm statute of the state in which it sits. See Chloé v. Queen Bee of Beverly Hills, LLC, \n\n 3 616 F.3d 158, 163 (2d Cir. 2010). Indianaʹs long‐arm statute authorizes courts to \n\n 4 exercise jurisdiction on any basis permitted by the U.S. Constitution. Advanced \n\n 5 Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. \n\n 6 2014) (“Under Indianaʹs long‐arm statute, Indiana state courts may exercise \n\n 7 personal jurisdiction on a number of prescribed bases, as well as ‘on any basis \n\n 8 not inconsistent with the Constitution of this state or the United States.’”) \n\n 9 (quoting Ind. R. Trial P. 4.4(A)). To comport with due process, a forum state \n\n10 may exercise jurisdiction over an out‐of‐state corporate defendant only if the \n\n11 defendant has ʺcertain minimum contacts with [the State] such that the \n\n12 maintenance of the suit does not offend ʹtraditional notions of fair play and \n\n13 substantial justice.ʹʺ Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, \n\n14 923 (2011) (alteration in original) (quoting Intʹl Shoe Co. v. Washington, 326 U.S. \n\n15 310, 316 (1945)). Specific jurisdiction over an out‐of‐state defendant “is available \n\n16 when the cause of action sued upon arises out of the defendantʹs activities in a \n\n17 state.ʺ Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016). \n\n\n\n\n ‐ 10 ‐ \n \n\n 1 When deciding whether personal jurisdiction over a defendant exists in a \n\n 2 district court that falls outside this Circuit, we need not predict how our sister \n\n 3 circuit would decide the question, ʺsince we are at liberty to decide for ourselves \n\n 4 what the Due Process Clause requires to sustain personal jurisdiction.ʺ Chew v. \n\n 5 Dietrich, 143 F.3d 24, 30 (2d Cir. 1998); see also SongByrd, Inc. v. Estate of Grossman, \n\n 6 206 F.3d 172, 180‐81 (2d Cir. 2000) (applying this circuitʹs case law to decide \n\n 7 whether Louisiana could exercise personal jurisdiction over a defendant). \n\n 8 Although we consider the decisions of our sister circuits, ʺwe are permitted ‐‐ \n\n 9 indeed, required ‐‐ to reach our own conclusionsʺ on issues of federal law. \n\n10 Desiano v. Warner‐Lambert & Co., 467 F.3d 85, 90 (2d Cir. 2006); see also Rates Tech. \n\n11 Inc. v. Speakeasy, Inc., 685 F.3d 163, 173‐74 (2d Cir. 2012) (ʺ[O]ur court is not \n\n12 bound by the holdings ‐‐ much less the dicta ‐‐ of other federal courts of \n\n13 appeal.ʺ). But we ʺdefer conclusivelyʺ to another circuitʹs decision when it \n\n14 addresses a question of state law from a state within that circuit. Desiano, 467 \n\n15 F.3d at 90. \n\n16 1. Applicable Law of Specific Personal Jurisdiction \n\n17 The Supreme Court has set out three conditions for the exercise of specific \n\n18 jurisdiction over a nonresident defendant. See Bristol‐Myers Squibb Co. v. Superior \n\n\n\n ‐ 11 ‐ \n \n\n 1 Court of California, San Francisco Cty., 137 S. Ct. 1773, 1785‐86 (2017). “First, the \n\n 2 defendant must have purposefully availed itself of the privilege of conducting \n\n 3 activities within the forum State or have purposefully directed its conduct into \n\n 4 the forum State.” Id. at 1785 (quoting J. McIntyre Machinery, Ltd. v. Nicastro, 564 \n\n 5 U.S. 873, 877 (2011) (plurality opinion)). “Second, the plaintiff’s claim must arise \n\n 6 out of or relate to the defendant’s forum conduct.” Id. at 1786 (quoting \n\n 7 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). “Finally, \n\n 8 the exercise of jurisdiction must be reasonable under the circumstances.” Id. \n\n 9 (citing Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U.S. 102, \n\n10 113‐114 (1987)). \n\n11 At the first step, the minimum contacts inquiry is “satisfied if the \n\n12 defendant has ‘purposefully directed’ his activities at residents of the forum.” \n\n13 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (quoting Keeton v. Hustler \n\n14 Magazine, Inc., 465 U.S. 770, 774 (1984)); see also Charles Schwab Corp. v. Bank of Am. \n\n15 Corp., 883 F.3d 68, 82 (2d Cir. 2018) (ʺ[M]inimum contacts . . . exist where the \n\n16 defendant purposefully availed itself of the privilege of doing business in the \n\n17 forum and could foresee being haled into court there.ʺ). \n\n\n\n\n ‐ 12 ‐ \n \n\n 1 To meet the minimum contacts requirement, ʺthe defendantʹs suit‐related \n\n 2 conduct must create a substantial connection with the forum Stateʺ ‐‐ that is, the \n\n 3 ʺdefendant [it]selfʺ must create those contacts, and those contacts must be with \n\n 4 the ʺforum State itself,ʺ not simply with persons who reside there. Walden v. \n\n 5 Fiore, 134 S. Ct. 1115, 1121‐22 (2014) (citation omitted). Thus, although a \n\n 6 defendantʹs contacts with the forum state may be ʺintertwined with [its] \n\n 7 transactions or interactions with the plaintiff or other parties . . .[,] a defendantʹs \n\n 8 relationship with a . . . third party, standing alone, is an insufficient basis for \n\n 9 jurisdiction.ʺ Id. at 1123; see also Bristol‐Myers Squibb, 137 S. Ct. at 1783 (2017) \n\n10 (same). It is “insufficient to rely on a defendantʹs random, fortuitous, or \n\n11 attenuated contacts or on the unilateral activity of a plaintiff with the forum to \n\n12 establish specific jurisdiction.” Waldman v. Palestine Liberation Org., 835 F.3d 317, \n\n13 337 (2d Cir. 2016) (quoting Walden, 134 S. Ct. at 1123) (internal quotation marks \n\n14 omitted). \n\n15 Nor is it sufficient for a plaintiff to show simply that a defendantʹs actions \n\n16 caused an ʺeffectʺ in the forum state where the defendant has not ʺexpressly \n\n17 aimed its conduct at the forum.ʺ Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, \n\n18 732 F.3d 161, 173 (2d Cir. 2013). And “mere injury to a forum resident” is \n\n\n\n ‐ 13 ‐ \n \n\n 1 insufficient. Walden, 134 S. Ct. at 1125; see also SongByrd, 206 F.3d at 181 (rejecting \n\n 2 specific personal jurisdiction over a defendant even if defendant’s action could \n\n 3 be viewed as a “but for” cause of relevant events in forum state); accord Noboa v. \n\n 4 Barceló Corporación Empresarial, SA, 812 F.3d 571, 572 (7th Cir. 2016) (“[T]he \n\n 5 pertinent question is whether the defendant has links to the jurisdiction in which \n\n 6 the suit was filed, not whether the plaintiff has such links ‐‐ or whether the loss \n\n 7 flowed through a causal chain from the plaintiffʹs contacts with the jurisdiction of \n\n 8 suit.ʺ). Similarly, “the fact that harm in the forum is foreseeable . . . is insufficient \n\n 9 for the purpose of establishing specific personal jurisdiction over a defendant.” \n\n10 In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 674 (2d Cir. 2013). \n\n11 Where the underlying dispute involves a contract, we use a ʺhighly \n\n12 realisticʺ approach and evaluate factors such as “prior negotiations and \n\n13 contemplated future consequences, along with the terms of the contract and the \n\n14 partiesʹ actual course of dealing.” Burger King, 471 U.S. at 479. \n\n15 At the second step, we must be satisfied that “the litigation results from \n\n16 alleged injuries that ‘arise out of or relate to’ those activities.” Id. at 472 (quoting \n\n17 Helicopteros, 466 U.S. at 414). We have found that a claim arises out of forum \n\n18 contacts when defendant’s allegedly culpable conduct involves at least in part \n\n\n\n ‐ 14 ‐ \n \n\n 1 financial transactions that touch the forum. Licci, 732 F.3d at 169‐70. And finally, \n\n 2 for the third step, once it is established that the defendant has minimum contacts \n\n 3 with the forum and the cause of action relates to or arises from those contacts, “a \n\n 4 court considers those contacts ʹin light of other factors to determine whether the \n\n 5 assertion of personal jurisdiction would comport with fair play and substantial \n\n 6 justice.ʹʺ Charles Schwab, 883 F.3d at 82 (quoting Licci, 732 F.3d at 170).5 \n\n 7 2. Application \n\n 8 We conclude that Plaintiff met the requirements summarized above for \n\n 9 establishing specific Indiana jurisdiction over Defendant in this case. The central \n\n10 tenets of Plaintiff’s theory of liability are that (i) Defendant breached \n\n11 Representation No. 8 of the MLPA that there were no restrictions on the use of \n\n12 the Indiana Property that would interfere with the mortgagor’s ability to make \n\n13 its payments or adversely affect the value of the Property and (ii) Defendant \n\n14 failed to comply with its contractual commitment to cure the breach. The \n\n\n \n 5 Under the reasonableness inquiry, we evaluate the following factors: (1) the \n burden on the defendant, (2) the interests of the forum state, (3) the plaintiffʹs interest in \n obtaining relief, (4) the ʺinterstate judicial systemʹs interest in obtaining the most \n efficient resolution of controversies,ʺ and (5) ʺthe shared interests of the several States in \n furthering fundamental substantive social policies.ʺ Asahi, 480 U.S. at 113 (citations \n omitted). Although we consider a variety of factors, ʺthe ʹprimary concernʹ is ʹthe \n burden on the defendant.ʹʺ Bristol‐Myers Squibb, 137 S. Ct. at 1780 (quoting World‐Wide \n Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). \n ‐ 15 ‐ \n \n\n 1 restrictions imposed by the Hospital included the clause forbidding use of the \n\n 2 Property except for in a specified manner (which allegedly prevented the \n\n 3 mortgagor from obtaining a new tenant and thus caused it to default on payment \n\n 4 of the Loan), as well as the right of first refusal in favor of the Hospital (which \n\n 5 allegedly interfered with the mortgagor’s ability to pay the Loan and adversely \n\n 6 affected the value of the Property). Plaintiff alleges that Bank of America then \n\n 7 breached its commitments under Section 3(c) of the MLPA to either “cure such . . \n\n 8 . Breach . . . or, if such . . . Breach . . . cannot be cured, [to] (i) repurchase the \n\n 9 affected Mortgage Loan at the applicable Purchase Price . . . or (ii) substitute a \n\n10 Qualified Substitute Mortgage Loan for such affected Mortgage Loan . ” App. At \n\n11 79. Bank of America’s obligation to “cure” the breach, according to Plaintiff’s \n\n12 theory, required it, among other possibilities, to perform some act in Indiana \n\n13 such as obtaining the Indiana Hospital’s consent to relinquish the deed \n\n14 restrictions that prevented the mortgagor from meeting its Loan obligations. \n\n15 Defendant’s alleged breach of its contractual representations involved the \n\n16 existence of restrictions on the use and value of Indiana Property. In addition, the \n\n17 obligations expressly undertaken by Defendant under the MLPA were \n\n18 purposefully directed toward residents of Indiana, and the suit arose from and \n\n\n\n ‐ 16 ‐ \n \n\n 1 related directly to those Indiana contacts. In view of Defendant’s undertaking of \n\n 2 those commitments in the terms of the contract here in question, we see no \n\n 3 reason why obliging Defendant to litigate this claim in Indiana would offend \n\n 4 traditional notions of fair play or substantial justice, or be unreasonable. \n\n 5 II. Was the New York District Court Correct to Deny Plaintiff’s Motion to \n\n 6 Retransfer? \n\n 7 Plaintiff contends that if, as we have concluded, Bank of America was \n\n 8 subject to personal jurisdiction in the Indiana court, the Indiana court could not \n\n 9 lawfully transfer the venue of the action to New York under § 1631, because that \n\n10 statute authorizes transfer only for “want of jurisdiction.” Plaintiff contends \n\n11 accordingly that the New York district court should have granted its motion to \n\n12 send the case back to Indiana and that we should direct that this be done. We \n\n13 disagree. \n\n14 Such a ruling would fail to heed the Supreme Court’s sagacious warning in \n\n15 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988). Confronting a \n\n16 similar circumstance, the Court cautioned, ʺ[T]ransferee courts that feel entirely \n\n17 free to revisit transfer decisions of a coordinate court threaten to send litigants \n\n18 into a vicious circle of litigation,ʺ culminating in a ʺperpetual game of \n\n\n\n ‐ 17 ‐ \n \n\n 1 jurisdictional ping‐pong.ʺ Id. at 816, 818. Although Christianson differed slightly \n\n 2 in that the potentially dueling transfer orders were entered by coordinate courts of \n\n 3 appeals, as opposed to a court of appeals reviewing of a transfer order of a district \n\n 4 court in another circuit, that distinction does not lessen the pertinence or \n\n 5 importance of the Supreme Court’s observation. \n\n 6 If we were to direct that the case be retransferred to Indiana, eventual \n\n 7 review by the Seventh Circuit might well result in a ruling that that circuit, and \n\n 8 not ours, is authoritative on the reach of jurisdiction of the Indiana courts, a \n\n 9 reaffirmance of the Indiana district court’s original ruling that Bank of America is \n\n10 not subject to personal jurisdiction in Indiana, and a reinstitution of the original \n\n11 transfer to the district court in New York. Whether and where it would end \n\n12 could not be predicted. Such a scenario would be intolerable. Regardless of \n\n13 which court is correct in its appraisal of the jurisdiction question, such a duel \n\n14 between courts of transfers and retransfers would subject the parties to \n\n15 unacceptably mounting expenses and delays. If such occurs, the federal court \n\n16 system abjectly fails to perform its mission of deciding cases with reasonable \n\n17 speed and efficiency at reasonable cost to the parties. \n\n\n\n\n ‐ 18 ‐ \n \n\n 1 The New York district court was sensitive to the Supreme Court’s warning \n\n 2 in rejecting Plaintiff’s motion for retransfer to Indiana. Citing Christianson, it \n\n 3 ruled that it would treat the Indiana court’s transfer of venue as the law of the \n\n 4 case. It reviewed the Indiana court’s decision with respect to the absence of \n\n 5 personal jurisdiction over Defendant in Indiana to the extent of ruling that it \n\n 6 found no clear error in that ruling, and thus denied the motion. While we are not \n\n 7 in complete agreement with the New York district court’s ruling (as explained \n\n 8 below) we entirely approve of its rejection of the motion to retransfer to Indiana. \n\n 9 Arguably, the standard for this court’s review of a transfer order of a \n\n10 district court in a different circuit differs from the standard to be exercised by the \n\n11 transferee district court. As we noted in SongByrd, 206 F.3d at 178 n.7, it would \n\n12 be rare for the doctrine of the law of the case to commit a higher court to adhere \n\n13 to a ruling of a lower court. Nonetheless, as noted above, for this court to require \n\n14 retransfer to the Indiana district court based on our conclusion that the Indiana \n\n15 court erred would give rise to the same unacceptable use of the parties as a ping‐\n\n16 pong ball as if the retransfer order were made by the transferee district court. \n\n17 Plaintiff has not shown that litigating in New York would subject it to any great \n\n18 inconvenience or unfairness. Allowing the case to remain in the Southern District \n\n\n\n ‐ 19 ‐ \n \n\n 1 of New York, notwithstanding that the Indiana court’s transfer order was based \n\n 2 on a mistake of law, is a far lesser evil than subjecting the parties to the further \n\n 3 expense and delay of a retransfer, with the attendant risk of still further rounds \n\n 4 of transfers. \n\n 5 Because the transfer of venue was not available under § 1631, which \n\n 6 authorizes transfers only for want of jurisdiction, we think it is our best course to \n\n 7 treat the erroneous § 1631 transfer as a transfer under 28 U.S.C. § 1404(a) “[f]or \n\n 8 the convenience of [the] parties and witnesses, in the interest of justice.”6 The \n\n 9 interest of justice and the convenience of the parties are served by a transfer \n\n10 under § 1404(a) in that it spares the parties from the intolerable expenses, delays, \n\n11 and attendant burdens that would result from having the case batted back and \n\n\n\n\n \n 6 “For the convenience of parties and witnesses, in the interest of justice, a district court \n\n may transfer any civil action to any other district or division where it might have been \n brought or to any district or division to which all parties have consented.” 28 U.S.C. \n § 1404(a). While the Indiana district court expressly relied on § 1631 as authority for the \n transfer, see U.S. Bank Nat’l Ass’n v. Bank of America N.A., No. 1:14‐cv‐01492, 2015 WL \n 5971126, at *10 (S.D. Ind. Oct. 14, 2015) (“[T]he Court concludes that it does not have \n personal jurisdiction over Bank of America. As a result, the Court TRANSFERS this \n case to the Southern District of New York, pursuant to 28 U.S.C. § 1631.”), the court also \n observed, although making no findings relating to the convenience of the parties and \n witnesses or the interest of justice, that transfer would also be appropriate under \n § 1404(a). Id. \n ‐ 20 ‐ \n \n\n 1 forth from district to district, and that it positions a court to fulfill the mission of \n\n 2 the judicial system by deciding the case. \n\n 3 The New York district court denied the Plaintiff’s motion to retransfer on \n\n 4 the ground that the Indiana court’s transfer under § 1631 for want of jurisdiction \n\n 5 was not clearly erroneous. We see the issue somewhat differently. To say that the \n\n 6 Indiana court’s transfer order was not clearly erroneous does not say it was not \n\n 7 erroneous. Because Bank of America was subject to personal jurisdiction in the \n\n 8 Indiana court, that court’s transfer of venue under § 1631 was not in accordance \n\n 9 with law. Nonetheless, transfer of venue to the Southern District of New York \n\n10 would have been appropriate under § 1404(a). Giving regard to Plaintiff’s failure \n\n11 to show that it would suffer great harm in being compelled to litigate its case in \n\n12 New York instead of in the forum it chose, the unjust burdens that the courts \n\n13 would inflict on the parties by shuttling them back and forth between Indiana \n\n14 and New York, and the Supreme Court’s warnings in Christianson, we find it \n\n15 preferable to affirm the New York district court’s denial of retransfer on a \n\n16 different basis than that court relied on. Accordingly, we affirm the New York \n\n17 district court’s denial of Plaintiff’s motion for retransfer to Indiana, treating the \n\n\n\n\n ‐ 21 ‐ \n \n\n 1 Indiana transfer order as if issued under § 1404(a) and finding such a transfer to \n\n 2 be lawful. \n\n 3 III. Did the New York District Court Err in Granting Defendant’s Motion for \n\n 4 Judgment on the Pleadings under Rule 12(c)? \n\n 5 In denying Plaintiff’s motion to retransfer to Indiana, the New York \n\n 6 district court treated the Indiana court’s transfer order as lawful and efficacious \n\n 7 not only as a transfer of venue to New York, but also as a determination that \n\n 8 Bank of America was not subject to personal jurisdiction in the Indiana court and \n\n 9 that the case would accordingly be decided under the laws of New York, the \n\n10 transferee state. The court explained, “If a district court receives a case pursuant \n\n11 to a transfer under . . . 28 U.S.C. § 1631, for want of jurisdiction, it logically \n\n12 applies the law of the state in which it sits, since the original venue, with its \n\n13 governing laws, was never a proper option.” U.S. Bank Nat’l Ass’n v. Bank of \n\n14 America N.A., No. 15 Civ. 8153, 2016 WL 5118298, at *12 (S.D.N.Y. Sept. 20, 2016) \n\n15 (quoting Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010)). While we agree with \n\n16 that proposition, we find it has no application to this case because, in our view, \n\n17 Bank of America was subject to personal jurisdiction in the Indiana district court, \n\n18 and the original venue, with its governing laws, was a proper option. While we \n\n\n\n ‐ 22 ‐ \n \n\n 1 affirm the New York district court’s denial of Plaintiff’s motion to retransfer to \n\n 2 Indiana, we do not affirm the propriety of the original transfer for want of \n\n 3 jurisdiction under § 1631. We instead affirm the transfer as if made under § 1404(a) \n\n 4 by a court that had jurisdiction of the case. \n\n 5 A transfer under § 1404(a) by a court that has jurisdiction of the case has \n\n 6 different consequences from a transfer under § 1631 by a court that lacks \n\n 7 jurisdiction of the case. Transfers under § 1404(a) by a court that has jurisdiction \n\n 8 are adjudicated in the transferee state under the law of the transferor state. This \n\n 9 is to avoid the unfairness of having a discretionary transfer done for convenience \n\n10 change the law under which the case will be decided. See Van Dusen v. Barrack, \n\n11 376 U.S. 612, 633‐34 (1964); 17 Moore’s Federal Practice § 111.20[1][b] (3d ed. \n\n12 2018) (“[W]hen a case is transferred under Section 1404(a), Van Dusen requires \n\n13 the same choice of law analysis that would have been applied in the transferor \n\n14 court to be conducted in the transferee court, which may require the transferee \n\n15 court to apply its own law, the law of the transferor court, or some other state’s \n\n16 law.”). \n\n17 Under the New York district court’s analysis, Indiana’s 10‐year statute of \n\n18 limitations and its choice of law rules had no pertinence because the case was \n\n\n\n ‐ 23 ‐ \n \n\n 1 never properly lodged in the Indiana court. The transfer under § 1631 to New \n\n 2 York mandated the application of New York’s six‐year statute of limitations, \n\n 3 under which the suit was untimely. Our disposition requires that the New York \n\n 4 district court treat the case as one properly filed in Indiana, applying Indiana’s \n\n 5 choice of law rules to determine whether the suit was timely filed. We therefore \n\n 6 vacate the New York district court’s grant of Bank of America’s motion for \n\n 7 judgment on the pleadings. We express no view on the question whether the suit \n\n 8 was timely filed, when that question is judged under Indiana’s choice‐of‐law \n\n 9 rules, as appropriate for a suit properly brought in Indiana and subsequently \n\n10 transferred to New York under § 1404(a). \n\n11 IV. Response to Judge Chin’s Concurrence\n[END_CASE]",
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4,591,187 | Harnage v. Lightner | 2019-02-15 | 18-1559-pr | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: CALABRESI, CABRANES, CHIN, Circuit Judges.", "parties": "", "opinions": [{"author": "Court for the District of Connecticut (Alvin W. Thompson, Judge)", "type": "010combined", "text": "18‐1559‐pr \nHarnage v. Lightner \n\n\n\n\n In the\n United States Court of Appeals\n for the Second Circuit\n \n \n AUGUST TERM 2018 \n \n No. 18‐1559‐pr \n \n JAMES A. HARNAGE, \n Plaintiff‐Appellant, \n \n v. \n \n RIKEL LIGHTNER, DR. WU, DR. PILLAI, DR. O’HALLARAN, DR. NAGVI, \nP.A. KEVIN MCCHRYSTAL, P.A. ROB, L.P.N. FRANCIS, LISA CALDONERO, \n NURSE CAROLINE, NURSE NIKKI, RN HEIDI GREENE, NURSE MARISSA, \n NURSE MIYA, NURSE JAMES, DR. DAVID M. GILES, SURGICAL INTERN \n SHARI, JANE DOES, 1‐5, JOHN DOES, 1‐5, \n \n Defendants‐Appellees.* \n \n \n On Appeal from the United States District Court \n for the District of Connecticut \n \n \n SUBMITTED: JANUARY 28, 2019 \n DECIDED: FEBRUARY 15, 2019 \n\n \n The Clerk of Court is directed to amend the caption as set forth above. \n\f \n \nBefore: CALABRESI, CABRANES, CHIN, Circuit Judges.\n\n \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals from a May 1, 2018 judgment of the United States District \nCourt for the District of Connecticut (Alvin W. Thompson, Judge) \ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \nconclude that the amended complaint substantially complies with \nRules 8 and 20. We agree, however, that the complaint fails to state a \nclaim against three defendants. We therefore conclude that dismissal \nwas improper except with respect to those three defendants. \nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \nIN PART. \n \n\n James A. Harnage, Suffield, CT, pro se, for \n Plaintiff‐Appellant. \n\n No appearance, for Defendants‐Appellees. \n\n \n\nPER CURIAM: \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals from a May 1, 2018 judgment of the United States District \n\n\n\n\n 2 \n\fCourt for the District of Connecticut (Alvin W. Thompson, Judge) \ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \nconclude that the amended complaint substantially complies with \nRules 8 and 20. We agree, however, that the complaint fails to state a \nclaim against three defendants. We therefore conclude that dismissal \nwas improper except with respect to those three defendants. \nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \nIN PART. \n\n I. BACKGROUND \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals the District Court’s dismissal of his 42 U.S.C. § 1983 claims \nagainst various medical personnel at the University of Connecticut \nHealth Center and the MacDougall‐Walker Correctional Institution \n(where he is currently incarcerated) for failure to adequately treat a \nhealth condition. After granting Harnage an opportunity to amend, \nthe District Court sua sponte dismissed the amended complaint with \nprejudice under 28 U.S.C. § 1915A1 for failure to comply with Rules 8 \nand 20. \n\n\n\n\n 1 Under 28 U.S.C. § 1915A(a), a district court “shall review . . . a complaint \nin a civil action in which a prisoner seeks redress from a governmental entity or \nofficer or employee of a governmental entity.” Upon such review, the district court \nshall dismiss a complaint or any portion thereof that “is frivolous, malicious, or \nfails to state a claim upon which relief may be granted” or “seeks monetary relief \nfrom a defendant who is immune from such relief.” Id. § 1915A(b). \n\n\n\n\n 3 \n\f II. DISCUSSION \n\n A. Standard of Review \n\n We review de novo a district court’s dismissal of a complaint \nunder 28 U.S.C. § 1915A.2 McEachin v. McGuinnis, 357 F.3d 197, 200 (2d \nCir. 2004). In reviewing such dismissals, we “accept all of the facts \nalleged in the complaint as true and draw all inferences in the \nplaintiff’s favor.” Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). “We \nmust reverse a district court’s dismissal pursuant to § 1915A whenever \na liberal reading of the complaint gives any indication that a valid \nclaim might be stated.” Id. \n \n B. Rule 8 \n\n While we construe pro se pleadings liberally, “the basic \nrequirements of Rule 8 apply to self‐represented and counseled \n\n\n 2 While it is well‐established that dismissal under § 1915A for failure to state \na claim is reviewed de novo, we have yet to enunciate a standard for reviewing a \ndismissal under § 1915A for failure to comply with Rules 8 and 20. See Shomo v. New \nYork, 374 F. App’x 180, 182 (2d Cir. 2010) (summary order). Just as whether a \ncomplaint’s allegations state a claim is a question of law, so too is a complaint’s \nadherence to the Federal Rules of Civil Procedure. We therefore review a district \ncourt’s sua sponte dismissal under § 1915A for failure to comply with Rules 8 and \n20 de novo. Of course, assuming that the district court has correctly concluded that \na complaint fails to comply with Rules 8 and 20, its chosen remedy—that is, its \ndecision to dismiss the complaint or otherwise grant leave to amend—is reviewed \nfor abuse of discretion. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (“As \na general matter . . . the district court has discretion whether or not to grant leave \nto amend, and its decision is not subject to review on appeal except for abuse of \ndiscretion.” (internal quotation marks and brackets omitted)). \n\n\n\n\n 4 \n\fplaintiffs alike.” Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. \n2004). Under Rule 8, a pleading must contain “a short and plain \nstatement of the claim showing that the pleader is entitled to relief.” \nFed. R. Civ. P. 8(a)(2). To satisfy this standard, the complaint must at \na minimum “disclose sufficient information to permit the defendant \nto have a fair understanding of what the plaintiff is complaining \nabout and to know whether there is a legal basis for recovery.” Kittay \nv. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (internal quotation marks \nomitted). \n \n “When a complaint does not comply with the requirement that \nit be short and plain, the court has the power, on its own initiative or \nin response to a motion by the defendant, to strike any portions that \nare redundant or immaterial, or to dismiss the complaint.” \nSalahuddin, 861 F.2d at 42 (internal citation omitted). But “[d]ismissal \n. . . is usually reserved for those cases in which the complaint is so \nconfused, ambiguous, vague, or otherwise unintelligible that its true \nsubstance, if any, is well disguised.” Id. \n \n Here, the District Court dismissed Harnage’s amended \ncomplaint for failing to adequately put the defendants on notice of the \nclaims specifically asserted against each of them. The District Court \ndescribed the allegations set forth in the amended complaint as \n“general complaints of lack of medical treatment or lack of effective \nmedical treatment” that “fail to include any definite or specific dates \non which requests for medical treatment or services or requests to \nfacilitate medical treatment were made, any dates on which a \n\n\n\n\n 5 \n\fdefendant allegedly denied or ignored requests for treatment or \nservices or any dates on which a defendant allegedly responded to a \nrequest for treatment, met with the plaintiff in connection with a \nmedical appointment or offered treatment for the plaintiff’s \nconditions.” See Harnage v. Lightner, No. 3:16cv1576(AWT), Dkt. No. 15 \n(“Ruling and Order”), at 6. \n \n We conclude that, despite these shortcomings, the amended \ncomplaint substantially complies with Rule 8. Liberally construed, the \namended complaint identifies discrete defendants and the actions \ntaken by these defendants that purportedly violated Harnage’s Eighth \nAmendment rights. To wit, Harnage repeatedly sought treatment \nfrom MacDougall‐Walker medical staff members including: Dr. Pillai, \nDr. O’Hallaran, Dr. Nagvi, P.A. Kevin McChrystal, P.A. Rob, Lisa \nCaldonero, Nurse Caroline, Nurse Nikki, Nurse Marissa, Nurse Miya, \nNurse James, Janes 1‐5, and Johns 1‐5. He alleges that he failed to \n“receive effective or proper medical treatment for his constipation” \nfrom these defendants. See Harnage v. Lightner, No. 3:16cv1576(AWT), \nDkt. No. 11 (“Am. Compl.”), ¶¶ 25, 27. These defendants also allegedly \nfailed to provide Harnage with the prescriptions he had been \npromised, or refills thereof. Id. ¶ 28. According to the amended \ncomplaint, it was due to these defendants’ “deliberate indifference to \n[his] serious medical needs”—as evidenced by their failure to ever \nexamine Harnage prior to January 2014—that Harnage’s condition \ndeteriorated. Id. ¶ 29. The amended complaint further alleges that \ndefendant Rikel Lightner repeatedly ignored Harnage’s requests to \ncorrect the facility’s medical deficiencies. Id. ¶ 41. Finally, with respect \n\n\n\n\n 6 \n\fto Lisa Caldonero, L.P.N. Francis, P.A. Rob, RN Heidi Greene, and \nJane 1, the amended complaint alleges that these defendants imposed \nconditions on the plaintiff beyond what was authorized by \nAdministrative Directive 8.9, which in turn made it more difficult for \nHarnage to file Health Services Reviews in connection with this \ncondition. Id. ¶ 44. \n \n In addition, we note that the failure to allege specific dates does \nnot necessarily run afoul of Rule 8, especially where, as here, the \nplaintiff lacks ready access to his medical records. See McEachin, 357 \nF.3d at 201 (“Our reluctance to dismiss these complaints at such an \nearly stage of the proceedings stems in part from the limited . . . \nresources available to pro se plaintiffs, which may hamper their ability \nto articulate potentially valid claims . . . .”). \n \n In sum, while Harnage’s amended complaint may not represent \nthe paradigm of notice pleading, it is not the incomprehensible \n“labyrinthian prolixity of unrelated and vituperative charges” that \nRule 8 was intended to curb. Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. \n1972). Because “sua sponte dismissal of pro se prisoner petitions which \ncontain non‐frivolous claims . . . is disfavored by this Court,” \nMcEachin, 357 F.3d at 200 (internal quotation marks and brackets \nomitted), and because Harnage’s complaint—liberally construed—\nsubstantially complies with Rule 8, we vacate the District Court’s \njudgment insofar as it dismisses the amended complaint on this basis.3 \n\n We are mindful that the District Court has already afforded Harnage an \n 3\n\nopportunity to amend his complaint and has twice provided advice for how to \n\n\n\n\n 7 \n\f C. Rule 20 \n\n Rule 20 permits joinder of multiple defendants if “any right to \nrelief is asserted against them jointly, severally, or in the alternative \nwith respect to or arising out of the same transaction, occurrence, or \nseries of transactions and occurrences” and “any questions of law or \nfact common to all defendants will arise in the action.” Fed. R. Civ. P. \n20(a)(2). \n \n We disagree with the District Court’s conclusion that Harnage’s \ncomplaint asserts more than one distinct claim against multiple \ndefendants. The amended complaint alleges that the defendants’ \nactions (or inaction) individually and cumulatively resulted in the \ndenial of adequate medical care for Harnage’s hemorrhoid condition \nprior to his first surgery. These allegations are thus sufficiently related \nto constitute a “series of transactions and occurrences.” Moreover, the \nquestion of whether Harnage was denied proper medical care in \nviolation of the Eighth Amendment is clearly a common question of \n\ncomply with Rule 8. But we do not agree with the District Court’s conclusion that \nHarnage failed to comply with its prior orders. In its Initial Review Order, for \nexample, the District Court took issue with the complaint’s general references to \nthe “MacDougall defendants” and the “UCONN defendants,” explaining that these \n“general allegations are not sufficient to put any [individual] defendant on notice \nof the claims specifically asserted against him or her.” Harnage v. Lightner, No. \n3:16cv1576(AWT), Dkt. No. 7, at 4. In the amended complaint, by contrast, Harnage \nattempts to remedy this issue by specifically naming the medical staff members \nfrom whom he sought treatment for his condition. See Am. Compl. ¶¶ 25, 33, 44. \nMoreover, none of the District Court’s prior guidance regarding Rule 8 gave the \ndefendant notice that he would face dismissal with prejudice if he failed to specify \nthe dates of the alleged omissions or acts perpetrated by the named defendants. \n\n\n\n\n 8 \n\flaw, if not also fact, with respect to the named defendants. Thus, even \nthough Harnage’s allegations span several years and invoke several \ndefendants, they all arise from the alleged failure of the named \ndefendants to adequately treat Harnage’s hemorrhoid condition \nbefore his first surgery.4 \n\n D. Failure to State a Claim \n\n The District Court correctly concluded that the amended \ncomplaint fails to allege any wrongdoing by three named defendants: \nSurgical Intern Shari, Dr. Wu, and Dr. Giles. Accordingly, we affirm \nthe District Court’s dismissal of the complaint as to those three \ndefendants. \n\n\n\n\n The District Court overstates the degree to which the amended complaint \n 4\n\nexceeds its prescribed scope. See Ruling and Order, at 4. While paragraph 50 of \nHarnage’s amended complaint does reference a second hemorrhoid surgery in \nearly 2016, the remainder of his claims are plainly directed toward the inadequate \ntreatment he received before his first surgery, between August 2012 and October \n2014. See Am. Compl. ¶ 34 (claiming that he endured needless suffering for a period \nof “more than 24 months,” i.e., from August 2012 to October 2014). Read in context, \nthe single reference to the 2016 surgery simply serves to underscore the gravity of \nHarnage’s medical condition; it does not expand the scope of the complaint beyond \nthe approximately 24‐month period preceding his first hemorrhoid surgery. \n\n\n\n\n 9 \n\f III. CONCLUSION \n\n To summarize: We hold that Harnage’s amended complaint \nsubstantially complies with Federal Rules of Civil Procedure 8 and 20. \nWe agree, however, that the amended complaint fails to state a claim \nagainst Surgical Intern Shari, Dr. Wu, and Dr. Giles. \n\n For the foregoing reasons, we AFFIRM the District Court’s \ndismissal of Surgical Intern Shari, Dr. Wu, and Dr. Giles for failure to \nstate a claim, and VACATE AND REMAND the remainder of the May \n1, 2018 judgment for further proceedings consistent with this opinion. \n\n \n\n\n\n\n 10", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368440/", "author_raw": "Court for the District of Connecticut (Alvin W. Thompson, Judge)"}]} | CALABRESI | CABRANES | CHIN | 1 | {"CALABRESI": ", Circuit", "CABRANES": ", Circuit", "CHIN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591187/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: Harnage v. Lightner\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n18‐1559‐pr \nHarnage v. Lightner \n\n\n\n\n In the\n United States Court of Appeals\n for the Second Circuit\n \n \n AUGUST TERM 2018 \n \n No. 18‐1559‐pr \n \n JAMES A. HARNAGE, \n Plaintiff‐Appellant, \n \n v. \n \n RIKEL LIGHTNER, DR. WU, DR. PILLAI, DR. O’HALLARAN, DR. NAGVI, \nP.A. KEVIN MCCHRYSTAL, P.A. ROB, L.P.N. FRANCIS, LISA CALDONERO, \n NURSE CAROLINE, NURSE NIKKI, RN HEIDI GREENE, NURSE MARISSA, \n NURSE MIYA, NURSE JAMES, DR. DAVID M. GILES, SURGICAL INTERN \n SHARI, JANE DOES, 1‐5, JOHN DOES, 1‐5, \n \n Defendants‐Appellees.* \n \n \n On Appeal from the United States District Court \n for the District of Connecticut \n \n \n SUBMITTED: JANUARY 28, 2019 \n DECIDED: FEBRUARY 15, 2019 \n\n \n The Clerk of Court is directed to amend the caption as set forth above. \n\f \n \nBefore: CALABRESI, CABRANES, CHIN, Circuit Judges.\n\n \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals from a May 1, 2018 judgment of the United States District \nCourt for the District of Connecticut (Alvin W. Thompson, Judge) \ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \nconclude that the amended complaint substantially complies with \nRules 8 and 20. We agree, however, that the complaint fails to state a \nclaim against three defendants. We therefore conclude that dismissal \nwas improper except with respect to those three defendants. \nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \nIN PART. \n \n\n James A. Harnage, Suffield, CT, pro se, for \n Plaintiff‐Appellant. \n\n No appearance, for Defendants‐Appellees. \n\n \n\nPER CURIAM: \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals from a May 1, 2018 judgment of the United States District \n\n\n\n\n 2 \n\fCourt for the District of Connecticut (Alvin W. Thompson, Judge) \ndismissing, under 28 U.S.C. § 1915A, his amended complaint for \nfailure to comply with Federal Rules of Civil Procedure 8 and 20. We \nconclude that the amended complaint substantially complies with \nRules 8 and 20. We agree, however, that the complaint fails to state a \nclaim against three defendants. We therefore conclude that dismissal \nwas improper except with respect to those three defendants. \nAccordingly, we AFFIRM IN PART and VACATE AND REMAND \nIN PART. \n\n I. BACKGROUND \n\n Plaintiff‐Appellant James A. Harnage (“Harnage”), pro se, \nappeals the District Court’s dismissal of his 42 U.S.C. § 1983 claims \nagainst various medical personnel at the University of Connecticut \nHealth Center and the MacDougall‐Walker Correctional Institution \n(where he is currently incarcerated) for failure to adequately treat a \nhealth condition. After granting Harnage an opportunity to amend, \nthe District Court sua sponte dismissed the amended complaint with \nprejudice under 28 U.S.C. § 1915A1 for failure to comply with Rules 8 \nand 20. \n\n\n\n\n 1 Under 28 U.S.C. § 1915A(a), a district court “shall review . . . a complaint \nin a civil action in which a prisoner seeks redress from a governmental entity or \nofficer or employee of a governmental entity.” Upon such review, the district court \nshall dismiss a complaint or any portion thereof that “is frivolous, malicious, or \nfails to state a claim upon which relief may be granted” or “seeks monetary relief \nfrom a defendant who is immune from such relief.” Id. § 1915A(b). \n\n\n\n\n 3 \n\f II. DISCUSSION \n\n A. Standard of Review \n\n We review de novo a district court’s dismissal of a complaint \nunder 28 U.S.C. § 1915A.2 McEachin v. McGuinnis, 357 F.3d 197, 200 (2d \nCir. 2004). In reviewing such dismissals, we “accept all of the facts \nalleged in the complaint as true and draw all inferences in the \nplaintiff’s favor.” Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003). “We \nmust reverse a district court’s dismissal pursuant to § 1915A whenever \na liberal reading of the complaint gives any indication that a valid \nclaim might be stated.” Id. \n \n B. Rule 8 \n\n While we construe pro se pleadings liberally, “the basic \nrequirements of Rule 8 apply to self‐represented and counseled \n\n\n 2 While it is well‐established that dismissal under § 1915A for failure to state \na claim is reviewed de novo, we have yet to enunciate a standard for reviewing a \ndismissal under § 1915A for failure to comply with Rules 8 and 20. See Shomo v. New \nYork, 374 F. App’x 180, 182 (2d Cir. 2010) (summary order). Just as whether a \ncomplaint’s allegations state a claim is a question of law, so too is a complaint’s \nadherence to the Federal Rules of Civil Procedure. We therefore review a district \ncourt’s sua sponte dismissal under § 1915A for failure to comply with Rules 8 and \n20 de novo. Of course, assuming that the district court has correctly concluded that \na complaint fails to comply with Rules 8 and 20, its chosen remedy—that is, its \ndecision to dismiss the complaint or otherwise grant leave to amend—is reviewed \nfor abuse of discretion. See Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (“As \na general matter . . . the district court has discretion whether or not to grant leave \nto amend, and its decision is not subject to review on appeal except for abuse of \ndiscretion.” (internal quotation marks and brackets omitted)). \n\n\n\n\n 4 \n\fplaintiffs alike.” Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. \n2004). Under Rule 8, a pleading must contain “a short and plain \nstatement of the claim showing that the pleader is entitled to relief.” \nFed. R. Civ. P. 8(a)(2). To satisfy this standard, the complaint must at \na minimum “disclose sufficient information to permit the defendant \nto have a fair understanding of what the plaintiff is complaining \nabout and to know whether there is a legal basis for recovery.” Kittay \nv. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (internal quotation marks \nomitted). \n \n “When a complaint does not comply with the requirement that \nit be short and plain, the court has the power, on its own initiative or \nin response to a motion by the defendant, to strike any portions that \nare redundant or immaterial, or to dismiss the complaint.” \nSalahuddin, 861 F.2d at 42 (internal citation omitted). But “[d]ismissal \n. . . is usually reserved for those cases in which the complaint is so \nconfused, ambiguous, vague, or otherwise unintelligible that its true \nsubstance, if any, is well disguised.” Id. \n \n Here, the District Court dismissed Harnage’s amended \ncomplaint for failing to adequately put the defendants on notice of the \nclaims specifically asserted against each of them. The District Court \ndescribed the allegations set forth in the amended complaint as \n“general complaints of lack of medical treatment or lack of effective \nmedical treatment” that “fail to include any definite or specific dates \non which requests for medical treatment or services or requests to \nfacilitate medical treatment were made, any dates on which a \n\n\n\n\n 5 \n\fdefendant allegedly denied or ignored requests for treatment or \nservices or any dates on which a defendant allegedly responded to a \nrequest for treatment, met with the plaintiff in connection with a \nmedical appointment or offered treatment for the plaintiff’s \nconditions.” See Harnage v. Lightner, No. 3:16cv1576(AWT), Dkt. No. 15 \n(“Ruling and Order”), at 6. \n \n We conclude that, despite these shortcomings, the amended \ncomplaint substantially complies with Rule 8. Liberally construed, the \namended complaint identifies discrete defendants and the actions \ntaken by these defendants that purportedly violated Harnage’s Eighth \nAmendment rights. To wit, Harnage repeatedly sought treatment \nfrom MacDougall‐Walker medical staff members including: Dr. Pillai, \nDr. O’Hallaran, Dr. Nagvi, P.A. Kevin McChrystal, P.A. Rob, Lisa \nCaldonero, Nurse Caroline, Nurse Nikki, Nurse Marissa, Nurse Miya, \nNurse James, Janes 1‐5, and Johns 1‐5. He alleges that he failed to \n“receive effective or proper medical treatment for his constipation” \nfrom these defendants. See Harnage v. Lightner, No. 3:16cv1576(AWT), \nDkt. No. 11 (“Am. Compl.”), ¶¶ 25, 27. These defendants also allegedly \nfailed to provide Harnage with the prescriptions he had been \npromised, or refills thereof. Id. ¶ 28. According to the amended \ncomplaint, it was due to these defendants’ “deliberate indifference to \n[his] serious medical needs”—as evidenced by their failure to ever \nexamine Harnage prior to January 2014—that Harnage’s condition \ndeteriorated. Id. ¶ 29. The amended complaint further alleges that \ndefendant Rikel Lightner repeatedly ignored Harnage’s requests to \ncorrect the facility’s medical deficiencies. Id. ¶ 41. Finally, with respect \n\n\n\n\n 6 \n\fto Lisa Caldonero, L.P.N. Francis, P.A. Rob, RN Heidi Greene, and \nJane 1, the amended complaint alleges that these defendants imposed \nconditions on the plaintiff beyond what was authorized by \nAdministrative Directive 8.9, which in turn made it more difficult for \nHarnage to file Health Services Reviews in connection with this \ncondition. Id. ¶ 44. \n \n In addition, we note that the failure to allege specific dates does \nnot necessarily run afoul of Rule 8, especially where, as here, the \nplaintiff lacks ready access to his medical records. See McEachin, 357 \nF.3d at 201 (“Our reluctance to dismiss these complaints at such an \nearly stage of the proceedings stems in part from the limited . . . \nresources available to pro se plaintiffs, which may hamper their ability \nto articulate potentially valid claims . . . .”). \n \n In sum, while Harnage’s amended complaint may not represent \nthe paradigm of notice pleading, it is not the incomprehensible \n“labyrinthian prolixity of unrelated and vituperative charges” that \nRule 8 was intended to curb. Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. \n1972). Because “sua sponte dismissal of pro se prisoner petitions which \ncontain non‐frivolous claims . . . is disfavored by this Court,” \nMcEachin, 357 F.3d at 200 (internal quotation marks and brackets \nomitted), and because Harnage’s complaint—liberally construed—\nsubstantially complies with Rule 8, we vacate the District Court’s \njudgment insofar as it dismisses the amended complaint on this basis.3 \n\n We are mindful that the District Court has already afforded Harnage an \n 3\n\nopportunity to amend his complaint and has twice provided advice for how to \n\n\n\n\n 7 \n\f C. Rule 20 \n\n Rule 20 permits joinder of multiple defendants if “any right to \nrelief is asserted against them jointly, severally, or in the alternative \nwith respect to or arising out of the same transaction, occurrence, or \nseries of transactions and occurrences” and “any questions of law or \nfact common to all defendants will arise in the action.” Fed. R. Civ. P. \n20(a)(2). \n \n We disagree with the District Court’s conclusion that Harnage’s \ncomplaint asserts more than one distinct claim against multiple \ndefendants. The amended complaint alleges that the defendants’ \nactions (or inaction) individually and cumulatively resulted in the \ndenial of adequate medical care for Harnage’s hemorrhoid condition \nprior to his first surgery. These allegations are thus sufficiently related \nto constitute a “series of transactions and occurrences.” Moreover, the \nquestion of whether Harnage was denied proper medical care in \nviolation of the Eighth Amendment is clearly a common question of \n\ncomply with Rule 8. But we do not agree with the District Court’s conclusion that \nHarnage failed to comply with its prior orders. In its Initial Review Order, for \nexample, the District Court took issue with the complaint’s general references to \nthe “MacDougall defendants” and the “UCONN defendants,” explaining that these \n“general allegations are not sufficient to put any [individual] defendant on notice \nof the claims specifically asserted against him or her.” Harnage v. Lightner, No. \n3:16cv1576(AWT), Dkt. No. 7, at 4. In the amended complaint, by contrast, Harnage \nattempts to remedy this issue by specifically naming the medical staff members \nfrom whom he sought treatment for his condition. See Am. Compl. ¶¶ 25, 33, 44. \nMoreover, none of the District Court’s prior guidance regarding Rule 8 gave the \ndefendant notice that he would face dismissal with prejudice if he failed to specify \nthe dates of the alleged omissions or acts perpetrated by the named defendants. \n\n\n\n\n 8 \n\flaw, if not also fact, with respect to the named defendants. Thus, even \nthough Harnage’s allegations span several years and invoke several \ndefendants, they all arise from the alleged failure of the named \ndefendants to adequately treat Harnage’s hemorrhoid condition \nbefore his first surgery.4 \n\n D. Failure to State a Claim \n\n The District Court correctly concluded that the amended \ncomplaint fails to allege any wrongdoing by three named defendants: \nSurgical Intern Shari, Dr. Wu, and Dr. Giles. Accordingly, we affirm \nthe District Court’s dismissal of the complaint as to those three \ndefendants. \n\n\n\n\n The District Court overstates the degree to which the amended complaint \n 4\n\nexceeds its prescribed scope. See Ruling and Order, at 4. While paragraph 50 of \nHarnage’s amended complaint does reference a second hemorrhoid surgery in \nearly 2016, the remainder of his claims are plainly directed toward the inadequate \ntreatment he received before his first surgery, between August 2012 and October \n2014. See Am. Compl. ¶ 34 (claiming that he endured needless suffering for a period \nof “more than 24 months,” i.e., from August 2012 to October 2014). Read in context, \nthe single reference to the 2016 surgery simply serves to underscore the gravity of \nHarnage’s medical condition; it does not expand the scope of the complaint beyond \nthe approximately 24‐month period preceding his first hemorrhoid surgery. \n\n\n\n\n 9 \n\f III. CONCLUSION \n\n To summarize: We hold that Harnage’s amended complaint \nsubstantially complies with Federal Rules of Civil Procedure 8 and 20. \nWe agree, however, that the amended complaint fails to state a claim \nagainst Surgical Intern Shari, Dr. Wu, and Dr. Giles. \n\n For the foregoing reasons, we AFFIRM the District Court’s \ndismissal of Surgical Intern Shari, Dr. Wu, and Dr. Giles for failure to \nstate a claim, and VACATE AND REMAND the remainder of the May \n1, 2018 judgment for further proceedings consistent with this opinion. \n\n \n\n\n\n\n 10\n[END_CASE]",
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4,591,188 | Disability Rights N.Y. v. New York | 2019-02-15 | 17-2812-cv | U.S. Court of Appeals for the Second Circuit | {"judges": "Before: CABRANES, LYNCH, and CHIN, Circuit Judges.", "parties": "", "opinions": [{"author": "CHIN, Circuit Judge:", "type": "010combined", "text": "17‐2812‐cv \nDisability Rights N.Y. v. New York et al. \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n \n\n August Term 2018 \n\n (Argued: August 16, 2018 Decided: February 15, 2019) \n\n Docket No. 17‐2812‐cv \n \n\n DISABILITY RIGHTS NEW YORK, \n \n Plaintiff‐Appellant, \n \n v. \n \n STATE OF NEW YORK, NEW YORK STATE UNIFIED COURT SYSTEM, JANET \n DIFIORE, as Chief Judge of the New York State Unified Court System, \n LAWRENCE K. MARKS, as Chief Administrative Judge of the New York State \n Unified Court System, \n \n Defendants‐Appellees. \n \n\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT \n FOR THE SOUTHERN DISTRICT OF NEW YORK \n\n \nBefore: \n CABRANES, LYNCH, and CHIN, Circuit Judges. \n \n\f Appeal from a judgment entered in the United States District Court \n\nfor the Southern District of New York (Hellerstein, J.) granting defendants‐\n\nappelleesʹ motion for judgment on the pleadings and dismissing the complaint. \n\nPlaintiff‐appellant Disability Rights New York (ʺDRNYʺ) alleges constitutional \n\nand other deficiencies in the manner in which guardianship proceedings are \n\nconducted in New York Surrogateʹs Court under Article 17A of the Surrogateʹs \n\nCourt Procedure Act. Relying on Younger v. Harris, 401 U.S. 37 (1971), and \n\nOʹShea v. Littleton, 414 U.S. 488 (1974), the district court determined that it was \n\nrequired to abstain from hearing the case. On appeal, DRNY contends that the \n\ndistrict court erred in abstaining. \n\n AFFIRMED. \n \n\n JENNIFER J. MONTHIE (Lara H. Weissman, on the brief), \n Disability Rights New York, Albany, New York, \n for Plaintiff‐Appellant. \n \n MARK S. GRUBE, Assistant Solicitor General (Barbara D. \n Underwood, Solicitor General, Steven C. Wu, \n Deputy Solicitor General, on the brief), for Letitia \n James, Attorney General for the State of New \n York, New York, New York, for Defendants‐\n Appellants. \n ___________ \n\n \n\n\n 2 \n \n\fCHIN, Circuit Judge: \n\n Article 17A of the New York Surrogateʹs Court Procedure Act (the \n\nʺSCPAʺ) governs guardianship proceedings in New York State Surrogateʹs Court \n\nfor individuals with intellectual and developmental disabilities. The statute was \n\nenacted in 1969 to permit the appointment of parents or other interested persons \n\nas guardians for individuals unable to care for themselves. Plaintiff‐appellant \n\nDisability Rights New York (ʺDRNYʺ) brought this action below contending that \n\nthe statute is unconstitutional because it does not provide adequate protection \n\nfor these individuals, and seeking declaratory and injunctive relief to compel \n\ndefendants‐appellees ‐‐ the State of New York, its court system, and its Chief \n\nJudge and Chief Administrative Judge (ʺDefendantsʺ) ‐‐ to alter the manner in \n\nwhich guardianship proceedings are conducted. \n\n The district court did not reach the merits of DRNYʹs claims as it \n\ngranted Defendantsʹ motion for judgment on the pleadings, abstaining pursuant \n\nto Younger v. Harris, 401 U.S. 37 (1971), and OʹShea v. Littleton, 414 U.S. 488 (1974). \n\n For the reasons set forth below, we affirm the judgment of the \n\ndistrict court.1 \n\n \n1 As we affirm on abstention grounds, we do not reach the issue of standing raised \nby Defendants on appeal because we may ʺdecide a case under Younger without \n 3 \n \n\f BACKGROUND \n\nA. Relevant Statutory Provisions \n\n New York State utilizes two primary procedures related to legal \n\nguardianships: Article 17A of the Surrogateʹs Court Procedure Act (the ʺSCPAʺ) \n\nand Article 81 of the New York Mental Hygiene Law (the ʺMHLʺ). \n\n 1. Article 17A \n\n Article 17A governs guardianship proceedings in New York State \n\nSurrogateʹs Court for individuals with intellectual and developmental \n\ndisabilities. It was designed primarily to allow parents to serve as long‐term \n\nguardians of children who cannot care for themselves. See In re Chaim A.K., 885 \n\nN.Y.S.2d 582, 586 (Sur. Ct. New York County 2009). Guardianships are not \n\nlimited, however, to parent‐child relationships, and guardianship can be \n\nobtained by any ʺinterested person,ʺ including certain non‐profit organizations. \n\nSee SCPA §§ 1751, 1760. \n\n\n\n\n \naddressing [DRNYʹs] constitutional standing to bring suit.ʺ Spargo v. N.Y. State Commʹn \non Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003); see also Ruhrgas AG v. Marathon Oil Co., \n526 U.S. 574, 585 (1999) (reaffirming the inherent flexibility that federal courts exercise \nʺto choose among threshold groundsʺ for disposing of a case without reaching the \nmerits). \n 4 \n \n\f Article 17A guardianships, which allocate broad decision‐making \n\nauthority to the petitioner over the individual with alleged disabilities, are \n\nobtained through judicial proceedings before the New York Surrogateʹs Court. \n\nSee In re Chaim A.K., 885 N.Y.S.2d at 585. These procedures are designed to be \n\naccessible to lay people. See id. ʺVirtually allʺ Article 17A proceedings are \n\nuncontested and devoid of controversy. See In re Derek, 821 N.Y.S.2d 387, 390 \n\n(Sur. Ct. Broome County 2006). \n\n An Article 17A proceeding commences with service of notice by the \n\nperson seeking guardianship to a wide range of interested parties. See SCPA \n\n§ 1753. The court then conducts a hearing at ʺwhich [the potential ward] shall \n\nhave the right to a jury trial.ʺ Id. § 1754(1). The court can dispense with a \n\nhearing with the consent of both parents. Id. The individual with an alleged \n\ndisability shall be present at the hearing, unless the court is satisfied that such \n\nperson is ʺmedically incapable of being presentʺ or that her presence would not \n\nbe in her best interest. Id. § 1754(3). Though Article 17A does not provide for the \n\nright to an attorney, courts have sometimes appointed attorneys in difficult \n\ncases. See, e.g., In re Zhuo, 42 N.Y.S.3d 530, 532 (Sur. Ct. Kings County 2016). To \n\nobtain an Article 17A guardianship, a petitioner must present proof that two \n\n\n\n 5 \n \n\fphysicians (or a physician and a psychologist) have certified that (1) the \n\nindividual has an intellectual or developmental disability that makes managing \n\nher own life impractical, (2) the situation is ʺpermanentʺ or ʺlikely to continue \n\nindefinitely,ʺ and (3) guardianship is in the individualʹs best interests. See SCPA \n\n§§ 1750, 1750‐a. Courts have recognized that the ʺbest interestsʺ standard is a \n\nlower standard of proof than the clear and convincing evidence standard. In re \n\nMueller, 887 N.Y.S.2d 768, 769 (Sur. Ct. Dutchess County 2009). Once a petition is \n\ngranted, the court retains jurisdiction over the guardianship and may modify it \n\nat the request of the ward or anyone acting on her behalf. See SCPA §§ 1755, \n\n1758. \n\n 2. Article 81 \n\n Article 81 governs guardianship proceedings in New York State \n\nSupreme Court. Unlike Article 17A, Article 81 is designed primarily to deal with \n\nelderly, disabled adults. In re Lavecchia, 170 Misc. 3d 211, 213 (Sup. Ct. Rockland \n\nCounty 1996). Article 81 is not limited to individuals diagnosed with specific \n\ndisabilities, but instead is designed for adults with ʺfunctional limitationsʺ that \n\nimpede their ability to provide for their own personal needs. MHL § 81.02. \n\n\n\n\n 6 \n \n\f Article 81 has different requirements than Article 17A. For example, \n\nunder Article 81 the court must hold a hearing, at which the prospective ward \n\nmust be present. Id. § 81.11(a), (c). At the hearing, the petitioner has the burden \n\nof establishing the need for guardianship by ʺclear and convincing evidence.ʺ Id. \n\n§§ 81.02(b), 81.12(a). And once a petition has been granted, guardians have \n\nongoing disclosure requirements. See, e.g., id. § 81.31 (requiring the guardian to \n\nfile an annual report with the supervising court). In sum, Article 81 proceedings \n\ncontain more checks and oversight than Article 17A proceedings: They require \n\nmore detailed pleadings, proof, and notice, and they provide appointed counsel, \n\na hearing that the potential ward must attend, ongoing supervision and \n\nreporting, and narrowly tailored guardianship powers. These more robust \n\nstandards form the basis for DRNYʹs argument on the merits. \n\nB. Procedural Background \n\n On September 21, 2016, DRNY brought this action to, inter alia, \n\nenjoin defendants from appointing legal guardians pursuant to Article 17A. \n\nDRNY alleges that Article 17A proceedings, as currently administered, do not \n\nmeet the standards of due process and equal protection. Rather than citing the \n\ncircumstances of specific individuals subject to Article 17A proceedings, \n\n\n\n 7 \n \n\fhowever, DRNYʹs complaint relies primarily on a comparison of the two New \n\nYork State guardianship schemes ‐‐ Article 71A of the SCPA and Article 81 of the \n\nMHL. \n\n DRNY brought suit pursuant to (1) 42 U.S.C. § 1983, (2) Section 504 \n\nof the Rehabilitation Act of 1973 (the ʺRehabilitation Actʺ), 29 U.S.C. § 794, and \n\n(3) Title II of the Americans with Disabilities Act (the ʺADAʺ), 42 U.S.C. § 12132. \n\nDRNY asked for a declaration that Article 17A violates the Constitution, the \n\nADA, and the Rehabilitation Act. It also sought an injunction requiring \n\ndefendants to take certain actions in Article 17A guardianship proceedings, such \n\nas providing notice, applying a certain burden of proof, and providing \n\nsubstantive and procedural rights equal to those provided in Article 81 \n\nproceedings. Appʹx at 41‐42. \n\n Defendants answered the complaint and moved for judgment on the \n\npleadings. On August 16, 2017, the district court granted defendantsʹ motion on \n\nabstention grounds pursuant to Younger v. Harris, 401 U.S. 37 (1971), and OʹShea \n\nv. Littleton, 414 U.S. 488 (1974). The district court held that DRNYʹs claims fell \n\nʺsquarelyʺ under the third of the three categories of cases in which Younger \n\nprinciples require a federal court to refuse to exercise its jurisdiction in deference \n\n\n\n 8 \n \n\fto state courts. Disability Rights N.Y. v. New York, No. 16‐cv‐7363, 2017 WL \n\n6388949, at *2 (S.D.N.Y. Aug. 16, 2017) (citing Sprint Commcʹns, Inc. v. Jacobs, 571 \n\nU.S. 69, 78 (2013)). The district court also relied on OʹShea, holding that the \n\nproposed injunction would impose ʺstandards on state court proceedings that \n\nʹwould require for their enforcement the continuous supervision by the federal \n\ncourt over the conduct ofʹ those proceedings.ʺ Id. (quoting OʹShea, 414 U.S. at 501 \n\n(alteration omitted)). DRNY timely appealed.2 \n\n DISCUSSION \n\n DRNY argues that the district court erred in abstaining from \n\nexercising its jurisdiction. In particular, DRNY argues that the district court \n\nerred in holding that the third Younger category applies. It also argues that the \n\ndistrict courtʹs reliance on OʹShea is misplaced. For the reasons set forth below, \n\nwe conclude that the district court correctly abstained under OʹShea. \n\nI. Applicable Law \n\n We review de novo the ʺessentiallyʺ legal determination of whether \n\nthe requirements for abstention have been met. Diamond ʺDʺ Constr. Corp. v. \n\n\n\n \n2 ʺ[A]n order of abstention is considered final for purposes of appeal, at least when \nthe order applies to the entire complaint.ʺ Pathways, Inc. v. Dunne, 329 F.3d 108, 113 (2d \nCir. 2003). \n 9 \n \n\fMcGowan, 282 F.3d 191, 197‐98 (2d Cir. 2002); accord Schlager v. Phillips, 166 F.3d \n\n439, 441 (2d Cir. 1999). \n\n In general, ʺfederal courts are obliged to decide cases within the \n\nscope of federal jurisdiction.ʺ Sprint, 571 U.S. at 72. The Supreme Court, \n\nhowever, has recognized ʺcertain instances in which the prospect of undue \n\ninterference with state proceedings counsels against federal relief.ʺ Id. \n\n Federal courts must abstain where a party seeks to enjoin an \n\nongoing, parallel state criminal proceeding, to preserve the ʺlongstanding public \n\npolicy against federal court interference with state court proceedingsʺ based on \n\nprinciples of federalism and comity. Younger, 401 U.S. at 43‐44. The Younger \n\ndoctrine has been extended beyond ongoing criminal cases to include particular \n\nstate civil proceedings akin to criminal prosecutions, see Huffman v. Pursue, Ltd., \n\n420 U.S. 592 (1975), or that implicate a stateʹs interest in enforcing the orders and \n\njudgments of its courts, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). In Sprint, \n\nthe Supreme Court held that Youngerʹs scope is limited to these three \n\nʺexceptionalʺ categories ‐‐ ʺongoing state criminal prosecution,ʺ ʺcertain civil \n\nenforcement proceedings,ʺ and ʺcivil proceedings involving certain orders \n\n\n\n\n 10 \n \n\funiquely in furtherance of the state courtsʹ ability to perform their judicial \n\nfunctions.ʺ Sprint, 571 U.S. at 78. \n\n Here, only the third category is at issue: civil proceedings involving \n\ncertain orders uniquely in furtherance of the state courtsʹ ability to perform their \n\njudicial functions. Civil contempt orders and orders requiring the posting of \n\nbonds on appeal fall into this category. See NOPSI v. Council of City of New \n\nOrleans, 491 U.S. 350, 368 (1989) (citing Juidice v. Vail, 430 U.S. 327, 336 n.12 (1977); \n\nPennzoil Co., 481 U.S. at 13). In Juidice, the Supreme Court abstained from \n\ninterfering with the ability of New York state courts to issue contempt decrees \n\nbecause ʺ[t]he contempt power lies at the core of the administration of a Stateʹs \n\njudicial system,ʺ and ʺstands in aid of the authority of the judicial system, so that \n\nits orders and judgments are not rendered nugatory.ʺ 430 U.S. at 335, 336 n.12. \n\nIn Pennzoil, the Supreme Court abstained from interfering with the ability of \n\nTexas state courts to require the posting of appeal bonds because of the \n\nʺimportance to the States of enforcing the orders and judgments of their courts.ʺ \n\n481 U.S. at 13. We recently followed this line of cases in finding that abstention \n\nwas appropriate in a case seeking to enjoin New York courts from ordering \n\n\n\n\n 11 \n \n\fattorneysʹ fees in child custody cases. See Falco v. Justices of Matrimonial Parts of \n\nSupreme Court of Suffolk Cty., 805 F.3d 425, 428 (2d Cir. 2015). \n\n Although Younger mandates abstention only when the plaintiff seeks \n\nto enjoin ongoing state proceedings and only in the three instances identified in \n\nSprint, the Supreme Court has also held that even where no state proceedings are \n\npending, federal courts must abstain where failure to do so would result in ʺan \n\nongoing federal audit of state criminal proceedings.ʺ OʹShea, 414 U.S. at 500. In \n\nOʹShea, the plaintiffs sought to enjoin state court judges from carrying out \n\nallegedly unconstitutional policies and practices relating to bond setting, \n\nsentencing, and jury fees in criminal cases. Id. at 491‐92. The Court held that ʺan \n\ninjunction aimed at controlling or preventing the occurrence of specific events \n\nthat might take place in the course of future state criminal trialsʺ would amount \n\nto ʺnothing less than an ongoing federal audit of state . . . proceedings which \n\nwould indirectly accomplish the kind of interference that [Younger] and related \n\ncases sought to prevent.ʺ Id. at 500. Thus, to avoid effecting ʺa major continuing \n\nintrusion of the equitable power of the federal courts into the daily conduct of \n\nstate criminal proceedings,ʺ which is ʺantipathetic to established principles of \n\ncomity,ʺ id. at 501‐02, federal courts must be constantly mindful of the ʺspecial \n\n\n\n 12 \n \n\fdelicacy of the adjustment to be preserved between federal equitable power and \n\nState administration of its own law,ʺ id. at 500 (quoting Stefanelli v. Minard, 342 \n\nU.S. 117, 120 (1951)). Hence, OʹShea is an extension of the principles set forth in \n\nYounger, and although Younger does not apply in the absence of pending \n\nproceedings, see Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (ʺAbsent any \n\npending proceeding in state tribunals, therefore, application by the lower courts \n\nof Younger abstention was clearly erroneous.ʺ (emphasis in original)), the \n\nconsiderations underlying Younger are still very much at play even when a suit is \n\nfiled prior to the onset of state proceedings, see OʹShea, 414 U.S. at 500; see also \n\nCourthouse News Serv. v. Brown, 908 F.3d 1063, 1072 (7th Cir. 2018) (ʺWhile this \n\ncase does not fit neatly into the Younger doctrine, it fits better into the Supreme \n\nCourtʹs extension of the Younger principles in OʹShea . . . .ʺ). \n\n Like Younger, OʹShea has also been applied in certain civil contexts \n\ninvolving the operations of state courts. See Kaufman v. Kaye, 466 F.3d 83, 86 (2d \n\nCir. 2006) (abstaining under OʹShea from enjoining internal state court judicial \n\nassignment procedures). Many of our sister circuits have abstained in similar \n\nsituations. See Courthouse News Serv., 908 F.3d at 1065‐66 (abstaining under \n\nOʹShea, and the principles of federalism and comity that underly it, from \n\n\n\n 13 \n \n\fenjoining the Clerk of the Circuit Court of Cook County to release newly filed \n\ncomplaints at the moment of receipt); Oglala Sioux Tribe v. Fleming, 904 F.3d 603, \n\n612 (8th Cir. 2018) (abstaining under OʹShea from enjoining allegedly \n\nunconstitutional child custody proceedings because ʺ[t]he relief requested would \n\ninterfere with the state judicial proceedings by requiring the defendants to \n\ncomply with numerous procedural requirementsʺ and ʺfailure to comply with \n\nthe district court’s injunction would subject state officials to potential sanctionsʺ); \n\nMiles v. Wesley, 801 F.3d 1060, 1064, 1066 (9th Cir. 2015) (abstaining under OʹShea \n\nfrom enjoining the Los Angeles Supreme Court from reducing the number of \n\ncourthouses used for unlawful detainer actions); Hall v. Valeska, 509 F. Appʹx 834, \n\n835‐36 (11th Cir. 2012) (per curiam) (abstaining under OʹShea from enjoining \n\nallegedly discriminatory jury selection procedures); Parker v. Turner, 626 F.2d 1, 8 \n\n& n.18 (6th Cir. 1980) (providing that OʹShea establishes a rule of ʺnear‐absolute \n\nrestraint . . . to situations where the relief sought would interfere with the day‐to‐\n\nday conduct of state trialsʺ).3 \n\n\n \n3 While the Supreme Court in Sprint made clear that Youngerʹs scope should be \nlimited to the three specified categories, 134 S. Ct. at 591, 594, the Court did not suggest \nthat abstention under OʹShea should be circumscribed. Indeed, courts have continued \nto apply OʹShea even after Sprint. See, e.g., Courthouse News Serv., 908 F.3d at 1072; \nOglala Sioux Tribe, 904 F.3d at 612; Miles, 801 F.3d at 1064‐65. \n \n 14 \n \n\fII. Application \n\n DRNY first argues that the third category of Younger does not apply \n\nto this case because there is no pending, parallel state court action. Indeed, \n\nDRNY is not seeking to enjoin any specific pending action, but it is instead \n\nseeking to affect the manner in which all Article 17A proceedings ‐‐ present and \n\nfuture ‐‐ are conducted.4 Mindful of the Supreme Courtʹs admonition that the \n\nthree ʺexceptionalʺ categories under Younger are to be narrowly construed, \n\nSprint, 571 U.S. at 73, 78, 82 (noting that the three categories ʺdefine Youngerʹs \n\nscope,ʺ that Younger extends ʺno further,ʺ and that it has not ʺapplied Younger \n\noutside these three ʹexceptionalʹ categoriesʺ), we do not decide whether this case \n\nfits within the third Younger category, for we conclude that it falls squarely \n\nwithin OʹSheaʹs abstention framework. \n\n Our decision in Kaufman v. Kaye is instructive. There, we abstained \n\nunder OʹShea from declaring that New York Stateʹs system for assigning cases \n\n\n\n \n4 We note that DRNYʹs complaint lacks nearly any specificity in its pleading. The \ncomplaint itself merely compares the aspects of two pieces of legislation and fails to \nmention a single individual by name. Indeed, DRNY ʺtenders ʹnaked assertionsʹ devoid \nof ʹfurther factual enhancement.ʹʺ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration \nomitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). As drafted, \nDRNYʹs pleading ʺgive[s] no indication of the circumstances that support the \nconclusory allegation of unlawfulness.ʺ Drimal v. Tai, 786 F.3d 219, 224 (2d Cir. 2015). \n 15 \n \n\famong panels of appellate judges violated the Constitution and we refused to \n\norder the state legislature to establish a new procedure for assigning appeals. \n\nKaufman, 466 F.3d at 84‐85, 87. Doing so, we held, would ʺraise compliance \n\nissues under the putative federal injunctionʺ as well as claims that ʺthe state \n\ncourtʹs chosen remedy violated the Constitution or the terms of that injunction,ʺ \n\nwhich ʺwould inevitably lead to precisely the kind of piecemeal interruptions of \n\nstate proceedings condemned in OʹShea.ʺ Id. at 87 (internal quotation marks and \n\nellipsis omitted). A recent decision of the Ninth Circuit is also helpful. In Miles \n\nv. Wesley, the Ninth Circuit abstained under OʹShea from enjoining the Los \n\nAngeles Supreme Court from, inter alia, eliminating any courthouses that heard \n\nunlawful detainer actions. 801 F.3d at 1064. The court held that the requested \n\ninjunction would result in ʺheavy federal interference in such sensitive state \n\nactivities as administration of the judicial system.ʺ Id. at 1063 (quoting L.A. Cty. \n\nBar Assʹn v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)). \n\n In seeking the injunction in this case, DRNY asked the district court \n\n(and asks this Court now) to direct the New York State Unified Court System, the \n\nChief Judge of the State of New York, and the Chief Administrative Judge for the \n\nCourts of New York to (1) notify all current Article 17A wards of their right to \n\n\n\n 16 \n \n\frequest modification or termination of their guardianship order, (2) hold \n\nproceedings that provide augmented substantive and procedural rights ʺno less \n\nthanʺ those of Article 81 proceedings, and (3) cease future Article 17A \n\nadjudications ʺuntil defendants ensure that the proceedings provide substantive \n\nand procedural rightsʺ on par with those of Article 81 proceedings. Appʹx at 42. \n\n As in OʹShea, DRNYʹs requested relief would effect a continuing, \n\nimpermissible ʺauditʺ of New York Surrogateʹs Court proceedings, which would \n\noffend the principles of comity and federalism. Simply put, DRNY seeks to \n\nʺcontrol[] or prevent[] the occurrence of specific events that might take place in \n\nthe court of future state [Article 17A proceedings.]ʺ OʹShea, 414 U.S. at 500. With \n\nsuch an injunction in place, anyone seeking or objecting to Article 17A \n\nguardianship in the future would be able to ʺraise compliance issues under the \n\nputative federal injunction claiming that the state courtʹs chosen remedy violated \n\nthe Constitution or the terms of that injunction.ʺ Kaufman, 466 F.3d at 87; see also \n\nid. (ʺ[A]ny remedy fashioned by the state would then be subject to future \n\nchallenges in the district court.ʺ). Ongoing, case‐by‐case oversight of state courts, \n\nlike the New York Surrogateʹs Court, is exactly the sort of interference OʹShea \n\nseeks to avoid. Kaufman, 466 F.3d at 86 (ʺ[F]ederal courts may not entertain \n\n\n\n 17 \n \n\factions . . . that seek to impose ʹan ongoing federal audit of state . . . \n\nproceedings.ʹʺ (quoting OʹShea, 414 U.S. at 500)). Indeed, such ʺmonitoring of the \n\noperation of state court functions . . . is antipathetic to established principles of \n\ncomity.ʺ OʹShea, 414 U.S. at 501‐02. Because this Court has ʺno power to \n\nintervene in the internal procedures of the state courtsʺ and cannot ʺlegislate and \n\nengraft new procedures upon existing state . . . practices,ʺ the district court \n\ncorrectly abstained from exercising jurisdiction in this case. See Kaufman, 466 \n\nF.3d at 86 (quoting Wallace v. Kern, 520 F.2d 400, 404‐05 (2d Cir. 1975)). \n\n DRNY argues that federal courts have often found state statutes \n\nunconstitutional, including statutes resulting in the issuance of state court orders. \n\nIt cites landmark decisions such as Obergefell v. Hodges, 135 S. Ct. 2584 (2015) \n\n(holding that Michiganʹs law prohibiting same‐sex marriage violated equal \n\nprotection and due process rights), and Blakely v. Washington, 542 U.S. 296 (2004) \n\n(holding that Washingtonʹs sentencing law violates the Sixth Amendment). But \n\nthose cases did not implicate Younger. Plaintiffs in Obergefell challenged \n\nsubstantive state statutes, and plaintiffs in Blakely simply appealed a final \n\njudgment of the state courts. Here, DRNY seeks a far more substantial invasion \n\nof state courtsʹ domain; it would have federal courts conduct a preemptive \n\n\n\n 18 \n \n\freview of state court procedure in guardianship proceedings, an area in which \n\nstates have an especially strong interest. See Falco, 805 F.3d at 427. Such review \n\nwould directly impede ʺthe normal course of . . . proceedings in the state courts.ʺ \n\nOʹShea, 414 U.S. at 500; see also Sprint, 571 U.S. at 73 (noting that abstention is \n\nproper where relief would impede ʺthe state courtsʹ ability to perform their \n\njudicial functions.ʺ (quoting NOPSI, 491 U.S. at 368)). \n\n DRNY also seeks to have Article 17A declared unconstitutional and \n\nviolative of the Americans with Disability Act and Section 504 of the \n\nRehabilitation Act of 1973. DRNY argues that its request for declaratory relief is \n\nnot subject to abstention, as a declaratory judgment would not order the state \n\ncourts to take certain actions. We are not persuaded. In Samuels v. Mackell, the \n\nSupreme Court held that ʺordinarily a declaratory judgment will result in \n\nprecisely the same interference with and disruption of state proceedings that the \n\nlongstanding policy limiting injunctions was designed to avoid.ʺ 401 U.S. 66, 72 \n\n(1971); see also Miles, 801 F.3d at 1063‐64 (noting that where OʹShea is implicated, \n\neven where plaintiffs narrow their request only to declaratory relief, abstention is \n\nproper where the relief sought ʺwould inevitably set up the precise basis for \n\nfuture intervention condemned in OʹSheaʺ because ʺthe question of defendantsʹ \n\n\n\n 19 \n \n\fcompliance with any remedy imposed could be the subject of future court \n\nchallengesʺ (internal citations omitted)); Kaufman, 466 F.3d at 85 (abstaining \n\nunder OʹShea from hearing Kaufmanʹs complaint seeking injunctive and \n\ndeclaratory relief). Thus, the district court properly abstained from exercising \n\njurisdiction even as to DRNYʹs request for declaratory relief. \n\n We conclude by noting that abstention here is supported by the \n\nʺavailability of other avenues of relief.ʺ OʹShea, 414 U.S. at 504. DRNY may still \n\navail itself of the state courts to challenge the constitutionality of Article 17A \n\nproceedings. See Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., \n\n156 F.3d 432, 435 (2d Cir. 1998) (ʺState courts are courts of general jurisdiction \n\nand are accordingly presumed to have jurisdiction over federally‐created causes \n\nof action unless Congress indicates otherwise.ʺ). DRNY and any aggrieved \n\nindividuals will be able to obtain sufficient review in state court and, if needed, \n\nthe Supreme Court of the United States. See Allen v. McCurry, 449 U.S. 90, 105 \n\n(1980) (noting the Supreme Courtʹs confidence in state courts to adjudicate \n\nconstitutional issues); Kaufman, 466 F.3d at 87‐88. Indeed, New York state courts \n\nhave been diligent in reviewing the sufficiency of Article 17A proceedings, see, \n\ne.g., In re Mark C.H., 906 N.Y.S.2d 419, 427 (Sur. Ct. New York County 2010); In re \n\n\n\n 20 \n \n\fD.D., 19 N.Y.S.3d 867, 869‐71 (Sur. Ct. Kings County 2015), and understand well \n\nthe differences between Article 17A proceedings and Article 81 proceedings, see \n\nIn re Chaim A.K., 885 N.Y.S.2d at 584‐90. \n\n CONCLUSION \n\n Accordingly, for the reasons set forth above, the judgment of the \n\ndistrict court is AFFIRMED. \n\n\n\n\n 21", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4368441/", "author_raw": "CHIN, Circuit Judge:"}]} | CABRANES | LYNCH | CHIN | 1 | {"CABRANES": ", Circuit", "LYNCH": ", Circuit", "CHIN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4591188/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 2 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n",
"role": "system"
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"content": "[CASE_METADATA]\nCase name: Disability Rights N.Y. v. New York\nCourt: U.S. Court of Appeals for the Second Circuit\nDate decided: 2019-02-15\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n17‐2812‐cv \nDisability Rights N.Y. v. New York et al. \n \n UNITED STATES COURT OF APPEALS \n FOR THE SECOND CIRCUIT \n \n\n August Term 2018 \n\n (Argued: August 16, 2018 Decided: February 15, 2019) \n\n Docket No. 17‐2812‐cv \n \n\n DISABILITY RIGHTS NEW YORK, \n \n Plaintiff‐Appellant, \n \n v. \n \n STATE OF NEW YORK, NEW YORK STATE UNIFIED COURT SYSTEM, JANET \n DIFIORE, as Chief Judge of the New York State Unified Court System, \n LAWRENCE K. MARKS, as Chief Administrative Judge of the New York State \n Unified Court System, \n \n Defendants‐Appellees. \n \n\n ON APPEAL FROM THE UNITED STATES DISTRICT COURT \n FOR THE SOUTHERN DISTRICT OF NEW YORK \n\n \nBefore: \n CABRANES, LYNCH, and CHIN, Circuit Judges. \n \n\f Appeal from a judgment entered in the United States District Court \n\nfor the Southern District of New York (Hellerstein, J.) granting defendants‐\n\nappelleesʹ motion for judgment on the pleadings and dismissing the complaint. \n\nPlaintiff‐appellant Disability Rights New York (ʺDRNYʺ) alleges constitutional \n\nand other deficiencies in the manner in which guardianship proceedings are \n\nconducted in New York Surrogateʹs Court under Article 17A of the Surrogateʹs \n\nCourt Procedure Act. Relying on Younger v. Harris, 401 U.S. 37 (1971), and \n\nOʹShea v. Littleton, 414 U.S. 488 (1974), the district court determined that it was \n\nrequired to abstain from hearing the case. On appeal, DRNY contends that the \n\ndistrict court erred in abstaining. \n\n AFFIRMED. \n \n\n JENNIFER J. MONTHIE (Lara H. Weissman, on the brief), \n Disability Rights New York, Albany, New York, \n for Plaintiff‐Appellant. \n \n MARK S. GRUBE, Assistant Solicitor General (Barbara D. \n Underwood, Solicitor General, Steven C. Wu, \n Deputy Solicitor General, on the brief), for Letitia \n James, Attorney General for the State of New \n York, New York, New York, for Defendants‐\n Appellants. \n ___________ \n\n \n\n\n 2 \n \n\fCHIN, Circuit Judge: \n\n Article 17A of the New York Surrogateʹs Court Procedure Act (the \n\nʺSCPAʺ) governs guardianship proceedings in New York State Surrogateʹs Court \n\nfor individuals with intellectual and developmental disabilities. The statute was \n\nenacted in 1969 to permit the appointment of parents or other interested persons \n\nas guardians for individuals unable to care for themselves. Plaintiff‐appellant \n\nDisability Rights New York (ʺDRNYʺ) brought this action below contending that \n\nthe statute is unconstitutional because it does not provide adequate protection \n\nfor these individuals, and seeking declaratory and injunctive relief to compel \n\ndefendants‐appellees ‐‐ the State of New York, its court system, and its Chief \n\nJudge and Chief Administrative Judge (ʺDefendantsʺ) ‐‐ to alter the manner in \n\nwhich guardianship proceedings are conducted. \n\n The district court did not reach the merits of DRNYʹs claims as it \n\ngranted Defendantsʹ motion for judgment on the pleadings, abstaining pursuant \n\nto Younger v. Harris, 401 U.S. 37 (1971), and OʹShea v. Littleton, 414 U.S. 488 (1974). \n\n For the reasons set forth below, we affirm the judgment of the \n\ndistrict court.1 \n\n \n1 As we affirm on abstention grounds, we do not reach the issue of standing raised \nby Defendants on appeal because we may ʺdecide a case under Younger without \n 3 \n \n\f BACKGROUND \n\nA. Relevant Statutory Provisions \n\n New York State utilizes two primary procedures related to legal \n\nguardianships: Article 17A of the Surrogateʹs Court Procedure Act (the ʺSCPAʺ) \n\nand Article 81 of the New York Mental Hygiene Law (the ʺMHLʺ). \n\n 1. Article 17A \n\n Article 17A governs guardianship proceedings in New York State \n\nSurrogateʹs Court for individuals with intellectual and developmental \n\ndisabilities. It was designed primarily to allow parents to serve as long‐term \n\nguardians of children who cannot care for themselves. See In re Chaim A.K., 885 \n\nN.Y.S.2d 582, 586 (Sur. Ct. New York County 2009). Guardianships are not \n\nlimited, however, to parent‐child relationships, and guardianship can be \n\nobtained by any ʺinterested person,ʺ including certain non‐profit organizations. \n\nSee SCPA §§ 1751, 1760. \n\n\n\n\n \naddressing [DRNYʹs] constitutional standing to bring suit.ʺ Spargo v. N.Y. State Commʹn \non Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003); see also Ruhrgas AG v. Marathon Oil Co., \n526 U.S. 574, 585 (1999) (reaffirming the inherent flexibility that federal courts exercise \nʺto choose among threshold groundsʺ for disposing of a case without reaching the \nmerits). \n 4 \n \n\f Article 17A guardianships, which allocate broad decision‐making \n\nauthority to the petitioner over the individual with alleged disabilities, are \n\nobtained through judicial proceedings before the New York Surrogateʹs Court. \n\nSee In re Chaim A.K., 885 N.Y.S.2d at 585. These procedures are designed to be \n\naccessible to lay people. See id. ʺVirtually allʺ Article 17A proceedings are \n\nuncontested and devoid of controversy. See In re Derek, 821 N.Y.S.2d 387, 390 \n\n(Sur. Ct. Broome County 2006). \n\n An Article 17A proceeding commences with service of notice by the \n\nperson seeking guardianship to a wide range of interested parties. See SCPA \n\n§ 1753. The court then conducts a hearing at ʺwhich [the potential ward] shall \n\nhave the right to a jury trial.ʺ Id. § 1754(1). The court can dispense with a \n\nhearing with the consent of both parents. Id. The individual with an alleged \n\ndisability shall be present at the hearing, unless the court is satisfied that such \n\nperson is ʺmedically incapable of being presentʺ or that her presence would not \n\nbe in her best interest. Id. § 1754(3). Though Article 17A does not provide for the \n\nright to an attorney, courts have sometimes appointed attorneys in difficult \n\ncases. See, e.g., In re Zhuo, 42 N.Y.S.3d 530, 532 (Sur. Ct. Kings County 2016). To \n\nobtain an Article 17A guardianship, a petitioner must present proof that two \n\n\n\n 5 \n \n\fphysicians (or a physician and a psychologist) have certified that (1) the \n\nindividual has an intellectual or developmental disability that makes managing \n\nher own life impractical, (2) the situation is ʺpermanentʺ or ʺlikely to continue \n\nindefinitely,ʺ and (3) guardianship is in the individualʹs best interests. See SCPA \n\n§§ 1750, 1750‐a. Courts have recognized that the ʺbest interestsʺ standard is a \n\nlower standard of proof than the clear and convincing evidence standard. In re \n\nMueller, 887 N.Y.S.2d 768, 769 (Sur. Ct. Dutchess County 2009). Once a petition is \n\ngranted, the court retains jurisdiction over the guardianship and may modify it \n\nat the request of the ward or anyone acting on her behalf. See SCPA §§ 1755, \n\n1758. \n\n 2. Article 81 \n\n Article 81 governs guardianship proceedings in New York State \n\nSupreme Court. Unlike Article 17A, Article 81 is designed primarily to deal with \n\nelderly, disabled adults. In re Lavecchia, 170 Misc. 3d 211, 213 (Sup. Ct. Rockland \n\nCounty 1996). Article 81 is not limited to individuals diagnosed with specific \n\ndisabilities, but instead is designed for adults with ʺfunctional limitationsʺ that \n\nimpede their ability to provide for their own personal needs. MHL § 81.02. \n\n\n\n\n 6 \n \n\f Article 81 has different requirements than Article 17A. For example, \n\nunder Article 81 the court must hold a hearing, at which the prospective ward \n\nmust be present. Id. § 81.11(a), (c). At the hearing, the petitioner has the burden \n\nof establishing the need for guardianship by ʺclear and convincing evidence.ʺ Id. \n\n§§ 81.02(b), 81.12(a). And once a petition has been granted, guardians have \n\nongoing disclosure requirements. See, e.g., id. § 81.31 (requiring the guardian to \n\nfile an annual report with the supervising court). In sum, Article 81 proceedings \n\ncontain more checks and oversight than Article 17A proceedings: They require \n\nmore detailed pleadings, proof, and notice, and they provide appointed counsel, \n\na hearing that the potential ward must attend, ongoing supervision and \n\nreporting, and narrowly tailored guardianship powers. These more robust \n\nstandards form the basis for DRNYʹs argument on the merits. \n\nB. Procedural Background \n\n On September 21, 2016, DRNY brought this action to, inter alia, \n\nenjoin defendants from appointing legal guardians pursuant to Article 17A. \n\nDRNY alleges that Article 17A proceedings, as currently administered, do not \n\nmeet the standards of due process and equal protection. Rather than citing the \n\ncircumstances of specific individuals subject to Article 17A proceedings, \n\n\n\n 7 \n \n\fhowever, DRNYʹs complaint relies primarily on a comparison of the two New \n\nYork State guardianship schemes ‐‐ Article 71A of the SCPA and Article 81 of the \n\nMHL. \n\n DRNY brought suit pursuant to (1) 42 U.S.C. § 1983, (2) Section 504 \n\nof the Rehabilitation Act of 1973 (the ʺRehabilitation Actʺ), 29 U.S.C. § 794, and \n\n(3) Title II of the Americans with Disabilities Act (the ʺADAʺ), 42 U.S.C. § 12132. \n\nDRNY asked for a declaration that Article 17A violates the Constitution, the \n\nADA, and the Rehabilitation Act. It also sought an injunction requiring \n\ndefendants to take certain actions in Article 17A guardianship proceedings, such \n\nas providing notice, applying a certain burden of proof, and providing \n\nsubstantive and procedural rights equal to those provided in Article 81 \n\nproceedings. Appʹx at 41‐42. \n\n Defendants answered the complaint and moved for judgment on the \n\npleadings. On August 16, 2017, the district court granted defendantsʹ motion on \n\nabstention grounds pursuant to Younger v. Harris, 401 U.S. 37 (1971), and OʹShea \n\nv. Littleton, 414 U.S. 488 (1974). The district court held that DRNYʹs claims fell \n\nʺsquarelyʺ under the third of the three categories of cases in which Younger \n\nprinciples require a federal court to refuse to exercise its jurisdiction in deference \n\n\n\n 8 \n \n\fto state courts. Disability Rights N.Y. v. New York, No. 16‐cv‐7363, 2017 WL \n\n6388949, at *2 (S.D.N.Y. Aug. 16, 2017) (citing Sprint Commcʹns, Inc. v. Jacobs, 571 \n\nU.S. 69, 78 (2013)). The district court also relied on OʹShea, holding that the \n\nproposed injunction would impose ʺstandards on state court proceedings that \n\nʹwould require for their enforcement the continuous supervision by the federal \n\ncourt over the conduct ofʹ those proceedings.ʺ Id. (quoting OʹShea, 414 U.S. at 501 \n\n(alteration omitted)). DRNY timely appealed.2 \n\n DISCUSSION \n\n DRNY argues that the district court erred in abstaining from \n\nexercising its jurisdiction. In particular, DRNY argues that the district court \n\nerred in holding that the third Younger category applies. It also argues that the \n\ndistrict courtʹs reliance on OʹShea is misplaced. For the reasons set forth below, \n\nwe conclude that the district court correctly abstained under OʹShea. \n\nI. Applicable Law \n\n We review de novo the ʺessentiallyʺ legal determination of whether \n\nthe requirements for abstention have been met. Diamond ʺDʺ Constr. Corp. v. \n\n\n\n \n2 ʺ[A]n order of abstention is considered final for purposes of appeal, at least when \nthe order applies to the entire complaint.ʺ Pathways, Inc. v. Dunne, 329 F.3d 108, 113 (2d \nCir. 2003). \n 9 \n \n\fMcGowan, 282 F.3d 191, 197‐98 (2d Cir. 2002); accord Schlager v. Phillips, 166 F.3d \n\n439, 441 (2d Cir. 1999). \n\n In general, ʺfederal courts are obliged to decide cases within the \n\nscope of federal jurisdiction.ʺ Sprint, 571 U.S. at 72. The Supreme Court, \n\nhowever, has recognized ʺcertain instances in which the prospect of undue \n\ninterference with state proceedings counsels against federal relief.ʺ Id. \n\n Federal courts must abstain where a party seeks to enjoin an \n\nongoing, parallel state criminal proceeding, to preserve the ʺlongstanding public \n\npolicy against federal court interference with state court proceedingsʺ based on \n\nprinciples of federalism and comity. Younger, 401 U.S. at 43‐44. The Younger \n\ndoctrine has been extended beyond ongoing criminal cases to include particular \n\nstate civil proceedings akin to criminal prosecutions, see Huffman v. Pursue, Ltd., \n\n420 U.S. 592 (1975), or that implicate a stateʹs interest in enforcing the orders and \n\njudgments of its courts, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). In Sprint, \n\nthe Supreme Court held that Youngerʹs scope is limited to these three \n\nʺexceptionalʺ categories ‐‐ ʺongoing state criminal prosecution,ʺ ʺcertain civil \n\nenforcement proceedings,ʺ and ʺcivil proceedings involving certain orders \n\n\n\n\n 10 \n \n\funiquely in furtherance of the state courtsʹ ability to perform their judicial \n\nfunctions.ʺ Sprint, 571 U.S. at 78. \n\n Here, only the third category is at issue: civil proceedings involving \n\ncertain orders uniquely in furtherance of the state courtsʹ ability to perform their \n\njudicial functions. Civil contempt orders and orders requiring the posting of \n\nbonds on appeal fall into this category. See NOPSI v. Council of City of New \n\nOrleans, 491 U.S. 350, 368 (1989) (citing Juidice v. Vail, 430 U.S. 327, 336 n.12 (1977); \n\nPennzoil Co., 481 U.S. at 13). In Juidice, the Supreme Court abstained from \n\ninterfering with the ability of New York state courts to issue contempt decrees \n\nbecause ʺ[t]he contempt power lies at the core of the administration of a Stateʹs \n\njudicial system,ʺ and ʺstands in aid of the authority of the judicial system, so that \n\nits orders and judgments are not rendered nugatory.ʺ 430 U.S. at 335, 336 n.12. \n\nIn Pennzoil, the Supreme Court abstained from interfering with the ability of \n\nTexas state courts to require the posting of appeal bonds because of the \n\nʺimportance to the States of enforcing the orders and judgments of their courts.ʺ \n\n481 U.S. at 13. We recently followed this line of cases in finding that abstention \n\nwas appropriate in a case seeking to enjoin New York courts from ordering \n\n\n\n\n 11 \n \n\fattorneysʹ fees in child custody cases. See Falco v. Justices of Matrimonial Parts of \n\nSupreme Court of Suffolk Cty., 805 F.3d 425, 428 (2d Cir. 2015). \n\n Although Younger mandates abstention only when the plaintiff seeks \n\nto enjoin ongoing state proceedings and only in the three instances identified in \n\nSprint, the Supreme Court has also held that even where no state proceedings are \n\npending, federal courts must abstain where failure to do so would result in ʺan \n\nongoing federal audit of state criminal proceedings.ʺ OʹShea, 414 U.S. at 500. In \n\nOʹShea, the plaintiffs sought to enjoin state court judges from carrying out \n\nallegedly unconstitutional policies and practices relating to bond setting, \n\nsentencing, and jury fees in criminal cases. Id. at 491‐92. The Court held that ʺan \n\ninjunction aimed at controlling or preventing the occurrence of specific events \n\nthat might take place in the course of future state criminal trialsʺ would amount \n\nto ʺnothing less than an ongoing federal audit of state . . . proceedings which \n\nwould indirectly accomplish the kind of interference that [Younger] and related \n\ncases sought to prevent.ʺ Id. at 500. Thus, to avoid effecting ʺa major continuing \n\nintrusion of the equitable power of the federal courts into the daily conduct of \n\nstate criminal proceedings,ʺ which is ʺantipathetic to established principles of \n\ncomity,ʺ id. at 501‐02, federal courts must be constantly mindful of the ʺspecial \n\n\n\n 12 \n \n\fdelicacy of the adjustment to be preserved between federal equitable power and \n\nState administration of its own law,ʺ id. at 500 (quoting Stefanelli v. Minard, 342 \n\nU.S. 117, 120 (1951)). Hence, OʹShea is an extension of the principles set forth in \n\nYounger, and although Younger does not apply in the absence of pending \n\nproceedings, see Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) (ʺAbsent any \n\npending proceeding in state tribunals, therefore, application by the lower courts \n\nof Younger abstention was clearly erroneous.ʺ (emphasis in original)), the \n\nconsiderations underlying Younger are still very much at play even when a suit is \n\nfiled prior to the onset of state proceedings, see OʹShea, 414 U.S. at 500; see also \n\nCourthouse News Serv. v. Brown, 908 F.3d 1063, 1072 (7th Cir. 2018) (ʺWhile this \n\ncase does not fit neatly into the Younger doctrine, it fits better into the Supreme \n\nCourtʹs extension of the Younger principles in OʹShea . . . .ʺ). \n\n Like Younger, OʹShea has also been applied in certain civil contexts \n\ninvolving the operations of state courts. See Kaufman v. Kaye, 466 F.3d 83, 86 (2d \n\nCir. 2006) (abstaining under OʹShea from enjoining internal state court judicial \n\nassignment procedures). Many of our sister circuits have abstained in similar \n\nsituations. See Courthouse News Serv., 908 F.3d at 1065‐66 (abstaining under \n\nOʹShea, and the principles of federalism and comity that underly it, from \n\n\n\n 13 \n \n\fenjoining the Clerk of the Circuit Court of Cook County to release newly filed \n\ncomplaints at the moment of receipt); Oglala Sioux Tribe v. Fleming, 904 F.3d 603, \n\n612 (8th Cir. 2018) (abstaining under OʹShea from enjoining allegedly \n\nunconstitutional child custody proceedings because ʺ[t]he relief requested would \n\ninterfere with the state judicial proceedings by requiring the defendants to \n\ncomply with numerous procedural requirementsʺ and ʺfailure to comply with \n\nthe district court’s injunction would subject state officials to potential sanctionsʺ); \n\nMiles v. Wesley, 801 F.3d 1060, 1064, 1066 (9th Cir. 2015) (abstaining under OʹShea \n\nfrom enjoining the Los Angeles Supreme Court from reducing the number of \n\ncourthouses used for unlawful detainer actions); Hall v. Valeska, 509 F. Appʹx 834, \n\n835‐36 (11th Cir. 2012) (per curiam) (abstaining under OʹShea from enjoining \n\nallegedly discriminatory jury selection procedures); Parker v. Turner, 626 F.2d 1, 8 \n\n& n.18 (6th Cir. 1980) (providing that OʹShea establishes a rule of ʺnear‐absolute \n\nrestraint . . . to situations where the relief sought would interfere with the day‐to‐\n\nday conduct of state trialsʺ).3 \n\n\n \n3 While the Supreme Court in Sprint made clear that Youngerʹs scope should be \nlimited to the three specified categories, 134 S. Ct. at 591, 594, the Court did not suggest \nthat abstention under OʹShea should be circumscribed. Indeed, courts have continued \nto apply OʹShea even after Sprint. See, e.g., Courthouse News Serv., 908 F.3d at 1072; \nOglala Sioux Tribe, 904 F.3d at 612; Miles, 801 F.3d at 1064‐65. \n \n 14 \n \n\fII. Application \n\n DRNY first argues that the third category of Younger does not apply \n\nto this case because there is no pending, parallel state court action. Indeed, \n\nDRNY is not seeking to enjoin any specific pending action, but it is instead \n\nseeking to affect the manner in which all Article 17A proceedings ‐‐ present and \n\nfuture ‐‐ are conducted.4 Mindful of the Supreme Courtʹs admonition that the \n\nthree ʺexceptionalʺ categories under Younger are to be narrowly construed, \n\nSprint, 571 U.S. at 73, 78, 82 (noting that the three categories ʺdefine Youngerʹs \n\nscope,ʺ that Younger extends ʺno further,ʺ and that it has not ʺapplied Younger \n\noutside these three ʹexceptionalʹ categoriesʺ), we do not decide whether this case \n\nfits within the third Younger category, for we conclude that it falls squarely \n\nwithin OʹSheaʹs abstention framework. \n\n Our decision in Kaufman v. Kaye is instructive. There, we abstained \n\nunder OʹShea from declaring that New York Stateʹs system for assigning cases \n\n\n\n \n4 We note that DRNYʹs complaint lacks nearly any specificity in its pleading. The \ncomplaint itself merely compares the aspects of two pieces of legislation and fails to \nmention a single individual by name. Indeed, DRNY ʺtenders ʹnaked assertionsʹ devoid \nof ʹfurther factual enhancement.ʹʺ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration \nomitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). As drafted, \nDRNYʹs pleading ʺgive[s] no indication of the circumstances that support the \nconclusory allegation of unlawfulness.ʺ Drimal v. Tai, 786 F.3d 219, 224 (2d Cir. 2015). \n 15 \n \n\famong panels of appellate judges violated the Constitution and we refused to \n\norder the state legislature to establish a new procedure for assigning appeals. \n\nKaufman, 466 F.3d at 84‐85, 87. Doing so, we held, would ʺraise compliance \n\nissues under the putative federal injunctionʺ as well as claims that ʺthe state \n\ncourtʹs chosen remedy violated the Constitution or the terms of that injunction,ʺ \n\nwhich ʺwould inevitably lead to precisely the kind of piecemeal interruptions of \n\nstate proceedings condemned in OʹShea.ʺ Id. at 87 (internal quotation marks and \n\nellipsis omitted). A recent decision of the Ninth Circuit is also helpful. In Miles \n\nv. Wesley, the Ninth Circuit abstained under OʹShea from enjoining the Los \n\nAngeles Supreme Court from, inter alia, eliminating any courthouses that heard \n\nunlawful detainer actions. 801 F.3d at 1064. The court held that the requested \n\ninjunction would result in ʺheavy federal interference in such sensitive state \n\nactivities as administration of the judicial system.ʺ Id. at 1063 (quoting L.A. Cty. \n\nBar Assʹn v. Eu, 979 F.2d 697, 703 (9th Cir. 1992)). \n\n In seeking the injunction in this case, DRNY asked the district court \n\n(and asks this Court now) to direct the New York State Unified Court System, the \n\nChief Judge of the State of New York, and the Chief Administrative Judge for the \n\nCourts of New York to (1) notify all current Article 17A wards of their right to \n\n\n\n 16 \n \n\frequest modification or termination of their guardianship order, (2) hold \n\nproceedings that provide augmented substantive and procedural rights ʺno less \n\nthanʺ those of Article 81 proceedings, and (3) cease future Article 17A \n\nadjudications ʺuntil defendants ensure that the proceedings provide substantive \n\nand procedural rightsʺ on par with those of Article 81 proceedings. Appʹx at 42. \n\n As in OʹShea, DRNYʹs requested relief would effect a continuing, \n\nimpermissible ʺauditʺ of New York Surrogateʹs Court proceedings, which would \n\noffend the principles of comity and federalism. Simply put, DRNY seeks to \n\nʺcontrol[] or prevent[] the occurrence of specific events that might take place in \n\nthe court of future state [Article 17A proceedings.]ʺ OʹShea, 414 U.S. at 500. With \n\nsuch an injunction in place, anyone seeking or objecting to Article 17A \n\nguardianship in the future would be able to ʺraise compliance issues under the \n\nputative federal injunction claiming that the state courtʹs chosen remedy violated \n\nthe Constitution or the terms of that injunction.ʺ Kaufman, 466 F.3d at 87; see also \n\nid. (ʺ[A]ny remedy fashioned by the state would then be subject to future \n\nchallenges in the district court.ʺ). Ongoing, case‐by‐case oversight of state courts, \n\nlike the New York Surrogateʹs Court, is exactly the sort of interference OʹShea \n\nseeks to avoid. Kaufman, 466 F.3d at 86 (ʺ[F]ederal courts may not entertain \n\n\n\n 17 \n \n\factions . . . that seek to impose ʹan ongoing federal audit of state . . . \n\nproceedings.ʹʺ (quoting OʹShea, 414 U.S. at 500)). Indeed, such ʺmonitoring of the \n\noperation of state court functions . . . is antipathetic to established principles of \n\ncomity.ʺ OʹShea, 414 U.S. at 501‐02. Because this Court has ʺno power to \n\nintervene in the internal procedures of the state courtsʺ and cannot ʺlegislate and \n\nengraft new procedures upon existing state . . . practices,ʺ the district court \n\ncorrectly abstained from exercising jurisdiction in this case. See Kaufman, 466 \n\nF.3d at 86 (quoting Wallace v. Kern, 520 F.2d 400, 404‐05 (2d Cir. 1975)). \n\n DRNY argues that federal courts have often found state statutes \n\nunconstitutional, including statutes resulting in the issuance of state court orders. \n\nIt cites landmark decisions such as Obergefell v. Hodges, 135 S. Ct. 2584 (2015) \n\n(holding that Michiganʹs law prohibiting same‐sex marriage violated equal \n\nprotection and due process rights), and Blakely v. Washington, 542 U.S. 296 (2004) \n\n(holding that Washingtonʹs sentencing law violates the Sixth Amendment). But \n\nthose cases did not implicate Younger. Plaintiffs in Obergefell challenged \n\nsubstantive state statutes, and plaintiffs in Blakely simply appealed a final \n\njudgment of the state courts. Here, DRNY seeks a far more substantial invasion \n\nof state courtsʹ domain; it would have federal courts conduct a preemptive \n\n\n\n 18 \n \n\freview of state court procedure in guardianship proceedings, an area in which \n\nstates have an especially strong interest. See Falco, 805 F.3d at 427. Such review \n\nwould directly impede ʺthe normal course of . . . proceedings in the state courts.ʺ \n\nOʹShea, 414 U.S. at 500; see also Sprint, 571 U.S. at 73 (noting that abstention is \n\nproper where relief would impede ʺthe state courtsʹ ability to perform their \n\njudicial functions.ʺ (quoting NOPSI, 491 U.S. at 368)). \n\n DRNY also seeks to have Article 17A declared unconstitutional and \n\nviolative of the Americans with Disability Act and Section 504 of the \n\nRehabilitation Act of 1973. DRNY argues that its request for declaratory relief is \n\nnot subject to abstention, as a declaratory judgment would not order the state \n\ncourts to take certain actions. We are not persuaded. In Samuels v. Mackell, the \n\nSupreme Court held that ʺordinarily a declaratory judgment will result in \n\nprecisely the same interference with and disruption of state proceedings that the \n\nlongstanding policy limiting injunctions was designed to avoid.ʺ 401 U.S. 66, 72 \n\n(1971); see also Miles, 801 F.3d at 1063‐64 (noting that where OʹShea is implicated, \n\neven where plaintiffs narrow their request only to declaratory relief, abstention is \n\nproper where the relief sought ʺwould inevitably set up the precise basis for \n\nfuture intervention condemned in OʹSheaʺ because ʺthe question of defendantsʹ \n\n\n\n 19 \n \n\fcompliance with any remedy imposed could be the subject of future court \n\nchallengesʺ (internal citations omitted)); Kaufman, 466 F.3d at 85 (abstaining \n\nunder OʹShea from hearing Kaufmanʹs complaint seeking injunctive and \n\ndeclaratory relief). Thus, the district court properly abstained from exercising \n\njurisdiction even as to DRNYʹs request for declaratory relief. \n\n We conclude by noting that abstention here is supported by the \n\nʺavailability of other avenues of relief.ʺ OʹShea, 414 U.S. at 504. DRNY may still \n\navail itself of the state courts to challenge the constitutionality of Article 17A \n\nproceedings. See Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., \n\n156 F.3d 432, 435 (2d Cir. 1998) (ʺState courts are courts of general jurisdiction \n\nand are accordingly presumed to have jurisdiction over federally‐created causes \n\nof action unless Congress indicates otherwise.ʺ). DRNY and any aggrieved \n\nindividuals will be able to obtain sufficient review in state court and, if needed, \n\nthe Supreme Court of the United States. See Allen v. McCurry, 449 U.S. 90, 105 \n\n(1980) (noting the Supreme Courtʹs confidence in state courts to adjudicate \n\nconstitutional issues); Kaufman, 466 F.3d at 87‐88. Indeed, New York state courts \n\nhave been diligent in reviewing the sufficiency of Article 17A proceedings, see, \n\ne.g., In re Mark C.H., 906 N.Y.S.2d 419, 427 (Sur. Ct. New York County 2010); In re \n\n\n\n 20 \n \n\fD.D., 19 N.Y.S.3d 867, 869‐71 (Sur. Ct. Kings County 2015), and understand well \n\nthe differences between Article 17A proceedings and Article 81 proceedings, see \n\nIn re Chaim A.K., 885 N.Y.S.2d at 584‐90. \n\n CONCLUSION \n\n Accordingly, for the reasons set forth above, the judgment of the \n\ndistrict court is AFFIRMED. \n\n\n\n\n 21\n[END_CASE]",
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